J-S44027-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

ROBERT WILLIAM DIXON

                            Appellant                 No. 88 WDA 2014


           Appeal from the Judgment of Sentence December 9, 2013
                 In the Court of Common Pleas of Erie County
             Criminal Division at No(s): CP-25-CR-0000239-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY LAZARUS, J.:                         FILED AUGUST 22, 2014

        Robert William Dixon appeals from the judgment of sentence entered

in the Court of Common Pleas of Erie County following his conviction by a

jury for armed robbery,1 theft by unlawful taking,2 receiving stolen

property,3                                                            4
                                                                          After

review, we affirm.

        The trial court summarized the relevant factual background as follows:

        On October 25, 2012, at approximately 10:15 p.m., [Dixon] and
        an unknown female lured the victim, Jason Baney, to 818 East
____________________________________________


1
    18 Pa.C.S. § 3701(a).
2
    18 Pa.C.S. § 3921(a).
3
    18 Pa.C.S. §3925(a).
4
    18 Pa.C.S. § 907(b).
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      Avenue in the City of Erie. [Dixon] and/or the female placed a
      food delivery order from a cell phone with the Fortune Garden
      Chinese restaurant. When Baney, the delivery driver, arrived at
      the address given to the restaurant, he discovered the address
      of 818 East Avenue [did] not exist.

      Baney then called the contact cell phone number given to the
      restaurant. A . . . female answered the phone and waved Baney
      down as she was standing across the street between 819 and
      821 East Avenue. Baney drove his car to the other side of the
      street where the female was standing. The female asked the
      victim how much were the delivery charges. She indicated to
      Baney she needed to get change to pay for the order. She then
      motioned to [Dixon] who had been pacing behind her in the
      shadows.

      [Dixon] pulled out a black handgun, approached Baney, stuck

                                                              reviated).

      pocket.


      vehicle. Baney kept a spare cell phone solely to play music on.
      Baney kept his activated cell phone in his rig
      While Baney was retrieving the spare cell phone from his vehicle,
      [Dixon] kept the gun pointed at Baney through an open car

      the female fled the scene.

Trial Court Opinion, 3/11/14, at 1-2.

      Baney reported the incident to the police, and described his assailant



tall, wearing a puffy stocking cap from which cornrow braids protruded, a

dark hoodie and a                  Id. at 2. The police were able to trace the

mobile phone used to place the food order, and found that it belonged to a

Mr. Steele. After locating him, Steele told the police that someone named

                                                    blic bus. Steele also told


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the police that he believed Rob had recently been arrested.      Dixon had in

fact just been arrested for the armed robbery of a pizza delivery driver.



man who stole his mobile phone, the police suspected Dixon may have



along with those of seven other similar looking men. Baney identified Dixon

on the photo array as the person who robbed him.

        Dixon filed an omnibus pre-trial motion to suppress the photo array,

which the trial court denied.         On September 17, 2013, a jury convicted

Dixon of armed robbery, theft by unlawful taking, receiving stolen property,

and PIC. The convictions for theft by unlawful taking and receiving stolen

property merged with the armed robbery conviction for purposes of

sentencing. Because of his prior felony convictions, Dixon was subject to a

mandatory minimum sentence of ten to twenty years in prison for the armed

robbery.5    The trial court sentenced Dixon to the mandatory minimum for



court imposed these sentences consecutively to each other and to the

sentence Dixon was serving at the time of trial for convictions in Allegheny

County. This appeal followed.




____________________________________________


5
    42 Pa.C.S. § 9714(a).



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      Dixon raises three issues on appeal. He argues: (1) the photo array

used to identify him was too suggestive, such that the police lacked probable

cause to arrest him; (2) the verdict was against the weight of the evidence;

and (3) the sentence imposed was unreasonably harsh because the trial

court set his terms of incarceration to run consecutively.            Each of these

arguments is without merit.

      Dixon   first   argues   that   because   the   photo   array    was   unduly

suggestive, its use violated his right to due process, the police lacked

probable cause for his arrest, and therefore the trial court erred in denying

his motion to suppress. When reviewing a denial of a motion to suppress,

our



Commonwealth v. Gray, 896 A.2d 601, 603 (Pa. Super. 2006).                      We

employ the following standard when determining whether a photo lineup is

unduly suggestive:

      Whether an out of court identification is to be suppressed as
      unreliable, and therefore violative of due process, is determined
      from the totality of the circumstances. Suggestiveness in the
      identification process is a factor to be considered in determining
      the admissibility of such evidence, but suggestiveness alone
      does not warrant exclusion. Identification evidence will not be
      suppressed unless the facts demonstrate that the identification
      procedure was so impermissibly suggestive as to give rise to a
      very substantial likelihood of irreparable misidentification.
      Photographs used in line-ups are not unduly suggestive if the

      the people depicted all exhibit similar facial characteristics.




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Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011)

(quotation marks and citations omitted).

       In Commonwealth v. Fisher, 769 A.2d 1116 (Pa. 2001), the

appellant argued that the photo array was unduly

witnesses described the suspect as a light-skinned African-American male

with freckles and a goatee, while only six of the eight pictures in the line-up

showed men with goatees, and only one, the picture of [the] [a]ppellant,

showe                                Id. at 1126. Despite the fact that all of the

men in the photographs did not have goatees or freckles, this Court held

that the photographs were substantially similar, such that the trial court did

not abuse its discretion in admitting them. Id. at 1127.

       Here, Dixon has pointed out that his photograph was not identical to

the others used in the array, but has failed to demonstrate how it was

unduly suggestive.6 The fact that his haircut was not identical to those of

the men in the other photographs is insufficient to make the array overly

suggestive. See id.

was compromised because the photograph of Dixon was taken more than

one month after the robbery. Roughly six weeks passed between the crime




____________________________________________


6
  We have reviewed the photographic array, and conclude that nothing about
it is unduly suggestive such that the trial court abused its discretion in
                     n to suppress.



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in any appreciable way during that time so as to render the photo array



claims, we

motion to suppress and that there was no legal error. See Gray, 896 A.2d

at 603.

     Next, Dixon challenges the weight of the evidence. Pennsylvania Rule

of Civil Procedure 607 mandates, in pertinent part:

     (A) A claim that the verdict was against the weight of the
     evidence shall be raised with the trial judge in a motion for a
     new trial:
     (1) orally, on the record, at any time before sentencing;
     (2) by written motion at any time before sentencing; or
     (3) in a post-sentence motion.

Pa.R.Crim.P. 607(a).

     A failure to raise a weight of the evidence claim with the trial judge at

one of the enumerated junctures constitutes waiver of that claim.        See

Commonwealth v. Widmer, 689 A.2d 211, 212 (Pa. 1997).               A careful

review of the record reveals that Dixon did not raise his weight of the

evidence claim until after he filed his notice of appeal, in his concise

statement of matters complained of pursuant to Pa.R.A.P. 1925(b).

Accordingly, Dixon has waived this issue.

     Finally, Dixon argues that we must vacate his sentence and remand

for resentencing because his sentence was extreme and unreasonable,

particularly because the trial court imposed consecutive, rather than

concurrent terms.      Dixon argues that his consecutive sentence was


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argues that the application of the second strike mandatory minimum was

improper, because he did not have sufficient time for rehabilitation between

his crimes.

      When an appellant challenges the discretionary aspects of a sentence,

an appeal is not guaranteed as of right.    Commonwealth v. Moore, 617

A.2d 8, 11 (Pa. Super. 1992).     An appellant challenging the discretionary

aspects of his sentence must invoke this Court's jurisdiction by satisfying a

four-part test: (1) whether appellant has filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence, see

Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P.

2119(f); and (4) whether there is a substantial question that the sentence

appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S. §

9781(b). Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).



only where an aggrieved party can articulate clear reasons why the sentence

imposed by the trial court compromises the sentencing scheme as a whole.

Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (Pa. 1987).

      Our standard of review when a defendant challenges the discretionary

aspects of his sentence is very narrow; we will reverse only where an

appellant has demonstrated a manifest abuse of discretion by the sentencing

judge. Commonwealth v. Hammanson, 674 A.2d 281, 283 (Pa. Super.

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consecutive sentences within the guideline ranges if the case involves

circumstances where the application of the guidelines would be clearly

unreasonable, resulting in an excessive sentence; however, a bald claim of

excessiveness due to the consecutive nature of a sentence will not raise a

                        Commonwealth v. Dodge, 77 A.2d 1263, 1270 (Pa.

Super. 2013).     Further, this Court is not in the business of ensuring



crimes.   Commonwealth v. Johnson, 961 A.2d 877, 880 (Pa. Super.

2008).

       In Dodge, this Court held that the appellant raised a substantial



non-

position. 77 A.2d at 1271. In contrast, this Court in Johnson held that the

appellant did not raise a substantial question where he argued consecutive

sentences were excessive, and could only elaborate on that assertion by

alleging the trial court abused its discretion in failing to consider certain

mitigating factors. 961 A.2d at 880.



without further elaboration, is insufficient to raise a substantial question for

our review.   See id.   In fact, a simple reading of the sentencing hearing

transcr

circumstances quite extensively before imposing sentence, and crafted his

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sentence accordingly.     N.T. Sentencing Hearing, 11/26/13, at 17-21.

                                                   r rehabilitation is equally

meritless.   When Dixon robbed Baney, he was a fugitive from supervision

resulting from his previous convictions. Trial Court Opinion, 3/11/14, at 13.



rehabilitation, when he committed this crime when he was a fugitive from a

rehabilitative program.      Accordingly, Dixon has raised no substantial

question worthy of review.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




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