In the Int. of: D.S., Appeal of: D.S. ( 2024 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INTEREST OF: D.S., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: D.S., MINOR :
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: No. 2032 EDA 2023
Appeal from the Dispositional Order Entered July 10, 2023
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-JV-0001161-2023
BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 14, 2024
Appellant D.S. appeals from the dispositional order entered following his
adjudication of delinquency for possession of a firearm as a minor and
possession of a firearm prohibited.1 Appellant challenges the admission of
Instagram Live video evidence and a law enforcement agent’s lay opinion
testimony regarding that video evidence. We affirm.
We adopt the juvenile court’s summary of the relevant facts and
procedural history. See Juvenile Ct. Op., 10/30/23, at 2-5. Briefly, Appellant
admitted to possession of a firearm as a minor and was adjudicated delinquent
on April 21, 2023. See Commonwealth Exhibit C-4. Prior to adjudication,
Appellant resided with his father in Upper Darby, Pennsylvania, and
subsequent to this adjudication Appellant was placed on probation under GPS
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1 18 Pa.C.S. §§ 6110.1(a) and 6105(a)(1), respectively.
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monitoring and released to the custody of his mother, who resided in
Philadelphia, Pennsylvania. See N.T., 7/10/23, at 56-57. The juvenile court
summarized the testimony of Agents Andrea Guse and Kyle Boyd of the
Pennsylvania Office of Attorney General Gun Violence Task Force as follows:
on June 12, 2023, [Agent Guse] received information about an
Instagram Live [video] regarding an investigation with
[Appellant]. N.T. 7/10/23, 7, 13. She explain[ed] that Instagram
Live is when the user goes live to broadcast everything happening
at that moment, and anyone with an email, phone number, and
phone can access Instagram. Id. at 12. She is familiar with
[Instagram Live] because she has personal and professional
experience and knowledge of using Instagram. Id. After she
received the Instagram Live video and other information from an
Upper Darby police officer and [also] a Juvenile Probation officer,
she followed up with both sources regarding the video. Id. at 16.
After watching the video and following up, she [applied for] a
search warrant for [Appellant’s residence], [which was] approved
by a judge. Id. at 16-17. Then, on June 15, 2023, Agent Guse
and the gun violence team went to [Appellant’s residence] to
execute the search warrant. Id. at 19. At the house, she saw
[Appellant] coming from the second floor to be present with other
family members. Id. at 30. At the trial, the Commonwealth
presented a stipulation by and between counsels that on June 7,
2023, [Appellant] was on GPS at [Appellant’s residence] at the
same property [Appellant] was seen by Agent Guse on June 15,
2023. Id. at 21, 30.
Furthermore, Agent Guse recognized an Instagram Live video
presented by the Commonwealth [at trial] to be the same video
she received regarding an investigation with [Appellant]. Id. at
23. She was able to say that [Appellant was] in the top right in
the video holding a black color firearm with an extended magazine
seated and a laser sight attached on his right hand. Id. at [25].
Based on her training and experience, Agent Guse recognized the
firearm in [Appellant]’s right hand as a Taurus semi-automatic
handgun. Id. at 26-27. During cross-examination, she stated
that the police recovered the firearm from a bookbag inside a []
closet [of a bedroom used by females] and that the bookbag
belonged to another male resident of the house. Id. at 29-30.
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. . . Agent Kyle Boyd testified that he executed a search warrant
on June 15, 2023, at [Appellant’s residence] in . . . Philadelphia.
He recovered a black Taurus G3, nine-millimeter with an extended
magazine and a laser sight attachment . . . from a bookbag. Agent
Boyd then placed the recovered firearm in the property receipt
3609681 and confirmed that the photographs presented at trial .
. . [were] fair and accurate descriptions of the firearm he
recovered. Id. at [33-]34. During the trial, both defense counsel
and the Commonwealth stipulated that Officer Andrewjczak
reviewed the firearm placed on property receipt 3609681, and it
was a black Taurus firearm. Id. at [36].
Juvenile Ct. Op. at 3-5 (some formatting altered).
On the same date as the search of Appellant’s residence, the
Commonwealth filed a delinquency petition alleging that Appellant committed
the delinquent act of possession of a firearm by a minor. See Delinquency
Petition, 6/15/23. The following day, the Commonwealth amended this
petition to add the count of possession of a firearm prohibited, based on
Appellant’s prior adjudication for possessing a firearm as a minor. See
Juvenile Ct. Order, 6/16/23. After a hearing, the juvenile court adjudicated
Appellant delinquent on both counts and entered a dispositional order on July
10, 2023.
Appellant filed a timely notice of appeal, and both Appellant and the
juvenile court complied with Pa.R.A.P. 1925. Appellant raises the following
issues on appeal:
1. Did not the [juvenile] court err and abuse its discretion by
allowing into evidence a video purporting to be an Instagram
[L]ive video that was not properly authenticated and the
authorship of the video was never established?
2. Did not the [juvenile] court err and abuse its discretion in
permitting an agent of the office of the Pennsylvania Attorney
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General to testify as a lay witness regarding how Instagram
[L]ive works in violation of Pa.R.E. 701 and 702?
Appellant’s Brief at 3 (some formatting altered). 2
In its Rule 1925(a) opinion, the juvenile court aptly addressed
Appellant’s issues and correctly concluded that Appellant was not entitled to
relief. Following our review of the record, the parties’ briefs, and the relevant
law, we affirm on the basis of the juvenile court’s opinion addressing the lay
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2 In his Rule 1925(b) statement, Appellant also challenged the sufficiency of
the evidence. See Appellant’s Rule 1925(b) Statement, 9/15/23, at 2.
Appellant has abandoned these sufficiency claims on appeal as he has
proffered no argument related to them, and these issues are therefore waived.
See Pa.R.A.P. 2116(a), 2119(a); see also Commonwealth v. McGill, 832
A.2d 1014, 1018 n.6 (Pa. 2003) (finding waiver where the appellant
abandoned claim on appeal).
Additionally, Appellant now objects that the Instagram Live video evidence
may be “manipulated” or “falsified,” or be a “deepfake[.]” Appellant’s Brief at
17-19. Appellant did not, however, raise these objections to the video before
the juvenile court at the adjudicatory hearing. Pursuant to Pa.R.A.P. 302(a),
issues not raised at trial are waived and cannot be raised for the first time on
appeal, to “ensure that the trial court that initially hears a dispute has had an
opportunity to consider the issue, which in turn advances the orderly and
efficient use of our judicial resources, and provides fairness to the parties.”
See Commonwealth v. Eisenberg, 98 A.3d 1268, 1274 (Pa. 2012) (some
formatting altered and citation omitted); see also In re R.N., 951 A.2d 363,
371 (Pa. 2008) (“in juvenile proceedings, appellants must preserve issues on
appeal by raising them in the [juvenile] court; otherwise, they are waived”
and “while juvenile proceedings are not quite civil and not quite criminal, the
purposes of the waiver doctrine argue for its application in such proceedings”
(some formatting altered and citations omitted)).
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witness testimony and admissibility of the Instagram Live video evidence.
See Juvenile Ct. Op., 10/30/23, at 5-8.3 Accordingly, we affirm.4
Order affirmed. Jurisdiction relinquished.
Date: 11/14/2024
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3 We note that the juvenile court’s opinion contains two relevant typographical
errors. The first sentence under the Lay Witness Testimony section on page
5 of the juvenile court’s opinion should read: “The [juvenile] court has the
discretion to allow [a lay] witness to testify in the form of an opinion if the
opinion is rationally based on the witness’s perception, which is helpful to the
trier of fact to determine the issue.” See Juvenile Ct. Op., 10/30/23, at 5
(citation omitted). Additionally, the first sentence of the next paragraph on
page 5 should read: “Here, [Appellant] claims Agent Guse’s testimony on how
Instagram Live works [fails to comply] with Pa. R.E. 701 and 702 because it
is specialized knowledge.” See id.4 The parties are directed to attach a copy of the juvenile court’s opinion in
the event of further proceedings.
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