Com. v. Harper, R.

J-A25017-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ROBERT UGEAN HARPER : No. 243 MDA 2020
Appeal from the Order Entered February 6, 2020
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0001483-2019
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED MARCH 01, 2021
Appellant, the Commonwealth of Pennsylvania (the Commonwealth),
appeals from the order entered on February 6, 2020, barring the introduction
of unauthenticated text messages and evidence of prior bad acts in a criminal
prosecution against Robert Ugean Harper (Harper) for charges related to a
drug delivery involving death.1 The Commonwealth certified that the order
will terminate or substantially handicap the prosecution.2 Upon review, we
affirm.
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1 18 Pa.C.S.A. §§ 2506(a) (drug delivery involving death); 35 P.S.
780-113(a)(30) (possession with intent to deliver - cocaine); 35 P.S.
780-113(a)(30) (possession with intent to deliver - heroin).
2 See Pa.R.A.P. 311(d) (“In a criminal case, under the circumstances provided
by law, the Commonwealth may take an appeal as of right from an order that
does not end the entire case where the Commonwealth certifies in the notice
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We briefly summarize the facts and procedural history of this case as
follows. On March 7, 2017, Clinton Arnold died from a heroin overdose. On
May 13, 2019, the Commonwealth charged Harper with the aforementioned
charges in connection with the death. Relevant herein, during the course of
the investigation, police obtained the records for the decedent’s cellular
telephone.3 Those records revealed a series of text messages to and from a
particular cellular telephone number,4 potentially related to a purported drug
transaction the day before Clinton’s death. On January 30, 2020, Harper filed
a motion in limine seeking to “prohibit[] the Commonwealth from introducing
any evidence at trial regarding text messages to or from [the transaction
telephone], including the content of those messages, as the Commonwealth
[could not] authenticate [that Harper authored or received] those texts [as]
required by Pa.R.E. 901(a).” Motion in Limine, 1/30/2020, at ¶1. Harper also
requested that the trial court preclude the Commonwealth from presenting
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of appeal that the order will terminate or substantially handicap the
prosecution.”)
3 Throughout this memorandum, we shall refer to the decedent’s cellular
telephone as “the decedent’s telephone” or “the decedent’s cellular
telephone.”
4 Throughout this memorandum, we shall refer to the cellular telephone that
exchanged text messages with the decedent’s telephone as “the transaction
telephone” or “the transaction cellular telephone.”
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evidence of Harper’s prior narcotics conviction,5 arguing such evidence did not
qualify as prior bad act evidence admissible under Pa.R.E. 404(b). Id. at ¶7.
The trial court held a hearing on the motion in limine on February 3,
2020. At that hearing, the Commonwealth entered into evidence the notes of
testimony from the preliminary hearing before Jonathon R. Birbeck,
Magisterial District Judge of Cumberland County, held on May 29, 2019.6 The
Commonwealth did not present additional evidence. A brief summary of the
pertinent facts, the parties’ arguments, and trial court’s rulings on the issues
is warranted.
At the evidentiary hearing on February 3, 2020, the Commonwealth
offered the following evidence to establish that Harper authored or received
certain text messages exchanged between the transaction telephone number
and the decedent’s telephone. First, the subscriber information for the
transaction telephone listed "Billy Bob" as the subscriber. Next, the
investigating officer identified Harper, by voice, as the individual who engaged
in two telephone calls to a prison inmate from the transaction telephone,
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5 Harper was convicted of possession with intent to deliver heroin in a prior
matter, wherein police set up a controlled narcotics purchase. Clinton Arnold,
the decedent herein, served as a confidential informant (CI) for the police in
that matter.
6 The Commonwealth presented the testimony of two witnesses at the
preliminary hearing – Michael Hamilton, the last person to see the victim alive
(and who subsequently discovered his body) and the investigating officer,
Detective Matthew M. Johnston.
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following Arnold’s death. The Commonwealth also argued GPS and cellular
tower information showed that the transaction telephone subsequently
travelled outside the Commonwealth and aligned with Harper’s purported
movement. The Commonwealth further argued that, in the prior criminal
matter noted above,7 police arrested Harper, he posted bond, and he
subsequently communicated by text message with his bondsman via the
transaction cellular telephone. N.T., 3/3/2020, at 12-13. The Commonwealth
argued that the text messages with the bondsman authenticated the text
messages with the decedent. Id. at 13.
Ultimately, regarding authentication of the subject text messages, the
trial court stated:
[it was] satisfied that the [transaction cellular telephone]
belonged to [Harper]. [The trial court was further] satisfied that
[Harper], through circumstantial evidence, can be connected to
the [tele]phone at times before and after March 6, 2017. But,
based upon [established precedent, the trial court could not] find
that there [was] sufficient [authenticating] evidence that the text
messages [relevant to the instant case that were] received [by]
or sent from [the transaction telephone] were sent or received by
[Harper.]
N.T., 3/3/2020, at 10. Hence, the trial court concluded that the
Commonwealth failed to present any authentication evidence showing Harper
authored or received the text messages allegedly exchanged with the
decedent. Id. at 14-15.
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7 This aspect of the Commonwealth’s argument intertwines with its contention
that the prior conviction should be admitted under the prior bad act exception
to Rule 404(b).
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In its subsequent Rule 1925(a) opinion, the trial court further clarified:
Here, the Commonwealth rested on the testimony and text
messages presented at the preliminary hearing. After thoroughly
examining both the transcript and the packet of text messages,
[the trial court was] satisfied that the Commonwealth could not
corroborate the identity of the sender/receiver associated with the
[transaction telephone number].
The transcript of the preliminary hearing is 80 pages in length.
Within those pages, [the trial court] did not find one modicum of
evidence tending to corroborate that [Harper] sent or received the
supposed drug-related text messages [from] March 6th and 7th.
The Commonwealth [] offered the testimony of Mr. Hamilton, in
an attempt to connect [Harper] with those texts. Mr. Hamilton
claimed that he and the decedent planned to purchase crack
cocaine [on the dates in question]. The decedent’s telephone had
several text messages to and from the [transaction telephone].
Mr. Hamilton drove the decedent to pick up the crack [cocaine].
He parked at a car wash [near Harper’s residence at the time] at
which point the decedent exited the vehicle. [Mr. Hamilton] did
not see the decedent go into any particular residence. The
decedent returned twenty (20) minutes later. Mr. Hamilton did
not see the decedent with any crack [cocaine] or heroin.
Furthermore, [Mr. Hamilton] did not see [Harper later] that night.
* * *
The Commonwealth did not even present evidence that [Harper]
owned the [transaction cellular telephone]. At most, it was able
to show that [Harper] used the [transaction telephone] at various
points in time after the date in question. Proof of subsequent use
[was] not sufficient to establish that [Harper] was an active
correspondent in the particular drug-related text messages.
Nor was the Commonwealth able to satisfy the authentication
requirements under the Rules of Evidence. It did not offer
first-hand corroborating testimony from either the author or
sender. Nor did its circumstantial evidence connecting the
[transaction telephone number] to [Harper] have any distinctive
characteristics. The only evidence was that [Harper] lived [near
the alleged drug transaction] and that he used the [transaction
telephone] at various times after the dates in question. There was
no evidence specifying the author/sender of the texts[], nor any
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other aspects of the communications that signify them to be from
[Harper]. Ultimately, [the trial court] found that the
Commonwealth failed to establish, either by direct or
circumstantial evidence, that [Harper] was the author or recipient
of the drug related texts.
Trial Court Opinion, 5/3/2020, at 2-5 (footnotes and citations omitted;
emphasis in original).
Regarding Harper’s prior narcotics conviction, the Commonwealth
sought to present the prior bad act evidence pursuant to Pa.R.E. 404(b). The
Commonwealth argued:
The evidence [] would be limited to establish the [] relationship
between [Harper] and Clinton Arnold. The evidence would be
from Trooper Douglas Rost, who was the affiant [in] the
underlying past criminal case. Trooper Rost would just testify that
Clinton Arnold acted as a CI and did a controlled purchase of
heroin from [Harper.]
N.T., 3/3/2020, at 12.
On this issue, the trial court determined:
The fact that [Harper] was arrested for a prior drug delivery []
doesn’t [] offer anything in this case other than the fact that he
knew the decedent.
* * *
The fact that [the decedent] bought drugs from [Harper] as a
confidential informant and that [Harper] was charged with that
before this delivery took place doesn’t offer anything. Anything
that it does offer is way more prejudicial, unfairly prejudicial, than
probative. [I]t doesn’t shed light on whether or not [Harper]
delivered the drugs in question on the night in question, the fact
that he delivered them some other time.
Id. at 13-14.
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The Commonwealth objected to both rulings, arguing the decisions
substantially handicapped the prosecution. Moreover, the Commonwealth
indicated its intent to appeal both rulings. Id. at 10-14.
On February 6, 2020, “for the reasons stated on the record[,]” the trial
court entered an order “preclud[ing] the admission of text messages to and
from the [transaction telephone number.]” Trial Court Order, 2/6/2020, at 1.
The order, however, did not address the trial court’s decision to preclude
Harper’s prior conviction under Rule 404(b).8 This timely appeal resulted.9
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8 Despite the trial court’s failure to reference the Rule 404(b) issue in the
order denying relief or in its subsequent opinion pursuant to Pa.R.A.P.
1925(a), the trial court squarely addressed, and ruled on, the issue at the
hearing on Harper’s motion in limine as detailed above. The Commonwealth
certified that the ruling on the Rule 404(b) issue substantially hampered the
prosecution. While a trial court opinion on the issue would have been
preferred and beneficial to appellate review, because the trial court’s reasons
appear on the record our review is not hampered. See Commonwealth v.
Hood, 872 A.2d 175, 178 (Pa. Super. 2005), citing Pa.R.A.P. 1925(a) (“The
Rules of Appellate Procedure make the filing of a [Rule] 1925(a) opinion
mandatory and the Rule 1925(a) opinion must set forth the reasons for the
rulings of the trial judge or must specify in writing the place in the record
where the reasons may be found.”); see also Commonwealth v. Widger,--
A.3d --, 2020 PA Super 192, at *5 n.5 (Pa. Super. August 13, 2020)
(“Although we do not approve of or sanction the trial court's failure to comply
with its obligations under Rule 1925(a), the lack of a Rule 1925(a) opinion
does not preclude this Court's review of the merits of Appellant's issues based
upon our review of the record, including the notes of testimony[.]”).
9 On February 7, 2020, the Commonwealth filed a notice of appeal with Rule
311(d) certification. The trial court did not order the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
May 13, 2020.
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On appeal, the Commonwealth presents the following issues10 for our
review:
I. Whether the [trial] court abused its discretion in
granting [Harper’s] motion in limine, which precluded
the admission at trial of text communications after
finding the Commonwealth failed to authenticate the
communications as being authored and/or received by
[Harper]?
II. Whether the [trial] court abused its discretion in
denying[,] as irrelevant and also more prejudicial than
probative, the admission at trial [of] the
Commonwealth's proffered Rule 404(b) evidence of
prior drug sales by [Harper] to [the] decedent?
Commonwealth’s Brief at 4.
Both of the Commonwealth’s issues challenge trial court evidentiary
rulings. We adhere to the following standard:
The admissibility of evidence is a matter within the sound
discretion of the trial court and will be reversed only where there
is a clear abuse of discretion. Our standard of review of a
challenge to an evidentiary ruling is therefore limited. Abuse of
discretion is not merely an error of judgment [but is established
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.
Commonwealth v. Williams, -- A.3d --, 2020 WL 5950934 at *3 (Pa. Super.
Oct. 8, 2020) (citation omitted).
In the first issue we examine, the Commonwealth argues that “the trial
court's decision to exclude [] text messages based upon lack of authentication
focused exclusively on proof of authorship and to a [much higher] standard []
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10 We have reordered the issues for clarity and ease of discussion.
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than [] required by the Rules of Evidence” and established case law.
Commonwealth’s Brief at 21. The Commonwealth asserts that its presentation
of the following evidence was sufficient to authenticate the subject text
messages:
 [The decedent] and Harper were known associates and, in
particular, Harper was a law enforcement confirmed source of
heroin for [the decedent].
 Although undoubtedly a fake name, the subscriber information
for [the transaction telephone number] was "Billy Bob" and
Billy can be a nickname for the given name Robert.
 Hamilton drove [the decedent] to a car wash located close to
Harper's residence [] and, although Hamilton remained in the
vehicle and did not see the drugs immediately, he testified the
only other place the pair went before returning to his residence
to ingest cocaine was a gas station, where [the decedent] went
inside for "a few minutes" to purchase pipes to smoke.
 The communications between [the decedent] and [the
transaction telephone number] demonstrate a familiarity
between the communicating parties.
 In the months of March and April 2017, an inmate in the
Cumberland County Prison made calls to [the transaction
telephone number] and the person who answered those calls
and communicated with the inmate is Harper - identified by
both voice and context of the discussions in the calls and
verified with independent information (i.e. court dockets,
orders).
 GPS and cell tower information show [the transaction
telephone] traveled between Carlisle[, Pennsylvania] and
Elizabeth City, [North Carolina] during the period Harper was
out on bond/on the run from March through November 2017
and Harper told Detective Johnston that's where he was during
that time (albeit denying returning to Carlisle for the drug deal
at issue) with his family.
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 On July 15, 2017, James Fabie received a text message from
[the transaction telephone] that identified the writer as "Robert
Harper"; the message explained the reason for Harper
absconding. Mr. Fabie was Harper's bondsman and the content
of the message is consistent with events and people in Harper's
life.
Id. at 21-23 (record citations omitted).
This Court has previously determined:
Pursuant to Pennsylvania Rule of Evidence 901, authentication is
required prior to admission of evidence. The proponent of the
evidence must introduce sufficient evidence that the matter is
what it purports to be. See Pa.R.E. 901(a). Testimony of a
witness with personal knowledge that a matter is what it is claimed
to be can be sufficient. See Pa.R.E. 901(b)(1). Evidence that
cannot be authenticated by a knowledgeable person, pursuant to
subsection (b)(1), may be authenticated by other parts of
subsection (b), including circumstantial evidence pursuant to
subsection (b)(4). See Pa.R.E. 901(b)(4).
Commonwealth v. Talley, 236 A.3d 42, 59 (Pa. Super. 2020).
This Court has examined the law pertaining to the authenticity of text
messages:
The admissibility of electronic communications is to be evaluated
on a case-by-case basis as any other document to determine
whether or not there has been an adequate foundational showing
of their relevance and authenticity. In the Interest of F.P., 878
A.2d 91, 96 (Pa. Super. 2005).
In Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), as
a matter of first impression, our Court examined: 1) the law
pertaining to authentication of text messages and, 2) whether text
messages constitute hearsay subject to exception. The Koch
Court determined:
Pennsylvania Rule of Evidence 901 provides that
authentication is required prior to admission of evidence.
The proponent of the evidence must introduce sufficient
evidence that the matter is what it purports to be. Pa.R.E.
901(a). Testimony of a witness with personal knowledge
that a matter is what it is claimed to be can be sufficient.
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Pa.R.E. 901(b)(1)[11]; see also Pa.R.E. 901(b)(1) cmt.,
citing Commonwealth v. Hudson, 414 A.2d 1381 (Pa.
1980). Furthermore, electronic writings typically show their
source, so they can be authenticated by contents in the
same way that a communication by postal mail can be
authenticated. Circumstantial evidence may suffice where
the circumstances support a finding that the writing is
genuine. In the Interest of F.P., a Minor, 878 A.2d 91(Pa. Super. 2005).
***
Importantly, in In the Interest of F.P., a Minor, supra,
we rejected the argument that e-mails or text messages are
inherently unreliable due to their relative anonymity and the
difficulty in connecting them to their author. Id. at 95. We
reasoned that the same uncertainties existed with written
documents: “A signature can be forged; a letter can be
typed on another's typewriter; distinct letterhead stationary
can be copied or stolen.” Id. Concluding that electronic
communications, such as e-mail and instant messages, can
be authenticated within the framework of Pa.R.E. 901 and
our case law, we declined to create new rules governing the
admissibility of such evidence. We held that such evidence
is to be evaluated on a case-by-case basis as any other
document to determine whether there has been an
adequate foundational showing of its relevance and
authenticity.
***
[...E]-mails and text messages are documents and subject
to the same requirements for authenticity as non-electronic
documents generally. A document may be authenticated by
direct proof, such as the testimony of a witness who saw the
author sign the document, acknowledgment of execution by
the signer, admission of authenticity by an adverse party,
or proof that the document or its signature is in the
purported author's handwriting. See McCormick on
Evidence, §§ 219–221 (E. Cleary 2d Ed. 1972). A
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11We note that effective October 1, 2020, a new provision of the Pennsylvania
Rules of Evidence, Pa.R.E. 901(b)(11) (governing authentication or
identification of digital evidence) took effect. See Talley, 236 A.3d at 59
n.12. This provision is not applicable instantly.
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document also may be authenticated by circumstantial
evidence, a practice which is “uniformly recognized as
permissible.” Commonwealth v. Brooks, 508 A.2d 316(Pa. Super. 1986) (citing, e.g., Commonwealth v. Nolly,
138 A. 836 (Pa. 1927) (letters authenticated by contents:
facts known only to sender and recipient); Commonwealth
v. Bassi, 130 A. 311 (Pa. 1925) (unsigned letter
authenticated by defendant's nickname written on it, along
with contents indicating knowledge of matters familiar to
both defendant-sender and witness-recipient); and
McFarland v. McFarland, 107 A.2d 615, 616 (Pa. Super.
1954)).
As these cases illustrate, the difficulty that frequently arises
in e-mail and text message cases is establishing authorship.
Often more than one person uses an e-mail address and
accounts can be accessed without permission. In the
majority of courts to have considered the question, the mere
fact that an e-mail bears a particular e-mail address is
inadequate to authenticate the identity of the author;
typically, courts demand additional evidence.
Text messages are somewhat different in that they are
intrinsic to the cell[ular] [tele]phones in which they are
stored. While e-mails and instant messages can be sent
and received from any computer or smart phone, text
messages are sent from the cellular phone bearing the
telephone number identified in the text message and
received on a phone associated with the number to which
they are transmitted. The identifying information is
contained in the text message on the cellular telephone.
However, as with e-mail accounts, cellular telephones are
not always exclusively used by the person to whom the
[tele]phone number is assigned.
Commonwealth v. Koch, 39 A.3d 996, 1002–1005 (Pa. Super.
2011).
Moreover, this Court has recognized:
Pennsylvania Rule of Evidence 801 defines hearsay as
follows:
(a) Statement. A “statement” is (1) an oral or written
assertion or (2) nonverbal conduct of a person, if it is
intended by the person as an assertion.
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(b) Declarant. A “declarant” is a person who makes a
statement.
(c) Hearsay. “Hearsay” is a statement, other than one made
by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter
asserted.
Pa.R.E. 801. Additionally, Pa.R.E. 802 provides: “Hearsay is not
admissible except as provided by these rules, by other rules
prescribed by the Pennsylvania Supreme Court, or by statute.”
Pa.R.E. 802.
Arguably, [ ] text messages could [be] admitted under the
exception to the Pennsylvania hearsay rule for admissions of a
party opponent. See Pa.R.E. 803(25). However, [in order to
constitute] party admissions [ ] the Commonwealth [must] prove
[ ] author[ship].
Id. at 1006.
Williams, 2020 WL 5950934 at * 4-6.
In Koch, citing decisions from other jurisdictions and various
Pennsylvania Rules of Court, we noted two general ways to authenticate text
messages. First, as briefly mentioned above, “by direct proof,” i.e.,
“testimony [] from persons who sent or received the text messages.” Koch,
39 A.3d at 1004-1005. Second, the Koch Court recognized that
authentication of text messages may be accomplished by presenting evidence
of “contextual clues in the [] text messages themselves tending to reveal the
identity of the sender.” Id. at 1005; see also id. at 1004, citing State v.
Thompson, 777 N.W.2d 617, 624–627 (N.D. 2010) (wherein the Supreme
Court of North Dakota conducted extensive review of other jurisdictions'
authenticity requirements for electronic communications to conclude there
must be evidence that e-mails, instant messages, or text messages
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themselves contain factual information or references unique to the parties
involved to properly authenticate).
Moreover, following Koch, this Court determined:
The proponent of digital evidence is not required to prove that no
one else could be the author. Rather, the proponent must produce
sufficient evidence to support a finding that a particular person
or entity was the author. See Pa.R.E. 901(a).
Direct evidence under Pa.R.E. 901(b)(11)(A) may also include an
admission by a party-opponent.
Circumstantial evidence of identifying content under Pa.R.E.
901(b)(11)(B)(i) may include self-identification or other
distinctive characteristics, including a display of knowledge only
possessed by the author. Circumstantial evidence of content may
be sufficient to connect the digital evidence to its author.
Circumstantial evidence of ownership, possession, control,
or access to a device or account alone is insufficient for
authentication of authorship of digital evidence under
Pa.R.E. 901(b)(11)(B)(ii). See, e.g., Commonwealth v.
Mangel, 181 A.3d 1154, 1163 (Pa. Super. 2018) (social media
account bearing defendant's name, hometown, and high school
was insufficient to authenticate the online and mobile device chat
messages as having been authored by defendant). However, this
evidence is probative in combination with other evidence of the
author's identity.
Expert testimony may also be used for authentication purposes.
See, e.g., Commonwealth v. Manivannan, 186 A.3d 472 (Pa.
Super. 2018).
Talley, 236 A.3d at 60.
Here, as the Commonwealth concedes, there was no direct proof that
Harper authored or received the text messages sent to and from the
transaction telephone number. In examining the authentication evidence the
Commonwealth presented, as set forth above, we conclude that the
Commonwealth failed to establish that Harper either authored or received the
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proffered text messages. While Billy or Bob could certainly be a nickname
for Robert, as the Commonwealth suggests, the Commonwealth simply did
not present any evidence linking Harper to "Billy Bob." Furthermore, although
the subsequent prison calls, GPS data and cellular telephone records, and text
message to Harper’s bail bondsman circumstantially show that Harper may
have had access to the transaction telephone at those times, there was no
evidence, direct or circumstantial, Harper authored or received the text
messages at issue in the instant case.12 As this Court has previously noted,
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12 Here, the concurring and dissenting memorandum (CDM) concedes that
the text messages at issue “are largely silent as to authorship” but then argues
that they “all involve the same unique telephone number.” Concurring and
Dissenting Memorandum, at 3. More specifically, the CDM determines that
“Harper’s contemporaneous ownership and use of this telephone number[,]”
coincided with evidence that “tied the phone number to the geographic areas
of Harper’s former residence[,] the purported narcotics deal, [and] Harper’s
interstate movements.” Id. at 5. However, mere ownership, possession,
control, and access to a cellular telephone are insufficient to establish
authentication, i.e. authorship or receipt of a particular communication.
Additionally, the CDM also points to evidence that the decedent and Harper
were previously acquainted from the prior drug transaction wherein the
decedent participated as a confidential informant. Id. at 4. Furthermore,
the CDM claims that “there was also testimony establishing that the decedent
asserted that he purchased his heroin from an individual named ‘Rob.’” Id.
Again, past dealings between parties do not authenticate the text messages
at issue. Even if Harper used, or had access to, the transaction cellular
telephone at various points before and after the text messages at issue, such
evidence is not sufficient to support a finding that Harper was an author or
recipient of the particular exchanges relevant herein.
Moreover, we reject the CDM’s attempt to distinguish Koch because that case
dealt with the explicit joint use of the cellular telephone, as well as the
suggestion that “the only competent evidence of record bespeaks Harper’s
ownership and use of the at-issue telephone number.” See id. at 3-4 n.1.
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a single person does not always use a cellular telephone exclusively. Thus,
circumstantial evidence that Harper may have used the cellular telephone at
other times was insufficient to establish authorship of the proffered text
messages. Moreover, the Commonwealth failed to present any contextual
evidence from the text messages themselves, i.e., unique references between
the parties or responsive action upon receipt of a communication, in order to
authenticate authorship as required.13 Accordingly, the Commonwealth failed
to make an adequate foundational showing of the authenticity of the text
messages and we discern no abuse of discretion or error of law in precluding
them for lack of authenticity.
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Here, as set forth above, the Commonwealth only presented evidence that the
cellular telephone was registered to “Billy Bob.” There was no evidence that
specifically connected Harper to the name “Billy Bob.” Thus, evidence of
cellular telephone ownership in this matter was tenuous at best and still
woefully short for authentication purposes. Finally, even though it was
conceded that there was joint access to the cellular telephone in Koch, the
basic tenet that cellular telephones are not always exclusively used by the
person to whom the telephone number is assigned remains the same. Finally,
there was no evidence that the cellular telephone was in Harper’s exclusive
control.
13 In the CDM, the author notes that the text messages at issue reference the
terms “hard” and “dog food” as “slang for crack cocaine and heroin,
respectively.” Concurring and Dissenting Memorandum, at 2-3. However,
these terms are “common street slang.” See N.T. Preliminary Hearing,
5/29/2019, at 39 (“Hard can represent crack cocaine because of the base that
[] comes in a rock form. Dog food for heroin as it may come in a brownish
tint powder.”) (emphasis added). Accordingly, the text messages at issue
contained neither unique references to the parties involved nor a display of
knowledge only possessed by a unique author or recipient.
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Next, the Commonwealth contends that “[because the] proffered Rule
404(b) evidence is relevant, has permissible uses provided by the
Pennsylvania Rules of Evidence 404(b) and is vital to the Commonwealth's
case, the [trial] court abused its discretion when it denied the admissibility of
the evidence at trial.” Commonwealth’s Brief at 12. The Commonwealth
argues, in sum:
The primary fact in dispute in this case is who delivered the
cocaine and the heroin to [the victim] on March 6th: [The victim]
is deceased, there were no (known) eyewitnesses to the
transaction or admissions by Harper, and Harper denies any
connection to the [transaction telephone] or the communications
between [the decedent’s telephone] and [the transaction
telephone regarding arrangements] for the purchase of the crack
cocaine ("hard") and heroin ("dog food"). The sum of the
Commonwealth's other evidence is the circumstantial evidence
connecting Harper to [the transaction telephone]. As such, the
404(b) evidence is essential to establishing the existence of a prior
relationship between [the decedent] and Harper, the nature of
that relationship and law enforcement knowledge of that
relationship prior to the March 6th drug deal, and Harper's intent
and common scheme in dealing to [the decedent]. [The] 404(b)
evidence is highly relevant to proving an otherwise circumstantial
case because it makes a fact at issue - Harper as the
dealer - more likely than it is without the evidence. Additionally,
the fact of that prior criminal case also goes to Harper's
opportunity to sell the cocaine and heroin to Arnold on March 6,
2017: he had been released on bail from custody on the prior
charges just prior to March 6th. Lastly, the fact of that prior case
substantiates that [the transaction telephone number] was
Harper's number based upon the communications to/from that
[tele]phone that match with the events and people involved in
Harper's case.
Further, the probative value of this evidence cannot be
understated when looking at the totality of the Commonwealth's
wholly circumstantial case, the strength of the proffered evidence
and in light of the availability of a cautionary instruction to ensure
the jurors will consider the evidence only for its intended purpose.
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Id. at 16-17 (case citations omitted).
Pennsylvania Rule of Evidence 404(b), entitled “Other crimes, wrongs,
or acts,” provides in relevant part as follows:
(1) Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in
conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be admitted for
other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or
accident.
(3) Evidence of other crimes, wrongs, or acts proffered under
subsection (b)(2) of this rule may be admitted in a criminal case
only upon a showing that the probative value of the evidence
outweighs its potential for prejudice.
Pa.R.E. 404(b)(1)-(3).
An en banc panel of this Court has stated:
Generally, evidence of prior bad acts or unrelated criminal activity
is inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. However, evidence
of prior bad acts may be admissible when offered to prove some
other relevant fact, such as motive, opportunity, intent,
preparation, plan, knowledge, identity, and absence of mistake or
accident. In determining whether evidence of other prior bad acts
is admissible, the trial court is obliged to balance the probative
value of such evidence against its prejudicial impact.
The Commonwealth must prove beyond a reasonable doubt that
a defendant has committed the particular crime of which he is
accused, and it may not strip him of the presumption of innocence
by proving that he has committed other criminal acts.
Commonwealth v. Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc)
(internal citations omitted).
Moreover, we have stated:
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The purpose of Rule 404(b)(1) is to prohibit the admission of
evidence of prior bad acts to prove “the character of a person in
order to show action in conformity therewith.” Pa.R.E. 404(b)(1).
While Rule 404(b)(1) gives way to recognized exceptions, the
exceptions cannot be stretched in ways that effectively eradicate
the rule. With a modicum of effort, in most cases it is possible to
note some similarities between the accused's prior bad conduct
and that alleged in a current case. To preserve the purpose of
Rule 404(b)(1), more must be required to establish an exception
to the rule - namely a close factual nexus sufficient to
demonstrate the connective relevance of the prior bad acts to the
crime in question. […T]his Court has warned that prior bad acts
may not be admitted for the purpose of inviting the jury to
conclude that the defendant is a person “of unsavory character”
and thus inclined to have committed the crimes with which he/she
is charged.
Id. at 104–105 (citations omitted).
Here, the Commonwealth admits that the evidence in this case is “wholly
circumstantial” and that it sought to admit the proffered 404(b) evidence of a
prior narcotic sale between Harper and the decedent “to establish[] the
existence of a prior relationship[.]” The Commonwealth must prove beyond
a reasonable doubt that Harper committed the particular crimes of which he
was accused, and it may not strip him of the presumption of innocence by
proving that he has committed other criminal acts. Prior bad acts may not be
admitted for the purpose of inviting the factfinder to conclude that a person is
of unsavory character and, therefore, inclined to commit the charged offense.
Here, in the absence of evidence connecting Harper and the decedent during
the episode in question, the Commonwealth’s proffered prior act evidence
would invite the factfinder to assume Harper acted in conformity with past
criminal conduct or had a general propensity for crime. Moreover, the trial
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court weighed the probative value of the proffered evidence, as required, and
determined that it was unfairly prejudicial to Harper. Based upon our standard
of review, we discern no trial court abuse of discretion or error of law in
precluding evidence of Harper’s prior conviction for heroin delivery at trial in
this matter.
Order affirmed.
Judge King joins.
Judge Bowes files a Concurring and Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/01/2021
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