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J. S02002/13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA v. MARIO COURTLIN PARKER, Appellant : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1612 WDA 2010

Appeal from the Judgment of Sentence, September 20, 2010, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0007624-2009 BEFORE: FORD ELLIOTT, P.J.E., BOWES AND DONOHUE, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: Filed: March 5, 2013

Mario Courtlin Parker appeals from the judgment of sentence of September 20, 2010, following his conviction of two counts of first-degree murder and other charges. We affirm. The trial court has summarized the facts of this matter as follows: On May 1, 2009, Michael Morrison (Morrison) and Laron Thornton (Thornton) were visiting ("partying") at the residence of Rachel and Daneen Robinson in the Hazelwood section of the City of Pittsburgh, Allegheny County. (T.T. 199-210) [Footnote 8] At approximately 2:30 a.m. Morrison and Thornton went outside to retrieve some items from Morrison's vehicle which was parked on Flowers Avenue near the front of the residence. (T.T. 124-130, 204-210, 289-293) As the two men were at the vehicle Appellant and a second actor approached the two men from the side of the Robinson house. (T.T. 212, 224, 321-322) Appellant and the second actor were both armed and

J. S02002/13 had attempted to cover their faces with hooded sweatshirts and/or a mask. (T.T. 212-213, 253-254, 372-373) Morrison and Thornton were ordered to empty their pockets and get on the ground. (T.T. 224, 299-300) As this was occurring, DeAndre Freeman (Freeman), who lived several houses away from the Robinson residence, was walking on the sidewalk opposite the confrontation toward his residence. (T.T. 225, 301, 357-358, 407) Freeman was approached by the second actor and knocked to the ground by being struck on the back of the head with the butt of a gun. (T.T. 360) Appellant and the second actor then ordered Morrison, Thornton, and Freeman onto the front porch of the Robinson residence. (T.T. 228, 299301, 365, 482-483) Once there, Appellant and the second actor held the three men at gunpoint and inquired as to who was in the house. (T.T. 228, 299-301, 365) They were informed that it was the two women and their children. (T.T. 228, 300-301, 365, 406) At that point the door to the residence was kicked open and the two women were brought onto the porch. (T.T. 304, 368, 374) When Appellant came back onto the porch he had partially lifted up his ski mask, and Freeman recognized him as someone he knew from the Hazelwood neighborhood. (T.T. 362, 406-407, 419-420, 482483) The women asked Appellant and the second actor whether they were going to hurt their children or their friends. The two actors answered no. (T.T. 374-375) However when asked whether they were going to hurt them (the two women), Appellant and the second actor indicated that they did not know. (T.T. 375, 407) The women were ordered back inside the house and the three men were ordered to leave the area. (T.T. 239-241, 375-378, 407) Morrison and Thornton got into Morrison's vehicle and left the area. (T.T. 238-241, 377) Freeman left the porch and walked toward his nearby residence. As he did so he heard multiple gunshots coming from the Robinson residence. (T.T. 376-380, 407) Freeman called 911 to report the incident, and he -2-

J. S02002/13 spoke with the initial officers who arrived on Flowers Avenue shortly thereafter. (T.T. 409, 496) Freeman directed the police to the Robinson residence. (T.T. 409, 496) Officers proceeded to the residence to find 32 year old Rachel Robinson inside the entryway of the home shot eighteen times - nine times in the trunk and nine times in her extremities. (T.T. 100-116, 498503) Daneen Robinson, 21 years old, was found in the same area. She was shot eleven times - twice in the head, seven times in the trunk, and twice in her extremities. (T.T. 71-99) Given the unsettled and potentially dangerous situation both women were moved to the sidewalk by SWAT team members to receive medical attention and to allow the police to search the residence for possible actors. (T.T. 140141, 498-503) DeAndre Freeman was formally interviewed by homicide detectives several hours later at which time he identified Appellant as one of the two actors, detailed Appellant's actions, provided a recorded statement and identified Appellant in a photo array. (T.T. 401-422, 477-493) Laron Thornton also identified Appellant as one of the two actors involved and picked him out of a photo array latter [sic] that day. (T.T. 344-348) The second actor was never identified. [Footnote 8] "T.T." refers to the Trial Transcript of June 2[9]-July 2, 2010. Trial court opinion, 5/23/12 at 5-7. Following a jury trial, appellant was found guilty of two counts of firstdegree murder, burglary, possession of a firearm prohibited, five counts of unlawful restraint, and criminal conspiracy to commit homicide. On

September 20, 2010, appellant was sentenced to two life sentences for

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J. S02002/13 murder and 20 to 40 years' imprisonment on the remaining counts. timely appeal followed. Appellant has raised the following issues for this court's review: I. Did the lower court err when it failed to suppress the identification made pre-trial, and all subsequent in-court identifications as well, that were made by the witness, Laron Thornton? Did the lower court err in permitting Detective Leheny to testify regarding a prior identification made by Laron Thornton? Was the evidence sufficient in this case to support the guilty verdicts as the identification of the perpetrator was not proven beyond a reasonable doubt? This

II.

III.

Appellant's brief at 7. In his first issue on appeal, appellant argues that Thornton's pre-trial identification of appellant as one of the gunmen should have been suppressed. Appellant argues that Thornton could not identify anyone right away, was prompted by the detective to identify appellant, and later recanted. Appellant claims that Thornton's identification was not reliable. The role of this Court in reviewing the denial of a suppression motion is well-established: An appellate court's standard of review in addressing a challenge to a trial court's denial of a suppression motion is 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 prosecution prevailed in the suppression -4-

J. S02002/13 court, we may consider only the evidence of the prosecution 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 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. Stevenson, 894 A.2d 759, 769 (Pa.Super.2006) (citation omitted). Although we are bound by the factual and the credibility determinations of the trial court which have support in the record, we review any legal conclusions de novo. Commonwealth v. George, 878 A.2d 881, 883 (Pa.Super.2005), appeal denied, 586 Pa. 735, 891 A.2d 730 (2005). Commonwealth v. Wells, 916 A.2d 1192, 1194-1195 (Pa.Super. 2007). As both the Pennsylvania Supreme Court and this Court have recognized, the suggestiveness of police tactics in the identification process is one factor to consider in determining whether to admit identification evidence, but suggestiveness alone will not necessarily cause the evidence to be excluded. See Commonwealth v. Ransome, 485 Pa. 490, 495, 402 A.2d 1379, 1382 (1979) ("Suggestiveness alone does not warrant exclusion. Instead `[i]t is the likelihood of misidentification which violates a defendant's right to due process, and it is this which [is] the basis of the exclusion of evidence.'" (citations omitted)); Commonwealth v. Johnson, 301 Pa.Super. 13, 446 A.2d 1311 (1982) (accord), aff'd in part, vacated in part 499 Pa. 380, 453 A.2d 922 (1982). The United States Supreme Court has stated that a pre-trial identification will not be suppressed unless it can be shown that the identification procedure "was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." Simmons v. U.S., 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968); see Commonwealth -5-

J. S02002/13 v. Johnson, 301 Pa.Super. 13, 15, 446 A.2d 1311, 1312 (1982). Commonwealth v. Vanderlin, 580 A.2d 820, 824 (Pa.Super. 1990). "[T]he reliability of an identification is the linch pin [sic] in determining whether the identification testimony is admissible. Courts must look to the totality of the circumstances to determine whether an identification is reliable." Id., citing Manson v. Brathwaite, 432 U.S. 98, 114 (1977). A hearing on appellant's pre-trial suppression motion was held on February 18, 2010. Detective Thomas Leheny testified that on the afternoon of May 1, 2009, the day of the shooting, he was interviewing Thornton at police headquarters. (Notes of testimony, 2/18/10 at 46.) Detective Leheny showed Thornton a photo array of eight individuals including appellant. (Id. at 47.) Initially, Thornton indicated that no one looked familiar. (Id. at 48.) At that point, Detective Leheny had to step out of the room for a few minutes, leaving the photo array with Thornton. (Id. at 49.) Detective

Leheny testified that he was gone no more than three minutes. (Id. at 50.) When he came back, Thornton stated that he was "pretty sure" that appellant was one of the men who had robbed him. (Id.) Thornton circled appellant's photograph and initialed it. (Id.) Detective Leheny testified that he never suggested to Thornton which, if any, photograph he should pick out. (Id.) The trial court made the following findings of fact and conclusions of law with respect to Thornton's identification: -6-

J. S02002/13 As to the second photographic array that was shown by Detective Thomas Leheny on May 1st, 2009, to one potential witness, Laron Thornton, the witness and victim who had provided a description of probable actors in this matter. A photo array was generated by Detective Leheny, which included the photograph of the actor, the suspect defendant in this matter, Mario Parker. The instructions given to the witness at that juncture by Detective Leheny were to the effect if he recognized anyone in the array to point him out. The witness initially did not make an identification in the presence of Detective Evans [sic]. He stated he wasn't sure. Excuse me. Detective Leheny. Detective Leheny then left the room to attend to another matter summoned by a fellow officer. He returned several minutes, approximately three in number, later, the witness having been left alone with the photo array and no other materials. When Leheny came back into the room, the witness gratuitously remarked that he had a chance to look over the array and he was pretty sure that the person who robbed him was the Mario Parker, again depicted in the lower right-hand corner, what I will refer to as Exhibit No. 8. It was signed and dated by that particular witness, Mr. Thornton. The Court finds in terms of the identification process that there is no infirmity in terms of taint or suggestiveness, that the photographic array is one of integrity. And what I mean by integrity in terms of substantially similar persons, height and

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