Com. v. Snead, S. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SALEEM SNEAD
Appellant No. 3444 EDA 2015
Appeal from the Judgment of Sentence June 5, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0013827-2012
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED MAY 22, 2017
Saleem Snead appeals from the judgment of sentence of life
imprisonment that the trial court imposed after a jury found him guilty of
first degree murder, carrying an unlicensed firearm, carrying a firearm in
public in Philadelphia, and possessing an instrument of crime. We affirm.
Appellant and the victim, then seventeen-year-old Paris Talbert, were
engaged in an ongoing dispute. Over the course of several months,
Appellant tracked, chased, and threatened Mr. Talbert. On September 7,
2012, the dispute culminated in gunfire. At approximately 11 p.m. on the
day in question, Appellant found Mr. Talbert in Charles Finley Park,
Philadelphia. Upon locating the victim, who was sitting in the park with his
friend, then seventeen-year-old Donald Carter, III, Appellant opened fire on
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the two boys and fatally struck Mr. Talbert as he attempted to flee. Mr.
Carter escaped unharmed.
That evening, Mr. Carter was transported to the homicide unit, and
early the next day, he provided detectives with written and videotaped
statements identifying Appellant as the person who shot Mr. Talbert. The
detectives thereafter sought and received two search warrants for locations
where Appellant was thought to reside. At 6 a.m. on September 9, 2012,
the officers executed the first search warrant at a home on East Albanus
Street in Philadelphia. Upon entry, Appellant was discovered and
apprehended. Appellant’s birth certificate was recovered from the house,
but the search revealed no further evidence. Similarly, the execution of the
second search warrant yielded no evidence linked to Mr. Talbert’s murder.
Following his arrest, Appellant was transported to the homicide unit for
questioning. After being provided his Miranda1 rights, Appellant indicated
that he wished to supply the detectives with a statement without the aid of
counsel. He provided a written statement wherein he acknowledged his
constitutional rights, and alleged that he had been present for Mr. Talbert’s
murder, but that an accomplice, Keith Brandford, had killed the victim.
Subsequently, Appellant was charged with the aforementioned offenses.
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1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Appellant filed a pre-trial motion requesting that the court suppress his
inculpatory statements contending that they were the fruits of an illegal
arrest, or alternatively, that he had not been adequately apprised of his
constitutional rights. Appellant also entreated the court to suppress Mr.
Carter’s out-of-court identification, alleging that the police utilized an unduly
suggestive identification procedure. During pre-trial proceedings, the
Commonwealth asked to introduce evidence of prior bad acts, consisting of
two previous incidents where Appellant pursued Mr. Talbert, once while
carrying a firearm.
On June 1, 2015, the court held a hearing on the pre-trial motions,
and thereafter, it denied Appellant’s motion to suppress. The court
permitted the Commonwealth to proffer evidence of the previous encounters
between Appellant and the victim. The case proceeded immediately to a
jury trial. On June 5, 2015, the jury returned a verdict of guilty on all
counts, and the court immediately imposed a sentence of life in prison.
Appellant filed a timely post-sentence motion, which was denied by
operation of law on October 7, 2015. Trial counsel filed a motion to
withdraw, which was granted, and the court granted appeal counsel’s motion
to file an appeal nunc pro tunc. Appellant complied with the directives of
Rule 1925(b) and the court authored its Rule 1925(a) opinion. This matter
is now ready for our review.
Appellant presents five issues for our consideration:
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I. Did the lower court err by permitting the Commonwealth
to introduce evidence of Appellant’s prior bad acts in which
he sought out Talbert, though those prior bad acts were
irrelevant to the matters at issue and unduly prejudiced
[A]ppellant?
II. Did the lower court abuse its discretion by failing to grant
a mistrial when the Commonwealth published highly
prejudicial evidence to the jury regarding Appellant’s prior
gun conviction where the Commonwealth conceded the
evidence was inappropriate?
III. Did the lower court err in denying Appellant’s motion to
suppress his custodial statement, as it was given after an
illegal arrest and Appellant did not voluntarily waive his
right against self-incrimination prior to giving the
statement?
IV. Did the Commonwealth fail to prove that the single
photograph out-of-court identification procedure employed
was reliable and further was that procedure was wholly
unreasonable?
V. Did the lower court improperly allowed [sic] Carter to
testify as to hearsay statements of identification ostensibly
made by Talbert shortly before his death?
Appellant’s brief at 4.
As Appellant’s first and fifth issues pertain to the admission of
evidence, we consider them together. The trial court’s evidentiary rulings
are afforded great deference. Thus, “[w]e give the trial court broad
discretion, and we will only reverse a trial court’s decision to admit or deny
evidence on a showing that the trial court clearly abused its discretion.”
Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa.Super. 2015) (citation
omitted). An abuse of discretion “is not merely an error in judgment, but an
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overriding misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence of record.” Id.Appellant first assails the trial court’s decision to allow the
Commonwealth to offer evidence of his past interactions with the victim. We
observe,
Generally, evidence of prior bad acts or unrelated criminal
activity is inadmissible to show that the defendant acted in
conformity with those past acts or to show criminal propensity.
However, evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. In determining whether
evidence of prior bad acts is admissible, the trial court is obliged
to balance the probative value of such evidence against its
prejudicial impact.
Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa.Super. 2016) (internal
citation omitted); Pa.R.E. 404(b).
The trial court permitted the Commonwealth to offer evidence
pertaining to an encounter on March 3, 2012, where Appellant chased Mr.
Talbert while brandishing a firearm, and another incident on April 7, 2012,
where Mr. Talbert fled after observing Appellant driving towards him. The
court determined that this evidence was properly admitted to prove “motive,
identity of the shooter, and to establish the natural sequence of events
leading up to the murder.” Trial Court Opinion, 4/12/16, at 13. It noted
that the evidence supported that the parties were embroiled in an ongoing
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dispute, which directly established motive, and that the probative value of
such evidence outweighed any prejudicial effect. Id.Appellant first argues that the past acts were not probative of
Appellant’s motive since, although they evince an intent to seek out the
victim, they did not shed light on the motivation behind their quarrel. In
addition, Appellant maintains that the evidence did not identify Appellant as
the shooter, since the circumstances surrounding the prior encounters were
not sufficiently similar to those encompassing Mr. Talbert’s death to warrant
an exception to Rule 404(b). Finally, Appellant asserts that the evidence
was not sufficiently probative of the natural sequence of events as he
admitted that he was engaged in a dispute with the victim, and thus, that
evidence was cumulative and unnecessarily prejudicial.
We find the evidence of Appellant’s prior acts was admissible under the
res gestae exception, and, therefore, the trial court did not abuse its
discretion in allowing the relevant testimony. This Court previously
explained the res gestae exception in Commonwealth v. Brown, 52 A.3d
320 (Pa.Super. 2012). We stated, “where the distinct crimes were part of a
chain or sequence of events which formed the history of the case and were
part of its natural development (sometimes called “res gestae”
exception)[,]” the evidence may be admissible. Id. at 326. Moreover,
relying on Supreme Court precedent, we observed that “the ‘res gestae’
exception to the general proscription against evidence of other crimes, is
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also known as the ‘complete story’ rationale, i.e., the evidence of other
criminal acts is admissible to ‘complete the story of the crime on trial by
proving its immediate context of happenings near in time and place.’” Id.The res gestae exception is subject to a balancing test to ensure the
probative value of the evidence outweighs its prejudicial impact. Thus, we
consider factors such as the strength of the “other crimes”
evidence, the similarities between the crimes, the time lapse
between crimes, the need for the other crimes evidence, the
efficacy of alternative proof of the charged crime, and the
“degree to which the evidence probably will rouse the jury to
overmastering hostility.”
Id.Here, the probative value of the two prior instances where Appellant
sought out the victim clearly outweighed its prejudicial impact. Appellant
was convicted of murder after his ongoing dispute with the victim ended in
gunfire. Appellant was found to have stalked Mr. Talbert late at night in a
park near the victim’s home. The two contested incidents occurred months
prior to the shooting, and demonstrated Appellant’s settled desire to track
down and confront Mr. Talbert. The fact that Appellant admitted to
quarreling with Mr. Talbert does not render this evidence as cumulative, but
rather, it was a necessary means to inform the jury of the context, history,
and natural development of the hostility between Appellant and the victim.
In addition, evidence of the two past incidents was indispensable in
apprising the jury as to both the identity of the shooter and Appellant’s
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motive. Although Appellant conceded that he was present at the time of the
shooting, he denied firing the weapon. The evidence of the two men’s past
confrontations refuted Appellant’s claim by tending to show that Appellant,
rather than Mr. Branford, tracked Appellant to the park late at night with the
intent to kill him, and, thereafter, that he indeed shot Mr. Talbert to resolve
their differences. Hence, we find the trial court did not abuse its discretion
in permitting this evidence, and Appellant is not entitled to relief.
Appellant’s fifth claimed error involves the trial court’s decision to
permit Mr. Carter to testify regarding the statements made by the victim
immediately prior to his death. As noted above, our standard of review is an
abuse of discretion. Talbert, supra. Appellant directs our attention to the
following testimony by Mr. Carter, claiming it represents inadmissible
hearsay:
Prosecutor: Mr. Carter, did you have a chance to read the five
lines below, and this was from the morning of this incident or the
morning after this incident. I’d asked you earlier what you
remember [Mr. Talbert] saying when [Appellant] was walking
up. Reading this now, do you remember everything that he said
to you concerning what he said when [Appellant] walked up?
Mr. Carter: Yes.
Prosecutor: And what did he say?
Mr. Carter: He said, That’s Saleem.
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Appellant’s brief at 38; N.T. Trial, 6/2/15, at 89-90. Appellant posits that
Mr. Carter’s testimony was offered for the truth of the matter asserted, and
that not one of the enumerated exceptions to the hearsay rule apply.
Hearsay is any statement, “other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth
of the matter asserted.” Commonwealth v. Rayner, 153 A.3d 1049, 1057
(Pa.Super. 2016); Pa.R.E. 801(c). The trial court acknowledged that the
victim’s statement identifying Appellant prior to his shooting, as relayed to
the court by Mr. Carter, constituted hearsay. Nevertheless, it reasoned that
the statement was admissible pursuant to the present sense impression
exception to the hearsay rule contained in Pa.R.E. 803(1).
The rule against hearsay does not exclude evidence of a statement
made by a person “describing or explaining an event or condition, made
while or immediately after the declarant perceived it.” Pa.R.E. 803(1). The
trustworthiness of the declaration “depends upon the timing of the
statement . . . [it] must be made at the time of the event or so shortly
thereafter that it is unlikely that the declarant had the opportunity to form
the purpose of misstating his observation.” Commonwealth v. Gray, 867
A.2d 560, 571 (Pa.Super. 2005) (citation omitted).
Whether Mr. Talbert’s statement qualifies as a present sense
impression requires us to decide if it came so shortly after the events in
question that it is unlikely that he would have the opportunity to fabricate a
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lie. Here, Mr. Talbert stated “That’s Saleem,” as a figure approached him
and Mr. Carter in the park. Immediately thereafter, the assailant began
shooting. We find Mr. Talbert’s contemporaneous statement satisfies the
timing requirement of the present sense impression so as to be deemed
trustworthy. Thus, the trial court did not abuse its discretion in permitting
the victim’s observation.
In Appellant’s second issue, he argues that the lower court abused its
discretion when it failed to grant a mistrial after the Commonwealth
mistakenly published prejudicial evidence to the jury. The evidence in
question was contained in Appellant’s statement to police. The statement
was displayed on a screen, and the Commonwealth inadvertently included
the portion of the statement indicating Appellant had served time in prison.
We afford the trial court broad discretion in ruling on a motion for mistrial.
The court must determine
whether misconduct or prejudicial error actually occurred, and if
so, . . . assess the degree of any resulting prejudice. Our review
of the resulting order is constrained to determining whether the
court abused its discretion. Judicial discretion requires action in
conformity with the law on facts and circumstances before the
trial court after hearing and consideration. Consequently, the
court abuses its discretion if, in resolving the issue for decision,
it misapplies the law or exercises its discretion in a manner
lacking reason.
Commonwealth v. Jaynes, 135 A.3d 606, 615, (Pa.Super. 2016 (brackets
and citations omitted).
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Appellant contends that he suffered unfair prejudice when the
Commonwealth inadvertently published Appellant’s report that the murder
occurred “shortly after he was released from prison on a gun charge.”
Appellant’s brief at 22. Defense counsel objected and moved for a mistrial.
The court offered to provide the jury with an immediate curative instruction,
but defense counsel rejected this suggestion due to a concern that it would
highlight the prejudicial information. Instead, defense counsel requested
that the general prior bad acts limiting instruction be given with the jury’s
charge. Nevertheless, Appellant argues the limiting instruction was not
sufficient to overcome the prejudice flowing to Appellant by the erroneous
publication of his concession.
The trial court noted that the disputed portion of Appellant’s statement
“was only a small portion of what was displayed on the screen, and when
noticed, the statement was immediately removed from the screen and the
jury removed from the room.” Trial Court Opinion, 4/12/16, at 14. The
court reasoned that any prejudice caused by the Commonwealth’s mistake
was cured by the limiting instruction contained within the jury charge, since,
“it is not clear that the jury even saw the complained of portion of the
statement,” and thus, “there is no reason to believe that the jury did not
follow the court’s instructions.” Id. at 15.
Here, the Commonwealth mistakenly presented a prejudicial portion of
Appellant’s statement to the police. Following an objection by defense
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counsel, the court denied a motion for mistrial, but agreed to offer the
following jury charge:
Now, you’ve heard evidence that the defendant was involved in
acts not charged and for which he is not on trial. You must only
consider this evidence only for its bearing, if any, on the
question of the defendant’s intent, identification and motive, and
for no other purpose. You must not consider this evidence as
evidence of guilt of the crime for which the defendant is now on
trial.
You must not regard this evidence as showing the defendant is a
person of bad character or criminal tendency from which you
might be inclined to infer guilt.
N.T. Trial, 6/5/15, at 116-117.
Upon review of the record, we find that the trial court did not abuse its
discretion in denying Appellant’s motion for a mistrial. We agree with the
trial court that the offending statement was briefly presented to the jury.
Moreover, the statement was within a larger portion of text and was not
read into the record. When the mistake was discovered, the text had been
visible for only a short time and it was promptly removed. Further, the jury
charge directed it to consider any information elicited of Appellant’s past
behavior only for its bearing on his intent, identification, and motive. The
jury is presumed to follow such instructions. Commonwealth v. Mason,
130 A.3d 601, 673 (Pa. 2015) (citation omitted). Since the record does not
disclose that Appellant suffered prejudice from the brief reference to his
prior conviction, his second claim is without merit.
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Appellant’s third issue relates to the denial of his motion to suppress.
Our standard of review of a denial of a motion to suppress is limited to
determining whether the factual findings are supported by the
record and whether the legal conclusions drawn from those facts
are correct. [Since] the prosecution prevailed in the suppression
court, we may consider only the evidence of the prosecution and
so much of the evidence for the defense as remains
uncontradicted when read in the context of the record as a
whole. Where the record supports the factual findings of the
trial court, we are bound by those facts and may reverse only if
the legal conclusions drawn therefrom are in error.
Commonwealth v. Postie, 110 A.3d 1034, 1039 (Pa.Super. 2015) (citation
omitted).
Appellant’s argument is two-fold. First, he claims that he was arrested
inside his home without an arrest warrant or exigent circumstances in
contravention of his constitutional rights under the United States and
Pennsylvania constitutions. Moreover, Appellant maintains, the
Commonwealth failed to prove the arresting officers had probable cause for
the arrest since Appellant’s identification as the perpetrator of the crime was
corroborated by only a single eyewitness.
At the suppression hearing, the Commonwealth offered the testimony
of Detective James Burns, who was assigned to assist in the investigation of
Mr. Talbert’s murder. Detective Burns recounted his interview with Mr.
Carter during the morning following Mr. Talbert’s death. Detective Burns
related that Mr. Carter, who was seventeen years old at the time, identified
Appellant as the shooter by name and indicated that he had known him
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since sixth grade. N.T. Suppression Hearing, 6/1/15, at 18-19. Mr. Carter
provided a physical description and knew Appellant’s home neighborhood
and other places he frequented. Id. at 19-20. Upon being shown a
photograph of Appellant, Mr. Carter immediately recognized him as the
shooter. Id. at 20-21.
Based upon this information, two search warrants were obtained for
locations wherein Appellant was believed to reside. Detective Burns
reported that Appellant was discovered and apprehended while the detective
and other officers executed the first search warrant for a residence located
on West Albanus Street. Id. at 25. Appellant’s birth certificate was also
recovered from this location. Id. at 26.
Appellant relies on Commonwealth v. Williams, 396 A.2d 1177 (Pa.
1978), for the proposition that the Dorman factors2 militate in favor of
finding that his constitutional rights were violated by his warrantless arrest
within his home. We find that Williams is not dispositive, and thus, that the
Dorman factors are not applicable.
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2
In Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en banc),
the Circuit Court of the District of Columbia detailed factors that should be
analyzed in determining whether exigent circumstances permit the
warrantless arrest of a suspect within his own home. Those factors include:
a grave offense; reasonable belief that the suspect is armed; a clear
showing of probable cause; a strong reason to believe the suspect is present
in the premises being entered; a likelihood the suspect will escape if not
swiftly apprehended; peaceful entry; and time of entry. Id. at 392-393.
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In Williams, the court considered, inter alia, whether an arrest
following the warrantless entry into a suspect’s house violated the Fourth
Amendment. At the time of the police’s entry and apprehension of the
suspect, they had neither a search warrant nor an arrest warrant. The court
noted that it was a matter of first-impression whether “an arrest warrant is
required to effectuate a valid arrest inside an arrestee’s home.” Williams,
supra at 1179. The court relied upon the Circuit Court of the District of
Columbia’s analysis in Dorman v. United States, 435 F.2d 385 (D.C. Cir.
1970) (en banc), in determining that the suspect’s in-home warrantless
arrest, where the authorities entered the domicile for the purpose of
effectuating that arrest, was illegal.
Following Williams, supra, the United States Supreme Court clarified
the constitutional implications of an in-home arrest without an arrest
warrant, noting, “[the Dorman court] reasoned that the constitutional
protection afforded to the individual’s interest in the privacy of his own home
is equally applicable to a warrantless entry for the purpose of arresting a
resident of the house[.]” Payton v. New York, 445 U.S. 573, 588
(1980) (emphasis added). It ruled that, “the Fourth Amendment has drawn
a firm line at the entrance to the house. Absent existent circumstances, that
threshold may not reasonably be crossed without a warrant.” Id. at 590(emphasis added). Ultimately, the Supreme Court concluded that an “an
arrest warrant founded on probable cause implicitly carries with it the limited
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authority to enter a dwelling in which the suspect lives when there is reason
to believe the suspect is within.” Id. at 603. The High Court’s resolution in
Payton underscored that this Court’s analysis should first center upon
whether law enforcement’s entry into a suspect’s home is constitutionally
infirm before considering the legality of any ensuing arrest.
This Court has since clarified the holding in Payton, finding that
“[w]hile Payton stands for the proposition that the Fourth Amendment
prohibits a warrantless and nonconsensual entry into a suspect’s home in
order to make a routine arrest, it does not prohibit warrantless arrest from
occurring within a home.” Commonwealth v. Gelber, 592 A.2d 672, 678
(Pa.Super. 1991). In Gelber, we found that a warrantless arrest within the
defendant’s home did not implicate Payton since the officer could have
arrested the suspect outside the home, but entered it only to preserve
evidence within. Id. at 678-679. Thus, as in Gelber, the circumstances
herein are distinguishable from Williams, supra.
Instantly, Appellant does not contest the validity of the search warrant
used to gain entry to his house or the reliability of Mr. Carter’s identification
of him as the perpetrator of the crime. Instead, he maintains that the
Commonwealth cannot justify his warrantless arrest when viewed in light of
the Dorman factors, and that a single eyewitness is not sufficient to create
clear probable cause for the arrest without further corroboration. However,
in light of Payton, supra, Appellant erroneously applies the Dorman factors
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to analyzing whether Appellant’s arrest was unconstitutional, rather than
contesting the legality of the police’s entry into his house.
Further, Gelber, supra, explains that Payton does not bar a
warrantless arrest within a home, unless entry was secured in order to
effectuate that arrest. Here, the police entered Appellant’s residence
pursuant to a valid search warrant to discover evidence linked to Mr.
Talbert’s homicide. After doing so, the officers located and apprehended
Appellant within the home. Thus, the officers were legally within Appellant’s
residence at the time of his arrest.
Additionally, Appellant’s arrest was supported by probable cause. We
consider the totality of the circumstances in evaluating whether probable
cause exists to justify a warrantless arrest. Commonwealth v. Martin,
101 A.3d 706, 721 (Pa. 2014). We note that “[p]robable cause exists where
the facts and circumstances within the officer’s knowledge are sufficient to
warrant a person of reasonable caution in the belief that an offense has been
or is being committed,” and must be “viewed from the vantage point of a
prudent, reasonable, cautious police officer on the scene at the time of the
arrest guided by his experience and training.” Id. (citation omitted).
Since Mr. Carter provided a reliable eyewitness identification of
Appellant to Detective Burns, who was one of the arresting officers,
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Appellant’s arrest was supported by probable cause.3 Mr. Carter supplied
Appellant’s name and where he lived, and claimed to have known him for
years before identifying him in a picture provided by Detective Burns. As
such, Appellant’s arrest was supported by probable cause. See
Commonwealth v. Dozier, 99 A.3d 106 (Pa.Super. 2014) (finding
warrantless arrest supported by probable cause and stating “[w]e would
struggle to find a more detailed description of an assailant than an
immediate identification by name by a victim who knew the suspect for
many years[.]”); Commonwealth v. Simmen, 58 A.3d 811 (Pa.Super.
2008) (finding warrantless entry while investigating car accident permitted
by third party consent and subsequent warrantless arrest inside defendant’s
home supported by probable cause).
Second, Appellant alleges his inculpatory statements should have been
suppressed because he did not voluntarily waive his Miranda rights.
Appellant claims that he requested an attorney prior to offering a statement
to police, but that request was denied by Detective Burns. Appellant
emphasizes the following statement provided by Detective Burns at the
suppression hearing in support of this allegation:
certainly, like, he had some kind of reluctance with the idea of
signing anything or signing any statements. That didn’t last very
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3
We discuss the reliability of Mr. Carter’s identification of Appellant in the
text infra.
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long. It was a little of conversation back and forth about that,
where, eventually, he did agree to give a written interview.
Appellant’s brief at 33; N.T. Suppression Hearing, 6/1/15, at 37. Appellant
argues that the detective’s testimony lends credence to Appellant’s assertion
that he entreated the officer for an attorney prior to giving his statement.
We disagree.
The trial court credited Detective Burn’s testimony that Appellant
agreed to speak to him without a lawyer, and that he did not request a
lawyer thereafter. N.T. Suppression Hearing, 6/1/15, at 33; 35. Appellant
testified that he could not remember when he asked for a lawyer, but that
he was apprised of, and understood his Miranda rights. N.T. Suppression
Hearing, 6/2/15, at 44. Further, upon review of the certified record, we find
that Appellant acknowledged that he received, understood, and waived his
Miranda rights. Appellant admitted as much in his written statement to
police, wherein he signed and initialed his recognition of those rights prior to
providing his statement. As the evidence of record supports the suppression
court’s finding that Appellant waived his right to counsel, this claim does not
warrant relief.
Appellant’s fourth issue assails the trial court’s refusal to suppress Mr.
Carter’s out-of-court identification of Appellant. He concedes that Mr. Carter
provided Detective Burns with Appellant’s name and physical description, but
complains that the utilization of a single photograph was unduly suggestive.
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We remain mindful of our standard of review for a trial court’s denial of a
motion to suppress. Postie, supra. In addition, suppression of a pre-trial
identification is warranted where it prevents police misconduct.
Commowealth v. Lark, 91 A.3d 165, 168-169 (Pa.Super. 2014).
Suggestiveness is but one factor used to determine the admissibility of a
pre-trial identification as the court must consider the totality of the
circumstances in rendering a suppression ruling. Id. at 168. As such,
“[i]dentification evidence will not be suppressed unless the facts
demonstrate that the identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Commonwealth v. Stiles, 143 A.3d 968, 978
(Pa.Super. 2016) (citation omitted).
Here, we find that the police’s reliance on a single photograph to
confirm Appellant’s identify was not unduly suggestive. As noted above,
Detective Burns credibly testified that Mr. Carter provided him with
extensive information regarding the identity of Mr. Talbert’s assailant,
claiming that he had known Appellant “for a number of years.” N.T.
Suppression Hearing, 6/1/15, at 19. Mr. Carter provided additional
identifying information and at no point did he express doubt as to the
suspected offender. Detective Burns then supplied a single photo to
confirm, for the police’s sake, the identity of the shooter. When viewing Mr.
Carter’s statements under the totality of the circumstances, a single-photo
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could not have been “so impermissibly suggestive as to give right to a very
substantial likelihood of irreparable misidentification,” Stiles, supra, since
Mr. Carter had already identified Appellant and the photo was used merely
to substantiate the information offered by Mr. Carter. Hence, this claim
fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
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