J. S53033/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :    IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                     v.                     :
                                            :
VICTOR DICKERSON,                           :          No. 734 EDA 2016
                                            :
                          Appellant         :


          Appeal from the Judgment of Sentence, November 19, 2015,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0012554-2014


BEFORE: BENDER, P.J.E., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED JUNE 06, 2018

        Victor Dickerson appeals from the November 19, 2015 aggregate

judgment of sentence of 2½ to 5 years’ imprisonment, to be followed by

36 months’ probation, imposed after the trial court found him guilty of

receiving stolen property and unauthorized use of an automobile.1          After

careful review, we affirm the judgment of sentence.

        The trial court summarized the relevant facts of this case as follows:

                    Ms. Pamela Hill testified that on September 14,
              201[4] at approximately 12:00 p.m., she observed a
              white Subaru crash into a utility pole in the area of
              200 E. Johnson Street, Philadelphia, Pennsylvania.
              The vehicle was driven by [appellant] at the time of
              the crash. Ms. Hill initially stated that she pulled into
              a parking lot in a vehicle to take out packages.
              Shortly thereafter she observed the vehicle drive
              down the street and crash into the pole. Ms. Hill

1   18 Pa.C.S.A. §§ 3925(a) and 3928(a), respectively.
J. S53033/17


          testified that she ran to the end of the parking lot
          and saw [appellant] exit the vehicle shortly after he
          crashed. Ms. Hill observed [appellant] retrieve an
          object from the passenger’s seat of the vehicle.
          Ms. Hill then observed [appellant] lift the driver’s
          seat of the vehicle up and retrieve a duffle bag.
          [Appellant] retrieved four bags in total from the
          vehicle: “a green bag, two black bags out of the
          passenger’s seat and one out of the trunk.” Ms. Hill
          then called 911 to inform the authorities of
          [appellant]’s actions. [Appellant] then walked up the
          opposite side of the street and passed by Ms. Hill,
          proceeding to turn left down Ross Street.
          Thereafter, Ms. Hill observed a young woman exit
          her home on E. Johnson Street and enter
          [appellant]’s vehicle to retrieve paperwork from the
          glove compartment.

                Ms. Hill testified that [appellant] returned not
          long after from Ross Street to the scene of the crash.
          The young woman who entered the vehicle to
          retrieve paperwork exited the vehicle as [appellant]
          returned to the scene. [Appellant] reentered the
          vehicle to retrieve a cell phone and then walked back
          down Ross Street. Ms. Hill explained that [appellant]
          did not have any of the bags he originally retrieved
          from the vehicle on his person when he returned to
          the scene of the accident. Ms. Hill provided that she
          was approximately fifteen (15) feet away from
          [appellant] when she initially observed him exit the
          crashed vehicle. When he walked by her on the
          street, she then observed him from an even closer
          distance.

                 After [appellant] fled the scene of the incident
          for a second time, a police officer came up and
          briefly spoke to Ms. Hill. The police officer explained
          that Ms. Hill’s presence was required to identify an
          individual believed to be [appellant]. Thereafter, two
          police officers returned to the scene with [appellant]
          for identification. Ms. Hill observed [appellant] exit
          the police officers’ vehicle wearing a different set of
          clothes from during [sic] the time of the accident.
          Ms. Hill proceeded to make a positive identification of


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          [appellant] despite his changed clothes. Ms. Hill
          testified that she based her identification on
          [appellant]’s face.

                  Ms. Hill further testified that she was a
          passenger in a vehicle when she travelled to the area
          of 200 E. Johnson Street on September 14, 201[4],
          where she observed [appellant]. After [appellant]
          crashed into the pole, Ms. Hill described the vehicle
          as tipped sideways on the street. Ms. Hill explained
          that [appellant]’s back was facing her when he
          initially exited the vehicle from the driver’s side.
          [Appellant] exited the vehicle with several bags in
          his possession and then walked in her direction on
          the opposite side of the street. Ms. Hill stated that
          the car accident occurred on the opposite side of the
          street from where she was originally located. There
          were no other vehicles between Ms. Hill and
          [appellant] when he crashed and initially exited the
          vehicle, providing her with an unobstructed view.

                Ms. Hill specified that she was initially located
          behind a tree in the parking lot when the car driven
          by [appellant] crashed into the pole.        After the
          accident, she walked out of the parking lot to
          approach the scene and see if [appellant] was safe.
          Ms. Hill then observed [appellant] retrieve several
          bags and exit the vehicle. Ms. Hill explained that
          while she is far-sighted, she was wearing her
          corrective lenses on the date in question.         She
          immediately thereafter called the police and gave a
          description of an individual wearing a white t-shirt,
          blue jeans, a jacket, and white sneakers. Ms. Hill
          acknowledged that she did not include height,
          weight, or whether the individual had facial hair or
          glasses in her description to the police over the
          phone.

               Ms. Hill testified that [appellant] was still
          wearing a white t-shirt, blue jeans, a jacket, and
          white sneakers when he returned to the vehicle
          approximately five minutes after the initial crash.
          She also heard [appellant] say to a young lady at the
          scene that he was retrieving a cell phone. Ms. Hill


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           stated that [appellant] then fled for a second time
           toward Ross Street and passed by her again as she
           awaited the arrival of police. A police officer then
           arrived at the scene and asked Ms. Hill if she could
           identify [appellant]. Thereafter, a marked police
           sports utility vehicle (SUV) drove up to the scene
           with two police officers in the front of the vehicle and
           [appellant] in the back seat. Ms. Hill testified that
           the two police officers then escorted [appellant] in
           handcuffs out of the police SUV for identification. At
           that time she was roughly thirty (30) to forty (40)
           feet away from [appellant]. Ms. Hill stated that
           [appellant] was now wearing a green t-shirt when he
           exited the police SUV instead of the white t-shirt
           from earlier.

                  Philadelphia Police Officer Dora Crenshaw
           testified that she was on duty on September 14,
           2014 at approximately 12:40 p.m. when she
           received a radio call regarding an automobile
           accident on the 200 block of E. Johnson Street,
           Philadelphia.     Officer Crenshaw received flash
           information describing [appellant] as a black male
           wearing a white t-shirt, blue jeans, and a white hat.
           The flash informed Officer Crenshaw that [appellant]
           had fled the scene with several bags in his
           possession.[2] Officer Crenshaw observed a male
           matching the description of [appellant] on the
           800 block of E. Washington Lane and proceeded to
           stop him. Officer Crenshaw approached and asked
           him for “his name and everything, where he was
           coming from.”         [Appellant] failed to initially
           acknowledge Officer Crenshaw’s questions which led
           her to call for back-up. Officer Crenshaw testified
           that as her back-up arrived and apprehended
           [appellant] on the 800 block of E. Washington Lane,
           she then went to the scene of the crash. At the
           scene she observed that a white Subaru had crashed

2 On cross-examination, Officer Crenshaw clarified that the radio flash was
for a black male with a white t-shirt and blue jeans heading in a southerly
direction. (Notes of testimony, 7/8/15 at 30-31; Defense Exhibit D-3.) The
additional information that he was wearing a white hat and carrying bags
was obtained from Hill at the scene, after appellant had been stopped. (Id.)


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          against a utility pole. As Officer Crenshaw looked
          inside the vehicle and located registration and
          insurance paperwork on the driver’s seat, Ms. Hill
          approached Officer Crenshaw and stated that she
          was the eyewitness that had called the authorities.
          Officer Crenshaw asked Ms. Hill to describe
          [appellant] to her. Ms. Hill described [appellant] as
          wearing a white bucket hat. Recognizing that the
          individual she had stopped moments earlier was
          wearing a white bucket hat, Officer Crenshaw
          proceeded to radio her back-up to bring [appellant]
          to her location in order to obtain a positive
          identification from Ms. Hill.

                 Officer Crenshaw testified that only a few
          minutes passed between the time she initially
          received the radio call of the accident to when she
          directly observed [appellant] on the 800 block of
          E. Washington Lane. She stated that this location
          was approximately half a mile to a mile away from
          the scene of the crash.        On cross-examination,
          Officer Crenshaw further testified that she was in a
          marked police vehicle on the day of the accident,
          alone on patrol, and learned of the auto accident at
          200 E. Johnson Street through the flash.
          Officer Crenshaw initially testified that the flash
          described a black male wearing a white hat, white
          t-shirt, and blue jeans, as well as carrying bags and
          fleeing westbound on E. Johnson Street towards
          Magnolia Street. However, the flash from the radio
          call for the accident actually stated that the black
          male was fleeing south from the scene of the crash.
          Officer Crenshaw conceded that the information she
          included in her initial testimony was not identical to
          the description given in the radio call containing the
          flash.

                On redirect, Officer Crenshaw also clarified that
          the flash did not contain any information pertaining
          to [appellant] wearing a hat or having bags in his
          possession. However, Officer Crenshaw explained
          that she later obtained information pertaining to
          [appellant]’s hat and bags from Ms. Hill at the scene
          of the crash. Officer Crenshaw ultimately discovered


                                   -5-
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          [appellant] northeast of the scene of the crash. She
          explained that the initial radio call she received was
          mistaken in regards to the direction that [appellant]
          had fled. Officer Crenshaw explained that the flash
          stated [appellant] was heading west due to the fact
          [appellant] “ran from the vehicle and went west on
          Johnson from the vehicle.”        Upon apprehending
          [appellant], she described him as wearing a tan
          shirt, a black jacket, a black long sleeve shirt, and
          blue jeans.

                Officer Crenshaw testified that a 75-229 was
          completed for this case. On the 229 there was no
          mention of a hat on [appellant]’s person nor any
          bags in his possession. Officer Crenshaw did not
          complete a property receipt for either the hat or any
          of the bags. Officer Crenshaw explained that she
          only created a property receipt for the vehicle
          involved in the accident. She stated that the police
          paperwork noted [appellant]’s facial hair, height of
          five (5) feet eleven (11) inches, weight of
          one-hundred and fifty-five (155) pounds, and
          medium complexion.

                 Officer Crenshaw commanded [appellant] to
          stop and asked for his name when she first
          encountered him. Officer Crenshaw testified that she
          frisked [appellant] for her safety but did not find
          anything on his person. She then observed two bags
          in his possession and conducted a search of the bags
          before she reported to the scene of the accident.
          She discovered another bag inside [appellant]’s
          green duffel bag. Overall, [appellant] solely had
          clothing and beer in the bags. Officer Crenshaw also
          testified that she was not informed by Ms. Hill
          whether or not [appellant] was intoxicated.
          Officer Crenshaw testified that she made no notes on
          [appellant] being intoxicated and did not arrest him
          for Driving Under the Influence. [Appellant] was in
          the backseat of the police SUV and in handcuffs
          when he was taken to scene of the accident and
          taken out of the vehicle for identification.




                                  -6-
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                  When      questioned   about    Commonwealth
           Exhibit 1 (C-1), the 75-48, Officer Crenshaw
           confirmed that she completed the Philadelphia
           non-reportable accident report for the accident in
           question.    She stated that it contained the VIN
           number for the vehicle that was involved in the
           accident. On cross-examination, Officer Crenshaw
           testified that there were no signs of forced entry into
           the vehicle, damage to the steering column, or
           damage to the VIN when she approached and
           examined the vehicle on the day of the incident.
           [Appellant] did not attempt to flee or resist arrest.
           Officer Crenshaw stated that [appellant] was solely
           arrested for the circumstances surrounding the
           automobile accident, not for any other warrants or
           causes.

                 A stipulation was entered by and between
           counsel that if called to testify, Ms. Barbara
           Baumbach, the owner of a white 2004 Subaru
           Forester with VIN ending in 473668, would state that
           she last saw her vehicle on September 2, 2014 when
           she left to go on vacation. Further, upon her return
           from vacation on September 10, 2014, the vehicle
           was gone and Mrs. Baumbach reported it stolen.
           Pursuant to this stipulation, a vehicle theft report
           containing a full VIN number and the vehicle owner’s
           signature was marked and moved into evidence as
           Commonwealth Exhibit 2 (C-2).          The Defense
           marked and moved Defense Exhibits D-1 through
           D-5, referring to the Motion to Suppress, into the
           record.

Trial court opinion, 10/6/16 at 2-9 (citations to notes of testimony and

footnote omitted).

     On September 14, 2014, appellant was arrested and charged with,

inter alia, receiving stolen property and unauthorized use of an automobile

in connection with this incident. On December 19, 2014, appellant filed an

omnibus pre-trial motion to suppress all physical evidence obtained from


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the stop of his person, as well as Hill’s out-of-court identification.          (See

“Omnibus Pre-Trial Motion to Suppress Evidence,” 12/19/14 at 1-2.)

Appellant    filed   a   second   omnibus     pre-trial    suppression   motion   on

February 2, 2015.        Following a hearing, the trial court denied appellant’s

suppression motions on July 8, 2015. Appellant waived his right to a jury

and proceeded to a bench trial that same day.             Following the waiver trial,

appellant was found guilty of one count each of receiving stolen property

and unauthorized use of a motor vehicle.3                 As noted, the trial court

sentenced appellant to an aggregate term of 2½ to 5 years’ imprisonment,

to    be   followed by 36      months’ probation,     on     November    19, 2015.

Subsequently, on February 23, 2016, appellant’s direct appeal rights were

reinstated nunc pro tunc, and appellant filed a timely notice of appeal on

March 3, 2016.4

        On appeal, appellant raises the following issues for our review:

              1.     Was not the evidence insufficient to prove
                     appellant guilty of receiving stolen property or
                     unauthorized use of an automobile where the
                     Commonwealth did not prove beyond a
                     reasonable doubt that appellant was the
                     perpetrator as the sole evidence was that
                     appellant possessed a vehicle that had been

3 The record reflects that appellant was also found guilty of one count of
accidents involving damage to attended vehicle or property, 75 Pa.C.S.A.
§ 3743(a); however, the trial court granted appellant’s oral motion for
extraordinary relief in the nature of a motion for judgment of acquittal as to
that charge. (See motion for extraordinary relief, 11/16/15, certified record
at no. 81; trial court order, 11/19/15, certified record at no. 84.)

4   Appellant and the trial court have complied with Pa.R.A.P. 1925.


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                   stolen two weeks earlier, there were no signs
                   of forced entry or other indicia of a stolen car,
                   the car was operated with keys, and appellant
                   was cooperative with police?

            2.     Did not the trial court err in denying
                   appellant’s motion to suppress the out-of-court
                   identification evidence and physical evidence
                   as direct fruits of a seizure of appellant made
                   without reasonable suspicion or probable
                   cause?

            3.     Did not the trial court err in denying
                   appellant’s motion to suppress out-of-court
                   and in-court identification evidence, where the
                   circumstances of the out-of-court identification
                   by the complainant were unduly suggestive,
                   the identification itself was unreliable and
                   where the Commonwealth did not prove by
                   clear and convincing evidence that the in-court
                   identification had an independent basis
                   sufficient to purge the taint of the out-of-court
                   identification?

Appellant’s brief at 4.

      Appellant first argues that there was insufficient evidence to sustain

his convictions for receiving stolen property and unauthorized use of an

automobile. (Id. at 13.) We disagree.

            Whether the evidence was sufficient to support the
            conviction presents a matter of law; our standard of
            review is de novo and our scope of review is
            plenary. In conducting our inquiry, we

                   examine whether the evidence admitted
                   at trial, and all reasonable inferences
                   drawn therefrom, viewed in the light
                   most favorable to the Commonwealth as
                   verdict winner, support the jury’s finding
                   of all the elements of the offense beyond
                   a reasonable doubt. The Commonwealth


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                  may sustain its burden by means of
                  wholly circumstantial evidence.

Commonwealth v. Biesecker, 161 A.3d 321, 326 (Pa.Super. 2017)

(internal citations omitted).

      A person will be found guilty of the crime of receiving stolen property

“if he intentionally receives, retains, or disposes of movable property of

another knowing that it has been stolen, or believing that it has probably

been stolen, unless the property is received, retained, or disposed with

intent to restore it to the owner.” 18 Pa.C.S.A. § 3925(a). For purposes of

this section, “receiving” is defined as “acquiring possession, control or title,

or lending on the security of the property.”        Id. at § 3925(b).       The

Commonwealth may sustain its burden of proof under Section 3925 by

means of circumstantial evidence. See Commonwealth v. Robinson, 128

A.3d 261, 265 (Pa.Super. 2015) (finding that the guilty knowledge required

to convict a defendant of receiving stolen property, like all culpable mental

states, may be inferred from circumstantial evidence).

      The crime of unauthorized use of a motor vehicle is defined as follows:

            (a)   Offense defined.--A person is guilty of a
                  misdemeanor of the second degree if he
                  operates the automobile, airplane, motorcycle,
                  motorboat, or other motor-propelled vehicle of
                  another without consent of the owner.

18 Pa.C.S.A. § 3928(a).

            [A] conviction for unauthorized use of a vehicle must
            be predicated on proof that the defendant operated
            the vehicle without the owner’s consent and that the


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            defendant knew or had reason to know that he
            lacked the owner’s permission to operate the vehicle.

Commonwealth v. Carson, 592 A.2d 1318, 1321 (Pa.Super. 1991)

(citations omitted), appeal denied, 600 A.2d 533 (Pa. 1991)

       Instantly, appellant contends that the Commonwealth failed to prove

he was the driver of the vehicle in question.           (Appellant’s brief at 14.)

Appellant also argues that there were no physical manifestations of theft,

e.g., a broken steering column or obliterated VIN number, and that there

was no evidence of consciousness of guilt. (Id. at 15-17.) Appellant further

maintains that he cooperated with police and did not attempt to flee. (Id. at

17.)

       Viewing   the   evidence   in    the     light   most     favorable   to   the

Commonwealth, the verdict winner, we find that there was ample evidence

for the trial court to conclude that appellant was guilty of receiving stolen

property and unauthorized use of an automobile.                As noted above, Hill

identified appellant as the driver of the stolen vehicle. While there were no

signs of forced entry into the vehicle or damage to the steering column,

appellant’s behavior was indicative of a guilty conscience. Appellant left the

keys, registration, and insurance paperwork inside the crashed vehicle,

retrieved his bags, and left the scene. (Notes of testimony, 7/8/15 at 25,

52.)   A short time later, appellant returned to the vehicle to get his cell

phone. (Id. at 9.) Officer Crenshaw located appellant across from a train

station, and when confronted, appellant initially failed to acknowledge


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Officer Crenshaw’s questions.     (Id. at 24-25, 36.)         In addition, there was

sufficient   circumstantial   evidence     that   appellant   changed   his   clothes

immediately after the crash.      The driver was described as a black male

wearing a white t-shirt, blue jeans, and a white hat, and carrying bags. (Id.

at 24.) When Officer Crenshaw encountered appellant, he was wearing a tan

shirt, a black long-sleeved shirt, and a black jacket. (Id. at 33.) The trial

court, sitting as fact-finder, made the reasonable inference that appellant

abandoned the vehicle, retrieved all of his belongings, and changed his

clothes in an attempt to conceal his identity. (Id. at 60-63.) Based on the

foregoing, we discern no abuse of discretion in reaching these conclusions.

Accordingly, appellant’s claim that there was insufficient evidence to sustain

his convictions must fail.

      Appellant next argues that the trial court abused its discretion in

denying his motion to suppress both the physical evidence obtained from

Officer Crenshaw’s stop of his person, as well as Hill’s subsequent

out-of-court identification. (Appellant’s brief at 17.)

      Our standard of review when addressing a challenge to a trial court’s

denial of a suppression motion is well settled.

             [An appellate court’s] standard of review in
             addressing a challenge to the denial of a suppression
             motion is 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


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            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.

Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation

omitted; brackets in original), appeal denied, 135 A.3d 584 (Pa. 2016).

      It is well settled that “[t]he Fourth Amendment to the [United States]

Constitution and Article I, Section 8 of [the Pennsylvania] Constitution

protect    citizens   from     unreasonable     searches     and      seizures.”

Commonwealth v. McAdoo, 46 A.3d 781, 784 (Pa.Super. 2012), appeal

denied, 65 A.3d 413 (Pa. 2013). “To secure the right of citizens to be free

from such intrusions, courts in Pennsylvania require law enforcement officers

to demonstrate ascending levels of suspicion to justify their interactions with

citizens to the extent those interactions compromise individual liberty.”

Commonwealth v. Reppert, 814 A.2d 1196, 1201 (Pa.Super. 2002)

(citation omitted).   Courts in this Commonwealth have recognized three

types of interactions between members of the public and the police: a mere

encounter, an investigative detention, and a custodial detention.

            A mere encounter between police and a citizen need
            not be supported by any level of suspicion, and
            carr[ies] no official compulsion on the part of the
            citizen to stop or to respond. An investigatory stop,
            which subjects a suspect to a stop and a period of
            detention, but does not involve such coercive
            conditions as to constitute an arrest, requires a
            reasonable suspicion that criminal activity is afoot. A


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            custodial search is an arrest and must be supported
            by probable cause.

Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa.Super. 2007) (citations

and internal quotation marks omitted).

      In evaluating whether an interaction rises to the level of an

investigative detention, “the court must examine all the circumstances and

determine whether police action would have made a reasonable person

believe he was not free to go and was subject to the officer’s orders.”

Commonwealth v. Stevenson, 832 A.2d 1123, 1127 (Pa.Super. 2003)

(citation omitted).   Courts in this Commonwealth have mandated that law

enforcement officers, prior to subjecting a citizen to an investigatory

detention, “must harbor at least a reasonable suspicion that the person

seized is then engaged in unlawful activity.”   Commonwealth v. Barber,

889 A.2d 587, 593 (Pa.Super. 2005) (citation omitted).           “Reasonable

suspicion is a less stringent standard than probable cause necessary to

effectuate a warrantless arrest, and depends on the information possessed

by police and its degree of reliability in the totality of the circumstances.”

Commonwealth v. Brown, 996 A.2d 473, 477 (Pa. 2010).             An appellate

court must give weight “to the specific, reasonable inferences drawn from

the facts in light of the officer’s experience and acknowledge that innocent

facts, when considered collectively, may permit the investigative detention.”

Id. (citation omitted).    Police officers, however, “need not personally

observe the illegal or suspicious conduct, but may rely upon the information


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of third parties, including tips from citizens.”   Commonwealth v. Smith,

904 A.2d 30, 36 (Pa.Super. 2006) (citation and internal quotation marks

omitted).

      We are mindful of the fact that,

            the totality of the circumstances test does not limit
            our inquiry to an examination of only those facts that
            clearly indicate criminal conduct. Rather, even a
            combination of innocent facts, when taken together,
            may warrant further investigation by the police
            officer.

Commonwealth v. Hughes, 908 A.2d 924, 927 (Pa.Super. 2006) (citations

and internal quotations omitted).

      Instantly, appellant contends that Officer Crenshaw lacked reasonable

suspicion to stop him on the day in question. (Appellant’s brief at 17.) In

support of this contention, appellant avers that when he was stopped, he

was not engaged in any suspicious activity and was wearing different

clothing than the individual described in the radio flash.       (Id. at 19.)

Appellant further contends that if the detention was unlawful, then all

physical evidence as well as Hill’s out-of-court identification must be

suppressed as fruit of the poisonous tree.5 (Id. at 21-22.)

      Preliminarily, we agree with appellant that Officer Crenshaw lacked the

requisite reasonable suspicion of criminal activity to justify an investigative


5We note that, “[t]he ‘fruit of the poisonous tree’ doctrine excludes evidence
obtained from, or acquired as a consequence of, lawless official acts.”
Commonwealth v. Johnson, 68 A.3d 930, 946 (Pa.Super. 2013) (citations
omitted).


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stop or detention. Specifically, the record reveals that on the afternoon of

September 14, 2014, Officer Crenshaw responded to a radio call of an auto

accident on the 200 block of East Johnson Street.         (Notes of testimony,

7/8/15 at 23-24.) Officer Crenshaw testified that the radio flash in question

described a black male heading southbound carrying three bags and wearing

a white t-shirt, blue jeans, and white hat.         (Id. at 24, 31.)     Shortly

thereafter, Officer Crenshaw encountered appellant approximately one-half

mile to one mile from the accident scene, stopped him, and seized the bags

he was carrying.    (Id. at 24, 26, 37.)      Despite Officer Crenshaw’s initial

testimony to the contrary, however, at no point did the radio flash indicate

that the individual who fled the scene was carrying any bags. (Id. at 24,

31.)    Officer Crenshaw acknowledged on cross-examination that the

additional information that appellant was wearing a white hat and carrying

bags was obtained from Hill at the scene of the accident, after appellant had

already been stopped and refused to answer her questions. (Id. at 24-25,

29-31.) Moreover, the record reflects that appellant was stopped north of

the accident scene, not south, and was wearing a tan shirt, a long-sleeved

black shirt, and a black jacket. (Id. at 30-31.)

       Despite our agreement with appellant that Officer Crenshaw lacked

reasonable suspicion to detain him, we do not find that the physical evidence

and Hill’s subsequent out-of-court identification is suppressible as fruit of the

poisonous tree.    In reaching this conclusion, we acknowledge our recent



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decision in Commonwealth v. Santiago, 160 A.3d 814 (Pa.Super. 2017),

appeal granted in part, 179 A.3d 455 (Pa. 2018). Santiago, however, is

distinguishable      from   the   instant     matter.        Santiago      involved   a

Commonwealth appeal from an order granting a defendant’s motion to

suppress the in-court and out-of-court identification testimony of a police

officer who, in violation of the Fourth Amendment, conducted a warrantless

search of defendant’s cell phone.           Id. at 816.      Later, the police officer

ascertained appellant’s identity based upon information he learned during

the illegal search of the cellular telephone. Id.

      Under that factual scenario, the Santiago court affirmed the order of

the trial court, in part, concluding that the officer’s out-of-court identification

of defendant was fruit of the poisonous tree, and thus, inadmissible, due to

the fact that the officer conducted a warrantless search of defendant’s cell

phone in order to ascertain his identity.          Id. at 827-828.       The Santiago

court did so, however, only because the person who made the out-of-court

identification was the police officer who conducted the illegal search. See

id. at 828. The Santiago court recognized that previous decisions by this

court and our supreme court have held that out-of-court identifications by

individuals that are not making the unconstitutional search or seizure cannot

be suppressed as fruit of the poisonous tree.           See id.     On the contrary,

courts   in   this    Commonwealth          have    always     allowed     out-of-court




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identifications that are only tangentially connected with unlawful searches

and seizures; particularly, out-of-court identifications made by third parties.

      The facts of the instant matter are more closely aligned to that of

Commonwealth v. Garvin, 293 A.2d 33 (Pa. 1972).6 Garvin involved a

police officer who illegally stopped a defendant and then transported him to

the scene of the robbery, where the victim identified him. Id. at 35. The

defendant moved to suppress the out-of-court identification as fruit of the

poisonous tree, and our supreme court rejected this argument. Id. at 37-

38.   The Garvin court held that the unlawful arrest “merely provided the




6  We recognize that on January 22, 2018, our supreme court granted
allowance of appeal, in part, in Santiago to determine the following issue as
stated by the petitioner in Santiago:

            Is not the Superior Court's published opinion
            applying the fruit of the poisonous tree doctrine to
            in-court identification testimony inconsistent with
            controlling Fourth Amendment United States
            Supreme Court precedent and Article I, § 8, and
            does not its reliance on overly broad language in
            Commonwealth v. Garvin, 448 Pa. 258, 293 A.2d
            33 (Pa. 1972), necessitate this Court's guidance and
            explicit rejection of Garvin and its progeny?

Santiago, 179 A.3d 455.

       Until our supreme court determines that our application of the fruit of
the poisonous tree doctrine with respect to in-court identification testimony
as set forth in Santiago is inconsistent with the United States and
Pennsylvania constitutions, it remains the law of this Commonwealth. See
Commonwealth v. Forbes, 867 A.2d 1268, 1279 (Pa.Super. 2005)
(reiterating that “[i]t is well settled . . . that until the Supreme Court
overrules a decision of this Court, our decision is the law of this
Commonwealth” (citation omitted)).


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means for the confrontation with [the victim] more promptly than would

otherwise have been the case.” Id. at 38.

      Likewise, in the case sub judice, Officer Crenshaw detained appellant

without reasonable suspicion and then transported him to the scene of the

accident, where Hill identified him as the individual who fled the scene.

Thus, the illegal detention merely hastened Hill’s identification of appellant.

A hastened identification does not connect unlawful police activity to

ordinary eyewitness observations, much less subject eyewitness testimony

to suppression as fruit of the poisonous tree.

      As a panel of this court noted in Santiago, we have consistently

applied Garvin’s holding in similar cases. For example, in Commonwealth

v. Howard, 659 A.2d 1018 (Pa.Super. 1995), this court addressed a

scenario where a defendant was illegally detained and fingerprinted, and as

a result of this illegal detention, the police were able to learn his true

identity and showed his picture to the victim. Id. at 1020-1021. The victim

positively identified the defendant as the perpetrator, and the defendant

moved to suppress this out-of-court identification as fruit of the poisonous

tree. Id. at 1021-1022. The Howard court concluded that, “no law abiding

society could tolerate a presumption that but for the illegal arrest the

suspect would never have been required to face his [or her] accusers.” Id.

at 1022 (citations omitted).    As in Garvin, the individual who made the

out-of-court identification was not responsible for the illegal detention.



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Accordingly, the Howard court held that the trial court properly denied the

defendant’s suppression motion. Id. at 1023.

       Here, it is apparent that Garvin and Howard, rather than Santiago,

control in this matter. Hill witnessed the accident and ensuing events before

Officer Crenshaw detained appellant at least one-half mile away from where

the stop occurred.          Hill was not involved with appellant’s detention in any

way,   had     no    prior    communication       with   Officer   Crenshaw,     and   her

observations arose independently from Officer Crenshaw’s police activity.

Eventually, appellant would have confronted Hill as the witness to the events

in question.      Based on the foregoing, we find that the trial court did not

abuse its discretion in denying appellant’s motion to suppress the physical

evidence and Hill’s out-of-court identification as fruit of the poisonous tree.

       In   his     final    claim,   appellant     contends     that   the   out-of-court

identification      procedure     was    unduly     suggestive     because    the   police

transported him to the accident scene in handcuffs in the back of a police

SUV.    (Appellant’s brief at 23-24.)             According to appellant, the police

informed Hill that they had someone in custody and asked her to identify

him.   (Id.)      Appellant also argues that the out-of-court identification was

unreliable given discrepancies in the description of the perpetrator and Hill’s

distance from appellant at the time of her identification. (Id. at 24-25.) For

the following reasons, we disagree.

               As both the Pennsylvania Supreme Court and this
               Court have recognized, the suggestiveness of police


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            tactics in the identification process is one factor to
            consider     in   determining    whether     to  admit
            identification evidence, but suggestiveness alone will
            not necessarily cause the evidence to be excluded.
            Instead [i]t is the likelihood of misidentification
            which violates a defendant’s right to due process,
            and it is this which [is] the basis of the exclusion of
            evidence. The United States Supreme Court has
            stated that a pre-trial identification will not be
            suppressed unless it can be shown that the
            identification procedure was so impermissibly
            suggestive as to give rise to a very substantial
            likelihood of irreparable misidentification.

Commonwealth v. Vanderlin, 580 A.2d 820, 824 (Pa.Super. 1990)

(citations and internal quotation marks omitted).      “[T]he reliability of an

identification is the linch pin [sic] in determining whether the identification

testimony is admissible.       Courts must look to       the   totality of the

circumstances    to   determine   whether    an   identification   is   reliable.”

Id. (citation omitted).

      Instantly, Hill testified that she saw appellant from less than 15 feet

away and could clearly see his face. (Notes of testimony, 7/8/15 at 9-10.)

Hill further testified that although appellant had changed his shirt, she was

able to identify him from his face, and she “looked at him dead in his eyes

like he’s looking at me now.” (Id. at 11, 22.) The record further reflects

that Hill made the on-scene identification just 20 to 25 minutes after the

incident. (Id. at 11.)

      Upon review, we find that appellant has failed to demonstrate that

Hill’s out-of-court identification was unreliable or that the procedure was



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impermissibly suggestive.        Appellant complains that he was handcuffed in

the back of a police SUV and that the police asked Hill to make an

identification.   (Id. at 20-21, 38.)     However, the fact that appellant was

handcuffed and the officers asked Hill whether or not she could identify him

as the perpetrator is not unduly suggestive. See Commonwealth v. Hale,

85 A.3d 570, 575 (Pa.Super. 2014) (stating, “[t]he fact that [a]ppellant was

handcuffed and police indicated that they wanted her to see if she could

identify [a]ppellant are not facts that give rise to an impermissibly

suggestive identification.” (citations omitted)), affirmed, 128 A.3d 781 (Pa.

2015). “Indeed, we have regularly held that a prompt one-on-one

identification enhances the reliability of the identification.”       Id. at 574

(citations omitted). Since we find that the out-of-court identification was not

unduly   suggestive,   it   is   not   necessary   to   determine   whether   Hill’s

subsequent in-court identification had an independent basis.

      Accordingly, for all the foregoing reasons, we affirm appellant’s

November 19, 2015 judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 6/6/18



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