J-S15007-17



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA


                   v.

SALEEM SNEAD

                        Appellant                  No. 3444 EDA 2015


           Appeal from the Judgment of Sentence June 5, 2015
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0013827-2012


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY BOWES, J.:                              FILED MAY 22, 2017

     Saleem Snead appeals from the judgment of sentence of life

imprisonment that the trial court imposed after a jury found him guilty of

first degree murder, carrying an unlicensed firearm, carrying a firearm in

public in Philadelphia, and possessing an instrument of crime. We affirm.

     Appellant and the victim, then seventeen-year-old Paris Talbert, were

engaged in an ongoing dispute.       Over the course of several months,

Appellant tracked, chased, and threatened Mr. Talbert.    On September 7,

2012, the dispute culminated in gunfire. At approximately 11 p.m. on the

day in question, Appellant found Mr. Talbert in Charles Finley Park,

Philadelphia. Upon locating the victim, who was sitting in the park with his

friend, then seventeen-year-old Donald Carter, III, Appellant opened fire on
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the two boys and fatally struck Mr. Talbert as he attempted to flee.              Mr.

Carter escaped unharmed.

        That evening, Mr. Carter was transported to the homicide unit, and

early the next day, he provided detectives with written and videotaped

statements identifying Appellant as the person who shot Mr. Talbert.              The

detectives thereafter sought and received two search warrants for locations

where Appellant was thought to reside. At 6 a.m. on September 9, 2012,

the officers executed the first search warrant at a home on East Albanus

Street    in    Philadelphia.     Upon    entry,   Appellant   was   discovered   and

apprehended.        Appellant’s birth certificate was recovered from the house,

but the search revealed no further evidence. Similarly, the execution of the

second search warrant yielded no evidence linked to Mr. Talbert’s murder.

        Following his arrest, Appellant was transported to the homicide unit for

questioning. After being provided his Miranda1 rights, Appellant indicated

that he wished to supply the detectives with a statement without the aid of

counsel.       He provided a written statement wherein he acknowledged his

constitutional rights, and alleged that he had been present for Mr. Talbert’s

murder, but that an accomplice, Keith Brandford, had killed the victim.

Subsequently, Appellant was charged with the aforementioned offenses.


____________________________________________


1
    Miranda v. Arizona, 384 U.S. 436 (1966).



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      Appellant filed a pre-trial motion requesting that the court suppress his

inculpatory statements contending that they were the fruits of an illegal

arrest, or alternatively, that he had not been adequately apprised of his

constitutional rights.   Appellant also entreated the court to suppress Mr.

Carter’s out-of-court identification, alleging that the police utilized an unduly

suggestive identification procedure.        During pre-trial proceedings, the

Commonwealth asked to introduce evidence of prior bad acts, consisting of

two previous incidents where Appellant pursued Mr. Talbert, once while

carrying a firearm.

      On June 1, 2015, the court held a hearing on the pre-trial motions,

and thereafter, it denied Appellant’s motion to suppress.            The court

permitted the Commonwealth to proffer evidence of the previous encounters

between Appellant and the victim.      The case proceeded immediately to a

jury trial.   On June 5, 2015, the jury returned a verdict of guilty on all

counts, and the court immediately imposed a sentence of life in prison.

      Appellant filed a timely post-sentence motion, which was denied by

operation of law on October 7, 2015.          Trial counsel filed a motion to

withdraw, which was granted, and the court granted appeal counsel’s motion

to file an appeal nunc pro tunc.    Appellant complied with the directives of

Rule 1925(b) and the court authored its Rule 1925(a) opinion. This matter

is now ready for our review.

      Appellant presents five issues for our consideration:

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      I.     Did the lower court err by permitting the Commonwealth
             to introduce evidence of Appellant’s prior bad acts in which
             he sought out Talbert, though those prior bad acts were
             irrelevant to the matters at issue and unduly prejudiced
             [A]ppellant?

      II.    Did the lower court abuse its discretion by failing to grant
             a mistrial when the Commonwealth published highly
             prejudicial evidence to the jury regarding Appellant’s prior
             gun conviction where the Commonwealth conceded the
             evidence was inappropriate?

      III.   Did the lower court err in denying Appellant’s motion to
             suppress his custodial statement, as it was given after an
             illegal arrest and Appellant did not voluntarily waive his
             right against self-incrimination prior to giving the
             statement?

      IV.    Did the Commonwealth fail to prove that the single
             photograph out-of-court identification procedure employed
             was reliable and further was that procedure was wholly
             unreasonable?

      V.     Did the lower court improperly allowed [sic] Carter to
             testify as to hearsay statements of identification ostensibly
             made by Talbert shortly before his death?

Appellant’s brief at 4.

      As Appellant’s first and fifth issues pertain to the admission of

evidence, we consider them together.        The trial court’s evidentiary rulings

are afforded great deference.       Thus, “[w]e give the trial court broad

discretion, and we will only reverse a trial court’s decision to admit or deny

evidence on a showing that the trial court clearly abused its discretion.”

Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa.Super. 2015) (citation

omitted). An abuse of discretion “is not merely an error in judgment, but an



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overriding misapplication of the law, or the exercise of judgment that is

manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality,

as shown by the evidence of record.” Id.

      Appellant   first   assails   the   trial   court’s   decision   to   allow   the

Commonwealth to offer evidence of his past interactions with the victim. We

observe,

      Generally, evidence of prior bad acts or unrelated criminal
      activity is inadmissible to show that the defendant acted in
      conformity with those past acts or to show criminal propensity.
      However, evidence of prior bad acts may be admissible when
      offered to prove some other relevant fact, such as motive,
      opportunity, intent, preparation, plan, knowledge, identity, and
      absence of mistake or accident.         In determining whether
      evidence of prior bad acts is admissible, the trial court is obliged
      to balance the probative value of such evidence against its
      prejudicial impact.

Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa.Super. 2016) (internal

citation omitted); Pa.R.E. 404(b).

      The trial court permitted the Commonwealth to offer evidence

pertaining to an encounter on March 3, 2012, where Appellant chased Mr.

Talbert while brandishing a firearm, and another incident on April 7, 2012,

where Mr. Talbert fled after observing Appellant driving towards him. The

court determined that this evidence was properly admitted to prove “motive,

identity of the shooter, and to establish the natural sequence of events

leading up to the murder.”      Trial Court Opinion, 4/12/16, at 13.          It noted

that the evidence supported that the parties were embroiled in an ongoing



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dispute, which directly established motive, and that the probative value of

such evidence outweighed any prejudicial effect. Id.

       Appellant first argues that the past acts were not probative of

Appellant’s motive since, although they evince an intent to seek out the

victim, they did not shed light on the motivation behind their quarrel.         In

addition, Appellant maintains that the evidence did not identify Appellant as

the shooter, since the circumstances surrounding the prior encounters were

not sufficiently similar to those encompassing Mr. Talbert’s death to warrant

an exception to Rule 404(b).     Finally, Appellant asserts that the evidence

was not sufficiently probative of the natural sequence of events as he

admitted that he was engaged in a dispute with the victim, and thus, that

evidence was cumulative and unnecessarily prejudicial.

       We find the evidence of Appellant’s prior acts was admissible under the

res gestae exception, and, therefore, the trial court did not abuse its

discretion in allowing the relevant testimony.         This Court previously

explained the res gestae exception in Commonwealth v. Brown, 52 A.3d

320 (Pa.Super. 2012). We stated, “where the distinct crimes were part of a

chain or sequence of events which formed the history of the case and were

part   of   its   natural   development   (sometimes   called     “res     gestae”

exception)[,]” the evidence may be admissible.      Id. at 326.          Moreover,

relying on Supreme Court precedent, we observed that “the ‘res gestae’

exception to the general proscription against evidence of other crimes, is

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also known as the ‘complete story’ rationale, i.e., the evidence of other

criminal acts is admissible to ‘complete the story of the crime on trial by

proving its immediate context of happenings near in time and place.’” Id.

      The res gestae exception is subject to a balancing test to ensure the

probative value of the evidence outweighs its prejudicial impact. Thus, we

      consider factors such as the strength of the “other crimes”
      evidence, the similarities between the crimes, the time lapse
      between crimes, the need for the other crimes evidence, the
      efficacy of alternative proof of the charged crime, and the
      “degree to which the evidence probably will rouse the jury to
      overmastering hostility.”

Id.

      Here, the probative value of the two prior instances where Appellant

sought out the victim clearly outweighed its prejudicial impact.   Appellant

was convicted of murder after his ongoing dispute with the victim ended in

gunfire. Appellant was found to have stalked Mr. Talbert late at night in a

park near the victim’s home. The two contested incidents occurred months

prior to the shooting, and demonstrated Appellant’s settled desire to track

down and confront Mr. Talbert.       The fact that Appellant admitted to

quarreling with Mr. Talbert does not render this evidence as cumulative, but

rather, it was a necessary means to inform the jury of the context, history,

and natural development of the hostility between Appellant and the victim.

      In addition, evidence of the two past incidents was indispensable in

apprising the jury as to both the identity of the shooter and Appellant’s



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motive. Although Appellant conceded that he was present at the time of the

shooting, he denied firing the weapon. The evidence of the two men’s past

confrontations refuted Appellant’s claim by tending to show that Appellant,

rather than Mr. Branford, tracked Appellant to the park late at night with the

intent to kill him, and, thereafter, that he indeed shot Mr. Talbert to resolve

their differences. Hence, we find the trial court did not abuse its discretion

in permitting this evidence, and Appellant is not entitled to relief.

      Appellant’s fifth claimed error involves the trial court’s decision to

permit Mr. Carter to testify regarding the statements made by the victim

immediately prior to his death. As noted above, our standard of review is an

abuse of discretion. Talbert, supra. Appellant directs our attention to the

following testimony by Mr. Carter, claiming it represents inadmissible

hearsay:

      Prosecutor: Mr. Carter, did you have a chance to read the five
      lines below, and this was from the morning of this incident or the
      morning after this incident. I’d asked you earlier what you
      remember [Mr. Talbert] saying when [Appellant] was walking
      up. Reading this now, do you remember everything that he said
      to you concerning what he said when [Appellant] walked up?

      Mr. Carter: Yes.

      Prosecutor: And what did he say?

      Mr. Carter: He said, That’s Saleem.




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Appellant’s brief at 38; N.T. Trial, 6/2/15, at 89-90. Appellant posits that

Mr. Carter’s testimony was offered for the truth of the matter asserted, and

that not one of the enumerated exceptions to the hearsay rule apply.

      Hearsay is any statement, “other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth

of the matter asserted.” Commonwealth v. Rayner, 153 A.3d 1049, 1057

(Pa.Super. 2016); Pa.R.E. 801(c).      The trial court acknowledged that the

victim’s statement identifying Appellant prior to his shooting, as relayed to

the court by Mr. Carter, constituted hearsay. Nevertheless, it reasoned that

the statement was admissible pursuant to the present sense impression

exception to the hearsay rule contained in Pa.R.E. 803(1).

      The rule against hearsay does not exclude evidence of a statement

made by a person “describing or explaining an event or condition, made

while or immediately after the declarant perceived it.” Pa.R.E. 803(1). The

trustworthiness of the declaration “depends upon the timing of the

statement . . . [it] must be made at the time of the event or so shortly

thereafter that it is unlikely that the declarant had the opportunity to form

the purpose of misstating his observation.” Commonwealth v. Gray, 867

A.2d 560, 571 (Pa.Super. 2005) (citation omitted).

      Whether    Mr.   Talbert’s   statement   qualifies   as   a   present   sense

impression requires us to decide if it came so shortly after the events in

question that it is unlikely that he would have the opportunity to fabricate a

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lie.   Here, Mr. Talbert stated “That’s Saleem,” as a figure approached him

and Mr. Carter in the park.      Immediately thereafter, the assailant began

shooting.    We find Mr. Talbert’s contemporaneous statement satisfies the

timing requirement of the present sense impression so as to be deemed

trustworthy. Thus, the trial court did not abuse its discretion in permitting

the victim’s observation.

       In Appellant’s second issue, he argues that the lower court abused its

discretion when it failed to grant a mistrial after the Commonwealth

mistakenly published prejudicial evidence to the jury.         The evidence in

question was contained in Appellant’s statement to police.       The statement

was displayed on a screen, and the Commonwealth inadvertently included

the portion of the statement indicating Appellant had served time in prison.

We afford the trial court broad discretion in ruling on a motion for mistrial.

The court must determine

       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. Jaynes, 135 A.3d 606, 615, (Pa.Super. 2016 (brackets

and citations omitted).




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      Appellant contends that he suffered unfair prejudice when the

Commonwealth inadvertently published Appellant’s report that the murder

occurred “shortly after he was released from prison on a gun charge.”

Appellant’s brief at 22. Defense counsel objected and moved for a mistrial.

The court offered to provide the jury with an immediate curative instruction,

but defense counsel rejected this suggestion due to a concern that it would

highlight the prejudicial information.    Instead, defense counsel requested

that the general prior bad acts limiting instruction be given with the jury’s

charge.   Nevertheless, Appellant argues the limiting instruction was not

sufficient to overcome the prejudice flowing to Appellant by the erroneous

publication of his concession.

      The trial court noted that the disputed portion of Appellant’s statement

“was only a small portion of what was displayed on the screen, and when

noticed, the statement was immediately removed from the screen and the

jury removed from the room.”       Trial Court Opinion, 4/12/16, at 14.   The

court reasoned that any prejudice caused by the Commonwealth’s mistake

was cured by the limiting instruction contained within the jury charge, since,

“it is not clear that the jury even saw the complained of portion of the

statement,” and thus, “there is no reason to believe that the jury did not

follow the court’s instructions.” Id. at 15.

      Here, the Commonwealth mistakenly presented a prejudicial portion of

Appellant’s statement to the police.       Following an objection by defense

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counsel, the court denied a motion for mistrial, but agreed to offer the

following jury charge:

      Now, you’ve heard evidence that the defendant was involved in
      acts not charged and for which he is not on trial. You must only
      consider this evidence only for its bearing, if any, on the
      question of the defendant’s intent, identification and motive, and
      for no other purpose. You must not consider this evidence as
      evidence of guilt of the crime for which the defendant is now on
      trial.

      You must not regard this evidence as showing the defendant is a
      person of bad character or criminal tendency from which you
      might be inclined to infer guilt.

N.T. Trial, 6/5/15, at 116-117.

      Upon review of the record, we find that the trial court did not abuse its

discretion in denying Appellant’s motion for a mistrial.   We agree with the

trial court that the offending statement was briefly presented to the jury.

Moreover, the statement was within a larger portion of text and was not

read into the record. When the mistake was discovered, the text had been

visible for only a short time and it was promptly removed. Further, the jury

charge directed it to consider any information elicited of Appellant’s past

behavior only for its bearing on his intent, identification, and motive. The

jury is presumed to follow such instructions.    Commonwealth v. Mason,

130 A.3d 601, 673 (Pa. 2015) (citation omitted). Since the record does not

disclose that Appellant suffered prejudice from the brief reference to his

prior conviction, his second claim is without merit.




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      Appellant’s third issue relates to the denial of his motion to suppress.

Our standard of review of a denial of a motion to suppress is limited to

      determining whether the factual findings are supported by the
      record and whether the legal conclusions drawn from those facts
      are correct. [Since] the prosecution prevailed in the suppression
      court, 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 factual findings of the
      trial court, we are bound by those facts and may reverse only if
      the legal conclusions drawn therefrom are in error.

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

omitted).

      Appellant’s argument is two-fold. First, he claims that he was arrested

inside his home without an arrest warrant or exigent circumstances in

contravention of his constitutional rights under the United States and

Pennsylvania    constitutions.      Moreover,    Appellant    maintains,   the

Commonwealth failed to prove the arresting officers had probable cause for

the arrest since Appellant’s identification as the perpetrator of the crime was

corroborated by only a single eyewitness.

      At the suppression hearing, the Commonwealth offered the testimony

of Detective James Burns, who was assigned to assist in the investigation of

Mr. Talbert’s murder.    Detective Burns recounted his interview with Mr.

Carter during the morning following Mr. Talbert’s death.      Detective Burns

related that Mr. Carter, who was seventeen years old at the time, identified

Appellant as the shooter by name and indicated that he had known him

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since sixth grade. N.T. Suppression Hearing, 6/1/15, at 18-19. Mr. Carter

provided a physical description and knew Appellant’s home neighborhood

and other places he frequented.                Id. at 19-20.    Upon being shown a

photograph of Appellant, Mr. Carter immediately recognized him as the

shooter. Id. at 20-21.

       Based upon this information, two search warrants were obtained for

locations wherein Appellant was believed to reside.                  Detective Burns

reported that Appellant was discovered and apprehended while the detective

and other officers executed the first search warrant for a residence located

on West Albanus Street.         Id. at 25.       Appellant’s birth certificate was also

recovered from this location. Id. at 26.

       Appellant relies on Commonwealth v. Williams, 396 A.2d 1177 (Pa.

1978), for the proposition that the Dorman factors2 militate in favor of

finding that his constitutional rights were violated by his warrantless arrest

within his home. We find that Williams is not dispositive, and thus, that the

Dorman factors are not applicable.
____________________________________________



2
  In Dorman v. United States, 435 F.2d 385 (D.C. Cir. 1970) (en banc),
the Circuit Court of the District of Columbia detailed factors that should be
analyzed in determining whether exigent circumstances permit the
warrantless arrest of a suspect within his own home. Those factors include:
a grave offense; reasonable belief that the suspect is armed; a clear
showing of probable cause; a strong reason to believe the suspect is present
in the premises being entered; a likelihood the suspect will escape if not
swiftly apprehended; peaceful entry; and time of entry. Id. at 392-393.



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      In Williams, the court considered, inter alia, whether an arrest

following the warrantless entry into a suspect’s house violated the Fourth

Amendment.      At the time of the police’s entry and apprehension of the

suspect, they had neither a search warrant nor an arrest warrant. The court

noted that it was a matter of first-impression whether “an arrest warrant is

required to effectuate a valid arrest inside an arrestee’s home.” Williams,

supra at 1179.     The court relied upon the Circuit Court of the District of

Columbia’s analysis in Dorman v. United States, 435 F.2d 385 (D.C. Cir.

1970) (en banc), in determining that the suspect’s in-home warrantless

arrest, where the authorities entered the domicile for the purpose of

effectuating that arrest, was illegal.

      Following Williams, supra, the United States Supreme Court clarified

the constitutional implications of an in-home arrest without an arrest

warrant, noting, “[the Dorman court] reasoned that the constitutional

protection afforded to the individual’s interest in the privacy of his own home

is equally applicable to a warrantless entry for the purpose of arresting a

resident of the house[.]”        Payton v. New York, 445 U.S. 573, 588

(1980) (emphasis added). It ruled that, “the Fourth Amendment has drawn

a firm line at the entrance to the house. Absent existent circumstances, that

threshold may not reasonably be crossed without a warrant.” Id. at 590

(emphasis added).     Ultimately, the Supreme Court concluded that an “an

arrest warrant founded on probable cause implicitly carries with it the limited

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authority to enter a dwelling in which the suspect lives when there is reason

to believe the suspect is within.” Id. at 603. The High Court’s resolution in

Payton underscored that this Court’s analysis should first center upon

whether law enforcement’s entry into a suspect’s home is constitutionally

infirm before considering the legality of any ensuing arrest.

      This Court has since clarified the holding in Payton, finding that

“[w]hile Payton stands for the proposition that the Fourth Amendment

prohibits a warrantless and nonconsensual entry into a suspect’s home in

order to make a routine arrest, it does not prohibit warrantless arrest from

occurring within a home.” Commonwealth v. Gelber, 592 A.2d 672, 678

(Pa.Super. 1991). In Gelber, we found that a warrantless arrest within the

defendant’s home did not implicate Payton since the officer could have

arrested the suspect outside the home, but entered it only to preserve

evidence within.   Id. at 678-679.    Thus, as in Gelber, the circumstances

herein are distinguishable from Williams, supra.

      Instantly, Appellant does not contest the validity of the search warrant

used to gain entry to his house or the reliability of Mr. Carter’s identification

of him as the perpetrator of the crime.       Instead, he maintains that the

Commonwealth cannot justify his warrantless arrest when viewed in light of

the Dorman factors, and that a single eyewitness is not sufficient to create

clear probable cause for the arrest without further corroboration. However,

in light of Payton, supra, Appellant erroneously applies the Dorman factors

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to analyzing whether Appellant’s arrest was unconstitutional, rather than

contesting the legality of the police’s entry into his house.

      Further, Gelber, supra, explains that Payton does not bar a

warrantless arrest within a home, unless entry was secured in order to

effectuate that arrest.     Here, the police entered Appellant’s residence

pursuant to a valid search warrant to discover evidence linked to Mr.

Talbert’s homicide.   After doing so, the officers located and apprehended

Appellant within the home. Thus, the officers were legally within Appellant’s

residence at the time of his arrest.

      Additionally, Appellant’s arrest was supported by probable cause. We

consider the totality of the circumstances in evaluating whether probable

cause exists to justify a warrantless arrest.     Commonwealth v. Martin,

101 A.3d 706, 721 (Pa. 2014). We note that “[p]robable cause exists where

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

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

or is being committed,” and must be “viewed from the vantage point of a

prudent, reasonable, cautious police officer on the scene at the time of the

arrest guided by his experience and training.” Id. (citation omitted).

      Since Mr. Carter provided a reliable eyewitness identification of

Appellant to Detective Burns, who was one of the arresting officers,




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Appellant’s arrest was supported by probable cause.3           Mr. Carter supplied

Appellant’s name and where he lived, and claimed to have known him for

years before identifying him in a picture provided by Detective Burns.          As

such,    Appellant’s    arrest    was    supported   by   probable   cause.    See

Commonwealth v. Dozier, 99 A.3d 106 (Pa.Super. 2014) (finding

warrantless arrest supported by probable cause and stating “[w]e would

struggle to find a more detailed description of an assailant than an

immediate identification by name by a victim who knew the suspect for

many years[.]”); Commonwealth v. Simmen, 58 A.3d 811 (Pa.Super.

2008) (finding warrantless entry while investigating car accident permitted

by third party consent and subsequent warrantless arrest inside defendant’s

home supported by probable cause).

        Second, Appellant alleges his inculpatory statements should have been

suppressed because he did not voluntarily waive his Miranda rights.

Appellant claims that he requested an attorney prior to offering a statement

to police, but that request was denied by Detective Burns.                Appellant

emphasizes the following statement provided by Detective Burns at the

suppression hearing in support of this allegation:

        certainly, like, he had some kind of reluctance with the idea of
        signing anything or signing any statements. That didn’t last very
____________________________________________


3
  We discuss the reliability of Mr. Carter’s identification of Appellant in the
text infra.



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      long. It was a little of conversation back and forth about that,
      where, eventually, he did agree to give a written interview.

Appellant’s brief at 33; N.T. Suppression Hearing, 6/1/15, at 37. Appellant

argues that the detective’s testimony lends credence to Appellant’s assertion

that he entreated the officer for an attorney prior to giving his statement.

We disagree.

      The trial court credited Detective Burn’s testimony that Appellant

agreed to speak to him without a lawyer, and that he did not request a

lawyer thereafter. N.T. Suppression Hearing, 6/1/15, at 33; 35. Appellant

testified that he could not remember when he asked for a lawyer, but that

he was apprised of, and understood his Miranda rights. N.T. Suppression

Hearing, 6/2/15, at 44. Further, upon review of the certified record, we find

that Appellant acknowledged that he received, understood, and waived his

Miranda rights.    Appellant admitted as much in his written statement to

police, wherein he signed and initialed his recognition of those rights prior to

providing his statement. As the evidence of record supports the suppression

court’s finding that Appellant waived his right to counsel, this claim does not

warrant relief.

      Appellant’s fourth issue assails the trial court’s refusal to suppress Mr.

Carter’s out-of-court identification of Appellant. He concedes that Mr. Carter

provided Detective Burns with Appellant’s name and physical description, but

complains that the utilization of a single photograph was unduly suggestive.



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We remain mindful of our standard of review for a trial court’s denial of a

motion to suppress. Postie, supra. In addition, suppression of a pre-trial

identification   is     warranted          where    it    prevents    police        misconduct.

Commowealth           v.    Lark,   91      A.3d   165,     168-169       (Pa.Super.       2014).

Suggestiveness is but one factor used to determine the admissibility of a

pre-trial identification as the court must consider the totality of the

circumstances in rendering a suppression ruling.                    Id. at 168.       As such,

“[i]dentification     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.    Stiles,    143    A.3d     968,    978

(Pa.Super. 2016) (citation omitted).

      Here, we find that the police’s reliance on a single photograph to

confirm Appellant’s identify was not unduly suggestive.                     As noted above,

Detective Burns credibly testified that Mr. Carter provided him with

extensive information regarding the identity of Mr. Talbert’s assailant,

claiming that he had known Appellant “for a number of years.”                                N.T.

Suppression Hearing, 6/1/15, at 19.                      Mr. Carter provided additional

identifying information and at no point did he express doubt as to the

suspected offender.          Detective Burns then supplied a single photo to

confirm, for the police’s sake, the identity of the shooter. When viewing Mr.

Carter’s statements under the totality of the circumstances, a single-photo

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could not have been “so impermissibly suggestive as to give right to a very

substantial likelihood of irreparable misidentification,” Stiles, supra, since

Mr. Carter had already identified Appellant and the photo was used merely

to substantiate the information offered by Mr. Carter.     Hence, this claim

fails.

         Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/2017




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