Antoine D. Pittman, etc. v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: June 24, 1997
• Docket: 1666961
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Willis and Senior Judge Hodges Argued at Norfolk, Virginia

ANTOINE D. PITTMAN, S/K/A ANTOINE DAUNTE PITTMAN MEMORANDUM OPINION * v. Record No. 1666-96-1 BY JUDGE WILLIAM H. HODGES JUNE 24, 1997 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Norman Olitsky, Judge Brenda C. Spry, Deputy Public Defender, for appellant.

Daniel J. Munroe, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Antoine D. Pittman (appellant) was convicted by a jury of

robbery and using a firearm in the commission of robbery.

Appellant contends that the evidence was insufficient to sustain

his convictions. For the reasons that follow, we affirm.

In determining the sufficiency of the evidence to support a

conviction where a witness' identification is challenged, we look

to the reliability factors enunciated in Neil v. Biggers, 409 U.S. 188 (1972), as significant circumstances that may be

considered, along with other evidence. See Smallwood v.

Commonwealth, 14 Va. App. 527, 530, 418 S.E.2d 567, 568 (1992)

(applying the Biggers analysis even though the accused did not

* Pursuant to Code § 17-116.010 this opinion is not designated for publication. appeal trial court's denial of his motion to suppress the

identifications). These factors include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.

Biggers, 409 U.S. at 199-200.

"On appeal, we review the evidence in the light most

favorable to the Commonwealth, granting to it all reasonable

inferences fairly deducible therefrom." Martin v. Commonwealth,

4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). So viewed, the

evidence proved that around 2:20 p.m. on October 23, 1995, Ladrew

Dennis was robbed at gunpoint after he returned to his delivery

truck. Dennis testified that he clearly saw the robber, who was

less than a foot away from him. Twenty to thirty minutes after

the robbery, Detective David Dempsey showed Dennis loose

photographs and a book containing mugshots. At the time, Dennis

was "nervous" and "excited," and, although some of the photos

"were close," he did not identify anyone because he was "[n]ot

absolutely" "100 percent sure at that time." Dennis described

the robber as having short hair, however, he could not say

whether the robber's hair was braided. He initially described

the robber as weighing between 150 and 170 pounds. On November

1, 1995, nine days after the robbery, Dennis viewed a six-man

photo array containing appellant's photograph from the mugshot

2 book, and he positively identified appellant as the robber. The

other five photos in the array had not previously been viewed by

Dennis. Dennis unequivocally identified appellant at trial as

the man who robbed him.

Detective Dempsey testified that Dennis described the robber

"as a black male, approximately 18 years of age, 5'10" to 6 foot,

150 pounds, brown eyes, black hair, and the hair was short and

curly." According to Dempsey, appellant was "about 5'9", [and he

weighed] something like, 200 pounds" on November 1, 1995, the day

of his arrest. Dempsey also stated that at the time of arrest,

appellant's hair was not the same as it was in court. Dempsey

testified that, on November 1, 1995, appellant had "corn-row type

hair." Dempsey elaborated, "I wouldn't call it braided. No. I

wouldn't call it braided. Well, braided close to the head

maybe." The Commonwealth's evidence showed that Dennis had an

adequate opportunity to view the robber at close range, that he

paid a great deal of attention to the robber and that he

unequivocally identified appellant's photograph in a photo array

nine days after the crime. Moreover, Dennis positively

identified appellant in court as the robber. The fact that

Dennis failed to identify appellant's photo just after the

robbery or that he erred in estimating appellant's weight went to

the weight of the evidence and were for the fact finder to

resolve. Moreover, the description of the robber's hair style at

3 the time of the crime was not so incongruous with Dempsey's

description as to render it unreliable or incredible. The fact

finder is capable of "measuring intelligently the weight of

identification testimony that has some questionable feature

. . . . The defect, if there be one, goes to weight and not to

substance." Manson v. Brathwaite, 432 U.S. 98, 116-17 (1977).

The fact finder believed the Commonwealth's evidence and

rejected the alibi evidence presented by appellant. "It is

fundamental that 'the credibility of witnesses and the weight

accorded their testimony are matters solely for the fact finder

who has the opportunity of seeing and hearing the witnesses.'" Collins v. Commonwealth, 13 Va. App. 177, 179, 409 S.E.2d 175,

176 (1991) (quoting Schneider v. Commonwealth, 230 Va. 379, 382,

337 S.E.2d 735, 736-37 (1985)). The Commonwealth's evidence was

competent, was reliable, was not inherently incredible, and was

sufficient to prove beyond a reasonable doubt that appellant was

guilty of robbery and use of a firearm. Accordingly, appellant's

convictions are affirmed. Affirmed.