J-S81025-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DWIGHT MOSLEY

Appellant No. 501 EDA 2016

Appeal from the Judgment of Sentence December 22, 2015

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0002045-2015

BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY MOULTON, J.: FILED JANUARY 23, 2017

Dwight Mosley appeals from the December 22, 2015 judgment of 

sentence entered in the Delaware County Court of Common Pleas following 

his jury trial convictions for robbery, aggravated assault, possession of a 

firearm prohibited, possession of a controlled substance, and possession of 

drug paraphernalia.1 We affirm.

This case arose out of the December 8, 2014 robbery of Reginald 

Glascoe. Mosley was arrested on the night of, and near the scene of, the

robbery. He filed an omnibus pre-trial motion seeking to suppress the 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3701(a)(1), 2702(a)(4), and 6105(a)(1), and 35 P.S. 

780-113(a)(16) and 780-113(a)(32), respectively. The jury found Mosley 

not guilty of attempted homicide, 18 Pa.C.S. § 901.
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evidence seized and statements made, arguing they were the result of an 

illegal detention. Mosley further argued that the trial court should have 

suppressed Glascoe’s out-of-court and in-court identifications. 

After a suppression hearing, the trial court found the following facts 

relating to Mosley’s illegal detention claim:

1. Officer Ricci Pyle is employed with the Chester City 

Police Department and has been so employed since March 

of 2014. Prior to his employment with Chester Police 

Department, Officer Pyle spent 10 years as a police officer 

with Marcus Hook Police Department.

2. On December 8, 2014, Officer Pyle was working in his 

capacity as a patrolman, in full uniform. At approximately 

12:30a.m., Officer Pyle observed a male at 23rd and 

Madison. The male was frantically running down the 

street.

3. Officer Pyle stopped the male to see what was going on. 

The male stated that he was just robbed at gunpoint. The 

robber demanded that he give him money. The robber 

kept demanding that the victim give him more money 

despite the victim telling him it was all he had. The robber 

then pointed the gun at [the victim’s] feet and pulled the 

trigger three times but the gun did not fire and the victim 

ran away.

4. Officer Pyle transported the victim to his home around 

the corner. The victim stated that the robber was a black 

male in a black hoodie and that he got a good look at his 

attacker and would be able to identify him.

5. Officer Pyle headed back towards 23rd street and 

observed two subjects walking towards him, one being a 

white female. Officer Pyle circled around the block. When 

Officer Pyle was approximately a house away from where 

the robbery occurred, he again observed the female except 

she was now walking alone.

6. Officer Pyle exited his vehicle, without initiating any 

lights or sirens, merely to speak with the woman.
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7. As Officer Pyle was crossing the street towards the 

woman, a black male appeared. Officer Pyle asked the 

male where he went from the time he first saw them until 

now. The male, later identified as [Mosley], stated that he 

was urinating in someone’s backyard. [Mosley] told Officer 

Pyle that he didn’t want to pee on the sidewalk.

8. Officer Pyle decided he was going to arrest [Mosley] for 

disorderly conduct. [Mosley] verbally provided his 

information to Officer Pyle.

9. Prior to placing [Mosley] in cuffs, Officer Pyle asked 

[Mosley] if he had anything on his person that he should 

be aware of, to which [Mosley] responded that he had a 

gun.

10. Officer Pyle asked [Mosley] where the gun was located 

on his person; [Mosley] replied that it was in his pocket. 

Officer Pyle retrieved the weapon.

11. At this point, with [Mosley] matching the description, 

having a firearm on his person, and being in close vicinity 

to the scene of the robbery, Officer Pyle contacted the 

victim and asked if he could come down for a possible 

identification.

12. Officer Pyle placed [Mosley] in the back of his patrol 

vehicle.

13. As Officer Pyle observed another patrol vehicle 

bringing the victim towards the scene, Officer Pyle 

removed [Mosley] from his patrol vehicle and placed 

[Mosley] towards the end of the car.

14. The victim stayed in the other police vehicle 

approximately twenty feet from [Mosley]; however, a light 

was placed on [Mosley] and the victim made a positive 

identification.

Order, 9/24/2015, at 1-2. The trial court denied Mosley’s motion and he 

proceeded to a jury trial. 

The trial court summarized the evidence presented at trial as follows:

On December 8, 2014, at approximately 12:00a.m., 

Reginald Glascoe, “herein Mr. Glascoe” was leaving his 
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store and walking back to his home in Chester, Delaware 

County. [N.T., 10/14/2015 p. 28-32]. As Mr. Glascoe was 

walking down the 100 block of East 23rd Street, he ran 

into a female that he recognized. [N.T., 10/14/2015 p.28-

32]. The female, Ann Marie, was standing in between her 

yard and a neighbor’s yard when she began to strike up a 

conversation with Mr. Glascoe. [N.T., 10/14/2015 p. 29]. 

Ann Marie stated that she wanted to go inside the house 

next to where she was staying in order to see her cousin; 

the two entered the house. [N.T., 10/14/2015 p. 29]. 

Once inside, the location was completely dark and Mr. 

Glascoe started to feel as though something was wrong. 

[N.T., 10/14/2015 p.29]. Before he had a chance to react, 

another individual, whom Mr. Glascoe could not see at the 

time, put a gun to the back of his head and told him to 

empty his pockets. [N.T., 10/14/2015 p. 29 -30].

Mr. Glascoe emptied his pockets and the individual with 

the gun took his wallet and the cash in his pocket which 

Mr. Glascoe estimated to be anywhere between $40-$53 

dollars. [N.T., 10/14/2015 p. 30-31]. Unsatisfied with the 

contents of Mr. Glascoe’s pockets, the individual with the 

gun demanded more to which Mr. Glascoe kept repeating 

that he did not have anything else on him. [N.T., 

10/14/2015 p. 31]. [Mosley] pulled the trigger aiming 

towards the area of Mr. Glascoe’s feet but the gun did not 

fire. [N.T., 10/14/2015 p.31]. At this point, the individual 

and Mr. Glascoe were facing each other. [N.T., 

10/14/2015 p. 31]. The individual was wearing dark 

clothing and a hoodie but Mr. Glascoe could clearly see his 

face. [N.T., 10/14/2015 p. 31-32]. The individual was 

later identified as Dwight Mosley . . . . [N.T., 10/14/2015 

p. 32].

[Mosley] told Mr. Glascoe to walk outside of the house. 

[N.T., 10/14/2015 p. 33]. Once outside, Mr. Glascoe told 

[Mosley] that he “was just going to have to do what you 

have to do because I’m leaving.[”] [N.T., 10/14/2015 p. 

33]. [Mosley] pulled the trigger on the small black 

revolver a second time, this time pointing the gun in the 

area of Mr. Glascoe’s chest. The two were approximately 

five feet away from each other. [N.T., 10/14/2015 p. 33-

35]. Mr. Glascoe saw and heard [Mosley] pull the trigger 

of the firearm a second and third time. He could hear the 

spark from the gun; however the gun did not go off. 
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[N.T., 10/14/2015 p. 36]. [Mosley] began fiddling with the 

firearm so Mr. Glascoe started running down the middle of 

the street. [N.T., 10/14/2015 p.36].

Officer Ricci Pyle was working patrol for the City of Chester 

Police Department that evening and was assigned to the 

22 area beat, encompassing the 100 block of East 23rd 

Street. [N.T., 10/14/2015 p. 83]. Around 12:30a.m., 

Officer Pyle was responding to a 911 emergency call and 

traveling east on East 23rd Street approaching the 100 

block when he observed a male come off the north end of 

the sidewalk in a full sprint, running east down the middle 

of the roadway. [N.T., 10/14/2015 p. 84]. As Officer Pyle 

approached the intersection of East 23rd and Madison 

Avenue, the male was standing on the corner, looking out 

of breath. [N.T., 10/14/2015 p. 84]. Officer Pyle rolled 

down his window and asked the male, who later identified 

himself as Mr. Glascoe, if he was alright. Mr. Glascoe 

responded that he had just been robbed. [N.T., 

10/14/2015 p. 84]. Officer Pyle pulled his car off to the 

side and got out in order to speak with Mr. Glascoe. [N.T., 

10/1/42015 p. 84].

Mr. Glascoe advised Officer Pyle what had transpired at the 

residence on the 100 block of East 23rd Street. [N.T., 

10/14/2015 p. 37]. Mr. Glascoe informed Officer Pyle the 

man who robbed him was a black male wearing a black 

hoody, had a gun, and was located on the 100 block of 

East 23rd Street. [N.T., 10/14/2015 p. 85, 86]. Officer 

Pyle took Mr. Glascoe back to the area and Mr. Glascoe 

pointed out a residence numbered 107 as the exact 

location where it happened. [N.T., 10/14/2015 p. 38]. 

Officer Pyle took [Mr. Glascoe] home to his residence on 

Madison Street. [N.T., 10/14/2015 p. 38]. Mr. Glascoe 

told Officer Pyle that he would be able to identify who 

robbed him. [N.T., 10/14/2015 p. 88].

After dropping Mr. Glascoe off, Officer Pyle returned to the 

area, traveling east on 23rd Street in his patrol vehicle; he 

could see two people off in the distance in the middle of 

the street walking west towards his car. [N.T., 

10/14/2015 p. 88]. As he got closer to the individuals, 

Officer Pyle observed the two walk toward the north 

sidewalk. [N.T., 10/14/2015 p. 88]. When Officer Pyle 

reached the area where the two were walking, he only 
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observed one person, a white female. [N.T., 10/14/2015 

p. 89]. Officer Pyle drove around the block and stopped 

on the corner of Crosby Street and East 23rd Street. 

[N.T., 10/14/2015 p. 89]. After sitting there for 

approximately five-to-ten seconds, Officer Pyle observed 

the white female reappear, walking towards his general 

direction on the south side of East 23rd Street. [N.T., 

10/14/2015 p. 89].

Officer Pyle exited his vehicle to ask the female some 

questions as she was in the area of the robbery. [N.T., 

10/14/2015 p. 89]. As he was crossing East 23rd Street, a 

black male appeared from the east, the area where Officer 

Pyle originally saw the two individuals walking. [N.T., 

10/14/2015 p. 90]. Officer Pyle asked the male, later 

identified as [Mosley], where he disappeared to from the 

first time Officer Pyle saw them. [N.T., 10/14/2015 p. 91]. 

[Mosley] responded that he went into a rear yard to 

urinate. [N.T., 10/14/205 p. 91]. The woman provided 

that her name was Ann Marie Borkey. [N.T., 10/14/2015 

p. 91]. Ann Marie stated that she lived at 103 East 23rd 

Street, the residence next to 107. [N.T., 10/14/2015 p. 

92]. Officer Pyle asked [Mosley] why he would urinate in 

someone’s yard as opposed to using a bathroom; [Mosley] 

did not really answer. [N.T., 10/14/2015 p. 93]. At this 

time, Officer Pyle determined that he was going to place 

[Mosley] under arrest for public urination and disorderly 

conduct. [N.T., 10/14/2015 p. 32].

Prior to placing him into custody, Officer Pyle asked 

[Mosley] if he had anything on his person that Officer Pyle 

should know about. [N.T., 10/14/2015 p. 93]. [Mosley] 

advised Officer Pyle that he “found the gun.” [N.T., 

10/14/2015 p. 93]. Officer Pyle retrieved a small black 

revolver from [Mosley’s] person. [N.T., 10/14/2015 p. 

93]. [Mosley] then told Officer Pyle that he had the gun 

for Ann Marie. [N.T., 10/14/2015 p. 93]. After securing 

the firearm, Officer Pyle observed three empty chambers 

and two live rounds still left in the five barrel chamber. 

[N.T., 10/14/2015 p. 95]. Knowing the description of the 

male involved in the robbery, the woman being named Ann 
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Marie,[2] her residence being next to the scene of the 

robbery, the firearm matching the description and three 

missing bullets matching Mr. Glascoe’s explanation of what 

happened, and the two individuals walking around the area 

of the crime, Officer Pyle told [Mosley] that he had reason 

to believe he was involved in a robbery and that he would 

have to remain here for possible identification from the 

victim. [N.T., 10/14/2015 p. 96]. In addition to the being 

in possession of the firearm, [Mosley] also had $42 dollars 

of loose cash on him. [N.T., 10/14/2015 p. 98].

Officer Matthew Steward was also on patrol for Chester 

City Police Department that evening. [N.T., 10/14/2015 p. 

75]. Responding to a radio call from Officer Pyle in 

regards to a robbery, Officer Steward responded to the 

100 block of East 23rd Street. [N.T., 10/14/2015 p. 76]. 

When Officer Steward arrived on scene, Officer Pyle had a 

subject stopped and had recovered a firearm. [N.T., 

10/14/2015 p. 76]. Officer Pyle directed Officer Steward 

to make contact with Mr. Glascoe and transport him back 

to the scene for a possible identification. [N.T., 

10/14/20I5 p. 76]. 

Officer Steward made contact with Mr. Glascoe and picked 

up him at his residence on Madison Street, approximately 

thirty minutes after Officer Pyle had originally dropped him 

off. [N.T., 10/14/2015 p. 77, 38]. Mr. Glascoe got in the 

back of Officer Steward’s marked patrol vehicle and the 

two drove back to Officer Pyle's location. [N.T., 

10/14/2015 p. 77]. When they arrived, Officer Steward 

turned on his spotlight so Mr. Glascoe could see the 

suspect who was approximately 10-to-12 feet from the 

patrol vehicle. [N.T., 10/14/2015 p. 78]. Mr. Glascoe 

made a positive identification, without hesitation in his 

voice, within a matter of seconds. [N.T., 10/14/2015 p. 

78]. According to Mr. Glascoe, even though the entire 

____________________________________________

2 Glascoe did not tell Officer Pyle that a female had been involved in 

the incident. N.T., 4/27/16, at 100. Therefore, at the suppression hearing, 

Officer Pyle did not testify that Mr. Glascoe had told him about the encounter 

with this female and, at the time of the stop, he did not know that a female 

named Ann Marie was involved in the incident.
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robbery occurred within a matter of minutes, he stared at 

[Mosley’s] face and the gun pointed at him for what 

seemed like an eternity. [N.T., 10/14/2015 p. 39-40]. 

From the time Officer Pyle encountered Mr. Glascoe until 

the positi[ve] identification, the whole situation was 

approximately thirty-five minutes. [N.T., 10/14/2015 p. 

101]. After pointing out [Mosley] to the officers, Mr. 

Glascoe went to Chester Police Station to write a 

statement. [N.T., 10/14/2015 p. 41].

Opinion, 4/27/16, at 1-6 (“1925(a) Op.”) (brackets around citations in 

original). The trial court further noted that detective Louis Grandizio of the 

Delaware County Criminal Investigative Division was offered and accepted as 

an expert in firearms, firearm identification, and tool-markings. 1925(a) Op. 

at 7. Detective Grandizio prepared a report, which was marked as an 

exhibit. Id. Detective Grandizio tested the firearm found on Mosley and 

found it to be operable. He further tested the two cartridges that were 

located inside the firearm and identified the cartridges by manufacturer and 

caliber. Detective Grandizio explained that “with only two cartridges in a 

five chamber revolver, theoretically the trigger could be pulled three times 

with no cartridge actually being fired.” Id. 

In addition, the Commonwealth and Mosley stipulated that, if called to 

testify: (1) Corporal Weigand would testify that he completed a search of 

Mosley in the jail cell of the Chester Police Department and located four bags 

of crack cocaine, and that a proper chain of custody has been established as 

to the narcotics; and (2) a lab technician from the Pennsylvania State Police 

Lab would testify that the substance tested positive to be cocaine. Id.
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The jury found Mosley guilty of robbery, aggravated assault, 

possession of a controlled substance, and possession of drug paraphernalia. 

The jury found Mosley not guilty of attempted homicide. The jury further 

found, in response to a fact question, that Mosley possessed a firearm 

beyond a reasonable doubt. The jury was then asked whether Mosley was 

guilty of possession of a firearm prohibited and found him guilty. 

On December 22, 2015, the trial court sentenced Mosley to an 

aggregate sentence of 180 to 360 months’ incarceration plus 4 years’ 

consecutive probation.3 On December 30, 2015, Mosley filed a postsentence motion, arguing that the verdict was against the weight of the 

evidence, requesting that the trial court reconsider its order denying 

Mosley’s pre-trial motions, and seeking reconsideration of his sentence. On 

January 13, 2016, the trial court denied this motion. 

On February 11, 2016, Mosley filed a timely notice of appeal. That 

same day, the trial court entered an order directing Mosley to file a 

Pennsylvania Rule of Appellate Procedure 1925(b) statement. Mosley’s 

____________________________________________

3 The trial court imposed a sentence of 120 to 240 months’ 

incarceration for the robbery conviction; 60 to 120 months’ incarceration for 

the conviction for possession of firearm prohibited, consecutive to the 

sentence imposed for the robbery conviction; 24 to 48 months’ incarceration 

for the aggravated assault conviction, concurrent to the other sentences; 3 

years’ consecutive probation for the conviction for possession of a controlled 

substance; and 1 year consecutive probation for the conviction for 

possession of drug paraphernalia. 
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counsel requested an extension of time to file a 1925(b) statement, which 

the trial court granted. Counsel then filed a petition to appoint counsel4and 

a second request for an extension of time. The trial court appointed new 

counsel and granted an extension. On April 7, 2016, new counsel filed a 

Rule 1925(b) statement. 

Mosley raises the following issues on appeal:

1. Did the trial court abuse its discretion and/or commit 

[an] error of law by denying [Mosley’s] motion to suppress 

the weapon and statements made to the officer, where no 

reasonable suspicion existed for the stop for the crimes 

with which [Mosley] was ultimately charged, and any 

statements were coerced as he was subject to custodial 

interrogation without being advised of the Miranda[5]

warnings?

2. Did the trial court abuse its discretion and/or commit 

[an] error of law by denying [Mosley’s] request to preclude 

the witness’s out of court identification, where the 

identification procedures used were overly suggestive and 

in violation of [Mosley’s] due process rights under U.S. v. 

Wade[6]and subsequent holdings, as [Mosley] was taken 

to the station and presented to the alleged victim alone for 

the purpose of being identified?

____________________________________________

4 The petition to appoint counsel stated that current counsel had a 

conflict of interest because “[i]t is believed that an essential Commonwealth 

witness was represented by the Delaware County Public Defender’s Office. 

This information was recently discovered.” Pet. to Appoint Counsel, filed 

3/14/16, at ¶ 8.

5 Miranda v. Arizona, 384 U.S. 436 (1966).

6 388 U.S. 218 (1967).
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3. Did the trial court abuse its discretion and /or commit 

[an] error of law by invoking the mandatory minimum 

sentence, as it was unconstitutional under the Alleyne[7]

decision in that it allowed the imposition of a mandatory 

minimum sentence based on findings of the sentencing 

judge by a preponderance of the evidence?

4. Was the verdict against the weight and sufficiency of the 

evidence where the Commonwealth’s witness testimony 

was wildly inconsistent and incredible, as he was unable to 

describe the perpetrator’s clothing despite telling the 

investigating officer that “[y]es I got a good look at him,” 

and as it consisted of three different versions of the 

location where the robbery took place?

5. The verdict was against the weight and sufficiency of 

the evidence where, unbeknownst to defense counsel, the 

Commonwealth’s material witness had a previous recent 

conviction for a crimen falsi offense (see CP-23-CR0004705-2012), and was not subjected to impeachment 

for said offense causing actual prejudice to [Mosley].

Mosley’s Br. at 4-5.

Mosley first argues that Officer Pyle lacked reasonable suspicion to 

stop and search Mosley and that the trial court erred when it failed to 

suppress the weapon found by Officer Pyle as fruit of this unlawful stop and 

search. Mosley’s Br. at 10. Mosley maintains that the vague description 

provided by Glascoe of a male in a hoodie and jeans failed to provide 

reasonable suspicion to stop Mosley. Id. at 11. Mosley also argues that, 

even if Officer Pyle had reasonable suspicion to stop him, the trial court 

should have suppressed his statement that he “found a gun” and the gun 

itself because the statements were coerced. Id. at 13. He claims he was 

____________________________________________

7 United States v. Alleyne, 133 S.Ct. 2151 (2013).
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subject to a custodial interrogation, but was not provided his Miranda

warnings. Id.

When reviewing a denial of a suppression motion, we must determine 

whether the record supports the trial court’s factual findings and whether the 

legal conclusions drawn from those facts are correct. Commonwealth v. 

Brown, 64 A.3d 1101, 1104 (Pa.Super. 2013). We may only consider 

evidence presented at the suppression hearing. In re L.J., 79 A.3d 1073, 

1085-87 (Pa. 2013). In addition, because the Commonwealth prevailed in 

the suppression court, we consider only the Commonwealth’s evidence and 

so much of the defense evidence “as remains uncontradicted when read in 

the context of the record as a whole.” Brown, 64 A.3d at 1104 (quoting 

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super. 2010)). We may 

reverse only if the legal conclusions drawn from the facts are in error. Id.

The law recognizes three distinct levels of interaction between police 

officers and citizens: (1) a mere encounter; (2) an investigative detention; 

and (3) a custodial detention. See Commonwealth v. Jones, 874 A.2d 

108, 116 (Pa.Super. 2005). 

“A mere encounter can be any formal or informal interaction between 

an officer and a citizen, but will normally be an inquiry by the officer of a 

citizen. The hallmark of this interaction is that it carries no official 

compulsion to stop or respond,” Commonwealth v. DeHart, 745 A.2d 633, 

636 (Pa.Super. 2000) (internal citations and quotations omitted), and 
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therefore need not be justified by any level of police suspicion. 

Commonwealth v. Polo, 759 A.2d 372, 375 (Pa. 2000).

“In contrast, an investigative detention . . . carries an official 

compulsion to stop and respond.” DeHart, 745 A.2d at 636 (internal 

quotation marks omitted). Because “this interaction has elements of official 

compulsion it requires reasonable suspicion of unlawful activity.” Id. 

(internal quotation marks omitted).

Finally, “a custodial detention occurs when the nature, duration and 

conditions of an investigative detention become so coercive as to be, 

practically speaking, the functional equivalent of an arrest.” Id. This level 

of interaction requires that the police have probable cause to believe that 

the person detained “has committed or is committing a crime.” 

Commonwealth v. Goldsborough, 31 A.3d 299, 306 (Pa.Super. 2011) 

(quoting Commonwealth v. Williams, 2 A.3d 611 (Pa.Super. 2011) (en 

banc)).

Following a hearing, the trial court made the factual findings as stated 

above, supra at 2-3, which are supported by the record. The trial court 

further stated in its conclusions of law:

5. Here, the initial interaction between Officer Pyle and 

[Mosley] was a mere encounter. [Mosley] was free to 

leave when Officer Pyle approached him. As such, 

[Mosley] was not entitled to Miranda warnings prior to 

Officer Pyle speaking with him. [Mosley] volunteered that 

he was urinating in a public place. At this moment, Officer 

Pyle was well within his power to cite or arrest [Mosley] for 

a summary offense and to inquire about weapons, as he 

was being placed into cuffs.
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6. Once Officer Pyle legally obtained the firearm, coupled 

with the information he had about the robbery that 

occurred in the exact same area a short time prior, Officer 

Pyle had reasonable suspicion that criminal activity was 

afoot. With the victim’s positive identification, Officer Pyle 

also had probable cause to arrest for the robbery in 

addition to the disorderly conduct.

Order, 9/24/15, at 3. We agree with the trial court.

When Officer Pyle approached the female, who was in the vicinity of a 

recent robbery, and Mosley appeared, the interaction was a mere encounter, 

and no level of suspicion was required. Officer Pyle made no verbal 

commands and did not impede Mosley’s movement. See Commonwealth 

v. Guess, 53 A.3d 895, 897-98, 901 (Pa.Super. 2012) (finding initial 

approach and questioning was mere encounter where officers responded to 

report of attempted burglary by two black males, one wearing a white t-shirt 

and one wearing black jacket and where officers approached two males and 

asked whether they lived there and whether officer could speak with them). 

After Mosley informed Officer Pyle that he had just urinated in someone’s 

backyard, and Officer Pyle was prepared to issue a citation for disorderly 

conduct,8 he could conduct a pat down search prior to placing Mosley into 

____________________________________________

8 Officer Pyle testified that he decided to cite Mosley for disorderly 

conduct. N.T., 9/21/15, at 18. Whether he would issue a citation at the 

scene or bring the individual to the police station depended on whether he 

had more citations in his vehicle. Id. at 19. However, even if Officer Pyle 

planned to issue the citation at the scene, he would have conducted a patdown search for safety and place the individual in the police cruiser while 

writing the citation. Id. at 19-20.
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custody.9 Further, a pat-down search may include attendant questions, such 

as whether the individual has any weapons on his person. See

Commonwealth v. Kondash, 808 A.2d 943, 948 (Pa.Super. 2002) (noting 

that “even during a custodial interrogation, the requirements of Miranda will 

be excused where police have reason to fear for their well-being and ask 

questions to ensure their safety and not to elicit incriminating responses”); 

see also Commonwealth v. Pakacki, 901 A.2d 983, 988 (Pa. 2006) 

(concluding that frisk and “moderate number of questions” are not functional 

equivalent of arrest). Accordingly, the Trial Court properly declined to 

suppress the gun and Mosely’s statements.

Mosley next claims the trial court erred or abused its discretion when it 

denied his motion to preclude Glascoe’s out-of-court identification. Mosley’s 

Br. at 15. He claims the one-on-one identification was unduly suggestive. 

Id. at 16. Mosley further claims the in-court identification was inadmissible 

____________________________________________

9

 Recently, this Court stated in dicta that public urination may not 

always establish that an individual has committed the summary offense of 

disorderly conduct. Commonwealth v. Vetter, 149 A.3d 71, 76-77 

(Pa.Super. 2016). We stated that the Commonwealth had not presented 

evidence to demonstrate “how, under the specific facts of this case, where 

[the appellant] appeared to be urinating at the side of a highway, in the dark 

of night, in a snow storm, away from any residence or businesses, 

positioning himself such that he was largely protected from view, such action 

was likely to lead to tumult and disorder.” Id. at 77. Here, Officer Pyle had 

probable cause to believe that the crime of disorderly conduct may have 

been committed because Mosley admitted to urinating in someone’s 

backyard. See Commonwealth v. Williams, 568 A.2d 1281, 1288 

(Pa.Super. 1990) (finding arrest and search incident to arrest for public 

urination proper where officer observed appellant urinating on a building).
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because there was no independent basis for the identification as Glascoe 

provided different descriptions of the perpetrator and the identification 

occurred in the same vicinity as the crime, while Mosley was handcuffed and 

standing outside a police car. 

To determine whether an out-of-court identification should have been 

suppressed, this Court has stated:

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. 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. The corrupting effect of the 

suggestive identification, if any, must be weighed against 

these factors. 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. 

Commonwealth v. Hale, 85 A.3d 570, 574 (Pa.Super. 2014) (quoting 

Commonwealth v. Wade, 33 A.3d 108, 114 (Pa.Super. 2011)) (internal 

citations and quotation marks omitted), aff’d, 128 A.3d 781 (Pa. 2015). 

The trial court found:

Here, the robbery occurred a short time prior to the 

identification; the victim told Officer Pyle that he had a 

clear look at the robber and that he could identify him 

again. In addition, [Mosley] was not in the police cruiser 

when the identification took place. Furthermore, pursuant 

to the preliminary hearing testimony incorporated at the 

suppression hearing, the victim did not even know if 

[Mosley] was in cuffs during the identification. This Court 
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finds there was no evidence to suggest that the 

identification of [Mosley] by the victim was so 

impermissibly suggestive as to give risk to an irreparable 

likelihood of misidentification.

Order, 9/28/15, at 4. This was not an error of law or an abuse of discretion. 

See Hale, 85 A.3d at 575 (out-of-court identification admissible where 

police brought appellant, who was handcuffed, to victim’s home where 

robbery occurred, reasoning: (1) appellant held a gun in victim’s face and 

forced her to hide her face at various points, but victim observed appellant’s 

face on multiple occasions throughout five-minute robbery, (2) room was 

not fully illuminated, but victim’s television provided sufficient lighting during 

the robbery, and (3) victim refused to identify another individual as assailant 

before she recognized appellant); Commonwealth v. Armstrong, 74 A.3d 

228, 238-39 (Pa.Super. 2013) (out-of-court identification admissible where 

victim was able to see defendant when she first pulled up window shade and 

again after she called police, she described individual with “a white hoody on 

and a coat and a crow bar in his hand,” and less than ten minutes later, 

police drove her to see someone they had picked up running through the 

apartment complex), aff’d on other grounds, 107 A.3d 735 (Pa. 2014).10

____________________________________________

10 The Pennsylvania Supreme Court granted an appeal in Armstrong

to address whether 42 Pa.C.S. § 9714(a)(2) requires prior sentencing as a 

second-strike offender to invoke the third-strike provision. The Supreme 

Court affirmed as to this issue but stated, “[w]e express no opinion 

concerning the Superior Court’s treatment of any other issue.” 

Commonwealth v. Armstrong, 107 A.3d 735, 736 (Pa. 2014).
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In his third issue, Mosley argues that the trial court erred when it 

sentenced him to a mandatory minimum sentence. Mosley’s Br. at 17-18. 

This claim lacks merit. 

Mosley’s claim that the imposition of a mandatory minimum sentence 

violated Alleyne challenges the legality of his sentence. Commonwealth 

v. Barnes, --- A.3d ----, 2016 WL 7449232, at *5 (Pa. Dec. 28, 2016). 

Challenges to the legality of a sentence raise questions of law, for which this 

court’s standard of review is de novo and our scope of review is plenary. 

Commonwealth v. Fennell, 105 A.3d 13, 15 (Pa.Super. 2014).

The trial court sentenced Mosley to a mandatory minimum sentence 

pursuant to 42 Pa.C.S. § 9714(a)(1), which provides:

Any person who is convicted in any court of this 

Commonwealth of a crime of violence shall, if at the time 

of the commission of the current offense the person had 

previously been convicted of a crime of violence, be 

sentenced to a minimum sentence of at least ten years of 

total confinement, notwithstanding any other provision of 

this title or other statute to the contrary. Upon a second 

conviction for a crime of violence, the court shall give the 

person oral and written notice of the penalties under this 

section for a third conviction for a crime of violence. 

Failure to provide such notice shall not render the offender 

ineligible to be sentenced under paragraph (2).

42 Pa.C.S. § 9714(a)(1).

In Alleyne, the United States Supreme Court held that “[a]ny fact 

that, by law, increases the penalty for a crime is an ‘element’ that must be 

submitted to the jury and found beyond a reasonable doubt.” 133 S.Ct. at 

2155. However, as noted by this Court, the “Supreme Court has recognized 
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a narrow exception to this rule for prior convictions.” Commonwealth v. 

Bragg, 133 A.3d 328, 333 (Pa.Super. 2016); accord Alleyne, 133 S.Ct. at 

2160 n.1. Further, this Court has concluded that section 9714 is not 

unconstitutional pursuant to Alleyne, because it provides for mandatory 

minimum sentences based on prior convictions. Bragg, 133 A.3d at 33311; 

Commonwealth v. Reid, 117 A.3d 777, 785 (Pa.Super. 2015).

Because the imposition of a mandatory minimum sentence was based 

on a prior conviction, the sentence was constitutional.

In Mosley’s fourth issue, he claims that the verdict was against the 

weight of the evidence and there was insufficient evidence to support the 

guilty verdict. He claims the victim did not know Mosley and did not see 

Mosley’s face, as the assailant approached the victim from behind and there 

was poor lighting. Mosley’s Br. at 20. The victim stated he did not see 

Mosley’s face for long and testified that the suspect was wearing a “black 

hoodie, I guess,” but did not know what other clothing the suspect was 

wearing. Id. Further, although the victim’s written statement maintained 

____________________________________________

11 On August 4, 2016, the Pennsylvania Supreme Court granted a 

petition for allowance of appeal in Bragg to review the following question: 

“Should the mandatory minimum sentence imposed by the trial court under 

42 Pa.C.S.A. § 9714 be vacated, and this matter remanded for a new 

sentencing hearing, due to the fact that § 9714 is unconstitutional as 

currently drafted?” Order, Commonwealth v. Bragg, 143 A.3d 890 (Pa. 

2016). As of the date of this memorandum, the Supreme Court has not yet 

issued an opinion in Bragg. 
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the attack happened outside while he was walking home, at the preliminary 

hearing and at trial he stated the robbery occurred inside a house. Id.12

This Court reviews a weight of the evidence claim for an abuse of 

discretion. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). “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 744 A.2d 745, 753 (Pa. 

2000)). “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.” Id.

A trial court should not grant a motion for a new trial “because of a 

mere conflict in the testimony or because the judge on the same facts would 

have arrived at a different conclusion.” Clay, 64 A.3d at 1055. “Rather, 

____________________________________________

12 Although Mosley purports to challenge both the sufficiency and the 

weight of the evidence, the argument challenges only the weight of the 

evidence, as it alleges the victim’s testimony was not credible. Further, 

Mosley fails to indicate what element, if any, the evidence was insufficient to 

support. Accordingly, to the extent he attempts to raise a sufficiency 

challenge, that claim is waived. See Commonwealth v. Garland, 63 A.3d 

339, 344 (Pa.Super. 2013) (claim not preserved where failed to specify 

element or elements upon which evidence was insufficient); 

Commonwealth v. Santiago, 980 A.2d 659, 662 n.3 (Pa.Super. 2009) 

(claim waived when appellant fails to include argument to support issue).
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‘the role of the trial judge is to determine that notwithstanding all the facts, 

certain facts are so clearly of greater weight that to ignore them or to give 

them equal weight with all the facts is to deny justice.’” Id. (quoting 

Widmer, 744 A.2d at 752). Courts have stated that “a new trial should be 

awarded when the jury’s verdict is so contrary to the evidence as to shock 

one’s sense of justice and the award of a new trial is imperative so that right 

may be given another opportunity to prevail.” Id. (quoting 

Commonwealth v. Brown, 648 A.2d 1177, 1090 (Pa. 1994)).

The trial court concluded:

In number 4 and 5 of his 1925(b) Statement, [Mosley] 

alleges that the verdict was against the weight of the 

evidence as Mr. Glascoe’s testimony was incredible and 

that defense counsel was unaware of his conviction for a 

crime of crimen falsi, docketed as 4075-2012. The jury 

heard Mr. Glascoe’s version of the events that transpired. 

They also heard counsel for [Mosley] cross-examine Mr. 

Glascoe on any inconsistencies between his testimony and 

his first statement to police, marked as C-3. Counsel for 

[Mosley] also pointed out any inconsistencies between [Mr. 

Glascoe’s] testimony and his prior testimony at the 

preliminary hearing. Counsel went through the testimony 

line-by-line pointing out what he thought to be 

inconsistences between the testimonies. The jury weighed 

the evidence, listened to Mr. Glascoe explain his answers 

to counsel’s questions, and determined that he was a 

credible witness. At best, the minor inconsistences elicited 

by counsel for [Mosley] were not enough to damage Mr. 

Glascoe’s credibility and certainly do not shock one[’]s 

sense of justice. As such, [Mosley’s] claim is without 

merit.

1925(a) Op. at 11. The trial court did not abuse its discretion in finding the 

verdict did not shock the conscience and in finding the claim meritless.
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Mosley’s final issue is based on the claim that the Commonwealth 

violated Brady v. Maryland, 373 U.S. 83 (1963), because it failed to 

disclose that Glascoe had, in 2012, pled guilty to providing false 

identification to law enforcement, a crime involving dishonesty or false 

statement. Mosley’s Br. at 21. He claims this deprived him of a meaningful 

chance to cross-examine Glascoe on the conviction and that he suffered 

prejudice as a result of the Commonwealth’s failure to disclose. Id.

13

Our Supreme Court has stated:

Under Brady, “a prosecutor has an obligation to disclose 

all exculpatory information material to the guilt or 

punishment of an accused, including evidence of an 

impeachment nature.” Commonwealth v. Spotz [610 

Pa. 17], 18 A.3d 244, 275–76 (Pa.2011) (citation omitted). 

To establish a Brady violation, appellant must 

demonstrate: the evidence at issue was favorable to him, 

because it was either exculpatory or could have been used 

for impeachment; the prosecution either willfully or 

inadvertently suppressed the evidence; and prejudice 

ensued. Id., at 276 (citation omitted). “The evidence at 

issue must have been ‘material evidence that deprived the 

defendant of a fair trial.’ . . . ‘Favorable evidence is 

material . . . if there is a reasonable probability that, had 

the evidence been disclosed to the defense, the result of 

the proceeding would have been different.’” Id. (citations 

omitted).

Commonwealth v. Solano, 129 A.3d 1156, 1170 (Pa. 2015) (quoting 

Commonwealth v. Walker, 613 Pa. 601, 36 A.3d 1, 9 (2011) (omissions in 

____________________________________________

13 Mosley frames this issue as both a sufficiency of the evidence claim 

and a weight of the evidence claim. His argument, however, raises a Brady 

claim.
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original)). An appellant may not establish a Brady violation “when the 

appellant knew, or with reasonable diligence, could have uncovered the 

evidence in question,” Commonwealth v. Bomar, 104 A.3d 1179, 1189 

(Pa. 2014) (quoting Commonwealth v. Paddy, 15 A.3d 431, 451 (Pa. 

2011)), or where the parties had equal access to the information, 

Commonwealth v. Grant, 813 A.2d 726, 730 (Pa. 2002).

Following Mosley’s sentencing, counsel from the public defender’s 

office14 filed a motion to withdraw alleging he had a conflict of interest 

because the public defender’s office previously represented a witness in the 

case. The sole non-police officer witness at trial was Glascoe. Therefore, 

Mosley’s counsel had the information the prosecution allegedly withheld, that 

is, that Glascoe pled guilty to providing false identification in 2012. Mosley 

has not established that he could not have uncovered the evidence with 

reasonable diligence. See Grant, 813 A.2d at 730 (finding appellant failed 

to establish Brady claim where he did not explain why “public defender 

could not have procured” information about witness’s prior conviction and 

____________________________________________

14

 Mosely was represented by counsel from the public defender’s office 

at trial. Different counsel from the public defender’s office represented 

Mosley after the filing of the notice of appeal. The second counsel filed the 

petition to withdraw.
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status as parolee “before or during trial”).15 Accordingly, Mosley’s Brady 

claim fails.16 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/23/2017

____________________________________________

15 It further appears the parties may have had equal access to the 

information. See Grant, 813 A.2d at 730 (noting parties may have had 

equal access to evidence of witness’s past convictions and status as 

parolee).

16

 Whether Mosley has a viable ineffective assistance of counsel claim, 

which he could raise in a PCRA petition, is a question for another day. See

Grant, 813 A.3d at 730.