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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 CAREY BILLUPS                           :   No. 2524 EDA 2017

                    Appeal from the Order July 31, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0014851-2013

BEFORE:    BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:                    FILED

SEPTEMBER 19, 2018

      I agree with my esteemed colleagues that the trial court did not abuse

its discretion when it denied the Commonwealth’s motion for recusal.

However, I would hold that the Commonwealth did not waive its challenge to

the trial court’s order granting Appellee’s suppression motion, and that the

order should be reversed.

      My review of the record reveals the following facts of import. Appellee

did not file a written suppression motion. Rather, he made a motion orally at

the time the case was scheduled for trial:

            Your Honor, for the record this is a motion to suppress the
      [out-of-court] identification . . . made of [Appellee] by the
      Commonwealth’s witness back on August 23, 2013. It was
      actually made early morning on the 24th, so I’m going to include
      both just to cover my butt for the identification.




____________________________________
* Former Justice specially assigned to the Superior Court.
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            The bottom line is this, Your Honor, under the Fourth and
     Fourteenth Amendments of the Federal Constitution and the
     Broader Protections afforded under Article 1, Section 9, the police
     officers, when they encountered Mr. Billups, had no reason to stop
     him whatsoever. There was no reasonable suspicion and certainly
     no probable cause prior to this unconstitutional identification.

           The bottom line is this: my client is standing outside.
     Something happens somewhere else. Officers, based on what
     they hear on the radio call and what they had, see my client with
     friends, and they stopped him. I’m arguing to the Court that at
     the point of interaction, the Constitutional, both State and Federal,
     require some level of suspicion -- a reason to stop him and
     investigate these gentlemen. They didn’t fit any flash that came
     out. Nothing in their actions when the officers encountered them
     led them to believe they were engaged in criminology. No one
     ran. No one was belligerent. Everyone cooperated and did what
     they were told to do by the police officers.

            The Commonwealth has a burden to demonstrate at that
     point, the moment of the interaction, that a seizure didn’t occur.
     I’m not suggesting to the Court that police officers do not have a
     right to stop and investigate, but you have to generate and
     articulate the reason for that investigation. I submit to this Court,
     there was none, as it related to the interaction between [Appellee]
     and the police officers.

            What I’m asking the Court to suppress is the out-of-court
     identification made by the complainant, and obviously I’m going
     to ask you to also consider suppressing the in-court identification.
     As you know, the standard for that is, even if the Court agrees
     with me and suppresses the out-of-court identification, if the
     Commonwealth could put forth independent reasons as to why the
     complainant would have been able to identify my client anyway,
     then, of course, you could ignore my request and let the in-court
     stand.

            I submit to the Court that there was no photographic array
     made that night, no photographic identification made. The only
     identification was right there on the street.        She had no
     opportunity to see him after that fact until she came to court and
     no contact with my client at all prior to that. So there would not
     be any independent basis for that in-court ID to stand, if the Court
     would have granted my motion. I’m asking you to include, within

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      my things that I’m asking to suppress, both the in-court and out-
      of-court identification of my client.


N.T., 5/31/15, at 3-5. At the conclusion of the second hearing on the motion,

Appellee, through counsel, reiterated the bases for the motion to suppress:

            If the Court recalls the grounds for my motion, I challenged
      the reasonable suspicion that the officers would have had to stop
      my client, the lack of criminal activity as it relates to my client and
      the two cohorts that were with him at the time the officer observes
      him, and the Lieutenant’s testimony right now based on some
      vague description.

N.T., 12/31/15, at 28.       Appellee contended that the stop violated his

constitutional rights, and that, therefore, the trial court should “suppress the

identification and everything that flow[ed] there[from].” Id. at 36.

      The trial court made the following ruling on the record.

      The police never called the complaining witness. The husband
      called the complaining witness, which leaves me to believe why
      would the complaining witness say the police called her. And
      when the husband called her it’s more likely than not he said,
      “Hey, the guy that robbed your purse is down here and the police
      have him.” It shines a light, not maybe intentionally, but the
      complaining witness wasn’t being truthful in how she got to the
      scene and what she was expecting when she got there.

            Based on that and her own testimony of the vagueness of
      why she picked this defendant out and that she did expect the
      defendant to be there and that it was her husband who called her
      and gave her the information as to what to expect when she got
      there and what was waiting there because the Lieutenant didn’t
      stay with the husband when he called her, I find that her
      testimony was skewed and it’s not believable from the point of
      view of making a good identification and I grant the motion to
      suppress.

Id. at 47-48.



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      The Commonwealth immediately noted that “the basis for Your Honor’s

ruling is not what this motion is about. The motion is whether the out-of-

court identification was unduly suggestive.”      Id. at 48.     The trial court

responded “And I find it is.” Id. at 49. The trial court elaborated as follows.

            I find that it is because for first time today I learned the
      police did not call this complaining witness in an unsuggestive tone
      and tell her to come down and make an identification of three
      males. I found out today that the husband called in a false police
      report of three men with a gun involving a white Infiniti that had
      no testimony of prior involvement into this –

            ....

              I found that for the first time coming out, I was actually
      taken aback with shock. The husband called the complaining
      witness and told her to come down and why to come down. That’s
      highly suggestive in and of itself. He’s out on the street searching
      for these people. He wasn’t even at the scene and the description
      she gave prior to that was speculative at best. So I find that the
      husband’s involvement, making the call to bring her down with
      her own answer to the question was, did you expect to find the
      person there when you got there is absolutely, “Yes.” I find that
      . . . she wasn’t honest when she testified.

Id. at 49-50.

      This Court reversed, noting that the record contained no evidence of the

substance of the conversation between the complainant and her husband,

and, thus, nothing to support the trial court’s suggestion that the husband

tainted the complainant’s identification.   Commonwealth v. Billups, 170

A.3d 1244 (Pa.Super. 2017) (unpublished memorandum at 8). During the

proceedings following this Court’s remand, the trial court indicated that its

“ruling in this case was totally and only based on the lack of credibility of the



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complaining witness.”     N.T., 7/31/17, at 4.     After detailing the specific

testimony it disbelieved, the court reiterated:

      my ruling on this is the motion to suppress was based solely and
      only on the lack of credibility of the complaining witness and that’s
      why the motion to suppress was granted and that’s why it is still
      granted, and if there’s any problem with that, then you’re free to
      take it back for an appeal.

Id. at 5.

      The Commonwealth indeed filed another appeal, claiming in its

voluntarily-filed 1925(b) statement that the trial court “erred in re-imposing

its order suppressing identification evidence[.]”         Statement of Errors

Complained of on Appeal, 8/8/17. In its Rule 1925(a) opinion, the trial court

merely rehashed the evidence and stated without reference to any legal

authority that it did not err in granting suppression because “The

circumstances surrounding Mrs. Briggs’s identification of Appellee is highly

suggestive when viewed in tandem.” Trial Court Opinion, 10/19/17, at 11.

      The Commonwealth argues before this Court that the ruling was in error

because the record contains no indication that the police did anything to

suggest to the complainant that Appellee, rather than one of the other men

present for the on-scene lineup, was the person who stole her purse.

Commonwealth’s brief at 12. The learned majority finds the claim waived

because the Commonwealth did not adequately identify it in its Rule 1925(b)

statement. Majority memorandum at 9. I disagree.

      As the above quotations from the record reveal, both Appellee and the

Commonwealth have maintained all along that the suppression motion was

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based upon the alleged violation of Appellee’s constitutional rights by an

unduly-suggestive police lineup.      The Commonwealth raised the issue it

argues on appeal before the trial court, and it is the obvious basis for its

statement that the trial court erred in again granting the suppression motion.

Accordingly, I would hold that the issue is preserved for our review.      See

Pa.R.A.P. 1925(b)(4)(v) (“Each error identified in the Statement will be

deemed to include every subsidiary issue contained therein which was raised

in the trial court[.]”); see also Commonwealth v. Laboy, 936 A.2d 1058,

1060 (Pa. 2007) (holding Superior Court erred in finding waiver of sufficiency

challenge based upon insufficiency specific statement in straightforward case

with small evidentiary record).

      Turning to the merits of the issue, it is clear from the record that the

trial court’s basis for granting suppression had absolutely nothing to do with

any violation of Appellee’s constitutional rights.

      “Suggestiveness arises when the police employ an identification

procedure that emphasizes or singles-out a suspect.”      Commonwealth v.

Davis, 17 A.3d 390, 394 (Pa.Super. 2011) (emphasis added). “A primary aim

of excluding identification evidence obtained under unnecessarily suggestive

circumstances is to deter law enforcement use of improper procedures in the

first place. This deterrence rationale is inapposite in cases, like [the instant

case], where there is no improper police conduct.”             Perry v. New

Hampshire, 565 U.S. 228, 241 (2012). Stated another way, “the purpose of

a suppression order regarding exclusion of identification evidence is to prevent

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improper police action.    Thus, where a defendant does not show that

improper police conduct resulted in a suggestive identification,

suppression is not warranted.” Commonwealth v. Lark, 91 A.3d 165,

168-69 (Pa.Super. 2014) (emphasis added).

      In the absence of undue suggestiveness, disbelief of a lay witness is no

reason to suppress an identification. See, e.g., Perry, supra at 248 (“[T]he

Due Process Clause does not require a preliminary judicial inquiry into the

reliability of an eyewitness identification when the identification was not

procured under unnecessarily suggestive circumstances arranged by law

enforcement.”) (emphases added); Commonwealth v. Fulmore, 25 A.3d

340, 347 (Pa.Super. 2011) (explaining that the trial court’s ruling “confuses

the credibility of the identification with a claim of undue suggestiveness”).

      As the record in this case does not support a finding that any state actor

improperly influenced the complainant’s identification of Appellee, there is no

legal basis to suppress that identification.   Therefore, I would reverse the

order granting Appellee’s suppression motion and remand the case for trial,

at which the fact finder may decide whether the complainant’s identification

of Appellee is worthy of belief.




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