J-S24040-19

____________________________________

* Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

ROBIN MCALLISTER

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 350 EDA 2018

Appeal from the Order January 2, 2018

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

No(s): CP-51-CR-0005311-2017

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

MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 03, 2019

The Commonwealth appeals from the January 2, 2018, order entered in 

the Court of Common Pleas of Philadelphia County granting Appellee Robin 

McAllister’s pre-trial motion to suppress the out-of-court and in-court 

identifications of Appellee as the perpetrator of the crimes against Christopher 

Davis (“Mr. Davis”).1 After a careful review, we reverse the trial court’s order 

and remand for further proceedings consistent with this decision. 

The relevant facts and procedural history are as follows: Appellee was 

arrested and charged with various offenses in connection with the shooting of 

____________________________________________

1 Pursuant to Pa.R.A.P. 311(d), the Commonwealth has certified in its notice 

of appeal that the suppression order “terminates or substantially handicaps 

the prosecution.” Pa.R.A.P. 311(d).
J-S24040-19

- 2 -

Mr. Davis.

2

 On November 27, 2017, Appellee filed a counseled pre-trial 

motion seeking to suppress Mr. Davis’ out-of-court and in-court identifications 

of Appellee as the shooter.3 Specifically, Appellee averred the photo array 

shown to Mr. Davis was unduly suggestive, thereby rendering unreliable Mr. 

Davis’ out-of-court identification. Appellee further averred Mr. Davis had no 

independent basis for his identification of Appellee such that any proposed incourt identification should be suppressed.

On December 20, 2017, Appellee proceeded to a suppression hearing at 

which the Commonwealth presented the testimony of three witnesses: Police 

Officer Robert Zona, Detective Michael Repici, and Detective Michael Livewell. 

Appellee presented no witnesses. 

Officer Zona, an eight year veteran of the police force, testified that, on 

May 5, 2017, at approximately 12:04 p.m., he was on duty and taking a

burglary report in the 2500 block of Cleveland Street when an unknown male 

____________________________________________

2 Specifically, Appellee was charged with aggravated assault, 18 Pa.C.S.A. § 

2702, possession of firearm, 18 Pa.C.S.A. § 6105, firearms not to be carried 

without a license, 18 Pa.C.S.A. § 6106, carrying firearms in public, 18 

Pa.C.S.A. § 6108, possession of instrument of crime, 18 Pa.C.S.A. § 907, 

simple assault, 18 Pa.C.S.A. § 2701, and reckless endangerment, 18 Pa.C.S.A. 

§ 2705. 

3 Appellee also sought the suppression of physical evidence seized by the 

police from 2450 North Gratz Street and sought to quash the bills of 

information based on insufficient evidence. In separate orders, the trial court 

denied the motion to suppress the physical evidence, but granted, in part, 

Appellee’s motion to quash. Specifically, the trial court quashed the bill of 

information as to the charge of firearms not to be carried without a license. 

Neither of these orders are before this Court. 
J-S24040-19

- 3 -

approached him. N.T., 12/20/17, at 22. The unknown male reported “that 

somebody was shot down the street.” Id. In response, Officer Zona entered 

his patrol vehicle and drove halfway down the block where he observed Mr. 

Davis on the corner of Cleveland and Cumberland Streets. Id. at 22-23. 

Officer Zona exited his vehicle and discovered that Mr. Davis had been shot in 

the upper thigh. Id. at 23. 

Mr. Davis indicated that he “got shot in front of a blue house on Gratz 

Street.” Id. at 25. Officer Zona testified Mr. Davis did not report to him a 

specific address; however, he later came to learn that there is a blue house 

at 2400 Gratz Street. Id. at 26. 

As to the description of the shooter, Mr. Davis reported “it was a black 

male, late 30s, early 40s, bald head, beard, no shirt, and black sweatpants.” 

Id. at 24. Officer Zona provided the information over the police radio and 

transported Mr. Davis to the hospital via his police vehicle. Id. at 23-25, 31.

Officer Zona remained at the hospital, and approximately an hour later, 

Detective Repici and his partner, Detective Michael Rocks, arrived to question 

Mr. Davis. Id. at 32. Officer Zona left the room during the detectives’ 

questioning of Mr. Davis. Id. The detectives then left the hospital and, 

approximately forty minutes later, at 1:49 p.m., Officer Zona received from 

Detective Repici a text message depicting “a house right next to a blue 
J-S24040-19

- 4 -

house.”4 Id. at 32-38. Officer Zona asked Mr. Davis if 2450 North Gratz 

Street (the house sitting next to the blue house) was the house the male 

shooter had ran into after the shooting, and Mr. Davis replied affirmatively. 

Id. at 35. 

Detective Repici, a fifteen year veteran of the police force, testified that 

he and his partner were assigned to investigate the shooting that took place 

on May 5, 2017, at 12:04 p.m., at the 2400 block of Gratz Street. Id. at 71. 

He indicated that, immediately after receiving the assignment, he and his 

partner went to the hospital to interview the victim, Mr. Davis; however, they 

were unable to make contact with him at this time. Id. at 71-72. Accordingly, 

they went to the 2400 block of Gratz Street where, at 1:18 p.m., they 

discovered a “projectile from the top steps of 2450 North Gratz.” Id. at 73. 

Detective Repici testified he and his partner went back to the hospital 

where they were able to make brief contact with Mr. Davis, who was still being 

treated by hospital personnel. Id. at 77-79. Detective Repici testified that 

Mr. Davis provided a “quick scenario” of what occurred, reported “he was shot 

from the 2400 Block of Gratz[,]” and “explained that it was a house with a 

black screen door with a porch, and it was next to an abandoned lot.” Id. at 

79. Armed with this information, Detective Repici returned to the scene, took 

a picture of 2450 Gratz Street, and texted it to Officer Zona, who replied that 

____________________________________________

4 Officer Zona testified the text message depicted part of a blue house and 

another house sitting right next to it. Id. at 34-35.
J-S24040-19

- 5 -

Mr. Davis affirmatively identified the house as the one into which the shooter 

ran. Id. at 79-80. 

Detective Repici prepared an affidavit of probable cause to secure a 

search warrant for the house. Id. at 84. In the affidavit, Detective Repici 

relevantly indicated the following:

[Mr. Davis] stated that he was on the 2400 Block of North 

Gratz Street and was approached by a black male that he knows 

by the name of Rick. Rick gave him a bag of clothes. 

Shortly after this, an unknown black male approached [Mr. 

Davis] and confronted him about the bag of clothes. The male 

stated, “That’s my bag of clothes” and produced a revolver and 

shot [Mr. Davis] one time in the leg.

[Mr. Davis] further stated that he observed the male run in 

and out of the house on the 2400 Block of Gratz Street with a 

porch, black screen door and next to an abandoned lot.

Id. at 85. Detective Repici testified at the hearing that he received this 

information directly from Mr. Davis. Id. at 85-86. 

Detective Repici confirmed the magistrate issued a search warrant at 

5:00 p.m., and at 5:15 p.m., upon execution of the warrant at 2450 North 

Gratz Street, the police discovered “one pair of black sweatpants, [and] one 

blue, red, and white drawstring bag containing various clothes with price tags 

on them[.]” Id. at 88. Detective Repici confirmed that, based on the items 

seized from the house, the police were unable to identify the owner of the 

items, and no firearm was recovered at this time. Id. at 92-93. 

After executing the search warrant, at 7:00 p.m., Detective Repici and 

his partner traveled back to the hospital to formally interview Mr. Davis. Id.
J-S24040-19

- 6 -

at 94. During the interview, Detective Repici received information from 

Detective Livewell indicating that the police had a suspect and were preparing 

a photo array to show Mr. Davis. Id. at 98. With regard to the photo array, 

Detective Repici relevantly testified as follows:

Q. When you say “prepare a photo array,” what does that mean 

specifically?

A. When we say that, we’re saying develop six—five photos along 

with the candidate or suspect in reference to this incident.

And at that time, we knew we needed somebody else to 

show the photo array.

Q. Why is that?

A. Because the way we show them, we show them the doubleblind method.

Q. What does the double-blind method mean?

A. It means that we do not know who the suspect is, and the 

victim does not know who the suspect is.

Q. After speaking with this detective, was a photo array, 

eventually, compiled?

A. Yes.

Q. Did you see that photo array that night on May 5, 2017?

A. Not until after the interview.

Q. After the interview. Okay. During the interview, was—did 

someone show Mr. Davis that photo array?

A. Yes.

Q. Who showed the photo array?

A. Detective Keppol.

***

Q. Other than showing the house and the photo array for purposes 

of following the double-blind procedures, Detectives 

Keppol...wasn’t [i]nvolved in your investigation with Detective 

Rocks?

A. No, they weren’t involved in this investigation up until that 

point.
J-S24040-19

- 7 -

***

Q. Detective Repici, going back to the photo arrays, do you know, 

in your experience as a...detective, how images or photo arrays 

are compiled, for a lack of a better term?

A. Yes.

Q. Can you explain that to Her Honor?

A. Sure. Once we have the candidate or suspect, you can either 

physically enter the attributes of the characteristics of that male 

or female, or you could just click on the photo to similar images, 

and the database will go through a bunch of algorithms and 

processes and generate a bunch of people for you to pick from.

Q. And when you say “the database,” what database are you 

referring to?

A. This one, mugshots.

Q. And do you know where the photographs of mugshots come 

from?

A. They come from the prison system.

Q. Is this the practice of the Philadelphia Police Department to 

photograph anybody that has been arrested for a crime in the city 

and county of Philadelphia?

A. Yes.

Q. And you have access and your brother detectives have access 

to that database?

A. Correct.

Q. In this particular case, is there any other database that’s 

utilized in this photo array, if you know?

A. No.

Q. And you say “algorithms,” do you know, generally, what the 

computer is doing when it generates similar images?

A. It’s basically compiling a bunch of photos of males that have 

similar qualities to the candidate or suspect already selected.

Q. And those qualities, are they previously entered into the 

system once the photograph is entered into the system?

A. Usually, yes.

Q. When you say “qualities,” what are you referring to specifically?
J-S24040-19

- 8 -

A. Skin color, height, weight, hair color, length, facial hair, scars, 

tattoos, stuff of that nature.

Q. And in this particular case, you had nothing to do with the 

actual arrangement or the selection of the six—five other 

photographs, as you were at the hospital the entire time?

A. Correct.

Id. at 98-100, 102-04. 

Detective Repici confirmed that Mr. Davis chose photo number 3, which 

was Appellee’s photo, from the array. Id. at 101. Detective Repici indicated 

that, prior to the instant incident, he did not know Appellee. Id. Based on 

Mr. Davis’ identification of Appellee as the shooter, the police arrested him on 

May 17, 2017. Id. at 104. 

On cross-examination, Detective Repici testified that the person 

identified as “Rick” in the affidavit of probable cause for the search warrant 

was determined to be a person who observed Mr. Davis after he had been 

shot. Id. at 115. Detective Repici indicated that, during the formal interview 

of Mr. Davis on May 5, 2017, at approximately 7:20 p.m., Mr. Davis described 

the shooter as “a black guy, bald, beard, six-something, no shirt. He was a 

little built, black sweatpants, a sunni beard.” Id. at 121-22. Detective Repici 

testified that, in his experience, “sunni beards” are different lengths and 

colors. Id. at 123. 

Detective Repici noted that, on May 11, 2017, at approximately 11:42 

p.m., the police conducted a second formal interview with Mr. Davis, and Mr. 

Davis “further adopted” the previously chosen photo of Appellee as the 
J-S24040-19

- 9 -

shooter. Id. at 141. Detective Repici testified that he interviewed a woman, 

S.B., who lived at 2450 North Gratz Street, and she informed him that she 

permitted Appellee to be at her house on May 5, 2017. Id. at 148-52. 

Detective Livewell, a twenty-two year veteran of the police force, 

testified that he learned about the shooting during the evening of May 5, 2017, 

when he reported for his shift. Id. at 171. He indicated that, while Detectives 

Repici and Rocks interviewed Mr. Davis, he accessed the 75-48 Vehicle and 

Pedestrian Investigation System and determined that S.B. lived at 2450 North 

Gratz Street. Id. at 172. He further discovered that, in March of 2017, the 

police stopped a vehicle registered to S.B. in Philadelphia; S.B. was a 

passenger and Appellee was the operator. Id. Detective Livewell noted that 

the description of Appellee in connection with the vehicle stop listed him as 

being a male with a beard. Id. Accordingly, Detective Livewell accessed 

Appellee’s mugshot and discovered he was an African-American bald man with 

a beard and birth date consistent with Mr. Davis’ description of the shooter’s 

age. Id. at 172-73. 

Detective Livewell testified that, after he informed Detective Rocks of 

the existence of Appellee in connection with S.B., who lived at 2450 North 

Gratz (the house from which the projectile was recovered from the front 

steps), Detective Rocks asked him to create a photo array. Id. at 173. 

Detective Livewell described the following process:

Because [Appellee] was the person that I searched...his face 

popped up in the system. You can put your cursor over that 
J-S24040-19

- 10 -

picture, and it would be a right click. A subsequent box would pop 

up, and I clicked on similar images. So whatever algorithm, based 

on [Appellee’s] description, whether bald, beard, black male. 

Based on the person---it would be the person entering the 

information into the computer at the time they take the picture.

So similar images would pop up in a page just on the same 

screen with a page of eight photographs that would be males 

similar to [Appellee]. 

As a result of that, I have to pick out five. I have—we want 

to prepare a double-blind photographic array, which would be six. 

I already have [Appellee]. And I went through the pages to see 

similar images of [Appellee].

Once I came up with six, I printed these pictures out on a 

color printer[.]

Id. at 173-74. 

Detective Livewell testified the images from which he chose were all 

from the same database, the photographs were the same size, and the 

photographs had the same background. Id. at 175. The only difference was 

the person within the photograph. Id. Detective Livewell specifically testified 

that he did not alter the six photographs, which he compiled for the array, and 

he gave them to Detective Rocks. Id. at 177. 

On cross-examination, Detective Livewell confirmed that he 

independently researched and discovered Appellee had been driving S.B.’s 

vehicle in March. Id. at 178. He confirmed that, when he saw that Appellee’s 

physical description was consistent with the physical description of the shooter 

provided by Mr. Davis, he contacted Detective Rocks to inform him that he 

had a possible suspect. Id. At this point, he prepared the photo array. He 

noted that the computer chose a “bunch of photos” that would match 
J-S24040-19

- 11 -

Appellee’s description, and Detective Livewell then chose the final five to add 

to Appellee’s photograph for the array. Id. at 181. He noted the computer 

program does not have “sunni” as a choice for a specific type of beard, and 

he indicated that “[t]here’s all kinds of sunni style beards.” Id. at 181-82. 

With regard to Appellee’s photograph, as compared to the five other 

people included in the array, the following relevant exchange occurred 

between Detective Livewell and defense counsel:

Q. Now, would you agree with me that [Appellee’s] picture is 

Photo Number 3 of that photo array?

A. Yes, he is.

Q. You'd agree that [Appellee's] beard is significantly longer than 

the beard of the person depicted in photos one, two, three—one, 

two, three—one, two, and four. I’m sorry.

A. Okay.

Q. You would agree with---

A. I wouldn’t necessarily say significantly, because a beard 

means, basically, facial hair. The information I had at the time 

was beard.

Q. I understand, Detective. I just want to know that, if you would 

agree with me that [Appellee’s] beard in those photos [is] 

significantly larger than photos one, two, and four? 

A. I would say it appears a little fuller and a little longer, but I 

wouldn’t use the word “significant.” I would say the guy, Number 

6, has a significantly fuller beard.

***

Q. You never had information about any tattoos, correct?

A. The only information I was aware of was the paperwork that 

was on Detective Rocks’ desk. It wasn’t verbally, nobody asked 

me to do this. And I did it independently. I knew it was a black 

male with a beard and 30s and 40s. And that’s all I knew.

Q. So taking your attention to Photo Number 5, you’d agree with 

me that there’s a tattoo on his neck on the left side?
J-S24040-19

- 12 -

A. I do see the tattoo.

Q. And I’ll take your attention to Picture Number 6.

A. Black male with a beard.

Q. That’s your interpretation?

A. That’s my interpretation a little lighter skin black male with a 

beard, but it’s a black male, little bald, with a beard.

Id. at 182-84. 

Based on the aforementioned, by order entered on January 2, 2018, the 

trial court granted Appellee’s motion to suppress the out-of-court and in-court 

identifications of Appellee as the perpetrator. Specifically, the trial court 

indicated the motion was granted “based on photo array, lack of evidence and 

[p]olice credibility.” Trial Court Order, filed 1/2/18. 

On January 8, 2018, the Commonwealth filed a motion for

reconsideration of the order, and by order entered on January 22, 2018, the 

trial court denied the Commonwealth’s motion for reconsideration. On 

January 29, 2018, the Commonwealth filed a notice of appeal from the trial 

court’s suppression order. The trial court did not direct the Commonwealth to 

file a Pa.R.A.P. 1925(b) statement; however, the Commonwealth filed a 

statement on February 14, 2018. Thereafter, the trial court filed a responsive 

Pa.R.A.P. 1925(a) opinion.

In its opinion, as to the reasons it granted Appellee’s motion to suppress 

the out-of-court and in-court identifications, the trial court relevantly indicated 

the following:
J-S24040-19

- 13 -

[The Commonwealth’s] sole complaint is that the [t]rial 

[c]ourt erred in granting the suppression of the out-of-court and 

in-court identifications, arguing that they were not suggestive and 

that there was an independent basis for identification. This 

argument is without merit.

First and foremost, the [t]rial [c]ourt found the testimony of 

[D]etectives Repici and Livewell to be evasive and incredible when 

discussing how the pictures were chosen for the photo array. 

***

Here, there were several issues that led the [t]rial [c]ourt 

to find the photo array was unduly suggestive. The photo array 

contained six images. Within those six images shown to [Mr. 

Davis], the beards were an issue. The first, second, and fourth 

images depicted individuals with very slight beards. The fifth 

picture depicted a man with no mustache and more of a goatee 

than a beard. The final picture depicted someone with an 

extremely bushy beard. That left Appellee, in image number 

three, depicting a beard very different from the other five 

individuals. His beard very noticeably stood out amongst the six 

pictures, which added to the evidence of a suggestive line-up. 

Further, Appellee appeared larger within his picture than the other 

five individuals. His image was proportionally larger and took up 

more space of [sic] in [the] picture. With photo arrays it is 

necessary that everyone depicted is set up in the same or nearly 

the same way. Here, we had Appellee positioned in a much more 

pronounced way, which could cause him to stand out in the mind 

of the person viewing the photo array.

Additionally, there was no mention of the perpetrator having 

any tattoos, but two of the photos displayed individuals with 

noticeable tattoos on their faces and necks. One individual had a 

very visible tattoo of a teardrop near his eye. Another had a 

noticeably large tattoo on his neck. Moreover, there was a 

significant difference between the amount of hair each individual 

had. Specifically, images one, two, and six depicted individuals 

who were bald. Image four depicted an individual with noticeably 

thicker hair. Image five appeared to have braids. This left 

Appellee, in image three, being the only one depicted with some 

hair on the sides of his head, without being completely bald and 

not nearly as thick as some of the other men. There were minimal 

similarities between the men apart from skin tone, and even that 

was questionable at best. Photo arrays are required to have 

people who appear similar within the images. These men did not 
J-S24040-19

- 14 -

appear similar and Appellee’s picture stood out more so than the 

others, given his beard and how pronounced he was within his 

image specifically. Adding to the totality of the circumstances, we 

consider the credibility of the detectives. The [t]rial [c]ourt found 

that the detectives created a photo array specifically designed to 

single-out Appellee. Considering the totality of the circumstances, 

this creates a suggestive line-up with an irreparable likelihood of 

misidentification.

If an out-of-court identification is tainted as suggestive, an 

in-court identification may still stand if there is an origin 

sufficiently distinguishable to be purged of the primary taint. As 

explained by our...Supreme Court, there are five factors which 

must be considered when determining if there is an independent 

basis for the identification.

***

Here the Commonwealth failed to prove by clear and 

convincing evidence any of the [five] factors. In order to establish 

this, the Commonwealth should have called [Mr. Davis] to the 

stand to testify as to the...five factors. Without that testimony, 

there is no evidence within the record to suggest that the witness 

had a good opportunity to view the perpetrator, [the victim’s] 

degree of attention, the accuracy of the descriptions, or the 

[victim’s] level of certainty. There is not enough evidence within 

the record to suggest that there exists an independent basis for 

the identification. 

Trial Court Opinion, filed 7/20/18, at 3-6 (citations omitted).

On appeal, the Commonwealth first avers the trial court erred in 

suppressing Mr. Davis’ out-of-court identification of Appellee as the shooter 

on the basis the photo array was impermissibly suggestive.5 Specifically, the 

Commonwealth avers the photo array shown to Mr. Davis “depicted six men 

____________________________________________

5 As the Commonwealth notes, there is no indication the trial court found the 

manner in which the police showed the photo array to Mr. Davis was unduly 

suggestive; but rather, the trial court concluded the photo array itself was 

unduly suggestive due to various perceived differences among the photos. 

Commonwealth’s Brief at 15. 
J-S24040-19

- 15 -

with substantially similar physical features and was thus not impermissibly 

suggestive.” Commonwealth’s Brief at 13. 

In this vein, the Commonwealth notes Appellee’s photo did not “stand 

out more than those of the others,” all of the subjects “exhibit[ed] similar 

facial characteristics,” “[e]ach photograph was primarily a head shot depicting 

the subjects’ upper chest and shoulder area,” “all of the men appeared to be 

wearing t-shirts,” and the “backgrounds of each picture was...comparable in 

tone (light, neutral) and color scheme (gray or blue).” Id. at 15-16.

Moreover, the Commonwealth avers “the men depicted have 

substantially similar complexions, facial features, facial hair, and hairstyle.” 

Id. at 16. The Commonwealth notes that all six men have facial hair with 

minimal variations as to length, and all six men have some baldness with 

variances as to the degree. Id. at 17. Additionally, the Commonwealth 

argues the prominence of Appellee’s head was not larger relative to the size 

of the other men’s heads, and the fact two of the men had tattoos does not 

render the array unduly suggestive. Id. at 18-19. 

Initially, we set forth our standard of review:

When reviewing the propriety of a suppression order, an 

appellate court is required to determine whether the record 

supports the suppression court’s factual findings and whether the 

inferences and legal conclusions drawn by the suppression court 

from those findings are appropriate. Where the record supports 

the factual findings of the suppression court, we are bound by 

those facts and may reverse only if the legal conclusions drawn 

therefrom are in error. However, where the appeal of the 

determination of the suppression court turns on allegations of 

legal error, the suppression court’s conclusions of law are not 
J-S24040-19

- 16 -

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

suppression court properly applied the law to the facts.

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

omitted).

Whether an out of court identification is to be suppressed as 

unreliable, and therefore violative of due process, is determined 

from the totality of the circumstances. 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 demonstrate that the identification 

procedure was so impermissibly suggestive as to give rise to a 

very substantial likelihood of irreparable misidentification. 

Photographs used in line-ups 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.

Moreover, our scope of review from a suppression ruling is 

limited to the evidentiary record that was created at the 

suppression hearing. 

Commonwealth v. Stiles, 143 A.3d 968, 978 (Pa.Super. 2016) (citations 

omitted). 

We have reviewed the photo array at issue in this case to determine if 

it was unduly suggestive with respect to the photographs.6 As indicated supra, 

photographs are not unduly suggestive if the suspect’s picture does not stand 

out more than those of the others and the subjects all exhibit similar facial 

characteristics. See id. 

____________________________________________

6 The color photo array is included in the certified record.
J-S24040-19

- 17 -

Initially, the background of each photo is similar, each photo is a 

headshot, and each photo depicts a man wearing a t-shirt. Further, Mr. Davis 

reported the shooter “was a black male, late 30s, early 40s, bald head, [and] 

beard[.]” N.T., 12/20/17, at 24. All of the men depicted appear to be of a 

similar age, and they have similar complexions, facial hair, and hairlines. We 

specifically disagree with the trial court’s factual finding that Appellee had a 

beard that was “very different from the other five individuals” or that he was 

the only person “with some hair on the sides of his head, without being 

completely bald[.]” Trial Court Opinion, filed 7/20/18, at 3-5. Simply put, 

while there were variations in the length of the beard and the degree of 

baldness among the subjects, the variations did not somehow make Appellee’s 

picture stand out more than the others. See Stiles, supra. 

Further, unlike the trial court, we do not conclude that the variation in 

the length of the beard, the degree of baldness, or the fact two men (neither 

of which were Appellee) had tattoos requires a legal determination that the 

people depicted did not all “exhibit similar facial characteristics.” Id. at 978 

(citation omitted). 

In Commonwealth v. Fisher, 564 Pa. 505, 769 A.2d 1116 (2001), the 

appellant argued that the photo array was unduly suggestive because “both 

witnesses described the suspect as a light-skinned African–American male 

with freckles and a goatee, while only six of the eight pictures in the line-up 

showed men with goatees, and only one, the picture of [the][a]ppellant, 
J-S24040-19

- 18 -

showed a man with freckles.” Id. at 1126. Despite the fact that all of the 

men in the photographs did not have goatees or freckles, th[e] [Supreme]

Court held that the photographs were substantially similar[.]” Id. at 1127.

In the case sub judice, while there were discrepancies among the men, 

we cannot accept the trial court’s assessment that Appellee’s photo somehow 

stood out from the others so as to increase the likelihood that his photo would 

be chosen. See Commonwealth v. Kearney, 92 A.3d 51 (Pa.Super. 2014) 

(holding incidental variations in appearance does not prove undue 

suggestiveness); Commonwealth v. Crork, 966 A.2d 585 (Pa.Super. 2009) 

(rejecting the appellant’s claim that the photo array was unduly suggestive 

where the array contained men of similar appearance but only one other man 

with light colored eyes; the appellant’s photo did not stand out from the 

others). 

Further, regarding the trial court’s factual finding that Appellee’s image 

“appeared larger within his picture than the other five individuals[,]” initially, 

upon reviewing the photo array, we find no record support for this finding. In 

any event, whatever discrepancy perceived by the trial court in this regard did 

not make Appellee’s photo stand out more than the others so as to suggest 

that he was the suspect. See Commonwealth v. Patterson, 940 A.2d 493 

(Pa.Super. 2007) (holding array was not suggestive were the appellant’s neck 

and shoulders were visible to the greatest extent, but all of the photographs 
J-S24040-19

- 19 -

depicted the subject’s neck and at least three of the other photographs 

displayed the subject’s shoulders). 

Here, in considering the totality of the circumstances, we conclude that 

Mr. Davis’ out-of-court identification was not based upon a photo array so 

infected by suggestiveness as to give rise to a substantial likelihood of 

irreparable misidentification. See Stiles, supra. “As the photo array is not 

remarkable in any way, we find the trial court’s determination to be in error.”7 

Fulmore, 25 A.3d at 348. 

Finding nothing in the record that indicates any of the pre-trial 

identification proceedings were tainted, we need not reach the second 

question of whether the in-court identification is inadmissible based on the 

suggestiveness of the out-of-court identification and lacking an independent 

basis. See id. at 349. 

____________________________________________

7 We note the trial court “found the testimony of [D]etectives Repici and 

Livewell to be evasive and incredible when discussing how the pictures were 

chosen for the photo array.” Trial Court Opinion, filed 7/20/18, at 3 (emphasis 

added). While the manner in which the police chose the photos may relate to 

the credibility of Mr. Davis’ identification of Appellee, it does not require a 

conclusion that the resulting photo array was unduly suggestive. See 

Fulmore, supra. Further, we specifically note that we have held there is no 

per se rule against the use of “mugshots,” as occurred in the case sub judice,

for identification purposes. Commonwealth v. Roane, 142 A.3d 79 

(Pa.Super. 2016). Moreover, based upon our review of the photo array, we 

find no record support for the trial court’s holding that “the detectives created 

a photo array specifically designed to single-out Appellee.” Trial Court 

Opinion, filed 7/20/18, at 5. 
J-S24040-19

- 20 -

Order suppressing out-of-court and in-court identifications is 

REVERSED; case REMANDED; jurisdiction is RELINQUISHED.

Judge McLaughlin has joined the memorandum.

Judge Lazarus files a concurring memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/3/19