Com. v. Davis, M. ( 2016 )

J-A12033-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARKEL DAVIS,
Appellant No. 2489 EDA 2014
Appeal from the Judgment of Sentence August 8, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014344-2013
BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 09, 2016
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Philadelphia County following Appellant’s conviction by a
jury on the charges of aggravated assault, carrying a firearm without a
license, carrying firearms in public in Philadelphia, possessing an instrument
of crime, and conspiracy.1 Appellant contends (1) the evidence was
insufficient to sustain his convictions; (2) the suppression court erred in
failing to suppress the victim’s out-of-court identification of Appellant as the
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1
18 Pa.C.S.A. §§ 2702(a)(1), 6106(a)(1), 6108, 907(a), and 903(c),
respectively. The jury acquitted Appellant on the charges of attempted
murder, 18 Pa.C.S.A. § 901(a), and conspiracy (to commit attempted
murder), 18 Pa.C.S.A. § 903(c).
*Former Justice specially assigned to the Superior Court.
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shooter; and (3) the trial court erred in failing to give a Kloiber2
instruction.3 We affirm.
The relevant facts and procedural history are as follows: Following the
shooting of Enrico Lofton (“Lofton”), Appellant was arrested, and, on March
19, 2014, he filed a counseled, pre-trial motion seeking, inter alia, to
suppress Lofton’s out-of-court identification of Appellant as the shooter.
Specifically, Appellant alleged the circumstances revealed that Lofton did not
observe the person who shot him, and Lofton chose Appellant’s photo from a
photo array solely because of unnecessarily suggestive police procedures.
See Appellant’s Motion, filed 3/19/14, at 5-8.
On May 5, 2014, the suppression court held a hearing, at which Lofton
and Detective John Landis, the officer who had conducted the photo array,
testified. Specifically, Lofton testified that, on September 9, 2013, he was
shot. N.T., 5/5/14, at 21-22. He indicated that, two weeks prior to the
shooting, his paramour’s mother talked to him about her fifteen-year-old
son, Carlos, selling illegal drugs. Id. at 22-23. She asked Lofton to talk to
Carlos, and after he did so, Carlos took him to Mifflin Street during the
daylight hours and pointed out the two men for whom he was selling drugs.
Id. at 23-24. Lofton approached the two men, stood face to face with them,
and told them to leave Carlos alone. Id. at 24-25. The men agreed;
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2
Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954).
3
We have renumbered Appellant’s issues for ease of discussion.
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however, during the evening of September 9, 2013, Lofton saw the two men
with Carlos outside of Carlos’ house. Id. at 26-28. Lofton testified that, in
the street where there were lights, he exchanged words with the two men,
whose faces were not covered. Id. at 28, 35, 45. He indicated the two men
were disrespecting him, and after about five minutes, the men started to
ride off together on bikes but within a few seconds one of them shot him.
Id. at 29, 45.
After he was shot, the police took him to the hospital, and they
showed him two photo arrays. Id. at 30-31. Lofton relevantly testified as
follows regarding the photo arrays:
[ADA]: Do you remember how many photo arrays they
showed you?
THE COURT: Why don’t you explain what a photo array is.
[ADA]: So a photo array is a piece of paper with eight
pictures on it.
[LOFTON]: I know.
[ADA]: You know. Do you remember if from the first
photo array [ ] you identified anybody?
[LOFTON]: I really don’t remember. I was a little
medicated. Percocet.
[ADA]: Do you remember recognizing faces?
[LOFTON]: Yeah.
[ADA]: Do you remember if you identified the person that
was the shooter?
[LOFTON]: Yeah.
[ADA]: And did you identify the other person that was out
there as well?
[LOFTON]: Yeah.
[ADA]: Did you know either of their names?
[LOFTON]: No.
[ADA]: And did you—how did you memorialize your
identification? In other words, did you circle anything? Did you
write your name? Do you remember that?
[LOFTON]: I just circled the picture. That was it.
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[ADA]: Okay.
***
[ADA]: Did you circle a picture in each of the photo arrays
that you were shown?
[LOFTON]: Yeah.
[ADA]: And that was shown to you by Detective Landis
and Detective Ferry?
[LOFTON]: Yeah.
[ADA]: Did they say anything else to you when they
showed you those photo arrays?
[LOFTON]: That was it. They showed me the photos to
identify anybody that was out there and circle the picture.
[ADA]: And how sure were you that those were the two
people that were out there and shot at you?
[LOFTON]: I’m good with faces.
***
THE COURT: Did the police tell you who to identify?
[LOFTON]: No.
Id. at 30-32.
On cross-examination, Lofton admitted that, when he was shot, he
was on probation for prior drug dealing convictions. Id. at 34-35. Lofton
indicated that he was shot in the street, and he denied that he was shot in
an alley. Id. at 35. He denied telling the police that both men involved in
the shooting had beards. Id. at 36. However, he indicated he told the
police that one man was heavy set with brown skin and a beard, while the
other man was skinny with light skin. Id. at 43.
Lofton testified that, after he gave a description of the men to the
police, they returned with photo arrays, and when the police showed him the
photo arrays, they simply said “identify anybody that was out there.” Id. at
36-37, 44. Lofton admitted he looked at the photo arrays for about fifteen
minutes before he circled the photos of Appellant and his cohort, Nafeese
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Turner (“Turner”); however, he explained that he was medicated. Id. at 38-
39. Lofton indicated that, during the time he looked at the photo arrays, the
police just said, “identify anybody that was out there.” Id. at 38. After
Lofton circled Appellant’s and Turner’s photos, the police asked him if he
“was sure,” to which Lofton replied, “Yeah.” Id. at 43. Lofton denied that,
prior to circling the photographs, the police mentioned the fact he was being
charged with new drug crimes. Id.
On redirect-examination, Lofton admitted that he was guessing as to
the length of time he looked at the photo arrays before choosing Appellant’s
and Turner’s photos. Id. at 46-47. He noted he was sluggish from the
medication. Id.
Detective Landis testified he did not take a formal statement from
Lofton on the day of the shooting; however, he returned to the hospital the
next day with his partner. Id. at 54-55. Based on the investigation, he
prepared two colored photo arrays, each containing eight photographs. Id.
at 55-56. Detective Landis showed Lofton the photo arrays and asked him
if he recognized anyone in the photo arrays. Id. at 56. Detective Landis
testified that, when he showed Lofton the first photo array, “[h]e
immediately pointed on the first [array] to [Appellant], who was positioned,
I believe, bottom row, second from the far right.” Id. Lofton circled
Appellant’s photo and signed his name next to it. Id. at 56-57, 60. Lofton
then indicated “[h]e’s the guy that shot me last night.” Id. at 61.
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Additionally, when Detective Landis showed Lofton the second photo array,
Lofton circled Turner’s photo and signed his name next to it. Id. at 63.
Detective Landis indicated that, after he showed Lofton the photo
arrays, he took a formal statement of the shooting from him. Id. Detective
Landis indicated that, when he showed Lofton the photo arrays and spoke to
him, Lofton was “very coherent” and understood what he was being asked.
Id. at 64.
On cross-examination, Detective Landis indicated that he prepared the
photo arrays based on neighborhood interviews, processing the crime scene,
collecting evidence, and “the intel he had at the time[.]” Id. at 66, 70. He
further indicated he had spoken to other officers about the case and was
aware of the responding officers’ broadcasting of general descriptions. Id.
at 68-69. He testified that he could not remember “off the top of [his] head”
the precise descriptions provided by the responding officers. Id. at 69.
Also, he indicated that, following the shooting, the police received a phone
call in which the caller provided the police with the name of two suspects,
Markel and Duda. Id. at 70-71.
Detective Landis then testified as follows:
[DEFENSE COUNSEL]: So the information you had was
that somebody named Markel was a suspect?
[DETECTIVE LANDIS]: Correct.
***
[DEFENSE COUNSEL]: How did you end up with these
pictures on these pieces of paper?
THE COURT: Okay. And if I can clarify and add to it, I
think [defense counsel] is also asking from the name of Markel,
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how do you—from the first name of Markel, how did you then
come up with both [Appellant] and also all the other people in
the photo spread? Is that basically your question?
[DEFENSE COUNSEL]: Yes.
THE COURT: Okay.
[DETECTIVE LANDIS]: Well, we went through the
database of the targeted area. Then we went through all the
Markels from that targeted area. Then when [w]e went to the
description of each person, does it meet the actual description of
our target based on intel and the information we have of who
this possible shooter is. That’s where we develop [Appellant].
As far as Duda went, we have an intel database that we
keep in-house for nicknames.
***
[DEFENSE COUNSEL]: So when you created the photo
arrays that I believe is marked C-1 with [Appellant] in it—
[DETECTIVE LANDIS]: Correct.
[DEFENSE COUNSEL]:--you put in your database the
name Markel and a description?
[DETECTIVE LANDIS]: No.
[DEFENSE COUNSEL]: No?
[DETECTIVE LANDIS]: Once I identify a target or
subject—
[DEFENSE COUNSEL]: Right.
[DETECTIVE LANDIS]: --I put him—once I identify him, I
put him in there. Then I go get seven additional guys that look
like him, normally not from that [sic] the area.
[DEFENSE COUNSEL]: Okay. So before you put this
picture of [Appellant] in the photo array marked as C-1 you had
already identified him as a suspect?
[DETECTIVE LANDIS]: As a suspect target, yes.
[DEFENSE COUNSEL]: Okay. What information did you
use to identify him as a suspect before you put him in the photo
array?
***
[DETECTIVE LANDIS]: The information received from
the investigation, the two nicknames, that’s what we went with.
Id. at 71-74.
Following the hearing, the suppression court denied Appellant’s
motion, and Appellant proceeded to a jury trial with Turner as his co-
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defendant. At trial, the Commonwealth offered the testimony of several
witnesses; however, the defense offered no witnesses.
Specifically, Police Officer Robert Ellis testified that, on September 9,
2013, he was on patrol with his partner, Police Officer Cyrus Pollard, when
they received a radio call for shots fired initially “in the 1800 block of Corlies
Street, and then. . .3018 Mifflin Street[,]” which is in a “nice neighborhood.”
N.T., 5/7/14, at 139, 148. Officer Ellis testified the officers arrived at the
3018 Mifflin Street residence within three to five minutes of receiving the
radio call, and they were the third police vehicle to arrive. Id. at 140.
Officer Ellis exited the police vehicle and followed other responding officers
into the house where he immediately noticed Lofton had been shot in the
arm. Id. at 141. Lofton yelled out, “I was in a[n] argument.” Id. at 170,
176. Officer Ellis also observed a male teenager, who was small, thin, and
light-skinned, inside of the house. Id. at 141, 144. However, since Lofton
was clearly in pain and bleeding profusely, Officer Ellis’ focus remained on
Lofton. Id. at 141-143. Officer Ellis assisted Lofton to a police vehicle and
then transported him to the hospital, where hospital personnel discovered
narcotics on Lofton’s person. Id. at 145.
Officer Ellis indicated that, during the transport, Lofton said he was
shot in the driveway of 1818 Corlies Street, which is approximately 150 feet
from 3018 Mifflin Street, and his “little brother” was with him during the
shooting. Id. at 150-51, 164. Upon arrival at the hospital, Lofton provided
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the police with a description of two men, who were involved in the shooting.
Id. at 166-67, 176. Specifically, Lofton told the officers two black males
were involved, both of whom wore dark clothing. Id. at 167. Lofton further
indicated one of the men was approximately 5’10’’ tall, weighed
approximately 180 pounds, and had a full beard. Id. Lofton then asked the
officers if his “little brother” was still in the house, and Officer Ellis assumed
he was talking about the teenager he had noticed previously in the house.
Id. at 164. Officer Ellis and his partner immediately radioed to their fellow
officers all of the information that they had gathered from Lofton. Id. at
167.
Officer Pollard confirmed that upon arrival Officer Ellis ran into the
house at 3018 Mifflin Street; however, he remained outside. Id. at 179. At
the hospital, he was present when a package of narcotics fell out of Lofton’s
pocket as hospital personnel were cutting off his clothes. Id. at 181.
Lofton testified he was convicted of “dealing heroin” in 2011 and 2012,
and he was on probation when he was shot on September 9, 2013. N.T.,
5/8/14, at 23-24. Lofton testified that he spent a lot of time with his
paramour, and he treated her fifteen-year-old brother, Carlos, as his little
brother. Id. at 25-27. He indicated he took Carlos “under [his] wing like
[a] little brother.” Id. at 27.
At some point, Lofton’s paramour’s mother talked to him about the
fact Carlos was “running the streets and selling drugs.” Id. Because Lofton
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did not want to see Carlos follow in his footsteps, he talked to the teenager,
who told him the people for whom he was selling drugs. Id. at 27-28.
Carlos also turned over to Lofton a pack of crack cocaine, which the men had
given him to sell. Id. at 30.
Lofton decided to confront the men, so about two weeks prior to the
shooting, during the daylight hours, he travelled with Carlos to Mifflin Street.
Carlos then pointed out the two people for whom he was selling drugs. Id.
at 28-29. Lofton confirmed the two men to which Carlos pointed were
Appellant and Turner. Id. at 29.
Lofton testified he walked up to the two men, stood four feet from
them, told them to leave Carlos alone because he was “too young for the
business,” and gave them back the crack cocaine. Id. at 30-31. Lofton
indicated the two men were standing “side by side,” he could clearly see
their faces, and when he told them to leave the teenager alone, Appellant
said he “respected that.” Id. at 32. Lofton said he then “fist bumped” the
two men and left the conversation on good terms. Id. at 33.
However, two weeks later, Lofton was inside the residence at 3018
Mifflin Street watching a football game when he heard a commotion going on
outside. Id. at 34. He went outside and saw Carlos standing with Appellant
and Turner. Id. Lofton then testified the following occurred:
Q: And what did you do when you went outside?
A: Confronted them again.
***
Q: What did you say?
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A: We started arguing back and forth.
***
Q: Carlos there?
A: Yes.
Q: And what did you find out at that time?
A: That he gave Carlos something.
Q: I can’t understand you.
A: He gave Carlos drugs, and I asked Carlos where it’s at,
and he acted like he didn’t want to give it to me, so I took it
from him.
THE COURT: I’m sorry. I didn’t hear that.
Q: You [have] to speak up, [Lofton].
A: What I say—I said I guess they gave Carlos drugs
again, and I asked Carlos where was it at, and he said he’s not
giving it to me. So I checked Carlos and I took it from him.
Q: Did Carlos have drugs on him?
A: Yes.
Q: What kind of drugs did he have on him then?
A: Heroin.
Q: Anything else?
A: Crack.
Q: And where was it that you took [the drugs] from him?
A: His waistband.
Q: Did he tell you—did Carlos tell you anything about what
they were arguing over?
A: No.
***
Q: So you took the drugs from Carlos. What did you do
with them?
A: I told them they ain’t getting them back.
Q: You told who they ain’t getting them back?
A: Those two.
Q: Indicating the defendants, [Appellant and Turner]?
A: Yes.
Q: What did they do—or what did they say when you said
that?
A: They said, who the fuck I think I am, and that’s when I
said—
Q: I need you to talk—
A: They asked who the fuck do I think I am, and I asked
who the fuck they think they be.
Q: Okay. So then what happened?
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A: I don’t remember, just standing there, but—I forgot
what they said, but that’s when they rode off and I walked off.
And shots were fired.
Q: Who said that? Who said, “Who the F do you think you
are?”
A: I believe [Turner].
Q: [Turner] said that? Did [Appellant] say anything?
A: No. He just looking stupid.
Q: I’m sorry.
A: He looking stupid.
Q: How far apart were they when [Turner] said that?
A: Side by side, I guess. Side by side.
Q: Side by side?
A: Yes.
***
Q: I’m going to ask you again to tell me when to stop as I
walk closer when how far—close they were—
A: Where you were there before.
Q: Same spot?
A: Same spot.
Q: About four feet away from you?
A: Yes.
Q: Were they both side by side then?
A: Yes.
Q: Anything covering their faces?
A: No.
Q: Were there lights on where you were?
A: Street lights.
Q: Okay. What did they say to you, if anything, about the
drugs that you took from Carlos?
A: I guess they wanted it back, and I told them they ain’t
getting shit back.
Q: When you say “guess,” were they asking for it back?
A: Yeah.
Q: Which one asked for it back?
A: [Appellant].
Q: [Appellant]?
A: Yeah.
Q: What did [Turner], if anything, say about the drugs?
A: Start[ed] running his mouth or something.
Q: Okay. Well, I know you already said he was just
running his mouth. What was he saying?
A: Shit-talking.
Q: Like what?
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A: Cosigning and everything. Cosigning.
Q: Cosigning?
A: Whatever [Appellant] say, he was cosigning.
Q: So [Turner] would repeat what[ever] [Appellant] was
saying?
A: Yeah, something like that.
Q: Saying the same exact thing or something different?
A: No, something different. . .different way.
Q: Can you tell the jury what you heard [Turner] saying?
A: I don’t remember right now.
Q: What do you remember [Appellant] saying?
A: “We want our shit back.” I said, “ You ain’t getting your
shit back.” And he said, “We got something for you.” I said,
“Come on with it.”
Q: They said they got something for you?
A: Yeah.
Q: Which one said that?
A: [Appellant].
Q: Did [Turner] say anything along those lines?
A: No, he just looking dumb.
Q: Okay. How far apart was [Turner] standing when
[Appellant] said that?
A: They was side by side.
Q: How long was, as you call it, that “shit-talking” going
on?
A: Like five minutes.
Id. at 35-42.
Lofton testified he told the men he was going to flush the narcotics
down the toilet, and they became upset. Id. at 43. Lofton watched as the
two men, who were “side by side,” started to ride off on their bikes, and as
he began to walk away in the opposite direction, he turned in time to see
Appellant shooting in his direction. Id. at 45. One of the bullets struck
Lofton in the front of his right bicep, and after he went into the house, his
paramour telephoned the police. Id. at 47.
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Prior to the shooting, Lofton did not observe either of the two men in
possession of the handgun. Id. at 49. He noted that both Appellant and
Turner were wearing black hoodies; however, Appellant’s hoodie had a
picture on it. Id. at 42. At trial, Lofton positively identified a hoodie, which
the police had seized from Appellant’s home, as the hoodie Appellant had
been wearing when he shot Lofton. Id. at 70-71, 176-78.
Lofton testified that, the day after the shooting, he picked out
Appellant’s and Turner’s photos from police photo arrays. Id. at 56-57.
Also, on that date, he gave a statement to the police indicating Appellant
shot him, but that Turner was with him and had done “all of the talking.”
Id. at 58-64. At trial, Lofton again identified Appellant as the man who shot
him, and Turner as the man who was “with him talking shit when [he was]
shot.” Id. at 69. He further indicated that, when he told the men he was
not giving the narcotics back to them, Appellant said, “We got something for
you[,]” and Turner said to Appellant, “Say no more.” Id. at 106.
Detective Michael Ferry testified the shooting occurred at 1818 South
Corlies Street, and the police found three 9 millimeter fired cartridge casings
in the vicinity. Id. at 120-21.
Detective Landis confirmed that, the day after the shooting, Lofton
chose Appellant’s and Turner’s photos from photo arrays. Id. at 160.
Specifically, he confirmed Lofton chose Appellant as the shooter, and he
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chose Turner as the person with Appellant and “doing all the talking.” Id. at
164-65.
The Commonwealth offered into evidence various stipulations made
between the parties, including the fact that neither Appellant nor Turner had
a valid license to carry a firearm. N.T., 5/9/14, at 65-66.
At the conclusion of all testimony, the jury convicted Appellant of the
offenses indicated supra, and the trial court sentenced Appellant to an
aggregate of twelve years to twenty-four years in prison. This timely,
counseled appeal followed,4 and all Pa.R.A.P. 1925 requirements have been
met.
In his first issue, Appellant contends the evidence was insufficient to
sustain his convictions. Specifically, he alleges the testimony from the lone
eyewitness, Lofton, which identified him as being involved in the shooting,
was so inherently unreliable and contradictory that the verdict could only
have come from speculation and conjecture. See Commonwealth v.
Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993) (indicating where testimony
of the victim is so unreliable and contradictory that it is incapable of
supporting a verdict of guilty, the evidence is insufficient as a matter of law).
The standard we apply when reviewing the sufficiency of
the evidence is whether viewing all the evidence admitted at trial
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4
Turner, who was also convicted and sentenced on numerous charges in
connection with the shooting, has filed a separate appeal. His appeal is
docketed at 2601 EDA 2014 and shall be addressed in a separate decision.
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in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying
the above test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we note that the
facts and circumstances established by the Commonwealth need
not preclude every possibility of innocence. Any doubts
regarding a defendant's guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced is free to believe all, part or
none of the evidence. Furthermore, when reviewing a
sufficiency claim, our Court is required to give the prosecution
the benefit of all reasonable inferences to be drawn from the
evidence.
However, the inferences must flow from facts and
circumstances proven in the record, and must be of such volume
and quality as to overcome the presumption of innocence and
satisfy the jury of an accused's guilt beyond a reasonable doubt.
The trier of fact cannot base a conviction on conjecture and
speculation and a verdict which is premised on suspicion will fail
even under the limited scrutiny of appellate review.
Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014)
(quotation and citation omitted).
As indicated supra, Appellant’s argument is specific in nature. Rather
than challenging the sufficiency of the evidence to support any of the
applicable elements of the offenses, Appellant contends the evidence was
insufficient to prove that he was the shooter or even one of the two men
involved in the shooting. As such, we need not conduct a thorough review
of the evidence to determine whether it can support a finding that all of the
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elements of the offenses have been met. Rather, we will focus on the
specific sufficiency issue raised by Appellant: whether the evidence was
sufficient to establish that Appellant was the perpetrator.
This Court has recognized that:
[E]vidence of identification need not be positive and certain to
sustain a conviction. Commonwealth v. S. Jones, 954 A.2d
1194, 1197 (Pa.Super. 2008)[.] Although common items of
clothing and general physical characteristics are usually
insufficient to support a conviction, such evidence can be used
as other circumstances to establish the identity of a perpetrator.
Commonwealth v. Minnis, 458 A.2d 231, 233–34 (Pa.Super.
1983). Out-of-court identifications are relevant to our review of
sufficiency of the evidence claims, particularly when they are
given without hesitation shortly after the crime while memories
were fresh. Id. at 234. Given additional evidentiary
circumstances, “any indefiniteness and uncertainty in the
identification testimony goes to its weight.” Id. at 233.
Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super. 2011) (en banc)
(quotation marks omitted).
Here, in rejecting Appellant’s sufficiency of the evidence claim, the trial
judge, the Honorable Denis P. Cohen, stated the following:
In the instant case, [Lofton], an eyewitness to the
shooting, unequivocally identified [Appellant] at trial as. . .the
shooter. Despite extensive cross-examination, [Lofton] never
waivered. [Lofton] testified that he walked up close to
[Appellant and Turner] (approximately four feet away), that the
streetlights were on, that nothing was covering [Appellant’s]
face, that [Appellant and Turner] were standing side-by-side,
that he argued with [Appellant and Turner] for several minutes
about Carlos’ drug dealing, and that [Appellant] was wearing a
black hoodie with a picture on the front and back. Once the
argument ended, [Lofton] testified that he watched [Appellant
and Turner] ride away together for a short while, that nobody
else was in the area that [Appellant and Turner] were riding, and
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that, when he heard the gunshots, he turned and saw a flash
coming from [Appellant’s] direction.
Four days after the shooting, the black hoodie that
[Appellant] was wearing the night of the shooting was recovered
from [Appellant’s] home, and [Lofton] recognized the hoodie at
trial as the hoodie that [Appellant] was wearing on the night of
the shooting. Additionally, according to both [Lofton] and
Detective Landis, the day after the shooting [Lofton]
unequivocally identified [Appellant] as. . .the shooter[ ] from a
photo array, and stated specifically that [Appellant] was “the guy
who shot me last night.”
[Lofton’s] testimony is further corroborated by the fact
that the flash description that he provided to Officer Pollard on
the night of the shooting was consistent with [Appellant’s]
physical characteristics a few days after the shooting.
Specifically, on the night of the shooting, [Lofton] indicated that
the shooters were two black males wearing dark clothing, one of
whom was approximately 5’10’’, 180 pounds, with a full beard.
According to the arresting officer, four days after the shooting
(the day [Appellant] was arrested) [Appellant] “looked like he
hadn’t shaven for at least a week or so” and there was facial hair
“all over his face” such that no “part of [Appellant’s] face was
shaven.” (N.T., 5/9/14, at 58-61).
Finally, [Lofton’s] identification was corroborated by the
fact that, in addition to arguing with [Appellant and Turner]
about Carlos on the night of the shooting, [Lofton] had met with
[the men] only two weeks prior to the shooting to discuss Carlos’
drug dealing. [Lofton’s] meeting with [Appellant] two weeks
prior to the shooting occurred during the day, and [Lofton]
testified [Appellant] was standing approximately four feet away,
face uncovered, side-by-side with [Turner].
While [Appellant] challenges the fact that immediately
after being shot and before taken to the hospital, [Lofton] first
told the police that he did not know what happened, such initial
uncertainty in the identification goes to the weight of the
evidence, not the sufficiency of the evidence. See Orr, 38 A.3d
at 874 (“Given additional evidentiary circumstances, any
indefiniteness and uncertainty in the identification testimony
goes to its weight.”)[.] Therefore, the Commonwealth
presented. . .sufficient evidence that [Appellant] was the
shooter.
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Trial Court Pa.R.A.P. 1925(a) Opinion, filed 6/5/15, at 14-16 (citations to
record omitted).
We agree with the trial court’s reasoning in this regard and find no
merit to Appellant’s first issue.
In his second issue, Appellant contends the suppression court erred in
denying his pre-trial motion seeking to suppress Lofton’s out-of-court
identification of Appellant as the shooter. In this vein, he alleges the
circumstances revealed that Lofton did not observe the person who shot
him, and he did not identify Appellant as the shooter until after he viewed an
unnecessarily suggestive photo array. See Appellant’s Brief at 22. Appellant
suggests the photographic identification procedure was conducted in a
suggestive manner by virtue of the fact “the arrays were not created using
any description Lofton may have provided to the police.” See id. at 23.
Moreover, he argues the “procedure was additionally suggestive because it
was done while Lofton was facing new drug charges while already on
probation for two drug dealing felonies, and [while Lofton] was under the
influence of Percocet [in the hospital].” See id. at 24.
Initially, we note:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court's factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted. . . .Where the suppression court's
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factual findings are supported by the record, we are bound by
these findings and may reverse only if the court's legal
conclusions are erroneous. Where. . .the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court's legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to
our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa.Super. 2012)
(quotations omitted). See Commonwealth v. Benton, 655 A.2d 1030
(Pa.Super. 1995) (indicating it is within the suppression court’s sole province
to make credibility determinations). Moreover, our scope of review from a
suppression ruling is limited to the evidentiary record that was created at
the suppression hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087
(2013).
When analyzing the admission of identification evidence, a
suppression court must determine whether the challenged
identification has sufficient indicia of reliability[.] This question
is examined by focusing on the totality of the circumstances
surrounding the identification. In deciding the reliability of an
identification, a suppression court should evaluate the
opportunity of the witness to see the criminal at the time the
crime occurred, the witness's degree of attention, the accuracy
of any description given, the level of certainty when identification
takes place, and the period between the crime and the
identification.
Commonwealth v. Sanders, 42 A.3d 325, 330 (Pa.Super. 2012)
(quotation marks, quotation, and citation omitted).
Suggestiveness in the identification process is a factor to
be considered in determining the admissibility of such evidence,
but suggestiveness alone does not warrant exclusion.
Identification evidence will not be suppressed unless the facts
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demonstrate that the identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification. Photographs used in
[arrays] are not unduly suggestive if the suspect's picture does
not stand out more than the others, and the people depicted all
exhibit similar facial characteristics.
Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa.Super. 2011)
(quotations and quotation marks omitted). “Additionally, [we note] the
purpose of a suppression order regarding exclusion of identification evidence
is to prevent improper police action. Thus, where [an appellant] does not
show that improper police conduct resulted in a suggestive identification,
suppression is not warranted.” Commonwealth v. Jaynes, 2016 WL
805572, *2 (Pa.Super. filed Mar. 1, 2016) (quotation marks, quotations, and
emphasis omitted).
In addressing Appellant’s claim, the suppression court indicated the
following:
As an initial matter, [Appellant’s] claim fails because he
does not allege that the police conduct-that is, any procedure
used by the police-was suggestive. As stated recently. . .in [ ]
Sanders, 42 A.3d [at] 331 [ ], “the purpose of a suppression
order regarding exclusion of identification evidence is to prevent
improper police action. Thus, where [an appellant] does not
show that improper police conduct resulted in a suggestive
identification, suppression is not warranted.”
At best, based upon a plain reading of [Appellant’s
argument], the only police procedure that [Appellant] alleged
had any impact on [Lofton’s] identification was the use of a
photo-array that did not reflect [Lofton’s] initial description of
[Appellant] to the police. Such a challenge to police procedures
fails as a matter of law; the Superior Court has consistently
stated that “there is no merit to the argument the identification
process was unduly suggestive because the photos did not
match the victim’s description of [the] assailant.” In re Love,
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646 A.2d 1233, 1237 (Pa.Super. 1994); see also [Fulmore,
supra]. Likewise, while [Appellant] also argues that the photo
identification was unnecessarily suggestive because [Lofton] was
medicated and looked at the photograph for fifteen minutes,
such an argument relates to the condition of the victim and
therefore goes to the weight of the evidence rather than its
admissibility. See Sanders, 42 A.3d at 331 (holding that
allegations that the victim was not “sufficiently cogent and lucid”
to make a pretrial identification go to the weight of the evidence
and not the admissibility of the identification). Therefore, since
in this case [Appellant] has not alleged the police conduct was
suggestive of the identification, “no improper police conduct is to
be deterred,” and the pretrial identification was properly
admitted.
In any event, the police conduct in the instant case was
not suggestive at all. “Suggestiveness arises when the police
employ an identification procedure that emphasizes or singles-
out a suspect.” Commonwealth v. Davis, 17 A.3d 390, 394
(Pa.Super. 2011). In the case sub judice, [Lofton] testified that
when he first met detectives (Detectives Landis and Ferry) at the
hospital, the detectives asked him to identify the shooters, but
that otherwise the detectives did not say anything to [Lofton]
about the case. Thereafter, the detectives returned the next
night with two arrays of eight photos each and asked [Lofton] to
identify the shooters. [Lofton] then testified that he looked at
the photographs for what seemed like fifteen minutes and
identified [Appellant] as the shooter[ ]. While [Lofton] was
looking at the photo arrays, the detective did not say anything to
[him] other than to identify the shooters. When [Lofton]
identified [Appellant] in the first photo array, the detective asked
[him] “where do you recognize that person from” and [Lofton]
responded “he’s the guy that shot me last night.”
Notably, nothing in the pretrial. . .record supports any
contention that the procedure[s] used by the detectives
emphasized or singled out [Appellant]. On the contrary, the
record indicates that on the night after the shooting the
detectives, before questioning [Lofton], merely showed [Lofton]
an eight person photo array and patiently awaited [his]
identification of the shooter. Therefore, the police conduct here
was not unduly suggestive and th[e] [c]ourt did not err in
denying [Appellant’s] pretrial motion to suppress the pretrial
identification of [Appellant].
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Trial Court Pa.R.A.P. 1925(a) Opinion, filed 6/5/15, at 8-10 (emphasis in
original) (citations and footnotes omitted).5
We agree with the suppression court’s reasoning in this regard.
Moreover, we note the record does not support Appellant’s contention that
the circumstances of the crime were such that Lofton was unable to make a
reliable identification of Appellant for lack of opportunity. For instance,
Lofton testified at the suppression hearing that he had met Appellant and
Turner a few weeks prior to the shooting during the daylight hours. N.T.,
5/5/14, at 23-25. Lofton further testified that, on the night of the shooting,
he stood face to face with Appellant and Turner, engaging in a conversation
for five minutes. Id. at 28, 35, 45. During this time, the men’s faces were
lit by the street lights and not covered. Id. Lofton indicated he was shot by
Appellant within a few seconds of walking away from the men. Id. at 29,
45.
Furthermore, with regard to Appellant’s argument that Lofton’s out-of-
court identification was suggestive since it was done while Lofton was facing
new drug charges while he was on probation, we conclude such would affect
the weight to be accorded the identification at trial, but would not preclude
____________________________________________
5
As the suppression court noted, there is no indication the photo array itself
was unduly suggestive, and Appellant presented no argument in this regard.
See Trial Court Pa.R.A.P. 1925(a) Opinion, filed 6/5/15, at 10 n.15. The
suppression court found “Appellant’s picture did not stand out from the
seven other photos and each of the photos depicted individuals with similar
characteristics as Appellant.” Id.
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its admissibility. See Sanders, supra. Accordingly, we conclude Appellant
is not entitled to relief on his second claim.
In his third issue, Appellant argues the trial court erred in failing to
give a Kloiber instruction6 to the jury.
Initially, we note that “[i]t is a bedrock appellate principle
that ‘issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.’ ‘A general exception to
the charge to the jury will not preserve an issue for appeal.
Specific exception shall be taken to the language or omission
complained of.’ ” Commonwealth v. Sanchez, 623 Pa. 253,
82 A.3d 943, 978 (2013), cert. denied, ___ U.S. ___, 135 S. Ct.
154, 190 L. Ed. 2d 113 (2014) (quotations omitted). Moreover,
[our Supreme] Court has held, in the criminal trial context, “the
mere submission and subsequent denial of proposed points for
charge that are inconsistent with or omitted from the
instructions actually given will not suffice to preserve an issue,
absent a specific objection or exception to the charge or the trial
court's ruling respecting the points.” Commonwealth v.
Pressley, 584 Pa. 624, 632, 887 A.2d 220, 225 (2005)
(footnote omitted).
Commonwealth v. Hitcho, ___ Pa. ___, 123 A.3d 731, 756 (2015).
In the case sub judice, our review of the record confirms that, prior to
the trial court charging the jury, Appellant’s counsel requested a Kloiber
instruction; however, noting the Commonwealth’s requested instruction
____________________________________________
6
“A Kloiber instruction informs the jury that an eyewitness identification
should be viewed with caution when either the witness did not have an
opportunity to view the defendant clearly, equivocated on the identification
of the defendant, or has had difficulties identifying the defendant on prior
occasions.” Sanders, 42 A.3d at 332 (Pa.Super. 2012) (citation and
footnote omitted).
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sufficiently addressed the issue, the trial court declined to give Appellant’s
counsel’s requested instruction. N.T., 5/9/14, at 42-45. In response,
Appellant’s counsel said, “Thank you, Your Honor.” Id. at 45. Thereafter,
upon completion of the trial court’s charge to the jury, the trial court asked
all counsel whether they had “[a]ny suggestions[,]” to which Appellant’s
counsel replied, “I have none, Your Honor.” Id. at 168. As is evident,
Appellant made no specific objection or exception to the charge or the trial
court's ruling respecting the point at issue. See Pressley, supra.
Accordingly, the issue is waived for purposes of appeal.
For all of the foregoing reasons, we affirm Appellant’s judgment of
sentence.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2016
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