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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARRYL JONES,
Appellant No. 2423 EDA 2012
Appeal from the Judgment of Sentence Entered July 20, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0016321-2008
BEFORE: BENDER, P.J.E., OLSON, J., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 03, 2016
Appellant, Darryl Jones, appeals pro se from the judgment of sentence
of an aggregate term of 25 to 50 years’ incarceration, followed by 53 years’
probation, imposed after he was convicted of several counts of armed
robbery and related offenses. Appellant raises various claims, including a
challenge to the legality of mandatory minimum sentences imposed pursuant
to 42 Pa.C.S. § 9712. After careful review, we affirm Appellant’s
convictions, but vacate his judgment of sentence and remand for
resentencing.
At approximately 6:30 p.m. on November 2, 2008, Appellant
committed an armed robbery of Patricia Cassidy and her boyfriend, Chris
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*
Retired Senior Judge assigned to the Superior Court.
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Gaglione, taking both victims’ wallets. N.T. Trial, 1/27/11, at 110-112, 113,
115. Several hours later, at around 10:35 p.m., Appellant committed
another armed robbery of brothers Christian and Michael Pekula, taking both
men’s wallets and Christian’s cell phone. Id. at 70, 75-76. After the
robbery, Christian Pekula called the police and provided a description of
Appellant. Id. at 82, 85.
Around midnight, two Philadelphia Police Officers, who were patrolling
in the area, spotted Appellant and believed he matched the description of
the armed robber. As the officers drove their marked police car past
Appellant, one of the officers observed Appellant discard something that
“appeared to be a firearm….” Id. at 147. The officers stopped and exited
their vehicle, and as one officer went to secure the weapon, the other officer
approached Appellant and asked for identification. Id. at 148. Appellant
pulled out a wallet and the officer “noticed a bunch of IDs … for white
males.” Id. Appellant, a black man, could not explain why he had
identification cards for white males. Id.
At that point, the officer “went to secure [Appellant] … for the
investigation, because of the firearm on the ground and the IDs,” and
Appellant “began swinging at [the officer].” Id. Both officers ultimately
forced Appellant to the ground and placed him under arrest. Id. at 149.
Shortly thereafter, Christian Pekula was brought to the scene of Appellant’s
arrest and Pekula immediately identified Appellant as the man who had
robbed him. Id. at 83. Due to cuts on Appellant’s face that he sustained
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when he resisted arrest, he was transported to the hospital, where Patricia
Cassidy also positively identified Appellant. Id. at 117. Additionally, at trial,
Christian Pekula, Patricia Cassidy, and Chris Gaglione all identified Appellant
as the individual who robbed them at gunpoint. Id. at 70, 110-111, 131.
On September 29, 2011, at the close of his jury trial, Appellant was
convicted of, inter alia, four counts of robbery, one count of unlawful
possession of a firearm, and one count of possessing an instrument of
crime.1 On July 20, 2012, Appellant was sentenced to an aggregate term of
25 to 50 years’ incarceration, which included three mandatory minimum
terms of 5 years’ incarceration pursuant to 42 Pa.C.S. § 9712 (Sentences for
offenses committed with firearms). The court also imposed an aggregate
term of 53 years’ probation, to be served consecutively to Appellant’s
sentence of incarceration.
While Appellant filed a timely notice of appeal on August 14, 2012, the
following, complicated procedural history resulted in this Court only now
addressing the merits of his appellate issues. First, in response to the trial
court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, Appellant’s counsel timely filed a Rule 1925(c)(4)
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1
Appellant was also charged with two more armed robberies that had
occurred in close proximity to the robberies discussed supra. The victims in
those two incidents, Bernard Talmadge and Laura Dillingham, testified at
Appellant’s trial; however, the jury found Appellant not guilty of those
offenses.
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statement of his intent to file a petition to withdraw and an Anders brief.2
However, counsel did not file a petition to withdraw with this Court; instead,
on January 14, 2013, Appellant filed with this Court a pro se “Motion to
Remove Counsel.” On February 4, 2013, this Court issued a per curiam
order remanding Appellant’s case to the trial court for “an on-the-record
determination as to whether [] Appellant’s waiver of counsel is knowing,
intelligent and voluntary, pursuant to Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998)….” Order, 2/4/13. The trial court’s docket indicates that a
Grazier hearing was conducted, and the court granted Appellant’s request
to proceed pro se on appeal on March 21, 2013.
Then, on August 5, 2013, Appellant filed with this Court a pro se
“Application for Order of Transcripts and Records.” In response, this Court
issued another per curiam order, again remanding Appellant’s case for the
trial court to provide Appellant with all the transcripts and documents
pertinent to his appellate issues. See Order, 9/3/13. However, the trial
court failed to comply with our order and, consequently, on January 28,
2014, we issued a second order directing the trial court to provide the
necessary documents and transcripts to Appellant. See Order, 1/28/14.
Apparently, the trial court has now complied with our January 28, 2014
order.
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2
Anders v. California, 386 U.S. 738 (1967).
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On April 25, 2014, Appellant filed another pro se petition for remand
with this Court, asking us to direct the trial court to permit him to file a
supplemental Rule 1925(b) statement. On May 21, 2014, we issued another
per curiam order remanding Appellant’s case for the filing of a supplemental
Rule 1925(b) statement, as well as a supplemental Rule 1925(a) opinion by
the trial court. Appellant filed his pro se, supplemental Rule 1925(b)
statement on July 7, 2014.3 Therein, he raised 24 issues. The trial court
issued a responsive opinion on January 20, 2015. Appellant’s claims are
now ripe for our review.
In his pro se brief, Appellant sets forth the same 24 issues he
presented in his supplemental Rule 1925(b) statement. However, in the
argument portion of his brief, he only addresses the following four claims:
I. The denial of Appellant’s motion to suppress evidence was not
appropriate[.]
II. The evidence was insufficient to support [Appellant’s]
conviction for robbery.
II. There was insufficient probable cause to arrest [Appellant].
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3
Appellant also filed a “Second Supplemental” Rule 1925(b) statement on
November 11, 2014, raising an additional 12 claims, many of which asserted
that trial counsel acted ineffectively. In its opinion, the trial court does not
address the issues raised in this ‘second supplemental’ Rule 1925(b)
statement, presumably because Appellant had not requested, or been
granted, permission to file it. On appeal, the issues raised in Appellant’s
brief are the same as those set forth in his July 7, 2014 ‘supplemental
statement,’ and he does not challenge the trial court’s failure to address the
issues presented in his November 11, 2014 concise statement.
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IV. The imposition of [Appellant’s] mandatory sentences was
illegal under the laws of Pennsylvania.
Appellant’s Brief at 15, 28, 34, 37.
In Appellant’s first and third issues, he alleges that the trial court erred
by denying his pretrial motion to suppress because “the police had no
probable cause [or] reasonable suspicion that he had been involed [sic] in a
criminal offense to justify an investigative detention, much less probable
cause to justify an arrest, as well as [the search was] not made pursuant to
a warrant or consent.” Appellant’s Brief at 15. Appellant also devotes a
large portion of the argument in his first issue to contending that his stop
was illegal because he did not match the physical descriptions provided by
Christian Pekula and Patricia Cassidy.
Appellant did not present either of these claims in his Rule 1925(b)
statements and, consequently, these arguments are waived. See Pa.R.A.P.
1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).4
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4
We acknowledge that, in Appellant’s supplemental Rule 1925(b) statement,
he did refer to the lack of probable cause to support his arrest, but framed
that claim as a challenge to trial counsel’s ineffectiveness. See
Supplemental Rule 1925(b) Statement, 7/7/14, at 8 (“Trial counsel was
ineffective for failing to challenge the arrest of the appellant without
probable cause.”). In Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013),
our Supreme Court reaffirmed its prior holding in Commonwealth v.
Grant, 813 A.2d 726 (Pa. 2002), that, absent certain circumstances, claims
of ineffective assistance of counsel should be deferred until collateral review
under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546.
Holmes, 79 A.3d at 576. The specific circumstances under which
ineffectiveness claims may be addressed on direct appeal are not present in
(Footnote Continued Next Page)
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However, within Appellant’s first issue, he also maintains that Pekula’s
and Cassidy’s out-of-court identifications should have been suppressed
because they were made in unduly suggestive circumstances. While this
claim was preserved in Appellant’s supplemental Rule 1925(b) statement,
the Commonwealth correctly points out that in his pretrial suppression
motion, Appellant sought to suppress only the identification of Christian
Pekula; he did not move to suppress the identification made by Patricia
Cassidy. Accordingly, Appellant has only preserved his challenge to the
admission of Pekula’s out-of-court identification.5 See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal.”).
“Our standard of review of a denial of suppression is
whether the record supports the trial court's factual findings and
whether the legal conclusions drawn therefrom are free from
_______________________
(Footnote Continued)
the instant case. See id. at 577-78 (holding that the trial court may
address claim(s) of ineffectiveness where they are “both meritorious and
apparent from the record so that immediate consideration and relief is
warranted,” or where the appellant’s request for review of “prolix”
ineffectiveness claims is “accompanied by a knowing, voluntary, and express
waiver of PCRA review”).
5
In any event, we note that Appellant only briefly implies that the
circumstances surrounding Cassidy’s out-of-court identification were unduly
suggestive because she identified Appellant while he was hospitalized and
had bandages on his face. See Appellant’s Brief at 28. Appellant does not
explain how his face being bandaged, or the fact that he was in the hospital,
unjustifiably alluded to his guilt. He also does not provide any legal
authority to support such a suggestion. Accordingly, even if Appellant had
preserved his challenge to Cassidy’s identification, we would find his
undeveloped argument meritless.
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error.” Commonwealth v. McClease, 750 A.2d 320, 323 (Pa.
Super. 2000). Our scope of review is limited; we may consider
“only the evidence of the prosecution and so much of the
evidence for the defense as remains uncontradicted when read in
the context of the record as a whole.” Commonwealth v.
Maxon, 798 A.2d 761, 765 (Pa. Super. 2002). “Where the
record supports the findings of the suppression court, we are
bound by those facts and may reverse only if the court erred in
reaching its legal conclusions based upon the facts.” McClease,
750 A.2d at 323-24 (quoting In the Interest of D.M., 560 Pa.
166, 743 A.2d 422, 424 (1999))[;] Commonwealth v.
Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002) (en banc).
This is the standard of review we have applied in appeals
challenging the denials of motions to suppress identification
testimony. See, e.g., McElrath v. Commonwealth, 405 Pa.
Super. 431, 592 A.2d 740, 742 (1991).
“In reviewing the propriety of identification evidence, the
central inquiry is whether, under the totality of the
circumstances, the identification was reliable.” McElrath v.
Commonwealth, 405 Pa. Super. 431, 592 A.2d 740, 742
(1991). The purpose of a “one on one” identification is to
enhance reliability by reducing the time elapsed after the
commission of the crime. Commonwealth v. Bullock,
259 Pa. Super. 467, 393 A.2d 921 (1978).
“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.” McElrath, 592 A.2d at 742. 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.” McElrath, 592 A.2d at 743 (citation
omitted). The corrupting effect of the suggestive
identification, if any, must be weighed against these
factors. Commonwealth v. Sample, 321 Pa. Super. 457,
468 A.2d 799 (1983). 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
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misidentification. Commonwealth v. Brown, 417 Pa.
Super. 165, 611 A.2d 1318 (1992).
Commonwealth v. Meachum, 711 A.2d 1029, 1034 (Pa.
Super. 1998), appeal denied, 556 Pa. 689, 727 A.2d 1119
(1998).
Commonwealth v. Moye, 836 A.2d 973, 976 (Pa. Super. 2003).
Here, Appellant acknowledges that Pekula’s identification was made
just over two hours after the robbery. See Appellant’s Brief at 24-25. He
also admits that Pekula “immediately identified [Appellant] as his
assailant….” Id. at 25 (citation to the record omitted). Appellant contends,
however, that at the time Pekula identified him, Appellant “had sustained
severe injuries to the left side of his face and eye, and was therefore[]
identified on the basis [that] he was black [and] sitting in the back of a
police cruiser.” Id. at 24.
Preliminarily, Appellant’s claim that Pekula identified him while he was
sitting in the back of the police car is inaccurate. At the suppression hearing
on April 20, 2011, Philadelphia Police Officer Frederick Repetsky, who
transported Pekula to the location where he identified Appellant, stated that
at the time of Pekula’s identification, Appellant “was standing next to a
police car on the passenger side toward the rear” of the car. N.T.
Suppression Hearing, 4/20/11, at 15. Officer Repetsky testified that
Appellant’s hands were handcuffed behind his back, one officer was standing
behind him, and several other officers were standing off to the side. Id. at
16. This Court has held that out-of-court identifications made in similar
circumstances were not unduly suggestive. See Commonwealth v.
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Kearney, 92 A.3d 51, 66 (Pa. Super. 2014) (finding victim’s identification
was not unduly suggestive even though the appellant was handcuffed to a
bench at the State Police barracks); Commonwealth v. Armstrong, 74
A.3d 228, 239 (Pa. Super. 2013) (holding that the identification of the
defendant while he was in handcuffs was not unduly suggestive).
Additionally, even if Appellant had been sitting in the back of the police
car, that fact, alone, would not lead us to conclude that the circumstances of
Pekula’s identification were unduly suggestive. See Moye, 836 A.2d at 977
(affirming admission of out-of-court identification made by complainants
when Moye was “alone and handcuffed in a police van”); Commonwealth
v. Allen, 429 A.2d 1113 (Pa. Super. 1981) (upholding admission of out-of-
court identification, made just over an hour after the crime, and where the
defendants were handcuffed in police van). In McElrath, this Court
declared that “[a]bsent some special element of unfairness, prompt, one-on-
one identification is not per se violative of the accused’s constitutional rights,
even where the accused has been returned to the scene of the crime in a
police cruiser.” McElrath, 592 A.2d at 743 (citations omitted). The only
‘special element of unfairness’ that we could infer from Appellant’s limited
argument is that the injuries to his face impacted the fairness of Pekula’s
identification. In this regard, Appellant claims that “his head was swollen
and bleeding” due to “severe injuries to the left side of his face and eye.”
Appellant’s Brief at 24, 33. However, Appellant does not elaborate on how
the injuries were unduly suggestive, or argue that they impacted Pekula’s
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ability to recognize Appellant’s face as that of the person who robbed him at
gunpoint just over two hours earlier. Additionally, Officer Repetsky testified
that while Appellant had cuts and was bleeding when Pekula identified him,
his face was not swollen. N.T. Suppression Hearing, 4/20/11, at 17. Based
on this record, and Appellant’s minimal argument, we are not convinced that
Appellant’s facial injuries were so disfiguring as to constitute a ‘special
element of unfairness,’ making the circumstances of Pekula’s out-of-court
identification unduly suggestive. Accordingly, the trial court did not abuse
its discretion by denying Appellant’s motion to suppress Pekula’s
identification.
In Appellant’s next issue, he purports to challenge the sufficiency of
the evidence to sustain his robbery conviction. Appellant does not specify to
which of his four robbery convictions he is referring, or what element(s) of
those offenses the Commonwealth failed to prove. Instead, Appellant simply
reiterates his assertions that because Christian Pekula’s and Patricia
Cassidy’s descriptions of the assailant did not match Appellant’s physical
appearance, and the circumstances surrounding their out-of-court
identifications were unduly suggestive, the trial court should have
suppressed those identifications. These claims are either waived, or were
sufficiently addressed, supra.
Finally, Appellant challenges the legality of the four mandatory
minimum sentences imposed pursuant to 42 Pa.C.S. § 9712, which requires
the court to impose a sentence of at least five years’ confinement “if the
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person visibly possessed a firearm …, that placed the victim in reasonable
fear of death or serious bodily injury, during the commission of the
offense….” In Commonwealth v. Valentine, 101 A.3d 801 (Pa. Super.
2014), we held that section 9712 is unconstitutional in its entirety, in light of
the United States Supreme Court’s decision in Alleyne v. United States,
133 S.Ct. 2151 (2013) (holding that any facts triggering application of a
mandatory minimum sentence must be presented to the fact-finder and
determined beyond a reasonable doubt), and this Court’s en banc holding in
Commonwealth v. Newman, 99 A.3d 86, 101-02 (Pa. Super. 2014) (en
banc) (holding that the mandatory sentencing scheme of 42 Pa.C.S. §
9712.1 is unconstitutional in light of Alleyne; declining to remand for a
sentencing jury to determine, beyond a reasonable doubt, whether the
Commonwealth had proven the factual predicates for section 9712.1, as “it
is manifestly the province of the general assembly to determine what new
procedures must be created in order to impose mandatory minimum
sentences in Pennsylvania following Alleyne”).
Because the mandatory minimum sentencing statute under which
Appellant’s sentences were imposed is unconstitutional in its entirety, those
sentences are illegal and must be vacated. Additionally, as our disposition
upsets the trial court’s overall sentencing scheme, we vacate Appellant
sentence in its entirety, and remand for resentencing. See
Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (“If our
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disposition upsets the overall sentencing scheme of the trial court, we must
remand so that the court can restructure its sentence plan.”).6
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
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6
On May 12, 2015, Appellant filed with this Court an “Application for
Enforcement of Order Pursuant to Pa.R.A.P. Rule 1701” (hereinafter
“Application”). In the Application, and in a “Supplemental Brief” filed by
Appellant on July 28, 2015, Appellant contends that “the prothonotary’s
office,” and the Philadelphia County District Attorney’s Office (D.A.), failed to
adhere to this Court’s orders, discussed supra, which directed that Appellant
be provided with the transcripts and documents necessary to his appeal.
Application, 5/12/15, at 1. Specifically, Appellant claims that he was not
provided with the Affidavit of Probable Cause, nor the record from his
unrelated civil case (which he claims the Commonwealth used during his
underlying criminal trial). Appellant asks that we grant various forms of
relief based on the prothonotary’s and the D.A.’s failure to adhere to our
order, including: (1) issuing another order to provide him with those
documents, (2) holding the prothonotary’s office and D.A. in “contempt of
this Court’s order[s,]” (3) imposing sanctions of “a monetary fine and
incarceration,” and (4) awarding Appellant “fees and costs.” Id. at 3-4.
Initially, our orders did not direct the prothonotary’s office or D.A. to
provide any documents to Appellant; rather, we directed the trial court to do
so. Moreover, even if Appellant is correct that the trial court failed to
provide him with certain documents, he does not explain how/why those
documents were necessary for him to present the issues addressed herein,
or how their omission hampered our assessment of his claims. Accordingly,
we deny Appellant’s Application, and conclude that the claims asserted in
his Supplemental Brief do not warrant relief.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/3/2016
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