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Commonwealth of Pennsylvania v. andre Phillips

October 28, 2011

COMMONWEALTH OF PENNSYLVANIA,
APPELLEE
v.
ANDRE PHILLIPS, APPELLANT



Appeal from the PCRA Order Entered November 30, 2010, Court of Common Pleas, Philadelphia County, Criminal Division, at No. CP-51-CR-0800571-2005.

The opinion of the court was delivered by: Shogan, J.:

J-S44026-11

BEFORE: STEVENS, P.J., SHOGAN and MUNDY, JJ.

OPINION BY SHOGAN, J.:

Appellant, Andre Phillips, appeals from the order denying his petition for relief filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

The trial court summarized the facts of this case as follows:

On July 19, 2005 Complainant Hyung Tyler Kang was returning to his home near 47th and Pine Streets, Philadelphia, PA when he was approached by an unknown male riding a bicycle who stopped and asked Kang for directions. N.T. 5/12/2006 @ 41. Soon thereafter a second male appeared, pointed a gun at Complainant, and ordered him to empty his pockets. Id. at 41-42. The Complainant complied, giving the assailants his wallet, his cell phone, and a DVD. Kang was then ordered to continue walking and when he arrived home he immediately called police. Id.

Philadelphia Police Officer James DeAngelo responded to the call and obtained information pertaining to the crime from Complainant Kang. Complainant described the perpetrators as African-American males, approximately 18-20 years of age, one wearing a white baseball jersey and a hat, the other wearing a hat, and both riding BMX style bicycles. Kang also described the gun used during the robbery and the items that were taken. DeAngelo relayed this information to police radio dispatch and he and the Complainant began surveilling the area. Id. at 42-43, N.T. 5/15/2006 at 6-8.

Officers Gregory Speck and Joseph Sees were patrolling in the vicinity of the robbery when they received the information relayed by Officer DeAngelo and observed the Appellant and his co-defendant, Kareem Somerville, riding BMX bicycles exiting a park near the scene of the robbery. N.T. 5/15/2006 at 42. Speck testified that Appellant was wearing a white stripped [sic] baseball type jersey and carrying a backpack. Id. Speck and Sees followed the suspects in an unmarked police vehicle and radioed DeAngelo for additional information. Id. While the officers followed, Appellant began looking over his shoulder and the two suspects picked[-up] the rate of speed of their travel. Id. Appellant then shifted the backpack he was carrying from his right shoulder, positioned it on the bicycle in front of him, and then he tossed the backpack underneath a parked car. Id. @ 44-45. Speck and Sees stopped and exited their vehicle, identified themselves as police officers, and arrested Appellant and his co-defendant. Id. at 45. Police Officer Lloyd Keller arrived soon thereafter and frisked Somerville finding him in possession of a loaded 380 caliber handgun with serial numbers filed off containing five live rounds of ammunition in the handgun, and with one round in the chamber. Id. at 57, 59, 116-117. Contemporaneously, Officer Speck retrieved the backpack Appellant tossed and found Complainant's DVD and a wallet which contained Complainant's credit cards and his photo Pennsylvania Drivers License. Id. at 49-50, 56-57, 70.

A stipulation was entered as to Appellant's reputation for peaceful and law-abiding character. It was also stipulated Somerville was not licensed to carry a firearm. Id. at 126.

Trial Court Opinion, 2/1/07, at 2-3 (footnote omitted).

On July 19, 2005, Appellant was arrested and charged with Robbery, Possessing Instruments of Crime, Criminal Conspiracy and related offenses. On May 15, 2006, at the conclusion of a jury trial, Appellant was convicted of the crimes stated above. On July 12, 2006, the trial court sentenced Appellant to concurrent terms of incarceration of seven and one-half to fifteen years for Robbery and Conspiracy, and two and one-half to five years for Possessing Instruments of Crime.

On March 8, 2008, a panel of this Court affirmed Appellant's judgment of sentence on direct appeal and remanded the case to the trial court for resentencing, in order to correct the trial court's application of the weapons enhancement of the sentencing guidelines. Commonwealth v. Phillips, 946 A.2d 103 (2008). On January 21, 2009, the Pennsylvania Supreme Court denied Appellant's petition for allowance of appeal. Commonwealth v. Phillips, 600 Pa. 745, 964 A.2d 895 (2009).

On March 13, 2009, the trial court resentenced Appellant to an aggregate term of incarceration of seven and one-half to fifteen years. Appellant did ...


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