Opinion
No. 2351 EDA 2008.
March 2, 2010.
Appeal from the Judgment of Sentence June 6, 2008, Court of Common Pleas, Delaware County, Criminal Division at No. CP-23-CR-0005741-2006.
BEFORE: GANTMAN, DONOHUE and CLELAND, JJ.
¶ 1 Marcus Brown ("Brown") appeals from the judgment of sentence entered on June 6, 2008 following his conviction of robbery, 18 Pa.C.S.A. § 3701(a)(1)(ii), aggravated assault of a police officer, 18 Pa.C.S.A. § 2702(a)(3), and possession of an instrument of crime ("PIC"), 18 Pa.C.S.A. § 907(a). On appeal, Brown raises a suppression issue, as well as weight and sufficiency claims. After careful review, we affirm.
¶ 2 The relevant facts and procedural history of this case are as follows. On April 5, 2006, at approximately 11:30 a.m., Uma Golla ("Golla") was working as a cashier at an Exxon gas station and convenience store located in East Lansdowne, Delaware County, Pennsylvania. While two customers were getting tea in the back of the store, Brown entered the store and stood near an ATM machine. After the two customers left, Brown asked Golla to show him where the sunflower seeds were located. Brown, who was wearing a black coat and a black hat or bandanna, pulled a gun out of a brown plastic bag and pointed the gun at Golla's face. Throwing her another plastic bag, which was white, Brown demanded that Golla give him money and threatened to kill her if she did not. Golla yelled for her manager. After the manager appeared, Brown ran out of the store.
¶ 3 Meanwhile, Chief John Zimath ("Chief Zimath") of the East Lansdowne Police Department was on patrol in an unmarked police vehicle near the Exxon station. At approximately 11:30 a.m., he observed Brown, who was wearing a black coat and a black knit hat, standing on the sidewalk peeking suspiciously from behind a dumpster at the Exxon, with a white plastic bag protruding from his coat pocket. Two customers finished pumping gas and drove away from the station. Brown then walked quickly into the convenience store. Brown was inside for approximately one minute, after which he ran out of the store, through a parking lot, and into a nearby alley.
¶ 4 Chief Zimath, still inside his vehicle, followed Brown, who jumped into and drove away in a maroon minivan that was parked on the street. The officer also radioed dispatch to call the Exxon to see if they had had any problems inside. Chief Zimath pulled the minivan over and asked for Brown's driver's license and registration card. When asked where he was coming from, Brown told Chief Zimath that he was coming from a friend's house.
¶ 5 While obtaining Brown's license and registration, Chief Zimath received a call from dispatch informing him that they had spoken to an employee at the Exxon but that due to a language barrier, could not discern if anything had happened inside. At this point, Chief Zimath called for backup officers to come wait with Brown while he investigated the events at the convenience store. Officer David Schiazza ("Officer Schiazza") and Officer Albert DeBella ("Officer DeBella") responded as backup officers.
¶ 6 Chief Zimath drove back to the Exxon and spoke with Golla, who told him that an African-American man had attempted to rob the store by pointing a gun at her, throwing her a white plastic bag, and demanding money. After speaking with Golla, Chief Zimath called Officer DeBella and advised him to take Brown into custody. Just before Chief Zimath's call, Officer Schiazza observed what appeared to be a black handgun inside Brown's minivan, on the floor behind the driver's seat. (Police later discovered that it was actually a toy gun colored in with black magic marker, with its barrel taped.)
¶ 7 Officer DeBella asked Brown to step out of the minivan and place his hands behind his back. As Officer Schiazza attempted to handcuff Brown, Brown pulled away. Officer DeBella attempted to stop Brown from fleeing, but Brown grabbed the officer and threw him to the ground. He then ran across the street and onto the lawn of a neighboring house, with Officers Schiazza and DeBella in pursuit. After being tackled by Officer Schiazza, Brown struggled and flailed his arms, striking the officer in the arm, shoulder and mouth. Chief Zimath responded to a call for backup and found Officers Schiazza and DeBella rolling around on the ground, attempting to subdue Brown. Eventually, Brown was handcuffed and taken into custody. The toy gun was recovered from inside of his minivan, as were a black coat, a black knit hat and a white knit hat. Shortly after the police apprehended Brown, Golla identified Brown as the man who had attempted to rob the convenience store. Brown was arrested and charged with multiple offenses.
¶ 8 Prior to trial, Brown filed a motion to suppress the evidence seized from his car. After two evidentiary hearings, the motion was denied. Following a jury trial, Brown was convicted of the crimes listed above, and sentenced to an aggregate term of 147 to 294 months of imprisonment. Post-sentence motions were filed and denied. This timely appeal followed, in which Brown contends that he was entitled to a new trial where:
Specifically, Brown received a mandatory minimum sentence of ten to 20 years of imprisonment for robbery, a consecutive sentence of 27 to 54 months of imprisonment for aggravated assault of a police officer, and a concurrent sentence of 16 to 32 months of imprisonment for PIC.
1) The court erred in denying Brown's motion to suppress and allowing the Commonwealth to present at trial physical evidence found in Brown's minivan after an illegal stop and subsequent illegal search,
2) The jury's verdict was against the weight of evidence, and
3) There was insufficient evidence to find Brown guilty of the crimes of which he was convicted.
Appellant's Brief at 4, 10. We address these claims seriatim.
Suppression Issues
¶ 9 For his first claim on appeal, Brown contends that his rights under the Fourth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 8 of the Pennsylvania Constitution were violated when police stopped his vehicle and detained him, and then seized the toy gun and clothing from his vehicle without a warrant. Appellant's Brief at 11-13.
¶ 10 We begin by setting forth our standard of review:
The admissibility of evidence is a matter addressed to the sound discretion of the trial court and [ . . . ] an appellate court may only reverse upon a showing that the trial court abused its discretion. [W]e consider whether the record supports the suppression court's factual findings, and the legal conclusions drawn therefrom, by reviewing the prosecution's evidence and only so much of the defense's evidence as remains [uncontradicted] within the context of the record as a whole. Factual findings unsupported by the evidence may be rejected, but if the record supports the suppression court's factual findings, reversal of a suppression court's actions is justified only if the inferences and legal conclusions drawn therefrom are erroneous.
Commonwealth v. Turner, — A.2d —, 2009 WL 2962856, *1 (Pa. Super. 2009) (quoting Commonwealth v. Harris, 888 A.2d 862, 868 (Pa. Super. 2005), appeal denied, 593 Pa. 746, 931 A.2d 656 (2007)).
Vehicle Stop and Investigative Detention
¶ 11 We first address Chief Zimath's stopping of Brown's vehicle and the detention which followed. It is well established that contact between the police and the citizenry fall within three general classifications: mere encounter, investigative detention and custodial detention or arrest. Commonwealth v. Donaldson, 786 A.2d 279, 281 (Pa. Super. 2001), appeal denied, 569 Pa. 679, 800 A.2d 931 (2002).
The least restrictive level of interaction between a citizen and an officer is a `mere encounter' or request for information by an officer. The mere encounter does not have to be supported by any level of suspicion and carries with it no requirement that citizens either stop or respond. A more restrictive stop, known as an `investigative detention'[,] subjects a person to a stop and a period of detention. In order to justify the restraint on liberty imposed by this type of encounter, the investigating officer must have a reasonable belief that the person detained has been involved in criminal activity. Finally, the third level of encounter is an arrest or `custodial detention,' which must be supported by probable cause that an offense has been or is being committed.
Commonwealth v. Bennett, 827 A.2d 469, 477 (Pa. Super. 2003) (citations omitted).
¶ 12 In its written opinion submitted to this Court pursuant to Pa.R.A.P. 1925(a), the trial court explained that the interaction between Chief Zimath and Brown was an investigative detention, and that Chief Zimath had reasonable suspicion to conduct such a detention:
In the instant case, Chief Zimath had reasonable suspicion that criminal activity was afoot when he observed [Brown's] actions. He first saw [Brown ] in the parking lot of a gas station, peeking around a dumpster in the direction of the convenience store with a white plastic bag protruding from his coat pocket. [Brown] then walked quickly toward the store, where he remained only briefly and then ran out of the store at full speed. [Brown's] surveillance of the store, in conjunction with his flight from the store, combined with Chief Zimath's experience as a police officer, are factors that establish reasonable suspicion that criminal activity was afoot. Therefore, Chief Zimath was justified in pursuing, stopping and investigating [Brown].
Trial Court Opinion, 12/30/08, at 8-9.
¶ 13 We agree, and conclude that the record supports the trial court's factual findings. While stopped at a traffic light, Chief Zimath observed Brown peeking in a suspicious manner from behind a dumpster area at the Exxon in question. N.T., 7/18/07, at 6-7. The officer noted that Brown, who was standing five or six feet away, was wearing a black knit cap and a three-quarter length leather coat, even though it was April and not very cold outside. Id. at 7.
¶ 14 After two customers left after pumping gas, Chief Zimath watched Brown walk quickly into the convenience store. Id. at 10. Approximately a minute later, Brown came running out of the store, through the parking lot, and into a nearby alley. Id. at 11. Chief Zimath radioed dispatch to call the convenience store to see if they had had any problems, while he followed Brown in his vehicle and watched him jump into the driver's seat of a maroon minivan. Id. at 11-12. At that point, Chief Zimath pulled his car in front of Brown's vehicle and asked him for his driver's license and registration. Brown supplied the requested documents. Id. at 13. When asked where he was coming from, Brown indicated that he was coming from a friend's house. Id. at 14.
¶ 15 Meanwhile, Chief Zimath heard a radio call placed by backup officers stating that they had a language barrier with the employee at the convenience store and could not gather whether anything had happened there. Id. at 15. Chief Zimath radioed for backup officers to stand by Brown's vehicle while he went to the Exxon. At the Exxon, he learned that an attempted robbery with a gun had occurred. Id. Chief Zimath testified that only a few minutes transpired between the time he saw Brown run from the store and his conversation with the store clerk. Id. at 15-16. At that point, he called Officers Schiazza and DeBella to advise them of the attempted robbery and to tell them to arrest Brown. Id. at 16.
¶ 16 We conclude that the observations of Chief Zimath, an officer with 15 years of general police experience and four years as a police chief, gave him reasonable suspicion to personally detain Brown, and then to order backup officers to remain with Brown as he drove back to the convenience store to investigate the events there. Id. at 5-6, 15. The trial court, as fact-finder, found Chief Zimath's testimony credible, and per our standard of review, we decline to overturn its credibility determinations.
Warrantless Seizure
¶ 17 Next, we address the seizure of the toy gun and clothing from Brown's vehicle. A warrantless search or seizure is presumptively unreasonable under the Fourth Amendment and Article I, Section 8, subject to a few specifically established, well-delineated exceptions. Commonwealth v. Dean, 940 A.2d 514, 519 (Pa. Super. 2008) (citing Horton v. California, 496 U.S. 128, 110 S.Ct. 1301 (1990)).
¶ 18 The Commonwealth argues that the seizure of the toy gun was valid under the "plain view" exception to the Fourth Amendment's warrant requirement. Brown argues that the plain view exception does not apply. Under the "plain view" exception, police may seize objects 1) that are viewed from a lawful vantage point, 2) where the incriminating nature of the object is immediately apparent to police, and 3) the police have a lawful right of access to the object. Commonwealth v. Wilson, 927 A.2d 279, 287 (Pa. Super. 2007); Commonwealth v. McCree, 592 Pa. 238, 255, 924 A.2d 621, 631 (2007) (plurality decision).
¶ 19 We note that the trial court, in its written opinion submitted to this Court pursuant to Pa.R.A.P. 1925(a), assessed the first two prongs of the "plain view" exception, finding that 1) the police viewed the toy gun from a lawful vantage point, and 2) that it was immediately apparent to them that the object was a gun. Trial Court Opinion, 12/30/08, at 9-10. However, it failed to evaluate whether the Commonwealth satisfied the third required element of the exception — namely, whether the officers had a lawful right of access to the object in question.
In its 1925(a) opinion, the trial court also cites to an incorrect two-part standard for the "plain view" exception, as set forth in Commonwealth v. Harris, 888 A.2d 862, 879 (Pa. Super. 2005). This two-part standard leaves out the "lawful right of access" requirement. Subsequently in McCree, our Supreme Court clarified that there were in fact three prongs to the "plain view" exception, and that under both the Fourth Amendment and Article I, § 8, this exception required a determination of whether the police had a lawful right of access to the object seen in plain view. McCree, 592 Pa. at 248-55, 924 A.2d at 627-31; accord Dean, 940 A.2d at 520.
¶ 20 The late Chief Justice Cappy elaborated upon this third prong of the "plain view" exception as follows:
This prong builds upon the concept that even though it is immediately apparent to police officers that they have contraband before them, and they viewed this evidence from a lawful vantage point, they are not authorized to seize the evidence. Rather, they must have some legal justification or lawful right of access to make the seizure.
McCree, 592 Pa. at 257, 924 A.2d at 633 (Cappy, C.J., concurring).
¶ 21 In McCree, a plurality of the Court concluded that the third element was satisfied by application of Pennsylvania's "limited automobile exception." Id. at 252, 630. Subsequently, in Commonwealth v. Hernandez, 594 Pa. 319, 935 A.2d 1275 (2007), a majority of the Supreme Court clarified that pursuant to the "limited automobile exception," warrantless vehicle searches and seizures may be justified only if based upon probable cause and the existence of "exigent circumstances beyond mere mobility." Writing for the Court, Justice Fitzgerald ruled as follows:
In McCree, our Supreme Court refused to adopt the federal "automobile exception" recognized by the United States Supreme Court under the Fourth Amendment. McCree, 592 Pa. at 252, 924 A.2d at 627-30; Commonwealth v. Holzer, 480 Pa. 93, 103-04, 389 A.2d 101, 106-07 (1978). Pursuant to the federal "automobile exception," due to the inherent mobility of an automobile, the Fourth Amendment does not prevent police from conducting a warrantless search of an automobile when probable cause exists, even if the vehicle has been seized and immobilized. See, e.g., Carroll v. United States, 267 U.S. 132, 147-56 (1925); Chambers v. Maroney, 399 U.S. 42, 51 (1970). The Supreme Court of Pennsylvania has consistently ruled that Article I, § 8 of the Pennsylvania Constitution provides greater protections than the Fourth Amendment to the United States Constitution.
Warrantless vehicle searches in this Commonwealth must be accompanied not only by probable cause, but also by exigent circumstances beyond mere mobility; `one without the other is insufficient.' This dual requirement of probable cause plus exigency is an established part of our state constitutional jurisprudence.
Id. at 328, 935 A.2d at 1280 (citations omitted). Accordingly, while McCree establishes that in Pennsylvania the third prong of the plain view exception may be satisfied by the limited automobile exception, Hernandez makes clear that the limited automobile exception requires a showing of exigent circumstances before police may claim a lawful right of access to the object in question.
We are cognizant that in Commonwealth v. Turner, 982 A.2d 90, 93-94 n. 4-5 (Pa. Super. 2009), this Court, without reference to Hernandez, ruled that the third prong of a plain view test was satisfied in the absence of any showing of exigent circumstances. In Turner, however, the sole issue appellant raised on appeal was whether or not the Commonwealth had satisfied the second prong of the test — whether "the incriminating nature" of the object seized (a shotgun shell on the front seat of his car) was "readily apparent" to the police officers in question. Id. at 91. Accordingly, the discussion of the third prong in that case was mere obiter dicta and therefore not binding on this panel. See, e.g., Commonwealth v. Olavage, 894 A.2d 808, 812 n. 1 (Pa. Super.), appeal denied, 589 Pa. 720, 907 A.2d 1102 (2006).
¶ 22 "Exigent circumstances arise where the need for prompt police action is imperative, either because evidence is likely to be destroyed, [. . .] or because there exists a threat of physical harm to police officers or other innocent individuals." Commonwealth v. Stewart, 740 A.2d 712, 717 (Pa Super. 1999), affirmed, 568 Pa. 499, 798 A.2d 697 (2002). The "limited automobile exception" cannot satisfy the third prong of the "plain view" doctrine in this case, as no exigent circumstances existed to permit Chief Zimath and Officers Schiazza and DeBella to search Brown's vehicle and seize the toy gun within without first obtaining a warrant.
¶ 23 At the time of the seizure, Brown had already been handcuffed and placed in the back of a police squad car. N.T., 7/18/07, at 23. As a result, he was clearly not in a position to grab or harm the officers with a weapon hidden inside his vehicle. Moreover, at the suppression hearings, none of the officers articulated any specific dangers Brown posed to them as he sat inside the patrol car. See Hernandez, 594 Pa. at 332, 935 A.2d at 1282 ("The fact that potential for danger to police or the public is enough to constitute exigent circumstances does not mean that a mere assertion of danger is sufficient. Rather, police must be able to articulate the danger posed under the specific circumstances of the case."). In the absence of any likelihood of danger that evidence might be destroyed or any threat of physical harm to police officers or other innocent individuals, no exigent circumstances existed in this case to excuse the officers' failure to obtain a warrant before seizing the toy gun.
Though not invoked by the Commonwealth, we also note that the search incident to arrest exception does not apply in this case. In Pennsylvania, a warrantless search of an automobile incident to an arrest is limited to areas immediately accessible to the person arrested, and the purpose of the search must be to prevent the arrestee from securing weapons or destroying contraband. See Commonwealth v. White, 543 Pa. 45, 55-57, 669 A.2d 896, 902 (1995) ("Merely arresting someone does not give police carte blanche to search any property belonging to the arrestee. Certainly, a police officer may search the arrestee's person and the area in which the person is detained in order to prevent the arrestee from obtaining weapons or destroying evidence, but otherwise, absent an exigency, the arrestee's privacy interests remain intact as against a warrantless search. In short, there is no justifiable search incident to arrest under the Pennsylvania Constitution save for the search of the person and the immediate area which the person occupies during his custody, as stated above . . ."); see also McCree, 592 Pa. at 259, 924 A.2d at 634 (Cappy, J., concurring) ("When a police officer makes an arrest, he or she may conduct `a search of an arrestee's person and the area within an arrestee's immediate control as a matter of course because of the ever-present risk in an arrest situation that an arrestee may seek to use a weapon or to conceal or destroy evidence.'") (quoting Commonwealth v. Timko, 491 Pa. 32, 417 A.2d 620, 622 (1980)).
As previously discussed, Brown was arrested and placed in the back of a police squad car by Officers Schiazza and DeBella. Accordingly, the toy gun was not in an area within Brown's immediate control or accessible to Brown, and there was no danger of him destroying or concealing the evidence.
¶ 24 For these reasons, we conclude that the trial court erred in denying Brown's suppression motion. We also conclude, however, that this error was harmless in this case. "An error is considered harmless when, in light of the overwhelming evidence of guilt, the error was so insignificant that it could not have contributed to the verdict." Commonwealth v. Reid, 571 Pa. 1, 34, 811 A.2d 530, 549 (2002) (quoting Commonwealth v. Rivera, 565 Pa. 289, 301, 773 A.2d 131, 138 (2001)).
¶ 25 A person is guilty of robbery if, in the course of committing a theft, he threatens another with or intentionally puts him in fear of immediate serious bodily injury. 18 Pa.C.S.A. § 3701(a)(ii). At trial, Golla testified that Brown entered the Exxon station, pointed a gun at her face, and threatened to kill her unless she gave him money. N.T., 3/19/08, at 159-61. She testified that Brown was wearing a black coat and bandanna and carrying a white plastic bag on the date of the incident. Id. at 162, 172. Shortly after the robbery occurred, Golla identified Brown, in person, as the man who committed the robbery. Id. at 168-69. In addition, she identified Brown twice at trial as the robber. Id. at 160, 187.
¶ 26 Chief Zimath providing corroborating testimony, testifying that Brown was wearing a black coat and hat on the day of the incident and had a white plastic bag protruding from his coat pocket before he entered the store. N.T., 3/20/08, at 14, 16. He also testified that he saw Brown enter the Exxon shortly before the robbery occurred, after observing him behaving suspiciously for several minutes, peeking around a dumpster at the gas station. Id. at 6-8. Chief Zimath testified that a minute later, Brown ran out of the gas station and was detained. Id. at 8. He, too, identified Brown at trial. Id. at 6-7. Even though admission of the toy gun and clothing inside Brown's vehicle should have been suppressed, we conclude that the error was harmless with respect to Brown's robbery conviction in light of the other overwhelming evidence of his guilt. See Reid, 571 Pa. at 34, 811 A.2d at 549.
¶ 27 Similarly, we conclude the admission of the evidence in question was harmless error with regard to Brown's aggravated assault conviction. A person is guilty of aggravated assault if he "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty." 18 Pa.C.S.A. § 2702(a)(3).
Section 2702(c) includes police officers. 18 Pa.C.S.A. § 2702 (c)(1).
¶ 28 At trial, Officer Schiazza testified that when he attempted to handcuff Brown, Brown pulled away, threw Officer DeBella to the ground, and ran away. N.T., 3/20/08, at 43. After being tackled by Officer Schiazza, Brown violently struggled with the officer and flailed his arms, striking the officer in the arm, shoulder and mouth and causing him to have a swollen lip. Id. at 44. Officer Schiazza identified Brown at trial. Id. at 42. The admission of the evidence found inside of Brown's vehicle, therefore, was not necessary to sustain the aggravated assault conviction.
¶ 29 Finally, with respect to Brown's PIC conviction, a person commits the offense of PIC when he "possesses any instrument of crime with intent to employ it criminally." 18 Pa.C.S.A. § 907(a). Golla testified at trial that Brown pulled a gun out of a brown plastic bag and pointed it at her face. N.T., 3/19/08, at 159-61. This testimony is sufficient to establish Brown's possession of an instrument of crime with the intention of using it criminally. See, e.g., Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006), appeal denied, 591 Pa. 670, 916 A.2d 1101 (2007). Accordingly, sufficient evidence exists in the record to support Brown's PIC conviction even without the introduction of the toy gun improperly seized from his vehicle.
¶ 30 In sum, we affirm Brown's convictions for robbery, aggravated assault, and PIC even though we conclude that the trial court erred in denying Brown's suppression motion. See Commonwealth v. Hernandez, 886 A.2d 231, 240 (Pa. Super. 2005) (citing Commonwealth v. Beck, 848 A.2d 987 (Pa. Super. 2004) (stating appellate court may affirm order of trial court on any basis if decision is correct); Commonwealth v. O'Brian, 811 A.2d 1068 (Pa. Super. 2002) (stating where trial court has reached correct result, its order will be sustained if it can be sustained for any reason)).
Weight of the Evidence
¶ 31 Brown next claims that the verdict was against the weight of the evidence because Golla's testimony at trial was inconsistent and her identification of him tainted and unreliable. Appellant's Brief at 14. In support of his argument, Brown raises, inter alia, the fact that Golla only saw the robber for a few seconds; that there was no description given to police prior to Brown being brought to Golla for her to identify; that Brown was identified by Golla while surrounded by police; Golla's mental distress at the time of the identification; and a statement she allegedly made at Brown's preliminary hearing that Brown was not the man she had previously identified. Id. at 14-15.
¶ 32 "For this Court to reverse the jury's verdict on weight of the evidence grounds, we must determine that the verdict is so contrary to the evidence as to `shock one's sense of justice.'" Commonwealth v. Johnson, 910 A.2d 60, 64 (Pa. Super. 2006), appeal denied, 600 Pa. 774, 968 A.2d 1280 (2009) (citing Commonwealth v. Spotz, 552 Pa. 499, 507, 716 A.2d 580, 583 (1998), cert. denied, 526 U.S. 1070, 119 S.Ct. 1466 (1999); Commonwealth v. Lloyd, 878 A.2d 867, 872 (Pa. Super. 2005), appeal denied, 585 Pa. 687, 887 A.2d 1240 (2005)).
Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Id. (quoting Commonwealth v. Widmer, 560 Pa. 308, 321-22, 744 A.2d 745, 753 (2000)).
¶ 33 "In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable." Commonwealth v. Moye, 836 A.2d 973, 976 (Pa. Super. 2003), appeal denied, 578 Pa. 694, 851 A.2d 142 (2004) (quoting McElrath v. Commonwealth, 592 A.2d 740, 742 (Pa. Super. 1991). The purpose of a "one on one" identification is to enhance reliability by reducing the time elapsed after the commission of the crime. Id. "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." Id. (quoting McElrath, 592 A.2d at 742).
¶ 34 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." Id. (quoting McElrath, 592 A.2d at 743). The corrupting effect of the suggestive identification, if any, must be weighed against these factors. Id. 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. Id.
¶ 35 In its opinion submitted pursuant to Pa.R.A.P. 1925(a), the trial court stated that the totality of circumstances surrounding Golla's identification of Brown, including the promptness with which it was made, indicated that the identification was reliable:
In the case at bar, the victim testified that she first noticed [Brown] while waiting on two other customers who were getting tea. She told the jury that, `At that time a black man entered the store. He stood near the MAC machine.' After the two customers left, [Golla] stated `he asked me to show him where the sunflower seeds were.['] He said, `I can't see them.' According to the victim[,] [Brown] `pulled a plastic bag with a gun inside and another plastic bag and told me to give me the money, give me the money.' [Brown] pointed the gun at her head and said one time `kill you.' She testified that [Brown] was wearing a black jacket and a black bandana on his head, but that he had nothing on his face at the time he pointed the gun at her. [Golla] told the jury that she was shocked and scared, but maintained steadfastly at trial that [Brown] was the robber.
Further, her testimony about the robbery and her description of the assailant, even to the detail about the presence of the plastic bag, was corroborated by that of Chief Zimath, who made independent observations as he watched from his vantage point outside the store. Under the totality of the circumstances, [Brown's] actions, his dress, the sequence of events throughout the incident, the circumstances under which the victim viewed [Brown] during the robbery, and her first identification all support the reliability of identification.
Trial Court Opinion, 12/30/08, at 6-7 (record citations omitted).
¶ 36 After reviewing the certified record, we agree. Golla provided detailed observations of Brown's appearance which were corroborated by Chief Zimath's testimony. N.T., 3/10/08, at 159-62, 172. She also testified that Brown was a mere six to 12 inches from her when she saw his face, and identified him in person as the robber shortly after the robbery occurred. Id. at 168-69, 186-87. The jury, as fact-finder, heard Golla's testimony as to the circumstances of the robbery and found Golla's identification reliable, and we conclude that its verdict does not shock our conscience.
¶ 37 We also note that this Court has upheld in-person identifications conducted under similar conditions as the one in this case. See Moye, 836 A.2d at 977 (defendant identified while seated inside of a police van); Commonwealth v. Allen, 429 A.2d 1113, 1120-21 (Pa. Super. 1981) (defendants identified while handcuffed and seated in the back of a police van, with three police vehicles at the scene). Finally, our review of the preliminary hearing transcript indicates that Golla clearly identified Brown at such hearing. N.T., 8/11/06, at 18-19. Therefore, we also find no merit to Brown's argument that Golla was unable to identify him at his preliminary hearing.
Sufficiency of the Evidence
¶ 38 Finally, Brown challenges the sufficiency of the evidence to support his convictions for aggravated assault and PIC. Appellant's Brief at 16-18.
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Hutchinson, 947 A.2d 800, 805-06 (Pa. Super. 2008), appeal denied, 2009 WL 2947378 (2009) (quoting Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006)) (emphasis omitted).
Aggravated Assault
¶ 39 As stated previously, a person is guilty of aggravated assault if he "attempts to cause or intentionally, knowingly or recklessly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty." 18 Pa.C.S.A. § 2702(a)(3).
¶ 40 Brown contends that he did not intentionally cause bodily injury to Officer Schiazza; that he only came into contact with the officer while trying to avoid being handcuffed as part of an allegedly illegal arrest, and that his intent was not to be handcuffed, not to injure anyone. Appellant's Brief at 17-18. He additionally alleges that Officer Schiazza did not suffer any lacerations or bleeding, did not receive medical treatment, and that there were no photos of his swollen lip offered into evidence at trial. Id.
¶ 41 We conclude that the evidence sufficiently demonstrated that Brown intentionally caused bodily injury to Officer Schiazza, as he violently struggled with the officer and struck the officer in the arms, shoulder and mouth multiple times, causing him to have a swollen lip. The officer was in full uniform at the time, and there was no question that he was a police officer. N.T., 3/20/08, at 5, 41. See Commonwealth v. Biagini, 540 Pa. 22, 35, 655 A.2d 492, 498-99 (1995) (evidence sufficient to support conviction under 18 Pa.C.S.A. § 2702(a)(3) where appellant pushed police officer into a parked car while officer was chasing and attempting to apprehend him).
PIC
¶ 42 A person commits the offense of PIC when he "possesses any instrument of crime with intent to employ it criminally." 18 Pa.C.S.A. § 907(a). An instrument of crime is defined as (1) anything specially made or specially adapted for criminal use, or (2) anything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have. 18 Pa.C.S.A. § 907(d).
¶ 43 Although the gun that Brown pointed at Golla turned out to be a toy, it clearly constituted an "instrument of crime" under the above definition. The tape on its barrel and the colorings with a black magic marker evidence that it had been "specially adapted for criminal use." And the lawful uses of a toy gun do not include utilizing it in a robbery (particularly where it is obviously used to convey the impression that it is a real gun). Moreover, Golla's testimony that Brown pointed the gun at her face and demanded money is sufficient to establish that Brown possessed the instrument of crime for the purpose of employing it criminally. See, e.g., Commonwealth v. Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006), appeal denied, 591 Pa. 670, 916 A.2d 1101 (2007) (testimony that defendant was the "gun-toting assailant" sufficient to support PIC conviction).
¶ 44 Judgment of sentence affirmed.
¶ 45 Gantman, J. concurs in the result.