The opinion
J-A23029-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JULIUS L. ALLEN :
:
Appellant : No. 147 MDA 2021
Appeal from the Judgment of Sentence Entered December 23, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005672-2018
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 21, 2021
Appellant, Julius L. Allen, appeals from the judgment of sentence of life
imprisonment, and a consecutive term of 10-20 years’ incarceration, imposed
after he was convicted of first-degree murder1 and burglary.2 After careful
review, we affirm.
The trial court summarized the facts adduced at trial as follows:
Lashauna Thornton had been residing at 1309 Berryhill Street in
the City of Harrisburg with Iesha Green and Kevin Royster for
approximately two (2) months. On September 27, 2018, an
argument occurred over the payment of household bills. Having
decided to move out of the residence, Thornton went to the house
the next day to retrieve her belongings. With her was [Appellant],
a close friend, and a friend of his only known to her as Squeegee.
When they arrived at 1309 Berryhill Street, Thornton went into
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. § 2502(a).
2 18 Pa.C.S. § 3502.
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the house alone and retrieved her belongings without incident.
Her intention was to simply drive away.
However, [Appellant] began yelling to Green and Royster, who
were inside the house, to come outside to fight him. Presumably
intended for Royster, who was from Philadelphia, [Appellant]
yelled “that Philly nigger, he a bitch.” [Appellant] would not quiet
down despite Thornton’s repeated instructions for him to “shut
up.”
In response to the ongoing shouting, Green and Royster exited
the house through their back door and saw that it was [Appellant]
causing the commotion. [Appellant] stated to Royster that he was
“going to choke [him] the fuck out” and proceeded to do so as
Royster attempted to walk away. A fight ensued between
[Appellant], Royster[,] and Green; with each giving and receiving
various blows. At some point, Royster freed himself from the
scuffle and retrieved a knife from inside the house. However, he
returned it without having used it when instructed to do so by
Green. During the fighting, [Appellant] suffered injuries which
were described as his mouth being “busted.” The fighting finally
subsided when Green’s mother arrived on scene, separated
everyone, and told [Appellant] and Thornton to leave. [Appellant]
later told Thornton that before leaving[,] he shouted to Green and
Royster that he “would be back.”
After dropping off Squeegee, [Appellant] and Thornton drove to
[Appellant]’s grandmother’s house in Mechanicsburg. Once there,
[Appellant] told Thornton he wanted to go back to fight Royster.
[Appellant] retrieved a shotgun, a jacket in which he wrapped the
shotgun and gloves, all of which he put in the backseat of
Thornton’s car. He instructed Thornton to drive back to the area
of the alley behind 1309 Berryhill Street, and she did so. Once
back at the location, [Appellant] retrieved the shotgun from the
back seat and walked to an open area between two (2) row
homes. He returned shortly thereafter without the shotgun, got
back in the car[,] and instructed Thornton to drive to his friend’s
house.
When they arrived, [Appellant] did not exit the vehicle but yelled
to his friend to “meet him.” He then directed Thornton to drive
him to another house where his cousin lived. When Thornton
dropped [Appellant] at his cousin’s house, he gave her his cell
phone and instructed her to answer it when it rang. Thornton
drove to a Burger King on Paxton Street where she ordered food
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and ate by herself. Security camera video established that
Thornton was, in fact, at Burger King eating all alone.
[Appellant] proceeded without Thornton to a local informal
drinking establishment known as the Speakeasy and met up with
Joseph Cole, a family friend he had known for over twenty (20)
years. Cole was also an acquaintance of Royster and knew him to
be from Philadelphia. Cole noticed that [Appellant] was sweating
a lot, had a swollen and bloody lip and [Appellant] told him “he
got into something with a Philly dude.” [Appellant] also told Cole
that he hid a gun in an alley, and he asked Cole to go with him to
see the person from Philadelphia. When Cole refused to
participate, [Appellant] left and said he would be back.
[Appellant] returned to the Speakeasy fifteen (15) minutes later.
He told Cole that he shot somebody and left the gun at the scene.
[Appellant] asked Cole if he could use his phone because he did
not have his. Cole could hear through the phone that [Appellant]
called a female and asked to be picked up. The female unknown
to Cole said that she was at Burger King. When Cole later heard
that Royster had been shot, he called [Appellant] and asked him
what he had done. [Appellant] told Cole not to discuss it on the
phone.
When she received the call from [Appellant] on Cole’s phone,
Thornton left Burger King to pick him up at his cousin’s house as
he requested her to do. After picking up [Appellant], he told
Thornton to drive to an apartment complex on the South Side of
Harrisburg where he entered an apartment and remained inside
for approximately thirty (30) minutes. They then drove to
Steelton where [Appellant] gave his cousin a bag with the clothes
he had been wearing and told him to burn them.
[Appellant] and Thornton then returned to [Appellant]’s
grandmother’s house in Mechanicsburg. When they arrived,
[Appellant] told Thornton and his grandmother that he went to
1309 Berryhill Street, kicked in the door, and engaged in a “tussle”
with Royster. He said that Royster had just come out of the
shower, and that [Appellant] pulled the trigger as they struggled
over the gun. [Appellant] left the gun at the scene and left
Royster injured and “bleeding out” from a gunshot wound. When
[Appellant]’s grandmother told him he had to leave, he and
Thornton drove to [Appellant]’s mother’s home in Harrisburg.
Before parting ways with Thornton, [Appellant] told her not to
speak with the police.
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When police officers responded to the call of shots fired at 1309
Berryhill Street and made entry into the residence, they
discovered blood all over the kitchen floor. Kevin Royster was
found collapsed against the front door with a large shotgun wound
in his right thigh. He was completely naked. He was pronounced
dead at the scene.
Officers with the Harrisburg Police forensic unit discovered that
the strike plates were knocked off the front door of the house,
consistent with the door having been kicked in. They also noticed
moisture in the bathroom as if someone had just taken a shower.
Much of the evidence adduced at trial was corroborated by
historical data recovered from [Appellant]’s cell phone. The
process of obtaining and analyzing this data was explained by FBI
Agent William Shute.3 By way of illustration, [Appellant]’s phone
was found to be at the following locations on September 28, 2018:
a) 11:30 a.m. - 5:20 p.m.—at [Appellant]’s mother’s
residence;
b) 6:12 p.m. - 6:42 p.m.—at 1309 Berryhill Street,
corresponding to the general time of the initial fight
between [Appellant] and Royster;
c) 7:12 p.m. - 7:26 p.m.—at [Appellant]’s grandmother’s
home, corresponding to the trip to her house following
the fight when [Appellant] retrieved the shotgun;
d) 7:46 p.m.—in the area of the alley behind 1309 Berryhill
Street, corresponding to when [Appellant] hid the
shotgun;
e) 7:55 p.m. - 8:40 p.m.—at Burger King, corresponding to
the time when Thornton had [Appellant]’s phone and ate
at Burger King alone waiting for a phone call;
f) 9:02 p.m. - 9:30 p.m.—at Hooveter Homes on the South
Side of Harrisburg where [Appellant] entered an
apartment without Thornton;
3 Agent Shute was admitted as an expert in historical call
detail records and geolocation data with neither examination
on his credentials nor objection by [Appellant]. …
Although precise times were not testified to, [Appellant]’s phone
then proceeded to Steelton where [Appellant] discarded his
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clothes to be burned and then back to his grandmother’s house in
Mechanicsburg.
Trial Court Opinion (“TCO”), 3/24/21, at 2-6.
One day after the shooting,
a Criminal Complaint was filed against [Appellant] alleging the
offenses of Murder1 and Burglary.2 On September 8, 2020,
[Appellant] filed a Motion to Exclude the Admission of Cellular
Telephone Tower Cell Site Evidence and Google Location History
Data. On September 14, 2020, immediately prior to the
commencement of trial, a hearing was held on [Appellant]’s
motion. At the conclusion of the pretrial hearing, [the court]
denied [Appellant]’s motion to exclude the evidence in question.
Following a jury trial held on September 14-18, 2020, [Appellant]
was convicted of both charged offenses. On December 23, 2020,
[Appellant] was sentenced to an aggregate sentence of life
imprisonment[,] with a consecutive term of not less than ten (10)
nor more than twenty (20) years in a state correctional institution.
On January 4, 2021, [Appellant] filed a Post-Sentence Motion
which was denied on that same date.[3] A timely Notice of Appeal
was filed on January 27, 2021.
1 18 Pa. C.S.[] § 2502[.]
2 18 Pa. C.S.[] § 3502(a)(1)(i)[.]
TCO at 1.
Appellant filed a timely, court-ordered, Pa.R.A.P. 1925(b) statement,
and the trial court issued its Rule 1925(a) opinion on March 24, 2021.
Appellant now presents the following questions for our review:
I. Did not the lower court err in denying [Appellant]’s motion
based on the standard of Frye v. United States, 293 F.
1013 (1923)[,] to exclude expert testimony regarding the
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3 In Appellant’s post-sentence motion, he argued, inter alia, that he was
entitled to a new trial based on his claim that the verdict was against the
weight of the evidence with respect to his identity as the shooter. Appellant’s
Post-Sentence Motion, 1/4/21, at 2 ¶ 6.
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interpretation of a hybrid of cell phone tower data and geo-
location data acquired from the google corporation?
II. Did not the lower court abuse its discretion by failing to
grant [Appellant] a new trial on the basis that the guilty
verdicts were against the weight of the evidence when the
totality of the evidence with respect to establishing [his]
identity as the individual who entered the decedent’s
residence and shot the decedent was unreliable,
contradictory, and incredible?
Appellant’s Brief at 5.
Appellant first asserts that the trial court erred in permitting Agent Shute
to testify as an expert as to “the physical location of [Appellant]’s cell phone
based on a hybrid of cell tower data analysis and Google geo-location data
analysis[.]” Id. at 8. Appellant argues that the “scientific evidence was novel,
and the Commonwealth failed to establish the general scientific acceptance of
such expert conclusions under Frye….” Id.
As our Supreme Court has explained:
Appellate courts review evidentiary decisions for an abuse of
discretion. Commonwealth v. Walker, 92 A.3d 766, 772
(2014). “An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion 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 or the record, discretion is abused.” Id. at 772–73
(internal quotation marks and citations omitted).
In general, expert testimony is permitted in all trials “when it
involves explanations and inferences not within the range of
ordinary training[,] knowledge, intelligence and experience.” Id.
at 788. Expert testimony is governed generally by Rule 702 of
the Pennsylvania Rules of Evidence.
Rule 702. Testimony by Expert Witnesses[]
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A witness who is qualified as an expert by knowledge, skill,
experience, training[,] or education may testify in the form
of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed by
the average layperson;
(b) the expert’s scientific, technical, or otherwise
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue; and
(c) the expert’s methodology is generally accepted in
the relevant field.
Pa.R.E. 702. The Frye standard, first adopted by this Court in
Commonwealth v. Topa, 369 A.2d 1277 (Pa. 1977), is used to
determine the admissibility of novel scientific evidence, and is
incorporated into Rule 702. Grady v. Frito–Lay Inc., 839 A.2d
1038, 1043 (Pa. 2003). Frye permits novel scientific evidence to
be admitted at trial “if the methodology that underlies the
evidence has general acceptance in the relevant scientific
community.” Walker, 92 A.3d at 789 (citation omitted). Once it
is established that the scientific evidence in question is novel, “the
proponent must show that the methodology is generally accepted
by scientists in the relevant field, but need not prove the
conclusions are generally accepted.” Id. at 790 (citation omitted).
The burden is on the proponent of the evidence to demonstrate
its admissibility. Id. A Frye hearing is not required in every
instance that a party wants to introduce scientific evidence.
Rather, a hearing 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.” Id. (citation omitted).
Commonwealth v. Jacoby, 170 A.3d 1065, 1090–91 (Pa. 2017) (citations
reformatted).
Appellant acknowledges that this Court recently held “that scientific
evidence concerning historical cell-site analysis is not novel” and, therefore,
“its admissibility is not subject to the requirements of Frye.”
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Commonwealth v. Nevels, 203 A.3d 229, 241 (Pa. Super. 2019), aff’d, 235
A.3d 1101 (Pa. 2020).4 Thus, the scientific basis of Agent Shute’s expert
testimony, which included in substantial part historical cell-site analysis, was
not entirely novel, as Appellant concedes that the at-issue “Google records
are based on: (a) the GPS[5] device installed in the Android cell phone itself;
(2) [Wi-Fi]6 routers accessed by the cell phone; and (3) historical call
records based on the location of the cell tower accessed by the cell
phone.” Appellant’s Brief at 11 (emphasis added). Thus, Appellant’s
argument focusses on the portion of the Google location records that derive
from the GPS and Wi-Fi data, which were not technologies addressed in
Nevels. Appellant argues that his “research has failed to disclose any
decisional authority approving expert testimony based on such a hybrid
analysis” and that “Nevels does not control the result in the instant matter.”
Id. at 14-15. He further contends:
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4 Our Supreme Court did not address the Frye issue in affirming this Court’s
decision in Nevels.
5 “The Global Positioning System (GPS) … is a satellite-based radionavigation
system owned by the United States government and operated by the United
States Space Force” that “provides critical positioning capabilities to military,
civil, and commercial users around the world.”
https://en.wikipedia.org/wiki/Global_Positioning_System (last visited
September 30, 2021).
6 “Wi-Fi … is a family of wireless network protocols, … which are commonly
used for local area networking of devices and Internet access, allowing nearby
digital devices to exchange data by radio waves.”
https://en.wikipedia.org/wiki/Wi-Fi (last visited September 30, 2021).
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Although [Agent Shute] obviously does not view testimony based
on Google’s geo-location data to be “novel” science, his recitation
must be characterized as anecdotal and not scientific. He made
only passing reference to supposed studies vouching for the
accuracy of Google’s data. His chief reason for accepting the
accuracy of the data is that Google is a big company whose
business plan hinges on the accuracy of the data.
In view of all the foregoing, this type of “hybrid” data and “hybrid”
analysis is not scientifically established and must be viewed as
“novel” under the Frye standards. The Commonwealth did not
prove … that the expert’s methodology has general acceptance in
the relevant scientific community.
Id. at 15.
The trial court rejected Appellant’s claim, reasoning that he failed to
meet his initial burden under Frye to show the scientific evidence was novel
because Appellant “offered no testimony at the Frye hearing, expert or
otherwise, that established ‘any legitimate dispute regarding the reliability’ of
Agent Shute’s conclusions.” TCO at 8 (quoting Commonwealth v. Sajka, 95
A.3d 304, 307 (Pa. Super. 2014)). As the trial court further reasoned,
Agent Shute explained that the technology he and other law
enforcement officers utilize has been created and maintained in
the normal course of business because they enhance those non-
law enforcement entities. For example, he discussed how many
years ago cell carriers had to know where phones were to assess
any applicable “roaming charges.” N.T.[, 9/14/20, at 28]. Not
only does law enforcement now use this technology every day,
but so do many people in their lives. Agent Shute pointed out the
prevalence of this technology in GPS technology like Google Maps
or Waze. [Id. at 34-36]. He provided various examples of the
reliability of the technology and added that he has never seen an
example of phone providing false coordinates in his twenty (20)
years of experience. [Id. at 44]. Finally, he informed the [c]ourt
that there is literature on third party testing of Google data that
has confirmed its reliability, and that Google data is generally
accepted as reliable in both the high tech and law enforcement
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communities. [Id. at 33-34, 36]. Agent Shute’s testimony was
uncontroverted.
TCO at 9.
We agree with the trial court. Appellant’s contention—that the
determination of location of a smart phone through GPS and Wi-Fi
technologies is novel—is thoroughly unconvincing. Appellant provided no
evidence at the Frye hearing tending to establish that Agent Shute’s expert
testimony concerned novel science, or the novel use of these otherwise now-
ubiquitous technologies.7 We further reject Appellant’s bald contention that
Agent Shute’s testimony at the Frye hearing was unscientific and/or
anecdotal, as it is belied by the record. Agent Shute’s uncontradicted
testimony supports the trial court’s conclusion that the at-issue science is not
novel. Accordingly, we conclude that Appellant has failed to meet his burden
to establish that the trial court abused its discretion in permitting Agent
Shute’s expert testimony under Frye.
Next, Appellant asserts that the jury’s verdict was against the weight of
the evidence.
A motion for a new trial based on a claim that the verdict is against
the weight of the evidence is addressed to the discretion of the
trial court. Commonwealth v. Widmer, 744 A.2d 745, 751–52
(Pa. 2000); Commonwealth v. Brown, 648 A.2d 1177, 1189
(Pa. 1994). A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts
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7 Although we conclude that Appellant has simply failed to meet his burden
below to demonstrate any controversy regarding the novelty of the at-issue
science, we note that our own research has failed to uncover any state or
federal court ruling suggesting that the use of a cell phone’s GPS and/or Wi-
Fi data to determine its prior locations is novel science.
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would have arrived at a different conclusion. Widmer, 744 A.2d
at 752. Rather, “the role of the trial judge is to determine that
‘notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all
the facts is to deny justice.’” Id. at 752 (citation omitted). It has
often been stated that “a new trial should be awarded when the
jury’s verdict is so contrary to the evidence as to shock one’s
sense of justice and the award of a new trial is imperative so that
right may be given another opportunity to prevail.” Brown, 648
A.2d at 1189.
An appellate court’s standard of review when presented with a
weight of the evidence claim is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Id. Because
the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination that
the verdict is against the weight of the evidence.
Commonwealth v. Farquharson, 354 A.2d 545 (Pa.
1976). One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of
justice.
Widmer, 744 A.2d at 753 (emphasis added).
This does not mean that the exercise of discretion by the trial court
in granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is unfettered. In
describing the limits of a trial court’s discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom[,] and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice[,] or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
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judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.
Id. (quoting Coker v. S.M. Flickinger Co., 625 A.2d 1181,
1184–85 (Pa. 1993)).
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations
reformatted).
Here, Appellant contends that “the evidence in its entirety was so
unreliable, contradictory, and incredible that the jury’s verdict was based on
conjecture.” Appellant’s Brief at 30. Appellant supports this argument by
pointing to several ostensible “conflicts and inconsistencies in the evidence,”
which he summarizes as follows:
(1) although the police responded immediately to the shooting,
they did not observe [Appellant], who had a physically singular
appearance, in the area; (2) there was no forensic evidence at the
crime scene linking [Appellant] to that crime scene; (3) the only
DNA on the shotgun was that of the decedent; (4) the police did
not do any follow-up investigation of Kaitlyn Alston, the upstairs
neighbor who had a recent dispute with the decedent; (5) Kaitlyn
Alston, who was subpoenaed, inexplicably failed to show up for
the trial; (6) the police failed to interview [Appellant]’s
grandmother and mother to determine the veracity of Ms.
Thornton’s statement that [Appellant] confessed to those women;
(7) the decedent has a violent character, as evidenced by his
pulling a gun on Kaitlyn Alston and a knife on [Appellant]; (8)
Joseph Cole’s credibility is undermined by his previous conviction
for perjury, by his approaching the police only after he was jailed
on a parole violation detainer, and by the seemingly favorable
treatment that he received in that prosecution; (9) [Appellant]
displayed consciousness of innocence by immediately turning
himself into the police.
Id. at 29-30.
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Appellant’s argument is unconvincing, as there was substantial evidence
of his guilt, and the jury was free to make its own credibility determinations
regarding the Commonwealth’s witnesses. We further agree with the trial
court that any deficiencies that existed in the Commonwealth’s evidence were
counterbalanced by
the testimonies of Iesha Green, Lashauna Thornton[,] and Joseph
Cole[, which] perfectly w[o]ve together a narrative from which the
jury could very reasonably find [Appellant]’s guilt. Their
testimony is remarkably supported by the historical cell data and
the Burger King surveillance video. Even the minimal evidence
uncovered by the police forensic unit, such as evidence that the
door to 1309 Berryhill Street had been kicked in and that the
bathroom appeared as if someone had just taken a shower,
supports Thornton’s testimony that [Appellant] told her he kicked
the door in and that it appeared Royster had just come out of the
shower. In this case, the guilty verdict certainly did not shock
one’s sense of justice and [Appellant]’s judgment of sentence
should be upheld.
TCO at 7-8.
We ascertain no abuse of discretion in the trial court’s denying
Appellant’s motion for a new trial based on his weight-of-the-evidence claim.
Consequently, Appellant is also not entitled to relief on his second claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2021
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