Opinion
J-A21023-19 No. 1474 EDA 2018
10-22-2019
COMMONWEALTH OF PENNSYLVANIA v. LENN T. TUCKER, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence November 9, 2017
In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003846-2016 BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E. MEMORANDUM BY OLSON, J.:
Appellant, Lenn T. Tucker, Jr., appeals from the judgment of sentence entered on November 9, 2017, following his jury trial convictions for first-degree murder, possession of an instrument of crime, persons not to possess firearms, and firearms not to be carried without a license. We affirm.
The facts of this case are as follows. On August 26, 2016, at approximately 6:04 A.M., the victim, Alex Hartzel, was shot and killed while walking down a back alley in Coatesville, Pennsylvania. Importantly, the murder was captured by a near-by surveillance camera, but the tape did not clearly show the identity of the individual who shot the victim. Trial Court Opinion, 9/14/18, at 3.
The evidence introduced at trial revealed that, earlier that morning, the victim and another individual named Samuel Grove bought drugs from Appellant. Id. at 4. The victim, however, was unhappy with the quality of drugs sold by Appellant and subsequently confronted him with a Swiss Army knife. Id. Thereafter, Appellant directed him down an alley known as Diamond Alley, the location of the murder. Id. Appellant then went to his car where he retrieved a firearm. Id. At that point, Appellant followed the victim down Diamond Alley and fatally shot him. Id. The surveillance video captures Appellant's vehicle in the area of the murder, both before and after the shooting. Id.
In the days following the murder, the police interviewed various individuals, including Grove. In fact, the police interviewed Grove on three separation occasions; first, on August 26, 2016, the day of the shooting (N.T. Pre-Trial Hearing, 5/15/17 (Volume I) at 52); second, on August 27, 2016, during which the police showed Grove two photos of Appellant ( id. at 54); and finally, on August 31, 2016, after Grove was arrested for an unrelated crime, the police provided him with a photo array, where he identified Appellant as the murderer ( id. at 58).
On September 9, 2016, the police interviewed Appellant. Trial Court Opinion, 9/14/18, at 4. During this interview, Appellant admitted being in the area and that, at the time of the murder, he was "walking down the alley behind the victim just before he was shot." Id. Appellant, however, maintained that others were also in the alley and that "he heard gunshots but did not see who fired the gun." Id. Video surveillance confirmed, however, that only Appellant and the victim were in the alley at the time of the shooting. Id.
Thereafter, on October 28, 2016, the Commonwealth filed a criminal information against Appellant. Bill of Information, 10/28/16, at 1-3. Before trial, the Commonwealth filed a motion in limine, seeking introduction of evidence that, prior to the murder, Appellant sold drugs to the victim. Commonwealth's Motion in Limine, 4/10/17, at 1-2. In addition, through counsel, Appellant filed a motion to suppress Grove's August 31, 2016 identification. Appellant's Motion to Suppress Evidence, 4/13/17, at 1-7. A hearing was held on May 15, 2017. N.T. Pre-Trial Hearing, 5/15/17 (Volume I), at 1-147. Ultimately, the trial court granted the Commonwealth's motion in limine, but denied Appellant's motion to suppress. Trial Court's Order, 6/19/17, at 1.
Appellant's jury trial commenced on July 24, 2017. During trial, the Commonwealth presented multiple identifications of Appellant during Grove's testimony. First, Grove testified that he and the victim bought drugs from Appellant on the morning of the murder. N.T. Trial, 7/27/17 (Volume I), at 120-121. Then, Grove made an in-court identification of Appellant. Id. Grove also testified that, on August 31, 2016, he made an out-of-court identification of Appellant in a photo array. Id. at 155-164. On July 27, 2017, Appellant was found guilty of first-degree murder, possession of an instrument of crime, persons not to possess firearms, and firearms not to be carried without a license. Trial Court Opinion, 9/14/18, at 1. On November 9, 2017, Appellant was sentenced to life imprisonment without the possibility of parole for the first-degree murder conviction, with an additional one to two years' imprisonment for the additional crimes. Id. This timely appeal followed.
Appellant filed a notice of appeal on December 5, 2017. On December 6, 2017, the trial court filed an order directing Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b)(1). After securing an extension from the trial court, Appellant timely complied. The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on September 14, 2018.
Appellant presents the following issues on appeal:
I. Did the [t]rial [c]ourt commit legal error in permitting [the] introduction of identification evidence against Appellant?Appellant's Brief at 5.
II. Did the [t]rial [c]ourt abuse its discretion in granting the Commonwealth's [m]otion in [l]imine allowing evidence of Appellant's prior bad acts to be admitted at trial?
III. Was the jury's finding that Appellant was guilty of [first-degree murder] in opposition of sufficient evidence presented during trial?
In Appellant's first issue, he contends that the trial court erred in denying his motion to suppress Grove's identification testimony. Appellant's Brief at 23. Appellant argues that the "photographic identification process utilized by the police was highly suggestive and unreliable" and that the Commonwealth failed to establish an "independent basis for the subsequent in-court identification." Id. at 23-24. We disagree.
Appellant did not raise an objection to the introduction of the identification evidence by the Commonwealth during trial. This Court, however, has previously held that an "[a]ppellant need not object to the introduction of evidence at trial in order to preserve a suppression issue for appellate review." Commonwealth v. Maxwell , 512 A.2d 679, 681 (Pa. Super. 1986); see also Commonwealth v. Burchard , 503 A.2d 936 (Pa. Super. 1986) (en banc).
We review the denial of a motion to suppress as follows:
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 court, we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains un[-]contradicted 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. Wells , 916 A.2d 1192, 1194-1195 (Pa. Super. 2007) (parallel citations omitted).
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, [] 891 A.2d 730 (Pa. 2005).
"Our scope of review is limited to the record developed at the suppression hearing, considering the evidence presented by the Commonwealth as the prevailing party and any un[-]contradicted evidence presented by [the defendant]." Commonwealth v. Fulton , 179 A.3d 475, 487 (Pa. 2018).
"In 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), appeal denied, 851 A.2d 142 (Pa. 2004). Notably, a photo array is subject to attack as suggestive "if the police display to the witness only the picture of a single individual" or "if they show him the pictures of several persons among which the photograph of a single [] individual recurs or is in some way emphasized." Simmons v. United States , 390 U.S. 377, 383 (1968).
In this case, we agree that, under the totality of the circumstances, the police used a suggestive photo array in securing Grove's initial identification on August 31, 2016. See Trial Court Opinion, 6/19/16, at 2. As stated above, the police interviewed Grove on three separate occasions in a five-day span. First, on August 26, 2016, following the murder, the police interviewed Grove but did not show him any photos, and Grove made no identification of Appellant. N.T. Pre Trial Hearing, 5/15/17 (Volume I), at 52. Then, on August 27, 2016, Corporal Shannon Miller spoke with Grove in an undercover vehicle. Id. at 54. During this interaction, Corporal Miller initially showed Grove two photographs of Appellant and then showed him two photos of another individual. Id. Subsequently, on August 31, 2016, the police presented Grove with a photo array that included photographs of several individuals together with a picture of Appellant. Id. at 58. It was on this occasion that Grove identified Appellant. Id. Because the police originally showed Grove a picture of Appellant as a single individual and then, just a few days later, provided him with a photo array containing a picture of Appellant, we agree with the trial court's conclusion that the procedure was impermissibly suggestive. See Trial Court Opinion, 6/19/16, at 2; see also Simmons , 390 U.S. at 383.
Nevertheless, a finding of suggestiveness does not end our inquiry. Indeed, "the suggestiveness of the identification procedure is one relevant factor in determining the reliability of an identification, '[s]uggestiveness alone will not forbid the use of an identification, if the reliability of a subsequent identification can be sustained.'" Commonwealth v. Davis , 17 A.3d 390, 394 (Pa. Super. 2011), quoting Commonwealth v . McGaghey , 507 A.2d 357, 359 (Pa. 1986). An identification may still be reliable, and hence, admissible, if the Commonwealth can prove, "through clear and convincing evidence, the existence of an independent basis for the identification." Commonwealth v. Fisher , 769 A.2d 1116, 1127 (Pa. 2001), cert. denied, Fisher v . Pennsylvania , 535 U.S. 906 (2002). Notably, "when the witness already knows the defendant, this prior familiarity creates an independent basis for the witness's identification of the defendant." Commonwealth v. Reid , 99 A.3d 427, 448 (Pa. 2014), citing Commonwealth v . Ali , 10 A.3d 282, 303 (Pa. 2010).
Here, the trial court determined that an independent basis existed for Grove's identification of Appellant. Specifically, the trial court found that Grove "testified that he knew [Appellant] for about six years prior to the murder." Trial Court Opinion, 6/19/16, at 2. Appellant does not dispute this fact. Indeed, in his appellate brief, Appellant admits that the two "knew each other from previous interactions in Coatesville and in prison." Appellant's Brief at 29. Accordingly, because Grove "already kn[ew]" Appellant, his "prior familiarity" formed an independent basis for the identification. Reid , 99 A.3d at 448. Therefore, the trial court did not err in denying Appellant's motion to suppress the Commonwealth's identification evidence.
In Appellant's second issue, he argues that the trial court abused its discretion by granting the Commonwealth's motion in limine and permitting it to introduce evidence that Appellant sold cocaine to the victim immediately prior to the murder. Appellant's Brief at 30. Specifically, Appellant contends that the Commonwealth's evidence was inadmissible under Pennsylvania Rule of Evidence 404(b). Id. Appellant's argument fails for multiple reasons.
First, review of the certified record and trial testimony establishes that this issue was not preserved for purposes of appellate review. Notably, Appellant did not file a response to the Commonwealth's motion in limine before or after the pre-trial hearing, even when specifically permitted by the trial court to do so. N.T. Pre-Trial Hearing, 5/15/17 (Volume I), at 142-143. Furthermore, Appellant did not make a specific objection on the record at the pre-trial hearing or at trial. In fact, Appellant's counsel seemingly agreed that the Commonwealth "can probably bring in [evidence] as to what was going on." N.T. Pre-Trial Hearing, 5/15/17 (Volume I), at 142-143. Thus, Appellant utterly failed to place a timely objection to such evidence on the record. See Pa.R.E. 103(a)(1) (explaining that a claim of error "may not be predicated upon a ruling that admits or excludes evidence unless ... a timely objection ... appears of record"). Accordingly, this issue is waived. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
Even if Appellant preserved this issue for appeal, we would conclude that the evidence of Appellant's previous drug sale to the victim was admissible under Rule 404(b). This rule provides that, "[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character." Pa.R.Evid. 404(b)(1). However, Rule 404(b)(2) permits "other acts" evidence if it is admissible "for another purpose." Pa.R.Evid. 404(b)(2). The rule specifically references the following permissible purposes: "motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident." Id. In addition, our Supreme Court previously recognized another exception to the general rule, known as the res gestae exception. See Commonwealth v. Lark , 545 A.2d 491 (Pa. 1988). Pursuant to Lark , evidence of other crimes and acts is admissible to enable the Commonwealth to tell the "complete [] story of the crime" by "providing its immediate context of happenings near in time and place." Id. at 497, quoting McCormick on Evidence § 190 (2d ed. 1972). However, even if evidence is admissible for another purpose, Rule 404(b)(2) also requires, in a criminal case, that the "probative value of the evidence [to] outweigh[] its potential for unfair prejudice." Pa.R.Evid. 404(b)(2).
In this instance, Appellant seemingly concedes that the evidence of the prior drug transaction was admissible under the res gestae exception or to prove motive. See Appellant's Brief at 32. Appellant argues, however, that its prejudicial effect outweighed its probative value. Id. We disagree.
First, the evidence of the drug sale, while prejudicial, was not "so prejudicial" as to "inflame the jury to make a decision based upon something other than the legal propositions relevant to the case." Commonwealth v. Serge , 837 A.2d 1255, 1261 (Pa. Super. 2003), quoting Commonwealth v . Palmer , 700 A.2d 988, 992-993 (Pa. Super. 1997). Indeed, the fact that Appellant sold drugs to the victim, and that the victim then confronted Appellant with a Swiss Army knife regarding the quality of the drugs, merely provides context to how the two knew each other, as well as a possible motive behind the murder.
Second, the trial court adequately limited the risk of unfair prejudice. Notably, the Commonwealth sought to introduce evidence of several additional drug transactions between Appellant and other individuals on the day of the murder. N.T. Pre-Trial Hearing, 5/15/17 (Volume I), at 138-144. The trial court, however, determined that such evidence was irrelevant, and to the extent that it was relevant, it was unfairly prejudicial. Id. As such, the trial court limited the Commonwealth to introducing evidence of a single drug sale between Appellant and the victim. Trial Court Opinion, 6/19/17, at 4. In addition, the trial court provided a limiting instruction when the evidence was introduced. N.T. Trial, 7/27/17 (Volume I), at 158. Therefore, Appellant's contention is meritless.
Finally, Appellant argues that the evidence was insufficient to sustain his conviction of first-degree murder. Appellant's Brief at 33. In particular, Appellant asserts that the Commonwealth failed to prove that he did, in fact, kill the victim. Id. at 35. Accordingly, he contends that the evidence was insufficient to enable the jury to conclude that he possessed the specific intent to kill. Id. We disagree.
While Appellant was convicted of other crimes during his trial, he only challenges the sufficiency of the evidence for the first-degree murder conviction. Therefore, this Court is limited to the review of this conviction on appeal. --------
We consider sufficiency of the evidence claims under a well-accepted standard of review:
In reviewing the sufficiency of the evidence, we view all the evidence admitted at trial in the light most favorable to the Commonwealth, as verdict winner, to see whether there is sufficient evidence to enable the jury to find every element of the crime beyond a reasonable doubt. This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Although a conviction must be based on more than mere suspicion or conjecture, the Commonwealth need not establish guilt to a mathematical certainty.Commonwealth v. Eline , 940 A.2d 421, 432 (Pa. Super. 2007) (internal citations and quotations omitted). Under Pennsylvania law,
[t]o find a defendant guilty of first-degree murder a jury must find that the Commonwealth has proven [beyond a reasonable doubt] that he or she unlawfully killed a human being and did so in an intentional, deliberate and premeditated manner. It is the element of a willful, premeditated and deliberate intent to kill that distinguishes first-degree murder from all other criminal homicide. Specific intent to kill may be inferred from the defendant's use of a deadly weapon upon a vital party of the victim's body.Commonwealth v. Sattazahn , 763 A.2d 359, 363 (Pa. 2000) (emphasis added); 18 Pa.C.S.A. § 2502 ("A criminal homicide constitutes murder of the first[-]degree when it is committed by an intentional killing.")
Based upon review of the certified record, the parties' submissions, and the trial court's opinion, we find that the trial court thoroughly and accurately set forth why the evidence in this matter was sufficient to convict Appellant of the aforementioned crimes. See Trial Court Opinion, 9/14/18, at 2-5. Consequently, we affirm on the basis of the trial court opinion and adopt it as our own. The parties are instructed to attach a copy of the trial court's September 14, 2018 opinion to all future filings regarding this appeal.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 10/22/19
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