J-S64022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NIEJEA FRANKLIN STERN,

                            Appellant                  No. 1959 MDA 2016


             Appeal from the Judgment of Sentence August 8, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0005134-2014


BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                         FILED NOVEMBER 22, 2017

        Appellant, Niejea Franklin Stern, appeals from the judgment of

sentence entered following his convictions of first-degree murder and

firearms not to be carried without a license.1           We vacate Appellant’s

judgment of sentence and remand for resentencing.

        The trial court summarized the factual history of this case as follows:

              The testimony at trial showed that on August 19, 2014, in
        the area of Hall Manor, Harrisburg, Pennsylvania, Malik Stern-
        Jones (“victim”) was shot and murdered.4 The victim was killed
        by a gunshot wound to the right side of his neck while the victim
        was sitting in a car. N.T. at 35. Dr. Wayne Ross, an expert
        forensic pathologist, testified that 12 gauge Federal Triball
        ammunition from a 12 gauge shotgun was used to kill the victim.
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S. §§ 2501(a)(1) and 6105(a)(1), respectively.
J-S64022-17


     N.T. at 52-54. Dr. Ross also indicated that the shot was fired 5-
     7 feet away from the window of the car and that the cause of
     death was a gunshot wound to the neck. N.T. at 59, 62.

          4 Transcript of Proceedings, Jury Trial, February 29,
          2016, March 1-3, 2016, pages 25, 36 (hereinafter
          “N.T. at ___”).

           Nicole Coleman, a resident of Hall Manor, was drinking at a
     nearby friend’s place in the early morning hours of August 19,
     2014. N.T. at 81, 86. She went back home to pick up a couple
     of more beers and noticed a young man that seemed out of
     place. N.T. at 89-90. Ms. Coleman noticed that he was wearing
     a neon green hooded sweatshirt with a white logo on it. N.T. at
     92, 93. Additionally, Ms. Coleman noticed that this young man
     was carrying a shotgun. N.T. at 94. She indicated the direction
     this young man was walking and shortly thereafter heard two
     shots fired and heard a car crash. N.T. at 97-98. While in her
     travels around the neighborhood that evening, Ms. Coleman
     noticed two individuals, Jessie and Freddie Jay, hanging around
     a car. N.T. at 101. Finally, Ms. Coleman identified [Appellant]
     as the person she encountered on the morning of the incident.
     N.T. at 104. The Commonwealth introduced the testimony of
     Freddie Jay Williams5 from a preliminary hearing held on
     September 30, 2014. N.T. at 130.

          5   Deceased.

           David Lee testified that [Appellant] showed up at his house
     around 6:00 a.m. on August 19, 2014 and told him what
     happened. N.T. at 142. Mr. Lee testified that [Appellant] was
     wearing a green hoodie. N.T. at 143. Officer Jeffrey T. Cook, of
     the Harrisburg Police Department, described how [Appellant
     was] arrested. N.T. 172-177. Officer Cook also testified that
     when [Appellant] was arrested, he was wearing a green Notre
     Dame sweatshirt (a Kelly green or emerald green). N.T. at 177.
     The Commonwealth, through Officer Cook, introduced a
     Facebook photo that shows [Appellant] holding a shotgun. N.T.
     at 182. The Commonwealth also introduced the testimony of
     two forensic scientists, Susan Antwood and Michael Gorski 6, who
     performed gunshot residue analysis.

          6   See generally N.T. at 230-267.


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Trial Court Opinion, 2/7/17, at 3-4.

      On March 3, 2016, a jury convicted Appellant of the crimes stated

above. On August 8, 2016, the trial court sentenced Appellant to serve a

term of incarceration of life without the possibility of parole for the first-

degree murder conviction and a concurrent term of incarceration of eighteen

to thirty-six months for the firearms violation. Appellant filed a timely post-

sentence motion on August 18, 2016, and the Commonwealth filed an

answer on August 26, 2016. On November 9, 2016, the trial court denied

Appellant’s post-sentence motion.       This timely appeal followed.       Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I. Whether the trial court erred in admitting the preliminary
      hearing testimony of Freddie Williams into evidence at trial
      where such admission violated Appellant’s rights under the 6th
      Amendment of the United States Constitution and Article 1,
      Section 9 of the Pennsylvania Constitution and where
      [Appellant’s] counsel did not have a full and fair opportunity for
      cross examination?

      II. Whether Appellant’s sentence of life without parole is in
      violation of the 8th Amendment to the United States Constitution,
      the United States Supreme Court decisions in Miller v.
      Alabama, 132 S.Ct. 2455, 183 L.Ed.2d 307 (2012) and
      Montgomery v. Louisiana, 136 S.Ct 718, 193 L.Ed[.]2d. 599
      (2016), and Appellant’s right to due process under both the
      United States and Pennsylvania Constitutions?

      III. Whether the trial court abused its discretion in sentencing
      Appellant to life without parole where such a sentence is
      excessive and unreasonable and constitutes too severe a
      punishment in light of the rehabilitative needs and age of
      Appellant and where the punitive measures inherent in the
      sentencing scheme could have been accomplished with the

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      imposition of a lesser sentence pursuant to the statutory
      mandatory minimum under 18 Pa.C.S.A. § 1102.1?

      IV. Whether the trial court erred in failing to suppress the photo
      array identification of Appellant by Freddie Williams, Nicole
      Coleman, and David Lee, and any subsequent identifications of
      Appellant?

Appellant’s Brief at 6-7.

      Appellant first argues that the trial court erred in denying his motion to

suppress and admitting at trial the preliminary-hearing testimony offered by

Freddie Williams.     Appellant’s Brief at 17-22.     Appellant asserts that his

defense counsel was not provided a fair opportunity to cross-examine Mr.

Williams   at   the   preliminary   hearing,   thus   rendering   the   testimony

inadmissible.

      With respect to an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

      Our standard of review in addressing a challenge to a trial
      court’s denial of a suppression motion is whether the factual
      findings are supported by the record and whether the legal
      conclusions drawn from those facts are correct. When reviewing
      the ruling of a suppression court, we must consider only the
      evidence of the prosecution and so much of the evidence of the
      defense as remains uncontradicted when read in the context of
      the record. . . . Where the record supports the findings of the
      suppression court, we are bound by those facts and may reverse
      only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). Moreover, we note that our scope of review from a suppression

ruling is limited to the evidentiary record that was created at the

suppression hearing. In re L.J., 79 A.3d 1073, 1087 (Pa. 2013).

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      Further, we are aware that Pa.R.Crim.P. 581, which addresses the

suppression of evidence, provides in relevant part as follows:

      (H) The Commonwealth shall have the burden . . . of
      establishing that the challenged evidence was not obtained in
      violation of the defendant’s rights.

Pa.R.Crim.P. 581(H).

      In addition, the decision to admit or exclude evidence is committed to

the trial court’s sound discretion, and its evidentiary rulings will only be

reversed upon a showing that it abused that discretion. Commonwealth v.

Laird, 988 A.2d 618, 636 (Pa. 2010).        Such a finding may not be made

“merely because an appellate court might have reached a different

conclusion, but requires a result of manifest unreasonableness, or partiality,

prejudice, bias, or ill-will, or such lack of support so as to be clearly

erroneous.”   Id. (quoting Commonwealth v. Sherwood, 982 A.2d 483,

495 (Pa. 2009)).

      Hearsay testimony is not admissible in this Commonwealth, except as

provided in the Pennsylvania Rules of Evidence, by other rules prescribed by

the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. Hearsay has

been defined as a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.    Pa.R.E. 801(c).    Commonwealth v. Smith, 586 A.2d

957, 963 (Pa. Super. 1991).       “The rationale for the hearsay rule is that




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hearsay is too untrustworthy to be considered by the trier of fact.”

Commonwealth v. Bean, 677 A.2d 842, 844 (Pa. Super. 1996).

      Pa.R.E. 804 sets forth exceptions to the rule against hearsay when the

declarant is unavailable as a witness and provides, in relevant part, as

follows:

      (a) Criteria for Being Unavailable. A declarant is considered
      to be unavailable as a witness if the declarant:

                                    ***

            (4) cannot be present or testify at the trial or
            hearing because of death, . . .

      (b) The Exceptions. The following are not excluded by the rule
      against hearsay if the declarant is unavailable as a witness:

            (1) Former Testimony. Testimony that:

                  (A) was given as a witness at a trial, hearing,
            or lawful deposition, whether given during the
            current proceeding or a different one; and

                   (B) is now offered against a party who had--
            or, in a civil case, whose predecessor in interest had-
            -an opportunity and similar motive to develop it by
            direct, cross-, or redirect examination.

Pa.R.E. 804(a)(4), (b)(1).

      “Under both the Pennsylvania and United States Constitutions, a

criminal defendant has a right to confront and cross-examine the witnesses

against him.” Commonwealth v. McCrae, 832 A.2d 1026, 1035 (Pa.

2003); U.S. Const. Amend. VI (“In all criminal prosecutions, the accused

shall enjoy the right ... to be confronted with the witnesses against him[.]”);


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Pa. Const. art. I, § 9 (“In all criminal prosecutions the accused hath a right

... to be confronted with the witnesses against him[.]”). “It is well-

established, however, that the introduction of an unavailable witness’s prior

recorded testimony from a preliminary hearing is admissible at trial and will

not offend the right of confrontation, provided the defendant had counsel

and a full opportunity to cross-examine that witness at the hearing.”

McCrae, 832 A.2d at 1035. A defendant asserting a lack of a full and fair

opportunity for cross examination must establish that he or she was

deprived of “vital impeachment evidence.”         Commonwealth v. Cruz–

Centeno, 668 A.2d 536, 543 (Pa. Super. 1995).              “Vital impeachment

evidence” includes prior inconsistent statements of the witness or the

witness’s criminal record. Id. at 543.

      In addressing this issue, the trial court offered the following analysis:

            As Mr. Williams was unavailable due to his passing, we
      must now look to see whether [Appellant’s] counsel had a full
      opportunity to cross-examine Mr. Williams. The Commonwealth
      introduced [at trial], through Commonwealth’s Exhibit number 7,
      a recording of the testimony of Mr. Williams taken at the
      preliminary hearing.         N.T.[, 2/29/16-3/3/16,] at 130.
      [Appellant’s] counsel [at the preliminary hearing], the same
      counsel that represented [Appellant] at the time of trial,
      engaged in extensive cross-examination of Mr. Williams.15
      Additionally, defense counsel put an objection on the record
      during direct-examination.

            15  This Court notes that the recording was
            approximately thirty (30) minutes long. Of that time,
            twenty-three (23) minutes was cross-examination
            performed by defense counsel.




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           In Commonwealth            v.    McCrae,     the    Pennsylvania
      Supreme Court held:

            Because statements within established hearsay
            exceptions possess the imprimatur of “longstanding
            judicial and legislative experience,” their reliability is
            presumed. Idaho v. Wright, 497 U.S. 805, 817,
            110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). Similarly,
            although a statement admissible under an exception
            to the hearsay rule may nonetheless be inadmissible
            under the state and federal confrontation clauses if it
            does not bear “adequate indicia of reliability[,] ...
            reliability can be inferred without more in a case
            where the evidence falls within a thinly rooted
            hearsay exception.” Id. at 815, 110 S.Ct. 3139.
            Alleged prior inconsistencies-such as appellant
            identifies-are classic points affecting evidentiary
            weight and not admissibility.      The weight to be
            accorded the testimony, of course, is for the jury.

      Commonwealth v. McCrae, 832 A.2d 1026, 1035-[103]6 (Pa.
      2003) (internal citations omitted).     [Appellant] alleges [that
      there were] inconsistencies found between Mr. Williams’
      testimony at the preliminary hearing and those [statements]
      given [by Mr. Williams] to the police. Here, however, Mr.
      Williams’ testimony is consistent in identifying [Appellant] as the
      individual who approached the car the victim was ultimately shot
      in and in observing [Appellant] draw a “long-gun.” Finally, the
      weight afforded to Mr. Williams’ testimony, along with all other
      testimony, is for the jury to decide.

Trial Court Opinion, 2/7/17, at 9-10.

      It is undisputed that Mr. Williams testified at Appellant’s preliminary

hearing and that Mr. Williams was murdered prior to Appellant’s trial. Our

review of the record confirms that Appellant was represented by counsel at

his preliminary hearing. N.T., 9/30/14, at 2. At the preliminary hearing, Mr.

Williams was called as a witness by the Commonwealth and offered

testimony spanning fourteen and one-half pages.               Id. at 7-21.    The

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Commonwealth’s      direct   examination    of   Mr.   Williams   consists   of

approximately four and one-half pages of testimony.         Id. at 7-12.     In

addition, during direct examination, Appellant’s defense counsel lodged an

objection to a line of questioning posed by the Commonwealth pertaining to

Mr. Williams’s observation of the perpetrator pulling out a firearm.    Id. at

11. Subsequently, defense counsel conducted a thorough cross-examination

of Mr. Williams, consisting of approximately ten full pages of testimony,

which was twice as long as the direct examination. Id. at 12-21.

      Furthermore, our review reveals that, during the cross-examination,

defense counsel inquired about the fact that Mr. Williams had been in the

area of the shooting to sell drugs on the night of the incident, that Mr.

Williams was an inmate at Dauphin County Prison while he was providing his

testimony, and that Mr. Williams had been picked up on a parole violation.

Id. at 13-14.   Also, defense counsel thoroughly challenged Mr. Williams’

ability to recollect the perpetrator of the shooting and other details of the

night of the incident.   Id. at 14-20.   Defense counsel also questioned Mr.

Williams about his previous acquaintanceship with Appellant. Id. at 19-20.

Further, defense counsel inquired into the number of times that Mr. Williams

had met with the assistant district attorney and police detectives prior to

testifying at the preliminary hearing, and whether they had made any

promises or offers to Mr. Williams. Id. at 20-21.




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      In addition, we have reviewed the transcript of the voluntary

statement Mr. Williams gave to police on August 20, 2014, and conclude that

his statement to the police with regard to the incident was substantially

consistent    with   the   testimony    provided   at   the   preliminary   hearing.

Commonwealth’s Pretrial Exhibit 2.           Also, having reviewed Mr. Williams’s

criminal history, we conclude that Appellant’s defense counsel had ample

opportunity to question the witness regarding his criminal record.            Thus,

Appellant’s counsel had a full and fair opportunity to cross-examine Mr.

Williams at the preliminary hearing, and the trial court properly admitted the

evidence at trial.

      We observe that, in support of his argument, Appellant relies upon our

Supreme Court’s decision in Commonwealth v. Bazemore, 614 A.2d 684

(Pa. 1992).     In Bazemore, the defendant was charged with attempted

burglary.    Id. at 685.     The sole witness to the incident testified at the

defendant’s preliminary hearing.       Id.    At the preliminary hearing, defense

counsel was not aware that the witness had made a prior inconsistent

statement to the police, that the witness had a criminal record, or that the

Commonwealth was considering charging the witness for his own actions in

connection with the incident.     Id.    At trial, the witness asserted his Fifth

Amendment right against self-incrimination and was unavailable to testify.

Id. The defendant argued that the witness’s preliminary hearing testimony

should not be admitted because the defendant did not have a full and fair


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opportunity to cross-examine the witness. Id. at 687. Our Supreme Court

held that, because defense counsel was unaware of the prior inconsistent

statement, despite the fact that the Commonwealth had no obligation to

provide it to the defense prior to the preliminary hearing, counsel was

prevented from impeaching the witness, and there was no fair and full

opportunity to cross-examine. Id. at 687. The Court focused on the vital

importance of the witness’s credibility as the sole witness to the alleged

crime.   Id. at 687-688.    The Court emphasized that the Commonwealth

disbelieved its own witness, as evidenced by the fact that the witness was

later charged. The High Court found that to allow the Commonwealth to use

testimony it disbelieved would result in miscarriage of justice. Id. at 688.

      However, here Mr. Williams was not the sole witness to identify

Appellant as the perpetrator of the crime.           Unlike the situation in

Bazemore, there is no indication that the Commonwealth disbelieved Mr.

Williams’s testimony or that his criminal record indicated he had a

connection to the incident such that the admission of his testimony would

result in miscarriage of justice.   Because Mr. Williams was not the sole

witness, his credibility was less vital to the case, and Appellant had the

opportunity to present evidence to impeach that credibility. Our review of

the law and the record supports the trial court’s admission of the preliminary

hearing testimony offered by Mr. Williams.      Consequently, we discern no




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error on the part of the trial court, and Appellant is not entitled to relief on

this issue.

        Appellant next argues that his sentence of life imprisonment without

parole is illegal because he was only fifteen at the time of his crime.

Appellant’s Brief at 22-29. Appellant contends that his sentence amounted

to cruel and unusual punishment, in violation of the Eighth Amendment of

the United States Constitution and the decisions of the United States

Supreme Court in Miller v. Alabama, 567 U.S. 460 (2012), and

Montgomery v. Louisiana, 136 S.Ct. 718 (2016).

        Pursuant to Commonwealth v. Batts, 66 A.3d 286, 294-296 (Pa.

2013) (“Batts I”), a juvenile may be sentenced to life without parole only if

the trial court considers the appropriate age-related factors detailed in

Miller. The trial court sentenced Appellant under a provision of the Crimes

Code, 18 Pa.C.S. § 1102.1,2 that was enacted after the decision in Miller to


____________________________________________


2   Section 1102.1(d) provides as follows:

        (d) Findings. — In determining whether to impose a sentence
        of life without parole under subsection (a), the court shall
        consider and make findings on the record regarding the
        following:

              1)    The impact of the offense on each victim,
              including oral and written victim impact statements
              made or submitted by family members of the victim
              detailing the physical, psychological and economic
              effects of the crime on the victim and the victim’s
(Footnote Continued Next Page)


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provide that various findings be made by the trial court on the record prior

to determining whether to impose a sentence of life without parole on a

juvenile convicted of first-degree murder.

      However, on June 26, 2017, during the pendency of this appeal, our

Supreme Court decided a second appeal in Commonwealth v. Batts, 163
(Footnote Continued) _______________________

             family. A victim impact statement may include
             comment on the sentence of the defendant.

             (2) The impact of the offense on the community.

             (3) The threat to the safety of the public or any
             individual posed by the defendant.

             (4) The nature and circumstances of the offense
             committed by the defendant.

             (5) The degree of the defendant’s culpability.

             (6)   Guidelines for sentencing and resentencing
             adopted by the Pennsylvania Commission on
             Sentencing.

             (7) Age-related characteristics of the defendant,
             including:

                    (i) Age.
                    (ii) Mental capacity.
                    (iii) Maturity.
                    (iv) The degree of criminal sophistication
                    exhibited by the defendant.
                    (v) The nature and extent of any prior
                    delinquent or criminal history, including
                    the success or failure of any previous
                    attempts by the court to rehabilitate the
                    defendant.
                    (vi) Probation or institutional reports.
                    (vii) Other relevant factors.



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A.3d 410 (Pa. 2017) (“Batts II”), in which it required the following

additional safeguards beyond those set forth in Section 1102.1:

      [T]o effectuate the mandate of Miller and Montgomery,
      procedural safeguards are required to ensure that life-without-
      parole sentences are meted out only to “the rarest of juvenile
      offenders” whose crimes reflect “permanent incorrigibility,”
      “irreparable corruption” and “irretrievable depravity,” as required
      by Miller and Montgomery.             . . .    [W]e recognize a
      presumption against the imposition of a sentence of life without
      parole for a juvenile offender. To rebut the presumption, the
      Commonwealth bears the burden of proving, beyond a
      reasonable doubt, that the juvenile offender is incapable of
      rehabilitation.

Id. at 415-416.    In Batts II, the Supreme Court vacated the appellant’s

sentence and remanded for a new sentencing hearing. Id. at 460.

      The trial court did not have the benefit of our Supreme Court’s

decision in Batts II, which established the rebuttable presumption against a

sentence of life without parole for a juvenile offender.    To its credit, the

Commonwealth has acknowledged that there is a presumption against

sentencing a juvenile to life in prison without the possibility of parole under

Batts II, and it has requested that this Court remand for resentencing.

Commonwealth’s Brief at 16. Accordingly, we vacate Appellant’s judgment

of sentence and remand for further proceedings consistent with Batts II.

      In his third issue, Appellant argues that the trial court abused its

discretion in sentencing him to a term of life without parole.     Appellant’s

Brief at 30-32.   Appellant contends that the sentence was “excessive and

unreasonable and constitutes too severe a punishment in light of the


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rehabilitative needs of the Appellant and where the punitive measures

inherent in this sentencing scheme could have been accomplished with the

imposition of a lesser sentence pursuant to the mandatory minimum under

the statu[t]e 18 Pa.C.S.A. § 1102.1.” Id. at 30. Due to our disposition of

Appellant’s previous issue challenging the sentence imposed in this matter,

we need not address the instant issue raised by Appellant.

       Appellant last argues that the trial court erred in failing to suppress

the photographic-array identifications of three witnesses.     Appellant’s Brief

at 32-35.     Essentially, Appellant contends that his right to have counsel

present during the presentation of a photo array subsequent to his arrest

was violated by the police and that the photographic array was unduly

suggestive. Id. at 34-35.

       As we previously mentioned, the admission or exclusion of evidence is

committed to the sound discretion of the trial court, and its evidentiary

rulings will only be reversed upon a showing that it abused that discretion.

Laird, 988 A.2d at 636. Under the federal Constitution, after the filing of

formal charges, a suspect becomes an accused, and the Sixth Amendment

right to counsel attaches.3 Maine v. Moulton, 474 U.S. 159, 170 (1985).

____________________________________________


3 The Sixth Amendment to the United States Constitution states, in relevant
part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ...
to have the Assistance of Counsel for his defence.” U.S. Const. Amend. VI.
The constitutional right to counsel provided under the Sixth Amendment of
the United States Constitution is coterminous with the right to counsel
(Footnote Continued Next Page)


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In Pennsylvania, however, our courts have seen fit to hold that the right to

Sixth     Amendment         protection    adheres        at    the    time     of   arrest.

Commonwealth           v.    Karash,     518      A.2d        537,   541     (Pa.   1986);

Commonwealth v. Rishel, 582 A.2d 662, 665 (Pa. Super. 1990).

Moreover, this Commonwealth has long recognized that, subsequent to an

arrest, “[a] suspect has the right to be represented by counsel at a

photograph array.” Commonwealth v. Sanders, 551 A.2d 239, 246 (Pa.

Super. 1988) (citing Commonwealth v. Whiting, 266 A.2d 738 (Pa.

1970), cert denied, 400 U.S. 919 (1970)). This Court has explained that “in

Pennsylvania, the right to counsel at a photographic array does not attach

when the suspect is in custody for a different offense than that for which the

array has been compiled.” Commonwealth v. Blassingale, 581 A.2d 183,

190 (Pa. Super. 1990) (citing Commonwealth v. McKnight, 457 A.2d 931

(Pa. Super. 1983)).

        The trial court presented the following rationale in concluding that this

claim lacked merit:

              Here, [Appellant] does not establish that he was in custody
        for these charges. To the contrary, Officer Cook testified that
        [Appellant] had a juvenile probation warrant from escaping from
        placement.9 N.T. Suppression at 12. Officer Cook also testified
        that he wanted to speak to [Appellant] to see if he had any
        information about a homicide that recently took place. Id. At
(Footnote Continued) _______________________

Article I, Section 9 of the Pennsylvania Constitution.               Commonwealth v.
D'Amato, 856 A.2d 806, 821 n.14 (Pa. 2004).



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      this point, he is merely a suspect in the homicide and has not
      been [formally] charged with anything. Id. at 14. [Appellant]
      was [formally] charged sometime in the afternoon on August
      20th, 2014 after Freddie Williams, Nicole Coleman, and David Lee
      were shown photograph[ic] arrays. N.T. Suppression at 14-16.
      As [Appellant] was arrested on a separate charge (warrant for
      escaping from transport) and was not [formally] charged until
      after all photo array identifications were complete, this issue is
      without merit.

             9   [Appellant] had actually escaped from transport.

Trial Court Opinion, 2/7/17, at 5 (emphasis in original).

      Our review of the record reflects that the murder in this case was

committed at approximately 5:00 a.m. on August 19, 2014. N.T., 2/22/16,

at 11.   Appellant was taken into custody at approximately 1:00 p.m. on

August 19, 2014, pursuant to an active warrant from juvenile probation for

escape, not for the instant murder.         Id. at 11-12.   Police showed one

photographic array to Nicole Coleman on August 19, 2014, and she identified

Appellant and another gentleman as possible suspects. Id. at 14-15. In the

late morning or early afternoon of August 20, 2014, the police compiled a

second photographic array containing a more recent photograph of Appellant

and presented it to Ms. Coleman, David Darnel Lee, and Freddie Williams.

Id. at 15-16. Appellant was formally charged by criminal complaint with the

offenses in this case at approximately 3:30 or 4:00 p.m. on August 20,

2014, after the photographic array was presented to the three witnesses.

Id. at 14.       Therefore, Appellant did not have a right to counsel at the




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photographic line-up presented to the witnesses earlier that day.           Hence,

Appellant’s claim in this regard lacks merit.

      Appellant also argues that the photographic array was unduly

suggestive, thus requiring that the photographic-array identifications and

subsequent identifications should have been suppressed. Appellant’s Brief at

35.   Specifically, Appellant asserts that he was the only person wearing

green in the photographic line-up, and that he had a “darker complexion”

than the other individuals in the array. Id.

      With regard to a claim that a photographic array is unduly suggestive,

our Supreme Court has instructed that a photographic identification is

unduly   suggestive   if,   under   the   totality   of   the   circumstances,   the

identification procedure creates a substantial likelihood of misidentification.

Commonwealth v. DeJesus, 860 A.2d 102, 112 (Pa. 2004) (citing

Commonwealth v. Johnson, 668 A.2d 97 (Pa. 1995)).

      ‘Whether 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), cert. denied, 530 U.S. 1216,
      120 S.Ct. 2220, 147 L.Ed.2d 252 (2000). We will not suppress
      such identification “unless the facts demonstrate that the
      identification procedure was ‘so impermissibly suggestive as to
      give rise to a very substantial likelihood of irreparable
      misidentification.’’’ Id. (quoting Simmons v. United States,
      390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968)).

Commonwealth v. Burton, 770 A.2d 771, 782 (Pa. Super. 2001).                     The

variance between the photographs in an array does not necessarily establish

grounds for suppression of a victim’s identification. Id. “Photographs used

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in line-ups are not unduly suggestive if the suspect’s picture does not stand

out more than those of the others, and the people depicted all exhibit similar

facial characteristics.”     Commonwealth v. Fisher, 769 A.2d 1116, 1126

(Pa. 2001).     “[E]ach person in the array does not have to be identical in

appearance.”      Burton, 770 A.2d at 782.         The photographs in the array

should all be the same size and should be shot against similar backgrounds.

Commonwealth v. Thomas, 75 A.2d 921 (Pa. Super. 1990).4

       We have thoroughly reviewed the photographic array in question. We

observe that the array contains eight color photographs of young men,

appearing to be of the same race and close in age, which were taken in front

of similar backgrounds.        The photographs were practically identical in size

and shape. Of the eight photographs, four showed men wearing white tee-

shirts, one contained a man wearing a light pink tee-shirt, one depicted a

man wearing a light grey tee-shirt, one contained a man wearing a dark`
____________________________________________


4 In addition, we recognize that our courts have affirmed the denial of
suppression even where the photograph in contention bears some
distinguishing feature not shared by the remaining photographs.            See
Fisher, 769 A.2d at 1126-1127 (finding array not unduly suggestive where
witnesses described the suspect as a light-skinned African-American male
with freckles and a goatee, while only six of the eight pictures in the line-up
showed men with goatees, and only the picture of the appellant showed a
man with freckles); Commonwealth v. Blassingale, 518 A.2d 183, 189-
190 (Pa. Super. 1990) (concluding array was not impermissibly suggestive
because, even though defendant was the only subject who had a glass eye,
two other subjects had unusual eye characteristics); Commonwealth v.
Monroe, 542 A.2d 113, 115 (Pa. Super. 1988) (concluding array was not
impermissibly suggestive, even though defendant was the only bald man
pictured, because several other subjects had very short haircuts).



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blue polo-type shirt that was completely buttoned to the collar, and in

Appellant’s photograph he was wearing a light green tee-shirt.          While the

witnesses may have indicated that the perpetrator of the shooting was

wearing   a   green   hooded   sweatshirt,     we   cannot   conclude   that   the

photographic array was unduly suggestive, thereby creating a substantial

likelihood of misidentification simply because Appellant happened to be

wearing a light green article of clothing in his photograph.

      Moreover, our review reveals that the young men in the photographs

all had similar skin complexions. To the extent that one or possibly two of

the photographs may contain men having a slightly darker skin complexion

than the remaining six, it is our observation that neither of those two

photographs was of Appellant.      Thus, we conclude that the photographic

array was not unduly suggestive for these reasons. Accordingly, Appellant’s

claim that the identifications should have been suppressed because the

photographic array was unduly suggestive lacks merit.

      Judgment of sentence vacated.           Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2017

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