J-S24040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    ROBIN MCALLISTER                           :   No. 350 EDA 2018

                     Appeal from the Order January 2, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0005311-2017


BEFORE:      LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                            FILED JULY 03, 2019

       The Commonwealth appeals from the January 2, 2018, order entered in

the Court of Common Pleas of Philadelphia County granting Appellee Robin

McAllister’s pre-trial motion to suppress the out-of-court and in-court

identifications of Appellee as the perpetrator of the crimes against Christopher

Davis (“Mr. Davis”).1 After a careful review, we reverse the trial court’s order

and remand for further proceedings consistent with this decision.

       The relevant facts and procedural history are as follows: Appellee was

arrested and charged with various offenses in connection with the shooting of


____________________________________________


1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice
of appeal that the suppression order “terminates or substantially handicaps
the prosecution.” Pa.R.A.P. 311(d).



____________________________________
* Former Justice specially assigned to the Superior Court.
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Mr. Davis.2     On November 27, 2017, Appellee filed a counseled pre-trial

motion seeking to suppress Mr. Davis’ out-of-court and in-court identifications

of Appellee as the shooter.3 Specifically, Appellee averred the photo array

shown to Mr. Davis was unduly suggestive, thereby rendering unreliable Mr.

Davis’ out-of-court identification. Appellee further averred Mr. Davis had no

independent basis for his identification of Appellee such that any proposed in-

court identification should be suppressed.

       On December 20, 2017, Appellee proceeded to a suppression hearing at

which the Commonwealth presented the testimony of three witnesses: Police

Officer Robert Zona, Detective Michael Repici, and Detective Michael Livewell.

Appellee presented no witnesses.

       Officer Zona, an eight year veteran of the police force, testified that, on

May 5, 2017, at approximately 12:04 p.m., he was on duty and taking a

burglary report in the 2500 block of Cleveland Street when an unknown male


____________________________________________


2 Specifically, Appellee was charged with aggravated assault, 18 Pa.C.S.A. §
2702, possession of firearm, 18 Pa.C.S.A. § 6105, firearms not to be carried
without a license, 18 Pa.C.S.A. § 6106, carrying firearms in public, 18
Pa.C.S.A. § 6108, possession of instrument of crime, 18 Pa.C.S.A. § 907,
simple assault, 18 Pa.C.S.A. § 2701, and reckless endangerment, 18 Pa.C.S.A.
§ 2705.

3 Appellee also sought the suppression of physical evidence seized by the
police from 2450 North Gratz Street and sought to quash the bills of
information based on insufficient evidence. In separate orders, the trial court
denied the motion to suppress the physical evidence, but granted, in part,
Appellee’s motion to quash. Specifically, the trial court quashed the bill of
information as to the charge of firearms not to be carried without a license.
Neither of these orders are before this Court.

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approached him. N.T., 12/20/17, at 22. The unknown male reported “that

somebody was shot down the street.” Id. In response, Officer Zona entered

his patrol vehicle and drove halfway down the block where he observed Mr.

Davis on the corner of Cleveland and Cumberland Streets.        Id. at 22-23.

Officer Zona exited his vehicle and discovered that Mr. Davis had been shot in

the upper thigh. Id. at 23.

      Mr. Davis indicated that he “got shot in front of a blue house on Gratz

Street.” Id. at 25. Officer Zona testified Mr. Davis did not report to him a

specific address; however, he later came to learn that there is a blue house

at 2400 Gratz Street. Id. at 26.

      As to the description of the shooter, Mr. Davis reported “it was a black

male, late 30s, early 40s, bald head, beard, no shirt, and black sweatpants.”

Id. at 24. Officer Zona provided the information over the police radio and

transported Mr. Davis to the hospital via his police vehicle. Id. at 23-25, 31.

      Officer Zona remained at the hospital, and approximately an hour later,

Detective Repici and his partner, Detective Michael Rocks, arrived to question

Mr. Davis. Id. at 32.    Officer Zona left the room during the detectives’

questioning of Mr. Davis.     Id.   The detectives then left the hospital and,

approximately forty minutes later, at 1:49 p.m., Officer Zona received from

Detective Repici a text message depicting “a house right next to a blue




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house.”4     Id. at 32-38. Officer Zona asked Mr. Davis if 2450 North Gratz

Street (the house sitting next to the blue house) was the house the male

shooter had ran into after the shooting, and Mr. Davis replied affirmatively.

Id. at 35.

       Detective Repici, a fifteen year veteran of the police force, testified that

he and his partner were assigned to investigate the shooting that took place

on May 5, 2017, at 12:04 p.m., at the 2400 block of Gratz Street. Id. at 71.

He indicated that, immediately after receiving the assignment, he and his

partner went to the hospital to interview the victim, Mr. Davis; however, they

were unable to make contact with him at this time. Id. at 71-72. Accordingly,

they went to the 2400 block of Gratz Street where, at 1:18 p.m., they

discovered a “projectile from the top steps of 2450 North Gratz.” Id. at 73.

       Detective Repici testified he and his partner went back to the hospital

where they were able to make brief contact with Mr. Davis, who was still being

treated by hospital personnel. Id. at 77-79. Detective Repici testified that

Mr. Davis provided a “quick scenario” of what occurred, reported “he was shot

from the 2400 Block of Gratz[,]” and “explained that it was a house with a

black screen door with a porch, and it was next to an abandoned lot.” Id. at

79. Armed with this information, Detective Repici returned to the scene, took

a picture of 2450 Gratz Street, and texted it to Officer Zona, who replied that


____________________________________________


4Officer Zona testified the text message depicted part of a blue house and
another house sitting right next to it. Id. at 34-35.

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Mr. Davis affirmatively identified the house as the one into which the shooter

ran. Id. at 79-80.

      Detective Repici prepared an affidavit of probable cause to secure a

search warrant for the house. Id. at 84. In the affidavit, Detective Repici

relevantly indicated the following:

            [Mr. Davis] stated that he was on the 2400 Block of North
      Gratz Street and was approached by a black male that he knows
      by the name of Rick. Rick gave him a bag of clothes.
            Shortly after this, an unknown black male approached [Mr.
      Davis] and confronted him about the bag of clothes. The male
      stated, “That’s my bag of clothes” and produced a revolver and
      shot [Mr. Davis] one time in the leg.
            [Mr. Davis] further stated that he observed the male run in
      and out of the house on the 2400 Block of Gratz Street with a
      porch, black screen door and next to an abandoned lot.

Id. at 85.   Detective Repici testified at the hearing that he received this

information directly from Mr. Davis. Id. at 85-86.

      Detective Repici confirmed the magistrate issued a search warrant at

5:00 p.m., and at 5:15 p.m., upon execution of the warrant at 2450 North

Gratz Street, the police discovered “one pair of black sweatpants, [and] one

blue, red, and white drawstring bag containing various clothes with price tags

on them[.]” Id. at 88. Detective Repici confirmed that, based on the items

seized from the house, the police were unable to identify the owner of the

items, and no firearm was recovered at this time. Id. at 92-93.

      After executing the search warrant, at 7:00 p.m., Detective Repici and

his partner traveled back to the hospital to formally interview Mr. Davis. Id.


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at 94.   During the interview, Detective Repici received information from

Detective Livewell indicating that the police had a suspect and were preparing

a photo array to show Mr. Davis. Id. at 98. With regard to the photo array,

Detective Repici relevantly testified as follows:

      Q. When you say “prepare a photo array,” what does that mean
      specifically?
      A. When we say that, we’re saying develop six—five photos along
      with the candidate or suspect in reference to this incident.
           And at that time, we knew we needed somebody else to
      show the photo array.
      Q. Why is that?
      A. Because the way we show them, we show them the double-
      blind method.
      Q. What does the double-blind method mean?
      A. It means that we do not know who the suspect is, and the
      victim does not know who the suspect is.
      Q. After speaking with this detective, was a photo array,
      eventually, compiled?
      A. Yes.
      Q. Did you see that photo array that night on May 5, 2017?
      A. Not until after the interview.
      Q. After the interview. Okay. During the interview, was—did
      someone show Mr. Davis that photo array?
      A. Yes.
      Q. Who showed the photo array?
      A. Detective Keppol.
                                   ***
      Q. Other than showing the house and the photo array for purposes
      of   following   the   double-blind   procedures,     Detectives
      Keppol…wasn’t [i]nvolved in your investigation with Detective
      Rocks?
      A. No, they weren’t involved in this investigation up until that
      point.

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                                 ***
     Q. Detective Repici, going back to the photo arrays, do you know,
     in your experience as a…detective, how images or photo arrays
     are compiled, for a lack of a better term?
     A. Yes.
     Q. Can you explain that to Her Honor?
     A. Sure. Once we have the candidate or suspect, you can either
     physically enter the attributes of the characteristics of that male
     or female, or you could just click on the photo to similar images,
     and the database will go through a bunch of algorithms and
     processes and generate a bunch of people for you to pick from.
     Q. And when you say “the database,” what database are you
     referring to?
     A. This one, mugshots.
     Q. And do you know where the photographs of mugshots come
     from?
     A. They come from the prison system.
     Q. Is this the practice of the Philadelphia Police Department to
     photograph anybody that has been arrested for a crime in the city
     and county of Philadelphia?
     A. Yes.
     Q. And you have access and your brother detectives have access
     to that database?
     A. Correct.
     Q. In this particular case, is there any other database that’s
     utilized in this photo array, if you know?
     A. No.
     Q. And you say “algorithms,” do you know, generally, what the
     computer is doing when it generates similar images?
     A. It’s basically compiling a bunch of photos of males that have
     similar qualities to the candidate or suspect already selected.
     Q. And those qualities, are they previously entered into the
     system once the photograph is entered into the system?
     A. Usually, yes.
     Q. When you say “qualities,” what are you referring to specifically?



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      A. Skin color, height, weight, hair color, length, facial hair, scars,
      tattoos, stuff of that nature.
      Q. And in this particular case, you had nothing to do with the
      actual arrangement or the selection of the six—five other
      photographs, as you were at the hospital the entire time?
      A. Correct.

Id. at 98-100, 102-04.

      Detective Repici confirmed that Mr. Davis chose photo number 3, which

was Appellee’s photo, from the array. Id. at 101. Detective Repici indicated

that, prior to the instant incident, he did not know Appellee. Id. Based on

Mr. Davis’ identification of Appellee as the shooter, the police arrested him on

May 17, 2017. Id. at 104.

      On cross-examination, Detective Repici testified that the person

identified as “Rick” in the affidavit of probable cause for the search warrant

was determined to be a person who observed Mr. Davis after he had been

shot. Id. at 115. Detective Repici indicated that, during the formal interview

of Mr. Davis on May 5, 2017, at approximately 7:20 p.m., Mr. Davis described

the shooter as “a black guy, bald, beard, six-something, no shirt. He was a

little built, black sweatpants, a sunni beard.” Id. at 121-22. Detective Repici

testified that, in his experience, “sunni beards” are different lengths and

colors. Id. at 123.

      Detective Repici noted that, on May 11, 2017, at approximately 11:42

p.m., the police conducted a second formal interview with Mr. Davis, and Mr.

Davis “further adopted” the previously chosen photo of Appellee as the


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shooter. Id. at 141. Detective Repici testified that he interviewed a woman,

S.B., who lived at 2450 North Gratz Street, and she informed him that she

permitted Appellee to be at her house on May 5, 2017. Id. at 148-52.

      Detective Livewell, a twenty-two year veteran of the police force,

testified that he learned about the shooting during the evening of May 5, 2017,

when he reported for his shift. Id. at 171. He indicated that, while Detectives

Repici and Rocks interviewed Mr. Davis, he accessed the 75-48 Vehicle and

Pedestrian Investigation System and determined that S.B. lived at 2450 North

Gratz Street. Id. at 172. He further discovered that, in March of 2017, the

police stopped a vehicle registered to S.B. in Philadelphia; S.B. was a

passenger and Appellee was the operator. Id. Detective Livewell noted that

the description of Appellee in connection with the vehicle stop listed him as

being a male with a beard.     Id.   Accordingly, Detective Livewell accessed

Appellee’s mugshot and discovered he was an African-American bald man with

a beard and birth date consistent with Mr. Davis’ description of the shooter’s

age. Id. at 172-73.

      Detective Livewell testified that, after he informed Detective Rocks of

the existence of Appellee in connection with S.B., who lived at 2450 North

Gratz (the house from which the projectile was recovered from the front

steps), Detective Rocks asked him to create a photo array. Id. at 173.

Detective Livewell described the following process:

           Because [Appellee] was the person that I searched…his face
      popped up in the system. You can put your cursor over that

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      picture, and it would be a right click. A subsequent box would pop
      up, and I clicked on similar images. So whatever algorithm, based
      on [Appellee’s] description, whether bald, beard, black male.
      Based on the person---it would be the person entering the
      information into the computer at the time they take the picture.
            So similar images would pop up in a page just on the same
      screen with a page of eight photographs that would be males
      similar to [Appellee].
            As a result of that, I have to pick out five. I have—we want
      to prepare a double-blind photographic array, which would be six.
      I already have [Appellee]. And I went through the pages to see
      similar images of [Appellee].
            Once I came up with six, I printed these pictures out on a
      color printer[.]

Id. at 173-74.

      Detective Livewell testified the images from which he chose were all

from the same database, the photographs were the same size, and the

photographs had the same background. Id. at 175. The only difference was

the person within the photograph. Id. Detective Livewell specifically testified

that he did not alter the six photographs, which he compiled for the array, and

he gave them to Detective Rocks. Id. at 177.

      On   cross-examination,     Detective   Livewell   confirmed    that   he

independently researched and discovered Appellee had been driving S.B.’s

vehicle in March. Id. at 178. He confirmed that, when he saw that Appellee’s

physical description was consistent with the physical description of the shooter

provided by Mr. Davis, he contacted Detective Rocks to inform him that he

had a possible suspect. Id. At this point, he prepared the photo array. He

noted that the computer chose a “bunch of photos” that would match


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Appellee’s description, and Detective Livewell then chose the final five to add

to Appellee’s photograph for the array. Id. at 181. He noted the computer

program does not have “sunni” as a choice for a specific type of beard, and

he indicated that “[t]here’s all kinds of sunni style beards.” Id. at 181-82.

      With regard to Appellee’s photograph, as compared to the five other

people included in the array, the following relevant exchange occurred

between Detective Livewell and defense counsel:

      Q. Now, would you agree with me that [Appellee’s] picture is
      Photo Number 3 of that photo array?
      A. Yes, he is.
      Q. You'd agree that [Appellee's] beard is significantly longer than
      the beard of the person depicted in photos one, two, three—one,
      two, three—one, two, and four. I’m sorry.
      A. Okay.
      Q. You would agree with---
      A. I wouldn’t necessarily say significantly, because a beard
      means, basically, facial hair. The information I had at the time
      was beard.
      Q. I understand, Detective. I just want to know that, if you would
      agree with me that [Appellee’s] beard in those photos [is]
      significantly larger than photos one, two, and four?
      A. I would say it appears a little fuller and a little longer, but I
      wouldn’t use the word “significant.” I would say the guy, Number
      6, has a significantly fuller beard.
                                   ***
      Q. You never had information about any tattoos, correct?
      A. The only information I was aware of was the paperwork that
      was on Detective Rocks’ desk. It wasn’t verbally, nobody asked
      me to do this. And I did it independently. I knew it was a black
      male with a beard and 30s and 40s. And that’s all I knew.
      Q. So taking your attention to Photo Number 5, you’d agree with
      me that there’s a tattoo on his neck on the left side?


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      A. I do see the tattoo.
      Q. And I’ll take your attention to Picture Number 6.
      A. Black male with a beard.
      Q. That’s your interpretation?
      A. That’s my interpretation a little lighter skin black male with a
      beard, but it’s a black male, little bald, with a beard.

Id. at 182-84.

      Based on the aforementioned, by order entered on January 2, 2018, the

trial court granted Appellee’s motion to suppress the out-of-court and in-court

identifications of Appellee as the perpetrator. Specifically, the trial court

indicated the motion was granted “based on photo array, lack of evidence and

[p]olice credibility.” Trial Court Order, filed 1/2/18.

      On   January    8,   2018,   the   Commonwealth      filed   a   motion   for

reconsideration of the order, and by order entered on January 22, 2018, the

trial court denied the Commonwealth’s motion for reconsideration.               On

January 29, 2018, the Commonwealth filed a notice of appeal from the trial

court’s suppression order. The trial court did not direct the Commonwealth to

file a Pa.R.A.P. 1925(b) statement; however, the Commonwealth filed a

statement on February 14, 2018. Thereafter, the trial court filed a responsive

Pa.R.A.P. 1925(a) opinion.

      In its opinion, as to the reasons it granted Appellee’s motion to suppress

the out-of-court and in-court identifications, the trial court relevantly indicated

the following:




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           [The Commonwealth’s] sole complaint is that the [t]rial
     [c]ourt erred in granting the suppression of the out-of-court and
     in-court identifications, arguing that they were not suggestive and
     that there was an independent basis for identification. This
     argument is without merit.
           First and foremost, the [t]rial [c]ourt found the testimony of
     [D]etectives Repici and Livewell to be evasive and incredible when
     discussing how the pictures were chosen for the photo array.
                                 ***
            Here, there were several issues that led the [t]rial [c]ourt
     to find the photo array was unduly suggestive. The photo array
     contained six images. Within those six images shown to [Mr.
     Davis], the beards were an issue. The first, second, and fourth
     images depicted individuals with very slight beards. The fifth
     picture depicted a man with no mustache and more of a goatee
     than a beard. The final picture depicted someone with an
     extremely bushy beard. That left Appellee, in image number
     three, depicting a beard very different from the other five
     individuals. His beard very noticeably stood out amongst the six
     pictures, which added to the evidence of a suggestive line-up.
     Further, Appellee appeared larger within his picture than the other
     five individuals. His image was proportionally larger and took up
     more space of [sic] in [the] picture. With photo arrays it is
     necessary that everyone depicted is set up in the same or nearly
     the same way. Here, we had Appellee positioned in a much more
     pronounced way, which could cause him to stand out in the mind
     of the person viewing the photo array.
            Additionally, there was no mention of the perpetrator having
     any tattoos, but two of the photos displayed individuals with
     noticeable tattoos on their faces and necks. One individual had a
     very visible tattoo of a teardrop near his eye. Another had a
     noticeably large tattoo on his neck. Moreover, there was a
     significant difference between the amount of hair each individual
     had. Specifically, images one, two, and six depicted individuals
     who were bald. Image four depicted an individual with noticeably
     thicker hair. Image five appeared to have braids. This left
     Appellee, in image three, being the only one depicted with some
     hair on the sides of his head, without being completely bald and
     not nearly as thick as some of the other men. There were minimal
     similarities between the men apart from skin tone, and even that
     was questionable at best. Photo arrays are required to have
     people who appear similar within the images. These men did not


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       appear similar and Appellee’s picture stood out more so than the
       others, given his beard and how pronounced he was within his
       image specifically. Adding to the totality of the circumstances, we
       consider the credibility of the detectives. The [t]rial [c]ourt found
       that the detectives created a photo array specifically designed to
       single-out Appellee. Considering the totality of the circumstances,
       this creates a suggestive line-up with an irreparable likelihood of
       misidentification.
              If an out-of-court identification is tainted as suggestive, an
       in-court identification may still stand if there is an origin
       sufficiently distinguishable to be purged of the primary taint. As
       explained by our…Supreme Court, there are five factors which
       must be considered when determining if there is an independent
       basis for the identification.
                                           ***
              Here the Commonwealth failed to prove by clear and
       convincing evidence any of the [five] factors. In order to establish
       this, the Commonwealth should have called [Mr. Davis] to the
       stand to testify as to the…five factors. Without that testimony,
       there is no evidence within the record to suggest that the witness
       had a good opportunity to view the perpetrator, [the victim’s]
       degree of attention, the accuracy of the descriptions, or the
       [victim’s] level of certainty. There is not enough evidence within
       the record to suggest that there exists an independent basis for
       the identification.

Trial Court Opinion, filed 7/20/18, at 3-6 (citations omitted).

       On appeal, the Commonwealth first avers the trial court erred in

suppressing Mr. Davis’ out-of-court identification of Appellee as the shooter

on the basis the photo array was impermissibly suggestive.5 Specifically, the

Commonwealth avers the photo array shown to Mr. Davis “depicted six men

____________________________________________


5As the Commonwealth notes, there is no indication the trial court found the
manner in which the police showed the photo array to Mr. Davis was unduly
suggestive; but rather, the trial court concluded the photo array itself was
unduly suggestive due to various perceived differences among the photos.
Commonwealth’s Brief at 15.

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with substantially similar physical features and was thus not impermissibly

suggestive.” Commonwealth’s Brief at 13.

      In this vein, the Commonwealth notes Appellee’s photo did not “stand

out more than those of the others,” all of the subjects “exhibit[ed] similar

facial characteristics,” “[e]ach photograph was primarily a head shot depicting

the subjects’ upper chest and shoulder area,” “all of the men appeared to be

wearing t-shirts,” and the “backgrounds of each picture was…comparable in

tone (light, neutral) and color scheme (gray or blue).” Id. at 15-16.

      Moreover,   the   Commonwealth      avers   “the   men    depicted   have

substantially similar complexions, facial features, facial hair, and hairstyle.”

Id. at 16. The Commonwealth notes that all six men have facial hair with

minimal variations as to length, and all six men have some baldness with

variances as to the degree.     Id. at 17.    Additionally, the Commonwealth

argues the prominence of Appellee’s head was not larger relative to the size

of the other men’s heads, and the fact two of the men had tattoos does not

render the array unduly suggestive. Id. at 18-19.

      Initially, we set forth our standard of review:

            When reviewing the propriety of a suppression order, an
      appellate court is required to determine whether the record
      supports the suppression court’s factual findings and whether the
      inferences and legal conclusions drawn by the suppression court
      from those findings are appropriate. Where the record supports
      the factual findings of the suppression court, we are bound by
      those facts and may reverse only if the legal conclusions drawn
      therefrom are in error. However, where the appeal of the
      determination of the suppression court turns on allegations of
      legal error, the suppression court’s conclusions of law are not

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        binding on an appellate court, whose duty it is to determine if the
        suppression court properly applied the law to the facts.

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

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.
        Photographs used in line-ups are not unduly suggestive if the
        suspect’s picture does not stand out more than the others, and
        the people depicted all exhibit similar facial characteristics.

              Moreover, our scope of review from a suppression ruling is
        limited to the evidentiary record that was created at the
        suppression hearing.

Commonwealth v. Stiles, 143 A.3d 968, 978 (Pa.Super. 2016) (citations

omitted).

        We have reviewed the photo array at issue in this case to determine if

it was unduly suggestive with respect to the photographs.6 As indicated supra,

photographs are not unduly suggestive if the suspect’s picture does not stand

out more than those of the others and the subjects all exhibit similar facial

characteristics. See id.




____________________________________________


6   The color photo array is included in the certified record.

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      Initially, the background of each photo is similar, each photo is a

headshot, and each photo depicts a man wearing a t-shirt. Further, Mr. Davis

reported the shooter “was a black male, late 30s, early 40s, bald head, [and]

beard[.]” N.T., 12/20/17, at 24. All of the men depicted appear to be of a

similar age, and they have similar complexions, facial hair, and hairlines. We

specifically disagree with the trial court’s factual finding that Appellee had a

beard that was “very different from the other five individuals” or that he was

the only person “with some hair on the sides of his head, without being

completely bald[.]” Trial Court Opinion, filed 7/20/18, at 3-5. Simply put,

while there were variations in the length of the beard and the degree of

baldness among the subjects, the variations did not somehow make Appellee’s

picture stand out more than the others. See Stiles, supra.

      Further, unlike the trial court, we do not conclude that the variation in

the length of the beard, the degree of baldness, or the fact two men (neither

of which were Appellee) had tattoos requires a legal determination that the

people depicted did not all “exhibit similar facial characteristics.”   Id. at 978

(citation omitted).

      In Commonwealth v. Fisher, 564 Pa. 505, 769 A.2d 1116 (2001), the

appellant argued that the photo array was unduly suggestive because “both

witnesses described the suspect as a light-skinned African–American male

with freckles and a goatee, while only six of the eight pictures in the line-up

showed men with goatees, and only one, the picture of [the][a]ppellant,


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showed a man with freckles.” Id. at 1126. Despite the fact that all of the

men in the photographs did not have goatees or freckles, th[e] [Supreme]

Court held that the photographs were substantially similar[.]” Id. at 1127.

      In the case sub judice, while there were discrepancies among the men,

we cannot accept the trial court’s assessment that Appellee’s photo somehow

stood out from the others so as to increase the likelihood that his photo would

be chosen. See Commonwealth v. Kearney, 92 A.3d 51 (Pa.Super. 2014)

(holding   incidental   variations   in    appearance   does   not   prove   undue

suggestiveness); Commonwealth v. Crork, 966 A.2d 585 (Pa.Super. 2009)

(rejecting the appellant’s claim that the photo array was unduly suggestive

where the array contained men of similar appearance but only one other man

with light colored eyes; the appellant’s photo did not stand out from the

others).

      Further, regarding the trial court’s factual finding that Appellee’s image

“appeared larger within his picture than the other five individuals[,]” initially,

upon reviewing the photo array, we find no record support for this finding. In

any event, whatever discrepancy perceived by the trial court in this regard did

not make Appellee’s photo stand out more than the others so as to suggest

that he was the suspect. See Commonwealth v. Patterson, 940 A.2d 493

(Pa.Super. 2007) (holding array was not suggestive were the appellant’s neck

and shoulders were visible to the greatest extent, but all of the photographs




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depicted the subject’s neck and at least three of the other photographs

displayed the subject’s shoulders).

       Here, in considering the totality of the circumstances, we conclude that

Mr. Davis’ out-of-court identification was not based upon a photo array so

infected by suggestiveness as to give rise to a substantial likelihood of

irreparable misidentification. See Stiles, supra. “As the photo array is not

remarkable in any way, we find the trial court’s determination to be in error.”7

Fulmore, 25 A.3d at 348.

       Finding nothing in the record that indicates any of the pre-trial

identification proceedings were tainted, we need not reach the second

question of whether the in-court identification is inadmissible based on the

suggestiveness of the out-of-court identification and lacking an independent

basis. See id. at 349.




____________________________________________


7  We note the trial court “found the testimony of [D]etectives Repici and
Livewell to be evasive and incredible when discussing how the pictures were
chosen for the photo array.” Trial Court Opinion, filed 7/20/18, at 3 (emphasis
added). While the manner in which the police chose the photos may relate to
the credibility of Mr. Davis’ identification of Appellee, it does not require a
conclusion that the resulting photo array was unduly suggestive. See
Fulmore, supra. Further, we specifically note that we have held there is no
per se rule against the use of “mugshots,” as occurred in the case sub judice,
for identification purposes.     Commonwealth v. Roane, 142 A.3d 79
(Pa.Super. 2016). Moreover, based upon our review of the photo array, we
find no record support for the trial court’s holding that “the detectives created
a photo array specifically designed to single-out Appellee.” Trial Court
Opinion, filed 7/20/18, at 5.

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     Order     suppressing   out-of-court    and   in-court   identifications   is

REVERSED; case REMANDED; jurisdiction is RELINQUISHED.

     Judge McLaughlin has joined the memorandum.

     Judge Lazarus files a concurring memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/3/19




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