J-A20016-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

MARCUS CARY,

                        Appellant                   No. 1956 EDA 2014


           Appeal from the Judgment of Sentence June 6, 2014
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0008046-2013


BEFORE: DONOHUE, SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                     FILED SEPTEMBER 14, 2015

     Appellant, Marcus Cary, appeals from the judgment of sentence

entered following his convictions of recklessly endangering another person

and fleeing or attempting to elude a police officer.     We affirm in part,

reverse in part, vacate the judgment of sentence, and remand for

resentencing.

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

     STATEMENT OF FACTS

           On April 2, 2013, Philadelphia Police Officer Jorge Soto was
     involved in a plain clothes narcotics investigation in the 500
     block of North Groves Street, Philadelphia. N.T. 06/06/14, at 8.
     Officer Soto observed a white female, Judy Veccio, approach and
     enter into the passenger seat of a Silver Dodge Avenger, driven
     by [Appellant]. N.T. 06/06/14, at 8. Officer Soto then observed
     Veccio exchange an unknown amount of United States currency
     for unknown items, which were poured into Veccio’s hands by
     [Appellant]. N.T. 06/06/14, at 9. As Officer Soto relayed flash
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     information regarding the observation to backup officers, Veccio
     exited the vehicle, and [Appellant] took off at a high rate of
     speed, nearly striking Soto’s Sergeant, who had reported to the
     scene and pulled up right next to the driver’s side door of the
     Avenger. N.T. 06/06/14, at 9. Two days later, Officer Soto
     identified [Appellant] as being the person in the vehicle at the
     crime scene after having been shown a single photograph by
     detectives. N.T. 06/06/14, at 17.

     PROCEDURAL HISTORY

           [Appellant] was arrested and charged with Manufacture,
     Delivery, or Possession With Intent to Manufacture [or] Deliver
     (35 P.S. § 780-113 §§ A30), Intentional Possession of a
     Controlled Substance By a Person who is Not Registered (35 P.S.
     § 780-113 §§ A16), Recklessly Endangering Another Person (18
     PA.C.S.A. § 2705), and Fleeing or Attempting to Elude an Officer
     (75 PA.C.S.A. § 3733 §§ A).

           On July 10, 2013, [Appellant] filed a Motion to Suppress
     Identification, which was subsequently denied on October 1,
     2013.

           [Appellant] waived his right to a jury trial, and instead
     elected to have a bench trial. On June 6, 2014, this Court found
     [Appellant] guilty of Recklessly Endangering Another Person and
     of Fleeing or Attempting to Elude an Officer. [Appellant] was
     found not guilty of all other charges. [Appellant] was sentenced
     to two (2) years of probation for Recklessly Endangering Another
     Person, and two (2) years of probation for Fleeing or Attempting
     to Elude an Officer, to be served consecutively. Court costs of
     $427 were imposed upon [Appellant].

Trial Court Opinion, 10/28/14, at 1-2.    This timely appeal followed.   Both

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

     Appellant presents the following issues for our review:

     A. WAS IT ERROR AND AN ABUSE OF DISCRETION FOR THE
     COURT BELOW TO DENY APPELLANT’S MOTIONS FOR A LINE-UP
     AND SUPPRESSION OF IDENTIFICATION IN LIGHT OF THE
     SUGGESTIVE SINGLE PHOTO IDENTIFICATION USED BY THE
     POLICE IN THE CASE AT BAR?

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       B. WAS IT ERROR FOR THE COURT TO FIND APPELLANT GUILTY
       OF VIOLATING 75 Pa.C.S.A. §3733 WHERE THERE WAS
       INSUFFICIENT EVIDENCE OF THE ELEMENTS OF PURSUIT AND
       VISUAL AND AUDIBLE SIGNAL, BOTH OF WHICH ARE
       NECESSARY ELEMENTS OF THE OFFENSE?

Appellant’s Brief at 2.

       Appellant first argues that the trial court erred by improperly admitting

into evidence the in-court identification testimony offered by Officer Soto.1

Specifically, Appellant contends that Officer Soto’s in-court identification of

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1
  We note that Appellant has included in the statement of his issues in his
appellate brief a passing reference that the trial court erred in failing to
grant his request for a line-up. Appellant’s Brief at 2. To the extent
Appellant attempts to argue that the trial court improperly denied his
request for a line-up, we observe that Appellant has failed to properly
develop this issue for appellate review. It is undisputed that the argument
portion of an appellate brief must be developed with pertinent discussion of
the issue, which includes citations to relevant authority. Pa.R.A.P. 2119(a).
See Commonwealth v. Genovese, 675 A.2d 331, 334 (Pa. Super. 1996)
(stating that “[t]he argument portion of an appellate brief must be
developed with a pertinent discussion of the point which includes citations to
the relevant authority”). Where an appellant has failed to cite any relevant
authority in support of a contention, the claim is waived. Commonwealth
v. Luktisch, 680 A.2d 877, 879 n.1 (Pa. Super. 1996). We decline to
review an appellant’s argument that contains no discussion of or citation to
relevant authority. Commonwealth v. Russell, 665 A.2d 1239, 1246 (Pa.
Super. 1995).
       The argument section of Appellant’s brief addressing Appellant’s first
issue focuses upon the proper admission of Officer Soto’s in-court
identification of Appellant, and merely consists of general statements
without any citation to relevant authority supporting his allegation that the
trial court erred in denying a request for a line-up. Appellant’s Brief at 6-7.
Accordingly, because Appellant has not developed any significant argument
relating to the claim of trial court error in denying a request for a line-up in
the argument section of his appellate brief, we deem this portion of the issue
to be waived.



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Appellant should have been suppressed because Officer Soto’s single-

photograph identification of Appellant two days after the incident was

inherently     suggestive     and,   therefore,    tainted     the   officer’s   in-court

identification of Appellant. We disagree.

      In reviewing a suppression ruling, “we determine whether the court’s

factual findings are supported by the record and whether the legal

conclusions drawn from them are correct.”            Commonwealth v. Mitchell,

902 A.2d 430, 450-451 (Pa. 2006). Where the party seeking review was the

defendant      below,   we    “consider    only   the   evidence      offered    by   the

Commonwealth and so much of the evidence for the defense which remains

uncontradicted when fairly read in the context of the whole record.” Id. at

451. Where the record supports the suppression court’s findings of fact, we

are bound by them and may reverse only if the legal conclusions drawn

therefrom are in error. Id.

      “In reviewing the propriety of identification evidence, the central

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

was reliable.”    Commonwealth v. Moye, 836 A.2d 973, 976 (Pa. Super.

2003).    An eyewitness’s in-court identification of the accused is reliable

where    its   basis    is   independent    of    suggestive     pretrial   procedures.

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

Commonwealth v. Abdul-Salaam, 678 A.2d 342, 349 (Pa. 1996)). The

Commonwealth must show “by clear and convincing evidence that the


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identification was not induced by events occurring between the time of the

crime and the in-court identification.” Commonwealth v. Carter, 643 A.2d

61, 71 (Pa. 1994). To determine whether an independent basis exists for a

witness’s identification, a court must consider these five factors:

      (1) the opportunity of the witness to view the criminal at the
      time of the crime; (2) the witness’s degree of attention; (3) the
      accuracy of the witness’s 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.

Kendricks, 30 A.3d at 506.         The corrupting effect of the suggestive

identification, if any, must be weighed against these factors.        Moye, 836

A.2d at 976.    In addition, a witness’s prior familiarity with the accused

creates an independent basis for the witness’s in-court identification of the

defendant.     Commonwealth v. Ali, 10 A.3d 282, 303 (Pa. 2010);

Commonwealth v. Johnson, 615 A.2d 1322, 1336 (Pa. Super. 1992).

      In addressing this issue,      the   trial   court offered the    following

discussion:

             From the evidence presented, it is clear that Officer Soto’s
      identification of [Appellant] at trial was purged of whatever taint,
      if any, was created by his previous single-photo identification of
      [Appellant].     The Commonwealth has shown by clear and
      convincing evidence that the witness’s in-court identification of
      [Appellant] had an “independent origin,” that is, that the source
      of the in-court identification was the witness’s observation of
      [Appellant] during the incident and was independent of seeing
      the single photo. Officer Soto had a prior opportunity to observe
      the criminal act, as he was purposely at the scene of the crime
      for purposes of a narcotics investigation. N.T. 06/06/14, at 8.
      This Court cannot cite to any discrepancies made between the
      pre-confrontation     description      and    [Appellant’s]  actual

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      appearance. The lapse in time between the criminal act and the
      photo identification was only two days. N.T. 06/06/14, at 17.
      While Officer Soto was observing [Appellant] at night, he did so
      with binoculars at a short distance of seven (7) to ten (10) feet
      and with a full view of his face in the vehicle without any
      obstruction. N.T. 06/06/14, at 11. Furthermore, [Officer] Soto’s
      observation of [Appellant] at the crime scene was particularly
      attentive because he was intentionally waiting for [a narcotics]
      interaction to occur. N.T. 06/06/14, at 8. Finally, Officer Soto
      has not testified as to any uncertainty in identifying [Appellant]
      in the photograph. Accordingly, we cannot conclude that the
      Court has erred in denying the motion to suppress the in-court
      identification testimony, or that the identification process in the
      instant case was prejudicial to [Appellant].

Trial Court Opinion, 10/28/14, at 4.

      We agree with the trial court in this regard. Contrary to Appellant’s

argument, Officer Soto’s exposure to Appellant’s photograph did not render

his identification of Appellant improper or tainted by suggestiveness. Being

present at the scene to conduct narcotics surveillance, Officer Soto had an

independent basis, aside from the photograph, for his identification of

Appellant as the perpetrator. N.T., 10/1/13, at 5-10. Officer Soto testified

that he had seen Appellant in photographs prior to the incident in question.

N.T., 10/1/13, at 17-18; N.T., 6/6/14, at 11. Immediately after Appellant

drove away, Sergeant Linder, who was nearly struck by Appellant’s vehicle

as the sergeant stood next to the car, approached Officer Soto and identified

Appellant by name.      N.T., 10/1/13, at 8-9, 14-15.       Likewise, Sergeant

Linder, via stipulated testimony at trial, identified Appellant through his prior

knowledge of Appellant and observations the sergeant made during the

incident.   N/T, 6/6/14, at 18-19.     Thus, Officer Soto’s view of the single

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photograph of Appellant after the incident simply allowed the police to add

additional confirmation of the name of the perpetrator.          Accordingly,

admission of Officer Soto’s identification was proper, and as such,

Appellant’s claim fails.

      In addition, the Commonwealth contends that, even if permitting

Officer Soto’s in-court identification of Appellant was erroneous, it was

essentially harmless error because it was cumulative of Sergeant Linder’s

stipulated identification of Appellant. Our Supreme Court has explained:

      Harmless error exists if the reviewing court is convinced from the
      record that (1) the error did not prejudice the defendant or the
      prejudice was de minimis, (2) the erroneously admitted evidence
      was merely cumulative of other untainted evidence, or (3) the
      properly admitted and uncontradicted evidence of guilt was so
      overwhelming and the prejudicial effect of the error was so
      insignificant by comparison that the error could not have
      contributed to the guilty verdict.

Commonwealth v. Petroll, 738 A.2d 993, 1005 (Pa. 1999). Evidence will

be considered cumulative if three requirements are met:

      (1) There should be a substantial similarity, in the type of
      evidence and the incriminating factual details between the
      tainted evidence and the untainted evidence of which it is
      “cumulative.” (2) The untainted evidence should be indisputable,
      either because the facts are in some way affirmatively accepted
      by the defendant or for other reasons. (3) Care should be taken
      that the “untainted” evidence in no way derives from the tainted
      evidence.

Commonwealth v. Billig, 399 A.2d 735, 738 (Pa. Super. 1979) (citation

omitted).




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       In this case, the admission of Officer Soto’s identification testimony

was not prejudicial.        Rather, it provided identification by an additional

independent witness who confirmed Appellant as the driver of the vehicle.

As our review of the certified record reflects, at the nonjury trial, the parties

stipulated that Sergeant Linder was present and that he would testify that he

recognized Appellant and immediately told Officer Soto Appellant’s name. 2

This untainted identification evidence from Sergeant Linder, which had been
____________________________________________


2
  Regarding the stipulation of Sergeant Linder’s testimony, the following
transpired:

       THE COURT:      Now, [Sergeant] Linder, what do you need
       [Sergeant] Linder for?

       [ASSISTANT DISTRICT ATTORNEY]: [Sergeant] Linder is going
       to testify that he approached the vehicle and saw [Appellant],
       immediately told [Officer] Soto who the person was because he
       had prior knowledge of who the person was and then [Appellant]
       sped off almost striking him.

       THE COURT: Didn’t [Officer] Soto just testify to that?

       [ASSISTANT DISTRICT ATTORNEY]: Yes, I mean. I’m just going
       to, if counsel can stipulate to what I just said there.

       THE COURT: Bring [Sergeant Linder] in.

       DEFENSE COUNSEL: I’ll stipulate that that’s what [Sergeant
       Linder is] going to say.

       THE COURT: Okay. [Sergeant] Linder is going to come in and
       say, “[Officer Soto] called me. I went up to the car. [Appellant]
       sped off. [Appellant] almost struck me. I told [Officer Soto]
       who [Appellant] was. . . .”

N.T., 6/6/14, at 18-19.



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properly admitted by stipulation, was sufficiently strong so that the

testimony of Officer Soto could not, in itself, have contributed to the verdict.

Officer Soto’s identification testimony was merely cumulative of Sergeant

Linder’s stipulated identification testimony. Therefore, we conclude that any

possible error in admitting the identification evidence provided by Officer

Soto was harmless. Thus, Appellant’s issue fails.

      In his second issue, Appellant argues that the Commonwealth failed to

prove the necessary elements for his conviction of fleeing or attempting to

elude an officer. Specifically, Appellant notes the Commonwealth failed to

establish beyond a reasonable doubt that he ignored visual and audible

signals by the police to stop his vehicle.

      When reviewing a challenge to the sufficiency of the evidence, we

evaluate the record in the light most favorable to the Commonwealth as

verdict winner, giving the prosecution the benefit of all reasonable inferences

to be drawn from the evidence.        Commonwealth v. Duncan, 932 A.2d

226, 231 (Pa. Super. 2007) (citation omitted).      “Evidence will be deemed

sufficient to support the verdict when it establishes each material element of

the crime charged and the commission thereof by the accused, beyond a

reasonable doubt.”     Id. (quoting Commonwealth v. Brewer, 876 A.2d

1029, 1032 (Pa. Super. 2005)).        However, the Commonwealth need not

establish guilt to a mathematical certainty, and it may sustain its burden by

means of wholly circumstantial evidence. Id. In addition, this Court may


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not substitute its judgment for that of the factfinder, and where the record

contains support for the convictions, they may not be disturbed. Id. Lastly,

we note that the finder of fact is free to believe some, all, or none of the

evidence presented.       Commonwealth v. Hartle, 894 A.2d 800, 804 (Pa.

Super. 2006).

       The crime of fleeing or attempting to elude a police officer is defined in

the Motor Vehicle Code as follows:

       § 3733. Fleeing or attempting to elude police officer.

       (a) Offense defined. -- Any driver of a motor vehicle who
       willfully fails or refuses to bring his vehicle to a stop, or who
       otherwise flees or attempts to elude a pursuing police officer,
       when given a visual and audible signal to bring the vehicle
       to a stop, commits an offense as graded in subsection (a.2).

75 Pa.C.S. § 3733(a) (emphasis added).

       Our thorough review of the record reflects that the Commonwealth

failed to present any evidence that police gave Appellant a visual and audible

sign to bring his vehicle to a stop.3          N.T., 6/6/14, at 7-20.   Likewise, the


____________________________________________


3
  We note that the trial court states in its opinion that “[i]n this case, the
Commonwealth proved by clear and convincing evidence that [Appellant]
refused to bring his vehicle to a stop when Sergeant Linder gave him audible
and visual signals to stop his vehicle.” Trial Court Opinion, 10/28/14, at 5
(emphasis added). However, the record reflects no such evidence was ever
presented to the trial court. Moreover, the correct burden of proof for the
Commonwealth is not “clear and convincing evidence.”              Rather, the
Commonwealth must establish all elements of the crime beyond a
reasonable doubt.




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Commonwealth has conceded that Appellant must be granted relief on this

particular issue.4 Commonwealth’s Brief at 17-18.

       Accordingly, we reverse Appellant’s conviction for fleeing or attempting

to elude a police officer and vacate his judgment of sentence. Because our

reversal is based upon insufficient evidence, Appellant cannot be re-tried for

fleeing or attempting to elude a police officer, and he is discharged as to that

____________________________________________


4
  We observe that the Commonwealth has included in its brief the following
discussion on this issue:

              III. BECAUSE THE EVIDENCE WAS INSUFFICIENT TO
              SUSTAIN [APPELLANT’S] CONVICTION OF FLEEING
              OR ATTEMPTING TO ELUDE A POLICE OFFICER, THE
              COMMONWEALTH DOES NOT OPPOSE RELIEF ON
              THIS LIMITED BASIS.

              Finally, [Appellant] challenges the sufficiency of the
       evidence sustaining his conviction of fleeing or attempting to
       elude a police officer. (Brief for Appellant at 8-9.) Upon review
       of the applicable law, the Commonwealth agrees that the
       testimony of record is inadequate to establish the “visual and
       audible signal” requirement of Section 3733 of the Motor Vehicle
       Code, notwithstanding the seriousness of [Appellant’s] conduct
       of fleeing immediately upon the arrival of Sergeant Linder and
       maneuvering his car so as to nearly hit him with the vehicle.
       See 18 Pa.C.S. § 3733 (providing that “[a]ny driver of a motor
       vehicle who willfully fails or refuses to bring his vehicle to a stop,
       or who otherwise flees or attempts to elude a pursuing police
       officer, when given a visual and audible signal to bring the
       vehicle to a stop, commits an offense as graded in subsection
       (a.2)”). Accordingly, the Commonwealth does not oppose relief
       on this limited basis.

Commonwealth’s Brief at 17-18.            We commend the Commonwealth for its
candor in this regard.




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crime. In addition, because our reversal vacates his judgment of sentence

for fleeing or attempting to elude a police officer, it upsets Appellant’s

sentencing scheme, and we remand for resentencing on the conviction of

recklessly endangering another person.5

       Judgment of sentence vacated.               Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/14/2015




____________________________________________


5
   See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006)
(stating that “[i]f our disposition upsets the overall sentencing scheme of the
trial court, we must remand so that the court can restructure its sentence
plan.”)



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