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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                    v.                  :
                                        :
DARRYL DEWS,                            :          No. 918 EDA 2014
                                        :
                         Appellant      :


         Appeal from the Judgment of Sentence, November 8, 2013,
            in the Court of Common Pleas of Philadelphia County
             Criminal Division at Nos. CP-51-CR-0001366-2012,
             CP-51-CR-0001772-2012, CP-51-CR-0014064-2011


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND FITZGERALD,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED JULY 28, 2015

      Appellant, Darryl Dews, robbed three barbershops at gunpoint.

Following a jury trial, he was convicted of 12 counts of robbery, three counts

of conspiracy, and three counts of possessing an instrument of crime. On

November 8, 2013, the Honorable Glenn Bronson sentenced appellant to an

aggregate term of 50 to 100 years’ imprisonment. We affirm.

      The facts and procedural history, as summarized by the trial court, are

as follows.

                    On November 18, 2011, Stevie Bright was at
              the N the Kuts barbershop, located at 2514 South
              71st Street in West Philadelphia, repairing the
              bathroom floor. N.T. 9/21/13 at 49. Also present in
              the shop were Bright’s friend, Stephen Green, the
              barber Jaladeen Fleming, a Mr. McGlone, and an
              unidentified juvenile.  N.T. 9/20/13 at 154-155;
              9/21/13 at 50. Defendant and Michael Lewis entered


* Former Justice specially assigned to the Superior Court.
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          the barbershop wearing ski masks that left their
          faces exposed and with firearms extended. N.T.
          9/21/13 at 50-52. Defendant stated, “[t]his is a
          robbery, everybody get on the ground.”         N.T.
          9/21/13 at 29.      Defendant and Lewis took cell
          phones, cash, and other items from the occupants of
          the barbershop before leaving. N.T. 9/21/13 at 51.
          Officers were not able to locate defendant or Lewis
          that night. N.T. 9/20/13 at 156.

                 On    November     23,   2011,   Kali  Avans,
          Dwight Lee, and Tonya Lee-Phillips were getting their
          hair cut at the Stay Focused barbershop, located at
          6031 Vine Street in West Philadelphia, by barbers
          Quimon Broady and Khalil Avans. N.T. 9/21/13 at
          119. Also present was Ms. Lee-Phillips’s three-year-
          old child. N.T. 9/21/13 at 119. At approximately
          8:30 p.m., Corey Petty entered the barbershop in
          order to “scope it out” for defendant and Lewis, who
          were waiting outside the barbershop. N.T. 9/21/13
          at 185. Petty asked for the price of a haircut for
          himself and his younger brother and then left the
          barbershop. N.T. 9/21/13 at 184. Defendant and
          Lewis then entered. N.T. 9/21/13 at 187. Upon
          entering the barbershop, defendant, wearing, a black
          skull hat, black jacket, and blue jeans, and Lewis
          announced a robbery and ordered everyone to the
          floor. N.T. 9/21/13 at 128. Defendant approached
          Dwight Lee and, holding a gun to Lee’s head, said
          ‘‘[y]’all know what it is.” N.T. 9/21/13 at 150.
          Turning to Ms. Lee-Phillips, defendant demanded
          “[b]itch, where is your pocketbook?” N.T. 9/21/13
          at 153. Defendant subsequently took multiple items
          from the occupants of the barbershop, including cell
          phones and Ms. Lee-Phillips’ purse, before leaving.
          N.T. 9/21/13 at 129-131.        After defendant left,
          Avans dialed 911 and alerted the police of the
          robbery. Philadelphia Police Officer Anthony Jones
          responded to the scene but was unable to locate
          defendant. N.T. 9/20/13 at 145.

                On November 25, 2011, William Lovett and
          Officer Anthony Jackson, then off-duty, were getting
          their hair cut at Brothers Barbershop, located at the


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          corner     of   53rd   and    Sansom      streets    in
          West Philadelphia. N.T. 9/19/13 at 56, 172. Also
          present in the barbershop were Candace Rahemtulla,
          an employee of the barbershop, as well as barbers
          Jamal Edwards and Corey Ellis. N.T. 9/19/13 at 105,
          173. While Officer Jackson was getting his hair cut,
          defendant       and     two      other     individuals,
          McDaniel Walker and Danny Matthews, entered the
          barbershop with firearms extended and defendant
          announced “[y]ou know what this is,” ordering
          everyone to the floor. N.T. 9/19/13 at 60, 106, 174.
          Defendant was wearing a gray sweatshirt and gray
          sweatpants.      N.T. 9/19/13 at 177.       Defendant
          directed Walker and Matthews as they collected
          wallets, cell phones, and other items from the
          occupants of the barbershop. N.T. 9/21/13 at 191;
          9/19/13 at 182. Officer Jackson, in an attempt to
          prevent the assailants from finding his firearm,
          moved his gun from his right hip to his stomach
          before lying down on the ground. N.T. 9/19/13 at
          175-176. After Officer Jackson laid down on the
          ground, defendant stated “[y]o, check that mother
          fucker, he doing a lot of moving,” whereupon the
          other two men patted down Officer Jackson and
          found his firearm. N.T. 9/19/13 at 178-179. After
          all occupants were searched and items seized,
          defendant Walker, and Matthews left the barbershop,
          having left victim Candace Rahemtulla in possession
          of her cell phone, from which she dialed 911. N.T.
          9/19/13 at 108.       After the assailants left the
          barbershop, Officer Jackson followed them until they
          entered into a white Chevy vehicle, parked on the
          north side of Sansom Street. N.T. 9/19/13 at 184.
          Officer Jackson then used the cell phone of a
          concerned citizen in the area and called 911,
          identifying himself as an off-duty police officer, and
          gave a description of the three individuals, as well as
          the vehicle in which they had left the area. N.T.
          9/19/13 at 189.

                Philadelphia Police Officer Eric Girill was the
          first Philadelphia Police Officer to arrive at the
          Brothers Barbershop, having been flagged down by
          Officer    Jackson.      N.T.   9/19/13      at  117.


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          William Lovett informed Officer Girill that his iPhone
          had been taken, and that he had installed the “Find
          My iPhone” app on the phone, which permits the
          remote activation of an iPhone’s built in GPS locator
          in order to determine the phone’s location. N.T.
          9/19/13 at 70.       Officer Girill inputted Lovett’s
          identifying information into his own iPhone, which
          located Lovett’s phone in the area of 57th and Walnut
          Streets. N.T. 9/19/13 at 121. Officer Girill relayed
          this information over police radio, refreshing the
          location information every 15 seconds. N.T. 9/19/13
          at 122.

                 Officer Christina Mellett and her partner,
          Officer Jessie, responded to the relayed iPhone
          information and arrived at 57th and Walnut Street.
          N.T. 9/19/13 at 141.           There they noticed
          Corey Petty, rapidly knocking on a door yelling “[l]et
          me in, let me in.”          N.T. 9/19/13 at 144.
          Officer Mellett stopped Petty and did a search for
          officer safety, locating Lovett’s iPhone on Petty’s
          person, which Petty later claimed he had bought
          from a “smoker.” N.T. 9/19/13 at 145, 154. A white
          Chevy vehicle was parked directly across the street.
          N.T. 9/20/13 at 84. Lovett later identified his iPhone
          at the scene. N.T. 9/19/13 at 73.

                 Soon after Officer Mellett detained Petty,
          Officer Joseph Keys arrived at the scene and went to
          the property that Petty had been attempting to
          enter. Petty’s mother, Nichole Petty, answered the
          door while defendant was standing behind her. N.T.
          9/20/13 at 42. Defendant was wearing the same
          gray sweat suit he had worn during the robbery.
          N.T. 9/20/13 at 44. Defendant was detained for
          further investigation, as were the co-defendants who
          were found at the home.          N.T. 9/20/13 at 44.
          Approximately fifteen minutes after the robbery
          occurred,    Officer   Jackson     and   Lovett  were
                             th
          transported to 57 and Sansom Streets, where they
          positively identified all individuals who had entered
          the barbershop.       N.T. 9/19/13 at 73-76, 193.
          Defendant was subsequently taken into custody.



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                After transporting Petty to the police station for
          processing, Officer Mellett found keys to a Chevy
          Impala on the back floor of her police vehicle where
          she had placed Petty. N.T. 9/19/13 at 150. These
          keys matched the white Chevy vehicle parked
          outside the 57th Street residence. N.T. 9/19/13 at
          151. Petty subsequently gave a statement to police
          implicating himself in the Brothers Barbershop
          robbery, as well as the robbery at the Stay Focused
          barbershop. N.T. 9/21/13 at 204. N.T. 9/21/13 at
          131. Using the statements given by Petty, police
          obtained a search warrant for Petty’s girlfriend’s
          home on North 63rd Street, where they recovered the
          cell phone belonging to Quimon Broady, a victim of
          the Stay Focused robbery.

                 Later that evening, Detective Craig Fife
          obtained a search warrant for the 57th Street
          residence, as well as the white Chevy vehicle parked
          outside. N.T. 9/20/13 at 84. Recovered from the
          residence were a black iPhone, later identified as
          belonging to Officer Jackson, and a snub nose
          .38 caliber Smith & Wesson revolver. N.T. 9/20/13
          at 96-97.      Recovered from the vehicle was a
          .40 caliber Glock semi-automatic handgun, later
          identified as belonging to Officer Jackson, and two
          AAA cards with the name Tonya Lee-Phillips. N.T.
          9/20/13 at 88-89. Detective Fife ran Ms. Lee-Phillips
          name through the police database and determined
          that she was a victim of the robbery at the Stay
          Focused barbershop. N.T. 9/20/13 at 91. Detective
          Fife then did a search to determine if any other
          similar robberies had occurred in the area,
          identifying the robbery of the N the Kuts barbershop.
          N.T. 9/20/13 at 107.

                On November 27, 2011, Kali Avans, from the
          Stay Focused robbery, was asked to view a photo
          array containing defendant’s photo. Avans picked
          defendant out of the photo array, circling defendant’s
          photo and stating he was 85% certain that
          defendant was the individual who had robbed him.
          N.T. 9/21/13 at 136.        On January 11, 2012,
          Detective Bill Urban conducted a court-ordered


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           lineup for Avans and Ms. Lee-Phillips. N.T. 9/21/13
           at 107. Avans did not hesitate in picking defendant
           out of the lineup. N.T. 9/21/13 at 110. Ms. Lee-
           Phillips did not correctly identify defendant at the
           lineup, instead identifying another participant in the
           lineup. N.T. 9/21/13 at 110.

                 On November 29, 2011, Detective Fife
           contacted Stevie Bright, a victim of the N the Kuts
           barbershop robbery, in order to show him a photo
           array containing defendant’s photograph.        N.T.
           9/20/13 at 110. Bright identified defendant as a
           person involved in the robbery. N.T. 9/20/13 at 110,
           N.T. 9/21/13 at 64.

Trial court opinion, 6/10 14 at 2-6 (footnote omitted).

     Prior to the beginning of the jury trial, appellant raised a motion to

suppress. The purpose of the motion to suppress was that the identification

made of appellant was highly suggestive and improper such that it deprived

him of a fair trial. Hearings were held on September 17 and 18, 2013. The

Commonwealth presented the testimony of Detectives Fife and Maurizio,

Officers Butler and Jackson, and a victim, Lovett. Their testimony regarding

the identification of appellant as the perpetrator of the robberies was

consistent with the evidence presented at trial.      The court denied the

motion.

     Appellant presents two issues for our review.

           A.    DID THE TRIAL COURT ERR WHEN IT DENIED
                 THE MOTION TO SUPPRESS THE IN-COURT
                 IDENTIFICATION OF THE APPELLANT WHERE
                 THE ON-SCENE IDENTIFICATION OF THE
                 APPELLANT WAS HIGHLY SUGGESTIVE?




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             B.    WAS      THE    EVIDENCE     PRESENTED
                   INSUFFICIENT AND/OR AGAINST THE WEIGHT
                   OF THE EVIDENCE TO SUPPORT THE VERDICT
                   WHERE IT FAILED TO SHOW THAT THE
                   APPELLANT COMMITTED THE ROBBERIES FOR
                   WHICH HE WAS ACCUSED?

Appellant’s brief at 6.

      Appellant    first   argues   that    the   on-scene   identifications   of

Officer Jackson and Mr. Levitt should have been suppressed as the

circumstances were highly suggestive. No relief is due.

      Our standard and scope of review in evaluating a suppression issue are

settled.

             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).

             In reviewing the propriety of identification evidence,
             the central inquiry is whether, under the totality of
             the circumstances, the identification was reliable.
             The purpose of a “one on one” identification is to
             enhance reliability by reducing the time elapsed after
             the commission of the crime. Suggestiveness in the
             identification process is but one factor to be
             considered in determining the admissibility of such
             evidence and will not warrant exclusion absent other


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            factors. As this Court has explained, the following
            factors are to be considered in determining the
            propriety of admitting identification evidence: 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 certainty demonstrated at
            the confrontation, and the time between the crime
            and confrontation.      The corrupting effect of the
            suggestive identification, if any, must be weighed
            against these factors. Absent some special element
            of unfairness, a prompt “one on one” identification is
            not so suggestive as to give rise to an irreparable
            likelihood of misidentification.

Id., quoting Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.Super.

2003), appeal denied, 851 A.2d 142 (Pa. 2004).

      Appellant’s argument focuses on the fact that, when identified, he was

in police custody and in handcuffs.     (Appellant’s brief at 14-15.)    As the

Commonwealth states, appellant’s argument has been repeatedly rejected.

While both Officer Jackson and Mr. Lovett identified appellant while in

handcuffs, this fact alone does not constitute grounds for reversing the

suppression court.    Commonwealth v. Armstrong, 74 A.3d 228, 238

(Pa.Super. 2013), appeal granted on other grounds, 83 A.3d 411 (Pa.

2014) (finding that “on-scene, one-on-one identifications, even where an

appellant is handcuffed and officers ask a victim to identify him as the

perpetrator, are ‘not so suggestive as to give rise to an irreparable likelihood

of misidentification’”); Commonwealth v. Donley, 455 A.2d 159, 161-162

(Pa.Super. 1983) (holding that witness identification two hours after robbery




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while defendant was handcuffed and seated in the back of a police car did

not violate due process).

      A review of the testimony presented at the suppression hearing

reveals that Jackson, an off-duty police officer, testified that the barbershop

was well-lit.   Jackson positively identified appellant 15 minutes after the

crime occurred. The officer stated he was 100% certain appellant was the

perpetrator because “it happened just approximately 15 minutes before,”

and “appellant was wearing the same identical clothes.”             (Notes of

testimony, 9/17/13 at 31.)    Officer Jackson testified that nothing covered

appellant’s face during the robbery, and he observed appellant for

approximately three to five minutes.

      Separately, Mr. Lovett positively identified appellant after the police

brought him to the scene of appellant’s arrest soon after the robbery. Lovett

testified that during the robbery, appellant stood no more than ten feet

away with nothing covering his face. Appellant was wearing a gray hooded

sweatshirt and gray pants. Lovett stated the lighting in the barbershop was

“extremely bright.” (Id. at 15.) No relief is due.

      Appellant’s second issue combines two legally distinct arguments --

the sufficiency and the weight of the evidence.      (Appellant’s brief at 16.)

Appellant’s claim is waived pursuant to Commonwealth v. Lemon, 804

A.2d 34 (Pa.Super. 2002). In Lemon, we held that although the appellant

raised some specific challenges in his appellate brief, the vagueness of his



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Rule 1925(b) statement,1 which prevented the trial court from analyzing his

claims of trial court error, precluded effective appellate review. We held that

under Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998), and its progeny,

the appellant waived his claims on appeal.          Id. at 37-38; see also

Commonwealth v. Seibert, 799 a.2d 64, 62 (Pa.Super. 2002) (appellant’s

weight of the evidence issue waived for having filed a vague Rule 1925(b)

statement, to wit, “[t]he verdict of the jury was against the weight of the

credible evidence as to all charges.”)

      In this case, appellant’s court-ordered Rule 1925(b) statement

provided:

            the verdict is against the weight of the evidence
            and/or the evidence is insufficient to support the
            verdict because: a. the evidence presented at trial by
            the Commonwealth failed to support a conviction for
            the crime of robbery and conspiracy. Specifically,
            that the evidence introduced at trial was not
            sufficient enough to cause a reasonable juror to
            convict the appellant of said crimes.

Docket #11. Appellant was convicted of twelve counts of robbery and three

counts of conspiracy in relation to three separate robberies with numerous

victims. Appellant left the trial court to speculate as to the specific elements

not met with regard to each robbery and conspiracy or how the verdict was

against the weight of the evidence. In point of fact, the argument presented


1
  The appellant in Lemon stated in his Rule 1925(b) statement that “[t]he
verdict of the jury was against the evidence,” “[t]he verdict of the jury was
against the weight of the evidence,” and “[t]he verdict was against the law.”
Lemon, 804 A.2d at 37.


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in   appellant’s   brief   challenges   the    credibility   of   the   testimony   and

identifications of a number of eyewitnesses, neither of which the trial court

addressed in its Rule 1925(a) opinion, which summarily disposed of

appellant’s second issue. Thus, we find this issue has not been preserved

for appellate review.2

       Judgment of sentence affirmed.



       Stabile, J. joins the Memorandum.

       Fitzgerald, J. concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/28/2015




2
  We are cognizant of the supreme court’s decision in Commonwealth v.
Laboy, 936 A.2d 1058 (Pa. 2007), cited by the trial court. In Laboy, the
court determined we erred in deciding appellant had failed to adequately
develop his claim of insufficient evidence to support his conviction in his
Rule 1925(b) statement, noting that the case was a “relatively
straightforward drug case” though “in more complex criminal matters the
common pleas court may require a more detailed statement to address the
basis of the sufficiency challenge.” Id. at 1060. We find the instant matter
is distinguishable as it is more complex and requires at least some specificity
concerning whether appellant is taking issue with one or all of the robberies
and conspiracies.


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