J-S64043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEVEN WOODSON,                            :
                                               :
                       Appellant.              :   No. 2419 EDA 2017


            Appeal from the Judgment of Sentence, June 15, 2017,
             in the Court of Common Pleas of Philadelphia County,
             Criminal Division at No(s): CP-51-CR-0001287-2015.


BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.:                          FILED JANUARY 10, 2019

        Steven Woodson appeals from an aggregate judgment of sentence of

40 to 80 years’ incarceration, after a jury convicted him of attempted rape, 1

aggravated assault,2 involuntary deviate sexual intercourse,3 robbery,4

aggravated indecent assault,5 and sexual assault.6 Woodson asserts that (1)

the Philadelphia Police Department violated his rights of privacy under both


____________________________________________


1   18 Pa.C.S.A. § 901; 18 Pa.C.S.A. § 3121.

2   18 Pa.C.S.A. § 2705.

3   18 Pa.C.S.A. § 3123.

4   18 Pa.C.S.A. § 3701.

5   18 Pa.C.S.A. § 3125.

6   18 Pa.C.S.A. § 3124.1.
J-S64043-18



the   Constitution   of   the   United   States   and   the   Constitution   of   the

Commonwealth of Pennsylvania, (2) the trial court improperly instructed the

jury regarding identity testimony, and (3) his sentence is excessive. For the

reasons below, we affirm.

      On New Year’s Day 2015, a woman was walking through an open-air

parking garage at around 11:00 am. Upon exiting an elevator on one of its

higher levels, she encountered Woodson, a total stranger, who greeted her

with a hello.

      Once her back was turned, Woodson attacked. He covered her mouth

and pressed into her back something that felt like a gun. Woodson choked

and beat her, to the point that she feared he was going to kill her. She passed

out but survived.

      The woman regained consciousness while Woodson was still robbing

her. Unsurprisingly, she suffered severe pain.      She testified, “I remember a

gust of air filling my lungs, and I remember feeling vomit and blood at the top

of my throat,” describing it as a dreamlike state. N.T., 3/2/17, at 12-13.

      The woman found herself facedown, between parked cars. She looked

over and saw Woodson rummaging through her purse. When she looked up

at Woodson’s face, he became enraged and resumed savagely beating her.

He grabbed her, dragged the woman in front of the parked cars, and pulled

clumps of hair from her scalp. He threatened “that he was going to make sure

she couldn’t see.” Trial Court Opinion, 10/2/17, at 2.




                                         -2-
J-S64043-18



      Next, Woodson told her to strip. She begged him not to rape her. He

sexually assaulted her, vaginally and anally.

      Fortunately, Angela and Eric Wilson, a married couple, happened to be

driving through that parking garage. As their car passed, the woman escaped

Woodson’s grasp and ran, naked, into their car.

      Woodson fled, and Mr. Wilson gave chase. Mrs. Wilson and the woman

waited in the car and called 911.

      Dispatch radioed for all officers to be on the lookout for a six-foot-tall,

black male, wearing blue jeans, white sneakers, a black jacket, and a black

hat with an orange stripe, who was heading northbound on 17 th Street. Two

or three minutes later, Officer Frank Binns saw Woodson, a six-foot-tall,

African-American, walking north on 17th Street, wearing blue jeans and white

sneakers. But he had no coat or hat, which was particularly odd, given that

it was a chilly January morning.

      Suspicious, Officer Binns stopped Woodson for questioning. The suspect

couldn’t get his story straight. First, he said he was coming from a nearby

hospital. Then, he changed his story; he was going to it. Plus, Woodson had

no identification and provided the police with two fake names. While searching

their database for his aliases, the officers received additional information by

radio that the assailant had a “scruffy beard.” N.T., 3/1/17, at 12. Woodson

had matching facial hair. Moreover, investigators soon recovered the black

jacket and black-and-orange hat, both abandoned behind some shrubbery,

about 25 feet away.

                                      -3-
J-S64043-18



      Next, police brought Eric Wilson to see if he could identify Woodson as

the attacker. Mr. Wilson was “not sure.” N.T., 3/1/17, 14, 24. They also

brought the woman, now riding in a squad car, down and asked her to identify

Woodson. She refused to look at him, because of her physical and emotional

pain. Instead, the woman insisted the officers take her to the hospital. They

obliged.

      Officer Binns arrested Woodson on suspicion of the assault, attempted

rape, and robbery and to identify him accurately. Before leaving the scene,

the policeman searched Woodson’s person and removed two credit cards. He

placed them into an opaque, plastic bag.

      After Woodson arrived at the police station, investigators determined

his true name. Also, Special Victims’ Unit (“SVU”) Detective Brian Meissler

opened the plastic bag to see who owned the credit cards. One of them bore

the woman’s name.

      About a month later, after she was out of the hospital, the woman went

to the jail for a line-up. She immediately identified Woodson as her attacker.

      Before trial, Woodson moved to suppress the woman’s credit card. A

suppression hearing occurred; the court, finding no constitutional violation,

admitted the woman’s credit card into evidence; and the jury convicted.

      The trial court imposed an aggregate sentence of 40 to 80 years of

incarceration and denied a post-sentence motion. Woodson timely appealed.

      He raises three issues in his brief. First, he claims the trial court abused

its discretion by not giving a jury instruction on eyewitness identification under

                                      -4-
J-S64043-18



Commonwealth v. Kloiber, 106 A.2d 850 (Pa. 1954). See Woodson’s Brief

at 6. Second, Woodson asserts Detective Meissler violated his constitutional

rights when he opened the opaque, plastic bag to read the names on the credit

cards that the police had taken at the time of arrest. Id. Third, he asks this

Court to review the discretionary aspects of the sentence that the trial judge

imposed; he believes that sentence is excessive. Id. at 7. We shall address

his second issue first, which will render his first issue moot. We will deny the

request to review the discretionary aspects of his sentence.

      Woodson believes the Philadelphia Police Department lacked probable

cause to take him into custody, and, therefore, Detective Meissler had no

constitutional authority to open the opaque, plastic bag and read the names

on the two credit cards. Id. at 48. He claims that he was in a custody from

the moment Officer Binns first approached him on 17th Street, but the trial

court only found reasonable suspicion at that juncture – a constitutionally

insufficient quantum of suspicion to justify a custodial detention. Id. In the

alternative, he argues that, if we find the initial interaction between Officer

Binns and him to have been an investigative stop, then subsequent events

dispelled any prior reasonable suspicion that he was the attempted rapist. Id.

Thus, under both scenarios, Woodson asserts that the police had no grounds

to take him to their station house, seize the two credit cards, and read the

names on them.

      The Commonwealth thoroughly rebuts Woodson’s theory in its brief:




                                     -5-
J-S64043-18


       Following the denial of a suppression motion, a reviewing
       court must consider the prosecution evidence at the
       suppression hearing, and so much the evidence for the
       defense, as when fairly read in the context of the record as
       a whole, remains uncontradicted.        Commonwealth v.
       Smith, 836 A.2d 5, 10 (Pa. 2003). The record must be
       viewed in the light most favorable to the Commonwealth as
       the prevailing party. Commonwealth v. Rickabaugh, 706
       A.2d 826, 833 (Pa. Super. 1997). Where the suppression
       court’s factual findings are supported by the record, a
       reviewing court may reverse only if the suppression court’s
       legal conclusions are erroneous and there is no other
       legitimate basis for admitting the challenged evidence.
       Commonwealth v. Laatsch, 661 A.2d 1365, 1367 (Pa.
       1995). Under this standard, [Woodson] cannot prevail.

       . . . After [Woodson] was taken into custody, officers placed
       credit cards that were recovered from his person inside a
       storage bag for safekeeping. That bag was later opened by
       a detective after [Woodson] was identified as wanted on an
       outstanding bench warrant. Obviously, [Woodson] had no
       privacy interest in a bag that the police themselves had
       supplied. Thus, [his] challenge to the detective’s act of
       removing the bag is fundamentally misguided.                Cf.
       Commonwealth v. Hall, 554 A.2d 919, 921-22 (Pa. Super.
       1989) (no warrant is necessary when, at the police station,
       officers inspect items that were previously seized at the time
       of arrest) . . .

          Seizures are classified as investigative detentions (which
       require only a reasonable suspicion that criminal activity is
       afoot) and custodial detentions (which require probable
       cause). E.g., Commonwealth v. Bennett, 827 A.2d 469,
       477 (Pa. Super. 2003). Here, upon initially encountering
       [Woodson], the police acted appropriately by detaining him
       for a brief period in order to conduct an investigation.
       Moreover, prior to taking him into custody, they obtained
       additional information that supplied the requisite probable
       cause to arrest him.

          Officer Frank Binns received a radio bulletin based on
       information from a named civilian witness. It reported a
       rape by a six foot tall black male in blue jeans and white
       sneakers with a black jacket and a black hat with an orange


                                    -6-
J-S64043-18


       stripe. It also specified that the perpetrator was fleeing
       northbound from Callowhill Street, on 17th Street.

          Within three minutes, Officer Binns observed [Woodson]
       proceeding northbound a short distance away on 17th
       Street. He was the only person on the street and fit the
       broadcast description – except that he was not wearing a
       coat or hat. The absence of outer clothing was particularly
       noteworthy given that it was a very cold day in January.
       Thus, the officers could not ignore that defendant may have
       abandoned his outer wear while on the run in an effort to
       avoid detection. See In the Interest of D.M., 727 A.2d
       556, 558 (Pa. 1999) (upholding stop based on general
       description close to time and place of crime reported by
       civilian witness); Commonwealth v. Sheridan, 437 A.2d
       44, 46 (Pa. Super. 1981) (upholding stop although suspect
       was not wearing a hat or the same type of coat reported in
       a radio bulletin).

           What happened next only increased the officer's concern.
       [Woodson] first told the police that he was coming from
       Hahnemann Hospital. Then he switched gears and said he
       was going to Hahnemann Hopital.          When asked for
       identification, [Woodson] (who was in his thirties) claimed
       that he had “never had an ID as an adult” and provided two
       different inconsistent names. Meanwhile, police received a
       supplemental radio report that the perpetrator had a
       “scruffy beard;” sure enough, defendant had a scruffy beard
       as well. Additionally, they learned that the missing black
       jacket and black hat with an orange stripe had been
       recovered approximately 25 feet from where defendant had
       been sighted.

          “[R]esponses by the suspect which the officer knows to
       be false, or which are implausible, conflicting, evasive, or
       unresponsive may well constitute probable cause when
       considered together with [the officer’s] prior suspicions.” 3
       W. LaFave, Search and Seizure, § 3.6(f) at 449-50 (5th ed.
       2012) (footnotes with case citations omitted). That was the
       case here. See Commonwealth v. Norris, 499 A.2d 644,
       646 (Pa. Super. 1985) (combination of furtive conduct and
       resemblance to description of perpetrator triggered
       probable cause).    See generally Commonwealth v.
       Thompson, 985 A.2d 928, 940-41 (Pa. 2009) (probable
       cause deals with the factual and practical considerations of

                                   -7-
J-S64043-18


          everyday life upon which reasonable and prudent men act);
          Commonwealth v. Quiles, 619 A.2d 291, 298 (Pa. Super.
          1993) (en banc) (“Probable cause exists when criminality is
          one reasonable inference; it need not be the only, or even
          the most likely, inference”).

             [Woodson] emphasizes that an eyewitness – apparently,
          Good Samaritan, Eric Wilson – failed to identify him upon
          being brought to the scene. That witness simply stated,
          however, that he was “not sure” whether or not defendant
          was the person who had fled after assaulting [the survivor].
          This remark was in no way exculpatory; it did not negate
          the probable cause that had arisen from other factors.

             [Woodson] also notes that Officer Binns referred to
          taking him into custody to find out “who he was.” The officer
          clarified, however, that he believed he could be “the doer
          for the rape in progress.” In any event, the legality of a
          search or seizure is measured by an objective test and does
          not depend on the officer's subjective motivations or state
          of mind. Commonwealth v. Foglia, 979 A.2d 357, 362
          (Pa. Super. 2009) (en banc).

             In sum, the totality of the circumstances supplied
          probable cause to believe that defendant was implicated in
          the assault. Therefore, he could be arrested and searched
          incident to arrest. Commonwealth v. Rickabaugh, 706
          A.2d at 836. It follows that the credit cards on his person –
          one of which bore the [survivor’s] name – were lawfully
          recovered.7

Commonwealth’s Brief at 10-14 (emphasis and footnote in original; citations

to the record omitted).

       We agree with the Commonwealth’s well-reasoned arguments above

and adopt them as the analysis of this Court. Thus, we affirm the trial court’s
____________________________________________


7 Moreover, after apprehending [Woodson], police learned that he had an
outstanding bench warrant for indecent exposure. N.T., 3/1/17, 30. See
Utah v. Strieff, ___ U.S. ___, 136 S.Ct. 2056 (2016) (taint from illegal
seizure was too attenuated to support the exclusion of evidence once police
learned that the suspect had an outstanding arrest warrant) . . . .

                                           -8-
J-S64043-18



order denying suppression of the survivor’s credit card, which Woodson had

in his possession only a few minutes after the crimes were committed.

      Because the Commonwealth showed that damning evidence to the jury

on the last day of trial, we need not reach the merits of Woodson’s first

appellate issue – i.e., whether the trial court should have given the Koilber

instruction he requested. Even if we were to agree with Woodson, the error

was harmless, because his possession of the survivor’s credit card, standing

alone, clearly identified him as the perpetrator.

      The only explanation for him having the survivor’s credit card is obvious:

he is guilty beyond any reasonable doubt. The Commonwealth could have

tried and won this case without the survivor identifying Woodson. Therefore,

we decline to decide his first claim of error, because it would not merit a new

trial, regardless of how we might rule. We thus dismiss Woodson’s first issue

as moot.

      Lastly, we deny Woodson’s application for allowance of appellate review

of the discretionary aspects of sentencing, because he has failed to raise a

substantial question.

           Challenges to the discretionary aspects of sentencing do not
           entitle an appellant to review as of right. Commonwealth
           v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An
           appellant challenging the discretionary aspects of his
           sentence must invoke this Court’s jurisdiction by satisfying
           a four-part test: (1) whether appellant has filed a timely
           notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether
           the issue was properly preserved at sentencing or in a
           motion to reconsider and modify sentence, see Pa.R.Crim.P.
           [720]; (3) whether appellant's brief has a fatal defect,


                                      -9-
J-S64043-18


         Pa.R.A.P. 2119(f); and (4) whether there is a substantial
         question that the sentence appealed from is not appropriate
         under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
         Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
         2006).

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). In this

instance, there is no question that Woodson has satisfied prongs one through

three of the test for invoking our appellate jurisdiction. We therefore proceed

directly to the fourth prong: whether Woodson has presented a substantial

question.

      Woodson argues that the trial court imposed a “de facto life sentence”

that “is excessive under the circumstances.      The sentence imposed in this

matter is thus contrary to the fundamental norms which underlie the

sentencing process, and inconsistent with the Sentencing Code.” Woodson’s

Brief at 55. However, Woodson’s statements in this regard are conclusory and

fail to explain what portion of the Sentencing Code with which the sentence

was inconsistent or how it ran contrary to sentencing norms.

      He goes on to say that the “failure to consider mitigating factors, failure

to address the rehabilitative needs of Mr. Woodson, and fact that the

sentences are ordered to be served consecutively despite the fact that they

occurred simultaneously, raises a substantial question that this sentence

which will incarcerate Mr. Woodson for a the remainder of this natural life (i.e.,

until age 135) is a deviation from sentencing norms.” Id. He cites no case

law to support those statements.




                                     - 10 -
J-S64043-18



     This Court has previously held that such unsubstantiated protestations

are not substantial questions:

           It is settled that this Court does not accept bald
        assertions of sentencing errors. See Commonwealth v.
        Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). When
        we examine an appellant’s Rule 2119(f) statement to
        determine whether a substantial question exists, “[o]ur
        inquiry must focus on the reasons for which the appeal is
        sought, in contrast to the facts underlying the appeal, which
        are necessary only to decide the appeal on the merits.”
        Commonwealth v. Ahmad, 961 A.2d 884, 886–87 (Pa.
        Super. 2008) (quoting Commonwealth v. Tirado, 870
        A.2d 362, 365 (Pa. Super. 2005)). A Rule 2119(f) statement
        is inadequate when it “contains incantations of statutory
        provisions and pronouncements of conclusions of law[.]”
        Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa.
        Super. 2005) (citation omitted).

           Here, Appellant asserts in his Rule 2119(f) statement:

           [T]he [trial] court imposed both aggravated range
           sentences and standard guideline range sentences. It
           ordered that each sentence, twelve in total, run
           consecutive to one another. As a result, the aggregate
           minimum judgment of sentence was over eleven
           years. At the time the trial court imposed its amended
           sentencing order, [Appellant] was seventy years of
           age. The trial court's sentence is in effect a de facto
           life sentence on an individual who cannot pose any
           threat to society due to both the loss of his license and
           his age.

        Appellant’s Brief at 27. Based on Appellant’s 2119(f)
        statement, we conclude that he has failed to raise a
        substantial question.

            Appellant’s excessiveness claim is premised on his
        argument that the trial court imposed consecutive
        sentences and failed to consider his mitigating
        circumstances, such as his age and loss of license.
        Specifically, Appellant claims that, because the trial court
        ordered his sentences to run consecutively, his aggregate
        sentence of 133 to 266 months in prison was excessive. We

                                    - 11 -
J-S64043-18


       consistently have recognized that excessiveness claims
       premised on imposition of consecutive sentences do not
       raise a substantial question for our review.              See
       Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa.
       Super. 2015) (en banc) (stating, “[a] court’s exercise of
       discretion in imposing a sentence concurrently or
       consecutively does not ordinarily raise a substantial
       question[.]”), appeal denied, 633 Pa. 774, 126 A.3d 1282
       (2015); see also Commonwealth v. Ahmad, 961 A.2d
       884, 887 n.7 (Pa. Super. 2008); Commonwealth v. Pass,
       914 A.2d 442, 446–47 (Pa. Super. 2006). Additionally,
       Appellant claims that the trial court failed to consider his
       mitigating circumstances, specifically his “advanced” age of
       over seventy years.         Appellant’s Brief at 50.        In
       Commonwealth v. Eline, 940 A.2d 421 (Pa. Super. 2007),
       we concluded that an appellant’s argument that “the trial
       court failed to give adequate consideration to [his] poor
       health and advanced age” in fashioning his sentence does
       not raise a substantial question. Eline, 940 A.2d at 435. In
       so concluding, we explained that “[t]his court has held on
       numerous occasions that a claim of inadequate
       consideration of mitigating factors does not raise a
       substantial question for our review.” Id. (citation omitted);
       see Commonwealth v. Disalvo, 70 A.3d 900 (Pa. Super.
       2013) (citations omitted) (“This Court has held on numerous
       occasions that a claim of inadequate consideration of
       mitigating factors does not raise a substantial question for
       our review.”); see also Commonwealth v. Berry, 785
       A.2d 994 (Pa. Super. 2001) (explaining allegation that
       sentencing court failed to consider certain mitigating factor
       generally does not raise a substantial question);
       Commonwealth v. Cruz–Centeno, 447 Pa.Super. 98, 668
       A.2d 536, 545 (1995) (“[a]n allegation that a sentencing
       [judge] ‘failed to consider’ or ‘did not adequately consider’
       certain factors does not raise a substantial question that the
       sentence was inappropriate,”), appeal denied, 544 Pa.
       653, 676 A.2d 1195 (1996); Commonwealth v. Bershad,
       693 A.2d 1303, 1309 (Pa. Super. 1997) (finding absence of
       substantial question where appellant argued the trial court
       failed to adequately consider mitigating factors and to
       impose an individualized sentence). Consistent with the
       foregoing cases, we conclude that Appellant failed to raise a
       substantial question with respect to his excessiveness claim


                                   - 12 -
J-S64043-18


         premised on the imposition of consecutive sentences and
         inadequate consideration of mitigating factors.

Commonwealth v. Radecki, 180 A.3d 441, 468-469 (Pa. Super. 2018).

      Applying Radecki, we decline to assert appellate jurisdiction over the

discretionary aspects of the sentence, because Woodson’s Pa.R.A.P. 2119(f)

statement does not demonstrate a substantial question for our review. Thus,

we will not address the merits of this third and final claim of error.

      Judgment of sentence affirmed.

      Judge Bowes concurs in the result.

      Judge Olson concurs in the result.

      Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/10/19




                                     - 13 -
