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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARLON GOODMAN :
:
Appellant : No. 3375 EDA 2017
Appeal from the Judgment of Sentence August 17, 2015
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003084-2013
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 19, 2019
Appellant Marlon Goodman appeals from the judgment of sentence
imposed following his convictions for first-degree murder, persons not to
possess firearms, carrying a firearm without a license, and possessing an
instrument of crime (PIC).1 Appellant claims that the police employed an
unduly suggestive identification procedure and certain testimony violated his
rights under the Confrontation Clause. We affirm.
The trial court summarized the relevant facts of this case as follows:
On October 1, 2012 around 3:50 p.m., the decedent, Donald
Wesley (“Wesley”), the mother of his child, Janeeka Lindsey
(“Lindsey”), and their young son were in Lindsey’s car in front of
Rita Precia’s (“Precia”) house at 1726 North Hollywood Street in
the City and County of Philadelphia. Lindsey’s grandmother lived
on the block and Wesley was dropping Lindsey and the child off.
Precia was sitting outside on her top step. Lateefah Shakur
(“Shakur”) was visiting her mother-in-law who lived across the
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1 18 Pa.C.S. §§ 2502(a), 6105(a)(1), 6106(a)(1), and 907(a), respectively.
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street from Precia at 1721 North Hollywood. Shakur was walking
down the steps of her mother-in-law’s house to retrieve her baby
when she saw Appellant, who was unfamiliar to her, running out
of a grassy lot across the street yelling, “Bitch you thought it was
over.” Appellant came to a full stop in front of house 1728 in the
middle of North Hollywood Street, looked at the car, and pulled a
silver handgun from his side. Lindsey first noticed Appellant, who
was unfamiliar to her, approximately fifteen (15) feet away in
front of the car. Appellant shot once at Wesley, Wesley put the
car in reverse and Appellant shot at him four or five (4-5) more
times. Appellant began running away back toward the grassy lot
on Glenwood Avenue when Wesley crashed the car into the front
steps of 1720 North Hollywood Street. Lindsey heard Appellant
say, “It ain’t over, your brother is next.” Lindsey got their child
out of the back seat of the car and ran into her grandmother’s
house with the child. Wesley was also able to make it into the
grandmother’s house, but he promptly collapsed on the floor
inside.
Precia, who witnessed the entire incident, called 911. Police
Officer Edward Fidler (“Officer Fidler”) arrived on the scene
approximately two (2) minutes later. Wesley was still alive when
Officer Fidler placed him in the back of his police car and
transported him to Temple University Hospital. Wesley was
pronounced dead on October 1, 2012 at 4:23 p.m. An autopsy
was performed by Deputy Medical Examiner Dr. Ennis.[2] Upon
reviewing the case file and photos of [the] autopsy, Deputy Chief
Medical Examiner Dr. Albert Chu testified because Dr. Ennis was
no longer with the Philadelphia Medical Examiner’s Office. Dr. Chu
determined the cause of death was a gunshot wound to the left
arm and thorax. The manner of death was found to be homicide.
Wesley was shot two (2) times. One (1) bullet went through the
left arm, exited, and entered his chest where the bullet passed
through Wesley’s left and right lungs, aorta and esophagus. The
other bullet entered the right arm. Two (2) bullets were recovered
from Wesley’s body. The injuries were consistent with Wesley
sitting in [the] front seat and turning to look over his shoulder to
reverse the direction of the car while a person standing in front of
the car shot at him.
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2 Dr. Ennis’s first name is not contained in the record.
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That same day, Lindsey, Shakur, and Precia were transported to
the Homicide Unit and gave nearly identical statements. Lindsey’s
interview with Detective Jeffrey Burke (“Detective Burke”) started
at 6:15 p.m. in a private office at the Homicide Unit. She
recounted the shooting to Detective Burke and described
Appellant as wearing dark cargo pants, a plaid shirt and a hat.
While in the interview, Lindsey made two (2) five-minute phone
calls. One (1) to her mother, JanLaRoyal Lindsey (“JanLaRoyal”),
who was with Wesley’s mother, Rita Wesley (“Rita W.”) and the
other to Wesley’s brother, Brandon Wesley (“Brandon”) who was
with his cousins. None of these individuals saw the shooting, and
Lindsey provided a description of the shooter on both calls.
JanLaRoyal and Rita W. relayed that members of the community
saw two (2) males parked in a car around the corner from the
scene and observed the shooter get out of the car. Brandon
explained that there was ongoing tension between individuals
from North 33rd and Cumberland Streets where the Wesleys lived,
and individuals from York Street after someone from Cumberland
Street killed a person from York Street. Brandon further added
that he was shot in June or July by someone named “Haas.”
Brandon suggested Haas shot Wesley and Marlon Williams was
probably the driver. Lindsey then gave the aforementioned
information she gleaned from both calls to Detective Burke and
incorporated it into her statement. Detective Burke searched
images of individuals named “Marlon” with ties to the 22nd
District[fn5], printed six (6) individual photographs of these
individuals, and showed them to Lindsey. There were no names
associated with the photos Lindsey viewed, and there was no
name on Appellant’s photo. Lindsey identified Appellant as the
shooter from the photographs at 6:46 p.m. Detective Burke did
not assert that the person in the picture was the shooter upon
displaying it to Lindsey.
33rd and Cumberland Streets, as well as York Street are
[fn5]
included in the 22nd District.
Shakur saw Precia and Lindsey at the Homicide Unit, but they did
not talk. Shakur’s interview started at 6:20 p.m. and was
conducted by Detective Spotwood. . . . In her statement, Shakur
described Appellant as wearing dark green cargo pants and a plaid
shirt. Detective Spotwood included Appellant’s photo in the photo
array shown to Shakur and she identified Appellant as the shooter
at 7:06 p.m.
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Precia also was about fifteen (15) feet away from Appellant when
she first saw him. Her interview was conducted by Detectives
Joyce . . . and Aitken . . . and started at 7:00 p.m. She described
Appellant’s clothing and hat. Precia circled Appellant’s photo out
of a photo array at 7:06 p.m.
Two pieces of ballistics evidence were recovered from the
decedent’s vehicle, a bullet and a bullet jacket. Five (5) fired
cartridge casings were recovered from the scene. The ballistics
evidence recovered from the vehicle and scene was compared
with the ballistics evidence from Wesley’s body and Police Officer
Norman DeFields . . . of the Firearms Identification Unit
determined that all ballistics evidence was fired from the same
gun. The Commonwealth presented a certificate of non-licensure
stating that . . . Appellant had no license to carry a firearm. The
Commonwealth also presented evidence that . . . Appellant had a
prior conviction on delinquency possession of a firearm by a
minor.
Trial Ct. Op., 7/15/16, at 3-7 (record citations omitted).
Police arrested Appellant on October 4, 2012. On March 11, 2013, the
Commonwealth filed a criminal information, charging Appellant with offenses
related to the shooting. On July 29, 2015, Appellant filed a motion to suppress
testimony regarding the witnesses’ identifications of Appellant as the shooter.
Appellant argued that the police presented the photographs to the witnesses
in an unduly suggestive manner and the witnesses lacked independent bases
for their identifications. Following a hearing, the court denied relief and the
matter proceeded to trial.
On August 17, 2015, a jury convicted Appellant of first-degree murder,
carrying a firearm without a license, and PIC. That same day, the trial court
conducted a separate waiver trial and convicted Appellant of persons not to
possess firearms. Immediately following the waiver trial, the court sentenced
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Appellant to a mandatory term of life imprisonment without parole for the
murder conviction with no further penalty for the remaining offenses.
Appellant timely filed a post-sentence motion, challenging the
imposition of the mandatory sentence of life imprisonment. The post-
sentence motion was denied by operation of law on December 22, 2015.
Appellant timely filed a notice of appeal on January 20, 2016. On
December 6, 2016, this Court dismissed the appeal due to counsel’s failure to
file a brief. Appellant timely filed a counseled petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546, on February 17, 2017.
On July 13, 2017, the PCRA court granted relief, reinstating Appellant’s
direct appeal rights nunc pro tunc. The court did not conduct a hearing on the
matter, and the record indicates Appellant remained incarcerated on the date
relief was granted. No further action occurred until October 3, 2017, when
the PCRA court appointed current counsel to represent Appellant. On October
16, 2017, current counsel filed a notice of appeal nunc pro tunc on Appellant’s
behalf.3
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3 “Generally, an appellate court cannot extend the time for filing an appeal.”
Commonwealth v. Patterson, 940 A.2d 493, 498 (Pa. Super. 2007).
“Nonetheless, this general rule does not affect the power of the courts to grant
relief in the case of fraud or breakdown in the processes of the court.” Id.
Here, the PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc
on July 13, 2017, and Appellant had until August 12, 2017 to file his notice of
appeal. Although the certified docket entries confirm the issuance of the order
granting PCRA relief, the docket entries do not indicate that the court informed
Appellant about the disposition of his petition. See Pa.R.Crim.P. 907 cmt.
(stating, “When the disposition granting a petition reinstates a defendant’s
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Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement on
November 13, 2017. The trial court filed a responsive Pa.R.A.P. 1925(a)
opinion, concluding Appellant was not entitled to relief.
Appellant raises two issues for our review:
[1]. The trial court erred when it denied Appellant’s motion to
suppress because the identification procedures employed by
the Philadelphia Police Department in this case were “unduly
suggestive.”
[2]. Appellant’s Confrontation Clause rights were violated where
the court allowed Dr. Albert Chu, whom did not perform the
autopsy, to testify as to the cause of death and manner of
death.
Appellant’s Brief at 4.
In his first issue, Appellant contends that the Commonwealth failed to
establish an independent basis for Lindsey’s out-of-court identification. Id. at
13. By way of background, we reiterate that before the shooting, the decedent
was driving Lindsey and their child. After the car stopped and Lindsey was
about to exit, she saw an unfamiliar man with a firearm approach. The man
yelled out, moved to within fifteen feet of the front of the car, and then opened
fire. The decedent attempted to escape by putting the car into reverse, but
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direct appeal rights nunc pro tunc, the judge must advise the defendant by
certified mail, return receipt requested that a new notice of appeal must be
filed within 30 days of the order”). Moreover, the record does not indicate
whether the court also removed prior counsel on July 13, 2017, as he
subsequently took no further action on Appellant’s behalf. Under these
circumstances, we conclude a breakdown in the operations of the court
excuses the apparent untimeliness of the instant appeal.
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the car crashed into the front steps of a nearby residence. After the crash,
Lindsey watched the shooter flee.
Approximately two-and-a-half hours after the shooting, Detective Burke
interviewed Lindsey, and Lindsey described the shooter as “tall, dark-skinned
and . . . wearing a cap.” N.T., 8/10/15, at 18. During the interview, Lindsey
made several phone calls during which she received information that “Marlon”
was involved. Id. at 23. Based on this information, Detective Burke searched
for photos of individuals named “Marlon” to show to Lindsey:
[Detective Burke]: I wanted to see if [Lindsey] recognized Marlon
once. If she identified him as, yeah, that’s the guy from that area
that they have been beefing with, I’ve seen him before, I could
then try to ascertain who is Haas from him.
[Prosecutor]: Were you going to, like, scoop him up?
[Detective Burke]: No. I was going to see if he’s ever been
arrested with any males nicknamed Haas or if he’s ever been
stopped in a car, who the people are he’s stopped with, then I
could check if they ever used the nickname Haas or, you know,
start from there, just a starting route.
Id. at 26. Detective Burke printed out six photos of potential suspects and
showed them to Lindsey, who viewed Appellant’s photo and identified him as
the shooter. Id. at 119. Detective Burke did not make any statements to
Lindsey indicating that the man in the photo might be the shooter. Detective
Burke asked Lindsey some follow-up questions to confirm that she recognized
the man in the photo as the shooter, and Lindsey reiterated her identification.
Appellant argues on appeal that the record contradicted Lindsey’s
testimony that she never took her eyes off the shooter. Appellant’s Brief at
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12. Appellant emphasizes that Lindsey provided a “basic” description of the
shooter, but the other eyewitnesses included more specific details about the
shooter’s appearance, clothing, and firearm. Id. at 13. Appellant also claims
Lindsey could not have faced the shooter as he approached, because she was
in the process of exiting the car. Id. at 12. Appellant insists Detective Burke
employed a suggestive identification procedure by showing Lindsey a single
photograph of Appellant approximately three hours after the shooting. Id.
Appellant suggests that the trial court should have granted his motion to
suppress because the Commonwealth failed to establish an independent basis
for Lindsey’s out-of-court identification. Id. at 13.
We apply the following standard when reviewing the denial of a
suppression motion:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual
findings are supported by the record and whether the legal
conclusions drawn from those facts are correct. Because
the Commonwealth prevailed before the suppression court,
we may consider only the evidence of the Commonwealth
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 suppression court’s factual findings are
supported by the record, [the appellate court is] bound by
[those] findings and may reverse only if the court’s legal
conclusions are erroneous. Where . . . the appeal of the
determination of the suppression court turns on allegations
of legal error, the suppression court’s legal conclusions are
not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law
to the facts. Thus, the conclusions of law of the courts below
are subject to [ ] plenary review.
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Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa. Super. 2017) (citation
omitted).4
“In reviewing the propriety of identification evidence, the central inquiry
is whether, under the totality of the circumstances, the identification was
reliable.” Commonwealth v. Milburn, 191 A.3d 891, 899 (Pa. Super. 2018)
(citation omitted). “A photographic identification is unduly suggestive when
the procedure creates a substantial likelihood of misidentification.”
Commonwealth v. Crork, 966 A.2d 585, 589 (Pa. Super. 2009) (citation
and quotation marks omitted). “To establish reliability in the wake of a
suggestive identification, the Commonwealth must prove, through clear and
convincing evidence, the existence of an independent basis for the
identification.” Commonwealth v. Davis, 17 A.3d 390, 394 (Pa. Super.
2011).
In deciding whether to admit contested identification evidence,
the trial court must consider: (1) the opportunity of the witness
to view the perpetrator at the time of the crime; (2) the witness’
degree of attention; (3) the accuracy of his prior description of the
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4 We acknowledge the holding in In re L.J., 79 A.3d 1073 (Pa. 2013), that
after October 30, 2013, the scope of review for a suppression issue is limited
to the record available to the suppression court. Id. at 1085, 1089 (stating
holding applies to “all litigation commenced Commonwealth-wide after the
filing of this decision”). Because the instant criminal information was filed on
March 11, 2013, prior to October 30, 2013, In re L.J. does not apply.
Nonetheless, although L.J. instructs the courts that for criminal cases
commenced before October 30, 2013, it may be “appropriate to consider all
of the testimony, not just the testimony presented at the suppression hearing,
in determining whether evidence was properly admitted,” Commonwealth v.
Chacko, 459 A.2d 311, 317 n.5 (Pa. 1983), we limit our consideration to the
suppression record.
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perpetrator at the confrontation; (4) the level of certainty
demonstrated at the confrontation; and (5) the time between the
crime and confrontation. 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.
Milburn, 191 A.3d at 899-900 (citations and quotation marks omitted).
Instantly, the trial court evaluated the totality of these circumstances
as follows:
[Detective Burke] testified that he used the information from
[Lindsey’s] phone calls . . . to search photos. Detective Burke
specifically outlined his thought process, stating that . . . upon
presenting the photos to Lindsey, Detective Burke was hoping that
a potential identification of Marlon would lead police to the person
suspected as the shooter at that time, Haas. Six (6) individual
photographs of individuals named “Marlon” with ties to the 22nd
District were printed without identifying information and provided
to Lindsey. Lindsey identified Appellant as the shooter from the
photographs.
Though Lindsey received information from [her mother and the
decedent’s mother and brother], Lindsey still had to rely on her
own, close-range observation of the Appellant to make a positive
identification . . .
* * *
At no time did Lindsey waver in her identification, and the time
between the crime and Lindsey’s confrontation was a mere four
(4) hours. Lindsey provided the description of Appellant in the
phone conversations; [Lindsey’s mother and the decedent’s
mother and brother] merely provided the context from members
of the community and [the decedent’s brother’s] personal
knowledge.
Trial Ct. Op. at 10-11.
Therefore, the trial court noted that the factors supporting the reliability
of Lindsey’s identification included her opportunity to view the perpetrator,
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the level of certainty demonstrated at the confrontation, and the time between
the crime and confrontation. See Milburn, 191 A.3d at 899. We agree with
the trial court that Lindsey’s out-of-court identification of Appellant was
sufficiently reliable and supported by the record. See Smith, 164 A.3d at
1257. Accordingly, we conclude that the trial court properly denied Appellant’s
motion to suppress.
In his second issue, Appellant contends that the Commonwealth violated
his right to confront witnesses when it called Dr. Chu to testify about the
autopsy report authored by Dr. Ennis. Appellant’s Brief at 15. Appellant
acknowledges Dr. Chu’s testimony that he did not know Dr. Ennis’s
whereabouts at the time of trial, but argues that such testimony failed to
satisfy the Commonwealth’s burden to show that Dr. Ennis was “unavailable”
under the Confrontation Clause. Id. at 15-16. Appellant further claims that
Dr. Chu did not base his conclusions on an independent review of Dr. Ennis’s
report. Id. at 16. Appellant concludes he is entitled to a new trial on this
basis. Id. at 17.
To preserve a claim of error in conjunction with a court’s evidentiary
ruling, a party must make a timely and specific objection in the trial court.
See Pa.R.E. 103(a)(1)(A), (B). “The law is clear that issues, even those of
constitutional dimension, are waived if not raised in the trial court. A new and
different theory of relief may not be successfully advanced for the first time
on appeal.” Commonwealth v. Cline, 177 A.3d 922, 927 (Pa. Super. 2017),
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appeal denied, 187 A.3d 922 (Pa. 2018) (citation and quotation marks
omitted).
Here, Appellant failed to raise any objection to Dr. Chu’s testimony in
the trial court. Further, Appellant failed to include this claim in his post-
sentence motion. See Pa.R.Crim.P. 720(B)(1)(a) (reiterating that all requests
for relief from the trial court should be stated with particularity in the post-
sentence motion). Therefore, Appellant’s claim is waived. See Pa.R.A.P.
302(a) (stating that issues that are not raised in the trial court are waived and
cannot be raised for the first time on appeal); Pa.R.E. 103(a).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/19
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