Antwon Sanders appeals from the judgment of sentence of twelve and one-half to twenty-five years incarceration imposed by the trial court after he was convicted of two counts of aggravated assault, and one count each of possession of an instrument of crime ("PIC") and persons not to possess firearms. After careful review, we affirm.
The pertinent facts follow. At approximately 3:00 p.m. on February 20, 2009, three high school students, Fateem Gresham, Deshaoun Williams, and Rashan Singletary, were walking together in the area of 60th and Irving Streets in Philadelphia. Appellant approached the boys and, after walking past them, turned around and pulled a firearm on the boys, firing five to ten shots. Mr. Gresham was shot in the back, suffering severe injuries. Police arrived shortly thereafter and Mr. Gresham was transported to the University of Pennsylvania Hospital. The other two individuals managed to escape unharmed.
One week after the shooting, Detective William Farrell visited Mr. Gresham in the hospital. An unidentified doctor permitted the detective to speak with Mr. Gresham, although he was being prepared for surgery. Detective Farrell presented Mr. Gresham with a photographic array. Mr. Gresham placed his finger on a photograph of Appellant. However, Mr. Gresham stated that he was too weak to sign his name on the photographic array. Accordingly, Detective Farrell asked Mr. Gresham's mother, whom he stated was present in the room, to sign the array. At trial, Mr. Gresham testified that he had no memory of this interaction and that following the shooting he was semi-conscious for one month and one-half. Mr. Gresham did spend part of his time in the hospital in a coma. He also remarked that he had no memory of the shooting itself. Mr. Gresham's mother also testified that she was not allowed to be present when the photographic array was given to her son.
Approximately two months after the initial identification, Detective Farrell conducted an interview with Mr. Gresham. Detective Farrell stated that Mr. Gresham described the attack, again identified Appellant as the person who shot him, and signed a written statement to that effect. Mr. Gresham recalled that during this interview the detective informed him what had happened.
Another detective, Detective Matthew Farley, interviewed Deshaoun Williams. Mr. Williams, at the time of the interview, was a minor and was in custody for unrelated charges. Detective Farley maintained that Mr. Williams asserted that he saw the shooting and described the shooter as an individual with a funny-shaped head wearing a green and black hoodie and black trench coat. Mr. Williams also reportedly described the attacker as being 5'4" or 5'5", skinny, and seventeen years of age. Appellant was 5'6" and 130 pounds at the time of his arrest. At trial, Mr. Williams testified that he was in a pizza shop at the time of the shooting and did not see the incident. He further provided that when he was interviewed by police, he was intoxicated and requested to speak with his mother and was informed that she could not see him.
Ultimately, after the denial of a suppression motion relating to the photographic identification, a jury found Appellant guilty of the aforementioned charges. Subsequently, the court sentenced him to an aggregate term of incarceration of twelve and one-half to twenty-five years. Appellant timely filed a post-sentence motion, which the trial court denied. This appeal ensued. Appellant now raises four issues for our consideration.
Appellant's brief at 6.
Appellant's third issue challenges the sufficiency of the evidence. Since such a claim, if successful, prohibits re-trial, we address this issue first. See Commonwealth v. Stokes, 2011 PA Super 261, 38 A.3d 846.
Commonwealth v. Mobley, 14 A.3d 887, 889-890 (Pa.Super.2011).
Appellant's argument is less than developed and the only citation provided is to our standard of review. The limited argument that Appellant does make is that the Commonwealth's case was contradictory and of "questionable veracity." Appellant's brief at 16. In presenting this position, Appellant appears to argue that there was insufficient evidence to support his identification. See Appellant's brief at 17 ("there was insufficient evidence for the jury to conclude beyond a reasonable doubt that the Appellant was accurately identified and therefore that each and every element of the crimes against the Appellant had been proven.").
The Commonwealth responds that Appellant has ignored the appropriate standard of review for sufficiency claims. We agree. The evidence must be viewed in a light most favorable to the verdict winner and the credibility of the witnesses is not to be re-weighed on appeal. Since the prior identifications were admitted as substantive evidence, the jury was free to conclude that Appellant was the shooter.
Appellant also challenges the court's pre-trial suppression ruling, which permitted Mr. Gresham's photographic identification to be introduced into evidence. Our standard and scope of review in suppression matters is established.
Commonwealth v. Feczko, 10 A.3d 1285, 1287 (Pa.Super.2010) (en banc). When analyzing the admission of identification evidence, a suppression court must determine "whether the challenged identification has sufficient indicia of reliability[.]" Commonwealth v. Bruce, 717 A.2d 1033, 1037 (Pa.Super.1998). This question is examined by focusing on the totality of the circumstances surrounding the identification. Id. at 1036. In deciding the reliability of an identification, a suppression court should evaluate the opportunity of the witness to see the criminal at the time the crime occurred, the witness's degree of attention, the accuracy of any description given, the level of certainty when identification takes place, and the period between the crime and the identification. Id. at 1037.
Appellant argues that Mr. Gresham was not sufficiently cogent and lucid to make an accurate identification when he was shown the photographic array. He submits that the detective did not question a doctor about any drugs that had been administered to Mr. Gresham, who at the time of the identification was being prepared for surgery. Appellant asserts that the reliability of the identification is suspect because Mr. Gresham was unable to sign the photographic array and was under the influence of drugs. Furthermore, according to Appellant, "there was an absence of corroborating circumstances indicating that Gresham had seen with any degree of certainty the person who shot him[.]" Appellant's brief at 13. The Commonwealth counters that because Appellant concedes that there was no deliberate police misconduct, suppression of the pretrial identification was unwarranted.
We find the rationale expressed in Commonwealth v. O'Bryant, 320 Pa.Super. 231, 467 A.2d 14 (1983), persuasive. The O'Bryant Court reasoned that the purpose of a suppression order regarding exclusion of identification evidence is to prevent improper police action.
Appellant next presents a weight of the evidence argument.
Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003) (citations omitted). Hence, a trial court's denial of a post-sentence motion "based on a weight of the evidence claim is the least assailable of its rulings." Commonwealth v. Diggs, 597 Pa. 28, 949 A.2d 873, 880 (2008). Conflicts in the evidence and contradictions in the testimony of any witnesses are for the fact finder to resolve. Commonwealth v. Tharp, 574 Pa. 202, 830 A.2d 519, 528 (2003).
Appellant contends that because both Mr. Gresham and Mr. Williams recanted or testified they did not see the shooter, and since Mr. Gresham stated that he was only semi-conscious when the detective presented him with the photographic array, the verdict was against the weight of the evidence. In addition, Appellant posits that the Commonwealth's theory that the witnesses recanted because they were intimidated is unsupported by any evidence of record. Indeed, Appellant points out that the witnesses testified that they were not frightened. The Commonwealth replies that the trial testimony of Mr. Gresham and Mr. Williams was implausible and "demonstrated that they had developed amnesia only because they were terrified." Commonwealth's brief at 8.
Although we agree with Appellant that there was no direct evidence that the witnesses changed their stories because they were afraid, the jury was still free to make credibility determinations. Hence, the jury was allowed to reject the trial testimony of Mr. Gresham and Mr. Williams as lacking credibility. This Court is not permitted to reweigh such credibility determinations on appeal. A jury decision to credit certain evidence and reject other testimony is appropriate; therefore, the trial court did not abuse its discretion in concluding that its sense of justice was not shocked by the verdict.
Appellant contends that a recantation is the greatest equivocation possible and that neither Mr. Gresham nor any other witness gave a positive unqualified identification. The Commonwealth counters that a Kloiber instruction is not warranted where there is no in-trial identification. According to the Commonwealth, "the refusal to identify a defendant at trial does not implicate any of the Kloiber factors." Commonwealth's brief at 12. The Commonwealth highlights that the jury instruction itself presupposes an in-court identification and that a refusal to identify a defendant in court is not a failure to identify on a prior occasion. Lastly, the Commonwealth posits that the issue at bar "was the credibility of the eyewitnesses' recantations at trial, not their ability to see the shooter, and their credibility was fully explored on both direct and cross examination." Commonwealth's brief at 13.
We evaluate whether a Kloiber instruction is necessary under an abuse of
We do note that in this case, the prior photographic array identification by Mr. Gresham could not have properly been used as substantive evidence of identification because he did not testify to making the prior identification
The trial court in its opinion relied exclusively on the statement in Brady, supra, that out-of-court declarations rendered under highly reliable circumstances are admissible. It failed to account for later decisions such as Lively, supra, which limited the holding of Brady. The court did not discuss whether or how Mr. Gresham's mother's signature on the photographic array constituted a writing
It is settled that in-court identification evidence must be received with caution if the witness in his testimony or at prior times was not positive as to the identity of the defendant. Furthermore, any positive evidence of identity is weakened by qualifications, hedging, or inconsistencies in the witness's testimony and must be received with caution. In addition, there was evidence introduced at trial that Mr. Williams could not have seen Appellant because he testified that he was not at the scene. Of course, the court could have instructed the jury that if it believed that Mr. Williams was not present at the scene, that it should consider with caution his prior identification, but if it did not believe his trial testimony in this regard, it need not receive the prior identification evidence with caution.
Although we disagree with the Commonwealth's broad assertion that identification evidence should not be received "with caution" unless an in-court identification is at issue, we decline to hold that the trial court abused its discretion herein. Instantly, the trial court did issue an instruction pertaining to the identification evidence. The court stated,
N.T., 2/16/10, at 26-28.
In this instruction, the court expressly noted that the witnesses did not identify Appellant at trial and instructed the jury to consider whether the identification was qualified by hedging or inconsistencies. The court further remarked that the jury was to consider all of the circumstances under which the identifications occurred. Therefore, the jury was apprised of the issue concerning the witnesses' prior identifications and failure to identify Appellant at trial. Accordingly, we hold that the trial court did not commit reversible error in failing to instruct the jury that it must accept the prior identifications with caution where there was no in-court identification. Unlike the typical Kloiber situation, where there is a damaging in-court identification of the accused, the same type of concerns are not present where a witness declines to identify the defendant in court.
Judgment of sentence affirmed.
Judge PLATT Concurs in the Result.
Pa.R.E. Rule 803.1(1)-(2).