Com. v. Pultro, R. ( 2017 )

J-A02036-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RITA ELIZABETH PULTRO
Appellant No. 1593 EDA 2015
Appeal from the Judgment of Sentence May 1, 2015
in the Court of Common Pleas of Delaware County Criminal Division
at No(s): CP-23-CR-0007119-2013
BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 08, 2017
Appellant, Rita Elizabeth Pultro, appeals1 from the judgment of
sentence entered in the Delaware County Court of Common Pleas after a
jury found her guilty of murder of the first degree,2 robbery,3 conspiracy,4
and carrying a firearm without a license.5 Appellant claims that the trial
court erred in denying her motion to suppress evidence obtained from a
search of her cellphone, denying her motions to sever her case from her
* Former Justice specially assigned to the Superior Court.
1The appeals of Appellant’s codefendants, Tariq Mahmud and David Wiggins,
are listed at J-A02035-17 and J-A02037-17, respectively.
2 18 Pa.C.S. § 2502(a).
3 18 Pa.C.S. § 3701(a)(1)(i).
4 18 Pa.C.S. § 903.
5 18 Pa.C.S. § 6106(a).
J-A02036-17
codefendants, and admitting into evidence incriminating messages from her
cellphone without adequate authentication. We affirm.
Appellant’s conviction arises from the killing of Jason McClay at a Rite
Aid store in the City of Chester, where McClay was a manager. The
Commonwealth alleged the following. In August and September 2013, Tariq
Mahmud was employed as loss prevention agent at the Rite Aid store.
Mahmud, Ashaniere White, and Christopher Parks planned to rob the Rite Aid
store. Mahmud told White and Parks about how much money was kept in
the store’s safe, who was working, and about blind spots in the store’s video
surveillance system. Mahmud warned them not to try to rob the store when
McClay was working, because he was a former marine who would fight back.
On August 19, 2013, White and Parks robbed the Rite Aid store when
McClay was not on duty. On August 26 and September 4, 2013, White and
Parks again attempted to rob the store, but employees recognized White.
Mahmud, White, and Parks thereafter sought the assistance of new
people to rob the store, and brought David Wiggins into their plans. Wiggins
wanted another individual, Appellant, to participate as well. The group
planned a robbery for September 18, 2013, but postponed it until
September 19, 2013.
On September 19, 2013, McClay worked the day shift at the Rite Aid
store and stayed for the evening shift due to the unavailability of another
manager, Serita Cottman. Mahmud called out from work that day. At
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approximately 9:45 p.m., an employee saw a white female, later identified
as Appellant, and a black male, later identified as Wiggins, enter the store.
Appellant retrieved a light bulb and took it to the counter. When the
employee told her the amount due, Appellant complained that it was too
expensive, placed the item back on the shelf, and asked to see the manager.
McClay went back to the aisle, and he and Appellant began discussing
lightbulbs. Wiggins then grabbed McClay and told McClay to take him to the
safe. Wiggins and McClay began wrestling until Appellant shot McClay at
close range at the base of his neck and killed him. Appellant and Wiggins
fled from the store and left the scene in a vehicle driven by Parks.
The investigation into the shooting revealed that Wiggins left a palm
print in the Rite Aid store. Investigators obtained a photograph of Wiggins
and showed it to two employees, and they both identified Wiggins as one of
the robbers. Wiggins was arrested on September 21, 2013, and admitted
his role in the robbery. Wiggins identified Appellant as the other person with
him in the store. Investigators also learned that Appellant was in contact
with her friends and sister and obtained a new cellphone after the killing.
Appellant was arrested on September 22, 2013. Following her arrest,
investigators obtained a warrant to search to Appellant’s new phone. The
search of Appellant’s cellphone revealed that Appellant made inculpatory
statements to her friend, whom she referred to as her wife, indicating that
she “caught a body” and needed a “place to lay low.” N.T., 2/2/15, at 208.
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Appellant referenced the Rite Aid store in the news and also related that
there was “a robbery gone wrong,” and that police told “her brother” that he
could face the death penalty, but she would not let him die for her. Id. at
209-10, 211.
Mahmud, Parks, and White were subsequently arrested. Parks and
White pleaded guilty to third-degree murder in exchange for their
cooperation, and the Commonwealth dropped charges of second-degree
murder against them.
Appellant filed an omnibus pretrial motion seeking suppression of the
evidence obtained from her phone and severance of her trial from
codefendants. The trial court denied the motions on December 24, 2014.
Appellant, Mahmud, and Wiggins proceeded to a joint jury trial for the
September 19, 2013 robbery and killing of McClay. Parks and White testified
against them. The Commonwealth also introduced numerous text messages
between the various parties, as well as Appellant’s messages to her friend.
The jury found Appellant guilty of first-degree murder, robbery, and
conspiracy. The trial court sentenced Appellant to life imprisonment on May
1, 2015.
Appellant timely appealed and complied with the trial court’s order to
submit a Pa.R.A.P. 1925(b) statement. This appeal followed.
Appellant presents the following questions for review:
1. Whether the search of Appellant’s cell phone, seized
incident to her arrest, was in violation of the Fourth and
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Fourteenth Amendments to the United States Constitution
and Article 1 Section 8 of the Pennsylvania Constitution,
where the warrant issued for the search of the phone failed
to establish probable cause that the phone contained
evidence of the crime.
2. Whether Appellant’s rights to a fair trial, due process of
law and confrontation of witnesses under the Fourth, Fifth,
Sixth and Fourteenth Amendments to the United States
Constitution and Article 1 Sections 8 and 9 of the
Pennsylvania Constitution, were violated by denial of
Appellant’s motion to sever her trial from co-defendant
David Wiggins, where Wiggins’ confession to police,
redacted to remove references to Appellant by name,
nonetheless implicated Appellant by virtue of other
evidence introduced at trial.
3. Whether Appellant’s right to due process and a fair trial,
guaranteed by the Fourth, Fifth and Sixth Amendments to
the United States Constitution and Article I Sections 8 and
9 of the Pennsylvania Constitution, as well as Pa.R.Crim.P.
Rules 582 and 583, violated by the joinder of Appellant's
trial with co-defendant Tariq Mahmud, where evidence was
introduced at the joint trial that Mahmud was involved in
three prior robberies of the same store, robberies in which
Appellant played no part and evidence of which would not
have been admissible at Appellant’s trial.
4. Whether the trial court committed error of law and
abuse of discretion, and violated Appellant’s right to a fair
trial and due process of law, in admitting into evidence,
incriminating text messages obtained from Appellant’s cell
phone, where the Commonwealth failed to properly
authenticate the text messages.
Appellant’s Brief at 4-5.
Appellant first claims that the trial court erred in denying her motion to
suppress evidence obtained from her cellphone pursuant to a search
warrant. Relying on Commonwealth v. Wright, 99 A.3d 565 (Pa. Super.
2012), she contends that the affidavit of probable cause failed to
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demonstrate that the phone was of evidentiary value or contained
information related to the crimes. We disagree.
When reviewing a trial court’s denial of a motion to suppress evidence
obtained pursuant to warrant,
[we are] limited to determining whether the suppression
court’s factual findings are supported by the record and
whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before 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
context of the record as a whole. Where the suppression
court’s factual findings are supported by the record, [the
appellate court is] bound by [those] findings and may
reverse only if the court’s legal conclusions are erroneous.
Where . . . the appeal of the determination of the
suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the
suppression court properly applied the law to the facts.
Thus, the conclusions of the courts below are subject to [ ]
plenary review.
Commonwealth v. Parker, 161 A.3d 357, 361-62 (Pa. Super. 2015)
(citation omitted).
Article I, Section 8 and the Fourth Amendment each
require that search warrants be supported by probable
cause. “The linch-pin that has been developed to
determine whether it is appropriate to issue a search
warrant is the test of probable cause.” “Probable cause
exists where the facts and circumstances within the
affiant's knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to
warrant a man of reasonable caution in the belief that a
search should be conducted.”
[T]he United States Supreme Court established the
“totality of the circumstances” test for determining
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whether a request for a search warrant under the Fourth
Amendment is supported by probable cause. [The
Pennsylvania Supreme] Court adopted the totality of the
circumstances test for purposes of making and reviewing
probable cause determinations under Article I, Section 8.
In describing this test, [the Pennsylvania Supreme Court]
stated:
Pursuant to the “totality of the circumstances” test .
. . the task of an issuing authority is simply to make
a practical, common-sense decision whether, given
all of the circumstances set forth in the affidavit
before him, including the veracity and basis of
knowledge of persons supplying hearsay information,
there is a fair probability that contraband or evidence
of a crime will be found in a particular place. . . . It is
the duty of a court reviewing an issuing authority’s
probable cause determination to ensure that the
magistrate had a substantial basis for concluding
that probable cause existed. In so doing, the
reviewing court must accord deference to the issuing
authority’s probable cause determination, and must
view the information offered to establish probable
cause in a common-sense, non-technical manner.
***
[Further,] a reviewing court [is] not to conduct a de
novo review of the issuing authority’s probable cause
determination, but [is] simply to determine whether
or not there is substantial evidence in the record
supporting the decision to issue the warrant.
As our United States Supreme Court stated: “A grudging or
negative attitude by reviewing courts towards warrants . .
. is inconsistent with the Fourth Amendment’s strong
preference for searches conducted pursuant to a warrant;
courts should not invalidate warrants by interpreting
affidavits in a hypertechnical, rather than a commonsense,
manner.”
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Commonwealth v. Jones, 988 A.2d 649, 655-56 (Pa. 2010) (citations and
footnote omitted). A search warrant generally is required to search the
contents of a cellphone. See Riley v. California, 134 S. Ct. 2473 (2014).
In Wright, the police executed a warrant to arrest the defendant for a
double homicide and a detective seized a cellphone on the nightstand next
to where the defendant was found sleeping. Wright, 99 A.3d at 567-68.
The trial court granted the defendant’s motion to suppress concluding that
the phone was not seized incident to arrest. Id. at 568. The
Commonwealth appealed.
The Wright Court affirmed, holding that the seizure of the cellphone
was improper under the plain view doctrine because the Commonwealth
established that the incriminating nature of the cellphone was not
immediately apparent. Id. at 569-70. The Court observed that an item
may be immediately incriminating when officers “articulate specific evidence
tying the seized object to the crime under investigation.” Id. at 570
(discussing Commonwealth v. Ellis, 662 A.2d 1043 (Pa. 1995),
Commonwealth v. Jones, 988 A.2d 652 (Pa. 2010), and Commonwealth
v. McEnany, 667 A.2d 1148 (Pa. Super. 1995)). In the case before it,
however, the detective seized the defendant’s phone merely because “cell
phones often have crucial pieces of evidence for our case,” the defendant
had a prior relationship with one of the victims, and the detective suspected
that “he would find communication between the two shortly prior to the
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murder.” Id. The Court concluded that the detective’s testimony fell short
of evidence linking the phone to a crime and it was “pure conjecture” to
believe that the phone or its contents were incriminating. Id. We
emphasized that there was no evidence that the defendant had called the
victim, as in McEnany, and no physical evidence, such as blood, on the
phone itself, as in Jones. Id.Instantly, the affidavit of probable cause recited facts related to the
initial investigation into the killing of McClay, including the identification of
Wiggins, Wiggins’ arrest, and Wiggins’ identification of Appellant as his
accomplice. Of relevance to this appeal, the affidavit contained information
that two individuals identified Appellant from surveillance photographs taken
at the Rite Aid, that one of those witnesses, who knew Appellant for more
than twenty years, communicated with Appellant by phone and text
message within three days after the murder. The affidavit further stated:
It was also learned during this investigation that
[Appellant] communicated with persons other than witness
#6 via cellular telephone calls and text messaging on or
about Friday September 20, 2013 trough [sic] Sunday
September 22, 2013.
Your Affiant Detective Michael Jay, Delaware County
Criminal Investigation Division Homicide Unit was assigned
to assist with this investigation. Your Affiant has
conducted and participated in numerous Homicide
investigations, where cellular telephones were used by the
actors and or victims before, during and after the crime.
Your Affiant knows through training and experience that
persons who conspire to commit crime together may use
various forms of communication, including, but not limited
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to cellular telephones, to plan the crime or communicate
information subsequently in an attempt to conceal the
crime. Your Affiant also knows that demonstrating
communication between two persons involved in a crime
may assist in providing evidence of the conspiracy.
Aff. of Probable Cause, 9/25/13, at 4. Lastly, when taken into custody,
Appellant had the cellphone in her possession and admitted that she was
aware she was under investigation for “the robbery in Chester.” Id.Thus, the affidavit of probable cause presented evidence far stronger
than in Wright, and the trial court correctly ruled that there was probable
cause to search Appellant’s phone. See Trial Ct. Op., 5/18/16, at 7-9. The
affidavit established a fair probability that Appellant was a participant in the
robbery and shooting and had conspired to do so. In addition, Appellant
used the phone to communicate several days after the shooting and
admitted she was a suspect for the robbery in Chester. Accordingly, there
was probable cause to believe that evidence related to a conspiracy, a
robbery, and the resulting the homicide could be found in Appellant’s phone.
See Jones, 988 A.2d at 655–56. Accordingly, no relief is due.
Appellant’s second and third claims focus on the trial court’s denial of
her motions to sever her case from her codefendants. Our review is
governed by the following precepts:
Whether cases against different defendants should be
consolidated for trial “is within the sole discretion of the
trial court and such discretion will be reversed only for a
manifest abuse of discretion or prejudice and clear
injustice to the defendant.” Procedurally, Rule 582 of the
Pennsylvania Rules of Criminal Procedure governs the
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joinder of separate criminal informations. Rule 582
dictates, in pertinent part, as follows:
(1) Offenses charged in separate indictments or
informations may be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is
capable of separation by the jury so that there is
no danger of confusion; or
(b) the offenses charged are based on the same
act or transaction.
Pa.R.Crim.P. 582(A). The severance of offenses is
governed by Pa.R.Crim.P. 583, which states that the trial
court “may order separate trials of offenses or defendants,
or provide other appropriate relief, if it appears that any
party may be prejudiced by offenses or defendants being
tried together.” Pa.R.Crim.P. 583.
Based upon these rules, our Supreme Court has
formulated the following test for deciding the merits of a
motion to sever:
Where the defendant moves to sever offenses not
based on the same act or transaction that have been
consolidated in a single indictment or information, or
opposes joinder of separate indictments or
informations, the court must [ ] determine: [1]
whether the evidence of each of the offenses would
be admissible in a separate trial for the other; [6] [2]
whether such evidence is capable of separation by
the jury so as to avoid danger of confusion; and, if
the answers to these inquiries are in the affirmative,
6 The parties contest whether the admissibility of evidence prong is proper
when analyzing the joinder of cases involving separate defendants whose
offenses arise from a single incident. See Appellant’s Brief at 36-37;
Commonwealth’s Brief at 44-45 (discussing Commonwealth v. O’Neil, 108
A.3d 900 (Pa. Super. 2015)).
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[3] whether the defendant will be unduly prejudiced
by the consolidation of offenses.
Commonwealth v. Melvin, 103 A.3d 1, 28-29 (Pa. Super. 2014) (some
citations omitted).
“[J]oint trials are preferred where conspiracy is charged.
[Nevertheless, s]everance may be proper where a party
can establish the co-defendants’ defenses are so
antagonistic that a joint trial would result in prejudice. . . .
However, the party seeking severance must present more
than a mere assertion of antagonism[.]”
Commonwealth v. Housman, 986 A.2d 822, 934 (Pa. 2009).
In her second issue, Appellant asserts that she was entitled to a
separate trial from Wiggins because she suffered a Bruton7 violation based
on the admission of Wiggins’ confession. She asserts that the trial evidence
made clear that she was the individual referred to in Wiggins’ statement
detailing the September 21, 2013 robbery, despite the redactions to the
statement. Appellant acknowledges that the Pennsylvania Supreme Court
has held that certain redactions of a non-testifying codefendant’s confession
do not violate Bruton. Nevertheless, she argues that the United States
Third Circuit Court of Appeals decision in Vazquez v. Wilson, 550 F.3d 270(3d Cir. 2008), stands as “an example why Pennsylvania’s approach to
Bruton and its progeny, as set out in [Commonwealth v. Travers, 768
A.2d 845 (Pa. 2001)], is incorrect.” Appellant’s Brief at 33. No relief is due.
7 Bruton v. United States, 391 U.S. 123 (1968).
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In Travers, the Pennsylvania Supreme Court set forth guidance
regarding Bruton claims.
In Bruton, the trial court admitted into evidence at a joint
trial the confession of Bruton’s non-testifying co-
defendant, which named and incriminated Bruton in the
armed robbery on trial. The court instructed the jury that
the confession “if used, can only be used against [Bruton's
co-defendant],” and could not be considered in the case
against Bruton. The Supreme Court reversed, holding that
the admission of the facially incriminating statement by
the non-testifying co-defendant violated Bruton’s right of
cross-examination guaranteed by the confrontation clause
of the Sixth Amendment, notwithstanding the jury charge.
The Court reasoned that:
There are some contexts in which the risk that the
jury will not, or cannot, follow instructions is so
great, and the consequences of failure so vital to the
defendant, that the practical and human limitations
of the jury system cannot be ignored . . . Such a
context is presented here, where the powerfully
incriminating extrajudicial statements of a
codefendant, who stands accused side-by-side with
the defendant, are deliberately spread before the
jury in a joint trial. Not only are the incriminations
devastating to the defendant but their credibility is
inevitably suspect. . . . The unreliability of such
evidence is intolerably compounded when the
alleged accomplice, as here, does not testify and
cannot be tested by cross-examination.
In response to Bruton, courts approved the practice of
redacting confessions of non-testifying co-defendants to
remove references that expressly implicated the
defendant.
Travers, 768 A.2d at 847 (citations omitted). After tracing United States
Supreme Court decisions following Bruton, the Travers Court held that
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redaction of a non-testifying codefendant’s with neutral pronouns, coupled
with cautionary instructions, would not violate Bruton. Id. at 851.
Moreover, the Pennsylvania Supreme Court has repeatedly rejected a
“contextual implication theory”—that is, the linkage between the redacted
statement and other evidence to implicate a specific defendant—“as a
blanket rule.” Commonwealth v. Rainey, 928 A.2d 215, 227 (Pa. 2007).
Instead, our Supreme Court instructs that the danger posed by contextual
implication “merely requires the trial court, and the reviewing court, to
balance the interests, i.e., the potential prejudice to the defendant versus
the probative value of the evidence, the possibility of minimizing the
prejudice, and the benefits to the criminal justice system of conducting joint
trials.” Id. at 228 (citation omitted).
Here, the statement by Wiggins implicating Appellant was redacted
and presented to the jury in the following exchange between the
Commonwealth and Detective David Tyler:
[Commonwealth:] And question at page 2: “And we’re
going to ask you a few questions. Tell us about what
happened that night.” What was Mr. Wiggins' response?
A “Me and this other person, we hooked up. They said
we’re supposed to rob the Rite Aid that night.”
Q Question: “And how long have you known the other
person?”
A Answer: “For a couple weeks now, three to be exact.”
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Q Question: “Okay. All right. Tell us what about how --
what was planned or what happened?"
A Answer: "Well, this person came to me with a plan a
couple days before we were supposed to do it. They was
supposed to be at the Rite Aid out of Chester. This person
told me a tall, fat girl was supposed to be working and a
short, brown-skinned girl was supposed to be working.”
Q Question: “At the Rite Aid that night?”
***
Q . . . “So the other person parks the car up on just say
on 10th Street underneath some trees. That’s where you
guys got out?” Answer?
A “Yes, sir.”
Q Question: “And you start walking in?”
A “Yes, sir.”
Q Question: “You go in?”
A “Yes, sir.”
Q “Where do you go?”
A “I just start walking around the store down and met up
in the aisle where the light bulbs was at.”
Q And this is Detective Collins: “Was anyone else in the
store? Could you tell if anyone else was in the store that
wasn’t an employee?”
A “I mean, I think it was like two customers in the store.
If people -- it was a man and a woman in the pharmacy.”
Q And more of a statement, but the question goes,
“Okay.” And then you ask a question, and you’re
identified: “So when you guys finally meet back at the light
bulbs?” Answer?
A “Yes, sir.”
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Q Question: “Was anything said like let’s go get it?"
A “No, sir. The manager came. He bent down, and went
to show what lights they had. I grabbed him and said take
me to the safe. We got into an altercation.”
Q Question: “How did you grab him?”
A “From the back of his shoulders like the back of his
shirt, grip it up his shirt.”
Q Question: “Did you act like you had anything in his back
like your two fingers?”
A “No, sir. Both of my hands were on him.”
Q Question: “Okay. You told him take me to the safe.”
A “Yes, sir.”
Q “And what happens then?”
A “We start struggling. He gripped me up. I gripped him
up. Then I pushed him off me. Went to turn and run, and
I was running, I heard a pop.”
N.T., 2/9/17, at 132-33, 141-42.
The trial court also issued a cautionary instruction during its charge to
the jury:
There’s a rule that restricts use by you of the evidence
offered to show that the Defendant, David Wiggins, made
a statement concerning the crimes charged. The
statement made before trial may be considered as
evidence only against the Defendant who made that
statement. Thus, you may consider the statement as
evidence against the Defendant David Wiggins if you
believe he made the statement voluntarily. You must not
consider the statement as evidence against any of the
other Defendants.
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N.T., 2/11/15, at 24.
We conclude that the redactions to Wiggins’ statement were neutral,
did not expressly implicate Appellant, did not otherwise reveal Appellant’s
identity, and did not suggest that Appellant’s name had been removed.
Thus, the redaction comports with Pennsylvania law, and in conjunction with
the trial court’s cautionary instruction, we have no basis to grant Appellant
relief. Travers, 768 A.2d at 847. To the extent that Appellant relies on the
federal court’s decision Vazquez in support of a contextual implication
theory, that case does not control. See Commonwealth v. Daniels, 104
A.3d 267, 294 (Pa. 2014) (rejecting parties’ reliance on Vazquez as non-
binding decision from another jurisdiction). Therefore, we discern no basis
to disturb the trial court’s refusal to sever the trials of Appellant and
Wiggins.
In Appellant’s third claim, she claims that she was entitled to a
separate trial from Mahmud. She contends, in a single sentence, that the
evidence of the prior robbery and attempts to rob the Rite Aid store were
inadmissible against her because she was not involved in those incidents.
She further suggests that she suffered prejudice because the jury heard
extensive testimony regarding those incidents and was cast together with
the unsavory characters, including White and Parks, involved in those
incidents. No relief is due.
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There is no dispute the prior incidents were properly admitted against
Mahmud to show knowledge, preparation, planning, and motive related to
the conspiracy initiated by him, White, and Parks. While it is apparent that
Appellant was not known to Mahmud, White, or Parks at the time of the first
three incidents at the Rite Aid store, the prior incidents provided information
necessary to the development of this case and Appellant’s ultimate role in
the robbery at issue at trial. Specifically, although the first robbery was
successful, the second two attempts were thwarted because employees
recognized White. By the second attempt, the Rite Aid store had posted a
wanted poster of White. Mahmud, White, and Parks then elected to bring in
an additional person, Wiggins, for the next planned robbery. Wiggins
insisted that Appellant participate. Thus, the admission of the robberies was
arguably proper against Appellant to establish the history of the case and
how she became involved in the robbery of the Rite Aid store. See
Commonwealth v. Serrano, 61 A.3d 279, 286 (Pa. Super. 2013)
(concluding codefendant’s sales of controlled substance in separate county,
which led to investigation revealing other defendant’s participation in
narcotics trafficking, was admissible against other defendant to show history
of the other defendant’s case).
Even assuming the evidence regarding Mahmud’s prior bad acts was
not admissible, however, no relief is due. The admissibility or inadmissibility
of the evidence in a separate trial is not determinative. See Housman, 986
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A.2d at 834-35 (noting codefendant’s admission of evidence against the
defendant would not have been admissible in a separate trial, but fining no
relief was due because prejudice was de minimis and did not overcome the
factors in favor of the joint trial). The incidents were easily separable in
time, by the participants of those crimes, and Appellant’s clear lack of
participation in the planning or execution of those crimes. Moreover, the
evidence presented was not so inflammatory as to render the jury incapable
of deciding fairly the charges against Appellant. Additionally, the trial court
issued a cautionary instruction with respect to Mahmud’s prior bad acts and
that they should not be considered when evaluating the charges against any
other defendant. Therefore, Appellant’s assertion that the trial court erred in
denying severance from Mahmud’s trial lacks merit.
Appellant’s final claim is that the trial court erred when admitting
evidence of her text messages without sufficient indicia of authenticity. She
argues that no witness testified she authored the inculpatory messages to
her friend, and that there was insufficient circumstantial evidence in the
content of the messages to establish that she sent them. She notes that the
killing of McClay garnered news coverage and the incident at the Rite Aid
store was a matter of public knowledge. We disagree.
It is well settled that the
[a]dmission of evidence is within the sound discretion of
the trial court and will be reversed only upon a showing
that the trial court clearly abused its discretion.
Admissibility depends on relevance and probative value.
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Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue
more or less probable or supports a reasonable inference
or presumption regarding a material fact.
***
Pennsylvania Rule of Evidence 901 provides that
authentication is required prior to admission of evidence.
The proponent of the evidence must introduce sufficient
evidence that the matter is what it purports to be. Pa.R.E.
901(a). Testimony of a witness with personal knowledge
that a matter is what it is claimed to be can be sufficient.
Pa.R.E. 901(b)(1). Furthermore, electronic writings
typically show their source, so they can be authenticated
by contents in the same way that a communication by
postal mail can be authenticated. Circumstantial evidence
may suffice where the circumstances support a finding that
the writing is genuine.
***
[A]uthentication of electronic communications, like
documents, requires more than mere confirmation that the
number or address belonged to a particular person.
Circumstantial evidence, which tends to corroborate the
identity of the sender, is required.
Commonwealth v. Koch, 39 A.3d 996, 1002-03, 1005 (Pa. Super. 2011)
(citations omitted), aff’d by evenly divided Court, 106 A.3d 705 (Pa. 2014).
Instantly, the string of text messages to and from Appellant’s friend
began with the sender stating, “It’s me your wife Rita.” The sender then
indicated that she had to “lay low” and asked her friend whether she had
seen the news about the Rite Aid store. N.T., 2/2/15, at 208-10. The
sender then stated she “caught a body.” Id. at 208. At trial, the friend
testified that she knew Appellant, and they called each other “wife.” These
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J-A02036-17
messages contained information consistent with a person being involved in
the crime at Rite Aid. Thus, there was ample circumstantial evidence
supporting the trial court’s determination that the Commonwealth met its
threshold burden of establishing that the text messages were what the
Commonwealth purported them to be, namely, messages from Appellant.
See Koch, 39 A.3d at 1005. Therefore, Appellant’s challenge to the
authenticity of the inculpatory message fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
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