J-S30032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellee

                        v.

EDWARD SCOTT

                             Appellant                No. 2286 EDA 2013


               Appeal from the Judgment of Sentence July 2, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0006350-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                              FILED JULY 29, 2015

        A jury found Edward Scott guilty of robbery,1 conspiracy,2 robbery of a

motor vehicle,3 and possession of an instrument of crime.4 The trial court

sentenced Scott to a total of 10-20 years’ imprisonment followed by 10

years of probation.

        In this timely direct appeal, Scott argues that the trial court erred in

denying his request for an alibi instruction and his motion to suppress the


____________________________________________


1
    18 Pa.C.S. § 3701.
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 3702.
4
    18 Pa.C.S. § 907.


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complainant’s identification testimony.    Both Scott and the trial court

complied with Pa.R.A.P. 1925. We affirm.

     The trial court summarized the evidence as follows:

           On May 18, 2011, William Jackson drove his
           girlfriend Jessica Blair and her son to her home.
           Jackson was driving his milk-white, 1976 Chevrolet
           Impala, which was customized with distinctively
           large 26” tires and rims. When Jackson pulled up to
           Blair’s home at 1379 Narragansett Street in
           Philadelphia, he double-parked his vehicle and
           walked Blair and her son to the front door. Blair and
           Jackson talked on the porch for several minutes.
           During their conversation, Jackson noticed two men
           — defendant Scott and co-defendant Williams —
           walking down the street. Williams and Scott stopped
           walking when they reached Jackson’s car, and then
           stood there talking for approximately five minutes.
           They were approximately ten to fifteen feet from
           Jackson, who was on the porch. Jackson ended his
           conversation with Blair and then walked down the
           porch steps toward his vehicle.

           As soon as Jackson reached the bottom of the steps,
           [] Williams approached Jackson and pulled out a
           black and silver semi-automatic handgun. [] Scott
           followed close behind. Williams pointed the gun in
           Jackson’s face and told him to get on the ground, lay
           face-down on his stomach, and hand over his
           money. Jackson complied by [lying] on the ground.
           Williams then put the gun to the center of the back
           of Jackson’s head. [] Scott was standing directly
           behind Williams. Williams removed a wallet from
           Jackson’s back pocket, and told [] Scott to jump in
           Jackson’s car and drive off. [Scott] stepped over
           Jackson, entered Jackson’s vehicle, and drove
           toward Stenton Avenue. Even though he was [lying]
           on the ground, Jackson observed [Scott] drive
           Jackon’s Impala down Narragansett Street and turn
           right onto Stenton Avenue. [] Williams told Jackson
           not to move. Williams then walked away in the same


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          direction as [] Scott, and then turned right on
          Stenton Avenue.

          After [] Williams walked away, Jackson got up off the
          sidewalk and walked inside Blair’s house. Once he
          entered the house, Jackson called police using Blair’s
          phone; the police arrived a few minutes later.
          Jackson provided descriptions of both men: ‘the one
          gentleman with the gun had on a dark gray hoodie
          and dark pants, light-skinned, goatee, kind of
          stocky. The other person that drove off in the vehicle
          was dark-skinned, slim, maybe a little bit taller.’
          Jackson testified that he remembered the faces ‘very
          well’ and that there were several street and porch
          lights on in the area. Police conveyed over police
          radio the descriptions of both defendants and a
          description of the stolen car.

          Sergeant Daniel Ayres and Officer Michael Bransfield
          were responding to the police radio call when they
          passed Jackson’s distinctive Impala two blocks away
          from the scene of the crime at the corner of
          Crittenden and Price. The officers observed the
          Impala parked poorly, with the headlights and
          interior lights left on, and the keys on the ground in
          the middle of the street outside of the driver’s side
          door. [] Scott was near the Impala walking away
          from the driver’s side door of the car. The Officers
          stopped      [Scott]     for   investigation   pending
          identification by Jackson.

          Officers Justin O’Brien and Fred MacConnell stopped
          [] Williams on the 6500 block of Wister Street, just
          one block from the scene of the crime. Williams was
          walking down Wister Street looking over his
          shoulder. When the Officers turned their car around,
          Williams had stopped walking and was now sitting on
          the steps of a house along Wister Street. Williams
          claimed that he lived there when asked by Officer
          O’Brien, but he did not know the address of the
          house or the name of the street. The Officers held
          Williams for investigation pending identification by
          Jackson. Officers Brandon Bryant and Kevin Cahill
          transported Jackson to a total of three locations to

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            make possible identifications. At the first location,
            Jackson identified the Impala stopped by Officers
            O’Brien and MacConnell as his customized Impala.
            He then positively identified [] Scott as the individual
            who stole his Impala. Jackson testified that [Scott]’s
            facial hair stood out, and he remembered ‘his face,
            dark skin, his height, his stature, even the clothing
            he had on.’ At the second location, Jackson was
            provided the opportunity to make an identification of
            someone the police had stopped in the area. Jackson
            told the officers that this second person was not
            involved in the robbery. Jackson was then taken to a
            third location, where he identified [] Williams as the
            gunman who pointed the gun at his head and took
            his wallet. Jackson testified that he would not forget
            Williams’s face and stature.        Approximately ten
            minutes passed from the time he was robbed until he
            identified [] Scott and Williams. Jackson testified that
            he had no doubt about his identifications of [] Scott
            and Williams and that he would never forget the day
            that he was robbed.

Pa.R.A.P. 1925(a) Opinion, at 1-4 (citations omitted).

      Scott raises two issues in this appeal:

            1. Did not the lower court err by refusing to instruct
            the jury as to [Scott]’s alibi defense, when [Scott]
            had presented unequivocal alibi testimony that [he]
            was elsewhere at the time of the alleged crime, such
            that [his] evidence may have been sufficient to raise
            a reasonable doubt as to his guilt?

            2. Did not the lower court err in denying [Scott]’s
            motion to suppress identification testimony, where
            the circumstances of the out-of-court identification
            by complainant William Jackson were unduly
            suggestive, and where the in-court identification did
            not have an independent origin sufficient to purge
            the primary taint of the out-of-court identification?

Brief For Appellant, p. 4.




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      Scott first argues that the trial court erred by denying his request for

an alibi instruction because he presented evidence that he was watching a

basketball game with his aunt at the time of the robbery. When giving jury

instructions, the trial court has broad discretion in phrasing the instructions

so long as the instructions given “clearly, adequately, and accurately” reflect

the law. Commonwealth v. Lesko, 15 A.3d 345, 397 (Pa.2011).                When

reviewing the trial court’s decision not to give a jury instruction, we examine

the charge in its entirety to determine if it accurately and fairly set forth the

law to the jury.   Commonwealth v. Ogrod, 839 A.2d 294, 331-32 (Pa.

2003). There is no error in failing to give a specific charge when the trial

court provides a full and complete charge.      Commonwealth v. Vincens-

Rodriguez, 911 A.2d 116, 120 (Pa.Super.2006).           We will reverse a trial

court’s instruction only when it abuses its discretion or commits an error of

law. Commonwealth v. Galvin, 985 A.2d 783, 798-99 (Pa.2009).

      An alibi is “a defense that places the defendant at the relevant time at

a different place than the scene involved and so removed therefrom as to

render it impossible for him to be the guilty party.”      Commonwealth v.

Mikell, 729 A.2d 566, 570 (Pa.1999). The purpose of an alibi instruction is

to ensure that the jury understands where the burden of proof lies. There is

a danger that the jury will incorrectly view the defendant as accepting the

burden of proof of demonstrating that the alibi is true, when in fact the

burden lies, as always, with the Commonwealth to prove guilt beyond a


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reasonable doubt. The alibi instruction is given to correct any such

misapprehension.        Commonwealth v. Collins, 702 A.2d 540, 544-45

(Pa.1997).      An alibi instruction is necessary only in cases where a

defendant’s evidence places him at the relevant time at a different place

than the scene involved and so far removed therefrom as to render it

impossible for him to be the guilty party. Id. at 545.

        Scott based his request for an alibi instruction on the testimony of his

aunt, Brenda Scott (“Brenda”), with whom Scott was living at the time of the

crime. N.T. 2/6/13, Vol. 3, at 9. Brenda testified that she is a big fan of the

Boston Celtics, a professional basketball team, and on the night of the

robbery, May 18, 2011, she was in her bedroom watching the Celtics play in

the “Final Four.” Id. at 10, 16. “The only time I watch basketball,” Brenda

stated, “is when the Celtics are playing; the Celtics or the [Philadelphia

76ers].”    Id. at 18.     Scott is also a big Celtics fan, Brenda said, and he

stopped in her bedroom during the game between 10:35 p.m. and 10:55

p.m., a time period close to or overlapping with the robbery. Id. at 11, 16,

19. Brenda eventually conceded, however, that the Celtics were not playing

on the night of May 18th. Id. at 18. The only game that night was between

the Dallas Mavericks and the Oklahoma Thunder.         Id. In fact, the Celtics

had been eliminated from the NBA5 playoffs on May 11, 2011, one week

____________________________________________


5
    National Basketball Association.



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earlier, and the 76ers had been eliminated from the playoffs on April 27,

2011, almost three weeks earlier.6             Thus, Brenda’s testimony was not

sufficient to place Scott at a different place than the scene of the crime at

the relevant time.7       Cf. Commonwealth v. Hall, 867 A.2d 619, 636-37

(Pa.Super.2005) (in murder trial, trial counsel not ineffective for failing to

call church deacon as alibi witness, where deacon testified that defendant

went to church on both Good Friday and Easter Sunday, evidence

established victim was killed either on Saturday before Easter or before

Easter Sunday church service, and thus deacon’s testimony did not isolate

defendant from all possible interaction with victim and crime scene).

       The two decisions relied upon by Scott -- Commonwealth v. Pounds,

417 A.2d 597 (Pa.1980), and Commonwealth v. Roxbury, 602 A.2d 826

(Pa.1991) – are easily distinguishable.          In Pounds, the defendant was

charged with committing a murder that took place between 6:00 a.m. and

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6
  We take judicial notice of these elimination dates under Pa.R.E. 201,
because they are listed on multiple websites (e.g., basketball-reference.com,
nba.com, espn.go.com, wikipedia.org/wiki/2011_NBA_playoffs) whose
accuracy on this subject cannot reasonably be questioned.
7
  Further undermining Brenda’s testimony is her claim that she was watching
the Celtics play in the “Final Four”. The “Final Four” virtually always refers
to the semifinals in the annual NCAA Men's Division I Basketball
Championship, one of the most popular events in American sports. It less
frequently refers to the semifinals in the annual NCAA Women's Division I
Basketball Championship.        On the other hand, other than Brenda’s
testimony, we know of no occasion in which this phrase has been used in
connection with professional basketball games.



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7:00 a.m. The defendant testified that he was asleep in his car at a different

location from the previous evening until sometime before 8:00 a.m. on the

morning of the murder and drove to his mother’s house.          Our Supreme

Court held that the defendant’s testimony entitled him to an alibi instruction,

because it placed him at locations distinct from the crime scene during the

relevant time period.     Id., 417 A.2d at 602.   Similarly, in Roxbury, our

Supreme Court held that a new trial was necessary where the trial court

denied the defendant’s request for an alibi instruction despite his testimony

that he was one-half mile from the crime scene at the time of the murder.

Here, in contrast, Brenda’s testimony did not isolate Scott from the crime

scene at the time of the robbery.          Her testimony identified Scott’s

whereabouts on an entirely different day (possibly May 11, 2011).

      In his second argument on appeal, Scott contends that the trial court

improperly denied his motion to suppress William Jackson’s identification at

the scene of Scott’s arrest because the procedure was overly suggestive.

The 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.

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             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).

       A trial court should evaluate the totality of the circumstances when

reviewing    a   motion   to   suppress     an   out   of     court   identification.

Commonwealth v. Freeman, 827                A.2d 385        (Pa.2003).     Although

suggestiveness in the identification process is relevant, “suggestiveness

alone does not warrant exclusion.” Commonwealth v. Fulmore, 25 A.3d

340, 346 (Pa.Super.2011). The court must also examine 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. Commonwealth v. Wade, 33 A.3d

108, 114 (Pa.Super.2011). The court must weigh these factors against the

corrupting effect of any suggestiveness. Id. The court should not suppress

identification evidence unless the facts demonstrate that the identification

procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” Fulmore, 25 A.3d at

346.

       The purpose of a “one on one” identification is to enhance reliability by

reducing the time elapsed after the commission of the crime.             Wade, 33

A.3d at 114. Absent some special element of unfairness, a prompt “one on

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one” identification is not so suggestive as to give rise to an irreparable

likelihood of misidentification. Id.

      In this case, there was no special element of unfairness that rendered

the one-on-one confrontation unduly suggestive.         The evidence at the

suppression hearing established that the victim, Jackson, had a good

opportunity to observe Scott prior to and at the time of the crime. Jackson

was standing on his girlfriend’s porch when he saw Scott and Williams walk

down the street in his direction. Scott and Williams stopped near where

Jackson had parked his car, within ten feet of where Jackson was standing.

For the next ten minutes, Scott and Williams stood there while Jackson

continued to speak with his girlfriend. Although it was nighttime, there was

lighting from street lights and the porch light. N.T. 2/4/13, at 15-17, 29.

      After ten minutes passed, Jackson stepped off of his girlfriend’s porch

and walked toward his car. Scott and Williams confronted him, and Jackson

had a face-to-face view of Scott for approximately one minute. Williams

pointed a gun at Jackson and told him to get onto the ground. Williams

asked Jackson for his money and his wallet. As Jackson lay on the ground,

he was only a few feet from Scott and could see his face. Eventually,

Williams told Scott to get into Jackson’s car and drive away. Williams then

walked away. Jackson explained that a number of minutes passed from the

time that Scott and Williams confronted him on the street until Scott finally

drove off. During the encounter, Jackson had ample opportunity to observe


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Scott and observed that he had “[s]light” facial hair, brown skin, was about

5’11”, slim, and was wearing a black “hoodie” and dark jeans. N.T. 2/4/13,

at 16-21, 38.   Jackson’s observations during the robbery were at least as

reliable as other cases in which we have found the victim’s observations

reliable.   See, e.g., McElrath v. Commonwealth, 592 A.2d 740, 743

(Pa.Super.1991) (victim had sufficient opportunity to observe appellant so

as to make reliable out-of-court identification even though she observed him

for only five seconds); Commonwealth v. Bell, 562 A.2d 849, 851-52

(Pa.Super.1989) (victim had sufficient opportunity to observe appellant and

make out-of-court identification even though he observed him only in

silhouette for a few seconds).

      Nor was anything at the scene of Scott’s arrest improperly suggestive.

After the robbery, Jackson telephoned the police, who arrived within a

matter of minutes. Police officers immediately transported Jackson a couple

of blocks away to where they had stopped Scott. Scott was not handcuffed

but was sitting inside a police car. Jackson positively identified Scott as the

person who had driven away in his car. Jackson clearly remembered Scott’s

face from the robbery and had no doubt “at all” about his identification,

which took place just a few minutes after the robbery. N.T. 2/4/13, at 23-

26, 36, 41, 47-48, 52-53.        The police then drove Jackson to another

individual (not Scott or Williams) that they had stopped. Jackson stated that

this person was not involved in the robbery, demonstrating that he was not


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simply identifying anyone whom the police presented to him. Finally, the

police drove Jackson to a third location, where they had stopped Williams.

There, Jackson positively identified Williams as the gunman. Id. at 27-28,

36, 57-58, 63. This evidence is at least as sturdy as other decisions in which

we held that the identification of suspects in custody was admissible. See

Commonwealth        v.    Moye,       836   A.2d     973,    976-78   (Pa.Super.2003)

(identification was not unduly suggestive, even though it took place while

defendant was handcuffed and was lone person inside police van, and even

though prior to the identification, police told witnesses whose house had just

been burglarized that they had person for witnesses to identify who had

been   found    running    down       the   street    looking    sweaty    and   tired);

Commonwealth v. Brown, 611 A.2d 1318, 1320-21 (Pa.Super.1992)

(victim’s identification of defendant at hospital less than two hours after

assault not impermissibly suggestive, even though victim saw weapon used

in the crime prior to making identification and defendant was in handcuffs at

time of identification); McElrath, 592 A.2d at 742-43 (victim’s one-on-one

identification of defendant who was in police custody not unduly suggestive,

even though the victim noticed defendant’s gun before focusing on his face

at identification procedure, where victim had observed defendant for

approximately five seconds during crime and made identification within

thirty minutes of incident); Bell, 562 A.2d at 851-52 (victim’s one-on-one

out-of-court   identification   not    impermissibly        suggestive,   even   though


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defendant was handcuffed in back of police van and victim had not gotten

good look at his attacker); Commonwealth v. Walker, 501 A.2d 1143,

1149-50 (Pa.Super.1985) (robbery victim’s one-on-one identification of

defendant fifteen minutes after crime and while defendant was in custody

not unduly suggestive).

      Scott claims that Jackson’s identification at the scene of the arrest was

suggestive because it took place after Jackson saw that the police had

recovered his vehicle.     Jackson, however, testified at the suppression

hearing that minutes after the robbery occurred, he positively identified

Scott as the person who drove away in his vehicle because he remembered

Scott’s face and had no doubt “at all” about the identification. In addition,

police officers showed Jackson three different individuals, and he identified

the first and third individuals as the culprits but said that the second

individual was not involved. This demonstrates that Jackson did not identify

Scott because of the alleged suggestiveness of the circumstances but

because he truly recognized Scott as the perpetrator.

      Therefore, the trial court properly denied Scott’s motion to suppress

Jackson’s out-of-court identification.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/29/2015




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