J-S39006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

GENE BROWN,

                            Appellant                 No. 788 WDA 2016


       Appeal from the Judgment of Sentence Entered February 17, 2016
               In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0000981-2015


BEFORE: BENDER, P.J.E., BOWES, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                        FILED AUGUST 1, 2017

        Appellant, Gene Brown, appeals from the judgment of sentence of 3½

to 7 years’ incarceration, followed by 5 years’ probation, imposed after he

was convicted, following a non-jury trial, of robbery (threat of serious bodily

injury), 18 Pa.C.S. § 3701(a)(1)(ii), and conspiracy to commit robbery, 18

Pa.C.S. § 903(a)(1). After careful review, we affirm.

        The facts of this case can be summarized as follows. At approximately

10 p.m. on December 14, 2014, Andrew Latterner, a white male, was

smoking a cigarette at the intersection of Iowa and Bryn Mawr Streets in the

Hill District Section of the City of Pittsburgh. N.T. Trial, 11/16/15, at 8. As

he smoked, Latterner was approached by a group of two men and one

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*
    Retired Senior Judge assigned to the Superior Court.
J-S39006-17



female, all African-American, who encircled Latterner. Id. at 9, 12. One of

the men, identified at trial by Latterner as Appellant, stood in front of

Latterner and pulled out a rifle-type gun, which he pointed at Latterner’s

chest.     Id. at 12, 14, 14.      When Latterner raised his arms, Appellant

directed the other male to check Latterner’s pockets. Id. at 12. Appellant

then asked Latterner if he had a car, and Latterner replied that he did not.

Id. at 14. Appellant also asked if Latterner listened to music, and Latterner

told him that his cell phone - on which he would have listened to music -

was at his home. Id. Ultimately, Appellant and his cohorts took $40 from

Latterner’s wallet and fled. Id. at 15.

      Latterner testified that during the two-minute robbery, he was looking

at Appellant’s face as Appellant talked to him.     Id. at 16, 17.   Latterner

explained that Appellant was not wearing a mask, and he could see

Appellant’s face, even though Appellant had the hood of his sweatshirt up.

Id. at 16.     He also stated that the street was lit by a street light and

“ambient light from the houses around [him].” Id. at 17.

      After the robbery, Latterner called the police, who responded to the

scene and searched the area, but were unable to locate Appellant and his

cohorts.    Id. at 18, 32.    Latterner then traveled to Minnesota for several

weeks.     Id. at 18-19.     When he returned, he met with police officers on




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January 6, 2015.          Id. at 19, 20.1        The officers showed Latterner a

photographic array, and told him it “might contain a suspect, [or] it might

not.”     Id. at 19.       After examining the photographs in the array for

approximately one minute so he could “recall the details in [his] brain” and

not “make any mistakes[,]” id. at 27, Latterner circled Appellant’s picture

because he remembered Appellant’s face, id. at 21, 28.             Latterner also

identified Appellant as one of the robbers at Appellant’s preliminary hearing,

and he again identified him as the gun-wielding robber at trial. Id. at 11,

22.

        The Commonwealth also introduced into evidence a prison telephone

recording of a January 16, 2015 conversation between Appellant and his

grandmother. Id. at 43. That conversation, in its entirety, was as follows:

        [Appellant]: I need Naya’s alibi, but the phone had hung up on
        me.

        [Grandmother]: What Naya’s alibi Gene?

        [Appellant]: So that she could say I was with her on the 14th.

        [Grandmother]: Was you with her?

        [Appellant]: No.

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1
  Appellant’s picture was included in that photographic array because he was
stopped by police in the area of another robbery on December 27, 2014, and
officers observed that he “fit the description of the [perpetrator of the]
robbery that occurred to Andrew Latterner on December 14 of 2014. And
[Appellant] lives near where [the Latterner] robbery occurred.” Id. at 36,
37. Appellant was not arrested or charged in relation to the December 27,
2014 robbery. Id. at 37.



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      [Grandmother]: He don’t know that they listen to every damn
      thing he says. Gene, whatever you talk about they can [YOU
      HAVE THIRTY SECONDS REMAINING]

      [Appellant]: Alright, Grandma.

See Supplemental Transcript (filed with this Court on 3/20/17).

      After the Commonwealth rested its case, Appellant called one witness,

Dr. Jonathan Vallano, who testified as an expert on the reliability of

eyewitness identification.   N.T. Trial at 49, 51.   Dr. Vallano testified that

there are certain variables that can decrease the accuracy of eyewitness

identification.   In this case, some of the variables discussed by the doctor

were present, such as the “low levels of illumination” because the robbery

occurred at night, id. at 54; the presence of a weapon, which may have

drawn Latterner’s attention away from the robber’s face and caused him fear

or stress that impacted his focus, id. at 54-55, 56; Latterner’s making a

cross-racial identification, id. at 55; and the fact that Latterner’s first

identification of the robbery from a photographic array was made three

weeks after the robbery, id. at 55-56.

      At the close of the trial, the court found Appellant guilty of robbery and

conspiracy.       On February 17, 2016, the court sentenced him to the

aggregate term stated supra. Appellant filed a timely post-sentence motion,

which the court denied on May 4, 2016. Appellant then filed a timely notice

of appeal, and he also timely complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) statement. The court subsequently filed a Rule 1925(a)

opinion. Herein, Appellant presents two issues for our review:



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      I. Did the trial court err in taking “judicial notice” of facts not of
      record; in essence, inferring details not in evidence by “reading
      between the lines” to create improper inferences that do not
      reasonably flow from the evidence presented?

      II. Was the evidence presented at trial sufficient to support
      [Appellant’s] convictions for robbery and conspiracy, in that the
      trial court, sitting as the fact-finder, based the guilty verdict on
      speculation, considered facts not in evidence, argued with the
      expert when the scientific evidence on eyewitness identification
      did not comport with [the court’s] previously held beliefs, and
      speculated about certain inferences because he could hear things
      in the African-American grandmother’s voice that others could
      not hear?

Appellant’s Brief at 5.

      Appellant divides his initial issue into two separate claims.      First, he

avers that the court improperly took ‘judicial notice’ of certain facts that

were not supported by the evidence. Second, Appellant maintains that the

court erred in questioning Dr. Vallano. Preliminarily, we note that Appellant

does not point to where he objected to either of these purported trial court

errors. However, we recognize that in Commonwealth v. Hammer, 494

A.2d 1054 (Pa. 1985), abrogated on other grounds by Commonwealth v.

Grant, 813 A.2d 726 (Pa. 2002), our Supreme Court relaxed “the waiver

doctrine in the case of judicial intemperance[,] for counsel cannot veto

actions viewed by the judge to be wholly permissible.”        Id. at 1060. The

Hammer Court concluded that, because the record in that case evinced

“that objection would [have been] meaningless to satisfy the reasons for

raising objection and … indeed intensified judicial animosity, justice [would]

not [be] served by the strict application of the waiver doctrine.”             Id.

Accordingly, the Court held “that the failure of trial counsel to object to the

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questioning by the judge, who is charged with a function of self-regulation,

will not under all circumstances render the allegation of judicial impropriety

unavailable for appellate review.” Id.

       In this case, we will apply the relaxed waiver doctrine of Hammer,

and we will not deem the claims that Appellant proffers within his first issue

waived. Accordingly, we will address those claims in turn.

       Appellant begins by arguing that the trial court improperly took

‘judicial notice’ of certain facts when the court was interpreting the prison

phone conversation between Appellant and his grandmother.                  Specifically,

during defense counsel’s closing argument, the court stated that there was a

“cultural component” to its interpretation of Appellant’s conversation with his

grandmother.2 N.T. Trial at 71. The court then explained that it understood

Appellant’s remarks during the conversation as Appellant’s “telling [his

grandmother to], ‘Find [him] a way to get out of here. Find someone who

will lie to get [him] out of here.’” Id. at 72. The court also interpreted the

call as including a question from Appellant’s grandmother about whether

Appellant was caught with a gun.               Id. (the trial court’s stating, “She was

asking him some questions. ‘Did they catch you with the gun?’ That means

something.”). Appellant complains that the court’s application of a ‘cultural


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2
  Appellant interprets the court’s remark about a “cultural component” as
referring to the fact that Appellant, his grandmother, and the trial judge are
all African-American. See Appellant’s Brief at 28 n.5.



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component’ was improper, and that it led to the court’s taking ‘judicial

notice’ of facts not supported by the actual content of the phone call, or by

any other evidence at trial.

       Preliminarily, we note that the trial court never stated that it was

taking ‘judicial notice’ of any fact(s). Rather, the court explained that it was

drawing inferences from the statements made by Appellant and his

grandmother during the phone call.         Therefore, we must assess whether

those inferences were reasonable.        In regard to the court’s inferring that

Appellant was asking his grandmother to find someone to lie for him, we do

not consider the court’s interpretation to be off mark.       Notably, Appellant

told his grandmother that he needed ‘Naya’ to say he was with her on the

‘14th.’ When his grandmother asked him if he had actually been with ‘Naya,’

Appellant said no.     It was reasonable for the court to infer, from those

remarks, that Appellant was attempting to fabricate an alibi for the robbery

that occurred on December 14, 2014, and that he was seeking assistance

from his grandmother in that endeavor.           Therefore, we see no error in

regard to the court’s inference that Appellant was trying to find someone to

lie for him.

       Next, Appellant avers that it was unreasonable for the court to

conclude that his grandmother asked him whether he was caught with the

gun.   We are compelled to agree.         Nothing in Appellant’s grandmother’s

statements could be interpreted as her asking, or even implying, such a

question.      In   fact,   it   seems   the   court   may   have   simply   been

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misremembering the content of the call. In any event, we must agree with

Appellant that no evidence supported that inference and, therefore, it was

unreasonable.

     Nevertheless, we agree with the Commonwealth that the court’s

erroneous interpretation of this fact was harmless error that did not

contribute to the court’s verdict. Our Supreme Court has declared:

     It is well settled that “an appellate court has the ability to affirm
     a valid judgment or verdict for any reason appearing as of
     record.” Commonwealth v. Parker, 591 Pa. 526, 534–35, 919
     A.2d 943, 948 (2007) (citing Commonwealth v. Katze, 540
     Pa. 416, 658 A.2d 345 (1995) (Opinion in Support of
     Affirmance)). As we explained in Commonwealth v. Thornton,

        [t]he doctrine of harmless error is a technique of appellate
        review designed to advance judicial economy by obviating
        the necessity for a retrial where the appellate court is
        convinced that a trial error was harmless beyond a
        reasonable doubt. Its purpose is premised on the well-
        settled proposition that “[a] defendant is entitled to a fair
        trial but not a perfect one.”

     494 Pa. 260, 266, 431 A.2d 248, 251 (1981). This Court may
     affirm a judgment based on harmless error even if such an
     argument is not raised by the parties.

Commonwealth v. Allshouse, 36 A.3d 163, 182 (Pa. 2012) (footnote

omitted).

     Here, it is apparent that the trial court’s improper conclusion that

Appellant’s grandmother asked him if he was caught with the gun did not

impact the court’s verdict and, therefore, the error was harmless beyond a

reasonable doubt.   Just before the court rendered its verdict of guilt, it

repeatedly stressed that it found Andrew Latterner’s testimony and


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identification of Appellant to be “perfectly credible.”      N.T. Trial at 88, 89.

While the court mentioned “[t]hat the phone call affected it[,]” the court did

not elaborate on that remark in any way;        instead, the court immediately

returned to its discussion of why it found Latterner to be credible. Id. at 88.

At no point did the court refer to its erroneous interpretation of the prison

phone call as including a question from the grandmother about whether

Appellant was caught with the gun.

      We also note that in its opinion and order denying Appellant’s post-

sentence motion for a new trial, the court again indicated that its verdict

rested solely on the Latterner’s identification of Appellant as the gun-

wielding robber.    Specifically, the court stated: “Evidence from a single

witness - if believed - can sustain a verdict. This is one of those cases.”

Memorandum      Opinion    and   Order,   5/4/16,   at   2    (emphasis   added).

Additionally, in its Rule 1925(a) opinion, the court reiterates that Latterner’s

credibility was the basis for its convicting Appellant.          See Trial Court

Opinion, 9/19/16, at 2 (“[T]he [c]ourt believed the victim.           The [c]ourt

found Mr. Andrew Latterner from Minnesota to be a very credible witness.”).

Based on this record, it is clear that the court’s verdict did not rest - in whole

or even in part - on the fact that the court believed Appellant’s grandmother

asked him if he was caught with the gun. Thus, the court’s error in drawing

this erroneous inference from the phone conversation was harmless.




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      The second claim Appellant presents within his first issue is that the

court erred by questioning the defense’s expert witness, Dr. Vallano.

Appellant explains his claim, as follows:

            [B]efore the expert witness, Dr. Vallano, began a
      presentation on the science surrounding the field of eyewitness
      testimony, [the trial court] interjected [its] own thoughts and
      understanding about the subject. Then, after examination by
      defense counsel, the court conducted its own examination of the
      expert.

            A large portion of the court’s questioning revolved around
      the idea of cross-racial identification. Specifically, the court
      inquired, “What if on this [cross-]racial identification, what if the
      party that was identifying, although may be of a different race,
      what if he grew up with the race he was identifying? Would that
      make a difference?” NT at 60. “For instance, what if I grew up
      in China. Would I be better at identifying Chinese than my
      brother who grew up in Manchester?” Id. Dr. Vallano replied,
      “[A]t this point in the literature, we’re not really sure if [that]
      exists.” [Id.] at 60-61.

             Continuing in that vein, the court asked, “What about this.
      What about a Chinese guy who grew up in Harlem? Would he be
      better if he went to China at identifying a Chinese guy than a
      black guy?” [Id. at] 62. Dr. Vallano’s response was, “[T]he
      research is inconclusive.” Id. To this, the court replied, “The
      point I’m making is that the research is really shabby. The point
      that you’re getting to, that you’re making this definitive answer
      about, around … [cross-]racial identification, there is very little
      reliable information at all other than --.” Id. The examination
      by the court extends for several pages in the transcript. [Id. at]
      60-66.

Appellant’s Brief at 34-35.

      While Appellant recognizes that “a trial court may, at times, question a

testifying   witness   to   clarify   a   witness’s   testimony[,]”   id.   (citing

Commonwealth v. Hogentogler, 53 A.3d 866, 880 (Pa. Super. 2012), he



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nevertheless argues that the court’s “extensive examination” of Dr. Vallano

amounted to the court’s “enter[ing] the case as an advocate.” Appellant’s

Brief at 37.    Appellant also avers that the court was predisposed to

disbelieving the defense’s expert, as the court held a “pre-conceived notion

that the Caucasian victim in this case, who lived in a primarily African-

American neighborhood, would not have the same difficulties with identifying

his attacker as every other Caucasian.” Id. at 36. According to Appellant,

“[t]he court seemed to ignore the expert witness when his testimony

conflicted with the [court’s] pre-conceived notions relating to the accuracy of

eyewitness testimony[,]” and, thus, the court failed to “remain an impartial

arbiter of the facts of this case.” Id. at 37.

      We begin by recognizing that,

      [i]t is always the right and sometimes the duty of a trial judge to
      interrogate witnesses, although, of course, questioning from the
      bench should not show bias or feeling nor be unduly protracted.
      A major reason for the restrictions on a trial judge's questioning
      is the concern that his conduct may lead the jury to conclude
      that the court has made up its mind on the question of the
      defendant's guilt, and that the jury should follow the judge's
      opinion. That consideration, of course, is not present in a bench
      trial or a suppression hearing. Nevertheless, even in those
      situations, “questioning from the bench should not show bias or
      feeling nor be unduly protracted[.]” This is not because of what
      might be intimated to a non-existent jury but because the
      parties are entitled to a fair fact-finder who, while not allowing
      himself to be put in a straightjacket by the adversary system,
      does not attempt to banish the restraints of that system from
      the courtroom.

Commonwealth v. Seabrook, 379 A.2d 564, 567–68 (Pa. 1977) (citations

and quotation marks omitted).


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      Here, while we acknowledge the court’s questioning of Dr. Vallano was

needlessly lengthy, we agree with the Commonwealth that nothing in the

court’s questioning indicated any bias against the defense, or that the court

had made a predetermined decision not to believe the doctor’s testimony.

Rather, it is apparent from the record that the court asked questions to

clarify Dr. Vallano’s opinion about the scientific findings in the area of cross-

racial identification, and how those findings should impact the court’s

credibility determination regarding Latterner’s identification in this case. The

trial court’s explanation in its opinion supports this interpretation of the

record:

      A detached reading of the expert’s testimony will show [that] the
      [c]ourt, fueled by its fascination of how the law and science
      evolve, posed questions which furthered the inquiry and allowed
      the expert to demonstrate his expertise on the topic. The
      [c]ourt understood what the expert was saying. The [c]ourt
      understands the underlying social science and its current
      limitations. But, that understanding does not equal a defense
      verdict. The [c]ourt found the single witness identification to
      triumph over the defense[-]generated expert evidence.

TCO at 3-4. Given our review of the record, and the court’s discussion in its

opinion, we ascertain no reversible error in the court’s questioning of Dr.

Vallano. Thus, Appellant’s first issue is meritless.

      In Appellant’s second issue, he challenges the sufficiency of the

evidence to support his convictions for robbery and conspiracy.
           In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d

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      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

      To prove Appellant committed robbery in this case, the Commonwealth

was required to demonstrate that he “threaten[ed] another with or

intentionally put[] him in fear of immediate serious bodily injury[.]”              18

Pa.C.S.    §    3701(a)(1)(ii).     Additionally,   “[a]   conviction    for   criminal

conspiracy, 18 Pa.C.S. § 903, is sustained where the Commonwealth

establishes that the defendant entered an agreement to commit or aid in an

unlawful act with another person or persons with a shared criminal intent

and   an       overt   act   was   done    in   furtherance   of   the   conspiracy.”

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002)

(citations omitted).

      Here, Appellant solely argues that the evidence was insufficient to

sustain either of these convictions because “the Commonwealth failed to

prove his identity as the culprit beyond a reasonable doubt.”              Appellant’s

Brief at 42. As Appellant recognizes,

      [i]n determining whether a particular identification was reliable,
      the court “should consider the opportunity of the witness to view
      the criminal at the time of the crime, the witness’ degree of
      attention, the accuracy of [his or her] prior description of the
      criminal, the level of certainty demonstrated at the
      confrontation, and the time between the crime and the
      confrontation. The opportunity of the witness to view the actor at
      the time of the crime is the key factor in the totality of the


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      circumstances analysis.” Commonwealth v. Bruce, 717 A.2d
      1033, 1037 (Pa. Super. 1998) (citations omitted).

         [E]vidence of identification need not be positive and
         certain to sustain a conviction. Although common items of
         clothing and general physical characteristics are usually
         insufficient to support a conviction, such evidence can be
         used as other circumstances to establish the identity of a
         perpetrator. Out-of-court identifications are relevant to our
         review of sufficiency of the evidence claims, particularly
         when they are given without hesitation shortly after the
         crime while memories were fresh. Given additional
         evidentiary    circumstances,    any    indefiniteness   and
         uncertainty in the identification testimony goes to its
         weight.

Commonwealth v. Valentine, 101 A.3d 801, 806 (Pa. Super. 20014)

(quoting Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011)).

      Appellant claims that in this case, the court should have found

Latterner’s identification unreliable because three weeks had passed before

Latterner picked Appellant from the photographic array, the presence of a

gun during the robbery likely drew Latterner’s focus away from the face of

the robber, and cross-racial identifications are necessarily less reliable.

Appellant also notes that Latterner did not give a specific description of his

assailants to police, only stating that the gun-wielding robber was a black

man who was taller than 5’5”, and who was wearing black sweatpants and a

dark blue hooded sweatshirt. See Appellant’s Brief at 44.

      Additionally, Appellant avers that Latterner’s identification of him at

the preliminary hearing was not compelling, where Appellant “was the only

person in the room other than the attorneys,” and Latterner “may have

identified [Appellant] at the preliminary hearing because he remembered


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seeing the photo (not the gunman) before….” Id. at 45. Appellant presents

a similar argument in challenging the credibility of Latterner’s identification

of him at trial, claiming that Latterner “may have identified [Appellant] at

trial because he remembered him from the preliminary hearing, not because

he remembered [Appellant] as the gunman.” Id. at 45-46.

      Finally, Appellant reiterates the arguments presented in his first issue,

claiming that the trial court “bas[ed] the guilty verdict on evidence that

simply was[ not] there -- evidence that the court inferred from the call to

[Appellant’s] grandmother.” Id. at 48. Therefore, in Appellant’s view, “the

verdict herein [was] largely based upon speculation and surmise” and, thus,

it must be reversed. Id. at 49.

      Appellant’s arguments are unconvincing. Initially, we will not rehash

our discussion of his claim that the trial court relied on a fact not supported

by the evidence in reaching its verdict, as it is clear the court focused on

Latterner’s identification in convicting Appellant, not its interpretation of the

prison phone call between him and his grandmother. Moreover, in our view,

the totality of the circumstances surrounding Latterner’s identification of

Appellant permitted the court to find it credible.     Latterner testified that,

while Appellant had the hood of his sweatshirt pulled up, Latterner was able

to see his face during the two-minute robbery.         The street was lit by a

streetlight, and by lights from the houses on the street.       Appellant asked

Latterner questions during the robbery, and Latterner testified that he “was

looking at [Appellant’s] face” as Appellant spoke to him.      N.T. Trial at 16.

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Latterner later testified on redirect examination that he was not looking at

the gun when speaking with Appellant, but he was instead looking at

Appellant’s face. Id. at 28.

      Moreover,   while   Latterner    did     not   identify   Appellant    in   the

photographic array until three weeks after the robbery, his identification at

that point was certain. Specifically, Latterner testified that he examined the

photographs for approximately one minute as he “recalled the details” of the

robbery “so [he] didn’t make any mistakes.” Id. at 27. He then selected

Appellant’s photograph because he recognized Appellant’s face.              Id.   The

officers who presented the array informed Latterner that the array might, or

might not, contain a suspect, and Latterner did not feel that he “had to

select a photo[.]”    Id. at 19.   Latterner also testified that he identified

Appellant at the preliminary hearing, and he did not waiver when identifying

Appellant at trial as the gun-wielding robber. Id. at 10-11, 22.

      The totality of the circumstances surrounding Latterner’s out-of-court

identification of Appellant were sufficient to permit the court to find it

credible, especially considering that Latterner remained consistent in

identifying Appellant at the preliminary hearing and at trial.          While Dr.

Vallano testified that certain factors in this case could have impacted the

accuracy of Latterner’s identification, the trial court was free to reject that

testimony and believe Latterner’s claim that Appellant was one of the people

who robbed him.      Based on Latterner’s identification of Appellant and his




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testimony about the robbery, the evidence was sufficient to support

Appellant’s convictions.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/2017




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