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[U] Commonwealth v. McCollum

Superior Court of Pennsylvania

February 19, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
STEVEN RICHARD McCOLLUM, JR., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence December 10, 2012, Court of Common Pleas, Dauphin County, Criminal Division at No. CP-22-CR-0005177-2011.

BEFORE: DONOHUE, OTT and PLATT [*] , JJ.

MEMORANDUM

DONOHUE, J.

Steven Richard McCollum Jr. ("McCollum") appeals from the judgment of sentence for attempted murder[1], aggravated assault[2], persons not to possess a firearm[3], and carrying a firearm without a license.[4] We affirm.

The facts underlying this appeal may be summarized as follows. In the early morning of October 9, 2011, Timothy Juett ("Juett") suffered a gunshot wound to the back following an altercation over a parking space. At approximately 2:39 a.m., Officer Nathan Ishman ("Officer Ishman") of the Harrisburg Police Department received a dispatch of shots fired in the area of 135 North Summit Street. Officer Ishman arrived on the scene approximately three minutes later and discovered the victim on 13th and State Street. Shortly thereafter, Hany Ahmed ("Ahmed"), a friend of the victim and witness to the incident, arrived and provided Officer Ishman with information regarding the appearance of the suspect and his vehicle. Officer Ishman put out information over the radio that the suspect was driving a white Cadillac with a blue ragtop and a license plate beginning with "J-M-R".

While en route to the scene of the shooting, Officer Mike Rudy ("Officer Rudy") of the Harrisburg Police Department observed a white Cadillac with a blue ragtop and a license plate beginning with "H-M-R" driving on the 100 block of Summit Street. Because the vehicle matched the description of the suspect vehicle, Officer Rudy followed the vehicle in his police cruiser but did not activate his lights. After approximately three blocks, the vehicle slowed down, both of its front doors opened, and its occupants attempted to flee. Officer Rudy then activated his emergency equipment. The vehicle then pulled over to the side of the road and struck a parked car. The driver fled the vehicle and dropped something on the ground as he ran. Officer Rudy then arrested the driver as he attempted to re-enter the vehicle. Once the driver of the vehicle and the remaining passengers were detained, Officer Rudy discovered a handgun in the area where he observed the driver drop something.

Once the passengers of the vehicle were detained, Officer Ishman drove Ahmed to see if he could identify any of the individuals as the shooter. With each individual handcuffed and seated on the curb, the police stood each man up individually while Ahmed observed from Officer Ishman's police cruiser. Ahmed then identified the driver of the vehicle, McCollum, as the person responsible for shooting Juett.

Prior to trial, McCollum filed a motion to suppress the evidence obtained pursuant to the traffic stop and Ahmed's identification as of him as the shooter. Following a suppression hearing on October 2, 2012, the motion was denied. On December 18, 2012, following a jury trial, McCollum was convicted of the aforementioned crimes and sentenced to 20-40 years of incarceration. This timely appeal followed, in which McCollum raises the following issues for our review:

1. Whether the suppression court erred in denying [McCollum's] motion to suppress evidence where police did not possess reasonable suspicion or probable cause to initiate a traffic stop?
2. Whether the suppression court erred in denying [McCollum's] motion to suppress Hany Ahmed's pretrial identification of [McCollum] where [McCollum] was in custody and such identification was overly suggestive so as to give rise to a substantial likelihood of irreparable misidentification?
3. Whether the suppression court erred in denying [McCollum's] motion to suppress Hany Ahmed's in-court identification of [McCollum] where the Commonwealth failed to establish by clear and convincing evidence that the identification had an independent origin sufficiently distinguishable from the illegal pre-trial identification so as to be purged of the primary taint?
4. Whether the trial court erred in sentencing [McCollum] to twenty (20) to forty (40) years in prison where [McCollum's] sentence was excessive and unreasonable and where the trial court failed to take into consideration [McCollum's] rehabilitative needs when fashioning a sentence, focusing solely on the seriousness of the offense?
5. Whether the trial court erred in denying [McCollum's] post-sentence motions where the jury's verdict was against the weight of the evidence so as to shock one's sense of justice where the testimony from the Commonwealth's witness was inconsistent, unreliable and conflicting, and where [McCollum] did not match the description of the shooter?

Appellant's Brief at 9-10.

First, McCollum challenges the trial court's denial of his suppression motion. In reviewing denial of a suppression motion, our review is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. Commonwealth v. Williams, 73 A.3d 609, 613 (Pa.Super. 2013) (citation omitted). Additionally, since the Commonwealth prevailed in 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. Id. We may reverse only if the legal conclusions drawn therefrom are in error. Id.

McCollum contends that the trial court should have suppressed evidence recovered from him as a result of the detention conducted by Officer Rudy, which he argues was unsupported by reasonable suspicion. Appellant's Brief at 35. "Initially, we observe that the forcible stop of a vehicle constitutes an investigative detention such that there must be reasonable suspicion that illegal activity is occurring." Commonwealth v. Washington, 63 A.3d 797, 802 (Pa.Super. 2013). Furthermore, "[p]olice are justified in stopping a vehicle when relying on information transmitted by a valid police bulletin." Id. This Court has defined "reasonable suspicion" as follows:

Reasonable suspicion is a less stringent standard than probable cause necessary to effectuate a warrantless arrest, and depends on the information possessed by police and its degree of reliability in the totality of the circumstances. In order to justify the seizure, a police officer must be able to point to specific and articulable facts leading him to suspect criminal activity is afoot. In assessing the totality of the circumstances, courts must also afford due weight to the specific reasonable inferences drawn from the facts in light of the officer's experience and acknowledge that innocent facts, when considered collectively, may permit the investigative detention.

Id. at 802-03. In determining the sufficiency of the information provided, the informer's "reliability, veracity, and basis of knowledge are all relevant factors." Id. Identified citizens who report their observations of criminal activity to the police are assumed to be trustworthy. Commonwealth v. Barber, 889 A.2d 587, 593 (Pa.Super. 2005) (citations omitted).

At the suppression hearing, Officer Rudy testified that within minutes of the shooting, he received a radio dispatch stating that the suspect fled the scene in a white Cadillac with a blue ragtop and a license plate beginning with "J-M-R". N.T., 10/02/2012, at 4-7. Upon observing a car that matched the physical description with a license plate beginning "H-M-R" within blocks of the scene of the shooting, Officer Rudy proceeded to follow the vehicle for several blocks. Id. at 7-8. As he followed the car, Officer Rudy observed the passengers attempting to flee from the car while it was still in motion. Id. at 9. It was at this point that Officer Rudy activated his lights to stop the vehicle. Id. 9-10. Given the totality of these facts and circumstances, we find no error with the trial court's conclusion that Officer Rudy had reasonable suspicion to suspect that criminal activity was afoot, and therefore that his stop of McCollum's vehicle was constitutional.

In support of his conclusion, McCollum focuses on the information provided to the police by Ahmed regarding the vehicle he observed leaving the scene of the crime and cites Commonwealth v. Jones, 845 A.2d 821 (Pa.Super. 2004). In Jones, an unidentified person "called in a complaint that a burgundy Chevrolet with [a specific] license plate was involved in drug activity[.]" Id. at 822. A police officer proceeded to the location indicated in the radio bulletin and immediately pulled over a vehicle matching this description. We held that the information provided by the caller was insufficient to serve as the basis for reasonable suspicion where the officer did not observe any conduct by the defendant that would corroborate the tip provided to dispatcher, despite the fact that the vehicle description and license plate matched. Id. at 825. McCollum argues that Officer Rudy similarly lacked reasonable suspicion, as he was provided with less specific information than the officer in Jones. Appellant's Brief at 44. We find McCollum's case to be more analogous to the scenario we addressed in Commonwealth v. Barber, 889 A.2d 587 (Pa.Super. 2005). In Barber, we found that reasonable suspicion existed where an identified source gave the police a specific description of the vehicle, driver and activity at issue. Barber, 889 A.2d at 594-95. We distinguished Barber from Jones on the basis that the informant in Jones did not provide a detailed explanation of the suspect and only vaguely described the conduct as "drug activity." Id. at 595-96. In the case sub judice, the facts are more aligned with Barber because Ahmed provided the police with specific information describing the vehicle and suspect and gave a detailed account of the criminal activity, which he had ample opportunity to observe. Furthermore, unlike Jones where the officer did not observe any suspicious activity prior to initiating the stop, Officer Rudy initiated the stop only after he observed both front doors of the vehicle open while the car was in motion in what appeared to be an attempt to flee the vehicle. Accordingly, McCollum's first claim fails.

Next, we consider McCollum's claim that the trial court erred in failing to suppress Ahmed's pretrial identification because the identification procedure was overly suggestive. Appellant's Brief at 48.

In reviewing identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable. Commonwealth v. Brown, 23 A.3d 544, 558 (Pa.Super. 2011) (citations omitted). Suggestiveness in the identification process is merely one factor in determining the admissibility of the evidence and exclusion is not warranted absent additional factors. Id. Those factors include: (1) the opportunity of the witness to view the perpetrator at the time of the crime, (2) the witness' degree of attention, (3) the accuracy of his prior description, (4) the level of certainty demonstrated at the confrontation, and (4) the time between the crime and the confrontation. Id. The corrupting impact of a suggestive identification must be weighed against these factors. Id. A prompt one-on-one identification is not so suggestive as to give rise to an irreparable likelihood of misidentification absent "some special element of unfairness." Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.Super. 2003) (citation omitted) (finding that the identification procedure was not so suggestive as to give rise to an irreparable likelihood of misidentification where the defendant was the only individual in a police van and was in handcuffs).

Despite McCollum's argument to the contrary, we conclude that the identification procedure utilized by the police was not improperly suggestive, and that there was no "special element of unfairness" that would render the identification unreliable. Officer Ishman testified that he took Ahmed to view the suspects shortly after Ahmed observed the shooting. N.T., 10/02/2012, at 27-28. While still in Officer Ishman's police cruiser, Ahmed had an opportunity to observe each passenger one-by-one to see if he could identify the shooter. Id. at 29-30. Upon seeing McCollum, Ahmed immediately identified him as the shooter and was certain that he was correctly identifying him. Id. at 30-32, 49. Additionally, Ahmed had an opportunity to view the shooter's uncovered face in good lighting only a few feet away as shooting took place. Id. at 42-46. Based upon the totality of these facts and circumstances, we conclude that the identification procedure was not unduly suggestive and that Ahmed's identification of McCollum as the shooter was reliable.

McCollum points to the 1969 case of Commonwealth v. Lee, 257 A.2d 326 (Pa.Super. 1969), wherein this Court found an identification procedure so impermissibly suggestive as to violate due process, in support of his position. In Lee, after a robbery victim was initially unable to positively identify anyone out of a five-person lineup, the police showed the victim the car the five individuals were arrested in. Id. at 328. After identifying the car, the victim returned to the lineup and identified the defendant as one of the individuals who committed the robbery. Id. McCollum's reliance on Lee is misplaced. In Lee, the lineup took place three hours after the robbery, the victim was unable to initially identify anyone in the lineup as a participant in the robbery, and the victim identified the defendant only after viewing the car, which he recognized as belonging to the robbers. Id. at 327-28. Alternatively, in the present case, Ahmed viewed the suspects shortly after the shooting, he immediately identified McCollum as the shooter, and he expressed certainty that he was correctly identifying the shooter. Ahmed had ample opportunity to view McCollum during the shooting, as he was paying close attention to the events as they unfolded, and his description of the defendant's physical appearance was accurate. We therefore find no merit to McCollum's argument.

McCollum next challenges Ahmed's in-court identification of him as the shooter. McCollum argues that pursuant to Commonwealth v. Williams, 470 A.2d 1376, 1383 (Pa.Super. 1984), the trial court should have suppressed the in-court identification because the pre-trial identification was overly suggestive and the Commonwealth failed to establish an independent origin for the in-court identification sufficiently distinguishable from the illegal pre-trial identification. Appellant's Brief at 57. However, as discussed above, we conclude that the pre-trial identification used here was not overly suggestive. Therefore, McCollum's claim fails on its premise.

In his next issue, McCollum argues that his sentence of 20 to 40 years of incarceration was excessive and unreasonable. This is a challenge to the discretionary aspects of his sentence. "Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right." Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa.Super. 2011) (citation omitted).

An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006).

Id.

The record reveals that McCollum's notice of appeal was timely filed and that he filed a post-sentence motion challenging his sentence as excessive. McCollum's brief contains a statement of the reasons relied upon for allowance of appeal as required by Pa.R.A.P. 2119(f), and so we consider whether he has presented a substantial question for our review.

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.

Commonwealth v. Glass, 50 A.3d 720, 727 (Pa.Super. 2012). In his Rule 2119(f) statement, McCollum claims that the trial court failed to consider his rehabilitative needs and placed "improper emphasis" on the severity of the offense and McCollum's history of violence and possession of firearms. Appellant's Brief at 34. This assertion presents an allegation that the sentence violates fundamental norms underlying the sentencing process; therefore, it presents a substantial question so as to invoke our review. See 42 Pa.C.S.A. § 9721(b) ("[T]he [sentencing] court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant[.]").

Our standard of review for sentencing claims is as follows:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. An abuse of discretion is more than just an error in judgment and, on appeal, the trial court will not be found to have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will. More specifically, 42 Pa.C.S.A. § 9721(b) offers the following guidance to the trial court's sentencing determination: '[T]he sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.' 42 Pa.C.S.A. § 9721(b). Thus, under 42 Pa.C.S.A. § 9721(b), a sentencing court must formulate a sentence individualized to that particular case and that particular defendant.

Commonwealth v. Clarke, 70 A.3d 1281, 1287 (Pa.Super. 2013)(internal citations omitted).

The record reveals that the trial court considered the statutorily-mandated factors and explained its reasoning for the sentence at the sentencing proceeding. In imposing sentence, the trial court stated as follows:

I read the Commonwealth and the defense sentencing memorandums. I've listened carefully to both of the arguments. I read the presentence report. In sentencing, I'm considering the three factors that I should: The protection of the public, gravity of the offense, and the rehabilitative needs of the defendant.
Protection of the public, this was a senseless shooting. One wants to believe that there was more involved, that it was a drug deal gone bad or some argument that went back and forth for a week. But it wasn't. It was merely shooting someone over a parking spot. And with respect to protecting the public, if this was some type of like drug deal, you could believe that maybe it wouldn't occur to other people. But with this type of senseless shooting, I think the public is at risk going forward.
The gravity of the offense, attempted murder, Mr. Juett is lucky to be alive. He was shot in the back at close range. And he could easily have been dead. Ms. Jackson, his family, sister, indicated his [sic] brother couldn't be here today. Well, he's very lucky that he's not dead, because that was the intent of your shooting, shooting close range at the back, to kill him. And if so, there's no doubt a jury would have convicted you of first degree murder and you'd be spending the rest of your life in prison. Also, considering your rehabilitative needs, I'm looking at some prior convictions involving violence and guns. So I considered all of that.

N.T., 12/10/13, at 23-24.

As the trial court considered the factors it was bound to consider and imposed a sentence individualized to McCollum and the crime he committed, we can find no abuse of discretion.

McCollum argues that the trial court erred by taking into consideration the gravity of McCollum's offense. Appellant's Brief at 60-61. The true thrust of this argument, however, is McCollum's disagreement with the trial court's determination that this was a particularly egregious crime. See id.[5]We find no merit to this claim. As stated above, the trial court found that the circumstances surrounding the shooting were particularly egregious, in that McCollum escalated an isolated encounter about a parking spot to shooting his victim, who was unknown to McCollum before the incident, in the back. McCollum has provided us with no authority that would support the proposition that the trial court may not consider the circumstances surrounding the commission of the crime in fashioning the sentence. Indeed, 42 Pa.C.S.A. § 9721(b) explicitly provides otherwise, as it requires that the trial court consider the gravity of the offense and the needs for the protection of the public, both of which may be determined, at least in part, by consideration of the circumstances surrounding the crime.

McCollum also argues that the trial court failed to consider his rehabilitative needs adequately. Id. at 62. The record belies this claim. As set forth above, the trial court did consider McCollum's rehabilitative needs, but rejected the notion that he could benefit from rehabilitative efforts as the present crime, and many of McCollum's prior crimes and delinquent acts, involved acts of violence, often with firearms. Although stated in a somewhat terse manner at the time of sentencing, we conclude that the trial court fulfilled its statutory duty and adequately considered McCollum's rehabilitative needs.

Finally, McCollum argues that the verdicts were against the weight of the evidence. Appellant's Brief at 63.

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.
This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained[, ] [t]he term 'discretion' imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.

Commonwealth v. Clay, ___ Pa. ___, ___, 64 A.3d 1049, 1055 (2013) (emphasis in the original) (citations omitted).

Accordingly, we are mindful that as we review McCollum's claim, we are not passing on the underlying question of whether the verdicts were against the weight of the evidence, but rather we are considering whether the trial court abused its discretion in denying his motion for a new trial based upon his claim that the verdict was against the weight of the evidence. We are focused, therefore, on evidence that the trial court's ruling is "manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will." Id.

McCollum fails to appreciate the standard and scope of our review. He frames his argument in terms of the jury's failure to make certain findings, and does not present any argument as to how he believes the trial court abused its discretion in denying his post-sentence motion. He only points to what he calls inconsistencies and conflicts in the testimony of certain Commonwealth witnesses, and assails the jury's fact finding. Appellant's Brief at 64-70. McCollum directs his entire argument to the underlying question of whether his convictions are against the weight of the evidence. As stated above, this is not the question before us for review.

McCollum has failed to provide us with relevant argument relative to our standard of review, and this Court will not develop an argument on his behalf. See Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.Super. 2006). In addition, however, our independent review of the record provides us with ample support for the conclusion that the trial court did not abuse its discretion in deciding that the verdicts in this case were not against the weight of the evidence. We therefore find no merit to McCollum's claim.

Judgment of sentence affirmed.

Judgment Entered.


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