Commonwealth of Pa. v. Davis

• Decision Date: 04 May 2011
• Citation: 17 A.3d 390
• Parties: COMMONWEALTH of Pennsylvania, Appelleev.Derrick DAVIS, Appellant.
• Court: Pennsylvania Superior Court

17 A.3d 390

COMMONWEALTH of Pennsylvania, Appellee

v.Derrick DAVIS, Appellant.

Superior Court of Pennsylvania.

Argued Oct. 25, 2010.Filed Feb. 23, 2011.Reargument Denied May 4, 2011.

Burton A. Rose, Philadelphia, for appellant.Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.BEFORE: FORD ELLIOTT, P.J., GANTMAN and DONOHUE, JJ.

OPINION BY DONOHUE, J.:

Appellant, Derrick Davis (“Davis”), appeals from the August 12, 2009 judgment of sentence following his convictions of one count each of first degree murder, criminal conspiracy to commit murder (“conspiracy”), attempted murder, aggravated assault, recklessly endangering another person, retaliation against a witness, intimidating a witness, and two counts of possession of an instrument of crime.¹ For the reasons that follow, we affirm.

On March 12, 2007, Davis was arrested and charged in connection with the October 3, 2004 shooting death of Terrence Barron (“Barron”) and the August 5, 2006 shooting of William Flournoy (“Flournoy”), the only eyewitness to Barron's murder. Davis filed a motion to suppress Flournoy's identification of him as the shooter in both incidents, and after holding an evidentiary hearing the trial court denied the motion. On January 26, 2009, Davis and Christopher Willis, his alleged co-conspirator in Barron's death, were tried as co-defendants at a jury trial. The jury convicted Davis of the above-referenced crimes.

On August 12, 2009, Davis received the following concurrent sentences: life in prison (for first degree murder), 10–20 years of incarceration (for conspiracy), 10–20 years of incarceration (for attempted murder), 1–2 years of incarceration (for retaliation against a witness), 5–10 years of incarceration (for intimidating a witness), and 1–2 years of incarceration (for each of two counts of possession of an instrument of crime). He received no further penalty for aggravated assault and for recklessly endangering another person. This timely appeal followed. Davis filed a statement of matters on appeal, and the trial court filed a Pa.R.A.P. 1925(a) opinion.

On appeal, Davis raises two issues for our consideration:

1. Did the lower court err in refusing to grant suppression of the identification of [Davis] by William Flournoy?

2. Did the lower court err in refusing to permit impeachment of William Flournoy concerning his prior convictions for criminal mischief and defiant trespass?

Davis' Brief at 3.

For his first issue on appeal, Davis challenges the trial court's denial of his motion to suppress Flournoy's identifications of him as one of Barron's killers and as the man who later shot Flournoy. Specifically, Davis contends that a suggestive photo array required suppression. Davis' Brief at 7. Although we conclude that the photo array was suggestive, we disagree that suppression of the identification was warranted.

We adhere to the following scope and standard of review for an order denying a suppression motion:

We may consider only the Commonwealth's evidence 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.

An appellate court, of course, is not bound by the suppression court's conclusions of law. However, it is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given their testimony.Commonwealth v. Anthony, 977 A.2d 1182, 1185 (Pa.Super.2009) (citations and quotations omitted).

“In reviewing the propriety of identification evidence, the central inquiry is whether, under the totality of the circumstances, the identification was reliable.” Commonwealth v. Moye, 836 A.2d 973, 976 (Pa.Super.2003), appeal denied, 578 Pa. 694, 851 A.2d 142 (2004). While 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. McGaghey, 510 Pa. 225, 228, 507 A.2d 357, 359 (1986). Suggestiveness arises when the police employ an identification procedure that emphasizes or singles-out a suspect. See Simmons v. United States, 390 U.S. 377, 383, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968) (holding that the police showing several photos of suspects to eyewitnesses was suggestive).

Here, we agree with Davis that the police used a suggestive photo array when they showed Flournoy just three photos, one of which depicted Davis. Photo Array, 1/31/07. The other two pictures consisted of a man named “Victor,” whom Flournoy already knew, and a much older, bald man whose appearance differed markedly from both Davis and Flournoy's prior description of the suspect. Id.; N.T., 1/22/09, at 57–58. Under these circumstances, we conclude that the array improperly emphasized Davis and was therefore suggestive.

Accordingly, our inquiry must focus upon whether the identifications were nevertheless reliable. To establish reliability in the wake of a suggestive identification, the Commonwealth must prove, through clear and convincing evidence, the existence of an independent basis for the identification. Commonwealth v. Fisher, 564 Pa. 505, 523, 769 A.2d 1116, 1127 (2001), cert. denied, Fisher v. Pennsylvania, 535 U.S. 906, 122 S.Ct. 1207, 152 L.Ed.2d 145 (2002). An independent basis is established when “the in-court identification resulted from the criminal act and not the suggestive [identification procedure].” McGaghey, 510 Pa. at 228, 507 A.2d at 359. To determine if an identification resulted from the criminal act (and, therefore, has an independent basis), the trial court must consider 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.

Id. (citation omitted). With this standard in mind, we will review the trial court's finding that Flournoy's identification of Davis had an independent basis. N.T., 1/22/09, at 102.

The record sufficiently supports the trial court's finding. Immediately after Barron's murder, Flournoy described Davis in detail to police as “about 20 years old, black male, dark skin, braids, beige khaki shirt and pants and beige timberland boots, about 5'5? [with] a medium build and no facial hair.” Police Report, 10/4/03, at 3; N.T., 1/22/10, at 26–27. Flournoy added that “I see [sic] him around, but I don't know his name; he [has] braids and he [is] from Paxon Street.” Police Report, 10/4/03, at 3; N.T., 1/22/10, at 26. Additionally, Flournoy's description of Davis remained unchanged throughout the pendency of this case. N.T., 1/22/09, at 66–67; N.T., 1/28/09, at 31–33; N.T., 1/29/09, at 11–12, 24–25. Flournoy also testified that on the night of Barron's murder, he was not impaired by alcohol or drugs and he was several feet from Davis when he saw Davis in the lighted dining area of Barron's residence. N.T., 1/28/09, at 11–15, 19–22, 25–26, 115–18, 119–22, 125–28; N.T., 1/29/09, at 34–35. Finally, when Flournoy identified Davis for police three years after the murder, he did so quickly and decisively, although Davis by then had a beard and no braids. N.T., 1/22/09, at 56–58, 62–63, 67 (“That's him. That's the one that shot me and shot and killed Terrance Barron.”). Thus, the record supports the trial court's finding that the identification had an independent basis and was admissible. Davis is not entitled to relief on this basis.

For his second issue on appeal, Davis claims that the trial court erred in precluding the impeachment of Flournoy with his prior convictions for criminal mischief and defiant trespass.² Davis argues that pursuant to Rule 609(a) of the Pennsylvania Rules of Evidence, he was entitled to attack Flournoy's credibility using these prior convictions because they both involve dishonesty or false statement. Davis' Brief at 23.

“The determination of the scope and limits of cross-examination are within the discretion of the trial court, and we cannot reverse those findings absent a clear abuse of discretion or an error of law.” Commonwealth v. Brown, 449 Pa.Super. 346, 673 A.2d 975, 978 (1996) (citing Commonwealth v. Nolen, 535 Pa. 77, 82, 634 A.2d 192, 195 (1993)), appeal denied, 545 Pa. 675, 682 A.2d 306 (1996). “[A]n abuse of discretion is not a mere error in judgment, but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law.” Commonwealth v. Bradford, 2 A.3d 628, 632 (Pa.Super. 2010). Furthermore, when a “trial court indicate[s] the reason for its decision our scope of review is limited to an examination of the stated reason.” Commonwealth v. Sanchez, 848 A.2d 977, 984 (Pa.Super.2004) (citations omitted). Here, the trial court precluded Davis' impeachment of Flournoy with his convictions for criminal mischief and defiant trespass on the grounds that these crimes do not involve dishonesty or false statement.

“For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict, or by plea of guilty or nolo contendere, shall be admitted if it involved dishonesty or false statement.” Pa.R.E. 609(a). “Crimes involving dishonesty or false statement [are] commonly referred to as crimen falsi crimes.” Commonwealth v. Moser, 999 A.2d 602, 607 (Pa.Super.2010). “ [C]rimen falsi involves the element of falsehood, and includes everything which has a tendency to injuriously affect the administration of justice by the introduction of falsehood and fraud.”...