Com. v. Jackson, L.

J-A26017-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LESTER JACKSON : No. 1709 WDA 2018
Appeal from the Order Entered November 16, 2018
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0011082-2017
BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 23, 2020
The Commonwealth of Pennsylvania appeals as of right, under
Pennsylvania Rule of Appellate Procedure 311(d), from the order entered on
November 16, 2018. The subject order granted the motion to suppress that
was filed by Lester Jackson (hereinafter “Defendant”). We affirm.
At approximately 4:30 a.m. on September 25, 2015, there was a
gunfight outside of Silky’s Gentleman’s Club in McKees Rocks, Pennsylvania.
This gunfight resulted in the deaths of Lamont Evans (“Evans”) and Jarrell
Green (“Green”) and the wounding of another person. As stated in the
affidavit of probable cause:
During the course of the investigation[,] high quality
surveillance video was recovered from Silky’s Gentleman’s
Club. The video depicts [Evans] firing one shot at [Green].
Upon Evans firing the shot, Green falls onto the sidewalk in
front of [the Club,] dropping an apparent firearm to the
sidewalk in the process.
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[A third male] . . . is depicted in the video picking up the
firearm that Green dropped to the sidewalk and subsequently
pursuing Evans around the corner of the building and
repeatedly shooting in a reckless manner at him while Evans
and others are hiding behind vehicles parked in the parking
lot. [This third male] is seen on the video wearing a black
baseball style hat emblazoned with a red Polo emblem in the
center of the hat and a black colored shirt with dark blue
jeans and tan Timberland style boots.
...
Evans was found lying [dead] on the ramp that physically
connects the south side door entrance of the building to the
south parking lot. . . . . [A doctor from the Allegheny County
Medical Examiner’s Office] ruled [that Evans’] cause of death
was [a] penetrating gunshot to [the] trunk and the manner
of death was homicide.
Criminal Complaint, 10/15/15, at 2 (some capitalization omitted).
The affidavit further declares that, after watching the surveillance video,
Pennsylvania State Board of Probation and Parole Agent Martin Vojacek
identified the Defendant as being “the third male” in the video – and, thus,
the person shown in the video pursuing Evans around the Club and “repeatedly
shooting in a reckless manner at him.” Id. at 2-3. According to the affidavit,
after watching the video, Agent Vojacek “immediately recognized” the
Defendant, due to the fact that Agent Vojacek supervised the Defendant on
parole. Id. at 3.
The Defendant was arrested and the Commonwealth later charged him
with multiple crimes, including criminal homicide, attempted homicide, and
aggravated assault.1 Prior to trial, the Defendant filed a motion to suppress
____________________________________________
1 18 Pa.C.S.A. §§ 2501(a), 901(a), and 2702(a)(1), respectively.
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“any and all pretrial out of court identifications and any and all in-court
identifications made by [Agent Vojacek].” The Defendant’s Pretrial Motion,
4/16/18, at 5. The Defendant claimed that suppression was necessary
because, during the preliminary hearing, Agent Vojacek testified that he
“could not identify [the Defendant] based solely on what was depicted in the
video;” the Defendant alleged that Agent Vojacek’s “identification of [the
Defendant] was tainted by” suggestive police conduct. Id. at 5-7.
The trial court held a multi-day hearing on the Defendant’s suppression
motion. Within the trial court’s later opinion, the trial court thoroughly
summarized the evidence presented at the hearing, as well as its impressions
regarding the evidence:
[Agent] Vojacek testified that he learned about the shooting
while he happened to be watching the weekend news, and he
initiated contact with the Allegheny County Homicide
Detectives in order to provide assistance in the investigation.
He testified that the news report was the first time he learned
about the shooting of [Green], an individual who [Agent]
Vojacek did not supervise on parole. He testified that the
news report did not mention the Defendant's name. He also
testified that no one from law enforcement had reached out
to him about the investigation, and that he reached out to
them because he had a “potential interest in watching the
video of the shooting.” [Agent] Vojacek knew that [] Green
and the Defendant were known associates.
[Agent] Vojacek's testimony, however, is directly
contradicted by his own reports which he authored just days
after the shooting. The report authored on [September 30,
2015], just five [] days after the shooting, clearly states that
“on [September 28, 2015,] Detective Michael Feeney of the
Allegheny County Police Department Homicide Unit contacted
the [Pennsylvania Board of Probation and Parole] for
assistance in identifying the subject that was involved in the
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homicide.” The report he authored on [October 5, 2015], a
little less than two [] weeks after the shooting, states that
“on [September 25, 2015,] notification was received that the
[Defendant] was wanted for questioning regarding the
homicide of Jarrell Green.” Read together, the reports make
clear that (i) [Agent] Vojacek received notice on the day of
the shooting that the Defendant was wanted for questioning
in regards to the shooting, and (ii) [Agent] Vojacek was
contacted three [] days after the shooting by the homicide
unit for assistance in making an identification of the shooter.
When confronted with these reports, [Agent] Vojacek claimed
that his statement regarding Detective Feeney contacting
him was merely a “misprint.” However, his tone, expression,
and demeanor all conveyed to [the trial] court that he was
being less than truthful. How [Agent] Vojacek came to be
involved in the investigation directly bears on the question of
whether the overall procedure created a substantial likelihood
for misidentification, and the [trial] court finds the reports to
be the most credible piece of evidence in explaining the
sequence of events leading up to his identification.
Setting the notification issue aside, [Agent] Vojacek also
testified that, prior to watching the surveillance video on
[September 29, 2015], he conducted his own Facebook
investigation and found a picture of the Defendant and
[Green] from the night of the shooting. [Agent] Vojacek
admitted that at the time he saw the Facebook picture, he
had it in his mind that the Defendant “potentially . . . could
have been involved” in the shooting. In other words, [Agent]
Vojacek admitted that before viewing the video, he
researched the Defendant and saw the clothing he was
wearing on the night of the shooting, and he suspected the
Defendant's involvement in the shooting before watching the
video.
The circumstances surrounding the actual viewing of the
surveillance video further enhanced the suggestiveness of
the identification procedure. First, when [Agent] Vojacek
went to watch the video, he was accompanied by Agent
Mozingo, another parole agent who had been his "partner"
and who also had "ties" to the Defendant. Two other
detectives from Allegheny County were also present in the
room at the time the video was played. They all watched the
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video together, in the same room, at the same time, while
“actively discussing what they were seeing on the video.”
[Agent] Vojacek also indirectly confirmed that Agent Mozingo
was offering “input” about the images on the video.
While [Agent] Vojacek testified that the homicide detectives
never indicated that they knew who the Defendant was when
they were watching the video together, the fact that [Agent]
Vojacek provided less than credible testimony regarding how
he was alerted to the shooting and how he came to become
involved in the investigation unfortunately casts doubt over
his testimony as a whole, and specifically with respect to
whether anyone ever mentioned the Defendant's name prior
to watching the video, and what exactly was discussed in the
room while they were all viewing the video. The court notes
that [Agent] Vojacek was also untruthful when asked on
cross-examination whether he suspected the Defendant's
involvement at the time he watched the video. [Agent]
Vojacek said that he did “not think of that at the time,” even
though he admitted on direct examination that he suspected
the Defendant's involvement at the time he conducted his
Facebook investigation, which occurred prior to the video
viewing.
Furthermore, [Agent] Vojacek wavered on the certainty of his
identification. The [trial] court notes that, at the time he
viewed the video, [Agent] Vojacek was supervising
approximately 90-100 parolees, and he had not had any
contact with the Defendant since late July because the
Defendant had absconded from supervision. Initially, he
testified that he did not hesitate in making the identification.
However, on cross-examination, he admitted that he had to
watch the video four [] times, and that he made the
identification after the “second or third time.” He also
conceded that the identification was not based on the
suspect's face, because the face was only visible for “one
second.” [Agent] Vojacek admitted that the identification
was mainly based on the fact that the Defendant was “very
close friends” with [Green]. He also testified that “the
clothing characteristics” of the Defendant that he saw on
Facebook “matched the clothing” that the suspect was
wearing in the video. [Agent] Vojacek also conceded that the
identification was not based on the Defendant's gait.
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Trial Court Opinion, 11/16/18, at 2-6 (citations, emphasis, and some
corrections omitted).
After hearing this testimony, the trial court granted the Defendant’s
motion to suppress Agent Vojacek’s pretrial and in-court identifications of the
Defendant. Id. at 1. As the trial court explained, it suppressed Agent
Vojacek’s identification testimony because:
[Here,] we have a parole officer who found out on the day of
the shooting that the Defendant was wanted for questioning
in connection with the shooting, who then was specifically
contacted by the homicide unit for assistance in making the
identification. We have an officer who was less than
forthcoming about the nature of his contact with the
detectives, who conducted his own Facebook investigation
prior to watching the video and who learned what the
Defendant was wearing on the night in question. We have a
procedure where the video was viewed by multiple people at
the same time while there were discussions about what was
being depicted on the video. Viewing the video with multiple
other individuals in the same room at the same time while
discussing the images being shown on the video makes the
procedure highly suspect and creates a substantial likelihood
of misidentification. Indeed, having multiple people attempt
to make an identification together, at the same time, creates
the potential for a “mutual reinforcement situation.”
Lastly, we have an identification that was made after four []
viewings, and an identification that was not based on face,
appearance[,] or gait, but rather on the mere fact that the
Defendant was known to be “very close friends” with the
victim and the fact that the suspect was wearing similar
clothing to what the Defendant was wearing in the Facebook
picture. Accordingly, for all of these reasons, the [trial] court
finds that the identification procedure in this case was so
impermissibly suggestive that it created a substantial
likelihood of irreparable misidentification such that the
pretrial identification must be suppressed.
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...
[Moreover,] the Commonwealth cannot meet its burden of
proving that [Agent] Vojacek had an independent basis for
the identification outside of the unduly suggestive
identification procedure because [Agent] Vojacek was not an
eyewitness to the crime. . . .
The [trial] court also notes that the number and nature of
contacts [Agent] Vojacek previously had with the Defendant
is irrelevant given that he specifically testified that his
identification was not based on the suspect's gait or the “face
in and of itself” since the face was only visible for “one
second.” Thus, because the in-court identification is not
based on the observation of the crime in this case, there is
no independent basis for the identification, and [Agent]
Vojacek will be prohibited from making an in-court
identification at trial[, as well].
Id. at 8-10 (citations omitted).
Further, and independent of the above, the trial court ruled that Agent
Vojacek’s identification testimony was inadmissible because “the Defendant’s
ability to fairly and effectively cross-examine [Agent] Vojacek as to the
reliability of his identification would be substantially handicapped by the
nature of his relationship with the Defendant.” Id. at 10-11. Thus, the trial
court ruled that Agent Vojacek’s testimony was inadmissible because the
potential for unfair prejudice substantially outweighed the probative value of
the testimony. Id.
The Commonwealth filed a timely notice of appeal from the trial court’s
interlocutory order and, within the notice of appeal, the Commonwealth
certified that the order terminated or substantially handicapped its
prosecution of the Defendant. Commonwealth’s Notice of Appeal, 11/30/18,
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at 1-22; see also Pa.R.A.P. 311(d). The Commonwealth raises two claims on
appeal:
1. Whether the trial court erred in suppressing [Agent]
Vojacek’s [pretrial] and in-court identifications of [the
Defendant]?
2. Whether the trial court erred in further finding potential
unfair prejudice because it was [the Defendant’s] status as a
parolee and his relationship to [Agent Vojacek] that would
limit the [Defendant’s] ability to cross-examine or otherwise
challenge the identification procedure utilized in the instant
case, and therefore, excluding any testimony regarding the
circumstances surrounding the identification procedure?
Commonwealth’s Brief at 7.
First, the Commonwealth claims that the trial court erred when it
suppressed Agent Vojacek’s pretrial and in-court identifications of the
Defendant. “We review a trial court's order suppressing evidence for an abuse
of discretion and our scope of review consists of only the evidence from the
defendant's witnesses [during the suppression hearing,] along with the
Commonwealth's evidence that remains uncontroverted.” Commonwealth v.
Miller, 186 A.3d 448, 450 (Pa. Super. 2018) (quotations and citations
omitted). “Where the [trial] court’s factual findings are supported by the
record, we are bound by these findings and may reverse only if the [trial]
court's legal conclusions are erroneous.” Commonwealth v. Palmer, 145
A.3d 170, 173 (Pa. Super. 2016) (quotations and citations omitted).
Relatedly, “[i]t is within the suppression court’s sole province as factfinder to
pass on the credibility of witnesses and the weight to be given their
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testimony.” Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa. Super.
2006) (quotations and citations omitted).
“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).
“A court must assess the reliability of an out-of-court identification by
examining the totality of the circumstances.” Commonwealth v. Johnson,
139 A.3d 1257, 1278 (Pa. 2016). “A pre-trial identification violates due
process only when the facts and circumstances demonstrate that the
identification procedure was so impermissibly suggestive that it gave rise to a
very substantial likelihood of irreparable misidentification.” Id.Nevertheless, “in-court identifications, despite impermissibly suggestive
pre-trial procedures, are admissible if there exists an independent basis for
the identifications.” Commonwealth v. Abdul-Salaam, 678 A.2d 342, 349
(Pa. 1996). As our Supreme Court has explained:
To allow an in-court identification following a suggestive
pre-trial identification, the Commonwealth must establish, by
clear and convincing evidence, that the identification was not
a product of the events occurring between the time of the
crime and the in-court identification. Therefore, an in-court
identification will be permitted if, considering the totality of
the circumstances, the in-court identification had an origin
sufficiently distinguishable to be purged of the primary taint.
In determining whether an independent basis exists for the
identification, the factors to be considered in this
determination are: (1) the opportunity of the witness to view
the criminal at the time of the crime; (2) the witness’ degree
of attention; (3) the accuracy of the witness’ prior description
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of the criminal; (4) the level of certainty demonstrated by the
witness at the confrontation; and (5) the length of time
between the crime and the confrontation.
Id. (citations and quotations omitted).
The Commonwealth concedes that the pretrial identification procedures
were unduly suggestive. See Commonwealth’s Brief at 15 (“the
Commonwealth will not argue with the [trial] court’s conclusion that the
identification process was unduly suggestive given the [trial] court’s findings
of fact and credibility”). As explained above, “[t]o establish reliability in the
wake of a suggestive identification, the Commonwealth must prove, through
clear and convincing evidence, the existence of an independent basis for the
identification.” Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super.
2011) (quotations, citations, and corrections omitted). An independent basis
is established when the identification “resulted from the criminal act and not
the suggestive identification procedure.” Id. (quotations, citations, and
corrections omitted); see also Neil v. Biggers, 409 U.S. 188, 199 (1972)
(holding that “unnecessary suggestiveness alone” does not require the
exclusion of an out-of-court identification; “the central question [is] whether
under the ‘totality of the circumstances’ the identification was reliable even
though the confrontation procedure was suggestive”).
In this case, Agent Vojacek did not witness the crime. Instead, he
identified the Defendant after viewing a surveillance video with two homicide
detectives and another parole agent – in a setting and through a process that
the Commonwealth agrees was unduly suggestive. Therefore, under the plain
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language of the above-quoted standards set forth in Abdul-Salaam and
Davis, Agent Vojacek has no “independent basis for [his] identification,” as
he did not observe the crime and his identification could not be based upon
“the criminal act.” See id.Obviously, the facts in the case at bar are unique given that, here, the
person who is being asked to make the identification did not witness the crime
and, is instead, being proffered because he is familiar with the Defendant.
However, even if we broadly ask “whether under the ‘totality of the
circumstances’ the identification was reliable even though the [pretrial
identification] procedure was suggestive,” it is clear that the trial court did not
err when it suppressed Agent Vojacek’s identification of the Defendant. See
Neil, 409 U.S. at 199.
Here, Agent Vojacek did not witness the crime and was only asked to
identify the Defendant in a surveillance video. Moreover, the trial court found,
as a fact, that Agent Vojacek’s “identification” of the Defendant in the
surveillance video was not based upon (what the Commonwealth terms) his
“meaningful pre-existing relationship with [the Defendant]” as the
Defendant’s parole officer. See Commonwealth’s Brief at 17. Certainly, the
trial court explained:
[during the suppression hearing, Agent Vojacek] conceded
that the identification [of the Defendant] was not based on
the suspect's face, because the face was only visible for "one
second." [Agent] Vojacek admitted that the identification
was mainly based on the fact that the Defendant was "very
close friends" with Mr. Green. [Agent Vojacek] also testified
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that "the clothing characteristics" of the Defendant that he
saw on Facebook "matched the clothing" that the suspect was
wearing in the video. [Agent] Vojacek also conceded that the
identification was not based on the Defendant's gait.
...
[Thus,] the number and nature of contacts [Agent] Vojacek
previously had with the Defendant is irrelevant given that he
specifically testified that his identification was not based on
the suspect's gait or the "face in and of itself" since the face
was only visible for "one second."
Trial Court Opinion, 11/16/18, at 6 and 10 (citations omitted).
These factual findings are binding on this Court and establish that Agent
Vojacek’s identification of the Defendant was based upon the Defendant’s
mere association with one of the murder victims and clothes that Agent
Vojacek observed the Defendant wearing on social media. Neither of these
factors support the Commonwealth’s claim that Agent Vojacek’s identification
was based upon his “meaningful pre-existing relationship with [the
Defendant]” and these tenuous factors do not “prove, through clear and
convincing evidence, the existence of an independent basis for [Agent
Vojacek’s] identification” of the Defendant. Commonwealth’s Brief at 19;
Davis, 17 A.3d at 394.
Therefore, we conclude that the trial court did not err when it
suppressed Agent Vojacek’s pretrial and in-court identifications of the
Defendant, as they are unreliable. See Neil, 409 U.S. at 199. Moreover,
given our disposition, the Commonwealth’s second claim on appeal is moot,
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as this claim merely attacks the trial court’s alternate reason for excluding
Agent Vojacek’s in-court identification of the Defendant.
Order affirmed. Jurisdiction relinquished.
Judge Shogan joins.
Judge Lazarus notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/23/2020
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