Commonwealth v. Wade

• Decision Date: 18 November 2011
• Citation: 33 A.3d 108,2011 PA Super 246
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jesse WADE, Appellant.Commonwealth of Pennsylvania, Appellee v. Jesse Wade, Appellant.
• Court: Pennsylvania Superior Court

2011 PA Super 246

33 A.3d 108

COMMONWEALTH of Pennsylvania, Appellee

v.Jesse WADE, Appellant.Commonwealth of Pennsylvania, Appellee

v.Jesse Wade, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 3, 2011.Filed Nov. 18, 2011.

Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney and Jonathan M. Levy, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, GANTMAN, and LAZARUS, JJ.

OPINION BY BOWES, J.:

Jesse Wade appeals from the judgment of sentence of ten to twenty years incarceration to be followed by two years probation imposed by the trial court after his convictions for robbery-threat of serious bodily injury, robbery of a motor vehicle, fleeing and eluding police, terroristic threats, and two counts each of possessing an instrument of crime (“PIC”) and recklessly endangering another person (“REAP”). We affirm.

The trial court set forth the pertinent facts as follows.

On September 13, 2008, at approximately 11:20 p.m., Christopher Kevorkian, the Complainant, exited his apartment with Greg Lewin, a friend, and Kevorkian's dog. They approached Kevorkian's vehicle, a red 1996 Oldsmobile, which was parked at the corner of Cresson Street and Indian Queen Lane. Kevorkian noticed that the driver's door key lock had been “punched out”, and he saw the Appellant sitting in the driver's seat. Kevorkian saw items from his glove compartment and armrest strewn about the interior of the car. Aided by street and house lights, Kevorkian clearly saw the Appellant's face. Standing between one and two feet from the driver's door, Kevorkian demand that Appellant get out of his car. In response, the Appellant opened the door and threatened to shoot Kevorkian, Lewin, and Kevorkian's dog if Kevorkian did not leave. Kevorkian then walked back to his apartment building while calling the police on his cell phone. Once inside the building, Kevorkian put his dog inside the apartment. Kevorkian returned outside one minute later, where he observed his car still parked at the same location. Shortly thereafter, the Appellant sped away in Kevorkian's car.

At approximately 11:30 p.m., Officer Brian Laureano arrived on the scene. Kevorkian gave Laureano a description of the Appellant and the vehicle. Kevorkian described the Appellant as a young (20–24 years old) African American male, approximately 5'–10?–5'–11?, thinly built, and wearing a white t-shirt and blue jeans. Laureano then relayed this information over police radio.

At 1:27 a.m. on September 14, 2008, Officer Brian Geer, driving south on Chew Avenue, saw the Appellant pull the red Oldsmobile in front of his vehicle. The Appellant then drove up onto a sidewalk, made a U-turn, and drove north on Chew Avenue. Officer Geer activated his siren and lights. Geer followed the Appellant for two blocks, observed him go through a red light, and pulled the car over. As Geer approached the vehicle, he ordered the Appellant to turn off the ignition. The Appellant, who had one hand underneath the ignition, told the officer through the open driver's door window that he could not turn off the vehicle. As Geer came closer, the Appellant sped away northbound on Chew Avenue.

Officer Geer pursued the Appellant while informing a police radio dispatcher that he needed assistance. When Geer reached Hortter Street, he saw a man standing on the corner near a damaged vehicle. Geer stopped his vehicle for three to five seconds to make sure the man was not injured. After the man conveyed that he was not injured, Geer resumed his pursuit. Meanwhile, Officer Lewis responded to Geer's assistance call by pursuing the Appellant eastbound on Pleasant Street. In order to say out of Officer Lewis's way, Geer stayed on Chew Avenue paralleling the chase.

Meanwhile, Officer Lydia Anabogu was parked at Chew Avenue and Pleasant Street when she heard Geer over the radio. Anticipating that the Appellant might drive in her direction, Officer Anabogu waited in her vehicle on Chew Avenue. She eventually saw the Appellant in her rearview mirror traveling southbound on Chew. As he approached Officer Anabogu, the Appellant suddenly swerved, struck Anabogu's vehicle, and caused damage to her driver's door and rear quarter panel. However[,] Anabogu was still able to pursue the Appellant. At trial, Anabogu identified the Appellant as the driver who rammed into her vehicle.

Immediately following the collision, Officer Geer saw the Appellant's and Officer Anabogu's vehicles pass in front of him at Chew Avenue and Vernon Street. Officer Geer saw the Appellant in the Oldsmobile's driver's seat and confirmed at trial that the Appellant was the same man he had initially pulled over for the traffic violation.

Farther up Chew Avenue, Officer Joseph Mason was sitting in his patrol car at the intersection of Chew Avenue and Johnson Street. Officer Mason turned his lights and siren on and blocked the traffic on Johnson Street in order to keep Chew Avenue clear of civilian traffic. Mason eventually saw the Appellant driving towards him on Chew Avenue. As the Appellant approached Mason, the two men made eye contact. The Appellant suddenly swerved toward Mason, crossed the southbound bicycle and parking lanes, drove into the intersection's crosswalk, and sideswiped Mason's car. After the Appellant struck Officer Mason's car, he veered back into the opposing traffic's southbound lane.

When the Appellant veered back into the southbound lane, a black Mercedes, with a civilian driver and passenger, was also traveling in the southbound lane (in the correct direction). In an attempt to avoid the Appellant, who was driving on the wrong side of the road, the driver of the Mercedes pulled into the northbound lane and stopped his vehicle partially in a parking space. After the Mercedes stopped, the Appellant then intentionally veered into the northbound lane and hit the Mercedes. After the collision, the Appellant's car ricocheted into a car parked on the southbound lane's shoulder. Both vehicle fronts were crumbled up to the windshield. Officer Geer removed the Appellant, who was unconscious, from the Oldsmobile and placed him under arrest.

The police transported the Appellant to Einstein Hospital. The police later told Kevorkian what had happened and drove him to the hospital to see if he could identify the person who stole his car. As the hospital staff wheeled the Appellant by on a stretcher, Kevorkian positively identified the Appellant as the person who stole his car. Kevorkian testified that he recognized Appellant immediately upon seeing his face again.

Trial Court Opinion, 10/27/10, at 3–6.

After his arrest, Appellant filed an omnibus pre-trial motion seeking to suppress the victim's out-of-court identification as unduly suggestive. The suppression court declined to suppress the identification holding that based on the totality of circumstances the victim's identification was reliable. Specifically, the suppression court reasoned that the victim had sufficient time to observe Appellant, that the area was well lit by house and street lights and the interior light of the vehicle illuminated when the victim confronted Appellant. Additionally, the court highlighted that the victim testified that he was especially observant at the time because Appellant threatened his life as well as that of his friend and dog. Also, the court noted that the victim provided an accurate description of Appellant to police and demonstrated no uncertainty when identifying Appellant at the hospital. Lastly, the court set forth that the identification occurred shortly after the crime.

Following the suppression ruling, Appellant proceeded to a jury trial. The jury returned not guilty verdicts on two aggravated assault counts related to his driving of the stolen vehicle into the police cruisers, but found Appellant guilty of the remaining charges.¹ Thereafter, the court sentenced Appellant to seven to fourteen years imprisonment for robbery-threat of serious bodily injury, followed by a consecutive sentence of two to four years incarceration for robbery of a motor vehicle, and an additional one to two year sentence for fleeing or attempting to elude an officer. Hence, Appellant's aggregate jail sentence was ten to twenty years. In addition, the court imposed a two year probationary sentence for the REAP charge. The court did not impose any further penalty on the remaining convictions.

After sentencing, Appellant filed a motion for reconsideration related to the two robbery sentences. Prior to the court rendering a decision on that motion, Appellant filed a timely appeal at the other case numbers pertaining to the remaining charges herein. The court directed Appellant to file and serve a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Appellant requested and received permission to file that statement after the court resolved his motion for reconsideration. The court denied Appellant's motion for reconsideration, Appellant appealed that decision, and filed his 1925(b) statement. The trial court authored a Pa.R.A.P. 1925(a) opinion. The matter is now ready for our review.

Appellant raises the following issues for our consideration.

1. Did not the lower court abuse its discretion, err as a matter of law and violate appellant's rights to due process under the Federal and state constitutions by denying his motion to suppress the complainant's tainted out-of-court and in-court identifications where the initial confrontation was brief and at night, the identification confrontation was badly flawed because, inter alia, the police told the complainant in the interim that they caught the perpetrator and he had to identify him; and there was no independent basis to allay the taint?

2. Did not the lower court err as a matter of law in assigning an offense gravity score of 4 for the conviction of possession of an instrument of crime, 18 Pa.C.S. § 907, where the...