Com. v. Williams, R. ( 2017 )

J-A29031-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RAYSHAWN WILLIAMS, :
:
Appellant : No. 537 WDA 2015
Appeal from the Judgment of Sentence February 25, 2015
in the Court of Common Pleas of Allegheny County,
Criminal Division, No(s): CP-02-CR-0012281-2013;
CP-02-CR-0014922-2014
BEFORE: DUBOW, MOULTON and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 19, 2017
Rayshawn Williams (“Williams”) appeals from the judgment of
sentence entered following his conviction of first-degree murder and persons
not to possess or use a firearm.1 We vacate the judgment of sentence and
remand for a new trial.
On July 31, 2013, at approximately 4:00 p.m., three men and the
victim, Derick Lyman (“Lyman”), argued in the hallway outside of the
apartment where Lyman lived with his girlfriend, Tayla Wright (“Wright”). In
that verbal altercation, the three men, known to Wright as “Tay Tay,” “J-
Zombie” and “Judd,” argued with Lyman about “someone’s brother getting
robbed.” Trial Court Opinion, 1/19/16, at 6 (citation omitted). Following the
argument, Tay Tay and Judd went into the apartment of Natwauna Lane
1
18 Pa.C.S.A. §§ 2501(a), 6501(a)(1).
J-A29031-16
(“Lane”) (known to Wright by the nickname, “Nay Nay”). Lyman and J-
Zombie walked up the street to J-Zombie’s house. Lyman thereafter
returned to his apartment.
At about 5:51 p.m., Wright looked out of the window and observed
Williams approaching her apartment building.2 Shortly thereafter, Williams
knocked loudly on Wright’s apartment door. When Wright opened the door,
Williams told Wright that he was “looking for some answers,” at which time
Lyman walked into the hallway with Williams. As she started to follow
Lyman, Wright observed Tay Tay and Judd standing with Williams, and Lane
standing in the hallway, listening to the conversation.
Wright subsequently gathered her daughter and walked out into the
hall, in order to leave the building. As she left, she observed Williams,
Lyman, Tay Tay, Judd and Lane standing in the hallway. At that time,
Wright advised Lyman to go back to their apartment.
Once outside of the apartment, and after giving her daughter to a
friend, Wright moved her vehicle from the front of the building to the back of
the building. As Wright walked back to the building’s entrance, Williams ran
past her. As Williams did so, two girls screamed, at which time Williams told
the girls, “homeys, I’m not going to shoot you.” Wright observed that
Williams was carrying a gun in his right hand, and running with his hoodie
pulled up a “little bit over his face.” Id. (citation omitted).
2
Wright recognized Williams as “Ray Ray,” from the Homewood
neighborhood in which she grew up.
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Wright’s mother screamed at Wright to get inside, as someone had
just been shot. Once inside, Wright found Lyman lying on the hallway floor,
near Lane’s door. Although Lyman was transported to the hospital, he died
as a result of multiple gunshot wounds.
At the hospital, Wright spoke with Pittsburgh Police Detective Harry
Lutton (“Detective Lutton”), and identified the shooter as “Ray Ray.”
Thereafter, at police headquarters, Wright identified Williams as the
assailant, from a collection of photographs in a binder.
Several days later, Williams was arrested. At the police station, upon
being informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436
(1966), Williams elected to remain silent. However, as police detectives
were leaving the room, Williams inquired as to whether he could ask the
detectives a question. When the detectives responded in the affirmative,
Williams stated, “[w]hat happens now?” and “what did I do?” Trial Court
Opinion, 1/19/16, at 13 (citation omitted). The detectives again explained
the allegations against Williams, to which Williams responded, “That’s not
me. Check me out. Check my charges. I’m a drug dealer. I deal drugs.”
Id. When the detectives asked Williams about video surveillance footage,
Williams stated, “That’s it. I’m done talking.” Id.
Williams filed pretrial suppression Motions seeking to suppress, inter
alia, his statement to police: “That’s it, I’m done talking.” N.T. (Pretrial
Hearing), 4/16/14, at 5-7). Williams also sought to suppress Wright’s
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identification of Williams from the binder of photographs. The trial court
denied Williams’s suppression Motions. The jury ultimately convicted
Williams of the above-described charges, after which the trial court
sentenced Williams to an aggregate prison term of life in prison. Williams
filed a Post Sentence Motion, which the trial court denied. Thereafter,
Williams filed the instant timely appeal, followed by a court-ordered
Pa.R.A.P. 1925(b) Concise Statement of Matters Complained of on Appeal.
Williams presents the following claims for our review:
I. Did the trial court err in denying the “Motion to Suppress
Photo Array Identifications Made by [Wright,]” where the
identification procedure was highly suggestive and the
Commonwealth failed to establish an independent basis for []
Wright’s identification of [] Williams?
II. Did the trial court abuse its discretion by allowing Detective
[Hal] Bolin [“Detective Bolin”] to impeach [Lane] with her prior
inconsistent statements[,] where the probative value of this
testimony was outweighed by the danger of prejudice?
III. Did the trial court err in denying [] Williams’[s] Motion to
Suppress statements where the Commonwealth failed to present
any evidence at the suppression hearing to rebut [] Williams’[s]
assertions that the statements were unconstitutionally obtained?
IV. Did the trial court abuse its discretion by allowing the
Commonwealth to present [] Williams’[s] post-arrest, post-
Miranda silence as substantive evidence of guilt?
Brief for Appellant at 6 (some capitalization omitted, issues renumbered).
Williams first claims that the trial court improperly denied his Motion to
suppress Wright’s pretrial identification of him from a binder of photographs.
Id. at 56. Williams argues that the evidence presented at the suppression
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hearing “undeniably established that the photograph identification procedure
was unduly suggestive.” Id. According to Williams, the trial court
improperly denied suppression “without hearing any evidence to establish an
independent basis for Wright’s identifications.” Id. Claiming that the photo
array was unduly suggestive, Williams states that the police presented
Williams with a binder containing two to three hundred photographs, which
were color-coded by neighborhood and identified the individuals by name.
Id. at 60-61. Williams asserts that his name was listed under his
photograph, in the Homewood section of the binder, under the heading
“Ra[ce] Street Crips.” Id. at 61. In addition, Williams asserts that the
binder, the “Zone 5 Gang Book,” was unduly suggestive as it only contained
photographs of suspected gang members. Id.
In its Opinion, the trial court set forth the appropriate law, addressed
Williams’s first claim and concluded that it lacks merit. See Trial Court
Opinion, 1/19/16, at 20-27. We agree with and adopt the conclusion
reached by the trial court, and affirm its resolution of Williams’s claim on this
basis. See id.
In his second claim, Williams argues that the trial court improperly
allowed the Commonwealth to call Detective Bolin, “strictly to impeach
[Lane] with her previous inconsistent statements that [] Williams was
present in her apartment building shortly before the shooting.” Brief for
Appellant at 65. According to Williams, Lane’s prior statements “bore
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directly on the central issue at trial: the identity of the shooter.” Id.
Williams posits that the jury improperly used the testimony as substantive
evidence of his guilt, despite a cautionary instruction by the trial court. Id.
Williams directs our attention to case law in which testimony regarding prior
inconsistent statements was deemed too prejudicial to be admissible at trial.
Id. at 66-69.
The trial court set forth the relevant law in its Opinion, addressed
Williams’s claim, and concluded that it lacks merit. See Trial Court Opinion,
1/19/16, at 27-31. We agree with the sound reasoning of the trial court, as
set forth its Opinion, and affirm on this basis as to Williams’s second claim.
See id.
In his third claim, Williams argues that the trial court improperly
denied his suppression Motion, where the Commonwealth failed to present
evidence at the hearing to rebut Williams’s claim that his statements to
police were unconstitutionally obtained. Brief for Appellant at 29-30.
According to Williams, it was the Commonwealth’s burden to produce such
evidence at the suppression hearing. Id. at 30. Williams asserts that the
Commonwealth presented no evidence at the suppression hearing that
would meet this burden and, therefore, the statements should be
suppressed. Id. at 32. Williams states that he preserved his challenge by
filing his Motion to suppress his statement. Id. at 31.
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In its Opinion, the trial court set forth the appropriate law, addressed
Williams’s claim, and concluded that it lacks merit. See Trial Court Opinion,
1/19/16, at 10-12. We agree with and adopt the trial court’s reasoning.
See id. We additionally note the following.
At the suppression hearing, the Commonwealth did not dispute
Williams’s factual basis for his suppression Motion. The Commonwealth
agreed with the assertion in Williams’s Motion that, after police had arrested
Williams and told him of his rights pursuant to Miranda, Williams invoked
his right to remain silent. N.T., 4/15/14, at 4-6. The Commonwealth
agreed that Williams reinitiated questioning, after invoking Miranda, when
he asked the officers why he was going to jail. Id. The Commonwealth
agreed that Williams told police that he did not commit the homicide, and
that he “is a drug dealer.” Id. at 5, 6. The Commonwealth did not dispute
that the police officers then asked Williams, “What about the surveillance
video?” Id. at 5, 6. Finally, the Commonwealth did not dispute that
Williams told the officers that he was not going to say anything else, and
that he was done talking. Id.
At the hearing, defense counsel and the Commonwealth disagreed as
to the application of the law to the facts, as stated by both counsel. Id. at
6-7. Defense counsel offered no objection to the trial court hearing
argument as to the legal basis for Williams’s Motion. See id. Under these
circumstances, we agree with the suppression court’s conclusion that
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Williams waived his challenge to the Commonwealth’s failure to present
evidence at the suppression hearing, by failing to raise the issue before the
trial court. See Pa.R.A.P. 302(a) (stating that an issue cannot be raised for
the first time on appeal).
Finally, Williams challenges the denial of his Motion to suppress his
post-arrest statement to police, “That’s it. I’m done talking.” Brief for
Appellant at 46. Williams contends that this statement was taken in
violation of his Fifth Amendment right against self-incrimination. Id.
Williams argues that the admission of this statement violated his
constitutional right to remain silent under the Fifth Amendment to the United
States Constitution, and Article I, Section 9 of the Pennsylvania Constitution.
Id.
As our Supreme Court has explained,
questions concerning the admissibility of evidence are within the
sound discretion of the trial court and will only be reversed upon
a showing that the court abused its discretion. Commonwealth
v. Johnson, 615 Pa. 354, 42 A.3d 1017, 1027 (Pa. 2012). An
abuse of discretion occurs where “the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record.” Commonwealth
v. Randolph, 582 Pa. 576, 873 A.2d 1277, 1281 (Pa. 2005).
However, to the extent the question presents as “an issue
involving a constitutional right, it is a question of law; thus, our
standard of review is de novo, and our scope of review is
plenary.” Commonwealth v. Baldwin, 619 Pa. 178, 58 A.3d
754, 762 (Pa. 2012).
Commonwealth v. Adams, 104 A.3d 511, 517 (Pa. 2014).
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Both the United States Constitution and the Pennsylvania Constitution
protect every person against being compelled to be a witness against himself
or herself. U.S. Const. amend. V; PA. CONST. article I, § 9.3 In
Commonwealth v. Molina, 104 A.3d 430 (Pa. 2014), an evenly divided
Pennsylvania Supreme Court “view[ed] the drawing of an adverse inference
from a defendant’s silence to be encompassed within the right against
compelled self-incrimination.” Id. at 450. “[A]llowing reference to a
defendant’s silence as substantive evidence endangers the truth-determining
process[,] given our recognition that individuals accused of a crime may
remain silent for any number of reasons.” Id. “To violate this rule, the
testimony must clearly refer to post-arrest silence.” Commonwealth v.
Smith, 995 A.2d 1143, 1155 (Pa. 2010).
While we have interpreted the constitutional right against self-
incrimination generally to prohibit prosecutors from referencing a
defendant’s silence as substantive evidence of guilt, this Court
has also concluded that the right against self-incrimination is not
burdened when the reference to silence is “circumspect” and
does not “create an inference of an admission of guilt.”
[Commonwealth v.] DiNicola, 866 A.2d [329,] 337 [(Pa.
2005)]. As noted above, “[e]ven an explicit reference to silence
is not reversible error where it occurs in a context not likely to
suggest to the jury that silence is the equivalent of a tacit
admission of guilt.” See id. (quoting [Commonwealth v.]
Whitney, 708 A.2d [471,] 478 [(Pa. 1998)]).
Adams, 104 A.3d at 517.
3
In relevant part, the United States Constitution decrees that “No person …
shall be compelled in any criminal case to be a witness against himself.”
U.S. CONST. Amend. V. The Pennsylvania Constitution dictates that the
accused “cannot be compelled to give evidence against himself[.]” PA.
CONST. art. 1, § 9.
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Pennsylvania Courts “have consistently regarded testimony about a
defendant’s silence as having an extremely high potential for prejudice.”
Commonwealth v. Clark, 802 A.2d 658, 661 (Pa. Super. 2002); see also
Commonwealth v. Clark, 626 A.2d 154, 158 (Pa. 1993) (recognizing that
“an impermissible reference to the accused’s post-arrest silence is innately
prejudicial.”). Thus, “[a]n impermissible reference to an accused’s post-
arrest silence constitutes reversible error unless shown to be harmless[.]” 4
Commonwealth v. Costa, 742 A.2d 1076, 1077 (Pa. 1999).
Upon our review of the record, we cannot conclude that the error was
harmless. At the suppression hearing, the Commonwealth and defense
counsel agreed that
4
“An error is harmless if it could not have contributed to the verdict, or
stated conversely, an error cannot be harmless if there is a reasonable
possibility the error might have contributed to the conviction.”
Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015). Our
Supreme Court has found harmless error where
(1) the error did not prejudice the defendant or the prejudice
was de minimis;
(2) the erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to the
erroneously admitted evidence; or
(3) the properly admitted and uncontradicted evidence of guilt
was so overwhelming and the prejudicial effect of the error was
so insignificant by comparison that the error could not have
contributed to the verdict.
Id. at 716 (citations omitted). The Commonwealth has the burden of
proving harmless error beyond a reasonable doubt. Id.
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upon questioning by the police after his arrest, [Williams]
invoked his right to remain silent. [The police officers] then told
him, “You are going to the jail.” He expressed confusion about
why. They again said, “Well, you are charged with a homicide.”
[Williams] said, “No, I don’t do that. I’m a drug dealer.”
Then they ask[ed] [Williams], “Well, what about the surveillance
video?” He said, “I’m not saying anything else.”
N.T. (Suppression Hearing), 4/15/14, at 4-5. The trial court denied
Williams’s Motion to suppress his statement, “I’m not saying anything else.”
Trial Court Order, 4/15/14.
At trial, Detective Scott Evans (“Detective Evans”) testified that,
following Williams’s arrest, Williams was informed of his Miranda rights.
N.T., 11/20-21/14, at 92-93. Detective Evans testified as follows regarding
his questioning of Williams:
Q. [The Commonwealth]: And you say you read [the Miranda
warnings] to [Williams]. Do you read it word by word?
A. [Detective Evans]: Yes, sir.
Q. And do you ask him if he understands?
A. Yes, I do.
Q. And as you’re going through the form, did he indicate
whether or not he understood what you were telling him?
A. He indicated every single time that I asked him—and I asked
him three times, “Do you understand this?” And all three times
he responded, yes.
Q. And there’s one last question, right?
A. Yes.
Q. And what was that question?
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A. “Knowing these rights, are you willing to waive your rights
and answer questions without the presence of a lawyer?”
Q. And what did he say?
A. No.
Q. What did you do?
A. I got up, and I was walking out of the room, and he said,
“Can I ask you a question?” And I sat back down, and I said,
“Sure.” And he said, “What happens now?” And I told him he
was going to be processed on homicide charges. And he said—
he asked me, “Well, what did I do?” And I started to explain to
him the allegations, my understanding from what I read in the
police reports, and that he shot and killed someone in the East
Hills housing project in the City of Pittsburgh. And he said,
“That’s not me. Check me out?” And I said, “Well, apparently
there’s some video surveillance of the area where this incident
occurred.” And he said, “Well, that’s it. I’m done. I’m done
talking. I’m not saying anything else.”
Q. And did you conclude the interview at that point?
A. Yes, I did.
Id. at 93-94.
The trial court deemed the above statement admissible, opining that
[t]he statement at issue came on the heels of [Williams] denying
his involvement in the homicide, and it was admitted to
demonstrate the natural progression of the investigation and
explain how the detectives’ interview with [Williams] concluded.
Had it not been admitted, the jury would have been left with
even more questions about what had transpired between the
detectives and [Williams] during the interview. There would be
virtually no context to explain why the interview ended after
[Williams] had denied guilt by saying, “That’s not me. Check me
out” after he was told that he was charged with a homicide….
Trial Court Opinion, 1/19/16, at 17.
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However, upon review, the trial court’s view that the probative value
outweighed the potential prejudice is not supported in the record. Police
obtained this statement after Williams’s arrest, and presumably at the
conclusion of its investigation. When read in context, it is clear that
Williams’s final statement is a re-invocation of his constitutional privilege
against self-incrimination. Further, the statement could only be interpreted
as Williams’s recognition that video surveillance footage would incriminate
him. The evidence was not de minimis, or cumulative of other, properly
admitted evidence. See Poplawski, 130 A.3d at 716. Finally, the
Commonwealth has failed to prove, beyond a reasonable doubt, that the
evidence did not contribute to the verdict. See Commonwealth v. Noel,
104 A.3d 1156, 1172 (Pa. 2014) (stating that “the judgment of sentence
will be affirmed in spite of the error only where the reviewing court
concludes beyond a reasonable doubt that the error did not contribute to the
verdict.”).
Here, there was no eyewitness to the shooting. Wright testified that
earlier that day, she saw that J-Zombie and Judd also possessed firearms.
N.T., 11/18-20/14, at 20-21, 230. Wright additionally testified that she did
not see Williams with a firearm as he approached her front door, or when he
was talking to Lyman prior to the shooting. Id. at 232. Lane testified that
immediately after the shooting, she saw only Lyman in the hallway outside
of her apartment. N.T., 11/20-21/14, at 181. Lane further stated that she
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did not see Williams inside of the apartment building or in the hallway prior
to the shooting. Id. at 171. Although the Commonwealth presented
circumstantial evidence of Williams’s guilt, we cannot conclude, beyond a
reasonable doubt that the admission of Williams’s statement did not
contribute to the verdict. See Noel, 104 A.3d at 1172. Because we cannot
conclude that the error in admitting Williams’s statement was harmless, we
are constrained to vacate the judgment of sentence, and remand for a new
trial.
Judgment of sentence vacated. Case remanded for a new trial.
Superior Court jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/19/2017
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Circulated 12/27/2016 04:03 PM
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY.
PENNSYLVANIA
COivH,/!ONWEALTH OF PENNSYLVANLA., CR!M!NAL D!V!StON
vs. CC No.: 2013-12281
2014-14922
RA YSHAWN WILLIAMS,
Defendant.
OPINIO_N
This is a direct appeal from the judgment of sentence entered on February 25,
?O 15. follnvv1ng the Defendant's convictions for First Degree Murder and th?in~J a Person
Not to Possc~.;s or Use a Firearm Tflt':l Oefenciant was originally charged at the
information filed at CC# 2013-1228 l with Criminal Homicide ( 18 Pa.C. S.A. 2501 (a)) and
Person i'Jot to Possess, Use a Firearm ( 18 Pa.C.S . .A.. 6 i 05(a)( 1 )). The Person Not to
f:.)ossess charge was severed. at lhe Defenclc.rnt's request, prior to trial and proceeded
forward at CCH 2014-14922 The Horrucide charqe was tried to a jury betvveen
Novernt . er 18, 2014 and November :?O, 2014, ,vith a non-jury trial occurring
simultaneously on the severed Person not to Possess or Use a Firearm charge. On
November 25, 2014, the jury convicted the Defendant of First Degree Murder, and this
court rouno the Defendant guilty of tt1e firearm offense. (Jury Trial Transcript
'
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;?O 15, the Defendant was sentencecJ to lif;:; imprisonment without parole on the murder
charge at CC# 2013-12281, and he received a concurrent sentence of five (5) to ten
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( 10) years of incarceration for being a Person Not to Possess at CC# 2014-14922. On
February 25, 2015. the Defendant filed a Post-Ssntonca Motion. which was denied on
February 27, 2015. This timely appeal touowed.
On October 26, 2015, the Defendant filed his Concise Statement of Errors to be
1
Complained of on Appeal ("Concise Statement"), raising the following seven (7) issues
for review:
I. The trial court erred in denying ~Ar. Williams' Motion to Suppress a
statement he made to police/detectives during a custodial
interrogation on .t\ugust 5, 2013. Following his arrest, Mr. Williams
invoked his Miranda rights and declined to speak to detectives
without an attorney present. Shortly thereafter Mr. '1\/illiams
expressed confusion over n-ie nature of his charges, at which point
a detective referenced video survenlance footage that captured the
incident. ,~.! that point, Mr. Wiiliams allegedly stated, "That's it. I'm
done talking." In Hie Omnibus Pretriaf Motion, trial counsel
specifically asserted that this statement was obtained in violation of
Mr. Williams right to remain silent as proviced by the 51t1 and s1n
a.nendments of the United States Constitution and Article I §9 of
tTio PennsytvaniA Consntunon and shoufci therefor(~ be
suoprcssco. Apart from lhe Assistant District Attorney's assertions
to the contrary, the Ccrnmonwealtn failed to present any evidence
to prove that this statement was constitutionally obtained. Thus,
tt,e Commonwealth tailed to meet its burden and the statement at
issue should have been suppressed
11. Had the Commonwealth presented evidence at the suppression
hearing bearing on the constitutionality of Mr. Wifliams' statement
(see issue "I"), the trial court nonetheless erred in denying Mr.
\Niliiams' Motion to Suppress this statement. Mr. Williams initially
invoked his Miranda rights foilowing his arrest on August 5, 2013,
and declined to speak with ofticers/detcctlves. Since detectives
continued to question Mi. Williams concerning a topic that was
likely to elicit an incriminating response, the statement at issue was
I
The Defendant received three (J) extensions of time to fiie his Concise Statement
because he was awaiting transcripts.
obtained in violation of Mr. Wllliarns' rights under the 5th and 61h
amendments or the United States Constitution and Article l, Section
I 9 of the Pennsylvania Constitution.
Ill. Even if suppression was not warranted, the trial court abused its
discretion by allowing Mr. Wiiiiarns' statement to detectives, 'That's
it, I'm done talking." Under Pa.R.E. 403, the probative value of this
evidence was outvveighed by the danger of unfair prejudice to Mr.
Williams. In ma! in
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between Ricky and three (3) men known as "Tay Tay," "Zombie," and "Judd." (TT 1, pp.
i ,H, 148-49, 188, 190-91, 199). Ricky, Tay Tay, Zombie, and Judd were in the hallway
out;icie cf Ms. VVright's apartment at around 4 p.m. that day, and they wf::re overheard
hnving ,1 loud verbal altercation about "someone's bmtl1e;· getting robbed." (TT 1, pp.
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66). Tay Tay and Judd subsequently went into the apartment of their friend "Nay Nay"
(N3twauna Lane), whlte Hicky and Zombie walked up the street to Zombie's house. (TT
1, pp 144·45, 190, 203-05, 223, 225, 233). Ricky had returned to the apartment he
sh,.r2d with Ms. Wright shortly before the Defendant started banging on the apartment
door 1.., -r·r1 , p. -1 'HJ
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I Ms. Wright heard Ricky explain to the Defendant that he did not have a problem
I with Tay Tay or Judd, and he told the Defendant that "sornothinq happened earlier with
Zombie," Ricky's friend (TT 1, pp. 148 ·50, 190. 222, 267). Ms. Wright was preparing
to walk out into the hallway with Ricky and tr,e Defendant, but, as she looked outside of
her door, she saw Tay Tay and Judd standing with the Defendant. (TT 1, pp. 149-50,
152-53, 178, 229-30, 235). Ms. Wright also saw Nay Nay (Ms. Lane) standing in the
hallway listening to the conversation. (TT 1, pp. 149, 152, 178, 229, 235). Ms. Wright
knew that Ms. Lane was her next-door neighbor, but she did not know her personally.
(TT 1. pp. 145, 192, 195).
tv1s. Wright returned to h,2r apartment and shut the door. However, she then
decided to take her daughter across ti·ie street to Ms. Wright's mother's house because
she had a "funny" feeling about the situation and feit uncomfortable. (TT 1, pp. 150,
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JudcJ as Ms. Wright left the building witn her daughter. Ms. Wright told Hicxy to go back
into their apartment because he did not "have anything to do with what happened"
earlier in the day witn Zombie. (TT 1, pp. 153-54, 209). Despite Ms. Wright's request,
n,cky did not go back into tr1Ei apartment. (TT ·1, p. 154) .
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I.. On her ·Nay out of the building, Ms. Wright saw a friend who agreed to walk her
daughter across the stroe! to Ms. Wright's mother's house. (TI 1, p. 153). Ms. Vvright
stopped in tl1e parking lot in front of the building and spoke with a woman named
Brittany, who also had just exited the building. (TT 1, pp. 154-57, 179, 247). As they
I.
. were tatking in the parking lot, the women saw Tay Tay and Judd leave the building, get
into a vehicle that had just pulled up, and drive avvay. (TT 1, pp. 155-56); (TT 2, p. 182).
At this point, Ms. Wright decided to move her vehicle from the front to the back of the
building because she was worried about something happening to her car. (TT 1, pp.
156-5/, 241-42).
rv1s. Wright was V':afking back towards tr;e t)iJilcLng aftei moving her car when
she saw the Defendant run past her and heard two (2) girls scream at the sight of him.
(TT 1. pp. 157-58, 185). fv1s. Wright heard the Defendant ye!I to the two gir!s, "homeys,
i'r:1
.
not going to snoot you. ., 1·---·
I 1
· 1 • pp .. t :::i-~...,-::i~
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. . ,_,.\ 1. Tl
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,
1,2) girls appeared
frightened and were rnoving out of the Defendant's way. (TT 1, p. i58). Ms. \//right
th
Sd'.\/ ~; al· r tf·.. 1e
n ,r ··,·
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hcodie pulied up a "litHe bit over his face." err 1, pp. 158-59, 182, H34-85, 187-88). She
was able to recognize the Defendant because his hoocie was falling off of his face as
he was running. (TT I, pp. 159, 185).
!V1s. Wri;Jht did not hear or see the actual st,ooting take place because she ,;,;as
moving her vehicle: and the music in her car nad been playing at a loucl volume. (TT 1,
p. 160). However, as the Defendant ran past her with the gun, Ms. \Nright heard her
mother screaming at her to get inside of the building because a sheeting had just
occurred (TT 1, p. 160). At this point, everything "clicked," and Ms. 'Wright reared !hat
something had happened to Ricl,y. (TT 1, p. 160}. She ran back into her apartment
I »JI
.
building and saw Ricky lying on the floor near Ms. Lane's door, unresponsive. (TT 1,
pp. 160-61, 187). Paramedics eventually arrived and transported Ricky to Presbyterian
Hospital (TT 1, pp. 162-63). While at the hospital with Ricky's family, Ms. Wright
I .
. learned that Ricky had died after sustaining multipk~ gunshot wounds to his trunk and
forearm. (TI 1, pp. 51-62, i63).
\;\lili!e stil1 at 1r·1e hospital, Ms Wright spoke with Detective Harry Lutton and told
f!:::~
tJ
ED r1irn thal a person named Hay Ray shot Hicky. (TT ·1, pp. 164-65, 269, 295). She
~ aJreed to accompany the detectives to police headquarters in order to identify the
i,
she conf:rmerJ to the officers that she wou:c b,'? able to identify Hay Fiay if she saw his
face again. (TT 1, pp. 165, 170, 1 72, 295). Ms. Wright was shown a binder fillecl v11it11
photographs and was asked 1f she recognized the shooter in any of the pictures. (TT 1,
pp. 166-67, 170, 297) While lookinq at the pictures in the book, she recognized the
Defendant's face and identified him as the shooter. (TT 1 pp 167 171 ?5,1·t
) ' 1 I - I
?t::A
V •1
.._ I
?OR.
•- .._, ..,,J
300). The Defendant was appreriended five (5) days later, after initiaily attempting to
fiee from tile officers who were executing his arrest warrant. (TI 2), pp. 78, 81-84, 86,
88).
I. IL
l\. This court did not abuse Its discretion In admitting the Defendant'a
statements into evidence because they were Iawtully obtained and their
probative value was not outweighed by the danger of unfair prejudice
under Pa. R. E. 403.
The Defendant's first three (3) allegations of error seek to attack the admission of
statements that he rnade after he was taken into custody. The Defendant's first
contention-· that the Commonwealth failed to present any evidence to prove that his
statements were constitutionally obtained -· should be deemed waived on appeal.
(Concise Sta!t)ment, pp. 3-4).
The Defendant ii!ed a motion on April 2, 2014 seeking, arnonq other things, to
suppre as statements he rnaco to detectives on Auqust S, ?01 J, subsequent to his
arrest. (Pretrial Motion, filed on 4/2/14, pp. 10-12). In his motion, the Defendant stated
Piat, after he was arrested. he invoked his Mirende rights and "declined lo speak with
officers without an attorney present." (kL at 1 O). However, in the motion, !he Oefenclan!
immediately conceded lhc1t he rein1tiated the conversation with the detectives. {Id. at
1 O) Wlien the Def0ndant was informed that he was going to be charged with a
homicide. he remarked that he was Just a cJrug dealer and that he did not do that kind of
Uw1g. (id ) The detectives then asked the Defendant about the surveillance system at
the apartment buitding, at which point the Defendant said, "That's it. I'm done talkinq."
(LdJ
;·.·:,;
,._.-,:
•:-:-.'i:
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',v"
On April 15, 2014, argument was held on the motion. Neither party ever
indicated an intention, desire or n..;ed to present testimony or anything ether than !cga!
argument on the issue of whether tile Defendant's statements were admissible. (Pretrial
Motion ~h-=:aring, 4/15/14, pp. 4-12). In support of the Commonwealth's argument, the
Ass.stan: District Attorney provided the following recitation of what transpired on the day
tr.··.· of the Defendant's arrest:
1/l
WJ
[The Defendant] was informed of his Miranda rights, as it were. He
expressed the desire not to talk with the detectives They got up to leave
and 11e said, "Can I ask you a question?" They said, "Okay." And he says,
"What is this about?" So they explained, "You are being ctiarged with a
homicide," at which point he says, "I'm not into that, I'm a drug dealer.
Look at my record." (The detectives] said, "What about the surveillance
video?" That's when [the Defendant] says again, "That's it, I'm done
talking."
(Pielri.cil fv1oticn Hearing, 4i15/14, p. 6).
Hie Oefen<1c1nt never objected to or otherwise disputed the factual accuracy of
tr,e ConHnonwe,,!ih':, position as to his statements or how they were obtained, and it
;/,.::1'.j clear that the .siar·ties vvere in ngr•::e1T18nt as to the c.rcumstancas surroundinn ~ tt~e
interview (Pretrial Motion Hearing, 4/15/14, pp. 5·7). The Defendant conceded that he
r9initiatecf c:onversation vvith the detectives . so the sole issue at the hearing was
whethei the jury shouid hear the statement, "That's it, I'm done talking." (Pretrial Motion
Hearing, 4/15/14, pp. 5-7). The parties agreed, at least implicitly, that an evidentiary
hearing was unnecessary since neither party disputed the facts surrounding the
Dcfondan!'s statements. The Defendant never requested an opportunity to question the
detectives as to how his statements were obta.ned, and he never raised an objection as
to U1e absence of testimony on the issue. Although the Defendant had two (2) different
, '
'
attorneys during the course cf his representation, neither one - Mr. Aaron Sontz nor Ms.
Carrie Allman -- ever took issue with the fact that only argument was prosontsd in
support of the motion "It is axiomatic that only issues raised by specific objection in the
trial court may be addressed on appeal." Commonweajth v. _Wi!lis, 552 A2d 682, 690
(Pa. Super. 1988). Given the Defendant's lack of a specific objection before this court
on this issue, the Defendant's rirsl issue should be deemed waived.
I-
.
The Defendant's second allegation of error is that this court erred by denying his
motion to suppress the statement "That is. I'm done talking," because the statement
"was obtained in vioiation of his constitutional rights.'' (Concise Statement, p. 4 ). This
contention is without merit. It is weu-estabfished that an appellate court's "standard of
review in a.ddrr:~ssing a challenge to a trial court's clenial of a suppression motion is
limited to determining whether the tactual iindings are supported by the record and
·./\.ihsthcr the !e~Jdl conclusions drawn from those facts are correct." Ccmn1on_'-/./CC1f_ttt_Y:
Q~J~:'.'.3CJ_;?, SGO A 2cJ 102, 112 (Pa. 200<1} (citation omitted). "Where the record supports
ihe factu,~l findings of the iria! court, [the revievving court is} bound bv those facts and
may reverse only if the legal conclusions drawn therefrom are in error." Commomvealt.r1
v vvells. 916 A2d 1192, 1194-95 (Pa. Super. 2007).
A.s an initial matter, the Defendant's characterization of how the events transpired
is inaccurate and misleading. The Defendant contends that the statement a! issue was
unlc1wful!y obtained because, alter he "initially u.vokec his l'viiranda riqhts." the
!2
I
.
~
"detectives continued to question" him ''concerning a topic that was likely to elicit an
incriminating response.~ (Concise Statement. p. 4). However. this case docs not
involve a scenario where the Defendant invoked his Miranda rights but was
nevenheless hounded by detectives to abandon riis rigr1ts and talk. To the contrary, tna
detectives in tnis case completely ceased all questioning after the Defendant expressed
his initial desire not to speak with them, and they never attempted to pressure him into
talking after his initial invocation. The detectives immediately halted the conversation
and wore preparing to leave the interview room when the Defendant stopped them and
inquired whether Ile could ask them a question. (Pretrial Motion Hearing, 4/15/14, pp.
5 6) The DefE-Jndant asked, "What is this about," and the detectives explained that he
was being charged with a homicide. (Let at 6). The Defendant then stated "I'm not into
that, I'm a diug dealer. Look a! rny record." (ld. at 4-6). The detectives followed up his
assertion with ihe question, "what about the surveillance video." It was at this point that
the Defendant saicl "That's it l'rn done talkinq." (!.s:L at 6).
"[/'.\] suppression court reviewing a. statement made after thi3 defendant's initial
invocation of the right to remain silent must recognize as pivotal Hie purpose tor whicn
t11e renc~wed interrogation was conducted and the circumstances under which it
occurred "Common,··:calth v. Harris. 972 A.2d 1196, 1203(Pa. Super. 2009).
Specifically,
judicial inquiry in each instance should focus on the circumstances
attending the defendant's invocation of his[] right to silence, as well as the
circumstances attending any further attempt at questioning. Hence, the
test should ask wbetber the ottici«! purpose of resurning quastioning was
00
lM
to entice the arrestee to abandon his right to remain silent, or simply to
find out whether he or she had a change of mind. Only then can it be
concluded whether, in faci, th..-: defendant's ,;right to cut off quostionino"
was "scrupulously honored."
I. . H~rris, supra. at 1203 (quoting Commonw~_?lth v. Her..£Y, 599 A.2d 1321, 1325 (Pa .
Super. 1991 )) (emphasis added). Thus, the critical inquiry in these situations is
"whether the police fully respected [the defendant'sJ right to remain silent. or whether
[H1e defendant] later waived that right." .ti.?.I!..i.~, supra, at 1204.
m
I
It is clear that the Defendant's statement 'Tm done talking" was not the product of
any police-initiated questioning. His statement was !he direct product of his own,
voluntary, un-cocrced. and unprompted decision to reinit,ate conversation v,;ith tile
detectives. The "law is vve1!-sr:~ttl(sd that a detcncant who requests counsel at any time
during a custodial interview 'is not subject to further interrogation by the authorities untii
counsel has been made available to him, unless the accused himself initiates further
cornmunicetiott, exchanges, or corwersetions with the potice." Commorw,;er;!th v.
f_Q.~_fl._C~t,. 903 A2d i 139, 1150 (Pa. 2006) (quoting !;_9w9_.!:Q~ .. Y.c_!.\[i?.QD?, 45·1 U.S. 477,
The detectives "scrupulously nonorec" his initial invocation of his right to rema.n
silent. In fact. they cut off all questioning and were wa:king out of the room It was only
after the detectives began exiting !he room that the Defendant himself stopped them.
Tno circumstances surrounding the interaction demonstrate that ihe "orticial purpose"
~
Mi
the Defendant "had a change of miner about speaking with them about !he incident after
he reinitiated conversation. After his iniiial invocation of ltAitc:1nda, the Delcndant
expressed his desire to reengage the detectives and discuss the circumstances
surrounding his arrest His "I'm done talf585 A.2d 1, 6 (Pa. Super. ·1990).
Nor does this case involve a situation where, "from the moment [the detective] initiated
the conversation with the [defendant], [the detective] was attempting 'to entice the
[defendant] to abandon his right to remain silent." .!:i~D.IY, supra, at 1325.
Furthermore. even if the question about the surveillance video was likely to elicit
an incnrmnaunq response, the Defendant at that point had t:iffectively waived his
Miranda ri:.Jhts l)y changing his mind about speaking to tile detectives without an
attornev and re-inrti2,ting conversation. The Defendant expressed that he understood
his rights. which was clearlv dernonstrateo by his initial and subsequent invocations,
and the dctecttves had not even had an opportunity to leave the room before he
questioned them about why he was arrested. (Pretrial Motion He arino, 4/15/ 14, pp. 4-
6): (TT 2, pp. 92-93). The Defendant also admittedly is no stranger to the criminal
justice system. given his statement that the detectives should look at his criminal record
because he is a cJrug dealer and not a murderer. (Pretrial Motion Hearing, 4/15/14, p. 6;
1/:,
Accordinqly, the totality of the circumstances indicates that tile Defendant
knov,ing!y and voluntarily chose to waive his ,v1iranda rights aftGr his initial invocation.
The (act that t1e changed his mind for a second time and decided to stop talking does
not render his statement inadmissible under Miranda. See ~O(THnonvvearth v. Cohen,
53 A.3d 882, 886-87 (Pa. Super. 2012); See also fdY!_ards, supra, at 1150-51. Since the
Defendant prompted the officers into a conversation within seconds after his initial
invocation, and since the same detectives were involved, the fact that the detectives did
not re-f.;1irandize him or have him till out another waiver form does not preclude a finding
of an effective waiver See CQ.!J.~n. supra, at 887; See also ·------------·-
Commonwealth v.------
Baez, 21
/\.3d 12FJO, t 286 (Pa. Super. 2011 ). Because the Defendant's voluntary statements
were not obtained in violation of rv1iranda, this court did not err by denying his motion to
suppress.
1 he Defendant's tr,irf.i a:legation of error is that this court erred by admitting his
statement "That's it. I'm done tatkinq" because it violated rule Pa. R. E. 403. (Concise
Staternenl, p 4) The court notes that the "slandc:'1rd of review with respect to
evidentiary ruli,igs has been long established: The trial court's rulings will not be
disturbed absent an abuse of discretion." Cornmo,Jwealth v. Einhorn, 911 A.2d 960,
9f37 (Pa. Super. 2006) "The trial court abuses its discretion if it misapplies the law or
[rules] in a manner lacking reason." 1.9-' at 967 (internal quotations omitted).
1C
,v
Pursuant to Pa. R. E. 403, "[oJtherNiS(~ relevant evidence may be excluded if its
probative value is outv1eighed by its potential for prejudice." Cornrn0(0.Jye;Jjth~
Ar_itido_c[QJ, 84 .,.·\.3d 736, 750 (Pa. Super. 2014). '"Unfair prejudice' means a tendency to
suqqast decision on an improper basis or to divert the jury's attention away f rorn its duty
of weighing the evidence impartially." Cqmmonwealth "'._....fQ.Q...Q, 965 A.2d 1212, 1220
(Pa. Super. 2009) (quoting Pa. R. E. 403). The Defendant argues that the probative
value of his statement was outweighed by the danger of unfair prejudice because "the
I jury may have considered [the statement] as evidence of the Defendant's guilt."
(Concise Statement, p. 4). This contention has no merit under these facts.
The statement at issue came on the heels of the Defendant denying his
1rlVulvement .n the homicide, and it was admitted to demonstrate the natural progression
of the investigation and explain how the detectives' interview with the Defendant
conciuded. (Pretrial Motion Haarinq, 4/15/14, pp. 5-6); (TT2, pp. 92-94). Had 1t not been
adrnitted, the Jury would have been left with even more questions about what had
transp1,eci between the detecrives arid the Defendant during the interview. There would
tie viriuaily no context to explain why the mrorvrew ended after the Defendant denied
guilt by saying "That's not me. Check me out" after he was told that he was charqed
with a homicide Significantly, the Commonwealth did not refer to or otherwise attempt
to exploit the Defendant's statement in its opening or closing arguments (Trial
Transcript, Vol 3 ("TT 3"), 11 /25/14, pp. 3"1-40, 45-68). The court notes that "the mere
revelation of silence coos not establish innate prejudice," and the admission of the
Detend.c:;nt's statement was not unf airly prejudicial in this case because it simply showed
1?
that the Defendant changed his mind about wanting to speak with the detectives after
he re1nitiated the conversation. Cornmonw~alth v. Di~,J:cola, 8GG A.2d 329, 3:JG 37 (Pa.
2005).
I
However. even assurninq for the sake of argument that admission of tr,is
statement constituted error, any error was harmless under these facts. This court is
aware of the law regarding the general impropriety of referring to a defendant's post-
arrest silence See e.g., Comrnonwe alth v. Mitchel!, 839 A.2d 202, 212-13 (Pa. 2003);
Commonwealth v. Costa, 742 A.2d 1076, 10T7-78 (Pa. 1999); Commonwealth
--- ... ----------·--·-·"----~··---------- ------·-----------·---v.
J)111:1e[, 454 .ti.?d 537, 540 (Pa. 1982). The concern that forms the basis for not
diLJwu·,g reference to pcst-anes1 silence direct!y re!ates to thf.', potential danger that a
However: any concern that the jury in this case wou!d construe the Dclencant's
statement as a tacit admission of guilt was substantially, if not entirely, diminished by
~1 /8 \FJa. 1998) (''E.ven an explicit refereru:e to silence is not re'..·'Grsib!r~ error where it
occurs in a conte:d not i:ke:y to suggest to the ;ury that siience rs the equivalent of a tacit
admission of guilt")
Indeed. defense counsel engaged in a lengtt1y and ihorough explanation to the
jU0J that the Def endaru's decision to stop talking to the police was not at all a product of
a ouiilv mind, but rather an intelligent and commendable deers.on to refrain from
speaking any further without an attorney. (TT 3, pp. 38-43). Counsel took a moment to
offer the iWY '·'f rec I ega: ' acv.
l c' e 11
ano exp1a1nf1(1
I I ' ' tina: t ,n
' d' 1vli...1ua,s
'.J
I
sih oui'd never spea,< t o lh, ,e
I
police without representation, especially if they are innocent. because the police may
"intentionally or unintentionally misconstrue" their statements. (TI 3, pp. 39-41 ).
Counsel made clear that the Defendant was asserting his innocence and that the only
reason he stopped talking was because he decided to simply let the process play out.
(TI 3. pp. 39-43). Because counsel's closing argument eHectively removed any
impression that the Defendant fell silent because he was guilty, and because the
prosecution never made reference to the Defendant's statement in its arguments to the
jury, any error in allowing the statement is harmless because it is unlikely that the jury
equatf.')ci the-; Defendant's silence with an admission of guifl. See ~_QQl_f:rlQ!:lY.Vealth_v.
i:S.~.LQ:l£'. 6:·'. A.3d 1038. 1052 (Pa. Super 2013) (explainin•J that harmless ~?rror analysis
arJ~)!ies to context of pc:,st-arrest silence).
Additionally, it is unlikely that tr1e Defendant's statement, when viewed aqainst
tt~e eviccnce as a whole , contrit•uled to the verdict. The overan case against the
Defendant was strong. The jury was presented with testimony from a witness who saw
the victirn and the Defendant together minutes before the shooting and who saw the
Df::fendant running away from the scene of the shooting, moments after it occurred, with
a gun in his hand. This witness identified the Defendant to the police on the same day
as the shooting by retcrencino his nickname, and she was adamant and unwaverino in
her positive identification of the Defendant n1mugh a photo as the perpetrator. She was
also adamant and urwvavering of her identification of the Defendanl as the perpetrator
during trial. Addltionally, the jury viewed a videotape of the perpetrator fleeing the
·
shooting scene. an d a t ric.!1
iend •t..l ofI tn' t:::
~ 1•-'"' a, n indicated
..Jl:,l<:'1 ...I\.dant UI o,t: J that
I ld 'he
I I p"'--on
c;I::, ·'nI t'-e
U f I
videotape looked iike the Defendant. 11 is certainly possible that the jury was also able
to identify the Defendant from the video.
Accordingly, for all the aforementioned reasons, the Defendant's t11ird contention
is without merit.
B. The Pretrial Identification Procedure was not unduly suggestive under
these facts, and Tayla \Nright's pretrial ident!Ylcatkm and her in-court
identification did not vioi~te NH:. Detend.anrs due process rbahts
because the Identification was made under circumstances that were
suf"ficientfy- reliable,
The Defendant's tourth allegation of error, that this court erred by not
s1..1ppr-?.ssing ``11s V\liighfs pretrial and in-court identification of the [)efendant 1 is \JVithout
r '''"'
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I (.J. ~ .. ,,~ ..... ),.) L.l 11(.l :1..:;1; ... ( ... to.J ,.a
;,
tri:,i court's de nial of a suppression motion ts l!rr1ited to deterrnining whether the factual
findings are supported by the record and whether the legal conclusions drawn from
those facts are correct." O~J&2U$, supra, at 112. "Where the record supports the tactual
findings of the trial court, [the revimving court is] bound by those facts and may reverse
only if the legal conclusions drawn therefrom are in error." We_U~. supra, at 1194-95.
20
Wi:h respect to identification evidence, our apoellate courts have explained that:
[iJn raviewinq the propriety of identification evidence, the central inquiry is
whether, under the totanry ot tile circumstances, the identification was
reliable .... Suggestiveness in the identification process is but one factor
to be considered in determining the admissibility of such evidence and will
not warrant exclusion absent other factors .... [T]he following factors are
to be considered in determining tile propriety of admitting identification
evidence: the ooportuntry of the witness to view the perpetrator at the time
of the crime, the witness' degree of attention, the accuracy of his prior
description of the perpetrator, the level of certainty demonstrated at the
confrontation, and the time between the crime and confrontation. The
corrupting effect of the suggestive identification, if any, must be weighed
I
'.
Commonwealth
against these factors.
v. _Moye, 836 A.2d 973, 976 (Pa. Super. 2003), appeal denied, 851
A.2d 1 <12 (Pa. 2004) (citations omitted) (emphasis aodeo).
Notv,ithstandmg the fact that Ms. Wright knew who the Defendant was and knew
what he looked like prior to the day of the shooting, the Defendant takes issue with the
fact the! she picked out his picture in a "gang book" which was organized by
neighborhood and had the names of the individuals displayed underneath thr~ pictures.
Thr: C)i~fer:r1r1nt1s contention arguably woulo have had merit if the facts involved a
c'··,.,~·"l,
-.)i.l<".,1,11~t,,-;..... 1... :,. .Jri...,!i;i"--:,+-iori
I\.J\,:."IIICIVU\I 11....; scenario h:1t
l._l1~1"-"1L.I.._.., under
11.....,....,,1 !'-11-'.'.)50
,f,.._. '- ra ,,t~
.......tl-)c issue
~>Jl\/1'-"'1...,,•~ ...... c- '"'/'H,QU!
it~r•\tl merit
\11·11i.,
At the suppression hearing held on June 8, 20i 4, it was established that Ms.
Vvright spoke with Oeiective Lutton at the hospital and agreed to accompany Detective
Luttc,n and h.s partner to the homicide office This occurred less than two (2) hours
after her boyfriend was murdered. (Suppression Hearing Transcript ("ST"), 6/8/14, pp.
4·5). As far as the police . .vere concerned, the shooter was still armed and on the
loose. and the officers were attempting to locate a suspect (ST, pp. 8, 42). vVhen they
arrived at the homicide office, Ms. Wri9ht told the detectives that the shooter was
someone whom she only knew as "Ray Ray." (ST, pp. 7, 17, 19, 29, 41-42). She did
not know nay Ray's first or last name, but she told the detectives that she had known
him for a "couple [of) years" and knew that he was from the Homewood area where she
was from (ST, pp. 7-8, 17, 19, 42). Ms. Wright said that she would "definitely" be able
to identify the person she knew as "Ray Ray" if she saw his face again, and she never
qave any inclication that sno did not know who the shooter was. (ST, pp. 17, 41 ).
since Ms. \/fright atre ady knew the Oefen,jant, tr,e detectives provided her witr1 a
b!l,chor that containecl 132 photographs. (ST, p. 14). The spine of the binder was
captioned "Zone 5 Gang Book." and each page in the book contained eight (8) pictures
ont n~r,·i
...:_...(.l\,.,11 "'!·,.,,..,
•.)I..~'._., re:-,
\'._J nn
>r''f-'' "0 1-· ,q.g I Ii •,•·~ ?4\I" The oicture s
·-~···•• ,._.._..t._. lPPJ-f'.l_. orcaniz ed bi· neionborno
``j._...,14-·v,._.. .'t 1-..,.l~-J~\_,,jj1•._1UL.i ..-..d
a11ci susp•::}c!ed \}-:lfl0 affiliations Di.splayed underneath each of the r.•ictures was the
11;:une of the incliv1ciua1 shown. (ST, pp. 13. 24-28, .37) Since the \Jetectives Jid not
know who ··Hay Hay" was at that time, they hao no idea if the Defendant's picture would
even be contained in the book (ST, p. 38).
Detective Lutton instructed ~v1s. Wright to take her time and look through every
single picture in the book. (ST, pp. 7-8, 25, 31 ). Although Ms. Wright indicated that the
Defendant was from Hornewoco, Detective Lutton told her not to focus 011 particu'ar
areas because it was possible that the Defendant could have rnoved. (ST. pp. 8, 25).
Detective Lutton was present the entire time that Ms. Wright locked through the pictures
in the binder. He was confident, based on his observations of her as she looked
through the binder. that Ms. Wright was only looking at the faces of the individuals and
not rei'!ding their names. (ST. pp. 9, 13, 18, 3 f-34). He saw Ms. Wright scrolling her
finger across the faces of the individuals, and he saw that she did not rush through the
photographs. (ST, pp. 9, 12, 18-19, 31 · 33).
Before identifying the Oefenclant, Ms. Wright came across the photo of a man
whom she idcint1t1od as Tay Tay, one of the individuals that was present in tile
acartmcnt
I • '·~:..
(_;. ~ {,L I •
h•1il>-•j'
j
.·l"
I LJ I • ~ ...... _Y
h~sfuro
,,.J - f • ......
tr,: :>--
l •• c;hnnhng
....
I I"•' ~ •• I I ••
Q('Ct •(rPd
..... ..... • -..~- •
1\1S-f ,
oo
,. .. ,-· '
7I , 111)
I...J •
the Defendant's face in a photo and identified him as the shooter. (ST, pp. 10- 12, 29).
,1·1e book containecl only one ( 1) photograph of the Defendant, and Ms. Wright identified
the Ot"'!f(~nclant from that photo without any hesitation or uncertainty. (ST, pp. 11-13).
The Defendant's photograph was located approximately two-thirds (2/3) of the way
th1ou9i1 the book, on the t)acksid£~ of the pagf1 that contained Tay Tay's picture (ST, p
i 11· lt should be noted that Det,=;ctive Lutton instrucled Ms. VVriaht
~ to continue lookmo~
through tne rest of the book, even after Ms Wright identified the Defendant from his
photo (ST. p 12)
23
Under the totality of the circumstances, the fact that the pictures were organized
by gang affiliation and had the names displayed underneath them did not render the
identification process unduiy suggestive in this case because Ms. Wiight already knew
that u·ie Defendant was the shooter. Further, the procedure employed was not
de sioned
'-"
to "empl1asize" or single out" any particutar suspect. See ---··---·---··-····-···
Commonwealth-··----··v .
Q.~'L!.;:;, ·1 7 A .3d 390, 394 (Pa. Super. 20 t I) ("Suggestiveness arises whan the police
employ an identification procedure tha: emphasizes or singles-out a suspect.").
Moreover, the fact that the names were displayed underneath tr1e pictures was not
problematic in this scenario because Ms. Wright did not know the Defendant's real
name.
i+ovve ver. even assuming for the sake of arqurncnt that tr1e procedure was
unduly suggestive. the totality of the circumstances show that it was not "so
2009) (noting that "suggestiveness alone does no! warrant excrus.on"). Courts routinely
hove explained that "tile central inquiry is whether. under the totality of the
circumstances, the identification was reliable." ~!?J!..L~. supra, at 394 (quoting fl,1.9v2.
suoie, at 976); f!'..1ar!_§Or_1__yJ1rathwaiL~. 432 U.S. 98, 1 ·14 (1977) ("reliability is the linchpin
111 clf3teimining the admissibility of identification testimony")
As noted, this is not a situation where Ms. Wright only caught a brief glimpse of a
stranqer with whom she had no prior familiarity. Ms. \/I/right S3'N tho Dotendant
approaching her apartment building through her front window; she saw him and had a
conversation with him as he stood in front of her door; she passed him in the hallway as
she left t11e bui!ding with her daughter; she saw him running away from the building after
the shooting, holding a gun. Ms. Wright had ample opportunity to observe the
Defendant. Wr1en she first saw him, Ms. Wright immediately recognized the Defendant
as someone she knew from the Homewood area where she had grown up. Although
Ms. Wriaht knew that the Defendant was from a particular area, she looked at ever;
~;1nq!e pictuu-? in the book anci di(J not specificalty focus ht?r attention on any particular
t)elit~\..,eCJ ··r:?ay r~ay11 beiongcd to any particular gang, so the tact that tho book was
orqaniz ed by ganrJ affiliations is also of no consequence.
F urt/tf;rinorc ~ Octective Lutton was present the entire time rv1s Wright was ~JC)in9
u1rcugr1 the binder. and it '/'10.s clear to him that she 'l/3S fook:ng at tr·;e faces of tr1e
ind1viduais, and not t1·1eil' names. Common sense supports the detective's obsorvations
since Ms. Wright did not know the Defendant's real name. Significantly, Ms. \Vright told
the cJ(~tectives that she would "definitely" be able to identify the Defendant if she sa 11 his 1
fc1cr? acpin, and sh£-1 imrncdiatcly picked out the Defendant's pit.;ture upon seeing it. Ms.
\,'\'right 1dcnt:f1cd the Defendant as the shooter just hours after the incident occurred.
and she was confident in her identification.
·-··-·-:
L_.,
25
Accordingfy, Ms. Wright's identification was reliable under the circumstances.
In this court's estimation, the ider.tificatior. procedure uti!i2od in this case is similar to lhG
use of a yo.1rboo!\, which contains photos, names and categorizing information such as
grade in school. Courts have upheld the use of yearbooks in identifying perpetrators.
See e.g., Haun v. State, 451 Ne.2d 1072, 1075-76 (Ind. 1983); State_1Lll:!.f!s.Y, 453
So. 2d 1234, 1;237-39 (La. App. 1. Cir. 1984); !,lnit``L``?.l~.$_y_,_rj_§D.!9?.Q,681 F.2d 1127,
1132-33 (9th Cir. 1982); Lit1L~LY.:. . .9l?le, 475 Ne.2d 677, 681-82 (Ind. 1985); Lo__.rg
Matthews., 23 A3d 250, 259 (Md. App. 2011 ).
Because the pretrial identification was reliable, its admission a! trial did not
violate the Defendant's due process rights. P:,dditionally, because Ms. Wright's pretrial
v10!::ito 1110 Defondant's due process rights. To that end, the court notes that, before Ms.
VVnght officia!ly ide11!disd the Df?fendant as "Ray nay" al !rial, she tt,s!if:cd that she
irnrnediate!y recognized him when she opened her door. and that the Defendant also
,-ecogni?ed har and looked shocked to see her. (TT 1, pp. 146-48, 156) Ms. 'vVright t-iacJ
opcnco her door ·-· asking him why he was banging on her door and wnv he was there,
questions to which ho responded, and then observ1r\J hirn a9ain as she walked past him
in the hal:way on ner way out of the buiicJing. (TT 1, pp. 146-48, 152-53)
On a final note, the Defendant's contention that the Commonwealth failed to
present the testimony of Ms. Wright at the suppression hearing to demonstrate the
reliability of the identification should be rejected outright and deemed waived. (Concise
Statement, p. 4). During the suppression hearing, defense counsel dismissed the need
to have f1,,1s. Wright testify and stated that the "suppression motion is regarding the
procedural aspects of the identification" and that he was "not so much concerned about
the fact that she identified my ctient" (ST, p. 16) (emphasis added). Counsel explained
that his motion was only challenging the procedural aspects of the identification
procedure that was employed, and he stated that "regarding facts such as how long this
witness had the opportunity to observe the Defendant, tba: goes beyond the procedural
aspects. That goes to the weight and credibility of her identification," which lie 11as no!
1
ch£iiienging (ST, p 16). Accordingly, the Defendant's contentions that this court erred
in nor having testimony by the witness a! the suppression hearing are meritle ss. and this
court did not err 11, df?nying the motion to suppress her pretrial and in-court i(jentification.
c: . . I'his court did not abuse its discretion by afiov:.dng Detecti\le Hal ::3(:dirt tc}
impeach Natwauna Lane with statements she made to him days before
trial because the probative value 01 her prior inccnsistent statement w;.;.s
not outweighed by the danger of unfair prejudice under Pa. R. E. 403.
The Defendant argues that this court abused its discretion by admitting
Natwauna i.anes prior inconsistent statement because the statement was unfairly
prejudicial under Pa. R.E. 403. (Concise Statement, p. 5). As noted earlier, a trial
court's evidentiary rulings "will not be disturbed absent an abuse of discretion." Einhorn,
....., ·7
.C: I
supra, at 967. "The trial court abuses its discretion if it misapplies !he law or [rules) in a
manner lacking reason." Id. at 967 (internal quotations omilled). Pursuant Io Pa. R. E
403. "[o]thervvise relevant evidence may be excluded if its probative value is outweighed
by its potential for prejudice." Antidormi, supra, at 750. However, "[e lvidence .'Vill not be
1
prohibited merely because it is harmlul to the defendant." Let at 750. Indeed, the court
is not "required to sanitize the trial to eliminate all unpleasant facts from the jury's
consideration where those facts are relevant to the issues at hand . . " "[E]xclusion is
limited to evidence so prejudicial that it would inflame the jury to make a decision based
upon something other than the legal propositions relevant to tile case." ld at 750
0
(quoting Cornmonwealth v. Owens, 929 A2d 1187, 1191 (Pa. Super. 2007)).
1\s the Dd..=inc!ant acxnu.,;ledges, the centra, issue at trial concemco the identity
of the shooter Two (:::') cl,"lys rwfore Natv.;auna ("Nay Nay") Lane testified at trial. she
rnet wi!h Detective Bolin and toid him that she saw the Defendant on the clay of trie
shooting talking to the victim in the hallway of the apartment building. (TT 2, p. 260).
Trus st::1te!neni. was made verbally to the detective and was not recorded in any iashion.
(TT 2, pp. 260, 269· 70). In lig1"1t of the inforrnafon that ,v'\s. Lane provided to th:.-J
detective trnrneoiately before trial, the Commonwealth chose to call ht"?r as a witness.
The Commonwealth had ever; right to expect that Ms. Lane would testify consistently
with the statement she had made just days earlier. (TI 2, pp. 144, 203, 208-09, 215,
1.::;
G~ 221 ). However. when Ms. Lane took the stand and testified, she- insisted that she did
not see the Def end ant in the apartment building on the day of the shooting. (TT 2, pp.
170-72, 1s,1.1i35, ~'40, 242, 247). ivls. Lane was then confronted with the prior
; . .;=
28
statement made to Detective Bolin during her testimony, and she denied making it. (Tf
2, pp. 202, 237-242).
"The general rule is that a prior inconsistent statement of a declarant is
aomissible to impeach the dsclarant." Commonweal!h v_,_'2_rad~. 507 A.2d 66, 68 (Pa.
I ..
,;<
1986). Consistent with the rules of evidence, Ms. Lane's statement was admitted for
the sole purpose of impeachment because it did not meet the criteria for admission as
substantive evidence under Pa. R.E. 803. 1. The court a!!owed Detective Bolin to testify
about the conversation he had with Ms. Lane mere days before she testifiecJ because
her statement was materially inconsistent with her triai testimony. (TT 2, pp 260, 269-
Contrary . to the Defendant's argument, the probative value of Ms. Lane's ori
'
or
incnns;stent statement was not ourwciohec by the dancer of unfair pre Judice The
mconsistcncv related to a key issue at trial, namely identification. Ms. Lane's testimony
at trial directlv contradicted the testimony of 1\--1s. \t./right, who testified that the Defendant
was present in the tlalh,vay, as was Ms. Lane. It was vital for the jury to assess the
crE'C1itJi!ity of the two (2) women in order to resolve the issue of identification. Ms.
Lane's statement to Detective Bolin provided the jury with a proper context in which to
11-1eigh her testimony and determine whether she testified credibly at trial. Althouqh the
0, ereru
i d ant argues fh
il .a \ "t'nere was a qrcat t risk
. I ·•.
mar,l ' '!
cespue ·
a cautionary ·
instruction, the
;,,r-,.1
jl...JIJ would.I.._.. consider 1\;]S
J.AI .v,\,...1 ,., · ans's
I1..-1..,.,,..,, 8i'P 1'J':,r-J
· •-....:::,"-"' st::J....T.0. fn'"('IS
V ...._.. !, •,, :cir..;
,. .......,, substant.vc evidence or' n.l,
.._ ' . Ill'~ ... VIV J\_,(; i\/1!,
.
!
.
.
Williams' guilt," this argument relies on notl1ing but mere speculation. (Concise
Statement, p. 5). The Cornn1onweailh never attempted lo suggest that this statement
should be considcr"~d as the truth, and the Jury was instructed multiple times that it must
not consider her statement for anylhing other than credibility purposes. Such cautionary
instructions are routinely given, and there is no indication that jurors ignore them.
Indeed, at the time that the prior inconsistent statement was admitted, this court
strongly cautioned the jury that it may only consider the statement to assess the
credibility of the witness. (TT 2, p. 260). Specifically, the court provided the following
instruction:
Ladies anci gentlemen of the Jury, you should be aware tha: this evidence
is not to be ccn~:;ic.iered t)y you for nh':: truth of the matter. fl So it's not fur
n-je trutn of wr.etner or not f\Jay r"Juy actually saw the defendant in the
hcii:wdy ltiis testimony can only be considered by you as to th,1 c(edibi!ity
r,f Ms I ;c>()C, ft'J That is the only '1''3· '1' Ihat
.._,, •-· ·--.,· ~· . !,u .. vo: I can consider
._., ~ ._, ;I [] C:o '''"U
,. , J~
'I' j ,,_,. •;;)
.. ~...._ , . ..J, ,.-1 I . ...._,,
must fo!lDV/ these instructions. 1\s J rcld you eartior, I am the judge Antlg_qrmi, supra, at 750. The statement at issue
was not so prejudicial so as to be inflammatory because Ms. Lane's statement did not
place a gun in the Defendant's hand, and it did not otherwise suggest that she saw the
Defendant participate in the shooting. In fact, the statement did not even suggest that
Ms. Lane was present when the shooting took place.
In fight of the cautionary instructions that were provided. the presumption that the
JUf\/ adhered to these instructions, the importance of a!!owing tr1e jury to make proper
credibility determinations, ano the lack of unfair prejucke, the acmisslon oi Ms. Lane's
orior inconsistent statement as impeachment evidence did not violate Pa. R E. 40~l.
D. This court did not abuse its discretion in denying the Defendant's post--
sentence motion because the verdict did not shock the conscience
In his sixth aiicgation of error, the Defenciani contends that this court abused its
discretion in denying his post-sentence motion because tt1e verdict was againsi the
'NCi~Jht of the evidence. It is ,.vell-estat)!ishecl that:
the weight of the evidence is exclusively for the finder of fact who is free to
believe all, part, or none ot the evidence and to determine the credibility of
the witnesses. An appellate court cannot substitute its judgment for that of
ihe finder of fact. Thus, [the appellate court] may only reverse the lower
court's verdict if it is so contrary to the evidence as to shock one's sense
of justice. Moreover, where the trial court has ruled on the weight claim
.... ,
,_j I
below, an appellate court's role is not to consider the underlying question
of whether the verdict is against the weight of the evidence. Rather,
appellate review is limited to whether this trial court palpably abused its
discretion in ruling on the weight claim.
Cornmomvea!tt1 v. Lewis, 911 ,-\.21j 558, 565 (Pa. Super. 2006); See also
---------••·•--•-•-n••-·
.. M•o•••-.•••••••~•··-••••--
Commonwealth v_SmitlJ, 861 ft.. 2d 892, 895-96 (Pa. 2004). "A true 1.veigh! of the
evidence challenge concedes that sufficient evidence exists to sustain the verdict
but questions which evidence is to be believed." Comrn.onwealth_v. __ Hunzer. 868
A.2d 498. 506-507 (Pa. Super. 2005). However, "[qjuestlons concerning
inconsi.stent testimony ... go to the credibility of witnesses" and ti,e court "cannot
substitute its judgment for that or the jury on issues of credibility." Q§)_~-~..h!S,
supra, at 107; See also Commonwealth .'f:...Y-{lU.~1m~. 854 A.2d 440, 445 (Pa.
2004) ("ln criminal proceedings, the credibility of witnesses and weight of
evidenc0 are determinations that lie solely with the trier of tact, [which) is frne to
bel
f..• ieve
.J I ,_, 'I 0 c,l1'
t,_j., , cart or none of !)1,, evidence ")
• "~-" 1 • '..._., • • 1 • .., ~ V-' • -' ., · •
ln determining whether a trial court abused its discretion in deny·ing a weight
claim, our Suprerne Court has noted that
a new trial should not be qrantad because of a mere conflict in the
testimony or because tht: judge on the same facts would have arrived at a
different conciusion. Bather. the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of greater weight
that lo ignore !hem or to give them equal weigt1t with atl the facts is to
deny justice. It has often been stated that a new trial should be awarded
when the jury's verdict is so contrary to the evidence as to shock one's
sense of justice and the award of a new trial is imperntive so that right
may be given another opportunity to prevail.
Comrnomveaith v. Clay. 64 A.3d 1049, 1054-55 (Pa. 2013) (internal quotations
I
.
:<
and citations omitted) (emphasis added). "[Tlhe trial court's deni2I of a motion for
a new trial based on a weight of the evidence claim is the least assailable of its
rulings." Commonwearth v._ Cousar, 928 A.2d 1025, 1036 (Pa. 2007).
The Defendant's challenge to this court's denial of his weighi claim is
without merit as it is based entirely on issues of witness credibility and conflicts in
I the testimony. The Defendant claims that the testimony of Tayla Wri9ht, the
Commonwealth's central witness, was unworthy of beiief. However. the law is
clear that the fact-finder is free to be!ieve "all, part, or none of the evidence."
V\/d1i;,irns, supra, at 445. This court sat through the trial and had the opportunity
to observe the witnesses and their demeanor. In this court's opinion. Tayla
VVrigl:t was a credible witness who never wavered in her identification of the
Defendant as u-,e shooter. It should be noted that this court also sat as a trier-of-
fact, ,3n1i its dac.sion to convict the Def encant of Person Not to Possess was
witness.
As recounted above, Ms. Wright was present during the time of the
shootinq, and she saw the Defendant running away from the building
ir11rnediate1y after the shooting with a gun in his hand. (Tlt. pp. 157-GO, 185).
Ms Wright testified consistently and credibly that she knew of the Defendant
33
prior to the incident. (TT 1, pp. i 46-47, 209, 251-52). Although she knew him
and came face to face witil him. (TT 1, pp. 147, 252, 267). The fact that the
I Defendant was banging on her door, dF:manding "answers" and questioning
(j whether Ricky had a problem with his "people" made her so uncomfortabie that
11
she removed her daughter from the apartment and made sure that she was away
I .
.
from the Defendant's vicinity. (TT 1, pp. 146-50, 153-54, 209, 240-41, 243, 267) .
I
~
Althougll she saw two (2) other men in the hallway with the Defendant
and Ricky before she left the budding, she saw those men exit the building, get
,.nt,.:.J
. . Cd(..
d. , ....!U, !t,<'.
of ':,·-:,·'IV re:..-; before
t--:1t.)1-t.,.
-,-,!'/.
d.: .ch-,.-"'::,--
,1 !'.}(,.., VI/~:.,/~
1:--·d
Ill:::::-~ ..•.
(-,-··;-
, I I
,I ,~r·
t-J:_L 1 .:.)'-2.~-~)._;,
~,:, 1, :,::,:-
`` 5...,,/ )-
1 I
trt
fill f\!iOmcnts r1t1er she got out of her car, Ms. Wright heard her mother scream Irorn
ti across the street that a shooting had just occurred, and she irnrnediately turned
``
$'.
.......u
to ~,ee the Defendant running away from the building with a gun in his hand. (TT
1, pp 1 SB-60, 184-85, 18 7). The Defendant looked so intimidating running away
from tr;e apartment that he nae to reassure two gi;ls in t,is vicinity that he was nut
go;~g to shoot them alter they screamed at the sight of him. (TT 1. pp. 157-59,
p1~rn
@ 185, 256).
,~,
tfil Furthermore. Ms Wright did not hesitate to teli the police that tho
G D>::!ii"n(i;1nt ,,vas the shooter She irnrnedialeiy told n1e detf:c!ives that Ricky was
Li
1,iHed by a man that she only knew as "Ray Ray", and she voluntarily agreed to
34
, .....
!'•,·:
f
,,.)
·:J
go to the police station so that she could assist in the investigation. (TI 1, pp.
165, 170, 172. 269. 295). Ms. Wright immediately picked out !he Defendant's
face after vievving ovet a hundred pictures, all within a fm,v hours after the
shooting occurred. (TT 1, pp. 164-67, 170-71, 218, 226, 269, 295, 301).
The court notes that Ms. VVrigr1t's testimony was not weakened by Ms.
Lane's testimony at trial. Ms. Lane testified that she was friends 1,vith Tay Tay
and Judd, and she corroborated Ms. Wright's account that there had been an
incident in the hallway around 4:00 p.m. on the day of the shooting that involved
Tay Tay, Judd, Zombie, and Ricky. (TT 2. pp. 155-68). The incident involved
?orE•twesn n-,Ei Defendant, F1icky. Tay Tay, and Judd. (TT 1, pp. i S2-53, 17B. 181,
229-30, ?:35, 24:3, 261 ).
The court also notes that another Commonwealth witness, Stf.?phen
o,o,ver. Jent CiE:d:t:11l;ty to Ms. Wiight's te stirnony that tho Defendant ran out of the
t)uilciinD \,\lith rus shirt pulled over his head. Mr. Brewer was in the parking lot at
me time of the shooting, and he testified lha1 he sav-: someone ffeeing from the
r~
tGi building with "something white pulled over their head." (TI 1, p. 287). As
f;`` rccounteo above, Ms. W;ight testified that she was able to recognize the person
C.~
who was running with the gun in his hand as tho Defendant because the hoodie
U1at he had pu!li,·d over his face kept sliding down. (TT 1, pp. 158-59, 184-85).
ivL;. Wright's testimony was further bolstered by the video from the surveillance
36
camera, from which it is possible lo identify the Defendanl. and which supports
Ms. i.;Vrighl's teslirnony of the aftermath cf the shooting,
While the murder weapon was never recovered and no forensic evidence
connected th-i:: Defend,:1nt to tho crime. these facts were not, and arc not,
I required to establish guilt beyond a reasonable doubt. (Trial Transcript, Vol. 2,
("TT 2") pp. 43-47, 51, 66, 68). Hie court also notes that, although the
I Defendant presented an alibi defense at trial and claimed that he was at Chuck
E. Cheese celebrating his son's first birthday party al the time of the crime, the
alibi was presented by the Oef,2.ndant's family members only. Aside from their
the parr/.. (-rr2
1 _ J }JP ..'71'
) ''')15
r.:- . :, : ..·3·-,ri··}o
i, -JL. 1
3')')~3c.)
c:« .. -.J u,.
;\qai:lst ihis backdrop, the verdict did not, and does not, shock the
conscience o! this court. \. vhich had tho opportumry to listen to the witnesses and
facts were "so clearly of greater weiqht that to ignore them or to give them equal
weight with all the facts is to deny justice." £2@:..'t.'., supra, at 1054-55. Although
fV1s. Wright did not see the Defendant actually puli the trigger, the circumstances
surrounding the incident. and the reasonable inferences drawn therefrom,
estat!list1ed beyond a reasonatile doubt that the Defendant iQ.eJg_``s. supra, at 107. Accordinqty, this court did not
abuse its discretion in denying the Defendant's post-sentence motion, and this
E. This court did not abuse its discretion by allowing Detective
Lutton to testify to Tayla Wright's statements made shortly after
the shooting.
Finally, the Defenclant contends that it was error for this court to allow
Detective Lutton to testify as to statements that Tayta Wrigi'1t made to him on the
same day as the shooting. (Concise Statement, pp. 5-G). This argurnent is
witnout merit. A.s noted above, the "[a]dmission of evidence is a matter within the
38
sound discretion of the trial court, and will not be reversed absent a showing that
the trial court dearly abused its discretion." ConJmg_mvca!H1..Y.c..Handfreld, 34 A3d
187; 207-08 {Pa. Super.2011). "Not merely an error In judgment, an abuse of
discretion occurs when the law is overridden or rnisappued, or the judgment
exercised is man.fe stly unreasonable, or the result of partiality, prejudice, bias, or
HI-will, as shown by tile evidence on record." L<;L
The Defendant asserts that Ms. Wright's statements were inadmissible
because detense counsel "was not given an opportunity to cross-examine the
witne ss about the statements." and no exceptions to the hearsay rule applied.
(_'I``----:
d u,· 1 c;.
,., ·r·,.'10 pric1
. ior consistent
L,.,.:,,~1.. ~c;'., .statement
o~l-;, it. ~a·t ;ec,,,c,
,,.J ...H.n.~. concerns
....,\) \.,..c,1 ~. Mio
... . 11 "·,·~1-,• ,:,. .
,,v,.'d11t
staternc~nt to Detective Lutton at the hospital. (TT t , pp. 291-95). Detective
Lutton testified th.Jt. when he arrived a! the hospital to check on the condition cf
inrorrnation about what had happened to Flic:{y. (TT 1, p. 290). Ms. Wright
beQan pxr/aining to the detective that there had been an argument outside of her
apartment eartier that day and that her boyfriend Ricky had been present for the
argument. (TT 1, pp. 291, 294). At that point, Detective Lutton stopped her from
saying anything further ano asked if she would be amenable to speaking with
them at U1e hornicide office (TT 1, pp. 294·95). Detective Lutton testified that
Ms. Wright agreecl to go to the oHice with them, and when they arrived there, Ms.
Wright told them that a guy named "Ray nay" was tile individual who was
responsible Ior shooting Ricky. (TT 1, p. 295).
]9
'11.
1 ..
Oetecnve Lutton testified as to Ms. Wright's prior consistent statements
after Ms. \/'Jright had already completed her testimony. During her direct
examination, M:;:;. Wright recounted the argument that had taken place around 4
I p.m. that afternoon outside of her apartment. (Tr 1, pp. 139-141, 143-45, 149).
She also testified that she spoke with Detective Lutton at tho hospital and that
she started to tell him what had happened. {TI 1, pp. 164-65}. Ms. Wright was
then subjected to a lengtl,y cross-examination, during which her credibility was
directly attacked and put at issue. (TT 1, pp. 188-262). The defense was heavily
focused on challenging Ms. Wright's statements and the perceived
inconsistencies in her testimony. (TT 1, pp. 193-94, 206-08, 210-212, 217-220,
222-232. 234, 243-46). The Defendant had ample opportunity to question her as
to the statements she made to Detective Lutton at the hospital, and his counsel
certainly took advantage of the opportunity to ask her about the earlier aroument
that occurred outside of her apartment on tr·1e day of the shooting. (TT 1, pp.
J 88·203).
Huie 613(c) of the Pennsylvania Rules of Evidence provides as follows:
Evidence of a prior consistent statement by a witness is admissible
for r~:lkit;iiitation purposes if ttie opposing party is given an opoortonity to
cross-exarnine the witness about the statement, and the statement is
offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory
and the statement was made before that which has been charged existed
or arose; or
rlO
(2) having made a prior inconsistent statement, which the witness has
denied or explained, and !11e consistent statement supports the witness' denial or
I
=
<
oxplanation. Pa.R.E. 613(c} (bold in original).
The Defendant's cross-examination of Ms. Wrighi directly put her
credibility at issue and highlighted questions regarding faulty memory and/or
bias The Defendant had ample opportunity to cross-examine ~. .fa. Wright as to
the statements she made to Detective Lutton, and he conducted a lengthy and
exhaustive cross-examination of Ms. Wright. Based on these facts and
circumstances, this court did not abuse its discretion in allowing Detective Lutton
to recount what Ms. Wright told him at the hospital. (TT1, pp. 291-295); See
consrstcnt sratcmerus may be proved by the person to whom they were made in
order to support the credibility of Hv?- witness whose testimony has been
attacked).
L.~0-'"{.1\IP(
I, ,., .. J~·,~, j'.>l!f"!'.l
.......... ,.o._. '1ir)(1 Ior the
'.><:;SLJf'1···::,•'- sake of aro:
,.._._i...... -::,......, irnent
·- ~ 1i·,:,1 Ms•..J·V• Vvrioht's
f1,,..... ~-;14..._:i
statement at the hospital should not have been admitted as a prior consistent
.•
~.''
-'·~..
.
statement, the statement was entirely relevant to show Detective Lutton's course
~d
of conduct and to explain the steps that were undertaken in his investigation of
tl,e shootmo. See ~-Q_fI!J.TI_Qfl_,'.{~_?JtO __y_,_~_b_mj_Q.1, 889 A2d 501, 532 (Pa. 2005) ("[ljt
is weli cst<.1blisr1ed that certain out-of-court statements offered to explain the
course of police conduct are admissible because they are offered not for the truth
n
1 .. - ~
t)
i.~,·:
,; !
of the matters asserted but rather to show the information upon which police
Wg acted.").
I
SigniflcanHy, Ms. Wright's statements about there being an argument
earlier that day did not refer to the Defendant or otherwise implicate the
Defendant in any way. The statement also was not "highly incriminating" in
nature since it did not involve "specltic assertions of criminal conduct on the part
of tho accused." Cornpere Commonwealth. v. Palsa, 555 A.2d 808, 811 (Pa.
1989} (statement not admissible under course of conduct exception where it
accused the defendant of being a drug purchaser and defendant was on trial tor
drug ottense). Ms. Wright's statement about the earlier argument "provided only
the information necessary for a reasonable understanding of the po!ice conduct"
and w2.s., therefore, admissible to show the detectives' course of conduct
pcrtaininq to their investigation of the shootinq, and not to ,::.istablish H1e truth of
the matter. Palsa, supra, at 811. To that end, the court specifically instructed the
jury that Ms. 1/vright's prior consistent statement was not to be considered for the
truth of the matter and was only relevant to help them assess her credibility. (TT
3, p. 9i).
Finally, the court notes that, with the exception of Ms, Wright's brief
rEifeii3nce at the hospital to the argument that had occurred earlier that afternoon
outside of her apartment, the statements that Detective Lutton recounted rnainty
concerned Ms. Wright's identification of the Defendant as the shooter.
Statements of identification are not considered to be hearsay. (TT 1, pp. 291 .
305); See ~om_rn()nwealth v..,_Wilson, 861 ,\.2(j 919, 929 (Pa. 2004) ("\.Yhere ..
the prior consistent statement rs one of identification, it is adrntss.ole as an
exception to the hearsay rule .... "). Accordingly, for the aforementioned
reasons, the court did not abuse its discretion in allowing Detective Lutton to
testify as to Ms. Wright's statements.
l I I. CONCLUSiON
tiiu The Defendant's allegations of error are without merit. The Defendant waived his
`` argurnent regarding the absence of testimony presented in support of the motion to
FJ
1-->·)
Le,
a(_irni~:sion cJid nor violate Pa n E: 40:3 The court did not err by d,?nying the motion to
5ur.1press f\/ls \,'\/righfs prctri2t or in-court identiticaucn because tt1e idcntilicat.on
prot:edure was not unduly suggestive, and, even if it was, the identification was rniiab!e.
The court did not err by al!ovving Detective Bolin to imoeach Ms. Lane with her prior
inconsistent statement because the probative value of this impeachment evidence was
not outweighed by any unfair prejudice. The court did not err by denying the
0£:,fenJant's post-sentence motion because the verdict did not shock the conscience.
,,
r -.·.'I The court did not abuse its discretion by aliov1ing Detective Lutton to testify to Ms.
l]
Wright's prior consistent statements because Ms. Wright's credibility was directly
Fl.
Li attacked. and the statements of idf:ntification were not considered hearsay.
p:1
j ·~
Li
f···!
L.,:)
43
For the foregoing reasons, the verdicts and sentences in these cases shou!d bo
upheld.
BY THE COURT: