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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

DAVID WARNER

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 445 EDA 2023

Appeal from the Order Entered January 23, 2023

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

No(s): CP-51-CR-0002930-2020

BEFORE: LAZARUS, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, P.J.: FILED MAY 31, 2024

The Commonwealth of Pennsylvania appeals from the order, entered in 

the Court of Common Pleas of Philadelphia County, granting David Warner’s 

motion to suppress a photographic identification and any subsequent in-court 

identification. We reverse and remand.

The suppression court set forth the underlying facts as follows:

[Warner] was arrested and charged for his alleged participation in 

the shooting of Andre Ford on July 3, 2020, in the rear driveway 

behind Ford’s home on the 6200 block of Chestnut Street in 

Philadelphia. After being shot six times, Ford was transported to 

the hospital, where he remained for six days. About an hour 

after the shooting, Ford told Police Detectives that he didn’t 

know who shot him, but the assailant lived four houses 

down from his home. (N.T. [Suppression Hearing], 1/23/23, 

pp. 41-42, 70-71; Exhibit[] D-3). On July 15, 2020, Ford met 

with Philadelphia Police Detective Timothy Connell about the 

shooting and gave a formal statement. Ford told Detective 

Connell that he didn’t know the name of the shooter. Ford stated 

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* Former Justice specially assigned to the Superior Court.
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that he had seen that person in the area approximately ten times 

and they resided at 6217 Chestnut Street. Based on that 

information, Detectives Connell and Begley conducted a “Clear 

Search” on that address. The Clear Search yielded the names of 

several young men who resided at 6217 Chestnut Street, one of 

whom was [Warner]. As a result of that information, the 

detectives looked through their police database and printed a 

single, bla[c]k-and-white mugshot photograph of [Warner]. 

Instead of providing Ford with a photo array containing [Warner’s] 

photo or present[ing] Ford with photographs of all the men who 

lived at 6217 Chestnut Street, Detective Connell showed Ford the 

single black-and-white mugshot of [Warner]. It wasn’t until this 

mugshot was presented to Ford that he identified [Warner] as the 

shooter. (N.T. [Suppression Hearing], 1/23/23, pp. 42-48, 61-

65; Exhibits C-1, D-1[,] and D-2).

During cross-examination [at the suppression hearing], Detective 

Connell acknowledged that his Clear Search came up with three 

separate addresses for [Warner] within the City of Philadelphia—

6217 Chestnut Street, 1323 N. 51st Street[,] and 5529 Walton 

Street—and that [Warner] did not reside at any of these addresses 

prior to or on the date of the shooting. Detective Connell also 

stated that, when the police executed a search warrant at 6217 

Chestnut Street, the house was empty, and no evidence was 

recovered. (N.T. [Suppression Hearing] 1/23/23, p. 53-72).

Aside from Ford’s identification of [Warner’s] mugshot, no 

corroborating evidence such as a gun, ballistics, DNA, fingerprints, 

surveillance footage[,] or independent eyewitness statements 

linked [Warner] to the crime. Moreover, the description Ford 

gave of the assa[ilant]—a Black [m]ale about 22 years old, 5’5” 

tall, wearing black clothing and having light facial hair—was vague 

and did not describe some very notable features associated with 

[Warner’s] appearance. Despite the lack of corroborating

evidence, lack of personal relationship, and the vague description

of the alleged shooter, Detectives Connell and Begley insisted that 

they were not required to present a photo array to Ford because 

[Warner] was a “known doer.” (N.T. [Suppression Hearing], 

1/23/23, pp. 54, 76-80).

Suppression Court Opinion, 6/12/23, at 2-4 (emphasis added).
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On January 23, 2023, the suppression court granted Warner’s motion to 

suppress, reasoning that, under the totality of the circumstances, the 

identification procedure created “a substantial likelihood of misidentification.” 

Id. at 4 (citing Commonwealth v. DeJesus, 860 A.2d 102, 112 (Pa. 2004). 

On January 30, 2023, the Commonwealth filed a motion to reconsider, which 

the court denied after the Commonwealth filed this appeal on February 17, 

2023.

1 Both the trial court and the Commonwealth have complied with 

Pa.R.A.P. 1925. 

The Commonwealth raises one issue for our review: “Did the [trial] court 

err in granting a motion to suppress the photographic identification of 

[Warner] as unduly suggestive, as well as any subsequent in-court 

identification[,] as alleged fruit of the poisonous tree?” Commonwealth’s 

Brief, at 4. 

In reviewing an appeal by the Commonwealth of a suppression 

order, we may consider only the evidence from the appellee’s 

witnesses along with the Commonwealth’s evidence which 

remains uncontroverted. Our standard of review is restricted to 

establishing whether the record supports the suppression court’s

factual findings; however, we maintain de novo review over the 

suppression court’s legal conclusions.

Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010). 

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1 The Commonwealth certified in its notice of appeal that the suppression 

court’s order terminates or substantially handicaps the prosecution of this 

case. See Pa.R.A.P. 311(d). See also Pa.R.A.P. 904(e) (“When the 

Commonwealth takes an appeal pursuant to Pa.R.A.P. 311(d), the notice of 

appeal shall include a certification by counsel that the order will terminate or 

substantially handicap the prosecution.”).
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In reviewing the propriety of identification evidence, the central 

inquiry is whether, under the totality of the circumstances, the 

identification was reliable. . . . Suggestiveness in the identification 

process is but one factor to be considered in determining the 

admissibility of such evidence and will not warrant exclusion 

absent other factors. As this Court has explained, the following 

factors are to be considered in determining the propriety of 

admitting identification evidence: “the opportunity of the witness 

to view the perpetrator at the time of the crime, the witness’

degree of attention, the accuracy of his prior description of the 

perpetrator, the level of certainty demonstrated at the 

confrontation, and the time between the crime and confrontation.” 

The corrupting effect of the suggestive identification, if any, must

be weighed against these factors. 

Commonwealth v. Meachum, 711 A.2d 1029, 1034 (Pa. Super. 1998)

(citations and some quotations omitted). 

“Suggestiveness arises when the police employ an identification 

procedure that emphasizes or singles[]out a suspect.” Commonwealth v. 

Davis, 17 A.3d 390, 394 (Pa. Super. 2011). However, “[a] pretrial 

identification will not be suppressed unless the facts demonstrate that the 

identification procedure was so infected by suggestiveness as to give rise to a 

substantial likelihood of irreparable misidentification.” Commonwealth v. 

Cousar, 154 A.3d 287, 306 (Pa. 2017). See also Commonwealth v. 

Fisher, 769 A.2d 1116, 1127 (Pa. 2001); Commonwealth v. Stiles, 143 

A.3d 968, 978 (Pa. Super. 2016). 

At the suppression hearing, Detective Connell stated that he interviewed 

the victim on July 15, 2020, almost two weeks after the shooting. Detective 

Connell testified that “[t]he victim stated who shot him.” N.T. Suppression 
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Hearing, 1/23/23, at 42. The prosecutor questioned Detective Connell with 

respect to the notes he had made during the interview:

Q: Detective, do you recognize[Exhibit] C-1?

A: Yes. . . . The investigative interview I conducted on [July

15], 2020 at 11:40 a.m.

Q: And in that interview, did you ask Mr. Ford what happened 

to him?

A: Yes.

Q: And did you ask him who it was that was the perpetrator?

A: Yes. 

Q: And did he describe to you who it was or how he knows him?

A: Yes. . . . First, I asked him where it happened. And he told 

me it was in the rear driveway of 6200 Chestnut Street. Then I 

asked him if he knew who shot him. And he said, yes. He 

lives at 6217 Chestnut Street. Then I asked him if he knew 

his name. And he stated no. I asked him how did he know 

him. He said he has lived on the block in the past. I asked 

him how many times had you seen him before the shooting. 

[He said] I’ve seen him about ten times the last couple 

months. And I know that he lives at 6217 Chestnut Street.

Based on that question, I asked Detective Begley to do a clear 

check on the property. And then Detective Begley notified me 

with a name that came up who lives in that property. It was the 

defendant. We then showed the complainant a single 

photo—

Id. at 43-44 (emphasis added). Detective Connell then went on to explain 

the photographic identification procedure, including those occasions when a 

single photo, as opposed to a photographic array, is appropriate: 

A: Depending on the case. For instance, if you had a robbery 

case, where the person was not known, and you got a description 

of the offender and—we still do a description and search the 
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database of mug shots and photos of everyone that had 

interaction with the victim. And after we get through we show the 

victim those photos. If we had a suspect by other means like on 

a video or get an officer who recognized him, and if we knew 

that the victim didn’t know the offender, we would do a sixperson photo array[.] . . . In this particular case, the 

complainant was adamant because he lived on the same 

block for the past several months. And he knew the 

address. . . . As far as I know per our discussion we believe 

that the victim knows the offender. And he described what 

he described by saying that he’s known him for several 

months. He’s seen him ten times in the last month he 

stated. He said I know he lives at 6217 Chestnut Street.

Q: Did you suggest to the witness that the person in the 

photograph was the shooter?

A: No.

Q: Did you suggest to the witness that the person in the 

photograph was the occupant of the address you provided?

A: No.

Id. at 45-48 (emphasis added). On cross-examination, Detective Connell 

clarified:

If [the] complainant didn’t know the person who shot him I 

wouldn’t have shown him any photos at all. He said he knew the 

person who shot him. He said he’d seen him. He lives at that 

location. And he’d seen him over ten times in a month’s period of 

time. The victim[,] Andre Ford[.] was believable because he came 

to us saying he wanted to be interviewed. And he wanted to 

identify the person who shot him.

Id. at 68. 

Significantly, what is overlooked by both the suppression court and 

Warner, and what is uncontradicted in the record, is a portion of the 

investigative interview, introduced as Exhibit C-1 at the suppression hearing,
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regarding a confrontation between Warner and Ford that occurred prior to the 

shooting. Therein, Ford reported the following:

Earlier in the night there were several people outside setting off 

fireworks. He was one of them. I went out to ask them to keep 

it down with the fireworks. My [redacted] is 98 years old. I told 

them to keep it down because it sounded like gunshots. We had 

some words and I went in the house. Around 2:30 in the morning,

I went outside to go to my girl[’]s house. I went out the back 

door and two guys were waiting for me. The guy who I had 

words with had a firearm and said[,“D]on’t run oldhead.[”] 

I ran and he shot me six times. Once in the back, once on the 

side, and twice in the stomach, one time in the butt and one time 

in the right leg.

N.T. Suppression Hearing, 1/23/23, at p. 43, (Exhibit C-1) (emphasis added). 

Based on the totality of the circumstances, the Commonwealth 

represents that the procedure used by Detectives Connell and Begley did not 

render the identification unreliable because the photograph used was only 

found by the Detectives after utilizing identifiers provided by the 

victim/complaining witness. Further, the Commonwealth asserts that the 

record shows that there is clear and convincing evidence that the identification 

was reliable because there was an independent basis for the identification, 

namely, the victim’s prior knowledge of Warner and his statement to police 

that Warner was one of the several people setting off fireworks and one of the

two men he confronted earlier that very evening about the fireworks

disturbing the elderly person in his home. We agree with the Commonwealth’s 

assessment. 
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Here, the victim “knew” Warner, although he did not know his name, 

and had an opportunity to observe Warner both before and during the relevant 

incident. These facts more than sufficiently outweigh any suggestiveness 

resulting from the showing of the single photograph to the witness. See

Commonwealth v. Buehl, 508 A.2d 1167, 1178-79 (Pa. 1986) (pretrial 

identification procedure proper despite police having only showed witness 

photograph of appellant where witness had good opportunity observe him at 

relevant time). We do not find these circumstances “so infected by 

suggestiveness that there is an irreparable likelihood of misidentification.” 

Commonwealth v. Bell, 562 A.2d 849, 852 (Pa. Super. 1989). Even though 

the single photo may have been suggestive, the identification was nonetheless 

reliable because the witness “knew” who Warner was. The procedure utilized 

by Detectives Connell and Begley, though not ideal, was not so suggestive “as 

to give rise to a substantial likelihood of irreparable misidentification.” 

Cousar, 154 A.3d at 306. See also Commonwealth v. Jaynes, 135 A.3d 

606, 610 (Pa. Super. 2016) (due process does not require every pretrial 

identification be conducted under laboratory conditions of approved lineup). 

Accordingly, we conclude the suppression court erred in granting Warner’s 

motion to suppress.

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished.
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Date: 5/31/2024