J-A20042-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRANDON THOMPSON : : Appellant : No. 479 EDA 2023
Appeal from the Judgment of Sentence Entered September 14, 2022 In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0006670-2019
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 18, 2024
Appellant, Brandon Thompson, appeals from the September 14, 2022
judgment of sentence entered in the Court of Common Pleas of Montgomery
County following his convictions for First-Degree Murder, Burglary, Robbery-
Inflicts Serious Bodily Injury, Robbery-Commits or Threatens to Commit a
Felony, and Possession of a Weapon, and two counts of Robbery-Fear of
Imminent Serious Bodily Injury.1 Appellant challenges the denial of his
request for a continuance to obtain new counsel, his post-sentence motion
challenging the weight of the evidence, and his motion to suppress, as well as
certain evidentiary rulings. After careful review, we affirm.
____________________________________________
1 18 Pa.C.S. §§ 2502(a), 3502(a)(1)(i), 3701(a)(1)(i), 3701(a)(1)(iii), 907(b),
and 3701(a)(1)(ii) respectively. J-A20042-24
A.
We glean the relevant factual and procedural history from the trial
court’s October 26, 2023 opinion. On April 2, 2019, at 10:53 PM, police
responded to a report of gunshots at an apartment in Norristown and found
Alonzo Anthony (“Victim”) deceased from multiple gunshot wounds. Police
spoke with Victim’s wife, M.G., who stated that Victim had gone downstairs
because they had heard banging on the door and after hearing tussling, a tall,
masked man (“first assailant”) came upstairs to their bedroom and demanded
drugs and money. She gave him both and the assailant took Victim’s cell
phone and keys. A second assailant then brought Victim into another room,
followed by the first assailant, and M.G. heard two gunshots. The second
assailant ran out of the apartment, and the first assailant stayed for 3 to 5
minutes before running out. M.G. described the first assailant as a Black man
in a ski mask who was 6 feet tall and husky, who spoke in a fake voice, and
carried a firearm. She described the second assailant as 5 feet, 6 inches tall
and wearing a ski mask.
Police also spoke with a neighbor, who stated that he had seen a man
exit Victim’s residence and run towards Green Valley Road. On Green Valley
Road, police recovered a hat with cutouts like a ski mask and submitted it for
DNA analysis. Police also recovered surveillance footage showing that, one
minute after the 911 call, one suspect ran along Green Valley Road and turned
onto Wood Street, and 3 minutes later, a second suspect ran the same way
and began shedding clothing near where the hat was found.
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In August 2019, the DNA results indicated that Appellant was a
presumptive positive match for the DNA on the hat. Police interviewed
Appellant, who became very nervous when police mentioned his DNA on the
hat. They also obtained a DNA sample for comparison, which indicated that
his DNA was the “most prevalent” DNA on the hat. Trial Ct. Op., 10/26/23,
at 3.
Police also learned that Appellant drove a burgundy Kia. They recovered
surveillance footage, which showed a burgundy Kia traveling towards Victim’s
house 20 to 25 minutes before the homicide, and a responding officer’s dash
camera footage, which showed a burgundy Kia driving away from the area.
Both videos showed that the Kia had several distinctive features—wraparound
headlights, 5-spoke wheels, and pinstriping.
Police then obtained a warrant for Appellant’s cell phone subscriber
information, call records, and cell cite data. A cell site analysis determined
that, at 3:42 PM on the day of the homicide, Appellant’s phone was near
Victim’s residence and traveled down Green Valley Road onto Wood Street,
the same route that the suspects ran after the homicide. Later that afternoon,
his cell phone traveled to Reading, Pennsylvania, then returned, accessing cell
sites in a general direction towards Norristown. From 8:25 PM to 11:04 PM,
the phone remained at a location in Norristown “a couple minutes” from
Victim’s residence, then left the area 10 to 15 minutes after the homicide. Id.
at 5. Police also traced Victim’s stolen cell phone and determined that it was
in the same general area as Appellant’s cell phone following the homicide.
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Based on Appellant’s cell phone data, police obtained a search warrant for his
Google location data.
M.G. later told police officers that Victim had been selling Percocet pills,
including to Appellant. She also stated that Appellant had attended two
memorial events for Victim, even though she and Appellant were not close,
and that she had told several people that Appellant had the same build as the
first assailant.
Following their investigation, police arrested both Appellant and
Rashaan Stevenson for the murder of Victim. Prior to trial, Appellant filed a
motion to suppress asserting that the warrant for his cell phone data was not
supported by probable cause, and that his Google location data, obtained via
a later warrant based on his cell phone data, was fruit of the poisonous tree.
The court denied the motion. The Commonwealth filed a motion in limine to
introduce evidence of Appellant’s drug use to establish motive for the murder,
which the court granted.
The Commonwealth tried Appellant and Mr. Stevenson together in
February 2022. Patrick McMenamin, Esq., a public defender, represented
Appellant. Relevantly, Detective William Mitchell testified as an expert about
the investigation into Appellant’s cell phone data, including that his cell phone
traveled with Mr. Stevenson’s cell phone on the day of the homicide. Detective
James Wood testified as an expert on Appellant’s drug-related social media
communications. The jury acquitted Mr. Stevenson of all charges but was
unable to reach a verdict as to Appellant.
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The court scheduled Appellant’s retrial for September 12, 2022. Prior
to the second trial, the Commonwealth filed a motion in limine to preclude any
reference to the first trial, which the court addressed at a pre-trial conference
on August 29, 2022. In response to the Commonwealth’s motion, Appellant
argued that Detective Mitchell “will be testifying regarding the movements of
[Appellant’s] cell phone in conjunction with a second cell phone. I think that
it’s appropriate cross-examination fodder to get into that he previously had
offered an opinion that had not been accepted by the jury.” N.T. Pretrial
Conference, 8/29/22, at 9. The court rejected Appellant’s argument and
granted the Commonwealth’s motion. Attorney McMenamin also stated that
he was unsure whether he would call Mr. Stevenson as a witness.
Also at the pretrial conference, the Commonwealth requested
permission to elicit testimony from Detective Wood that Appellant
communicated about drugs on social media prior to the homicide but not in
the month of April, after the homicide. In response, Appellant challenged the
relevance of this testimony. The court ascertained that the Commonwealth
planned to elicit this testimony through one yes-or-no question, as it did in
the first trial, and allowed it.
At the next pre-trial conference on September 8, 2022, Appellant had a
“heated” off-the-record discussion with Attorney McMenamin and then
informed the court that Attorney McMenamin did not plan to call a witness
whom Appellant wanted called. N.T. Trial, 9/12/22, at 8. The court explained
that it was likely a strategic choice. The same day, Matthew Quigg, Esq.,
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appeared before the court on an unrelated matter and asked the court, off the
record, if it would grant a continuance so that Appellant could retain him. The
court refused, and, thus, Attorney Quigg declined to represent Appellant.
On September 12, 2022, the morning of trial, Appellant requested a
continuance. He informed the court that he sought to retain Francis Walsh,
Esq., because Attorney McMenamin would not call Mr. Stevenson as an alibi
witness. Attorney Walsh was not present, and Appellant was unsure how long
he would need to prepare but estimated that he would need one month. The
court denied the request.
Appellant then proceeded to trial. At trial, the Commonwealth’s
witnesses testified in accordance with the above facts. Additionally, Detective
Mitchell testified about the investigation into Appellant’s cell phone data. The
Commonwealth also introduced evidence of Appellant’s drug use, including
through Detective Wood’s testimony. Several witnesses also testified that
Appellant drove a burgundy Kia, including Dalin Sim, Appellant’s paramour
who had rented the Kia for Appellant.
The jury convicted Appellant of the above charges. Appellant filed post-
sentence motions challenging, inter alia, the weight of the evidence, which the
court denied. B.
This timely appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925. Appellant raises the following issues for our review:
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I. Did the trial court deny Appellant of his right to counsel of his choice under Article 1, Section 9 of the Pennsylvania constitution and the 6 th and 14th amendments of the United States Constitution in denying a continuance request where counsel was ready to enter his appearance and trial counsel sought to withdraw his appearance due to being discharged by Appellant?
II. Did the trial court err in failing to grant a new trial where the verdict was against the weight of [] Appellant’s involvement [such] that it shocked the conscience and constituted a manifest injustice?
III. Did the suppression court err in finding that the search warrants for cellular telephone and geolocation data contained probable cause and [were] not overbroad in their scope?
IV. Did the trial court abuse its discretion in not permitting questioning related to Appellant’s codefendant, who was acquitted at a previous trial, where evidence of co-defendant’s lack of involvement was relevant to the credibility of the Commonwealth’s evidence as it related to Appellant?
V. Did the trial court err in admitting prior bad acts evidence related to Appellant’s drug use?
Appellant’s Br. At 6-7. 2 C.
Appellant first asserts that the trial court denied his right to counsel of
his choice under Article 1, Section 9 of the Pennsylvania Constitution and the
6th and 14th amendments of the United States Constitution because it denied
his request, made on the morning of trial, for a continuance to obtain new
counsel. Id. at 12.
2 Although Appellant included an additional issue in his Statement of Questions
Involved challenging the sufficiency of the evidence establishing his identity, he explicitly withdrew this issue in his brief. Appellant’s Br. at 6, 20.
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The decision to grant or deny a continuance request is within the sound
discretion of the trial court, and we will not reverse the decision absent a clear
abuse of discretion. Commonwealth v. McAleer, 748 A.2d 670, 673 (Pa.
2000). It is well-settled that “an abuse of discretion is not merely an error of
judgment[,]” but occurs 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[.]” Id.
(citations and internal quotation marks omitted). This Court “will not find an
abuse of discretion if the denial of the continuance request did not prejudice
the appellant.” Commonwealth v. Pettersen, 49 A.3d 903, 914 (Pa. Super.
2012).
Both the Sixth Amendment to the United States Constitution and Article
I, Section 9 of the Pennsylvania Constitution guarantee a defendant’s right to
counsel. McAleer, 748 A.2d at 673. “In addition to guaranteeing
representation for the indigent, these constitutional rights entitle an accused
to choose at his own cost and expense any lawyer he may desire.” Id.
(internal quotation marks and citation omitted). However, a defendant’s
constitutional right to counsel of his choice is not absolute and “must be
weighed against and may be reasonably restricted by the state’s interest in
the swift and efficient administration of criminal justice.” Commonwealth v.
Robinson, 364 A.2d 665, 674 (Pa. 1976) (internal quotation marks omitted).
A defendant’s right to choose private counsel “must be exercised at a
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reasonable time and in a reasonable manner.” Commonwealth v. Rucker,
761 A.2d 541, 542-43 (Pa. 2000) (citation and emphasis omitted).
In Commonwealth v. Prysock, 972 A.2d 539 (Pa. Super. 2009), we
set forth the following factors to consider when reviewing a trial court’s ruling
on a request for a continuance to obtain new counsel: (1) whether the court
“conducted an ‘extensive inquiry’ into the underlying causes of defendant’s
dissatisfaction with current counsel[;]” (2) whether those differences
constituted “irreconcilable differences[;]” (3) the “number of prior
continuances in the matter[;]” (4) “the timing of the motion” for continuance;
(5) “whether private counsel had actually been retained[;]” and (6) “the
readiness of private counsel to proceed in a reasonable amount of time.” Id.
at 543 (citation omitted).
Regarding factor 2, we have held that a “breakdown in communication”
with counsel and counsel’s failure to call character witnesses on the appellant’s
behalf does not constitute irreconcilable differences, and instead “amount[s]
to legal advice that [the appellant] did not want to accept[.]”
Commonwealth v. Broitman, 217 A.3d 297, 300-01 (Pa. Super. 2019)
(applying Prysock factors and determining that trial court did not abuse its
discretion in denying continuance to retain new counsel). In Broitman, we
also held that factor 4 weighed against granting a continuance requested “on
the eve of trial,” when trial had been scheduled for 2 months. Id. at 300; see
also Commonwealth v. Boettcher, 459 A.2d 806, 810 (Pa. Super. 1983)
(“condemn[ing] the practice of waiting until the day of the trial to request a
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continuance [to obtain] a new attorney[;]” noting that appellant did not
indicate that she had hired a private attorney until the day of trial).
*
Appellant maintains that he sought new counsel due to an “irreconcilable
conflict,” i.e., Attorney McMenamin refusing to call Mr. Stevenson as an alibi
witness, even though he had “created the impression” at the pretrial
conference that he would. He concludes that the trial court, thus, abused its
discretion and “denied [Appellant] of his right to counsel” when it refused to
grant a continuance so that he could obtain private counsel. Appellant’s Br.
at 12, 14-15. Appellant reviews the Prysock factors and argues that the
court did not conduct an “extensive inquiry” into the disagreement with
Attorney McMenamin; rather, he contends that the court only incorrectly
categorized the dispute as a “disagreement over trial strategy.” Id. at 16.
He also contends that he informed the court at the earliest opportunity and
had not caused other delays. Id. at 15-17. He also argues that the court
abused its discretion in denying the continuance by relying on (1) the lack of
new counsel, for which he faults the court because it refused his request for a
continuance, (2) the lack of a Notice of Alibi, which Appellant notes he could
not have filed himself, and (3) a “partiality [toward] moving the trial forward.”
Id. at 14, 18. Finally, he explains that he did not call Mr. Stevenson at the
first trial due to Mr. Stevenson’s self-incrimination issues that disappeared
following his acquittal at the first trial. Id. at 17.
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The trial court concluded that its consideration of the Prysock factors
supported its decision to deny the continuance. Trial Ct. Op. at 20-23. The
court found that Appellant was not prejudiced by its ruling because it would
not have permitted Mr. Stevenson to testify due to the lack of Notice of Alibi
and noted that a continuance would have prejudiced the Commonwealth. Id.
at 21.
Our review of the Prysock factors supports the denial of the
continuance request, and, thus, we discern no abuse of discretion. Regarding
factor 1, the court conducted an inquiry into Appellant’s dissatisfaction with
Attorney McMenamin. N.T. Trial, 9/12/22, at 17-21. With respect to factor
2, we agree with the trial court’s conclusion that Attorney McMenamin’s
decision not to call Mr. Stevenson as an alibi witness was a strategic decision
that was likely in Appellant’s best interest and in line with the trial strategy
that had resulted in a hung jury in Appellant’s first trial. Appellant’s
disagreement with Attorney McMenamin over trial strategy did not constitute
an irreconcilable difference. See Broitman, 217 A.3d at 300. Moreover, the
record contains no evidence that new counsel, if retained, would have chosen
to call Mr. Stevenson as an alibi witness. Regarding factor 3, although almost
three years had elapsed between Appellant’s arrest and his second trial,
Appellant had not requested a prior continuance.3 With respect to factor 4,
Appellant requested the continuance on the morning of trial. Finally, ____________________________________________
3 This is the only Prysock factor that does not necessarily weigh in favor of
denying a continuance.
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regarding factors 5 and 6, Appellant had not yet obtained new counsel, he did
not know when new counsel would be ready, and estimated counsel would
need one month to prepare.
When considering these factors together, we are unable to conclude that
the court’s denial of the continuance indicates that “the law [was] overridden
or misapplied, or the judgment exercised [was] manifestly unreasonable, or
the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or
the record[.]” McAleer, 748 A.2d at 673. Accordingly, this claim lacks merit.
D.
Appellant next asserts that the trial court abused its discretion when it
denied his post-sentence motion challenging the weight of the evidence.
Appellant’s Br. at 20. He argues that the verdict was against the weight of
the evidence and “shock[ed] the conscience” because M.G.’s testimony at trial
was inconsistent with her statements she had provided to police after the
incident. Id. Specifically, he argues that her trial testimony “shifted to better
match a description of Appellant” and “diverged from her [four prior]
statements to police[,]” in which she did not describe the assailant as “thick,
husky, or muscular,” or say that he used a fake voice. Id. at 23. He argues
that M.G.’s allegedly inconsistent trial testimony “directly led to [his]
conviction” because the remaining evidence is “not so overwhelming so as to
overcome [M.G.’s] false testimony.” Id. at 25. (internal quotation marks and
citations omitted). Appellant supports his challenge to M.G.’s credibility by
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noting that M.G. testified before the jury that she barely knew him but at the
sentencing hearing stated that her son called him “uncle.” Id. at 24.
Our review of the record indicates that Appellant did not mention the
discrepancy between M.G.’s police statements and her trial testimony as a
basis for his weight claim presented to the trial court. It is well-settled that
an appellant must raise a weight claim before the trial court in, inter alia, a
post-sentence motion to preserve it for appeal. Commonwealth v. Mikell,
968 A.2d 779, 780 (Pa. Super. 2009); see also Pa.R.Crim.P. 607 comment
(same). Furthermore, if an appellant fails to raise a particular argument
concerning the weight of the evidence before the trial court, he cannot raise
it for the first time on appeal. See, e.g., Commonwealth v. Jones, 191
A.3d 830, 835 (Pa. Super. 2018) (finding waiver where the appellant failed to
raise specific weight of the evidence arguments before the trial court, which
prevented the trial court from addressing those arguments).
Here, Appellant challenged the weight of the evidence in a post-
sentence motion. However, he asserted only that the verdict was against the
weight of the evidence because, relevantly, “[M.G.] was the lone eyewitness
to the [crime], yet despite knowing [Appellant] her entire life could not identify
him either by his appearance or physical characteristics, or by his voice[;]”
and that “[M.G.’s] testimony that [Appellant] and [Victim] were not friends,
or close, was clearly false given that [M.G.] testified at the sentencing hearing
that her children called [Appellant] “uncle[.]” Post-Sentence Motion, 9/29/22,
at ¶¶ 20, 31(e). Appellant did not specifically raise any claim regarding a
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discrepancy between M.G.’s statements to the police and her trial testimony.
Accordingly, he failed to preserve this argument for our review. Jones, 191
A.3d at 835. It is, thus, waived.4
E.
Appellant next challenges the court’s denial of his pretrial suppression
motion because the search warrant seeking his cell phone’s data was not
supported by probable cause. He also asserts the search was
unconstitutionally overbroad because it lacked specificity. Appellant’s Br. at
26.
Our review of a challenge to the denial of a suppression motion is limited
to “determining whether the [s]uppression [c]ourt’s factual findings are
supported by the record and whether the legal conclusions drawn from those
facts are correct.” Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010).
This Court is bound by the factual findings of the suppression court, but we
4 Moreover, even if Appellant had preserved this argument, we would conclude
it would fail to garner relief. It is well-settled that “[a]ppellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence.” Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000). An abuse of discretion is “where the judgment is manifestly unreasonable[,] where the law is not applied[,] or where the record shows that the action is a result of partiality, prejudice, bias[,] or ill will.” Id. (citation omitted). Notably, “[t]he weight of the evidence is exclusively for the finder of fact, who is free to believe all, none or some of the evidence and to determine the credibility of the witnesses.” Commonwealth v. Miller, 172 A.3d 632, 642 (Pa. Super. 2017) (citation omitted). Following our review, we discern no abuse of discretion in the trial court’s denial of Appellant’s post-sentence motion based on its finding that the weight of the evidence supports the verdict. Trial Ct. Op. at 35-36.
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are not bound by its legal conclusions, which we review de novo.
Commonwealth v. Briggs, 12 A.3d 291, 320-21 (Pa. 2011). We may review
only “the evidence presented at the suppression hearing when examining a
ruling on a pre-trial motion to suppress.” Commonwealth v. Harlan, 208
A.3d 497, 499 (Pa. Super. 2019).
It is well-established that “[n]o search warrant shall issue but upon
probable cause supported by one or more affidavits[.]” Pa.R.Crim.P. 203(B).
The issuing authority, in determining whether probable cause has been
established, may not consider any evidence outside the affidavits.” Id. In
Pennsylvania, the reviewing court “must limit [its] inquiry to the information
within the four corners of the affidavit submitted in support of probable
cause[.]” Harlan, 208 A.3d at 505 (citation omitted).
“Probable cause exists where, based upon a totality of the circumstances
set forth in the affidavit of probable cause, including the reliability and veracity
of hearsay statements included therein, there is a fair probability that. . .
evidence of a crime will be found in a particular place.” Commonwealth v.
Fletcher, 307 A.3d 742, 746 (Pa. Super. 2023) (citation omitted).
Furthermore, “the task of the issuing magistrate is simply to make a practical,
common-sense decision[.] And the duty of a reviewing court is simply to
ensure that the magistrate had a substantial basis for concluding that probable
cause existed.” Commonwealth v. Gray, 503 A.2d 921, 925 (Pa. 1985)
(internal brackets and ellipsis omitted) (quoting Illinois v. Gates, 462 U.S.
213, 238-39 (1983)).
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In reviewing the affidavit, the issuing magistrate may consider a police
officer’s experience as a relevant factor in determining probable cause.
Commonwealth v. Randolph, 151 A.3d 170, 183 (Pa. Super. 2016).
However, the officer must prove a “nexus between his experience and the
search, arrest, or seizure of evidence.” Id. (citation omitted). “The very
foundation of the Gates totality test is the recognition that all relevant factors
go into the probable cause mix.” Commonwealth v. Thompson, 985 A.2d
928, 935 (Pa. 2009).
With respect to the contents of a warrant, the Fourth Amendment to the
United States Constitution and Article I, Section 8 of the Pennsylvania
Constitution require that warrants “describe with particularity the items
sought[.]” Commonwealth v. Young, 287 A.3d 907, 919 (Pa. Super. 2022).
Our Court has interpreted Article I, Section 8 to require that a search warrant
describe the items sought “as specifically as is reasonably
possible.” Commonwealth v. Ani, 293 A.3d 704, 716 (Pa. Super.
2023) (citation omitted). The particularity requirement, thus, prohibits the
issuance of a search warrant “that is not particular enough and a warrant that
is overbroad.” Young, 287 A.3d at 919-20 (citations omitted).
In addressing an overbreadth challenge, “the natural starting place. . .is
to determine for what items probable cause existed.” Commonwealth v.
Green, 265 A.3d 541, 551 (Pa. 2021). Next, a court measures the
“sufficiency of the description” in the warrant “against those items for which
there was probable cause.” Id. at 550 (citation omitted). “Any unreasonable
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discrepancy between the items for which there was probable cause to search
and the description in the warrant requires suppression,” because the
“warrant is overbroad, ambiguous, or perhaps both.” Id. (citation and
brackets omitted). The above standard for an overbreadth challenge applies
equally to warrants seeking digital information on personal electronic devices,
such as cellphones. Id. at 553-54.
Appellant argues that the evidence referenced in the affidavit of
probable cause connecting him to the homicide was weak and failed to
establish a nexus between his cell phone and the crime. Appellant’s Br. at 26-
28. He further contends that Detective Mitchell’s statement in the affidavit
about his experience with criminals’ use of cell phones was not specific enough
to support a finding of probable cause in this case. Id. at 28-29. He also
argues that the search warrant was overbroad because it “failed to detail
exactly how probable cause existed” for each of the types of records sought.
Id. at 32. Finally, Appellant maintains that the Google location data was “fruit
of the poisonous tree” because the later search warrant was based on the cell
phone data obtained from the first search warrant that was not supported by
probable cause.5 Id. at 34.
5 Appellant also argues that the warrant was overbroad because it sought records from a month before the homicide and four months after the homicide. Appellant’s Br. at 29-33. However, our review of the record reveals that Appellant failed to raise this theory before the suppression court. It is well- (Footnote Continued Next Page)
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The trial court determined that there was probable cause to issue the
search warrant for Appellant’s cell phone data because DNA evidence and the
surveillance video linked Appellant to the homicide and, based on Detective
Mitchell’s training and experience, co-conspirators often plan crimes via cell
phone. Trial Ct. Op. at 39. The court also found that the search warrant was
not overbroad because it did not authorize an “unlimited and open ended”
search of the phone, such as for the content of text messages. Id. The court
concluded that the magistrate correctly determined that the search warrant
was supported by probable cause and, thus, the later warrant for location data
was not fruit of the poisonous tree. Id. at 39-40.
Following our review, we conclude that the suppression court properly
deferred to the magistrate’s probable cause determination because there was
a substantial basis for that finding. Specifically, M.G.’s statements indicated
that there were two suspects, surveillance video indicated that one of the
suspects discarded a hat, and DNA testing on the recovered hat indicated that
one suspect was likely Appellant. Accordingly, the detectives had probable
cause to believe Appellant was involved in the homicide, along with another
suspect. It was a “practical, common-sense determination” that call records
settled that “[i]ssues not raised in the lower court are waived[.]” Pa.R.A.P. 302(a). Accordingly, “appellate review of an order denying suppression is limited to examination of the precise basis under which suppression initially was sought; no new theories of relief may be considered on appeal.” Commonwealth v. Little, 903 A.2d 1269, 1272-73 (Pa. Super. 2006). Since Appellant failed to raise before this argument before the suppression court, it is waived.
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might indicate the identity of Appellant’s co-conspirator and that cell site data
might indicate whether Appellant was present at the scene. Gray, 503 A.2d
at 925. Moreover, we agree with the court that the warrant was specific and
limited in scope, not overbroad, and the location data was not “fruit of the
poisonous tree.” Appellant’s challenge to the denial of his suppression motion,
thus, garners no relief.
F.
In his next issue, Appellant asserts that the court abused its discretion
when it precluded any reference to Mr. Stevenson at trial. Appellant’s Br. at
34. Specifically, he asserts that if he had been able to reference Detective
Mitchell’s testimony from the first trial that Appellant’s cell phone traveled with
Mr. Stevenson’s cell phone, that evidence would “impeach the credibility of
Detective Mitchell and the investigation” at the retrial. Id. at 34-35. In other
words, Appellant’s argument implies that the fact that the jury at the first trial
acquitted Mr. Stevenson shows that Detective Mitchell’s testimony was not
credible, and the Commonwealth’s investigation was severely flawed so the
jury in the second trial would have acquitted Appellant.
We review evidentiary rulings for an abuse of discretion.
Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014). As
noted above, an abuse of discretion is “the overriding or misapplication of the
law, or the exercise of judgment that is manifestly unreasonable, or the result
of bias, prejudice, ill-will[,] or partiality, as shown by the evidence of
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record.” Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super.
2005) (citations omitted).
Our Supreme Court has held that “a person accused of crime may not
introduce evidence of the acquittal of another person charged in connection
with the same episode to create an impression before the jury that the
defendant is equally innocent.” Commonwealth v. Meredith, 425 A.2d 334,
337 (Pa. 1981). In Meredith, the appellant presented the testimony of a co-
conspirator who had been acquitted of crimes charged in connection with the
same murder for which the appellant was on trial. Id. at 337. Following her
testimony, the Commonwealth introduced evidence of the witness’s
involvement and arrest. Id. at 336-37. The trial court did not, however,
permit the appellant to introduce evidence that she had been acquitted. Id.
Our Supreme Court ultimately determined that evidence of the co-defendant’s
acquittal was admissible “for the limited purpose of restoring the value of the
defense witness’s testimony.” Id. at 339.
Our Court later emphasized that Meredith’s “holding represents a
narrow exception to the general rule that evidence of the verdict in a co-
conspirator’s case is inadmissible. Commonwealth v. Rink, 574 A.2d 1078,
1082 (Pa. Super. 1990); see also Commonwealth v. Dennis, 460 A.2d 255,
258 (Pa. Super 1983) (“[E]vidence of [co-conspirator’s] acquittal was offered
generally, as proof of appellant’s innocence, and thus was properly excluded
as irrelevant.”). In holding that evidence of a co-conspirator’s acquittal is
irrelevant to a defendant’s guilt or innocence, we have noted that different
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verdicts in co-conspirators’ trials may “have been due to a variety of []
circumstances, including a difference in the proof offered at trial.” Dennis,
460 A.2d at 258 (citation omitted).
Here, Appellant cites Meredith for the proposition that evidence of a
co-defendant’s acquittal is admissible for purposes other than “a mere bald
argument” that a defendant is not guilty because a co-defendant was
acquitted. Appellant’s Br. at 34-35. (citing Meredith, 425 A.2d at 338).
Appellant argues that although the trial court “characteriz[ed] its decision as
banning reference to co-defendant Stevens’s [sic] acquittal[,]” the court
actually banned all references to Mr. Stevenson, which “curtailed Appellant’s
right to confront and cross-examine witnesses.” Id. at 36.
In addressing this challenge, the trial court observed that Mr.
Stevenson’s acquittal had no relevance to Appellant’s guilt and that any
reference to his acquittal would have allowed the jury to impermissibly infer
that Appellant was not guilty because Mr. Stevenson was acquitted. Trial Ct.
Op. at 40-41.
Appellant’s argument fails to convince this Court that the trial court
abused its discretion when it precluded any reference to Mr. Stevenson. First,
Meredith is distinguishable. Here, Mr. Stevenson did not testify, and
Appellant sought to use Mr. Stevenson’s acquittal for more than the limited
rehabilitation purpose permitted in Meredith. Accordingly, Meredith
provides no support for Appellant’s argument.
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In addition, Mr. Stevenson’s acquittal does not indicate a specific finding
that the first jury rejected Detective Mitchell’s testimony that Mr. Stevenson’s
and Appellant’s phones were together around the time of the homicide. Mr.
Stevenson’s acquittal is likewise irrelevant to the credibility of Detective
Mitchell’s testimony at the retrial about the location of Appellant’s cell phone.
Therefore, the trial court did not abuse its discretion in precluding Appellant
from impeaching Detective Mitchell with reference to the previous trial and
Mr. Stevenson’s acquittal. This claim merits no relief.
G.
In his final issue, Appellant argues that the court erred in admitting
Detective Wood’s testimony that Appellant did not engage in any drug-related
communications on social media in the month after the homicide. Appellant’s
Br. at 36. He contends this evidence was impermissible pursuant to Pa.R.E.
404(b) as evidence of prior bad acts. Id.
It is axiomatic that “[o]nly relevant evidence is admissible at trial.”
Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015) (citing Pa.R.E.
402). Evidence is relevant if it tends to make a material fact more or less
probable than it would be without the evidence. Pa.R.E. 401. However, even
if evidence is relevant, it may be excluded “if its probative value is outweighed
by ... unfair prejudice, confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
In addition, Pennsylvania Rule of Evidence 404(b) prohibits evidence of
a defendant’s prior bad acts “to prove a person’s character” or demonstrate
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“that on a particular occasion the person acted in accordance with the
character.” Pa.R.E. 404(b)(1). However, the Rule also provides that prior
bad acts evidence “may be admissible for another purpose, such as proving
motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” Id. at 404(b)(2).
Appellant claims that the court abused its discretion when it permitted
Detective Wood to testify that Appellant did not engage in drug-related
communications on social media in the month after the homicide. Appellant’s
Br. at 37. Specifically, he argues that the testimony was irrelevant to motive,
which was the Commonwealth’s “proffered use” for evidence about his prior
drug use and was not probative of whether he committed the homicide. Id.
at 36-37.6
In its opinion, the trial court determined that evidence of Appellant’s
drug use prior to the homicide was relevant to establish motive: it
6 Appellant also argues for the first time that this evidence was more prejudicial than probative, was speculative, and was improper given the “imprimatur of expertise” by Detective Wood’s testimony. Appellant’s Br. at 37-39. However, Appellant failed to raise any of these claims when objecting to the admission of this evidence at the hearing on the motion in limine and instead, only challenged relevance. As noted above, “[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). This requirement bars an appellant from raising “a new and different theory of relief” for the first time on appeal. Commonwealth v. York, 465 A.2d 1028, 1032 (Pa. Super. 1983). Accordingly, these arguments are waived.
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demonstrated that Appellant knew that Victim possessed drugs and money,
and “indicated a potential addiction[,] which would supply motivation for
[Appellant] to acquire these pills by force[.]” Trial Ct. Op. at 43. The court
concluded that “evidence of drug use and purchases from [Victim] contributed
to the complete story of the case[.]” Id.
Although the trial court only addressed the admissibility of evidence of
Appellant’s drug use through the date of the murder, we discern no abuse of
discretion in its decision to permit Detective Wood to testify that Appellant did
not engage in any drug-related conversations in the month after the homicide.
This evidence was relevant to Appellant’s motive to commit the crimes and
supports the Commonwealth’s theory that Appellant committed the crimes to
obtain drugs that he could use or sell in the future so he would not have to
seek them elsewhere. Moreover, the court only permitted the Commonwealth
to ask one yes-or-no question to elicit this testimony from Detective Wood.
N.T. Pretrial Conference, 8/29/22, at 23. The trial court’s decision to allow
this testimony was not manifestly unreasonable, or otherwise an abuse of
discretion. This claim merits no relief.
H.
We conclude that all issues Appellant raises either lack merit or are
waived. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Date: 12/18/2024
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