Com. v. Banks, T.

• Court: Superior Court of Pennsylvania
• Decided: October 1, 2019
• Docket: 1858 WDA 2017
• Status: Unpublished

Opinion

J-A08006-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TONY BANKS : : Appellant : No. 1858 WDA 2017

Appeal from the Judgment of Sentence November 16, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0002492-2017, CP-02-CR-0007772-2016

BEFORE: PANELLA, P.J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY PANELLA, P.J.: FILED OCTOBER 1, 2019

Appellant, Tony Banks, challenges the judgment of sentence entered in

the Allegheny County Court of Common Pleas, following his convictions for

aggravated assault and related offenses. On appeal, Appellant argues the

Commonwealth failed to present any evidence to sustain his conviction for

criminal mischief. He also maintains the court erred in denying his motion to

suppress witness identification evidence. After careful review, we vacate

Appellant’s conviction for criminal mischief, and affirm the remainder of his

judgment of sentence.

On May 12, 2016, at around 11 p.m., a group of nine men loitered in an

abandoned lot in the Homewood neighborhood of Pittsburgh. The men,

including Paris Minard and Brandon Murray, were playing cards, drinking, and

idly chatting. J-A08006-19

Minard watched as a white Mercedes sport utility vehicle drove past the

lot three times. He recognized the driver as Appellant, a man Minard knew

from around the neighborhood by the nickname “Tone Jigga.” Murray had seen

Appellant in passing before, but did not know his real name.

Minard was wary of Appellant, and cautioned the other men in the yard

that Appellant was dangerous. This animus stemmed from an incident where

a former friend of Minard’s allegedly shot Appellant after the men got into an

altercation several years before. However, Minard had seen Appellant several

times on the street since that incident, and Minard did not believe Appellant

harbored any ill-will toward him.

After circling the block several times, Appellant exited his vehicle and

approached the yard. He shook hands and spoke with the men there, including

Minard. Minard observed that Appellant appeared to be intoxicated. Appellant

placed his cell phone in his pocket, at which time Minard could see the handle

of a semi-automatic gun sticking out of Appellant’s waistband. The sight of

the gun unnerved Minard, who excused himself from the group to go to the

corner store.

On his way back from the store, Minard saw several members of the

group had left, including Appellant. Murray was still playing cards as Minard

approached the lot. Appellant suddenly walked out from behind another

building and pointed the gun at Minard. Appellant said, “This is for getting me

shot by your boy,” and began firing several shots at Minard. Minard ran, but

was struck by a bullet in the ankle and fell. Appellant fled the scene.

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The next morning, police received a call from Murray. Murray told

officers that he had spotted Appellant in the Homewood neighborhood again,

this time driving a red Pontiac convertible. Murray told officers where he was

standing, and the direction in which he saw Appellant heading.

Several officers responded to the scene. Police conducted a traffic stop

of Appellant’s vehicle, and detained him. Murray was picked up by an officer

driving a marked patrol car, and driven past Appellant’s stopped vehicle and

the other cars. Murray identified Appellant as the shooter from the previous

night, and Appellant was arrested. Appellant was charged with attempted

murder, aggravated assault, possession of a firearm by a person prohibited,

carrying a firearm without a license, criminal mischief, and four counts of

recklessly endangering another person (“REAP”).1

At Appellant’s preliminary hearing, Minard identified Appellant as his

assailant. Appellant sought to suppress Minard and Murray’s identifications of

Appellant as the shooter, as well as evidence recovered from Appellant’s

vehicle following the traffic stop. After a hearing, the court denied the

suppression motions.

Appellant proceeded to a jury trial on all charges except possession of a

firearm by a person prohibited, which was severed from the jury case and

presented solely to the bench, and criminal mischief, a summary offense. At

the close of the Commonwealth’s case, the court entered a judgment of ____________________________________________

1The Commonwealth also charged Appellant with drug-possession offenses, which were withdrawn before trial.

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acquittal on three of the REAP charges, as the Commonwealth conceded it

failed to present any evidence regarding these charges. Appellant was

convicted of aggravated assault, carrying a firearm without a license, the

remaining REAP count, possession of a firearm by a person prohibited, and

criminal mischief.2

The court ordered a pre-sentence investigation report, and ultimately

sentenced Appellant to an aggregate eight years and six months to seventeen

years’ incarceration, followed by five years of probation. Appellant filed a

timely notice of appeal, and this case is now properly before us.3

On appeal, Appellant raises two challenges to his judgment of sentence.

In the first, he argues the court erred in denying his motion to suppress Paris

Minard’s identification of Appellant as the shooter.

We review an order denying a motion to suppress by determining

whether the findings of fact are supported by the record, and whether the

legal conclusions drawn from those facts are without error. See

Commonwealth v. Freeman, 128 A.3d 1231, 1240 (Pa. Super. 2015). “In ____________________________________________

2 18 Pa.C.S.A. §§ 2702(a)(1); 6106(a)(1); 2705; 6105(a)(1); and 3304(a)(5), respectively.

3 Appellant filed a single notice of appeal from his two criminal docket numbers. This practice was prohibited by our Supreme Court’s ruling in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Walker held that where a single order resolves issues on more than one lower court docket, an appellant must file separate notices of appeal at each docket number. See id., at 977. Failure to do so requires quashal. See id. However, Walker was decided on June 1, 2018, and applied prospectively. See id. As Appellant filed his single notice of appeal on December 14, 2017, before Walker was decided, we need not quash.

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making this determination, this Court may only consider the evidence of the

Commonwealth’s witnesses, and so much of the witnesses for the defendant,

as fairly read in the context of the record as a whole, which remains

uncontradicted.” Id. (citation omitted). “Where the record supports the factual

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. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011) (citation

omitted).

The critical factor in determining the propriety of identification evidence

is whether, under the totality of the circumstances, the identification was

reliable. See Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super. 2011).

While suggestiveness in the identification process is a factor to be considered

when determining the admissibility of identification testimony, suggestiveness

alone does not require exclusion. See Commonwealth v. Lark, 91 A.3d 165,

168 (Pa. Super. 2014). “Suggestiveness arises when the police employ an

identification procedure that emphasizes or singles-out a suspect.” Davis, 17

A.3d at 394 (citation omitted). “A pretrial identification will not be suppressed

as violative of due process rights unless the facts demonstrate that the

identification procedure was so infected by the suggestiveness as to give rise

to a substantial likelihood of irreparable misidentification.” Commonwealth

v. Jaynes, 135 A.3d 606, 610 (Pa. Super. 2016) (citation omitted).

Here, Appellant indicates Detective Garrett Spory informed Paris Minard

that his assailant had been arrested. Spory also told Minard Appellant’s legal

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name; Minard had only known Appellant by his street name, “Tone-Jigga.”

Appellant believes that this information caused Minard to wrongly identify

Appellant as the perpetrator.

While Minard did not testify at the suppression hearing, Detective Spory

did. He stated he visited Minard in the hospital after the shooting, and Minard

told him that a man named Tone-Jigga was responsible. See N.T. Hearing,

12/14/16, at 56. Though Minard did not know Tone-Jigga’s real name, Minard

told Spory that he had been acquainted with Tone-Jigga for over twelve years

and had spoken with him many times before. See id., at 51. After Brandon

Murray identified Appellant as the shooter during the police traffic stop, Spory

went to Minard’s home to inform him of Appellant’s arrest. See id., at 57.

Spory also notified Minard of the date set for Appellant’s preliminary hearing

at that time. See id. Spory stated he did not show Minard a picture of

Appellant. See id. Spory affirmed that Minard thereafter testified at the

preliminary hearing and identified Appellant in court as the man who shot him.

See id., at 53.

Based on the foregoing, we do not believe Appellant has established that

Minard’s pretrial identification was the result of suggestiveness that would

render the identification unreliable. On the contrary, Spory testified that

Minard claimed to have had a relationship with his assailant for over twelve

years before the crime. While Spory conceded Minard only knew Appellant by

his street name, Tone-Jigga, Appellant can point to nothing in the record that

suggests Minard identified him in court based on Spory’s information. We do

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not believe Appellant has demonstrated Spory’s visit to Minard influenced his

testimony in any way, given the evidence that clearly establishes Appellant

and Minard had an acquaintanceship for many years before the incident. Thus,

we find no grounds for reversing the suppression court’s order denying

Appellant’s motion.4

In Appellant’s remaining issue, he argues the Commonwealth failed to

present sufficient evidence to sustain his conviction for criminal mischief. The

Commonwealth concedes that Appellant is entitled to relief on this claim, and

we agree.

When reviewing a challenge to the sufficiency of the evidence, we

consider whether, when viewing the evidence admitted at trial in the light

most favorable to the verdict winner, the evidence was sufficient to enable the

factfinder to find all elements of the offense established beyond a reasonable

doubt. See Commonwealth v. Herman, 924 A.2d 1231, 1233 (Pa. Super.

2007). “Any doubt about the defendant’s guilt is to be resolved by the fact

finder unless the evidence is so weak and inconclusive that, as a matter of

law, no probability of fact can be drawn from the combined circumstances.”

Commonwealth v. Sebolka, 205 A.3d 329, 337 (Pa. Super. 2019) (citation

____________________________________________

4 In his Pa.R.A.P. 1925(b) statement, Appellant also challenged the denial of his motion to suppress the evidence recovered from his vehicle and cell phone, and the pretrial identification by Murray. As his brief specifically contests the denial of the suppression motion with regard to Minard’s identification, we find he has abandoned the other issues on appeal. See Commonwealth v. Heggins, 809 A.2d 908, 912 n. 2 (Pa. Super. 2002) (holding that issues identified on appeal but not developed in appellant’s brief are waived).

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omitted). “The Commonwealth may sustain its burden by means of wholly

circumstantial evidence.” Id. (citation omitted).

“A person is guilty of criminal mischief if he intentionally damages real

or personal property of another[.]” 18 Pa.C.S.A. § 3304(a)(5).

Instantly, Appellant was charged with criminal mischief as a summary

offense. Following trial, the court deemed Appellant guilty of the offense, and

sentenced him to guilt without further punishment. In the court’s Rule 1925(a)

opinion, it states that it “may reach its finding of guilt by relying on the

combined circumstances of a particular event.” Trial Court Opinion, filed

8/21/18, at 12. However, the court declined to specify precisely which

circumstances it believes support Appellant’s conviction for criminal mischief.

Our own review of the record reveals the criminal complaint charged

Appellant with criminal mischief based on allegations that Appellant caused

damage to another victim’s vehicle as Appellant shot at Minard. See Criminal

Complaint, filed 5/13/16, at 4. During the preliminary hearing, Detective

Spory testified that this other victim claimed Appellant had shot his

windshield. See N.T. Hearing, 6/28/16, at 20.

However, at no point during trial did the Commonwealth present

evidence of a crime committed against a victim other than Minard, or evidence

of any damage to real or personal property caused by Appellant. See N.T.

Trial, 2/28/17–3/2/17. In fact, the Commonwealth conceded at the close of

trial that it failed to present any such evidence, and the court entered a

judgment of acquittal on the REAP counts related to the other, unspecified

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victims. See N.T. Trial, 3/2/17, at 198. The Commonwealth continues to

concede that it failed to present any evidence to sustain Appellant’s conviction

for criminal mischief. See Appellee’s Brief, at 9.

As we can find no evidence presented at trial to sustain Appellant’s

conviction for criminal mischief, we hold the conviction must be vacated. We

affirm Appellant’s remaining judgment of sentence.5

Judgment of sentence affirmed in part and vacated in part. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/1/2019

5 Because the court imposed a sentence of guilt without further punishment on this conviction, vacating this conviction does not upset the sentencing scheme, and we are not required to remand. See Commonwealth v. Lomax, 8 A.3d 1264, 1268-1269 (Pa. Super. 2010) (holding that when our disposition does not upset overall sentencing scheme, there is no need for remand).

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