J-S46007-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

ATIBA WICKER

Appellant No. 819 EDA 2014

Appeal from the Judgment of Sentence December 18, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002845-2012

 CP-51-CR-0002843-2012

 CP-51-CR-0002844-2012

BEFORE: MUNDY, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.: FILED AUGUST 13, 2015

Appellant, Atiba Wicker, appeals from the December 18, 2013 

aggregate judgment of sentence of 31 to 72 years’ imprisonment, imposed 

after he was found guilty of three counts of aggravated assault, and one 

count each of possession of a firearm prohibited and recklessly endangering 

another person (REAP).1 After careful review, we affirm.

The trial court summarized the relevant factual and procedural history 

of this case as follows.

Philadelphia Police Officer Tamike Reid testified 

that, at approximately 7:45 p.m. on October 2, 

2011, she was driving to work at the 18th Police 

District in her personal vehicle when she observed 

____________________________________________

1 18 Pa.C.S.A. §§ 2702(a), 6105(a) and 2705, respectively.
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four males standing outside La Pearl Bar, located at 

54th Street and Haverford Avenue in the City of 

Philadelphia. As she approached, she observed a 

taller male, she described as appearing to be the 

“bouncer or security” strike another shorter male. 

She pulled to the corner and observed the shorter 

male get into a black Mercedes and drive away. She 

explained she didn’t take further action because she

was not in full uniform and had no radio to call for 

backup.

Later, while on duty, she heard a citywide high 

priority radio call announcing, “Cars stand by, 19th

District, 54th and Haverford, report of a shooting at 

La Pearl Lounge.” She immediately drove to La 

Pearl, approximately 10 to 12 blocks away, and 

reported her earlier observations to the assigned 

detective and later in the evening gave him a 

detailed statement of her observations.

Philadelphia Police Detective Robert Daly 

testified that on October 2, 2011, he was assigned to 

the Southwest Detectives Division of the Philadelphia 

Police Department located at 55th and Pine Streets in 

the City of Philadelphia, when at approximately 8:30 

p.m. he was assigned as the lead investigator to 

investigate the shooting at La Pearl. On arriving 

there at approximately 9:00 p.m. he immediately 

noticed fired cartridge casings on the ground and 

bullet holes in the front door. Detective Daly, 

testified that he interviewed and took photographs of 

Mr. Alvin Chandler who had been injured by flying 

glass. He testified that Mr. Chandler told him he was 

at the door at the time of the shooting but was 

unable to give him a description of the shooter.

After completing his initial investigation at La 

Pearl, Detective Daly proceeded to the Hospital of 

the University of Pennsylvania to interview the other 

two victims of the shooting, Ms. Keisha Beckles and 

Mr. James Rice. He described Ms. Beckles injuries as 

consisting of a large gash across her upper lip and 

out the side from where she got shot in the face. 

After interviewing Ms. Beckles, he next interviewed 
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Mr. Rice in his room. He described Mr. Rice’s room 

as having an open door and filled with his friends. 

He took a brief statement from Mr. Rice in which he 

told Detective Daly that he had seen the shooter but 

gave no description.

Detective Daly returned to the Hospital the 

next day with a photo array he had compiled from 

information gathered as a result of his investigation. 

This array did not contain a photograph of 

[Appellant]. Although Mr. Rice was unable to 

identify anyone from the array, he again told 

Detective Daly that, “Yeah, I’ll be able to I.D. him.”

As the investigation continued, Detective Daly 

maintained contact with Mr. Rice, who refused to 

come into the offices of Southwest Detectives, 

because “he was very apprehensive about coming 

in.” On October 25, 2011 Detective Daly eventually 

got Mr. Rice to meet with him at Central Detective 

Division because it has an underground entrance 

that can’t be seen from the street. At this meeting, 

using the description of the shooter given to him by 

Mr. Rice, Detective Daly created a large computer 

generated photo array. Mr. Rice identified the 

photograph of one individual, not [Appellant], as 

looking like the shooter but clear that this person 

was not the shooter.

Detective Daly, testified that on November 6, 

2011, he received a phone call from Mr. Rice saying, 

“the boy that shot me just called me” from a blocked 

caller I.D. number. On November 10, 2011, after 

spending several days tracing the call back through 

Mr. Rice’s phone carrier, Detective Daly recovered 

the blocked number and called it, reaching Ms. 

Jacquetta Rouse. She told him that on November 6 

she had been on a date with [Appellant], whom she 

just knew as “T,” but was unaware of any phone call 

made to Mr. Rice. She also gave Detective Daly 

[Appellant]’s phone number. Based on the 

information he received from Ms. Rouse, Detective 

Daly, was able to identify [Appellant] and prepared a 

photo array containing [Appellant]’s photo. On 
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November 11, 2011, he displayed the array to Mr. 

Rice, who immediately identified [Appellant] as the 

shooter.

Mr. James Rice testified that on, Sunday, 

October 2, 2011, he was employed at La Pearl Bar 

located at 54th Street and Haverford Avenue in the 

City of Philadelphia. On that particular evening he 

was providing security at the front door.

He testified that between approximately 7:30 

to 7:45 p.m. [Appellant] threw a drink on one of the 

dancers in the establishment. On seeing this, he 

walked over to [Appellant] saying to him, “Come on 

outside. Let me talk to you for a minute.” After 

going outside [Appellant] appeared to be receptive 

to Mr. Rice’s concerns when another patron, Julius 

Faison, whom he knows as “Drew”, came outside. 

Faison engaged [Appellant] in an argument over the 

drink having spilled on him as well. The verbal 

argument soon led to an exchange of blows between 

the two of them. [Appellant] then went to his car 

and drove off.

Mr. Rice testified that approximately thirty to 

forty minutes later [Appellant] returned with a gun 

and asked Mr. Rice, “Where did that guy go?” Being 

preoccupied, he responded, “He’s not here. Give me 

a second.” When others noticed the gun, Mr. Rice 

got everyone inside the bar and closed the door 

behind him. Seconds after closing the door, Mr. Rice 

heard gunshots and was struck in the back by a 

bullet. He also testified that two other people were 

injured as a result of the shooting.

Mr. Rice was then driven to the hospital in a 

police car for treatment. After receiving treatment, 

Mr. Rice testified he gave a statement to the 

investigating detective.

When asked on direct examination why the 

statement he made to Detective Daly in the hospital 

differed from his testimony at trial he responded, 

because “there was probably people inside the 
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hospital with me, and I’m not going to be talking to 

the police.” When asked why he would not meet 

with Detective Daly in his offices at 55th and Pine 

Streets, Mr. Rice replied, “It’s my neighborhood. I 

wasn’t going. I would have never went there.” He 

also testified that he had pointedly refused Detective 

Daly’s request to meet him in his office.

Mr. Rice testified that on November 6, 2011, 

he received a phone call at approximately 2:30 p.m. 

from a blocked phone number. The first voice he 

heard was a female voice followed by a male voice 

who identified himself “T” or “D,” “The person that 

shot you” who then said, “Don’t worry about it I’ll cut 

you a check.”

Mr. Rice immediately called Detective Daly to 

report this call. Subsequently, on November 11, 

2011, he met with Detective Daly who showed him a 

photo array from which he identified [Appellant]’s 

picture.

Ms. Jacquetta Rouse testified that shortly after 

being on a date with [Appellant] she received a 

phone call from detectives inquiring about 

[Appellant] and his use of her cell phone. She told 

them that at the time she only knew [Appellant] as 

“T” and gave them his phone number. She further 

testified that she was not aware that [Appellant] had 

used her phone nor did she know Mr. Rice. She also 

testified that [Appellant] later admitted to her that 

he had used her phone because he had something 

he wanted to straighten out.

Ms. Nicole Cooper testified that [Appellant] has 

been her boyfriend since 2009. She also testified 

that on the evening of October 2, 2011, she 

encountered [Appellant] at La Pearl and got into a 

heated argument, each upset that the other was 

there. After the argument [Appellant] walked away 

and she didn’t see him until later that night. When 

asked about the shooting she testified, “something 

did happen while I was there because I ran out.” “I 

didn’t see anyone get shot.”
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FBI Special Agent William Shute, a seventeen 

year veteran of the FBI, currently assigned to the 

FBI’s Cellular Analysis Survey Team, was qualified, 

without objection, as an expert in the field of 

historical cell site analysis. Analyzing [Appellant]’s 

cell phone usage records, Agent Shute testified that, 

on October 2, 2011: 1) at 6:41 p.m., [Appellant]’s 

cell phone was located in the vicinity of 11th and 

Spring Garden Streets in the City of Philadelphia, 

east of La Pearl; 2) at 7:07 p.m., usage of the phone 

began to move; 3) at 7:29 p.m., in the immediate 

vicinity of La Pearl; 4) at 7:46 p.m. the phone is on 

the move away from La Pearl heading in the westerly 

direction; 5) at 8:20 p.m, in the vicinity of Cobbs 

Creek Parkway and Walnut Street, west of La Pearl; 

6) at 8:27 p.m., in the vicinity of 63rd Street and 

Lebanon Avenue, west and north of La Pearl; and 7) 

at 8:40 p.m., in the vicinity of Fairmount Park, east 

of La Pearl. Agent Shute also testified that there 

were no calls logged on [Appellant]’s phone between 

8:27 to 8:40 .... He further testified that the route 

between the cell sites of these two calls, would have 

taken [Appellant] through three cell towers, one of 

which is located in the vicinity of La Pearl. The 

usage records indicate that [Appellant] travelled 

directly back to his starting point at 11th and Girard 

from the location of the 8:40 call.

Trial Court Opinion, 9/16/14, at 5-11 (some internal quotation marks and 

citations omitted).

On November 15, 2011, the Commonwealth filed three informations, 

charging Appellant with one count each of aggravated assault and 

possession of a firearms prohibited at CP-51-CR-2843-2012; one count each 

of aggravated assault and REAP at docket number CP-51-CR-2844-2012; 

and one count of aggravated assault at docket number CP-51-CR-2845-

2012. Appellant proceeded to a jury trial on February 20, 2013, but the trial 
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court declared a mistrial on February 25, 2013. Appellant proceeded to a 

second jury trial on May 22, 2013. On June 3, 2013, at the conclusion of the 

second trial, the jury found Appellant guilty of all charges. On December 18, 

2013, the trial court imposed an aggregate sentence of 31 to 72 years’ 

imprisonment. Appellant filed a timely post-sentence motion on December 

26, 2013, which the trial court denied on March 7, 2014. On March 18, 

2014, Appellant filed a timely notice of appeal.2

On appeal, Appellant raises four issues for our review.

I. Did the trial court err in allowing the testimony 

of Agent Kelly Ashton as to Appellant’s 

statements made to her while he was in 

custody and after his indictment?

II. Did the [trial] court err in not allowing Juror 

#8 to submit his question to the [trial] court in 

writing so it could either be asked or 

rephrased, or denied?

III. Should this matter be remanded for a hearing 

on whether there was probable cause to 

execute a search warrant for Appellant’s cell 

usage records?

IV. Did the [trial] court err when it failed to give a 

[Commonwealth v. Kloiber, 106 A.2d 820 

(Pa. 1954)] charge to the jury on identification 

and omitted any discussion of identification[?]

Appellant’s Brief at 17.

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2 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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Appellant’s first issue pertains to the denial of his motion to suppress. 

We begin by noting our well-settled standard of review.

[I]n addressing a challenge to a trial court’s denial of 

a suppression motion [we are] 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 Commonwealth 

prevailed in the suppression court, we may consider 

only the evidence of the Commonwealth 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.

Commonwealth v. Washington, 63 A.3d 797, 802 (Pa. Super. 2013) 

(some brackets and citation omitted).

Here, Appellant argues that his statements concerning his being in a 

bar and that the police were looking for him, made to Agent Kelly Ashton of 

the Pennsylvania Board of Probation and Parole, after the conclusion of a 

parole hearing, violated his Sixth Amendment rights under the Counsel 

Clause pursuant to the Supreme Court’s decision in Massiah v. United 

States, 377 U.S. 201 (1964). Appellant’s Brief at 21. In Massiah, the 

defendant had already been indicted on several drug offenses and was free 

on bail pending trial. Id. at 201. Unbeknownst to Massiah, his co-defendant 

had decided to cooperate with the federal authorities and the government 

installed a radio transmitter, similar to what is colloquially known as a “wire” 

today, in the co-defendant’s car. Id. at 202-203. Massiah unknowingly 
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made several incriminating statements to his co-defendant which the federal 

agents listened to via the radio transmitter. Id. at 203.

The Supreme Court held that the admission of these inculpatory 

statements violated Massiah’s Sixth Amendment rights under the Counsel 

Clause. 

We hold that the petitioner was denied the basic 

protections of that guarantee when there was used 

against him at his trial evidence of his own 

incriminating words, which federal agents had 

deliberately elicited from him after he had been 

indicted and in the absence of his counsel. It is true 

that in the Spano case the defendant was 

interrogated in a police station, while here the 

damaging testimony was elicited from the defendant 

without his knowledge while he was free on bail. 

But, as Judge Hays pointed out in his dissent in the 

Court of Appeals, “if such a rule is to have any 

efficacy it must apply to indirect and surreptitious 

interrogations as well as those conducted in the 

jailhouse. In this case, Massiah was more seriously 

imposed upon [...] because he did not even know 

that he was under interrogation by a government 

agent.”

Id. at 206.

In the case sub judice, Appellant argues that Massiah requires the 

suppression of Appellant’s statements to Agent Ashton. However, here, 

Agent Ashton testified that Appellant himself initiated the conversation by

waving her over to him. N.T., 1/11/13, at 11-12.3 Although Appellant’s 

____________________________________________

3 We note the cover page on the transcript erroneously lists the date of the 

testimony as January 11, 2012.
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Sixth Amendment right to counsel had attached, Massiah only applies to 

statements elicited by the Commonwealth or its agents through some 

affirmative action. Massiah, supra. Our Supreme Court has recognized 

this distinction. See Commonwealth v. Mayhue, 639 A.2d 421, 436 (Pa. 

1994) (finding there was no violation of Massiah where Mayhue initated 

conversations with a jailhouse informant). Based on these considerations, 

we conclude the trial court properly denied Appellant’s motion to suppress 

on this basis. See Washington, supra.

In Appellant’s second issue, he avers that the trial court “erred in not 

allowing juror number 8 to submit his question to the [trial] court so that it 

could be asked[.]” Appellant’s Brief at 24. However, before we may review 

this issue, we must determine whether it has been properly preserved for 

our review, as the trial court concludes Appellant waived this issue by not 

objecting during the trial.

It is axiomatic that “[i]ssues not raised in the lower court are waived 

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). Our 

Supreme Court has repeatedly emphasized the importance of issue 

preservation. 

Issue preservation is foundational to proper 

appellate review. Our rules of appellate procedure 

mandate that “[i]ssues not raised in the lower court 

are waived and cannot be raised for the first time on 

appeal.” Pa.R.A.P. 302(a). By requiring that an issue 

be considered waived if raised for the first time on 

appeal, our courts ensure that the trial court that 

initially hears a dispute has had an opportunity to 
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consider the issue. This jurisprudential mandate is 

also grounded upon the principle that a trial court, 

like an administrative agency, must be given the 

opportunity to correct its errors as early as possible. 

Related thereto, we have explained in detail the 

importance of this preservation requirement as it 

advances the orderly and efficient use of our judicial 

resources. Finally, concepts of fairness and expense 

to the parties are implicated as well.

In re F.C. III, 2 A.3d 1201, 1211-1212 (Pa. 2010) (some internal citations 

omitted); accord Commonwealth v. Miller, 80 A.3d 806, 811 (Pa. Super. 

2013) (citation omitted).

Instantly, the following exchange occurred at the end of redirect 

examination of a defense witness.

Juror No. 8: I have a question.

The Court: We don’t do questions. But the court 

officer will speak to you. 

Do you have any recross?

[Commonwealth]: No.

[Defense Counsel]: I apologize there was one 

other thing.

The Court: Okay.

...

The Court: In some jurisdictions, not in 

Pennsylvania, in some jurisdictions jurors can ask 

questions.

N.T., 5/30/13, at 81-82. We have reviewed the transcript and are unable to 

locate any place in the record where Appellant made a contemporaneous 
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objection to the trial court’s answer to the juror’s request. As a result, we 

deem this claim waived on appeal.4

We elect to address Appellant’s final two issues together. In his third 

issue, Appellant asks that this Court remand this case for a new suppression 

hearing as to whether a search warrant obtained for Appellant’s cell phone 

records was supported by probable cause. Appellant’s Brief at 36. In his 

fourth issue, Appellant avers the trial court erred in not giving a Kloiber

instruction to the jury. Id. at 38, 44.

By its plain text, Rule 1925(b) requires that statements “identify each 

ruling or error that the appellant intends to challenge with sufficient detail to 

identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). The 

Rule also requires that “[e]ach error identified in the Statement will be 

deemed to include every subsidiary issue contained therein which was raised 

in the trial court ....” Id. at 1925(b)(4)(v). Finally, any issues not raised in 

accordance with Rule 1925(b)(4) will be deemed waived. Id. at 

1925(b)(4)(vii). Our Supreme Court has held that Rule 1925(b) is a brightline rule.

Our jurisprudence is clear and well-settled, and 

firmly establishes that: Rule 1925(b) sets out a 

simple bright-line rule, which obligates an appellant 

to file and serve a Rule 1925(b) statement, when so 

____________________________________________

4 As this issue is waived, we express no opinion on the larger question of 

whether, and under what circumstances, juror questioning should be 

permissible in Pennsylvania.
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ordered; any issues not raised in a Rule 1925(b) 

statement will be deemed waived; the courts lack 

the authority to countenance deviations from the 

Rule’s terms; the Rule’s provisions are not subject to 

ad hoc exceptions or selective enforcement; 

appellants and their counsel are responsible for 

complying with the Rule’s requirements; Rule 1925 

violations may be raised by the appellate court sua 

sponte, and the Rule applies notwithstanding an 

appellee’s request not to enforce it; and, if Rule 

1925 is not clear as to what is required of an 

appellant, on-the-record actions taken by the 

appellant aimed at compliance may satisfy the Rule. 

We yet again repeat the principle first stated in 

[Commonwealth v.] Lord, [719 A.2d 306 (Pa. 

1998)] that must be applied here: “[I]n order to 

preserve their claims for appellate review, 

[a]ppellants must comply whenever the trial court 

orders them to file a Statement of Matters 

Complained of on Appeal pursuant to Pa.R.A.P. 1925. 

Any issues not raised in a Pa.R.A.P. 1925(b) 

statement will be deemed waived.” [Id.] at 309.

Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011) (footnote omitted).

In this case, Appellant’s Rule 1925(b) statement fails to list any claim 

addressing a Kloiber instruction, or any suppression issue apart from the 

statements made to Agent Ashton. See Appellant’s Rule 1925(b) 

Statement, 4/14/14, at 1-2. As a result, Appellant may not raise these 

issues for the first time on appeal. Therefore, we deem these two claims 

waived.5

____________________________________________

5

For the same reason, Appellant’s separate application for remand to litigate 

a suppression motion on the basis of Riley v. California, 134 S. Ct. 2473 

(2014), is denied.
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Based on the foregoing, we conclude all of Appellant’s issues on appeal 

are either waived or devoid of merit.6 Accordingly, the trial court’s 

December 18, 2013 judgment of sentence is affirmed.

Judgment of sentence affirmed. Application for remand denied. 

Application for extension of time to file brief denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/13/2015

____________________________________________

6 The Commonwealth’s application for an extension of time to file its brief is 

denied.