J-S24040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                    Appellant               :
                                            :
                                            :
              v.                            :
                                            :
                                            :
 ROBIN MCALLISTER                           :   No. 350 EDA 2018

                   Appeal from the Order January 2, 2018
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0005311-2017


BEFORE:    LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

CONCURRING MEMORANDUM BY LAZARUS, J.:                   FILED JULY 03, 2019

      I fully join in the majority’s decision to reverse the trial court’s order

and remand for further proceedings. After reviewing the photo array at issue,

I write separately to state that though the record technically supports the trial

court’s factual findings, the standard governing suggestiveness ultimately

undermines the court’s legal conclusions.

      The trial court found the following factors impermissibly highlighted

McAllister within the six-person photo array: 1) McAllister had a larger beard;

2) McAllister “appeared larger within his picture than the other five

individuals[;]” 3) McAllister had no tattoos, but two others did; 4) McAllister

either had notably more or noticeably less hair than the others; and 5)

McAllister’s skin tone was dissimilar from the others. See Trial Court Opinion,

7/20/18, at 4–6.

      As stated by the majority, the relevant standard at issue is as follows:

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S24040-19


     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. Photographs used in
     line-ups are not unduly suggestive if the suspect’s picture does
     not stand out more than the others and the people depicted all
     exhibit similar facial characteristics.

Commonwealth v. Stiles, 143 A.3d 968, 978 (Pa. Super. 2016) (citations

omitted).

     The trial court’s factual findings are all technically true, yet each is

somewhat misleading, and none rises to the level of suggestiveness required

by the legal standard reproduced above.       As a case-in-point example, I

highlight the trial court taking umbrage with the range of beard lengths

present in the array. McAllister indeed has a large beard in his photo. His

beard, however, is by no means the largest in an array where everyone has a

beard. As with the other four factual findings, the trial court’s use of beard

length serves to highlight a real but minor variation between the subject and

the five other individuals. See Trial Court Opinion, 7/20/18, at 4–6. Taken

in totality, neither the variations highlighted by the trial court, nor those

observable in the photos themselves, cause “the suspect’s picture [to stand]

out more than the others[.]”     See Stiles, supra at 978.     Consequently,

suppression was not warranted.

     Thus, I concur.




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