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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DAMION GLENROY DAVIS                       :
                                               :
                       Appellant               :   No. 1055 MDA 2018

        Appeal from the Judgment of Sentence Entered February 6, 2018
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-CR-0001836-2017


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY McLAUGHLIN, J.:                             FILED MAY 31, 2019

        Damion Glenroy Davis appeals from the judgment of sentence entered

following his jury trial convictions for possession with intent to deliver

(“PWID”) and criminal use of a communication facility.1 Davis challenges the

weight and sufficiency of the evidence. He also maintains that the trial court

erred in denying his motion in limine. We affirm.

        The facts giving rise to the convictions above are as follows:

        [Davis] and confidential informant (CI) had known each other for
        approximately eight years, and CI had previously purchased drugs
        from [Davis]. On November 3, 2016, on two separate occasions,
        [Davis] delivered drugs to CI during controlled buys. The night
        before the transaction occurred, CI, who had [Davis’s] contact
        information, made contact with [Davis] via text message and
        Facebook seeking cocaine. CI used the coded term “basketball” to

____________________________________________


*    Retired Senior Judge assigned to the Superior Court.

1   35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. § 7512(a), respectively.
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       request a specific amount of cocaine – three and a half grams.
       Communication to determine price and arrange the exchange
       followed. Trooper Douglas Rost (Trooper) provided funds to CI for
       the drug purchase. CI again texted [Davis] and was told to meet.
       Trooper drove CI to the appointed place where CI then purchased
       cocaine from [Davis] for the agreed amount. . . . [Davis] was
       subsequently arrested and charged accordingly.

Trial Court Pa.R.A.P. 1925(a) Opinion (“TCO”), filed 9/18/18 on 2-3 (footnotes

omitted).2

       Prior to trial, Davis filed a motion in limine to preclude the text messages

between Davis and the CI, making arrangements to sell cocaine. At the

hearing on the motion, defense counsel argued that the Commonwealth could

not authenticate the text messages and also argued that the messages were

hearsay. In response to the hearsay argument, the trial court stated that

“[t]here’s   nothing     asserted    in   there.”   N.T.,   12/11/13,   at   17.   The

Commonwealth argued that proper authentication of the texts would be

through the testimony of the CI. It did not address counsel’s argument

regarding hearsay. The trial court ordered: “The admission of any text

message evidence shall be dependent on the Commonwealth’s ability to lay a

foundation of authenticity prior to the showing, identification, and/or

admission of said text messages at trial.” Id. at 18.

       At trial, prior to the admission of the text messages, the CI testified that

he had called Davis numerous times during the six months before the day in

question at the phone number involved in the text messages, and he
____________________________________________


2  The Commonwealth charged Davis with PWID for cocaine and marijuana,
but the jury found Davis guilty of only PWID for cocaine. See Verdict Sheet,
filed 12/13/17.

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recognized Davis’s voice as the person answering. He also testified that he

identified the phone number associated with the texts as being the number

he used to contact Davis:

           [Assistant District Attorney (ADA)]: The – is there anything
           about that document that helps you to refresh your
           recollection as to the number that you contacted or that
           number that you had to contact for Jega [Davis’ nickname]?

           [CI]: Yes

           [ADA]: And prior to this particular day, how long had that
           been a contact number for Jega?

           [CI]: I believe six months.

           [ADA]: Okay. You had another number before that?

           [CI]: Yes.

           [ADA]: And in that six months, had you ever contacted Jega
           either by text or by telephone at the particular number that
           you – that these texts came and went to?

           [CI]: Repeat the question again.

           [ADA]: Okay. Before November 3rd, had – how often or how
           many times –

           The Court: No. Had you contacted somebody at that number
           prior to November 3rd?

           The Witness: Yes. Yes.

           [ADA]: Okay. And who did that person – who did that person
           turn out to be?

           [CI]: Jega.

           [ADA]: How do you know that?



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            [CI]: That’s who owned the number that he used I guess.

            [ADA]: I’m sorry.

            [CI]: That’s the number that he used.

            [ADA]: That’s the number he used?

            [CI]: Yes.

            [ADA]: Had you also had phone conversations with him at
            that number?

            [CI]: Yes, and through Facebook.

            [ADA]: And you’ve known Jega since I believe you said
            2010?

            [CI]: Yes.

            [ADA]: You recognize his voice over the telephone?

            [CI]: Yes.

N.T., Trial, 12/12/17, at 130-31. When the Commonwealth moved to admit

the text messages into evidence, defense counsel objected on the basis of

hearsay and authentication. The trial court overruled the objection. Id. at 133.

      The jury found Davis guilty of PWID for cocaine and use of a

communication facility. The trial court sentenced him to an aggregate term of

15 to 30 months’ incarceration followed by a consecutive term of 24 months’

reporting probation. The trial court also ordered him to perform 48 hours of

community service. Davis filed a post-sentence motion, which the trial court

denied. This timely appeal followed.




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      Davis asks us to review the following:

      I.     Whether the evidence was insufficient to sustain the verdicts
             of guilt?

      II.    Whether the trial court erred in denying [Davis’s] motion in
             limine?

      III.   Whether the trial court erred in admitting text messages
             allegedly authored by [Davis] and testimony regarding the
             text messages?

      IV.    Whether the verdicts were against the weight of the
             evidence?

Davis’ Br. at 6.

SUFFICIENCY OF EVIDENCE

      When reviewing a challenge to the sufficiency of the evidence, we

consider the evidence in the light most favorable to the Commonwealth as

verdict-winner, making all reasonable inferences in favor of the prosecution.

See Commonwealth v. Neysmith, 192 A.3d 184, 189 (Pa.Super. 2018)

(citing Commonwealth v. Widmer, 744 A.2d 741, 751 (Pa. 2000)). Our

standard of review is de novo and our scope of review is plenary. Id. “The

Commonwealth may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial evidence.”

Commonwealth v. Dix, -- A.3d --, 2019 PA Super 102, at * 5 (filed April 1,

2019) (quoting Commonwealth v. Brown, 23 A.3d 544, 559 (Pa.Super.

2011) (en banc)).

      First, Davis argues that the evidence for his PWID conviction was

insufficient because “[t]he testimony and evidence at trial did not prove



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beyond a reasonable doubt that [Davis] had possession of cocaine or that he

transferred cocaine to [the CI].” Davis’ Br. at 10. We disagree.

      To sustain a conviction for PWID, “the Commonwealth must prove that

the defendant ‘possessed a controlled substance and did so with the intent to

deliver it.’” Commonwealth v. Sarvey, 199 A.3d 436, 450 (Pa.Super. 2018)

(citation omitted).

      Davis maintains that the testimony from the CI did not make sense and

therefore was insufficient to sustain the PWID conviction. See Davis’ Br. at

11. Davis thus challenges the credibility of CI’s testimony, which is a matter

of weight rather than sufficiency. See Commonwealth v. Palo, 24 A.3d

1050, 1055 (Pa.Super. 2011) (stating attacking credibility of witness goes to

weight, rather than sufficiency of the evidence).

      Here, the Commonwealth presented testimony from the CI who stated

that he met with Trooper Rost prior to purchasing narcotics from Davis. See

N.T., at 111. The CI testified that he texted Davis requesting the price of a

“basketball,” which meant cocaine. Id. at 137. He texted Davis that he would

meet him the next day. Id. at 139. The following day, the CI met with Davis

and gave him the prerecorded buy money that he received from Trooper Rost.

Id. at 34. After meeting with Davis, the CI returned to Trooper Rost with what

Trooper Rost “immediately believed to be cocaine.” Id. at 44. While meeting

with Davis, the CI was out of Trooper Rost’s view for “less than 30 seconds.”

Id. at 35. These facts were sufficient to establish that Davis was in possession

of a controlled substance, i.e., cocaine, and possessed it with the intent to

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deliver. See Commonwealth v. Lee, 956 A.2d 1024, 1028 (Pa.Super. 2008)

(evidence was sufficient for PWID conviction where police officers observed

defendant engage in two narcotics transactions and recovered narcotics from

buyers).

      Additionally, this same evidence negates Davis’ argument that there

was insufficient evidence to sustain the conviction for criminal use of a

communication facility. To sustain such a conviction, the Commonwealth must

prove “that [a] person uses a communication facility to commit, cause or

facilitate the commission or the attempt thereof of any crime” under the

Controlled Substance, Drug, Device and Cosmetic Act. 18 Pa.C.S.A. § 7512(a).

A communication facility is “a public or private instrumentality used or useful

in the transmission of signs, signals, writing, images, sounds, data or

intelligence of any nature transmitted in whole or in part, including, but not

limited to, telephone, wire, radio, electromagnetic, photoelectronic or photo-

optical systems or the mail.” 18 Pa.C.S.A. § 7512(c). The CI’s testimony

established that Davis was using a communication facility, i.e., his cell phone,

to further his intent to sell cocaine. No relief is due.

MOTION IN LIMINE

      We review the denial of a motion in limine for an abuse of discretion.

Commonwealth v. Hitcho, 123 A.3d 731, 747 (Pa. 2015). “An abuse of

discretion is not a mere error in judgment but, rather, involves bias, ill will,

partiality, prejudice, manifest unreasonableness, or misapplication of law.”

Commonwealth v. Cox, 115 A.3d 333, 336 (Pa.Super. 2015) (en banc)

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(quoting Commonwealth v. Collins, 70 A.3d 1245, 1251 (Pa.Super. 2013)).

“[T]he trial court must balance the evidentiary value of the evidence against

the potential dangers of unfairly prejudicing the accused, inflaming the

passions of the jury, or confusing the jury.” Hitcho, 123 A.3d at 748.

      Davis argues the trial court should have granted the motion in limine

because the Commonwealth did not establish the admissibility of the text

messages and the trial court erred in admitting the messages into evidence

because the Commonwealth failed to authenticate the messages. In support

of this argument, Davis cites Commonwealth v. Koch, 39 A.3d 996

(Pa.Super. 2011).

      In Koch, this Court held that the trial court abused its discretion by

allowing the admission of drug related text messages into evidence. Id. at

1006-07. Koch appealed her drug related convictions, claiming that the trial

erred in its admittance of text messages from her cell phone. Id. at 1000.

The Commonwealth’s evidence against Koch were drug related text messages

from Koch’s phone and narcotics found in her home. Id. At trial, the

Commonwealth presented testimony from an officer who confiscated Koch’s

cell phone. Id. at. 1002. He testified about the contents of the drug related

text messages from Koch’s phone but admitted that “the author of the drug-

related text messages could not be ascertained.” Id. at 1003. Additionally,

“[n]o testimony was presented from persons who sent or received the text

messages.” Id. at 1005. We concluded that “[t]he jurors had to believe the

actual text of the text messages, that is, the matters asserted therein, to

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grasp what the text messages were offered at trial to prove,” and therefore

the messages constituted inadmissible hearsay. Id. at 1006. We reversed the

judgment of sentence and in an equally divided opinion, our Supreme Court

affirmed. The Court concluded that “the messages were out-of-court

statements that were relevant, and indeed proffered, for a purpose that

depended upon the truth of their contents, as probative of [Koch’s] alleged

intent to deliver.” Commonwealth v. Koch, 106 A.3d 705, 717 (Pa. 2014)

(opinion in support of affirmance).

         Davis maintains that a new trial is required here because he never

identified the phone number as his own, his phone was not seized, and no

messages from his phone were presented at trial. Id. at 18. We will address

the admissibility and authentication issues separately.

ADMISSIBILITY

         Davis argues that “[m]essages being offered by the Commonwealth to

demonstrate drug activity or an intent to deliver are the exact type of

messages held to be inadmissible hearsay.” Davis’ Br. at 26 (citing Koch, 39

A.3d at 1006).     The Commonwealth provides no argument regarding this

issue.

         We review a claim challenging the trial court’s decision to admit

evidence for an abuse of discretion. Commonwealth v. Elliott, 80 A.3d 415,

446 (Pa. 2013). “Hearsay is an out-of-court statement offered for the truth of

the matter asserted and is inadmissible unless it falls within an exception to

the hearsay rule.” Commonwealth v. Mosley, 114 A.3d 1072, 1084

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(Pa.Super. 2015). Where “[t]he jurors had to believe the actual text of the

text messages,” the messages are being offered to prove the context of the

messages. Koch, 39 A.3d at 1006. Here, the trial court concluded that the

text messages were not offered for the truth of the matter asserted but rather

“the messages were offered to demonstrate activity involving the distribution

or intent to distribute drugs and the relationship between [Davis] and CI

sending and receiving messages with each other.” TCO at 6.

      Unlike Koch, the text messages here were not offered for their truth.

Jurors in this case did not need “to believe the actual text of the text

messages” in order for them to comprehend the Commonwealth’s point. See

Koch, 39 A.3d at 1006. The texts related to plans to sell cocaine in the future,

and were relevant to show Davis’s intent to make the sale. They were not

offered to prove that he was actually selling narcotics. Therefore, we conclude

that the trial court did not err in admitting the messages into evidence because

the messages were not hearsay.

AUTHENTICATION

      “The authentication inquiry will, by necessity, be fact-bound and case-

by-case.” Koch, 106 A.3d at 714. The standard for authenticating text

messages is not “an elevated prima facie plus” standard. Id. at 714. Rather,

the Commonwealth must only “show that the message is what the

Commonwealth claims it to be.” Id.

      Here, unlike Koch, there was “first-hand corroborating testimony from

. . . [the] recipient.” Id. at 713 (stating that “[t]his Court has not yet spoken

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on the manner in which text messages may be authenticated where, as here,

there is no first-hand corroborating testimony from either author or

recipient.”). The CI, the recipient of the text messages, testified that he

identified the phone number to be that of Davis and that following this text

messaging conversation he met with Davis and obtained the very drugs that

they discussed in the messages. Thus, the Commonwealth laid a proper

foundation to authenticate the messages.

WEIGHT OF THE EVIDENCE

      We review the denial of a weight claim for an abuse of discretion. See

Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013). A court may

not grant a new trial on a weight claim based on a mere inconsistency in the

testimony, or because it would have come to a different conclusion based on

the facts presented. Id. at 1055. “When the challenge to the weight of the

evidence is predicated on the credibility of trial testimony, our review of the

trial court’s decision is extremely limited.” Commonwealth v. Gibbs, 981

A.2d 274, 282 (Pa.Super. 2009) (quoting Commonwealth v. Trippett, 932

A.2d 188, 198 (Pa.Super. 2007)). “[U]nless the evidence is so unreliable

and/or contradictory as to make any verdict based thereon pure conjecture,

these types of claims are not cognizable on appellate review.” Id. (quoting

Trippett, 932 A.2d at 198).

      Davis claims that the trial court abused its discretion in denying his

weight claim because the testimony of his wife, Ashley Davis, contradicted the




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testimony of the CI. Additionally, he notes that the jury did not find the

testimony of the CI credible regarding the sale of marijuana.

      As the fact-finder, the jury “is free to believe all, part, or none of the

evidence.” See Commonwealth v. Clemons, 200 A.3d 441, 462 (Pa. 2019).

The jury here found credible the CI’s testimony that after texting Davis, he

met with him and purchased cocaine. In finding that testimony credible, it

discredited the testimony of Davis’s wife that the phone number the CI

contacted was not Davis’s number; she never saw Davis texting or talking on

the phone the day of the incident; and Davis had no money that day. See

N.T., Trial, 12/13/17, at 14-15. Davis’s argument is solely predicated on the

credibility of the witnesses and therefore, based on our “extremely limited

review,” we conclude that the trial court did not abuse its discretion. Gibbs,

981 A.2d at 282 (affirming PWID conviction where weight of the evidence

claim was solely based on the credibility of witnesses).

      Judgment of sentence affirmed.

Judge Pellegrini joins the Memorandum.

Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/31/2019


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