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- A17019

- 14

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENN SYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

KAI KPAAN

Appellant No. 2469 EDA 2013

Appeal from the Judgment of Sentence June 17

, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP

- 51

- CR

- 0014452

- 2011

BEFORE: GANTMAN, P.J., PANELLA, J., and STABILE, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 19, 2014

Appellant, Kai Kpaan, appeals from the judgment of sentence entered

June 17, 2013, by the Honorable Barbara A. McDermott, Court of Common

Pleas of Philadelphia County. We affirm.

We take the underlying f acts in this matter from the trial court’s

October 18, 2013, opinion.

On the morning of November 10, 2011, Eunice Beyan

drove to a Philadelphia

- area [p]ost [o]ffice near 2900 S. 70 th



### street in her mother’s Nissan Altima. She went into the post

office, and when she came out again, at approximately 10:45

a.m., she sat in the car and began entering the information for

her next destination into her navigation device. As she was

doing so, [Kpaan] opened the car door and held a gun to her

side. He told Beya n to put the key in the ignition and get out of

the car. Because this particular model of vehicle did not have a

traditional key ignition, Beyan said she could not do that.

[Kpaan] said “Do you think I’m playing with you? I’ll shoot you.

Put the key in the ignition.” When it became clear that this was

not possible, he ordered her out of the car and attempted to

start it. He was unable to do so, and he then ordered her back

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-

into the car in order to start the engine. Beyan started the car,

and as she w as relinquishing the driver’s seat to [Kpaan], she

reached for her purse. [Kpaan] told her to leave everything in

the car and go. She left her purse, wallet, and cellular phone in

her vehicle, and walked away. [Kpaan] told her “don’t look

back.” N.T. A pril 15, 2013, pp. 45

- 52; Commw. Exh. 1.

During the investigation, Beyan called T

- Mobile, her

cellular service provider, to find out whether it was possible to

track the location of her phone. They informed her that it was

not, but she logged into her T

- Mobile account and noticed some

calls made after her phone was stolen. She gave the phone

numbers of those calls to the investigating detective. Id . at 56

-

57.

On November 11, 2011, the day after the robbery, a

detective came to Beyan’s home and show ed her a photo array

containing eight photographs, one of which depicted [Kpaan].

She circled [Kpaan’s] picture, and wrote underneath it her name,

the date, the time, and “100% sure (no doubt)”. This photo

array, thus marked, became Commonwealth Exhibit 11. After

she identified [Kpaan], her immediate family members looked at

his photograph. Id . at 57

- 61.

On the night of November 20, 2011, Beyan went to the

scene of a party to identify [Kpaan], after her stepbrother told

her stepfather that he had seen [Kpaan] at the party. Police

officers met Beyan and her stepfather at the party, where a

bouncer brought [Kpaan] outside to Beyan, who identified him

as the man who robbed her. The officers then attempted to take

him into custody, but [Kpaan] ran. The o fficers gave chase, and

after [Kpaan] was caught, Beyan was taken to that location

where she identified him again. Id . at 61

- 68.

[Kpaan was arrested and charged with Robbery, Robbery

of a Motor Vehicle, Terroristic Threats, Simple Assault, Reckless

Enda ngerment of Another Person (REAP), Possession of an

Instrument of Crime, and numerous firearm charges. At trial,]

Detective Vincent Parker testified that he was given the phone

numbers that had been called on Beyan’s cell phone after the

robbery, and that when he called one of them, a female

individual who identified herself as Alexis Rivera answered the

phone. He met with Rivera, and later prepared warrants for

Beyan’s phone records as well as Rivera’s. Those records

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confirmed that at 11:20 a.m. on the day of the robbery, Beyan’s

phone was used to call Rivera. Id . at 92

- 104.

Teresa Paris, Custodian of Records for the Philadelphia

State Prison, keeps records of visits to incarcerated people. She

confirmed that Alexis Rivera had visited [Kpaan] on 21 oc casions

during his pretrial detention. Id . at 153

- 158. On April 15, 2013,

Alexis Rivera came to the Criminal Justice Center, as she had

been subpoenaed to testify. According to Detective Parker, Ms.

Rivera had been waiting in the hallway outside the cou rtroom

where the proceedings were held, and she was crying, shaking,

and speaking loudly. When Parker met her in the hallway, she

told him that she was going to the bathroom, and then she left

the area and did not return. Id . at 110

- 112.

The defense p resented alibi witness Margaret Kpaan,

[Appellant’s] mother, who testified that [Kpaan] was at home all

day on the day of the robbery, and that at the time of the

robbery, he wore a goatee and a moustache. Id . at 167

- 172.

Beyan had told the police that t he person who robbed her was

clean

- shaven. Id . at 73.

* * *

Trial Court Opinion, 10/18/13 at 2

- 4.

On April 16, 2013, a jury convicted Kpaan of all charges. 1 

### On June 17,

2013, the trial court imposed an aggregate term of 71⁄2 to 25 years’

imprisonment. This appeal followed.

Kpaan raises the following issues for our review.

A. Whether the court erred in denying that the evidence of visits

to [Kpaan ] in prison by a person allegedly named Alexis

Rivera, coupled with the hearsay testimony that a person also

named Alexis Rivera received a phone call from the victim’s

cell phone shortly after the robbery, without any testimony by

____________________________________________

1 

### The Simple Assault and REAP charges were nolle prossed, and the trial

court additionally convicted Kpaan of Persons not to Possess Firearms.

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- any person named Alexis Rivera at trial, was more prejudicial

than probative?

B. Whether it was error for the court below to allow the

prosecution to bolster its purported identification evidence by

showing that [Kpaan] ran away from police on seeing them

outside a bar, while denyin g the defense any opportunity to

show reasons why he would do so, independent of any

“consciousness of guilt”? Thus, the court invited the jury to

draw the inference that [Kpaan’s] “flight” alone, was enough

to allow police, and the law, to infer “probabl e cause of

guilt.[”]

C. Whether the contradictory identification testimony as to

whether the robber had face hair or was smooth shaven

necessitated a “Kloiber” instruction to the jury?

D. Whether it was error, and an abuse of discretion, for the court

to allow [ Kpaan’s] identification photograph upon which the

complainant had hand

- written virtually the same words to

which she testified, about her “certainty” of [Kpaan’s]

identification, to be given to the jury for review during

deliberation, thus permitting the j ury to have the equivalent

of a transcript of the complainant’s trial testimony during

deliberations?

Appellant’s Brief at 2 (unnecessary capitalization omitted).

Preliminarily, we note that issues B. and C. Kpaan now raises on

appeal were not included in the court

- ordered Rule 1925(b) Statement of

Matters Complained of on Appeal filed on October 15, 2013. Rule

1925(b)(4)(vii) explicitly states that “ [i] ssues not included in the Statement

and/or not raised in accordance with the provisions of this para graph (b)(4)

are waived.” I n Commonwealth v. Lord , 553 Pa. 415, 719 A.2d 306

(1998), the Pennsylvania Supreme Court reaffirmed the principle that any

issues not raised in a Rule 1925(b) statement will be deemed waived. 553

Pa. at 420, 719 A.2d at 309. W e are therefore constrained to find that

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-

Kpaan has waived issues B. and C. by failing to raise them in his court

ordered 1925(b) statement.

We proceed to address the remaining issues Kpaan has preserved on

appeal. With our standards of review in mind, we have examined the

certified record, the briefs of the parties, Judge McDermott’s memorandum

opinion, and the applicable law, and we find that the lower court ably and

methodically addressed the issues Kpaan presented on appeal. 2 

### Accordingly,

we affirm on the basis of Judge McDermott’s memorandum opinion. See

Trial Court Opinion, 10/18/13.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/2014

____________________________________________

2 

### The trial court additionally addresses a third issue regarding t he

Commonwealth’s cross

- examination of Kpaan’s mother. As Kpaan has not

included this issue in his appellate brief, we find that he has abandoned this

issue on appeal.Circulated 10/27/2014 02:13 PMCirculated 10/27/2014 02:13 PMCirculated 10/27/2014 02:13 PMCirculated 10/27/2014 02:13 PMCirculated 10/27/2014 02:13 PMCirculated 10/27/2014 02:13 PMCirculated 10/27/2014 02:13 PMCirculated 10/27/2014 02:13 PM