Commonwealth v. Orr

38 A.3d 868, 2011 Pa. Super. 272, 2011 Pa. Super. LEXIS 4308
CourtSuperior Court of Pennsylvania
DecidedDecember 19, 2011
StatusPublished
Cited by167 cases

This text of 38 A.3d 868 (Commonwealth v. Orr) 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. Orr, 38 A.3d 868, 2011 Pa. Super. 272, 2011 Pa. Super. LEXIS 4308 (Pa. Ct. App. 2011).

Opinions

OPINION BY

GANTMAN, J.:

Appellant, Jeffrey Orr, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his bench trial convictions for robbery, conspiracy to commit robbery, and possessing instruments of crime (“PIC”).1 Appellant asks us to determine whether the Commonwealth presented sufficient evidence to sustain his convictions or, alternatively, whether his convictions are against the weight of the evidence, [870]*870where George Thompson (“Victim”) did not positively identify Appellant as the perpetrator in later proceedings. We hold the Commonwealth presented sufficient evidence to support Appellant’s convictions, and the court correctly found Appellant’s convictions were not against the weight of the evidence, given the circumstantial evidence linking Appellant to the crimes charged, which also corroborated Victim’s unequivocal identification of Appellant offered shortly after the robbery. Accordingly, we affirm the judgment of sentence.

The relevant facts and procedural history of this case are as follows. On February 8, 2008, at approximately 10:30 p.m., Victim was walking home on the 2800 block of Jasper Street in South Philadelphia. As he was walking, Victim noticed two young men sitting on opposite sides of the street. When Victim passed the young men, they stood up and started to follow Victim. Victim began to run, but the two men chased after him, shouting: “Hold it. Don’t move. Don’t move, old head.” Victim observed both men had guns in their hands, so Victim stopped and raised his hands above his head. The two men continued to yell: “Don’t move. Give me money.” As Victim stood still, the shorter of the two men stood in front of Victim and pointed a gun at Victim, while the taller of the two men stood behind Victim. Although Victim could not see if the taller man was holding a gun to Victim’s back, Victim presumed he was. The two men patted down Victim, and the shorter man said: “Give me your jacket.” Victim complied, removed his jacket, and dropped it on the ground. Victim’s jacket contained, inter alia, his house keys, cell phone, glasses, and exactly twenty-six dollars ($26.00). As the men patted down Victim, they saw his wallet, so Victim removed his wallet and threw it on the ground. At one point, the shorter man swung his gun at Victim’s face. Victim ducked and put his hand up to block the gun; the gun struck and injured Victim’s finger. The men picked up Victim’s belongings and fled together toward Somerset Street.

After the robbery, Victim ran to his neighbors’ houses for help but no one responded. Consequently, Victim was .forced to “break into” his own house, as the men had stolen his house keys. Victim immediately called the police, and Officer Denise Flynn arrived at Victim’s house within five minutes of Victim’s call. Victim described the robbers to Officer Flynn, recalling both men appeared to be in their twenties, with light complexions, and carried guns. Victim described the shorter man as approximately 5'3" or 5'4" and Hispanic. Victim explained the taller man, who stood behind Victim during the robbery, was approximately 5'9", had a lighter complexion than the shorter man, had a red beard, and was wearing a camouflage-patterned hooded jacket and gray pants. Officer Flynn put out a flash description of the suspects. Approximately five minutes later, Officer Erik Pross reported he was holding two men matching the descriptions of the suspects at the 2800 block of Boudi-not Street, about three and one-half blocks away from Victim’s home.2

Officer Flynn took Victim in her police vehicle to the location where Officer Pross was holding the suspects. Officer Flynn testified that when she asked Victim to look at the men, Victim positively identified Appellant as the taller man involved in the robbery, exclaiming: “Yes. That’s him. That’s the guy. That’s the guy that did [871]*871it.” Officer Flynn asked Victim if he was certain of his identification of Appellant, and Victim replied affirmatively. Appellant was light-skinned, had a red beard, was in his twenties, and wore a gray/black camouflage hooded jacket and gray pants when Victim identified him. Victim also stated the shorter man Officer Pross had detained was not the other man involved in the robbery. Subsequently, Officer Pross arrested and searched Appellant. Officer Pross recovered exactly twenty-six dollars ($26.00) from Appellant’s person.

The Commonwealth charged Appellant •with robbery and related offenses. The court held a bench trial on January 28, 2009. Following trial, the court convicted Appellant of robbery, conspiracy to commit robbery, and PIC. Appellant proceeded to sentencing on March 10, 2009. Prior to sentencing, Appellant made an oral post-trial motion challenging the sufficiency and weight of the evidence, which the court denied. Thereafter, the court sentenced Appellant to an aggregate term of five (5) to ten (10) years’ imprisonment, plus five (5) years’ probation. On March 20, 2009, Appellant timely filed a post-sentence motion, which the court denied on April 21, 2009. On May 19, 2009, Appellant timely filed a notice of appeal. On September 29, 2009, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa. R.A.P. 1925(b), which Appellant timely filed on October 19, 2009.

On January 28, 2011, a panel of this Court reversed Appellant’s judgment of sentence, with one dissent. The majority decided Victim’s identification of Appellant based only on Appellant’s clothing and appearance was so inherently unreliable that the evidence presented was insufficient to sustain Appellant’s convictions, particularly where Victim did not positively identify Appellant out of context, from a photo display, a later line-up, or in post-incident court proceedings. The dissent maintained the Commonwealth had presented sufficient circumstantial evidence linking Appellant to the crimes charged and to sustain Appellant’s convictions. On March 1, 2011, the Commonwealth filed a petition for en banc reargument, which this Court granted on April 4, 2011.

Appellant raises the following issues for our review:

WAS NOT THE EVIDENCE INSUFFICIENT TO CONVICT [APPELLANT] WHERE THE COMMONWEALTH’S ONLY EVIDENCE WAS THE TESTIMONY OF POLICE OFFICERS THAT THE COMPLAINING WITNESS IDENTIFIED [APPELLANT] SHORTLY AFTER THE INCIDENT, BUT WHERE THE COMPLAINING WITNESS MADE NO SUBSEQUENT IDENTIFICATIONS AND TESTIFIED AT TRIAL THAT HE IDENTIFIED [APPELLANT] BASED SOLELY ON HIS CLOTHING AND BEARD, AS HE NEVER SAW THE PERPETRATOR’S FACE AND THEREFORE COULD NOT IDENTIFY [APPELLANT] AS BEING INVOLVED IN THE ROBBERY?
WAS NOT [APPELLANT’S] CONVICTION AGAINST THE WEIGHT OF THE EVIDENCE TO SUCH A DEGREE AS TO SHOCK THE CONSCIENCE AS THE COMPLAINING WITNESS TESTIFIED REPEATEDLY AND UNEQUIVOCALLY' THAT HE COULD NOT IDENTIFY [APPELLANT] AS ONE OF THE PEOPLE WHO COMMITTED THIS CRIME, AND WHERE THE COMPLAINING WITNESS DID NOT IDENTIFY [APPELLANT] IN A LINE-UP PROCEDURE, AT A PRELIMINARY HEARING, OR AT TRIAL, AND THUS THE TRIAL COURT [872]*872ABUSED ITS DISCRETION BY FAILING TO SET ASIDE THE VERDICT AND GRANT A NEW TRIAL?

(Appellant’s Brief at 4).

For purposes of disposition, we combine Appellant’s issues. Appellant argues Victim testified repeatedly he was not able to view the face of the man who stood behind him during the robbery.

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Cite This Page — Counsel Stack

Bluebook (online)
38 A.3d 868, 2011 Pa. Super. 272, 2011 Pa. Super. LEXIS 4308, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-orr-pasuperct-2011.