J-S51032-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JOSEPH VALEK,
Appellee No. 1709 EDA 2014
Appeal from the Order May 2, 2014
in the Court of Common Pleas of Philadelphia County
Criminal Division at No.: CP-51-CR-0007747-2013
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 15, 2015
The Commonwealth appeals from the order of May 2, 2014, which
denied reconsideration of the trial court’s grant of the motion of Appellee,
Joseph Valek, to suppress the identification testimony of the victim, William
Hurley.1 After review, we are constrained to reverse and remand.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
The Commonwealth may take an appeal of right from an order that does
not end the entire case if it certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution. See Pa.R.A.P. 311(d);
see also Commonwealth v. Torres, 764 A.2d 532, 536 n.2 (Pa. 2001).
The Commonwealth has included such a certification in this case.
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We take the underlying facts and procedural history in this matter
from the June 13, 2013 and February 10, 2014 notes of testimony, and our
independent review of the certified record.
On May 8, 2013, at approximately 4:55 p.m., the victim was walking
near the intersection of Rosehill Street and Indiana Avenues in Philadelphia,
when he observed Appellee, whom he knew from the neighborhood. (See
N.T. Preliminary Hearing, 6/13/13, at 4-5, 9-10; N.T. Suppression Hearing,
2/10/14, at 8-10). Appellee called out to him and, when the victim
approached him, Appellee stabbed him in the knee and the chest and stole
$20.00 from him. (See N.T. Preliminary Hearing, 6/13/13, at 5-6; N.T.
Suppression Hearing, 2/10/14, at 8-11).
When police responded to the scene, the victim described the
perpetrator as a balding, bearded white man, in his thirties, with some
weight on him. (See N.T. Suppression Hearing, 2/10/14, at 11-12, 40). An
ambulance transported the victim to Temple University Hospital, where he
remained in intensive care for approximately one week, because of his
serious lung injury. (See N.T. Preliminary Hearing, 6/13/13, at 6-8; N.T.
Suppression Hearing, 2/10/14, at 10-12).
Four days later, Philadelphia Police Detective Danielle Slobodian visited
the victim and showed him a series of photographs of people who matched
the description he had previously given to the police. (See N.T. Suppression
Hearing, 2/10/14, at 12-13, 43-45). Appellee was not in any of the
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photographs and the victim told the detective that none of the men in the
pictures was the person who attacked him. (See id. at 12-15; 44-47).
Philadelphia Police Officer Jerry Rahill, who had contacts in the
neighborhood where the crime took place, assisted Detective Slobodian in
the investigation. (See id. at 47, 70). Officer Rahill’s inquiries ultimately
led him to Appellee and one other individual who matched the description of
the perpetrator. (See id. at 16, 70-71). On May 25, 2014, Officer Rahill
took candid photographs of both possible suspects, and detained the other
individual, transporting him to the victim’s location. (See id. 16, 70-71).
When asked, the victim stated that the other individual was not the
perpetrator; Officer Rahill flipped through the photographs on his cell phone,
and the victim identified Appellee as the attacker. (See id. at 16-17, 71-
72). Officer Rahill then detained Appellee and transported him to the
homeless shelter where the victim was staying; he identified Appellee as his
attacker. (See id. at 19, 71-72). Subsequently, Officer Rahill purchased a
new cell phone and, therefore, he no longer possesses the photograph in
question. (See id. at 72).
On September 24, 2013, Appellee filed a motion seeking to suppress
the identification. The trial court held a hearing on Appellee’s motion on
February 10, 2014, at which time the Commonwealth entered the testimony
from the June 13, 2013 preliminary hearing into evidence. On April 2, 2014,
the trial court granted the motion to suppress. The Commonwealth filed a
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motion for reconsideration. Subsequently, the trial court denied that
motion. The instant, timely appeal followed. On June 2, 2014, the
Commonwealth filed a statement of errors complained of on appeal. See
Pa.R.A.P. 1925(b). On January 16, 2015, the trial court issued an opinion.
See Pa.R.A.P. 1925(a).
On appeal, the Commonwealth raises one question for our review:
Where the robbery-stabbing victim, who had seen and
interacted with [Appellee] on other occasions before the crime,
was shown a single cellphone photo of [Appellee]—whom he also
saw during the crime and accurately described to police—did the
[trial] court err in suppressing the identification evidence?
(Commonwealth’s Brief, at 1).
The Commonwealth challenges the trial court’s grant of Appellee’s
motion to suppress, arguing that the trial court erred in suppressing the
victim’s out-of-court identification of Appellee. (See id. at 9-19). When the
Commonwealth appeals from a suppression order, this Court follows a
clearly defined scope and standard of review: we consider only the evidence
from the defendant’s witnesses together with the evidence of the
prosecution that, when read in the context of the entire record, remains
uncontradicted. See Commonwealth v. Henry, 943 A.2d 967, 969 (Pa.
Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008). This Court must
first determine whether the record supports the factual findings of the
suppression court and then determine the reasonableness of the inferences
and legal conclusions drawn from those findings. See id. Here, because our
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review of the record demonstrates that the inferences and legal conclusions
that the trial court drew were not reasonable or legally correct, we are
constrained to reverse.
In its opinion, the trial court identified five bases for its suppression of
the out-of-court identification. (See Trial Court Opinion, 1/16/15, at 1-14).
Firstly, the trial court held that the identification procedure violated
established internal police directives. (See id. at 5-6). Secondly, the court
found that the use of a single photograph to identify the perpetrator is per
se improperly suggestive. (See id. at 6-9). Thirdly, the trial court
maintained that the failure of the police to preserve the single photograph
violated Appellee’s due process rights. (See id. at 9-10). Fourthly, the trial
court determined that the failure to preserve the photograph violated Brady
v. Maryland, 373 U.S. 83 (1963). (See id. at 10-13). Lastly, the trial
court concluded that the failure to disclose the photograph to Appellee
violated Pa.R.Crim.P. 573(B)(1)(f).2 (See id. at 13). These conclusions are
not legally correct.
____________________________________________
2
Rule 573 provides in relevant part:
(B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant,
and subject to any protective order which the Commonwealth
might obtain under this rule, the Commonwealth shall disclose to
the defendant’s attorney all of the following requested items or
information, provided they are material to the instant case. The
(Footnote Continued Next Page)
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This Court has stated:
[w]hether an out of court identification is to be suppressed
as unreliable, and therefore violative of due process, is
determined from the totality of the circumstances.
Suggestiveness in the identification process is a factor to be
considered in determining the admissibility of such evidence, but
suggestiveness alone does not warrant exclusion. Identification
evidence will not be suppressed unless the facts demonstrate
that the identification procedure was so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable
misidentification.
Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011), appeal
denied, 34 A.3d 827 (Pa. 2011) (citations and quotation marks omitted).
The courts review the propriety of a challenged identification to determine
whether, under the circumstances, the identification was reliable. See
Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa. Super. 2014), appeal
denied, 101 A.3d 102 (Pa. 2014).
Suggestiveness in the identification process is but one factor to
be considered in determining the admissibility of such evidence
and will not warrant exclusion absent other factors. As this
Court has explained, the following factors are to be considered in
determining the propriety of admitting identification evidence:
the opportunity of the witness to view the perpetrator at the
_______________________
(Footnote Continued)
Commonwealth shall, when applicable, permit the defendant’s
attorney to inspect and copy or photograph such items.
* * *
(f) any tangible objects, including documents,
photographs, fingerprints, or other tangible evidence . . . .
Pa.R.Crim.P. 573(B)(1)(f).
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time of the crime, the witness’ degree of attention, the accuracy
of his prior description of the perpetrator, the level of certainty
demonstrated at the confrontation, and the time between the
crime and confrontation. The corrupting effect of the suggestive
identification, if any, must be weighed against these factors.
Id. (citation omitted).
Here, the trial court found that the May 12, 2013 procedure, wherein
Detective Slobodian showed the victim a number of photographs, which did
not include a photograph of Appellee, and the victim did not make
identification, violated certain internal Philadelphia police directives. (See
Trial Ct. Op., 1/16/15, at 5-6). It also held that the May 25, 2013
procedure, wherein the victim identified a photograph of Appellee while
flipping through Officer Rahill’s cell phone, violated other internal
Philadelphia Police Directives. (See id.). Therefore, it suppressed the out-
of-court identification. (See id.). However, the breach of internal police
directives is not, absent a constitutional or statutory violation, a proper basis
for suppression of evidence. See Commonwealth v. Spangler, 809 A.2d
234, 240-41 (Pa. 2002) (explaining that “judicial enforcement of a regulation
or policy governing the conduct of a criminal investigation” is inappropriate
unless “compliance is mandated either by a statute or as a matter of
constitutional compliance[.]”) (citation omitted); see also United States v.
Caceres, 440 U.S. 741, 749-50 (1979) (failure of Internal Revenue Service
agent to follow agency regulations concerning electronic surveillance did not
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require suppression of recordings because violation of regulations was not of
constitutional significance).
Here, the violation on May 12, 2013 regarding the number of
photographs an officer should use in a photo array is both irrelevant,
because that procedure did not result in the identification of a suspect, and
is not of constitutional dimensions. (See Trial Ct. Op., at 5-6). The trial
court does not point to, and we cannot find any case where our courts have
held that the police are required to use a specific number of photographs to
make a photo array constitutional. Further, the trial court does not cite to
any statutory violation. The violation in the May 25, 2013 procedure
concerned the failure of Officer Rahill to obtain permission of the police
commissioner before taking a candid photograph of Appellee. (See id. at
6). Again, we see nothing that raises this violation of procedure to one of
constitutional or statutory dimensions. Therefore, the trial court erred in
suppressing the out-of-court identification on this basis. See Spangler,
supra at 240-41; see also Caceres, supra at 749-50.
The trial court next suppressed the out-of-court identification because
the use of a single photograph to identify Appellee was per se impermissibly
suggestive. (See Trial Ct. Op., 1/16/15, at 7-8). We disagree.
Our Supreme Court has held that “[w]hile the use by police of a single
photograph of a suspect in securing identification by a witness can
constitute an improperly suggestive procedure, Manson v.
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Brathwaite, 432 U.S. 98 . . . (1977), the reliability of a challenged
identification is to be judged under a test employing the totality of the
circumstances.” Commonwealth v. Buehl, 508 A.2d 1167, 1178 (Pa.
1986), cert. denied, 488 U.S. 871 (1988) (some quotation marks omitted)
(emphasis added). Here, our review of the record demonstrates that, under
the totality of the circumstances, the identification procedure was not
improperly suggestive.
The record reflects that the victim had previously seen Appellee
around the neighborhood and would exchange greetings with him. (See
N.T. Preliminary Hearing, 6/13/13, at 4-5, 9-10; N.T. Suppression Hearing,
2/10/14, at 8-10). The victim was able to observe Appellee for nearly
twenty seconds during the crime itself, which took place during the day.
(See N.T. Suppression Hearing, 2/10/14, at 24). Further, the victim
accurately described Appellee to the police. (See id. at 12, 40). Moreover,
the victim did not identify a suspect on May 12, when Detective Slobodian
showed him pictures of other potential suspects; did not identify the other
potential suspect that Officer Rahill showed him on May 25; the victim only
identified Appellee. (See id. at 15-16, 44-47, 71). The victim identified
Appellee less than two weeks after the incident. (See id. at 9, 13).
There is nothing in this record that demonstrates that the procedure
was unduly suggestive. (See id. at 15-16, 71). There was no testimony
that Officer Rahill did anything to influence the victim’s identification; rather,
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the record demonstrates that the victim spontaneously identified Appellee as
the perpetrator while flipping through the photographs on Officer Rahill’s cell
phone. (See id. at 15-16, 71).
Thus, the law does not support the trial court’s conclusion that the
showing of a single photograph renders identification of a suspect per se
unduly suggestive. See Buehl, supra at 1178; see also Commonwealth
v. Jones, 426 A.2d 1167, 1170-71 (Pa. Super. 1981). Further, the record
does not support the trial court’s inferences, (see Trial Ct. Op., at 8-9), that
the circumstances rendered the identification unduly suggestive. See
Commonwealth v. Bradford, 451 A.2d 1035, 1037 (Pa. Super. 1982)
(holding identification of defendant admissible where victim saw defendant’s
face for 3-4 seconds during a robbery, and stating “[w]henever the victim of
a crime has an opportunity to observe the criminal, the impression of the
face of an assailant is etched upon the prey by the terror of the occasion.”);
Commonwealth v. Rose, 401 A.2d 1148, 1155 (Pa. Super. 1979) (holding
reliability of identification outweighed any suggestiveness of procedure
where victim had opportunity to view defendant for ten seconds). Thus, the
trial court erred in holding that the suggestiveness in the use of a single
photograph outweighed the reliability of the victim’s identification. See
Kearney, supra at 65; Fulmore, supra at 346.
Next, relying on this Court’s decision in Commonwealth v. Jackson,
323 A.2d 799, 804 (Pa. Super. 1974), the trial court found that Officer
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Rahill’s failure to preserve the photograph violated Appellee’s due process
rights. (See Trial Ct. Op., at 9-10). We find this reliance to be misplaced.
In Jackson, this Court did not base the finding of a due process
violation solely on the fact that the police failed to preserve any of the
photographs used in a photo array but also on the facts that the victim
observed the defendant for less than one second during the crime and was
unable to recollect the identification procedures. See Jackson, supra at
804. Moreover, in a subsequent decision, this Court limited the holding in
Jackson to cases where the identification procedure took place after the
defendant was in custody, this is not at issue in the instant matter. See
Commonwealth v. Patterson, 572 A.2d 1258, 1267 (Pa. Super. 1990),
appeal denied, 592 A.2d 1299 (Pa. 1991). Lastly, even if Jackson applied
to cases where the defendant was not in custody, it would not apply in the
instant matter. While Officer Rahill did not preserve the single photograph
of Appellee, Detective Slobodian did preserve the initial photo array, (see
N.T. Suppression Hearing, 2/10/14, at 52-56), there is no evidence that the
police assisted the victim in making the identification, and Officer Rahill was
able to describe the circumstances of taking the picture and the picture
itself. (See id. at 71-73). In these circumstances, this Court has
distinguished Jackson and declined to suppress evidence. See
Commonwealth v. Harris, 533 A.2d 727, 730 (Pa. Super. 1987), appeal
denied, 549 A.2d 914 (Pa. 1988) (distinguishing Jackson where police
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preserved some of photo array, did not help witness make identification, and
witness identified defendant’s photograph without hesitation);
Commonwealth v. Cooper, 482 A.2d 1014, 1017 (Pa. Super. 1984)
(distinguishing Jackson where witness observed defendant for twenty
minutes and detective described missing picture). Thus, the trial court erred
in concluding that Jackson mandated suppression of the out-of-court
identification. See Patterson, supra at 1267.
The trial court also suppressed the out-of-court identification on the
basis that the failure to preserve the photograph constituted a Brady
violation. (See Trial Ct. Op., at 10-13). This Court has explained:
[i]n Brady, the United States Supreme Court held: “[T]he
suppression by the prosecution of evidence favorable to an
accused upon request violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good
faith or bad faith of the prosecution.” Brady, supra at 87. . . .
In sum, there are three necessary components to demonstrate a
Brady violation: “[t]he evidence at issue must be favorable to
the accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have
ensued.” Commonwealth v. Causey, 833 A.2d 165, 170
(Pa.Super. 2003), appeal denied, 577 Pa. 732, 848 A.2d 927
(2004).
[E]vidence is material if there is a reasonable
probability that, had the evidence been disclosed to
the defense, the result of the proceeding would have
been different. The question is whether the
favorable evidence could reasonably be taken to put
the whole case in such a different light as to
undermine confidence in the verdict. As Brady and
its progeny dictate, when the failure of the
prosecution to produce material evidence raises a
reasonable probability that the result of the trial
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would have been different if the evidence had been
produced, due process has been violated and a new
trial is warranted. Id. (internal citations and
quotation marks omitted).
Commonwealth v. Harris, 884 A.2d 920, 932 (Pa. Super. 2005), appeal
denied, 928 A.2d 1289 (Pa. 2007) (citation omitted). It is Appellant’s
burden to show the Commonwealth suppressed or withheld the evidence.
See Commonwealth v. Spotz, 18 A.3d 244, 276 (Pa. 2011).
Here, the trial court found “the photograph in the instant matter was
favorable to the accused because it is exculpatory and can be used for
impeachment purposes.” (Trial Ct. Op., at 11). This factual finding is
completely without evidentiary support. Officer Rahill described the
photograph as being of Appellee’s face taken at a distance from one-two feet
away, in the area where the incident occurred. (See N.T. Suppression
Hearing, 2/10/14, at 71-73). The record reflects that, while flipping through
Officer Rahill’s cell phone, the victim immediately identified the photograph
of Appellee as his assailant. (See id. at 16, 72). We fail to see how there is
anything in the photograph that could remotely be considered exculpatory
and/or usable for impeachment purposes.
In Illinois v. Fischer, 540 U.S. 544, 547-48 (2004), the United
States Supreme Court noted that, simply because material that was
potentially useful to a defendant had been destroyed, it did not make the
destruction a Brady violation and did not violate the Constitution absent a
showing of bad faith. See Fischer, supra at 547-48; see also
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Commonwealth v. Snyder, 963 A.2d 396, 405-06 (Pa. 2009) (same).
Here, the photograph, at most, constituted potentially useful material. The
record does not demonstrate that Officer Rahill undertook the destruction in
bad faith. (See N.T. Suppression Hearing, 2/10/14, at 72). Thus, the trial
court erred in finding that the destruction of the photograph constituted a
Brady violation. See Fischer, supra at 547-48; Snyder, supra at 405-06.
Lastly, the trial court suppressed the out-of-court identification on the
basis that the destruction of the photograph violated Pennsylvania Rule of
Criminal Procedure 573(B)(1)(f). (See Trial Ct. Op., at 13). However, in
Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008), our Supreme
Court held that Rule 573 does not apply to materials that are in the sole
possession of the police. See Collins, supra at 253 (“The Commonwealth
does not violate Rule 573 when it fails to disclose to the defense evidence
that it does not possess and of which it is unaware. . . . when the evidence
is exclusively in the custody of police, possession is not attributed to the
Commonwealth for purposes of Rule 573.”) (citations omitted). Here, there
is nothing in the record to support a finding that the Commonwealth ever
had possession of the photograph. Therefore, the trial court erred in holding
that Rule 573 mandated suppression of the out-of-court identification. See
id. at 253.
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Accordingly, for the reasons discussed above, we are constrained to
reverse the grant of suppression and remand the matter for further
proceedings consistent with this decision.
Order reversed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2015
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