J-A04040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    KENNETH MARTIN                             :
                                               :
                       Appellant               :      No. 1962 MDA 2016

              Appeal from the Judgment of Sentence July 7, 2016
     In the Court of Common Pleas of Lycoming County Criminal Division at
                       No(s): CP-41-CR-0001662-2012,
                           CP-41-CR-0001990-2013


BEFORE:      STABILE, J., NICHOLS, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                                FILED JUNE 26, 2018

       Appellant, Kenneth Martin, appeals from the judgment of sentence of

seven and one-half to twenty years of incarceration imposed July 7, 2016,

following a jury trial resulting in his convictions for burglary, two counts of

robbery, two counts of conspiracy, aggravated assault, criminal trespass,

terroristic threats, theft, receipt of stolen property, simple assault, and

recklessly endangering another person.1 We affirm.

       Appellant and Noor Ford were acquaintances.          Notes of Testimony

(N.T.), 9/18/12, at 44-45. Mr. Ford had been selling heroin for Appellant and

owed him approximately $1,000.00. Id. On June 19, 2012, Mr. Ford was

staying in Room 214 at the Econo Lodge in Williamsport, Pennsylvania. Id.
____________________________________________


1  18 Pa.C.S. §§ 3502(a), 3701(a)(1)(ii) and (iv), 903, 2702(a)(4),
3503(a)(1)(i), 2706(a)(1), 3921(a), 3925(a), 2701(a)(1), and 2705,
respectively.


*    Retired Senior Judge assigned to the Superior Court.
J-A04040-18



at 15. Around 11:00 a.m., Appellant and two other men entered Mr. Ford’s

room without permission.           Id. at 74-75, 98.   Appellant aimed a semi-

automatic pistol at Mr. Ford and threatened to shoot him unless Mr. Ford

produced the money owed. Id. at 45, 74-75.

       When Mr. Ford replied that he did not have any money, Appellant pistol-

whipped Mr. Ford and knocked him over. Id. Appellant’s companions began

to punch and kick Mr. Ford, eventually knocking him unconscious. Id. at 34,

52. The three men ransacked Mr. Ford’s room, stealing money, heroin, an

Xbox video game console, backpack, duffelbag, and Mr. Ford’s iPhone. Id. at

44, 69, 81-82. Video surveillance from the Econo Lodge showed Appellant

and two other men leaving with a duffel bag and a backpack. Id. at 43, 81-

82.

       One of the assailants took photographs of Appellant punching Mr. Ford

in the head during the assault and of Mr. Ford’s swollen and bloody face after

the incident. Id. at 46, 48, 56. The images were then posted to social media

accounts with suggestions that Mr. Ford had been beaten due to a drug debt.2

Id. at 51, 56-58.
____________________________________________


2  The photographs were posted on the following Instagram accounts:
Snoop_Rock, DumbLoud_NR, which was Mr. Ford’s account, and Tee_Pain215.
N.T., 1/28/16, at 207-08. Instagram is an online photo-sharing and social
networking service. In re A.E., No. 1506 EDA 2013, (Pa. Super. Ct. filed June
17, 2014). “Instagram, which is owned by Facebook, Inc., describes itself as
‘a fun and quirky way to share your life with friends through a series of
pictures.’ The platform allows users to ‘post’ images online to share with their
‘followers’ or the public. Instagram also permits users to ‘like’ or comment on



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       Mr. Ford called a friend, who assisted him in reaching a hospital. Id. at

14, 16. Hospital personnel treated his injuries and contacted the police. Id.

27-28. Trooper Tyson Havens had known Mr. Ford for a few years prior to

this June 2012 incident Id. at 28. Prior to going to the hospital, Trooper

Havens went to the Econo Lodge to view the room where Mr. Ford was

assaulted and saw the blood spatter and layout of the room. Id. at 40, 49.

Trooper Havens also viewed the surveillance footage from the Econo Lodge,

which enabled him to identify two of the assailants as Terrence Forsythe, also

known as “Tee Pain,” and Michael Wills. Id. at 41, 44.

       Next, Trooper Havens visited Mr. Ford in the hospital. Mr. Ford told

Trooper Havens that he was “struck with a pistol, punched and kicked by an

individual named Snoop, by an individual named Dark, and by a third

individual whose name he did not know.” Id. at 34-35. Mr. Ford also gave

Trooper Havens the number for his stolen iPhone. Id. at 46. This number

was used to post photographs of the assault on Instagram. Id.; see also,

supra, at n.2.

       During a second interview with police, Mr. Ford described the assailant

he knew as “Snoop,” to be a man with the number “13” tattooed between his

eyes. Id. at 39. Based on the description of the tattoo, Trooper Havens was

able to identify “Snoop” as Appellant.           Id. at 51, 62-63.   During a third


____________________________________________


one another's image posts.” Graham v. Prince, 265 F. Supp. 3d 366, 372
n.2 (S.D.N.Y. 2017) (citation to record omitted).


                                           -3-
J-A04040-18



interview, Mr. Ford signed a statement typed by Trooper Havens after making

several redactions out of fear for his safety because of threats from Appellant.

Id. at 83-84, 91.

       During the course of the investigation, Helena Yancey, the mother of

one of Mr. Ford’s children, informed Mr. Ford that photographs of the assault

had been posted on Instagram. Id. at 46. Mr. Ford informed Trooper Havens,

who requested Ms. Yancey forward screenshots of the photographs to him.

Id. at 51; N.T., 1/28/16, at 176, 179-80. Upon further investigation, Trooper

Havens determined that numerous Instagram accounts had posted or

commented on the photographs.                  N.T., 9/18/12, at 50-81.   Using this

information, Trooper Havens secured a court order to obtain from Instagram

the images and comments posted, as well as all relevant account information.

Id. at 48, 51; N.T., 1/28/16, at 205. Instagram complied with the court order,

providing a zip drive containing the photographs and account information

along with a certificate of authenticity. N.T., 9/18/12, at 18.3

       In September 2012, Mr. Ford failed to appear at the scheduled

preliminary hearing. As a result, the Commonwealth asserted that Mr. Ford

was unavailable as a witness and sought to introduce his statements made to


____________________________________________


3 Based on the sources of the posted images and comments, the following
accounts were included on the court order: Snoop_Rock, DumbLoud_NR,
Tee_Pain215, Bok_WP_59, and MoneyChaser. N.T., 9/18/12, at 50-81; N.T.,
1/28/16, at 207-08.




                                           -4-
J-A04040-18



the police. N.T., 9/13/12, at 16. The Commonwealth further asserted that

Appellant waived his right to confront the witness because he was responsible

Mr. Ford’s unavailability.4 Id. The trial court did not rule from the bench but

indicated that an order would issue later that day.       Id. at 54.   Thus, the

hearing was continued. No such order appears in the record. Nevertheless,

five days later, the hearing continued, and the court referenced its prior ruling

on Mr. Ford’s unavailability and permitted the Commonwealth to introduce

statements made by Mr. Ford to the police. N.T., 9/18/12, at 3, 27-47.

       At the conclusion of the hearing, the trial court held for court all of the

charges except for burglary. Id. at 123. In June 2013, the Commonwealth

refiled the burglary charges at docket No., CP-41-CR-0001990-2013. Prior to

a second preliminary hearing on the burglary charge, Mr. Ford was located

and held on a material witness warrant.5 N.T., 3/10/14, at 61. The burglary
____________________________________________


4 There was evidence that Mr. Ford had fled from the area because of threats
received from Appellant. Trooper Havens testified that Mr. Ford told him that
if Appellant or his people found out about his cooperation, he and his family
would be put at risk and that he had received numerous calls from Appellant
and others threatening him. N.T., 9/13/12, at 20. Trooper Havens also
testified that, on June 26, 2012, Mr. Ford had received sixteen calls from
Appellant, with the longest call lasting 371 seconds. Id. at 21, 25. On this
day, Mr. Ford sent Trooper Havens several text messages claiming that he
had been high on syrup, i.e., Vicodin, and Percocet at the time he initially
recorded his statements. Id. at 21-22.

5The record indicates that there was a separate, second preliminary hearing
on the burglary charge, at which Mr. Ford was present but refused to
cooperate. See N.T., 3/10/14, at 12. However, this transcript does not
appear in the record.




                                           -5-
J-A04040-18



charge was held for court, and the trial court granted the Commonwealth’s

motion to consolidate the charges against Appellant. See Trial Court Order,

1/16/14.

       At a hearing held in March 2014 to address an omnibus motion filed by

Appellant, Mr. Ford testified that he could not remember the assault or any

statements made to Trooper Havens. N.T., 3/10/14, at 44-50. The trial court

admitted the statements given to Trooper Havens over Appellant’s standing

objection.6 Id. at 66-68, 72-90. At the conclusion of the hearing, the court

stated that it would review the evidence and issue an opinion. Id. at 99.

       In its opinion, the trial court stated that:

             The Commonwealth first argues that this court is bound …
       to the coordinate jurisdiction rule. The coordinate jurisdiction rule
       provides that judges of coordinate jurisdiction sitting in the same
       case should not overrule each other’s decisions. Departure from
       this principle, however, is allowed “in exceptional circumstances
       such as where there has been an intervening change in the
       controlling law, a substantial change in the facts or the evidence
       giving rise to the dispute in the matter, or where the prior holding
       was clearly erroneous and would create a manifest injustice if
       followed.”

             Here, there was a change in the facts or evidence giving rise
       to the dispute in the matter. When Judge Butts made her forfeiture
       by wrongdoing ruling, [Mr.] Ford was not available for the
       preliminary hearing because he could not be located. The
       Commonwealth presented audio and written statements from
       Ford and testimony from Trooper Havens that Ford left town and
       refused to disclose his whereabouts because he was concerned for
       his safety and the safety of his family. Ford has since been located
       and detained on a material witness warrant. The Court finds that

____________________________________________


6The trial court deferred its decision on Appellant’s objection on the basis of
hearsay. See N.T., 3/10/14, at 74.

                                           -6-
J-A04040-18


     this is a sufficient change in the facts to justify a reexamination of
     the forfeiture by wrongdoing ruling.

            Despite this change in the facts, however, the court reaches
     the same conclusion. Although Ford was physically present to
     testify, he allegedly could not remember any of the conversations
     or statements he made to Trooper Havens. …

           … It was apparent to the court that Ford was feigning a lack
     of memory to avoid admitting anything in [Appellant’s] presence.
     In fact, in several of the previous written and recorded statements
     Ford specifically asked Trooper Havens if the statements would be
     disclosed to [Appellant]. Notably, Ford never denied making the
     statements that Trooper Havens had attributed to him.

            Despite Ford's claim of lack of memory, he admitted that his
     signature was on the letter admitted as Commonwealth's Exhibit
     4. This letter states in relevant part: "You expect me to testify on
     your behalf then get shipped to a Philly jail where Im [sic] told
     more then [sic] once someone will get to me? This is where doing
     the right thing can depend on how you view things...

           This letter was also consistent with and similar to recorded
     statements Ford made to Trooper Havens and Williamsport
     Bureau of Police Agent Stephen Sorage, as well as another letter
     that was sent to Judge Butts, which the Commonwealth
     [submitted] as exhibits through a motion to reopen the record…

           As a whole, the evidence presented by the Commonwealth
     established forfeiture by wrongdoing to a preponderance of the
     evidence. In light of this ruling, [Mr.] Ford’s statements are not
     considered hearsay and are admissible pursuant to Pa.R.E.
     804(b)(6).

See Trial Court Opinion and Order, 9/24/14, at 5-7 (internal citations

omitted). Thus, the court found that there had been forfeiture by wrongdoing

and the statements of Mr. Ford were admissible. Id. at 7. The court denied

Appellant’s motion. Id.

     In June 2015, trial commenced before the Honorable Dudley N.

Anderson.   N.T., 6/9/15, at 1.     However, there were several disruptive


                                     -7-
J-A04040-18



incidents involving supporters of Appellant that made jurors sufficiently

uncomfortable that a mistrial was declared. See N.T., 6/11/15, at 73-85, 96-

133. A new trial was scheduled before the Honorable Michael J. Williamson,

but on the day before it was to begin, this case was reassigned from Judge

Williamson to the Honorable Marc F. Lovecchio. N.T., 1/28/16 at 5-6. As a

result of the sudden reassignment, prior to trial, Appellant presented an oral

motion to dismiss, alleging improper ex parte communication between the

prosecutor’s office and President Judge Nancy L. Butts. Id. at 20. According

to Appellant, he was prejudiced by the removal of Judge Williamson. Id. at

20-21.7

       On the day of trial, the court conducted a hearing on the motion and

permitted Appellant to call District Attorney Eric Linhardt to testify. Id. at 12.

He testified that he was:

       concerned about his -- at best I would describe it as
       unprofessional conduct during those three trials [earlier in the
       week] and what I believed was possible judicial misconduct, that
       I felt I had a responsibility to let the president judge know about
       that … I didn't ask that he be reassigned to other criminal cases.
       I just asked that he not preside over any more cases in the county
       because I didn't think it was appropriate that he was presiding
       over trials.

Id. at 14, 17.      Following the hearing, the trial court denied the motion,

concluding that the Appellant’s assertions of prejudice were merely

speculative. Id. at 27.
____________________________________________


7 Appellant suggested without support that Judge Williamson may have ruled
favorably on his pretrial motions. Id.

                                           -8-
J-A04040-18



       The Commonwealth then proceeded on its motion to have Mr. Ford again

declared unavailable as a result of Appellant’s wrongdoing. The parties agreed

that Mr. Ford could testify in the presence of the jury. See N.T., 1/28/16, at

37-38, 130. Mr. Ford stated he could not remember the assault. Id. at 97-

99. Thus, Judge Lovecchio again found that Mr. Ford was unavailable. Id. at

97-99, 128. The court found further that Appellant had forfeited his right to

cross-examine Mr. Ford because of his own wrongdoing. Id. at 128-29. The

trial court then permitted the Commonwealth to introduce Mr. Ford’s prior oral

and written statements. Id. at 112-16.

       Following the trial, the jury convicted Appellant of the aforementioned

charges. On July 7, 2016, Appellant was sentenced to four and one-half to

ten years of incarceration for burglary, followed by a consecutive sentence of

three to ten years for one count of robbery, for an aggregate sentence of

seven and one-half to twenty years of incarceration.8 Appellant timely filed a
____________________________________________


8 After a lengthy sentencing hearing, the trial court imposed sentence. While
the certified record includes a detailed sentencing order, which may well have
been dictated from the bench, we note with disapproval that the notes of
testimony do not reflect that the presiding judge stated the judgement
imposed on the record.         Rather, the transcript merely indicates in a
parenthetical, “WHEREUPON Court entered order.” N.T., 7/7/16, at 46. Even
where, as here, no sentencing complaint has arisen, this omission may have
contributed to unnecessary confusion. See, e.g., Sentencing Order, 7/7/16,
at 1-2 (unpaginated) (imposing three to ten years of incarceration for
burglary, to be served consecutive to a four and one-half to ten year sentence
for robbery, for an aggregate sentence of seven and one-half to twenty years
of incarceration);Trial Court Opinion (TCO), 5/24/17, at 3 (suggesting that the
aggregate sentence imposed was fifteen to thirty years of incarceration);
Appellant’s Brief, 8/23/17, at 9 (seemingly citing to first page of the



                                           -9-
J-A04040-18



post-sentence motion, a supplemental post-sentence motion, and additional

motions for bail and modifications of bail.

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

statement. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion.

On appeal, Appellant raises the following issues:

       1. Whether the trial court erred in permitting a witness to testify
          before a jury and subsequently rule the witness was
          unavailable?

       2. Whether the trial court erred substantively in determining that
          [Appellant] had forfeited his right to confrontation by
          wrongdoing?

       3. Whether the trial court erred in denying [Appellant]’s motion
          to dismiss based upon prosecutorial misconduct when the
          district attorney contacted the president judge to have a judge
          removed from hearing a case?

       4. Whether the trial court erred in permitting lay testimony
          concerning [I]nstagram and its authenticity?


____________________________________________


sentencing hearing transcript, which is merely a cover sheet, and suggesting
that the aggregate sentence imposed was seven and one-half to fifteen years
of incarceration). Further, the sentencing order itself is not without obvious
error. The order suggests that Appellant’s conviction at count 5, a robbery
graded as a second-degree felony, merges for sentencing purposes with his
conviction at count 2, a second robbery offense graded as a first-degree
felony. Sentencing Order. 7/7/17, at 2 (unpaginated) (similarly suggesting
that Appellant’s separate convictions for two counts of conspiracy merge).
While the court in its discretion may impose a concurrent sentence for distinct
crimes or, perhaps, no further penalty, Appellant’s multiple counts of robbery
do not merge in this case. As the facts adduced at trial demonstrate, during
the course of committing a theft, Appellant (1) threatened Mr. Ford with
immediate, serious bodily injury, 18 Pa.C.S § 3701 (a)(1)(ii), when he
threatened to shoot Mr. Ford with a handgun and (2) inflicted bodily injury
upon Mr. Ford, 18 Pa.C.S. § 3701 (a)(1)(iv), when he manually beat him about
the head causing injuries requiring hospitalization).

                                          - 10 -
J-A04040-18



See Appellant’s Brief at 3 (capitalization omitted).

      In Appellant’s first two issues, he challenges evidentiary decisions of the

trial court; as such, our review is limited.       The standard of review for

evidentiary rulings is an abuse of discretion. Commonwealth v. Hicks, 151

A.3d 216, 224 (Pa. Super. 2016), appeal denied, 168 A.3d 1287 (Pa. 2017).

In particular, it is well settled that:

      [t]he admission of evidence is solely within the discretion of the
      trial court, and a trial court's evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion. An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather occurs where the court has reached a conclusion that
      overrides or misapplies the law, or where the judgment exercised
      is manifestly unreasonable, or the result of partiality, prejudice,
      bias or ill-will.

Id. (internal citations and quotations omitted).

      First, Appellant asserts that the trial court erred procedurally when it

determined that Appellant had forfeited his right to confront and cross-

examine Mr. Ford. See Appellant’s Brief at 11, 14. Appellant notes that Mr.

Ford was called to the stand in the presence of the jury. See Appellant’s Brief

at 13. According to Appellant, this was inappropriate, as there should be a

separate hearing to determine whether forfeiture by wrongdoing applies. Id.

at 12 (citing in support U.S. v. Ledbetter, 141 F.Supp.3d 786 (S.D. Ohio

2015), and Commonwealth v. Terenda, 301 A.2d 625 (Pa. 1973)). Despite

this assertion, Appellant concedes that there is no clearly defined procedure

in Pennsylvania. Id. at 11.




                                          - 11 -
J-A04040-18



       Appellant has waived this claim, as the record demonstrates that

Appellant agreed that Mr. Ford should testify before the jury. N.T., 1/28/16,

37-38, 130; see also Commonwealth v. Baumhammers, 960 A.2d 59, 73

(Pa. 2008) (holding that an issue is waived where an appellant fails to raise a

timely objection); see also Pa.R.A.P. Rule 302(a) (“Issues not raised in the

lower court are waived and cannot be raised for the first time on appeal.”).

Accordingly,     we    conclude     that   Appellant   is   not   entitled   to   relief.

Baumhammers, 960 A.2d at 73.

       Absent waiver, we note that Appellant’s argument is without merit. The

Ledbetter court, referenced by Appellant, determined that a pretrial hearing

was most appropriate to determine whether a defendant has forfeited his right

of confrontation.9 However, the court also stressed flexibility, observing that

“[b]enefits and drawbacks abound for any procedural approach.” Ledbetter,

141 F.Supp.3d at 793. The court was rightly concerned that a forfeiture-by-

wrongdoing determination be made before permitting the jury to hear an

unavailable witness’ statements. Id. (noting, for example, that this (1) best

preserves the presumption of innocence; (2) avoids the possibility of a

mistrial; or (3) improperly influencing the jury’s ultimate verdict). We agree,

but in this case, the jury heard no statements given by Mr. Ford to

____________________________________________


9 This Court is not bound by the decisions of federal courts, but it may rely on
them for persuasive authority. See Commonwealth v. Herbert, 85 A.3d
558, 565 n.8 (Pa. Super. 2014). The forfeiture-by-wrongdoing exception
defined in Pa.R.E. 804(b)(6) is identical to F.R.E. 804(b)(6).


                                           - 12 -
J-A04040-18



investigators until after the court had reaffirmed its previous forfeiture-by-

wrongdoing decision. Moreover, the court reaffirmed its decision outside the

presence of the jury. See N.T., 1/28/16, at 128-129. To be clear, Mr. Ford

was called to the stand merely to confirm that he had no memory of the

alleged assault. Id. at 36-38. This testimony was relevant to his availability

as a witness. See Pa.R.E. 804(a)(3). He provided no testimony relevant to

the   separate,   forfeiture-by-wrongdoing    determination.    See   Pa.R.E.

804(b)(6).    Thus, the concerns voiced by the Ledbetter court are not

implicated here. Further, Appellant’s reliance on Terenda is misplaced. In

that case, our Supreme Court determined that the trial court had erred in

permitting the Commonwealth to call co-indictees to the stand, knowing they

would invoke their Fifth Amendment rights.       Terenda, 301 A.2d at 629.

According to the Supreme Court, (1) the jury knew of the crucial relationship

between the defendant and these co-indictees; (2) their invocation permitted

the jury to draw an inference adverse to the defendant; and (3) defendant

was deprived of his right to challenge this inference. Id. Here, again, the

court made its forfeiture-by-wrongdoing determination prior to admitting Mr.

Ford’s statements and outside the presence of the jury.        Therefore, no

improper inference could be drawn.

      Second, Appellant asserts that the trial court erred “substantively in

determining that [Appellant] had forfeited his right to confrontation by

wrongdoing[.]”     See Appellant’s Brief at 3 (unnecessary capitalization




                                     - 13 -
J-A04040-18



omitted).10    According to Appellant, the Commonwealth failed to introduce

testimony from Mr. Ford establishing that his unavailability was caused by

Appellant.    Id. at 16.      Rather, according to Appellant, the only relevant

testimony from Mr. Ford was introduced at the omnibus pretrial motion

hearing, at which Mr. Ford testified that he (1) did not remember telling the

detectives that anyone had threatened him; (2) did not trust the prosecution;

and (3) on cross-examination, that no one had ever threatened him.          Id.

Appellant continues, “without additional proof of wrongdoing,” Mr. Ford’s

testimony was merely unhelpful to the Commonwealth. Id. Thus, Appellant

concludes, without citation to authority, Mr. Ford’s limited testimony was

insufficient to establish forfeiture by wrongdoing. Id. at 16-17.

       Initially, we observe that Appellant again risks waiver, though on

different grounds than on his first issue. Here, Appellant has failed to cite to

any authority in support of his assertion that testimony from the unavailable

witness is necessary to establish forfeiture by wrongdoing. Id. at 15-17; see

____________________________________________


10 In the Argument section of his brief, Appellant suggests the court “erred
substantively in determining that [Mr.] Ford was unavailable.” Id. at 15
(emphasis added). This is an issue distinct from that preserved by Appellant.
A witness’ availability is addressed by criteria defined in Pa.R.E. 804(a);
whereas exceptions to the rule against hearsay that are dependent upon the
unavailability of the witness are defined in Pa.R.E. 804(b). The confusion
caused by Appellant’s presentation of his argument is only increased by his
apparent concession that, in fact, the Commonwealth established Mr. Ford’s
unavailability. Id. at 15-16 (citing Pa.R.E. 804(a)(3) and stating that Mr. Ford
testified on several occasions that he could not recall the incident). We
admonish Appellant that his arguments must be properly preserved and
developed and that he must conform to our Rules of Appellate Procedure.


                                          - 14 -
J-A04040-18



Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (“Where an appellate

brief fails to provide any discussion of any claim with citation to relevant

authority … that claim is waived. It is not the obligation of an appellate court

to formulate appellate’s arguments for him.”) (formatting modified; citation

omitted); see also Pa.R.A.P. 2119(a).

      Moreover, Appellant’s bald assertion is devoid of merit.      See, e.g.,

Commonwealth v. King, 959 A.2d 405, 411, 414-16 (Pa. Super. 2008)

(permitting an officer to read into the record the deceased victim’s statements

to establish forfeiture by wrongdoing); Ledbetter, 141 F.Supp.3d at 788-90,

(permitting hearsay testimony of an officer, the victim’s attorney, and her

friend to establish forfeiture by wrongdoing).

      Nevertheless, we note the following. Essentially, Appellant challenges

the discretion exercised by the trial court in admitting statements previously

made by Mr. Ford to investigators. These statements constituted hearsay, as

they were offered to prove the truth of the matter asserted. Pa.R.E. 801(c).

Generally, hearsay testimony is inadmissible, unless it falls within an

enumerated exception. Pa.R.E. 802. One exception allows for a witness’ out-

of-court statement to be admitted, if the defendant’s wrongdoing caused the

witness to be unavailable. A defendant forfeits his right to confrontation where

his own wrongdoing procured the unavailability of a witness. King, 959 A.2d

at 415-16 (Pa. Super. 2008) (citing Giles v. California, 128 S.Ct. 2678,

2682-83 (2008), which “recogniz[ed] the limited applicability of the forfeiture

by wrongdoing doctrine, [and] … reaffirmed its commitment to the long-held

                                     - 15 -
J-A04040-18



principle that a defendant forfeits his confrontation rights when he

intentionally procures the unavailability of a witness … [which] represents a

codification of the common-law forfeiture rule…”); see also U.S. v. White,

116 F.3d 903, 911 (D.C. Cir. 1997) (holding that “[t]he defendant who has

removed an adverse witness is in a weak position to complain about losing the

chance to cross-examine him.”).

       Here, the record supports the trial court’s finding of forfeiture by

wrongdoing. As noted previously, Mr. Ford was called to testify and denied

any memory of the assault. Thus, the court reaffirmed its prior decision to

find him unavailable. N.T., 1/28/16, at 97-99. Thereafter, following an in

camera argument, the court indicated that its previous finding of forfeiture by

wrongdoing would stand.           Id. at 99-129.   Evidence of wrongdoing was

adduced pretrial and consisted of the following: (1) three recorded

conversations with Mr. Ford to Trooper Havens describing his assault,

Appellant, and the reason for his assault; (2) phone records of calls from

Appellant to Mr. Ford; (3) evidence that on the day Mr. Ford fled the area, he

received a long call from Appellant and then sent a text message to Trooper

Havens retracting his previous statements; (4) multiple letters written and

signed by Mr. Ford11; (5) photographs from Instagram, Mr. Ford’s hotel room,

____________________________________________


11One of the letters written by Mr. Ford stated in relevant part: "You
expect me to testify on your behalf then get shipped to a Philly jail where
Im [sic] told more then [sic] once someone will get to me? This is where
doing the right thing can depend on how you view things ...” See TCO,



                                          - 16 -
J-A04040-18



and the hospital where Mr. Ford was treated; and (6) recorded prison

conversations of Appellant, in which he admitted to having a friend take

pictures of Mr. Ford and commenting on Trooper Havens’ characterization of

the photographs in his Affidavit of Probable Cause. See N.T., 1/28/16, at 97-

129.

       Accordingly, Appellant is not entitled to relief, as the trial court did not

abuse its discretion in finding forfeiture by wrongdoing and subsequently

ruling that Appellant had lost his right to cross-examine Mr. Ford. King, 959

A.2d at 415-16; Giles, 128 S.Ct. at 2682-83; White, 116 F.3d at 911.

       In Appellant’s third issue, he challenges the denial of his motion to

dismiss. Our standard of review is an abuse of discretion. Commonwealth

v. Robinson, 122 A.3d 367, 372-73 (Pa. Super. 2015) (finding abuse “where

the judgment is manifestly unreasonable or where the law is not applied or

where the record shows that the action is a result of partiality, prejudice, bias

or ill will”).

       Appellant asserts that an ex parte communication between the

Commonwealth and President Judge Butts was an impermissible attempt at

judge shopping.      See Appellant’s Brief at 17. On the day before his trial,

Appellant’s case was reassigned from Judge Williamson to Judge Lovecchio.

See id. Appellant avers that this change was a result of the conversation
____________________________________________


9/24/14, at 6-7; see also 3/10/14, at 46-48 (where Appellant read the
letter into the record in its entirety).



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between District Attorney Eric Linhardt and President Judge Butts, where the

District Attorney expressed his concerns regarding Judge Williamson’s

decision making in previous cases that week, only mentioning Appellant’s case

as one of the upcoming trials. Id. at 17-19. During the conversation, District

Attorney Linhardt did not ask for a specific judge to replace Judge Williamson,

but only asked that Judge Williamson be removed from all cases. See N.T.,

1/28/16, at 26. Appellant concedes that there is no direct evidence of judge

shopping but suggests that the Commonwealth’s actions create the

appearance of impropriety. See Appellant’s Brief at 19. Appellant contends

that this constituted prosecutorial misconduct warranting dismissal. Id.

      Generally, the Pennsylvania Supreme Court looks on judge shopping

with disfavor.   See Municipal Publications, Inc. v. Court of Common

Pleas of Philadelphia County, 489 A.2d 1286, 1289 (Pa. 1985) (holding

that where a judge has personal knowledge of the facts and testified as a

witness, he must recuse himself and have another judge decide the issue of

his impartiality, noting only in dicta, that judge shopping is condemned.); see

also Commonwealth v. Schab, 383 A.2d 819 (Pa. 1978) (holding that

neither common law nor statute empowered the Attorney General to

supersede the power of the local district attorney to initiate the prosecution of

a case; making a minor mention of there being no evidence of judge

shopping).

      However, Appellant’s argument is without merit, as there is no evidence

of judge shopping, and therefore no undue prejudice by the change in judicial

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assignments. First, Appellant presented no evidence that the District Attorney

specifically requested or preferred that Judge Lovecchio preside over

Appellant’s case. In fact, he had the opportunity to ask this during cross-

examination and did not. More specifically, District Attorney Eric Linhardt did

not request that Judge Williamson be replaced but asked that he not preside

over any cases. N.T., 1/28/16, at 26. Second, when Appellant’s case was

mentioned in the conversation, it was in the context of several upcoming

cases. Further, the trial court, when addressing this issue found that Appellant

had not established prejudice. Id. at 27. We find no abuse of discretion in

the trial court’s finding that Appellant failed to prove that the change of

presiding judge prejudiced him. Municipal Publications, Inc., 489 A.2d at

1289; Schab, 383 A.2d at 819.

      Moreover, we note the following. Absent a violation of Rule 8.2 of the

Rules of Professional Conduct, an attorney has an obligation to report concerns

with a judge’s behavior. See Pa.R.P.C. 8.3 (providing that “[a] lawyer who

knows that a judge has committed a violation of applicable rules of judicial

conduct that raises a substantial question as to the judge's fitness for office

shall inform the appropriate authority.”); see also Pa.R.P.C. 8.2 (providing

that “[a] lawyer shall not make a statement that the lawyer knows to be false

or with reckless disregard as to its truth or falsity concerning the qualifications

or integrity of a judge …”). Thus, we discern no abuse of the court’s discretion

in denying Appellant’s motion to dismiss. Municipal Publications, Inc., 489

A.2d at 1289; Schab, 383 A.2d at 819.

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      Finally, Appellant challenges other evidentiary decisions of the trial

court. As discussed, supra, we review the evidentiary rulings of the trial court

for an abuse of discretion. See Hicks, 151 A.3d at 224.

      Appellant asserts that the court erred in permitting lay testimony

concerning Instagram. See Appellant’s Brief at 3, 19. Appellant has failed to

develop this assertion in any meaningful fashion. Accordingly, we deem it

waived. Wirth, 95 A.3d at 837; Pa.R.A.P. 2119(a).

      Nevertheless, from our review of the record, it appears that Appellant

objected to Ms. Yancey’s testimony regarding her use of Instagram. See N.T.,

01/28/2016, at 174 (objecting that Ms. Yancey was not qualified to discuss

how Instagram works). The court overruled this objection, concluding that

she could “talk about how she used [Instagram] and her understanding of how

it worked.” Id. In its Pa.R.A.P. 1925(b) opinion, the court explained further

that Ms. Yancey was competent to describe her experience using Instagram,

as it was not based upon any scientific, technical, or other specialized

knowledge.    See TCO, 05/24/2017, at 25 (citing in support Pa.R.E. 701).

According to the trial court, Ms. Yancey testified in a manner “rationally

related” to her perception and “helpful to communicating a narrative.” Id.

We agree. Ms. Yancey merely described her experience using the Instagram

service, as anyone with an Instagram account would. Her testimony was not

based upon scientific or technical expertise. It was helpful to understanding

her subsequent explanation that the posted photographs of Mr. Ford were




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concerning and prompted her to send screenshots of them to the police. See

Pa.R.E. 701. Thus, we discern no abuse of the court’s discretion.

       Appellant also suggests that the court erred in admitting the

photographs, as there was no reliable evidence connecting the Instagram

postings to Appellant. Appellant’s Brief at 20 (citing in support United States

v. Browne, 834 F.3d 403 (3d Cir. 2016) (discussing the proper authentication

of Facebook chat logs)). According to Appellant, the lay testimony from Ms.

Yancey and the certificate of authenticity from Instagram were insufficient to

authenticate the photographs properly.12

       Recently, as a matter of first impression, a panel of this Court discussed

the evidentiary requirements necessary to tie a social media post to an

individual. See Commonwealth v. Mangel, --- A.3d --- , 2018 WL 1322179

(Pa. Super. 2018) (citing Browne favorably). Drawing upon prior precedent

in which this Court has examined the proper authentication of cell phone text

messages, the Mangel panel recognized the challenges presented in

authenticating electronic communications but concluded that authentication



____________________________________________


12  Again, we admonish Appellant to preserve properly and develop his
arguments. In his Pa.R.A.P. 1925(b) statement, Appellant identified three
distinct issues regarding the Instagram photos, challenging (1) the
admissibility of Ms. Yancey’s lay testimony, (2) the authentication of the
photographs, and (3) a foundation for their relevance. See Appellant’s
Pa.R.A.P. 1925(b) Statement, 12/27/2016, at 2. In his Statement of the
Questions Presented, Appellant seemingly abandoned the latter two. See
Appellant’s Brief at 3, 19. Nevertheless, we shall briefly review Appellant’s
claim.

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was possible “within the existing framework of Pa.R.E. 901 and Pennsylvania

case law.” Id. at *6. According to the panel,

       Initially, authentication social media evidence is to be evaluated
       on a case-by-case basis to determine whether or not there has
       been an adequate foundational showing of its relevance and
       authenticity. See In re F.P., 878 A.2d at 96. Additionally, the
       proponent of social media evidence must present direct or
       circumstantial evidence that tends to corroborate the identity of
       the author of the communication in question, such as testimony
       from the person who sent or received the communication, or
       contextual clues in the communication tending to reveal the
       identity of the sender.

Id. (citing also Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super.

2011)).

       Appellant’s reliance upon Browne is misplaced, as the issue raised by

him before the trial court is different than that addressed in Browne.13 During

trial, Appellant argued that there was insufficient evidence that the

photographs accurately portrayed the assault of Mr. Ford. See N.T., 1/28/16,

at 219. The question being answered by the circuit court in Browne, and by

this Court in Mangel, is how to authenticate properly text or chat message
____________________________________________


13 During Appellant’s argument he clarifies his argument by stating: “The issue
regarding the text messages and who posted these things, I believe, is a
different issue because I think the issue of the photograph, the ideal way that
this stuff comes in is by a person who was there and who could authenticate
it. The fallback position is that there may be this silent witness theory that
through circumstantial evidence they can identify that it supports the
reliability of the photograph … There is a specific way that a photograph comes
into evidence and how it has to be authenticated…under most circumstances
you need somebody to come in to -- who was there who could say that this is
a fair and accurate depiction as to what took place “ See N.T., 1/28/16, at
216-17, 219.


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evidence, mindful of the unique challenges posed by social media.            The

question before this Court is not whether Appellant posted the Instagram

images, but whether the Instagram posts accurately portrayed Mr. Ford’s

assault.   For this reason, the authority Appellant relies on in his brief is

inapposite, and he again risks waiver of this issue.

      However, photographic evidence may be authenticated by testimony

that the photograph fairly and accurately depicts the incident or object

portrayed. Commonwealth. v. McKellick, 24 A.3d 982, 986-87 (Pa. Super.

2011) (citing Nyce v. Muffley, 119 A.2d 530, 532 (Pa. 1956) (requiring that

“[a] photograph must be verified either by the testimony of the person who

took it or by another person with sufficient knowledge to state that it fairly

and accurately represents the object or place reproduced as it existed at the

time of the accident”)); see also Pa.R.E. 901(a) (“[t]he requirement of

authentication or identification as a condition precedent to admissibility is

satisfied by evidence sufficient to support a finding that the matter in question

is what its proponent claims.”).

      Here, the Commonwealth presented sufficient direct and circumstantial

evidence tending to support the authentication of the photographs of Mr.

Ford’s assault. Initially, we observe that Appellant does not accurately depict

the evidence adduced by the Commonwealth. In addition to testimony from

Ms. Yancey and the certification from Instagram, the Commonwealth

presented additional evidence of authenticity.




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     For     example,    the   Commonwealth   presented   direct    evidence   of

Appellant’s recorded prison conversations in which Appellant discusses

directing a friend to take the pictures and posting them on Instagram and in

which he disputes Trooper Havens’ characterization of the images. See N.T.,

1/28/16, at 225.         The Commonwealth also presented the compelling

circumstantial testimony of Trooper Havens, who observed both the room and

Mr. Ford on the day of the incident and could identify Mr. Ford in the

photographs.        Id. at 160-61, 222.   Further, through Corporal Brown’s

testimony,    the    Commonwealth    presented   corroborating     circumstantial

photographic evidence of the hotel room, depicting blood stains, a headboard,

and other background that matched the photographs posted on Instagram.

Id. at 133-36, 222. There was also evidence presented that the bearded,

black male delivering a punch to Mr. Ford in one of the photographs closely

resembles Appellant. Id. at 223. Based on this evidence, the court did not

err in admitting the Instagram posts, as the evidence was properly

authenticated. McKellick, 24 A.3d at 986-87. Thus, we discern no abuse of

discretion. Koch, 39 A.3d at 1005.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/26/2018


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