J-A19018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    STEPHIN RILEY,                              :
                                                :
                       Appellant.               :   No. 1964 EDA 2018


         Appeal from the Judgment of Sentence Entered, June 5, 2018,
             in the Court of Common Pleas of Philadelphia County,
            Criminal Division at No(s): CP-51-CR-0013192-2014.


BEFORE:      PANELLA, P.J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                           FILED OCTOBER 21, 2019

        Appellant Stephin Riley appeals from the judgment of sentence imposed

following his conviction of aggravated assault and possession of an instrument

of a crime (“PIC”).1 We affirm.

        On the night of November 3, 2014, Katrina Rumyantseva was attacked

with a rock as she was walking home. Moments after the attack, Riley was

apprehended      by    police,   and    Ms.    Rumyantseva   made   a   one-on-one

identification of Riley as the perpetrator. Riley was arrested and charged with

aggravated assault, PIC, simple assault and recklessly endangering another

person.     Riley filed a motion to suppress all physical and identification

evidence. The suppression court conducted a hearing, and thereafter denied

____________________________________________


1   18 Pa.C.S.A. §§ 2702(a), 907(a).
____________________________________
* Former Justice specially assigned to the Superior Court.
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the motion.   Riley also filed a motion in limine to preclude DNA evidence,

which was denied by the trial court.

      The matter proceeded to a non-jury trial. The trial court detailed the

relevant trial testimony as follows:

             [Ms.] Rumyantseva . . . testified that on November 3, 2014,
      at around 11 p.m., she was walking home from a Ross store at
      the Roosevelt Mall when she stopped at an ATM machine near
      Cottman and Bustleton Avenues right in front of a bus stop. She
      testified that while there, she noticed a man at the bus stop
      wearing a gray hoodie that was up and dark[-]bluish pants. There
      was nobody else out on the street with them at that time. As Ms.
      Rumyantseva started to walk home from Cottman Avenue along
      Bustleton Avenue[,] she felt like someone was walking behind her.
      Ms. Rumyantseva testified that she turned around and saw the
      man with the gray hoodie that was up walking behind her really
      close about five to ten feet away. As Ms. Rumyantseva continued
      to walk home, she testified that she felt something hit her in the
      back of the head from behind causing her to fall to the ground and
      she began to scream. Ms. Rumyantseva testified that she looked
      up and saw the man who was trying to take her bag which she
      clutched onto. Ms. Rumyantseva testified that the man then
      started striking her between roughly five to ten times with a hard
      heavy object which she later identified as a rock.          As Ms.
      Rumyantseva continued to scream and attempt to protect her
      purse and face, another man, later identified as John Jackmon,
      came to her aid and the attacker ran away in the direction he
      came from. Mr. Jackmon testified at trial that when he arrived on
      the scene he started yelling at the attacker who then started
      running down Bustleton Avenue. Mr. Jackmon also testified that
      the attacker was wearing dark clothing and what looked like a
      hoodie. The ambulance then arrived on the scene and picked up
      Ms. Rumyantseva.

           While Ms. Rumyantseva was in the ambulance receiving
      medical attention, police officers quickly arrived and presented a
      man to Ms. Rumyantseva as a suspect in her attack. Ms.
      Rumyantseva testified that the man was handcuffed and had his
      hood down when police first showed him to her. At this point, Ms.
      Rumyantseva was not sure if she could identify him so she
      requested for the hood to be placed on his head. Once the police


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     put the hood up, Ms. Rumyantseva was able to positively identify
     [Riley] as her attacker. Ms. Rumyantseva specifically testified
     that the difference with the hood up, “she was able to see the
     features she had seen before.” In Ms. Rumyantseva’s testimony
     at both hearings, she described the man who attacked her as 50s
     -60s in age, average height, dark[-]skinned, facial hair on sides
     of face by ears, and wearing a gray hoodie that was up and
     dark[-]bluish pants.

            Police Officer Christopher McCue testified at both hearings,
     that he and his partner Officer Glaviano, received a radio call on
     the night of November 3, 2014, concerning an attack on the 7800
     block of Bustleton Avenue. Officer McCue testified that flash
     information was given out of a white male, gray hoodie, dark
     pants that had attempted to assault a female and then fled
     towards the boulevard on [B]orbeck Street. When the officers
     arrived at that area a few minutes later, Officer McCue testified
     that they saw [Riley] standing at a corner bus stop, only a few
     blocks away from the attack, with a gray hoodie on with the hood
     up. Officer McCue testified that the officers stopped [Riley], had
     him put his hands on the police car and frisked him for their safety.
     That is when Officer McCue noticed [Riley] had blood on his right
     hand. Also during the time of the stop, [Riley] made a statement
     to the officer “just kill me now, just kill me now.” At that time,
     Officer McCue put [Riley] in his patrol vehicle, went over police
     radio, and asked for the complainant to be brought to their
     location. Officer Ashley Capaldi radioed back to bring [Riley] to
     their location as the complainant was being worked on by the
     medics. The officers then took [Riley] to that location at 7800
     Bustleton Avenue and walked him in handcuffs to the back of the
     medic unit. Officer McCue testified that the complainant, Ms.
     Rumyatseya, initially said that she was unsure if [Riley] was her
     attacker. Then[,] she asked for [Riley’s] hood to be put up[,] and
     as soon as the hood went up she identified him as the attacker.

            At trial, Officer Capaldi testified that she also received a
     radio call on the night of November 3, 2014, about a female being
     attacked in the area of Borbeck and Bustleton. When Officer
     Capaldi and her partner Officer Esquilin arrived at the location, the
     medic unit was already there with the complainant and she
     testified that she observed the complainant’s head, ear, and hands
     covered in blood. Officer Capaldi spoke briefly with the
     complainant to get some information about her attacker and what
     had occurred. Based on the information she received, she relayed
     the flash information over police radio and then she and her

                                     -3-
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     partner went to survey the surrounding area. Officer Capaldi
     testified that she observed [Riley] on Bustleton Avenue in front of
     a bus stop and Officers McCue and Glaviano were also arriving
     there at that time. Officer Capaldi and her partner allowed the
     other officer[s] to stop [Riley] and they returned back to the
     complainant. After Officer Capaldi and her partner returned to the
     complainant to check on her, they received a call over the radio
     to bring the complainant to where [Riley] had been stopped.
     Officer Capaldi testified that due to the complainant’s condition,
     she requested the officers bring [Riley] to them for identification
     purposes. When the officers arrived with [Riley], Officer Capaldi
     testified that they came up into the medic unit to see the
     complainant.

           After treatment by the paramedics, Ms. Rumyantseva was
     taken to the hospital. Ms. Rumyantseva sustained injuries to the
     right side of her face and head requiring stitches on her ear and
     head, and she had a CAT scan of her head. A detective, John
     Palmiero, came to the hospital to speak with her.              Ms.
     Rumyantseva confirmed to the detective that the man presented
     to her was her attacker. The detective testified that he also took
     some photos of Ms. Rumyantseva’s injuries and swabs of the blood
     that was on her right hand to test her DNA. The detective then
     went to the scene of where the incident happened where he
     observed a large rock with blood on it that was by the curb. The
     detective testified that he believed that the rock may have been
     the one used in the attack on Ms. Rumyanseva. The rock was
     then taken back to headquarters to process and the blood that
     was on the rock was swabbed for DNA. Finally, the detective went
     and saw [Riley] and swabbed the blood on his right hand as well
     as the blood that was on [Riley’s] hooded sweatshirt. He also
     obtained a swab from the inside cuff of the hooded sweatshirt.

           Forensic scientist, Fatimot Adekanmbi, testified as a DNA
     expert at trial, that the DNA obtained from Ms. Rumyantseva’s
     blood on her right hand excluded [Riley] as a source, the DNA
     obtained from the blood on the rock was inconclusive, the DNA
     obtained from [Riley’s] blood on his right hand and [his] hooded
     sweatshirt excluded Ms. Rumyantseva as a source, but the DNA
     obtained from the inside cuff of [Riley’s] hooded sweatshirt, while
     inconclusive, did not exclude Ms. Rumyantseva as a source. M[s].
     Adekanmbi went on to testify that this basically means that the
     DNA obtained from the inside cuff of [Riley’s] hooded sweatshirt
     has [Riley’s] DNA in it and then possibly three other people, with
     one possibly being Ms. Rumyantseva.

                                    -4-
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Trial Court Opinion, 10/1/18, at 2-7 (unnecessary capitalization omitted)

      Based on the evidence presented, the trial court found Riley guilty

aggravated assault and PIC. On June 5, 2018, the trial court sentenced him

to five to ten years of imprisonment for aggravated assault, and a concurrent

one and one-half to three years of imprisonment for PIC. Riley filed a post-

sentence motion which the trial court denied. He then filed a timely notice of

appeal.   The trial court ordered Riley to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. Riley filed a concise statement,

and with leave of court, filed a supplemental concise statement.      The trial

court then filed its Pa.R.A.P. 1925(a) opinion.

      Riley raises the following issues for our review:

      1. Did not the lower court err by denying [Riley’s] motion to
      suppress identification, where [Riley] was stopped and frisked
      without reasonable suspicion either that he was the doer of the
      crime or that he was armed and dangerous, where [Riley] was
      presented to the victim for identification under grossly suggestive
      circumstances, and where the Commonwealth did not show that
      subsequent in–court identifications were untainted by the initial,
      unconstitutional out-of-court identification?

      2. Did not the lower court err and abuse its discretion in denying
      [Riley’s] motion in limine to exclude “inconclusive” DNA evidence
      as irrelevant and prejudicial, where such evidence did not make
      the existence any salient fact more or less likely?

      3. Did not the lower court err in unconstitutionally shifting the
      burden of proof onto [Riley] by finding him guilty because DNA
      analysis failed to exculpate or exclude [Riley] as the doer?

      4. Did not the lower court err in denying [Riley’s] post-sentence
      motion for a new trial, where the court’s verdict, premised only on
      inferences from improperly admitted and barely probative facts,


                                     -5-
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       was so against the weight of the evidence that it shocks the
       conscience?

Appellant’s Brief at 5-6. We will address each of his issues in turn.

       In his first issue, Riley claims that the trial court erred in denying

suppression of physical and identification evidence obtained by police after

they subjected him to an investigatory detention without reasonable

suspicion. When we review the ruling of a suppression court:

       we must determine whether the factual findings are supported by
       the record. When it is a defendant who has appealed, we must
       consider only the evidence of the prosecution and so much of the
       evidence for the defense as, fairly read in the context of the record
       as a whole, remains uncontradicted. Assuming that there is
       support in the record, we are bound by the facts as are found and
       we may reverse the suppression court only if the legal conclusions
       drawn from those facts are in error.

Commonwealth v. Hicks, 208 A.3d 916, 925 (Pa. 2019). “[A]ppellate courts

are limited to reviewing only the evidence presented at the suppression

hearing when examining a ruling on a pretrial motion to suppress.”

Commonwealth v. Bush, 166 A.3d 1278, 1281-82 (Pa. Super. 2017)

(citation omitted).

       An individual is lawfully subjected to an investigative detention, or Terry

stop,2 when the officer has reasonable suspicion that criminal activity is afoot.


____________________________________________


2  Terry v. Ohio, 392 U.S. 1 (1968) (permitting police to make a temporary,
investigatory stop of a suspicious individual in order to determine his identity,
or to maintain the status quo momentarily while obtaining more information,
if the investigating officers can point to specific and articulable facts which, in
conjunction with rational inferences deriving therefrom, reasonably warrant
the intrusion).

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See Commonwealth v. Adams, 205 A.3d 1195, 1203 (Pa. 2019) (holding

that an investigative detention is constitutionally permissible if an officer

identifies specific and articulable facts that led the officer to believe that

criminal activity is afoot, considered in light of the officer’s training and

experience). “[I]n determining whether the officer acted reasonably . . ., due

weight must be given, not to his inchoate and unparticularized suspicion or

‘hunch,’ but to the specific reasonable inferences which he is entitled to draw

from the facts in light of his experience.” Id. (quoting Terry, 392 U.S. at 27).

While individual facts by themselves may not be enough to establish

reasonable suspicion, a collection of those facts taken together may be

sufficient to do so. Commonwealth v. Cook, 735 A.2d 673, 677 (Pa. 1999).

In other words, in order to determine whether the police had reasonable

suspicion, we must consider the totality of the circumstances — i.e., “the

whole picture.” Commonwealth v. Thomas, 179 A.3d 77, 83 (Pa. Super.

2018) (citation omitted).

      Further, a police officer need not personally observe the suspicious

conduct leading to the reasonable belief needed for a Terry stop, and may

rely upon information received over the police radio to justify the initial stop.

Commonwealth v. Arch, 654 A.2d 1141, 1144 (Pa. Super. 1995). In such

cases, the factors that must be considered in justifying an investigatory stop

include the specificity of the description of the suspect in conjunction with how

well the suspect fits the given description, the proximity of the crime to the


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sighting of the suspect, the time and place of the confrontation, and the nature

of the offense reported to have been committed.           Commonwealth v.

Jackson, 519 A.2d 427, 430 (Pa. Super. 1986).           Although specificity of

description is only one of the factors examined in justifying a stop, it is of

great importance in situations where the investigating officers have not

personally observed suspicious behavior; the police need to have identification

information specific enough to reasonably conclude that the party they are

stopping is actually the person for whom they are searching. Id. Close spatial

and temporal proximity of a suspect to the scene of a crime can also heighten

a police officer’s reasonable suspicion that a suspect is the perpetrator for

whom the police are searching. Id. at 431. Moreover, the time and place of

an encounter may indicate that a person, conspicuous through their solitary

presence at a late hour or desolate location, may be the object of a search.

Id.

      Riley initially argues that the trial court erred by denying suppression

because (1) the description which led police officers to stop him was too

generic to support a stop; and (2) he did not match the generic description

that police had been given.      According to Riley, the description of the

perpetrator provided to the responding officers in the police radio call was a

“white male wearing a gray hoodie, dark pants, dark shoes.” Appellant’s Brief




                                     -8-
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at 19 (quoting N.T. Trial, 4/5/18, at 87).3 Riley argues that “[t]he information

was totally devoid of any details about height, weight, build, age, hairstyle,

facial hair or lack thereof, or any characteristic beyond a generic account of

the doer’s clothing.” Id. at 19-20. In Riley’s view, the information provided

to police was insufficient to support a Terry stop. Riley further contends that

he did not match the description provided to police, noting that Officer McCue

testified that Riley is not a white male, but is “black” or “African American.”

Id. at 20 (quoting N.T. Suppression, 5/15/17, at 44-45).4

       Riley relies on Jackson, where police responded to a burglary in

progress, and were told by the complainant that “one of the perpetrators, a



____________________________________________


3 As noted above, when reviewing a claim of suppression court error, our
review is limited to the suppression court record. We may not consider
testimony or evidence outside the suppression court record, such as the trial
testimony quoted by Riley. See Bush, 166 A.3d at 1281-82.

4 Riley additionally claims that, after police stopped him, he should not have
been frisked because there is no indication in the record that police saw a
bulge in his pocket or any other sign that he was armed and dangerous. See
Commonwealth v. Mathis, 173 A.3d 699, 722 n.9 (Pa. 2017) (noting that,
to proceed from a stop to a frisk, the police officer must reasonably suspect
that the person stopped is armed and dangerous). Accordingly to Riley, since
the frisk was not justified, the evidence which flowed from the frisk, including
the observance of blood on his hand and his statement to police to “just
f**king kill me now,” should have been suppressed. Appellant’s Brief at 21.
Riley did not raise this issue at the suppression hearing. See Pa.R.A.P. 302(a)
(providing that issues not raised in the lower court are waived and cannot be
raised for the first time on appeal). Nor did he raise it in his concise statement.
See Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (holding that if
an appellant is directed to file a concise statement of matters to be raised on
appeal pursuant to Pa.R.A.P. 1925(b), any issues not raised in that statement
are waived). Therefore, the issue is waived.

                                           -9-
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black male wearing a gray sweatsuit, ran east on Vine St.” Jackson, 519

A.2d at 440. The appellant was spotted within several minutes, and within a

few blocks of the crime.      He matched the description supplied by the

complainant in that he was a black male wearing a gray sweatsuit, and also

in that he was running, albeit towards rather than away from the scene of the

crime. Notably, the Jackson Court ruled that, while the investigating officers

had insufficient information to conclude that appellant was the perpetrator of

the crime, they were nevertheless justified in conducting an investigative

detention.    Id. at 442.   Indeed, the Jackson Court stated, “[i]n light of

appellant’s proximity and conformance with the limited description, the police

acted diligently in stopping him.” Id. at 441.

      The facts of this case are similar to those presented in Jackson. Here,

Officer McCue testified at the suppression hearing that, on the evening of

November 3, 2014, around 11:00 p.m., flash information was provided via a

police radio call that “a white male, gray hoodie, dark pants[,] had attempted

to assault [a] female and then fled towards the boulevard [via] Borbeck

Street.”     N.T. Suppression, 5/15/17, at 37.   The officer and his partner

surveyed the area. Id. Two to three minutes after the radio call, the officers

saw Riley and two other individuals standing at a bus stop on the corner of

the 7700 block of Roosevelt Boulevard, which was approximately three blocks

away from the scene of the attack. Id. at 39, 40, 43. Riley was wearing a




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gray hoodie with the hood up, and dark pants. Id. at 38, 41, 42. The other

two individuals at the bus stop did not match the flash description. Id. at 40.

        The suppression court determined that the police officers were justified

in stopping Riley, and explained the rationale for its suppression ruling as

follows:

        Here, the police officers arrived at the area a few minutes after
        the incident occurred and saw [Riley] standing at a corner bus
        stop, only a few blocks away from the attack, wearing a gray
        hoodie with the hood up, matching the flash information that they
        had received.

Trial Court Opinion, 10/1/18, at 8.

        The suppression court’s ruling is supported by the record. Riley fit the

description of the perpetrator in that he was wearing a gray hoodie and dark

pants. He was also located in close proximity to the crime scene, and within

minutes of the attack. Riley was also found on Roosevelt Boulevard, which

was the direction toward which the suspect was seen running, per the radio

call.   Additionally, the officers observed only two other individuals in the

vicinity at that late hour, and neither of those individuals matched the flash

description provided in the radio call.

        While the flash description was for a white male, and Riley is black, this

is but one of many factors to consider when viewing “the whole picture.”5



____________________________________________


5Moreover, given that Riley was wearing a sweatshirt with the hood up, pants,
and sneakers at the time of the attack, which occurred late at night, very little
of his skin would have been visible.

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Thomas, 179 A.3d at 83. As in Jackson, while the investigating officers had

insufficient information to conclude that Riley was the perpetrator of the attack

on Ms. Rumyantseva, they were nevertheless justified in conducting an

investigative detention, given Riley’s temporal and physical proximity to the

crime scene and conformance with the limited description of the clothing that

the attacker was wearing. Jackson, 519 A.2d at 441-42. Thus, in light of

the totality of the circumstances, we conclude that the record supports the

suppression court’s ruling that the officers had reasonable suspicion to

conduct an investigative detention of Riley. Accordingly, this aspect of Riley’s

first issue warrants no relief.

      Next, Riley argues that the suppression court erred in denying his

motion to suppress Ms. Rumyantseva’s one-on-one, out-of-court identification

of him as the perpetrator. Riley asserts that the out-of-court identification

procedure was unduly suggestive because he was the only person presented

to Ms. Rumyantseva on the night of the attack, he was presented to her while

he was in handcuffs and flanked by two police officers, and police commented

that he was “covered in blood.” Appellant’s Brief at 23. Riley further contends

that, when Ms. Rumyantseva expressed uncertainty as to whether he was her

assailant, police raised the hood of his sweatshirt over his head, further

obscuring his features, to obtain the victim’s identification of Riley as the

perpetrator. Id.




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      While one-on-one confrontations are generally condemned, those which

occur soon after the commission of crime are permissible if, indeed, not

favored. Commonwealth v. Allen, 429 A.2d 1113, 1121 (Pa. Super. 1981).

In reviewing the propriety of one-on-one 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).

      Importantly,   this   Court   has       ruled   that    “on-scene,     one-on-one

identifications, even where an appellant is handcuffed and officers ask a victim

to identify him as the perpetrator, are ‘not so suggestive as to give rise to an

irreparable likelihood of misidentification.’” Id. (citing cases); see also id. at

977-78 (affirming conviction based on victim’s one-on-one, crime-scene

identification of appellant viewed alone in police van, wearing handcuffs,

where police said they had someone for her to identify and that they had found

him   running   down    the   street    all     sweaty       and   just   tired-looking);

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Commonwealth v. Hale, 85 A.3d 570, 574-75 (Pa. Super. 2014) (where

victim had a sufficient opportunity to view appellant during the five minutes

he was in her apartment, and the period between the crime and her

identification was brief, denial of suppression affirmed even though appellant

was handcuffed and police asked victim to identify appellant as the

perpetrator); Commonwealth v. Armstrong, 74 A.3d 228, 239 (Pa. Super.

2013) (affirming conviction where, in less than ten minutes after the

attempted break-in, police drove the victim to see someone they had picked

up “running” through the apartment complex, appellant was shown to the

victim while in handcuffs, and the officers told the victim that “they wanted

[her] to . . . identify him as the same guy that was trying to break into [her]

apartment”).

      Here, Ms. Rumyantseva testified that she first noticed Riley at a bus stop

eight to ten feet away from her as she stopped at an ATM while walking home.

N.T. Suppression, 5/15/17, at 10. When she continued walking, she crossed

the street, and then noticed that someone was following her. Id. at 19. She

turned around and observed that it was the same individual, and that he was

only eight to ten feet behind her. Id. at 11. She described him as wearing a

gray sweatshirt with the hood up, and dark blue pants. Id. at 14. The victim

also indicated that there were street lights in the area.           Id. at 16.

Approximately a minute later, she was attacked from behind. Id. at 21. The

police brought Riley to the victim within five to ten minutes of the assault. Id.


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at 15. By that time, she was in an ambulance being treated by medics. Id.

at 14. When the officers asked her if she recognized Riley, his hood was down

on his shoulders. Id. She initially stated “I don’t know, yes, no.” Id. at 15.

However, at her request, police pulled the hood of the sweatshirt up over

Riley’s head.6 Id. at 38. At that point, Ms. Rumyantseva was “[a] hundred

percent” certain that Riley was her attacker. Id. at 15.

       The totality of the circumstances surrounding Ms. Rumyantseva’s

identification, particularly the promptness with which it was completed,

supports the suppression court’s determination that Ms. Rumyantseva’s out-

of-court identification was reliable and not unduly suggestive.              Ms.

Rumyantseva had sufficient time to view her attacker while she was at the

ATM, and, more specifically, when she turned around to see who was following

her. Riley fit the description of the attacker, as provided to police, in that he

was wearing a gray sweatshirt and dark pants. The identification was made

within five to ten minutes of the attack, and, once Riley’s hood was raised

over his head, the victim was “a hundred percent” certain that Riley was her

attacker.


____________________________________________


6 At the suppression hearing, Ms. Rumyantseva’s testimony was silent as to
who or what prompted the police to raise the hood of the sweatshirt over
Riley’s head. N.T. Suppression, 5/15/17, at 15, 30-31. However, Officer
McCue testified that Ms. Rumyantseva requested that police lift the hood of
Riley’s sweatshirt over his head. Id. at 38. Thus, the suppression record
supports the suppression court’s determination that the hood of Riley’s
sweatshirt was raised over his head at Ms. Rumyantseva’s request.


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       Further, no evidence presented at the suppression hearing indicated the

presence of special elements of unfairness that would have given rise to an

irreparable likelihood of misidentification by Ms. Rumyantseva. That Riley was

handcuffed, in the presence of police, and that the police asked the victim if

he was her attacker, are not elements so suggestive as to give rise to an

irreparable likelihood of misidentification.       See Moye, 836 A.2d at 976.

Further, any corrupting effect of the hood being placed on Riley’s head is

outweighed by other indicia of reliability.7 See id. (holding that the corrupting

effect of the suggestive identification, if any, must be weighed against the

other factors). Finding no special element of unfairness, we conclude that the

suppression court did not err in denying Riley’s motion to suppress the out-

of-court identification evidence.8

       In his second issue, Riley claims the trial court erred in denying his

motion in limine to exclude inconclusive DNA evidence.        In evaluating the

denial or grant of a motion in limine, our standard of review is well-settled:



____________________________________________


7 Riley also argues that the police officer’s comment to Ms. Rumyantseva that
“there was blood on him or he was covered in blood,” see N.T. Suppression,
5/15/17, at 32, provides further support that the identification procedure was
unduly suggestive. However, it is unclear from the record when this comment
was made. Indeed, the record suggests that this comment was made after
Ms. Rumyantseva identified Riley as the perpetrator. See id. at 30. Thus, we
do not consider it in our analysis.

8 Since we find that the out-of-court identification was not unduly suggestive,
it is not necessary to determine whether Ms. Rumyantseva’s subsequent in-
court identification had an independent basis.

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      When ruling on a trial court’s decision to grant or deny a motion
      in limine, we apply an evidentiary abuse of discretion standard of
      review. The admission of evidence is committed to the sound
      discretion of the trial court, and a trial court’s ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010) (citation

omitted).

      Only relevant evidence is admissible at trial. Pa.R.E. 402. Evidence is

relevant if it tends to make a material fact more or less probable than it would

be without the evidence. Id., 401. To be relevant and admissible, “evidence

need not be conclusive.” Commonwealth v. Crews, 640 A.2d 395, 402 (Pa.

1994). Even if relevant, however, evidence may be excluded “if its probative

value is outweighed by . . . unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting cumulative

evidence.” Pa.R.E. 403. Evidence is not unfairly prejudicial simply because it

is harmful to the defendant’s case. See Commonwealth v. Page, 965 A.2d

1212, 1220 (Pa. Super. 2009). The trial court is not required to “sanitize the

trial to eliminate all unpleasant facts from the jury’s consideration where those

facts are relevant to the issues at hand.”      Id. (citation omitted).    Rather,

exclusion of evidence on this ground “is limited to evidence so prejudicial that

it would inflame the jury to make a decision based upon something other than

the legal propositions relevant to the case.” Id. (citation omitted).




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      Riley contends that the trial court abused its discretion by admitting

irrelevant DNA evidence of blood found on Riley’s sweatshirt sleeve and the

rock which was inconclusive and “extremely complex.” Appellant’s Brief at

25. He argues that the analysis of the DNA samples recovered did not make

it any more or less likely that he was Ms. Rumyantseva’s attacker since (1)

none of the samples taken from Ms. Rumyantseva or the rock showed the

presence of Riley’s DNA; and (2) none of the DNA samples recovered from

Riley or his clothing showed Ms. Rumyantseva’s DNA. Riley additionally claims

that the Commonwealth’s expert, Ms. Adekanmbi, did not state that the DNA

found on Riley’s sleeve was “extremely strongly associated” with Ms.

Rumyantseva, or that it was “more likely than not” that she was the source of

the DNA or that she and Riley had ever interacted. Id. at 27-28. According

to Riley, the DNA evidence did not bear on the identity of the attacker, and

any possible probative it had was outweighed by the danger of unfair

prejudice, confusion, and misdirection of the fact-finder.

      Riley attempts to distinguish this case from Crews, supra, where our

Supreme Court determined that certain DNA evidence, although inconclusive,

was nevertheless relevant and admissible. It ruled as follows:

      The factual evidence of the physical testing of the DNA samples
      and the matching alleles, even without statistical conclusions,
      tended to make appellant’s presence more likely than it would
      have been without the evidence, and was therefore relevant. To
      be relevant, evidence need not be conclusive. Asked to evaluate
      the meaningfulness of evidence of a DNA match without an
      accompanying statement of statistical probability, appellant’s DNA
      expert likened such testimony to testimony that “I saw a blue

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      Chevrolet run over this dog.” Identifying the car as a blue
      Chevrolet does not specifically identify the offending car, but it is
      useful, admissible identification evidence. In the same way, the
      relevant, though inconclusive, DNA evidence was admissible in
      this case; its weight and persuasiveness were properly matters for
      the jury to determine.

Crews, 640 A.2d at 402-03 (internal citations and some quotation marks

omitted).

      In applying the Crews rationale to the present case, the trial court

concluded that the DNA evidence, though inconclusive, was relevant and

admissible to the issue of whether Riley was Ms. Rumyantseva’s attacker, and

that it was for the fact-finder to determine its weight. Trial Court Opinion,

10/1/18, at 10-11.

      We discern no abuse of discretion by the trial court in admitting the DNA

evidence.   The DNA evidence tended to support an inference that Riley

committed the crime because it showed a scientific possibility that Riley could

be the perpetrator. Specifically, the blood obtained from the inside cuff of

Riley’s sweatshirt had Riley’s DNA in it and possibly the DNA of three other

people, with one possibly being Ms. Rumyantseva. While the DNA evidence

was inconclusive, it was for the trial court, sitting as fact-finder, to determine

its weight and persuasiveness. See Crews, 640 A.2d at 403. Thus, Riley’s

second issue warrants no relief.

      In his third issue, Riley claims that, “after listening to a day of complex,

technical, confusing, and ultimately irrelevant testimony regarding DNA

analysis, the trial court immediately found Mr. Riley guilty and made a factual

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finding that ‘the blood results [sic], though inconclusive, do not specifically

exclude [Riley].” Appellant’s Brief at 30 (quoting N.T. Trial, 4/6/18, at 76-

77). He argues that it was not his burden to show that the evidence excluded

him as the perpetrator, and that, in making this factual finding, the trial court

improperly shifted the burden of proof to Riley to show that the DNA evidence

excluded him.9

       Riley’s claims are belied by the record.           First, contrary to Riley’s

suggestion otherwise, the trial in this matter took place over the course of two

days, and consisted of numerous witnesses and exhibits. Second, the trial

judge, sitting as fact-finder, did not base her verdict of guilt solely on the fact

that the DNA evidence did not exclude Riley as the perpetrator. Rather, the

trial judge arrived at her verdict after she “reviewed all of the evidence

presented as well as the notes that [she] took during the trial.” N.T. Trial,

4/6/18, at 76 (emphasis added).            Additionally, the trial judge specifically

acknowledged that the DNA evidence was not conclusive, and explained that

such evidence was merely one of many factors that informed her decision:

       Based on the evidence that has been presented, I do find that Mr.
       Riley is guilty of the aggravated assault and the possession of an
____________________________________________


9 We observe that, under our appellate rules, the parties’ briefs must include
a discussion of each question raised on appeal and a “citation of authorities
as are deemed pertinent.” See Pa.R.A.P. 2119(a); see also Commonwealth
v. Heggins, 809 A,2d 908, 912 n.2 (Pa. Super. 2002) (holding that an issue
identified on appeal but not developed in appellant’s brief of abandoned and
therefore waived). In his brief, Riley fails to cite to, let alone discuss, any
controlling case law or relevant authority which support his claim. While we
could find waiver on this basis, we decline to do so.

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J-A19018-19


      instrument of crime. My findings include the fact that the blood
      results, though inconclusive, do not specifically exclude the
      defendant. The clothing descriptions of the witnesses were the
      best descriptions, and they were consistent. I also considered the
      length of time that it took for apprehension of the defendant and
      the close proximity to the scene of the crime.

Id. at 76-77.

      Importantly, the trial court sitting as trier of fact is presumed to know

the law and correctly apply the burden of proof. See Commonwealth v.

Smith, 97 A.3d 782, 789 (Pa. Super. 2014). Based on the record before us,

Riley has failed to overcome that presumption. Thus, Riley’s third claim merits

no relief.

      In his final issue, Riley contends that the verdict of guilty was against

the weight of the evidence.      Our standard of review of a challenge to the

weight of the evidence is well-settled:

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

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal

citations    omitted).   “[I]t   is   for   the   fact-finder   to   make   credibility

determinations, and the finder of fact may believe all, part, or none of a

witness’s testimony.”    Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa.

                                        - 21 -
J-A19018-19


Super. 2009) (citations omitted). This Court may not substitute its judgment

for that of the fact-finder as to credibility issues or the weight to be given to

evidence.   Commonwealth v. Furness, 153 A.3d 397, 404 (Pa. Super.

2016). This standard applies even when the trial judge rendered the verdict

at issue as the finder of fact. See, e.g., Commonwealth v. Konias, 136

A.3d 1014, 1023 (Pa. Super. 2016) (applying the above standards to a weight

challenge following a bench trial).

      Further, a challenge to the weight of the evidence concedes that

sufficient evidence supports the verdict. Widmer, 744 A.2d at 751. Thus, to

allow an appellant “to prevail on a challenge to the weight of the evidence,

the evidence must be so tenuous, vague and uncertain that the verdict shocks

the conscience of the court.” Commonwealth v. Talbert, 129 A.3d 536, 545

(Pa. Super. 2016) (internal citation omitted).

      Riley claims the verdict must be overturned because it was so against

the weight of the evidence that it shocks one’s conscience. Riley argues that

the trial court did not find that Ms. Rumyantseva’s identification of Riley was

credible, or address her initial uncertainty, or that she appeared to identify

Riley as her assailant primarily based on the hood of his sweatshirt.

Appellant’s Brief at 32. Riley further claims that the trial court did not address

the fact that Riley is black, while initial descriptions of the perpetrator

indicated that he was white or Hispanic. Id.




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      In making his weight argument, Riley essentially asks this Court to make

different credibility determinations and weigh the evidence in his favor. This

we cannot do.     We are bound by the trial court determination that the

testimony of Ms. Rumyantseva, the police officers, and the other witnesses

was credible. See Trial Court Opinion, 10/1/18, at 12.

      Additionally, the trial court offered the following explanation for its

determination that the verdict was not against the weight of the evidence:

      [T]he verdicts in this case were supported by ample evidence at
      trial. [Riley] was identified as matching the radio flash that police
      received, based off the information given by Ms. Rumyantseva, at
      a location approximately three blocks away from the complainant’s
      location. The police officers testified to reaching the area of the
      call within a few minutes. The officers located [Riley] within a few
      minutes of receiving the call and surveying the area. The officers
      made this identification of [Riley] based off of the gray hoodie and
      dark pants that he was wearing. [Riley] also had blood on his right
      hand. When [Riley] was brought to Ms. Rumyantseva, she was
      able to immediately identify [Riley] as her attacker after his hood
      was put up by the officers. The DNA evidence, while inconclusive,
      could not specifically exclude Ms. Rumyantseva’s DNA from being
      the one found on the inside cuff of [Riley’s] hooded sweatshirt.
      Therefore, based on these reasons, the [c]ourt denied [Riley’s]
      post[-]sentence motion requesting a new trial because the verdict
      was in no way against the weight of the evidence nor against the
      interest of justice.

Trial Court Opinion, 10/1/18, at 13-14 (formatting altered).

      We find no abuse of discretion in the trial court’s determination. Our

review discloses that Ms. Rumyantseva was subject to extensive cross-

examination regarding her initial uncertainty that Riley was her assailant. See

N.T. Trial, 4/5/18, at 62-63.    Ms. Rumyantseva was also cross-examined

regarding the color of Riley’s skin, and she explained that, on the night of the

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J-A19018-19


attack, she observed that Riley was dark-skinned. See id. at 52, 60. Thus,

the trial court had a full opportunity to observe her testimony and to assess

the credibility of her explanations. After reviewing all the evidence, the trial

court found that the credible evidence identified Riley as Ms. Rumyantseva’s

attacker. As we discern no abuse of discretion by the trial court in determining

that its verdict was not so contrary to the evidence as to shock the conscience,

Riley’s final issue warrants no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/21/19




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