Commonwealth v. Jaynes

135 A.3d 606

2016 PA Super 55

COMMONWEALTH of Pennsylvania, Appellee.

v.Tarohn JAYNES, Appellant.

No. 2658 EDA 2014

Superior Court of Pennsylvania.

Argued Jan. 26, 2016.

Filed March 1, 2016.

Todd M. Mosser, Philadelphia, for appellant.

Michael L. Erlich, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County following Appellant's conviction on the charges of robbery, possessing an instrument of crime, and person not to possess a firearm.¹ Appellant contends (1) the trial court erred in failing to suppress the victim's in-and-out-of-court identifications of Appellant as the perpetrator; (2) the trial court erred in limiting defense counsel's cross-examination of Detective Frank Mullen as it pertains to the police's normal protocols for conducting a photo array; and (3) the trial court erred in failing to declare a mistrial due to a statement made by the prosecutor in closing argument that constituted prosecutorial misconduct. We affirm.

The relevant facts and procedural history are as follows: On October 15, 2011, at 9:00 p.m., Nathaniel Harley was sitting in his vehicle when an unmasked man entered, sat in the front passenger seat, pointed a gun at him, and rummaged through his pockets, removing two cell phones and cash. Mr. Harley drove to a nearby police cruiser, and once he was inside of the cruiser, he viewed a photo of Appellant on the cruiser's computer screen, which happened to be there as a result of an unrelated matter, and identified the person on the screen as his assailant. At the police station, Mr. Harley identified Appellant from a photo array. Appellant was arrested in connection with the robbery, and he proceeded to a jury trial on various charges. On December 9, 2013, after the jury was unable to reach a verdict on all charges, the trial court declared a mistrial.

The Commonwealth provided notice of its intent to retry the case, and on January 24, 2014, Appellant's counsel filed a motion to suppress all potential witnesses' in-and-out-of-court identifications of Appellant as the perpetrator. Specifically, Appellant alleged the police's out-of-court photo identification procedures were unduly suggestive and there was no independent basis for an in-court identification. On February 11, 2014, the matter proceeded to a hearing, and the trial court denied the motion.

During Appellant's second jury trial, Mr. Harley identified Appellant as the perpetrator of the robbery, and on February 19, 2014, the jury convicted Appellant of the charges indicated supra. On April 17, 2014, the trial court sentenced him to an aggregate of seventeen years to thirty-five years in prison, and on April 23, 2014, Appellant filed a timely post-sentence motion, which was denied by operation of law on August 22, 2014. On September 2, 2014, Appellant filed a counseled notice of appeal, and all Pa.R.A.P.1925 requirements have been met.

Appellant's first contention is the trial court erred in failing to suppress Mr. Harley's in-and-out-of-court identifications of Appellant as the perpetrator. Specifically, Appellant alleges Mr. Harley's initial out-of-court identification of him was based on an unduly suggestive police display of a single photo, and therefore, Mr. Harley's subsequent out-of-court identification based on a photo array, as well as his in-court identification, were improperly tainted. In this vein, Appellant argues “[t]he demonstration of one picture, immediately after the crime was committed, in the context of an excited and adrenalized report from the victim of a robbery, is clearly fraught with the potential for misidentification.” Appellant's Brief at 11.

Initially, we note “[o]ur standard of review in addressing a challenge to a trial court's denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.” Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa.Super.2014) (quotation and quotation marks omitted).

[W]e may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26–27 (Pa.Super.2008) (en banc ) (citations, quotations, and quotation marks omitted). Moreover, it is within the lower court's province to pass on the credibility of witnesses and determine the weight to be given to their testimony. See Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.Super.2013).

When determining the admissibility of identification testimony, this Court has held that 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. A pretrial identification will not be suppressed as violative of due process rights unless the facts demonstrate that the identification procedure was so infected by suggestiveness as to give rise to a substantial likelihood of irreparable misidentification.

Due process does not require that every pretrial identification of witnesses must be conducted under laboratory conditions of an approved lineup. “In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable.” Commonwealth v. Armstrong, 74 A.3d 228, 238 (Pa.Super.2013) (citation omitted).

Additionally, “the purpose of a suppression order regarding exclusion of identification evidence is to prevent improper police action. Thus, where a defendant does not show that improper police conduct resulted in a suggestive identification, suppression is not warranted. ” Commonwealth v. Sanders, 42 A.3d 325, 330–31 (Pa.Super.2012) [.]

Commonwealth v. Lark, 91 A.3d 165, 168–69 (Pa.Super.2014) (quotations and quotation marks omitted) (emphasis in original).

Here, as it relates to the police's initial display of Appellant's photo to Mr. Harley, the trial court made the following factual findings:²

Officer Daniel Kostick testified that on the evening of October 15, 2011[,] he was on routine patrol with his partner in a marked police cruiser in the vicinity of 62nd and Arch Streets in the City of Philadelphia. At approximately 9:09 p.m. ... the complainant, Nathaniel Harley, pulled alongside and reported that he had just been robbed. He instructed Mr. Harley to park his car and get into the police vehicle in order to look for the assailant.

Officer Kostick also testified that when Mr. Harley got into the cruiser he had a picture displayed on his computer screen of a black male, identified as [Appellant], whom he was investigating from the prior evening. On seeing the picture[,] Mr. Harley immediately recognized [Appellant] as his assailant. Realizing that he had forgotten to close the picture in the excitement of the moment, Officer Kostick immediately removed it from view. Officer Kostick explained that on the previous evening he had been on patrol without his partner and had observed [Appellant] acting in a suspicious manner. He was showing the picture to his partner in order for him to be on the lookout for him. He testified that it was not his intention for Mr. Harley to see the photograph on his computer screen.

Philadelphia Police Detective Frank Mullen testified that on the evening of October 15, 2011, he was the detective assigned to investigate the robbery of Mr. Harley. Prior to interviewing Mr. Harley, he interviewed Officer Kostick who told him that he had [Appellant's] picture on the screen when Mr. Harley got into his vehicle and “saw [Appellant's] photo on the computer....”

In an abundance of caution and in an effort to further verify Mr. Harley's identification, Detective Mullen prepared a photo array of eight photographs, including [Appellant's]. Prior to being interviewed by Detective Mullen, Mr. Harley viewed the array and immediately identified [Appellant] as his assailant. When he was asked how sure he was of his identification, Mr. Harley replied: “Positive, 100 percent.” Mr. Harley also told Detective Mullen that, “[w]hile I was in the car, they had a picture of the guy on their computer already. I told them that it was the guy that robbed me.”

In addition to identifying [Appellant] from the photo array, Detective Mullen testified that Mr. Harley told him that he recognized [Appellant] from the neighborhood. He explained that, although he didn't know [Appellant's] name and hadn't seen him for quite some time, he had grown up on the same street, a block away from [Appellant]. This was corroborated by Mr. Harley [at trial].

Trial Court Opinion, filed 3/3/15, at 9–11 (citations to record omitted).

Based on these factual findings, the trial court denied Appellant's motion to suppress, noting “Detective Mullen's testimony corroborated that of Officer Kostick that the display of [Appellant's] picture on the computer screen was accidental and unintentional and did not constitute an improper photo array.” Id. at 11. We conclude the trial court did not err in this regard.

Appellant did not demonstrate that improper police conduct occurred during his initial out-of-court identification of Appellant. Rather, as the trial court found, Mr. Harley's viewing of Appellant's photo on the police cruiser's computer screen was inadvertent and not an attempt to utilize a suggestive single photo identification procedure. Rather, Mr. Harley's viewing of the photo was more akin to a spontaneous identification of a suspect, which is not violative of due process. See Commonwealth v. Wilcox , 481 Pa. 284, 392 A.2d 1294, 1297 (197...