J-S51032-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

JOSEPH VALEK,

                            Appellee                   No. 1709 EDA 2014


                       Appeal from the Order May 2, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0007747-2013


BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED SEPTEMBER 15, 2015

        The Commonwealth appeals from the order of May 2, 2014, which

denied reconsideration of the trial court’s grant of the motion of Appellee,

Joseph Valek, to suppress the identification testimony of the victim, William

Hurley.1 After review, we are constrained to reverse and remand.




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The Commonwealth may take an appeal of right from an order that does
not end the entire case if it certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d);
see also Commonwealth v. Torres, 764 A.2d 532, 536 n.2 (Pa. 2001).
The Commonwealth has included such a certification in this case.
J-S51032-15


      We take the underlying facts and procedural history in this matter

from the June 13, 2013 and February 10, 2014 notes of testimony, and our

independent review of the certified record.

      On May 8, 2013, at approximately 4:55 p.m., the victim was walking

near the intersection of Rosehill Street and Indiana Avenues in Philadelphia,

when he observed Appellee, whom he knew from the neighborhood. (See

N.T. Preliminary Hearing, 6/13/13, at 4-5, 9-10; N.T. Suppression Hearing,

2/10/14, at 8-10).       Appellee called out to him and, when the victim

approached him, Appellee stabbed him in the knee and the chest and stole

$20.00 from him.       (See N.T. Preliminary Hearing, 6/13/13, at 5-6; N.T.

Suppression Hearing, 2/10/14, at 8-11).

      When police responded to the scene, the victim described the

perpetrator as a balding, bearded white man, in his thirties, with some

weight on him. (See N.T. Suppression Hearing, 2/10/14, at 11-12, 40). An

ambulance transported the victim to Temple University Hospital, where he

remained in intensive care for approximately one week, because of his

serious lung injury.    (See N.T. Preliminary Hearing, 6/13/13, at 6-8; N.T.

Suppression Hearing, 2/10/14, at 10-12).

      Four days later, Philadelphia Police Detective Danielle Slobodian visited

the victim and showed him a series of photographs of people who matched

the description he had previously given to the police. (See N.T. Suppression

Hearing, 2/10/14, at 12-13, 43-45).        Appellee was not in any of the


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photographs and the victim told the detective that none of the men in the

pictures was the person who attacked him. (See id. at 12-15; 44-47).

       Philadelphia Police Officer Jerry Rahill, who had contacts in the

neighborhood where the crime took place, assisted Detective Slobodian in

the investigation. (See id. at 47, 70). Officer Rahill’s inquiries ultimately

led him to Appellee and one other individual who matched the description of

the perpetrator. (See id. at 16, 70-71). On May 25, 2014, Officer Rahill

took candid photographs of both possible suspects, and detained the other

individual, transporting him to the victim’s location.   (See id. 16, 70-71).

When asked, the victim stated that the other individual was not the

perpetrator; Officer Rahill flipped through the photographs on his cell phone,

and the victim identified Appellee as the attacker. (See id. at 16-17, 71-

72).   Officer Rahill then detained Appellee and transported him to the

homeless shelter where the victim was staying; he identified Appellee as his

attacker. (See id. at 19, 71-72). Subsequently, Officer Rahill purchased a

new cell phone and, therefore, he no longer possesses the photograph in

question. (See id. at 72).

       On September 24, 2013, Appellee filed a motion seeking to suppress

the identification.   The trial court held a hearing on Appellee’s motion on

February 10, 2014, at which time the Commonwealth entered the testimony

from the June 13, 2013 preliminary hearing into evidence. On April 2, 2014,

the trial court granted the motion to suppress. The Commonwealth filed a


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motion for reconsideration.       Subsequently, the trial court denied that

motion.      The instant, timely appeal followed.         On June 2, 2014, the

Commonwealth filed a statement of errors complained of on appeal.                See

Pa.R.A.P. 1925(b). On January 16, 2015, the trial court issued an opinion.

See Pa.R.A.P. 1925(a).

       On appeal, the Commonwealth raises one question for our review:

              Where the robbery-stabbing victim, who had seen and
       interacted with [Appellee] on other occasions before the crime,
       was shown a single cellphone photo of [Appellee]—whom he also
       saw during the crime and accurately described to police—did the
       [trial] court err in suppressing the identification evidence?

(Commonwealth’s Brief, at 1).

       The Commonwealth challenges the trial court’s grant of Appellee’s

motion to suppress, arguing that the trial court erred in suppressing the

victim’s out-of-court identification of Appellee. (See id. at 9-19). When the

Commonwealth appeals from a suppression order, this Court follows a

clearly defined scope and standard of review: we consider only the evidence

from   the    defendant’s   witnesses   together   with    the   evidence   of   the

prosecution that, when read in the context of the entire record, remains

uncontradicted.    See Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.

Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008).             This Court must

first determine whether the record supports the factual findings of the

suppression court and then determine the reasonableness of the inferences

and legal conclusions drawn from those findings. See id. Here, because our


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review of the record demonstrates that the inferences and legal conclusions

that the trial court drew were not reasonable or legally correct, we are

constrained to reverse.

        In its opinion, the trial court identified five bases for its suppression of

the out-of-court identification. (See Trial Court Opinion, 1/16/15, at 1-14).

Firstly, the trial court held that the identification procedure violated

established internal police directives. (See id. at 5-6). Secondly, the court

found that the use of a single photograph to identify the perpetrator is per

se improperly suggestive.           (See id. at 6-9).       Thirdly, the trial court

maintained that the failure of the police to preserve the single photograph

violated Appellee’s due process rights. (See id. at 9-10). Fourthly, the trial

court determined that the failure to preserve the photograph violated Brady

v. Maryland, 373 U.S. 83 (1963).               (See id. at 10-13).   Lastly, the trial

court concluded that the failure to disclose the photograph to Appellee

violated Pa.R.Crim.P. 573(B)(1)(f).2 (See id. at 13). These conclusions are

not legally correct.

____________________________________________


2
    Rule 573 provides in relevant part:

        (B) Disclosure by the Commonwealth.

        (1) Mandatory. In all court cases, on request by the defendant,
        and subject to any protective order which the Commonwealth
        might obtain under this rule, the Commonwealth shall disclose to
        the defendant’s attorney all of the following requested items or
        information, provided they are material to the instant case. The
(Footnote Continued Next Page)


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             This Court has stated:

            [w]hether an out of court identification is to be suppressed
      as unreliable, and therefore violative of due process, is
      determined      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. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011), appeal

denied, 34 A.3d 827 (Pa. 2011) (citations and quotation marks omitted).

The courts review the propriety of a challenged identification to determine

whether, under the circumstances, the identification was reliable.         See

Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa. Super. 2014), appeal

denied, 101 A.3d 102 (Pa. 2014).

      Suggestiveness in the identification process is but one factor to
      be considered in determining the admissibility of such evidence
      and will not warrant exclusion absent other factors. As this
      Court has explained, the following factors are to be considered in
      determining the propriety of admitting identification evidence:
      the opportunity of the witness to view the perpetrator at the
                       _______________________
(Footnote Continued)

      Commonwealth shall, when applicable, permit the defendant’s
      attorney to inspect and copy or photograph such items.

                                        *        *   *

          (f)  any    tangible    objects,    including    documents,
          photographs, fingerprints, or other tangible evidence . . . .

Pa.R.Crim.P. 573(B)(1)(f).




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      time of the crime, the witness’ degree of attention, the accuracy
      of his prior description of the perpetrator, the level of certainty
      demonstrated at the confrontation, and the time between the
      crime and confrontation. The corrupting effect of the suggestive
      identification, if any, must be weighed against these factors.

Id. (citation omitted).

      Here, the trial court found that the May 12, 2013 procedure, wherein

Detective Slobodian showed the victim a number of photographs, which did

not include a photograph of Appellee, and the victim did not make

identification, violated certain internal Philadelphia police directives.      (See

Trial Ct. Op., 1/16/15, at 5-6).          It also held that the May 25, 2013

procedure, wherein the victim identified a photograph of Appellee while

flipping   through   Officer   Rahill’s   cell   phone,   violated   other   internal

Philadelphia Police Directives. (See id.). Therefore, it suppressed the out-

of-court identification.   (See id.).     However, the breach of internal police

directives is not, absent a constitutional or statutory violation, a proper basis

for suppression of evidence. See Commonwealth v. Spangler, 809 A.2d

234, 240-41 (Pa. 2002) (explaining that “judicial enforcement of a regulation

or policy governing the conduct of a criminal investigation” is inappropriate

unless “compliance is mandated either by a statute or as a matter of

constitutional compliance[.]”) (citation omitted); see also United States v.

Caceres, 440 U.S. 741, 749-50 (1979) (failure of Internal Revenue Service

agent to follow agency regulations concerning electronic surveillance did not




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require suppression of recordings because violation of regulations was not of

constitutional significance).

      Here, the violation on May 12, 2013 regarding the number of

photographs an officer should use in a photo array is both irrelevant,

because that procedure did not result in the identification of a suspect, and

is not of constitutional dimensions.     (See Trial Ct. Op., at 5-6).   The trial

court does not point to, and we cannot find any case where our courts have

held that the police are required to use a specific number of photographs to

make a photo array constitutional. Further, the trial court does not cite to

any statutory violation.        The violation in the May 25, 2013 procedure

concerned the failure of Officer Rahill to obtain permission of the police

commissioner before taking a candid photograph of Appellee.         (See id. at

6). Again, we see nothing that raises this violation of procedure to one of

constitutional or statutory dimensions.      Therefore, the trial court erred in

suppressing the out-of-court identification on this basis.       See Spangler,

supra at 240-41; see also Caceres, supra at 749-50.

      The trial court next suppressed the out-of-court identification because

the use of a single photograph to identify Appellee was per se impermissibly

suggestive. (See Trial Ct. Op., 1/16/15, at 7-8). We disagree.

      Our Supreme Court has held that “[w]hile the use by police of a single

photograph of a suspect in securing identification by a witness can

constitute    an    improperly       suggestive     procedure,     Manson     v.


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Brathwaite, 432 U.S. 98 . . . (1977), the reliability of a challenged

identification is to be judged under a test employing the totality of the

circumstances.”    Commonwealth v. Buehl, 508 A.2d 1167, 1178 (Pa.

1986), cert. denied, 488 U.S. 871 (1988) (some quotation marks omitted)

(emphasis added).      Here, our review of the record demonstrates that, under

the totality of the circumstances, the identification procedure was not

improperly suggestive.

      The record reflects that the victim had previously seen Appellee

around the neighborhood and would exchange greetings with him.              (See

N.T. Preliminary Hearing, 6/13/13, at 4-5, 9-10; N.T. Suppression Hearing,

2/10/14, at 8-10).      The victim was able to observe Appellee for nearly

twenty seconds during the crime itself, which took place during the day.

(See N.T. Suppression Hearing, 2/10/14, at 24).             Further, the victim

accurately described Appellee to the police. (See id. at 12, 40). Moreover,

the victim did not identify a suspect on May 12, when Detective Slobodian

showed him pictures of other potential suspects; did not identify the other

potential suspect that Officer Rahill showed him on May 25; the victim only

identified Appellee.   (See id. at 15-16, 44-47, 71).      The victim identified

Appellee less than two weeks after the incident. (See id. at 9, 13).

      There is nothing in this record that demonstrates that the procedure

was unduly suggestive.      (See id. at 15-16, 71).    There was no testimony

that Officer Rahill did anything to influence the victim’s identification; rather,


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the record demonstrates that the victim spontaneously identified Appellee as

the perpetrator while flipping through the photographs on Officer Rahill’s cell

phone. (See id. at 15-16, 71).

      Thus, the law does not support the trial court’s conclusion that the

showing of a single photograph renders identification of a suspect per se

unduly suggestive. See Buehl, supra at 1178; see also Commonwealth

v. Jones, 426 A.2d 1167, 1170-71 (Pa. Super. 1981). Further, the record

does not support the trial court’s inferences, (see Trial Ct. Op., at 8-9), that

the circumstances rendered the identification unduly suggestive.           See

Commonwealth v. Bradford, 451 A.2d 1035, 1037 (Pa. Super. 1982)

(holding identification of defendant admissible where victim saw defendant’s

face for 3-4 seconds during a robbery, and stating “[w]henever the victim of

a crime has an opportunity to observe the criminal, the impression of the

face of an assailant is etched upon the prey by the terror of the occasion.”);

Commonwealth v. Rose, 401 A.2d 1148, 1155 (Pa. Super. 1979) (holding

reliability of identification outweighed any suggestiveness of procedure

where victim had opportunity to view defendant for ten seconds). Thus, the

trial court erred in holding that the suggestiveness in the use of a single

photograph outweighed the reliability of the victim’s identification.      See

Kearney, supra at 65; Fulmore, supra at 346.

      Next, relying on this Court’s decision in Commonwealth v. Jackson,

323 A.2d 799, 804 (Pa. Super. 1974), the trial court found that Officer


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Rahill’s failure to preserve the photograph violated Appellee’s due process

rights. (See Trial Ct. Op., at 9-10). We find this reliance to be misplaced.

          In Jackson, this Court did not base the finding of a due process

violation solely on the fact that the police failed to preserve any of the

photographs used in a photo array but also on the facts that the victim

observed the defendant for less than one second during the crime and was

unable to recollect the identification procedures.    See Jackson, supra at

804. Moreover, in a subsequent decision, this Court limited the holding in

Jackson to cases where the identification procedure took place after the

defendant was in custody, this is not at issue in the instant matter.     See

Commonwealth v. Patterson, 572 A.2d 1258, 1267 (Pa. Super. 1990),

appeal denied, 592 A.2d 1299 (Pa. 1991). Lastly, even if Jackson applied

to cases where the defendant was not in custody, it would not apply in the

instant matter. While Officer Rahill did not preserve the single photograph

of Appellee, Detective Slobodian did preserve the initial photo array, (see

N.T. Suppression Hearing, 2/10/14, at 52-56), there is no evidence that the

police assisted the victim in making the identification, and Officer Rahill was

able to describe the circumstances of taking the picture and the picture

itself.     (See id. at 71-73).    In these circumstances, this Court has

distinguished     Jackson   and   declined   to   suppress   evidence.    See

Commonwealth v. Harris, 533 A.2d 727, 730 (Pa. Super. 1987), appeal

denied, 549 A.2d 914 (Pa. 1988) (distinguishing Jackson where police


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preserved some of photo array, did not help witness make identification, and

witness    identified   defendant’s      photograph   without      hesitation);

Commonwealth v. Cooper, 482 A.2d 1014, 1017 (Pa. Super. 1984)

(distinguishing Jackson where witness observed defendant for twenty

minutes and detective described missing picture). Thus, the trial court erred

in concluding that Jackson mandated suppression of the out-of-court

identification. See Patterson, supra at 1267.

     The trial court also suppressed the out-of-court identification on the

basis that the failure to preserve the photograph constituted a Brady

violation. (See Trial Ct. Op., at 10-13). This Court has explained:

            [i]n Brady, the United States Supreme Court held: “[T]he
     suppression by the prosecution of evidence favorable to an
     accused upon request violates due process where the evidence is
     material either to guilt or to punishment, irrespective of the good
     faith or bad faith of the prosecution.” Brady, supra at 87. . . .
     In sum, there are three necessary components to demonstrate a
     Brady violation: “[t]he evidence at issue must be favorable to
     the accused, either because it is exculpatory, or because it is
     impeaching; that evidence must have been suppressed by the
     State, either willfully or inadvertently; and prejudice must have
     ensued.”     Commonwealth v. Causey, 833 A.2d 165, 170
     (Pa.Super. 2003), appeal denied, 577 Pa. 732, 848 A.2d 927
     (2004).

                 [E]vidence is material if there is a reasonable
           probability that, had the evidence been disclosed to
           the defense, the result of the proceeding would have
           been different.     The question is whether the
           favorable evidence could reasonably be taken to put
           the whole case in such a different light as to
           undermine confidence in the verdict. As Brady and
           its progeny dictate, when the failure of the
           prosecution to produce material evidence raises a
           reasonable probability that the result of the trial

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            would have been different if the evidence had been
            produced, due process has been violated and a new
            trial is warranted.    Id. (internal citations and
            quotation marks omitted).

Commonwealth v. Harris, 884 A.2d 920, 932 (Pa. Super. 2005), appeal

denied, 928 A.2d 1289 (Pa. 2007) (citation omitted).         It is Appellant’s

burden to show the Commonwealth suppressed or withheld the evidence.

See Commonwealth v. Spotz, 18 A.3d 244, 276 (Pa. 2011).

      Here, the trial court found “the photograph in the instant matter was

favorable to the accused because it is exculpatory and can be used for

impeachment purposes.”      (Trial Ct. Op., at 11).   This factual finding is

completely without evidentiary support.        Officer Rahill described the

photograph as being of Appellee’s face taken at a distance from one-two feet

away, in the area where the incident occurred.        (See N.T. Suppression

Hearing, 2/10/14, at 71-73). The record reflects that, while flipping through

Officer Rahill’s cell phone, the victim immediately identified the photograph

of Appellee as his assailant. (See id. at 16, 72). We fail to see how there is

anything in the photograph that could remotely be considered exculpatory

and/or usable for impeachment purposes.

      In Illinois v. Fischer, 540 U.S. 544, 547-48 (2004), the United

States Supreme Court noted that, simply because material that was

potentially useful to a defendant had been destroyed, it did not make the

destruction a Brady violation and did not violate the Constitution absent a

showing of bad faith.       See Fischer, supra at 547-48; see also

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Commonwealth v. Snyder, 963 A.2d 396, 405-06 (Pa. 2009) (same).

Here, the photograph, at most, constituted potentially useful material. The

record does not demonstrate that Officer Rahill undertook the destruction in

bad faith. (See N.T. Suppression Hearing, 2/10/14, at 72). Thus, the trial

court erred in finding that the destruction of the photograph constituted a

Brady violation. See Fischer, supra at 547-48; Snyder, supra at 405-06.

      Lastly, the trial court suppressed the out-of-court identification on the

basis that the destruction of the photograph violated Pennsylvania Rule of

Criminal Procedure 573(B)(1)(f).    (See Trial Ct. Op., at 13).   However, in

Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008), our Supreme

Court held that Rule 573 does not apply to materials that are in the sole

possession of the police. See Collins, supra at 253 (“The Commonwealth

does not violate Rule 573 when it fails to disclose to the defense evidence

that it does not possess and of which it is unaware. . . . when the evidence

is exclusively in the custody of police, possession is not attributed to the

Commonwealth for purposes of Rule 573.”) (citations omitted). Here, there

is nothing in the record to support a finding that the Commonwealth ever

had possession of the photograph. Therefore, the trial court erred in holding

that Rule 573 mandated suppression of the out-of-court identification. See

id. at 253.




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      Accordingly, for the reasons discussed above, we are constrained to

reverse the grant of suppression and remand the matter for further

proceedings consistent with this decision.

      Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2015




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