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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DARRYL RICHARD HARRIS
Appellant No. 2036 MDA 2015
Appeal from the Judgment of Sentence October 28, 2015
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001431-2014
BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 28, 2016
Darryl Richard Harris (“Appellant”) appeals from the judgment of
sentence entered in the Lycoming County Court of Common Pleas following
his jury trial convictions for possession with intent to deliver (“PWID”),1
delivery of a controlled substance,2 criminal use of a communication facility,3
fleeing or attempting to elude a police officer,4 possession of a controlled
substance,5 and conspiracy.6 We affirm.
____________________________________________
1
35 P.S. § 780-113(a)(30).
2
35 P.S. § 780-113(a)(30).
3
75 Pa.C.S. § 7512(a).
4
75 Pa.C.S. § 3733(a).
5
35 P.S. § 780-113(a)(30).
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The relevant facts and procedural history of this appeal are as follows.
On August 14, 2014, a confidential informant (“CI”), helped Pennsylvania
state police set up a controlled purchase of crack cocaine. N.T., 4/22/15, at
16-17. After arranging a meeting through text messages with co-defendant
Markese Askew, the CI parked her vehicle in front of a bowling alley with
$300.00 police had given her to purchase drugs. Id. at 20-26. Appellant
drove a red vehicle past the CI, and passenger Mr. Askew waved at the CI,
indicating that she should follow them. Id. at 29. The CI followed the
vehicle until it pulled over. Id. at 30. She pulled over, exited her vehicle,
entered the back seat of Appellant’s vehicle, and sat directly behind
Appellant, the driver. Id. The CI handed the money to Appellant, and Mr.
Askew handed her bags of drugs, which she placed in her pocket before
returning to her car. Id. at 31. She returned to meet with Officer Whipple
and gave him the drugs. Id.
After the controlled purchase, Officer William Holmes, who was driving
an undercover vehicle, and Officer Jeff Paulhamus, who was in a marked
police vehicle, followed Appellant’s vehicle. Id. at 78, 89. Officer
Paulhamus initiated his police lights, and Appellant did not pull over, but
sped away until he eventually crashed. Id. at 78, 89. Appellant ran from
_______________________
(Footnote Continued)
6
18 Pa.C.S. § 903(c).
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the vehicle. Id. The officers parked their vehicles and chased Appellant on
foot until Officer Paulhamus took Appellant into custody. Id. at 78, 90.
The CI was unable to identify Appellant in a photo array that consisted
of eight photographs, one of which was Appellant. N.T. 12/16/14, at 3.
However, at a preliminary hearing, the CI positively identified Appellant
when he was sitting next to his co-defendant at the defense table. Id. at
13. She felt confident that she had correctly identified Appellant at the
preliminary hearing because she was able to see his profile, having observed
it in the car when she purchased the drugs. Id. at 18. The photo array
image of Appellant did not depict his profile. Id.
Appellant filed several pre-trial motions, including a motion to preclude
the CI’s in-court identification of Appellant due to the suggestive nature of
the identification at the preliminary hearing. The court conducted an
omnibus pre-trial motion hearing on December 16, 2014 and denied
Appellant’s motion to preclude the in-court identification.
On April 22, 2015, a jury convicted Appellant of the aforementioned
crimes. On October 28, 2015, the court sentenced Appellant to an
aggregate sentence of thirty-six (36) to seventy-two (72) months’
incarceration.7 On November 19, 2015, Appellant timely filed a notice of
appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.8
____________________________________________
7
The court imposed consecutive sentences of eighteen (18) to thirty-six
(36) months’ incarceration for PWID and for fleeing and eluding. The court
(Footnote Continued Next Page)
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Appellant raises the following issue for our review:
DID THE SUPPRESSION COURT ERR BY FAILING TO
PRECLUDE THE CONFIDENTIAL INFORMANT FROM
TESTIFYING AT TRIAL REGARDING HER IDENTIFICATION
OF THE APPELLANT DUE TO THE UNDULY SUGGESTIVE
NATURE OF THE ORIGINAL IDENTIFICATION AT THE
PRELIMINARY HEARING?
Appellant’s Brief at 7.
Appellant argues the CI’s identification of him at the preliminary
hearing was unduly suggestive because the CI was unable to identify him in
a photo array but later positively identified him when he was handcuffed,
dressed in an orange prison jumpsuit, and sitting next to his co-defendant at
the preliminary hearing. He claims that this was an unduly suggestive
identification that should have precluded the CI from identifying Appellant in
court, and that he is entitled to a new trial in which the CI is precluded from
identifying him. We disagree.
_______________________
(Footnote Continued)
imposed a concurrent sentence of twelve (12) to twenty-four (24) months’
incarceration for criminal use of a communication facility, and the rest of
Appellant’s convictions merged for sentencing purposes.
8
On November 23, 2015, the court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and he timely complied the next day. The court issued a Pa.R.A.P. 1925(a)
opinion on February 11, 2016. In its opinion, the court found Appellant
waived his issue as to the suppression ruling because the issue presented in
his concise statement was overly broad and vague. The court relies on its
opinion and order of January 14, 2015 for the reasons it denied Appellant’s
suppression motion. Because Appellant raised his issue at the suppression
hearing, and the court addressed his issue, we do not find the issue waived
based on the quality, or lack thereof, of Appellant’s concise statement.
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Preliminarily, “it is the appellant’s duty to ensure that the certified
record is complete for purposes of review.” Commonwealth v. Little, 879
A.2d 293, 301 (Pa.Super.2005), appeal denied, 890 A.2d 1057 (Pa.2005)
(quoting Commonwealth v. Dehart, 730 A.2d 991, 993 n. 1
(Pa.Super.1999), appeal denied, 745 A.2d 1218 (Pa.1999)). “A failure by
Appellant to insure that the original record certified for appeal contains
sufficient information to conduct a proper review constitutes waiver of the
issue sought to be examined.” Commonwealth v. Martz, 926 A.2d 514,
525 (Pa.Super.2007). “[I]f the appellant caused a delay or other problems
in transmitting the certified record, then he or she is not entitled to relief
and the judgment of the court below should be affirmed.” Commonwealth
v. Bongiorno, 905 A.2d 998, 1001 (Pa.Super.2006).
Here, the transcript from the preliminary hearing is not in the certified
record. We decline to affirm on the basis of waiver, however, because we
are able to conduct a review of the issue, and neither party contests that the
CI identified Appellant at the preliminary hearing.
Our standard of review for a trial court’s denial of a suppression
motion is as follows:
In addressing a challenge to a trial court’s denial of a
suppression motion we are limited to determining whether
the factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct. Since the Commonwealth prevailed in 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
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context of the record as a whole. Where the record
supports the factual findings of the trial court, we are
bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error.
Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super.2010) (quoting
Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa.2003)). “Our standard
of review is restricted to establishing whether the record supports the
suppression court’s factual findings; however, we maintain de novo review
over the suppression court’s legal conclusions.” Commonwealth v.
Guzman, 44 A.3d 688, 692 (Pa.Super.2012) (citation omitted).
Additionally, when reviewing the suppression court’s rulings, we consider
only the suppression record. See In re L.J., 79 A.3d 1073, 1085 (Pa.2013)
(“it is inappropriate to consider trial evidence as a matter of course, because
it is simply not part of the suppression record, absent a finding that such
evidence was unavailable during the suppression hearing.”).
“When an out-of-court identification is alleged to be tainted, an in-
court identification may still stand if, considering the totality of the
circumstances, the identification had an origin sufficiently distinguishable to
be purged of the primary taint.” Commonwealth v. Kendricks, 30 A.3d
499, 506 (Pa.Super.2011), appeal denied, 46 A.3d 716 (Pa.2012) (internal
quotations and citation omitted). The Commonwealth must prove this
independent basis for identification through clear and convincing evidence.
See Commonwealth v. Davis, 17 A.3d 390, 394 (Pa.Super.2011), appeal
denied, 29 A.3d 371 (Pa. 2011). “An independent basis is established when
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‘the in-court identification resulted from the criminal act and not the
suggestive [identification procedure].’” Id.
In reviewing the propriety of identification evidence, the
central inquiry is whether, under the totality of the
circumstances, the identification was reliable. The purpose
of a “one on one” identification is to enhance reliability by
reducing the time elapsed after the commission of the
crime. 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 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. Absent some special element of unfairness,
a prompt “one on one” identification is not so suggestive
as to give rise to an irreparable likelihood of
misidentification.
Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa.Super.2014), appeal
denied, 101 A.3d 102 (Pa.2014).
Although the CI did not identify Appellant in a photo array, she
positively identified him at the preliminary hearing while he was handcuffed,
wearing an orange jumpsuit and sitting next to his co-defendant at the
defense table. Regarding this identification, the suppression court reasoned:
In reviewing [the reliability factors enumerated in
Kearney, supra], the [c]ourt cannot conclude that the
identification of [Appellant] at the preliminary hearing was
so suggestive as to give rise to an irreparable likelihood of
misidentification. When the incident occurred, the CI
viewed [Appellant] from a profile position. She did not
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have an opportunity to view his whole face. She had not
previously met [Appellant]. The full face photograph of
[Appellant] set forth in the array did not produce an
identification. At the preliminary hearing, however, and as
explained by the Commonwealth without objection by
[Appellant], the CI had an opportunity to view [Appellant]
in person from a profile position, as well as a full frontal
position.
Certainly, the CI had an opportunity to view [Appellant] at
the time of the crime. While she was paying some
attention, she was certainly not paying entire attention in
light of the fact that it was a quick transaction and she was
dealing with two individuals. Further, [Appellant] was in
front of her while she was in the back seat. She did
describe [Appellant] as being a light-skinned black male
with possibl[y] a goatee. There is nothing in the record to
lead the [c]ourt to conclude that there was any level of
uncertainty by the CI when she identified [Appellant] at
the preliminary hearing and while there is some level of
suggestiveness, the [c]ourt cannot conclude that under all
of the circumstances the identification was so suggestive
as to give rise to an irreparable likelihood of
misidentification. This conclusion is bolstered by the fact
that the witness was not willing to simply identify anyone
at the array. The integrity of the identification process is
evident.
Accordingly, [Appellant’s] omnibus pretrial motion in the
nature of a motion to dismiss and motion to suppress will
be denied.
Omnibus Pretrial Motion Opinion and Order, filed January 14, 2015, at 11-
12.
The trial court’s findings are supported by the record and the legal
conclusions drawn therefrom are not error.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/28/2016
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Com. v. Harris, D.
Combined Opinion