J. A11012/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
OBINA ONYIAH, : No. 3010 EDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, May 31, 2013,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0001632-2011
BEFORE: FORD ELLIOTT, P.J.E., OLSON AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED SEPTEMBER 28, 2015
Following a jury trial, Obina Onyiah was convicted of second-degree
murder, three counts of robbery, conspiracy to commit robbery, and a
violation of the Uniform Firearms Act. Herein, he appeals from the judgment
of sentence entered on May 31, 2013, in the Court of Common Pleas of
Philadelphia County. We affirm.
The facts, as aptly summarized by the trial court, are as follows.
On Thursday, October 21, 2010, at about
10:30 a.m., William Glatz, Margaret Colbridge,
Eric Stiess, and Paul Brewington were all inside the
William Glatz Jewelers’ store, located at 6435 Rising
Sun Avenue. Mr. Glatz was the owner of this family
establishment, which had been in business for about
63 years. Ms. Colbridge and Mr. Stiess were both
long-time employees who had each worked at the
store for about 25 years. On this morning,
Mr. Brewington, an outside salesman, had a
scheduled appointment to sell jewelry to Mr. Glatz.
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Appellant and Kevin Turner entered the jewelry
store around 11:00 a.m. on October 21, 2010. They
had been in the store days before posing as
customers when they were really planning a robbery.
On that Thursday, Turner and [appellant]
approached Ms. Colbridge and asked her to remove a
link from Turner’s watch. Ms. Colbridge took the
watch to Mr. Glatz, who was in the back room of the
store. On her way to the back room, she noticed
that Mr. Brewington had left two of his bags in the
front of the store. She put one bag over the counter
and dragged the other one to the back of the store.
[Appellant] and Turner followed her as she entered
the back room. In her testimony, Ms. Colbridge
referred to the two men as “Fat” and “Skinny.” “Fat”
was Kevin Turner. “Skinny” was [appellant].
When they reached the back room, Turner
approached Mr. Stiess and put a gun to his head.
Mr. Stiess complied with Turner’s order to drop
whatever was in his hand, and dropped his gun on
the floor. [Appellant] grabbed Ms. Colbridge and put
a gun to her head. However, Ms. Colbridge struck
[appellant’s] arm, knocked his gun away, and ran for
help. As Ms. Colbridge fled, Turner yelled to
[appellant]: “Get her, shoot her.” [Appellant]
chased Ms. Colbridge, but she ran from the store
toward the pharmacy to her left, where she asked
the attendant to call police. [Appellant] ran across
the street, entered a waiting vehicle parked at Argyle
and Levick Streets and fled the scene.
Inside the jewelry store, Turner was holding a
gun to Mr. Stiess’s head. Mr. Brewington had his
hands down and his back turned to show that he was
not a threat. Turner ordered Mr. Stiess to approach
him, and as Mr. Stiess complied with that command,
Mr. Glatz reached for his gun. Turner and Mr. Glatz
then exchanged gunfire. Turner shot Mr. Glatz four
or five times, and Mr. Glatz shot Turner.
During the shooting, a bullet whizzed by
Mr. Stiess’s head and another bullet nearly struck
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Mr. Brewington. When the shooting was over,
Mr. Glatz was on the floor gasping and holding his
chest. Turner was also on the floor, but moving
around with a gun in his hand. Mr. Stiess picked up
his gun from the floor and shot Turner in the head.
He then took the gun from Turner’s hand. Despite
their efforts, Mr. Stiess and Mr. Brewington were
unable to revive Mr. Glatz. The men called 911 and
police arrived within one to two minutes.
At about 10:51 a.m., Police Officers
Donna Grebloski and Thomas Morrow responded to a
radio call of robbery in progress at a jewelry store at
6435 Rising Sun Avenue. As Officer Grebloski
entered the store, she saw Ms. Colbridge standing at
the jewelry counter in a hysterical state.
Ms. Colbridge told the officers that one of the men
had fled from the store and requested an ambulance
for Mr. Glatz. Mr. Stiess showed Officer Grebloski his
gun and shouted: “I shot him. I shot him.” As the
officers continued to the rear of the store, they saw
Turner lying face down on the floor.
Officer Grebloski also observed a gun on top of a
table behind Turner. Mr. Glatz was lying on his back
on the other side of a table.
Officer Grebloski requested two ambulances
and secured the crime scene. The rescue unit did
not transport Turner to the hospital because it
appeared that his condition was hopeless. Mr. Glatz,
who was conscious but unresponsive, was
transported to the hospital, where he underwent
several medical procedures in an attempt to save his
life. However, on October 21, 2010, at 11:40 a.m.,
Mr. Glatz was pronounced dead at Albert Einstein
Medical Center in Philadelphia.
Dr. Samuel Gulino, Chief Medical Examiner,
testified at trial as the Commonwealth’s expert in
forensic pathology. Dr. Gulino concluded to a
reasonable degree of medical certainty that the
cause of Mr. Glatz’s death was one gunshot wound to
his abdomen. He also concluded to a reasonable
degree of medical certainty that the manner of
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Mr. Glatz’s death was homicide. Dr. Gulino
determined that the bullet entered Mr. Glatz’s front
abdomen and struck the large intestine, mesentery,
pancreas, aorta, and one side of his vertebral
column. The bullet lodged in the soft tissues on the
left side of his back. This slightly deformed bullet
was recovered and submitted to police. Due to
damage to the aorta, other organs and blood
vessels, Mr. Glatz bled internally and a significant
amount of blood was found in his abdominal cavity.
Dr. Gulino stated that the blood loss caused
Mr. Glatz’s heart to stop beating, resulting in death.
Turner sustained two gunshot wounds,
including one to the left back of his head
administered by Mr. Stiess. A second gunshot
wound was located to the left lower back, where the
bullet travelled upward, struck his heart and left
lung, and lodged in the left front part of his chest.
Dr. Gulino concluded that such a wound would not
be immediately incapacitating and that an individual
would be able to move and speak until significant
blood loss caused unconsciousness. In addition to
these two gunshot wounds, Turner had one abrasion
to the right side of his forehead and a second
abrasion on the side of his right eye. Dr. Gulino
concluded that these abrasions were consistent with
Turner’s face striking the floor after he collapsed
from being shot.
At 1:50 p.m., Police Officer Christopher Reed
responded to the location and processed the crime
scene. Officer Reed found a bloody black hat with a
red brim embossed with “New Era 59Fifty” and
“Cincinnati Reds” in the doorway near Turner’s body.
Officer Reed also recovered three firearms: one
.357 caliber Smith and Wesson revolver owned by
Mr. Glatz, one .45 semi-automatic Ruger that had
been possessed by Turner, and one .380 Walther
owned by Mr. Stiess. The .357 caliber Smith and
Wesson revolver contained one 9 millimeter live
round and four fired cartridge casings. Officer Reed
also recovered five .45 caliber fired cartridge
casings, one copper jacket fragment, one copper
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projectile, and two other projectiles. He later
submitted the ballistics evidence to the Firearms
Identification Unit. In addition to finding these fired
cartridge casings, Officer Reed also observed several
strike marks inside the store.
At trial, the parties stipulated to Police Officer
Grandizio’s expertise in tool marking firearms
identification and ballistics evidence. He examined
the submitted ballistics evidence and made the
following findings. The .45 caliber semi-automatic
weapon fired the five spent cartridge casings. The
.380 Walther contained one live round and one fired
cartridge casing, and used hydroshock ammunition.
The .357 revolver contained four fired cartridge
casings and one live round inside the chamber.
Further, the Commonwealth introduced a certificate
of non-licensure, which confirmed that [appellant]
was not licensed to carry a firearm on October 21,
2010.
Officer Reed and other responding officers also
dusted the jewelry store display cases for latent
fingerprints and submitted them for further
processing at the Records and Identification Unit. At
trial, the parties stipulated to the latent fingerprint
report prepared by Patrick Raytik, a fingerprint
technician, who determined that the fingerprints
could not be attributed to [appellant], Kevin Turner,
or a third man, Jamal Hicks.
Homicide Detectives interviewed
Mr. Brewington, Ms. Colbridge, and Mr. Stiess, who
each provided a statement wherein they gave an
account of what happened inside the jewelry store
and a description of the second perpetrator. They
also interviewed Suzanne Duffy, who saw the second
man flee the crime scene. At approximately
1:45 p.m., Detectives Lucke and Dunlap arrived and
recovered surveillance video from three security
cameras inside the jewelry store. Based on
information that Detective Lucke received from other
detectives and witnesses at the scene, he narrowed
his search to certain individuals and to the time
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periods of October 19, 2010 between 10:30 a.m. and
10:45 a.m., October 20, 2010 between 2:50 p.m.
and 3:00 p.m., and October 21, 2010 between
10:30 a.m. and 11:00 a.m.
Detective Lucke compiled the relevant
timeframes chronologically into one video. On
October 19, 2010, at 10:30 a.m., the video
displayed two men entering the store. One of the
men was Turner, who was significantly taller and had
a bigger build than the other man. The second man
was of a thin build, had a medium brown
complexion, and was wearing a loose reddish orange
hoodie. At 10:39 a.m., the two men are seen exiting
the store. On October 20, 2010, at 2:54 p.m., the
video showed an individual entering and exiting the
store.
The October 21, 2010 video showed Turner
and a tall, thin man who appeared close to Turner’s
height. The tall, thin man, later identified as
[appellant], was wearing a dark hat, dark hoodie,
dark pants, and white sneakers. The video further
showed that Turner pulled out a large dark silver
semi-automatic gun and [appellant] retrieved an
item from his waistband. It also showed
Ms. Colbridge running toward the front door and
[appellant] chasing her with a gun in his right hand.
As the above transpired, a cloud of dust,
consistent with the exchange of gunfire, appeared in
the video. Ms. Colbridge can be seen running left
toward the store next door, as [appellant], who
chased her, turned right after exiting the jewelry
store. Another employee then moved to the front
door of the store. The video then showed activity in
the back of the store. One man was in the back
behind a workstation. Detective Lucke believed that
this man was Mr. Glatz, who was shot and killed.
Another individual fell to the floor. When
Detective Lucke arrived on location, he saw Turner
lying on the floor about several feet inside the rear
work area.
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During Detective Lucke’s review of his video
compilation, he viewed each frame and identified the
clearest one from which to extract a still photograph.
The best frame depicted a man wearing a dark
hoodie and a dark fitted hat with a dark brim. The
man had a brown complexion, full lips, and a slight
mustache. He did not appear to have tattoos,
piercing, jewelry, or scars. The man carried a dark
colored handgun. Detective Lucke extracted a
second frame of the man from the same angle. This
man was later identified as [appellant].
On October 23, 2010, Raneisha Carter
provided a statement to Homicide Detectives after
viewing a newspaper article that showed the side
profile of a man wearing a hat and a hoodie.
Ms. Carter thought that the man depicted in the
photograph resembled Donte Waters, her son’s
father. On the same day that Ms. Carter identified
Waters, detectives visited the respective homes of
Ms. Colbridge and Mr. Stiess and interviewed them a
second time. After being shown a photographic
array, Ms. Colbridge and Mr. Stiess each identified
Waters, as a man bearing a close resemblance to the
perpetrator. This man had similar facial
characteristics as [appellant] such as prominent lips
and nose and a dark complexion. However, police
later determined that Waters was not involved in this
incident, and identified [appellant] as the second
perpetrator.
At trial, Detective Lucke compared the still
photograph that was extracted from the jewelry
store surveillance video to a photograph of
Donte Waters taken on April 20, 2011.
Detective Lucke noted that Waters had a lighter
complexion and had distinctive tattoos on his right
neck. Detective Lucke stated that those tattoos
would have been shown in the surveillance video if
Waters had been in the jewelry store. Waters’s
height was listed as 5 feet 9 inches tall and his
weight was 155 pounds. Detective Lucke also
compared the still photograph to a photograph of
[appellant] taken on November 10, 2010. In the
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November 10, 2010 photograph, [appellant]’s height
was listed as 6 feet 3 inches and his weight was
195 pounds. Detective Lucke stated that the
individuals depicted in the two photographs had
similar facial features including the nose, the lips,
and complexion.
On November 4, 2010, Donnell Cheek provided
a statement to Detectives Cummings and Glenn.
Mr. Cheek provided this statement after he saw a
still photograph on television news while he was in a
Camden County prison. He saw this photograph
three (3) times. After he saw this still photograph,
he called a friend and asked her to contact the news
station. Mr. Cheek also spoke with his attorney.
After consulting with his attorney, Mr. Cheek was
interviewed by the detectives in this
case.[Footnote 1]
[Footnote 1] On September 29, 2010,
Mr. Cheek entered into a federal plea
agreement and a cooperation agreement
with the United States Attorney’s Office.
As a result of Mr. Cheek’s cooperation in
this case, the United States Attorney’s
Office offered to file a motion to reduce
his federal sentence.
During his interview, Mr. Cheek identified
[appellant] as the man depicted in the still
photograph. Mr. Cheek was shown a second
photograph that depicted a man with an afro and a
prominent mustache and beard and identified
[appellant] as the man depicted therein. At trial,
Mr. Cheek testified that he was 100 percent certain
of his identifications of [appellant], whom he has
known since 1997. Mr. Cheek attended the same
school as [appellant] from middle school until the
first year of high school, when [appellant]
transferred to another school. The two men had
been friends during that period and played basketball
together. The last time that Mr. Cheek had seen
[appellant] was sometime in 2005. From 1997 to
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2005, Mr. Cheek had seen [appellant] over
200 times.
On December 20, 2010, Detective Bill Urban
conducted a lineup that included five men and
[appellant], who was in the Number 4 position.
Ms. Colbridge, Mr. Stiess, and Mr. Brewington were
present and viewed the lineup. Mr. Brewington could
not identify anyone, but he further described the
second man as a black male in his 20s who was
about 5 feet and 7 to 8 inches tall and had no facial
hair and no tattoos. Mr. Stiess immediately
identified [appellant]. Ms. Colbridge identified
[appellant], stating “I think it was Number 4.”
Detective Urban considered Ms. Colbridge’s
statement to be a positive identification of
[appellant] because she did not choose anyone else.
At trial, Ms. Colbridge confirmed her identification of
[appellant].
On November 8, 2010, at 10:10 a.m.,
Detective Pitts interviewed Chioma Christine Onyiah,
[appellant’s] sister, at the Homicide Unit. As a result
of this interview, Ms. Onyiah arranged for [appellant]
to meet her outside a McDonald’s near Bridge and
Pratt Streets. At about 2:50 p.m., Police Officer
Brian Ward detained [appellant] at the intersection
of Saul Street and Cheltenham Avenue and
transported him to the Homicide Unit.
[Appellant] arrived at the Homicide Unit at
about 3:20 p.m. on November 8, 2010. At
10:55 p.m., Detective Pitts took a verbatim
statement from [appellant]. During this interview,
[appellant] was in good physical condition. He did
not appear to be under the influence of drugs or
alcohol. [Appellant] appeared to be oriented to time
and space, and his answers were responsive.
[Appellant] did not appear to be sleepy. He did not
request to use the bathroom. He did not request
food or drink. [Appellant] spoke English and stated
that he could read, write and understand English.
There were no threats or promises made to
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[appellant] before, during, or after the statement.
He was not physically abused in any way.
Before [appellant] provided his statement,
Detective Pitts advised him of his Miranda rights
and informed him that he was being questioned
about the robbery at Glatz Jewelry Store and the
murder of William Glatz. Detective Pitts and
[appellant] then engaged in an informal
conversation. Before the formal interview began,
Detective Pitts again advised [appellant] of his
Miranda rights. On the second page of his
statement, [appellant] stated that he understood his
Miranda rights and voluntarily waived them.
In his statement, [appellant] explained that a
week prior to the robbery, he was playing basketball
with another male named Jamal, who proposed that
they rob a store for quick and easy money.
[Appellant] agreed and met Jamal in a parking lot
near the Frankford Terminal, where he entered the
rear passenger seat of a dark green car with tinted
windows with Kevin Turner sitting inside. When the
two men arrived at the jewelry store, Turner entered
first and [appellant] followed.
In his statement, [appellant] further explained
what happened inside the jewelry store on October
21, 2010; how he chased Ms. Colbridge and how he
fled the scene. [Appellant] also informed police that
he discarded the hoodie, jeans and skull cap he wore
that day, and that he left the gun in Jamal’s car.
During this interview, [appellant] identified a
photograph of Jamal Hicks. He identified Turner as
“[t]he guy in the store with me.” At the end of his
interview, [appellant] signed the appropriate form to
indicate that he declined to have his statement
videotaped. On November 10, 2010, at 3:15 p.m.,
[appellant] was arrested and charged with murder,
robbery and related offenses.
On November 16, 2010, at 11:20 a.m., Jeremy
Carrion provided a statement to police after he was
contacted by the Homicide Unit. At that time,
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Mr. Carrion identified [appellant] from the still
photographs and news captions from the Internet.
Mr. Carrion also identified [appellant] at trial and
noted that [appellant] looked the same as he did the
last time that they met. Jeremy Carrion knew
[appellant] in a professional capacity from March
2009 to July 2010. During that time, he met with
[appellant] once or twice per month for anytime
between five (5) minutes to one (1) hour in standard
lighting conditions. In fact, Mr. Carrion was
[appellant’s] probation officer, but that fact was not
disclosed to the jury.
On February 9, 2011, Ms. Colbridge identified
[appellant] at his preliminary hearing. At trial, she
confirmed her prior identifications of [appellant].
Mr. Stiess also identified [appellant] at the
preliminary hearing and at trial. Mr. Brewington did
not testify at [appellant’s] preliminary hearing. At
trial, he identified [appellant]. He explained that he
was able to make this identification after he
independently viewed videotapes of the incident.
Trial court opinion, 5/30/14 at 2-12 (citations to the record omitted).
Appellant filed a motion to suppress his confession, contesting the
voluntariness of his confession; the Honorable Sandy L.V. Byrd denied the
motion, and a jury trial commenced on May 23, 2013. On May 31, 2013,
appellant was convicted of the above-stated offenses. Appellant was
sentenced to life in prison without parole. A post-sentence motion was
timely filed; on October 8, 2013, the motion was denied. A timely notice of
appeal was filed. Appellant complied with the trial court’s order to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.,
Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.
Thereafter, on January 15, 2014, appellant filed a motion for remand due to
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newly discovered evidence; a panel of this court denied the motion without
prejudice to appellant’s right to re-apply for such relief in appellant’s brief.
The following issues have been presented for our review.
I. Were the verdicts of guilty as to 2nd degree
murder, three counts of robbery, conspiracy to
commit robbery and carrying a firearm without
a license against the weight of the evidence?
II. Did the trial court err in not striking the
testimony of Paul Brewington identifying the
appellant as one of the perpetrators of the
crimes?
III. Did the trial court err in allowing the witnesses
Jeremy Car[r]ion, Donnel [Cheek] and
Detective Thurston Lucke to give their
respective opinions that the pictures taken
f[ro]m the surveillance video of the incident
were pictures of the appellant?
IV. Is the [appellant] entitled to an evidentiary
hearing because of newly discovered evidence
that Detective Pitts and Detective Jenkins, the
Detectives who secured the alleged confession
from the appellant had one [sic] three previous
occasions coerced statements from murder
suspects?
Appellant’s brief at 2.1
Appellant first challenges the weight of the evidence. Specifically,
appellant argues he should be awarded a new trial because the evidence
establishing his identity was vague, conflicting, contradictory, and
1
Additional issues contained in his Rule 1925(b) statement have not been
presented by appellant to our court in his brief; hence, we deem them to
have been abandoned.
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impeached. (Appellant’s brief at 12.) The Commonwealth asserts that the
record reveals appellant has failed to raise this claim before the trial court
pursuant to Pa.R.Crim.P. 607. We disagree. A review of appellant’s
post-trial motion reveals that the second issue therein challenges the weight
of the evidence. (Docket #12.)
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis
omitted) (citations omitted).
Appellant avers that he is 6’3” tall; he argues that because
eyewitnesses described a shorter person and the video surveillance depicted
a shorter person, it was physically impossible for him to have been the
individual in the store with Turner. Appellant, however, ignores his own
confession and other identification testimony introduced by the
Commonwealth.
Appellant presented this argument to the jury, and the Commonwealth
addressed the apparent discrepancies as to appellant’s height. (Notes of
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testimony, 5/31/13 at 63-73.) The trial court provided an instruction to the
jury regarding how to evaluate identification testimony. (Id. at 127-129.)
Here, the jury obviously accepted the version of the facts presented by the
Commonwealth’s witnesses. For instance, Brewington testified that his
statement to the police regarding appellant’s height of approximately 5’7” or
5’8” was a “guesstimate”; Brewington also testified that his identification of
appellant did not waver upon knowing appellant was 6’3”. (Notes of
testimony, 5/28/13 at 243-245.) Certainly, the jury’s verdict does not shock
one’s sense of justice. The trial court did not abuse its discretion in denying
appellant’s motion for a new trial based on the weight of the evidence.
Next, appellant claims that the trial court abused its discretion in
refusing to strike the testimony of Paul Brewington, who failed to identify
appellant at the line-up but identified him at trial. (Appellant’s brief at 14.)
On cross-examination, Brewington testified he was able to identify appellant
after watching a YouTube video that contained footage of the robbery that
jogged his memory. Appellant argues that Brewington’s testimony violated
the “best evidence rule” because the video Brewington watched was not
admitted into evidence.
Our standard of review is well settled. Questions of the admission and
exclusion of evidence are within the sound discretion of the trial court and
will not be reversed on appeal absent an abuse of discretion.
Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa.Super. 2003). The best
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evidence rule is embodied in Pa.R.E. 1002, which provides: “An original
writing, recording, or photograph is required in order to prove its content
unless these rules, other rules prescribed by the Supreme Court, or a statute
provides otherwise.”
In the present case, the rule was inapplicable because the
Commonwealth never attempted to establish the contents of the videotape,
and Brewington did not testify as to the contents of the video. Rather,
Brewington’s identification was based on his direct observation of appellant
during the robbery. Compare Commonwealth v. Lewis, 623 A.2d 355
(Pa.Super. 1993) (under best evidence rule, police officer who did not view
crime of retail theft was prohibited from testifying about what he observed
on the videotape of incident since that tape was best evidence of what
transpired), with Commonwealth v. Steward, 762 A.2d 721, 723
(Pa.Super. 2000) (best evidence rule was inapplicable where “witness
observed the theft himself and did not rely on the videotape” in describing
the incident).
Here, Brewington personally observed and testified about appellant’s
actions, and the best evidence rule was not offended. “An opportunity to
observe, even for a limited moment, can form an independent basis for an
in-court identification[.]” Commonwealth v. Baker, 614 A.2d 663, 669
(Pa. 1992). Thus, although Brewington saw appellant for a brief moment,
he had sufficient time to view appellant during the commission of the crime.
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The video merely jogged his memory of the events he had witnessed, and he
was able to identify appellant at trial.
Furthermore, we agree with the Commonwealth that appellant could
not have been prejudiced by any such error. The Commonwealth has the
burden of establishing that an error is harmless beyond a reasonable doubt.
Commonwealth v. Story, 383 A.2d 155 (Pa. 1978). “[A]n error cannot be
held harmless unless the appellate court determines that the error could not
have contributed to the verdict.” Id. at 164. An error is harmless where:
(1) the error did not prejudice the [appellant] or the
prejudice was de minimis; or (2) the erroneously
admitted evidence was merely cumulative of other,
untainted evidence which was substantially similar to
the erroneously admitted evidence; or (3) the
properly admitted and uncontradicted evidence of
guilt was so overwhelming and the prejudicial effect
of the error was so insignificant by comparison that
the error could not have contributed to the verdict.
Commonwealth v. Foy, 612 A.2d 1349 (Pa. 1992) (citations omitted).
In the case sub judice, we find any such error would have been
de minimis. Defense counsel aggressively attacked Brewington’s
identification testimony, and the court instructed the jurors to view it with
caution. The overwhelming evidence against appellant included his own
confession, the testimony of two other eyewitnesses, and the surveillance
video that captured the robbery. We cannot find that the outcome would
have changed if Brewington’s testimony had been stricken.
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The third issue presented is whether the trial court abused its
discretion by allowing two people who knew him to identify him as one of the
robbers in the surveillance video. We find no error with the trial court’s
holding. After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, it is our
determination that there is no merit to the questions raised on appeal. The
trial court’s opinion, filed on May 30, 2014, comprehensively discusses and
properly disposes of the question presented, and we affirm on that basis.
(See trial court opinion, 5/31/14 at 16-18.)
In his final claim, appellant asserts that Detective Pitts and
Detective Jenkins, the detectives who secured the alleged confession from
appellant, had on three previous occasions coerced statements from murder
suspects. Appellant seeks a remand to the trial court for a hearing on
alleged after-discovered evidence under Pennsylvania Rule of Criminal
Procedure 702(C), which we assume reflects a transposition of digits, and
that appellant, in fact, intended to cite Rule 720(C).
Rule 720(C) provides that “[a] post-sentence motion for a new trial on
the ground of after-discovered evidence must be filed in writing promptly
after such discovery.” (Emphasis added.) We have held that such a claim
may be raised for the first time on direct appeal. Commonwealth v.
Rivera, 939 A.2d 355, 358 (Pa.Super. 2007). We conclude, however, that
appellant’s proffer is insufficient to warrant a remand.
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The four-prong test for awarding a new trial because
of after-discovered evidence is well settled. The
evidence: (1) could not have been obtained prior to
trial by exercising reasonable diligence; (2) is not
merely corroborative or cumulative; (3) will not be
used solely to impeach a witness’s credibility; and
(4) would likely result in a different verdict.
Commonwealth v. Castro, 93 A.3d 818, 821 n.7 (Pa. 2014).
Appellant’s assertions are insufficient to meet the benchmarks
necessary to warrant a new trial based upon after-discovered evidence.
Appellant neglects to explain when he obtained the information alleged or
how he could not have obtained the evidence prior to trial by exercising due
diligence. Appellant does not explain any time-frame regarding when
Nafis Pinkey, Amin Speaks, or Unique Drayton’s cases were decided. Thus,
we cannot find that appellant has complied with the prompt filing
requirement. C.f. Commonwealth v. Trinidad, 90 A.3d 721 (Pa.Super.
2014) (defendant’s post-sentence motion based on alleged newly discovered
evidence was filed promptly after discovery of the evidence where defendant
filed post-sentence motion within seven days of receiving an affidavit from a
witness stating that he was a witness to the crime and had exculpatory
evidence to offer on behalf of defendant).
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J. A11012/15
Judgment of sentence affirmed.
Judge Wecht joins the Memorandum.
Judge Olson concurs in the result.
Judgment Entered.
Joseph D. Seletyn,Esq.
Prothonotary
Date: 9/28/2015
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