J-S30033-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellee

                        v.

DWIGHT WILLIAMS

                             Appellant                No. 2319 EDA 2013


               Appeal from the Judgment of Sentence May 6, 2013
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): CP-51-CR-0006351-2011


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                           FILED AUGUST 28, 2015

        A jury found Dwight Williams guilty of robbery,1 conspiracy,2 robbery

of a motor vehicle,3 and possession of an instrument of crime.4 The trial

court sentenced Williams to a total of 8½ - 17 years’ imprisonment.

Williams filed timely post-sentence motions, which the trial court denied, and

a timely direct appeal.        Both Williams and the trial court complied with

Pa.R.A.P. 1925. We affirm.

        The trial court accurately summarized the evidence as follows:

____________________________________________


1
    18 Pa.C.S. § 3701(a)(1)(ii).
2
    18 Pa.C.S. § 903.
3
    18 Pa.C.S. § 3702.
4
    18 Pa.C.S. § 907.
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          On May 18, 2011, William Jackson drove his
          girlfriend Jessica Blair and her son to her home.
          Jackson was driving his milk-white, 1976 Chevrolet
          Impala, which was customized with distinctively
          large 26” tires and rims. When Jackson pulled up to
          Blair’s home at 1379 Narragansett Street in
          Philadelphia, he double-parked his vehicle and
          walked Blair and her son to the front door. Blair and
          Jackson talked on the porch for several minutes.
          During their conversation, Jackson noticed two men
          — defendant Scott and co-defendant Williams —
          walking down the street. Williams and Scott stopped
          walking when they reached Jackson’s car, and then
          stood there talking for approximately five minutes.
          They were approximately ten to fifteen feet from
          Jackson, who was on the porch. Jackson ended his
          conversation with Blair and then walked down the
          porch steps toward his vehicle.

          As soon as Jackson reached the bottom of the steps,
          [] Williams approached Jackson and pulled out a
          black and silver semi-automatic handgun. [] Scott
          followed close behind. Williams pointed the gun in
          Jackson’s face and told him to get on the ground, lay
          face-down on his stomach, and hand over his
          money. Jackson complied by [lying] on the ground.
          Williams then put the gun to the center of the back
          of Jackson’s head. [] Scott was standing directly
          behind Williams. Williams removed a wallet from
          Jackson’s back pocket, and told [] Scott to jump in
          Jackson’s car and drive off. [Scott] stepped over
          Jackson, entered Jackson’s vehicle, and drove
          toward Stenton Avenue. Even though he was [lying]
          on the ground, Jackson observed [Scott] drive
          Jackon’s Impala down Narragansett Street and turn
          right onto Stenton Avenue. [] Williams told Jackson
          not to move. Williams then walked away in the same
          direction as [] Scott, and then turned right on
          Stenton Avenue.

          After [] Williams walked away, Jackson got up off the
          sidewalk and walked inside Blair’s house. Once he
          entered the house, Jackson called police using Blair’s
          phone; the police arrived a few minutes later.

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          Jackson provided descriptions of both men: ‘the one
          gentleman with the gun had on a dark gray hoodie
          and dark pants, light-skinned, goatee, kind of
          stocky. The other person that drove off in the vehicle
          was dark-skinned, slim, maybe a little bit taller.’
          Jackson testified that he remembered the faces ‘very
          well’ and that there were several street and porch
          lights on in the area. Police conveyed over police
          radio the descriptions of both defendants and a
          description of the stolen car.

          Sergeant Daniel Ayres and Officer Michael Bransfield
          were responding to the police radio call when they
          passed Jackson’s distinctive Impala two blocks away
          from the scene of the crime at the corner of
          Crittenden and Price. The officers observed the
          Impala parked poorly, with the headlights and
          interior lights left on, and the keys on the ground in
          the middle of the street outside of the driver’s side
          door. [] Scott was near the Impala walking away
          from the driver’s side door of the car. The Officers
          stopped      [Scott]     for   investigation   pending
          identification by Jackson.

          Officers Justin O’Brien and Fred MacConnell stopped
          [] Williams on the 6500 block of Wister Street, just
          one block from the scene of the crime. Williams was
          walking down Wister Street looking over his
          shoulder. When the Officers turned their car around,
          Williams had stopped walking and was now sitting on
          the steps of a house along Wister Street. Williams
          claimed that he lived there when asked by Officer
          O’Brien, but he did not know the address of the
          house or the name of the street. The Officers held
          Williams for investigation pending identification by
          Jackson. Officers Brandon Bryant and Kevin Cahill
          transported Jackson to a total of three locations to
          make possible identifications. At the first location,
          Jackson identified the Impala stopped by Officers
          O’Brien and MacConnell as his customized Impala.
          He then positively identified [] Scott as the individual
          who stole his Impala. Jackson testified that [Scott]’s
          facial hair stood out, and he remembered ‘his face,
          dark skin, his height, his stature, even the clothing

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            he had on.’ At the second location, Jackson was
            provided the opportunity to make an identification of
            someone the police had stopped in the area. Jackson
            told the officers that this second person was not
            involved in the robbery. Jackson was then taken to a
            third location, where he identified [] Williams as the
            gunman who pointed the gun at his head and took
            his wallet. Jackson testified that he would not forget
            Williams’s face and stature.        Approximately ten
            minutes passed from the time he was robbed until he
            identified [] Scott and Williams. Jackson testified that
            he had no doubt about his identifications of [] Scott
            and Williams and that he would never forget the day
            that he was robbed.

Pa.R.A.P. 1925(a) Opinion, at 1-4 (citations omitted).

      Williams raises three issues in this appeal:

            Is the appellant entitled to an arrest of judgment
            with regard to his conviction[s] for robbery, robbery
            of a motor vehicle, criminal conspiracy and
            possessing   instruments     of   crime   since   the
            Commonwealth failed to sustain its burden of
            proving the appellant’s guilt of [these crimes]
            beyond a reasonable doubt?

            Is the appellant entitled to a new trial with regard to
            his conviction[s] for robbery, robbery of a motor
            vehicle,   criminal    conspiracy    and    possessing
            instrument of crime since the verdicts of guilt are
            against the weight of the evidence?

            Is the appellant entitled to a new trial since the trial
            court erred when it denied his pretrial motion to
            suppress?

Brief For Appellant, at 5.

      Williams’ first argument is a challenge to the sufficiency of the

evidence. Our standard of review for such challenges is well-settled:




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             [W]hether[,] viewing all the evidence admitted at
             trial   in    the  light most     favorable   to  the
             [Commonwealth as the] verdict winner, there is
             sufficient evidence to enable the fact-finder to find
             every element of the crime beyond a reasonable
             doubt. In applying [the above] test, we may not
             weigh the evidence and substitute our judgment for
             the fact-finder. In addition, we note that the facts
             and       circumstances     established     by    the
             Commonwealth need not preclude every possibility
             of innocence. Any doubts regarding a defendant’s
             guilt may be resolved by the fact-finder unless the
             evidence is so weak and inconclusive that as a
             matter of law no probability of fact may be drawn
             from       the    combined     circumstances.    The
             Commonwealth may sustain its burden of proving
             every element of the crime beyond a reasonable
             doubt by means of wholly circumstantial evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 716 (Pa.Super.2015).

        We begin by defining the relevant offenses. The robbery statute

provides in relevant part that “a person is guilty of robbery if, in the course

of committing a theft, he: … threatens another with or intentionally puts him

in fear of immediate serious bodily injury.” 18 Pa.C.S. § 3701(a)(1)(ii). In

addition, an individual is guilty of robbery of a motor vehicle “if he steals or

takes a motor vehicle from another person in the presence of that person or

any other person in lawful possession of the motor vehicle.” 18 Pa.C.S. §

3702.    A person is guilty of conspiracy with another person to commit a

crime if, “with the intent of promoting or facilitating its commission he …

agrees with such other person or persons that they or one or more of them

will engage in conduct which constitutes such crime or an attempt or

solicitation to commit such crime …”      18 Pa.C.S. § 903(a)(1).     Finally, a



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person is guilty of possession of an instrument of crime “if he possesses any

instrument of crime with intent to employ it criminally.”           18 Pa.C.S. §

907(a). An instrument of crime is “(1) anything specially made or specially

adapted for criminal use [or] (2) anything used for criminal purposes and

possessed by the actor under circumstances not manifestly appropriate for

lawful uses it may have.” 18 Pa.C.S. § 907(d).

      Williams argues that the Commonwealth failed to prove Williams’

identity as the perpetrator of these crimes. The evidence discussed above –

consisting of Jackson’s positive identifications of Williams and Scott,

Williams’ possession of a weapon during the incident, and Williams’

untruthfulness    when    confronted    by   the    police,   demonstrating    his

consciousness of guilt – was plainly sufficient to prove Williams’ identity as

one of the robbers.      See Commonwealth v. Ragan, 645 A.2d 811, 818

(Pa.1994) (eyewitness testimony identifying defendant as shooter “was

clearly sufficient” to sustain his conviction); Commonwealth v. Donnelly,

653 A.2d 35, 37 (Pa.Super. 1995) (“fabrication of false and contradictory

statements by the accused is evidence from which a jury may infer that they

were made with the intent to mislead police and are indicative of guilt”);

Commonwealth v. Thomas, 539 A.2d 829, 831 (Pa.Super.1988) (single

witness’s positive identification of appellant sufficient to establish his identity

as the robber).

      Williams argues that “the Commonwealth did not present any physical

or scientific evidence in an attempt to connect [him] to the crime,” and

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“[a]bsolutely no physical evidence was presented to corroborate Jackson’s

account of the incident.” Brief for Appellant, at 26. The Commonwealth was

not required to present any physical or scientific evidence connecting

Williams to the crime, because “it is settled that a positive identification by

one witness is sufficient for conviction.” Commonwealth v. Wilder, 393

A.2d 927, 928 (Pa.Super.1978).        Williams also points out that Jackson’s

girlfriend, Jessica Blair, did not make any identification of the robbers. The

Commonwealth, however, was not required to present any evidence to

corroborate Jackson’s testimony, because corroboration is not required of

testimony found credible by the fact finder. See Commonwealth v.

Connelly, 689 A.2d 950, 953 (Pa.Super.1997) (uncorroborated testimony of

prosecution witnesses may alone be sufficient to convict if credited by fact

finder). Jackson’s positive identifications of Wlliams as one of his assailants

was sufficient, by itself, to prove Williams’ guilt for robbery. Thus, Williams’

challenge to the sufficiency of the evidence fails.

      In his second argument on appeal, Williams contends that he is

entitled to a new trial because the verdict is contrary to the weight of the

evidence. The weight of the evidence is a matter 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. Commonwealth v. Forbes, 867

A.2d 1268, 1273–74 (Pa.Super.2005). A new trial is not warranted because

of “a mere conflict in the testimony” and must have a stronger foundation



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than a reassessment of the credibility of witnesses.       Commonwealth v.

Bruce, 916 A.2d 657, 665 (2007). Rather, the role of the trial judge is to

determine that notwithstanding all the facts, certain facts are so clearly of

greater weight that to ignore them or to give them equal weight with all the

facts is to deny justice. Id. On appeal, “our purview is extremely limited

and is confined to whether the trial court abused its discretion in finding that

the jury verdict did not shock its conscience. Thus, appellate review of a

weight claim consists of a review of the trial court’s exercise of discretion,

not a review of the underlying question of whether the verdict is against the

weight of the evidence.” Commonwealth v. Knox, 50 A.3d 732, 738

(Pa.Super.2012). An appellate court may not reverse a verdict unless it is

so contrary to the evidence as to shock one’s sense of justice. Forbes, 867

A.2d at 1273–74.

      Williams bases his challenge to the weight of the evidence on

discrepancies between Jackson’s testimony and the testimony of Jackson’s

girlfriend, Jessica Blair. According to Williams, Jackson’s identification of the

scene of the robbery as well-lit was undermined by Blair’s inability to identify

either perpetrator. Williams also emphasizes that Blair was sure that Scott

had a chipped tooth when in fact he did not. These details certainly were

fodder for closing argument, but the jury remained free to credit Jackson’s

account of the events and to return a guilty verdict on this basis. The trial




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court acted within its discretion by denying Williams’ challenge to the weight

of the evidence.

      In his final argument on appeal, Williams contends that the trial court

improperly denied his motion to suppress, because the police stopped him

on the street without reasonable suspicion and the out-of-court identification

procedure was overly suggestive. The standard of review in an appeal from

an order denying a motion to suppress is as follows:

            Our standard of review in addressing a challenge to
            the denial of a suppression motion is limited to
            determining whether the suppression court’s factual
            findings are supported by the record and whether
            the legal conclusions drawn from those facts are
            correct. Because the Commonwealth prevailed before
            the suppression court, we may consider only the
            evidence of the Commonwealth 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 suppression court’s factual findings are
            supported by the record, we are bound by these
            findings and may reverse only if the court’s legal
            conclusions are erroneous.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.2010).

      We first address whether the police had reasonable suspicion to stop

Williams on the street. “It is well established that the Fourth Amendment to

the United States Constitution and Article I, Section 8 of the Pennsylvania

Constitution allow a police officer to conduct a brief investigatory stop of an

individual if the officer has reasonable suspicion, based on specific and

articulable facts, that criminal activity may be afoot.” In re C.C., 780 A.2d

696, 698 (Pa.Super.2001).      To determine whether reasonable suspicion

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existed, the court must examine the totality of the circumstances, and the

officer must be able to articulate specific facts that, together with reasonable

inferences drawn from those facts, led him to reasonably conclude, in light

of his experience, that criminal activity was afoot. Commonwealth v.

Daniels, 999 A.2d 590, 597 (Pa.Super.2010). The court should consider the

specificity of the identification information provided to the authorities “in

conjunction with the offense reported to have been committed, the proximity

of the crime to the sighting of the suspect and the time when, as well as the

place where, the confrontation occurs.” Commonwealth v. Whelton, 465

A.2d 1043, 1047 n.4 (Pa.Super.1983). Also, “[w]hen evaluating the totality

of circumstances comprising reasonable suspicion … this Court will not

ignore the ability of experienced police officers to draw deductions and

inferences which other persons might not make.” In Interest of B.C., 683

A.2d 919, 924 (Pa.Super.1996).       Reasonable suspicion is a relatively low

standard. Thus, “[t]he fact that a suspect’s behavior may be consistent with

innocent behavior does not, standing alone, make detention and limited

investigation illegal.” Commonwealth v. Johnson, 734 A.2d 864, 869

(Pa.Super.1999).

      Here, the evidence presented at the suppression hearing established

that at approximately 10:40 p.m., Williams and Scott confronted the victim,

Jackson, on the street in front of his girlfriend’s house. Pointing a gun at

Jackson’s head, Williams forced him to the ground and removed his wallet


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from his pocket. Williams told Scott to drive off in Jackson’s car and then

walked away in the same direction in which Scott had driven. N.T. 2/4/13,

13-22.

      After Williams and Scott left, Jackson went inside his girlfriend’s house

and telephoned the police. Jackson told the police what had happened and

provided descriptions of Williams and Scott.     Police radio broadcasted that

there had been a gunpoint carjacking, described the stolen car as a 1979

white Chevy Impala, and described the robbers as two black males, one

wearing a black “hoodie,” the other wearing a gray “hoodie.”           Officers

responding to the broadcast quickly located the car haphazardly parked on a

nearby street with its headlights still on.   Scott, who was wearing a black

hoodie, was walking away from the vehicle when officers stopped him for

investigation. The police transported Jackson to the scene, and he identified

the car as being his and Scott as being the person who accompanied

Williams during the robbery and drove off in his vehicle. N.T., 2/4/13, at 23,

44-54.

      Other police officers responding to the radio broadcast quickly located

Williams walking at a fast pace down the 6500 block of Wister Street, in the

same area where the robbery occurred.         Williams was wearing a white T-

shirt, and the officers believed that he fit the description of one of the

robbers and had possibly taken his hoodie off. When the officers made a U-

turn to approach Williams, he sat down on the steps of one of the houses on


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the block. The officers exited their car and asked Williams if he lived there,

and he said yes.     They asked him what the address was, but he did not

know and turned around in an apparent attempt to learn what it was. One

of the officers asked Williams if he knew the name of the street, and he was

unable to tell them.     The officers asked him again if he lived there.         This

time, he admitted he did not.      Besides lying to the officers, Williams also

acted nervously throughout the encounter. N.T., 2/4/13, at 26, 36, 54-61.

        This evidence provided reasonable suspicion to believe that Williams

may have been one of the robbers. See Commonwealth v. Williams, 73

A.3d 609, 616 (Pa.Super.2013) (reasonable suspicion existed because

defendant lied to officer who approached him on the street and gave officer

false    name);   Commonwealth           v.      Clemens,   66     A.3d   373,   380

(Pa.Super.2013) (reasonable suspicion existed to detain defendant for

investigation because, among other things, when he spotted the police, he

ran onto the porch of nearby house, pretended to read a newspaper, and

when questioned by officer, admitted that he did not live at that address);

Commonwealth        v.   Guess,    53     A.2d     895,   901-02    (Pa.Super.2012)

(reasonable suspicion existed to detain defendant because he and his

companion matched general description of suspected burglars, they were

found near where the crimes occurred, defendant appeared nervous when

approached by police, and he claimed to be in the area to visit a friend but




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did not provide friend’s name when asked). Therefore, Williams’ stop on the

street was proper.

       We next consider whether the trial court properly denied Williams’

motion to suppress his out of court identification.            A trial court should

evaluate the totality of the circumstances when reviewing a motion to

suppress an out of court identification. Commonwealth v. Freeman, 827

A.2d 385 (Pa.2003). Although suggestiveness in the identification process is

relevant,    “suggestiveness     alone      does    not    warrant      exclusion.”

Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa.Super.2011).                     The

court must also examine 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.       Commonwealth          v.    Wade,    33     A.3d   108,   114

(Pa.Super.2011). The court must weigh these factors against the corrupting

effect of any suggestiveness.        Id.        The court should not suppress

identification evidence unless the facts demonstrate that the identification

procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification.” Fulmore, 25 A.3d at

346.

       The purpose of a “one on one” identification is to enhance reliability by

reducing the time elapsed after the commission of the crime.            Wade, 33


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A.3d at 114. 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. Id.

      In this case, there was no special element of unfairness that rendered

the one-on-one confrontation unduly suggestive.        The evidence at the

suppression hearing established that Jackson had a good opportunity to

observe Williams prior to and at the time of the crime.         Jackson was

standing on his girlfriend’s porch when he saw Scott and Williams walk down

the street in his direction. Scott and Williams stopped near where Jackson

had parked his car, within ten feet of where Jackson was standing. For the

next ten minutes, Scott and Williams stood there while Jackson continued to

speak with his girlfriend. Although it was nighttime, there was lighting from

street lights and the porch light. N.T. 2/4/13, at 15-17, 29.

      After ten minutes passed, Jackson stepped off of his girlfriend’s porch

and walked toward his car. Scott and Williams confronted him, and Jackson

had a face-to-face view of Scott for approximately one minute. Williams

pointed a gun at Jackson and told him to get onto the ground. Williams

asked Jackson for his money and his wallet. As Jackson lay on the ground,

he was only a few feet from Scott and could see his face. Eventually,

Williams told Scott to get into Jackson’s car and drive away. Williams then

walked away. Jackson explained that a number of minutes passed from the

time that Scott and Williams confronted him on the street until Scott finally


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drove off. During the encounter, Jackson had ample opportunity to observe

Williams and saw that he had a goatee, was light-skinned and approximately

six-feet tall, and was wearing a gray “hoodie” and dark pants. N.T. 2/4/13,

at 16-22, 38.   Jackson’s observations during the robbery were at least as

reliable as other cases in which we have found the victim’s observations

reliable.   See, e.g., McElrath v. Commonwealth, 592 A.2d 740, 743

(Pa.Super.1991) (victim had sufficient opportunity to observe appellant so

as to make reliable out-of-court identification even though she observed him

for only five seconds); Commonwealth v. Bell, 562 A.2d 849, 851-52

(Pa.Super.1989) (victim had sufficient opportunity to observe appellant and

make out-of-court identification even though he observed him only in

silhouette for a few seconds).

      Nor was anything at the scene of Scott’s arrest improperly suggestive.

After the robbery, Jackson telephoned the police, who arrived within a

matter of minutes. Police officers immediately transported Jackson a couple

of blocks away to where they had stopped Scott. Scott was not handcuffed

but was sitting inside a police car. Jackson positively identified Scott as the

person who had driven away in his car. Jackson clearly remembered Scott’s

face from the robbery and had no doubt “at all” about his identification,

which took place just a few minutes after the robbery. N.T. 2/4/13, at 23-

26, 36, 41, 47-48, 52-53.        The police then drove Jackson to another

individual (not Scott or Williams) that they had stopped. Jackson stated that


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this person was not involved in the robbery, demonstrating that he was not

simply identifying anyone whom the police presented to him. Finally, the

police drove Jackson to a third location, where they had stopped Williams.

There, Jackson positively identified Williams as the gunman because he

remembered Williams’ face, goatee, and “whole stature.”         Jackson was

“[o]ne-hundred percent” certain that Williams was one of the robbers. His

identification of defendant took place just a few minutes after the robbery

occurred.   N.T., 2/4/13, at 26-28, 43, 56-58, 62-64.     This evidence is at

least as sturdy as other decisions in which we held that the identification of

suspects in custody was admissible.    See Commonwealth v. Moye, 836

A.2d 973, 976-78 (Pa.Super.2003) (identification was not unduly suggestive,

even though it took place while defendant was handcuffed and was lone

person inside police van, and even though prior to the identification, police

told witnesses whose house had just been burglarized that they had person

for witnesses to identify who had been found running down the street

looking sweaty and tired); Commonwealth v. Brown, 611 A.2d 1318,

1320-21 (Pa.Super.1992) (victim’s identification of defendant at hospital less

than two hours after assault not impermissibly suggestive, even though

victim saw weapon used in the crime prior to making identification and

defendant was in handcuffs at time of identification); McElrath, 592 A.2d at

742-43 (victim’s one-on-one identification of defendant who was in police

custody not unduly suggestive, even though the victim noticed defendant’s


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gun before focusing on his face at identification procedure, where victim had

observed defendant for approximately five seconds during crime and made

identification within thirty minutes of incident); Bell, 562 A.2d at 851-52

(victim’s   one-on-one     out-of-court     identification   not   impermissibly

suggestive, even though defendant was handcuffed in back of police van and

victim had not gotten good look at his attacker); Commonwealth v.

Walker, 501 A.2d 1143, 1149-50 (Pa.Super.1985) (robbery victim’s one-

on-one identification of defendant fifteen minutes after crime and while

defendant was in custody not unduly suggestive).

      Williams claims that Jackson’s identification of him was suggestive

because, at the time Jackson identified him, he was not wearing a gray

hoodie, as Jackson had described earlier, and was not in possession of a gun

or any proceeds of the robbery.      Williams ignores, however, that Jackson

was able to identify Williams based on his face, goatee and “whole stature”.

A detailed “facial identification is the strongest identification testimony.”

Commonwealth        v.   Smith,   423     A.2d   1296,   1299   (Pa.Super.1981).

Moreover, Jackson had a lengthy opportunity to view Williams during the

robbery.    We see nothing overly suggestive about Williams’ identification.

Indeed, the record indicates that Jackson’s identification of Williams was

quite reliable, given his refusal to identify the second person stopped by

police as one of the perpetrators.




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     For these reasons, the trial court properly denied Williams’ motion to

suppress.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




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