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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JUNIOR BRIGNOL :
:
Appellant : No. 3854 EDA 2016
Appeal from the Judgment of Sentence October 12, 2012
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-00011815-2009
BEFORE: PANELLA, J., MURRAY, J., and STEVENS, P.J.E.
MEMORANDUM BY PANELLA, J. FILED SEPTEMBER 11, 2018
Junior Brignol challenges the judgment of sentence entered in the
Philadelphia County Court of Common Pleas. We affirm Appellant’s conviction
for criminal conspiracy, 18 Pa.C.S.A. § 903(a)(1). But we must vacate his
judgment of sentence and remand for resentencing based on Alleyne v.
United States, 570 U.S. 99 (2013), and Commonwealth v. Valentine, 101
A.3d 801 (Pa. Super. 2014).
The relevant facts and procedural history of this case are as follows.
Dawud Keitt was waiting for a friend outside of a convenience store in
Philadelphia. Mr. Keitt noticed a car stopped at a red light for 15-20 seconds.
There were five men in the car. One passenger pointed at Mr. Keitt, who began
walking down the street in the opposite direction. The car made a U-turn and
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Former Justice specially assigned to the Superior Court.
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stopped, and its occupants alighted and followed Mr. Keitt. He glanced over
his shoulder as he heard one of the men shout, “Shoot him. Get him!” He
began running as he saw Appellant raise a gun in his direction. Mr. Keitt was
shot once in the leg. He spotted Appellant fleeing after firing the gun.
Police responded to the scene, and called for medical assistance. Mr.
Keitt provided a description of the car and its occupants. Moments later, police
stopped the car and arrested two men still inside. Police later apprehended
Appellant and another suspect. The officers brought the men to the hospital
where Mr. Keitt was being treated, and he identified Appellant as the shooter.
Appellant filed a motion to suppress Mr. Keitt’s identification, which the
court denied. After a mistrial due to juror illness, a second jury convicted
Appellant of criminal conspiracy, and acquitted him of attempted murder and
related charges. The court sentenced him to a mandatory minimum of 5-10
years’ incarceration. Appellant’s direct appeal rights were later reinstated nunc
pro tunc, and this timely appeal followed.
Appellant claims the police told Mr. Keitt they arrested everyone from
the vehicle. Appellant posits this statement compelled Mr. Keitt to identify one
of the men brought to his hospital room as the shooter. Appellant argues the
court erred by denying his suppression motion, as the identification
procedures were unfairly tainted. We disagree.
Our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is whether the factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. When reviewing the ruling of a
suppression court, we must consider only the evidence of the
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prosecution and so much of the evidence of the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the record supports the findings of the
suppression court, we are bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error.
Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted).
“It is within the suppression court’s sole province as factfinder to pass
on the credibility of witnesses and the weight to be given to their testimony.
The suppression court is free to believe all, some or none of the evidence
presented at the suppression hearing.” Commonwealth v. Elmobdy, 823
A.2d 180, 183 (Pa. Super. 2003) (citation omitted).
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
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) (citations
and most internal quotation marks omitted; emphasis added). “Moreover, an
in-court identification may be admissible despite the inadmissibility of a pre-
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trial identification where the in-court identification is not tainted by the prior
identification.” Commonwealth v. Wade, 33 A.3d 108, 114 (Pa. Super.
2011) (citation omitted).
We find Wade instructive here. In that case, the victim saw Wade sitting
in the driver’s seat of the victim’s car. Though it was nighttime, the victim
could clearly see Wade’s face due to nearby street and house lights. The victim
ordered Wade to get out of his car, and Wade threatened to shoot him in
response. Wade then sped off in the car, leading police on a chase before
ultimately crashing the vehicle. After the crash, police told the victim they had
apprehended the man who stole his vehicle, and asked him to come to the
hospital to identify him. The victim identified Wade at the hospital, and again
during Wade’s trial.
Wade challenged the out-of-court and in-court identifications. The trial
court denied his suppression motion. On appeal, the panel held that, even
assuming the out-of-court identification was improper because police told the
victim they had apprehended the man who stole his car, the in-court
identification was sufficiently independent. See id., at 114-115. The Wade
panel noted the victim observed Wade from a close, well-lit distance; the
victim testified he paid particular attention to Wade because Wade threatened
him; and the victim’s description of Wade was accurate. See id., at 114.
Here, Mr. Keitt testified at the suppression hearing. He identified
Appellant as the man who shot him. See N.T. Suppression, 10/25/11, at 27.
Mr. Keitt stated that on the day he was shot, he was walking down the street
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at around 1:45 p.m. and noticed a car of men driving slowly next to him. See
id., at 28. The car stopped, and he had an unobstructed view of the men in
the vehicle, including Appellant. See id., at 31. He saw one man in the vehicle
point to him; he identified the man pointing at him as Appellant’s nephew.
See id. Mr. Keitt began quickly walking away, just as he saw three of the men
exit the vehicle and heard one shout, “Get him, shoot him, shoot him.” Id.,
at 30.
He looked back, and saw Appellant, gun in hand, chasing him. See N.T.
Suppression, 10/25/11, at 30. Appellant followed him down two blocks, while
Mr. Keitt periodically looked over his shoulder at his pursuer. See id., at 31.
Appellant fired a shot at him, which missed, and then a second shot, which hit
Mr. Keitt in the back of the leg. See id. Before collapsing, he saw Appellant
running away. See id., at 31.
While Mr. Keitt was being treated in the hospital for his gunshot wound,
an officer told him the police apprehended “everybody that was … in the car.”
Id., at 36. Officers escorted four handcuffed men into his hospital room for
identification. See id., at 33. He identified one of the men as an accomplice,
and identified Appellant as the shooter. See id., at 34.
The suppression court acknowledged the officer’s statement about
apprehending “everybody” could be suggestive. Nevertheless, the court
observed that Mr. Keitt credibly testified “with an extreme degree of certainty
as to who his assailant was, and his level of certainty was not shaken on cross-
examination.” N.T. Suppression, 10/25/11, at 48. And, we note that despite
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the police informing Mr. Keitt they apprehended “everybody,” Mr. Keitt only
positively identified two of the men shown to him as involved in the shooting.
See id., at 34-35. Based on the factors enumerated in Moye and Wade, we
find the court did not err by denying Appellant’s suppression motion. See
Moye, 836 A.2d at 976; Wade, 33 A.3d at 114.
Turning to Appellant’s second issue, he challenges the imposition of his
mandatory minimum sentence as unconstitutional under Alleyne.
In Alleyne, the United States Supreme Court held any facts that lead
to an increase in a mandatory minimum sentence are considered elements of
the crime, which must be presented to a jury and proven beyond a reasonable
doubt. See 570 U.S. at 103. Where “application of a mandatory minimum
sentence gives rise to illegal sentence concerns, even where the sentence is
within the statutory limits, such legality of sentence questions are not
waivable.” Valentine, 101 A.3d at 809 (citation and brackets omitted).
Further, “[t]he United States Supreme Court has held that when a decision of
this Court results in a new rule, that rule applies to all criminal cases still
pending on direct review.” Commonwealth v. Newman, 99 A.3d 86, 90 (Pa.
Super. 2014) (citations omitted).
Appellant was sentenced under 42 Pa.C.S.A. § 9712(a). As both parties
and the trial court recognize, this specific statute, which required a five-year
mandatory minimum for offenders who visibly possessed a firearm during the
commission of a crime of violence, was held unconstitutional by a panel of this
Court in Valentine, 101 A.3d at 812. This rendered Appellant’s sentence
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illegal. Consequently, we are constrained to vacate Appellant’s judgment of
sentence, and remand for resentencing without application of the mandatory
minimum.
Conviction affirmed. Judgment of sentence vacated. Case remanded for
resentencing. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/18
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