J-S28040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LAQUAM SMITH,

                            Appellant                No. 3578 EDA 2014


              Appeal from the Judgment of Sentence July 17, 2014
              in the Court of Common Pleas of Philadelphia County
                Criminal Division at No.: CP-51-CR-0005466-2013


BEFORE: BOWES, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                               FILED JUNE 14, 2016

        Appellant, Laquam Smith, appeals from the judgment of sentence

imposed July 17, 2014 following his jury conviction of murder of the first

degree; robbery; burglary; criminal conspiracy to commit murder, robbery,

and burglary; and violations of the Uniform Firearms Act.1 We affirm.

        We take the following facts from the trial court opinion and our review

of the certified record.

              On February 21, 2012, a white Chrysler 300 followed a red
        Mitsubishi Montero owned by the [d]ecedent, Julio Cesar
        Hernandez (Hernandez), southbound into the shared driveway
        behind Hernandez’s home, located at 3900 Palmetto Street . . . .
        Two surveillance cameras affixed to the rear of 3910 Palmetto
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*
    Retired Senior Judge assigned to the Superior Court.
1
 18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 3502(a), 903(c), 6106(a)(1), and
6108, respectively.
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       Street showed the two (2) vehicles enter the driveway, and
       captured the Chrysler parking along the rear of 3910 at 11:19
       A.M. At 11:24 A.M., [] Ladale Pace (Pace) . . . dressed in a dark
       hoodie, dark jeans and black shoes entered the rear of the
       Chrysler on the driver’s side, remained for approximately [thirty]
       seconds, then exited the Chrysler . . . .

             [] Pace used Hernandez’s keys to enter Hernandez’s home,
       where he went upstairs to Hernandez’s bedroom, and searched
       the drawers of Hernandez’s dresser. Juanna Perez (Perez)[,] the
       wife of Hernandez, . . . went to the living room . . . . [where
       she] noticed a male[, Appellant,] standing outside of the door
       with his hands in his pockets. Perez began calling for her
       husband and saw [] Pace on the stairs holding a gun. Pace ran
       out of the house and turned left, and the male who was outside
       ran away to the right.

                                       *       *   *

             Jorge Gonzalez (Gonzalez), who lived on I Street, was
       going to his van in the same shared driveway when he heard
       gunshots. Gonzalez was [ninety] feet[2] away when he saw
       Appellant who was wearing a gray hoodie with the hood partially
       covering his hair approach Hernandez. Hernandez was on the
       ground when Gonzalez witnessed Appellant shoot Hernandez in
       the back of the head.        Appellant then entered the front
       passenger side of the Chrysler and the car drove south. . . .

                                       *       *   *

             At 11:29 A.M., two (2) security cameras affixed to the rear
       of J.J.’s Café, located at 1065 East Erie Avenue, showed the
       Chrysler enter the shared driveway between Elsinore Street and
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2
  In his brief, Appellant alleges that Gonzalez was ninety yards away. (See
Appellant’s Brief, at 20). At the suppression hearing, defense counsel
argued that Gonzalez was thirty-three yards away. (See N.T. Suppression
and Trial, 7/08/14, at 58). During its charge to the jury, the trial court
stated that “Mr. Gonzale[z] was [ninety] yards away.” (N.T. Trial, 7/16/14,
at 44).




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      J Street and pull into a side street out of camera view. Appellant
      and the unidentified driver subsequently walked into camera
      view, and walked toward J Street. . . .

                                 *    *    *

             Detective Gregory Singleton [] obtained a picture of
      Appellant, and prepared a photo array for Gonzalez using a
      computer to generate the other seven (7) images of individuals
      with similar features. In the photograph of Appellant he had
      longer hair than the other males in the photo array. Gonzalez
      identified Appellant out of a photo array by circling Appellant’s
      picture and signing underneath. . . . Appellant was ultimately
      arrested on April 11, 2012. . . .

(Trial Court Opinion, 6/12/15, at 3-6) (quotation marks omitted).

      Appellant and his co-defendant Pace proceeded to a jury trial. During

a suppression hearing prior to trial on July 8, 2014, Appellant moved to

suppress the out-of-court photo array identification by Mr. Gonzalez, as well

as any in-court identification because the circumstances regarding the

display of the photo array was “[s]o unnecessarily suggestive to create

substantial likelihood of misidentification.”   (N.T. Suppression and Trial,

7/08/14, at 32). The court denied the motion to suppress concluding that

“issues raised by [Appellant] go to the weight of the evidence and do not

rise to the level as being unnecessarily suggestive or unduly prejudicial.”

(Id. at 63).

      On July 17, 2014, the jury found Appellant guilty on all counts. On the

same day, the court sentenced Appellant to mandatory life imprisonment for




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the murder, with no further penalty assessed for the other charges. (See

Trial Ct. Op., at 1).       On July 28, 2014, Appellant filed a timely 3 post-

sentence motion, which was deemed denied by operation of law.                  See

Pa.R.Crim.P. 720(B)(3)(a). This timely appeal followed.4

        Appellant raises two questions for our review:

        A. Whether the trial court violated Appellant’s constitutional
        rights by denying Appellant’s motion to suppress the out-of-
        court photo identification and subsequent in-court identification
        by witness Jorge Gonzalez on the grounds that the photo
        identification procedure was so unnecessarily suggestive as to
        create a substantial likelihood of a misidentification and the in-
        court identification was the fruit of the unlawful out-of-court
        identification?

        B.      Whether the Commonwealth attorney engaged in
        prosecutorial misconduct in closing argument by stating his
        opinion that a person seen in an (sic) “blown up” still frame from
        a surveillance camera bore a “striking resemblance” to
        [Appellant] where the Commonwealth’s expert witness had
        testified that due to low resolution of the surveillance camera
        there was (sic) “there is not enough raw image quality” to permit
        a facial identification?

(Appellant’s Brief, at 2) (emphasis omitted).

        In his first issue, Appellant claims that the court erred in denying his

motion to suppress both the out-of-court and in-court identifications by Mr.

Gonzalez. (See id. at 18-22).           Specifically, Appellant argues that the out-
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3
    July 27, 2014, was a Sunday.
4
  Appellant filed his notice of appeal on December 15, 2014. Pursuant to
court order, Appellant filed a concise statement of errors complained of on
appeal on January 12, 2015. See Pa.R.A.P. 1925(b). The trial court filed its
opinion on June 12, 2015. See Pa.R.A.P. 1925(a).



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of-court identification and subsequent in-court identification should have

been suppressed because they were unduly suggestive. (See id. at 21-22).

We disagree.

      Our standard of review for denial of a motion to suppress identification

evidence is well settled.

             Our standard of review of a denial of suppression is
      whether the record supports the trial court’s factual findings and
      whether the legal conclusions drawn therefrom are free from
      error. Our scope of review is limited; we may consider only the
      evidence of the prosecution 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 findings of
      the suppression court, we are bound by those facts and may
      reverse only if the court erred in reaching its legal conclusions
      based upon the facts. This is the standard of review we have
      applied in appeals challenging the denials of motions to suppress
      identification testimony.

Commonwealth v. Moye, 836 A.2d 973, 976 (Pa. Super. 2003), appeal

denied, 851 A.2d 142 (Pa. 2004) (citations and quotation marks omitted).

            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.
      Suggestiveness in the identification process is a factor to be
      considered in determining the admissibility of such evidence, but
      suggestiveness alone does not warrant exclusion. Identification
      evidence will not be suppressed unless the facts demonstrate
      that the identification procedure was so impermissibly suggestive
      as to give rise to a very substantial likelihood of irreparable
      misidentification.

Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011), appeal

denied sub nom. Commonwealth v. Kingwood 34 A.3d 827 (Pa. 2011)

(citations and quotation marks omitted).



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      “A photographic identification is unduly suggestive when the procedure

creates a substantial likelihood of misidentification.”    Commonwealth v.

Fisher, 769 A.2d 1116, 1126 (Pa. 2001) (citation omitted). “Photographs

used 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.” Id. (citation omitted).

      Preliminarily, we note that Appellant has failed to ensure that a copy of

the photo array, which he argues was unduly suggestive, was included in the

certified record. “Appellant has the duty to ensure that all documents

essential to his case are included in the certified record.” Commonwealth

v. Walker, 878 A.2d 887, 888 (Pa. Super. 2005); see Commonwealth v.

Manley, 985 A.2d 256, 263-64 (Pa. Super. 2009), appeal denied, 996 A.2d

491 (Pa. 2010) (“Because we have not been furnished with a copy of the

photo array in question in the record, the issue challenging suppression of

the photo array is deemed waived.”). Therefore, we conclude that Appellant

has waived his challenge to the out-of-court identification based on the

photo array. Moreover, it would not merit relief.

      Here, Appellant’s counsel argued that the photo array identification

should be suppressed because, in his photo, Appellant had an Afro, whereas

the other individuals had close-cut haircuts. (See Appellant’s Brief, at 12-

14) (citing N.T. Suppression and Trial, 7/08/14,, 7/08/14, at 24-29). The

suppression court reviewed the photo array and concluded that the pictures

in the array, which were “generated by a computerized system based upon

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similarity to Appellant[,]” were not unduly suggestive. (Trial Ct. Op., at 8;

see id. at 9).     The court agreed that Appellant “had longer hair than the

other individuals who were featured in the photo array,” but concluded “the

procedure in the instant case did not rise to the level of being unduly

suggestive or create a substantial likelihood of misidentification.” (Trial Ct.

Op., at 9).

       Upon review, we find no error in the trial court’s decision to admit the

out-of-court identification evidence where the witness identified Appellant,

whom he saw shoot Hernandez, from a computer-generated photo array less

than two months after the incident.            See Moye, supra at 976; Fulmore,

supra at 346. We agree that the fact that Appellant had the longest hair of

the selected individuals was not unduly suggestive. See Fisher, supra at

1126. Accordingly, we conclude that the trial court did not err in admitting

the out-of-court identification because the identification procedure was not

so impermissibly suggestive to give rise to a likelihood of misidentification.

See Fulmore, supra at 346.             Therefore, Appellant’s first issue would not

merit relief.5



____________________________________________


5
  Because the out-of-court identification was properly admitted, and because
Appellant simply claimed that the in-court identification should have been
suppressed “[f]or the same reasons[,]” to the extent Appellant challenges
admissibility of the in-court identification, his claim also would not merit
relief. (Appellant’s Brief, at 22).




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

denied his motion for a mistrial because of prosecutorial misconduct during

closing arguments.     (See Appellant’s Brief, at 23-27).      Specifically, he

contends that his motion should have been granted because the prosecutor

impermissibly offered his opinion that Appellant looked like an individual in a

still frame taken from surveillance footage. (See id.). We disagree.

      Preliminarily, we note that although Appellant’s second issue concerns

comments made during closing argument, he has failed to provide a copy of

the transcript of that argument. (See N.T. Trial, 7/15/14, at 59 (“Closing

arguments not transcribed.”)).      Accordingly, Appellant has waived this

argument.     See Walker, supra at 888.        Moreover, even if not waived,

Appellant’s second issue would not merit relief.

      Our standard of review of a trial court’s decision not to grant a mistrial

is well settled.

      In making its determination, the court must discern whether
      misconduct or prejudicial error actually occurred, and if so, . . .
      assess the degree of any resulting prejudice. Our review of the
      resulting order is constrained to determining whether the court
      abused its discretion.     Judicial discretion requires action in
      conformity with [the] law on facts and circumstances before the
      trial court after hearing and consideration. Consequently, the
      court abuses its discretion if, in resolving the issue for decision,
      it misapplies the law or exercises its discretion in a manner
      lacking reason.

Commonwealth v. Culver, 51 A.3d 866, 871 (Pa. Super. 2012) (citation

omitted).

            It is well-established that a prosecutor is free to present
      his argument with logical force and vigor so long as there is a

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     reasonable basis in the record for the prosecutor’s remarks.
     Further, reversible error arises from a prosecutor’s comments
     only where their unavoidable effect is to prejudice the jurors,
     forming in their minds a fixed bias and hostility toward the
     defendant such that they could not weigh the evidence
     objectively and render a fair verdict.

Commonwealth v. Busanet, 54 A.3d 35, 64 (Pa. 2012), cert. denied, 134

S.Ct. 178 (2013) (citations omitted).        Furthermore, “[a] trial court is

required to grant a mistrial only where the alleged prejudicial event[s] may

reasonably be said to have deprived the defendant of a fair and impartial

trial.” Commonwealth v. Brinkley, 480 A.2d 980, 986 (Pa. 1984) (citation

omitted).

     Here, although we cannot review the transcript itself, the trial court

summarized the pertinent part of the prosecutor’s closing argument.

     During the Commonwealth’s closing argument, a still frame from
     a rear J.J.’s Café security camera was shown. The still frame
     came from a compilation of security camera footage,
     Commonwealth exhibit C-307, which was previously admitted
     without objection by Appellant. . . . The Commonwealth opined
     that this figure looked like Appellant.

(Trial Ct. Op., at 10) (record citations omitted). The court then noted that

the “statement was mitigated by [its] repeated instruction to the jury that

the statements of counsel are not evidence, and the fact that the jury had

already seen the image during testimony and thereby had the opportunity to

reach their own conclusions.” (Id.).

     The court then concluded that “[i]n light of [its] instructions to the jury

that the arguments of counsel were not evidence[,] and the opportunity of

the jury to view the image independent of the prosecutor’s comments, the


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comments complained of did not deprive Appellant of a fair trial.” (Id.); see

Commonwealth v. Tedford, 960 A.2d 1, 37 (Pa. 2008) (“the jury is

presumed to follow the court’s instructions.”) (citation omitted).

      Upon review, we conclude that Appellant has not shown that the

prosecutor’s comments prejudiced the jurors such that they could not weigh

the evidence objectively and render a fair verdict. See Busanet, supra at

64. We agree with the trial court that its instruction to the jury cured any

alleged prejudice from the prosecutor’s statement. See Tedford, supra at

37; Brinkley, supra at 986. We therefore conclude that the trial court did

not abuse its discretion when it denied Appellant’s motion for a mistrial.

See Culver, supra at 871; Busanet, supra at 64. Accordingly, Appellant’s

second issue would not merit relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/14/2016




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