J. S25036/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

TYRIK VERNON, : No. 2170 EDA 2015

:

 Appellant :

Appeal from the Judgment of Sentence, October 19, 2004,

in the Court of Common Pleas of Philadelphia County

Criminal Division at No. CP-51-CR-0206571-2004

BEFORE: BENDER, P.J.E., RANSOM, J., AND FORD ELLIOTT, P.J.E. 

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JUNE 21, 2017

Tyrik Vernon appeals the judgment of sentence in which the Court of 

Common Pleas of Philadelphia County sentenced1 him to serve a sentence of 

71⁄2 to 15 years’ imprisonment for robbery along with concurrent sentences 

of 2 to 4 years for attempted murder, 2-4 years for aggravated assault, and 

1-2 years for firearms not to be carried without a license.2 After careful 

review, we affirm.

The pertinent procedural and factual history, as recounted by the trial 

court, is as follows:

 

1 Originally, appellant was sentenced to an aggregate term of 101⁄2 to 

21 years’ imprisonment with all sentences consecutive to one another. The 

trial court subsequently amended the sentences to run concurrently. 

2 18 Pa.C.S.A. §§ 3701, 2502, 2702, and 6106, respectively.
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After [appellant’s] sentencing, his counsel filed 

a timely notice of appeal to the Superior Court. 

Direct appeal was initially dismissed on August 10, 

2006 because counsel failed to file a brief. 

[Appellant] then filed a pro se PCRA petition on 

August 21, 2006. This was never addressed by the 

court and no attorney was ever appointed.

On March 28, 2011 [appellant] filed another 

PCRA petition. This one incorporated his 2006 

petition. Peter A. Levin, Esquire was appointed and 

he filed an amended PCRA petition on November 9, 

2012. One of his allegations is that trial counsel had 

been ineffective for failing to file Petitioner’s brief. 

Initially, Mr. Levin’s petition was dismissed for 

untimeliness without an evidentiary hearing but after 

appeal and remand, an evidentiary hearing took 

place and an appeal nunc pro tunc was granted 

after finding that court interference had prevented 

[appellant’s] 2006 PCRA timely pro se petition from 

being heard.

[Appellant] has filed a Rule 1925 Statement of 

Matters Complained Of and claims his conviction 

should be reversed because of unreliable and/or 

tainted identification. He also claims the verdict is 

against the weight of evidence. . . . 

. . . .

Complainant Kenneth Crosby testified that on 

October 3, 2003 he was walking on Diamond Street 

in North Philadelphia on his way to a friend’s house. 

At approximately 1:50 [p.m.], he saw [appellant] at 

the corner of 18th and Diamond in broad daylight 

and approached him on the street. Crosby asked 

[appellant] if he knew “where they sell weed.” They 

were approximately 10 inches apart from each other. 

[Appellant] told Crosby to follow him and the two 

walked together for about 5 minutes, spanning two 

blocks. [Appellant] walked on Crosby’s right side, 

approximately 6 inches from him. At about 

2:00 [p.m.], [appellant] stopped on nearby 

Page Street to make a phone call which lasted 
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approximately 2 minutes. Crosby stood and waited 

for [appellant] from about 2 to 3 feet away during 

the phone call.

Crosby and [appellant] were standing together 

on the 1500 block of Page Street when [appellant] 

pushed Crosby up against a car and pressed a silver 

gun against his stomach. Crosby testified he was 

able to see [appellant] close-up and unobstructed. 

[Appellant] demanded Crosby’s money. At first, 

Crosby said that he could not give him any because 

it was not his. [Appellant] then threatened to shoot 

Crosby in the stomach. Crosby then gave up $100. 

[Appellant] instructed Crosby to stand still and then 

told him to walk away. Crosby began to run away 

but several seconds later, [appellant] shot Crosby in 

the back. As [appellant] fled, the victim saw him run 

up Page Street and make a right.

Crosby talked to detectives at the hospital and 

was later shown a photo array at a police station. 

Based on his description, detectives showed Crosby 

approximately 30 pictures of men on a computer. 

The victim spent 10 minutes looking at pictures and 

identified [appellant]. Crosby remembered a black 

mark on the man’s head and [appellant’s] face. 

Crosby told a detective he was sure he identified the 

right person and the detective printed out a picture 

of [appellant] which Crosby signed. At trial, Crosby 

testified he was still sure.

Eyewitness Natasha Jenkins testified that on 

October 3, 2003, she also saw and heard [appellant] 

shoot Crosby on the 1500 block of Page Street. 

Jenkins was in the passenger seat of a car with her 

neighbor, Diane Washington returning from grocery 

shopping. The car was parked on the opposite side 

of the street approximately 15 feet from [appellant] 

and they were about to unload the car. Jenkins 

testified that she saw two men “tussling” and saw 

[appellant] demanding money. She saw [appellant] 

hit Crosby in the head with a gun. Seeing that a gun 

was involved, Jenkins told her neighbor to close the 

car door, and forget unpacking the groceries. Two 
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shots were fired and Jenkins saw [appellant] run 

west on Page Street. Jenkins testified that she saw 

[appellant’s] face.

Jenkins talked to the police approximately an 

hour after the shooting and gave a statement. She 

identified [appellant] as “about 5’6”, 5’7”, braids 

hanging from the back. He had on a red baseball 

cap, 76’ers jacket red and blue.” Police asked her to 

come to a police station to look at pictures and she 

was shown approximately 50 photos but could not 

make an identification that night.

On October 14, 2003[,] a detective visited 

Jenkins at her home. She was shown sixteen photos 

and identified a photo of [appellant] but said she 

wasn’t 100% sure. At trial she testified to being 

“85%-95%” sure. She testified she wasn’t certain 

because the man who committed the crime had 

braided hair at the time, while the man in the picture 

and [appellant] at trial did not. Nevertheless, 

Jenkins testified that the man in the picture had the 

same face as the man whom she saw shoot Crosby.

Jenkins’ neighbor and the driver of the car, 

Diana [sic] Washington, told the jury she had a clear 

view of what happened and who was involved. From 

about ten feet away, Washington saw two men 

struggling. She told [appellant] to “get off of him.” 

While Washington did not see a gun, she testified 

she heard two shots go off. After the first shot, 

Washington began to drive west on Page Street. 

She then heard another shot. She drove around the 

block, from Norris to 16th Street, and returned to 

Page Street where she saw Crosby had fallen on the 

street.

On the night of the shooting, Washington did 

not talk to police and was not forthcoming the next 

day when detectives visited her house. But ten days 

later, on October 14, 2003, detectives returned to 

her house and this time she took time and viewed a 

group of 8 photographs. She described Crosby’s 

assailant as a young man with braids, wearing a red 
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hat and a red shirt with number 3. She testified his 

braids hung out of his baseball cap. Washington 

identified a picture of [appellant] as the doer, and 

she signed the photo.

At trial, Washington testified police had not 

said anything to her when they showed her the 

pictures other than whether she could identify the 

guy she saw.

Trial court opinion, 8/22/16 at 1-4.

On October 19, 2004, the trial court conducted a sentencing hearing. 

At the commencement of the hearing, appellant’s attorney, 

Jeffrey Muldawer, Esq., brought to the attention of the trial court a pro se 

motion for extraordinary relief prepared by appellant in which appellant 

argued that the evidence was insufficient to support a conviction and that 

the verdict was against the weight of the evidence. The trial court denied 

the motion. 

Although the trial court imposed a sentence at the hearing with 

consecutive rather than concurrent terms, the docket indicates that 

sentencing was deferred until January 20, 2005. On that date, the trial 

court imposed the sentence from which appellant appeals.

Before this court, appellant contends that the verdict was against the 

weight of the evidence.

[T]he weight of the evidence is 

exclusively for the finder of fact who is 

free to believe all, part, or none of the 

evidence and to determine the credibility 

of the witnesses. An appellate court 

cannot substitute its judgment for that of 
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the finder of fact . . . thus, we may only 

reverse the lower court’s verdict if it is so 

contrary to the evidence as to shock 

one’s sense of justice. Moreover, where 

the trial court has ruled on the weight 

claim below, an appellate court’s role is 

not to consider the underlying question 

of whether the verdict is against the 

weight of the evidence, . . . rather, 

appellate review is limited to whether the 

trial court palpably abused its discretion 

in ruling on the weight claim.

Commonwealth v. Kim, 888 A.2d 847, 851 

(Pa.Super. 2005) (citations and quotations omitted). 

A motion for a new trial based on a challenge to the 

weight of the evidence concedes the evidence was 

sufficient to support the verdict. Commonwealth v. 

Davis, 799 A.2d 860, 865 (Pa.Super. 2002).

Commonwealth v. Jarowecki, 923 A.2d 425, 433 (Pa.Super. 2007).

Before addressing the merits of appellant’s argument, we must 

address the Commonwealth’s contention that appellant waived this issue. 

The Commonwealth asserts that the issue is waived because appellant did 

not file a post-sentence motion or motion for reconsideration until many 

years after his sentence became final. However, appellant made the claim 

concerning the weight of the evidence in his motion for extraordinary relief 

before the trial court on October 19, 2004. This court is satisfied that 

appellant preserved his claim. See Pa.R.Crim.P. 607(A).

Turning to the merits of the argument, appellant claims the verdict 

was against the weight of the evidence because the identification evidence 

was unreliable and conflicting, the witnesses made no identifications when 
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they were shown photographs but later identified appellant; no lineup as to 

identification was ever held, even though one was ordered at the preliminary 

hearing; there was conflicting testimony by the Commonwealth witnesses as 

to whether the assailant had braids; and defense witnesses testified as to 

never seeing appellant with braids.

In reviewing the propriety of identification evidence, 

the central inquiry is whether, under the totality of 

the circumstances, the identification was reliable. 

The purpose of a “one on one” identification is to 

enhance reliability by reducing the time elapsed after 

the commission of the crime. 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’ [sic] 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. Brown, 23 A.3d 544, 558 (Pa.Super. 2011) (en banc) 

(internal citations and quotation marks omitted).

Initially, appellant contends that the testimony of Kenneth Crosby 

(“Crosby”), the victim, was unreliable for multiple reasons and the accuracy 
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of his prior descriptions of his assailant is dubious. When Crosby initially 

described his assailant to the police, he stated that the assailant had braided 

hair that stuck out the back of his cap down his neck. (Notes of testimony, 

8/25/04 at 44.) However, during trial, Crosby testified that his assailant did 

not have braided hair and that he said that he did because he was “nervous;

I was in pain.” (Id. at 45.) Appellant asserts that Crosby gave an initial 

description of his assailant and then recanted that description at trial to 

better describe the person that he subsequently identified as his assailant, 

appellant.

Appellant further charges that Crosby was able to identify appellant in 

a photo array due to “a black mark on his head.” (Id. at 38.) However, 

Crosby did not include the black mark in his initial description made to the 

police. (Notes of testimony, 8/27/04 at 47.) Appellant asserts that Crosby 

would not have been able to see this alleged black mark at the time of the 

incident because it would have been covered by a cap. Appellant argues 

that Crosby attempted to untruthfully rehabilitate his earlier inconsistent 

description by trying to refer to another identifying characteristic of 

appellant.

Appellant points out other inconsistencies in Crosby’s testimony in that 

he testified that he had never seen appellant before (notes of testimony, 

8/25/04 at 50), but also stated that he had seen him once or twice. (Id. at 

51.) Additionally, appellant asserts that Crosby’s testimony was unreliable 
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and conflicting because he was a drug-selling and drug-using runaway who 

repeatedly changed his story regarding the description of appellant.

Regarding the reliability of Crosby’s identification of appellant based on 

the factors set forth in Brown, Crosby certainly had the opportunity to see 

his assailant as he testified that he talked to him and walked with him before 

the attack, and it stands to reason that he would take note of someone who 

robbed and shot him. Furthermore, Crosby testified that he was 

“101 percent sure” that appellant was his assailant. (Id. at 52.) While it is 

true that Crosby did describe appellant as having his hair in braids at the 

time of the attack, and he did not have braids in the photograph where 

Crosby identified appellant, this fact alone does not render the identification 

unreliable, even though a defense witness testified he had never seen 

appellant wear braids. See Commonwealth v. Maute, 485 A.2d 1138, 

1144 (Pa.Super. 1984) (Evidence of a conflict in evidence is not fatal to the 

Commonwealth’s case because the Commonwealth if not bound by 

everything its witnesses say, and the jury can believe, all, part, or none of 

the testimony.) Further, Diane Washington (“Washington”) also described 

the assailant with braids. Id. at 105. Given the totality of the 

circumstances, Crosby’s identification was sufficiently reliable to support the 

determination that appellant was the assailant. 

Appellant next contends that the identification made by another 

witness, Natasha Jenkins (“Jenkins”), was also conflicting and unreliable. 
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First, on the day of the incident, Jenkins could not identify the assailant 

when asked to look at pictures on a computer of possible perpetrators. 

However, she later identified appellant as the assailant when the police 

showed her two cards that contained 16 photographs on October 14, 2003. 

(Notes of testimony, 8/25/04 at 74-75.) Appellant characterizes it as 

“puzzling” that Jenkins could not initially make an identification but could 

11 days later. Further, Jenkins testified that she was only 85-95% sure of 

her identification of appellant as the assailant. Jenkins changed her 

description of the assailant from light to dark skinned. (Id. at 63, 80.) 

Jenkins also initially identified the assailant as shorter than the 5’11” that 

the parties stipulated was appellant’s height. (Id. at 80; 8/27/04 at 75.) 

Appellant argues that Jenkins’s identification was the product of 

suggestiveness, and her testimony was unreliable and conflicting.

With respect to Jenkins’s identification of appellant, she was able to 

view the perpetrator at the time of the crime and at fairly close range. 

Jenkins was not totally accurate in her description of appellant in terms of 

his height. Though not totally certain of her identification of appellant, she 

was approximately 90% certain. Although appellant asserts that the 

inconsistencies in her testimony were the result of suggestiveness by the 

police department, there is nothing in the record to support such a 

conclusion. Once again, despite some inconsistencies, a jury could find 

appellant guilty based on this testimony.
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Appellant also argues that the testimony of the third Commonwealth 

witness, Washington was also unreliable and conflicting in that she did not 

identify appellant until 11 days after the incident took place. She gave a 

description of the assailant as having braids hanging out the back of his 

baseball cap and a medium complexion. (Notes of testimony, 8/25/04 at 

105.) Despite that description, Washington identified appellant from a list of 

photographs even though the photo did not depict any braids. (Id. at 106.) 

Appellant also argues that this identification is the product of 

suggestiveness. Appellant asserts that the court in the preliminary hearing 

ordered another lineup which might have alleviated these reliability and 

consistency problems.

Similarly, with respect to Washington’s testimony, she witnessed the 

crime or at least some of the crimes as they occurred. She testified that she 

observed the incident from a close vantage point. As with Crosby’s initial 

description, Washington believed that braids were hanging out from under 

appellant’s cap. (Id. at 106.) Washington testified that she never told 

anyone she was not completely sure of the identification of appellant. (Id.

at 107.) As with the other witnesses, the inconsistencies in the descriptions 

were left to the jury to render its credibility determinations. Once again, 

appellant raises the issue of suggestiveness, but there is nothing in the 

record to support that conclusion. Similarly, it is unclear what a lineup 

would establish.
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As the identification testimony was sufficiently reliable and was found 

credible by the jury, the verdict is not so contrary to the evidence as to 

shock the conscience. Based on the record before this court, we do not find 

that the trial court abused its discretion when it declined to grant appellant’s 

post-trial motion concerning the weight of the evidence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2017