Commonwealth of Pa. v. James Fulmore.Commonwealth of Pa.

25 A.3d 340

2011 PA Super 132

COMMONWEALTH of Pennsylvania, Appellant

v.James FULMORE.Commonwealth of Pennsylvania, Appellant

v.Desean Kingwood.

Superior Court of Pennsylvania.

Argued Oct. 25, 2010.Filed June 27, 2011.

Peter Carr, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.Samuel Alboum, Philadelphia, for Fulmore, appellee.Ellen McBennett, Public Defender, for Kingwood, appellee.BEFORE: FORD ELLIOTT, P.J., GANTMAN and DONOHUE, JJ.OPINION BY FORD ELLIOTT, P.J.:

This is an appeal by the Commonwealth from orders suppressing the identification of appellees, James Fulmore and Desean Kingwood, as the perpetrators in a shooting.¹ Following careful review, we reverse. ²

On June 30, 2008, shortly after midnight in Philadelphia, the victim, Joshua Hernandez (“Hernandez”), was walking on Orthodox Street toward Frankford Avenue with a friend, “Dave,” when he noticed a car pull up along the curb and stop directly under a street light. As he was in the process of texting messages on his cell phone, Hernandez did not pay much attention to the car, or the two men that alighted from the vehicle and then went to the trunk of the vehicle. A short time later, Hernandez took notice as Dave suddenly began running away from him. Hernandez then felt a man grab him; that man would later be identified as appellee, Desean Kingwood (“Kingwood”).

Hernandez began to instinctively react in a defensive manner only to be told by Kingwood “don't do it.” (Notes of testimony, 7/15/09 at 11.) Hernandez then looked down and observed that Kingwood had a gun placed to Hernandez' hip. Kingwood then began leading Hernandez down the street. Hernandez feared that the assailant was attempting to steer him toward an isolated grass “alley way” so that he could shoot him. This fear prompted Hernandez to attempt to disarm the man. Hernandez grabbed at the gun and the two men wrestled for control of the weapon. The weapon was discharged, which caused both men to momentarily hesitate. When the struggle resumed, Hernandez was able to wrest the gun from his attacker's grip and began running away.

Unfortunately, Hernandez ran directly toward the other man that had been in the car, now standing behind the vehicle. That man would later be identified as appellee, James Fulmore (“Fulmore”). Hernandez passed Fulmore, but instinctively stopped when he heard a gun cocking. Turning toward the sound, Hernandez observed Fulmore, who simply smiled at him, then pointed a gun at him and fired. The projectile struck Hernandez in the stomach and, although he knew he had been struck, Hernandez began approaching the shooter. He then began feeling dizzy and fell to the ground.

The gun happened to be near Hernandez's location, and he made an effort to retrieve the gun, prompting the shooter to yell to his accomplice to kick the gun away. Kingwood kicked the gun from Hernandez and then retrieved it from the ground. Now rearmed, Kingwood stood over Hernandez, pointed his gun at him and pulled the trigger several times; however, the gun apparently jammed and did not fire. The men returned to their vehicle, and the two sped off as Hernandez's friends were running to the scene to assist.

Hernandez was subsequently taken to the Temple University Hospital where he remained hospitalized for several weeks while receiving treatment for a gunshot wound. On July 9, 2008, after Hernandez had recuperated to some degree, Detective John Harrigan visited Hernandez in the hospital and attempted to interview him regarding the shooting. (Notes of testimony, 4/30/09 at 25, 44.) Hernandez, still under medication, indicated that the first assailant was a “skinny,” dark skinned black male, 20–24 years old, 6' to 6'1?, approximately 175 to 185 pounds, clean shaven with braided hair. ( Id. at 46.) The second assailant, the man who shot Hernandez, was described simply as a “black male with a fitted hat wearing a black or blue shirt, short hair, had a P on it for Philly maybe, in blue.” ( Id. at 80.) Detective Harrigan asked Hernandez if he would be able to identify the attackers if he saw them again. Hernandez replied, “Maybe. First one who approached.” ( Id. at 79.)

On July 11, 2008, Fulmore and Kingwood were arrested for a robbery that occurred at approximately the same time of day and at approximately the same location as the Hernandez shooting. Additionally, the two men were driving a vehicle similar to that which had been described as involved in the Hernandez shooting. Believing there was a substantial likelihood that Fulmore and Kingwood were the two men that assaulted Hernandez, Detective Harrigan created two eight-photograph arrays, one of which contained the photograph of Kingwood, the other containing the photograph of Fulmore. Detective Harrigan then took the arrays to Hernandez at Temple Hospital.

Sequentially, Detective Harrigan asked Hernandez to close his eyes, think back upon the incident, look at the arrays, and “tell me which one of these photos comes to mind.” ( Id. at 58.) Hernandez would later testify that Detective Harrigan gave him one array and told him to “pick them out,” and then left the room as Hernandez looked over the array and made a selection. (Notes of testimony, 7/15/09 at 71.) Detective Harrigan then repeated the process with the second array. ( Id.) Hernandez selected an individual from each array, identifying Fulmore and Kingwood, prompting Detective Harrigan to state “Bingo. That's both the guys.” ( Id.)

Fulmore and Kingwood were subsequently arrested and charged with, inter alia, attempted murder, aggravated assault, and robbery. A preliminary hearing was held on September 22, 2008, after which the charges were bound over for trial. A motion to suppress was jointly filed on December 15, 2008, alleging, among other things, that the photo array identification and in-court identification at the preliminary hearing were unduly suggestive and thus unreliable. (Docket # D1.)

A hearing was held on April 30, 2009 as to the photo array identification. ³ On May 20, 2009, the court issued an order granting suppression of the July 19, 2008 out-of-court photo identifications of appellees. (Docket # D2.) Subsequently, on July 2, 2009, the Commonwealth indicated to the court that it was not going to file an interlocutory appeal as of right from the court's May 20, 2009 order, and the Commonwealth requested a hearing date for the “second half of the motion to suppress identification evidence”.⁴ (Notes of testimony, 7/2/09 at 5.)

On July 15, 2009, the parties appeared for a hearing on the remaining suppression issue which concerned Hernandez's in-court identification of appellees at the preliminary hearing. Hernandez testified at that time, while the testimony received on April 30, 2009 was incorporated by reference. On October 27, 2009 the court issued an order suppressing Hernandez's in-court identification of Kingwood and Fulmore. The court reasoned that the suggestiveness associated with the photo identification tainted the subsequent in-court identification and rendered it inherently unreliable.

On November 25, 2009, the Commonwealth filed a notice of appeal and herein raises two issues for our review:

I. Did the lower court err when it suppressed the victim's out-of-court identifications, where the photo arrays shown to him depicted eight men who were substantially similar in appearance, and thus were not so suggestive as to deny the defendants due process of law?

II. Did the lower court err when it suppressed the victim's in-court identifications, where there was no suggestive pre-trial identification procedure, and, in any event, he had an independent basis for his identifications?

Commonwealth's brief at 3.⁵

Initially, we must define the parameters of our appellate review. Pennsylvania Rule of Appellate Procedure 311(d) permits an appeal as of right by the Commonwealth in a criminal case from an order that does not end the entire case where the Commonwealth certifies in the notice of appeal that the order will terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d). “Such certification is required as a means of preventing frivolous appeals and appeals intended solely for delay.” Commonwealth v. Dugger, 506 Pa. 537, 547, 486 A.2d 382, 386 (1985). The Commonwealth has an absolute right to appeal to test the validity of a pretrial suppression order, where it certifies in good faith the order substantially handicaps or terminates the prosecution. Commonwealth v. Bender, 811 A.2d 1016, 1018 (Pa.Super.2002). See also Commonwealth v. Cosnek, 575 Pa. 411, 417, 836 A.2d 871, 875 (2003) (stating only prosecution can determine whether suppression substantially handicaps ability to meet constitutional burden of proving every element of offense at trial). An appeal under Pa.R.A.P. 311(d) must be filed within 30 days of the entry of the trial court order. See Commonwealth v. Williams, 893 A.2d 147 (Pa.Super.2006), appeal denied, 591 Pa. 735, 921 A.2d 497 (2007) (Commonwealth appeal of trial court's order granting defendant's motion in limine was quashed as notice of appeal pursuant to Pa.R.A.P. 311(d) was not timely filed; it was of no moment that the Commonwealth had the right to seek reconsideration of the trial court's decision beyond the 30–day appeal period, as the trial court's ruling was a final order that was immediately appealable). Here, within its timely notice of appeal from the October 27, 2009 order, the Commonwealth certified in good faith that such order granting suppression of identification will terminate or substantially handicap its prosecution of this case. Therefore, this appeal is properly before us for review.

Although the Commonwealth has filed its appeal from the October 27, 2009 order, it also contends that the court erred in suppressing the photographic identifications in its May 20, 2009 order. ( See statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), D# 4; ...