J. S42042/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,                :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
STEPHEN THOMAS WILLIAMS JR.,                 :
                                             :
                          Appellant          :     No. 3343 EDA 2014

            Appeal from the Judgment of Sentence November 3, 2014
              In the Court of Common Pleas of Montgomery County
                Criminal Division No(s).: CP-46-CR-0004783-2012

BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                     FILED NOVEMBER 30, 2015

        Appellant, Stephen Thomas Williams, Jr., appeals from the judgment

of sentence of, inter alia, a one-year probation and restitution entered in the

Montgomery County Court of Common Pleas after his conviction for theft by

unlawful taking, theft of property lost, and receiving stolen property at a

nonjury trial.1 Appellant claims: (1) the evidence was insufficient to sustain

the convictions; (2) the trial court erred in admitting testimony regarding

the results of a “Find My iPhone” search; and (3) the verdicts were against

the weight of the evidence.2         We find an abuse of discretion in the trial



*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3921(a), 3924, 3925(a).
2
    We have reordered the claims set forth in Appellant’s brief.
J. S42042/15


court’s denial of the Appellant’s motion for a new trial, vacate the judgment

of sentence, and remand for further proceedings consistent with this

memorandum.

      The trial court summarized the Commonwealth’s trial evidence as

follows:

               [The complainant] was working at Genesis HealthCare
           in Glenside, Montgomery County, on April 28, 2012. As
           part of his duties, he was delivering a cart from the second
           floor to the maintenance office in the basement of the
           building. He proceeded to the basement using an elevator.
           Prior to entering the elevator, [the complainant] checked
           the time on his iPhone 4s and put it back in his pocket.
           After exiting the elevator, and while pushing the cart up a
           steep ramp toward the maintenance office, he heard a
           sound.      Within twenty seconds, he arrived at the
           maintenance office, found his iPhone was missing and ran
           back to the area where he had heard the sound to look for
           it.

              While looking for the iPhone, [the complainant]
           encountered [Appellant], who asked if he had lost
           something. [The complainant] did not see anyone else in
           the area. [Appellant] began to help [the complainant] look
           for the iPhone. When it was not located, [the complainant]
           returned to the maintenance office to call the iPhone, but it
           went directly to voicemail. [The complainant] then used a
           computer in the maintenance office to access a “Find My
           iPhone”[3] application. The application did not indicate a

3
  As discussed below, the complainant described the application as follows:
“It is an app that you use for your Apple devices that show you exactly
where the location at for the device that you may have lost. That is why it is
called the Find My iPhone app.” N.T., 11/3/14, at 12. We take notice of the
following:

              One important aspect of smartphone technology is the
           ability of these devices to identify, in real time, their
           geographic location, which data can be shared with certain



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       location for the iPhone at that time. A couple of days later,
       [the complainant] tried the application again and it tracked
       the iPhone to 436 Manton Street in Philadelphia.        [The
       complainant] learned this was [Appellant’s] address and
       made a report to police.        In addition to the address
       matching information in [Appellant’s] employment records,
       police used a LexisNexis program that indicated
       [Appellant’s] address was 436 Manton Street in
       Philadelphia.      The database of the Pennsylvania
       Department of Motor Vehicles also indicated the same
       address for [Appellant].




       programs and providers to enable advanced functions. At
       present, three techniques are used to generate this
       information.       The collection of cell-site data—the
       identification of the radio cell tower or towers nearest to
       the device—is the oldest geolocation technology . . . .
       Cell-site location is arguably the least precise of the three
       methods currently used, though that precision can be
       substantially enhanced through triangulation of signals
       from multiple towers. Global Positioning System (GPS)
       data is a technique by which radio signals are received by
       the smartphone from a system of satellites in
       geosynchronous orbit and interpreted by programs to
       provide highly accurate location data. Wireless geolocation
       operates by comparing the access points used by the
       smartphone to connect to the Internet against a database
       of known router locations. Depending on the quality of the
       information in the database, this method, though similar to
       cell-site location, can be far more accurate because
       wireless transmissions have a shorter range than cellular
       transmissions.         Additional    emerging     geolocation
       technologies, including Bluetooth beacons, reportedly have
       the potential to pinpoint the location of a phone to a
       matter of inches.[ ]

In re Smartphone Geolocation Data Application, 977 F. Supp. 2d 129,
137-38 (E.D.N.Y. 2013).



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Trial Ct. Op., 2/5/15, at 1-2. We note the phone was not recovered by the

complainant or the police, and the complainant purchased a replacement

phone.

      Appellant testified at trial. He denied seeing the complainant on April

28th or picking up his phone.     He conceded his employment and official

records listed his address as 436 Manton Street, but asserted he did not live

there at the time of the incident. Appellant also called a coworker to testify

that he no longer resided at 436 Manton Street.

      The trial court, on November 3, 2014, found Appellant guilty of theft

by unlawful taking, theft of property lost, and receiving stolen property.

Appellant waived the preparation of a presentence report, and the court

sentenced him that same day to concurrent probationary terms of one year

for theft by unlawful taking and receiving stolen property, restitution of

$211.99, a fine of $250.00, and costs.        Appellant timely filed a post-

sentence motion challenging the weight of the evidence, which the trial court

denied on November 19, 2014.

      Appellant timely filed a notice of appeal and complied with the trial

court’s order to submit a Pa.R.A.P. 1925(b) statement. This appeal follows.

      Appellant presents the following three questions, which we have

reordered for review:

           ARE APPELLANT’S CONVICTIONS FOR THEFT BY
         UNLAWFUL TAKING, THEFT OF PROPERTY LOST OR
         MISPLACED, AND   RECEIVING  STOLEN PROPERTY



                                    -4-
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         SUPPORTED      BY    LEGALLY   SUFFICIENT    EVIDENCE   OF
         RECORD?

            DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN
         IT PERMITTED, OVER DEFENCE OBJECTION, TESTIMONY
         REGARDING THE VICTIM’S USE OF A “FIND MY iPHONE”
         APPLICATION TO ALLEGEDLY FIND THE LOCATION OF THE
         HIS LOST CELLULAR TELEPHONE?

            DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN
         IT DENIED APPELLANT’S MOTION FOR A NEW TRIAL ON
         THE GROUND THAT THE GUILTY VERDICTS WERE
         AGAINST THE WEIGHT OF THE EVIDENCE?

Appellant Brief at 5.

      Appellant first claims the evidence was insufficient to sustain his

conviction for theft.   According to Appellant, the evidence of his “mere

presence” and “the address [the complainant] allegedly obtained using the

‘Find My iPhone’ application . . .” was too conjectural and speculative to

conclude he took and kept the phone.         Id. at 42-43. “The key piece of

evidence” was the complainant’s testimony that a “computer programme

told him that his missing cellular telephone was located at 436 Manton

Street in Philadelphia.”     Id. at 38-39.   “There was no law enforcement

co[rroboration] of the accuracy of the information [the complainant] claims

he received from his use of the ‘Find My iPhone’ and the missing cellular

telephone was never found in Appellant[’s] possession or in a location that

could be connected to him.” Id. at 42. No relief is due.

      Our standards of review are well-settled.

         In reviewing a claim regarding the sufficiency of the
         evidence, an appellate court must determine whether the


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         evidence was sufficient to allow the fact finder to find
         every element of the crimes charged beyond a reasonable
         doubt.    In doing so, a reviewing court views all the
         evidence and reasonable inferences therefrom in the light
         most favorable to the Commonwealth. Furthermore, in
         applying this standard, the Commonwealth may sustain its
         burden of proof by means of wholly circumstantial
         evidence. When performing its review, an appellate court
         should evaluate the entire record and all evidence
         received is to be considered, whether or not the trial
         court’s rulings thereon were correct. Additionally, we
         note that the trier of fact, while passing on the credibility
         of witnesses and the weight of the evidence, is free to
         believe all, part, or none of the evidence.

Commonwealth v. Galvin, 985 A.2d 783, 789 (Pa. 2009) (citations

omitted) (emphases added); see also Commonwealth v. Yong, 120 A.3d

299, 311 (Pa. Super. 2015) (reiterating this Court will not review sufficiency

claim based on diminished record.).

      “To   uphold   a   conviction    for   theft   by   unlawful   taking,   the

Commonwealth must establish the accused ‘unlawfully takes, or exercises

unlawful control over, movable property of another with intent to deprive

him thereof.’”   Galvin, 985 A.2d at 791 (quoting 18 Pa.C.S. § 3921(a)).

Theft of property lost is defined as follows:

         A person who comes into control of property of another
         that he knows to have been lost, mislaid, or delivered
         under a mistake as to the nature or amount of the
         property or the identity of the recipient is guilty of theft if,
         with intent to deprive the owner thereof, he fails to take
         reasonable measures to restore the property to a person
         entitled to have it.

18 Pa.C.S. § 3924. “Receiving stolen property is established by proving that

the accused ‘intentionally receives, retains, or disposes of movable property


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of another knowing that it has been stolen, or believing that it has probably

been stolen, unless the property is received, retained, or disposed of with

intent to restore it to the owner.’” Galvin, 985 A.2d at 792 (quoting 18

Pa.C.S. § 3925(a)).

      Instantly, Appellant’s arguments focus on the evidence that he took

control of the phone after the complainant dropped it. The trial evidence,

when viewed in a light most favorable to the Commonwealth, provides three

pieces of circumstantial evidence that Appellant took control of the phone.

First, the complainant dropped his phone in the basement hallway between

the elevator and the maintenance office.      N.T., 11/3/14, at 8, 10, 17.

Second, Appellant was the only person the complainant saw in that location

when he returned to look for his phone less than a minute later. Id. at 10.

Third, a tracking application located the phone at Appellant’s address several

days later. Id. at 12-13.

      Because a review of the sufficiency of the evidence focuses on the

quantum of evidence based on an undiminished record, see Galvin, 985

A.2d at 789; Yong, 120 A.3d at 311, we do not reassess or discount the

record evidence that the complainant’s electronic search revealed the phone

was located at Appellant’s address. Thus, the totality of the circumstances

provided an adequate basis for the trial court to infer Appellant took control

of the complainant’s phone.




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      Appellant   next    claims   the   trial    court   erred   in   permitting   the

complainant to testify regarding the results of the tracking application. He

argues the complainant’s “testimony as to what the computer application

told him does not fall within any of the exceptions” to the general rule

excluding hearsay.       Appellant’s Brief at 27.         Further, he contends the

complainant’s testimony violated the “best evidence rule” and suggests “the

Commonwealth was required to produce either a copy of the computer

screen . . . or a computer printout” of the results. Id. at 28-29.

      In response, the trial court asserts Appellant waived his hearsay

argument.    Trial Ct. Op. at 6.    It suggests it properly ruled there was an

adequate foundation to admit the complainant’s testimony, “subject to a

determination of its weight.”      Id.    The court further suggests “the best

evidence rule did not apply” because the complainant did not have the

means to generate an original writing and there was no evidence of a bad

faith failure to produce a writing. Id. at 6-7.

      The Commonwealth notes Appellant “alluded to, but never specifically

raised, a hearsay objection” at trial.           Commonwealth’s Brief at 9.         The

Commonwealth, arguendo, notes that the complainant’s testimony was not

hearsay because it established the investigating detective’s course of

conduct when confirming Appellant’s address.                Id. at 11-12.       As to

Appellant’s “best evidence” argument, the Commonwealth agrees with the

trial court that an original writing was not required because “there was no



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recording of the results of the tracking application.” Id. at 14. Lastly, the

Commonwealth argues any error in the admission of the complainant’s

testimony was harmless. Id. at 19-20.

     We first consider whether Appellant has waived his hearsay argument.

Appellant framed his objections to the subject testimony as follows:

        [Appellant’s Counsel]: I have an oral motion in limine to
        exclude any testimony regarding a GPS tracking system
        that is vaguely referenced in the Affidavit of Probable
        Cause.

        THE COURT: What is the basis of your objection?

                                 *    *    *

        [Appellant’s Counsel]: Judge, the Affidavit of Probable
        Cause makes a vague reference to, quote, GPS tracking
        feature. And it is alleged that this tracking feature tracked
        the missing phone to a particular address.

           So what we have is an out-of-court basically statement
        used to—as proof of the matter asserted.

           It would be the same thing and they provided no
        discovery on the GPS tracking.

                                 *    *    *

        . . . It just says GPS tracking feature, Your Honor. And I
        would submit to the Court much like a video that, first of
        all, they need a foundation. They need to lay a foundation
        that this GPS tracking system is actually something, that it
        is legitimate, that it has some sort of accuracy.

           And I would submit that I should be able to cross-
        examine on that foundation.

        THE COURT: Well, I think you do. But that will go to the
        weight of the evidence. I am going to deny your motion.



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N.T. at 3-5.   After the trial court’s ruling, Appellant’s counsel placed the

following on the record: “[M]y objection to it is based on two reasons: One,

the lack of foundation; and two, the best evidence rule.”4 Id. at 6.

      We reiterate,

         Pursuant to Pennsylvania Rule of Appellate Procedure 302,
         “Issues not raised in the lower court are waived and
         cannot be raised for the first time on appeal.” Pa.R.A.P.
         302(a). With respect to evidentiary rulings, “Error may
         not be predicated upon a ruling that admits [ ] evidence
         unless . . . a timely objection, motion to strike[,] or motion
         in limine appears of record, stating the specific ground of
         objection, if the specific ground was not apparent from the
         context[.]” Pa.R.[E.] 103(a)(1).

Commonwealth v. Parker, 104 A.3d 17, 28 (Pa. Super. 2014), appeal

denied, 117 A.3d 296 (Pa. 2015).       “[A]n appellant may not raise a new

theory for an objection made at trial on his appeal.” Commonwealth v.

Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (citation omitted).

      Appellant’s counsel initially suggested the complainant’s testimony was

hearsay because the purported location of the phone was being admitted for

the truth of the matter asserted. Nevertheless, his arguments in support of

the objection focused on a narrow set of claims based on foundation and the

best evidence rule.   See N.T. at 3-5.        Thus, Appellant’s current hearsay

argument presents a new theory not properly developed at trial.            See

Parker, 104 A.3d at 28. Accordingly, we are constrained to find Appellant’s

4
   Appellant’s counsel renewed his objection during the complainant’s
testimony. However, those objections the same as his motion in limine.
See N.T. at 11, 13.



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hearsay argument waived, but will address his best evidence argument.

See id.; N.T. at 6.

        Our standard of review is as follows:

           When ruling on a trial court’s decision to grant or deny a
           motion in limine, we apply an evidentiary abuse of
           discretion standard of review. The admission of evidence
           is committed to the sound discretion of the trial court, and
           a trial court’s ruling regarding the admission of evidence
           will not be disturbed on appeal “unless that ruling reflects
           ‘manifest unreasonableness, or partiality, prejudice, bias,
           or ill-will, or such lack of support to be clearly erroneous.’”

Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010) (citations

omitted).

        Pennsylvania Rule of Evidence 1002 states: “An original writing,

recording, or photograph is required in order to prove its content unless

these rules, other rules prescribed by the Supreme Court, or a statute

provides otherwise.”5 Pa.R.E. 1002. Rule 1004, however, provides:


5
    Pennsylvania Rule of Evidence 1001 provides:

           (a) A “writing” consists of letters, words, numbers, or their
           equivalent set down in any form.

           (b) A “recording” consists of letters, words, numbers, or
           their equivalent recorded in any manner.

                                    *     *      *

           (d) An “original” of a writing or recording means the
           writing or recording itself or any counterpart intended to
           have the same effect by the person who executed or
           issued it. For electronically stored information, “original”
           means any printout—or other output readable by sight—if



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             An original is not required and other evidence of the
         content of a writing, recording, or photograph is admissible
         if:

               (a) all the originals are lost or destroyed, and not by
            the proponent acting in bad faith;

               (b) an original cannot be obtained by any available
            judicial process;

                (c) the party against whom the original would be
            offered had control of the original; was at that time put
            on notice, by pleadings or otherwise, that the original
            would be a subject of proof at the trial or hearing; and
            fails to produce it at the trial or hearing; or

               (d) the writing, recording, or photograph is not
            closely related to a controlling issue.

Pa.R.E. 1004 (a)-(d).

      “[I]f the originals are not available at trial in criminal cases, through

no fault of the Commonwealth, secondary evidence is permissible.”

Commonwealth v. Dent, 837 A.2d 571, 589 (Pa. Super. 2003) (citation

omitted). “If the Commonwealth does not need to prove the contents of the

writing or recording to prove the elements of the offense charged, then the

Commonwealth     is   not   required   to   introduce   the   original   writing   or

recording.” Id. at 590 (citation omitted).

      Following our review, we find no reversible error.         As noted by the

Commonwealth, the complainant’s testimony was admissible for non-

         it accurately reflects the information. An “original” of a
         photograph includes the negative or a print from it.

Pa.R.E. 1001(a)-(b), (d).



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hearsay purposes, that is, to establish a foundation for a course of conduct

and not prove an element of an offense. See Commonwealth’s Brief at 11-

12. Thus, an “original” was unnecessary to show why the detective initiated

an investigation into Appellant’s association with 436 Manton Street.     See

Pa.R.E. 1002, 1004(d).

      Moreover, even if the trial court admitted the complainant’s testimony

for the truth of the matter asserted, we discern no abuse of discretion in its

reasoning that there were adequate explanations for the absence of an

original writing. See Pa.R.E. 1004(a), (b); cf. Commonwealth v. Lewis,

623 A.2d 355, 358-59 (Pa. Super. 1993) (holding best evidence rule

precluded officer’s “secondary” evidence that video recording showed

defendant’s companion taking item from store shelf and explanation for

unavailability of tape was unsatisfactory).   Thus, we agree with the trial

court that the best evidence rule did not preclude the admission of the

complainant’s testimony regarding the results of his electronic search for his

phone and that Appellant’s objections went to the weight rather than

admissibility.

      Appellant lastly claims the verdicts were against the weight of the

evidence. He emphasizes that the complainant testified he had a “hunch”

that Appellant had taken his phone, but he failed to consider he lost his

phone in a different location. Appellant’s Brief at 47-48. He also criticizes

the limited investigation by police, which merely confirmed that the address



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obtained by the complainant was that of Appellant’s.              Id. at 48-49.

Appellant thus asserts that the trial court abused its discretion when denying

his post-sentence motion seeking a new trial. Relief is due.

      The following precepts govern our review.

              A claim alleging the verdict was against the weight of
           the evidence is addressed to the discretion of the trial
           court. Accordingly, an appellate court reviews the exercise
           of the trial court’s discretion; it does not answer for itself
           whether the verdict was against the weight of the
           evidence. It is well settled that the [fact-finder] is free to
           believe all, part, or none of the evidence and to determine
           the credibility of the witnesses, and a new trial based on a
           weight of the evidence claim is only warranted where the .
           . . verdict is so contrary to the evidence that it shocks
           one’s sense of justice.        In determining whether this
           standard has been met, appellate review is limited to
           whether the trial judge’s discretion was properly exercised,
           and relief will only be granted where the facts and
           inferences of record disclose a palpable abuse of
           discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      The trial court addressed Appellant’s weight of the evidence claim as

follows:

              The evidence credited by this court, including the
           testimony of [the complainant] and Detective John Cotton,
           demonstrates [Appellant] came into possession of the
           property of [the complainant] and kept it, despite
           know[ing] it rightfully belonged to [the complainant]. This
           court did not credit [Appellant’s] testimony regarding the
           incident, particularly in light of his denial that he did not
           help [the complainant] look for the iPhone and was not
           even in the same area of the building at the time.
           Similarly, this court did not credit the testimony of
           [Appellant] and his co-worker regarding his address at the


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         time of the offense. Rather, this court found credible the
         testimony demonstrating that work records and public
         records linked [Appellant] to 436 Manton Street in
         Philadelphia. . . .

                                  *     *      *

             As discussed previously, the evidence credited by this
         court . . . amply demonstrated that [Appellant] came into
         possession of the property of [the complainant] and kept it
         . . . . [Appellant] therefore is not entitled to relief on his
         challenge to the weight of the evidence.

Trial Ct. Op. at 4-5, 8.

      As noted above, circumstantial evidence was critical to the trial court’s

denial of Appellant’s motion for a new trial.      Although our review reveals

inconsistencies in the complainant’s testimony regarding where he dropped

the phone in the basement,6 it was within the province of the trial court, as

finder of fact, to resolve those inconsistencies.     Further, the gist of the

complainant’s testimony was unequivocal: he dropped his phone somewhere

in the basement hallway and when he searched for the phone less than a

minute later, Appellant was the only person he saw in the area.

      However, the complainant’s testimony regarding the day he lost his

phone only established Appellant’s presence in the area of the lost phone.


6
  For example, the complainant testified he believed he dropped his phone
while pushing a cart up a ramp and heard an unusual sound. However, he
testified on direct examination that he went from the elevator through a
door to the ramp. Later, on cross-examination, he stated he went down the
ramp and through the door to look for his phone, and then saw Appellant on
the other side of the door. He further indicated Appellant looked like he was
coming out of the bathroom.



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The complainant’s electronic tracking of his phone was the critical evidence

underlying Appellant’s conviction for unlawfully taking possession of the

phone.

      As the proponent of the evidence, the Commonwealth bore the burden

of adducing indicia of reliability supporting the complainant’s testimony

regarding the results from the tracking application. Cf. Commonwealth v.

Bujanowski, 613 A.2d 1227, 1233-34 (Pa. Super. 1992).               The record,

however, is devoid of any foundation upon which to conclude that his search

was reliable or could produce the purported result.            The complainant

described the technology as one “that you use for your Apple devices that

show you exactly where the location at for the device that you may have

lost.” See N.T. at 12. The investigating detective testified only that when

the complainant reported the incident, he passed along a handwritten note

bearing the 436 Manton Street address.         The Commonwealth adduced no

further evidence regarding the actual capabilities of the application used,

i.e., whether it could produce a specific street address, rather than depict a

location on a map.       Further, the Commonwealth failed to establish a

foundation that the complainant possessed the experience or knowledge to

use the application properly.        Such indicia of reliability and authenticity

were particularly important given the absence of any objective evidence of

results of a tracking application.




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      Further, the record reveals no evidence establishing how long the

complainant was able to track the phone at the location or address or

whether the phone was stationary or moving.        Thus, even assuming the

complainant’s testimony was reliable, it established no more than a passing

connection to the purported address.

      The totality of the evidence in this appeal may have been “so clear,

direct, weighty, and convincing as to enable [the fact-finder] to come to a

clear conviction, without hesitancy, of the truth of the precise facts [in]

issue.” See Commonwealth v. Maldonado, 838 A.2d 710, 715 (Pa. 2003)

(citations omitted) (discussing clear and convincing standard). However, the

beyond a reasonable doubt standard requires more.        That latter standard

applies in criminal cases “due to the gravity of the private interests

affected[, and] a societal judgment that, given the severe loss that occurs

when an individual is erroneously convicted of a crime, the public should

bear virtually the entire risk of error.” Id. “The heavy standard applied in

criminal cases manifests our concern that the risk of error to the individual

must be minimized even at the risk that some who are guilty might go free.”

Id. at 716 (citation omitted).

      In light of the foregoing, the trial court’s review of the record and its

application of the relevant burden of proof evince an abuse of discretion in

its denial of Appellant’s motion for a new trial. Further, having reviewed the

entire record, a conviction for unlawfully taking the complainant’s phone



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based on the Commonwealth’s decision to prosecute based upon its

acceptance of a hunch, a handwritten note with Appellant’s address of

questionable foundation, and a confirmation that the address was Appellant’s

“shocks the conscience.” Thus, the court’s order denying a new trial must

be reversed.

     Judgment     of   sentence   vacated.   Case   remanded    for   further

proceedings. Jurisdiction relinquished.

     Judge Shogan joins the memorandum.

     Judge Mundy notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/30/2015




                                    - 18 -
