J-S71019-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA

                             Appellee

                        v.

    DAQUAN HAMILTON

                             Appellant               No. 1477 EDA 2016


            Appeal from the Judgment of Sentence February 9, 2016
             In the Court of Common Pleas of Montgomery County
               Criminal Division at No: CP-46-CR-0001391-2014

BEFORE: PANELLA, STABILE, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                      FILED SEPTEMBER 18, 2018

        Appellant, Daquan Hamilton, appeals from his judgment of sentence of

life imprisonment for second-degree murder1 and related offenses. We affirm.

        On the evening of December 26, 2013, Appellant and Khaleef Jones

visited an apartment complex in Pottstown.       Appellant told Jones that he

wanted to get his stuff out of one of the apartments. Steven Burns was inside

the apartment with George Hashimbey and Angel Luna.          When Appellant

knocked on the door, Burns opened the door but would not let Appellant

inside. N.T., 6/17/15, at 8-10, 90-96.

        Appellant and Jones left the apartment building, but they returned

shortly after midnight on the morning of December 27, 2015. Before entering
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1   18 Pa.C.S.A. § 2502(b).
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the building, Appellant handed Jones a .380 caliber gun and armed himself

with a silver revolver. Id. at 93-94. Appellant and Jones returned to Burns’

apartment, and Appellant told Jones to cover his face as they entered the

elevator. They knocked on the apartment door, and Burns partially opened

it. Appellant shoved his pistol into Burns’ abdomen and forced his way inside.

Id. at 10-11, 90-96. Burns and Appellant fought on the floor inside the door.

Appellant yelled, “Shoot the nigger.” As they struggled, Appellant fired his

silver pistol, killing Hashimbey. Id. at 12-14, 98-99. Burns testified that he

saw Appellant shoot Hashimbey.     Id. at 14-15.   Jones fired one shot into

Burns’ hip and ran down the stairs. Jones testified that he heard two shots

after exiting the apartment. Id. at 99. Burns went into the hallway to ask a

neighbor for help, and he remained there until police and paramedics arrived.

Id. at 12-17, 98-99. The Commonwealth’s ballistics expert testified that the

bullet recovered from Hashimbey’s body came from a .357 caliber gun, a

different caliber from the gun Jones was carrying. N.T., 6/16/15, at 50.

      Approximately ninety minutes after the shooting, Philadelphia Police

Officer William Lynch stopped Appellant’s car in a high crime neighborhood in

North Philadelphia. When Officer Lynch ran the tags, he discovered a “try-

and-locate” alert. Appellant, who was a passenger in the car, ran when he

saw the police lights, but Jones stayed inside. Police arrested both men and

recovered a .380 caliber gun from Jones’ person during the arrest.         N.T.,

6/16/15, at 122-23. The police impounded the car and obtained a search

warrant to search its passenger compartment.        During the search, they

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recovered two cell phones and a fired .357 cartridge casing. N.T., 6/16/15,

at 130-39. Subsequently, a Montgomery County detective obtained another

search warrant to examine the contents of the cell phones.2

       At the conclusion of trial, the Commonwealth introduced letters that

Appellant sent Jones while both men were incarcerated following their arrest.

The first letter suggested that both men claim that Burns let them enter the

apartment immediately before the shooting, and that Appellant “just came to

get my clothes and see my cousin.”             N.T., 6/18/15, at 21.    “Nobody was

[supposed] to get hurt,” Appellant continued, but Burns caused the shootings

by starting a fight with Appellant. Id. In a second letter, Appellant stated

that the Commonwealth was not offering him a plea bargain and was

threatening to charge him with second-degree murder.                   Id. at 22-23.

Appellant continued:

       I’m sorry for getting you in this shit. My lawyer said if I get on
       the stand, it would do more harm than good. Dam bro, I fucked
       up, but we can’t cry over spilled milk . . . I need you to get on the
       stand and blame everything on [Burns]. Keep your head up. Fuck
       these crackers.

Id. at 23.

       During closing argument, defense counsel did not deny that Appellant

was present in the apartment during the shootings.                Instead, counsel


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2 Appellant sought to suppress the contents of his cell phone in pre-trial
motions, which the trial court denied. The contents recovered from the cell
phones are described in our discussion of the suppression issue on pages 10-
11 below.

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contended that any actions that Appellant took were in self-defense. N.T.,

6/18/15 at 74-93. The jury found Appellant guilty of second-degree murder,

burglary and other offenses. On February 9, 2016, the trial court imposed

sentence. Appellant filed timely post-sentence motions, which the trial court

denied, and a timely notice of appeal.    Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

     Appellant raises six arguments in this appeal, which we reorganize for

the sake of convenience:

     I. Whether [Appellant]’s conviction for burglary was supported by
     sufficient evidence where: (1) the Commonwealth failed to prove
     beyond a reasonable doubt that at the time they entered the
     apartment, [Appellant] and/or his codefendant intended to
     commit any crime inside of the residence; and (2) the
     Commonwealth failed to prove that either [Appellant] or his
     codefendant was [not] licensed or privileged to enter the
     apartment by the actual resident[?]

     II. Whether [Appellant]’s conviction for second-degree murder is
     supported by sufficient evidence where the Commonwealth failed
     to prove that the decedent was killed during [Appellant]’s
     commission of an enumerated felony or during the commission of
     an enumerated felony by his co-defendant[?]

     III. Whether the trial court committed an error of law and/or
     abused its discretion in denying [Appellant’s] motion to suppress
     the contents of his cell phone where the affidavit in support of the
     search warrant failed to establish probable cause to believe that
     evidence of that crime would be found in the phone’s contents at
     the time that the warrant was issued[?]

     IV. Whether the trial court committed an error of law and/or
     abused its discretion in denying [Appellant’s] motion to suppress
     the identification made by David Anderson where the identification
     was tainted by his being shown a still surveillance video of the
     suspects prior to being shown the photographic array for
     identification purposes[?]

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      V. Whether the trial court committed an error of law and/or an
      abuse of discretion in denying [Appellant’s] Batson challenge
      where: the prosecuting attorney failed to state a valid race-neutral
      reason for striking juror 11; and the learned court ruled in error
      that [Appellant] was required to establish a pattern of
      discrimination by the prosecution before he could present a
      Batson challenge?

      VI. Whether the trial court committed an error of law and/or
      abused its discretion in failing to rule on defense counsel’s
      objection to the prosecutor’s act of improperly vouching for the
      testimony of the Commonwealth’s witnesses during the
      Commonwealth’s closing argument[?]

Appellant’s Brief at 13-14.

      We first examine whether the evidence is sufficient to sustain

Appellant’s convictions for burglary. When evaluating a sufficiency claim,

      our standard is whether, viewing all the evidence and reasonable
      inferences in the light most favorable to the Commonwealth, the
      factfinder reasonably could have determined that each element of
      the crime was established beyond a reasonable doubt. This Court
      considers all the evidence admitted, without regard to any claim
      that some of the evidence was wrongly allowed. We do not weigh
      the evidence or make credibility determinations. Moreover, any
      doubts concerning a defendant’s guilt were to be resolved by the
      factfinder unless the evidence was so weak and inconclusive that
      no probability of fact could be drawn from that evidence.

Commonwealth v. Kane, 10 A.3d 327, 332 (Pa. Super. 2010).

      A person commits burglary when, “with the intent to commit a crime

therein, the person: . . . enters a building or occupied structure . . . in which

at the time of the offense any person is present and the person commits,

attempts or threatens to commit a bodily injury crime therein.” 18 Pa.C.S.A.

§ 3502(a)(1). “It is a defense to prosecution for burglary if . . . at the time


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of the commission of the offense . . . the actor is licensed or privileged to

enter.” 18 Pa.C.S.A. § 3502(b)(3).

      Appellant contends that the Commonwealth failed to prove that he

intended to commit a crime when entering the apartment.          We disagree.

Appellant and Jones brought guns with them when they returned to the

apartment, and Appellant told Jones to hide his face from the camera in the

elevator. When the apartment door opened, he shoved the muzzle of a gun

into Burns’ stomach. This evidence demonstrates Appellant’s intent to commit

a crime inside the apartment.

      Appellant also argues that the Commonwealth failed to prove that he

was not licensed or privileged to enter the apartment. This argument suggests

erroneously that the Commonwealth had the burden of proof on this issue.

Section 3502 plainly states that license and privilege are affirmative defenses

for which the defendant shoulders the burden of proof. It is permissible to

require the defendant to prove these elements, because “the burden of

proving an affirmative defense that relieves the accused of criminal

responsibility, but does not negate an element of the offense charged[,] may

be placed on the defendant.” Commonwealth v. Collins, 810 A.2d 698, 701

(Pa. Super. 2002).

      Construed in the light most favorable to the Commonwealth, the

evidence demonstrates that Appellant failed to satisfy his burden of proof.

Appellant did not present any evidence that he had any residential interest in


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the apartment or some other right that entitled him to enter. The occupants

inside the apartment refused to let Appellant in the first time he knocked on

the door, and several hours later, he forced his way in with a gun. From these

facts, the jury had the right to infer that Appellant had no license or privilege

to enter.

      Next, Appellant contends that the evidence was insufficient to support

his conviction for second-degree murder, because the victim did not die during

the perpetration of a felony. We disagree. “A criminal homicide constitutes

murder of the second degree when it is committed while the defendant was

engaged as a principal or an accomplice in the perpetration of a felony.”

18 Pa.C.S.A. § 2502(b). Burglary is a felony, 18 Pa.C.S.A. § 3502(c), and we

have held above that the evidence is sufficient to sustain Appellant’s

conviction for burglary. Thus, the evidence establishes that the victim died

during the perpetration of a felony.

      In his third argument, Appellant claims that the trial court erred in

denying his motion to suppress by (1) ruling that police officers had

reasonable suspicion on December 27, 2013 to stop the car in which Appellant

was a passenger, and (2) probable cause existed to issue the search warrant

for one of the cell phones seized from the car.

      Appellant waived his objection to the ruling that police officers had

reasonable suspicion to stop the vehicle in which he was a passenger by failing

to raise this issue in his Pa.R.A.P. 1925 statement. The lone suppression issue


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in Appellant’s Rule 1925 statement pertained to the search warrant for his cell

phone. As a result, the trial court did not address this issue in its opinion,

thus impeding effective appellate review. Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues

not included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived”); Commonwealth v. Lemon,

804 A.2d 34, 36-37 (Pa. Super. 2002) (issues not included in Rule 1925

statement are waived because omission impedes preparation of trial court’s

legal analysis).

      Even if Appellant had preserved this issue for appeal, it is devoid of

merit. When reviewing a trial court’s denial of a motion to suppress evidence,

      [we are] limited to determining whether the suppression court’s
      factual findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. Because the
      Commonwealth prevailed before the suppression court, we may
      consider only the evidence of the Commonwealth 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 suppression
      court’s factual findings are supported by the record, [the appellate
      court is] bound by [those] findings and may reverse only if the
      court’s legal conclusions are erroneous. Where . . . the appeal of
      the determination of the suppression court turns on allegations of
      legal error, the suppression court’s legal conclusions are not
      binding on an appellate court, whose duty it is to determine if the
      suppression court properly applied the law to the facts. Thus, the
      conclusions of the courts below are subject to [ ] plenary review.

Commonwealth v. Parker, 161 A.3d 357, 361–62 (Pa. Super. 2015).

      “The Fourth Amendment to the [United States] Constitution and Article

I, Section 8 of [the Pennsylvania] Constitution protect citizens from

unreasonable searches and seizures.” Commonwealth v. McAdoo, 46 A.3d


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781, 784 (Pa. Super. 2012). “To secure the right of citizens to be free from

such intrusions, courts in Pennsylvania require law enforcement officers to

demonstrate ascending levels of suspicion to justify their interactions with

citizens to the extent those interactions compromise individual liberty.”

Commonwealth v. Reppert, 814 A.2d 1196, 1201 (Pa. Super. 2002).

Courts recognize three types of interactions between members of the public

and the police: a mere encounter, an investigative detention, and a custodial

detention.

     A mere encounter between police and a citizen need not be
     supported by any level of suspicion, and carr[ies] no official
     compulsion on the part of the citizen to stop or to respond. An
     investigatory stop, which subjects a suspect to a stop and a period
     of detention, but does not involve such coercive conditions as to
     constitute an arrest, requires a reasonable suspicion that criminal
     activity is afoot. A custodial search is an arrest and must be
     supported by probable cause.

Commonwealth v. Fuller, 940 A.2d 476, 479 (Pa. Super. 2007).               In

evaluating whether an interaction rises to the level of an investigative

detention, “the court must examine all the circumstances and determine

whether police action would have made a reasonable person believe he was

not free to go and was subject to the officer’s orders.” Commonwealth v.

Stevenson, 832 A.2d 1123, 1127 (Pa. Super. 2003). Prior to an investigatory

detention, the officer “must harbor at least a reasonable suspicion that the

person seized is then engaged in unlawful activity.”     Commonwealth v.

Barber, 889 A.2d 587, 593 (Pa. Super. 2005). “Reasonable suspicion is a

less stringent standard than probable cause necessary to effectuate a

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warrantless arrest, and depends on the information possessed by police and

its degree of reliability in the totality of the circumstances.” Commonwealth

v. Brown, 996 A.2d 473, 477 (Pa. 2010). “[I]nnocent facts, when considered

collectively, may permit the investigative detention.”     Id.   Police officers,

however, “need not personally observe the illegal or suspicious conduct, but

may rely upon the information of third parties, including tips from citizens.”

Commonwealth v. Smith, 904 A.2d 30, 36 (Pa. Super. 2006).

      Here, Detective Lynch, the Philadelphia detective who stopped the

vehicle in which Appellant was a passenger, reasonably suspected that the

driver was operating the car without authorization. The detective ran the tags

because the car was in a known high-crime area in North Philadelphia, and he

learned that a “try-and-locate” notice was on the registration, which meant

that the car might have been a rental that was not returned on time. N.T.,

6/15/15, at 9, 11-12. These factors gave the detective reasonable suspicion

to stop the car for further investigation.

      Next, Appellant contends that the search warrant for his cell phones

failed to establish probable cause for the search.    The contents of the cell

phones introduced during trial were text messages from Appellant to

Appellant’s brother between 10:29 p.m. and 11:43 p.m. on December 26,

2013 (between Appellant’s first and second visit to Burns’ apartment).

Appellant’s brother texted, “You got to grab da 380,” and Appellant responded,

“I know.” Appellant asked, “Where it’s at?” and his brother replied, “Da hotel.”


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N.T., 6/18/15, at 18. The gist of these messages was Appellant’s agreement

with his brother that Appellant needed the .380 caliber pistol and information

from his brother that the pistol was at the “hotel.”

      A reviewing magistrate must review the totality of the circumstances

presented in the affidavit to determine whether there is a fair probability that

evidence of the alleged crime will be reaped through execution of the warrant.

Commonwealth v. Sharp, 683 A.2d 1219, 1223 (Pa. Super. 1996).

Appellant argued that there was no evidence of any cell phone use at the time

of the murder, so there was not a fair probability that the police would recover

any evidence of the crime from his phone. We agree that the search warrant

failed to establish probable cause, but we also conclude that the introduction

of the contents of the cell phones during trial was harmless error.

      We summarize the averments in the affidavit of probable cause

underlying the warrant as follows:

         Shortly after midnight on December 27, 2013, Officer Fritz, one of

          the first officers at the murder scene, Apartment 524, spoke with

          Steven Burns, who was suffering from multiple gunshot wounds.

          Burns stated that two armed gunmen had shot him inside the

          apartment.

         Officer Fritz recovered a cell phone from Burns.




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        Corporal Hatfield entered the apartment and saw Hashimbey, who

         was pronounced dead at the scene. There was a cell phone near his

         body.

        Detectives discovered one fired .380 shell casing and one unfired

         .380 caliber bullet on the apartment floor.

        Detectives interviewed Burns at the hospital after Burns underwent

         surgery for his bullet wounds. Burns told them that he had seen two

         men on the evening of December 26, 2013 in the apartment elevator.

         Burns and the men exited the elevator on the fifth floor and went in

         opposite directions.   Shortly after Burns entered Apartment 524,

         Burns answered a knock at the door and observed the two men he

         had seen on the elevator.     One man asked whether “Miguel” was

         inside. Burns answered “no,” and the man asked to come inside to

         pick up his “stuff.” Burns replied that they could not come in because

         Miguel was not home.      The two men left.    Burns commented to

         Hashimbey that the men had been on the elevator with him but went

         in a different direction after exiting. Hashimbey replied that the men

         probably went to Apartment 507.         Later that evening, around

         midnight, Burns answered another knock at the door. The two men

         forced their way into the apartment. One man said, “yo, I gotta get

         my stuff,” and Burns saw that both men were holding revolvers. One




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         man said “shoot that nigga,” and the other man shot Burns in the

         hip.

        Angel Luna was in the apartment with Burns and Hashimbey at the

         time the two men forced their way inside.    Luna’s account of the

         events was consistent with Burns’ account.

        Police recovered surveillance video of the encounter on the elevator

         between Burns and the two men at 9:15 p.m. and the two men

         returning to the fifth floor on the elevator at midnight. One of the

         men was wearing a blue Penn State jacket, a gray hoodie underneath

         and camouflage pants.

        On December 28, 2013, detectives interviewed David Anderson, a

         resident in Apartment 507. Anderson stated that on the evening of

         December 26, 2013, a man named Curtis Harrell had visited his

         apartment. After Harrell left, two men visited Anderson’s apartment

         looking for Harrell. Anderson knew one of the men as “Dre” but did

         not know the other man.    The detectives showed Anderson a still

         photograph from the surveillance video, and Anderson identified the

         men in the photograph as the men who came to his apartment

         looking for Harrell.

        A detective checked Harrell’s criminal history and learned that

         Philadelphia police had arrested Harrell on November 8, 2008 along




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         with Daquan Hamilton, Appellant herein, and charged them with

         drug-related offenses.

        A detective then learned that Appellant had been arrested in

         Philadelphia at 1:41 a.m. on December 27, 2013 following a traffic

         stop of a Toyota with a registration number of EJE-3813. Appellant

         had run away from the vehicle following the traffic stop but was

         apprehended. Another male in the vehicle, Khaleef Jones, was also

         arrested. Jones was wearing the same clothes that one of the men

         in the surveillance video had been wearing: a blue jacket, gray

         hoodie and camouflage pants.       Jones also was in possession of a

         .380 caliber pistol, the same caliber as the ammunition found at the

         crime scene inside Apartment 524.

        On December 28, 2013, a detective showed Burns separate

         sequential   photo   arrays   containing   Appellant’s   and   Jones’

         photographs. Burns identified both men as the males who forced

         their way into Apartment 524 and committed the shootings.

        On December 29, 2013, Jones gave a statement to police in which

         he admitted entering Apartment 524 with Appellant and shooting his

         gun, but he claimed that the shot only struck a wall. Jones’ account

         of the events indicated that Appellant fired the shots that injured

         Burns and killed Hashimbey.        Jones and Appellant exited the

         apartment, and another man, “Tone,” drove them to Philadelphia


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         On January 2, 2014, a detective and police officer executed a search

          warrant on the Toyota that Jones and Appellant were driving at the

          time of the traffic stop. The detective recovered two cell phones and

          a camera/music device.

Exhibit C-1 (search warrant for cell phones).

      The allegations in the affidavit of probable cause do not furnish probable

cause to believe that the police would find evidence of crime on the cell phones

recovered in the Toyota. The affidavit does not allege that Appellant or Jones

talked on their cell phones to plan the break-in or to discuss shooting the

victims in advance of the break-in.     Neither does the affidavit state that

Appellant or Jones talked on their cell phones after shooting the victims and

leaving the apartment. Nor does the affidavit allude to any other fact that

would indicate a nexus between the cell phones and the charges against

Appellant. Standing alone, the fact that the police discovered two cell phones

in the vehicle driven by Jones and Appellant after the shooting does not

provide reason to believe that the cell phones contained evidence of the crimes

in question.     Therefore, the trial court erred by denying Appellant’s

suppression motion.

      Nevertheless, this error was harmless. Harmless error exists

      if the state proves either: (1) the error did not prejudice the
      defendant or the prejudice was de minimis; or (2) the erroneously
      admitted evidence was merely cumulative of other untainted
      evidence which was substantially similar to the erroneously
      admitted evidence; or (3) the properly admitted and
      uncontradicted evidence of guilt was so overwhelming and the

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      prejudicial effect of the error was so insignificant by comparison
      that the error could not have contributed to the verdict.

Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017).                   The text

messages seized from the cell phones were cumulative of other untainted

evidence. The text messages indicated Appellant’s intent to (1) obtain a .380

caliber pistol and (2) return to Burns’ apartment and attack Burns.          The

Commonwealth submitted other untainted evidence that proved the same

facts. With regard to (1), Jones testified that before the second, fateful entry

into Burns’ apartment, Appellant handed him a .380 caliber pistol.         Jones

entered the apartment, shot the .380 caliber pistol once and ran out into the

hallway. Jones continued carrying the .380 caliber pistol until his arrest ninety

minutes after the shooting. With regard to (2), Jones testified that he and

Appellant drove back to the apartment complex, where Appellant handed

Jones the .380 caliber pistol and told Jones to cover his face before they

entered the elevator. Burns testified that Appellant forced his way into the

apartment, shouted “shoot the nigger,” and shot Hashimbey. Jones testified

that he entered the apartment, fired his gun once, and ran out into the hall.

He heard two more gunshots as he exited.        In addition to this eyewitness

testimony, Appellant wrote Jones letters following their arrest in which

Appellant admitted responsibility for the murder—“I’m sorry for getting you in

this shit . . . Dam bro, I fucked up, but we can’t cry over spilled milk”—but

implored Jones to blame the incident on Burns. Finally, ballistics evidence

establishes that the bullet that killed Hashimbey came from a .357 caliber

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pistol. Since Jones was carrying a .380 caliber pistol, Appellant was carrying

the .357 caliber pistol that fired the fatal shot.            For these reasons, the

erroneous admission of the cell phone evidence does not entitle Appellant to

relief.

          We   note    that   our   decision     today   is    distinguishable   from

Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018), in which our Supreme

Court criticized this Court’s harmless error analysis. In Fulton, this Court held

that the search of the defendant’s cell phone was illegal, but that any error

was harmless in light of other properly admitted evidence of the defendant’s

guilt. Our Supreme Court observed that this Court applied the third harmless

error test—i.e., “the properly admitted and uncontradicted evidence of guilt

was so overwhelming and the prejudicial effect of the error was so insignificant

by comparison that the error could not have contributed to the verdict.” Id.

at 493-94. The Supreme Court continued, however, that

          the Superior Court failed entirely to discuss whether the evidence
          that it relied on to find harmless error was contradicted by other
          evidence of record. This omission from its determination of
          harmlessness is fatal to its conclusion . . . [O]verwhelming
          evidence of a defendant’s guilt is never harmless unless that
          evidence is uncontradicted.

Id. at 494. In the present case, we apply a harmless error test different from

the test this Court applied in Fulton, namely “whether the erroneously

admitted evidence was merely cumulative of other untainted evidence which

was substantially similar to the erroneously admitted evidence.” Burno, 154

A.3d at 787. Moreover, as established above, the evidence seized from the

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cell phones in the present case is cumulative of other untainted and properly

admitted evidence that proves the same facts.

       In his next argument, Appellant contends that the trial court erred in

denying his motion to suppress Anderson’s out-of-court identification of

Appellant from a photo array.          Appellant argues that the police made the

identification procedure unduly suggestive by showing Anderson a still

surveillance video of the suspects six hours before showing him the photo

array.3

       We disagree with Appellant. The trial court opinion explained its reasons

for denying Appellant’s motion in its opinion as follows:

       [W]hether an out of court identification is to be suppressed as
       unreliable, and therefore violative of due process, is determined
       from the totality of the circumstances. Commonwealth v.
       Carson, 741 A.2d 686, 697 (1999), abrogated on other grounds,
       by Commonwealth v. Freeman, 827 A.2d 385 (Pa. 2003).

       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.
       Commonwealth v. Kubis, 978 A.2d 391, 396 (Pa. Super. 2009).
       Identification evidence will not be suppressed unless the facts
       demonstrate that the identification procedure was so
       impermissibly suggestive as to give rise to a very substantial
       likelihood of irreparable misidentification. Commonwealth v.
       Burton, 770 A.2d 771, 782 (Pa. Super. 2001), appeal denied, 868
       A.2d 1197 (Pa. 2005), overruled on other grounds by
       Commonwealth v. Mouzon, 812 A.2d 617, 623 (Pa. 2002).
       Photographs in lineups are not unduly suggestive if the suspect’s
____________________________________________


3 As noted above, Burns identified Appellant and Jones from photo arrays
prepared by the police. In the present argument, Appellant objects to
Anderson’s out-of-court identification of Appellant but not to Burns’ out-of-
court identification.

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     picture does not stand out more than the others, and the people
     depicted all exhibit similar facial characteristics. Commonwealth
     v. Fisher, 769 A.2d 1116, 1126-27 (Pa. 2001).

     During suppression, [Appellant] argued that Mr. Anderson was
     shown a still shot of a surveillance video depicting [Appellant] and
     Khaleef Jones outside of the apartment in question at the time of
     the incident. A few hours later, Mr. Anderson was shown a photo
     array and asked if he recognized anyone, whereby Mr. Anderson
     identified [Appellant]. Thus, the defense contended that the
     identification should be suppressed as impermissibly suggestive.
     The trial court disagreed. Indeed as demonstrated by the record,
     the trial court went to great lengths to determine whether the
     identification process was suggestive, requesting to see the
     surveillance still which had not been introduced into evidence, and
     also requesting that the [d]etective involved in the photo
     identification process [be] further questioned. (Please see Notes
     of Testimony from 2/6/15, pgs. 52-61). Indeed, the court stated,

     THE COURT: I want to make sure we target this. Your argument
     isn’t as much the array itself was prejudicial, the argument that
     I’m hearing is that by virtue of showing a picture of [Appellant]
     earlier in the day, you’ve not tainted the witness and that’s what
     I want to hear argument about. [ . . . ]

     THE COURT: What was he told when he was shown the earlier
     photo? I mean, I think there’s things here that we’re not bringing
     that out that might be helpful to resolving this. I want to know
     what he was told when he was shown the earlier photo—what
     discussion was had there—and I’d like to see the photo.

     [The Commonwealth]: Sure. We can get the photo for you, Your
     Honor.

     THE COURT: Okay.       Could you do that?     That would be very
     helpful.

     MR. WHALLEY: Detective Richard can testify again if he needs to.

     THE COURT: I would like to know that. I’m going to ask him to
     come back up on the stand.

     (Please see Notes of Testimony from 2/6/15, pgs. 52-61)


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     Upon further inquiry, Detective Richard indicated that they were
     canvassing the apartment building to learn if anyone had
     information on the homicide that occurred in the building the day
     prior. He spoke to Mr. Anderson at the apartment building, and
     then Mr. Anderson later went to the police station to provide
     further information. Mr. Anderson indicated that a man named
     Dre had visited his apartment on the night in question. The
     [d]etective then showed Anderson some individual photographs
     followed by some surveillance still shots, including the photograph
     with [Appellant] and Khaleef Jones in it. Detective Richard further
     explained,

     [Detective Richard]: Then I said I would like to show you some
     surveillance photos to see if you know the people in the
     surveillance photos. That was the extent of the conversation. As
     far as I knew at that point, the two people in the surveillance
     photos, they could have lived there. I had no idea what their
     involvement was, but I know they were there about the time I
     needed to talk to them so I wanted to find out who they were. [.
     ..]

     MR.COOPER: So you showed the picture that we just looked at
     which was C-4 or 5, whatever that was, right?

     DETECTIVE RICHARD: The surveillance still. [. . . ]

     MR. COOPER: Okay. And he said that’s Dre?

     DETECTIVE RICHARD: He said I recognize the first person as Dre.
     I don’t know the person behind him. [ . . . ]

     MR. COOPER: And you found out who he [Dre] was based on the
     research; is that correct?

     DETECTIVE RICHARD: Yes, we eventually found out who he was.

     (Notes of Testimony 2/16/15, pgs. 61-62)

     The [d]etective eventually found out that Dre was [Appellant]
     herein. Later that day, Mr. Anderson returned to the police station
     to view the photo array at issue whereby he identified an
     individual in one of those photos as Dre.




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J-S71019-17


      After hearing the above testimony and viewing the surveillance
      photo, the trial court determined that the identification procedure
      was not unduly suggestive. (Notes of Testimony 2/16/15, p. 68).
      The trial court deemed Detective Richard’s testimony credible[,]
      indicating that he originally showed Anderson the surveillance
      photograph outside of the apartment building purely to gather
      information about individuals at the scene at the time of the
      incident. At that point, law enforcement had no suspects. Mr.
      Anderson recognized [Appellant] in the photograph as Dre, the
      individual who visited him at his apartment on the night in
      question. Again at that point Detective Richard [was] merely
      gathering information concerning the individuals at the scene who
      could provide information.       Mr. Anderson left the police
      department and the investigators continue[d] gathering
      information, including information on Dre. They learn[ed] Dre’s
      name [was] actually Daquan Hamilton, [Appellant] herein. When
      Mr. Anderson [was] called back to the police department to view
      a photo array, Daquan Hamilton’s photograph [was] included
      therein.    Mr. Anderson indicate[d] that he recognize[d]
      [Appellant’s] photograph and identifie[d] him as Dre.

      The court found that the identification process was not unduly
      suggestive[,] given the quality of the surveillance photograph at
      issue; given that the photograph was shown during the initial
      information gathering process wherein there were not yet any
      suspects; given that Mr. Anderson was never told that the men in
      the photograph were suspects; given that Mr. Anderson did not
      recognize the co-defendant [Jones] in the photograph; given that
      time passed between showing Mr. Anderson the surveillance
      photograph and the actual photo array; given that Mr. Anderson
      identified [Appellant] as Dre; and, given that there was nothing
      suggestive about the photo array itself. Thus, for all of those
      reasons, the trial court properly declined to suppress the
      identification.

Trial Court Opinion, 11/30/16, at 4-8. We agree with the trial court’s thorough

analysis and find no merit in Appellant’s argument.

      Appellant   next   argues   that   the   Commonwealth      violated   his

constitutional rights by exercising a peremptory strike against Juror 11, an

African-American, with discriminatory intent. Appellant argues that the

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J-S71019-17


Commonwealth failed to state a valid race-neutral reason for striking Juror

11, and that the trial court erred by ruling that he was required to establish a

pattern of discrimination before he could present a Batson4 challenge relating

to Juror 11. We disagree.

       Batson held that the racially motivated use of peremptory challenges

to strike prospective jurors violates the Equal Protection Clause of the

Fourteenth Amendment. The Supreme Court set forth a three-part test for

examining the defendant’s claim that the prosecutor exercised peremptory

challenges in a racially discriminatory manner: first, the defendant must make

a prima facie showing that the circumstances give rise to an inference that

the prosecutor struck one or more prospective jurors on the account of race;

second, if a prima facie showing is made, the burden shifts to the prosecutor

to articulate a race-neutral explanation for striking the juror(s) at issue; and

third, the trial court must then make the ultimate determination of whether

the defense has carried the burden of proving purposeful discrimination.

Commonwealth v. Fletcher, 861 A.2d 898, 909 (Pa. 2004) (citing Batson).

The trial court’s decision on the ultimate question of discriminatory intent

       represents a finding of fact of the sort accorded great deference
       on appeal and will not be overturned unless clearly erroneous.
       Such great deference is necessary because a reviewing court,
       which analyzes only the transcripts from voir dire, is not as well
       positioned as the trial court is to make credibility determinations.
       Moreover, there will seldom be much evidence on the decisive
       question of whether the race-neutral explanation for a peremptory
____________________________________________


4   Batson v. Kentucky, 476 U.S. 79 (1986).

                                          - 22 -
J-S71019-17


     challenge should be believed; the best evidence often will be the
     demeanor of the prosecutor who exercises the challenge.

Commonwealth v. Williams, 980 A.2d 510, 531 (Pa. 2009).

     The record demonstrates that the Commonwealth articulated a race-

neutral reason for striking Juror 11: she suffered from migraine headaches.

The trial court found this explanation credible. Trial Ct. Op. at 14. We must

accord great deference to this decision, Williams, 980 A.2d at 531, and we

see nothing in the record that casts doubt on the court’s conclusion. Since

Appellant’s Batson challenge to striking Juror 11 lacks merit, his complaint

that the trial court erroneously required him to demonstrate a pattern of

discrimination before presenting a Batson challenge to Juror 11 is moot.

     Finally, Appellant seeks a new trial based on alleged prosecutorial

misconduct during closing argument.           First, Appellant claims that the

prosecutor improperly vouched for the credibility of Jones, who testified for

the Commonwealth. The prosecutor stated:

     [The Commonwealth]: I submit, maybe they lied six months ago.
     Maybe they might lie tomorrow. Yesterday, they were telling the
     truth. They sat there yesterday and told you the truth. [Jones]
     sat there and stood like a man and finally told you what happened.
     May not have been telling the truth last month. He told the truth
     yesterday. All the evidence points to that. He did tell the truth
     yesterday, and that’s the only time he has to tell the truth was
     yesterday.

     [Defense counsel]: Objection.

     [The Commonwealth]: Then he said they want back to the
     apartment complex.

N.T., 6/18/15, at 121-22.

                                     - 23 -
J-S71019-17


      To begin with, Appellant waived this issue due to defense counsel’s

failure to specify any grounds for his objection. Commonwealth v. Lopez,

57 A.3d 74, 82 (Pa. Super. 2012) (party must make timely and specific

objection to preserve issue for appellate review; merely stating “objection” is

insufficient). Even if Appellant had preserved this issue, it is devoid of merit.

“[T]he prosecution is accorded reasonable latitude, may employ oratorical flair

in arguing its version of the case to the jury, and may advance arguments

supported by the evidence or use inferences that can reasonably be derived

therefrom.”   Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super.

2016). The prosecutor herein argued that the witnesses told the truth on the

stand because they were under oath, despite their earlier lies. These facts—

the witnesses had given prior inconsistent statements and were under oath

when they testified—were in the record. N.T., 6/17/15, at 78-80. Therefore,

the prosecutor advanced arguments that found support in the record, and he

did not improperly vouch for any witness’s credibility.

      Second, Appellant argues that the Commonwealth prejudiced him

during closing argument by stating that the jury was the “voice” for the

deceased victim, Hashimbey.       At the beginning of closing argument, the

prosecutor stated: “The only person who can’t speak anymore is George

Hashimbey . . . He really doesn’t have a voice anymore. He’s never gonna

speak again, never talk with his parents, anything. So he’s the one who can’t

speak any more. He was silenced.” N.T., 6/18/15, at 94. At the conclusion


                                     - 24 -
J-S71019-17


of his closing, the prosecutor added, “You’re his voice. You’re his voice for

him. You’re his voice for the family.” Id. at 141.

      Once again, Appellant waived this argument, because defense counsel

did not object to either of the Commonwealth’s “voice” statements. Lopez,

57 A.3d at 82. Even if Appellant preserved this objection, it does not warrant

any relief.

      [I]t is well settled that any challenged prosecutorial comment
      must not be viewed in isolation, but rather must be considered in
      the context in which it was offered. Our review of a prosecutor's
      comment and an allegation of prosecutorial misconduct requires
      us to evaluate whether a defendant received a fair trial, not a
      perfect trial. Thus, it is well settled that statements made by the
      prosecutor to the jury during closing argument will not form the
      basis for granting a new trial unless the unavoidable effect of such
      comments would be to prejudice the jury, forming in their minds
      fixed bias and hostility toward the defendant so they could not
      weigh the evidence objectively and render a true verdict. The
      appellate courts have recognized that not every unwise remark by
      an attorney amounts to misconduct or warrants the grant of a new
      trial.

Jaynes, 135 A.3d at 615 (citations and quotation marks omitted).             The

prosecutor made a passing remark during a lengthy closing argument that the

jury served as the victim’s “voice.”   While this comment might have been

unnecessary, it did not have the unavoidable effect of prejudicing the jury.

The Commonwealth presented strong evidence of Appellant’s guilt during trial,

and the trial court instructed the jury to base its verdict on the evidence and

not on counsel’s arguments. N.T., 6/18/15, at 160-62. We conclude that the

jury decided this case based on the evidence presented against Appellant, not

on the closing argument of the Commonwealth.

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J-S71019-17


     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/18




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