Com. v. Cary, M.

J-A20016-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MARCUS CARY,
Appellant No. 1956 EDA 2014
Appeal from the Judgment of Sentence June 6, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0008046-2013
BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED SEPTEMBER 14, 2015
Appellant, Marcus Cary, appeals from the judgment of sentence
entered following his convictions of recklessly endangering another person
and fleeing or attempting to elude a police officer. We affirm in part,
reverse in part, vacate the judgment of sentence, and remand for
resentencing.
The trial court summarized the history of this case as follows:
STATEMENT OF FACTS
On April 2, 2013, Philadelphia Police Officer Jorge Soto was
involved in a plain clothes narcotics investigation in the 500
block of North Groves Street, Philadelphia. N.T. 06/06/14, at 8.
Officer Soto observed a white female, Judy Veccio, approach and
enter into the passenger seat of a Silver Dodge Avenger, driven
by [Appellant]. N.T. 06/06/14, at 8. Officer Soto then observed
Veccio exchange an unknown amount of United States currency
for unknown items, which were poured into Veccio’s hands by
[Appellant]. N.T. 06/06/14, at 9. As Officer Soto relayed flash
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information regarding the observation to backup officers, Veccio
exited the vehicle, and [Appellant] took off at a high rate of
speed, nearly striking Soto’s Sergeant, who had reported to the
scene and pulled up right next to the driver’s side door of the
Avenger. N.T. 06/06/14, at 9. Two days later, Officer Soto
identified [Appellant] as being the person in the vehicle at the
crime scene after having been shown a single photograph by
detectives. N.T. 06/06/14, at 17.
PROCEDURAL HISTORY
[Appellant] was arrested and charged with Manufacture,
Delivery, or Possession With Intent to Manufacture [or] Deliver
(35 P.S. § 780-113 §§ A30), Intentional Possession of a
Controlled Substance By a Person who is Not Registered (35 P.S.
§ 780-113 §§ A16), Recklessly Endangering Another Person (18
PA.C.S.A. § 2705), and Fleeing or Attempting to Elude an Officer
(75 PA.C.S.A. § 3733 §§ A).
On July 10, 2013, [Appellant] filed a Motion to Suppress
Identification, which was subsequently denied on October 1,
2013.
[Appellant] waived his right to a jury trial, and instead
elected to have a bench trial. On June 6, 2014, this Court found
[Appellant] guilty of Recklessly Endangering Another Person and
of Fleeing or Attempting to Elude an Officer. [Appellant] was
found not guilty of all other charges. [Appellant] was sentenced
to two (2) years of probation for Recklessly Endangering Another
Person, and two (2) years of probation for Fleeing or Attempting
to Elude an Officer, to be served consecutively. Court costs of
$427 were imposed upon [Appellant].
Trial Court Opinion, 10/28/14, at 1-2. This timely appeal followed. Both
Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
A. WAS IT ERROR AND AN ABUSE OF DISCRETION FOR THE
COURT BELOW TO DENY APPELLANT’S MOTIONS FOR A LINE-UP
AND SUPPRESSION OF IDENTIFICATION IN LIGHT OF THE
SUGGESTIVE SINGLE PHOTO IDENTIFICATION USED BY THE
POLICE IN THE CASE AT BAR?
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B. WAS IT ERROR FOR THE COURT TO FIND APPELLANT GUILTY
OF VIOLATING 75 Pa.C.S.A. §3733 WHERE THERE WAS
INSUFFICIENT EVIDENCE OF THE ELEMENTS OF PURSUIT AND
VISUAL AND AUDIBLE SIGNAL, BOTH OF WHICH ARE
NECESSARY ELEMENTS OF THE OFFENSE?
Appellant’s Brief at 2.
Appellant first argues that the trial court erred by improperly admitting
into evidence the in-court identification testimony offered by Officer Soto.1
Specifically, Appellant contends that Officer Soto’s in-court identification of
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1
We note that Appellant has included in the statement of his issues in his
appellate brief a passing reference that the trial court erred in failing to
grant his request for a line-up. Appellant’s Brief at 2. To the extent
Appellant attempts to argue that the trial court improperly denied his
request for a line-up, we observe that Appellant has failed to properly
develop this issue for appellate review. It is undisputed that the argument
portion of an appellate brief must be developed with pertinent discussion of
the issue, which includes citations to relevant authority. Pa.R.A.P. 2119(a).
See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996)
(stating that “[t]he argument portion of an appellate brief must be
developed with a pertinent discussion of the point which includes citations to
the relevant authority”). Where an appellant has failed to cite any relevant
authority in support of a contention, the claim is waived. Commonwealth
v. Luktisch, 680 A.2d 877, 879 n.1 (Pa. Super. 1996). We decline to
review an appellant’s argument that contains no discussion of or citation to
relevant authority. Commonwealth v. Russell, 665 A.2d 1239, 1246 (Pa.
Super. 1995).
The argument section of Appellant’s brief addressing Appellant’s first
issue focuses upon the proper admission of Officer Soto’s in-court
identification of Appellant, and merely consists of general statements
without any citation to relevant authority supporting his allegation that the
trial court erred in denying a request for a line-up. Appellant’s Brief at 6-7.
Accordingly, because Appellant has not developed any significant argument
relating to the claim of trial court error in denying a request for a line-up in
the argument section of his appellate brief, we deem this portion of the issue
to be waived.
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Appellant should have been suppressed because Officer Soto’s single-
photograph identification of Appellant two days after the incident was
inherently suggestive and, therefore, tainted the officer’s in-court
identification of Appellant. We disagree.
In reviewing a suppression ruling, “we determine whether the court’s
factual findings are supported by the record and whether the legal
conclusions drawn from them are correct.” Commonwealth v. Mitchell,
902 A.2d 430, 450-451 (Pa. 2006). Where the party seeking review was the
defendant below, we “consider only the evidence offered by the
Commonwealth and so much of the evidence for the defense which remains
uncontradicted when fairly read in the context of the whole record.” Id. at
451. Where the record supports the suppression court’s findings of fact, we
are bound by them and may reverse only if the legal conclusions drawn
therefrom are in error. Id.
“In reviewing the propriety of identification evidence, the central
inquiry is whether, under the totality of the circumstances, the identification
was reliable.” Commonwealth v. Moye, 836 A.2d 973, 976 (Pa. Super.
2003). An eyewitness’s in-court identification of the accused is reliable
where its basis is independent of suggestive pretrial procedures.
Commonwealth v. Kendricks, 30 A.3d 499, 506 (Pa. Super. 2011) (citing
Commonwealth v. Abdul-Salaam, 678 A.2d 342, 349 (Pa. 1996)). The
Commonwealth must show “by clear and convincing evidence that the
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identification was not induced by events occurring between the time of the
crime and the in-court identification.” Commonwealth v. Carter, 643 A.2d
61, 71 (Pa. 1994). To determine whether an independent basis exists for a
witness’s identification, a court must consider these five factors:
(1) the opportunity of the witness to view the criminal at the
time of the crime; (2) the witness’s degree of attention; (3) the
accuracy of the witness’s prior description of the criminal; (4)
the level of certainty demonstrated by the witness during the
confrontation; and (5) the length of time between the crime and
the confrontation.
Kendricks, 30 A.3d at 506. The corrupting effect of the suggestive
identification, if any, must be weighed against these factors. Moye, 836
A.2d at 976. In addition, a witness’s prior familiarity with the accused
creates an independent basis for the witness’s in-court identification of the
defendant. Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010);
Commonwealth v. Johnson, 615 A.2d 1322, 1336 (Pa. Super. 1992).
In addressing this issue, the trial court offered the following
discussion:
From the evidence presented, it is clear that Officer Soto’s
identification of [Appellant] at trial was purged of whatever taint,
if any, was created by his previous single-photo identification of
[Appellant]. The Commonwealth has shown by clear and
convincing evidence that the witness’s in-court identification of
[Appellant] had an “independent origin,” that is, that the source
of the in-court identification was the witness’s observation of
[Appellant] during the incident and was independent of seeing
the single photo. Officer Soto had a prior opportunity to observe
the criminal act, as he was purposely at the scene of the crime
for purposes of a narcotics investigation. N.T. 06/06/14, at 8.
This Court cannot cite to any discrepancies made between the
pre-confrontation description and [Appellant’s] actual
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appearance. The lapse in time between the criminal act and the
photo identification was only two days. N.T. 06/06/14, at 17.
While Officer Soto was observing [Appellant] at night, he did so
with binoculars at a short distance of seven (7) to ten (10) feet
and with a full view of his face in the vehicle without any
obstruction. N.T. 06/06/14, at 11. Furthermore, [Officer] Soto’s
observation of [Appellant] at the crime scene was particularly
attentive because he was intentionally waiting for [a narcotics]
interaction to occur. N.T. 06/06/14, at 8. Finally, Officer Soto
has not testified as to any uncertainty in identifying [Appellant]
in the photograph. Accordingly, we cannot conclude that the
Court has erred in denying the motion to suppress the in-court
identification testimony, or that the identification process in the
instant case was prejudicial to [Appellant].
Trial Court Opinion, 10/28/14, at 4.
We agree with the trial court in this regard. Contrary to Appellant’s
argument, Officer Soto’s exposure to Appellant’s photograph did not render
his identification of Appellant improper or tainted by suggestiveness. Being
present at the scene to conduct narcotics surveillance, Officer Soto had an
independent basis, aside from the photograph, for his identification of
Appellant as the perpetrator. N.T., 10/1/13, at 5-10. Officer Soto testified
that he had seen Appellant in photographs prior to the incident in question.
N.T., 10/1/13, at 17-18; N.T., 6/6/14, at 11. Immediately after Appellant
drove away, Sergeant Linder, who was nearly struck by Appellant’s vehicle
as the sergeant stood next to the car, approached Officer Soto and identified
Appellant by name. N.T., 10/1/13, at 8-9, 14-15. Likewise, Sergeant
Linder, via stipulated testimony at trial, identified Appellant through his prior
knowledge of Appellant and observations the sergeant made during the
incident. N/T, 6/6/14, at 18-19. Thus, Officer Soto’s view of the single
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photograph of Appellant after the incident simply allowed the police to add
additional confirmation of the name of the perpetrator. Accordingly,
admission of Officer Soto’s identification was proper, and as such,
Appellant’s claim fails.
In addition, the Commonwealth contends that, even if permitting
Officer Soto’s in-court identification of Appellant was erroneous, it was
essentially harmless error because it was cumulative of Sergeant Linder’s
stipulated identification of Appellant. Our Supreme Court has explained:
Harmless error exists if the reviewing court is convinced from the
record that (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, 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 guilty verdict.
Commonwealth v. Petroll, 738 A.2d 993, 1005 (Pa. 1999). Evidence will
be considered cumulative if three requirements are met:
(1) There should be a substantial similarity, in the type of
evidence and the incriminating factual details between the
tainted evidence and the untainted evidence of which it is
“cumulative.” (2) The untainted evidence should be indisputable,
either because the facts are in some way affirmatively accepted
by the defendant or for other reasons. (3) Care should be taken
that the “untainted” evidence in no way derives from the tainted
evidence.
Commonwealth v. Billig, 399 A.2d 735, 738 (Pa. Super. 1979) (citation
omitted).
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In this case, the admission of Officer Soto’s identification testimony
was not prejudicial. Rather, it provided identification by an additional
independent witness who confirmed Appellant as the driver of the vehicle.
As our review of the certified record reflects, at the nonjury trial, the parties
stipulated that Sergeant Linder was present and that he would testify that he
recognized Appellant and immediately told Officer Soto Appellant’s name. 2
This untainted identification evidence from Sergeant Linder, which had been
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2
Regarding the stipulation of Sergeant Linder’s testimony, the following
transpired:
THE COURT: Now, [Sergeant] Linder, what do you need
[Sergeant] Linder for?
[ASSISTANT DISTRICT ATTORNEY]: [Sergeant] Linder is going
to testify that he approached the vehicle and saw [Appellant],
immediately told [Officer] Soto who the person was because he
had prior knowledge of who the person was and then [Appellant]
sped off almost striking him.
THE COURT: Didn’t [Officer] Soto just testify to that?
[ASSISTANT DISTRICT ATTORNEY]: Yes, I mean. I’m just going
to, if counsel can stipulate to what I just said there.
THE COURT: Bring [Sergeant Linder] in.
DEFENSE COUNSEL: I’ll stipulate that that’s what [Sergeant
Linder is] going to say.
THE COURT: Okay. [Sergeant] Linder is going to come in and
say, “[Officer Soto] called me. I went up to the car. [Appellant]
sped off. [Appellant] almost struck me. I told [Officer Soto]
who [Appellant] was. . . .”
N.T., 6/6/14, at 18-19.
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properly admitted by stipulation, was sufficiently strong so that the
testimony of Officer Soto could not, in itself, have contributed to the verdict.
Officer Soto’s identification testimony was merely cumulative of Sergeant
Linder’s stipulated identification testimony. Therefore, we conclude that any
possible error in admitting the identification evidence provided by Officer
Soto was harmless. Thus, Appellant’s issue fails.
In his second issue, Appellant argues that the Commonwealth failed to
prove the necessary elements for his conviction of fleeing or attempting to
elude an officer. Specifically, Appellant notes the Commonwealth failed to
establish beyond a reasonable doubt that he ignored visual and audible
signals by the police to stop his vehicle.
When reviewing a challenge to the sufficiency of the evidence, we
evaluate the record in the light most favorable to the Commonwealth as
verdict winner, giving the prosecution the benefit of all reasonable inferences
to be drawn from the evidence. Commonwealth v. Duncan, 932 A.2d
226, 231 (Pa. Super. 2007) (citation omitted). “Evidence will be deemed
sufficient to support the verdict when it establishes each material element of
the crime charged and the commission thereof by the accused, beyond a
reasonable doubt.” Id. (quoting Commonwealth v. Brewer, 876 A.2d
1029, 1032 (Pa. Super. 2005)). However, the Commonwealth need not
establish guilt to a mathematical certainty, and it may sustain its burden by
means of wholly circumstantial evidence. Id. In addition, this Court may
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not substitute its judgment for that of the factfinder, and where the record
contains support for the convictions, they may not be disturbed. Id. Lastly,
we note that the finder of fact is free to believe some, all, or none of the
evidence presented. Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.
Super. 2006).
The crime of fleeing or attempting to elude a police officer is defined in
the Motor Vehicle Code as follows:
§ 3733. Fleeing or attempting to elude police officer.
(a) Offense defined. -- Any driver of a motor vehicle who
willfully fails or refuses to bring his vehicle to a stop, or who
otherwise flees or attempts to elude a pursuing police officer,
when given a visual and audible signal to bring the vehicle
to a stop, commits an offense as graded in subsection (a.2).
75 Pa.C.S. § 3733(a) (emphasis added).
Our thorough review of the record reflects that the Commonwealth
failed to present any evidence that police gave Appellant a visual and audible
sign to bring his vehicle to a stop.3 N.T., 6/6/14, at 7-20. Likewise, the
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3
We note that the trial court states in its opinion that “[i]n this case, the
Commonwealth proved by clear and convincing evidence that [Appellant]
refused to bring his vehicle to a stop when Sergeant Linder gave him audible
and visual signals to stop his vehicle.” Trial Court Opinion, 10/28/14, at 5
(emphasis added). However, the record reflects no such evidence was ever
presented to the trial court. Moreover, the correct burden of proof for the
Commonwealth is not “clear and convincing evidence.” Rather, the
Commonwealth must establish all elements of the crime beyond a
reasonable doubt.
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Commonwealth has conceded that Appellant must be granted relief on this
particular issue.4 Commonwealth’s Brief at 17-18.
Accordingly, we reverse Appellant’s conviction for fleeing or attempting
to elude a police officer and vacate his judgment of sentence. Because our
reversal is based upon insufficient evidence, Appellant cannot be re-tried for
fleeing or attempting to elude a police officer, and he is discharged as to that
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4
We observe that the Commonwealth has included in its brief the following
discussion on this issue:
III. BECAUSE THE EVIDENCE WAS INSUFFICIENT TO
SUSTAIN [APPELLANT’S] CONVICTION OF FLEEING
OR ATTEMPTING TO ELUDE A POLICE OFFICER, THE
COMMONWEALTH DOES NOT OPPOSE RELIEF ON
THIS LIMITED BASIS.
Finally, [Appellant] challenges the sufficiency of the
evidence sustaining his conviction of fleeing or attempting to
elude a police officer. (Brief for Appellant at 8-9.) Upon review
of the applicable law, the Commonwealth agrees that the
testimony of record is inadequate to establish the “visual and
audible signal” requirement of Section 3733 of the Motor Vehicle
Code, notwithstanding the seriousness of [Appellant’s] conduct
of fleeing immediately upon the arrival of Sergeant Linder and
maneuvering his car so as to nearly hit him with the vehicle.
See 18 Pa.C.S. § 3733 (providing that “[a]ny driver of a motor
vehicle who willfully fails or refuses to bring his vehicle to a stop,
or who otherwise flees or attempts to elude a pursuing police
officer, when given a visual and audible signal to bring the
vehicle to a stop, commits an offense as graded in subsection
(a.2)”). Accordingly, the Commonwealth does not oppose relief
on this limited basis.
Commonwealth’s Brief at 17-18. We commend the Commonwealth for its
candor in this regard.
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crime. In addition, because our reversal vacates his judgment of sentence
for fleeing or attempting to elude a police officer, it upsets Appellant’s
sentencing scheme, and we remand for resentencing on the conviction of
recklessly endangering another person.5
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/14/2015
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5
See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006)
(stating that “[i]f our disposition upsets the overall sentencing scheme of the
trial court, we must remand so that the court can restructure its sentence
plan.”)
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