Com. v. Ellis, K.

• Court: Superior Court of Pennsylvania
• Decided: August 11, 2020
• Docket: 1577 WDA 2019
• Status: Unpublished

Opinion

J-S30011-20 & J-S30012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KASHIF OMAR ELLIS : : Appellant : No. 1577 WDA 2019

Appeal from the Judgment of Sentence Entered April 16, 2019 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0001880-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KASHIF ELLIS : : Appellant : No. 1580 WDA 2019

Appeal from the Judgment of Sentence Entered April 16, 2019 In the Court of Common Pleas of Blair County Criminal Division at No(s): CP-07-CR-0000773-2018

BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY MURRAY, J.: FILED AUGUST 11, 2020

In these consolidated appeals, Kashif Omar Ellis (Appellant) appeals

from the judgment of sentence imposed after a jury convicted him of first-

degree murder, robbery, criminal conspiracy, aggravated assault, burglary,

____________________________________________

* Former Justice specially assigned to the Superior Court. J-S30011-20 & J-S30012-20

criminal trespass, recklessly endangering another person, discharging a

firearm into an occupied structure, criminal use of a communication facility,

and possession with intent to deliver a controlled substance (collectively, “the

murder charges”).1 The jury also convicted Appellant, in a separate case, of

intimidation of a witness/victim, and retaliation against a witness/victim2

(collectively, “the intimidation charges”). We affirm.

On July 13, 2013, Appellant orchestrated a robbery with his then-

paramour and co-defendant, Taylor Griffith (Griffith), and Quasim Green

(Green). At Appellant’s direction, Griffith visited the residence of the victim,

Stephen Lamont Hackney (Decedent). While inside the residence, Griffith

texted Appellant, informing him that she saw large quantities of narcotics and

U.S. currency, and that the Decedent was alone and unarmed. Griffith, who

was a Commonwealth witness at trial, testified that she unlocked the back

door to the Decedent’s residence so that Appellant and Green could enter.

Appellant barged into the Decedent’s bedroom and shot him three times,

resulting in his death. Appellant and his co-defendants then stole the cash

and narcotics and fled.

1 18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 903(a), 2702(a)(1) and (4), 3502(a)(1), 3503(a)(1)(i), 2705, 2707.1(a), 7512(a); 35 P.S. § 780- 113(a)(30).

2 18 Pa.C.S.A. §§ 4952(a)(1), 4953(a).

-2- J-S30011-20 & J-S30012-20

The police responded to the scene and discovered the Decedent’s body,

as well as large quantities of cash nearby. After securing and searching the

surrounding area, police seized a Samsung cellphone (Samsung phone), which

had been discarded in the alley behind the Decedent’s residence. The police

obtained a search warrant for the digital contents of the Samsung phone.

Forensic analysis of the Samsung phone revealed that it belonged to Green.

The investigation into the murder went on for several years. During the

investigation, the police utilized a software geo-location mapping program

called CellHawk.3 The investigating officers accessed CellHawk geo-location

data for two separate cell phones that, police determined, were respectively

associated with Appellant and Griffith. The data showed these phones in the

general area of the Decedent’s residence on the night of the murder. It further

showed that both Appellant and Griffith’s phones were in the Philadelphia area

shortly after the murder, which corroborated Griffith’s account. The police

obtained the CellHawk evidence, with respect to both Appellant and Griffith’s

phones, via a court order.

Notably, one of the police officers involved in the investigation was

former Altoona police detective Matthew Starr (Officer Starr). After most of

3 This program collects historical data from cellular tower “pings” to locate cellphone users on a given date and time.

-3- J-S30011-20 & J-S30012-20

the investigation had occurred, Officer Starr was terminated from the police

force and convicted of fraud in an unrelated matter.4

In July 2017, the Commonwealth filed the murder charges against

Appellant at CR 1880-2017 (No. 1880-2017). The Commonwealth

subsequently initiated a second case against Appellant in May 2018, docketed

at CR 773-2018 (No. 773-2018), charging him with the intimidation charges.5

The trial court joined the two cases.

Appellant subsequently filed an omnibus pre-trial motion (OPT motion).

The OPT motion sought, inter alia, suppression of (1) Appellant’s CellHawk

historical cell site location information; and (2) recordings of inculpatory

telephone calls and letters that Appellant made while incarcerated pending

trial (“the prison calls evidence.”). The trial court conducted two hearings,

after which it denied the OPT motion.

In November 2018, Appellant filed a motion (the recusal motion),

asserting that the entire bench of Blair County, as well as the District

Attorney’s Office, should be disqualified from participating in his trial. He

argued that there was a conflict of interest because Griffith was the daughter

4 Neither party called Officer Starr as a witness at Appellant’s trial.

5 These charges arose out of Appellant’s threatening to kill Griffith because she agreed to testify as a Commonwealth witness against Appellant in exchange for pleading guilty to third-degree murder, and receiving a sentence of 15 to 30 years in prison.

-4- J-S30011-20 & J-S30012-20

of the Blair County Prothonotary/Clerk of Courts, Robin Patton (Prothonotary

Patton). The trial court denied the recusal motion.

On January 3, 2019, four days prior to jury selection, Appellant filed a

motion for a continuance, which the trial court denied. Jury selection

commenced on January 7, 2019. Appellant was shackled during jury selection

and trial. For this reason, Appellant filed a motion for a mistrial, which the

trial court denied. The jury convicted Appellant of the murder charges and

the intimidation charges.

On April 16, 2019, the trial court sentenced Appellant, at No. 1880-

2017, to life in prison without the possibility of parole. At No. 773-2018, the

court imposed an aggregate sentence of 5 to 10 years in prison, to run

consecutively to the sentence at No. 1880-2017.

On April 26, 2019, Appellant filed a timely post-sentence motion for

reconsideration of sentence/new trial. He challenged the trial court’s denial

of his claims raised in the OPT motion and recusal motion. He further asserted

that he should not have been shackled during jury selection, and that the

Commonwealth committed a discovery violation by failing to provide the

defense with certain witness statements prior to trial. The trial court denied

the post-sentence motion by an order and opinion entered on December 2,

2019.

Appellant timely filed notices of appeal at each docket number, followed

by court-ordered concise statements of errors complained of on appeal,

-5- J-S30011-20 & J-S30012-20

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). This Court

consolidated the appeals sua sponte.

In the appeal at No. 1880-2017, Appellant presents nine issues for

review:

I. WAS [APPELLANT] DENIED HIS RIGHT TO DUE PROCESS AND A FAIR AND IMPARTIAL TRIAL WHEN HE WAS PARADED IN FRONT OF THE JURY AT JURY SELECTION IN SHACKLES?

II. WAS [APPELLANT] DENIED DUE PROCESS AND A RIGHT TO A FAIR AND IMPARTIAL TRIAL WHEN THE TRIAL COURT REFUSED TO SUPPRESS THE INTERCEPTION OF [APPELLANT’S] PHONE RECORDS AND WRITTEN COMMUNICATIONS OBTAINED FROM THE STATE CORRECTIONAL INSTITUTIONS OF GRATERFORD AND HUNTINGDON WITHOUT A WARRANT?

III. DID THE COMMONWEALTH COMMIT BRADY[6] VIOLATIONS IN FAILING TO TIMELY DISCLOSE THE STATEMENT OF ASHLEY BRUBAKER AND TO TIMELY REVEAL THE COMMONWEALTH’S KNOWLEDGE OF THE UNTRUTHFULNESS OF THE STATEMENT OF POTENTIAL COMMONWEALTH WITNESS KELSEY BERGMAN?

IV. DID THE COMMONWEALTH VIOLATE THE RULES OF DISCOVERY BY FAILING TO PROVIDE TIMELY NOTICE OF THE TESTIMONY OF ASHLEY BRUBAKER AND THE UNTRUTHFULNESS OF THE STATEMENT OF POTENTIAL COMMONWEALTH WITNESS KELSEY BERGMAN[,] ALONG WITH FAILING TO PROVIDE NOTICE OF THE EXPERT TESTIMONY OF AGENT THOMAS MOORE OF THE ATTORNEY GENERAL’S OFFICE[,] ALL OF WHICH INFORMATION SHOULD HAVE BEEN REVEALED IN DISCOVERY[?]

6 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).

-6- J-S30011-20 & J-S30012-20

V. DID THE COURT VIOLATE [APPELLANT’S] RIGHT UNDER THE CONFRONTATION CLAUSE OF BOTH THE UNITED STATES CONSTITUTION AND THE PENNSYLVANIA CONSTITUTION TO CROSS-EXAMINE TRAVIS DENNY[,] WITH RESPECT TO A LETTER SUBMITTED TO HIS ATTORNEY BY HIS GIRLFRIEND SEEKING A REDUCTION IN THE SENTENCE HE WAS SERVING?

VI. DID THE TRIAL COURT ERR IN DENYING A HEARING ON [APPELLANT’S] FRANKS[ V. DELAWARE, 438 U.S. 154 (1978)] MOTION WITH RESPECT TO THE SEARCH WARRANTS BASED UPON THE STATEMENTS AND INFORMATION PROVIDED BY AN UNRELIABLE WITNESS[,] AS WELL AS THE ACTIONS AND ACTIVITY FROM [OFFICER] STARR WHO WAS SUBSEQUENTLY CONVICTED AND SENTENCED ON CHARGES INVOLVING FRAUD?

VII. DID THE COURT DENY [APPELLANT’S] RIGHT TO A FAIR AND IMPARTIAL TRIAL BY REFUSING TO RECUSE ITSELF AND/OR RECUSE THE DISTRICT ATTORNEY OF BLAIR COUNTY WHEN HIS CO-DEFENDANT, TAYLOR GRIFFITH[,] AND MAIN COMMONWEALTH WITNESS WAS THE DAUGHTER OF THE PROTHONOTARY AND CLERK OF COURT OF BLAIR COUNTY?

VIII. WAS [APPELLANT] IMPROPERLY DENIED HIS REQUEST FOR A CONTINUANCE FILED WITH THE COURT ON JANUARY 3, 2019 AND DENIED BY ORDER OF COURT DATED JANUARY 4, 2019 FILED ON JANUARY 7, 2019[?]

IX. WAS [APPELLANT] DENIED HIS RIGHT TO DUE PROCESS AND A FAIR AND IMPARTIAL TRIAL WHEN THE COMMONWEALTH OBTAINED EVIDENCE AS TO PINGING [O]F … [APPELLANT’S] CELL PHONE THROUGH A COURT ORDER INSTEAD OF PROPERLY OBTAINING A WARRANT FOR SAID EVIDENCE AS REQUIRED BY CARPENTER V. UNITED STATES, 585 U.S. ___, 138 [S. CT.] 2206, 201 LAWYERS EDITION 2D. 507[] (2018)[?]

Appellant’s Brief (1577 WDA 2019) at 6-9 (footnote added, issues ordered).

-7- J-S30011-20 & J-S30012-20

In the appeal at No. 773-2018, Appellant raises three issues. These

issues are identical to and correspond with three of the issues that Appellant

presents above; namely, issues 1, 7 and 8.7 See Appellant’s Brief (1580 WDA

2019) at 6. Accordingly, we will address those issues together.

In his first issue, Appellant argues that he was deprived of his right to a

fair trial, and his presumption of innocence, where he was “paraded” in front

of the jury while restrained with shackles. Appellant’s Brief at 19-24.

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

mistrial. Id. at 19.

It is well settled under common law and the Constitution that, part and parcel of the concept of a fair trial, is a defendant’s right to be permitted to appear free from shackles or other physical restraint – this right, however, is not absolute. Commonwealth v. Jasper, 610 A.2d 949, 955 (Pa. 1992). Circumstances that have justified the use of restraint include where a defendant disrupts the proceedings, where there is a danger of escape, and where the court believes that an unrestrained defendant may attack others. Id. Proper security measures are within the sound discretion of the trial court, and, thus, will not be disturbed absent an abuse of that discretion. Commonwealth v. Patterson, 308 A.2d 90, 94 (Pa. 1973).

In the Interest of F.C. III, 2 A.3d 1201, 1222 (Pa. 2010) (citations

modified). Additionally, “where the trial evidence shows that a violent

defendant was incarcerated at the time of trial, no prejudice occurs even when

restraints are visible to the jury.” Jasper, 610 A.2d at 955.

7 Citations to Appellant’s arguments for these issues reference Appellant’s Brief at 1577 WDA 2019.

-8- J-S30011-20 & J-S30012-20

The trial court rejected this issue on the basis that:

(1) Appellant failed to establish that the jury actually saw him in restraints at any point;

(2) Even if the restraints were visible, the jury already knew that Appellant was incarcerated by other information, and thus, he suffered no prejudice; and

(3) In light of Appellant’s numerous misconducts in pre-trial incarceration, his threatening to kill a Commonwealth witness, and his unruly courtroom behavior, it was necessary to place him in restraints to ensure safety and courtroom order.8

See Opinion and Order, 9/20/19, at 20-22. Upon review, we incorporate

further the trial court’s reasoning, which is supported by the law and the

record. See id. In so doing, we note that during pre-trial proceedings, the

trial court expressly warned Appellant that his threatening and unruly conduct

could result in him being restrained during trial. See N.T., 3/23/18, at 7;

N.T., 7/30/18, at 35-36. In addition, during jury selection, Appellant was

dressed in civilian clothing, his right hand was free, and the defense table was

equipped with a “skirt”, which blocked the jury from seeing anything below

Appellant’s waist. N.T., 1/7/19, at 20. Finally, the court stated that it would

have been willing to issue a curative instruction to the jury concerning

restraints and/or Appellant’s incarceration, but defense counsel did not

8 While Appellant was incarcerated in the Blair County Prison awaiting trial, he threatened to harm Griffith and prison personnel. In pre-trial proceedings, the trial court warned Appellant that if he continued this conduct, the court would have no choice but to shackle him in further court proceedings.

-9- J-S30011-20 & J-S30012-20

request an instruction. See id. at 10-15. We therefore find no merit to

Appellant’s first issue.

In his second issue, Appellant argues that the trial court erred by

depriving him of a fair trial when it refused to suppress the prison calls

evidence; Appellant claims the evidence was the product of an unlawful search

and seizure. See Appellant’s Brief at 27-31.

The trial court likewise addressed this claim in its opinion, summarizing

the relevant law concerning the admissibility of such evidence, and

determining that denial of the suppression request was proper because:

(1) The court initially denied Appellant’s motion to suppress the evidence “without prejudice” to Appellant to renew and further develop the claim, but he never did so;

(2) Appellant never objected to the admission of this evidence at trial; indeed, he actually consented to the entire recording of Appellant’s calls from prison being played to the jury; and

(3) Appellant failed to articulate any reasonable expectation of privacy that he had concerning these communications.

See Opinion and Order, 9/20/19, at 16-19. Again, the court’s reasoning is

supported by the record and law, and we agree with its conclusion. We further

note that the Commonwealth’s interception of Appellant’s prison phone calls

was permitted under Pennsylvania’s Wiretap Act, which provides in relevant

part that it is not unlawful for:

an investigative officer, a law enforcement officer or employees of the Department of Corrections for State correctional facilities to intercept, record, monitor or divulge any telephone calls from or to an inmate in a facility [provided that delineated conditions are met].

- 10 - J-S30011-20 & J-S30012-20

18 Pa.C.S.A. § 5704(13). Appellant, as a state inmate, was given an

automated warning that any inmate telephone call could be monitored or

recorded. Accordingly, we reject Appellant’s second issue. See id.

We address Appellant’s third and fourth issues together because they

are related. Appellant claims the Commonwealth violated Brady, supra, by

failing to alert him to material untruths in the police statement given by

“proposed” Commonwealth witness Kelsey Bergman (Bergman), and to give

him advance notice of her testimony.9 See Appellant’s Brief at 31-34; 37-38.

Appellant argues that this information would have assisted his defense theory

and provided him an opportunity to undermine the credibility of Griffith’s

testimony. Id. at 33-34. Appellant further contends that the Commonwealth

committed a second Brady violation concerning Ashley Brubaker (Brubaker),

who testified as a Commonwealth witness and spoke with police on the night

of the murder. Id. at 34, 37-38.

Appellant’s claim presents a question of law; our standard of review is

de novo and our scope of review is plenary. Commonwealth v. Mullins, 918

A.2d 82, 84 (Pa. 2007). To prove a Brady violation, a defendant must show:

“(1) the prosecutor has suppressed evidence; (2) the evidence, whether

exculpatory or impeaching, is helpful to the defendant; and (3) the

suppression prejudiced the defendant.” Commonwealth v. Tharp, 101 A.3d

9 Neither party called Bergman as a witness at trial.

- 11 - J-S30011-20 & J-S30012-20

736, 747 (Pa. 2014) (citation omitted). “Conversely, the mere possibility that

an item of undisclosed information might have helped the defense, or might

have affected the outcome of the trial does not establish materiality in the

constitutional sense.” Commonwealth v. Dennis, 17 A.3d 297, 308 (Pa.

2011) (citation omitted). The burden of proof is on the defendant to

demonstrate that the Commonwealth withheld or suppressed material

evidence. Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009); see

also id. (stating that the “prosecutor is not required to deliver his entire file

to defense counsel, but only to disclose evidence favorable to the accused

that, if suppressed, would deprive the defendant of a fair trial”) (citation

omitted).

Appellant’s claims are unavailing. Concerning Bergman, the

Commonwealth never called her to testify. Appellant had an opportunity to

present her testimony; however, he declined to do so. Moreover, Appellant

fails to identify Bergman’s alleged “untruths,” and advances only a general

claim of a Brady violation. See Commonwealth v. Tielsch, 934 A.2d 81,

93 (Pa. Super. 2007) (holding that undeveloped claims will not be considered

on appeal). Finally, the record supports the Commonwealth’s response that

it: (1) provided Appellant with Bergman’s police statement during discovery;

and (2) spoke with Appellant’s defense counsel prior to trial and pointed out

the discrepancies in Bergman’s statements. See Response to Post-Sentence

Motion, 8/27/19, at 10; see also id. at 11 (asserting that the inconsistencies

- 12 - J-S30011-20 & J-S30012-20

in Bergman’s statements had nothing to do with Appellant because she was

not present at the Decedent’s residence when the murder occurred).

Regarding Appellant’s second Brady claim implicating Brubaker,

Appellant raises this claim for the first time on appeal; accordingly, it is

waived. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the

first time on appeal); see also Commonwealth v. Melendez-Rodriguez,

856 A.2d 1278, 1288 (Pa. Super. 2004) (en banc) (“[a] party cannot rectify

the failure to preserve an issue by proffering it in response to a Rule 1925(b)

order.”) (citation omitted). Additionally, Appellant’s counsel did not object to

the introduction of Brubaker’s testimony or assert any unfair surprise, even

after an offer of proof by the prosecutor. See N.T., 1/29/19, at 138-39.10 We

discern no record support for Appellant’s claim that the Commonwealth

possessed materials documenting Brubaker’s statements that were not

provided in discovery.

Finally, in connection with Appellant’s fourth issue, he merely asserts,

in two sentences, that the Commonwealth committed a third Brady violation

by failing to provide the defense advance notice of the testimony of Agent

10 The record reflects that there was no formal police interview of Brubaker until the time of trial, on January 29, 2019, and defense counsel thoroughly cross-examined Brubaker about her statements. See N.T., 1/29/19, at 138- 39, 156-63.

- 13 - J-S30011-20 & J-S30012-20

Thomas Moore (Agent Moore) of the Attorney General’s Office.11 Appellant’s

Brief at 38. However, because Appellant has failed to develop this claim in

any meaningful fashion, we are precluded from considering it. See Tielsch,

supra; see also Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super.

2014) (stating that mere issue spotting without analysis or legal citation to

support an assertion precludes appellate review of a matter).12 Appellant’s

third and fourth issues do not merit relief.

In his fifth issue, Appellant asserts that the trial court committed

reversible error by precluding his counsel from cross-examining

Commonwealth witness Travis Denny (Denny), who was Appellant’s former

cellmate.13 See Appellant’s Brief at 38-41. Specifically, Appellant argues that

he was deprived of his right to confrontation concerning a certain letter that

Denny allegedly had “knowledge of”;14 the letter purportedly expressed

11The Commonwealth presented Agent Moore as an expert witness regarding the meaning of certain phrases Appellant used in telephone calls he placed while incarcerated.

12 Even if Appellant had properly developed this claim, we would have concluded that it lacks merit for the reasons set forth in the trial court’s opinion. See Opinion and Order, 12/2/19, at 19-20 (stating that Agent Moore’s expert testimony was not a surprise to the defense where the Commonwealth filed of record a document that outlined his testimony).

13Denny testified that he was incarcerated with Appellant in 2015, when Appellant confessed to him that he shot someone named Steve and stole his money.

14 Denny’s girlfriend authored this letter and mailed it to Denny’s attorney.

- 14 - J-S30011-20 & J-S30012-20

Denny’s request for a reduced sentence in exchange for his testimony at

Appellant’s trial. See id. at 38, 40.

The standard of review applicable to this question of law is de novo.

Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa. Super. 2017). The trial

court has once again capably addressed Appellant’s issue, citing applicable

law, and determining that Appellant was not deprived of his right to confront

Denny where:

(1) Appellant’s counsel, in fact, attacked Denny’s credibility and motive for testifying against Appellant;

(2) Denny did not author the letter; and

(3) The trial court did not bar Appellant from seeking to admit the letter via the testimony of its author.

See Opinion and Order, 9/20/19, at 23-25. The trial court’s reasoning is

supported by the record and law, and we agree with its determination; thus,

we affirm on this basis. See id.

In his sixth issue, Appellant contends that the trial court erred in denying

his request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154

(1978). Appellant argues that he should have been permitted to “explore the

issues which resulted in [Officer] Starr’s termination” and conviction, where

Officer Starr was the affiant of the affidavit of probable cause for the Samsung

cellphone belonging to co-defendant Green.15 Appellant’s Brief at 41-43.

15 Appellant joined in Green’s omnibus pre-trial motion for a Franks hearing.

- 15 - J-S30011-20 & J-S30012-20

The Pennsylvania Supreme Court summarized the United States

Supreme Court’s holding as follows:

[Franks] addressed whether a defendant has the right, under the Fourth and Fourteenth Amendments, to challenge the truthfulness of factual averments in an affidavit of probable cause. The Court held where the defendant makes a substantial preliminary showing the affiant knowingly and intentionally, or with reckless disregard for the truth, included a false statement in the affidavit, the Fourth Amendment requires a hearing be held at the defendant’s request. The Court emphasized the defendant’s attack on the affidavit must be “more than conclusory and must be supported by more than a mere desire to cross-examine”; the defendant must allege deliberate falsehood or reckless disregard for the truth, accompanied by an offer of proof. If the defendant meets these requirements, but the remainder of the affidavit’s content is still sufficient to establish probable cause, no hearing is required. If the affidavit’s remaining content is insufficient, a hearing is held, at which the defendant must establish, by a preponderance of the evidence, the allegation of perjury or reckless disregard. If he meets this burden, the affidavit’s false material is disregarded; if its remaining content is insufficient to establish probable cause, the search warrant is voided, and the fruits thereof are excluded.

Commonwealth v. James, 69 A.3d 180, 188 (Pa. 2013) (citations omitted).

Essentially, Appellant claims that because Officer Starr committed fraud

in an unrelated matter, he may have committed fraud in Appellant’s case.

This claim is unavailing. The Samsung phone belonged to Green, not

Appellant, and Appellant asserted no possessory interest in it. Appellant never

requested a Franks hearing relative to the probable cause affidavit.

Moreover, Appellant’s claim is undeveloped; he fails to reference any

statements in the affidavit he contends to be purportedly false. See James,

supra (emphasizing that a defendant’s Franks attack on an affidavit must be

- 16 - J-S30011-20 & J-S30012-20

more than conclusory, and that the defendant must put forth a “substantial”

preliminary showing that the affidavit contains falsehoods); Commonwealth

v. Iannaccio, 480 A.2d 966, 969 n.1 (Pa. 1984) (holding that bald,

conclusory statements are insufficient to rise to the level of a substantial

preliminary showing under Franks).

In his seventh issue, Appellant argues that the trial court erred in

denying his recusal motion. See Appellant’s Brief at 45-52. Appellant

contends that the family relationship between Griffith and Prothonotary Patton

created a conflict of interest implicating the Blair County District Attorney’s

Office and the entire bench of Blair County. See id. According to Appellant,

Patton, who was not a witness at Appellant’s trial, had a “vested interest” in

the outcome. Id.

We review a claim challenging the denial of a recusal motion for an

abuse of discretion, and our review is “exceptionally deferential.” In re L.V.,

209 A.3d 399, 415 (Pa. Super. 2019).

We recognize that our trial judges are honorable, fair and competent, and although we employ an abuse of discretion standard, we do so recognizing that the judge himself is best qualified to gauge his ability to preside impartially. A trial judge should grant the motion to recuse only if a doubt exists as to his or her ability to preside impartially or if impartiality can be reasonably questioned. In order to prevail on a motion for recusal, the party seeking recusal is required to produce evidence establishing bias, prejudice or unfairness which raises a substantial doubt as to the jurist’s ability to preside impartially.

Id. (citations omitted).

- 17 - J-S30011-20 & J-S30012-20

We also review the denial of a motion to disqualify a prosecutor for an

abuse of discretion. Commonwealth v. Sims, 799 A.2d 853, 856 (Pa. Super.

2002). A district attorney should be disqualified where “an actual conflict of

interest affecting the prosecutor exists in the case.” Commonwealth v.

Eskridge, 604 A.2d 700, 702 (Pa. 1992). However, a mere allegation or

appearance of impropriety or animosity is insufficient to establish an actual

conflict of interest. Sims, 799 A.2d at 857.

In support of his claim, Appellant primarily relies on two decisions,

Eskridge, supra, and Comm. Ex rel. Amor v. Amor, 398 A.2d 173 (Pa.

Super. 1979) (en banc). See Appellant’s Brief at 49-51. However, both cases

are readily distinguishable. See Eskridge, 604 A.2d at 701-02 (holding that

an actual conflict barring prosecution existed where the county district

attorney’s law firm represented a car accident victim in a personal injury

action previously instituted against the defendant, and the accident victim

would be a witness in the same defendant’s separate criminal case); Amor,

398 A.2d at 174 (holding that recusal of the entire county bench was required

where a woman who was remarried to a common pleas judge of that county

would have to appear before one of her husband’s judicial colleagues in a child

support action initiated by the woman’s ex-husband).

There is no legal authority for the proposition that when a biological

relative of a county row officer is called as a witness, the district attorney and

entire bench of that county must remove themselves from the case. See,

- 18 - J-S30011-20 & J-S30012-20

e.g., Commonwealth v. Lutes, 793 A.2d 949, 956-57 (Pa. Super. 2002)

(holding that the trial court did not err in denying a motion to disqualify the

district attorney’s office and no conflict of interest existed where the victim

was a county commissioner).

Furthermore, during jury selection, the trial court informed the jury of

the family relationship between Griffith and Prothonotary Patton. N.T.,

1/7/19, at 69-70. The court inquired as to whether this fact would have any

impact on their ability to be fair and impartial. Id. No juror responded that

it would, and Appellant’s counsel made no further inquiries. Id. The trial

court has also considered testimony from Blair County First Deputy

Prothonotary Vicky Claar about any conflict of interest. Ms. Claar stated that

steps were taken to insulate Prothonotary Patton from any involvement with

Appellant’s case and any issues related to Griffith, and averred that no conflict

of interest existed. See N.T., 8/7/18, at 27-34. Moreover, Appellant concedes

that he “is not challenging any personal impropriety on the part of the [trial]

court or the District Attorney’s Office”; Appellant’s Brief at 48. Upon review,

we discern no evidence to support a finding of bias, prejudice or unfairness.

See, e.g., Opinion and Order, 9/20/19, at 13 (explaining that the trial court

had no social and minimal professional contacts with Prothonotary Patton).

Finally, to the extent Appellant emphasizes the plea deal that the District

Attorney’s Office offered Griffith in exchange for her testimony at Appellant’s

trial, see Appellant’s Brief at 46-48, this is a routine occurrence and function

- 19 - J-S30011-20 & J-S30012-20

of the prosecution’s authority, and there is no evidence indicating that the

prosecution was partial. Accordingly, Appellant’s seventh issue does not merit

relief.

In his eighth issue, Appellant contends that the trial court abused its

discretion in denying his motion for a continuance filed four days prior to jury

selection. See Appellant’s Brief at 53-55. According to Appellant, his defense

counsel:

needed further investigation of various matters which was exemplified by what occurred at the trial with respect to the introduction of testimony of Ashley Brubaker, the purported false statements given by Kelsey Bergman[,] and the previous undisclosed testimony of the expert witness, Agent Thomas Moore.

Id. at 55.

We recognize:

Appellate review of a trial court’s continuance decision is deferential. The grant or denial of a motion for a continuance is within the sound discretion of the trial court and will be reversed only upon a showing of an abuse of discretion. … Discretion is abused when the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record.

Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa. 2014) (citation

modified). Trial judges “necessarily require a great deal of latitude in

scheduling trials. Not the least of their problems is that of assembling the

witnesses, lawyers, and jurors at the same place at the same time, and this

burden counsels against continuances except for compelling reasons.”

Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013) (citation

- 20 - J-S30011-20 & J-S30012-20

omitted); see also Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa.

Super. 2014) (stating that an appellant “must be able to show specifically in

what manner he was unable to prepare for his defense or how he would have

prepared differently had he been given more time. We will not reverse a

denial of a motion for continuance in the absence of prejudice.”). To

determine whether a trial court erred in denying a continuance request, “we

must examine the circumstances present in the case, especially the reasons

presented to the trial court for requesting the continuance.” Sandusky, 77

A.3d at 672.

The case against Appellant was initiated in July 2017. Appellant filed

the motion for continuance approximately 1½ years later, and just four days

prior to jury selection on January 7, 2019. The record shows that the trial

court had: (1) considered numerous pre-trial motions filed by Appellant; (2)

previously granted several other continuances requested by Appellant; (3)

ensured that discovery was completed; and (4) appointed an expert witness

and an investigator to assist Appellant’s defense. Additionally, trial had

previously been delayed after Appellant fired his first counsel and chose to

proceed pro se, but eventually had new counsel appointed to represent him.

Further, Appellant’s defense counsel was informed in October 2018 that

the case would proceed to trial in late January 2019. See N.T., 10/9/18, at

43-44. Notably, on November 27, 2018, the following exchange occurred

between the trial court and defense counsel:

- 21 - J-S30011-20 & J-S30012-20

BY THE COURT: … I can resolve [any outstanding matters] for this matter to go to trial January 28th[, 2019]. It is two full months. …

[Defense counsel]: I am okay with January 28th.

N.T., 11/27/18, at 113 (emphasis added).

The record supports the trial court’s statement that there “was no

presentation to the court, nor did it appear to the court prior to trial, that

counsel for [Appellant] felt he was unprepared for trial.” Opinion and Order,

9/20/19, at 34. Finally, we discern no record support for Appellant’s claim

that he was prejudiced by the court’s refusal to afford him yet another

continuance, especially one requested so close to trial. See, e.g., Antidormi,

84 A.3d at 746 (holding that the trial court properly denied the defendant’s

fifth request for a continuance, made on the first day of trial, which was based

upon nothing more than a bald allegation by defense counsel of insufficient

time to prepare). Accordingly, the trial court acted within its discretion in

denying Appellant’s request for a continuance.

In his ninth and final issue, Appellant contends that the trial court

deprived him of a fair trial by permitting the Commonwealth to introduce the

CellHawk historical cell site location information (CSLI) for his phone without

first obtaining a search warrant pursuant to Carpenter, 138 S. Ct. 2206. See

Appellant’s Brief at 25-26. The United States Supreme Court held that, absent

a specific exception to the warrant requirement, law enforcement must first

- 22 - J-S30011-20 & J-S30012-20

obtain a search warrant supported by probable cause in order to obtain CSLI

from wireless service providers. Carpenter, 138 S. Ct. at 2221.

In reviewing Appellant’s claim:

our standard of review in addressing a challenge to a trial court’s denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct. We are bound by the suppression court’s factual findings so long as they are supported by the record; our standard of review on questions of law is de novo. Where, as here, the defendant is appealing the ruling of the suppression court, we may consider only the evidence of the Commonwealth and so much of the evidence for the defense as remains uncontradicted.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations

The trial court concluded that Appellant waived this issue because he

failed to timely raise a claim implicating Carpenter prior to his post-sentence

motion. See Opinion and Order, 9/20/19, at 25-32; see also id. at 32-33

(opining that even if the claim was preserved, it lacks merit because any error

in admitting the CSLI evidence was harmless given the totality of the other

overwhelming evidence of Appellant’s guilt). We agree, as the rationale is

again supported by the record and law. Therefore, we affirm Appellant’s final

issue on this basis. See id. at 25-33.

Judgment of sentence affirmed.

- 23 - J-S30011-20 & J-S30012-20

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/11/2020

- 24 - Circulated 07/16/2020 02:12 PM

IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA,

1880 CR 2017 v. 0773 CR 2018

N KASHIF OMAR ELLIS, c:> DEFENDANT, : - .. ELIZABETH A. DOYLE PRESIDING JUDGE

PETER WEEKS, ESQ. COUNSEL FOR COMMONWEALTH NICHOLE SMITH, ESQ.

R. THOMAS FORR, JR. COUNSEL FOR DEFENDA�T

' I�

Opinion and Order DEC 2 2019 ·l hj I Introduction Pn ' d!L "' And now, this day of September, 2019, before the court are the Post- �

Sentence Motions filed by the Defendant, Kashif Omar Ellis, ("Ellis") on April 26, 2019.

On July 31, 2019, the court granted an extension to decide the post-sentence motions.

Memoranda were received from the parties, and the matter is ripe for decision.

Applicable Law

The court will briefly address the applicable law governing post-sentence motions

prior to listing Eiiis's specific issues. Post sentence motions are governed by

Pennsylvania Rule of Criminal Procedure 720 (B) (1), which provides:

(B) Optional Post-Sentence Motion.

(1) Generally.

(a) The defendant in a court case shall have the right to make a post- sentence motion. All requests for relief from the trial court shall be stated

s with.specificity and particularity, arid shall be.cortsolidated in the post- sentence rr1otion,which may include:

(i) a motion -ch�llenging the validity of a plea· of ,guilty or nolo contendere, o.r the denial of a motion to withdraw a plea of g·u_ilty or nolo contend ere; (ii) a motion-for judgment of acquittal; (iii) a motion in arrest of juclgrnent; {iv) a motion tor a new trial; and/or (v) a motion tq modify sentence.

Pa. R Crim; P. 720 (B} (1}

Pa. R. Crim .. P. 720 also states that issues raised before or during trial shall. be

deemed preserved for appeal whether or not the defendant elects to. file a post .sentence

motion on those issues. Pa: R. Crim. P. 720 (B) (1) (c), Accordingly, a waiver argument

.appropriate for appeal need not necessarily be raised before thecourt or decided by the.

court on the post-sentence rnonons: but since the Commonweaith has alieged waiver as

part of its argument; thecourt will address whether issues raised. by the defendant in his

post sentence motions were.raised before or during trial.

Substance of Post..Sentence Motions

Ellis'-s Post-Sentence Motion is entitled broadly In two sections, "Motion for

Reconsideration and Modification of sentence" and "Motion for Reconsideration of

Sentence, Arrest of.Judgment and a New Trial.1i DEFENDANT'S. POST.SENTENCE. MOTION,

4/26/19, p. 1 (unpaginated), The.first.sectlon, entitled "Motion for Reconsideration and

Modificatkm ofSentence/·{Motion I), contains five ('5) subparagraphs that generc:1.lly recite

the procedural history of the case. lo. The second. section .entitled. "Motion for

Reconsideration of sentence, Arrest ofJudgment and a New Trial" {Motion 11), is divided

into eleven (11) lettered subparaqraohs. ID;, pp. t..3. Addressrng Motion a first, ten of

2 these.subparaqraphs contain substantive requests for relief. Ellis does not specify what 1

relief in each of-these numbered paragraphs. he is requesting (i":e. a new trial, the arrest

of the jury's judgment, ·and/or a reconsideration of his sentence). Moreover, none of the.

allegations of error concern Eiiis's sentence. The majority of _the$e motions describe

alleged errors made by the, court pre:.trial, ratherthan allegations of error during the trial. None of the issues raised involve. questions of weight and/or sufficiency of the evidence

presented bythe --Commonwealth at trial. Normally, in a pQst sentence motion the

allegation would bethat theJury rendered the verdict butJhat as.a matter a,f law the

evidenc.e. was not .sufflclent, or sufficient but clearly a·gainst the weight or

incredible such that the court should .set aside. the jury's verdict� Most of Eiiis's

motions begin with art tndlcatlon that Ellis ''was denied. a fair trial." S.uoh ·an averment is

indicative of a motion for a new triai, not a motion in arrest of]udQmenL As. mentioned,

none of the motions indicate tile court should reconsider or rnodity Ellis's sentence,

despite being -stYl.ed in partas a "Motion for RecOnsic-;leratioh otsentence. ,. "As a result,

it is difficult for the court to address Eiiis's claims usihg the proper . �gal . 'standard, . . or to

give him relief.

The specific. issues raised by Ellis in htsPcst-Sentence Motion are as follows:

a. Your Petitioner believes and therefore avers that he· was .denied a fair trial by the.jury of his peers in that the Blair County Court and the DistrictAttorney's Office should have reoused itself because of the appearance Of impropriety in that the Oommonwealth's chiefwitness �gainstlhe Defendant in this matter was Taylor Griffith, the.dauqhter :of Robin. G. Patton, the Prothonotary and Clerk .of Courts of Blair County for the reasons 'Set forth in your Petltioners (sic) Pre-Trial Motion with the hearing held on November 27, 2018.

b. That your Petitioner believes and therefore .avers tlie .Court erred in denyfng his Franks motion in that the warrants issued to obtain 1 Subparagraph k tsa request for transcripts,

3 evktence· of .the electronic surveillance in this matter were obtained ln violation of. [Franks v. Delaware] in that the affidavit was obtained using, ·knowing or with reckless disregard to the truth of the statements· or information provided by. unreliable Wfu.'iesses . and based upon the actions and the activity of the officer who scuqhttne warrant namely Sergeant Matthe.w Starr, an Attocna · Police Oepartrr,eiit. detective who was subsequently convicted and sentenced on charges involving fraud.

c. TheDefenoant was denied the right to a fair and impartial trial where. lhe 'Commonwealth failed to advise petitloner/defendant that the Cornrnonwealth had knowledge of the untruthfulness of· the purported statement of potential Commonwealth wtth.$ss, Kelsi Bergrh_arin., until the time of trial in violation of Bradyv. Maryland ..

d. The Defendant was denied the right to a. fair and impartial trial where ·this honorable court refused to suppress or limit the interceptions of his phone records and written communications ·obtained- from the s·tate.Corre.ctional Institution at Graterford and the .State=Correciional Institution cjl Huntingdon which the Commonwealth used .to present in essence, a confession given by the Defendant d_uring. the Commonwealth's closing argurrientto thejury.

e. a The �fendant was denied the right to .fair and lmpartial trial where the Commonwealth failed to. provide the Petitioner/Defendant with discovery of all the expert reports, spe,cifi¢ally where the Commonwealth called a witness from the Pennsylvania Office of Attorney General to explaincertain language and words purportedly used bythe Defendant withput the Commonwealth _providing said intormatlor. through discovery before commencement of theJurytrial.

The court erred when it denied the Defendant's. requestfor a mistrial whe�� the jury pool was able to observe the O:efendanf in shackles with respect to this. hands and feet lmrnediately before and during jury selection.

.g. Th_e. Defendantwas denied the right to a fair and impartial trial where ttie Commonwealth failed to provide the statements of Commonwealth witness, Ashley Brubaker, prior to the tri�I so as to permit the Defendant to. investigate said .staternents.

h. The Defendant was denied the right to a fair and ·impartial. trial When the :Defendant was denied his rights under the oonrrcntatton Clause of both the United States Constitution and Pennsylvania Oonstituflon

..... ·······-·····- --------- to- cress-examine a Commonwealth. witness, Travis De.nny, with a letter which would have been used for impeachment purposes.

i. The __D_efendantW.as denied the right to a fair and itnpart,al_trial where the Commonwealth obtained evidence as to pingin_g of the Defendant's cell phone through a court .order insteac qf properly obtai.ni.ng a warrant for said -evidence as required ·by Carp.enter v U.S .. [citation omitted]. .

j. The Defendant was denied the rightto a fair and trnpartial .trial Where the· tri.�! court imprpperly denied a continuance request by the Defend.ant for the purpose -of further reviewin_g and in.vestigating discovery provided by the Commonwealth to more properly craft a defense to· each of the charges at the above-captioned criminal action numbers. lo., pp. 1-3. (some words and phrases omitted). Prior to add res.sing each of these. issues,

the Court shall briefly discuss the procedural history ofthis case «,

PROCEDURAL.HISTORY

On Februaryt, 2019, Ellis was convicted of Criminai Homicide- of the First-Degree

and all othercharges filed. to case number CP-07-CR-0001880-20.17-. after a five(�) day

jury-frial. On the same day, Ellis was convicted of Retaliation Aga.inst··a Witness and all

other chargesJiled lo case number CP-07.:CR-OQ00773-201.8. On April, 16, 2019, the

court sentenced Eilis to life in prison without the possibility of parole followed by twenty-

three (23.5) to forty-seven (47) years of incarceration. On April ·26,.201_9, Ellls filed Post--

Sentence Motions .. On _July 311 2019., the court. granted Ellis;s requestto extend the time

for deciding the motions.. On September 5., 2.019. the-court entertained argument on the

motions. Ellis was not.present atthis proceeding because he. refused to. be. transported

from the State·. Correctional Institution. The court shall now hnefly recount the factual

background of this case.

··········-·-···········---------- ·-------------------- FACTUAL .BACKGROUND

Ellis was convicted. of; inter alia, first degree homicide for ·shooting and killing

Stephen LaMorit Hackneyr'Hackney") in the early morning hoursof Jul.{13, 2013. The

murder occurred in the. course of a robbery/home invasion at ·1·24. Walnut Street in the

City of Altoona, Pennsylvania ("the apartment"), Thetrial testimony .revealed that Ellis's

co-defendants in thi$ armed robbery-turned- homicide were Taylor Gtiffith fGriffith") and

Qasim Green t'Green'). The. homicide remained unsolved for .epproxlmately four (4)

years. One of the Commonwealth's key witnesses was Griffith, ·who ·testified that she

assisted in whats he indicated she assumed was going to be only a robbery 9f Hackney,

She testified that she witnessed Ellis burst through Hackney's bedroom door and fire

three rounds from a semiautomatic pistol at Hackney, who collapsed to the floor. One

shot penetrated the outer wan and went into the house next door, Griffith also testified that upon Hackney co11a-psing to the floor, bleeding, Ellis turnedthe gun on her arid stated,

"run . ,.. bitch." . . .

Another cornerstone of the Oornrnonwealth's case was testimony from Travis

Denny, an individual.who testified that he was cellmates with EJlis at SCI Huntingdon. He

.testified that he and. Ellls we.re watching the television show "The First 481', when Ellis told

him that he shotsomebody three times and never got caught Ellis tolo Denny that the

person he shot was narnec Steve, Ellis further told Denny he. shotSteve Jor money, and

that he ran outthe backdcor of the house and dropped money as he ran. He testified that he met Stevethrouqh his.girlfriend Taylor. The testimony.and exhibits attrial revealed

that Stephen Hackney was shot, three shots were flred, and moneywas found on the

6 stairs and the, floor of the house where Hackney was killed, and that the defendant's

girlfriend was Taylor -Griffith.

Griffith is the daughter of the Blair County Prothonotary/C1e� of Courts, Robih

Patton. Atiury selection the court disclosed. this relationship, and asked the prospective

jurors whether U. would have any impact on their ability to be- fair and impartial jurors in

the case. There· was no response from the prospective jurors· to the court's question, and

no further inquiries made by defense counsel.

As noted previously, Hackney was killed July 1� •. 2013, One of the early

investigators in the case- was former Altoona police detective Matthew Starr, Who. after

the bulk of theinvestiqafiertwas .convicted offraud on an unrelated matter. EUis at no time

called or attempted-to call. former Detective Starr to the witness.stand before trial to raise

an issue relative to. Franks. v, Delaware, 438. U.S. 154 (1976).

Ellis made a number of phone calls from prison, which-were recorded and used . . . �gainst him at trial by the Commonwealth. Before trial Ellis requested that these be

suppressed orllmlted. Thecourt denied this motion inan order filed of record October26,

.2018; wlthoutprejudice to Ellis. The record reflects that Enis never renewed this arqumen]

or supplanted it ·with the· court. Further, during the fourth. day of trial, when the

.ComrnonwealJh-soughtt.o·:Ph='Y portions of therecorded telephone calls between Ellis and

Griffith and. Ellis and a Jarell .Smith, counsel for Ellis requested that the .entire telephone

call, including the portionofthe call that indica.ted thatitwas made from prison, be played for the jury. That call indicated a discussion abouta cell phone drt>ppe.d b.y Green. When

told that the police had found the phone and thatthey believ_ed it would lead them to the killer, Ellis said, "tt'soverfor me; dog-I know he's going to.breatne."

7 Commonwealth Atty. Gen. Agent Thomas Moore ·was called by the

Commonwealth ·to· -aid the. Jury in understanding the vernacular .in which the defendant

and. ccidefendants .spoke arid the slang they used in their communication.. He explained

that 'breathe" meant to tes:tify against someone. The Cornmonwealth provided written

notice ofAgent.Moore'.s testimony on April 18, 2018. Attrial, after the commonwealth

conducted an examination regarding agent Moore's expert qualifications and moved for

the court to recoqnize him as an expert, counsel for Ellis. was. g:iven. an opportunity to

cross-examine .the witness. Ccunsel accepted the witness as an expert.

EIHs'.s. conduct prior to ttial included mlsconduct at the Blair County prison, and

threats again$t"pris.onpersonnel and codefendant Griffith. His .attitude before the court in

pretrial proceedinqs led the .court to specifically warn h_im that his conduct would

determine whether he was shackled for Qr presentat various court proceedings. Because

of his actions; he was .shackled during jury selection and at trial, The record of jury

selection does· not demonstrate that the jurors viewed restraints- on Ellis at jury selection.

It is not contested that restraints were invisible during the. trial.

Part of the Commonwealth's case included evidence: illustrated _oy the Cell Hawk

technology . that showed cellular . telephone towers receiving pings ailegedly from cell

phones identified:as bein9 .associated with a familymember of Ellis-and· associated with

Griffith, and which corroborated Griffith's account that after the: murder she and Ellis fled

to Philadelphia_. The Ce!I Hawk technology was challenged by both· Green and by Ellis

as being scientifically unreliable and was the subject of.extertsive testimony on August

20, 2018.

... ··············--··-····-··--------------- Robert Donaldson, Esquire, filed an Qmhib�s Pretrial Motion for relief on behalf of

Ellis on March 1=9, -20.18. After he was discharged by Ellis>as counsel, on October 1, 201 a, Ellis filed .an Omnibus Pretrial Motion for relief as a self- represented li_tigant which was

allowed by the court even though it was untimely. Attorney Donaldson'-$ Omnibus Pretrial Motion was. in thenature .of a writ of habeas corpus and a rnotionforhls client to be able

to have hard copiesof discovery documents prior to trial. Atheari_ng held on the Omnibus

pretrial Motion on March Z:3", 201.8 Atty. Donaldson asserted 'that" he was going to file

additional motions, one having to do with the software called Cell. Hawk, and a motion for

change of venue. Eilis's Omnibus Pretrial Motion contained a Motion to Dismiss all

Charges; a Motion-for-Change of Venue and Ven ire; a Motion torseverance, a Motion to

Suppress: Prison. Phone Call Recordings and Prison Inmate f.,fa,VLetters,. a Motion to Suppress: Warrant for Sprint Cellphone#{267)257-3995 and/or Procedural and

Juris.dictional Defects dated 1/17/2014, a Motion to Suppress: Procedural and

Jurisdictional Defects S.eart:hWarrarit7/22/2013:, a ry1otion toSuppressandzor Excluded

(sic) Additional. Physical Evidence or Materials at Trial.. a Motion for ln Forma Pauperis

Status:, a Molion for Appointment of Experts'. and a Motion for Appointment of

Investigator. Separately, at various hearings., Ellis also joihe.d g_en·erally in motions by

codefendant Green about the scientific reliability of the .Cell Hawk technology proffered

by the Oommonweatth ..

There was: no Motion to Suppress Ellis's geographic location throuqh' the use of

his cell phone of .cell .tower location information contained .in Attorney Donaldson's

Omnibus Pretrfal Motion. He did join in a suppression motion made PY Attorney Dickey

to suppress Green's Samsung cell phone found outside Hackney's resfdence. Transcript

9 . of Oral Argument, 06/22118, p�2. Eiiis's pro se Omnibus Pretrial Motion included a

''Motion to Suppress: Warrant for Sprint Cellphone #(267)257-399�' and/or Procedural

and Jurisdictional Defects dated 1/17/2014". ln it, he asserted. that the .Commonwealth

sought and requested the court to issue cm· order directing the disclosure of records concerning electronic communicauon services provided in section :0743 of the

Wiretapping and Electroh.ic Surveillance Control Act, 1.8 Pa.C .S.:§ 5743. He also asserted

that police officer Matthew S. Starr sought permission and/or authorityto obtain a search

warrant for the contents of (electronic information stored within) a Sprint. cell phone With the number 267"'2�7-·3_995. The court can find no record that such search warrantwas

sought, and the.Oommonwealth asserts thatone was not obtained. for telephone number

267-257�3995,2.

Ellis also· asserted that the. search warrant lacked the siqnature of issuing authority and was procedurally defective. In his motion, .although he used the number 267...;.257-

3995 in its caption, he identified the cell phone he was talking about-as a Sprint HTC

cellular phone (mooel.PG 8.6100), fee id, ntn8pg86100, meid hex a10,00017 bdf 44, 5/h16.

nh276$9, with the-contents to be searched to include, but not belimlted to, calls received,

calls made, missed calls, contacts Within phone, text messages received, but not limited

to, vclcemall. videos.downloads, emails and pictures stored within. He stated thata copy

of the applicable. search Warrant w�s attached to his motion and made ·part thereof, as

Exhibit C. He requested a hearing pursuant to. Franks vDelaware, 438 .U.S.. 154 (1978),

alleging that Matthew S: Starr was subsequently terminated from the Altoona Police

Department for ·fraud and dishonesty. He requested the court to suppress ariy and all

2 At the motions h·�arjng.o_n August 7,, 2018, Ellis stated thatthe phone subscriber ofthat number was Nafeesah Ellis.

·············----·------------------------------- evidence of the. Sprint cell phone dated 1117/14. The affidavit of probable cause of the

search warrant attached to the defendant's motion as exhibit C reveals thatthe Sprint

HTC cellular phone model PG 8$100,. with the other identifying numbers used by

defendant in his motion; was found on the dresser in the victim's bedroom. The affidavit

also revealed that the cell phone has been in the custody of the Altoona .Police

Department evidence room since the time of the incident.

At the time the motion was· filed, Ellis, who had been a pro· se litfg_ant, was

represented by Attorney Ferr, who had been· appointed to represent .him on September

26, 2018. Reg_ardless of whether this Omnibus Pretrial Motion for Relief thus cohstitµted

hybrid representation.Ellls did not raise in his motion any request-to suppress lnformatiori

about the location of this cell phone. His final requested relief was for the. court to

"suppress any and all evidence .seized pursuanUo the search-warrant and/or' procedural

jurisdictional defects··of the Sprint cell phone.dated 1/17114."

Ellis also filed a Motion to Suppress and/or Excluded {sic} Additional Physical

Evidence or Materials at Trial. In item A he sought to suppress any $nd ·aH prior bad acts

of defendant Ellis·; in item ·B he sought to suppress any anq all prior criminal ccnvlctlons:

in item C. hesouqhl to suppress the "geographical origins of Defend.ant Ellis", He went on to list with sp�cificity other items. and witnesses' statements and telephone .calls he Wi$hed to have suppressed. By the plain reading of item C aslisted, the court took it to.

mean where hewas born or originally from, as he was hot originally from Blair County,

but from the Cit{of Philadelphia. No request to suppress his geographic Jocation or that of his cell phone is lncluded in this section of his motion.

11 In a hearing on the Omnibi.rs Pretrial Motion held Octobers, 201t_ counsel for Ellis

mentioned the Carpenter case; After that hearing the court gave counsel twenty days to submit a brief. Transcript of Motions in Matter;.. 10/09118, p. 28i II. 22-25. Briefs wete

subrnitted.and the court.rendered .an Opinion and Order on December 14, 2018. Notably

absent from the arguments is any mention of suppressing .evidence pursuant to

Carpenter.

At trial, the; Commonwealth introduced numerous other- fact witnesses besides

Griffith and Denny; .and also expert witnesses, that established its theory of the case of

Ellis as the murderer. Also during the trial, Ellis unsuccessfully attempted. to demonstrate

that the lnvestlqatlon was mcomplete and thatthere was a party-going on downstairs at

the decedent's residence, as evidenced by the numerous shoes in the living room, the

Newport cigarettes throughout the house, the many alcohol bottles throughout the house;

and marijuana _i_h the home as well, and that it could have been someone else that

committed the murder. The jury rejected this theory.

We shall now address eaC.h of the issues raised by Ellis in his post-sentence motion ·seriatim.� 1. There was noactual conflict nor any appearance of impropriety such that �he court should have rec used itself or the remainder of the.. Bl;lir County Bench. The court fµrther has no power or authority to force the District Attorney's Offlceto recuse itself from a ease based on a mere- accusation of a conflict of interest.

The applicable legal standard fora motien seeking recusal .of a judge is as follows:

We recognize thatour trial judges are honorable, fair and competent, and although we employ an abuse of discretion standard, we· do so recognizing that the judge.- himself is best qualified to ga1,.1ge .his ability to preside impartially. A_ trial judge should grant the motion to recuse o·n1y if-a do.ubt exists as: to his or her ability to preside. impartially or if- lmpartiafity can .be

3 The courthas.rnerelysubstltuted numbers.for .letters. 12 reas.oh-�bly questioned. In order to prevail on a motion forrecusal, the party seeking ·recusal ·is- required to produce evidence estabiishfog· bias, prejudice or unfalrness- which raises a substantial doubt as- to the· jurist's apility to presldelmoartially.

Interest of L V.,. 209 A:3d 399, 415 (Pa. Super. 2019) (internal citations arn;f quotation

marks omitted). In seekinq to disqtJalify a prosecutor, a defendant.must show more than mere allegations of a conflict of interest. Commonwealth v. 1'i1ulholland, .702 A.2d 1027;

1037 (Pa. 1997)·. Ellis·. c:ontends that because Griffith is the daughter" of the elected Prothonotaiy of BlairCounty, Robin G. Patton ("Patton'')4,the entire.bench ofBlair County

and the District Attorney's office should not have participated in his trial. Before jury

selection, the trial. court placed on the.record thattt had no sod�I and rnlnimal professional

contacts with the elected Prothonotary, arid made a determination that the court could

preside impartialty over the matter: At jury selection the court dlsclosed the relationship

between Griffith and, the.eleeted Prothonotary to the prospective jurors.. N.T., 01/07/19,

pp, 69-70. There was no response from the prospective jurors to: the. court's question

regarding this relationship .and whether it would affect jurors.' :ability to be fair, ancl no

further inquiries made· by defense counsel. Id. Ellis points lo no ·other mention of this

relationship in the actual trial record.

The terms of Griffith's plea agreement were freely admitted. b:y the Commonwealth

in this case. Ellis also readily concedes that he is not.leveling any· accusations of this

court beiri9. "biased. prejudiced or unfair." Moreover, he citesto casesthat are completely

inapposite. See Commonwealth v. Eskridge, 604 A.2d 700- (Pa, 1"992.};. Comm. ex rel.

Atmorv. Armor; 398 A2d:1°73 (Pa. Super: .1979).

4 R.qbin G. Patt.Ori was not a \,yitne�s at trial.

13 In short, despit� quoting at length from the judicial canons and cases that describe

prosecutors as "stewards of Justice;" Ellis provides no legal authoiify that. stands for the

proposition that when a bloloqlca: relative ofa county row officer is _qalle_d as a witness in

a case, the bench and district attorney of that county must remove themselves from the

case. Nor does he pointto any decision rendered by the court· that was· improperly based

on bias, prejudiceor unfairness:

Moreover; the court heard extensive testimony from First Deputy Prothonotary

Vicki Claar atthe hearing on August 7, 2018: . Notes .of Testim'ony on Omnibus. Pre--Trial

Motions,. 8/7/18, pp, 27-34, Ms. Claar testified that the Prothcnotary's office took steps

to insulate Patton from .any involvement in issues. related to Griffith. lg. Finally, Ellis

offers no substanfive evidence, nor even an.y allegation, thatthedistrtot attorney's office

had a conflict" of interest. arising out of the relationship between GJiffith and Patton. Finding no support in·the record nor in the law for Ellis.'s claims in hisflrst issue, the court shall deny the same. 5

2. The, court properly denied Elli$'s Motion to Suppress:_.evidence.

The courtnoteejhatwlth respect.to this. issue we rely primarily on our prior Opinion

and Order entered of record on December 28, 201.8. Additionally, . as argued by the

Commonwealth ih its rnernorand um of law'to the court; E.llis at no tim.e .caned or attempted

to 'Call former Detective. Matthew Starr to the stand to raise an issue relative to Franks v. · Delaware, 438 U.S. t54 (1978). The Pennsylvania Supreme Court has· explained the

holding in Franks:

The United $tales· Supreme Court recognized the right- to ch-allenge an affidavit's· veracity in Franks ii. Delaware,[. .. ] which addressed whether a

5 The court also noJ.es-that:itent.ered an.order on November 27� 2018 denving.the motion for racusal and indicating that the court had no relationshlp with Patton that would create aruappearance-cf impropriety.

14. defendanthas the. right, under the Fourth and Fourteenth· Amendments, to .challenge the truthfulness of factual averments in an -affidavit of probable cause. The Court held where the defendant makes a substantial preliminary showing the· affiant knowingly and intentionally, or with reckless disregard for the. · truth, included a false statement in the affidavit, the Fourth Amendment. requires a hearing be. held at the defendant's request, The Court emphastzed the defendant's attack on the affidavit must be 'more than conclusory-and must be supported by more than a mere oes"ire to cross examine [ ]':· the defendant must allege. deliberate falseh.poo or reckless dis regard for the, truth, accompanied by an offer of proof.-lf the: defendant meets thesereq ulrernents, but the remainder ofthe affidavit's. content is still sufficient to establish probable cause, no hearing is required: If the affidavlt's remaining .content is .insufficient, a hearing is held, .at which the defendant must establish, by a preponderance of tlie· evidence, the allegafio.n :,of perjury or reckless. disregard. If he meets this burden, the affidavit's false material is disregarded; if its remaining content ls lnsufflclent to establish probable cause, the search warrant is voided, .and the fruits thereof are excluded. ·

Commpnwealth v. James, $9 A.3d H30, 188 (Pa. 2013) (internal citations omitted), Ellis

still points to no "deliberate falsehood or reckless disregard for the .truth" nor any offer of

proof pursuant lo Franks. Ell[s's bald-faced assertion is that Petec\ive· $far.r committed a

fraud in an unrelated matter. so therefore; he committed afraud in this case. Other than

thatfaulty lo�ici. Ellis off.ers no substantive argument as to how-the court erred in denying

his motion to supptess. J:\Gcordinglyi his motion is denied.

3-, There was no Bra·dy nor other discovery violation regarding the testimony of Kelsi Bergmann.

In the landmark case.of Brady v. Maryland, 373 U.S. 83; ·10.L. Ed .. ·:2d 215 (1963),

the United States -Sµpreme Court held that "the suppression by the prosecution pf

evidence favorableto an accused upon request violates.due.precess where the evidence

is material either to.guiltor to punishment, irrespective of the good .faith or bad faith of the

prosecution." Id. at 8.7. The.Pennsytvania Supreme Court has held:

[T]o provea Brady vlolation.the defendanthas the burden.otdemonstratinq that: "(.1) the prosecutor has suppressed evidence; (2) the evidence,

15 whether.exculpatory or impeaching, is helpful to the defendant, and (3) the suppression prejudiced the defendant," Prejudice is demonstratec where the evidence suppressed is material to guilt or innocence, Fµrther, "[fJavorable evidence is material, and constitutional .error results-from its. suppression bythe government, if there is a reeeonableprobaollltythat, had the evidence. beeri disclosed to the defense, the result ofttle proceeding would have been:different. A reasonable probability is a probability s.ufficlent to undermine confidence in the outcome,"

Commonwealth v. Koeh/er,_-36A.3d 1.21; 133 (Pa. 2012) (internal citations omitted). Ellis

argues that the Commonwealth-failed to disclose the 'untruthtulnsss" of Bergmann's testimony. Be:rgmart_n was not·called as a witness by the Gomtnonwealth nor was she

called by Ellis. As hated by the Commonwealth, any discrepancy in Bergmanh's

statements could 'have been demonstrated by Ellis during his. case-in-chief. For these

reasons, no discovery violation occurred and no relief is clue. This motion is denied.

4. The court did not err in refusing to limitot. suppress the interception of his phone records .and written communications obtained while he was incarcerated, Qor· .dld it err in allowing them to be played for·the jury. N<> objection_s wereralsed at trial to these recordings.

Ellis presents a boilerplate argument relative to his right to be free from

unreasonsble-searches and seizures iri support of his contention that the content of his

prison calls should have been suppressed. However, as correctly pointed out by the

Comrnonwealttr, 'the court specified in its Order dated octcbers, 2'01 $ and filed of record

on October 26,. 20·18· .that the court denied this motion 'without prejudice to Ems.

Specifically the court indicated that the motion to suppress was denied "without prejudice

to the Defendants ability to raise an individual item of correspondence and establish an expectation of privacy, su.ch that the matter should be litigated:" ORDER, 10/9/18,. The

record reflects that Ellis never renewed this argument nor supplemented it with the court.

Therefore, the court finds this issue waived at this stage of -the proceedings. Ellis never

16 raised or attempted to articulate any reasonable expectation of privacy in his.

communications from ', prison, either by mail or by telephone. See .Commonwealth v. Hawkins,. 718 A2a ·265.1 268 n;3 (Pa. 1998) (it is "an essential element" for a defendant

seeking suppression to satisfy the burden of proving that he or she has a legitimate

expectation of prfvacy): Commonwealth v. Caban, 60 A3d 1:201 1.2.6 (Pa. Super. 2012),

appeal denied, 79 A.3d '1097 (Pa. 2013) (To prevail in a challenge to :the search and

seizure, [ ... ] a gefendant accused of a possessory crime must O ·estat:.>Ush, as a threshold

matter, a legally cogniz.able expectation of privacy in the area se.arche�t:")6

Moreover, the Pennsylvania Superior Court has held that a prisoner has no

reasonable expectation .of privacy in his non-privileged mail. Commonwealth v. Moore, 928 A.2d 1092,.1102 (Pa Super. 2007), In Commonwealth v, Prisk,. 13 A.3d 526, (Pa.

Super. 2011)1 the Superior Court held that an inmate did not have a reasonable

expectation of privacy in conversations that he had in a prison visitation room. Id. at 532.

In Commonwealth v. Byrd, the Superior Court held that the evidence ln th�t case

(including a. wa.rning that the calls were recorded played during the conversation)

demonstrated that defendant consented to recording of jailhouse telephonic conversations .wit� visitors, under the mutual consent exception to the ·wire.tap Act ki.,

t85A.3d 1015, 1.019 (P�. s:uper ..2018). In regards toa telephone-call between an inmate �nd his parents, the Pennsylvania Supreme Court in Commonwealth v.. Beumnemmers

observed:

Simply stated, there is no basis to conclude that the privacy rights of or Appellant hisparents werelnfrinqed when their March 2, 2-001 telephone conversation wasrecorded. These individuals were actually awarethat.their

6The.Cabon case was overruled.on other grounds. see tn re L.J,, 79 A.3d 1073 (Pei.: 2013) (prospectively holding that an appellate courtrevtews the suppression �videri.c.e and does not also.consider trial evl9ence in determlnlngthe correctness of a suppresslon court ruling). telephone conversation was being or could be intercepted and recorded by prison authorities, ·

Commonwealth . . v.. Beumnemmers, 960 A.2d 59,79. (Pa. 2008),

The court permitted Ellis to ralse the issue of the intercepted communications and

not only did he-faH·to do -$0. or attemptto litigate the issue, he· never specifically objected

to the admission of the same. The Commonwealth offered to redact the calls of.certain

information r$garding_ Eiiis's incarceration. Notes of Testimony, 01i28f19, pp. 277�279.

There was no objecton by Ellis When the Commonwealth's witness, Travis Denny

("Denny"); testified that he was incarcerated with Ellis at SCI Huntingdon. Notes of

Testimony, 01129/1�; pp. 76.;80. The Commonwealth clearly put on the record that this

informatton was part of Denny's 'testimony and no objection was lodged .at any time prior

to Denny·� testimony. Jg., 01/29/19, pp. 47�5.0: There waa.no objection by Ellis-when

the Cornrnonwealth's witness, Lieutenant Anthony Eberling·, testified that Ellis was

incarcerated at SCI Huntingdon in the summer of 2017. Note·s of Testimony, 1/3.0/19,

p. 10, IL 5�10. Nor wasthere any objection to the testimony of Corrections Officer Joseph

Watt regarding Etlis's mail being scrutinized by the Department of Corrections. N.T.,

1/30/19, pp. 27-32. There was no objection to the testimony-at Corrections Officer Travis

Weakland that dealtwiththe same topic.. N.T .., 1/30/19, pp, 33-·3·s-. the Commonwealth

asked the defense, the· day before calling the.se witnesses, if Ellis accepted the

stipulation re�ardihg_ the exhibits entered through these corrections officers regarding

Ellis;s mail moriitbnrig by the Department ofCorrections. N.T., 1/29/19, p. 137, 11.16�25.

Counsel for Ellis indlcated he consulted With E:llis and replied,_ ·"We: have- discussed them

briefly and they are .acceptable, Your Honor." Id., p. 138_. 1-6: As argued JJY the

Commonwealth, Ellis's .objection at trial to the. introduction of the letters written by him

·····-·····-········-·--···-········-···-·---·-·-·····-····-----·----··-·------------------------------ from prison was "based upon the motion previously made." N.T., 1/3_0/19, p, 106, IL 14-

25.

There was no Indtcatton whether this was a reference. .to the suppresslon motion

filed by Ellis and subject to the court's ruling in its October 9, 20·19 order. and there was no arqument made relative to the objection. jg. During the fourth day of trial, when the.

Commonwealth sought to play portions of the recorded telephone prison calls between

Ellis and .Griffith and between Ellis and Jarell Smith, this exchange occurred:

Couns.el for the Commonwealth: ft is my understanding forthe record

we're playing_ the entire call at the request of Aito.rney Farr with no

redactions first.

Counsel fb.r Eiiis: That's accurate, thank you.

N.T.. 1/31/1·9, ·p·..61, 'fr. 18-21. Clearly the record supports the Commonwealth's

oontention that it was Elli�'s desire to have the cans· played in ·tf,ek entirety Without

redaction.

For all of the .above stated reasons, . Ellis has not established . a basis fat the court

to.grant any relief: The motion is denied.

5 .. There ls no mer,t to Ellis'.$ motion regarding the commcnwealth's witness Supervisc>ty· Agent Thomas Moore ("Agent Moore'}

Ellis arg.ues tfiatthe·Commonwealth "violated the mandates of Brady v. Maryland'

when it.failed todisclose its intentions, before cornmerrcementet thetrlal..of calling Agent

Moore to testifyas. art expert regarding certain language and words purportedly used by

the Pefitioner/Oefendant," ELLIS'$ BRiEF IN SUPPORT OF MOTfON FOR RECO.�SlDERATION OF

SENTENCE, ARR.EST OF _JUDGMENT, AND A NEW TRIAL, 8/1.9119,. 1I e (unpaqinated), At trial,

··-·-···-·---·-·--··-···-·---·--····-·------------------------------------- after the Commonwealth conducted an examination regarding_ Agent· Moore's expert

qualiflcatlons and moved for the court to recognize him as .an expert, Eiiis's counsel

conducted cross exatnmation on this subject. KT., 1/31/19, pp. 69-70.. Defense counsel

then indicated to the court, "I. have no further questions. I w.ill [accept] him as an expert

he's been around. Thank· you Your Honor." N.T., 1/31/19, p. 70,. IL 23�25 (homophone

inserted)? Notably absentfrom the record is any indication of surprise. any objection to Ageht Moore befng: recognized as an expert or.any mention that Ellis was.unaware ofthis Witness'. To the. contrary, the defense acceded to· the Commonwealth's request to

recognize Agent Moorees a.wltness and added, "he's beenaround." There is no means

by which the court can.nowrule on this issue.after the jury has rendered a verdict and

there appears a·bsolu.te_ly.np evidence in the record that Ellis was unaware of this witness

orwhat he was g·oing_ to. presentto the jury� The Commonwealth provided written notice

of Agerif Moore's. testimony oh April 18·,. 2.018.. COMMONWEALTH's· NbTiQ.E OF EXPERT

TESTIMONY, 04/1:8/t8, p. 8 ,r 11, 12. The motion is denied.

6. Thereis noevidence of record thafany member of.the jury pool viewed Ell.is in restralnts, . .

Ellis points to no portion of the record that demonstrates that any_ member of the ji.Jry pool was able tosee.his restraints at jury selection on.January 7,, 201-9. The inclication

that the court made that Ts quoted by· Elli� as demonstrative. that hls "shackles" could

actually be viewed Is disingenuous because the record is clear thatthe quote on page

46 occurred at.sldebar. Notes to Testimony at Jury Selection, .O.i/07/19, p. 48, II. 18-25.

7 The court notes. that the word "except" appears in the transcript. The court believes when :the. context of the record is viewed the word thatshould.appear is "accept." These two words sound thesame when spoken but have decidedly different meanings.

20 Rather, the court took the ..opportunity of a break to insure that it was not possible for a

prospective Juror to � the restraints: Notably, juror number 18 wh·en questioned by

Eiiis's counsel if thejuror noticed anything about Ellis this Juror repiied,_ "Notoffhand, no."

N.T., 01/07/19, p·.·:�6. II: 16-22. The court gave both defense counsel the opportunity to

demonstrate on the recordthat thejurors could see Eilis's restraints.. N.T., 01/07/19, p. 20, II. 3-:20. There.simply is nothing in the record that demonstrates that the jurors viewed

restraints on Et!Is at jury selection. Moreover, even if a prospective juror did notice the

restraints it is clearthat the:jury at some point became aware that Ellis was incarcerated.

As previously lndicated, Ellis either did not object to this fact bein_g presented to the jury

or he indicated his desireto have un .. redacted prison calls presented to the jury. The

Pennsylvania Sµp·reme Court has observed:

We observe .at the outset that it is well-settled under common jaw .and constitutionally as incident to a fair trial without prejudlcetnat defendants- appear free-from shackles or other physical restraints. The sight of shackles and gags,. moreover, constitutes an affront to the very- dignity.. and decorum of judicial proceedings. While there exists a legal presumption .aqainstthe necessity of physical restraint of an accused in the- courtroom, there are exceptional circumstances when the employment of such techniques are an .acceptabte practice where such "restraint [is] reasonably ·ne:ce�sa.ry to maintain· order." Exceptional Circumstances often have beenfound ln sister jurisdictions as well where the defendant disrupts the proceedings, where there is evident. danger of escape, and where the court has. reason to. believe: that an unrestrained defendant mighfattack others.

Commonwealth v.: Jasper, e1 O.A.2d 949, 955 (Pa. 1992). The Commonwealth aptly cites

to the considerations the court encouhtered with Ellis·'s pre-fria] behavior,

COMMONWEALT.H $ MEMORANDUM IN RESPONSE TO DEFENDANT'S 1 POST ,$ENTENCE MOTIONS,

8/27/19, p, 13--1"4 .. AU =of this behavior factored into the court's thinking with regard to

Ellis'.s. potential to disrupt the proceedings. Still, the court believed it-attempted to balance

the need to rnainta in order and safety ln the courtroom with Eilis's rights to not .appear

21 before the jury in· restraints. There is no .indication that he was viewed either at trial or

durihgjury selectiorr in restraints. Nothing prevented counsel from a_ski.ng or requesting

the court to ask at .sidebar whether any other juror noticed anything about Ellis· such as

restraints. Without such an indication .in the record, no relief rs due -. Even ass.urning,

arguendo, the· jury or ·pro�pective jurors did view Ellis in restraints, such- an occurrence

did not preiudieeEllis where it was conceded by the defense·that hewas incarcerated

prior to trial, Furthermore, this court took affirmative steps to insure that any restraints

would not be vislble.to the prospective jury pool and the empaneled. jury. The motion is

denied.

7. There is no merit to Eilis's contention that the Commonwealth's w.itness Ashley �rupaker was unknown to. the.defense and no objection lodged of record to her testimony. · ·· ·

As is readily conceded by Ellis, he did not object to the· Commonwealth calling

Ashley Brubaker as.a witness. N.T., 01/29/19, pp. 138.;.139 . .A thorough offer of proof

was provided of her proposed testimony by the Commonwealth. Id .. After this offer of

proof, Ellis. ralsed no objection, did not indicate surprise and otherwise .offered no legal

authority to prevent hertestlmony. Id. Simply put there is nothih_g preserved in the record

for the court .to analyze. If the defense was surprised by the: Commonwealth's

presentation of-this Witness the time to raise such an objection was a:t trial, not after the

verdict was rendered.

The Commonwealth maintains that there was no formal interview conducted ofthis

witness prior to January.zs, 2019. If Ellis disputed this, he had the opportunity to raise if

via cross examination, Jn fact, Ellls's counsel did inquire into wh�n this· witness first.spoke

to police and her answer was consistent with the Commonwealth's contention thatshe

.. -·· . ·- ··---·----····-·-·----····- ·---------------------- spoke to them on the· nighfaf the homlclde. N.T;, 01/29/19, p.-, rse-rsa. Additionally; the

defense extensivelycross examined this witness relative to text me�ages on the night .

.of the homicide. between. her and Ell.is. N. T., o 1 /29/19, pp. 159:-·16'3. There is no merit to

thls.motion and the. court· denies relief.

8. The court's· refusal to allow Ellis to cross-exarnlne the Commonwealth's Witness; D�m.ny, with _cl .dccument that. wa:s not authored by him. was compelled ·by·the P�nnsylvania Rules of Evidence·. and appiicable law.

Ellis cites to the _general applicability and foundational. lawertshrined inboth the

United States Constitution and the Constitution of the Commonwealth of Pennsylvania.

DEFENDANT'S BRIEF, 8/1�/1�. ,r h {unpaginated). There was, however, no dehia.l ofthe

rightto confrontation iri this trial. As the Pennsylvania Superior Court has. observed:

The. C9nfrontation. Clause in the Sixth Amendment to the United States Constitution provides that all criminal defendants enjoy·"the right-to confront and cross-examine adverse witnesses," Moreover, "the- exposure of a witness' motlvatlon in testifying is a proper and important 'function of the constitutionaily-protected right of cross-examination;" Although the right of cross-examination is :a fundamental right, ifis not absc;>I�.

Commonwealth \i. Rosser; 135 A.3d 1077; 1087-1088 (cltations omitted, emphasis

supplied). hi Rosser; the Superior Court described the two-step inquiry regarding a

violation of the: ri_ght of confrontation when the trial court limits: cross-examination that an

appellate court must undertake:

First, we inquire whether the limitation prejudiced the examination of that particular witness. In other words, absent the limitation, w.ou_ld thejury have received a "s.ig_nifieantly different impression" of .the witness's credibility? Second, if 'there was error, we must determine whether it was harmless a beyond reasonable doubt; itso, reversal is not warranted.

Rosser, at 1088 (citations .omitted). A review of the trial transcript demonstrates that

counsel for Ellis attacked Denny's motivation for testifying. N.T., 01/29/19, pp. 86'"95.

The court put absolutely .no limitatioh on this Une of questioning anc Denny readily

23 admitted that his rnotivationfor testifying was that.hewanted to receive "leniency." N.T.,

01/29/19, p. 95_; IL �12.. Penny was portrayed by this crcss-examinatlon as being

motivated by his desire to have hi$ sentence shortened. Theretore, there was not a

significantly diff�r�nt- impression presented to the jury when the. court prevented defense counsel from using-a writi.n_g not authored by the witness to.impeach him.

"It is lonq.settled that a prior inconsistent statement may be: used ·to impeach a

Witness:' Commonw({Jalth v Brown, 448.A.2d 1097, 1102 (Pa .. Super. 1982) (citation

omitted). "In order to· de> so, there must be evidence that the statement was made or

adopted by the witness Whose credibility is being impeached.J.' Id., (emphasis supplied)

"lrnpeachment throlig._h .extnnslc evidence is not generally allowed on matters collateral to the issues at trial." -Commonwealth V; Bailey, 469 A.2d 249, 264-26.s:·(Pa. Super. 1983).

The Superior Court has. discussed the. proper methods for impe.aching a. witness;

The credibility of a. witness may be impeached (1) by showin:g that on a prior .occasion he made a statement, either oral or written, that is inconsistent with his. present testimony; (2) by competent evidence tending to show bias, bad character-for truth and honesty, or defects in memory, perception or capacity or ·(3} by the competent contradictory testimony ·of other witnesses wh0$€ version of the facts differs from that of the wifoes_s being impeached_.. ·

The first ofthese three methods otimpeacnment is obviously-inapplicable, for it is axiomatic that when attempting to discredit a· witness' testimony by means of a prior inconsistent statement, the· ·s_tate,ment must have been. made or adopted by the witness whose credibility is being imp�a'ched.

Commonwealth v. Baez, 431 A.2d 909, 912 {Pa. 1981) (emphasis supplied). When Ellis

attempted to enter a letter written by Denny's girlfriend to Denny's attorney, the

Commonwealth objected, �r.guing the identity of the author of this letter was not relevant

24 and that D.enny was not the author ofit. N;T., 01/29/19, pp. $7.;89. This exchange then

followed at sidebar:

The Court: So how can this witness do anything except speculate about the rnotlves of the person who wrote the letter?

Counsel for Ellis: I-am just going to. ask if he talked to his girlfriend about

this. If he talked to her and had requested she write a letter to his-attorney

seeking leniency,

Counsel for Commonwealth:. _ I don't object if he asks-

The Court: Butthen .at.that point yo4 still can't get into. the contents of the

letter..

Counsel fot Ellis:: He is talking about heroin. The Court: Throuqh this witness. If you can find the girlfriend-and call her;

I am not.saying you couldn't .get it in that way, but I don't know-how you can

get it in throuqh this· witness properly.

N.T., 01/29/191 p. 9.0,_ II. 1-15. The court did not bar cross exarnlnation of Dennyregarding

his motivations to· testify and did not bar the admission of the letter. The court merely

lndicated.that.lt defense counsel conceded this letter was not aethored by Denny he could notbe cross-examined re·garding the motivations of the person who did write it. The court

also left the possib_ility.-of tailing Denny's girlfriend open to the defense. Eilis did not call her. The motion is denied,

9. By raising· the Issue for the first time in his post-sentence motion, Ellis-has waived the . .challen_ge he now makes pursuant to Carpenter v, United State,s.

· Pennsylvania Rule of Criminal Procedure 581 states, 'in part;

-25 (A) The· defendant's attorney, or the defendant if unrepresented, may make a motion to. the court to suppress any .evidence alleged ·to have been obtained in violation ofthedetendarrt's ri9.hts. · ·

(B) Unless the· opportunity did not previously exist, or ·the interests of. justice otherwise require, such. motion shall be made only after a case has been returned to court and .shall be contained in the omnibus pretrial motion set forth in. Rule 578. If timely motlon is not made. hereunder, the issue pf suppression .of such evidence shall .be deemed to be waived.

Pa. Crim: R. p�5s·1 {A).: (B).(emphasis supplied). Ori October 1, 20.18,:Ellls filed a pro se8

Omnibus. Pre-Tri1:;1I Motion. No argumentorrnotion relative to thedecision in Carpente.r

v.. United $tatfJ$,.- U.S .. --. 138 $.Ct. 2206, 201 L.Ed.2d 507 (2-0.18) with regard to

Eiiis's historical cell siteIocetion information ('1CSLI") was raisedIn this motion: At the

hearing on October 9, 20-18, counsel for Ellis mentioned the. Carpenter case, After that

hearing the courtqave counsel twenty days to submit a brief. ·Transcript of Motions in

Matter, 10/09/18, · p. 28, II. 22..25. Briefs were submitted and the court rendered ah

Opinion and Order on Dec.ember 14, 2018; Notably absent from the arguments is any

rnentlon of suppressingevidence pursuant to Carpenter. Moreove-r,.the written Omnibus

Pre-Trial Motion for relief is docketed as filed on October 1., 2018,. This fllihg as noted

below is after-the court appointed. Attorney Forr to represent Ellis. The .reeord reflects

based on the' testimony at trial that no objection to the mtroducton of this evidence was

made and the defense attempted to counter it with their own -expert rather than. exclude

it Therefore, .the. issue has. not been properly preserved arid it is waived, as further

demonstrated by tne analysis below:

8 The court notes that Ellis waived counsel. after a colloquy and was a self-representedllrigantfromapproximately August 8, 2018t<:>-September 2p, 2018. On August 20, 2018, Elljs .asked to have the.court.appolnt counsel and the court appointed R. Thomas,F_orr, Esquire, as counsel on September2�, 2018. onoctober..9, ·2018, Attorney Forr argued on behalf of Ellis based enthe lssues.ralsed iri his Omnibus Pre-Tria! Mption.