J-S62012-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DARRYL RICHARD HARRIS

Appellant No. 2036 MDA 2015

Appeal from the Judgment of Sentence October 28, 2015

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0001431-2014

BEFORE: GANTMAN, P.J., DUBOW, J., and JENKINS, J. 

MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 28, 2016

Darryl Richard Harris (“Appellant”) appeals from the judgment of 

sentence entered in the Lycoming County Court of Common Pleas following 

his jury trial convictions for possession with intent to deliver (“PWID”),1

delivery of a controlled substance,2criminal use of a communication facility,3

fleeing or attempting to elude a police officer,4 possession of a controlled 

substance,5and conspiracy.6 We affirm.

____________________________________________

1 35 P.S. § 780-113(a)(30).

2 35 P.S. § 780-113(a)(30).

3 75 Pa.C.S. § 7512(a).

4 75 Pa.C.S. § 3733(a).

5 35 P.S. § 780-113(a)(30).
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The relevant facts and procedural history of this appeal are as follows. 

On August 14, 2014, a confidential informant (“CI”), helped Pennsylvania 

state police set up a controlled purchase of crack cocaine. N.T., 4/22/15, at 

16-17. After arranging a meeting through text messages with co-defendant 

Markese Askew, the CI parked her vehicle in front of a bowling alley with 

$300.00 police had given her to purchase drugs. Id. at 20-26. Appellant 

drove a red vehicle past the CI, and passenger Mr. Askew waved at the CI, 

indicating that she should follow them. Id. at 29. The CI followed the 

vehicle until it pulled over. Id. at 30. She pulled over, exited her vehicle, 

entered the back seat of Appellant’s vehicle, and sat directly behind 

Appellant, the driver. Id. The CI handed the money to Appellant, and Mr. 

Askew handed her bags of drugs, which she placed in her pocket before 

returning to her car. Id. at 31. She returned to meet with Officer Whipple 

and gave him the drugs. Id.

After the controlled purchase, Officer William Holmes, who was driving 

an undercover vehicle, and Officer Jeff Paulhamus, who was in a marked 

police vehicle, followed Appellant’s vehicle. Id. at 78, 89. Officer 

Paulhamus initiated his police lights, and Appellant did not pull over, but

sped away until he eventually crashed. Id. at 78, 89. Appellant ran from 

(Footnote Continued) _______________________

6 18 Pa.C.S. § 903(c).
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the vehicle. Id. The officers parked their vehicles and chased Appellant on 

foot until Officer Paulhamus took Appellant into custody. Id. at 78, 90.

The CI was unable to identify Appellant in a photo array that consisted 

of eight photographs, one of which was Appellant. N.T. 12/16/14, at 3. 

However, at a preliminary hearing, the CI positively identified Appellant 

when he was sitting next to his co-defendant at the defense table. Id. at 

13. She felt confident that she had correctly identified Appellant at the 

preliminary hearing because she was able to see his profile, having observed 

it in the car when she purchased the drugs. Id. at 18. The photo array 

image of Appellant did not depict his profile. Id. 

Appellant filed several pre-trial motions, including a motion to preclude 

the CI’s in-court identification of Appellant due to the suggestive nature of 

the identification at the preliminary hearing. The court conducted an 

omnibus pre-trial motion hearing on December 16, 2014 and denied 

Appellant’s motion to preclude the in-court identification.

On April 22, 2015, a jury convicted Appellant of the aforementioned 

crimes. On October 28, 2015, the court sentenced Appellant to an 

aggregate sentence of thirty-six (36) to seventy-two (72) months’ 

incarceration.7 On November 19, 2015, Appellant timely filed a notice of 

appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.8

____________________________________________

7 The court imposed consecutive sentences of eighteen (18) to thirty-six 

(36) months’ incarceration for PWID and for fleeing and eluding. The court 

(Footnote Continued Next Page)
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Appellant raises the following issue for our review:

DID THE SUPPRESSION COURT ERR BY FAILING TO 

PRECLUDE THE CONFIDENTIAL INFORMANT FROM 

TESTIFYING AT TRIAL REGARDING HER IDENTIFICATION 

OF THE APPELLANT DUE TO THE UNDULY SUGGESTIVE 

NATURE OF THE ORIGINAL IDENTIFICATION AT THE 

PRELIMINARY HEARING?

Appellant’s Brief at 7.

Appellant argues the CI’s identification of him at the preliminary 

hearing was unduly suggestive because the CI was unable to identify him in 

a photo array but later positively identified him when he was handcuffed, 

dressed in an orange prison jumpsuit, and sitting next to his co-defendant at 

the preliminary hearing. He claims that this was an unduly suggestive 

identification that should have precluded the CI from identifying Appellant in 

court, and that he is entitled to a new trial in which the CI is precluded from 

identifying him. We disagree.

(Footnote Continued) _______________________

imposed a concurrent sentence of twelve (12) to twenty-four (24) months’ 

incarceration for criminal use of a communication facility, and the rest of 

Appellant’s convictions merged for sentencing purposes.

8 On November 23, 2015, the court ordered Appellant to file a concise 

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), 

and he timely complied the next day. The court issued a Pa.R.A.P. 1925(a) 

opinion on February 11, 2016. In its opinion, the court found Appellant 

waived his issue as to the suppression ruling because the issue presented in 

his concise statement was overly broad and vague. The court relies on its 

opinion and order of January 14, 2015 for the reasons it denied Appellant’s 

suppression motion. Because Appellant raised his issue at the suppression 

hearing, and the court addressed his issue, we do not find the issue waived

based on the quality, or lack thereof, of Appellant’s concise statement.
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Preliminarily, “it is the appellant’s duty to ensure that the certified 

record is complete for purposes of review.” Commonwealth v. Little, 879 

A.2d 293, 301 (Pa.Super.2005), appeal denied, 890 A.2d 1057 (Pa.2005) 

(quoting Commonwealth v. Dehart, 730 A.2d 991, 993 n. 1 

(Pa.Super.1999), appeal denied, 745 A.2d 1218 (Pa.1999)). “A failure by 

Appellant to insure that the original record certified for appeal contains 

sufficient information to conduct a proper review constitutes waiver of the 

issue sought to be examined.” Commonwealth v. Martz, 926 A.2d 514, 

525 (Pa.Super.2007). “[I]f the appellant caused a delay or other problems 

in transmitting the certified record, then he or she is not entitled to relief 

and the judgment of the court below should be affirmed.” Commonwealth 

v. Bongiorno, 905 A.2d 998, 1001 (Pa.Super.2006).

Here, the transcript from the preliminary hearing is not in the certified 

record. We decline to affirm on the basis of waiver, however, because we 

are able to conduct a review of the issue, and neither party contests that the 

CI identified Appellant at the preliminary hearing.

Our standard of review for a trial court’s denial of a suppression 

motion is as follows:

In addressing a challenge to a trial court’s denial of a 

suppression motion we are limited to determining whether 

the factual findings are supported by the record and 

whether the legal conclusions drawn from those facts are 

correct. Since the Commonwealth prevailed in the 

suppression court, we may consider only the evidence of 

the Commonwealth and so much of the evidence for the 

defense as remains uncontradicted when read in the 
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context of the record as a whole. Where the record 

supports the factual findings of the trial court, we are 

bound by those facts and may reverse only if the legal 

conclusions drawn therefrom are in error.

Commonwealth v. Cauley, 10 A.3d 321, 325 (Pa.Super.2010) (quoting 

Commonwealth v. Bomar, 826 A.2d 831, 842 (Pa.2003)). “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. 

Guzman, 44 A.3d 688, 692 (Pa.Super.2012) (citation omitted). 

Additionally, when reviewing the suppression court’s rulings, we consider 

only the suppression record. See In re L.J., 79 A.3d 1073, 1085 (Pa.2013) 

(“it is inappropriate to consider trial evidence as a matter of course, because 

it is simply not part of the suppression record, absent a finding that such 

evidence was unavailable during the suppression hearing.”).

“When an out-of-court identification is alleged to be tainted, an incourt 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.” Commonwealth v. Kendricks, 30 A.3d 

499, 506 (Pa.Super.2011), appeal denied, 46 A.3d 716 (Pa.2012) (internal 

quotations and citation omitted). The Commonwealth must prove this 

independent basis for identification through clear and convincing evidence. 

See Commonwealth v. Davis, 17 A.3d 390, 394 (Pa.Super.2011), appeal 

denied, 29 A.3d 371 (Pa. 2011). “An independent basis is established when 
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‘the in-court identification resulted from the criminal act and not the 

suggestive [identification procedure].’” Id.

In reviewing the propriety of identification evidence, the 

central inquiry is whether, under the totality of the 

circumstances, the identification was reliable. The purpose 

of a “one on one” identification is to enhance reliability by 

reducing the time elapsed after the commission of the 

crime. 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. Absent some special element of unfairness, 

a prompt “one on one” identification is not so suggestive 

as to give rise to an irreparable likelihood of 

misidentification.

Commonwealth v. Kearney, 92 A.3d 51, 65 (Pa.Super.2014), appeal 

denied, 101 A.3d 102 (Pa.2014).

Although the CI did not identify Appellant in a photo array, she 

positively identified him at the preliminary hearing while he was handcuffed, 

wearing an orange jumpsuit and sitting next to his co-defendant at the 

defense table. Regarding this identification, the suppression court reasoned:

In reviewing [the reliability factors enumerated in 

Kearney, supra], the [c]ourt cannot conclude that the 

identification of [Appellant] at the preliminary hearing was 

so suggestive as to give rise to an irreparable likelihood of 

misidentification. When the incident occurred, the CI 

viewed [Appellant] from a profile position. She did not 
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have an opportunity to view his whole face. She had not 

previously met [Appellant]. The full face photograph of 

[Appellant] set forth in the array did not produce an 

identification. At the preliminary hearing, however, and as 

explained by the Commonwealth without objection by 

[Appellant], the CI had an opportunity to view [Appellant] 

in person from a profile position, as well as a full frontal 

position.

Certainly, the CI had an opportunity to view [Appellant] at 

the time of the crime. While she was paying some 

attention, she was certainly not paying entire attention in 

light of the fact that it was a quick transaction and she was 

dealing with two individuals. Further, [Appellant] was in 

front of her while she was in the back seat. She did 

describe [Appellant] as being a light-skinned black male 

with possibl[y] a goatee. There is nothing in the record to 

lead the [c]ourt to conclude that there was any level of 

uncertainty by the CI when she identified [Appellant] at 

the preliminary hearing and while there is some level of 

suggestiveness, the [c]ourt cannot conclude that under all 

of the circumstances the identification was so suggestive 

as to give rise to an irreparable likelihood of 

misidentification. This conclusion is bolstered by the fact 

that the witness was not willing to simply identify anyone 

at the array. The integrity of the identification process is 

evident.

Accordingly, [Appellant’s] omnibus pretrial motion in the 

nature of a motion to dismiss and motion to suppress will 

be denied.

Omnibus Pretrial Motion Opinion and Order, filed January 14, 2015, at 11-

12.

The trial court’s findings are supported by the record and the legal 

conclusions drawn therefrom are not error.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/28/2016