Com. v. Keita, J.

J-S27038-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOEWEL JOHN KEITA :
:
Appellant : No. 1432 MDA 2022
Appeal from the Judgment of Sentence Entered August 30, 2022
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000038-2021
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED: DECEMBER 28, 2023
Joewel John Keita (“Keita”) appeals from the judgment of sentence
entered following his jury convictions for first-degree murder, attempted first-
degree murder, and related offenses.1 After careful review, we affirm.
The trial court delineated the underlying facts and procedural history:
Leo Larios [“Mr. Larios”] and Albert Pena-Pena [“Mr. Pena-Pena”]
were in the . . . City of Reading, Berks County, Pennsylvania. . . .
Mr. Larios noticed two people walking toward them on Church
Street. One person was walking in the street, and the other
person was walking on the sidewalk. Mr. Larios described the man
on the sidewalk as Black and stocky, . . . wearing glasses and a
hoodie, and . . . had a face covering from his nose to his chin. . . .
[T]he person in the street was wearing a hoodie, sweatpants,
reflective shoes, and [a] ski mask. Mr. Larios . . . recognized the
man on the sidewalk as [Keita], but . . . he did not initially tell
that to any police officers because he did not want to be labeled
as a snitch.
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1 See 18 Pa.C.S.A. §§ 2502(a) and 901(a).
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. . . Mr. Larios got into the driver’s seat [of his car] and Mr.
Pena-Pena got into the passenger’s seat. As Mr. Larios was pulling
out of the parking space, he heard shots fired from behind them.
Mr. Larios was shot twice in the back of the head. . . . Mr. Pena-
Pena was also shot in the head and died [because] of his injuries.
Mr. Larios [had previously] encountered [Keita] . . . on the
streets and [] the two of them had exchanged messages on
Facebook. Criminal Investigator [“Investigator”] Daniel Cedeno
of the Reading Police Department presented two photo lineups to
Mr. Larios. Mr. Larios . . . recognized Devon Starr [Keita’s co-
defendant, “Starr”] in the lineup . . . as someone he knew, but []
he did not see [Starr] . . . on the night of the shooting. Mr. Larios
. . . recognized [Keita] in the lineup . . . as the man who walked
past him on the sidewalk on the night of the shooting. . . .
Mr. Larios . . . grew up with [Starr] and [] helped [] Starr
file for Pandemic Unemployment Assistance. [Mr. Larios and Starr
exchanged] Facebook messages [in which] . . . Starr complained
multiple times about how long it was taking for him to get the
money, accused Mr. Larios of stealing the money, and threatened
Mr. Larios.
Trial Court Opinion, 12/5/22, at 1-2 (record citations omitted).
The police investigation uncovered evidence, in the form of a recorded
telephone call between Starr’s incarcerated brother and Keita, discussing the
shooting. See id. at 3-4. The police obtained video surveillance footage
recorded on the night of the shooting which showed Starr and Keita, who had
a gun on his hip, in proximity to the shooting. See id. at 4.
Keita filed multiple motions to suppress the out-of-court identification
by Mr. Larios and asserting the affidavits of probable cause in both the arrest
and search warrant allegedly contained material misrepresentations. Mr.
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Larios and Investigator Cedeno testified at the suppression hearing about Mr.
Larios’s identification of Keita from a photo array. See N.T., 7/20/21, at 10-
72, 90-108.
Mr. Larios testified he knew Keita from around the neighborhood and
from Facebook. See id. at 14-15, 40-45. Mr. Larios noted Keita had a
memorable, “squeaky” voice which was “unique to that one person.” Id. at
14. Mr. Larios stated the man who walked by him on the sidewalk immediately
prior to the shooting spoke to him and he recognized Keita’s voice. See id.
at 10, 13-15.
Mr. Larios explained Investigator Cedeno showed him two photo arrays.
See id. at 21-29. He recognized Starr’s picture in the first photo array but
did so because he had known Starr for many years, not because he recognized
him from the night of the shooting. See id. at 21-22. Mr. Larios identified
Keita in the second photo array as the man on the sidewalk. See id. at 25.
Mr. Larios circled Keita’s photo in the array and signed and dated it. See id.
at 26-27. Mr. Larios viewed the photo array within forty hours of the shooting
and was frightened. See id. at 26-28. Because of this, when he identified
Keita, he told Investigator Cedeno he “felt like” Keita was the man on the
sidewalk. See id. at 28. Mr. Larios clarified, to him, “felt like” was the same
as saying “I knew that it was [Keita].” Id. at 28-29. Mr. Larios averred
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Investigator Cedeno did nothing to influence his selection of Keita from the
photo array. See id. at 21-23, 25, 70.
Investigator Cedeno also testified at the suppression hearing and
confirmed Mr. Larios recognized photographs in the first array but not from
the evening of the shooting. See id. at 90. Investigator Cedeno noted he
gave Mr. Larios the same instructions before looking at each photo array,
telling Mr. Larios to let Investigator Cedeno know if he recognized anyone in
the photographs as being connected to the shooting. See id. at 92-93.
Investigator Cedeno did not point to any specific person in the photo array,
did not tell Mr. Larios he had to identify anyone, did not tell Mr. Larios a
photograph of a suspect was included in the array, and did not suggest to Mr.
Larios where the photo of Keita was in the array. See id. at 93-94.
Investigator Cedena acknowledged telling Mr. Larios, “to do the right thing if
he recognizes somebody in [the photo array] from this incident.” Id. at 101.
A jury found Keita guilty of the offenses enumerated above. The trial
court sentenced Keita to life in prison without the possibility of parole, followed
by twenty to forty years of incarceration. Keita filed a timely post-sentence
motion, which the trial court denied. Keita then filed a timely appeal.2
Keita raises the following issue for our review:
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2 Keita and the trial court complied with Pa.R.A.P. 1925.
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Whether the [t]rial [c]ourt erred in denying [Keita’s] [o]mnibus
[p]retrial [m]otion to [s]uppress [i]dentification and to [s]uppress
[p]hysical [e]vidence?
Keita’s Brief at 7.
Keita challenges the denial of his motions to suppress. See Keita’s Brief
at 22-24. When reviewing an order denying a motion to suppress evidence,
[o]ur standard of review . . . is limited to determining whether the
findings of fact are supported by the record and whether the legal
conclusions drawn from those facts are in error. In making this
determination, this [C]ourt may only consider the evidence of the
Commonwealth’s witnesses, and so much of the witnesses for the
defendant, as fairly read in the context of the record[,] which
remains uncontradicted. If the evidence supports the findings of
the trial court, we are bound by such findings and may reverse
only if the legal conclusions drawn therefrom are erroneous.
Commonwealth v . Gindraw, 297 A.3d 848, 851 (Pa. Super. 2023) (citation
omitted).
We first consider Keita’s argument that Investigator Cedeno pressured
Mr. Larios to identify Keita from the photo array. Keita states:
During the photo lineup, [Mr.] Larios did not identify [Keita] as
the person who walked by him on the sidewalk of Church Street,
but [Investigator] Cedeno urged [Mr.] Larios to “do the right
thing.” [Mr.] Larios then picked out [Keita], not as the suspect in
the shooting, but merely as a person he knew from the
neighborhood. [Investigator] Cedeno instructed [Mr.] Larios to
circle the picture of [Keita] and place his initials next to the photo.
Keita’s Brief at 23.
In considering whether Keita’s argument merits relief, we note:
Whether an out of court identification is to be suppressed as
unreliable, and therefore violative of due process, is determined
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from the totality of the circumstances. 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. 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. Bishop, 266 A.3d 56, 63 (Pa. Super. 2021) (citation
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. Jaynes, 135 A.3d 606, 610 (Pa. Super.
2016) (citations and quotation marks omitted).
Keita waived this argument. It is well-settled “the failure to raise a
suppression issue prior to trial precludes its litigation for the first time at trial,
in post-trial motions or on appeal.” Commonwealth v. Douglass, 701 A.2d
1376, 1378 (Pa. Super. 1997) (citation omitted). Moreover, we have held,
“appellate review of [a ruling on] suppression is limited to examination of the
precise basis under which suppression initially was sought; no new theories of
relief may be considered on appeal.” Commonwealth v. Little, 903 A.2d
1269, 1272–73 (Pa. Super. 2006) (citation omitted); see also
Commonwealth v. Thur, 906 A.2d 552, 566 (Pa. Super. 2006) (stating the
same).
Keita did not argue in either his motion to suppress or at the suppression
hearing that Investigator Cedeno’s statement to Mr. Larios about doing the
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right thing tainted the identification. See Motion to Suppress Identification,
2/16/21, at 1-2 (unnumbered); N.T., 7/20/21, at 205-06. Keita mentioned
Investigator Cedeno’s statement for the first time in his post-hearing brief in
support of suppression, but did not raise it as a specific basis for seeking
suppression. See Brief in Support of Motion to Suppress, 9/13/21, at 12
(“After not picking out anyone from the photo array, [Investigator] Cedeno
prodded [Mr.] Larios ‘to do the right thing.’”) and 14 (Mr. Larios did not
identify Keita until “[Investigator] Cedeno[] pressure[d Mr.] Larios ‘to do the
right thing[.]’”). Thus, the trial court did not address this claim in its decision
denying Keita’s motion to suppress. See Trial Court Opinion, 11/30/21, at 9-
10.
Moreover, in his Rule 1925(b) statement, Keita did not raise this
argument, instead asking, “whether the trial court erred in denying [Keita’s]
omnibus pretrial motion to suppress identification and to suppress phyiscal
evidence[.]” Concise Statement of [Errors] Complained of On Appeal,
10/31/22, at 1 (capitalization omitted, unnumbered). “[T]he Pa.R.A.P.
1925(b) statement must be sufficiently ‘concise’ and ‘coherent’ such that the
trial court judge may be able to identify the issues to be raised on
appeal[.]” Commonwealth v. Vurimindi, 200 A.3d 1031, 1038 (Pa. Super.
2018) (emphasis added). Here, Keita raised a boilerplate challenge to the
denial of his motion to suppress. There was no way for the trial court to
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determine from Keita’s generic claim he was challenging the identification as
unreliable because of Investigator Cedeno’s statement. Thus, the trial court
did not address the argument in its Rule 1925(a) opinion. See Trial Court
Opinion, 12/5/22, at 1-8. Because Keita failed to properly preserve this
argument, it is waived. 3 Vurimindi, 200 A.3d at 1038.
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3 Moreover, it would not merit relief.Keita’s claim Mr. Larios did not identify
Keita as the man on the sidewalk at the time of the shooting but only as a
man Mr. Larios knew from the neighborhood is a misstatement of the record.
See Brief in Support of Motion to Suppress, 9/13/21, at 12-14; Keita’s Brief
at 23. The record reflects Mr. Larios recognized Starr’s photo in the first
photo array because he knew Starr from the neighborhood but did not see
him at the scene of the shooting. See N.T., 7/20/21, at 21-24. Mr. Larios
testified the man on the sidewalk prior to the shooting spoke to him and he
recognized Keita’s distinctive squeaky voice because he knew him from the
neighborhood. See id. at 14-15. Thus, he identified Keita from his photo as
the man on the sidewalk from the shooting. See id. at 24-27.
Further, Keita’s contention Mr. Larios was either unable to identify him
from the photo array or was unwilling to make the identification until
“prodded” by Investigator Cedeno is a mischaracterization of the record. See
Brief in Support of Motion to Suppress, 9/13/21, at 12-14; Keita’s Brief at 23.
During the suppression hearing, Keita did not question Mr. Larios regarding
Investigator Cedeno’s statement, thus there is nothing of record supporting
any contention Mr. Larios felt “prodded” or pressured by Investigator Cedeno’s
statement or that it contributed to his identification. See N.T., 7/20/21, at
25-26, 40-75.
Investigator Cedeno did not testify Mr. Larios was unable to make an
identification and then did so after being urged to “do the right thing.” See
id. at 92-93, 100-01. Rather in his brief testimony regarding the statement,
Investigator Cedeno explained Mr. Larios had begun to look at the pictures
from the second photo array when Investigator Cedeno made the statement.
See id. at 100-01.
(Footnote Continued Next Page)
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Keita also argues the identification by Mr. Larios should be suppressed
because the search warrant and arrest warrant contained “material
misrepresentation[s].” Keita’s Brief at 23. Namely, the affidavit of probable
cause attached to the arrest warrant stated, “[Mr.] Larios positively identified
[Keita] as the male who walked past him on the sidewalk with the hooded
sweatshirt.” Application for Arrest Warrant, Affidavit of Probable Cause, date
unreadable, at 5 (unnumbered). The search warrant stated, “Leo Larios
identified [] Keita as the male who walked past him on the sidewalk just prior
to the shooting.” Application for Search Warrant, Affidavit of Probable Cause,
8/26/20, at 2. Keita maintains these were material misrepresentations
because Mr. Larios did not make a positive identification but rather stated he
“felt like” Keita was the man on sidewalk. See Keita’s Brief at 24.
Keita relies on the Pennsylvania Supreme Court’s decision in
Commonwealth v. D’Angelo, 263 A.2d 441 (Pa. 1970). Keita argues the
D’Angelo Court held, “warrants that contain material misrepresentations by
police must be invalidated and any evidence that ultimately flows from them
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Keita has not shown the “identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Bishop, 266 A.3d at 63. Nor has he shown that, “under
the totality of the circumstances” the identification was unreliable. Jaynes,
135 A.3d at 610. Thus, even if not waived, this argument would not merit
relief.
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are fruit of the poisonous tree which must be suppressed.” Keita’s Brief at
24; see also D’Angelo, 263 A.2d at 444.
In denying Keita’s motion to suppress, the trial court rejected Keita’s
argument. It stated, “Defense counsel’s argument [] Mr. Larios stated [] he
‘felt like’ it was [] Keita does not equate to a material misrepresentation of
the identification of a suspect that led the Pennsylvania Supreme Court to
invalidate a search warrant in [D’Angelo].” Trial Court Opinion, 11/30/21, at
10. We agree.
To secure a valid search warrant,
an affiant must provide a magistrate with information sufficient to
persuade a reasonable person that there is probable cause for a
search. The information must give the magistrate the opportunity
to know and weigh the facts and to determine objectively whether
there is a need to invade a person’s privacy to enforce the law.
Commonwealth v. Baker, 24 A.3d 1006, 1017 (Pa. Super. 2011) (citations
omitted). See also Commonwealth v. Burno, 154 A.3d 764, 781 (Pa.
2017) (“There is, of course, no doubt that the issuing authority must have
probable cause to believe a suspect guilty of a crime charged against him
before issuing a warrant for his arrest. This is ancient law and basic to our
concept of freedom.” (citations omitted)). Further, “misstatements of fact will
invalidate a [] warrant and require suppression of the fruits of the search only
if the misstatements of fact are deliberate and material.” Baker, 24
A.3d at 1017 (emphasis in original). “The question of whether a misstatement
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was deliberately made is to be answered by the lower court.” Id. A fact is
material if, without it, probable cause to search would not exist. See id. at
1018.
Following our review, we discern no error in the trial court’s reasoning.
In D’Angelo, after viewing a suggestive lineup, the victim said D’Angelo
resembled the man who tried to rob him but could not make a positive
identification. See D’Angelo, 263 A.2d at 442-43. Despite this, the police
stated the victim had positively identified D’Angelo in their application for a
search warrant. Id. at 443.
Our Supreme Court held the trial court erred in not granting D’Angelo’s
motion to suppress. See id. The Court stated:
It is clear from the record that the affidavit filed with the
magistrate which caused the search warrant to issue was incorrect
and misleading when it stated [the victim made a positive
identification], for the Commonwealths own evidence establishes
that . . . this was not the case. . . . This . . . so tainted the search
that the evidentiary use of the fruits thereof violated due process
of law and, in itself, requires a reversal of the conviction and
judgment.
Id.
Here, unlike in D’Angelo, Mr. Larios immediately and positively
identified Keita’s photo in a photo array which trial court found was not unduly
suggestive. See Trial Court Opinion, 11/30/21, at 4-5, 10. Mr. Larios
explained his use of the word “felt” was the same as saying “I knew that it
was [Keita].” N.T., 7/20/21, at 28-29. Under these circumstances, the trial
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court did not find the police statements in the affidavits of probable cause
were material misrepresentations. Trial Court Opinion, 11/30/21, at 10. We
have no basis to overturn this finding of fact, which is supported by the record.
See Baker, 24 A.3d at 1018 (declining to overturn the trial court’s finding-of-
fact that, while the warrant contained a misstatement, the misstatement was
not deliberate).
As none of Keita’s arguments merit relief, we affirm his judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 12/28/2023
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