Commonwealth v. Sanders

• Decision Date: 29 February 2012
• Docket Number: No. 1641 EDA 2010,1641 EDA 2010
• Citation: 42 A.3d 325
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Antwon SANDERS, Appellant.
• Court: Pennsylvania Superior Court

42 A.3d 325

COMMONWEALTH of Pennsylvania, Appellee

v.Antwon SANDERS, Appellant.

No. 1641 EDA 2010

Superior Court of Pennsylvania.

Submitted Nov. 4, 2011.

Filed Feb. 29, 2012.

Gary S. Server, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney and James F. Gibbons, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, SHOGAN, and PLATT^* , JJ.

OPINION BY BOWES, J.:

Antwon Sanders appeals from the judgment of sentence of twelve and one-half to twenty-five years incarceration imposed by the trial court after he was convicted of two counts of aggravated assault, and one count each of possession of an instrument of crime ("PIC") and persons not to possess firearms. After careful review, we affirm.

The pertinent facts follow. At approximately 3:00 p.m. on February 20, 2009, three high school students, Fateem Gresham, Deshaoun Williams, and Rashan Singletary, were walking together in the area of 60th and Irving Streets in Philadelphia. Appellant approached the boys and, after walking past them, turned around and pulled a firearm on the boys, firing five to ten shots. Mr. Gresham was shot in the back, suffering severe injuries. Police arrived shortly thereafter and Mr. Gresham was transported to the University of Pennsylvania Hospital. The other two individuals managed to escape unharmed.

One week after the shooting, Detective William Farrell visited Mr. Gresham in the hospital. An unidentified doctor permitted the detective to speak with Mr. Gresham, although he was being prepared for surgery. Detective Farrell presented Mr. Gresham with a photographic array. Mr. Gresham placed his finger on a photograph of Appellant. However, Mr. Gresham stated that he was too weak to sign his name on the photographic array. Accordingly, Detective Farrell asked Mr. Gresham's mother, whom he stated was present in the room, to sign the array. At trial, Mr. Gresham testified that he had no memory of this interaction and that following the shooting he was semi-conscious for one month and one-half. Mr. Gresham did spend part of his time in the hospital in a coma. He also remarked that he had no memory of the shooting itself. Mr. Gresham's mother also testified that she was not allowed to be present when the photographic array was given to her son.

Approximately two months after the initial identification, Detective Farrell conducted an interview with Mr. Gresham. Detective Farrell stated that Mr. Gresham described the attack, again identified Appellant as the person who shot him, and signed a written statement to that effect. Mr. Gresham recalled that during this interview the detective informed him what had happened.

Another detective, Detective Matthew Farley, interviewed Deshaoun Williams. Mr. Williams, at the time of the interview, was a minor and was in custody for unrelated charges. Detective Farley maintained that Mr. Williams asserted that he saw the shooting and described the shooter as an individual with a funny-shaped head wearing a green and black hoodie and black trench coat. Mr. Williams also reportedly described the attacker as being 5'4? or 5'5?, skinny, and seventeen years of age. Appellant was 5'6? and 130 pounds at the time of his arrest. At trial, Mr. Williams testified that he was in a pizza shop at the time of the shooting and did not see the incident. He further provided that when he was interviewed by police, he was intoxicated and requested to speak with his mother and was informed that she could not see him.

Ultimately, after the denial of a suppression motion relating to the photographic identification, a jury found Appellant guilty of the aforementioned charges. Subsequently, the court sentenced him to an aggregate term of incarceration of twelve and one-half to twenty-five years. Appellant timely filed a post-sentence motion, which the trial court denied. This appeal ensued. Appellant now raises four issues for our consideration.

I. Whether the Court erred when it denied the Appellant's suppression motion where the police used an unduly suggestive and inherently unreliable procedure.

II. Whether the Appellant's convictions were against the weight of the evidence where identification witnesses recanted and where the evidence adduced at trial established that the identification of the Appellant was not positive or consistent with prior descriptions of the perpetrator.

III. Whether the Appellant's convictions were based upon sufficient evidence that the Appellant was the actual perpetrator of the crimes.

IV. Whether the Court erred when it denied the Appellant's request for a Kloiber instruction.

Appellant's brief at 6.

Appellant's third issue challenges the sufficiency of the evidence. Since such a claim, if successful, prohibits re-trial, we address this issue first. See Commonwealth v. Stokes, 2011 PA Super 261, 38 A.3d 846.

We must determine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, when viewed in a light most favorable to the Commonwealth as verdict winner, support the conviction beyond a reasonable doubt. Where there is sufficient evidence to enable the trier of fact to find every element of the crime has been established beyond a reasonable doubt, the sufficiency of the evidence claim must fail.

The evidence established at trial need not preclude every possibility of innocence and the fact-finder is free to believe all, part, or none of the evidence presented. It is not within the province of this Court to re-weigh the evidence and substitute our judgment for that of the fact-finder. The Commonwealth's burden may be met by wholly circumstantial evidence and any doubt about the defendant's guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Mobley, 14 A.3d 887, 889–890 (Pa.Super.2011).

Appellant's argument is less than developed and the only citation provided is to our standard of review. The limited argument that Appellant does make is that the Commonwealth's case was contradictory and of "questionable veracity." Appellant's brief at 16. In presenting this position, Appellant appears to argue that there was insufficient evidence to support his identification. See Appellant's brief at 17 ("there was insufficient evidence for the jury to conclude beyond a reasonable doubt that the Appellant was accurately identified and therefore that each and every element of the crimes against the Appellant had been proven.").

The Commonwealth responds that Appellant has ignored the appropriate standard of review for sufficiency claims. We agree. The evidence must be viewed in a light most favorable to the verdict winner and the credibility of the witnesses is not to be re-weighed on appeal. Since the prior identifications were admitted as substantive evidence, the jury was free to conclude that Appellant was the shooter.¹

Thus, Appellant's sufficiency argument fails.

Appellant also challenges the court's pre-trial suppression ruling, which permitted Mr. Gresham's photographic identification to be introduced into evidence. Our standard and scope of review in suppression matters is established.

We are limited to determining whether the lower court's factual findings are supported by the record and whether the legal conclusions drawn therefrom are correct. We may consider the evidence of the witnesses offered by the Commonwealth, as verdict winner, and only so much of the evidence presented by [the] defense that is not contradicted when examined in the context of the record as a whole. We are bound by facts supported by the record and may reverse only if the legal conclusions reached by the court were erroneous.

Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa.Super.2010) (en banc ). When analyzing the admission of identification evidence, a suppression court must determine "whether the challenged identification has sufficient indicia of reliability[.]" Commonwealth v. Bruce, 717 A.2d 1033, 1037 (Pa.Super.1998). This question is examined by focusing on the totality of the circumstances surrounding the identification. Id. at 1036. In deciding the reliability of an identification, a suppression court should evaluate the opportunity of the witness to see the criminal at the time the crime occurred, the witness's degree of attention, the accuracy of any description given, the level of certainty when identification takes place, and the period between the crime and the identification. Id. at 1037.

Appellant argues that Mr. Gresham was not sufficiently cogent and lucid to make an accurate identification when he was shown the photographic array. He submits that the detective did not question a doctor about any drugs that had been administered to Mr. Gresham, who at the time of the identification was being prepared for surgery. Appellant asserts that the reliability of the identification is suspect because Mr. Gresham was unable to sign the photographic array and was under the influence of drugs. Furthermore, according to Appellant, "there was an absence of corroborating circumstances indicating that Gresham had seen with any degree of certainty the person who shot him[.]" Appellant's brief at 13. The Commonwealth counters that because Appellant concedes that there was no deliberate police misconduct, suppression of the pre-trial identification was unwarranted.

We find the rationale expressed in Commonwealth v. O'Bryant, 320 Pa.Super. 231, 467 A.2d 14 (1983), persuasive. The O'Bryant Court reasoned that the purpose of a suppression order regarding exclusion of identification evidence is to prevent improper police action.² Thus, where a defendant does not show that improper police conduct resulted in a suggestive identification, suppression is not warranted.³ In the case sub judice, Appellant has failed to demonstrate that police conduct resulted in an impermissibly suggestive identification. Appellant...