Commonwealth v. Lark, 91 A.3d 165

Background

On March 25, 2010, Appellee Basir Lark allegedly shot and killed Aubrey Brown in front of the home where Brown had been visiting; nine‑year‑old S.B. was present and later provided a statement to police.
S.B. was interviewed at police headquarters separately from her mother; she gave a verbal physical description of the shooter to Detective Crystal Williams and reviewed a written statement with her mother afterward without changes.
The next day police, relying on a confidential informant tip, prepared photo arrays that included Lark; S.B. viewed one array at home with her mother present and selected Lark’s photo; the mother separately selected Lark from a different array.
Lark was charged with first‑degree murder, firearms offenses, and PIC. He moved to suppress S.B.’s out‑of‑court photographic identification and any in‑court identification deriving from it.
The suppression court granted the motion, finding the identification unreliable/tainted (in part because S.B. had contact with her mother before and during the identification) and that S.B. may not have had an opportunity to observe the shooter. The Commonwealth appealed.
The Superior Court majority vacated the suppression order, holding the record lacked evidence of police misconduct or suggestiveness and that the trial court’s factual inferences (mother tainting ID; child not observing shooting) were unsupported. A dissent argued the majority reweighed evidence and should defer to trial court factual findings.

Issues

Issue	Plaintiff's Argument (Commonwealth)	Defendant's Argument (Lark)	Held
Whether the suppression court erred in excluding S.B.’s out‑of‑court photo identification as tainted by the mother’s presence	Mere presence of mother in waiting room / at home during array did not render ID unreliable; no police misconduct or suggestiveness	Mother’s presence and opportunity to confer tainted the identification; child may have been influenced; also argued child might not have seen shooter	Vacated suppression: no record evidence mother actually influenced S.B.; suppression court relied on unsupported inferences; identification not shown unduly suggestive
Whether in‑court ID should be suppressed absent suggestive pretrial procedure or where witness has independent basis	Even if suggestiveness claimed, record shows independent basis (earlier description by S.B.) and no police misconduct; in‑court ID should be allowed	Pretrial taint would contaminate in‑court ID	Court did not reach detailed independent‑basis test because it found no suggestiveness; concluded suppression of potential in‑court ID was unwarranted
Whether trial court’s factual findings (child inside house/not observing shooter; conferring with mother) must be accepted on appeal	Commonwealth: trial court’s findings not supported by record; appellate court may reverse where findings lack record support	Lark: trial court credited testimony supporting its findings and appellate court must defer	Majority: reversed trial court conclusions as unsupported; Dissent: argued appellate court impermissibly reweighed evidence and should defer
Whether mere possibility of conferring justifies exclusion of ID	Commonwealth: possibility is insufficient without evidence of actual influence or police misconduct	Lark: risk of influence in presence of parent makes ID unreliable given child’s age	Held for Commonwealth: suppression requires evidence of improper police conduct or suggestiveness; possibility alone insufficient

Key Cases Cited

In re O.J., 958 A.2d 561 (Pa. Super. 2008) (standard of review for suppression appeals)
Commonwealth v. Kubis, 978 A.2d 391 (Pa. Super. 2009) (pretrial suggestiveness is a factor; suppression only where procedure creates substantial likelihood of irreparable misidentification)
Commonwealth v. Sanders, 42 A.3d 325 (Pa. Super. 2012) (suppression aimed at preventing improper police action; absent improper conduct suppression not warranted)
Commonwealth v. Jarecki, 609 A.2d 194 (Pa. Super. 1992) (collective identification and mutual discussion among witnesses can taint photo identifications)
Commonwealth v. Armstrong, 74 A.3d 228 (Pa. Super. 2013) (reliability is central inquiry under totality of circumstances)