J-S15026-18

                                 2018 PA Super 135

 COMMONWEALTH OF                          :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                             :        PENNSYLVANIA
                                          :
                                          :
              v.                          :
                                          :
                                          :
 JEFFREY SCOTT KNOBLE, JR.                :
                                          :   No. 2671 EDA 2017
                     Appellant            :

          Appeal from the Judgment of Sentence February 1, 2017
  In the Court of Common Pleas of Northampton County Criminal Division
                    at No(s): CP-48-CR-0001405-2015


BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:                                    FILED MAY 24, 2018

      Appellant, Jeffrey Scott Knoble, Jr., appeals from the Judgment of

Sentence imposed after a jury convicted him of two counts each of Terroristic

Threats and Firearms Not to be Carried Without a License, and one count each

of First-Degree Murder, Criminal Mischief, and Unauthorized Use of an

Automobile.    Appellant challenges the court’s joinder of three separate

criminal dockets for trial and the denial of his Motion to Suppress. After careful

review, we affirm.

      The facts and relevant procedural history, as gleaned from the record,

are as follows. On March 10, 2015, at 7:53 AM, Octavia Douglas, Appellant’s

then-girlfriend, contacted Phillipsburg Police to report that Appellant had taken

her rental car without permission. She also called Appellant’s mother, Ms.

Knoble, and told her that Appellant was going to crash the rental car. Ms.

Knoble contacted Appellant and Appellant threatened to shoot police officers.
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Ms. Knoble convinced Appellant to stop driving Ms. Douglas’s car and arranged

to pick him up in Easton.

      When Ms. Knoble arrived in Easton, Appellant left Ms. Douglas’s car

running with the door open and entered Ms. Knoble’s car, laying a firearm

across his lap. Appellant told Ms. Knoble that he had shot and killed someone,

and continued to threaten to shoot police officers. Ms. Knoble told Appellant

that she would not permit him in her home and subsequently drove him to his

grandmother’s house in Riegelsville, Pennsylvania.

      A few hours later, Pennsylvania State Police received a report of an

abandoned vehicle and discovered Ms. Douglas’s rental vehicle running and

unoccupied. The vehicle had been shot four times: three times in the driver’s

side front door and one time in the driver’s side passenger door.

      On March 11, 2015, at approximately 2:00 AM, Appellant began

communicating with Andrew “Beep” White (the “Victim”). Because Ms. Knoble

refused to let Appellant in her house, Appellant requested to stay at the

Victim’s apartment for the night, but the Victim refused. Ultimately, the Victim

agreed to rent a room for Appellant at the Quality Inn in Easton.

      Later that morning, Appellant again contacted Ms. Knoble and asked her

to pick him up on Northampton Street in Easton. When Ms. Knoble arrived,

Appellant entered her car and reported that he had shot and killed someone

and that “they were safe now.” Trial Ct. Op., 3/10/16, at 2. Ms. Knoble told




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police that Appellant showed her a cell phone video that depicted Appellant in

a room along with the body of a nude male surrounded by blood.1

        About an hour later, Ms. Knoble contacted the Easton Police Department

(“EPD”) to report that Appellant had told her that he had killed someone and

that, based on Appellant’s statements to her, she believed he intended to

shoot and kill police officers. The EPD began searching for Appellant. During

their search, Ms. Knoble informed police that Appellant continued to contact

her via text messages and phone calls and repeatedly threatened to shoot

police officers.    As a result of this information, when the EPD arrested

Appellant, the Commonwealth charged him with two counts of Terroristic

Threats at Docket No. CP-48-CR-0001405-2015 (“Docket No. 1”).2

        During the course of their search for Appellant,3 EPD obtained

information that Appellant was in Ms. Knoble’s Easton home. Police converged

on the home and, through negotiations, Appellant surrendered that afternoon.

Police then conducted a protective sweep and, with Ms. Knoble’s consent,

subsequently searched the home. They seized two cell phones: the Victim’s

white Samsung S5 cell phone; and Appellant’s Kyocera cell phone, which he

had used to communicate with Ms.Knoble and on which he had shown her the

video of himself with the Victim’s deceased body. Police officers also seized a
____________________________________________


1   See also N.T. Suppression Hrg., 10/13/15, at 46.

2   One count each of 18 Pa.C.S. § 2706(a)(1) and 18 Pa.C.S. § 2706(a)(3).

3EPD’s search for Appellant required the lockdown of a local elementary school
and daycare.

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semi-automatic .40-caliber firearm; a dark-colored pea coat; a cell phone

charger; a backpack; a ball cap; various clothes; and ammunition.

       Later in the day on March 11, 2015, EPD received a call from Priscilla

High, reporting that she was concerned about her friend, the Victim. After

receiving a report that the Victim was last seen the previous night entering

the Quality Inn in Easton, EPD officers went to the Quality Inn. The desk clerk

confirmed that the Victim had checked in to Room 418, and provided police

with a copy of the Victim’s driver’s license and his room receipt.        Police

proceeded to Room 418 and found the Victim’s naked body.            An autopsy

determined the Victim had died from a single gunshot wound to the head. The

coroner ruled his death a homicide.

       Surveillance video from the fourth floor of the Quality Inn showed

Appellant and the Victim entering Room 418 together in the early hours of the

morning of March 11, 2015. The video also showed Appellant leaving the

room at approximately 8:00 AM wearing the grey coat the Victim had been

wearing earlier that night. The surveillance footage shows that no one other

than Appellant entered or exited the room until the arrival of police later that

day.

       Based upon this evidence, and the evidence indicating that the firearm

found in Ms. Knoble’s home was the weapon used to commit the homicide and

to shoot Ms. Douglas’s rental car, EPD arrested Appellant pursuant to a

warrant on March 18, 2015. The Commonwealth ultimately charged Appellant

with First-Degree Murder, Robbery, and two counts of Firearms Not to be

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Carried Without a License at Docket No. CP-48-CR-0001413-2015 (“Docket

No. 2”).4

       On April 13, 2015, EPD obtained a warrant to search the contents of

Appellant’s cell phone. That same day, EPD Inspector Dan Reagan provided

Appellant’s cell phone to Jonathan Langton, a digital forensic analyst assigned

to the Petzold Digital Forensics Laboratory. Using forensic software, Langton

extracted data from it, identifying multiple still images.      One photo of

particular note depicted the Victim lying face down on a bed in a pool of blood

with a wound on his head.5 At that time, the software did not uncover any

video images on Appellant’s cell phone.

       On June 24, 2015, the Commonwealth filed a Motion for Joinder of the

Informations filed at Docket No. 1 and Docket No. 2.       On July 24, 2015,

Appellant filed a Response to the Motion for Joinder and an Omnibus Pretrial

Motion. After a hearing, on September 9, 2015, the court issued an Order

joining Docket No. 1 and Docket No. 2 for trial. Appellant subsequently filed

two Supplemental Pretrial Motions requesting, inter alia, the suppression of

the photographic evidence obtained from the search of his cell phone.


____________________________________________


418 Pa.C.S § 2502(a); 18 Pa.C.S. § 3701(a)(1); and 18 Pa.C.S. § 6106(a)(1),
respectively.

5 According to Langton’s analysis of the file, Appellant took the picture on
March 11, 2015 at 5:45 AM, and attempted to delete it at 12:28 PM that same
day. This image is a separate photograph, not part of a video file. N.T. Trial,
1/26/17 at 22-23.



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       On September 16, 2015, the court arraigned Appellant on separate

charges of Possession of a Firearm Prohibited, Criminal Mischief, and

Unauthorized Use of an Automobile6 at Docket No. CP-48-CR-0003844-2015

(“Docket No. 3”) arising from his actions on the morning of March 10, 2015.

       On December 15, 2015, the Commonwealth filed a Motion for Joinder of

Informations seeking to join Docket No. 3 with the previously-joined Docket

No. 1 and Docket No. 2. After a hearing, on March 7, 2016, the trial court

granted the Commonwealth’s Motion for Joinder.               It denied Appellant’s

Omnibus Pretrial Motions on March 10, 2016.7

       Meanwhile, on December 16, 2015, Appellant requested that the

Commonwealth provide digital copies of the data retrieved from Appellant’s

cell phone, in April 2015, to his expert.            The Commonwealth informed

Appellant that it had already turned over all requested materials and advised

that Appellant could arrange with Inspector Reagan to conduct their own

examinations of certain cell phones.           Thus, in early January 2016, at the

request of Barry Golazeski, Appellant’s expert, Inspector Reagan asked that

Langton provide the raw data he extracted from Appellant’s cell phone to



____________________________________________


618 Pa.C.S. § 6105(a)(1); 18 Pa.C.S. § 3304(a)(1); and 18 Pa.C.S. § 3928(a),
respectively.

7 Thus, the court deemed the photograph found on Appellant’s cell phone
admissible. Appellant does not challenge the validity of the April 13, 2015
search warrant in the instant appeal.



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Golazeski.8 Langton attempted to provide Golazeski with the raw data, but

was unable to because the hard drive where he had stored the data had

crashed.

       Langton believed that the only way to comply with the request of

Appellant’s expert was to re-extract the data from Appellant’s cell phone.

Thus, on January 8, 2016, Inspector Reagan took the cell phone, which had

continuously been in police custody since its seizure in March 2015, back to

the Petzold Laboratory where Langton conducted a second extraction on

January 12, 2016. Police did not obtain a new search warrant in connection

with this extraction.

       The second extraction process took longer than the first, and identified

additional data. Langton was able to recover additional evidence during the

second extraction because the software originally used had been updated.9

Using the updated software, Langton recovered two video files depicting

Appellant in a hotel room with the deceased Victim.

       The videos retrieved in the second search existed as files separate and

independent from each other and separate and independent from the still


____________________________________________


8 Langton testified that Golazeski did not want the report that Langton had
created from the data extracted from Appellant’s cell phone in April 2015.
Rather, Golazeski wanted to analyze the raw data itself. N.T. Suppression
Hrg., 10/25/16, at 20.

9 Langton testified that the software he used, the Cellebrite digital forensic
suite, updates automatically approximately six to ten times per year. N.T.
Suppression Hrg., 10/25/16, at 14.

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photographs discovered during the first search.         The first video was

approximately 25 seconds long and depicted Appellant in what appeared to be

Room 418 of the Quality Inn. The video showed Appellant with the Victim,

who was bound and appeared to be deceased as Appellant narrates the video

and pans the camera over himself and the Victim. The second video is close

to one minute long, and depicts the Victim face down covered in blood in what

appeared to be Room 418. On the video Appellant references a bullet hole in

the Victim’s head.   Images of Appellant and the Victim are present in the

second video as well as the first. Langton could not determine when Appellant

had made the videos, but concluded that Appellant attempted to delete them

at 12:36 PM and 12:37 PM on March 11, 2015.

      Langton provided the raw data retrieved from the second extraction to

Appellant’s expert on January 14, 2016.

      On July 15, 2016, Appellant filed a Third Supplemental Omnibus Pretrial

Motion seeking to suppress the two video files obtained from the second

search of his cell phone. Appellant alleged that law enforcement agents of the

Petzold Digital Forensics Laboratory performed the second extraction without

a warrant and without any applicable exception to the warrant requirement in

violation of his Fourth Amendment right to be free from unreasonable searches

and seizures. See Third Supplemental Omnibus Pretrial Motion, 7/15/16, at

¶¶ 16-17. Appellant further argued that, to the extent police ever secured a

warrant to search his cell phone, they did not support the warrant with


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probable cause. See id. at ¶ 18. Thus, Appellant sought the suppression of

evidence obtained from both data extractions.

       The suppression court held a hearing on October 25, 2016. Inspector

Reagan and Langton testified extensively about the second extraction of data

that revealed the videos.

       On December 6, 2016, the court denied Appellant’s Third Supplemental

Omnibus Pretrial Motion, finding that the original search warrant obtained for

Appellant’s cell phone was supported by probable cause and authorized both

the first and second data extractions.

       Appellant’s jury trial began on January 9, 2017. Relevant to the instant

appeal, the Commonwealth presented the testimony of Inspector Reagan and

Langton, as well as that of M. Knoble. Ms. Knoble specifically testified about

the timeline of events and the video of the Victim that Appellant had shown

her.

       On January 31, 2017, the jury convicted Appellant of two counts each

of Terroristic Threats and Firearms Not to be Carried Without a License, and

one count each of First-Degree Murder, Criminal Mischief, and Unauthorized

Use of an Automobile.       Appellant waived his right to a Pre-Sentence

Investigation.

       On February 1, 2017, the court sentenced Appellant to life imprisonment

for his First-Degree Murder conviction, and an aggregate sentence of 9½ to

28 years’ imprisonment for the Firearms Not to be Carried Without a License,


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Terroristic Threats, Criminal Mischief, and Unauthorized Use of an Automobile

convictions.

       Appellant filed a timely appeal from his Judgment of Sentence. Both

Appellant and the trial court complied with Pa.R.A.P. 1925.10

       Appellant raises the following two issues on appeal:

       1. The [t]rial [c]ourt erred in joining the Information charging
          Appellant with [T]erroristic [T]hreats and the Information
          charging Appellant with [C]riminal [M]ischief with the
          Information charging Appellant with [C]riminal [Homicide].

       2. The [t]rial [c]ourt erred in failing to suppress the videos
          obtained from Appellant’s cell phone in January 2016.

Appellant’s Brief at 4.
                                         Joinder

       In his first issue, Appellant challenges the trial court’s joinder of his three

Criminal Informations. In particular, Appellant claims that joining the offenses

prejudiced him because the charged offenses were not based on the same act

or transaction, and their joinder allowed the jury to hear evidence against him

that would not have been admissible in separate trials. Id. at 21.

       “Whether to join or sever offenses for trial is within the trial court’s

discretion and will not be reversed on appeal absent a manifest abuse thereof,

or prejudice and clear injustice to the defendant.”            Commonwealth v.

Wholaver, 989 A.2d 883, 888 (Pa. 2010).

____________________________________________


10Rather than submit a separate Rule 1925(a) Opinion, the trial court directed
this Court’s attention to its September 9, 2015, March 7, 2016, March 10,
2016, and December 16, 2016 Opinions as the places in the record where the
court set forth the reasons for its decisions.

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      Pennsylvania Rules of Criminal Procedure 582(A)(1) provides that

distinct offenses which do not arise out of the same act or transaction may be

tried together if the “evidence of each of the offenses would be admissible in

a separate trial for the other and is capable of separation by the jury so that

there is no danger of confusion[] or the offenses charged are based on the

same act or transaction.” Pa.R.Crim P. 582(A)(1)(a)-(b). If the trial court

finds that the evidence is admissible and the jury can separate the charges,

the court must also consider whether consolidation would unduly prejudice

the defendant. Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super.

2005).

      While evidence of other criminal behavior is not admissible to

demonstrate a defendant’s propensity to commit crimes, it may be admissible

to   prove   “motive,   opportunity,   intent,   preparation,    plan,   knowledge,

identity[,] or absence of mistake or accident so long as the probative value of

the evidence outweighs its prejudicial effect.” Commonwealth v. Smith, 47

A.3d 862, 867 (Pa. Super. 2012) (citing Pa.R.E. 404(b)(2), (3)).

      Another exception is the common law “same transaction” or “res gestae”

exception.   Commonwealth v. Brown, 52 A.3d 320, 325-26 (Pa. Super.

2012). This exception is applicable in “situations where the distinct crimes

were part of a chain or sequence of events which formed the history of the

case and were part of its natural development.”        Id.      In other words, the

exception applies to prior bad acts “which are so clearly and inextricably mixed

up with the history of the guilty act itself as to form part of one chain of

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relevant circumstances, and so could not be excluded on the presentation of

the case before the jury without the evidence being rendered thereby

unintelligible.” Id. at 330–31 (emphasis omitted).

      In the instant case, the trial court first considered the Commonwealth’s

Motion for Joinder of Appellant’s Criminal Homicide and related charges with

his Terroristic Threats charges, i.e., Docket No. 1 and Docket No. 2. The court

found that each of the offenses was “so interwoven that the [I]nformations

must be joined in order to demonstrate the history and natural development

of the facts.” Trial Ct. Op., 9/9/15, at 2 (unpaginated). The court explained

that “[t]hese two cases occurred almost simultaneously, were investigated

simultaneously, and share common facts[.]”            Id.   Therefore, the court

concluded that the Commonwealth demonstrated that these offenses

“occurred within the same transaction or occurrence.”        Id. The court also

found that “denying the Commonwealth the opportunity to present the overall

picture and natural sequence of events by trying these offenses separately

would confuse and mislead the jury.” Id. Thus, the court concluded that the

probative value of joinder outweighed the potential prejudice to Appellant.

      Next, the court considered the Commonwealth’s Motion for Joinder of

Appellant’s Criminal Mischief and Unauthorized Use of an Automobile charges

(Docket No. 3) with the previously joined Criminal Homicide and Terroristic

Threats charges (Docket No. 1 and Docket No. 2). The court’s explanation for

its decision to grant this Motion for Joinder was similar to its prior explanation.

See generally Trial Ct. Op., 3/7/16.           In addition, the court noted that

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Appellant’s mother “continuously contacted both [Appellant] and law

enforcement in such a short amount of time, regarding all three cases, which

helps link these crimes as one sequence of events and not as distinct.” Id. at

2 (unpaginated). The court specifically concluded that “the elements of the

crimes are straightforward and will not be difficult for a jury to distinguish.”

Id.

      Following our review, we agree with the trial court. Given the timeline

of events and the interrelatedness of Appellant’s crimes as described above,

including his use of the same weapon to shoot at Ms. Douglas’s vehicle and to

kill the victim, the evidence of each crime would have been admissible in the

trials for the other offenses so that the jury could fully understand the natural

development of the case. Thus, we conclude that the trial court did not abuse

its discretion in granting the Commonwealth’s Motions for Joinder. Appellant

is not entitled to relief on this issue.

                    Suppression of Cell Phone Video Evidence

      In his second issue, Appellant challenges the denial of his Motion to

Suppress the video evidence obtained during the second search of his cell

phone.

      We review the trial court’s decision to deny a motion to suppress to

determine “whether the suppression court’s factual findings are supported by

the record and whether the legal conclusions drawn from those facts are

correct.” Commonwealth v. Freeman, 150 A.3d 32, 34 (Pa. Super. 2016).

Further, “[b]ecause the Commonwealth prevailed before the suppression

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court, we may consider only the evidence of the Commonwealth and so much

of the evidence for the defense as remains uncontradicted when read in the

context of the record as a whole.” Id. We are bound by the suppression

court’s factual findings where they are supported by the record, and we may

reverse only if the court’s legal conclusions are erroneous. Id. at 35. Because

this Court’s mandate is to determine if the suppression court properly applied

the law to the facts, our scope of review is plenary. Id.

      Appellant claims that the “Commonwealth’s warrantless search of the

[c]ell [p]hone and extraction of the raw data therefrom . . . violated

[Appellant’s] privacy rights[.]” Appellant’s Brief at 22. Analogizing the second

search of his cell phone to the search of a home, Appellant argues that the

second search, which took place nine months after police conducted the initial

search, was “well outside the ‘outer limit’ of any ‘reasonable delay’ between

the issuance and execution” of the authorizing warrant.          Id. at 24 (citing

Pa.R.Crim.P. 205(A)(4)(a)) (“Each search warrant shall be signed by the

issuing authority and shall . . . direct that the search be executed . . . within

a specified period of time, not to exceed 2 days from the time of issuance[.]”).

Appellant argues in the alternative that he did not consent to the second

search   of   his   phone   using   updated    software   that    enhanced    the

Commonwealth’s ability to extract data. Id. at 26. He posits that he may not

have wanted his expert to review the extracted data had he known that, in

order to do so, the Commonwealth would extract additional and extremely

prejudicial evidence. Id. at 28. Last, Appellant disputes that the introduction

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of the two videos was harmless error.              Id. at 29.    Appellant, therefore,

concludes that the court erred in not suppressing the seized video files. Id.

at 25.

         The Commonwealth avers that the April 2015 search warrant authorized

the subsequent January 2016 search and extraction of data from Appellant’s

cell phone.      In the alternative, the Commonwealth asserts that Appellant

consented to the search because the EPD conducted the search pursuant to

Appellant’s request for information.11

         It is well-settled that the extraction of data from a cell phone constitutes

a search that requires police to obtain a search warrant prior to extraction.

Riley v. California, 134 S.Ct. 2473 (2014).

         It is generally the case that police must speedily execute searches

conducted pursuant to a warrant because the decision to issue a warrant

“must be based on facts which are closely related in time to the date the

warrant is issued.” Commonwealth v. Shaw, 281 A.2d 897, 899 (Pa. 1971).

However, our Supreme Court has recognized that “[t]here are times when the

facts and circumstance[s] presented to the magistrate [in support of the

warrant]      remain    unchanged        long   after   the     warrant   is   issued.”

Commonwealth v. McCants, 299 A.2d 283, 286 (Pa. 1973). In instances




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11   Commonwealth’s Brief at 20, 24-27.



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where the facts and circumstances upon which the search warrant was based

remain unchanged with the passing of time, probable cause still exists.12

       On April 13, 2015, after demonstrating the existence of probable cause,

the Commonwealth obtained a warrant to extract data from Appellant’s cell

phone. That same day, Langton extracted data from Appellant’s cell phone

pursuant to that valid warrant.          Nine months later, Langton conducted a

second extraction in order to fulfill Appellant’s expert’s request to review the

raw data.

       Here, this Court’s review of the record reveals that the facts and

circumstances supporting the issuance of the April 13, 2015 search warrant

remained unchanged at the time of the second extraction. EPD had legally

seized Appellant’s cell phone from Ms. Knoble’s residence with her consent in

March 2015. EPD then secured the phone to ensure that it remained in its

original condition and that no one could alter its contents. Appellant’s cell

phone was in police custody during the entirety of the relevant period and

remained unalterable. It is, thus, evident that the facts and circumstances

presented to the magistrate who issued the initial search warrant did not

change.     Accordingly, we conclude that the April 13, 2015 search warrant

authorized     the   subsequent      search    and   obviated   the   need   for   the

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12 Cf. U.S. v. Edwards, 415 U.S. 800 (1974) (upholding, in the context of a
warrantless search incident to arrest, the validity of a subsequent search of
the defendant’s property where the initial search was legal and the property
had remained in police custody in the intervening period).



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Commonwealth to obtain another warrant.13          Appellant is, therefore, not

entitled to relief on this issue.

     Judgment of Sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/24/18




____________________________________________


13Having so concluded, we decline to address the Commonwealth’s contention
that Appellant’s expert’s request for raw data indicated Appellant’s consent to
the subsequent search of his phone.

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