J-S46007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

ATIBA WICKER

                            Appellant                          No. 819 EDA 2014


          Appeal from the Judgment of Sentence December 18, 2013
            In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0002845-2012
                                         CP-51-CR-0002843-2012
                                         CP-51-CR-0002844-2012


BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                                    FILED AUGUST 13, 2015

        Appellant, Atiba Wicker, appeals from the December 18, 2013

aggregate judgment of sentence of 31 to 72 years’ imprisonment, imposed

after he was found guilty of three counts of aggravated assault, and one

count each of possession of a firearm prohibited and recklessly endangering

another person (REAP).1 After careful review, we affirm.

        The trial court summarized the relevant factual and procedural history

of this case as follows.

                     Philadelphia Police       Officer Tamike Reid testified
              that, at approximately            7:45 p.m. on October 2,
              2011, she was driving            to work at the 18th Police
              District in her personal         vehicle when she observed
____________________________________________
1
    18 Pa.C.S.A. §§ 2702(a), 6105(a) and 2705, respectively.
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          four males standing outside La Pearl Bar, located at
          54th Street and Haverford Avenue in the City of
          Philadelphia. As she approached, she observed a
          taller male, she described as appearing to be the
          “bouncer or security” strike another shorter male.
          She pulled to the corner and observed the shorter
          male get into a black Mercedes and drive away. She
          explained she didn’t take further action because she
          was not in full uniform and had no radio to call for
          backup.

                 Later, while on duty, she heard a citywide high
          priority radio call announcing, “Cars stand by, 19th
          District, 54th and Haverford, report of a shooting at
          La Pearl Lounge.” She immediately drove to La
          Pearl, approximately 10 to 12 blocks away, and
          reported her earlier observations to the assigned
          detective and later in the evening gave him a
          detailed statement of her observations.

                 Philadelphia Police Detective Robert Daly
          testified that on October 2, 2011, he was assigned to
          the Southwest Detectives Division of the Philadelphia
          Police Department located at 55th and Pine Streets in
          the City of Philadelphia, when at approximately 8:30
          p.m. he was assigned as the lead investigator to
          investigate the shooting at La Pearl. On arriving
          there at approximately 9:00 p.m. he immediately
          noticed fired cartridge casings on the ground and
          bullet holes in the front door.       Detective Daly,
          testified that he interviewed and took photographs of
          Mr. Alvin Chandler who had been injured by flying
          glass. He testified that Mr. Chandler told him he was
          at the door at the time of the shooting but was
          unable to give him a description of the shooter.

                After completing his initial investigation at La
          Pearl, Detective Daly proceeded to the Hospital of
          the University of Pennsylvania to interview the other
          two victims of the shooting, Ms. Keisha Beckles and
          Mr. James Rice. He described Ms. Beckles injuries as
          consisting of a large gash across her upper lip and
          out the side from where she got shot in the face.
          After interviewing Ms. Beckles, he next interviewed

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          Mr. Rice in his room. He described Mr. Rice’s room
          as having an open door and filled with his friends.
          He took a brief statement from Mr. Rice in which he
          told Detective Daly that he had seen the shooter but
          gave no description.

                 Detective Daly returned to the Hospital the
          next day with a photo array he had compiled from
          information gathered as a result of his investigation.
          This array did not contain a photograph of
          [Appellant].    Although Mr. Rice was unable to
          identify anyone from the array, he again told
          Detective Daly that, “Yeah, I’ll be able to I.D. him.”

                As the investigation continued, Detective Daly
          maintained contact with Mr. Rice, who refused to
          come into the offices of Southwest Detectives,
          because “he was very apprehensive about coming
          in.” On October 25, 2011 Detective Daly eventually
          got Mr. Rice to meet with him at Central Detective
          Division because it has an underground entrance
          that can’t be seen from the street. At this meeting,
          using the description of the shooter given to him by
          Mr. Rice, Detective Daly created a large computer
          generated photo array.       Mr. Rice identified the
          photograph of one individual, not [Appellant], as
          looking like the shooter but clear that this person
          was not the shooter.

                 Detective Daly, testified that on November 6,
          2011, he received a phone call from Mr. Rice saying,
          “the boy that shot me just called me” from a blocked
          caller I.D. number. On November 10, 2011, after
          spending several days tracing the call back through
          Mr. Rice’s phone carrier, Detective Daly recovered
          the blocked number and called it, reaching Ms.
          Jacquetta Rouse. She told him that on November 6
          she had been on a date with [Appellant], whom she
          just knew as “T,” but was unaware of any phone call
          made to Mr. Rice. She also gave Detective Daly
          [Appellant]’s phone number.           Based on the
          information he received from Ms. Rouse, Detective
          Daly, was able to identify [Appellant] and prepared a
          photo array containing [Appellant]’s photo.       On

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          November 11, 2011, he displayed the array to Mr.
          Rice, who immediately identified [Appellant] as the
          shooter.

                Mr. James Rice testified that on, Sunday,
          October 2, 2011, he was employed at La Pearl Bar
          located at 54th Street and Haverford Avenue in the
          City of Philadelphia. On that particular evening he
          was providing security at the front door.

                He testified that between approximately 7:30
          to 7:45 p.m. [Appellant] threw a drink on one of the
          dancers in the establishment. On seeing this, he
          walked over to [Appellant] saying to him, “Come on
          outside. Let me talk to you for a minute.” After
          going outside [Appellant] appeared to be receptive
          to Mr. Rice’s concerns when another patron, Julius
          Faison, whom he knows as “Drew”, came outside.
          Faison engaged [Appellant] in an argument over the
          drink having spilled on him as well. The verbal
          argument soon led to an exchange of blows between
          the two of them. [Appellant] then went to his car
          and drove off.

                 Mr. Rice testified that approximately thirty to
          forty minutes later [Appellant] returned with a gun
          and asked Mr. Rice, “Where did that guy go?” Being
          preoccupied, he responded, “He’s not here. Give me
          a second.” When others noticed the gun, Mr. Rice
          got everyone inside the bar and closed the door
          behind him. Seconds after closing the door, Mr. Rice
          heard gunshots and was struck in the back by a
          bullet. He also testified that two other people were
          injured as a result of the shooting.

                Mr. Rice was then driven to the hospital in a
          police car for treatment. After receiving treatment,
          Mr. Rice testified he gave a statement to the
          investigating detective.

                 When asked on direct examination why the
          statement he made to Detective Daly in the hospital
          differed from his testimony at trial he responded,
          because “there was probably people inside the

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J-S46007-15


          hospital with me, and I’m not going to be talking to
          the police.” When asked why he would not meet
          with Detective Daly in his offices at 55th and Pine
          Streets, Mr. Rice replied, “It’s my neighborhood. I
          wasn’t going. I would have never went there.” He
          also testified that he had pointedly refused Detective
          Daly’s request to meet him in his office.

                Mr. Rice testified that on November 6, 2011,
          he received a phone call at approximately 2:30 p.m.
          from a blocked phone number. The first voice he
          heard was a female voice followed by a male voice
          who identified himself “T” or “D,” “The person that
          shot you” who then said, “Don’t worry about it I’ll cut
          you a check.”

                Mr. Rice immediately called Detective Daly to
          report this call. Subsequently, on November 11,
          2011, he met with Detective Daly who showed him a
          photo array from which he identified [Appellant]’s
          picture.

                 Ms. Jacquetta Rouse testified that shortly after
          being on a date with [Appellant] she received a
          phone     call from     detectives   inquiring   about
          [Appellant] and his use of her cell phone. She told
          them that at the time she only knew [Appellant] as
          “T” and gave them his phone number. She further
          testified that she was not aware that [Appellant] had
          used her phone nor did she know Mr. Rice. She also
          testified that [Appellant] later admitted to her that
          he had used her phone because he had something
          he wanted to straighten out.

                 Ms. Nicole Cooper testified that [Appellant] has
          been her boyfriend since 2009. She also testified
          that on the evening of October 2, 2011, she
          encountered [Appellant] at La Pearl and got into a
          heated argument, each upset that the other was
          there. After the argument [Appellant] walked away
          and she didn’t see him until later that night. When
          asked about the shooting she testified, “something
          did happen while I was there because I ran out.” “I
          didn’t see anyone get shot.”

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J-S46007-15



                   FBI Special Agent William Shute, a seventeen
            year veteran of the FBI, currently assigned to the
            FBI’s Cellular Analysis Survey Team, was qualified,
            without objection, as an expert in the field of
            historical cell site analysis. Analyzing [Appellant]’s
            cell phone usage records, Agent Shute testified that,
            on October 2, 2011: 1) at 6:41 p.m., [Appellant]’s
            cell phone was located in the vicinity of 11th and
            Spring Garden Streets in the City of Philadelphia,
            east of La Pearl; 2) at 7:07 p.m., usage of the phone
            began to move; 3) at 7:29 p.m., in the immediate
            vicinity of La Pearl; 4) at 7:46 p.m. the phone is on
            the move away from La Pearl heading in the westerly
            direction; 5) at 8:20 p.m, in the vicinity of Cobbs
            Creek Parkway and Walnut Street, west of La Pearl;
            6) at 8:27 p.m., in the vicinity of 63rd Street and
            Lebanon Avenue, west and north of La Pearl; and 7)
            at 8:40 p.m., in the vicinity of Fairmount Park, east
            of La Pearl. Agent Shute also testified that there
            were no calls logged on [Appellant]’s phone between
            8:27 to 8:40 …. He further testified that the route
            between the cell sites of these two calls, would have
            taken [Appellant] through three cell towers, one of
            which is located in the vicinity of La Pearl. The
            usage records indicate that [Appellant] travelled
            directly back to his starting point at 11th and Girard
            from the location of the 8:40 call.

Trial Court Opinion, 9/16/14, at 5-11 (some internal quotation marks and

citations omitted).

      On November 15, 2011, the Commonwealth filed three informations,

charging Appellant with one count each of aggravated assault and

possession of a firearms prohibited at CP-51-CR-2843-2012; one count each

of aggravated assault and REAP at docket number CP-51-CR-2844-2012;

and one count of aggravated assault at docket number CP-51-CR-2845-

2012. Appellant proceeded to a jury trial on February 20, 2013, but the trial

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court declared a mistrial on February 25, 2013. Appellant proceeded to a

second jury trial on May 22, 2013. On June 3, 2013, at the conclusion of the

second trial, the jury found Appellant guilty of all charges. On December 18,

2013, the trial court imposed an aggregate sentence of 31 to 72 years’

imprisonment. Appellant filed a timely post-sentence motion on December

26, 2013, which the trial court denied on March 7, 2014.            On March 18,

2014, Appellant filed a timely notice of appeal.2

       On appeal, Appellant raises four issues for our review.

              I.     Did the trial court err in allowing the testimony
                     of Agent Kelly Ashton as to Appellant’s
                     statements made to her while he was in
                     custody and after his indictment?

              II.    Did the [trial] court err in not allowing Juror
                     #8 to submit his question to the [trial] court in
                     writing so it could either be asked or
                     rephrased, or denied?

              III.   Should this matter be remanded for a hearing
                     on whether there was probable cause to
                     execute a search warrant for Appellant’s cell
                     usage records?

              IV.    Did the [trial] court err when it failed to give a
                     [Commonwealth v. Kloiber, 106 A.2d 820
                     (Pa. 1954)] charge to the jury on identification
                     and omitted any discussion of identification[?]

Appellant’s Brief at 17.



____________________________________________
2
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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J-S46007-15


      Appellant’s first issue pertains to the denial of his motion to suppress.

We begin by noting our well-settled standard of review.

            [I]n addressing a challenge to a trial court’s denial of
            a suppression motion [we are] limited to determining
            whether the factual findings are supported by the
            record and whether the legal conclusions drawn from
            those facts are correct. Since the Commonwealth
            prevailed in 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 record supports the
            factual findings of the trial court, we are bound by
            those facts and may reverse only if the legal
            conclusions drawn therefrom are in error.

Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013)

(some brackets and citation omitted).

      Here, Appellant argues that his statements concerning his being in a

bar and that the police were looking for him, made to Agent Kelly Ashton of

the Pennsylvania Board of Probation and Parole, after the conclusion of a

parole hearing, violated his Sixth Amendment rights under the Counsel

Clause pursuant to the Supreme Court’s decision in Massiah v. United

States, 377 U.S. 201 (1964).      Appellant’s Brief at 21.    In Massiah, the

defendant had already been indicted on several drug offenses and was free

on bail pending trial. Id. at 201. Unbeknownst to Massiah, his co-defendant

had decided to cooperate with the federal authorities and the government

installed a radio transmitter, similar to what is colloquially known as a “wire”

today, in the co-defendant’s car.     Id. at 202-203.     Massiah unknowingly


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J-S46007-15


made several incriminating statements to his co-defendant which the federal

agents listened to via the radio transmitter. Id. at 203.

       The Supreme Court held that the admission of these inculpatory

statements violated Massiah’s Sixth Amendment rights under the Counsel

Clause.

              We hold that the petitioner was denied the basic
              protections of that guarantee when there was used
              against him at his trial evidence of his own
              incriminating words, which federal agents had
              deliberately elicited from him after he had been
              indicted and in the absence of his counsel. It is true
              that in the Spano case the defendant was
              interrogated in a police station, while here the
              damaging testimony was elicited from the defendant
              without his knowledge while he was free on bail.
              But, as Judge Hays pointed out in his dissent in the
              Court of Appeals, “if such a rule is to have any
              efficacy it must apply to indirect and surreptitious
              interrogations as well as those conducted in the
              jailhouse. In this case, Massiah was more seriously
              imposed upon […] because he did not even know
              that he was under interrogation by a government
              agent.”

Id. at 206.

       In the case sub judice, Appellant argues that Massiah requires the

suppression of Appellant’s statements to Agent Ashton.           However, here,

Agent Ashton testified that Appellant himself initiated the conversation by

waving her over to him.          N.T., 1/11/13, at 11-12.3   Although Appellant’s


____________________________________________
3
  We note the cover page on the transcript erroneously lists the date of the
testimony as January 11, 2012.



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Sixth Amendment right to counsel had attached, Massiah only applies to

statements elicited by the Commonwealth or its agents through some

affirmative action.   Massiah, supra.    Our Supreme Court has recognized

this distinction. See Commonwealth v. Mayhue, 639 A.2d 421, 436 (Pa.

1994) (finding there was no violation of Massiah where Mayhue initated

conversations with a jailhouse informant).   Based on these considerations,

we conclude the trial court properly denied Appellant’s motion to suppress

on this basis. See Washington, supra.

      In Appellant’s second issue, he avers that the trial court “erred in not

allowing juror number 8 to submit his question to the [trial] court so that it

could be asked[.]” Appellant’s Brief at 24. However, before we may review

this issue, we must determine whether it has been properly preserved for

our review, as the trial court concludes Appellant waived this issue by not

objecting during the trial.

      It is axiomatic that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Our

Supreme Court has repeatedly emphasized the importance of issue

preservation.

                    Issue preservation is foundational to proper
            appellate review. Our rules of appellate procedure
            mandate that “[i]ssues not raised in the lower court
            are waived and cannot be raised for the first time on
            appeal.” Pa.R.A.P. 302(a). By requiring that an issue
            be considered waived if raised for the first time on
            appeal, our courts ensure that the trial court that
            initially hears a dispute has had an opportunity to

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J-S46007-15


           consider the issue. This jurisprudential mandate is
           also grounded upon the principle that a trial court,
           like an administrative agency, must be given the
           opportunity to correct its errors as early as possible.
           Related thereto, we have explained in detail the
           importance of this preservation requirement as it
           advances the orderly and efficient use of our judicial
           resources. Finally, concepts of fairness and expense
           to the parties are implicated as well.

In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations

omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super.

2013) (citation omitted).

     Instantly, the following exchange occurred at the end of redirect

examination of a defense witness.

           Juror No. 8:       I have a question.

           The Court: We don’t do questions.       But the court
           officer will speak to you.

                 Do you have any recross?

           [Commonwealth]:          No.

           [Defense Counsel]:       I apologize there was one
           other thing.

           The Court: Okay.

                                      …

           The Court: In    some    jurisdictions,   not   in
           Pennsylvania, in some jurisdictions jurors can ask
           questions.

N.T., 5/30/13, at 81-82. We have reviewed the transcript and are unable to

locate any place in the record where Appellant made a contemporaneous


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J-S46007-15


objection to the trial court’s answer to the juror’s request. As a result, we

deem this claim waived on appeal.4

       We elect to address Appellant’s final two issues together. In his third

issue, Appellant asks that this Court remand this case for a new suppression

hearing as to whether a search warrant obtained for Appellant’s cell phone

records was supported by probable cause. Appellant’s Brief at 36. In his

fourth issue, Appellant avers the trial court erred in not giving a Kloiber

instruction to the jury.      Id. at 38, 44.

       By its plain text, Rule 1925(b) requires that statements “identify each

ruling or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge.”          Pa.R.A.P. 1925(b)(4)(ii).    The

Rule also requires that “[e]ach error identified in the Statement will be

deemed to include every subsidiary issue contained therein which was raised

in the trial court ….” Id. at 1925(b)(4)(v). Finally, any issues not raised in

accordance     with    Rule    1925(b)(4)      will   be   deemed   waived.   Id.    at

1925(b)(4)(vii). Our Supreme Court has held that Rule 1925(b) is a bright-

line rule.

              Our jurisprudence is clear and well-settled, and
              firmly establishes that: Rule 1925(b) sets out a
              simple bright-line rule, which obligates an appellant
              to file and serve a Rule 1925(b) statement, when so
____________________________________________
4
  As this issue is waived, we express no opinion on the larger question of
whether, and under what circumstances, juror questioning should be
permissible in Pennsylvania.



                                          - 12 -
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              ordered; any issues not raised in a Rule 1925(b)
              statement will be deemed waived; the courts lack
              the authority to countenance deviations from the
              Rule’s terms; the Rule’s provisions are not subject to
              ad hoc exceptions or selective enforcement;
              appellants and their counsel are responsible for
              complying with the Rule’s requirements; Rule 1925
              violations may be raised by the appellate court sua
              sponte, and the Rule applies notwithstanding an
              appellee’s request not to enforce it; and, if Rule
              1925 is not clear as to what is required of an
              appellant, on-the-record actions taken by the
              appellant aimed at compliance may satisfy the Rule.
              We yet again repeat the principle first stated in
              [Commonwealth v.] Lord, [719 A.2d 306 (Pa.
              1998)] that must be applied here: “[I]n order to
              preserve    their  claims   for   appellate   review,
              [a]ppellants must comply whenever the trial court
              orders them to file a Statement of Matters
              Complained of on Appeal pursuant to Pa.R.A.P. 1925.
              Any issues not raised in a Pa.R.A.P. 1925(b)
              statement will be deemed waived.” [Id.] at 309.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).

       In this case, Appellant’s Rule 1925(b) statement fails to list any claim

addressing a Kloiber instruction, or any suppression issue apart from the

statements     made     to   Agent Ashton.          See Appellant’s Rule   1925(b)

Statement, 4/14/14, at 1-2.           As a result, Appellant may not raise these

issues for the first time on appeal.           Therefore, we deem these two claims

waived.5


____________________________________________
5
  For the same reason, Appellant’s separate application for remand to litigate
a suppression motion on the basis of Riley v. California, 134 S. Ct. 2473
(2014), is denied.




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J-S46007-15


       Based on the foregoing, we conclude all of Appellant’s issues on appeal

are either waived or devoid of merit.6               Accordingly, the trial court’s

December 18, 2013 judgment of sentence is affirmed.

       Judgment of sentence affirmed.              Application for remand denied.

Application for extension of time to file brief denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2015




____________________________________________
6
 The Commonwealth’s application for an extension of time to file its brief is
denied.



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