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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                  v.                     :
                                         :
LELAND DAVIS,                            :          No. 618 WDA 2013
                                         :
                       Appellant         :


        Appeal from the Judgment of Sentence, December 4, 2012,
            in the Court of Common Pleas of Allegheny County
             Criminal Division at No. CP-02-CR-0015949-2010


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                     FILED MAY 11, 2015

     Leland Davis filed this timely appeal from the judgment of sentence

entered on December 4, 2012, in the Court of Common Pleas of Allegheny

County. We affirm.

     The facts, as stated by the trial court, are as follows.

                  On October 25, 2008, Tamir Thomas attended
           a birthday party for Jason Lewis at the Elks Club in
           McKeesport, Allegheny County. Appellant was also
           in the Elks Club that evening, wearing a black and
           white baseball cap. Parts of his movement inside the
           club were captured by video surveillance equipment.
           Shortly before 3:00 A.M., Thomas and Lewis left the
           Elks Club and began to walk down Walnut Street
           toward their car. At the same time, several police
           officers were patrolling the area for crowd control as
           patrons exited the Elks Club.

                 As Thomas and Lewis were walking on Walnut
           Street toward 12th Street, Appellant approached
           Thomas from behind and shot him once in the back
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          of the head. Thomas immediately fell to the ground.
          Lewis did not see Appellant but instead fell to the
          ground for cover when he heard the gunshot. After
          a few seconds[,] Lewis tried to help Thomas stand
          up until he realized that Thomas had been shot in
          the head and was fatally wounded. Thomas was
          pronounced dead on the scene; he died as a result of
          a single penetrating gunshot wound to the head
          which caused immediate lethal injury to the left
          cerebellum and brain stem.

                Several officers arrived on scene almost
          immediately after hearing the single gunshot. As
          Officer Jon Harrison was driving towards the scene
          on 12th Street, he saw Appellant running towards
          him with a gun in his hand and away from the area
          of the shooting. Appellant was wearing the same
          black and white baseball cap he was wearing in the
          Elks Club. Officer Harrison immediately exited his
          vehicle, drew his weapon, and ordered Appellant to
          stop. Appellant ignored him and ran down Tube
          Works Alley.

                Officer Harrison pursued Appellant down the
          alley, continuously yelling for Appellant to stop.
          Appellant lost his footing and fell in front of a white
          vehicle, and Officer Harrison took cover behind the
          vehicle. As Officer Harrison approached Appellant,
          he came within ten feet of him and noticed that his
          firearm and hat were gone. Appellant continued to
          disobey Officer Harrison’s orders to remain still.
          Appellant managed to regain his footing and ran
          away from Officer Harrison, this time climbing over a
          fence and ultimately escaping.

                 Police recovered a semiautomatic pistol
          ([.]40 caliber Smith & Wesson Glock) and a black
          and white hat from underneath the white vehicle that
          Appellant fell in front of during the foot chase. A
          jacket was also found where Appellant climbed over
          the fence. The recovered gun was test fired; the
          cartridge casings were compared to the cartridge
          casing recovered outside the Elks Club where
          Thomas was shot, and the bullet fragment found


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             within Thomas’s brain was also compared to a test
             fired bullet. Based on this analysis, the crime lab
             determined that both the cartridge and the bullet
             fragment were discharged from that firearm. Based
             on the identification of Appellant from the
             surveillance video, a warrant was obtained to collect
             Appellant’s DNA. DNA evidence recovered from the
             pistol and hat indicated that Appellant could not be
             excluded as a contributor.

Trial court opinion, 6/10/14 at 5-7 (citations to the record omitted).

      Appellant      was    charged    with    one   count   of    criminal   homicide,

18 Pa.C.S.A. § 2501(a), for the shooting death of Thomas, one count of

carrying a firearm without a license, 18 Pa.C.S.A. § 6106(a), and one count

of person not to possess a firearm, 18 Pa.C.S.A. § 6105.                  An omnibus

pre-trial   motion    was    filed   seeking   suppression    of    Officer   Harrison’s

identification and also to suppress the DNA and accompanying test results.

Following a hearing on January 5, 2012, the motion was denied.

      A jury trial commenced on August 30, 2012.                   At the close of the

evidence, the defense moved for judgment of acquittal, which was denied by

the court. On September 4, 2012, appellant was convicted of third degree

murder and carrying a firearm without a license.             Immediately thereafter,

the Honorable Edward J. Borkowski found appellant guilty of persons not to

possess a firearm. On December 4, 2012, appellant was sentenced to 20 to

40 years’ imprisonment for third-degree murder and a consecutive term of

3 to 6 years for carrying a firearm without a license; no further penalty was

imposed for the other firearms count.                 On December 6, 2012, a



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post-sentence motion was filed challenging the weight of the evidence; the

motion was denied on March 12, 2013.

      A timely notice of appeal was filed. (Docket #20.) Appellant complied

with the trial court’s order to file a concise statement of errors complained of

on appeal pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial

court has filed an opinion.      Appellant presents the following claims for

review:

            [I].   Did the trial court err when it denied
                   [appellant’s]      Motion       to       Suppress
                   Officer Harrison’s in[-]court identification when
                   evidence     of   record    demonstrated      that
                   Officer Harrison lacked the ability to make a[n]
                   independent identification of [appellant] at the
                   time of the incident here in question and only
                   identified [appellant] when he saw him at a
                   preliminary hearing dressed in a jail uniform?

            [II.] Did the trial court err when it denied
                  [appellant’s] Motion to Suppress the search
                  warrant for [appellant’s] DNA where said
                  search warrant was not based on probable
                  cause and/or where said search warrant
                  contained material misrepresentations of
                  Jameelah Miller[1] thereby rendering it invalid?

            [III.] Did the trial court err when it denied
                   [appellant’s] Motion for Judgment of Acquittal
                   where the Commonwealth failed to prove
                   beyond a reasonable doubt that [appellant]
                   was the individual who shot the victim herein?



1
   Miller identified appellant after watching the video surveillance footage.
Miller, who had known appellant for six or seven years, was introduced to
appellant by appellant’s brother. Miller had also dated one of appellant’s
friends.


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Appellant’s brief at 10.2

      The first two issues concern the denial of appellant’s motion to

suppress.    Our scope and standard of review from the denial of a

suppression motion are well settled:

            An appellate court’s standard of review in addressing
            a challenge to a trial court’s denial of a suppression
            motion is limited to determining whether the factual
            findings are supported by the record and whether
            the legal conclusions drawn from those facts are
            correct. [Because] the prosecution prevailed in the
            suppression court, we may consider only the
            evidence of the prosecution 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 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. Reese, 31 A.3d 708, 721 (Pa.Super. 2011) (citations

omitted).

      Appellant first argues that the trial court erred in denying his motion to

suppress the identification of him by Officer Harrison. Appellant argues that

due to the “brief nature of their encounter, the highly charged atmosphere

immediately subsequent to a shooting incident, the lack of adequate lighting,

and the period of time between the shooting and the highly suggestive

in[-]court identification” Officer Harrison’s identification was unreliable.



2
  Additional issues contained in his Rule 1925(b) statement have not been
presented by appellant to our court in his brief; hence, we deem them to
have been abandoned.


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(Appellant’s brief at 14.)     While appellant concedes that the officer

demonstrated certainty at the preliminary hearing when he identified

appellant, he points out that this occurred when appellant was in a prison

jumpsuit and in shackles, “leaving no possibility of mistaking who was in

Court to answer the charge of criminal homicide.” (Id. at 19-20.)

      After a thorough review of the record, appellant’s brief, the relevant

law, and the well-reasoned opinion of the trial court, we hold this issue is

without merit. The trial court’s opinion correctly disposes of this suppression

issue, and accordingly, we dispose of appellant’s issue on the basis of that

opinion. (See trial court opinion, 6/10/14 at 7-11.)3

      Next, appellant claims the trial court erred in failing to grant his

motion to suppress DNA evidence. Appellant argues the search warrant for

the DNA was not supported by probable cause.        (Appellant’s brief at 22.)


3
  Regardless, the error was harmless. We agree with the Commonwealth
that any error in the admission of the officer’s identification would be
harmless as expert testimony established that appellant was a major
contributor of the DNA evidence detected on both the gun and the baseball
cap found. Dr. Mark Perlin, an expert in the field of DNA analysis, concluded
that a match between the DNA evidence collected from the firearm and
appellant’s DNA was 18.6 billion times more probable than a coincidental
match to an unrelated African American. (Notes of testimony, 8/30/12-
9/4/12 at 411.) Dr. Perlin also opined that the match between the DNA
evidence collected from the baseball cap and appellant’s DNA was 89
quadrillion times more probable than a coincidental match to an unrelated
African American. (Id.) Additionally, Walter Lorenz, an expert in forensic
biology and DNA analysis, determined that with regard to the baseball cap,
the probability of randomly selecting another African American with the
same DNA profile as appellant was 1 in 5.7 quadrillion. (Id. at 354-355.)
Thus, even if the identification had been erroneously admitted, such an error
would have been harmless given the DNA evidence.


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Appellant   also   claims   that   the    search   warrant   contained    material

misrepresentations by Miller. (Id. at 23.)

     At the outset, we agree with the trial court and the Commonwealth

that appellant’s argument concerning Miller is waived.       This claim was not

raised in the motion to suppress or at the suppression hearing.          It is well

settled that issues not raised in the trial court are waived for purposes of

appeal. Pa.R.A.P. Rule 302(a), 42 Pa.C.S.A.

     We now turn to the claim concerning whether the warrant was

supported by probable cause.       Our standard of review, however, does not

look at each individual circumstance in determining if there is probable

cause, rather we look to the circumstances as a whole.

            The standard for evaluating whether probable cause
            exists for the issuance of a search warrant is the
            totality of the circumstances test as set forth in
            Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76
            L.Ed.2d     527    (1983)     and   adopted    by   the
            [Pennsylvania] Supreme Court in Commonwealth
            v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925
            (1985). Commonwealth v. Jones, 542 Pa. 418,
            424, 668 A.2d 114, 116 (1995). A magistrate is to
            make a practical common-sense decision whether,
            given all the circumstances set forth in the affidavit
            before him, including the veracity and basis of
            knowledge of persons supplying hearsay information,
            there is a fair probability that contraband or evidence
            of a crime will be found in a particular place. Id. at
            424, 668 A.2d at 116-117 (citations omitted).

Commonwealth v. Gindlesperger, 706 A.2d 1216, 1219 (Pa.Super. 1997)

(internal quotation marks omitted), affirmed, 743 A.2d 898 (Pa. 1999),

cert. denied, Pennsylvania v. Gindlesperger, 533 U.S. 915 (2001). In


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reviewing the validity of a search warrant, the “reviewing court is limited to

determining whether there is substantial evidence supporting the issuing

authority’s   decision       to    approve   the    warrant.”   Commonwealth        v.

Cramutola, 676 A.2d 1214, 1216 (Pa.Super. 1996).

      Reviewing the affidavit here, we find the trial court properly concluded

there was a substantial basis for the issuing magistrate to conclude probable

cause existed that appellant was connected to the murder of Thomas. The

following circumstances were set forth in the affidavit: Thomas was shot in

the back on October 25, 2008, at approximately 3:12 a.m. near the Elks

Club; Officer Harrison heard the gunshot and immediately observed a black

male holding a handgun running east on 12th Street; Officer Harrison

ordered the man to stop and he did not comply; during the pursuit, a

baseball cap fell off the suspect’s head and the suspect dropped a Glock 23

.40 caliber S&W handgun; the suspect also stripped off the jacket he was

wearing   and    it   fell    to    the   ground;    the   suspect   evaded   capture;

Officer Harrison described the suspect as a light skinned black male

approximately 6’0” tall with a thin build in his early 20s; the officer stated

the suspect was wearing a dark coat and a striped baseball cap; the mobile

crime unit collected the gun, hat, and jacket for DNA testing; a detective

reviewed surveillance video from the Elks Club and observed an individual

fitting Officer Harrison’s description; on July 8, 2010, Miller viewed the video

surveillance and identified the individual in the video wearing a baseball cap



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with a large letter “B” as appellant; Miller based her identification on the fact

that she had known appellant for six or seven years, knew appellant’s

brother, and had previously dated appellant’s friend.        (See Docket #6.)

Clearly, the affidavit of probable cause was sufficient for a search warrant to

issue.     An officer chased a person observed running from the scene of

Thomas’ shooting. The officer observed this person carrying a gun which he

discarded during the chase. The police were also able to obtain the ball cap

the suspect was wearing as well as the coat he took off. The Commonwealth

was able to obtain an identification of appellant via a surveillance tape from

a person who had known appellant for approximately six or seven years.

There was more than a fair probability that appellant’s DNA could match that

recovered from the gun and baseball hat collected from the scene. Contrary

to appellant’s assertions, the affidavit of probable cause contained detailed

information which established a fair probability that the requested search

would uncover DNA evidence resulting in a match with appellant’s DNA.

         Appellant’s third claim concerns whether the trial court erred when it

denied appellant’s motion for judgment of acquittal.      Appellant argues the

Commonwealth failed to prove beyond a reasonable doubt that appellant

was the individual who shot the victim. (Appellant’s brief at 27.) Appellant

states that the Commonwealth’s evidence only demonstrates that Thomas

was shot and killed by a firearm that had appellant’s DNA on it but there was

no evidence to indicate appellant fired the weapon.       (Id. at 31.)   Rather,



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appellant argues the jury engaged in “speculation and conjecture” as they

were presented with nothing more than circumstantial evidence when it

concluded he acted with malice. (Id. at 28.) We disagree.

      Our standard of review of appellant’s claim that the court erred in

denying his motion for judgment of acquittal is as follows:

            A motion for judgment of acquittal challenges the
            sufficiency of the evidence to sustain a conviction on
            a particular charge, and is granted only in cases in
            which the Commonwealth has failed to carry its
            burden regarding that charge.

Commonwealth v. Foster, 33 A.3d 632, 634-635 (Pa.Super. 2011).

      Following our review of the record, appellant’s brief, the relevant law,

and the well-reasoned opinion of the trial court, we hold this issue is without

merit.   The Commonwealth presented sufficient evidence to establish

appellant was the individual who shot the victim and possessed the firearm.

The trial court’s opinion correctly disposes of this issue, and accordingly, we

dispose of appellant’s issue on the basis of that opinion.    (See trial court

opinion, 6/10/14 at 15-20.)

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/11/2015




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