Com. v. Lewis, G.

J-S15015-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GREGORY LEWIS, JR. :

:

Appellant : No. 1673 EDA 2021

Appeal from the Judgment of Sentence Entered June 20, 2019

In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP-48-CR-0001520-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GREGORY LEWIS, JR. :

:

Appellant : No. 1674 EDA 2021

Appeal from the Judgment of Sentence Entered June 20, 2019

In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP-48-CR-0001795-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GREGORY LEWIS, JR. :

:

Appellant : No. 1675 EDA 2021

Appeal from the Judgment of Sentence Entered June 20, 2019

In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP-48-CR-0003172-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

J-S15015-22

:

v. :

:

:

GREGORY LEWIS, JR. :

:

Appellant : No. 1676 EDA 2021

Appeal from the Judgment of Sentence Entered June 20, 2019

In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP-48-CR-0003777-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GREGORY LEWIS, JR. :

:

Appellant : No. 1677 EDA 2021

Appeal from the Judgment of Sentence Entered June 20, 2019

In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP-48-CR-0001059-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

GREGORY LEWIS, JR. :

:

Appellant : No. 1678 EDA 2021

Appeal from the Judgment of Sentence Entered June 20, 2019

In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP-48-CR-0001528-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

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J-S15015-22

GREGORY LEWIS, JR. :

:

Appellant : No. 1679 EDA 2021

Appeal from the Judgment of Sentence Entered June 20, 2019

In the Court of Common Pleas of Northampton County Criminal Division

at No(s): CP-48-CR-0001529-2018

BEFORE: NICHOLS, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY NICHOLS, J.: FILED AUGUST 29, 2022

Appellant Gregory Lewis, Jr. appeals from the judgment of sentence

imposed following his consolidated jury trial and convictions for second-degree

murder, kidnapping, robbery, and related offenses. Appellant challenges the

trial court’s denial of his motions to suppress, evidentiary rulings,

consolidation of separate informations for trial, denial of his request for a

mistrial, the sufficiency of the evidence, and the denial of his motion for a new

trial based on after-discovered evidence. We affirm.

Background

We adopt the trial court’s summary of the facts underlying this matter.

See Trial Ct. Op., 10/23/19, at 2-3. Briefly, Appellant was charged with

multiple offenses in seven cases after he committed a series of commercial

robberies in Northampton County. The robberies also involved two kidnapping

attempts, one of which resulted in the death of the victim. Prior to trial, the

Commonwealth filed a motion to consolidate all seven cases, which the trial

court granted.

Appellant filed an omnibus pre-trial motion seeking to suppress, among

other things, 1) cell phone records, including location data; 2) data extracted

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from the cell phones that the police seized from Appellant; and 3) evidence

recovered from a search of Appellant’s residence. Appellant’s Omnibus Pre-

trial Mot., 10/16/18, at 4-8. During the suppression hearing, the

Commonwealth submitted into evidence orders for cell phone records for

phones with numbers ending in 5435 and 3074. N.T. Suppression Hr’g,

11/15/18, at 7-8; Commonwealth’s Ex. 5 and 6. The Commonwealth also

presented search warrants to obtain cell phone records for phones with

numbers ending in 3074 and 4895, to extract data from two cell phones found

in Appellant’s car, and to search Appellant’s residence. N.T. Suppression Hr’g,

11/15/18, at 8-11, 21; Commonwealth’s Ex. 7, 8, 9, 10, and 11. The trial

court denied Appellant’s motions to suppress on December 7, 2018.

Appellant also filed several pre-trial motions in limine seeking to exclude

certain evidence. Relevant to this appeal, Appellant sought to exclude (1) cell

phone records; (2) alleged death threats that Appellant made against three

individuals involved in these cases; (3) the name of the assistant district

attorney who Appellant had threatened to kill; and (4) Appellant’s nickname.

The trial court denied all of Appellant’s relevant motions in limine.

Appellant’s consolidated jury trial began on April 15, 2019. At trial,

Detective Charles Leauber testified that during his investigation into one of

the robberies at issue, he reviewed the store’s security camera footage. N.T.

Trial, 4/22/19, at 102. Detective Leauber identified Appellant as one of the

two individuals in the security video. Id. at 105. After Appellant objected to

the detective’s identification, the trial court issued the following instruction:

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Ladies and gentlemen, you are to disregard the identification by

this witness of [Appellant]. There has been no evidence of that

identification. And you are instructed, [Detective], to use some

other descriptive term for whichever of the two individuals it is

that you are referring to in your testimony without referring to

that individual by name.

Id. at 105-106. Appellant requested a mistrial, arguing that the curative

instruction was inadequate. Id. at 106-07. The trial court denied Appellant’s

motion for a mistrial. Id. at 107.

Vaugh Felix testified that he asked Appellant to help him rob the Verizon

store in Forks Township. N.T. Trial, 4/23/19, at 139. Felix testified that it

was Appellant’s idea to kidnap an employee in order to facilitate the robbery.

Id. at 155. Specifically, Felix and Appellant planned to follow one of the

store’s employees to his home after the store closed, kidnap that employee,

and force him to give Felix and Appellant access to the store so they could

commit the robbery. Id. at 140. On November 21, 2016, Appellant and Felix

executed their plan. Id. at 145. Both Appellant and Felix brought zip ties

with them to restrain their victim and both men wore ski masks and gloves.

Id. at 148, 153-54. Felix and Appellant followed Verizon employee Michael

Davis from the store to Davis’s home, but after Davis refused to get into their

vehicle, Felix shot and killed Davis. Id. at 146-47, 150-52. After Appellant

and Felix fled the scene, the two men discussed the shooting and their

confusion as to why Davis refused to cooperate. Id. at 152-53, 155.

On April 26, 2019, the jury convicted Appellant of seven counts each of

kidnapping and conspiracy to commit kidnapping; six counts of conspiracy to

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commit robbery; five counts of robbery; four counts each of false

imprisonment, theft by unlawful taking, and receiving stolen property; three

counts each of simple assault, conspiracy to commit simple assault, and

possession of a firearm with intent to employ it criminally; two counts each of

attempted robbery and attempted theft by unlawful taking; and one each

count of second-degree murder, robbery of a motor vehicle, conspiracy to

commit robbery of a motor vehicle, attempted kidnapping, unlawful restraint,

and possession of an instrument of crime.1

On June 20, 2019, the trial court sentenced Appellant to an aggregate

term of life imprisonment, followed by a consecutive term of 113 years and

11 months to 227 years and 10 months’ imprisonment. Appellant filed a

timely post-sentence motion, which the trial court denied. Appellant then filed

timely notices of appeal and Pa.R.A.P. 1925(b) statements at each trial court

docket number. The trial court issued a Rule 1925(a) opinion addressing

Appellant’s issues and adopting the legal analysis set forth in its October 23,

2019 order and opinion.

A prior panel of this Court summarized the subsequent procedural

history as follows:

On December 2, 2020, while Appellant’s direct appeal was pending

in this Court, Appellant filed an application for remand, based

____________________________________________

1 18 Pa.C.S. §§ 2901(a)(2); 903(a)(1), 2901(a)(2); 903(a)(1),

3701(a)(1)(ii); 3701(a)(1)(ii); 2903(a); 3921(a); 3925(a); 2701(a)(3);

903(a)(1), 2701(a)(3); 907(b); 901(a), 3702(a)(1)(ii); 901(a), 3921(a);

2502(c); 3702(a); 903(a)(1), 3702(a); 901(a), 2901(a)(2); 2902(a)(1); and

907(a), respectively.

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upon a claim of after-discovered evidence. Within Appellant’s

application, Appellant averred that his co-defendant, Vaughn

Felix, “will now testify that any and all statements [Felix] made

implicating [Appellant] in the Northampton County criminal

homicide, attempted abduction, and commercial armed robberies

were coerced or otherwise involuntary and false statements . . .

and that [Appellant] is factually innocent of the [crimes].”

Appellant’s Application for Remand, 12/2/20, at 2.

* * *

Appellant requested that we remand this case to the trial court,

so that the trial court may conduct an evidentiary hearing on his

after-discovered evidence claim, in accordance with Pennsylvania

Rule of Criminal Procedure 720.

Commonwealth v. Lewis, 2020 WL 7419522, at *2 (Pa. Super. 2020)

(unpublished mem.) (some citations omitted). Ultimately, this Court

remanded Appellant’s case to the trial court “for an evidentiary hearing to

determine whether Appellant has proven, by a preponderance of the evidence,

that he is entitled to a new trial.” Id. at *3.

The trial court held a hearing on Appellant’s motion for a new trial based

on after-discovered evidence on April 19, 2021. Felix briefly testified that

Appellant was not involved in the Davis murder. N.T. Post-Sentence Mot. Hr’g,

4/19/21, at 7-8. However, Felix also invoked his Fifth Amendment right

against self-incrimination and refused to answer Appellant’s other questions.

Id. at 5-6. The trial court continued the hearing so that it could appoint Fifth

Amendment counsel for Felix.

The hearing resumed on May 13, 2021. Felix refused to answer any

further questions on Fifth Amendment grounds. N.T. Post-Sentence Mot. Hr’g,

5/13/21, at 5-23. Appellant moved to admit three exhibits, which he

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represented were Felix’s prior inconsistent statements recanting his trial

testimony. Id. at 24. The Commonwealth objected to these exhibits, and the

trial court reserved its decision on their admissibility. Id. at 24-25.

On July 16, 2021,2 the trial court issued an order excluding Appellant’s

exhibits and denying Appellant’s motion for new trial. Appellant then filed

timely notices of appeal and court-ordered Pa.R.A.P. 1925(b) statements at

each trial court docket number.3 On September 14, 2021, the trial court

issued a supplemental Rule 1925(a) opinion adopting the legal analysis set

forth in its July 16, 2019 order and its previously mentioned opinions.

On appeal, Appellant raises eleven issues,4 which we reorder as follows:

____________________________________________

2 We note that although the order denying Appellant’s motion was time-

stamped and marked on the docket on July 14, 2021, the docket entries reflect

that the trial court served Appellant on July 16, 2021. See Commonwealth

v. Jerman, 762 A.2d 366, 368 (Pa. Super. 2000) (stating that “[i]n a criminal

case, the date of entry of an order is the date the clerk of courts enters the

order on the docket, furnishes a copy of the order to the parties, and records

the time and manner of notice on the docket” (citations omitted)); see also

Pa.R.Crim.P. 114(C)(2)(c); Pa.R.A.P. 108(a)(1), (d)(1).

3 Appellant filed a separate notice of appeal at each trial court docket pursuant

to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), and Pa.R.A.P.

341(a). On September 21, 2021, this Court consolidated the appeals sua

sponte pursuant to Pa.R.A.P. 513. Order, 9/21/21.

4 We refer to the oft-cited quote from the late Judge Aldisert of the Third

Circuit:

With a decade and a half of federal appellate court experience

behind me, I can say that even when we reverse a trial court, it is

rare that a brief successfully demonstrates that the trial court

committed more than one or two reversible errors . . . When I

(Footnote Continued Next Page)

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1. Whether the trial court erred in denying the motion to suppress

cell phone records and data, including location data, in that

such cell phone records and data were obtained in violation of

the Fourth Amendment to the United States Constitution and

Article I Section 8 of the Pennsylvania Constitution?

2. Whether the trial court erred in denying the motion to suppress

the cell phone extraction in that the cell telephones seized and

subsequently searched were seized and subsequently searched

in violation of the Fourth Amendment of the United States

Constitution and Article I Section 8 of the Pennsylvania

Constitution?

3. Whether the trial court erred in denying the motion to suppress

with respect to the search of [Appellant’s] residence . . . in that

the search was undertaken in violation of the Fourth

Amendment of the United States Constitution and Article I

Section 8 of the Pennsylvania Constitution?

4. Whether the trial court erred in permitting the Commonwealth

to introduce various records purporting to be domestic records

of regularly conducted activity, including cell phone records,

pursuant to Pa.R.E. 902(11) in that the purported domestic

records of regularly conducted activity were not properly

subject to self-authentication pursuant to Pa.R.E. 902(11) and

any certification of a custodian of such records was challenged

as the records did not meet the requirements of Pa.R.E.

803(6)(A)-(C)?

5. Whether the trial court erred in permitting evidence regarding

threats to kill three people who were related to the subject

case, including the prosecuting attorney?

____________________________________________

read an appellant’s brief that contains ten or twelve points, a

presumption arises that there is no merit to any of them. I do not

say that this is an irrebuttable presumption, but it is a

presumption nevertheless that reduces the effectiveness of

appellate advocacy. Appellate advocacy is measured by

effectiveness, not loquaciousness.

Commonwealth v. Lutes, 793 A.2d 949, 955 n.1 (Pa. Super. 2002)

(citations omitted).

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6. Whether the trial court erred in permitting evidence of the

specific identity of the named assistant district attorney alleged

to be the object of a threat[?]

7. Whether the trial court erred in permitting the Commonwealth

to introduce evidence or reference to the effect that [Appellant]

was known by the nickname “Trig”?

8. Whether the trial court erred in granting the motion to join

offenses charged in separate informations for trial in that such

joinder was not proper under Rule 582 of the Pennsylvania

Rules of Criminal Procedure?

9. Whether the trial court erred in denying the motion for mistrial

on the ground that a police witness made an improper

identification in trial testimony without any basis to support any

such identification?

10. Whether the evidence was sufficient to establish the elements

of the crimes charged in that the evidence was not sufficient to

identify [Appellant], the evidence was not sufficient to establish

the elements of murder in the second degree[,] and the

evidence was not sufficient to establish the elements of

kidnapping?

11. Whether the trial court erred in denying the motion for new

trial on the ground of after-discovered evidence?

Appellant’s Brief at 7-8 (formatting altered).

Motions to Suppress

In his first three issues, Appellant argues that the trial court erred in

denying his motions to suppress. Specifically, Appellant argues that the trial

court erred by failing to suppress (1) cell phone records and data, including

location data for the cell phones (also known as cell site location information);

(2) the contents of the cell phones; and (3) evidence obtained from the search

of Appellant’s residence. Id. at 20-29.

Initially, we note that

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our scope and standard of review of an order denying a motion to

suppress are unique when we are reviewing a magistrate’s

decision to issue a search warrant. They differ from those cases

in which we are reviewing a court’s decision regarding evidence

obtained without a warrant. When reviewing a magistrate’s

decision to issue a warrant, there are no factual findings from the

trial court. Thus, we need not 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. Instead, we are merely reviewing the magistrate’s

decision to issue the warrant. As such, our duty is to ensure that

the magistrate had a substantial basis for concluding that probable

cause existed. In so doing, the reviewing court must accord

deference to the issuing authority’s probable cause determination,

and must view the information offered to establish probable cause

in a common-sense, non-technical manner.

Commonwealth v. Manuel, 194 A.3d 1076, 1080-81 (Pa. Super. 2018) (en

banc) (citation and quotation marks omitted); see also Commonwealth v.

Harvard, 64 A.3d 690, 696 (Pa. Super. 2013) (stating that “[a] magistrate’s

finding of probable cause must be based on facts described within the four

corners of the affidavit[,] and our scope of review of a suppression court’s

ruling is confined primarily to questions of law” (citation omitted)).

Further, this Court has explained:

Before an issuing authority may issue a constitutionally valid

search warrant, he or she must be furnished with information

sufficient to persuade a reasonable person that probable cause

exists to conduct a search. The standard for evaluating a search

warrant is a “totality of the circumstances” test as set forth in

Illinois v. Gates, 462 U.S. 213 (1983), and adopted in

Commonwealth v. Gray, 503 A.2d 921 (Pa. 1985). A magistrate

is to make a “practical, common sense decision whether, given all

the circumstances set forth in the affidavit before him, including

the ‘veracity’ and ‘basis of knowledge’ of persons supplying

hearsay information, there is a fair probability that contraband or

evidence of a crime will be found in a particular place.” The

information offered to establish probable cause must be viewed in

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a common sense, nontechnical manner. Probable cause is based

on a finding of the probability, not a prima facie showing of

criminal activity, and deference is to be accorded a magistrate’s

finding of probable cause.

Probable cause does not demand the certainty we associate with

formal trials. Rather, a determination of probable cause requires

only that the totality of the circumstances demonstrates a fair

probability that contraband or evidence of a crime will be found in

a particular place.

Manuel, 194 A.3d at 1081 (footnote and some citations omitted, formatting

altered).

Finally, we note that it is well settled that “[t]he fruit of the poisonous

tree doctrine excludes evidence obtained from, or acquired as a consequence

of, lawless official acts. A fruit of the poisonous tree argument requires an

antecedent illegality.” Commonwealth v. Torres, 177 A.3d 263, 276 (Pa.

Super. 2017) (citations omitted and formatting altered).

Wiretap Act Order

Appellant argues that the trial court erred in denying his motion to

suppress historical cell site location information (historical CSLI) from three

cell phones because the police obtained that evidence through an order issued

under the Wiretapping and Electronic Surveillance Control Act (Wiretap Act)5

rather than a search warrant. Appellant’s Brief at 20-22 (citing, inter alia,

Carpenter v. United States, 138 S.Ct. 2206 (2018)). In support, Appellant

emphasizes that the Wiretap Act allows a court to issue an order based only

upon a showing of reasonable suspicion, rather than probable cause.

____________________________________________

5 18 Pa.C.S. §§ 5701-5782.

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Therefore, Appellant contends that because the order for the 5435 phone’s

historical CSLI was issued under the Wiretap Act, it violated the Fourth

Amendment. Id. at 22. Appellant further claims that the unlawfully obtained

evidence for the 5435 phone tainted the historical CLSI obtained for the

second and third phones (the 3074 and 4895 phones). Id.

Section 5743 of the Wiretap Act provides, in relevant part:

(c) Records concerning electronic communication service

or remote computing service.—

* * *

(2) A provider of electronic communication service . . . shall

disclose a record or other information pertaining to a subscriber

to or customer of the service, . . . to an investigative or law

enforcement officer only when the investigative or law

enforcement officer:

* * *

(ii) obtains a warrant issued under the Pennsylvania Rules

of Criminal Procedure;

(iii) obtains a court order for the disclosure under

subsection (d); or

* * *

(d) Requirements for court order.—A court order for disclosure

under subsection (b) or (c) shall be issued only if the investigative

or law enforcement officer shows that there are specific and

articulable facts showing that there are reasonable

grounds to believe that the contents of a wire or electronic

communication, or the records or other information

sought, are relevant and material to an ongoing criminal

investigation. A court issuing an order pursuant to this section,

on a motion made promptly by the service provider, may quash

or modify the order if the information or records requested are

unusually voluminous in nature or compliance with the order

would otherwise cause an undue burden on the provider.

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18 Pa.C.S. § 5743(c)(2)(ii)-(iii), (d) (emphases added).

In Carpenter, the United States Supreme Court examined “whether the

Government conducts a search under the Fourth Amendment when it accesses

historical cell phone records [a.k.a. historical CSLI] that provide a

comprehensive chronicle of the user’s past movements.” Carpenter, 138

S.Ct. at 2211. First, the Carpenter Court explained that “an individual

maintains a legitimate expectation of privacy in the record of his physical

movements as captured through CSLI[,]” and obtaining location information

for an individual from their wireless carrier is a search for Fourth Amendment

purposes. Id. at 2217. Therefore, the High Court held that to obtain historical

CSLI records, the government must obtain a search warrant supported by

probable cause. Id. at 2221.

The Carpenter Court then concluded that a court order issued under

the Stored Communications Act, 18 U.S.C. § 2703(d), fell short of the warrant

requirement because that statute only required the government to

demonstrate “reasonable grounds” to believe that the requested records were

“relevant and material to an ongoing investigation[,]” instead of probable

cause. Id. (citing 18 U.S.C. § 2703(d)).

Following Carpenter, Pennsylvania courts have examined its

applicability to the Pennsylvania Wiretap Act. In Pacheco, this Court

considered whether orders issued under Sections 5772 and 5773 of the

Wiretap Act for a defendant’s real-time CSLI violated the Fourth Amendment’s

warrant requirement. Commonwealth v. Pacheco, 227 A.3d 358, 370-73

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(Pa. Super. 2020), aff’d, 263 A.3d 626 (Pa. 2021). To make this

determination, the Court applied a three-part test: (1) whether a neutral,

disinterested magistrate issued the orders; (2) whether the applications for

the orders demonstrated probable cause to believe that “the evidence sought

will aid in a particular apprehension or conviction” for a particular offense; and

(3) the orders particularly described the things to be seized and the place to

be searched. Pacheco, 227 A.3d at 371 (citing Dalia v. United States, 441

U.S. 238, 255 (1979)). Ultimately, the Pacheco Court concluded that the

Wiretap Act orders in that case were the equivalent of search warrants for

Fourth Amendment purposes, because the orders satisfied the three Dalia

factors, including the probable cause requirement. See id., 227 A.3d at 371-

73; see also 18 Pa.C.S. § 5772(b)(3) (requiring that an application for an

order under that section include an affidavit of probable cause).

In B. Davis, a panel of this Court held that the police did not violate a

defendant’s Fourth Amendment rights by obtaining historical CSLI pursuant to

an order for under Section 5743 of the Wiretap Act, as the police later obtained

a search warrant for the same information. Commonwealth v. B. Davis,

241 A.3d 1160, 1171-73 (Pa. Super. 2020).

Finally, in Wesley, this Court examined whether an order for historical

CSLI issued under Section 5743 violated Carpenter if that order was

supported by probable cause. Commonwealth v. Wesley, 1865 EDA 2018,

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2020 WL 865277 (Pa. Super. filed Feb. 21, 2020) (unpublished mem.).6 In

Wesley, the police obtained historical CSLI for a cell phone pursuant to an

order under Section 5743.7 Id., 2020 WL 865277 at *2. The trial court

granted the defendant’s motion to suppress the historical CSLI because it was

obtained without a warrant. Id. The Commonwealth appealed, and this Court

reversed, concluding the Wiretap Act order satisfied Carpenter’s warrant

requirement because it was supported by probable cause. Id. at *11 (citing

Dalia, 441 U.S. at 255; Pacheco, 227 A.3d at 371-72).

Here, the trial court concluded that because the Wiretap Act order for

the 5435 phone was supported by probable cause, it did not violate

Carpenter. See Trial Ct. Order, 12/7/18, at 2-9.

After a careful review of the officer’s affidavit in support of the Wiretap

Act order for the 5435 phone, we agree with the trial court that the affidavit

demonstrated probable cause to believe that “the evidence sought will aid in

a particular apprehension or conviction” for a particular offense. See Dalia,

441 U.S. at 255. Specifically, the affidavit stated that the cell phone records

for the 5435 phone would aid in apprehending or convicting Appellant because

he was the subscriber for that phone number, security camera footage from

____________________________________________

6 See generally Pa.R.A.P. 126(b) (noting that unpublished memorandum

decisions of the Superior Court filed after May 1, 2019, may be cited for their

persuasive value).

7 The police obtained warrants for historical CSLI for three other phones,

therefore the trial court denied the defendant’s motion to suppress with

respect to those phones. See Wesley, 2020 WL 865277 at *2.

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one of the robberies showed one of the individuals receiving a call on his cell

phone, and a “cell phone tower dump” indicated that the 5435 phone received

a call at the same date and time as the individual in the security footage. See

Manuel, 194 A.3d at 1081. Additionally, the record reflects that a neutral,

disinterested magistrate issued the Wiretap Act order, and the order

particularly described the items to be seized. See Dalia, 441 U.S. at 255.

For these reasons, we agree with the trial court that the Wiretap Act order

complied with Carpenter. See Wesley, 2020 WL 865277 at *11; accord

Pacheco, 227 A.3d at 371-73. Likewise, because we conclude that this

evidence was properly obtained, there was no antecedent illegality, and

Appellant’s fruit of the poisonous tree argument with respect to the 3074 and

4895 phones must fail. See Torres, 177 A.3d at 276.

Search Warrants

Appellant also argues that there was no probable cause justifying the

search warrants for the historical CSLI for the 3074 and 4895 phones, to

extract data from several cell phones seized from Appellant, and to search

Appellant’s residence. Appellant’s Brief at 24-29. He further claims that the

trial court did not have jurisdiction to issue search warrants for cell phone

records located outside of Pennsylvania. Id. at 24. Finally, Appellant asserts

that the Northampton County magistrate judge did not have jurisdiction to

issue a warrant to search the cell phones when police from Northampton

County submitted the phones to a lab in Lehigh County to extract data from

the phones. Id. at 25-27.

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This Court has explained that when presenting issues in an appellate

brief,

it is an appellant’s duty to present arguments that are sufficiently

developed for our review. The brief must support the claims with

pertinent discussion, with references to the record and with

citations to legal authorities. Pa.R.A.P. 2119(a), (b), (c). . . .

This Court will not act as counsel and will not develop arguments

on behalf of an appellant. Moreover, when defects in a brief

impede our ability to conduct meaningful appellate review, we

may dismiss the appeal entirely or find certain issues to be

waived. Pa.R.A.P. 2101.

Commonwealth v. Kane, 10 A.3d 327, 331 (Pa. Super. 2010) (some

citations omitted); see also Commonwealth v. Cannavo, 199 A.3d 1282,

1289 (Pa. Super. 2018) (stating that “[w]e shall not develop an argument for

an appellant, nor shall we scour the record to find evidence to support an

argument; instead, we will deem [the] issue to be waived” (citations and

quotation marks omitted)).

Here, we conclude that Appellant has failed to adequately develop his

various arguments regarding the search warrants for appellate review. In

support of his claims, Appellant presents only boilerplate allegations that that

the averments in the affidavits do not amount to probable cause. See Kane,

10 A.3d at 331. Further, he does not discuss the record or include any

citations. See id. With respect to Appellant’s jurisdictional claims, he does

not develop those issues with citations to the record, to indicate where the

cell phone records were held or where the search was conducted. For these

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reasons, we conclude that Appellant has waived these claims for appellate

review.8 See id.; Cannavo, 199 A.3d at 1289.

Evidentiary Rulings

In his next four claims, Appellant challenges various evidentiary rulings

by the trial court. Briefly, Appellant argues that the trial court erred in

admitting (1) cell phone records; (2) Appellant’s threats to kill three

individuals involved in these cases; (3) the name of the assistant district

attorney Appellant had threatened; and (4) Appellant’s nickname. Appellant’s

Brief at 30-42, 48.

In reviewing Appellant’s evidentiary claims, we are guided by the

following principles:

Questions concerning the admissibility of evidence are within the

sound discretion of the trial court[,] and we will not reverse a trial

court’s decision concerning admissibility of evidence absent an

abuse of the trial court’s discretion. An abuse of discretion is not

merely an error of judgment[ but, rather, is] the overriding or

____________________________________________

8 Although jurisdiction is non-waivable, we find no merit to Appellant’s

boilerplate and undeveloped challenges. The trial court concluded that the

judges issuing the search warrants for historical CSLI had jurisdiction pursuant

to Commonwealth v. Dougalewicz, 113 A.3d 817 (Pa. Super. 2015), and

we discern no basis upon which to find that trial court erred.

Further, the record reflects that Northampton County officers seized the cell

phones pursuant to a Northampton County warrant, and requested that a lab

in Lehigh County assist with their investigation. The trial court concluded that

Section 8953 of the Municipal Police Jurisdiction Act applied, and we discern

no basis upon which to find error. See 42 Pa.C.S. § 8953; see also

Commonwealth v. Bellamy, 252 A.3d 656, 659 (Pa. Super. 2021) (noting

that narcotics seized by Lackawanna County police pursuant to a search

warrant were sent the Pennsylvania State Police Wyoming Crime Lab for

further testing).

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misapplication of the law, or the exercise of judgment[,] that is

manifestly unreasonable, or the result of bias, prejudice, ill-will[,]

or partiality, as shown by the evidence of record. If in reaching a

conclusion the trial court overrides or misapplies the law,

discretion is then abused[,] and it is the duty of the appellate court

to correct the error.

Relevance is the threshold for admissibility of evidence.

Evidence is relevant if it logically tends to establish a material fact

in the case, tends to make a fact at issue more or less probable,

or tends to support a reasonable inference or proposition

regarding a material fact. Relevant evidence may nevertheless be

excluded if its probative value is outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the jury,

or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.

Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citations

omitted and formatting altered), appeal denied, 244 A.3d 1222 (Pa. 2021).

When the issue concerns the “proper interpretation” of the Pennsylvania

Rules of Evidence, “the question is a legal one, which means our standard of

review is de novo, and our scope of review is plenary. In interpreting the

meaning of Pennsylvania Rules of Evidence, we ascribe to the words of those

rules their plain and ordinary meaning.” Commonwealth v. Huggins, 68

A.3d 962, 966 (Pa. Super. 2013) (citations omitted). Finally, it is well settled

that “[t]o constitute reversible error, an evidentiary ruling must not only be

erroneous, but also harmful or prejudicial to the complaining party.”

Commonwealth v. Bond, 190 A.3d 664, 667 (Pa. Super. 2018) (citation

omitted).

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Cell Phone Records

Appellant argues that the trial court erred in admitting cell phone

company records under the hearsay exception for self-authenticating business

records. Appellant’s Brief at 30-38 (citing Pa.R.E. 803(6), 902(11)). In

support, Appellant claims that at the hearing on his motion in limine, he

presented evidence that phone companies do not keep call records and

location data for individual cell phone subscribers in the ordinary course of

business, and instead generate those reports for law enforcement upon

request. Id. at 31-34 (citing N.T. Mot. Hr’g, 1/17/19, at 6-42; 52-54).

Therefore, Appellant reasons that these cell phone records do not qualify as

self-authenticating certified domestic records of regularly conducted business

activity and are inadmissible hearsay. Id. at 32-33.

Appellant notes that “[i]nvestigators frequently use cell phone tower

information in an attempt to place a suspect near a crime scene,” which is

known as historical cell site analysis. Id. at 31, 36. Appellant contends that

his expert witness established that “[t]he precise location of the cell telephone

cannot be known with the use of historical call detail records.” Id. at 35.

Therefore, Appellant argues that the cell phone records were not relevant,

unfairly prejudicial, and would tend to mislead the jury because they could not

“precisely determine a caller’s location” and “[t]here is no basis even to infer

that any particular cell phone call used the closest tower or the nearest tower”.

Id. at 36-38. For these reasons, Appellant concludes the trial court abused

its discretion in admitting the cell phone records into evidence.

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Rule of Evidence 902 states, in relevant part:

The following items of evidence are self-authenticating; they

require no extrinsic evidence of authenticity in order to be

admitted:

(11) Certified Domestic Records of a Regularly

Conducted Activity. The original or a copy of a domestic

record that meets the requirements of Rule 803(6)(A)-(C), as

shown by a certification of the custodian or another qualified

person that complies with Pa.R.C.P. No. 76. Before the trial or

hearing, the proponent must give an adverse party reasonable

written notice of the intent to offer the record--and must make

the record and certification available for inspection--so that the

party has a fair opportunity to challenge them.

Pa.R.E. 902(11).

The Pennsylvania Rules of Evidence define hearsay as an out-of-court

statement offered for the truth of the matter asserted. See Pa.R.E. 801(c).

Generally, hearsay evidence is inadmissible “except as provided by [the Rules

of Evidence], by other rules prescribed by the Pennsylvania Supreme Court,

or by statute.” Pa.R.E. 802. Rule 803(6) provides the following exception to

the hearsay rule for business records:

The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness:

* * *

(6) Records of a Regularly Conducted Activity. A record

(which includes a memorandum, report, or data compilation in

any form) of an act, event or condition if:

(A) the record was made at or near the time by—or from

information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly

conducted activity of a “business”, which term includes

business, institution, association, profession, occupation,

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and calling of every kind, whether or not conducted for

profit;

(C) making the record was a regular practice of that activity;

Pa.R.E. 803(6)(A)-(C).

In Commonwealth v. McEnany, 732 A.2d 1263 (Pa. Super. 1999),

this Court addressed the admissibility of Cellular One’s computer-generated

cell phone call records. McEnany, 732 A.2d at 1272. The McEnany Court

concluded that because the Commonwealth established that Cellular One’s

“computer systematically and contemporaneously creates a record of every

telephone call made on its system” for billing purposes, the phone records

were business records, and therefore admissible as an exception to the

hearsay rule.9 Id. at 1272-73. Further, the McEnany Court observed:

The fact that the records had to be translated to English [from

Cellular One’s electronic data files] before their use at trial does

not negate the fact that the records were created in the regular

course of Cellular One’s business at the moment the telephone

calls were made. Hence, the records themselves were not

prepared for the trial of this case. If we were to accept [the

defendant’s] narrow interpretation of the business records

exception to the hearsay rule, then otherwise trustworthy

evidence would be excluded simply because it needed to be

translated so as to be understandable by the finder of fact. This

result is in direct contravention of the purpose of the business

records exception to the hearsay rule; i.e., to permit the

admission of records made in the regular course of business where

____________________________________________

9The McEnany Court ruled that the Cellular One’s records were admissible

under the Uniform Business Records as Evidence Act, 42 Pa.C.S. § 6108.

McEnany, 732 A.2d at 1272-73. Subsequently, on January 1, 2002, our

Supreme Court adopted Pa.R.E. 902(11). Nevertheless, we conclude that the

holding of McEnany is applicable to this case.

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the sources of information, method and time of preparation are

such as to justify its admission.

Id. at 1273 n.3.

This Court has also stated that “there exists no legitimate dispute

regarding the reliability of historical cell-site analysis,” and held “that scientific

evidence concerning historical cell-site analysis is not novel, and its

admissibility is not subject to the requirements of Frye [v. United States,

293 F. 1013 (D.C. Cir. 1923)].” Commonwealth v. Nevels, 203 A.3d 229,

241 (Pa. Super. 2019).

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

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

court’s opinion regarding the admission of the cell phone call records. See

Trial Ct. Op., 10/23/19, at 14-21. Specifically, we agree with the trial court

that the cell phone records were admissible under the business records

exception to the hearsay rule. See id. at 14-19; see also Pa.R.E. 803(6),

902(11); LeClair, 236 A.3d at 78; McEnany, 732 A.2d at 1272-73, 1273 n.3.

We also agree with that the trial court’s conclusion that the cell phone records

were admissible because the records were relevant and their probative value

outweighed any danger of unfair prejudice or misleading the jury. See Trial

Ct. Op., 10/23/19, at 19-21; see also LeClair, 236 A.3d at 78; Nevels, 203

A.3d at 241. Therefore, Appellant is not entitled to relief on this issue.

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Appellant’s Threats

Appellant argues that the trial court erred in admitting his statement

that he wanted the Assistant District Attorney killed without redacting the

prosecutor’s name as evidence of Appellant’s consciousness of guilt.

Appellant’s Brief at 39-40. Appellant contends that the prosecutor’s name,

was not relevant as to whether the statement implicated Appellant’s

consciousness of guilt. Id. Appellant also claims that the inclusion of the

prosecutor’s name was unfairly prejudicial because the attorney represented

the Commonwealth at Appellant’s trial and this evidence “tended to cause a

distinct risk that jurors [would] sympathize[] with the Assistant District

Attorney and br[ing] that prejudice to bear against [Appellant].” Id. at 39-

40.

Relatedly, Appellant argues that the trial court erred in admitting alleged

death threats that Appellant made against three individuals involved in these

cases. Id. at 48. Appellant asserts that “[t]he subject threats did not fit any

of the exceptions to the proscription against prior bad acts. They did not

relate to motive or intent or a common scheme. They were not related to the

charged crimes at all. Accordingly, they are not relevant.” Id. Appellant also

contends that even if the threats were relevant, their prejudicial effect

outweighed their probative value. Id.

Rule 404 provides in relevant part:

(b) Other Crimes, Wrongs, or Acts.

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(1) Prohibited Uses. Evidence of any other crime, wrong, or

act is not admissible to prove a person’s character in order to

show that on a particular occasion the person acted in

accordance with the character.

(2) Permitted Uses. This evidence may be admissible for

another purpose, such as proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or

lack of accident. In a criminal case this evidence is admissible

only if the probative value of the evidence outweighs its

potential for unfair prejudice.

Pa.R.E. 404(b)(1)-(2).

“[A]ny attempt by a defendant to interfere with a witness’s testimony is

admissible to show a defendant’s consciousness of guilt.” Commonwealth

v. R. Johnson, 838 A 2d 663, 680 (Pa. 2003) (citations omitted).

“[R]egardless of whether or not [the defendant’s] statements constituted

threats, it is apparent that they were intended to influence [the witness’s]

testimony at trial. Accordingly, they are relevant.” Id.

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

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

court’s analysis of this issue.10 See Trial Ct. Op., 10/23/19, at 21-22.

Specifically, we agree with the trial court that the prosecutor’s identity was

relevant to establish Appellant’s consciousness of guilt because she was

____________________________________________

10 We note that the trial court opinion contains a typographical error referring

to its orders of July 19, 2018 and March 7, 2019 denying Appellant’s motion

in limine. Our review of the record indicates that the trial court denied

Appellant’s motion in limine to redact the prosecutor’s name from the evidence

about the threat against her on February 1, 2019. See Trial Ct. Order, 2/1/19,

at 1-2.

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directly involved in Appellant’s case. See id.; accord R. Johnson, 838 A 2d

at 680.

As for Appellant’s claim that the death threats against three individuals

involved in these cases were inadmissible prior bad acts evidence, Appellant

only presents bald assertions in support of this claim. Further, Appellant has

failed to develop his arguments with individual discussions of the three threats

or include citations to relevant legal authorities and to the record. Therefore,

we conclude that Appellant has waived this issue on appeal. See Cannavo,

199 A.3d at 1289; Kane, 10 A.3d at 331.

Appellant’s Nickname

Appellant argues that the trial court erred in admitting evidence

establishing that Appellant’s nickname is “Trig”.11 Appellant’s Brief at 41-42.

Appellant contends that the “Trig” nickname was not relevant and was unduly

prejudicial because “Trig” “impermissibly suggested [a] violent character” in

a case involving firearms. Id. at 41-42.

In Commonwealth v. Williams, 58 A.3d 796 (Pa. Super. 2012), the

defendant argued that his nickname “Killa” should not be admitted at his

murder trial because it was overly prejudicial as the jury could infer that it

meant “killer.” Williams, 58 A.3d at 800. On appeal, this Court affirmed the

trial court’s decision to admit the defendant’s nickname as evidence at trial,

concluding that “the evidence’s probative value in identifying [the defendant]

____________________________________________

11Appellant’s nickname is spelled both “Trig” and “Trigg” in the record. We

use “Trig” throughout for consistency.

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outweighed any prejudice that resulted from the use of his nickname.” Id. at

800-01.

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

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

court’s analysis of this issue. See Trial Ct. Op., 10/23/19, at 22-25.

Specifically, we find that the trial court properly concluded that the nickname

“Trig” was relevant to prove identity, and that its probative value outweighed

its potential for unfair prejudice. See id. at 25; see also LeClair, 236 A.3d

at 78; Williams, 58 A.3d at 800-01.

Consolidation of Charges

Appellant next claims that the trial court abused its discretion in

consolidating his seven cases for trial. Appellant’s Brief at 43-47. Specifically,

Appellant argues that he suffered prejudice because the risk of unfair

prejudice from admitting evidence from the individual cases in a joint trial for

all cases outweighed the probative value of that evidence. Id. at 44-46 (citing

Commonwealth v. Morris, 425 A.2d 715, 720 (Pa. 1981); Pa.R.E. 404(b)).

Appellant argues that the consolidation of the seven separate cases for trial

resulted in the jury improperly inferring Appellant had a criminal disposition

and improperly cumulating the evidence from the separate cases to convict

Appellant where a jury would not have do so if the cases were tried separately.

Id. at 47. Therefore, Appellant concludes the trial abused its discretion in

consolidating the separate cases for a joint trial.

This Court has explained that:

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The general policy of the laws is to encourage joinder of offenses

and consolidation of indictments when judicial economy can

thereby be effected, especially when the result will be to avoid the

expensive and time consuming duplication of evidence. Whether

to join or sever offenses for trial is within the trial court’s discretion

and will not be reversed on appeal absent a manifest abuse

thereof, or prejudice and clear injustice to the defendant.

Commonwealth v. J. Johnson, 236 A.3d 1141, 1150 (Pa. Super. 2020) (en

banc) (citations and quotation marks omitted), appeal denied, 242 A.3d 304

(Pa. 2020).

Pennsylvania Rule of Criminal Procedure 582 provides, in relevant part:

(1) Offenses charged in separate indictments or informations may

be tried together if:

(a) the evidence of each of the offenses would be admissible in

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

the jury so that there is no danger of confusion; or

(b) the offenses charged are based on the same act or

transaction.

Pa.R.Crim.P. 582(A)(1)(a)-(b); see also Pa.R.Crim.P. 583 (providing that

“[t]he court may order separate trials of offenses . . ., or provide other

appropriate relief, if it appears that any party may be prejudiced by offenses

. . . being tried together”).

This Court has explained:

Where the defendant moves to sever offenses not based on the

same act or transaction . . . the court must therefore determine:

(1) whether the evidence of each of the offenses would be

admissible in a separate trial for the other; (2) whether such

evidence is capable of separation by the jury so as to avoid danger

of confusion; and, if the answers to these inquiries are in the

affirmative, (3) whether the defendant will be unduly prejudiced

by the consolidation of offenses.

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Pursuant to this test, a court must first determine if the evidence

of each of the offenses would be admissible in a separate trial for

the other.

Evidence of crimes other than the one in question is not admissible

solely to show the defendant’s bad character or propensity to

commit crime. Nevertheless evidence of other crimes is

admissible to demonstrate (1) motive; (2) intent; (3) absence of

mistake or accident; (4) a common scheme, plan or design

embracing the commission of two or more crimes so related to

each other that proof of one tends to prove the others; or (5) the

identity of the person charged with the commission of the crime

on trial. Additionally, evidence of other crimes may be admitted

where such evidence is part of the history of the case and forms

part of the natural development of the facts.

Additionally, where a trial concerns distinct criminal offenses that

are distinguishable in time, space and the characters involved, a

jury is capable of separating the evidence.

Commonwealth v. Dozzo, 991 A.2d 898, 902-03 (Pa. Super. 2010)

(citations omitted and formatting altered).

In Dozzo, the Court emphasized that were “numerous similarities”

between the seven robbery cases that were consolidated for trial. Id. at 903.

Specifically, the Court noted that they each occurred at or near train stations

in Philadelphia, took place during off-hours for those stations, involved similar

allegations about the circumstances of each theft, and the description of the

robber was similar in each case. Id. at 903. Therefore, the Dozzo Court

concluded that consolidation was proper and did not cause the defendant

undue prejudice. Id. at 904.

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

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

court’s analysis of this issue. See Trial Ct. Op., 10/23/19, at 25-28.

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Specifically, we find that the trial court properly concluded that the evidence

in each of the cases would be admissible in separate trials for the cases, the

jury could separate the evidence and there was no danger of confusion, and

Appellant was not unduly prejudiced. See id. at 26-28; see also J. Johnson,

236 A.3d at 1150; Dozzo, 991 A.2d at 902-04.

Motion for Mistrial

Appellant argues that the trial court erred in denying his motion for a

mistrial and instead issuing a curative instruction after Detective Leauber

identified Appellant as an individual depicted in a video of one of the robberies.

Appellant’s Brief at 49-50. Appellant contends that curative instruction was

insufficient to cure the prejudice from the officer’s testimony because

identification was a central aspect of his defense. Id.

This Court has explained that

The trial court is in the best position to assess the effect of an

allegedly prejudicial statement on the jury, and as such, the grant

or denial of a mistrial will not be overturned absent an abuse of

discretion. A mistrial may be granted only where the incident

upon which the motion is based is of such a nature that its

unavoidable effect is to deprive the defendant of a fair trial by

preventing the jury from weighing and rendering a true verdict.

Likewise, a mistrial is not necessary where cautionary instructions

are adequate to overcome any possible prejudice.

Commonwealth v. Parker, 957 A.2d 311, 319 (Pa. Super. 2008) (citations

omitted).

“When the trial court provides cautionary instructions to the jury in the

event the defense raises a motion for mistrial, the law presumes that the jury

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will follow the instructions of the court.” Id. (citation omitted and formatting

altered). Courts “must consider all surrounding circumstances before finding

that curative instructions were insufficient and the extreme remedy of a

mistrial is required.” Commonwealth v. Manley, 985 A.2d 256, 266 (Pa.

Super. 2009) (citations omitted).

In Commonwealth v. McClain, 472 A.2d 630 (Pa. Super. 1984), the

defendant moved for a mistrial after the victim twice named the defendant as

her assailant during her testimony, even though the Commonwealth had

previously stipulated that the victim would not be asked to identify the

defendant during trial. McClain, 472 A.2d at 633. The trial court denied the

defendant’s motion for a mistrial, struck the victim’s testimony identifying

defendant as her assailant, and instructed for the jury to disregard that

testimony. Id. This Court affirmed, concluding that “the Commonwealth’s

clarification of the victim’s testimony coupled with the prompt and thorough

cautionary instruction given by the court, removed any possible prejudicial

effect.” Id. at 634.

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

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

court’s analysis of this issue. See Trial Ct. Op., 12/20/19, at 5-7. Specifically,

we find that the trial court properly concluded that its “curative instruction

was sufficient to remove any prejudice” to Appellant. See id. at 6; see also

Parker, 957 A.2d at 319 (stating that “the law presumes that the jury will

follow the instructions of the court”); McClain, 472 A.2d at 633-34.

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Sufficiency

Appellant also challenges the sufficiency of the evidence on several

grounds. Briefly, Appellant argues that the evidence was insufficient to (1)

identify him as the perpetrator; (2) establish the element of kidnapping that

the victims were moved a substantial distance or confined for a substantial

period of time; and (3) establish that the element of second-degree murder

that he was an accomplice to the killing of Michael Davis. Appellant’s Brief at

16-19.

In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

Because a determination of evidentiary sufficiency presents a

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

of review is plenary. In reviewing the sufficiency of the evidence,

we must determine whether the evidence admitted at trial and all

reasonable inferences drawn therefrom, viewed in the light most

favorable to the Commonwealth as verdict winner, were sufficient

to prove every element of the offense beyond a reasonable doubt.

[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence. It is within the

province of the fact-finder to determine the weight to be accorded

to each witness’s testimony and to believe all, part, or none of the

evidence. The Commonwealth may sustain its burden of proving

every element of the crime by means of wholly circumstantial

evidence. Moreover, as an appellate court, we may not re-weigh

the evidence and substitute our judgment for that of the fact-

finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (citation

omitted).

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Sufficiency: Identification

Appellant challenges the sufficiency of the evidence identifying him as

the perpetrator. Specifically, Appellant claims that the evidence was

insufficient to establish his identity because “the trial court relied heavily upon

the trial testimony of Vaughn Felix” in denying his post-sentence motion

challenging the sufficiency of the identification evidence. Appellant’s Brief at

17. Appellant claims that Felix “will now testify that the information he gave

police implicating [Appellant], and that his trial testimony, were false. This

undercuts the sufficiency substantially.” Id.

This Court has explained that

[E]vidence of identification need not be positive and certain to

sustain a conviction. Although common items of clothing and

general physical characteristics are usually insufficient to support

a conviction, such evidence can be used as other circumstances

to establish the identity of a perpetrator. Out-of-court

identifications are relevant to our review of sufficiency of the

evidence claims, particularly when they are given without

hesitation shortly after the crime while memories were fresh.

Given additional evidentiary circumstances, any indefiniteness

and uncertainty in the identification testimony goes to its weight.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en banc)

(citations and quotation marks omitted).

Appellant’s argument regarding the identification evidence relies on his

claim of after-discovered evidence and does not challenge the sufficiency of

the evidence presented at trial. See Palmer, 192 A.3d at 89 (stating that

when “reviewing the sufficiency of the evidence, we must determine whether

the evidence admitted at trial . . . [was] sufficient to prove every element

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of the offense beyond a reasonable doubt” (citation omitted and emphasis

added)). Therefore, we conclude that because Appellant relies on evidence

that was not presented at trial, he has not presented a proper sufficiency claim

regarding the identification evidence at trial.

Further, to the extent Appellant challenges the reliability of the Felix’s

identification at trial, that claim goes to the weight of the evidence, not the

sufficiency. See Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super.

2013) (stating that an argument as to the “credibility of the Commonwealth’s

chief witness” is a challenge to the weight, not the sufficiency, of the

evidence); see also Commonwealth v. D. Davis, 799 A.2d 860, 864 (Pa.

Super. 2002) (reiterating that weight and sufficiency claims “are discrete

inquiries”). Appellant did not challenge the weight of the evidence at

sentencing or in a post-sentence motion, and he did not include this issue in

his Rule 1925(b) statement. Therefore, Appellant waived any challenge to the

weight of the evidence. See Griffin, 65 A.3d at 938 (stating that the

defendant’s weight of the evidence claim was “waived for failure to present

claim in the lower court, either orally or in writing before sentencing or in a

post-sentence motion, and failure to present argument in court-ordered

statement, pursuant to Pa.R.Crim.P. 607; Pa.R.A.P. 1925(b)(4)(vii)” (citation

omitted)); see also Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in the

trial court are waived and cannot be raised for the first time on appeal”).

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Sufficiency: Kidnapping

Next, Appellant argues that there was insufficient evidence to support

his convictions for kidnapping because the evidence did not establish that he

moved the victims a substantial distance or confined the victims for a

substantial period of time. Appellant’s Brief at 18-19. However, in his brief,

Appellant has failed to specify which of the seven kidnapping convictions he

intends to challenge on appeal. Further, even assuming that Appellant’s claim

relates to all seven counts, Appellant has failed to develop his arguments by

citing to the record or discussing the specific evidence supporting each charge.

It is Appellant’s responsibility to develop his arguments for appellate review,

and it is not the role of this Court to scour the record for support for Appellant’s

claims. See Cannavo, 199 A.3d at 1289. Therefore, this claim is waived.

See id.; Kane, 10 A.3d at 331.

Sufficiency: Murder

Lastly, Appellant challenges the sufficiency of evidence to sustain his

conviction for second-degree murder. Appellant’s Brief at 17-18. Appellant

contends that the evidence only establishes that Appellant was present when

Felix shot and killed Michael Davis, and that “mere presence at the scene of

the crime is not enough to establish accomplice liability.” Id. at 18 (citation

omitted).

“A criminal homicide constitutes murder of the first degree when it is

committed by an intentional killing.” 18 Pa.C.S. § 2502(a). “A criminal

homicide constitutes murder of the second degree when it is committed while

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defendant was engaged as a principal or an accomplice in the perpetration of

a felony.” 18 Pa.C.S. § 2502(b). For the purposes of second-degree murder,

“perpetration of a felony” is defined as “[t]he act of the defendant in engaging

in or being an accomplice in the commission of, or an attempt to commit, or

flight after committing, or attempting to commit robbery, . . . burglary or

kidnapping.” 18 Pa.C.S. § 2502(d).

Section 306 of the Crimes Code defines accomplice liability as follows:

(a) General rule.—A person is guilty of an offense if it is

committed by his own conduct or by the conduct of another person

for which he is legally accountable, or both.

(b) Conduct of another.—A person is legally accountable for the

conduct of another person when:

(1) acting with the kind of culpability that is sufficient for the

commission of the offense, he causes an innocent or

irresponsible person to engage in such conduct;

(2) he is made accountable for the conduct of such other

person by this title or by the law defining the offense; or

(3) he is an accomplice of such other person in the commission

of the offense.

(c) Accomplice defined.—A person is an accomplice of another

person in the commission of an offense if:

(1) with the intent of promoting or facilitating the commission

of the offense, he:

(i) solicits such other person to commit it; or

(ii) aids or agrees or attempts to aid such other person in

planning or committing it; or

(2) his conduct is expressly declared by law to establish his

complicity.

(d) Culpability of accomplice.—When causing a particular

result is an element of an offense, an accomplice in the conduct

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causing such result is an accomplice in the commission of that

offense, if he acts with the kind of culpability, if any, with respect

to that result that is sufficient for the commission of the offense.

* * *

(g) Prosecution of accomplice only.—An accomplice may be

convicted on proof of the commission of the offense and of his

complicity therein, though the person claimed to have committed

the offense has not been prosecuted or convicted or has been

convicted of a different offense or degree of offense or has an

immunity to prosecution or conviction or has been acquitted.

18 Pa.C.S. § 306.

When an actor engages in one of the statutorily enumerated

felonies and a killing occurs, the law, via the felony-murder rule,

allows the finder of fact to infer the killing was malicious from the

fact the actor was engaged in a felony of such a dangerous nature

to human life because the actor, as held to the standard of a

reasonable man, knew or should have known that death might

result from the felony.

* * *

The statute defining second degree murder does not require that

a homicide be foreseeable; rather, it is only necessary that the

accused engaged in conduct as a principal or an accomplice in the

perpetration of a felony. Whether evidence sufficiently indicates

that a killing was in furtherance of a predicate felony can be a

difficult question. The question of whether the killing was in

furtherance of the conspiracy is a question of proof for the jury to

resolve. It does not matter whether the appellant anticipated that

the victim would be killed in furtherance of the conspiracy.

Rather, the fact finder determines whether the appellant knew or

should have known that the possibility of death accompanied a

dangerous undertaking.

Commonwealth v. Lambert, 795 A.2d 1010, 1023 (Pa. Super. 2002) (en

banc) (citations omitted and formatting altered).

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The Lambert Court concluded that the evidence was sufficient to

sustain a conviction for second-degree murder when the defendant acted as

an accomplice to the burglary that resulted in the victim’s death because he

“drove [the co-d]efendant to the scene of the crime, waited during the

commission of the crime and facilitated the flight afterwards.” Id.

However, this Court has acknowledged:

A defendant cannot be an accomplice simply based on evidence

that he knew about the crime or was present at the scene.

However, the circumstances change if there is additional evidence

that the defendant intended to aid in the commission of the

underlying crime, and then did or attempted to do so. The amount

of aid need not be substantial so long as it was offered to the

principal to assist him in committing or attempting to commit the

crime.

Commonwealth v. Toritto, 67 A.3d 29, 35 (Pa. Super. 2013) (en banc)

(citation and quotation marks omitted).

Based on our review of the record, and viewing the evidence in the light

most favorable to the Commonwealth as verdict winner, we agree with the

trial court that this testimony was sufficient to establish Appellant was an

accomplice to the murder of Michael Davis. See Trial Ct. Op., 10/23/19, at

5-9. Specifically, we agree that there was sufficient evidence to support

Appellant’s second-degree murder conviction under a theory of accomplice

liability and that Appellant was not “merely present” at the scene of Davis’s

murder. See id. at 8-9; see also Lambert, 795 A.2d at 1023. Therefore,

no relief is due on Appellant’s sufficiency claim for his second-degree murder

conviction.

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New Trial Based on After-Discovered Evidence

In his final claim, Appellant argues the trial court erred by denying his

motion for a new trial based on after-discovered evidence. Appellant’s Brief

at 51-69. By way of background to this issue, although Appellant’s co-

conspirator Vaugh Felix implicated Appellant in his trial testimony, Felix

purportedly signed a written recantation after trial, claiming that he had been

manipulated and coerced into giving false testimony. Id. at 51-52. Appellant

contends that Felix’s statement is after-discovered evidence that would likely

compel a different verdict and warrants the grant of a new trial. Id. at 53.

Further, Appellant notes that at the April 19, 2021 hearing on his motion for

a new trial, Felix testified that neither he nor Appellant were involved in the

November 21, 2016 Davis homicide. Id. at 54-56, 62 (citing N.T. Hr’g,

4/19/21, at 7-8). For these reasons, Appellant contends that the trial court

erred in denying his motion for a new trial based on after-discovered

evidence.12

____________________________________________

12 Appellant also argues that the trial court erred in not assessing Felix’s

invocation of his Fifth Amendment rights on a question-by-question basis to

determine if he had a “legitimate Fifth Amendment privilege” with respect to

each question. Appellant’s Brief at 56-62. Further, Appellant contends that

the trial court erred by concluding Appellant’s exhibits were hearsay and

declining to admit them. Id. at 64-69. However, Appellant did not include

these claims in his statement of questions. See Pa.R.A.P. 2116(a) (stating

that “[n]o question will be considered unless it is stated in the statement of

questions involved or is fairly suggested thereby”). Therefore, we conclude

that these claims are waived. See id.; Commonwealth v. Hodge, 144 A.3d

170, 172 n.4 (Pa. Super. 2016).

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“When we examine the decision of a trial court to grant a new trial on

the basis of after-discovered evidence, we ask only if the court committed an

abuse of discretion or an error of law which controlled the outcome of the

case.” Commonwealth v. Padillas, 997 A.2d 356, 361 (Pa. Super. 2010)

(citation and quotation marks omitted).

Further, in order to prevail on after-discovered evidence claim:

[the defendant] must demonstrate that the evidence: (1) could

not have been obtained prior to the conclusion of the trial by the

exercise of reasonable diligence; (2) is not merely corroborative

or cumulative; (3) will not be used solely to impeach the credibility

of a witness; and (4) would likely result in a different verdict if a

new trial were granted.

The test is conjunctive; the defendant must show by a

preponderance of the evidence that each of these factors has been

met in order for a new trial to be warranted.

Id. at 363 (citations omitted and formatting altered).

Additionally, our Supreme Court has recognized that “recantation

evidence is notoriously unreliable, and where it involves an admission of

perjury, it is the least reliable source of proof.” Commonwealth v.

Hannibal, 156 A.3d 197, 222 (Pa. 2016) (citing, inter alia, Commonwealth

v. Henry, 706 A.2d 313, 321 (Pa. 1997)). “The trial court has the

responsibility of judging the credibility of the recantation. Unless the trial

court is satisfied that the recantation is true, it should deny a new trial.”

Henry, 706 A.2d at 321 (citations omitted).

The trial court concluded that Felix’s brief testimony was insufficient to

meet Appellant’s burden that the after-discovered evidence would result in a

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different verdict because recantation testimony is “exceedingly unreliable”.

See Trial Ct. Order, 7/16/21, at 3-4.

Based on our review of the record, we discern no abuse of discretion in

the trial court’s denial of Appellant’s motion for a new trial. See Padillas,

997 A.2d at 361. Specifically, we conclude that the trial court did not abuse

its discretion in concluding that Felix’s recantation testimony was not credible.

See Hannibal, 156 A.3d at 222; Henry, 706 A.2d at 321. Therefore,

Appellant failed to prove, by a preponderance of the evidence, that the after-

discovered evidence would likely result in a different verdict, and he is not

entitled to relief on this claim. See Padillas, 997 A.2d at 363.

Accordingly, Appellant is not entitled to relief. For these reasons, we

affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/29/2022

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