J-A04005-19

                                2019 PA Super 143


 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 CHRISTOPHER RUSSELL                      :
                                          :
                    Appellant             :   No. 1291 EDA 2017

           Appeal from the Judgment of Sentence August 9, 2010
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0011005-2009,
            CP-51-CR-0011006-2009, CP-51-CR-0011011-2009,
            CP-51-CR-0011012-2009, CP-51-CR-0011013-2009,
            CP-51-CR-0011030-2009, CP-51-CR-0011090-2009,
                         CP-51-CR-0011091-2009


BEFORE: LAZARUS, J., KUNSELMAN, J., and COLINS, J.*

OPINION BY LAZARUS, J.:                                 FILED MAY 03, 2019

      Christopher Russell appeals from the judgment of sentence, entered in

the Court of Common Pleas of Philadelphia County, after a jury found him

guilty of multiple counts of aggravated assault, robbery and related offenses.

Upon careful review, we affirm.

      During the time period of September 2008 through March 2009, Russell

engaged in a string of violent robberies against nine victims, most of them

elderly women, whom he had followed to their homes.            Russell typically

approached the women from behind, violently assaulted them, stole their

handbags, and fled.     All of the victims were able to provide a physical

description of their assailant to the police, and many were able to describe the

vehicle in which he fled from the scene. Russell’s DNA was found on a cell



*Retired Senior Judge assigned to the Superior Court.
J-A04005-19



phone dropped at the scene of one robbery, and the phone contained names

and phone numbers contained in other phones owned by Russell.            A bank

statement belonging to one of the victims was found in the trash outside

Russell’s home. When Russell was arrested, he was wearing a cap identical

to one that two victims described their assailant as having worn.

        On June 21, 2010, a jury found Russell guilty of eight counts of

aggravated assault,1 nine counts of robbery,2 seven counts of burglary,3 and

one count of possession of marijuana.4 On August 9, 2010, the trial court

sentenced Russell to an aggregate term of 63 to 126 years’ incarceration.

Russell appealed to this Court, which affirmed his judgment of sentence on

July 16, 2012; the Pennsylvania Supreme Court denied allowance of appeal.

On April 2, 2014, Russell filed a timely first petition under the Post Conviction

Relief Act (“PCRA”); counsel was appointed and filed an amended petition

seeking reinstatement of Russell’s appellate rights nunc pro tunc.5 The PCRA


____________________________________________


1   18 Pa.C.S.A. § 2702(a).

2   18 Pa.C.S.A. § 3701(a).

3   18 Pa.C.S.A. § 3502(a).

4   35 P.S. § 780-113(a)(31).

5 On direct appeal, this Court found both of Russell’s appellate claims waived
because the notes of testimony from trial were not made part of the certified
record on appeal.        In his amended PCRA petition, Russell claimed
ineffectiveness on the part of appellate counsel for failing to ensure the
certified record was complete. The Commonwealth did not object to the grant
of PCRA relief.

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court granted relief and Russell filed this timely appeal, nunc pro tunc,

followed by a court-ordered statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).            He raises the following claims for our

consideration:

       1. Whether the judgment of sentence must be vacated in light of
       Alleyne [v. United States, 570 U.S. 99 (2013),] and its progeny
       as the Commonwealth invoked a mandatory penalty under 42
       Pa.C.S. § 9717 at sentencing?

       2. Whether the evidence was sufficient to support the convictions
       for aggravated assault as the evidence neither established that
       the victims suffered serious bodily injury nor that Mr. Russell
       intended to cause the same?

       3.    Whether a new trial must be ordered because the
       Commonwealth improperly joined the charge of possession of
       marijuana with the other transcripts in this case and in any event
       had no right to a jury trial for that charge?

       4. Whether the evidence was in any event insufficient to support
       a conviction for possession of marijuana as the Commonwealth
       did not prove each and every element of the crime?

       5. Whether the trial court erred in denying the motion to suppress
       identification insofar as the procedure utilized by law enforcement
       was unduly suggestive and violative of the Pennsylvania and
       United States Constitutions?

Brief of Appellant, at 8-9.6

       Russell first claims that his judgment of sentence must be vacated

pursuant to Alleyne, as the Commonwealth sought a mandatory minimum

____________________________________________


6 In his statement of questions involved, Russell also raises a challenge to the
discretionary aspects of his sentence. However, in the argument section of
his brief, Russell concedes that he has waived that argument because prior
counsel failed to file a post-sentence motion raising the claim.



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sentence under section 9717 of the Sentencing Code, which imposes

mandatory minimum sentences in certain cases where the victim is over the

age of 60.7 Russell was convicted of six counts of aggravated assault involving

victims over the age of 60. For the following reasons, he is entitled to no

relief.8



____________________________________________


7   Specifically, section 9717 provides, in relevant part:

        (a) Mandatory sentence.--A person under 60 years of age
        convicted of the following offenses when the victim is over 60
        years of age and not a police officer shall be sentenced to a
        mandatory term of imprisonment as follows:

           18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated
           assault)--not less than two years.

42 Pa.C.S.A. § 9717(a).
8 The trial court incorrectly asserts that Alleyne is not applicable to Russell’s
case because his original direct appeal concluded on May 29, 2013 and, thus,
preceded Alleyne, which has been held to apply retroactively only to cases
pending on direct appeal at the time it was decided. Our Supreme Court has
previously held that, where a direct appeal nunc pro tunc is granted, the
conviction in question was never “final” for purposes of determining whether
the litigant is entitled to the benefit of a new rule of law announced subsequent
to his conviction. See Commonwealth v. Johnson, 304 A.2d 139, 141 (Pa.
1973). Thus, as the Commonwealth concedes, Russell would be entitled to
the benefit of Alleyne, as his appellate rights were reinstated, nunc pro tunc,
and his judgment of sentence, therefore, was not final at the time Alleyne
was decided.

The trial court also finds Alleyne inapplicable because, like the fact of a prior
conviction, the “aggravating fact” of a victim’s age is “a black and white,
objective fact.” Trial Court Opinion, 3/19/18, at 14. However, as the
Commonwealth also concedes, this interpretation impermissibly extends the
holding of Alleyne, which applies to “[a]ny fact that, by law, increases the
penalty for a crime[.]” Alleyne, 570 U.S. at 103 (emphasis added).

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     Here, the trial court explicitly stated that it did not sentence Russell

under the mandatory minimum statute, but rather, sentenced him in

accordance with the Sentencing Guidelines. See Trial Court Opinion, 3/19/18,

at 14-15, citing N.T. Sentencing, 8/9/10, at 3-4, 12, 16-18.       We have

previously held that, where a trial court imposes sentence in accordance with

the guidelines and does not sentence in accordance with a mandatory

minimum sentencing scheme, an appellant is not entitled to relief under

Alleyne.

     In Commonwealth v. Samuel, 102 A.3d 1001 (Pa. Super. 2014), the

defendant was convicted of drug trafficking offenses.    At the time of his

sentencing, 18 Pa.C.S.A. § 7508 provided for mandatory minimum sentences

for drug trafficking convictions, and the length of the mandatory minimum

depended on the amount of the drug involved.            At sentencing, the

Commonwealth presented evidence regarding the amount of cocaine Samuel

possessed.    Samuel argued that, pursuant to this Court’s decision in

Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), in which we

found that the imposition of the mandatory sentencing provision of 42 Pa.C.S.

§ 9712.1 violated Alleyne, it was for the jury, and not the trial court, to

determine whether he possessed enough cocaine so as to implicate the

mandatory minimum sentence statute.          We rejected Samuel’s claim,

reasoning as follows:

     As a general matter, Samuel is correct; any fact that could
     increase the proscribed range of penalties to which a defendant is
     exposed must be found by a jury. Munday, 78 A.3d at 664–666.

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J-A04005-19


      The record is clear, however, that the trial court did not sentence
      him in accordance with mandatory minimum sentence provisions
      or any other enhancement that required a factual predicate before
      application.   Rather, the record reveals that the trial court
      sentenced Samuel within the standard guideline ranges, which
      were substantially elevated because of Samuel’s prior record score
      of five. Thus, although it was not for the trial court to make the
      determination as to how much cocaine Samuel possessed for
      purposes of determining whether mandatory minimum sentencing
      provisions applied, this error had no impact on Samuel’s sentence.
      Samuel’s challenge to the legality of his sentence fails.

Samuel, 102 A.3d at 1008. See also Commonwealth v. Zeigler, 112 A.3d

656 (Pa. Super. 2015) (addressing, sua sponte, legality of sentence where

mandatory minimum statute existed for appellant’s aggravated assault

conviction, but concluding sentence not illegal on Alleyne grounds because

court did not sentence based on mandatory minimum, but rather exceeded

mandatory minimum sentence by applying guidelines).

      In support of his claim, Russell cites this Court’s decision in

Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015), for the

proposition that, even where a sentence exceeds that prescribed by a

mandatory minimum, it is still invalid under          Alleyne.     Mosley is

distinguishable and garners Russell no relief.

      In Mosley, the appellant was sentenced under section 7508 of the

Sentencing Code (imposing mandatory minimum based on weight of

controlled substance possessed) after the trial court, in an attempt to comply

with Alleyne, presented the jury with a special verdict form that included the

following specific issue:   “If you find the defendant guilty of Count 4(c):

possession with intent to deliver, do you find the defendant guilty of

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J-A04005-19



possession with intent to deliver greater than 10 grams of cocaine?” Mosley,

114 A.3d at 1090.

          This Court vacated Mosley’s sentence, finding:

          the trial court exceeded its authority by permitting the jury, via a
          special verdict slip, to determine beyond a reasonable doubt the
          factual predicate of section 7508—whether Mosley possessed
          cocaine that weighed greater than 10 grams. Even though the
          jury responded “yes” to the inquiry, the trial court performed an
          impermissible legislative function by creating a new procedure in
          an effort to impose the mandatory minimum sentence in
          compliance with Alleyne.

Mosley, 114 A.3d at 1091.

          The facts of Mosley are clearly distinguishable from the case at bar.

Contrary to Russell’s claim, the length of the sentence imposed in Mosley was

not a factor in this Court’s analysis. Rather, we reversed solely on the basis

that the sentencing court impermissibly utilized a special verdict slip in an

attempt to impose a mandatory minimum that did not offend Alleyne. In

contrast, in the matter sub judice, the sentencing court explicitly did not

sentence Russell in accordance with the mandatory minimum, instead opting

to impose a guideline sentence. Pursuant to Samuel and Zeigler, such a

sentence is not illegal under Alleyne. Accordingly, Russell is entitled to no

relief.

          Russell next asserts that the evidence presented at trial was insufficient

to support his convictions for aggravated assault as to victims Jean Kreamer,

Kathleen Carey, and Joan Gaffner.           Specifically, Russell asserts that the

testimony of these victims did not establish that they suffered “serious bodily


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injury” within the meaning of 18 Pa.C.S.A. §§ 2301 and 2702(a). Nor, he

claims, did the evidence prove that he attempted to cause such injury.

Russell’s claim fails.

      A determination of evidentiary sufficiency presents a question of law.

As such, our standard of review is de novo and our scope of review is plenary.

Commonwealth v. Sanchez, 36 A.3d 24, 37 (Pa. 2011). In reviewing the

sufficiency of the evidence, we must determine whether the evidence admitted

at trial and all reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as verdict winner, were sufficient to prove

every element of the offense beyond a reasonable doubt. Commonwealth

v. Von Evans, 163 A.3d 980, 983 (Pa. Super. 2017).                “[T]he facts and

circumstances established by the Commonwealth need not preclude every

possibility of innocence.” Commonwealth v. Colon–Plaza, 136 A.3d 521,

525–26 (Pa. Super. 2016) (citation omitted). It is within the province of the

fact-finder to determine the weight to be accorded to each witness’s testimony

and to believe all, part, or none of the evidence. Commonwealth v. Tejada,

107 A.3d 788, 792–93 (Pa. Super. 2015). The Commonwealth may sustain

its burden of proving every element of the crime by means of wholly

circumstantial evidence. Commonwealth v. Mucci, 143 A.3d 399, 409 (Pa.

Super. 2016).     Moreover, as an appellate court, we may not re-weigh the

evidence    and   substitute   our   judgment   for   that   of   the   fact-finder.

Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

      The offense of aggravated assault is defined, in relevant part, as follows:

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J-A04005-19


      (a) Offense defined.—A person is guilty of aggravated assault if
      he:

         (1) attempts to cause serious bodily injury to another, or
         causes such injury intentionally, knowingly or recklessly
         under circumstances manifesting extreme indifference to
         the value of human life[.]

18 Pa.C.S.A. § 2702(a). Serious bodily injury is “[b]odily injury which creates

a substantial risk of death or which causes serious permanent disfigurement

or protracted loss or impairment of the function of any bodily member or

organ.” 18 Pa.C.S.A. § 2301. “[A]ttempt,” for aggravated assault purposes,

can be found where “the accused intentionally acts in a manner which

constitutes a substantial or significant step toward perpetrating serious bodily

injury upon another.” Commonwealth v. Woods, 710 A.2d 626, 630 (Pa.

Super. 1998), quoting Commonwealth v. Lopez, 654 A.2d 1150, 1154 (Pa.

Super. 1995). The conduct giving rise to an inference that defendant intended

to cause serious bodily injury need not in itself be life threatening.

Commonwealth v. Rightley, 617 A.2d 1289, 1295 (Pa. Super. 1992).

      The trial court summarized the testimony of the three victims, in

relevant part, as follows:

      [Kathleen] Carey, who was seventy-one years old at the time of
      trial, testified that on March 3, 2009, [Russell] attacked her as she
      was entering her apartment on the 6300 block of Bingham Street
      in Philadelphia. She testified that she had just moved her trash
      cans back from the curb and was putting the keys in the door
      when [Russell] approached her from behind. Ms. Carey asked him
      if he had “the right address,” and [Russell] responded “18.”
      [Russell] then lunged at Ms. Carey and put his hand over her
      mouth, which caused Ms. Carey to fall down the stairwell leading
      to her basement; fortunately, she was able to catch hold of the
      handrail to prevent her from falling all the way down. As she


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J-A04005-19


     struggled to her feet, [Russell] took Ms. Carey’s tote bag from her
     shoulder and left.

                                    ...

     [E]ighty-year-old victim Jean Kraemer . . . testified that on March
     5, 2009, at 11:50 a.m., she was just returning from the
     supermarket and bringing the last bag of groceries inside her
     home on the 600 block of Benner Street, when she heard a knock
     at the door. She went to the door and encountered [Russell], who
     asked if she would like to buy some Girl Scout cookies. Mrs.
     Kraemer responded, “Yes,” and that she would like to buy “two
     boxes of the mint cookies.” [Russell] replied that he had to go to
     his car to retrieve them. He returned a couple minutes later with
     a bag; Mrs. Kraemer noticed that the bag was not big enough to
     hold two boxes of cookies and began to feel anxious. [Russell]
     then stepped inside her doorway, grabbed her left shoulder, and
     knocked her down. Mrs. Kraemer fell backwards and struck her
     head on the floor.
                                    ...

     Joan Gaffner, another elderly victim, . . . testified that on
     September 12, 2008, at 12:20 p.m., she was pulling into her
     driveway after a trip to the supermarket, when she saw a car
     speeding up to her driveway on the 1100 block of Unruh Avenue.
     The car stopped, and she and [Russell] looked at each other.
     [Russell] then drove away. Ms. Gaffner was beginning to take her
     groceries inside, when she saw the same car backing up slowly to
     her driveway. [Russell] rolled down the window and asked her for
     directions to Magee Street. Ms. Gaffner told him it was the next
     street down. When she turned to pick up her groceries, [Russell]
     grabbed her from behind, pinned her arm against her chest,
     pushed her into her basement doorway, and knocked her down.
     [Russell] then stood over Ms. Gaffner and punched her twice in
     the stomach. Ms. Gaffner pleaded, “Please don’t hurt me.”
     [Russell] put his foot on top of her stomach, and took her
     pocketbook, which he placed in a plastic bag that he was carrying.
     [Russell] then punched Ms. Gaffner a third time in the stomach
     before fleeing her residence.17
        17Ms. Gaffner also suffered bruises to her arm and a cut to
        her lip during the attack.




                                   - 10 -
J-A04005-19



Trial Court Opinion, 3/19/18, at 6, 8-10 (citations to record and footnotes

omitted).

      We conclude that the evidence presented at trial was sufficient to allow

a jury to conclude that Russell intended to cause serious bodily injury when

he knocked three elderly women to the ground. Based on the totality of the

evidence presented, the jury could have found that Russell, who was

substantially larger and stronger than his victims, intentionally acted in a

manner which constituted a substantial or significant step toward perpetrating

serious bodily injury upon his elderly victims. See Woods, supra. Russell

pushed Kathleen Carey down as she stood at the top of a flight of stairs.

Although Carey was able to break her fall by grabbing a railing, the jury could

nonetheless have inferred that Russell intended to cause her to fall all the way

down the stairs and cause serious bodily injury. Similarly, Russell knocked

Jean Kraemer, a then-79-year-old woman, to the ground near a flight of stairs.

As a result, she fell backwards, striking her head on the floor. Finally, after

knocking Joan Gaffner to the floor, Russell proceeded to punch her twice in

the stomach before taking her purse. He then gratuitously punched her one

final time as she lay on the floor, even though the object of his attack—the

theft of her purse—had already been accomplished.           This evidence was

sufficient to establish that Russell committed the offense of aggravated assault

against Kathleen Carey, Jean Kraemer, and Joan Gaffner.

      Russell’s reliance on Commonwealth v. Burton, 2 A.3d 598 (Pa.

Super. 2010), is misplaced.    In that case, the defendant was convicted of

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aggravated assault after he caused his victim to suffer a major brain injury by

sucker-punching him once on the street. On appeal, Burton acknowledged

that his victim suffered serious bodily injury, but argued the evidence was

insufficient to establish his intent to cause such injury. In its analysis, the

Court reviewed our Supreme Court’s decision in Commonwealth v.

Alexander, 383 A.2d 887 (Pa. 1978).           There, the Court also addressed a

scenario in which a single sucker-punch led to a charge of aggravated assault.

In Alexander, however, the victim did not suffer serious bodily harm. Under

those circumstances, the Court noted, a defendant may only be convicted of

aggravated assault if the Commonwealth proves the blow was inflicted with

the intent to inflict serious bodily injury. The Court held that such intent must

be gleaned from “the other circumstances surrounding the defendant’s attack

on the victim.” Id. at 889. The Alexander court enumerated several factors

which may be considered in making that determination: whether the attacker

was disproportionately larger or stronger than the victim; whether the

attacker was restrained from escalating his attack upon the victim; whether

the attacker had a weapon or other implement to aid his attack; and whether

the attacker made any statements before, during, or after the attack which

might indicate his intent to inflict further injury upon the victim. See id.

      Turning to the facts of the case before it, the Burton court noted the

presence of the following factors: the appellant was significantly stronger and

larger than the victim; the appellant was ten years younger than the victim;

the appellant’s actions and statements before and after the assault confirmed

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that he intended to inflict the victim’s injuries; and the victim was unprepared

for the attack.   Taken together, the Court concluded that circumstances

established Burton intended to cause serious bodily injury.

      Contrary to Russell’s claim, Burton actually supports a finding that

Russell possessed the requisite intent to cause serious bodily harm to his

victims. Indeed, in the matter sub judice, three out of the four factors cited

in Burton are present:     Russell was stronger and larger than his victims;

Russell was substantially younger than his elderly victims; and he approached

his victims from behind, surprising them and catching them off-guard.

Accordingly, Burton is of no assistance to Russell and his claim must fail.

      Russell’s next two claims involve his conviction for possession of

marijuana.    Russell asserts that he is entitled to a new trial because the

Commonwealth improperly joined the possession charge with the robbery-

related charges even though he was not arrested with marijuana during the

course of the other crimes.     He asserts that the error was not harmless

because there was “a real risk that the jury misused the evidence that he was

in possession of marijuana at the time of his arrest, i.e., that [Russell] is an

all-around bad guy.” Brief of Appellant, at 35. He further argues that the

Commonwealth was not entitled to a jury trial on the charge because the

maximum penalty was a mere thirty days; as such, it is not a “serious” crime

for purposes of jury trial rights. Id., citing Commonwealth v. Kerry (906

A.2d 1237 (Pa. Super. 2006) (defendant not entitled to jury trial where




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maximum penalty for offense is six months’ imprisonment). Russell is entitled

to no relief.

      In order to preserve a claim for appellate review, a party must make a

timely and specific objection at the appropriate stage of the proceedings

before the trial court, or the claim is waived. Commonwealth v. Houck, 102

A.3d 443 (Pa. Super. 2014).

      On appeal, the Superior Court will not consider a claim which was
      not called to the trial court’s attention at a time when any error
      committed could have been corrected. The princip[al] rationale
      underlying the waiver rule is that when an error is pointed out to
      the trial court, the court then has an opportunity to correct the
      error. By specifically objecting to any obvious error, the trial court
      can quickly and easily correct the problem and prevent the need
      for a new trial. Additionally, the appellate court should not be
      required to waste judicial resources correcting a problem that the
      trial court could have easily corrected if it had been given the
      opportunity to avoid the necessity of granting a new trial.

Fillmore v. Hill, 665 A.2d 514, 516 (Pa. Super. 1995) (internal citations

omitted).

      Here,     Russell   never   objected     before   the   trial   court   to   the

Commonwealth’s joinder of the marijuana charge to the robbery-related

charges. Russell did not raise the issue in a pre-trial motion, nor did he object

at the time of trial. In fact, at the time of his arraignment, Russell stated that

he wished to be tried by a jury on the charge.

      THE COURT CRIER: To Docket No. CP-51-CR-0011091-2009,
      charging you with possession of marijuana, how do you plead?

      THE DEFENDANT: Not guilty




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      THE COURT CRIER: Having pled not guilty to these charges, how
      do you wish to be tried, by the Judge, or by the jury?

      THE DEFENDANT: By the jury.

N.T. Trial, 6/16/10, at 9-10.

      Because a claim may not be raised for the first time on appeal, Russell

has waived his challenge to the joinder of the marijuana charge.                     See

Pa.R.A.P. 302(a).

      Russell also challenges the sufficiency of the evidence with respect to

his conviction for possession of marijuana. Russell asserts that, because the

Commonwealth did not offer into evidence a chemical analysis of the

marijuana,   but    rather   relied   upon   the   results   of   a   field   test   for

tetrahydrocannabinol (“THC”), his conviction cannot stand. This claim is also

waived.

      An issue will be deemed to be waived where an appellant fails to properly

explain or develop it in his brief. See Commonwealth v. LaCava, 666 A.2d

221, 235 (Pa. 1995) (failure to sufficiently explain claim waives consideration

of claim since this Court will not make appellant’s arguments for him);

Commonwealth v. Ragan, 645 A.2d 811, 828 (Pa. 1994) (failure to

elaborate on mere assertion renders claim waived). Here, in his undeveloped

one-paragraph argument on this issue, Russell fails to cite to any authority in

support of his position. See Commonwealth v. Brougher, 978 A.2d 373

(Pa. Super. 2009) (claim waived if no citation to authority). Indeed, the only

case Russell cites—an unreported, non-precedential decision of this Court—is

presented in a footnote in order to satisfy counsel’s “ethical duty to make the

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Court aware of law contrary to his position.” Brief of Appellant, at 38 n.2,

citing Commonwealth v. Carroll, 1157 MDA 2012 (Pa. Super. Mar. 6, 2013)

(unpublished memorandum) (finding field test sufficient to establish illegality

of substance) (emphasis added). Accordingly, Russell has waived his claim

that the evidence was insufficient to convict him of possession of marijuana.

      Russell next claims that the trial court erred in denying his motion to

suppress the in- and out-of-court identifications made by victims Kathleen

Carey, Marianne Nuzzo, Joan Gaffner, Patricia Gordon-Mann, and Jean

Kraemer on the basis that they were made under unduly suggestive

circumstances after the victims saw his photograph in the media.       Russell

asserts that this case is controlled by the United States Supreme Court’s

decision in Foster v. California, 394 U.S. 440 (1969), in which the Court

found that a lineup procedure “so undermined the reliability of the eyewitness

identification as to violate due process.” Id. at 443. Russell further asserts

that the Commonwealth failed to carry its burden of establishing that an

independent basis existed for the victims’ in-court identifications.   Brief of

Appellant, at 46, citing Commonwealth v. Carter, 643 A.2d 61 (Pa. 1994).

We disagree, and conclude that the trial court properly declined to suppress

the in- and out-of-court identifications.

      We begin by noting our standard of review of the denial of a suppression

motion:

      When reviewing the propriety of a suppression order, an appellate
      court is required to determine whether the record supports the
      suppression court’s factual findings and whether the inferences

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      and legal conclusions drawn by the suppression court from those
      findings are appropriate. Commonwealth v. Davis, [] 421 A.2d
      179 ([Pa.] 1980). [Where the Commonwealth] prevailed in 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 record supports the factual findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.
      Commonwealth v. Bomar, [] 826 A.2d 831, 842 ([Pa.] 2003)
      (citations omitted).     However, where the appeal of the
      determination of the suppression court turns on allegations of
      legal error, “the suppression court’s conclusions of law are not
      binding on an appellate court, whose duty it is to determine if the
      suppression court properly applied the law to the facts.”
      Commonwealth v. Nester, [] 709 A.2d 879, 881 ([Pa.] 1998).

In re O.J., 958 A.2d 561, 564 (Pa. Super. 2008).

      A court must assess the reliability of an out-of-court identification by

examining the totality of the circumstances. Commonwealth v. Johnson,

139 A.3d 1257, 1278 (Pa. 2016), citing Manson v. Brathwaite, 432 U.S. 98,

114 (1977). A pre-trial identification will not be suppressed as violative of

due process unless the facts demonstrate that the identification procedure

was “so impermissibly suggestive as to give rise to a very substantial

likelihood of irreparable misidentification.” Commonwealth v. Carson, 741

A.2d 686, 697 (Pa. 1999), quoting Simmons v. United States, 390 U.S.

377, 384 (1968). The reliability of an out-of-court identification is determined

by considering the totality of the circumstances, including, inter alia, the

following specific factors: (1) the witness’ ability to observe the criminal act;

(2) the accuracy of the photo array selection and other descriptions; (3) the

lapse of time between the act and any line-up; and (4) any failure to identify


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the defendant on prior occasions. Commonwealth v. Santiago, 855 A.2d

682, 698 (Pa. 2004).      “[T]he purpose of a suppression order regarding

exclusion of identification evidence is to prevent improper police action. Thus,

where a defendant does not show that improper police conduct resulted in a

suggestive identification, suppression is not warranted.” Commonwealth v.

Sanders, 42 A.3d 325, 330 (Pa. Super. 2012) (citations and footnotes

omitted).

      Additionally, even if an out-of-court identification is suggestive, an in-

court identification is admissible if there exists an independent basis for the

identification. Commonwealth v. Fisher, 769 A.2d 1116, 1127 (Pa. 2001).

An independent basis is established when the in-court identification resulted

from the criminal act and not the suggestive identification procedure.

Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super. 2011).                   To

determine if an identification resulted from the criminal act and, therefore,

has an independent basis, the trial court must consider the following factors:

      [T]he 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.

Id.

      Here, Russell failed to demonstrate that the conduct of the Philadelphia

Police Department in releasing his mug shot to the press was improper and,

thus, the out-of-court identifications were impermissibly tainted.      Russell

presented no evidence that the photograph was publicized for any reason

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other than to aid in his apprehension once the authorities had reason to

believe he was the perpetrator of multiple violent robberies. Notably, Russell

does not argue that the photographic arrays presented to the victims were in

any way suggestive.        Rather, he baldly asserts that the police improperly

released his photograph to the media. There is no support in the record for

this claim. Thus, any argument about the impact of media exposure on the

victims’ identification of Russell as their assailant is relevant to weight, not

admissibility, and the jury was free to believe or disbelieve the victims’

testimony, which was subject to cross-examination by the defense at trial.

Commonwealth v. Steele, 559 A.2d 904, 910 (Pa. 1989) (claim that

identification of perpetrator tainted by newspaper photographs goes to weight

and not admissibility); Sanders, supra (arguments about the circumstances

in which victim made identification go to weight and not admissibility).

       Moreover, the testimony of the victims at the preliminary hearing9

established the independent reliability of their identifications. Fisher, supra;

Davis, supra.       Joan Gaffner testified that she was approached in broad

daylight on a sunny day and interacted with Russell prior to actually being

attacked. Specifically, Russell drove his car into Gaffner’s driveway, rolled

down the window, and asked Gaffner for directions, before returning moments

later to attack her as she finished carrying groceries into her basement. See
____________________________________________


9 At the suppression hearing, the Commonwealth, without objection, entered
the preliminary hearing transcript into evidence in lieu of calling the victims
to testify again.


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J-A04005-19



N.T. Preliminary Hearing, 7/21/09, at 16-17. Following her attack, Gaffner

was able to provide police with a detailed description of her assailant. Finally,

she testified as follows:

      Q: Do you recognize the person who was there that day in the
      room today?

      A: Oh, yes I do.

      Q: And can you point that person out, please?

      A: Right there.

      MS. KEATING: Indicating by point of finger the Defendant at the
      bar of the court, Christopher Russell.

      THE WITNESS: I won’t forget that face.

N.T. Preliminary Hearing, 7/21/09, at 18 (emphasis added).

      Kathleen Carey testified that she had a conversation with Russell before

he attacked her. Specifically, she noticed him standing behind her at her door

and asked him if he was in the right apartment.        Carey was also able to

describe her attacker to police; she testified at the preliminary hearing as

follows:

      Q: Now, did you get a chance to see the face of the person who
      did it?

      A: Yes, I will never forget that face.

      Q: Do you see anyone in court now that also was there that day?

      A: Yes.

      Q: Can you point that person out for the judge?

      MS. KEATING: Indicating by point of finger the Defendant
      Christopher Russell, I am going to stipulate with counsel that there
      was a pause in staring at the Defendant before making that
      identification.

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J-A04005-19



Id. at 32 (emphasis added).

      Jean Kraemer also had a conversation with Russell immediately prior to

the attack, in which Russell approached her and asked if she would like to

purchase Girl Scout cookies. She asked him questions, they discussed price,

and she agreed to purchase some cookies. He went to his car, ostensibly to

retrieve the cookies, and, upon returning, attacked Kraemer. After he threw

her to the ground, Kraemer was further able to observe Russell’s interaction

with her husband, who was seated in the house and from whom Russell

demanded money. Kraemer gave the police a description of her assailant.

She testified that she saw his photograph once in the newspaper prior to being

presented with a photo array by police, at which time she identified Russell

with 70-80% certainty.      Kraemer also identified Russell in court at the

preliminary hearing.

      Maryanne Nuzzo testified that she had just arrived home and was

looking at her mail outside her front door when Russell ran up behind her.

She testified that she looked him in the eye and he briefly smiled at her. After

the attack, Nuzzo testified that she saw Russell get into the back of a light-

colored sedan and drive away. Approximately one month later, Nuzzo was

watching the news and saw Russell’s photograph, which caused her to do a

“double take” and say to herself, “this is my guy.” Id. at 84. She immediately

contacted police and participated in a photo lineup, at which time she selected

Russell’s picture. She testified that she then told police she would know for




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certain if Russell was her attacker when she saw him face to face.          After

observing Russell at the preliminary hearing, Nuzzo testified as follows:

      Q: And do you know for certain today?

      A: Yes, I do.

Id.

      Lastly, Patricia Gordon-Mann testified that she had just returned home

and was fumbling for her keys at her front door when Russell walked behind

her and “came very close.” Id. at 90. She asked him “who are you here

for[?]” and he responded, “I’m here for you,” and punched her in the face.

Id. She was able to provide police with a description of her assailant in the

immediate aftermath of the attack.      She testified as follows regarding her

identification of Russell as her attacker:

      Q: Now, did you ever have a chance to see the Defendant again
      after this happened to you and before today?

      A: Yes, I saw him on television and that probably was in February.
      I don’t know the exact date.

      Q: What happened when you saw him on T.V.?

      A: I immediately called and said that’s my guy. . . . And then
      again [Detective] Mark Cannon came with a photo array and asked
      me to pick him out and once again I picked him out.

Id. at 92. Gordon-Mann also identified Russell in court at the preliminary

hearing.

      In light of the foregoing testimony, we find that the trial court properly

concluded that the victims recognized Russell based on their own perceptions

of him and not due to any media exposure.             All the victims had an


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opportunity—some an extensive opportunity—to view their assailant face-to-

face at the time of the attacks. The victims provided police with consistent,

detailed, and accurate physical descriptions of Russell.

      In light of the foregoing, the trial court did not err or abuse its discretion

in declining to suppress either the out-of-court or in-court identifications made

by victims Joan Gaffner, Kathleen Carey, Jean Kraemer, Maryanne Nuzzo and

Patricia Gordon-Mann.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/19




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