Commonwealth v. Mbewe, 1004 WDA 2017

203 A.3d 983

COMMONWEALTH of Pennsylvania

v.Loti MBEWE, Appellant

No. 1004 WDA 2017

Superior Court of Pennsylvania.

Submitted October 1, 2018

Filed February 1, 2019

Brandon M. Herring, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, and Paul R. Scholle, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: OTT, J., MURRAY, J., and STEVENS,^* P.J.E.

OPINION BY OTT, J.:

Loti Mbewe appeals from the judgment of sentence imposed on February 16, 2017, in the Court of Common Pleas of Allegheny County. Mbewe received a bench trial¹ on the charges of robbery – intent to inflict serious bodily injury (two counts), conspiracy – intent to inflict serious bodily injury, carrying a firearm without a license, person not to possess a firearm, and simple assault.² Mbewe was found guilty on both counts of robbery and conspiracy; he was acquitted of all other charges. He received an aggregate sentence of three to six years' incarceration to be followed by three years' probation. In this timely appeal, Mbewe claims that the trial court erred in failing to grant his motion to suppress identification which resulted from an impermissibly suggestive photo lineup, and that the verdict was against the weight of the evidence. After a thorough review of the submissions by the parties, relevant law, and the certified record, we affirm.

The facts underlying this appeal are quite detailed. The parties are familiar with these facts, so we will not relate them herein. We refer to and rely on the findings of fact as related by the trial court in its comprehensive Pa.R.A.P. 1925(a) opinion of June 25, 2018. Specifically, in this regard we refer to pages 2-13, inclusive. Briefly, the victims in this matter, Ava Lewis and Elizabeth O'Leary, were seeking to purchase drugs from Joe Lewis.³ Joe Lewis arrived at Ms. O'Leary's residence accompanied by a person later identified as Defendant, Loti Mbewe. Although Ava and Joe Lewis had prior contact with each other on Facebook, neither women had met Mbewe prior to his arrival at Ms. O'Leary's residence with Joe Lewis. Lewis and Mbewe robbed the two women at gunpoint, taking several hundred dollars.

Initially reluctant to report the crime, the two women eventually reported the robbery to the police. Although the description of Lewis's accomplice provided by the victims did not accurately describe Mbewe, one of the police officers had prior knowledge of both Lewis and Mbewe. Accordingly, when the officer heard the names Joe and Loti, he arranged for a pair of photo lineups, one for each man. Although Ava Lewis was unable to identify Mbewe from the photographs, Ms. O'Leary identified the photograph of Loti Mbewe with 95% certainty that she had identified the perpetrator.

In his first issue, Mbewe argues the trial court erred in failing to suppress Ms. O'Leary's identification of him through an unduly suggestive photo array. Our standard of review of 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. Where, as here, the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's legal conclusions are not binding on an appellate court, "whose duty it is to determine if the suppression court properly applied the law to the facts." Thus, the conclusions of law of the courts below are subject to our plenary review.

Commonwealth v. Kemp , 195 A.3d 269, 275 (Pa. Super. 2018) (quoting Commonwealth v. Jones , 605 Pa. 188, 988 A.2d 649, 654 (2010).

Further,

"Whether an out of court identification is to be suppressed as unreliable, and therefore violative of due process, is determined from the totality of the circumstances." Commonwealth v. Carson , 559 Pa. 460, 480, 741 A.2d 686, 697 (1999), cert. denied , 530 U.S. 1216, 120 S.Ct. 2220, 147 L.Ed.2d 252 (2000), abrogated on other grounds by Commonwealth v. Freeman , 573 Pa. 532, 827 A.2d 385 (2003). "Suggestiveness 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. Kubis , 978 A.2d 391, 396 (Pa. Super. 2009). Identification evidence will not be suppressed "unless the facts demonstrate that the identification procedure was ‘so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ " Commonwealth v. Burton , 770 A.2d 771, 782 (Pa. Super. 2001), appeal denied , 582 Pa. 669, 868 A.2d 1197 (2005), overruled on other grounds by Commonwealth v. Mouzon , 571 Pa. 419, 429, 812 A.2d 617, 623 (2002), quoting Simmons v. United States , 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Photographs used in line-ups are not unduly suggestive if the suspect's picture does not stand out more than the others, and the people depicted all exhibit similar facial characteristics. Commonwealth v. Fisher , 564 Pa. 505, 520, 769 A.2d 1116, 1126-1127 (2001).

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

Here, Mbewe does not argue that the photographs themselves were unduly suggestive. That is, he does not claim that his photograph stood out from the other photographs in the array in some manner, thereby calling undue attention to his photo. Rather, he argues the police based the photo array "on the abstract created by the victims' post-incident description." Appellant's Brief at 12. However, this argument is a mischaracterization of dicta taken from Fulmore , supra .

Similar to this matter, in Fulmore , the police created photo arrays based upon one of the officer's belief that Fulmore and another man, Kingwood, were one of the perpetrators of the crime, even though Kingwood did not precisely match the victim's description. A photo array with Kingwood's photo included was presented to the victim. The other photos in the array resembled Kingwood – not the physical description provided by the victim; just as in this matter, the other photos resembled Mbewe and not the description provided by Ms. O'Leary. This was found to be the proper procedure. A panel of our Court stated:

In compiling an array that would meet due process standards, Detective Harrigan was required to place photos in the array of individuals who resembled the suspect, Kingwood, not the abstract created by [the victim's] post-incident description.

Id. at 347. It appears that Mbewe has mistakenly argued that the identification of Mbewe and inclusion of his photo in an array of photos depicting faces similar to his, was the improper "abstract created by [the victim's] post-incident description." This would only be true if the other photos included in the array fit the victim's description, making Mbewe's photo stand out as different. Additionally, the mere fact that the photos in the array containing Mbewe's picture did not match the victim's description does not mean the identification process was unduly suggestive. See In re Love , 435 Pa.Super. 555, 646 A.2d 1233, 1237 (1994) ("[T]here is no merit to the argument the identification process was unduly suggestive because the photos did not match the victim's description of her assailant.").

In light of the above, Mbewe is not entitled to relief on this aspect of his claim.

Regarding the motion to suppress, Mbewe also argues the evidence was unworthy of belief because of the high stress situation, cross-racial identification and a lack of independent basis for the identification. These challenges to the credibility of the evidence equate to a challenge to the weight of the evidence. See Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) ("This argument goes to the credibility of the witness's testimony, and is, therefore, not an attack on the sufficiency of the evidence, but an allegation regarding the weight it should have been afforded."). While we do not often review a weight of the evidence claim in terms of a motion to suppress, and there is little case law regarding this type of claim, we will treat this challenge to the weight of the evidence as we would any other such claim.⁴ Accordingly, we must first determine if the claim has been preserved.

As an initial matter, a challenge to the weight of the evidence must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607(A)(1)-(3). "The purpose of this rule is to make it clear that a challenge to the weight of the evidence must be raised with the trial judge or it will be waived." Comment to Pa.R.Crim.P. 607. If an appellant never gives the trial court the opportunity to provide relief, then there is no discretionary act that this Court can review.

Commonwealth v. Jones , 191 A.3d 830, 834-35 (Pa. Super. 2018) (footnotes omitted).

Mbewe never raised his weight of the evidence arguments, as applied to the motion to suppress, before the suppression/trial court. Therefore, the challenge to the credibility of the evidence as specifically applied to the motion to suppress is waived.

However, Mbewe has properly preserved his claim that the verdict was against the weight of the evidence. See Mbewe's Post Sentence Motions, 2/24/2017. We emphasize this is a distinct claim from the prior argument regarding the motion to suppress.⁵

The Supreme Court has set forth the following standard of review...