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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-A26017-19


       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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J-A26017-19



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.



                                      -6-
J-A26017-19


                                         ...

            [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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J-A26017-19



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


                                      - 11 -
J-A26017-19


        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,




                                    - 12 -
J-A26017-19



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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