J-S56039-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA,                 IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                             Appellee

                        v.

    WILLIAM MCRAE,

                             Appellant               No. 2572 EDA 2016


              Appeal from the Judgment of Sentence July 22, 2016
                in the Court of Common Pleas of Monroe County
               Criminal Division at Nos.: CP-45-CR-0000152-2014
                            CP-45-CR-0000153-2014


BEFORE: BOWES, J., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED DECEMBER 06, 2017

        Appellant, William McRae, appeals from the judgment of sentence

imposed on July 22, 2016, following his jury conviction, in two consolidated

cases, of one count each of murder in the first degree, conspiracy, robbery,

unlawful restraint, theft by unlawful taking, receiving stolen property, and

tampering with evidence, and his non-jury conviction of prohibited possession

of a firearm.1 On appeal, Appellant challenges the denial of his motion for a

mistrial, various evidentiary rulings of the trial court, and the denial of his



____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2501, 903, 3701, 2902, 3921, 3925, 4910, and 6105,
respectively.
J-S56039-17


motion to suppress his statements to the police.     For the reasons discussed

below, we affirm.

       We take the underlying facts and procedural history in this matter from

the trial court’s October 17, 2016 opinion, and our independent review of the

certified record.

             On July 31, 201[3], the Pocono Mountain Regional Police
       Department (hereinafter “PMRPD”) responded to a report of an
       injured man. The PMRPD arrived at the Emerald Lakes Estates
       residence and found Gerald Rothbart bleeding from his head, with
       his hands zip–tied behind his back. Rothbart had responded to a
       Craigslist personal ad, which he believed to be an [eighteen]-year-
       old female soliciting sex. However, upon his arrival to meet the
       “female” at a wooded area in Emerald Lakes, two males attacked
       Rothbart. One of the males wielded an aluminum baseball bat and
       struck Rothbart multiple times. The males took Rothbart’s wallet,
       money, and credit cards.

             On August 6, 2013, a PMRPD patrol officer in Emerald Lakes
       reported a Nissan Altima with its rear window blown out and a
       deceased male inside. The male was identified as Brandon
       Fraser,[2] who was lying face down in the back of the car, dead
       from a gunshot wound to the back of the head. Through
       investigation it was revealed that Fraser masterminded the
       robbery of Rothbart. Fraser had posted the Craigslist ad, and had
       texted with Rothbart for approximately one month, posing as the
       [eighteen]-year-old female.

             On August 7, 2013, as part of the robbery investigation,
       PMRPD executed a search warrant on Appellant’s house. Appellant
       shared the house with his mother, Sharon McRae-Coe. Ms.
       McRae-Coe had informed the PMRPD that her home had a video
       surveillance system and that Fraser was in her house on July 31,
       2013. After observing the surveillance video obtained from
____________________________________________


2 The victim’s name is occasionally spelled “Frazier” in the certified record.
(See e.g., N.T. Trial, 5/10/16, at 109). As the spelling “Fraser” is used the
majority of the time, and as this is the version used by the parties, in the
interest of continuity, we will use that spelling.

                                           -2-
J-S56039-17


        Appellant’s residence, PMRPD found that the footage implicated
        Appellant, Fraser, and Emily Woodman in a conspiracy to commit
        the robbery of July 31, 2013. Based on this footage, the PMRPD
        executed another search warrant on Appellant’s residence.

              On August 11, 2013, a criminal complaint was filed charging
        Appellant with three counts of [r]obbery, two counts of [c]riminal
        [c]onspiracy to [c]ommit [r]obbery, and one count each of
        [a]ggravated [a]ssault, [u]nlawful [r]estraint, [t]heft by
        [u]nlawful [t]aking, [r]eceiving [s]tolen [p]roperty, and
        [p]ossessing [i]nstruments of a [c]rime. A warrant was issued for
        Appellant’s arrest in connection with the robbery of Rothbart. In
        order to locate Appellant, PMRPD arranged for the wiretap of
        several phone conversations between Appellant and Kwaku Sims.
        These wiretaps were conducted with Sims’ consent. The PMRPD
        learned from these conversations that Appellant was in New York.

              On August 19, 201[3], the U.S. Marshall’s Office arrested
        Appellant and took Appellant into custody to await extradition.
        That same day, Appellant had retained Attorney Lamb to
        represent him in New York. Also on August 19, 2013[,] Lieutenant
        Chris Wagner and Detective Sargent Kenneth Lenning of the
        PMRPD went to New York to interview Appellant for the first time.
        Appellant’s attorney was not present during the interview, but
        Detective Sargent Lenning verbally advised Appellant of his
        Miranda[3] rights. [Appellant signed a waiver of his Miranda
        rights and made a statement to the police.]. . . .

                                           *     *   *

              On December 18, 2013, Appellant waived extradition and
        was returned to Pennsylvania. That same day, a new criminal
        complaint was filed against Appellant charging him with one count
        each of [c]riminal [h]omicide, [t]ampering with [p]hysical
        [e]vidence, and [p]rohibited [p]ossession of a [f]irearm. After
        arraignment before Magisterial District Judge Richard Claypool,
        Appellant was held without bail.

            Also on December 18, 2013, but before he was arraigned,
        PMRPD interviewed Appellant for a second time, this time at
        PMRPD headquarters. Lieutenant Wagner was again present,
____________________________________________


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

                                           -3-
J-S56039-17


     accompanied by Detective Christopher Boheim. Appellant was
     properly Mirandized and Appellant never made any clearly
     articulated invocation of his Miranda rights.

            On January 21, 2014, the criminal complaints from August
     11, 2013 and December 18, 2013 were consolidated into a single
     hearing before MDJ Claypool, who held all charges for [the trial
     c]ourt. On January 30, 2014, the Commonwealth filed [c]riminal
     [i]nformation[]s for both matters.    Pursuant to Pa.R.Crim.P.
     582(B)(1), on February 10, 2014 notice was given to the Appellant
     that the above-captioned cases were joined for trial.

           On July 2, 2014, Appellant filed an [o]mnibus pretrial
     motion. A hearing on said [m]otion was held on August 25, 2014
     and [the trial c]ourt issued its [o]pinion on January 20, 2015. On
     December 16, 2015, Appellant filed a motion to sever the two
     cases. A hearing was scheduled on December 21, 2015. [The trial
     c]ourt issued its [o]pinion denying Appellant’s motion to sever on
     March 4, 2016.

           Appellant filed supplemental pretrial motions on April 5,
     2016, requesting: 1) [the trial court] preclude the Commonwealth
     from introducing evidence about “the facts and circumstances
     surrounding the Appellant’s conviction for [b]urglary in
     11/04/09;” 2) [s]everance, and a bench trial of the offense of
     [p]ersons not to [p]ossess a [f]irearm; 3) the Commonwealth be
     precluded from introducing the certified records from Joseph
     Harrigan of his [w]ritten [j]uvenile [a]llegation, [a]dmission
     [f]orm, [a]djudicatory [h]earing [o]rder, and [s]tatement of
     [f]acts; 4) [the trial court] preclude the Commonwealth from
     introducing any evidence of the pending assault charges; and 5)
     a continuance. After conference and submission of memoranda
     of law in support of their respective positions, [the trial court]
     granted Appellant’s motion[]s to exclude evidence of his burglary
     and his subsequent assault charge. [The trial court] further
     granted Appellant’s severance request but denied his continuance
     request. By stipulation of counsel, the Commonwealth agreed to
     not introduce the certified records of Joseph Harrigan.

           [At trial, Enrique Perez testified that he was involved in a
     feud with Appellant over monies he claimed Appellant owed him
     for damaging his motorcycle. (See N.T. Trial, 5/11/16, at 33-36).
     He stated that, on the evening of July 18, 2013, a car drove up to
     his home and beeped, a woman passed him an object wrapped in

                                   -4-
J-S56039-17


     toilet paper and said, “[t]his is compliments of Will.” (Id. at 33).
     Appellant was the only Will that Mr. Perez was engaged in a
     dispute with. (See id.). The object was a shell. (See id.). Mr.
     Perez reported the incident to the police. (See id. at 36-37). He
     described the woman as being mixed race, light-skinned Hispanic
     and African-American. (See id. at 39).

            PMRP Patrol Officer Jeff Papi testified and confirmed that Mr.
     Perez reported the incident to him and gave him the shell in
     question. (See id. at 43-44). Office Papi stated that Appellant’s
     description of the person he was feuding with and the address he
     gave him matched Appellant. (See id. at 44-45). Officer Papi
     was unable to identify the female who delivered the shell. (See
     id. at 45). Later ballistic testing confirmed that the shell matched
     those in the murder weapon. (See N.T. Trial, 5/10/16, at 6-7).

           The Commonwealth was unable to locate the Hispanic-
     looking female in question. (See id. at 8). Approximately, two
     weeks before trial, during trial preparation with cooperating
     witness, Jacqueline Harrigan, the Commonwealth asked her if she
     could identify the female. (See id.). Ms. Harrigan volunteered
     that she was the woman in question, explaining that she tans quite
     darkly in the summer and looked Hispanic. (See id.). After the
     commencement of trial, the Commonwealth disclosed this
     information to defense counsel, who objected to its admission.
     (See id. at 6-9). However, the trial court allowed the testimony.
     (See id. at 9)].

             On May 16, 2016 Appellant was convicted by jury of [the
     above-cited offenses]. . . . Appellant was acquitted of [r]obbery—
     [i]nfliction of [s]erious [b]odily [i]njury and [a]ggravated
     [a]ssault.

            On July 22, 2016 Appellant was sentenced in case No. 153
     CR 2014 and 152 CR 2014 of life imprisonment without the
     possibility of parole followed by a period of incarceration of [not
     less than two hundred and sixty-four nor more than five hundred
     and twenty-eight months]. Appellant filed the current appeal on
     August 16, 2016 and filed his [c]oncise [s]tatement of [errors]
     [c]omplained of on [a]ppeal on September 6, 2016. [See
     Pa.R.A.P. 1925(b). On October 17, 2016, the trial court issued an
     opinion. See Pa.R.A.P. 1925(a).]

(Trial Court Opinion, 10/17/16, at 1-6) (footnotes omitted).

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J-S56039-17


      On appeal, Appellant raises the following questions for our review:

            A.    Whether the [c]ourt erred in denying Appellant’s
      [m]otion for [m]istrial after the Commonwealth admitted 404(b)
      [c]haracter [e]vidence]; [c]rimes or [o]ther [a]cts despite the
      [c]ourt’s previous ruling which granted Appellant’s [m]otion in
      [l]imine precluding 404(b) [c]haracter [e]vidence[?]

            B.    Whether the [c]ourt erred in allowing the
      Commonwealth to admit intercepted telephone calls between
      Appellant and Kwaku Sims[?]

            C.    Whether the [c]ourt erred in allowing the
      Commonwealth to admit statements of Appellant made during
      custodial interrogations on August 19, 2013 and December 18,
      2013[?]

             D.    Whether the [c]ourt erred by allowing the
      Commonwealth to introduce the testimony of Jaqueline Harrigan
      identifying herself as the “Hispanic” looking female that delivered
      a [shell] where said testimony was not provided to Appellant via
      discovery until after the commencement of trial[?]

(Appellant’s Brief, at 9).

      In his first issue, Appellant contends that the trial court erred in denying

his motion for a mistrial after the Commonwealth introduced prior bad act

testimony in violation of its previous grant of Appellant’s motion in limine

precluding evidence regarding Appellant’s prior conviction for burglary. (See

id. at 17-18). For the reason discussed below, we find that Appellant waived

this claim.

      The following standards govern our review of the denial of a motion for

mistrial:

           In criminal trials, declaration of a mistrial serves to eliminate
      the negative effect wrought upon a defendant when prejudicial
      elements are injected into the case or otherwise discovered at

                                      -6-
J-S56039-17


      trial. By nullifying the tainted process of the former trial and
      allowing a new trial to convene, declaration of a mistrial serves
      not only the defendant’s interest but, equally important, the
      public’s interest in fair trials designed to end in just judgments.
      Accordingly, the trial court is vested with discretion to grant a
      mistrial whenever the alleged prejudicial event may reasonably be
      said to deprive the defendant of a fair and impartial trial. In
      making its determination, the court must discern whether
      misconduct or prejudicial error actually occurred, and if so, . . .
      assess the degree of any resulting prejudice. Our review of the
      resulting order is constrained to determining whether the court
      abused its discretion.       Judicial discretion requires action in
      conformity with [the] law on facts and circumstances before the
      trial court after hearing and consideration. Consequently, the
      court abuses its discretion if, in resolving the issue for decision, it
      misapplies the law or exercises its discretion in a manner lacking
      reason.

Commonwealth v. Jaynes, 135 A.3d 606, 615 (Pa. Super. 2016), appeal

denied, 145 A.3d 724 (Pa. 2016) (citation omitted). “A mistrial is an extreme

remedy that is required only where the challenged event deprived the accused

of a fair and impartial trial.” Commonwealth v. Smith, 131 A.3d 467, 475

(Pa. 2015), cert. denied, 137 S.Ct. 46 (2016) (citation omitted). “The trial

court is in the best position to assess the effect of an allegedly prejudicial

statement on the jury, and as such, the grant or denial of a mistrial will not

be overturned absent an abuse of discretion.” Commonwealth v. Parker,

957 A.2d 311, 319 (Pa. Super. 2008), appeal denied, 966 A.2d 571 (Pa. 2009)

(citation omitted).

      In the instant matter, the objected to statement took place during the

playing of an audio version of Appellant’s August 7, 2013 interview with

PMRPD. (See N.T. Trial, 5/05/16, at 64-65). Thus, the objected to statement


                                       -7-
J-S56039-17


is not of record.4     (See id.).     Appellant did not immediately object to the

statement but, instead, waited until the jury had been excused for lunch and

then moved for a mistrial. (See id. at 70). Thus, this Court is only able to

determine the content of the statement from the precis provided by counsel

during argument on the issue.           (See id. at 70-71, 77-79).   In his brief,

Appellant does not provide the text of the objected-to statement.           (See

Appellant’s Brief, at 17-18). While the Commonwealth, in its brief, and the

trial court, in its opinion, are more specific, neither quotes to a transcript of

the actual interview but instead cite to the argument mentioned above. (See

Commonwealth’s Brief, at 4-7; Trial Ct. Op., 10/17/16, at 7-8).

       We have stated “[w]hen the appellant . . . fails to conform to the

requirements of [Pa.R.A.P.] 1911 [relating to transcript requests], any claims

that cannot be resolved in the absence of the necessary transcript or

transcripts must be deemed waived for the purpose of appellate review.”

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc),

appeal denied, 916 A.2d 632 (Pa. 2007) (citation omitted). Further, it is the

appellant’s responsibility to make certain that the certified record contains all

items necessary to ensure that this Court is able to review his claims. See




____________________________________________


4 This Court made an unsuccessful inquiry to the trial court in an attempt to
obtain the transcript of the August 7, 2013 interview. We have also examined
Appellant’s request for transcripts and he did not seek to have this interview
transcribed. (See Request for Transcripts, 8/16/16, at 1).

                                           -8-
J-S56039-17


Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa. Super. 2008) (en banc).

This Court has stated:

              It is black letter law in this jurisdiction that an appellate
        court cannot consider anything which is not part of the record in
        the case. It is also well-settled in this jurisdiction that it is
        Appellant’s responsibility to supply this Court with a complete
        record for purposes of review. A failure by appellant to insure that
        the original record certified for appeal contains sufficient
        information to conduct a proper review constitutes waiver of the
        issue sought to be examined.

Commonwealth v. Martz, 926 A.2d 514, 524-25 (Pa. Super. 2007), appeal

denied, 940 A.2d 363 (Pa. 2008) (citations and quotation marks omitted). In

Commonwealth v. O’Black, 897 A.2d 1234 (Pa. Super. 2006), we found

waiver after noting that the trial transcript was not in the reproduced or

certified record and that our attempt to find the transcript had been

unavailing. See O’Black, supra at 1238.

        An appellant’s failure to ensure that the original record as certified for

appeal contains sufficient documentation to enable the court to conduct a

proper review constitutes a waiver of the issues sought to be reviewed on

appeal.     See Growall v. Maietta, 931 A.2d 667, 676 (Pa. Super. 2007),

appeal denied, 951 A.2d 1164 (Pa. 2008); see also Smith v. Smith, 637

A.2d 622, 623-24 (Pa. Super. 1993), appeal denied, 652 A.2d 1325 (Pa.

1994). Accordingly, we find that Appellant’s failure to request transcription of

the August 7, 2013 interview, waived his first issue on appeal.

        Moreover, even if Appellant had provided the necessary transcript, we

would     still   find   this   issue   waived   because   Appellant’s   argument   is

                                           -9-
J-S56039-17


undeveloped. His argument on this issue consists of three brief paragraphs.

(See Appellant’s Brief, at 17-18).             The first paragraph is boilerplate law

concerning the admission of character evidence and the trial court’s standard

for granting a mistrial.        (See id. at 17).       The second paragraph is an

inadequate discussion of Appellant’s motion in limine and the trial court’s order

granting it.    (See id. at 17-18).       The third paragraph consists of a single

conclusory sentence that the Commonwealth played a portion of Appellant’s

interview with the police that outlined his prior criminal conduct. (See id. at

18). Appellant never attempts to apply the law to the facts of the case, never

discusses how the trial court’s ruling on his motion in limine covers the

statement in questions,5 or explains how a reference to his prior criminal

activity, made during the course of a two-hour interview played in a trial that

lasted nearly two weeks, so prejudiced him as to require the extreme remedy

of a grant of a mistrial.

       We have stated:


____________________________________________


5  We note that this Court has reviewed Appellant’s supplemental pretrial
motion, wherein he sought to exclude any reference to any “facts and
circumstances surrounding [Appellant’s] conviction for Burglary (F-1) [on
November 4, 2009].” (Appellant’s Supplemental Pretrial Motion, 4/05/16, at
3). We have also reviewed the transcript of oral argument on this issue, (see
N.T. Hearing, 4/06/16, at 2-28), as well as the argument made during
Appellant’s motion for a mistrial (see N.T. Trial, 5/05/16, at 70-79), to the
extent we can make a determination, it is not at all apparent that Appellant
moved to exclude the statements made during the August 7, 2013 interview
or that they were covered by the trial court’s ruling. (See Supplemental
Pretrial Motion at 3; N.T. Hearing, 4/06/16, at 2-28, N.T. Trial 5/05/16, at 70-
79).

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       In an appellate brief, parties must provide an argument as to each
       question, which should include a discussion and citation of
       pertinent authorities. Pa.R.A.P. 2119(a). . . . This Court is neither
       obliged, nor even particularly equipped, to develop an argument
       for a party. Commonwealth v. Williams, 566 Pa. 553, 577, 782
       A.2d 517, 532 (2001) (Castille, J., concurring). To do so places
       the Court in the conflicting roles of advocate and neutral arbiter.
       Id. When an appellant fails to develop his issue in an argument
       and fails to cite any legal authority, the issue is waived.
       Commonwealth v. Luktisch, 680 A.2d 877, 879 (Pa. Super.
       1996). . . .

B.D.G., supra at 371-72. Thus, failure to cite case law or other legal authority

in support of an argument              results in waiver      of the      claim.   See

Commonwealth v. Liston, 941 A.2d 1279, 1285 (Pa. Super. 2008) (en

banc), affirmed in part and vacated in part, 977 A.2d 1089 (Pa. 2009);

Pa.R.A.P. 2101.      Thus, even if Appellant had provided a transcript of the

August 7, 2013 interview, we would have found the claim waived based upon

his undeveloped argument. See B.D.G., supra at 371-72.

       In his second claim, Appellant argues that the trial court erred in denying

his motion to suppress consensual telephone intercepts between himself and

cooperating     witness    Kwaku     Sims      because   18   Pa.C.S.A.    §   5704,   is

unconstitutional.6 (See Appellant’s Brief, at 18-24). We disagree.

       Our standard of review is settled:

       [w]hen an appellant challenges the constitutionality of a statute,
       the appellant presents this Court with a question of law. Our
____________________________________________


6Although Appellant challenges the constitutionality of a statute, he need not
notify the Attorney General, as the Commonwealth is a party to this matter.
See 201 Pa. Code § 521.



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     consideration of questions of law is plenary. A statute is presumed
     to be constitutional and will not be declared unconstitutional
     unless it clearly, palpably, and plainly violates the constitution.
     Thus, the party challenging the constitutionality of a statute has a
     heavy burden of persuasion.

Commonwealth v. Beaman, 846 A.2d 764, 768 (Pa. Super. 2004), affirmed,

880 A.2d 578 (Pa. 2005) (citation omitted).

     18 Pa.C.S.A. § 5704 provides, in relevant part:

     It shall not be unlawful and no prior court approval shall be
     required under this chapter for:

                                     *       *       *

           (2) Any investigative or law enforcement officer or any
           person acting at the direction or request of an
           investigative or law enforcement officer to intercept a
           wire, electronic or oral communication involving
           suspected criminal activities, including, but not limited
           to, the crimes enumerated in section 5708 (relating to
           order authorizing interception of wire, electronic or
           oral communications), where:

                                 *       *       *

           (ii) one of the parties to the communication has given
           prior consent to such interception. However, no
           interception under this paragraph shall be made
           unless the Attorney General or a deputy attorney
           general designated in writing by the Attorney General,
           or the district attorney, or an assistant district
           attorney designated in writing by the district attorney,
           of the county wherein the interception is to be
           initiated, has reviewed the facts and is satisfied that
           the consent is voluntary and has given prior approval
           for the interception; however, such interception shall
           be subject to the recording and record keeping
           requirements of section 5714(a) (relating to recording
           of intercepted communications) and that the Attorney
           General, deputy attorney general, district attorney or
           assistant district attorney authorizing the interception

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            shall be the custodian of recorded evidence obtained
            therefrom[.]

18 Pa.C.S.A. § 5704(2)(ii).

      Here, Appellant does not dispute that the intercepts were made in

accordance with this statute, but rather alleges that the statute violates

Appellant’s “right to privacy under the Fourth Amendment of the United States

Constitution and Article I, § 8 of the Pennsylvania Constitution.” (Appellant’s

Brief, at 18). We disagree.

      In disposing of this issue, the trial court addressed, and properly

rejected, Appellant’s claim, stating:

            Article I, Section 8 of the Pennsylvania Constitution requires
      that searches and seizures by the Commonwealth be permitted
      only upon obtaining a warrant based upon probable cause issued
      by a neutral and detached magistrate. [See] Com. v. Labron,
      669 A.2d 917, 920 (Pa. 1995)[, reversed on other grounds by,
      Pennsylvania v. Labron, 518 U.S. 9328 (1996)]. Thus,
      generally, searches and seizures conducted without a prior
      determination of probable cause are unreasonable for
      constitutional purposes. [see i]d. However, the probable cause
      requirement only applies to situations in which the citizen
      possesses a reasonable expectation of privacy in the item
      searched or seized. [See] Com. v. DeJohn, [403 A.2d 1283,
      1289 (Pa. 1979), cert. denied, 444 U.S. 1032 (1980)]. Therefore,
      we must determine whether [Appellant] had a reasonable
      expectation of privacy.

            The Pennsylvania Supreme Court has stated that the
      concurring opinion of Justice Harlan in Katz v. United States,
      [389 U.S. 347 (1967)] “sets forth the foundation for both federal
      and Pennsylvania constitutional law analysis with respect to
      constitutionally-protected privacy expectations.”      Com. v.
      Rekasie, 778 A.2d 624, 628 ([Pa.] 2001). The test is: (1)
      whether [Appellant] exhibited an actual subjective expectation of
      privacy, and (2) whether that expectation is one that society is
      prepared to recognize as reasonable. [See I]d. [(]citing Katz,

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J-S56039-17


     supra at 361-62 (Harlan, J., concurring)[)]. Notably, the Court
     in Rekasie highlighted that information that is voluntarily
     disclosed does not track federal constitutional jurisprudence;
     insofar as it does not automatically render it unprotected. [See
     i]d. at 630 (“under Pennsylvania Constitutional jurisprudence, it
     is manifest that a citizen’s expectation of privacy can extend, in
     some circumstances, to information voluntarily disclosed to
     others.”).

           The Pennsylvania Supreme Court already addressed the
     constitutionality of not requiring a warrant for one party
     consensual interceptions in Rekasie.

                In this appeal, our court revisits the area of one
          party consensual wire interceptions. The sole issue
          before our court is whether Article I, Section 8 of the
          Pennsylvania       Constitution        requires      the
          Commonwealth to obtain a determination of probable
          cause by a neutral, judicial authority before an agent
          of the Commonwealth may initiate a telephone call to
          an individual in his home and record that
          conversation.

     Rekasie, [supra at] 625. They held an individual does not have
     a reasonable expectation of privacy that their telephone
     conversation would be free from monitoring and thus the
     Pennsylvania Constitution does not require a determination of
     probable cause for one party consensual wire interceptions. [See
     i]d. The facts of Rekasie are as follows:

            Pursuant to an ongoing drug investigation, agents of the
     Attorney General’s Office seized cocaine from Tubridy. Tubridy
     told the agents that Rekasie was a drug courier and agreed to
     participate in an investigation of Rekasie and consented to have
     his telephone conversations with Rekasie taped. In accordance
     with the Wiretapping and Electronics Surveillance Control Act (the
     “Act”), Tubridy voluntarily consented to the recording of his
     conversations with Rekasie. Tubridy twice called Rekasie at
     Rekasie’s home and based on those intercepts, a search warrant
     was issued which permitted the Attorney General’s office to seize
     and search Rekasie’s luggage while he was disembarking from an
     airplane flight from Fort Lauderdale, Florida to Pittsburgh,
     Pennsylvania. The search revealed just under a pound of cocaine.
     Rekasie was subsequently charged with possession with intent to

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J-S56039-17


     deliver a controlled substance, possession of a controlled
     substance and criminal conspiracy. Rekasie filed a motion to
     suppress on the ground that his constitutional rights had been
     violated by the interceptions. A suppression hearing was held in
     which the Commonwealth presented evidence that it had
     permission to record the conversations pursuant to section
     5704(2)(ii) of the Act.

            The trial court initially denied the motion to suppress. After
     reconsideration, however, the court granted the motion on the
     basis of Com. v. Brion, [652 A.2d 287 (Pa. 1994) (Pennsylvania
     Constitution requires determination of probable cause by neutral
     judicial authority before Commonwealth may conduct electronic
     interception of face-to-face conversation in one’s home by
     individual wearing body wire)]. The Superior Court reversed
     holding that Brion was limited to the use of a body wire by a
     confidential informant in the home of a defendant and did not
     apply to the interception of telephone conversations.

            The Supreme Court granted allocatur to determine whether
     our     Commonwealth’s     Constitution   requires   that   the
     Commonwealth obtain a probable cause determination from a
     neutral judicial authority before it may monitor a telephone
     conversation between a cooperative informant and another
     individual.

            The Supreme Court, applying the Katz privacy expectation
     test found that while Rekasie might have possessed an actual or
     subjective expectation of privacy, because of the nature of
     telephonic communication, it is not an expectation that society
     was willing to accept as objectively reasonable.

           []A telephone call received by or placed to another is
           readily subject to numerous means of intrusion at the
           other end of the call, all without the knowledge of the
           individual on the call. Extension telephones and
           speakerphones render it impossible for one to
           objectively and reasonably expect that he or she will
           be free from intrusion. The individual cannot take
           steps to ensure that others are excluded from the call.
           Based     upon     these     realities  of   telephonic
           communication, and the fact that Rekasie could not
           reasonably know whether Tubridy had consented to
           police seizure of the contents of the conversation, we

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J-S56039-17


           hold that Rekasie did not harbor an expectation of
           privacy in his telephone conversation with Tubridy
           that society is willing to recognize as reasonable.[]

     Rekasie, [supra at] 631. Thus, the Commonwealth was not
     required to obtain a determination of probable cause by a neutral
     judicial authority prior to monitoring the telephone conversation
     between Rekasie and the confidential informant Tubridy.

            In [Brion, supra], the Supreme Court held that the
     Pennsylvania Constitution requires a warrant before police may
     send a confidential informant into one’s home with a body wire to
     record a conversation with the defendant. [Brion, supra at 287].
     They determined that interceptions of oral conversation within
     one’s home could only pass constitutional muster if a neutral
     judicial authority makes a prior determination of probable cause.
     Brion is distinguished form Rekasi and the case currently before
     us because a face-to-face interchange occurring solely within the
     home is substantially different than a conversation, on a telephone
     call; where an individual has no ability to create an environment
     in which they can reasonably be assured that the conversation is
     not being recorded by another party. On the telephone, one can
     never be sure who is actually listening on the other end.

           []Thus, while society may certainly recognize as
           reasonable a privacy expectation in a conversation
           carried on face-to-face within one’s home, we are
           convinced society would find that an expectation of
           privacy in a telephone conversation with another, in
           which an individual has no reason to assume the
           conversation is not being simultaneously listened to
           by a third party, is not objectively reasonable[].

     Rekasie, [supra at] 632.

           As the Pennsylvania Supreme Court has already decided the
     constitutionality of not requiring a warrant for one party
     consensual interceptions under the Katz test, we find no
     compelling reason to reach a contrary resolution of this issue. A
     defendant’s expectation of privacy in a telephone conversation
     with another is not one that society is prepared to recognize as
     objectively reasonable, therefore [Appellant’s] motion to suppress
     is denied.


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J-S56039-17


(Trial Ct. Op., 1/20/15, at 5-9) (footnotes omitted some citation formatting

provided).

      Moreover, we are unpersuaded by Appellant’s contention that the United

States Supreme Court’s decision in Riley v. California, 134 S.Ct. 2473

(2014), necessitates a revisiting of this settled law. (See Appellant’s Brief, at

22-24). In Riley, the United States Supreme Court held that when a cell

phone is recovered during a search incident to arrest, police must obtain a

warrant before searching the contents of the cell phone. See Riley, supra at

2485. We see nothing in Riley, which persuades us that the Supreme Court

intended to apply its holding outside of the context of searches incident to

arrest or that it in any way implies that the decision had any impact

whatsoever with respect to a consensual wiretap.

      Moreover, in a recent case, Commonwealth v. Diego, 119 A.3d 370

(Pa. Super. 2015) (en banc), appeal denied, 129 A.3d 1240 (Pa. 2015), this

Court specifically refused to extend Riley outside of that context. In Diego,

a cooperating witness set up a drug deal with the defendant by using the text

messaging service on his iPad, while police officers watched him and read the

messages. See id. 372-73. After a hearing, the trial court suppressed the

evidence. See id. at 373. The Commonwealth appealed. See id. On appeal,

a panel of this Court reversed, specifically rejecting the appellee’s argument

that “he possessed a heightened expectation of privacy” pursuant to Riley.

Id. at 377; see id. at 377-78. We stated:


                                     - 17 -
J-S56039-17


           Here, Appellant’s reliance on Riley is simply misplaced. The
     police did not obtain the contents of Appellant’s text message
     conversation with [the cooperating witness] by searching
     Appellant’s phone incident to his arrest. . . . Thus, the heightened
     expectation of privacy recognized in Riley, is not applicable to this
     case.

Id. at 378. Thus, we find that the trial court did not commit an error of law

in declining to find that 18 Pa.C.S.A. § 5704 is unconstitutional. Appellant’s

second issue lacks merit.

     In his third issue, Appellant contends the trial court erred in denying his

motion to suppress statements made to the police during his August 19, 2013

and December 18, 2013 interviews. (See Appellant’s Brief, at 24-28). In a

case involving an appeal from the denial of a motion to suppress:

     [our] standard of review . . . 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, [the appellate court is] bound by [those]
     findings and may reverse only if the court’s legal conclusions are
     erroneous. Where . . . 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 [ ] plenary review.

Commonwealth v. Randolph, 151 A.3d 170, 175 (Pa. Super. 2016), appeal

denied, 2017 WL 1734370 (Pa. filed May 2, 2017) (citation omitted).

However, we are constrained to find the issue waived.


                                    - 18 -
J-S56039-17


       In the instant matter, like the August 7, 2013 interview, the August 19,

and December 18, 2013 interviews with PMRPD are not transcribed and

Appellant did not request that they be transcribed. (See N.T. Suppression

Hearing, 8/25/14, at 4-48; Request for Transcripts, 8/16/16, at 1). Again,

this Court sought to obtain transcriptions from the trial court but was

unsuccessful. It appears from our review of the trial court opinion and both

parties’ briefs, that the tapes contain pertinent discussion surrounding

Appellant’s ultimate decision to waive his Miranda rights.7 (See Appellant’s

Brief, at 24-28; Commonwealth’s Brief, at 16-25; Trial Ct. Op., 1/20/15, at 3-

4, 9-16).

       In its ruling, while the trial court does quote from the relevant portion

of the August 19, 2013 interview, it admits that its description of the

conversation is based upon a poor quality audio recording and it constitutes

“[the trial court’s] best interpretation of the tape[;]” while it references the

December 18, 2013 interview, it does not directly quote from it. (Trial Ct.

Op., 1/20/15, at 3 n.11; see also id. at 9-16). In his statement of the case,

Appellant occasionally quotes from DVDs of the August 19, 2013 and

December 18, 2013 interview. (See Appellant’s Brief, at 13-14). There is no

DVD contained in the certified record and it is not clear if this DVD is identical



____________________________________________


7 After making inquiry of the trial court, this Court was able to obtain copies
of Appellant’s written waiver of his Miranda rights. (See N.T. Suppression
Hearing, 8/25/14, at Commonwealth’s Exhibits seven and eight).

                                          - 19 -
J-S56039-17


to the audio recording listened to by the trial court. The Commonwealth also

quotes from a portion of the August 19, 2013 interview, but its citation is to

the trial court’s January 20, 2015 opinion, which as noted above is the trial

court’s best guess of what was said during that interview.                 Absent

transcription, this Court has no means to assess the accuracy of Appellant’s

quotations from the interviews or the trial court’s interpretation of what was

said during the August 19, 2013 interview.

        As discussed above, it is Appellant’s responsibility to ensure that the

certified record is complete. See B.D.G., supra at 372. Again we note, that

“[i]n the absence of an adequate certified record, there is no support for an

appellant’s arguments and, thus, there is no basis on which relief could be

granted.” Preston, supra at 7. Accordingly, we are compelled to find that

Appellant waived his third issue.

        In his final claim, Appellant avers that the trial court erred in admitting

witness Jacqueline Harrigan’s testimony that she was the previously

unidentified woman who gave a shell to witness Enrique Perez at Appellant’s

request.     (See Appellant’s Brief, at 28-32).       Appellant claims that the

Commonwealth failed to disclose this evidence in violation of the United States

Supreme Court’s decision in Brady v. Maryland, 373 U.S. 83 (1963), and

Pennsylvania Rule of Criminal Procedure 573(D).8 We disagree.

____________________________________________


8   Pennsylvania Rule of Criminal Procedure 573 provides in pertinent part:



                                          - 20 -
J-S56039-17


       Initially we note our standard of review. This Court has held that:

              With regard to evidentiary challenges, it is well established
       that [t]he admissibility of evidence is at the discretion of the trial
       court and only a showing of an abuse of that discretion, and
       resulting prejudice, constitutes reversible error. An abuse of
       discretion is not merely an error of judgment, but is rather the
       overriding or misapplication of the law, or the exercise of
       judgment that is manifestly unreasonable, or the result of bias,
       prejudice, ill-will or partiality, as shown by the evidence of record.
       Furthermore, if in reaching a conclusion the trial court overrides
       or misapplies the law, discretion is then abused and it is the duty
       of the appellate court to correct the error.

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation

and quotation marks omitted).

       The law governing alleged Brady violations is settled.

              Under Brady and subsequent decisional law, a prosecutor
       has an obligation to disclose all exculpatory information
       material to the guilt or punishment of an accused, including
       evidence of an impeachment nature. To establish a Brady
       violation, an appellant must prove three elements: (1) the
       evidence at issue was favorable to the accused, either because it
       is exculpatory or because it impeaches; (2) the evidence was
       suppressed by the prosecution, either willfully or inadvertently;
       and (3) prejudice ensued. The burden rests with the appellant to
       prove, by reference to the record, that evidence was withheld or
       suppressed by the prosecution. The evidence at issue must have
____________________________________________




       (D) Continuing Duty to Disclose. If, prior to or during trial,
       either party discovers additional evidence or material previously
       requested or ordered to be disclosed by it, which is subject to
       discovery or inspection under this rule, or the identity of an
       additional witness or witnesses, such party shall promptly notify
       the opposing party or the court of the additional evidence,
       material, or witness.

Pa.R.Crim.P. 573(D).


                                          - 21 -
J-S56039-17


     been material evidence that deprived the defendant of a fair trial.
     Favorable evidence is material, and constitutional error results
     from its suppression by the government, if there is a reasonable
     probability that, had the evidence been disclosed to the defense,
     the result of the proceeding would have been different. A
     reasonable probability is a probability sufficient to undermine
     confidence in the outcome.

Commonwealth v. Ovalles, 144 A.3d 957, 965 (Pa. Super. 2016) (citations

and quotation marks omitted) (emphasis added).       Here, the testimony in

question by Jacqueline Harrigan was inculpatory, and, therefore, not governed

by Brady.     See Commonwealth v. Maldonodo, -- A.3d --, 2017 WL

4001659, at *3 (Pa. Super. Sept. 12, 2017) (en banc) (holding that Brady

requires that evidence in question be favorable to accused); Commonwealth

v. Counterman, 719 A.2d 284, 297 (Pa. 1998), cert. denied, 528 U.S. 836

(1999).   Thus, Appellant’s claim that the Commonwealth did not fulfill its

obligations under Brady lacks merit.

     In addition, the trial court correctly analyzed Appellant’s claim that it

should have disallowed the evidence because of the Commonwealth’s violation

of Pa.R.Crim.P. 573 as follows:

             In [Counterman, supra], the Pennsylvania Supreme Court
     held that the Commonwealth had violated its disclosure duties
     under the Rules of Criminal Procedure[a] in a homicide trial where
     it failed to disclose inculpatory statements from the defendant’s
     wife until after the commencement of trial. [See] Counterman,
     [supra at] 298. However, the Court also held that, despite the
     Commonwealth’s failure to properly disclose this evidence, there
     was no trial court error in admitting same because the defendant
     did not demonstrate prejudice. Id. In coming to this conclusion,
     the Supreme Court discussed the trial court’s “broad discretion in
     deciding the appropriate remedy for a discovery violation” and


                                   - 22 -
J-S56039-17


     that “a defendant seeking relief from a discovery violation must
     demonstrate prejudice.” Id.

             The Supreme Court in Counterman cites to Rule
           [a]

           305(B) which is substantially the same as the present
           Rule 573(B). Compare Counterman, [supra at]
           298 (citing Rule 305(B)) and Rule 573(B).

            Like the defendant in Counterman, Appellant has failed to
     demonstrate how Ms. Harrigan’s testimony worked to his
     prejudice. Independent of Ms. Harrigan’s testimony, there was
     sufficient testimony, all of which had been provided to the
     Appellant in discovery, that Appellant sent a woman to deliver the
     shell casing in question to Enrique Perez. Mr. Perez testified that
     a Hispanic-looking female had approached his residence and
     delivered to him a shell casing wrapped in toilet paper with the
     message “[c]ompliments of Will.” N.T., Trial, 5/11/16, pp. 33, 37-
     39. Mr. Perez additionally testified that the only “Will” he had
     problems with was Appellant. See N.T., Trial, 5/11/16, p. 33.
     Officer Papi further corroborated these statements when he
     testified that the description of the “Will” Mr. Perez had problems
     with and the description of where that individual lived both
     matched Appellant. N.T., Trial, 5/11/16, p. 44.

            In light of this independent testimony, which had been
     included in pretrial discovery, Ms. Harrigan’s statements were
     cumulative at best. The identity of the woman who delivered the
     shell casing to Mr. Perez is of no consequence-whomever she was,
     Ms. Harrigan or otherwise, she stated the shell casing was
     “Compliments of Will.” Furthermore, Appellant was the only “Will”
     Mr. Perez had a problem with and that same shell casing was tied
     to the rifle used to kill Mr. Fraser. Appellant cannot show prejudice
     and this allegation of error is, therefore, without merit.[b]

           [b][The trial court] also note[s] that even if [it] erred
           in admitting Ms. Harrigan’s testimony, the Superior
           Court will consider any such error harmless where
           “erroneously     admitted    evidence    was      merely
           cumulative of other, untainted evidence which was
           substantially similar to the erroneously admitted
           evidence.” Commonwealth v. Miles, 846 A.2d 132,
           137-38 (Pa. Super. 2004) (en banc)[, appeal
           dismissed, 871 A.2d 1248 (Pa. 2005)] (citation
           omitted).

                                    - 23 -
J-S56039-17



(Trial Ct. Op., 10/17/16, at 13-15) (some citation formatting provided).

      We have thoroughly reviewed the parties’ arguments and the testimony

in question and agree that the trial court acted within its discretion to admit

Ms. Harrigan’s testimony.    See Maldonodo, supra at *3, Counterman,

supra at 298. As the trial court correctly notes, Ms. Harrigan’s testimony was

cumulative of that of Mr. Perez and Officer Papi. (See N.T. Trial, 5/11/16, at

30-46; N.T. Trial, 5/12/16, at 16-18). Appellant has failed to show how he

was prejudiced by this testimony, particularly in light of defense counsel’s

withering cross-examination about Ms. Harrigan’s habit of dribbling out

information to the Commonwealth in exchange for favorable treatment. (See

N.T. Trial, 5/12/16, at 83-93). Appellant’s final claim lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/6/2017




                                    - 24 -
