Commonwealth v. Brown

• Decision Date: 11 December 2018
• Docket Number: No. 1904 EDA 2016,1904 EDA 2016
• Citation: 200 A.3d 986
• Parties: COMMONWEALTH of Pennsylvania v. James Lorenzo BROWN, Appellant
• Court: Pennsylvania Superior Court

200 A.3d 986

COMMONWEALTH of Pennsylvania

v.James Lorenzo BROWN, Appellant

No. 1904 EDA 2016

Superior Court of Pennsylvania.

Submitted September 24, 2018

Filed December 11, 2018

Karl Baker, Public Defender, Philadelphia, for appellant.

Lawrence J. Goode, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

OPINION BY LAZARUS, J.:

James Lorenzo Brown appeals from his judgment of sentence, entered in the Court of Common Pleas of Philadelphia County, after a jury convicted him of robbery¹ and possessing instruments of crime ("PIC"),² and the trial court convicted him of possession of a firearm by person prohibited.³ Upon careful review, we affirm.

The trial court set forth the facts of this matter as follows:

On June 26, 2015, Gwenervere Presley (hereinafter, "the Complainant") had her aunt drive her to the ATM at 50^th and Baltimore Avenue, in the city and county of Philadelphia. The Complain[an]t's 13[-]year[-]old daughter, Royalti, rode with them. They arrived at the ATM at approximately 11:30 a.m. The Complainant exited the vehicle. Her aunt and Royalti waited in the car. The Complainant withdrew $100 from the ATM. She put the money in her pocket. She then proceeded to make another ATM withdrawal. As she was waiting for the transaction to be completed, she felt someone standing unusually close to her. She looked up and saw a man's face. He was standing to her left side, right next to her. The man showed the Complainant a gun in his waist. She started screaming. The man then pointed the gun at her and told her to give him her money. She began to scream more frantically. She feared for her life. She gave the man $100. He then turned around, walked to a car parked on the corner of 50^th and Baltimore Avenue, entered the passenger side of the car, and rode off. Royalti had the presence of mind to get the license plate number off the car the man entered and place it in her cell phone.

Trial Court Opinion, 11/29/17, at 1-2 (citations to record omitted).

Using the tag number obtained by the Complainant's daughter, police identified Ernest Matthews as the owner of the vehicle in which the suspect fled. Upon questioning, Matthews identified Brown as the individual seen riding away in his car after the Complainant was robbed. On July 12, 2011, the Complainant identified Brown from a photo array as the man who had robbed her.

On October 29, 2015, a jury found Brown guilty of robbery and PIC. Following the jury verdict, the parties proceeded to a stipulated waiver trial on the charge of possession of firearm by person prohibited, after which the court entered a guilty verdict. On May 11, 2016, the court sentenced Brown to an aggregate sentence of 32 ½ to 65 years' imprisonment.⁴ On June 16, 2016, Brown filed a timely notice of appeal. On August 9, 2016, the trial court ordered Brown to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days. Brown failed to timely file his Rule 1925(b) statement and the trial court subsequently entered a Rule 1925(a) opinion noting Brown's lack of compliance. On January 10, 2017, this Court remanded the case to the trial court for the filing of a Rule 1925(b) statement. Brown timely complied, and the trial court issued an updated Rule 1925(a) opinion. Brown raises the following issues on appeal:

1. Did not the [trial] court err in denying [Brown's] motion to admit expert testimony on the subject of eyewitness identification?

2. Did not the [trial] court err in denying [Brown's] motion in limine to prohibit inadmissible evidence and argument regarding the accuracy of the witness' identification of [Brown] as related to her level of confidence in her identification where scientific evidence proves that there is no correlation between how certain a witness is of his/her identification and the accuracy of that identification?

3. Did not the trial court err in denying [Brown's] request for supplemental jury instructions which were carefully targeted toward juror recognition of the validity of deep-seated beliefs on issues crucial to [Brown's] defense?

4. Did not the [trial] court err by denying [Brown's] "Motion to Dismiss or in Alternative Preclude Testimony" for the Commonwealth's failure to preserve exculpatory material?

Brief of Appellant, at 4.

First, Brown contends that the trial court erred in denying his motion to admit expert testimony on the subject of eyewitness identification. Specifically, Brown argues that the "significant misunderstandings regarding perception, memory and recall and the reliability of eyewitness identification" of jurors can only be addressed through expert testimony, Appellant's Brief at 16, and that in light of the Supreme Court's recent rejection of a per se ban on expert testimony, he is entitled to a new trial. See Commonwealth v. Walker , 625 Pa. 450, 92 A.3d 766, 787 (2014) (holding admission of expert testimony regarding eyewitness identification not per se impermissible but instead subject to discretionary decision of trial court).

This Court evaluates the admission of evidence by an abuse of discretion standard. Commonwealth v. Alicia , 625 Pa. 429, 92 A.3d 753, 760 (2014). An abuse of discretion is not merely an error of judgment. Rather, discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, or ill-will, as shown by the evidence of record. Commonwealth v. Busanet , 572 Pa. 535, 817 A.2d 1060, 1076 (2002).

While our Supreme Court has abandoned the absolute ban on expert testimony regarding eyewitness identification, its admission is not mandatory. Rather, such expert testimony is generally admissible only when it is relevant and where "the Commonwealth's case is solely or primarily dependent upon eyewitness testimony." Walker , 92 A.3d at 787.

The matter sub judice is distinguishable from Walker . In Walker , the Commonwealth's primary evidence consisted of a cross-racial identification, at night, where the victim had a fleeting view of the perpetrator. Additionally, there was no corroborating evidence as to the identification of the perpetrator.

In contrast, here, the Complainant and her daughter viewed the assailant in daylight and Complainant was able to specifically describe Brown and his clothing, which included a Philadelphia Eagles jersey. The Complainant also testified that the perpetrator fled the scene in the passenger seat of a black vehicle. The Complainant's daughter corroborated her mother's description of the man, whom she saw flee to the vehicle. Using the license number recorded by the Complainant's daughter, authorities located the vehicle's owner, Ernest Matthews. Matthews confirmed that Brown was in Matthews' black vehicle on the day of the robbery and corroborated the description of his attire. Matthews further testified that Brown had no money when he left the vehicle and returned moments later with money in his hand. Finally, police obtained surveillance footage from the bank, and both Royalti and Matthews identified Brown and his clothing in photographic stills from the footage.

Because the eyewitness identification in this case was substantially corroborated by independent evidence, the trial court acted within its discretion in denying the admission of expert testimony relating to the identification.

Brown next argues that the trial court improperly denied his motion in limine to bar witness testimony and prosecutorial argument concerning witness confidence. Specifically, he argues that the Complainant's testimony concerning her own confidence in her identification of him should be barred because "[s]cientific evidence proves no correlation between how certain a witness is of his/her identification and how accurate the identification is." Appellant's Brief, at 18.

The standard of review on appeal of a denial of a motion in limine is abuse of discretion. Commonwealth v. Stokes , 78 A.3d 644, 654 (Pa. Super. 2013). "The trial court has considerable discretion in ruling upon whether testimony is ‘fact’ or ‘opinion’ testimony, and if ‘opinion,’ whether it should be admitted or excluded." Commonwealth v. Galloway , 336 Pa.Super. 225, 485 A.2d 776, 781 (1984).

In his brief, Brown fails to identify any specific testimony in which the Complainant vouches for the accuracy of, or characterizes her degree of certainty in, her identification of Brown. In order for this Court to determine whether Brown was prejudiced by the trial court's adverse ruling on his motion in limine , he must, at a minimum, direct us to the specific places in the record where allegedly prejudicial testimony was elicited. He has failed to do so, thus substantially impeding our review of this issue. Accordingly, Brown has waived his claim. Commonwealth v. Smith , 604 Pa. 126, 985 A.2d 886, 906-07 (2009) (failure to properly develop argument, with proper citation to record, results in waiver of claim); Pa.R.A.P. 2101 (when defects in brief impede our ability to conduct meaningful appellate review, we may dismiss appeal entirely or find certain issues waived).

Brown next alleges that the trial court erred in refusing to allow his requested jury instruction as to eyewitness identification because "the instant case [ ] involved an eyewitness identification in a situation of high stress involving a weapon that happened very quickly." Appellant's Brief, at 22. Brown requested that the trial court instruct the jury using an "enhanced jury charge[ ]" adopted by the Supreme Court of New Jersey in State of New Jersey v. Henderson , 208 N.J. 208, 27 A.3d 872 (2011). Brown is entitled to no relief.

We review a trial court's refusal to give a specific jury instruction for an abuse of discretion or error of law. Commonwealth v. De M arco , 570 Pa. 263, 809 A.2d 256, 260–61 (2002). The trial court has broad discretion in its phrasing of jury instructions "so long as the...