J. S42041/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                           Appellee         :
                                            :
                    v.                      :
                                            :
BILLY RAY INMAN JR.,                        :
                                            :
                           Appellant        :     No. 54 EDA 2015

           Appeal from the Judgment of Sentence November 15, 2013
             In the Court of Common Pleas of Northampton County
               Criminal Division No(s).: CP-48-CR-0000904-2013

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 11, 2015

        Appellant, Billy Ray Inman, Jr., appeals from the judgment of sentence

entered in the Northampton County Court of Common Pleas following his

jury conviction of simple assault, terroristic threats, robbery/threatening

another with or intentionally putting another in fear of immediate serious

bodily injury, theft by unlawful taking, and theft by receiving stolen

property1 (“RSP”).       He challenges: (1) the sufficiency and weight of the

evidence for robbery; and (2) the court’s denial of his motion to suppress

the victim’s in-court identification of him, on the ground that it was tainted.

We affirm.



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2701(a)(3), 2706(a)(1), 3701(a)(1)(ii), 3921(a), 3925(a).
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      The trial court summarized the underlying facts as follows. See Trial

Ct. Op., 3/12/15, at 1-3.     On January 15, 2013, at approximately 11:55

p.m., Mittie Merkle was working alone at a 7-Eleven store.       A man, later

identified as Appellant, entered the store; he had dreadlocks and wore a hat,

sunglasses, and a black jacket with stripes on the sleeves. He went to the

counter, “put his right hand in his pocket” as if “he had a gun in his pocket,”

and on the counter placed a plastic bag and a note which stated, “[G]ive me

all your money or you will die.” Id. at 1. Merkle gave the man money from

the register. Although she did not see a gun, she believed he had a gun and

would kill her if she did not comply. The man left and Merkle immediately

called 911, providing a physical description of the perpetrator. Surveillance

video, played at trial, showed Merkle had her “hands up” during the incident.

N.T., Jury Trial Vol. II, 8/6/13, at 44.

      Bethlehem police officers responded to the store. At trial, Officer Kelly

Martin and Detective Christopher Beebe described Merkle as “shaken,”

scared, nervous, and upset.        Id. at 76, 96.   They, along with Officer

Christopher Kopp, watched the store’s video surveillance. “No suspects were

located that evening.” Trial Ct. Op. at 2.

      Six days later, on January 21, 2013, Officer Kopp responded to a call

about a male believed to match the description of the male in the 7-Eleven

robbery. Officer Kopp saw a man wearing a black jacket with stripes on the

shoulders, “a military-style chevron on the left sleeve and a white emblem



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on the chest.” Id. The man had dreadlocks, wore a hat similar to the hat in

the 7-Eleven robbery, and “appear[ed] to be the same size and shape as the

person in the [7-Eleven] video.” N.T., 8/6/13, at 88. The man said he lost

his keys and was looking for them. Officer Kopp requested his identification,

which indicated he was Appellant. The officer, however, had to respond to

another call and left, but later relayed this information to Detective Beebe.

      Meanwhile, on January 23, 2013, Merkle saw a photograph on the

Internet, on the Bethlehem Township website, of an unidentified person

alleged to have committed a retail theft at a Walmart store in Bethlehem

Township. Trial Ct. Op. at 3; see N.T., 8/6/13, at 5. “The photograph was

captured by the security camera as the alleged perpetrator was walking

through the Walmart store.”    Trial Ct. Op. at 8.

         Merkle immediately recognized the man in the
         photographs as the person who robbed her at the 7-Eleven
         and contacted Detective Beebe[. She went] to the police
         department where she·was shown a photo lineup . . .
         contain[ing] eight photographs. Ms. Merkle recognized
         [Appellant] as the person that robbed her within “one
         minute.”

Id. at 3 (citation to record omitted).

      Appellant was charged, and at the preliminary hearing, Merkle

identified him in court as the perpetrator. Id. Subsequently, Appellant filed

a motion to suppress Merkle’s identification of him, on the ground that it was

tainted by her viewing the Walmart photograph on the Bethlehem Police

Department website.     The trial court heard argument on August 5, 2013,



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and ruled the Walmart photograph itself was admissible, but disallowed any

reference to why it was taken or where it “[came] from.” N.T. Trial Vol. I,

8/5/13, at 5.

      The   case   then   immediately   proceeded   to   a   jury   trial.   The

Commonwealth called as witnesses Merkle and the three officers mentioned

above. Appellant did not testify, but called his girlfriend, who testified she

was at home with Appellant and her twenty-year old nephew when the

robbery occurred.2 The Commonwealth then called her nephew as a rebuttal

witness, and he testified Appellant was not at home at that time.

      The jury found Appellant guilty of robbery, simple assault, terroristic

threats, theft by unlawful taking, and receiving stolen property.            On

November 15, 2013, the court conducted sentencing for this matter as well

as an unrelated guilty plea to retail theft.3 In this case, the court imposed

the following sentences: (1) ten to twenty years’ imprisonment for robbery,

pursuant to the mandatory sentencing provision of ten years for a “second

strike” offense;4 (2) one to two years for terroristic threats; (3) one to two



2
  Appellant’s girlfriend testified she could see the 7-Eleven store from her
apartment window. N.T., 8/6/13, at 129.
3
  It is not clear whether the retail theft plea was related to the Walmart
photo.
4
  See 42 Pa.C.S. § 9714(a)(1) (setting minimum sentence of ten years’
imprisonment for any person convicted of “crime of violence,” if at time of
commission of current offense, person was previously convicted of crime of



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years for simple assault; (4) six month to two years for theft by unlawful

taking, and (5) six months to two years for RSP.         These sentences were

ordered to run concurrently with each other, but consecutive to the sentence

of one to two years’ imprisonment for the retail theft conviction.

        On November 22, 2013, Appellant filed a timely post-sentence motion,

which was not ruled upon. One year later, on November 24, 2013, Appellant

filed a timely pro se Post Conviction Relief Act5 petition to reinstate his direct

appeal rights nunc pro tunc.6     The court appointed counsel, reinstated his

direct appeal rights, and issued an order to file a Pa.R.A.P. 1925(b)

statement. However, the court then directed Appellant to file another post-

sentence motion and brief.       Appellant complied, arguing, inter alia, the

verdict was against the weight of the evidence and the court erred in

denying his motion for acquittal and admitting photographs of him at the

scene of a different crime.

        Appellant’s first issue before this Court is a two-fold challenge to the




violence). Appellant had a 1985 North Carolina conviction of robbery, a
felony of the first degree. N.T. Sentencing, 11/15/13, at 4.
5
    42 Pa.C.S. §§ 9541-9546.
6
  We note the post-sentence motion should have been deemed denied by
operation of law after 120 days, and the court clerk should have entered an
order to this effect. See Pa.R.Crim.P. 720(B)(3)(a), (c). Appellant could
have then taken an appeal from that denial.




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sufficiency and weight of the evidence for robbery.7 He first avers there was

no direct evidence that he placed Merkle in fear of immediate serious bodily

injury. In support, he maintains Merkle “stated she did not see a gun during

[the] encounter,” “did not state that the perpetrator spoke to her in a

threatening manner,” “even walked towards him during [the] encounter,”

“even completed her shift that night,” “had previously stated at the

preliminary hearing she was not scared,” and “was not nervous in testifying

against him at [t]rial.”        Appellant’s Brief at 10 (emphasis added).

Furthermore, Appellant claims, “Although the note stated the victim produce

funds or suffer death [sic], the victim did not take the threat seriously.” Id.

at 11.

         Second, Appellant asserts the evidence was not “sufficient beyond a

reasonable doubt [that he] actually was the perpetrator of the robbery.” Id.

at 9. In support, he cites Merkle’s testimony that the perpetrator wore a hat

and sunglasses and “was in and out real quick.”             Id.   Appellant also

emphasizes Merkle’s preliminary hearing and trial testimony that when she

saw the photograph on the Internet, “she was unable to identify the

perpetrator by face but by jacket.” We find no relief is due.

         We note the relevant standards of review:

              The standard we apply in reviewing the sufficiency of
           the evidence is whether viewing all the evidence admitted
           at trial in the light most favorable to the verdict winner,

7
    Appellant presents these as three separate issues in his appellate brief.



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         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. . . . 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. . . .
         [T]he entire record must be evaluated and all evidence
         actually received must be considered. Finally, the trier of
         fact while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011)

(citations omitted).

            “For this Court to reverse the jury’s verdict on weight of
         the evidence grounds, we must determine that the verdict
         is so contrary to the evidence as to ‘shock one’s sense of
         justice.’”

               Appellate review of a weight claim is a review of
            the exercise of discretion, not of the underlying
            question of whether the verdict is against the weight
            of the evidence. Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration
            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the
            evidence. One of the least assailable reasons for
            granting or denying a new trial is the lower court’s
            conviction that the verdict was or was not against
            the weight of the evidence and that a new trial
            should be granted in the interest of justice.

Id. at 557-58.

      Appellant was convicted under the following subsection of the robbery

statute: “A person is guilty of robbery if, in the course of committing a theft,



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he . . . threatens another with or intentionally puts him in fear of immediate

serious bodily injury[.]” See 18 Pa.C.S. § 3701(a)(1)(ii).

      As stated above, in support of his claim that he did not threaten

Merkle, Appellant cites selected statements in her trial testimony. However,

we note the context in which Merkle testified she walked toward Appellant:

            [Commonwealth:] Were you right at the counter when
         [the perpetrator gave you the demand note], or were you
         a few steps away?

            [Merkle:] I was a few steps away.

           Q. And what did you think when he came and put
         something on the counter?

            A. That it was a robbery.

            Q. So did you walk towards him?

            A. Yes.

            Q. And what happened when you walked towards him?

            A. I seen the note, I opened the register, and I gave
         him the money that was in the register and he asked me if
         there was any money [sic]. I said no, then he left.

N.T., 8/6/13, at 30-31.

      In addition, Merkle had testified she was the “cashier/manager” and

was working alone, and when asked why she continued her shift after the

robbery, she replied, “Because there was nobody else available.” Id. at 28,

50. Officer Martin and Detective Beebe described Merkle after the robbery

as “shaken,” “somewhat scared and nervous” and “upset.”        Id. at 76, 96.

Nevertheless, Merkle’s reactions during and after the incident, as well her


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demeanor at trial, alone are not dispositive of whether Appellant may be

convicted under Subsection 3701(a)(1)(ii).      The Commonwealth’s evidence

would support a jury finding that Appellant threatened Merkle with

immediate serious bodily injury; the statute does not require that she in fact

was in fear. See 18 Pa.C.S. § 3701(a)(1)(ii).

      Significantly, Appellant wholly ignores Merkle’s clear testimony that

Appellant “put his right hand in his pocket, and it looked like he had a gun in

his pocket,” and that he presented a note which stated, “Give me all your

money or you will die.” N.T., 8/6/13, at 30, 31. She testified she believed

he had a gun and that if she did not comply, he would kill her. Id. at 32.

The jury was free to believe all, part, or none of the testimony, and we do

not reweigh the witnesses’ credibility. See Brown, 23 A.3d at 557-58. We

do not find the jury’s verdict so contrary to the evidence as to shock the

conscience. See id. at 544.

      With respect to Appellant’s challenge to Merkle’s identification of him

as the perpetrator, we consider that defense counsel thoroughly cross-

examined her. Merkle responded to defense counsel’s questions about the

photo she saw on the Internet as follows:

            [Appellant’s counsel:] Did you identify that person by
         the jacket or by his face?

            [Merkle:] The jacket, the face, the way he’s built, the
         height.

                                  *    *    *



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             Q. Could you see his face?

             A. A little bit.

N.T., 8/6/13, at 63.       Defense counsel then confronted Merkle with her

preliminary hearing testimony, which was as follows:

             [Q.] “So when you saw the picture on the web site, did
           you identify him by face or by the jacket?” . . .

             [A.] “By the jacket.”

Id. at 64. Defense counsel then elicited, at trial, three more confirmations

from Merkle that she identified Appellant in the Internet photo by his jacket.

Id. at 69, 70, 71.     On redirect examination, however, Merkle testified as

follows:

               [Commonwealth: W]hen you called Detective Beebe to
           tell him that you recognized the person who had robbed
           from pictures on the Internet—

                                     *     *      *

              Q. —you told Detective Beebe that it was the same guy
           that robbed you because he matched the description?

             A. Yes.

              Q. And, at the preliminary hearing, you indicated that
           he was the same build, same hair, same jacket?

             A. Yes.

              Q. Okay. Now, in the photo lineup . . . [Appellant] was
           not wearing the jacket?

             A. No.

Id. at 71-72.



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      Furthermore, Appellant wholly ignores that Officer Kopp, who watched

the store’s surveillance video on the night of the robbery, also identified

Appellant.   He testified that six nights after the robbery, on January 21,

2013, he responded to a call about a man matching the description of the

robber. Id. at 86. Officer Kopp observed the man, Appellant, wearing “the

same jacket” and “appear[ing] to be the same size and shape as the person

in the video.” Id. at 87-88. Upon the officer’s request, Appellant produced

his photo identification. Id. at 89. At trial, Officer Kopp identified Appellant

as the person he encountered on January 21st. Id. at 91.

      It is not disputed that Appellant presented a note to Merkle which

stated, “Give me all your money or you will die,” and that he put his hand in

his pocket as if he had a gun. Viewing all the evidence presented at trial in

the light most favorable to the Commonwealth, we hold there was sufficient

evidence for the jury to find Appellant guilty of robbery/threatening another

with serious bodily injury. See 18 Pa.C.S. § 3701(a)(1)(ii); Brown, 23 A.3d

at 559-60. We likewise hold the jury was free to weigh Merkle’s and Officer

Kopp’s identification of him as the perpetrator, and we do not supplant the

jury’s finding with our own. See Brown, 23 A.3d at 557-58. Accordingly,

we do not disturb the court’s denial of Appellant’s weight of the evidence

claim.

      Appellant’s second claim in this appeal is that the trial court erred in

denying his motion to suppress Merkle’s identification of him and in



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permitting the Commonwealth to display the Internet photograph of him.

He alleges Merkle’s identification was tainted by the Internet photograph of

him taken at Walmart. Appellant maintains that at trial, Merkle testified the

perpetrator in the 7-Eleven robbery wore sunglasses and a hat and “[s]he

did not have a chance to focus on his facial features since she testified she

was focused on the thought maybe he had a gun[.]” Appellant’s Brief at 16.

He avers Merkle’s identification of the “photograph on a website implicating

him in a separate crime was suggestive and prejudicial.”         Id. at 15.

Appellant reiterates Merkle “admitted she identified the photograph . . . by

the jacket, not the face,” and asserts her “perception . . . continued when

she identified him” in the photo array eight days after the robbery. Id. at

17.    He concludes there was no “independent basis for [Merkle’s]

identifications of” him. Id. We find no relief is due.

      We note the standard of review for a suppression issue:

         “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 error.” 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.”       “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.”

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

omitted).



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     Our Supreme

        Court has recognized that identifications made only after a
        witness has seen the defendant in the media might prove
        to be suggestive. . . .

           The problem with an impermissible suggestive
        identification is the potential for misidentification, resulting
        in a due process violation if that identification is admitted
        at trial. Following a suggestive pre-trial identification, a
        witness will not be permitted to make an in-court
        identification unless the prosecution establishes by clear
        and convincing evidence that the identification was not
        induced by events occurring between the time of the crime
        and the in-court identification.          Thus, an in-court
        identification following a suggestive out of court
        identification will be admissible only if, considering the
        totality of the circumstances, it is determined that the in-
        court identification had an origin sufficiently distinguishable
        to be purged of the primary taint.

           In determining whether an independent basis for
        identification exists, we must consider the following
        factors: (1) the opportunity of the witness to view the
        criminal at the time of the crime; (2) the witness’ degree
        of attention; (3) the accuracy of the witness’ prior
        description of the criminal; (4) the level of certainty
        demonstrated by the witness at the confrontation; and (5)
        the length of time between the crime and the
        confrontation. Our scope of review limits our consideration
        to a determination of whether sufficient evidence has been
        presented to support the independent basis for the in-court
        identification.

Commonwealth v. Carter, 643 A.2d 61, 71 (Pa. 1994) (citations omitted).

     In Carter, the defendant “challenge[d] the trial court’s refusal to

suppress his in court identification by the victim” arguing the victim’s

“recognition of him [was] tainted by her review of a newspaper article




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containing his picture two days after the [incident].” 8      Id. at 71.    Our

Supreme Court first found the victim’s “positive identification of the

[defendant] after seeing his picture in the newspaper an ‘impermissible

suggestive identification.’”    Id. (noting identifications made only after

witness has seen defendant in media might prove to be suggestive).

However, the Court found the victim “had ample opportunity to view the”

defendant during the incident, “gave accurate and consistent descriptions of

the [defendant] to the police immediately after the attack,” and that these

descriptions were “consistent with her in-court identification and evidence

that she could identify the [defendant] from his presence at the crime

scene.” Id. at 71-72. Furthermore, the Court was

         convinced of the certainty of [the victim’s] identification.
         [The victim] testified without hesitation that she saw the
         faces of her assailants[,] she was “certain” of the identities
         of the individuals who were outside of the car[ and] she
         could identify the [defendant] prior to having seen his
         picture in the paper.

Id. at 72.     The Court thus concluded the victim “‘crystalize[d]’ her

identification of the [defendant] as a result of the assault and not as a result

of the newspaper photograph.” Id. The Court thus held she “had sufficient

independent basis for her in-court identification to purge the taint of the

suggestive pre-trial identification.” Id. at 71.


8
  The Carter decision did not state whether the newspaper article and
photograph were related to the victim’s assault. See Carter, 643 A.2d at
71.



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      In denying Appellant’s suppression motion, the trial court considered

the following. During the robbery, Merkle and Appellant were within a few

feet of each other and thus Merkle was “in a good vantage point to observe

[Appellant’s] physical appearance.      Trial Ct. Op. at 12.         Immediately after

the   robbery,   Merkle    described   the      perpetrator    “as    a   black   male,

approximately 5’9” tall, medium build, wearing a black jacket with stripes, a

white hat with sunglasses and dreads.” Id. Within a week of the robbery,

Merkle recognized Appellant in a photograph that accompanied

          a news release from the Bethlehem Township Police
          Department [about] an alleged retail theft at the Walmart
          in Bethlehem Township. The . . . photograph [was] of an
          unidentified male who was alleged to have committed the
          retail theft[,] unrelated to the charges in the present case.
          The photograph was captured by the security camera as
          the alleged perpetrator was walking through the Walmart
          store[ and] did not depict [Appellant] engaged in any
          obvious criminal activity.      Rather, it merely depicted
          [Appellant] walking face forward, wearing his very distinct
          black jacket with white stripes and other distinctive
          markings. There was nothing in the news release that
          implicated the robbery at the 7-Eleven which occurred
          miles away in a different jurisdiction[.]

Id. at 7-8.

      We find no error in the court’s analysis or its conclusion that “there

existed   a   very   strong,   independent      basis   for   Ms.    Merkle’s   in-court

identification of [Appellant] outside the photograph viewed on the Internet.”

See id. at 12. Accordingly, we do not disturb the court’s ruling.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/11/2015




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