Com. v. Clark, S.

• Court: Superior Court of Pennsylvania
• Decided: February 13, 2024
• Docket: 552 WDA 2022
• Status: Unpublished

Opinion

J-A11022-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : SHAURICE DUPRE CLARK : : Appellant : No. 552 WDA 2022

Appeal from the Judgment of Sentence Entered January 19, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000230-2021

BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*

MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 13, 2024

We previously remanded this matter to the trial court for the limited

purpose of holding a hearing regarding search warrants that this Court

deemed invalid in Commonwealth v. Clark, No. 552 WDA 2022, unpublished

memorandum (Pa. Super. filed Sept. 11, 2023). We noted in our decision that

it was unclear what evidence, if any, the Commonwealth obtained due to the

execution of the warrants. Upon review of the transcript, we conclude that

Appellant, Shaurice Dupre Clark, is not entitled to relief and affirm Appellant’s

judgment of sentence.

A complete factual and procedural history is unnecessary, and we briefly

discuss the points relevant to the remand.

On August 30, 2020, at 7:03 p.m., officers were dispatched to investigate a reported shooting at 17th and Poplar Streets. A few ____________________________________________

* Retired Senior Judge formerly assigned to the Superior Court. J-A11022-23

minutes later, officers received reports of another shooting at 16th and Chestnut, which was approximately five blocks from the Poplar shooting. Patrolman Leroy Learn was the first to arrive, and he observed five shell casings on the ground. Patrolman Justin Seath arrived shortly afterwards, and a witness handed him an item described as “a small wallet keychain,” which the witness had found on the ground. N.T. Trial, 11/5/21, at 86. That item included a key to a Mitsubishi vehicle, as well as a WIC card1 bearing a sixteen-digit identification number. Sergeant Craig Stoker later served a search warrant on the Commonwealth’s Department of Health and determined that the card belonged to Savannah Lopez, who had a son, L.C. Further investigation established that Appellant was the father of L.C. DNA testing established that Appellant’s “DNA was one of three individuals with DNA on the key and keychain….” Trial Court Opinion, 9/1/22, at 9. Additionally, officers discovered that the Mitsubishi had been struck by bullets at the Poplar scene.

The police located several surveillance cameras and obtained the relevant recordings, one of which shows the shooter pursuing a black BMW. As described in the affidavits of probable cause for the search warrants, the video depicts “a black male with long hair wearing a dark colored sweat shirt with a zipper. Under the sweat shirt[,] the driver/shooter had on a purple t-shirt with a square picture. He was also wearing dark colored pants and purple and black shoes.” Affidavit of Probable Cause, 10/15/20, at 2. Patrolman Nicholas Strauch immediately identified Appellant as the man depicted in the videos and, on this basis, the police began investigating Appellant as the primary suspect.

1 The Special Supplemental Nutrition Program for Women, Infants

and Children.

Id. at *2-3.

At trial, the Commonwealth introduced photographs taken from

Facebook accounts depicting Appellant wearing purple shoes, as well as an

image of an individual with his back to the camera wearing a sweatshirt with

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a photograph. The Commonwealth argued that these articles matched what

the shooter wore as depicted in the surveillance video.

On appeal, Appellant raised four claims, the fourth of which challenged

search warrants executed upon Appellant’s cell phone and Facebook accounts.

Specifically, a warrant prepared on October 15, 2020, targeted Appellant’s cell

phone, and a warrant prepared on October 21, 2020, authorized a search of

three Facebook accounts. We agreed that the trial court erred in not

suppressing the warrants. For present purposes, we note that we concluded

the search warrant targeting Appellant’s phone was entirely overbroad, as the

purported basis for issuing the warrant was to obtain exculpatory information.

According to the affidavit of probable cause, Appellant told officers after his

arrest that he had taken photographs at a birthday party around the time of

the shooting. The warrant sought to search the phone because “pictures taken

with an iPhone contain[] metadata that gives time stamps and locations.” Id.

at *21 (quoting affidavit). We concluded that probable cause to search the

phone was wholly lacking, because evidence tending to show that an individual

did not commit a crime is not the proper subject of a search warrant.

The second warrant was served on Facebook and targeted three

Facebook accounts, two of which belonged to Appellant (identified as “Dupree

Clark” and “Guap Prince”).1 The warrant sought, inter alia, all photos uploaded

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1 The third account belonged to Savannah Lopez, with whom Appellant had a

child. The only evidence introduced from these accounts showed Appellant, Lopez, and the child. These items were publicly accessible.

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by the account owner and all communications and messages made or received

by the account owner. The affidavit of probable cause sought this information

on the basis that “it is not uncommon for people involved in criminal activity

to use social media prior to and after the commission of a crime.” Id. at *29.

We concluded that this warrant was also overbroad because the

Commonwealth “sought the complete contents of these Facebook accounts

instead of limiting it temporally.” Id. at *31. We explained that, “[w]hile we

do not express any opinion on whether probable cause existed to do so, the

Commonwealth easily could have requested to obtain only direct messages

during the relevant timespan. Instead, it chose to obtain virtually everything

that Facebook captures. We therefore conclude that the Facebook warrants

are overbroad.” Id.

Notwithstanding the DNA evidence tying Appellant to the discarded

keychain, we declined to find that the error was harmless beyond a reasonable

doubt because “the Commonwealth’s own filings reflect uncertainty that

identification was guaranteed based solely on that evidence. The Facebook

images constituted powerful corroborating evidence, and we are not presently

inclined to sua sponte declare at this juncture, without the benefit of advocacy

from both parties, that the error was harmless beyond a reasonable doubt.”

Id. Furthermore, we could not “determine what evidence should have been

suppressed.” Id. at *32. The application for the first warrant, which preceded

the Facebook warrants, had referenced the existence of photographs it had

obtained from Facebook, including a photograph depicting Appellant in purple

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shoes. Therefore, the “Commonwealth may have obtained this information

from publicly-accessible portions of Facebook.” Id. If so, those items were

knowingly exposed to the public and therefore not subject to the Fourth

Amendment. Because the record did not indicate what evidence, if any,

introduced at trial was obtained from execution of the defective warrants, we

remanded for a hearing.

The trial court held a hearing on October 10, 2023. The Commonwealth

called Detective Craig Stoker, who prepared the search warrant and served as

the lead investigator, as its sole witness. He testified that, to his knowledge,

no evidence recovered from the execution of the phone warrant was

introduced at trial. N.T., 10/10/23, at 6.

Regarding the photographs introduced at trial, Detective Stoker testified

that Exhibit 39 was uploaded on August 29, 2020, and showed Appellant

“standing at 17th and Poplar with some emojis and some sayings and things

like that.” Id. at 17. Exhibit 40 was uploaded on August 28, 2020, and

showed Appellant “standing at the convenience store.” Id. at 19. Exhibit 41

was uploaded on August 31, 2020, and showed Appellant “standing in front of

the convenience store wearing the same clothing as the previous two pictures,

in the purple shoes. It says, ‘besides the BS, life’s great.’” Id. at 20.

Detective Stoker stated that all three exhibits were “found on Dupre Clark’s

Facebook page[.]” Id. at 21. Upon questioning from the trial court, Detective

Stoker confirmed that the images were available to all members of the public.

Id. at 55 (“I got on Facebook and publicly – I’m not friends with either Ms.

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Lopez or [Appellant]. So everything that I view from them has to be a public

page.”).2

Commonwealth Exhibits 42, 43, and 44 all came from either the Guap

Prince or Dupre Clark Facebook pages. Exhibit 42 was a video uploaded on

July 24, 2020, and showed a man wearing a shirt that the Commonwealth

argued matched that of the shooter as depicted on the surveillance video.

Exhibit 43 was a photograph uploaded on July 25, 2020, and also showed that

shirt. Exhibit 44 was uploaded on November 23, 2019. It showed “a man

standing facing away from the camera with a black hooded sweatshirt.” Id.

at 22. The Commonwealth then asked Detective Stoker to explain if he

possessed any of these photographs prior to searching Appellant’s phone and

Facebook accounts. The following exchange occurred:

A. After the security video was obtained from – the video was analyzed and [Appellant] was [identified] as Mr. Clark. I then spoke with patrolman – well, now Detective Strauch who is familiar with the Erie Police Department social media and who also monitors the social media for the Erie Police Department. At which time he advised me of two Facebook pages that [Appellant] had currently on – in the public to see.

Q. Let’s just be clear. First of all, [Appellant] was identified by Officer Nicholas Strauch of the Erie Police Department from the surveillance video.

A. Correct.

.... ____________________________________________

2 We had noted in our remand order that other jurisdictions have addressed,

in deciding whether an individual had a reasonable expectation of privacy in social media postings, the question of whether a government agent can become “false friends” with the target. Clark, No. 552 WDA 2022 at *32.

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Q. And was he able to provide you with two associated accounts related to [Appellant]’s Facebook?

Q. And what were those accounts?

A. Dupre Clark and Guap Prince.

Q. Now, prior to obtaining the warrant, did you review those pages?

A. I did.

Q. And were you able to obtain photographs relevant to your shooting investigation prior to the warrant?

Q. Now, what associated photographs did you already have prior to the execution of the warrant?

A. I had the first one.

Q. And just to be clear for the record, the first one we’re talking about … [is] Exhibit 39?

A. Yes.

Q. Okay. And once again, how did you obtain them?

A. It was posted on Dupre Clark’s public page.

Q. Were you able to access that just through going onto Facebook without obtaining the Facebook records from the company?

Id. at 27-29.

Detective Stoker additionally stated that he had Commonwealth Exhibits

40 and 41 in his possession prior to executing the warrants. He explained

that he obtained those photographs from the public portions of the

corresponding Facebook accounts. Id. at 30 (“You click on their profile and

these are the posts that they had posted publicly for everybody to see.”).

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Commonwealth Exhibits 42, 43, and 44, were possibly obtained from the

execution of the search warrant. Id. at 31 (“Q. And you do not recall having

those photographs prior to getting the warrant[?] A. No, I do not recall one

way or the other.”).

We conclude that Appellant is not entitled to a new trial. Commonwealth

Exhibits 39, 40, and 41 were photographs that the Commonwealth already

had in its possession prior to the execution of the warrants. 3 Therefore, a

subset of the evidence introduced at trial was not the product of the search

warrant and, thus, was not subject to suppression.

Simultaneously, it appears that at least some of the photographs and

videos introduced at trial may have been obtained from execution of the

warrants. We will assume that Commonwealth Exhibits 42, 43, and 44 were

obtained from the execution of an invalid warrant. We conclude that the

erroneous admission of that evidence was harmless beyond a reasonable

doubt.

Once a reviewing court has decided that admitted evidence should have been suppressed, it must determine beyond a reasonable doubt whether the error was harmless. Where the error is harmless, a new trial is not warranted. Harmless error exists if the reviewing court is convinced from the record that (1) the error did not prejudice the defendant or the prejudice was de minimis, (2) the erroneously admitted evidence was merely cumulative of other untainted evidence, or (3) the properly admitted and ____________________________________________

3 We did not direct the trial court to prepare an opinion following the remand.

We do not conclude that an explicit credibility finding is necessary on this point, as the affidavit referenced the existence of the photographs, and the photographs objectively existed. Moreover, Appellant did not assert on cross- examination that the material was inaccessible to the public.

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uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the guilty verdict.

Commonwealth v. Petroll, 738 A.2d 993, 1005 (Pa. 1999) (citation

omitted). Because some of the photographs depicting Appellant wearing

purple sneakers were lawfully obtained, any additional photographs obtained

from the execution of the warrant were merely cumulative of the untainted

photographs, as the erroneously admitted additional photographs were of

similar character. To the extent that the Commonwealth did not possess any

photographs showing Appellant’s sweatshirt, we conclude that the error did

not prejudice Appellant. Our previous memorandum decision incorporated

still photographs taken from the surveillance video, and the purple sneakers

are distinctive in a way that the sweatshirt is not. We are persuaded that the

introduction of the sweatshirt photographs was harmless beyond a reasonable

Next, we note that the remand hearing established that the execution

of the search warrants led to evidence tying the phone to Appellant via

execution of the search warrant, as the email addresses associated with the

Prince Guap and Dupre Clark Facebook accounts were email addresses that

were stored on Appellant’s phone. On cross-examination, Appellant

established that it was possible the photographs Detective Stoker had

referenced in the affidavit of probable cause warrant for Appellant’s phone

may have come from either the Guap Prince Facebook account or the Dupre

Clark Facebook account. As well, the execution of the Facebook warrants

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produced business records which left little doubt that Appellant operated the

accounts.4 Moreover, those records definitively established the dates on which

the photographs and videos were uploaded to the accounts.

The records obtained from Facebook should have been excluded, which

includes the records concerning authentication. However, we again conclude

that this error was harmless beyond a reasonable doubt. In our prior

memorandum decision, we rejected Appellant’s claim that the Commonwealth

failed to prove that Appellant authored the Facebook posts in question. We

concluded that Appellant waived the claim; alternatively, we concluded that

the Commonwealth presented sufficient evidence to authenticate the

evidence.

Here, Appellant essentially concedes that the Commonwealth established that he owned and controlled the accounts. See Appellant’s Brief at 52 (conceding that the Commonwealth’s testimony “may [have] establish[ed] Appellant’s ownership of or control or access to these accounts”). Turning to authorship of the posts, the Commonwealth obtained, through its warrant and Facebook’s authentication process, documents from Facebook establishing timestamps for each exhibit. For example, the post showing Appellant standing in front of the intersection of Poplar and West 17th Street was uploaded by the “Dupree Clark” account on August 29, 2020, one day before the shooting at that location. Appellant’s middle name is Dupree, and that fact, in conjunction with the timing of the post, circumstantially supports that Appellant authored it. The accompanying text essentially bragged that Appellant did not fear whoever was “looking for” him, and the prominence of the street signs in the picture suggest that Appellant is telling whoever reads the post where he may be found. The very next day a vehicle belonging to Savannah Lopez, ____________________________________________

4If the accounts did not belong to Appellant, it would raise questions of whether Appellant had standing to challenge the warrant.

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the mother of his child, was struck by gunfire at that location. As another example, the post showing the man in the sweatshirt with the picture on its back was posted on November 23, 2019, which included a comment from a friend wishing Appellant a happy birthday. Appellant’s date of birth is November 22. That other members of the public treated the account as belonging to Appellant also supports a conclusion that Appellant controlled and authored the posts introduced at trial. Therefore, even if not waived, we would conclude that the Commonwealth presented sufficient evidence to authenticate the material.

Clark, No. 552 WDA 2022 at *14-15.

We acknowledge that the records showing the Facebook accounts were

registered by email addresses that also appeared on Appellant’s phone was

strong evidence and of a different character than the circumstantial evidence

discussed supra. However, we find that the introduction of this evidence was

harmless beyond a reasonable doubt. The key question in this case was

simply whether the man depicted in the surveillance videos was Appellant.

Whether (and when) Appellant personally posted the photographs is of little

moment; the critical question is simply whether the picture depicted

Appellant. The jury had the advantage of seeing Appellant firsthand during

trial and could compare his appearance to the photographs, as well as those

photographs to the surveillance video. Because the Commonwealth lawfully

obtained the photographs showing a man wearing purple shoes, the jury was

free to determine as a matter of fact whether the photographs depicted

Appellant. If the jury concluded that the photographs were not Appellant,

then the material did not prejudice him in any way. We therefore conclude

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that any prejudice from introducing the Facebook authentication material was

de minimis.

Judgment of sentence affirmed.

Judge Pellegrini did not participate.

FILED: 2/13/2024

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