J-S88012-16

* Retired Senior Judge assigned to the Superior Court 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

THOMAS BEECH,

Appellant No. 628 EDA 2016

Appeal from the Judgment of Sentence of January 22, 2016

In the Court of Common Pleas of Bucks County

Criminal Division at No(s): CP-09-CR-0000676-2015,

CP-09-CR-0003138-2015 and CP-09-CR-0006115-2014

BEFORE: OLSON, RANSOM AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 13, 2017

Appellant, Thomas Beech, appeals from the judgment of sentence 

entered on January 22, 2016. We affirm.

The trial court accurately summarized the factual background of this 

case as follows:

On July 2, 2014, Constance Rondeau [(“Rondeau”)]. . . arrived 

home [in Montgomery County] to find a blue Ford Focus parked 

in her driveway. She waited in her car for her daughter to arrive, 

as she did not know whose car was in her driveway or if 

someone was in her home. Thereupon, Rondeau witnessed a 

“slim natured man with dark hair and his arm wrapped up” exit 

her home and enter the car and drive off. When Rondeau’s 

daughter arrived, the two of them walked to the back of the 

house and “saw the disaster.” Rondeau noticed that a bench 

from her deck was moved towards her back window, and that 

her back window was broken. Upon entering her house, 

Rondeau observed “blood all over” the bathroom that was 

connected to the broken rear window, and “blood all throughout 

the different portions of the house, even the upstairs.” The DNA 
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extracted from the blood in Rondeau’s house matched 

Appellant’s DNA. Further, the Commonwealth’s expert on 

cellular technology and forensics, using Appellant’s cell phone 

records, offered evidence showing that Appellant’s cell phone 

was “in the vicinity of the victim’s residence” surrounding the 

time of the burglary. 

On July 26, 2014, Marybell Melendez [(“Melendez”)], a resident 

of [Bucks County] encountered Appellant “trying to get into her 

back door.” While in her home cleaning her bathroom, Melendez 

heard a knock at her back door, and went and looked out her 

window and saw Appellant looking around. After losing sight of 

Appellant and returning to continue to clean her bathroom, 

Melendez heard scratching, and then stopped what she was 

doing and approached her back door where she witnessed 

Appellant trying to break the screen on her back outer door. 

Melendez then approached Appellant at the back door and 

engaged in a face to face confrontation with him. When she 

noticed he was wearing gloves, she indicated that she was going 

to call the police, at which point Appellant left. . . .

On August 12, 2014, Amanda Paley [(“Paley”)], a resident of 

[Bucks County], came home with her 10-month[-]old son, and 

upon entering her home saw that a window and her bathroom 

cabinets were left open. She initially thought her husband was 

responsible for opening them before he left the house. She 

proceeded to take a shower, and upon finishing, entered her 

bedroom and noticed that her [closet] door was open, and some 

of her belongings, including an empty jewelry box, were strewn 

across the floor. Upon noticing this scene, Paley grabbed her

son, exited the house, got in her car, and called 911. Shortly 

after Paley called 911, a park ranger from the adjacent 

Bensalem Community Park, Kenneth Buckalew [(“Buckalew”)], 

arrived and told Paley he would take a walk around the house to 

check things out. While walking around the house, Buckalew 

saw Appellant climb out of Paley’s window holding a bag. After 

Buckalew arrived and proceeded to walk around the house, Paley 

witnessed Appellant come around the side of her house, carrying 

“the type of bag they normally give a patient in the hospital.” 

Paley got out of her car and started yelling at Appellant, at which 

point he started running towards the nearby park. Moments 

later, Paley observed Appellant “pull out of the driveway of the 

park in a car,” which was a blue Ford Focus. Prior to Buckalew 

being aware of the incident at Paley’s residence, he took a 
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photograph of a blue Ford Focus parked in the Bensalem 

Community Park parking lot because he found it suspicious, and 

at trial Paley identified the car in the photograph as the car in 

which she saw Appellant drive away. Paley also subsequently 

identified Appellant’s vehicle that was impounded by police as 

the vehicle in which Appellant fled. Once again, the 

Commonwealth’s expert on cellular technology and forensics, 

based on Appellant’s cell phone records, proffered evidence 

indicating that Appellant’s cell phone was used in close proximity 

to [Paley’s] residence . . . during the time surrounding the 

burglary of said residence. 

Trial Court Opinion, 5/20/16, at 4-6 (honorifics, headings, internal 

alterations, ellipses, footnote and internal citations omitted).

On August 28, 2014, Officer Steven Bailey stopped Appellant as he 

drove behind a Target store in an area that was posted no trespassing. 

After a brief investigation, Officer Bailey arrested Appellant for the burglary 

of Paley’s residence. Subsequently, Melendez, Paley, and Buckalew 

identified Appellant via photo arrays. Appellant was not provided counsel 

during these photo arrays.

The procedural history of this case is as follows. The Commonwealth 

charged Appellant, via three separate criminal informations, with two counts 

of burglary,1two counts of trespass,2attempted burglary,3attempted 

trespass,4criminal mischief,5theft by unlawful taking,6attempted theft by 

 

1 18 Pa.C.S.A. § 3502(a)(1).

2 18 Pa.C.S.A. § 3503(a)(1)(ii).

3 18 Pa.C.S.A. §§ 901, 3502.

4 18 Pa.C.S.A. §§ 901, 3503.
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unlawful taking,7receiving stolen property,8and attempted receiving stolen 

property.9 

On March 30, 2015, Appellant filed a suppression motion. On July 22, 

2015, the Commonwealth filed a motion to consolidate the three criminal 

informations for a single trial. Prior to trial, the trial court conducted a 

combined pre-trial motions hearing. During the hearing, the trial court 

granted the Commonwealth’s consolidation motion and granted in part and 

denied in part Appellant’s suppression motion. 

On October 9, 2015, Appellant was convicted of all 11 charges. On 

January 22, 2016, the trial court sentenced him to an aggregate term of 8 to 

20 years’ imprisonment. This timely appeal followed.10

Appellant presents two issues for our review:

1. Did the trial court err in consolidating for trial two burglaries 

and one attempted burglary where the incidents were 

 

5 18 Pa.C.S.A. § 3304(a)(5).

6 18 Pa.C.S.A. § 3921(a).

7 18 Pa.C.S.A. §§ 901, 3921.

8 18 Pa.C.S.A. § 3925(a).

9 18 Pa.C.S.A. §§ 901, 3925.

10 On February 24, 2016, the trial court ordered Appellant to file a concise 

statement of errors complained of on appeal (“concise statement”). See

Pa.R.A.P. 1925(b). On April 13, 2016, Appellant filed his concise statement. 

On May 20, 2016, the trial court issued its Rule 1925(a) opinion. Both 

issues raised on appeal were included in Appellant’s concise statement. 
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factually distinct, occurred in different jurisdictions[,] and 

occurred over a six-week period?

2. Did the trial court err in failing to grant Appellant’s motion to 

suppress evidence obtained following: (1) a stop of 

Appellant’s car that was not supported by reasonable 

suspicion; (2) an arrest of Appellant that was not supported 

by probable cause; and (3) the denial of counsel to Appellant 

at a post-arrest photo display?

Appellant’s Brief at 5 (complete capitalization omitted). 

In his first issue, Appellant argues that the trial court erred by 

consolidating the three criminal informations for trial.11 “[T]he decision of 

whether to join or sever offenses for trial is within the discretion of the trial 

court, and such decision will not be reversed on appeal absent a manifest 

abuse of that discretion or a showing of prejudice and clear injustice to the 

defendant.” Commonwealth v. Stiles, 143 A.3d 968, 975 (Pa. Super. 

2016) (citation omitted).

Joinder of criminal informations for trial is governed by Pennsylvania 

Rule of Criminal Procedure 582, which provides, in relevant part:

Offenses charged in separate indictments or informations may 

be tried together if:

(a) the evidence of each of the offenses would be admissible in a 

separate trial for the other and is capable of separation by the 

jury so that there is no danger of confusion; or

(b) the offenses charged are based on the same act or 

transaction.

 

11 The Commonwealth contends that this issue is waived; however, our 

review of the certified record indicates that Appellant properly preserved this 

issue. 
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Pa.R.Crim.P. 582(A)(1). In this case, it is undisputed that the crimes were 

not based upon the same act or transaction. Thus, the three criminal 

informations could only be joined for trial if the requirements of Rule 

582(A)(1)(a) were satisfied. 

We agree with the trial court that the evidence of the other offenses 

would have been admissible in separate trials under Pennsylvania Rule of 

Evidence 404(b), which provides that prior bad acts evidence, while not 

admissible to show mere propensity, “may be admissible for another 

purpose, such as proving motive, opportunity, intent, preparation, plan, 

knowledge, identity, absence of mistake, or lack of accident. In a criminal 

case this evidence is admissible only if the probative value of the evidence 

outweighs its potential for unfair prejudice.” Pa.R.Evid. 404(b)(2). Although 

not included within the enumerated list of permissible uses in Rule 

404(b)(2), prior bad acts evidence may be admitted to assist in “proving the 

existence of a common scheme[.]” Commonwealth v. Arrington, 86 A.3d 

831, 842 (Pa. 2014).

In this case, the trial court explained that Appellant’s common scheme 

included burglarizing homes in suburban Philadelphia, during the middle of 

the day, and entering (or attempting to enter) at or near the rear of the 

residences. See Trial Court Opinion, 5/20/16, at 11, quoting N.T., 10/5/15, 

at 21. We agree that the evidence cited by the trial court proved the 

existence of a common scheme.
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We find instructive this Court’s decisions in Commonwealth v.

Armstrong, 74 A.3d 228 (Pa. Super. 2013), aff’d, 107 A.3d 735 (Pa. 2014) 

and Commonwealth v. Janda, 14 A.3d 147 (Pa. Super. 2011). In 

Armstrong, the defendant attempted to burglarize two residences two 

months apart. The two attempted burglaries were charged in separate 

criminal informations and the trial court granted the Commonwealth’s 

motion to consolidate the criminal informations for trial. On appeal, this 

Court affirmed, explaining that “the attempted burglaries . . . took place in 

close temporal and geographic proximity, [were] committed against women 

who were alone in their homes late at night, by attempting to pry open a 

window using a crowbar or metal tool.” Armstrong, 74 A.3d at 234. Thus, 

this Court concluded that the attempted burglaries would be admissible in 

the other trials under Rule 404(b) because they demonstrated a common 

scheme. See id. 

In Janda, the defendant was charged with nine burglaries via two 

separate criminal informations. The trial court granted the Commonwealth’s 

motion to join the two criminal informations for trial. On appeal, this Court 

found that evidence of the burglaries would have been admissible at 

separate trials under Rule 404(b) in order to prove a common scheme. See

Janda, 14 A.3d at 156. This Court reasoned that the “thefts took place over 

a span of several months. . . . Furthermore, the burglarized homes were 

located within approximately a five mile to six mile radius of one another. 
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Each of the residences was situated such that it was largely obscured from 

view from the vantage point of the road.” Id. (internal citation omitted).

In the case sub judice, the similarities of the offenses were akin to the 

similarities in Armstrong and Janda. The timeframe for the two burglaries 

and one attempted burglary in this case was shorter than the timeframe for 

the burglaries in Armstrong and Janda. Moreover, although they occurred 

in separate jurisdictions, the three residences were all in close geographic 

proximity. All of the burglaries were committed while women were present, 

in the daytime, and entry was made at or near the rear of the residence. 

Thus, we conclude that the trial court did not abuse its discretion in finding 

that the first prong of Rule 404(b)(2) was satisfied.

As to the second prong of Rule 404(b)(2), we conclude that the trial 

court did not abuse its discretion in finding that the probative value of the 

other crimes would outweigh any potential for unfair prejudice. Appellant 

argues that prejudice would have occurred in the two cases where no DNA 

was found at the crime scene. According to Appellant, the DNA evidence at 

one scene bolstered the credibility of the eyewitnesses who testified that he 

committed the other burglary and attempted burglary. Appellant ignores, 

however, that an expert would have testified in the Paley burglary trial that 

Appellant’s cellular telephone records placed him at or near the crime scene 

at the time of the burglary. Moreover, the eyewitness identifications in this 

case were not equivocal. Instead, they were made without hesitation. We 
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ascertain a high probative value and very little risk of unfair prejudice if the 

other burglaries were admitted. Thus, the second prong of Rule 404(b)(2) 

was satisfied. As such, the burglaries and attempted burglary would have 

been admissible at separate trials. 

The second prong of Rule 582(A)(1)(a) was also satisfied. The jury 

could easily separate the burglaries and attempted burglary. Each burglary 

and attempted burglary occurred on a different day, at a different residence, 

and involved different victims and witnesses. There was no danger that the 

jury would be confused by the joinder of the offenses into a single trial. 

Thus, we conclude that the trial court did not abuse its discretion in 

consolidating the three criminal informations for trial. 

In his second issue, Appellant argues that the trial court erred in 

denying his suppression motion. “Once a motion to suppress evidence has 

been filed, it is the Commonwealth’s burden to prove, by a preponderance of 

the evidence, that the challenged evidence was not obtained in violation of 

the defendant’s rights.” Commonwealth v. Evans, 2016 WL 7369120, *3 

(Pa. Super. Dec. 20, 2016) (citation omitted). “Our standard of review in 

addressing a challenge to a trial court’s denial of a suppression motion is 

whether the factual findings are supported by the record and whether the 

legal conclusions drawn from those facts are correct.” Commonwealth v. 

Simonson, 148 A.3d 792, 796 (Pa. Super. 2016) (citation omitted). “[O]ur 

scope of review is limited to the factual findings and legal conclusions of the 
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[trial] court.” In re L.J., 79 A.3d 1073, 1080 (Pa. 2013) (citation omitted). 

“Because the Commonwealth prevailed before the [trial] 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.” Commonwealth v. Valdivia, 145 A.3d 

1156, 1159 (Pa. Super. 2016) (citation omitted). “Where the [trial] court’s

factual findings are supported by the record, we are bound by these findings 

and may reverse only if the [trial] court’s legal conclusions are erroneous.” 

Commonwealth v. Palmer, 145 A.3d 170, 173 (Pa. Super. 2016) (citation 

omitted).

Appellant presents three discrete suppression challenges. In his first 

suppression challenge, Appellant argues that Officer Bailey lacked 

reasonable suspicion to stop him. In his second suppression challenge, 

Appellant argues that Officer Bailey lacked probable cause to arrest him. In 

his final suppression challenge, Appellant argues that the trial court should 

have suppressed Melendez’s, Paley’s, and Buckalew’s identifications of him 

as the perpetrator of the offenses. 

“The Fourth Amendment to the United States Constitution and Article 

I, Section 8 of the Pennsylvania Constitution protect individuals from 

unreasonable searches and seizures[.]” Commonwealth v. Korn, 139 A.3d 

249, 258 (Pa. Super. 2016), appeal denied, 2016 WL 6107660 (Pa. Oct. 18, 

2016) (citation omitted). “To safeguard these rights, courts require police to 
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articulate the basis for their interaction with citizens in three increasingly 

intrusive situations.” Commonwealth v. Clemens, 66 A.3d 373, 378 (Pa. 

Super. 2013) (internal alteration, quotation marks, and citation omitted). 

This Court has described the three types of police/citizen interactions, 

and the necessary justification for each, as follows:

The first of these is a “mere encounter” (or request for 

information) which need not be supported by any level of 

suspicion, but carries no official compulsion to stop or to 

respond. The second, an “investigative detention[,]” must be 

supported by a reasonable suspicion; it subjects a suspect to a 

stop and a period of detention, but does not involve such 

coercive conditions as to constitute the functional equivalent of 

an arrest. Finally, an arrest or “custodial detention” must be 

supported by probable cause.

Commonwealth v. Stilo, 138 A.3d 33, 36 (Pa. Super. 2016) (citation 

omitted).

It is undisputed that Officer Bailey needed reasonable suspicion to stop 

Appellant. See Commonwealth v. Salter, 121 A.3d 987, 992 (Pa. Super. 

2015) (citation omitted) (reasonable suspicion necessary to investigate 

possible criminal activity). As this Court has explained:

To establish grounds for reasonable suspicion, the officer must 

articulate specific observations which, in conjunction with 

reasonable inferences derived from those observations, led him 

reasonably to conclude, in light of his experience, that criminal 

activity was afoot and that the person he stopped was involved 

in that activity. The question of whether reasonable suspicion 

existed at the time the officer conducted the stop must be 

answered by examining the totality of the circumstances to 

determine whether the officer who initiated the stop had a 

particularized and objective basis for suspecting the individual 

stopped. Therefore, the fundamental inquiry of a reviewing 

court must be an objective one, namely, whether the facts 
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available to the officer at the moment of the stop warrant a 

person of reasonable caution in the belief that the action taken 

was appropriate.

Commonwealth v. Postie, 110 A.3d 1034, 1039–1040 (Pa. Super. 2015) 

(internal alterations and citation omitted).

In this case, Officer Bailey witnessed Appellant drive into an area 

marked “no trespassing” behind a closed Target store. N.T., 10/5/15, at 

119. This gave Officer Bailey reasonable suspicion to stop Appellant in order 

to investigate whether he was casing the store,

12 i.e., determining whether 

he could successfully burglarize the store, or committing a defiant 

trespass.13 See id. at 122. Accordingly, Officer Bailey’s stop of Appellant 

was supported by reasonable suspicion.14

Next, Appellant argues that Officer Bailey lacked probable cause to 

arrest him after the traffic stop. “The police have probable cause where the 

facts and circumstances within the officer’s knowledge are sufficient to 

 

12 Appellant’s citation to Commonwealth v. Williams, 429 A.2d 698 (Pa. 

Super. 1981) is unpersuasive. In that case, the defendants were in an 

“abandoned, private parking lot of a swimming pool which was being 

salvaged.” Id. at 699. In this case, Appellant was in the parking lot of a 

closed store.

13 See 18 Pa.C.S.A. § 3503(b)(1)(ii) (“A person commits an offense if, 

knowing that he is not licensed or privileged to do so, he enters or remains 

in any place as to which notice against trespass is given by . . . posting in a 

manner prescribed by law or reasonably likely to come to the attention of 

intruders[.]”). 

14 Moreover, for essentially the same reasons that we conclude infra that 

Officer Bailey had probable cause to arrest Appellant, we also conclude that 

Officer Bailey had reasonable suspicion to stop Appellant to investigate his 

involvement in the burglary of Paley’s residence. 
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warrant a person of reasonable caution in the belief that an offense has been

or is being committed.” Commonwealth v. Hernandez, 935 A.2d 1275, 

1284 (Pa. 2007) (citation omitted). “In determining whether probable cause 

exists, we [look at the] totality of the circumstances.” Commonwealth v. 

Fleet, 114 A.3d 840, 854 (Pa. Super. 2015) (citation omitted). 

At the time Officer Bailey arrested Appellant, he knew the following 

information: (1) Appellant previously was convicted of burglary, N.T., 

10/5/15, at 128; (2) Appellant matched the general description of the 

individual who burglarized Paley’s residence, id. at 123;15 (3) Appellant was 

driving a vehicle which matched the color, make, and model of the vehicle 

driven by the individual who burglarized Paley’s residence, id. at 109; (4) 

Appellant’s vehicle had a blue emblem on the right side of the trunk which 

matched the photograph of the suspect’s vehicle taken by Buckalew, id. at 

105; (5) Appellant’s license plate holder was made of chain link which 

matched the photograph of the suspect’s vehicle taken by Buckalew, id.; 

and (6) Appellant was one and one-half miles from Paley’s residence. Id. at 

114. As Appellant notes, however, other circumstances indicated that 

Appellant was not the individual who burglarized Paley’s residence. For 

example, he had short hair at the time of his arrest while the individual who 

 

15 Appellant argues that the trial court found this testimony not credible. 

See Appellant’s Brief at 21. His citation, however, is to the assistant district 

attorney’s argument on the suppression motion. 
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burglarized Paley’s residence had long hair. Furthermore, his license plate 

number did not match the license plate number in the photograph. 

We agree with the trial court that the totality of the circumstances 

established probable cause that Appellant was the suspect who burglarized 

Paley’s residence. Although Appellant’s hair was short at the time of the 

arrest, it only takes minutes for an individual to cut his hair in order to 

change his appearance. As to the license plate number, Officer Bailey knew 

that the license plate number from the photograph was recovered using 

photo enhancement techniques and, therefore, an error was possible. N.T., 

10/5/15, at 129. Detective Michael Moretti, the individual investigating the

burglary of Paley’s residence, and Officer Bailey agreed that Appellant’s 

vehicle was probably the vehicle photographed by Buckalew. Id. at 128. 

Thus, there were six circumstances that weighed heavily in favor of Officer 

Bailey believing that Appellant burglarized Paley’s residence while the 

circumstances that weighed against that inference were not weighty. As 

such, we conclude that the trial court properly found that Appellant’s arrest 

was supported by probable cause. 

Finally, Appellant argues that the trial court should have suppressed 

Melendez’s, Paley’s, and Buckalew’s in-court and out-of-court identifications 

of him as the perpetrator of the offenses. “In Pennsylvania, a defendant has 

a constitutional right to have counsel present during identification 

procedures.” Commonwealth v. Kearney, 92 A.3d 51, 67 (Pa. Super. 
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2014), appeal denied, 101 A.3d 102 (Pa. 2014) (citation omitted). A 

defendant, however, does not have a constitutional right to have counsel 

present during identification procedures if he is in custody for an offense 

different from that for which the photo array is compiled. Commonwealth 

v. Harrell, 65 A.3d 420, 438 (Pa. Super. 2013), appeal denied, 101 A.3d 

785 (Pa. 2014) (citation omitted); see Commonwealth v. Zabala, 456 

A.2d 622, 629 (Pa. Super. 1983).

In this case, Appellant was in custody for burglarizing Paley’s residence 

at the time the photo array was compiled for the attempted burglary of 

Melendez’s residence. Thus, Appellant did not have the constitutional right 

to have counsel present at the photo array shown to Melendez. 

As to the photo array identifications by Paley and Buckalew, the trial 

court granted in part and denied in part Appellant’s suppression motion. 

Specifically, the trial court suppressed Paley’s and Buckalew’s out-of-court 

identifications at the photo arrays because Appellant was denied counsel at 

those photo arrays. The trial court, however, permitted Paley and Buckalew 

to identify Appellant in court. After careful consideration, we conclude that 

the trial court did not abuse its discretion in permitting Paley and Buckalew 

to identify Appellant in court.

As this Court has explained:

When an out-of-court identification is alleged to be tainted, an 

in-court identification may still stand if, considering the totality 

of the circumstances, the identification had an origin sufficiently 

distinguishable to be purged of the primary taint. The factors a 
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court should consider in determining whether there was an 

independent basis for the identification include: (1) the 

opportunity of the witness to view the criminal at the time of the 

crime; (2) the witness[’] degree of attention; (3) the accuracy of 

the witness[’] prior description of the criminal; (4) the level of 

certainty demonstrated by the witness during the confrontation; 

and (5) the length of time between the crime and the 

confrontation. 

Commonwealth v. Kendricks, 30 A.3d 499, 506 (Pa. Super. 2011), appeal 

denied, 46 A.3d 716 (Pa. 2012) (internal quotation marks and citation 

omitted); see Commonwealth v. Carver, 436 A.2d 1209, 1211-1212 (Pa. 

Super. 1981)

As to the first factor, both Paley and Buckalew viewed Appellant for a 

relatively significant period of time, i.e., more than one minute.16 See N.T., 

10/6/15, at 28, 65.17 Moreover, both Paley and Buckalew were relatively 

close to Appellant when they viewed him during daylight without any 

obstructions in their lines of sight. See id. at 30, 59. As to the second 

factor, both Paley and Buckalew knew that they were witnessing a crime 

when they viewed Appellant. Thus, their degrees of attention were at their 

peak. See id. at 26; see also id. at 57. As to the fourth factor, Paley and 

Buckalew expressed a high degree of certainty that Appellant was the same 

person they saw fleeing Paley’s residence. See id. at 33, 66. Thus, the 

 

16 Appellant argues that it was only a few seconds; however, the trial court 

found Paley’s and Buckalew’s testimony that it was at least one minute 

credible. See Trial Court Opinion, 5/20/16, at 20. 

17 There are two volumes of testimony dated October 6, 2015. Our citation 

is to the volume in which pre-trial matters were litigated. 
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first, second, and fourth factors all weighed heavily in favor of finding that 

Paley’s and Buckalew’s in-court identifications were not tainted by their 

identifications at the photo arrays. 

As to the fifth factor, there was an approximate 14-month gap 

between the burglary of Paley’s residence and when Paley and Buckalew 

identified Appellant in court. While this is not a short amount of time, it is 

also not a long period of time. Thus, we conclude that the fifth factor was 

neutral. 

As to the third factor, both Paley and Buckalew’s physical descriptions 

of Appellant after the burglary were generally accurate. Their descriptions, 

however, also contained some inaccuracies. For example, Buckalew 

originally told police that the burglar was 6’3” tall and Appellant is 

significantly shorter than that height. 

When weighing all of these factors, the trial court determined that 

Paley’s and Buckalew’s in-court identifications were not tainted by their 

photo array identifications. We ascertain no abuse of discretion in this 

determination. The minor inconsistencies in conveying descriptions of 

Appellant were outweighed by the certainty of their in-court identifications 

made after viewing Appellant for a significant period of time, during daylight 

hours, and at the scene of a crime. Accordingly, we conclude that the trial 

court properly granted in part and denied in part Appellant’s motion to 

suppress as it related to the uncounseled photo arrays.
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/13/2017