COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Annunziata 

Argued at Richmond, Virginia 

JACOB DANIEL AQUINO 

 MEMORANDUM OPINION* BY 

v. Record No. 3041-99-2 JUDGE LARRY G. ELDER 

 DECEMBER 19, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

James B. Wilkinson, Judge 

 Ali J. Amirshahi for appellant. 

 Thomas M. McKenna, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Jacob Daniel Aquino (appellant) appeals from a judgment of 

the Circuit Court for the City of Richmond convicting him of 

three counts of robbery, one count of attempted robbery, and 

four counts of using a firearm in the commission of a felony. 

He contends the Commonwealth's evidence was insufficient as a 

matter of law to identify him as the perpetrator of these 

crimes. We hold that the Commonwealth's identification evidence 

was not unreliable as a matter of law and was sufficient to 

prove appellant's guilt beyond a reasonable doubt. Accordingly, 

we affirm the judgment of the trial court. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
Background

 On May 21, 1999, around 3:00 a.m., Chris Kasper, Jason 

Sheldon, Suntek Chung, and Marilyn Brogan were walking home when 

they stopped to admire a fountain by the Richmond Public 

Library. A man walked up, asked about the fountain, then 

produced a revolver and instructed the four to throw their 

wallets to the ground. After Kasper, Sheldon, and Chung 

surrendered their money, the robber thanked them and ran off. 

 Kasper and Sheldon indicated that the robbery lasted 

between five and ten minutes. Kasper, Sheldon, and Chung each 

stated that he had an opportunity during the robbery to observe 

the perpetrator's face.1

 Within a week after the robbery, a detective showed the 

victims a six-photograph police lineup that included a 

photograph of appellant. Kasper and Sheldon identified 

appellant as the robber. Chung wavered between appellant and 

another person and eventually selected the other person. 

 At trial, Kasper, Sheldon, and Chung identified appellant 

as the robber. Although the victims admitted they had been 

drinking beer earlier that night, none indicated that he was 

intoxicated at the time of the robbery. 

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 Brogan was out of the country and did not testify at 

trial. 

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 Upon cross-examining each victim, appellant had his 

brother, Andrew Aquino (Andrew), enter the courtroom so he could 

be observed by the witness. 

 Kasper admitted it was "possible" that Andrew was the 

robber. He reiterated, however, that the robber looked like 

appellant as appellant appeared in the lineup photograph. And 

upon being shown a photograph of Andrew, Kasper stated that 

Andrew did not look like the robber. He further noted that 

appellant's appearance at trial was different from his 

appearance in the lineup photograph. 

 Sheldon initially denied the possibility that Andrew was 

the robber. He finally stated that it "could be possible" after 

appellant asked whether he was certain in his identification of 

appellant "beyond any doubt in your mind whatsoever." Upon 

looking at a photograph of Andrew on re-direct, Sheldon 

indicated that Andrew was not the robber, remarking "[t]his 

gentleman is much skinnier." 

 Chung did not waver in his identification of appellant at 

trial as the robber, and he was adamant that Andrew was not the 

perpetrator. 

Analysis

 "On appeal, 'we review the evidence in the light most 

favorable to the Commonwealth, granting to it all reasonable 

inferences fairly deducible therefrom.'" Archer v. 

Commonwealth, 26 Va. App. 1, 11, 492 S.E.2d 826, 831 (1997) 

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(citation omitted). "When such evidence leads to the conclusion 

of guilt beyond a reasonable doubt, and excludes every 

reasonable hypothesis of innocence, it is sufficient to support 

a finding of guilty." Avent v. Commonwealth, 209 Va. 474, 477, 

164 S.E.2d 655, 657 (1968). "This Court does not substitute its 

judgment for that of the trier of fact, and the trial court's 

judgment will not be set aside unless plainly wrong or without 

evidence to support it." Hunley v. Commonwealth, 30 Va. App. 

556, 559, 518 S.E.2d 347, 349 (1999) (citation omitted). 

 "A conviction based upon a mere suspicion or probability of 

guilt, however strong, cannot stand." Bridgeman v. 

Commonwealth, 3 Va. App. 523, 528, 351 S.E.2d 598, 601-02 

(1986). But "[t]he Commonwealth is not required to exclude the 

possibility that another may have committed the crime." Johnson 

v. Commonwealth, 15 Va. App. 73, 76, 422 S.E.2d 593, 594 (1992) 

(emphasis added), aff'd, 248 Va. 444, 448 S.E.2d 426 (1994); 

Parrish v. Commonwealth, 17 Va. App. 361, 365, 437 S.E.2d 215, 

217 (1993) (noting that the Commonwealth need not "negate every 

possibility" of innocence). The Commonwealth is "required only 

to establish guilt of the accused to the exclusion of a reasonable

doubt." Bridgeman, 3 Va. App. at 526-27, 351 S.E.2d at 600 

(emphasis added). 

 In determining the sufficiency of evidence to support a 

conviction where a witness' identification is challenged, we 

look to the reliability factors enunciated in Neil v. Biggers, 

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409 U.S. 188 (1972), as significant circumstances that may be 

considered along with other evidence. See Charity v. 

Commonwealth, 24 Va. App. 258, 262-63, 482 S.E.2d 59, 61 (1997). 

These factors include 

the opportunity of the witness to view the 

criminal at the time of the crime, the 

witness' degree of attention, the accuracy 

of the witness' prior description of the 

criminal, the level of certainty 

demonstrated by the witness at the 

confrontation, and the length of time 

between the crime and the confrontation. 

Biggers, 409 U.S. at 199-200. 

 "[E]vidence of a pre-trial identification is admissible and 

may be sufficient to overcome deficiencies existing in an 

in-court identification." Martin v. Commonwealth, 210 Va. 686, 

692, 173 S.E.2d 794, 799 (1970). 

An identification made by a victim or an 

eyewitness soon after a crime has been 

committed may be more objective and accurate 

and have greater probative value than one 

made later in court when unduly suggestive 

circumstances, if present, or the changed 

appearance of the defendant, might adversely 

affect the identifier's testimony. 

Moreover, the memory of a witness may fade 

. . . . 

Niblett v. Commonwealth, 217 Va. 76, 82, 225 S.E.2d 391, 394 

(1976). 

 Chung unequivocally identified appellant at trial as the 

robber and did not waver when asked whether it was possible 

Andrew was the culprit. Although Kasper and Sheldon, when 

pressed, admitted it was possible that Andrew was the robber, 

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neither recanted his identification of appellant from the photo 

lineup. Moreover, there was evidence that appellant's 

appearance had changed from the date of the robbery and the date 

of trial. 

 We cannot say that the Commonwealth's identification 

evidence was inherently unreliable. Nor can we say that the 

jury was plainly wrong in believing this evidence. Accordingly, 

the judgment of the trial court will not be disturbed. 

Affirmed.

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