Commonwealth v. Brown

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2018 Pa. Super. 338
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES LORENZO BROWN :
:
Appellant : No. 1904 EDA 2016
Appeal from the Judgment of Sentence June 3, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009330-2011
BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.
OPINION BY LAZARUS, J.: FILED DECEMBER 11, 2018
James Lorenzo Brown appeals from his judgment of sentence, entered
in the Court of Common Pleas of Philadelphia County, after a jury convicted
him of robbery1 and possessing instruments of crime (“PIC”),2 and the trial
court convicted him of possession of a firearm by person prohibited.3 Upon
careful review, we affirm.
The trial court set forth the facts of this matter as follows:
On June 26, 2015, Gwenervere Presley (hereinafter, “the
Complainant”) had her aunt drive her to the ATM at 50th and
Baltimore Avenue, in the city and county of Philadelphia. The
Complain[an]t’s 13[-]year[-]old daughter, Royalti, rode with
them. They arrived at the ATM at approximately 11:30 a.m. The
Complainant exited the vehicle. Her aunt and Royalti waited in
the car. The Complainant withdrew $100 from the ATM. She put
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1 18 Pa.C.S.A. § 3701.
2 18 Pa.C.S.A. § 907.
3 18 Pa.C.S.A. § 6105.
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the money in her pocket. She then proceeded to make another
ATM withdrawal. As she was waiting for the transaction to be
completed, she felt someone standing unusually close to her. She
looked up and saw a man’s face. He was standing to her left side,
right next to her. The man showed the Complainant a gun in his
waist. She started screaming. The man then pointed the gun at
her and told her to give him her money. She began to scream
more frantically. She feared for her life. She gave the man $100.
He then turned around, walked to a car parked on the corner of
50th and Baltimore Avenue, entered the passenger side of the car,
and rode off. Royalti had the presence of mind to get the license
plate number off the car the man entered and place it in her cell
phone.
Trial Court Opinion, 11/29/17, at 1-2 (citations to record omitted).
Using the tag number obtained by the Complainant’s daughter, police
identified Ernest Matthews as the owner of the vehicle in which the suspect
fled. Upon questioning, Matthews identified Brown as the individual seen
riding away in his car after the Complainant was robbed. On July 12, 2011,
the Complainant identified Brown from a photo array as the man who had
robbed her.
On October 29, 2015, a jury found Brown guilty of robbery and PIC.
Following the jury verdict, the parties proceeded to a stipulated waiver trial
on the charge of possession of firearm by person prohibited, after which the
court entered a guilty verdict. On May 11, 2016, the court sentenced Brown
to an aggregate sentence of 32½ to 65 years’ imprisonment. 4 On June 16,
2016, Brown filed a timely notice of appeal. On August 9, 2016, the trial court
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4 The court initially sentenced Brown to an aggregate of 37½ to 75 years’
incarceration. However, upon consideration of Brown’s post-sentence motion,
the court agreed that it had exceeded the statutory maximum on the firearm
charge and resentenced Brown accordingly.
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ordered Brown to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b) within 21 days. Brown failed to timely file his
Rule 1925(b) statement and the trial court subsequently entered a Rule
1925(a) opinion noting Brown’s lack of compliance. On January 10, 2017, this
Court remanded the case to the trial court for the filing of a Rule 1925(b)
statement. Brown timely complied, and the trial court issued an updated Rule
1925(a) opinion. Brown raises the following issues on appeal:
1. Did not the [trial] court err in denying [Brown’s] motion to
admit expert testimony on the subject of eyewitness
identification?
2. Did not the [trial] court err in denying [Brown’s] motion in
limine to prohibit inadmissible evidence and argument regarding
the accuracy of the witness’ identification of [Brown] as related to
her level of confidence in her identification where scientific
evidence proves that there is no correlation between how certain
a witness is of his/her identification and the accuracy of that
identification?
3. Did not the trial court err in denying [Brown’s] request for
supplemental jury instructions which were carefully targeted
toward juror recognition of the validity of deep-seated beliefs on
issues crucial to [Brown’s] defense?
4. Did not the [trial] court err by denying [Brown’s] “Motion to
Dismiss or in Alternative Preclude Testimony” for the
Commonwealth’s failure to preserve exculpatory material?
Brief of Appellant, at 4.
First, Brown contends that the trial court erred in denying his motion to
admit expert testimony on the subject of eyewitness identification.
Specifically, Brown argues that the “significant misunderstandings regarding
perception, memory and recall and the reliability of eyewitness identification”
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of jurors can only be addressed through expert testimony, Appellant’s Brief at
16, and that in light of the Supreme Court’s recent rejection of a per se ban
on expert testimony, he is entitled to a new trial. See Commonwealth v.
Walker, 92 A.3d 766, 787 (Pa. 2014) (holding admission of expert testimony
regarding eyewitness identification not per se impermissible but instead
subject to discretionary decision of trial court).
This Court evaluates the admission of evidence by an abuse of discretion
standard. Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014). An abuse
of discretion is not merely an error of judgment. Rather, discretion is abused
when the law is overridden or misapplied, or the judgment exercised is
manifestly unreasonable or the result of partiality, prejudice, or ill-will, as
shown by the evidence of record. Commonwealth v. Busanet, 817 A.2d
1060, 1076 (Pa. 2002).
While our Supreme Court has abandoned the absolute ban on expert
testimony regarding eyewitness identification, its admission is not mandatory.
Rather, such expert testimony is generally admissible only when it is relevant
and where “the Commonwealth’s case is solely or primarily dependent upon
eyewitness testimony.” Walker, 92 A.3d at 787.
The matter sub judice is distinguishable from Walker. In Walker, the
Commonwealth’s primary evidence consisted of a cross-racial identification,
at night, where the victim had a fleeting view of the perpetrator. Additionally,
there was no corroborating evidence as to the identification of the perpetrator.
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In contrast, here, the Complainant and her daughter viewed the
assailant in daylight and Complainant was able to specifically describe Brown
and his clothing, which included a Philadelphia Eagles jersey. The
Complainant also testified that the perpetrator fled the scene in the passenger
seat of a black vehicle. The Complainant’s daughter corroborated her
mother’s description of the man, whom she saw flee to the vehicle. Using the
license number recorded by the Complainant’s daughter, authorities located
the vehicle’s owner, Ernest Matthews. Matthews confirmed that Brown was in
Matthews’ black vehicle on the day of the robbery and corroborated the
description of his attire. Matthews further testified that Brown had no money
when he left the vehicle and returned moments later with money in his hand.
Finally, police obtained surveillance footage from the bank, and both Royalti
and Matthews identified Brown and his clothing in photographic stills from the
footage.
Because the eyewitness identification in this case was substantially
corroborated by independent evidence, the trial court acted within its
discretion in denying the admission of expert testimony relating to the
identification.
Brown next argues that the trial court improperly denied his motion in
limine to bar witness testimony and prosecutorial argument concerning
witness confidence. Specifically, he argues that the Complainant’s testimony
concerning her own confidence in her identification of him should be barred
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because “[s]cientific evidence proves no correlation between how certain a
witness is of his/her identification and how accurate the identification is.”
Appellant’s Brief, at 18.
The standard of review on appeal of a denial of a motion in limine is
abuse of discretion. Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa.
Super. 2013). “The trial court has considerable discretion in ruling upon
whether testimony is ‘fact’ or ‘opinion’ testimony, and if ‘opinion,’ whether it
should be admitted or excluded.” Commonwealth v. Galloway, 485 A.2d
776, 781 (Pa. Super. 1984).
In his brief, Brown fails to identify any specific testimony in which the
Complainant vouches for the accuracy of, or characterizes her degree of
certainty in, her identification of Brown. In order for this Court to determine
whether Brown was prejudiced by the trial court’s adverse ruling on his motion
in limine, he must, at a minimum, direct us to the specific places in the record
where allegedly prejudicial testimony was elicited. He has failed to do so, thus
substantially impeding our review of this issue. Accordingly, Brown has
waived his claim. Commonwealth v. Smith, 985 A.2d 886, 906-07 (Pa.
2009) (failure to properly develop argument, with proper citation to record,
results in waiver of claim); Pa.R.A.P. 2101 (when defects in brief impede our
ability to conduct meaningful appellate review, we may dismiss appeal entirely
or find certain issues waived).
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Brown next alleges that the trial court erred in refusing to allow his
requested jury instruction as to eyewitness identification because “the instant
case [] involved an eyewitness identification in a situation of high stress
involving a weapon that happened very quickly.” Appellant’s Brief, at 22.
Brown requested that the trial court instruct the jury using an “enhanced jury
charge[]” adopted by the Supreme Court of New Jersey in State of New
Jersey v. Henderson, 27 A.3d 872 (N.J. 2011). Brown is entitled to no relief.
We review a trial court’s refusal to give a specific jury instruction for an
abuse of discretion or error of law. Commonwealth v. Demarco, 809 A.2d
256, 260–61 (Pa. 2002). The trial court has broad discretion in its phrasing
of jury instructions “so long as the issue is adequately, accurately, and clearly
presented to the jury for its consideration.” Commonwealth v. Bey, 375
A.2d 1304, 1310 (Pa. 1977); Commonwealth v. Holder, 765 A.2d 1156,
1159 (Pa. Super. 2001).
Brown’s argument in support of this claim is undeveloped, unsupported
and, as a result, waived. Brown asks us to adopt and apply extrajudicial law
without explaining why Pennsylvania’s framework is insufficient to address his
concerns. Additionally, while he provides us with the citation to Henderson,
he does not identify—much less elaborate on—any of the specific factors
articulated in the New Jersey decision. Because Brown’s argument consists of
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a bald assertion, devoid of any discussion or reliable case law, we are
compelled to find his claim waived.5 Smith, supra.
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5Even if Brown had not waived this claim, he would be entitled to no relief.
The trial court instructed the jury as follows:
Some of the witnesses in their testimony identified the defendant
as the person who committed the crime. In evaluating and
identifying witness testimony, in addition to the other instructions
I have provided to you for judging the testimony of witnesses, you
should consider the additional following factors: Did the witness
have a good opportunity to observe the perpetrator of the
offense? Was there sufficient lighting for the witness to make his
or her observations? Was the witness close enough to the
individual to note the facial and other physical characteristics as
well as any clothing he or she was wearing? Has the witness made
a prior identification of the defendant as the perpetrator of these
crimes at any other proceedings? Was the witness's identification
positive or was it qualified by any hedging or inconsistency?
During the course of this case did the witness identify anyone else
as the perpetrator?
...
Now, there is a question of whether some of those identifications
are accurate. A victim or other witness can sometimes make a
mistake when trying to identify the criminal. If certain factors are
present, the accuracy of identification testimony is so doubtful
that a jury must receive it with caution.
Identification testimony must be received with caution if the
witness, because of bad position, poor lighting, or other reasons,
did not have a good opportunity to observe the criminal; if the
witness in their testimony is not positive as to the identity; if the
witness's positive testimony as to identity is weakened by
qualification, hedging, or inconsistencies in the rest of their
testimony; by their not identifying the defendant or identifying
someone else as the criminal before the trial began. If you believe
that one or more of these factors are present, then you must
consider with caution the witness’s testimony identifying the
defendant as the person who committed the crime. If, however,
you do not believe that at least one of these factors is present,
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Lastly, Brown claims that the trial court erred by denying his motion to
preclude the photographic stills from the bank’s surveillance footage as a
discovery sanction for the Commonwealth’s failure to preserve evidence.
Brown asserts that the Commonwealth’s failure to preserve the surveillance
video “violated [his] absolute discovery rights pursuant to [Pa.R.Crim.P.] 573,
and, as well, his rights to both a fair trial and to present a defense simply
because the court refused to impose any sanctions[.]” Brief of Appellant, at
27. He is entitled to no relief.
If a discovery violation occurs, the court may grant a trial
continuance or prohibit the introduction of the evidence or may
enter any order it deems just under the circumstances.
Pa.R.Crim.P. 573(E)[]. The trial court has broad discretion in
choosing the appropriate remedy for a discovery violation.
Commonwealth v. Johnson, [] 727 A.2d 1089 ([Pa.] 1999).
Our scope of review is whether the court abused its discretion in
not excluding evidence pursuant to Rule 573(E). Id. (citing
Commonwealth v. Jones, [] 668 A.2d 491 ([Pa.] 1995)). A
defendant seeking relief from a discovery violation must
demonstrate prejudice. Id. (citing Commonwealth v.
Counterman, [] 719 A.2d 284 ([Pa.] 1998)). A violation of
discovery “does not automatically entitle appellant to a new trial.”
Jones, 668 A.2d at 513[]. Rather, an appellant must
demonstrate how a more timely disclosure would have affected
his trial strategy or how he was otherwise prejudiced by the
alleged late disclosure. Id. (citing Commonwealth v.
Chambers, [] 599 A.2d 630, 636–38 ([Pa.] 1991) (no error in
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then you need not receive the testimony with caution. You may
treat it like any other testimony.
N.T. Trial, 10/29/15, at 96-98.
The instruction given by the trial court adequately, accurately, and clearly
presented the issue and the law to the jury for its consideration. Bey, supra.
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denial of mistrial motion for untimely disclosure where appellant
cannot demonstrate prejudice)).
Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003).
Here, Brown’s claim involves the loss of the original bank surveillance
footage, from which the stills presented at trial were obtained. The trial court
found the circumstances surrounding the loss of the video footage to be as
follows:
Detective Darren Lindsey – the lead detective in the case –
testified at length during trial about the missing video. The
robbery occurred on June 26, 2011[,] and the detective was
transferred to East Detectives in December, 2011. The detective
stated that when he received a call in March or April of 2012
requesting the video he “went back to Southwest Detectives [his
previous post] to look for [the] file [that contained the video], but
the file was no longer in central filing . . . [the detective had] never
seen a file disappear. [He had] no idea how the file was lost.”
N.T. 10/28/2015 at 22. However, the detective further testified
that all the documents in the file that went missing, including the
photographic stills from the missing file, were previously uploaded
to the system directly linked to the District Attorney’s office and
was no different than what was presented at trial.
Trial Court Opinion, 11/29/17, at 14.
Pennsylvania Rule of Criminal Procedure 573 provides, in relevant part,
as follows
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant’s attorney all of the following requested items or
information, provided they are material to the instant case. The
Commonwealth shall, when applicable, permit the defendant’s
attorney to inspect and copy or photograph such items.
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(a) Any evidence favorable to the accused that is material either
to guilt or to punishment, and is within the possession or control
of the attorney for the Commonwealth;
...
(f) any tangible objects, including documents, photographs,
fingerprints, or other tangible evidence[.]
Pa.R.Crim.P. 573(B).
Pennsylvania Rule of Criminal Procedure 573 governs pre-trial discovery
in criminal cases. The rule requires the disclosure of evidence by the
Commonwealth where it is: “(1) requested by the defendant, (2) material to
the case, and (3) within the possession or control of the prosecutor.”
Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citations
omitted).
Mandatory discovery includes, inter alia:
(a) Any evidence favorable to the accused that is material either
to guilt or to punishment, and is within the possession or control
of the attorney for the Commonwealth.
Pa.R.Crim.P. 573 (B)(1)(a). The rule also provides remedial measures to
address violations as follows:
If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply with
this rule, the court may order such party to permit discovery or
inspection, may grant a continuance, or may prohibit such party
from introducing evidence not disclosed, other than testimony of
the defendant, or it may enter such other order as it deems just
under the circumstances.
Pa.R.Crim.P. 573(E).
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The decision of the United States Supreme Court in Brady v. Maryland,
373 U.S. 83 (1963), also governs pre-trial discovery in criminal matters. Rule
573 imposes greater obligations upon prosecutors than the Brady
requirements. Commonwealth v. Maldonodo, 173 A.3d 769, 774 (Pa.
Super. 2017). Nevertheless, our cases frequently analyze whether a
particular discovery sanction was justified by analyzing whether the evidence
was required to be disclosed pursuant to Brady. See Maldonodo, 173 A.3d
at 774.
In Brady, the Court held that “the suppression by the prosecution of
evidence favorable to an accused upon request violates due process where
the evidence is material either to guilt or to punishment.” Id. at 84. “There
are three necessary components that demonstrate a violation of the Brady
strictures: the evidence was favorable to the accused, either because it is
exculpatory or because it impeaches; the evidence was suppressed by the
prosecution, either willfully or inadvertently; and prejudice ensued.”
Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001). Evidence is
material “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been
different.” Strickler v. Greene, 527 U.S. 263 (1999) (citation omitted).
Finally, “unless a criminal defendant can show bad faith on the part the police,
failure to preserve potentially useful evidence does not constitute a denial of
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due process of law.” Commonwealth v. Small, 741 A.2d 666, 676 (Pa.
1999), quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988).
Here, the trial court concluded that the Commonwealth did not act in
bad faith by intentionally suppressing the surveillance video and, thus,
declined to impose sanctions.
[T]he Commonwealth did not act in bad faith in failing to preserve
the video evidence. The Commonwealth made a bona fide search
for the video tape in question and procured the photographic stills
of the videotape from the garage of a detective one year after the
arrest. These photographic stills were then made available to the
Defendant.
Trial Court Opinion, 11/29/17, at 14. The record supports this conclusion.
Brown also failed to demonstrate prejudice. Causey, supra. First,
there was substantial evidence of Brown’s guilt presented at trial, including
two eyewitnesses who identified Brown as the perpetrator. Nor does Brown
argue that his trial strategy would have been different had the videotape been
available. See id. (appellant must demonstrate how timely disclosure would
have affected trial strategy or how he was otherwise prejudiced). As the trial
court further noted:
[T]he Defendant fails to demonstrate what prejudice the late
disclosure of photos and loss of the videotape caused. Defense
counsel conceded that [it was] "not an issue that [the
photographs] weren’t passed to us in sufficient time.” N.T.,
10/22/2015, at 15. Thus, the Defendant’s only remaining claim
regarding preclusion as a sanction for violation of discovery rules
rests purely around the loss of the videotape. If it becomes
apparent that a party has failed to comply with Rule 573, the trial
court has broad discretion in choosing an appropriate remedy.
The record reflects that it cannot be said the loss of the videotape
evidence denied the Defendant a fair trial. The detective that had
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possession of the videotape was called as a witness at trial and
the Defendant was afforded the opportunity to question, and
impeach, the detective about the missing videotape. Defense
counsel specifically asked “And, Officer, you are the only one, and
the bank manager, perhaps, who’s ever seen this video in this
entire time.” N.T. [Trial], 10/28/2015, at 160. Further, the trial
court, in providing instructions to the jury prior to deliberation,
charged the jury that:
There is a question about what weight, if any, you should
give to the failure of the Commonwealth to produce an item
of potential evidence at this trial. In this case that evidence
is the video of the incident ... [if you find the three factors
present] and there is no satisfactory explanation for the
Commonwealth’s failure to produce the video at this trial,
you may infer, if you choose to do so, that it would have
been unfavorable to the Commonwealth.
N.T. [Trial], 10/29/2015, at 98-99. There exist[] sufficient facts
within the record to support that the Defendant did not suffer any
prejudice through the loss of the videotape and the jury was given
specific instructions regarding its loss. Therefore, the trial court
did not abuse its discretion by properly denying the preclusion of
the photographic stills as a sanction for discovery violations.
Trial Court Opinion, 11/29/17, at 24-25.
In sum, there is no reasonable probability that the outcome of trial
would have changed had Brown had access to the surveillance videotape.
Thus, the trial court did not abuse its discretion in declining to exclude the still
photographs as a discovery sanction, and Brown is entitled to no relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/18
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