Com. v. Ellis, K.

J-S30011-20 & J-S30012-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KASHIF OMAR ELLIS :
:
Appellant : No. 1577 WDA 2019
Appeal from the Judgment of Sentence Entered April 16, 2019
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0001880-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KASHIF ELLIS :
:
Appellant : No. 1580 WDA 2019
Appeal from the Judgment of Sentence Entered April 16, 2019
In the Court of Common Pleas of Blair County Criminal Division at No(s):
CP-07-CR-0000773-2018
BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED AUGUST 11, 2020
In these consolidated appeals, Kashif Omar Ellis (Appellant) appeals
from the judgment of sentence imposed after a jury convicted him of first-
degree murder, robbery, criminal conspiracy, aggravated assault, burglary,
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* Former Justice specially assigned to the Superior Court.
J-S30011-20 & J-S30012-20
criminal trespass, recklessly endangering another person, discharging a
firearm into an occupied structure, criminal use of a communication facility,
and possession with intent to deliver a controlled substance (collectively, “the
murder charges”).1 The jury also convicted Appellant, in a separate case, of
intimidation of a witness/victim, and retaliation against a witness/victim2
(collectively, “the intimidation charges”). We affirm.
On July 13, 2013, Appellant orchestrated a robbery with his then-
paramour and co-defendant, Taylor Griffith (Griffith), and Quasim Green
(Green). At Appellant’s direction, Griffith visited the residence of the victim,
Stephen Lamont Hackney (Decedent). While inside the residence, Griffith
texted Appellant, informing him that she saw large quantities of narcotics and
U.S. currency, and that the Decedent was alone and unarmed. Griffith, who
was a Commonwealth witness at trial, testified that she unlocked the back
door to the Decedent’s residence so that Appellant and Green could enter.
Appellant barged into the Decedent’s bedroom and shot him three times,
resulting in his death. Appellant and his co-defendants then stole the cash
and narcotics and fled.
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1 18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 903(a), 2702(a)(1) and (4),
3502(a)(1), 3503(a)(1)(i), 2705, 2707.1(a), 7512(a); 35 P.S. § 780-
113(a)(30).
2 18 Pa.C.S.A. §§ 4952(a)(1), 4953(a).
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J-S30011-20 & J-S30012-20
The police responded to the scene and discovered the Decedent’s body,
as well as large quantities of cash nearby. After securing and searching the
surrounding area, police seized a Samsung cellphone (Samsung phone), which
had been discarded in the alley behind the Decedent’s residence. The police
obtained a search warrant for the digital contents of the Samsung phone.
Forensic analysis of the Samsung phone revealed that it belonged to Green.
The investigation into the murder went on for several years. During the
investigation, the police utilized a software geo-location mapping program
called CellHawk.3 The investigating officers accessed CellHawk geo-location
data for two separate cell phones that, police determined, were respectively
associated with Appellant and Griffith. The data showed these phones in the
general area of the Decedent’s residence on the night of the murder. It further
showed that both Appellant and Griffith’s phones were in the Philadelphia area
shortly after the murder, which corroborated Griffith’s account. The police
obtained the CellHawk evidence, with respect to both Appellant and Griffith’s
phones, via a court order.
Notably, one of the police officers involved in the investigation was
former Altoona police detective Matthew Starr (Officer Starr). After most of
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3 This program collects historical data from cellular tower “pings” to locate
cellphone users on a given date and time.
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the investigation had occurred, Officer Starr was terminated from the police
force and convicted of fraud in an unrelated matter.4
In July 2017, the Commonwealth filed the murder charges against
Appellant at CR 1880-2017 (No. 1880-2017). The Commonwealth
subsequently initiated a second case against Appellant in May 2018, docketed
at CR 773-2018 (No. 773-2018), charging him with the intimidation charges.5
The trial court joined the two cases.
Appellant subsequently filed an omnibus pre-trial motion (OPT motion).
The OPT motion sought, inter alia, suppression of (1) Appellant’s CellHawk
historical cell site location information; and (2) recordings of inculpatory
telephone calls and letters that Appellant made while incarcerated pending
trial (“the prison calls evidence.”). The trial court conducted two hearings,
after which it denied the OPT motion.
In November 2018, Appellant filed a motion (the recusal motion),
asserting that the entire bench of Blair County, as well as the District
Attorney’s Office, should be disqualified from participating in his trial. He
argued that there was a conflict of interest because Griffith was the daughter
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4 Neither party called Officer Starr as a witness at Appellant’s trial.
5 These charges arose out of Appellant’s threatening to kill Griffith because
she agreed to testify as a Commonwealth witness against Appellant in
exchange for pleading guilty to third-degree murder, and receiving a sentence
of 15 to 30 years in prison.
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of the Blair County Prothonotary/Clerk of Courts, Robin Patton (Prothonotary
Patton). The trial court denied the recusal motion.
On January 3, 2019, four days prior to jury selection, Appellant filed a
motion for a continuance, which the trial court denied. Jury selection
commenced on January 7, 2019. Appellant was shackled during jury selection
and trial. For this reason, Appellant filed a motion for a mistrial, which the
trial court denied. The jury convicted Appellant of the murder charges and
the intimidation charges.
On April 16, 2019, the trial court sentenced Appellant, at No. 1880-
2017, to life in prison without the possibility of parole. At No. 773-2018, the
court imposed an aggregate sentence of 5 to 10 years in prison, to run
consecutively to the sentence at No. 1880-2017.
On April 26, 2019, Appellant filed a timely post-sentence motion for
reconsideration of sentence/new trial. He challenged the trial court’s denial
of his claims raised in the OPT motion and recusal motion. He further asserted
that he should not have been shackled during jury selection, and that the
Commonwealth committed a discovery violation by failing to provide the
defense with certain witness statements prior to trial. The trial court denied
the post-sentence motion by an order and opinion entered on December 2,
2019.
Appellant timely filed notices of appeal at each docket number, followed
by court-ordered concise statements of errors complained of on appeal,
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pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). This Court
consolidated the appeals sua sponte.
In the appeal at No. 1880-2017, Appellant presents nine issues for
review:
I. WAS [APPELLANT] DENIED HIS RIGHT TO DUE PROCESS
AND A FAIR AND IMPARTIAL TRIAL WHEN HE WAS
PARADED IN FRONT OF THE JURY AT JURY SELECTION IN
SHACKLES?
II. WAS [APPELLANT] DENIED DUE PROCESS AND A RIGHT TO
A FAIR AND IMPARTIAL TRIAL WHEN THE TRIAL COURT
REFUSED TO SUPPRESS THE INTERCEPTION OF
[APPELLANT’S] PHONE RECORDS AND WRITTEN
COMMUNICATIONS OBTAINED FROM THE STATE
CORRECTIONAL INSTITUTIONS OF GRATERFORD AND
HUNTINGDON WITHOUT A WARRANT?
III. DID THE COMMONWEALTH COMMIT BRADY[6] VIOLATIONS
IN FAILING TO TIMELY DISCLOSE THE STATEMENT OF
ASHLEY BRUBAKER AND TO TIMELY REVEAL THE
COMMONWEALTH’S KNOWLEDGE OF THE
UNTRUTHFULNESS OF THE STATEMENT OF POTENTIAL
COMMONWEALTH WITNESS KELSEY BERGMAN?
IV. DID THE COMMONWEALTH VIOLATE THE RULES OF
DISCOVERY BY FAILING TO PROVIDE TIMELY NOTICE OF
THE TESTIMONY OF ASHLEY BRUBAKER AND THE
UNTRUTHFULNESS OF THE STATEMENT OF POTENTIAL
COMMONWEALTH WITNESS KELSEY BERGMAN[,] ALONG
WITH FAILING TO PROVIDE NOTICE OF THE EXPERT
TESTIMONY OF AGENT THOMAS MOORE OF THE ATTORNEY
GENERAL’S OFFICE[,] ALL OF WHICH INFORMATION
SHOULD HAVE BEEN REVEALED IN DISCOVERY[?]
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6 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”).
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J-S30011-20 & J-S30012-20
V. DID THE COURT VIOLATE [APPELLANT’S] RIGHT UNDER
THE CONFRONTATION CLAUSE OF BOTH THE UNITED
STATES CONSTITUTION AND THE PENNSYLVANIA
CONSTITUTION TO CROSS-EXAMINE TRAVIS DENNY[,]
WITH RESPECT TO A LETTER SUBMITTED TO HIS ATTORNEY
BY HIS GIRLFRIEND SEEKING A REDUCTION IN THE
SENTENCE HE WAS SERVING?
VI. DID THE TRIAL COURT ERR IN DENYING A HEARING ON
[APPELLANT’S] FRANKS[ V. DELAWARE, 438 U.S. 154
(1978)] MOTION WITH RESPECT TO THE SEARCH
WARRANTS BASED UPON THE STATEMENTS AND
INFORMATION PROVIDED BY AN UNRELIABLE WITNESS[,]
AS WELL AS THE ACTIONS AND ACTIVITY FROM [OFFICER]
STARR WHO WAS SUBSEQUENTLY CONVICTED AND
SENTENCED ON CHARGES INVOLVING FRAUD?
VII. DID THE COURT DENY [APPELLANT’S] RIGHT TO A FAIR
AND IMPARTIAL TRIAL BY REFUSING TO RECUSE ITSELF
AND/OR RECUSE THE DISTRICT ATTORNEY OF BLAIR
COUNTY WHEN HIS CO-DEFENDANT, TAYLOR GRIFFITH[,]
AND MAIN COMMONWEALTH WITNESS WAS THE
DAUGHTER OF THE PROTHONOTARY AND CLERK OF COURT
OF BLAIR COUNTY?
VIII. WAS [APPELLANT] IMPROPERLY DENIED HIS REQUEST FOR
A CONTINUANCE FILED WITH THE COURT ON JANUARY 3,
2019 AND DENIED BY ORDER OF COURT DATED JANUARY
4, 2019 FILED ON JANUARY 7, 2019[?]
IX. WAS [APPELLANT] DENIED HIS RIGHT TO DUE PROCESS
AND A FAIR AND IMPARTIAL TRIAL WHEN THE
COMMONWEALTH OBTAINED EVIDENCE AS TO PINGING
[O]F … [APPELLANT’S] CELL PHONE THROUGH A COURT
ORDER INSTEAD OF PROPERLY OBTAINING A WARRANT
FOR SAID EVIDENCE AS REQUIRED BY CARPENTER V.
UNITED STATES, 585 U.S. ___, 138 [S. CT.] 2206, 201
LAWYERS EDITION 2D. 507[] (2018)[?]
Appellant’s Brief (1577 WDA 2019) at 6-9 (footnote added, issues ordered).
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J-S30011-20 & J-S30012-20
In the appeal at No. 773-2018, Appellant raises three issues. These
issues are identical to and correspond with three of the issues that Appellant
presents above; namely, issues 1, 7 and 8.7 See Appellant’s Brief (1580 WDA
2019) at 6. Accordingly, we will address those issues together.
In his first issue, Appellant argues that he was deprived of his right to a
fair trial, and his presumption of innocence, where he was “paraded” in front
of the jury while restrained with shackles. Appellant’s Brief at 19-24.
Appellant contends that the trial court thus erred in denying his motion for a
mistrial. Id. at 19.
It is well settled under common law and the Constitution
that, part and parcel of the concept of a fair trial, is a defendant’s
right to be permitted to appear free from shackles or other
physical restraint – this right, however, is not absolute.
Commonwealth v. Jasper, 610 A.2d 949, 955 (Pa. 1992).
Circumstances that have justified the use of restraint include
where a defendant disrupts the proceedings, where there is a
danger of escape, and where the court believes that an
unrestrained defendant may attack others. Id. Proper security
measures are within the sound discretion of the trial court, and,
thus, will not be disturbed absent an abuse of that discretion.
Commonwealth v. Patterson, 308 A.2d 90, 94 (Pa. 1973).
In the Interest of F.C. III, 2 A.3d 1201, 1222 (Pa. 2010) (citations
modified). Additionally, “where the trial evidence shows that a violent
defendant was incarcerated at the time of trial, no prejudice occurs even when
restraints are visible to the jury.” Jasper, 610 A.2d at 955.
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7 Citations to Appellant’s arguments for these issues reference Appellant’s
Brief at 1577 WDA 2019.
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J-S30011-20 & J-S30012-20
The trial court rejected this issue on the basis that:
(1) Appellant failed to establish that the jury actually saw him in
restraints at any point;
(2) Even if the restraints were visible, the jury already knew that
Appellant was incarcerated by other information, and thus, he
suffered no prejudice; and
(3) In light of Appellant’s numerous misconducts in pre-trial
incarceration, his threatening to kill a Commonwealth witness,
and his unruly courtroom behavior, it was necessary to place him
in restraints to ensure safety and courtroom order.8
See Opinion and Order, 9/20/19, at 20-22. Upon review, we incorporate
further the trial court’s reasoning, which is supported by the law and the
record. See id. In so doing, we note that during pre-trial proceedings, the
trial court expressly warned Appellant that his threatening and unruly conduct
could result in him being restrained during trial. See N.T., 3/23/18, at 7;
N.T., 7/30/18, at 35-36. In addition, during jury selection, Appellant was
dressed in civilian clothing, his right hand was free, and the defense table was
equipped with a “skirt”, which blocked the jury from seeing anything below
Appellant’s waist. N.T., 1/7/19, at 20. Finally, the court stated that it would
have been willing to issue a curative instruction to the jury concerning
restraints and/or Appellant’s incarceration, but defense counsel did not
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8 While Appellant was incarcerated in the Blair County Prison awaiting trial, he
threatened to harm Griffith and prison personnel. In pre-trial proceedings,
the trial court warned Appellant that if he continued this conduct, the court
would have no choice but to shackle him in further court proceedings.
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J-S30011-20 & J-S30012-20
request an instruction. See id. at 10-15. We therefore find no merit to
Appellant’s first issue.
In his second issue, Appellant argues that the trial court erred by
depriving him of a fair trial when it refused to suppress the prison calls
evidence; Appellant claims the evidence was the product of an unlawful search
and seizure. See Appellant’s Brief at 27-31.
The trial court likewise addressed this claim in its opinion, summarizing
the relevant law concerning the admissibility of such evidence, and
determining that denial of the suppression request was proper because:
(1) The court initially denied Appellant’s motion to suppress the
evidence “without prejudice” to Appellant to renew and further
develop the claim, but he never did so;
(2) Appellant never objected to the admission of this evidence at
trial; indeed, he actually consented to the entire recording of
Appellant’s calls from prison being played to the jury; and
(3) Appellant failed to articulate any reasonable expectation of
privacy that he had concerning these communications.
See Opinion and Order, 9/20/19, at 16-19. Again, the court’s reasoning is
supported by the record and law, and we agree with its conclusion. We further
note that the Commonwealth’s interception of Appellant’s prison phone calls
was permitted under Pennsylvania’s Wiretap Act, which provides in relevant
part that it is not unlawful for:
an investigative officer, a law enforcement officer or employees of
the Department of Corrections for State correctional facilities to
intercept, record, monitor or divulge any telephone calls from or
to an inmate in a facility [provided that delineated conditions are
met].
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18 Pa.C.S.A. § 5704(13). Appellant, as a state inmate, was given an
automated warning that any inmate telephone call could be monitored or
recorded. Accordingly, we reject Appellant’s second issue. See id.
We address Appellant’s third and fourth issues together because they
are related. Appellant claims the Commonwealth violated Brady, supra, by
failing to alert him to material untruths in the police statement given by
“proposed” Commonwealth witness Kelsey Bergman (Bergman), and to give
him advance notice of her testimony.9 See Appellant’s Brief at 31-34; 37-38.
Appellant argues that this information would have assisted his defense theory
and provided him an opportunity to undermine the credibility of Griffith’s
testimony. Id. at 33-34. Appellant further contends that the Commonwealth
committed a second Brady violation concerning Ashley Brubaker (Brubaker),
who testified as a Commonwealth witness and spoke with police on the night
of the murder. Id. at 34, 37-38.
Appellant’s claim presents a question of law; our standard of review is
de novo and our scope of review is plenary. Commonwealth v. Mullins, 918
A.2d 82, 84 (Pa. 2007). To prove a Brady violation, a defendant must show:
“(1) the prosecutor has suppressed evidence; (2) the evidence, whether
exculpatory or impeaching, is helpful to the defendant; and (3) the
suppression prejudiced the defendant.” Commonwealth v. Tharp, 101 A.3d
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9 Neither party called Bergman as a witness at trial.
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736, 747 (Pa. 2014) (citation omitted). “Conversely, the mere possibility that
an item of undisclosed information might have helped the defense, or might
have affected the outcome of the trial does not establish materiality in the
constitutional sense.” Commonwealth v. Dennis, 17 A.3d 297, 308 (Pa.
2011) (citation omitted). The burden of proof is on the defendant to
demonstrate that the Commonwealth withheld or suppressed material
evidence. Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009); see
also id. (stating that the “prosecutor is not required to deliver his entire file
to defense counsel, but only to disclose evidence favorable to the accused
that, if suppressed, would deprive the defendant of a fair trial”) (citation
omitted).
Appellant’s claims are unavailing. Concerning Bergman, the
Commonwealth never called her to testify. Appellant had an opportunity to
present her testimony; however, he declined to do so. Moreover, Appellant
fails to identify Bergman’s alleged “untruths,” and advances only a general
claim of a Brady violation. See Commonwealth v. Tielsch, 934 A.2d 81,
93 (Pa. Super. 2007) (holding that undeveloped claims will not be considered
on appeal). Finally, the record supports the Commonwealth’s response that
it: (1) provided Appellant with Bergman’s police statement during discovery;
and (2) spoke with Appellant’s defense counsel prior to trial and pointed out
the discrepancies in Bergman’s statements. See Response to Post-Sentence
Motion, 8/27/19, at 10; see also id. at 11 (asserting that the inconsistencies
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in Bergman’s statements had nothing to do with Appellant because she was
not present at the Decedent’s residence when the murder occurred).
Regarding Appellant’s second Brady claim implicating Brubaker,
Appellant raises this claim for the first time on appeal; accordingly, it is
waived. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the
first time on appeal); see also Commonwealth v. Melendez-Rodriguez,
856 A.2d 1278, 1288 (Pa. Super. 2004) (en banc) (“[a] party cannot rectify
the failure to preserve an issue by proffering it in response to a Rule 1925(b)
order.”) (citation omitted). Additionally, Appellant’s counsel did not object to
the introduction of Brubaker’s testimony or assert any unfair surprise, even
after an offer of proof by the prosecutor. See N.T., 1/29/19, at 138-39.10 We
discern no record support for Appellant’s claim that the Commonwealth
possessed materials documenting Brubaker’s statements that were not
provided in discovery.
Finally, in connection with Appellant’s fourth issue, he merely asserts,
in two sentences, that the Commonwealth committed a third Brady violation
by failing to provide the defense advance notice of the testimony of Agent
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10 The record reflects that there was no formal police interview of Brubaker
until the time of trial, on January 29, 2019, and defense counsel thoroughly
cross-examined Brubaker about her statements. See N.T., 1/29/19, at 138-
39, 156-63.
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Thomas Moore (Agent Moore) of the Attorney General’s Office.11 Appellant’s
Brief at 38. However, because Appellant has failed to develop this claim in
any meaningful fashion, we are precluded from considering it. See Tielsch,
supra; see also Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super.
2014) (stating that mere issue spotting without analysis or legal citation to
support an assertion precludes appellate review of a matter).12 Appellant’s
third and fourth issues do not merit relief.
In his fifth issue, Appellant asserts that the trial court committed
reversible error by precluding his counsel from cross-examining
Commonwealth witness Travis Denny (Denny), who was Appellant’s former
cellmate.13 See Appellant’s Brief at 38-41. Specifically, Appellant argues that
he was deprived of his right to confrontation concerning a certain letter that
Denny allegedly had “knowledge of”;14 the letter purportedly expressed
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11The Commonwealth presented Agent Moore as an expert witness regarding
the meaning of certain phrases Appellant used in telephone calls he placed
while incarcerated.
12 Even if Appellant had properly developed this claim, we would have
concluded that it lacks merit for the reasons set forth in the trial court’s
opinion. See Opinion and Order, 12/2/19, at 19-20 (stating that Agent
Moore’s expert testimony was not a surprise to the defense where the
Commonwealth filed of record a document that outlined his testimony).
13Denny testified that he was incarcerated with Appellant in 2015, when
Appellant confessed to him that he shot someone named Steve and stole his
money.
14 Denny’s girlfriend authored this letter and mailed it to Denny’s attorney.
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Denny’s request for a reduced sentence in exchange for his testimony at
Appellant’s trial. See id. at 38, 40.
The standard of review applicable to this question of law is de novo.
Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa. Super. 2017). The trial
court has once again capably addressed Appellant’s issue, citing applicable
law, and determining that Appellant was not deprived of his right to confront
Denny where:
(1) Appellant’s counsel, in fact, attacked Denny’s credibility and
motive for testifying against Appellant;
(2) Denny did not author the letter; and
(3) The trial court did not bar Appellant from seeking to admit the
letter via the testimony of its author.
See Opinion and Order, 9/20/19, at 23-25. The trial court’s reasoning is
supported by the record and law, and we agree with its determination; thus,
we affirm on this basis. See id.
In his sixth issue, Appellant contends that the trial court erred in denying
his request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154
(1978). Appellant argues that he should have been permitted to “explore the
issues which resulted in [Officer] Starr’s termination” and conviction, where
Officer Starr was the affiant of the affidavit of probable cause for the Samsung
cellphone belonging to co-defendant Green.15 Appellant’s Brief at 41-43.
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15 Appellant joined in Green’s omnibus pre-trial motion for a Franks hearing.
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The Pennsylvania Supreme Court summarized the United States
Supreme Court’s holding as follows:
[Franks] addressed whether a defendant has the right, under the
Fourth and Fourteenth Amendments, to challenge the truthfulness
of factual averments in an affidavit of probable cause. The Court
held where the defendant makes a substantial preliminary
showing the affiant knowingly and intentionally, or with reckless
disregard for the truth, included a false statement in the affidavit,
the Fourth Amendment requires a hearing be held at the
defendant’s request. The Court emphasized the defendant’s
attack on the affidavit must be “more than conclusory and must
be supported by more than a mere desire to cross-examine”; the
defendant must allege deliberate falsehood or reckless disregard
for the truth, accompanied by an offer of proof. If the defendant
meets these requirements, but the remainder of the affidavit’s
content is still sufficient to establish probable cause, no hearing is
required. If the affidavit’s remaining content is insufficient, a
hearing is held, at which the defendant must establish, by a
preponderance of the evidence, the allegation of perjury or
reckless disregard. If he meets this burden, the affidavit’s false
material is disregarded; if its remaining content is insufficient to
establish probable cause, the search warrant is voided, and the
fruits thereof are excluded.
Commonwealth v. James, 69 A.3d 180, 188 (Pa. 2013) (citations omitted).
Essentially, Appellant claims that because Officer Starr committed fraud
in an unrelated matter, he may have committed fraud in Appellant’s case.
This claim is unavailing. The Samsung phone belonged to Green, not
Appellant, and Appellant asserted no possessory interest in it. Appellant never
requested a Franks hearing relative to the probable cause affidavit.
Moreover, Appellant’s claim is undeveloped; he fails to reference any
statements in the affidavit he contends to be purportedly false. See James,
supra (emphasizing that a defendant’s Franks attack on an affidavit must be
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more than conclusory, and that the defendant must put forth a “substantial”
preliminary showing that the affidavit contains falsehoods); Commonwealth
v. Iannaccio, 480 A.2d 966, 969 n.1 (Pa. 1984) (holding that bald,
conclusory statements are insufficient to rise to the level of a substantial
preliminary showing under Franks).
In his seventh issue, Appellant argues that the trial court erred in
denying his recusal motion. See Appellant’s Brief at 45-52. Appellant
contends that the family relationship between Griffith and Prothonotary Patton
created a conflict of interest implicating the Blair County District Attorney’s
Office and the entire bench of Blair County. See id. According to Appellant,
Patton, who was not a witness at Appellant’s trial, had a “vested interest” in
the outcome. Id.
We review a claim challenging the denial of a recusal motion for an
abuse of discretion, and our review is “exceptionally deferential.” In re L.V.,
209 A.3d 399, 415 (Pa. Super. 2019).
We recognize that our trial judges are honorable, fair and
competent, and although we employ an abuse of discretion
standard, we do so recognizing that the judge himself is best
qualified to gauge his ability to preside impartially. A trial judge
should grant the motion to recuse only if a doubt exists as to his
or her ability to preside impartially or if impartiality can be
reasonably questioned. In order to prevail on a motion for
recusal, the party seeking recusal is required to produce evidence
establishing bias, prejudice or unfairness which raises a
substantial doubt as to the jurist’s ability to preside impartially.
Id. (citations omitted).
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We also review the denial of a motion to disqualify a prosecutor for an
abuse of discretion. Commonwealth v. Sims, 799 A.2d 853, 856 (Pa. Super.
2002). A district attorney should be disqualified where “an actual conflict of
interest affecting the prosecutor exists in the case.” Commonwealth v.
Eskridge, 604 A.2d 700, 702 (Pa. 1992). However, a mere allegation or
appearance of impropriety or animosity is insufficient to establish an actual
conflict of interest. Sims, 799 A.2d at 857.
In support of his claim, Appellant primarily relies on two decisions,
Eskridge, supra, and Comm. Ex rel. Amor v. Amor, 398 A.2d 173 (Pa.
Super. 1979) (en banc). See Appellant’s Brief at 49-51. However, both cases
are readily distinguishable. See Eskridge, 604 A.2d at 701-02 (holding that
an actual conflict barring prosecution existed where the county district
attorney’s law firm represented a car accident victim in a personal injury
action previously instituted against the defendant, and the accident victim
would be a witness in the same defendant’s separate criminal case); Amor,
398 A.2d at 174 (holding that recusal of the entire county bench was required
where a woman who was remarried to a common pleas judge of that county
would have to appear before one of her husband’s judicial colleagues in a child
support action initiated by the woman’s ex-husband).
There is no legal authority for the proposition that when a biological
relative of a county row officer is called as a witness, the district attorney and
entire bench of that county must remove themselves from the case. See,
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e.g., Commonwealth v. Lutes, 793 A.2d 949, 956-57 (Pa. Super. 2002)
(holding that the trial court did not err in denying a motion to disqualify the
district attorney’s office and no conflict of interest existed where the victim
was a county commissioner).
Furthermore, during jury selection, the trial court informed the jury of
the family relationship between Griffith and Prothonotary Patton. N.T.,
1/7/19, at 69-70. The court inquired as to whether this fact would have any
impact on their ability to be fair and impartial. Id. No juror responded that
it would, and Appellant’s counsel made no further inquiries. Id. The trial
court has also considered testimony from Blair County First Deputy
Prothonotary Vicky Claar about any conflict of interest. Ms. Claar stated that
steps were taken to insulate Prothonotary Patton from any involvement with
Appellant’s case and any issues related to Griffith, and averred that no conflict
of interest existed. See N.T., 8/7/18, at 27-34. Moreover, Appellant concedes
that he “is not challenging any personal impropriety on the part of the [trial]
court or the District Attorney’s Office”; Appellant’s Brief at 48. Upon review,
we discern no evidence to support a finding of bias, prejudice or unfairness.
See, e.g., Opinion and Order, 9/20/19, at 13 (explaining that the trial court
had no social and minimal professional contacts with Prothonotary Patton).
Finally, to the extent Appellant emphasizes the plea deal that the District
Attorney’s Office offered Griffith in exchange for her testimony at Appellant’s
trial, see Appellant’s Brief at 46-48, this is a routine occurrence and function
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of the prosecution’s authority, and there is no evidence indicating that the
prosecution was partial. Accordingly, Appellant’s seventh issue does not merit
relief.
In his eighth issue, Appellant contends that the trial court abused its
discretion in denying his motion for a continuance filed four days prior to jury
selection. See Appellant’s Brief at 53-55. According to Appellant, his defense
counsel:
needed further investigation of various matters which was
exemplified by what occurred at the trial with respect to the
introduction of testimony of Ashley Brubaker, the purported false
statements given by Kelsey Bergman[,] and the previous
undisclosed testimony of the expert witness, Agent Thomas
Moore.
Id. at 55.
We recognize:
Appellate review of a trial court’s continuance decision is
deferential. The grant or denial of a motion for a continuance is
within the sound discretion of the trial court and will be reversed
only upon a showing of an abuse of discretion. … Discretion is
abused when the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, as shown by the evidence or the record.
Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa. 2014) (citation
modified). Trial judges “necessarily require a great deal of latitude in
scheduling trials. Not the least of their problems is that of assembling the
witnesses, lawyers, and jurors at the same place at the same time, and this
burden counsels against continuances except for compelling reasons.”
Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013) (citation
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omitted); see also Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa.
Super. 2014) (stating that an appellant “must be able to show specifically in
what manner he was unable to prepare for his defense or how he would have
prepared differently had he been given more time. We will not reverse a
denial of a motion for continuance in the absence of prejudice.”). To
determine whether a trial court erred in denying a continuance request, “we
must examine the circumstances present in the case, especially the reasons
presented to the trial court for requesting the continuance.” Sandusky, 77
A.3d at 672.
The case against Appellant was initiated in July 2017. Appellant filed
the motion for continuance approximately 1½ years later, and just four days
prior to jury selection on January 7, 2019. The record shows that the trial
court had: (1) considered numerous pre-trial motions filed by Appellant; (2)
previously granted several other continuances requested by Appellant; (3)
ensured that discovery was completed; and (4) appointed an expert witness
and an investigator to assist Appellant’s defense. Additionally, trial had
previously been delayed after Appellant fired his first counsel and chose to
proceed pro se, but eventually had new counsel appointed to represent him.
Further, Appellant’s defense counsel was informed in October 2018 that
the case would proceed to trial in late January 2019. See N.T., 10/9/18, at
43-44. Notably, on November 27, 2018, the following exchange occurred
between the trial court and defense counsel:
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BY THE COURT: … I can resolve [any outstanding matters] for
this matter to go to trial January 28th[, 2019]. It is two full
months. …
[Defense counsel]: I am okay with January 28th.
N.T., 11/27/18, at 113 (emphasis added).
The record supports the trial court’s statement that there “was no
presentation to the court, nor did it appear to the court prior to trial, that
counsel for [Appellant] felt he was unprepared for trial.” Opinion and Order,
9/20/19, at 34. Finally, we discern no record support for Appellant’s claim
that he was prejudiced by the court’s refusal to afford him yet another
continuance, especially one requested so close to trial. See, e.g., Antidormi,
84 A.3d at 746 (holding that the trial court properly denied the defendant’s
fifth request for a continuance, made on the first day of trial, which was based
upon nothing more than a bald allegation by defense counsel of insufficient
time to prepare). Accordingly, the trial court acted within its discretion in
denying Appellant’s request for a continuance.
In his ninth and final issue, Appellant contends that the trial court
deprived him of a fair trial by permitting the Commonwealth to introduce the
CellHawk historical cell site location information (CSLI) for his phone without
first obtaining a search warrant pursuant to Carpenter, 138 S. Ct. 2206. See
Appellant’s Brief at 25-26. The United States Supreme Court held that, absent
a specific exception to the warrant requirement, law enforcement must first
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obtain a search warrant supported by probable cause in order to obtain CSLI
from wireless service providers. Carpenter, 138 S. Ct. at 2221.
In reviewing Appellant’s claim:
our standard of review in addressing a challenge to a trial court’s
denial of a suppression motion is limited to determining whether
the factual findings are supported by the record and whether the
legal conclusions drawn from those facts are correct. We are
bound by the suppression court’s factual findings so long as they
are supported by the record; our standard of review on questions
of law is de novo. Where, as here, the defendant is appealing the
ruling of the suppression court, we may consider only the evidence
of the Commonwealth and so much of the evidence for the defense
as remains uncontradicted.
Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations
omitted).
The trial court concluded that Appellant waived this issue because he
failed to timely raise a claim implicating Carpenter prior to his post-sentence
motion. See Opinion and Order, 9/20/19, at 25-32; see also id. at 32-33
(opining that even if the claim was preserved, it lacks merit because any error
in admitting the CSLI evidence was harmless given the totality of the other
overwhelming evidence of Appellant’s guilt). We agree, as the rationale is
again supported by the record and law. Therefore, we affirm Appellant’s final
issue on this basis. See id. at 25-33.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/11/2020
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