J. S25036/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                     v.                   :
                                          :
TYRIK VERNON,                             :         No. 2170 EDA 2015
                                          :
                          Appellant       :


           Appeal from the Judgment of Sentence, October 19, 2004,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0206571-2004


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


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                    FILED JUNE 21, 2017

        Tyrik Vernon appeals the judgment of sentence in which the Court of

Common Pleas of Philadelphia County sentenced1 him to serve a sentence of

7½ to 15 years’ imprisonment for robbery along with concurrent sentences

of 2 to 4 years for attempted murder, 2-4 years for aggravated assault, and

1-2 years for firearms not to be carried without a license.2      After careful

review, we affirm.

        The pertinent procedural and factual history, as recounted by the trial

court, is as follows:



1
   Originally, appellant was sentenced to an aggregate term of 10½ to
21 years’ imprisonment with all sentences consecutive to one another. The
trial court subsequently amended the sentences to run concurrently.
2
    18 Pa.C.S.A. §§ 3701, 2502, 2702, and 6106, respectively.
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                After [appellant’s] sentencing, his counsel filed
          a timely notice of appeal to the Superior Court.
          Direct appeal was initially dismissed on August 10,
          2006 because counsel failed to file a brief.
          [Appellant] then filed a pro se PCRA petition on
          August 21, 2006. This was never addressed by the
          court and no attorney was ever appointed.

                 On March 28, 2011 [appellant] filed another
          PCRA petition.     This one incorporated his 2006
          petition. Peter A. Levin, Esquire was appointed and
          he filed an amended PCRA petition on November 9,
          2012. One of his allegations is that trial counsel had
          been ineffective for failing to file Petitioner’s brief.
          Initially, Mr. Levin’s petition was dismissed for
          untimeliness without an evidentiary hearing but after
          appeal and remand, an evidentiary hearing took
          place and an appeal nunc pro tunc was granted
          after finding that court interference had prevented
          [appellant’s] 2006 PCRA timely pro se petition from
          being heard.

                [Appellant] has filed a Rule 1925 Statement of
          Matters Complained Of and claims his conviction
          should be reversed because of unreliable and/or
          tainted identification. He also claims the verdict is
          against the weight of evidence. . . .

          ....

                Complainant Kenneth Crosby testified that on
          October 3, 2003 he was walking on Diamond Street
          in North Philadelphia on his way to a friend’s house.
          At approximately 1:50 [p.m.], he saw [appellant] at
          the corner of 18th and Diamond in broad daylight
          and approached him on the street. Crosby asked
          [appellant] if he knew “where they sell weed.” They
          were approximately 10 inches apart from each other.
          [Appellant] told Crosby to follow him and the two
          walked together for about 5 minutes, spanning two
          blocks. [Appellant] walked on Crosby’s right side,
          approximately 6 inches from him.            At about
          2:00 [p.m.],     [appellant]  stopped    on    nearby
          Page Street to make a phone call which lasted


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          approximately 2 minutes. Crosby stood and waited
          for [appellant] from about 2 to 3 feet away during
          the phone call.

                Crosby and [appellant] were standing together
          on the 1500 block of Page Street when [appellant]
          pushed Crosby up against a car and pressed a silver
          gun against his stomach. Crosby testified he was
          able to see [appellant] close-up and unobstructed.
          [Appellant] demanded Crosby’s money.          At first,
          Crosby said that he could not give him any because
          it was not his. [Appellant] then threatened to shoot
          Crosby in the stomach. Crosby then gave up $100.
          [Appellant] instructed Crosby to stand still and then
          told him to walk away. Crosby began to run away
          but several seconds later, [appellant] shot Crosby in
          the back. As [appellant] fled, the victim saw him run
          up Page Street and make a right.

                 Crosby talked to detectives at the hospital and
          was later shown a photo array at a police station.
          Based on his description, detectives showed Crosby
          approximately 30 pictures of men on a computer.
          The victim spent 10 minutes looking at pictures and
          identified [appellant]. Crosby remembered a black
          mark on the man’s head and [appellant’s] face.
          Crosby told a detective he was sure he identified the
          right person and the detective printed out a picture
          of [appellant] which Crosby signed. At trial, Crosby
          testified he was still sure.

                 Eyewitness Natasha Jenkins testified that on
          October 3, 2003, she also saw and heard [appellant]
          shoot Crosby on the 1500 block of Page Street.
          Jenkins was in the passenger seat of a car with her
          neighbor, Diane Washington returning from grocery
          shopping. The car was parked on the opposite side
          of the street approximately 15 feet from [appellant]
          and they were about to unload the car. Jenkins
          testified that she saw two men “tussling” and saw
          [appellant] demanding money. She saw [appellant]
          hit Crosby in the head with a gun. Seeing that a gun
          was involved, Jenkins told her neighbor to close the
          car door, and forget unpacking the groceries. Two


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          shots were fired and Jenkins saw [appellant] run
          west on Page Street. Jenkins testified that she saw
          [appellant’s] face.

                 Jenkins talked to the police approximately an
          hour after the shooting and gave a statement. She
          identified [appellant] as “about 5’6”, 5’7”, braids
          hanging from the back. He had on a red baseball
          cap, 76’ers jacket red and blue.” Police asked her to
          come to a police station to look at pictures and she
          was shown approximately 50 photos but could not
          make an identification that night.

                On October 14, 2003[,] a detective visited
          Jenkins at her home. She was shown sixteen photos
          and identified a photo of [appellant] but said she
          wasn’t 100% sure. At trial she testified to being
          “85%-95%” sure. She testified she wasn’t certain
          because the man who committed the crime had
          braided hair at the time, while the man in the picture
          and [appellant] at trial did not.       Nevertheless,
          Jenkins testified that the man in the picture had the
          same face as the man whom she saw shoot Crosby.

                Jenkins’ neighbor and the driver of the car,
          Diana [sic] Washington, told the jury she had a clear
          view of what happened and who was involved. From
          about ten feet away, Washington saw two men
          struggling. She told [appellant] to “get off of him.”
          While Washington did not see a gun, she testified
          she heard two shots go off. After the first shot,
          Washington began to drive west on Page Street.
          She then heard another shot. She drove around the
          block, from Norris to 16th Street, and returned to
          Page Street where she saw Crosby had fallen on the
          street.

                 On the night of the shooting, Washington did
          not talk to police and was not forthcoming the next
          day when detectives visited her house. But ten days
          later, on October 14, 2003, detectives returned to
          her house and this time she took time and viewed a
          group of 8 photographs. She described Crosby’s
          assailant as a young man with braids, wearing a red


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              hat and a red shirt with number 3. She testified his
              braids hung out of his baseball cap. Washington
              identified a picture of [appellant] as the doer, and
              she signed the photo.

                    At trial, Washington testified police had not
              said anything to her when they showed her the
              pictures other than whether she could identify the
              guy she saw.

Trial court opinion, 8/22/16 at 1-4.

      On October 19, 2004, the trial court conducted a sentencing hearing.

At   the      commencement      of     the   hearing,   appellant’s   attorney,

Jeffrey Muldawer, Esq., brought to the attention of the trial court a pro se

motion for extraordinary relief prepared by appellant in which appellant

argued that the evidence was insufficient to support a conviction and that

the verdict was against the weight of the evidence. The trial court denied

the motion.

      Although the trial court imposed a sentence at the hearing with

consecutive rather than concurrent terms, the docket indicates that

sentencing was deferred until January 20, 2005.         On that date, the trial

court imposed the sentence from which appellant appeals.

      Before this court, appellant contends that the verdict was against the

weight of the evidence.

                   [T]he weight of the evidence is
                   exclusively for the finder of fact who is
                   free to believe all, part, or none of the
                   evidence and to determine the credibility
                   of the witnesses.      An appellate court
                   cannot substitute its judgment for that of


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                 the finder of fact . . . thus, we may only
                 reverse the lower court’s verdict if it is so
                 contrary to the evidence as to shock
                 one’s sense of justice. Moreover, where
                 the trial court has ruled on the weight
                 claim below, an appellate court’s role is
                 not to consider the underlying question
                 of whether the verdict is against the
                 weight of the evidence, . . . rather,
                 appellate review is limited to whether the
                 trial court palpably abused its discretion
                 in ruling on the weight claim.

           Commonwealth v. Kim, 888 A.2d 847, 851
           (Pa.Super. 2005) (citations and quotations omitted).
           A motion for a new trial based on a challenge to the
           weight of the evidence concedes the evidence was
           sufficient to support the verdict. Commonwealth v.
           Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

     Before addressing the merits of appellant’s argument, we must

address the Commonwealth’s contention that appellant waived this issue.

The Commonwealth asserts that the issue is waived because appellant did

not file a post-sentence motion or motion for reconsideration until many

years after his sentence became final. However, appellant made the claim

concerning the weight of the evidence in his motion for extraordinary relief

before the trial court on October 19, 2004.       This court is satisfied that

appellant preserved his claim. See Pa.R.Crim.P. 607(A).

     Turning to the merits of the argument, appellant claims the verdict

was against the weight of the evidence because the identification evidence

was unreliable and conflicting, the witnesses made no identifications when



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they were shown photographs but later identified appellant; no lineup as to

identification was ever held, even though one was ordered at the preliminary

hearing; there was conflicting testimony by the Commonwealth witnesses as

to whether the assailant had braids; and defense witnesses testified as to

never seeing appellant with braids.

           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
           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).

     Initially, appellant contends that the testimony of Kenneth Crosby

(“Crosby”), the victim, was unreliable for multiple reasons and the accuracy



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of his prior descriptions of his assailant is dubious.   When Crosby initially

described his assailant to the police, he stated that the assailant had braided

hair that stuck out the back of his cap down his neck. (Notes of testimony,

8/25/04 at 44.) However, during trial, Crosby testified that his assailant did

not have braided hair and that he said that he did because he was “nervous;

I was in pain.” (Id. at 45.) Appellant asserts that Crosby gave an initial

description of his assailant and then recanted that description at trial to

better describe the person that he subsequently identified as his assailant,

appellant.

      Appellant further charges that Crosby was able to identify appellant in

a photo array due to “a black mark on his head.” (Id. at 38.) However,

Crosby did not include the black mark in his initial description made to the

police. (Notes of testimony, 8/27/04 at 47.) Appellant asserts that Crosby

would not have been able to see this alleged black mark at the time of the

incident because it would have been covered by a cap.        Appellant argues

that Crosby attempted to untruthfully rehabilitate his earlier inconsistent

description by trying to refer to another identifying characteristic of

appellant.

      Appellant points out other inconsistencies in Crosby’s testimony in that

he testified that he had never seen appellant before (notes of testimony,

8/25/04 at 50), but also stated that he had seen him once or twice. (Id. at

51.) Additionally, appellant asserts that Crosby’s testimony was unreliable



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and conflicting because he was a drug-selling and drug-using runaway who

repeatedly changed his story regarding the description of appellant.

      Regarding the reliability of Crosby’s identification of appellant based on

the factors set forth in Brown, Crosby certainly had the opportunity to see

his assailant as he testified that he talked to him and walked with him before

the attack, and it stands to reason that he would take note of someone who

robbed and shot him.          Furthermore, Crosby testified that he was

“101 percent sure” that appellant was his assailant. (Id. at 52.) While it is

true that Crosby did describe appellant as having his hair in braids at the

time of the attack, and he did not have braids in the photograph where

Crosby identified appellant, this fact alone does not render the identification

unreliable, even though a defense witness testified he had never seen

appellant wear braids.    See Commonwealth v. Maute, 485 A.2d 1138,

1144 (Pa.Super. 1984) (Evidence of a conflict in evidence is not fatal to the

Commonwealth’s     case   because   the   Commonwealth      if   not   bound   by

everything its witnesses say, and the jury can believe, all, part, or none of

the testimony.)   Further, Diane Washington (“Washington”) also described

the assailant with braids.       Id. at 105.      Given the totality of the

circumstances, Crosby’s identification was sufficiently reliable to support the

determination that appellant was the assailant.

      Appellant next contends that the identification made by another

witness, Natasha Jenkins (“Jenkins”), was also conflicting and unreliable.



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First, on the day of the incident, Jenkins could not identify the assailant

when asked to look at pictures on a computer of possible perpetrators.

However, she later identified appellant as the assailant when the police

showed her two cards that contained 16 photographs on October 14, 2003.

(Notes of testimony, 8/25/04 at 74-75.)            Appellant characterizes it as

“puzzling” that Jenkins could not initially make an identification but could

11 days later. Further, Jenkins testified that she was only 85-95% sure of

her identification of appellant as the assailant.           Jenkins changed her

description of the assailant from light to dark skinned.         (Id. at 63, 80.)

Jenkins also initially identified the assailant as shorter than the 5’11” that

the parties stipulated was appellant’s height.      (Id. at 80; 8/27/04 at 75.)

Appellant     argues   that   Jenkins’s   identification   was   the   product   of

suggestiveness, and her testimony was unreliable and conflicting.

      With respect to Jenkins’s identification of appellant, she was able to

view the perpetrator at the time of the crime and at fairly close range.

Jenkins was not totally accurate in her description of appellant in terms of

his height. Though not totally certain of her identification of appellant, she

was approximately 90% certain.            Although appellant asserts that the

inconsistencies in her testimony were the result of suggestiveness by the

police department, there is nothing in the record to support such a

conclusion.    Once again, despite some inconsistencies, a jury could find

appellant guilty based on this testimony.



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      Appellant also argues that the testimony of the third Commonwealth

witness, Washington was also unreliable and conflicting in that she did not

identify appellant until 11 days after the incident took place.         She gave a

description of the assailant as having braids hanging out the back of his

baseball cap and a medium complexion.          (Notes of testimony, 8/25/04 at

105.) Despite that description, Washington identified appellant from a list of

photographs even though the photo did not depict any braids. (Id. at 106.)

Appellant   also   argues   that   this    identification    is   the   product   of

suggestiveness. Appellant asserts that the court in the preliminary hearing

ordered another lineup which might have alleviated these reliability and

consistency problems.

      Similarly, with respect to Washington’s testimony, she witnessed the

crime or at least some of the crimes as they occurred. She testified that she

observed the incident from a close vantage point.           As with Crosby’s initial

description, Washington believed that braids were hanging out from under

appellant’s cap.   (Id. at 106.)   Washington testified that she never told

anyone she was not completely sure of the identification of appellant. (Id.

at 107.) As with the other witnesses, the inconsistencies in the descriptions

were left to the jury to render its credibility determinations.         Once again,

appellant raises the issue of suggestiveness, but there is nothing in the

record to support that conclusion.        Similarly, it is unclear what a lineup

would establish.



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      As the identification testimony was sufficiently reliable and was found

credible by the jury, the verdict is not so contrary to the evidence as to

shock the conscience. Based on the record before this court, we do not find

that the trial court abused its discretion when it declined to grant appellant’s

post-trial motion concerning the weight of the evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/21/2017




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