J. S35011/16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :      IN THE SUPERIOR COURT OF
                                            :            PENNSYLVANIA
                     v.                     :
                                            :
LORENZO DYER,                               :         No. 1544 EDA 2015
                                            :
                          Appellant         :


             Appeal from the Judgment of Sentence, April 17, 2015,
                in the Court of Common Pleas of Lehigh County
               Criminal Division at No. CP-39-CR-0002639-2014


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND MUSMANNO, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                       FILED MAY 06, 2016

        Lorenzo Dyer appeals from the judgment of sentence entered by the

Court of Common Pleas of Lehigh County on April 17, 2015, following his

conviction in a jury trial of robbery and criminal conspiracy to commit

robbery.1 The trial court sentenced appellant to a term of imprisonment of

10 to 20 years on each count to be served concurrently. We affirm.

        The trial court set forth the following:

              [O]n May 22, 2014, at approximately 11:45 P.M.,
              twenty-five    (25)   year    old   Kenneth     Hunt,
              Jr.[Footnote 3] was crossing the Eighth Street Bridge
              in Allentown, Lehigh County, Pennsylvania, on his
              way to his residence located on the south side of
              Allentown.    When the victim reached about the
              halfway mark across the bridge, he was approached
              by four (4) younger black males. The four (4) men
              formed a semi-circle around Mr. Hunt and effectively

1
    18 Pa.C.S.A. § 3701(a)(1)(ii) and 18 Pa.C.S.A. § 903(a)(1), respectively.
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          surrounded him.[Footnote 4] Mr. Hunt noted that
          there was an actor, who stood approximately 5’6” to
          5’7” in height who had his hair cut close to his head,
          to his left who brandished a silver barreled handgun
          and pointed it at his head. This male actor, later
          identified as [appellant], stood approximately two
          (2) feet from Mr. Hunt. In addition, the three (3)
          other males stood to Mr. Hunt’s right-hand side.

                [Footnote 3] Kenneth Hunt moved to the
                Allentown area from the Poconos a
                couple of years ago in search of different
                employment.      Mr. Hunt works as a
                manager at Men’s [Wearhouse].

                [Footnote 4] The tallest male was
                approximately 6’1” to 6’2” and he put his
                hands on the victim. This tall male was
                not the actor who possessed the firearm.

                 One of the perpetrators demanded that
          Mr. Hunt “give him all his things.”         Mr. Hunt
          complied.    The actors took his HTC-One cellular
          phone, headphones and his wallet containing such
          items as his bank cards, identification, and his social
          security card. One of the males then punched him in
          the face, splitting his lip. When the victim’s head
          turned, he saw sneakers with lime green eyelets on
          them. The four (4) black males then left the scene,
          heading north on Eighth Street.         As they were
          leaving, one of the males stated something along the
          lines of, “Don’t snitch because we know where you
          live.”

                Immediately following this incident, Mr. Hunt
          went to his friend’s house that was located close to
          the scene. Upon his arrival at his friend’s residence,
          Mr. Hunt’s friend called 911 to report the incident,
          and also immediately began to track his cellular
          phone through a GPS tracker on his Google
          account.[Footnote 5]

                [Footnote 5] The victim’s cellular
                telephone was locked and could not be


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                turned off. Consequently, it was able to
                be tracked through a GPS tracker.

                 Officer Nicholas Lerch of the Allentown Police
          Department received a call from the communication
          center at approximately 11:45 P.M. with regard to an
          armed robbery of a pedestrian on the Eighth Street
          Bridge. The communication center indicated that
          they were looking for a group of four (4) to five (5)
          black males wearing dark clothing.          One was
          reported to have a handgun.               Additionally,
          Officer Lerch was informed that the victim’s cell
          phone was being traced to the area of 13th and
          Turner      Streets,    Allentown,  Lehigh    County,
          Pennsylvania.      Officer Lerch responded to said
          location at about 12:00 midnight.

                 Officer Robert Carbaugh and Officer Andrew
          Moll of the Allentown Police Department were the
          first to arrive in the area of 13th and Turner Streets.
          They noted four (4) black males who matched the
          description provided by the communication center of
          the perpetrators of the earlier armed robbery. The
          males were huddled together with their heads down
          behind a red pick-up truck parked in the parking lot
          of the repair garage located at the corner of 13th and
          Turner Streets.[Footnote 6]             Upon viewing
          Officer Moll exit his police cruiser and approach
          them, the group of four (4) black males dispersed in
          different directions. Officer Moll grabbed the closest
          of the four (4) males (later identified as Daiquan
          Tracy) and immediately checked him for weapons.
          He then radioed the other officers to inform them of
          the situation.

                [Footnote 6] The vehicle was parked
                facing northbound, not in an allotted
                parking spot. The parking lot was very
                full at the time that night.

                      In addition, both Officer Moll and
                Officer Carbaugh identified [appellant] as
                one of the four men that they observed
                that evening.


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                One of the black males, later identified as
          [appellant], and who was wearing a black Champion
          hoody, a pair of navy blue Adidas wind pants and
          light grey Nike Air Max sneakers with reflective
          fluorescent green on them, crossed Turner Street
          and proceeded south on 13th Street.[Footnote 7]
          Officer Lerch approached [appellant] cautiously at
          the northeast corner of 13th and Turner Streets, as
          [appellant] had his left hand in his hoody.
          Officer Lerch instructed [appellant] to remove his
          hands and informed him that he was being stopped
          because he matched the description of a perpetrator
          in an armed robbery that took place minutes earlier.
          Officer Lerch patted [appellant] down for officer
          safety and inquired if he was involved with the other
          males across the street. [Appellant] stated that he
          did not know the other men. While Officer Lerch was
          speaking with [appellant], he received a radio
          transmission from Officer Steven James that the
          victim’s stolen cell phone was located in one (1) of
          the [males’] pockets.[Footnote 8]      Consequently,
          [appellant] was placed in investigative detention.
          Officer Lerch remained with [appellant].

                [Footnote 7] The victim explicitly
                remembered       the    reflective  green
                sneakers that night as being worn by one
                of the actors on the Eighth Street Bridge.

                [Footnote 8] In addition, Officer Moll
                radioed that he had found a handgun and
                the victim’s possessions.

                Ultimately,    all   four   (4)    males   were
          apprehended within a half block of each other.
          Specifically, Alomar Wee-Ellis was detained by
          Officer Steven James; and Javard Lane was detained
          by Officer Robert Carbaugh.            Of note, the
          apprehension      of    these   individuals   occurred
          approximately fifteen (15) to twenty (20) minutes
          after the robbery and was approximately 1.1 miles
          from the initial crime scene on the Eighth Street
          Bridge.


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                Officer Moll searched the premises of the
          garage repair lot in the area of where he observed
          the four (4) suspects huddled together by the red
          pick-up truck. In the bed of the red pick-up truck,
          Officer Moll located, inter alia, the victim’s bank
          cards, his identification card, and his social security
          card. In addition, Officer Carbaugh located a silver
          .380 handgun with five (5) rounds in it under the red
          pick-up truck.

                 Meanwhile, Officer Yamil Castillo arrived at the
          residence of the victim’s friend located in the
          800 block of South Hall Street. At that time, the
          victim provided Officer Castillo with a description of
          the suspects.      Soon thereafter, Officer Castillo
          requested that the victim accompany him to a
          location to potentially identify suspects that were
          being detained by the Allentown Police.              He
                                                   th
          transported Mr. Hunt to the area of 13 and Turner
          Streets, Allentown, Lehigh County, Pennsylvania.
          While being transported to the area, Officer Castillo
          informed Mr. Hunt that there were males being
          detained by the Allentown Police Department who
          were found with his cell phone[Footnote 9] and his
          personal effects in their possession.

                [Footnote 9] While the four (4) suspects
                were being detained, Officer Castillo had
                the victim call his cell phone and the
                telephone that was in the possession of
                these individuals began to ring.

                 At approximately 12:05 A.M., when the victim
          arrived at the location where the police officers were
          detaining the subjects, he was able to confidently
          identify the black male who pointed a gun at him
          about twenty (20) minutes earlier that evening. This
          male was [appellant].           Mr. Hunt based his
          identification on the [appellant’s] height and short
          haircut. All four (4) men were separated from each
          other, handcuffed, and in the presence of the police
          at the time of the identification.



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                  At the time of trial, the victim was unable to
            provide an in-court identification, due to the passage
            of approximately ten (10) months.

Trial court opinion, 6/18/15 at 3-7 (trial exhibit citations omitted).

      The record reflects that prior to trial, appellant filed an omnibus

pretrial motion seeking to suppress the victim’s on-scene identification as

unduly suggestive. A suppression hearing took place on October 14, 2014.

During the hearing, the victim testified as to the circumstances surrounding

his on-scene identification but was unable to positively identify the suspect

at the hearing due to the passage of time. (Notes of testimony, 10/14/14 at

12-13.) Subsequently, the trial court found that based on the totality of the

circumstances, the victim’s identification was reliable and, therefore, denied

the motion to suppress.

      Appellant presents the following issue for our review:

            Whether the lower court abused its discretion, erred
            as a matter of law and violated [a]ppellant’s due
            process rights under the constitutions of the United
            States and the Commonwealth of Pennsylvania in
            denying his motion to suppress the victim’s out-of-
            court identification where the initial confrontation
            was brief and at night, the identification was badly
            flawed because, inter alia, the police told the victim
            prior to the identification that they believed that the
            individuals who had been detained were, in fact, the
            individuals involved in the crime and he had to
            identify him; and there was no independent basis to
            ameliorate the tainted identification?

Appellant’s brief at 4.




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      Our standard of review for challenges to the denial of a suppression

motion is as follows:

            [We are] limited to determining whether the
            suppression court’s factual findings are supported by
            the record and whether the legal conclusions drawn
            from those facts are correct.           Because the
            Commonwealth prevailed before the suppression
            court, we may consider only the evidence of the
            Commonwealth and so much of the evidence for the
            defense as remains uncontradicted when read in the
            context of the record as a whole.          Where the
            suppression court’s factual findings are supported by
            the record, we are bound by these findings and may
            reverse only if the court’s legal conclusions are
            erroneous.     Where . . . the appeal of the
            determination of the suppression court turns on
            allegations of legal error, the suppression court’s
            legal conclusions are not binding on an appellate
            court, whose duty it is to determine if the
            suppression court properly applied the law to the
            facts. Thus, the conclusions of law of the courts
            below are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013) (citations omitted).

            In reviewing the propriety of identification evidence,
            the central inquiry is whether, under the totality of
            the circumstances, the identification was reliable.
            The purpose of a “one on one” identification is to
            enhance reliability by reducing the time elapsed after
            the commission of the crime. 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’ [sic] to view the perpetrator at the time


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            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. Brown, 23 A.3d 544, 558 (Pa.Super. 2011) (en banc)

(internal citations and quotation marks omitted).

      Here, appellant complains that the trial court erred in denying his

motion to suppress because, based on the totality of the circumstances, the

victim’s on-scene identification was unreliable for the following reasons:

(1) the identification was unduly suggestive because (a) the victim was

informed by police prior to the identification that they had detained the

individuals who were involved in the crime, and (b) the victim identified

appellant while appellant was under visible police detention; (2) the crime

was committed when it was dark; and (3) the victim was unable to identify

appellant in subsequent court proceedings.

      Following a careful review of the record, and contrary to appellant’s

assertions, we find that the record supports the trial court’s factual findings

and the legal conclusions drawn from those facts. The trial court found:

            [T]he on-the-scene identification increased the
            reliability of the identification as a result of the short
            duration between the commission of the alleged
            crimes and the identification.         According to the
            evidence, the incident occurred at approximately


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               11:45 P.M. The victim made the identification at
               approximately 12:05 A.M. Consequently, clearly less
               than a half hour had elapsed between the occurrence
               of the event and the on-the-scene identification.
               Additionally, the victim had sufficient time to view
               [appellant’s] face that was not covered, as he stood
               approximately two (2) feet from [appellant] while he
               brandished a handgun on the Eighth Street Bridge.
               The victim testified that the incident took
               approximately five (5) to ten (10) minutes to unfold.
               Furthermore, the victim was confident and certain
               that [appellant] was the culprit who wielded the
               handgun at his face. The record was void of any
               special element of unfairness that would give rise to
               an irreparable likelihood of misidentification by the
               victim.    To the contrary, the totality of the
               circumstances surrounding the victim’s identification
               led this Court to find that the identification was
               completely reliable.

Trial court opinion, 6/18/15 at 13-14.

       Indeed, the linchpin in assessing the admissibility of an identification is

reliability.   McElrath v. Commonwealth, 592 A.2d 740, 743 (Pa.Super.

1991) (citations omitted). Here, the record reflects that the victim identified

appellant approximately 20 minutes after appellant stood 2 feet in front of

the victim for 5 to 10 minutes. Additionally, the victim testified that he was

“confident” that he had identified the correct person that held a gun to his

head. (Notes of testimony, 10/14/14 at 12.) Despite appellant’s claim, the

reliability of the victim’s identification is not outweighed by undue suggestion

based on police remarks made to the victim about the appellant prior to the

identification and when the victim identified appellant while appellant was

under visible police detention.     See Commonwealth v. Moye, 836 A.2d



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973, 977-978 (Pa.Super. 2003), appeal denied, 851 A.2d 142 (Pa. 2004)

(holding that the reliability of the victim’s identification of defendant made

after the victim observed defendant and unhesitatingly identified him in very

close temporal proximity to the commission of the crime was not outweighed

by police remarks made to the victim about defendant prior to the

identification and when the victim identified defendant while defendant sat in

a police van). Consequently, no special element of unfairness exists so as to

give rise to an irreparable likelihood of misidentification.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/2016




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