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J-S17009-13

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. VERNON RODGERS, Appellant No. 89 WDA 2012 IN THE SUPERIOR COURT OF PENNSYLVANIA

Appeal from the Judgment of Sentence July 14, 2011 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0018792-2009 BEFORE: BENDER, J., MUNDY, J., and STRASSBURGER, J.* MEMORANDUM BY BENDER, J.: Filed: April 19, 2013

Appellant, Vernon Rodgers, appeals from the judgment of sentence of life imprisonment without the possibility of parole, imposed after a jury convicted him of first-degree murder and carrying a firearm without a license. Appellant claims that in-court identifications of him by two

Commonwealth witnesses should have been suppressed, and that the verdicts were against the weight of the evidence. After careful review, we affirm. At Appellant's jury trial, which took place from May 5 to May 12, 2011, the Commonwealth presented the following evidence.1
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City of McKeesport

Retired Senior Judge assigned to the Superior Court.

We note that the trial court did not provide a summary of the facts of Appellant's case in its Pa.R.A.P. 1925(a) opinion.

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Police Officer Daniel Rich testified that shortly after 3:00 p.m. on November 2, 2009, he responded to reports of gunshots fired at a residence at 1609 Sixth Street in McKeesport, Pennsylvania. N.T. Trial, 5/5/11-5/12/11, at 50. Outside that residence, the officer discovered Derrick Smith bleeding profusely from gunshot wounds to his head. Id. at 55, 60. Smith was lying in a "half-seated position with his head slumped right over [a] gas meter." Id. at 55. Smith was pronounced dead shortly thereafter. Id. at 60. Next, City of McKeesport Police Officer Timothy Bliss testified for the Commonwealth. Officer Bliss, a canine officer, explained that he arrived at the scene of Smith's shooting with his dog, Diesel. Id. at 80. Diesel began tracking a human scent and led Officer Bliss to the 800 block of Ridge Street, where the officer discovered a firearm lying in a weeded area. Id. at 85. That firearm was determined to be a black .38 caliber Special Charter Arms revolver. Id. at 109, 402. There were also four spent shell casings and one live round found near the gun, which was itself empty. Id. at 111, 402-403. After the firearm was located, Diesel continued tracking in the

area of Enterprise Alley until "the track terminated" near the intersection of that alley and Colfax Street. Id. at 87. Roderick Gregory also testified for the Commonwealth. He explained to the jury that he grew up in McKeesport and was living there on November 2, 2009. Id. at 145. That day, Gregory was "[h]anging with friends" on

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Sixth Street, including the victim, Smith, as well as Appellant and two other young men.2 Id. at 146. Gregory left Appellant and Smith, who was sitting

on the porch of 1609 Sixth Street, and walked to another friend's home on Sixth Street. Id. at 148. Approximately five minutes later, Gregory heard gunshots and ran outside to find Smith shot dead. Id. at 148-49. Gregory stated he did not see Appellant at the scene. Id. at 150. Gregory was subsequently interviewed by police and picked Appellant's picture out of a photographic array, identifying Appellant as the person he saw on the porch with Smith just prior to the shooting. Id. at 158. Gregory also told police that Appellant was wearing a black hooded sweatshirt and that his hair was braided. Id. at 161-62. Gregory testified that the night before Smith was shot, Smith told him that Appellant was "trying to set [Smith] up." Id. at 178. Gregory stated that "set him up" could have

meant different things, including that Appellant wanted to kill Smith. Id. Additionally, the Commonwealth called Denise Love to the stand. She testified that she had known Smith all her life. Id. at 181. On November 2, 2009, Love was staying with a woman named Candy Coleman who lived in a home at 1619 Sixth Street, which was next door to the home outside of which Smith was shot. Id. at 182. Love testified that on the morning of Smith's murder, she saw Smith standing with Appellant on Sixth Street
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Appellant was 19 years' old at the time of this incident. Id. at 407.

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when she and Coleman's daughter, Monaey, left the house to go to the store. Id. at 188, 190. Love testified that when she first saw Appellant, she was not sure if he was a man or a woman and, on her way back from the store, she asked Smith, who stated that Appellant was a man. Id. at 19092. Love testified that after she and Monaey returned to Candy Coleman's house, they "sat around for awhile [] until [Smith] came in the house." Id. at 194. Love stated that Appellant was standing outside Coleman's home

and looking in the window when Smith informed her that Appellant "is the guy that tried to set [him] up." Id. at 195. Love interpreted Appellant's

comment as indicating that Smith was trying to hurt Appellant. Id. at 196. Love asked Smith why he was spending time with Appellant, but Smith did not answer. Id. After this conversation, Smith went back outside. Id. at 197. Love testified that when Smith left, she went outside onto the porch of Candy Coleman's home and could see Smith sitting "[o]n the steps of the house next door." Id. at 197. Love also observed Appellant standing at the curb in front of the house where Smith was sitting. Id. at 197-198. Love testified that she heard Appellant call Smith's name, and then saw Appellant shoot Smith with a black gun. Id. at 198-199, 201. Love stated that

Appellant then put the hood of his sweatshirt over his head and ran down Sixth Street and through an alley at the end of the street. Id. at 200-201,

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203.

After the shooting, Love was interviewed by police and identified

Appellant as the shooter from a photographic array. Id. at 207. The Commonwealth next called Samuel and Sharon Harris to the stand.3 First, Mrs. Harris testified that she and her husband were living on Id. at 322-323. That

Sixth Street in McKeesport on November 2, 2009.

day, Mr. Harris was driving the couple home from a shopping trip when, as they neared their home, Mrs. Harris looked to her right and "saw somebody flying up the alley." Id. at 323. As the man ran towards their car, Mrs. Id. Mrs.

Harris told her husband to stop so he would not hit the man.

Harris further explained that the man ran "[r]ight to the side of [their] car" on the passenger's side, and she yelled at him, asking "what was wrong with him, was he trying to get his self [sic] killed or what?" Id. at 327. At that point, the man "bent down to the ground," "reach[ed] under [her] car for something," and picked up something that he put in his pocket. Id. at 327. Then, the man "started running up the hill," lost his shoe, came back to put his shoe back on, and continued running up the hill. Id. at 328. When

asked to describe the man's appearance, Mrs. Harris stated that he was a "light-skinned" black man wearing a "black hoody" with a white t-shirt on

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Prior to Mr. and Mrs. Harris' testifying, Appellant orally moved for the suppression of their anticipated in-court identifications of him. The basis for that motion is discussed in depth, infra. After conducting a hearing on Appellant's motion, the court denied it.

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underneath. Id. at 326. She also stated that he had braids in his hair and "looked like a young female." Id. at 326-327. Mrs. Harris continued her testimony, explaining that shortly after the encounter with the man, she and Mr. Harris arrived home and heard that Smith had been shot. During an interview with police that same day, Mrs. Harris was shown a photographic array, but she was unable to identify the man who ran in front of her vehicle. Id. at 331. She testified, however,

that she told police that she would recognize the person if she saw him faceto-face. Id. at 332. Mrs. Harris then made an in-court identification of

Appellant as the person who ran in front of her vehicle on the day Smith was shot. Id. at 328. Next, Mr. Harris testified, telling a similar story about nearly hitting a man who ran from an alleyway and in front of his car. Id. at 359-360. Mr. Harris specified that the alleyway from where the man came was called Enterprise Way. Id. at 361. Mr. Harris stated that the man was young, had braided hair, and was wearing a black hooded sweatshirt with a white t-shirt underneath. Id. at 360. face during the incident. He further testified that he looked at the man's Id. at 362. Mr. Harris then made an in-court Id. at 362.

identification of Appellant as the man that he saw that day.

When asked if he had been able to identify Appellant on the day of the shooting from a photographic array, Mr. Harris stated that he believed that he did choose a picture from that array. Id. at 366. However, other

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evidence presented at trial indicated that the person identified by Mr. Harris in the array was not Appellant. Next, Coleman. the Commonwealth presented the testimony of Monaey

Coleman stated that she saw Appellant with Smith on the day

that Smith was killed. Id. at 384. Coleman testified that she and Love were inside her home and looking out the front window when she heard gunfire, but Coleman claimed that she did not see Smith get shot or observe anyone shooting at him. Id. at 381, 386-387, 392, 393-394. However, when police asked Coleman to identify from a photographic array the man whom she believed killed Smith, Coleman chose Appellant's picture. Id. at 384. The Commonwealth next presented the testimony of Detective Thomas DeFelice of the Allegheny County Police Department. Detective DeFelice

stated that there were no casings found at the scene of Smith's murder, which indicated to him that a revolver had been used to shoot Smith, as revolvers do not eject casings when fired. Id. at 401-402. Additionally, the Commonwealth called Michelle Kuehner, a scientist with the firearms section of the Allegheny County Medical Examiner's Office. Ms. Kuehner, an expert in the field of firearms and ballistics evidence, stated that she examined the .38 caliber revolver recovered from the alleyway near the scene of Smith's murder, as well as a bullet recovered from Smith's body during his autopsy. Id. at 474- 475. While Ms. Kuehner could not definitively state that the

bullet came from the .38 caliber revolver, she opined that the bullet was consistent with having been fired from that type of gun. Id. at 496. -7-

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At the close of Appellant's trial, the jury returned a verdict of guilty for the offenses of first-degree murder and carrying a firearm without a license. Appellant was sentenced on July 14, 2011, to a term of life imprisonment without the possibility of parole for his murder conviction, with no further penalty for his firearm offense. He filed a timely post-sentence motion

challenging the weight of the evidence to sustain his convictions. After the court denied that motion, Appellant filed a timely notice of appeal, as well as a timely concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Herein, he raises the following two issues for our review: I. [Did] the Commonwealth fail to establish by clear and convincing evidence that the witnesses' in-court identifications have an independent origin in the witnesses observations at the time of the crime, over a year earlier, when the witnesses only saw the person running from the scene briefly and they never identified [] Appellant until they saw him on the day of trial in handcuffs and shackles being led into the courtroom by a deputy? Did the trial court abuse its discretion by finding that the verdict was not against the weight of the evidence when the only witness to testify that she saw the shooting had a history of dishonesty, she had a motive to testify against [] Appellant, and her testimony that she saw the shooting was physically impossible?

II.

Appellant's Brief at 5. In his first issue, Appellant contends that Mr. and Mrs. Harris' in-court identifications of him should have been suppressed. Appellant's argument

centers on the fact that during the course of his trial, Mr. and Mrs. Harris were sitting in the hallway outside the courtroom when they observed

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Appellant in shackles and handcuffs being led by a deputy sheriff, and recognized him as the man they saw running in front of their vehicle. Appellant argues that this incident amounted to an unduly suggestive identification that tainted the reliability of the Harrises' in-court

identifications of him, requiring the Commonwealth to demonstrate that Mr. and Mrs. Harris had an independent basis for their in-court identifications. He avers that the Commonwealth failed to meet this burden and, thus, the court should have granted his motion to suppress. We begin by noting our standard of review of Appellant's claim: 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 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. Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa. Super. 2011) (citation omitted). Additionally, this Court has declared that "[a]fter a suggestive pre-trial identification, a witness will not be permitted to make an in-court identification unless the Commonwealth establishes by clear and convincing evidence that the in-court identification has an independent origin in the

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witness' observations at the time of the crime and was not induced by events occurring between the time of the crime and the in-court

identification."

Commonwealth v. Lavelle, 419 A.2d 1269, 1271In determining whether a

1272 (Pa. Super. 1980) (citations omitted).

witness had an independent basis for an in-court identification, we assess the following factors: [T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Commonwealth v. James, 486 A.2d 376, 380 (Pa. 1985) (citations omitted). Ultimately, "[i]n reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable." Commonwealth v. Moye, 836 A.2d 973,

976 (Pa. Super. 2003) (citation omitted). Instantly, before assessing whether the Commonwealth established an independent basis for the contested in-court identifications, we note that it is questionable whether the hallway encounter was unduly suggestive. At the hearing on Appellant's motion to suppress, Mr. Harris testified that he did not realize that Appellant was the defendant in this case when he saw him outside the courtroom. N.T. Trial, at 293. Mr. Harris explained that he

simply noticed Appellant and recognized his face as looking like the man he almost hit with his car. Id. at 297. Mr. Harris claimed that when he

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recognized Appellant, he turned to his wife who was sitting beside him and told her that he thought Appellant was the man who ran in front of their vehicle. Id. at 297. Mrs. Harris, however, did not recall her husband

identifying Appellant to her. Id. at 308. Instead, she testified that she saw "several people" walking in the hallway in shackles, but noticed Appellant because he was "feminine looking," and she recognized him as the person who ran in front of her vehicle. Id. at 305-306. Mrs. Harris testified that when she recognized Appellant, she did not know that he was the defendant in the case in which she was called to testify. Id. at 305. Based on the circumstances of the Harrises' hallway encounter with Appellant, we are not convinced that it was so suggestive as to necessitate an independent basis for their in-court identifications. Nevertheless, even if it were, the Commonwealth adequately demonstrated that Mr. and Mrs. Harris identified Appellant based on their encounter with him on the day of Smith's murder. At the suppression hearing, Mr. Harris testified that

Appellant was approximately seven to eight feet away from him when he ran in front of the Harris' vehicle, and stated that he got a good look at Appellant's face. Id. at 279. He described what Appellant was wearing,

and indicated that Appellant was "sort of childish" looking. Id. at 280. Mr. Harris further testified that while the encounter only lasted a few moments, during that time, Appellant was facing "[d]irectly at [him]." Id. at 280. Additionally, Mrs. Harris testified similarly to her husband regarding the circumstances of Appellant's running in front of their vehicle, and - 11 -

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provided a similar description of Appellant's clothing.

Id. at 302-303.

Furthermore, Mrs. Harris stated that she got a good look at Appellant's face, which she described "girlish-looking." Id. at 303. She explained that she told police on the day of the shooting that she could identify Appellant again if she saw him in person because "he was right there in my face at the time. He scared me because he ran right into the car." Id. at 304. In regard to the photographic array presented to her on the day of the incident, Mrs. Harris testified that she did not identify anyone because she "wasn't quite positive" that she saw the person who ran in front of their vehicle. Id. After receiving this testimony, the trial court concluded that the Harrises' initial encounter with Appellant provided a sufficient independent basis for their in-court identifications, despite the ostensibly suggestive confrontation with Appellant in the courtroom hallway. court sated: [The Court]: I was impressed by Mr. Harris and [Mrs.] Harris' testimony because it was such a traumatic experience that someone runs in front of your car and [Mrs.] Harris says stop and Mr. Harris goes on to say eight feet ... in terms of looking at this person's face and I got the impression that it startled him so much that it made an impression on him. That is a pivotal point for me in terms of the

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