Commonwealth v. Mbewe
203 A.3d 983
Pa. Super. Ct.2019Background
- Defendant Loti Mbewe was convicted after a bench trial of two counts of robbery (intent to inflict serious bodily injury) and conspiracy; acquitted of firearm and simple assault charges. He was sentenced to 3–6 years’ imprisonment plus 3 years’ probation.
- The victims, Elizabeth O’Leary and Ava Lewis, had contacted a seller (Joe Lewis) via Facebook to buy pills; Joe arrived with another man (later identified as Mbewe) and the two men robbed the women at gunpoint.
- O’Leary identified Mbewe in a photo array about one month after the incident and later in court; she wrote on the photo packet she was “95 percent” certain. Lewis could not identify Mbewe from the photos.
- Police prepared two photo arrays after learning the suspects’ names (Joe and Loti); Sergeant Baker (who suspected Mbewe from prior acquaintance) assembled arrays of persons resembling the suspected individuals and had Detective Kertis (who did not know the case) present them.
- Mbewe moved to suppress the out‑of‑court identification as impermissibly suggestive because the photo array didn’t match the victim’s physical description and was prepared based on the officer’s hunch; he also challenged the verdict as against the weight of the evidence.
- The trial court denied suppression and denied a weight‑of‑evidence new‑trial motion; the Superior Court affirmed, finding no undue suggestiveness and that O’Leary had an independent basis for identification.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the photo‑array identification should have been suppressed as unduly suggestive | Commonwealth: photo array complied with due process; photos did not make defendant stand out and an independent basis existed for ID | Mbewe: array was impermissibly suggestive because photos were compiled based on officer’s hunch and did not match victim’s description (height/weight) | Denied — array was not so impermissibly suggestive to create a substantial likelihood of misidentification; O’Leary had independent basis for ID |
| Whether the in‑court identification was tainted by out‑of‑court suggestiveness | Commonwealth: in‑court ID was independent and reliable | Mbewe: in‑court ID was induced by suggestive pretrial procedures and third‑party photo exposure | Denied — prosecution met burden that identification was not induced by post‑incident events; high degree of certainty and opportunity to observe supported reliability |
| Whether the verdict was against the weight of the evidence | Commonwealth: evidence (especially O’Leary’s testimony/ID) was credible and sufficient; trial court properly weighed credibility | Mbewe: witnesses’ IDs were unreliable (stress, cross‑race, delayed report, third‑party Instagram exposure) and testimony conflicted | Denied — trial court did not abuse discretion; evidence was not so tenuous as to shock the conscience |
| Whether police misconduct (array creation by an officer who suspected defendant) required suppression | Commonwealth: proper procedure used — creator did not present arrays and neutral officer administered them; assembling similar‑looking photos is proper | Mbewe: Baker’s reliance on a hunch made the array suggestive regardless of who showed it | Denied — assembling photos resembling the suspected person (rather than fitting the victim’s abstract description) is permissible and the administrator was neutral |
Key Cases Cited
- Commonwealth v. Kemp, 195 A.3d 269 (Pa. Super. 2018) (standard of review for suppression rulings)
- Commonwealth v. Jones, 988 A.2d 649 (Pa. 2010) (appellate review of suppression: review legal conclusions de novo when they rest on alleged legal error)
- Commonwealth v. Carson, 741 A.2d 686 (Pa. 1999) (due‑process reliability of out‑of‑court identifications assessed under totality of circumstances)
- Commonwealth v. Fisher, 769 A.2d 1116 (Pa. 2001) (photo lineups are not unduly suggestive when suspect’s photo does not stand out and photos share similar facial characteristics)
- Commonwealth v. Fulmore, 25 A.3d 340 (Pa. Super. 2011) (permissible to compile arrays of individuals resembling a suspected person rather than matching a victim’s post‑incident abstract description)
- In re Love, 646 A.2d 1233 (Pa. Super. 1994) (lack of exact match between photos and victim’s description does not by itself render the array impermissibly suggestive)
- Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013) (standard for appellate review of weight claims; trial court’s discretion to grant new trial)