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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

BRANDON KULB

Appellant : No. 4055 EDA 2017

Appeal from the Judgment of Sentence October 26, 2017

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0005518-2014

BEFORE: SHOGAN, J., NICHOLS, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.: FILED JULY 15, 2019

Appellant, Brandon Kulb, appeals from the judgment of sentence

entered on October 26, 2017, in the Philadelphia County Court of Common

Pleas. We affirm.

The record in this matter reveals that on March 20, 2014, Police Officer

Tiffany Perez was off duty, wearing street clothes, and driving her personal

vehicle on Edgemont Street in Philadelphia. N.T., 2/1/17, at 144-145.1 When

1 The certified record contains two versions of the notes of testimony from the

February 1, 2017 proceedings. One version ("Version I") contains the

complete notes of testimony from the February 1, 2017 proceedings, including

the disposition of Appellant's motion in limine and Appellant's not -guilty plea.

Version I is labeled "Trial (with a jury)." N.T., 2/1/17, at 1. In Version I, the

trial testimony begins on page 46. The second version ("Version II") contains

only trial testimony, and it is labeled "Trial Excerpt (with a jury)." N.T.,

2/1/17, at 1. In Version II, the trial testimony begins on page 4. Throughout

this Memorandum, we refer only to Version I.

Retired Senior Judge assigned to the Superior Court.
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Officer Perez reached Stokley Playground near the intersection of Edgemont

and Elkhart Streets, she heard several popping sounds, and she identified

these sounds as gunshots. Id. at 145. Officer Perez saw a man cross in front

of her vehicle running away from the playground. Id. This man was pursued

by two men, and Officer Perez saw one of the men pointing a firearm at the

fleeing man. Id. The individual brandishing and firing the gun was later

identified as Ryan DeOrio; DeOrio's companion was Appellant. Id. at 146.

Officer Perez positively identified Appellant in court as the man who was with

DeOrio as they pursued the third man. Id. Officer Perez testified that when

she heard the gunshots, she called 911 and followed Appellant and DeOrio.

Id. On -duty officers arrived and followed DeOrio and Appellant. Id. at 93.

The on -duty officers ultimately detained DeOrio and another man; however,

when Officer Perez arrived, she informed the officers that the man

apprehended with DeOrio was not Appellant. Id. at 155, 159. Appellant was

subsequently arrested on April 11, 2014. Complaint, 4/11/14.

On January 31, 2017, a hearing was held regarding

[A]ppellant's Pre -Trial Motion [in limine2] to Exclude Hearsay

Evidence, namely the proffered testimony of Police Officer

[James] Martin that two young boys had identified [Appellant] as

the shooter. At this hearing, Officer Martin testified that on March

20, 2014, he received, a radio call for a possible shooting near

Stokley Playground. N.T. 1-31-17, p. 14. Upon arriving within a

few blocks of the playground he saw children running from the

area, including two boys who ran over to him while he was still in

his police vehicle. Officer Martin testified that the boys were

"extremely terrified." He thought they were around nine or ten

2 The trial court treated this as a motion in limine. N.T., 2/1/17, at 9.

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years old, and one of them was crying. N.T. 1-31-17, p. 15. Officer

Martin testified that the children told him "a male had fired a gun

in the playground and the male's name was [Appellant]." Id. at p.

15. He described both boys as running quickly, shaking, looking

terrified, and one boy's eyes were red and he appeared to be

crying. N.T. 1-31-17, pp. 29-30.

Officer Martin testified that while he was with the boys he

relayed over his police radio that the children had identified

[Appellant] as the shooter. The original call that dispatched Officer

Martin to the playground was issued at 6:37 pm on March 20,

2017. N.T. 1-31-17, pp. 26-27. The automatic timestamp of the

recording of Officer Martin's outgoing radio call disseminating the

information the children had given him was ten (10) minutes later

at 6:47 pm. N.T. 1-31-17, p. 27.

Trial Court Opinion, 8/6/18, at 3-4.

[Appellant] was found guilty of Aggravated Assault, ... Conspiracy to Commit Aggravated Assault, Firearms Not to be

Carried Without a License, and Carrying a Firearm in Public in

Philadelphia.' These charges arose from a shooting that took place

on March 20, 2014, at Stokley Playground, in the Port Richmond

area of Philadelphia. Jury selection took place on January 31,

2017, with twelve jurors and two alternates selected. On February

1, 2017, the jury was sworn in and trial began, with the

prosecution and defense both resting on February 2, 2017. The

jury returned its verdict on February 6, 2017, finding [A]ppellant

guilty of the above charges.

' 18 Pa.C.S.A. § 2702§§A, § [903], § 6106 §§A1, and

§ 6108[.] * * * Sentencing was deferred until October 26, 2017, at which

time [A]ppellant was sentenced to an aggregate term of 14 to 28

years' state confinement. A Motion for Reconsideration of

Sentence was filed on November 2, 2017, and subsequently

denied by this court on November 16, 2017. A timely appeal

followed.

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Trial Court Opinion, 8/6/18, at 1-2. Both the trial court and Appellant

complied with Pa.R.A.P. 1925.

On appeal, Appellant presents three issues for this Court's

consideration:

[1.] Whether the trial court erred in permitting hearsay testimony

from witnesses, namely Police Officer James Martin, who was

permitted to testify, and a Police Radio call with Police Officer

Martin speaking that was played, that relayed that two

unidentified juveniles told Officer Martin that [Appellant] had

committed the shooting at issue, where no independent evidence

was presented that the declarants either witnessed the incident or

knew the [Appellant] by name?

[2.] Whether the trial court erred in permitting Police Officer

Tiffany Perez to make an in -court identification at trial, after ruling

that her identification of the [Appellant] through a single photo

was suggestive and inadmissible, and where the Officer lacked an

independent basis to make the in -court identification nearly three

years later?

[3.] Whether the trial court erred in permitting irrelevant and

unfairly prejudicial statements, as well as statements that spoke

of [Appellant's] Fifth Amendment Right to remain silent, made by

[Appellant] on his recorded prison phone calls, to be played for

the jury?

Appellant's Brief at 5.

Appellant's issues concern the admissibility of evidence. It is well settled

that the admissibility of evidence lies within the sound discretion of the trial

court and will not be disturbed absent an abuse of discretion.

Commonwealth v. Bidwell, 195 A.3d 610, 616 (Pa. Super. 2018). "An

abuse of discretion is not merely an error of judgment, but is rather the

overriding or misapplication of the law, or the exercise of judgment that is

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manifestly unreasonable, or the result of bias, prejudice, ill -will or partiality,

as shown by the evidence of record." Id. (citation omitted).

In his first issue, Appellant avers the trial court erred in denying his

motion in limine to exclude hearsay and argues that the trial court erred in

applying the excited utterance exception to the prohibition on hearsay.

Specifically, Appellant asserts that there was no independent corroboration of

statements made to Officer James Martin by two juveniles who allegedly

identified Appellant as the shooter at Stokley Playground. Appellant's Brief at

12. For this same reason, Appellant asserts that the trial court also erred in

permitting the prosecution to play a recording of the police radio call in which

Officer Martin relayed the juveniles' statements. Id. at 13-16. After review,

we conclude that no relief is due.

Our standard of review of a denial of a motion in limine is as follows:

When ruling on a trial court's decision to grant or deny a

motion in limine, we apply an evidentiary abuse of discretion

standard of review. The admission of evidence is committed to the

sound discretion of the trial court, and a trial court's ruling

regarding the admission of evidence will not be disturbed on

appeal unless that ruling reflects manifest unreasonableness, or

partiality, prejudice, bias, or ill -will, or such lack of support to be

clearly erroneous.

Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010) (citation

omitted). Hearsay is defined as an out -of -court statement offered for the

truth of the matter asserted, and it is generally inadmissible unless it falls

within an exception to the hearsay rule set forth in the Pennsylvania Rules of

Evidence. Commonwealth v. Manivannan, 186 A.3d 472, 482 (Pa. Super.

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2018) (citing Commonwealth v. Mosley, 114 A.3d 1072, 1084 (Pa. Super.

2015); Pa.R.E. 801 and 802). Here, the trial court concluded that the

statements made by the juveniles were admissible under the excited utterance

exception. Trial Court Opinion, 8/6/18, at 5. "[A]n excited utterance is [a]

statement relating to a startling event or condition made while the declarant

was under the stress of excitement caused by the event or condition."

Commonwealth v. Mollett, 5 A.3d 291, 310 (Pa. Super. 2010) (citing

Pa.R.E. Rule 803(2)). "When the declarant is unidentified, the proponent shall

show by independent corroborating evidence that the declarant actually

perceived the startling event or condition." Pa.R.E. Rule 803(2).

As noted, Appellant is challenging the admissibility and use of the

juveniles' statement to Officer Martin. Officer Martin testified that within

minutes of the reports of a shooting at the playground, he encountered two

juveniles who were crying. N.T., 1/31/17, at 15. Officer Martin relayed the

juveniles' statements over the police radio stating that the juveniles identified

Appellant by name and asserted that Appellant was the shooter. Id.

The trial court concluded that the juveniles' statements to Officer Martin

were made close in time to the shooting at the playground and under the

stress of immediately experiencing the shooting. Trial Court Opinion, 8/6/18,

at 5-6 (citing N.T., 2/1/17, at 5-9). Based on the record before us, we discern

no abuse of discretion in this regard.

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However, Appellant focuses on the second requirement of the excited

utterance exception when the declarant is unavailable to testify: the

corroboration component from Pa.R.E. 803(2). Appellant's Brief at 13.

Appellant avers that there was no corroboration, and, therefore, the trial court

abused its discretion in allowing Officer Martin to testify relative to what the

juveniles said. After careful review, we disagree.

Our scope of review of orders granting or denying motions to suppress

is limited to the evidence presented at the suppression hearing. In re L.1.,

79 A.3d 1073, 1085 (Pa. 2013). We point out that although Appellant filed a

motion to suppress Officer Perez's identification of Appellant, we are not now

reviewing the ruling on the suppression motion; we are reviewing an order

disposing of a pretrial motion in limine concerning hearsay. A motion in limine

differs from a suppression motion in that a suppression motion is filed in an

effort to preclude evidence allegedly obtained in violation of a defendant's

constitutional rights, while a motion in limine is filed in an effort to preclude

evidence that was constitutionally obtained but is prejudicial to the moving

party. Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011).

Appellant's motion to suppress was based on an alleged due process violation.

Motion to Suppress, 1/5/17. The issue currently under review is the ruling on

Appellant's motion in limine to preclude hearsay that was premised on a

violation of the Pennsylvania Rules of Evidence. N.T., 1/31/17, at 9.

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Prior to trial, the trial court held a hearing on January 30, 2017, to

address Appellant's suppression motion concerning Officer Perez's

identification of Appellant. The next day, January 31, 2017, the trial court

held a hearing on Appellant's motion in limine regarding the use of statements

made by the unidentified juveniles to Officer Martin. As noted above, in

reviewing a ruling on a motion to suppress, we are limited to the record in the

suppression court. L.1., 79 A.3d at 1085. Here, however, we are reviewing

an evidentiary ruling on a motion in limine, and we discern no such limitation.

We conclude that in ruling on the motion in limine, the trial court was

permitted to consider the entire record, including the suppression hearing.

There was ample corroboration for the juveniles' statements in the

record. At the time of the hearing on the motion in limine, the trial court

already had heard Officer Perez's suppression -hearing testimony concerning

her identification of Appellant as the shooter. Officer Perez's statements

corroborated the juveniles' statements in that she heard gunshots, observed

people fleeing the playground, witnessed DeOrio holding a gun, saw Appellant

with DeOrio, and watched as DeOrio and Appellant followed a man from the

area. N.T., 2/1/17, at 144-159.3 Accordingly, we conclude there was no

3 The motion in limine was held prior to the introduction of evidence at trial.

Thus, the grand jury testimony had not yet been admitted at the time of the

hearing on Appellant's motion in limine. Nevertheless, the grand jury

testimony provided additional independent corroboration for the juveniles'

statements, and it could have been proffered if the trial court concluded that

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abuse of discretion in the trial court's conclusion that the juveniles'

identification of Appellant was an excited utterance and was admitted and

utilized properly through Officer Martin's testimony and police radio call as an

exception to the prohibition on hearsay.

In his second issue on appeal, Appellant asserts that the trial court

abused its discretion in permitting Officer Perez to make an in -court

identification of him at trial because her prior out -of -court identification was

inadmissible. Appellant's Brief at 16. After review, we conclude that no relief

is due.

Appellant filed an omnibus pretrial motion including a motion to

suppress Officer Perez's identification of Appellant. Motion, 8/26/15, at

unnumbered 2. At the January 30, 2017 hearing on Appellant's motion, it was

revealed that on the day of the shooting, March 20, 2014, when off -duty

Officer Perez followed Appellant and DeOrio, responding officers showed

Officer Perez's statements were not sufficient independent corroboration.

Specifically, in his testimony before the grand jury, the victim identified

Appellant as the man who shot him. N.T., Grand Jury Testimony, 5/9/14, at

6. The victim referred to Appellant as "B -Dot," and Detective Kenneth Rossiter

testified that Appellant's alias is B -Dot. Id. at 24. The grand jury transcript

was marked as Commonwealth's Exhibit C-20 and admitted without objection.

N.T., 2/2/17, at 227-229. We point out that despite his testimony before the

grand jury, the victim, while admitting that he was shot on March 20, 2014,

at Stokley playground, refused to identify Appellant as the shooter in court.

N.T., 2/1/17 at 83-128. However, in addition to his grand jury testimony, the

victim's pretrial interview, Commonwealth's Exhibit C-6, in which the victim

identified Appellant as the shooter, was admitted into evidence as well. N.T.,

2/2/17, at 227-229.

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Officer Perez a photograph of Appellant on a computer in a police vehicle. N.T.,

1/30/17, at 13-16. This was not an array of pictures; it was a single image

of Appellant, and Officer Perez identified Appellant as one of the conspirators.

Id. at 24. Appellant moved the trial court to suppress Officer Perez's

identification of Appellant from the photograph and asked the court to prohibit

Officer Perez from identifying Appellant in court. Id. at 37. The next day, the

trial court granted Appellant's motion regarding Officer Perez's out -of -court

identification of Appellant in the photograph concluding the single image was

overly suggestive. N.T., 1/31/17, at 6; Order, 1/31/17. However, the trial

court denied the motion with respect to Officer Perez making an in -court

identification. Id.; Order, 1/31/17.

When addressing an appeal from the denial of a motion to suppress, our

Supreme Court has stated the following:

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. When reviewing the ruling of a

suppression court, we must consider only the evidence of the

prosecution and so much of the evidence of the defense as

remains uncontradicted when read in the context of the record....

Where the record supports the findings of the suppression court,

we are bound by those facts and may reverse only if the legal

conclusions drawn therefrom are in error.

Commonwealth v. Eichinger, 915 A.2d 1122, 1134 (Pa. 2007) (citations

omitted). Further, "[i]t 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. Gallagher, 896 A.2d 583, 585 (Pa.

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Super. 2006). We reiterate that our scope of review is limited to the evidence

presented at the suppression hearing. L..7., 79 A.3d at 1085.

A prior identification by a witness, which is suppressed due to its

suggestive nature, does not preclude a later in -court identification.

Commonwealth v. James, 486 A.2d 376, 380 (Pa. 1985). A subsequent

identification may be permitted when there is an independent basis for the

identification. Id. In determining whether an independent basis exists, we

consider the following factors:

the 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. (quoting Commonwealth v. Slaughter, 394 A.2d 453, 457 (Pa. 1978);

see also Niel v. Biggers, 409 U.S. 188 (1972)).

The trial court concluded that there was an independent basis for Officer

Perez's in -court identification. The trial court reached this conclusion based

on Officer Perez's ability to observe Appellant at the scene of the shooting,

her background as a police officer, her description of Appellant, and the fact

that there was no misidentification. Trial Court Opinion, 8/6/18, at 13 (citing

N.T., 1/31/17, at 5-7). Moreover, Officer Perez correctly recognized that when

DeOrio was apprehended, the individual with him was not Appellant. N.T.,

2/1/17, at 155, 159. Considering our scope and standard of review, we
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discern no basis upon which to disturb the trial court's decision on Appellant's

suppression motion.

Finally, Appellant avers that the trial court abused its discretion in

allowing the jury to hear unfairly prejudicial statements that allegedly

infringed on Appellant's Fifth Amendment right to remain silent. These

recordings were made during Appellant's phone calls while incarcerated.

Appellant's argument on this issue is vague and undeveloped. It is a general

claim assailing the use at trial of recorded prison telephone conversations and

averment that these recordings violated Appellant's rights under the Fifth

Amendment. Appellant's Brief at 18-19. The trial court addressed this issue

as follows:

Appellant's Fifth Amendment argument is wholly without

merit. It is well -established law that recorded prison phone calls

may be used as evidence for the investigation or prosecution of

any crime, pursuant to [18 Pa.C.S. § 5704 (14)(i)(A) and (C)] of

the Wiretap Act, which states:

It shall not be unlawful and no prior court approval shall be

required under this chapter for:

(i) The county correctional facility shall adhere to the

following procedures and restrictions when intercepting,

recording, monitoring or divulging an oral communication,

electronic communication or wire communication from or to

an inmate in a county correctional facility as provided for by

this paragraph:

(A) Before the implementation of this paragraph, all

inmates of the facility shall be notified in writing that,

as of the effective date of this paragraph, their oral

communications, electronic communications or wire

communications may be intercepted, recorded,

monitored or divulged.

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(C) The contents of an intercepted and recorded oral

communication, electronic communication or wire

communication shall be divulged only as is necessary

to safeguard the orderly operation of the facility, in

response to a court order or in the prosecution or

investigation of any crime.

[18 Pa.C.S. § 5704 (14)(i)(A) and (C)].

Every time an inmate makes a telephone call from a

Philadelphia County correctional facility, an automated message

at the beginning of the call notifies both the inmate and the call

recipient that, "You have a global link prepaid call from [caller's

name], an inmate at the Philadelphia prison system. The use of

three-way or call waiting will disconnect the call. This call will be

recorded and monitored...[.]" (emphasis added). Prison Call

Trans. 4-12-14, p. 1. This message provides the inmate with

actual notice that the phone call is being recorded, which the

Pennsylvania Supreme Court deemed sufficient in lieu of written

notice required by §5704(14)(i)(A) of the statute above in

Commonwealth v. Baumhammers, 960 A.2d 59 (2008). There,

the defendant contended that "it was irrelevant that he was under

actual notice that his telephone conversation was being

intercepted and recorded, when the statute required that he

receive prior written notice." Id. at 78. However, the court held,

... there is no basis to conclude that the privacy rights of

[Baumhammers] or his parents were infringed when their

March 2, 2001 telephone conversation was recorded. These

individuals were actually aware that their telephone

conversation was being or could be intercepted and

recorded by prison authorities. Written notice to

[Baumhammers], assuming he never received any, would

not have afforded him any greater protection of his right to

privacy or that of his parents than the actual notice they

possessed at the time of the conversation. Therefore, on this

basis alone, [Baumhammers's] argument is wholly without

merit.

Id. at 79.

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Additionally, citing § 5704(14)(i)(C) of the Wiretap Act, the

court in Baumhammers held "there is no basis for

[Baumhammers's] supplemental argument that Section

5704(14)(i)(C) of the Wiretap Act was violated when the contents

of the telephone conversation at issue were divulged to an

investigating detective and to the Commonwealth's psychiatric

expert" because it specifically allows the contents of a recorded

prison telephone call to be used in the prosecution or investigation

of any crime. Id.

Therefore, [A]ppellant's argument that his Fifth Amendment

rights were violated is without merit and this portion of the

recorded prison telephone call was properly admitted into

evidence and played for the jury.

Trial Court Opinion, 8/6/18, at 8-10.

We agree with the trial court. Here, Appellant had actual notice that his

telephone conversations made while incarcerated would be recorded and could

be used in the prosecution. Thus, any expectation of privacy or Fifth

Amendment protection from self-incrimination was waived when Appellant

chose to engage in recorded conversations while in prison.

For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm Appellant's judgment of sentence.

Judgment of sentence affirmed.

Judge Strassburger joins this Memorandum.

Judge Nichols concurs in the result.

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Judgment Entered.

Jseph D. Seletyn,

Prothonotary

Date: 7/15/19

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