Com. v. Davis, J.

J-A05019-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JAHLEEL C. DAVIS :

:

Appellant : No. 1964 EDA 2019

Appeal from the Judgment of Sentence Entered January 18, 2019

In the Court of Common Pleas of Montgomery County Criminal Division

at No(s): CP-46-CR-0006720-2017

BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*

MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 06, 2021

Appellant Jahleel C. Davis appeals from the judgment of sentence

entered following his jury trial conviction for attempted murder and related

offenses. Appellant claims that the Commonwealth failed to provide requested

discovery and violated Brady v. Maryland, 373 U.S. 83 (1963). After review,

we affirm in part, vacate in part as to the sentence for conspiracy to commit

murder, and deny Appellant’s application for remand.

We affirm. Additionally, we deny Appellant’s application for remand for

an evidentiary hearing.

We adopt the facts and procedural history set forth in the trial court’s

opinion. See Trial Ct. Op., 12/27/19, at 1-17. Briefly, on the night of August

8, 2017, Appellant and Jamal Jones (co-defendant) shot Kendall Rosendary in

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* Former Justice specially assigned to the Superior Court.

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Norristown, Pennsylvania.1 At that time, Rosendary was walking on Cherry

Street near a playground. Rosendary heard people yelling, and ran when he

saw someone with a gun. Appellant and his co-defendant shot Rosendary

multiple times. Rosendary was rushed to a hospital and survived. Rosendary

could not identify who shot him, but told police that at least three men, all of

them armed, had attacked him. Rosendary also recalled that two of the

attackers were wearing dark hooded sweatshirts.

Norristown Police chased a Chevrolet Impala that left the vicinity of the

shooting at high speed. The Impala pulled onto Cherry Street and three

individuals fled the Impala on foot. The police recovered a .38 Special caliber

revolver containing six fired cartridge casings from the Impala’s interior.

The police searched the area around where the Impala stopped and

arrested Appellant in the early morning hours of August 9, 2017. The police

recovered a .45 caliber Para-Ordnance handgun and a black hooded sweatshirt

near the area where they arrested Appellant. The police also recovered a cell

phone from Appellant. The police arrested co-defendant and another male

(the third individual) nearby hiding under a back porch. The police recovered

a .40 caliber Glock Model 27 handgun from the area where they arrested co-

defendant and the third individual.

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1 The shooting of Rosendary was related to a series of shootings involving rival

groups of young men from Norristown and Pottstown. Appellant and co-

defendant intended to kill a member of the Norristown faction in retaliation

for the murder of Jordan Scott, a member of their Pottstown faction.

Rosendary was not affiliated with either group.

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The police recovered both fired cartridge casings of various calibers and

bullet fragments from the scene of the shooting. Detective Eric Nelson of the

Montgomery County Detective Bureau, an expert in the field of forensic

firearms identification and analysis, testified that he examined the

aforementioned firearms as well as fired cartridge casings, bullets, and bullet

fragments that the police recovered from the scene of the Rosendary shooting.

Detective Nelson opined that the Glock 27 firearm recovered near co-

defendant fired the .40 caliber fired cartridge casings he examined. Detective

Nelson also concluded that a single firearm had fired the recovered .45 caliber

cartridge casings, but the Para-Ordnance pistol the police recovered when

they arrested Appellant did not fire those .45 caliber cartridge casings.

Detective Nelson further testified that some of the bullets and bullet fragments

that were recovered from the scene of the shooting were consistent with

bullets fired from the Glock 27 pistol and others were consistent with bullets

fired from the .38 Special caliber revolver. The police also recovered several

9mm caliber fired cartridge casings from the scene of the shooting, but the

police never recovered a 9mm caliber firearm after the shooting.

The Pennsylvania State Police Harrisburg Regional Crime Lab found

gunshot residue on the sweatshirt recovered near Appellant. Albert Lattanzi

of the Harrisburg Crime Lab testified that the presence of this residue on the

sweatshirt was consistent with the recent firing of a gun by the wearer of the

shirt or that the shirt’s wearer was near someone else firing a gun.

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The police performed swabs on the firearms they recovered from

Appellant, his co-defendant, and the Impala to test for DNA. The parties

stipulated, in relevant part that the DNA swabs taken from the grip of the .38

Special caliber revolver found in the back of the Impala contained a mixture

of DNA from at least three individuals, and it was 19,660 times more likely

that Appellant was one of those three individuals than a random person.

Appellant’s cell phone contained videos and photographs depicting

various firearms. Appellant made numerous posts on Facebook expressing

his desire to get revenge for the death of Scott, that he intended to “grab

bigger guns,” “mask up,” and “catch another body.”

Appellant testified that he, co-defendant, and the third individual

attended a party in Norristown on August 8, 2017. Appellant stated that after

the three of them left the party and were walking down the street, someone

called to them. Appellant saw a man pointing a gun at him. Appellant could

not identify Rosendary as that gunman. Appellant testified that he and his

companions ran away from the gunman, who opened fire. Appellant stated

that he then drew his gun and returned fire, and that he and his companions

got into co-defendant’s Impala and fled from the shooter. Appellant and the

others then abandoned the car and fled on foot after police vehicles blocked

their path. Appellant claimed his comments on social media were references

to the music he listens to.

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On November 2, 2018, the jury convicted Appellant of attempted

murder, conspiracy to commit murder, aggravated assault, conspiracy to

commit aggravated assault, and possession of an instrument of a crime.2

During the sentencing hearing, Lieutenant Todd Dillon of the Norristown

Police Department testified that during his investigation, he concluded that

Tyrique Lyons was the intended target of Appellant and his co-defendant. N.T.

Sentencing Hr’g, 1/18/19, at 22. Lieutenant Dillon explained that Lyons, Haj

Washington, and Elijah Jones had a confrontation with individuals from

Pottstown about forty-five minutes prior to the Rosendary shooting and they

went to the Cherry Street Park to “lay[] low”. Id. at 22, 27, 30. Dillon testified

that after Lyons, Washington, and Jones saw a passing vehicle that the three

men recognized as one from Pottstown, they left the park. Id. at 22, 28-29,

31-32. He further stated that when Lyons and his companions returned, they

saw the victim on a stoop across from the park. Id. at 22. Lieutenant Dillon

stated his conclusion that Rosendary was in the wrong place at the wrong

time. Id. at 22-23. Dillon explained that he knew who the intended targets

were because “they,” meaning Lyons, Washington, and Jones, had spoken to

the police about two or three weeks after the shooting. Id. at 26-27, 32.

Ultimately, on January 18, 2019, the trial court sentenced Appellant to

concurrent terms of twenty to forty years’ imprisonment for attempted murder

and conspiracy to commit murder. The trial court also sentenced Appellant to

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2 18 Pa.C.S. §§ 901(a), 903(a)(1), 2702(a)(1), 903(a)(1), and 907(a),

respectively.

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a consecutive term of one to two years’ imprisonment for possession of an

instrument of crime. Appellant’s aggregate sentence is twenty-one to forty-

two years’ imprisonment. Appellant filed a timely post-sentence motion for a

new trial, alleging, among other things, that the Commonwealth violated

Pa.R.Crim.P. 573 and Brady. Specifically, Appellant alleged that he had

requested copies of all witness statements related to the shooting and that

the Commonwealth had not turned over the witness statements of Lyons,

Washington, and Jones that Lieutenant Dillon described during the sentencing

hearing. Post-Sentence Mot., 1/25/19, at ¶¶ 27-37. Appellant asserted that

if this information had been disclosed to him, he could have presented

evidence at trial about “plausible alternative suspects who may have

possessed the two missing firearms that were not recovered from the scene

of the shooting.” Id. at ¶ 38. Appellant also argued that this evidence would

have corroborated Appellant’s trial testimony that he acted in self-defense

because a group of Norristown individuals approached him and opened fire,

and Appellant returned fire. Id. at ¶¶ 39-41, 43, 46.

The trial court held post-sentence motion hearings on May 10, and June

3, 2019. Lieutenant Dillon testified at the May 10, 2019 hearing that, of the

three individuals who the police believed were intended targets of the

shooting, only Lyons spoke to the police and his prior testimony about

speaking with “them” (i.e. all three individuals) was erroneous. N.T. Post-

Sentence Hr’g, 5/10/19, at 12-13. Lieutenant Dillon explained that Detectives

Leeds and Sowell conducted the interview with Lyons, and he was present for

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most of that interview. Id. at 20-21. The interview occurred about two weeks

after the Rosendary shooting. Id. at 17. Lieutenant Dillon testified that the

Norristown Police Department does not have policies regarding witness

interviews. Id. at 21. He stated that it is up to the individual officer to record

a witness interview, and that Lyons would only speak to the police off the

record, would not give a formal statement, and would not testify. Id. at 22-

23. Lieutenant Dillon recalled that Lyons said that he and his companions had

a confrontation with members of the Pottstown faction about forty-five

minutes to an hour before Kendall Rosendary was shot. Id. at 13. Lyons,

Jones, and Washington fled the confrontation and hid in Cherry Street Park.

Id. at 13, 15-16. While in the park, Lyons saw a car that he thought belonged

to members of the Pottstown faction pass by and Lyons believed that the

Pottstown group was hunting him and his companions. Id. at 13, 31. Lyons

and his companions left the park, and about six minutes after leaving the park,

Lyons heard gunshots. Id. at 13, 22, 34. Lieutenant Dillon explained that

information about Lyons, Washington, and Jones being the intended targets

of the August 8, 2017 shooting was included in a timeline of gun violence

turned over to Appellant during discovery. Id. at 25, 35.

Detective Stephen Sowell testified that he and Detective Charles Leeds

spoke with Lyons. N.T. Post-Sentence Hr’g, 6/3/19, at 35-36, 54. Lieutenant

Dillon came in and out during the interview. Id. at 41, 54. Lyons told the

detective that he was at Cherry Street Park and did not witness the actual

shooting. Id. at 36-37. Detective Sowell could not recall if Lyons stated that

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he heard the shooting. Id. at 54-55. Lyons told the detectives that he saw a

car circling the block several times, which made Lyons worried and he left the

park. Id. at 37-38, 53. Also that night, there was an anonymous 911 call

about a confrontation between two groups of black males in the area. Id. at

39. Detective Sowell did not create a report memorializing this interview

because Lyons did not give a statement, and he would not sign anything. Id.

at 40-41, 52. Detective Sowell did not take any notes during the interview.

Id. at 51.

Detective Charles Leeds testified that he and Detective Sowell spoke

with Lyons on August 22, 2017. Id. at 56, 62. During the interview,

Lieutenant Dillon came in and out of the interview room. Id. at 58. Detective

Leeds asked Lyons if he was willing to have his interview written down, and

Lyons said that he was not. Id. at 62. Detective Leeds recalled that Lyons

said he was hanging out in the park, saw a car circling the area, and then left

the park. Id. at 57-58. According to Detective Leeds, Lyons “very clearly told

us he left [the park] prior to the shooting.” Id. at 64. Detective Leeds did

not take any notes during the interview with Lyons, but he summarized the

information he received from Lyons in an email to Lieutenant Dillon. Id. at

57, 63-64.

The trial court denied Appellant’s post-sentence motion on June 10,

2019. Appellant then timely appealed. Both Appellant and the trial court

complied with Pa.R.A.P. 1925.

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On February 10, 2020, Appellant filed an application for remand to the

trial court for an evidentiary hearing regarding after-discovered evidence.

This Court denied Appellant’s application without prejudice to raise the issue

in his brief or in a subsequent application. Order, 2/28/20. Appellant filed a

new application for remand on February 22, 2021, again requesting that we

remand for the trial court to consider Appellant’s after-discovered evidence

claim. The Commonwealth filed a response on February 24, 2021. This Court

deferred resolution of Appellant’s application for remand to the present panel.

Order, 2/26/21.

Appellant raises two issues for our review:

1. Were the Appellant’s rights under Pa.R.Crim.P. 573 violated

where the Commonwealth failed to inform the Appellant, in a

case involving a claim of self-defense by unknown assailants,

about the eyewitness status, or the address, of an eyewitness

that had interviewed with police about the crime, gave details

about his involvement in an altercation immediately preceding

the crime, admitted to being in the vicinity of the shooting, and

stated that he believed that the Appellant was out to get him?

2. Were the Appellant’s rights under the due process protections

afforded by Article 1, Sections 1, 9, and 11 of Pennsylvania’s

Constitution, and the Due Process Clauses of the 5th and 14th

Amendments of the United States Constitution, violated where

the Commonwealth failed to disclose to the Appellant, in a case

involving a claim of self-defense by unknown assailants, a

police interview with a witness that admitted to having [an]

altercation with the Appellant approximately thirty minutes

prior to the shooting, who believed that Appellant wanted to

kill him, and who admitted to being in the vicinity of the

shooting when gunshots were fired?

Appellant’s Brief at 4 (formatting altered).

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Rule 573 Discovery Violation

In his first issue, Appellant argues that the Commonwealth violated

Pa.R.Crim.P. 573(B)(2)(a) by withholding the existence of Tyrique Lyons as a

witness.3 Id. at 10-20. Specifically, Appellant contends that Lyons told the

police that he had been in the vicinity of the shooting with two of his

associates, he had confronted Appellant prior to the shooting, and that he

believed that Appellant was in the area to kill him. Id. at 11. Appellant notes

that a July 24, 2018 email to the assistant district attorney proves that the

Commonwealth was aware of Lyons’ interview with the police. Id. at 12.

Appellant contends that Lyons was an eyewitness for the purposes of Rule

573(B)(2)(a) and his identity was discoverable under that Rule. Id. at 13-15.

Appellant argues that, unlike Brady, Rule 573 does not require Appellant to

act diligently in seeking the withheld evidence. Id. at 15-16. Finally,

Appellant concludes that the Commonwealth’s failure to disclose Lyons’

identity as a witness was not harmless error because Lyons’ testimony would

have corroborated Appellant’s claim that he shot Rosendary in self-defense.

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3 Appellant also asserts that the Commonwealth did not disclose in discovery

information about an interview the police had with Rosendary shortly after the

shooting. Appellant’s Brief at 10. Appellant claims this interview contained

impeachment material. Id. However, Appellant did not include this claim in

his statement of questions. See Pa.R.A.P. 2116(a) (stating that “[n]o

question will be considered unless it is stated in the statement of questions

involved or is fairly suggested thereby”). Further, Appellant has failed to

develop his claim about the Rosendary interview with any citations to the

record or applicable law. Therefore, it is waived. See Commonwealth v.

Rodgers, 605 A.2d 1228, 1239 (Pa. Super. 1992) (stating that “[w]e must

deem an issue abandoned where it has been identified on appeal but not

properly developed in the appellant’s brief” (citation omitted)).

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Id. at 19-20.

The Commonwealth responds that Appellant is not entitled to relief

under the discretionary discovery provisions of Rule 573. Commonwealth’s

Brief at 21-25. Specifically, the Commonwealth asserts that, during discovery,

it provided a timeline documenting gun violence in Norristown, which listed

Lyons as one of the possible intended targets of the August 8, 2017 shooting.

Id. at 23-24. The Commonwealth also claims that Lyons was named in a

statement from the mother of one of his friends. Id. at 24. Further, the

Commonwealth contends that Lyons is not an “eyewitness” because the

confrontation between Lyons and Appellant occurred forty-five minutes prior

to the shooting. Id. at 25.

The Commonwealth also argues the Appellant is not entitled to relief

under the mandatory disclosure provisions of Rule 573. Id. at 25-32. The

Commonwealth asserts that it turned over in discovery several items

identifying Lyons, Washington, and Jones as the intended targets of the

shooting. Id. at 28-30.

We note that “decisions involving discovery in criminal cases lie within

the discretion of the trial court. The court’s ruling will not be reversed absent

abuse of that discretion.”4 Commonwealth v. Smith, 955 A.2d 391, 394

(Pa. Super. 2008) (en banc) (citations omitted).

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4 We have recently emphasized that this Court “does not directly review the

conduct of prosecutors. Instead, under Brady, its progeny, and the Rules of

(Footnote Continued Next Page)

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Additionally, this Court has explained:

While the trial court retains the discretion to fashion an

appropriate remedy when a party has violated the discovery rules,

such discretion is not unfettered. 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.

Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citations

and quotation marks omitted).

Rule of Criminal Procedure 573 provides, in relevant part:

(B) Disclosure by the Commonwealth.

(1) Mandatory. In all court cases, on request by the defendant,

and subject to any protective order which the Commonwealth

might obtain under this rule, the Commonwealth shall disclose

to the defendant’s attorney all of the following requested items

or information, provided they are material to the instant case.

The Commonwealth shall, when applicable, permit the

defendant’s attorney to inspect and copy or photograph such

items.

(a) Any evidence favorable to the accused that is material

either to guilt or to punishment, and is within the possession

or control of the attorney for the Commonwealth;

(b) any written confession or inculpatory statement, or the

substance of any oral confession or inculpatory statement,

and the identity of the person to whom the confession or

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Criminal Procedure, we review the trial court’s appraisal of prosecutorial

acts or omissions, and whether those actions warrant a new trial.”

Commonwealth v. Felder, 247 A.3d 14, 20 (Pa. Super. 2021) (emphasis in

original). Appellant’s arguments are directed towards the Commonwealth’s

conduct and he does not discuss whether the trial court abused its discretion

in denying his post-sentence motion for a new trial. See Appellant’s Brief at

10-20. Nevertheless, because Appellant’s failure to discuss the relevant

standard of review does not impede our review, we decline to find waiver.

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inculpatory statement was made that is in the possession or

control of the attorney for the Commonwealth;

* * *

(f) any tangible objects, including documents, photographs,

fingerprints, or other tangible evidence; and

* * *

(2) Discretionary With the Court.

(a) In all court cases, except as otherwise provided in Rules

230 (Disclosure of Testimony Before Investigating Grand

Jury) and 556.10 (Secrecy; Disclosure), if the defendant

files a motion for pretrial discovery, the court may order the

Commonwealth to allow the defendant’s attorney to inspect

and copy or photograph any of the following requested

items, upon a showing that they are material to the

preparation of the defense, and that the request is

reasonable:

(i) the names and addresses of eyewitnesses;

(ii) all written or recorded statements, and substantially

verbatim oral statements, of eyewitnesses the

Commonwealth intends to call at trial;

(iii) all written and recorded statements, and

substantially verbatim oral statements, made by co-

defendants, and by co-conspirators or accomplices,

whether such individuals have been charged or not; and

(iv) any other evidence specifically identified by the

defendant, provided the defendant can additionally

establish that its disclosure would be in the interests of

justice.

* * *

(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.

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(E) Remedy. If at any time during the course of the proceedings

it is brought to the attention of the court that a party has failed to

comply with this rule, the court may order such party to permit

discovery or inspection, may grant a continuance, or may prohibit

such party from introducing evidence not disclosed, other than

testimony of the defendant, or it may enter such other order as it

deems just under the circumstances.

Pa.R.Crim.P. 573(B), (D), (E).

Further, this Court has explained:

A defendant seeking relief from a discovery violation must

demonstrate prejudice. A violation of discovery does not

automatically entitle appellant to a new trial. Rather, an appellant

must demonstrate how a more timely disclosure would have

affected his trial strategy or how he was otherwise prejudiced by

the alleged late disclosure.

Commonwealth v. Causey, 833 A.2d 165, 171 (Pa. Super. 2003) (citations

and quotation marks omitted).

Turning to the instant case, the trial court explained:

Contrary to [Appellant’s] claims, the evidentiary hearings

established [that] the following information was provided to

[Appellant] months prior to trial:

a) Kendal[l] Rosendary was considered as a mistaken

identity victim and the possible intended targets were

Tyrique Lyons, Elijah Jones, Terrell Castile, and Haj

Washington. Norristown v. Pottstown Gun Violence

Timeline, Exhibit C-176.

b) Elijah Jones’ mother, Sparkle Jones, provided a

statement to police where she:

a. noticed an Impala circling the block,

b. received a phone call from her son’s girlfriend that

some boys were driving around looking for her son

and Haj Washington,

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c. stated that her son was in the house when she

received that call and believed he had just been out

with Tyrique Lyons and Terrell Castile, and

d. heard gunshots about six minutes after receiving

that phone call. Email regarding Sparkle Jones,

Exhibit C-177.

c) Christina Powel-Williams provided a statement to police

where she observed:

a. the green Impala circling Cherry Street five to six

times,

b. groups of teenage boys walking the streets of

Norristown where one group appeared “upset” and

“angry,” and

c. one person from another group with hoodies

stating, “I am not going far down. I’m am trying to

shoot from here.” Powell-Williams Statement, Exhibit

C-198.

It is clear that the only “new” evidence not provided to [Appellant]

was Lieutenant Dillon’s statement that Lyons, Jones, and

Washington had a confrontation with [Appellant] forty-five

minutes before the shooting and were hiding in the park before,

not at the time, of the shooting. [Appellant] claims a Rule 573

violation even though Lieutenant Dillon did not memorialize the

conversation with Lyons.

* * *

[Appellant] claims he was prejudiced by the late information

because it “would have allowed . . . [Appellant] to create a

plausible scenario of self-defense that [he] otherwise lacked.”

[Appellant] had ample opportunity to develop the theory of his

case as he was aware of the other intended victims prior to trial.

[Appellant] clearly knew from the Norristown versus Pottstown

timeline that Lyons, Washington, and Jones were “possible

intended targets” of the shooting. The additional details provided

by Lieutenant Dillion [sic] could have been discovered by defense

counsel’s own due diligence. “Where the evidence is equally

accessible or inaccessible to both the Commonwealth and the

defense, the defense cannot use the discovery rules against the

Commonwealth for its failure to produce the evidence.” See

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[Santos, 176 A.3d at 883] (citing Commonwealth v. Dent, 837

A.2d 571, 585 (Pa. Super. 2003)). In spite of [Appellant’s] claims,

the record is clear that [Appellant] was provided with

documentation months before trial that Lyons, Washington, and

Jones were [Appellant’s] intended targets, that a confrontation

occurred between young men from Pottstown and Norristown

before the shooting, and that Jones’ mother saw an Impala circling

the block before the shooting. The only “new” information not

previously disclosed was that Lyons, Washington, and Jones were

in the park near the shooting before Rosendary was shot.

[Appellant’s] claim that Lieutenant Dillon had a duty to

memorialize the Lyons oral statement lacks merit. In

Commonwealth v. Small, 741 A.2d 666 (Pa. 1999), police

officers failed to record oral conversations with witnesses that

occurred before the witnesses were interviewed on tape in a

murder and rape investigation. Small, 741 A.2d at [676]. The

appellant in Small argued that the Commonwealth was required

to produce evidence of these oral conversations to the defense.

Id. The Court held that the police had no duty to reduce to writing

an interview with a potential witness. See id. at 676-77 . . . .

[Appellant’s] discovery violation claim lacks merit and does not

warrant a new trial.

Trial Ct. Op. at 23-25 (some record citations omitted)

We agree with the trial court’s conclusion that the police were not

required to document Lyons’ statement, particularly because he only agreed

to speak to the detectives “off the record.” See Small, 741 A.2d at 676-77.

Additionally, as noted by the trial court, the Commonwealth disclosed material

to Appellant prior to trial indicating that the police considered Lyons,

Washington, and Jones as the intended targets of the shooting. See Trial Ct.

Op. at 23-24; see also N.T. Post-Sentence Hr’g, 5/10/19, at 25, 35.

Appellant presented a justification defense at trial, i.e., that although he was

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involved in the August 8, 2017 shooting that wounded Rosendary, Appellant

was defending himself from individuals from Norristown who shot at him first.

We also agree with the trial court that, even if the Commonwealth

violated Rule 573 by failing to disclose additional information regarding Lyons’

off-the-record interview with detectives, Appellant was aware that the police

believed that Lyons, Washington, and Jones were the intended targets of the

August 8, 2017 shooting based on other material the Commonwealth had

already disclosed. See Trial Ct. Op. at 25. Appellant had the opportunity to

investigate these individuals further and to call them as witnesses at trial.

Based on the evidence presented at trial and at the post-sentence hearing,

we conclude that Appellant has failed to demonstrate that he was prejudiced

by the Commonwealth’s failure to disclose the Lyons interview. See Causey,

833 A.2d at 171. Therefore, we discern no abuse of discretion by the trial

court in denying Appellant’s request for a new trial based on a violation of Rule

573, under either subsection (B)(1) or (B)(2). See Santos, 176 A.3d at 882.

Brady Violation

In his second issue, Appellant claims that the Commonwealth violated

Brady by withholding Lyons’ identity as a witness. Appellant’s Brief at 20-23.

Appellant argues that Brady extends to the evidence in the files of police

agencies. Id. at 20-21 (citing Kyles v. Whitley, 514 U.S. 419, 438 (1995)).

Appellant contends that he is entitled to a new trial because there is a

reasonable probability that if information about Lyons’ interview with police

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had been disclosed to him, the outcome of his trial would have been different.

Id. at 22.

The Commonwealth responds that Appellant has failed to prove the

prongs of a Brady violation. Commonwealth’s Brief at 36-45. Specifically,

the Commonwealth contends that Appellant did not explain how the verbal

exchange between Appellant’s group and Lyons’ group forty-five minutes

before the shooting of Rosendary was material to Appellant’s justification

defense. Id. at 41. The Commonwealth argues that Appellant cannot satisfy

the third prong of Brady by asserting that there was a mere possibility that

the undisclosed information might have helped his defense. Id. at 41-42.

The Commonwealth also contends that even if Appellant had known about

Lyons’ interview with the police, this would not have affected the outcome of

the trial because of the abundance of evidence against Appellant. Id. at 42-

44.

Initially, we note that a claim that the trial court erred in denying

Appellant’s request for a new trial based on a Brady violation “presents a

question of law, for which our standard of review is de novo and our scope of

review is plenary.” Commonwealth v. Bagnall, 235 A.3d 1075, 1084 (Pa.

2020) (citation omitted).

We have explained:

To succeed on a Brady claim, a defendant must show that: (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 defendant carries the burden to

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prove, by reference to the record, that evidence was withheld or

suppressed by the prosecution. Additionally, the evidence at issue

must have 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.

* * *

Brady does not require the disclosure of information that is not

exculpatory but might merely form the groundwork for possible

arguments or defenses, nor does Brady require the prosecution

to disclose every fruitless lead considered during a criminal

investigation. The duty to disclose is limited to information in the

possession of the government bringing the prosecution, and the

duty does extend to exculpatory evidence in the files of police

agencies of the government bringing the prosecution. Brady is

not violated when the appellant knew or, with reasonable

diligence, could have uncovered the evidence in question, or when

the evidence was available to the defense from other sources.

Commonwealth v. Sandusky, 203 A.3d 1033, 1061-62 (Pa. Super. 2019)

(citations omitted and formatting altered).

“[A] reasonable probability of a different result is established when the

government’s suppression of evidence undermines confidence in the outcome

of the trial.” Commonwealth v. Chamberlain, 30 A.3d 381, 409-10 (Pa.

2011) (citations omitted and formatting altered). “In engaging in this

analysis, a reviewing court is not to review the undisclosed evidence in

isolation, but, rather, the omission is to be evaluated in the context of the

entire record.” Id. at 410 (citation omitted).

Following our review of the record, the parties’ briefs, and the well-

reasoned conclusions of the trial court, we affirm on the basis of the trial

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court’s opinion with respect to Appellant’s Brady claim. See Trial Ct. Op. at

26-28. Specifically, we find that the trial court properly concluded that

Appellant failed to act with reasonable diligence to investigate Lyons and the

other individuals police identified as the intended targets, to determine if they

had useful information about the night of the shooting. See id. at 26; see

also Sandusky, 203 A.3d at 1061-62. Additionally, we agree with the trial

court that in light of the evidence presented at trial, Appellant failed to

establish prejudice. See Trial Ct. Op. at 27-28; see also Chamberlain, 30

A.3d at 409-10; Sandusky, 203 A.3d at 1061-62.

Appellant’s Application for Remand

Finally, we address Appellant’s application to remand the matter for an

evidentiary hearing based on after-discovered evidence. See App. for

Remand, 2/22/21. Therein, Appellant claims that his counsel obtained a copy

of the Norristown Police Department’s written policy regarding witness

interviews in connection with another matter. Id. at ¶ 12. Appellant asserts

that this policy contradicts Lieutenant Dillon’s testimony at the post-sentence

motion hearing. Id. at ¶¶ 13-16. Appellant intends to call Lieutenant Dillon

and Assistant District Attorney Kristen Kemp as witnesses at the evidentiary

hearing. Id. at ¶ 17. Appellant states that he will use this document to prove

that the Norristown detectives who investigated the instant shooting failed to

follow their department’s internal policies, which caused their failure to

investigate rival gang members as possible suspects for the shooting. Id. at

¶¶ 18-20. Appellant also intends to use the policy to establish that Lieutenant

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Dillon committed perjury, but denies that the evidence is being offered for

impeachment purposes. Id. at ¶¶ 21, 24-25. Appellant asserts that this

evidence would likely produce a different result at trial. Id. at ¶ 22.

The Commonwealth responds that Appellant cannot satisfy the four

prongs of the standard for granting a new trial based on after-discovered

evidence because the evidence Appellant is relying on is being offered mainly

for impeachment purposes. Ans. to App. for Remand, 2/23/21, at 4-6 (citing

Commonwealth v. Pagan, 950 A.2d 270, 292 (Pa. 2008)). The

Commonwealth further argues that the policy does not show that the officers

failed to follow procedure because the policy states that officers are to

document interviews “whenever possible.” Id. at 6 (record citation omitted).

The Commonwealth contends that it was not possible for the officers to

document their interview with Lyons because Lyons only agreed to speak to

the officers “off the record.” Id. at 7. Lastly, the Commonwealth asserts that

this evidence is not of such a nature and character that a different outcome is

likely because of the overwhelming evidence of guilt presented at trial. Id. at

7-8.

Pennsylvania Rule of Criminal Procedure 720(C) provides that “[a] post-

sentence motion for a new trial on the ground of after-discovered evidence

must be filed in writing promptly after such discovery.” Pa.R.Crim.P. 720(C).

The comment to Rule 720 states that a claim of “after-discovered evidence

discovered during the direct appeal process must be raised promptly during

the direct appeal process, and should include a request for a remand to the

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trial judge.” Pa.R.Crim.P. 720 cmt; see also Commonwealth v. Rivera,

939 A.2d 355, 358-59 (Pa. Super. 2007) (remanding for an evidentiary

hearing based on claim of after-discovered evidence first raised on appeal).

When a defendant raises a claim of after-discovered evidence for the

first time on direct appeal and requests a remand to the trial court for an

evidentiary hearing, this Court must determine whether the defendant has

met the pleading requirements for an evidentiary hearing under Rule 720(C).

See Commonwealth v. Heaster, 171 A.3d 268, 274 (Pa. Super. 2017).

Specifically, we must determine if the defendant has articulated how the

evidence he intends to present at a hearing would satisfy the after-discovered

evidence test. Id. at 275; see also Commonwealth v. Castro, 93 A.3d

818, 828 (Pa. 2014) (explaining that a defendant must “clearly articulate in

his motion what evidence he would present to meet the [after-discovered

evidence] test”).

[A]s our Supreme Court has explained, to warrant an evidentiary

hearing on a claim of after-discovered evidence, the request must,

at the very least, “describe the evidence that will be

presented at the hearing. Simply relying on conclusory

accusations . . . is insufficient to warrant a hearing.”

[Castro, 93 A.3d at 827]. “[T]he hearing is for the presentation

of evidence, not the potential discovery of evidence. An

evidentiary hearing . . . is not meant to function as a fishing

expedition for any possible evidence that may support some

speculative claim[.]” [Id. at 827-28].

Heaster, 171 A.3d at 273-74 (formatting altered and emphasis added).

To establish an after-discovered evidence claim, a petitioner must prove

by a preponderance of the evidence, the following:

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J-A05019-21

(1) the evidence could not have been obtained before the

conclusion of the trial by reasonable diligence; (2) the evidence is

not merely corroborative or cumulative; (3) the evidence will not

be used solely for purposes of impeachment; and (4) the evidence

is of such a nature and character that a different outcome is likely.

At an evidentiary hearing, an appellant 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.

Rivera, 939 A.2d at 359 (citation omitted).

Turning to the instant application for remand, Appellant does not

identity when he first came into possession of the witness interview policy, he

also does not explain why he could not have obtained the policy before the

conclusion of the trial by reasonable diligence. Appellant merely states that

his counsel obtained the policy as part of another matter. See Pa.R.Crim.P.

720(C) (providing that a claim of “after-discovered evidence discovered during

the direct appeal process must be raised promptly”); see also Rivera, 939

A.2d at 359 (the first prong of the after-discovered evidence test is that the

“the evidence could not have been obtained before the conclusion of the trial

by reasonable diligence”).

Assuming, arguendo, that Appellant acted promptly and with reasonable

diligence in obtaining the policy and raising his claim with this Court, he has

not met the other pleading requirements for an evidentiary hearing under Rule

720. Appellant asserts that he is not offering the policy for impeachment

purposes, yet he argues that Lieutenant Dillon perjured himself by denying

that such a policy existed. See Rivera, 939 A.2d at 359 (reiterating that

after-discovered evidence may not be used solely for purposes of

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impeachment). Further, Appellant asserts that at the hearing, he will show

that the detectives failed to follow their department’s witness interview policy

by not documenting their interview with Lyons. Appellant argues that this

lack of documentation resulted in the police failing to investigate whether rival

gang members were present at the Rosendary shooting. Appellant claims that

the deficient police investigation deprived him of evidence that would have

supported his claim of self-defense. However, Appellant has not identified any

evidence, other than the witness interview policy, that he intends to present

at the hearing to prove that the investigation was defective. See Castro, 93

A.3d at 828 (a defendant must “articulate in his motion what evidence he

would present” at an evidentiary hearing). We conclude that Appellant’s

application relies on conclusory allegations, which do not establish the proper

basis for granting an evidentiary hearing. See id., at 827. Essentially,

Appellant requests an evidentiary hearing in order to develop his claims that

the police could have uncovered additional evidence placing rival gang

members at the scene of the Rosendary shooting. See Heaster, 171 A.3d at

275 (stating that a motion raising a claim of after-discovered evidence “is not

to serve as a preemptive means of securing a hearing that will itself comprise

the investigation”); see also Castro, 93 A.3d at 828 (explaining that an

“evidentiary hearing is not meant to function as a fishing expedition”).

Based on our review of Appellant’s application for remand, we conclude

that Appellant has not satisfied the pleading requirements for an evidentiary

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J-A05019-21

hearing under Rule 720, and we discern no basis to remand this matter to the

trial court for an evidentiary hearing. See Heaster, 171 A.3d at 274-75.

Legality of Sentence

We also address the legality of Appellant’s sentence, which this Court

may raise sua sponte. See Commonwealth v. Pi Delta Psi, Inc., 211 A.3d

875, 889 (Pa. Super. 2019). Pursuant to 18 Pa.C.S. § 906, “[a] person may

not be convicted of more than one inchoate crime of attempt, solicitation, or

conspiracy for conduct designed to commit or to culminate in the commission

of the same crime.” A Section 906 violation goes to the legality of the

sentence. See Commonwealth v. Jacobs, 39 A.3d 977, 982 (Pa. 2012)

(plurality); see also Commonwealth v. Cooke, 492 A.2d 63, 70 n.3 (Pa.

Super. 1985) (addressing Section 906 violation sua sponte).

The issue of whether a sentence is illegal is a question of law;

therefore, our task is to determine whether the trial court erred

as a matter of law and, in doing so, our scope of review is plenary.

Additionally, the trial court’s application of a statute is a question

of law that compels plenary review to determine whether the court

committed an error of law.

Commonwealth v. Williams, 871 A.2d 254, 262 (Pa. Super. 2005) (citations

and quotation marks omitted).

The courts of this Commonwealth have interpreted the term “convicted”

as used in Section 906 “to mean the entry of a judgment of sentence, rather

than a finding of guilt by the jury.” Jacobs, 39 A.3d at 983 (citing, inter alia,

Commonwealth v. Grekis, 601 A.2d 1284, 1295 (Pa. Super. 1992)).

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In Commonwealth v. King, 234 A.3d 549 (Pa. 2020), the defendant

argued that Section 906 prohibited the trial court from imposing sentences for

both attempted murder and conspiracy to commit murder where the object of

those offenses was a single victim. King, 234 A.3d at 566-67. Our Supreme

Court found “that [defendant] entered into one agreement with his co-

conspirator to murder [the victim] and, because he failed in his attempt to do

so, [defendant] could not be sentenced to serve separate terms for the

inchoate crimes of conspiracy and attempt.” Id. at 568. Our Supreme Court

explained that “[b]y enacting Section 906, the General Assembly declared that

where a defendant tries to achieve a result – in this case, murder – but fails

to do so, he may only be punished once in the absence of distinct criminal

objectives.” Id. at 572. The King Court vacated the defendant’s consecutive

sentences for attempted murder and conspiracy to commit murder. Id.; see

also Cooke, 492 A.2d at 70 (vacating concurrent sentence for conspiracy to

commit robbery where defendant had also been sentenced for attempted

robbery where the two offenses were designed to commit the same crime).

Here, the trial court imposed concurrent sentences of twenty to forty

years’ imprisonment for attempted murder and conspiracy to commit murder.

However, both crimes had the same object: to kill Kendall Rosendary.

Therefore, Appellant’s sentence for conspiracy to commit murder is illegal

because it violates 18 Pa.C.S. § 906, and it must be vacated. See King, 234

A.3d at 572; Cooke, 492 A.2d at 70.

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Because the trial court imposed concurrent sentences, our disposition

does not upset the trial court’s overall sentencing scheme, therefore we need

not remand. See Commonwealth v. Lomax, 8 A.3d 1264, 1268-69 (Pa.

Super. 2010); Commonwealth v. Thur, 906 A.2d 552, 569-70 (Pa. Super.

2006).

For these reasons, we conclude that the trial court did not err in denying

Appellant’s request for a new trial. Further, Appellant is not entitled to a

remand for an evidentiary hearing to determine if a new trial is required based

upon after-discovered evidence. In sum, we affirm Appellant’s convictions,

but vacate the sentence for conspiracy to commit murder, and we affirm the

judgment of sentence in all other respects.

Judgment of sentence affirmed in part and vacated in part as to

sentence for conspiracy to commit murder only. Appellant’s application for

remand denied.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/6/2021

- 27 -

Circulated 08/30/2021 09:45 AM

Opinion

COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

.....

COMMONWEALTH OF PENNSYLVANIA CP-46-CR-0006720-2011=

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JAHLEEL C. DAVIS 1964 EDA 2019

OPINION N

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HAAZ, J. December 27, 2019

INTRODUCTION

Defendant, Jahleel Davis, has appealed the court's order dated June 10, 2019 which

denied his post-sentence motion.

This case arose from the shooting of Kendall Rosendary on August 8, 2017 in

Norristown, Pennsylvania. Defendant Jahleel Davis and co-defendant Jamal Jones were arrested

shortly after the shooting. Criminal complaints were filed against Davis and Jones charging them

with attempted murder and related crimes on August I 0, 2017.

On January 17, 2018, the Davis prosecution was consolidated with Commonwealth v.

Jamal Jones, Docket No. CP-46-CR-0006906-2017. On December 21, 2017, Defendant filed an

omnibus pre-trial motion that included a motion to suppress evidence pertaining to the

prosecution against him only. On September 28, 2018, Defendant filed a supplemental omnibus

pre-trial motion. Evidentiary hearings were held on Defendant's motions on October 3, 2018 and

October 16, 2018. The motion was denied by memorandum and order dated October 26, 2018.

A jury trial commenced on October 26, 2018. On November 2, 2018, Defendant was

convicted by a jury of attempted murder, conspiracy to commit attempted murder, aggravated

assault, conspiracy to commit aggravated assault and possession of an instrument of a crime. On

I

January 18, 2019, Defendant was sentenced to twenty (20) to forty (40) years imprisonment for

the attempted murder conviction, a concurrent sentence of twenty (20) to forty (40) years for the

conspiracy to commit murder conviction, and a consecutive sentence of one (I) to two (2) years

for the possession of an instrument of crime conviction. Defendant's conviction for aggravated

assault merged with his attempted murder conviction and his conviction for conspiracy to

commit aggravated assault merged with his conspiracy to commit murder conviction. Defendant

appeals from his judgment of sentence.

On January 25, 2019, Defendant filed a post-sentence motion for an evidentiary hearing

and new trial. On February 28, 2019, Defendant filed a supplemental post-sentence motion for

the production of witnesses. A post-trial conference was held on March 21, 2019. An order

denying the motion for the production of witnesses was filed on March 25, 2019. The court held

evidentiary hearings on the post-sentence motion on May 10, 2019 and June 3, 2019. The court

denied Defendant's post-sentence motion on June 10, 2019.

On July 9, 2019, Defendant filed a notice of appeal to the Superior Court. On July 10,

2019, the court ordered Defendant to file a concise statement of errors complained of on appeal

within twenty-one (21) days pursuant to Pa.R.A.P. 1925(b). On July 31, 2019, Defendant filed

the following concise statement of errors complained of on appeal, summarized below:

I. Defendant alleges the court erred by denying his post-sentence

motion for an evidentiary hearing and new trial, alleging Brady

and discovery violations, and by denying his post-sentence

motion to produce witnesses. See Concise Statement of Errors

Nos. 1-3.

2. Defendant alleges the court erred in overruling Defendant's

objections to the scope of the expert testimony of Edward

Schikel and Dirk Boughter. See Concise Statement of Errors

Nos. 4, 9.

2

3. Defendant alleges the court erred in overruling Defendant's

objection to witness Andrew Licwinko's testimony for

violation of Pa.R.Crim.P. 573. See Concise Statement of Errors

No. 5.

4. Defendant alleges the court erred in denying Defendant's

request for a mistrial following prejudicial statements made by

witness David Mazza. See Concise Statement of Errors No. 6.

5. Defendant alleges the court erred in denying Defendant's

request for the entirety of a prior recorded statement to be

introduced at the time of Commonwealth's questioning of

Defendant pursuant to Pa.R.E. I 06. See Concise Statement of

Errors No. 7.

6. Defendant alleges the court erred in overruling Defendant's

objection to the authenticity of Facebook records introduced by

witness Felicia Mickie. See Concise Statement of Errors No. 8.

7. Defendant alleges the court erred in denying Defendant's

request for a mistrial following testimony by witness Dirk

Boughter that he did not preserve notes and diagrams he

created of the crime scene. See Concise Statement of Errors

No. 10.

8. Defendant alleges the court erred in denying Defendant's

pretrial motions for the suppression of phone material and

Defendant's statements made to police after his arrest. See

Concise Statement of Errors Nos. 11, 13.

9. Defendant alleges the court erred in denying Defendant's

motion for a Frye hearing pursuant to Pa.R.E. 702. See Concise

Statement of Errors No. 12.

I 0. Defendant alleges the court erred m granting the

Commonwealth's pretrial motion for the introduction of

evidence of prior bad acts in violation of Pa.R.E. 403 and 404.

See Concise Statement of Errors No. 14.

EVIDENCE AT TRIAL

The shooting which occurred in this case was part of the aftermath of shootings which

occurred between rival groups of young men in Pottstown and Norristown. Lieutenant Kenneth

Lawless of the Norristown Police Department was involved in the investigation of shootings that

occurred in Norristown in the summer of 2017 when Jordan Scott was murdered and

Taye Wynder was shot and injured. T2 139-140. Lt. Lawless testified that there were a series of

shootings in Norristown and Pottstown that were believed to be part of an ongoing Norristown

3

versus Pottstown feud. TS I 083-1085. Kendall Rosendary, the victim in this case, was an

innocent bystander in what was intended to be the shooting of a member of the rival Norristown

group in retaliation for the murder of Jordan Scott, a member of the Pottstown group.

Detective William Mitchell, Jr. was a detective with the Montgomery County District

Attorney's Office at the time of the subject events. T4 765. Detective Mitchell was involved in

the investigation surrounding the murder of Jordan Scott, also known as "Bud," which occurred

on July 6, 2017. Ibid. At that time, Jordan Scott was residing with Taye Wynder in Pottstown.

T4 765-766. William Wilson and Isaiah Freeman were from Norristown. T4 766-767. Both were

convicted of the murder of Jordan Scott. T4 766. Freeman was convicted of first-degree

murder and Wilson was convicted of third-degree murder. T4 769.

Corporal Brian Graham was a police officer with the Norristown Police Department at

the time of the subject events. T3 435. On August 8, 2017, at approximately 11 :00 p.m.,

Corporal Graham was patrolling in Norristown in the 500 and 600 block of Cherry Street when

he received a report of a possible disturbance by a caller who identified herself as Chris

Williams. Ibid. Based on Ms. Williams' information, Corporal Graham sent out a dispatch about

individuals from Pottstown possibly being in Norristown to retaliate. T3 436.

Lt. Lawless and other officers were dispatched to the area of the 500, 600 and 700 blocks

of Cherry Street in Norristown, Montgomery County shortly after 11 :00 p.m. on August 8, 2017.

T2 157-158. At approximately 11:33 p.m., while on the 600 block of Cherry Street, Lt. Lawless

heard what he thought were fireworks. T2 158-159. After exiting his car at 719 Cherry Street, a

bullet went through the trees just above his head and he realized he was hearing gunshots. Ibid.

He returned to his vehicle and saw a silver Chevy Impala "further up on the next block leaving

the scene at a high rate of speed." T2 159.

4

Lt. Lawless notified other officers that the fleeing vehicle was travelling north on Cherry

Street as he kept sight of the vehicle. T2 161. Officer Jason Hoover turned his vehicle from Elm

Street onto Cherry Street to block the path of the fleeing vehicle. Ibid. Lt. Lawless drove toward

the Impala. T2 161- 162. He approached the blocked vehicle and saw three occupants of the

Impala abandon the vehicle and flee on foot. T2 162-163. The occupants appeared to be

African-American and were wearing dark hoodies, one of which had an Adidas emblem. T2

164. The occupants hopped a fence and ran through the backyards of nearby houses. T2 162.

Police then set up a perimeter to prevent the suspects from escaping the area. T2 164-165.

Officer Hoover was in his vehicle on Swede Street near its intersection with Oak Street

when he heard gun shots. T3 319-321. Officer Hoover drove up Swede Street where it

intersected with Elm Street and turned left. T3 322. Lt. Lawless informed Officer Hoover by

radio that a silver Chevy sedan was pulling out of the area and travelling at a high rate of speed

north on Cherry Street. Ibid. Officer Hoover turned down Cherry Street to block the sliver

Chevy from leaving the area. Ibid. He observed three individuals get out of the Chevy and run

from the vehicle. T3 323. Two of the fleeing individuals were wearing dark-colored clothing,

one with a black hooded sweatshirt with a white Adidas logo on it. T3 324. The third individual

was wearing lighter-colored clothing with a grayish top. Ibid.

Lt. Lawless and other officers established a perimeter and continued pursuit of the

suspects while Officer Hoover remained behind and secured the abandoned vehicle. T3 334.

The front passenger door of the abandoned vehicle was still open and the passenger's side of the

car had bullet holes in it. Ibid. Located in the back seat of the vehicle in plain view was a black

revolver. Ibid. The revolver was a .38 Special caliber that contained fired cartridge casings in its

cylinder. T4 784. Officer Hoover located a magazine for a .40 caliber Glock pistol in the lower

5

pocket of the front passenger door. T3 334-335. Officer Hoover recovered a small black cell

phone on the outside of the driver's side door. T3 336.

Officer Jeffrey Portock was with the Pottstown Police Department and the Montgomery

County SW AT West team at the time of the subject events. T3 424. Officer Portock was

attached to the K9 Unit and had a canine partner with specialized training to search and track the

suspects. T3 424-425. Officer Portock was on patrol in Pottstown when he received a dispatch

to Norristown for a canine assist. T3 425. Officer Portock and his canine partner tracked the

fleeing individuals using the scents from the abandoned Chevy Impala. T3 427-433. With the

1

assistance of his canine partner, Officer Portock located Defendant Jones and Taron Ebo-Wilson

hiding underneath the back porch of a house at 837 Swede Street in Norristown in the early

morning hours of August 9, 2017. T2170-71; T3 427-433;425.

Defendant Jones was discovered together with Taron Ebo-Wilson underneath the back

porch of the house located at 837 Swede Street. T2 169; 170-171. Ebo-Wilson was wearing a

gray sweatshirt. T3 389. Lt. Lawless performed a pat down search of Defendant Jones and

found the key to the abandoned Impala. T2 171-172. Defendant Jones told Lt. Lawless it was the

key to his Impala. T2 171. This key was matched to the Chevy Impala that had been abandoned

on Cherry Street. T2 171-172. A firearm was also recovered in the immediate area where

Defendant Jones and Taron Ebo-Wilson were hiding. T2 18 I. The firearm was a .40 caliber

Glock Model 27. T3 359.

1

Taron Ebo-Wilson was the third person in the Impala vehicle with Davis and Defendant and fled with Defendant.

He pied guilty to attempted murder and conspiracy to commit murder on October 12, 2018 arising from the

Rosendary shooting. Commonwealth v. Ebo-Wilson, Docket No. CP-46-CR-0006721-2017. He was sentenced to

undergo imprisonment for not less than 8 years nor more than 20 years in state prison pursuant to the negotiated plea

agreement.

6

Corporal Brian Graham located Defendant Davis in the backyard of 844 Cherry Street in

the early morning hours of August 9, 2017. T2 173; T3 435-36; T3 440. Lt. Lawless testified

that Davis was found next to a black hooded sweatshirt with an Adidas emblem on it. T2 173;

Ex. C- l 45a. A camouflage-printed mask was also recovered in the immediate area of Defendant

Davis. T2 179-180; T3 442-443. During the investigation the following day detectives

discovered a .45 caliber handgun in a bucket near where Defendant Davis was found. T3 581-

582. The gun had eight live rounds of ammunition in it. T4 658-659.

Officer Joshua Keenan of the Norristown Police Department was at the intersection of

Marshall and Cherry Streets in Norristown when he heard gunshots. T3 384. He received

information that an individual had been shot on Cherry Street and proceeded to that location to

render aid. T3 385. Upon encountering the victim of the shooting, Kendall Rosendary, Officer

Keenan observed that he had "multiple pentrating traumatic injuries to both his upper and lower

extremities" and he was "bleeding profusely." T3 385-387. Officer Keenan stated he had never

seen someone lose so much blood and survive. T3 387-388. No firearm or ammunition was

recovered from Rosendary. T3 437.

Lt. Lawless stayed at the site of the shooting on the 800 block of Cherry Street after Mr.

Rosendary was transported to a hospital for treatment. T2 166. He observed blood stains on the

sidewalk and multiple shell casings in the street. Ibid. There also appeared to be several strike

marks on the sidewalk where the sidewalk had been struck by bullets. T2 176-177. Several

bullets were later extracted from strike marks in nearby fences. T2 215. Corporal Graham

estimated that fired cartridge casings were located approximately five ( 5) to ten ( I 0) feet from

where Rosendary had collapsed on the sidewalk from his injuries. T3 439.

7

Kendall Rosendary was twenty-six (26) years old at the time of the shooting. T2 219.

He testified that he was shot fifteen times on August 8, 2017. 2 T2 219-220. Rosendary was shot

while walking on Cherry Street near the location of a playground and park at the intersection of

Cherry and Oak Streets. T2 220. Rosendary heard people yelling at him and he tried to look

back. T2 221. He saw a gun, tried to run and then realized he had been shot. T2 257. Rosendary

could not identify who shot him. T2 221. He continued to get shot after he fell to the ground. T2

222. Rosendary stated that he was not armed and did not fire a gun at any point. T2 224.

Rosendary was transported to Penn Presbyterian Hospital where he underwent numerous

surgeries before he was discharged the next month to a rehabilitation facility. T2 224-225; TS

1005. He then spent several more months at the rehabilitation facility. T2 225-226. Rosendary

was still having regular appointments for medical treatment approximately once every other

month at the time of trial and will likely require additional surgeries. T2 247. Rosendary stated

that he suffered from guns-shot wounds in almost every major area of his body. T2 226. As a

result of the injuries he suffered on August 8, 20 I 7, he can longer run or perform regular

exercise, and must use a colostomy bag. T2 227.

Rosendary was intubated while he was a patient at Penn Presbyterian Hospital. T2 228.

On August 14, 2017, after the intubation tube was removed from Rosendary's throat, he gave a

statement to Detectives David Mazza and Greg Henry while still in the hospital. T2 228-229.

Detective Greg Henry provided a summary of Rosendary's statement that Rosendary heard one

of the males call him a "bitch." T2 228-233. According to their summary, he told detectives he

saw three unknown males approach him and start shooting. T2 231-232. At trial, he recalled

2

The parties stipulated that the victim was treated at Penn Presbyterian Hospital from August 9, 2017 to September

13, 2017 where he was treated for 13 gunshot wounds, seven of which were entry wounds. lt was further stipulated

that the victim had multiple surgeries over the course of his commitment at the hospital and suffered serious bodily

injury. TS I 005.

8

thinking that it was actually more than three individuals. T2 232-233. He told detectives the

individuals shot him several more times as he was lying on the ground. T2 233. He stated the

individuals were black males, in their mid to late teens, and that they were all armed with

handguns. T2 234. The detectives' summary stated that Rosendary told them that two of the

shooters were wearing dark hooded sweatshirts, though Rosendary could not recall telling that to

detectives. Ibid.

On September 7, 2017, Rosendary gave a second statement to Detective Mazza and

Detective Steven Sowell. T2 235-237. Rosendary told detectives that on August 8, 2017, on the

800 block of Cherry Street, three men got out of a light-colored car and all three had guns and

shot him. T2 239-240. He said he was shot in his shoulder, stomach, arm, both thighs, hip,

knee, butt and foot. T2 241.

Rosendary told detectives that the shooters were young black males. T2 241-242. He

described the car that they were in as "light, like tan." T2 242. He said that he did not know

why they shot him and that he did not know them. Ibid. While in the hospital, Rosendary

provided police with a DNA sample. T2 246.

Detective Dirk Boughter was with the Montgomery County Detective Bureau in the

Major Crimes Unit at the time of the subject events. T3 510-511. The parties stipulated that

Detective Boughter qualified as an "expert in crime scene analysis." T3 511. Detective

Boughter was called to analyze the crime scene during the early morning hours of August 9,

2017. T3 513.

Detective Boughter testified that nine 9 millimeter fired cartridge casings, nine .40 caliber

fired cartridge casings and five .45 caliber fired cartridge casings were recovered from the crime

scene. T3 530. Five bullet fragments were also recovered from the crime scene. T3 531. The

9

.40 caliber cartridge casings matched the Glock 27 located near Defendant Jones and Ebo-

Wilson when they were apprehended. T4 665. However, detectives later learned that the .45

caliber handgun recovered near Defendant Davis in the backyard of 844 Cherry Street was not

the firearm that had fired the .45 caliber fired cartridge casings discovered at the scene of the

shooting. T3 582.

During his investigation, Detective Boughter discovered two strike marks on a white

Mazda SUV parked on the west side of Cherry Street just north of where the victim was shot. T3

538-540. There was also a bullet fragment between the Mazda's front wheel and the curb "as if

it had exited out of the hood and down." Ibid. There were strike marks and a recovered bullet

fragment on the fence post of the playground behind the area where the victim was found. T3

545; 548. No strike marks, indicative of return fire, were discovered on the opposite side of the

street. T3 569-570. There were also three strike marks observed on the passenger side of the

Chevy Impala. T3 571.

As part of his investigation, Detective Boughter collected twenty-three (23) fired

cartridge casings from the scene as well as multiple bullet fragments. T3 514-515. He testified

that the pattern of fired cartridge casings was consistent with how semi-automatic weapons expel

cartridge casings to the side of the weapon. T3 524-525; 529. Detective Boughter testified that

the pattern of the fired cartridge casings was consistent with the shooter having been in motion

while firing, specifically towards the direction of the victim and his direction of travel as

evidenced by the blood trail on the sidewalk. T3 565-569; T3 436-437. The fired cartridge

casings were inconsistent with having been fired or emptied from a revolver. T3 525.

Detective Boughter performed DNA swabs on the recovered firearms. T4 650-651. DNA

swabs were also performed on the .38 caliber revolver recovered from the Chevy Impala. T5

986. The parties stipulated that the DNA swabs taken from the trigger of the .40 caliber Glock 27

found near Defendant Jones and Ebo-Wilson contained a mixture from at least two individuals

and that it was greater than one million (1,000,000) times more likely that Taron Ebo-Wilson

was one of those individuals. T5 983-987; Ex. C-162; C-164. Further, the DNA swabs taken

from the grip of the .38 Special caliber revolver found in the back of Jones' Chevy Impala

contained a mixture from at least three individuals and was nineteen thousand six hundred sixty

(19,660) times more likely that Defendant Davis was one of those individuals. Ibid.

Detective Eric Nelson was a detective with the Montgomery County Detective Bureau at

the time of the subject events. T4 771. Detective Nelson was qualified to offer expert opinions

in the field of forensic firearms identification and analysis. T4 774. Detective Nelson testified

that some of the bullets and bullet fragments recovered at the crime scene had microscopic

characteristics that were consistent with having been fired from a .40 caliber Glock 27 like the

one recovered near Ebo-Wilson and Defendant Jones. T4 795-797. Other bullets and bullet

fragments that were recovered were consistent with having been fired from a .38 Special caliber

revolver like the one recovered in the back of the Chevy Impala. T4 800-801.

Detective Edward Schikel of the Montgomery County Detective Bureau was qualified to

offer expert opinions in the field of forensic crime scene analysis. T4 687. Detective Schikel

testified that the pattern of fired cartridge casings and strike marks observed at the crime scene

was consistent with shots being fired from the street in the direction of the sidewalk where the

victim was found. T4 699-700. He also observed strike marks on the passenger's side of the

Chevy Impala. T4 703-704.

11

Detective Schikel executed a search warrant for the Chevy Impala. T4 702; Ex. C-139.

Detective Schikel found identifications of Taron Ebo-Wilson and an individual named Clay

Jones within the vehicle. T4 707-708. Detective Schikel discovered several live .45 caliber

rounds as well as a .40 caliber magazine for a Glock pistol inside the vehicle. T4 715-716; 718.

A halloween mask was also recovered from inside the vehicle. T4 706.

Albert Lattanzi worked on this case as a forensic scientist with the Pennsylvania State

Police in the Harrisburg Regional Crime Lab. T3 401-402. He was qualified as an expert in the

field of forensic testing for gunshot and gunpowder residue. T3 404. Mr. Lattanzi performed

gunshot residue and gunpowder testing on samples collected from the black Adidas sweatshirt

found near Defendant Davis at the time of Davis' apprehension. T3 403; T3 410-411; T3 442.

Mr. Lattanzi testified to the presence of gunshot residue on the black Adidas sweatshirt,

consistent with firing a gun. T3 413-416.

Officer Andrew Licwinko was a police officer with the Pottstown Police Department at

the time of the subject events. TS 912-913. Officer Licwinko testified that he had previously

observed Defendant Davis and Defendant Jones in the Pottstown area. TS 923; 928. In

particular, he had seen them associating with Ahbayah Davila and other individuals who referred

to themselves as members of a group known as ATM. TS 923; 928. He testified that this group

changed its name to BOB, which stood for "Bud Gang Bitches," after the murder of Jordan

Scott. TS 923-924; I 046. Officer Licwinko personally observed some of the individuals with

whom Defendant Davis associated posting their membership in the group on social media. Ibid.

Others had "BOB" tattooed on their bodies. Ibid. He saw Defendant Jones at the preliminary

hearing of Ahbayah Davila on an unrelated matter. TS 925.

12

Detective Gregory Henry was a detective with the Montgomery County Detective Bureau

at the time of the subject events. TS I 006. Detective Henry reviewed the cell phone extractions

from the phones recovered outside the driver's side door of the Chevy Impala as well as in the

center console of the Chevy Impala. TS IO 13-14. He also reviewed the Facebook accounts of

Jamal Jones and Lee! Stacks. 3 TS 1014. On Defendant Davis' Facebook account under the

name "Lee! Stacks," there were several images that identified him as being a member of BGB.

TS I 043. The cell phone found outside the Chevy Impala contained photos and videos of

Defendant Jones, indicating the cell phone belonged to him. TS IO 14. In addition, a phone

number associated with that cell phone was the same phone number that Defendant Jones

provided police upon his arrest. TS 1014-1015.

Detective Henry reviewed the extraction from a third cell phone, an LG phone, that was

physically removed from Defendant Davis upon his arrest. TS 1015. The number associated

with this phone was nearly the same as the one Defendant Davis provided with some of the

numbers transposed in a slightly different order. TS 1016. This phone appeared to be linked to

the Lee! Stacks Facebook account. Ibid. There were several calls between Defendant Jones' and

Defendant Davis' phones, the last call being on the date of the shooting around 9:00 p.m. TS

I 017.

The cell phones contained numerous videos and images that depicted Jones and Davis in

possession of firearms. TS 1020-1030; 1033-1038. Some of these included images of firearms

that matched the caliber of fired cartridge casings recovered at the scene of the Rosendary

shooting. 1067-1073. Some of these images were dated shortly before the shooting and at least

one appeared to have been taken the same day. TS 1025-1026; 1032-1033. In one video

3

Defendant Davis was saved in Defendant Jones' contacts as "Leel," and Defendant Jones was saved in Defendant

Davis' phone as "Mal." T5 1017-1018.

13

extracted from Defendant Davis' phone, Defendant Davis identifies himself as being part of

BOB and repeatedly says "gang gang" while another individual is waving a gun at the camera.

TS 1029-1030. Images from Defendant Davis' phone, time stamped August 7, 2017, the day

before the shooting, showed multiple firearms on a person's lap. TS 1024-1026. One of the

images from Defendant Davis' phone, time stamped on the date of the shooting, showed a

revolver that resembled the revolver that was recovered from the backseat of Defendant Jones'

Impala. TS I 033; I 079. With respect to Defendant Jones' phone, there were a series of

photographs showing firearms on an individual's lap, one of them including an extended

magazine. TS 1033-35. Other images showed Defendant Jones with Ebo-Wilson. TS 1035. One

video retrieved from Defendant Jones' phone appears to be taken in Defendant Jones' Impala,

showing Ebo-Wilson and Defendant Jones, who referenced the word "gang." TS 1036-1037.

There were a number of Face book posts mourning the death of Jordan Scott. TS I 044-

1045. One of Defendant Davis' posts, created on July 7, 2017, the day after Jordan Scott was

murdered, expressed a desire to get revenge for Scott's death. Ibid. A post on Jordan Scott's

Facebook page from Defendant Davis states "Death is never a option or planned but revenge is."

Ibid. Two days later, Defendant Davis posted "RS, Bud gone, so the love is gone ... its war

now." TS 1048. On July 18, 2017, Defendant Davis posted "Losing Bud turned me to a

monster. The thought of losing another made me grind harder." TS 104 7. On August 7, 2017, the

day before Rosendary was shot, Defendant Davis and one "BOB Tone" message each other

through Facebook. TS 1145-1147. BOB Tone writes to Defendant Davis saying "Niggas who

kill Bud, his people" and Defendant Davis responds "Yeah, nigga wanna beef, grab bigger

guns." TS 1146-47.

14

Felicia Mickie was a Montgomery County Juvenile Probation Officer who was

supervising Defendant Davis in the summer of 2016. T3 492. During her supervision of

Defendant Davis, she learned that he associated with a group known as "ATM." T3 492-493.

She also had personal knowledge of other individuals who identified themselves as members of

ATM, which stood for "Addicted to Money." T3 493; 508. Defendant Davis and the other

members of this group were all from Pottstown. T3 494. Officer Mickie stated ATM changed

its name to BGB after the murder of Jordan Scott. Ibid. Officer Mickie had no knowledge of

Defendant Jones and whether he was a member of this group. T3 508-509.

Pursuant to her supervision, she obtained possession of Defendant Davis' cell phone. T3

493. Defendant Davis' messages were to and from individuals identified as members or

associates of ATM. T3 503. Defendant Davis' Facebook messages with Nathaniel Howard, also

known as Coke Boy Montana, stated "Get the drop. We can both slide. You know how I rock.

Mask up. Let's do it right." T3 503-505. Howard's response stated "When they mask up, they

coming for you[r] ice. When they bare face, they coming for your life." T3 505-506. Defendant

Davis responded, in part, by stating he had been "itching to catch another body." T3 506.

Defendant Davis testified at trial. TS 1088-1165. He testified that he was in Norristown

on August 8,2017 to meet a girl named Bree. TS 1089. After searching for Bree unsuccessfully,

Defendant Davis ran into Jamal Jones and Taron Ebo-Wilson. TS 1090. They attended a nearby

party and engaged in a confrontation after Davis said he was from Pottstown. TS 1091. All

three decided to leave the party. Ibid. Jamal Jones' car was their means of transportation out of

Norristown. Ibid.

15

After walking down the street for a few minutes, they noticed a group of people

congregating and coming down the street toward them. TS I 091-1092. They continued to walk

down the street, feeling nervous and scared, considering their prior confrontation at the party. TS

1092. Defendant Davis testified as follows: "And when we walked, somebody said, 'Yo.' And

when we turned around, in the motion of us turning around, we seen somebody raising their

gun." Ibid. He was unable to identify the person with the gun as Rosendary. TS 1120.

Defendant Davis started running. T5 1092; I 099-1100. After taking two or three steps, he heard

a gunshot. TS I 099-1100. After a pause, Defendant Davis removed a gun tucked underneath his

jacket near his hip and began shooting in the direction he heard gunfire. TS I 092; 1100.

Defendant Davis proceeded to run and shoot back at the same time. TS 1092. Defendant

Davis felt a bullet whiz past him while he ducked his head and continued shooting. Ibid.

Defendant Davis, Jones, and Ebo-Wilson reached Defendant Jones' car and Jones drove them

away from the shooting scene. TS 1092-1093. Police vehicles cut them off and they all

abandoned Jones' car and fled on foot. TS I 093. Defendant was caught hiding in the backyard

of a property in Norristown several hours later. T2 173. Ibid.

Defendant initially told police he had nothing to do with the shootings, even though he

admitted at trial he shot a firearm multiple times. TS 1127-1128. Defendant Davis explained

that he ran because he was just involved in a shooting, had a gun on him, and was afraid of being

arrested. Defendant Davis said that he did not recognize Rosendary in the courtroom, and did

not know who he was when firing towards him. TS 1103-04. He had seen Rosendary in jail a few

times, but never knew who he was. TS 1104.

Defendant Davis explained the Norristown versus Pottstown feud. TS 1104-1107. The

feud involved two individuals, one of them being Jordan Scott, fighting over a female whom

16

Defendant Davis did not personally know. TS 1105-1106. He testified Jordan Scott was not his

only good friend who died that summer. TS 1104-1105. He testified that he was the only one

with a connection to Jordan Scott and Jones did not know Jordan Scott to his knowledge. TS

1107. Defendant Davis further testified he believed that neither Jones nor Taron Ebo-Wilson

had a history involving illegal firearms, unlike himself. TS 1109-1110. He testified his

inflammatory remarks with respect to his conversation with BGB Tone and his statements about

"masking up" referenced music he listens to. TS 1108-1109.

LEGAL ANALYSIS

1. Post Sentence Motion for Evidentiary Hearing and New Trial

Defendant claims the court erred by denying the Defendant's post sentence motion for an

evidentiary hearing and a new trial. Defendant's motion included the following grounds for

granting a new trial: a discovery violation pursuant to Pa.R.Crim.P. 573, violation of defendant's

due process rights to exculpatory evidence, and the discovery of post-trial evidence.

Defendant's sentencing hearing was conducted on January 18, 2019. The Commonwealth

called Lieutenant Todd Dillon from the Norristown Police Department as a witness. N.T.

Sentencing 15. Lieutenant Dillon testified about the violent conflict between individuals from

Pottstown and Norristown and how it affected public safety concerns in Norristown. N.T.

Sentencing 16-22. Lt. Dillon testified that Tyrique Lyons told police that Haj Washington,

Elijah Jones and Tyrique Lyons were the intended targets of the shooting on August 8, 2017.

N.T. Sentencing 22. On cross examination, Lieutenant Dillon testified that the intended victims

and Defendant had a confrontation approximately forty-five minutes prior to the Rosendary

shooting where "(t]here was some back and forth between ... Norristown people and Pottstown

people ... " N.T. Sentencing 27. After the confrontation, the three men went to the Cherry Street

17

- - - - - - - - - - - - - - - - - - - - - - --- -

Park to hide. N.T. Sentencing 30. Lieutenant Dillon testified about the confrontation between the

three men and Defendant as follows:

Q: Can you tell me exactly what happened?

A: They had a confrontation prior on the 500 block of Cherry

Street with people from Pottstown. There were words exchanged

and then they went and hid out in the park, Cherry Street Park, saw

the car come by that they associated with the Pottstown people

hunting them. They fled the park. Then within a few minutes of

them fleeing the park Mr. Rosendary was shot.

N.T. Sentencing 30.

Q: So it's fair to say that the only reason why you knew that this

this was a shooting of a mistaken innocent person is because the

alleged intended victims said that they knew that there was a car

from Pottstown that came through and that when they came back

someone was laying on the floor shot, correct?

A: I didn't say they came back. I think you're a little - no. I know

Mr. Rosendary. I've known him my entire career, all right. What

we gathered afterwards - as we work the case, that's one thing.

What we gathered afterwards - because we didn't get to speak to

those defendants or those people - they were what they thought

were the intended targets until maybe two or three weeks after this

case. So, like, you know after Kendall was shot.

You know, they didn't witness anything. They just had an

idea that they were - you know, that they were targeted. So the

time frame was correct. So I know Kendall Rosendary wouldn't be

involved in anything like that. I've known him and his family for

thirty-one years.

N.T. Sentencing 31-32.

Defendant claimed Lieutenant Dillon's testimony included "new" information (the fact

that the three intended targets had a confrontation with Defendant approximately forty-five

minutes prior to the shooting, were present at the park before the shooting, saw a Pottstown

vehicle go by, and fled the park) which had not been provided to Defendant in discovery. N.T.

Sentencing 27; See Def.'s Post Sentence Motion for Evidentiary Hearing and New Trial at 6-8.

18

The Defendant subsequently filed a post-sentence motion for an evidentiary hearing and new

trial on January 25, 2019.

Based upon Defendant's claim that the Commonwealth failed to disclose Lyons'

unrecorded and unmemorialized statement to the police, the court issued an order dated February

14, 2019 directing the Commonwealth to produce the following:

a) Any and all reports or summaries of statements by Tyrique Lyons, Haj

Washington, and Elijah Jones to Lieutenant Dillon and all other law

enforcement personnel;

b) Documentation identifying when all said reports, statements and/or summaries

were provided to Defense counsel; and

c) If no said reports, statements and/or statements were made arising from law

enforcement's interaction with Tyrique Lyons, Haj Washington and Elijah

Jones, the legal basis and criteria for why said statements, reports and/or

summaries were not created.

Order, 2/14/19.

The Commonwealth filed a response and supplement to the court's order on March 18,

2019 and March 21, 2019, respectively. A post-trial conference on the matter was held on March

21, 2019. The court also scheduled evidentiary hearings on May 10, 2019 and June 3, 2019 based

upon Defendant's claims that the Commonwealth committed discovery and/or Brady violations

and its claim that after-discovered evidence entitled Defendant to a new trial.

The post-sentence conferences and evidentiary hearings established the following. Lyons

spoke to the police approximately two weeks after the Rosendary shooting. N .T. Post-Trial

Conference, 3/21/19 at 4-5; N.T. Post-Sentence Mot. Hearing, 5/10/19 at 27. Jones and

Washington never spoke to the police. N.T. Post-Trial Conference, 3/21/19 at 4. Detective

Charles Leeds and Detective Stephen Sewell conducted an off the record conversation with

Lyons and Lieutenant Dillon was partially present. 4 N.T. Post-Sentence Mot. Hearing, 5/10/19 at

4

Detective Sowell testified that during the conversation with Lyons and Detective Leeds, Lieutenant Dillon came in

and out of the room. N.T. Post-Sentence Motion Hearing, 6/3/19 at 50.

19

20-22. During their conversation, Lyons confirmed he left the park 5 prior to the shooting and had

not seen the shooting take place. Id. at 22; N.T. Post-Sentence Mot. Hearing, 6/3/19 at 64. Lyons

told the police that he was on the block and turned the comer just as the shooting occurred. N.T.

Post-Sentence Mot. Hearing, 6/3/19 at 16. Lieutenant Dillon testified that "he [Lyons] basically

just kind of confirmed he hadn't seen anyone, he couldn't name anyone. He just believed, in

relevance to when they fled the park and then a short time later there were gunshots, he just

assumed they were after him again." N.T. Post-Sentence Mot. Hearing, 5/10/19 at 22. Detective

Leeds testified that "He [Lyons] very clearly told us he left prior to the shooting." N.T. Post-

Sentence Mot. Hearing, 6/3/19 at 64. Their conversation was not memorialized in writing as

Lyons only agreed to speak with the police off the record. N.T. Post-Sentence Mot. Hearing,

5/10/19 at 22. Lyons also told the police that he would not testify in court. Ibid. Lieutenant

Dillon stated that there are no policies regarding whether witness interviews need to be

memorialized in writing. Id. at 21-22.

a. Discovery Violation

Defendant alleges the Commonwealth failed to provide required discovery to defense

counsel pursuant to Pa.R.Crim.P. 573. The evidentiary hearings established that Detective

Sowell and Detective Leeds of the Norristown Police Department had an off-the-record

conversation with Lyons on August 22, 2017 where Lyons stated that he thought he was the

intended target of the shooting. N.T. Post-Sentence Motion Hearing, 6/3/19 at 5-6. Lyons told

the detectives that he was in the back of the park, saw a car circling the area, and left out of the

back of the park before the shooting started. Id. at 67.

The post-trial conference and evidentiary hearings established that the following

documents regarding Lyons, Jones, and Washington were provided to Defendant before trial.

5

The Rosendary shooting occurred on a sidewalk that abuts Cherry Park.

20

Defendant received a document titled "Norristown vs. Pottstown Gun Violence Timeline,"

marked as Commonwealth's trial exhibit 176. N.T. Post-Trial Conference, 3/21/19 at 8-9.

Number ten of the timeline states the following:

8/8/2017 Tues 2333 hrs

Inc#: 17-3256

Inc Type: Shooting

Location: 800 Blk Cherry

• Kendall Rosendary (Vic)

• Jahleel Davis (Arr)

• Jamal Jones (Arr)

• Taron Wilson (Arr)

• Possible mistaken identity, possible intended targets

Tyrique Lyons, Elijah Jones, Terrell Castile, Haj

Washington

Exhibit C-176.

Defense counsel stipulated at trial to receiving exhibit 176 before trial, stating: "Your Honor, I

will stipulate for the record that I received that [Commonwealth Exhibit 176] back sometime in

July, sometime in the early part of the summer." T4 638. In addition, the Commonwealth

provided Defendant with an email from Detective Sowell to Lieutenant Dillon regarding a

conversation with a witness named Sparkle Jones. N.T. Post-Trial Conference, 3/21/19 at 8-9.

The relevant portion of the email, marked as the Commonwealth's trial exhibit 177,6 provides as

follows:

I just got off the phone with SPARKLE JONES, mother of

ELIJAH JONES. She said that on Wednesday of last week, she

was sitting in a car on the comer of Oak and Green Street when she

noticed a Impala that kept circling the block. SPARKLE said that

at the Impala caught her attention, and at the time she believed that

it may be a family of the girl she had just fought the prior day. She

then went home and got a phone call from FATIMAH BOYD,

girlfriend of ELIJAH. FATIMAH wanted to know where ELIJAH

was because she got a phone call saying that some boys were

6

Defendant acknowledged receipt in discovery of this email on January 2, 2018. N.T. Post-Trial Conference,

3/21/19 at 6. Exhibit C-177 was marked as a trial exhibit, but was never admitted into evidence in the trial record.

Ibid.

21

driving around looking for "Reek" (TYREEK LYONS), "Haj"

(HAJ WASHINGTON), and "16" (ELIJAH JONES). SPARKLE

noted that ELIJAH was in the house, but she believes that he had

just been out with TYREEK and TERRELL CASTILE. SPARKLE

explained that about 6 minutes after she got the call from

FATIMAH, she heard the gun shots from Cherry Street.

Exhibit C-177.

In addition, Defendant was provided a statement from Christina Powell-Williams that detailed

the confrontation that occurred before the shooting. N.T. Post-Trial Conference, 3/21/19 at 8-9.

7

The relevant portion of her statement, marked as the Commonwealth's trial exhibit l 98, is as

follows:

Q: Can you tell us what happened last night that made you report

to the Norristown Police Department in person to get help?

A: Last night, around I 0:30 PM, I was parked in my truck, it's a

gold Expedition, with my cousin Trina Wright. I was parked on

Cherry Street, at Marshall Street, a couple doors down from the

Golden Dragon. I saw four boys, they looked like teenagers, they

passed my truck on Cherry walking towards Airy. They walked by

my passenger side, my windows were down. They seemed upset,

they appeared angry. Whatever they said, my cousin said to them,

"Be safe." They didn't respond, they kept walking. I just felt that

something wasn't right. We were still sitting in the truck talking,

and like three or four minutes later, another set of boys walk by the

passenger side of my truck, they come from behind and were

walking toward Airy. There were three boys walking in the front of

this pack, either three or four walking behind them, they all

appeared together. They all had black hoodies on, except for one

boy who had on a grey hoodie, they all had their hoodies up. They

stopped, they are behind my truck. I hear one boy say something

like "I am not going far down, I'm am trying to shoot from here." I

heard someone say something Pottstown, I heard the word

Pottstown really loud. They started walking past me towards Airy.

Q: What happens next?

7

Defendant acknowledged receipt of this statement in discovery on January 2, 2018. N.T. Post-Trial Conference,

3/21 /I 9 at 8. Exhibit C-198 was marked as a trial exhibit, but was never admitted into evidence in the trial record.

22

A: I couldn't park in the same spot so I park on Marshall Street. I

go back on Cherry Street where my cousin are her neighbors are. I

see a car, it was greenish, or gray, tinted windows, I initially

though it was police car but heard rap music and the car set up

higher so I figured it wasn't a police car. I have seen the car at least

five or six times circling Cherry Street, came different ways. The

car was all over the place ...

Exhibit C-198.

Defendant alleges that the Commonwealth never disclosed Lyons' unrecorded and un-

memorialized conversation with detectives referenced by Lieutenant Dillon at the sentencing

hearing, in violation of Pa.R.Crim.P. 573. Pa.R.Crim.P. 573 states the following regarding

disclosure by the Commonwealth:

(I) Mandatory. In all court cases, on request by the defendant ... the Commonwealth

shall disclose to the defendant's attorney all of the following requested items or

information, provided they are material to the instant case. The Commonwealth shall,

when applicable, permit the defendant's attorney to inspect and copy or photograph

such items.

a. Any evidence favorable to the accused that is material either to guilt or to

punishment, and is within the possession or control of the attorney for the

Commonwealth;

Contrary to Defendant's claims, the evidentiary hearings established the following

information was provided to defendant months prior to trial:

a) Kendal Rosendary was considered as a mistaken identity victim and the possible

intended targets were Tyrique Lyons, Elijah Jones, Terrell Castile, and Haj

Washington. Norristown v. Pottstown Gun Violence Timeline, Exhibit C-176.

b) Elijah Jones' mother, Sparkle Jones, provided a statement to police where she:

a. noticed an Impala circling the block,

b. received a phone call from her son's girlfriend that some boys were driving

around looking for her son and Haj Washington,

c. stated that her son was in the house when she received that call and believed

he had just been out with Tyrique Lyons and Terrell Castile, and

d. heard gunshots about six minutes after receiving that phone call. Email

regarding Sparkle Jones, Exhibit C-177.

c) Christina Powel-Williams provided a statement to police where she observed:

a. the green Impala circling Cherry Street five to six times,

b. groups of teenage boys walking the streets of Norristown where one group

appeared "upset" and "angry," and

23

c. one person from another group with hoodies stating, "I am not going far

down. I'm am trying to shoot from here." Powell-Williams Statement, Exhibit

C-198.

It is clear that the only "new" evidence not provided to Defendant was Lieutenant

Dillon's statement that Lyons, Jones, and Washington had a confrontation with defendant forty-

five minutes before the shooting and were hiding in the park before, not at the time, of the

shooting. Defendant claims a Rule 573 violation even though Lieutenant Dillon did not

memorialize the conversation with Lyons.

A claim of discovery violation is reviewed as follows:

If a discovery violation occurs, the court ... may enter any order it

deems just under the circumstances. The trial court has broad

discretion in choosing the appropriate remedy for a discovery

violation ... A defendant seeking relief from a discovery violation

must demonstrate prejudice. A violation of discovery "does not

automatically entitle appellant to a new trial." Rather, an appellant

must demonstrate how a more timely disclosure would have

affected his trial strategy or how he was otherwise prejudiced by

the alleged late disclosure.

Commonwealth v. Brown, 200 A.3d 986, 993 (Pa. Super. 2018) (citing Commonwealth v.

Causey, 833 A.2d 165, 171 (Pa. Super. 2003)) (citations omitted). Defendant claims he was

prejudiced by the late information because it "would have allowed us [the defense] to create a

plausible scenario of self-defense that we otherwise lacked." See N.T. Post Sentence Motion

Hearing at 69 (June 3, 2019). The Defendant had ample opportunity to develop the theory of his

case as he was aware of the other intended victims prior to trial. Defendant clearly knew from the

Norristown versus Pottstown timeline that Lyons, Washington, and Jones were "possible

intended targets" of the shooting. Exhibit C-176. The additional details provided by Lieutenant

Dillion could have been discovered by defense counsel's own due diligence. "Where the

evidence is equally accessible or inaccessible to both the Commonwealth and the defense, the

24

defense cannot use the discovery rules against the Commonwealth for its failure to produce the

evidence." See Commonwealth v. Santos, 176 A.3d 877, 883 (Pa. Super. 2017) (citing

Commonwealth v. Dent, 837 A.2d 571, 585 (Pa. Super. 2003)). In spite of Defendant's claims,

the record is clear that Defendant was provided with documentation months before trial that

Lyons, Washington, and Jones were Defendant's intended targets, that a confrontation occurred

between young men from Pottstown and Norristown before the shooting, and that Jones' mother

saw an Impala circling the block before the shooting. The only "new" information not previously

disclosed was that Lyons, Washington, and Jones were in the park near the shooting before

Rosendary was shot.

Defendant's claim that Lieutenant Dillon had a duty to memorialize the Lyons oral

statement lacks merit. In Commonwealth v. Small, 741 A.2d 666 (Pa. I 999), police officers

failed to record oral conversations with witnesses that occurred before the witnesses were

interviewed on tape in a murder and rape investigation. Small, 741 A.2d at 441. The appellant in

Small argued that the Commonwealth was required to produce evidence of these oral

conversations to the defense. Id. The Court held that the police had no duty to reduce to writing

an interview with a potential witness. See id. at 676-77 (finding that police's failure to record

oral conversations with potential witnesses was not a Brady violation). Subjecting the police "to

tape every conversation between police investigators and potential witnesses or to take detailed

notes of all activity on every investigation ... is not a realistic or necessary requirement to

impose on the police." Id. at 677.

Defendant's discovery violation claim lacks merit and does not warrant a new trial.

25

b. Brady Violation

The Defendant alleges the Commonwealth committed a Brady8 violation. The Defendant

must prove the following three requirements to succeed on a Brady claim: "(I) evidence was

suppressed by the prosecution; (2) the evidence, whether exculpatory or impeaching, was

favorable to the defendant; and (3) prejudice resulted." See Commonwealth v. Cousar, 154 A.3d

287, 301 (Pa. 2017) (citing Commonwealth v. Daniels, 104 A.3d 267, 284 (Pa. 2014)). "There is

no Brady violation when the appellant [the defense] knew or, with reasonable diligence, could

have uncovered the evidence in question, or when the evidence was available to the defense from

non-governmental sources." Commonwealth v. Paddy, 15 A.3d 431, 451 (Pa. 201 l); See

Commonwealth v. Rhodes, 54 A.3d 908, 914 (Pa. Super. 2012) (finding no Brady violation

where appellant failed to use reasonable diligence to uncover contact information and

whereabouts of witnesses who had potentially exculpatory information).

Here, Defendant knew the identity of the intended victims, but failed to use reasonable

diligence to interview or further investigate their whereabouts at the time of the shooting. The

information provided to Lieutenant Dillon, Detective Sowell, and Detective Leeds by Lyons was

accessible to the Defendant through non-governmental sources. Moreover, the police are under

no duty to reduce to writing every interview they conduct during the course of an investigation.

See Small, 741 A.2d at 676-77. The fact that the police's conversation with Lyons was not

reduced to writing does not amount to suppression of evidence. No evidence was suppressed by

the Commonwealth.

In order to establish prejudice, the suppressed evidence must be material to Defendant's

guilt or punishment, meaning "there is a reasonable probability that, had the evidence been

disclosed to the defense, the result of the proceeding would have been different." Commonwealth

8

Brady v. Maryland, 373 U.S. 83 (1963).

26

v. Tharp, 101 A.3d 736, 747-48 (Pa. 2014) (citing Kyles v. Whitley, 514 U.S. 419, 433-34 (2014);

See Commonwealth v. Natividad, 200 A.3d 11, 26 (Pa. 2019) ("The mere possibility that an item

of undisclosed information might have helped the defense, or might have affected the outcome of

the trial, does not establish 'materiality' in the constitutional sense."). The inquiry regarding

reasonable probability is "not whether the defendant would more likely than not have received a

different verdict with the evidence, but whether in its absence he received a fair trial, understood

as a trial resulting in a verdict worthy of confidence." Id. at 748 (citing Commonwealth v. Weiss,

986 A.2d 808, 815 (Pa. 2009)). Without the evidence regarding the details surrounding the other

intended victims, the evidence against the Defendant was overwhelming to sustain the jury's

verdict. Defendant posted on social media on several occasions his desire to get revenge for

Jordan Scott's murder, stating "Death is never a option or planned but revenge is." TS 1044-

1045. Other posts included Defendant characterizing himself as a "monster" after Jordan Scott's

death and wanting to "grab bigger guns" in retaliation. TS 1047, 1146-47. Defendant's cell

phone contained numerous videos and images showing Defendant's access to firearms. TS I 024-

1030; 1033. Images from Defendant's phone, time stamped August 7, 2017, the day before the

shooting, showed multiple firearms on a person's lap. TS 1024-1026. Another image from

Defendant's phone, time stamped on the date of the shooting, showed a revolver that resembled

the revolver that was recovered from the backseat of co-defendant Jones' Impala. TS I 033; I 079.

The revolver contained six fired cartridge casings in its cylinder. T4 783-84. Expert testimony

from Detective Nelson revealed that bullets and bullet fragments that were recovered from the

scene were consistent with having been fired from a .38 Special caliber revolver like the one

discovered in co-defendant Jones' Impala. T4 800-801. DNA evidence establishes the extremely

high likelihood of Defendant's culpability. DNA swabs taken from the grip of the .38 Special

27

caliber revolver found in the back of co-defendant Jones' car contained a mixture from at least

three individuals and it was nineteen thousand six hundred sixty (19,660) times more likely that

Defendant was one of those individuals. TS 983-987. Moreover, Defendant admitted to shooting

a revolver multiple times. TS 1128. Defendant fled, first in co-defendant Jones' car, and then on

foot. TS 1092-1093. Defendant was eventually found hiding in the backyard of a property in

Norristown. T2 173. Defendant received a fair trial in the absence of the additional details

provided by Lieutenant Dillion and did not suffer any prejudice.

The Defense contends that with the additional information provided by Lieutenant Dilion,

the "[ d]efense could have put forward plausible alternative suspects who may have possessed the

two missing firearms that were not recovered at the scene of the shooting." See Defendant's Post

Sentence Motion for Evidentiary Hearing and New Trial at 8. However, Brady does not "require

the disclosure of information 'that is not exculpatory but might merely form the groundwork for

possible arguments or defenses."' Paddy, l 5A.3d at 451 (citing Commonwealth v. Lambert, 884

A.2d 848, 856 (Pa. 2005)) (finding no Brady violation where the Commonwealth did not

disclose police reports appellant alleged "would have alerted trial counsel to the existence of an

alternative theory as to who killed [the victim] and why"). The fact that three other intended

victims had a confrontation with the Defendant prior to the shooting is not exculpatory

information and it supports the Commonwealth's theory that Defendant came to Norristown with

the intent to kill. The only new information not previously disclosed to Defendant was

Lieutenant Dillon's testimony (not reduced to writing) indicating that Lyons, Jones, and

Washington were in the park before the shooting began. The record in the case does not support

that any part of the three prong test under Brady has been established. Defendant's Brady

violation claim lacks merit.

28

c. After-Discovered Evidence

The Defendant claims the court erred in denying a new trial on the ground of after-

discovered evidence. A new trial on the basis of after-discovered evidence that is producible and

admissible is warranted if the evidence:

(I) could not have been obtained prior to the end of trial with the

exercise of reasonable diligence; (2) is not merely corroborative or

cumulative evidence; (3) is not merely impeachment evidence; and

(4) is of such a nature that its use will likely result in a different

verdict on retrial.

Commonwealth v. Lyons, 79 A.3d 1053, 1068 (Pa. 2013). Here, the evidence could have been

obtained by the defense with reasonable diligence prior to the end of trial. The defense knew the

identities of the intended victims but failed to interview or further investigate any further

information they may have had. Additionally, the evidence is merely corroborative. Defendant's

post-sentence motion acknowledges its corroborative nature: "The evidence would bolster and

corroborate from an independent source the Defendant's trial testimony that there was a face to

face confrontation between Norristown and Pottstown groups prior to the shooting." See

Defendant's Post Sentence Mot. for Evidentiary Hearing and New Trial at ,i 39. Lastly, this

alleged new evidence is highly unlikely to result in a different verdict if the case were retried. As

discussed previously in Part I(b ), Brady violation, the remaining evidence against the Defendant

is overwhelming. The evidence established Defendant's intention of coming to Norristown in

order to commit a revenge murder and does not warrant a new trial. See Lyons, 79 A.3d at 1069

(affirming trial court's denial of new trial for after-discovered evidence "given the overwhelming

remainder of the evidence inculpating Appellant"). Again, the only after-discovered evidence is

Lieutenant Dillon's testimony that the intended victims were in proximity of the shooting before

29

- and not during - the shooting. Defendant's claim for a new trial based on after-discovered

evidence lacks merit.

d. Supplementary Post-Sentence Motion for Production of Witnesses

Defendant claims the court erred in denying Defendant's Supplementary Post-Sentence

Motion for the Production of Witnesses pursuant to Defendant's right to confrontation. See

Def. 's Supp. Post-Sentence Motion for the Production of Witnesses. Defendant requested the

court "order a writ of habeas corpus ad testificandum [) for Tyrique Lyons and Haj Washington,

that the Commonwealth provide a current address for Kendall Rosendary to Defendant, and that

a material witness warrant be issued for Elijah Jones, or other relief as appropriate." Def. 's Supp.

Post-Sentence Motion for the Production of Witnesses, at 5. The court denied Defendant's

request. See Order, 3/25/19.

Defendant was not entitled to the production of witnesses at the post-trial evidentiary hearing

since he failed to satisfy his burden for their production. A post-sentence motion for evidentiary

hearing "must, at the very least, describe the evidence that will be presented at the hearing"

without "[s]imply relying on conclusory accusations made by another, without more . . . "

Commonwealth v. Castro, 93 A.3d 818, 827 (Pa. 2014) (finding that an article alleging police

officer's misconduct that referenced individuals "who may have been relevant witnesses in the

end" did not warrant an evidentiary hearing). Defendant's claim of "new evidence" from

Lieutenant Dillon's testimony did not warrant the production of witnesses at a post-sentence

hearing. The statements made by Lieutenant Dillon were are not inherently exculpatory in nature

or corroborating of Defendant's theory of self-defense. Rather, they were corroborative of the

Commonwealth's case that the Pottstown group came to Norristown to seek revenge for the

Jordan Scott murder. These statements alone did not entitle Defendant to the production of

30

witnesses. As the Supreme Court stated in Castro, the purpose of an evidentiary hearing is as

follows:

[T]he hearing is for the presentation of evidence, not the potential

discovery of evidence. 'An evidentiary hearing ... is not meant to

function as a fishing expedition for any possible evidence that may

support some speculative claim' . . . There must be actual

discovery of actual evidence. The relevant motion is not to serve as

a preemptive means of securing a hearing that will itself comprise

the investigation ... [One must] clearly articulate in his motion

what evidence he would present to meet the test.

Castro, 93 A.3d at 827-28 (citing Commonwealth v. Scott, 752 A.2d 871,877 n.8 (Pa. 2000)).

Moreover, Defendant did not proffer the witness's anticipated testimony in his motion.

Defendant's motion acknowledged that Elijah Jones spoke to Defendant's counsel over the

phone and stated "I don't want to help him, he tried to shoot me" and refused to testify. Def.'s

Supp. Post-Sentence Motion for the Production of Witnesses at 4.

Defendant's counsel stated he would ask the following questions to Lyons, Jones, and

Washington if they were produced at an evidentiary hearing:

"THE COURT: I mean, you tell me how the examination is going to

proceed.

MR. KOSCHIER: Mr. Jones, did you speak with Lieutenant

Dillon; yes or no? Mr. Jones, did you, in fact, make a statement to

Lieutenant Dillon admitting to being present at the scene prior to

the scene of the shooting? Did you hear any shots? What did you

see? Can you tell me what you saw? Can you tell me about your

confrontation prior to the shooting? Can you tell me what you told

the police?" N.T. Post-Trial Conference, 3/21/19 at 35.

Defendant sought an evidentiary hearing to investigate his claim further rather than

present "actual evidence." Defendant failed to satisfy his burden to compel the production of

witnesses. The court properly denied Defendant's request for the production of witnesses.

31

e. Motion to Quash Subpoena

Defendant claims the court erred in granting Elijah Jones' Motion to Quash Subpoena,

filed on April 2, 2019 by Elijah Jones' counsel. Defense counsel served a subpoena on Elijah

Jones on January 24, 2019 for his appearance on April 3, 2019 for the scheduled evidentiary

hearing. Elijah Jones filed a motion to quash the subpoena to testify at the post-sentence hearing

on May I 0, 2019. Elijah Jones' counsel invoked his client's Fifth Amendment right against self-

incrimination and the court quashed the subpoena. N.T. Post-Sentence Motion Hearing, 5/10/19

at 6-7.

"Typically, the standard of review regarding a motion to quash a subpoena is whether the

trial court abused its discretion." Commonwealth v. McClure, 172 A.3d 668, 683 (Pa. Super.

2017); See Commonwealth v. Mucci, 143 A.3d 399, 411-12 (Pa. Super. 2016) ("So long as there

is evidence which supports the trial court's decision, it [a decision to quash or enforce a

subpoena] will be affirmed."). Compelling Elijah Jones to testify in this proceeding would be a

violation of his Fifth Amendment right against self-incrimination. Jones argued that Defendant

was planning to question Elijah Jones on his involvement in the shooting of Rosendary and

implicate him as an alternative defendant in the case. N.T. Post-Sentence Motion Hearing,

5/10/19 at 4.

At the time of the hearing, Elijah Jones had an open criminal charge against him for

possession with intent to distribute a controlled substance. Id. at 5. If forced to testify, it could

have also compromised his legal position in the open case. Id. at 3. The court found sufficient

factual basis in Elijah Jones' assertion of his Fifth Amendment privilege and granted his motion

to quash subpoena. See Commonwealth v. Treat, 848 A.2d 147, 148 (Pa. Super. 2004) (citing

Commonwealth v. Kopicz, 840 A.2d 342, 350 (Pa. Super. 2003) ("The privilege extends not only

32

to statements that by themselves would be evidence that the declarant has committed a crime, but

also to assertions that would be 'a link in the chain' of evidence needed to convict."); See

Commonwealth v. Cook, 856 A.2d 869, 876 (Pa. Super. 2004) (citing Commonwealth v.

Simmons, 719 A.2d 336, 340 (Pa. Super. 1998) ("When reviewing a court's disposition of a

motion to quash a subpoena, we grant great deference to the factual findings of the trial court.").

The motion to quash subpoena was properly granted.

2. Expert Testimony - Detective Edward Schikel

Defendant claims the court erred by overruling Defendant's objections to the

Commonwealth's questions of its expert witness Edward Schikel. T4 697; 720; 722. Detective

Edward Schikel was qualified as an expert witness in the field of forensic crime scene analysis.

T4 687. Detective Schickel was employed at the Montgomery County Detective Bureau in the

Forensic Services Unit for nine years. T4 674-75. He had previously spent fifteen years with the

City of Philadelphia, eight of which were in the Crime Scene Unit either as a police officer or

supervisor. T4 675. During his time in the Crime Scene Unit, he underwent training in the

forensic identification lab and the Firearms Identification Unit. T4 676. Detective Shickel also

received training in identifying bullet strike marks. T4 676-678. Over the course of his career, he

has investigated hundreds of crime scenes, the majority of which were homicide cases. T4 678.

Defendant did not object to Schikel's qualification as an expert in this field. Ibid. "[T]he

admissibility of expert testimony is vested within the sound discretion of the trial court and will

not be overturned unless the trial court commits an abuse of that discretion." Commonwealth v.

Galvin, 985 A.2d 783, 801 (Pa. 2009).

Defendant objected to the following question on direct examination concerning the

direction that fired cartridge casings eject from a semiautomatic weapon.

33

Q: If you are firing a semiautomatic in a normal function, is there a

tendency for the fired cartridge casings to eject in a certain

direction?

MR. KOSCHIER: Objection, Your Honor outside the witness's

area of expertise.

MS. KEMP: Your Honor, the witness testified that he could testify

to that if you 're asking about specifically identifying if this is a .45

caliber.

THE COURT: Overruled. Overruled as to this question.

T4 697.

Schikel's expertise in crime scene analysis rendered him qualified to provide testimony on the

typical direction of ejected cartridge casings when fired from a semiautomatic weapon in a

normal fashion. Schikel's seventeen years of crime scene experience and extensive training in

the field qualified him to answer such a general question. The objection was properly overruled.

Defendant also claims the court erred by overruling his objection to two Commonwealth

questions to Schikel concerning the direction of gunfire. The following two questions were

timely objected to:

Q: So if that vehicle is driving with the flow of traffic or parked

with the flow of traffic driving northbound on that side of the

sidewalk, is what you observed with respect to that vehicle still

consistent with the bullets being fired in the direction of where the

blood trail was located?

MR. KOSCHIER: Objection, Your Honor.

THE COURT: Basis?

MR. KOSCHIER: It's outside the area of his expertise.

THE COURT: No. No. Overruled.

Again, ladies and gentlemen, this is a hypothetical

question. Therefore it assumes that the underlying factual predicate

is in evidence and you accept that as true.

You may continue.

34

Q: If that vehicle for this scenario is actually parked and the

individuals exit that vehicle and begin shooting in the direction of

the blood trial, is that consistent with the physical evidence you

observed on the front of that Chevy Impala as well as the

passenger's side?

A: Depending where they exit.

MR. KOSCHIER: Your Honor, I am going to renew my objection

generally.

THE C[OU]RT: Overruled.

T4 720-722.

Here, the underlying facts of the location of the blood trail and the location of the strike marks on

the Chevy Impala were already of record. T3 534-540; 570-71; T4 720. See Commonwealth v.

Galvin, 985 A.2d 783, 80 I (Pa. 2009) ("The use of hypothetical questions is proper when there is

evidence of record supporting the hypothetical."). The hypothetical question was posed to

"focus[ ] the witness' expertise onto the narrow issue under consideration" - whether the fired

bullets were coming from the direction of the vehicle to the area where the victim was found.

Commonwealth v. Leaner, 202 A.3d 749, 774 (Pa. Super. 2019) (quoting Ranieli v. Mutual Life

Ins. Co., 413 A.2d 396, 398 (Pa. Super. 1979)). This issue is well within Schikel's area of

expertise of analyzing evidence found at a crime scene, such as fired cartridge casings and bullet

strike marks, and narrowed the scope of the shooters' positions while shooting a firearm. T4 684-

685. The Commonwealth's crime scene expert testified within the scope of his expertise. The

Defendant's objections were properly overruled.

3. Identification Testimony

Defendant claims the court erred by overruling Defendant's objection at trial to certain

testimony by Officer Licwinko in violation of Defendant's pretrial discovery rights pursuant to

35

Pa.R.Crim.P. 573. During a pretrial hearing held on October 16, 2018, the Commonwealth

proffered testimony from Officer Licwinko that he had seen Defendant in Pottstown before the

shooting. N.T. Motion in Limine II, 10/16/18, at 335. Defendant contended that Officer

Licwinko's anticipated trial testimony constituted an "identification" and should be precluded

under Rule 573. Id. at 337. The court denied defense's request for a continuance. Ibid. At trial,

Defendant objected to the Commonwealth's question to Officer Licwinko: "Had you previously

observed Davis in the area of Pottstown?" TS 913. Defendant's counsel argued as follows:

Your Honor, I previously requested a continuance on this during

pretrial motions in this case, but your Honor denied it. There's case

law that stands for the proposition that the Commonwealth has an

obligation to provide identification testimony to the defense, even

if they're going to be calling prior officers related to separate

criminal incidents, if they're going to connect those criminal

incidents to the incident at issue.

Because the Commonwealth did not provide this discovery

to us sufficiently in the advance of trial to allow us to rebut and,

further, we weren't given a continuance request, I am now, for the

record, stating that this evidence should not be permitted at trial.

TS 914.

The Commonwealth proffered that Officer Licwinko would testify that he knew Defendant

associated with members of the groups ATM and BGB. TS 915-916. The court overruled

Defendant's objection to the specific question of whether the witness had seen Defendant in

Pottstown. TS 918. The court limited the testimony to the witness's personal and factual

observations only. 9 TS 918-919. The court further ordered "that the officer can't testify as to

prior criminal conduct or behavior by the defendant." TS 922. Defense counsel did object to the

limited scope of Office Licwinko's testimony thereafter. TS 920-922.

9

The Court reviewed a memorandum addressed to the Commonwealth's attorney Kristen Kemp dated October 23,

2018 written from Officer Licwinko which, inter alia, identified certain individuals as gang members. The court did

not permit Officer Licwinko to testify about the identities of gang members in accord with his memo. TS 9 I 8-19.

36

Rule 573 states that the Commonwealth must provide a defendant's attorney with

information regarding "the circumstances and results of any identification of the defendant by

voice, photograph, or in-person identification." Pa. R. Crim. P. 573(B)(l)(d). The Comment to

Rule 573 provides the following:

Whenever this rule makes reference to the term 'identification' or

'in-person identification,' it is understood that such terms are

intended to refer to all forms of identifying a defendant by means

of the defendant's person being in some way exhibited to a witness

for the purpose of an identification, e.g., a line-up, stand-up, show-

up, one-on[ ]-one confrontation, one-way mirror, etc."

Commonwealth v. Honesty, 850 A.2d 1283, 1286 (Pa. Super. 2004) (quoting Commonwealth v.

Jennings, 630 A.2d 1257, 1260 (Pa. Super. 1993)); See also Pa. R. Crim. P. 573. Here, Officer

Licwinko's testimony regarding whether he had seen Defendant in the Pottstown area is not an

"identification" in the context of Rule 573. The witness's testimony was based on his personal

observations of the Defendant, and not the product of an identification process where Defendant

was presented to the witness "for the purpose of identification." Honesty, 850 A.2d at 1287

(finding that witness's in-court identification of shooter was not subject to Rule 573 mandatory

disclosure). Officer Licwinko's "identification" of Defendant was not in the context of

recognizing him as the shooter, but rather identifying him as someone from Pottstown who was

seen with other persons. The Commonwealth did not violate Rule 573 and Defendant's objection

was properly overruled.

4. Defendant's Request for Mistrial for Prejudicial Statements

Defendant claims the court erred in denying Defendant's request for a mistrial after

Detective Mazza made prejudicial statements during the Commonwealth's cross examination. TS

I 085-87. On direct examination by Defendant, Detective Mazza testified there was a different

shooting that occurred on the night of August 7, 2017 where no arrests were made in connection

37

with that shooting. TS I 084. This other shooting was also investigated as related to the Jordan

Scott murder. TS I 085. During cross examination by the Commonwealth, Detective Mazza

testified as follows:

Q: In reviewing your report, did it state that this was investigated

as a part of the recent Norristown shootings related to the Jordan

Scott murder?

A: Yes

Q: And there is a current Pottstown versus Norristown beef?

A: Yes, ma'am.

Q: And were you aware that although no individuals were

arrested, that there were fired cartridge casings recovered?

A: Yes, there were casings recovered.

Q: A .40 caliber and a 9 millimeter?

A: Yes.

Q: And that the possible suspects -

MR. KOSCHIER: Objection, Judge.

THE COURT: Sustained.

BYMS. KEMP:

Q: Were you aware of potential suspects that-

MR. KOSCHIER: Objection.

BYMS. KEMP:

Q: -- were considered?

MS. KEMP: Your Honor, I am not naming names at this point.

MR. KOSCHIER: Objection.

THE COURT: Just a second. Just a second. This is a question

calling for a yes-or-no answer.

MS. KEMP: Yes, Your Honor.

38

THE COURT: I will allow that question.

BY MS. KEMP: Were you aware of there being potential suspects

that were being investigated for the August 7th of2017 shooting?

A: Yes, ma'am.

Q: Is it fair that the individuals who were shot at were non

cooperative?

A: Yes, ma'am.

Q: Were the individuals that were suspects arrested at some later

point for a different shooting?

A: They were.

Q: Were they arrested the following day or in the early morning

hours?

MR. KOSCHIER: Objection, Your Honor.

MR. GENOVESE: Objection, Your Honor.

THE COURT: Sustained.

MR. KOSCHIER: I move for a mistrial.

THE COURT: Denied. But I will listen to you at the end of the day

if you want to amplify your request.

MS. KEMP: Your Honor, I have nothing further. And I will

obviously stipulate that no individual was arrested with respect to

that.

TS I 085-87. 10

The denial of a mistrial is reviewed as follows:

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. A mistrial may be granted only where the incident upon

which the motion is based is of such nature that its unavoidable

effect is to deprive the defendant of a fair trial by preventing the

10

Defendant did not amplify his request for a mistrial as permitted by the court.

39

jury from weighing and rendering a true verdict. Likewise, a

mistrial is not necessary where cautionary instructions are adequate

to overcome any possible prejudice.

Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007). Moreover, an abuse of discretion occurs

when "the law is overridden or misapplied, or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will as shown by the evidence of

record." Commonwealth v. Tejeda, 834 A.2d 619, 624 (Pa. Super. 2003) (quoting

Commonwealth v. Garcia, 661 A.2d 1388, 1394-95 (Pa. Super. 1995).

Here, Defendant opened the door to this line of inquiry by first asking Detective Mazza

about a different shooting the day before the Rosendary shooting. TS I 084. The

Commonwealth's questions on cross-examination were within the scope of the direct

examination initiated by Defendant. However, no specific names were elicited by the

Commonwealth in connection to this other shooting. TS 1085-1086. See Commonwealth v.

Simpson, 174 A.2d 1264, 1273 (Pa. 2000) (affirming trial court's denial of mistrial where

witness vaguely introduced propensity evidence). The Court found that the testimony did not

"prevent the jury from fairly examining the entirety of the evidence and rendering a true verdict."

Simpson, 174 A.2d at 1272. Testimony that there were no arrests for a separate shooting that

occurred on the previous day as well as testimony that unidentified suspects for the separate

shooting were later arrested for another crime did not suggest Defendant in this case was

involved in that other incident. The Defendant was not deprived a fair trial through introduction

,

of Detective Mazza's testimony. Defendant's request for a mistrial was properly denied.

5. Prior Recorded Statement

The Defendant claims the Court erred by denying Defendant's request for the entirety of

a prior recorded statement to be introduced at the time of the Commonwealth's questioning

pursuant to Pa.R.E. 106. TS 1125-27. At trial, the Commonwealth questioned the Defendant

40

regarding his testimony at a suppression hearing on October 16, 2018 regarding his post-arrest

statement to police on August 9, 2017. TS 1122-1128. The Commonwealth introduced the notes

of testimony from the suppression hearing at trial as C-124. TS 1122-1123. The prosecutor asked

the Defendant about his testimony at the suppression hearing as follows:

Q: On Page 193, do you recall being asked the question, What was

your state of mind regarding what you wanted to do at that

moment? And do you recall giving the answer, Just go home. I had

nothing to do with it?

A: That was my statement made, yes.

Q: That was your testimony on October 16 of 2018?

A: Yes. Regarding my statement made on August 9th •

Q: And you were further asked, Question: Did you said you

wanted to go home because you had nothing to do with it; is that

correct? And you gave the answer, Yes?

A: That's my state of mind, yes. That's how I was feeling.

Q: That you had nothing to do with it?

A: Yes. That's my state of mind.

Q: So October 16 of 2018, you would agree, is way after August of

2017. At that point in time, you're still not saying it was self-

defense?

A: That was regarding my statement, ma'am.

Q: You had nothing to do with it, is what you testified to on~

MR. KOSCHIER: I am going to object, Your Honor, to this. The

entire statement is out of context.

THE COURT: You can ask questions on redirect so you have more

of a context.

41

BYMS. KEMP:

Q: On October 16, 2018, you testified that you had nothing to do

with any of it; is that correct?

MR. KOSCHIER: I am going to object on the same basis.

THE COURT: Overruled.

TS 1123-24, 1127.

If one party introduces all or part of a writing or recorded statement, Pa.R.E. 106 allows

an adverse party to introduce any other writing or part of a writing "that in fairness ought to be

considered at the same time." Pa.R.E. 106. The comment to Pa.R.E. 106 states the following:

The purpose of Pa.R.E. 106 is to give the adverse party an

opportunity to correct a misleading impression that may be created

by the use of a part of a writing or recorded statement that may be

taken out of context. This rule gives the adverse party the

opportunity to correct the misleading impression at the time that

the evidence is introduced. The trial court has discretion to decide

whether other parts, or other writings or recorded statements, ought

in fairness to be considered contemporaneously with the proffered

part.

Defendant's counsel had ample opportunity on re-direct examination to establish the context for

Defendant's statement to police. 11 See Commonwealth v. Bryant, 57 A.3d 191, 196 (Pa. Super.

11

On re-direct, Defendant testified as foJlows in response to his counsel's questions:

BY MR. KOSCHIER:

Q: One quick question for you: When ADA Kristen Kemp was talking about

how you were - You said at one point this past month, in October, that I didn't

have - something about what you said, and it seemed like you were not talking

about self-defense. Do you recaJI what that hearing was about?

A: The hearing was about suppression issues.

Q: It was just about whether or not police had coerced you in some way, right?

A: Yes, sir.

Q: It had nothing to do with anything else, correct?

A: Yes, sir.

Q: In fact, you had been instructed not to talk about other things because that

would have caused issues, correct?

[MS. KEMP:] Objection; leading.

THE COURT: Yeah. Sustained. Rephrase the question, please.

BY MR KOSCHIER:

Q: Would that have been the right place for you to talk about anything else?

MS. KEMP: Objection?

THE WITNESS: NO, sit.

42

2012) (affirming trial court's denial of entirety of diary, instead of one page of diary, to be

admitted at trial where appellant did not satisfy burden of proving the relevancy of the entirety of

the diary was not an abuse of discretion). The court found it more appropriate for defense

counsel to establish the context of Defendant's statement to police during his redirect

examination. TS 1124-1125. The jury was not misled. The court properly overruled defendant's

objection.

6. Frye Hearing

Defendant alleges the court erred in denying Defendant's pre-trial motion for a Frye

hearing pursuant to Pa.R.E. 702. Defendant challenged the use of DNA testing that creates

"likelihood ratio" evidence. See Def. 's Supp. Omnibus Pretrial Motion, at 8. The

Commonwealth's expert report from NMS Labs states the following regarding likelihood ratios:

The likelihood ratio (LR) compares the relative support of two

competing hypotheses under a specific set of assumptions. LR

values can range from O to infinity. Alternate hypotheses and/or

assumptions will typically change the LR value. An LR is not the

probability that the underlying assumptions of either hypothesis are

true/false.

Motions in Limine II, 10/16/18, Exhibit C-10. 12

The expert report concluded that Defendant's DNA was one of five individuals whose DNA was

found on the grip of a revolver found in Co-Defendant's Impala with a 19,660 13 to 1 likelihood

ratio that Defendant's DNA is included as one of those individuals. See Def.'s Supp. Omnibus

Pretrial Motion, at 8; N.T. Motions in Limine II, 10/16/18 at 219. Defendant challenged the

Commonwealth's use of "likelihood ratio" evidence as a novel science, questioning the

THE COURT: Overruled.

MR. KOSCHIER: No further questions.

TS 1159-60.

12

The expert report was admitted into evidence as exhibit C-10 at the motion in limine hearing held on October 16,

2018. Motions in Limine II, I 0/16/18 at 209. The report was not admitted into evidence at trial as the parties entered

into a stipulation regarding the DNA evidence. TS 986.

13

Defendant used the ratio" 19,660 to I" in his pretrial motion, but erroneously used the ratio" 19,680 to I" at the

pretrial hearing. See N.T. Motions in Limine 11, I 0/16/18 at 219.

43

methodology used to determine its conclusions. N.T. Motions in Limine II, 10/16/18 at 219-220.

The court denied the request for a Frye hearing. See Order, 10/17/18. Based upon the court's

ruling, the parties stipulated at trial that the DNA swabs taken from the grip of the .38 Special

caliber revolver found in the back of co-defendant Jones' Chevy Impala contained a mixture

from at least three individuals and was nineteen thousand six hundred sixty (19,660) times more

likely that Defendant Davis was one of those individuals. TS 986.

Pa.R.E. 702 allows a qualified expert witness to opine at trial if "the expert's

14

methodology is generally accepted in the relevant field" (the Frye test). Pa.R.E. 702; See

Commonwealth v. Jacoby, 170 A.3d 1065, 1090 (Pa. 2017) ("The Frye standard ... is used to

determine the admissibility of novel scientific evidence, and is incorporated into Rule 702."). In

order to trigger a Frye hearing, the party opposing the scientific evidence must prove its novelty

by showing "that there is a legitimate dispute regarding the reliability of the expert's

conclusions." Commonwealth v. Cramer, I 95 A.3d 594, 606 (Pa. Super. 2018) (citing

Commonwealth v. Safka, 95 A.3d 304, 307 (Pa. Super. 2014)). A Frye hearing is not necessary

every time a party seeks to admit scientific evidence, but "is warranted only when the trial court

'has articulable grounds to believe that an expert witness has not applied accepted scientific

methodology in a conventional fashion in reaching his or her conclusions."' Jacoby, 170 A.3d at

1090. (citing Commonwealth v. Walker, 92 A.3d 766, 790 (Pa. 2014)) (affirming trial court's

denial of a Frye hearing where Defendant was unable to prove that the methodology used in

creating Y-STR DNA evidence through the use of DNA databases was novel as Defendant's

arguments countered the weight of the evidence and not methodology used).

14

Frye v. United Stales, 293 F. 1013 (D.C. Cir. 1923).

44

Defendant argued the following at a motion in limine hearing on October 16, 2018:

Specifically that [likelihood ratio evidence] is going to be

presented to the jury. They're going to be told that a likelihood

ratio of 19,680 to I, the defendant's DNA is that DNA, one of

those five individuals' on the grip of that gun. That's really

important. And exactly how that came to that determination, to my

knowledge, has not been tested in the same way DNA has. And

that's not something that has been accepted in the scientific

community, because it is a protected trade secret of sorts. I believe

the Commonwealth should be required to show that a 19,680 to I

ratio is actually representative of what the actual likelihood is and

what room for error there may be. But they should at least be able

to be forced to establish that that is a valid science, Your Honor.

N.T. Motions in Limine II, I 0/16/18 at 219-220.

Defendant did not set forth "articulable grounds" challenging the methodology how likelihood

ratio evidence is created. Cramer, 195 A.3d at 607 (finding that appellant did not provide

"articulable grounds" to show that a licensed psychologist did not use accepted scientific

methods in reaching her conclusions where psychologist relied on her firsthand experience and

research in drawing her conclusions). Rather, Defendant broadly asserted that it is not generally

accepted in the relevant field because it is a "trade secret of sorts" without any further

explanation. N.T. Motions in Limine II, I 0/16/18 at 219. Defendant did not present any evidence

or make a sufficient showing of the type of system, theory, or general methodology that he

claims is not generally accepted in the scientific community. He did not meet his burden to prove

the need for a Frye hearing. See Commonwealth v. Foley, 38 A.3d 882, (Pa. Super. 2012)

(finding a method used to create likelihood ratio evidence called "TrueAllele" was not novel);

Commonwealth v. Treiber, 121 A.3d 435 (Pa. 2015) (likelihood ratio accepted to prove hair

came from appellant's dog). Defendant's request for a Frye hearing was properly denied.

45

7. Motion to Suppress Phone Material

Defendant claims the court erred in denying his Motion to Suppress Phone Material in

violation of the Fourth Amendment. Defendant's motion to suppress concerned two of his

phones: I) a cell phone seized in 2016 while Defendant was on juvenile probation in

I

Montgomery County (hereinafter "2016 phone") and 2) an LG phone seized from Defendant's

person following his arrest for the Rosendary shooting. Defendant alleges that both phones were

unconstitutionally searched without a warrant. Def. 's Supp. Omnibus Pretrial Motion at 2.

Defendant also alleges that the warrants issued to search the LG phone were based on

insufficient probable cause and were overbroad. Id. Evidentiary hearings were held on October J,

2018 and October 16, 2018. The court denied Defendant's motion to suppress phone material on

October 26, 2018. Findings, Memorandum, and Order, 10/26/18.

a. The 2016 Phone

Defendant concedes that the 2016 phone was validly seized, but asserts that the phone

was later unconstitutionally searched without a warrant. Def.'s Supp. Omnibus Pretrial Motion at

2. In 2016, Defendant was on juvenile probation under the supervision of Juvenile Probation

Officer Felicia Mickie in 2016. N.T. Motion in Limine I, 10/3/18 at 11. During that time,

Defendant was not permitted to have a cell phone, access Facebook, or contact certain

individuals believed to be members of ATM. Id. at 11, 13. On June 17, 2016, Officer Mickie

received an e-mail from Defendant's case worker that Defendant was in possession of a cell

phone (2016 phone) with the ability to send messages through Face book. Id. at 12. Officer

Mickie reviewed the 2016 phone and saw Defendant's text messages. Id. at 14.

46

Following evidentiary hearings, the court issued its Findings, Memorandum, and Order

dated October 26, 2018 and specifically addressed Defendant's claims that the search by his

juvenile probation officer was unlawful:

A probationer has limited Fourth Amendment rights because

of a diminished expectation of privacy. Commonwealth v. Williams,

692 A.2d 1031, 1035 (Pa. 1997) (citing Griffin v. Wisconsin, 483

U.S. 868, 873-74 (1987)). However, a probationer, like anyone

else, "is protected by the Fourth Amendment's requirement that

searches be 'reasonable."' Ibid. (quoting Griffin, 483 U.S. at 873,

I 07 S.Ct. at 3 I 68).

42 Pa.C.S.A. § 6304, relating to the powers and duties of

juvenile probation officers, provides, in pertinent part: "A personal

search of a child may be conducted by any probation officer: (A) If

there is a reasonable suspicion to believe that the child possesses

contraband or other evidence of violations of the conditions of

supervision." 42 Pa.C.S. § 6304(a.1)(4)(i)(A). The statute further

provides: "A property search may be conducted by any probation

officer if there is a reasonable suspicion to believe that the real or

other property in the possession of or under the control of the child

contains contraband or other evidence of violations of the conditions

of supervision." 42 Pa.C.S. § 6304 (a. I )(4)(ii). Our Supreme Court

has stated that 42 Pa.C.S. § 6304 "confirms a juvenile probationer ·s

expectation of privacy by requiring individualized 'reasonable

suspicion."' In re J.E., 937 A.2d 421, 427-28 (Pa. 2007) (emphasis

in original).

In the instant case, Officer Mickie told Defendant Davis that,

as a condition of his supervision while at Sweeney Home, he was

not permitted to have a cell phone, to contact certain individuals that

were members of ATM, or to access Facebook. (Tl at 11 :20-22;

13:21-24; 23:24-24:2; 13:4-10; 33:20-22). She had previously had

problems with Defendant Davis sending messages through

Facebook and communicating with members of ATM. (Tl at 23:21-

24:2). She then received an e-mail from Defendant Davis'

caseworker stating that Defendant Davis was found to be in

possession of the 20 I 6 phone and that Defendant Davis was able to

connect to the internet through the neighbor's Wi-Fi and send

messages via Facebook. (Tl at 12:19-23). The court finds that

Officer Mickie had a reasonable suspicion that the 2016 phone

contained evidence of violations of the conditions of his supervision.

Accordingly, the search of the 2016 phone did not violate Defendant

47

Davis' Fourth Amendment rights. Defendant Davis' motion the

data recovered from the 2016 phone is DENIED.

Findings, Memorandum, and Order, I 0/26/18, at 9-10.

The Defendant's Fourth Amendment rights were not violated in the search of his 2016 phone and

the court properly denied Defendant's motion to suppress.

b. The LG Phone

The LG phone was seized incident to Defendant's arrest and searched after police

obtained two search warrants in 2017 and 2018. N.T. Motion in Limine I, 10/3/18 at 63-64, 84-

85. The International Mobile Equipment Identity (IMEi), a number used to uniquely identify

mobile phones, was used to identify the LG phone for both the 2017 and 20 I 8 search warrants.

Id. at 76. Detective Kathleen Kelly testified that the IMEi was obtained by "tak[ing] the phone

apart and pop[ping] out the battery in the back." Ibid. The LG phone was also powered on in an

attempt to download its contents. Id. at 67-68. The Commonwealth obtained a warrant to search

the LG phone on August 9, 2017, but attempts to download its contents were unsuccessful

because the phone was locked. Id. at 64. No data was recovered from the phone at that time. Id.

at 65.

A second search warrant was issued on August 3, 2018 to search the LG phone again. Id.

at 84. By 2018, new technology was developed to bypass the LG phone's password protection

and successfully recover the data from the phone. Id. at 107-108.

The court's Findings, Memorandum, and Order dated October 26, 2018 specifically

addressed Defendant's claims concerning the 2017 and 2018 search warrants and the seizures

resulting therefrom:

Defendant Davis challenges the sufficiency of the affidavits

of probable cause for both the 2017 search warrant and the 2018

search warrant. He also argues that the warrants and execution of

48

the warrants were overbroad and the LG phone was searched

without a warrant.

"Before an issuing authority may issue a constitutionally

valid search warrant, he or she must be furnished with information

sufficient to persuade a reasonable person that probable cause

exists to conduct a search. The standard for evaluating a search

warrant is a 'totality of the circumstances' test." Commonwealth v.

Rapak, 138 A.3d 666, 670 (Pa. Super. 2016) (quoting

Commonwealth v. Ryerson, 817 A.2d 510,513 (Pa. Super. 2003)).

"[D]eference is to be accorded a magistrate's finding of probable

cause." Id. at 671 (quoting Ryerson, 817 A.2d at 514). "[T]he

focus is on the information provided to the issuing authority and its

response to that information .... The role of the reviewing court ..

. is to ascertain whether the issuing magistrate appropriately

determined that probable cause existed for the issuance of the

warrant." Ibid. (quoting Commonwealth v. Huntington, 924 A.2d

1252, 1256 (Pa. Super. 2007)).

"Although the warrantless seizure of[] cell phones ... [is]

permissible as the result of a search incident to arrest, the

subsequent search of [those] phones [is] not. ... to lawfully search

a cell phone, police must first obtain a warrant." Commonwealth v.

Fulton, 179 A.3d 475,485 (Pa. 2018); see also Riley v. California,

134 S.Ct. 2473, 2494 (2014). The mere act of powering on a cell

phone constitutes a search. Fulton, 179 A.3d at 488. Further,

"even a small, seemingly insignificant act of information gathering

by police in a constitutionally protected area is a search." Ibid.

"Any actions taken unrelated to an otherwise authorized intrusion

that result in exposing 'concealed portions' of an area in which a

person has a protected privacy interest is, for constitutional

purposes, a search." Ibid. The disassembly of a phone to view the

IMEi constitutes a search. See Arizona v. Hicks, 480 U.S. 321,325

( 1987) (holding that the act by police of moving stereo equipment

to view its serial number constituted a search).

Although the initial attempt to access the data on the LG

phone in 2017 pursuant to the 2017 search warrant may have

constituted a search by virtue of simply powering on the phone,

this attempt was unsuccessful and no data was recovered. Further,

no information obtained as a result of powering on the phone was

used in the gathering of other evidence or in obtaining the 20 I 8

search warrant. "Evidence of any kind obtained by police through

an unlawful search may not be used in any respect, including as

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