Submitted July 22, 2013
Appeal fro the Order of the Court of Common Pleas, Philadelphia County, Criminal Division, No.: CP-51-CR-0008139-2010. Before RANSOM, J.
Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellant.
Coley O. Reynolds, Philadelphia, for appellee.
BEFORE: GANTMAN, J., DONOHUE, J., and PLATT, J.[*] OPINION BY PLATT, J. DISSENTING OPINION BY DONOHUE, J.
The Commonwealth appeals from the order of November 13, 2012, which granted the motion of Appellee, Basir Lark, to suppress a child witness's identification of him as her father's murderer. Nothing in the record suggests police misconduct. Furthermore, the suppression court's finding that the identification was not reliable is not supported by the evidence of record. Accordingly, we are constrained to vacate the order of suppression and remand for proceedings consistent with this opinion.
The underlying facts in this matter are taken from the suppression hearing notes of testimony, unless otherwise noted. On March 25, 2010, Aubrey Brown, the victim, visited the home of Frances McNeill (Mother), to see their then nine-year-old daughter, S. B. and pick up her report card. (See N.T. Motion, 11/09/12, at 52, 65-66; see also N.T. Preliminary Hearing, 6/23/10, at 5-7). While Mother and the victim were speaking on the front porch, at approximately 2:54 pm, Appellee walked up to the house, stepped onto the grass in front of the porch, and fired three shots, fatally wounding Mr. Brown. When S.B. heard the first shot she ran to the doorway and came outside of the house. (See N.T. Motion, 11/09/12, at 66-68; see also N.T. Preliminary Hearing, 6/23/10, at 17, 19-20). Mother tried to force her back into the house by pushing the screen door closed. (See N.T. Motion, 11/09/12, at 67, 68). The shooter fled, and Mother's sister called the police.
That same day, police transported Mother and S.B. to police headquarters. Before the interview, S.B. sat with her Mother in the police waiting room. However, the police interviewed S.B. and her Mother separately. (See id. at 80; id., 11/13/12, at 24). S.B. gave a statement which included a verbal physical description of the man who shot her father to Detective Crystal Williams. (See N.T. Motion, 11/13/12, at 23-24). Detective Williams did not give S.B. any information about what her mother was saying, and in fact, did not know what the mother was saying. (See id. at 24). Detective Williams testified that after S.B.'s interview, she prepared a written statement which S.B. went over with her mother. No corrections were made. (See id. at 25).
The next day, after receiving a tip from a confidential informant who had been a reliable neighborhood source, the police prepared several photo arrays which included Appellee's picture. Each array contained eight photos of African-Americans with similar hair styles, facial hair, complexion and facial shapes. The police took them to Mother's home. Mother was present while S.B. selected Appellee's photo from the array. The police showed Mother a completely different photo array. Mother also picked Appellee's picture. (See N.T. Motion, 11/09/12, at 45).
On July 21, 2010, the Commonwealth charged Appellee with murder of the first degree, carrying a firearm without a license, carrying firearms on public streets or public property in Philadelphia, and possession of an instrument of crime.
On October 5, 2012, Appellee filed a supplemental omnibus pretrial motion, which included a motion to suppress. The trial court held a hearing on November 9 and 13, 2012. Following the hearing, the court suppressed S.B.'s identifications (physical description on the day of the murder and next day selection from photo array) of Appellee from the bench. The Commonwealth filed the instant, timely appeal.
On appeal, the Commonwealth raises the following questions for our review:
I. Did the [trial] court err when it suppressed a nine-year-old witness's out-of-court photographic identification of [Appellee] where the court identified no police misconduct or suggestiveness in the photo array, but speculated that the procedure was tainted by the presence of the child's mother?
II. Did the [trial] court err when it suppressed the child-witness's potential in-court identification at trial where there was no suggestive pre-trial identification procedure, and, in any event, the witness had an independent basis for identifying [Appellee]?
(Commonwealth's Brief, at 3).
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 defendant] prevailed in the suppression court, we may consider only the evidence of the defense and so much of the evidence for the Commonwealth as remains uncontradicted when read in the context of the record as a whole. 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 binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.
In re O.J., 2008 PA Super. 234, 958 A.2d 561, 564 (Pa. Super. 2008) ( en banc ), appeal denied, 605 Pa. 688, 989 A.2d 918 (Pa. 2010) (quoting Commonwealth v. Mistler, 590 Pa. 390, 912 A.2d 1265, 1268-69 (Pa. 2006)) (internal citations and quotations omitted).
Furthermore, in Commonwealth v. Kubis, 2009 PA Super. 140, 978 A.2d 391 (Pa. Super. 2009), this Court explained:
When determining the admissibility of identification testimony, this Court has held that 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. A pretrial identification will not be suppressed as violative of due process rights unless the facts demonstrate that the identification procedure was so infected by suggestiveness as to give rise to a substantial likelihood of irreparable misidentification.
Id. at 396 (internal quotation marks and citation omitted) (emphasis added). " Due process does not require that every pretrial identification of witnesses must be conducted under laboratory conditions of an approved lineup." Commonwealth v. Jones, 220 Pa.Super. 214, 283 A.2d 707, 708-09 (Pa. Super. 1971) (citation omitted). " In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable." Commonwealth v. Armstrong, 2013 PA Super. 220, 74 A.3d 228, 238 (Pa. Super. 2013) (citation omitted).
Additionally, " the purpose of a suppression order regarding exclusion of identification evidence is to prevent improper police action. Thus, where a defendant does not show that improper police ...