                   COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Elder and Annunziata
Argued at Richmond, Virginia


JACOB DANIEL AQUINO
                                         MEMORANDUM OPINION * BY
v.   Record No. 3041-99-2                 JUDGE LARRY G. ELDER
                                            DECEMBER 19, 2000
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    James B. Wilkinson, Judge

           Ali J. Amirshahi for appellant.

           Thomas M. McKenna, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


     Jacob Daniel Aquino (appellant) appeals from a judgment of

the Circuit Court for the City of Richmond convicting him of

three counts of robbery, one count of attempted robbery, and

four counts of using a firearm in the commission of a felony.

He contends the Commonwealth's evidence was insufficient as a

matter of law to identify him as the perpetrator of these

crimes.   We hold that the Commonwealth's identification evidence

was not unreliable as a matter of law and was sufficient to

prove appellant's guilt beyond a reasonable doubt.   Accordingly,

we affirm the judgment of the trial court.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                               Background

     On May 21, 1999, around 3:00 a.m., Chris Kasper, Jason

Sheldon, Suntek Chung, and Marilyn Brogan were walking home when

they stopped to admire a fountain by the Richmond Public

Library.    A man walked up, asked about the fountain, then

produced a revolver and instructed the four to throw their

wallets to the ground.      After Kasper, Sheldon, and Chung

surrendered their money, the robber thanked them and ran off.

     Kasper and Sheldon indicated that the robbery lasted

between five and ten minutes.     Kasper, Sheldon, and Chung each

stated that he had an opportunity during the robbery to observe

the perpetrator's face. 1

     Within a week after the robbery, a detective showed the

victims a six-photograph police lineup that included a

photograph of appellant.     Kasper and Sheldon identified

appellant as the robber.     Chung wavered between appellant and

another person and eventually selected the other person.

     At trial, Kasper, Sheldon, and Chung identified appellant

as the robber.    Although the victims admitted they had been

drinking beer earlier that night, none indicated that he was

intoxicated at the time of the robbery.




     1
         Brogan was out of the country and did not testify at
trial.

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     Upon cross-examining each victim, appellant had his

brother, Andrew Aquino (Andrew), enter the courtroom so he could

be observed by the witness.

     Kasper admitted it was "possible" that Andrew was the

robber.   He reiterated, however, that the robber looked like

appellant as appellant appeared in the lineup photograph.     And

upon being shown a photograph of Andrew, Kasper stated that

Andrew did not look like the robber.      He further noted that

appellant's appearance at trial was different from his

appearance in the lineup photograph.

     Sheldon initially denied the possibility that Andrew was

the robber.    He finally stated that it "could be possible" after

appellant asked whether he was certain in his identification of

appellant "beyond any doubt in your mind whatsoever."     Upon

looking at a photograph of Andrew on re-direct, Sheldon

indicated that Andrew was not the robber, remarking "[t]his

gentleman is much skinnier."

     Chung did not waver in his identification of appellant at

trial as the robber, and he was adamant that Andrew was not the

perpetrator.

                               Analysis

     "On appeal, 'we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom.'"      Archer v.

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997)

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(citation omitted).   "When such evidence leads to the conclusion

of guilt beyond a reasonable doubt, and excludes every

reasonable hypothesis of innocence, it is sufficient to support

a finding of guilty."   Avent v. Commonwealth, 209 Va. 474, 477,

164 S.E.2d 655, 657 (1968).   "This Court does not substitute its

judgment for that of the trier of fact, and the trial court's

judgment will not be set aside unless plainly wrong or without

evidence to support it."   Hunley v. Commonwealth, 30 Va. App.

556, 559, 518 S.E.2d 347, 349 (1999) (citation omitted).

     "A conviction based upon a mere suspicion or probability of

guilt, however strong, cannot stand."   Bridgeman v.

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02

(1986).   But "[t]he Commonwealth is not required to exclude the

possibility that another may have committed the crime."     Johnson

v. Commonwealth, 15 Va. App. 73, 76, 422 S.E.2d 593, 594 (1992)

(emphasis added), aff'd, 248 Va. 444, 448 S.E.2d 426 (1994);

Parrish v. Commonwealth, 17 Va. App. 361, 365, 437 S.E.2d 215,

217 (1993) (noting that the Commonwealth need not "negate every

possibility" of innocence).   The Commonwealth is "required only

to establish guilt of the accused to the exclusion of a reasonable

doubt."   Bridgeman, 3 Va. App. at 526-27, 351 S.E.2d at 600

(emphasis added).

     In determining the sufficiency of evidence to support a

conviction where a witness' identification is challenged, we

look to the reliability factors enunciated in Neil v. Biggers,

                               - 4 -
409 U.S. 188 (1972), as significant circumstances that may be

considered along with other evidence.   See Charity v.

Commonwealth, 24 Va. App. 258, 262-63, 482 S.E.2d 59, 61 (1997).

These factors include

          the opportunity of the witness to view the
          criminal at the time of the crime, the
          witness' degree of attention, the accuracy
          of the witness' prior description of the
          criminal, the level of certainty
          demonstrated by the witness at the
          confrontation, and the length of time
          between the crime and the confrontation.

Biggers, 409 U.S. at 199-200.

     "[E]vidence of a pre-trial identification is admissible and

may be sufficient to overcome deficiencies existing in an

in-court identification."   Martin v. Commonwealth, 210 Va. 686,

692, 173 S.E.2d 794, 799 (1970).

          An identification made by a victim or an
          eyewitness soon after a crime has been
          committed may be more objective and accurate
          and have greater probative value than one
          made later in court when unduly suggestive
          circumstances, if present, or the changed
          appearance of the defendant, might adversely
          affect the identifier's testimony.
          Moreover, the memory of a witness may fade
          . . . .

Niblett v. Commonwealth, 217 Va. 76, 82, 225 S.E.2d 391, 394

(1976).

     Chung unequivocally identified appellant at trial as the

robber and did not waver when asked whether it was possible

Andrew was the culprit.   Although Kasper and Sheldon, when

pressed, admitted it was possible that Andrew was the robber,

                                - 5 -
neither recanted his identification of appellant from the photo

lineup.   Moreover, there was evidence that appellant's

appearance had changed from the date of the robbery and the date

of trial.

     We cannot say that the Commonwealth's identification

evidence was inherently unreliable.    Nor can we say that the

jury was plainly wrong in believing this evidence.   Accordingly,

the judgment of the trial court will not be disturbed.

                                                          Affirmed.




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