J-S13028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

NATHAN HOWARD

                            Appellant                 No. 1003 WDA 2015


         Appeal from the Judgment of Sentence Entered April 28, 2015
                  In the Court of Common Pleas of Erie County
              Criminal Division at No: CP-25-CR-0001240-2014


BEFORE: LAZARUS, STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY STABILE, J.:                        FILED SEPTEMBER 22, 2016

        Appellant, Nathan Howard, appeals from the judgment of sentence

entered in the Court of Common Pleas of Erie County for his conviction of

criminal conspiracy.1,2 Upon review, we affirm.

        On April 26, 2014, police officers conducted surveillance of the El Patio

Motel in Millcreek Township as part of an investigation of alleged drug

activity.   N.T. Jury Trial, 1/15/15, at 34-36.    Officers received information

that an individual known as “NASS” (Carnell Tinson) had been selling heroin

____________________________________________

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 903(c).
2
  The jury was deadlocked on Appellant’s charges of possession with intent
to deliver, possession of a controlled substance, and possession of drug
paraphernalia. 35 P.S. §§ 780-113(a)(30), (16), (32), respectively.
N.T. Jury Trial - Verdict, 1/20/15, at 5.
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from motel room 123.      Id. at 35.   While conducting surveillance of the

motel, officers observed Appellant and Tinson enter room 123 at 5:07 p.m.

N.T. Jury Trial, 1/16/15, at 17, 18, 23.   At approximately 7:45 p.m., the

officers saw Tinson exit room 123, enter a vehicle, and drive away. Id. at

32-35. Officers followed Tinson but did not apprehend him. Id.

     At approximately 8:45 p.m., police officers executed a search of room

123 pursuant to a warrant. N.T. Jury Trial, 1/15/15, at 37. Inside the room

the officers found Appellant, another individual, an envelope containing a

quantity of heroin approximately half the size of a golf ball in plain view on

the bed, a digital scale, lottery tickets, and a duffel bag belonging to

Appellant. Id. at 37, 39-40. Inside of the duffel bag was a denim jacket

with $1,610 in cash in one of the pockets.     Id.   Detective Adam Hardner

found a cell phone in plain view in a bedroom. N.T. Jury Trial, 1/16/15, at

51-53. Appellant admitted the cell phone belonged to him and consented to

a search of the phone. Id.

     James Krayeski, a police informant, testified that he had purchased

heroin from Tinson on several prior occasions and had contacted Tinson by

cell phone to arrange the transactions. Id. at 4-6. Krayeski had Tinson’s

cell number and gave it to the officers.      Id. 4-6, 8.    There were two

incoming text messages on Appellant’s cell phone originating from Tinson’s

cell phone number. Id. at 53-57. When Detective Hardner read the text

messages out loud to Appellant, Appellant stated, “that mother fucker set

me up.” Id. at 54. These text messages, sent at 8:31 p.m. and 8:42 p.m.,

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stated, respectively, “flush the work” and “they are out back behind the

building.”   Id. at 57.   Detective Hardner testified that, in his experience,

“work” is a term that refers to drugs. Id. Lieutenant Michael Nolan of the

Erie Police Department Drug and Vice Unit testified that drug dealers

typically accumulate large amounts of cash and use lottery tickets as

packing material for heroin. N.T. Jury Trial, 1/15/15, at 46-47). Detective

Hardner testified that, based on his experience, the text message “flush the

work” would mean “flush the drugs down the toilet because the police are

there.” N.T. Jury Trial, 1/16/15, at 57.

      After being found guilty of criminal conspiracy, Appellant filed a post-

sentence motion for a new trial. The trial court denied Appellant’s motion

and filed a memorandum opinion on June 4, 2015.              Appellant timely

appealed. The trial court adopted its June 4, 2015 memorandum opinion as

its Pa.R.C.P. 1925(a) opinion.

      On appeal, Appellant presents two issues for our review.

      1) The jury’s verdict in this case was against the weight of the
         evidence.

      2) The court erred in admitting the text messages since they
         were not authenticated by law enforcement as being those of
         the defendant in accordance with Pennsylvania Rule of
         Evidence 901.

Appellant’s Brief at 2.

      In his challenge to the weight of the evidence, Appellant argues the

evidence showed only that he was present in the motel room when the



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search warrant was executed and that the text message stating “flush the

work” did not prove Appellant was aware the drugs were in the room.

Appellant’s Brief at 6. Appellant further argues that since the other person

in the room with him was not charged and the jury was deadlocked on the

charge of possession with intent to deliver while convicting him of conspiracy

for the same crime, the verdict should shock the conscience of this Court.

Appellant’s Brief at 6.

      Our standard of review when addressing a weight claim is well settled.

      A motion for a new trial alleging that the verdict was against the
      weight of the evidence is addressed to the discretion of the trial
      court. An appellate court, therefore, reviews the exercise of
      discretion, not the underlying question whether the verdict is
      against the weight of the evidence. The factfinder is free to
      believe all, part, or none of the evidence and to determine the
      credibility of the witnesses. The trial court will award a new trial
      only when the jury’s verdict is so contrary to the evidence as to
      shock one’s sense of justice.        In determining whether this
      standard has been met, appellate review is limited to whether
      the trial judge’s discretion was properly exercised, and relief will
      only be granted where the facts and inferences of record disclose
      a palpable abuse of discretion. Thus, the trial court’s denial of a
      motion for a new trial based on a weight of the evidence claim is
      the least assailable of its rulings.

Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008) (citations

omitted).




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        Here, the trial court concluded the jury’s verdict was not against the

weight of the evidence so as to shock one’s sense of justice reasoning,

              The evidence at trial established that a black male known
        as NASS (Carnell Tinson) was dealing heroin from Room 123 of
        the El Patio Motel. On April 26, 2014, [Appellant] and Tinson
        entered the room together and approximately 2 ½ hours later
        Tinson left and drove away in a vehicle. One hour later the
        police executed a search warrant for the room. The police found
        a baggie of heroin in plain view on a bed, a digital scale, lottery
        tickets for packaging heroin, and $1,600.00 in [Appellant]’s
        duffle bag in the room. A cell phone was recovered. It was
        [Appellant]’s and contained two (2) recent text messages “Flush
        the work” (meaning the heroin) and “They R Out Back Behind
        the Building[”] (referring to the police). The phone number the
        text originated from belonged to NASS (Tinson) and had been
        used as a contact number to facilitate prior drug transactions.

Trial Court Opinion (T.C.O.), 6/4/15, at 1.

        The facts of record support the trial court’s conclusion that the jury

could reasonably infer Appellant’s guilt from this evidence. Id. As such, the

trial court did not abuse its discretion in determining that the jury’s verdict

was not against the weight of the evidence so as to shock one’s sense of

justice.

        Appellant next argues the trial court erred in admitting text messages

from Appellant’s cell phone into evidence as they were not properly

authenticated under Pa.R.E. No. 901.       Appellant claims that without these

messages the Commonwealth could not prove a criminal conspiracy.              The

messages received on Appellant’s cell phone from Tinson’s cell phone stated,

“flush the work” and “they are in the back of the building.” Appellant’s Brief

at 7.


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       Our standard of review for admissibility of evidence is well-established.

       The admission of evidence is solely within the province of the
       trial court, and a decision thereto will not be disturbed absent a
       showing of an abuse of discretion. An abuse of discretion is not
       merely an error of judgment, but if in reaching a conclusion the
       law is overridden or misapplied, or the judgment exercised is
       manifestly unreasonable, or the result of partiality, prejudice,
       bias[,] or ill-will discretion . . . is abused.

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (citations and

quotation marks omitted).

       As Appellant correctly notes, this Court in Commonwealth v. Koch,

39 A.3d 996 (Pa. Super. 2011),3 in an apparent case of first impression,

addressed authentication of a text message as a prerequisite to its

admissibility into evidence.        We held that emails and text messages are

documents subject to the same requirements for authenticity as non-

electronic documents generally. The consistent difficulty in authenticating e-

mails and text messages is establishing authorship, as it is generally

conceded that cellular phones are not always exclusively used by the person

to whom the phone number is assigned.            Accordingly, authentication of

____________________________________________


3
  In Koch, in a unanimous published opinion ordering a new trial, this Court
reversed the trial court’s decision to admit the contested text messages as
sufficiently authenticated and not as inadmissible hearsay. Our Supreme
Court accepted the Commonwealth’s appeal to address the question of the
“proper manner in which cell phone text messages can be authenticated and
whether     and when such messages are              inadmissible  hearsay.”
Commonwealth v. Koch, 106 A.3d 705, 706 (Pa. 2014) (plurality) (per
curiam). Our Supreme Court evenly divided and affirmed the decision of this
Court.



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electronic communications requires more than confirmation that the phone

number or address belongs to a particular person. Authentication requires

some evidence tending to show the identity of the defendant as the person

who either sent or received the message(s).        This may be shown through

circumstantial evidence. In Koch, we held that the Commonwealth failed to

authenticate the text messages in question, as there were no contextual

clues in the messages that revealed that the defendant was the sender. We

further concluded that the defendant’s physical proximity to the phone was

of no probative value as to whether she authored the messages days and

weeks before.     Significantly, the Commonwealth conceded it could not

confirm that the defendant was the author of the text messages and

acknowledged that the defendant did not write some of the messages that

referred to her in the third person.       The Commonwealth was able to

establish only that it accurately transcribed the text messages from the

defendant’s phone.   Without some evidence, even circumstantial, that the

defendant sent the messages, we held that the trial court in Koch

improperly    admitted   the   messages,   since    they   were   not   properly

authenticated.

      In its memorandum opinion, the trial court held that the text

messages were properly admitted into evidence based upon “the phone

numbers, relation of the parties, attendant circumstances before and after

the texts and distinctive characteristics of the texts in light of the events

occurring.”   T.C.O., 6/4/15, at 1 n.1.    We find no error as to sufficient

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authenticity of the text messages as a prerequisite to their admission into

evidence in this case. Appellant does not dispute that the messages at issue

were sent from the phone owned by Tinson, a known drug dealer. Nor does

Appellant dispute the meaning of the messages intended to relate to the

recipient that the drugs should be flushed down the toilet, as the police were

outside the building. The question remaining is whether the text messages

were intended for and received by Appellant.        Sufficient circumstantial

evidence exists here to indicate that Appellant was the intended recipient

and in fact the recipient of the text messages. The police previously

observed Tinson, a known drug dealer, enter the motel room with Appellant.

A short time later, Tinson left and thereafter, pursuant to a warrant, the

room was searched by police. Drugs and a cell phone admittedly owned by

Appellant were found in the room. When police read the subject messages

to Appellant, he did not deny they were intended for him, but rather, tacitly

admitted receipt of the messages by his response that Tinson had set him

up.   Moreover, there is no evidence that anyone other than Appellant and

one other person were in the motel room during the relevant time period.

The temporal proximity of these events, together with Appellant’s admission

of ownership and response to the text messages present sufficient

circumstantial evidence to authenticate the text messages as intended for

and received by Appellant immediately prior to the police entering the motel

room. Although Appellant’s second issue as phrased does not contend the

trial court erred by admitting text messages that constituted inadmissible

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hearsay, Appellant did raise the argument in post-trial motions and

developed the issue in the argument section of his brief.                 Because the

hearsay issue is fairly contemplated by the overall issue of admissibility of

the test messages, we shall address his hearsay argument. See Pa.R.A.P.

2116(a) (“The statement [of questions involved] will be deemed to include

every subsidiary question fairly comprised therein.”).4

       Here, the trial court found the texts were admissible as a co-

conspirator’s statement. See Commonwealth v. Stocker, 622 A.2d 333,

344 (Pa. Super. 1993) (“The co-conspirator exception applies to hearsay

statements made during the course of, and in furtherance of a conspiracy.

The foundation required is proof, by a fair preponderance of the evidence,

that a conspiracy existed.”).        Howard argues that the Commonwealth had

not met its burden of demonstrating a conspiracy existed before introducing

the texts.    However, the record shows that Howard and Tinson were seen

entering the motel together, that Howard remained in the motel room when

Tinson left, and that Howard acknowledged the text messages were intended

for him.     These factors, combined with the totality of the circumstances

surrounding      the    text   conversation,     were   sufficient   to    meet   the

preponderance of the evidence burden of proof of a conspiracy.
____________________________________________


4
  Further, we note Appellant was not ordered to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he did
not do so.




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       The text messages were properly authenticated.        Further, the text

messages at issue were admissible as an exception to the rule against

hearsay since they were statements made by Tinson, a co-conspirator, in

furtherance of the conspiracy to possess heroin with intent to deliver. We

find no error in the trial court’s admission of the text messages.

       Judgment of sentence affirmed.5


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2016




____________________________________________


5
  Following submission of briefs, Appellant filed a pro se Motion for Stay,
suggesting his appeal “should be put on stay, and the appellant should be
appointed “New Counsel, someone who will represent the appellant
zealously.” Motion for Stay, 6/27/16, at 2. In his motion, Appellant raises
issues relating to actions taken by trial and appellate counsel. Absent
circumstances that do not exist here, “claims of ineffective assistance of
counsel are to be deferred to PCRA review . . . and such claims should not
be reviewed upon direct appeal.” Commonwealth v. Holmes, 79 A.3d
562, 576 (Pa. 2013) (reaffirming Commonwealth v. Grant, 813 A.2d 726
(Pa. 2002). Therefore, we deny Appellant’s Motion for Stay.




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