Com. v. White, M.

J-S48034-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

MATTHEW WHITE :

:

Appellant : No. 595 EDA 2019

Appeal from the Judgment of Sentence Entered February 7, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at

No(s): CP-51-CR-0001856-2017,

CP-51-CR-0001857-2017

BEFORE: KUNSELMAN, J., KING, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: DECEMBER 29, 2020

Matthew White (Appellant) appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

convictions, at trial docket CP-51-CR-0001856-2017 (Case 1856), of

aggravated assault, robbery,1 and related offenses. He avers the trial court

erred in: (1) consolidating two dockets for trial; (2) admitting Facebook photos

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1 18 Pa.C.S. § 2702(a), 3701(a)(1)(iv). As we discuss infra, Appellant was

also convicted of second-degree murder, 18 Pa.C.S. § 2502(b), and related

offenses at trial docket CP-51-CR-0001857-2017 (Case 1857). He took an

appeal in that case, which was docketed in this Court at 594 EDA 2019.

However, that appeal was dismissed on June 19, 2019, for failure to file a

brief.

J-S48034-20

and telephone records, on the grounds they were not authenticated; and (3)

failing to dismiss the charges due to a Brady2 violation. We affirm.

Appellant was charged at Case 1856 and Case 1857 for separate

offenses committed on consecutive nights. Over Appellant’s objection, the

trial court granted the Commonwealth’s motion to consolidate the two cases

for trial.3 The trial court has noted this case has a “complex procedural

history[, including] one change of trial counsel, three changes in prosecutors,

and five trial date continuances, borne primarily by the Commonwealth’s

inability to provide discovery in a timely manner.” Trial Ct. Op. at 1 n.1.

During or shortly after jury selection, on August 1, 2018, the Commonwealth

provided additional discovery — a photo array (discussed infra). On August

3rd, the trial court conducted a hearing, found the evidence was Brady

material, and continued trial so that Appellant “could review the material in

question and be afforded a fair trial.” Id. at 15-16. The presentation of

evidence commenced almost six months later, around January 28, 2019.

The trial court aptly summarized the evidence for Case 1856:

On January 7, 2017, [Appellant] contacted transgender sex

worker Ramiro Alejandro “Aly” Damian-Lopez via an

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2 Brady v. Maryland, 373 U.S. 83 (1963).

3 The trial court’s opinion states it granted consolidation on March 9, 2018,

the day after the Commonwealth filed a motion for same and Appellant filed

a response. See Trial Ct. Op., 4/12/19, at 1; Trial Docket, at 15

(unpaginated). However, we note, there is no corresponding entry on the trial

docket.

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advertisement placed on backpage.com. After exchanging a

series of text messages, [Appellant] arranged to meet at Damian-

Lopez’s home at 1309 North 52nd Street in West Philadelphia, as

he had done more than five times in the past. Upon arriving . . . ,

[Appellant] sought to speak with Damian-Lopez instead of

purchasing her services, and upon discovering that [Appellant] did

not have money, Damian-Lopez asked him to leave. [N.T.,

1/29/19, at 216-22.]

At approximately 10:00 p.m. on January 8, 2017, Damian-

Lopez and transgender housemates Miayanna Brooks and Saleem

Singleton, who also performed sex work, were watching a movie

in Damian-Lopez’s bedroom. . . . Singleton went to the kitchen

and [saw Appellant outside the window,] trying to get Singleton’s

attention . . . . [N.T., 1/29/19, at 11-12, 83-90, 222-23.]

After [Appellant] mentioned Damian-Lopez’s name, Singleton

opened the front door and asked him whether Damian-Lopez knew

he was there. Without answering, [Appellant] pushed Singleton

into the kitchen, pressed a 9mm pistol against Singleton’s ribs,

and warned, “Don’t fucking scream.” [Appellant] forced Singleton

into Singleton’s bedroom and demanded money. There, he stole

$70 from the dresser and a cell phone from Singleton’s purse.

Then, [Appellant] pointed his gun to the back of Singleton’s head

and forced Singleton to escort him to Damian-Lopez’s bedroom.

[N.T., 1/29/19, at 91-101.]

At [Appellant’s] behest, Singleton knocked on Damian-

Lopez’s door and asked her to slide approximately $40 under the

door. As Damian-Lopez attempted to retrieve the money,

[Appellant] forced open the door and pushed Singleton into the

room. Holding Brooks, Singleton, and Damian-Lopez at gunpoint,

[Appellant] demanded money, cell phones, and marijuana. As

Damian-Lopez, who recognized [Appellant] as a previous

customer, searched for money, [Appellant] forced Brooks and

Singleton to sit on the ground and stole two cell phones from the

bed and approximately $300-$400 from Damian-Lopez. Using his

gun to direct them, [Appellant] forced Brooks, Singleton, and

Damian-Lopez to crawl back into the kitchen, where he told them

that they were “too pretty to kill” and exited through the front

door. [N.T. 1/29/19, at 16-20, 100-13, 222-32.]

Brooks chased after [Appellant] to the parking lot outside the

JSSK Laundromat across the road at 1300 North 52nd Street,

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where Brooks yelled, “You fucking pussy.” Upon hearing this,

[Appellant] turned around and fired at Brooks, but missed. This

encounter was captured by the laundromat’s security cameras.

[N.T., 1/29/19, at 19 -20; Commonwealth Exh. C-9.]

[Brooks contacted police, who responded to the scene. The

complainants described Appellant] as a black male, approximately

twenty-six years old, wearing all black clothing, brandishing a

silver and black semiautomatic pistol, and having a teardrop

tattoo on his face. . . . The next day Detective Michael Kimmel

recovered video surveillance footage from the JSSK Laundromat

and one fired cartridge casing . . . from the crime scene. The

surveillance footage showed [Appellant] shoot at Brooks before

running in the direction of the camera, passing close enough to

permit witnesses to provide a positive identification from the

video. [N.T., 1/29/19, at 307-21; N.T., 1/30/19, at 197-221,

258-73.]

Trial Ct. Op., at 3-5.

The trial court also summarized the trial evidence for Case 1857:

At approximately 9:30 p.m. on January 9, 2017, [Appellant]

arranged to purchase the services of transgender sex worker

Vivian Royster via an advertisement on [b]ackpage.com[. He

arranged to meet her] at 5406 West Girard Avenue, which Royster

shared with [her paramour, Barry Jones (the decedent), and her

aunt, Betty Jones (unrelated).] When [Appellant] arrived, Royster

. . . recognized [him] as a previous client[. N.T., 1/30/19, at 5-

7, 13, 36-37].

In the bedroom, Royster asked for payment[. Appellant]

drew a silver and black semi-automatic pistol, pointed it at

Royster, and said “You know what this is.” Upon Royster

screaming and informing him that there was no money[,

Appellant] ransack[ed] the room, taking $30 and a cell phone

from a dresser. [N.T., 1/30/19, at 15-22.]

During the commotion, the decedent burst into the room and

began struggling on the bed with [Appellant] for the gun. During

the fight, [Appellant] pushed the decedent off the bed, aimed his

weapon and shot the decedent in the face twice. [Appellant] also

aimed his weapon at Royster and fired one shot and missed.

[Appellant] immediately ran down the steps, followed by Royster,

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where he turned around, fired once, and grazed Royster in the

shoulder before absconding. Betty Jones called 911[. N.T.

1/31/19, at 23-34.]

Trial Ct. Op. at 5-6. The decedent was pronounced dead that night. Id. at 6.

Royster was friends with Damian-Lopez and Singleton, the victims in the prior

night’s robbery. N.T. Trial, 1/29/19, at 250; N.T. Trial, 1/30/19, at 45.

The trial court summarized the police investigation of the two incidents:

After midnight on January 10, 2017, Royster [reviewed the

laundromat surveillance video and] identified the [person] on

[the] video as the same individual who killed the decedent.

Royster was unaware of [the prior night’s] incident at the time she

made the identification. At approximately 4:00 a.m., Royster

travelled to Singleton[ ] and Damian-Lopez’s apartment and

informed them about the shooting. [N.T., 1/29/19, at 132-37,

241-53; N.T., 1/30/19, at 40-47; Commonwealth Exh. C-39.]

* * *

[Around January 13 or 14, 2017,] Singleton received a

“Suggested Friends” Facebook notification[,] which directed [her]

to [Appellant’s] profile page[,4 which] contained multiple “selfie”

images of him. Having recognized [Appellant’s] “selfie” images as

depicting the perpetrator of the January 8, 2017 robbery,

Singleton took multiple “screenshot” photos of [Appellant’s]

Facebook profile through the smartphone’s camera and provided

them to Detective [William] Kelhower. On January 14, 2017,

detectives provided Brooks, Singleton, . . . Damian-Lopez[, and

Royster] with photo arrays containing [Appellant’s] image, and

each witness identified [Appellant] as their assailant. [N.T.,

1/29/19, at 20-34, 132-46; Commonwealth Exhs. C-10, C-16, C-

18, C-89, C-90, C-91.]

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4 Here, the trial court opinion states the Facebook profile “was listed under

[Appellant’s] name.” Trial Ct. Op. at 7. However, as we discuss infra, the

Commonwealth’s exhibits show a profile name of “Hamzah Allah’s Lion.”

Commonwealth Exh. 11.

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Philadelphia Police officers arrested [Appellant] the next day.

[I]nvestigators searched [Appellant’s] cell phone, numbered

(215) 416-5660, and discovered [he] employed an application

called “Sideline,” which allowed him to spoof a different number[,

(610)589-0673,] for caller identification purposes[. Investigators

also] discovered that [Appellant’s] phone, via Sideline, employed

the (610)589-0673 number to call Damian-Lopez’s and Royster’s

phones before both the robbery and the murder. Investigation of

[Appellant’s] internet search history revealed approximately 44

individual searches for pornographic videos depicting transgender

participants between December 24 and December 25, 2016.

[Appellant] further accessed advertisements for transgender sex

workers via backpage.com . . . on December 29, 2016 and at 1:15

a.m. on January 14, 2017. Approximately one hour after the

January 14, 2017 search, [Appellant] accessed two news articles

covering the January 9, 2017 homicide. [Appellant] also searched

for 9mm magazines use[d] to hold the same type of ammunition

used in each incident. [N.T., 1/31/19, at 297-331.]

Detective James Dunlap, an expert in cell tower analysis,

reviewed the phone records for [Appellant’s] (215) 416-5660

phone number and discovered that at 9:46 and 9:56 p.m. on

January 9, 2017, that phone was used to make two outgoing calls

from the cell tower nearest to 5406 West Girard Avenue. [N.T.

2/4/19 at 126-30.]

. . . Ballistics testing revealed that the recovered [fired cartridge

casings] from both 1309 North 52nd Street and 5406 West Girard

Avenue were all fired from the same weapon . . . . Police officers

recovered the murder weapon on September 11, 2017. . . . [N.T.,

1/31/19, at 67-70, 89-90, 101-20.]

Trial Ct. Op. at 6-8.

The jury returned a verdict on February 7, 2019. At Case 1856, the jury

found Appellant guilty of three counts of robbery5 and one count each of

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5 18 Pa.C.S. § 3701(a)(1)(iv).

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possessing instruments of crime (PIC), aggravated assault, burglary, and

firearms not to be carried without a license6 (VUFA 6106). At Case 1857, the

jury found Appellant guilty of second-degree murder, attempted murder, PIC,

aggravated assault, VUFA 6106, and two counts of robbery. Immediately

following the verdict, the trial court imposed an aggregate sentence of life

imprisonment without parole.

Appellant’s counsel filed a timely post-sentence motion, along with a

motion to withdraw as counsel. On February 13, 2019, the trial court denied

the post-sentence motion but permitted counsel to withdraw, and directed

that appeal counsel be appointed. The following day, before counsel was

appointed, Appellant filed a pro se notice of appeal at Case 1856. That appeal

is docketed in this Court at the present case, 595 EDA 2019. New counsel

was appointed on February 19th, and yet another substitute attorney was

subsequently appointed.

At this juncture we note Appellant also filed a notice of appeal at Case

1857.7 Trial Ct. Op. at 2 n.4. That appeal was docketed in this Court at 594

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6 18 Pa.C.S. §§ 907(a), 2702(a), 3502(a)(1), 6106(a)(1). “At trial, the

Commonwealth presented a Certificate of Non-Licensure showing that

[Appellant] was not licensed to carry a firearm.” Trial Ct. Op. at 9. Appellant

was also charged with the attempted murder, 18 Pa.C.S. § 901, of Brooks,

and was found not guilty.

7 While the record for Case 1857 is not presently before us, the trial court

states: “This Court’s Office of Judicial [R]ecords confirmed that [Appellant’s]

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EDA 2019, but was dismissed on June 19, 2019, for failure to file a brief.

Commonwealth v. White, 594 EDA 2019, Order, June 19, 2019. Appellant

did not seek relief from that dismissal. Thus, only the appeal from Case 1856

is presently before us. Although, as we discuss infra, the evidentiary rulings

and Appellant’s appellate issues pertain to both trial dockets, this panel only

has jurisdiction to grant relief, if any, at Case 1856.

Appellant raises the following four issues for our review:

I. Did the lower court err in granting the Commonwealth’s Motion

for Consolidation where evidence of the murder in question would

not have been admissible in a separate trial for the robbery of

Miayanna Brooks, Saleem Singleton, and Aly Damien and was not

capable of separation by the jury?

II. Did the lower court err in admitting alleged Facebook photos

of [Appellant] that had not been properly authenticated?

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pro se Notice of Appeal was filed separately for each docket.” Trial Ct. Op. at

2 n.4.

We further note that at the instant docket, for Case 1856, this Court

issued a per curiam order on January 29, 2020, directing Appellant to show

cause why this appeal should not be quashed pursuant to Commonwealth

v. Walker, 185 A.3d 969 (Pa. 2018). See id. 185 A.3d at 977 (appellant

must file separate notices of appeal “when a single order resolves issues

arising on more than one lower court docket,” and failure to do so will result

in quashal of appeal). Appellant filed a response, and this Court vacated the

show cause order, but advised the issue would be referred to the merits panel.

Order, 4/2/20.

Upon review, we observe Appellant’s February 14, 2019, pro se notice

of appeal lists the docket numbers for both Case 1856 and 1857. We conclude

this filing satisfies Walker, for purposes of the Case 1856/595 EDA 2019

appeal. See Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super.

2020) (en banc) (a notice of appeal, for one trial docket, does not violate

Walker if it also lists other trial dockets numbers).

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III. Did the lower court err in admitting phone records where the

Commonwealth failed to authenticate the records via a qualified

records custodian?

IV. Did the lower court err in failing to dismiss the charges against

[Appellant] in light of the Commonwealth’s failure to timely

disclose Brady material?

Appellant’s Brief at 3.

In his first issue, Appellant argues the trial court erred in granting the

Commonwealth’s motion to consolidate the two cases for trial. He first

recounts that the investigation in Case 1856 (the robbery of Damian-Lopez,

Brooks, and Singleton) “revealed video and Facebook photos that were . . .

used . . . to make identifications” in investigating Case 1857 (the homicide of

Jones and robbery of Royster). Appellant’s Brief at 17. Appellant concedes

that evidence of the first night’s “robbery would have been admissible at a

separate trial for the homicide case.” Id. Appellant avers, however, the

converse is not true: “The events and investigation of the homicide case . . .

in no way lead to the identifications regarding the robbery. As a result, the

events of the homicide case would not have been admissible in a separate trial

for the robbery.” Id. We conclude no relief is due.

We note the relevant standard of review:

“Whether or not separate indictments should be consolidated for

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

discretion will be reversed only for a manifest abuse of discretion

or prejudice and clear injustice to the defendant.” Pennsylvania

Rule of Criminal Procedure 582 provides that joinder of offenses

charged in separate indictments or informations is permitted when

“the evidence of each of the offenses would be admissible in a

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separate trial for the other and is capable of separation by the jury

so that there is no danger of confusion.” Pa.R.Crim.P.

582(A)(1)(a). While evidence of other criminal behavior is not

admissible to show a defendant’s propensity to commit crimes,

such evidence “may be admitted for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge,

identity or absence of mistake or accident” so long as the

“probative value of the evidence outweighs its prejudicial effect.”

Pa.R.E. 404(b)(2),(3)[.]

Commonwealth v. Johnson, 179 A.3d 1105, 1115-16 (Pa. Super. 2018)

(some citations omitted).

Here, the trial court discussed its reasons for granting consolidation:

[T]he evidence presented in each case would be admissible to

demonstrate the history and natural development of the facts of

the other matter. Each incident occurred in the same geographic

area on consecutive days, and targeted tightly knit members of

the city’s small transgender community. [Appellant] used the

same weapon to perpetrate each offense. [Appellant’s] modus

operandi bears a striking similarity for each offense: [he] used a

mobile phone application to mimic the same (610) 589-0673

number that he used to contact both Damian-Lopez and Royster,

each of whom he had previously hired, in order to gain access to

their homes. The video surveillance evidence recovered pursuant

to the January 8, 2017 Robbery investigation was shown to

Royster, who identified the perpetrator of the Robbery as the

decedent’s murderer. Singleton’s discovery of [a] Facebook

profile containing [Appellant’s] name and photographs permitted

the police to assemble a photo array containing [Appellant’s]

photo, which Brooks, Singleton, Damian-Lopez, and Royster

[used] to identify [Appellant] as the perpetrator of each crime.

Upon recovering [Appellant’s] phone incident to arrest,

investigators obtained data showing [Appellant’s] interest in sex

acts involving transgender performers and his history of searching

for transgender sex workers via backpage.com.[8]

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8 The trial court also found consolidation of the cases would not risk confusing

the jury. Trial Ct. Op. at 11. Appellant does not challenge this finding on

appeal.

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Trial Ct. Op. at 10-11.

Appellant’s sole argument on appeal is that the police investigation of

the second night’s homicide “in no way lead[s] to the identifications regarding

the [first night’s] robbery.” Appellant’s Brief at 17. This limited discussion,

however, does not address, let alone dispute, the trial court’s analysis that

evidence relating to each incident would tend to show “motive, opportunity,

intent, preparation, plan, knowledge, [or] identity” relevant to the other

incident. See Johnson, 179 A.3d at 1116. Appellant has not established the

trial court’s ruling was an abuse of discretion, and we do not disturb its

consolidation order.

Appellant’s second claim is that the trial court erred in admitting the

Facebook photos of him, on the ground they were not properly authenticated.

Appellant’s Brief at 18. As stated above, Singleton received a “Suggested

Friends” notification on Facebook, which directed her to a Facebook profile

under Appellant’s name and containing multiple photos of Appellant. Trial Ct.

Op. at 7. Singleton used her phone to take multiple “screenshots” of this

Facebook profile page. Id. Appellant filed a motion in limine to preclude the

screenshots, and the trial court conducted a hearing on July 31, 2018.9 See

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9“Appellant preserved the issue by litigating the pre-trial motion in limine,

and was not required to object to the trial court’s ruling on the motion or place

an objection on the record at trial in order to preserve the issue for appeal.”

Commonwealth v. Stokes, 78 A.3d 644, 652 (Pa. Super. 2013), citing, inter

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N.T. Motion in Limine, 7/31/18, at 10-11. Appellant claimed the exhibits

should be excluded because they could not be linked to any account made by

him: “We don’t know if it’s a fake account someone [made] and used

[Appellant’s] picture[.]” N.T. Motion, 7/31/18, at 12. Appellant further

alleged it was not established that he was the person depicted in the Facebook

photos. The Commonwealth responded that it was irrelevant who made the

Facebook account, but instead, “what matters is that” Singleton recognized

Appellant in the photos. Id. at 13. The Commonwealth further averred that

the question — of whether Appellant was the person in the photos — was for

the jury to decide. Id. at 14. The trial court admitted the photos. Id. at 15.

On appeal, the sum of Appellant’s argument is that there was no

evidence he created the Facebook profile, nor that he “was in fact the person

depicted in the photos.” Appellant’s Brief at 18. Appellant relies on

Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018), which he

summarizes as reversing “the admission of social media posts via a computer

forensic expert [where] there was no evidence [the] defendant had created

the account or sent the communications and photos in question.” Appellant’s

Brief at 18. No relief is due.

We note:

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alia, Pa.R.E. 103(b) (“Once the court rules [on evidence] definitively on the

record — either before or at trial — a party need not renew an objection or

offer of proof to preserve a claim of error for appeal.”).

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When ruling on a trial court’s decision to grant or

deny a motion in limine, we apply an evidentiary abuse

of discretion standard of review. The admission of

evidence is committed to the sound discretion of the trial

court, and a trial court’s ruling regarding the admission

of evidence will not be disturbed on appeal unless that

ruling reflects manifest unreasonableness, or partiality,

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

clearly erroneous.

Pursuant to Pennsylvania Rule of Evidence 901,

authentication is required prior to admission of evidence. The

proponent of the evidence must introduce sufficient evidence that

the matter is what it purports to be. See Pa.R.E. 901(a).

Testimony of a witness with personal knowledge that a matter is

what it is claimed to be can be sufficient. See Pa.R.E. 901(b)(1).

Evidence that cannot be authenticated by a knowledgeable

person, pursuant to subsection (b)(1), may be authenticated by

other parts of subsection (b), including circumstantial evidence

pursuant to subsection (b)(4). See Pa.R.E. 901(b)(4).

Mangel, 181 A.3d at 1158-59 (some citations and footnote omitted).

In the case sub judice, the trial court acknowledged the general

“difficulties in properly authenticating evidence obtained through social media

accounts.” Trial Ct. Op. at 11, citing Mangel, 181 A.3d 1154. The court

reasoned, however, “the author of the Facebook profile in question was

irrelevant:”

Singleton took the [screenshots] and thus had the requisite

knowledge to show that the photograph is a fair and accurate

representation of the images that appeared on [her] phone’s

screen at the time. This evidence was not used to prove

[Appellant] authored the Facebook profile or curated the photos

that appeared within it, rather the evidence was admitted to show

the jury the course of investigation which culminated in Brooks,

Singleton, Damian-Lopez, and Royster identifying [Appellant] as

the perpetrator of each crime via photo array. [Appellant] fails to

show that the Commonwealth failed to properly authenticate the

photos in question.

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Trial Ct. Op. at 11-12.

The Facebook profile-screenshots do not bear Appellant’s name, but

rather show a profile name of “Hamzah Allah’s Lion.” Commonwealth Exh.

11. Appellant does not argue that someone deceitfully created a social media

profile using his name. We agree with the trial court the identity of the person

who created the Facebook profile is not relevant; as the trial court simply

states, the Commonwealth did not seek “to prove [Appellant] authored the

Facebook profile or curated the photos that appeared within it.” See Trial Ct.

Op. at 12. Instead, the evidence was presented to show Singleton saw the

photos on her Facebook account, recognized the person in the photos as their

assailant, and took and provided screenshots to the police. Id.

For these same reasons, we conclude Mangel, the case relied upon by

Appellant, is distinguishable. In that case, the Commonwealth sought to

introduce Facebook posts and messages allegedly made by the defendant.

Mangel, 181 A.3d at 1155-57. This Court held the evidence was properly

excluded, reasoning “the Commonwealth presented no evidence, direct or

circumstantial, tending to substantiate that [the defendant] created the

Facebook account in question, authored the chat messages, or posted the

photograph of bloody hands.” Id. at 1164. In this case, as stated above, the

Commonwealth did not argue Appellant created the Facebook profile or posted

the photos to that account. Accordingly, the Commonwealth was not required

to authenticate who created the Facebook account.

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Appellant’s third claim on appeal is that the trial court erred in admitting

evidence of his phone records on the ground that they were not authenticated

by a qualified records custodian. Appellant’s Brief at 19. He summarizes: (1)

Detective Kelhower testified about “the subscriber’s information pertaining to

the phone purportedly connected to” Appellant; (2) Agent Joseph Purfield

testified about “the contents of Sideline/Pinger records[,] as well as the call

detail records for [Damian-Lopez] and . . . Royster;” (3) and Detective Dunlap

testified about “the content of call detail records.” Id. at 20. Appellant

asserts, “The Commonwealth failed to qualify any of these witnesses as a

records custodian or to lay any of the requisite foundation . . . for the records’

admission under Pa.R.E. 803(6).” Id. We conclude these claims are waived.

“We have long held that ‘[f]ailure to raise a contemporaneous objection

to the evidence at trial waives that claim on appeal.’” Commonwealth v.

Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (citation omitted).

This [C]ourt cannot review a case upon a theory different from

that relied upon in the trial court, or raised for the first time on

appeal. A theory of error different from that presented to the trial

jurist is waived on appeal, even if both theories support the same

basic allegation of error which gives rise to the claim for relief. It

is a firm rule in this jurisdiction that if the ground upon which an

objection to the admission of evidence is specifically stated, all

other reasons for the exclusion of the evidence are waived and

may not be raised thereafter.

Commonwealth v. Mehalic, 555 A.2d 173, 183 (Pa. Super. 1989) (citations

omitted). “Issues not raised in the trial court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). Furthermore, where “an issue

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is not reviewable on appeal unless raised or preserved below,” the statement

of the case and argument sections of an appellant’s brief must specify the

place in the record where their issue was raised before the trial court. See

Pa.R.A.P. 2117(c)(1), 2119(e).

Appellant fails to identify the place in the record where he objected to

the admission of the phone records on the ground they were not authenticated

by a records custodian. See Pa.R.A.P. 2117(c)(1), 2119(e). With respect to

Detective Kelhower’s testimony, Appellant cites page 199 of the January 31,

2019, trial transcript. That portion of the transcript reveals Appellant raised

only a hearsay objection. See N.T., 1/31/19, at 199. With respect to Agent

Purfield’s testimony, Appellant raised no objection of any nature during their

direct examination. See id. at 298-332. During Detective Dunlap’s direct

examination, Appellant raised several objections, but none related to

authenticating the phone records. See N.T., 2/4/19, at 80-130. For the

foregoing reasons, we conclude the issue is waived for our review.

Furthermore, we agree with the Commonwealth that this issue is waived

for Appellant’s failure to include it in his court-ordered Pa.R.A.P. 1925(b)

statement. Appellant’s Rule 1925(b) statement framed a challenge to the

phone records-evidence as follows:

The trial court erred in allowing the Commonwealth to introduce

various documentation relating to phone records and evidence

obtained through these phone records, from a phone seized from

[Appellant]. Further, that certain information pertaining to that

which was derived from the cell phone was not provided in a

timely fashion to [Appellant] in violation of the appropriate

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discovery rule[. N.T., 1/31/19, at 213-16.] As a result thereof

[Appellant] should be awarded a new trial.

Appellant’s Statement of Matters Complained of Pursuant to Rule of Appellate

Procedure 1925(b), 4/8/19, at 1 (unpaginated). This statement makes no

reference to authenticating phone records or a records custodian. See

Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement . . . are

waived.”).

Appellant’s final claim is that the trial court erred in not dismissing the

charges, pursuant to Brady, due to the Commonwealth’s failure to timely

disclose evidence of a photo array. Appellant’ Brief at 20. We set forth the

context:

On January 12, 2017, [during the investigation of the

robberies and homicide,] Damian-Lopez [told] Detective William

Kelhower . . . that she observed the perpetrator of the robbery at

a grocery store near the intersection of 52nd Street and Girard

Avenue. At that location, Detective Kelhower detained Michael

Attaway, an individual who fit the perpetrator’s description.

Detectives prepared a photo array containing Attaway’s photo,

which was shown to Brooks, Singleton, and Damian-Lopez.

Neither [sic] witness identified Attaway or any other individual in

the photo array. [N.T., 1/31/19, at 243-56.]

Trial Ct. Op. at 7.

Detective Joseph Murray testified at trial that he presented the January

12, 2017, photo array to Brooks, Singleton, and Damian-Lopez. Trial Ct. Op.

at 9. He informed homicide detectives of the result, but failed to provide them

with copies of the array. Id. Detective Murray “rediscovered the array in

April or May of 2018 and provided it to Detective” Jeffrey Gilson, who

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investigated this case. Id. “The assigned Assistant District Attorney for the

July 30, 2018[, hearing] discovered the array’s existence on August 1, 2018,

and immediately passed the discovery to trial counsel for review.” Id. At that

time, jury selection had already been conducted. Id. at 15.

The trial court summarized:

On August 3, 2018, this Court presided over a hearing and

concluded that this evidence constituted relevant Brady material.

This Court further expressed that the Commonwealth’s piecemeal

passing of discovery deeply concerned this Court. Despite this

Court’s exasperation over the Commonwealth’s handling of

discovery in this matter, it ultimately concluded that the proper

remedy was to continue the matter so that [Appellant] could

review the material in question and be afforded a fair trial. [N.T.

8/3/18 at 152-63.]

Trial Ct. Op. at 15-16 (footnote omitted).

On appeal, the sum of Appellant’s argument is:

[A]fter numerous prior continuances due to the late disclosure of

discovery, on August 3, 2018, this matter had to be continued in

the midst of jury selection due to the Commonwealth’s eleventh-

hour disclosure of evidence pertaining to the Michael Attaway

photo array. This resulted in [Appellant], who had already

been in custody for nearly two and a half years, having to wait

an additional five months for trial. The Courts of this

Commonwealth have previously found that such an outrageous

discovery violation concerning Brady necessitates dismissal of the

case. Commonwealth v. Smith, 615 A.2d 321 (Pa. 1992)

(charges dismissed and retrial barred due to substantial Brady

violation). . . .

Appellant’s Brief at 21 (emphases added).

“Under Brady and [its progeny,] a prosecutor has an obligation to

disclose all exculpatory information material to the guilt or punishment of an

accused[.]” Commonwealth v. Chmiel, 30 A.3d 1111, 1129 (Pa. 2011).

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“[S]uch evidence is material ‘if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result

of the proceeding would have been different.’” . . . In sum, there

are three necessary components to demonstrate a Brady

violation: “[t]he evidence at issue must be favorable to the

accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the

State, either willfully or inadvertently; and prejudice must have

ensued.”

Commonwealth v. Causey, 833 A.2d 165, 170 (Pa. Super. 2003) (citations

omitted).

Here, the trial court discussed:

By granting a continuance, this Court elected to pursue the

most fundamentally sound solution to the present issue, and did

everything in its power to preserve [Appellant’s] right to a full,

fair, and speedy trial. Prior to trial, [Appellant] received all of the

Brady material in question, and with the benefit of that material,

was granted sufficient time for him and trial counsel to prepare an

effective defense. At trial, defense counsel thoroughly cross-

examined Detective Kelhower concerning his investigation of

Attaway as a potential suspect. [N.T., 1/31/19, at 219-82.] Trial

counsel further examined Brooks, Singleton, and Damian-Lopez

concerning their prior identification of the assailant as having a

tattoo under his left eye. [N.T., 1/29/19, at 62-70, 185-98, 261-

301.] Trial counsel further called Detective Joseph Murray as a

defense witness, who, under examination, admitted that he both

misplaced and failed to provide this discovery material to the

Commonwealth’s attorneys. [N.T., 2/4/19, at 182-96.]

The above facts clearly indicate [Appellant] had the

opportunity to fully present any evidence pursuant to the

discovery materials the Commonwealth failed to disclose in

anticipation of the August 1, 2018 trial date. As a result of this

evidence, the jury was able to fully consider the methods used to

identify [Appellant] as the perpetrator, and consider any

discrepancies that appeared in the witnesses’ description of the

perpetrator, including the presence or non-presence of facial

tattoos. Having considered all of this evidence, and knowing that

[Appellant] did not have the tattoos described over the course of

the investigation, the jury still elected to convict him in each

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matter. Accordingly, [Appellant] fails to demonstrate prejudice

and is not entitled to relief.

Trial Ct. Op. at 16-17.

Appellant’s sole issue is that the Commonwealth’s Brady violation

resulted in his having to wait, “after numerous prior continuances,” “an

additional five months for trial.” Appellant’s Brief at 21. The premise of this

argument is mistaken. Although the trial court continued trial on August 3,

2018, due to the disclosure of the Brady material, the court also pointed out

that an “October 22, 2018, trial date was rescheduled to January 28, 2019,

because of defense counsel’s unavailability.” Trial Ct. Op. at 1 n.1. This

continuance spanned approximately three months.

Furthermore, the trial court criticized the Commonwealth’s “lack of

preparedness” and “piecemeal passing of discovery,” and acknowledged there

were “five trial date continuances, borne primarily by the Commonwealth’s

inability to [timely] provide discovery.” Trial Ct. Op. at 1 n.1, 15-16.

However, the court also noted: (1) it appointed new defense counsel “after

[Appellant] attempted to assault previously appointed counsel;” (2) the

parties made an earlier joint continuance request, from March 18 to July 30,

2018, “for defense review of additional discovery concerning [Appellant’s] use

of a phone number spoofing application;” and, as stated above, (3) defense

counsel was unavailable, after the Brady continuance, resulting in a three-

month continuance. Id. at 1 n.1.

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Whereas Appellant requests dismissal of the charges, we note, as did

the trial court, that “dismissal . . . is an extreme sanction that should be

imposed sparingly and only in cases of blatant prosecutorial misconduct.” See

Trial Ct. Op. at 15, citing Commonwealth v. Wilson, 147 A.3d 7, 13 (Pa.

Super. 2016). Incorporating our foregoing discussion, the approximately two-

month continuance attributable to the Commonwealth’s late disclosure of the

Attaway photo array, in itself, did not constitute prejudice requiring dismissal

of the charges. Thus, we conclude no relief is due.

Finding no merit to any of Appellant’s issues, we affirm the judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/29/20

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