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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                 :    IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                       v.                    :
                                             :
ANTHONY J. CAPLE,                            :          No. 2630 EDA 2015
                                             :
                            Appellant        :


           Appeal from the Judgment of Sentence, February 26, 2015,
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No. CP-51-CR-0006379-2011


BEFORE: BOWES, J., OTT, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                        FILED MAY 16, 2017

        Anthony   J.    Caple   appeals   from   the   judgment    of   sentence   of

February 26, 2015, following his conviction of robbery, criminal conspiracy,

and possession of an instrument of a crime (“PIC”).1                On appeal, he

challenges the trial court’s denial of his motion to suppress identification.

We affirm.

        On August 1, 2014, following a jury trial, appellant was convicted of

the above-mentioned offenses.2          The charges related to the May 19, 2011

robbery of the victim, Millard Goldsmith (“the victim”).          Post-trial motions



1
    18 Pa.C.S.A. §§ 3701(a)(1)(ii), 903(c), & 907(a), respectively.
2
  The trial court found appellant not guilty of the bifurcated charge of
possession of a firearm by a person prohibited under 18 Pa.C.S.A.
§ 6105(a)(1).
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were denied, and on February 26, 2015, appellant received an aggregate

sentence of 10 to 20 years’ imprisonment, followed by 10 years of probation.

Post-sentence motions were denied, and this timely appeal followed.

Appellant has complied with Pa.R.A.P. 1925(b), and the trial court filed a

Rule 1925(a) opinion.

      Appellant has raised the following issue for this court’s review:

            Did not the trial court err in denying appellant’s
            motion to suppress identification testimony, where
            the circumstances of the out-of-court identification
            by the complainant were unduly suggestive, and
            where the in-court identification did not have an
            independent basis sufficient to purge the taint of the
            out-of-court identification?

Appellant’s brief at 3.3

            The role of this Court in reviewing the denial of a
            suppression motion is well-established:

                   An appellate court’s standard of review in
                   addressing a challenge to a trial court’s
                   denial of a suppression motion is limited
                   to determining whether the factual
                   findings are supported by the record and
                   whether the legal conclusions drawn
                   from those facts are correct. Since the
                   prosecution prevailed in the suppression
                   court, 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. Where the
                   record supports the factual findings of
                   the trial court, we are bound by those

3
  Additional issues raised in appellant’s Rule 1925(b) statement, including
whether the verdict was against the weight of the evidence, have been
abandoned on appeal.


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                 facts and may reverse only if the legal
                 conclusions drawn therefrom are in error.

           Commonwealth v. Stevenson, 894 A.2d 759, 769
           (Pa.Super. 2006) (citation omitted). Although we are
           bound   by    the    factual   and    the  credibility
           determinations of the trial court which have support
           in the record, we review any legal conclusions
           de novo. Commonwealth v. George, 878 A.2d
           881, 883 (Pa.Super. 2005), appeal denied, 586 Pa.
           735, 891 A.2d 730 (2005).

Commonwealth v. Wells, 916 A.2d 1192, 1194-1195 (Pa.Super. 2007).

           As both the Pennsylvania Supreme Court and this
           Court have recognized, the suggestiveness of police
           tactics in the identification process is one factor to
           consider     in    determining     whether   to    admit
           identification evidence, but suggestiveness alone will
           not necessarily cause the evidence to be excluded.
           See Commonwealth v. Ransome, 485 Pa. 490,
           495, 402 A.2d 1379, 1382 (1979) (“Suggestiveness
           alone does not warrant exclusion. Instead ‘[i]t is the
           likelihood of misidentification which violates a
           defendant’s right to due process, and it is this which
           [is] the basis of the exclusion of evidence.’”
           (citations omitted)); Commonwealth v. Johnson,
           301 Pa.Super. 13, 446 A.2d 1311 (1982) (accord),
           aff’d in part, vacated in part 499 Pa. 380, 453
           A.2d 922 (1982). The United States Supreme Court
           has stated that a pre-trial identification will not be
           suppressed unless it can be shown that the
           identification procedure “was so impermissibly
           suggestive as to give rise to a very substantial
           likelihood      of     irreparable    misidentification.”
           Simmons v. U.S., 390 U.S. 377, 384, 88 S.Ct. 967,
           971, 19 L.Ed.2d 1247 (1968); see Commonwealth
           v. Johnson, 301 Pa.Super. 13, 15, 446 A.2d 1311,
           1312 (1982).

Commonwealth v. Vanderlin, 580 A.2d 820, 824 (Pa.Super. 1990).

“[T]he reliability of an identification is the linch pin [sic] in determining



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whether the identification testimony is admissible. Courts must look to the

totality of the circumstances to determine whether an identification is

reliable.” Id., citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977).

            The factors to be considered in determining
            admissibility of the identification claimed to be overly
            suggestive include: 1) the witness’s opportunity to
            observe the perpetrator at the time of the crime;
            2) the witness’s degree of attention; 3) the accuracy
            of the witness’s description; 4) the level of certainty
            the witness demonstrates; and 5) the lapse of time
            between the crime and the confrontation.

Commonwealth v. Palagonia, 868 A.2d 1212, 1218 (Pa.Super. 2005),

appeal denied, 880 A.2d 1238 (Pa. 2005), citing Commonwealth v.

Meachum, 711 A.2d 1029, 1034 (Pa.Super. 1998), appeal denied, 727

A.2d 1119 (Pa. 1998).       “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 misidentification.”   Meachum, 711 A.2d at 1034,

citing Commonwealth v. Brown, 611 A.2d 1318 (Pa.Super. 1992).

      At the suppression hearing held on October 19, 2012, the victim

testified that at approximately midnight on May 19, 2011, he was walking

home on Market Street heading towards 54th Street in the City of

Philadelphia. (Notes of testimony, 10/19/12 at 7-8.) At the intersection of

Market and Conestoga streets, the victim was stopped by two armed men

who directed him into a nearby alleyway. (Id. at 8-9.) The victim testified

that the intersection was illuminated by lights from the “El” train running




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along Market Street. (Id. at 8.) The victim testified that he could see the

men’s faces. (Id.)

      The victim refused to go into the alleyway and “just fell on the

ground.” (Id. at 9.) The victim testified that the ordeal lasted for several

minutes, and he was looking at the perpetrators the entire time. (Id. at 9,

16-17.)   At some point, an unidentified accomplice waiting in a vehicle

across the street yelled, “5-0,” warning of approaching police, and when the

gunmen looked up, the victim ran away. (Id. at 9.) The gunmen ran north

on Conestoga Street; the victim ran down Market Street towards the police.

(Id. at 9-10.)

      The victim told police, “Two guys just robbed me and they are armed.”

(Id. at 11.) The police told the victim to get into their van, and they drove

around the area searching for the suspects. (Id. at 11-12.) The police van

then parked in front of the Salvation Army on Arch Street, approximately

300 yards from Conestoga Street. (Id. at 12.) The victim had given police

a description of the suspects.      (Id.)   The victim testified that after

approximately one hour, he was driven back to Conestoga Street to make an

identification. (Id. at 13.) When the victim arrived at Conestoga Street, an

officer was holding appellant by the arm and searching his pockets. (Id. at

14.) The police put a spotlight on appellant and asked the victim, “Is that

the guy?” (Id. at 14, 20-21.) The victim answered in the affirmative. (Id.

at 14.) The victim testified that he was “100 percent” certain that appellant



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was one of the individuals who had robbed him.        (Id. at 15.)   The victim

testified that, “I knew this was who it was when I saw the person when they

spotlighted him. I knew who he was.” (Id. at 21-22.)

        Officer Gary Mercado testified that at approximately 12:00 a.m. on

May 19, 2011, he was approached by the victim who stated, “These guys

robbed me,” and pointed to the perpetrators. (Id. at 23.) Officer Mercado

saw the men run into the alleyway. (Id.) Officer Mercado called for back-up

and attempted to enter the alleyway but could not due to excessive

vegetation. (Id. at 24-25.) Eventually a K-9 unit apprehended appellant in

the alleyway, and the victim was brought over to make an identification.

(Id.)    Officer Mercado testified that one officer was physically holding

appellant while approximately 8-10 other officers were scattered around the

area. (Id. at 26-27.) Appellant was not placed into the police vehicle until

he was positively identified by the victim. (Id. at 28.) Later, after appellant

was transferred into a paddy wagon, the victim positively identified him a

second time. (Id. at 26-28.)

        Appellant argues that the identification procedure in this case was

unduly suggestive, where the victim was informed by police that, “They had

got the guy,” appellant was standing in front of a police vehicle and flanked

by police, including a K-9 unit, and a spotlight was being shone onto

appellant’s face.   (Appellant’s brief at 11.)   According to appellant, it was




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nearly impossible for the victim not to identify appellant under these

circumstances. (Id.)

      Furthermore, appellant contends that the identification took place an

hour after the robbery; the robbery itself was brief, lasting only a couple of

minutes; the victim was naturally focused on the perpetrators’ weapons, not

their faces; the victim was distracted, talking on his phone when he was

attacked; and the victim had been out drinking with friends, suggesting that

he was impaired at the time he identified appellant.     (Id.) Appellant also

claims that the victim’s description of the perpetrators did not match up with

appellant’s actual appearance. (Id.)

      We agree with the trial court that the identification procedure used

here was not so suggestive as to give rise to an irreparable likelihood of

misidentification.   Although the victim did testify that the police told him,

“They had got the guy,” he also testified that, “They wanted me to identify

[him] to make sure that was the person.” (Notes of testimony, 10/19/12 at

19.) The victim agreed that the purpose of the identification was to make

sure the police had the right person. (Id. at 21.) Furthermore, while there

were numerous police personnel in the area, appellant was only being held

by one officer and had not yet been placed into a police vehicle. (Id. at 26,

28.) See Commonwealth v. Allen, 429 A.2d 1113, 1121 (Pa.Super. 1981)

(where the identification was made a little more than an hour after the

crime, was within one block from the crime scene, the victims had a good



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opportunity to observe the perpetrators, and the victims unhesitatingly

identified the defendants, the fact that the defendants were handcuffed and

that the police asked the victims whether the defendants were the

perpetrators did not constitute special elements of unfairness).

      Examining the factors listed above in determining the admissibility of

an identification, despite the relatively brief nature of the incident, the victim

testified that he was able to view the perpetrators’ faces for several minutes.

(Notes of testimony, 10/19/12 at 9.) The victim testified that the area was

illuminated by lights from the El train.     (Id. at 8.)    There is nothing to

indicate that the victim was so distracted by the perpetrators’ weapons that

he could not make a reliable identification; in fact, he specifically testified

that he looked at their faces. (Id.) According to the victim, he was looking

at them the entire time.     (Id. at 16.)   Only an hour passed between the

robbery and the identification, and the victim testified that he was

“100 percent” certain that appellant was one of the men who had robbed

him. (Id. at 15.)

      Appellant claims that the victim had been drinking that night and was

on the phone when he was robbed, and therefore, his identification was

unreliable.   Appellant also argues that his description of his assailants did

not match appellant’s appearance.      (Appellant’s brief at 6, 11.)    From our

review of the suppression transcript, these issues were not raised as part of

appellant’s pre-trial motion to suppress the identification. Rather, this was



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trial testimony. (Trial court opinion, 3/17/16 at 15, 19.) Furthermore, any

alleged discrepancy between the           victim’s description   and   appellant’s

appearance was only one factor to consider.

        For these reasons, we agree that appellant failed to demonstrate that

the out-of-court identification procedure was impermissibly suggestive. As

such,    it   is   unnecessary   to   consider   whether   the   victim   had   an

“independent basis” for the subsequent in-court identification.           The trial

court did not err in denying appellant’s suppression motion.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/16/2017




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