J-S61023-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA


                        v.

    MATTHEW CRAIG

                             Appellant               No. 3663 EDA 2016


            Appeal from the Judgment of Sentence August 22, 2016
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0007335-2014


BEFORE: LAZARUS, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY RANSOM, J.:                       FILED NOVEMBER 16, 2017

        Appellant, Matthew Craig, appeals from the judgment of sentence of ten

to twenty years of incarceration, imposed August 22, 2016, following a jury

trial resulting in his conviction for robbery, theft by unlawful taking, and two

counts of criminal conspiracy.1 We affirm.

        On June 12, 2014, Glenn Collins was working at RadioShack, located at

9 East Lancaster Avenue in Ardmore, Montgomery County, Pennsylvania. See

Notes of Testimony (N.T.), 5/2/16, at 67-68.       Around 9:00 p.m., shortly

before closing, Appellant and Latif Byard entered the store.        Id. at 69.

Appellant asked Mr. Collins whether the store sold Beats headphones and


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.

1
    See 18 Pa.C.S. §§ 3701(1)(ii), 3921, 903, respectively.
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whether a particular model was in stock. Id. at 69. While he looked, Mr.

Byard locked the front door, and Appellant approached Mr. Collins with a gun.

Id. at 69-70. Appellant ordered Mr. Collins into the basement and threatened

to shoot him. Id. at 69-70, 74.

      In the basement, Appellant and Mr. Byard forced Mr. Collins to lie face

down on the floor while they searched his pants and took his keys, cell phone,

and cash. Id. at 74-75. They obtained the lockbox key from Mr. Collins and

filled their bags with cellular phones, Beats headphones, and video game

systems.   Id. at 75, 77.   Appellant and Mr. Byard left Mr. Collins in the

basement and fled the scene. Id. at 76. Mr. Collins called 911. Id. at 77.

The value of the stolen merchandise totaled $20,635.52. Id. at 77.

      Police officers responded to the scene and began their investigation.

See N.T., 5/3/16, at 142-45.      Mr. Collins was unable to make a positive

identification of Appellant after viewing a photo array, although he later

identified Appellant at the preliminary hearing and at trial. See N.T., 5/2/16,

at 71-73. The store did not have security cameras. See N.T., 5/2/16, at 68.

Despite these setbacks, Mr. Byard was arrested on June 14, 2014, and his cell

phone was seized by police. See N.T., 5/3/16, at 167. He had exchanged

phone calls and Facebook messages with Appellant prior to the robbery. See

N.T., 5/3/16, at 177-85.

      Appellant was arrested at 6135 Marston Street on June 19, 2014, and

his cell phone seized and examined by police. See N.T., 5/3/16, at 151. This

examination revealed that on May 21, 2014, Appellant had received a text

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message from a contact named “Karl” that read, “I sold more phones.” Id.

at 185-86. Appellant also called “Karl” before and after the instant robbery.

See N.T., 5/3/16, at 177-85. See N.T., 5/3/16, at 142-45. Based upon a

generated cell phone site map of Appellant’s number, police were able to

determine that on the night of the robbery, he had initially made connections

to cell phone towers near his house. Id. at 231-274. Appellant then began

making different site connections en route to the scene of the robbery. Id.

Triangulation of Appellant’s cell phone showed that he was within close vicinity

of the RadioShack because his phone made eight site connections between

8:48 p.m. and 9:10 p.m. Id. at 231-41. The phone did not connect again

until 9:29 p.m. Id. at 241. At that time, it “pinged” in the vicinity of 6135

Marston Street in Philadelphia, Pennsylvania, the location at which Appellant

was later arrested. Id.

      On May 27, 2015, Mr. Byard entered a negotiated guilty plea to

conspiracy to commit robbery. See N.T., 5/27/15, at 1-12. Mr. Byard testified

that on June 12, 2014, he and Appellant committed the robbery for which they

were charged.    Id. at 6.   Following the entry of his plea, Mr. Byard was

sentenced to time served to twenty-three months of incarceration and five

years of consecutive probation. Id. at 12.

      Prior to trial, the Commonwealth filed a motion in limine to introduce a

text message Appellant had sent to “Karl” on May 21, 2014, three weeks prior

to the robbery, reading “I sold more phones.” See N.T., 5/3/16, at 136-37.

Appellant was also accused of committing robberies of two Philadelphia

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RadioShacks on May 19, 2014, and May 31, 2014, respectively. See Trial

Court Opinion (TCO), 5/22/17, at 19; see also Commonwealth’s Mot. in Lim.,

4/27/16, at 1. Ultimately, the text message was admitted, but evidence of

the Philadelphia robberies was excluded by the trial court. See TCO at 19.

Although Appellant originally objected to the admission of the text messages

as evidence of prior bad acts, at trial, he requested that the court not read a

curative instruction. See N.T., 5/3/16, at 137, 206.

      In May 2016, Appellant’s case proceeded to trial by jury. At trial, Mr.

Byard admitted to committing the Ardmore robbery but denied Appellant’s

involvement. See N.T., 5/2/16, at 110-121. The Commonwealth impeached

Mr. Byard with his prior testimony. Id. at 117-121. Both Appellant and the

Commonwealth stipulated that phones recovered from Appellant and his co-

defendant at the time of their arrests had particular international mobile

equipment identifier (“IMEI”) numbers which belonged to Appellant and Mr.

Byard. See TCO at 16.

      The jury convicted Appellant of the above charges and acquitted him of

an additional count of robbery. The Commonwealth filed a notice of intent to

seek a ten-year mandatory sentence due to Appellant’s conviction for a second

and subsequent violent offense.     On June 9, 2016, the court sentenced

Appellant to two concurrent terms of ten to twenty years of incarceration.

Appellant filed post sentence motions, which were denied.




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

statement of errors complained of on appeal.2 The court issued a responsive

opinion.

       On appeal, Appellant raises the following issues for our review, which

we have reordered for ease of analysis:

       1. The trial court erred in admitting into evidence a text message
       stating “I sold more phones[,”] which was sent by the appellant
       three weeks prior to the incident.”

       2. The verdict was against the weight of the evidence.

Appellant’s Brief at 7.

       First, Appellant claims that the court erred in admitting into evidence a

text message sent to “Karl” from Appellant which read, “I sold more phones.”

See Appellant’s Brief at 36. Appellant argues that because the message was

sent three weeks prior to the robbery, the text message had nothing to do

with the facts and circumstances surrounding the case. Id. Thus, Appellant

concludes that the message constitutes inappropriate evidence of prior bad

acts. Id.

       We examine a trial court’s decision concerning the admissibility of

evidence for an abuse of discretion. Commonwealth v. Dengler, 890 A.2d

372, 379 (Pa. 2005). Regarding the admissibility of prior bad acts,

       [g]enerally, evidence of prior bad acts or unrelated criminal
       activity is inadmissible to show that a defendant acted in
____________________________________________


2
  Appellant failed to timely appeal; however, following correspondence by
counsel, the court reinstated his appellate rights nunc pro tunc on November
10, 2016.

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      conformity with those past acts or to show criminal propensity.
      Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be
      admissible when offered to prove some other relevant fact, such
      as motive, opportunity, intent, preparation, plan, knowledge,
      identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).
      In determining whether evidence of other prior bad acts is
      admissible, the trial court is obliged to balance the probative value
      of such evidence against its prejudicial impact.

Commonwealth v. Sitler, 144 A.3d 156, 163 (Pa. Super. 2016) (en banc)

(quoting Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009)).

      At argument, the Commonwealth averred that Appellant was in contact

with “Karl” at the time of the Philadelphia robberies. See TCO at 20-21. The

Commonwealth also noted that Appellant had called “Karl” before and after

the instant robbery. In this context, the Commonwealth suggested that the

text messages demonstrated motive and intent, as it was likely the phones

were procured for profit. Id. The court admitted this evidence for the limited

purpose of showing motive and intent, without mention of any prior robberies,

and offered Appellant a curative instruction, which he first accepted, but later

declined. Id. at 22.

      Such evidence is proper and relevant in a criminal case.        See, e.g.,

Commonwealth v. Tedford, 960 A.2d 1, 42 (Pa. 2008) (noting that evidence

to prove motive, intent, plan, design, ill will, or malice is always relevant in

criminal cases). Appellant admitted the phone belonged to him. He sent the

message in the midst of a string of similar robberies during which cell phones

were stolen.   The court admitted the evidence for a limited purpose and

without reference to the Philadelphia robberies. Thus, we cannot conclude



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that the court abused its discretion in admitting this text message.         See

Sitler, 144 A.3d at 163.

     Next, Appellant claims the verdict was against the weight of the

evidence. See Appellant’s Brief at 18. Essentially, Appellant suggests that

the verdict was “unfairly caused” by the court’s allowance of Pa.R.E. 404(b)

evidence, namely, that Appellant had sent a text message saying, “I sold more

phones.” Id. at 26. Appellant avers that this testimony caused the jury to

overlook “weak” testimony such as the complainant’s failure to identify

Appellant, Mr. Byard’s recantation of his guilty plea testimony, and a police

officer’s testimony regarding cell phone tower “pings.” Id. at 18.

      The law regarding weight of the evidence claims is well-settled.

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

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

and internal quotation marks omitted); see also Commonwealth v.

Hankerson, 118 A.3d 415, 420 (Pa. Super. 2015) (noting that this Court may

not re-assess the credibility of a witness’ testimony when ruling on a weight



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of the evidence claim). Here, the verdict was not against the weight of the

evidence.    We have previously determined that the text message was not

admitted in error.     Thus, we will examine Appellant’s claims that the jury

placed improper weight on other facts.

        First, Appellant argues that the verdict was against the weight of the

evidence due to the complainant’s failure to identify Appellant from a photo

array. See Appellant’s Brief at 18. Mr. Collins consistently and in great detail

testified to the events of the robbery, and he made identifications of Appellant

at the preliminary hearing and at trial. Although Appellant argues that this

testimony should not have been credited, he does not challenge the court’s

cautionary instruction to the jury and did not challenge the instruction given

to the jury at trial. See TCO, at 12-13. At trial, the court instructed the jury

that:

        There is a question of whether this identification is accurate. A
        victim or other witness can sometimes make a mistake when
        trying to identify the criminal. If certain factors are present, the
        accuracy of identification testimony is so doubtful that a jury must
        receive it with caution. Identification testimony must be received
        with caution if the witness, because of a bad position or lighting
        or other reasons, did not have a good opportunity to observe the
        criminal or if he did not identify the [Appellant] when shown
        photographs by the Lower Merion Detective Division before trial.

        If you believe that one or more of these factors are present, then
        you must consider with caution [Victim’s] testimony identifying
        the [Appellant] as the person who committed the crime. If,
        however, you do not believe that at least one of these factors is
        present, then you need not receive the testimony with caution and
        you may treat it like any other testimony.




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      You should consider all evidence relevant to the question of who
      committed the crime, including the testimony of [Victim], as well
      as any facts and circumstances from which identity or nonidentity
      of the criminal may be inferred. You cannot find the [Appellant]
      guilty unless you are satisfied beyond a reasonable doubt by all of
      the evidence, direct and circumstantial, not only that the crime
      was committed, but that it was the [Appellant] who committed it.

See TCO at 12-13.

      “The jury is presumed to have followed the court’s instructions.” See

Commonwealth v. Chmiel, 30 A.3d 1111, 1147 (Pa. 2011). Accordingly, it

is the jury, as fact-finder and with a proper cautionary instruction, which could

make a credibility determination regarding the identification testimony of Mr.

Collins, and we decline to re-assess the jury’s credibility determination. See

Hankerson, 118 A.3d at 420.

      Next, Appellant claims the verdict was against the weight of the

evidence due to Mr. Byard’s recantation of his earlier testimony. Mr. Byard

testified at his guilty plea hearing that he committed the robbery with

Appellant. See N.T., 5/2/16, at 115-120. Despite Mr. Byard’s recantation at

trial, he was impeached with his prior testimony. It was the jury’s role to

evaluate this conflicting testimony and give it such weight as they saw fit, and

we decline to reassess that credibility determination on appeal.            See

Hankerson, 118 A.3d at 420.

      Finally, Appellant argues the jury put improper weight on Detective Jean

Morrison’s testimony regarding a “cell site map” she had generated for

Appellant’s phone for the night of the robbery. See N.T., 5/3/16, at 227-254.

Detective Morrison was admitted as an expert, and Appellant did not object to


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her admission as an expert: accordingly, he has waived his challenge to her

expert opinion. See N.T., 5/3/16, at 220-21; see Pa.R.A.P. 302 (objections

not raised before the trial court are waived for purposes of appeal). Appellant

now characterizes this testimony as “junk science.” See Appellant’s Brief at

30. Appellant attempts to equate the alleged unreliability of other commonly

admitted forensic evidence, such as DNA and bite mark evidence, to the cell

phone tower analysis at issue in this case. Id. at 30-34. However, Appellant

does not indicate why the proffered evidence in the instant case was inherently

unreliable or incorrect. Id. Moreover, Appellant vigorously challenged the

testimony of Detective Morrison during cross-examination, covering many of

the issues he now raises on appeal.       Thus, the jury heard the evidence,

evaluated it, and found Detective Morrison’s testimony credible, and we

decline to re-assess the jury’s credibility determination. See Hankerson, 118

A.3d at 420.

        We cannot agree with Appellant that the jury’s verdict was so contrary

to the evidence as to shock one’s sense of justice. See Houser, 18 A.3d at

1136.     The jury, in their role as fact-finder, has heard, considered, and

subsequently rejected Appellant’s arguments. Thus, we discern no abuse of

the trial court’s discretion in rejecting Appellant’s weight claim. See Houser,

18 A.3d at 1136.

        Judgment of sentence affirmed. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/16/2017




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