J-S65018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANGELA L. DUPONT                           :
                                               :
                       Appellant               :   No. 721 MDA 2019

         Appeal from the Judgment of Sentence Entered, April 2, 2019,
              in the Court of Common Pleas of Lancaster County,
            Criminal Division at No(s): CP-36-CR-0002201-2018.

BEFORE:      PANELLA, P.J., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.:                   FILED: MAY 11, 2020

        Angela L. Dupont appeals from a judgment of sentence of one year of

probation, after a jury convicted her of fleeing the scene of a car accident.1

She claims the trial court erred by not suppressing a witness’s identifications

of her from a photo array, which Dupont believes was so highly suggestive

that it violated her due process rights. We affirm.

        Dupont filed a pretrial motion to prohibit Beauabe Kibret from testifying

that she was the person who ran a red light, crashed her car into his, and fled

the scene. The court of common pleas conducted a hearing on that motion

and related its findings of facts as follows:

                On November 8, 2017, at approximately 4:30 p.m.,
           Beauabe Kibret was driving home from work when the front
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

118 Pa.C.S.A. § 3743(a). The Commonwealth also charged Dupont with two
summary offenses.
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       driver’s side of his vehicle was struck by the front passenger
       side of another vehicle, a blue Saturn Vue. Mr. Kibret exited
       his vehicle and walked towards the vehicle that struck him.

             Mr. Kibret . . . observed the other driver, including
       both the profile and the front of their face, from a distance
       of between two to three feet for 15 to 30 seconds. . . . [T]he
       driver of the other vehicle made direct eye contact with him.
       Before Mr. Kibret could make verbal contact with the driver
       of the other vehicle, she backed the vehicle up and drove
       away. Mr. Kibret testified the driver of the other vehicle was
       a Caucasian, thin female in her late twenties or mid-thirties
       who, at the time of the accident, had straight, “blondish” or
       blonde hair and was wearing a black shirt. [He] gave that
       description to Officer Brennan Stamm when [the police]
       arrived at the scene of the accident.

             Approximately two months [later], Officer Stamm
       arrived at the scene of a traffic stop involving a blue Saturn
       Vue with frontend damage consistent with the November 8,
       2017 accident. Officer Stamm testified that the driver and
       registered owner of the vehicle, [i.e., Dupont], was similar
       to the description provided by Mr. Kibret.

              Using a program called C-Penn on J-NET, Officer
       Stamm created a black-and-white-photo lineup that
       included a photograph of [Dupont], as well as the
       photographs of seven other Caucasian females between the
       age of 20 and 30, similar in appearance to [Dupont’s]
       photograph. Officer Stamm . . . print[ed] the selected
       photographs as a group on a single sheet of paper [and] as
       individual eight by ten photographs. The women in the
       selected photographs all appear to have darker hair similar
       to [Dupont’s] photograph, and . . . none of the women in
       the photo lineup appear to have blonde hair. Six of the eight
       photographs in the lineup, including the photograph of
       [Dupont], depict women with curly hair.

             Officer Stamm contacted Mr. Kibret by telephone on
       January 19, 2018 and asked him if he would look at some
       photographs and attempt to identify the driver who hit him.
       [The officer] went to Mr. Kibret’s place of employment and
       met with him in an office. Mr. Kibret first looked through
       the individual photos and testified that he was able to
       narrow it down to three of those photographs. [He flipped]


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         through the individual photos for a couple seconds and
         appeared to be having difficulty with not having the photos
         lined up side-by-side. [So] Officer Stamm then placed the
         group of photographs on the single sheet in front of Mr.
         Kibret and told him to take his time. . . . after looking at the
         group of photographs on the single sheet for second or so,
         [Mr. Kibret] was able to identify [Dupont’s] photograph as
         the driver of the vehicle that hit him and subsequently
         signed and dated near her photograph.

                 Mr. Kibret appeared to have some difficulty either
         recalling or relaying the details of the January 19, 2018
         lineup. He testified that two of the three photographs he
         initially selected from the individual photographs depicted
         women with blonde hair. However, Officer Stamm testified
         credibly that the individual photographs matched the
         photographs on the single sheet and that there were only
         eight. None of the women in those photographs appeared
         to have blonde hair. Mr. Kibret also testified inconsistently
         about whether he could recall [Dupont’s] photograph being
         one of the original three he selected. . . . [H]e stated clearly
         that [Dupont’s] photograph was one of the three he initially
         picked. But when questioned about whether those three
         initial photographs were also on the single sheet of
         photographs and whether the photograph he ultimately
         selected was among the initial three, Mr. Kibret stated that
         he could not recall.

                Mr. Kibret . . . was confident in his identification
         despite [Dupont’s] dark, curly hair in the photograph,
         because it was her facial features that he recognized. After
         Mr. Kibret selected [Dupont’s] photograph, he noted to
         Officer Stamm that her hair was a different color, and Officer
         Stamm stated in reply that women often change their hair
         color. . . . The background of [Dupont’s] photograph is
         slightly lighter than the other photographs, the width of
         [her] photograph is slightly narrower than the other
         photographs, and [she] appears to be the only person
         photographed with an eyebrow piercing, although one of the
         other photographs depicts a woman with noticeable ear
         piercings.

Trial Court Opinion, 2/1/19, at 1-5 (footnotes omitted).



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      Based upon those facts, the suppression court concluded that the photo

array was not unduly suggestive. Furthermore, even if the array was unduly

suggestive, the court determined that other indicia of reliability in Mr. Kibret’s

identification outweighed any suggestiveness from the photo array. Thus, the

suppression court denied Dupont’s motion to prevent Mr. Kibret from testifying

that Dupont had hit him.

      As mentioned, a jury convicted Dupont of fleeing the scene of a vehicle

accident, because it credited Mr. Kibret’s recollection of the incident and

rejected Dupont’s alibi. Next, the trial court convicted her of related summary

offenses and sentenced her to one year of probation and to pay Mr. Kibret

$2,232.60 in restitution damages, a $200 fine, and other court fees and costs.

This timely appeal followed.

      Dupont raises one issue.       “Did the trial court err [by refusing] to

suppress Mr. Kibret’s identification of her from a suggestive, photographic

lineup, where said identification was unreliable and tainted by the officer’s

interference in the identification . . . ?” Dupont’s Brief at 4.

      Under Dupont’s theory, the photo array was unduly suggestive, and, as

a result, the trial court violated her state and federal, procedural due process

rights by allowing Mr. Kibret to testify against her at trial. However, she does

not claim that the Constitution of the Commonwealth of Pennsylvania affords

any greater protection in this regard than the federal charter. Thus, we review

her state and federal claims together and analyze the respective safeguards

of the two constitutions as coextensive.

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      Our standard of review on whether a police officer conducted an unduly

suggestive photo array is de novo. See, e.g., Commonwealth v. Kearney,

92 A.3d 51, 65 (Pa. Super. 2014); United States v. Burnett, 773 F.3d 122,

130 (3rd Cir. 2014). Here, because the Commonwealth prevailed below, our

scope of review includes “only the evidence of the prosecution and whatever

evidence for the defense . . . remains contradicted on the context of the whole

record.” Commonwealth v. Williams, 756 A.2d 957, 959-60 (Pa. Super.

2000).

      Under the federal Due Process Clause, defendants seeking to exclude

eyewitness-identification testimony must satisfy a two-step test.            “The

defendant has the initial burden of demonstrating the [photo array] procedure

was impermissibly suggestive.” Reese v. Fulcomer, 946 F.2d 247, 259 (3rd

Cir. 1991). “Only if the defendant meets this initial step will the court consider

the admissibility of the identification under the totality of the circumstances.”

Id. (quoting United States v. L’Allier, 838 F.2d 234, 239 (7th Cir. 1988))

(some punctuation omitted). Because Dupont’s claim fails the first test, we

need not consider the second.

      Dupont contends that Officer Stamm created and showed a photo array

that violated the pronouncements of the Supreme Court of New Jersey in

State v. Henderson, 27 A.3d 872 (N.J. 2011). Thus, although she does not

directly say so, Dupont would have us apply New Jersey constitutional law to

overturn the legal conclusions of a Pennsylvania suppression court. She even

acknowledges that Henderson conflicts with the precedents of this Court,

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expressly condoning the procedure Officer Stamm followed in compiling and

displaying the photo array.

      For example, she states, “Commonwealth v. Fulmore, [25 A.3d 340,

346-347 (Pa. Super. 2011),] held that a photographic lineup that does not

match the description provided by the eyewitness is a matter of credibility,

not undue suggestiveness.” Dupont’s Brief at 24. “The Fulmore Court also

held that it was not unduly suggestive to inform the witness that a photo array

contains a picture of someone [the investigator] believed to have committed

the offense. Fulmore at 347-348; see also Commonwealth v. Kubis, 978

A.2d 391 (Pa. Super. 2009) (same).” Id.

      In Fulmore, this Court reasoned that an officer stating to a witness that

he believes that the image of the suspect is in a photo array does not render

the photo array unduly suggestive, because that belief is inferentially implied

anytime an officer assembles and displays a photo array. “[W]hy else would

a victim be shown a photo array unless the police believed the suspect’s photo

was included?” Fulmore, 25 A.3d at 348. Hence, an officer saying that the

suspect’s photo is, in his opinion, included in the array simply gives voice to

the obvious. If that obvious statement is unduly suggestive, then any photo

or in-person lineup is, per se, unduly suggestive, because an officer’s use of

a photo or in-person lineup implies that he thinks the suspect is included.

      Dupont’s view of what constitutes an unduly suggestive photo array

therefore directly conflicts with the precedent of this Court.    Indeed, she

challenges our case law as being “at odds with what we now know about the

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science of eyewitness identification, and with appropriate eyewitness

identification protocol.”     Dupont’s Brief at 25 (citing Henderson, supra.)

While it is unclear who she means by “we” or to what “science” Dupont refers,

her reliance upon Henderson fails before this panel.

       “It is beyond the power of a Superior Court panel to overrule a prior

decision of the Superior Court, except in circumstances where intervening

authority by our Supreme Court calls into question a previous decision of this

Court.”   Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006)

(emphasis added). The Henderson Court is not “our” Supreme Court, and

we therefore may not follow its precedent in violation of our own. Accordingly,

the New Jersey court has no power to displace the settled jurisprudence of

this Commonwealth. While Dupont’s claim that Officer Stamm’s photo array

was unduly suggestive under Henderson might persuade this Court to

reconsider its precedents en banc, three judges may not apply Henderson in

the face of contrary, binding precedent.

       Additionally, in Henderson, the Supreme Court of New Jersey used its

supervisor power over that state’s court system to appoint a special master

who conducted an extensive Frye hearing.2 The master heard the testimony

of various experts from across the nation to determine whether those courts’

acceptance of eyewitness identifications rested upon junk science.        After
____________________________________________


2 See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923) (holding
that, to be admissible in a court, scientific, expert evidence requires “general
acceptance in the particular field in which it belongs.”), abrogated federally,
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

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reviewing the master’s prolific record, the Henderson Court concluded that

“[s]tudy after study revealed a troubling lack of reliability in eyewitness

identification . . . the record proves that the possibility of mistaken

identification is real.” Henderson, 27 A.3d at 877-78.

      Unlike in Henderson, no Frye hearing took place in this case; thus, no

comparable record of studies and experts is before us for appellate review.

Nor did Dupont ask the suppression court to hold a Frye hearing on the

science, so she could create an evidentiary record for our review. Any “claims

not raised in the trial court may not be raised for the first time on appeal.”

Commonwealth v. Johnson, 33 A.3d 122, 126 (Pa. Super. 2011); see also

Pa.R.A.P. 302(a) (accord). To the extent Dupont attacks our acceptance of

eyewitness identification as being scientifically unsustainable, she has waived

that argument by failing to create a factual record to prove her premise and

by failing to request a Frye hearing on the question.

      Lacking the insights and data that a Frye hearing could have provided,

the suppression court concluded the photo array at bar was not unduly

suggestive under existent, Pennsylvania law. That court opined as follows:

         Suppression is only warranted . . . where the identification
         procedure was so impermissibly suggestive as to give rise
         to    a   very    substantial   likelihood    of   irreparable
         misidentification. Commonwealth v. Kendricks, 30 A.3d
         499, 504 (Pa. Super. 2011). Allegations of incidental
         variations    in   appearance     do     not   prove    undue
         suggestiveness. Kearney, 92 A.3d at 66. Photographs in
         a lineup 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.


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         Commonwealth v. Fisher, 769 A.2d 1116, 1126-1127
         (Pa. 2001).

                In the instant case . . . the photographic lineup was
         not unduly suggestive. . . . The women depicted in the
         photographs all exhibit very similar facial features and hair
         styles and [Dupont’s] photograph does not stand out among
         the others, despite her being the only one pictured with an
         eyebrow piercing. In fact . . . the large, dark ear piercings
         of a different women stand out more than the barely visible
         piercing on [Dupont’s] eyebrow. Furthermore, although it
         does appear as though the background of [Dupont’s]
         photograph is slightly lighter than the other photographs,
         the backgrounds remain similar, and the [suppression
         court] does not find that the slight variation causes it to
         stand out to a substantial degree. The most significant
         difference in the photographs is the slightly narrower width
         of [Dupont’s] photograph, which causes a slightly wider gap
         between [Dupont’s] photograph and the next photograph.
         While the gap is noticeable . . . it [is not] significant or
         unduly suggestive. Most importantly . . . there is no
         indication that the identification procedure was so
         impermissibly suggestive as to give rise to a very substantial
         likelihood of irreparable misidentification.

Trial Court Opinion, 2/1/19, at 6-8.

      Our review of the photo array confirms these findings. The thorough,

well-reasoned analysis by the learned Judge Howard F. Knisely dispenses with

any claim that the photo array was unduly suggestive. We therefore adopt

his analysis as our own and conclude that the suppression court’s decision to

deny Dupont’s pretrial motion was constitutionally sound.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/11/2020




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