J-A12033-16

*Former Justice specially 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.

MARKEL DAVIS, 

Appellant No. 2489 EDA 2014

Appeal from the Judgment of Sentence August 8, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0014344-2013

BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 09, 2016

This is an appeal from the judgment of sentence entered in the Court 

of Common Pleas of Philadelphia County following Appellant’s conviction by a 

jury on the charges of aggravated assault, carrying a firearm without a 

license, carrying firearms in public in Philadelphia, possessing an instrument 

of crime, and conspiracy.1 Appellant contends (1) the evidence was 

insufficient to sustain his convictions; (2) the suppression court erred in 

failing to suppress the victim’s out-of-court identification of Appellant as the 

____________________________________________

1 18 Pa.C.S.A. §§ 2702(a)(1), 6106(a)(1), 6108, 907(a), and 903(c), 

respectively. The jury acquitted Appellant on the charges of attempted 

murder, 18 Pa.C.S.A. § 901(a), and conspiracy (to commit attempted 

murder), 18 Pa.C.S.A. § 903(c). 
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shooter; and (3) the trial court erred in failing to give a Kloiber2

instruction.3 We affirm. 

The relevant facts and procedural history are as follows: Following the 

shooting of Enrico Lofton (“Lofton”), Appellant was arrested, and, on March 

19, 2014, he filed a counseled, pre-trial motion seeking, inter alia, to 

suppress Lofton’s out-of-court identification of Appellant as the shooter. 

Specifically, Appellant alleged the circumstances revealed that Lofton did not 

observe the person who shot him, and Lofton chose Appellant’s photo from a 

photo array solely because of unnecessarily suggestive police procedures. 

See Appellant’s Motion, filed 3/19/14, at 5-8. 

On May 5, 2014, the suppression court held a hearing, at which Lofton 

and Detective John Landis, the officer who had conducted the photo array, 

testified. Specifically, Lofton testified that, on September 9, 2013, he was 

shot. N.T., 5/5/14, at 21-22. He indicated that, two weeks prior to the 

shooting, his paramour’s mother talked to him about her fifteen-year-old 

son, Carlos, selling illegal drugs. Id. at 22-23. She asked Lofton to talk to 

Carlos, and after he did so, Carlos took him to Mifflin Street during the 

daylight hours and pointed out the two men for whom he was selling drugs. 

Id. at 23-24. Lofton approached the two men, stood face to face with them, 

and told them to leave Carlos alone. Id. at 24-25. The men agreed; 

____________________________________________

2 Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954). 

3 We have renumbered Appellant’s issues for ease of discussion.
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however, during the evening of September 9, 2013, Lofton saw the two men 

with Carlos outside of Carlos’ house. Id. at 26-28. Lofton testified that, in 

the street where there were lights, he exchanged words with the two men, 

whose faces were not covered. Id. at 28, 35, 45. He indicated the two men 

were disrespecting him, and after about five minutes, the men started to 

ride off together on bikes but within a few seconds one of them shot him. 

Id. at 29, 45. 

After he was shot, the police took him to the hospital, and they 

showed him two photo arrays. Id. at 30-31. Lofton relevantly testified as 

follows regarding the photo arrays:

[ADA]: Do you remember how many photo arrays they 

showed you?

THE COURT: Why don’t you explain what a photo array is.

[ADA]: So a photo array is a piece of paper with eight 

pictures on it.

[LOFTON]: I know.

[ADA]: You know. Do you remember if from the first 

photo array [ ] you identified anybody?

[LOFTON]: I really don’t remember. I was a little 

medicated. Percocet.

[ADA]: Do you remember recognizing faces?

[LOFTON]: Yeah.

[ADA]: Do you remember if you identified the person that 

was the shooter?

[LOFTON]: Yeah.

[ADA]: And did you identify the other person that was out 

there as well?

[LOFTON]: Yeah.

[ADA]: Did you know either of their names?

[LOFTON]: No.

[ADA]: And did you—how did you memorialize your 

identification? In other words, did you circle anything? Did you 

write your name? Do you remember that?

[LOFTON]: I just circled the picture. That was it.
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[ADA]: Okay.

***

[ADA]: Did you circle a picture in each of the photo arrays 

that you were shown?

[LOFTON]: Yeah.

[ADA]: And that was shown to you by Detective Landis

and Detective Ferry?

[LOFTON]: Yeah.

[ADA]: Did they say anything else to you when they 

showed you those photo arrays?

[LOFTON]: That was it. They showed me the photos to 

identify anybody that was out there and circle the picture.

[ADA]: And how sure were you that those were the two 

people that were out there and shot at you?

[LOFTON]: I’m good with faces. 

***

THE COURT: Did the police tell you who to identify?

[LOFTON]: No.

Id. at 30-32. 

On cross-examination, Lofton admitted that, when he was shot, he 

was on probation for prior drug dealing convictions. Id. at 34-35. Lofton 

indicated that he was shot in the street, and he denied that he was shot in 

an alley. Id. at 35. He denied telling the police that both men involved in 

the shooting had beards. Id. at 36. However, he indicated he told the 

police that one man was heavy set with brown skin and a beard, while the 

other man was skinny with light skin. Id. at 43. 

Lofton testified that, after he gave a description of the men to the 

police, they returned with photo arrays, and when the police showed him the 

photo arrays, they simply said “identify anybody that was out there.” Id. at 

36-37, 44. Lofton admitted he looked at the photo arrays for about fifteen 

minutes before he circled the photos of Appellant and his cohort, Nafeese 
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Turner (“Turner”); however, he explained that he was medicated. Id. at 38-

39. Lofton indicated that, during the time he looked at the photo arrays, the 

police just said, “identify anybody that was out there.” Id. at 38. After 

Lofton circled Appellant’s and Turner’s photos, the police asked him if he 

“was sure,” to which Lofton replied, “Yeah.” Id. at 43. Lofton denied that, 

prior to circling the photographs, the police mentioned the fact he was being 

charged with new drug crimes. Id.

On redirect-examination, Lofton admitted that he was guessing as to 

the length of time he looked at the photo arrays before choosing Appellant’s 

and Turner’s photos. Id. at 46-47. He noted he was sluggish from the 

medication. Id.

Detective Landis testified he did not take a formal statement from 

Lofton on the day of the shooting; however, he returned to the hospital the 

next day with his partner. Id. at 54-55. Based on the investigation, he 

prepared two colored photo arrays, each containing eight photographs. Id.

at 55-56. Detective Landis showed Lofton the photo arrays and asked him 

if he recognized anyone in the photo arrays. Id. at 56. Detective Landis 

testified that, when he showed Lofton the first photo array, “[h]e 

immediately pointed on the first [array] to [Appellant], who was positioned, 

I believe, bottom row, second from the far right.” Id. Lofton circled 

Appellant’s photo and signed his name next to it. Id. at 56-57, 60. Lofton 

then indicated “[h]e’s the guy that shot me last night.” Id. at 61. 
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Additionally, when Detective Landis showed Lofton the second photo array, 

Lofton circled Turner’s photo and signed his name next to it. Id. at 63. 

Detective Landis indicated that, after he showed Lofton the photo 

arrays, he took a formal statement of the shooting from him. Id. Detective 

Landis indicated that, when he showed Lofton the photo arrays and spoke to 

him, Lofton was “very coherent” and understood what he was being asked. 

Id. at 64. 

On cross-examination, Detective Landis indicated that he prepared the 

photo arrays based on neighborhood interviews, processing the crime scene, 

collecting evidence, and “the intel he had at the time[.]” Id. at 66, 70. He 

further indicated he had spoken to other officers about the case and was 

aware of the responding officers’ broadcasting of general descriptions. Id.

at 68-69. He testified that he could not remember “off the top of [his] head” 

the precise descriptions provided by the responding officers. Id. at 69. 

Also, he indicated that, following the shooting, the police received a phone 

call in which the caller provided the police with the name of two suspects, 

Markel and Duda. Id. at 70-71. 

Detective Landis then testified as follows:

[DEFENSE COUNSEL]: So the information you had was 

that somebody named Markel was a suspect?

[DETECTIVE LANDIS]: Correct.

***

[DEFENSE COUNSEL]: How did you end up with these 

pictures on these pieces of paper?

THE COURT: Okay. And if I can clarify and add to it, I 

think [defense counsel] is also asking from the name of Markel, 
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how do you—from the first name of Markel, how did you then 

come up with both [Appellant] and also all the other people in 

the photo spread? Is that basically your question?

[DEFENSE COUNSEL]: Yes.

THE COURT: Okay.

[DETECTIVE LANDIS]: Well, we went through the 

database of the targeted area. Then we went through all the 

Markels from that targeted area. Then when [w]e went to the 

description of each person, does it meet the actual description of 

our target based on intel and the information we have of who 

this possible shooter is. That’s where we develop [Appellant].

As far as Duda went, we have an intel database that we 

keep in-house for nicknames.

***

[DEFENSE COUNSEL]: So when you created the photo 

arrays that I believe is marked C-1 with [Appellant] in it—

[DETECTIVE LANDIS]: Correct.

[DEFENSE COUNSEL]:--you put in your database the 

name Markel and a description?

[DETECTIVE LANDIS]: No.

[DEFENSE COUNSEL]: No?

[DETECTIVE LANDIS]: Once I identify a target or 

subject—

[DEFENSE COUNSEL]: Right.

[DETECTIVE LANDIS]: --I put him—once I identify him, I 

put him in there. Then I go get seven additional guys that look 

like him, normally not from that [sic] the area. 

[DEFENSE COUNSEL]: Okay. So before you put this 

picture of [Appellant] in the photo array marked as C-1 you had 

already identified him as a suspect?

[DETECTIVE LANDIS]: As a suspect target, yes.

[DEFENSE COUNSEL]: Okay. What information did you 

use to identify him as a suspect before you put him in the photo 

array?

***

[DETECTIVE LANDIS]: The information received from 

the investigation, the two nicknames, that’s what we went with.

Id. at 71-74.

Following the hearing, the suppression court denied Appellant’s 

motion, and Appellant proceeded to a jury trial with Turner as his co-
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defendant. At trial, the Commonwealth offered the testimony of several 

witnesses; however, the defense offered no witnesses. 

Specifically, Police Officer Robert Ellis testified that, on September 9, 

2013, he was on patrol with his partner, Police Officer Cyrus Pollard, when 

they received a radio call for shots fired initially “in the 1800 block of Corlies 

Street, and then. . .3018 Mifflin Street[,]” which is in a “nice neighborhood.” 

N.T., 5/7/14, at 139, 148. Officer Ellis testified the officers arrived at the 

3018 Mifflin Street residence within three to five minutes of receiving the 

radio call, and they were the third police vehicle to arrive. Id. at 140. 

Officer Ellis exited the police vehicle and followed other responding officers 

into the house where he immediately noticed Lofton had been shot in the 

arm. Id. at 141. Lofton yelled out, “I was in a[n] argument.” Id. at 170, 

176. Officer Ellis also observed a male teenager, who was small, thin, and 

light-skinned, inside of the house. Id. at 141, 144. However, since Lofton 

was clearly in pain and bleeding profusely, Officer Ellis’ focus remained on 

Lofton. Id. at 141-143. Officer Ellis assisted Lofton to a police vehicle and 

then transported him to the hospital, where hospital personnel discovered 

narcotics on Lofton’s person. Id. at 145. 

Officer Ellis indicated that, during the transport, Lofton said he was 

shot in the driveway of 1818 Corlies Street, which is approximately 150 feet 

from 3018 Mifflin Street, and his “little brother” was with him during the 

shooting. Id. at 150-51, 164. Upon arrival at the hospital, Lofton provided 
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the police with a description of two men, who were involved in the shooting. 

Id. at 166-67, 176. Specifically, Lofton told the officers two black males 

were involved, both of whom wore dark clothing. Id. at 167. Lofton further 

indicated one of the men was approximately 5’10’’ tall, weighed 

approximately 180 pounds, and had a full beard. Id. Lofton then asked the 

officers if his “little brother” was still in the house, and Officer Ellis assumed 

he was talking about the teenager he had noticed previously in the house. 

Id. at 164. Officer Ellis and his partner immediately radioed to their fellow 

officers all of the information that they had gathered from Lofton. Id. at 

167. 

Officer Pollard confirmed that upon arrival Officer Ellis ran into the 

house at 3018 Mifflin Street; however, he remained outside. Id. at 179. At 

the hospital, he was present when a package of narcotics fell out of Lofton’s 

pocket as hospital personnel were cutting off his clothes. Id. at 181. 

Lofton testified he was convicted of “dealing heroin” in 2011 and 2012, 

and he was on probation when he was shot on September 9, 2013. N.T., 

5/8/14, at 23-24. Lofton testified that he spent a lot of time with his 

paramour, and he treated her fifteen-year-old brother, Carlos, as his little 

brother. Id. at 25-27. He indicated he took Carlos “under [his] wing like 

[a] little brother.” Id. at 27. 

At some point, Lofton’s paramour’s mother talked to him about the 

fact Carlos was “running the streets and selling drugs.” Id. Because Lofton 
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did not want to see Carlos follow in his footsteps, he talked to the teenager, 

who told him the people for whom he was selling drugs. Id. at 27-28. 

Carlos also turned over to Lofton a pack of crack cocaine, which the men had 

given him to sell. Id. at 30. 

Lofton decided to confront the men, so about two weeks prior to the 

shooting, during the daylight hours, he travelled with Carlos to Mifflin Street. 

Carlos then pointed out the two people for whom he was selling drugs. Id.

at 28-29. Lofton confirmed the two men to which Carlos pointed were 

Appellant and Turner. Id. at 29. 

Lofton testified he walked up to the two men, stood four feet from 

them, told them to leave Carlos alone because he was “too young for the 

business,” and gave them back the crack cocaine. Id. at 30-31. Lofton 

indicated the two men were standing “side by side,” he could clearly see 

their faces, and when he told them to leave the teenager alone, Appellant 

said he “respected that.” Id. at 32. Lofton said he then “fist bumped” the 

two men and left the conversation on good terms. Id. at 33. 

However, two weeks later, Lofton was inside the residence at 3018 

Mifflin Street watching a football game when he heard a commotion going on 

outside. Id. at 34. He went outside and saw Carlos standing with Appellant 

and Turner. Id. Lofton then testified the following occurred: 

Q: And what did you do when you went outside?

A: Confronted them again.

***

Q: What did you say?
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A: We started arguing back and forth.

***

Q: Carlos there?

A: Yes.

Q: And what did you find out at that time?

A: That he gave Carlos something.

Q: I can’t understand you.

A: He gave Carlos drugs, and I asked Carlos where it’s at, 

and he acted like he didn’t want to give it to me, so I took it 

from him.

THE COURT: I’m sorry. I didn’t hear that.

Q: You [have] to speak up, [Lofton].

A: What I say—I said I guess they gave Carlos drugs 

again, and I asked Carlos where was it at, and he said he’s not 

giving it to me. So I checked Carlos and I took it from him.

Q: Did Carlos have drugs on him?

A: Yes.

Q: What kind of drugs did he have on him then?

A: Heroin.

Q: Anything else?

A: Crack.

Q: And where was it that you took [the drugs] from him?

A: His waistband.

Q: Did he tell you—did Carlos tell you anything about what 

they were arguing over?

A: No.

***

Q: So you took the drugs from Carlos. What did you do 

with them?

A: I told them they ain’t getting them back.

Q: You told who they ain’t getting them back?

A: Those two.

Q: Indicating the defendants, [Appellant and Turner]?

A: Yes.

Q: What did they do—or what did they say when you said 

that?

A: They said, who the fuck I think I am, and that’s when I 

said—

Q: I need you to talk—

A: They asked who the fuck do I think I am, and I asked 

who the fuck they think they be.

Q: Okay. So then what happened?
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A: I don’t remember, just standing there, but—I forgot 

what they said, but that’s when they rode off and I walked off. 

And shots were fired.

Q: Who said that? Who said, “Who the F do you think you 

are?”

A: I believe [Turner]. 

Q: [Turner] said that? Did [Appellant] say anything?

A: No. He just looking stupid.

Q: I’m sorry.

A: He looking stupid.

Q: How far apart were they when [Turner] said that?

A: Side by side, I guess. Side by side.

Q: Side by side?

A: Yes.

***

Q: I’m going to ask you again to tell me when to stop as I 

walk closer when how far—close they were—

A: Where you were there before.

Q: Same spot?

A: Same spot.

Q: About four feet away from you?

A: Yes.

Q: Were they both side by side then?

A: Yes.

Q: Anything covering their faces?

A: No.

Q: Were there lights on where you were?

A: Street lights.

Q: Okay. What did they say to you, if anything, about the 

drugs that you took from Carlos?

A: I guess they wanted it back, and I told them they ain’t 

getting shit back.

Q: When you say “guess,” were they asking for it back?

A: Yeah.

Q: Which one asked for it back?

A: [Appellant].

Q: [Appellant]?

A: Yeah.

Q: What did [Turner], if anything, say about the drugs?

A: Start[ed] running his mouth or something.

Q: Okay. Well, I know you already said he was just 

running his mouth. What was he saying?

A: Shit-talking.

Q: Like what?
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A: Cosigning and everything. Cosigning.

Q: Cosigning?

A: Whatever [Appellant] say, he was cosigning.

Q: So [Turner] would repeat what[ever] [Appellant] was 

saying? 

A: Yeah, something like that.

Q: Saying the same exact thing or something different?

A: No, something different. . .different way.

Q: Can you tell the jury what you heard [Turner] saying?

A: I don’t remember right now.

Q: What do you remember [Appellant] saying?

A: “We want our shit back.” I said, “ You ain’t getting your 

shit back.” And he said, “We got something for you.” I said, 

“Come on with it.”

Q: They said they got something for you?

A: Yeah.

Q: Which one said that?

A: [Appellant].

Q: Did [Turner] say anything along those lines?

A: No, he just looking dumb.

Q: Okay. How far apart was [Turner] standing when 

[Appellant] said that?

A: They was side by side.

Q: How long was, as you call it, that “shit-talking” going 

on?

A: Like five minutes.

Id. at 35-42.

Lofton testified he told the men he was going to flush the narcotics 

down the toilet, and they became upset. Id. at 43. Lofton watched as the 

two men, who were “side by side,” started to ride off on their bikes, and as 

he began to walk away in the opposite direction, he turned in time to see 

Appellant shooting in his direction. Id. at 45. One of the bullets struck 

Lofton in the front of his right bicep, and after he went into the house, his 

paramour telephoned the police. Id. at 47. 
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Prior to the shooting, Lofton did not observe either of the two men in 

possession of the handgun. Id. at 49. He noted that both Appellant and 

Turner were wearing black hoodies; however, Appellant’s hoodie had a 

picture on it. Id. at 42. At trial, Lofton positively identified a hoodie, which 

the police had seized from Appellant’s home, as the hoodie Appellant had 

been wearing when he shot Lofton. Id. at 70-71, 176-78. 

Lofton testified that, the day after the shooting, he picked out 

Appellant’s and Turner’s photos from police photo arrays. Id. at 56-57. 

Also, on that date, he gave a statement to the police indicating Appellant 

shot him, but that Turner was with him and had done “all of the talking.” 

Id. at 58-64. At trial, Lofton again identified Appellant as the man who shot 

him, and Turner as the man who was “with him talking shit when [he was] 

shot.” Id. at 69. He further indicated that, when he told the men he was 

not giving the narcotics back to them, Appellant said, “We got something for 

you[,]” and Turner said to Appellant, “Say no more.” Id. at 106. 

Detective Michael Ferry testified the shooting occurred at 1818 South 

Corlies Street, and the police found three 9 millimeter fired cartridge casings 

in the vicinity. Id. at 120-21. 

Detective Landis confirmed that, the day after the shooting, Lofton 

chose Appellant’s and Turner’s photos from photo arrays. Id. at 160. 

Specifically, he confirmed Lofton chose Appellant as the shooter, and he 
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chose Turner as the person with Appellant and “doing all the talking.” Id. at 

164-65. 

The Commonwealth offered into evidence various stipulations made 

between the parties, including the fact that neither Appellant nor Turner had 

a valid license to carry a firearm. N.T., 5/9/14, at 65-66. 

At the conclusion of all testimony, the jury convicted Appellant of the 

offenses indicated supra, and the trial court sentenced Appellant to an 

aggregate of twelve years to twenty-four years in prison. This timely, 

counseled appeal followed,4and all Pa.R.A.P. 1925 requirements have been 

met.

In his first issue, Appellant contends the evidence was insufficient to 

sustain his convictions. Specifically, he alleges the testimony from the lone 

eyewitness, Lofton, which identified him as being involved in the shooting, 

was so inherently unreliable and contradictory that the verdict could only 

have come from speculation and conjecture. See Commonwealth v. 

Karkaria, 533 Pa. 412, 625 A.2d 1167 (1993) (indicating where testimony 

of the victim is so unreliable and contradictory that it is incapable of 

supporting a verdict of guilty, the evidence is insufficient as a matter of law). 

The standard we apply when reviewing the sufficiency of 

the evidence is whether viewing all the evidence admitted at trial 

____________________________________________

4 Turner, who was also convicted and sentenced on numerous charges in 

connection with the shooting, has filed a separate appeal. His appeal is 

docketed at 2601 EDA 2014 and shall be addressed in a separate decision.
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in the light most favorable to the verdict winner, there is 

sufficient evidence to enable the fact-finder to find every 

element of the crime beyond a reasonable doubt. In applying 

the above test, we may not weigh the evidence and substitute 

our judgment for the fact-finder. In addition, we note that the 

facts and circumstances established by the Commonwealth need 

not preclude every possibility of innocence. Any doubts 

regarding a defendant's guilt may be resolved by the fact-finder 

unless the evidence is so weak and inconclusive that as a matter 

of law no probability of fact may be drawn from the combined 

circumstances. The Commonwealth may sustain its burden of 

proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence. Moreover, in 

applying the above test, the entire record must be evaluated and 

all evidence actually received must be considered. Finally, the 

trier of fact while passing upon the credibility of witnesses and 

the weight of the evidence produced is free to believe all, part or 

none of the evidence. Furthermore, when reviewing a 

sufficiency claim, our Court is required to give the prosecution 

the benefit of all reasonable inferences to be drawn from the 

evidence.

However, the inferences must flow from facts and 

circumstances proven in the record, and must be of such volume 

and quality as to overcome the presumption of innocence and 

satisfy the jury of an accused's guilt beyond a reasonable doubt. 

The trier of fact cannot base a conviction on conjecture and 

speculation and a verdict which is premised on suspicion will fail 

even under the limited scrutiny of appellate review.

Commonwealth v. Slocum, 86 A.3d 272, 275-76 (Pa.Super. 2014) 

(quotation and citation omitted). 

As indicated supra, Appellant’s argument is specific in nature. Rather 

than challenging the sufficiency of the evidence to support any of the 

applicable elements of the offenses, Appellant contends the evidence was 

insufficient to prove that he was the shooter or even one of the two men 

involved in the shooting. As such, we need not conduct a thorough review 

of the evidence to determine whether it can support a finding that all of the 
J-A12033-16

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elements of the offenses have been met. Rather, we will focus on the 

specific sufficiency issue raised by Appellant: whether the evidence was 

sufficient to establish that Appellant was the perpetrator. 

This Court has recognized that:

[E]vidence of identification need not be positive and certain to 

sustain a conviction. Commonwealth v. S. Jones, 954 A.2d 

1194, 1197 (Pa.Super. 2008)[.] Although common items of 

clothing and general physical characteristics are usually 

insufficient to support a conviction, such evidence can be used 

as other circumstances to establish the identity of a perpetrator. 

Commonwealth v. Minnis, 458 A.2d 231, 233–34 (Pa.Super. 

1983). Out-of-court identifications are relevant to our review of 

sufficiency of the evidence claims, particularly when they are 

given without hesitation shortly after the crime while memories 

were fresh. Id. at 234. Given additional evidentiary 

circumstances, “any indefiniteness and uncertainty in the 

identification testimony goes to its weight.” Id. at 233.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.Super. 2011) (en banc) 

(quotation marks omitted). 

Here, in rejecting Appellant’s sufficiency of the evidence claim, the trial 

judge, the Honorable Denis P. Cohen, stated the following:

In the instant case, [Lofton], an eyewitness to the 

shooting, unequivocally identified [Appellant] at trial as. . .the 

shooter. Despite extensive cross-examination, [Lofton] never 

waivered. [Lofton] testified that he walked up close to 

[Appellant and Turner] (approximately four feet away), that the 

streetlights were on, that nothing was covering [Appellant’s] 

face, that [Appellant and Turner] were standing side-by-side, 

that he argued with [Appellant and Turner] for several minutes 

about Carlos’ drug dealing, and that [Appellant] was wearing a 

black hoodie with a picture on the front and back. Once the 

argument ended, [Lofton] testified that he watched [Appellant 

and Turner] ride away together for a short while, that nobody 

else was in the area that [Appellant and Turner] were riding, and 
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that, when he heard the gunshots, he turned and saw a flash 

coming from [Appellant’s] direction.

Four days after the shooting, the black hoodie that 

[Appellant] was wearing the night of the shooting was recovered 

from [Appellant’s] home, and [Lofton] recognized the hoodie at 

trial as the hoodie that [Appellant] was wearing on the night of 

the shooting. Additionally, according to both [Lofton] and 

Detective Landis, the day after the shooting [Lofton] 

unequivocally identified [Appellant] as. . .the shooter[ ] from a 

photo array, and stated specifically that [Appellant] was “the guy 

who shot me last night.” 

[Lofton’s] testimony is further corroborated by the fact 

that the flash description that he provided to Officer Pollard on 

the night of the shooting was consistent with [Appellant’s] 

physical characteristics a few days after the shooting. 

Specifically, on the night of the shooting, [Lofton] indicated that 

the shooters were two black males wearing dark clothing, one of 

whom was approximately 5’10’’, 180 pounds, with a full beard. 

According to the arresting officer, four days after the shooting 

(the day [Appellant] was arrested) [Appellant] “looked like he 

hadn’t shaven for at least a week or so” and there was facial hair 

“all over his face” such that no “part of [Appellant’s] face was 

shaven.” (N.T., 5/9/14, at 58-61).

Finally, [Lofton’s] identification was corroborated by the 

fact that, in addition to arguing with [Appellant and Turner] 

about Carlos on the night of the shooting, [Lofton] had met with 

[the men] only two weeks prior to the shooting to discuss Carlos’ 

drug dealing. [Lofton’s] meeting with [Appellant] two weeks 

prior to the shooting occurred during the day, and [Lofton] 

testified [Appellant] was standing approximately four feet away, 

face uncovered, side-by-side with [Turner]. 

While [Appellant] challenges the fact that immediately 

after being shot and before taken to the hospital, [Lofton] first 

told the police that he did not know what happened, such initial 

uncertainty in the identification goes to the weight of the 

evidence, not the sufficiency of the evidence. See Orr, 38 A.3d 

at 874 (“Given additional evidentiary circumstances, any 

indefiniteness and uncertainty in the identification testimony 

goes to its weight.”)[.] Therefore, the Commonwealth 

presented. . .sufficient evidence that [Appellant] was the 

shooter.
J-A12033-16

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Trial Court Pa.R.A.P. 1925(a) Opinion, filed 6/5/15, at 14-16 (citations to 

record omitted).

We agree with the trial court’s reasoning in this regard and find no 

merit to Appellant’s first issue.

In his second issue, Appellant contends the suppression court erred in 

denying his pre-trial motion seeking to suppress Lofton’s out-of-court 

identification of Appellant as the shooter. In this vein, he alleges the 

circumstances revealed that Lofton did not observe the person who shot 

him, and he did not identify Appellant as the shooter until after he viewed an 

unnecessarily suggestive photo array. See Appellant’s Brief at 22. Appellant 

suggests the photographic identification procedure was conducted in a 

suggestive manner by virtue of the fact “the arrays were not created using 

any description Lofton may have provided to the police.” See id. at 23. 

Moreover, he argues the “procedure was additionally suggestive because it 

was done while Lofton was facing new drug charges while already on 

probation for two drug dealing felonies, and [while Lofton] was under the 

influence of Percocet [in the hospital].” See id. at 24. 

Initially, we note:

Our standard of review in addressing a challenge to the denial of 

a suppression motion is limited to determining whether the 

suppression court's factual findings are supported by the record 

and whether the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed before the 

suppression court, we may consider only the evidence of the 

Commonwealth and so much of the evidence for the defense as 

remains uncontradicted. . . .Where the suppression court's 
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factual findings are supported by the record, we are bound by 

these findings and may reverse only if the court's legal 

conclusions are erroneous. Where. . .the appeal of the 

determination of the suppression court turns on allegations of 

legal error, the suppression court's legal conclusions are not 

binding on an appellate court, whose duty it is to determine if 

the suppression court properly applied the law to the facts. 

Thus, the conclusions of law of the courts below are subject to 

our plenary review.

Commonwealth v. McAdoo, 46 A.3d 781, 783–84 (Pa.Super. 2012) 

(quotations omitted). See Commonwealth v. Benton, 655 A.2d 1030 

(Pa.Super. 1995) (indicating it is within the suppression court’s sole province 

to make credibility determinations). Moreover, our scope of review from a 

suppression ruling is limited to the evidentiary record that was created at 

the suppression hearing. In re L.J., 622 Pa. 126, 79 A.3d 1073, 1087 

(2013). 

When analyzing the admission of identification evidence, a 

suppression court must determine whether the challenged 

identification has sufficient indicia of reliability[.] This question 

is examined by focusing on the totality of the circumstances 

surrounding the identification. In deciding the reliability of an 

identification, a suppression court should evaluate the 

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

crime occurred, the witness's degree of attention, the accuracy 

of any description given, the level of certainty when identification 

takes place, and the period between the crime and the 

identification.

Commonwealth v. Sanders, 42 A.3d 325, 330 (Pa.Super. 2012) 

(quotation marks, quotation, and citation omitted).

Suggestiveness in the identification process is a factor to 

be considered in determining the admissibility of such evidence, 

but suggestiveness alone does not warrant exclusion. 

Identification evidence will not be suppressed unless the facts 
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demonstrate that the identification procedure was so 

impermissibly suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification. Photographs used in 

[arrays] are not unduly suggestive if the suspect's picture does 

not stand out more than the others, and the people depicted all 

exhibit similar facial characteristics.

Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa.Super. 2011) 

(quotations and quotation marks omitted). “Additionally, [we note] the 

purpose of a suppression order regarding exclusion of identification evidence 

is to prevent improper police action. Thus, where [an appellant] does not 

show that improper police conduct resulted in a suggestive identification, 

suppression is not warranted.” Commonwealth v. Jaynes, 2016 WL 

805572, *2 (Pa.Super. filed Mar. 1, 2016) (quotation marks, quotations, and 

emphasis omitted). 

In addressing Appellant’s claim, the suppression court indicated the 

following: 

As an initial matter, [Appellant’s] claim fails because he 

does not allege that the police conduct-that is, any procedure 

used by the police-was suggestive. As stated recently. . .in [ ] 

Sanders, 42 A.3d [at] 331 [ ], “the purpose of a suppression 

order regarding exclusion of identification evidence is to prevent 

improper police action. Thus, where [an appellant] does not 

show that improper police conduct resulted in a suggestive 

identification, suppression is not warranted.” 

At best, based upon a plain reading of [Appellant’s 

argument], the only police procedure that [Appellant] alleged 

had any impact on [Lofton’s] identification was the use of a 

photo-array that did not reflect [Lofton’s] initial description of 

[Appellant] to the police. Such a challenge to police procedures 

fails as a matter of law; the Superior Court has consistently 

stated that “there is no merit to the argument the identification 

process was unduly suggestive because the photos did not 

match the victim’s description of [the] assailant.” In re Love, 
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646 A.2d 1233, 1237 (Pa.Super. 1994); see also [Fulmore, 

supra]. Likewise, while [Appellant] also argues that the photo 

identification was unnecessarily suggestive because [Lofton] was 

medicated and looked at the photograph for fifteen minutes, 

such an argument relates to the condition of the victim and 

therefore goes to the weight of the evidence rather than its 

admissibility. See Sanders, 42 A.3d at 331 (holding that 

allegations that the victim was not “sufficiently cogent and lucid” 

to make a pretrial identification go to the weight of the evidence 

and not the admissibility of the identification). Therefore, since 

in this case [Appellant] has not alleged the police conduct was 

suggestive of the identification, “no improper police conduct is to 

be deterred,” and the pretrial identification was properly 

admitted. 

In any event, the police conduct in the instant case was 

not suggestive at all. “Suggestiveness arises when the police 

employ an identification procedure that emphasizes or singlesout a suspect.” Commonwealth v. Davis, 17 A.3d 390, 394 

(Pa.Super. 2011). In the case sub judice, [Lofton] testified that 

when he first met detectives (Detectives Landis and Ferry) at the 

hospital, the detectives asked him to identify the shooters, but 

that otherwise the detectives did not say anything to [Lofton] 

about the case. Thereafter, the detectives returned the next 

night with two arrays of eight photos each and asked [Lofton] to 

identify the shooters. [Lofton] then testified that he looked at 

the photographs for what seemed like fifteen minutes and 

identified [Appellant] as the shooter[ ]. While [Lofton] was 

looking at the photo arrays, the detective did not say anything to 

[him] other than to identify the shooters. When [Lofton] 

identified [Appellant] in the first photo array, the detective asked 

[him] “where do you recognize that person from” and [Lofton] 

responded “he’s the guy that shot me last night.” 

Notably, nothing in the pretrial. . .record supports any 

contention that the procedure[s] used by the detectives 

emphasized or singled out [Appellant]. On the contrary, the 

record indicates that on the night after the shooting the 

detectives, before questioning [Lofton], merely showed [Lofton] 

an eight person photo array and patiently awaited [his] 

identification of the shooter. Therefore, the police conduct here 

was not unduly suggestive and th[e] [c]ourt did not err in 

denying [Appellant’s] pretrial motion to suppress the pretrial 

identification of [Appellant].
J-A12033-16

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Trial Court Pa.R.A.P. 1925(a) Opinion, filed 6/5/15, at 8-10 (emphasis in 

original) (citations and footnotes omitted).5

We agree with the suppression court’s reasoning in this regard. 

Moreover, we note the record does not support Appellant’s contention that 

the circumstances of the crime were such that Lofton was unable to make a 

reliable identification of Appellant for lack of opportunity. For instance, 

Lofton testified at the suppression hearing that he had met Appellant and 

Turner a few weeks prior to the shooting during the daylight hours. N.T., 

5/5/14, at 23-25. Lofton further testified that, on the night of the shooting, 

he stood face to face with Appellant and Turner, engaging in a conversation 

for five minutes. Id. at 28, 35, 45. During this time, the men’s faces were 

lit by the street lights and not covered. Id. Lofton indicated he was shot by 

Appellant within a few seconds of walking away from the men. Id. at 29, 

45. 

Furthermore, with regard to Appellant’s argument that Lofton’s out-ofcourt identification was suggestive since it was done while Lofton was facing 

new drug charges while he was on probation, we conclude such would affect 

the weight to be accorded the identification at trial, but would not preclude 

____________________________________________

5 As the suppression court noted, there is no indication the photo array itself 

was unduly suggestive, and Appellant presented no argument in this regard. 

See Trial Court Pa.R.A.P. 1925(a) Opinion, filed 6/5/15, at 10 n.15. The 

suppression court found “Appellant’s picture did not stand out from the 

seven other photos and each of the photos depicted individuals with similar 

characteristics as Appellant.” Id.
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its admissibility. See Sanders, supra. Accordingly, we conclude Appellant 

is not entitled to relief on his second claim. 

In his third issue, Appellant argues the trial court erred in failing to 

give a Kloiber instruction6to the jury. 

Initially, we note that “[i]t is a bedrock appellate principle 

that ‘issues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.’ ‘A general exception to 

the charge to the jury will not preserve an issue for appeal. 

Specific exception shall be taken to the language or omission 

complained of.’ ” Commonwealth v. Sanchez, 623 Pa. 253, 

82 A.3d 943, 978 (2013), cert. denied, ___ U.S. ___, 135 S.Ct. 

154, 190 L.Ed.2d 113 (2014) (quotations omitted). Moreover, 

[our Supreme] Court has held, in the criminal trial context, “the 

mere submission and subsequent denial of proposed points for 

charge that are inconsistent with or omitted from the 

instructions actually given will not suffice to preserve an issue, 

absent a specific objection or exception to the charge or the trial 

court's ruling respecting the points.” Commonwealth v. 

Pressley, 584 Pa. 624, 632, 887 A.2d 220, 225 (2005) 

(footnote omitted).

Commonwealth v. Hitcho, ___ Pa. ___, 123 A.3d 731, 756 (2015). 

In the case sub judice, our review of the record confirms that, prior to 

the trial court charging the jury, Appellant’s counsel requested a Kloiber

instruction; however, noting the Commonwealth’s requested instruction 

____________________________________________

6

“A Kloiber instruction informs the jury that an eyewitness identification 

should be viewed with caution when either the witness did not have an 

opportunity to view the defendant clearly, equivocated on the identification 

of the defendant, or has had difficulties identifying the defendant on prior 

occasions.” Sanders, 42 A.3d at 332 (Pa.Super. 2012) (citation and 

footnote omitted).
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sufficiently addressed the issue, the trial court declined to give Appellant’s 

counsel’s requested instruction. N.T., 5/9/14, at 42-45. In response, 

Appellant’s counsel said, “Thank you, Your Honor.” Id. at 45. Thereafter, 

upon completion of the trial court’s charge to the jury, the trial court asked 

all counsel whether they had “[a]ny suggestions[,]” to which Appellant’s 

counsel replied, “I have none, Your Honor.” Id. at 168. As is evident, 

Appellant made no specific objection or exception to the charge or the trial 

court's ruling respecting the point at issue. See Pressley, supra. 

Accordingly, the issue is waived for purposes of appeal.

For all of the foregoing reasons, we affirm Appellant’s judgment of 

sentence.

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2016