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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
             v.                          :
                                         :
                                         :
SHANNON DUKES                            :
                                         :
                   Appellant             :   No. 1765 EDA 2016

            Appeal from the Judgment of Sentence May 9, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0013075-2014


BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BOWES, J.:                            FILED MARCH 27, 2018

       Shannon Dukes appeals from the judgment of sentence of seventeen

to thirty-four years incarceration imposed after he was convicted of robbery,

possession of a firearm by a prohibited person, firearms not to be carried

without a license, carrying a firearm in public in Philadelphia, and possession

of an instrument of crime. We affirm.

       The pertinent facts are as follows. At approximately 12:50 a.m., on

November 4, 2014, the victim, Santino Nunez, returned home from work.

While parking his vehicle on Annsbury Street in Philadelphia, Mr. Nunez

observed four black men proceeding northbound on Fourth Street.            Mr.

Nunez waited in his car for a few minutes before walking to his home, which

was located one block north at 404 West Raymond Street. When Mr. Nunez

turned onto West Raymond Street, he saw two of the men walking towards

him.   As he was about to enter his home, Mr. Nunez became aware that
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those two men were on the street directly behind him. The taller of the two

men brandished a silver handgun, jumped onto Mr. Nunez’s porch, and

attempted to rob him by placing the gun within inches of his face and asking

for the items in his possession. Mr. Nunez feared for his own life, and that

of his family inside the home. When the assailant realized that Mr. Nunez,

who was eighteen at the time of the attack, was a young man, he relented,

and the two men fled towards Fourth Street without taking anything from

the victim.

      Mr. Nunez immediately reported the incident to the police.         Shortly

thereafter, Officers Richard Hough and William Lynch, who were responding

to an armed robbery by a group of black men on nearby Annsbury Street,

witnessed     Appellant,   his   co-defendant   Brandon   Bagby,   and   another

individual walking in the area.      The officers noted that men matched the

description of the Annsbury Street assailants provided by the flash

information. As they approached the group, Bagby fled. After a brief chase,

he was apprehended, and the police recovered a silver handgun, which

Bagby attempted to abandon while fleeing. The police then transported Mr.

Nunez to where they were holding Appellant on suspicion of armed robbery.

Mr. Nunez immediately identified Appellant and Bagby as his attackers.

      Based on the foregoing, Appellant was charged with the above-

enumerated offenses.        Prior to trial, he filed a motion to suppress Mr.

Nunez’s identification arguing, inter alia, that his detention was not

supported by reasonable suspicion, and that he was subjected to an unduly

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suggestive identification procedure.    On November 10, 2015, following a

hearing on the matter, the trial court denied Appellant’s motion to suppress.

On November 16, 2015, a jury convicted Appellant as described above, and,

subsequently, the court imposed an aggregate sentence of seventeen to

thirty-four years imprisonment.    Appellant filed a timely notice of appeal,

and was granted permission to file an untimely Rule 1925(b) concise

statement of errors complained of on appeal.      The trial court authored its

Rule 1925(a) opinion, and this matter is now ready for our review.

      Appellant raises three questions for our review:

      1. Did the trial court commit an error of law by denying
         [A]ppellant’s suppression motion?

      2. Was the evidence presented at trial sufficient to uphold the
         jury’s verdict of guilty?

      3. Does the jury’s verdict of guilty shock one’s sense of justice?

Appellant’s brief at 6-7.

      Appellant first challenges the trial court’s denial of his motion to

suppress Mr. Nunez’s out-of-court identification. When reviewing the denial

of a motion to suppress

      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,
      the appellate court is bound by those findings and may reverse
      only if the court’s legal conclusions are erroneous. Where the

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      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 the courts below are
      subject to plenary review.

Commonwealth v. Parker, 161 A.3d 357, 361-362 (Pa.Super. 2017)

(citation omitted).   Further, “[w]hen reviewing the suppression court’s

rulings, we consider only the suppression record.”       Id. at 362 (citation

omitted).

      Appellant’s challenge to the suppression court’s ruling is multi-faceted.

First, he claims that the trial court should have suppressed Mr. Nunez’s out-

of-court identification because the police utilized an unduly suggestive

identification procedure.    The Commonwealth contends that Appellant

waived this claim by failing to pursue it at the suppression hearing. Upon

review of the record, we agree with the Commonwealth’s assessment.

Although Appellant alleged that he was subjected to an unduly suggestive

identification procedure in his motion to suppress, he did not raise this as a

basis for relief during the suppression hearing.       See N.T. Suppression

Hearing, 11/10/15, at 5. Since Appellant did not raise this claim before the

suppression court, we are precluded from conducting meaningful appellate

review. Thus, this claim is waived. Pa.R.A.P. 302.

      Next, Appellant argues that the police lacked reasonable suspicion

when he was detained, and thus, Mr. Nunez’s out-of-court identification

should have been suppressed as fruit of the poisonous tree.         It is well-



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established that there are three categories of encounters between citizens

and the police:

      (1) A mere encounter, (2) an investigative detention, and (3)
      custodial detentions. The first of these, a “mere encounter” (or
      request for information), which need not be supported by any
      level of suspicion, but carries no compulsion to stop or to
      respond.     Second, an “investigative detention” must be
      supported by reasonable suspicion; it subjects a suspect to a
      stop and a period of detention, but does not involve such
      coercive conditions as to constitute the functional equivalent of
      an arrest. Finally, an arrest or “custodial detention” must be
      supported by probable cause.

Commonwealth v. Baldwin, 147 A.3d 1200, 1202 (Pa.Super. 2016)

(citation omitted).        In order to establish reasonable suspicion, an officer

“must be able to articulate something more than an inchoate and

unparticularized suspicion or hunch” that a suspect committed a crime.

Commonwealth v. Williams, 125 A.3d 425, 432 (Pa.Super. 2015) (citation

omitted).     In making this determination, we consider the totality of the

circumstances.       Id.     Further, “[a]mong the factors to be considered in

establishing a basis for reasonable suspicion are tips, the reliability of the

informants,    time,       location,   and     suspicious   activity,   including       flight.”

Commonwealth v. Morrison, 166 A.3d 357, 364-65 (Pa.Super. 2017)

(citation omitted).

      Essentially,     Appellant       calls   into   question   the    reliability    of   the

information upon which the police based its investigatory stop.                       He notes

that Officers Hough and Lynch were responding to a separate flash

information related to an alleged armed robbery on Annsbury Street, as


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opposed to the suspected armed robbery which occurred shortly thereafter

on West Raymond Avenue. Appellant contends that it was improper for the

police to have Mr. Nunez attempt to identify his assailants since the police

were initially responding to a separate incident. In this vein, he asserts that

the description of the suspects varied between the two incidents, and in any

case, Appellant did not match those descriptions. Moreover, he argues that

he was seized three blocks south of West Raymond Street, whereas the flash

information indicated that the suspects were last seen fleeing north from

West   Raymond    Street.    Thus,   he    concludes   that,   based   on   these

circumstances, it was unreasonable for the police to detain Appellant and to

permit Mr. Nunez to make an on-scene identification.

       At the suppression hearing, Philadelphia Police Officer Richard Hough

testified as follows. On November 4, 2014, he was dispatched to the area

around West Raymond Street at 12:53 a.m., following a report of an armed

encounter on Annsbury Street. N.T. Suppression Hearing, 11/10/15, at 6-8.

The dispatch report described the suspects as “[t]hree black males, one,

black leather jacket, red hoodie; number two, black hoodie; number three,

black hoodie, armed with guns trying to break in the front door.” Id. at 9.

       While traveling on Bristol Street, Officer Hough observed three black

males, “which fit the description almost to a T walking west on the highway.”

Id. at 10. His partner requested that the men stop, at which point, Bagby

fled north on Fourth Street. Id. at 11. Officer Hough stayed with the other




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two men, including Appellant, until Mr. Nunez arrived and identified

Appellant. Id. at 11-13.

         On cross-examination, Officer Hough testified that, at the time of their

seizure, one suspect was wearing a dark green jacket and red shirt, the

second was wearing a black jacket with green pants, and the third male was

wearing a black hoodie.1         Id. at 15-16.   In addition, he noted that the

dispatch report for the West Raymond Street incident described those

suspects as “four black males, black coat, jeans, Tims [(Timberland Boots)],

clean shaven, dark complected, with gun. No flash on the other.          Nothing

taken. Last going northbound on 4th Street. Male complainant inside.” Id.

at 17-18.       He then read into the record the biographical information

pertaining to Appellant taken after his arrest, which indicated, “[Appellant]

was [wearing a] dark green jacket over red shirt, dark hat, jeans, tan

boots.” Id. at 20. He conceded that Bristol Street was three blocks south of

West Raymond Street. Id. at 21. However, at the time of the stop, he did

not observe anyone else in the area that matched the flash information. Id.

at 23.




____________________________________________


1 Although Officer Hough initially testified that Bagby was wearing a dark
green jacket and red shirt at the time of his apprehension, he later clarified
that he had Bagby and Appellant confused. N.T. Suppression, 11/10/15, at
22-24. He noted that Bagby was wearing “a black jacket, green camo
pants.” Id. at 22.



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      Detective William Lynch also offered testimony on behalf of the

Commonwealth.      Detective, then Officer, Lynch, was partners with Officer

Hough at the time of the incident. Id. at 28. Detective Lynch corroborated

much of Officer Hough’s account of the event in question. In addition, he

clarified that Appellant’s jacket appeared to be a leather jacket “because it

was made of a shiny material.”        Id. at 32.     Further, Detective Lynch

asserted that the area was known for “numerous gunpoint robberies,” and

characterized it as a high crime area. Id. at 33-35.

      When reviewing the record of the suppression hearing, we find that, in

light of the totality of the circumstances, the suppression court did not err in

denying Appellant’s motion to suppress. Instantly, we observe that, at the

time of the stop, Officers Hough and Lynch were responding to the report of

an armed robbery, conveyed to the 911 operator by the purported victim.

That victim described her assailants as three black men, two of which were

wearing black hoodies, and one of which was wearing a black leather jacket

with a red hoodie underneath.      The officers observed Appellant with two

other black men only three blocks from the alleged incident, and only

minutes after the initial report. At that time, the three men were wearing

dark clothing similar to that described in the flash information, and Appellant

wore a red shirt underneath his jacket.        Officer Hough stated that the

individuals matched the description provided, and that there were no other

individuals in the area. Moreover, when the officers attempted to question

the men, Bagby fled the scene and attempted to abandon a firearm in his

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possession. Officer Lynch testified that the area was a high crime area, and

stated that Appellant’s black jacket appeared to be leather, even though he

later discovered that it was not.

      In   light   of   the   above,   when   considering   the   totality   of   the

circumstances, we find that the officers articulated sufficient reasons to

establish Appellant’s seizure was supported by reasonable suspicion.

Williams, supra; Morrison, supra. In so finding, we are not persuaded by

Appellant’s contention that discrepancies in the descriptions provided by the

flash information, and Appellant’s actual appearance at the time of the

arrest, undermined the officers’ reasonable belief that these men were

involved in the armed robbery nearby.

      Moreover, since the incident involving Mr. Nunez occurred minutes

later and only one street away from the Annsbury Street armed robbery, it

was reasonable for the officers to transport Mr. Nunez for an on-sight

identification. To the extent that Appellant’s argument can be construed as

asserting that an officer’s decision to transport a victim to provide an on-

sight identification must be supported by reasonable suspicion, he cites no

case law in support of this position, and we will not hold that to be the case

herein. As Appellant’s investigatory detention was supported by reasonable

suspicion, the suppression court did not err in denying his motion to

suppress. Hence, no relief is due.




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        Appellant’s second issue disputes the sufficiency of the evidence

underpinning his conviction.     In addressing a sufficiency challenge, we are

guided by the following principles:

        In reviewing the sufficiency of the evidence, we must determine
        whether the evidence admitted at trial, and all reasonable
        inferences drawn from that evidence, when viewed in the light
        most favorable to the Commonwealth as verdict winner, was
        sufficient to enable the fact finder to conclude that the
        Commonwealth established all of the elements of the offense
        beyond a reasonable doubt. The Commonwealth may sustain its
        burden by means of wholly circumstantial evidence. Further, the
        trier of fact is free to believe all, part, or none of the evidence.

Commonwealth v. Sunealitis, 153 A.3d 414, 419 (Pa.Super. 2016)

(citation omitted).

        Appellant does not directly contest any of the elements of the offenses

he was convicted of, but rather, he challenges Mr. Nunez’s identification of

him as his attacker. He posits that Mr. Nunez’s identification was tainted by

the police, and his testimony in this regard was too unreliable and

contradictory to be considered a sufficient basis for his conviction. Appellant

highlights portions of Mr. Nunez’s testimony where he described Appellant as

“clean shaven” at the time of the attack, when, in fact, Appellant had facial

hair.   Further, he emphasizes Mr. Nunez’s statements indicating the porch

where the incident occurred was not well lit, that he was focused on the gun

at the time of the attack, and that he had not previously seen Appellant, as

further proof that Mr. Nunez’s testimony was unreliable. Hence, in light of

Mr. Nunez’s unreliable and contradictory testimony, he concludes “[n]o



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reasonable jury could have found beyond a reasonable doubt that

[A]ppellant was the person who committed a robbery.” Appellant’s brief at

17.

      Instantly, Mr. Nunez identified Appellant as his assailant in court. N.T.

Trial, 11/10/15, at 37; 39.   He also explained the relevant circumstances

surrounding the event in question at trial.    Mr. Nunez stated that, as he

attempted to enter his house, “[Appellant] pulled out a gun and told me to

move away from the door, to shut, up, move to the side, move to the side.”

Id. at 38. He indicated that, at this time, Appellant was “[d]irectly in my

face, not even a foot away,” and that the event lasted three to five minutes.

Id. at 40-41. Mr. Nunez testified that he viewed the firearm for around “30

seconds from the moment he was pointing it at me[,]” and that he observed

Appellant’s face “within that whole two-minute, three-minute situation.” Id

at 41; 49.    He conceded that the porch was “really dark,” and that the only

light was provided by nearby streetlights. Id. at 43.

      Following the robbery, Mr. Nunez contacted police and provided them

with a description of his attackers, noting that Appellant was wearing “dark

blue jeans, Timberlands, and probably like a sweater.” Id. at 47. He stated

that the police officer explained to him that they had his attackers “in

custody, and they wanted me to identify them.”          Id. at 46.   Mr. Nunez

asserted that, when he made the identification, he did so based on “what

they were wearing.” Id. at 48-49.




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      On cross-examination, Mr. Nunez testified that he informed the police

that his attacker was clean-shaven and had a dark complexion, and that he

could see Appellant’s face because of the nearby streetlight. Id. at 70-71.

He conceded that, based on the arrest photo from the night in question,

Appellant had facial hair. Id. at 74. Nonetheless, Mr. Nunez clarified that,

when he identified Appellant, he did not see hair on his face. Id.            He

explained, “I guess I missed the hair on the bottom of his face here,” and

that he did not see Appellant’s mustache “because it’s a little bit of a lighter

mustache.” Id. at 75. Further, he noted that when the police took him to

identify his assailants, “I took a moment, looked at them, and said yes[,]”

indicating that the men in custody were his attackers.          Id. 76.   He also

clarified that the police officer who transported him to the on-scene

identification did not tell him that they had apprehended his assailants, but

only that they had stopped men that “matched the description that I gave.”

Id. at 83-84. Finally, Mr. Nunez testified that he could not remember if he

told the dispatcher that Appellant was clean-shaven. Id. at 89.

      When viewing this evidence in the light most favorable to the

Commonwealth      as   verdict   winner,   we   find   that   the   Commonwealth

established sufficient evidence to prove beyond a reasonable doubt that

Appellant robbed Mr. Nunez on the night in question.                  Contrary to

Appellant’s protestations, we do not find that Mr. Nunez’s testimony

regarding the identity of his assailant was so unreliable and inconsistent to

undermine his conviction. Mr. Nunez explained that he identified Appellant

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as his attacker based largely on this clothing. Moreover, he stated that he

could see Appellant’s face with the aid of the streetlights, and that he was

able to view Appellant for over two minutes during the encounter.

       Further, although Appellant had facial hair at the time of his arrest,

and Mr. Nunez may have initially described his attacker as clean-shaven, he

explained that he did not see Appellant’s facial hair during the incident or

on-scene identification.   Mr. Nunez stated that he immediately recognized

Appellant as his attacker on the night in question, and identified him as such

on the record during trial. The jury was free to believe all, part, or none of

Mr. Nunez’s testimony, Sunealitis, supra, and it clearly found him credible

in this regard. As the record supports Mr. Nunez’s identification, no relief is

due.

       Finally, Appellant offers a challenge to the weight of the evidence

presented against him. In reviewing such a claim, we do not step into the

shoes of the trial judge, but rather,

       Appellate review of a weight claim is a review of the exercise of
       discretion, not of the underlying question of whether the verdict
       was against the weight of the evidence. 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. 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.




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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations

omitted).

      In this respect, Appellant relies primarily on his challenge to the

sufficiency of the evidence, arguing “the exact same evidence upon which

the jury based its verdict cannot possibly justify a guilty verdict.”

Appellant’s brief at 17. After enunciating the appropriate standard, the trial

court observed:

      In the instant case, Appellant and his co-defendant were
      immediately identified by [Mr. Nunez] after the police stopped
      Appellant, co-defendant Bagby, and David Flipper. At trial, [Mr.
      Nunez] identified Appellant as the individual who confronted him
      outside of 404 West Raymond Street and pointed a silver
      handgun directly in his face. Here, the jury chose to credit the
      testimony of [Mr. Nunez], the police officers and detectives
      investigating the case. The fact that the jury found Appellant
      guilty after weighing all of the evidence does not shock one’s
      sense of justice.

Trial Court Opinion, 1/23/16, at 5. We discern no abuse of discretion in the

trial court’s conclusion that Appellant’s verdict was not against the weight of

the evidence. Thus, this claim fails.

     Judgment of Sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/27/18



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