J-S44015-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                         Appellant

                    v.

RASHI ANDERSON,

                         Appellee                  No. 1236 EDA 2016


                 Appeal from the Order Entered April 4, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0000878-2012


BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY BENDER, P.J.E.:                FILED SEPTEMBER 06, 2017

      The Commonwealth appeals from the suppression court’s order,

granting Appellee’s, Rashi Anderson, pretrial motion to suppress two out-of-

court photo array identifications made by the victims in this case.     After

careful review, we affirm.

      The suppression court summarized the facts adduced from the

suppression hearing as follows:

             Michael Cordrey testified that on September 25, 2011, he
      and Nicholas Meiring were walking along Spruce Street toward
      42nd Street at approximately 1:30 a.m. Upon reaching the …
      corner of 42nd Street, they were held up from behind by two
      persons. One of the persons put a gun to Mr. Cordrey's left hip
      and ordered him to walk down a nearby alleyway. He could not
      recall whether he saw the person's face at this point. He
      followed the order and then went down to the ground in a fetal
      position. The person proceeded to go through Mr. Cordrey's
      pockets and took his phone, wallet, and cash. Both persons then
      quickly left the scene by running down 42nd Street. Mr. Cordrey
J-S44015-17


     and Mr. Meiring left immediately afterwards to attempt to find a
     police officer in the area.

             After flagging down a police officer, Mr. Cordrey gave a
     statement around 2:50 a.m. to Detective Gregg Rodham of the
     University of Pennsylvania Police Department ("Penn Police").
     Mr. Cordrey described the perpetrator who held a gun to his hip
     as a black male, 5'10" (five feet, ten inches) in height, weighing
     180 (one hundred eighty) pounds, aged late thirties or early
     forties, medium build, a bald/shaved head, dark complexion, and
     wearing a black t-shirt and jeans. He described the gun used by
     the perpetrator as a black semi-automatic [handgun], not a
     revolver. He had given a nearly identical description to the
     initial officer he flagged down right after the incident.

           On October 14th, Detective Rodham called Mr. Cordrey
     about viewing a photo array to possibly identify one of the
     perpetrators. At the time Mr. Cordrey was visiting friends in
     Princeton, New Jersey, which led Detective Rodham to email the
     photo array to him instead of presenting the array in-person.
     Mr. Cordrey identified [Appellee] as the perpetrator who he
     believed held the gun to his back and robbed him, although he
     was not completely positive at the time. He again later identified
     [Appellee], this time in-court at the preliminary hearing on
     January 20, 2012.

            On cross-examination, Mr. Cordrey testified that he had
     three to four alcoholic beverages on the evening before the
     robbery. He saw the perpetrator holding the gun to his left hip
     for about three to four seconds before being led into the
     alleyway. The sky was dark but there was some artificial lighting
     provided by the street lights at the intersection. He did not
     recall ever looking back at the perpetrator holding the gun as he
     walked in front of them into the alleyway. He was also uncertain
     as to whether he saw either of the perpetrators' faces as they
     ran away from the scene. It then took several minutes for him
     and Mr. Meiring to find a police officer.        They were then
     transported to the Penn Police Station, where Mr. Cordrey gave
     another description of the robber.

          Three weeks later, Officer Rodham contacted Mr. Cordrey
     about viewing the photo array over email. Both Mr. Meiring and
     Mr. Cordrey were visiting friends and staying together in the
     same dorm room/common area. Mr. Cordrey testified that he
     did not recall whether or not he was present when Detective


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     Rodham also contacted Mr. Meiring about viewing the same
     photo array.

        [Defense Counsel] Q. Mr. Cordrey, were you present when
        Mr. Rodman (sic) called Mr. Meiring?

        [Mr. Cordrey] A. I don't know.

        [Defense Counsel] Q. You don't remember?

        [Mr. Cordrey] A. No.

        [Defense Counsel] Q. Is it possible that you don't
        remember?

        [Mr. Cordrey] A. Yes, it's possible. I don't recall, though.

     [N.T. Suppression, 4/1/16, [at] 35.]

           He doubted but was "not really sure" whether he and Mr.
     Meiring used the same computer to view the photo array. [Id.]
     Mr. Cordrey had "no idea" whether he was on the phone with
     Detective Rodham while viewing the photo array. [Id. at 35-36.]
     Nor did he recall how long the conversation lasted or if he
     received the photo array before Detective Rodham initially called
     him.

            Mr. Cordrey could neither give an approximation of how
     long he had access to the photo array before faxing it back to
     Detective Rodham. He could not recall whether he left the room
     when Mr. Meiring viewed the photo array for his own
     identification.

        [Defense Counsel] Q. Mr. Cordrey, do you recall leaving
        the room so that Mr. Meiring could look at the photo array
        or vice versa?

        [Mr. Cordrey] A. I don't know.

        [Defense Counsel] Q. You don't recall?

        [Mr. Cordrey] A. I know I did mine by myself and then I
        might have walked away, while he did his.

     [Id. at 38.]

          Mr. Cordrey testified that the photo array remained in his
     email sent folder until it was automatically deleted at some
     unknown future date. He also testified that during the two-and-

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     a-half hours between receiving the photo array and faxing back
     a potential identification, he spent a "considerable portion of that
     time" looking it over. [Id. at 41-42.] On redirect examination,
     Mr. Cordrey then testified that he did not believe he was on the
     phone with Detective Rodham while viewing the photo array. He
     also testified that he had no reason to go back and look at the
     photo array that remained archived in his email after he
     identified [Appellee].

           On direct examination, Mr. Meiring testified that he and
     Mr. Cordrey were walking along Spruce Street toward 42nd Street
     at approximately 1:30 a.m. The two perpetrators approached
     them at the corner of 42nd Street and one of them stuck a gun in
     his back. The perpetrators told them both to "put your hands
     down, just stay silent, and walk around the corner." [Id. at 45.]
     Once around the corner, the perpetrators took Mr. Meiring's cell
     phone, wallet, a credit card, ID, and some cash. Mr. Meiring
     remained standing throughout the ordeal but could not recall
     what Mr. Cordrey was doing at the time. Mr. Meiring had
     consumed a couple alcoholic beverages earlier in the evening,
     but testified that he did not feel under the influence at the time.
     As the robbers fled the scene, he only saw their faces for a
     couple of seconds.

           Mr. Meiring and Mr. Cordrey ran the opposite way from the
     perpetrators, trying to find anyone with a phone. They found a
     police officer after traveling a few blocks. They both provided a
     description of the perpetrators. The officer then took them to
     the Penn Police Station, where they gave statements to
     Detective Rodham. Mr. Meiring gave a description of one of the
     perpetrators as a black male, around 5'10" (five feet, ten
     inches), and in his late thirties or early forties. He could not
     recall for which of the two perpetrators he provided this
     description.

           On cross-examination, Mr. Meiring testified that he had
     consumed four or five alcoholic beverages earlier in the evening.
     He kept his eyes forward during the robbery and only saw the
     faces of the perpetrators for a couple of seconds as they turned
     back and looked at him and Mr. Cordrey. He could not recall
     whether there were any lights on in the alleyway during the
     robbery.

          In his initial statement to the … Penn Police[], Mr. Meiring
     was unable to describe the person that held the gun to his back


                                    -4-
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     and robbed him beyond that he was a black male with an
     average build wearing a black t-shirt. Mr. Meiring testified that
     he was unsure when he selected [Appellee] in the photo array
     whether [Appellee] specifically robbed him or Mr. Cordrey. He
     testified that he based his identification off of the four to five
     seconds he saw the perpetrators running away from the
     alleyway. When he first viewed the photo array, he immediately
     narrowed it down to No. 5 ([Appellee]) and No. 8. After some
     more time, he selected No. 5 on the photo array. He further
     testified that he assumed that h[e] and Mr. Cordrey used the
     same computer to send back their identifications to Detective
     Rodham. On redirect examination, Mr. Meiring testified that he
     looked at the photo array separately from Mr. Cordrey.

           On direct examination, Detective Rodham testified that he
     was the assigned investigator for the robbery that occurred on
     September 25th. On October 12th, Detective Michael Kimmel of
     the Southwest Division of the Philadelphia Police Department
     contacted Detective Rodham about the recovery of multiple
     pieces of identification belonging to Mr. Cordrey and Mr. Meiring
     that were found on [Appellee]. Detective Rodham prepared a
     photo array that included [Appellee] in position No. 5 among
     eight (8) possible selections. On October 14th, the detective
     contacted Mr. Cordrey and Mr. Meiring about viewing the photo
     array over a computer and sending back their impressions.

            On cross-examination, Detective Rodham testified that it
     was "absolutely not" the Penn Police's standard procedure to
     email a photo array to victims. [Id. at 77.] He further provided
     that it was his personal and professional preference to observe
     someone view a photo array in-person.        Detective Rodham
     created the photo array that included [Appellee] with the
     assistance of a computer program and his own discretion.

           On direct examination, Detective Kimmel testified that on
     September 30th he responded to a domestic assault incident
     involving [Appellee]. In connection to the incident, he and his
     partner arrested [Appellee] and performed a search incident to
     arrest for their safety. Various IDs and credit cards were then
     found on [Appellee’s] person that belonged to Mr. Cordrey and
     Mr. Meiring.




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Suppression Court Opinion (SCO), 11/18/16, at 2-8 (some internal citations

omitted). Following the suppression hearing, the suppression court

      granted in part and denied in part [Appellee’s] Motion to
      Suppress Identification. Th[e suppression c]ourt denied the
      suppression of the in-court identifications.     However, th[e
      suppression c]ourt granted the suppression of the out-of-court
      identification[s] based upon the photo array and based its ruling
      on the totality of the circumstances, finding the identifications
      and process as being mute [sic] based on the circumstances.
      The photo array procedure was done improperly, although at no
      fault of the witnesses, and without evidence of any bad faith on
      the detective's part.

Id. at 8 (internal citations omitted).

      The Commonwealth filed an interlocutory appeal, and certified that the

prosecution would be substantially handicapped by the suppression court’s

order. See Commonwealth’s Notice of Appeal, 4/28/16, at 1 (single page);

see   generally    Pa.R.A.P.   311(d)     (“In   a   criminal   case,   under   the

circumstances provided by law, the Commonwealth may take an appeal as

of right from an order that does not end the entire case where the

Commonwealth certifies in the notice of appeal that the order will terminate

or substantially handicap the prosecution.”).        The Commonwealth filed a

Pa.R.A.P. 1925(b) statement the same day.                The suppression court

subsequently filed its Rule 1925(a) opinion on November 18, 2016.

      The Commonwealth now presents the following question for our

review:

      Did the lower court err in suppressing two armed robbery
      victims' out-of-court identifications, by holding that under all the



                                         -6-
J-S44015-17


     circumstances the photo array from which the victims selected
     [Appellee’s] picture was unduly suggestive?

Commonwealth’s Brief at 4.

           Our standard of review in addressing a challenge to the
     suppression court's granting of a suppression motion is well
     settled.

        When the Commonwealth appeals from a suppression
        order, we follow a clearly defined standard of review and
        consider only the evidence from the defendant's witnesses
        together with the evidence of the prosecution that, when
        read in the context of the entire record, remains
        uncontradicted. The suppression court's findings of fact
        bind an appellate court if the record supports those
        findings. The suppression court's conclusions of law,
        however, are not binding on an appellate court, whose
        duty is to determine if the suppression court properly
        applied the law to the facts.

     Commonwealth v. Miller, 56 A.3d 1276, 1278–1279 (Pa.
     Super. 2012) (citations omitted). “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. Brown, … 996 A.2d 473, 476 ([Pa.] 2010)
     (citation omitted).

Commonwealth v. Korn, 139 A.3d 249, 252–53 (Pa. Super. 2016).

     When determining the admissibility of identification testimony,
     this Court has held that

        suggestiveness in the identification process is a factor to
        be considered in determining the admissibility of such
        evidence, but “suggestiveness alone does not warrant
        exclusion.” A pretrial identification will not be suppressed
        as violative of due process rights unless the facts
        demonstrate that the identification procedure was so
        infected by suggestiveness “as to give rise to a substantial
        likelihood of irreparable misidentification.”

     Commonwealth v. Bruce, 717 A.2d 1033, 1037 (Pa. Super.
     1998) (citation omitted).


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Commonwealth v. Kubis, 978 A.2d 391, 396 (Pa. Super. 2009).

      In determining whether an identification procedure gives rise to a

substantial likelihood of irreparable misidentification, this Court applies a

totality of the circumstances test, using factors originally set forth in Neil v.

Biggers, 409 U.S. 188 (1972).          See Commonwealth v. Edwards, 762

A.2d 382, 391 (Pa. Super. 2000).

      Factors to be considered in evaluating            the   likelihood   of
      misidentification in a particular instance are:

         []the opportunity of the witness to view the criminal at the
         time of the crime, the witness' degree of attention, the
         accuracy of his prior description of the criminal, the level
         of certainty demonstrated at the confrontation, and the
         time between the crime and the confrontation. Against
         these factors is to be weighed the corrupting effect of the
         suggestive identification itself.

      Manson v. Brathwaite, … 432 U.S. [98,] 114 [(1977)]…. See
      also … Biggers, 409 U.S. [at] 199…. The most important factor
      in the totality of the circumstances test is the opportunity of the
      witness to view the suspect at the time of the crime.
      Commonwealth v. Davis, … 439 A.2d 195 ([Pa. Super.] 1981).

Commonwealth v. Derrick, 469 A.2d 1111, 1120–21 (Pa. Super. 1983)

(footnote omitted).

      Instantly,   the   suppression    court   determined    that   “under     the

circumstances, the identification was not reliable due to the impermissible

suggestiveness pervading the improper presentation of the photo array.”

SCO at 10. The suppression court elaborated as follows:

            First, the decision of Detective Rodham to email the photo
      array to the two witnesses is deserving of great scrutiny. During
      his testimony, Detective Rodham conceded that it was
      "absolutely not" the standard procedure of the Penn Police to

                                       -8-
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     email a photo array to victims of a crime. Further, he admitted
     that it was both his professional and personal preference to
     observe in-person a witness's reactions and comments to a
     photo array.     While he believed this exception to standard
     procedure was acceptable due to the witnesses not being
     available in-person on October 14th, the witnesses were only
     temporarily out-of-state.     By allowing Mr. Cordrey and Mr.
     Meiring to view identically constructed photo arrays from likely
     the same computer, while in the same dorm room/common
     area, one after the other, a high risk of error was created. They
     were left completely to their own devices to view the photo array
     and send back their impressions. There exists good reason for
     separating witnesses from each other during the presentation of
     a photo array as it mitigates the potential suggestiveness of the
     identification. Photo arrays are ordinarily conducted with a
     Detective physically present and each witness separated from
     the other.

            Second, the testimony by Mr. Cordrey and Mr. Meiring
     regarding how they conducted the identification procedure
     independent of police observation contained several gaps and
     disparities concerning their recollections. Mr. Cordrey could not
     affirmatively deny that he was not present while Mr. Meiring
     made his own identification based off of the photo array. Mr.
     Cordrey could not recall if he was present while Detective
     Rodham discussed the parameters of the photo array with Mr.
     Meiring over the phone. These fuzzy recollections were neither
     isolated occurrences during the testimony of the witnesses, they
     were among many worrisome details in how the photo array was
     actually administered. Mr. Cordrey was further unsure whether
     [he] and Mr. Meiring utilized the same computer, although Mr.
     Meiring believes they may have. Mr. Cordrey could not recall if
     he left Mr. Meiring to himself to view the photo array. Lastly,
     Mr. Cordrey was left with unrestrained access to the photo array
     until it was automatically deleted by the email program at an
     unknown later date.         Overall, the witnesses could not
     affirmatively corroborate having followed many of the
     instructions given by Detective Rodham. The likelihood of an
     unreliable identification was substantial due to the unmonitored
     presentation of the photo array to the witnesses.
                                     …

     Here, two adult witnesses were left to themselves to view
     identically constructed photo arrays from likely the same
     computer, while staying in the same dorm room/common area,

                                   -9-
J-S44015-17


     one after another, independent from any police observation.
     Simply put, two witnesses should not be left alone together to
     conduct a highly sensitive police identification procedure, the
     risks should be undoubtedly apparent. The detective conceded in
     his testimony how this was very far removed from the standard
     procedure of his department and for good reason. The testimony
     of the witnesses concerning the procedure, full of blurred
     recollections and equivocal denials, could not cure the
     overwhelming deficiencies of how the photo array was
     conducted. This court does not believe there was any bad faith
     on the detective's part nor any fault to the witnesses. However,
     the very substantial likelihood of an unreliable, suggestive
     identification arising from the many errors in how the photo
     array was conducted warrants the suppression of the out-of-
     court identification.

Id. at 10-12.

     The Commonwealth argues that the suppression court abused its

discretion in granting suppression because “the identification procedure was

merely unusual, not improper or suggestive.” Commonwealth’s Brief at 14.

The Commonwealth further contends that the witnesses’ testimony, that

they had followed Detective Rodham’s instructions, “resulted in a procedure

in which each viewed a non-suggestive array independently and reported his

determination.”   Id. at 15.   Essentially, the Commonwealth asserts that

despite the unorthodox procedure, “there was nothing to single out

[Appellee]’s photograph over the other seven in the array.” Id.

     We agree with the Commonwealth that there was nothing inherently

suggestive in the array presented to the victims. Indeed, it does not appear

that the suppression court indicated otherwise.    The suppression court’s

concerns, instead, centered not on the array itself, but the manner in which

it was presented and viewed.      The Commonwealth has offered no legal


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J-S44015-17



authorities suggesting that an otherwise non-suggestive photo array could

not, in at least some circumstances, be presented in a manner that results in

“a substantial likelihood of irreparable misidentification.” Kubis, 978 A.2d at

396 (citing Bruce, 717 A.2d at 1037). Indeed, the applicable factor under

consideration is “suggestiveness in the identification process,” not merely

suggestiveness of the photo array itself. Id. (emphasis added). Clearly, if

while showing an otherwise non-suggestive photo array to a victim, a police

officer pointed to the person under suspicion, the non-suggestive nature of

the photo array would not have rendered the identification made immune

from scrutiny. Indeed, in such circumstances, the non-suggestive nature of

the photo array would not be a significant factor at all. Likewise, here, the

brunt of the suppression court’s analysis was concerned with the manner in

which the array was presented to the victims, and did not suggest that there

were any deficiencies in the array itself.

      Moreover, the suppression court did not express any concern about

the instructions actually given by Detective Rodham to the victims, Mr.

Cordrey and Mr. Meiring.     The court’s concern was with, instead, whether

the victims’ testimony adequately demonstrated that they followed those

instructions.   In this regard, the court found their recollections of what

occurred during the photo lineup distressingly “fuzzy,” SCO at 11, and “full

of blurred recollections and equivocal denials,” id. at 11.   In essence, the

court did not find credible their testimony that they had followed Detective

Rodham’s instructions.     Although not stated precisely as such, the court

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appears to be suggesting that the victims might have collaborated on

making the identification, or at least that the second victim to view the

photo array may have been aware of the first victim’s choice.                The

suppression court also seems to be suggesting that the victims’ testimony

did not do enough to dispel that possibility.

      The Commonwealth argues, however, that the court’s credibility

determinations contradict the court’s maintaining that there was no “fault”

on the part of the witnesses. Id. at 12. The Commonwealth also points to

parts of the victims’ testimony which supported a finding that the

identification procedure was not suggestive, i.e., that they had not

collaborated or that each had not otherwise been aware of the selection

made by the other. Commonwealth’s Brief at 20-22.

      We reject this argument. The court’s findings that the victims’

recollections were not credible, and that they were also not at fault for the

risk of misidentification brought about by the procedure, are not mutually

exclusive conclusions, especially in the circumstances of this case. Because

Detective Rodham was not physically present when they made their

identifications, he could not corroborate that they had followed his

instructions. Moreover, the victims gave their testimony several years after

the events in question, which surely contributed to their inability to recall the

details of the identification procedure. That they could not credibly testify

that Detective Rodham’s instructions were dutifully followed does not imply

that they had intentionally, rather than inadvertently, failed to follow those

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instructions.   Moreover, the Commonwealth’s selective choice to cite

particular answers by the victims does not persuade us that their testimony,

in the aggregate, was unequivocal in this regard.      That the court did not

reject or accept their testimony in toto is not demonstrative that the

suppression court had abused its discretion.

      Moreover, in light of the applicable standard, we find ample reasons in

the record supporting the suppression court’s determination that the

identification procedure bore a high risk of misidentification beyond the

reasons specifically addressed by the court in its opinion.

      First, we consider the “opportunity of the witness[es] to view the

criminal at the time of the crime,” “the witness' degree of attention,” and the

“accuracy of [their] prior description[s] of the criminal[.]” Brathwaite, 432

U.S. at 114.    The robbery occurred at approximately 1:30 a.m.             Both

victims were drinking that evening. N.T., 4/1/16, at 22, 54.     Although Mr.

Cordrey testified that there were street lights, he could not “quantify how

light it was or how dark it was.”    Id. at 10.   Mr. Meiring could not recall

whether the alleyway in which they were taken had any street lights at all.

Id. at 57.

      Mr. Cordrey testified that he initially got a brief look at one of his

assailants when initially confronted with a gun to his hip.    Id. at 25.    He

turned toward the gun and saw the assailant’s face for “about three to four

seconds.”    Id. After being taken into the darker alleyway and robbed, he

said he saw the two perpetrators running away, but was “uncertain about

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J-S44015-17



seeing their faces.”      Id. at 31.     Mr. Cordrey testified inconsistently about

whether he was in the darker alleyway or on a better-lit street when he had

observed the assailant’s face.           Initially, he stated that he turned and

observed the man’s face when he “was being led down the alleyway.” Id. at

9. Later, he testified that he made the observation before he was led down

the alleyway. Id. at 26. When he finally found the police, he described the

suspect as a “[b]lack male, five-ten, 180 pounds, later 30s, early 40s,

medium build, bald or shaved head, dark complexion, wearing a black tee

shirt, and jeans.” Id. at 13.

       Mr. Meiring testified that he only ostensibly observed Appellee while

the assailants were running away. Id. at 46. He was approximately 15 feet

away from them at the time. Id. at 47. He did not testify as to whether he

only observed a profile or the entirety of a face.1         His description of the

assailant given to police immediately after the robbery was very general,

describing a “black male with a black tee shirt and with [an] average build.”

Id. at 59.    In sum, the victims, while under the influence of between 3-5

drinks each, and in far less than ideal lighting, had the opportunity to

observe the assailant later identified as Appellee for a few seconds each.

The descriptions they gave were not entirely inconsistent, but they did differ
____________________________________________


1
  It stands to reason, as a matter of common sense, that the assailant’s
head could not rotate 180 degrees backwards while running away from Mr.
Meiring. Thus, it seems most likely that Mr. Meiring observed the profile of
the man’s face.



                                          - 14 -
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greatly in that Mr. Cordrey gave a far more detailed description as compared

to Mr. Meiring’s very general description.    Notably, neither victim initially

described an assailant with a beard.

      Next we consider “the level of certainty demonstrated at the

confrontation, and the time between the crime and the confrontation.”

Brathwaite, 432 U.S. at 114.         The victims were each shown the same

photo array of eight bearded, bald, black men, including Appellee, three

weeks after the robbery.      Both victims selected Appellee, the fifth photo,

located on the bottom left hand side of the photo array. On the array, Mr.

Cordrey wrote “I believe it was the bottom left, No. 5, however, I’m not

positive. But I do believe he was about five-ten, 180 pounds.” N.T., 4/1/16,

at 17 (emphasis added); see also Commonwealth’s Exhibit 16. When asked

if Detective Rodman had advised him “if the suspect may or may not even

be in the photo array,” Mr. Cordrey answered, “I didn’t even realize it was a

possibility.”   Id. at 18.   When later asked, “when you viewed this photo

array, you were not sure whether it was No. 5?”, he answered, “I did not

have a positive decision.” Id. at 40.

      Mr. Meiring was also equivocal in his selection. Mr. Meiring wrote out

his entire thought process during his selection of No. 5 on the top of the

photo array, as follows: “My first reaction when I saw the photo was #5 and

#8 (bottom right and bottom left). If I had to pick just one, definitely #5.

The men were [of] pretty average build which makes me think it couldn’t be




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2, 6, 7 who seem to be more heavy set.”         Commonwealth’s Exhibit 18

(emphasis added).

      In sum, the record does not tend to establish that either victim

identified Appellee with a high degree of certainty.     Several weeks had

passed since they had the opportunity to observe their assailant.         Mr.

Cordrey was not positive about his selection, and, distressingly, he testified

that he was not even aware of the possibility that the assailant was not one

of the eight persons depicted in the photo array. Mr. Meiring, who had given

a far less detailed description initially, seemed to have equivocated between

two photos, and only selected Appellee after saying, “if I had to pick just

one[.]” Id.

      When added to the factors discussed by the suppression court, we

conclude that the totality of the circumstances in this case tended to show

that there was “a substantial likelihood of irreparable misidentification”

during the unorthodox out-of-court identification procedure which occurred.

While we are reluctant to conclude that the unorthodox nature of that

procedure was itself likely to result in misidentification, we acknowledge and

agree with the suppression court that the victims’ testimony was somewhat

inconsistent with regard to how closely they followed, or understood,




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Detective Rodman’s instructions.2              As noted above, we are particularly

concerned that Mr. Cordrey did not even know that it was possible that his

assailant would not be on the photo array he was shown and, relatedly, that

Mr. Meiring seemed compelled to make a selection. We also deem relevant

the victims’ brief opportunity to view the perpetrators in poor lighting

conditions, the mixed quality of initial descriptions, the discrepancies

between those initial descriptions and the bearded individuals depicted in the

photo array, and the victims’ equivocation regarding their degree of

certainty in selecting Appellee from the photo array. Considering the totality

of all these circumstances, we cannot conclude that the suppression court

abused     its     discretion   when     suppressing    the   at-issue   out-of-court

identifications.

       Order affirmed.

       Judge Musmanno joins this memorandum.

       Judge Shogan notes her dissent.




____________________________________________


2
 To elaborate, we do not consider the mere facts that the photo array was
emailed to the victims and that Detective Rodman was not physically present
when the victims’ selections were made to be dispositive.



                                          - 17 -
J-S44015-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/6/2017




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