J-S62012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

DARRYL RICHARD HARRIS

                            Appellant                No. 2036 MDA 2015


           Appeal from the Judgment of Sentence October 28, 2015
              In the Court of Common Pleas of Lycoming County
             Criminal Division at No(s): CP-41-CR-0001431-2014


BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                     FILED SEPTEMBER 28, 2016

        Darryl Richard Harris (“Appellant”) appeals from the judgment of

sentence entered in the Lycoming County Court of Common Pleas following

his jury trial convictions for possession with intent to deliver (“PWID”),1

delivery of a controlled substance,2 criminal use of a communication facility,3

fleeing or attempting to elude a police officer,4 possession of a controlled

substance,5 and conspiracy.6 We affirm.

____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
    35 P.S. § 780-113(a)(30).
3
    75 Pa.C.S. § 7512(a).
4
    75 Pa.C.S. § 3733(a).
5
    35 P.S. § 780-113(a)(30).
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        The relevant facts and procedural history of this appeal are as follows.

On August 14, 2014, a confidential informant (“CI”), helped Pennsylvania

state police set up a controlled purchase of crack cocaine. N.T., 4/22/15, at

16-17. After arranging a meeting through text messages with co-defendant

Markese Askew, the CI parked her vehicle in front of a bowling alley with

$300.00 police had given her to purchase drugs.           Id. at 20-26. Appellant

drove a red vehicle past the CI, and passenger Mr. Askew waved at the CI,

indicating that she should follow them.           Id. at 29.   The CI followed the

vehicle until it pulled over. Id. at 30. She pulled over, exited her vehicle,

entered the back seat of Appellant’s vehicle, and sat directly behind

Appellant, the driver. Id. The CI handed the money to Appellant, and Mr.

Askew handed her bags of drugs, which she placed in her pocket before

returning to her car. Id. at 31. She returned to meet with Officer Whipple

and gave him the drugs. Id.

        After the controlled purchase, Officer William Holmes, who was driving

an undercover vehicle, and Officer Jeff Paulhamus, who was in a marked

police vehicle, followed Appellant’s vehicle.           Id. at 78, 89.      Officer

Paulhamus initiated his police lights, and Appellant did not pull over, but

sped away until he eventually crashed. Id. at 78, 89. Appellant ran from




                       _______________________
(Footnote Continued)
6
    18 Pa.C.S. § 903(c).



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the vehicle. Id.      The officers parked their vehicles and chased Appellant on

foot until Officer Paulhamus took Appellant into custody. Id. at 78, 90.

       The CI was unable to identify Appellant in a photo array that consisted

of eight photographs, one of which was Appellant.                 N.T. 12/16/14, at 3.

However, at a preliminary hearing, the CI positively identified Appellant

when he was sitting next to his co-defendant at the defense table. Id. at

13.   She felt confident that she had correctly identified Appellant at the

preliminary hearing because she was able to see his profile, having observed

it in the car when she purchased the drugs.                Id. at 18.   The photo array

image of Appellant did not depict his profile. Id.

       Appellant filed several pre-trial motions, including a motion to preclude

the CI’s in-court identification of Appellant due to the suggestive nature of

the identification at the preliminary hearing.               The court conducted an

omnibus pre-trial motion hearing on December 16, 2014 and denied

Appellant’s motion to preclude the in-court identification.

       On April 22, 2015, a jury convicted Appellant of the aforementioned

crimes.     On October 28, 2015, the court sentenced Appellant to an

aggregate     sentence     of    thirty-six    (36)   to   seventy-two    (72)   months’

incarceration.7    On November 19, 2015, Appellant timely filed a notice of

appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.8

____________________________________________


7
  The court imposed consecutive sentences of eighteen (18) to thirty-six
(36) months’ incarceration for PWID and for fleeing and eluding. The court
(Footnote Continued Next Page)


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      Appellant raises the following issue for our review:

          DID THE SUPPRESSION COURT ERR BY FAILING TO
          PRECLUDE THE CONFIDENTIAL      INFORMANT    FROM
          TESTIFYING AT TRIAL REGARDING HER IDENTIFICATION
          OF THE APPELLANT DUE TO THE UNDULY SUGGESTIVE
          NATURE OF THE ORIGINAL IDENTIFICATION AT THE
          PRELIMINARY HEARING?

Appellant’s Brief at 7.

      Appellant argues the CI’s identification of him at the preliminary

hearing was unduly suggestive because the CI was unable to identify him in

a photo array but later positively identified him when he was handcuffed,

dressed in an orange prison jumpsuit, and sitting next to his co-defendant at

the preliminary hearing.          He claims that this was an unduly suggestive

identification that should have precluded the CI from identifying Appellant in

court, and that he is entitled to a new trial in which the CI is precluded from

identifying him. We disagree.
                       _______________________
(Footnote Continued)

imposed a concurrent sentence of twelve (12) to twenty-four (24) months’
incarceration for criminal use of a communication facility, and the rest of
Appellant’s convictions merged for sentencing purposes.
8
  On November 23, 2015, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and he timely complied the next day. The court issued a Pa.R.A.P. 1925(a)
opinion on February 11, 2016. In its opinion, the court found Appellant
waived his issue as to the suppression ruling because the issue presented in
his concise statement was overly broad and vague. The court relies on its
opinion and order of January 14, 2015 for the reasons it denied Appellant’s
suppression motion. Because Appellant raised his issue at the suppression
hearing, and the court addressed his issue, we do not find the issue waived
based on the quality, or lack thereof, of Appellant’s concise statement.



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      Preliminarily, “it is the appellant’s duty to ensure that the certified

record is complete for purposes of review.” Commonwealth v. Little, 879

A.2d 293, 301 (Pa.Super.2005), appeal denied, 890 A.2d 1057 (Pa.2005)

(quoting    Commonwealth       v.   Dehart,   730     A.2d   991,    993   n.   1

(Pa.Super.1999), appeal denied, 745 A.2d 1218 (Pa.1999)).           “A failure by

Appellant to insure that the original record certified for appeal contains

sufficient information to conduct a proper review constitutes waiver of the

issue sought to be examined.” Commonwealth v. Martz, 926 A.2d 514,

525 (Pa.Super.2007). “[I]f the appellant caused a delay or other problems

in transmitting the certified record, then he or she is not entitled to relief

and the judgment of the court below should be affirmed.” Commonwealth

v. Bongiorno, 905 A.2d 998, 1001 (Pa.Super.2006).

      Here, the transcript from the preliminary hearing is not in the certified

record. We decline to affirm on the basis of waiver, however, because we

are able to conduct a review of the issue, and neither party contests that the

CI identified Appellant at the preliminary hearing.

      Our standard of review for a trial court’s denial of a suppression

motion is as follows:

           In addressing a challenge to a trial court’s denial of a
           suppression motion we are limited to determining whether
           the factual findings are supported by the record and
           whether the legal conclusions drawn from those facts are
           correct.   Since the Commonwealth prevailed in 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

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         context of the record as a whole. Where the record
         supports the factual findings of the trial court, we are
         bound by those facts and may reverse only if the legal
         conclusions drawn therefrom are in error.

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super.2010) (quoting

Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa.2003)). “Our standard

of review is restricted to establishing whether the record supports the

suppression court’s factual findings; however, we maintain de novo review

over the suppression court’s legal conclusions.”         Commonwealth v.

Guzman,     44   A.3d    688,   692    (Pa.Super.2012)    (citation   omitted).

Additionally, when reviewing the suppression court’s rulings, we consider

only the suppression record. See In re L.J., 79 A.3d 1073, 1085 (Pa.2013)

(“it is inappropriate to consider trial evidence as a matter of course, because

it is simply not part of the suppression record, absent a finding that such

evidence was unavailable during the suppression hearing.”).

      “When an out-of-court identification is alleged to be tainted, an in-

court identification may still stand if, considering the totality of the

circumstances, the identification had an origin sufficiently distinguishable to

be purged of the primary taint.”    Commonwealth v. Kendricks, 30 A.3d

499, 506 (Pa.Super.2011), appeal denied, 46 A.3d 716 (Pa.2012) (internal

quotations and citation omitted).      The Commonwealth must prove this

independent basis for identification through clear and convincing evidence.

See Commonwealth v. Davis, 17 A.3d 390, 394 (Pa.Super.2011), appeal

denied, 29 A.3d 371 (Pa. 2011). “An independent basis is established when

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‘the in-court identification resulted from the criminal act and not the

suggestive [identification procedure].’” Id.

         In reviewing the propriety of identification evidence, the
         central inquiry is whether, under the totality of the
         circumstances, the identification was reliable. The purpose
         of a “one on one” identification is to enhance reliability by
         reducing the time elapsed after the commission of the
         crime. 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 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. 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. Kearney, 92 A.3d 51, 65 (Pa.Super.2014), appeal

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

      Although the CI did not identify Appellant in a photo array, she

positively identified him at the preliminary hearing while he was handcuffed,

wearing an orange jumpsuit and sitting next to his co-defendant at the

defense table. Regarding this identification, the suppression court reasoned:

         In reviewing [the reliability factors enumerated in
         Kearney, supra], the [c]ourt cannot conclude that the
         identification of [Appellant] at the preliminary hearing was
         so suggestive as to give rise to an irreparable likelihood of
         misidentification.   When the incident occurred, the CI
         viewed [Appellant] from a profile position. She did not

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        have an opportunity to view his whole face. She had not
        previously met [Appellant]. The full face photograph of
        [Appellant] set forth in the array did not produce an
        identification. At the preliminary hearing, however, and as
        explained by the Commonwealth without objection by
        [Appellant], the CI had an opportunity to view [Appellant]
        in person from a profile position, as well as a full frontal
        position.

        Certainly, the CI had an opportunity to view [Appellant] at
        the time of the crime.         While she was paying some
        attention, she was certainly not paying entire attention in
        light of the fact that it was a quick transaction and she was
        dealing with two individuals. Further, [Appellant] was in
        front of her while she was in the back seat. She did
        describe [Appellant] as being a light-skinned black male
        with possibl[y] a goatee. There is nothing in the record to
        lead the [c]ourt to conclude that there was any level of
        uncertainty by the CI when she identified [Appellant] at
        the preliminary hearing and while there is some level of
        suggestiveness, the [c]ourt cannot conclude that under all
        of the circumstances the identification was so suggestive
        as to give rise to an irreparable likelihood of
        misidentification. This conclusion is bolstered by the fact
        that the witness was not willing to simply identify anyone
        at the array. The integrity of the identification process is
        evident.

        Accordingly, [Appellant’s] omnibus pretrial motion in the
        nature of a motion to dismiss and motion to suppress will
        be denied.

Omnibus Pretrial Motion Opinion and Order, filed January 14, 2015, at 11-

12.

      The trial court’s findings are supported by the record and the legal

conclusions drawn therefrom are not error.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/28/2016




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