Com. v. Murray, A.

J-S02034-17

2017 PA Super 363

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

ABDUL MURRAY

Appellant No. 3010 EDA 2015

Appeal from the Judgment of Sentence April 30, 2015

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0001435-2013

BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MOULTON, J.

OPINION BY MOULTON, J.: FILED NOVEMBER 15, 2017

Abdul Murray appeals from the April 30, 2015 judgment of sentence

imposed by the Philadelphia County Court of Common Pleas following Murray’s

conviction for possession of a firearm by a prohibited person, 18 Pa.C.S. §

6105(a)(1). We affirm.

The trial court set forth the following facts:

Pennsylvania Parole Agent Todd Clark testified that one

of the parolees he was responsible for supervising starting

in December 2012 was Defendant Abdul Murray. In

response to [Murray’s] failure to report for a scheduled

meeting at the parole office, Agent Clark went to [Murray’s]

residence at 1247 West Huntingdon Street in Philadelphia,

a group home that housed a number of parolees.

[Murray] was not present, so Agent Clark left him a

written instruction to report to the parole office on January

11, 2013. On January 11, 2013, [Murray] reported to the

parole office, at which time Agent Clark scheduled a home

visit for January 15, 2013.

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On January 15, 201[3],[1] Agent Clark went to the

scheduled home visit, but [Murray] was not present. The

following day Agent Clark received a phone call from . . .

one of the managers of the group home in which [Murray]

resided. Based on the information received, Agent Clark

spoke to [Murray] by phone and directed him to report to

the parole office that day.

When [Murray] reported to the parole office, Agent Clark

asked him about his living situation and why he had moved

without permission. [Murray] explained that on January 11,

2013, a housemate known as “E” or Ervin threatened

[Murray] with a black .357 revolver, which [Murray]

managed to wrest away from Ervin. [Murray] then gave the

gun to an acquaintance identified as Jay or “J”.

Based upon the acknowledgement of possession of a

firearm, a violation of the condition of [Murray’s]

supervision, Agent Clark took [Murray] into custody, and

proceeded to review the text messages on [Murray’s]

phone. Agent Clark identified two relevant messages dated

January 16, 2013 sent within less than a minute of each

other:

Yo, Kel if you didn’t hear from me by tonight I am

locked up. So, my stuff is over 1247 West

Huntingdon Street.

And the thing I was telling you about that I took

from the bully is in the bathroom right under the

tub.

Agent Clark then went to the group home at 1247 West

Huntingdon Street where [Murray] had been residing. He

was permitted entry to the property and searched the

bathroom. Under the tub he located a loose piece of metal,

behind which Agent Clark found a bag with an unloaded .357

revolver. Agent Clark called police and turned over the gun

to police custody.

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1The trial court inadvertently wrote “2014” instead of “2013” in its

opinion.

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Seven months after he allegedly attacked [Murray], Ervin

Bonner (“E”) attacked another man, Michael Johnson, with

a gun at another recovery house. Bonner was arrested on

July 18, 2013 for his attack on Mr. Johnson.

Memorandum Opinion, 3/7/16, at 2-4 (“1925(a) Op.”) (internal citations

omitted).

Murray filed two motions in limine before trial. In the first motion,

Murray sought to suppress his statements to Agent Clark and the evidence

obtained from the warrantless search of his cell phone. In the second motion,

Murray sought to preclude the introduction of his statements to Agent Clark

at trial under the corpus delicti rule. Both motions were heard and denied by

the Honorable Susan I. Schulman. Murray then orally moved to recuse Judge

Shulman, who granted the motion.

On September 11, 2014, Murray proceeded to a non-jury trial before

the Honorable Giovanni Campbell. At the conclusion of the trial, the trial court

held the verdict under advisement. On October 15, 2014, the trial court found

Murray guilty of possession of a firearm by a prohibited person. On December

14, 2014, Murray filed a motion for extraordinary relief, alleging that his trial

counsel was ineffective for failing to adequately investigate Murray’s

justification defense. The trial court appointed new counsel, who filed an

amended motion for extraordinary relief. The trial court denied the motion on

February 29, 2015.

On April 30, 2015, the trial court sentenced Murray to 4½ to 9 years’

incarceration. Murray timely filed post-sentence motions, which were denied

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by operation of law on September 4, 2015. On September 30, 2015, Murray

timely appealed to this Court.

Murray raises the following issues on appeal:

I. Did the Commonwealth violate Brady v. Maryland[2]

by failing to disclose the identity of the attacker who

earlier pulled a gun on [Murray], as well as the

identi[t]y of another victim who previously accused

the same attacker of pulling a gun on him?

Furthermore, did the Commonwealth continue the

violation by failing to disclose the allegation made by

the other victim to the Philadelphia Police Department

and the resultant charges that the Commonwealth

brought against the attacker?

II. Are the identities of Ervin Bonner, Michael Johnson

and Rashod Green—as well as the allegations made

by Mr. Johnson and the charges against Bonner—

after-discovered evidence entitling [Murray] to a new

trial?

III. Did the Commonwealth fail to satisfy the corpus

del[i]cti rule prior to introducing [Murray’s]

statements to Agent Clark where it failed to

establish[] that a crime was committed prior to

offering Agent Clark to testify as to [Murray’s]

statements?

IV. Should all evidence recovered from [Murray’s] cell

phone have been suppressed, because Agent Clark

undoubtedly failed to satisfy the simple requirement

of him—get a warrant?

V. Did the Commonwealth fail to offer sufficient evidence

to authenticate certain text messages that it offered

into evidence?

Murray’s Br. at 4 (trial court answers omitted).

____________________________________________

2 373 U.S. 83 (1963).

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First, Murray asserts that the Commonwealth violated Brady by failing

to disclose to the defense Bonner’s identity and subsequent arrest for an

allegedly similar incident before trial. We disagree.

Brady requires the prosecution to disclose all exculpatory information

material to the defendant’s guilt or punishment, including impeachment

evidence. Commonwealth v. Ovalles, 144 A.3d 957, 965 (Pa.Super. 2016).

To establish a Brady violation, the defendant has the burden of proving that:

(1) the evidence at issue was favorable to the defendant, either as exculpatory

or impeachment evidence; (2) the evidence was suppressed by the

prosecution, either willfully or inadvertently; and (3) the defendant was

prejudiced. Id.

Here, the record established that Murray’s counsel knew Bonner’s

identity before trial. In his December 24, 2014 motion for extraordinary relief,

Murray averred:

Prior to trial, defense counsel had in their

possession the name and former address of the

individual who introduced the gun in question into

[Murray’s] life in the first place. In spite of having this

information available, counsel failed to research this

individual’s criminal background to determine whether

threatening other residents in the rooming house where he

lived was part of some common plan and scheme on the

part of Mr. Bonner.

Murray’s Mot. for Extraordinary Relief, 12/24/14, ¶ 11 (emphasis added). It

is well settled that “Brady is not violated when the appellant knew or, with

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

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the evidence was available to the defense from other sources.” Ovalles, 144

A.3d at 965.

Moreover, Murray failed to establish that the Commonwealth withheld

evidence of Bonner’s subsequent criminal conduct. In his motion for

extraordinary relief, Murray notified the Commonwealth that Bonner had been

arrested for an allegedly similar incident, attaching the arrest report for

Bonner’s criminal case to the motion. See Murray’s Mot. for Extraordinary

Relief, 12/24/14, Ex. A. The Defender Association of Philadelphia, which

represented Murray at that time, also represented Bonner. See id., Ex. B.

The Commonwealth cannot be charged with failing to disclose information that

was readily available to the defense. See Commonwealth v. Grant, 813

A.2d 726, 730 (Pa. 2002) (rejecting Brady claim regarding prosecution

witness’s additional crimen falsi convictions where defendant was represented

by public defender at trial, public defender’s office uncovered evidence after

trial, and defendant failed “to explain why the public defender could not have

procured this same information before or during trial”). Therefore, Murray’s

Brady claim lacks merit.

To the extent Murray argues that his trial counsel was ineffective for

failing to properly investigate Bonner’s identity and criminal background

before trial, we agree with the trial court that such a claim is properly deferred

to collateral review. See 1925(a) Op. at 9 (“[T]he PCRA is the appropriate

vehicle for raising the challenges [to counsel’s ineffectiveness] and conducting

the inquiry into the failure to investigate . . . .”). Absent extraordinary

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circumstances, which do not exist here, “claims of ineffective assistance of

counsel are to be deferred to PCRA review . . . and such claims should not be

reviewed upon direct appeal.” Commonwealth v. Holmes, 79 A.3d 562,

576 (Pa. 2013).

Second, Murray asserts that the trial court erred in denying his motion

for a new trial based on after-discovered evidence. Murray claims that the

identities of Bonner, Johnson, and Green, as well as Bonner’s subsequent

arrest for a similar incident, qualify as “new” evidence entitling him to a new

trial. We disagree.

To obtain a new trial based on after-discovered evidence, the defendant

must prove, by a preponderance of the evidence, that the evidence: (1) could

not have been obtained before the conclusion of trial by the exercise of

reasonable diligence; (2) is not merely corroborative or cumulative; (3) will

not be used solely to impeach a witness’s credibility; and (4) would likely

result in a different verdict. Commonwealth v. Pagan, 950 A.2d 270, 292

(Pa. 2008); see Pa.R.Crim.P. 720(c). As discussed above, Murray’s counsel

knew Bonner’s identity before trial and could have uncovered Bonner’s

criminal record, given that both Murray and Bonner were represented by the

Defender Association at that time. Therefore, because Murray could have

obtained the evidence before trial by exercising reasonable diligence, he failed

to satisfy the first prong of an after-discovered evidence claim.

Third, Murray asserts that the trial court erred in admitting his

statements to Agent Clark at trial in violation of the corpus delicti rule. Murray

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argues that the Commonwealth failed to establish the corpus delicti of

possession of a firearm by a prohibited person before admitting Murray’s

statements about the gun. We disagree.

The corpus delicti rule involves the admissibility of evidence, which we

review for an abuse of discretion. Commonwealth v. Dupre, 866 A.2d 1089,

1097 (Pa.Super. 2005). “The corpus [delicti] . . . rule places the burden on

the prosecution to establish that a crime has actually occurred before a

confession or admission of the accused connecting him to the crime can be

admitted.” Id. (quoting Commonwealth v. Rivera, 828 A.2d 1094, 1103

(Pa.Super. 2003)). “The Commonwealth need not prove the existence of a

crime beyond a reasonable doubt as an element in establishing the corpus

delicti of a crime, but the evidence must be more consistent with a crime than

with [an] accident.” Id. at 1098. The corpus delicti, or “body of the crime,”

may be proven by circumstantial evidence. Commonwealth v. Hogans, 584

A.2d 347, 349 (Pa. Super. 1990).

Our Court has explained:

Establishing the corpus delicti in Pennsylvania is a two-step

process. The first step concerns the trial judge’s admission

of the accused’s statements and the second step concerns

the fact finder’s consideration of those statements. In order

for the statement to be admitted, the Commonwealth must

prove the corpus delicti by a preponderance of the evidence.

In order for the statement to be considered by the fact

finder, the Commonwealth must establish the corpus delicti

beyond a reasonable doubt.

Commonwealth v. Young, 904 A.2d 947, 956 (Pa.Super. 2006) (quoting

Rivera, 828 A.2d at 1104 n.10).

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Here, the trial court found sufficient evidence to support the admission

of Murray’s statements under the corpus delicti rule. At the suppression

hearing, Agent Clark testified that he discovered an operable gun concealed

in a communal bathroom inside a boarding house where Murray and other

parolees lived. N.T., 1/2/14, at 25-26. The gun was hidden inside a plastic

bag and under a bathtub in the only bathroom in the boarding house. See

id. We agree with the trial court that the evidence of a concealed weapon

inside a parolee boarding house was more consistent with criminal activity

than with an accident. That the gun was secreted in such a manner suggests

that the person who placed it there did not lawfully possess it. We conclude

that even without Murray’s statements, the Commonwealth established, by a

preponderance of the evidence, the corpus delicti of possession of a firearm

by a prohibited person. Therefore, the trial court did not abuse its discretion

in admitting Murray’s statements.

Fourth, Murray asserts that the trial court erred in admitting the text

messages recovered from his cell phone because Agent Clark failed to obtain

a warrant before searching his phone. Murray relies on Riley v. California,

134 S.Ct. 2473, 2495 (2014), in which the United States Supreme Court held

that the Fourth Amendment to the Unites States Constitution generally

requires police to obtain a warrant before searching a cell phone incident to

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an arrest.3 In response, the Commonwealth argues that Riley’s holding does

not apply to parolees such as Murray because parolees have a diminished

expectation of privacy.

As the Commonwealth points out, Riley did not address parole

searches. To date, this Court has applied Riley only to cases involving a

search incident to an arrest of a non-parolee. See Commonwealth v. Stem,

96 A.3d 407, 414 (Pa.Super. 2014) (“In light of the [Supreme] Court’s

decision in Riley, the [warrantless] search of Stem’s cellular telephone

undoubtedly was unconstitutional.”); see also Commonwealth v. Mosley,

114 A.3d 1072, 1081 (Pa.Super. 2015) (concluding that where police officer

failed to obtain search warrant before viewing text messages on cell phone

seized incident to Mosley’s arrest, any improper viewing of messages was

harmless error “because a valid warrant was subsequently issued to search

the phone[]”), app. denied, 166 A.3d 1215 (Pa. 2017). We have found no

Pennsylvania appellate decision addressing Riley’s application to parole

searches.4

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Riley was decided on June 25, 2014, shortly after Judge Shulman

3

denied Murray’s motion to suppress the text messages. On July 29, 2014,

Murray filed a motion for reconsideration based on the Riley decision, which

Judge Shulman denied after a hearing on August 11, 2014.

Several federal courts that have addressed this issue following Riley

4

have concluded that Riley’s holding is inapplicable to parole searches. See,

e.g., United States v. Luna, 602 Fed.Appx. 363, 365 (9th Cir.) (holding that

warrantless search of parolee’s cell phone “was a constitutional parole

search”), cert. denied, 136 S.Ct. 102 (2015); United States v. Johnson,

579 Fed.Appx. 920, 926 n.6 (11th Cir. 2014) (“Riley . . . has no application

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We agree with the Commonwealth that Riley is inapplicable to this case

because of Murray’s status as a parolee. It is well settled that “[i]n exchange

for early release from prison, the parolee cedes away certain constitutional

protections enjoyed by the populace in general.” Commonwealth v.

Edwards, 874 A.2d 1192, 1197 (Pa.Super. 2005). “Because the very

assumption of the institution of parole is that the parolee is more likely than

the ordinary citizen to violate the law, the [parole] agents need not have

probable cause to search a parolee or his property; instead reasonable

suspicion is sufficient to authorize a search.” Commonwealth v. Curry,

900 A.2d 390, 394 (Pa.Super. 2006) (emphasis added; internal quotations

omitted).

In Pennsylvania, a search of a parolee’s property will be deemed

reasonable if the evidence shows that: (1) the parole officer had reasonable

____________________________________________

to the instant case because here [the defendant] waived his Fourth

Amendment rights as a condition of parole.”); United States v. Johnson,

No. 14–CR–00412–TEH, 2015 WL 4776096, at *3 (N.D.Cal. Aug. 13, 2015)

(“[E]very federal court that has addressed the application of the parole search

exception in the wake of Riley has found that the exception remains valid.”);

United States v. Martinez, No. CR 13–00794 WHA, 2014 WL 3956677, at

*3 (N.D.Cal. Aug. 12, 2014) (concluding that Riley was “inapplicable to [the

defendant] because he was on parole and was subject to a parole search

condition”); United States v. Dahl, 64 F.Supp.3d 659, 661-64 (E.D.Pa.

2014) (holding that warrantless search of probationer’s cell phone was proper

where probation officer had reasonable suspicion of probation violation under

Delaware law). But see United States v. Lara, 815 F.3d 605, 612-13 (9th

Cir. 2016) (concluding that warrantless search of probationer’s cell phone was

unconstitutional where condition in probation order did not clearly encompass

search of cell phone and its data and search did not promote legitimate

governmental interest of combatting recidivism because probationer was

convicted of non-violent drug offense and had merely missed his meeting with

probation officer).

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suspicion that the parolee committed a parole violation; and (2) the search

was reasonably related to the parole officer’s duty. Commonwealth v.

Williams, 692 A.2d 1031, 1036 (Pa. 1997); see 61 Pa.C.S. § 6153(d)(2)

(stating that parole agent may search parolee’s property if agent has

reasonable suspicion to believe that property in parolee’s possession “contains

contraband or other evidence of violations of the conditions of supervision”).

Parole agents with the requisite reasonable suspicion need not obtain a

warrant to search a parolee’s property. See Curry, 900 A.2d at 394. To

determine whether reasonable suspicion exists in this context, we consider

the following factors:

(i) The observations of agents.

(ii) Information provided by others.

(iii) The activities of the offender.

(iv) Information provided by the offender.

(v) The experience of agents with the offender.

(vi) The experience of agents in similar circumstances.

(vii) The prior criminal and supervisory history of the

offender.

(viii) The need to verify compliance with the conditions of

supervision.

61 Pa.C.S. § 6153(d)(6).

Here, the evidence established that Agent Clark’s search of Murray’s cell

phone was based on reasonable suspicion that Murray had committed a parole

violation. At the suppression hearing, Agent Clark testified that Murray

admitted to possessing a firearm after an altercation with a housemate, which

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was a violation of Murray’s parole. N.T., 1/2/14, at 18-19. Agent Clark also

testified that based on his prior experience, he believed Murray’s cell phone

could contain additional evidence of a parole violation, such as “conversations

in reference to the firearm that [Murray] was speaking about” or “photographs

of [Murray] with the firearm.” Id. at 21-22, 29-30.5 Accordingly, we conclude

that Agent Clark’s search of Murray’s cell phone for text messages and photos

was reasonably related to his duty to investigate a suspected parole violation.

See Commonwealth v. Colon, 31 A.3d 309, 316 (Pa.Super. 2011);

Commonwealth v. Koehler, 914 A.2d 427, 434 (Pa.Super. 2006).

Finally, Murray asserts that the Commonwealth failed to properly

authenticate the text messages recovered from his cell phone before offering

them into evidence. We disagree.

“Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.” In Interest of F.P., 878 A.2d 91, 94 (Pa.Super. 2005).

Electronic communications, such as text messages, must be authenticated

prior to their admission. See Commonwealth v. Koch, 39 A.3d 996, 1002-

03 (Pa.Super. 2011), aff’d by an equally divided court, 106 A.3d 705 (Pa.

2014). “[P]roof of any circumstances which will support a finding that the

writing is genuine will suffice to authenticate the writing.” F.P., 878 A.2d at

94.

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As the concurring opinion correctly observes, “[w]e are not faced here

5

with a bald assertion, based on an agent’s experience, that cell phones often

contain relevant evidence.” Concurring Op. at 1.

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Under Pennsylvania Rule of Evidence 901, text messages may be

authenticated by: (1) testimony from either the author or the sender; (2)

circumstantial evidence, including “distinctive characteristics” like information

specifying the author-sender or “reference to or correspondence with relevant

events” preceding or following the message; or (3) “any other facts or aspects

of the [message] that signify it to be what its proponent claims.”

Commonwealth v. Koch, 106 A.3d 705, 712-13 (Pa. 2014) (Castille, C.J.,

in support of affirmance); see Commonwealth v. Collins, 957 A.2d 237,

265-66 (Pa. 2008). Further, “[a]uthentication generally entails a relatively

low burden of proof; in the words of Rule 901 itself, simply ‘evidence sufficient

to support a finding that the item is what the proponent claims.’” Koch, 106

A.3d at 713 (quoting Pa.R.E. 901(a)).

The trial court determined that the text messages in question were

properly authenticated based on the contextual clues in the messages and the

fact that Agent Clark retrieved the phone from Murray’s person:6

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Although Murray argues in his brief that the Commonwealth failed to

6

prove that the cell phone in question was Murray’s phone, Murray’s Br. at 27-

28, the record belies this claim. Agent Clark testified at the suppression

hearing as follows:

When we took [Murray] into custody I confiscated his cell

phone. After [Murray] was in custody I asked [him] for the

access code to his cell phone. I believe he hesitated. It was

2850. I entered that code to unlock the screen of his cell

phone and I reviewed his text messages.

N.T., 1/2/14, at 19-20; see also Murray’s Post-Sent. Mot., Appx. B at 2.

Moreover, Murray did not contest his possession or ownership of the cell phone

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Here, in addition to the fact that the phone was in

[Murray’s] possession, the content of the message[s],

regarding the sender’s expectation that he might be getting

locked up that day, and alluding . . . to an item taken from

the bully, is consistent with the events and chronology of

[Murray] being ordered to report to his parole agent’s office

within 45 minutes, earlier that same day,2 and [Murray’s]

description of the incident in which he acquired the gun.

2 The time on the messages could not have been

correct, since those times were actually after the time

when Agent Clark recovered the phone from [Murray].

Of course this is impossible, but as the Agent pointed

out, it did not appear that the time on the phone was

set to the correct zone.

1925(a) Op. at 5-6 (citations omitted). The record supports the trial court’s

reasoning. Therefore, the trial court did not abuse its discretion in admitting

the text messages into evidence.

Judgment of sentence affirmed.

President Judge Emeritus Ford Elliott joins this opinion.

Judge Stabile joins this opinion and files a concurring opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/15/2017

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in his motion to suppress, at the suppression hearing, or at trial. Therefore,

he has waived this argument on appeal.

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