J-S64043-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STEVEN WOODSON, 

Appellant.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2419 EDA 2017

Appeal from the Judgment of Sentence, June 15, 2017,

in the Court of Common Pleas of Philadelphia County,

Criminal Division at No(s): CP-51-CR-0001287-2015.

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED JANUARY 10, 2019

Steven Woodson appeals from an aggregate judgment of sentence of 

40 to 80 years’ incarceration, after a jury convicted him of attempted rape,1

aggravated assault,2involuntary deviate sexual intercourse,3robbery,4

aggravated indecent assault,5 and sexual assault.6 Woodson asserts that (1) 

the Philadelphia Police Department violated his rights of privacy under both 

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1 18 Pa.C.S.A. § 901; 18 Pa.C.S.A. § 3121.

2 18 Pa.C.S.A. § 2705.

3 18 Pa.C.S.A. § 3123.

4 18 Pa.C.S.A. § 3701.

5 18 Pa.C.S.A. § 3125.

6 18 Pa.C.S.A. § 3124.1.
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the Constitution of the United States and the Constitution of the 

Commonwealth of Pennsylvania, (2) the trial court improperly instructed the 

jury regarding identity testimony, and (3) his sentence is excessive. For the 

reasons below, we affirm.

On New Year’s Day 2015, a woman was walking through an open-air 

parking garage at around 11:00 am. Upon exiting an elevator on one of its 

higher levels, she encountered Woodson, a total stranger, who greeted her 

with a hello.

Once her back was turned, Woodson attacked. He covered her mouth 

and pressed into her back something that felt like a gun. Woodson choked 

and beat her, to the point that she feared he was going to kill her. She passed 

out but survived.

The woman regained consciousness while Woodson was still robbing 

her. Unsurprisingly, she suffered severe pain. She testified, “I remember a 

gust of air filling my lungs, and I remember feeling vomit and blood at the top 

of my throat,” describing it as a dreamlike state. N.T., 3/2/17, at 12-13.

The woman found herself facedown, between parked cars. She looked 

over and saw Woodson rummaging through her purse. When she looked up 

at Woodson’s face, he became enraged and resumed savagely beating her. 

He grabbed her, dragged the woman in front of the parked cars, and pulled 

clumps of hair from her scalp. He threatened “that he was going to make sure 

she couldn’t see.” Trial Court Opinion, 10/2/17, at 2.
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Next, Woodson told her to strip. She begged him not to rape her. He 

sexually assaulted her, vaginally and anally.

Fortunately, Angela and Eric Wilson, a married couple, happened to be 

driving through that parking garage. As their car passed, the woman escaped 

Woodson’s grasp and ran, naked, into their car. 

Woodson fled, and Mr. Wilson gave chase. Mrs. Wilson and the woman

waited in the car and called 911.

Dispatch radioed for all officers to be on the lookout for a six-foot-tall, 

black male, wearing blue jeans, white sneakers, a black jacket, and a black 

hat with an orange stripe, who was heading northbound on 17th Street. Two 

or three minutes later, Officer Frank Binns saw Woodson, a six-foot-tall, 

African-American, walking north on 17th Street, wearing blue jeans and white 

sneakers. But he had no coat or hat, which was particularly odd, given that 

it was a chilly January morning.

Suspicious, Officer Binns stopped Woodson for questioning. The suspect

couldn’t get his story straight. First, he said he was coming from a nearby 

hospital. Then, he changed his story; he was going to it. Plus, Woodson had 

no identification and provided the police with two fake names. While searching

their database for his aliases, the officers received additional information by 

radio that the assailant had a “scruffy beard.” N.T., 3/1/17, at 12. Woodson 

had matching facial hair. Moreover, investigators soon recovered the black 

jacket and black-and-orange hat, both abandoned behind some shrubbery, 

about 25 feet away.
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Next, police brought Eric Wilson to see if he could identify Woodson as 

the attacker. Mr. Wilson was “not sure.” N.T., 3/1/17, 14, 24. They also 

brought the woman, now riding in a squad car, down and asked her to identify 

Woodson. She refused to look at him, because of her physical and emotional 

pain. Instead, the woman insisted the officers take her to the hospital. They 

obliged.

Officer Binns arrested Woodson on suspicion of the assault, attempted 

rape, and robbery and to identify him accurately. Before leaving the scene, 

the policeman searched Woodson’s person and removed two credit cards. He 

placed them into an opaque, plastic bag.

After Woodson arrived at the police station, investigators determined 

his true name. Also, Special Victims’ Unit (“SVU”) Detective Brian Meissler 

opened the plastic bag to see who owned the credit cards. One of them bore

the woman’s name.

About a month later, after she was out of the hospital, the woman went 

to the jail for a line-up. She immediately identified Woodson as her attacker. 

Before trial, Woodson moved to suppress the woman’s credit card. A 

suppression hearing occurred; the court, finding no constitutional violation,

admitted the woman’s credit card into evidence; and the jury convicted. 

The trial court imposed an aggregate sentence of 40 to 80 years of 

incarceration and denied a post-sentence motion. Woodson timely appealed.

He raises three issues in his brief. First, he claims the trial court abused 

its discretion by not giving a jury instruction on eyewitness identification under 
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Commonwealth v. Kloiber, 106 A.2d 850 (Pa. 1954). See Woodson’s Brief 

at 6. Second, Woodson asserts Detective Meissler violated his constitutional 

rights when he opened the opaque, plastic bag to read the names on the credit 

cards that the police had taken at the time of arrest. Id. Third, he asks this 

Court to review the discretionary aspects of the sentence that the trial judge 

imposed; he believes that sentence is excessive. Id. at 7. We shall address 

his second issue first, which will render his first issue moot. We will deny the

request to review the discretionary aspects of his sentence.

Woodson believes the Philadelphia Police Department lacked probable 

cause to take him into custody, and, therefore, Detective Meissler had no 

constitutional authority to open the opaque, plastic bag and read the names 

on the two credit cards. Id. at 48. He claims that he was in a custody from 

the moment Officer Binns first approached him on 17th Street, but the trial 

court only found reasonable suspicion at that juncture – a constitutionally 

insufficient quantum of suspicion to justify a custodial detention. Id. In the 

alternative, he argues that, if we find the initial interaction between Officer 

Binns and him to have been an investigative stop, then subsequent events 

dispelled any prior reasonable suspicion that he was the attempted rapist. Id. 

Thus, under both scenarios, Woodson asserts that the police had no grounds 

to take him to their station house, seize the two credit cards, and read the 

names on them.

The Commonwealth thoroughly rebuts Woodson’s theory in its brief:
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Following the denial of a suppression motion, a reviewing 

court must consider the prosecution evidence at the 

suppression hearing, and so much the evidence for the 

defense, as when fairly read in the context of the record as 

a whole, remains uncontradicted. Commonwealth v. 

Smith, 836 A.2d 5, 10 (Pa. 2003). The record must be 

viewed in the light most favorable to the Commonwealth as 

the prevailing party. Commonwealth v. Rickabaugh, 706 

A.2d 826, 833 (Pa. Super. 1997). Where the suppression 

court’s factual findings are supported by the record, a 

reviewing court may reverse only if the suppression court’s 

legal conclusions are erroneous and there is no other 

legitimate basis for admitting the challenged evidence. 

Commonwealth v. Laatsch, 661 A.2d 1365, 1367 (Pa. 

1995). Under this standard, [Woodson] cannot prevail.

. . . After [Woodson] was taken into custody, officers placed 

credit cards that were recovered from his person inside a 

storage bag for safekeeping. That bag was later opened by 

a detective after [Woodson] was identified as wanted on an 

outstanding bench warrant. Obviously, [Woodson] had no 

privacy interest in a bag that the police themselves had 

supplied. Thus, [his] challenge to the detective’s act of 

removing the bag is fundamentally misguided. Cf.

Commonwealth v. Hall, 554 A.2d 919, 921-22 (Pa. Super. 

1989) (no warrant is necessary when, at the police station, 

officers inspect items that were previously seized at the time 

of arrest) . . .

Seizures are classified as investigative detentions (which 

require only a reasonable suspicion that criminal activity is 

afoot) and custodial detentions (which require probable 

cause). E.g., Commonwealth v. Bennett, 827 A.2d 469, 

477 (Pa. Super. 2003). Here, upon initially encountering 

[Woodson], the police acted appropriately by detaining him 

for a brief period in order to conduct an investigation. 

Moreover, prior to taking him into custody, they obtained 

additional information that supplied the requisite probable 

cause to arrest him.

Officer Frank Binns received a radio bulletin based on 

information from a named civilian witness. It reported a 

rape by a six foot tall black male in blue jeans and white 

sneakers with a black jacket and a black hat with an orange 
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stripe. It also specified that the perpetrator was fleeing 

northbound from Callowhill Street, on 17th Street. 

Within three minutes, Officer Binns observed [Woodson] 

proceeding northbound a short distance away on 17th 

Street. He was the only person on the street and fit the 

broadcast description – except that he was not wearing a 

coat or hat. The absence of outer clothing was particularly 

noteworthy given that it was a very cold day in January. 

Thus, the officers could not ignore that defendant may have 

abandoned his outer wear while on the run in an effort to 

avoid detection. See In the Interest of D.M., 727 A.2d 

556, 558 (Pa. 1999) (upholding stop based on general 

description close to time and place of crime reported by 

civilian witness); Commonwealth v. Sheridan, 437 A.2d 

44, 46 (Pa. Super. 1981) (upholding stop although suspect 

was not wearing a hat or the same type of coat reported in 

a radio bulletin).

What happened next only increased the officer's concern. 

[Woodson] first told the police that he was coming from

Hahnemann Hospital. Then he switched gears and said he 

was going to Hahnemann Hopital. When asked for 

identification, [Woodson] (who was in his thirties) claimed 

that he had “never had an ID as an adult” and provided two 

different inconsistent names. Meanwhile, police received a 

supplemental radio report that the perpetrator had a 

“scruffy beard;” sure enough, defendant had a scruffy beard 

as well. Additionally, they learned that the missing black 

jacket and black hat with an orange stripe had been 

recovered approximately 25 feet from where defendant had 

been sighted. 

“[R]esponses by the suspect which the officer knows to 

be false, or which are implausible, conflicting, evasive, or 

unresponsive may well constitute probable cause when 

considered together with [the officer’s] prior suspicions.” 3 

W. LaFave, Search and Seizure, § 3.6(f) at 449-50 (5th ed. 

2012) (footnotes with case citations omitted). That was the 

case here. See Commonwealth v. Norris, 499 A.2d 644, 

646 (Pa. Super. 1985) (combination of furtive conduct and 

resemblance to description of perpetrator triggered 

probable cause). See generally Commonwealth v. 

Thompson, 985 A.2d 928, 940-41 (Pa. 2009) (probable 

cause deals with the factual and practical considerations of 
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everyday life upon which reasonable and prudent men act); 

Commonwealth v. Quiles, 619 A.2d 291, 298 (Pa. Super. 

1993) (en banc) (“Probable cause exists when criminality is 

one reasonable inference; it need not be the only, or even 

the most likely, inference”).

[Woodson] emphasizes that an eyewitness – apparently, 

Good Samaritan, Eric Wilson – failed to identify him upon 

being brought to the scene. That witness simply stated, 

however, that he was “not sure” whether or not defendant 

was the person who had fled after assaulting [the survivor]. 

This remark was in no way exculpatory; it did not negate 

the probable cause that had arisen from other factors.

[Woodson] also notes that Officer Binns referred to 

taking him into custody to find out “who he was.” The officer 

clarified, however, that he believed he could be “the doer 

for the rape in progress.” In any event, the legality of a 

search or seizure is measured by an objective test and does 

not depend on the officer's subjective motivations or state 

of mind. Commonwealth v. Foglia, 979 A.2d 357, 362 

(Pa. Super. 2009) (en banc).

In sum, the totality of the circumstances supplied 

probable cause to believe that defendant was implicated in 

the assault. Therefore, he could be arrested and searched 

incident to arrest. Commonwealth v. Rickabaugh, 706 

A.2d at 836. It follows that the credit cards on his person –

one of which bore the [survivor’s] name – were lawfully 

recovered.7

Commonwealth’s Brief at 10-14 (emphasis and footnote in original; citations 

to the record omitted).

We agree with the Commonwealth’s well-reasoned arguments above 

and adopt them as the analysis of this Court. Thus, we affirm the trial court’s 

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7 Moreover, after apprehending [Woodson], police learned that he had an 

outstanding bench warrant for indecent exposure. N.T., 3/1/17, 30. See 

Utah v. Strieff, ___ U.S. ___, 136 S.Ct. 2056 (2016) (taint from illegal 

seizure was too attenuated to support the exclusion of evidence once police 

learned that the suspect had an outstanding arrest warrant) . . . .
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order denying suppression of the survivor’s credit card, which Woodson had 

in his possession only a few minutes after the crimes were committed.

Because the Commonwealth showed that damning evidence to the jury 

on the last day of trial, we need not reach the merits of Woodson’s first 

appellate issue – i.e., whether the trial court should have given the Koilber

instruction he requested. Even if we were to agree with Woodson, the error 

was harmless, because his possession of the survivor’s credit card, standing 

alone, clearly identified him as the perpetrator. 

The only explanation for him having the survivor’s credit card is obvious: 

he is guilty beyond any reasonable doubt. The Commonwealth could have 

tried and won this case without the survivor identifying Woodson. Therefore, 

we decline to decide his first claim of error, because it would not merit a new 

trial, regardless of how we might rule. We thus dismiss Woodson’s first issue 

as moot.

Lastly, we deny Woodson’s application for allowance of appellate review 

of the discretionary aspects of sentencing, because he has failed to raise a 

substantial question. 

Challenges to the discretionary aspects of sentencing do not 

entitle an appellant to review as of right. Commonwealth 

v. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An 

appellant challenging the discretionary aspects of his 

sentence must invoke this Court’s jurisdiction by satisfying 

a four-part test: (1) whether appellant has filed a timely 

notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether 

the issue was properly preserved at sentencing or in a 

motion to reconsider and modify sentence, see Pa.R.Crim.P. 

[720]; (3) whether appellant's brief has a fatal defect, 
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Pa.R.A.P. 2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate 

under the Sentencing Code, 42 Pa.C.S.A. § 9781(b). 

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 

2006).

Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011). In this 

instance, there is no question that Woodson has satisfied prongs one through 

three of the test for invoking our appellate jurisdiction. We therefore proceed 

directly to the fourth prong: whether Woodson has presented a substantial 

question.

Woodson argues that the trial court imposed a “de facto life sentence” 

that “is excessive under the circumstances. The sentence imposed in this 

matter is thus contrary to the fundamental norms which underlie the 

sentencing process, and inconsistent with the Sentencing Code.” Woodson’s 

Brief at 55. However, Woodson’s statements in this regard are conclusory and 

fail to explain what portion of the Sentencing Code with which the sentence 

was inconsistent or how it ran contrary to sentencing norms.

He goes on to say that the “failure to consider mitigating factors, failure 

to address the rehabilitative needs of Mr. Woodson, and fact that the 

sentences are ordered to be served consecutively despite the fact that they 

occurred simultaneously, raises a substantial question that this sentence 

which will incarcerate Mr. Woodson for a the remainder of this natural life (i.e., 

until age 135) is a deviation from sentencing norms.” Id. He cites no case 

law to support those statements.
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This Court has previously held that such unsubstantiated protestations 

are not substantial questions:

It is settled that this Court does not accept bald 

assertions of sentencing errors. See Commonwealth v. 

Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). When 

we examine an appellant’s Rule 2119(f) statement to 

determine whether a substantial question exists, “[o]ur 

inquiry must focus on the reasons for which the appeal is 

sought, in contrast to the facts underlying the appeal, which 

are necessary only to decide the appeal on the merits.” 

Commonwealth v. Ahmad, 961 A.2d 884, 886–87 (Pa. 

Super. 2008) (quoting Commonwealth v. Tirado, 870 

A.2d 362, 365 (Pa. Super. 2005)). A Rule 2119(f) statement 

is inadequate when it “contains incantations of statutory 

provisions and pronouncements of conclusions of law[.]” 

Commonwealth v. Bullock, 868 A.2d 516, 528 (Pa. 

Super. 2005) (citation omitted).

Here, Appellant asserts in his Rule 2119(f) statement:

[T]he [trial] court imposed both aggravated range 

sentences and standard guideline range sentences. It 

ordered that each sentence, twelve in total, run 

consecutive to one another. As a result, the aggregate 

minimum judgment of sentence was over eleven 

years. At the time the trial court imposed its amended 

sentencing order, [Appellant] was seventy years of 

age. The trial court's sentence is in effect a de facto 

life sentence on an individual who cannot pose any 

threat to society due to both the loss of his license and 

his age.

Appellant’s Brief at 27. Based on Appellant’s 2119(f) 

statement, we conclude that he has failed to raise a 

substantial question. 

Appellant’s excessiveness claim is premised on his 

argument that the trial court imposed consecutive 

sentences and failed to consider his mitigating 

circumstances, such as his age and loss of license. 

Specifically, Appellant claims that, because the trial court 

ordered his sentences to run consecutively, his aggregate 

sentence of 133 to 266 months in prison was excessive. We 
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consistently have recognized that excessiveness claims 

premised on imposition of consecutive sentences do not 

raise a substantial question for our review. See 

Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. 

Super. 2015) (en banc) (stating, “[a] court’s exercise of 

discretion in imposing a sentence concurrently or 

consecutively does not ordinarily raise a substantial 

question[.]”), appeal denied, 633 Pa. 774, 126 A.3d 1282 

(2015); see also Commonwealth v. Ahmad, 961 A.2d 

884, 887 n.7 (Pa. Super. 2008); Commonwealth v. Pass, 

914 A.2d 442, 446–47 (Pa. Super. 2006). Additionally, 

Appellant claims that the trial court failed to consider his 

mitigating circumstances, specifically his “advanced” age of 

over seventy years. Appellant’s Brief at 50. In 

Commonwealth v. Eline, 940 A.2d 421 (Pa. Super. 2007),

we concluded that an appellant’s argument that “the trial 

court failed to give adequate consideration to [his] poor 

health and advanced age” in fashioning his sentence does 

not raise a substantial question. Eline, 940 A.2d at 435. In 

so concluding, we explained that “[t]his court has held on 

numerous occasions that a claim of inadequate 

consideration of mitigating factors does not raise a 

substantial question for our review.” Id. (citation omitted); 

see Commonwealth v. Disalvo, 70 A.3d 900 (Pa. Super. 

2013) (citations omitted) (“This Court has held on numerous 

occasions that a claim of inadequate consideration of 

mitigating factors does not raise a substantial question for 

our review.”); see also Commonwealth v. Berry, 785 

A.2d 994 (Pa. Super. 2001) (explaining allegation that 

sentencing court failed to consider certain mitigating factor 

generally does not raise a substantial question); 

Commonwealth v. Cruz–Centeno, 447 Pa.Super. 98, 668 

A.2d 536, 545 (1995) (“[a]n allegation that a sentencing 

[judge] ‘failed to consider’ or ‘did not adequately consider’ 

certain factors does not raise a substantial question that the 

sentence was inappropriate,”), appeal denied, 544 Pa. 

653, 676 A.2d 1195 (1996); Commonwealth v. Bershad, 

693 A.2d 1303, 1309 (Pa. Super. 1997) (finding absence of 

substantial question where appellant argued the trial court 

failed to adequately consider mitigating factors and to 

impose an individualized sentence). Consistent with the 

foregoing cases, we conclude that Appellant failed to raise a 

substantial question with respect to his excessiveness claim 
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premised on the imposition of consecutive sentences and 

inadequate consideration of mitigating factors.

Commonwealth v. Radecki, 180 A.3d 441, 468-469 (Pa. Super. 2018).

Applying Radecki, we decline to assert appellate jurisdiction over the 

discretionary aspects of the sentence, because Woodson’s Pa.R.A.P. 2119(f) 

statement does not demonstrate a substantial question for our review. Thus,

we will not address the merits of this third and final claim of error.

Judgment of sentence affirmed.

Judge Bowes concurs in the result.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/10/19