Com. v. White, M. ( 2020 )

J-S48034-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MATTHEW WHITE :
:
Appellant : No. 595 EDA 2019
Appeal from the Judgment of Sentence Entered February 7, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001856-2017,
CP-51-CR-0001857-2017
BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 29, 2020
Matthew White (Appellant) appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas, following his jury
convictions, at trial docket CP-51-CR-0001856-2017 (Case 1856), of
aggravated assault, robbery,1 and related offenses. He avers the trial court
erred in: (1) consolidating two dockets for trial; (2) admitting Facebook photos
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1 18 Pa.C.S. § 2702(a), 3701(a)(1)(iv). As we discuss infra, Appellant was
also convicted of second-degree murder, 18 Pa.C.S. § 2502(b), and related
offenses at trial docket CP-51-CR-0001857-2017 (Case 1857). He took an
appeal in that case, which was docketed in this Court at 594 EDA 2019.
However, that appeal was dismissed on June 19, 2019, for failure to file a
brief.
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and telephone records, on the grounds they were not authenticated; and (3)
failing to dismiss the charges due to a Brady2 violation. We affirm.
Appellant was charged at Case 1856 and Case 1857 for separate
offenses committed on consecutive nights. Over Appellant’s objection, the
trial court granted the Commonwealth’s motion to consolidate the two cases
for trial.3 The trial court has noted this case has a “complex procedural
history[, including] one change of trial counsel, three changes in prosecutors,
and five trial date continuances, borne primarily by the Commonwealth’s
inability to provide discovery in a timely manner.” Trial Ct. Op. at 1 n.1.
During or shortly after jury selection, on August 1, 2018, the Commonwealth
provided additional discovery — a photo array (discussed infra). On August
3rd, the trial court conducted a hearing, found the evidence was Brady
material, and continued trial so that Appellant “could review the material in
question and be afforded a fair trial.” Id. at 15-16. The presentation of
evidence commenced almost six months later, around January 28, 2019.
The trial court aptly summarized the evidence for Case 1856:
On January 7, 2017, [Appellant] contacted transgender sex
worker Ramiro Alejandro “Aly” Damian-Lopez via an
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2 Brady v. Maryland, 373 U.S. 83 (1963).
3 The trial court’s opinion states it granted consolidation on March 9, 2018,
the day after the Commonwealth filed a motion for same and Appellant filed
a response. See Trial Ct. Op., 4/12/19, at 1; Trial Docket, at 15
(unpaginated). However, we note, there is no corresponding entry on the trial
docket.
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advertisement placed on backpage.com. After exchanging a
series of text messages, [Appellant] arranged to meet at Damian-
Lopez’s home at 1309 North 52nd Street in West Philadelphia, as
he had done more than five times in the past. Upon arriving . . . ,
[Appellant] sought to speak with Damian-Lopez instead of
purchasing her services, and upon discovering that [Appellant] did
not have money, Damian-Lopez asked him to leave. [N.T.,
1/29/19, at 216-22.]
At approximately 10:00 p.m. on January 8, 2017, Damian-
Lopez and transgender housemates Miayanna Brooks and Saleem
Singleton, who also performed sex work, were watching a movie
in Damian-Lopez’s bedroom. . . . Singleton went to the kitchen
and [saw Appellant outside the window,] trying to get Singleton’s
attention . . . . [N.T., 1/29/19, at 11-12, 83-90, 222-23.]
After [Appellant] mentioned Damian-Lopez’s name, Singleton
opened the front door and asked him whether Damian-Lopez knew
he was there. Without answering, [Appellant] pushed Singleton
into the kitchen, pressed a 9mm pistol against Singleton’s ribs,
and warned, “Don’t fucking scream.” [Appellant] forced Singleton
into Singleton’s bedroom and demanded money. There, he stole
$70 from the dresser and a cell phone from Singleton’s purse.
Then, [Appellant] pointed his gun to the back of Singleton’s head
and forced Singleton to escort him to Damian-Lopez’s bedroom.
[N.T., 1/29/19, at 91-101.]
At [Appellant’s] behest, Singleton knocked on Damian-
Lopez’s door and asked her to slide approximately $40 under the
door. As Damian-Lopez attempted to retrieve the money,
[Appellant] forced open the door and pushed Singleton into the
room. Holding Brooks, Singleton, and Damian-Lopez at gunpoint,
[Appellant] demanded money, cell phones, and marijuana. As
Damian-Lopez, who recognized [Appellant] as a previous
customer, searched for money, [Appellant] forced Brooks and
Singleton to sit on the ground and stole two cell phones from the
bed and approximately $300-$400 from Damian-Lopez. Using his
gun to direct them, [Appellant] forced Brooks, Singleton, and
Damian-Lopez to crawl back into the kitchen, where he told them
that they were “too pretty to kill” and exited through the front
door. [N.T. 1/29/19, at 16-20, 100-13, 222-32.]
Brooks chased after [Appellant] to the parking lot outside the
JSSK Laundromat across the road at 1300 North 52nd Street,
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where Brooks yelled, “You fucking pussy.” Upon hearing this,
[Appellant] turned around and fired at Brooks, but missed. This
encounter was captured by the laundromat’s security cameras.
[N.T., 1/29/19, at 19 -20; Commonwealth Exh. C-9.]
[Brooks contacted police, who responded to the scene. The
complainants described Appellant] as a black male, approximately
twenty-six years old, wearing all black clothing, brandishing a
silver and black semiautomatic pistol, and having a teardrop
tattoo on his face. . . . The next day Detective Michael Kimmel
recovered video surveillance footage from the JSSK Laundromat
and one fired cartridge casing . . . from the crime scene. The
surveillance footage showed [Appellant] shoot at Brooks before
running in the direction of the camera, passing close enough to
permit witnesses to provide a positive identification from the
video. [N.T., 1/29/19, at 307-21; N.T., 1/30/19, at 197-221,
258-73.]
Trial Ct. Op., at 3-5.
The trial court also summarized the trial evidence for Case 1857:
At approximately 9:30 p.m. on January 9, 2017, [Appellant]
arranged to purchase the services of transgender sex worker
Vivian Royster via an advertisement on [b]ackpage.com[. He
arranged to meet her] at 5406 West Girard Avenue, which Royster
shared with [her paramour, Barry Jones (the decedent), and her
aunt, Betty Jones (unrelated).] When [Appellant] arrived, Royster
. . . recognized [him] as a previous client[. N.T., 1/30/19, at 5-
7, 13, 36-37].
In the bedroom, Royster asked for payment[. Appellant]
drew a silver and black semi-automatic pistol, pointed it at
Royster, and said “You know what this is.” Upon Royster
screaming and informing him that there was no money[,
Appellant] ransack[ed] the room, taking $30 and a cell phone
from a dresser. [N.T., 1/30/19, at 15-22.]
During the commotion, the decedent burst into the room and
began struggling on the bed with [Appellant] for the gun. During
the fight, [Appellant] pushed the decedent off the bed, aimed his
weapon and shot the decedent in the face twice. [Appellant] also
aimed his weapon at Royster and fired one shot and missed.
[Appellant] immediately ran down the steps, followed by Royster,
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where he turned around, fired once, and grazed Royster in the
shoulder before absconding. Betty Jones called 911[. N.T.
1/31/19, at 23-34.]
Trial Ct. Op. at 5-6. The decedent was pronounced dead that night. Id. at 6.
Royster was friends with Damian-Lopez and Singleton, the victims in the prior
night’s robbery. N.T. Trial, 1/29/19, at 250; N.T. Trial, 1/30/19, at 45.
The trial court summarized the police investigation of the two incidents:
After midnight on January 10, 2017, Royster [reviewed the
laundromat surveillance video and] identified the [person] on
[the] video as the same individual who killed the decedent.
Royster was unaware of [the prior night’s] incident at the time she
made the identification. At approximately 4:00 a.m., Royster
travelled to Singleton[ ] and Damian-Lopez’s apartment and
informed them about the shooting. [N.T., 1/29/19, at 132-37,
241-53; N.T., 1/30/19, at 40-47; Commonwealth Exh. C-39.]
* * *
[Around January 13 or 14, 2017,] Singleton received a
“Suggested Friends” Facebook notification[,] which directed [her]
to [Appellant’s] profile page[,4 which] contained multiple “selfie”
images of him. Having recognized [Appellant’s] “selfie” images as
depicting the perpetrator of the January 8, 2017 robbery,
Singleton took multiple “screenshot” photos of [Appellant’s]
Facebook profile through the smartphone’s camera and provided
them to Detective [William] Kelhower. On January 14, 2017,
detectives provided Brooks, Singleton, . . . Damian-Lopez[, and
Royster] with photo arrays containing [Appellant’s] image, and
each witness identified [Appellant] as their assailant. [N.T.,
1/29/19, at 20-34, 132-46; Commonwealth Exhs. C-10, C-16, C-
18, C-89, C-90, C-91.]
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4 Here, the trial court opinion states the Facebook profile “was listed under
[Appellant’s] name.” Trial Ct. Op. at 7. However, as we discuss infra, the
Commonwealth’s exhibits show a profile name of “Hamzah Allah’s Lion.”
Commonwealth Exh. 11.
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Philadelphia Police officers arrested [Appellant] the next day.
[I]nvestigators searched [Appellant’s] cell phone, numbered
(215) 416-5660, and discovered [he] employed an application
called “Sideline,” which allowed him to spoof a different number[,
(610)589-0673,] for caller identification purposes[. Investigators
also] discovered that [Appellant’s] phone, via Sideline, employed
the (610)589-0673 number to call Damian-Lopez’s and Royster’s
phones before both the robbery and the murder. Investigation of
[Appellant’s] internet search history revealed approximately 44
individual searches for pornographic videos depicting transgender
participants between December 24 and December 25, 2016.
[Appellant] further accessed advertisements for transgender sex
workers via backpage.com . . . on December 29, 2016 and at 1:15
a.m. on January 14, 2017. Approximately one hour after the
January 14, 2017 search, [Appellant] accessed two news articles
covering the January 9, 2017 homicide. [Appellant] also searched
for 9mm magazines use[d] to hold the same type of ammunition
used in each incident. [N.T., 1/31/19, at 297-331.]
Detective James Dunlap, an expert in cell tower analysis,
reviewed the phone records for [Appellant’s] (215) 416-5660
phone number and discovered that at 9:46 and 9:56 p.m. on
January 9, 2017, that phone was used to make two outgoing calls
from the cell tower nearest to 5406 West Girard Avenue. [N.T.
2/4/19 at 126-30.]
. . . Ballistics testing revealed that the recovered [fired cartridge
casings] from both 1309 North 52nd Street and 5406 West Girard
Avenue were all fired from the same weapon . . . . Police officers
recovered the murder weapon on September 11, 2017. . . . [N.T.,
1/31/19, at 67-70, 89-90, 101-20.]
Trial Ct. Op. at 6-8.
The jury returned a verdict on February 7, 2019. At Case 1856, the jury
found Appellant guilty of three counts of robbery5 and one count each of
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5 18 Pa.C.S. § 3701(a)(1)(iv).
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possessing instruments of crime (PIC), aggravated assault, burglary, and
firearms not to be carried without a license6 (VUFA 6106). At Case 1857, the
jury found Appellant guilty of second-degree murder, attempted murder, PIC,
aggravated assault, VUFA 6106, and two counts of robbery. Immediately
following the verdict, the trial court imposed an aggregate sentence of life
imprisonment without parole.
Appellant’s counsel filed a timely post-sentence motion, along with a
motion to withdraw as counsel. On February 13, 2019, the trial court denied
the post-sentence motion but permitted counsel to withdraw, and directed
that appeal counsel be appointed. The following day, before counsel was
appointed, Appellant filed a pro se notice of appeal at Case 1856. That appeal
is docketed in this Court at the present case, 595 EDA 2019. New counsel
was appointed on February 19th, and yet another substitute attorney was
subsequently appointed.
At this juncture we note Appellant also filed a notice of appeal at Case
1857.7 Trial Ct. Op. at 2 n.4. That appeal was docketed in this Court at 594
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6 18 Pa.C.S. §§ 907(a), 2702(a), 3502(a)(1), 6106(a)(1). “At trial, the
Commonwealth presented a Certificate of Non-Licensure showing that
[Appellant] was not licensed to carry a firearm.” Trial Ct. Op. at 9. Appellant
was also charged with the attempted murder, 18 Pa.C.S. § 901, of Brooks,
and was found not guilty.
7 While the record for Case 1857 is not presently before us, the trial court
states: “This Court’s Office of Judicial [R]ecords confirmed that [Appellant’s]
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EDA 2019, but was dismissed on June 19, 2019, for failure to file a brief.
Commonwealth v. White, 594 EDA 2019, Order, June 19, 2019. Appellant
did not seek relief from that dismissal. Thus, only the appeal from Case 1856
is presently before us. Although, as we discuss infra, the evidentiary rulings
and Appellant’s appellate issues pertain to both trial dockets, this panel only
has jurisdiction to grant relief, if any, at Case 1856.
Appellant raises the following four issues for our review:
I. Did the lower court err in granting the Commonwealth’s Motion
for Consolidation where evidence of the murder in question would
not have been admissible in a separate trial for the robbery of
Miayanna Brooks, Saleem Singleton, and Aly Damien and was not
capable of separation by the jury?
II. Did the lower court err in admitting alleged Facebook photos
of [Appellant] that had not been properly authenticated?
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pro se Notice of Appeal was filed separately for each docket.” Trial Ct. Op. at
2 n.4.
We further note that at the instant docket, for Case 1856, this Court
issued a per curiam order on January 29, 2020, directing Appellant to show
cause why this appeal should not be quashed pursuant to Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018). See id. 185 A.3d at 977 (appellant
must file separate notices of appeal “when a single order resolves issues
arising on more than one lower court docket,” and failure to do so will result
in quashal of appeal). Appellant filed a response, and this Court vacated the
show cause order, but advised the issue would be referred to the merits panel.
Order, 4/2/20.
Upon review, we observe Appellant’s February 14, 2019, pro se notice
of appeal lists the docket numbers for both Case 1856 and 1857. We conclude
this filing satisfies Walker, for purposes of the Case 1856/595 EDA 2019
appeal. See Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super.
2020) (en banc) (a notice of appeal, for one trial docket, does not violate
Walker if it also lists other trial dockets numbers).
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III. Did the lower court err in admitting phone records where the
Commonwealth failed to authenticate the records via a qualified
records custodian?
IV. Did the lower court err in failing to dismiss the charges against
[Appellant] in light of the Commonwealth’s failure to timely
disclose Brady material?
Appellant’s Brief at 3.
In his first issue, Appellant argues the trial court erred in granting the
Commonwealth’s motion to consolidate the two cases for trial. He first
recounts that the investigation in Case 1856 (the robbery of Damian-Lopez,
Brooks, and Singleton) “revealed video and Facebook photos that were . . .
used . . . to make identifications” in investigating Case 1857 (the homicide of
Jones and robbery of Royster). Appellant’s Brief at 17. Appellant concedes
that evidence of the first night’s “robbery would have been admissible at a
separate trial for the homicide case.” Id. Appellant avers, however, the
converse is not true: “The events and investigation of the homicide case . . .
in no way lead to the identifications regarding the robbery. As a result, the
events of the homicide case would not have been admissible in a separate trial
for the robbery.” Id. We conclude no relief is due.
We note the relevant standard of review:
“Whether or not separate indictments 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.” Pennsylvania
Rule of Criminal Procedure 582 provides that joinder of offenses
charged in separate indictments or informations is permitted when
“the evidence of each of the offenses would be admissible in a
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separate trial for the other and is capable of separation by the jury
so that there is no danger of confusion.” Pa.R.Crim.P.
582(A)(1)(a). While evidence of other criminal behavior is not
admissible to show a defendant’s propensity to commit crimes,
such evidence “may be admitted for other purposes, such as proof
of motive, opportunity, intent, preparation, plan, knowledge,
identity or absence of mistake or accident” so long as the
“probative value of the evidence outweighs its prejudicial effect.”
Pa.R.E. 404(b)(2),(3)[.]
Commonwealth v. Johnson, 179 A.3d 1105, 1115-16 (Pa. Super. 2018)
(some citations omitted).
Here, the trial court discussed its reasons for granting consolidation:
[T]he evidence presented in each case would be admissible to
demonstrate the history and natural development of the facts of
the other matter. Each incident occurred in the same geographic
area on consecutive days, and targeted tightly knit members of
the city’s small transgender community. [Appellant] used the
same weapon to perpetrate each offense. [Appellant’s] modus
operandi bears a striking similarity for each offense: [he] used a
mobile phone application to mimic the same (610) 589-0673
number that he used to contact both Damian-Lopez and Royster,
each of whom he had previously hired, in order to gain access to
their homes. The video surveillance evidence recovered pursuant
to the January 8, 2017 Robbery investigation was shown to
Royster, who identified the perpetrator of the Robbery as the
decedent’s murderer. Singleton’s discovery of [a] Facebook
profile containing [Appellant’s] name and photographs permitted
the police to assemble a photo array containing [Appellant’s]
photo, which Brooks, Singleton, Damian-Lopez, and Royster
[used] to identify [Appellant] as the perpetrator of each crime.
Upon recovering [Appellant’s] phone incident to arrest,
investigators obtained data showing [Appellant’s] interest in sex
acts involving transgender performers and his history of searching
for transgender sex workers via backpage.com.[8]
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8 The trial court also found consolidation of the cases would not risk confusing
the jury. Trial Ct. Op. at 11. Appellant does not challenge this finding on
appeal.
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Trial Ct. Op. at 10-11.
Appellant’s sole argument on appeal is that the police investigation of
the second night’s homicide “in no way lead[s] to the identifications regarding
the [first night’s] robbery.” Appellant’s Brief at 17. This limited discussion,
however, does not address, let alone dispute, the trial court’s analysis that
evidence relating to each incident would tend to show “motive, opportunity,
intent, preparation, plan, knowledge, [or] identity” relevant to the other
incident. See Johnson, 179 A.3d at 1116. Appellant has not established the
trial court’s ruling was an abuse of discretion, and we do not disturb its
consolidation order.
Appellant’s second claim is that the trial court erred in admitting the
Facebook photos of him, on the ground they were not properly authenticated.
Appellant’s Brief at 18. As stated above, Singleton received a “Suggested
Friends” notification on Facebook, which directed her to a Facebook profile
under Appellant’s name and containing multiple photos of Appellant. Trial Ct.
Op. at 7. Singleton used her phone to take multiple “screenshots” of this
Facebook profile page. Id. Appellant filed a motion in limine to preclude the
screenshots, and the trial court conducted a hearing on July 31, 2018.9 See
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9“Appellant preserved the issue by litigating the pre-trial motion in limine,
and was not required to object to the trial court’s ruling on the motion or place
an objection on the record at trial in order to preserve the issue for appeal.”
Commonwealth v. Stokes, 78 A.3d 644, 652 (Pa. Super. 2013), citing, inter
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N.T. Motion in Limine, 7/31/18, at 10-11. Appellant claimed the exhibits
should be excluded because they could not be linked to any account made by
him: “We don’t know if it’s a fake account someone [made] and used
[Appellant’s] picture[.]” N.T. Motion, 7/31/18, at 12. Appellant further
alleged it was not established that he was the person depicted in the Facebook
photos. The Commonwealth responded that it was irrelevant who made the
Facebook account, but instead, “what matters is that” Singleton recognized
Appellant in the photos. Id. at 13. The Commonwealth further averred that
the question — of whether Appellant was the person in the photos — was for
the jury to decide. Id. at 14. The trial court admitted the photos. Id. at 15.
On appeal, the sum of Appellant’s argument is that there was no
evidence he created the Facebook profile, nor that he “was in fact the person
depicted in the photos.” Appellant’s Brief at 18. Appellant relies on
Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018), which he
summarizes as reversing “the admission of social media posts via a computer
forensic expert [where] there was no evidence [the] defendant had created
the account or sent the communications and photos in question.” Appellant’s
Brief at 18. No relief is due.
We note:
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alia, Pa.R.E. 103(b) (“Once the court rules [on evidence] definitively on the
record — either before or at trial — a party need not renew an objection or
offer of proof to preserve a claim of error for appeal.”).
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When ruling on a trial court’s decision to grant or
deny a motion in limine, we apply an evidentiary abuse
of discretion standard of review. The admission of
evidence is committed to the sound discretion of the trial
court, and a trial court’s ruling regarding the admission
of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support to be
clearly erroneous.
Pursuant to Pennsylvania Rule of Evidence 901,
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. See 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. See Pa.R.E. 901(b)(1).
Evidence that cannot be authenticated by a knowledgeable
person, pursuant to subsection (b)(1), may be authenticated by
other parts of subsection (b), including circumstantial evidence
pursuant to subsection (b)(4). See Pa.R.E. 901(b)(4).
Mangel, 181 A.3d at 1158-59 (some citations and footnote omitted).
In the case sub judice, the trial court acknowledged the general
“difficulties in properly authenticating evidence obtained through social media
accounts.” Trial Ct. Op. at 11, citing Mangel, 181 A.3d 1154. The court
reasoned, however, “the author of the Facebook profile in question was
irrelevant:”
Singleton took the [screenshots] and thus had the requisite
knowledge to show that the photograph is a fair and accurate
representation of the images that appeared on [her] phone’s
screen at the time. This evidence was not used to prove
[Appellant] authored the Facebook profile or curated the photos
that appeared within it, rather the evidence was admitted to show
the jury the course of investigation which culminated in Brooks,
Singleton, Damian-Lopez, and Royster identifying [Appellant] as
the perpetrator of each crime via photo array. [Appellant] fails to
show that the Commonwealth failed to properly authenticate the
photos in question.
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Trial Ct. Op. at 11-12.
The Facebook profile-screenshots do not bear Appellant’s name, but
rather show a profile name of “Hamzah Allah’s Lion.” Commonwealth Exh.
11. Appellant does not argue that someone deceitfully created a social media
profile using his name. We agree with the trial court the identity of the person
who created the Facebook profile is not relevant; as the trial court simply
states, the Commonwealth did not seek “to prove [Appellant] authored the
Facebook profile or curated the photos that appeared within it.” See Trial Ct.
Op. at 12. Instead, the evidence was presented to show Singleton saw the
photos on her Facebook account, recognized the person in the photos as their
assailant, and took and provided screenshots to the police. Id.For these same reasons, we conclude Mangel, the case relied upon by
Appellant, is distinguishable. In that case, the Commonwealth sought to
introduce Facebook posts and messages allegedly made by the defendant.
Mangel, 181 A.3d at 1155-57. This Court held the evidence was properly
excluded, reasoning “the Commonwealth presented no evidence, direct or
circumstantial, tending to substantiate that [the defendant] created the
Facebook account in question, authored the chat messages, or posted the
photograph of bloody hands.” Id. at 1164. In this case, as stated above, the
Commonwealth did not argue Appellant created the Facebook profile or posted
the photos to that account. Accordingly, the Commonwealth was not required
to authenticate who created the Facebook account.
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Appellant’s third claim on appeal is that the trial court erred in admitting
evidence of his phone records on the ground that they were not authenticated
by a qualified records custodian. Appellant’s Brief at 19. He summarizes: (1)
Detective Kelhower testified about “the subscriber’s information pertaining to
the phone purportedly connected to” Appellant; (2) Agent Joseph Purfield
testified about “the contents of Sideline/Pinger records[,] as well as the call
detail records for [Damian-Lopez] and . . . Royster;” (3) and Detective Dunlap
testified about “the content of call detail records.” Id. at 20. Appellant
asserts, “The Commonwealth failed to qualify any of these witnesses as a
records custodian or to lay any of the requisite foundation . . . for the records’
admission under Pa.R.E. 803(6).” Id. We conclude these claims are waived.
“We have long held that ‘[f]ailure to raise a contemporaneous objection
to the evidence at trial waives that claim on appeal.’” Commonwealth v.
Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (citation omitted).
This [C]ourt cannot review a case upon a theory different from
that relied upon in the trial court, or raised for the first time on
appeal. A theory of error different from that presented to the trial
jurist is waived on appeal, even if both theories support the same
basic allegation of error which gives rise to the claim for relief. It
is a firm rule in this jurisdiction that if the ground upon which an
objection to the admission of evidence is specifically stated, all
other reasons for the exclusion of the evidence are waived and
may not be raised thereafter.
Commonwealth v. Mehalic, 555 A.2d 173, 183 (Pa. Super. 1989) (citations
omitted). “Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). Furthermore, where “an issue
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is not reviewable on appeal unless raised or preserved below,” the statement
of the case and argument sections of an appellant’s brief must specify the
place in the record where their issue was raised before the trial court. See
Pa.R.A.P. 2117(c)(1), 2119(e).
Appellant fails to identify the place in the record where he objected to
the admission of the phone records on the ground they were not authenticated
by a records custodian. See Pa.R.A.P. 2117(c)(1), 2119(e). With respect to
Detective Kelhower’s testimony, Appellant cites page 199 of the January 31,
2019, trial transcript. That portion of the transcript reveals Appellant raised
only a hearsay objection. See N.T., 1/31/19, at 199. With respect to Agent
Purfield’s testimony, Appellant raised no objection of any nature during their
direct examination. See id. at 298-332. During Detective Dunlap’s direct
examination, Appellant raised several objections, but none related to
authenticating the phone records. See N.T., 2/4/19, at 80-130. For the
foregoing reasons, we conclude the issue is waived for our review.
Furthermore, we agree with the Commonwealth that this issue is waived
for Appellant’s failure to include it in his court-ordered Pa.R.A.P. 1925(b)
statement. Appellant’s Rule 1925(b) statement framed a challenge to the
phone records-evidence as follows:
The trial court erred in allowing the Commonwealth to introduce
various documentation relating to phone records and evidence
obtained through these phone records, from a phone seized from
[Appellant]. Further, that certain information pertaining to that
which was derived from the cell phone was not provided in a
timely fashion to [Appellant] in violation of the appropriate
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discovery rule[. N.T., 1/31/19, at 213-16.] As a result thereof
[Appellant] should be awarded a new trial.
Appellant’s Statement of Matters Complained of Pursuant to Rule of Appellate
Procedure 1925(b), 4/8/19, at 1 (unpaginated). This statement makes no
reference to authenticating phone records or a records custodian. See
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement . . . are
waived.”).
Appellant’s final claim is that the trial court erred in not dismissing the
charges, pursuant to Brady, due to the Commonwealth’s failure to timely
disclose evidence of a photo array. Appellant’ Brief at 20. We set forth the
context:
On January 12, 2017, [during the investigation of the
robberies and homicide,] Damian-Lopez [told] Detective William
Kelhower . . . that she observed the perpetrator of the robbery at
a grocery store near the intersection of 52nd Street and Girard
Avenue. At that location, Detective Kelhower detained Michael
Attaway, an individual who fit the perpetrator’s description.
Detectives prepared a photo array containing Attaway’s photo,
which was shown to Brooks, Singleton, and Damian-Lopez.
Neither [sic] witness identified Attaway or any other individual in
the photo array. [N.T., 1/31/19, at 243-56.]
Trial Ct. Op. at 7.
Detective Joseph Murray testified at trial that he presented the January
12, 2017, photo array to Brooks, Singleton, and Damian-Lopez. Trial Ct. Op.
at 9. He informed homicide detectives of the result, but failed to provide them
with copies of the array. Id. Detective Murray “rediscovered the array in
April or May of 2018 and provided it to Detective” Jeffrey Gilson, who
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investigated this case. Id. “The assigned Assistant District Attorney for the
July 30, 2018[, hearing] discovered the array’s existence on August 1, 2018,
and immediately passed the discovery to trial counsel for review.” Id. At that
time, jury selection had already been conducted. Id. at 15.
The trial court summarized:
On August 3, 2018, this Court presided over a hearing and
concluded that this evidence constituted relevant Brady material.
This Court further expressed that the Commonwealth’s piecemeal
passing of discovery deeply concerned this Court. Despite this
Court’s exasperation over the Commonwealth’s handling of
discovery in this matter, it ultimately concluded that the proper
remedy was to continue the matter so that [Appellant] could
review the material in question and be afforded a fair trial. [N.T.
8/3/18 at 152-63.]
Trial Ct. Op. at 15-16 (footnote omitted).
On appeal, the sum of Appellant’s argument is:
[A]fter numerous prior continuances due to the late disclosure of
discovery, on August 3, 2018, this matter had to be continued in
the midst of jury selection due to the Commonwealth’s eleventh-
hour disclosure of evidence pertaining to the Michael Attaway
photo array. This resulted in [Appellant], who had already
been in custody for nearly two and a half years, having to wait
an additional five months for trial. The Courts of this
Commonwealth have previously found that such an outrageous
discovery violation concerning Brady necessitates dismissal of the
case. Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992)
(charges dismissed and retrial barred due to substantial Brady
violation). . . .
Appellant’s Brief at 21 (emphases added).
“Under Brady and [its progeny,] a prosecutor has an obligation to
disclose all exculpatory information material to the guilt or punishment of an
accused[.]” Commonwealth v. Chmiel, 30 A.3d 1111, 1129 (Pa. 2011).
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“[S]uch evidence is material ‘if there is a reasonable probability
that, had the evidence been disclosed to the defense, the result
of the proceeding would have been different.’” . . . In sum, there
are three necessary components to demonstrate a Brady
violation: “[t]he evidence at issue must be favorable to the
accused, either because it is exculpatory, or because it is
impeaching; that evidence must have been suppressed by the
State, either willfully or inadvertently; and prejudice must have
ensued.”
Commonwealth v. Causey, 833 A.2d 165, 170 (Pa. Super. 2003) (citations
omitted).
Here, the trial court discussed:
By granting a continuance, this Court elected to pursue the
most fundamentally sound solution to the present issue, and did
everything in its power to preserve [Appellant’s] right to a full,
fair, and speedy trial. Prior to trial, [Appellant] received all of the
Brady material in question, and with the benefit of that material,
was granted sufficient time for him and trial counsel to prepare an
effective defense. At trial, defense counsel thoroughly cross-
examined Detective Kelhower concerning his investigation of
Attaway as a potential suspect. [N.T., 1/31/19, at 219-82.] Trial
counsel further examined Brooks, Singleton, and Damian-Lopez
concerning their prior identification of the assailant as having a
tattoo under his left eye. [N.T., 1/29/19, at 62-70, 185-98, 261-
301.] Trial counsel further called Detective Joseph Murray as a
defense witness, who, under examination, admitted that he both
misplaced and failed to provide this discovery material to the
Commonwealth’s attorneys. [N.T., 2/4/19, at 182-96.]
The above facts clearly indicate [Appellant] had the
opportunity to fully present any evidence pursuant to the
discovery materials the Commonwealth failed to disclose in
anticipation of the August 1, 2018 trial date. As a result of this
evidence, the jury was able to fully consider the methods used to
identify [Appellant] as the perpetrator, and consider any
discrepancies that appeared in the witnesses’ description of the
perpetrator, including the presence or non-presence of facial
tattoos. Having considered all of this evidence, and knowing that
[Appellant] did not have the tattoos described over the course of
the investigation, the jury still elected to convict him in each
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matter. Accordingly, [Appellant] fails to demonstrate prejudice
and is not entitled to relief.
Trial Ct. Op. at 16-17.
Appellant’s sole issue is that the Commonwealth’s Brady violation
resulted in his having to wait, “after numerous prior continuances,” “an
additional five months for trial.” Appellant’s Brief at 21. The premise of this
argument is mistaken. Although the trial court continued trial on August 3,
2018, due to the disclosure of the Brady material, the court also pointed out
that an “October 22, 2018, trial date was rescheduled to January 28, 2019,
because of defense counsel’s unavailability.” Trial Ct. Op. at 1 n.1. This
continuance spanned approximately three months.
Furthermore, the trial court criticized the Commonwealth’s “lack of
preparedness” and “piecemeal passing of discovery,” and acknowledged there
were “five trial date continuances, borne primarily by the Commonwealth’s
inability to [timely] provide discovery.” Trial Ct. Op. at 1 n.1, 15-16.
However, the court also noted: (1) it appointed new defense counsel “after
[Appellant] attempted to assault previously appointed counsel;” (2) the
parties made an earlier joint continuance request, from March 18 to July 30,
2018, “for defense review of additional discovery concerning [Appellant’s] use
of a phone number spoofing application;” and, as stated above, (3) defense
counsel was unavailable, after the Brady continuance, resulting in a three-
month continuance. Id. at 1 n.1.
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Whereas Appellant requests dismissal of the charges, we note, as did
the trial court, that “dismissal . . . is an extreme sanction that should be
imposed sparingly and only in cases of blatant prosecutorial misconduct.” See
Trial Ct. Op. at 15, citing Commonwealth v. Wilson, 147 A.3d 7, 13 (Pa.
Super. 2016). Incorporating our foregoing discussion, the approximately two-
month continuance attributable to the Commonwealth’s late disclosure of the
Attaway photo array, in itself, did not constitute prejudice requiring dismissal
of the charges. Thus, we conclude no relief is due.
Finding no merit to any of Appellant’s issues, we affirm the judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/20
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