J-S24006-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CURTIS THOMAS                              :
                                               :
                       Appellant               :   No. 1537 EDA 2019

        Appeal from the Judgment of Sentence Entered January 22, 2019
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0005587-2017


BEFORE:      BENDER, P.J.E., STABILE, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED JULY 27, 2020

        Appellant, Curtis Thomas, appeals from the judgment of sentence of life

imprisonment without the possibility of parole, and a consecutive term of 10-

20 years’ incarceration, imposed after he was found guilty of first-degree

murder, fleeing or attempting to elude an officer, and two counts of persons

not to possess a firearm. After careful review, we affirm.

        The trial court provided the following summary of the facts underlying

Appellant’s conviction. Just before noon on November 1, 2017,

        David Roth was in his living room watching television when he
        heard screeching tires outside at the intersection of Wyoming and
        South 9th Streets in Allentown, Lehigh County, Pennsylvania. Roth
        immediately looked out the window and saw a silver car—later
        determined to be an Acura—stopped on Wyoming [S]treet facing
        east[,] and a purple Honda Ridgeline stopped on South 9th Street
        facing south. Roth saw the Acura’s driver—later identified as
        Charles Hughes III—get out, walk around the front of his vehicle,
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
J-S24006-20


     and look at the passenger side. He also saw a black male wearing
     black pants and a black hoodie walk from the side of the Honda
     into the intersection. Hughes appeared to be gesturing to the man
     from the Honda. Roth saw the man return to the Honda and go
     to the rear driver’s door. The man then walked back to the
     intersection with a shotgun in his hand, pointed the gun at
     Hughes, and fired one shot. Hughes stumbled back and collapsed
     on the sidewalk. The man ran back to the Honda and drove away,
     heading south on South 9th street.

     Another resident near the intersection, Kayla Espinal, was in her
     second-floor bedroom when she heard what sounded like a car
     crash outside. Espinal looked out the window and saw a purple
     truck with tinted back windows stopped on South 9th Street facing
     south just past the intersection with Wyoming Street. Espinal
     also observed the silver Acura parked on Wyoming Street facing
     east. She saw the truck’s driver—a black male with dreadlocks
     wearing black pants, a black hoodie, and glasses—and the Acura’s
     driver, Mr. Hughes, yelling at each other. After about 15 to 30
     seconds, Espinal heard the truck’s driver tell Hughes he had
     something for him, and saw him walk back to the truck and
     retrieve a shotgun. Espinal saw the man walk back towards
     Hughes while pointing the gun down. She saw the man move his
     hand along the gun and heard two click sounds. She then saw the
     man raise the gun and point it at Hughes. Espinal immediately
     closed her eyes and heard a gunshot. Espinal ran downstairs and
     looked outside. She saw Hughes lying on the sidewalk. The truck
     and shooter were gone.

     Allentown Police responded to the area and found Mr. Hughes
     deceased on the sidewalk. After speaking with the witnesses,
     police broadcasted a description of the truck and shooter. Police
     also obtained surveillance video from a nearby business that
     showed a purple Honda Ridgeline traveling south on South 9th
     Street just minutes before the shooting. A horizontal white sticker
     could be seen in the bottom left corner of the back window of the
     Honda.

     Approximately two hours later, in the area of 6th and Walnut
     Streets, Allentown Police observed a purple Honda Ridgeline with
     a white sticker on the driver’s side rear window. Officers followed
     the truck north on 6th Street. The truck was stopped at a red light
     at 6th and Linden Streets. An officer in a marked unit activated
     his siren, at which point the driver of the Honda ran the red light
     and drove north. At 6th and Turner Streets, the driver briefly

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       pulled over, but then turned right and proceeded east on Turner
       Street. While attempting to turn left on 5th Street, the driver lost
       control and came to a stop on the sidewalk at the northeast corner
       of 5th and Turner Streets. Police ordered the driver—later
       identified as [Appellant], Curtis Thomas—out of the vehicle and
       placed him into custody. There was a female juvenile passenger
       that was also taken into custody. A subsequent search of the
       truck revealed two cell phones, a shotgun, and shotgun shells.
       The shotgun had one spent shell in the chamber and four live
       shells in the magazine. One cell phone—a black Motorola in a blue
       case—was found on the driver’s floor, turned on, and displaying a
       navigation application.

       [Appellant] was taken to police headquarters and was interviewed
       after waiving his Miranda[1] rights. [Appellant] did not admit to
       shooting Mr. Hughes, but acknowledged it was his truck in the
       photo and that he was the only person that drove the truck that
       day. He also advised that there was a shotgun in the truck, which
       was his. Police ultimately obtained and executed a search warrant
       for the black Motorola cell phone. Text messages, videos, and
       photos were recovered from the phones. Many of the videos and
       photos depicted [Appellant].

       Following an autopsy on Mr. Hughes, the cause of death was found
       to be a shotgun wound to the chest and the manner of death was
       ruled a homicide. Ballistics analysis of the shotgun and shells
       taken from [Appellant]’s truck determined they matched the
       ammunition type, gauge, pellet size, and manufacturer as the
       wadding and pellets retrieved from Mr. Hughes’ body.

Trial Court Opinion (“TCO”), 8/5/19, at 2-4.

       The Commonwealth charged Appellant with first-degree murder, 18

Pa.C.S. § 2502(a); fleeing or attempting to elude an officer, 18 Pa.C.S. § 906;

and two counts of persons not to possess a firearm, 18 Pa.C.S. § 6105.

Appellant filed motions to suppress 1) evidence obtained from the search of

his cellphone and, 2) the statement he made to police while in custody. The


____________________________________________


1   See Miranda v. Arizona, 384 U.S. 436 (1966).

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trial court conducted a suppression hearing on May 15, 2018. On August 17,

2018, the court filed an opinion and order denying the suppression motions.

See Suppression Opinion (“SO”), 8/17/18, at 7 (determining that Appellant’s

Mirandized statement to police was voluntary), 10 (concluding that the

warrant was not defective). On December 14, 2018, following a bifurcated

trial, Appellant was convicted on all counts. The jury found him guilty of first-

degree murder and fleeing or attempting to elude an officer, and the trial court

found him guilty of both firearms offenses.

      On January 22, 2019, the trial court sentenced Appellant to life

imprisonment without the possibility of parole for first-degree murder, and to

a consecutive term of 10-20 years’ incarceration for persons not to possess a

firearm. The court determined that the second firearm offense merged for

sentencing purposes.    Appellant filed timely post-sentence motions, which

were denied on April 29, 2019, and he then filed a timely notice of appeal.

Appellant filed a timely, court-ordered Pa.R.A.P. 1925(b) statement, and the

trial court issued its Rule 1925(a) opinion on August 5, 2019.

      Appellant now presents the following questions for our review:

         A. Did the trial court err when it denied [Appellant]’s pretrial
            motion to suppress statements [he] made during an
            interrogation and following his receiving Miranda
            warnings[,] which [Appellant] believes were not knowingly,
            intelligently, and voluntarily waived?

         B. Was the search warrant for the seizure and search of
            [Appellant]’s cell phone proper or was it overbroad and [did
            it] insufficiently set forth the evidence to be seized during
            the search?


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         C. Did the trial court erroneously permit the entry as evidence
            at trial of various text messages taken from [Appellant]’s
            cell phone when those text messages were not sufficiently
            authenticated as having been sent by [Appellant]?

         D. Was the jury verdict supported by sufficient evidence to
            sustain the finding of [Appellant]’s guilt for the charge of
            [first-degree] murder … when [he] believes he was not
            adequately identified as the perpetrator of the homicide?

Appellant’s Brief at 9-10 (unnecessary capitalization omitted).

      Appellant’s first two claims concern the suppression of evidence.

      Our standard of review in addressing a challenge to the denial of
      a suppression motion is limited to determining whether the
      suppression court’s factual findings are supported by the record
      and whether the legal conclusions drawn from those facts are
      correct.    Because the Commonwealth prevailed before the
      suppression 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. Where the suppression court’s factual findings are
      supported by the record, we are bound by these findings and may
      reverse only if the court’s legal conclusions are erroneous. [If]
      the appeal of the determination of the suppression court turns on
      allegations of legal error, the suppression court’s legal conclusions
      are not binding on an appellate court, whose duty it is to
      determine if the suppression court properly applied the law to the
      facts. Thus, the conclusions of law of the courts below are subject
      to our plenary review.

Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (cleaned up).

                  Suppression – Appellant’s Statement

      In his first claim, Appellant asserts that his statement to police should

have been suppressed because it was not voluntarily, intelligently, and

knowingly given. Appellant argues that there “was no indication that [he] was

ever advised that the questioning would involve the alleged homicide. The

detectives only spoke about the ‘earlier accident’ without clarifying that they


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were referring to the alleged homicide of Mr. Hughes.” Appellant’s Brief at

19. It is undisputed that Appellant waived his Miranda rights before making

his statement to police. Thus, Appellant asserts that his Miranda waiver was

not knowingly and intelligently effectuated because he was ostensibly unaware

of the reason he was being interrogated by police.

      In determining whether a defendant’s waiver of his Miranda
      rights is valid, a trial court must consider: (1) whether the waiver
      was voluntary, in the sense that the waiver was not the result of
      governmental pressure; and (2) whether the waiver was knowing
      and intelligent, in the sense that it was made with full
      comprehension of both the nature of the right being abandoned
      and the consequence of that choice. The Commonwealth bears
      the burden of establishing that a defendant knowingly and
      voluntarily waived his Miranda rights. Factors to be considered
      in determining whether a waiver is valid and a confession is
      voluntary include: the duration and means of interrogation; the
      defendant’s physical and psychological state; the conditions
      attendant to the detention; the attitude exhibited by the police
      during the interrogation; and any other facts which may serve to
      drain one’s powers of resistance to suggestion and coercion.

Commonwealth v. Patterson, 91 A.3d 55, 76 (Pa. 2014) (cleaned up).

      In Commonwealth v. Collins, 259 A.2d 160 (Pa. 1969), our Supreme

Court held that “an intelligent and understanding waiver of the right to counsel

is impossible where the defendant has not been informed of the crime which

is being investigated.” Id. at 163. The Court further opined that “[i]t is a far

different thing to forgo a lawyer where a traffic offense is involved than to

waive counsel where first[-]degree murder is at stake.” Id.

      When a defendant challenges the validity of his Miranda waiver
      on this basis, the Commonwealth must establish, by a
      preponderance of the evidence, that the defendant was aware of
      the reason for the interrogation. The Commonwealth can meet


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     this burden through evidence of the circumstances surrounding
     the interrogation, such as the fact that the interrogation follows
     hard upon the criminal episode and there is no circumstance
     lending ambiguity to the direction and purpose of the questioning.

Commonwealth v. Johnson, 160 A.3d 127, 138 (Pa. 2017) (cleaned up).

     In rejecting this claim, the trial court reasoned that Appellant

     was aware of the general nature of the interview, and there was
     no “palpable ambiguity” as to why the detectives were
     interviewing him. [Commonwealth v.] Dixon, 379 A.2d [553,
     557 (Pa. 1977)]. [Appellant] stated he had just arrived in
     Allentown from D.C. that morning, so it would not be reasonable
     to believe Allentown Police were questioning him about some
     other matter; just two hours after the shooting, [Appellant] fled
     from police when they attempted to stop him; and the detectives
     interviewed him an hour later-just three hours after the shooting-
     and told him they wanted to talk about the accident earlier in the
     day. Additionally, [Appellant] had prior experience with Miranda
     warnings, appeared to understand everything the detectives were
     saying to him, and responded appropriately.

     [Appellant] relies on … Dixon … to support his argument that [he]
     may have believed he was being questioned about driving his car
     off the road. However, the holding in Dixon hinged on the fact
     that Ms. Dixon was previously advised she would be arrested if
     she did not comply with a restitution order stemming from a prior
     conviction. Additionally, Ms. Dixon was questioned about three
     weeks after the incident and not “hard upon the criminal episode.”
     Id. at 556. The same ambiguity does not exist in the case at hand.
     It would be illogical for [Appellant] to think he was stopped by
     police, ordered out of his vehicle with his hands up, arrested,
     brought to police headquarters, and interrogated for driving his
     car off the road.

     On the facts of this case, I conclude that a preponderance of the
     evidence establishes that [Appellant] knew the “occasion for the
     interrogation” at the time he waived his rights.        As such,
     suppression is not warranted.

SO at 6-7 (some citations omitted).




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      First, we agree with the trial court in rejecting Appellant’s claim that this

case is indistinguishable from Dixon.         Appellant was arrested in close

temporal proximity to the occurrence of the murder for which he was being

questioned. Dixon was questioned several weeks after her victim’s already-

decomposed body had been discovered, suggesting even far more time had

elapsed since the murder had occurred. Dixon, 379 A.2d at 554. When police

attempted to stop Appellant’s vehicle only two hours after the murder, he fled,

and was forcibly detained while still in constructive possession of the murder

weapon. Dixon, by contrast, voluntarily went to the police station without

being told the reason why the police were interested in questioning her. Id.

at 555. Dixon is clearly inapposite to the matter at hand.

      Second, we acknowledge that the officers’ initial use of the term

“accident”   potentially   created   ambiguity   regarding    the   topic   of   the

interrogation that followed Appellant’s waiver of his Miranda rights, but only

when viewed without regard to the other relevant circumstances surrounding

the interrogation. Moreover, the Commonwealth’s burden was only to show

by a preponderance of the evidence that Appellant was aware of the reason

he was being questioned. “A preponderance of the evidence is tantamount to

a ‘more likely than not’ standard.” Commonwealth v. Esquilin, 880 A.2d

523, 529 (Pa. 2005). Here, we ascertain no abuse of the trial court’s discretion

in its determination that a preponderance of the evidence demonstrated that

Appellant must have been aware that he was being questioned for a murder,




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and not for merely being involved in an accident. Accordingly, we conclude

that Appellant’s first claim lacks merit.

                Suppression – Cell Phone Search and Seizure

      Next, Appellant argues that there was insufficient probable cause for the

warrant issued to seize and search his cell phone, and/or that the warrant was

overbroad in scope. First, he contends that the affidavit of probable cause in

support of the warrant was “devoid of any reasonable supporting evidence

that the phone was used or was otherwise an integral part of [Appellant’s]

actions in planning or committing the homicide.” Appellant’s Brief at 25.

      The legal principles applicable to a review of the sufficiency of
      probable cause affidavits are well settled. Before an issuing
      authority may issue a constitutionally valid search warrant, he or
      she must be furnished with information sufficient to persuade a
      reasonable person that probable cause exists to conduct a search.
      The standard for evaluating a search warrant is a totality of the
      circumstances test as set forth in Illinois v. Gates, 462 U.S. 213,
      … (1983), and adopted in Commonwealth v. Gray, … 503 A.2d
      921 ([Pa.] 1985). A magistrate is to make a practical, common
      sense decision whether, given all the circumstances set forth in
      the affidavit before him … there is a fair probability that
      contraband or evidence of a crime will be found in a particular
      place.

Commonwealth v. Ryerson, 817 A.2d 510, 513–14 (Pa. Super. 2003)

(cleaned up).

      Here, the trial court determined that

      there was a substantial basis for a finding of probable cause for
      issuance of the search warrant. According to the search warrant
      application, a black Motorola cell phone was found on the driver’s
      side floor where [Appellant] had been sitting, just hours after the
      shooting; the phone was unlocked, powered on, and displaying a
      navigation application; and the juvenile passenger in the vehicle


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      advised he/she was in phone contact with [Appellant] following
      the shooting. Considering all the information contained within the
      four corners of the affidavit, there was a fair probability that
      evidence relevant to the shooting would be found on [Appellant]’s
      cell phone. As such, a substantial basis existed for the issuing
      authority’s finding of probable cause.

SO at 8-9.

      We agree with the trial court.    Because the phone was found in the

vehicle identified by the witnesses a few hours after the shooting, there was

a reasonable possibility that it might contain evidence relevant to the murder

investigation. It does not require much imagination to believe a phone found

in such circumstances might contain either inculpatory or exculpatory

evidence, such as location data at the time of the crime, potential recordings

of the incident itself or other events closely related to the murder, or

communications between Appellant and other persons before and after the

shooting, to name just a few possibilities. Appellant cites no authority for the

proposition that there must be probable cause to believe the phone was

directly used in the killing, rather than its merely providing some evidence

related to the killing.

       Appellant cites Commonwealth v. Wright, 99 A.3d 565 (Pa. Super.

2014), in support of his claim, but we find that case is distinguishable on the

facts and by its procedural posture. In Wright, the defendant was accused

by a witness of killing two victims. Id. at 567.    When executing a warrant

for his arrest, police claimed that after they discovered Wright in a state of

undress in his bed, they chose a pair of pants for him to put on. Id. Inside

those pants, they claimed to have discovered a cell phone, which they seized

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incident to his arrest. Id. The suppression court did not find the officers’

testimony credible, and instead believed Wright’s mother’s testimony, who

indicated that the police had seized the phone from a table next to the bed.

Id. at 568. The court then granted suppression, on the basis that the phone

had not been seized incident to his arrest. This Court affirmed the suppression

order, rejecting the Commonwealth’s assertion that the even if not seized

incident to Wright’s arrest, the phone was seized in plain view and its criminal

nature was “readily apparent.” Id. at 569.

      The instant case is distinguishable from Wright. First, Wright involved

the Commonwealth’s appeal after the trial court granted a suppression

motion. Second, the phone at issue here was not seized under some general

theory that cell phones are inherently incriminating, as had occurred in that

case. Rather, the at-issue phone was discovered by police in a context where

it was likely to aid in determining the location of Appellant and his vehicle at

the time of the murder, especially given the fact that when discovered, the

phone was observed running a navigation application. It was a reasonable

inference that if the phone was in Appellant’s possession when he was arrested

in his vehicle, it was more probable than not that it was also in his possession

at the time the murder occurred, and could therefore confirm his location at

that time, or contain messages sent immediately before or after the killing.

In either case, such information would be highly relevant to a criminal

prosecution of Appellant.   In Wright, there were no facts indicating Wright’s

possession of the phone immediately before or after the murders under

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investigation in that matter; thus it was pure conjecture that the phone had

any relevance to the murders under investigation. Accordingly, we conclude

that there is no merit to Appellant’s claim that there was insufficient probable

cause for the magistrate to issue a warrant to search Appellant’s phone.

      Second, Appellant argues that the warrant to search his cell phone was

overbroad because it permitted a search of essentially all applications and any

data contained in the phone. Appellant’s Brief at 27-28. The warrant granted

a search of:

      All user generated data stored on the handset and/or SIM card -
      including user information, ring tones, audio files, e-mails,
      websites visited, all call logs (incoming & outgoing), information,
      Short message services (SMS) - including deleted messages, and
      Multi application (App) data used to communicate and/or to store
      data on the phone, flash storage [and a]ll data stored on a flash
      memory card from within the handset.

Search Warrant, 1/26/18, at 1.

      It is a fundamental rule of law that a warrant must name or
      describe with particularity the property to be seized and the
      person or place to be searched. The particularity requirement
      prohibits a warrant that is not particular enough and a warrant
      that is overbroad. These are two separate, though related, issues.
      A warrant unconstitutional for its lack of particularity authorizes a
      search in terms so ambiguous as to allow the executing officers to
      pick and choose among an individual’s possessions to find which
      items to seize. This will result in the general rummaging banned
      by the Fourth Amendment. A warrant unconstitutional for its
      overbreadth authorizes in clear or specific terms the seizure of an
      entire set of items, or documents, many of which will prove
      unrelated to the crime under investigation. An overbroad warrant
      is unconstitutional because it authorizes a general search and
      seizure.




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Commonwealth v. Dougalewicz, 113 A.3d 817, 827 (Pa. Super. 2015)

(cleaned up).

      Here, the trial court determined that the warrant was not overbroad,

stating:

      [T]here was probable cause to believe [Appellant] was using his
      cell phone, including applications, before and after the shooting.
      The search warrant application makes clear that when dealing with
      computerized/digital information, it is common to require officers
      to seize most or all of the device’s data in order to properly identify
      and extract the relevant evidence. Additionally, a user may try to
      conceal evidence on a digital device with deceptive file names or
      extensions, or by attempting to delete files. Under the
      circumstances, the description of the items to be search[ed] for
      and seized was as specific as reasonably possible. As such, the
      warrant was not overbroad and suppression is not warranted.

SO at 10.

      Appellant nevertheless contends that he was subjected to a general

search, because the warrant issued to search his phone “was as broad as

possible.”   Appellant’s Brief at 27.     He complains that it requested “all

application data stored either on the phone or in any flash memory or in cloud

storage. It is hard to picture how the request could have been any more

general in nature or all-encompassing.” Id.

      We disagree.    The at-issue warrant permitted the search of a single

electronic device, Appellant’s cell phone; it did not permit a general search of

multiple devices or a search of multiple locations. Appellant does not dispute

that he possessed the phone, or his ownership thereof, before, during, and

immediately after the shooting. We are aware of no controlling authorities



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that suggest that the search of a single electronic device in similar

circumstances is overbroad merely because of the quantity of information it

potentially contains.

      Other than a few cases cited for boilerplate case law, Appellant points

to   only   one   in   support   of   his   argument,   this   Court’s   decision   in

Commonwealth v. Melvin, 103 A.3d 1 (Pa. Super. 2014), and his analysis

of that case is superficial at best. In Melvin, the defendant, a judge, was

accused of misusing her public office for private gain by using her publicly-

funded judicial staff to aid in her reelection campaign. Id. at 10. Pursuant to

the investigation, a warrant was issued to search virtually all of her emails

over a period of several years, from both her private and work email accounts.

Id. at 17 n.7. Melvin’s suppression motion only challenged the warrant with

respect to her private email accounts. Id.

      This Court held that the warrant was overbroad with respect to Melvin’s

private email accounts because,

      while the supporting affidavit provided probable cause that
      evidence of criminal activity could be found in emails in the
      account, it did not justify a search of every email therein, including
      those with no relation to criminal activity. Because the warrant
      permitted the seizure of every email in the account without any
      attempt to distinguish the potentially relevant emails from those
      unrelated to the investigation, it permitted a general search and
      seizure that was unconstitutionally overbroad.

Id. at 18–19 (borrowing the Court’s analysis from a companion case).

      However, Melvin did not involve a search of a single electronic device,

and the unrestricted search of the email account most closely associated with


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the criminal conduct at issue was not under review. For these reasons, we

find Melvin inapposite.

      Additionally, while probable cause existed to search the phone, it was

not immediately obvious, nor could it be, what particular applications or

functions would ultimately produce relevant evidence. Appellant’s argument

would suggest that a warrant issued to search for drugs in a car, supported

by probable cause, must additionally specify where the drugs will be found in

the car before it is searched in order to overcome the constitutional restriction

on overbroad warrants. We reject such an interpretation of the overbreadth

doctrine as practically unworkable. It is enough that probable cause existed

to search the phone for evidence related to the murder, where the phone was

in Appellant’s possession when he was apprehended shortly after the murder,

and it was reasonable to assume that it had been used immediately prior,

during, and/or after the shooting. Accordingly, we conclude the trial court did

not abuse its discretion when it denied Appellant’s suppression motion on the

basis that the warrant was not overbroad.

                               Authentication

      Next, Appellant argues that that the trial court erred when it admitted

“the messages, videos, and photographs” from Appellant’s phone without

proper authentication. Appellant’s Brief at 29.

      “Admission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial court
      clearly abused its discretion.” In Interest of F.P., 878 A.2d 91,
      94 (Pa. Super. 2005). Electronic communications, such as text
      messages, must be authenticated prior to their admission. See

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      Commonwealth v. Koch, 39 A.3d 996, 1002–03 (Pa. Super.
      2011)…. “[P]roof of any circumstances which will support a
      finding that the writing is genuine will suffice to authenticate the
      writing.” F.P., 878 A.2d at 94.

      Under Pennsylvania Rule of Evidence 901, text messages may be
      authenticated by: (1) testimony from either the author or the
      sender; (2) circumstantial evidence, including “distinctive
      characteristics” like information specifying the author-sender or
      “reference to or correspondence with relevant events” preceding
      or following the message; or (3) “any other facts or aspects of the
      [message] that signify it to be what its proponent claims.”
      Commonwealth v. Koch, … 106 A.3d 705, 712–13 ([Pa.] 2014)
      (Castille, C.J., in support of affirmance); see Commonwealth v.
      Collins, … 957 A.2d 237, 265–66 ([Pa.] 2008). Further,
      “[a]uthentication generally entails a relatively low burden of
      proof; in the words of Rule 901 itself, simply ‘evidence sufficient
      to support a finding that the item is what the proponent claims.’”
      Koch, 106 A.3d at 713 (quoting Pa.R.E. 901(a)).

Commonwealth v. Murray, 174 A.3d 1147, 1156–57 (Pa. Super. 2017).

         Instantly, Appellant challenges the authentication of the following

evidence obtained from his cellphone:

      The prosecution’s evidence taken from the phone included a text
      message sent on November 1, 2017[,] at 12:25 PM[,] in which
      the message sent from the phone to an individual known as “Billy
      Bad Azz” … stated “Gotta get another ride, had 2 dxgg a nigga
      this morning.” There was also discovered an earlier text message
      sent on October 27, 2017[,] in which the sender used the word
      “Dxgg.” Additionally, on October 19, 2017[,] [Appellant] filmed
      himself in a video during which he stated “... I found the nigga, I
      see him. He got a few of his little homies with him. I’m bout to
      run down on them niggas. No dogg, no nothing, I’m gonna show
      you niggas what’s really good with me... I am definitely about to
      go walking through this m.f. man... I’m bout to get yo bitch ass.”

Appellant’s Brief at 29.

      Appellant contends he

      must … be, at [a] minimum, circumstantially tied to the authorship
      of the electronic messages or videos that the Commonwealth

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       wish[ed] to use especially the electronic message posted the day
       of the shooting for which the Commonwealth alleged [Appellant]
       had made an admission that he was involved in a shooting. The
       Commonwealth, at the time of the hearing for its Motion in Limine,
       sought to obtain the admission of the text and other materials
       from the phone by comparing the November 1[st] text message to
       an earlier text message in which the same “word” appeared. That
       word, “Dxgg” was, according to the Commonwealth, enough to
       show that [Appellant] authored both messages and that they had
       properly    authenticated   those    same    messages.        This
       authentication, if permitted, allows Rule 901 to be validated
       through the application of one anonymous text message to verify
       a second anonymous text message. The Commonwealth failed to
       present an adequate level of authentication for either text
       message showing that it was [Appellant] who authored the
       messages. There appeared to be no showing by any other direct
       or circumstantial evidence that [Appellant] had authored the
       second message or that other individuals had been [eli]minated
       from the possible use of that phone in the creation of one or both
       of the text messages.

Id. at 32-33. We disagree.

       First, we note that Appellant fails to develop his argument with respect

to the videos.     Thus, that aspect of his claim is waived.2   As to the text

____________________________________________


2“The Rules of Appellate Procedure state unequivocally that each question an
appellant raises is to be supported by discussion and analysis of pertinent
authority.” Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa. Super.
2002); see also Pa.R.A.P. 2119(b). “Appellate arguments which fail to
adhere to these rules may be considered waived, and arguments which are
not appropriately developed are waived.      Arguments not appropriately
developed include those where the party has failed to cite any authority in
support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa.
Super. 2006) (citations omitted). This Court will not act as counsel and will
not develop arguments on behalf of an appellant. Irwin Union National
Bank and Trust Company v. Famous and Famous and ATL Ventures, 4
A.3d 1099, 1103 (Pa. Super. 2010) (citing Commonwealth v. Hardy, 918
A.2d 766, 771 (Pa. Super. 2007)).




                                          - 17 -
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messages, we agree with the Commonwealth’s analysis that the text

messages were sufficiently authenticated by ample circumstantial evidence.

       The Commonwealth stated:

       Here, the prosecutor provided the lower court with a sufficient
       foundation that authenticated the text messages:

             At 11:54 am on November 1, 2017, the victim is shot and
              killed.

             Two independent witnesses describe the shooter and his
              vehicle.   Their descriptions match [Appellant] and the
              vehicle he was driving when he is subsequently arrested - a
              maroon Honda Ridgeline.

             Four minutes prior to the shooting, at 11:50 am,
              surveillance video captures a maroon Honda Ridgeline with
              a front license plate travelling south across the 8th Street
              bridge in Allentown. There is a horizontal white sticker on
              the rear window of the vehicle.

             Two minutes later, at 11:52 am, surveillance video captured
              a maroon Honda Ridgeline with a horizontal white sticker on
              the rear window in the immediate vicinity of South 9th Street
              and Wyoming Street, which is the scene of the shooting.

             [Appellant] identified the vehicle on the surveillance video
              as his.

             Approximately 2 hours later, at 2:07 pm, Allentown
              Assistant Police Chief Gail Struss located a maroon Honda
              Ridgeline with a white sticker on its rear window in the area
              of North 6th Street and W. Walnut Street in Allentown. When
              she attempted to stop the vehicle, it fled and subsequently
              crashed in the area of 5th and Turner Streets. [Appellant] is
              the driver.


____________________________________________


      In any event, had Appellant not waived this aspect of his claim, we
would still find it meritless for the same reason we reject his claim that the
text messages were not properly authenticated, as discussed, infra.


                                          - 18 -
J-S24006-20


          Detective John Brixius arrives at the scene immediately
           thereafter.   As [Appellant] is being escorted from the
           Ridgeline, he observes a cell phone on the driver side floor
           boards of the Ridgeline, where [Appellant] had been sitting.
           The cell phone is powered on and actively running a “Waze”
           navigation app.

          As [Appellant] is escorted by police away from the Honda
           Ridgeline accident, he tells police that the girl in the
           passenger seat was not with him, he just picked her up at
           McDonald’s. He then asks police for his phone, which was
           still in the Ridgeline.

          During his interview, [Appellant] claims that he is from
           Washington[,] D.C., and travelled to Allentown around 8:00
           am that morning. He also tells police he was alone all day.

          [Appellant] further tells police the he has 2 cell phones in
           his Ridgeline. When shown the 2 phones recovered from
           the Ridgeline, [Appellant] confirms that both of them are his
           and provides police with the phone numbers associated to
           each.

          [Appellant] reiterated that the female in his car at the time
           of his arrest, was not in the car until approximately 5
           minutes prior - i.e., 2:02 pm.

          Approximately 30 minutes after the shooting, at 12:25 pm,
           a text message is sent from [Appellant]’s phone to an
           individual identified in [Appellant]’s contact list on the phone
           as “Billy Bad Azz.” This individual has a 202 area code,
           which is the area code for Washington[,] D.C., where
           [Appellant] claims to live.

          The text message sent from [Appellant]’s phone states,
           “Gotta get another ride, had 2 dxgg a nigga this morning.”

          Also on [Appellant]’s phone was a text message from his
           phone to “Ace Buggie” stat[ing], “you get that dxgg.” This
           message was sent on October 27, 2017, five days prior to
           the shooting.

          “Ace Buggie” responded to the text from [Appellant]’s
           phone, “My brother ain’t answer all day I think my father
           got one for me but I have to pull up on him no talk over the
           phone at all.”


                                    - 19 -
J-S24006-20


            On October 19, 2017, [Appellant] filmed himself with his
             phone. In the video is [Appellant] alone in his vehicle a[n]d
             he states: “I found the nigga, I see him. He got a few of his
             little homies with him. I’m bout to run down on them niggas.
             No dog, do nothing. I’m gonna show you nigga’s what’s
             really good with me ... I’m definitely bout to go walking
             through this mother fucker man ... I’m bout to get yo bitch
             ass.”

            There are approximately 70 more similar videos [Appellant]
             took of himself saved on defendant’s phone.

            Police also found hundreds of images that were “selfies” of
             [Appellant] on his phone.

      N.T.[,] 12/4/18, [at] 37-39, 48-51, 61-64. See also
      Commonwealth’s Memo –Text Message Authentication, 12/7/18,
      attached hereto as Exhibit A.

      Based on the totality of the circumstances set forth above[,]
      particularly the temporal proximity between the text message in
      question and the time of the shooting (31 minutes), the proximity
      of [Appellant] at the time of the text to the scene of the crime,
      [Appellant]’s assertion of ownership and use of that phone within
      2 hours of the shooting, and the lack of another person in
      [Appellant]’s vehicle at the time of the text message – the
      electronic communication was sufficiently authenticated. As such,
      the lower court properly admitted it as evidence.

Commonwealth’s Brief at 20-22.

      The facts, collectively, more than adequately authenticated that the at-

issue content on Appellant’s cell phone was written by him.           Appellant

admitted that it was his phone, and verified the correct phone number. The

timing of the later-in-time text message was temporally connected to the

homicide. The prior message was to the same number and contact name in

Appellant’s contact list. Numerous images and videos on the phone depicted

Appellant. We ascertain no abuse of discretion in the trial court’s determining




                                     - 20 -
J-S24006-20



that “the Commonwealth sufficiently authenticated” the text messages. TCO

at 6.

                          Sufficiency of the Evidence

        Finally, Appellant challenges the sufficiency of the evidence supporting

his conviction for first-degree murder.         Specifically, he contends that the

evidence was insufficient to prove his identity, due to inconsistencies in the

testimony of the eyewitnesses. Appellant’s Brief at 35-36. This argument is

meritless.

        A claim challenging the sufficiency of the evidence is a question of
        law. Evidence will be deemed sufficient to support the verdict
        when it establishes each material element of the crime charged
        and the commission thereof by the accused, beyond a reasonable
        doubt. Where the evidence offered to support the verdict is in
        contradiction to the physical facts, in contravention to human
        experience and the laws of nature, then the evidence is insufficient
        as a matter of law. When reviewing a sufficiency claim[,] the court
        is required to view the evidence in the light most favorable to the
        verdict winner giving the prosecution the benefit of all reasonable
        inferences to be drawn from the evidence.

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal

citations omitted).

               In reviewing the sufficiency of the identification evidence,
        we note that, even though vague, tenuous and uncertain
        identifications standing alone are insufficient, our courts have held
        that evidence of identification needn’t be positive and certain in
        order to convict, although any indefiniteness and uncertainty in
        the identification testimony goes to its weight. Similarly, although
        identification based solely on common items of clothing and
        general physical characteristics is insufficient to support a
        conviction, such evidence may be considered to establish identity
        along with other circumstances and the proffered identification
        testimony.



                                       - 21 -
J-S24006-20



Commonwealth v. Minnis, 458 A.2d 231, 233 (Pa. Super. 1983) (cleaned

up).

       Here,

       [t]wo witnesses gave descriptions of the shooter, the shotgun,
       and the vehicle the shooter was driving; video footage from the
       area of the shooting captured the vehicle described; police pulled
       a matching vehicle over approximately two hours after the
       shooting; [Appellant] was driving the vehicle and matched the
       description of the shooter; a shotgun and shotgun shells were
       found in the vehicle; and ballistics connected the gun and shells
       to the projectile recovered from the victim.

       Accepting as true this evidence, as well as any reasonable
       inferences arising from it, it was sufficient in law to prove beyond
       a reasonable doubt that [Appellant] is guilty of the crimes for
       which he was convicted.

TCO at 7.

       These collective circumstances were more than sufficient to identify

Appellant as the shooter.        Any discrepancies in the evidence went to the

weight, not the sufficiency of that evidence.3 In any event, the trial court

noted that “the description[s] given by the witnesses were very similar. Both

described a black male wearing a black hoodie and driving a purple truck.”

Id. at 7. Although those descriptions were not precise (as the eyewitnesses

viewed the shooting from a distance), Appellant’s identity was further

corroborated by the circumstances of his arrest. Two hours after the shooting,

Appellant fled from police in a vehicle matching the eyewitnesses’ testimony,

and in which the murder weapon was ultimately discovered. Additionally, the
____________________________________________


3 Appellant raised a weight claim in his Rule 1925(b) statement, but
abandoned it in his brief. Accordingly, that claim is waived.

                                          - 22 -
J-S24006-20



evidence contained in Appellant’s cell phone tended to corroborate his identity

as the shooter. Accordingly, we conclude that there is no merit to Appellant’s

claim that the evidence was insufficient to establish his identity.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/27/20




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