J-A20013-18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

RICO MURPHY,

                          Appellant                   No. 698 WDA 2017


       Appeal from the Judgment of Sentence Entered April 13, 2017
            In the Court of Common Pleas of Allegheny County
           Criminal Division at No(s): CP-02-CR-0010514-2014


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED OCTOBER 17, 2018

      Appellant, Rico Murphy, appeals from the judgment of sentence of an

aggregate term of 12½ - 25 years’ imprisonment, imposed following his

conviction for aggravated assault and related offenses. Appellant asserts that

the out-of-court identification of Appellant by an eyewitness was unduly

suggestive and unreliable. Appellant argues the trial court erred by denying

his motion to suppress that initial identification, as well as all subsequent in-

court identifications ostensibly tainted thereby, on that basis. After careful

review, we affirm.

      The trial court summarized the pertinent facts of this case as follows:

      On June 17, 2017, Richard Palmer was riding a bicycle in the
      Hazelwood section of the City of Pittsburgh when he suffered two
      gunshot wounds. One shot hit him in the back and penetrated
      vertebrae. The other shot entered his stomach. After surgery,
      Mr. Palmer had difficulty walking. He had to use a cane. He had
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     very little memory of the day of the shooting. He testified that he
     never saw the shooter.

           Diedr[a] Riemenschneider testified that she was with her
     mother leaving a Rite Aid store in her mother’s Ford Mustang in
     the Hazelwood section of Pittsburgh. As she and her mother were
     driving down Tecumseh Street[,] she looked to her left and
     observed Mr. Palmer riding a bicycle. As she watched Mr. Palmer,
     she observed [Appellant] approach Mr. Palmer and shoot Mr.
     Palmer two times. She had an unobstructed view of [Appellant]
     and clearly identified him as the shooter. She saw Mr. Palmer fall
     to the ground and her mother accelerated their vehicle,
     attempting to pursue [Appellant] as he fled from the scene. They
     observed [Appellant] flee down a pathway near the scene of the
     shooting. Ms. Riemenschneider, fearing that [Appellant] had a
     gun, convinced her mother to discontinue pursuit of [Appellant]
     and return to Mr. Palmer to render first aid. They attended to Mr.
     Palmer and called 911. Ms. Riemenschneider’s mother talked to
     Mr. Palmer in an effort to keep him calm while emergency
     personnel were en route.

            After emergency personnel arrived, Ms. Riemenschneider
     was interviewed by the police. She informed officers that she saw
     the firearm used in the shooting. She described it as blue or
     purple. She provided a description of the shooter’s clothing as a
     white t-shirt with long black basketball shorts. She also described
     the shooter as a skinny, tall black male wearing a hat.
     Approximately ten minutes after the police arrived and had
     apprehended [Appellant], Ms. Riemenschneider was taken to Lytle
     Street, where [Appellant] was in custody, and she identified [him]
     as the person who shot Mr. Palmer. He did not have a white t-
     shirt on at the time. He also was not wearing a hat. He was,
     however, wearing a tank top.

             Detective Douglas Butler testified that he was one of the
     initial responders to the scene. Relying on information supplied
     to him when he arrived on scene, he and two other officers began
     canvassing the area looking for the shooter. As he was walking
     on Lytle Street, he was greeted by a hysterical resident claiming
     that while her two sons were playing in the back yard, a black
     male jumped her fence and the black male was holding a blue
     gun. The residents ran into the house. Detective Butler, Detective
     Fetty and Detective O’Dille continued to canvass the area.
     Detective Butler eventually located [Appellant] lying face down in
     some brush, attempting to hide from the police. [Appellant] told

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      Detective Butler that he had thrown the firearm. Detective Fetty,
      who responded to the scene, observed [Appellant] just prior to his
      apprehension. [Appellant] was holding an object wrapped in a
      white t-shirt. Detective Fetty observed [Appellant] attempting to
      hide the item and the white t-shirt under a fence.           After
      [Appellant] was placed in custody, a blue Cobra Enterprise .380
      caliber firearm wrapped in the white t-shirt was recovered from
      the area where [Appellant] was observed trying to hide it. Bullet
      casings from .380 caliber ammunition were found at the scene and
      trial testimony established that the casings were fired from the
      firearm recovered in this case.

             After [Appellant] was taken into custody, he was
      interviewed by Detective Timothy Rush. [Appellant] initially told
      Detective Rush that he did not shoot Mr. Palmer and he was in the
      area of the shooting because he had to go to the bathroom.
      [Appellant] claimed he became tired and laid down in the area
      where he was arrested. He also denied shooting Mr. Palmer. After
      being confronted with the evidence that had been developed in
      this case, [Appellant] advised Detective Rush that he didn’t want
      to go back to prison. He also asked Detective Rush “how much
      time [he] would get” if he were convicted of the charges relating
      to this incident.

            Gun[]shot residue was found on [Appellant]’s right hand,
      front and back.

Trial Court Opinion (“TCO”), 1/17/18, at 2-4.

      On September 17, 2014, the Commonwealth charged Appellant with

attempted homicide, two counts of aggravated assault, person not to possess

a firearm, and recklessly endangering another person.        On May 1, 2015,

Appellant filed a motion to suppress, contending that Ms. Riemenschneider’s

initial identification of Appellant was unduly suggestive and unreliable. See

Motion to Suppress, 5/1/15, at 2 ¶ 6. Appellant also argued that, as a result,

her subsequent identification of Appellant at the preliminary hearing was

tainted by the ostensibly unlawful prior identification. Id. at 3 ¶ 10.



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       The trial court held a suppression hearing on May 11, 2015. On August

3, 2015, the court issued an order denying Appellant’s motion to suppress.

Appellant proceeded to a jury trial on August 29, 2016.1 On August 31, the

jury found Appellant not guilty of attempted homicide, but guilty on all

remaining counts.       The trial court held Appellant’s sentencing hearing on

November 21, 2016. At that time, the court sentenced Appellant to 10-20

years’ incarceration for one count of aggravated assault, and to a consecutive

term of 2½-5 years’ incarceration for person not to possess a firearm. Also

on that date, Appellant filed a post-sentence motion. With permission of the

trial court, Appellant later amended that motion on April 12, 2017.2 Post-

sentence motions were denied on April 13, 2017.        Appellant filed a timely

notice of appeal on May 11, 2017. Appellant filed a timely, court-ordered

Pa.R.A.P. 1925(b) statement on June 7, 2017. The trial court issued its Rule

1925(a) opinion on January 18, 2018.

       Appellant now presents the following question for our review:

       Did the trial court err by denying Appellant’s motion to suppress
       the eyewitness identification of [him], and all subsequent
       identifications, where the identification procedure used was
       unduly suggestive because the police made improper statements
       to the eyewitnesses and Appellant was presented for the one-on-
       one identification in handcuffs while surrounded by police?
____________________________________________


1The procedural history of this case, from August 2015 until August 2016, is
not pertinent to the issues raised in the instant appeal.

2 Due to a change in counsel, initiated by a motion to withdraw filed by
Appellant’s trial attorney in the first post-sentence motion, the trial court
permitted Appellant to file an amended post-sentence motion through his new
counsel. Thus, the April 12, 2017 amended post-sentence motion was timely.

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Appellant’s Brief at 5.

             Our standard of review in addressing a challenge to the
      denial of a suppression motion is limited to determining whether
      the suppression court’s factual findings are supported by the
      record and whether the legal conclusions drawn from those facts
      are correct. Because the Commonwealth prevailed before the
      suppression court, we may consider only the evidence of the
      Commonwealth 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 suppression court’s factual findings are
      supported by the record, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. Where,
      as here, the appeal of the determination of the suppression court
      turns on allegations of legal error, the suppression court’s legal
      conclusions are not binding on an appellate court, whose duty it
      is to determine if the suppression court properly applied the law
      to the facts. Thus, the conclusions of law of the courts below are
      subject to our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361–62 (Pa. Super.

2012)).

      “In reviewing the propriety of identification evidence, the central
      inquiry is whether, under the totality of the circumstances, the
      identification was reliable.” McElrath v. Commonwealth, 405
      Pa. Super. 431, 592 A.2d 740, 742 (1991). The purpose of a “one
      on one” identification is to enhance reliability by reducing the time
      elapsed after the commission of the crime. Commonwealth v.
      Bullock, 259 Pa. Super. 467, 393 A.2d 921 (1978).
      “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.” McElrath,
      592 A.2d at 742. 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 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.” McElrath, 592 A.2d
      at 743 (citation omitted). The corrupting effect of the suggestive

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      identification, if any, must be weighed against these factors.
      Commonwealth v. Sample, 321 Pa. Super. 457, 468 A.2d 799
      (1983). Absent some special element of unfairness, a prompt
      “one on one” identification is not so suggestive as to give rise to
      an irreparable likelihood of misidentification. Commonwealth v.
      Brown, 417 Pa. Super. 165, 611 A.2d 1318 (1992).

Commonwealth v. Meachum, 711 A.2d 1029, 1034 (Pa. Super. 1998).

      With these standards in mind, Appellant contends that the out-of-court

identification (hereinafter, “show-up procedure”) was unduly suggestive, that

the factors cited by the trial court regarding the reliability of the identification

were not supported by the record, and that, considering the totality of the

circumstances, the out-of-court identification was not reliable.

      Initially, we must address the Commonwealth’s waiver argument that

Appellant raises new issues and theories in his brief that were not presented

to the lower court.    Specifically, the Commonwealth contends that at the

suppression hearing, Appellant did not delve into any other matters

concerning the reliability of the identification except for the suggestiveness of

the show-up procedure itself. Commonwealth’s Brief at 15-16 n.7.

      We agree that Appellant did not raise any other legal arguments at the

suppression hearing beyond the suggestiveness of the show-up procedure.

However, following Ms. Riemenschneider’s testimony, Appellant’s counsel

specifically requested the opportunity to provide a brief to the court based on

“additional facts that came out” during the hearing that counsel “did not

anticipate[.]” Suppression Hearing Transcript (“SHT”), 5/11/15, at 23. In

that brief, Appellant did appear to raise claims concerning reliability factors

unrelated to the suggestiveness of the show-up procedure itself.           Brief in

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Support of [Appellant’s] Motion to Suppress, 7/2/15, at 4-6. Subsequently,

the court held a hearing to consider the motion to suppress in light of the

parties’ briefs filed after the suppression hearing. At that hearing, Appellant

again challenged both the suggestiveness of the show-up procedure, and

other factors concerning the reliability of the identification. N.T., 8/3/15, at

5.   Accordingly, we disagree with the Commonwealth that Appellant has

waived any arguments due to a failure to raise them in the lower court.

Moreover, although Appellant’s Rule 1925(b) statement appears to make a

boilerplate assertion of error,3 it is clear by Appellant’s extensive litigation of

this issue in the trial court, and the trial court’s responsive Rule 1925(a)

opinion,4 that Appellant’s Rule 1925(b) statement was sufficient to notify the

trial court of the issues he intended to raise on appeal.             Accordingly, we

conclude that Appellant did not waive his assertions concerning the ostensible

unreliability   of   the   identification      procedure   apart   from   the   show-up

procedure’s suggestiveness.

       First, we accept Appellant’s argument that the show-up procedure

utilized in this case was suggestive. Appellant was in handcuffs, surrounded

by police officers, and the only person presented to the eyewitness when she

positively identified him as the shooter. However, the applicable standard
____________________________________________


3Appellant raised the claim as follows: “The trial court erred in denying [the]
Motion to Suppress the eyewitness identification of [Appellant] by witness
Diedra Riemenschneider.” Rule 1925(a) Statement, 6/7/17, at 2 ¶ 9(a).

4 The trial court concluded that there was “nothing about the identification
that was unreliable or unduly suggestive….” TCO at 6 (emphasis added).

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here is the reliability of the identification, where the suggestiveness of the

procedure is but one of many factors to consider. Thus, we now turn to those

other factors to consider whether, under the totality of the circumstances, the

identification was unreliable.

       The opportunity of the witness to view the perpetrator at the

                                 time of the crime

      We reject Appellant’s argument that the factual record establishes that

Ms. Riemenschneider was not close enough to Appellant during the shooting

to provide an accurate description. Appellant contends that “the witness could

have been across the street, or even further away, when she identified him as

the shooter.”     Id. at 19.         Appellant bases this argument on Ms.

Riemenschneider’s testimony that she was about a half of block away when

she initially saw the shooter. Id; SHT at 5 (“Q. Whenever you initially saw

him how far away from you was he? A. From us? We were on a corner and

he was maybe in the middle of the block away from us, probably half a block.”)

However, as the shooting unfolded, Ms. Riemenschneider and her mother

turned onto the street and moved toward the location where the shooting was

occurring.   SHT at 12.     Ms. Riemenschneider’s mother, the driver, even

attempted to follow the shooter, before ultimately stopping and rendering aid

to the victim.   Id.   Thus, the record does not support a finding that Ms.

Riemenschneider only observed the shooter from a half a block away.

Instead, the record supports a finding that Ms. Riemenschneider began her

observations from half a block away, but had moved closer to the shooter

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during the time she had to observe him. We find from this record no reason

to conclude that the distance involved was a critical factor to the reliability of

the identification. It was close enough for the eyewitness to observe several

distinguishing features, discussed infra. At the same time, it was not so close

to suggest that the distance itself was a significant factor to bolster the

reliability of the identification.

                       The witness’ degree of attention

      Appellant contends that the “Commonwealth did not explicitly elicit

testimony regarding the witness’ degree of attention….” Appellant’s Brief at

24. Nevertheless, Appellant concedes that “it does appear that the witness

was paying attention to the incident as a whole.” Id. However, Appellant

argues that “the record fails to establish that the witness was paying attention

to the shooter’s face.” Id. Appellant does not cite to any case law suggesting

that the degree of attention paid to the face, specifically, is conclusive. It is

well established that a witness may identify a suspect based on the totality of

his appearance, not solely from the facial features alone. Indeed, a “witness

may identify an alleged perpetrator from his voice alone….” In re K.A.T., Jr.,

69 A.3d 691, 696 (Pa. Super. 2013).           Thus, facial recognition is not a

prerequisite to a reliable identification. Certainly, “facial identification is the

strongest identification testimony[,]” however, “[s]ize, height, weight, hair,

clothing, body build, color, location and mannerisms are all acceptable

methods of identifying a person.” Commonwealth v. Smith, 423 A.2d 1296,

1299 (Pa. Super. 1981). Accordingly, we conclude that this factor bolsters

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the reliability of the identification, even if the eyewitness could not specifically

describe Appellant’s facial features,5 as the record supports a finding that the

eyewitness’s attention was focused on the shooting and the perpetrator when

the crime occurred.

         The accuracy of the prior description of the perpetrator

       The trial court concluded that Ms. Riemenschneider accurately described

Appellant’s appearance before the show-up procedure. TCO at 6. She was

able to describe Appellant’s clothing (white T-shirt and long, black basketball

shorts, hat) his general build (very skinny, tall male), his hair (plaited), and

the color of the gun (bluish or purplish). SHT at 5; 13. When she subsequently

identified him at the show-up procedure, Appellant presented the same

appearance, but without the hat and T-shirt. However, Ms. Riemenschneider


____________________________________________


5 In any event, we note that the record does somewhat support the trial court’s
factual conclusion that Ms. Riemenschneider “was able to specifically observe
[Appellant]’s face at [the] time [of the shooting].” TCO at 4. When she
described her perspective at the time of the shooting, she indicated that the
shooter was facing the victim at the time, and generally away from her
position. See SHT at 9. She also indicated that the two were essentially
equidistant from her, suggesting, collectively, that she had a view of the
shooter’s face. Id. However, some of the witness’ testimony regarding her
perspective appears to be in the form of physical gesticulation, and she did
not specifically state (nor was she asked) if she had a good view of his face.
Id. From the trial court’s conclusion, we ascertain that the court took her
spoken testimony and gesticulations together to conclude that she could see
Appellant’s face at that time, and Appellant has not directed this Court’s
attention to anything in the record that refutes that conclusion. Moreover,
this conclusion is consistent with Ms. Riemenschneider’s testimony during the
preliminary hearing, where she specifically stated that the shooter looked in
her direction immediately after shooting the victim. See N.T. Preliminary
Hearing, 8/4/14, at 12.

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immediately noticed the absence of the T-shirt. Id. at 6. Appellant argues

that the eyewitness failed to initially identify the shooter’s race or specific

facial characteristics. While such characteristics would have certainly added

to the accuracy of her description, we do not view their absence as suggesting

that her description was inaccurate. Instead, we weigh this factor in favor of

the identification’s reliability, as Appellant’s appearance at the show-up

procedure was closely aligned with Ms. Riemenschneider’s initial description

to police. Particularly compelling was the correct identification of the color of

the gun, which was found wrapped in the very same item of clothing that she

had identified as being missing from Appellant during the show-up procedure.

      Appellant further complains that the record does not support the

conclusion that Ms. Riemenschneider’s testimony was describing the shooter

as she first observed him, rather than her recollection of what she observed

during or after the show-up procedure. See SHT at 5. While we agree with

Appellant that there was some ambiguity at the suppression hearing in this

regard (on its face, it is not clear if she was asked to describe Appellant as

she remembered his appearance at the time of the shooting, or whether,

consistent with a prior question, she was asked to describe the initial

description she gave to police before the show-up procedure), we note that

this specific claim was never raised before the trial court, and it is clear that

the trial court understood her testimony to be conveying the initial description

of the shooter before the show-up procedure. At no time before Appellant’s

brief to this Court did he bring this matter to the trial court’s attention. As

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this aspect of his argument arose during the course of the suppression

hearing, it is understandable that he did not raise it in his initial suppression

motion.     However, Appellant did not raise this specific matter in his

subsequent brief in support of the suppression motion, nor did he address it

during oral argument before the trial court on August 3, 2015. Additionally,

Appellant’s boilerplate statement of the issue in his Rule 1925(b) statement

did not address the matter.           Accordingly, we find this specific aspect of

Appellant’s claim waived.6 See Pa.R.A.P. 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

        The level of certainty demonstrated at the confrontation

       Appellant argues that

       there is no definitive evidence in the suppression record as to the
       witness’s level of certainty of her identification of Appellant as the
       shooter. The witness did not make equivocating statements as to
       the certainty of her identification, however[,] the witness did not
       provide evidence that showed she was certain in her identification
       or evidence indicating her level of confidence.

Appellant’s Brief at 36.

       The Commonwealth only briefly addresses this matter, countering that

Ms. Riemenschneider “immediately identified [Appellant] and expressed no

____________________________________________


6  In any event, at the preliminary hearing, Ms. Riemenschneider was
specifically asked about the description she gave to police before the show-
up procedure. She answered as follows: “I told them that he was a very tall,
very thin black male. He had a white -- a long white tee-shirt. It was plain
white, and long black basketball shorts.” N.T. Preliminary Hearing at 17. This
is essentially the same response Ms. Riemenschneider gave at the suppression
hearing, lending credence to the trial court’s determination that she was
describing her pre-show-up description of Appellant at that time as well.

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uncertainty or hesitation in her identification.” Commonwealth’s Brief at 19.

The trial court does not separately address this factor in a meaningful manner,

other than to describe the identification as “positive[.]” TCO at 5, 6. Given

that there is no evidence of equivocation, but also no evidence of the witness’s

level of confidence beyond the promptness of her identification, we assess no

weight to this factor for or against a determination of reliability.

              The time between the crime and confrontation

      The final factor we consider is the time between Ms. Riemenschneider’s

observation of the shooting and her identification of Appellant at the show-up

procedure.        Appellant concedes that this factor weighs in favor of a

determination of reliability.     We agree.    Ms. Riemenschneider identified

Appellant a mere 20 minutes after she observed the shooting, while the

memory was still fresh in her mind.

 Reliability factors vs. the suggestiveness of the show-up procedure

      As noted above, we have determined that the show-up procedure

utilized by police had some risks of suggestiveness. Appellant was presented

to Ms. Riemenschneider in handcuffs and surround by police. However, on

balance, we conclude that several factors favored the reliability of the

identification.    Specifically, Ms. Riemenschneider’s degree of attention, the

accuracy of her prior description, and the time between the crime and the

identification all suggested that her identification was reliable.      The other

factors we considered favored neither reliability nor a lack thereof.




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      Thus, we ascertain no error or abuse its discretion in the trial court’s

refusing to suppress the show-up procedure identification. Consequently, we

also conclude that the trial court did not err or abuse its discretion in refusing

to suppress Ms. Riemenschneider’s subsequent identifications of Appellant, as

no taint follows a reliable identification.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/17/2018




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