Com. v. Jackson, L. ( 2016 )


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  • J-S28009-16
    
    
    
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    
    COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                                Appellee
    
                           v.
    
    LESTER JACKSON,
    
                                Appellant              No. 1889 EDA 2015
    
    
                 Appeal from the Judgment of Sentence April 30, 2015
                 In the Court of Common Pleas of Philadelphia County
                  Criminal Division at No(s): CP-51-CR-0001995-2012
    
    
    BEFORE: BOWES, LAZARUS AND PLATT,* JJ.
    
    MEMORANDUM BY BOWES, J.:                            FILED APRIL 12, 2016
    
           Lester Jackson appeals from the April 30, 2015 judgment of sentence
    
    of ten to twenty-three months house arrest with work release followed by
    
    three years probation, which was imposed following his robbery conviction.
    
    After careful review, we affirm.
    
           The events giving rise to Appellant’s conviction are gleaned from the
    
    testimony at trial.1 At 10:30 p.m. on June 16, 2011, Peter Konstantopoulos
    
    was robbed at gunpoint in the 1800 block of Bainbridge Street in
    
    Philadelphia by two men as he was walking home after dinner at a
    
    restaurant. Mr. Konstantopoulos testified that he was texting from his cell
    ____________________________________________
    
    
    1
      Appellant and co-defendant Zakee Davis were tried together. This was a
    re-trial following a jury trial that ended in a mistrial.
    
    
    
    * Retired Senior Judge assigned to the Superior Court.
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    phone when he bumped into someone who was walking toward him. As he
    
    looked up to apologize, there were two men in front of him. The taller one
    
    demanded, “give us your stuff,” and pointed a gun at his head. N.T. Trial
    
    (Waiver) Vol. I, 1/14/15, at 15.     The victim tendered his wallet to the
    
    gunman and the two men fled east on Bainbridge and then turned south on
    
    17th Street. The second man did not say anything during the robbery.
    
            The victim telephoned 911 and Philadelphia Police Officers Aaron
    
    Horne, Jr., and his partner, Jonathan Ruth, responded to the call. The victim
    
    supplied physical descriptions of his assailants. The man with the gun was a
    
    black male approximately 5’11” or 6 feet tall, in his mid-twenties, and
    
    thinner than the victim. The second man was also a black male about 5’8”
    
    tall.   The victim told police at the time that the gunman was wearing a
    
    maroon shirt and the other man was wearing a blue shirt, but at trial he
    
    could not recall which assailant was wearing which shirt. The victim entered
    
    the patrol car and accompanied the officers as they canvassed the area
    
    looking for the robbers. They drove into a parking lot where police officers
    
    had detained two men, whom Mr. Konstantopolous identified as his
    
    assailants. Id. at 44.
    
            Sergeant Horne testified that when he and his partner, now Sergeant
    
    Ruth, arrived at the scene of the robbery, they immediately placed Mr.
    
    Konstantopolous in the back seat of their cruiser.   Id. at 57.   The victim
    
    provided a description of his assailants, which they flashed over the radio.
    
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    They surveilled the area for ten or fifteen minutes, and then pulled into a
    
    parking lot adjacent to an apartment building.        The officer had seen
    
    movement in a minivan that was parked in the lot and its seats were
    
    reclined. He waited until two men exited the vehicle and then called to them
    
    so they would turn around. The officer asked the victim if the men were his
    
    assailants, and he responded in the affirmative.    The victim pointed out,
    
    however, that they were now wearing different clothing: white undershirts.
    
          Two other police officers, Christopher Warwick and Wayne Stinson,
    
    were on foot in the area of the parking lot. After the victim identified the
    
    men as his assailants, Officer Horne radioed the officers and directed them
    
    to stop the men. Officer Warwick brought Appellant and his cohort in front
    
    of Officer Horne’s patrol car so that the car’s headlights would illuminate
    
    their faces.   The victim “was very confident and was sure that those were
    
    the guys.” Id. at 59-60. Appellant and his co-defendant were placed into
    
    custody by Officers Warwick and Stinson, and transported to South
    
    Detectives. Id. at 60.
    
          Officer Warwick, now a New Jersey State Police Trooper, testified that
    
    he and Officer Stinson were on foot near the apartment complex on 17 th
    
    Street.   Appellant and his co-defendant walked toward them.     Pursuant to
    
    instructions he received over the radio, he briefly detained them for
    
    purposes of identification. After the victim positively identified the men as
    
    
    
    
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    his assailants, he took them into custody. A search warrant was obtained
    
    for the minivan and a blue shirt was recovered from the vehicle.
    
           At trial, the victim again identified Appellant and his co-defendant as
    
    the perpetrators of the robbery. He testified that Appellant wielded the gun,
    
    which he described as small and dark gray or black, in color. Although the
    
    street where the robbery took place was dark, “you could see.” Id. at 24.
    
    He stated that when he identified Appellant and his cohort in the parking lot
    
    after the robbery, the area was “more poorly lit than the street, but we had
    
    the headlights of the cop car to help me with lighting.” Id. at 29. On cross-
    
    examination at trial, the victim steadfastly maintained that when he saw the
    
    two men in the minivan shortly after the crime, he “wholeheartedly
    
    believe[d]” they were the robbers.             Id. at 50.   He subsequently identified
    
    the two men at line-ups.
    
           The trial court found Appellant guilty of robbery and not guilty of
    
    conspiracy.2     Following sentencing, the Commonwealth filed a motion to
    
    modify Appellant’s sentence to incarceration rather than house arrest. On
    
    June 9, 2015, after a hearing, the court denied the motion. Appellant timely
    
    filed the within appeal and complied with the court’s order to file a Pa.R.A.P.
    
    1925(b) concise statement of errors complained of on appeal.                 The trial
    
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    2
      Co-defendant Davis was charged only with conspiracy and the trial court
    found him not guilty of that offense.
    
    
    
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    court filed its Rule 1925(a) opinion, and the matter is ripe for our review.
    
    On appeal, Appellant presents one issue for our consideration:
    
                 Was the evidence presented at trial sufficient as a matter
          of law to support the conviction for robbery under 18 Pa.C.S.A. §
          3710(a)(1)(ii) where there was no evidence corroborating the
          identification made by the complainant, as the co-defendant also
          identified by complainant was acquitted by this Honorable Court,
          no proceeds of the robbery were recovered, the weapon utilized
          in the crime was not recovered, defendant and co-defendant
          approached police following the crime rather than fleeing, and
          the complainant was under the influence of alcohol and in
          circumstances undermining the reliability of his identification of
          defendant as a perpetrator?
    
    Appellant’s brief at 4.
    
          In determining whether the evidence was sufficient to support a
    
    verdict, we view the evidence and all reasonable inferences to be drawn
    
    therefrom   in   the   light   most   favorable   to    the   verdict    winner,    the
    
    Commonwealth      herein.      Commonwealth        v.    Watley,        
    81 A.3d 108
    
    (Pa.Super. 2013) (en banc). Furthermore,
    
          Evidence will be deemed sufficient to support the verdict when it
          established each element of the crime charged and the
          commission thereof by the accused, beyond a reasonable doubt.
          Nevertheless, the Commonwealth need not establish guilt to a
          mathematical certainty, and may sustain its burden by means of
          wholly circumstantial evidence.       Significantly, we may not
          substitute our judgment for that of the factfinder; if the record
          contains support for the convictions they may not be disturbed.
    
    Commonwealth v. Brewer, 
    876 A.2d 1029
    , 1032 (Pa.Super. 2005)
    
    (citations and internal quotations omitted). The issue is one of law, and our
    
    standard of review is de novo and our scope of review is plenary.
    
    Commonwealth v. Weimer, 
    977 A.2d 1103
    , 1104-5 (Pa. 2009).
    
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           Although Appellant raises a challenge to the sufficiency of the
    
    evidence, he makes no claim that the Commonwealth has failed to offer
    
    proof of any specific element of robbery. Instead, he challenges the legal
    
    sufficiency of the victim’s identification of him as the perpetrator of the
    
    robbery. He characterizes the victim’s identification as uncorroborated, and
    
    maintains that other circumstances tended to undermine its reliability.
    
           The record reveals the following.         The victim observed his assailants
    
    for approximately two minutes as they stood within an arm’s length.
    
    Although it was nighttime, he could see. The victim described Appellant, the
    
    gunman, as 5’11’ or 6’ tall, in his mid-twenties, and thinner than Appellant
    
    himself.3 The gun he pointed at his head was small, dark gray or black in
    
    color, and largely covered up by Appellant’s hand. Although the victim could
    
    see the barrel and the cylinder, he could not tell whether Appellant’s finger
    
    was on the trigger. One of the men was wearing a blue shirt, the other a
    
    red or maroon shirt.
    
           The victim positively identified his assailants within one-half hour of
    
    the robbery.      He confirmed that identification from the back seat of the
    
    patrol car as Appellant and his co-defendant stood in the car’s headlights.
    
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    3
      In his original statement to police, Mr. Konstantopolous also described
    Appellant as unshaven, with a little bit of facial hair, short hair close to the
    head, and darker skinned. He was wearing a short sleeve maroon shirt and
    blue jeans.
    
    
    
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    Several months after the robbery, Mr. Konstantopolous identified Appellant
    
    at a line-up. He subsequently identified Appellant at the pre-trial, the first
    
    trial, and the instant trial.
    
            The trial court herein acknowledged that the victim’s identification was
    
    opinion evidence for the factfinder to weigh. Trial Court Opinion, 10/1/15, at
    
    10, (citing Commonwealth v. Sharpe, 
    10 A.2d 120
    , 121-22 (Pa.Super.
    
    1039)).     The court added, “an identification made by a single witness is
    
    sufficient to convict as long as it carries some indicia of accuracy and
    
    reliability.” Trial Court Opinion, 10/1/15, at 9. As the trial court correctly
    
    noted, there      is no     rule   that eyewitness identification testimony be
    
    corroborated in order to sustain a conviction.4
    
            The trial court looked to our decision in Commonwealth v. Brown,
    
    
    23 A.3d 544
    , 558 (Pa.Super. 2011), where we were reviewing the propriety
    
    of a one-on-one identification. We held therein that the central inquiry was
    
    whether, “under the totality of the circumstances, the identification was
    
    reliable.” Id. at 558 (citing Commonwealth v. Moye, 
    836 A.2d 973
    , 976
    
    (Pa.Super. 2003)). In ascertaining the reliability of identification testimony
    
    in Brown, we applied the following factors: "the opportunity of the witness
    
    to view the perpetrator at the time of the crime, the witness' degree of
    
    attention, the accuracy of his prior description of the perpetrator, the level of
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    4
        Neither the gun nor the proceeds of the robbery was recovered.
    
    
    
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    certainty demonstrated at the confrontation, and the time between the crime
    
    and confrontation.”      Id. (quoting McElrath v. Commonwealth, 
    592 A.2d 740
    , 743 (Pa.Super. 1991).
    
          In Brown, the eyewitness, Golla, was six to twelve inches away from
    
    Brown when she saw his face. She described his appearance and identified
    
    him as the robber shortly after the robbery occurred. The jury, as the finder
    
    of fact at trial, heard her testimony and credited her identification as
    
    reliable.   The trial court herein concluded that Mr. Konstantopolous’s
    
    identification   of    Appellant   and   his   co-defendant    was,      “in   probative
    
    substance,” equal to that of the eyewitness in Brown, supra.
    
          Although this Court noted in Commonwealth v. Minnis, 
    458 A.2d 231
    , 233 (Pa.Super. 1983), that a “vague, tenuous and uncertain”
    
    identification standing alone is insufficient, we reiterated therein that,
    
    "evidence of identification . . . needn't be positive and certain in order to
    
    convict, and     any    indefiniteness   and   uncertainty    in   the    identification
    
    testimony goes to its weight.” (quoting Commonwealth v. Hickman, 
    309 A.2d 564
    , 566 (Pa. 1973)). Accord, Commonwealth v. Kloiber, 
    106 A.2d 820
     (Pa. 1954). Herein, however, the victim’s identification of Appellant was
    
    unequivocal.     Furthermore, we agree with the trial court that, given the
    
    totality of the circumstances, the identification was sufficiently reliable to
    
    support Appellant’s robbery conviction.
    
    
    
    
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          Appellant maintains, however, that the circumstances of this case
    
    “undermine, rather than corroborate, the reliability of the identification.”
    
    Appellant’s brief at 18. In support of his position, he cites our High Court’s
    
    decision in Commonwealth v. Walker, 
    92 A.3d 766
     (Pa. 2014), where the
    
    Court noted that there were studies and scientific research which tended to
    
    discredit eyewitness identifications in certain circumstances.   For instance,
    
    Appellant points to a study described therein showing that when a weapon is
    
    used, focus shifts to the weapon, which impairs eyewitness memory and the
    
    accuracy of identification.     Additionally, Appellant relies upon a study
    
    mentioned in Walker that purportedly indicates that identification is less
    
    reliable in cases involving persons of different races and that accuracy is
    
    reduced when the event is a high stress criminal event. Finally, Appellant
    
    discusses science finding little correlation between the witness’s confidence
    
    in his identification and the accuracy of that identification.
    
          Appellant would have us apply those phenomena to the circumstances
    
    herein, and find the eyewitness identification unreliable. Appellant contends
    
    that the robbery was a high stress event for the victim as it occurred on a
    
    dark street at night. A weapon distracted the victim from the faces of his
    
    robbers, and consequently, the description provided to police was non-
    
    specific. The victim and his assailants were of different races, the encounter
    
    lasted two minutes, and it was dark.
    
    
    
    
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          The Commonwealth counters that these arguments go to the weight of
    
    the evidence rather than its sufficiency.       The Commonwealth contends
    
    further, and Appellant concedes, that he did not preserve a weight claim as
    
    he failed to file a post-sentence motion.     See Appellant’s brief at 19 n.8.
    
    Thus, any challenge to the weight of the evidence is waived.
    
          Appellant mischaracterizes Walker.        Our Supreme Court did not
    
    definitively accept the conclusions from the research and studies involving
    
    eyewitness identification.    The Court merely noted that such research
    
    existed in arriving at its holding that expert testimony regarding eyewitness
    
    identification is no longer per se impermissible in this Commonwealth. There
    
    was no expert testimony proffered in the instant case regarding the impact
    
    of a weapon, the involvement of a victim and assailant of different races, or
    
    the fact that the interaction was a stressful one upon the eyewitness
    
    identification.   Furthermore, had there been such expert testimony, the
    
    factfinder would have been free to believe all, part, or none of that evidence,
    
    and to assess the credibility of the expert. Commonwealth v. Diamond,
    
    
    83 A.3d 119
    , 134 (Pa. 2013). Such considerations go to the weight of the
    
    evidence, not to its sufficiency.    Appellant waived any challenge to the
    
    weight of the evidence by failing to file a post-sentence motion.
    
          The trial court, sitting as the finder of fact, concluded that the victim’s
    
    identification of Appellant as the gunman was “of more than sufficient
    
    reliability, quantity and weight to support the conviction.”         Trial Court
    
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    Opinion, 10/1/15, at 7. On the record before us, we have no basis to disturb
    
    that finding.
    
          Judgment of sentence affirmed.
    
    Judgment Entered.
    
    
    
    
    Joseph D. Seletyn, Esq.
    Prothonotary
    
    
    
    Date: 4/12/2016
    
    
    
    
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