Com. v. Dupont, A. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANGELA L. DUPONT :
:
Appellant : No. 721 MDA 2019
Appeal from the Judgment of Sentence Entered, April 2, 2019,
in the Court of Common Pleas of Lancaster County,
Criminal Division at No(s): CP-36-CR-0002201-2018.
BEFORE: PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: MAY 11, 2020
Angela L. Dupont appeals from a judgment of sentence of one year of
probation, after a jury convicted her of fleeing the scene of a car accident.1
She claims the trial court erred by not suppressing a witness’s identifications
of her from a photo array, which Dupont believes was so highly suggestive
that it violated her due process rights. We affirm.
Dupont filed a pretrial motion to prohibit Beauabe Kibret from testifying
that she was the person who ran a red light, crashed her car into his, and fled
the scene. The court of common pleas conducted a hearing on that motion
and related its findings of facts as follows:
On November 8, 2017, at approximately 4:30 p.m.,
Beauabe Kibret was driving home from work when the front
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* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. § 3743(a). The Commonwealth also charged Dupont with two
summary offenses.
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driver’s side of his vehicle was struck by the front passenger
side of another vehicle, a blue Saturn Vue. Mr. Kibret exited
his vehicle and walked towards the vehicle that struck him.
Mr. Kibret . . . observed the other driver, including
both the profile and the front of their face, from a distance
of between two to three feet for 15 to 30 seconds. . . . [T]he
driver of the other vehicle made direct eye contact with him.
Before Mr. Kibret could make verbal contact with the driver
of the other vehicle, she backed the vehicle up and drove
away. Mr. Kibret testified the driver of the other vehicle was
a Caucasian, thin female in her late twenties or mid-thirties
who, at the time of the accident, had straight, “blondish” or
blonde hair and was wearing a black shirt. [He] gave that
description to Officer Brennan Stamm when [the police]
arrived at the scene of the accident.
Approximately two months [later], Officer Stamm
arrived at the scene of a traffic stop involving a blue Saturn
Vue with frontend damage consistent with the November 8,
2017 accident. Officer Stamm testified that the driver and
registered owner of the vehicle, [i.e., Dupont], was similar
to the description provided by Mr. Kibret.
Using a program called C-Penn on J-NET, Officer
Stamm created a black-and-white-photo lineup that
included a photograph of [Dupont], as well as the
photographs of seven other Caucasian females between the
age of 20 and 30, similar in appearance to [Dupont’s]
photograph. Officer Stamm . . . print[ed] the selected
photographs as a group on a single sheet of paper [and] as
individual eight by ten photographs. The women in the
selected photographs all appear to have darker hair similar
to [Dupont’s] photograph, and . . . none of the women in
the photo lineup appear to have blonde hair. Six of the eight
photographs in the lineup, including the photograph of
[Dupont], depict women with curly hair.
Officer Stamm contacted Mr. Kibret by telephone on
January 19, 2018 and asked him if he would look at some
photographs and attempt to identify the driver who hit him.
[The officer] went to Mr. Kibret’s place of employment and
met with him in an office. Mr. Kibret first looked through
the individual photos and testified that he was able to
narrow it down to three of those photographs. [He flipped]
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through the individual photos for a couple seconds and
appeared to be having difficulty with not having the photos
lined up side-by-side. [So] Officer Stamm then placed the
group of photographs on the single sheet in front of Mr.
Kibret and told him to take his time. . . . after looking at the
group of photographs on the single sheet for second or so,
[Mr. Kibret] was able to identify [Dupont’s] photograph as
the driver of the vehicle that hit him and subsequently
signed and dated near her photograph.
Mr. Kibret appeared to have some difficulty either
recalling or relaying the details of the January 19, 2018
lineup. He testified that two of the three photographs he
initially selected from the individual photographs depicted
women with blonde hair. However, Officer Stamm testified
credibly that the individual photographs matched the
photographs on the single sheet and that there were only
eight. None of the women in those photographs appeared
to have blonde hair. Mr. Kibret also testified inconsistently
about whether he could recall [Dupont’s] photograph being
one of the original three he selected. . . . [H]e stated clearly
that [Dupont’s] photograph was one of the three he initially
picked. But when questioned about whether those three
initial photographs were also on the single sheet of
photographs and whether the photograph he ultimately
selected was among the initial three, Mr. Kibret stated that
he could not recall.
Mr. Kibret . . . was confident in his identification
despite [Dupont’s] dark, curly hair in the photograph,
because it was her facial features that he recognized. After
Mr. Kibret selected [Dupont’s] photograph, he noted to
Officer Stamm that her hair was a different color, and Officer
Stamm stated in reply that women often change their hair
color. . . . The background of [Dupont’s] photograph is
slightly lighter than the other photographs, the width of
[her] photograph is slightly narrower than the other
photographs, and [she] appears to be the only person
photographed with an eyebrow piercing, although one of the
other photographs depicts a woman with noticeable ear
piercings.
Trial Court Opinion, 2/1/19, at 1-5 (footnotes omitted).
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Based upon those facts, the suppression court concluded that the photo
array was not unduly suggestive. Furthermore, even if the array was unduly
suggestive, the court determined that other indicia of reliability in Mr. Kibret’s
identification outweighed any suggestiveness from the photo array. Thus, the
suppression court denied Dupont’s motion to prevent Mr. Kibret from testifying
that Dupont had hit him.
As mentioned, a jury convicted Dupont of fleeing the scene of a vehicle
accident, because it credited Mr. Kibret’s recollection of the incident and
rejected Dupont’s alibi. Next, the trial court convicted her of related summary
offenses and sentenced her to one year of probation and to pay Mr. Kibret
$2,232.60 in restitution damages, a $200 fine, and other court fees and costs.
This timely appeal followed.
Dupont raises one issue. “Did the trial court err [by refusing] to
suppress Mr. Kibret’s identification of her from a suggestive, photographic
lineup, where said identification was unreliable and tainted by the officer’s
interference in the identification . . . ?” Dupont’s Brief at 4.
Under Dupont’s theory, the photo array was unduly suggestive, and, as
a result, the trial court violated her state and federal, procedural due process
rights by allowing Mr. Kibret to testify against her at trial. However, she does
not claim that the Constitution of the Commonwealth of Pennsylvania affords
any greater protection in this regard than the federal charter. Thus, we review
her state and federal claims together and analyze the respective safeguards
of the two constitutions as coextensive.
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Our standard of review on whether a police officer conducted an unduly
suggestive photo array is de novo. See, e.g., Commonwealth v. Kearney,
92 A.3d 51, 65 (Pa. Super. 2014); United States v. Burnett, 773 F.3d 122,
130 (3rd Cir. 2014). Here, because the Commonwealth prevailed below, our
scope of review includes “only the evidence of the prosecution and whatever
evidence for the defense . . . remains contradicted on the context of the whole
record.” Commonwealth v. Williams, 756 A.2d 957, 959-60 (Pa. Super.
2000).
Under the federal Due Process Clause, defendants seeking to exclude
eyewitness-identification testimony must satisfy a two-step test. “The
defendant has the initial burden of demonstrating the [photo array] procedure
was impermissibly suggestive.” Reese v. Fulcomer, 946 F.2d 247, 259 (3rd
Cir. 1991). “Only if the defendant meets this initial step will the court consider
the admissibility of the identification under the totality of the circumstances.”
Id. (quoting United States v. L’Allier, 838 F.2d 234, 239 (7th Cir. 1988))
(some punctuation omitted). Because Dupont’s claim fails the first test, we
need not consider the second.
Dupont contends that Officer Stamm created and showed a photo array
that violated the pronouncements of the Supreme Court of New Jersey in
State v. Henderson, 27 A.3d 872 (N.J. 2011). Thus, although she does not
directly say so, Dupont would have us apply New Jersey constitutional law to
overturn the legal conclusions of a Pennsylvania suppression court. She even
acknowledges that Henderson conflicts with the precedents of this Court,
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expressly condoning the procedure Officer Stamm followed in compiling and
displaying the photo array.
For example, she states, “Commonwealth v. Fulmore, [25 A.3d 340,
346-347 (Pa. Super. 2011),] held that a photographic lineup that does not
match the description provided by the eyewitness is a matter of credibility,
not undue suggestiveness.” Dupont’s Brief at 24. “The Fulmore Court also
held that it was not unduly suggestive to inform the witness that a photo array
contains a picture of someone [the investigator] believed to have committed
the offense. Fulmore at 347-348; see also Commonwealth v. Kubis, 978
A.2d 391 (Pa. Super. 2009) (same).” Id.
In Fulmore, this Court reasoned that an officer stating to a witness that
he believes that the image of the suspect is in a photo array does not render
the photo array unduly suggestive, because that belief is inferentially implied
anytime an officer assembles and displays a photo array. “[W]hy else would
a victim be shown a photo array unless the police believed the suspect’s photo
was included?” Fulmore, 25 A.3d at 348. Hence, an officer saying that the
suspect’s photo is, in his opinion, included in the array simply gives voice to
the obvious. If that obvious statement is unduly suggestive, then any photo
or in-person lineup is, per se, unduly suggestive, because an officer’s use of
a photo or in-person lineup implies that he thinks the suspect is included.
Dupont’s view of what constitutes an unduly suggestive photo array
therefore directly conflicts with the precedent of this Court. Indeed, she
challenges our case law as being “at odds with what we now know about the
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science of eyewitness identification, and with appropriate eyewitness
identification protocol.” Dupont’s Brief at 25 (citing Henderson, supra.)
While it is unclear who she means by “we” or to what “science” Dupont refers,
her reliance upon Henderson fails before this panel.
“It is beyond the power of a Superior Court panel to overrule a prior
decision of the Superior Court, except in circumstances where intervening
authority by our Supreme Court calls into question a previous decision of this
Court.” Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006)
(emphasis added). The Henderson Court is not “our” Supreme Court, and
we therefore may not follow its precedent in violation of our own. Accordingly,
the New Jersey court has no power to displace the settled jurisprudence of
this Commonwealth. While Dupont’s claim that Officer Stamm’s photo array
was unduly suggestive under Henderson might persuade this Court to
reconsider its precedents en banc, three judges may not apply Henderson in
the face of contrary, binding precedent.
Additionally, in Henderson, the Supreme Court of New Jersey used its
supervisor power over that state’s court system to appoint a special master
who conducted an extensive Frye hearing.2 The master heard the testimony
of various experts from across the nation to determine whether those courts’
acceptance of eyewitness identifications rested upon junk science. After
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2 See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (holding
that, to be admissible in a court, scientific, expert evidence requires “general
acceptance in the particular field in which it belongs.”), abrogated federally,
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
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reviewing the master’s prolific record, the Henderson Court concluded that
“[s]tudy after study revealed a troubling lack of reliability in eyewitness
identification . . . the record proves that the possibility of mistaken
identification is real.” Henderson, 27 A.3d at 877-78.
Unlike in Henderson, no Frye hearing took place in this case; thus, no
comparable record of studies and experts is before us for appellate review.
Nor did Dupont ask the suppression court to hold a Frye hearing on the
science, so she could create an evidentiary record for our review. Any “claims
not raised in the trial court may not be raised for the first time on appeal.”
Commonwealth v. Johnson, 33 A.3d 122, 126 (Pa. Super. 2011); see also
Pa.R.A.P. 302(a) (accord). To the extent Dupont attacks our acceptance of
eyewitness identification as being scientifically unsustainable, she has waived
that argument by failing to create a factual record to prove her premise and
by failing to request a Frye hearing on the question.
Lacking the insights and data that a Frye hearing could have provided,
the suppression court concluded the photo array at bar was not unduly
suggestive under existent, Pennsylvania law. That court opined as follows:
Suppression is only warranted . . . where the identification
procedure was so impermissibly suggestive as to give rise
to a very substantial likelihood of irreparable
misidentification. Commonwealth v. Kendricks, 30 A.3d
499, 504 (Pa. Super. 2011). Allegations of incidental
variations in appearance do not prove undue
suggestiveness. Kearney, 92 A.3d at 66. Photographs in
a lineup are not unduly suggestive if the suspect’s picture
does not stand out more than the others and the people
depicted all exhibit similar facial characteristics.
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Commonwealth v. Fisher, 769 A.2d 1116, 1126-1127
(Pa. 2001).
In the instant case . . . the photographic lineup was
not unduly suggestive. . . . The women depicted in the
photographs all exhibit very similar facial features and hair
styles and [Dupont’s] photograph does not stand out among
the others, despite her being the only one pictured with an
eyebrow piercing. In fact . . . the large, dark ear piercings
of a different women stand out more than the barely visible
piercing on [Dupont’s] eyebrow. Furthermore, although it
does appear as though the background of [Dupont’s]
photograph is slightly lighter than the other photographs,
the backgrounds remain similar, and the [suppression
court] does not find that the slight variation causes it to
stand out to a substantial degree. The most significant
difference in the photographs is the slightly narrower width
of [Dupont’s] photograph, which causes a slightly wider gap
between [Dupont’s] photograph and the next photograph.
While the gap is noticeable . . . it [is not] significant or
unduly suggestive. Most importantly . . . there is no
indication that the identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification.
Trial Court Opinion, 2/1/19, at 6-8.
Our review of the photo array confirms these findings. The thorough,
well-reasoned analysis by the learned Judge Howard F. Knisely dispenses with
any claim that the photo array was unduly suggestive. We therefore adopt
his analysis as our own and conclude that the suppression court’s decision to
deny Dupont’s pretrial motion was constitutionally sound.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/11/2020
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