J-S81025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

DWIGHT MOSLEY

                            Appellant                  No. 501 EDA 2016


            Appeal from the Judgment of Sentence December 22, 2015
                In the Court of Common Pleas of Delaware County
               Criminal Division at No(s): CP-23-CR-0002045-2015


BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.:                         FILED JANUARY 23, 2017

        Dwight Mosley appeals from the December 22, 2015 judgment of

sentence entered in the Delaware County Court of Common Pleas following

his jury trial convictions for robbery, aggravated assault, possession of a

firearm prohibited, possession of a controlled substance, and possession of

drug paraphernalia.1 We affirm.

        This case arose out of the December 8, 2014 robbery of Reginald

Glascoe. Mosley was arrested on the night of, and near the scene of, the

robbery.      He filed an omnibus pre-trial motion seeking to suppress the

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
        1
        18 Pa.C.S. §§ 3701(a)(1), 2702(a)(4), and 6105(a)(1), and 35 P.S.
780-113(a)(16) and 780-113(a)(32), respectively. The jury found Mosley
not guilty of attempted homicide, 18 Pa.C.S. § 901.
J-S81025-16



evidence seized and statements made, arguing they were the result of an

illegal detention.   Mosley further argued that the trial court should have

suppressed Glascoe’s out-of-court and in-court identifications.

      After a suppression hearing, the trial court found the following facts

relating to Mosley’s illegal detention claim:

         1. Officer Ricci Pyle is employed with the Chester City
         Police Department and has been so employed since March
         of 2014. Prior to his employment with Chester Police
         Department, Officer Pyle spent 10 years as a police officer
         with Marcus Hook Police Department.

         2. On December 8, 2014, Officer Pyle was working in his
         capacity as a patrolman, in full uniform. At approximately
         12:30a.m., Officer Pyle observed a male at 23rd and
         Madison.    The male was frantically running down the
         street.

         3. Officer Pyle stopped the male to see what was going on.
         The male stated that he was just robbed at gunpoint. The
         robber demanded that he give him money. The robber
         kept demanding that the victim give him more money
         despite the victim telling him it was all he had. The robber
         then pointed the gun at [the victim’s] feet and pulled the
         trigger three times but the gun did not fire and the victim
         ran away.

         4. Officer Pyle transported the victim to his home around
         the corner. The victim stated that the robber was a black
         male in a black hoodie and that he got a good look at his
         attacker and would be able to identify him.

         5. Officer Pyle headed back towards 23rd street and
         observed two subjects walking towards him, one being a
         white female. Officer Pyle circled around the block. When
         Officer Pyle was approximately a house away from where
         the robbery occurred, he again observed the female except
         she was now walking alone.

         6. Officer Pyle exited his vehicle, without initiating any
         lights or sirens, merely to speak with the woman.

                                      -2-
J-S81025-16


         7. As Officer Pyle was crossing the street towards the
         woman, a black male appeared. Officer Pyle asked the
         male where he went from the time he first saw them until
         now. The male, later identified as [Mosley], stated that he
         was urinating in someone’s backyard. [Mosley] told Officer
         Pyle that he didn’t want to pee on the sidewalk.

         8. Officer Pyle decided he was going to arrest [Mosley] for
         disorderly conduct.       [Mosley] verbally provided his
         information to Officer Pyle.

         9. Prior to placing [Mosley] in cuffs, Officer Pyle asked
         [Mosley] if he had anything on his person that he should
         be aware of, to which [Mosley] responded that he had a
         gun.

         10. Officer Pyle asked [Mosley] where the gun was located
         on his person; [Mosley] replied that it was in his pocket.
         Officer Pyle retrieved the weapon.

         11. At this point, with [Mosley] matching the description,
         having a firearm on his person, and being in close vicinity
         to the scene of the robbery, Officer Pyle contacted the
         victim and asked if he could come down for a possible
         identification.

         12. Officer Pyle placed [Mosley] in the back of his patrol
         vehicle.

         13. As Officer Pyle observed another patrol vehicle
         bringing the victim towards the scene, Officer Pyle
         removed [Mosley] from his patrol vehicle and placed
         [Mosley] towards the end of the car.

         14. The victim stayed in the other police vehicle
         approximately twenty feet from [Mosley]; however, a light
         was placed on [Mosley] and the victim made a positive
         identification.

Order, 9/24/2015, at 1-2.    The trial court denied Mosley’s motion and he

proceeded to a jury trial.

      The trial court summarized the evidence presented at trial as follows:

         On December 8, 2014, at approximately 12:00a.m.,
         Reginald Glascoe, “herein Mr. Glascoe” was leaving his

                                    -3-
J-S81025-16


       store and walking back to his home in Chester, Delaware
       County. [N.T., 10/14/2015 p. 28-32]. As Mr. Glascoe was
       walking down the 100 block of East 23rd Street, he ran
       into a female that he recognized. [N.T., 10/14/2015 p.28-
       32]. The female, Ann Marie, was standing in between her
       yard and a neighbor’s yard when she began to strike up a
       conversation with Mr. Glascoe. [N.T., 10/14/2015 p. 29].
       Ann Marie stated that she wanted to go inside the house
       next to where she was staying in order to see her cousin;
       the two entered the house. [N.T., 10/14/2015 p. 29].
       Once inside, the location was completely dark and Mr.
       Glascoe started to feel as though something was wrong.
       [N.T., 10/14/2015 p.29]. Before he had a chance to react,
       another individual, whom Mr. Glascoe could not see at the
       time, put a gun to the back of his head and told him to
       empty his pockets. [N.T., 10/14/2015 p. 29 -30].

       Mr. Glascoe emptied his pockets and the individual with
       the gun took his wallet and the cash in his pocket which
       Mr. Glascoe estimated to be anywhere between $40-$53
       dollars. [N.T., 10/14/2015 p. 30-31]. Unsatisfied with the
       contents of Mr. Glascoe’s pockets, the individual with the
       gun demanded more to which Mr. Glascoe kept repeating
       that he did not have anything else on him.            [N.T.,
       10/14/2015 p. 31]. [Mosley] pulled the trigger aiming
       towards the area of Mr. Glascoe’s feet but the gun did not
       fire. [N.T., 10/14/2015 p.31]. At this point, the individual
       and Mr. Glascoe were facing each other.               [N.T.,
       10/14/2015 p. 31].       The individual was wearing dark
       clothing and a hoodie but Mr. Glascoe could clearly see his
       face. [N.T., 10/14/2015 p. 31-32]. The individual was
       later identified as Dwight Mosley . . . . [N.T., 10/14/2015
       p. 32].

       [Mosley] told Mr. Glascoe to walk outside of the house.
       [N.T., 10/14/2015 p. 33]. Once outside, Mr. Glascoe told
       [Mosley] that he “was just going to have to do what you
       have to do because I’m leaving.[”] [N.T., 10/14/2015 p.
       33].    [Mosley] pulled the trigger on the small black
       revolver a second time, this time pointing the gun in the
       area of Mr. Glascoe’s chest. The two were approximately
       five feet away from each other. [N.T., 10/14/2015 p. 33-
       35]. Mr. Glascoe saw and heard [Mosley] pull the trigger
       of the firearm a second and third time. He could hear the
       spark from the gun; however the gun did not go off.

                                  -4-
J-S81025-16


       [N.T., 10/14/2015 p. 36]. [Mosley] began fiddling with the
       firearm so Mr. Glascoe started running down the middle of
       the street. [N.T., 10/14/2015 p.36].

       Officer Ricci Pyle was working patrol for the City of Chester
       Police Department that evening and was assigned to the
       22 area beat, encompassing the 100 block of East 23rd
       Street. [N.T., 10/14/2015 p. 83]. Around 12:30a.m.,
       Officer Pyle was responding to a 911 emergency call and
       traveling east on East 23rd Street approaching the 100
       block when he observed a male come off the north end of
       the sidewalk in a full sprint, running east down the middle
       of the roadway. [N.T., 10/14/2015 p. 84]. As Officer Pyle
       approached the intersection of East 23rd and Madison
       Avenue, the male was standing on the corner, looking out
       of breath. [N.T., 10/14/2015 p. 84]. Officer Pyle rolled
       down his window and asked the male, who later identified
       himself as Mr. Glascoe, if he was alright. Mr. Glascoe
       responded that he had just been robbed.                [N.T.,
       10/14/2015 p. 84]. Officer Pyle pulled his car off to the
       side and got out in order to speak with Mr. Glascoe. [N.T.,
       10/1/42015 p. 84].

       Mr. Glascoe advised Officer Pyle what had transpired at the
       residence on the 100 block of East 23rd Street. [N.T.,
       10/14/2015 p. 37]. Mr. Glascoe informed Officer Pyle the
       man who robbed him was a black male wearing a black
       hoody, had a gun, and was located on the 100 block of
       East 23rd Street. [N.T., 10/14/2015 p. 85, 86]. Officer
       Pyle took Mr. Glascoe back to the area and Mr. Glascoe
       pointed out a residence numbered 107 as the exact
       location where it happened. [N.T., 10/14/2015 p. 38].
       Officer Pyle took [Mr. Glascoe] home to his residence on
       Madison Street. [N.T., 10/14/2015 p. 38]. Mr. Glascoe
       told Officer Pyle that he would be able to identify who
       robbed him. [N.T., 10/14/2015 p. 88].

       After dropping Mr. Glascoe off, Officer Pyle returned to the
       area, traveling east on 23rd Street in his patrol vehicle; he
       could see two people off in the distance in the middle of
       the street walking west towards his car.               [N.T.,
       10/14/2015 p. 88]. As he got closer to the individuals,
       Officer Pyle observed the two walk toward the north
       sidewalk. [N.T., 10/14/2015 p. 88]. When Officer Pyle
       reached the area where the two were walking, he only

                                   -5-
J-S81025-16


       observed one person, a white female. [N.T., 10/14/2015
       p. 89]. Officer Pyle drove around the block and stopped
       on the corner of Crosby Street and East 23rd Street.
       [N.T., 10/14/2015 p. 89].       After sitting there for
       approximately five-to-ten seconds, Officer Pyle observed
       the white female reappear, walking towards his general
       direction on the south side of East 23rd Street. [N.T.,
       10/14/2015 p. 89].

       Officer Pyle exited his vehicle to ask the female some
       questions as she was in the area of the robbery. [N.T.,
       10/14/2015 p. 89]. As he was crossing East 23rd Street, a
       black male appeared from the east, the area where Officer
       Pyle originally saw the two individuals walking. [N.T.,
       10/14/2015 p. 90]. Officer Pyle asked the male, later
       identified as [Mosley], where he disappeared to from the
       first time Officer Pyle saw them. [N.T., 10/14/2015 p. 91].
       [Mosley] responded that he went into a rear yard to
       urinate. [N.T., 10/14/205 p. 91]. The woman provided
       that her name was Ann Marie Borkey. [N.T., 10/14/2015
       p. 91]. Ann Marie stated that she lived at 103 East 23rd
       Street, the residence next to 107. [N.T., 10/14/2015 p.
       92]. Officer Pyle asked [Mosley] why he would urinate in
       someone’s yard as opposed to using a bathroom; [Mosley]
       did not really answer. [N.T., 10/14/2015 p. 93]. At this
       time, Officer Pyle determined that he was going to place
       [Mosley] under arrest for public urination and disorderly
       conduct. [N.T., 10/14/2015 p. 32].

       Prior to placing him into custody, Officer Pyle asked
       [Mosley] if he had anything on his person that Officer Pyle
       should know about. [N.T., 10/14/2015 p. 93]. [Mosley]
       advised Officer Pyle that he “found the gun.”        [N.T.,
       10/14/2015 p. 93]. Officer Pyle retrieved a small black
       revolver from [Mosley’s] person. [N.T., 10/14/2015 p.
       93]. [Mosley] then told Officer Pyle that he had the gun
       for Ann Marie. [N.T., 10/14/2015 p. 93]. After securing
       the firearm, Officer Pyle observed three empty chambers
       and two live rounds still left in the five barrel chamber.
       [N.T., 10/14/2015 p. 95]. Knowing the description of the
       male involved in the robbery, the woman being named Ann




                                  -6-
J-S81025-16


           Marie,[2] her residence being next to the scene of the
           robbery, the firearm matching the description and three
           missing bullets matching Mr. Glascoe’s explanation of what
           happened, and the two individuals walking around the area
           of the crime, Officer Pyle told [Mosley] that he had reason
           to believe he was involved in a robbery and that he would
           have to remain here for possible identification from the
           victim. [N.T., 10/14/2015 p. 96]. In addition to the being
           in possession of the firearm, [Mosley] also had $42 dollars
           of loose cash on him. [N.T., 10/14/2015 p. 98].

           Officer Matthew Steward was also on patrol for Chester
           City Police Department that evening. [N.T., 10/14/2015 p.
           75].   Responding to a radio call from Officer Pyle in
           regards to a robbery, Officer Steward responded to the
           100 block of East 23rd Street. [N.T., 10/14/2015 p. 76].
           When Officer Steward arrived on scene, Officer Pyle had a
           subject stopped and had recovered a firearm.        [N.T.,
           10/14/2015 p. 76]. Officer Pyle directed Officer Steward
           to make contact with Mr. Glascoe and transport him back
           to the scene for a possible identification.         [N.T.,
           10/14/20I5 p. 76].

           Officer Steward made contact with Mr. Glascoe and picked
           up him at his residence on Madison Street, approximately
           thirty minutes after Officer Pyle had originally dropped him
           off. [N.T., 10/14/2015 p. 77, 38]. Mr. Glascoe got in the
           back of Officer Steward’s marked patrol vehicle and the
           two drove back to Officer Pyle's location.             [N.T.,
           10/14/2015 p. 77]. When they arrived, Officer Steward
           turned on his spotlight so Mr. Glascoe could see the
           suspect who was approximately 10-to-12 feet from the
           patrol vehicle. [N.T., 10/14/2015 p. 78]. Mr. Glascoe
           made a positive identification, without hesitation in his
           voice, within a matter of seconds. [N.T., 10/14/2015 p.
           78]. According to Mr. Glascoe, even though the entire
____________________________________________


       2
        Glascoe did not tell Officer Pyle that a female had been involved in
the incident. N.T., 4/27/16, at 100. Therefore, at the suppression hearing,
Officer Pyle did not testify that Mr. Glascoe had told him about the encounter
with this female and, at the time of the stop, he did not know that a female
named Ann Marie was involved in the incident.



                                           -7-
J-S81025-16


           robbery occurred within a matter of minutes, he stared at
           [Mosley’s] face and the gun pointed at him for what
           seemed like an eternity. [N.T., 10/14/2015 p. 39-40].
           From the time Officer Pyle encountered Mr. Glascoe until
           the positi[ve] identification, the whole situation was
           approximately thirty-five minutes. [N.T., 10/14/2015 p.
           101]. After pointing out [Mosley] to the officers, Mr.
           Glascoe went to Chester Police Station to write a
           statement. [N.T., 10/14/2015 p. 41].

Opinion, 4/27/16, at 1-6 (“1925(a) Op.”) (brackets around citations in

original). The trial court further noted that detective Louis Grandizio of the

Delaware County Criminal Investigative Division was offered and accepted as

an expert in firearms, firearm identification, and tool-markings. 1925(a) Op.

at 7.      Detective Grandizio prepared a report, which was marked as an

exhibit.    Id.   Detective Grandizio tested the firearm found on Mosley and

found it to be operable.     He further tested the two cartridges that were

located inside the firearm and identified the cartridges by manufacturer and

caliber.    Detective Grandizio explained that “with only two cartridges in a

five chamber revolver, theoretically the trigger could be pulled three times

with no cartridge actually being fired.” Id.

        In addition, the Commonwealth and Mosley stipulated that, if called to

testify: (1) Corporal Weigand would testify that he completed a search of

Mosley in the jail cell of the Chester Police Department and located four bags

of crack cocaine, and that a proper chain of custody has been established as

to the narcotics; and (2) a lab technician from the Pennsylvania State Police

Lab would testify that the substance tested positive to be cocaine. Id.




                                      -8-
J-S81025-16



       The   jury    found    Mosley    guilty   of   robbery,   aggravated   assault,

possession of a controlled substance, and possession of drug paraphernalia.

The jury found Mosley not guilty of attempted homicide.              The jury further

found, in response to a fact question, that Mosley possessed a firearm

beyond a reasonable doubt. The jury was then asked whether Mosley was

guilty of possession of a firearm prohibited and found him guilty.

       On December 22, 2015, the trial court sentenced Mosley to an

aggregate sentence of 180 to 360 months’ incarceration plus 4 years’

consecutive probation.3         On December 30, 2015, Mosley filed a post-

sentence motion, arguing that the verdict was against the weight of the

evidence, requesting that the trial court reconsider its order denying

Mosley’s pre-trial motions, and seeking reconsideration of his sentence. On

January 13, 2016, the trial court denied this motion.

       On February 11, 2016, Mosley filed a timely notice of appeal.             That

same day, the trial court entered an order directing Mosley to file a

Pennsylvania Rule of Appellate Procedure 1925(b) statement.                   Mosley’s

____________________________________________


       3
         The trial court imposed a sentence of 120 to 240 months’
incarceration for the robbery conviction; 60 to 120 months’ incarceration for
the conviction for possession of firearm prohibited, consecutive to the
sentence imposed for the robbery conviction; 24 to 48 months’ incarceration
for the aggravated assault conviction, concurrent to the other sentences; 3
years’ consecutive probation for the conviction for possession of a controlled
substance; and 1 year consecutive probation for the conviction for
possession of drug paraphernalia.




                                           -9-
J-S81025-16



counsel requested an extension of time to file a 1925(b) statement, which

the trial court granted. Counsel then filed a petition to appoint counsel4 and

a second request for an extension of time.             The trial court appointed new

counsel and granted an extension.              On April 7, 2016, new counsel filed a

Rule 1925(b) statement.

       Mosley raises the following issues on appeal:

            1. Did the trial court abuse its discretion and/or commit
            [an] error of law by denying [Mosley’s] motion to suppress
            the weapon and statements made to the officer, where no
            reasonable suspicion existed for the stop for the crimes
            with which [Mosley] was ultimately charged, and any
            statements were coerced as he was subject to custodial
            interrogation without being advised of the Miranda[5]
            warnings?

            2. Did the trial court abuse its discretion and/or commit
            [an] error of law by denying [Mosley’s] request to preclude
            the witness’s out of court identification, where the
            identification procedures used were overly suggestive and
            in violation of [Mosley’s] due process rights under U.S. v.
            Wade[6] and subsequent holdings, as [Mosley] was taken
            to the station and presented to the alleged victim alone for
            the purpose of being identified?


____________________________________________


       4
         The petition to appoint counsel stated that current counsel had a
conflict of interest because “[i]t is believed that an essential Commonwealth
witness was represented by the Delaware County Public Defender’s Office.
This information was recently discovered.” Pet. to Appoint Counsel, filed
3/14/16, at ¶ 8.
       5
           Miranda v. Arizona, 384 U.S. 436 (1966).
       6
           388 U.S. 218 (1967).




                                          - 10 -
J-S81025-16


            3. Did the trial court abuse its discretion and /or commit
            [an] error of law by invoking the mandatory minimum
            sentence, as it was unconstitutional under the Alleyne[7]
            decision in that it allowed the imposition of a mandatory
            minimum sentence based on findings of the sentencing
            judge by a preponderance of the evidence?

            4. Was the verdict against the weight and sufficiency of the
            evidence where the Commonwealth’s witness testimony
            was wildly inconsistent and incredible, as he was unable to
            describe the perpetrator’s clothing despite telling the
            investigating officer that “[y]es I got a good look at him,”
            and as it consisted of three different versions of the
            location where the robbery took place?

            5. The verdict was against the weight and sufficiency of
            the evidence where, unbeknownst to defense counsel, the
            Commonwealth’s material witness had a previous recent
            conviction for a crimen falsi offense (see CP-23-CR-
            0004705-2012), and was not subjected to impeachment
            for said offense causing actual prejudice to [Mosley].

Mosley’s Br. at 4-5.

       Mosley first argues that Officer Pyle lacked reasonable suspicion to

stop and search Mosley and that the trial court erred when it failed to

suppress the weapon found by Officer Pyle as fruit of this unlawful stop and

search.     Mosley’s Br. at 10.      Mosley maintains that the vague description

provided by Glascoe of a male in a hoodie and jeans failed to provide

reasonable suspicion to stop Mosley.           Id. at 11. Mosley also argues that,

even if Officer Pyle had reasonable suspicion to stop him, the trial court

should have suppressed his statement that he “found a gun” and the gun

itself because the statements were coerced. Id. at 13. He claims he was
____________________________________________


       7
           United States v. Alleyne, 133 S.Ct. 2151 (2013).



                                          - 11 -
J-S81025-16



subject to a custodial interrogation, but was not provided his Miranda

warnings. Id.

      When reviewing a denial of a suppression motion, we must determine

whether the record supports the trial court’s factual findings and whether the

legal conclusions drawn from those facts are correct.     Commonwealth v.

Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013).            We may only consider

evidence presented at the suppression hearing. In re L.J., 79 A.3d 1073,

1085-87 (Pa. 2013). In addition, because the Commonwealth prevailed in

the suppression court, we consider only the Commonwealth’s evidence and

so much of the defense evidence “as remains uncontradicted when read in

the context of the record as a whole.”       Brown, 64 A.3d at 1104 (quoting

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010)). We may

reverse only if the legal conclusions drawn from the facts are in error. Id.

      The law recognizes three distinct levels of interaction between police

officers and citizens: (1) a mere encounter; (2) an investigative detention;

and (3) a custodial detention.   See Commonwealth v. Jones, 874 A.2d

108, 116 (Pa.Super. 2005).

      “A mere encounter can be any formal or informal interaction between

an officer and a citizen, but will normally be an inquiry by the officer of a

citizen.   The hallmark of this interaction is that it carries no official

compulsion to stop or respond,” Commonwealth v. DeHart, 745 A.2d 633,

636 (Pa.Super. 2000) (internal citations and quotations omitted), and




                                    - 12 -
J-S81025-16



therefore   need   not    be   justified   by   any   level   of   police   suspicion.

Commonwealth v. Polo, 759 A.2d 372, 375 (Pa. 2000).

      “In contrast, an investigative detention . . . carries an official

compulsion to stop and respond.”            DeHart, 745 A.2d at 636 (internal

quotation marks omitted). Because “this interaction has elements of official

compulsion it requires reasonable suspicion of unlawful activity.”                 Id.

(internal quotation marks omitted).

      Finally, “a custodial detention occurs when the nature, duration and

conditions of an investigative detention become so coercive as to be,

practically speaking, the functional equivalent of an arrest.” Id. This level

of interaction requires that the police have probable cause to believe that

the   person   detained    “has    committed     or   is   committing       a   crime.”

Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa.Super. 2011)

(quoting Commonwealth v. Williams, 2 A.3d 611 (Pa.Super. 2011) (en

banc)).

      Following a hearing, the trial court made the factual findings as stated

above, supra at 2-3, which are supported by the record.               The trial court

further stated in its conclusions of law:

          5. Here, the initial interaction between Officer Pyle and
          [Mosley] was a mere encounter. [Mosley] was free to
          leave when Officer Pyle approached him.            As such,
          [Mosley] was not entitled to Miranda warnings prior to
          Officer Pyle speaking with him. [Mosley] volunteered that
          he was urinating in a public place. At this moment, Officer
          Pyle was well within his power to cite or arrest [Mosley] for
          a summary offense and to inquire about weapons, as he
          was being placed into cuffs.

                                       - 13 -
J-S81025-16


           6. Once Officer Pyle legally obtained the firearm, coupled
           with the information he had about the robbery that
           occurred in the exact same area a short time prior, Officer
           Pyle had reasonable suspicion that criminal activity was
           afoot. With the victim’s positive identification, Officer Pyle
           also had probable cause to arrest for the robbery in
           addition to the disorderly conduct.

Order, 9/24/15, at 3. We agree with the trial court.

       When Officer Pyle approached the female, who was in the vicinity of a

recent robbery, and Mosley appeared, the interaction was a mere encounter,

and no level of suspicion was required.            Officer Pyle made no verbal

commands and did not impede Mosley’s movement. See Commonwealth

v. Guess, 53 A.3d 895, 897-98, 901 (Pa.Super. 2012) (finding initial

approach and questioning was mere encounter where officers responded to

report of attempted burglary by two black males, one wearing a white t-shirt

and one wearing black jacket and where officers approached two males and

asked whether they lived there and whether officer could speak with them).

After Mosley informed Officer Pyle that he had just urinated in someone’s

backyard, and Officer Pyle was prepared to issue a citation for disorderly

conduct,8 he could conduct a pat down search prior to placing Mosley into

____________________________________________


       8
         Officer Pyle testified that he decided to cite Mosley for disorderly
conduct. N.T., 9/21/15, at 18. Whether he would issue a citation at the
scene or bring the individual to the police station depended on whether he
had more citations in his vehicle. Id. at 19. However, even if Officer Pyle
planned to issue the citation at the scene, he would have conducted a pat-
down search for safety and place the individual in the police cruiser while
writing the citation. Id. at 19-20.




                                          - 14 -
J-S81025-16



custody.9 Further, a pat-down search may include attendant questions, such

as whether the individual has any weapons on his person.                   See

Commonwealth v. Kondash, 808 A.2d 943, 948 (Pa.Super. 2002) (noting

that “even during a custodial interrogation, the requirements of Miranda will

be excused where police have reason to fear for their well-being and ask

questions to ensure their safety and not to elicit incriminating responses”);

see also Commonwealth v. Pakacki, 901 A.2d 983, 988 (Pa. 2006)

(concluding that frisk and “moderate number of questions” are not functional

equivalent of arrest).        Accordingly, the Trial Court properly declined to

suppress the gun and Mosely’s statements.

       Mosley next claims the trial court erred or abused its discretion when it

denied his motion to preclude Glascoe’s out-of-court identification. Mosley’s

Br. at 15. He claims the one-on-one identification was unduly suggestive.

Id. at 16. Mosley further claims the in-court identification was inadmissible
____________________________________________


       9
          Recently, this Court stated in dicta that public urination may not
always establish that an individual has committed the summary offense of
disorderly conduct.     Commonwealth v. Vetter, 149 A.3d 71, 76-77
(Pa.Super. 2016). We stated that the Commonwealth had not presented
evidence to demonstrate “how, under the specific facts of this case, where
[the appellant] appeared to be urinating at the side of a highway, in the dark
of night, in a snow storm, away from any residence or businesses,
positioning himself such that he was largely protected from view, such action
was likely to lead to tumult and disorder.” Id. at 77. Here, Officer Pyle had
probable cause to believe that the crime of disorderly conduct may have
been committed because Mosley admitted to urinating in someone’s
backyard.     See Commonwealth v. Williams, 568 A.2d 1281, 1288
(Pa.Super. 1990) (finding arrest and search incident to arrest for public
urination proper where officer observed appellant urinating on a building).



                                          - 15 -
J-S81025-16



because there was no independent basis for the identification as Glascoe

provided different descriptions of the perpetrator and the identification

occurred in the same vicinity as the crime, while Mosley was handcuffed and

standing outside a police car.

      To determine whether an out-of-court identification should have been

suppressed, this Court has stated:

         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. 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. The corrupting effect of the
         suggestive identification, if any, must be weighed against
         these factors. 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.

Commonwealth v. Hale, 85 A.3d 570, 574 (Pa.Super. 2014) (quoting

Commonwealth v. Wade, 33 A.3d 108, 114 (Pa.Super. 2011)) (internal

citations and quotation marks omitted), aff’d, 128 A.3d 781 (Pa. 2015).

      The trial court found:

         Here, the robbery occurred a short time prior to the
         identification; the victim told Officer Pyle that he had a
         clear look at the robber and that he could identify him
         again. In addition, [Mosley] was not in the police cruiser
         when the identification took place. Furthermore, pursuant
         to the preliminary hearing testimony incorporated at the
         suppression hearing, the victim did not even know if
         [Mosley] was in cuffs during the identification. This Court

                                     - 16 -
J-S81025-16


            finds there was no evidence to suggest that the
            identification of [Mosley] by the victim was so
            impermissibly suggestive as to give risk to an irreparable
            likelihood of misidentification.

Order, 9/28/15, at 4. This was not an error of law or an abuse of discretion.

See Hale, 85 A.3d at 575 (out-of-court identification admissible where

police brought appellant, who was handcuffed, to victim’s home where

robbery occurred, reasoning: (1) appellant held a gun in victim’s face and

forced her to hide her face at various points, but victim observed appellant’s

face on multiple occasions throughout five-minute robbery, (2) room was

not fully illuminated, but victim’s television provided sufficient lighting during

the robbery, and (3) victim refused to identify another individual as assailant

before she recognized appellant); Commonwealth v. Armstrong, 74 A.3d

228, 238-39 (Pa.Super. 2013) (out-of-court identification admissible where

victim was able to see defendant when she first pulled up window shade and

again after she called police, she described individual with “a white hoody on

and a coat and a crow bar in his hand,” and less than ten minutes later,

police drove her to see someone they had picked up running through the

apartment complex), aff’d on other grounds, 107 A.3d 735 (Pa. 2014).10


____________________________________________


       10
        The Pennsylvania Supreme Court granted an appeal in Armstrong
to address whether 42 Pa.C.S. § 9714(a)(2) requires prior sentencing as a
second-strike offender to invoke the third-strike provision. The Supreme
Court affirmed as to this issue but stated, “[w]e express no opinion
concerning the Superior Court’s treatment of any other issue.”
Commonwealth v. Armstrong, 107 A.3d 735, 736 (Pa. 2014).



                                          - 17 -
J-S81025-16



      In his third issue, Mosley argues that the trial court erred when it

sentenced him to a mandatory minimum sentence. Mosley’s Br. at 17-18.

This claim lacks merit.

      Mosley’s claim that the imposition of a mandatory minimum sentence

violated Alleyne challenges the legality of his sentence. Commonwealth

v. Barnes, --- A.3d ----, 2016 WL 7449232, at *5 (Pa. Dec. 28, 2016).

Challenges to the legality of a sentence raise questions of law, for which this

court’s standard of review is de novo and our scope of review is plenary.

Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014).

      The trial court sentenced Mosley to a mandatory minimum sentence

pursuant to 42 Pa.C.S. § 9714(a)(1), which provides:

         Any person who is convicted in any court of this
         Commonwealth of a crime of violence shall, if at the time
         of the commission of the current offense the person had
         previously been convicted of a crime of violence, be
         sentenced to a minimum sentence of at least ten years of
         total confinement, notwithstanding any other provision of
         this title or other statute to the contrary. Upon a second
         conviction for a crime of violence, the court shall give the
         person oral and written notice of the penalties under this
         section for a third conviction for a crime of violence.
         Failure to provide such notice shall not render the offender
         ineligible to be sentenced under paragraph (2).

42 Pa.C.S. § 9714(a)(1).

      In Alleyne, the United States Supreme Court held that “[a]ny fact

that, by law, increases the penalty for a crime is an ‘element’ that must be

submitted to the jury and found beyond a reasonable doubt.” 133 S.Ct. at

2155. However, as noted by this Court, the “Supreme Court has recognized


                                    - 18 -
J-S81025-16



a narrow exception to this rule for prior convictions.”         Commonwealth v.

Bragg, 133 A.3d 328, 333 (Pa.Super. 2016); accord Alleyne, 133 S.Ct. at

2160 n.1.      Further, this Court has concluded that section 9714 is not

unconstitutional pursuant to Alleyne, because it provides for mandatory

minimum sentences based on prior convictions. Bragg, 133 A.3d at 33311;

Commonwealth v. Reid, 117 A.3d 777, 785 (Pa.Super. 2015).

       Because the imposition of a mandatory minimum sentence was based

on a prior conviction, the sentence was constitutional.

       In Mosley’s fourth issue, he claims that the verdict was against the

weight of the evidence and there was insufficient evidence to support the

guilty verdict.    He claims the victim did not know Mosley and did not see

Mosley’s face, as the assailant approached the victim from behind and there

was poor lighting.      Mosley’s Br. at 20.        The victim stated he did not see

Mosley’s face for long and testified that the suspect was wearing a “black

hoodie, I guess,” but did not know what other clothing the suspect was

wearing. Id. Further, although the victim’s written statement maintained

____________________________________________


       11
          On August 4, 2016, the Pennsylvania Supreme Court granted a
petition for allowance of appeal in Bragg to review the following question:
“Should the mandatory minimum sentence imposed by the trial court under
42 Pa.C.S.A. § 9714 be vacated, and this matter remanded for a new
sentencing hearing, due to the fact that § 9714 is unconstitutional as
currently drafted?” Order, Commonwealth v. Bragg, 143 A.3d 890 (Pa.
2016). As of the date of this memorandum, the Supreme Court has not yet
issued an opinion in Bragg.




                                          - 19 -
J-S81025-16



the attack happened outside while he was walking home, at the preliminary

hearing and at trial he stated the robbery occurred inside a house. Id.12

       This Court reviews a weight of the evidence claim for an abuse of

discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “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. (quoting Commonwealth v. Widmer 744 A.2d 745, 753 (Pa.

2000)). “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.” Id.

       A trial court should not grant a motion for a new trial “because of a

mere conflict in the testimony or because the judge on the same facts would

have arrived at a different conclusion.”           Clay, 64 A.3d at 1055.        “Rather,
____________________________________________


       12
        Although Mosley purports to challenge both the sufficiency and the
weight of the evidence, the argument challenges only the weight of the
evidence, as it alleges the victim’s testimony was not credible. Further,
Mosley fails to indicate what element, if any, the evidence was insufficient to
support. Accordingly, to the extent he attempts to raise a sufficiency
challenge, that claim is waived. See Commonwealth v. Garland, 63 A.3d
339, 344 (Pa.Super. 2013) (claim not preserved where failed to specify
element     or    elements   upon    which     evidence   was    insufficient);
Commonwealth v. Santiago, 980 A.2d 659, 662 n.3 (Pa.Super. 2009)
(claim waived when appellant fails to include argument to support issue).



                                          - 20 -
J-S81025-16



‘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. (quoting

Widmer, 744 A.2d at 752). Courts have stated that “a new trial should be

awarded when the jury’s verdict is so contrary to the evidence as to shock

one’s sense of justice and the award of a new trial is imperative so that right

may    be   given   another    opportunity    to   prevail.”     Id.    (quoting

Commonwealth v. Brown, 648 A.2d 1177, 1090 (Pa. 1994)).

      The trial court concluded:

         In number 4 and 5 of his 1925(b) Statement, [Mosley]
         alleges that the verdict was against the weight of the
         evidence as Mr. Glascoe’s testimony was incredible and
         that defense counsel was unaware of his conviction for a
         crime of crimen falsi, docketed as 4075-2012. The jury
         heard Mr. Glascoe’s version of the events that transpired.
         They also heard counsel for [Mosley] cross-examine Mr.
         Glascoe on any inconsistencies between his testimony and
         his first statement to police, marked as C-3. Counsel for
         [Mosley] also pointed out any inconsistencies between [Mr.
         Glascoe’s] testimony and his prior testimony at the
         preliminary hearing. Counsel went through the testimony
         line-by-line pointing out what he thought to be
         inconsistences between the testimonies. The jury weighed
         the evidence, listened to Mr. Glascoe explain his answers
         to counsel’s questions, and determined that he was a
         credible witness. At best, the minor inconsistences elicited
         by counsel for [Mosley] were not enough to damage Mr.
         Glascoe’s credibility and certainly do not shock one[’]s
         sense of justice. As such, [Mosley’s] claim is without
         merit.

1925(a) Op. at 11. The trial court did not abuse its discretion in finding the

verdict did not shock the conscience and in finding the claim meritless.



                                     - 21 -
J-S81025-16



       Mosley’s final issue is based on the claim that the Commonwealth

violated Brady v. Maryland, 373 U.S. 83 (1963), because it failed to

disclose    that   Glascoe    had,    in   2012,    pled   guilty   to   providing   false

identification to law enforcement, a crime involving dishonesty or false

statement. Mosley’s Br. at 21. He claims this deprived him of a meaningful

chance to cross-examine Glascoe on the conviction and that he suffered

prejudice as a result of the Commonwealth’s failure to disclose. Id.13

       Our Supreme Court has stated:

            Under Brady, “a prosecutor has an obligation to disclose
            all exculpatory information material to the guilt or
            punishment of an accused, including evidence of an
            impeachment nature.” Commonwealth v. Spotz [610
            Pa. 17], 18 A.3d 244, 275–76 (Pa.2011) (citation omitted).
            To establish a Brady violation, appellant must
            demonstrate: the evidence at issue was favorable to him,
            because it was either exculpatory or could have been used
            for impeachment; the prosecution either willfully or
            inadvertently suppressed the evidence; and prejudice
            ensued. Id., at 276 (citation omitted). “The evidence at
            issue must have been ‘material evidence that deprived the
            defendant of a fair trial.’ . . . ‘Favorable evidence is
            material . . . if there is a reasonable probability that, had
            the evidence been disclosed to the defense, the result of
            the proceeding would have been different.’” Id. (citations
            omitted).

Commonwealth v. Solano, 129 A.3d 1156, 1170 (Pa. 2015) (quoting

Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1, 9 (2011) (omissions in

____________________________________________


       13
       Mosley frames this issue as both a sufficiency of the evidence claim
and a weight of the evidence claim. His argument, however, raises a Brady
claim.



                                           - 22 -
J-S81025-16



original)).   An appellant may not establish a Brady violation “when the

appellant knew, or with reasonable diligence, could have uncovered the

evidence in question,” Commonwealth v. Bomar, 104 A.3d 1179, 1189

(Pa. 2014) (quoting Commonwealth v. Paddy, 15 A.3d 431, 451 (Pa.

2011)), or where the parties had equal access to the information,

Commonwealth v. Grant, 813 A.2d 726, 730 (Pa. 2002).

       Following Mosley’s sentencing, counsel from the public defender’s

office14 filed a motion to withdraw alleging he had a conflict of interest

because the public defender’s office previously represented a witness in the

case. The sole non-police officer witness at trial was Glascoe.    Therefore,

Mosley’s counsel had the information the prosecution allegedly withheld, that

is, that Glascoe pled guilty to providing false identification in 2012. Mosley

has not established that he could not have uncovered the evidence with

reasonable diligence. See Grant, 813 A.2d at 730 (finding appellant failed

to establish Brady claim where he did not explain why “public defender

could not have procured” information about witness’s prior conviction and




____________________________________________


       14
          Mosely was represented by counsel from the public defender’s office
at trial. Different counsel from the public defender’s office represented
Mosley after the filing of the notice of appeal. The second counsel filed the
petition to withdraw.




                                          - 23 -
J-S81025-16



status as parolee “before or during trial”).15     Accordingly, Mosley’s Brady

claim fails.16

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/23/2017




____________________________________________


       15
         It further appears the parties may have had equal access to the
information. See Grant, 813 A.2d at 730 (noting parties may have had
equal access to evidence of witness’s past convictions and status as
parolee).
       16
        Whether Mosley has a viable ineffective assistance of counsel claim,
which he could raise in a PCRA petition, is a question for another day. See
Grant, 813 A.3d at 730.



                                          - 24 -
