J-S49001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DUSTIN RAYMOND ANDREJCO- : JONES, : : No. 81 WDA 2016 Appellant
Appeal from the Judgment of Sentence July 29, 2015 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0003120-2014, CP-02-CR-0003124-2014
BEFORE: DUBOW, J., SOLANO, J., and FITZGERALD J.*
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 06, 2017
Appellant, Dustin Raymond Andrejco-Jones, appeals from the July 29,
2015 Judgment of Sentence entered in the Allegheny County Court of
Common Pleas after a jury convicted him of charges stemming from three
separate robberies committed over a nine-hour period. Appellant challenges
the trial court’s denial of his Motion to Sever, the denial of his Motion to
Suppress all three victims’ pre-trial identifications, and the weight of the
evidence identifying him as the culprit in two of the robberies. After careful
review, we affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S49001-17
The relevant factual and procedural history, as gleaned from the
certified record, is as follows.
Between the hours of 6:30 pm on January 8, 2014, and 3:15 am on
January 9, 2014, Appellant followed three patrons of the Rivers Casino
(“Casino”) as they were leaving the Casino property. He robbed the three
patrons in the parking garage of the Casino or after following them home
from the Casino. Surveillance footage from the Casino captured Appellant’s
and his victims’ movements.
Appellant accosted his first victim, Ronald Eritano (“Eritano”), at 6:33
pm on the fourth floor of the Casino’s parking garage. Appellant physically
attacked Eritano and threatened to shoot him. Although Eritano did not see
a gun, he did see a steel bar in Appellant’s hand. Appellant fled without
taking any money when Eritano’s wife began screaming for help. Security
cameras did not capture the actual robbery, but video surveillance tapes
show Appellant exiting his vehicle with the motor still running, walking
towards Eritano, and running back to his vehicle less than a minute later and
fleeing the Casino property at 6:34 pm. Eritano identified Appellant at his
preliminary hearing, and again at trial. N.T., 4/29/15-5/7/15, at 32, 176.1
Not long after Appellant robbed Eritano and fled the Casino, security
cameras captured Appellant returning in the same vehicle, later determined ____________________________________________
1 The transcripts of Appellant’s Suppression Hearing and Jury Trial are contained in a single document that spans multiple days of testimony.
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to be registered to his father, at 8:25 pm.2 At 1:00 am, security cameras
captured a second victim, Thomas Gnipp (“Gnipp”), leaving the same
parking garage. Appellant, in his vehicle, followed directly behind Gnipp as
he left the Casino and drove towards his home. On his way home, Gnipp
noticed that he was being followed. Approximately twenty minutes later, as
Gnipp pulled into his garage, Appellant approached Gnipp and said “Give me
all of your money. I have gun.” N.T. at 263-64. Gnipp gave Appellant
approximately $35.00. When Appellant demanded more money, Gnipp
sounded the horn of his car, causing Appellant to flee in his car. Like
Eritano, Gnipp identified Appellant at his preliminary hearing, and again at
trial. N.T. at 92-93, 265-66.
After fleeing Gnipp’s home, Appellant again returned to the Casino in
the same vehicle at 1:38 am. Appellant gambled for approximately twenty
minutes before returning to his vehicle and spending nearly an hour waiting
in his vehicle in the Casino’s parking garage. At 2:35 am Appellant followed
his third victim, Kaa Fat Liang (“Liang”), as he left the Casino parking
garage. Liang had approximately $2,600.00 in hundred-dollar bills in his
pocket when he left the Casino. N.T. at 568.
2 Appellant used the same car, a light blue 1999 Ford Crown Victoria sedan, to follow each of his victims and subsequently flee the scene of all three robberies. The license plate number of the vehicle is visible in the surveillance footage of Appellant following his victims in the Casino parking garage. N.T. at 294.
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Liang observed Appellant following him from the Casino all the way to
Liang’s daughter’s house. As Liang exited his vehicle and approached the
front door, Appellant approached him and demanded money. When Liang
denied having any money, Appellant struck Liang in the face and head with a
steel bar. Appellant then took the cash from Liang’s pocket and fled the
scene in his car.
Liang identified Appellant in a photo array and at the preliminary
hearing. N.T. at 58, 61, 333. In addition, the steel bar with Liang’s blood
on it was recovered during a search of Appellant’s vehicle.3
After attacking Liang, Appellant again returned to the Casino, pulling
into the Casino parking garage at 3:12 am. Throughout the rest of the
morning, Appellant gambled in the Casino using the money he took from
Liang. Security cameras captured him trading in cash, including twenty-five
one hundred-dollar bills, in exchange for $2,665.00 in Casino chips that
morning. N.T. 482.
Investigators arrested Appellant the following evening, January 10,
2014, when he returned to the Casino.
The Commonwealth charged Appellant with three counts of Robbery,
one count of Burglary, and one count of Aggravated Assault. 4 Appellant filed ____________________________________________
3 Inside the vehicle, Detectives also recovered a money wrapper used by the Casino to bundle $2,000.00 in currency, as well as clothing consistent with the clothing worn by Appellant as seen on surveillance footage and as described by the victims.
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an Omnibus Pretrial Motion seeking, inter alia, to sever the charges for the
three victims and to suppress the three pre-trial identifications: Gnipp and
Eritano’s identifications of Appellant at the preliminary hearing and Liang’s
identification of Appellant in a photo array. The trial court denied all
relevant portions of the Motion,5 and Appellant elected to proceed by way of
a jury trial.
On May 7, 2015, the jury found Appellant guilty of all charges. On
July 29, 2015, the trial court sentenced Appellant to an aggregate term of
ten and one-half to twenty-four years of incarceration, with three years of
consecutive probation. Appellant filed a Post-Sentence Motion, which the
trial court denied on November 18, 2015.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
On appeal, Appellant raises four allegations of error, reordered for our
ease of disposition.
1. Did the trial court err in denying [Appellant’s] Pre-Trial Motion to Sever when the charges stemmed from separate events, and involved different victims and were three distinct criminal episodes?
_______________________ (Footnote Continued) 4 18 Pa.C.S. §§ 3701, 3502, and 2702, respectively. 5 Not relevant to the instant appeal, the trial court suppressed evidence seized during the course of a second search of Appellant’s vehicle.
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2. Did the trial court err in denying [Appellant’s] Pre-Trial Motion to Suppress multiple untrustworthy out-of-court identifications by all three victims?
3. Was the verdict against the weight of the evidence for the Robbery of Ronald Eritano since the testimony regarding identification was inconsistent and the eventual identification [was] overly suggestive to the extent of fatally diminishing its credibility?
4. Was the verdict against the weight of the evidence for the Robbery of Thomas Gnipp since the testimony regarding identification was inconsistent and the eventual identification [was] overly suggestive to the extent of fatally diminishing its credibility?
Appellant’s Brief at 6.
Motion to Sever
In his first claim, Appellant avers that the trial court erred in denying
his Motion to Sever the offenses because the charges against Appellant
“were different crimes, involved separate incidents with separate victims and
should have been tried separately.” Appellant’s Brief at 16.
Our standard of review from the denial of a Motion to Sever is well-
settled:
A motion for severance is addressed to the sound discretion of the trial court, and . . . its decision will not be disturbed absent a manifest abuse of discretion. The critical consideration is whether the appellant was prejudiced by the trial court's decision not to sever. The appellant bears the burden of establishing such prejudice.
Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010).
In Pennsylvania, the joinder of informations is rule-based:
(A) Standards
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(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.
Pa.R.Crim.P. 582(A)(1). Additionally, “[t]he court may order separate trials
of offenses or defendants, or provide other appropriate relief, if it appears
that any party may be prejudiced by offenses or defendants being tried
together.” Pa.R.Crim.P. 583.
In Commonwealth v. Grillo, this Court adopted three factors to
consider in determining whether multiple offenses constitute a single “act or
transaction” under Pa.R.Crim.P. 582(A)(1)(b): “1. the temporal sequence of
events; 2. the logical relationship between the acts; and 3. whether they
share common issues of law and fact.” 917 A.2d 343, 345 (Pa. Super.
2007).
In the instant case, the trial court found that “[t]he three robberies
constituted one event, beginning and ending in the same location, with the
common goal, to obtain funds to gamble.” Trial Court Opinion, filed
10/28/16, at 10. Appellant disputes the trial court’s finding, but fails to
address any of the relevant factors adopted in Grillo. Appellant’s Brief at
17-18. Instead, Appellant avers that the three robberies should not be
considered part of a single criminal episode because they occurred in three
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different locations and “[o]nly one case was primarily violent in nature[.]”
Id. at 18.
Using the relevant factors discussed in Grillo, we discern no “manifest
abuse of discretion” in the trial court’s determination that the offenses
charged were part of a single transaction. First, the “temporal sequence of
events” was an uninterrupted spree, over the course of a single evening, in
which Appellant was either committing a robbery, traveling to and from the
robberies, gambling with his ill-gotten gains, or stalking his next victim.
Second, there is a clear “logical relationship” between the three robberies:
Appellant continued to target patrons of the Casino until he obtained enough
funds to continue gambling. Once he did, his spree of robberies came to an
end. Finally, the three robberies “share common issues of . . . fact[,]”
namely, whether Appellant was the man seen following his victims through
the Casino garage in his vehicle before approaching them in a hooded
sweatshirt and demanding money from them.
Appellant’s selective emphasis on the location of the final moments of
each crime ignores the broader context of his conduct that night. Appellant,
hidden inside his father’s car, used the Casino parking garage as the hunting
grounds in which he targeted his victims and began stalking his prey.
Although Appellant ultimately followed two of his victims off the Casino
grounds, the evidence shows a continuous course of conduct targeted
towards a single aim: to obtain funds with which to gamble.
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Finally, the trial court “reviewed the similarities of the three crimes
and concluded that Appellant would not be prejudiced by the consolidation.”
Trial Court Opinion at 10. Appellant also disputes this finding, averring that
the Commonwealth was improperly permitted to “buttress the stronger
identification, and the DNA evidence, [from the Liang Robbery] against the
two substantially weaker identification[s.]” Appellant’s Brief at 21.
Appellant’s argument is premised on his assertion that “allowing the
joinder of other unrelated robberies caused [Appellant] to be unduly
prejudiced.” Id. The robberies were closely related, however. Moreover,
although Appellant contests the relative strength of the three identifications,
addressed infra, all three victims separately identified Appellant as the man
who robbed them after leaving the Casino. Circumstantial evidence,
including surveillance footage of Appellant’s father’s car following his victims
shortly before they were robbed, linked Appellant to all three crimes.
Although Pa.R.Crim.P. 583 provides that a trial court “may” order separate
trials for related offenses, we discern no manifest abuse of discretion in the
trial court’s decision not to do so in the instant case.
Motion to Suppress Identifications
In his second issue, Appellant avers that the trial court erred in
denying his Motion to Suppress three pieces of evidence identifying
Appellant as the perpetrator of the instant offenses: Liang’s identification of
Appellant from a photo array, Eritano’s identification of Appellant at the
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preliminary hearing, and Gnipp’s identification of Appellant at the
preliminary hearing. Appellant’s Brief at 22-29.
Our well-settled standard of review in an appeal from an order denying
a Motion to Suppress is as follows:
Our standard of review in addressing a challenge to the denial of a suppression motion is 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.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (citation
omitted).
Further, although additional evidence was adduced at trial or in the
preliminary hearing and cited by the parties in their Briefs, our scope of
review is limited to the evidence adduced at the hearing on the Motion to
Suppress. As our Supreme Court recently clarified:
It is axiomatic that the nature of the record below controls the appellate court's scope of review. See In re: One Hundred or More Qualified Electors, [] 683 A.2d 283, 287 ([Pa.] 1996). For example, when determining whether the evidence is sufficient to support a conviction, we look to the evidence admitted at trial. See e.g. Commonwealth v. Briggs, [] 12 A.3d 291, 306 ([Pa.] 2011). We do not look to evidence “of record” at other stages of the proceedings, such as sentencing. Similarly, in [reviewing a suppression ruling], it is inappropriate to consider trial evidence as a matter of course, because it is simply not part of the suppression record, absent a finding that such evidence was unavailable during the suppression hearing.
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In re L.J., 79 A.3d 1073, 1085 (Pa. 2013).
At a hearing on a Motion to Suppress, the Commonwealth has the
burden of proving that the identification evidence “was legally obtained.”
Commonwealth v. Enimpah, 62 A.3d 1028, 1031 (Pa. Super. 2013).
When analyzing the admission of identification evidence, a suppression court must determine whether the challenged identification has sufficient indicia of reliability. This question is examined by focusing on the totality of the circumstances surrounding the identification. 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.
Commonwealth v. Sanders, 42 A.3d 325, 330 (Pa. Super. 2012) (internal
quotation marks and citations omitted).
Where, as here, a defendant avers that a pretrial identification violates
his right to due process, our inquiry is focused on the likelihood of
misidentification. See Commonwealth v. Ransome, 402 A.2d 1379, 1382
(Pa. 1979) (noting that “it is the likelihood of misidentification which violates
a defendant’s right to due process, and it is this which is the basis of the
exclusion of evidence.”). “[S]uggestiveness in the identification process is a
factor to be considered in determining the admissibility of such evidence, but
suggestiveness alone does not warrant exclusion.” Commonwealth v.
Bruce, 717 A.2d 1033, 1037 (Pa. Super. 1998) (citation and quotation
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In the instant case, the Commonwealth presented three witnesses at
the hearing on the Motion to Suppress: Trooper Mario Schiavo, Detective
Donald Pasquarelli, and Detective Frederick Wright. Neither the
Commonwealth nor Appellant submitted the transcript from the preliminary
hearing into evidence, although the parties elicited testimony from the
officers regarding the circumstances of the identifications at issue. We
address each identification in turn, viewing only the evidence adduced at the
hearing on the Motion to Suppress and in the light most favorable to the
Commonwealth.
Liang’s Photo Array Identification
In his Brief to this Court, Appellant avers that the trial court should
have suppressed Liang’s identification of Appellant in a pretrial photo array
because (i) Liang was shown two arrays with Appellant’s photo and could not
identify Appellant in the first; (ii) Liang did not have an adequate
opportunity to observe Appellant’s face; and (iii) Liang’s identification of
Appellant in the second array was “unclear.” Appellant’s Brief at 23.
Although Liang was shown two photo arrays, each of which contained
a photo of Appellant, and was only able to make an identification from the
second array, the previous failure to identify a defendant positively in a
photo array goes to the weight, not the admissibility, of a subsequent
identification. Commonwealth v. McIntosh, 476 A.2d 1316, 1320 (Pa.
Super. 1984). Moreover, the Commonwealth introduced evidence explaining
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that Liang’s initial failure to identify Appellant was because the night after
the Robbery, Detective Pasquarelli initially showed Liang a photo array
containing an outdated photograph of Appellant. N.T. at 58. Detective
Pasquarelli then prepared a second array with a more recent photograph of
Appellant, and returned to Liang’s home an hour later with the second array.
Id. at 76. Liang identified Appellant from the second array. Id. at 61.
As to Appellant’s remaining claims, no evidence was adduced at the
suppression hearing to support Appellant’s assertions that it was too dark for
Liang to see Appellant’s face, or that Liang was preoccupied looking for a key
when Appellant approached to rob him. See Appellant’s Brief at 23
(supporting his argument with references to trial testimony, which is outside
the proper scope of review). Although Liang acknowledged that it was
difficult for him to see after Appellant struck him in the face with the steel
bar, he explained that he was nonetheless able to recognize Appellant
because both men frequented the Casino. Id. at 190.
Nor is there any evidence to support Appellant’s vague assertions that
Liang’s identification “was unclear” or somehow tainted by Liang’s use of a
translator.6 To the contrary, Detective Pasquarelli testified that when shown
the second photo array, Liang identified Appellant as the man who robbed ____________________________________________
6 Liang, whose native language is Chinese, used his son-in-law as a translator when he spoke with investigators and utilized a court-appointed translator when testifying in the instant case. N.T. at 57.
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him. Id. at 61. He placed his initials above Appellant’s photo in the array,
and signed his name in Chinese characters directly below Appellant’s photo.
Id.
Under the totality of the circumstances, we conclude that the
suppression court did not err or abuse its discretion in finding that the photo
arrays shown to Liang were not unduly suggestive. 7 Trial Court Opinion at
11.
Eritano’s Preliminary Hearing Identification
As to Eritano’s testimony, Appellant avers that his identification of
Appellant at the preliminary hearing was suggestive, and that the
Commonwealth failed to demonstrate that the identification was reliable.
Appellant’s Brief at 22, 25-29.
At the preliminary hearing, Appellant caused a disruption and drew
attention to himself. N.T. at 107. He was the only person near the bar of
the court who was not a lawyer or a detective, and he was readily
identifiable as a defendant, wearing a red jumpsuit that identified him as an
inmate, handcuffed and in shackles. Id. at 111. We agree with Appellant ____________________________________________
7 In his Brief to this Court, Appellant argues, for the first time, that the trial court should have suppressed Liang’s identification of Appellant at the preliminary hearing. Appellant did not include the preliminary hearing identification in his Motion to Suppress and this claim is, therefore, waived. See Appellant’s Omnibus Pretrial Motion, filed 3/9/15, at 6-7; Commonwealth v. Sanchez, 82 A.3d 943, 978 (Pa. 2013) (“It is a bedrock appellate principle that issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”).
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that the circumstances of the preliminary hearing were undoubtedly
suggestive. Nevertheless, “suggestiveness alone does not warrant
exclusion.” Bruce, supra at 1037.
In addressing the surrounding indicia of reliability, Appellant’s
argument, in turn, mischaracterizes the testimony adduced at the
preliminary hearing and presents it in the light least favorable to the
However, the evidence from the suppression hearing, viewed in the
light most favorable to the Commonwealth, indicates that Eritano told
investigators that he was able to observe Appellant’s face during the
Robbery. See N.T. at 25. Shortly after the attack, he described Appellant
to investigators as a “light-skinned black male” who stood about five feet six
inches or five feet seven inches tall.8 Id. at 27-28. This description, given
before Eritano saw Appellant at the preliminary hearing, closely matches the
characteristics of Appellant, who concedes that he is “light skinned [and]
5’6” tall[.]” Appellant’s Brief at 28.
Based on this evidence, we discern no abuse of discretion in the trial
court’s determination that Eritano’s identification of Appellant was
admissible. We agree with the trial court that the suggestive nature of the
8 Although Appellant avers that Eritano described Appellant as “dark skinned,” Appellant’s Brief at 25, Trooper Schiavo repeatedly testified that Eritano described his attacker as “light.” N.T. at 25, 27, 28, 29.
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preliminary hearing identification goes to “the weight to be given to that
identification as opposed to its admissibility.” Trial Court Opinion at 10.
Gnipp’s Preliminary Hearing Identification
Finally, Appellant avers that the trial court erred in denying his Motion
to Suppress Gnipp’s identification of Appellant at the preliminary hearing. As
discussed supra, we agree with Appellant that the confrontation between
Appellant and his victims at the preliminary hearing was suggestive.
Moreover, as to Gnipp, the suppression hearing record is wholly devoid of
any indicia of reliability supporting the identification.9 We, thus, agree that
the suppression court erred in failing to suppress Gnipp’s pretrial
identification. However, we conclude that the error was harmless.
“[A]n erroneous ruling by a trial court on an evidentiary issue does not
require us to grant relief where the error was harmless.” Commonwealth
v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (citation omitted). Harmless error
may be found in one of three circumstances:
(1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was ____________________________________________
9 What little evidence was adduced at the suppression hearing regarding Gnipp shows that Gnipp initially told investigators that it was “dim” in the garage when the assailant approached him from behind to demand money, and he did not see his assailant’s face. N.T. at 106, 110. Significantly, Gnipp failed to identify Appellant prior to the suggestive confrontation at the preliminary hearing. Id. at 108.
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so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Id. Specific to suggestive identification evidence, this Court has found that
an improperly admitted identification is harmless error where there is
additional evidence corroborating the identification, and the identifying
witness was cross-examined on the suggestive nature of the identification.
See McIntosh, supra at 1320-21.
Although the jury in the instant case heard evidence of Gnipp’s
identification of Appellant that occurred at the preliminary hearing, which
evidence should have been suppressed, the jury also witnessed Gnipp’s in-
court identification of Appellant.10 Appellant did not object to Gnipp’s in-
court identification at trial and did not try to preclude the testimony through
a Motion in Limine.11 Thus, the inadmissible identification was “merely
cumulative” of Gnipp’s in-court identification.
Moreover, Appellant, like the defendant in McIntosh, supra,
minimized any prejudice by extensively cross-examining Gnipp on the ____________________________________________
10 At trial, Gnipp testified that there was a light on in the garage and that he got a “good look” at Appellant’s face. N.T. at 263-64. He denied ever telling investigators that he had not seen his assailant’s face. Id. at 270. 11 Had Appellant prevailed on his Motion to Suppress the pretrial identification, this would not have automatically precluded a subsequent in- court identification. A separate test governs the admissibility of an in-court identification following the suppression of an impermissibly suggestive pretrial confrontation. See, e.g., Commonwealth v. Townsend, 421 A.2d 452, 454 (Pa. Super. 1980).
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suggestive nature of the pretrial identification. See N.T. at 270-80.
Appellant pointed out to the jury that (i) the initial police report states that
Gnipp did not see Appellant’s face, id. at 270-72; (ii) the robbery occurred
quickly and Appellant approached Gnipp from behind, id. at 272-75; (iii)
Gnipp told investigators that the garage where the robbery occurred was
dimly lit, id. at 277; and (iv) Gnipp failed to identify Appellant prior to the
suggestive confrontation at the preliminary hearing, id. at 276, 278-80.
Finally, overwhelming circumstantial evidence of Appellant’s guilt
rendered any prejudice insignificant. Surveillance footage from the Casino
showed Appellant, in his father’s light-blue four-door Crown Victoria Sedan,
spot Gnipp as he exited the Casino lobby and walked to his vehicle. 12 Id.
Footage depicts Appellant circling back past Gnipp, pulling into a spot
between Gnipp and the Casino garage’s exit, and then waiting there for two
minutes until Gnipp drives past. Id. at 297, 301, 303. As soon as Gnipp
drives past, Appellant pulls out and follows him out of the Casino garage.
Id. at 301. Cameras then capture him following Gnipp through the Casino
property towards the highway. Id. at 304. Gnipp and Appellant left the
Casino property at 1:01 am. Id. at 305.
12 Investigators identified Appellant as the driver based on images of the vehicle’s plates, footage of his face, and the fact that Appellant used his Casino loyalty rewards card and government identification to make purchases inside the Casino. Id. at 287.
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En route home, on the highway, Gnipp noticed a vehicle following him
during the fifteen-minute drive to his residence. Id. at 260. Gnipp arrived
home and pulled around to the garage at the back of his residence, where
Appellant robbed him. Id. at 262. During the robbery, Gnipp sounded his
car horn and scared Appellant away. Id. at 263-64.
Gnipp’s next-door neighbor, Kathleen Dorben (“Dorben”), testified that
she heard the car horn around 1:15 am. Id. at 240. She looked out the
front of her residence, away from Gnipp’s garage, and saw a man who
appeared to be anxious moving at a fast pace. Id. at 250. The man was
walking towards a car that had not been there when Dorben had returned
home thirty minutes earlier. Id. at 238. The man got into the back seat of
the car and lay down as if hiding. Id. at 240-41. A few minutes later the
man got into the front seat of the car and drove away. Id. Dorben did not
see the man’s face, but described him as wearing a hooded sweatshirt
similar to the clothing described by Appellant’s victims. Id. at 242. She
described the car as an older model, light blue, four-door sedan. Id. at 240-
41. When shown a photograph of Appellant’s car at trial, she identified it as
the same make and model as the car she saw the night of the robbery. Id.
at 242.
Finally, surveillance cameras captured Appellant returning to the
Casino garage in his vehicle at 1:38 am. Id. at 305. This timeline matches
the time required for Appellant to leave the Casino with Gnipp at 1:01 am,
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follow Gnipp for fifteen minutes to his residence, rob him, then hide for a few
minutes in his vehicle, and drive fifteen minutes back to the Casino. When
Appellant returned to the Casino, he had enough cash in his possession to
play table games for approximately twenty minutes before returning to the
parking garage to look for his next victim.
Based on the foregoing, we conclude that the suppression court’s error
was harmless.
Weight of the Evidence
Appellant’s final two claims challenge the weight of the evidence
identifying him as the assailant in the Robbery of Eritano and the Robbery
and Burglary of Gnipp. Appellant’s Brief at 30-37.
A challenge to the weight of the evidence concedes that there was
sufficient evidence to sustain the verdict. Commonwealth v. Widmer, 744
A.2d 745, 751 (Pa. 2000). For that reason, the trial court need not view the
evidence in the light most favorable to the verdict winner, and may instead
use its discretion in determining whether the verdict was against the weight
of the evidence. Id.
Since the trial court judge was present for the trial and heard the
evidence presented, this Court “will give the gravest consideration” to the
determinations made by the trial judge as to whether the verdict was
against the weight of the evidence so that a new trial should be granted in
the interest of justice. Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.
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Super. 2015). Consequently, appellate review of a weight claim solely
assesses whether the trial court judge committed an abuse of discretion in
determining whether the verdict was against the weight of the evidence. Id.
Challenges to a trial court’s determination that the jury’s verdict is not
against the weight of the evidence is one of the least assailable reasons for
granting or denying a new trial. Id. Furthermore, “[i]n order for a
defendant to prevail on a challenge to the weight of the evidence, the
evidence must be so tenuous, vague and uncertain that the verdict shocks
the conscience of the court.” Id. (quotation marks and citation omitted).
The substance of Appellant’s argument supporting his weight challenge
is an assertion that the victims’ identification testimony is “inconsistent” and
based on “overly suggestive” circumstances. Appellant’s Brief at 31-32, 33.
The trial court considered Appellant’s weight claims, and concluded:
The verdict was not against the weight of the evidence. Video surveillance corroborated Eritano’s in-court identification of Appellant. According to the video, Appellant and the Eritanos were the only people present on the fourth floor of the garage at [the time of the robbery.] Appellant is seen in the video backing up his vehicle to leave his parking space but then pulling forward again into his space when he sees the Eritanos. Appellant exits his vehicle, leaves his engine running, and walks over to the Eritanos. Twenty or thirty seconds later, Appellant runs back to his car and exits the Casino. In addition, Eritano stated at trial that he was one hundred percent certain that Appellant was his assailant. The metal bar Eritano described was recovered from Appellant’s car. . . . This combination of evidence does not shock one’s conscience to the point that a new trial must be given for right to prevail.
Lastly, Appellant alleges that the verdicts of guilty for the [R]obbery and [B]urglary of Gnipp were against the weight of
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the evidence, again based on inconsistent and suggestive identification. [At trial,] Gnipp testified that he was unable to identify anyone from the photo array the police showed him but was able to identify Appellant at the [P]reliminary [H]earing. Gnipp stated it was easier for him to identify Appellant in person instead of from a two[-]dimensional image. Despite Appellant appearing at the [P]reliminary [H]earing in a red Allegheny County Jail jumpsuit, Gnipp explained that he was able to identify him because he saw him for the first time since the incident in the flesh. Gnipp’s identification is also supported by circumstantial evidence, including the Casino video and a neighbor’s testimony of hearing a car horn, looking out a window, seeing a vehicle similar to Appellant’s at the crime scene and observing a man, alone, engage in suspicious behavior, specifically hiding in the back seat for several minutes before getting in the driver’s seat and leaving the area. The jury’s verdict does not shock one’s conscience.
Trial Court Opinion at 12-13.
Having given the trial court’s findings “the gravest consideration,” as
we must, we conclude that the trial court did not abuse its discretion when
determining that the verdict was not “so tenuous, vague and uncertain” as
to be against the weight of the evidence. Talbert, supra at 546. In doing
so, we incorporate our discussion, supra, of the circumstantial evidence
supporting the identification of Appellant as Gnipps’ assailant.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 10/6/2017
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