citations and footnotes omitted, emphases in original, and formatting altered
How later courts described this case
- citations and footnotes omitted, emphases in original, and formatting altered
Written by the judges who cited it.
The opinion
J-S27029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAKIR MOSI SMITH :
:
Appellant : No. 312 WDA 2021
Appeal from the Judgment of Sentence Entered October 22, 2020
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0001248-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAKIR MOSI SMITH :
:
Appellant : No. 313 WDA 2021
Appeal from the Judgment of Sentence Entered October 22, 2020
In the Court of Common Pleas of Cambria County Criminal Division at
No(s): CP-11-CR-0000562-2020
BEFORE: OLSON, J., NICHOLS, J., and COLINS, J.*
MEMORANDUM BY NICHOLS, J.: FILED: NOVEMBER 2, 2021
Appellant Shakir Mosi Smith appeals from the judgment of sentence
following a jury trial and convictions for solicitation to commit murder and
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S27029-21
murder of the first degree as an accomplice.1 Appellant contends the trial
court erred by denying his pretrial motions (1) for a bill of particulars, (2) to
preclude prior bad acts, (3) and to suppress evidence, and he also challenges
the sufficiency and weight of the evidence. We affirm.
Because the parties are familiar with the history of this matter, we limit
our discussion to the facts necessary to resolve Appellant’s claims. By way of
brief background, Appellant, while he was in prison, ordered Carol Ashcom’s
death. See generally Trial Ct. Op., 2/24/21, at 4-13 (summarizing the
extensive trial testimony); Trial Ct. Op., 6/9/20, at 2-13. Ashcom was a
confidential informant who purchased drugs from Appellant several times in
April 2014. N.T. Trial, 9/28/20, at 49. As a result, the police arrested
Appellant, who was imprisoned in Cambria County Prison in June 2014.2 Id.
While incarcerated, Appellant learned Ashcom’s identity and ordered her
death, and discussed ordering the deaths of others. See, e.g., id. at 59, 61-
63, 136. Ashcom was killed on or before March 11, 2015. Id. at 37.
As a result of their investigation into Ashcom’s death and Appellant’s
drug organization, the police applied for a wiretap of Appellant’s prison visits,
____________________________________________
118 Pa.C.S. §§ 902(a), 2502(a). Specifically, the Commonwealth charged
Appellant with solicitation at docket no. 1248-2019, and with first-degree
murder at docket no. 562-2020. The trial court subsequently consolidated
both cases on July 8, 2020. Order, 7/8/20.
2 Appellant pled guilty to the drug offenses in March 2016. N.T. Trial, 9/28/20,
at 49.
-2-
J-S27029-21
which this Court granted. Id. at 65. The police also reviewed letters that
Appellant sent to India Snyder from prison, which ordered Ashcom’s death
and included threats to kill Snyder. Id. at 155, 161, 172. Eventually, the
Commonwealth filed informations charging Appellant with the above offenses.
On February 10, 2020, Appellant filed a motion in limine to preclude,
under Pa.R.E. 404(b), six prior bad acts, which the trial court denied on June
9, 2020. Trial Ct. Op., 6/9/20. Meanwhile, on February 17, 2020, Appellant
filed another motion to suppress evidence from the above wiretap and
Appellant’s prison letters to Snyder, among other items. See generally
Appellant’s Mot. to Suppress, 2/17/20. The trial court denied this motion on
May 21, 2020. Trial Ct. Op., 5/21/20. On May 4 and August 3, 2020,
Appellant filed two motions for bill of particulars, which the court denied on
September 18, 2020. See Trial Ct. Op., 9/18/20.
A jury trial began on September 28, 2020. In relevant part, Snyder
testified that Appellant ordered Ashcom’s death. See, e.g., N.T. Trial,
9/28/20, at 124-25, 200-01. Four of Appellant’s cellmates also testified that
Appellant stated he ordered Ashcom’s death. See, e.g., N.T. Trial, 9/29/20,
at 83, 94, 110; N.T. Trial, 9/30/20, at 9. Appellant took the stand and denied
ordering Ashcom’s death. See, e.g., N.T. Trial, 9/30/20, at 110.
When the trial court charged the jury, it gave a cautionary instruction
regarding the prior bad acts at issue in this appeal. Id. at 166-67.
Specifically, the trial court charged the jury that the prior bad acts can only
-3-
J-S27029-21
be used for the limited purposes of “[p]roving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake or lack of
accident.” Id. at 167. The trial court instructed the jury to not use the prior
bad acts as “showing that a defendant is a person of bad character or criminal
tendencies from which you might be incline[d] to infer guilt.” Id. On
September 30, 2020, the jury found Appellant guilty of the aforementioned
offenses.
The trial court ordered a presentence investigation report, and on
October 22, 2020, it sentenced Appellant to life imprisonment without
possibility of parole for first-degree murder as an accomplice and a concurrent
sentence of twenty to forty years’ imprisonment for criminal solicitation of
murder. On October 28, 2020, Appellant timely filed a post-sentence motion
that preserved his appellate issues, including a challenge to the weight of the
evidence. On February 24, 2021, the trial court denied Appellant’s post-
sentence motion.
Appellant timely appealed on March 1, 2021, and voluntarily filed a
Pa.R.A.P. 1925(b) statement that same day although the trial court did not
order him to comply.3 The trial court filed a Rule 1925(a) opinion that relied
____________________________________________
3 Appellant filed a separate notice of appeal and Rule 1925(b) statement for
each of the above-captioned docket numbers. Because Appellant complied
with Commonwealth v. Walker, 185 A.3d 969, 971 (Pa. 2018), we sua
sponte consolidated Appellant’s appeals. Order, 3/29/21.
-4-
J-S27029-21
on its decision denying Appellant’s post-sentence motion. Trial Ct. Op.,
2/24/21.
Appellant raises the following issues on appeal, which we reordered as
follows:
1. The Appellant respectfully submits that the trial [court] erred
in denying the Appellant’s pre-trial motion for bill of particulars.
2. The Appellant respectfully submits that the trial court erred in
denying his pre-trial motion in limine in regard[] to
Commonwealth’s introduction of prior bad acts.
3. The Appellant respectfully submits that the trial court erred in
denying his pre-trial motion to suppress in regards to the
wiretap that recorded the Appellant’s in-person visits at the
prison.
4. The Appellant submits that his conviction for the following
counts: solicitation to commit murder, and murder in the first
degree as an accomplice, was against the weight and
sufficiency of the evidence as presented by the Commonwealth
at trial.
Appellant’s Brief at 6.
Bill of Particulars
In support of Appellant’s first issue, Appellant contends the court erred
by denying his motions for bills of particulars. Id. at 42. By way of
background, the Commonwealth’s information for solicitation states:
That [Appellant] did solicit the crime of murder; that is, on or
between June 2014 and March 11, 2015, [Appellant] did, with the
intent of promoting or facilitating the commission of a crime,
commanded, encouraged or requested another person to engage
in specific conduct which would constitute the murder of Carol
Ashcom, or an attempt to commit the murder, or which would
establish his complicity in its commission or attempted
commission of the murder, while incarcerated in the Cambria
-5-
J-S27029-21
County Prison; in violation of Title 18 Pa.C.S.A. § 902(a) for the
crime of Title 18 Pa.C.S.A. § 2502(a).
Information, 1248-2019, 10/18/19. The Commonwealth’s information for
murder states:
That [Appellant] did commit murder as an accomplice as defined
by 18 Pa.C.S.A. § 306(c) by intentionally causing the death of
another human being, namely Carol Ashcom, at 640 Virginia
Avenue, Lower Yoder Township, Johnstown, Cambria County; in
violation of Title 18 Pa.C.S.A. § 2502(a).
Information, 562-2020, 6/17/20.
On appeal, Appellant argues that he was entitled to the dates, times,
and locations of the charged offenses so he could prepare a proper defense.
Appellant’s Brief at 43. Because the Commonwealth never provided the
specific dates of the offenses, Appellant claims the trial court erred. Id. at
42-43.
The Commonwealth counters that Appellant did not establish the trial
court abused its discretion. Commonwealth’s Brief at 34. The Commonwealth
contends that it provided a timeframe for the solicitation, specifically June
2014, until March 11, 2015, the date the victim was killed. Id. at 35. The
Commonwealth points out it provided, as part of its discovery, various letters
and recorded phone calls providing the relevant dates, times, and locations. 4
Id. at 35-36.
____________________________________________
4 The Commonwealth did not argue waiver.
-6-
J-S27029-21
We review a ruling on a motion for a bill of particulars for an abuse of
discretion. Commonwealth v. Libengood, 152 A.3d 1057, 1059 (Pa. Super.
2016). To the extent “this case presents an issue of interpretation of the
relevant rules of criminal procedure[,] our standard of review is de novo and
our scope of review is plenary.” Id. (citation omitted).
The relevant rule is Pennsylvania Rule of Criminal Procedure 572, which
states:
(A) A request for a bill of particulars shall be served in writing by
the defendant upon the attorney for the Commonwealth within 7
days following arraignment. The request shall promptly be filed
and served as provided in Rule 576.
(B) The request shall set forth the specific particulars sought by
the defendant, and the reasons why the particulars are requested.
(C) Upon failure or refusal of the attorney for the Commonwealth
to furnish a bill of particulars after service of a request, the
defendant may make written motion for relief to the court within
7 days after such failure or refusal. If further particulars are
desired after an original bill of particulars has been furnished, a
motion therefor may be made to the court within 5 days after the
original bill is furnished.
(D) When a motion for relief is made, the court may make such
order as it deems necessary in the interests of justice.
Pa.R.C.P. 572.
Our Supreme Court explained as follows:
A bill of particulars, an anachronism of past procedural rules,
serves a narrow purpose; it is not an appropriate vehicle by which
to obtain discovery of the Commonwealth’s evidence[.]
A bill of particulars is intended to give notice to the accused of the
offenses charged in the indictment so that he may prepare a
defense, avoid a surprise, or intelligently raise pleas of double
-7-
J-S27029-21
jeopardy and the statute of limitations. It is not a substitute for
discovery and the Commonwealth’s evidence is not a proper
subject to which a bill of particulars may be directed.
Commonwealth v. Champney, 832 A.2d 403, 412-13 (Pa. 2003) (citations
omitted and formatting altered). “[W]hen there is no evidence that (1) the
Commonwealth withheld exculpatory evidence, or evidence otherwise
favorable to the accused; (2) exceptional circumstances existed; or (3)
‘surprises’ occurred at the trial, we will not find an abuse of discretion.”
Commonwealth v. Mercado, 649 A.2d 946, 959-60 (Pa. Super. 1994)
(citations omitted).
For example, in Champney, the trial court denied the defendant’s
motion for a bill of particulars requesting the Commonwealth to specify,
among other items, motive, identities of any co-conspirators, and specific acts
in furtherance of the conspiracy at issue. Champney, 832 A.2d at 413. The
Champney Court held that the trial court did not abuse its discretion because,
among other reasons, the defendant “was made well aware of the nature of
the Commonwealth’s evidence” through the discovery process. Id.
Instantly, we agree with the trial court that the informations identified
the dates, times, and locations as to sufficiently apprise Appellant of the
charges against him. See id. at 412-13. Further, similar to the defendant in
Champney, Appellant was provided with the Commonwealth’s discovery,
which included letters and recorded calls with specific dates, times, and
locations. See id. at 413. Regardless, Appellant has not identified any
-8-
J-S27029-21
withheld exculpatory or favorable evidence, surprises at trial, or other
exceptional circumstances. See Mercado, 649 A.2d at 959-60. For these
reasons, we agree with the trial court that it did not abuse its discretion in
denying Appellant’s motions for a bill of particulars, and therefore Appellant is
due no relief on this issue. See Libengood, 152 A.3d at 1059.
Prior Bad Acts Motion In Limine
In support of his second issue, Appellant argues the trial court erred in
denying his motion in limine to preclude the Commonwealth’s introduction of
six prior bad acts. Appellant’s Brief at 27. First, Appellant did not want the
Commonwealth to introduce his prior criminal record, including the fact that
he “was incarcerated at the time of the alleged criminal acts charged.” Id. at
29. Second, Appellant argues he was not charged or implicated in the death
of Jarret Smith, who Appellant believed was a confidential informant, and
therefore the jury should not hear any reference to his death. Id. Third,
Appellant asserts that because he was not charged or implicated in the
shooting of Richard Agurs, also known as “Noog,” the jury should not hear
about Agurs’ shooting. Id. at 29-30. Fourth, Appellant contends that his use
of the term “Rhino” should be precluded because the “term or [its] alleged
meaning . . . was so inflammatory that” a fair and impartial trial was
impossible. Id. at 30. Fifth, Appellant claims that a letter he wrote
threatening Snyder was not relevant, would only confuse the jury, and cast
him in a negative light. Id. at 31. Sixth, Appellant states that any reference
-9-
J-S27029-21
to his use of racially insensitive terms should be precluded because his jury
“was composed entirely of Caucasians.” Id.
The standard of review follows:
Questions concerning the admissibility of evidence are within the
sound discretion of the trial court and we will not reverse a trial
court’s decision concerning admissibility of evidence absent an
abuse of the trial court’s discretion. 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. 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. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citation
omitted).
With respect to prior bad acts, Pennsylvania Rule of Evidence 404(b)
states as follows:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person’s character in order to show that
on a particular occasion the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
This Court has noted:
Generally, evidence of prior bad acts or unrelated criminal activity
is inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. However, evidence
- 10 -
J-S27029-21
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. 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.
Evidence is relevant if it logically tends to establish a material fact
in the case, tends to make a fact at issue more or less probable
or supports a reasonable inference or presumption regarding a
material fact. All relevant evidence is admissible, except as
otherwise provided by law.
Evidence will not be excluded merely because it is harmful to a
defendant’s case. The trial court is not required to sanitize the
trial to eliminate all unpleasant facts where those facts are
relevant to the issues at hand.
Mere similarities between a defendant’s prior bad acts and the
crimes for which he is being tried will not qualify for a Rule
404(b)(2) exception. Rather, to qualify for an exception to Rule
404(b)(1)’s general prohibition, the prior bad acts must have a
close factual nexus sufficient to demonstrate their connective
relevance to the crime in question.
Commonwealth v. Akhmedov, 216 A.3d 307, 316 (Pa. Super. 2019) (en
banc) (citations omitted and formatting altered), appeal denied, 224 A.3d 364
(Pa. 2020). “Additionally, when examining the potential for undue prejudice,
a cautionary jury instruction may ameliorate the prejudicial effect of the
proffered evidence.” Commonwealth v. Hairston, 84 A.3d 657, 666 (Pa.
2014) (citations omitted) (holding trial court’s instruction on Pa.R.E. 404(b)
evidence minimized likelihood of prejudice). Similarly, “any error in admission
of prior bad acts was cured by the trial court’s contemporaneous
administration of a cautionary instruction and by its final instruction limiting
- 11 -
J-S27029-21
the jury’s consideration of the prior bad acts evidence.” Id. at 667 (citation
omitted).
Instantly, after careful review of the record, the parties’ briefs, and the
well-reasoned opinion of the trial court, concerning this issue, we affirm on
the basis of the trial court’s opinion. See Trial Ct. Op., 6/9/20, at 2-13. The
trial court thoroughly addressed each of the prior bad acts at issue and
concluded that Pa.R.E. 404(b) did not preclude their introduction. See id.;
Akhmedov, 216 A.3d at 316. Regardless, even if any of the prior bad acts
were improperly admitted, the trial court’s cautionary instruction, including an
admonition to not infer Appellant’s guilt, cured any resulting prejudice. See
N.T. Trial, 9/30/20, at 166-67; Hairston, 84 A.3d at 666-67. For these
reasons, because the trial court did not abuse its discretion, we affirm on the
basis of the trial court’s reasoning. See LeClair, 236 A.3d at 78.
Suppression of Wiretap Evidence
For his third issue, Appellant argues the trial court erred by denying his
motion to suppress the evidence from a wiretap, specifically recordings of his
conversations with Appellant’s prison visitors. Appellant’s Brief at 34. By way
of background, when the Commonwealth applied for wiretap authorization, it
attached a police officer’s forty-three page affidavit of probable cause. See
Ex. A to Appellant’s Mot. to Suppress, 2/17/20 (attaching the officer’s affidavit
as exhibit). In relevant part, the officer averred “that normal investigative
procedures have been tried and failed, reasonably appeared unlikely to
- 12 -
J-S27029-21
succeed if continued or attempted, or reasonably appear too dangerous to
employ.” Id. at ¶ 10. In sum, the affidavit exhaustively discussed the police’s
investigation into Appellant’s drug trafficking organization, including
numerous controlled purchases of narcotics, evidence seized from the
execution of other search warrants, and the homicides of Jarret Smith and the
instant victim. See generally id.
On appeal, Appellant contends that the Commonwealth’s application for
a wiretap did not fulfill the requirements of 18 Pa.C.S. § 5709(3)(i)-(vii).
Appellant’s Brief at 40. Specifically, Appellant argues that probable cause was
lacking because Appellant “did not make any ‘incriminating’ statements.” Id.
at 37. Appellant faults the Commonwealth for not providing specific details
and he complains that the affidavit alleges several crimes for which he had
not been charged. Id. at 38-40. Appellant asserts the Commonwealth failed
to identify the steps taken in its normal procedures to investigate Appellant.
Id. at 40-41. Appellant also claims that the trial court should have suppressed
eight letters he sent to Snyder from prison because he had a reasonable
expectation of privacy. Id. at 41.
The Commonwealth counters by summarizing the affidavit in support of
the wiretap, which, in the Commonwealth’s view, fulfilled the statutory
requirements for a wiretap. Commonwealth’s Brief at 30-32. The
Commonwealth also points out that generally, a prisoner has no right to
privacy in non-privileged prison mail. Id. at 33.
- 13 -
J-S27029-21
The standard of review follows:
Our standard of review in addressing a challenge to the denial of
a suppression motion is limited to determining whether the
suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are
correct. Because the Commonwealth prevailed before the
suppression court, we may consider only the evidence of the
Commonwealth and so much of the evidence for the defense as
remains uncontradicted when read in the context of the record as
a whole. Where the suppression court’s factual findings are
supported by the record, we are bound by these findings and may
reverse only if the court’s legal conclusions are erroneous. The
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to our plenary review.
Moreover, appellate courts are limited to reviewing only the
evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.
Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018) (citation
omitted).
In 2015, a wiretap was required to intercept and record prison visit
conversations unless the record established the absence of a reasonable
expectation of privacy.5 See Commonwealth v. Fant, 146 A.3d 1254, 1265
& n.13 (Pa. 2016).
With respect to authorizing a wiretap, Section 5709 states:
Each application for an order of authorization to intercept a wire,
electronic or oral communication shall be made in writing upon
____________________________________________
5 The General Assembly subsequently amended the Wiretap Act to permit
interception of prison visit conversations without prior court approval. See
Commonwealth v. Byrd, 235 A.3d 311, 315 (Pa. 2020).
- 14 -
J-S27029-21
the personal oath or affirmation of the Attorney General or a
district attorney of the county wherein the suspected criminal
activity has been, is or is about to occur and shall contain all of
the following:
* * *
(3) A sworn statement by the investigative or law enforcement
officer who has knowledge of relevant information justifying
the application, which shall include:
(i) The identity of the particular person, if known,
committing the offense and whose communications are to
be intercepted.
(ii) The details as to the particular offense that has been, is
being, or is about to be committed.
(iii) The particular type of communication to be intercepted.
(iv) A showing that there is probable cause to believe that
such communication will be communicated on the wire
communication facility involved or at the particular place
where the oral communication is to be intercepted.
(v) The character and location of the particular wire
communication facility involved or the particular place
where the oral communication is to be intercepted.
(vi) A statement of the period of time for which the
interception is required to be maintained, and, if the
character of the investigation is such that the authorization
for interception should not automatically terminate when
the described type of communication has been first
obtained, a particular statement of facts establishing
probable cause to believe that additional communications of
the same type will occur thereafter.
(vii) A particular statement of facts showing that other
normal investigative procedures with respect to the offense
have been tried and have failed, or reasonably appear to be
unlikely to succeed if tried or are too dangerous to employ.
18 Pa.C.S. § 5709(3)(i)-(vii).
- 15 -
J-S27029-21
Generally, suppression is not a remedy if the Commonwealth fails to
include a statement in compliance with subsection vii:
Section 5721.1 of the Wiretap Act provides that an aggrieved
party may move to exclude the contents of a wiretap or evidence
derived therefrom on six grounds. This creates a situation where
a Common Pleas judge can rule that a Superior Court judge erred
when determining that there was a legal basis to authorize a
wiretap. Section 5721.1 further provides that the only judicial
remedies and sanctions for non-constitutional violations of
the wiretap provisions are those exclusively found in 5721.1. The
plain language of section 5721.1 limits the availability of
suppression as a remedy for non-constitutional violations to six
grounds specifically enumerated. The normal investigative
procedures requirement is not included. Accordingly, suppression
is not available as a remedy even if alternate methods of
investigation were available and not used.
Commonwealth v. Steward, 918 A.2d 758, 760-61 (Pa. Super. 2007)
(citations and footnotes omitted, emphases in original, and formatting
altered).
Suppression, however, may be a remedy if a defendant establishes a
constitutional violation, e.g., the absence of probable cause. See
Commonwealth v. Burgos, 64 A.3d 641, 655 (Pa. Super. 2013). “The
standard for determining whether probable cause existed [for a wiretap] is
the same as that used to determine cause for search warrants.”
Commonwealth v. Doty, 498 A.2d 870, 882 (Pa. Super. 1985) (citations
omitted); accord Burgos, 64 A.3d at 655.
The question of whether probable cause exists for a wiretap must
be adjudged by the totality of the circumstances. Pursuant to the
totality of the circumstances test set forth by the United States
Supreme Court the task of the trial court is simply to make a
practical, common-sense decision whether, given all of the
- 16 -
J-S27029-21
circumstances set forth in the affidavit before him, including the
veracity and basis of knowledge of persons supplying hearsay
information, there is a fair probability that contraband or evidence
of a crime will be found in a particular place. . . . An affidavit of
probable cause to support a search warrant does not require a
prima facie showing of criminal activity on the part of the
occupants of the premises to be searched. Moreover, a reviewing
court may not conduct a de novo review of the issuing authority’s
probable cause determination. The role of both the reviewing
court and the appellate court is confined to determining whether
there is substantial evidence in the record supporting the decision
to issue the warrant. We must limit our inquiry to the information
within the four corners of the affidavit submitted in support of
probable cause when determining whether the warrant was issued
upon probable cause.
Burgos, 64 A.3d at 655-56 (citations omitted and formatting altered).
Finally, with respect to prison letters, prisoners have “no constitutional right
to privacy in [their] non-privileged prison mail.” Commonwealth v. Moore,
928 A.2d 1092, 1102 (Pa. Super. 2007).
Here, after careful review of the officer’s forty-three page affidavit in
support of probable cause for a wiretap, we agree with the trial court that
there was substantial evidence of probable cause to authorize the wiretap
application. See Trial Ct. Op., 5/21/20, at 5-6; Burgos, 64 A.3d at 655-56;
see also Ex. A to Appellant’s Mot. to Suppress, 2/17/20 (attaching the
officer’s affidavit as exhibit). We agree with the trial court that the officer’s
affidavit extensively describes Appellant’s drug trafficking organization,
including substantial evidence that Appellant ordered the killing of Ashcom.
See generally Ex. A to Appellant’s Mot. to Suppress, 2/17/20. We further
agree with the trial court that the officer averred that normal investigative
- 17 -
J-S27029-21
procedures had failed, would fail, or were too dangerous. See id. at ¶ 10;
Trial Ct. Op., 5/21/20, at 6; see generally 18 Pa.C.S. § 5709(3)(vii).
Regardless, suppression on these facts is not a remedy based on the instant
allegation that the officer failed to discuss normal investigative procedures in
his affidavit. See Steward, 918 A.2d at 760-61. Finally, we agree with the
trial court that Appellant had no reasonable expectation of privacy in the non-
privileged letters written by him while in prison. See Trial Ct. Op., 5/21/20,
at 7-10; Moore, 928 A.2d at 1102. Accordingly, Appellant is due no relief on
this issue.
Sufficiency and Weight of the Evidence
For his final issue, Appellant challenges the sufficiency and weight of the
evidence for all his convictions. Appellant’s Brief at 13. In support, Appellant
argues that but for the instant convictions, Ashcom’s murder “remains
unsolved.” Id. at 14. Appellant asserts that the Commonwealth did not
“produce the actual shooter” or present any evidence in which he “directed
anyone to kill” Ashcom. Id. at 14-15. In Appellant’s view, the Commonwealth
presented significant inflammatory evidence including prior bad acts, but it
did not establish Appellant ordered anyone to kill Ashcom. Id. at 15.
Appellant also states that the Commonwealth did not specifically identify any
dates or times “when the alleged acts occurred which resulted in [Ashcom’s]
death.” Id. With respect to the weight of the evidence, Appellant argues that
the jury erred given the lack of evidence. Id. at 27.
- 18 -
J-S27029-21
The standard of review for a sufficiency challenged is well-settled:
A claim challenging the sufficiency of the evidence is a question of
law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. When reviewing a sufficiency claim the court
is required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
A motion for new trial on the grounds that the verdict is contrary
to the weight of the evidence, concedes that there is sufficient
evidence to sustain the verdict. Thus, the trial court is under no
obligation to view the evidence in the light most favorable to the
verdict winner. An allegation that the verdict is against the weight
of the evidence is addressed to the discretion of the trial court. A
new trial should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would have
arrived at a different conclusion.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations and
footnote omitted).
Criminal solicitation is defined as follows:
A person is guilty of solicitation to commit a crime if with the intent
of promoting or facilitating its commission he commands,
encourages or requests another person to engage in specific
conduct which would constitute such crime or an attempt to
commit such crime or which would establish his complicity in its
commission or attempted commission.
18 Pa.C.S. § 902(a). Murder of the first degree is defined as a “criminal
homicide constitutes murder of the first degree when it is committed by an
intentional killing.” Id. 2502(a). Section 306 of the Crimes Code defines
accomplice liability as follows:
- 19 -
J-S27029-21
(a) General rule.—A person is guilty of an offense if it is
committed by his own conduct or by the conduct of another person
for which he is legally accountable, or both.
(b) Conduct of another.—A person is legally accountable for the
conduct of another person when:
(1) acting with the kind of culpability that is sufficient for the
commission of the offense, he causes an innocent or
irresponsible person to engage in such conduct;
(2) he is made accountable for the conduct of such other
person by this title or by the law defining the offense; or
(3) he is an accomplice of such other person in the commission
of the offense.
(c) Accomplice defined.—A person is an accomplice of another
person in the commission of an offense if:
(1) with the intent of promoting or facilitating the commission
of the offense, he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other person in
planning or committing it; or
(2) his conduct is expressly declared by law to establish his
complicity.
(d) Culpability of accomplice.—When causing a particular
result is an element of an offense, an accomplice in the conduct
causing such result is an accomplice in the commission of that
offense, if he acts with the kind of culpability, if any, with respect
to that result that is sufficient for the commission of the offense.
* * *
(g) Prosecution of accomplice only.—An accomplice may be
convicted on proof of the commission of the offense and of his
complicity therein, though the person claimed to have committed
the offense has not been prosecuted or convicted or has been
- 20 -
J-S27029-21
convicted of a different offense or degree of offense or has an
immunity to prosecution or conviction or has been acquitted.
18 Pa.C.S. § 306.
In Commonwealth v. Rios, 721 A.2d 1049 (Pa. 1998), our Supreme
Court explained accomplice liability in the context of first-degree murder:
It is well established that an accomplice is equally criminally liable
for the acts of another if he acts with the intent of promoting or
facilitating the commission of an offense and agrees, aids, or
attempts to aid such other person in either planning or committing
that offense. In order to sustain a conviction for first degree
murder via accomplice liability, the Commonwealth’s evidence
must be sufficient to establish that appellant possessed specific
intent to kill. Whether an accomplice possessed the same intent
to kill as his co-conspirator may be inferred from words, conduct,
the attendant circumstances including the actions taken after the
killing and all reasonable inferences that follow from them.
Rios, 721 A.2d at 1053 (citations omitted).
After careful consideration of the record, the parties’ arguments, and
the trial court’s opinion, concerning these issues, we affirm on the basis of the
trial court’s opinion. See Trial Ct. Op., 2/24/21, at 2-16. Specifically, we
agree with the trial court that there was sufficient evidence to support
Appellant’s convictions and find no abuse of discretion by the trial court in
rejecting Appellant’s weight claim. See id.; Widmer, 744 A.2d at 751-52.
Appellant is due no relief concerning sufficiency and weight of the evidence.
For all these reasons, we affirm the judgment of sentence.
Judgment of sentence affirmed.
- 21 -
J-S27029-21
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/02/2021
- 22 -
Circulated 10/19/2021 09:58 AM