J-S62008-18

                                   2018 PA Super 338

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES LORENZO BROWN                        :
                                               :
                       Appellant               :   No. 1904 EDA 2016

              Appeal from the Judgment of Sentence June 3, 2016
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0009330-2011


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

OPINION BY LAZARUS, J.:                             FILED DECEMBER 11, 2018

        James Lorenzo Brown appeals from his judgment of sentence, entered

in the Court of Common Pleas of Philadelphia County, after a jury convicted

him of robbery1 and possessing instruments of crime (“PIC”),2 and the trial

court convicted him of possession of a firearm by person prohibited.3 Upon

careful review, we affirm.

        The trial court set forth the facts of this matter as follows:

        On June 26, 2015, Gwenervere Presley (hereinafter, “the
        Complainant”) had her aunt drive her to the ATM at 50th and
        Baltimore Avenue, in the city and county of Philadelphia. The
        Complain[an]t’s 13[-]year[-]old daughter, Royalti, rode with
        them. They arrived at the ATM at approximately 11:30 a.m. The
        Complainant exited the vehicle. Her aunt and Royalti waited in
        the car. The Complainant withdrew $100 from the ATM. She put
____________________________________________


1   18 Pa.C.S.A. § 3701.

2   18 Pa.C.S.A. § 907.

3   18 Pa.C.S.A. § 6105.
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        the money in her pocket. She then proceeded to make another
        ATM withdrawal. As she was waiting for the transaction to be
        completed, she felt someone standing unusually close to her. She
        looked up and saw a man’s face. He was standing to her left side,
        right next to her. The man showed the Complainant a gun in his
        waist. She started screaming. The man then pointed the gun at
        her and told her to give him her money. She began to scream
        more frantically. She feared for her life. She gave the man $100.
        He then turned around, walked to a car parked on the corner of
        50th and Baltimore Avenue, entered the passenger side of the car,
        and rode off. Royalti had the presence of mind to get the license
        plate number off the car the man entered and place it in her cell
        phone.

Trial Court Opinion, 11/29/17, at 1-2 (citations to record omitted).

        Using the tag number obtained by the Complainant’s daughter, police

identified Ernest Matthews as the owner of the vehicle in which the suspect

fled.   Upon questioning, Matthews identified Brown as the individual seen

riding away in his car after the Complainant was robbed. On July 12, 2011,

the Complainant identified Brown from a photo array as the man who had

robbed her.

        On October 29, 2015, a jury found Brown guilty of robbery and PIC.

Following the jury verdict, the parties proceeded to a stipulated waiver trial

on the charge of possession of firearm by person prohibited, after which the

court entered a guilty verdict. On May 11, 2016, the court sentenced Brown

to an aggregate sentence of 32½ to 65 years’ imprisonment. 4 On June 16,

2016, Brown filed a timely notice of appeal. On August 9, 2016, the trial court
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4 The court initially sentenced Brown to an aggregate of 37½ to 75 years’
incarceration. However, upon consideration of Brown’s post-sentence motion,
the court agreed that it had exceeded the statutory maximum on the firearm
charge and resentenced Brown accordingly.

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ordered Brown to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) within 21 days. Brown failed to timely file his

Rule 1925(b) statement and the trial court subsequently entered a Rule

1925(a) opinion noting Brown’s lack of compliance. On January 10, 2017, this

Court remanded the case to the trial court for the filing of a Rule 1925(b)

statement. Brown timely complied, and the trial court issued an updated Rule

1925(a) opinion. Brown raises the following issues on appeal:

        1. Did not the [trial] court err in denying [Brown’s] motion to
        admit expert testimony on the subject of eyewitness
        identification?

        2. Did not the [trial] court err in denying [Brown’s] motion in
        limine to prohibit inadmissible evidence and argument regarding
        the accuracy of the witness’ identification of [Brown] as related to
        her level of confidence in her identification where scientific
        evidence proves that there is no correlation between how certain
        a witness is of his/her identification and the accuracy of that
        identification?

        3. Did not the trial court err in denying [Brown’s] request for
        supplemental jury instructions which were carefully targeted
        toward juror recognition of the validity of deep-seated beliefs on
        issues crucial to [Brown’s] defense?

        4. Did not the [trial] court err by denying [Brown’s] “Motion to
        Dismiss or in Alternative Preclude Testimony” for the
        Commonwealth’s failure to preserve exculpatory material?

Brief of Appellant, at 4.

        First, Brown contends that the trial court erred in denying his motion to

admit    expert   testimony   on   the   subject   of   eyewitness   identification.

Specifically, Brown argues that the “significant misunderstandings regarding

perception, memory and recall and the reliability of eyewitness identification”


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of jurors can only be addressed through expert testimony, Appellant’s Brief at

16, and that in light of the Supreme Court’s recent rejection of a per se ban

on expert testimony, he is entitled to a new trial. See Commonwealth v.

Walker, 92 A.3d 766, 787 (Pa. 2014) (holding admission of expert testimony

regarding eyewitness identification not per se impermissible but instead

subject to discretionary decision of trial court).

      This Court evaluates the admission of evidence by an abuse of discretion

standard. Commonwealth v. Alicia, 92 A.3d 753, 760 (Pa. 2014). An abuse

of discretion is not merely an error of judgment. Rather, discretion is abused

when the law is overridden or misapplied, or the judgment exercised is

manifestly unreasonable or the result of partiality, prejudice, or ill-will, as

shown by the evidence of record. Commonwealth v. Busanet, 817 A.2d

1060, 1076 (Pa. 2002).

      While our Supreme Court has abandoned the absolute ban on expert

testimony regarding eyewitness identification, its admission is not mandatory.

Rather, such expert testimony is generally admissible only when it is relevant

and where “the Commonwealth’s case is solely or primarily dependent upon

eyewitness testimony.” Walker, 92 A.3d at 787.

      The matter sub judice is distinguishable from Walker. In Walker, the

Commonwealth’s primary evidence consisted of a cross-racial identification,

at night, where the victim had a fleeting view of the perpetrator. Additionally,

there was no corroborating evidence as to the identification of the perpetrator.


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      In contrast, here, the Complainant and her daughter viewed the

assailant in daylight and Complainant was able to specifically describe Brown

and his clothing, which included a Philadelphia Eagles jersey.             The

Complainant also testified that the perpetrator fled the scene in the passenger

seat of a black vehicle.     The Complainant’s daughter corroborated her

mother’s description of the man, whom she saw flee to the vehicle. Using the

license number recorded by the Complainant’s daughter, authorities located

the vehicle’s owner, Ernest Matthews. Matthews confirmed that Brown was in

Matthews’ black vehicle on the day of the robbery and corroborated the

description of his attire. Matthews further testified that Brown had no money

when he left the vehicle and returned moments later with money in his hand.

Finally, police obtained surveillance footage from the bank, and both Royalti

and Matthews identified Brown and his clothing in photographic stills from the

footage.

      Because the eyewitness identification in this case was substantially

corroborated by independent evidence, the trial court acted within its

discretion in denying the admission of expert testimony relating to the

identification.

      Brown next argues that the trial court improperly denied his motion in

limine to bar witness testimony and prosecutorial argument concerning

witness confidence. Specifically, he argues that the Complainant’s testimony

concerning her own confidence in her identification of him should be barred


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because “[s]cientific evidence proves no correlation between how certain a

witness is of his/her identification and how accurate the identification is.”

Appellant’s Brief, at 18.

      The standard of review on appeal of a denial of a motion in limine is

abuse of discretion.    Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa.

Super. 2013).    “The trial court has considerable discretion in ruling upon

whether testimony is ‘fact’ or ‘opinion’ testimony, and if ‘opinion,’ whether it

should be admitted or excluded.” Commonwealth v. Galloway, 485 A.2d

776, 781 (Pa. Super. 1984).

      In his brief, Brown fails to identify any specific testimony in which the

Complainant vouches for the accuracy of, or characterizes her degree of

certainty in, her identification of Brown. In order for this Court to determine

whether Brown was prejudiced by the trial court’s adverse ruling on his motion

in limine, he must, at a minimum, direct us to the specific places in the record

where allegedly prejudicial testimony was elicited. He has failed to do so, thus

substantially impeding our review of this issue.      Accordingly, Brown has

waived his claim.   Commonwealth v. Smith, 985 A.2d 886, 906-07 (Pa.

2009) (failure to properly develop argument, with proper citation to record,

results in waiver of claim); Pa.R.A.P. 2101 (when defects in brief impede our

ability to conduct meaningful appellate review, we may dismiss appeal entirely

or find certain issues waived).




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     Brown next alleges that the trial court erred in refusing to allow his

requested jury instruction as to eyewitness identification because “the instant

case [] involved an eyewitness identification in a situation of high stress

involving a weapon that happened very quickly.”        Appellant’s Brief, at 22.

Brown requested that the trial court instruct the jury using an “enhanced jury

charge[]” adopted by the Supreme Court of New Jersey in State of New

Jersey v. Henderson, 27 A.3d 872 (N.J. 2011). Brown is entitled to no relief.

      We review a trial court’s refusal to give a specific jury instruction for an

abuse of discretion or error of law. Commonwealth v. Demarco, 809 A.2d

256, 260–61 (Pa. 2002). The trial court has broad discretion in its phrasing

of jury instructions “so long as the issue is adequately, accurately, and clearly

presented to the jury for its consideration.” Commonwealth v. Bey, 375

A.2d 1304, 1310 (Pa. 1977); Commonwealth v. Holder, 765 A.2d 1156,

1159 (Pa. Super. 2001).

      Brown’s argument in support of this claim is undeveloped, unsupported

and, as a result, waived. Brown asks us to adopt and apply extrajudicial law

without explaining why Pennsylvania’s framework is insufficient to address his

concerns. Additionally, while he provides us with the citation to Henderson,

he does not identify—much less elaborate on—any of the specific factors

articulated in the New Jersey decision. Because Brown’s argument consists of




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a bald assertion, devoid of any discussion or reliable case law, we are

compelled to find his claim waived.5 Smith, supra.

____________________________________________


5Even if Brown had not waived this claim, he would be entitled to no relief.
The trial court instructed the jury as follows:

       Some of the witnesses in their testimony identified the defendant
       as the person who committed the crime. In evaluating and
       identifying witness testimony, in addition to the other instructions
       I have provided to you for judging the testimony of witnesses, you
       should consider the additional following factors: Did the witness
       have a good opportunity to observe the perpetrator of the
       offense? Was there sufficient lighting for the witness to make his
       or her observations? Was the witness close enough to the
       individual to note the facial and other physical characteristics as
       well as any clothing he or she was wearing? Has the witness made
       a prior identification of the defendant as the perpetrator of these
       crimes at any other proceedings? Was the witness's identification
       positive or was it qualified by any hedging or inconsistency?
       During the course of this case did the witness identify anyone else
       as the perpetrator?
                                        ...

       Now, there is a question of whether some of those identifications
       are accurate. A victim or other witness can sometimes make a
       mistake when trying to identify the criminal. If certain factors are
       present, the accuracy of identification testimony is so doubtful
       that a jury must receive it with caution.

       Identification testimony must be received with caution if the
       witness, because of bad position, poor lighting, or other reasons,
       did not have a good opportunity to observe the criminal; if the
       witness in their testimony is not positive as to the identity; if the
       witness's positive testimony as to identity is weakened by
       qualification, hedging, or inconsistencies in the rest of their
       testimony; by their not identifying the defendant or identifying
       someone else as the criminal before the trial began. If you believe
       that one or more of these factors are present, then you must
       consider with caution the witness’s testimony identifying the
       defendant as the person who committed the crime. If, however,
       you do not believe that at least one of these factors is present,



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       Lastly, Brown claims that the trial court erred by denying his motion to

preclude the photographic stills from the bank’s surveillance footage as a

discovery sanction for the Commonwealth’s failure to preserve evidence.

Brown asserts that the Commonwealth’s failure to preserve the surveillance

video “violated [his] absolute discovery rights pursuant to [Pa.R.Crim.P.] 573,

and, as well, his rights to both a fair trial and to present a defense simply

because the court refused to impose any sanctions[.]” Brief of Appellant, at

27. He is entitled to no relief.

       If a discovery violation occurs, the court may grant a trial
       continuance or prohibit the introduction of the evidence or may
       enter any order it deems just under the circumstances.
       Pa.R.Crim.P. 573(E)[]. The trial court has broad discretion in
       choosing the appropriate remedy for a discovery violation.
       Commonwealth v. Johnson, [] 727 A.2d 1089 ([Pa.] 1999).
       Our scope of review is whether the court abused its discretion in
       not excluding evidence pursuant to Rule 573(E). Id. (citing
       Commonwealth v. Jones, [] 668 A.2d 491 ([Pa.] 1995)). A
       defendant seeking relief from a discovery violation must
       demonstrate prejudice.       Id. (citing Commonwealth v.
       Counterman, [] 719 A.2d 284 ([Pa.] 1998)). A violation of
       discovery “does not automatically entitle appellant to a new trial.”
       Jones, 668 A.2d at 513[].          Rather, an appellant must
       demonstrate how a more timely disclosure would have affected
       his trial strategy or how he was otherwise prejudiced by the
       alleged late disclosure.      Id. (citing Commonwealth v.
       Chambers, [] 599 A.2d 630, 636–38 ([Pa.] 1991) (no error in

____________________________________________


       then you need not receive the testimony with caution. You may
       treat it like any other testimony.

N.T. Trial, 10/29/15, at 96-98.

The instruction given by the trial court adequately, accurately, and clearly
presented the issue and the law to the jury for its consideration. Bey, supra.


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      denial of mistrial motion for untimely disclosure where appellant
      cannot demonstrate prejudice)).

Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003).

      Here, Brown’s claim involves the loss of the original bank surveillance

footage, from which the stills presented at trial were obtained. The trial court

found the circumstances surrounding the loss of the video footage to be as

follows:

      Detective Darren Lindsey – the lead detective in the case –
      testified at length during trial about the missing video. The
      robbery occurred on June 26, 2011[,] and the detective was
      transferred to East Detectives in December, 2011. The detective
      stated that when he received a call in March or April of 2012
      requesting the video he “went back to Southwest Detectives [his
      previous post] to look for [the] file [that contained the video], but
      the file was no longer in central filing . . . [the detective had] never
      seen a file disappear. [He had] no idea how the file was lost.”
      N.T. 10/28/2015 at 22. However, the detective further testified
      that all the documents in the file that went missing, including the
      photographic stills from the missing file, were previously uploaded
      to the system directly linked to the District Attorney’s office and
      was no different than what was presented at trial.

Trial Court Opinion, 11/29/17, at 14.

      Pennsylvania Rule of Criminal Procedure 573 provides, in relevant part,

as follows

      (B) Disclosure by the Commonwealth.

      (1) Mandatory. In all court cases, on request by the defendant,
      and subject to any protective order which the Commonwealth
      might obtain under this rule, the Commonwealth shall disclose to
      the defendant’s attorney all of the following requested items or
      information, provided they are material to the instant case. The
      Commonwealth shall, when applicable, permit the defendant’s
      attorney to inspect and copy or photograph such items.



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      (a) Any evidence favorable to the accused that is material either
      to guilt or to punishment, and is within the possession or control
      of the attorney for the Commonwealth;
                                     ...

      (f) any tangible objects, including documents, photographs,
      fingerprints, or other tangible evidence[.]

Pa.R.Crim.P. 573(B).

      Pennsylvania Rule of Criminal Procedure 573 governs pre-trial discovery

in criminal cases.     The rule requires the disclosure of evidence by the

Commonwealth where it is: “(1) requested by the defendant, (2) material to

the case, and (3) within the possession or control of the prosecutor.”

Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citations

omitted).

      Mandatory discovery includes, inter alia:

      (a) Any evidence favorable to the accused that is material either
      to guilt or to punishment, and is within the possession or control
      of the attorney for the Commonwealth.


Pa.R.Crim.P. 573 (B)(1)(a).      The rule also provides remedial measures to

address violations as follows:

      If at any time during the course of the proceedings it is brought
      to the attention of the court that a party has failed to comply with
      this rule, the court may order such party to permit discovery or
      inspection, may grant a continuance, or may prohibit such party
      from introducing evidence not disclosed, other than testimony of
      the defendant, or it may enter such other order as it deems just
      under the circumstances.

Pa.R.Crim.P. 573(E).




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      The decision of the United States Supreme Court in Brady v. Maryland,

373 U.S. 83 (1963), also governs pre-trial discovery in criminal matters. Rule

573   imposes    greater     obligations    upon   prosecutors    than   the   Brady

requirements.     Commonwealth v. Maldonodo, 173 A.3d 769, 774 (Pa.

Super. 2017).       Nevertheless, our cases frequently analyze whether a

particular discovery sanction was justified by analyzing whether the evidence

was required to be disclosed pursuant to Brady. See Maldonodo, 173 A.3d

at 774.

      In Brady, the Court held that “the suppression by the prosecution of

evidence favorable to an accused upon request violates due process where

the evidence is material either to guilt or to punishment.” Id. at 84. “There

are three necessary components that demonstrate a violation of the Brady

strictures: the evidence was favorable to the accused, either because it is

exculpatory or because it impeaches; the evidence was suppressed by the

prosecution,    either   willfully   or   inadvertently;   and   prejudice   ensued.”

Commonwealth v. Burke, 781 A.2d 1136, 1141 (Pa. 2001). Evidence is

material “if there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been

different.”   Strickler v. Greene, 527 U.S. 263 (1999) (citation omitted).

Finally, “unless a criminal defendant can show bad faith on the part the police,

failure to preserve potentially useful evidence does not constitute a denial of




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due process of law.”   Commonwealth v. Small, 741 A.2d 666, 676 (Pa.

1999), quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988).

     Here, the trial court concluded that the Commonwealth did not act in

bad faith by intentionally suppressing the surveillance video and, thus,

declined to impose sanctions.

     [T]he Commonwealth did not act in bad faith in failing to preserve
     the video evidence. The Commonwealth made a bona fide search
     for the video tape in question and procured the photographic stills
     of the videotape from the garage of a detective one year after the
     arrest. These photographic stills were then made available to the
     Defendant.

Trial Court Opinion, 11/29/17, at 14. The record supports this conclusion.

     Brown also failed to demonstrate prejudice.      Causey, supra.        First,

there was substantial evidence of Brown’s guilt presented at trial, including

two eyewitnesses who identified Brown as the perpetrator. Nor does Brown

argue that his trial strategy would have been different had the videotape been

available. See id. (appellant must demonstrate how timely disclosure would

have affected trial strategy or how he was otherwise prejudiced). As the trial

court further noted:

     [T]he Defendant fails to demonstrate what prejudice the late
     disclosure of photos and loss of the videotape caused. Defense
     counsel conceded that [it was] "not an issue that [the
     photographs] weren’t passed to us in sufficient time.” N.T.,
     10/22/2015, at 15. Thus, the Defendant’s only remaining claim
     regarding preclusion as a sanction for violation of discovery rules
     rests purely around the loss of the videotape. If it becomes
     apparent that a party has failed to comply with Rule 573, the trial
     court has broad discretion in choosing an appropriate remedy.
     The record reflects that it cannot be said the loss of the videotape
     evidence denied the Defendant a fair trial. The detective that had


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      possession of the videotape was called as a witness at trial and
      the Defendant was afforded the opportunity to question, and
      impeach, the detective about the missing videotape. Defense
      counsel specifically asked “And, Officer, you are the only one, and
      the bank manager, perhaps, who’s ever seen this video in this
      entire time.” N.T. [Trial], 10/28/2015, at 160. Further, the trial
      court, in providing instructions to the jury prior to deliberation,
      charged the jury that:

         There is a question about what weight, if any, you should
         give to the failure of the Commonwealth to produce an item
         of potential evidence at this trial. In this case that evidence
         is the video of the incident ... [if you find the three factors
         present] and there is no satisfactory explanation for the
         Commonwealth’s failure to produce the video at this trial,
         you may infer, if you choose to do so, that it would have
         been unfavorable to the Commonwealth.

      N.T. [Trial], 10/29/2015, at 98-99. There exist[] sufficient facts
      within the record to support that the Defendant did not suffer any
      prejudice through the loss of the videotape and the jury was given
      specific instructions regarding its loss. Therefore, the trial court
      did not abuse its discretion by properly denying the preclusion of
      the photographic stills as a sanction for discovery violations.

Trial Court Opinion, 11/29/17, at 24-25.

      In sum, there is no reasonable probability that the outcome of trial

would have changed had Brown had access to the surveillance videotape.

Thus, the trial court did not abuse its discretion in declining to exclude the still

photographs as a discovery sanction, and Brown is entitled to no relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/11/18




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