J-S88012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

THOMAS BEECH,

                        Appellant                    No. 628 EDA 2016


        Appeal from the Judgment of Sentence of January 22, 2016
              In the Court of Common Pleas of Bucks County
           Criminal Division at No(s): CP-09-CR-0000676-2015,
          CP-09-CR-0003138-2015 and CP-09-CR-0006115-2014

BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                        FILED FEBRUARY 13, 2017

      Appellant, Thomas Beech, appeals from the judgment of sentence

entered on January 22, 2016. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      On July 2, 2014, Constance Rondeau [(“Rondeau”)]. . . arrived
      home [in Montgomery County] to find a blue Ford Focus parked
      in her driveway. She waited in her car for her daughter to arrive,
      as she did not know whose car was in her driveway or if
      someone was in her home. Thereupon, Rondeau witnessed a
      “slim natured man with dark hair and his arm wrapped up” exit
      her home and enter the car and drive off. When Rondeau’s
      daughter arrived, the two of them walked to the back of the
      house and “saw the disaster.” Rondeau noticed that a bench
      from her deck was moved towards her back window, and that
      her back window was broken.           Upon entering her house,
      Rondeau observed “blood all over” the bathroom that was
      connected to the broken rear window, and “blood all throughout
      the different portions of the house, even the upstairs.” The DNA



* Retired Senior Judge assigned to the Superior Court
J-S88012-16


     extracted from the blood in Rondeau’s house matched
     Appellant’s DNA.      Further, the Commonwealth’s expert on
     cellular technology and forensics, using Appellant’s cell phone
     records, offered evidence showing that Appellant’s cell phone
     was “in the vicinity of the victim’s residence” surrounding the
     time of the burglary.

     On July 26, 2014, Marybell Melendez [(“Melendez”)], a resident
     of [Bucks County] encountered Appellant “trying to get into her
     back door.” While in her home cleaning her bathroom, Melendez
     heard a knock at her back door, and went and looked out her
     window and saw Appellant looking around. After losing sight of
     Appellant and returning to continue to clean her bathroom,
     Melendez heard scratching, and then stopped what she was
     doing and approached her back door where she witnessed
     Appellant trying to break the screen on her back outer door.
     Melendez then approached Appellant at the back door and
     engaged in a face to face confrontation with him. When she
     noticed he was wearing gloves, she indicated that she was going
     to call the police, at which point Appellant left. . . .

     On August 12, 2014, Amanda Paley [(“Paley”)], a resident of
     [Bucks County], came home with her 10-month[-]old son, and
     upon entering her home saw that a window and her bathroom
     cabinets were left open. She initially thought her husband was
     responsible for opening them before he left the house. She
     proceeded to take a shower, and upon finishing, entered her
     bedroom and noticed that her [closet] door was open, and some
     of her belongings, including an empty jewelry box, were strewn
     across the floor. Upon noticing this scene, Paley grabbed her
     son, exited the house, got in her car, and called 911. Shortly
     after Paley called 911, a park ranger from the adjacent
     Bensalem Community Park, Kenneth Buckalew [(“Buckalew”)],
     arrived and told Paley he would take a walk around the house to
     check things out. While walking around the house, Buckalew
     saw Appellant climb out of Paley’s window holding a bag. After
     Buckalew arrived and proceeded to walk around the house, Paley
     witnessed Appellant come around the side of her house, carrying
     “the type of bag they normally give a patient in the hospital.”
     Paley got out of her car and started yelling at Appellant, at which
     point he started running towards the nearby park. Moments
     later, Paley observed Appellant “pull out of the driveway of the
     park in a car,” which was a blue Ford Focus. Prior to Buckalew
     being aware of the incident at Paley’s residence, he took a


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        photograph of a blue Ford Focus parked in the Bensalem
        Community Park parking lot because he found it suspicious, and
        at trial Paley identified the car in the photograph as the car in
        which she saw Appellant drive away. Paley also subsequently
        identified Appellant’s vehicle that was impounded by police as
        the vehicle in which Appellant fled.           Once again, the
        Commonwealth’s expert on cellular technology and forensics,
        based on Appellant’s cell phone records, proffered evidence
        indicating that Appellant’s cell phone was used in close proximity
        to [Paley’s] residence . . . during the time surrounding the
        burglary of said residence.

Trial   Court   Opinion,   5/20/16,   at   4-6   (honorifics,   headings,   internal

alterations, ellipses, footnote and internal citations omitted).

        On August 28, 2014, Officer Steven Bailey stopped Appellant as he

drove behind a Target store in an area that was posted no trespassing.

After a brief investigation, Officer Bailey arrested Appellant for the burglary

of Paley’s residence.        Subsequently, Melendez, Paley, and Buckalew

identified Appellant via photo arrays.      Appellant was not provided counsel

during these photo arrays.

        The procedural history of this case is as follows. The Commonwealth

charged Appellant, via three separate criminal informations, with two counts

of burglary,1 two counts of trespass,2 attempted burglary,3 attempted

trespass,4 criminal mischief,5 theft by unlawful taking,6 attempted theft by


1
    18 Pa.C.S.A. § 3502(a)(1).
2
    18 Pa.C.S.A. § 3503(a)(1)(ii).
3
    18 Pa.C.S.A. §§ 901, 3502.
4
    18 Pa.C.S.A. §§ 901, 3503.


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unlawful taking,7 receiving stolen property,8 and attempted receiving stolen

property.9

        On March 30, 2015, Appellant filed a suppression motion. On July 22,

2015, the Commonwealth filed a motion to consolidate the three criminal

informations for a single trial.     Prior to trial, the trial court conducted a

combined pre-trial motions hearing.        During the hearing, the trial court

granted the Commonwealth’s consolidation motion and granted in part and

denied in part Appellant’s suppression motion.

        On October 9, 2015, Appellant was convicted of all 11 charges. On

January 22, 2016, the trial court sentenced him to an aggregate term of 8 to

20 years’ imprisonment. This timely appeal followed.10

        Appellant presents two issues for our review:

        1. Did the trial court err in consolidating for trial two burglaries
           and one attempted burglary where the incidents were



5
    18 Pa.C.S.A. § 3304(a)(5).
6
    18 Pa.C.S.A. § 3921(a).
7
    18 Pa.C.S.A. §§ 901, 3921.
8
    18 Pa.C.S.A. § 3925(a).
9
    18 Pa.C.S.A. §§ 901, 3925.
10
   On February 24, 2016, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On April 13, 2016, Appellant filed his concise statement.
On May 20, 2016, the trial court issued its Rule 1925(a) opinion. Both
issues raised on appeal were included in Appellant’s concise statement.


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         factually distinct, occurred in different jurisdictions[,] and
         occurred over a six-week period?

      2. Did the trial court err in failing to grant Appellant’s motion to
         suppress evidence obtained following: (1) a stop of
         Appellant’s car that was not supported by reasonable
         suspicion; (2) an arrest of Appellant that was not supported
         by probable cause; and (3) the denial of counsel to Appellant
         at a post-arrest photo display?

Appellant’s Brief at 5 (complete capitalization omitted).

      In his first issue, Appellant argues that the trial court erred by

consolidating the three criminal informations for trial.11   “[T]he decision of

whether to join or sever offenses for trial is within the discretion of the trial

court, and such decision will not be reversed on appeal absent a manifest

abuse of that discretion or a showing of prejudice and clear injustice to the

defendant.”   Commonwealth v. Stiles, 143 A.3d 968, 975 (Pa. Super.

2016) (citation omitted).

      Joinder of criminal informations for trial is governed by Pennsylvania

Rule of Criminal Procedure 582, which provides, in relevant part:

      Offenses charged in separate indictments or informations may
      be tried together if:

      (a) the evidence of each of the offenses would be admissible in a
      separate trial for the other and is capable of separation by the
      jury so that there is no danger of confusion; or

      (b) the offenses charged are based on the same act or
      transaction.


11
   The Commonwealth contends that this issue is waived; however, our
review of the certified record indicates that Appellant properly preserved this
issue.


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Pa.R.Crim.P. 582(A)(1). In this case, it is undisputed that the crimes were

not based upon the same act or transaction.        Thus, the three criminal

informations could only be joined for trial if the requirements of Rule

582(A)(1)(a) were satisfied.

     We agree with the trial court that the evidence of the other offenses

would have been admissible in separate trials under Pennsylvania Rule of

Evidence 404(b), which provides that prior bad acts evidence, while not

admissible to show mere propensity, “may be admissible for another

purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident. In a criminal

case this evidence is admissible only if the probative value of the evidence

outweighs its potential for unfair prejudice.” Pa.R.Evid. 404(b)(2). Although

not included within the enumerated list of permissible uses in Rule

404(b)(2), prior bad acts evidence may be admitted to assist in “proving the

existence of a common scheme[.]” Commonwealth v. Arrington, 86 A.3d

831, 842 (Pa. 2014).

     In this case, the trial court explained that Appellant’s common scheme

included burglarizing homes in suburban Philadelphia, during the middle of

the day, and entering (or attempting to enter) at or near the rear of the

residences. See Trial Court Opinion, 5/20/16, at 11, quoting N.T., 10/5/15,

at 21.   We agree that the evidence cited by the trial court proved the

existence of a common scheme.



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     We find instructive this Court’s decisions in Commonwealth v.

Armstrong, 74 A.3d 228 (Pa. Super. 2013), aff’d, 107 A.3d 735 (Pa. 2014)

and Commonwealth v. Janda, 14 A.3d 147 (Pa. Super. 2011).                 In

Armstrong, the defendant attempted to burglarize two residences two

months apart.     The two attempted burglaries were charged in separate

criminal informations and the trial court granted the Commonwealth’s

motion to consolidate the criminal informations for trial.   On appeal, this

Court affirmed, explaining that “the attempted burglaries . . . took place in

close temporal and geographic proximity, [were] committed against women

who were alone in their homes late at night, by attempting to pry open a

window using a crowbar or metal tool.” Armstrong, 74 A.3d at 234. Thus,

this Court concluded that the attempted burglaries would be admissible in

the other trials under Rule 404(b) because they demonstrated a common

scheme. See id.

     In Janda, the defendant was charged with nine burglaries via two

separate criminal informations. The trial court granted the Commonwealth’s

motion to join the two criminal informations for trial. On appeal, this Court

found that evidence of the burglaries would have been admissible at

separate trials under Rule 404(b) in order to prove a common scheme. See

Janda, 14 A.3d at 156. This Court reasoned that the “thefts took place over

a span of several months. . . . Furthermore, the burglarized homes were

located within approximately a five mile to six mile radius of one another.



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Each of the residences was situated such that it was largely obscured from

view from the vantage point of the road.” Id. (internal citation omitted).

      In the case sub judice, the similarities of the offenses were akin to the

similarities in Armstrong and Janda. The timeframe for the two burglaries

and one attempted burglary in this case was shorter than the timeframe for

the burglaries in Armstrong and Janda. Moreover, although they occurred

in separate jurisdictions, the three residences were all in close geographic

proximity. All of the burglaries were committed while women were present,

in the daytime, and entry was made at or near the rear of the residence.

Thus, we conclude that the trial court did not abuse its discretion in finding

that the first prong of Rule 404(b)(2) was satisfied.

      As to the second prong of Rule 404(b)(2), we conclude that the trial

court did not abuse its discretion in finding that the probative value of the

other crimes would outweigh any potential for unfair prejudice.      Appellant

argues that prejudice would have occurred in the two cases where no DNA

was found at the crime scene. According to Appellant, the DNA evidence at

one scene bolstered the credibility of the eyewitnesses who testified that he

committed the other burglary and attempted burglary.        Appellant ignores,

however, that an expert would have testified in the Paley burglary trial that

Appellant’s cellular telephone records placed him at or near the crime scene

at the time of the burglary. Moreover, the eyewitness identifications in this

case were not equivocal. Instead, they were made without hesitation. We



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ascertain a high probative value and very little risk of unfair prejudice if the

other burglaries were admitted. Thus, the second prong of Rule 404(b)(2)

was satisfied. As such, the burglaries and attempted burglary would have

been admissible at separate trials.

      The second prong of Rule 582(A)(1)(a) was also satisfied.        The jury

could easily separate the burglaries and attempted burglary. Each burglary

and attempted burglary occurred on a different day, at a different residence,

and involved different victims and witnesses. There was no danger that the

jury would be confused by the joinder of the offenses into a single trial.

Thus, we conclude that the trial court did not abuse its discretion in

consolidating the three criminal informations for trial.

      In his second issue, Appellant argues that the trial court erred in

denying his suppression motion.       “Once a motion to suppress evidence has

been filed, it is the Commonwealth’s burden to prove, by a preponderance of

the evidence, that the challenged evidence was not obtained in violation of

the defendant’s rights.” Commonwealth v. Evans, 2016 WL 7369120, *3

(Pa. Super. Dec. 20, 2016) (citation omitted).      “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.” Commonwealth v.

Simonson, 148 A.3d 792, 796 (Pa. Super. 2016) (citation omitted). “[O]ur

scope of review is limited to the factual findings and legal conclusions of the



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[trial] court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted).

“Because the Commonwealth prevailed before the [trial] 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.” Commonwealth v. Valdivia, 145 A.3d

1156, 1159 (Pa. Super. 2016) (citation omitted). “Where the [trial] court’s

factual findings are supported by the record, we are bound by these findings

and may reverse only if the [trial] court’s legal conclusions are erroneous.”

Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016) (citation

omitted).

      Appellant presents three discrete suppression challenges. In his first

suppression   challenge,   Appellant    argues   that   Officer   Bailey   lacked

reasonable suspicion to stop him.       In his second suppression challenge,

Appellant argues that Officer Bailey lacked probable cause to arrest him. In

his final suppression challenge, Appellant argues that the trial court should

have suppressed Melendez’s, Paley’s, and Buckalew’s identifications of him

as the perpetrator of the offenses.

      “The Fourth Amendment to the United States Constitution and Article

I, Section 8 of the Pennsylvania Constitution protect individuals from

unreasonable searches and seizures[.]” Commonwealth v. Korn, 139 A.3d

249, 258 (Pa. Super. 2016), appeal denied, 2016 WL 6107660 (Pa. Oct. 18,

2016) (citation omitted). “To safeguard these rights, courts require police to



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articulate the basis for their interaction with citizens in three increasingly

intrusive situations.” Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa.

Super. 2013) (internal alteration, quotation marks, and citation omitted).

      This Court has described the three types of police/citizen interactions,

and the necessary justification for each, as follows:

      The first of these is a “mere encounter” (or request for
      information) which need not be supported by any level of
      suspicion, but carries no official compulsion to stop or to
      respond. The second, an “investigative detention[,]” must be
      supported by a reasonable suspicion; it subjects a suspect to a
      stop and a period of detention, but does not involve such
      coercive conditions as to constitute the functional equivalent of
      an arrest. Finally, an arrest or “custodial detention” must be
      supported by probable cause.

Commonwealth v. Stilo, 138 A.3d 33, 36 (Pa. Super. 2016) (citation

omitted).

      It is undisputed that Officer Bailey needed reasonable suspicion to stop

Appellant. See Commonwealth v. Salter, 121 A.3d 987, 992 (Pa. Super.

2015) (citation omitted) (reasonable suspicion necessary to investigate

possible criminal activity). As this Court has explained:

      To establish grounds for reasonable suspicion, the officer must
      articulate specific observations which, in conjunction with
      reasonable inferences derived from those observations, led him
      reasonably to conclude, in light of his experience, that criminal
      activity was afoot and that the person he stopped was involved
      in that activity. The question of whether reasonable suspicion
      existed at the time the officer conducted the stop must be
      answered by examining the totality of the circumstances to
      determine whether the officer who initiated the stop had a
      particularized and objective basis for suspecting the individual
      stopped. Therefore, the fundamental inquiry of a reviewing
      court must be an objective one, namely, whether the facts


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      available to the officer at the moment of the stop warrant a
      person of reasonable caution in the belief that the action taken
      was appropriate.

Commonwealth v. Postie, 110 A.3d 1034, 1039–1040 (Pa. Super. 2015)

(internal alterations and citation omitted).

      In this case, Officer Bailey witnessed Appellant drive into an area

marked “no trespassing” behind a closed Target store.       N.T., 10/5/15, at

119. This gave Officer Bailey reasonable suspicion to stop Appellant in order

to investigate whether he was casing the store,12 i.e., determining whether

he could successfully burglarize the store, or committing a defiant

trespass.13 See id. at 122. Accordingly, Officer Bailey’s stop of Appellant

was supported by reasonable suspicion.14

      Next, Appellant argues that Officer Bailey lacked probable cause to

arrest him after the traffic stop. “The police have probable cause where the

facts and circumstances within the officer’s knowledge are sufficient to

12
   Appellant’s citation to Commonwealth v. Williams, 429 A.2d 698 (Pa.
Super. 1981) is unpersuasive. In that case, the defendants were in an
“abandoned, private parking lot of a swimming pool which was being
salvaged.” Id. at 699. In this case, Appellant was in the parking lot of a
closed store.
13
    See 18 Pa.C.S.A. § 3503(b)(1)(ii) (“A person commits an offense if,
knowing that he is not licensed or privileged to do so, he enters or remains
in any place as to which notice against trespass is given by . . . posting in a
manner prescribed by law or reasonably likely to come to the attention of
intruders[.]”).
14
   Moreover, for essentially the same reasons that we conclude infra that
Officer Bailey had probable cause to arrest Appellant, we also conclude that
Officer Bailey had reasonable suspicion to stop Appellant to investigate his
involvement in the burglary of Paley’s residence.


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warrant a person of reasonable caution in the belief that an offense has been

or is being committed.”    Commonwealth v. Hernandez, 935 A.2d 1275,

1284 (Pa. 2007) (citation omitted). “In determining whether probable cause

exists, we [look at the] totality of the circumstances.” Commonwealth v.

Fleet, 114 A.3d 840, 854 (Pa. Super. 2015) (citation omitted).

       At the time Officer Bailey arrested Appellant, he knew the following

information: (1) Appellant previously was convicted of burglary, N.T.,

10/5/15, at 128; (2) Appellant matched the general description of the

individual who burglarized Paley’s residence, id. at 123;15 (3) Appellant was

driving a vehicle which matched the color, make, and model of the vehicle

driven by the individual who burglarized Paley’s residence, id. at 109; (4)

Appellant’s vehicle had a blue emblem on the right side of the trunk which

matched the photograph of the suspect’s vehicle taken by Buckalew, id. at

105; (5) Appellant’s license plate holder was made of chain link which

matched the photograph of the suspect’s vehicle taken by Buckalew, id.;

and (6) Appellant was one and one-half miles from Paley’s residence. Id. at

114.    As Appellant notes, however, other circumstances indicated that

Appellant was not the individual who burglarized Paley’s residence.         For

example, he had short hair at the time of his arrest while the individual who




15
   Appellant argues that the trial court found this testimony not credible.
See Appellant’s Brief at 21. His citation, however, is to the assistant district
attorney’s argument on the suppression motion.


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burglarized Paley’s residence had long hair. Furthermore, his license plate

number did not match the license plate number in the photograph.

      We agree with the trial court that the totality of the circumstances

established probable cause that Appellant was the suspect who burglarized

Paley’s residence.    Although Appellant’s hair was short at the time of the

arrest, it only takes minutes for an individual to cut his hair in order to

change his appearance. As to the license plate number, Officer Bailey knew

that the license plate number from the photograph was recovered using

photo enhancement techniques and, therefore, an error was possible. N.T.,

10/5/15, at 129. Detective Michael Moretti, the individual investigating the

burglary of Paley’s residence, and Officer Bailey agreed that Appellant’s

vehicle was probably the vehicle photographed by Buckalew.             Id. at 128.

Thus, there were six circumstances that weighed heavily in favor of Officer

Bailey believing that Appellant burglarized Paley’s residence while the

circumstances that weighed against that inference were not weighty.              As

such, we conclude that the trial court properly found that Appellant’s arrest

was supported by probable cause.

      Finally, Appellant argues that the trial court should have suppressed

Melendez’s, Paley’s, and Buckalew’s in-court and out-of-court identifications

of him as the perpetrator of the offenses. “In Pennsylvania, a defendant has

a   constitutional   right   to   have   counsel   present   during   identification

procedures.”    Commonwealth v. Kearney, 92 A.3d 51, 67 (Pa. Super.



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2014), appeal denied, 101 A.3d 102 (Pa. 2014) (citation omitted).            A

defendant, however, does not have a constitutional right to have counsel

present during identification procedures if he is in custody for an offense

different from that for which the photo array is compiled. Commonwealth

v. Harrell, 65 A.3d 420, 438 (Pa. Super. 2013), appeal denied, 101 A.3d

785 (Pa. 2014) (citation omitted); see Commonwealth v. Zabala, 456

A.2d 622, 629 (Pa. Super. 1983).

      In this case, Appellant was in custody for burglarizing Paley’s residence

at the time the photo array was compiled for the attempted burglary of

Melendez’s residence. Thus, Appellant did not have the constitutional right

to have counsel present at the photo array shown to Melendez.

      As to the photo array identifications by Paley and Buckalew, the trial

court granted in part and denied in part Appellant’s suppression motion.

Specifically, the trial court suppressed Paley’s and Buckalew’s out-of-court

identifications at the photo arrays because Appellant was denied counsel at

those photo arrays. The trial court, however, permitted Paley and Buckalew

to identify Appellant in court. After careful consideration, we conclude that

the trial court did not abuse its discretion in permitting Paley and Buckalew

to identify Appellant in court.

      As this Court has explained:

      When an out-of-court identification is alleged to be tainted, an
      in-court identification may still stand if, considering the totality
      of the circumstances, the identification had an origin sufficiently
      distinguishable to be purged of the primary taint. The factors a


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      court should consider in determining whether there was an
      independent basis for the identification include: (1) the
      opportunity of the witness to view the criminal at the time of the
      crime; (2) the witness[’] degree of attention; (3) the accuracy of
      the witness[’] prior description of the criminal; (4) the level of
      certainty demonstrated by the witness during the confrontation;
      and (5) the length of time between the crime and the
      confrontation.

Commonwealth v. Kendricks, 30 A.3d 499, 506 (Pa. Super. 2011), appeal

denied, 46 A.3d 716 (Pa. 2012) (internal quotation marks and citation

omitted); see Commonwealth v. Carver, 436 A.2d 1209, 1211-1212 (Pa.

Super. 1981)

      As to the first factor, both Paley and Buckalew viewed Appellant for a

relatively significant period of time, i.e., more than one minute.16 See N.T.,

10/6/15, at 28, 65.17   Moreover, both Paley and Buckalew were relatively

close to Appellant when they viewed him during daylight without any

obstructions in their lines of sight.   See id. at 30, 59.   As to the second

factor, both Paley and Buckalew knew that they were witnessing a crime

when they viewed Appellant. Thus, their degrees of attention were at their

peak. See id. at 26; see also id. at 57. As to the fourth factor, Paley and

Buckalew expressed a high degree of certainty that Appellant was the same

person they saw fleeing Paley’s residence.     See id. at 33, 66.   Thus, the


16
   Appellant argues that it was only a few seconds; however, the trial court
found Paley’s and Buckalew’s testimony that it was at least one minute
credible. See Trial Court Opinion, 5/20/16, at 20.
17
   There are two volumes of testimony dated October 6, 2015. Our citation
is to the volume in which pre-trial matters were litigated.


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first, second, and fourth factors all weighed heavily in favor of finding that

Paley’s and Buckalew’s in-court identifications were not tainted by their

identifications at the photo arrays.

      As to the fifth factor, there was an approximate 14-month gap

between the burglary of Paley’s residence and when Paley and Buckalew

identified Appellant in court. While this is not a short amount of time, it is

also not a long period of time. Thus, we conclude that the fifth factor was

neutral.

      As to the third factor, both Paley and Buckalew’s physical descriptions

of Appellant after the burglary were generally accurate. Their descriptions,

however, also contained some inaccuracies.          For example, Buckalew

originally told police that the burglar was 6’3” tall and Appellant is

significantly shorter than that height.

      When weighing all of these factors, the trial court determined that

Paley’s and Buckalew’s in-court identifications were not tainted by their

photo array identifications.    We ascertain no abuse of discretion in this

determination.    The minor inconsistencies in conveying descriptions of

Appellant were outweighed by the certainty of their in-court identifications

made after viewing Appellant for a significant period of time, during daylight

hours, and at the scene of a crime. Accordingly, we conclude that the trial

court properly granted in part and denied in part Appellant’s motion to

suppress as it related to the uncounseled photo arrays.



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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/13/2017




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