J-S71035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARLON GOODMAN                             :
                                               :
                       Appellant               :   No. 3375 EDA 2017

            Appeal from the Judgment of Sentence August 17, 2015
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003084-2013


BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                          FILED FEBRUARY 19, 2019

        Appellant Marlon Goodman appeals from the judgment of sentence

imposed following his convictions for first-degree murder, persons not to

possess firearms, carrying a firearm without a license, and possessing an

instrument of crime (PIC).1         Appellant claims that the police employed an

unduly suggestive identification procedure and certain testimony violated his

rights under the Confrontation Clause. We affirm.

        The trial court summarized the relevant facts of this case as follows:

        On October 1, 2012 around 3:50 p.m., the decedent, Donald
        Wesley (“Wesley”), the mother of his child, Janeeka Lindsey
        (“Lindsey”), and their young son were in Lindsey’s car in front of
        Rita Precia’s (“Precia”) house at 1726 North Hollywood Street in
        the City and County of Philadelphia. Lindsey’s grandmother lived
        on the block and Wesley was dropping Lindsey and the child off.
        Precia was sitting outside on her top step. Lateefah Shakur
        (“Shakur”) was visiting her mother-in-law who lived across the
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1   18 Pa.C.S. §§ 2502(a), 6105(a)(1), 6106(a)(1), and 907(a), respectively.
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        street from Precia at 1721 North Hollywood. Shakur was walking
        down the steps of her mother-in-law’s house to retrieve her baby
        when she saw Appellant, who was unfamiliar to her, running out
        of a grassy lot across the street yelling, “Bitch you thought it was
        over.” Appellant came to a full stop in front of house 1728 in the
        middle of North Hollywood Street, looked at the car, and pulled a
        silver handgun from his side. Lindsey first noticed Appellant, who
        was unfamiliar to her, approximately fifteen (15) feet away in
        front of the car. Appellant shot once at Wesley, Wesley put the
        car in reverse and Appellant shot at him four or five (4-5) more
        times. Appellant began running away back toward the grassy lot
        on Glenwood Avenue when Wesley crashed the car into the front
        steps of 1720 North Hollywood Street. Lindsey heard Appellant
        say, “It ain’t over, your brother is next.” Lindsey got their child
        out of the back seat of the car and ran into her grandmother’s
        house with the child. Wesley was also able to make it into the
        grandmother’s house, but he promptly collapsed on the floor
        inside.

        Precia, who witnessed the entire incident, called 911. Police
        Officer Edward Fidler (“Officer Fidler”) arrived on the scene
        approximately two (2) minutes later. Wesley was still alive when
        Officer Fidler placed him in the back of his police car and
        transported him to Temple University Hospital. Wesley was
        pronounced dead on October 1, 2012 at 4:23 p.m. An autopsy
        was performed by Deputy Medical Examiner Dr. Ennis.[2] Upon
        reviewing the case file and photos of [the] autopsy, Deputy Chief
        Medical Examiner Dr. Albert Chu testified because Dr. Ennis was
        no longer with the Philadelphia Medical Examiner’s Office. Dr. Chu
        determined the cause of death was a gunshot wound to the left
        arm and thorax. The manner of death was found to be homicide.
        Wesley was shot two (2) times. One (1) bullet went through the
        left arm, exited, and entered his chest where the bullet passed
        through Wesley’s left and right lungs, aorta and esophagus. The
        other bullet entered the right arm. Two (2) bullets were recovered
        from Wesley’s body. The injuries were consistent with Wesley
        sitting in [the] front seat and turning to look over his shoulder to
        reverse the direction of the car while a person standing in front of
        the car shot at him.



____________________________________________


2   Dr. Ennis’s first name is not contained in the record.

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     That same day, Lindsey, Shakur, and Precia were transported to
     the Homicide Unit and gave nearly identical statements. Lindsey’s
     interview with Detective Jeffrey Burke (“Detective Burke”) started
     at 6:15 p.m. in a private office at the Homicide Unit. She
     recounted the shooting to Detective Burke and described
     Appellant as wearing dark cargo pants, a plaid shirt and a hat.
     While in the interview, Lindsey made two (2) five-minute phone
     calls. One (1) to her mother, JanLaRoyal Lindsey (“JanLaRoyal”),
     who was with Wesley’s mother, Rita Wesley (“Rita W.”) and the
     other to Wesley’s brother, Brandon Wesley (“Brandon”) who was
     with his cousins. None of these individuals saw the shooting, and
     Lindsey provided a description of the shooter on both calls.
     JanLaRoyal and Rita W. relayed that members of the community
     saw two (2) males parked in a car around the corner from the
     scene and observed the shooter get out of the car. Brandon
     explained that there was ongoing tension between individuals
     from North 33rd and Cumberland Streets where the Wesleys lived,
     and individuals from York Street after someone from Cumberland
     Street killed a person from York Street. Brandon further added
     that he was shot in June or July by someone named “Haas.”
     Brandon suggested Haas shot Wesley and Marlon Williams was
     probably the driver. Lindsey then gave the aforementioned
     information she gleaned from both calls to Detective Burke and
     incorporated it into her statement. Detective Burke searched
     images of individuals named “Marlon” with ties to the 22nd
     District[fn5], printed six (6) individual photographs of these
     individuals, and showed them to Lindsey. There were no names
     associated with the photos Lindsey viewed, and there was no
     name on Appellant’s photo. Lindsey identified Appellant as the
     shooter from the photographs at 6:46 p.m. Detective Burke did
     not assert that the person in the picture was the shooter upon
     displaying it to Lindsey.

           33rd and Cumberland Streets, as well as York Street are
       [fn5]

       included in the 22nd District.

     Shakur saw Precia and Lindsey at the Homicide Unit, but they did
     not talk. Shakur’s interview started at 6:20 p.m. and was
     conducted by Detective Spotwood. . . . In her statement, Shakur
     described Appellant as wearing dark green cargo pants and a plaid
     shirt. Detective Spotwood included Appellant’s photo in the photo
     array shown to Shakur and she identified Appellant as the shooter
     at 7:06 p.m.


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      Precia also was about fifteen (15) feet away from Appellant when
      she first saw him. Her interview was conducted by Detectives
      Joyce . . . and Aitken . . . and started at 7:00 p.m. She described
      Appellant’s clothing and hat. Precia circled Appellant’s photo out
      of a photo array at 7:06 p.m.

      Two pieces of ballistics evidence were recovered from the
      decedent’s vehicle, a bullet and a bullet jacket. Five (5) fired
      cartridge casings were recovered from the scene. The ballistics
      evidence recovered from the vehicle and scene was compared
      with the ballistics evidence from Wesley’s body and Police Officer
      Norman DeFields . . . of the Firearms Identification Unit
      determined that all ballistics evidence was fired from the same
      gun. The Commonwealth presented a certificate of non-licensure
      stating that . . . Appellant had no license to carry a firearm. The
      Commonwealth also presented evidence that . . . Appellant had a
      prior conviction on delinquency possession of a firearm by a
      minor.

Trial Ct. Op., 7/15/16, at 3-7 (record citations omitted).

      Police arrested Appellant on October 4, 2012. On March 11, 2013, the

Commonwealth filed a criminal information, charging Appellant with offenses

related to the shooting. On July 29, 2015, Appellant filed a motion to suppress

testimony regarding the witnesses’ identifications of Appellant as the shooter.

Appellant argued that the police presented the photographs to the witnesses

in an unduly suggestive manner and the witnesses lacked independent bases

for their identifications. Following a hearing, the court denied relief and the

matter proceeded to trial.

      On August 17, 2015, a jury convicted Appellant of first-degree murder,

carrying a firearm without a license, and PIC. That same day, the trial court

conducted a separate waiver trial and convicted Appellant of persons not to

possess firearms. Immediately following the waiver trial, the court sentenced



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Appellant to a mandatory term of life imprisonment without parole for the

murder conviction with no further penalty for the remaining offenses.

       Appellant    timely    filed   a   post-sentence   motion,   challenging   the

imposition of the mandatory sentence of life imprisonment.                The post-

sentence motion was denied by operation of law on December 22, 2015.

       Appellant timely filed a notice of appeal on January 20, 2016.             On

December 6, 2016, this Court dismissed the appeal due to counsel’s failure to

file a brief.    Appellant timely filed a counseled petition under the Post

Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, on February 17, 2017.

       On July 13, 2017, the PCRA court granted relief, reinstating Appellant’s

direct appeal rights nunc pro tunc. The court did not conduct a hearing on the

matter, and the record indicates Appellant remained incarcerated on the date

relief was granted. No further action occurred until October 3, 2017, when

the PCRA court appointed current counsel to represent Appellant. On October

16, 2017, current counsel filed a notice of appeal nunc pro tunc on Appellant’s

behalf.3
____________________________________________


3 “Generally, an appellate court cannot extend the time for filing an appeal.”
Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007).
“Nonetheless, this general rule does not affect the power of the courts to grant
relief in the case of fraud or breakdown in the processes of the court.” Id.
Here, the PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc
on July 13, 2017, and Appellant had until August 12, 2017 to file his notice of
appeal. Although the certified docket entries confirm the issuance of the order
granting PCRA relief, the docket entries do not indicate that the court informed
Appellant about the disposition of his petition. See Pa.R.Crim.P. 907 cmt.
(stating, “When the disposition granting a petition reinstates a defendant’s



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       Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement on

November 13, 2017.          The trial court filed a responsive Pa.R.A.P. 1925(a)

opinion, concluding Appellant was not entitled to relief.

       Appellant raises two issues for our review:

       [1].   The trial court erred when it denied Appellant’s motion to
              suppress because the identification procedures employed by
              the Philadelphia Police Department in this case were “unduly
              suggestive.”

       [2].   Appellant’s Confrontation Clause rights were violated where
              the court allowed Dr. Albert Chu, whom did not perform the
              autopsy, to testify as to the cause of death and manner of
              death.

Appellant’s Brief at 4.

       In his first issue, Appellant contends that the Commonwealth failed to

establish an independent basis for Lindsey’s out-of-court identification. Id. at

13. By way of background, we reiterate that before the shooting, the decedent

was driving Lindsey and their child. After the car stopped and Lindsey was

about to exit, she saw an unfamiliar man with a firearm approach. The man

yelled out, moved to within fifteen feet of the front of the car, and then opened

fire. The decedent attempted to escape by putting the car into reverse, but



____________________________________________


direct appeal rights nunc pro tunc, the judge must advise the defendant by
certified mail, return receipt requested that a new notice of appeal must be
filed within 30 days of the order”). Moreover, the record does not indicate
whether the court also removed prior counsel on July 13, 2017, as he
subsequently took no further action on Appellant’s behalf. Under these
circumstances, we conclude a breakdown in the operations of the court
excuses the apparent untimeliness of the instant appeal.

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the car crashed into the front steps of a nearby residence. After the crash,

Lindsey watched the shooter flee.

      Approximately two-and-a-half hours after the shooting, Detective Burke

interviewed Lindsey, and Lindsey described the shooter as “tall, dark-skinned

and . . . wearing a cap.” N.T., 8/10/15, at 18. During the interview, Lindsey

made several phone calls during which she received information that “Marlon”

was involved. Id. at 23. Based on this information, Detective Burke searched

for photos of individuals named “Marlon” to show to Lindsey:

      [Detective Burke]: I wanted to see if [Lindsey] recognized Marlon
      once. If she identified him as, yeah, that’s the guy from that area
      that they have been beefing with, I’ve seen him before, I could
      then try to ascertain who is Haas from him.

      [Prosecutor]: Were you going to, like, scoop him up?

      [Detective Burke]: No. I was going to see if he’s ever been
      arrested with any males nicknamed Haas or if he’s ever been
      stopped in a car, who the people are he’s stopped with, then I
      could check if they ever used the nickname Haas or, you know,
      start from there, just a starting route.

Id. at 26. Detective Burke printed out six photos of potential suspects and

showed them to Lindsey, who viewed Appellant’s photo and identified him as

the shooter. Id. at 119. Detective Burke did not make any statements to

Lindsey indicating that the man in the photo might be the shooter. Detective

Burke asked Lindsey some follow-up questions to confirm that she recognized

the man in the photo as the shooter, and Lindsey reiterated her identification.

      Appellant argues on appeal that the record contradicted Lindsey’s

testimony that she never took her eyes off the shooter. Appellant’s Brief at


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12. Appellant emphasizes that Lindsey provided a “basic” description of the

shooter, but the other eyewitnesses included more specific details about the

shooter’s appearance, clothing, and firearm. Id. at 13. Appellant also claims

Lindsey could not have faced the shooter as he approached, because she was

in the process of exiting the car. Id. at 12. Appellant insists Detective Burke

employed a suggestive identification procedure by showing Lindsey a single

photograph of Appellant approximately three hours after the shooting. Id.

Appellant suggests that the trial court should have granted his motion to

suppress because the Commonwealth failed to establish an independent basis

for Lindsey’s out-of-court identification. Id. at 13.

      We apply the following standard when reviewing the denial of a

suppression motion:

         [An appellate court’s] standard of review in addressing a
         challenge to the denial of a suppression motion is 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 law of the courts below
         are subject to [ ] plenary review.


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Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation

omitted).4

       “In reviewing the propriety of identification evidence, the central inquiry

is whether, under the totality of the circumstances, the identification was

reliable.” Commonwealth v. Milburn, 191 A.3d 891, 899 (Pa. Super. 2018)

(citation omitted). “A photographic identification is unduly suggestive when

the   procedure      creates    a   substantial   likelihood   of   misidentification.”

Commonwealth v. Crork, 966 A.2d 585, 589 (Pa. Super. 2009) (citation

and quotation marks omitted).            “To establish reliability in the wake of a

suggestive identification, the Commonwealth must prove, through clear and

convincing evidence, the existence of an independent basis for the

identification.”   Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super.

2011).

       In deciding whether to admit contested identification evidence,
       the trial court must consider: (1) the opportunity of the witness
       to view the perpetrator at the time of the crime; (2) the witness’
       degree of attention; (3) the accuracy of his prior description of the
____________________________________________


4  We acknowledge the holding in In re L.J., 79 A.3d 1073 (Pa. 2013), that
after October 30, 2013, the scope of review for a suppression issue is limited
to the record available to the suppression court. Id. at 1085, 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”). Because the instant criminal information was filed on
March 11, 2013, prior to October 30, 2013, In re L.J. does not apply.
Nonetheless, although L.J. instructs the courts that for criminal cases
commenced before October 30, 2013, it may be “appropriate to consider all
of the testimony, not just the testimony presented at the suppression hearing,
in determining whether evidence was properly admitted,” Commonwealth v.
Chacko, 459 A.2d 311, 317 n.5 (Pa. 1983), we limit our consideration to the
suppression record.

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      perpetrator at the confrontation; (4) the level of certainty
      demonstrated at the confrontation; and (5) the time between the
      crime and confrontation. Suggestiveness in the identification
      process is but one factor to be considered in determining the
      admissibility of such evidence and will not warrant exclusion
      absent other factors.

Milburn, 191 A.3d at 899-900 (citations and quotation marks omitted).

      Instantly, the trial court evaluated the totality of these circumstances

as follows:

      [Detective Burke] testified that he used the information from
      [Lindsey’s] phone calls . . . to search photos. Detective Burke
      specifically outlined his thought process, stating that . . . upon
      presenting the photos to Lindsey, Detective Burke was hoping that
      a potential identification of Marlon would lead police to the person
      suspected as the shooter at that time, Haas. Six (6) individual
      photographs of individuals named “Marlon” with ties to the 22nd
      District were printed without identifying information and provided
      to Lindsey. Lindsey identified Appellant as the shooter from the
      photographs.

      Though Lindsey received information from [her mother and the
      decedent’s mother and brother], Lindsey still had to rely on her
      own, close-range observation of the Appellant to make a positive
      identification . . .

                                   *     *      *

      At no time did Lindsey waver in her identification, and the time
      between the crime and Lindsey’s confrontation was a mere four
      (4) hours. Lindsey provided the description of Appellant in the
      phone conversations; [Lindsey’s mother and the decedent’s
      mother and brother] merely provided the context from members
      of the community and [the decedent’s brother’s] personal
      knowledge.

Trial Ct. Op. at 10-11.

      Therefore, the trial court noted that the factors supporting the reliability

of Lindsey’s identification included her opportunity to view the perpetrator,


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the level of certainty demonstrated at the confrontation, and the time between

the crime and confrontation. See Milburn, 191 A.3d at 899. We agree with

the trial court that Lindsey’s out-of-court identification of Appellant was

sufficiently reliable and supported by the record. See Smith, 164 A.3d at

1257. Accordingly, we conclude that the trial court properly denied Appellant’s

motion to suppress.

      In his second issue, Appellant contends that the Commonwealth violated

his right to confront witnesses when it called Dr. Chu to testify about the

autopsy report authored by Dr. Ennis.         Appellant’s Brief at 15.   Appellant

acknowledges Dr. Chu’s testimony that he did not know Dr. Ennis’s

whereabouts at the time of trial, but argues that such testimony failed to

satisfy the Commonwealth’s burden to show that Dr. Ennis was “unavailable”

under the Confrontation Clause. Id. at 15-16. Appellant further claims that

Dr. Chu did not base his conclusions on an independent review of Dr. Ennis’s

report. Id. at 16. Appellant concludes he is entitled to a new trial on this

basis. Id. at 17.

      To preserve a claim of error in conjunction with a court’s evidentiary

ruling, a party must make a timely and specific objection in the trial court.

See Pa.R.E. 103(a)(1)(A), (B). “The law is clear that issues, even those of

constitutional dimension, are waived if not raised in the trial court. A new and

different theory of relief may not be successfully advanced for the first time

on appeal.” Commonwealth v. Cline, 177 A.3d 922, 927 (Pa. Super. 2017),




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appeal denied, 187 A.3d 922 (Pa. 2018) (citation and quotation marks

omitted).

      Here, Appellant failed to raise any objection to Dr. Chu’s testimony in

the trial court.   Further, Appellant failed to include this claim in his post-

sentence motion. See Pa.R.Crim.P. 720(B)(1)(a) (reiterating that all requests

for relief from the trial court should be stated with particularity in the post-

sentence motion).     Therefore, Appellant’s claim is waived.     See Pa.R.A.P.

302(a) (stating that issues that are not raised in the trial court are waived and

cannot be raised for the first time on appeal); Pa.R.E. 103(a).

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/19/19




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