Com. v. Kpaan, K ( 2014 )

J-A17019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KAI KPAAN
Appellant No. 2469 EDA 2013
Appeal from the Judgment of Sentence June 17, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0014452-2011
BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 19, 2014
Appellant, Kai Kpaan, appeals from the judgment of sentence entered
June 17, 2013, by the Honorable Barbara A. McDermott, Court of Common
Pleas of Philadelphia County. We affirm.
We take the underlying facts in this matter from the trial court’s
October 18, 2013, opinion.
On the morning of November 10, 2011, Eunice Beyan
drove to a Philadelphia-area [p]ost [o]ffice near 2900 S. 70th
street in her mother’s Nissan Altima. She went into the post
office, and when she came out again, at approximately 10:45
a.m., she sat in the car and began entering the information for
her next destination into her navigation device. As she was
doing so, [Kpaan] opened the car door and held a gun to her
side. He told Beyan to put the key in the ignition and get out of
the car. Because this particular model of vehicle did not have a
traditional key ignition, Beyan said she could not do that.
[Kpaan] said “Do you think I’m playing with you? I’ll shoot you.
Put the key in the ignition.” When it became clear that this was
not possible, he ordered her out of the car and attempted to
start it. He was unable to do so, and he then ordered her back
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into the car in order to start the engine. Beyan started the car,
and as she was relinquishing the driver’s seat to [Kpaan], she
reached for her purse. [Kpaan] told her to leave everything in
the car and go. She left her purse, wallet, and cellular phone in
her vehicle, and walked away. [Kpaan] told her “don’t look
back.” N.T. April 15, 2013, pp. 45-52; Commw. Exh. 1.
During the investigation, Beyan called T-Mobile, her
cellular service provider, to find out whether it was possible to
track the location of her phone. They informed her that it was
not, but she logged into her T-Mobile account and noticed some
calls made after her phone was stolen. She gave the phone
numbers of those calls to the investigating detective. Id. at 56-
57.
On November 11, 2011, the day after the robbery, a
detective came to Beyan’s home and showed her a photo array
containing eight photographs, one of which depicted [Kpaan].
She circled [Kpaan’s] picture, and wrote underneath it her name,
the date, the time, and “100% sure (no doubt)”. This photo
array, thus marked, became Commonwealth Exhibit 11. After
she identified [Kpaan], her immediate family members looked at
his photograph. Id. at 57-61.
On the night of November 20, 2011, Beyan went to the
scene of a party to identify [Kpaan], after her stepbrother told
her stepfather that he had seen [Kpaan] at the party. Police
officers met Beyan and her stepfather at the party, where a
bouncer brought [Kpaan] outside to Beyan, who identified him
as the man who robbed her. The officers then attempted to take
him into custody, but [Kpaan] ran. The officers gave chase, and
after [Kpaan] was caught, Beyan was taken to that location
where she identified him again. Id. at 61-68.
[Kpaan was arrested and charged with Robbery, Robbery
of a Motor Vehicle, Terroristic Threats, Simple Assault, Reckless
Endangerment of Another Person (REAP), Possession of an
Instrument of Crime, and numerous firearm charges. At trial,]
Detective Vincent Parker testified that he was given the phone
numbers that had been called on Beyan’s cell phone after the
robbery, and that when he called one of them, a female
individual who identified herself as Alexis Rivera answered the
phone. He met with Rivera, and later prepared warrants for
Beyan’s phone records as well as Rivera’s. Those records
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confirmed that at 11:20 a.m. on the day of the robbery, Beyan’s
phone was used to call Rivera. Id. at 92-104.
Teresa Paris, Custodian of Records for the Philadelphia
State Prison, keeps records of visits to incarcerated people. She
confirmed that Alexis Rivera had visited [Kpaan] on 21 occasions
during his pretrial detention. Id. at 153-158. On April 15, 2013,
Alexis Rivera came to the Criminal Justice Center, as she had
been subpoenaed to testify. According to Detective Parker, Ms.
Rivera had been waiting in the hallway outside the courtroom
where the proceedings were held, and she was crying, shaking,
and speaking loudly. When Parker met her in the hallway, she
told him that she was going to the bathroom, and then she left
the area and did not return. Id. at 110-112.
The defense presented alibi witness Margaret Kpaan,
[Appellant’s] mother, who testified that [Kpaan] was at home all
day on the day of the robbery, and that at the time of the
robbery, he wore a goatee and a moustache. Id. at 167-172.
Beyan had told the police that the person who robbed her was
clean-shaven. Id. at 73.
* * *
Trial Court Opinion, 10/18/13 at 2-4.
On April 16, 2013, a jury convicted Kpaan of all charges. 1 On June 17,
2013, the trial court imposed an aggregate term of 7½ to 25 years’
imprisonment. This appeal followed.
Kpaan raises the following issues for our review.
A. Whether the court erred in denying that the evidence of visits
to [Kpaan] in prison by a person allegedly named Alexis
Rivera, coupled with the hearsay testimony that a person also
named Alexis Rivera received a phone call from the victim’s
cell phone shortly after the robbery, without any testimony by
____________________________________________
1
The Simple Assault and REAP charges were nolle prossed, and the trial
court additionally convicted Kpaan of Persons not to Possess Firearms.
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any person named Alexis Rivera at trial, was more prejudicial
than probative?
B. Whether it was error for the court below to allow the
prosecution to bolster its purported identification evidence by
showing that [Kpaan] ran away from police on seeing them
outside a bar, while denying the defense any opportunity to
show reasons why he would do so, independent of any
“consciousness of guilt”? Thus, the court invited the jury to
draw the inference that [Kpaan’s] “flight” alone, was enough
to allow police, and the law, to infer “probable cause of
guilt.[”]
C. Whether the contradictory identification testimony as to
whether the robber had face hair or was smooth shaven
necessitated a “Kloiber” instruction to the jury?
D. Whether it was error, and an abuse of discretion, for the court
to allow [Kpaan’s] identification photograph upon which the
complainant had hand-written virtually the same words to
which she testified, about her “certainty” of [Kpaan’s]
identification, to be given to the jury for review during
deliberation, thus permitting the jury to have the equivalent
of a transcript of the complainant’s trial testimony during
deliberations?
Appellant’s Brief at 2 (unnecessary capitalization omitted).
Preliminarily, we note that issues B. and C. Kpaan now raises on
appeal were not included in the court-ordered Rule 1925(b) Statement of
Matters Complained of on Appeal filed on October 15, 2013. Rule
1925(b)(4)(vii) explicitly states that “[i]ssues not included in the Statement
and/or not raised in accordance with the provisions of this paragraph (b)(4)
are waived.” In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306(1998), the Pennsylvania Supreme Court reaffirmed the principle that any
issues not raised in a Rule 1925(b) statement will be deemed waived. 553
Pa. at 420, 719 A.2d at 309. We are therefore constrained to find that
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Kpaan has waived issues B. and C. by failing to raise them in his court-
ordered 1925(b) statement.
We proceed to address the remaining issues Kpaan has preserved on
appeal. With our standards of review in mind, we have examined the
certified record, the briefs of the parties, Judge McDermott’s memorandum
opinion, and the applicable law, and we find that the lower court ably and
methodically addressed the issues Kpaan presented on appeal.2 Accordingly,
we affirm on the basis of Judge McDermott’s memorandum opinion. See
Trial Court Opinion, 10/18/13.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2014
____________________________________________
2
The trial court additionally addresses a third issue regarding the
Commonwealth’s cross-examination of Kpaan’s mother. As Kpaan has not
included this issue in his appellate brief, we find that he has abandoned this
issue on appeal.
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