J-A17019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

KAI KPAAN

                        Appellant                 No. 2469 EDA 2013


            Appeal from the Judgment of Sentence June 17, 2013
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0014452-2011


BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J.                    FILED NOVEMBER 19, 2014

     Appellant, Kai Kpaan, appeals from the judgment of sentence entered

June 17, 2013, by the Honorable Barbara A. McDermott, Court of Common

Pleas of Philadelphia County. We affirm.

     We take the underlying facts in this matter from the trial court’s

October 18, 2013, opinion.

            On the morning of November 10, 2011, Eunice Beyan
     drove to a Philadelphia-area [p]ost [o]ffice near 2900 S. 70th
     street in her mother’s Nissan Altima. She went into the post
     office, and when she came out again, at approximately 10:45
     a.m., she sat in the car and began entering the information for
     her next destination into her navigation device. As she was
     doing so, [Kpaan] opened the car door and held a gun to her
     side. He told Beyan to put the key in the ignition and get out of
     the car. Because this particular model of vehicle did not have a
     traditional key ignition, Beyan said she could not do that.
     [Kpaan] said “Do you think I’m playing with you? I’ll shoot you.
     Put the key in the ignition.” When it became clear that this was
     not possible, he ordered her out of the car and attempted to
     start it. He was unable to do so, and he then ordered her back
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     into the car in order to start the engine. Beyan started the car,
     and as she was relinquishing the driver’s seat to [Kpaan], she
     reached for her purse. [Kpaan] told her to leave everything in
     the car and go. She left her purse, wallet, and cellular phone in
     her vehicle, and walked away. [Kpaan] told her “don’t look
     back.” N.T. April 15, 2013, pp. 45-52; Commw. Exh. 1.

            During the investigation, Beyan called T-Mobile, her
     cellular service provider, to find out whether it was possible to
     track the location of her phone. They informed her that it was
     not, but she logged into her T-Mobile account and noticed some
     calls made after her phone was stolen. She gave the phone
     numbers of those calls to the investigating detective. Id. at 56-
     57.

           On November 11, 2011, the day after the robbery, a
     detective came to Beyan’s home and showed her a photo array
     containing eight photographs, one of which depicted [Kpaan].
     She circled [Kpaan’s] picture, and wrote underneath it her name,
     the date, the time, and “100% sure (no doubt)”. This photo
     array, thus marked, became Commonwealth Exhibit 11. After
     she identified [Kpaan], her immediate family members looked at
     his photograph. Id. at 57-61.

            On the night of November 20, 2011, Beyan went to the
     scene of a party to identify [Kpaan], after her stepbrother told
     her stepfather that he had seen [Kpaan] at the party. Police
     officers met Beyan and her stepfather at the party, where a
     bouncer brought [Kpaan] outside to Beyan, who identified him
     as the man who robbed her. The officers then attempted to take
     him into custody, but [Kpaan] ran. The officers gave chase, and
     after [Kpaan] was caught, Beyan was taken to that location
     where she identified him again. Id. at 61-68.

            [Kpaan was arrested and charged with Robbery, Robbery
     of a Motor Vehicle, Terroristic Threats, Simple Assault, Reckless
     Endangerment of Another Person (REAP), Possession of an
     Instrument of Crime, and numerous firearm charges. At trial,]
     Detective Vincent Parker testified that he was given the phone
     numbers that had been called on Beyan’s cell phone after the
     robbery, and that when he called one of them, a female
     individual who identified herself as Alexis Rivera answered the
     phone. He met with Rivera, and later prepared warrants for
     Beyan’s phone records as well as Rivera’s.        Those records



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       confirmed that at 11:20 a.m. on the day of the robbery, Beyan’s
       phone was used to call Rivera. Id. at 92-104.

             Teresa Paris, Custodian of Records for the Philadelphia
       State Prison, keeps records of visits to incarcerated people. She
       confirmed that Alexis Rivera had visited [Kpaan] on 21 occasions
       during his pretrial detention. Id. at 153-158. On April 15, 2013,
       Alexis Rivera came to the Criminal Justice Center, as she had
       been subpoenaed to testify. According to Detective Parker, Ms.
       Rivera had been waiting in the hallway outside the courtroom
       where the proceedings were held, and she was crying, shaking,
       and speaking loudly. When Parker met her in the hallway, she
       told him that she was going to the bathroom, and then she left
       the area and did not return. Id. at 110-112.

             The defense presented alibi witness Margaret Kpaan,
       [Appellant’s] mother, who testified that [Kpaan] was at home all
       day on the day of the robbery, and that at the time of the
       robbery, he wore a goatee and a moustache. Id. at 167-172.
       Beyan had told the police that the person who robbed her was
       clean-shaven. Id. at 73.

                                      *        *   *

Trial Court Opinion, 10/18/13 at 2-4.

       On April 16, 2013, a jury convicted Kpaan of all charges. 1 On June 17,

2013, the trial court imposed an aggregate term of 7½ to 25 years’

imprisonment. This appeal followed.

       Kpaan raises the following issues for our review.

       A. Whether the court erred in denying that the evidence of visits
          to [Kpaan] in prison by a person allegedly named Alexis
          Rivera, coupled with the hearsay testimony that a person also
          named Alexis Rivera received a phone call from the victim’s
          cell phone shortly after the robbery, without any testimony by

____________________________________________


1
  The Simple Assault and REAP charges were nolle prossed, and the trial
court additionally convicted Kpaan of Persons not to Possess Firearms.



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J-A17019-14


         any person named Alexis Rivera at trial, was more prejudicial
         than probative?

      B. Whether it was error for the court below to allow the
         prosecution to bolster its purported identification evidence by
         showing that [Kpaan] ran away from police on seeing them
         outside a bar, while denying the defense any opportunity to
         show reasons why he would do so, independent of any
         “consciousness of guilt”? Thus, the court invited the jury to
         draw the inference that [Kpaan’s] “flight” alone, was enough
         to allow police, and the law, to infer “probable cause of
         guilt.[”]

      C. Whether the contradictory identification testimony as to
         whether the robber had face hair or was smooth shaven
         necessitated a “Kloiber” instruction to the jury?

      D. Whether it was error, and an abuse of discretion, for the court
         to allow [Kpaan’s] identification photograph upon which the
         complainant had hand-written virtually the same words to
         which she testified, about her “certainty” of [Kpaan’s]
         identification, to be given to the jury for review during
         deliberation, thus permitting the jury to have the equivalent
         of a transcript of the complainant’s trial testimony during
         deliberations?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

      Preliminarily, we note that issues B. and C. Kpaan now raises on

appeal were not included in the court-ordered Rule 1925(b) Statement of

Matters Complained of on Appeal filed on October 15, 2013.                 Rule

1925(b)(4)(vii) explicitly states that “[i]ssues not included in the Statement

and/or not raised in accordance with the provisions of this paragraph (b)(4)

are waived.”   In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306

(1998), the Pennsylvania Supreme Court reaffirmed the principle that any

issues not raised in a Rule 1925(b) statement will be deemed waived. 553

Pa. at 420, 719 A.2d at 309.      We are therefore constrained to find that


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J-A17019-14



Kpaan has waived issues B. and C. by failing to raise them in his court-

ordered 1925(b) statement.

       We proceed to address the remaining issues Kpaan has preserved on

appeal.    With our standards of review in mind, we have examined the

certified record, the briefs of the parties, Judge McDermott’s memorandum

opinion, and the applicable law, and we find that the lower court ably and

methodically addressed the issues Kpaan presented on appeal.2 Accordingly,

we affirm on the basis of Judge McDermott’s memorandum opinion.          See

Trial Court Opinion, 10/18/13.

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/2014




____________________________________________


2
   The trial court additionally addresses a third issue regarding the
Commonwealth’s cross-examination of Kpaan’s mother. As Kpaan has not
included this issue in his appellate brief, we find that he has abandoned this
issue on appeal.



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