Com. v. Mitchell, B. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BOBBIE MITCHELL, JR. :
:
Appellant : No. 1242 EDA 2021
Appeal from the Judgment of Sentence Entered September 26, 2019
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004404-2018
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
MEMORANDUM BY SULLIVAN, J.: FILED DECEMBER 22, 2023
Bobbie Mitchell, Jr. (“Mitchell”) appeals nunc pro tunc from the
judgments of sentence imposed following his convictions of first-degree
murder, persons not to possess firearms, and possessing an instrument of
crime (firearm).1 After careful review, we affirm Mitchell’s convictions, vacate
the judgment of sentence for possessing an instrument of crime, and remand
for the limited purpose of allowing the trial court to correct its self-recognized
error at sentencing.
The trial court summarized the factual history of the case as follows:
On the [morning] of April 1, 2018, the Pottstown police
received notification of a possible shooting victim and information
that someone was seen leaving the scene on foot. In the early
morning hours of April 1, 2018 . . ., Siani Overby [“the victim”]
was found lying in a pool of blood . . ., clearly deceased.
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1 See 18 Pa.C.S.A. §§ 2502(a), 6105, 907(b).
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Witnesses saw an African American man fleeing the scene after
screaming alerted the witnesses that something was wrong.
Police at the scene of the crime recovered a cell phone that
was lying between the victim’s legs.[2] This cell phone was a black
Alcatel phone [“the Alcatel phone”], with the phone number
ending in 8227. It was assumed by police that the phone located
between the victim’s legs belonged to the victim. A download of
the phone revealed this assumption to be incorrect, and police
were able to determine that the phone belonged to [Mitchell].
[Mitchell] and the victim had previously been in an intimate
relationship and it was once believed that they shared a child.
Based upon the testimony of [Mitchell], a DNA test was performed
a year and a half before the victim’s death, and it was determined
that [Mitchell] was not the child’s father.
In the hours after the murder, [Mitchell] called his girlfriend
Deniqua Butler to let her know that he would be coming to her
home in Norristown and that they would be traveling to
Connecticut that morning to visit [Mitchell]’s father. [Mitchell]
arrived at the home of Ms. Butler in the very early morning hours
wearing a white t-shirt under a dark jacket with dark jeans.
[Mitchell], Ms. Butler and their children left for Connecticut around
4 a.m. in Ms. Butler’s Chevy Malibu.
The police initiated a search for [Mitchell] after it was
discovered that he was no longer in Pottstown and that his kids
were unexpectedly not in school. Out of concern for the safety of
[Mitchell]’s children and Ms. Butler, the police performed an
emergency ping on Ms. Butler’s phone. As a result of the ping,
the police discovered Ms. Butler and [Mitchell] in Waterbury,
Connecticut.
An arrest warrant was issued in Montgomery County, and
pursuant to that warrant, police in Waterbury, Connecticut
arrested [Mitchell]. Search warrants for both the apartment
where [Mitchell] was staying and . . . the Chevy Malibu [“the
Malibu”] were obtained and executed. Detective Todd Richard of
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2 The police found the victim’s body lying face-up in an alley. See N.T.,
9/23/19, at 34-38, 165.
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the Montgomery County Detective Bureau and Detective Heather
Long of the Pottstown Police Department performed an interview
of [Mitchell] upon his arrest.
Trial Court Opinion, 8/3/21, at 2-3 (record citations omitted).
Police charged Mitchell with murder, persons not to possess firearms,
and possessing an instrument of crime. Thereafter, Mitchell sought to
suppress several items of evidence pre-trial, including, in relevant part, the
Alcatel phone found between the victim’s legs at the murder scene, and the
fruits of that search, an audio recording of the homicide, and the evidence
seized from the Chevy Malibu Mitchell drove to Waterbury, Connecticut, hours
after the murder. See Mitchell’s Motion to Suppress and Motion to Exclude
Audio Evidence, 1/9/19; Mitchell’s Motion in Limine 1/9/19, Mitchell’s Motion
to Suppress, 3/29/19. The Commonwealth sought the admission of the cell
phone, the audio recording of the homicide, evidence recovered from the
Malibu, statements the victim made to her brother concerning Mitchell’s gun
and drug involvement, and Mitchell’s history of violence against the victim.
See Commonwealth’s motions in limine, 1/9/19.
On August 29, 2019, the court conducted a hearing on all of Mitchell’s
and the Commonwealth’s motions. After the hearing, the court denied
Mitchell’s motion to suppress the results of the search of the Alcatel phone,
the “fruits” of that search, and the audio recording of the homicide. In so
doing, the court credited the testimony of Montgomery County Detective Todd
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Richard (“Detective Richard”) that the detectives at the murder scene believed
the Alcatel phone found between the legs of the victim lying in an alley was
hers because it was found in close proximity to her body in a public area. The
trial court also credited Detective Richard’s testimony that when the police
discovered the phone did not belong to the victim, the search was suspended
and the police applied for and obtained a search warrant. See Order 9/6/19,
at 1-2. The court found the Alcatel phone was abandoned because it was left
lying on the victim’s body of the ground at the scene of the killing, and Mitchell
had no reasonable expectation of privacy in the phone. See id. at 2, 4.3
The Commonwealth argued the audio testimony, which contained
sounds of pleading, gunshots, and someone screaming after the gunshots,
was evidence of the shooter’s specific intent to kill. See N.T., 8/29/19, at 94-
97. The court denied Mitchell’s motion to suppress the audio testimony. See
id. at 97; Order sur [Mitchell’s] motion to exclude audio evidence, 9/6/19.
Mitchell asserted that the $117,000 found in the search of the Malibu
was the fruit of the poisonous tree of the illegal search of the victim’s cell
phone and probable cause did not exist for issuance of the search warrant.
See id. at 26, 91. The court found that the search warrant for the Malibu was
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3 The court also stated that a finding of abandonment of the cell phone was
supported because Mitchell had driven to Connecticut leaving the phone
behind and told another person not to contact the Alcatel phone. See Order
9/6/19, at 3-4.
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issued upon probable cause because a warrant had been issued for Mitchell’s
arrest, Mitchell was seen getting into the Malibu, and the Malibu was
registered to a known associate of his. See Order sur [Mitchell’s] motion to
suppress the evidence obtained through the April 2, 2019 warrant for the 2015
Chevy Malibu, 9/6/19, at 1-2.
The court found that the victim’s statement to her brother, Carlton
Overby (“Overby”), regarding Mitchell’s involvement with guns and drugs was
admissible evidence of Mitchell’s state of mind pursuant to Pa.R.E. 803(3); it
also found that the Commonwealth’s proffer of the victim’s mother’s testimony
established the existence of admissible evidence of Mitchell’s prior threats and
violence against the victim. See N.T., 9/23/19, at 100-03; Order sur the
Commonwealth’s motion in limine for the admission of victim’s statements
regarding [Mitchell] pursuant to state of mind hearsay exception, 9/6/19;
Order sur the Commonwealth’s motion in limine for the admission of evidence
of [Mitchell’s] prior bad acts under Pa.R.E. 404(b), 9/6/19.
In addition to the evidence discussed above, at trial the evidence also
included the victim’s brother Overby’s testimony that Mitchell threatened to
kill the victim if she revealed his drug-related activities, see N.T. 9/23/19, 48;
evidence a witness heard a woman scream, “Please don’t do it,” after the first
shot, see id. at 63-64; evidence a man dressed in dark clothes fled the scene
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of the killing, see id. at 41-43;4 Linwood Brown’s testimony that Mitchell, his
brother, called him crying on the morning of the killing and directed him to
tell their friend, John Sutton (“Sutton”), not to call him on the Alcatel phone,
see id. at 117, 127-31, 165, 167, 192; cell phone tower evidence the Alcatel
phone found at the murder scene had been at Mitchell’s girlfriend’s house with
Mitchell’s other cell phones less than one hour before the killing, and then
went to the area of the murder, see N.T., 9/25/19, at 62-64, 93-95; evidence
that moments after the murder, Mitchell called his girlfriend and his son from
the scene of the murder and told them to pack up for a trip, and they left for
Connecticut at 4:00 a.m., see N.T. 9/24/19, 112, 121, 151-53, 157-58, 166-
67, 181, 207; N.T., 9/25/19, at 81; evidence Mitchell activated a new cell
phone shortly after the murder and had nearly a one-hour phone call with his
brother, see id. at 192-96 and evidence all three cell phones Mitchell used to
communicate with his girlfriend and family immediately after the murder were
found with him in Connecticut, see id. at 214. Additionally, a series of angry
text exchanges between the victim and Mitchell was admitted, from a phone
later found in Mitchell’s possession, close in time to the actual shooting and
the 911 call, see id. at 8-16, 69-78.
After a four-day trial, the jury convicted Mitchell of all above-listed
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4 The man’s flight immediately after the shooting was also captured on home
video surveillance. See N.T., 9/24/19, 13.
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offenses. The trial court imposed a term of life imprisonment for murder, and
erroneously imposed two sentences for one count of possessing an instrument
of crime and failed to state a sentence for the charge of persons not to possess
firearms, See N.T., 9/26/19, at 100-01.5
Mitchell did not file post-sentence motions. He filed a timely notice of
appeal but counsel failed to file an appellate brief, resulting in the dismissal of
the appeal in March 2021. The trial court later granted Mitchell’s right to a
direct appeal nunc pro tunc in the interests of justice. See Order 8/3/21, at
2. Both Mitchell and the trial court complied with Pa.R.A.P. 1925.
On appeal, Mitchell raises the following issues for our review:
[1.] Did the trial court err in denying [Mitchell]’s motion to
suppress . . . a[] cell phone and the data stored therein . . .
because the Commonwealth failed to provide probable
cause to search the phone without a warrant[?]
[2.] Did the trial court err in its determination that the . . . cell
phone was abandoned by [Mitchell] at the scene of the
crime, and thus concluding that [Mitchell] had no
expectation of privacy in the data stored in the device[?]
[3.] Did the trial court err in . . . admitting into evidence data
and information obtained from the . . . cell phone, which
was obtained pursuant to a search warrant, secured after
the phone had been initially searched, as any such evidence
was “fruit of the poisonous tree[?]”
[4.] Did the trial court err in granting the Commonwealth’s
motion in limine allowing the admission into evidence of the
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5 The court concedes it erred in doing so.
See Trial Court Opinion, 8/3/21, at
7. The sentencing order does not appear in the certified record.
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alleged victim’s statements regarding [Mitchell], pursuant
to Pa.R.E. 803(3)[?]
[5.] Did the trial court err in denying [Mitchell]’s pre-trial motion
to exclude audio evidence of the homicide[?]
[6.] Did the trial court err in granting the Commonwealth’s
motion in limine to admit prior bad acts evidence in the form
of alleged threats and abuse inflicted upon or towards the
alleged victim by [Mitchell][?]
[7.] Did the trial court err in sentencing [Mitchell] to . . . five [to]
. . . ten . . .years on Count 4, charging Mitchell with a
misdemeanor of the first degree . . . [?]
[8.] Did the trial court err in denying [Mitchell’s] motion to
suppress evidence seized from the 2015 Chevrolet Malibu
because there was insufficient probable cause articulated in
the search warrant to substantiate the issuance of the
warrant and the authorization to search[?6]
Mitchell’s Brief at vii-viii (issues reordered; full capitalization omitted).7
Mitchell’s first three issues concerning his motion to suppress
information from the Alcatel phone and the fruits of that alleged illegal search.
As these issues present similar questions of law and arise from related facts,
we analyze them together.
Our standard of review regarding a challenge to a trial court’s
suppression ruling is limited to determining whether the court’s findings of
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6 Mitchell states in his brief that he is not proceeding upon his eighth issue
and is withdrawing it from consideration on appeal. See Mitchell’s Brief at viii,
25. Accordingly, we do not address it.
7 For reasons of judicial efficiency and clarity, we have reordered Mitchell’s
arguments.
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fact are supported by the record and the legal conclusions drawn from those
facts are correct. See Commonwealth v. Thomas, 273 A.3d 1190, 1195
(Pa. Super. 2022). Where the Commonwealth has prevailed below, this Court
may only consider the evidence of the prosecution and so much of the defense
evidence as remains uncontradicted when read in the context of the record.
See id. It is the suppression court’s sole province as fact-finder to pass on
the credibility of witnesses and the weight to give their testimony. See id.When the record supports the suppression court’s factual findings, we are
bound by those facts and may reverse only if the court erred in reaching its
legal conclusions from those facts. See Commonwealth v. Williams, 941
A.2d 14, 27 (Pa. Super. 2008) (en banc).
Our scope of review is limited to the evidentiary record at the
suppression hearing. See Commonwealth v. Smith, 302 A.3d 123, 126 (Pa.
Super. 2023). When an appellant asserts legal error in a suppression court’s
ruling, it is the Court’s duty to determine if the suppression court properly
applied the law to the facts. See id. at 7. See Commonwealth v. James
Byrd, 235 A.3d 311, 319 (Pa. 2020) (stating that a suppression court’s
conclusions and legal rulings are subject to de novo review).
The Fourth Amendment protects the right of the people against
unreasonable searches and seizures. See U.S. Constit., amend. IV. The
ultimate touchstone of the Fourth Amendment is reasonableness. See Riley
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v. California, 573 U.S. 373, 382 (2014) (“Riley/Wurie”). Reasonableness
generally requires law enforcement officials to obtain search warrants in
seeking to discover evidence of wrongdoing. See id. “In the absence of a
warrant, a search is reasonable only if it falls within a specific exception to the
warrant requirement.” Id. (citation omitted).
One of the exceptions to the warrant requirement is abandonment;
abandonment can occur quickly and deprives a party of the right to contest
the search and seizure of abandoned items. See Commonwealth v. Ronald
Byrd, 987 A.2d 786, 790-93 (Pa. Super. 2009); Commonwealth v. Clark,
746 A.2d 1128, 1134 (Pa. Super. 2000). A defendant cannot establish a
legitimate expectation of privacy when he has “meaningfully abdicated his
control, ownership or possessory interest. . . . [A]bandonment of a privacy
interest is primarily a question of intent and may be inferred from words
spoken, acts done, and other objective facts.” Commonwealth v. Dowds,
761 A.2d 1125, 1131 (Pa. 2000) (internal citations and footnote omitted).
The test for abandonment focuses upon “whether the person prejudiced by
the search had voluntarily discarded, left behind, or otherwise relinquished his
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interest in the property in question so that he could no longer retain a
reasonable expectation of privacy.” Id. at 1131 n.7.8
There can be nothing unlawful in the government’s appropriation of
abandoned property. See Abel v. U.S., 362 U.S. 217, 241 (1960);
Commonwealth v. Hall, --- A.3d ---, ---, 2023 WL 7266701 at *5 (Pa.
Super., filed November 3, 2023), citing Ronald Byrd, 987 A.2d at 790-93(stating that a suspect does not retain a reasonable expectation of privacy in
items he has voluntarily abandoned); Commonwealth v. Ibrahim, 127 A.3d
819, 825 (Pa. Super. 2015) (holding when a person abandons property
voluntarily the police may recover it and use it as evidence against him).
Mitchell initially asserts that the court erred in finding he abandoned the
Alcatel phone he argues he unintentionally dropped. He claims the court erred
in denying suppression of the phone and its data because he did not abandon
it and the police lacked probable cause to search it without a warrant. Because
he retained a reasonable expectation of privacy in the Alcatel phone, Mitchell
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8 See also Commonwealth v. Shoatz, 366 A.2d 1216, 1220 (Pa. 1976)
(emphasis added) (explaining the definition of abandonment for Fourth
Amendment purposes differs from the strict property-right sense; the
abandonment analysis turns not on a property interest in the item but an
appellant’s possession of a reasonable expectation of privacy in the property
in question at the time of the search).
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asserts, the court should have suppressed the data and information from the
phone as the fruit of the poisonous tree.9
At the suppression hearing, Detective Richard testified he learned the
Alcatel phone had been found between the victim’s legs and went to the scene
with Detective Edward Schikel (“Detective Schikel”) to recover and download
the contents of the phone, believed to be the victim’s. See N.T., 8/26/19, at
64-65, 70. When the detectives left the scene with the phone, the police had
not yet determined the victim’s identity. See id. at 69, 72. The detectives
took the phone to the Pottstown Police Department where an officer
downloaded its contents. Detective Richard looked at the last few contacts
obtained from the cell phone download, which included a person identified as
“J.J.”10 Detective Richard testified when he realized the Alcatel phone was
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9 The fruit of the poisonous tree doctrine generally requires the exclusion of
evidence obtained from, or acquired as the consequence of, an illegal search.
See Utah v. Strieff, 579 U.S. 232, 237 (2016); Commonwealth v. Gatlos,
76 A.3d 44, 63 (Pa. Super. 2013). Evidence uncovered as the result of a legal
search is not the fruit of the poisonous tree and will not be suppressed.
Gatlos, 76 A.3d at 63.
10 Detective Richard reached out to “J.J.,” whose name was John Sutton
(“Sutton”), who said he received a text before 5:00 a.m. on the morning of
the killing from Mitchell’s brother, Brown, telling him not to call the Alcatel
phone. See N.T., 8/26/19, at 65-66, 72, 78-79, 113 (discussing the contents
of Commonwealth’s Exhibit 11).
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likely connected to a suspect, he stopped looking at it and obtained a search
warrant to examine its contents. See id. at 66-68.
The court found that the Commonwealth presented evidence at the
suppression hearing the Alcatel phone had been abandoned and Mitchell failed
to demonstrate a legitimate expectation of privacy in the phone that the police
conduct violated. See Trial Court Opinion, 8/3/21, at 8-10. We agree.
Detective Richard’s testimony, which the court credited, showed the
police found the phone in a public alley on a city street between the victim’s
legs. The court also credited Detective Richard’s testimony that the officers
on scene believed the phone belonged to the victim, and that at the time the
phone was recovered the victim’s identity had yet to be determined. Mitchell
offered no testimony at the suppression hearing to show he attempted to
assert possession of the Alcatel phone when the first police officers arrived at
the murder scene, when the detectives arrived, or when the detectives took
the phone from the scene and downloaded its contents. In fact, as the court
found, Mitchell’s actions supported the Commonwealth’s evidence of
abandonment, including his: 1) call to his brother instructing him to tell Sutton
not to call that phone, 2) shutting down that phone, and 3) setting up a new
phone within hours of the murder. See Order sur [Mitchell’s] motion to
suppress warrantless search of the Alcatel phone and the search warrant
obtained for the Alcatel phone, 9/6/19, at 3-4. Under these facts, we conclude
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the trial court properly found the Alcatel phone abandoned. See Abel, 362
U.S. at 241; Hall, --- A.3d ---, 2023 WL 7266701 at *5 (affirming a
suppression court’s finding that a suspect voluntarily abandoned a cell phone
he left in his car when he fled the scene of a collision); Ronald Byrd, 987
A.2d at 791-93 (finding a suspect abandoned a gun he threw under an SUV
parked on a public street when he saw a police officer, whose mere presence
did not force the abandonment); Clark, 746 A.2d at 1143 (finding the decision
to hide drugs in a public area demonstrates abandonment of any reasonable
expectation of privacy in them).
As support, Mitchell asserts Commonwealth v. Santiago, 209 A.3d
912 (Pa. 2019), and Commonwealth v. Fulton, 179 A.3d 475 (Pa. 2018),
recognize that cell phones are the repositories of strong expectations of
privacy and compel a finding the Alcatel phone was not abandoned and he had
a reasonable expectation of privacy in it. See Mitchell’s Brief at 15-17. While
we do not disagree that Santiago and Fulton stand for the principal that
there are privacy expectations in cell phones, these cases are distinguishable
from this matter. Critically, neither of those cases involves an abandoned
phone. Santiago involved an improper search incident to arrest by a police
officer during an interaction that resulted in Santiago’s phone falling out of his
car. The Commonwealth conceded on appeal that Santiago had not
abandoned his phone and the search of a phone incident to arrest without a
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warrant was illegal. See Santiago, 210 A.3d at 188 n.2. Similarly in Fulton,
the police seized Fulton’s cell phone incident to arrest and searched it without
a warrant or an applicable exception to the search warrant requirement. See
Fulton, 179 A.3d at 316.
As this Court has explained, both Riley/Wurie and Fulton address
warrantless searches of cell phones seized incident to arrest. See
Commonwealth v. Kane, 210 A.3d 324, 332 (Pa. Super. 2019). In Kane,
this Court expressly rejected the argument that Fulton applies to warrantless
searches of abandoned cell phones:
[W]e decline to conclude that Fulton stands for the overbroad and
sweeping proposition that police must get a warrant to search a
cell phone, even if it has been abandoned, when the facts of the
case and our case law pertaining to abandoned property do not
support that proposition.
Kane, id. (emphasis in original). The Kane court also noted that the holdings
in Riley/Wurie and Fulton “do not relieve a defendant of the burden of
demonstrating a reasonable expectation of privacy on a cell phone that is
searched.” See id. (citation omitted). Because Mitchell abandoned the Alcatel
phone, Santiago and Fulton do not apply. It necessarily follows that the
search of the phone was legal and there is, thus, no suppressible fruit of the
poisonous tree, see Gatlos, 76 A.3d at 73, and no right for Mitchell, who
abandoned the phone, to contest its search and seizure. See Hall, ---
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A.3d ---, ---, 2023 WL 7266701 at *7. Mitchell’s suppression claims regarding
the abandoned phone accordingly do not merit relief.11
Mitchell’s next issue asserts that the trial court erred in admitting the
victim’s statements to her brother, Overby, pursuant to Pa.R.E. 803(3).
Overby testified that Mitchell sold guns and drugs, see N.T., 9/23/19, at 48,
to establish Mitchell’s motive to kill her.
The admission of evidence is within a trial court’s sound discretion and
will only be reversed where that discretion is clearly abused. See
Commonwealth v. Wilson, 273 A.3d 13, 19 (Pa. Super. 2022). An abuse
of discretion is demonstrated only where the judgment is “manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill-will.” Id. (internal
citation omitted). It is not enough to persuade an appellate court that it would
have reached a different result; an appellant must show that the trial court
abused its discretionary power. See Commonwealth v. Norton, 201 A.3d
____________________________________________11 Further, in Riley/Wurie, the Supreme Court expressly stated even in
instances where cell phones are searched pursuant to arrest, exigent
circumstances may exist that permit a warrantless search of a cell phone,
including “to pursue a fleeing suspect.” Riley/Wurie, 573 U.S. 373, 402
(2014). See also Fulton, 179 A.3d at 316 n.18 (acknowledging that
Riley/Wurie left open the possibility of exigent circumstances). Here,
independent of Mitchell’s abandonment of the phone, compelling exigent
circumstances may have existed to use the phone to find a fleeing, armed
killer.
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112, 120 (Pa. 2019).
A statement is hearsay if made out of court and offered in court for the
truth of the matter asserted in the statement. See Commonwealth v.
Fitzpatrick, 255 A.3d 452, 458 (Pa. 2021). Hearsay is inadmissible unless it
satisfies a hearsay exception prescribed by statute or rule. See Pa.R.E. 802.
Evidence of a declarant’s then-existing state of mind, not including a
statement of memory or belief, is admissible to prove a fact the declarant
remembered or believed pursuant to the “state of mind” exception to the
hearsay rule. See Pa.R.E. 803(3). The state of mind hearsay exception,
however, does not permit the admission of a declarant’s statement to prove
the intent or motive of another person. See Fitzpatrick, 255 A.3d at 472,
482 (holding that a victim’s written assertion that the accused would be
responsible if she met an untimely death was an inadmissible factual averment
offered to prove the accused’s intent).
Mitchell asserts the trial court erred in granting the Commonwealth’s
motion in limine admitting the victim’s statement to Overby as evidence of
Mitchell’s state of mind and his motive, and that he suffered prejudice from
that evidence. The trial court asserts it properly admitted the victim’s
statement as evidence establishing Mitchell’s motive to kill the victim. See
Trial Court Opinion, 8/3/21, at 7-8.
Mitchell is correct, Overby’s statement that the victim said Mitchell sold
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drugs and guns was not admissible as evidence of his (Mitchell’s) “state of
mind” pursuant to Pa.R.E. 803(3). See Fitzpatrick, 255 A.3d at 482. Thus,
the trial court erred.
Although we note that Mitchell’s analysis is correct, and the trial court
erred, that conclusion is not the end of the analysis. The Court must also
consider whether the statement’s admission was “harmless”. An error is
harmless only where:
(1) the error did not prejudice defendant or the prejudice was de
minimis; or (2) the erroneously admitted evidence was merely
cumulative of other, untainted evidence which was substantially
similar to the erroneously admitted evidence; or (3) the properly
admitted and uncontradicted evidence of guilt was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Williams, 274 A.3d 722, 735 (Pa. Super. 2022) (citation
omitted and italics added).
At trial, there was one reference in Overby’s testimony to Mitchell’s sale
of guns and drugs. See N.T., 9/23/19, at 48. Following this one sentence,
Overby testified he overheard an argument outside of his house where Mitchell
told the victim, “If you mess up my operation, I will kill you.” See N.T.
9/23/19, at 50. Overby also testified Mitchell said he “would kill [the victim]
if anything happened as far as his operation.” See id. Mitchell himself also
testified at trial that he sold high-grade marijuana. See N.T., 9/25/19, 39.
The improperly-admitted evidence was thus merely cumulative of other,
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untainted evidence of Mitchell’s threats to kill the victim if she disclosed those
activities. See Williams, 274 A.3d at 735.
Alternatively, the prejudicial effect of the error was de minimis and the
properly admitted and uncontradicted evidence of guilt was overwhelming and
the prejudicial effect of the error was so insignificant by comparison that the
error could not have contributed to the verdict. In addition to Overby’s
properly-admitted testimony showing Mitchell threatened to kill the victim if
she exposed his operation, there was also untainted and overwhelming
evidence regarding Mitchell’s guilt. The phone records from the non-Alcatel
phones established that Mitchell exchanged a series of angry, menacing, and
profane texts with the victim, on one of the three cell phones later found in
his possession, over the course of one and one-half hours, and that ended six
minutes before the victim’s death at 1:58 a.m. See N.T. 9/25/19, at 10-16,
48-50, 59-60.
Cell tower address evidence placed the Alcatel phone and Mitchell’s other
phones at his girlfriend’s house, then traveling to the area of the murder at
the time it occurred. See id. at 78-79. The trial evidence also showed all
three phones in Mitchell’s possession went from the area of the murder to
Mitchell’s girlfriend’s house shortly after the murder, and Mitchell and his
girlfriend left home with their children at approximately 4:00 a.m. and drove
to Waterbury, Connecticut. See id. at 81-90. Mitchell’s brother also testified
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that Mitchell called him shortly after the murder and directed him to tell Sutton
he should not call or use the Alcatel phone anymore, and Mitchell’s brother
texted that warning to Sutton. See N.T., 9/23/19, at 117, 127-31, 165, 167,
192. In light of this evidence, the improper admission of a single statement
from Overby that the victim said Mitchell sold guns and drugs had a de minimis
effect. See Williams, 274 A.3d at 735. Any harm from the introduction of
Overby’s single statement did not harm Mitchell where the evidence
compellingly proved his guilt beyond a reasonable doubt.
Mitchell’s next issue asserts the court abused its discretion in denying
his pre-trial motion to exclude audio evidence of the shooting.
Before we reach the merits of Mitchell’s claim, we must first address
whether we have jurisdiction to address it. Mitchell has not identified the place
in the record where the recording was played, as the Rules of Appellate
Procedure require. See Pa.R.A.P. 2119(d). Nor has Mitchell indicated where in
the certified record the recording appears. We will not serve as Mitchell’s
advocate and scour the record for evidence to support his argument. See
Commonwealth v. Leap, 222 A.3d 386, 391 n.5 (Pa. Super. 2019).12 Thus,
his claim is waived.
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12 Another deficiency of Mitchell’s claim is his failure to identify where in the
trial record the recording was played, which prevents this Court from
(Footnote Continued Next Page)
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Even if reviewable, the claim would lack merit. As our Supreme Court
has recognized on the related issue of the admissibility of photographs of a
murder victim:
[t]o permit the disturbing nature of the images of the victim to
rule the question of admissibility would result in exclusion of all
photographs of the homicide victim, and would defeat one of the
essential functions of a criminal trial, inquiry into the intent of the
actor. There is no need to so overextend an attempt to sanitize
the evidence of the condition of the body as to deprive the
Commonwealth of opportunities of proof in support of the onerous
burden of proof beyond a reasonable doubt.
Commonwealth v. McCutchen, 454 A.2d 547, 549 (1982). Mitchell’s
assertion that the screaming and gunshots heard on the tape fails to overcome
this standard.13
Mitchell’s next issue asserts the trial court abused its discretion with its
pre-trial ruling that it would admit evidence Mitchell had threatened and
physically abused the victim. Once again, we cannot exercise jurisdiction over
this claim because Mitchell’s brief does not discuss what evidence was at issue
____________________________________________
determining if he requested a cautionary instruction concerning the audio
evidence and whether the trial court granted any such request.
13 Moreover, Mitchell’s argument that the audio evidence was inadmissible
because the facts could have been proved by the testimony of witnesses is
unpersuasive. That witnesses can describe the condition of a body that
photographs also depict does not render those photographs cumulative or
inadmissible. See Commonwealth v. Johnson, 42 A.3d 1017, 1033 (Pa.
2012). Even allegedly inflammatory evidence is not precluded from admission
by the availability of alternative testimony. See Commonwealth v. Sanchez,
36 A.3d 24, 49 (Pa. 2011).
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(or what evidence was admitted at trial); instead, he offers only a citation to the
record of the suppression hearing. We will not scour the record nor develop
Mitchell’s claim for him; thus, Mitchell waived this claim. See Pa.R.A.P.
2119(d); Leap, 222 A.3d at 391 n.5.14
Mitchell’s final issue asserts that the trial court imposed an illegal
sentence for possessing an instrument of crime. Our scope and standard of
review for assessing the legality of a sentence is as follows:
If no statutory authority exists for a particular sentence, that
sentence is illegal and subject to correction. An illegal sentence
must be vacated. In evaluating a trial court’s application of a
statute, our standard of review is plenary and limited to
determining whether the trial court committed an error of law.
Commonwealth v. Dixon, 161 A.3d 949, 951 (Pa. Super. 2017) (citation
omitted).
The trial court itself declared its intention to impose a one-to-two year
term of imprisonment for possessing an instrument of crime and a five-to-ten
year term of imprisonment for persons not to possess firearms, and
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14 Even were the Court to review Mitchell’s undeveloped claim, Mitchell failed
to show the trial court abused its discretion by admitting the evidence.
Although generally inadmissible, evidence of other crimes or bad acts is
admissible, among other purposes, to show the relationship between the
parties to prove ill-will, motive, and malice. See, e.g., Commonwealth v.
Johnson, 289 A.3d 959, 1009 (Pa. 2023). Evidence of Mitchell’s prior threats
and violence against the victim was admissible pursuant to the well-
established case law admitting evidence of prior bad acts by the accused
against his victim.
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mistakenly imposed two sentences for Count 3, possessing an instrument of
crime. See Trial Court Opinion, 8/3/21, at 6-7.15
Examination of the record confirms the trial court mistakenly
pronounced two sentences for Count 3. See N.T., 9/26/19, 100-01. We thus
remand for correction of Mitchell’s sentences in accordance with its stated
intention.
In sum, we affirm Mitchell’s convictions, vacate the judgments of sentence
in part, and remand for the court to correct its self-recognized error at
sentencing.
Convictions affirmed; judgment of sentence for first-degree murder
affirmed; judgment of sentence for possession of instrument of crime vacated.
Case remanded for limited resentencing consistent with this decision.
Jurisdiction relinquished.
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15 The maximum term of imprisonment for possessing an instrument of crime,
a misdemeanor of the first degree, is five years of imprisonment, when the
weapon is a concealed firearm or other weapon. See 18 Pa.C.S.A. §§ 907(b),
1104(1). The maximum term of imprisonment for person not to possess
firearms, a felony of the second degree, is ten years of imprisonment. See
18 Pa.C.S.A. §§ 6015(a.1)(1), 1103(2).
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Date: 12/22/2023
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