Com. v. Baker, T.

J -S19020-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

TROY EMANUEL BAKER,

Appellant No. 454 MDA 2016

Appeal from the Judgment of Sentence Entered February 19, 2016

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s):

CP-22-CR-0000034-2014

CP-22-CR-0002151-2014

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 01, 2017

Appellant, Troy Emanuel Baker, appeals from the judgment of

sentence of an aggregate term of 6 years' and 8 months' to 15 years'

incarceration, following his conviction for four burglary and conspiracy

counts. After careful review, we affirm.

The trial court summarized the facts adduced at trial as follows:

At docket 34-CR-2014, [Appellant] was found not guilty of

Count 1 (Colonial Lounge Burglary), Count 2 (L&N Beverage

Burglary), Count 4 (Colonial Country Club Burglary), Count 5

(Super 7 Mart Burglary),3 and Counts 8, 9, 11, and 12

(Conspiracy counts). In regards to these burglaries, the

Commonwealth introduced evidence that showed how the

burglaries were committed (in order to establish modus

operandi) and what was taken from each location. The

* Former Justice specially assigned to the Superior Court.

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Commonwealth also introduced a PowerPoint presentation that

generally showed the location of each burglary and pictures from

the scene of the incident. As [Appellant] was found not guilty of

the above -mentioned burglaries, this [c]ourt will briefly discuss

those that [Appellant] was found guilty of below.

3[Appellant] was also found not guilty of the conspiracy to

commit burglary in regards to these counts.

Count 3 - Barr's Exxon Interstate (Gas Station) Burglary (Pine

Grove, Pennsylvania):4

[Appellant] was found guilty of the Barr's Exxon Interstate

burglary at docket 34-CR-2014, Count 3. The incident occurred

after the gas station closed on June 7, 2013 (into June 8, 2013).

Larry Barr, owner of Barr's Exxon Interstate, testified that cash

and a DVD player were taken. Trooper Jordan Tuttle, a

Pennsylvania State Trooper who was first to arrive on the scene,

introduced a PowerPoint presentation that described the layout

of the property, the wires that were cut, the window damage,

the door damage, how the ATM looked, the cash register, the

damage to the safe, etc. Trooper Tuttle also testified that this

burglary was very distinct in that it was well -executed and

organized. The Commonwealth's final witness in regards to the

Barr's [Exxon] Interstate burglary was Trooper Robert Kluge who

was asked to follow up on any leads leading from the

investigation. The Commonwealth also presented testimony

from an employee of Barr's Interstate and the owner who

testified to what they saw in regards to the burglary.

4 Barr's Exxon Interstate is located around mile marker

100 on Interstate 81 near the Pine Grove exit in Schuylkill

County. The burglary took place sometime after the gas

station closed on June 7, 2013 into June 8, 2013.

Count 6 - Blue Ridge Country Club (Harrisburg, Pennsylvania):

[Appellant] was found guilty of the Blue Ridge Country

Club burglary at docket 34-CR-2014, Count 6. The incident took

place in August of 2013. Wade Boulder, employed as a

controller at the Blue Ridge Country Club, testified that $3,500 in

cash was taken at the time of the burglary. Officer Bryan Ryder,

of the Lower Paxton Township Police, was the first to arrive on

scene for the Blue Ridge incident and noticed that numerous

wires were cut on an outside pole where the alarm system was

hooked up. Investigator McPhillips discussed the Blue Ridge

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Country Club burglary.5 As later testimony would reveal, the

three (3) defendants, all of whom lived in the Baltimore -

Washington area, were followed into Pennsylvania by detectives

from Maryland on the night of the Blue Ridge caper as part of a

police investigation in that state.

5 TheCommonwealth introduced another PowerPoint

(Commonwealth's Exhibit 426) which showed the scene of

the Blue Ridge Country Club burglary.

Count 7 - Thorndale Exxon Gas Station Burglary (Thorndale,

Chester County, Pennsylvania):

[Appellant] was found guilty of the Thorndale Exxon Gas

Station burglary at docket 34-CR-2014, Count 7. The incident

occurred the night of August 26, 2013 into August 27, 2013.

Rakesh Kumar ("Rocky"), part owner of Thorndale Exxon Gas

Station, testified that a DVR system, cartons of cigarettes,

cigars, and $7,000 to $8,000 in cash was taken during the

burglary. Detective James Lippolis, a Detective in the Cain

Township Police Department, Chester County, processed the

scene and through him, the Commonwealth introduced another

PowerPoint Presentation. 6 This PowerPoint presentation

provided a walk-through of the Thorndale Exxon Gas Station

Burglary and provided photographs of the following: location, the

gas station itself, damaged front door, damaged ATM machine,

ATM Cash Box,' lottery machine register, cash register (with

wires cut), pictures of the safe, the alarm panel systenn,8 and

wires from where the DVR system would have been.

6

The Commonwealth introduced said PowerPoint

presentation as Commonwealth's Exhibit 505.

7 The ATM cash box was admitted into evidence.

8

alarm

The panel system was admitted as

Commonwealth's Exhibit 564.

Count 1 - Shell at Top of the 80s Gas Station and Convenience

Store Burglary (located at 218, Route 93, Hazleton, PA):

[Appellant] was found guilty of the Shell at the Top of the

80s Gas Station burglary at docket 2151-CR-2014, Count 1. The

incident occurred on the night of September 3, 2013 into

September 4, 2013. Jihad Abdulrahman, owner of the gas

station, testified that cigarettes and cigars were taken along with

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an estimated $5,000 to $6,000 in cash on the night of the

burglary.9 The Commonwealth called Corporal Mark Dotter, of

the Pennsylvania State Police, to testify to the investigation and

car chase that took place following the break-in. Corporal Dotter

testified that he activated his emergency lights and sirens to pull

over the Yukon, which was the getaway vehicle used by the

burglars, including ... Appellant. The Commonwealth proceeded

to call Detective Joseph Pugliese, who at the time of the

burglaries was a Detective in the Howard County Police

Department and a member of the ROPE unit. Detective Pugliese

first testified as to the Blue Ridge Country Club incident and his

surveillance and monitoring of a white work van and a Yukon

(known to be driven by [Appellant]) around 2:50 a.m. in the

morning on the night of the incident. Next, Detective Pugliese

testified to the incident that occurred during the Shell at Top of

the 80s Gas Station burglary. Finally, Detective Pugliese

testified that he helped with the stop following the chase.

9 Mr. Abdulrahman also testified that his satellite system

for the credit card machine was taken.

Other evidence was introduced linking the Defendant and

his co-defendants to the charged burglaries.

Cindy Skylight Liquor Store Burglary (Elkridge. Maryland):'°

Police Officer John Mooney of the Howard County Police

Department testified to the burglary that occurred on August 12,

2013 at Cindy Skylight Liquor Store. Officer Mooney was the

first officer to arrive on the scene and made sure the scene was

secure. Officer Mooney discovered a purse'' (inside the purse

was co-defendant[] Cornell Anthony Cole's driver's license)

I[]ying in the grass. Once inside, Officer Mooney noticed that

the alarm keypad was ripped off the wall and the safe was

tampered with and that the outside electrical phone box was

damaged and the wires were cut. Detective Nathan Guilfoyle,

the lead investigator, testified that the proactive enforcement

unit (ROPE)12 got involved and contact was eventually made with

Detective Glucksman. The Commonwealth also introduced

Commonwealth's Exhibit 425 which was a search warrant for the

installation of an electronic tracking devise for a 2003 GMC

Yukon owned by [Appellant]. Detective Guilfoyle also testified

that they had also obtained a search warrant (although never

executed) for a 2009 Ford E350 work van owned by Cornell Cole.

Trooper Christopher Plumadore, employed by the Maryland State

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Police, and Jon Blevit, a Police Officer in Whitpain Township,

Montgomery County, Pa both testified to prior interactions with

the defendant(s). A Stipulation was read to the jury in regards

to the 2009 incident (Trooper Plumadore), the 2010 incident

(Officer Blevit), and Cindy Skylight Liquor Store.13

1° [Appellant] was not charged with this burglary.

11Introduced as Commonwealth's Exhibit 361A.

12 This was a plain -clothes type of unit who drive unmarked

vehicles.

13 This Stipulation included that any charges stemming

from the 2009 incident were dismissed and expunged, no

charges were brought from the 2010 incident, and any

charges from Cindy Skylights were withdrawn and

dismissed.

Cell Phone Records:

The Commonwealth called Special Agent Richard Fennern

to testify in regards to historical cellular technology. Special

Agent Fennern went through his background, described CAST

(cell -phone related analysis), as well as his training and

experience, and gave background on what exactly is historical

cellular technology (can determine a phone's location based on

the cell tower's make-up). Special Agent Fennern can look at

phone records and based on when there is phone activity, can

give a general location of the phone during the call. The

Commonwealth introduced a PowerPoint of Special Agent

Fennern's conclusions in regards to his research. The

PowerPoint presented showed the various locations and times of

the individual phone records of Mr. Cole, [Appellant], and Mr.

Smith. 14

14

In regards to the phone number of Mr. Smith, an

objection was made not to use his name in reference to a

particular phone number. Said objection was overruled as

[Detective] Kreller had discussed the link between the

phone number provided and Mr. Smith.

GPS Tracking:

The Commonwealth called Sergeant Sarah Kayser, a

member of the Howard County Police Department, to testify in

regards to GPS surveillance in this case.15 Court Orders had

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been obtained in order to do a live GPS tracking for the cell

phones of [Appellant], Mr. Cole, and Mr. Smith.

15

Sergeant Kayser was a member on the ROPE team

(previously mentioned above).

Following the testimony of Sergeant Kayser, [Detective]

Kreller was recalled to testify. [Detective] Kreller indicated that

he was the lead investigator with the ROPE team. [Detective]

Kreller went on to testify about the Blue Ridge Country Club

incident.16 In regards to the Thorndale Exxon Burglary,

[Detective] Kreller explained that on the night of August 26,

2013 into August 27, 2013, he followed the suspects up to the

Mason-Dixon Line (but stayed in Maryland). [Detective] Kreller

also testified to the burglary that took place in Hazleton, PA.17

At this point, the ROPE team was working with Detective

Glucksman here in Pennsylvania (it was more of a joint venture

and additional resources were available to the ROPE team).

16[Detective] Kreller was actually on the scene and was

part of the ROPE team maintaining visual surveillance of

the suspects.

17 This occurred on the night of September 3rd, 2013 into

the night of September 4th, 2013 and eventually led to the

arrest of the suspects.

The Commonwealth's final two witnesses were Nicholas

Plumley, a forensic scientist with the Pennsylvania State Police

Bureau of Forensic Sciences, who testified as to evidence

collected and how it related to each burglary and Detective

Glucksman introduced the mobile vehicle report system videos of

the chase and the arrest of the suspects.

Trial Court Opinion (TCO), 9/21/16, at 3-8 (citations to the notes of

testimony omitted).

The trial court also provided the procedural history leading to this

appeal as follows:

Following a jury trial that commenced on January 22, 2016 and

concluded on February 5, 2016, Appellant was found guilty of

burglary and conspiracy for four of the incidents and acquitted of

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the other counts. He was sentenced on the above captioned

dockets as follows:

Docket No. 34-CR-2014: At Count 3 (Barr's Exxon

Burglary), [Appellant] was sentenced to a term of incarceration

of not less than 16 months no[r] more than 36 months. At

Count 6 (Blue Ridge Country Club Burglary), [Appellant] was

sentenced to a term of incarceration of not less than 16 months

nor more than 36 months running consecutively to Count 3. At

Count 7 (Thorndale Exxon Burglary), [Appellant] was sentenced

to a term of incarceration of not less than 16 months nor more

than 36 months running consecutively to Count 6. At Count 10

(Barr's Exxon Burglary - Conspiracy), [Appellant] was sentenced

to a term of incarceration of not less than 16 months nor more

than 36 months running consecutively to Count 7. At Count 13

(Blue Ridge Country Club Burglary - Conspiracy), [Appellant]

was sentenced to a period of incarceration for a term of not less

than 16 months nor more than 36 months running concurrently

to Count 6. At Count 14 (Thorndale Exxon Burglary -

Conspiracy), [Appellant] was sentenced to a term of

incarceration of not less than 16 months nor more than 36

months running concurrently to Count 13.

Docket No. 2151-CR-2014: At Count 1 (Shell Gas Station

Burglary), [Appellant] was sentenced to a term of incarceration

of not less than 16 months nor more than 36 months running

consecutively to Count 10 on Docket No. 34-CR-2014. At Count

2 (Shell Gas Station Burglary - Conspiracy), [Appellant] was

sentenced to a term of incarceration of not less than 16 months

nor more than 36 months to run concurrently with Count 1.

[Appellant] was entitled to time credit from September 14, 2013

to August 17, 2015, 23 months and 13 days.

[Appellant]'s total sentence was a period of incarceration

not less than 80 months['] nor more than 180 months['

incarceration].

A timely notice of appeal was filed on March 17, 2016. In

compliance with this [c]ourt's Order directing Appellant to file a

[Pa.R.A.P. 1925(b) statement], Appellant filed a [Rule 1925(b)

statement] on April 25, 2016.

Id. at 1-2. The trial court issued its Rule 1925(a) opinion on September 21,

2016.

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Appellant now presents the following questions for our review:

I. Did not the court err in denying [Appellant]'s motion to

sever his case from those of his co-defendants pursuant to

Pa.R.Crim.P. 583 when he suffered prejudice as a result of

the consolidation?

II. Did not the court err in denying [Appellant]'s motion to

suppress based on the illegal searches performed by

Maryland Police Officers in the Commonwealth of

Pennsylvania outside of any permissive authority described

in 42 Pa.C.S. §§ 8921-8924 (regarding interstate hot

pursuit) and 42 Pa.C.S. §§ 8951-8954 (regarding

municipal police jurisdiction)?

III. Did not the court err in denying [Appellant]'s motion[,]

based on the standard of Frye v. United States, 298 F.

1013 (1923)[,] to exclude expert testimony of historical

cell tower data acquired from [Appellant]'s cell phone

providers?

IV. Did not the court err in permitting the Commonwealth to

introduce prior -bad -act evidence detailing activities of the

three defendants, or subsets of them, when such activities

were remote from the events on trial and when such

activities did not result in any criminal convictions?

V. Did not the court err in denying [Appellant]'s motion for

mistrial based upon the Commonwealth's exceeding the

bounds of the pretrial ruling permitting it to introduce

prior -bad -act evidence?

Appellant's Brief at 7-8.

Appellant's first claim concerns the issue of severance/joinder.

Appellant was subjected to a joint trial with co-defendants Cole and Smith,

after his pretrial motion to sever was denied. Appellant asserts that joinder

was improper under the governing standard, and/or that his motion for

severance by party should have been granted.

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"We consider the decision of whether to deny a motion to sever under

an abuse of discretion standard." Commonwealth v. O'Neil, 108 A.3d

900, 905 (Pa. Super. 2015). "The court may order separate trials of

offenses or defendants, or provide other appropriate relief, if it appears that

any party may be prejudiced by offenses or defendants being tried

together." Pa.R.Crim.P. 583.

"Under Rule 583, the prejudice the defendant suffers due to the

joinder must be greater than the general prejudice any

defendant suffers when the Commonwealth's evidence links him

to a crime." Commonwealth v. Dozzo, 991 A.2d 898,902 (Pa.

Super. 2010) (citation omitted), appeal denied, 607 Pa. 709, 5

A.3d 818 (2010).

The prejudice of which Rule 583 speaks is, rather, that

which would occur if the evidence tended to convict the

appellant only by showing his propensity to commit crimes,

or because the jury was incapable of separating the

evidence or could not avoid cumulating the evidence.

Additionally, the admission of relevant evidence connecting

a defendant to the crimes charged is a natural

consequence of a criminal trial, and it is not grounds for

severance by itself.

Id. (quoting Commonwealth v. Lauro, 819 A.2d 100,107 (Pa.

Super. 2003), appeal denied, 574 Pa. 752, 830 A.2d 975

(2003)).

Commonwealth v. Richard, 150 A.3d 504,509-10 (Pa. Super. 2016)

Moreover, "when a conspiracy is alleged the defendants should usually

be tried together." Commonwealth v. Tolassi, 392 A.2d 750, 753 (Pa.

Super. 1978). As our Supreme Court further explained in Commonwealth

v. Housman, 986 A.2d 822, 834 (Pa. 2009), "joint trials are preferred

where conspiracy is charged. [Nevertheless, s]everance may be proper

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where a party can establish the co-defendants' defenses are so antagonistic

that a joint trial would result in prejudice. ... However, the party seeking

severance must present more than a mere assertion of antagonism[.]" In

determining whether a defendant can overcome preference for joint trials of

co-conspirators, we consider the following three factors:

(1) Whether the number of defendants or the complexity of the

evidence as to the several defendants is such that the trier of

fact probably will be unable to distinguish the evidence and apply

the law intelligently as to the charges against each defendant;

(2) Whether evidence not admissible against all the defendants

probably will be considered against a defendant notwithstanding

admonitory instructions; and (3) Whether there are antagonistic

defenses.

Tolassi, 392 A.2d at 753.

Instantly, Appellant alleges that there was a "danger" that the jury

would be incapable of distinguishing evidence pertaining to the prior -bad -

acts of his co-defendants, "despite any admonitory warnings." Appellant's

Brief at 28. Specifically, Appellant was not involved in a 2010 vehicle stop

involving his co-defendants, Cole and Smith, who were stopped in

Montgomery County, Pennsylvania. During that stop, police discovered

"various tools, clothing[,] and equipment that the Commonwealth

characterized as instruments for committing burglaries." Id. at 18.

Appellant claims "[t]here is no better proof of that fact tha[n] the comments

of the attorney during his closing argument. Despite his long-term

familiarity with the evidence, he grouped all three defendants together in his

references to the ... 2010[] incident." Id. at 38-39.

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The trial court justified its joinder/severance decision, stating:

In the instant case, the burglaries took place over an

approximately five (5) month period within and around central

Pennsylvania. There are numerous factors weighed in favor of

joinder, including the fact that the charges against the multiple

defendants arose from the same course of events. In addition,

relevant evidence (i.e. the surveillance and tracking of the

multiple defendants, the way each burglary was carried out, the

time of occurrence of each burglary, etc.) of each crime would

be admissible as relevant evidence of the other charged crimes.

Furthermore, the evidence against the multiple defendants

(including Appellant) formed part of the "natural development"

of the facts and history of Appellant's case. Commonwealth v.

Childress, 452 Pa.Super. 37, 680 A.2d 1184, 1188 (1996)

(evidence of crimes other than the one in question may be

admitted where such evidence is part of the history of the case

and forms part of the natural development of the facts).

With respect to considering any potential prejudice, this [c]ourt

finds that the jury was capable of separation of the individual

defendants/crimes because the victims and witnesses for each

were different and presented that way during the trial. The

Commonwealth's testimony on the cellular phone data and other

relevant evidence was presented separately by date and location

of each incident. Finally, it is clear that the jury appropriately

received and parsed the evidence as it rendered guilty and not

guilty verdicts accordingly at the end of the trial. In this

[c]ourt's weighing of the probative value of the common

evidence, the possible prejudicial value of permitting the joinder

of several defendants and trials of the individual offenses as

against the interests of judicial economy, it properly exercised its

discretion by denying Appellant's motion for severance on the

issues presented at trial and ... Appellant's motion to sever the

defendant from trial with his co-defendants.

TCO at 10-11 (footnote omitted).

We agree with the court's analysis, especially in light of the

presumption that co-conspirators should be tried together. See

Houseman, supra. Furthermore, we are wholly unconvinced that the

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inclusion of evidence regarding a single prior bad act by Appellant's co-

conspirators, which did not involve Appellant, could not be easily separated

by the jury, merely because of an isolated error by a prosecutor. Moreover,

in his brief, Appellant provides no authority which supports that view.

Indeed, we agree with the Commonwealth that Appellant has simply failed to

demonstrate that the prejudice arising from Appellant's joinder with his co-

conspirators, under these circumstances, "presents substantially more

prejudice than exist[s] in any joinder case...." Commonwealth's Brief at 11.

Accordingly, we conclude that Appellant's first claim lacks merit.

Next, Appellant presents a two-part claim that the trial court erred in

denying his motion to suppress evidence presented by the Maryland police

officers, evidence which he asserts was collected without any permissible

authority under either 1) the statutes governing interstate hot pursuit, 42

Pa.C.S. § 8922 et. seq.; or 2) the Municipal Police Jurisdiction Act (MPJA), 42

Pa.C.S. § 8953 et. seq.

Our standard of review in addressing a challenge to the denial of

a suppression motion is limited to determining whether the

suppression court's factual findings are supported by the record

and whether the legal conclusions drawn from those facts are

correct. Because the Commonwealth prevailed before the

suppression court, we may consider only the evidence of the

Commonwealth and so much of the evidence for the defense as

remains uncontradicted when read in the context of the record

as a whole. Where the suppression court's factual findings are

supported by the record, we are bound by these findings and

may reverse only if the court's legal conclusions are erroneous.

Where, as here, the appeal of the determination of the

suppression court turns on allegations of legal error, the

suppression court's legal conclusions are not binding on an

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appellate court, whose duty it is to determine if the suppression

court properly applied the law to the facts. Thus, the

conclusions of law of the courts below are subject to our plenary

review.

Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012)

(quoting Commonwealth v. Hoppert, 39 A.3d 358, 361-62 (Pa. Super.

2012)).

Some factual background is necessary to understand the nature of the

evidence sought to be suppressed, as well as the manner in which it was

obtained. Co-defendant Cole's driver's license and debit card were found at

the scene of a burglary of Cindy Skylight Liquors in Elkridge, Maryland, on

August 12, 2013. N.T. Suppression Hearing, 8/26/14, at 16-18. Officers

responding to the burglary collected these items from the scene of the

burglary, processed them into evidence, where they were reviewed by

Officer Nathan Guilfoyle, who initially led the investigation. Officer Guilfoyle

took this evidence to the Repeat Offender Proactive Enforcement (ROPE)

Division of the Criminal Investigations Bureau of the Howard County Police

Department.

Detective Kreller was a supervising member of the ROPE team, and

the ROPE team's primary purpose was to assist other criminal investigation

divisions by providing covert surveillance of individuals suspected of

committing crimes in or around Howard County. Id. at 55. Essentially,

Detective Kreller was assigned to follow Cole and his suspected cohorts and

report on any suspicious or criminal activity observed.

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Initially, Detective Kreller obtained historical cell phone tracking data

which indicated the presence of the suspects' cell phones near the Cindy

Skylight Liquors at the time that business was burglarized.' Id. at 62-64.

Detective Kreller stated that Cole and his cohorts were already on the ROPE

team's radar due to prior investigations, and that the police had been aware

of their "unique MO." Id. at 93. Cole and his co-defendants were previously

suspected in multiple prior burglaries. Id. Detective Kreller began to focus

on Cole because of the ID evidence obtained at the Cindy Skylight Liquors

burglary. Id. at 95. On one occasion prior to his foray into Pennsylvania

while tracking Appellant, Detective Kreller observed him, in his white van,

meet up with co-defendant Smith, in his Yukon. Id. at 96. Officer Kreller

followed them to a gas station in Woodbine, Maryland, where a burglary of a

gas station occurred that same evening. Id. Detective Kreller also observed

Appellant and another individual ostensibly casing a gas station in

Bartonsville, Maryland. Id. Appellant and his cohort were seen "on the

roof" of the business at 2:30 a.m., inexplicably but for nefarious motives,

although it appears as if they did not attempt to gain entry at that time. Id.

On August 26, 2013, the evening of the Blue Ridge Country Club

burglary, Detective Kreller was in Howard County when he was alerted that

the suspects were moving north on Interstate 83 in Maryland. Detective

' The Commonwealth sought to admit this historical cell phone tracking data

under Pa.R.E. 404(b).

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Kreller followed them all the way to Harrisburg, Pennsylvania. Id. at 98.

Eventually, he tracked them to the Blue Ridge Country Club, where he first

observed Cole and Appellant circling the surrounding area in Appellant's

vehicle. Id. at 97-99. Subsequently, Detective Kreller observed the

following:

So we heard an audible alarm from the Blue Ridge and we

knew they were in that area. And at this point it's really tough

on us trying to get in as close as we can without being

compromised. So basically myself and another detective were

laying in a fairway of the golf course where we watched suspects

walk across the fairway to the direction of what I would refer to

as the clubhouse, or the pro shop where they were there for an

extended period of time.

And then we observed two suspects walk back across the

fairway. I don't know of the time, five, ten minutes. I would

have to review my report how long it was, where they were at

the direction of the pro shop. But once they walked back across

the fairway there was then four suspects that came into our view

as they walked along Route 39 dressed in all black clothing, ski

masks, and items in their hand.

As cars came on along Route 39 the suspects would go to

the guardrail. They would go to the wood side of the guardrail.

They would hunch down where it looks thick. They were trying

to hide themselves from traffic. And they would then walk back

and continue along Route 39.

Id. at 100. Detective Kreller did not enter Pennsylvania in response to a

request from any Pennsylvania police department. However, neither

Detective Kreller nor his ROPE team members attempted to effectuate an

arrest of any of the individuals they observed at that time. Id. at 103.

Appellant sought to suppress these observations, as well as the cell

phone tracking evidence that led Detective Kreller to follow the defendants

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to the Blue Ridge Country Club, based on the claim that Detective Kreller

and his fellow Maryland officers made these observations without any

authority under, or in contravention to, Pennsylvania law.

Appellant first asserts that the Maryland officers were conducting a

search within the meaning of the Fourth Amendment of the U.S.

Constitution, and Article I, Section 8, of the Pennsylvania Constitution, thus

requiring a warrant or a showing of probable cause and exigency in the

absence of a warrant, when they tracked Appellant's and his cohort's cell

phones using real-time, GPS data provided by their phone carriers. We

agree with this aspect of Appellant's argument. See Commonwealth v.

Rushing, 71 A.3d 939, 961-64 (Pa. Super. 2013) (holding the "[a]ppellant

did have a legitimate expectation of privacy that the government could not

surreptitiously track his real time location via his cell phone signal" and that

the "police were required to make a showing of probable cause in order to

obtain real time cell site information data," and to demonstrate "exigent

circumstances" in the absence of a warrant), rev'd on other grounds, 99

A.3d 416 (Pa. 2014).

However, Appellant's argument then immediately proceeds to consider

whether "the exclusionary rule applies," after summarily concluding that

"[i]nasmuch as their activities are not embraced by the statutory exceptions

set forth in 42 Pa.C.S. §§ 8921-8924 and 42 Pa.C.S. §§ 8951-8954...."

Appellant's Brief at 44. Appellant overlooks, or simply fails to develop, any

argument that these searches were, in fact, unconstitutional or otherwise

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illegal under Pennsylvania law. Although it is apparent that Appellant

believes the MPJA and hot pursuit statute were violated, there is virtually no

explanation beyond a bald assertion as to why that was the case. Moreover,

we find Appellant's argument to be unresponsive to the trial court's analysis

in its opinion. Regarding Appellant's claim(s), the trial court stated:

[Appellant], in essence, is contending that the

observations, cellular phone records and "pings" obtained by

Maryland law enforcement officers should be suppressed. The

Maryland law enforcement officers merely observed what

occurred at the Blue Ridge Country Club. After observing the

burglary at Blue Ridge, Detective Guilfoyle reached out to

Detective Glucksman. Additionally, for the Thorndale Exxon

incident, [Detective] Kreller testified that he followed the

suspects up to the Mason-Dixon Line (but stayed in Maryland).

We are unable to ascertain how the Maryland Officers "illegally"

entered the Commonwealth of Pennsylvania thus causing their

visual observations to be suppressed. The ROPE team was

operating and investigating suspects that were believed to be in

their own jurisdiction. After tracking the suspects to

Pennsylvania, they observed them at the golf course and did not

attempt to make an arrest. Instead, they followed the proper

channels and made contact with detectives from Pennsylvania.

We further note that Detective Glucksman and the Maryland

Officers entered a joint operation in an attempt to stop this

string of burglaries. The Howard County Police officers were

doing their job in an attempt to stop a string of burglaries that

had been occurring in their jurisdiction. [Appellant] was

ultimately arrested by Pennsylvania State Troopers and

Detective Glucksman was the affiant in this case. Accordingly, it

is clear that this Court did not err in denying the [Appellant]'s

pretrial motion to suppress any and all evidence observed by the

Howard County Police Officers.

TCO at 12.

First, we agree with the trial court's implying that the Maryland

officers' observations at Blue Ridge Country Club did not constitute a

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constitutionally regulated search or seizure. Among other things, Appellant

had no legitimate expectation of privacy with regard to observations of his

conduct while he trespassed on a golf course in the middle of the night. See

generally Commonwealth v. Russo, 934 A.2d 1199, 1213 (Pa. 2007)

(holding "that the guarantees of Article I, Section 8 of the Pennsylvania

Constitution do not extend to open fields; federal and state law, in this area,

are coextensive"). Appellant provides no argument to the contrary.

Second, with regard to the live -tracking of Appellant's cell phone into

Pennsylvania, and the obtaining of his historical cell phone records (which

included data showing Appellant's presence and movement in Pennsylvania),

Appellant does not dispute that these 'searches' were the subject of lawfully

obtained court orders in Maryland. Thus, while the circumstances of this

case might present the novel issue of whether continuous searches of this

nature, although authorized by lawful court orders in Maryland, nevertheless

cease being lawful when they cross an interstate border, Appellant provides

no discussion, whatsoever, as to why that is the case, other than to baldly

invoke the MPJA and hot pursuit statutes.2 In his brief, Appellant sidesteps

2

Indeed, that such searches are illegal, or become illegal once they cross

state lines, is far from obvious. We note that the MPJA provides that a

police officer has the power to act outside of his primary territorial

jurisdiction when "the officer is acting pursuant to an order issued by a court

of record or an order issued by a district magistrate whose magisterial

district is located within the judicial district wherein the officer's primary

jurisdiction is situated ... except that the service of an arrest or search

warrant shall require the consent of the chief law enforcement officer, or a

(Footnote Continued Next Page)

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this issue entirely and merely presumes the searches' illegality, and then

argues, extensively, as to why the exclusionary rule should apply. This is

putting the proverbial cart before the horse. Consequently, we are

constrained to conclude that Appellant has waived his suppression claim in

its entirety due to his failure to adequately develop an argument on appeal.

See Commonwealth v. Walter, 966 A.2d 560, 566 (Pa. 2009) (holding

claims waived for failure to develop them).

Next, Appellant claims that the trial court erred by denying his

challenge to exclude evidence pursuant to Frye; specifically, Appellant

sought to exclude testimony which interpreted the historical cell phone

records in order to determine Appellant's and his co-defendants' locations at

the time of the robberies.3 "Under Frye, novel scientific evidence is

admissible if the methodology that underlies the evidence has general

acceptance in the relevant scientific community." Grady v. Frito-Lay, Inc.,

839 A.2d 1038, 1043-44 (Pa. 2003).

(Footnote Continued)

person authorized by him to give consent, of the organized law enforcement

agency which regularly provides primary police services in the municipality

wherein the warrant is to be served." 42 Pa.C.S. § 8953(a)(1). Appellant

does not explain why this provision did not apply to the Maryland officers,

considering they obtained court orders for the live -tracking of Appellant's cell

phone, and for his historical cell phone records, in their primary jurisdiction,

and no arrest or search warrants were "served" outside of that jurisdiction.

3

Appellant does not challenge any evidence concerning the real-time

tracking of his cell phone under Frye.

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As a general rule, this Court's standard of review of a trial

court's evidentiary ruling, including a ruling whether expert

scientific evidence is admissible against a Frye challenge, is

limited to determining whether the trial court abused its

discretion. Grady[], ... 839 A.2d [at] 1046[]; Zieber v. Bogert,

565 Pa. 376, 773 A.2d 758, 760 n. 3 (2001) (citing

Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225 (2000)).

"An abuse of discretion may not be found merely because an

appellate court might have reached a different conclusion, but

requires a result of manifest unreasonableness, or partiality,

prejudice, bias, or ill -will, or such lack of support so as to be

clearly erroneous." Grady, 839 A.2d at 1046 (citing Paden v.

Baker Concrete Constr., Inc., 540 Pa. 409, 658 A.2d 341, 343

(1995)).

Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005).

The admissibility of expert scientific testimony is governed by Pa.R.E.

702, which reads:

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

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

opinion or otherwise if:

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

knowledge is beyond that possessed by the average

layperson;

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

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; and

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

relevant field.

Pa.R.E. 702.

Our Supreme Court has explained:

This Court has noted that the Frye test, which was adopted in

Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369

A.2d 1277 (1977), "is part of Rule 702." Grady, 839 A.2d at

1042. In Frye, the Court of Appeals of the District of Columbia

considered whether expert evidence concerning a blood pressure

"deception test," which supposedly determined whether a test

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subject was being truthful based on changes in blood pressure,

was admissible against a criminal defendant. In rejecting the

evidence, the court opined that, to be admissible, the evidence

must be sufficiently established and accepted in the relevant

scientific community:

Just when a scientific principle or discovery crosses the line

between the experimental and demonstrable stages is

difficult to define. Somewhere in this twilight zone the

evidential force of the principle must be recognized, and

while courts will go a long way in admitting expert

testimony deduced from a well -recognized scientific

principle or discovery, the thing from which the deduction

is made must be sufficiently established to have gained

general acceptance in the particular field in which it

belongs.

Frye, 293 at 1014. This passage sets forth the core of what

F.

has come to be known as the "Frye test."

In Topa, where this Court considered spectrographic voice

print identification evidence, we described the Frye standard as

follows: "Admissibility of the [scientific] evidence depends upon

the general acceptance of its validity by those scientists active in

the field to which the evidence belongs." Id. at 1281. In finding

that the proffered scientific evidence was inadmissible in Topa,

the Court quoted the rationale set forth by the Court of Appeals

of the District of Columbia in United States v. Addison, 498

F.2d 741, 744 (D.C. Cir. 1974):

"The requirement of general acceptance in the scientific

community assures that those most qualified to assess the

general validity of a scientific method will have the

determinative voice. Additionally, the Frye test protects

prosecution and defense alike by assuring that a minimal

reserve of experts exists who can critically examine the

validity of a scientific determination in a particular case.

Since scientific proof may in some instances assume a

posture of mystic infallibility in the eyes of a jury of

laymen, the ability to produce rebuttal experts, equally

conversant with the mechanics and methods of a particular

technique, may prove to be essential."

Topa, 369 A.2d at 1282.

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This Court has consistently followed this manner of

approach when confronted with novel scientific evidence in the

three decades since our adoption of Frye. See

Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170

(1981) (process of refreshing recollection by hypnosis not yet

accepted); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d

830 (1992) ("Sexually Abused Child Syndrome" evidence not

admissible); Commonwealth v. Zook, 532 Pa. 79, 615 A.2d 1

(1992) (electrophoresis test of dried blood stains deemed

admissible); Commonwealth v. Crews, 536 Pa. 508, 640 A.2d

395 (1994) (certain DNA evidence deemed inadmissible);

Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997)

(repressed memory theory deemed inadmissible);

Commonwealth v. Crawford, 553 Pa. 195, 718 A.2d 768

(1998) (revived repressed memory testimony rejected); Blum

ex rel. Blum v. Merrell Dow Pharmaceuticals, Inc., 564 Pa.

3, 764 A.2d 1 (2000) (expert testimony regarding causal link

between mother's ingestion of drug and child's birth defect

deemed too unreliable to be admitted where it involved

recalculation of data used in other studies); Grady, supra

(expert witness's conclusion concerning safety of food product

inadmissible because expert's methodology lacked general

acceptance in relevant scientific community for purposes of

reaching such conclusion). In addition, in Grady, this Court

recently made clear that Frye would remain the governing

Pennsylvania standard, and not the newer federal standard

represented by Daubert v. Merrell Dow Pharmaceuticals,

Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

Grady, 839 A.2d at 1044-45.

Dengler, 890 A.2d at 380-81.

Instantly, Appellant argues that the trial court erred by admitting

evidence concerning his location, or the location of his co-defendants, which

was derived from the historical data obtained from their cell phones.

Appellant explains:

Historical cell tower records, also known as call detail records,

are the billing records that the cell companies use to keep track

of their customers' calls. They show the date and time of all

calls made or received, the numbers called, the duration of each

call, and the cell towers used to begin and end a call.

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By comparison, it is a more established procedure for a cell

company - after being served with a court order or search

warrant - to perform a real-time, live "ping" of a cell phone

equipped with GPS technology. GPS "pinging" in many cases

can assign a caller's location down to a radius of 20 meters.

At trial, the Commonwealth produced expert testimony

that, inter alia[,] had these components: (a) [Appellant]'s cell

phone utilized a particular 120 degree "sector" of a particular cell

phone tower at a time relevant to the prosecution; and (b) the

cell phone was located at that time in a quantifiable distance -

the so-called "footprint" - from the relevant sector of that

particular cell tower. The first conclusion is based on the

premise that a cell phone will always connect to the tower with

the strongest signal, usually the one closest to the phone when

the call is made. The so-called "footprint" in the context of the

second conclusion is actually a quantification of the radio range

of the particular cell tower.

At the pretrial Frye hearing on August 24, 2014, the

Commonwealth presented no expert testimony. The employee of

Sprint was admittedly not an expert. Neither was Detective

Glucksman. He merely stated that he was trained to plot the

historical cell tower information on a map pursuant to

instructions that he received at certain courses. Accordingly, the

Commonwealth produced no expert testimony at the pretrial

hearing detailing the scientific basis behind the two components

of cell tower analysis.

In point of fact, the Commonwealth at the time of the

pretrial hearing did not even believe that it was necessary to

present an expert witness at trial. That belief changed by the

time of trial, and the Commonwealth produced expert testimony

from FBI Special Agent Richard Fennern. However, even if one

bootstraps Richard Fennern's trial testimony onto the evidence

adduced at the pretrial Frye hearing, there is still no expert

testimony explaining the scientific basis of historical cell tower

analysis, especially the method by which the FBI is able to

calculate a quantifiable "footprint" of the cell tower at the

relevant time.

Appellant's Brief at 49-51 (citations to record omitted).

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The trial court determined that the contested testimony was not

"novel" under the Frye test. TCO at 14. The court's conclusion was based

on Special Agent Fennern's testimony that

with his ample education and experience, [he] credibly

confirmed that historical cellular data analysis is not novel

science. There was nothing presented in the testimony to

dispute that the functioning of the cell phone in relation to the

cell tower and the resulting data recorded is [not] novel in the

cellular service provider community or the electronics community

generally.

TCO at 14-15.

Thus, the Commonwealth put forward evidence through Special Agent

Fennern that the science at issue is not novel. In his brief, Appellant fails to

point to any evidence or testimony that contradicts this conclusion. Indeed,

our review of the record indicates that Appellant did not offer testimony by

any expert, in any field, to contradict the Commonwealth's evidence that the

science at issue is not novel. It is not apparent, therefore, under our abuse -

of-discretion standard of review, that the court's decision in this regard was

contrary to any evidence or testimony of record. In fact, it was consistent

with the only evidence of record presented on the topic.

Nevertheless, Appellant's argument suggests that the court's decision

was contrary to existing law, or should be determined to be, despite the

evidentiary record in this case. In this regard, Appellant relies on a federal

district court case, U.S. v. Evans, 892 F.Supp.2d 949, 951 (N.D. III. 2012),

in which similar evidence was rejected by the federal district court. Initially,

the Commonwealth objects to this authority on the basis that it is not

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precedential, and applied the Daubert standard, not the Frye standard as is

applicable in this Commonwealth. While we recognize that Evans is not

precedential, we may look to it as persuasive authority. See Martin v. Hale

Products, Inc., 699 A.2d 1283, 1287 (Pa. Super. 1997) ("Decisions of the

federal courts lower than the United States Supreme Court possess a

persuasive authority."). And while we agree with the Commonwealth that

the applicable standard differs, this Court is not categorically barred from

considering the reasoning behind that decision in coming to our own

conclusion.

In Evans, a kidnapping case, the prosecution proposed to call

Special Agent Raschke to testify about the operation of cellular

networks and how to use historical cell site data to determine

the general location of a cell phone at the time of a particular

call. Applying a theory called "granulization," Special Agent

Raschke proposes to testify that calls placed from Evans's cell

phone during the course of the conspiracy could have come from

the building where the victim was held for ransom.

Evans, 892 F.Supp.2d at 951.

Evans challenged Agent Raschke's testimony under the F.R.E. 702,

i.e., the Daubert test. The court first determined that Agent Raschke was

qualified "to testify as an expert concerning the operation of cellular

networks and granulization theory." Id. at 955. The court also determined

that Agent Raschke's testimony regarding how the cellular networks operate,

without applying that knowledge to the facts of the case, was admissible.

Id. However, the court ultimately determined that Agent Raschke could not

testify regarding the application of the granulization theory to the facts of

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the case, that is, he could not testify regarding a prediction as to a specific

location for the Evans' cellphone, "[Oven that multiple factors can affect the

signal strength of a tower and that Special Agent Raschke's chosen

methodology has received no scrutiny outside the law enforcement

community, the court concludes that the government has not demonstrated

that testimony related to the granulization theory is reliable." Id. at 957

(emphasis added). This was despite Agent Raschke's testimony that "he has

used this theory numerous times in the field to locate individuals in other

cases with a zero percent rate of error. He also testified that other agents

have successfully used this same method without error." Id. at 956.

In our view, the federal court's decision in Evans is distinguishable

from the instant matter on both the facts and the law. First, as a factual

matter, the Evans case involved pinpointing Evans' cell phone at a particular

location at a particular time. As noted by Appellant here, and the Evans

court, this can be problematic because the presumption that a cell phone

connects to the closest cell phone tower may sometimes be incorrect.

Obstructions could cause a phone to connect to a different tower, or a

particular call could be rerouted due to network traffic. Thus, pinpointing a

cell phone's location at one moment in time is potentially unreliable.

However, the nature of the evidence in this case was not nearly as

unreliable. Agent Fennern did not testify as to precise locations for the

defendants' phones. Agent Fennern demonstrated that the defendants' cell

phones showed activity in Maryland before the burglaries, activity in the

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vicinity of the burglaries in various locations in Pennsylvania at the same

time as the burglaries, and then more activity back in Maryland following the

burglaries. N.T., 1/29/16, at 1030-63. Most importantly, this information

was consistent for each of the defendants' phones. At no point did Agent

Fennern testify that any of the defendants were at the scene of a particular

burglary at a particular time. Nevertheless, in aggregate, this was powerful

circumstantial evidence of the defendants' involvement and coordination in

the burglaries. Although it may not have been 100% clear which specific

tower a specific cell phone was communicating with at a specific time, the

defendants' cell phones were not communicating with a tower in central

Pennsylvania when the data indicated apparent activity in the Baltimore

area, and vice versa, given the inherent limitations of the range limits of the

cell phones and cell phone towers. Accordingly, we find the concerns of the

Evans court were relatively minimal in the instant case.

Second, it appears as if the basis for the Evans court's decision was,

at least in part, based on a Daubert factor that is not required under the

Frye standard. Under Frye, the test is whether "novel scientific evidence is

admissible if the methodology that underlies the evidence has general

acceptance in the relevant scientific community." Grady, 839 A.2d at 1043-

44 (emphasis added). Under Daubert, "the trial judge evaluates whether

the evidence will assist the trier of fact, and whether the evidence is reliable

and scientifically valid." Id. at 1044. Thus, under the federal Daubert

standard, reliability is determined by the court. Under Frye, reliability is

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evaluated by the jury. In Evans, the court determined that the assumptions

about which towers were used, assumptions necessary to pinpoint a cell

phone's location, were unreliable in light of the specific purpose for which

the scientific theory in question was being used. Not only are such concerns

not nearly as impactful on the evidence in the instance case, but it was for

the jury to determine the reliability of the expert's opinion. Moreover, the

Evans court's decision on this matter does not represent any sort of

consensus in the federal courts. At least two other federal district courts

have reached the opposite conclusion regarding identical objections to the

same technology concerning general acceptance and reliability. See U.S. v.

Banks, 93 F.Supp.3d 1237, 1252 (D. Kan. 2015) ("The [c]ourt finds

Benford's analysis persuasive and reaches the same conclusion as it did.");

U.S. v. Benford, 2010 WL 2346305, at *3 (N.D. Ind. 2010) (holding

witness qualified to provide expert opinion about the defendant's

approximate location based on cell -site data) (unreported).

Finally, here, the trial court determined that the science involved was

"not novel science[,]" based on its determination that Agent Fennern

testified credibly to that effect. TCO at 14-15. While the Evans court

reached a different determination, its factual conclusions were not binding

on the trial court in this case, and given the opposite conclusions reached in

Benford and Banks, we ascertain no abuse of discretion on that basis.

Accordingly, we conclude that Appellant's third claim lacks merit.

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Next, Appellant asserts that the trial court abused its discretion when

it admitted prior -bad -acts evidence concerning the three defendants,

regarding

(1) the August 13, 2013, burglary of Cindy's Skylight in Howard

County, Maryland; (2) a search of a vehicle in Montgomery

County, Pennsylvania, on May 10, 2010, said vehicle being

occupied by [Appellant]; and (3) a search of a vehicle in

Walkersville, Maryland, in July 2009, said vehicle being occupied

by [Appellant] and Cornell Smith.

Appellant's Brief at 54. Specifically, Appellant argues that, contrary to the

ruling of the trial court, this evidence did not constitute "identity" or "res

gestae" evidence within the meaning of Pa.R.E. 404(b)(2).

The admission of evidence is solely within the province of

the trial court, and a decision thereto will not be disturbed

absent a showing of an abuse of discretion. "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 discretion ... is abused."

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (internal

citations omitted).

Generally, evidence of prior bad acts or unrelated criminal

activity is inadmissible to show that a defendant acted in

conformity with those past acts or to show criminal propensity.

Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be

admissible when offered to prove some other relevant fact, such

as motive, opportunity, intent, preparation, plan, knowledge,

identity, and absence of mistake or accident. Pa.R.E. 404(b)(2).

In determining whether evidence of other prior bad acts is

admissible, the trial court is obliged to balance the probative

value of such evidence against its prejudicial impact.

Commonwealth v. Powell, 598 Pa. 224, 956 A.2d 406, 419

(2008).

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

exception to the prior -bad -acts -evidence ban set forth in Rule 404(b)(1) has

been recognized by our courts, although not explicitly mentioned in Rule

404(b)(2),4 is one "that permits the admission of evidence where it became

part of the history of the case and formed part of the natural development of

facts. This exception is commonly referred to as the res gestae exception."

Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016) (citation

omitted).

With regard to the identity exception set forth in Rule 404(b)(2), this

Court has previously stated:

Identity as to the charged crime may be proven with

evidence of another crime where the separate crimes share a

method so distinctive and circumstances so nearly identical as to

constitute the virtual signature of the defendant. Required,

therefore, is such a high correlation in the details of the crimes

that proof that a person committed one of them makes it very

unlikely that anyone else committed the others.

Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009)

(citations and quotation marks omitted). However, "[a] review of Rule

404(b)(1) and relevant jurisprudence shows the other crime need not match

every fact and circumstance of the charged crime before it may be used to

prove identity." Id. at 1190.

4

As the comment to Rule 404 notes, "Pa.R.E. 404(b)(2)

contains a non -

...

exhaustive list of purposes, other than proving character, for which a

person's other crimes wrongs or acts may be admissible." Pa.R.E. 404

(comment) (emphasis added).

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The trial court determined that the instant case was substantially

similar to what had occurred in Weakley. TCO at 21. In Weakley, a

robbery/murder case involving victims Kerkowski and Fassett, the

Commonwealth sought to introduce evidence against Weakly and his co-

conspirator regarding a subsequent robbery of Samuel Goosay, due to the

following similarities between the two cases:

(1) Both crimes were allegedly committed by Selenski and co-

defendant Weakley; (2) Flex ties found on the bodies of the

homicide victims were visually, instrumentally, and

steromicroscopically similar to those removed from Samuel

Goosay, the victim of the subsequent robbery; (3) Flex ties were

used to bind the hands of Kerkowski and Fassett in the

homicides, and used to bind the hands of Goosay in the robbery.

(4) Duct tape found on the body of the homicide victim

Kerkowski was visually, instrumentally and stereomicroscopically

similar to the tape removed from Goosay, the robbery victim;

(5) Duct tape was used to cover the eyes of Kerkowski and

Goosay; (6) Flex ties were used in conjunction with duct tape as

a distinct method of restraint of the victims in the two incidents;

(7) The two crimes or incidents occurred in or involved the

victims' residences, as opposed to their businesses; (8)

Kerkowski and Goosay were both small business owners; (9)

Goosay's jewelry store and Kerkowski's pharmacy both dealt in

large sums of cash; (10) Jewelry and prescription drugs have

independent street value; (11) The victims of the two matters

were left bound as the assailants fled; (12) Flex ties and duct

tape were found or seen at both defendant's properties and/or in

their vehicles.

Weakley, 972 A.2d at 1192.

The trial court granted the defendants' motions in limine to exclude

this evidence pursuant to Rule 404(b)(1). This Court reversed, holding that:

While this list requires pruning of conclusory and repetitive

entries, what remains nevertheless describes a crime so

distinctive in method and so similar to the charged crime that

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proof appellees committed one tends to prove they committed

the other. The evidence thus goes beyond showing mere

conformity with a propensity to commit a class of crime, to wit,

violent robbery-a purpose prohibited under Pa.R.E. 404(b)(2).

Instead, the evidence shows identity-a purpose permitted under

Pa.R.E. 404(b)(3)-through selection of a particular class of

victim and use of idiosyncratic methods to carry out the crimes.

The probative value of this strong identity evidence, moreover,

outweighs its presumed potential for prejudice.

Weakley, 972 A.2d at 1188.

Instantly, in his brief, Appellant provides no response to the trial

court's reliance on Weakley. Instead, he relies on boilerplate statements of

the law concerning the identity exception, from which he conducts his own

analysis. Although Appellant's analysis is not trivial, we are constrained by

our reading of Weakley to conclude that that the trial court did not abuse

its discretion by permitting the at -issue prior bad acts to be admitted under

the identity exception. Although the identity -based justification for the

admission of this evidence appears somewhat or marginally less "unique"

than the evidence involved in Weakley, this matter is not so distinguishable

from that case such that it would compel us to conclude that the trial court's

decision was an abuse of discretion. To be clear, we hold that while the trial

may very well have committed "an error in judgment" in admitting this

evidence under the identity exception to Rule 404(b)(1), that error was

neither "manifestly unreasonable," nor a clear misapplication of the law.

Murray, 83 A.3d at 156. Rather, we deem the trial court's decision to be

within a range wherein reasonable minds can disagree whether the evidence

was sufficiently unique to constitute "identity" evidence. See Grady, 39

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A.2d at 1046 ("An abuse of discretion may not be found merely because an

appellate court might have reached a different conclusion....").

Nevertheless, even if is was a clearly erroneous or manifestly

unreasonable determination that the three contested incidents were

admissible under the identity exception, we would nevertheless decide, sua

sponte, that admission of that evidence constituted harmless error in this

case, for a multiplicity of reasons. "The standard for determining harmless

error was firmly established in Commonwealth v. Story, 476 Pa. 391, 383

A.2d 155 (1978). An error will be deemed harmless where the appellate

court concludes beyond a reasonable doubt that the error could not have

contributed to the verdict. If there is a reasonable possibility that the error

may have contributed to the verdict, it is not harmless." Commonwealth

v. Mitchell, 839 A.2d 202, 214 (Pa. 2003).

First, with regard to all the co-conspirators, this evidence might have

been admissible to show opportunity and/or absence of mistake, especially

the two incidents involving traffic stops where burglary tools were

discovered. Here, a large volume of historical cell phone evidence

demonstrated that Appellant and his cohorts were repeatedly and

consistently in the vicinity of each of the burglaries for which they were

tried, but no evidence could put them precisely inside the businesses which

had been burglarized. Thus, it could be argued, albeit somewhat

unreasonably, that the historical cell phone evidence was merely

coincidental. However, when the same co-conspirators had been previously

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found traveling together with burglary tools, such evidence tends to strongly

show that the historical cell phone evidence did not falsely implicate them by

mere "accident." Their collective possession of burglary tools at earlier

times, whether or not they were arrested during those traffic stops, also

demonstrated, to some extent, the "opportunity" to commit the subsequent

burglaries. Thus, while it may have been difficult to specifically characterize

this prior -bad -acts evidence as precisely falling into one category set forth in

Pa.R.E. 404(b)(2), it did tend to loosely fit the purpose of many of the

enumerated categories of prior -bad -acts exceptions. In this regard, we

reiterate that the list of enumerated exceptions set forth in Pa.R.E.

404(b)(2) is non -exhaustive. See footnote 4, supra.

Second, the evidence in this case was, in fact, overwhelming, albeit

circumstantial, and the potential prejudice deriving from the disputed

evidence was minimal in comparison. Simply put, in aggregate, the

historical cell phone data placing each co-defendant in the vicinity of each

robbery at the time of those robberies was overwhelming evidence of guilt,

especially in light of the fact that Appellant and his co-defendants were

caught fleeing the final burglary (Shell at Top of the 80s Gas Station) in

Appellant's vehicle, which was found to contain burglary tools required for

the manner in which the burglary occurred, as well as some of the items

reported stolen from that location.

Third, with regard to Appellant's specific objections that he was not

directly involved in two of the prior incidents, Appellant is correct that such a

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fact makes that evidence less probative with respect to his own guilt.

However, for the very same reason, that fact also tends to make the

evidence far less prejudicial to him within the context of Rule 404(b). Prior

bad acts are inadmissible "to prove a person's character in order to show

that on a particular occasion the person acted in accordance with the

character." Pa.R.E. 404(b)(2). Evidence of Appellant's co-conspirators' prior

bad acts does not tend to prove or risk adverse jury inferences regarding

Appellant's character, because he was not involved in those incidents.

Appellant does not dispute that the jury was accurately instructed with

regard to the participants of each of those prior events. It appears to this

Court to be quite unlikely that the jury would draw an adverse, illogical

inference regarding Appellant's character from the prior conduct of others.

Accordingly, we hold that the trial court did not abuse its discretion in

admitting the prior -bad -acts evidence in question under the identity

exception because, although we might have arrived at a different conclusion,

the trial court's decision was neither manifestly unreasonable nor a clear

misapplication of the law. In any event, we would conclude that the

admission of this evidence constituted harmless error, beyond a reasonable

doubt, even if it was erroneously admitted.

Finally, Appellant asserts that the trial court abused its discretion by

overruling two separate motions for a mistrial, 1) when the prosecutor,

during his opening statement, referred to prior unlawful activity by Appellant

and his co-conspirators in Maryland; and 2) when a Commonwealth witness,

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Detective Kreller, alluded to prior unlawful activity by Appellant and his co-

conspirators in Maryland. Appellant asserts that, on both occasions, the

Commonwealth exceeded the bounds set by the trial court in its pretrial

rulings on the motions in limine filed by the parties.

"The grant of a mistrial is within the sound discretion of the trial judge.

A mistrial is required only when an incident is of such a nature that its

unavoidable effect is to deprive appellant of a fair trial." Commonwealth v.

Crawley, 526 A.2d 334, 342 (Pa. 1987) (internal citations and quotation

marks omitted). Even assuming these two events exceed the bounds of the

pretrial orders,5 the Commonwealth argues that any such error was

5

Appellant does not direct this Court's attention to where in the record such

pretrial rulings or restrictions can be found. While it is apparent that the

trial court granted the Commonwealth's motion in limine, thereby permitting

evidence regarding the prior -bad -acts evidence discussed above, this Court

could not locate the order in question in the certified record. However, the

basic nature of that order in not in dispute. By inference, therefore, the

Commonwealth was not permitted to admit evidence of other prior bad acts.

Moreover, immediately prior to trial, Appellant and his co-defendants raised

an oral motion in limine regarding the ROPE team's acronym moniker, which

means "Repeat Offender Proactive Enforcement." The defendants objected

"because of the prejudice it would call into the jury's mind regarding our

clients and their prior criminal histories." N.T., 1/22/16, at 7. In response,

the prosecutor stated that, "[a]bsent any door opening on the defense's

side, the only plans for introducing prior bad acts or prior history would be

the information that we've already moved for 404(b) admission, those things

that were included in the ROPE [team's] dossier and those would be the

things that we would be seeking to enter into evidence at trial." Id. at 9.

The trial court responded, e[v]ery well," indicating that it was granting the

oral motion in limine. Thus, any other prior -bad -acts evidence other than

the three events discussed above were effectively precluded as a result of

the court's granting of these two motions in limine.

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harmless, in both instances, and did not amount to prejudice "of such a

nature that its unavoidable effect is to deprive appellant of a fair trial."

Crawley, 526 A.2d at 342. For the reasons that follow, we agree with the

Commonwealth.

The first ostensible breach of the motions in limine occurred during the

Commonwealth's opening statement to the jury. At that time, the

prosecutor described the ROPE team as follows:

It's a proactive enforcement team funded by the county

down there who keeps dossiers of people who may have prior

circumstances that might mirror these situations.

And what you'll hear from them is that they had dossiers

on at least two of these individuals having substantially similar

tools to the type that would have committed these types of

burglaries in 2009 and 2010.

[The prosecutor then describes two of the prior -bad -act events

that were deemed admissible by the trial court.]

As you'll hear, the ROPE team, the other jobthat they do

on top of keeping dossiers is to surveil. They are a proactive

team. They're not somebody who looks at crimes that have

happened like most law enforcement. No, they're active.

N.T., 1/22/16, at 49-50.

Appellant and his co-defendants objected and requested a mistrial

following the prosecutor's opening statement, on the basis that the

prosecutor had made multiple references to "dossiers" on the defendants.

The prosecutor argued that the term "dossiers" was only referring to the two

prior -bad -act events which had been deemed admissible by the trial court,

explaining, "I didn't make any reference to any prior burglaries that would

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have been conducted or criminal history...." Id. at 57. The defendants

countered that "calling them dossiers that they have on the individuals, that

is highly inflammatory and would lead the jury to believe that they have

records and other backgrounds beyond the limited items that this Honorable

Court allowed to come in under 404(b)." Id. The trial court denied the

defendants' motion for mistrial. Id. at 58.

While the prosecutor's reference to "dossiers" was somewhat

ambiguous, he did not explicitly refer to any prior bad acts beyond those

deemed admissible. Appellant would have this Court conclude that such

ambiguity necessarily infected the jury with the worst possible inference,

that the "dossiers" in question involved evidence of criminal activity beyond

what was directly suggested in his remarks. However, we are under no

obligation to assume that was the case. As the United States Supreme

Court has stated with regard to an ambiguous statement during a

prosecutor's closing remarks:

The 'consistent and repeated misrepresentation' of a dramatic

exhibit in evidence may profoundly impress a jury and may have

a significant impact on the jury's deliberations. Isolated

passages of a prosecutor's argument, billed in advance to the

jury as a matter of opinion not of evidence, do not reach the

same proportions. Such arguments, like all closing arguments of

counsel, are seldom carefully constructed in toto before the

event; improvisation frequently results in syntax left imperfect

and meaning less than crystal clear. While these general

observations in no way justify prosecutorial misconduct, they do

suggest that a court should not lightly infer that a prosecutor

intends an ambiguous remark to have its most damaging

meaning or that a jury, sitting through lengthy exhortation, will

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draw that meaning from the plethora of less damaging

interpretations.

Donnelly v. DeChristoforo, 416 U.S. 637,646-47 (1974).

Here, while it may have constituted misconduct for the prosecutor to

carelessly use the term "dossiers," it is clear in this context that he intended

to refer to the already -deemed admissible, prior -bad -acts evidence, and no

more. That clarity arises not just from the prosecutor's subsequent defense

of his statement, but also flows from the statement itself. Most importantly,

we do not view that statement as inflammatory to such an extent that

Appellant was deprived of a fair trial because of it. Therefore, we conclude

that the trial court did not abuse its discretion when it declined to grant a

mistrial on that basis.

The second ostensible breach of the motions in limine occurred during

the testimony of Detective Kreller. In his brief, Appellant states that

Detective Kreller "revealed that his unit was investigating the defendants for

activities in addition to the instances that were the subject of the [c]ourt's

pretrial ruling." Appellant's Brief at 64. Appellant also provides a page

number for the apparent offense. Id. (citing N.T., 1/28/16, at 941-42).

However, nowhere in Appellant's brief does he explain how Kreller's

testimony breached the pretrial rulings, nor is such a breach immediately

apparent to this Court from our reading of the cited pages, as no objection

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was lodged immediately.6 Presumably, Appellant takes issue with Detective

Kreller's statement that there was "probable cause that dates back a long

time prior to this actual case ... from prior cases dating back to 2009 [and]

2010." N.T., 1/28/16, at 941. Detective Kreller then identifies those "cases"

as being from Walkersville, Maryland, in 2010, and Frederick County, in

2009. Id. at 942. Those dates correspond with the admissible prior -bad -

acts evidence, but not with the locations of those events. The trial court

denied Appellant's motion for a mistrial, but stated:

I'll deny the motion for now. However, 404(b) has gone far

beyond what I thought it was going to be.

I just want -- the only testimony I want to hear these guys

is

following this crew from Maryland up here and that's it. Nothing

else.

Id. at 957.

This breach appears somewhat more egregious than the prosecutor's

statement during his opening argument. While the term "dossiers' was

patently ambiguous with respect to whether it implied prior criminal conduct,

Detective Kreller's use of the term, "probable cause" in this instance, was far

less so. The use of that term certainly indicated that some sort of prior

criminal investigation was being referenced, as "probable cause" is not a

term typically used outside of the criminal context.

6 Several questions later, Appellant's trial counsel objected, but the basis for

the objection does not appear on the record. Id. at 943. Indeed, the

request for a mistrial did not occur until direct examination of Detective

Kreller ended. Id. at 956.

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However, we observe that no details of any sort regarding those

investigations, beyond a general date and general location, were mentioned

by Detective Kreller. There was no mention of who, specifically, was the

target of the prior investigation(s), what specific or general type of crime(s)

had been involved, what facts led to a finding of probable cause, nor

whether those investigations bore any fruit in terms of an arrest or

conviction. Thus, we agree with Appellant that Detective Kreller's testimony

was clearly outside the scope permitted by the trial court's pretrial orders.

Nevertheless, "[t]here is no per se rule requiring a new trial every time

there is a reference to prior criminal activity." Commonwealth v.

Sanchez, 595 A.2d 617, 620 (Pa. Super. 1991). For instance, in Sanchez,

the prosecutor made repeated references to the defendant's status as an

illegal alien in his trial on drug charges. We held that "the jury could

reasonably infer that Sanchez had engaged in illegal conduct in the past"

from those statements, and thus Sanchez's objection was warranted. Id.

Nevertheless, we found that the error was harmless, because "the evidence

of guilt [was] overwhelming[,]" and "the isolated reference to Sanchez as an

illegal alien [was] totally inconsequential." Id. at 622.

Here, Appellant contends that Detective Kreller's referencing of a prior

criminal investigation was reversible error, and should have resulted in a

mistrial, particularly since the matter had been the subject of multiple

pretrial rulings on both the defense's and prosecution's motions in limine.

Appellant's Brief at 65-67. Appellant analyzes only one case in support of

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his argument, Commonwealth v. Padilla, 923 A.2d 1189 (Pa. Super.

2007).

In Padilla, the defendant, 21 years old at the time of his crime, was

convicted of committing sexual offenses against a 15-year-old.7 Prior to

trial, Padilla filed a motion in limine "to preclude evidence of his prior

incarceration and parole status, the issuance of a PFA order against him, and

his use of marijuana." Id. at 1192. Nevertheless, "in response to an open-

ended question about what he found when he arrived at the scene[,]" a

police officer testified as follows:

When I got there I found-I was met at the door by the mother

who was very upset, yelling and carrying on, practically mad at

me, but she started to tell me how everybody was downstairs.

She went and picked up this guy [Appellant]. He's a family

friend. Apparently he just got out of jail, and so she was doing

him a favor.

Id.

The defense immediately objected and requested a mistrial, and

although the trial court initially appeared inclined to grant it, it instead

issued a curative instruction and put off declaring a mistrial until the

following day, affording the parties the opportunity to seek case authority

supporting their positions. After arguments were heard the following

morning, the trial court ultimately denied the motion for a mistrial.

The victim admitted that the sexual relations were consensual; however,

the age gap between the two did not permit legal recognition of her consent.

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On appeal, we reversed, determining that the officer's statement was

clearly prejudicial because the trial court had entered an "explicit order that

no reference whatsoever must be made to [Appellant's] time in jail." Id. at

1193. The Padilla Court went on to determine whether that prejudice was

cured by the instruction, and determined that it was not:

Based on our review of the trial transcript, we find the

circumstances surrounding the court's ruling to be troubling and

the instruction itself too vague to have cured the prejudice. The

trial court had granted [Padilla's] motion in limine and, upon

violation of its order, agreed to a mistrial. Pressed by the

prosecutor, however, the trial court instead opted to give a

cautionary instruction and await further argument. The record

suggests that the jury may have heard the side bar conference

during which the trial court reversed itself. Moreover, the trial

court's instruction did not specifically direct the jury to disregard

Officer Bealer's remark, "Apparently he just got out of jail."

Then, despite the instruction, the prosecutor resumed his

examination of Officer Bealer by repeating the officer's testimony

that "Mom was upset," thereby allowing the jury to hear again

testimony the trial court had just instructed them to disregard.

The purpose of a pretrial motion in limine is to prevent

prejudicial evidence from reaching the jury, based on the theory

that "once the 'skunk is in the box,' the odor is ineradicable."

Given the circumstances in this case, we conclude that the

only remedy available to remove the prejudice to [Padilla] was

for the trial court to declare a mistrial and to relist the case for

trial before a different jury. Because the trial court failed to

employ this remedy to dissipate the prejudice that accrued to

[Padilla] as a result of the trial court's ruling regarding Officer

Bealer's testimony, [Padilla] is entitled to a new trial.

Id. at 1196 (emphasis added).

As noted above, Appellant focuses his argument on the fact that the

motions in limine in this case had precluded any other prior -bad -acts

evidence. To the extent that Appellant contends the existence of those

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pretrial rulings is a significant factor in our analysis of the resulting prejudice

from Detective Kreller's testimony, we agree that Padilla stands for that

proposition. However, to the extent he implies by his argument that it is the

only factor we should or can consider, we disagree.

The Padilla Court's prejudice analysis was not limited to the fact that

a pretrial ruling had precluded the at -issue testimony. The Court also

considered that the jury had overheard the side bar conference addressing

the matter, the inadequacy of the curative instruction issued, and the

subsequent questioning by the prosecutor. As such, while important, the

existence of a relevant pretrial order prohibiting the prejudicial remarks

which subsequently occurred at trial does not automatically preclude a

determination that the error was harmless.

Indeed, in Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa.

Super. 2008), the defendant filed, and the trial court granted, "a motion in

limine seeking the preclusion of any evidence of [his] prior convictions."

Nevertheless, at trial, a witness testified that the defendant "had to go see

his parole officer or probation officer." Id. Following an objection, the trial

court immediately issued a curative instruction. On appeal, this Court held

that:

Based upon this record, we conclude that [the] testimony

regarding Hudson's probation or parole officer was

inadvertent, even when viewed in light of Hudson's motion

in limine. The prosecutor did not ask a question that could

have been reasonably foreseen to elicit evidence of

Hudson's prior criminal activities. Furthermore, [the]

testimony constituted a mere passing reference to

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Hudson's prior criminal activity that the trial court's

cautionary instruction adequately cured. Judge Johnson

not only clearly instructed the jury to disregard the

testimony when deliberating on the verdict, he also

expressly instructed them that they had no basis upon

which to determine whether the testimony itself was true.

When viewed in light of the substantial circumstantial

evidence presented by the Commonwealth at trial

indicating Hudson's guilt, we conclude that Hudson did not

suffer improper prejudice from this reference to his prior

criminal activity.

Id. at 1035.

We find that this case is distinguishable from Padilla on the facts, and

more in line with our decision in Hudson. The pretrial motions in this case

did not constitute an absolute ban on prior -bad -acts evidence, unlike in

Padilla, where there was an absolute and specific bar to any mention of

Padilla's prior incarceration. Here, the pretrial motions permitted some, but

not all, of the defendants' prior bad acts. In Padilla, the officer directly

mentioned Padilla's prior incarceration. In this case, however, Detective

Kreller mentioned "probable cause," thus alluding to a prior investigation,

but not necessarily a prior conviction, or even charges for prior criminal

misconduct, and none of the defendants were specified in Detective Kreller's

remarks.

Furthermore, because other prior -bad -acts evidence was deemed

admissible in this case, any additional prejudice resulting from Detective

Kreller's remarks was necessarily minimal in comparison. See

Commonwealth v. Fell, 309 A.2d 417, 420 (Pa. 1973) (holding prejudice

from erroneously admitted evidence was harmless where it was cumulative

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of properly admitted evidence). While substantial evidence and testimony

was heard regarding the other prior -bad -acts evidence in this case over the

course of a two-week trial, Detective Kreller's objectionable remarks were

relatively brief and inconsequential. No comparable circumstances existed in

Padilla.

Moreover, unlike what occurred in Padilla, there is no indication that

the jury in this case overheard counsel's arguments regarding Detective

Kreller's statements. While the trial court in this case did admonish the

prosecutor for failing to adhere to the terms of the pretrial orders, the court

did not vacillate between granting and denying the motion for a mistrial.

Here, as in Hudson, there does not appear to be any deliberate

attempt by the prosecutor to elicit the at -issue remarks by Detective Kreller.

Indeed, in Appellant's brief, he makes no attempt to claim the remarks were

elicited. Moreover, because neither Appellant nor his co-defendants

immediately objected to Detective Kreller's remarks, but instead at the end

of his testimony (which did occur soon thereafter), the jury's attention was

unlikely to have been drawn to them.

Finally, the evidence presented by the Commonwealth in this case was

overwhelming and uncontroverted. The GPS and historical cell phone data

evidence, alone, was compelling evidence of the defendants' guilt. The

prior -bad -acts evidence, in conjunction with the evidence demonstrating a

common modus operandi for each burglary, demonstrated that Appellant

and his cohorts engaged in a long-term, sophisticated conspiracy to

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burglarize multiple gas stations and similar establishments. Accordingly, for

these reasons, we conclude that Detective Kreller's remarks were also

harmless error, and/or that they were not "of such a nature that [their]

unavoidable effect [was] to deprive [A]ppellant of a fair trial." Crawley,

526 A.2d at 342.

Judgment of sentence affirmed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 8/1/2017

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