J-S29008-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JUNIOR BRIGNOL                             :
                                               :
                       Appellant               :   No. 3854 EDA 2016

            Appeal from the Judgment of Sentence October 12, 2012
              In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-00011815-2009


BEFORE:      PANELLA, J., MURRAY, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                          FILED SEPTEMBER 11, 2018

        Junior Brignol challenges the judgment of sentence entered in the

Philadelphia County Court of Common Pleas. We affirm Appellant’s conviction

for criminal conspiracy, 18 Pa.C.S.A. § 903(a)(1). But we must vacate his

judgment of sentence and remand for resentencing based on Alleyne v.

United States, 570 U.S. 99 (2013), and Commonwealth v. Valentine, 101

A.3d 801 (Pa. Super. 2014).

        The relevant facts and procedural history of this case are as follows.

Dawud Keitt was waiting for a friend outside of a convenience store in

Philadelphia. Mr. Keitt noticed a car stopped at a red light for 15-20 seconds.

There were five men in the car. One passenger pointed at Mr. Keitt, who began

walking down the street in the opposite direction. The car made a U-turn and
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   Former Justice specially assigned to the Superior Court.
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stopped, and its occupants alighted and followed Mr. Keitt. He glanced over

his shoulder as he heard one of the men shout, “Shoot him. Get him!” He

began running as he saw Appellant raise a gun in his direction. Mr. Keitt was

shot once in the leg. He spotted Appellant fleeing after firing the gun.

      Police responded to the scene, and called for medical assistance. Mr.

Keitt provided a description of the car and its occupants. Moments later, police

stopped the car and arrested two men still inside. Police later apprehended

Appellant and another suspect. The officers brought the men to the hospital

where Mr. Keitt was being treated, and he identified Appellant as the shooter.

      Appellant filed a motion to suppress Mr. Keitt’s identification, which the

court denied. After a mistrial due to juror illness, a second jury convicted

Appellant of criminal conspiracy, and acquitted him of attempted murder and

related charges. The court sentenced him to a mandatory minimum of 5-10

years’ incarceration. Appellant’s direct appeal rights were later reinstated nunc

pro tunc, and this timely appeal followed.

      Appellant claims the police told Mr. Keitt they arrested everyone from

the vehicle. Appellant posits this statement compelled Mr. Keitt to identify one

of the men brought to his hospital room as the shooter. Appellant argues the

court erred by denying his suppression motion, as the identification

procedures were unfairly tainted. We disagree.

      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

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      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
      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).

      “It is within the suppression court’s sole province as factfinder to pass

on the credibility of witnesses and the weight to be given to their testimony.

The suppression court is free to believe all, some or none of the evidence

presented at the suppression hearing.” Commonwealth v. Elmobdy, 823

A.2d 180, 183 (Pa. Super. 2003) (citation 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
      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). “Moreover, an

in-court identification may be admissible despite the inadmissibility of a pre-


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trial identification where the in-court identification is not tainted by the prior

identification.” Commonwealth v. Wade, 33 A.3d 108, 114 (Pa. Super.

2011) (citation omitted).

      We find Wade instructive here. In that case, the victim saw Wade sitting

in the driver’s seat of the victim’s car. Though it was nighttime, the victim

could clearly see Wade’s face due to nearby street and house lights. The victim

ordered Wade to get out of his car, and Wade threatened to shoot him in

response. Wade then sped off in the car, leading police on a chase before

ultimately crashing the vehicle. After the crash, police told the victim they had

apprehended the man who stole his vehicle, and asked him to come to the

hospital to identify him. The victim identified Wade at the hospital, and again

during Wade’s trial.

      Wade challenged the out-of-court and in-court identifications. The trial

court denied his suppression motion. On appeal, the panel held that, even

assuming the out-of-court identification was improper because police told the

victim they had apprehended the man who stole his car, the in-court

identification was sufficiently independent. See id., at 114-115. The Wade

panel noted the victim observed Wade from a close, well-lit distance; the

victim testified he paid particular attention to Wade because Wade threatened

him; and the victim’s description of Wade was accurate. See id., at 114.

      Here, Mr. Keitt testified at the suppression hearing. He identified

Appellant as the man who shot him. See N.T. Suppression, 10/25/11, at 27.

Mr. Keitt stated that on the day he was shot, he was walking down the street

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at around 1:45 p.m. and noticed a car of men driving slowly next to him. See

id., at 28. The car stopped, and he had an unobstructed view of the men in

the vehicle, including Appellant. See id., at 31. He saw one man in the vehicle

point to him; he identified the man pointing at him as Appellant’s nephew.

See id. Mr. Keitt began quickly walking away, just as he saw three of the men

exit the vehicle and heard one shout, “Get him, shoot him, shoot him.” Id.,

at 30.

         He looked back, and saw Appellant, gun in hand, chasing him. See N.T.

Suppression, 10/25/11, at 30. Appellant followed him down two blocks, while

Mr. Keitt periodically looked over his shoulder at his pursuer. See id., at 31.

Appellant fired a shot at him, which missed, and then a second shot, which hit

Mr. Keitt in the back of the leg. See id. Before collapsing, he saw Appellant

running away. See id., at 31.

         While Mr. Keitt was being treated in the hospital for his gunshot wound,

an officer told him the police apprehended “everybody that was … in the car.”

Id., at 36. Officers escorted four handcuffed men into his hospital room for

identification. See id., at 33. He identified one of the men as an accomplice,

and identified Appellant as the shooter. See id., at 34.

         The suppression court acknowledged the officer’s statement about

apprehending “everybody” could be suggestive. Nevertheless, the court

observed that Mr. Keitt credibly testified “with an extreme degree of certainty

as to who his assailant was, and his level of certainty was not shaken on cross-

examination.” N.T. Suppression, 10/25/11, at 48. And, we note that despite

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the police informing Mr. Keitt they apprehended “everybody,” Mr. Keitt only

positively identified two of the men shown to him as involved in the shooting.

See id., at 34-35. Based on the factors enumerated in Moye and Wade, we

find the court did not err by denying Appellant’s suppression motion. See

Moye, 836 A.2d at 976; Wade, 33 A.3d at 114.

      Turning to Appellant’s second issue, he challenges the imposition of his

mandatory minimum sentence as unconstitutional under Alleyne.

      In Alleyne, the United States Supreme Court held any facts that lead

to an increase in a mandatory minimum sentence are considered elements of

the crime, which must be presented to a jury and proven beyond a reasonable

doubt. See 570 U.S. at 103. Where “application of a mandatory minimum

sentence gives rise to illegal sentence concerns, even where the sentence is

within the statutory limits, such legality of sentence questions are not

waivable.” Valentine, 101 A.3d at 809 (citation and brackets omitted).

Further, “[t]he United States Supreme Court has held that when a decision of

this Court results in a new rule, that rule applies to all criminal cases still

pending on direct review.” Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.

Super. 2014) (citations omitted).

      Appellant was sentenced under 42 Pa.C.S.A. § 9712(a). As both parties

and the trial court recognize, this specific statute, which required a five-year

mandatory minimum for offenders who visibly possessed a firearm during the

commission of a crime of violence, was held unconstitutional by a panel of this

Court in Valentine, 101 A.3d at 812. This rendered Appellant’s sentence

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illegal. Consequently, we are constrained to vacate Appellant’s judgment of

sentence, and remand for resentencing without application of the mandatory

minimum.

      Conviction affirmed. Judgment of sentence vacated. Case remanded for

resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/11/18




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