J-S25010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

JARON BRIMAGE,

                            Appellant                No. 1151 WDA 2014


             Appeal from the Judgment of Sentence March 6, 2014
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0012956-2012


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*


MEMORANDUM BY BENDER, P.J.E.:                          FILED JUNE 22, 2015

        Appellant, Jaron Brimage, appeals from the judgment of sentence of

30 to 60 months’ incarceration, followed by 5 years’ probation, imposed

after a jury convicted him of robbery (serious bodily injury) and conspiracy

to commit robbery. Appellant solely challenges the weight of the evidence

to sustain his convictions. After careful review, we affirm.

        Appellant was convicted of the above-stated offenses following a jury

trial on September 18 and 19, 2013. On March 6, 2014, he was sentenced

to the aggregate term stated supra. Appellant filed a timely post-sentence

motion challenging, inter alia, the weight of the evidence to sustain his

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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robbery and conspiracy convictions.           After conducting a hearing on

Appellant’s motion, the trial court denied it on June 19, 2014.         Appellant

filed a timely notice of appeal, as well as a timely Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.         Herein, Appellant presents

one issue for our review:

      I.      Did the trial court abuse its discretion in denying the post[-
              ]sentence motion that the verdict was against the weight
              of the evidence insofar as no physical evidence tied
              [Appellant] to the crimes, and the identification testimony
              of the alleged victim, who was the only eyewitness, was
              unreliable due to the short period of time during which he
              observed the perpetrators, that his perceptions were
              impaired by stress and a head injury, and his attention
              was focused on the weapon, and the on-scene
              identification procedure was highly suggestive?

Appellant’s Brief at 5 (unnecessary capitalization omitted).

      To begin, we note that,

           [t]he weight of the evidence is exclusively for the finder of
           fact who is free to believe all, part, or none of the evidence
           and to determine the credibility of the witnesses. An
           appellate court cannot substitute its judgment for that of
           the finder of fact. Thus, we may only reverse the lower
           court's verdict if it is so contrary to the evidence as to
           shock one's sense of justice. Moreover, where the trial
           court has ruled on the weight claim below, an appellate
           court's role is not to consider the underlying question of
           whether the verdict is against the weight of the evidence.
           Rather, appellate review is limited to whether the trial
           court palpably abused its discretion in ruling on the weight
           claim.

      Commonwealth v. Hunzer, 868 A.2d 498, 506-507 (Pa.
      Super. 2005), appeal denied, 584 Pa. 673, 880 A.2d 1237
      (2005). “A motion for new trial on the grounds that the verdict is
      contrary to the weight of the evidence, concedes that there is
      sufficient evidence to sustain the verdict. Thus, the trial court is

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      under no obligation to view the evidence in the light most
      favorable to the verdict winner.” Commonwealth v. Rossetti,
      863 A.2d 1185, 1191-1192 (Pa. Super. 2004), appeal denied,
      583 Pa. 689, 878 A.2d 864 (2005).

Commonwealth v. Lewis, 911 A.2d 558, 565-566 (Pa. Super. 2006).

      Here, Appellant contends that the jury’s verdict was contrary to the

weight of the evidence because the verdict was based primarily on an

unreliable identification by the victim, Monte Austin. Appellant argues that

Mr. Austin’s identification was not credible because he only observed the

perpetrators for a brief time, “he could only describe their clothing and

relative height,” and the on-scene identification was suggestive where

Appellant “was handcuffed and surrounded by uniformed police officers.”

Appellant’s Brief at 14, 19. Appellant also claims that the jury should have

discredited Mr. Austin’s identification because there was no physical

evidence corroborating it. Id. at 19.

      In rejecting Appellant’s weight-of-the-evidence challenge, the trial

court first discussed Mr. Austin’s demeanor and testimony at trial, as

follows:

           The primary witness against [Appellant] was the victim,
      Mr. Monte Austin. It was clear to all involved in the case that
      Mr. Austin suffers from some mental disabilities.               His
      employment through Achieva, a non-profit that serves and
      supports individuals with disabilities, and his involvement with
      Mercy Behavior Health, confirm this fact. Despite his difficulties,
      Mr. Austin provided clear, consistent testimony, which the jury
      apparently believed given its verdict.




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           Mr. Austin testified that on September 21, 2012[,] at 9:45
     p.m., he exited a bus at a corner store on Race Street in the
     Homewood section of the City of Pittsburgh. He had just finished
     his work as a janitorial cleaner at Achieva. Mr. Austin went to
     the store, and then he headed home. As he was walking home,
     he was approached by two (2) men in hooded sweatshirts, one
     gray and one red. Neither man had his face covered. The men
     directed Mr. Austin to put his “hands up.” Mr. Austin complied
     because the man in the gray hooded sweatshirt, whom Mr.
     Austin identified as [Appellant], had a gun, which he pointed at
     Mr. Austin’s head.


           After Mr. Austin put his hands in the air, the man in the
     red hooded sweatshirt locked his hands behind his head, while
     [Appellant] dug through his pockets. [Appellant] removed $17,
     [Mr. Austin’s] wallet, his identification and his Connect Card (bus
     pass) from Mr. Austin’s pockets. As the men were leaving,
     [Appellant] struck Mr. Austin in the head with the gun, causing
     him to bleed, and then took his bag of snacks that he had
     purchased at the store. As the men walked away, they were
     giggling.


            Mr. Austin went straight home after this incident, and he
     called the police as soon as he arrived home. Mr. Austin
     described his assailants during the 911 call to the police, stating
     that both were black men and that the one with the red hooded
     sweatshirt was taller than the one with the gray hooded
     sweatshirt. The police arrived at [Mr. Austin’s] home within five
     (5) to ten (10) minutes, and Mr. Austin provided the same
     description of his assailants.       Officer Miller of the City of
     Pittsburgh Police Department transmitted Mr. Austin’s description
     of his assailants to other police officers working the area. Within
     five (5) minutes of broadcasting the description of the actors,
     Officer Miller was informed that his colleagues had detained two
     (2) men matching the description. Officer Miller returned to Mr.
     Austin’s home, which he had just left, and requested that Mr.
     Austin accompany him to attempt to identify the actors. Mr.
     Austin travelled in Officer Miller’s police vehicle to a location a
     few blocks from Mr. Austin’s home, where two (2) suspects,
     including [Appellant] were sitting on a low wall. As soon as
     Officer Miller asked Mr. Austin if the two (2) were the persons
     who robbed him, [Mr. Austin] indicated that they were. Mr.


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     Austin did not hesitate at all in identifying [Appellant] and his co-
     Defendant.


            At the time of the identification of [Appellant] by Mr.
     Austin, [Appellant] was wearing a gray hooded sweatshirt. The
     second man at the scene was wearing a red hooded sweatshirt.
     The man wearing the red hooded sweatshirt was significantly
     taller than [Appellant]. Officer Miller retrieved a Connect Card at
     the location were the two (2) actors were identified by Mr.
     Austin. The Connect Card was located only one (1) foot from
     where [Appellant] and the co-Defendant were sitting on the low
     wall. Officer Miller presented that Connect Card to Mr. Austin,
     who identified it as his….


Trial Court Opinion (TCO), 10/23/14, at 2-5 (unnumbered; citations to the

record omitted).

     The trial court then went on to explain why it denied Appellant’s claim

that the jury’s verdict was contrary to the weight of the evidence. The court

stated:

           [Appellant’s] challenge to the weight of the evidence
     should be rejected. The jury’s verdict turned on an assessment
     of the credibility of the witnesses, an assessment that was
     unfavorable to [Appellant], given that he was convicted of these
     charges.     During trial, defense counsel cross-examined Mr.
     Austin at length about his identification of [Appellant], as well as
     the facts of the incident.      Additionally, during her closing
     argument, defense counsel raised the primary question that is
     being raised on appeal, namely, that the identification of
     [Appellant] by Mr. Austin was based on limited observations and
     descriptions. It was the jury’s province whether to accept or
     reject the issues and questions raised by defense counsel. That
     the jury chose to reject the defense attacks on the victim’s
     credibility does not support an argument that the verdict was
     against the weight of the evidence. To put it simply, the jury
     believed the testimony of the victim. Both this court and any
     appellate court are without the power to revisit the jury’s
     credibility determinations.


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           That the jury chose to believe the victim, Mr. Austin, does
     not shock this court’s conscience or sense of justice. Mr. Austin
     was credible, consistent, and entirely believable in his testimony.
     He, on numerous occasions to several different people, described
     [Appellant and his co-Defendant] and their clothing. Two (2)
     young black men were found within minutes of the event, in the
     same area in which it occurred, and wearing clothing and having
     physical descriptions that matched Mr. Austin’s descriptions. Mr.
     Austin immediately and certainly identified the two (2) men as
     being the men who robbed him. His Connect Card was found
     within one (1) foot of [Appellant and his co-Defendant]. While
     the Connect Card did not have any identification on its face, the
     card was tied to Mr. Austin’s identity through a chip inside.
     When that chip was reloaded by Mercy Behavior Health there
     was no problem or indication that it was not Mr. Austin’s card.
     The jury found the victim to be believable and credible. After
     hearing Mr. Austin’s testimony, this court would not, even if it
     had that power, change the jury’s credibility findings.


TCO at 5-6 (unnumbered; citations to the record omitted).      Based on the

court’s detailed summary of the evidence presented against Appellant, and

its discussion regarding the credibility of Mr. Austin’s identification, we

ascertain no abuse of discretion in the court’s decision to deny Appellant’s

weight of the evidence claim.

     However, because Appellant focuses a majority of his appellate

argument on the ostensible suggestiveness of the on-scene identification, we

add the following brief discussion. Appellant asserts that he was “presented

to the victim in what may arguably be the most suggestive manner possible”

because he was “handcuffed on the sidewalk while surrounded by six or

seven uniformed officers.” Appellant’s Brief at 18. Appellant also contends

that the on-scene identification was suggestive because he “was not



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separated from the other suspect to ensure that the identifications would not

be made solely on the bases of height and complexion disparities.”          Id.

Finally, in a related argument, Appellant maintains that Mr. Austin “had a

distorted view of the detained individuals” because he was in “the rear seat

of a patrol car,” Appellant was approximately 20 feet away” from Mr. Austin,

and Appellant “was illuminated by ultra-bright lights coming from Mr. Miller’s

patrol car.” Id.

      Initially, Appellant cites no legal authority to support his argument that

he and his cohort should have been separated before being viewed by Mr.

Austin. Additionally, nothing in the portions of the record cited by Appellant

indicate that Mr. Austin’s view of him and his cohort was distorted because

the windows of the police vehicle were “possibly tinted.” Appellant’s Brief at

18.   Indeed, those excerpts of the transcript reveal that Mr. Austin was

“sure” that Appellant was one of the men who robbed him because his

assailants had not covered their faces and were still wearing the same

clothing. N.T. Trial, 9/18/13-9/19/13, at 69. Additionally, when making the

identification, Mr. Austin was only 12 feet away from Appellant and

Appellant’s face was illuminated with a spotlight.    Id. at 80.   Contrary to

Appellant’s argument, this evidence supports a conclusion that Mr. Austin

had a clear view of Appellant when he identified him.

      Additionally, this Court has repeatedly held that an identification is not

unduly suggestive simply because the defendant is handcuffed and in police


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custody when the identification is made. See Commonwealth v. Kearney,

92 A.3d 51, 66 (Pa. Super. 2014) (“Appellant’s argument that his

identification by [the victim] was unduly suggestive because he was

handcuffed to a bench at the State Police barracks does not merit relief.”)

(citing Commonwealth v. Armstrong, 74 A.3d 228, 239 (Pa. Super. 2013)

(concluding identification was not unduly suggestive even though the

appellant was presented in handcuffs); Commonwealth v. Moye, 836 A.2d

973, 977-978 (Pa. Super. 2003) (finding no “special elements of unfairness”

where the appellant was shown to the complainants handcuffed in a police

van); Commonwealth v. Allen, 429 A.2d 1113, 1120 (Pa. Super. 1981)

(finding denial of suppression motion proper even though defendants were

handcuffed in the back of a police van when the victims identified them

without hesitation)). Furthermore, as the Commonwealth points out, Officer

Miller testified that as he transported Mr. Austin to the location where

Appellant was detained, he told him “that the actors that robbed him may or

may not be here….” N.T. Trial at 92 (emphasis added). Once at the scene,

the officer’s headlights illuminated Appellant’s face and the officer “asked

[Mr. Austin] if he recognized anyone.” Id. Mr. Austin immediately identified

Appellant and his companion as “the guys that robbed” him.              Id.

Considering these circumstances, and the case law cited supra, we do not

agree with Appellant that Mr. Austin’s on-scene identification was unduly

suggestive.


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      Thus, for these reasons – and the reasons set forth by the trial court –

we conclude that the court did not abuse its discretion in denying Appellant’s

challenge to the weight of the evidence.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/2015




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