J-S15010-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                          IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                            Appellee

                       v.

DARRYL JONES,

                            Appellant                     No. 2423 EDA 2012


         Appeal from the Judgment of Sentence Entered July 20, 2012
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0016321-2008


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

MEMORANDUM BY BENDER, P.J.E.:                             FILED MARCH 03, 2016

        Appellant, Darryl Jones, appeals pro se from the judgment of sentence

of an aggregate term of 25 to 50 years’ incarceration, followed by 53 years’

probation, imposed after he was convicted of several counts of armed

robbery and related offenses.          Appellant raises various claims, including a

challenge to the legality of mandatory minimum sentences imposed pursuant

to 42 Pa.C.S. § 9712.              After careful review, we affirm Appellant’s

convictions,    but   vacate     his   judgment   of   sentence    and   remand   for

resentencing.

        At   approximately     6:30    p.m.    on November    2,   2008,   Appellant

committed an armed robbery of Patricia Cassidy and her boyfriend, Chris

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Gaglione, taking both victims’ wallets. N.T. Trial, 1/27/11, at 110-112, 113,

115.    Several hours later, at around 10:35 p.m., Appellant committed

another armed robbery of brothers Christian and Michael Pekula, taking both

men’s wallets and Christian’s cell phone.      Id. at 70, 75-76.     After the

robbery, Christian Pekula called the police and provided a description of

Appellant. Id. at 82, 85.

       Around midnight, two Philadelphia Police Officers, who were patrolling

in the area, spotted Appellant and believed he matched the description of

the armed robber.      As the officers drove their marked police car past

Appellant, one of the officers observed Appellant discard something that

“appeared to be a firearm….” Id. at 147. The officers stopped and exited

their vehicle, and as one officer went to secure the weapon, the other officer

approached Appellant and asked for identification.    Id. at 148.    Appellant

pulled out a wallet and the officer “noticed a bunch of IDs … for white

males.”    Id.   Appellant, a black man, could not explain why he had

identification cards for white males. Id.

       At that point, the officer “went to secure [Appellant] … for the

investigation, because of the firearm on the ground and the IDs,” and

Appellant “began swinging at [the officer].”    Id.   Both officers ultimately

forced Appellant to the ground and placed him under arrest.        Id. at 149.

Shortly thereafter, Christian Pekula was brought to the scene of Appellant’s

arrest and Pekula immediately identified Appellant as the man who had

robbed him. Id. at 83. Due to cuts on Appellant’s face that he sustained

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when he resisted arrest, he was transported to the hospital, where Patricia

Cassidy also positively identified Appellant. Id. at 117. Additionally, at trial,

Christian Pekula, Patricia Cassidy, and Chris Gaglione all identified Appellant

as the individual who robbed them at gunpoint. Id. at 70, 110-111, 131.

       On September 29, 2011, at the close of his jury trial, Appellant was

convicted of, inter alia, four counts of robbery, one count of unlawful

possession of a firearm, and one count of possessing an instrument of

crime.1 On July 20, 2012, Appellant was sentenced to an aggregate term of

25 to 50 years’ incarceration, which included three mandatory minimum

terms of 5 years’ incarceration pursuant to 42 Pa.C.S. § 9712 (Sentences for

offenses committed with firearms).             The court also imposed an aggregate

term of 53 years’ probation, to be served consecutively to Appellant’s

sentence of incarceration.

       While Appellant filed a timely notice of appeal on August 14, 2012, the

following, complicated procedural history resulted in this Court only now

addressing the merits of his appellate issues. First, in response to the trial

court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, Appellant’s counsel timely filed a Rule 1925(c)(4)
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1
  Appellant was also charged with two more armed robberies that had
occurred in close proximity to the robberies discussed supra. The victims in
those two incidents, Bernard Talmadge and Laura Dillingham, testified at
Appellant’s trial; however, the jury found Appellant not guilty of those
offenses.




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statement of his intent to file a petition to withdraw and an Anders brief.2

However, counsel did not file a petition to withdraw with this Court; instead,

on January 14, 2013, Appellant filed with this Court a pro se “Motion to

Remove Counsel.”        On February 4, 2013, this Court issued a per curiam

order remanding Appellant’s case to the trial court for “an on-the-record

determination as to whether [] Appellant’s waiver of counsel is knowing,

intelligent and voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d

81 (Pa. 1998)….” Order, 2/4/13. The trial court’s docket indicates that a

Grazier hearing was conducted, and the court granted Appellant’s request

to proceed pro se on appeal on March 21, 2013.

        Then, on August 5, 2013, Appellant filed with this Court a pro se

“Application for Order of Transcripts and Records.” In response, this Court

issued another per curiam order, again remanding Appellant’s case for the

trial court to provide Appellant with all the transcripts and documents

pertinent to his appellate issues.         See Order, 9/3/13.   However, the trial

court failed to comply with our order and, consequently, on January 28,

2014, we issued a second order directing the trial court to provide the

necessary documents and transcripts to Appellant.           See Order, 1/28/14.

Apparently, the trial court has now complied with our January 28, 2014

order.


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2
    Anders v. California, 386 U.S. 738 (1967).



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       On April 25, 2014, Appellant filed another pro se petition for remand

with this Court, asking us to direct the trial court to permit him to file a

supplemental Rule 1925(b) statement. On May 21, 2014, we issued another

per curiam order remanding Appellant’s case for the filing of a supplemental

Rule 1925(b) statement, as well as a supplemental Rule 1925(a) opinion by

the trial court.      Appellant filed his pro se, supplemental Rule 1925(b)

statement on July 7, 2014.3 Therein, he raised 24 issues. The trial court

issued a responsive opinion on January 20, 2015.         Appellant’s claims are

now ripe for our review.

       In his pro se brief, Appellant sets forth the same 24 issues he

presented in his supplemental Rule 1925(b) statement.         However, in the

argument portion of his brief, he only addresses the following four claims:

       I. The denial of Appellant’s motion to suppress evidence was not
       appropriate[.]

       II. The evidence was insufficient to support [Appellant’s]
       conviction for robbery.

       II. There was insufficient probable cause to arrest [Appellant].


____________________________________________


3
  Appellant also filed a “Second Supplemental” Rule 1925(b) statement on
November 11, 2014, raising an additional 12 claims, many of which asserted
that trial counsel acted ineffectively. In its opinion, the trial court does not
address the issues raised in this ‘second supplemental’ Rule 1925(b)
statement, presumably because Appellant had not requested, or been
granted, permission to file it. On appeal, the issues raised in Appellant’s
brief are the same as those set forth in his July 7, 2014 ‘supplemental
statement,’ and he does not challenge the trial court’s failure to address the
issues presented in his November 11, 2014 concise statement.



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       IV. The imposition of [Appellant’s] mandatory sentences was
       illegal under the laws of Pennsylvania.

Appellant’s Brief at 15, 28, 34, 37.

       In Appellant’s first and third issues, he alleges that the trial court erred

by denying his pretrial motion to suppress because “the police had no

probable cause [or] reasonable suspicion that he had been involed [sic] in a

criminal offense to justify an investigative detention, much less probable

cause to justify an arrest, as well as [the search was] not made pursuant to

a warrant or consent.”        Appellant’s Brief at 15.   Appellant also devotes a

large portion of the argument in his first issue to contending that his stop

was illegal because he did not match the physical descriptions provided by

Christian Pekula and Patricia Cassidy.

       Appellant did not present either of these claims in his Rule 1925(b)

statements and, consequently, these arguments are waived. See Pa.R.A.P.

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).4
____________________________________________


4
  We acknowledge that, in Appellant’s supplemental Rule 1925(b) statement,
he did refer to the lack of probable cause to support his arrest, but framed
that claim as a challenge to trial counsel’s ineffectiveness.              See
Supplemental Rule 1925(b) Statement, 7/7/14, at 8 (“Trial counsel was
ineffective for failing to challenge the arrest of the appellant without
probable cause.”). In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013),
our Supreme Court reaffirmed its prior holding in Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), that, absent certain circumstances, claims
of ineffective assistance of counsel should be deferred until collateral review
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Holmes, 79 A.3d at 576.           The specific circumstances under which
ineffectiveness claims may be addressed on direct appeal are not present in
(Footnote Continued Next Page)


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      However, within Appellant’s first issue, he also maintains that Pekula’s

and Cassidy’s out-of-court identifications should have been suppressed

because they were made in unduly suggestive circumstances.         While this

claim was preserved in Appellant’s supplemental Rule 1925(b) statement,

the Commonwealth correctly points out that in his pretrial suppression

motion, Appellant sought to suppress only the identification of Christian

Pekula; he did not move to suppress the identification made by Patricia

Cassidy.    Accordingly, Appellant has only preserved his challenge to the

admission of Pekula’s out-of-court identification.5    See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for

the first time on appeal.”).

           “Our standard of review of a denial of suppression is
      whether the record supports the trial court's factual findings and
      whether the legal conclusions drawn therefrom are free from
                       _______________________
(Footnote Continued)

the instant case. See id. at 577-78 (holding that the trial court may
address claim(s) of ineffectiveness where they are “both meritorious and
apparent from the record so that immediate consideration and relief is
warranted,” or where the appellant’s request for review of “prolix”
ineffectiveness claims is “accompanied by a knowing, voluntary, and express
waiver of PCRA review”).
5
   In any event, we note that Appellant only briefly implies that the
circumstances surrounding Cassidy’s out-of-court identification were unduly
suggestive because she identified Appellant while he was hospitalized and
had bandages on his face. See Appellant’s Brief at 28. Appellant does not
explain how his face being bandaged, or the fact that he was in the hospital,
unjustifiably alluded to his guilt. He also does not provide any legal
authority to support such a suggestion. Accordingly, even if Appellant had
preserved his challenge to Cassidy’s identification, we would find his
undeveloped argument meritless.



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     error.” Commonwealth v. McClease, 750 A.2d 320, 323 (Pa.
     Super. 2000). Our scope of review is limited; we may consider
     “only the evidence of the prosecution and so much of the
     evidence for the defense as remains uncontradicted when read in
     the context of the record as a whole.” Commonwealth v.
     Maxon, 798 A.2d 761, 765 (Pa. Super. 2002). “Where the
     record supports the findings of the suppression court, we are
     bound by those facts and may reverse only if the court erred in
     reaching its legal conclusions based upon the facts.” McClease,
     750 A.2d at 323-24 (quoting In the Interest of D.M., 560 Pa.
     166, 743 A.2d 422, 424 (1999))[;] Commonwealth v.
     Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002) (en banc).
     This is the standard of review we have applied in appeals
     challenging the denials of motions to suppress identification
     testimony. See, e.g., McElrath v. Commonwealth, 405 Pa.
     Super. 431, 592 A.2d 740, 742 (1991).

       “In reviewing the propriety of identification evidence, the
       central inquiry is whether, under the totality of the
       circumstances, the identification was reliable.” McElrath v.
       Commonwealth, 405 Pa. Super. 431, 592 A.2d 740, 742
       (1991). The purpose of a “one on one” identification is to
       enhance reliability by reducing the time elapsed after the
       commission of the crime. Commonwealth v. Bullock,
       259     Pa.   Super.   467,     393   A.2d    921    (1978).
       “Suggestiveness in the identification process is but one
       factor to be considered in determining the admissibility of
       such evidence and will not warrant exclusion absent other
       factors.” McElrath, 592 A.2d at 742. As this Court has
       explained, the following factors are to be considered in
       determining the propriety of admitting identification
       evidence: “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.” McElrath, 592 A.2d at 743 (citation
       omitted). The corrupting effect of the suggestive
       identification, if any, must be weighed against these
       factors. Commonwealth v. Sample, 321 Pa. Super. 457,
       468 A.2d 799 (1983). Absent some special element of
       unfairness, a prompt “one on one” identification is not so
       suggestive as to give rise to an irreparable likelihood of



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          misidentification. Commonwealth v. Brown, 417 Pa.
          Super. 165, 611 A.2d 1318 (1992).

       Commonwealth v. Meachum, 711 A.2d 1029, 1034 (Pa.
       Super. 1998), appeal denied, 556 Pa. 689, 727 A.2d 1119
       (1998).

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

       Here, Appellant acknowledges that Pekula’s identification was made

just over two hours after the robbery. See Appellant’s Brief at 24-25. He

also   admits   that   Pekula   “immediately   identified   [Appellant]   as    his

assailant….” Id. at 25 (citation to the record omitted). Appellant contends,

however, that at the time Pekula identified him, Appellant “had sustained

severe injuries to the left side of his face and eye, and was therefore[]

identified on the basis [that] he was black [and] sitting in the back of a

police cruiser.” Id. at 24.

       Preliminarily, Appellant’s claim that Pekula identified him while he was

sitting in the back of the police car is inaccurate. At the suppression hearing

on April 20, 2011, Philadelphia Police Officer Frederick Repetsky, who

transported Pekula to the location where he identified Appellant, stated that

at the time of Pekula’s identification, Appellant “was standing next to a

police car on the passenger side toward the rear” of the car.                  N.T.

Suppression Hearing, 4/20/11, at 15.           Officer Repetsky testified that

Appellant’s hands were handcuffed behind his back, one officer was standing

behind him, and several other officers were standing off to the side. Id. at

16.    This Court has held that out-of-court identifications made in similar

circumstances were not unduly suggestive.           See Commonwealth v.

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Kearney, 92 A.3d 51, 66 (Pa. Super. 2014) (finding victim’s identification

was not unduly suggestive even though the appellant was handcuffed to a

bench at the State Police barracks); Commonwealth v. Armstrong, 74

A.3d 228, 239 (Pa. Super. 2013) (holding that the identification of the

defendant while he was in handcuffs was not unduly suggestive).

      Additionally, even if Appellant had been sitting in the back of the police

car, that fact, alone, would not lead us to conclude that the circumstances of

Pekula’s identification were unduly suggestive. See Moye, 836 A.2d at 977

(affirming admission of out-of-court identification made by complainants

when Moye was “alone and handcuffed in a police van”); Commonwealth

v. Allen, 429 A.2d 1113 (Pa. Super. 1981) (upholding admission of out-of-

court identification, made just over an hour after the crime, and where the

defendants were handcuffed in police van).           In McElrath, this Court

declared that “[a]bsent some special element of unfairness, prompt, one-on-

one identification is not per se violative of the accused’s constitutional rights,

even where the accused has been returned to the scene of the crime in a

police cruiser.”    McElrath, 592 A.2d at 743 (citations omitted).      The only

‘special element of unfairness’ that we could infer from Appellant’s limited

argument is that the injuries to his face impacted the fairness of Pekula’s

identification.    In this regard, Appellant claims that “his head was swollen

and bleeding” due to “severe injuries to the left side of his face and eye.”

Appellant’s Brief at 24, 33. However, Appellant does not elaborate on how

the injuries were unduly suggestive, or argue that they impacted Pekula’s

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ability to recognize Appellant’s face as that of the person who robbed him at

gunpoint just over two hours earlier. Additionally, Officer Repetsky testified

that while Appellant had cuts and was bleeding when Pekula identified him,

his face was not swollen. N.T. Suppression Hearing, 4/20/11, at 17. Based

on this record, and Appellant’s minimal argument, we are not convinced that

Appellant’s facial injuries were so disfiguring as to constitute a ‘special

element of unfairness,’ making the circumstances of Pekula’s out-of-court

identification unduly suggestive. Accordingly, the trial court did not abuse

its   discretion    by    denying   Appellant’s   motion     to    suppress    Pekula’s

identification.

       In Appellant’s next issue, he purports to challenge the sufficiency of

the evidence to sustain his robbery conviction. Appellant does not specify to

which of his four robbery convictions he is referring, or what element(s) of

those offenses the Commonwealth failed to prove. Instead, Appellant simply

reiterates his assertions that because Christian Pekula’s and Patricia

Cassidy’s descriptions of the assailant did not match Appellant’s physical

appearance,        and    the   circumstances     surrounding      their    out-of-court

identifications    were    unduly   suggestive,    the   trial    court    should   have

suppressed those identifications.       These claims are either waived, or were

sufficiently addressed, supra.

       Finally, Appellant challenges the legality of the four mandatory

minimum sentences imposed pursuant to 42 Pa.C.S. § 9712, which requires

the court to impose a sentence of at least five years’ confinement “if the

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person visibly possessed a firearm …, that placed the victim in reasonable

fear of death or serious bodily injury, during the commission of the

offense….”        In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.

2014), we held that section 9712 is unconstitutional in its entirety, in light of

the United States Supreme Court’s decision in Alleyne v. United States,

133 S.Ct. 2151 (2013) (holding that any facts triggering application of a

mandatory minimum sentence must be presented to the fact-finder and

determined beyond a reasonable doubt), and this Court’s en banc holding in

Commonwealth v. Newman, 99 A.3d 86, 101-02 (Pa. Super. 2014) (en

banc) (holding that the mandatory sentencing scheme of 42 Pa.C.S. §

9712.1 is unconstitutional in light of Alleyne; declining to remand for a

sentencing jury to determine, beyond a reasonable doubt, whether the

Commonwealth had proven the factual predicates for section 9712.1, as “it

is manifestly the province of the general assembly to determine what new

procedures must be created in order to impose mandatory minimum

sentences in Pennsylvania following Alleyne”).

      Because the mandatory minimum sentencing statute under which

Appellant’s sentences were imposed is unconstitutional in its entirety, those

sentences are illegal and must be vacated. Additionally, as our disposition

upsets the trial court’s overall sentencing scheme, we vacate Appellant

sentence     in     its   entirety,   and   remand   for   resentencing.    See

Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (“If our




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disposition upsets the overall sentencing scheme of the trial court, we must

remand so that the court can restructure its sentence plan.”).6

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.




____________________________________________


6
   On May 12, 2015, Appellant filed with this Court an “Application for
Enforcement of Order Pursuant to Pa.R.A.P. Rule 1701” (hereinafter
“Application”). In the Application, and in a “Supplemental Brief” filed by
Appellant on July 28, 2015, Appellant contends that “the prothonotary’s
office,” and the Philadelphia County District Attorney’s Office (D.A.), failed to
adhere to this Court’s orders, discussed supra, which directed that Appellant
be provided with the transcripts and documents necessary to his appeal.
Application, 5/12/15, at 1. Specifically, Appellant claims that he was not
provided with the Affidavit of Probable Cause, nor the record from his
unrelated civil case (which he claims the Commonwealth used during his
underlying criminal trial). Appellant asks that we grant various forms of
relief based on the prothonotary’s and the D.A.’s failure to adhere to our
order, including: (1) issuing another order to provide him with those
documents, (2) holding the prothonotary’s office and D.A. in “contempt of
this Court’s order[s,]” (3) imposing sanctions of “a monetary fine and
incarceration,” and (4) awarding Appellant “fees and costs.” Id. at 3-4.

      Initially, our orders did not direct the prothonotary’s office or D.A. to
provide any documents to Appellant; rather, we directed the trial court to do
so. Moreover, even if Appellant is correct that the trial court failed to
provide him with certain documents, he does not explain how/why those
documents were necessary for him to present the issues addressed herein,
or how their omission hampered our assessment of his claims. Accordingly,
we deny Appellant’s Application, and conclude that the claims asserted in
his Supplemental Brief do not warrant relief.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/3/2016




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