Com. v. Connelly, S. ( 2023 )

J-S08028-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN NASIM CONNELLY :
:
Appellant : No. 1004 MDA 2022
Appeal from the Judgment of Sentence Entered May 13, 2022
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0005480-2019
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 16, 2023
Shawn Nasim Connelly (Appellant) appeals from the judgment of
sentence of life imprisonment without parole imposed in the Lancaster County
Court of Common Pleas, following his jury conviction of, inter alia, first-degree
murder and attempted murder1 for a June 2019 double shooting. On appeal,
Appellant argues the trial court erred in denying his pretrial motion to suppress
his identification by the surviving victim and challenges the sufficiency and
weight of the evidence presented at trial identifying him as the shooter. For
the reasons below, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S. §§ 2501(a)(1) and 901(a), respectively.
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The facts underlying Appellant’s identification as a suspect and his
subsequent conviction were summarized by the trial court as follows:
In the early morning hours of June 16, 2019, . . . the
Lancaster City Bureau of Police (“LCBP”) responded to a call in the
area of the 600 block of Lafayette Steet, Lancaster, reporting a
shooting. Upon arrival[,] officers found victim Anthony Marshall
with a gunshot wound through his left chest area, with an exit
wound in his back, and victim Tyquane Christian with a gunshot
wound in his right arm; police determined that Mr. Marshall was
Mr. Christian’s father. Shortly after arrival at Lancaster General
Hospital (“LGH”), Mr. Marshall died from his wounds.
Through their investigation LCPB Officers and Detectives
learned that the altercation resulting in the death of Mr. Marshall
and injuries to Mr. Christian began earlier in the night at [a] house
party at 610 Lafayette Street, Lancaster, when Mr. Marshall and
Mr. Christian attempted to intervene in a fight happening outside
the residence between Josean Maldonado and a then unidentified
man. Mr. Maldonado broke free and ran away from the home. At
the same time, recovered surveillance videos showed Mr. Marshall
and Mr. Christian departing 610 Lafayette Street when they were
quickly approached by four men, one of whom pulled a firearm
from the waist band of his pants. The shooter fired five shots in
the direction of the victims, striking both, as well as [a] residence
. . . and a 2000 Honda Accord.
On June 18, 2019, Officers [Adam] Flurry, [James] Boas,
and [Jason] Hagy of LCBP reviewed the surveillance videos.[2] All
three officers were familiar with and positively identified the
shooter as Appellant[;] all three officers also positively identified
the other three individuals with Appellant at the time of the
shooting as Naheem Gorham, Kristen Hodge-Majette, and a
juvenile, R.H.
[Shortly after the shooting, then Detective, now Sergeant,
Todd Grager spoke with Mr. Maldonado’s parents who claimed
they had “information on who shot” Mr. Christian. See N.T. Trial,
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2 Officers Flurry, Boas, and Hagy were members of the Selective Enforcement
Unit, which is the “drug and vice unit” in the department. N.T. Suppression
H’rg, 12/20/21, at 49.
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2/7/22, at 212-13. Sergeant Grager asked them to forward the
information to him in an email, which they did. See id. The email
contained a photograph of several males with “one male in
particular . . . circled in red[.]” Id. at 214. Sergeant Grager later
identified that male as Appellant. Id.]
[The night of the shooting, after] Mr. Christian was
stabilized and brought to a private room at LGH, . . . Sergeant[ ]
Grager asked [him] if he knew who shot him, but [Mr. Christian]
was unable to supply any details aside from the fact that four black
men approached [him] and his father, and one of the men shot
them.
After his release from the hospital then Detective, now
Sergeant [Eric] McCrady and Detective [Thomas] Ginder from
LCBP met Mr. Christian [a second time] at his mother’s home
where he was recovering from his injuries on June 21, 2019.
During that meeting, detectives presented Mr. Christian with three
photographic arrays, asking if there was anyone in the
photographs he remembered being present the night of the
shooting. Mr. Christian identified Naheem Gorham and Kristen
Hodge-Majette as being present at the shooting and Appellant as
being the other party in the fight with Mr. Maldonado; Mr.
Christian did not identify Appellant as “Shawn Connelly,” but
instead used the nickname “Shiz.”[3]
On August 28, 2019, Mr. Christian met with Sergeants
Grager and McCrady [a third time] at the LCBP station for a
follow[-]up interview. At that time, Mr. Christian reiterated his
account of the events from June 15-16, 2019, identified [Gorham]
and . . . Hodge-Majette as being two of the four men present at
the shooting, and Appellant, Shiz, as being the other party
involved with the fight with Mr. Maldonado.
Following this meeting, Sergeant McCrady sought and
received approval from the Lancaster County District Attorney’s
Office to show Mr. Christian the surveillance videos recovered by
police. On August 30, 2019, Mr. Christian met with investigators
once more at the LCBP station with the purpose of watching the
surveillance videos, at which, after watching, Mr. Christian pointed
out the four men and identified each by name (or known
____________________________________________
3 Appellant’s nickname is spelled “Shizz” in the trial transcript. However, we
will use the same spelling as the trial court in its opinion.
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nickname). Mr. Christian was also able to positively identify the
shooter in the videos as Shiz, or [Appellant].
Trial Ct. Op., 10/28/22, at 1-4 (record citations omitted & paragraph break
added). Sergeant McCrady stated that Mr. Christian claimed he did not
“initially see [Appellant] because he was standing behind Mr. Gorham.” N.T.
Trial, 2/8/22, at 425; see also N.T. Suppression Hrg, 12/20/21, at 92-93,
125.
Appellant was subsequently arrested and charged with first-degree
murder, attempted murder, firearms not to be carried without a license, and
two counts of discharging a firearm into an occupied structure.4 On June 15,
2020, Appellant, then represented by the Office of the Public Defender, filed
an omnibus pretrial motion asserting, inter alia, his identification as a suspect
was “unreliable and unduly suggestive.” See Appellant’s Omnibus Pretrial
Motion, 6/15/20, at ¶ 191. It does not appear from the record that the trial
court ever ruled on this motion.
On April 22, 2021, Richard Coble, Esquire, entered his appearance as
privately retained counsel. Attorney Coble filed a (second) suppression
motion on November 18, 2021, asserting Mr. Christian’s identification of
Appellant as the shooter was unreliable and the result of unduly suggestive
and coercive police procedures. See Appellant’s Motion to Suppress,
11/18/21, at 4-6 (unpaginated). The trial court conducted a suppression
hearing on December 20, 2021, at which time both Sergeants Grager and
____________________________________________
4 See 18 Pa.C.S. §§ 6106(a) and 2707.1(a), respectively.
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McCrady testified. The Commonwealth also admitted into evidence the photo
arrays, from which Mr. Christian identified Appellant and his cohorts, as well
as the relevant surveillance video footage of the shooting. See N.T.,
Suppression Hrg, at 52-53, 84-99. At the conclusion of the hearing, the trial
court denied Appellant’s motion.
The case proceeded to a jury trial commencing on February 7, 2022.
On February 10th, the jury returned a verdict of guilty on all charges. See
N.T. Trial, 2/10/22, at 707-08. However, the court subsequently granted
Appellant’s motion for judgment notwithstanding the verdict on the firearms
non-licensure charge because the Commonwealth did not establish the “length
of the firearm” allegedly used in the shooting.5 See id. at 710-11. Appellant
proceeded to sentencing on May 13, 2022, at which time the court imposed a
mandatory term of life imprisonment for his conviction of first-degree murder,
a consecutive term of 9 to 20 years’ incarceration for attempted murder, and
two terms of 3½ to 7 years’ incarceration for discharging a firearm into an
occupied structure, imposed to run concurrently with each other but
consecutively to the first-degree murder sentence.
On May 23, 2022, Appellant filed a timely post-sentence motion,
challenging the weight and sufficiency of the evidence to support his
____________________________________________
5 See 18 Pa.C.S. § 6102 (defining a “firearm” as “[a]ny pistol or revolver with
a barrel length less than 15 inches [or] with an overall length of less than 26
inches”).
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conviction, and asserting a purported Brady6 violation and a violation of
Pennsylvania Rule of Criminal Procedure 645(C).7 The trial court denied the
motion on June 17, 2022, and this timely appeal followed.8
Appellant presents the following three issues for our review:9
I. Did the trial court err by failing to suppress [Appellant’s]
identification resulting from unduly suggestive police
procedures?
II. Did the Commonwealth present sufficient evidence to prove
[Appellant] was the perpetrator where the only evidence
linking him to the crime was witness identifications from
video, and the Commonwealth offered no corroboration or
reason why the witnesses were better suited to make the
identification than the jury?
III. Did the trial court commit reversible error by denying
[Appellant’s] post-sentence motion seeking a new trial
because the verdict was against the weight of the evidence?
Appellant’s Brief at 5.
In his first issue, Appellant insists the trial court erred when it denied
his motion to suppress his pretrial identification as the shooter. His argument
is two-fold. First, he maintains the “photo array identification procedure . . .
____________________________________________
6 See Brady v. Maryland, 373 U.S. 83 (1963).
7 Rule 645 outlines the process for seating an alternate juror. See
Pa.R.Crim.P. 645. Appellant does not raise either the Brady or Rule 645 claim
on appeal.
8 After requesting, and being granted, an extension of time, Appellant
complied with the trial court’s directive to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The trial court filed a responsive
Pa.R.A.P. 1925(a) opinion on October 28, 2022.
9 We have reordered Appellant’s claims for ease of disposition.
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was unduly suggestive because it was not administered in a double-blind
fashion.” Appellant’s Brief at 30. Second, he asserts the police “coax[ed] Mr.
Christian into identifying [Appellant] in the surveillance video by showing
[Appellant’s] photo to [him] several times before he made the identification.”
Id. at 33.
When considering a challenge to a trial court’s order denying a
suppression motion, “[o]ur standard of . . . is limited to determining whether
the factual findings are supported by the record and whether the legal
conclusions drawn from those facts are correct.” Commonwealth v. Jaynes,
135 A.3d 606, 610 (Pa. Super. 2016) (citation omitted). In making those
determinations,
[w]e 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 findings of the
suppression court, we are bound by those facts and may
reverse only if the court erred in reaching its legal
conclusions based upon the facts.
Moreover, it is within the lower court’s province to pass on the
credibility of witnesses and determine the weight to be given to
their testimony.
Id. (citations omitted).
Furthermore, we emphasize:
Whether an out of court identification is to be suppressed as
unreliable, and therefore violative of due process, is determined
from the totality of the circumstances. 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. Identification evidence will not be
suppressed unless the facts demonstrate that the
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identification procedure was so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable
misidentification. Photographs used in line-ups are not unduly
suggestive if the suspect’s picture does not stand out more than
the others, and the people depicted all exhibit similar facial
characteristics.
Commonwealth v. Mbewe, 203 A.3d 983, 986–87 (Pa. Super. 2019)
(citations & quotation marks omitted; emphasis added).
First, Appellant insists that the photo array procedure was suggestive
because it was not administered in a double-blind fashion, that is “the array’s
administrator [Sergeant Grager] knew who the suspect was.” Appellant’s
Brief at 30. He emphasizes that “[s]everal states now have laws requiring
double-blind administration” and that “voluminous independent research
shows that [an] identification procedure, which was not double-blind, is
inherently and unduly suggestive.” Id. at 31, 32.
Upon our review of the record, we conclude this particular argument is
waived. Although the preference for “blind or blinded photo arrays” was
referenced in the first suppression motion filed by former counsel in June of
202010 ─ a motion that was never ruled upon ─ it was not raised in the second
suppression motion filed by present counsel in November of 2021. Moreover,
at the suppression hearing, Appellant’s counsel did not ask Sergeant McCrady
any questions regarding his composition of Appellant’s photo array or highlight
any purported suggestive techniques employed by the sergeant in compiling
____________________________________________
10 See Appellant’s Omnibus Pre-trial Motion, 6/15/20, at ¶ 209 (noting federal
investigators are “encourage[d]” to employ “blind” photo arrays).
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the array. See N.T., Suppression Hrg, at 100-32, 135-38. Furthermore,
counsel’s argument at the conclusion of the hearing did not address any
purported suggestiveness in the photo array compilation, but rather focused
on the fact that Mr. Christian identified Appellant as the shooter in the
surveillance video only after having failed to identify him when presented with
his photo array on two prior occasions. See id. at 140-44. Counsel neither
advocated for a “double-blind” photo array procedure, nor presented any of
the purported “voluminous” research studies on the topic. See Appellant’s
Brief at 32. Thus, Appellant’s contention that the photo array should have
been administered “double blind” is waived. See Pa.R.A.P. 302(a) (“Issues
not raised in the trial court are waived and cannot be raised for the first time
on appeal.”).
Moreover, even if we did not find this claim waived, Appellant would be
entitled to no relief. As this Court explained in Mbewe, “[s]uggestiveness in
the identification process . . . alone does not warrant exclusion . . . unless the
facts demonstrate that the identification procedure was so impermissibly
suggestive as to give rise to a very substantial likelihood of irreparable
misidentification.” Mbewe, 203 A.3d at 986 (citations & quotation marks
omitted). Here, Appellant has failed to demonstrate how the procedure used
by Sergeant McCrady to compile the photo array and present it to Mr. Christian
gave “rise to a very substantial likelihood of irreparable misidentification.”
See id.-9-
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Appellant’s second suppression argument focuses on the fact that
Detective McCrady showed Appellant’s photo to Mr. Christian on two different
occasions before Mr. Christian identified Appellant as the shooter in the
surveillance video. See Appellant’s Brief at 34. Relying on a decision of the
Supreme Court of New Jersey and two mugshot identification studies,
Appellant asserts “[i]dentification procedures involving more than one viewing
of the same suspect can create a risk of mugshot exposure and mugshot
commitment” which may then affect the reliability of a subsequent
identification. See id. at 33-34, citing State v. Henderson, 27 A.3d 872(N.J. 2011). Appellant, however, fails to cite any precedential authority to
support his claim. Rather, he simply asserts that “[b]y repeatedly showing
Mr. Christian photo arrays that included [Appellant], the police non-verbally
communicated that they were not satisfied with his previous identifications.”
Appellant’s Brief at 35.
The trial court addressed Appellant’s suppression challenge as follows:
Appellant argues that the tactics used by LCBP’s officers were so
unduly suggestive that it led to an unreliable identification of
Appellant by Mr. Christian[.] Appellant is mistaken. At the
suppression hearing, Sergeants Grager and Mc[C]rady clearly
detailed each interview with Mr. Christian, and no evidence
presented supports a finding that any of the four instances where
Mr. Christian interacted with police gave rise to a substantial
likelihood of irreparable misidentification. [W]e know that
Appellant’s main concern with the identification process is that Mr.
Christian did not identify Appellant as the shooter, or as being
present at the shooting, until he viewed the surveillance videos on
August 30, 2019, during his fourth interview with police.
In his motion to suppress, Appellant states LCBP took
advantage of Mr. Christian as an interested party in the case and
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“pressured him through numerous and repetitive interviews in an
attempt to compel an identification” of Appellant as the shooter.
At no point during the suppression hearing was testimony elicited
that would suggest pressure or force was used. In fact, the
witnesses testified multiple times that Mr. Christian was very
cooperative and was willing to help police in any way he could.
Moreover, as acknowledged multiple times during the hearing,
there was a lapse of more than two months between Mr.
Christian’s second and third interviews, which does not suggest to
this court that the interviews were n[u]merous or repetitive or
that Mr. Christian felt any pres[s]ure to interact with police at all.
There is no evidence of record showing Mr. Christian was
compelled to identify the shooter. During the three interviews
following his release from the hospital, Mr. Christian identified
Appellant[ ] as being present the night of the shooting each time.
Appellant implies that because [Mr. Christian] did not conclusively
state Appellant was the shooter until he saw the surveillance
videos his identification [was] unreliable. However, “[i]nitial
equivocation does not render later identifications constitutionally
unreliable per se.” Mr. Christian stalwartly identified Appellant as
being present the evening of June 15-16, 2019, even though he
was not initially sure of the identity of the shooter. The
explanation for Mr. Christian believing another suspect could have
been the shooter was simply that Mr. [Gorham] was the man
closest to him when the shooting occurred, and Appellant was
standing directly behind Mr. [Gorham], which allowed Mr.
Christian to initially believe the shooter was Mr. [Gorham].
Assuming, arguendo, there was suggestiveness in the
identification process, nothing of record gives rise to the level that
there was a very substantial likelihood of irreparable
misidentification.
. . . In viewing the totality of the circumstances surrounding the
identification process of Appellant by Mr. Christian, this court
found both witnesses and their testimony to be credible, and found
it more likely than not that the identification process was not
unduly suggestive. Appellant’s claim of unduly suggestive tactics
by police resulting in an unreliable identification by Mr. Christian
of Appellant as [the] shooter is without merit.
Trial Ct. Op. at 8-10.
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We detect no error of law or abuse of discretion in the trial court’s ruling.
As the court explains, there was no evidence to suggest the officers coaxed or
coerced Mr. Christian into identifying Appellant as the shooter. Although the
officers met with Mr. Christian four times, the first time was immediately after
the shooting while Mr. Christian was still in the hospital. See N.T.,
Suppression Hrg, at 7-12. While he provided a timeline of the events leading
to the shooting, Mr. Christian was unable to identify any of those involved.
See id. at 17-22, 32.
Approximately a week later, after Mr. Christian was released from the
hospital, Sergeant McCrady and Detective Ginder met with him at his mother’s
residence and, for the first time, showed him the photo arrays. See N.T.,
Suppression Hrg, at 56-57, 59. The officers asked Mr. Christian “if he noticed
anyone within . . . the photographic array[s] that was there the night of the
shooting.” Id. at 59. They also directed him not to “guess” and stated, “if
you don’t know, you don’t know.” Id. Appellant identified both Mr. Gorham
and Mr. Hodge-Majette as being present when he and his father were shot.
See id. at 60, 64-65. He also positively identified Appellant as the “subject
that was in the altercation with [Mr.] Maldanado at 610 Lafayette Street.” Id.
at 66. Sergeant McCrady described Mr. Christian as “very cooperative.” Id.
at 69.
Sergeant McCrady met with Mr. Christian for a “follow-up interview” on
August 28, 2019. See N.T., Suppression Hrg, at 72. He explained that the
two-month delay was due to the fact that Mr. Christian’s “recovery took longer
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than usual” and “scheduling was an issue[,]” but that Mr. Christian “voluntarily
[came] to the station[.]” Id. at 72-73. Mr. Christian provided the same
account of the events which had occurred on the night of the shooting,
including the fact that Appellant was the person in an altercation with
Maldonado, and once again, positively identified Appellant in the photo array.
See id. at 74-75, 78.
Sergeant McCrady then obtained permission from the Lancaster County
District Attorney’s Office to show Mr. Christian the video surveillance footage
of the shooting. See N.T., Suppression Hrg, at 81. He “invite[d]” Mr.
Christian to come back to the station, and Mr. Christian did so “voluntarily[.]”
Id. at 82. Upon witnessing the shooting on the video, Mr. Christian identified
Appellant (Shiz) as the shooter. Id. at 89. Sergeant McCrady described Mr.
Christian as “visibly upset” because “he thought someone else had shot
him[.]” Id. at 88-89. Mr. Christian explained that “it happened so quickly” it
was not until “he was able to see the video and see it play out” that he was
able to identify Appellant as the shooter. Id. at 90. Sergeant McCrady also
pointed out that Appellant was standing “directly behind” Mr. Gorham on the
video. Id. at 92.
Accordingly, our review of the testimony and evidence presented during
the suppression hearing supports the court’s ruling. There is simply nothing
in the identification procedure to support Appellant’s allegation that Mr.
Christian’s identification of him was the result of suggestive police practices.
Furthermore, the non-binding New Jersey decision upon which Appellant relies
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is distinguishable. In Henderson, the Supreme Court of New Jersey crafted
a new procedure for assessing eyewitness identification based on a significant
amount of scientific evidence produced at a prior trial court hearing. See
Henderson, 27 A.3d at 877-78. Further, in that case, the eyewitness testified
that he felt as though the police were “‘nudging’ him to choose [the]
defendant’s photo, and ‘that there was pressure’ to make a choice.” Id. at
881. Here, Appellant presented no evidence suggesting the officers pressured
Mr. Christian into making an identification, nor did Appellant present any
scientific evidence challenging the identification procedure used by the
officers. Thus, Appellant’s first claim fails.
Next, Appellant challenges the sufficiency of the evidence identifying
him as the shooter. See Appellant’s Brief at 17. He emphasizes that his
identification was based solely on Detective Flurry’s and Mr. Christian’s review
of the surveillance video. Id. Appellant maintains that while this Court has
not directly considered how video identification evidence can support a
conviction, it has “broadly presented its view that witnesses may properly
narrate a video, but . . . may not necessarily identify someone depicted in
the video.” Id. at 17, 20, citing Commonwealth v. Childs, 63 A.3d 323 (Pa.
Super. 2013); Commonwealth v. Brown, 134 A.3d 1097 (Pa. Super. 2016);
Commonwealth v. Palmer, 192 A.3d 85 (Pa. Super. 2018). Rather, he
requests that this Court craft a rule ─ adopted by several federal circuit courts
─ that a conviction may not rest solely “on a witness’s ability to identify a
suspect from a video unless (1) there is substantial corroboration and (2) the
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witness’s familiarity with characteristics of the defendant are not immediately
observable by the jury at trial[,]” such as when the defendant has changed
his appearance. Id. at 24.
Appellant insists that neither Mr. Christian or Detective Flurry were
“particularly familiar” with him, “nor did the Commonwealth have any relevant
corroboration.” Appellant’s Brief at 24. Moreover, he emphasizes that his
name “first surfaced in the investigation when [the Maldonados emailed
investigators that they] ‘had heard things on the street.’” Id. at 25. Thus,
he maintains:
Both the Special Enforcement Unit and Mr. Christian were
especially likely to have encountered rumor and innuendo,
perhaps even unwittingly. And that is a critical factor in
misidentifications based on confirmatory feedback and
confirmation bias.
Id. Appellant cites to several studies in support of his claim that witnesses’
memories are easily tainted when they receive positive “feedback confirming
the ‘accuracy’ of the witnesses’ identification[.]” See id. at 25-28. He
summarizes:
Absent meaningful corroboration, this Court should hold that the
Commonwealth did not present sufficient evidence to support
[his] convictions because the only identification evidence was
made solely through video that the factfinder could review and
draw its own conclusions without the aid of witnesses.
Id. at 17. We conclude no relief is due.
Our review of a challenge to the sufficiency of the evidence is well-
settled:
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The standard we apply . . . is whether viewing all the evidence
admitted at trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to find every
element of the crime beyond a reasonable doubt. In applying [the
above] test, we may not weigh the evidence and substitute our
judgment for a fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt by
means of wholly circumstantial evidence. Moreover, in applying
the above test, the entire record must be evaluated and all
evidence received must be considered. Finally, the [trier] of
fact[,] while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part or none
of the evidence.
Commonwealth v. Williams, 255 A.3d 565, 578–79 (Pa. Super. 2021)
(citation omitted). Moreover:
[E]vidence of identification need not be positive and certain to
sustain a conviction. Although common items of clothing and
general physical characteristics are usually insufficient to support
a conviction, such evidence can be considered to establish identity
in conjunction with other circumstances and identification
testimony.
Id. at 579 (citations omitted).
Here, Appellant’s claim focuses less on whether the Commonwealth
actually proved he was guilty of the crimes charged, including first-degree
murder,11 and more on the alleged impropriety of permitting two witnesses to
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11 “In the case of first-degree murder, a person is guilty when the
Commonwealth proves that: (1) a human being was unlawfully killed; (2) the
person accused is responsible for the killing; and (3) the accused acted with
(Footnote Continued Next Page)
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identify him via surveillance video footage. Thus, his argument appears to
challenge the court’s admission of the eyewitness testimony evidence ─ an
issue he did not raise in his court-order Pa.R.A.P. 1925(b) statement12 ─
rather than sufficiency thereof. We conclude he is entitled to no relief.
Appellant first argues that “[i]n a trio of cases, this Court offered broad
guidance on using surveillance video in criminal prosecutions[,]” and insists
that while we generally permit witnesses to narrate a video, we do not
“necessarily” allow a witness to “identify someone depicted in the video.” See
Appellant’s Brief at 18, 20. The cases upon which Appellant relies do not
support his claims.
With regard to Childs, Appellant implies that this Court permitted
witness testimony identifying the defendant on surveillance video only
because there was corroborating evidence. See Appellant’s Brief at 18. In
that case, the victim identified the defendant on “dark surveillance video” as
the person who broke into her home; moreover, the defendant’s palm prints
were recovered on an open window and one of the victim’s stolen items was
pawned by the defendant’s girlfriend. See Childs, 63 A.3d at 327. The
____________________________________________
specific intent to kill. Commonwealth v. Clemons, 200 A.3d 441, 462 (Pa.
2019) (citations omitted); see also 18 Pa.C.S. § 2502(a).
12 See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or
not raised in accordance with the provisions of this paragraph (b)(4) are
waived.”).
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defendant argued that his conviction was against the weight of the evidence
because the “facts linking him to the crimes [were] too tenuous[.]” Id. This
Court rejected the defendant’s weight claim, noting the trial “court was
shown the surveillance video that served to identify [the defendant] and was
able to draw its own conclusions.” Id.
Childs provides no relief for Appellant. The Childs Court did not
require the Commonwealth to provide corroborating physical evidence in
order to permit an eyewitness identification from surveillance video, nor did it
consider whether the identification evidence was sufficient to support the
verdict. Rather, the Childs Court reviewed the weight of the evidence.
Moreover, here, like in Childs, both the trial court and the jury viewed the
relevant surveillance video and were able to draw their own conclusions
regarding the witnesses’ identifications.
In Brown, the defendant was charged with first-degree murder
following a shooting. See Brown, 134 A.3d at 1101. Although two witnesses
initially identified the defendant as the person who shot the victim, they later
recanted, and the Commonwealth was forced to introduce their “initial
accounts of the shooting as prior inconsistent statements.” Id. at 1101-02.
Relevant herein, the Commonwealth also introduced surveillance video that
was played for the jury, and the trial court permitted a police detective to
“give limited testimony to direct the jury’s attention to specific images
depicted in the video.” See id. at 1105-06. As Appellant points out, the trial
court in Brown, however, prohibited the detective “from speculating as to the
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identities of individuals seen in the footage, and instructed the jury that their
own observations controlled.” Id. at 1106. On appeal, the defendant
challenged the detective’s testimony as inadmissible lay witness opinion
testimony. See id. A panel of this Court found no error.
Here, Appellant has challenged the sufficiency of the evidence on
appeal, not the admissibility of the identification testimony. Moreover, the
Brown opinion provides no context as to why the trial court prohibited the
detective from identifying certain individuals in the video. See Brown, 134
A.3d at 1106. Perhaps the detective was not familiar with the individuals, or
had no basis upon which make the identification. The facts in the present
case are clearly distinguishable.
Similarly, in Palmer, the defendant challenged the admissibility of a
detective’s testimony, identifying individuals in a video, as improper lay
opinion testimony. See Palmer, 192 A.3d at 99. In that case, the video
surveillance footage of a shooting revealed “[a] man . . . extending his arm in
a position consistent with firing a gun” immediately before the driver of a car
passing by was struck by a bullet. See id. at 87. The defendant admitted he
was in the area of the shooting, and his DNA was recovered from the area
where fired cartridge casings were located. See id. at 100. The detective
“identified the shooter by finding and watching the video surveillance of the
shooting, then examining earlier portions of the video for other instances
where the suspect appeared.” Id. at 100-01. This Court held that the
detective’s testimony was properly admitted based on his perceptions of the
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video footage, and that the jury was “free to reach a different conclusion if it
disagreed with [the detective’s] conclusion that it was [the defendant]
depicted on the video at specific moments in the footage.” Id. at 101.
Again, here, Appellant challenges the sufficiency of the evidence, not
the admissibility of the witnesses’ identification testimony. Moreover, while
he emphasizes that there was corroboration evidence in Palmer ─ i.e., the
defendant’s DNA at the scene ─ the panel did not consider whether such
evidence is required in order to find an identification from a video to be
sufficient. Appellant’s attempt to grasp any language in these cases to support
his claim fails.
We also refuse Appellant’s invitation to adopt the holdings of several
federal circuit courts which, he asserts, require both “substantial
corroboration” and a witness’ “familiarity with the characteristics of the
defendant [which] are not immediately observable by the jury at trial.” 13 See
Appellant’s Brief at 24. He describes these circumstances as when the
defendant has changed his appearance, or when the quality of the video “is
such that a reasonable factfinder would need assistance[.]” Id. We conclude
these considerations are a proper consideration for a weight of the evidence
claim, not a sufficiency claim.
____________________________________________
13 It is well-settled that we are “not bound by decisions of federal courts
inferior to the United States Supreme Court[.]” Commonwealth v. Ragan,
743 A.2d 390, 396 (Pa. 1999).
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In the present case, Detective Flurry testified that when he and two
other members of the Selective Enforcement Team were asked to review the
surveillance video of the shooting, he was generally aware that there had been
a shooting but was not aware of any “persons of interest,” including Appellant.
See N.T. Trial, 2/9/22, at 529. Rather, Sergeant McCrady told them “he had
a couple of videos that he wanted us to look at to see if we could recognize
anybody that was in the videos.” Id. at 531. Detective Flurry testified that
he had “multiple observations and/or interactions” with Appellant from 2017
until the spring of 2019. Id. at 524. He stated that he was “[w]ithin arm’s
reach” of Appellant “[a]t least once[,]” and was “familiar with [Appellant’s]
physical features and characteristics as of June of 2019[.]” Id. at 525.
Although Appellant’s face was not clearly depicted on any of the surveillance
videos, Detective Flurry described in detail how he identified Appellant based
upon his body type, jaw line, complexion, hairline, and positioning of tattoos.
See id. at 538-46. He also explained that Appellant was known to “associate”
with two of the other men present at the shooting. See id. at 578. We
conclude that the detective’s familiarity with Appellant was sufficient to permit
him to identify Appellant on the surveillance video. Whether his identification
was credible was for the jury ─ who also viewed the surveillance video ─ to
decide. See Williams, 255 A.3d at 578-79.
Moreover, although Mr. Christian did not have any interaction with
Appellant prior to the night of the shooting, he positively identified Appellant
as the person who was in an altercation with Mr. Maldonado earlier that
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evening. According to Sergeant McCrady, when he showed Mr. Christian the
surveillance video, Mr. Christian “started to feel a little sick” because “he didn’t
know that [Appellant] was behind Mr. Gorham.” N.T. Jury Trial, 2/8/22, at
423, 425. However, he “[f]airly quickly, . . . maybe [within] a minute[,]”
identified Appellant as the shooter. Id. at 425.
Furthermore, at trial, Mr. Christian testified that he actually
remembered Appellant was the person who shot him “days after [he] had
been in the hospital[,]” but he “was just in too much shock” and not “in the
right state of mind” to identify him prior to viewing the video surveillance
footage. See id. at 370. To the extent that his testimony contradicted
Sergeant McCrady’s account, any inconsistencies was for the jury to weigh
and consider. See Williams, 255 A.3d at 578-79.
Lastly, we note that Appellant implies that prior to their identifications,
both Mr. Christian and Detective Flurry were aware of the circulating “rumor
and innuendo” that Appellant was the shooter. See Appellant’s Brief at 25.
He insists that this led to “confirmatory feedback” which made the witnesses
“more confident in the accuracy of [their] identification, even if [they] had
identified an innocent person.” Id. However, Appellant does not provide any
record citation to support this claim, and our review reveals there is simply no
evidence in the record that either Mr. Christian or Detective Flurry was aware
of the purported rumors surrounding Appellant prior to their identifications.
Thus, Appellant’s sufficiency claim fails.
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In his final issue, Appellant again challenges his identification as the
shooter ─ this time, in a weight of the evidence claim. He insists Mr.
Christian’s “unbelievable testimony . . . was repeatedly contradicted by other
Commonwealth witnesses[,]” and Detective Flurry’s “vague testimony”
identifying Appellant in the surveillance video “merited no weight.”
Appellant’s Brief at 36. Indeed, Appellant notes that Detective Flurry “gave
only general physical characteristics to establish the perpetrator’s identify”
and conceded he could not distinctly see the culprit’s face or tattoos. Id. at
39. Accordingly, he contends the trial court abused its discretion when it
denied his weight of the evidence claim. See id. at 40.
Preliminarily, we note Appellant properly preserved his weight claim in
a timely filed post-sentence motion. See Pa.R.Crim.P. 607(A)(1)-(3)
(challenge to weight of the evidence must be raised before trial court);
Appellant’s Post-Sentence Motion for New Trial, 5/23/22, at 7-11. Our review
is well-established:
A motion for a new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the discretion
of the trial court. A new trial should not be granted because of a
mere conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion. When a trial
court considers a motion for a new trial based upon a weight of
the evidence claim, the trial court may award relief only when the
jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.
The inquiry is not the same for an appellate court. Rather,
when an appellate court reviews a weight claim, the court is
reviewing the exercise of discretion by the trial court, not the
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underlying question of whether the verdict was against the weight
of the evidence. The appellate court reviews a weight claim using
an abuse of discretion standard.
Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citations &
quotation marks omitted; paragraph break added).
Here, the trial court considered and rejected Appellant’s contention that
his conviction was against the weight of the evidence. See Trial Ct Op. at 18.
The court opined that upon a “thorough review of the testimonial evidence, [it
could] find no issues concerning the credibility of the testimony given by any
witness, and specifically Mr. Christian and law enforcement officers.” Id.Further, the court stated Appellant “did not offer or elicit testimony
contradicting the testimony of” the Commonwealth’s witnesses. Id.Appellant first notes that Mr. Christian’s account of his and his father’s
activities prior to arriving at the house party differed from the account
provided by his father’s friend, who accompanied them for part of the evening.
See Appellant’s Brief at 37-38. These discrepancies concerning events prior
to the shooting, however, do not impact Mr. Christian’s identification of
Appellant.
Appellant also emphasizes that “Sergeant McCrady twice admitted that
Mr. Christian’s testimony differed from his statements to the police” ─
specifically, regarding the fact that he knew Appellant shot him before he
viewed the surveillance video footage, and his trial testimony that he did not
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identify Mr. Gorham and Mr. Hodge-Majette.14 See Appellant’s Brief at 38.
However, despite these inconsistencies, the trial court found “Mr. Christian’s
identification was not unreliable.” Trial Ct. Op. at 16. We detect no basis to
disagree. Regardless of whether the jury believed Mr. Christian knew who
shot him immediately after the incident and for some reason did not tell police,
or he did not initially notice Appellant standing behind Mr. Gorham until he
saw the surveillance footage, he positively identified Appellant as the shooter
─ as did Detective Flurry. Moreover, the jury (as well as the trial court) was
able to view the surveillance video and assess the reliability of both witnesses’
identifications. Although Detective Flurry candidly admitted that he identified
Appellant based on his physical characteristics, not facial recognition, again,
the jury was able to weigh that testimony in determining whether the
identification was credible. We agree with the trial court’s determination that
“none of the verdicts . . . shock a person’s sense of justice[,]” and, therefore,
Appellant’s challenge to the weight of the evidence fails. See id. at 19.
Judgment of sentence affirmed.
____________________________________________
14 During cross-examination, Mr. Christian was asked if he was “able to
identify the other two people from the photographic arrays in the video[,]” to
which he responded, “No.” N.T., 2/8/22, at 373. However, Sergeant McCrady
later testified that Mr. Christian was able to identify the other men involved
when he viewed the surveillance footage. See id. at 463. When Appellant’s
counsel’s pointed out the discrepancy, the officer responded, “I’m not sure if
he’s confused or what.” Id.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/16/2023
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