J-S28009-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

LESTER JACKSON,

                            Appellant              No. 1889 EDA 2015


             Appeal from the Judgment of Sentence April 30, 2015
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0001995-2012


BEFORE: BOWES, LAZARUS AND PLATT,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED APRIL 12, 2016

       Lester Jackson appeals from the April 30, 2015 judgment of sentence

of ten to twenty-three months house arrest with work release followed by

three years probation, which was imposed following his robbery conviction.

After careful review, we affirm.

       The events giving rise to Appellant’s conviction are gleaned from the

testimony at trial.1 At 10:30 p.m. on June 16, 2011, Peter Konstantopoulos

was robbed at gunpoint in the 1800 block of Bainbridge Street in

Philadelphia by two men as he was walking home after dinner at a

restaurant. Mr. Konstantopoulos testified that he was texting from his cell
____________________________________________


1
  Appellant and co-defendant Zakee Davis were tried together. This was a
re-trial following a jury trial that ended in a mistrial.



* Retired Senior Judge assigned to the Superior Court.
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phone when he bumped into someone who was walking toward him. As he

looked up to apologize, there were two men in front of him. The taller one

demanded, “give us your stuff,” and pointed a gun at his head. N.T. Trial

(Waiver) Vol. I, 1/14/15, at 15.     The victim tendered his wallet to the

gunman and the two men fled east on Bainbridge and then turned south on

17th Street. The second man did not say anything during the robbery.

        The victim telephoned 911 and Philadelphia Police Officers Aaron

Horne, Jr., and his partner, Jonathan Ruth, responded to the call. The victim

supplied physical descriptions of his assailants. The man with the gun was a

black male approximately 5’11” or 6 feet tall, in his mid-twenties, and

thinner than the victim. The second man was also a black male about 5’8”

tall.   The victim told police at the time that the gunman was wearing a

maroon shirt and the other man was wearing a blue shirt, but at trial he

could not recall which assailant was wearing which shirt. The victim entered

the patrol car and accompanied the officers as they canvassed the area

looking for the robbers. They drove into a parking lot where police officers

had detained two men, whom Mr. Konstantopolous identified as his

assailants. Id. at 44.

        Sergeant Horne testified that when he and his partner, now Sergeant

Ruth, arrived at the scene of the robbery, they immediately placed Mr.

Konstantopolous in the back seat of their cruiser.   Id. at 57.   The victim

provided a description of his assailants, which they flashed over the radio.

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They surveilled the area for ten or fifteen minutes, and then pulled into a

parking lot adjacent to an apartment building.        The officer had seen

movement in a minivan that was parked in the lot and its seats were

reclined. He waited until two men exited the vehicle and then called to them

so they would turn around. The officer asked the victim if the men were his

assailants, and he responded in the affirmative.    The victim pointed out,

however, that they were now wearing different clothing: white undershirts.

      Two other police officers, Christopher Warwick and Wayne Stinson,

were on foot in the area of the parking lot. After the victim identified the

men as his assailants, Officer Horne radioed the officers and directed them

to stop the men. Officer Warwick brought Appellant and his cohort in front

of Officer Horne’s patrol car so that the car’s headlights would illuminate

their faces.   The victim “was very confident and was sure that those were

the guys.” Id. at 59-60. Appellant and his co-defendant were placed into

custody by Officers Warwick and Stinson, and transported to South

Detectives. Id. at 60.

      Officer Warwick, now a New Jersey State Police Trooper, testified that

he and Officer Stinson were on foot near the apartment complex on 17 th

Street.   Appellant and his co-defendant walked toward them.     Pursuant to

instructions he received over the radio, he briefly detained them for

purposes of identification. After the victim positively identified the men as




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his assailants, he took them into custody. A search warrant was obtained

for the minivan and a blue shirt was recovered from the vehicle.

       At trial, the victim again identified Appellant and his co-defendant as

the perpetrators of the robbery. He testified that Appellant wielded the gun,

which he described as small and dark gray or black, in color. Although the

street where the robbery took place was dark, “you could see.” Id. at 24.

He stated that when he identified Appellant and his cohort in the parking lot

after the robbery, the area was “more poorly lit than the street, but we had

the headlights of the cop car to help me with lighting.” Id. at 29. On cross-

examination at trial, the victim steadfastly maintained that when he saw the

two men in the minivan shortly after the crime, he “wholeheartedly

believe[d]” they were the robbers.             Id. at 50.   He subsequently identified

the two men at line-ups.

       The trial court found Appellant guilty of robbery and not guilty of

conspiracy.2     Following sentencing, the Commonwealth filed a motion to

modify Appellant’s sentence to incarceration rather than house arrest. On

June 9, 2015, after a hearing, the court denied the motion. Appellant timely

filed the within appeal and complied with the court’s order to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.                 The trial

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2
  Co-defendant Davis was charged only with conspiracy and the trial court
found him not guilty of that offense.



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court filed its Rule 1925(a) opinion, and the matter is ripe for our review.

On appeal, Appellant presents one issue for our consideration:

             Was the evidence presented at trial sufficient as a matter
      of law to support the conviction for robbery under 18 Pa.C.S.A. §
      3710(a)(1)(ii) where there was no evidence corroborating the
      identification made by the complainant, as the co-defendant also
      identified by complainant was acquitted by this Honorable Court,
      no proceeds of the robbery were recovered, the weapon utilized
      in the crime was not recovered, defendant and co-defendant
      approached police following the crime rather than fleeing, and
      the complainant was under the influence of alcohol and in
      circumstances undermining the reliability of his identification of
      defendant as a perpetrator?

Appellant’s brief at 4.

      In determining whether the evidence was sufficient to support a

verdict, we view the evidence and all reasonable inferences to be drawn

therefrom   in   the   light   most   favorable   to    the   verdict    winner,    the

Commonwealth      herein.      Commonwealth        v.    Watley,        81   A.3d   108

(Pa.Super. 2013) (en banc). Furthermore,

      Evidence will be deemed sufficient to support the verdict when it
      established each element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty, and may sustain its burden by means of
      wholly circumstantial evidence.       Significantly, we may not
      substitute our judgment for that of the factfinder; if the record
      contains support for the convictions they may not be disturbed.

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.Super. 2005)

(citations and internal quotations omitted). The issue is one of law, and our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Weimer, 977 A.2d 1103, 1104-5 (Pa. 2009).

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       Although Appellant raises a challenge to the sufficiency of the

evidence, he makes no claim that the Commonwealth has failed to offer

proof of any specific element of robbery. Instead, he challenges the legal

sufficiency of the victim’s identification of him as the perpetrator of the

robbery. He characterizes the victim’s identification as uncorroborated, and

maintains that other circumstances tended to undermine its reliability.

       The record reveals the following.         The victim observed his assailants

for approximately two minutes as they stood within an arm’s length.

Although it was nighttime, he could see. The victim described Appellant, the

gunman, as 5’11’ or 6’ tall, in his mid-twenties, and thinner than Appellant

himself.3 The gun he pointed at his head was small, dark gray or black in

color, and largely covered up by Appellant’s hand. Although the victim could

see the barrel and the cylinder, he could not tell whether Appellant’s finger

was on the trigger. One of the men was wearing a blue shirt, the other a

red or maroon shirt.

       The victim positively identified his assailants within one-half hour of

the robbery.      He confirmed that identification from the back seat of the

patrol car as Appellant and his co-defendant stood in the car’s headlights.

____________________________________________


3
  In his original statement to police, Mr. Konstantopolous also described
Appellant as unshaven, with a little bit of facial hair, short hair close to the
head, and darker skinned. He was wearing a short sleeve maroon shirt and
blue jeans.



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Several months after the robbery, Mr. Konstantopolous identified Appellant

at a line-up. He subsequently identified Appellant at the pre-trial, the first

trial, and the instant trial.

        The trial court herein acknowledged that the victim’s identification was

opinion evidence for the factfinder to weigh. Trial Court Opinion, 10/1/15, at

10, (citing Commonwealth v. Sharpe, 10 A.2d 120, 121-22 (Pa.Super.

1039)).     The court added, “an identification made by a single witness is

sufficient to convict as long as it carries some indicia of accuracy and

reliability.” Trial Court Opinion, 10/1/15, at 9. As the trial court correctly

noted, there      is no     rule   that eyewitness identification testimony be

corroborated in order to sustain a conviction.4

        The trial court looked to our decision in Commonwealth v. Brown,

23 A.3d 544, 558 (Pa.Super. 2011), where we were reviewing the propriety

of a one-on-one identification. We held therein that the central inquiry was

whether, “under the totality of the circumstances, the identification was

reliable.” Id. at 558 (citing Commonwealth v. Moye, 836 A.2d 973, 976

(Pa.Super. 2003)). In ascertaining the reliability of identification testimony

in Brown, we applied the following factors: "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
____________________________________________


4
    Neither the gun nor the proceeds of the robbery was recovered.



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certainty demonstrated at the confrontation, and the time between the crime

and confrontation.”      Id. (quoting McElrath v. Commonwealth, 592 A.2d

740, 743 (Pa.Super. 1991).

      In Brown, the eyewitness, Golla, was six to twelve inches away from

Brown when she saw his face. She described his appearance and identified

him as the robber shortly after the robbery occurred. The jury, as the finder

of fact at trial, heard her testimony and credited her identification as

reliable.   The trial court herein concluded that Mr. Konstantopolous’s

identification   of    Appellant   and   his   co-defendant    was,      “in   probative

substance,” equal to that of the eyewitness in Brown, supra.

      Although this Court noted in Commonwealth v. Minnis, 458 A.2d

231, 233 (Pa.Super. 1983), that a “vague, tenuous and uncertain”

identification standing alone is insufficient, we reiterated therein that,

"evidence of identification . . . needn't be positive and certain in order to

convict, and     any    indefiniteness   and   uncertainty    in   the    identification

testimony goes to its weight.” (quoting Commonwealth v. Hickman, 309

A.2d 564, 566 (Pa. 1973)). Accord, Commonwealth v. Kloiber, 106 A.2d

820 (Pa. 1954). Herein, however, the victim’s identification of Appellant was

unequivocal.     Furthermore, we agree with the trial court that, given the

totality of the circumstances, the identification was sufficiently reliable to

support Appellant’s robbery conviction.




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      Appellant maintains, however, that the circumstances of this case

“undermine, rather than corroborate, the reliability of the identification.”

Appellant’s brief at 18. In support of his position, he cites our High Court’s

decision in Commonwealth v. Walker, 92 A.3d 766 (Pa. 2014), where the

Court noted that there were studies and scientific research which tended to

discredit eyewitness identifications in certain circumstances.   For instance,

Appellant points to a study described therein showing that when a weapon is

used, focus shifts to the weapon, which impairs eyewitness memory and the

accuracy of identification.     Additionally, Appellant relies upon a study

mentioned in Walker that purportedly indicates that identification is less

reliable in cases involving persons of different races and that accuracy is

reduced when the event is a high stress criminal event. Finally, Appellant

discusses science finding little correlation between the witness’s confidence

in his identification and the accuracy of that identification.

      Appellant would have us apply those phenomena to the circumstances

herein, and find the eyewitness identification unreliable. Appellant contends

that the robbery was a high stress event for the victim as it occurred on a

dark street at night. A weapon distracted the victim from the faces of his

robbers, and consequently, the description provided to police was non-

specific. The victim and his assailants were of different races, the encounter

lasted two minutes, and it was dark.




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      The Commonwealth counters that these arguments go to the weight of

the evidence rather than its sufficiency.       The Commonwealth contends

further, and Appellant concedes, that he did not preserve a weight claim as

he failed to file a post-sentence motion.     See Appellant’s brief at 19 n.8.

Thus, any challenge to the weight of the evidence is waived.

      Appellant mischaracterizes Walker.        Our Supreme Court did not

definitively accept the conclusions from the research and studies involving

eyewitness identification.    The Court merely noted that such research

existed in arriving at its holding that expert testimony regarding eyewitness

identification is no longer per se impermissible in this Commonwealth. There

was no expert testimony proffered in the instant case regarding the impact

of a weapon, the involvement of a victim and assailant of different races, or

the fact that the interaction was a stressful one upon the eyewitness

identification.   Furthermore, had there been such expert testimony, the

factfinder would have been free to believe all, part, or none of that evidence,

and to assess the credibility of the expert. Commonwealth v. Diamond,

83 A.3d 119, 134 (Pa. 2013). Such considerations go to the weight of the

evidence, not to its sufficiency.    Appellant waived any challenge to the

weight of the evidence by failing to file a post-sentence motion.

      The trial court, sitting as the finder of fact, concluded that the victim’s

identification of Appellant as the gunman was “of more than sufficient

reliability, quantity and weight to support the conviction.”         Trial Court

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Opinion, 10/1/15, at 7. On the record before us, we have no basis to disturb

that finding.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/12/2016




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