Com. v. Thomas, C.

J-S24006-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CURTIS THOMAS :
:
Appellant : No. 1537 EDA 2019
Appeal from the Judgment of Sentence Entered January 22, 2019
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0005587-2017
BEFORE: BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 27, 2020
Appellant, Curtis Thomas, appeals from the judgment of sentence of life
imprisonment without the possibility of parole, and a consecutive term of 10-
20 years’ incarceration, imposed after he was found guilty of first-degree
murder, fleeing or attempting to elude an officer, and two counts of persons
not to possess a firearm. After careful review, we affirm.
The trial court provided the following summary of the facts underlying
Appellant’s conviction. Just before noon on November 1, 2017,
David Roth was in his living room watching television when he
heard screeching tires outside at the intersection of Wyoming and
South 9th Streets in Allentown, Lehigh County, Pennsylvania. Roth
immediately looked out the window and saw a silver car—later
determined to be an Acura—stopped on Wyoming [S]treet facing
east[,] and a purple Honda Ridgeline stopped on South 9th Street
facing south. Roth saw the Acura’s driver—later identified as
Charles Hughes III—get out, walk around the front of his vehicle,
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* Retired Senior Judge assigned to the Superior Court.
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and look at the passenger side. He also saw a black male wearing
black pants and a black hoodie walk from the side of the Honda
into the intersection. Hughes appeared to be gesturing to the man
from the Honda. Roth saw the man return to the Honda and go
to the rear driver’s door. The man then walked back to the
intersection with a shotgun in his hand, pointed the gun at
Hughes, and fired one shot. Hughes stumbled back and collapsed
on the sidewalk. The man ran back to the Honda and drove away,
heading south on South 9th street.
Another resident near the intersection, Kayla Espinal, was in her
second-floor bedroom when she heard what sounded like a car
crash outside. Espinal looked out the window and saw a purple
truck with tinted back windows stopped on South 9th Street facing
south just past the intersection with Wyoming Street. Espinal
also observed the silver Acura parked on Wyoming Street facing
east. She saw the truck’s driver—a black male with dreadlocks
wearing black pants, a black hoodie, and glasses—and the Acura’s
driver, Mr. Hughes, yelling at each other. After about 15 to 30
seconds, Espinal heard the truck’s driver tell Hughes he had
something for him, and saw him walk back to the truck and
retrieve a shotgun. Espinal saw the man walk back towards
Hughes while pointing the gun down. She saw the man move his
hand along the gun and heard two click sounds. She then saw the
man raise the gun and point it at Hughes. Espinal immediately
closed her eyes and heard a gunshot. Espinal ran downstairs and
looked outside. She saw Hughes lying on the sidewalk. The truck
and shooter were gone.
Allentown Police responded to the area and found Mr. Hughes
deceased on the sidewalk. After speaking with the witnesses,
police broadcasted a description of the truck and shooter. Police
also obtained surveillance video from a nearby business that
showed a purple Honda Ridgeline traveling south on South 9th
Street just minutes before the shooting. A horizontal white sticker
could be seen in the bottom left corner of the back window of the
Honda.
Approximately two hours later, in the area of 6th and Walnut
Streets, Allentown Police observed a purple Honda Ridgeline with
a white sticker on the driver’s side rear window. Officers followed
the truck north on 6th Street. The truck was stopped at a red light
at 6th and Linden Streets. An officer in a marked unit activated
his siren, at which point the driver of the Honda ran the red light
and drove north. At 6th and Turner Streets, the driver briefly
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pulled over, but then turned right and proceeded east on Turner
Street. While attempting to turn left on 5th Street, the driver lost
control and came to a stop on the sidewalk at the northeast corner
of 5th and Turner Streets. Police ordered the driver—later
identified as [Appellant], Curtis Thomas—out of the vehicle and
placed him into custody. There was a female juvenile passenger
that was also taken into custody. A subsequent search of the
truck revealed two cell phones, a shotgun, and shotgun shells.
The shotgun had one spent shell in the chamber and four live
shells in the magazine. One cell phone—a black Motorola in a blue
case—was found on the driver’s floor, turned on, and displaying a
navigation application.
[Appellant] was taken to police headquarters and was interviewed
after waiving his Miranda[1] rights. [Appellant] did not admit to
shooting Mr. Hughes, but acknowledged it was his truck in the
photo and that he was the only person that drove the truck that
day. He also advised that there was a shotgun in the truck, which
was his. Police ultimately obtained and executed a search warrant
for the black Motorola cell phone. Text messages, videos, and
photos were recovered from the phones. Many of the videos and
photos depicted [Appellant].
Following an autopsy on Mr. Hughes, the cause of death was found
to be a shotgun wound to the chest and the manner of death was
ruled a homicide. Ballistics analysis of the shotgun and shells
taken from [Appellant]’s truck determined they matched the
ammunition type, gauge, pellet size, and manufacturer as the
wadding and pellets retrieved from Mr. Hughes’ body.
Trial Court Opinion (“TCO”), 8/5/19, at 2-4.
The Commonwealth charged Appellant with first-degree murder, 18
Pa.C.S. § 2502(a); fleeing or attempting to elude an officer, 18 Pa.C.S. § 906;
and two counts of persons not to possess a firearm, 18 Pa.C.S. § 6105.
Appellant filed motions to suppress 1) evidence obtained from the search of
his cellphone and, 2) the statement he made to police while in custody. The
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1 See Miranda v. Arizona, 384 U.S. 436 (1966).
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trial court conducted a suppression hearing on May 15, 2018. On August 17,
2018, the court filed an opinion and order denying the suppression motions.
See Suppression Opinion (“SO”), 8/17/18, at 7 (determining that Appellant’s
Mirandized statement to police was voluntary), 10 (concluding that the
warrant was not defective). On December 14, 2018, following a bifurcated
trial, Appellant was convicted on all counts. The jury found him guilty of first-
degree murder and fleeing or attempting to elude an officer, and the trial court
found him guilty of both firearms offenses.
On January 22, 2019, the trial court sentenced Appellant to life
imprisonment without the possibility of parole for first-degree murder, and to
a consecutive term of 10-20 years’ incarceration for persons not to possess a
firearm. The court determined that the second firearm offense merged for
sentencing purposes. Appellant filed timely post-sentence motions, which
were denied on April 29, 2019, and he then filed a timely notice of appeal.
Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement, and the
trial court issued its Rule 1925(a) opinion on August 5, 2019.
Appellant now presents the following questions for our review:
A. Did the trial court err when it denied [Appellant]’s pretrial
motion to suppress statements [he] made during an
interrogation and following his receiving Miranda
warnings[,] which [Appellant] believes were not knowingly,
intelligently, and voluntarily waived?
B. Was the search warrant for the seizure and search of
[Appellant]’s cell phone proper or was it overbroad and [did
it] insufficiently set forth the evidence to be seized during
the search?
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C. Did the trial court erroneously permit the entry as evidence
at trial of various text messages taken from [Appellant]’s
cell phone when those text messages were not sufficiently
authenticated as having been sent by [Appellant]?
D. Was the jury verdict supported by sufficient evidence to
sustain the finding of [Appellant]’s guilt for the charge of
[first-degree] murder … when [he] believes he was not
adequately identified as the perpetrator of the homicide?
Appellant’s Brief at 9-10 (unnecessary capitalization omitted).
Appellant’s first two claims concern the suppression of evidence.
Our standard of review in addressing a challenge to the denial of
a suppression motion is 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, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. [If]
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 law of the courts below are subject
to our plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (cleaned up).
Suppression – Appellant’s Statement
In his first claim, Appellant asserts that his statement to police should
have been suppressed because it was not voluntarily, intelligently, and
knowingly given. Appellant argues that there “was no indication that [he] was
ever advised that the questioning would involve the alleged homicide. The
detectives only spoke about the ‘earlier accident’ without clarifying that they
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were referring to the alleged homicide of Mr. Hughes.” Appellant’s Brief at
19. It is undisputed that Appellant waived his Miranda rights before making
his statement to police. Thus, Appellant asserts that his Miranda waiver was
not knowingly and intelligently effectuated because he was ostensibly unaware
of the reason he was being interrogated by police.
In determining whether a defendant’s waiver of his Miranda
rights is valid, a trial court must consider: (1) whether the waiver
was voluntary, in the sense that the waiver was not the result of
governmental pressure; and (2) whether the waiver was knowing
and intelligent, in the sense that it was made with full
comprehension of both the nature of the right being abandoned
and the consequence of that choice. The Commonwealth bears
the burden of establishing that a defendant knowingly and
voluntarily waived his Miranda rights. Factors to be considered
in determining whether a waiver is valid and a confession is
voluntary include: the duration and means of interrogation; the
defendant’s physical and psychological state; the conditions
attendant to the detention; the attitude exhibited by the police
during the interrogation; and any other facts which may serve to
drain one’s powers of resistance to suggestion and coercion.
Commonwealth v. Patterson, 91 A.3d 55, 76 (Pa. 2014) (cleaned up).
In Commonwealth v. Collins, 259 A.2d 160 (Pa. 1969), our Supreme
Court held that “an intelligent and understanding waiver of the right to counsel
is impossible where the defendant has not been informed of the crime which
is being investigated.” Id. at 163. The Court further opined that “[i]t is a far
different thing to forgo a lawyer where a traffic offense is involved than to
waive counsel where first[-]degree murder is at stake.” Id.
When a defendant challenges the validity of his Miranda waiver
on this basis, the Commonwealth must establish, by a
preponderance of the evidence, that the defendant was aware of
the reason for the interrogation. The Commonwealth can meet
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this burden through evidence of the circumstances surrounding
the interrogation, such as the fact that the interrogation follows
hard upon the criminal episode and there is no circumstance
lending ambiguity to the direction and purpose of the questioning.
Commonwealth v. Johnson, 160 A.3d 127, 138 (Pa. 2017) (cleaned up).
In rejecting this claim, the trial court reasoned that Appellant
was aware of the general nature of the interview, and there was
no “palpable ambiguity” as to why the detectives were
interviewing him. [Commonwealth v.] Dixon, 379 A.2d [553,
557 (Pa. 1977)]. [Appellant] stated he had just arrived in
Allentown from D.C. that morning, so it would not be reasonable
to believe Allentown Police were questioning him about some
other matter; just two hours after the shooting, [Appellant] fled
from police when they attempted to stop him; and the detectives
interviewed him an hour later-just three hours after the shooting-
and told him they wanted to talk about the accident earlier in the
day. Additionally, [Appellant] had prior experience with Miranda
warnings, appeared to understand everything the detectives were
saying to him, and responded appropriately.
[Appellant] relies on … Dixon … to support his argument that [he]
may have believed he was being questioned about driving his car
off the road. However, the holding in Dixon hinged on the fact
that Ms. Dixon was previously advised she would be arrested if
she did not comply with a restitution order stemming from a prior
conviction. Additionally, Ms. Dixon was questioned about three
weeks after the incident and not “hard upon the criminal episode.”
Id. at 556. The same ambiguity does not exist in the case at hand.
It would be illogical for [Appellant] to think he was stopped by
police, ordered out of his vehicle with his hands up, arrested,
brought to police headquarters, and interrogated for driving his
car off the road.
On the facts of this case, I conclude that a preponderance of the
evidence establishes that [Appellant] knew the “occasion for the
interrogation” at the time he waived his rights. As such,
suppression is not warranted.
SO at 6-7 (some citations omitted).
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First, we agree with the trial court in rejecting Appellant’s claim that this
case is indistinguishable from Dixon. Appellant was arrested in close
temporal proximity to the occurrence of the murder for which he was being
questioned. Dixon was questioned several weeks after her victim’s already-
decomposed body had been discovered, suggesting even far more time had
elapsed since the murder had occurred. Dixon, 379 A.2d at 554. When police
attempted to stop Appellant’s vehicle only two hours after the murder, he fled,
and was forcibly detained while still in constructive possession of the murder
weapon. Dixon, by contrast, voluntarily went to the police station without
being told the reason why the police were interested in questioning her. Id.
at 555. Dixon is clearly inapposite to the matter at hand.
Second, we acknowledge that the officers’ initial use of the term
“accident” potentially created ambiguity regarding the topic of the
interrogation that followed Appellant’s waiver of his Miranda rights, but only
when viewed without regard to the other relevant circumstances surrounding
the interrogation. Moreover, the Commonwealth’s burden was only to show
by a preponderance of the evidence that Appellant was aware of the reason
he was being questioned. “A preponderance of the evidence is tantamount to
a ‘more likely than not’ standard.” Commonwealth v. Esquilin, 880 A.2d
523, 529 (Pa. 2005). Here, we ascertain no abuse of the trial court’s discretion
in its determination that a preponderance of the evidence demonstrated that
Appellant must have been aware that he was being questioned for a murder,
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and not for merely being involved in an accident. Accordingly, we conclude
that Appellant’s first claim lacks merit.
Suppression – Cell Phone Search and Seizure
Next, Appellant argues that there was insufficient probable cause for the
warrant issued to seize and search his cell phone, and/or that the warrant was
overbroad in scope. First, he contends that the affidavit of probable cause in
support of the warrant was “devoid of any reasonable supporting evidence
that the phone was used or was otherwise an integral part of [Appellant’s]
actions in planning or committing the homicide.” Appellant’s Brief at 25.
The legal principles applicable to a review of the sufficiency of
probable cause affidavits are well settled. Before an issuing
authority may issue a constitutionally valid search warrant, he or
she must be furnished with information sufficient to persuade a
reasonable person that probable cause exists to conduct a search.
The standard for evaluating a search warrant is a totality of the
circumstances test as set forth in Illinois v. Gates, 462 U.S. 213,
… (1983), and adopted in Commonwealth v. Gray, … 503 A.2d
921 ([Pa.] 1985). A magistrate is to make a practical, common
sense decision whether, given all the circumstances set forth in
the affidavit before him … there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.
Commonwealth v. Ryerson, 817 A.2d 510, 513–14 (Pa. Super. 2003)
(cleaned up).
Here, the trial court determined that
there was a substantial basis for a finding of probable cause for
issuance of the search warrant. According to the search warrant
application, a black Motorola cell phone was found on the driver’s
side floor where [Appellant] had been sitting, just hours after the
shooting; the phone was unlocked, powered on, and displaying a
navigation application; and the juvenile passenger in the vehicle
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advised he/she was in phone contact with [Appellant] following
the shooting. Considering all the information contained within the
four corners of the affidavit, there was a fair probability that
evidence relevant to the shooting would be found on [Appellant]’s
cell phone. As such, a substantial basis existed for the issuing
authority’s finding of probable cause.
SO at 8-9.
We agree with the trial court. Because the phone was found in the
vehicle identified by the witnesses a few hours after the shooting, there was
a reasonable possibility that it might contain evidence relevant to the murder
investigation. It does not require much imagination to believe a phone found
in such circumstances might contain either inculpatory or exculpatory
evidence, such as location data at the time of the crime, potential recordings
of the incident itself or other events closely related to the murder, or
communications between Appellant and other persons before and after the
shooting, to name just a few possibilities. Appellant cites no authority for the
proposition that there must be probable cause to believe the phone was
directly used in the killing, rather than its merely providing some evidence
related to the killing.
Appellant cites Commonwealth v. Wright, 99 A.3d 565 (Pa. Super.
2014), in support of his claim, but we find that case is distinguishable on the
facts and by its procedural posture. In Wright, the defendant was accused
by a witness of killing two victims. Id. at 567. When executing a warrant
for his arrest, police claimed that after they discovered Wright in a state of
undress in his bed, they chose a pair of pants for him to put on. Id. Inside
those pants, they claimed to have discovered a cell phone, which they seized
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incident to his arrest. Id. The suppression court did not find the officers’
testimony credible, and instead believed Wright’s mother’s testimony, who
indicated that the police had seized the phone from a table next to the bed.
Id. at 568. The court then granted suppression, on the basis that the phone
had not been seized incident to his arrest. This Court affirmed the suppression
order, rejecting the Commonwealth’s assertion that the even if not seized
incident to Wright’s arrest, the phone was seized in plain view and its criminal
nature was “readily apparent.” Id. at 569.
The instant case is distinguishable from Wright. First, Wright involved
the Commonwealth’s appeal after the trial court granted a suppression
motion. Second, the phone at issue here was not seized under some general
theory that cell phones are inherently incriminating, as had occurred in that
case. Rather, the at-issue phone was discovered by police in a context where
it was likely to aid in determining the location of Appellant and his vehicle at
the time of the murder, especially given the fact that when discovered, the
phone was observed running a navigation application. It was a reasonable
inference that if the phone was in Appellant’s possession when he was arrested
in his vehicle, it was more probable than not that it was also in his possession
at the time the murder occurred, and could therefore confirm his location at
that time, or contain messages sent immediately before or after the killing.
In either case, such information would be highly relevant to a criminal
prosecution of Appellant. In Wright, there were no facts indicating Wright’s
possession of the phone immediately before or after the murders under
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investigation in that matter; thus it was pure conjecture that the phone had
any relevance to the murders under investigation. Accordingly, we conclude
that there is no merit to Appellant’s claim that there was insufficient probable
cause for the magistrate to issue a warrant to search Appellant’s phone.
Second, Appellant argues that the warrant to search his cell phone was
overbroad because it permitted a search of essentially all applications and any
data contained in the phone. Appellant’s Brief at 27-28. The warrant granted
a search of:
All user generated data stored on the handset and/or SIM card -
including user information, ring tones, audio files, e-mails,
websites visited, all call logs (incoming & outgoing), information,
Short message services (SMS) - including deleted messages, and
Multi application (App) data used to communicate and/or to store
data on the phone, flash storage [and a]ll data stored on a flash
memory card from within the handset.
Search Warrant, 1/26/18, at 1.
It is a fundamental rule of law that a warrant must name or
describe with particularity the property to be seized and the
person or place to be searched. The particularity requirement
prohibits a warrant that is not particular enough and a warrant
that is overbroad. These are two separate, though related, issues.
A warrant unconstitutional for its lack of particularity authorizes a
search in terms so ambiguous as to allow the executing officers to
pick and choose among an individual’s possessions to find which
items to seize. This will result in the general rummaging banned
by the Fourth Amendment. A warrant unconstitutional for its
overbreadth authorizes in clear or specific terms the seizure of an
entire set of items, or documents, many of which will prove
unrelated to the crime under investigation. An overbroad warrant
is unconstitutional because it authorizes a general search and
seizure.
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Commonwealth v. Dougalewicz, 113 A.3d 817, 827 (Pa. Super. 2015)
(cleaned up).
Here, the trial court determined that the warrant was not overbroad,
stating:
[T]here was probable cause to believe [Appellant] was using his
cell phone, including applications, before and after the shooting.
The search warrant application makes clear that when dealing with
computerized/digital information, it is common to require officers
to seize most or all of the device’s data in order to properly identify
and extract the relevant evidence. Additionally, a user may try to
conceal evidence on a digital device with deceptive file names or
extensions, or by attempting to delete files. Under the
circumstances, the description of the items to be search[ed] for
and seized was as specific as reasonably possible. As such, the
warrant was not overbroad and suppression is not warranted.
SO at 10.
Appellant nevertheless contends that he was subjected to a general
search, because the warrant issued to search his phone “was as broad as
possible.” Appellant’s Brief at 27. He complains that it requested “all
application data stored either on the phone or in any flash memory or in cloud
storage. It is hard to picture how the request could have been any more
general in nature or all-encompassing.” Id.
We disagree. The at-issue warrant permitted the search of a single
electronic device, Appellant’s cell phone; it did not permit a general search of
multiple devices or a search of multiple locations. Appellant does not dispute
that he possessed the phone, or his ownership thereof, before, during, and
immediately after the shooting. We are aware of no controlling authorities
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that suggest that the search of a single electronic device in similar
circumstances is overbroad merely because of the quantity of information it
potentially contains.
Other than a few cases cited for boilerplate case law, Appellant points
to only one in support of his argument, this Court’s decision in
Commonwealth v. Melvin, 103 A.3d 1 (Pa. Super. 2014), and his analysis
of that case is superficial at best. In Melvin, the defendant, a judge, was
accused of misusing her public office for private gain by using her publicly-
funded judicial staff to aid in her reelection campaign. Id. at 10. Pursuant to
the investigation, a warrant was issued to search virtually all of her emails
over a period of several years, from both her private and work email accounts.
Id. at 17 n.7. Melvin’s suppression motion only challenged the warrant with
respect to her private email accounts. Id.
This Court held that the warrant was overbroad with respect to Melvin’s
private email accounts because,
while the supporting affidavit provided probable cause that
evidence of criminal activity could be found in emails in the
account, it did not justify a search of every email therein, including
those with no relation to criminal activity. Because the warrant
permitted the seizure of every email in the account without any
attempt to distinguish the potentially relevant emails from those
unrelated to the investigation, it permitted a general search and
seizure that was unconstitutionally overbroad.
Id. at 18–19 (borrowing the Court’s analysis from a companion case).
However, Melvin did not involve a search of a single electronic device,
and the unrestricted search of the email account most closely associated with
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the criminal conduct at issue was not under review. For these reasons, we
find Melvin inapposite.
Additionally, while probable cause existed to search the phone, it was
not immediately obvious, nor could it be, what particular applications or
functions would ultimately produce relevant evidence. Appellant’s argument
would suggest that a warrant issued to search for drugs in a car, supported
by probable cause, must additionally specify where the drugs will be found in
the car before it is searched in order to overcome the constitutional restriction
on overbroad warrants. We reject such an interpretation of the overbreadth
doctrine as practically unworkable. It is enough that probable cause existed
to search the phone for evidence related to the murder, where the phone was
in Appellant’s possession when he was apprehended shortly after the murder,
and it was reasonable to assume that it had been used immediately prior,
during, and/or after the shooting. Accordingly, we conclude the trial court did
not abuse its discretion when it denied Appellant’s suppression motion on the
basis that the warrant was not overbroad.
Authentication
Next, Appellant argues that that the trial court erred when it admitted
“the messages, videos, and photographs” from Appellant’s phone without
proper authentication. Appellant’s Brief at 29.
“Admission 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.” In Interest of F.P., 878 A.2d 91,
94 (Pa. Super. 2005). Electronic communications, such as text
messages, must be authenticated prior to their admission. See
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Commonwealth v. Koch, 39 A.3d 996, 1002–03 (Pa. Super.
2011)…. “[P]roof of any circumstances which will support a
finding that the writing is genuine will suffice to authenticate the
writing.” F.P., 878 A.2d at 94.
Under Pennsylvania Rule of Evidence 901, text messages may be
authenticated by: (1) testimony from either the author or the
sender; (2) circumstantial evidence, including “distinctive
characteristics” like information specifying the author-sender or
“reference to or correspondence with relevant events” preceding
or following the message; or (3) “any other facts or aspects of the
[message] that signify it to be what its proponent claims.”
Commonwealth v. Koch, … 106 A.3d 705, 712–13 ([Pa.] 2014)
(Castille, C.J., in support of affirmance); see Commonwealth v.
Collins, … 957 A.2d 237, 265–66 ([Pa.] 2008). Further,
“[a]uthentication generally entails a relatively low burden of
proof; in the words of Rule 901 itself, simply ‘evidence sufficient
to support a finding that the item is what the proponent claims.’”
Koch, 106 A.3d at 713 (quoting Pa.R.E. 901(a)).
Commonwealth v. Murray, 174 A.3d 1147, 1156–57 (Pa. Super. 2017).
Instantly, Appellant challenges the authentication of the following
evidence obtained from his cellphone:
The prosecution’s evidence taken from the phone included a text
message sent on November 1, 2017[,] at 12:25 PM[,] in which
the message sent from the phone to an individual known as “Billy
Bad Azz” … stated “Gotta get another ride, had 2 dxgg a nigga
this morning.” There was also discovered an earlier text message
sent on October 27, 2017[,] in which the sender used the word
“Dxgg.” Additionally, on October 19, 2017[,] [Appellant] filmed
himself in a video during which he stated “... I found the nigga, I
see him. He got a few of his little homies with him. I’m bout to
run down on them niggas. No dogg, no nothing, I’m gonna show
you niggas what’s really good with me... I am definitely about to
go walking through this m.f. man... I’m bout to get yo bitch ass.”
Appellant’s Brief at 29.
Appellant contends he
must … be, at [a] minimum, circumstantially tied to the authorship
of the electronic messages or videos that the Commonwealth
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wish[ed] to use especially the electronic message posted the day
of the shooting for which the Commonwealth alleged [Appellant]
had made an admission that he was involved in a shooting. The
Commonwealth, at the time of the hearing for its Motion in Limine,
sought to obtain the admission of the text and other materials
from the phone by comparing the November 1[st] text message to
an earlier text message in which the same “word” appeared. That
word, “Dxgg” was, according to the Commonwealth, enough to
show that [Appellant] authored both messages and that they had
properly authenticated those same messages. This
authentication, if permitted, allows Rule 901 to be validated
through the application of one anonymous text message to verify
a second anonymous text message. The Commonwealth failed to
present an adequate level of authentication for either text
message showing that it was [Appellant] who authored the
messages. There appeared to be no showing by any other direct
or circumstantial evidence that [Appellant] had authored the
second message or that other individuals had been [eli]minated
from the possible use of that phone in the creation of one or both
of the text messages.
Id. at 32-33. We disagree.
First, we note that Appellant fails to develop his argument with respect
to the videos. Thus, that aspect of his claim is waived.2 As to the text
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2“The Rules of Appellate Procedure state unequivocally that each question an
appellant raises is to be supported by discussion and analysis of pertinent
authority.” Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa. Super.
2002); see also Pa.R.A.P. 2119(b). “Appellate arguments which fail to
adhere to these rules may be considered waived, and arguments which are
not appropriately developed are waived. Arguments not appropriately
developed include those where the party has failed to cite any authority in
support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa.
Super. 2006) (citations omitted). This Court will not act as counsel and will
not develop arguments on behalf of an appellant. Irwin Union National
Bank and Trust Company v. Famous and Famous and ATL Ventures, 4
A.3d 1099, 1103 (Pa. Super. 2010) (citing Commonwealth v. Hardy, 918
A.2d 766, 771 (Pa. Super. 2007)).
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messages, we agree with the Commonwealth’s analysis that the text
messages were sufficiently authenticated by ample circumstantial evidence.
The Commonwealth stated:
Here, the prosecutor provided the lower court with a sufficient
foundation that authenticated the text messages:
 At 11:54 am on November 1, 2017, the victim is shot and
killed.
 Two independent witnesses describe the shooter and his
vehicle. Their descriptions match [Appellant] and the
vehicle he was driving when he is subsequently arrested - a
maroon Honda Ridgeline.
 Four minutes prior to the shooting, at 11:50 am,
surveillance video captures a maroon Honda Ridgeline with
a front license plate travelling south across the 8th Street
bridge in Allentown. There is a horizontal white sticker on
the rear window of the vehicle.
 Two minutes later, at 11:52 am, surveillance video captured
a maroon Honda Ridgeline with a horizontal white sticker on
the rear window in the immediate vicinity of South 9th Street
and Wyoming Street, which is the scene of the shooting.
 [Appellant] identified the vehicle on the surveillance video
as his.
 Approximately 2 hours later, at 2:07 pm, Allentown
Assistant Police Chief Gail Struss located a maroon Honda
Ridgeline with a white sticker on its rear window in the area
of North 6th Street and W. Walnut Street in Allentown. When
she attempted to stop the vehicle, it fled and subsequently
crashed in the area of 5th and Turner Streets. [Appellant] is
the driver.
____________________________________________
In any event, had Appellant not waived this aspect of his claim, we
would still find it meritless for the same reason we reject his claim that the
text messages were not properly authenticated, as discussed, infra.
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 Detective John Brixius arrives at the scene immediately
thereafter. As [Appellant] is being escorted from the
Ridgeline, he observes a cell phone on the driver side floor
boards of the Ridgeline, where [Appellant] had been sitting.
The cell phone is powered on and actively running a “Waze”
navigation app.
 As [Appellant] is escorted by police away from the Honda
Ridgeline accident, he tells police that the girl in the
passenger seat was not with him, he just picked her up at
McDonald’s. He then asks police for his phone, which was
still in the Ridgeline.
 During his interview, [Appellant] claims that he is from
Washington[,] D.C., and travelled to Allentown around 8:00
am that morning. He also tells police he was alone all day.
 [Appellant] further tells police the he has 2 cell phones in
his Ridgeline. When shown the 2 phones recovered from
the Ridgeline, [Appellant] confirms that both of them are his
and provides police with the phone numbers associated to
each.
 [Appellant] reiterated that the female in his car at the time
of his arrest, was not in the car until approximately 5
minutes prior - i.e., 2:02 pm.
 Approximately 30 minutes after the shooting, at 12:25 pm,
a text message is sent from [Appellant]’s phone to an
individual identified in [Appellant]’s contact list on the phone
as “Billy Bad Azz.” This individual has a 202 area code,
which is the area code for Washington[,] D.C., where
[Appellant] claims to live.
 The text message sent from [Appellant]’s phone states,
“Gotta get another ride, had 2 dxgg a nigga this morning.”
 Also on [Appellant]’s phone was a text message from his
phone to “Ace Buggie” stat[ing], “you get that dxgg.” This
message was sent on October 27, 2017, five days prior to
the shooting.
 “Ace Buggie” responded to the text from [Appellant]’s
phone, “My brother ain’t answer all day I think my father
got one for me but I have to pull up on him no talk over the
phone at all.”
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 On October 19, 2017, [Appellant] filmed himself with his
phone. In the video is [Appellant] alone in his vehicle a[n]d
he states: “I found the nigga, I see him. He got a few of his
little homies with him. I’m bout to run down on them niggas.
No dog, do nothing. I’m gonna show you nigga’s what’s
really good with me ... I’m definitely bout to go walking
through this mother fucker man ... I’m bout to get yo bitch
ass.”
 There are approximately 70 more similar videos [Appellant]
took of himself saved on defendant’s phone.
 Police also found hundreds of images that were “selfies” of
[Appellant] on his phone.
N.T.[,] 12/4/18, [at] 37-39, 48-51, 61-64. See also
Commonwealth’s Memo –Text Message Authentication, 12/7/18,
attached hereto as Exhibit A.
Based on the totality of the circumstances set forth above[,]
particularly the temporal proximity between the text message in
question and the time of the shooting (31 minutes), the proximity
of [Appellant] at the time of the text to the scene of the crime,
[Appellant]’s assertion of ownership and use of that phone within
2 hours of the shooting, and the lack of another person in
[Appellant]’s vehicle at the time of the text message – the
electronic communication was sufficiently authenticated. As such,
the lower court properly admitted it as evidence.
Commonwealth’s Brief at 20-22.
The facts, collectively, more than adequately authenticated that the at-
issue content on Appellant’s cell phone was written by him. Appellant
admitted that it was his phone, and verified the correct phone number. The
timing of the later-in-time text message was temporally connected to the
homicide. The prior message was to the same number and contact name in
Appellant’s contact list. Numerous images and videos on the phone depicted
Appellant. We ascertain no abuse of discretion in the trial court’s determining
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that “the Commonwealth sufficiently authenticated” the text messages. TCO
at 6.
Sufficiency of the Evidence
Finally, Appellant challenges the sufficiency of the evidence supporting
his conviction for first-degree murder. Specifically, he contends that the
evidence was insufficient to prove his identity, due to inconsistencies in the
testimony of the eyewitnesses. Appellant’s Brief at 35-36. This argument is
meritless.
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim[,] the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
In reviewing the sufficiency of the identification evidence,
we note that, even though vague, tenuous and uncertain
identifications standing alone are insufficient, our courts have held
that evidence of identification needn’t be positive and certain in
order to convict, although any indefiniteness and uncertainty in
the identification testimony goes to its weight. Similarly, although
identification based solely on common items of clothing and
general physical characteristics is insufficient to support a
conviction, such evidence may be considered to establish identity
along with other circumstances and the proffered identification
testimony.
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Commonwealth v. Minnis, 458 A.2d 231, 233 (Pa. Super. 1983) (cleaned
up).
Here,
[t]wo witnesses gave descriptions of the shooter, the shotgun,
and the vehicle the shooter was driving; video footage from the
area of the shooting captured the vehicle described; police pulled
a matching vehicle over approximately two hours after the
shooting; [Appellant] was driving the vehicle and matched the
description of the shooter; a shotgun and shotgun shells were
found in the vehicle; and ballistics connected the gun and shells
to the projectile recovered from the victim.
Accepting as true this evidence, as well as any reasonable
inferences arising from it, it was sufficient in law to prove beyond
a reasonable doubt that [Appellant] is guilty of the crimes for
which he was convicted.
TCO at 7.
These collective circumstances were more than sufficient to identify
Appellant as the shooter. Any discrepancies in the evidence went to the
weight, not the sufficiency of that evidence.3 In any event, the trial court
noted that “the description[s] given by the witnesses were very similar. Both
described a black male wearing a black hoodie and driving a purple truck.”
Id. at 7. Although those descriptions were not precise (as the eyewitnesses
viewed the shooting from a distance), Appellant’s identity was further
corroborated by the circumstances of his arrest. Two hours after the shooting,
Appellant fled from police in a vehicle matching the eyewitnesses’ testimony,
and in which the murder weapon was ultimately discovered. Additionally, the
____________________________________________
3 Appellant raised a weight claim in his Rule 1925(b) statement, but
abandoned it in his brief. Accordingly, that claim is waived.
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evidence contained in Appellant’s cell phone tended to corroborate his identity
as the shooter. Accordingly, we conclude that there is no merit to Appellant’s
claim that the evidence was insufficient to establish his identity.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/20
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