Com. v. Dukes, S. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHANNON DUKES :
:
Appellant : No. 1765 EDA 2016
Appeal from the Judgment of Sentence May 9, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0013075-2014
BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY BOWES, J.: FILED MARCH 27, 2018
Shannon Dukes appeals from the judgment of sentence of seventeen
to thirty-four years incarceration imposed after he was convicted of robbery,
possession of a firearm by a prohibited person, firearms not to be carried
without a license, carrying a firearm in public in Philadelphia, and possession
of an instrument of crime. We affirm.
The pertinent facts are as follows. At approximately 12:50 a.m., on
November 4, 2014, the victim, Santino Nunez, returned home from work.
While parking his vehicle on Annsbury Street in Philadelphia, Mr. Nunez
observed four black men proceeding northbound on Fourth Street. Mr.
Nunez waited in his car for a few minutes before walking to his home, which
was located one block north at 404 West Raymond Street. When Mr. Nunez
turned onto West Raymond Street, he saw two of the men walking towards
him. As he was about to enter his home, Mr. Nunez became aware that
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those two men were on the street directly behind him. The taller of the two
men brandished a silver handgun, jumped onto Mr. Nunez’s porch, and
attempted to rob him by placing the gun within inches of his face and asking
for the items in his possession. Mr. Nunez feared for his own life, and that
of his family inside the home. When the assailant realized that Mr. Nunez,
who was eighteen at the time of the attack, was a young man, he relented,
and the two men fled towards Fourth Street without taking anything from
the victim.
Mr. Nunez immediately reported the incident to the police. Shortly
thereafter, Officers Richard Hough and William Lynch, who were responding
to an armed robbery by a group of black men on nearby Annsbury Street,
witnessed Appellant, his co-defendant Brandon Bagby, and another
individual walking in the area. The officers noted that men matched the
description of the Annsbury Street assailants provided by the flash
information. As they approached the group, Bagby fled. After a brief chase,
he was apprehended, and the police recovered a silver handgun, which
Bagby attempted to abandon while fleeing. The police then transported Mr.
Nunez to where they were holding Appellant on suspicion of armed robbery.
Mr. Nunez immediately identified Appellant and Bagby as his attackers.
Based on the foregoing, Appellant was charged with the above-
enumerated offenses. Prior to trial, he filed a motion to suppress Mr.
Nunez’s identification arguing, inter alia, that his detention was not
supported by reasonable suspicion, and that he was subjected to an unduly
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suggestive identification procedure. On November 10, 2015, following a
hearing on the matter, the trial court denied Appellant’s motion to suppress.
On November 16, 2015, a jury convicted Appellant as described above, and,
subsequently, the court imposed an aggregate sentence of seventeen to
thirty-four years imprisonment. Appellant filed a timely notice of appeal,
and was granted permission to file an untimely Rule 1925(b) concise
statement of errors complained of on appeal. The trial court authored its
Rule 1925(a) opinion, and this matter is now ready for our review.
Appellant raises three questions for our review:
1. Did the trial court commit an error of law by denying
[A]ppellant’s suppression motion?
2. Was the evidence presented at trial sufficient to uphold the
jury’s verdict of guilty?
3. Does the jury’s verdict of guilty shock one’s sense of justice?
Appellant’s brief at 6-7.
Appellant first challenges the trial court’s denial of his motion to
suppress Mr. Nunez’s out-of-court identification. When reviewing the denial
of a motion to suppress
we are limited to determining whether the suppression court’s
factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. Because
the Commonwealth prevailed before the suppression court, we
may consider only the evidence of the Commonwealth and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
suppression court’s factual findings are supported by the record,
the appellate court is bound by those findings and may reverse
only if the court’s legal conclusions are erroneous. Where the
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appeal of the determination of the suppression court turns on
allegations of legal error, the suppression court’s legal
conclusions are not binding on an appellate court, whose duty it
is to determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of the courts below are
subject to plenary review.
Commonwealth v. Parker, 161 A.3d 357, 361-362 (Pa.Super. 2017)
(citation omitted). Further, “[w]hen reviewing the suppression court’s
rulings, we consider only the suppression record.” Id. at 362 (citation
omitted).
Appellant’s challenge to the suppression court’s ruling is multi-faceted.
First, he claims that the trial court should have suppressed Mr. Nunez’s out-
of-court identification because the police utilized an unduly suggestive
identification procedure. The Commonwealth contends that Appellant
waived this claim by failing to pursue it at the suppression hearing. Upon
review of the record, we agree with the Commonwealth’s assessment.
Although Appellant alleged that he was subjected to an unduly suggestive
identification procedure in his motion to suppress, he did not raise this as a
basis for relief during the suppression hearing. See N.T. Suppression
Hearing, 11/10/15, at 5. Since Appellant did not raise this claim before the
suppression court, we are precluded from conducting meaningful appellate
review. Thus, this claim is waived. Pa.R.A.P. 302.
Next, Appellant argues that the police lacked reasonable suspicion
when he was detained, and thus, Mr. Nunez’s out-of-court identification
should have been suppressed as fruit of the poisonous tree. It is well-
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established that there are three categories of encounters between citizens
and the police:
(1) A mere encounter, (2) an investigative detention, and (3)
custodial detentions. The first of these, a “mere encounter” (or
request for information), which need not be supported by any
level of suspicion, but carries no compulsion to stop or to
respond. Second, an “investigative detention” must be
supported by reasonable suspicion; it subjects a suspect to a
stop and a period of detention, but does not involve such
coercive conditions as to constitute the functional equivalent of
an arrest. Finally, an arrest or “custodial detention” must be
supported by probable cause.
Commonwealth v. Baldwin, 147 A.3d 1200, 1202 (Pa.Super. 2016)
(citation omitted). In order to establish reasonable suspicion, an officer
“must be able to articulate something more than an inchoate and
unparticularized suspicion or hunch” that a suspect committed a crime.
Commonwealth v. Williams, 125 A.3d 425, 432 (Pa.Super. 2015) (citation
omitted). In making this determination, we consider the totality of the
circumstances. Id. Further, “[a]mong the factors to be considered in
establishing a basis for reasonable suspicion are tips, the reliability of the
informants, time, location, and suspicious activity, including flight.”
Commonwealth v. Morrison, 166 A.3d 357, 364-65 (Pa.Super. 2017)
(citation omitted).
Essentially, Appellant calls into question the reliability of the
information upon which the police based its investigatory stop. He notes
that Officers Hough and Lynch were responding to a separate flash
information related to an alleged armed robbery on Annsbury Street, as
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opposed to the suspected armed robbery which occurred shortly thereafter
on West Raymond Avenue. Appellant contends that it was improper for the
police to have Mr. Nunez attempt to identify his assailants since the police
were initially responding to a separate incident. In this vein, he asserts that
the description of the suspects varied between the two incidents, and in any
case, Appellant did not match those descriptions. Moreover, he argues that
he was seized three blocks south of West Raymond Street, whereas the flash
information indicated that the suspects were last seen fleeing north from
West Raymond Street. Thus, he concludes that, based on these
circumstances, it was unreasonable for the police to detain Appellant and to
permit Mr. Nunez to make an on-scene identification.
At the suppression hearing, Philadelphia Police Officer Richard Hough
testified as follows. On November 4, 2014, he was dispatched to the area
around West Raymond Street at 12:53 a.m., following a report of an armed
encounter on Annsbury Street. N.T. Suppression Hearing, 11/10/15, at 6-8.
The dispatch report described the suspects as “[t]hree black males, one,
black leather jacket, red hoodie; number two, black hoodie; number three,
black hoodie, armed with guns trying to break in the front door.” Id. at 9.
While traveling on Bristol Street, Officer Hough observed three black
males, “which fit the description almost to a T walking west on the highway.”
Id. at 10. His partner requested that the men stop, at which point, Bagby
fled north on Fourth Street. Id. at 11. Officer Hough stayed with the other
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two men, including Appellant, until Mr. Nunez arrived and identified
Appellant. Id. at 11-13.
On cross-examination, Officer Hough testified that, at the time of their
seizure, one suspect was wearing a dark green jacket and red shirt, the
second was wearing a black jacket with green pants, and the third male was
wearing a black hoodie.1 Id. at 15-16. In addition, he noted that the
dispatch report for the West Raymond Street incident described those
suspects as “four black males, black coat, jeans, Tims [(Timberland Boots)],
clean shaven, dark complected, with gun. No flash on the other. Nothing
taken. Last going northbound on 4th Street. Male complainant inside.” Id.
at 17-18. He then read into the record the biographical information
pertaining to Appellant taken after his arrest, which indicated, “[Appellant]
was [wearing a] dark green jacket over red shirt, dark hat, jeans, tan
boots.” Id. at 20. He conceded that Bristol Street was three blocks south of
West Raymond Street. Id. at 21. However, at the time of the stop, he did
not observe anyone else in the area that matched the flash information. Id.
at 23.
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1 Although Officer Hough initially testified that Bagby was wearing a dark
green jacket and red shirt at the time of his apprehension, he later clarified
that he had Bagby and Appellant confused. N.T. Suppression, 11/10/15, at
22-24. He noted that Bagby was wearing “a black jacket, green camo
pants.” Id. at 22.
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Detective William Lynch also offered testimony on behalf of the
Commonwealth. Detective, then Officer, Lynch, was partners with Officer
Hough at the time of the incident. Id. at 28. Detective Lynch corroborated
much of Officer Hough’s account of the event in question. In addition, he
clarified that Appellant’s jacket appeared to be a leather jacket “because it
was made of a shiny material.” Id. at 32. Further, Detective Lynch
asserted that the area was known for “numerous gunpoint robberies,” and
characterized it as a high crime area. Id. at 33-35.
When reviewing the record of the suppression hearing, we find that, in
light of the totality of the circumstances, the suppression court did not err in
denying Appellant’s motion to suppress. Instantly, we observe that, at the
time of the stop, Officers Hough and Lynch were responding to the report of
an armed robbery, conveyed to the 911 operator by the purported victim.
That victim described her assailants as three black men, two of which were
wearing black hoodies, and one of which was wearing a black leather jacket
with a red hoodie underneath. The officers observed Appellant with two
other black men only three blocks from the alleged incident, and only
minutes after the initial report. At that time, the three men were wearing
dark clothing similar to that described in the flash information, and Appellant
wore a red shirt underneath his jacket. Officer Hough stated that the
individuals matched the description provided, and that there were no other
individuals in the area. Moreover, when the officers attempted to question
the men, Bagby fled the scene and attempted to abandon a firearm in his
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possession. Officer Lynch testified that the area was a high crime area, and
stated that Appellant’s black jacket appeared to be leather, even though he
later discovered that it was not.
In light of the above, when considering the totality of the
circumstances, we find that the officers articulated sufficient reasons to
establish Appellant’s seizure was supported by reasonable suspicion.
Williams, supra; Morrison, supra. In so finding, we are not persuaded by
Appellant’s contention that discrepancies in the descriptions provided by the
flash information, and Appellant’s actual appearance at the time of the
arrest, undermined the officers’ reasonable belief that these men were
involved in the armed robbery nearby.
Moreover, since the incident involving Mr. Nunez occurred minutes
later and only one street away from the Annsbury Street armed robbery, it
was reasonable for the officers to transport Mr. Nunez for an on-sight
identification. To the extent that Appellant’s argument can be construed as
asserting that an officer’s decision to transport a victim to provide an on-
sight identification must be supported by reasonable suspicion, he cites no
case law in support of this position, and we will not hold that to be the case
herein. As Appellant’s investigatory detention was supported by reasonable
suspicion, the suppression court did not err in denying his motion to
suppress. Hence, no relief is due.
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Appellant’s second issue disputes the sufficiency of the evidence
underpinning his conviction. In addressing a sufficiency challenge, we are
guided by the following principles:
In reviewing the sufficiency of the evidence, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn from that evidence, when viewed in the light
most favorable to the Commonwealth as verdict winner, was
sufficient to enable the fact finder to conclude that the
Commonwealth established all of the elements of the offense
beyond a reasonable doubt. The Commonwealth may sustain its
burden by means of wholly circumstantial evidence. Further, the
trier of fact is free to believe all, part, or none of the evidence.
Commonwealth v. Sunealitis, 153 A.3d 414, 419 (Pa.Super. 2016)
(citation omitted).
Appellant does not directly contest any of the elements of the offenses
he was convicted of, but rather, he challenges Mr. Nunez’s identification of
him as his attacker. He posits that Mr. Nunez’s identification was tainted by
the police, and his testimony in this regard was too unreliable and
contradictory to be considered a sufficient basis for his conviction. Appellant
highlights portions of Mr. Nunez’s testimony where he described Appellant as
“clean shaven” at the time of the attack, when, in fact, Appellant had facial
hair. Further, he emphasizes Mr. Nunez’s statements indicating the porch
where the incident occurred was not well lit, that he was focused on the gun
at the time of the attack, and that he had not previously seen Appellant, as
further proof that Mr. Nunez’s testimony was unreliable. Hence, in light of
Mr. Nunez’s unreliable and contradictory testimony, he concludes “[n]o
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reasonable jury could have found beyond a reasonable doubt that
[A]ppellant was the person who committed a robbery.” Appellant’s brief at
17.
Instantly, Mr. Nunez identified Appellant as his assailant in court. N.T.
Trial, 11/10/15, at 37; 39. He also explained the relevant circumstances
surrounding the event in question at trial. Mr. Nunez stated that, as he
attempted to enter his house, “[Appellant] pulled out a gun and told me to
move away from the door, to shut, up, move to the side, move to the side.”
Id. at 38. He indicated that, at this time, Appellant was “[d]irectly in my
face, not even a foot away,” and that the event lasted three to five minutes.
Id. at 40-41. Mr. Nunez testified that he viewed the firearm for around “30
seconds from the moment he was pointing it at me[,]” and that he observed
Appellant’s face “within that whole two-minute, three-minute situation.” Id
at 41; 49. He conceded that the porch was “really dark,” and that the only
light was provided by nearby streetlights. Id. at 43.
Following the robbery, Mr. Nunez contacted police and provided them
with a description of his attackers, noting that Appellant was wearing “dark
blue jeans, Timberlands, and probably like a sweater.” Id. at 47. He stated
that the police officer explained to him that they had his attackers “in
custody, and they wanted me to identify them.” Id. at 46. Mr. Nunez
asserted that, when he made the identification, he did so based on “what
they were wearing.” Id. at 48-49.
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On cross-examination, Mr. Nunez testified that he informed the police
that his attacker was clean-shaven and had a dark complexion, and that he
could see Appellant’s face because of the nearby streetlight. Id. at 70-71.
He conceded that, based on the arrest photo from the night in question,
Appellant had facial hair. Id. at 74. Nonetheless, Mr. Nunez clarified that,
when he identified Appellant, he did not see hair on his face. Id. He
explained, “I guess I missed the hair on the bottom of his face here,” and
that he did not see Appellant’s mustache “because it’s a little bit of a lighter
mustache.” Id. at 75. Further, he noted that when the police took him to
identify his assailants, “I took a moment, looked at them, and said yes[,]”
indicating that the men in custody were his attackers. Id. 76. He also
clarified that the police officer who transported him to the on-scene
identification did not tell him that they had apprehended his assailants, but
only that they had stopped men that “matched the description that I gave.”
Id. at 83-84. Finally, Mr. Nunez testified that he could not remember if he
told the dispatcher that Appellant was clean-shaven. Id. at 89.
When viewing this evidence in the light most favorable to the
Commonwealth as verdict winner, we find that the Commonwealth
established sufficient evidence to prove beyond a reasonable doubt that
Appellant robbed Mr. Nunez on the night in question. Contrary to
Appellant’s protestations, we do not find that Mr. Nunez’s testimony
regarding the identity of his assailant was so unreliable and inconsistent to
undermine his conviction. Mr. Nunez explained that he identified Appellant
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as his attacker based largely on this clothing. Moreover, he stated that he
could see Appellant’s face with the aid of the streetlights, and that he was
able to view Appellant for over two minutes during the encounter.
Further, although Appellant had facial hair at the time of his arrest,
and Mr. Nunez may have initially described his attacker as clean-shaven, he
explained that he did not see Appellant’s facial hair during the incident or
on-scene identification. Mr. Nunez stated that he immediately recognized
Appellant as his attacker on the night in question, and identified him as such
on the record during trial. The jury was free to believe all, part, or none of
Mr. Nunez’s testimony, Sunealitis, supra, and it clearly found him credible
in this regard. As the record supports Mr. Nunez’s identification, no relief is
due.
Finally, Appellant offers a challenge to the weight of the evidence
presented against him. In reviewing such a claim, we do not step into the
shoes of the trial judge, but rather,
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
was against the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
a trial court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations
omitted).
In this respect, Appellant relies primarily on his challenge to the
sufficiency of the evidence, arguing “the exact same evidence upon which
the jury based its verdict cannot possibly justify a guilty verdict.”
Appellant’s brief at 17. After enunciating the appropriate standard, the trial
court observed:
In the instant case, Appellant and his co-defendant were
immediately identified by [Mr. Nunez] after the police stopped
Appellant, co-defendant Bagby, and David Flipper. At trial, [Mr.
Nunez] identified Appellant as the individual who confronted him
outside of 404 West Raymond Street and pointed a silver
handgun directly in his face. Here, the jury chose to credit the
testimony of [Mr. Nunez], the police officers and detectives
investigating the case. The fact that the jury found Appellant
guilty after weighing all of the evidence does not shock one’s
sense of justice.
Trial Court Opinion, 1/23/16, at 5. We discern no abuse of discretion in the
trial court’s conclusion that Appellant’s verdict was not against the weight of
the evidence. Thus, this claim fails.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/18
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