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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA

               v.


  BRANDON KULB

                    Appellant              :   No. 4055 EDA 2017
          Appeal from the Judgment of Sentence October 26, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0005518-2014

BEFORE:    SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 15, 2019

      Appellant, Brandon Kulb, appeals from the judgment of sentence
entered on October 26, 2017, in the Philadelphia County Court of Common

Pleas. We affirm.

      The record in this matter reveals that on March 20, 2014, Police Officer

Tiffany Perez was off duty, wearing street clothes, and driving her personal

vehicle on Edgemont Street in Philadelphia. N.T., 2/1/17, at 144-145.1 When




1 The certified record contains two versions of the notes of testimony from the
February 1, 2017 proceedings.        One version ("Version I") contains the
complete notes of testimony from the February 1, 2017 proceedings, including
the disposition of Appellant's motion in limine and Appellant's not -guilty plea.
Version I is labeled "Trial (with a jury)." N.T., 2/1/17, at 1. In Version I, the
trial testimony begins on page 46. The second version ("Version II") contains
only trial testimony, and it is labeled "Trial Excerpt (with a jury)."      N.T.,
2/1/17, at 1. In Version II, the trial testimony begins on page 4. Throughout
this Memorandum, we refer only to Version I.

   Retired Senior Judge assigned to the Superior Court.
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Officer Perez reached Stokley Playground near the intersection of Edgemont

and Elkhart Streets, she heard several popping sounds, and she identified

these sounds as gunshots. Id. at 145. Officer Perez saw a man cross in front

of her vehicle running away from the playground. Id. This man was pursued

by two men, and Officer Perez saw one of the men pointing a firearm at the

fleeing man.     Id. The individual brandishing and firing the gun was later
identified as Ryan DeOrio; DeOrio's companion was Appellant.          Id. at 146.
Officer Perez positively identified Appellant in court as the man who was with

DeOrio as they pursued the third man. Id. Officer Perez testified that when

she heard the gunshots, she called 911 and followed Appellant and DeOrio.

Id. On -duty officers arrived and followed DeOrio and Appellant. Id. at 93.

The on -duty officers ultimately detained DeOrio and another man; however,

when Officer Perez arrived, she informed the officers that the man

apprehended with DeOrio was not Appellant. Id. at 155, 159. Appellant was

subsequently arrested on April 11, 2014. Complaint, 4/11/14.

               On January 31, 2017,       a hearing was held regarding
        [A]ppellant's Pre -Trial Motion [in limine2] to Exclude Hearsay
        Evidence, namely the proffered testimony of Police Officer
        [James] Martin that two young boys had identified [Appellant] as
        the shooter. At this hearing, Officer Martin testified that on March
        20, 2014, he received, a radio call for a possible shooting near
        Stokley Playground. N.T. 1-31-17, p. 14. Upon arriving within a
        few blocks of the playground he saw children running from the
        area, including two boys who ran over to him while he was still in
        his police vehicle. Officer Martin testified that the boys were
        "extremely terrified." He thought they were around nine or ten


2   The trial court treated this as a motion in limine. N.T., 2/1/17, at 9.
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      years old, and one of them was crying. N.T. 1-31-17, p. 15. Officer
      Martin testified that the children told him "a male had fired a gun
      in the playground and the male's name was [Appellant]." Id. at p.
      15. He described both boys as running quickly, shaking, looking
      terrified, and one boy's eyes were red and he appeared to be
      crying. N.T. 1-31-17, pp. 29-30.

            Officer Martin testified that while he was with the boys he
      relayed over his police radio that the children had identified
      [Appellant] as the shooter. The original call that dispatched Officer
      Martin to the playground was issued at 6:37 pm on March 20,
      2017. N.T. 1-31-17, pp. 26-27. The automatic timestamp of the
      recording of Officer Martin's outgoing radio call disseminating the
      information the children had given him was ten (10) minutes later
      at 6:47 pm. N.T. 1-31-17, p. 27.

Trial Court Opinion, 8/6/18, at 3-4.

            [Appellant] was found guilty of Aggravated Assault, ...
      Conspiracy to Commit Aggravated Assault, Firearms Not to be
      Carried Without a License, and Carrying a Firearm in Public in
      Philadelphia.' These charges arose from a shooting that took place
      on March 20, 2014, at Stokley Playground, in the Port Richmond
      area of Philadelphia. Jury selection took place on January 31,
      2017, with twelve jurors and two alternates selected. On February
      1, 2017, the jury was sworn in and trial began, with the
      prosecution and defense both resting on February 2, 2017. The
      jury returned its verdict on February 6, 2017, finding [A]ppellant
      guilty of the above charges.

            ' 18 Pa.C.S.A. § 2702§§A, § [903], § 6106 §§A1, and
            § 6108[.]
                                       *    *   *


            Sentencing was deferred until October 26, 2017, at which
      time [A]ppellant was sentenced to an aggregate term of 14 to 28
      years' state confinement. A Motion for Reconsideration of
      Sentence was filed on November 2, 2017, and subsequently
      denied by this court on November 16, 2017. A timely appeal
      followed.




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Trial Court Opinion, 8/6/18, at 1-2.              Both the trial court and Appellant
complied with Pa.R.A.P. 1925.

        On     appeal,    Appellant    presents     three    issues   for    this   Court's

consideration:

        [1.] Whether the trial court erred in permitting hearsay testimony
        from witnesses, namely Police Officer James Martin, who was
        permitted to testify, and a Police Radio call with Police Officer
        Martin speaking that was played, that relayed that two
        unidentified juveniles told Officer Martin that [Appellant] had
        committed the shooting at issue, where no independent evidence
        was presented that the declarants either witnessed the incident or
        knew the [Appellant] by name?

        [2.] Whether the trial court erred in permitting Police Officer
        Tiffany Perez to make an in -court identification at trial, after ruling
        that her identification of the [Appellant] through a single photo
        was suggestive and inadmissible, and where the Officer lacked an
        independent basis to make the in -court identification nearly three
        years later?

        [3.] Whether the trial court erred in permitting irrelevant and
        unfairly prejudicial statements, as well as statements that spoke
        of [Appellant's] Fifth Amendment Right to remain silent, made by
        [Appellant] on his recorded prison phone calls, to be played for
        the jury?

Appellant's Brief at 5.

        Appellant's issues concern the admissibility of evidence. It is well settled

that the admissibility of evidence lies within the sound discretion of the trial

court    and     will    not   be   disturbed     absent    an   abuse      of   discretion.

Commonwealth v. Bidwell, 195 A.3d 610, 616 (Pa. Super. 2018). "An
abuse of discretion is not merely an error of judgment, but is rather the
overriding or misapplication of the law, or the exercise of judgment that is


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manifestly unreasonable, or the result of bias, prejudice, ill -will or partiality,

as shown by the evidence of record." Id. (citation omitted).

       In his first issue, Appellant avers the trial court erred in denying his

motion in limine to exclude hearsay and argues that the trial court erred in

applying the excited utterance exception to the prohibition on hearsay.
Specifically, Appellant asserts that there was no independent corroboration of

statements made to Officer James Martin by two juveniles who allegedly
identified Appellant as the shooter at Stokley Playground. Appellant's Brief at

12.   For this same reason, Appellant asserts that the trial court also erred in

permitting the prosecution to play a recording of the police radio call in which

Officer Martin relayed the juveniles' statements. Id. at 13-16. After review,

we conclude that no relief is due.

       Our standard of review of a denial of a motion in limine is as follows:

            When ruling on a trial court's decision to grant or deny a
       motion in limine, we apply an evidentiary abuse of discretion
       standard of review. The admission of evidence is committed to the
       sound discretion of the trial court, and a trial court's ruling
       regarding the admission of evidence will not be disturbed on
       appeal unless that ruling reflects manifest unreasonableness, or
       partiality, prejudice, bias, or ill -will, or such lack of support to be
       clearly erroneous.

Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010) (citation
omitted).    Hearsay is defined as an out -of -court statement offered for the

truth of the matter asserted, and it is generally inadmissible unless it falls
within an exception to the hearsay rule set forth in the Pennsylvania Rules of

Evidence. Commonwealth v. Manivannan, 186 A.3d 472, 482 (Pa. Super.

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2018) (citing Commonwealth v. Mosley, 114 A.3d 1072, 1084 (Pa. Super.

2015); Pa.R.E. 801 and 802).        Here, the trial court concluded that the
statements made by the juveniles were admissible under the excited utterance

exception. Trial Court Opinion, 8/6/18, at 5. "[A]n excited utterance is [a]

statement relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition."
Commonwealth v. Mollett, 5 A.3d 291, 310 (Pa. Super. 2010) (citing
Pa.R.E. Rule 803(2)). "When the declarant is unidentified, the proponent shall

show by independent corroborating evidence that the declarant actually
perceived the startling event or condition." Pa.R.E. Rule 803(2).

      As noted, Appellant is challenging the admissibility and use of the
juveniles' statement to Officer Martin.       Officer Martin testified that within

minutes of the reports of a shooting at the playground, he encountered two

juveniles who were crying. N.T., 1/31/17, at 15. Officer Martin relayed the

juveniles' statements over the police radio stating that the juveniles identified

Appellant by name and asserted that Appellant was the shooter. Id.

      The trial court concluded that the juveniles' statements to Officer Martin

were made close in time to the shooting at the playground and under the

stress of immediately experiencing the shooting. Trial Court Opinion, 8/6/18,

at 5-6 (citing N.T., 2/1/17, at 5-9). Based on the record before us, we discern

no abuse of discretion in this regard.




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         However, Appellant focuses on the second requirement of the excited

utterance exception when the declarant         is   unavailable to testify: the

corroboration component from Pa.R.E. 803(2).           Appellant's Brief at 13.
Appellant avers that there was no corroboration, and, therefore, the trial court

abused its discretion in allowing Officer Martin to testify relative to what the

juveniles said. After careful review, we disagree.

         Our scope of review of orders granting or denying motions to suppress

is limited to the evidence presented at the suppression hearing. In re L.1.,

79 A.3d 1073, 1085 (Pa. 2013). We point out that although Appellant filed a

motion to suppress Officer Perez's identification of Appellant, we are not now

reviewing the ruling on the suppression motion; we are reviewing an order

disposing of a pretrial motion in limine concerning hearsay. A motion in limine

differs from a suppression motion in that a suppression motion is filed in an

effort to preclude evidence allegedly obtained in violation of a defendant's

constitutional rights, while a motion in limine is filed in an effort to preclude

evidence that was constitutionally obtained but is prejudicial to the moving

party.     Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011).
Appellant's motion to suppress was based on an alleged due process violation.

Motion to Suppress, 1/5/17. The issue currently under review is the ruling on

Appellant's motion in limine to preclude hearsay that was premised on a
violation of the Pennsylvania Rules of Evidence. N.T., 1/31/17, at 9.




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        Prior to trial, the trial court held a hearing on January 30, 2017, to
address     Appellant's   suppression    motion   concerning   Officer   Perez's

identification of Appellant. The next day, January 31, 2017, the trial court
held a hearing on Appellant's motion in limine regarding the use of statements

made by the unidentified juveniles to Officer Martin.      As noted above, in

reviewing a ruling on a motion to suppress, we are limited to the record in the

suppression court. L.1., 79 A.3d at 1085. Here, however, we are reviewing

an evidentiary ruling on a motion in limine, and we discern no such limitation.

We conclude that in ruling on the motion in limine, the trial court was
permitted to consider the entire record, including the suppression hearing.

        There was ample corroboration for the juveniles' statements in the
record.    At the time of the hearing on the motion in limine, the trial court
already had heard Officer Perez's suppression -hearing testimony concerning

her identification of Appellant as the shooter.     Officer Perez's statements

corroborated the juveniles' statements in that she heard gunshots, observed

people fleeing the playground, witnessed DeOrio holding a gun, saw Appellant

with DeOrio, and watched as DeOrio and Appellant followed a man from the

area.     N.T., 2/1/17, at 144-159.3 Accordingly, we conclude there was no


3 The motion in limine was held prior to the introduction of evidence at trial.
Thus, the grand jury testimony had not yet been admitted at the time of the
hearing on Appellant's motion in limine. Nevertheless, the grand jury
testimony provided additional independent corroboration for the juveniles'
statements, and it could have been proffered if the trial court concluded that


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abuse of discretion     in        the trial court's conclusion that the juveniles'

identification of Appellant was an excited utterance and was admitted and

utilized properly through Officer Martin's testimony and police radio call as an

exception to the prohibition on hearsay.

      In his second issue on appeal, Appellant asserts that the trial court
abused its discretion        in    permitting Officer Perez to make an in -court

identification of him at trial because her prior out -of -court identification was

inadmissible. Appellant's Brief at 16. After review, we conclude that no relief

is due.

      Appellant filed an omnibus pretrial motion including a motion to

suppress Officer Perez's identification of Appellant.         Motion, 8/26/15, at
unnumbered 2. At the January 30, 2017 hearing on Appellant's motion, it was

revealed that on the day of the shooting, March 20, 2014, when off -duty
Officer Perez followed Appellant and DeOrio, responding officers showed




Officer Perez's statements were not sufficient independent corroboration.
Specifically, in his testimony before the grand jury, the victim identified
Appellant as the man who shot him. N.T., Grand Jury Testimony, 5/9/14, at
6. The victim referred to Appellant as "B -Dot," and Detective Kenneth Rossiter
testified that Appellant's alias is B -Dot. Id. at 24. The grand jury transcript
was marked as Commonwealth's Exhibit C-20 and admitted without objection.
N.T., 2/2/17, at 227-229. We point out that despite his testimony before the
grand jury, the victim, while admitting that he was shot on March 20, 2014,
at Stokley playground, refused to identify Appellant as the shooter in court.
N.T., 2/1/17 at 83-128. However, in addition to his grand jury testimony, the
victim's pretrial interview, Commonwealth's Exhibit C-6, in which the victim
identified Appellant as the shooter, was admitted into evidence as well. N.T.,
2/2/17, at 227-229.
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Officer Perez a photograph of Appellant on a computer in a police vehicle. N.T.,

1/30/17, at 13-16. This was not an array of pictures; it was a single image

of Appellant, and Officer Perez identified Appellant as one of the conspirators.

Id. at 24.     Appellant moved the trial court to suppress Officer Perez's
identification of Appellant from the photograph and asked the court to prohibit

Officer Perez from identifying Appellant in court. Id. at 37. The next day, the

trial court granted Appellant's motion regarding Officer Perez's out -of -court

identification of Appellant in the photograph concluding the single image was

overly suggestive. N.T., 1/31/17, at 6; Order, 1/31/17. However, the trial

court denied the motion with respect to Officer Perez making an in -court
identification. Id.; Order, 1/31/17.

      When addressing an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

      Our standard of review in addressing a challenge to a trial court's
      denial of a suppression motion is whether the factual findings are
      supported by the record and whether the legal conclusions drawn
      from those facts are correct. When reviewing the ruling of a
      suppression court, we must consider only the evidence of the
      prosecution and so much of the evidence of the defense as
      remains uncontradicted when read in the context of the record....
      Where the record supports the findings of the suppression court,
      we are bound by those facts and may reverse only if the legal
      conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations
omitted). Further, "[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 testimony." Commonwealth v. Gallagher, 896 A.2d 583, 585 (Pa.

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Super. 2006). We reiterate that our scope of review is limited to the evidence

presented at the suppression hearing. L..7., 79 A.3d at 1085.

      A prior identification by a witness, which is suppressed due to its
suggestive     nature,    does   not   preclude   a   later   in -court   identification.

Commonwealth v. James, 486 A.2d 376, 380 (Pa. 1985). A subsequent
identification may be permitted when there is an independent basis for the

identification. Id.      In determining whether an independent basis exists, we

consider the following factors:

             the opportunity of the witness to view the criminal at
             the time of the crime, the witness' degree of attention,
             the accuracy of the witness' prior description of the
             criminal, the level of certainty demonstrated by the
             witness at the confrontation, and the length of time
             between the crime and the confrontation.

Id. (quoting Commonwealth v. Slaughter, 394 A.2d 453, 457 (Pa. 1978);
see also Niel v. Biggers, 409 U.S. 188 (1972)).

      The trial court concluded that there was an independent basis for Officer

Perez's in -court identification. The trial court reached this conclusion based

on Officer Perez's ability to observe Appellant at the scene of the shooting,

her background as a police officer, her description of Appellant, and the fact

that there was no misidentification. Trial Court Opinion, 8/6/18, at 13 (citing

N.T., 1/31/17, at 5-7). Moreover, Officer Perez correctly recognized that when

DeOrio was apprehended, the individual with him was not Appellant. N.T.,

2/1/17, at 155, 159.        Considering our scope and standard of review, we
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discern no basis upon which to disturb the trial court's decision on Appellant's

suppression motion.

      Finally, Appellant avers that the trial court abused its discretion in
allowing the jury to hear unfairly prejudicial statements that allegedly
infringed on Appellant's Fifth Amendment right to remain silent.            These

recordings were made during Appellant's phone calls while incarcerated.

Appellant's argument on this issue is vague and undeveloped. It is a general

claim assailing the use at trial of recorded prison telephone conversations and

averment that these recordings violated Appellant's rights under the Fifth

Amendment. Appellant's Brief at 18-19. The trial court addressed this issue

as follows:

            Appellant's Fifth Amendment argument is wholly without
      merit. It is well -established law that recorded prison phone calls
      may be used as evidence for the investigation or prosecution of
      any crime, pursuant to [18 Pa.C.S. § 5704 (14)(i)(A) and (C)] of
      the Wiretap Act, which states:

         It shall not be unlawful and no prior court approval shall be
         required under this chapter for:

         (i) The county correctional facility shall adhere to the
         following procedures and restrictions when intercepting,
         recording, monitoring or divulging an oral communication,
         electronic communication or wire communication from or to
         an inmate in a county correctional facility as provided for by
         this paragraph:

              (A) Before the implementation of this paragraph, all
              inmates of the facility shall be notified in writing that,
              as of the effective date of this paragraph, their oral
              communications, electronic communications or wire
              communications may         be      intercepted,   recorded,
              monitored or divulged.

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              (C) The contents of an intercepted and recorded oral
              communication, electronic communication or wire
              communication shall be divulged only as is necessary
              to safeguard the orderly operation of the facility, in
              response to a court order or in the prosecution or
              investigation of any crime.

     [18 Pa.C.S. § 5704 (14)(i)(A) and (C)].

              Every time an inmate makes a telephone call from a
     Philadelphia County correctional facility, an automated message
     at the beginning of the call notifies both the inmate and the call
     recipient that, "You have a global link prepaid call from [caller's
     name], an inmate at the Philadelphia prison system. The use of
     three-way or call waiting will disconnect the call. This call will be
     recorded and monitored...[.]" (emphasis added). Prison Call
     Trans. 4-12-14, p. 1. This message provides the inmate with
     actual notice that the phone call is being recorded, which the
     Pennsylvania Supreme Court deemed sufficient in lieu of written
     notice required by §5704(14)(i)(A) of the statute above            in
     Commonwealth v. Baumhammers, 960 A.2d 59 (2008). There,
     the defendant contended that "it was irrelevant that he was under
     actual notice that his telephone conversation was being
     intercepted and recorded, when the statute required that he
     receive prior written notice." Id. at 78. However, the court held,

        ...there is no basis to conclude that the privacy rights of
        [Baumhammers] or his parents were infringed when their
        March 2, 2001 telephone conversation was recorded. These
        individuals were actually aware that their telephone
        conversation was being or could be intercepted and
        recorded by prison authorities. Written notice to
        [Baumhammers], assuming he never received any, would
        not have afforded him any greater protection of his right to
        privacy or that of his parents than the actual notice they
        possessed at the time of the conversation. Therefore, on this
        basis alone, [Baumhammers's] argument is wholly without
        merit.

     Id. at 79.


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           Additionally, citing § 5704(14)(i)(C) of the Wiretap Act, the
      court in Baumhammers held "there is no basis for
      [Baumhammers's]        supplemental    argument that       Section
      5704(14)(i)(C) of the Wiretap Act was violated when the contents
      of the telephone conversation at issue were divulged to an
      investigating detective and to the Commonwealth's psychiatric
      expert" because it specifically allows the contents of a recorded
      prison telephone call to be used in the prosecution or investigation
      of any crime. Id.

            Therefore, [A]ppellant's argument that his Fifth Amendment
      rights were violated is without merit and this portion of the
      recorded prison telephone call was properly admitted into
      evidence and played for the jury.

Trial Court Opinion, 8/6/18, at 8-10.

      We agree with the trial court. Here, Appellant had actual notice that his

telephone conversations made while incarcerated would be recorded and could

be used in the prosecution.      Thus, any expectation of privacy or Fifth
Amendment protection from self-incrimination was waived when Appellant

chose to engage in recorded conversations while in prison.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant's judgment of sentence.

      Judgment of sentence affirmed.

      Judge Strassburger joins this Memorandum.

      Judge Nichols concurs in the result.




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Judgment Entered.




Jseph D. Seletyn,
Prothonotary


Date: 7/15/19




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