Commonwealth v. Moye

836 A.2d 973, 2003 Pa. Super. 431, 2003 Pa. Super. LEXIS 4057
CourtSuperior Court of Pennsylvania
DecidedNovember 14, 2003
StatusPublished
Cited by52 cases

This text of 836 A.2d 973 (Commonwealth v. Moye) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Moye, 836 A.2d 973, 2003 Pa. Super. 431, 2003 Pa. Super. LEXIS 4057 (Pa. Ct. App. 2003).

Opinion

OPINION BY

GRACI, J.:

¶ 1 Appellant, Marvin Moye (“Moye”), appeals from the judgment of sentence entered November 6, 2002, following his conviction for burglary and criminal trespass in the Court of Common Pleas of Philadelphia County. We affirm.

I. FACTUAL AND PROCEDURAL HISTORY

¶ 2 Moye challenges only the trial court’s refusal to suppress the identification evidence offered against him. We shall therefore begin with the following pertinent facts as summarized by the trial court:

The [Cjommonwealth evidence during the suppression hearing consisted primarily of the testimony of the complainant Sangmany Nasimeung [“Sangma-ny”] ... and her daughter Dougangchay Nasimeung [“Dougangchay”], supported by the testimony of Police Officer Vince Goodchild.
On June 4, 2001, at 10:10 p.m., [Sangma-ny] who resided at 336 North 41st Street, apartment two[,] with her children, was sleeping on the couch on the second floor. [Sangmany] heard an intruder break into the third floor window and observed a man, later identified as [Moye], descending the stairway from the third floor. [Sangmany] watched [Moye] go to the VCR, then to the microwave and then over to [Sangmany, who was] pretending to be asleep on the couch. [Moye] retreated[,] climbed the stairs and left through the same window on the [third] floor.
[Sangmany] called 911 and described the male intruder as a dark faced African-American wearing what appeared to be white long pants and no shirt....
Dougangchay Nasimeung was also a witness. She testified that she had observed a black male pass[]by her bedroom door which is between the window used by [Moye] for entrance to the house and the stairway which [Moye] descended and ascended. Although Dougangchay [ ] had not exited her bedroom-while the intruder was inside the house, she watched as the intruder was attempting to flee from the balcony of the apartment. Dougangchay [ ] spoke to him out the window and said, directly ■to his face, “I see you.” Dougangchay [ ] described the [intruder] as an African-American wearing beige pants and no top. Dougangchay [ ] identified [Moye] as the man she observed fleeing the apartment and climbing down the balcony. At ground level, there were bushes that [Moye] went thr[ough].
Officer Goodchild testified that he received a radio call of a burglary in progress. Flash Information was relayed of a black male, no shirt, wearing gray [975]*975sweat pants exiting from the back window of the house. Within minutes Officer Goodchild and his partner observed a man matching the description running in the opposite direction of the apartment. [Moye] acted belligerently and asked, “why are you stopping me ... I’m a black man, can’t run down the street.” Officer Goodchild immediately noticed that [Moye] had fresh scrapes on [his] forearms, leaves in his hair and pollen stuck to his chest. During said encounter, [Moye] became irate and slurred racial comments to the police officers who were both white males. [Moye] proceeded to make a sudden darting movement to get away from the officers. [Moye]’s actions increased and he was cuffed for the protection of the police officers.

Opinion of the Court, 2/12/03, at 1-3.

¶ 3 The officers placed Moye in a police van and transported him to a location near the victims’ residence. Sangmany and Dougangchay were brought to the van together and identified Moye as the man they had seen in their apartment that evening. Moye was the only individual in the van and was handcuffed during the show-up. Sangmany testified that she recognized the pants Moye was wearing and that his face and body were the same as the perpetrator’s. N.T., 9/12/02, at 18-19. Sangmany was “90 percent” sure the man in the police van was the burglar. Id. at 26. Dougangchay recalled that as the officers led her and her mother to the van, they told her “they had someone” and had “found him running down the street all sweaty and just tired looking.” N.T., 9/13/02, at 24. Dougangchay stated that she had no doubt that Moye was the man she had seen exiting her apartment, id. at 17-18, based primarily on his pants, face, and the fact that he was shirtless. Id. at 20-21. Dougangchay also remembered seeing Moye four or five times before in her neighborhood. Id. at 25. Following the positive identifications by the complainants, Moye was arrested and charged with burglary, 18 Pa.C.S.A. § 3502(a), criminal trespass, 18 Pa.C.S.A. § 3503(a), criminal mischief, 18 Pa.C.S.A. § 3304(a), and attempted theft, 18 Pa.C.S.A. § 901(a).

¶4 In a pre-trial motion to suppress evidence, Moye argued that the police lacked probable cause to place him under arrest and that the out-of-court identifications made by Sangmany and Dougangch-ay were unduly suggestive. Moye also argued that the suggestive out-of-court identifications would necessarily taint any subsequent in-court identifications by the complainants. The trial court conducted a two-day hearing and denied Moye’s motion on September 13, 2002. He proceeded to a jury trial and on September 19, 2002, was convicted of burglary and criminal trespass.1 The trial court sentenced Moye to a term of imprisonment of five to ten years for burglary and imposed no sentence for the lesser-included offense of criminal trespass. This timely appeal followed.

¶ 5 Moye raises the following issue on appeal:

Were [Moye]’s state and federal constitutional rights to due process of law violated because the lower court refused to suppress the complainants’ in-court and out-of-court identifications of [Moye], where the Commonwealth failed to establish that the identification evidence was based upon a source independent of an unduly suggestive post-incident confrontation?

[976]*976Brief for Appellant, at 2.2

II. DISCUSSION

“Our standard of review of a denial of suppression is whether the record supports the trial court’s factual findings and whether the legal conclusions drawn therefrom are free from error.” Commonwealth v. McClease, 750 A.2d 320, 323 (Pa.Super.2000). Our scope of review is limited; we may consider “only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole.” Commonwealth v. Maxon, 798 A.2d 761, 765 (Pa.Super.2002). “Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.” McClease, 750 A.2d at 323-24 (quoting In the Interest of D.M., 560 Pa. 166, 743 A.2d 422, 424 (1999)).

Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa.Super.2002) (en banc). This is the standard of review we have applied in appeals challenging the denials of motions to suppress identification testimony. See, e.g., McElrath v. Commonwealth, 405 Pa.Super. 431, 592 A.2d 740

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Bluebook (online)
836 A.2d 973, 2003 Pa. Super. 431, 2003 Pa. Super. LEXIS 4057, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-moye-pasuperct-2003.