J-S46015-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KENNY WHITE                                :
                                               :
                       Appellant               :   No. 1575 EDA 2018

             Appeal from the Judgment of Sentence April 27, 2018
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0011266-2016


BEFORE:      PANELLA, P.J., OLSON, J., and COLINS, J.*

MEMORANDUM BY PANELLA, P.J.:                        FILED NOVEMBER 15, 2019

        Kenny White appeals from the judgment of sentence entered in the

Philadelphia County Court of Common Pleas following his conviction for

robbery. White challenges the trial court’s denial of his pre-trial motion to

suppress identification evidence offered against him as well as the legality of

his sentence. Upon review, we affirm.

        On October 9, 2016, Waheed Ejaz was working at a 7-Eleven

convenience store at 23 West Girard Avenue in Philadelphia. At about 2:30

a.m., White walked up to the cash register and ordered Ejaz to open the

register. Ejaz attempted to stall White in order to draw the attention of two

co-workers who were taking a dinner break in the store.




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*   Retired Senior Judge assigned to the Superior Court.
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      White then indicated he had a gun in his pocket. Ejaz was able to see

the barrel and handle of what he believed to be a gun when White began to

pull it out of his pocket. Ejaz became afraid and bent down to attempt to run.

When Ejaz ducked, White walked out of the store. Ejaz then told another

employee to call the police.

      Philadelphia Police Officer Justin Barr was on duty and received a radio

call about the robbery. When he arrived at the store, Ejaz provided a full

description of the perpetrator, describing him as a male of medium

complexion, wearing a gray hooded sweatshirt, gray pants, and a gray hat.

Officer Barr broadcasted that description over the police radio.

      Approximately three hours later, Police Officer John Bender was

responding to a call from an unrelated incident in the same area as the 7-

Eleven incident when he apprehended a suspect who matched the description

given by Ejaz. Officer Bender notified Officer Barr, who promptly escorted Ejaz

to the location where White was being held. Ejaz thereupon identified White

as person who ordered him to open the cash register.

      White was subsequently arrested and charged with robbery. During a

pretrial hearing, counsel for White made a motion to suppress the out-of-court

show-up identification as well as preclude any corresponding in-court

identification. He argued that the out-of-court show-up was unduly suggestive

and that a subsequent in-court identification would be tainted as well. The

court denied the motion, finding there was nothing in the record to suggest




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the police officers acted in an unreasonable manner, or that the show-up

identification was unduly suggestive.

       A jury trial was held which resulted in White being found guilty of

robbery. At the sentencing hearing, after reviewing a presentence report, the

court determined that this was White’s second offense1, and imposed a

mandatory sentence of ten to twenty years’ incarceration pursuant to 42

Pa.C.S.A. § 9714.

       White filed a post-sentence motion arguing the verdict was against the

weight of the evidence. Specifically, he argued the differences between the

description provided by Ejaz and White’s actual appearance were so significant

that a conviction based upon such an identification shocked one’s conscience.

The trial court denied the motion. This timely appeal followed.

       White’s first issue on appeal is a challenge to the trial court’s suppression

ruling.

       Our standard of review in addressing a challenge to a trial court’s
       denial of a suppression motion is whether the factual findings are
       supported by the record and whether the legal conclusions drawn
       from those facts are correct. When reviewing the ruling of a
       suppression court, we must consider only the evidence of the
       prosecution and so much of the evidence of the defense as
       remains uncontradicted when read in the context of the record as
       a whole. Where the record supports the findings of the
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1 The trial court acknowledged that defense counsel had agreed this was a
second strike. See N.T., Sentencing, 4/27/2018, at 3. Defense counsel then
specifically conceded the lack of the court’s sentencing discretion. See id., at
4-5. White made no objections and did not dispute his prior conviction. See
id., at 5 (responding “no” when asked whether he had anything he would like
to say before sentence was imposed). The trial court then imposed a section
9714 mandatory minimum sentence.

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      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted).

       White contends that it was error for the lower court to refuse to

suppress the out-of-court show-up identification procedures because they

were so unduly suggestive as to render them unreliable. The corollary of this

claim is that the in-court identification should have been precluded as

irretrievably tainted by the suggestive initial identification procedures.

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

and most internal quotation marks omitted; emphasis added).

      White’s argument appears to find the circumstances of this case to have

been unduly suggestive because it involved a one-on-one confrontation


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between the witness and a single suspect, White, more than two hours after

the incident, during which White was in handcuffs and standing next to an

officer in front of a police car.

      We find none of White’s arguments establish that the identification was

tainted by suggestiveness. The facts outlined above indicate that Ejaz’s

prompt complaint enabled the police to use the description provided to track

down and locate White soon after the robbery. Less than three hours after the

crime, the police were able to present White for a viewing by Ejaz. This is

proper procedure. Absent some special element of unfairness, prompt, one-

on-one identification is not per se violative of the accused’s constitutional

rights, even where the accused is viewed in proximity to the crime,

handcuffed, and in the presence of police. See Commonwealth v. Allen, 429

A.2d 1113, 1120-1121 (Pa. Super. 1981) (defendants handcuffed in back of

police van, identified a little more than an hour after the crime); see also

Moye, 836 A.2d at 977.

      Also unavailing is White’s argument that the identification was

suggestive because Ejaz gave conflicting descriptions of the perpetrator, one

of which did not match White’s actual appearance. Evidence of identification

is not required to be certain or unimpeachable to sustain a conviction. See

Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa. super. 2008). White’s

claim goes to the weight, not the sufficiency, of the identification testimony.

See id. A fair reading of the record shows that although Ejaz later gave a


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conflicting description of the perpetrator to a detective, White matched the

description Ejaz provided to the police immediately after the incident, which

was transmitted over police radio. See N.T., 10/4/2017, at 20-21, 28. Around

three hours later, police apprehended a man matching that description in the

same general area and promptly brought Ejaz for a show-up identification in

a well-lit area, at which he unequivocally identified White as the robber.

      We conclude the record supports the suppression court’s determination

that Ejaz’s out-of-court identification was reliable. Finding nothing in the

record indicates the pretrial proceedings were tainted, we need not reach the

related question of whether the in-court identification is inadmissible based on

the suggestiveness of the out-of-court identifications and lacking an

independent basis. See Commonwealth v. Hughes, 555 A.2d 1264, 1273

n.7 (Pa. 1989). Accordingly, the trial court did not err in denying White’s

motion to suppress.

      In his second and final issue, White argues that his sentence is illegal

because the mandatory minimum sentencing provisions employed by the trial

court are unconstitutional. Specifically, White contends 42 Pa.C.S.A. § 9714

is unconstitutional as written under the dictates of Alleyne v. United States,

570 U.S. 99 (2013) (holding any fact, other than a prior conviction, that

increases a mandatory minimum sentence is considered an element of the

crime and must be submitted to the jury and proven beyond a reasonable

doubt).


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       White concedes his arguments are contrary to precedent that controls

our decision. See Appellant’s Brief, at 40-41; see also Commonwealth v.

Bragg,     133   A.3d    328,    333    (Pa.   Super.   2016);   aff’d,   per   curiam,

Commonwealth v. Bragg, 169 A.3d 1024 (Pa. 2017). However, White

asserts his is a “good faith argument” for change in existing law based on the

reasoning set out in Alleyne and the faulty underpinnings of Almendarez-

Torres v. United States, 523 U.S. 224 (1998).

       While we appreciate White’s good faith argument regarding recent

development in constitutional law that is at odds with the narrow exception

for prior convictions, Almendarez-Torres and Bragg nevertheless remain

good law2, and as an intermediate appellate court we are bound by controlling

precedent.

       Alleyne did not overturn prior precedent that prior convictions are

sentencing factors and not elements of offenses. See id., at 2160 n.1; see

also Almendarez-Torres, 523 U.S. at 243-44. Because the United States

Supreme Court did not overturn the Almendarez-Torres exception, the

Alleyne rule includes the prior conviction exception. See Alleyne, 570 U.S.

at 2160 n.1; see also Almendarez-Torres, 523 U.S. at 243-44.



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2 As Almendarez-Torres remains good law, we will not disregard it unless
and until the Supreme Court holds to the contrary. See U.S. v. McDowell,
745 F.3d 115, 124 (4th Cir. 2014). Further, we are bound by Bragg. See
Czimmer v. Janssen Pharmaceuticals, Inc., 122 A.3d 1043, 1063 n.19
(Pa. Super. 2015).

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       The constitutionality of Section 9714 has been specifically considered

and upheld by this Court. See Commonwealth v. Reid, 117 A.3d 777, 784-

85 (Pa. Super. 2015) (acknowledging the Alleyne decision retained the

exception for prior convictions and thus held that Section 9714 is not

unconstitutional because it increases mandatory minimum sentences based

on prior convictions); see also Bragg, 169 A.3d at 333 (holding a mandatory

minimum sentence under Section 9714 for a person who had a prior conviction

for a crime of violence was permissible based on our holding in Reid).

       Further, our Supreme Court addressed this exact question when it

affirmed this Court’s holding in Bragg in a per curiam order after granting the

petition for allowance of appeal to review the issue of the constitutionality of

Section 9714. See Bragg, 169 A.3d at 1024.

       As   our   controlling    precedent     holds   that   Section   9714   is   not

unconstitutional, White’s second issue merits no relief.3

       Having found no merit in White’s arguments on appeal, we affirm the

judgment of sentence.

       Judgment of sentence affirmed.




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3 Although we are bound by controlling precedent, we acknowledge White’s
efforts to preserve this issue for further review.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/19




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