J-A02036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                        v.

RITA ELIZABETH PULTRO

                             Appellant                No. 1593 EDA 2015


               Appeal from the Judgment of Sentence May 1, 2015
       in the Court of Common Pleas of Delaware County Criminal Division
                        at No(s): CP-23-CR-0007119-2013

BEFORE: OTT, RANSOM, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED DECEMBER 08, 2017

        Appellant, Rita Elizabeth Pultro, appeals1 from the judgment of

sentence entered in the Delaware County Court of Common Pleas after a

jury found her guilty of murder of the first degree,2 robbery,3 conspiracy,4

and carrying a firearm without a license.5      Appellant claims that the trial

court erred in denying her motion to suppress evidence obtained from a

search of her cellphone, denying her motions to sever her case from her


*   Former Justice specially assigned to the Superior Court.
1The appeals of Appellant’s codefendants, Tariq Mahmud and David Wiggins,
are listed at J-A02035-17 and J-A02037-17, respectively.

2   18 Pa.C.S. § 2502(a).

3   18 Pa.C.S. § 3701(a)(1)(i).

4   18 Pa.C.S. § 903.

5   18 Pa.C.S. § 6106(a).
J-A02036-17

codefendants, and admitting into evidence incriminating messages from her

cellphone without adequate authentication. We affirm.

     Appellant’s conviction arises from the killing of Jason McClay at a Rite

Aid store in the City of Chester, where McClay was a manager.             The

Commonwealth alleged the following. In August and September 2013, Tariq

Mahmud was employed as loss prevention agent at the Rite Aid store.

Mahmud, Ashaniere White, and Christopher Parks planned to rob the Rite Aid

store. Mahmud told White and Parks about how much money was kept in

the store’s safe, who was working, and about blind spots in the store’s video

surveillance system. Mahmud warned them not to try to rob the store when

McClay was working, because he was a former marine who would fight back.

     On August 19, 2013, White and Parks robbed the Rite Aid store when

McClay was not on duty. On August 26 and September 4, 2013, White and

Parks again attempted to rob the store, but employees recognized White.

     Mahmud, White, and Parks thereafter sought the assistance of new

people to rob the store, and brought David Wiggins into their plans. Wiggins

wanted another individual, Appellant, to participate as well.     The group

planned a robbery for September 18, 2013, but postponed it until

September 19, 2013.

     On September 19, 2013, McClay worked the day shift at the Rite Aid

store and stayed for the evening shift due to the unavailability of another

manager, Serita Cottman.     Mahmud called out from work that day.         At



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approximately 9:45 p.m., an employee saw a white female, later identified

as Appellant, and a black male, later identified as Wiggins, enter the store.

Appellant retrieved a light bulb and took it to the counter.           When the

employee told her the amount due, Appellant complained that it was too

expensive, placed the item back on the shelf, and asked to see the manager.

McClay went back to the aisle, and he and Appellant began discussing

lightbulbs. Wiggins then grabbed McClay and told McClay to take him to the

safe.    Wiggins and McClay began wrestling until Appellant shot McClay at

close range at the base of his neck and killed him. Appellant and Wiggins

fled from the store and left the scene in a vehicle driven by Parks.

        The investigation into the shooting revealed that Wiggins left a palm

print in the Rite Aid store. Investigators obtained a photograph of Wiggins

and showed it to two employees, and they both identified Wiggins as one of

the robbers. Wiggins was arrested on September 21, 2013, and admitted

his role in the robbery. Wiggins identified Appellant as the other person with

him in the store.    Investigators also learned that Appellant was in contact

with her friends and sister and obtained a new cellphone after the killing.

        Appellant was arrested on September 22, 2013. Following her arrest,

investigators obtained a warrant to search to Appellant’s new phone.          The

search of Appellant’s cellphone revealed that Appellant made inculpatory

statements to her friend, whom she referred to as her wife, indicating that

she “caught a body” and needed a “place to lay low.” N.T., 2/2/15, at 208.



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J-A02036-17

Appellant referenced the Rite Aid store in the news and also related that

there was “a robbery gone wrong,” and that police told “her brother” that he

could face the death penalty, but she would not let him die for her. Id. at

209-10, 211.

        Mahmud, Parks, and White were subsequently arrested.          Parks and

White    pleaded guilty    to   third-degree   murder   in exchange   for   their

cooperation, and the Commonwealth dropped charges of second-degree

murder against them.

        Appellant filed an omnibus pretrial motion seeking suppression of the

evidence obtained from her phone and severance of her trial from

codefendants. The trial court denied the motions on December 24, 2014.

        Appellant, Mahmud, and Wiggins proceeded to a joint jury trial for the

September 19, 2013 robbery and killing of McClay. Parks and White testified

against them. The Commonwealth also introduced numerous text messages

between the various parties, as well as Appellant’s messages to her friend.

The jury found Appellant guilty of first-degree murder, robbery, and

conspiracy. The trial court sentenced Appellant to life imprisonment on May

1, 2015.

        Appellant timely appealed and complied with the trial court’s order to

submit a Pa.R.A.P. 1925(b) statement. This appeal followed.

        Appellant presents the following questions for review:

           1. Whether the search of Appellant’s cell phone, seized
           incident to her arrest, was in violation of the Fourth and


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         Fourteenth Amendments to the United States Constitution
         and Article 1 Section 8 of the Pennsylvania Constitution,
         where the warrant issued for the search of the phone failed
         to establish probable cause that the phone contained
         evidence of the crime.

         2. Whether Appellant’s rights to a fair trial, due process of
         law and confrontation of witnesses under the Fourth, Fifth,
         Sixth and Fourteenth Amendments to the United States
         Constitution and Article 1 Sections 8 and 9 of the
         Pennsylvania Constitution, were violated by denial of
         Appellant’s motion to sever her trial from co-defendant
         David Wiggins, where Wiggins’ confession to police,
         redacted to remove references to Appellant by name,
         nonetheless implicated Appellant by virtue of other
         evidence introduced at trial.

         3. Whether Appellant’s right to due process and a fair trial,
         guaranteed by the Fourth, Fifth and Sixth Amendments to
         the United States Constitution and Article I Sections 8 and
         9 of the Pennsylvania Constitution, as well as Pa.R.Crim.P.
         Rules 582 and 583, violated by the joinder of Appellant's
         trial with co-defendant Tariq Mahmud, where evidence was
         introduced at the joint trial that Mahmud was involved in
         three prior robberies of the same store, robberies in which
         Appellant played no part and evidence of which would not
         have been admissible at Appellant’s trial.

         4. Whether the trial court committed error of law and
         abuse of discretion, and violated Appellant’s right to a fair
         trial and due process of law, in admitting into evidence,
         incriminating text messages obtained from Appellant’s cell
         phone, where the Commonwealth failed to properly
         authenticate the text messages.

Appellant’s Brief at 4-5.

      Appellant first claims that the trial court erred in denying her motion to

suppress evidence obtained from her cellphone pursuant to a search

warrant. Relying on Commonwealth v. Wright, 99 A.3d 565 (Pa. Super.

2012), she contends that the affidavit of probable cause failed to


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J-A02036-17

demonstrate that the phone was of evidentiary value or contained

information related to the crimes. We disagree.

      When reviewing a trial court’s denial of a motion to suppress evidence

obtained pursuant to warrant,

         [we are] limited to determining whether the suppression
         court’s factual findings are supported by the record and
         whether the legal conclusions drawn from those facts are
         correct. Because the Commonwealth prevailed before the
         suppression court, we may consider only the evidence of
         the Commonwealth and so much of the evidence for the
         defense as remains uncontradicted when read in the
         context of the record as a whole. Where the suppression
         court’s factual findings are supported by the record, [the
         appellate court is] bound by [those] findings and may
         reverse only if the court’s legal conclusions are erroneous.
         Where . . . the appeal of the determination of the
         suppression court turns on allegations of legal error, the
         suppression court’s legal conclusions are not binding on an
         appellate court, whose duty it is to determine if the
         suppression court properly applied the law to the facts.
         Thus, the conclusions of the courts below are subject to [ ]
         plenary review.

Commonwealth v. Parker, 161 A.3d 357, 361-62 (Pa. Super. 2015)

(citation omitted).

          Article I, Section 8 and the Fourth Amendment each
         require that search warrants be supported by probable
         cause. “The linch-pin that has been developed to
         determine whether it is appropriate to issue a search
         warrant is the test of probable cause.” “Probable cause
         exists where the facts and circumstances within the
         affiant's knowledge and of which he has reasonably
         trustworthy information are sufficient in themselves to
         warrant a man of reasonable caution in the belief that a
         search should be conducted.”

         [T]he United States Supreme Court established the
         “totality of the circumstances” test for determining


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J-A02036-17


       whether a request for a search warrant under the Fourth
       Amendment is supported by probable cause.            [The
       Pennsylvania Supreme] Court adopted the totality of the
       circumstances test for purposes of making and reviewing
       probable cause determinations under Article I, Section 8.
       In describing this test, [the Pennsylvania Supreme Court]
       stated:

          Pursuant to the “totality of the circumstances” test .
          . . the task of an issuing authority is simply to make
          a practical, common-sense decision whether, given
          all of the circumstances set forth in the affidavit
          before him, including the veracity and basis of
          knowledge of persons supplying hearsay information,
          there is a fair probability that contraband or evidence
          of a crime will be found in a particular place. . . . It is
          the duty of a court reviewing an issuing authority’s
          probable cause determination to ensure that the
          magistrate had a substantial basis for concluding
          that probable cause existed.         In so doing, the
          reviewing court must accord deference to the issuing
          authority’s probable cause determination, and must
          view the information offered to establish probable
          cause in a common-sense, non-technical manner.

                                    ***

          [Further,] a reviewing court [is] not to conduct a de
          novo review of the issuing authority’s probable cause
          determination, but [is] simply to determine whether
          or not there is substantial evidence in the record
          supporting the decision to issue the warrant.

       As our United States Supreme Court stated: “A grudging or
       negative attitude by reviewing courts towards warrants . .
       . is inconsistent with the Fourth Amendment’s strong
       preference for searches conducted pursuant to a warrant;
       courts should not invalidate warrants by interpreting
       affidavits in a hypertechnical, rather than a commonsense,
       manner.”




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J-A02036-17

Commonwealth v. Jones, 988 A.2d 649, 655-56 (Pa. 2010) (citations and

footnote omitted).    A search warrant generally is required to search the

contents of a cellphone. See Riley v. California, 134 S. Ct. 2473 (2014).

     In Wright, the police executed a warrant to arrest the defendant for a

double homicide and a detective seized a cellphone on the nightstand next

to where the defendant was found sleeping.           Wright, 99 A.3d at 567-68.

The trial court granted the defendant’s motion to suppress concluding that

the phone was not seized incident to arrest.                   Id. at 568.     The

Commonwealth appealed.

     The Wright Court affirmed, holding that the seizure of the cellphone

was improper under the plain view doctrine because the Commonwealth

established that     the   incriminating   nature    of the    cellphone   was not

immediately apparent.      Id. at 569-70.        The Court observed that an item

may be immediately incriminating when officers “articulate specific evidence

tying the seized object to the crime under investigation.”             Id. at 570

(discussing   Commonwealth         v.   Ellis,    662   A.2d   1043   (Pa.   1995),

Commonwealth v. Jones, 988 A.2d 652 (Pa. 2010), and Commonwealth

v. McEnany, 667 A.2d 1148 (Pa. Super. 1995)).              In the case before it,

however, the detective seized the defendant’s phone merely because “cell

phones often have crucial pieces of evidence for our case,” the defendant

had a prior relationship with one of the victims, and the detective suspected

that “he would find communication between the two shortly prior to the



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J-A02036-17

murder.” Id. The Court concluded that the detective’s testimony fell short

of evidence linking the phone to a crime and it was “pure conjecture” to

believe that the phone or its contents were incriminating.             Id.   We

emphasized that there was no evidence that the defendant had called the

victim, as in McEnany, and no physical evidence, such as blood, on the

phone itself, as in Jones. Id.

      Instantly, the affidavit of probable cause recited facts related to the

initial investigation into the killing of McClay, including the identification of

Wiggins, Wiggins’ arrest, and Wiggins’ identification of Appellant as his

accomplice. Of relevance to this appeal, the affidavit contained information

that two individuals identified Appellant from surveillance photographs taken

at the Rite Aid, that one of those witnesses, who knew Appellant for more

than twenty years, communicated with Appellant by phone and text

message within three days after the murder. The affidavit further stated:

         It was also learned during this investigation that
         [Appellant] communicated with persons other than witness
         #6 via cellular telephone calls and text messaging on or
         about Friday September 20, 2013 trough [sic] Sunday
         September 22, 2013.

         Your Affiant Detective Michael Jay, Delaware County
         Criminal Investigation Division Homicide Unit was assigned
         to assist with this investigation.       Your Affiant has
         conducted and participated in numerous Homicide
         investigations, where cellular telephones were used by the
         actors and or victims before, during and after the crime.

         Your Affiant knows through training and experience that
         persons who conspire to commit crime together may use
         various forms of communication, including, but not limited


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J-A02036-17


         to cellular telephones, to plan the crime or communicate
         information subsequently in an attempt to conceal the
         crime.     Your Affiant also knows that demonstrating
         communication between two persons involved in a crime
         may assist in providing evidence of the conspiracy.

Aff. of Probable Cause, 9/25/13, at 4.        Lastly, when taken into custody,

Appellant had the cellphone in her possession and admitted that she was

aware she was under investigation for “the robbery in Chester.” Id.

      Thus, the affidavit of probable cause presented evidence far stronger

than in Wright, and the trial court correctly ruled that there was probable

cause to search Appellant’s phone. See Trial Ct. Op., 5/18/16, at 7-9. The

affidavit established a fair probability that Appellant was a participant in the

robbery and shooting and had conspired to do so.         In addition, Appellant

used the phone to communicate several days after the shooting and

admitted she was a suspect for the robbery in Chester. Accordingly, there

was probable cause to believe that evidence related to a conspiracy, a

robbery, and the resulting the homicide could be found in Appellant’s phone.

See Jones, 988 A.2d at 655–56. Accordingly, no relief is due.

      Appellant’s second and third claims focus on the trial court’s denial of

her motions to sever her case from her codefendants.            Our review is

governed by the following precepts:

         Whether cases against different defendants should be
         consolidated for trial “is within the sole discretion of the
         trial court and such discretion will be reversed only for a
         manifest abuse of discretion or prejudice and clear
         injustice to the defendant.” Procedurally, Rule 582 of the
         Pennsylvania Rules of Criminal Procedure governs the


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J-A02036-17


        joinder of separate criminal informations.         Rule   582
        dictates, in pertinent part, as follows:

           (1) Offenses charged in separate indictments or
           informations may be tried together if:

              (a) the evidence of each of the offenses would be
              admissible in a separate trial for the other and is
              capable of separation by the jury so that there is
              no danger of confusion; or

              (b) the offenses charged are based on the same
              act or transaction.

        Pa.R.Crim.P. 582(A).      The severance of offenses is
        governed by Pa.R.Crim.P. 583, which states that the trial
        court “may order separate trials of offenses or defendants,
        or provide other appropriate relief, if it appears that any
        party may be prejudiced by offenses or defendants being
        tried together.” Pa.R.Crim.P. 583.

        Based upon these rules, our Supreme Court has
        formulated the following test for deciding the merits of a
        motion to sever:

           Where the defendant moves to sever offenses not
           based on the same act or transaction that have been
           consolidated in a single indictment or information, or
           opposes joinder of separate indictments or
           informations, the court must [ ] determine: [1]
           whether the evidence of each of the offenses would
           be admissible in a separate trial for the other; [6] [2]
           whether such evidence is capable of separation by
           the jury so as to avoid danger of confusion; and, if
           the answers to these inquiries are in the affirmative,


6 The parties contest whether the admissibility of evidence prong is proper
when analyzing the joinder of cases involving separate defendants whose
offenses arise from a single incident. See Appellant’s Brief at 36-37;
Commonwealth’s Brief at 44-45 (discussing Commonwealth v. O’Neil, 108
A.3d 900 (Pa. Super. 2015)).




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J-A02036-17


             [3] whether the defendant will be unduly prejudiced
             by the consolidation of offenses.

Commonwealth v. Melvin, 103 A.3d 1, 28-29 (Pa. Super. 2014) (some

citations omitted).

          “[J]oint trials are preferred where conspiracy is charged.
          [Nevertheless, s]everance may be proper where a party
          can establish the co-defendants’ defenses are so
          antagonistic that a joint trial would result in prejudice. . . .
          However, the party seeking severance must present more
          than a mere assertion of antagonism[.]”

Commonwealth v. Housman, 986 A.2d 822, 934 (Pa. 2009).

        In her second issue, Appellant asserts that she was entitled to a

separate trial from Wiggins because she suffered a Bruton7 violation based

on the admission of Wiggins’ confession. She asserts that the trial evidence

made clear that she was the individual referred to in Wiggins’ statement

detailing the September 21, 2013 robbery, despite the redactions to the

statement.    Appellant acknowledges that the Pennsylvania Supreme Court

has held that certain redactions of a non-testifying codefendant’s confession

do not violate Bruton.      Nevertheless, she argues that the United States

Third Circuit Court of Appeals decision in Vazquez v. Wilson, 550 F.3d 270

(3d Cir. 2008), stands as “an example why Pennsylvania’s approach to

Bruton and its progeny, as set out in [Commonwealth v. Travers, 768

A.2d 845 (Pa. 2001)], is incorrect.” Appellant’s Brief at 33. No relief is due.




7   Bruton v. United States, 391 U.S. 123 (1968).



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J-A02036-17

     In Travers, the Pennsylvania Supreme Court set forth guidance

regarding Bruton claims.

        In Bruton, the trial court admitted into evidence at a joint
        trial the confession of Bruton’s non-testifying co-
        defendant, which named and incriminated Bruton in the
        armed robbery on trial. The court instructed the jury that
        the confession “if used, can only be used against [Bruton's
        co-defendant],” and could not be considered in the case
        against Bruton. The Supreme Court reversed, holding that
        the admission of the facially incriminating statement by
        the non-testifying co-defendant violated Bruton’s right of
        cross-examination guaranteed by the confrontation clause
        of the Sixth Amendment, notwithstanding the jury charge.
        The Court reasoned that:

           There are some contexts in which the risk that the
           jury will not, or cannot, follow instructions is so
           great, and the consequences of failure so vital to the
           defendant, that the practical and human limitations
           of the jury system cannot be ignored . . . Such a
           context is presented here, where the powerfully
           incriminating     extrajudicial  statements     of   a
           codefendant, who stands accused side-by-side with
           the defendant, are deliberately spread before the
           jury in a joint trial. Not only are the incriminations
           devastating to the defendant but their credibility is
           inevitably suspect. . . . The unreliability of such
           evidence is intolerably compounded when the
           alleged accomplice, as here, does not testify and
           cannot be tested by cross-examination.

        In response to Bruton, courts approved the practice of
        redacting confessions of non-testifying co-defendants to
        remove references that expressly implicated the
        defendant.

Travers, 768 A.2d at 847 (citations omitted).    After tracing United States

Supreme Court decisions following Bruton, the Travers Court held that




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J-A02036-17

redaction of a non-testifying codefendant’s with neutral pronouns, coupled

with cautionary instructions, would not violate Bruton. Id. at 851.

      Moreover, the Pennsylvania Supreme Court has repeatedly rejected a

“contextual implication theory”—that is, the linkage between the redacted

statement and other evidence to implicate a specific defendant—“as a

blanket rule.” Commonwealth v. Rainey, 928 A.2d 215, 227 (Pa. 2007).

Instead, our Supreme Court instructs that the danger posed by contextual

implication “merely requires the trial court, and the reviewing court, to

balance the interests, i.e., the potential prejudice to the defendant versus

the probative value of the evidence, the possibility of minimizing the

prejudice, and the benefits to the criminal justice system of conducting joint

trials.” Id. at 228 (citation omitted).

      Here, the statement by Wiggins implicating Appellant was redacted

and presented to the jury in the following exchange between the

Commonwealth and Detective David Tyler:

         [Commonwealth:] And question at page 2: “And we’re
         going to ask you a few questions. Tell us about what
         happened that night.” What was Mr. Wiggins' response?

         A “Me and this other person, we hooked up.        They said
         we’re supposed to rob the Rite Aid that night.”


         Q Question: “And how long have you known the other
         person?”

         A Answer: “For a couple weeks now, three to be exact.”




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J-A02036-17


       Q Question: “Okay. All right. Tell us what about how      --
       what was planned or what happened?"

       A Answer: "Well, this person came to me with a plan a
       couple days before we were supposed to do it. They was
       supposed to be at the Rite Aid out of Chester. This person
       told me a tall, fat girl was supposed to be working and a
       short, brown-skinned girl was supposed to be working.”

       Q Question: “At the Rite Aid that night?”

                                    ***
       Q . . . “So the other person parks the car up on just say
       on 10th Street underneath some trees. That’s where you
       guys got out?” Answer?

       A “Yes, sir.”

       Q Question: “And you start walking in?”

       A “Yes, sir.”

       Q Question: “You go in?”

       A “Yes, sir.”

       Q “Where do you go?”

       A “I just start walking around the store down and met up
       in the aisle where the light bulbs was at.”

       Q And this is Detective Collins: “Was anyone else in the
       store? Could you tell if anyone else was in the store that
       wasn’t an employee?”

       A “I mean, I think it was like two customers in the store.
       If people -- it was a man and a woman in the pharmacy.”

       Q And more of a statement, but the question goes,
       “Okay.” And then you ask a question, and you’re
       identified: “So when you guys finally meet back at the light
       bulbs?” Answer?

       A “Yes, sir.”


                                  - 15 -
J-A02036-17



            Q Question: “Was anything said like let’s go get it?"

            A “No, sir. The manager came. He bent down, and went
            to show what lights they had. I grabbed him and said take
            me to the safe. We got into an altercation.”

            Q Question: “How did you grab him?”

            A “From the back of his shoulders like the back of his
            shirt, grip it up his shirt.”

            Q Question: “Did you act like you had anything in his back
            like your two fingers?”

            A “No, sir. Both of my hands were on him.”

            Q Question: “Okay. You told him take me to the safe.”

            A “Yes, sir.”

            Q “And what happens then?”

            A “We start struggling. He gripped me up. I gripped him
            up. Then I pushed him off me. Went to turn and run, and
            I was running, I heard a pop.”

N.T., 2/9/17, at 132-33, 141-42.

      The trial court also issued a cautionary instruction during its charge to

the jury:

            There’s a rule that restricts use by you of the evidence
            offered to show that the Defendant, David Wiggins, made
            a statement concerning the crimes charged.           The
            statement made before trial may be considered as
            evidence only against the Defendant who made that
            statement. Thus, you may consider the statement as
            evidence against the Defendant David Wiggins if you
            believe he made the statement voluntarily. You must not
            consider the statement as evidence against any of the
            other Defendants.



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J-A02036-17

N.T., 2/11/15, at 24.

      We conclude that the redactions to Wiggins’ statement were neutral,

did not expressly implicate Appellant, did not otherwise reveal Appellant’s

identity, and did not suggest that Appellant’s name had been removed.

Thus, the redaction comports with Pennsylvania law, and in conjunction with

the trial court’s cautionary instruction, we have no basis to grant Appellant

relief. Travers, 768 A.2d at 847. To the extent that Appellant relies on the

federal court’s decision Vazquez in support of a contextual implication

theory, that case does not control. See Commonwealth v. Daniels, 104

A.3d 267, 294 (Pa. 2014) (rejecting parties’ reliance on Vazquez as non-

binding decision from another jurisdiction). Therefore, we discern no basis

to disturb the trial court’s refusal to sever the trials of Appellant and

Wiggins.

      In Appellant’s third claim, she claims that she was entitled to a

separate trial from Mahmud. She contends, in a single sentence, that the

evidence of the prior robbery and attempts to rob the Rite Aid store were

inadmissible against her because she was not involved in those incidents.

She further suggests that she suffered prejudice because the jury heard

extensive testimony regarding those incidents and was cast together with

the unsavory characters, including White and Parks, involved in those

incidents. No relief is due.




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J-A02036-17

      There is no dispute the prior incidents were properly admitted against

Mahmud to show knowledge, preparation, planning, and motive related to

the conspiracy initiated by him, White, and Parks. While it is apparent that

Appellant was not known to Mahmud, White, or Parks at the time of the first

three incidents at the Rite Aid store, the prior incidents provided information

necessary to the development of this case and Appellant’s ultimate role in

the robbery at issue at trial.    Specifically, although the first robbery was

successful, the second two attempts were thwarted because employees

recognized White. By the second attempt, the Rite Aid store had posted a

wanted poster of White. Mahmud, White, and Parks then elected to bring in

an additional person, Wiggins, for the next planned robbery.           Wiggins

insisted that Appellant participate. Thus, the admission of the robberies was

arguably proper against Appellant to establish the history of the case and

how she became involved in the robbery of the Rite Aid store.             See

Commonwealth v. Serrano, 61 A.3d 279, 286 (Pa. Super. 2013)

(concluding codefendant’s sales of controlled substance in separate county,

which led to investigation revealing other defendant’s participation in

narcotics trafficking, was admissible against other defendant to show history

of the other defendant’s case).

      Even assuming the evidence regarding Mahmud’s prior bad acts was

not admissible, however, no relief is due. The admissibility or inadmissibility

of the evidence in a separate trial is not determinative. See Housman, 986



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J-A02036-17

A.2d at 834-35 (noting codefendant’s admission of evidence against the

defendant would not have been admissible in a separate trial, but fining no

relief was due because prejudice was de minimis and did not overcome the

factors in favor of the joint trial).    The incidents were easily separable in

time, by the participants of those crimes, and Appellant’s clear lack of

participation in the planning or execution of those crimes.      Moreover, the

evidence presented was not so inflammatory as to render the jury incapable

of deciding fairly the charges against Appellant. Additionally, the trial court

issued a cautionary instruction with respect to Mahmud’s prior bad acts and

that they should not be considered when evaluating the charges against any

other defendant. Therefore, Appellant’s assertion that the trial court erred in

denying severance from Mahmud’s trial lacks merit.

      Appellant’s final claim is that the trial court erred when admitting

evidence of her text messages without sufficient indicia of authenticity. She

argues that no witness testified she authored the inculpatory messages to

her friend, and that there was insufficient circumstantial evidence in the

content of the messages to establish that she sent them. She notes that the

killing of McClay garnered news coverage and the incident at the Rite Aid

store was a matter of public knowledge. We disagree.

      It is well settled that the

         [a]dmission of evidence is within the sound discretion of
         the trial court and will be reversed only upon a showing
         that the trial court clearly abused its discretion.
         Admissibility depends on relevance and probative value.


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        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.

                                    ***

        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.
        Pa.R.E. 901(b)(1).      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.

                                    ***

        [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.

Commonwealth v. Koch, 39 A.3d 996, 1002-03, 1005 (Pa. Super. 2011)

(citations omitted), aff’d by evenly divided Court, 106 A.3d 705 (Pa. 2014).

     Instantly, the string of text messages to and from Appellant’s friend

began with the sender stating, “It’s me your wife Rita.”     The sender then

indicated that she had to “lay low” and asked her friend whether she had

seen the news about the Rite Aid store.      N.T., 2/2/15, at 208-10.      The

sender then stated she “caught a body.”     Id. at 208.    At trial, the friend

testified that she knew Appellant, and they called each other “wife.” These



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messages contained information consistent with a person being involved in

the crime at Rite Aid.     Thus, there was ample circumstantial evidence

supporting the trial court’s determination that the Commonwealth met its

threshold burden of establishing that the text messages were what the

Commonwealth purported them to be, namely, messages from Appellant.

See Koch, 39 A.3d at 1005.          Therefore, Appellant’s challenge to the

authenticity of the inculpatory message fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/8/2017




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