J-S83011-17

                                   2018 Pa. Super. 178

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    NIYAZZ MILBURN,                            :
                                               :   No. 3031 EDA 2016
                       Appellant

            Appeal from the Judgment of Sentence August 26, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005202-2015


BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

OPINION BY DUBOW, J.:                                      FILED JUNE 22, 2018

       Appellant, Niyazz Milburn, appeals from the Judgment of Sentence of

7½ to 20 years’ incarceration following his jury conviction of Robbery,

Firearms Not to be Carried Without a License, Carrying a Firearm in Public in

Philadelphia, and Possession of an Instrument of Crime (“PIC”).1 Appellant

challenges the denial of his Motion to Suppress Identification and Physical

Evidence. After careful review, we affirm.

BACKGROUND

       The relevant facts, as gleaned from the certified record, are as follows.

On May 4, 2015 at 11:50 PM, Appellant robbed Joseph Spearman

(“Spearman”) at gunpoint on North Broad Street in Philadelphia, stealing

Spearman’s iPhone 6 and backpack containing clothing and medication. This

____________________________________________


118 Pa.C.S. § 3701(a)(1); 18 Pa.C.S. § 6106(a); 18 Pa.C.S. § 6108; and 18
Pa.C.S. § 907(a), respectively.
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incident occurred under a streetlight approximately five feet away from

Spearman, and, thus, Spearman was able to view Appellant’s face and his gun

clearly. After the robbery, Appellant instructed Spearman to walk away, which

he did, turning once to see Appellant with another man, later identified as

Ronald Lyles. Spearman “was fairly sure”2 Appellant and Lyles left the scene

in a vehicle.

        Spearman immediately called 9-1-1, giving the dispatcher a description

of the assailant as African American, with a muscular build, medium

complexion, and facial hair, and noted that he was wearing black jeans or

sweat pants and a gray hoodie sweatshirt. When Philadelphia Police Officers

Michael James and Edward Taylor responded to the 9-1-1 call, Spearman

explained to Officer James that he had just been robbed by two black males,

one of whom had a gun, and that Appellant had taken his iPhone 6, and his

backpack, which contained Spearman’s work uniform, other clothing,

headphones, and medication.

        Officers James and Taylor commenced surveying the neighborhood

accompanied by Spearman in the police car. Utilizing the “Find My iPhone”

application (“App”) on Officer James’s personal iPhone, Officer James and

Spearman attempted to locate Spearman’s iPhone.3 However, the App was

____________________________________________


2   N.T., 6/13/16, at 34.

3 “Find My iPhone” is a pre-installed App that utilizes cellphone tower and
satellite technology to show the location of a particular iPhone when that



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not able to locate the phone at that time. After coming upon a male on a

bicycle who was wearing black jeans similar to the assailant’s, the officers

stopped the bicyclist, but Spearman indicated that the man was not the person

who robbed him. The officers ceased questioning the bicyclist and continued

patrolling.

       Officer James again attempted to locate Spearman’s iPhone 6 using his

own phone’s “Find My iPhone” App.              This time Officer James received a

notification from the App indicating that Spearman’s phone was in the area of

5th Street and Erie Avenue in Philadelphia. After relaying the information over

the police radio, Officer James proceeded to 5th Street and Erie Avenue.

Located at that intersection is a Sunoco gas station and an A-Plus Mini Market.

Upon arrival about 30 seconds after receiving the App notification, the officers

saw a van driving northbound through the gas station parking lot.          Police

searched for, but did not see, any individuals on foot and did not see anyone

inside the A-Plus Market other than the cashier.

       As the van exited the lot, it turned onto Erie Avenue, nearly hitting a car

traveling westbound. The police officers then followed the van as it proceeded

westbound for approximately 100 feet before turning right onto the 3700 block

of Randolph Street. As the van turned, it rode up on the curb and nearly hit

____________________________________________


phone is powered on. See In re Smartphone Geolocation Data
Application, 977 F. Supp. 2d 129, 137-38 (E.D.N.Y. 2013) (detailing
geolocation technology). The owner of the lost iPhone enters his or her “Apple
ID” and password into the searching phone.



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a street sign. Suspecting that the driver was not paying attention to the road

or was “nervous,”4 Officer James then activated the police car’s lights and

sirens to pull the vehicle over. The van travelled another 20 to 30 feet before

stopping. Only about one minute had elapsed between the time Officer James

received the iPhone app notification and when he stopped the van.

        Officers James and Taylor parked their vehicle behind the van and

approached with their guns drawn, while Spearman remained inside the police

car. The van’s mini-blinds were drawn on all of the windows, except the

driver’s side and passenger’s side front windows. Officer James instructed the

driver and the individual in the front passenger seat to place their hands on

the steering wheel and dashboard. The driver complied, but the passenger,

later identified as Appellant, did not. After Officer Taylor observed Appellant

place a small semiautomatic handgun under his seat, he removed Appellant

from the vehicle, retrieved the handgun, and placed Appellant in handcuffs.

At this point, Appellant was the only person the officers had removed from the

car.     Inside the vehicle in plain view, Officer Taylor saw a backpack,

medication, clothing, and three additional occupants. Back-up police officers

then arrived on the scene.

        As the officers walked Appellant toward the back of the van, Spearman

began jumping in his seat in the police car, pointing at Appellant, and nodding

his head to indicate that he recognized Appellant as the perpetrator. Officer

____________________________________________


4   N.T., 6/13/16, at 58.

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James then spoke with Spearman who emphatically confirmed that Appellant

was the assailant who had robbed him.              Spearman also identified the

backpack, medication, and clothing found in the van as his personal

belongings.

        Officer James recovered an iPhone 6 from Appellant’s pocket, which

Appellant stated he had just purchased from someone for $10. Spearman,

however, identified the phone as belonging to him, and he successfully

unlocked the phone with his passcode. Officer James observed a photo of

Spearman on the phone’s home screen. Officer James then placed Appellant

in another police vehicle.

        Officers James and Taylor continued to remove the three remaining

occupants from the vehicle.         Spearman positively identified Ronald Lyles, a

back-seat passenger, as the second assailant.5 Spearman indicated that the

other two occupants were not involved in the robbery.             Spearman also

indicated that an onlooker at the scene of the traffic stop was not involved in

the crime.

        Detectives later obtained a search warrant for the van. Upon executing

the warrant, detectives found Spearman’s work uniform and name tag.

        The Commonwealth charged Appellant with the above crimes.6

____________________________________________


5   Ronald Lyles is Appellant’s co-defendant, but is not a party to this appeal.

6 The Commonwealth also charged Appellant with Conspiracy to Commit
Robbery, Theft by Unlawful Taking, Receiving Stolen Property, Simple Assault,



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SUPPRESSION HEARING

       On February 21, 2016, Appellant filed an Omnibus Pretrial Motion

seeking to suppress Spearman’s identification of him as the perpetrator of the

crime and physical evidence obtained by police. In support of his argument

challenging Spearman’s identification of him, Appellant argued that the

identification procedures employed by police were “unduly suggestive and

conducive to irreparably mistaken identification.” Pretrial Motion, 2/11/26, at

¶ 4.   With respect to his Motion to Suppress Physical Evidence, Appellant

argued that the “arresting officer did not have probable cause” to stop and

search him. Id. at ¶¶ 13-14.

       On June 13, 2016, the suppression court held a hearing on Appellant’s

Motion. Officer James testifed that he has been a Philadelphia Police Officer

for 10 years, assigned to patrol the 25th District. N.T., 6/13/16, at 29.7 He

stated that he initiated the instant traffic stop because, in his experience, the

erratic driving, i.e., nearly hitting a vehicle, driving up on a curb, and nearly

hitting a street sign, indicate that the driver is, inter alia, “nervous.” Id. at

58. Officer James testified that he and Officer Taylor drew their guns at the

scene of the traffic stop based on experience in conducting automobile stops

in that area and the information provided by Spearman. Id. at 39.
____________________________________________


and Recklessly Endangering Another Person. 18 Pa.C.S. § 3701(a)(1), 18
Pa.C.S. § 903; 18 Pa.C.S. § 3921(a); 18 Pa.C.S. § 3925(a); 18 Pa.C.S. §
2701; and 18 Pa.C.S. § 2705, respectively.

7The 25th District is an area in which a large number of violent crimes occur.
See N.T., 6/13/16, at 29.

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       With respect to the iPhone app, Officer James explained that he is “very

familiar” with the “Find My iPhone” app, that his knowledge comes from both

his personal and professional experience, and that he has used it about 25

times before. Id. at 52. He further testified that he has not received any

outside training or any specialized instruction in the use of the app. Id. at 54.

Further, Officer James testified that the victim emphatically and without

hesitation identified Appellant as the perpetrator of the robbery. Id. at 20.

       On June 13, 2016, the suppression court denied Appellant’s Motion to

Suppress.8 Appellant proceeded to trial after which the jury convicted him of

Robbery, Firearms Not to be Carried Without a License, Carrying a Firearm in

Public in Philadelphia, and PIC.

       On August 26, 2016, the court sentenced Appellant to an aggregate

sentence of 7½ to 20 years’ incarceration.       Appellant did not file a Post-

Sentence Motion. On September 23, 2016, he filed a direct appeal to this

Court.

       Both Appellant and the trial court complied with Pa.R.A.P. 1925.

       Appellant raises the following two issues on appeal, which we have

reordered for ease of disposition:

       1. Did the lower [c]ourt err in denying Appellant’s [M]otion to
          [S]uppress the illegal stop and search of the vehicle [in which


____________________________________________


8  Although not relevant to this appeal, we note that the court granted
Appellant’s Motion to Suppress the statement he gave after police took him
into custody.

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J-S83011-17


         Appellant was traveling] when police did not have reasonable
         suspicion to stop the van?

      2. Did the lower [c]ourt err in denying Appellant’s [M]otion to
         [S]uppress the suggestive show-up identification of
         [Appellant]?

Appellant’s Brief at 4.

Issue 1 – Impermissible traffic stop

      In his first issue, Appellant claims that the court should have granted

his Motion to Suppress evidence and preclude evidence the Commonwealth

obtained from the van because the “ping” from the iPhone App was “the only

information suggesting the van’s occupants were the perpetrators” of the

robbery. Appellant’s Brief at 15.    Appellant argues that this “ping” “does not

arise [sic] to the requisite reasonable suspicion to stop and detain a suspect.”

Id.   He bases this argument on the allegation, without any meaningful

development, that the Find My iPhone app is “unsanctioned GPS technology”

whose results are insufficient “to justify an investigatory stop of an individual.”

Id. at 13.   We disagree.

      We review the trial court’s decision to deny a motion to suppress to

determine “whether the suppression court’s factual findings are supported by

the record and whether the legal conclusions drawn from those facts are

correct.” Commonwealth v. Freeman, 150 A.3d 32, 34 (Pa. Super. 2016).

Further, “[b]ecause 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.” Id. We are bound by the suppression

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court’s factual findings where they are supported by the record, and we may

reverse only if the court’s legal conclusions are erroneous. Id. at 35. Because

this Court’s mandate is to determine if the suppression court properly applied

the law to the facts, our scope of review is plenary. Id.

      The Fourth Amendment of the United States Constitution and Article 1,

Section 8 of our state Constitution protect citizens from unreasonable searches

and seizures. In re D.M., 781 A.2d 1161, 1163 (Pa. 2001). “To secure the

right of citizens to be free from . . . [unreasonable searches and seizures],

courts in Pennsylvania require law enforcement officers to demonstrate

ascending levels of suspicion to justify their interactions with citizens as those

interactions become more intrusive.” Commonwealth v. Beasley, 761 A.2d
621, 624 (Pa. Super. 2000). Our Supreme Court has defined three levels of

interaction between citizens and police officers: (1) mere encounter, (2)

investigative detention, and (3) custodial detention. See Commonwealth v.

Fuller, 940 A.2d 476, 478 (Pa. Super. 2007).                Here, police subjected

Appellant to an investigative detention.

      “[W]hen    the   police   stop   a   vehicle   in   this    Commonwealth   for

investigatory purposes, the vehicle, and its occupants are considered ‘seized’

and this seizure is subject to constitutional constraints.” Commonwealth v.

Swartz, 787 A.2d 1021, 1024 (Pa. Super. 2001).                   When evaluating the

legality of investigative detentions, Pennsylvania has adopted the holding of

Terry v. Ohio, 392 U.S. 1 (1968), wherein the United States Supreme Court




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held that police may conduct an investigatory detention if they have

reasonable suspicion that criminal activity is afoot.

        “When conducting a Terry analysis, it is incumbent on the suppression

court to inquire, based on all of the circumstances known to the officer ex

ante,    whether     an   objective   basis     for    the   seizure   was   present.”

Commonwealth v. Carter, 105 A.3d 765, 769 (Pa. Super. 2014). In order

to justify an investigative detention, a police officer must be able to identify

“specific and articulable facts” leading her to suspect that criminal activity is

afoot. Terry, 392 U.S. at 21.

        The assessment of whether reasonable suspicion exists for an

investigatory detention requires an evaluation of the totality of the

circumstances.     Commonwealth v. Gray, 784 A.2d 137, 142 (Pa. Super.

2001).     “Among the factors to be considered in establishing a basis for

reasonable suspicion are tips, the reliability of the informants, time, location,

and suspicious activity, including flight.”           Id.    Reasonable suspicion is

“considerably less than proof of wrongdoing by a preponderance of the

evidence.” Navarette v. California, 134 S. Ct. 1683, 1687 (2014). See also

Commonwealth v. Fink, 700 A.2d 447, 449 (Pa. 1997) (explaining that

reasonable suspicion is less than a “certainty, a preponderance, or even a fair

probability.”).    When evaluating whether reasonable suspicion existed in a

particular case, this Court must “view the circumstances through the eyes of

a trained officer, not an ordinary citizen.”          Commonwealth v. Riley, 715
A.2d 1131, 1135 (Pa. Super. 1998). “Reasonable suspicion depends upon

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both the content of the information possessed by the police and its degree of

reliability.”   Commonwealth v. Wiley, 858 A.2d 1191, 1194 (Pa. Super.

2004) (citation omitted).

       In the instant case, the suppression court found Officer James’s

observations sufficiently specific and reliable to form a reasonable suspicion

that criminal activity was afoot.   The facts established that Officer James

received information regarding a robbery and responded to the scene within

a few minutes of receiving the call. Spearman gave Officer James a detailed

description of his assailants and the stolen items, including his iPhone. In

addition, Spearman told officers he was “fairly sure” the perpetrators fled in a

vehicle following the incident.

       Due to his personal and professional experience with the “Find My

iPhone” app, Officer James was able to locate Spearman’s iPhone. The App

tracked the missing phone to a specific location, in the area of 5 th Street and

Erie Avenue. Officer James’s experience using the App to recover missing

iPhones comes from 25 prior instances throughout his personal and

professional life in which the App successfully located the missing iPhone.

Given his experience with the reliability of the “Find My iPhone” app, Officer

James’s belief that Spearman’s phone was at the indicated location was

reasonable.

       Only about one minute elapsed between the time Officer James received

the notification of the missing phone’s location and when he reached the

identified location.   When Officer James reached the area, he saw a van

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proceeding through the parking lot of a Sunoco gas station.          He did not

observe any other vehicles or pedestrians. Officer James then saw the van

driving erratically, from which he concluded that the operator of the van was

either “nervous” or not paying attention to the road.

      Officer James has been a police officer in the 25 th District of the East

Division for ten years. He testified that the 25th District is an area in which a

high number of violent crimes occur.      The neighborhood is known for gun

violence, armed robberies, and open-air narcotic sales.

      Officer James’s conclusion that the individuals in the van that he

observed in the parking lot of the A-Plus Mini Market may have been involved

in criminal activity was reasonable because: (1) he had experience with the

reliability of the “Find My iPhone” app; (2) he arrived quickly at the location

identified by the “ping;” (3) no other vehicles or individuals were present at

the location; (4) the driver of the vehicle was operating it in a manner

consistent with nervousness; and (5) he knew that the “pinged” location was

a high crime area.

      The totality of the circumstances, of which the “Find My iPhone ping”

was but one factor, establish that Officers James and Taylor had specific and

articulable reasonable facts that led them to conclude that the individuals in

the van were engaged in criminal activity. Thus, reasonable suspicion existed

for them to conduct an investigatory detention of Appellant.




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Issue 2 - Impermissibly suggestive identification

      Appellant next contends that the process used to identify him was

impermissibly suggestive and “irreversibly tainted any identification the

complainant may have made.” Appellant’s Brief at 9, 12. He avers that the

victim could not have sufficiently observed the assailants’ faces because they

were wearing hooded sweatshirts.      Appellant’s Brief at 12.   Appellant also

contends that the victim “was improperly involved with the police investigation

when he rode with police and observed police recover evidence from Appellant

before he [the victim] had a chance to identify him.” Appellant’s Brief at 9-

10. He also avers that the use of the “Find my iPhone” app led the victim to

conclude that the police were leading him to the perpetrator of the crime;

thus, because Appellant was the only person placed in handcuffs, the victim’s

identification of him was tainted. Id. at 12.

      “In reviewing the propriety of 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)

(en banc). Our Supreme Court has held that on-scene identifications are not

only consistent with due process but also enhance the reliability of

identifications as they occur when events are fresh in a witness’s mind.

Commonwealth v. Turner, 314 A.2d 496, 498-99 (Pa. 1974).

      In deciding whether to admit contested identification evidence, the trial

court must consider: (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

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of his prior description of the perpetrator at the confrontation; (4) the level of

certainty demonstrated at the confrontation; and (5) the time between the

crime and confrontation. Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.

Super. 2003). “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.” Brown, supra.

      The suppression court may suppress an out-of-court identification only

where,   after     considering    all   the   relevant     circumstances,    “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. Kendricks, 30 A.3d 499, 504 (Pa.

Super. 2011) (citation omitted and emphasis added). The most important

factor in addressing the reliability of an identification is the witness’s

opportunity   to    observe      the    perpetrator   at   the   time   of   the    crime.

Commonwealth v. Edwards, 762 A.2d 382, 391 (Pa. Super. 2000).

      Here, Appellant states that the “show-up identification was unduly

suggestive, there is no independent basis for an in-court identification, and

the trial court erred in denying Appellant’s motion to suppress.” Appellant’s

Brief at 12. We disagree.

      Our review of the record reveals that the identification procedure

employed in the instant case was consistent with due process and the

identification was not the result of impermissibly suggestive methods. First,

contrary to Appellant’s contention, Spearman had ample opportunity to view

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Appellant’s unobstructed face during the commission of the crime as it took

place in a well-lit area over a period of 30-35 seconds. When reporting the

robbery, Spearman described the perpetrator as wearing a hooded sweatshirt,

and, thus, Appellant’s face was not covered. Given the lighting, the proximity

of the men to each other, and Appellant’s uncovered face, Spearman was able

to view Appellant at the time of the crime.

      The record also indicates that Spearman was focused and attentive

during the gunpoint robbery and he was able to describe the perpetrator in

detail immediately following the incident to both the 9-1-1 dispatcher and the

responding police officers.   Spearman exhibited a high degree of certainty

when he promptly and spontaneously recognized Appellant as his assailant

and indicated to Officers James and Taylor that they had apprehended the

right person by jumping in his seat, shouting, nodding, and pointing

enthusiastically at Appellant as he exited the van. Moreover, the chronology

of events indicates that, contrary to Appellant’s assertion, Spearman identified

Appellant prior to knowing that police had recovered his iPhone from

Appellant’s pocket or seeing Appellant’s gun.

      Last, mere minutes passed between the time of the crime and

Spearman’s identification of Appellant as the perpetrator.

      Appellant’s argument that police acted suggestively by separating

Appellant from the other suspects and placing only Appellant in handcuffs

likewise lacks merit. The record indicates that police removed each occupant

of the van one-by-one in order to eliminate any possibility of impropriety and

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had handcuffed Appellant, and not the other occupants, because Appellant

was the only person observed handling a gun.

      Next, Appellant’s contention—that the identification procedure followed

by police was suggestive or that Spearman was susceptible to suggestion

because of the use of the iPhone app—is belied by the record. Initially, officers

stopped a potential suspect riding a bicycle in the area of the crime. After

looking at that man’s face, Spearman immediately knew he was not the

assailant. Further, Spearman indicated to police that an onlooker at the scene

of the van-stop was not involved in the crime. Last, Spearman told police that

the men in the van, other than Appellant and Lyles, were also not involved.

The record reflects that Spearman was not a victim who would identify just

anyone as involved in the robbery.

      Here, we conclude that the suppression court’s factual findings are

supported by the record and its legal conclusions are correct. There is no

indication under the facts of this case that the identification procedure was so

impermissibly suggestive as to give rise to a very substantial likelihood of

irreparable misidentification.    To the contrary, under the totality of the

circumstances,   particularly    the   evidence   that   Spearman   had   ample

opportunity to see Appellant’s face and the proximity in time between the

incident and Spearman’s identification of Appellant as its perpetrator, we find

that the court appropriately permitted the admission of the identification

evidence.




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     In light of this conclusion, we need not address Appellant’s argument

that the court should have suppressed Spearman’s in-court identification. See

Commonwealth v. DeJesus, 820 A.2d 102, 113 (Pa. 2004) (explaining that

where an appellant fails to establish that an out-of-court identification was

impermissibly tainted, it is not necessary for the reviewing court to address

the derivative assertion that an in-court identification should have been

suppressed).

     Judgment of Sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/18




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