J-S49001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    DUSTIN RAYMOND ANDREJCO-                   :
    JONES,                                     :
                                               :   No. 81 WDA 2016
                      Appellant

              Appeal from the Judgment of Sentence July 29, 2015
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003120-2014,
                             CP-02-CR-0003124-2014


BEFORE:      DUBOW, J., SOLANO, J., and FITZGERALD J.*

MEMORANDUM BY DUBOW, J.:                              FILED OCTOBER 06, 2017

        Appellant, Dustin Raymond Andrejco-Jones, appeals from the July 29,

2015 Judgment of Sentence entered in the Allegheny County Court of

Common Pleas after a jury convicted him of charges stemming from three

separate robberies committed over a nine-hour period. Appellant challenges

the trial court’s denial of his Motion to Sever, the denial of his Motion to

Suppress all three victims’ pre-trial identifications, and the weight of the

evidence identifying him as the culprit in two of the robberies. After careful

review, we affirm.



____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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       The relevant factual and procedural history, as gleaned from the

certified record, is as follows.

       Between the hours of 6:30 pm on January 8, 2014, and 3:15 am on

January 9, 2014, Appellant followed three patrons of the Rivers Casino

(“Casino”) as they were leaving the Casino property. He robbed the three

patrons in the parking garage of the Casino or after following them home

from the Casino. Surveillance footage from the Casino captured Appellant’s

and his victims’ movements.

       Appellant accosted his first victim, Ronald Eritano (“Eritano”), at 6:33

pm on the fourth floor of the Casino’s parking garage. Appellant physically

attacked Eritano and threatened to shoot him. Although Eritano did not see

a gun, he did see a steel bar in Appellant’s hand.      Appellant fled without

taking any money when Eritano’s wife began screaming for help. Security

cameras did not capture the actual robbery, but video surveillance tapes

show Appellant exiting his vehicle with the motor still running, walking

towards Eritano, and running back to his vehicle less than a minute later and

fleeing the Casino property at 6:34 pm. Eritano identified Appellant at his

preliminary hearing, and again at trial. N.T., 4/29/15-5/7/15, at 32, 176.1

       Not long after Appellant robbed Eritano and fled the Casino, security

cameras captured Appellant returning in the same vehicle, later determined
____________________________________________


1
  The transcripts of Appellant’s Suppression Hearing and Jury Trial are
contained in a single document that spans multiple days of testimony.



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to be registered to his father, at 8:25 pm.2 At 1:00 am, security cameras

captured a second victim, Thomas Gnipp (“Gnipp”), leaving the same

parking garage. Appellant, in his vehicle, followed directly behind Gnipp as

he left the Casino and drove towards his home. On his way home, Gnipp

noticed that he was being followed. Approximately twenty minutes later, as

Gnipp pulled into his garage, Appellant approached Gnipp and said “Give me

all of your money.       I have gun.”      N.T. at 263-64.   Gnipp gave Appellant

approximately $35.00.          When Appellant demanded more money, Gnipp

sounded the horn of his car, causing Appellant to flee in his car.           Like

Eritano, Gnipp identified Appellant at his preliminary hearing, and again at

trial. N.T. at 92-93, 265-66.

       After fleeing Gnipp’s home, Appellant again returned to the Casino in

the same vehicle at 1:38 am. Appellant gambled for approximately twenty

minutes before returning to his vehicle and spending nearly an hour waiting

in his vehicle in the Casino’s parking garage. At 2:35 am Appellant followed

his third victim, Kaa Fat Liang (“Liang”), as he left the Casino parking

garage.    Liang had approximately $2,600.00 in hundred-dollar bills in his

pocket when he left the Casino. N.T. at 568.

____________________________________________


2
  Appellant used the same car, a light blue 1999 Ford Crown Victoria sedan,
to follow each of his victims and subsequently flee the scene of all three
robberies.    The license plate number of the vehicle is visible in the
surveillance footage of Appellant following his victims in the Casino parking
garage. N.T. at 294.



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       Liang observed Appellant following him from the Casino all the way to

Liang’s daughter’s house.        As Liang exited his vehicle and approached the

front door, Appellant approached him and demanded money.           When Liang

denied having any money, Appellant struck Liang in the face and head with a

steel bar.    Appellant then took the cash from Liang’s pocket and fled the

scene in his car.

       Liang identified Appellant in a photo array and at the preliminary

hearing. N.T. at 58, 61, 333. In addition, the steel bar with Liang’s blood

on it was recovered during a search of Appellant’s vehicle.3

       After attacking Liang, Appellant again returned to the Casino, pulling

into the Casino parking garage at 3:12 am.          Throughout the rest of the

morning, Appellant gambled in the Casino using the money he took from

Liang. Security cameras captured him trading in cash, including twenty-five

one hundred-dollar bills, in exchange for $2,665.00 in Casino chips that

morning. N.T. 482.

       Investigators arrested Appellant the following evening, January 10,

2014, when he returned to the Casino.

       The Commonwealth charged Appellant with three counts of Robbery,

one count of Burglary, and one count of Aggravated Assault. 4 Appellant filed
____________________________________________


3
  Inside the vehicle, Detectives also recovered a money wrapper used by the
Casino to bundle $2,000.00 in currency, as well as clothing consistent with
the clothing worn by Appellant as seen on surveillance footage and as
described by the victims.



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an Omnibus Pretrial Motion seeking, inter alia, to sever the charges for the

three victims and to suppress the three pre-trial identifications: Gnipp and

Eritano’s identifications of Appellant at the preliminary hearing and Liang’s

identification of Appellant in a photo array.         The trial court denied all

relevant portions of the Motion,5 and Appellant elected to proceed by way of

a jury trial.

        On May 7, 2015, the jury found Appellant guilty of all charges.      On

July 29, 2015, the trial court sentenced Appellant to an aggregate term of

ten and one-half to twenty-four years of incarceration, with three years of

consecutive probation.         Appellant filed a Post-Sentence Motion, which the

trial court denied on November 18, 2015.

        Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

        On appeal, Appellant raises four allegations of error, reordered for our

ease of disposition.

        1. Did the trial court err in denying [Appellant’s] Pre-Trial
        Motion to Sever when the charges stemmed from separate
        events, and involved different victims and were three distinct
        criminal episodes?



                       _______________________
(Footnote Continued)
4
    18 Pa.C.S. §§ 3701, 3502, and 2702, respectively.
5
  Not relevant to the instant appeal, the trial court suppressed evidence
seized during the course of a second search of Appellant’s vehicle.



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      2. Did the trial court err in denying [Appellant’s] Pre-Trial
      Motion to Suppress multiple untrustworthy out-of-court
      identifications by all three victims?

      3. Was the       verdict against the weight of the evidence for the
      Robbery of       Ronald Eritano since the testimony regarding
      identification    was inconsistent and the eventual identification
      [was] overly     suggestive to the extent of fatally diminishing its
      credibility?

      4. Was the       verdict against the weight of the evidence for the
      Robbery of        Thomas Gnipp since the testimony regarding
      identification    was inconsistent and the eventual identification
      [was] overly     suggestive to the extent of fatally diminishing its
      credibility?

Appellant’s Brief at 6.

                                 Motion to Sever

      In his first claim, Appellant avers that the trial court erred in denying

his Motion to Sever the offenses because the charges against Appellant

“were different crimes, involved separate incidents with separate victims and

should have been tried separately.” Appellant’s Brief at 16.

      Our standard of review from the denial of a Motion to Sever is well-

settled:

      A motion for severance is addressed to the sound discretion of
      the trial court, and . . . its decision will not be disturbed absent a
      manifest abuse of discretion.          The critical consideration is
      whether the appellant was prejudiced by the trial court's decision
      not to sever. The appellant bears the burden of establishing
      such prejudice.

Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010).

      In Pennsylvania, the joinder of informations is rule-based:

      (A) Standards


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     (1) Offenses charged in separate indictments or informations
     may be tried together if:

         (a) the evidence of each of the offenses would be
         admissible in a separate trial for the other and is capable
         of separation by the jury so that there is no danger of
         confusion; or

         (b) the offenses charged are based on the same act or
         transaction.

Pa.R.Crim.P. 582(A)(1). Additionally, “[t]he court may order separate trials

of offenses or defendants, or provide other appropriate relief, if it appears

that any party may be prejudiced by offenses or defendants being tried

together.” Pa.R.Crim.P. 583.

     In Commonwealth v. Grillo, this Court adopted three factors to

consider in determining whether multiple offenses constitute a single “act or

transaction” under Pa.R.Crim.P. 582(A)(1)(b): “1. the temporal sequence of

events; 2. the logical relationship between the acts; and 3. whether they

share common issues of law and fact.”      917 A.2d 343, 345 (Pa. Super.

2007).

     In the instant case, the trial court found that “[t]he three robberies

constituted one event, beginning and ending in the same location, with the

common goal, to obtain funds to gamble.”          Trial Court Opinion, filed

10/28/16, at 10.   Appellant disputes the trial court’s finding, but fails to

address any of the relevant factors adopted in Grillo.   Appellant’s Brief at

17-18.   Instead, Appellant avers that the three robberies should not be

considered part of a single criminal episode because they occurred in three


                                    -7-
J-S49001-17


different locations and “[o]nly one case was primarily violent in nature[.]”

Id. at 18.

       Using the relevant factors discussed in Grillo, we discern no “manifest

abuse of discretion” in the trial court’s determination that the offenses

charged were part of a single transaction. First, the “temporal sequence of

events” was an uninterrupted spree, over the course of a single evening, in

which Appellant was either committing a robbery, traveling to and from the

robberies, gambling with his ill-gotten gains, or stalking his next victim.

Second, there is a clear “logical relationship” between the three robberies:

Appellant continued to target patrons of the Casino until he obtained enough

funds to continue gambling. Once he did, his spree of robberies came to an

end.   Finally, the three robberies “share common issues of . . . fact[,]”

namely, whether Appellant was the man seen following his victims through

the Casino garage in his vehicle before approaching them in a hooded

sweatshirt and demanding money from them.

       Appellant’s selective emphasis on the location of the final moments of

each crime ignores the broader context of his conduct that night. Appellant,

hidden inside his father’s car, used the Casino parking garage as the hunting

grounds in which he targeted his victims and began stalking his prey.

Although Appellant ultimately followed two of his victims off the Casino

grounds, the evidence shows a continuous course of conduct targeted

towards a single aim: to obtain funds with which to gamble.


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      Finally, the trial court “reviewed the similarities of the three crimes

and concluded that Appellant would not be prejudiced by the consolidation.”

Trial Court Opinion at 10. Appellant also disputes this finding, averring that

the Commonwealth was improperly permitted to “buttress the stronger

identification, and the DNA evidence, [from the Liang Robbery] against the

two substantially weaker identification[s.]” Appellant’s Brief at 21.

      Appellant’s argument is premised on his assertion that “allowing the

joinder of other unrelated robberies caused [Appellant] to be unduly

prejudiced.” Id. The robberies were closely related, however. Moreover,

although Appellant contests the relative strength of the three identifications,

addressed infra, all three victims separately identified Appellant as the man

who robbed them after leaving the Casino.              Circumstantial evidence,

including surveillance footage of Appellant’s father’s car following his victims

shortly before they were robbed, linked Appellant to all three crimes.

Although Pa.R.Crim.P. 583 provides that a trial court “may” order separate

trials for related offenses, we discern no manifest abuse of discretion in the

trial court’s decision not to do so in the instant case.

                    Motion to Suppress Identifications

      In his second issue, Appellant avers that the trial court erred in

denying his Motion to Suppress three pieces of evidence identifying

Appellant as the perpetrator of the instant offenses: Liang’s identification of

Appellant from a photo array, Eritano’s identification of Appellant at the


                                      -9-
J-S49001-17


preliminary   hearing,   and   Gnipp’s   identification   of   Appellant   at   the

preliminary hearing. Appellant’s Brief at 22-29.

     Our well-settled standard of review in an appeal from an order denying

a Motion to Suppress is as follows:

     Our 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
     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, we are bound by these findings and
     may reverse only if the court’s legal conclusions are erroneous.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation

omitted).

     Further, although additional evidence was adduced at trial or in the

preliminary hearing and cited by the parties in their Briefs, our scope of

review is limited to the evidence adduced at the hearing on the Motion to

Suppress. As our Supreme Court recently clarified:

     It is axiomatic that the nature of the record below controls the
     appellate court's scope of review. See In re: One Hundred or
     More Qualified Electors, [] 683 A.2d 283, 287 ([Pa.] 1996).
     For example, when determining whether the evidence is
     sufficient to support a conviction, we look to the evidence
     admitted at trial. See e.g. Commonwealth v. Briggs, [] 12
     A.3d 291, 306 ([Pa.] 2011). We do not look to evidence “of
     record” at other stages of the proceedings, such as sentencing.
     Similarly, in [reviewing a suppression ruling], it is inappropriate
     to consider trial evidence as a matter of course, because it is
     simply not part of the suppression record, absent a finding that
     such evidence was unavailable during the suppression hearing.

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In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).

      At a hearing on a Motion to Suppress, the Commonwealth has the

burden of proving that the identification evidence “was legally obtained.”

Commonwealth v. Enimpah, 62 A.3d 1028, 1031 (Pa. Super. 2013).

      When analyzing the admission of identification evidence, a
      suppression court must determine whether the challenged
      identification has sufficient indicia of reliability. This question is
      examined by focusing on the totality of the circumstances
      surrounding the identification. In deciding the reliability of an
      identification, a suppression court should evaluate the
      opportunity of the witness to see the criminal at the time the
      crime occurred, the witness's degree of attention, the accuracy
      of any description given, the level of certainty when identification
      takes place, and the period between the crime and the
      identification.

Commonwealth v. Sanders, 42 A.3d 325, 330 (Pa. Super. 2012) (internal

quotation marks and citations omitted).

      Where, as here, a defendant avers that a pretrial identification violates

his right to due process, our inquiry is focused on the likelihood of

misidentification. See Commonwealth v. Ransome, 402 A.2d 1379, 1382

(Pa. 1979) (noting that “it 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.”). “[S]uggestiveness in the identification process is a

factor to be considered in determining the admissibility of such evidence, but

suggestiveness alone does not warrant exclusion.”           Commonwealth v.

Bruce, 717 A.2d 1033, 1037 (Pa. Super. 1998) (citation and quotation

omitted).



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      In the instant case, the Commonwealth presented three witnesses at

the hearing on the Motion to Suppress: Trooper Mario Schiavo, Detective

Donald    Pasquarelli,   and   Detective   Frederick   Wright.   Neither   the

Commonwealth nor Appellant submitted the transcript from the preliminary

hearing into evidence, although the parties elicited testimony from the

officers regarding the circumstances of the identifications at issue.      We

address each identification in turn, viewing only the evidence adduced at the

hearing on the Motion to Suppress and in the light most favorable to the

Commonwealth.

      Liang’s Photo Array Identification

      In his Brief to this Court, Appellant avers that the trial court should

have suppressed Liang’s identification of Appellant in a pretrial photo array

because (i) Liang was shown two arrays with Appellant’s photo and could not

identify Appellant in the first; (ii) Liang did not have an adequate

opportunity to observe Appellant’s face; and (iii) Liang’s identification of

Appellant in the second array was “unclear.” Appellant’s Brief at 23.

      Although Liang was shown two photo arrays, each of which contained

a photo of Appellant, and was only able to make an identification from the

second array, the previous failure to identify a defendant positively in a

photo array goes to the weight, not the admissibility, of a subsequent

identification.   Commonwealth v. McIntosh, 476 A.2d 1316, 1320 (Pa.

Super. 1984). Moreover, the Commonwealth introduced evidence explaining


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that Liang’s initial failure to identify Appellant was because the night after

the Robbery, Detective Pasquarelli initially showed Liang a photo array

containing an outdated photograph of Appellant.         N.T. at 58.   Detective

Pasquarelli then prepared a second array with a more recent photograph of

Appellant, and returned to Liang’s home an hour later with the second array.

Id. at 76. Liang identified Appellant from the second array. Id. at 61.

       As to Appellant’s remaining claims, no evidence was adduced at the

suppression hearing to support Appellant’s assertions that it was too dark for

Liang to see Appellant’s face, or that Liang was preoccupied looking for a key

when Appellant approached to rob him.              See Appellant’s Brief at 23

(supporting his argument with references to trial testimony, which is outside

the proper scope of review).           Although Liang acknowledged that it was

difficult for him to see after Appellant struck him in the face with the steel

bar, he explained that he was nonetheless able to recognize Appellant

because both men frequented the Casino. Id. at 190.

       Nor is there any evidence to support Appellant’s vague assertions that

Liang’s identification “was unclear” or somehow tainted by Liang’s use of a

translator.6 To the contrary, Detective Pasquarelli testified that when shown

the second photo array, Liang identified Appellant as the man who robbed
____________________________________________


6
   Liang, whose native language is Chinese, used his son-in-law as a
translator when he spoke with investigators and utilized a court-appointed
translator when testifying in the instant case. N.T. at 57.




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him. Id. at 61. He placed his initials above Appellant’s photo in the array,

and signed his name in Chinese characters directly below Appellant’s photo.

Id.

       Under the totality of the circumstances, we conclude that the

suppression court did not err or abuse its discretion in finding that the photo

arrays shown to Liang were not unduly suggestive. 7 Trial Court Opinion at

11.

       Eritano’s Preliminary Hearing Identification

       As to Eritano’s testimony, Appellant avers that his identification of

Appellant    at   the   preliminary hearing was suggestive, and         that   the

Commonwealth failed to demonstrate that the identification was reliable.

Appellant’s Brief at 22, 25-29.

       At the preliminary hearing, Appellant caused a disruption and drew

attention to himself. N.T. at 107. He was the only person near the bar of

the court who was not a lawyer or a detective, and he was readily

identifiable as a defendant, wearing a red jumpsuit that identified him as an

inmate, handcuffed and in shackles. Id. at 111. We agree with Appellant
____________________________________________


7
  In his Brief to this Court, Appellant argues, for the first time, that the trial
court should have suppressed Liang’s identification of Appellant at the
preliminary hearing. Appellant did not include the preliminary hearing
identification in his Motion to Suppress and this claim is, therefore, waived.
See Appellant’s Omnibus Pretrial Motion, filed 3/9/15, at 6-7;
Commonwealth v. Sanchez, 82 A.3d 943, 978 (Pa. 2013) (“It is a bedrock
appellate principle that issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).



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that the circumstances of the preliminary hearing were undoubtedly

suggestive.         Nevertheless,    “suggestiveness         alone   does    not    warrant

exclusion.” Bruce, supra at 1037.

       In   addressing      the   surrounding      indicia   of   reliability,   Appellant’s

argument,      in   turn,   mischaracterizes       the   testimony        adduced   at   the

preliminary hearing and presents it in the light least favorable to the

Commonwealth.

       However, the evidence from the suppression hearing, viewed in the

light most favorable to the Commonwealth, indicates that Eritano told

investigators that he was able to observe Appellant’s face during the

Robbery. See N.T. at 25. Shortly after the attack, he described Appellant

to investigators as a “light-skinned black male” who stood about five feet six

inches or five feet seven inches tall.8 Id. at 27-28. This description, given

before Eritano saw Appellant at the preliminary hearing, closely matches the

characteristics of Appellant, who concedes that he is “light skinned [and]

5’6” tall[.]” Appellant’s Brief at 28.

       Based on this evidence, we discern no abuse of discretion in the trial

court’s     determination     that   Eritano’s     identification    of    Appellant     was

admissible. We agree with the trial court that the suggestive nature of the

____________________________________________


8
   Although Appellant avers that Eritano described Appellant as “dark
skinned,” Appellant’s Brief at 25, Trooper Schiavo repeatedly testified that
Eritano described his attacker as “light.” N.T. at 25, 27, 28, 29.



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preliminary hearing identification goes to “the weight to be given to that

identification as opposed to its admissibility.” Trial Court Opinion at 10.

       Gnipp’s Preliminary Hearing Identification

       Finally, Appellant avers that the trial court erred in denying his Motion

to Suppress Gnipp’s identification of Appellant at the preliminary hearing. As

discussed supra, we agree with Appellant that the confrontation between

Appellant and his victims at the preliminary hearing was suggestive.

Moreover, as to Gnipp, the suppression hearing record is wholly devoid of

any indicia of reliability supporting the identification.9 We, thus, agree that

the   suppression     court    erred    in     failing   to   suppress   Gnipp’s   pretrial

identification. However, we conclude that the error was harmless.

       “[A]n erroneous ruling by a trial court on an evidentiary issue does not

require us to grant relief where the error was harmless.” Commonwealth

v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (citation omitted). Harmless error

may be found in one of three circumstances:

       (1) the error did not prejudice the defendant or the prejudice
       was de minimis; (2) the erroneously admitted evidence was
       merely cumulative of other untainted evidence which was
       substantially similar to the erroneously admitted evidence; or (3)
       the properly admitted and uncontradicted evidence of guilt was
____________________________________________


9
  What little evidence was adduced at the suppression hearing regarding
Gnipp shows that Gnipp initially told investigators that it was “dim” in the
garage when the assailant approached him from behind to demand money,
and he did not see his assailant’s face. N.T. at 106, 110. Significantly,
Gnipp failed to identify Appellant prior to the suggestive confrontation at the
preliminary hearing. Id. at 108.



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       so overwhelming and the prejudicial effect of the error was so
       insignificant by comparison that the error could not have
       contributed to the verdict.

Id. Specific to suggestive identification evidence, this Court has found that

an improperly admitted identification is harmless error where there is

additional evidence corroborating the identification, and the identifying

witness was cross-examined on the suggestive nature of the identification.

See McIntosh, supra at 1320-21.

       Although the jury in the instant case heard evidence of Gnipp’s

identification of Appellant that occurred at the preliminary hearing, which

evidence should have been suppressed, the jury also witnessed Gnipp’s in-

court identification of Appellant.10           Appellant did not object to Gnipp’s in-

court identification at trial and did not try to preclude the testimony through

a Motion in Limine.11         Thus, the inadmissible identification was “merely

cumulative” of Gnipp’s in-court identification.

       Moreover,     Appellant,    like   the     defendant   in   McIntosh,   supra,

minimized any prejudice by extensively cross-examining Gnipp on the
____________________________________________


10
   At trial, Gnipp testified that there was a light on in the garage and that he
got a “good look” at Appellant’s face. N.T. at 263-64. He denied ever telling
investigators that he had not seen his assailant’s face. Id. at 270.
11
    Had Appellant prevailed on his Motion to Suppress the pretrial
identification, this would not have automatically precluded a subsequent in-
court identification. A separate test governs the admissibility of an in-court
identification following the suppression of an impermissibly suggestive
pretrial confrontation. See, e.g., Commonwealth v. Townsend, 421 A.2d
452, 454 (Pa. Super. 1980).



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suggestive nature of the pretrial identification.           See N.T. at 270-80.

Appellant pointed out to the jury that (i) the initial police report states that

Gnipp did not see Appellant’s face, id. at 270-72; (ii) the robbery occurred

quickly and Appellant approached Gnipp from behind, id. at 272-75; (iii)

Gnipp told investigators that the garage where the robbery occurred was

dimly lit, id. at 277; and (iv) Gnipp failed to identify Appellant prior to the

suggestive confrontation at the preliminary hearing, id. at 276, 278-80.

       Finally, overwhelming circumstantial evidence of Appellant’s guilt

rendered any prejudice insignificant. Surveillance footage from the Casino

showed Appellant, in his father’s light-blue four-door Crown Victoria Sedan,

spot Gnipp as he exited the Casino lobby and walked to his vehicle. 12 Id.

Footage depicts Appellant circling back past Gnipp, pulling into a spot

between Gnipp and the Casino garage’s exit, and then waiting there for two

minutes until Gnipp drives past. Id. at 297, 301, 303. As soon as Gnipp

drives past, Appellant pulls out and follows him out of the Casino garage.

Id. at 301. Cameras then capture him following Gnipp through the Casino

property towards the highway.           Id. at 304.   Gnipp and Appellant left the

Casino property at 1:01 am. Id. at 305.


____________________________________________


12
  Investigators identified Appellant as the driver based on images of the
vehicle’s plates, footage of his face, and the fact that Appellant used his
Casino loyalty rewards card and government identification to make
purchases inside the Casino. Id. at 287.



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     En route home, on the highway, Gnipp noticed a vehicle following him

during the fifteen-minute drive to his residence. Id. at 260. Gnipp arrived

home and pulled around to the garage at the back of his residence, where

Appellant robbed him. Id. at 262. During the robbery, Gnipp sounded his

car horn and scared Appellant away. Id. at 263-64.

     Gnipp’s next-door neighbor, Kathleen Dorben (“Dorben”), testified that

she heard the car horn around 1:15 am. Id. at 240. She looked out the

front of her residence, away from Gnipp’s garage, and saw a man who

appeared to be anxious moving at a fast pace. Id. at 250. The man was

walking towards a car that had not been there when Dorben had returned

home thirty minutes earlier. Id. at 238. The man got into the back seat of

the car and lay down as if hiding. Id. at 240-41. A few minutes later the

man got into the front seat of the car and drove away. Id. Dorben did not

see the man’s face, but described him as wearing a hooded sweatshirt

similar to the clothing described by Appellant’s victims.   Id. at 242.   She

described the car as an older model, light blue, four-door sedan. Id. at 240-

41. When shown a photograph of Appellant’s car at trial, she identified it as

the same make and model as the car she saw the night of the robbery. Id.

at 242.

     Finally, surveillance cameras captured Appellant returning to the

Casino garage in his vehicle at 1:38 am. Id. at 305. This timeline matches

the time required for Appellant to leave the Casino with Gnipp at 1:01 am,


                                   - 19 -
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follow Gnipp for fifteen minutes to his residence, rob him, then hide for a few

minutes in his vehicle, and drive fifteen minutes back to the Casino. When

Appellant returned to the Casino, he had enough cash in his possession to

play table games for approximately twenty minutes before returning to the

parking garage to look for his next victim.

      Based on the foregoing, we conclude that the suppression court’s error

was harmless.

                          Weight of the Evidence

      Appellant’s final two claims challenge the weight of the evidence

identifying him as the assailant in the Robbery of Eritano and the Robbery

and Burglary of Gnipp. Appellant’s Brief at 30-37.

      A challenge to the weight of the evidence concedes that there was

sufficient evidence to sustain the verdict. Commonwealth v. Widmer, 744

A.2d 745, 751 (Pa. 2000). For that reason, the trial court need not view the

evidence in the light most favorable to the verdict winner, and may instead

use its discretion in determining whether the verdict was against the weight

of the evidence. Id.

      Since the trial court judge was present for the trial and heard the

evidence presented, this Court “will give the gravest consideration” to the

determinations made by the trial judge as to whether the verdict was

against the weight of the evidence so that a new trial should be granted in

the interest of justice. Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.


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Super. 2015).    Consequently, appellate review of a weight claim solely

assesses whether the trial court judge committed an abuse of discretion in

determining whether the verdict was against the weight of the evidence. Id.

      Challenges to a trial court’s determination that the jury’s verdict is not

against the weight of the evidence is one of the least assailable reasons for

granting or denying a new trial.       Id.    Furthermore, “[i]n order for a

defendant to prevail on a challenge to the weight of the evidence, the

evidence must be so tenuous, vague and uncertain that the verdict shocks

the conscience of the court.” Id. (quotation marks and citation omitted).

      The substance of Appellant’s argument supporting his weight challenge

is an assertion that the victims’ identification testimony is “inconsistent” and

based on “overly suggestive” circumstances. Appellant’s Brief at 31-32, 33.

      The trial court considered Appellant’s weight claims, and concluded:

      The verdict was not against the weight of the evidence. Video
      surveillance corroborated Eritano’s in-court identification of
      Appellant. According to the video, Appellant and the Eritanos
      were the only people present on the fourth floor of the garage at
      [the time of the robbery.] Appellant is seen in the video backing
      up his vehicle to leave his parking space but then pulling forward
      again into his space when he sees the Eritanos. Appellant exits
      his vehicle, leaves his engine running, and walks over to the
      Eritanos. Twenty or thirty seconds later, Appellant runs back to
      his car and exits the Casino. In addition, Eritano stated at trial
      that he was one hundred percent certain that Appellant was his
      assailant. The metal bar Eritano described was recovered from
      Appellant’s car. . . . This combination of evidence does not shock
      one’s conscience to the point that a new trial must be given for
      right to prevail.

      Lastly, Appellant alleges that the verdicts of guilty for the
      [R]obbery and [B]urglary of Gnipp were against the weight of

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      the evidence, again based on inconsistent and suggestive
      identification. [At trial,] Gnipp testified that he was unable to
      identify anyone from the photo array the police showed him but
      was able to identify Appellant at the [P]reliminary [H]earing.
      Gnipp stated it was easier for him to identify Appellant in person
      instead of from a two[-]dimensional image. Despite Appellant
      appearing at the [P]reliminary [H]earing in a red Allegheny
      County Jail jumpsuit, Gnipp explained that he was able to
      identify him because he saw him for the first time since the
      incident in the flesh. Gnipp’s identification is also supported by
      circumstantial evidence, including the Casino video and a
      neighbor’s testimony of hearing a car horn, looking out a
      window, seeing a vehicle similar to Appellant’s at the crime
      scene and observing a man, alone, engage in suspicious
      behavior, specifically hiding in the back seat for several minutes
      before getting in the driver’s seat and leaving the area. The
      jury’s verdict does not shock one’s conscience.

Trial Court Opinion at 12-13.

      Having given the trial court’s findings “the gravest consideration,” as

we must, we conclude that the trial court did not abuse its discretion when

determining that the verdict was not “so tenuous, vague and uncertain” as

to be against the weight of the evidence. Talbert, supra at 546. In doing

so, we incorporate our discussion, supra, of the circumstantial evidence

supporting the identification of Appellant as Gnipps’ assailant.

      Judgment of Sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/6/2017




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