J. S37040/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                     v.                     :
                                            :
RAHEEM B. FORD,                             :          No. 2255 EDA 2018
                                            :
                          Appellant         :


         Appeal from the Judgment of Sentence Entered July 18, 2018,
             in the Court of Common Pleas of Philadelphia County
               Criminal Division at No. CP-51-CR-0005923-2017


BEFORE: BOWES, J., KUNSELMAN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED SEPTEMBER 23, 2019

        Raheem B. Ford appeals from the July 18, 2018 judgment of sentence

entered by the Court of Common Pleas of Philadelphia County following his

conviction of robbery, conspiracy to commit robbery, theft by unlawful taking,

and burglary.1 After careful review, we affirm.

        The trial court set forth the following factual history:

              The complainant, Sharnell Davis, testified that on
              June 21, 2017, she was the victim of a robbery and
              burglary in her home at 6158 Windsor Street,
              Philadelphia, Pennsylvania[,] where she lived with her
              three small children, ages four (4), three (3), and
              five (5) months. Her father had just passed away in
              June 2017 and to avoid loneliness she asked her
              cousin Layla Muhammed to live with her following his
              death. At the time, Layla Muhammed was dating
              [appellant], and the complainant said as a result she
              knew [him] for the past two and a half (2½) years.

1   18 Pa.C.S.A. §§ 3701(a), 903(a), 3921(a), and 3502(a), respectively.
J. S37040/19


          She noted that she met [appellant] around five times
          previously and that he had stayed at her house on two
          prior occasions. The last time she saw [appellant] was
          the Sunday before the date of the incident when she
          dropped her cousin Layla off at his house on
          10th [S]treet. Layla subsequently returned to the
          complainant’s house for the next three days.

          On the date in question[], Layla was picked up by
          [appellant] at 5 am at the complainant’s house. The
          complainant explained that she went shopping with
          her friend Dior Bryant, and that Layla called her
          throughout the day. She noted that when they
          returned to her house, Layla called again. Thereafter,
          the complainant was sitting at her computer between
          the dining room and the living room with her infant
          child in her arms while her friend, Ms. Bryant, was on
          the couch in the living room. Almost a half-hour later
          after receiving the last call from Layla, two intruders
          entered the complainant’s house. The complainant
          explained that her front door was unlocked because
          her children were playing on the front steps before she
          told them to come in after it began to rain.

          A masked intruder immediately went up the stairs
          while the second unmasked intruder held the
          complainant, her children, and Ms. Bryant in the living
          room at gun point. The unmasked intruder had a
          cross tattoo on his face and another tattoo on his
          neck; he told the complainant to “Go get that shit”
          and to give her son to Ms. Bryant while pointing the
          gun at her and her infant son. The complainant went
          upstairs to her room and retrieved a bag of $400 in
          money and coins that had belonged to her father. The
          complainant testified that she recognized [appellant]
          as the masked intruder when they made eye contact
          in the upstairs hallway as he exited her deceased
          father’s room. He was wearing a “homemade ski
          mask” with large eye holes and a mouth hole cut out.
          When they returned downstairs, the unmasked
          intruder told the complainant to get on the floor and
          [appellant] suggested that they put them in the
          basement.      The group was told to stay in the
          basement and did for what seemed like 15 to


                                   -2-
J. S37040/19


          20 minutes. Hearing no more noise upstairs, they
          climbed out a window and went to the home of the
          complainant’s sister to call the police.

          ....


          Following the robbery, the complainant was distraught
          and returned to her house to meet law enforcement.
          Back at her house, she informed police of [appellant’s]
          identity and was subsequently brought to Southwest
          Detectives. The complainant identified [appellant] as
          the masked intruder and told police where she
          thought he lived based on where she dropped off her
          cousin in the past. The complainant explained that in
          an attempt to identify the other intruder she had her
          son’s     stepmother      “screenshot”     [appellant’s]
          Instagram page. She claimed to have discovered a
          picture of [appellant] with the other intruder that she
          emailed to detectives on July 12, 2017.              On
          cross-examination, the complainant explained that
          she had seen [appellant] on prior occasions but that
          he was not allowed back to her house because he had
          brought a gun there in 2013. The complainant stated,
          however, that she and [appellant] had a “cordial
          relationship.”

          ....

          Detective Matthew Carey testified that he was the
          assigned detective on the case and he interviewed the
          complainant       at      Southwest        Detectives.
          Detective Carey testified that the complainant told
          him that [appellant] committed the crime and that she
          identified where he lived on Google [M]aps as
          801 North Warnock Street. Detective Carey stated
          that the complainant reported that around $400 in
          change and marijuana had been taken. As a result, a
          search warrant was prepared and executed at
          [appellant’s] home. Proof of residency was found
          along with numerous live .45 caliber rounds in the
          back bedroom of the house. Detective Carey testified
          that later on in the investigation the complainant
          provided him with a picture of [appellant] with the


                                   -3-
J. S37040/19


            second intruder, Rashan Roberts, who was armed and
            unmasked.           The    complainant      identified
            Rashan Roberts in a photo array and a search warrant
            was prepared and executed for his home at 911 North
            Marvine Street, just two blocks away from
            [appellant’s] address. A black mask was found and
            Mr. Roberts was arrested. On cross-examination,
            Detective Carey stated that he was not aware of any
            cameras that were located in the area of the robbery.
            Police never recovered a gun, marijuana, or clothing
            matching the descriptions of the intruders.

Trial court opinion, 2/15/19 at 2-6 (citations to the record omitted).

      The Commonwealth charged appellant with, inter alia, robbery,

conspiracy to commit robbery, theft by unlawful taking, and burglary.

Appellant filed a pretrial motion in limine in which he sought to suppress

evidence of bullets found in his house.     The trial court denied appellant’s

motion. A jury convicted appellant of the aforementioned crimes on March 1,

2018. On July 18, 2018, the trial court sentenced appellant to an aggregate

of 2½-5 years’ imprisonment.

      Appellant filed a timely notice of appeal to this court on July 24, 2018.

The trial court ordered appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b) and appellant timely

complied. The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

      Appellant raises the following issues for our review:

            1.    Did not the trial court err and abuse its
                  discretion by permitting testimony of the
                  complainant’s identification of appellant from a
                  photograph posted on Instagram and admitting
                  that Instagram photograph into evidence, in
                  violation of appellant’s state and federal


                                     -4-
J. S37040/19


                    constitutional rights, where the Instagram post
                    was not properly authenticated pursuant to
                    Pa.R.E. 901 inasmuch as the Commonwealth
                    presented no direct or circumstantial evidence
                    regarding to whom the Instagram account
                    belonged?

              2.    Did not the trial court err and abuse its
                    discretion by denying appellant’s motion
                    in limine to preclude introduction of bullets
                    found in appellant’s home, in violation of
                    appellant’s state and federal constitutional
                    rights, where introduction of such evidence was
                    irrelevant and any probative value was
                    outweighed by a danger of unfair prejudice?

              3.    Did not the trial court err and abuse its
                    discretion in denying appellant’s request for a
                    mistrial where the Commonwealth’s statement
                    to the jury during summation that it should
                    “have the courage to do the right thing and find
                    the defendant guilty,” constituted expression of
                    an improper personal opinion regarding
                    appellant’s guilt in violation of appellant’s state
                    and federal constitutional rights?

Appellant’s brief at 4-5.

        In his first issue on appeal, appellant argues that the trial court abused

its discretion when it admitted a photograph posted on Instagram into

evidence, which the complainant used to identify appellant’s accomplice,

Rashan Roberts.2 (Id. at 13.) Appellant further avers that the photograph

was not authenticated and that the Commonwealth did not disclose who

posted the photograph, nor did it disclose the date of the photograph. (Id.)




2   The Commonwealth did not try appellant and Mr. Roberts together.


                                       -5-
J. S37040/19

Appellant further contends that he was unfairly prejudiced because the

photograph established that he knew Mr. Roberts. (Id. at 18.)

     Appellate review of the admission of evidence before the trial court is

governed by the following standard of review:

                 It is firmly established, “questions
                 concerning the admissibility of evidence
                 lie within the sound discretion of the trial
                 court, and [a reviewing court] will not
                 reverse the court’s decision on such a
                 question     absent    clear   abuse      of
                 discretion.”

           Commonwealth v. Baker, 963 A.2d 495, 503-504
           (citations omitted). Additionally,

                 [i]t is not sufficient to persuade the
                 appellate court that it might have reached
                 a different conclusion[;] it is necessary to
                 show an actual abuse of the discretionary
                 power. An abuse of discretion will not be
                 found based on a mere error of judgment,
                 but rather exists where the court has
                 reached a conclusion [that] overrides or
                 misapplies the law, or where the
                 judgment      exercised      is   manifestly
                 unreasonable, or the result of partiality,
                 prejudice, bias or ill-will.

           Commonwealth v. Christine, [] 125 A.3d 394, 397
           ([Pa.] 2015) (citations omitted).

Commonwealth v. Sweitzer, 177 A.3d 253, 260-261 (Pa.Super. 2017).

     In his argument, appellant relies upon our decision in Commonwealth

v. Mangel, 181 A.3d 1154 (Pa.Super. 2018), which states that because the

Commonwealth did not present any direct or circumstantial evidence linking

the defendant to certain Facebook chat messages and photographs, the trial


                                    -6-
J. S37040/19

court did not abuse its discretion when it denied the Commonwealth’s motion

in limine to introduce evidence obtained from the defendant’s purported

Facebook page. (Appellant’s brief at 14-15, citing Mangel, 181 A.3d at 1164.)

        In Mangel, the Commonwealth sought to introduce screenshots from a

Facebook page supposedly belonging to the defendant. Mangel, 181 A.3d at

1155.     Specifically, the Commonwealth wanted to introduce screenshots

consisting of undated online and mobile chat messages and a screenshot of a

photograph of what appeared to be bloody hands that someone else

purportedly posted to the defendant’s Facebook page. Id. This court held

that in order for such evidence to be admissible, it must be authenticated

using more than mere confirmation that the Facebook page belonged to a

particular person. Id. at 1161, citing Commonwealth v. Koch, 39 A.3d 996,

1105 (Pa.Super. 2011), affirmed by an equally divided court, 106 A.3d

705 (Pa. 2014).

        Generally, “[w]hen the evidence in question is a photograph, it may be

authenticated by testimony from a person who has sufficient knowledge that

the photograph fairly and accurately reflects what the proponent is purporting

that photograph to reflect.” Commonwealth v. Loughnane, 128 A.3d 806,

814 (Pa.Super. 2015), rev’d. on other grounds, 173 A.3d 733 (Pa. 2017),

citing Nyce v. Muffley, 119 A.2d 530, 532 (Pa. 1956).

        Here, the Commonwealth used the photograph at issue only for

identification purposes. In its brief, the Commonwealth argues that there was



                                     -7-
J. S37040/19

“never any dispute as to the actual identity of the individuals in the

photograph.”    (Commonwealth’s brief at 12.)       Indeed, the complainant

testified that she identified Mr. Roberts after seeing a photograph of both

Mr. Roberts and appellant on appellant’s Instagram page.            (Notes of

testimony, 2/27/18 at 85-87.)       Accordingly, we find that through the

complainant’s testimony, the Commonwealth was able to authenticate the

photograph and that the trial court did not abuse its discretion when it

admitted the photograph into evidence.

      Appellant next contends that the trial court erred and abused its

discretion when it denied his motion in limine in which appellant sought to

preclude the introduction of bullets found in his grandmother’s house where

he was living. (Appellant’s brief at 19.) When reviewing the denial of a motion

in limine, we apply the evidentiary abuse of discretion standard of review.

Commonwealth v. Schley, 136 A.3d 511, 514 (Pa.Super. 2016), citing

Commonwealth v. Orie, 88 A.3d 983, 1022 (Pa.Super. 2014), appeal

denied, 99 A.3d 925 (Pa. 2014).

      Here, appellant specifically contends that evidence of the bullets

recovered in his grandmother’s house was irrelevant or, in the alternative,

was prejudicial because its inclusion could “lead[] to the inference that

appellant has access to firearms and ammunition where he was not charged

with violations of the Uniform Firearms Act and no firearm was recovered.”

(Appellant’s brief at 22.)



                                     -8-
J. S37040/19


            Evidence is relevant if it logically tends to establish a
            material fact in the case or tends to support a
            reasonable inference regarding a material fact.
            Although a court may find that evidence is relevant,
            the court may nevertheless conclude that such
            evidence is inadmissible on account of its prejudicial
            impact.

Commonwealth v. Antidormi, 84 A.3d 736, 749 (Pa.Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014), quoting Commonwealth v. Weakley, 972

A.2d 1182, 1188 (Pa.Super. 2009), appeal denied, 986 A.2d 150 (Pa. 2009).

      Here, the trial court concluded that the bullets recovered from

appellant’s bedroom were relevant and were not unfairly prejudicial because

of his participation in a gunpoint robbery and burglary.         (See trial court

opinion, 2/15/19 at 10.) As noted by the Commonwealth, our supreme court

has held the following:

            A weapon not “specifically linked” to the crime is
            generally inadmissible; however, the fact “the
            accused had a weapon or implement suitable to the
            commission of the crime charged . . . is always a
            proper ingredient of the case for the prosecution.
            [Commonwealth v.] Robinson[, 721 A.2d 344,]
            351 [(Pa. 1998)]. “Any uncertainty that the weapon
            is the actual weapon used in the crime goes to the
            weight of such evidence.”           Commonwealth v.
            Williams, [] 640 A.2d 1251, 1260 ([Pa.] 1994) (citing
            Commonwealth v. Caccioletti, [] 425 A.2d 387,
            390 ([Pa.] 1981)).        “The only burden on the
            prosecution is to lay a foundation that would justify an
            inference by the finder of fact of the likelihood that the
            weapon was used in the commission of the crime.”
            [Commonwealth v.] Lee, [662 A.2d 645,] 652 [(Pa.
            1995)] (citing Commonwealth v. Thomas, [] 561
            A.2d 699, 707 ([Pa.] 1989) (“If a proper foundation is
            laid, the weapon is admissible where the



                                      -9-
J. S37040/19


            circumstances raise an inference of the likelihood that
            it was used.”)).

Christine, 125 A.3d at 400.

      Here, applying the Christine court’s discussion of weapons to the

ammunition seized in this case, we find that the trial court did not abuse its

discretion due to the fact that appellant was alleged to have participated in a

robbery and burglary in which firearms were brandished. Further, we find

that the prejudice of introducing the presence of bullets in appellant’s bedroom

did not outweigh its probative value. Accordingly, the trial court did not abuse

its discretion when it denied appellant’s motion in limine.

      In his third and final issue, appellant argues that the trial court erred

when it denied his request for a mistrial after the prosecutor implored the jury

to have “the courage to do the right thing” during the Commonwealth’s closing

argument at trial. (Appellant’s brief at 23.) Specifically, appellant contends

that the remark was inflammatory, prejudicial, represented an expression of

the prosecutor’s improper personal opinion pertaining to appellant’s guilt, and

therefore, denied appellant a fair trial. (Id.)

      When reviewing a trial court’s denial of a motion for a mistrial,

particularly in the context of a prosecutor’s comments during closing

argument, we are held to the following standard of review:

            Our standard of review for the denial of a motion for
            a mistrial is limited to assessing whether the trial court
            abused its discretion. Commonwealth v. Cash, []
            137 A.3d 1262, [1273] (Pa. [] 2016).                 More
            specifically, this Court has provided the following


                                     - 10 -
J. S37040/19


          standards for reviewing a claim of prosecutorial
          misconduct in a closing statement:

               it is well settled that any challenged
               prosecutorial comment must not be
               viewed in isolation, but rather must be
               considered in the context in which it was
               offered. Commonwealth v. Correa, []
               664 A.2d 607 ([Pa.Super.] 1995). Our
               review of a prosecutor’s comment and an
               allegation of prosecutorial misconduct
               requires us to evaluate whether a
               defendant received a fair trial, not a
               perfect trial. Commonwealth v. Rios, []
               721 A.2d 1049 ([Pa.] 1998). Thus, it is
               well settled that statements made by the
               prosecutor to the jury during closing
               argument will not form the basis for
               granting a new trial “unless the
               unavoidable effect of such comments
               would be to prejudice the jury, forming in
               their minds fixed bias and hostility toward
               the defendant so they could not weigh the
               evidence objectively and render a true
               verdict.” Commonwealth v. Fletcher,
               [] 861 A.2d 898, 916 ([Pa.] 2004)
               (quotation and quotation marks omitted).
               The appellate courts have recognized that
               not every unwise remark by an attorney
               amounts to misconduct or warrants the
               grant of a new trial. Commonwealth v.
               Faulkner, [] 595 A.2d 28 ([Pa.] 1991).
               Additionally, like the defense, the
               prosecution is accorded reasonable
               latitude, may employ oratorical flair in
               arguing its version of the case to the jury,
               and may advance arguments supported
               by the evidence or use inferences that can
               reasonably      be   derived     therefrom.
               Commonwealth v. Carson, [] 913 A.2d
               220 ([Pa.] 2006); Commonwealth v.
               Holley, 945 A.2d 241 (Pa.Super. 2008).
               Moreover, the prosecutor is permitted to
               fairly respond to points made in the


                                 - 11 -
J. S37040/19


                    defense’s closing, and therefore, a proper
                    examination of a prosecutor’s comments
                    in closing requires review of the
                    arguments advanced by the defense in
                    summation. Commonwealth v. Chmiel,
                    [] 889 A.2d 501 ([Pa.] 2005).

              Commonwealth v. Jaynes, 135 A.3d 606, 615
              (Pa.Super. 2016).

Commonwealth v. Scott, 146 A.3d 775, 778-779 (Pa.Super. 2016), appeal

denied, 166 A.3d 1232 (Pa. 2017).

      Here,    appellant   takes   exception    to   the   following     from    the

Commonwealth’s closing argument to the jury:

              When you deliberate, I’d ask that you use your
              common sense. Common sense in a criminal case can
              be described as: The ability to see things as they
              really were and the courage to do the right thing
              based upon that.

              This young lady, Sharnell Davis, saw things as they
              really were on June 21st, 2017 and every time since
              then she’s had the courage to do the right thing based
              upon that, even at the risk of ruining family
              relationships.

              I’d ask you likewise, to have the courage to do the
              right thing and find [appellant] guilty.

Notes of testimony, 2/28/18 at 104-105 (emphasis omitted).

      Based upon our review of the record, we find that the Commonwealth

“‘neither caused the jury to form a fixed bias or hostility towards appellant nor

did [it] ask the jury to send a message to the judicial system or . . .’ the

community.” Commonwealth v. Patton, 985 A.2d 1283, 1287 (Pa. 2009),

quoting   Commonwealth v. Hall,           701   A.2d   190,   203      (Pa.   1997),


                                      - 12 -
J. S37040/19

cert. denied sub nom. Hall v. Pennsylvania, 523 U.S. 1082 (1998). See

also Commonwealth v. Ervin, 766 A.2d 859, 865 (Pa.Super. 2000), appeal

denied, 793 A.2d 904 (Pa. 2002), cert. denied sub nom. Ervin v.

Pennsylvania, 536 U.S. 939 (2002) (finding that imploring the jury to have

courage, when used in the context of speaking of the courage of witnesses at

trial, was not an objectionable argument on the part of the prosecutor).

Accordingly, the trial court did not abuse its discretion when it denied

appellant’s request for a mistrial for prosecutorial misconduct.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 9/23/19




                                    - 13 -
