Commonwealth v. Hale

85 A.3d 570

2014 PA Super 19

COMMONWEALTH of Pennsylvania, Appellee

v.Terell HALE, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 8, 2013.

Filed Feb. 6, 2014.

Victor E. Ranch, Philadelphia, for appellant.

Anthony V. Pomeranz, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: BOWES, DONOHUE, and OTT, JJ.

OPINION BY BOWES, J.:

Terell Hale appeals from the judgment of sentence of twelve years and four months to twenty-six years and eight months incarceration imposed by the trial court after a jury found him guilty of persons not to possess a firearm, firearms not to be carried without a license, carrying a firearm on public streets in Philadelphia, and receiving stolen property. After careful review, we uphold the underlying verdicts of guilt but vacate Appellant's judgment of sentence and remand for re-sentencing.

The facts giving rise to Appellant's convictions involved a home invasion on April 10, 2010. At approximately 1:45 a.m., Appellant entered the home of five-month pregnant Shyeta Brown and her five-year-old son. Appellant pointed a handgun at the victim's face, told her and her child to shut up and ordered them to place their heads underneath a pillow. After the victim informed Appellant that she did not have any money, he retrieved her keys and allowed two other men into the apartment. Appellant also placed the covers of the victim's bed over her and her son's head. The men asked Ms. Brown where she kept her money before taking her television and fleeing.

A neighbor heard the screams of Ms. Brown and her son and telephoned police. She observed two men standing outside the front door of the apartment, and later identified Appellant's co-defendant, Andre Bassett. The neighbor witnessed the two men enter Ms. Brown's apartment after the door was opened. One of the men knocked on her door, and she informed them that police were on the way.

Police responded to the scene quickly and drove the victim around the neighborhood in an attempt to find the perpetrators. In addition, after learning of the report of the home invasion, Officer Rosario Capaccio saw a television located inside a fence in a front lawn approximately two blocks from the victim's residence. The victim identified the television as hers. Police set up surveillance in the area and witnessed a minivan approach. Despite it being near 3:00 a.m., the van's lights were not illuminated. Appellant and Andre Bassett exited the vehicle, and Appellant attempted to retrieve the television. As police approached, Appellant and Bassett began to walk away before running. Appellant attempted unsuccessfully to evade police by hiding between two cars. Upon opening the sliding door to the van, Detective Andrew Danks saw a black handgun on the floor of the vehicle. He later obtained a search warrant for the van and police recovered the weapon.

After police arrested Appellant and Bassett, they transported the victim to the scene. Both men were in handcuffs. The victim identified Appellant as the individual who broke into her apartment and pointed a gun at her. Appellant filed a suppression motion, contending that the victim's out-of-court identification was unduly suggestive. The court denied the motion and the matter proceeded to jury selection.

During jury selection, Appellant asked that juror number 39 be stricken for cause. Appellant proffered that, since the juror was a law enforcement officer previously employed by the Philadelphia District Attorney's Office and currently a school police officer, he should be struck as per se biased. The court denied the request, and Appellant exercised a peremptory strike to remove the individual from the final jury pool. The jury found Appellant guilty of the firearms offenses and receiving stolen property; however, they could not reach a verdict on the remaining charges. The court declared a mistrial as to charges of robbery, burglary, and conspiracy.

Thereafter, on December 19, 2011, the court sentenced Appellant consecutively on each conviction. Specifically, it sentenced Appellant to five to ten years incarceration for persons not to possess a firearm, three and one-half years to seven years on the firearms not to be carried without a license charge, two to four years for receiving stolen property, and one year and ten months to four years and ten months for carrying a firearm on the public streets of Philadelphia. Appellant did not timely file a post-sentence motion, but on January 4, 2012, requested and filed a nunc pro tunc post-sentence motion. The court granted Appellant's request to file the motion, and vacated the original sentence.

The court conducted a second sentencing hearing on March 12, 2012. Therein, Appellant maintained that his sentence was both excessive and illegal. In this latter respect, he argued that his sentence for persons not to possess a firearm exceeded the statutory maximum for the grading of the offense. In leveling this argument, he posited that the court incorrectly increased the grading of the crime to a second-degree felony based on a prior juvenile adjudication. According to Appellant, the proper grading of his offense should have been as a misdemeanor of the first-degree based on the default grading provision for firearms offenses outlined in 18 Pa.C.S. § 6119.

The court rejected Appellant's arguments and reinstated its original sentence. This timely appeal ensued. The trial court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellant complied, and the court authored its Pa.R.A.P. 1925(a) decision. The matter is now ready for this Court's review. Appellant presents three issues for our consideration.

1. Did not the trial court err in denying the motion to suppress the out-of-court identification, as well as the subsequent in-court identifications, as the circumstances of the identification were unduly suggestive?

2. Did not the trial court err in denying Mr. Hale's challenge to jury panel member # 39 for cause, forcing Mr. Hale to use his last peremptory challenge?

3. Was not the sentence of five to ten years incarceration for the charge of persons not to possess firearms illegal, as the proper grade of the offense under the circumstances of this case was as a misdemeanor of the first degree?

Appellant's brief at 3.

Appellant's first issue is a challenge to the trial court's suppression ruling. In addressing this issue, we examine the suppression court's factual findings to determine if they are supported by the record and if its legal conclusions drawn therefrom are correct. Commonwealth v. Wade, 33 A.3d 108, 114 (Pa.Super.2011). We are bound by facts supported by the record and will reverse only where the court's legal conclusions are erroneous. Id. We consider the Commonwealth's evidence at the suppression hearing and so much evidence, if any, presented by the defense that is uncontradicted. Id.¹

In evaluating whether an out-of-court identification should be suppressed as unduly suggestive, this Court has consistently explained:

“Suggestiveness in the identification process is but one factor to be considered in determining the admissibility of such evidence and will not warrant exclusion absent other factors.” McElrath [ v. Com.], 592 A.2d [740] at 742 [ (1991) ]. As this Court has explained, the following factors are to be considered in determining the propriety of admitting identification evidence: “the opportunity of the witness to view the perpetrator at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the perpetrator, the level of certainty demonstrated at the confrontation, and the time between the crime and confrontation.” McElrath, 592 A.2d at 743 (citation omitted). The corrupting effect of the suggestive identification, if any, must be weighed against these factors. Commonwealth v. Sample, 321 Pa.Super. 457, 468 A.2d 799 (1983). Absent some special element of unfairness, a prompt “one on one” identification is not so suggestive as to give rise to an irreparable likelihood of misidentification. Commonwealth v. Brown, 417 Pa.Super. 165, 611 A.2d 1318 (1992).

Wade, supra at 114 (quoting Commonwealth v. Moye, 836 A.2d 973 (Pa.Super.2003)). Indeed, we have regularly held that a prompt one-on-one identification enhances the reliability of the identification. See Commonwealth v. Bullock, 259 Pa.Super. 467, 393 A.2d 921 (1978); Wade, supra;Moye, supra.

Appellant begins by setting forth that the victim was awakened in the dark, forced to hide her face under a pillow, and provided only a vague description of the intruder. He contends that the description “fit most young black males in Philadelphia.” Appellant's brief at 13. Appellant continues that police made suggestive comments to the victim by informing her that they caught men “coming back for the TV.” Id. According to Appellant, these comments, combined with the victim's lack of an opportunity to see the perpetrator's face, and “the inherent suggestivity of the circumstances,” warrant the conclusion that the victim's initial identification should have been suppressed. Id.

The Commonwealth counters by highlighting that Pennsylvania courts have routinely held that on-the-scene identifications have increased reliability due to the short duration between the crime and the identification. In forwarding its argument, it also submits that suggestiveness is but one factor in deciding whether an identification should be excluded and that under the totality of circumstances herein, suppression was not warranted. The Commonwealth avers that the victim saw Appellant without his face covered when he entered her bedroom and for an additional twenty-five to thirty seconds while he pointed a gun at her. Additionally, the victim observed Appellant's face several other times during the incident and specifically rejected another individual as the perpetrator shortly before...