Com. v. Dyer, L.

J. S35011/16

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
LORENZO DYER, : No. 1544 EDA 2015
:
Appellant :

Appeal from the Judgment of Sentence, April 17, 2015,
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-CR-0002639-2014

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

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 06, 2016

Lorenzo Dyer appeals from the judgment of sentence entered by the

Court of Common Pleas of Lehigh County on April 17, 2015, following his

conviction in a jury trial of robbery and criminal conspiracy to commit

robbery.1 The trial court sentenced appellant to a term of imprisonment of

10 to 20 years on each count to be served concurrently. We affirm.

The trial court set forth the following:

[O]n May 22, 2014, at approximately 11:45 P.M.,
twenty-five (25) year old Kenneth Hunt,
Jr.[Footnote 3] was crossing the Eighth Street Bridge
in Allentown, Lehigh County, Pennsylvania, on his
way to his residence located on the south side of
Allentown. When the victim reached about the
halfway mark across the bridge, he was approached
by four (4) younger black males. The four (4) men
formed a semi-circle around Mr. Hunt and effectively

1
18 Pa.C.S.A. § 3701(a)(1)(ii) and 18 Pa.C.S.A. § 903(a)(1), respectively.
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surrounded him.[Footnote 4] Mr. Hunt noted that
there was an actor, who stood approximately 5’6” to
5’7” in height who had his hair cut close to his head,
to his left who brandished a silver barreled handgun
and pointed it at his head. This male actor, later
identified as [appellant], stood approximately two
(2) feet from Mr. Hunt. In addition, the three (3)
other males stood to Mr. Hunt’s right-hand side.

[Footnote 3] Kenneth Hunt moved to the
Allentown area from the Poconos a
couple of years ago in search of different
employment. Mr. Hunt works as a
manager at Men’s [Wearhouse].

[Footnote 4] The tallest male was
approximately 6’1” to 6’2” and he put his
hands on the victim. This tall male was
not the actor who possessed the firearm.

One of the perpetrators demanded that
Mr. Hunt “give him all his things.” Mr. Hunt
complied. The actors took his HTC-One cellular
phone, headphones and his wallet containing such
items as his bank cards, identification, and his social
security card. One of the males then punched him in
the face, splitting his lip. When the victim’s head
turned, he saw sneakers with lime green eyelets on
them. The four (4) black males then left the scene,
heading north on Eighth Street. As they were
leaving, one of the males stated something along the
lines of, “Don’t snitch because we know where you
live.”

Immediately following this incident, Mr. Hunt
went to his friend’s house that was located close to
the scene. Upon his arrival at his friend’s residence,
Mr. Hunt’s friend called 911 to report the incident,
and also immediately began to track his cellular
phone through a GPS tracker on his Google
account.[Footnote 5]

[Footnote 5] The victim’s cellular
telephone was locked and could not be

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turned off. Consequently, it was able to
be tracked through a GPS tracker.

Officer Nicholas Lerch of the Allentown Police
Department received a call from the communication
center at approximately 11:45 P.M. with regard to an
armed robbery of a pedestrian on the Eighth Street
Bridge. The communication center indicated that
they were looking for a group of four (4) to five (5)
black males wearing dark clothing. One was
reported to have a handgun. Additionally,
Officer Lerch was informed that the victim’s cell
phone was being traced to the area of 13th and
Turner Streets, Allentown, Lehigh County,
Pennsylvania. Officer Lerch responded to said
location at about 12:00 midnight.

Officer Robert Carbaugh and Officer Andrew
Moll of the Allentown Police Department were the
first to arrive in the area of 13th and Turner Streets.
They noted four (4) black males who matched the
description provided by the communication center of
the perpetrators of the earlier armed robbery. The
males were huddled together with their heads down
behind a red pick-up truck parked in the parking lot
of the repair garage located at the corner of 13th and
Turner Streets.[Footnote 6] Upon viewing
Officer Moll exit his police cruiser and approach
them, the group of four (4) black males dispersed in
different directions. Officer Moll grabbed the closest
of the four (4) males (later identified as Daiquan
Tracy) and immediately checked him for weapons.
He then radioed the other officers to inform them of
the situation.

[Footnote 6] The vehicle was parked
facing northbound, not in an allotted
parking spot. The parking lot was very
full at the time that night.

In addition, both Officer Moll and
Officer Carbaugh identified [appellant] as
one of the four men that they observed
that evening.

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One of the black males, later identified as
[appellant], and who was wearing a black Champion
hoody, a pair of navy blue Adidas wind pants and
light grey Nike Air Max sneakers with reflective
fluorescent green on them, crossed Turner Street
and proceeded south on 13th Street.[Footnote 7]
Officer Lerch approached [appellant] cautiously at
the northeast corner of 13th and Turner Streets, as
[appellant] had his left hand in his hoody.
Officer Lerch instructed [appellant] to remove his
hands and informed him that he was being stopped
because he matched the description of a perpetrator
in an armed robbery that took place minutes earlier.
Officer Lerch patted [appellant] down for officer
safety and inquired if he was involved with the other
males across the street. [Appellant] stated that he
did not know the other men. While Officer Lerch was
speaking with [appellant], he received a radio
transmission from Officer Steven James that the
victim’s stolen cell phone was located in one (1) of
the [males’] pockets.[Footnote 8] Consequently,
[appellant] was placed in investigative detention.
Officer Lerch remained with [appellant].

[Footnote 7] The victim explicitly
remembered the reflective green
sneakers that night as being worn by one
of the actors on the Eighth Street Bridge.

[Footnote 8] In addition, Officer Moll
radioed that he had found a handgun and
the victim’s possessions.

Ultimately, all four (4) males were
apprehended within a half block of each other.
Specifically, Alomar Wee-Ellis was detained by
Officer Steven James; and Javard Lane was detained
by Officer Robert Carbaugh. Of note, the
apprehension of these individuals occurred
approximately fifteen (15) to twenty (20) minutes
after the robbery and was approximately 1.1 miles
from the initial crime scene on the Eighth Street
Bridge.

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Officer Moll searched the premises of the
garage repair lot in the area of where he observed
the four (4) suspects huddled together by the red
pick-up truck. In the bed of the red pick-up truck,
Officer Moll located, inter alia, the victim’s bank
cards, his identification card, and his social security
card. In addition, Officer Carbaugh located a silver
.380 handgun with five (5) rounds in it under the red
pick-up truck.

Meanwhile, Officer Yamil Castillo arrived at the
residence of the victim’s friend located in the
800 block of South Hall Street. At that time, the
victim provided Officer Castillo with a description of
the suspects. Soon thereafter, Officer Castillo
requested that the victim accompany him to a
location to potentially identify suspects that were
being detained by the Allentown Police. He
th
transported Mr. Hunt to the area of 13 and Turner
Streets, Allentown, Lehigh County, Pennsylvania.
While being transported to the area, Officer Castillo
informed Mr. Hunt that there were males being
detained by the Allentown Police Department who
were found with his cell phone[Footnote 9] and his
personal effects in their possession.

[Footnote 9] While the four (4) suspects
were being detained, Officer Castillo had
the victim call his cell phone and the
telephone that was in the possession of
these individuals began to ring.

At approximately 12:05 A.M., when the victim
arrived at the location where the police officers were
detaining the subjects, he was able to confidently
identify the black male who pointed a gun at him
about twenty (20) minutes earlier that evening. This
male was [appellant]. Mr. Hunt based his
identification on the [appellant’s] height and short
haircut. All four (4) men were separated from each
other, handcuffed, and in the presence of the police
at the time of the identification.

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At the time of trial, the victim was unable to
provide an in-court identification, due to the passage
of approximately ten (10) months.

Trial court opinion, 6/18/15 at 3-7 (trial exhibit citations omitted).

The record reflects that prior to trial, appellant filed an omnibus

pretrial motion seeking to suppress the victim’s on-scene identification as

unduly suggestive. A suppression hearing took place on October 14, 2014.

During the hearing, the victim testified as to the circumstances surrounding

his on-scene identification but was unable to positively identify the suspect

at the hearing due to the passage of time. (Notes of testimony, 10/14/14 at

12-13.) Subsequently, the trial court found that based on the totality of the

circumstances, the victim’s identification was reliable and, therefore, denied

the motion to suppress.

Appellant presents the following issue for our review:

Whether the lower court abused its discretion, erred
as a matter of law and violated [a]ppellant’s due
process rights under the constitutions of the United
States and the Commonwealth of Pennsylvania in
denying his motion to suppress the victim’s out-of-
court identification where the initial confrontation
was brief and at night, the identification was badly
flawed because, inter alia, the police told the victim
prior to the identification that they believed that the
individuals who had been detained were, in fact, the
individuals involved in the crime and he had to
identify him; and there was no independent basis to
ameliorate the tainted identification?

Appellant’s brief at 4.

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Our standard of review for challenges to the denial of a suppression

motion is as follows:

[We are] limited to determining whether the
suppression court’s factual findings are supported by
the record and whether the legal conclusions drawn
from those facts are correct. Because the
Commonwealth prevailed before the suppression
court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the
defense as remains uncontradicted when read in the
context of the record as a whole. Where the
suppression court’s factual findings are supported by
the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are
erroneous. Where . . . the appeal of the
determination of the suppression court turns on
allegations of legal error, the suppression court’s
legal conclusions are not binding on an appellate
court, whose duty it is to determine if the
suppression court properly applied the law to the
facts. Thus, the conclusions of law of the courts
below are subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-784 (Pa.Super. 2012),

appeal denied, 65 A.3d 413 (Pa. 2013) (citations 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’ [sic] to view the perpetrator at the time

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of the crime, the witness’ degree of attention, the
accuracy of his prior description of the perpetrator,
the level of certainty demonstrated at the
confrontation, and the time between the crime and
confrontation. The corrupting effect of the
suggestive identification, if any, must be weighed
against these factors. Absent some special element
of unfairness, a prompt “one on one” identification is
not so suggestive as to give rise to an irreparable
likelihood of misidentification.

Commonwealth v. Brown, 23 A.3d 544, 558 (Pa.Super. 2011) (en banc)

(internal citations and quotation marks omitted).

Here, appellant complains that the trial court erred in denying his

motion to suppress because, based on the totality of the circumstances, the

victim’s on-scene identification was unreliable for the following reasons:

(1) the identification was unduly suggestive because (a) the victim was

informed by police prior to the identification that they had detained the

individuals who were involved in the crime, and (b) the victim identified

appellant while appellant was under visible police detention; (2) the crime

was committed when it was dark; and (3) the victim was unable to identify

appellant in subsequent court proceedings.

Following a careful review of the record, and contrary to appellant’s

assertions, we find that the record supports the trial court’s factual findings

and the legal conclusions drawn from those facts. The trial court found:

[T]he on-the-scene identification increased the
reliability of the identification as a result of the short
duration between the commission of the alleged
crimes and the identification. According to the
evidence, the incident occurred at approximately

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11:45 P.M. The victim made the identification at
approximately 12:05 A.M. Consequently, clearly less
than a half hour had elapsed between the occurrence
of the event and the on-the-scene identification.
Additionally, the victim had sufficient time to view
[appellant’s] face that was not covered, as he stood
approximately two (2) feet from [appellant] while he
brandished a handgun on the Eighth Street Bridge.
The victim testified that the incident took
approximately five (5) to ten (10) minutes to unfold.
Furthermore, the victim was confident and certain
that [appellant] was the culprit who wielded the
handgun at his face. The record was void of any
special element of unfairness that would give rise to
an irreparable likelihood of misidentification by the
victim. To the contrary, the totality of the
circumstances surrounding the victim’s identification
led this Court to find that the identification was
completely reliable.

Trial court opinion, 6/18/15 at 13-14.

Indeed, the linchpin in assessing the admissibility of an identification is

reliability. McElrath v. Commonwealth, 592 A.2d 740, 743 (Pa.Super.

1991) (citations omitted). Here, the record reflects that the victim identified

appellant approximately 20 minutes after appellant stood 2 feet in front of

the victim for 5 to 10 minutes. Additionally, the victim testified that he was

“confident” that he had identified the correct person that held a gun to his

head. (Notes of testimony, 10/14/14 at 12.) Despite appellant’s claim, the

reliability of the victim’s identification is not outweighed by undue suggestion

based on police remarks made to the victim about the appellant prior to the

identification and when the victim identified appellant while appellant was

under visible police detention. See Commonwealth v. Moye, 836 A.2d

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973, 977-978 (Pa.Super. 2003), appeal denied, 851 A.2d 142 (Pa. 2004)

(holding that the reliability of the victim’s identification of defendant made

after the victim observed defendant and unhesitatingly identified him in very

close temporal proximity to the commission of the crime was not outweighed

by police remarks made to the victim about defendant prior to the

identification and when the victim identified defendant while defendant sat in

a police van). Consequently, no special element of unfairness exists so as to

give rise to an irreparable likelihood of misidentification.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/6/2016

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