                                [J-58-2016]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                             EASTERN DISTRICT

    SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,               :    No. 709 CAP
                                            :
                   Appellee                 :    Appeal from the Judgment of Sentence
                                            :    imposed on October 9, 2014 in the
                                            :    Court of Common Pleas, York County,
             v.                             :    Criminal Division at No. CP-67-CR-
                                            :    0006857.
                                            :
TIMOTHY MATTHEW JACOBY,                     :    SUBMITTED: May 10, 2016
                                            :
                   Appellant                :

                                      OPINION

JUSTICE WECHT1                                         DECIDED: September 28, 2017
      On October 9, 2014, Timothy Matthew Jacoby was sentenced to death after a

jury convicted him of first-degree murder, burglary, tampering with physical evidence,

and robbery.2 In this automatic direct appeal, we affirm the convictions and the death

sentence.

                                   I. Background

      On March 31, 2010, at 2:52 p.m., the York County 911 call center received a call

that originated from Monica Schmeyer’s residence on Trone Road in York,

Pennsylvania. When the police arrived, they found Monica Schmeyer dead on her living

room floor. Blood droplets and stains surrounded her body. The telephone was off the



1
      This case was reassigned to this author.
2
      18 Pa.C.S. §§ 2502(a), 3502(a), 4910(1), and 3701(a)(1)(i), respectively.
hook; there was blood on the 9 and the 1. There was also a .32 caliber Speer branded

shell casing on the floor near Monica Schmeyer’s body.

      Jacoby eventually became a suspect in the murder. The following is a summary

of the evidence that the Commonwealth presented to prove that Jacoby killed Monica

Schmeyer.

      In 2010, Jacoby was a member of an informal group of individuals that gathered

at a Hooters restaurant located on Route 30 in York County, Pennsylvania. The group

called themselves the “Orange Shorts Society” (“OSS”), a moniker derived from the

uniforms worn by Hooters’ waitresses. The members of the OSS included Jacoby,

Sarah Powell (Jacoby’s fiancée at the time), Dr. Jon Schmeyer, and Pete Lobianco.

      At some of these informal meetings, Dr. Schmeyer talked about his divorce from,

and the current state of affairs with, his ex-wife, Monica Schmeyer. Dr. Schmeyer told

the group that he paid Monica $1,700 in alimony each month, in cash. Monica was

known to have a habit of keeping her cash in white envelopes secreted in various

places around her home.     Dr. Schmeyer also mentioned that their daughter, Elsa

Schmeyer, would be travelling to Japan in March of 2010.

      There was an OSS meeting scheduled for March 31, 2010. On that date, at

approximately 2:00 p.m., Dr. Schmeyer met with Sarah Powell to discuss certain

financial matters related to foreign currency. During the meeting, Dr. Schmeyer sent a

text message to Jacoby, but received no return message. At 3:00 p.m., Dr. Schmeyer

and Powell proceeded to the Hooters for the scheduled OSS meeting. Jacoby never

showed for this meeting, even though members of the club—including his fiancée—

expected him to attend. Powell tried unsuccessfully to call Jacoby. Powell eventually

left the restaurant to return to their shared home. Jacoby was not there either. Jacoby




                                    [J-58-2016] - 2
finally returned home at approximately 6:00 p.m. He told Powell that he had been at

work.

        Around the same time that the OSS members were gathering, in a different part

of town, William Kagarise exited his house on Snyder Mill Road, and walked toward his

barn to feed his animals. As Kagarise walked to the barn, he looked up and saw a

white male walking on Snyder Mill Road with his head down. The male was walking

toward Trone Road, which is where Monica Schmeyer lived. Approximately twenty to

thirty minutes later, Kagarise saw the same white male walking on Snyder Mill Road,

but this time away from Trone Road. The man was carrying a white envelope in one

hand, which Kagarise did not observe when he first saw the man.

        Kagarise described the man as approximately five feet, ten inches tall, with short

hair. Kagarise noted that the man was walking fast, and with a purpose, an unusual

behavior for someone at that time of the day in that part of town. Kagarise had never

seen the man before that day.

        Anthony Crawford also lived on Snyder Mill Road. On the date in question,

Crawford saw a silver van parked along Snyder Mill Road at approximately 4:30 or 5:00

p.m. He also saw a white male walking toward the van. Police later investigated the

area and found two sets of tire tracks in the grassy area where Crawford saw the van.

Using surveillance video from a local bank located minutes from Trone Road, the police

were able to determine that the same van had passed the bank headed in the general

direction of Monica Schmeyer’s residence at about 2:38 p.m., and passed in the

opposite direction at approximately 2:59 pm. The police observed the same van head

again towards Trone Road at 3:56 p.m., and then return from that direction at 4:57 p.m.

        The van belonged to a company called Armstrong World Industries. In 2010,

both Stanley Knight and Jacoby worked for the company. Knight identified the van from




                                      [J-58-2016] - 3
the surveillance videos. He explained that the van had been customized so that work-

related materials could fit into it.       Knight was able to observe some of the

customizations to the van in the video, and positively identify the van. Knight also

indicated that both he and Jacoby had used the van in the past, and that Jacoby had

access to the van on the date in question.

       When an employee at Armstrong World Industries used the van, he or she was

required to sign out the van on a calendar that was posted in the lot where the van was

parked. However, the March 2010 page was missing, which Knight found to be highly

unusual. Nonetheless, Jacoby later submitted an expense report on March 31, 2010,

which indicated that he used the van at some time between March 26 and March 31.

Knight also noted that Armstrong World Industries did not do business in the area

surrounding Monica Schmeyer’s residence.

       Dr. Samuel Land autopsied Monica Schmeyer, and concluded that she died from

a single gunshot wound above her left ear. Dr. Land found a bullet and a fragment

inside of Monica Schmeyer’s skull. The doctor also observed bruising and lacerations

to her brow, face, and chin. Dr. Land determined that these injuries were not consistent

with a single post-death fall to the floor, but instead resulted from repeated strikes to the

head by her assailant, possibly with a firearm.

       When the police processed the crime scene, officers found blood on the bottom

of Monica Schmeyer’s sock and droplets of blood on her pants and bedding. The police

believed that this blood evidence suggested that there was a struggle before she was

killed. Thus, Dr. Land took scrapings from underneath Monica Schmeyer’s fingernails

and submitted them to the police for DNA testing.




                                      [J-58-2016] - 4
       The scrapings were submitted to NMS Labs for Y-STR DNA.3 A sample from

Monica Schmeyer’s left hand produced a full Y-STR profile from a single contributor.

Further testing revealed that Jacoby and all of his male relatives could not be excluded

as the source of the sample. Notably, by all accounts, Monica Schmeyer had never met

Jacoby before her death. Thus, the presence of a Y-STR profile that could not exclude

Jacoby under her fingernails provided police with compelling evidence that Jacoby was

her murderer.

       Corporal David Krumbine, an expert in firearm and tool mark examinations,

inspected the .32 caliber Speer branded cartridge that was found near Monica

Schmeyer’s body. Cpl. Krumbine determined that the cartridge could have been fired

from a Kel-Tec manufactured firearm. The expert also concluded that the bullet and

fragment retrieved from Monica Schmeyer’s skull were consistent with the Speer

cartridge.

       Cpl. Krumbine’s conclusion that the cartridge could have been fired from a Kel-

Tec firearm was important to the police’s effort to identify the killer, because Jacoby was

the registered owner of a Kel-Tec P32 semiautomatic handgun.               However, this

particular weapon was never found, and no one could link the cartridge to the weapon

registered to Jacoby.

       The police were still investigating the murder approximately fifteen months later

when they requested and obtained a search warrant for Jacoby’s residence. On July 6,

2011, the police executed the warrant and found a second-generation Kel-Tec barrel.

The top of that barrel had been ground down to resemble the shape of a first-generation


3
       As set forth in more detail infra, Y-STR DNA analysis is a form of DNA testing
that focuses upon the Y-chromosome and can be used to exclude a male suspect and
his male relatives from being a DNA match to a particular sample.



                                     [J-58-2016] - 5
barrel, which is necessary for the second-generation barrel to fit onto a first-generation

Kel-Tec firearm. Internet purchase records demonstrated that Jacoby had purchased a

second-generation barrel, but this purchase occurred after Monica Schmeyer had been

murdered. Nonetheless, as noted earlier, Jacoby was the registered owner of a first-

generation Kel-Tec firearm, and the barrel that he purchased was not compatible with

the weapon he owned without first being ground down to the correct size.

      Following the search of Jacoby’s residence, the police requested and received a

second search warrant for Jacoby’s parents’ farm and home.4 In part, the police sought

the warrant because Jacoby’s fiancée, Sara Powell, told police officers that Jacoby had

moved his .32 caliber Kel-Tec weapon, which he usually kept under the pillow on his

bed, to his parents’ house. The warrant was executed later the next day.

      At Jacoby’s parents’ house, the police found an empty box for a Kel-Tec P32

first-generation semiautomatic handgun, as well as documentation supporting the

purchase and registration. Jacoby’s signature was affixed to the documentation. The

police also found live .32 caliber Speer ammunition, and a first-generation Kel-Tec

barrel. The police also found a “Desert Eagle” .50 caliber handgun.5

      The police also searched an area of Jacoby’s parents’ farm that was used as a

shooting range. The police examined this area because Jacoby’s brother had informed

officers that he had seen Jacoby using the range to fire a .32 caliber weapon. There,

the police found four .32 caliber Speer spent cartridge casings.



4
      Jacoby challenges the affidavits of probable cause offered in support of both of
these warrants in this direct appeal. We discuss the particulars of those affidavits in our
analyses of Jacoby’s challenges below.
5
      This weapon formed the basis of a persons not to possess firearm charge
against Jacoby. However, the Commonwealth later withdrew this charge.



                                     [J-58-2016] - 6
      Cpl. Krumbine examined the four casings, and compared them to the casing

found next to Monica Schmeyer’s body. He concluded that the casings all had been

fired from the same, but unknown, firearm.        He also ascertained that all of these

cartridges contained the same Speer headstamp as the unspent ammunition found in

Jacoby’s parents’ house.

      Cpl. Krumbine then fired some test shots using the first-generation Kel-Tec barrel

found at Jacoby’s parents’ residence. He noted that the bore of the barrel contained

extensive scratch marks that were intentionally made, and not the result of normal

cleaning. When fired, the weapon left marks on the bullets that were consistent with

marks left on the bullet removed from Monica Schmeyer’s skull, though Cpl. Krumbine

could not conclude definitively that they were fired from the same gun because the

damage to the bore rendered such an exacting analysis impossible.

      On October 9, 2012, the Commonwealth filed an information formally charging

Jacoby with the murder. On June 24, 2013, Jacoby filed a suppression motion seeking

to suppress the evidence obtained as a result of the search warrants executed on his

home and on his parents’ home and property. Jacoby further challenged a separate

search warrant used by the police to secure a DNA sample from him for comparison to

the genetic material found under Monica Schmeyer’s fingernails.           Jacoby also

requested a Frye6 hearing, relative to the Commonwealth’s Y-STR DNA analysis.

Following a July 2, 2014 hearing, the trial court denied the motions.

      On September 29, 2014, Jacoby proceeded to a jury trial. On October 8, 2014,

the jury found Jacoby guilty of first-degree murder, burglary, tampering with physical

evidence, and robbery. At the conclusion of the penalty phase, the jury recommended a


6
      See Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).



                                     [J-58-2016] - 7
death sentence.      On October 9, 2014, the trial court formally sentenced Jacoby to

death.

         On October 20, 2014, Jacoby filed a timely post-sentence motion,7 which the trial

court denied on March 17, 2015. On July 23, 2015, Jacoby filed a petition seeking

permission to file an appeal nunc pro tunc with the trial court, along with a

contemporaneous nunc pro tunc notice of appeal.               The trial court granted the

permission on the same day.8

                                          II. Issues

         Presently, Jacoby raises the following seven issues, which we have restated and

reordered for ease of discussion and disposition:

         I.     Whether the evidence presented, viewed in the light most favorable
                to the Commonwealth, was insufficient to prove beyond a
                reasonable doubt [Jacoby] guilty of first[-]degree murder, burglary[,]
                and robbery?

         II.    Whether the trial court erred in denying [Jacoby’s] request for a
                new trial where the first[-]degree murder, burglary[,] and robbery
                verdicts were contrary to the weight of the evidence and doshock
                one’s sense of justice?

         III.   Whether the warrant seeking to search [Jacoby’s] residence at
                1719 West Princess Street, York[,] Pennsylvania[,] lacked probable
                cause[:]

                1.     Whether there was insufficient information contained
                       within the search warrant to establish probable cause
                       that [Jacoby] was a suspect in the homicide?

                2.     Whether the search warrant lack[ed] probable cause
                       because it [did] not specifically set forth facts and
                       circumstances to support the belief that the murder


7
      The tenth day after sentencing fell on Sunday, October 19, 2014. Thus, Jacoby’s
motion, filed the next day, was timely. See generally 1 Pa.C.S. § 1908.
8
         Both Jacoby and the trial court complied with Pa.R.A.P. 1925.



                                       [J-58-2016] - 8
                      weapon [would have been] found in [Jacoby’s]
                      residence.

                3.    Whether the information in the affidavit of probable
                      cause [was] stale.

         IV.    Whether the warrant seeking to search [Jacoby’s] parents’
                residence at 2440 Meeting House Road, Spring Grove,
                Pennsylvania[,] lacked probable cause?

         V.     Whether the warrant to search [Jacoby] for a DNA sample lacked
                probable cause?

         VI.    Whether the trial court erred in denying [Jacoby’s] request for a
                Frye hearing and admitted the Y[-]STR DNA evidence, where such
                evidence is unreliable?

         VII.   Whether the evidence presented during the penalty phase, viewed
                in the light most favorable to the Commonwealth, was insufficient to
                support a sentence of death?

Brief for Jacoby at 5-6 (some material omitted; capitalization modified).

                             III. Sufficiency of Trial Evidence

         Jacoby first challenges the sufficiency of the evidence proffered by the

Commonwealth to prove him guilty of first-degree murder, burglary, and robbery. In

reviewing sufficiency of evidence claims, “we determine ‘whether the evidence admitted

at trial, and all the reasonable inferences derived therefrom viewed in favor of the

Commonwealth as verdict winner, supports the jury’s findings of all the elements of the

offense beyond a reasonable doubt.’” Commonwealth v. Cash, 137 A.3d 1262, 1269

(Pa. 2016) (quoting Commonwealth v. Smith, 985 A.2d 886, 894-95 (Pa. 2009)). A

sufficiency challenge is a pure question of law. Thus, our standard of review is de novo

and our scope of review is plenary. Commonwealth v. Sanchez, 82 A.3d 943, 967 (Pa.

2013).

         We begin with Jacoby’s challenge to his first-degree murder conviction. Jacoby

argues that the Commonwealth failed to prove, beyond a reasonable doubt, that he

killed Monica Schmeyer. Brief for Jacoby at 48. Essentially, Jacoby claims that neither


                                       [J-58-2016] - 9
the Commonwealth’s ballistics evidence nor its DNA evidence was sufficient to prove

identity, either alone or when combined. Jacoby maintains that the remaining evidence

consisted of nothing more than the creation of a timeline that was “so inconclusive that

a jury could not draw a probability of fact from it.” Id. at 51. The Commonwealth

counters that various pieces of evidence permitted the jury to infer that Jacoby was the

killer, even if the jury disregarded entirely its timeline evidence. See generally Brief for

the Commonwealth at 66-67.

       To sustain a conviction for first-degree murder, the Commonwealth must

establish beyond a reasonable doubt that: (1) a human being was unlawfully killed; (2)

the defendant was responsible for the killing; and (3) the defendant acted with malice

and the specific intent to kill. Sanchez, 82 A.3d at 967 (citation omitted). As noted

above, Jacoby challenges generally the Commonwealth’s proof identifying him as the

killer, and not whether the Commonwealth established the other elements of murder.

Regardless of his specific argument, “[i]n all cases where a death sentence has been

imposed, this Court is required to conduct an independent review of the sufficiency of

the evidence supporting a first-degree murder conviction.” Commonwealth v. Perez, 93

A.3d 829, 840 (Pa. 2014) (internal quotation marks and citation omitted). Thus, we will

review briefly the evidence in support of the other elements of first-degree murder.

       At trial, the Commonwealth called Dr. Land, who testified that Monica Schmeyer

died from a gunshot wound to her head, with the point of entry being just above her left

ear. Dr. Land also noted that she had bruises around both of her eyes, her right cheek,

and left chin, as well as various skin tears around her mouth. In our view, this is

sufficient evidence to show that the victim was killed unlawfully by someone with a

specific intent to kill. See Commonwealth v. Mattison, 82 A.3d 386, 392 (Pa. 2013)

(noting that “[s]pecific intent to kill can be established through circumstantial evidence,




                                     [J-58-2016] - 10
such as the use of a deadly weapon on a vital part of the victim’s body”) (citing

Commonwealth v. Rega, 933 A.2d 997, 1009 (Pa. 2007)).

      We now focus upon Jacoby’s specific identity challenge. The Commonwealth

produced several witnesses at trial to establish Jacoby’s identity as the murderer. Dr.

Schmeyer testified that he met Jacoby and the other members of the OSS club at the

local Hooters restaurant. Dr. Schmeyer also testified that he had been paying alimony

to Monica Schmeyer in the amount of $1,700 per month in twenty-dollar bills.         Dr.

Schmeyer’s younger daughter, Elsa, was living with Monica Schmeyer at the time.

However, Elsa was in Japan on the actual date of the murder. Dr. Schmeyer explained

at trial that he may have spoken about the alimony and Elsa’s trip at the OSS meetings.

Pete Lobianco, another member of the OSS, indicated at trial that he learned both of the

alimony arrangement and Elsa’s trip at OSS meetings, at which Jacoby usually was

present. Both Dr. Schmeyer and Lobianco testified that Jacoby was not at the March

31, 2010 OSS meeting, which corresponded generally with the time that Monica

Schmeyer was killed.

      In addition, William Kagarise testified that he saw a white male matching

Jacoby’s description walking with his head down in the direction of Trone Road on the

day of the murder. Kagarise saw the same person walking in the opposite direction

twenty to thirty minutes later, carrying a white envelope that he did not have the first

time that Kagarise saw him. Kagarise testified that he waved at the person and greeted

him. The man only nodded, kept his head down, and passed by. Officer Jerry Knouse

testified at trial that, when he was inside Monica Schmeyer’s home after the murder, he

observed several white envelopes containing various amounts of money.

      Anthony Crawford testified that he observed a silver van pull onto the grass on

Snyder Mill Road between 4:30 and 5:00 p.m. on the day in question, and saw a white




                                    [J-58-2016] - 11
male walking in the direction of the van. Police located two sets of tire tracks on the

grass in this location. Additionally, the bank’s surveillance video showed a silver cargo

van driving in the direction of Trone Road at about 2:38 p.m., and driving away at about

2:59 p.m. The same van appeared on the video at approximately 3:56 p.m. heading

toward Trone Road, and heading away from that direction at 4:57 p.m. Stanley Knight,

Jacoby’s co-worker, identified the van in the surveillance video and explained that

Jacoby had access to the van. When the police inspected the calendar that was used

as a sign-out sheet for the van, they found that the March page had been removed from

the calendar. No one could explain why that page was missing. However, Jacoby

submitted an expense report for reimbursement for gas for the van during March 26 and

March 31, 2010.

      Cpl. Krumbine testified as an expert in firearms and tool mark examinations. He

explained to the jury that the .32 caliber shell casing that was found at the murder scene

was consistent with the unspent ammunition that was found in a bedroom in Jacoby’s

parents’ home. Moreover, the casing was discharged from the same firearm that was

used to fire the same size ammunition at the shooting range at Jacoby’s parents’ house.

The search warrant executed on Jacoby’s parents’ house revealed an empty box for a

.32 caliber Kel-Tec weapon and documentation proving that Jacoby purchased the

weapon. These two items were found in the same bedroom where the unspent .32

caliber ammunition was found.

      As noted earlier, the police obtained scrapings from underneath Monica

Schmeyer’s fingernails for DNA testing. Y-STR DNA testing revealed a DNA profile

from under the nails that did not belong to Monica Schmeyer.              Testing further

determined that Jacoby, as well as all males in his paternal lineage, could not be

excluded as the contributor of the sample.




                                    [J-58-2016] - 12
       As the ultimate finder of fact, the jury was free to believe some, all, or none of the

Commonwealth’s evidence. The jury also was free to resolve any inconsistencies or

discrepancies in the testimony in either party’s favor. See generally Commonwealth v.

Ramathal, 33 A.3d 602, 607 (Pa. 2011) (explaining that “[t]he Commonwealth may

sustain its burden of proof by means of wholly circumstantial evidence, and the jury,

which passes upon the weight and credibility of each witness’s testimony, is free to

believe all, part, or none of the evidence”). Here, the evidence supported the jury’s

determination that Jacoby drove his employer’s van to the area of the victim’s

residence, parked a distance away, walked to the residence, committed the murder,

returned to the vehicle, and drove away. The testimony regarding the customized van

belonging to Jacoby’s employer, combined with the testimony concerning the shell

casing, and Jacoby’s knowledge that Monica Schmeyer would be alone and usually

kept cash on hand was more than sufficient, when viewed in the light most favorable to

the Commonwealth, to prove that Jacoby was the person who committed the murder.

The evidence supports the first-degree murder conviction, and Jacoby is not entitled to

relief on this claim.

       Jacoby next claims that the Commonwealth presented insufficient evidence to

sustain his burglary conviction. Specifically, Jacoby asserts that the Commonwealth

failed to prove that it was Jacoby who had entered the residence and did so with intent

to commit a crime therein. Brief for Jacoby at 52. To sustain a burglary conviction, “the

Commonwealth is required to prove beyond a reasonable doubt that the offender

entered the premises with the contemporaneous intent of committing a crime therein, at

a time when he or she was not licensed or privileged to enter.” Sanchez, 82 A.3d at

973.




                                      [J-58-2016] - 13
        Regarding his claim that the Commonwealth failed to prove that he was the

actor, Jacoby incorporates by reference in his brief his identity argument in his

challenge to his first-degree murder conviction. We reject the same argument for the

reasons set forth in our preceding analysis.

        Jacoby next contends that the Commonwealth did not prove that he entered the

residence with the intent to commit a crime once inside.          Jacoby relies upon two

Superior Court opinions in support of this argument: Commonwealth v. Willetts, 419

A.2d 1280 (Pa. Super. 1980), and Commonwealth v. Crowson, 405 A.2d 1295 (Pa.

Super. 1979) (per curiam). Neither case affords him any form of relief.

        In Willetts, Willetts was convicted of attempted burglary and theft by unlawful

taking. The theft conviction stemmed from Willetts being accused of stealing a van

belonging to a business.     The Commonwealth presented eyewitness testimony that

Willetts was seen climbing in and out of, and kicking the van in question, that the van

was stolen, and that a search of Willetts’ person incident to his arrest yielded a map and

a business card that was taken from the stolen van. Nevertheless, the Superior Court

concluded that there was insufficient evidence of theft because “[t]here was no

testimony placing [Willetts] in the vicinity of the service station from which the van was

stolen, nor did anyone see [Willetts] operate the van . . . [and Willetts’] activity around

the van did not evidence [] dominion and control over the vehicle.” Willetts, 419 A.2d at

1282.

        Likewise, in Crowson, the Superior Court reversed Crowson’s burglary

conviction.   Specifically, the panel concluded that “there [was] no evidence that

[Crowson] entered the [victim’s] residence surreptitiously or by force. In fact, there is no

evidence at all regarding the manner of entry by [Crowson] . . . [or] about the

circumstances regarding [the] entry.” Crowson, 405 A.2d at 1296. The Superior Court




                                     [J-58-2016] - 14
rejected the Commonwealth’s position that “specific intent to commit a crime can be

inferred solely from the commission of a crime within the entered structure.” Id. at 1296-

97. Therefore, the intermediate court concluded that the Commonwealth had failed to

provide sufficient evidence that Crowson’s entry into the residence in question was

done with the specific intent to commit a crime. Id. at 1297.

      In this case, as noted above, the Commonwealth provided evidence that Jacoby

was inside Monica Schmeyer’s home, and was in possession of a .32 caliber firearm.

The Commonwealth also established that Jacoby was seen by William Kagarise walking

from the direction of the home with a white envelope in his hand. The police noted that

Monica Schmeyer kept envelopes containing cash inside her home.                           The

Commonwealth’s evidence also established that Jacoby learned of this practice, and

that Elsa Schmeyer would not be in the home on the day that he committed the murder.

The evidence warranted the jury to infer that Jacoby, at a minimum, entered the home

with the intent to commit at least a theft. Unlike Willetts, the Commonwealth produced

evidence that placed Jacoby near the crime scene around the time of the 911 call.

Furthermore, unlike Crowson, the Commonwealth introduced evidence that Jacoby and

Monica Schmeyer did not know each other prior to the murder. From this information,

the jury was free to conclude that Jacoby was not licensed or privileged to enter, and

that he gained entry with the intent to commit a crime. Hence, the jury was provided

with circumstantial evidence by which to evaluate the circumstances of the entry, a

factor absent in Crowson.       The evidence was sufficient to sustain the burglary

conviction.

      Next,   Jacoby    challenges    his   robbery     conviction,   contending   that   the

Commonwealth’s evidence was insufficient to prove that he committed a theft for

purposes of the offense. See Brief for Jacoby at 54. To convict a person of robbery, as




                                     [J-58-2016] - 15
is relevant to this case, the Commonwealth must prove that the person inflicted serious

bodily injury upon another person in the course of committing a theft. 18 Pa.C.S. §

3701(a)(1)(i).

       The Commonwealth demonstrated, through circumstantial evidence, that Jacoby

was aware that Dr. Schmeyer paid alimony to Monica Schmeyer in cash, and that she

would be home alone on the date in question. The evidence also established that

Monica Schmeyer secreted her money in white envelopes that she placed around her

house. Various witnesses established that Jacoby was seen going to and away from

her residence on the date and at the time of the murder. More importantly, William

Kagarise saw Jacoby coming from the residence carrying a white envelope identical to

those in which Monica Schmeyer kept her money. Undoubtedly, the jury could infer

from this evidence that Jacoby stole cash from Monica Schmeyer in the course of

assaulting and killing her. Jacoby’s argument to the contrary fails.

                              IV. Weight of the Evidence

       Next, Jacoby alleges that the verdict was against the weight of the evidence,

asserting, inter alia, that the “physical evidence presented by the Commonwealth

disputes the Commonwealth’s own theory of the case.” Brief for Jacoby at 57. Jacoby

highlights minor inconsistencies between the surveillance video and the testimony of

various Commonwealth witnesses. Jacoby notes that the Commonwealth’s surveillance

video shows the van driving to and from the direction of Trone Road within a span of

only twenty-one minutes. He further points out that a detective at trial testified that it

takes approximately four minutes to drive from the location of the surveillance video to

Snyder Mill Road. A detective also approximated that it would take nine minutes to walk

from Snyder Mill Road to Monica Schmeyer’s residence. Thus, Jacoby contends, the

Commonwealth’s own witnesses established that it would have taken him at least




                                     [J-58-2016] - 16
twenty-six minutes to complete the drive and walk to the residence, and back. This

calculation does not even include any time spent inside the residence. Finally, Jacoby

identifies other inconsistencies in the timeline testimony, such as the conflict between

William Kagarise’s statement that Jacoby walked back from the Trone Road area

between 3:00 and 3:15 p.m. and Anthony Crawford’s assertion that he saw Jacoby

coming from that area at approximately 5:00 p.m., and with the surveillance video

showing the van leaving that area at 2:50 p.m.

      The Commonwealth counters Jacoby’s argument, maintaining that the evidence

pertaining to the location of the van and the eyewitness testimony was introduced for

the purpose of establishing Jacoby’s presence in the area of Monica Schmeyer’s home

at the time of the murder.     Moreover, the “evidence shows that [Jacoby] had the

opportunity to commit the home-invasion robbery that culminated in Monica Schmeyer’s

murder.” Brief for the Commonwealth at 77. Although there were facial inconsistencies,

the Commonwealth argues that the jury was free to use the evidence for these two

purposes.

      “A motion for a new trial based on a claim that the verdict is against the weight of

the evidence is addressed to the discretion of the trial court.” Commonwealth v. Clay,

64 A.3d 1049, 1054-55 (Pa. 2013). “A new trial should not be granted because of a

mere conflict in the testimony or because the judge on the same facts would have

arrived at a different conclusion.” Id. at 1055. When a trial court considers a motion for

a new trial based upon a weight of the evidence claim, the trial court may award relief

only “when the jury’s verdict is so contrary to the evidence as to shock one’s sense of

justice and the award of a new trial is imperative so that right may be given another

opportunity to prevail.” Id. The inquiry is not the same for an appellate court. Rather,

when an appellate court reviews a weight claim, the court is reviewing the exercise of




                                    [J-58-2016] - 17
discretion by the trial court, not the underlying question of whether the verdict was

against the weight of the evidence. Id. at 1054. The appellate court reviews a weight

claim using an abuse of discretion standard. Id. at 1057.

       At trial, the jury was the ultimate fact-finder and the sole arbiter of the credibility

of each of the witnesses. “Issues of witness credibility include questions of inconsistent

testimony and improper motive.”       Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa.

2011) (citation omitted).     A jury is entitled to resolve any inconsistences in the

Commonwealth’s evidence in the manner that it sees fit. See Commonwealth v. Rivera,

983 A.2d 1211, 1220 (Pa. 2009) (stating that “the trier of fact, in passing upon the

credibility of witnesses, is free to believe all, part, or none of the evidence”) (citation

omitted).

       As noted, inconsistencies in eyewitness testimony are not sufficient to warrant a

new trial on grounds that the verdict was against the weight of the evidence. Clay, 64

A.3d at 1055.      Although Jacoby has highlighted various inconsistencies in the

Commonwealth’s evidence, the jury was permitted to reject Anthony Crawford’s

testimony that Jacoby passed by at a much later time than other evidence suggested,

and to resolve any minor inconsistencies between Kagarise’s testimony and the

surveillance video in the Commonwealth’s favor.            Assessing all of the evidence

according to the governing principles cited above, we simply cannot conclude that the

trial court abused its discretion when it concluded that the jury’s verdict did not shock its

sense of justice. Consequently, Jacoby’s weight challenge necessarily fails.

                V. Search Warrant Executed on Jacoby’s Residence

       Jacoby raises several challenges to the search warrants issued in this case. In

his first challenge in this regard, Jacoby challenges the warrant that was executed on

his home on July 6, 2011. Jacoby presents three challenges to this warrant. First, he




                                      [J-58-2016] - 18
asserts that the warrant lacked probable cause supporting the contention that he was

the actor in the murder. Second, he maintains that the warrant lacked probable cause

to establish that the murder weapon would be found inside his residence.         Finally,

Jacoby argues that the information contained in the affidavit of probable cause was

stale.   We find merit to some of Jacoby’s arguments, but hold that any error was

harmless.

         We review the denial of a motion to suppress by examining whether the trial

court’s factual findings are supported by the record. In doing so, we consider all of the

Commonwealth’s evidence, as the succeeding party, as well as any defense evidence

that went uncontradicted. Commonwealth v. Martin, 101 A.3d 706, 719 (Pa. 2014)

(citation omitted). We are bound by any factual findings that are supported by the

record. Id. However, we owe no deference to any legal conclusions drawn by the trial

court.    To the contrary, we review those conclusions de novo.       Commonwealth v.

Briggs, 12 A.3d 291, 320-21 (Pa. 2011).

         All three of Jacoby’s contentions pertain to the alleged inadequacy (and

staleness) of probable cause offered in support of the warrant. The Fourth Amendment

to the United States Constitution commands that “[t]he right of the people to be secure

in their persons, houses, papers, and effects, against unreasonable searches and

seizures, shall not be violated, and no Warrants shall issue, but upon probable cause,

supported by Oath or affirmation, and particularly describing the place to be searched,

and the persons or things to be seized.” U.S. CONST. amend IV. Similarly, Article I,

Section 8 of the Pennsylvania Constitution provides that “[t]he people shall be secure in

their persons, houses, papers and possessions from unreasonable searches and

seizures, and no warrant to search any place or to seize any person or things shall




                                    [J-58-2016] - 19
issue without describing them as nearly as may be, nor without probable cause,

supported by oath or affirmation subscribed to by the affiant.” PA. CONST. art. I, § 8.

       A search warrant may issue only upon a demonstration of probable cause by an

affiant. See generally Commonwealth v. Gary, 91 A.3d 102, 107 (Pa. 2014). The

existence of probable cause is measured by examining the totality of the circumstances.

Illinois v. Gates, 462 U.S. 213, 238 (1983). “Probable cause exists where the facts and

circumstances within the affiant’s knowledge and of which he [or she] has reasonably

trustworthy information are sufficient in and of themselves to warrant a [person] of

reasonable caution in the belief that a search should be conducted.” Commonwealth v.

Johnson, 42 A.3d 1017, 1031 (Pa. 2012) (internal quotation marks and citation omitted).

A magisterial district judge, when deciding whether to issue a search warrant, must

“make a practical, common-sense decision whether, given all of the circumstances set

forth in the affidavit . . . 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.” Id. (citation omitted). Conversely, “[a] court

reviewing a search warrant determines only if a substantial basis existed for the

magistrate to find probable cause.” Id. (citation omitted). We also note that there is a

strict particularity requirement in Article I, Section 8 of the Pennsylvania Constitution

that “a warrant must describe the items as specifically as is reasonably possible.”

Commonwealth v. Grossman, 555 A.2d 896, 899 (Pa. 1989); see also Pa.R.Crim.P.

205(2) (requiring all search warrants to “identify specifically the property to be seized”);

id. at 205(3) (requiring all search warrants to “name or describe with particularity the

person or place to be searched”).

       The murder in this case occurred on March 31, 2010. The warrant to search

Jacoby’s house did not issue until approximately fifteen months later, on July 6, 2011.




                                     [J-58-2016] - 20
Detective Lisa Layden applied for the warrant, and was the affiant on the affidavit of

probable cause. The affidavit contained the following information.

        Det. Layden noted that a .32 caliber shell casing was found at the scene of the

murder.     She further indicated that the casing most likely came from a .32 caliber

firearm, possibly one manufactured by Kel-Tec.         Search Warrant S51, Affidavit of

Probable Cause, 7/6/2011, at 7.       The detective explained that Jacoby was the

registered owner of a Kel-Tec .32 caliber semiautomatic pistol. Id.

        Det. Layden also averred that Officer Bryn Lindenmuth interviewed Monica

Schmeyer’s neighbors in the days following the murder. One witness, William Kagarise,

provided Officer Lindenmuth with a description of a man that he saw walking toward,

and later away from, Monica Schmeyer’s home around the time of the killing. Id. at 3.

Det. Layden noted that Anthony Crawford provided Officer Lindenmuth with a similar

physical description of a man that he observed on the same day. Id. Crawford also told

Officer Lindenmuth that he saw a silver van parked in the grass on the side of the road

near his home. Id.

        Det. Layden interviewed a woman named Olivia Becker.           Becker was Dr.

Schmeyer’s girlfriend. She described a man who was a member of the OSS with Dr.

Schmeyer. Id. at 6. The detective noted that the description was similar to those

provided by Kagarise and Crawford. Id. Moreover, the descriptions matched Jacoby.

Id. at 7.

        Det. Layden then explained that she interviewed Bob Sandkuhler and James

Baker of Armstrong World Industries. Both men confirmed that Jacoby worked for that

company. Id. They both informed Det. Layden that Jacoby had signed the company’s

silver van out for use on the day of the murder. The detective explained in the affidavit

that the van owned by Armstrong World Industries was consistent with the description of




                                    [J-58-2016] - 21
the silver van provided by Anthony Crawford. Det. Layden met again with Crawford,

who identified the van owned by Armstrong World Industries as the van he saw near his

house on the day of the murder. Id.

        Finally, Det. Layden’s affidavit described Jacoby’s firearm as follows:

        The weapon referred to in this search warrant application is a unique item.
        The current registered owner (Jacoby) is a convicted felon according to a
        criminal history check through PA State Police. Due to this past history, it
        is reasonable to believe Jacoby would retain this item, as he is barred
        from legally obtaining another hand-gun.

        It is reasonable to believe that evidence relevant and material to this
        criminal investigation may be found within the residence, property and/or
        vehicles owned, rented, or accessible to Jacoby or Sara Powell.

Id. at 8.

        We are mindful that, “[i]n dealing with probable cause, however, as the very

name implies, we deal with probabilities. These are not technical; they are the factual

and practical considerations of everyday life on which reasonable and prudent men, not

legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175 (1949). Thus,

viewing the information contained in Det. Layden’s affidavit accordingly, we reject

Jacoby’s arguments that the affidavit lacked probable cause to believe that he was the

actor in the murder. The affidavit, on its face, provided sufficient probable cause to

indicate that Jacoby was the man seen walking to and from the direction of Monica

Schmeyer’s residence on the day in question, and that he used a van belonging to his

employer to drive to and from the general area. There also was probable cause to

believe that Jacoby owned a .32 caliber weapon, the same type of weapon used in the

murder. Thus, the statement of probable cause was sufficient in this regard. However,

his arguments pertaining to whether probable cause existed to believe that the weapon

would be found in his home and that the information contained in the affidavit on this




                                      [J-58-2016] - 22
point was stale are not as easily rejected. To the contrary, we find merit to those

claims.

         As noted, Jacoby challenges both the adequacy and staleness of the information

offered in the affidavit to believe that the alleged murder weapon would be found in his

home fifteen months after the murder. Again, Det. Layden asserted in the affidavit that

it was “reasonable” to believe the murder weapon was secreted in Jacoby’s house after

such a substantial period of time because Jacoby was not permitted to own a weapon

as a felon, and therefore was likely to retain the weapon due to the difficulty in procuring

another one in light of his felon status. This is conjecture and speculation, particularly

considering the gap in time, and cannot suffice as probable cause on this point.

         The trial court reached similarly speculative conclusions. The court held that the

information provided probable cause and was not stale for two reasons. First, the court

noted that “guns are durable and sometimes valuable objects that people typically hold

on to for the long term.” Trial Court Opinion, 9/21/2015, at 4. This conclusion suffers

from the same defect as Det. Layden’s. It is not tailored or individualized to Jacoby in

any fashion. The court reaches its conclusions on what some unknown people may or

may not do under undefined circumstances. This conclusion falls short of probable

cause.     Second, like Det. Layden, the court held that “the fact that [Jacoby] is a

convicted felon and therefore unable to legally obtain another firearm, increases the

likelihood that he would have held on to the firearm already in his possession.” Id.

Even if the trial court is correct that Jacoby’s felony status “increases the likelihood” of

keeping the firearm, that is not the same as establishing that it is probable that the

firearm was still in Jacoby’s home.         Like the court’s first conclusion, the latter

explanation is not individualized to Jacoby, or his circumstances.        The trial court’s

conclusion rests upon the same flaw described earlier. Probable cause, at a minimum,




                                      [J-58-2016] - 23
must be individualized to the suspect and the circumstances of the case; it requires

more than generalized statements about human behavior that are unsupported by the

specific facts of the case.

       “At the very core of the Fourth Amendment stands the right of a man to retreat

into his own home and there be free from unreasonable governmental intrusion.” Kyllo

v. United States, 533 U.S. 27, 31 (2001) (quoting Silverman v. United States, 365 U.S.

505, 511 (1961) (internal quotation marks omitted)). Generally, before police officers

constitutionally, i.e., reasonably, may enter into a person’s home to search for evidence

of a particular crime, they must apply for, and obtain from a neutral and detached

magistrate, a search warrant supported by individualized probable cause.

       Neither the Fourth Amendment nor Article I, Section 8 of the Pennsylvania

Constitution explicitly requires individualized suspicion. See Samson v. California, 547

U.S. 843, 855 n.4 (2006) (“The touchstone of the Fourth Amendment is

reasonableness, not individualized suspicion.”).       Nonetheless, although not an

“irreducible” component of reasonableness, the general rule is that probable cause must

be predicated upon individualized suspicion, and that searches conducted without such

suspicion ordinarily are deemed unreasonable. City of Indianapolis v. Edmond, 531

U.S. 32, 37 (2000) (citing Chandler v. Miller, 520 U.S. 305, 308 (1997)); Commonwealth

v. Mistler, 912 A.2d 1265, 1271 (Pa. 2006). The United States Supreme Court has

deviated from this baseline principle only in very limited circumstances, such as when

intrusion would serve “special needs, beyond the normal need for law enforcement.”

Edmond, 531 U.S. at 37 (citations omitted). Examples of such instances include: (1)

drug tests; (2) certain administrative purposes; (3) border patrol checkpoints; and (4)

sobriety checkpoints. See Mistler, 912 A.2d at 1271 (collecting cases). The search

warrant executed in the case sub judice implicated none of these special categories. As




                                    [J-58-2016] - 24
such, the probable cause offered in support of that warrant was subject to the general

rule, and, thus, must have manifested suspicion individualized to the time and place of

the search. It failed to do so here.

       Probable cause to search Jacoby’s home did not exist simply because probable

cause existed to believe that he had committed the murder, with a weapon of the same

caliber as one that he owned, and then drove in the general direction of his home fifteen

months before the search warrant was issued. Together and by themselves, these

factors do not justify entry without some nexus to the home. The trial court overlooked

the significant gap of time between the murder and the search, and then attempted to

buttress its conclusion with an unsourced assessment of general human behavior.

Without support, the trial court reasoned that people—felons especially—generally do

not discard firearms, even those used in murders.

       This broad perspective on probable cause finds no support in Pennsylvania law

and is troubling on several levels.       First, the trial court deviated from the search

jurisprudence summarized above without acknowledging or attempting to distinguish it.

The trial court would hold that, if police officers develop probable cause that a person

committed an offense anywhere in the Commonwealth with a weapon of the same

caliber as the one that he or she owns, probable cause exists automatically to search

that person’s home, no matter where it is located. It is easy to discern the infirmity of

this approach. If the trial court’s reasoning were to prevail, when a person commits an

offense with such a weapon in Erie County, police automatically would have probable

cause to search that person’s home, even if it is located in Delaware County. This is

inconsistent with Fourth Amendment jurisprudence.

       Additionally, the trial court’s method for evaluating probable cause does not

require consideration, in any way, of the time lapse between the commission of the




                                       [J-58-2016] - 25
offense and the search. Rather than addressing the time gap, the trial court would rest

upon its belief that people generally hold on to guns (even those used in murders) and

that, as such, probable cause to search for guns exists in apparent perpetuity. By this

logic, in the case of the Erie murder, the trial court would find probable cause to search

the Delaware County residence not only immediately after the murder, but also fifteen

months later, and presumably even ten years after the crime.

      Finally, aside from the deviation from the core principles of the Fourth

Amendment and Article I, Section 8 that necessarily results from evaluating probable

cause in such general, categorical terms, there is another obvious peril in considering

probable cause in this manner.      People of different genders, races, religions, and

backgrounds might respond to certain circumstances differently. Similarly, older people

might not conduct themselves as a younger generation would. Mainers might not

behave like Texans. There is nothing even to suggest that similar people within the

same general category would respond to a set of circumstances in the same way.

Probable cause to search Jacoby’s home must be evaluated based upon the

circumstances of his case, his behavior, and any nexus to the location to be searched,

but not upon categorical assumptions.       Our Constitutions prohibit such categorical

conclusions, as well as those searches that are based upon such conclusions.

      The architects of our Constitutions rejected general searches, and instead

charged police officers with demonstrating specific and articulable facts to establish

probable cause that a particular person committed a particular crime and that evidence

of that crime would be found in a particular place. The trial court’s approach shortcuts

this bedrock inquiry with general assumptions about human behavior, untethered to the

actual facts at hand, and was erroneous. For these reasons, we find an absence of

probable cause in the warrant to believe that the murder weapon would be found in




                                    [J-58-2016] - 26
Jacoby’s residence fifteen months after the murder. As such, we need not address

Jacoby’s staleness argument.

       However, Jacoby is not entitled to relief, because we find that that the trial court’s

error was harmless. “An error is harmless if it could not have contributed to the verdict.

In other words, an error cannot be harmless if there is a reasonable possibility the error

might have contributed to the conviction.” Commonwealth v. Wright, 961 A.2d 119, 143

(Pa. 2008) (citation omitted). The Commonwealth bears the burden to prove beyond a

reasonable doubt that the error did not contribute to the verdict. Id. (citation omitted). In

our view, it has done so here.

       Harmless error exists where: (1) the error did not prejudice the defendant
       or the prejudice was de minimis; (2) the erroneously admitted evidence
       was merely cumulative of other untainted evidence which was
       substantially similar to the erroneously admitted evidence; or (3) the
       properly admitted and uncontradicted evidence of guilt was so
       overwhelming and the prejudicial effect of the error was so insignificant by
       comparison that the error could not have contributed to the verdict.

Commonwealth v. Chmiel, 889 A.2d 501, 521 (Pa. 2005) (quoting Commonwealth v.

Robinson, 721 A.2d 344, 350 (Pa. 1998)).

       Earlier in this opinion, we summarized all of the evidence presented against

Jacoby. Reviewing that evidence in light of the standard set forth immediately above,

we conclude that the Commonwealth’s evidence, sans the Kel-Tec second-generation

barrel that was found in Jacoby’s home, was overwhelming, and that the introduction of

the barrel was “so insignificant by comparison that the error could not have contributed

to the verdict.” Id. The Commonwealth’s evidence established that Monica Schmeyer

was killed by a gunshot wound to the head, which was inflicted from a close distance.

Discussions at OSS meetings revealed that Monica Schmeyer collected support from

Dr. Schmeyer, and that she kept the funds in cash and in white envelopes. Moreover,

Dr. Schmeyer announced at those same meetings that Schmeyers’ daughter would not


                                      [J-58-2016] - 27
be home on the day of the murder. On that date, a man matching Jacoby’s description

was seen driving a customized van that belonged to the company for which Jacoby

worked. Jacoby later submitted a voucher for reimbursement for costs associated with

the use of the van for a span of time that included the day of the murder. The man

meeting Jacoby’s description also was seen walking in the direction of the Schmeyer

residence, and then walking back a short time later carrying a white envelope. Jacoby,

who attended OSS meetings,9 also was not present at the OSS meeting that was held

at the exact time that Monica Schmeyer was murdered, even though his fiancée

generally expected him to be at the meeting.

      The murder weapon was a .32 caliber firearm. The police recovered ammunition

matching the casings found at the murder scene at the following locations: a bedroom

in Jacoby’s parents’ home, and a makeshift shooting-range on that property. In fact, the

casings found at the murder scene were proven definitively to have been fired from a

gun that also was fired at that shooting range. The Commonwealth produced for the

jury a receipt proving that Jacoby had purchased a .32 caliber firearm.

      Finally, through the Y-STR DNA testimony, the Commonwealth was able to

include Jacoby, by virtue of his male lineage, in the limited group of people who could



9
       As the dissent observes, the frequency of Jacoby’s attendance at the OSS
meetings was not described with precision at trial. Compare N.T., Oct. 6, 2014, at 1212
(indicating that Jacoby’s attendance was irregular), with id. at 1297 (characterizing the
attendance as “somewhat regular.”). Nonetheless, the point is that the crime aligned
with the circumstances discussed at the OSS meeting, such as the fact that Monica
Schmeyer secreted her money in white envelopes and the fact that she was alone on
the date of the murder due to her daughter’s absence. The remainder of the evidence
convincingly established that Jacoby was the perpetrator of the crime. Thus, explicit
testimony proving that Jacoby attended the meeting where these matters were
discussed was not necessary. The circumstantial evidence proved both the crime and
the identity of the perpetrator.



                                    [J-58-2016] - 28
have committed the crime, as such biological evidence was found under Monica

Schmeyer’s fingernails.

       Viewed objectively, this evidence demonstrates overwhelmingly that Jacoby was

the murderer, even without considering the evidence found via the search warrant

executed on Jacoby’s residence.        In dissent, Chief Justice Saylor maintains that

introduction of the Kel-Tech second-generation barrel could not have been harmless,

largely because, in closing arguments, the Commonwealth urged the jury to consider

that evidence. See Dissenting Opinion at 5-6 (citing N.T. 10/7/2014 at 1535 (“The

ballistics tell us everything.”); id. at 1564 (“Gun, DNA, guilty.”)). However, the barrel

found in Jacoby’s home was not the entirety of the ballistics evidence, and not the only

evidence relied upon by the Commonwealth. The ballistics evidence included the much

more inculpatory material that was found at Jacoby’s parents’ house, which police

actually matched with the evidence found at the murder scene.         Hence, there was

ample, indeed overwhelming, ballistics evidence even without the barrel in question.

       Moreover, although the Commonwealth’s arguments fairly can shed light on the

importance of certain aspects of its evidentiary case, those arguments do not

automatically shield errors from being deemed harmless, and do not do so here. As the

preceding summary of the inculpatory evidence demonstrates, the Kel-Tech barrel

played, at best, only a minimal part in the Commonwealth’s ballistics evidence and its

overall evidentiary presentation, and its admission was overwhelmed by the substantial

remainder of inculpatory evidence. Thus, we hold that the incorrectly admitted evidence

did not contribute to the verdict in any meaningful way. The error, simply put, was

harmless. Jacoby is not entitled to relief.

           VI. Search Warrant Executed on Jacoby’s Parents’ Residence




                                      [J-58-2016] - 29
       Jacoby next challenges the July 7, 2011 search warrant that was executed on his

parents’ home.     Specifically, Jacoby contends that the affidavit lacked sufficient

probable cause to justify issuance of the warrant.      In his view, the affidavit lacked

specific facts that would lead one to conclude that evidence of the homicide might be

found in his parents’ home, and, to the extent that such information was in the affidavit,

it was stale. Brief for Jacoby at 32-33. The Commonwealth has two responses. First,

as a threshold matter, the Commonwealth disputes the trial court’s conclusion that

Jacoby had standing to contest the search of his parents’ home.             Second, the

Commonwealth claims that the affidavit contained adequate probable cause to support

the issuance of the warrant, and the facts offered in support of probable cause were not

stale. Brief for the Commonwealth at 31, 33-34.

       The affidavit offered in support of the warrant to search Jacoby’s parents’ home

contained all of the same information that was averred in the affidavit to search

Jacoby’s house, but with the following averments, as summarized by the trial court:

       During the search of [Jacoby’s] residence, a small caliber bullet and barrel
       of a handgun had been found; and

       [Jacoby’s] fiancée, who lived with [Jacoby] at his residence, had seen
       handguns in their home, including a small gun fitting the description of the
       weapon used to murder the Victim, and had also seen [Jacoby] give guns
       to his father and shoot guns at the range on his father’s farmette on 2440
       Meeting House Road.

Trial Court Opinion, 9/21/2015, at 6; Search Warrant S57, Affidavit of Probable Cause,

7/6/2011, at 8.

       Before we can assess whether these additional statements suffice to establish

probable cause to search Jacoby’s parents’ residence, we first must consider whether

Jacoby has standing to challenge the search. Standing is the authority “to assert a

constitutional violation and thus seek to exclude or suppress the government’s evidence



                                    [J-58-2016] - 30
pursuant to the exclusionary rules under the Fourth Amendment [to] the United States

Constitution or Article 1, Section 8 of the Pennsylvania Constitution.” Commonwealth v.

Hawkins, 718 A.2d 265, 266 (Pa. 1998) (citation omitted).        In Pennsylvania, as a

constitutional mandate, individuals that are charged with possessory offenses generally

enjoy automatic standing to challenge the constitutionality of searches that yield

evidence that the Commonwealth intends to use against that person at trial.          See

Commonwealth v. Sell, 470 A.2d 457, 469 (Pa. 1983). However, that mandate does not

extend to any and all possessory offenses.       Indeed, there are limits to automatic

standing.

       Generally, a defendant will have automatic standing to challenge a search or

seizure if he or she can demonstrate either: “(1) his presence on the premises at the

time of the search and seizure; (2) a possessory interest in the evidence

[unconstitutionally] seized; (3) that the offense charged include[s] as an essential

element of the prosecution’s case, the element of possession at the time of the

contested search and seizure; or (4) a propriety or possessory interest in the searched

premises.” Commonwealth v. Peterkin, 513 A.2d 373, 378 (Pa. 1986) (citation omitted;

brackets in original).

       In this case, Jacoby maintained that he had automatic standing under Article I,

Section 8, of the Pennsylvania Constitution, because he had been charged with at least

one possessory offense. The Commonwealth responded that this Court’s decision in

Peterkin—discussed immediately below—limits the application of the automatic

standing doctrine when the basis for standing is a possessory offense. The trial court

determined that Jacoby had standing because he had been charged with persons not to

possess a firearm in connection with the .50 caliber Desert Eagle handgun that was

found in his parents’ home. The trial court apparently believed that the existence of the




                                    [J-58-2016] - 31
possessory charge sufficed to establish standing, without any further consideration of

the timing and circumstances of that offense. Peterkin instructs otherwise.

      In Peterkin, following convictions for first-degree murder, robbery, and

possession of an instrument of crime (“PIC”), Peterkin challenged the search of a

friend’s home, where the police found the murder weapon that that also formed the

basis of the PIC charge. Among other claims, Peterkin alleged that he had automatic

standing to challenge the search of his friend’s home. Id. at 377. This Court specifically

rejected the notion that the PIC charge, in and of itself, conferred automatic standing

upon Peterkin. We explained that the Commonwealth’s “case against [Peterkin] on that

charge was not dependent upon his possession of the instrument of the crime at the

time of the contested search and seizure.”       Id. at 378.   Rather, the PIC “charge

emanated from [Peterkin’s] criminal employment of the [weapon] in the commission of

the murders and robbery.” Id.

      In the case sub judice, it is undisputed that Jacoby was not present at the time of

the search of his parents’ home, that he lacked a possessory interest in his parents’

home, and that he lacked a possessory interest in the items seized.           Furthermore,

although the Commonwealth initially charged Jacoby with persons not to possess a

firearm, the trial court erred in relying upon this charge to award automatic standing.

According to the criminal information, the Commonwealth alleged “that on or about

March 31, 2010,” Jacoby “possessed . . . a .50 caliber pistol” at a time when Jacoby had

previously been convicted of a robbery, a felony for purposes of a persons not to

posses a firearm charge.     Criminal Information, 10/9/2012, at 1.      The possessory

offense, in and of itself, however, is not dispositive. Peterkin requires us to focus upon

whether the defendant is charged with possessing a certain item or contraband “at the

time of the contested search and seizure.”      Peterkin, 513 A.2d at 378.       Here, the




                                    [J-58-2016] - 32
“contested search and seizure” is the July 7, 2011 search of Jacoby’s parents’ home,

whereas the Commonwealth alleged that the crime of persons not to possess occurred

when the murder took place, on March 31, 2010. Criminal Information, 10/9/2012, at 1.

Thus, as in Peterkin, because the Commonwealth did not charge Jacoby with a

possessory offense arising from the time of the contested search, the possessory

offense itself does not confer automatic standing upon Jacoby. Consequently, Jacoby

lacked standing to challenge the search warrant and subsequent search of his parents’

home.10

                        VII. Search Warrant for DNA Sample

      In his next argument, Jacoby challenges the search warrant issued to collect a

DNA sample from him.        Specifically, Jacoby maintains that the warrant was not

supported by probable cause, because the informant used, in part, as the basis for

probable cause was anonymous. Jacoby also argues that, even though the informant

indicated that Jacoby had a cut on his hand on the day of the murder, the informant did

not specify where the cut was located on his hand or the seriousness of the cut.

Apparently, Jacoby believes that this lack of specificity undercuts the existence of

probable cause. The Commonwealth argues that Jacoby’s argument zeroes in on only


10
       As a side note, even if Jacoby did have automatic standing, he nonetheless likely
would be unable to satisfy another threshold requirement for suppression, that he
demonstrate an expectation of privacy in the area that was searched. Standing confers
only the authority to file the motion and assert a constitutional violation. See generally
Commonwealth v. Enimpah, 106 A.3d 695, at 698-99 (Pa. 2014). But, it does not
negate the need to demonstrate a reasonable expectation of privacy in the area that
was searched. See New York v. Class, 475 U.S. 106, 112 (1986) (explaining that a
“State’s intrusion into a particular area, whether in an automobile or elsewhere, cannot
result in a Fourth Amendment violation unless the area is one in which there is a
constitutionally protected reasonable expectation of privacy”) (internal quotation marks
omitted). Here, Jacoby would have had to prove that he had an expectation of privacy
in someone else’s house.



                                    [J-58-2016] - 33
one line of the affidavit of probable cause, and ignores the remainder of the information

contained therein. In the Commonwealth’s view, “[l]ooking at the information contained

in the affidavit as a whole in a common sense, non-technical manner, the affidavit

contains sufficient information to establish probable cause.”             Brief for the

Commonwealth at 35.

      The affidavit for the DNA warrant details the evidence that the police had

gathered and asserted in the search warrant application for Jacoby’s residence.

Particularly, the affidavit notes the description of the van and the witnesses who saw a

man matching Jacoby’s general features walking to and from the direction of Trone

Road on the date and at the time of the murder. Search Warrant S65, Affidavit of

Probable Cause, 9/20/2012, at 2. In addition, the affidavit contains information related

to the evidence found through the execution of the warrants on Jacoby’s residence and

on Jacoby’s parents’ residence, including the weapon and ammunition evidence. Id. at

3. The affidavit also notes that ballistic testing confirmed that “all of the .32 caliber

spent shell casings recovered at [Jacoby’s] parents’ property were fired from the same

gun that fired the .32 caliber spent shell casing found at the crime scene.” Id. at 4.

Finally, the affidavit indicates that Monica Schmeyer had multiple contusions on her

body that were indicative of an assault, and that fingernail scrapings from both of her

hands, which may be suitable for locating and testing a DNA sample from her attacker,

had been preserved during the autopsy. Id. at 4-5.

      The totality of the circumstances described within the four corners of the affidavit

established probable cause for the issuance of the warrant. The affidavit described the

evidence gathered by law enforcement throughout the investigation, including two

executed search warrants, which convincingly raised the probability that Jacoby was the

perpetrator of the murder.     This, coupled with the description of the nature and




                                    [J-58-2016] - 34
character of the injuries sustained by Monica Schmeyer during the assault, created the

probability that Jacoby’s DNA would be found on the fingernail scrapings preserved

during the autopsy. It is immaterial to our analysis whether anyone observed a cut on

Jacoby’s hand. Probable cause clearly existed regardless of that information. The trial

court correctly denied Jacoby’s suppression motion pertaining to the DNA warrant.

                     VIII. Frye Hearing on Y-STR DNA Evidence

       Next, Jacoby asserts that the trial court erred in denying his request for a Frye

hearing on the reliability of the methodology used in the Y-STR DNA testing. Brief for

Jacoby at 38-47.     Appellate courts review evidentiary decisions for an abuse of

discretion. Commonwealth v. Walker, 92 A.3d 766, 772 (Pa. 2014) (citations omitted).

“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, as shown by the

evidence or the record, discretion is abused.” Id. at 772-73 (internal quotation marks

and citations omitted).

       In general, expert testimony is permitted in all trials “when it involves

explanations and inferences not within the range of ordinary training[,] knowledge,

intelligence and experience.” Id. at 788. Expert testimony is governed generally by

Rule 702 of the Pennsylvania Rules of Evidence.

       Rule 702. Testimony by Expert Witnesses.

       A witness who is qualified as an expert by knowledge, skill, experience,
       training or education may testify in the form of an opinion or otherwise if:

              (a) the expert’s scientific, technical, or other specialized
              knowledge is beyond that possessed by the average
              layperson;

              (b) the expert’s scientific, technical, or otherwise specialized
              knowledge will help the trier of fact to understand the
              evidence or to determine a fact in issue; and


                                     [J-58-2016] - 35
              (c) the expert’s methodology is generally accepted in the
              relevant field.

Pa.R.E. 702. The Frye standard, first adopted by this Court in Commonwealth v. Topa,

369 A.2d 1277 (Pa. 1977), is used to determine the admissibility of novel scientific

evidence, and is incorporated into Rule 702. Grady v. Frito-Lay Inc., 839 A.2d 1038,

1043 (Pa. 2003). Frye permits novel scientific evidence to be admitted at trial “if the

methodology that underlies the evidence has general acceptance in the relevant

scientific community.” Walker, 92 A.3d at 789 (citation omitted). Once it is established

that the scientific evidence in question is novel, “the proponent must show that the

methodology is generally accepted by scientists in the relevant field, but need not prove

the conclusions are generally accepted.” Id. at 790 (citation omitted). The burden is on

the proponent of the evidence to demonstrate its admissibility. Id. A Frye hearing is not

required in every instance that a party wants to introduce scientific evidence. Rather, a

hearing is warranted only when the trial court “has articulable grounds to believe that an

expert witness has not applied accepted scientific methodology in a conventional

fashion in reaching his or her conclusions.” Id. (citation omitted).

       As noted above, the science at issue in this case is Y-STR DNA. Pennsylvania

courts have not had an opportunity to comment upon the admissibility of Y-STR DNA

evidence. We begin with a description of Y-STR DNA, upon which the parties appear to

agree. As Jacoby points out, in general, “[t]here are basically two types of DNA testing:

RFLP (restriction fragment length polymorphisms) and PCR (polymerase chain

reaction).”11 Brief for Jacoby at 38. In PCR testing, a technician takes DNA primers

and consistently copies these two pieces of DNA over a period of time to the point that

11
      Jacoby acknowledges that this Court has upheld the RFLP method as generally
accepted in the scientific community. See generally Commonwealth v. Blasioli, 713
A.2d 1117, 1126-27 (Pa. 1998).



                                     [J-58-2016] - 36
“millions or billions of DNA molecules” are created. Id. at 39. STR stands for “short

tandem repeats,” which basically is a short DNA sequence that repeats itself. 12 Id.

“The number of repeats in STR markers can be highly variable among individuals,

which make them particularly desirable for identification determinations.”     People v.

Zapata, 8 N.E. 3d 1188, 1192 (Ill. App. Ct. 2014) (citation omitted).       Current STR

analyses “focus[] on the small noncoding regions of the DNA molecule.” Id. (citation

omitted). “The number of repeats of a specific STR sequence present at a given locus,

combined over a designated number of loci, creates a unique DNA ‘profile’ of an

individual.” Id. (citation omitted).

       Y-STR DNA focuses upon the Y chromosome, which is “found only in males and

is one of the smallest human chromosomes.” Brief for Jacoby at 40 (citation omitted).

When conducting a Y-STR DNA analysis, the scientist is looking at how common this

particular locus or haplotype is in the database of Y chromosomes. Id.

       In his pretrial motion, Jacoby requested a Frye hearing for two general reasons.

First, Jacoby maintained that “Y-STR is notably weaker [than other types of DNA

testing] because instead of making a ‘match,’ the result can merely indicate that Jacoby

and all his male relatives cannot be ruled out.” Jacoby’s Omnibus Pretrial Motion,

6/24/2013, at ¶55; see id. at ¶59 (stating, “Y-STR DNA cannot uniquely identify an

individual like RFLP DNA, and should be reserved for cases where STR testing has

failed”). Second, Jacoby claimed that the Y-STR DNA database has problems like “size

limitations, a limited cross-section of samples and a limited representation of rare


12
      As this Court noted in Blasioli, “[t]here are four kinds of nucleotide bases in DNA:
adenine (A), guanine (G), cytosine (C), and thymine (T). Due to their chemical
composition, these can fit together only as follows: adenine will only pair with thymine,
and cytosine will pair only with guanine.” Blasioli, 713 A.2d at 1120 n.5 (citation
omitted).



                                       [J-58-2016] - 37
haplotypes.” Id. at ¶60. Presently, Jacoby claims that “unlike autosomal DNA, Y-STR

DNA has limited discriminatory power.” Brief for Jacoby at 42. Jacoby also argues that

“[t]here are several limitations to the current databases available for Y-STR DNA

comparison.” Id. at 45. Although Jacoby asserts that NMS Labs uses the “counting

method,”13 he does not argue that the counting method is novel science, nor does he

challenge the statistical conclusions stemming from the use of the counting method.

See id. at 40-41.

      As noted, Jacoby has raised a number of arguments in support of his request for

a Frye hearing. However, at the trial court’s hearing on the motion, it is clear that

Jacoby was unable to satisfy the threshold Frye requirement that the methodology

being challenged is novel. To appreciate fully the deficiency in this aspect of Jacoby’s

argument, a review of the relevant portions of the transcript from that hearing is

necessary, and follows:

      [ADA]:                      . . . the Commonwealth would assert that there
                                  is not the need for a Frye hearing in this matter
                                  because this is not novel science.

                                     *      *      *

      THE COURT:                  But wait a minute, we’re talking about whether
                                  from a perspective of -- is it novel science, or is
                                  it just a different application of established
                                  science? Is that not really what this is about?

      [DEFENSE COUNSEL]:          It is, yes. However, when you’re looking at
                                  how you analyze Y-STR, its application is

13
        Jacoby describes the counting method as being comprised of four steps. First, a
“profile of a Y[-]STR haplotype generated from an evidence sample is searched against
a reference database(s) of unrelated individuals[.]” Brief for Jacoby at 40. Next, “[t]he
number of times the Y[-]STR haplotype is observed in a database is counted[.]” Id. The
third step is where “[t]hat count is divided by the number of profiles in the reference
database(s)[.]” Id. Finally, “[a] confidence interval is placed on the proportion of
count/total profiles in a database(s).” Id. at 41.



                                    [J-58-2016] - 38
                     relevant, because you can’t just take the data,
                     you have to analyze the data. So when you’re
                     analyzing the data and using it in the capacity
                     of forensic science, and using it in a criminal
                     case, specifically a homicide, that’s why we
                     consider the application, the analysis to be
                     novel.

THE COURT:           And I don’t get that. Why is that?

[DEFENSE COUNSEL]:   Because I don’t think you can look at it as just
                     a bright line test, considering how we use the
                     analysis of it. You have to take the DNA, and
                     once you gather the DNA, then you have to put
                     it and analyze it against everything else.

THE COURT:           Is there anything novel about any of that so
                     far?

[DEFENSE COUNSEL]:   Novel? Not until you get to the second part,
                     no. The analysis, the gathering, that is not
                     novel science.

THE COURT:           What is novel then?

[DEFENSE COUNSEL]:   Then when you get to the databases and the
                     analysis portion of it. With regular STR, you
                     can put it in the database and it comes back
                     and says that the DNA that we found belongs
                     to Your Honor, and the chance of it being
                     anyone else would be more than the people on
                     the planet.

                     When you’re looking at Y-STR, it doesn’t do
                     that, and I understand that that doesn’t make it
                     novel, but you have to get the database. The
                     database for STR is ginormous, more than the
                     people on the planet. For Y-STR, we’re not at
                     that point yet, and that’s why I say its
                     application is novel in this area.

THE COURT:           Is there anything novel about how the
                     database is gathered or how the data making
                     up that base is gathered?

[DEFENSE COUNSEL]:   It is to some extent because we’re not in the
                     same place. Like a regular database for STR, I
                     can take someone’s DNA and I can put it in the


                       [J-58-2016] - 39
                     national database, and I know that that’s out
                     there and it’s used. You can’t do that with Y-
                     STR. It has to be kept separate from everyone
                     else. You can’t mix the two together because
                     they’re different, so we’re starting at something
                     new.

THE COURT:           How is that new? How is that new? That
                     sounds like they are gathering -- the scientific
                     methods used to gather the data to form the
                     basis of it is hindsight.          That’s my
                     understanding. I’m not a scientist. I could be
                     wrong about that.

                     What I hear you saying is -- I don’t know what I
                     hear you saying, to be frank with you. I mean
                     what’s novel about any of this?

[DEFENSE COUNSEL]:   My argument is, is that if it wasn’t novel, if it
                     wasn’t new, then we would have just been able
                     to use the same databases that have been
                     around for all these years that work for the
                     STR, the databases that have been here, that
                     have been used, but we didn’t, because we
                     can’t, so we had to create new databases, and
                     these databases are limited. They’re limited by
                     size.

THE COURT:           Is there anything novel about the manner in
                     which the database is created?

[DEFENSE COUNSEL]:   They are in the way they are utilized. They are
                     --

THE COURT:           No, created.

[DEFENSE COUNSEL]:   They’re created -- yes. I mean they’re created
                     for Y-STR, so they’re novel in the extent of how
                     they can be created. I mean it’s a different
                     methodology in the way that you are actually
                     analyzing the data. The databases themselves
                     are not the same as the STR databases.

THE COURT:           I’m just -- is there anything scientifically novel
                     about the manner in which the database is put
                     together, is created?       What’s scientifically
                     novel about that? Are there any particularly



                       [J-58-2016] - 40
                     new scientific procedures that are subject to
                     any kind of dispute or that are new?

[DEFENSE COUNSEL]:   The technique is the same, and Your Honor, I
                     understand what the argument is.           The
                     problem is that you’re taking something that is
                     being now used that was never used. It’s the
                     same as mitochondrial DNA. It’s used in cases
                     where I find bones lying in the field
                     somewhere, and I want to find out who this
                     person is, or I want to find my ancestry and go
                     back. It has a purpose.

                     Like polygraphs.       Polygraphs are great.
                     Investigators have been using them for years,
                     but we don’t bring them into the Court setting
                     for a reason. The same reason why you have
                     the Y-STR. It’s a good tool, it’s going to be
                     very helpful in the scientific community, but it
                     shouldn’t be brought into the courtroom.

THE COURT:           But then you’re arguing -- you’re not arguing
                     novel, the novel nature, you’re arguing the
                     persuasiveness of the evidence generated by
                     that process. Doesn’t that go to weight?

[DEFENSE COUNSEL]:   There is a ton of issues to be argued to go to
                     weight.

                       *      *      *

[DEFENSE COUNSEL]:   Well, arguing Y-STR, Your Honor, with all due
                     respect, York County has been the only place
                     in Pennsylvania that I’ve been able to come
                     across that uses it. There hasn’t been any
                     place else in Pennsylvania that --

THE COURT:           That doesn’t make it unique. That may make it
                     --

[DEFENSE COUNSEL]:   New.

THE COURT:           But it doesn’t make it novel. If the manner in
                     which the information that goes into forming
                     the database, is based upon or is gathered by
                     established non [sic] and novel scientific
                     means, how then can the database itself be
                     deemed to be novel?


                       [J-58-2016] - 41
      [DEFENSE COUNSEL]:         Because of the way that it’s used.

      THE COURT:                 How is the use of it -- how is the use of it
                                 scientifically new?

      [DEFENSE COUNSEL]:         Because it’s not there yet.      The databases
                                 aren’t large enough yet --

      THE COURT:                 Ma’am, I apologize, the application of this
                                 evidence may be novel, but it’s not scientifically
                                 novel. It may be used in a new non-scientific
                                 way. Do you not agree?

      [DEFENSE COUNSEL]:         I agree, and I guess what I am asking the
                                 Court to understand is that just because
                                 something may be scientifically reliable in a
                                 usage does not mean it can be scientifically
                                 reliable in all usages, and what we’re doing is
                                 we’re taking something that’s out there and
                                 trying to adapt it to forensic usage, and it
                                 shouldn’t be.

                                 And I understand that Your Honor looks at it as
                                 more of a weight issue, and I agree that there
                                 are many weight issues that come with Y-STR.
                                 I’m asking the Court to consider --

                                    *      *      *

      THE COURT:                 And what do [the scientific journals] say?

      [DEFENSE COUNSEL]:         That there [are] limitations on the databases,
                                 that there’s limited discriminatory power, that
                                 they haven’t addressed all the geographic
                                 concerns with the databases at this point.

Notes of Testimony, 1/2/2014, at 40-48.

      Questions that raise scientifically complex questions are no easy task for courts.

Nonetheless, when considering those questions, we remain bound by our standard of

review. Thus, Jacoby is entitled to relief only if he can demonstrate to this Court that

the trial court’s decision was an abuse of discretion; that is, inter alia, the court’s




                                    [J-58-2016] - 42
determination was manifestly unreasonable. Under the limited circumstances of this

case, we conclude that Jacoby did not make such a showing.

       As is evident from the arguments that Jacoby advanced at the hearing, i.e., his

opportunity to demonstrate the necessity for a Frye hearing, Jacoby could not overcome

the trial court’s conclusion that his argument was predicated upon the weight that

should be assigned to the Y-STR DNA evidence, and not upon the novelty of the

database process itself.14      Repeatedly, Jacoby was forced by the trial court’s

questioning to concede that the Y-STR databases were not created in a novel fashion

that would differentiate the scientific methods of creating these databases from others.


14
        The learned dissent posits that we effectively are finding that Jacoby has waived
all of the arguments that he outlined in his pre-trial motion, but that were not raised at
the hearing. See Dissenting Opinoin at 5, n.4. We make no such finding. As noted,
our task simply is to determine whether the trial court abused its discretion. The court
provided Jacoby with a forum to demonstrate that a Frye hearing would be warranted in
this case. Jacoby’s counsel argued the case as she saw fit. The trial court did not
restrain Jacoby’s opportunity to present other arguments. The trial court had threshold
concerns that Jacoby was attacking only the weight that should be attributed to the DNA
results, and not the novelty of the methodologies utilized to reach those results. Given
the chance overcome those concerns, Jacoby could not. We merely evaluate the trial
court’s exercise of discretion based upon the record before this Court.
        The arguments highlighted by the dissent pertain to the weight that should be
attributed to the evidence, and not the admissibility of that evidence. The dissent notes
that Jacoby challenges “the reliability of the statistical conclusions derived from the Y-
STR DNA testing,” argues that the “database is too small,” and maintains that “local
databases should be employed to account for profile frequency differences.” See
Dissenting Opinion at 6 (citing Defendant’s Ominbus Pretrial Motions at ¶¶60-61).
Finally, the dissent points out that Jacoby highlighted differences between Y-STR DNA
testing and autosomal DNA testing. Once more, all of these arguments are arguments
that can be made to a jury to demonstrate why Y-STR DNA results should not carry the
same weight as other types of DNA testing. But they are not challenges to the novelty
of the methodology of Y-STR DNA such that a Frye hearing would be justified, much
less required as a matter of law. They certainly are not so distinguishable from the
weight discussion between Jacoby’s counsel and the trial court at the hearing that the
trial court’s failure to grant a full Frye hearing cleared the high bar required to manifest
an abuse of discretion.



                                     [J-58-2016] - 43
Indeed, Jacoby’s attorney conceded that the technique for creating the database was

the same as in other DNA databases. Jacoby’s arguments were premised substantially

upon the fact that Y-STR databases have not yet grown large enough to secure a more

reliable result, that they do not account for geographical differences, and that, because

of their size and limitations, the results are not sufficiently discriminatory to constitute

reliable evidence. These arguments are directed at the weight that should be assigned

to that evidence at trial, and not at the novelty of the creation of the databases. They

are arguments for a jury.15

       Jacoby did not satisfy his burden of demonstrating that the aspect of the process

that he focused upon was novel such that we could find an abuse of discretion by the

trial court. Consequently, he is not entitled to relief.16

                       IX. Sufficiency of Penalty Phase Evidence

       Finally, we consider Jacoby’s claim that the evidence was insufficient to support

the imposition of a death sentence. As a statutory matter, this Court is required to affirm

a death sentence unless we conclude either that the evidence was insufficient to


15
       Indeed, Jacoby did just that at trial. The certified record reflects that defense
counsel cross-examined Jillian Fesolavich, a forensic biologist at NMS Labs, about the
weaknesses of the Y-STR DNA evidence in this case. Notes of Testimony, 9/29/2014,
at 417, 422-23, and 433-34. Jacoby also called his own expert, Katherine Cross, who
formerly worked for NMS Labs and “did the original extractions and testing of . . . the
fingernail samples, and ran the autosomal testing” in this case. N.T., 10/3/2014, at
1104. Ms. Cross elaborated upon the weakness of the application of Y-STR DNA
testing in this case. See generally id. at 1106-15.
16
        There may be challenges to other aspects of the Y-STR DNA methodologies.
Jacoby identified some of those issues in his original pre-trial motion as well as in his
brief to this Court. We do not hold that a Frye hearing will never be required to assess
an aspect of the Y-STR DNA methodology, nor do we foreclose the possibility of relief in
other cases where a defendant challenges the admissibility of Y-STR DNA evidence.
We hold only that Jacoby’s proffer at the hearing was insufficient to demonstrate
novelty, and that the trial court did not abuse its discretion in this instance.



                                       [J-58-2016] - 44
support at least one aggravating factor or that the jury’s determination was “the product

of passion, prejudice, or any other arbitrary factor.”         42 Pa.C.S. § 9711(h)(3)(i);

Commonwealth v. Murphy, 134 A.3d 1034, 1042 (Pa. 2016). The only aggravating

factor that was submitted to the jury by the Commonwealth was that “[t]he defendant

committed a killing while in the perpetration of a felony.” 42 Pa.C.S. § 9711(d)(6). The

jury found this factor present beyond a reasonable doubt. See Penalty Phase Verdict

Slip, 10/9/2014, at 1-2.

       Presently, Jacoby acknowledges that “[t]his [C]ourt cannot determine whether the

jury gave undue weight to the aggravating factor, for that is not reviewable.” Brief for

Jacoby at 60. Instead, Jacoby reasserts his claim that the felonies that could have

supported the aggravating factor, burglary and robbery, were not supported by sufficient

evidence. However, as we have explained above, both convictions were supported by

proof beyond a reasonable doubt. Additionally, we have reviewed the certified record,

and we conclude that the death sentence was not “the product of passion, prejudice, or

any other arbitrary factor,” and Jacoby does not forward any substantive argument to

the contrary. 42 Pa.C.S. § 9711(h)(3)(i). Therefore, we find no basis to vacate the

penalty on sufficiency grounds.

                              X. Conclusion and Mandate

       Based upon the foregoing, Jacoby is not entitled to relief.       The judgment of

sentence is affirmed. The Prothonotary is directed to transmit a copy of the record and

this opinion to the Governor pursuant to 42 Pa.C.S. § 9711(i).

       Jurisdiction relinquished.


       Justices Todd and Dougherty join the opinion in full.




                                     [J-58-2016] - 45
       Justice Mundy joins Parts I-IV and VI-X of the opinion and files a concurring
opinion in which Justice Baer joins.


      Chief Justice Saylor joins Parts I-IV, VI, VII, and IX of the opinion and files a
dissenting opinion.


      Justice Donohue joins Parts I-VII and IX of the opinion and files a concurring and
dissenting opinion.




                                    [J-58-2016] - 46
