J-S46029-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

DERRIX SMITH

                            Appellant              No. 2143 MDA 2013


            Appeal from the Judgment of Sentence October 18, 2011
             In the Court of Common Pleas of Lackawanna County
              Criminal Division at No(s): CP-35-CR-0002713-2010


BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                       FILED AUGUST 22, 2014

        Derrix Smith appeals from the judgment of sentence entered in the

Court of Common Pleas of Lackawanna County, following his conviction by a

jury for burglary,1 criminal conspiracy to commit burglary,2 criminal

trespass,3 theft by unlawful taking,4 criminal conspiracy to commit theft by

unlawful taking,5 and criminal conspiracy to commit the offense of receiving

stolen property.6 After review, we affirm.

____________________________________________


1
    18 Pa.C.S. § 3502(a).
2
    18 Pa.C.S. § 903(c).
3
    18 Pa.C.S. § 3503(a)(1)(ii).
4
    18 Pa.C.S. § 3921(a).
5
    18 Pa.C.S. § 903(c).
(Footnote Continued Next Page)
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        On June 26, 2010, the victim, Donna Gibbs, was alone in her



Doyle, a young lady who Gibbs thought of as a niece, and who stayed with

Gibbs regularly. Gibbs told Wiley that Doyle was not there, and Wiley left.

Five minutes later, two men burst into the apartment. The shorter of the

two men held Gibbs down in the living room while the taller man rummaged




saving money to buy a car, although the taller man was unable to find it.

The men took $250 that was on the coffee table, and left the apartment.

Although their faces were partially covered, Gibbs could see their eyes and

hear their voices.

        After the incident, Gibbs was sure she had previously met the taller

man, but was initially unable to remember his name. She later recalled that



apartment.     When Gibbs asked Doyle who the man she brought to the



learning his name, Gibbs reported it to the police.   The police prepared a




                       _______________________
(Footnote Continued)


6
    18 Pa.C.S. § 903(c).




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Smi

                                                  -trial motion to suppress the

photographic array, and admitted it into evidence at trial.      On June 15,

2011, the jury convicted Smith of burglary, criminal trespass, criminal

conspiracy to commit burglary, criminal conspiracy to commit theft by

unlawful taking, theft by unlawful taking, and criminal conspiracy to commit

the offense of receiving stolen property. The trial court sentenced Smith to



followed by ten years of special probation.       After the trial court denied

              -sentence motions, Smith filed this appeal.

      Smith raises two issues on appeal. First, he argues the photographic

array was overly suggestive, and, therefore, the trial court erred when it did

not suppress it.    Second, he argues that without the photographic array,

there was insufficient evidence to sustain his conviction. We reject both of

these claims.



suggestive. When reviewing a denial of a motion to suppress, our inquiry is



the   legal     conclusions   drawn

Commonwealth v. Gray, 896 A.2d 601, 603 (Pa. Super. 2006).                 We

employ the following standard when determining whether a photo lineup is

unduly suggestive:

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      Whether an out of court identification is to be suppressed as
      unreliable, and therefore violative of due process, is determined
      from the totality of the circumstances. Suggestiveness in the
      identification process is a factor to be considered in determining
      the admissibility of such evidence, but suggestiveness alone
      does not warrant exclusion. Identification evidence will not be
      suppressed unless the facts demonstrate that the identification
      procedure was so impermissibly suggestive as to give rise to a
      very substantial likelihood of irreparable misidentification.
      Photographs used in line-ups are not unduly suggestive if the

      the people depicted all exhibit similar facial characteristics.

Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011)

(quotation marks and citations omitted).

      In Commonwealth v. Beverly, 547 A.2d 766, 767 (Pa. Super. 1988),

the appellant first argued that the use of a police lineup to identify him was

improper because the participants were not wearing stocking masks, as he

requested.

because the witness had seen the appellant prior to his commission of the

crime, and thus could recognize him independently of the lineup, any

problems with the lineup would not have been reversible error.            Id.   This



should have suppressed a photographic array used by a different witness to

identify the appellant.     Id.   The claim was essentially that because the

witness had failed to identify the appellant from a photographic array she

saw shortly after the crime, and which was subsequently lost, her

identification   from   a   second   photographic   array   should      have    been

suppressed. Id. at 767-68. Again, this Court based its holding on the fact



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on her observation of him during the robbery and as a person she knew from

                Id. at 768.

       Here, Gibbs had a basis for identifying Smith independently of the

photographic array. She recalled having seen and met Smith prior to June

26, 2010, on one or two other occasions.            N.T. Trial, 6/13/11, at 55, 62.

                                                  hose previous occasions. Id. 45-

46.   Assuming, arguendo, the photographic array was unduly suggestive,

this would still not amount to reversible error, because Gibbs had an

independent basis for identification.          See Beverly, 547 A.2d at 767.   We

therefore need not address the issue of whether the photographic array was

unduly suggestive.7

       Next, Smith argues that there was insufficient evidence to support the

guilty verdicts without the use of the photographic array.         In evaluating a

challenge to the sufficiency of the evidence, we must determine whether,

viewing the evidence in the light most favorable to the Commonwealth as

verdict winner, together with all reasonable inferences therefrom, the trier of

fact could have found that each and every element of the crime charged was


____________________________________________


7
  Smith argues that because Gibbs recognized the taller intruder and was
later able to identify him by name, his appearance in the photographic array

come to the opposite conclusion, that this would tend to bolster the




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established beyond a reasonable doubt.     Commonwealth v. Burno, __

A.3d __, 2014 WL 2722758, at *10 (Pa. June 16, 2014). The sufficiency of



circumstantial rather than direct so long as the combination of the evidence



Commonwealth v. Swerdlow, 636 A.2d 1173, 1176 (Pa. Super. 1994)

(citing Commonwealth v. Hardcastle, 546 A.2d 1101, 1105 (Pa. 1986)).

See also Commonwealth v. Chmiel, 639 A.2d 9 (Pa. 1994).



without the photographic array, there was insufficient evidence for the

Commonwealth to have sustained its burden of proof. As we have concluded




     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




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