Com. v. Hamilton, D.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DAQUAN HAMILTON
Appellant No. 1477 EDA 2016
Appeal from the Judgment of Sentence February 9, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No: CP-46-CR-0001391-2014
BEFORE: PANELLA, STABILE, and PLATT,* JJ.
MEMORANDUM BY STABILE, J.: FILED SEPTEMBER 18, 2018
Appellant, Daquan Hamilton, appeals from his judgment of sentence of
life imprisonment for second-degree murder1 and related offenses. We affirm.
On the evening of December 26, 2013, Appellant and Khaleef Jones
visited an apartment complex in Pottstown. Appellant told Jones that he
wanted to get his stuff out of one of the apartments. Steven Burns was inside
the apartment with George Hashimbey and Angel Luna. When Appellant
knocked on the door, Burns opened the door but would not let Appellant
inside. N.T., 6/17/15, at 8-10, 90-96.
Appellant and Jones left the apartment building, but they returned
shortly after midnight on the morning of December 27, 2015. Before entering
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. § 2502(b).
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the building, Appellant handed Jones a .380 caliber gun and armed himself
with a silver revolver. Id. at 93-94. Appellant and Jones returned to Burns’
apartment, and Appellant told Jones to cover his face as they entered the
elevator. They knocked on the apartment door, and Burns partially opened
it. Appellant shoved his pistol into Burns’ abdomen and forced his way inside.
Id. at 10-11, 90-96. Burns and Appellant fought on the floor inside the door.
Appellant yelled, “Shoot the nigger.” As they struggled, Appellant fired his
silver pistol, killing Hashimbey. Id. at 12-14, 98-99. Burns testified that he
saw Appellant shoot Hashimbey. Id. at 14-15. Jones fired one shot into
Burns’ hip and ran down the stairs. Jones testified that he heard two shots
after exiting the apartment. Id. at 99. Burns went into the hallway to ask a
neighbor for help, and he remained there until police and paramedics arrived.
Id. at 12-17, 98-99. The Commonwealth’s ballistics expert testified that the
bullet recovered from Hashimbey’s body came from a .357 caliber gun, a
different caliber from the gun Jones was carrying. N.T., 6/16/15, at 50.
Approximately ninety minutes after the shooting, Philadelphia Police
Officer William Lynch stopped Appellant’s car in a high crime neighborhood in
North Philadelphia. When Officer Lynch ran the tags, he discovered a “try-
and-locate” alert. Appellant, who was a passenger in the car, ran when he
saw the police lights, but Jones stayed inside. Police arrested both men and
recovered a .380 caliber gun from Jones’ person during the arrest. N.T.,
6/16/15, at 122-23. The police impounded the car and obtained a search
warrant to search its passenger compartment. During the search, they
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recovered two cell phones and a fired .357 cartridge casing. N.T., 6/16/15,
at 130-39. Subsequently, a Montgomery County detective obtained another
search warrant to examine the contents of the cell phones.2
At the conclusion of trial, the Commonwealth introduced letters that
Appellant sent Jones while both men were incarcerated following their arrest.
The first letter suggested that both men claim that Burns let them enter the
apartment immediately before the shooting, and that Appellant “just came to
get my clothes and see my cousin.” N.T., 6/18/15, at 21. “Nobody was
[supposed] to get hurt,” Appellant continued, but Burns caused the shootings
by starting a fight with Appellant. Id. In a second letter, Appellant stated
that the Commonwealth was not offering him a plea bargain and was
threatening to charge him with second-degree murder. Id. at 22-23.
Appellant continued:
I’m sorry for getting you in this shit. My lawyer said if I get on
the stand, it would do more harm than good. Dam bro, I fucked
up, but we can’t cry over spilled milk . . . I need you to get on the
stand and blame everything on [Burns]. Keep your head up. Fuck
these crackers.
Id. at 23.
During closing argument, defense counsel did not deny that Appellant
was present in the apartment during the shootings. Instead, counsel
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2 Appellant sought to suppress the contents of his cell phone in pre-trial
motions, which the trial court denied. The contents recovered from the cell
phones are described in our discussion of the suppression issue on pages 10-
11 below.
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contended that any actions that Appellant took were in self-defense. N.T.,
6/18/15 at 74-93. The jury found Appellant guilty of second-degree murder,
burglary and other offenses. On February 9, 2016, the trial court imposed
sentence. Appellant filed timely post-sentence motions, which the trial court
denied, and a timely notice of appeal. Both Appellant and the trial court
complied with Pa.R.A.P. 1925.
Appellant raises six arguments in this appeal, which we reorganize for
the sake of convenience:
I. Whether [Appellant]’s conviction for burglary was supported by
sufficient evidence where: (1) the Commonwealth failed to prove
beyond a reasonable doubt that at the time they entered the
apartment, [Appellant] and/or his codefendant intended to
commit any crime inside of the residence; and (2) the
Commonwealth failed to prove that either [Appellant] or his
codefendant was [not] licensed or privileged to enter the
apartment by the actual resident[?]
II. Whether [Appellant]’s conviction for second-degree murder is
supported by sufficient evidence where the Commonwealth failed
to prove that the decedent was killed during [Appellant]’s
commission of an enumerated felony or during the commission of
an enumerated felony by his co-defendant[?]
III. Whether the trial court committed an error of law and/or
abused its discretion in denying [Appellant’s] motion to suppress
the contents of his cell phone where the affidavit in support of the
search warrant failed to establish probable cause to believe that
evidence of that crime would be found in the phone’s contents at
the time that the warrant was issued[?]
IV. Whether the trial court committed an error of law and/or
abused its discretion in denying [Appellant’s] motion to suppress
the identification made by David Anderson where the identification
was tainted by his being shown a still surveillance video of the
suspects prior to being shown the photographic array for
identification purposes[?]
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V. Whether the trial court committed an error of law and/or an
abuse of discretion in denying [Appellant’s] Batson challenge
where: the prosecuting attorney failed to state a valid race-neutral
reason for striking juror 11; and the learned court ruled in error
that [Appellant] was required to establish a pattern of
discrimination by the prosecution before he could present a
Batson challenge?
VI. Whether the trial court committed an error of law and/or
abused its discretion in failing to rule on defense counsel’s
objection to the prosecutor’s act of improperly vouching for the
testimony of the Commonwealth’s witnesses during the
Commonwealth’s closing argument[?]
Appellant’s Brief at 13-14.
We first examine whether the evidence is sufficient to sustain
Appellant’s convictions for burglary. When evaluating a sufficiency claim,
our standard is whether, viewing all the evidence and reasonable
inferences in the light most favorable to the Commonwealth, the
factfinder reasonably could have determined that each element of
the crime was established beyond a reasonable doubt. This Court
considers all the evidence admitted, without regard to any claim
that some of the evidence was wrongly allowed. We do not weigh
the evidence or make credibility determinations. Moreover, any
doubts concerning a defendant’s guilt were to be resolved by the
factfinder unless the evidence was so weak and inconclusive that
no probability of fact could be drawn from that evidence.
Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010).
A person commits burglary when, “with the intent to commit a crime
therein, the person: . . . enters a building or occupied structure . . . in which
at the time of the offense any person is present and the person commits,
attempts or threatens to commit a bodily injury crime therein.” 18 Pa.C.S.A.
§ 3502(a)(1). “It is a defense to prosecution for burglary if . . . at the time
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of the commission of the offense . . . the actor is licensed or privileged to
enter.” 18 Pa.C.S.A. § 3502(b)(3).
Appellant contends that the Commonwealth failed to prove that he
intended to commit a crime when entering the apartment. We disagree.
Appellant and Jones brought guns with them when they returned to the
apartment, and Appellant told Jones to hide his face from the camera in the
elevator. When the apartment door opened, he shoved the muzzle of a gun
into Burns’ stomach. This evidence demonstrates Appellant’s intent to commit
a crime inside the apartment.
Appellant also argues that the Commonwealth failed to prove that he
was not licensed or privileged to enter the apartment. This argument suggests
erroneously that the Commonwealth had the burden of proof on this issue.
Section 3502 plainly states that license and privilege are affirmative defenses
for which the defendant shoulders the burden of proof. It is permissible to
require the defendant to prove these elements, because “the burden of
proving an affirmative defense that relieves the accused of criminal
responsibility, but does not negate an element of the offense charged[,] may
be placed on the defendant.” Commonwealth v. Collins, 810 A.2d 698, 701
(Pa. Super. 2002).
Construed in the light most favorable to the Commonwealth, the
evidence demonstrates that Appellant failed to satisfy his burden of proof.
Appellant did not present any evidence that he had any residential interest in
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the apartment or some other right that entitled him to enter. The occupants
inside the apartment refused to let Appellant in the first time he knocked on
the door, and several hours later, he forced his way in with a gun. From these
facts, the jury had the right to infer that Appellant had no license or privilege
to enter.
Next, Appellant contends that the evidence was insufficient to support
his conviction for second-degree murder, because the victim did not die during
the perpetration of a felony. We disagree. “A criminal homicide constitutes
murder of the second degree when it is committed while the defendant was
engaged as a principal or an accomplice in the perpetration of a felony.”
18 Pa.C.S.A. § 2502(b). Burglary is a felony, 18 Pa.C.S.A. § 3502(c), and we
have held above that the evidence is sufficient to sustain Appellant’s
conviction for burglary. Thus, the evidence establishes that the victim died
during the perpetration of a felony.
In his third argument, Appellant claims that the trial court erred in
denying his motion to suppress by (1) ruling that police officers had
reasonable suspicion on December 27, 2013 to stop the car in which Appellant
was a passenger, and (2) probable cause existed to issue the search warrant
for one of the cell phones seized from the car.
Appellant waived his objection to the ruling that police officers had
reasonable suspicion to stop the vehicle in which he was a passenger by failing
to raise this issue in his Pa.R.A.P. 1925 statement. The lone suppression issue
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in Appellant’s Rule 1925 statement pertained to the search warrant for his cell
phone. As a result, the trial court did not address this issue in its opinion,
thus impeding effective appellate review. Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues
not included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived”); Commonwealth v. Lemon,
804 A.2d 34, 36-37 (Pa. Super. 2002) (issues not included in Rule 1925
statement are waived because omission impedes preparation of trial court’s
legal analysis).
Even if Appellant had preserved this issue for appeal, it is devoid of
merit. When reviewing a trial court’s denial of a motion to suppress evidence,
[we are] limited to determining whether the suppression court’s
factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because the
Commonwealth prevailed before the suppression court, we may
consider only the evidence of the Commonwealth and so much of
the evidence for the defense as remains uncontradicted when read
in the context of the record as a whole. Where the suppression
court’s factual findings are supported by the record, [the appellate
court is] bound by [those] findings and may reverse only if the
court’s legal conclusions are erroneous. Where . . . the appeal of
the determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts. Thus, the
conclusions of the courts below are subject to [ ] plenary review.
Commonwealth v. Parker, 161 A.3d 357, 361–62 (Pa. Super. 2015).
“The Fourth Amendment to the [United States] Constitution and Article
I, Section 8 of [the Pennsylvania] Constitution protect citizens from
unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 A.3d
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781, 784 (Pa. Super. 2012). “To secure the right of citizens to be free from
such intrusions, courts in Pennsylvania require law enforcement officers to
demonstrate ascending levels of suspicion to justify their interactions with
citizens to the extent those interactions compromise individual liberty.”
Commonwealth v. Reppert, 814 A.2d 1196, 1201 (Pa. Super. 2002).
Courts recognize three types of interactions between members of the public
and the police: a mere encounter, an investigative detention, and a custodial
detention.
A mere encounter between police and a citizen need not be
supported by any level of suspicion, and carr[ies] no official
compulsion on the part of the citizen to stop or to respond. An
investigatory stop, which subjects a suspect to a stop and a period
of detention, but does not involve such coercive conditions as to
constitute an arrest, requires a reasonable suspicion that criminal
activity is afoot. A custodial search is an arrest and must be
supported by probable cause.
Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa. Super. 2007). In
evaluating whether an interaction rises to the level of an investigative
detention, “the court must examine all the circumstances and determine
whether police action would have made a reasonable person believe he was
not free to go and was subject to the officer’s orders.” Commonwealth v.
Stevenson, 832 A.2d 1123, 1127 (Pa. Super. 2003). Prior to an investigatory
detention, the officer “must harbor at least a reasonable suspicion that the
person seized is then engaged in unlawful activity.” Commonwealth v.
Barber, 889 A.2d 587, 593 (Pa. Super. 2005). “Reasonable suspicion is a
less stringent standard than probable cause necessary to effectuate a
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warrantless arrest, and depends on the information possessed by police and
its degree of reliability in the totality of the circumstances.” Commonwealth
v. Brown, 996 A.2d 473, 477 (Pa. 2010). “[I]nnocent facts, when considered
collectively, may permit the investigative detention.” Id. Police officers,
however, “need not personally observe the illegal or suspicious conduct, but
may rely upon the information of third parties, including tips from citizens.”
Commonwealth v. Smith, 904 A.2d 30, 36 (Pa. Super. 2006).
Here, Detective Lynch, the Philadelphia detective who stopped the
vehicle in which Appellant was a passenger, reasonably suspected that the
driver was operating the car without authorization. The detective ran the tags
because the car was in a known high-crime area in North Philadelphia, and he
learned that a “try-and-locate” notice was on the registration, which meant
that the car might have been a rental that was not returned on time. N.T.,
6/15/15, at 9, 11-12. These factors gave the detective reasonable suspicion
to stop the car for further investigation.
Next, Appellant contends that the search warrant for his cell phones
failed to establish probable cause for the search. The contents of the cell
phones introduced during trial were text messages from Appellant to
Appellant’s brother between 10:29 p.m. and 11:43 p.m. on December 26,
2013 (between Appellant’s first and second visit to Burns’ apartment).
Appellant’s brother texted, “You got to grab da 380,” and Appellant responded,
“I know.” Appellant asked, “Where it’s at?” and his brother replied, “Da hotel.”
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N.T., 6/18/15, at 18. The gist of these messages was Appellant’s agreement
with his brother that Appellant needed the .380 caliber pistol and information
from his brother that the pistol was at the “hotel.”
A reviewing magistrate must review the totality of the circumstances
presented in the affidavit to determine whether there is a fair probability that
evidence of the alleged crime will be reaped through execution of the warrant.
Commonwealth v. Sharp, 683 A.2d 1219, 1223 (Pa. Super. 1996).
Appellant argued that there was no evidence of any cell phone use at the time
of the murder, so there was not a fair probability that the police would recover
any evidence of the crime from his phone. We agree that the search warrant
failed to establish probable cause, but we also conclude that the introduction
of the contents of the cell phones during trial was harmless error.
We summarize the averments in the affidavit of probable cause
underlying the warrant as follows:
 Shortly after midnight on December 27, 2013, Officer Fritz, one of
the first officers at the murder scene, Apartment 524, spoke with
Steven Burns, who was suffering from multiple gunshot wounds.
Burns stated that two armed gunmen had shot him inside the
apartment.
 Officer Fritz recovered a cell phone from Burns.
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 Corporal Hatfield entered the apartment and saw Hashimbey, who
was pronounced dead at the scene. There was a cell phone near his
body.
 Detectives discovered one fired .380 shell casing and one unfired
.380 caliber bullet on the apartment floor.
 Detectives interviewed Burns at the hospital after Burns underwent
surgery for his bullet wounds. Burns told them that he had seen two
men on the evening of December 26, 2013 in the apartment elevator.
Burns and the men exited the elevator on the fifth floor and went in
opposite directions. Shortly after Burns entered Apartment 524,
Burns answered a knock at the door and observed the two men he
had seen on the elevator. One man asked whether “Miguel” was
inside. Burns answered “no,” and the man asked to come inside to
pick up his “stuff.” Burns replied that they could not come in because
Miguel was not home. The two men left. Burns commented to
Hashimbey that the men had been on the elevator with him but went
in a different direction after exiting. Hashimbey replied that the men
probably went to Apartment 507. Later that evening, around
midnight, Burns answered another knock at the door. The two men
forced their way into the apartment. One man said, “yo, I gotta get
my stuff,” and Burns saw that both men were holding revolvers. One
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man said “shoot that nigga,” and the other man shot Burns in the
hip.
 Angel Luna was in the apartment with Burns and Hashimbey at the
time the two men forced their way inside. Luna’s account of the
events was consistent with Burns’ account.
 Police recovered surveillance video of the encounter on the elevator
between Burns and the two men at 9:15 p.m. and the two men
returning to the fifth floor on the elevator at midnight. One of the
men was wearing a blue Penn State jacket, a gray hoodie underneath
and camouflage pants.
 On December 28, 2013, detectives interviewed David Anderson, a
resident in Apartment 507. Anderson stated that on the evening of
December 26, 2013, a man named Curtis Harrell had visited his
apartment. After Harrell left, two men visited Anderson’s apartment
looking for Harrell. Anderson knew one of the men as “Dre” but did
not know the other man. The detectives showed Anderson a still
photograph from the surveillance video, and Anderson identified the
men in the photograph as the men who came to his apartment
looking for Harrell.
 A detective checked Harrell’s criminal history and learned that
Philadelphia police had arrested Harrell on November 8, 2008 along
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with Daquan Hamilton, Appellant herein, and charged them with
drug-related offenses.
 A detective then learned that Appellant had been arrested in
Philadelphia at 1:41 a.m. on December 27, 2013 following a traffic
stop of a Toyota with a registration number of EJE-3813. Appellant
had run away from the vehicle following the traffic stop but was
apprehended. Another male in the vehicle, Khaleef Jones, was also
arrested. Jones was wearing the same clothes that one of the men
in the surveillance video had been wearing: a blue jacket, gray
hoodie and camouflage pants. Jones also was in possession of a
.380 caliber pistol, the same caliber as the ammunition found at the
crime scene inside Apartment 524.
 On December 28, 2013, a detective showed Burns separate
sequential photo arrays containing Appellant’s and Jones’
photographs. Burns identified both men as the males who forced
their way into Apartment 524 and committed the shootings.
 On December 29, 2013, Jones gave a statement to police in which
he admitted entering Apartment 524 with Appellant and shooting his
gun, but he claimed that the shot only struck a wall. Jones’ account
of the events indicated that Appellant fired the shots that injured
Burns and killed Hashimbey. Jones and Appellant exited the
apartment, and another man, “Tone,” drove them to Philadelphia
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 On January 2, 2014, a detective and police officer executed a search
warrant on the Toyota that Jones and Appellant were driving at the
time of the traffic stop. The detective recovered two cell phones and
a camera/music device.
Exhibit C-1 (search warrant for cell phones).
The allegations in the affidavit of probable cause do not furnish probable
cause to believe that the police would find evidence of crime on the cell phones
recovered in the Toyota. The affidavit does not allege that Appellant or Jones
talked on their cell phones to plan the break-in or to discuss shooting the
victims in advance of the break-in. Neither does the affidavit state that
Appellant or Jones talked on their cell phones after shooting the victims and
leaving the apartment. Nor does the affidavit allude to any other fact that
would indicate a nexus between the cell phones and the charges against
Appellant. Standing alone, the fact that the police discovered two cell phones
in the vehicle driven by Jones and Appellant after the shooting does not
provide reason to believe that the cell phones contained evidence of the crimes
in question. Therefore, the trial court erred by denying Appellant’s
suppression motion.
Nevertheless, this error was harmless. Harmless error exists
if the state proves either: (1) the error did not prejudice the
defendant or the prejudice was de minimis; or (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
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prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.
Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017). The text
messages seized from the cell phones were cumulative of other untainted
evidence. The text messages indicated Appellant’s intent to (1) obtain a .380
caliber pistol and (2) return to Burns’ apartment and attack Burns. The
Commonwealth submitted other untainted evidence that proved the same
facts. With regard to (1), Jones testified that before the second, fateful entry
into Burns’ apartment, Appellant handed him a .380 caliber pistol. Jones
entered the apartment, shot the .380 caliber pistol once and ran out into the
hallway. Jones continued carrying the .380 caliber pistol until his arrest ninety
minutes after the shooting. With regard to (2), Jones testified that he and
Appellant drove back to the apartment complex, where Appellant handed
Jones the .380 caliber pistol and told Jones to cover his face before they
entered the elevator. Burns testified that Appellant forced his way into the
apartment, shouted “shoot the nigger,” and shot Hashimbey. Jones testified
that he entered the apartment, fired his gun once, and ran out into the hall.
He heard two more gunshots as he exited. In addition to this eyewitness
testimony, Appellant wrote Jones letters following their arrest in which
Appellant admitted responsibility for the murder—“I’m sorry for getting you in
this shit . . . Dam bro, I fucked up, but we can’t cry over spilled milk”—but
implored Jones to blame the incident on Burns. Finally, ballistics evidence
establishes that the bullet that killed Hashimbey came from a .357 caliber
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pistol. Since Jones was carrying a .380 caliber pistol, Appellant was carrying
the .357 caliber pistol that fired the fatal shot. For these reasons, the
erroneous admission of the cell phone evidence does not entitle Appellant to
relief.
We note that our decision today is distinguishable from
Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018), in which our Supreme
Court criticized this Court’s harmless error analysis. In Fulton, this Court held
that the search of the defendant’s cell phone was illegal, but that any error
was harmless in light of other properly admitted evidence of the defendant’s
guilt. Our Supreme Court observed that this Court applied the third harmless
error test—i.e., “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 493-94. The Supreme Court continued, however, that
the Superior Court failed entirely to discuss whether the evidence
that it relied on to find harmless error was contradicted by other
evidence of record. This omission from its determination of
harmlessness is fatal to its conclusion . . . [O]verwhelming
evidence of a defendant’s guilt is never harmless unless that
evidence is uncontradicted.
Id. at 494. In the present case, we apply a harmless error test different from
the test this Court applied in Fulton, namely “whether the erroneously
admitted evidence was merely cumulative of other untainted evidence which
was substantially similar to the erroneously admitted evidence.” Burno, 154
A.3d at 787. Moreover, as established above, the evidence seized from the
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cell phones in the present case is cumulative of other untainted and properly
admitted evidence that proves the same facts.
In his next argument, Appellant contends that the trial court erred in
denying his motion to suppress Anderson’s out-of-court identification of
Appellant from a photo array. Appellant argues that the police made the
identification procedure unduly suggestive by showing Anderson a still
surveillance video of the suspects six hours before showing him the photo
array.3
We disagree with Appellant. The trial court opinion explained its reasons
for denying Appellant’s motion in its opinion as follows:
[W]hether an out of court identification is to be suppressed as
unreliable, and therefore violative of due process, is determined
from the totality of the circumstances. Commonwealth v.
Carson, 741 A.2d 686, 697 (1999), abrogated on other grounds,
by Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003).
Suggestiveness in the identification process is a factor to be
considered in determining the admissibility of such evidence, but
suggestiveness alone does not warrant exclusion.
Commonwealth v. Kubis, 978 A.2d 391, 396 (Pa. Super. 2009).
Identification evidence will not be suppressed unless the facts
demonstrate that the identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification. Commonwealth v.
Burton, 770 A.2d 771, 782 (Pa. Super. 2001), appeal denied, 868
A.2d 1197 (Pa. 2005), overruled on other grounds by
Commonwealth v. Mouzon, 812 A.2d 617, 623 (Pa. 2002).
Photographs in lineups are not unduly suggestive if the suspect’s
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3 As noted above, Burns identified Appellant and Jones from photo arrays
prepared by the police. In the present argument, Appellant objects to
Anderson’s out-of-court identification of Appellant but not to Burns’ out-of-
court identification.
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picture does not stand out more than the others, and the people
depicted all exhibit similar facial characteristics. Commonwealth
v. Fisher, 769 A.2d 1116, 1126-27 (Pa. 2001).
During suppression, [Appellant] argued that Mr. Anderson was
shown a still shot of a surveillance video depicting [Appellant] and
Khaleef Jones outside of the apartment in question at the time of
the incident. A few hours later, Mr. Anderson was shown a photo
array and asked if he recognized anyone, whereby Mr. Anderson
identified [Appellant]. Thus, the defense contended that the
identification should be suppressed as impermissibly suggestive.
The trial court disagreed. Indeed as demonstrated by the record,
the trial court went to great lengths to determine whether the
identification process was suggestive, requesting to see the
surveillance still which had not been introduced into evidence, and
also requesting that the [d]etective involved in the photo
identification process [be] further questioned. (Please see Notes
of Testimony from 2/6/15, pgs. 52-61). Indeed, the court stated,
THE COURT: I want to make sure we target this. Your argument
isn’t as much the array itself was prejudicial, the argument that
I’m hearing is that by virtue of showing a picture of [Appellant]
earlier in the day, you’ve not tainted the witness and that’s what
I want to hear argument about. [ . . . ]
THE COURT: What was he told when he was shown the earlier
photo? I mean, I think there’s things here that we’re not bringing
that out that might be helpful to resolving this. I want to know
what he was told when he was shown the earlier photo—what
discussion was had there—and I’d like to see the photo.
[The Commonwealth]: Sure. We can get the photo for you, Your
Honor.
THE COURT: Okay. Could you do that? That would be very
helpful.
MR. WHALLEY: Detective Richard can testify again if he needs to.
THE COURT: I would like to know that. I’m going to ask him to
come back up on the stand.
(Please see Notes of Testimony from 2/6/15, pgs. 52-61)
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Upon further inquiry, Detective Richard indicated that they were
canvassing the apartment building to learn if anyone had
information on the homicide that occurred in the building the day
prior. He spoke to Mr. Anderson at the apartment building, and
then Mr. Anderson later went to the police station to provide
further information. Mr. Anderson indicated that a man named
Dre had visited his apartment on the night in question. The
[d]etective then showed Anderson some individual photographs
followed by some surveillance still shots, including the photograph
with [Appellant] and Khaleef Jones in it. Detective Richard further
explained,
[Detective Richard]: Then I said I would like to show you some
surveillance photos to see if you know the people in the
surveillance photos. That was the extent of the conversation. As
far as I knew at that point, the two people in the surveillance
photos, they could have lived there. I had no idea what their
involvement was, but I know they were there about the time I
needed to talk to them so I wanted to find out who they were. [.
..]
MR.COOPER: So you showed the picture that we just looked at
which was C-4 or 5, whatever that was, right?
DETECTIVE RICHARD: The surveillance still. [. . . ]
MR. COOPER: Okay. And he said that’s Dre?
DETECTIVE RICHARD: He said I recognize the first person as Dre.
I don’t know the person behind him. [ . . . ]
MR. COOPER: And you found out who he [Dre] was based on the
research; is that correct?
DETECTIVE RICHARD: Yes, we eventually found out who he was.
(Notes of Testimony 2/16/15, pgs. 61-62)
The [d]etective eventually found out that Dre was [Appellant]
herein. Later that day, Mr. Anderson returned to the police station
to view the photo array at issue whereby he identified an
individual in one of those photos as Dre.
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After hearing the above testimony and viewing the surveillance
photo, the trial court determined that the identification procedure
was not unduly suggestive. (Notes of Testimony 2/16/15, p. 68).
The trial court deemed Detective Richard’s testimony credible[,]
indicating that he originally showed Anderson the surveillance
photograph outside of the apartment building purely to gather
information about individuals at the scene at the time of the
incident. At that point, law enforcement had no suspects. Mr.
Anderson recognized [Appellant] in the photograph as Dre, the
individual who visited him at his apartment on the night in
question. Again at that point Detective Richard [was] merely
gathering information concerning the individuals at the scene who
could provide information. Mr. Anderson left the police
department and the investigators continue[d] gathering
information, including information on Dre. They learn[ed] Dre’s
name [was] actually Daquan Hamilton, [Appellant] herein. When
Mr. Anderson [was] called back to the police department to view
a photo array, Daquan Hamilton’s photograph [was] included
therein. Mr. Anderson indicate[d] that he recognize[d]
[Appellant’s] photograph and identifie[d] him as Dre.
The court found that the identification process was not unduly
suggestive[,] given the quality of the surveillance photograph at
issue; given that the photograph was shown during the initial
information gathering process wherein there were not yet any
suspects; given that Mr. Anderson was never told that the men in
the photograph were suspects; given that Mr. Anderson did not
recognize the co-defendant [Jones] in the photograph; given that
time passed between showing Mr. Anderson the surveillance
photograph and the actual photo array; given that Mr. Anderson
identified [Appellant] as Dre; and, given that there was nothing
suggestive about the photo array itself. Thus, for all of those
reasons, the trial court properly declined to suppress the
identification.
Trial Court Opinion, 11/30/16, at 4-8. We agree with the trial court’s thorough
analysis and find no merit in Appellant’s argument.
Appellant next argues that the Commonwealth violated his
constitutional rights by exercising a peremptory strike against Juror 11, an
African-American, with discriminatory intent. Appellant argues that the
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Commonwealth failed to state a valid race-neutral reason for striking Juror
11, and that the trial court erred by ruling that he was required to establish a
pattern of discrimination before he could present a Batson4 challenge relating
to Juror 11. We disagree.
Batson held that the racially motivated use of peremptory challenges
to strike prospective jurors violates the Equal Protection Clause of the
Fourteenth Amendment. The Supreme Court set forth a three-part test for
examining the defendant’s claim that the prosecutor exercised peremptory
challenges in a racially discriminatory manner: first, the defendant must make
a prima facie showing that the circumstances give rise to an inference that
the prosecutor struck one or more prospective jurors on the account of race;
second, if a prima facie showing is made, the burden shifts to the prosecutor
to articulate a race-neutral explanation for striking the juror(s) at issue; and
third, the trial court must then make the ultimate determination of whether
the defense has carried the burden of proving purposeful discrimination.
Commonwealth v. Fletcher, 861 A.2d 898, 909 (Pa. 2004) (citing Batson).
The trial court’s decision on the ultimate question of discriminatory intent
represents a finding of fact of the sort accorded great deference
on appeal and will not be overturned unless clearly erroneous.
Such great deference is necessary because a reviewing court,
which analyzes only the transcripts from voir dire, is not as well
positioned as the trial court is to make credibility determinations.
Moreover, there will seldom be much evidence on the decisive
question of whether the race-neutral explanation for a peremptory
____________________________________________
4 Batson v. Kentucky, 476 U.S. 79 (1986).
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challenge should be believed; the best evidence often will be the
demeanor of the prosecutor who exercises the challenge.
Commonwealth v. Williams, 980 A.2d 510, 531 (Pa. 2009).
The record demonstrates that the Commonwealth articulated a race-
neutral reason for striking Juror 11: she suffered from migraine headaches.
The trial court found this explanation credible. Trial Ct. Op. at 14. We must
accord great deference to this decision, Williams, 980 A.2d at 531, and we
see nothing in the record that casts doubt on the court’s conclusion. Since
Appellant’s Batson challenge to striking Juror 11 lacks merit, his complaint
that the trial court erroneously required him to demonstrate a pattern of
discrimination before presenting a Batson challenge to Juror 11 is moot.
Finally, Appellant seeks a new trial based on alleged prosecutorial
misconduct during closing argument. First, Appellant claims that the
prosecutor improperly vouched for the credibility of Jones, who testified for
the Commonwealth. The prosecutor stated:
[The Commonwealth]: I submit, maybe they lied six months ago.
Maybe they might lie tomorrow. Yesterday, they were telling the
truth. They sat there yesterday and told you the truth. [Jones]
sat there and stood like a man and finally told you what happened.
May not have been telling the truth last month. He told the truth
yesterday. All the evidence points to that. He did tell the truth
yesterday, and that’s the only time he has to tell the truth was
yesterday.
[Defense counsel]: Objection.
[The Commonwealth]: Then he said they want back to the
apartment complex.
N.T., 6/18/15, at 121-22.
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To begin with, Appellant waived this issue due to defense counsel’s
failure to specify any grounds for his objection. Commonwealth v. Lopez,
57 A.3d 74, 82 (Pa. Super. 2012) (party must make timely and specific
objection to preserve issue for appellate review; merely stating “objection” is
insufficient). Even if Appellant had preserved this issue, it is devoid of merit.
“[T]he prosecution is accorded reasonable latitude, may employ oratorical flair
in arguing its version of the case to the jury, and may advance arguments
supported by the evidence or use inferences that can reasonably be derived
therefrom.” Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super.
2016). The prosecutor herein argued that the witnesses told the truth on the
stand because they were under oath, despite their earlier lies. These facts—
the witnesses had given prior inconsistent statements and were under oath
when they testified—were in the record. N.T., 6/17/15, at 78-80. Therefore,
the prosecutor advanced arguments that found support in the record, and he
did not improperly vouch for any witness’s credibility.
Second, Appellant argues that the Commonwealth prejudiced him
during closing argument by stating that the jury was the “voice” for the
deceased victim, Hashimbey. At the beginning of closing argument, the
prosecutor stated: “The only person who can’t speak anymore is George
Hashimbey . . . He really doesn’t have a voice anymore. He’s never gonna
speak again, never talk with his parents, anything. So he’s the one who can’t
speak any more. He was silenced.” N.T., 6/18/15, at 94. At the conclusion
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of his closing, the prosecutor added, “You’re his voice. You’re his voice for
him. You’re his voice for the family.” Id. at 141.
Once again, Appellant waived this argument, because defense counsel
did not object to either of the Commonwealth’s “voice” statements. Lopez,
57 A.3d at 82. Even if Appellant preserved this objection, it does not warrant
any relief.
[I]t is well settled that any challenged prosecutorial comment
must not be viewed in isolation, but rather must be considered in
the context in which it was offered. Our review of a prosecutor's
comment and an allegation of prosecutorial misconduct requires
us to evaluate whether a defendant received a fair trial, not a
perfect trial. Thus, it is well settled that statements made by the
prosecutor to the jury during closing argument will not form the
basis for granting a new trial unless the unavoidable effect of such
comments would be to prejudice the jury, forming in their minds
fixed bias and hostility toward the defendant so they could not
weigh the evidence objectively and render a true verdict. The
appellate courts have recognized that not every unwise remark by
an attorney amounts to misconduct or warrants the grant of a new
trial.
Jaynes, 135 A.3d at 615 (citations and quotation marks omitted). The
prosecutor made a passing remark during a lengthy closing argument that the
jury served as the victim’s “voice.” While this comment might have been
unnecessary, it did not have the unavoidable effect of prejudicing the jury.
The Commonwealth presented strong evidence of Appellant’s guilt during trial,
and the trial court instructed the jury to base its verdict on the evidence and
not on counsel’s arguments. N.T., 6/18/15, at 160-62. We conclude that the
jury decided this case based on the evidence presented against Appellant, not
on the closing argument of the Commonwealth.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/18/18
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