J-S08002-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
                  v.                     :
                                         :
                                         :
MARQUICE EVANS                           :
                                         :
              Appellant                  :   No. 1925 WDA 2016

         Appeal from the Judgment of Sentence November 18, 2016
  In the Court of Common Pleas of Erie County Criminal Division at No(s):
                         CP-25-CR-0000818-2010,
            CP-25-CR-0000819-2010, CP-25-CR-0002901-2015


BEFORE:    LAZARUS, J., KUNSELMAN, J., and STEVENS*, P.J.E.

MEMORANDUM BY LAZARUS, J.:                      FILED FEBRUARY 26, 2018

     Marquice Evans appeals from the judgment of sentence, imposed in the

Court of Common Pleas of Erie County, following his conviction, by a jury, for

conspiracy to commit criminal homicide, criminal homicide, aggravated

assault, burglary, recklessly endangering another person (REAP), access

device issued to another who did not authorize use, unlawful restraint, and

possession of an instrument of crime (PIC). After careful review, we affirm.

     The trial court cited the facts underlying this case as follows:

     On the evening of June 22, 2015, K.J. and his cousin, J.D., spent
     the night with their [great-]grandmother, Sherry Lyons. The next
     afternoon, the granddaughter of one of Ms. Lyons’ friends, Teonia
     Kimbro, visited Ms. Lyons' home. Ms. Kimbro arrived on a bicycle.

     Kimbro left Ms. Lyons’ home shortly after arriving, but returned
     about ten minutes later asking for a cup of water. Kimbro left her
     bicycle in Ms. Lyons’ backyard. At some point, J.D. asked his
     [great-]grandmother if he and K.J. could go to Mighty Fine

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S08002-18


     Doughnuts. Ms. Lyons consented, gave Kimbro her bank card, and
     asked Kimbro to accompany the boys.

     The three left Ms. Lyons’ residence on foot and arrived at Mighty
     Fine Doughnuts where Kimbro purchased half a dozen doughnuts
     with Ms. Lyons’ bank card. After they finished eating, they
     packaged the extra doughnuts to-go and walked to the Country
     Fair on the corner of 26th and State Street, across from Veteran's
     Stadium. J.D. and K.J. saw Kimbro attempt to use Ms. Lyons' bank
     card at the ATM machine inside the store.

     After leaving the Country Fair on the corner of 26th and State
     Street, the three walked to a car lot on 26th Street. While there,
     K.J. recalled a short, dark-skinned male with dread[]locks
     approached Kimbro. The man was wearing a black t-shirt and
     black shorts, and arrived on the same bike Kimbro left at Ms.
     Lyons’ home. K.J. believed the male was Kimbro’s friend, but
     stated the two argued, and the man left the car lot quickly.

     Instead of taking K.J. and J.D. back to their [great-]grandmother’s
     house, Kimbro took K.J. and J.D. to a park on 23111 Street, and
     then to the Dollar General across the street from Mighty Fine
     Doughnuts, despite their requests to return to Ms. Lyons’ home.
     While at Dollar General, the children asked Kimbro to buy them
     candy. Kimbro told the children she couldn't because she “lost”
     Ms. Lyons' bank card. After leaving the Dollar General, Kimbro
     took K.J. and J.D. to a McDonalds on 26th Street, stating her
     phone was dying and she needed to call someone. While at the
     McDonalds, Kimbro used a landline phone and K.J.’s cell phone to
     place a call.

     Subsequently, Kimbro took the children to a friend’s home at the
     intersection of East 6th and State Streets. While there, K.J. noticed
     the same man who met Kimbro at the car lot arrive on the same
     bike, but noticed he was wearing different clothing.

     Shortly after 8:00 p.m., K.J.’s mother, Talaysha Stanton, saw the
     children outside a corner store near East 6th and State Streets
     when she was on her way to pick up some items at a nearby shop.
     She also saw [Evans] outside the store. Instead of taking the
     children back to Ms. Lyons’ home, Talaysha took the children to
     her home. Once K.J. and J.D. reached Talaysha’s home, K.J. told
     his mother Kimbro lost his grandmother’s bank card. After
     learning K.J. knew where to find Kimbro, Talaysha sent him to
     retrieve the card. However, K.J. was unable to recover it.


                                     -2-
J-S08002-18


     Talaysha testified that before she found the children she
     attempted to reach Ms. Lyons just before 8:00 p.m. However, Ms.
     Lyons did not answer the phone. Once Talaysha and the children
     arrived home, Talaysha called Ms. Lyons again. No one answered.
     Talaysha became worried and called her aunt, Darlene Stanton,
     who had a key to Ms. Lyons’ home.

     Talaysha, Darlene, and several of Ms. Lyons’ nieces arrived at Ms.
     Lyons’ home around 11:00 p.m. Talaysha testified the family saw
     blood around the entryway of the home and on the floor as soon
     as they entered the residence. When the family entered the living
     room, they saw more blood on the carpet near the couch and on
     the wall, but no sign of Ms. Lyons. The family searched the upper
     floors of the home for Ms. Lyons with no success. The family then
     directed their search to the basement.

     Talaysha testified she saw more blood at the top of the basement
     stairs and a large hole in the wall at the foot of the stairs. A pool
     of blood was beneath the hole.

     The family found Ms. Lyons in one of the back basement rooms.
     Ms. Lyons was lying on her back with her shirt pulled up around
     her middle, a television on her chest, and one leg in the air. Duct
     tape was wrapped around Ms. Lyons covering her eyes, nose, and
     mouth. The family found Ms. Lyons’ cordless phone had been
     running for six and a half hours, close to the last time a neighbor
     saw her sitting on her front porch.

     Various members of the Erie Police Department were dispatched
     to the Lyons residence around 11:50 p.m. for a possible homicide.
     Detectives arrived on the scene at approximately 1:30 a.m. on
     June 24, 2015. Detective Kensil, one of the detectives on duty,
     took photographs of the Lyons residence capturing the blood
     pooling and blood splatter found throughout. Included in these
     photographs were pictures of a roll of duct tape found on the couch
     where blood was also present, and pieces of a broken, decorative
     wooden spoon. The detective also took a picture of the hole found
     at the bottom of the basement steps. He described the hole as
     being “about the size of a human head,” and stated he saw drag
     marks left in blood on the basement carpet leading to the room
     where Ms. Lyons was found.

     The detective also observed Ms. Lyons before she was taken for
     autopsy. He corroborated the family’s testimony her head was
     wrapped in duct tape. In fact, the detective stated the tape
     covered Ms. Lyons’ head so completely it was impossible to

                                     -3-
J-S08002-18


     identify her. He also testified she appeared to have been beaten,
     and dragged by her legs, which explained the manner in which her
     shirt was rolled up from her waist. The detective observed a large
     TV on the ground next to Ms. Lyons’ body.

     Other evidence found at the home included a sweatshirt matching
     Ms. Lyons’ clothing, two broken pieces of a wooden spoon, a Fago
     soda pop bottle, and a pizza crust. Several surfaces were
     processed for fingerprinting and DNA evidence including the front
     door and threshold, pill bottles, blood on various floor surfaces,
     walls, pieces of the wooden spoon, and duct tape. The detective
     also acquired a pair of white Nike shoes from [Evans] when he
     was arrested. No forensic evidence was retrieved from the duct
     tape. Any other item recovered with potential evidence was sent
     to the PSP crime lab for analysis and verification.

     After autopsy, the forensic pathologist concluded Ms. Lyons died
     from suffocating asphyxiation secondary to the application of
     multiple loops of duct tape around her face with a concurrent
     component of incapacitating blunt force trauma to the head. The
     doctor testified the blunt force trauma Ms. Lyons sustained could
     have been caused by the wooden spoon handle recovered from
     the crime scene. The fracture to her skull could have been
     consistent with an injury sustained after being thrown down a
     flight of stairs.

     In addition to the injuries to Ms. Lyons’ brain and skull area, the
     doctor found several contusions on the inside of her calves and on
     her right upper arm he described as “fingertip contusions.” The
     doctor also found brush burn abrasions in the middle of Ms. Lyons’
     lower back he described as “rug burn,” rib fractures, and a
     disruption of the bone between her right collar bone and the
     sternum of her breast bone. The doctor explained these fractures
     would be consistent with a large, heavy object, such as a TV, being
     placed on Ms. Lyons’ chest. It was also the doctor’s opinion that
     at the time the TV was placed on Ms. Lyons’ chest she was alive.

     Of the pieces of evidence submitted to the forensic lab, Tim Gavell,
     a forensic scientist with the Pennsylvania State Police DNA Lab,
     matched DNA lifted from the spoon handle to Sherry Lyons and
     the Defendant, Marquice Evans. No other DNA was present on
     the spoon handle. Gavell also confirmed the blood splatter found
     on the living room wall matched Sherry Lyons’ DNA. The DNA
     found on the Fago pop bottle submitted to the lab provided only a
     partial profile, and matched someone in [Evans’] paternal lineage.


                                    -4-
J-S08002-18


     Detective Lorah testified K.J. identified [Evans] as the man he saw
     with Kimbro from a picture line up shortly after the police
     investigation began. Juan Garcia, [Evans’] cousin, identified
     Teonia Kimbro as [Evans’] “baby mom.”

     Video footage and bank records were recovered from various
     places of business and a Northwest Savings bank that placed Ms.
     Lyons’ bank card in [Evans’] hands after he was seen with Ms.
     Kimbro in the car parking lot, and after Ms. Lyons’ death. Bank
     statements confirmed a transaction at Mighty Fine Doughnuts,
     and also showed a denied attempt to withdraw $500.00 from an
     ATM at the Country Fair located at 26th and State Streets at 5:12
     p.m. After this attempt, another was made in the amount of
     $200.00 at the same Country Fair at 5:32 p.m. Another
     withdrawal attempt was made at the Country Fair located at 802
     East Avenue for $150.00 around 7:52 p.m., with another denied
     at that same location a half hour later. [Evans] was also seen
     making a purchase around 10:30 p.m. at the Shell gas station on
     6th and Parade. The video footage recovered from these locations
     showed Kimbro using the bank card at the 26th and State Street
     Country Fair, and [Evans] attempting to withdraw funds with that
     card at the other locations.

     Text messages were also recovered from Kimbro’s cell
     phone after she was taken into custody linking the
     Defendant to Ms. Lyons’ death and the use of her bank card.
     In Kimbro’s phone, police found a conversation she had
     with a contact named “Quice” that named him as the father
     of her child, a picture of a positive pregnancy test, and
     “selfies” of one person being sent to the other. Many of the
     messages referenced bank transactions associated with
     Ms. Lyons’ card that occurred on June 19th.

     Other messages directly referenced Sherry Lyons’ murder
     including those which read: “Either you going to kill this
     bitch before the 1st or you going to give it back,” “Okay.
     You got my word. She a goner,” and “go over there and
     handle that quietly.” Others asked one if the other knew
     whether Ms. Lyons’ door was unlocked. One message
     stated they had to kill Sherry before she went to the police
     about getting her money back. Call records also showed
     the number associated with “Quice” called Kimbro’s phone
     at the time [Evans] used the victim’s ATM card at a
     Northwest Savings Bank, and 22 other times on June 23,
     2015. Coincidentally, the phone number associated with

                                    -5-
J-S08002-18


      the “Quice” contact disappeared once Kimbro was taken
      into custody.

      Finally, Christopher Hazel, an inmate at SCI Westmoreland,
      testified about the last contact he had with [Evans]. Hazel testified
      [Evans], whom he casually knew as “Quice,” contacted him in the
      middle of June, 2015, telling him he was going to visit him in
      Pittsburgh soon. Eventually, the two met at a Greyhound bus
      station in Pittsburgh. Hazel testified [Evans] told him he was in
      trouble up in Erie County, that he [“]caught[”] a homicide, and
      the police found the body within five hours of when he did it.
      [Evans] also told Hazel he bashed the victim’s face in and only got
      $400.00 off the victim's debit card before the police froze the
      account.

      According to Hazel, [Evans’] “baby mom” was in jail for the offense
      and agreed to “take the case” for him. Originally, [Evans] told
      Hazel his girlfriend was going to try to distract the victim, and he
      was going to sneak up on her and choke her so they could steal
      her credit card, but the plan didn’t work because the victim saw
      [Evans’] face. [Evans] described the injuries he caused to the
      victim as being “horrendous and the gruesomest [sic] murder ever
      seen in Erie, Pennsylvania.” [Evans] also told Hazel it was his
      girlfriend’s plan to steal the money, and, if necessary, kill the
      victim.

Trial Court Opinion, 3/10/17, at 3-10 (emphasis added) (citations to notes of

testimony omitted).

      After a two-day trial, the jury convicted Evans on all charges. Evans

was sentenced to life imprisonment, plus 38 years and five months to 77 years

of imprisonment. Evans filed a post-sentence motion that was granted in part

and denied in part; the court modified Evans’ sentence to life imprisonment,

plus 25 years and six months to 51 years and one month of imprisonment.

This timely appeal follows.

      On appeal, Evans presents the following issue for our consideration:

Whether the trial court erred and/or abused its discretion in denying [Evans’]


                                      -6-
J-S08002-18



[m]otion in [l]imine seeking to limit1 and/or suppress the statements of the

co-defendant and the text messages.2

Bruton Claim

       Evans first claims that by admitting the text messages at his trial, his

constitutional rights under the Confrontation Clause were violated under the

Supreme Court’s decision, Bruton v. United States, 391 U.S. 123 (1968).

       In Bruton, at the defendant and co-defendant’s joint trial, the trial court

admitted the co-defendant’s confession to a postal inspector as substantive

evidence of guilt.     Id. at 124. The trial court instructed the jury that the

confession could only be used against the co-defendant, as the declarant, and

could not be considered against the defendant, since the statement was

inadmissible hearsay.        Id. at 125. Following a conviction, the defendant

appealed on the basis that the admission of the statement at trial violated his

right of confrontation and that the instruction was insufficient to protect his

confrontation rights. On appeal, the Supreme Court held that “in the context


____________________________________________


1 We may reverse rulings on the admissibility of evidence only if we find that
the trial court abused its discretion. Commonwealth v. Lockcuff, 813 A.2d
857, 860 (Pa. Super. 2002). Moreover, admissibility depends on relevant and
probative value. Evidence is relevant if it logically tends to establish a material
fact in the case, tends to make a fact at issue more or less probable or
supports a reasonable inference or presumption regarding a material fact.
Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super. 2006).
2 On July 11, 2017, in response to Evans’ application seeking remand, our
Court remanded the instant case to permit defense counsel to file a
supplemental Pa.R.A.P. 1925(b) concise statement of errors complained of on
appeal.

                                           -7-
J-S08002-18



of a joint trial, we cannot accept limiting instructions as an adequate substitute

for petitioner’s constitutional right of cross-examination.” Id. at 136.

      First, we note that Evans’ co-defendant, Kimbro, was tried separately,

not jointly with him.   Moreover, as the trial court acknowledges, the text

messages were non-testimonial in nature; they were not made under

circumstances which would lead an objective witness reasonably to believe

that the statements would be available for use at a later trial. Melandez-

Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).                Out-of-court non-

testimonial statements are subject only to a state's hearsay rules and are

exempted from Confrontation Clause scrutiny. Commonwealth v. Abrue,

11 A.3d 484 (Pa. Super. 2010), citing Crawford v. Washington, 541 U.S.

36, 68 (2004).

      Accordingly, we conclude that Bruton, and its attendant Confrontation

Clause violation concerns, are not implicated.        Thus, we find the claim

meritless.

Koch/Authentication Claim

      Evans next claims that the Commonwealth did not properly authenticate

the text messages where they came from a burner phone or a phone brought

from a store with no registration details, the actual phone was never

recovered, and no identifying information regarding the owner of the phone

or the author of the texts was ever identified.




                                      -8-
J-S08002-18



        In Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), affirmed

by equally divided court, 106 A.3d 705 (Pa. 2014), our Court recognized

that:

        Text messages are somewhat different in that they are intrinsic to
        the cell 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 phone number is assigned.

        Authentication is a prerequisite to admissibility. . . .
        [A]uthentication of electronic communications, like documents,
        requires more than mere confirmation that the number or address
        belonged to a particular person. Circumstantial evidence, which
        tends to corroborate the identity of the sender, is required.

Id. at 1004-1005.

        Here, the Commonwealth points out that there was ample corroborating

evidence supporting the conclusion that Evans and his co-conspirator, Kimbro,

authored the text messages. That evidence included: the phone receiving

and sending the text messages was recovered from Kimbro; the phone

number texting Kimbro’s phone was saved within her phone under the name,

“Quice”; the contact known as “Quice” responded to the sender calling him

“Marquise” [sic]; texts identified “Quice” as the father of Kimbro’s baby; Evans

told police that Kimbro was carrying his child; text messages between “Quice”

and Kimbro discussed the amount of currency “Quice” was seen withdrawing

on video surveillance at ATM’s; phone records showed that “Quice’s” phone


                                       -9-
J-S08002-18



number made calls during the time Evans is seen on video talking on a cell

phone; pictures of Evans recovered from Kimbro’s phone and sent between

that phone and “Quice” show him wearing a Chicago bulls hat which was the

same hat he wore on surveillance videos using the victim’s debit card; and

texts discussed the actual killing of the victim.

      Based   on   the   record,   we   conclude    that   there   was   sufficient

circumstantial evidence to corroborate the identity of the text message

authors, Kimbro and Evans, for authentication purposes.            Koch, supra;

Commonwealth v Mosley, 114 A.3d 1072 (Pa. Super. 2015).

Pennsylvania Rule of Evidence 803 Claim

      Evans contends that the trial court improperly admitted hearsay

evidence, under Pennsylvania Rule of Evidence 803(25)(E), where no proper

foundation was made to show that “a conspiracy existed between the

declarant and the person against whom the evidence [wa]s offered.”

      Rule 803(25)(E), an exception to the rule against hearsay, provides that

an opposing party’s statement is admissible where “[t]he statement is offered

against an opposing party and . . . was made by the party’s co[-]conspirator

during and in furtherance of the conspiracy.”        In order to establish the

admissibility of a co-conspirator’s statement under Rule 803(25)(E), the

Commonwealth must only show that a conspiracy existed by a preponderance

of the evidence.    Commonwealth v. Greene, 702 A.2d 547 (Pa. Super.

1997).




                                     - 10 -
J-S08002-18



     Here, both K.J. and Talayshia Stanton, the victim’s granddaughter,

offered circumstantial evidence that a conspiracy existed between Evans and

Kimbro.   Moreover, the video testimony as well as testimony from fellow

inmate, Christopher Hazel, support the conclusion that Evans and Kimbro were

co-conspirators. Accordingly, we conclude that the Commonwealth proved a

conspiracy by a preponderance of the evidence.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/26/2018




                                   - 11 -
