Com. v. Carpenter, K.

J-A08014-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

KEVIN RASHAWN CARPENTER :

:

Appellant : No. 985 EDA 2020

Appeal from the Judgment of Sentence Entered January 16, 2020

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0006873-2018

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 13, 2021

Kevin Rashawn Carpenter appeals from the judgment of sentence

entered on January 16, 2020, following his convictions for criminal attempt -

murder of the first degree, aggravated assault, and discharge of a firearm into

an occupied structure. On appeal, Carpenter argues the trial court erred when

it granted the Commonwealth's pre-trial motion for joinder and when it

permitted a non-expert witness to testify regarding cell phone location data.

Finally, Carpenter argues the trial court erred in denying him a new trial based

on after-discovered evidence. After careful review, we affirm.

In 2017, the victim began a relationship with Carpenter after visiting

him frequently at the phone store where he worked. At the time, the victim

____________________________________________

* Former Justice specially assigned to the Superior Court.

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was twenty-six and Carpenter was eighteen. They eventually decided to

separate but continued to keep in contact.

On April 2, 2018, around midnight, the victim was asleep at her

apartment. She eventually woke up to a few missed calls from Carpenter.

After attempting to call Carpenter back, with no response, the victim heard a

car pull up outside her building. She looked out the window to see Carpenter

getting out of his Jeep and walking towards the front door. She went

downstairs and opened the door slightly to talk to Carpenter, while attempting

to not let in him. However, Carpenter managed to get through the door and

went up to her apartment. While inside, he began searching around her room,

eventually finding an envelope with money in it that she had been saving for

a car. Carpenter took the money and left. The victim then called the police.

The victim testified that she attempted to contact Carpenter to get the money

back but he never returned the money. This incident formed the basis of

criminal complaint #6866-2018.

On June 24, 2018, sometime around 2:00 a.m., the victim was at a

nearby Lukoil gas station, along with her sister and her sister's friend. As she

pulled up to a pump, she noticed Carpenter pull up in his Jeep behind her.

They had no interaction at the gas station.

However, on her drive back to her mother’s house, the victim stopped

at a red light and felt the back of her car get bumped by Carpenter’s Jeep.

The victim then drove around the block twice and called her family to come

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outside. When she pulled up to her mother’s house, she joined her family

members in front of the house.

Carpenter pulled up and parked on the opposite side of the street. The

victim, along with her family members, asked Carpenter why he was following

her. Carpenter did not respond, but the victim heard yelling coming from other

people in his car. About a minute after pulling up, Carpenter drove down to

the corner of the street, rolled down his window part way, and fired off four

or five shots.

The victim and her family members immediately ran back to the home

and did not see where Carpenter went afterwards. No one was injured. The

victim immediately called the police, who arrived shortly thereafter. No shell

casings or other evidence of a shooting was recovered. This incident formed

the basis for criminal complaint #6850-2018.

Throughout the following day, the victim kept receiving threatening

phone calls from Carpenter, which she reported to the police. On June 25,

2018, the victim filed for a temporary protection from abuse order.

On June 26th, 2018, at approximately 2:00 a.m., the victim was at her

mother’s house. She was still receiving threatening phone calls from Carpenter

so she called the police again. When officers arrived, Carpenter was still calling

and threatening her, so she put the phone on speaker to let the police listen

as Carpenter talked. Carpenter kept asking where she was and threatening

her, even after the police identified themselves. Officer Jeffrey Abreu and

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Officer Edward Colon confirmed the victim’s testimony about this incident

which formed the basis for criminal complaint #6849-2018.

The victim informed Officer Colon that Carpenter used a police scanner

to monitor the police. Officer Colon therefore provided the victim with his

direct phone number, so that the victim could contact him without Carpenter

being alerted.

Shortly after the police left, at approximately 3:30 a.m., the victim was

sitting in the living room of her mother’s home with her brother when she

heard a sound on the front porch. Multiple other family members were also

home at the time. She looked out the window, where she saw Carpenter

walking up. She immediately started running up the stairs. When she reached

the second floor, she heard shots being fired. She then continued up to the

third floor, where she called Officer Colon. Her little sister called 911.

Officers responded to the scene. After performing an overview of the

scene, eight shell casings were recovered, and damage to the front window

was observed, including several projectile holes. Carpenter’s Jeep was found

parked a few blocks away. Carpenter later consented to a search of the

vehicle. Once inside, officers located Carpenter’s ID in the center console, and

four shell casings.

Brian Knowlton, a digital forensic analyst employed by the Delaware

County Criminal Investigation Division, was provided Carpenter’s two iPhones

for extraction of data pursuant to valid search warrants. Knowlton testified

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about the software he uses for extracting data from cell phones and how he

used that software to extract data from both of Carpenter’s iPhones. Using

that data, Knowlton was able to determine the G.P.S. coordinates of

Carpenter’s phone at the time of the incident, by cross-referencing the data

with Google Maps, which placed him in the area of the incident. Appellant was

arrested and charged with four separate criminal informations for the four

separate incidents.

On March 5, 2019, the Commonwealth filed a motion for joinder of the

four complaints pending against Carpenter. Specifically, the Commonwealth

argued that all four incidents occurred within a three-month time period,

involved the same victim, and when heard together paint the complete picture

of the relationship between Carpenter and the victim. The Commonwealth

further argued that evidence of one incident would be admissible at trial in

each of the other incidents, and that there was no risk of jury confusion. After

a hearing, the trial court granted the motion.

On November 14, 2019, following trial, the jury reached verdicts on each

of the four incidents. The jury found Carpenter not guilty on all counts under

docket #6866-2018, and docket #6850-2018. On docket #6849-2018,

Carpenter was found guilty of terroristic threats and stalking.

Under docket #6873-2018, from which the current appeal lies, the jury

found Carpenter guilty of criminal attempt - murder of the first degree,

aggravated assault, and discharge of a firearm into an occupied structure. He

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was later sentenced under this docket to nine to eighteen years’

imprisonment, followed by five years’ probation.

Carpenter subsequently filed a post-sentence motion, which the trial

court denied after a hearing. This timely appeal followed.

Carpenter raises the following issues on appeal:

1. Whether the lower court erred when it granted the prosecution's

pre-trial motion for joinder, where evidence of the offenses

charged in the separate [i]nformations would be inadmissible in

separate trials for the others, where joinder created the danger of

confusion by the jury, and where joinder caused unfair prejudice

against [] Carpenter?

2. Whether the lower court erred when, over defense objection, it

permitted Brian Knowlton to testify regarding cell phone location

data and G.P.S. coordinates, where the prosecution never

qualified Mr. Knowlton as an expert by knowledge, skill,

experience, training or education, and his testimony in these

respects required scientific, technical, and/or other specialized

knowledge beyond that which an average [lay person] possesses?

3. Whether the lower court erred when it denied [] Carpenter's

post-sentence motion for a new trial based on newly-discovered

evidence, where the defense did not discover until after trial

material, favorable and/or exculpatory evidence that the

prosecution's key witness, the complainant, requested that the

"victim's advocate" tell the District Attorney she was unwilling to

testify and no longer desired to proceed against [] Carpenter?

Appellant’s Brief, at 5.

In Carpenter’s first issue, he contends the trial court erred in granting

the Commonwealth’s pretrial motion for joinder. See Appellant’s Brief, at 5.

Specifically, Carpenter argues it was improper to consolidate the informations

in a single trial, because: (1) evidence of the offenses charged in the separate

informations would not be admissible in separate trials for the others, (2)

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joinder created the danger of confusion by the jury, and (3) joinder resulted

in unfair prejudice against Carpenter. See id.

Trial courts wield considerable discretion in deciding whether to

consolidate separate indictments for trial:

[w]hether or not separate indictments should be consolidated for

trial is within the sole discretion of the trial court and such

discretion will be reversed only for a manifest abuse of discretion

or prejudice and clear injustice to the defendant. Consolidation of

separate offenses in a single trial is proper if the evidence of each

of them would be admissible in a separate trial for the others and

is capable of separation by the jury so that there is no danger of

confusion. Evidence of distinct crimes is inadmissible solely to

demonstrate a defendant's criminal tendencies. Such evidence is

admissible, however, to show a common plan, scheme or design

embracing commission of multiple crimes, or to establish the

identity of the perpetrator, so long as proof of one crime tends to

prove the others. This will be true when there are shared

similarities in the details of each crime.

Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa. Super. 2006)

(citations omitted).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court we conclude

that Carpenter’s first issue merits no relief. The trial court opinion properly

addresses Carpenter’s first claim, and we adopt it as our own. See Trial Court

Opinion, 7/20/2020, at 13-15 (concluding joinder was proper because 1. the

incidents in question involved the same defendant, the same victim, and many

of the same witnesses, and all four of the incidents occurred within a four-

month time period, 2. joinder of all four cases did not suggest to the jury that

they should convict Carpenter because of some violent or criminal propensity

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but rather enabled the Commonwealth to present the jury with a complete

picture of the history between Carpenter and the victim, which was vital to a

determination, 3. there was no risk of jury confusion because each of the

incidents occurred at a distinct time and place that are all well documented

and the verdict sheets were very clearly drafted, identifying each offense

separately by date and time, and 4. specifically noting the lack of jury

confusion is evidenced by the fact the jury found Carpenter guilty of only two

of the four incidents, showing the jury was able to separate the incidents and

determine which ones it found the Commonwealth established beyond a

reasonable doubt).

In his second issue, Carpenter contends the trial court erred by allowing

Knowlton to testify regarding cell phone location data and G.P.S. coordinates,

because he was never qualified as an expert and his testimony required

scientific, technical, and/or other specialized knowledge beyond that of a lay

person.

Our standard of review for the admission of evidence is well-settled:

The admission of evidence is solely within the discretion of

the trial court, and a trial court's evidentiary rulings will be

reversed on appeal only upon an abuse of that discretion.

An abuse of discretion will not be found based on a mere

error of judgment, but rather occurs where the court has

reached a conclusion that overrides or misapplies the law,

or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or

ill-will.

To constitute reversible error, an evidentiary ruling must not only

be erroneous, but also harmful or prejudicial to the complaining

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party. [A]n evidentiary error of the trial court will be deemed

harmless on appeal where the appellate court is convinced,

beyond a reasonable doubt, that the error could not have

contributed to the verdict.

Commonwealth v. Manivannan, 186 A.3d 472, 479-480 (Pa. Super. 2018)

(citation and internal quotation marks omitted).

Pennsylvania Rule of Evidence 702, which governs the admission of

expert testimony, provides:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of an

opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized

knowledge is beyond that possessed by the average layperson;

(b) the expert's scientific, technical, or other specialized

knowledge will help the trier of fact to understand the evidence or

to determine a fact in issue; and

(c) the expert's methodology is generally accepted in the relevant

field.

Pa.R.E. 702.

In contrast, Pennsylvania Rule of Evidence 701 governs opinion

testimony by lay witnesses:

Rule 701. Opinion Testimony by Lay Witnesses

If a witness is not testifying as an expert, testimony in the form

of an opinion is limited to one that is:

(a) rationally based on the witness's perception;

(b) helpful to clearly understanding the witness's testimony or to

determining a fact in issue; and

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(c) not based on scientific, technical, or other specialized

knowledge within the scope of Rule 702.

Pa.R.E. 701.

Carpenter cites to Manivannan for the proposition that Knowlton was

required to be an expert to give the testimony at issue. In Manivannan, this

Court held that expert testimony was required to interpret records of e-mail

transmissions and the nature of internet protocol (“IP”) addresses linked to

an internet service provider, for purposes of demonstrating a connection

between an IP address and a real-world location. See Manivannan, 186 A.3d

at 483-89. Specifically, we found such information required knowledge of

computer science that was “beyond the ken of ordinary laypersons.” See id.

at 486-487; see also Commonwealth v. Griffith, 32 A.3d 1231, 1239 (Pa.

2011) (“Pursuant to our general standard, a need for expert testimony arises

when the jury is confronted with factual issues whose resolution requires

knowledge beyond the ken of the ordinary layman”) (citation and internal

quotation marks omitted).

While Manivannan is not directly on point, we find our further

distinction between expert testimony and lay testimony in that case

instructive:

[E]xpert testimony reflects the application of expertise and does

not stray[] into matters of common knowledge. We have further

explained that expert testimony requires knowledge, information

or skill beyond what is possessed by the ordinary juror, and that

expert testimony must be distinctly related to a science, skill or

occupation which is beyond the knowledge or experience of an

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average lay person and does not involve[] a matter of common

knowledge.

Manivannan, 186 A.3d at 485 (citations and internal quotation marks

omitted).

It was stipulated at trial that valid search warrants were obtained for

Carpenter’s cell phone records and for two separate cell phones found on

Carpenter. See N.T., 11/13/2019, at 161-62. Knowlton, a forensic analyst,

obtained the cell phones through a chain of custody. At trial, Knowlton testified

regarding the process of how he extracts data from cell phones, including

G.P.S coordinates, and how he then is able to map a person’s location using

Google Maps. See id. at 166-170, 182. He denied any knowledge of how the

coordinates were calculated. See id. at 181-2, 197-8.

This specific issue is one of first impression in this Commonwealth. While

we acknowledge the Commonwealth’s assertion that this technology is in

common, everyday use by lay persons, the procedure used here is akin to

hearsay. Knowlton did not assert he had independent knowledge of

Carpenter’s location; rather, he relied on assertions generated by ostensibly

automated processes.

Fundamentally, the issue appears to be limited to the accuracy and

reliability of the coordinates generated. Knowlton disclaimed any specialized

knowledge on this issue. Further, as Carpenter points out, depending which

method is used to generate the coordinates, the accuracy can vary due to

circumstances such as cell tower locations. See State v. Steele,169 A.3d

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797, 816-817 (Conn. App. 2017). Under these circumstances, it would appear

that a witness presenting this testimony would be required to have some

knowledge of (a) the method of location used, and (b) the accuracy and

reliability of that method in the area in question, whether through personal

experience or technical knowledge. Ultimately however, we conclude that we

need not decide this thorny issue on the record before us.1

Even assuming, for purposes of this appeal, that Knowlton’s testimony

was improper expert testimony, and the trial court abused its discretion in

permitting Knowlton to testify regarding the technical process of extracting

data from a cell phone and using the G.P.S. coordinates found from that data

to track a location, we are convinced, beyond a reasonable doubt, that the

exclusion of this evidence would not have impacted the jury’s verdict.

Knowlton’s testimony was not the only evidence linking Carpenter to the

crimes charged, nor was it crucial to a guilty verdict. The Commonwealth did

not need to establish an affiliation between the G.P.S. data extracted from

Carpenter’s cell phones and the real-world physical locations of that data. The

victim positively identified Carpenter as the man she saw walking up to the

front of her mother’s house moments before she heard gunshots. See N.T.,

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1 Perhaps a future case can create a better record by way of a pre-trial ruling

on the admissibility of such evidence, allowing a defendant to present expert

evidence challenging the testimony without forcing the defendant to present

evidence at trial. Here, the record is devoid of any evidence regarding the

accuracy and reliability of the method Knowlton employed in the area of the

victim’s mother’s home.

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11/13/2019, at 63-64. Police found shell casings outside the home and bullet

damage in the home. See id. at 202, 207. Police also found Carpenter’s

vehicle parked nearby with shell casings in it. See id. at 211-218. Officer and

crime scene investigator Jeffrey Linowski opined that the bullets had been

fired into the home from either the porch or otherwise directly in front of the

home. See id. at 211.

Furthermore, the interrelated nature of all the incidents leading up to

the shooting provided a res gestae that strongly implied that Carpenter was

the person who shot at the victim’s mother’s home. The jury clearly credited

the victim’s testimony, along with the testimony of multiple police officers who

corroborated the evidence inculpating Carpenter.

Therefore, even if Knowlton had never given his testimony, the jury

would have still heard that Carpenter’s vehicle was parked nearby the crime

scene. Further, the jury heard the victim’s positive identification of the man

she saw walking up to the front of the home moments before she heard shots

fired. Finally, these two pieces of evidence were bolstered by the extensive

evidence showing that Carpenter had threatened to kill the victim by shooting

her. Under these circumstances, we conclude the jury’s verdict would have

been the same based on the multitude of other evidence presented. For these

reasons, we conclude that to the extent that the G.P.S. evidence was

erroneously admitted, said error was harmless.

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Carpenter’s final claim is that the trial court erred when it denied his

post-sentence motion for a new trial based after-discovered evidence.

After-discovered evidence is the basis for a new trial when it: 1)

has been discovered after the trial and could not have been

obtained at or prior to the conclusion of trial by the exercise of

reasonable diligence; 2) is not merely corroborative or

cumulative; 3) will not be used solely for impeaching the

credibility of a witness; and 4) is of such nature and character that

a new verdict will likely result if a new trial is granted. Further,

the proposed new evidence must be producible and admissible.

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011) (citations

and internal quotation marks omitted). “The test is conjunctive; the defendant

must show by a preponderance of the evidence that each of these factors has

been met in order for a new trial to be warranted.” Commonwealth v.

Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (citations omitted).

In his motion for post-trial relief, Carpenter contended that since the

trial he had learned the victim had at some point prior to trial expressed a

desire not to proceed, or an unwillingness to testify, to the “victim’s advocate”

and had asked that this be communicated to defense counsel. He argued that

her apparent wishes were not followed, and as such he should be granted a

new trial.

With respect to the first prong, Carpenter simply states that neither he

nor his counsel could have obtained this evidence before trial concluded. With

respect to the second prong, Carpenter again simply states that this new

evidence is not merely corroborative or cumulative, as the jury never heard

this evidence during trial from any other source. Regarding the third prong,

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Carpenter argues the evidence will not be used solely to impeach the victim,

asserting that instead, the victim’s refusal to testify against Carpenter at trial,

even if temporary, "calls into serious question" whether she stands by her

earlier accusations. Finally, with respect to the fourth prong, Carpenter argues

that if this after-discovered evidence was presented to a jury, a different

outcome is likely because a skilled defense counsel could use it to obtain a

recantation from the victim.

The Commonwealth argues the after-discovered evidence alleged by

Carpenter does not entitle him to a new trial because the information provided

is inadmissible hearsay and would not compel a contrary result at a new trial.

The trial court addressed this claim during a hearing held on Carpenter’s

post-sentence motion as follows:

[Defense Counsel]: … And regarding the -- subsection (d), that

was -- that information was brought to me after the verdict had

gone through regarding the fact that there was a conversation

overheard by one of the individuals who was outside in the hallway

because they were sequestered in light of the fact that they were

-- they potentially could’ve been called as a witness and it was not

brought until after the jury’s verdict to my attention.

THE COURT: So hold on there. Let me back this up. It was not

discovered until after trial [the victim] specifically requested the

victim’s advocate to tell the District Attorney of her desire not to

proceed and unwillingness to testify, to which the advocate failed

to do so? So did [the victim] testify?

[Defense Counsel]: She did testify.

THE COURT: Well, she could’ve refused to testify when she was

on the witness stand.

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[Defense Counsel]: I understand that, Your Honor, and that’s why

I did put in there it was afterwards that I found that information.

THE COURT: Well, if she testified, she testified.

[Defense Counsel]: Yes, Your Honor.

THE COURT: She sat here. She had a right to say I don’t want to

testify.

[Defense Counsel]: She did, and if that knowledge was known, I

could’ve also have questioned her as to whether or not --

THE COURT: Well --

[Defense Counsel]: -- she wanted to do that.

THE COURT: -- that’s hearsay anyhow.

[Defense Counsel]: I understand, sir.

THE COURT: So that’s going to be denied.

N.T., 3/5/2020, at 4-7. The trial court thereafter filed an order denying this

claim.

Unless there has been a clear abuse of discretion, an appellate

court will not disturb the trial court's denial of an appellant's

motion for a new trial based on after-discovered evidence. In

order for after-discovered evidence to be exculpatory, it must be

material to a determination of guilt or innocence.

Chamberlain, 30 A.3d at 416 (citations omitted).

We conclude Carpenter is not entitled to a new trial. First, the

information brought by Carpenter is not actual evidence of anything. There

was no actual evidence presented that the victim was reluctant to testify. The

information presented by Carpenter is simply inadmissible hearsay. It is not

even clear from the record who overheard the alleged comment or who made

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the alleged comment. Carpenter has failed to show the alleged statement

would be producible or admissible at trial. See Commonwealth v. Scott,

470 A.2d 91, 95 (Pa. 1983).

Moreover, even if the information identified by Carpenter constituted

actual evidence, it would not meet the four-prong admissibility test. Although

Carpenter argues the “evidence” will not be used solely to impeach the victim,

he goes on to state the victim’s refusal to testify against Carpenter at trial,

even if temporary, "calls into serious question" whether she stands by her

earlier accusations. This is a direct attack on the victim’s credibility. See

Commonwealth v. Castro, 93 A.3d 818, 827 n. 13 (Pa. 2014) (finding

appellee’s suggestion regarding third prong was based on the degree of

impeachment he anticipates he would inflict, and noting that “[e]ven if his

impeachment would ‘destroy and obliterate’ a witness, it is still

impeachment[.]”).

Carpenter cites to Commonwealth v. Rivera, 939 A.2d 355 (Pa.

Super. 2007) for his assertion. In Rivera, we remanded for an evidentiary

hearing to determine whether a new trial was required based on after-

discovered evidence that a laboratory technician who testified as to the type

and amount of drugs recovered at the crime scene allegedly was corrupt and

engaged in illegal practices. There, with respect to the third prong, we found

the after-discovered evidence did more than simply impeach the technician’s

testimony, finding it called “into serious question the type and amount of drug

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upon which Appellant's conviction and sentence is based.” Id. at 359. Here,

there is no such additional function of the new information presented by

Carpenter.

Therefore, the trial court did not err in denying relief based on

Carpenter's claim of after-discovered evidence. Carpenter’s final claim is

without merit.

As none of Carpenter’s claims on appeal merit relief, we affirm the

judgment of sentence.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/2021

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Circulated 09/07/2021 10:17 AM