Com. v. Wayne, D.

• Court: Superior Court of Pennsylvania
• Decided: March 17, 2020
• Docket: 146 WDA 2019
• Status: Unpublished

Opinion

J-S75004-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

DION ELIJAH WAYNE

Appellant No. 146 WDA 2019

Appeal from the Judgment of Sentence Entered December 21, 2018 In the Court of Common Pleas of Erie County Criminal Division at No.: CP-25-CR-0000697-2018

BEFORE: STABILE, KUNSELMAN, and PELLEGRINI,* JJ.

MEMORANDUM BY STABILE, J.: FILED MARCH 17, 2020

Appellant Dion Elijah Wayne appeals from the December 21, 2018

judgment of sentence entered in the Court of Common Pleas of Erie County

(“trial court”), following his jury convictions for possession with intent to

deliver (heroin and/or fentanyl), tampering with or fabricating physical

evidence, and criminal use of communication facility.1 Upon review, we affirm.

The facts and procedural history of this case are undisputed. As aptly

summarized by the trial court:

On January 5, 2018, Adam Yurkewicz’s grandmother found Yurkewicz unconscious in the bathroom of her residence at 815 Michigan Avenue, Erie, Pennsylvania. The grandmother telephoned 911 and the Millcreek Township Police were dispatched to the residence. Detective Ryan Presner [who was employed as a patrol officer at the time] was the first police officer to arrive at ____________________________________________

* Retired Senior Judge assigned to the Superior Court. 1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 4910(1) and 7512(a), respectively. J-S75004-19

the scene. Upon arrival, Detective Pruner observed Yurkewicz on the floor. Yurkewicz bad a “bluish-purple tint” and was surrounded by firefighters who were checking for a pulse. Presner also observed a partially loaded syringe in the bathroom sink. Yurkewicz was placed in an ambulance where Presner went through Yurkewicz’s pockets and recovered a cell phone and a pack of cigarettes which contained a folded-up piece of paper holding a white, chalky substance. Yurkewicz was transported to UPMC Hamot Hospital where he died early the following morning, on January 6, 2018. It was determined Yurkewicz died from an overdose of fentanyl. Presner turned over Yurkewicz’s cell phone to Detectives Hardner and Morelli of the Special Investigations Unit of the Millcreek Police Department when they arrived at the scene. Detective Hardner examined the call log and text messages on the cell phone to determine whether a transaction involving drugs had occurred. He read text messages exchanged during the morning of January 5, 2018 between Yurkewicz’s cell phone and the telephone number “814-449-9983” (hereinafter 9983). Detective Hardner found 9983 was entered in Yurkewicz’s contact information under the name “Louis”. Based upon the content of these messages and Detective Hardner’s experience in narcotics investigations, he determined 9983 was a “phone number of interest” with regard to the investigation surrounding Yurkewicz’s death. Detective Anne Styn extracted contents of the cell phone including the text messages, call logs, photographs, a web history, Facebook and Snapchat accounts associated with Yurkewicz, and a Gmail account with the email address Yurks42589. At trial, the Commonwealth presented testimony from Yurkewicz’s fiancée, Kayla Turk. Turk was familiar with Yurkewicz’s cell phone and testified she was present when Yurkewicz was sending text messages from his cell phone the morning of January 5, 2018. Turk also identified Commonwealth Exhibit 18 as a list of personal text messages between herself and Yurkewicz on January 5, 2018. The Commonwealth’s witness Marlene Yurkewicz, the decedent’s grandmother, testified as to calls she made to Yurkewicz’s cell phone on January 5, 2018, that had been recovered in Yurkewicz’s cell phone records. At trial, Detective Hardner testified concerning Commonwealth Exhibit 13, a transcription of text messaging between Yurkewicz’s cell phone and 9983, the aforementioned number of interest, from the morning of January 5, 2018. Detective Hardner testified these texts were highly indicative of drug dealing. Detective Hardner testified about the content of the text messages as follows: MR. SELLERS: All right. Again, Detective, tell the jury which of these messages come from Adam Yurkewicz and which of them go to the number identified as Louis. HARDNER: Adam Yurkewicz is the blue messages, and the Louis phone number is the one in yellow.

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MR. SELLERS: And can you read them for us? HARDNER: Yes. Adam says, yo. The guy responds, sup. He says, WYA, where you at. He says, over east. He says, on my way. MR. SELLERS: Next slide. HARDNER: What you needed? He responds, 60. Where should I go, then question mark. Bout to be on the east. He responds, 25 German. MR. SELLERS: Next slide. HARDNER: He says, K. Be like 10 to 15. How much for the half. He says, 80 bro. Then, K.

MR. SELLERS: Next slide. HARDNER: Then, give me that. He says, yup. He says, bout to pull up. He says, okay. Here. Then, 24 German between Parade. .... MR. SELLERS: Can you read that for us? HARDNER: K. Here. And then, you good bro. Pings to cell phone towers from Yurkewicz’s cell phone placed Yurkewicz in the area of 24th and German Streets at approximately the same time he received the text messages from 9983 directing him to meet there for the transaction. During the afternoon of January 5, 2018, Detective Hardner texted 9983 from a random telephone number generated by a special application on Detective Hardner’s cell phone in an effort to set up a drug transaction with the person who was using the cell phone associated with 9983. Detective Hardner received a telephone call from a male calling from 9983. Further texting between Detective Hardner and 9983 ensued but Detective Hardner was unsuccessful in setting up a drug transaction. On January 6, 2018, after learning Yurkewicz died, Detective Hardner used Yurkewicz’s cell phone in another attempt to reach 9983. The content of the text messaging of January 6, 2018 between Detective Hardner, from Yurkewicz’s cell phone, and the person who was using the cell phone associated with 9983 was introduced into evidence as Commonwealth Exhibit 12. Detective Hardner testified concerning these texts as follows: MR. SELLERS: Okay. Can you read for the jury these text message conversations, and indicate which ones are from you and which ones are from the other number?

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HARDNER: I’m sending the blue messages, and the messages on the other end are the yellow. HARDNER: I texted, yo. He responded, sup. I said, got 100 just waiting for a ride. He said, okay bro. I said, ready where should I go. MR. SELLERS: All right. Next slide. HARDNER: He said, okay what you got bro. I said 100. And then when I didn’t have a response, I sent a question mark. And then he said, meet me on 24. I said, K, and then, pulling up. MR. SELLERS: Next slide. HARDNER: Then I said, I’m in my step-mom’s blue truck.

Consistent with the above texts, Detective Hardner drove to East 24th Street between German and Parade Streets in a blue undercover vehicle and pulled over to the side of the road. Several back-up officers were stationed in vehicles nearby. A white Audi was observed traveling west along East 24th Street in the same block where Detective Hardner was parked. The Audi pulled over and Appellant, the front-seat passenger, exited the Audi and entered a residence at 344 East 24th Street, later learned to be Appellant’s mother’s residence. [Appellant resided next door at 348 East 24th Street.] Appellant returned to the Audi a few minutes later and got into the front passenger seat. The vehicle operator drove the Audi further west along 24th Street, passing Detective Hardner’s blue vehicle, and pulled over a few car-lengths ahead of Detective Hardner’s vehicle. At this time, Detective Hardner received a telephone call on Yurkewicz’s cell phone from 9983. The male caller instructed Detective Hardner to exit the vehicle and come over to the “white car”. Detective Hardner notified the back-up officers who then approached the white Audi.

From the front of the Audi, Detective Fiorelli, one of the back-up officers, observed through the front windshield Appellant leaning forward in the passenger seat “making furtive movements with his arms towards the floorboards of the front passenger’s seat.” Appellant and the driver, Javar Beason, were arrested. Detective Fiorelli observed a white powdery substance on the right leg of Appellant’s black sweatpants, which Appellant kept trying to brush off. Detective Fiorelli observed on the floor mat on the front passenger side a chunky substance with powder residue on top. The substances on the floor mat were collected for analysis which revealed the substances contained heroin and fentanyl. During the search of the vehicle, Detective Fiorelli located a folded-up piece of white paper, torn from a larger piece of paper, which had been folded over several times with creases in it. Detective Fiorelli testified this was a very common way of packaging heroin or fentanyl. Detective Fiorelli recovered an iPhone in a red and black

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case from a cupholder in the center console between the driver’s and passenger’s seats. During the search of Appellant, the police found a wallet containing $65.00 in U.S. currency, Appellant’s ID, a cell phone, and another $1,020.00 in U.S. currency “in a stack.” During the search of Beason, the police recovered $70.00 and Beason’s cellphone. The items recovered during the searches were brought to the police station. There, Detective Hardner called 9983 from his personal cell phone whereupon the iPhone in the red and black case rang. Detective Hardner determined this iPhone was the cell phone associated with 9983, the same number which Detective Hardner had engaged in communication with from Detective Hardner’s cell phone on January 5, 2018 and from Yurkewicz’s cell phone on January 6, 2018. At trial, the Commonwealth witness Detective Styn testified regarding Verizon call and text records from 9983. Detective Styn confirmed the report from Verizon included text message exchanges between 9983 and unidentified third parties on January 5 and January 6, 2019. Detective Fiorelli testified from Verizon records as to the contents of these text message exchanges. The texts described other drug transactions with 9983, some set up to occur in the vicinity of 24th and German Streets. The texts clearly contained references to the use and exchange of narcotics. Commonwealth witness Detective Benacci, an expert witness in drug transactions and sales, testified the texts between 9983 and third parties and between 9983 and Yurkewicz were evidence of drug dealing. Detective Fiorelli also testified about a text exchange of a personal nature between 9983 and a third party during the relevant timeframe. In the texts, the third party addressed Appellant by name, “Dion,” and 9983 responded “sup.”

Trial Court Opinion, 4/8/19 at 1-8 (footnotes and record citations omitted).

Appellant was arrested and charged with drug delivery resulting in death,

PWID (fentanyl), possession of drug paraphernalia, possession

(heroin/fentanyl), tampering with or fabricating physical evidence, PWID

(heroin and/or fentanyl) and criminal use of communication facility. 2

Following a multi-day trial, a jury found Appellant guilty of only PWID (heroin ____________________________________________

218 Pa.C.S.A. § 2506, 35 P.S. § 780-113(a)(30) and (16), 18 Pa.C.S.A. § 4910(1), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 7512(a), respectively.

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and/or fentanyl), tampering with or fabricating physical evidence, and criminal

use of communication facility. On December 21, 2018, the trial court

sentenced Appellant to an aggregate term of 50 to 107 months and 15 days

in prison. Appellant filed post-sentence motions, which the trial court denied

on January 2, 2019. Appellant timely appealed. On February 4, 2019, the

trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement within 30

days. Appellant complied.3 In response, the trial court issued a detailed

Pa.R.A.P. 1925(a) opinion. On June 6, 2019, upon Appellant’s application, we

remanded this case to the trial court to permit Appellant to amend his Rule

1925(b) statement. In his amended Rule 1925(b) statement, Appellant

challenged the sufficiency of the evidence underlying his convictions. On

August 15, 2019, the trial court issued a supplemental Rule 1925(a) opinion

addressing Appellant’s sufficiency claims.

On appeal, Appellant presents three issues for our review.

[I.] Whether the trial court committed an abuse of discretion and/or error of law in admitting the text messages received by and sent from the cell phone recovered from the white Audi in violation of Commonwealth v. Koch[, 106 A.3d 705 (Pa. 2014)] as they were not properly authenticated?[4]

____________________________________________

3He filed his Rule 1925(b) statement on February 28, 2019, well within the 30-day deadline established by the trial court’s February 4, 2019 order. 4 We have explained: Our standard of review over evidentiary rulings requires us to determine whether the trial court abused its discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of

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[II.] Whether the Commonwealth failed to present sufficient evidence to find Appellant guilty beyond a reasonable doubt of PWID, tampering with/fabricating physical evidence, and criminal use of communication facility?[5] [III.] Whether Appellant’s claims on appeal should be dismissed/quashed due to the fact that Appellant filed an untimely 1925(b) statement?[6]

Appellant’s Brief at 3 (unnecessary capitalizations omitted).

manifest unreasonableness, or partiality, prejudice, bias, or ill- will, or such lack of support so as to be clearly erroneous. Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa. Super. 2007) (internal citations omitted), appeal denied, 955 A.2d 356 (Pa. 2008). 5“A claim challenging the sufficiency of the evidence is a question of law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014). 6As noted in the text, Appellant filed a timely Rule 1925(b) statement and, as a result, we need not decide his third issue on appeal.

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After careful review of the record and the relevant case law, we conclude

that the trial court accurately and thoroughly addressed the merits of

Appellant’s issues on appeal. See Trial Court Opinion, 4/8/19, at 10-21;

Supplemental Opinion, 8/15/19 at 2-8. With respect to Appellant’s first issue,

we conclude that the trial court did not abuse its discretion in overruling

Appellant’s authentication challenge7 and admitting into evidence the text

messages recovered from the cell phone in the white Audi. As the trial court

concluded:

There was sufficient testimony from witnesses with knowledge demonstrating the cell phone was what it was purported to be – Appellant’s cell phone. Detective Fiorelli testified that the iPhone in the red and black case was recovered next to Appellant’s seat in the vehicle, and the iPhone was connected to the number 9983. There was significant contextual clues and circumstantial evidence corroborating that Appellant was the author of the text messages at issue. This included: the texts between Yurkewicz and 9983 . . .; the contents of texts between third parties and 9983 using slang terms consistent with drug dealings, where 9983 set up the location for the transaction in areas near Appellant’s home; and third party texts identifying Appellant by name to which he responded affirmatively. Most significantly, at the time and place of the undercover drug deal between the author of texts from 9983 and Detective Hardner, Appellant arrived in a white Audi in possession of heroin and fentanyl.

Trial Court Opinion, 4/8/19 at 14. Relating to Appellant’s sufficiency

challenges, we agree with the trial court’s conclusion that, based upon the

record evidence viewed in a light most favorable to the Commonwealth as the

verdict winner, the Commonwealth proved beyond a reasonable doubt that

Appellant committed PWID, tampering with or fabricating physical evidence,

7“Authentication generally entails a relatively low burden of proof.” Koch, 106 A.3d at 713.

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and criminal use of communication facility. Accordingly, we affirm the trial

court’s December 21, 2018 judgment of sentence. We further direct that a

copy of the trial court’s April 8, 2019 and August 15, 2019 opinions be

attached to any future filings in this case.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 3/17/2020

-9- Circulated 02/27/2020 02:04 PM

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This matter is before the Court on Appellant's 192S(b) Concise Statement of Matters

Complained of on Appeal. For the reasons set forth below, the judgment of scntmce should be

affirmed.1

FACTUAL BACKGROUND

On January S, 2018, Adam Yurkewicz's grandmother found Yurkewicz UDCODSCious in

the bathroom of her residence at 815 Michigan Avenue, Erie, Pennsylvania. Tramcript of

Proceedings, Day 2, November 14, 2018 (l'r. Day 2).pp. 70-77. The gnmdmotber telephoned

911 and the Millcreek Township Police were dispatched to the residence. Tran.tcrlpt of 2 Proceedings, Day 1, November 13, 2018 (l'r. Day 1) pp. 117-120. Detective Ryan PJeSDer

was the first police officer to arrive at the scene. Upon arrival, Detective Prcsner observed

Yurkewicz on the floor. Yurkewicz had a ''bluish-purple tint" and was surrounded by

firefighters who were checking for a pulse. Tr. Day 1, p. 118. Presner also obsened a partially

loaded syringe in the bathroom sink. Tr. Day 1, pp. 120-127.

1 The Honorable William R. Cunningham presided at the jury bia1, sentmced Appellant, IDd issued 1be 1925(1,) Order. Judge Cunningham also addressed the post-sentence motion. Due to lhe recent remwae:m or Judee Cunningham, this matter was reassigned to the undersigned for pieparmoo. oflhe 192S(a) Opinion. 2 Detective Presner was employed by the Millcreek Township Police Depmtment as a patrol officer ll lhe time. a. Discovery ofAdam Yurkewic:.'s cell pl,one-Janary S, 2011

Yurkewicz was placed in an ambulance where Presner went through Yurkewicz's

pockets and recovered a cell phone and a pack of cigarettes which contained a folded-up piece of

paper holding a white, chalky substance. Tr. Day l, pp. 128-131. Yurtewicz was tnmspolted to

UPMC Hamot Hospital where he died early the following mofflin& on January 6, 2018. It was

determined Yurkewiczdiedfromanoverdoseoffentanyl. See Tr. Day l,pp. 150-181.

Presner turned over Yurkewicz's cell phone to Detectives Hanlner and Fion:lli of the

Special Investigations Unit of the Millcreek Police Department when they arrived at the scene.

Tr. Day 1, pp. 130-131. Detective Hardner examined the call log and text messages on lhc ccll

phone to determine whether a transaction involving drugs had occurred. Tr. Day l, p. 184. He

read text messages exchanged during the morning of January 5, 2018 between Yurkcwicz's cell

phone and the telephone number "814-449-9983" (hereinafter 9983). Tr. Day l, pp. 184-185.

Detective Hardner found 9983 was entered in Yurkewicz's contact information under the name

"Louis". Tr. Day 1, p. 232. Based upon the content of these messages and Dcta:ti� Hardner's

experience in narcotics investigations, he determined 9983 was a "phone nmnber of intaat'

with regard to the investigation surrounding Ymkewicz's death. Detective Anne Styn exlnlded

contents of the cell phone including the text messages, call logs, photographs, a web history,

Facebook and Snapchat accounts associated with Yurkewicz, and a Gmail account with the email

address Yurks42589. Tr. Day 2, p. 131.

b. Communications sentfrom and received on Ylll'UWicz'.s cdJ pl,ow - J.._,, S, 2111

At trial, the Commonwealth presented testimony from Yurkewicz's fiancce, Kayla Turk.

Tr. Day 2, pp. 106-119. Turk was familiar with Yurtewicz's cell phone and testified she was

present when Yurkewicz was sending text messages from his cell phone the morning of Janmry

2 5, 2018. Tr. Day 2, pp. 111-112; 116-117. Turk also identified Commonwealth Exhibit 18 as a

list of personal text messages between herself and Yurlcewicz on January 5, 2018. Tr. Day 2, pp.

111-114. The Commonwealth's witness Marlene Yurkewicz, the decedent's gnmdmotbcr,

testified as to calls she made to Yurkewicz's cell phone on January 5, 2018, that had been

recovered in Yurkewicz's cell phone records. Tr. Day 2, pp. 75-76; 134.

At trial, Detective Hardner testified concerning Commonwealth Exhibit 13, a

transcription of text messaging between Yurkewicz's cell phone and 9983, the aforanmtioncd

number of interest, from the morning of January 5, 2018. Tr. Day 1, p. 232. Deteclive Hardncr

testified these texts were highly indicative of drug dealing. Detective Hanlner tcstificd about lhc

content of the text messages as follows:

MR. SELLERS: All right. Again, Detective, tell the jury which of these messages come from Adam Yurkewicz and.which of them go to the number identified as Louis.

HARDNER: Adam Yurkewicz is the blue messages, and the Louis phone number is the one in yellow.

MR. SELLERS: And can you read them for us?

HARDNER: Yes. Adam says, yo. The guy responds, sup. He says, WY� where you at. He says, over east. He say� on my way.

MR. SELLERS: Next slide.

HARDNER: What you needed? He responds, 60. Where should I go, then question mark. Bout to be on the east. He responds, 25 German.

HARDNER: He says, K. Be like 10 to l 5. How much for the half. He says, 80 bro. Then, K.

HARDNER: Then, give me that. He says, yup. He says, bout to pull up. He says, okay. Here. Then, 24 German between Parade.

3 MR. SELLERS: Can you read that for us?

HARDNER: K. Here. And then, you good bro.

Tr. Day 1, pp. 232-234.

Pings to cell phone towers from Yurkewicz's cell phone placed Yurkewicz in the ma of

24th and German Streets at approximately the same time he received the text messages 6om 9983

directing him to meet there for the transaction. Tr. Day 1, pp. 232-234; Tr. Day 2, pp. 226-227.

c. Communications between Detective Hartbtn's cdl pl,oM (fro,,, 11 ,.....,,, generated number) and "9983" - January 5, 2018

During the afternoon of January 5, 2018, Detective Hanmer texted 9983 from a random

telephone number generated by a special application on Detective Hardner's cell phone in an

effort to set up a drug transaction with the person who was using the cell phone associa1cd with

9983. Tr. Day l, pp. 185-188. Detective Hardner received a telephone call from a male caDing

from 9983. Further texting between Detective Hardner and 9983 ensued but· Detective Hamner

was unsuccessful in setting up a drug transaction.

ti. Communications between Yurkewicz's all pl,OM (lltilizd by Ddtdhe Har,Jner) and "9983" - January 6, 2018 On January 6, 2018, after learning Yurkewicz died, Detective Hanlner used Ywkewicz:r

cell phone in another attempt to reach 9983. Tr. Day l, pp. 189-191. The content of the text

messaging of January 6, 2018 between Detective Hardner, from Yurkewicz9s cell phone, and the

person who was using the cell phone associated with 9983 was introduced into evidence as

4 Commonwealth Exhibit 12. Tr. Day 1, p. 201. Detective Hardner testified cona:ming 1hcsc

texts as follows:

MR. SELLERS: Okay. Can you read for the jury these text message conversations, and indicate which ones are from you and which ones an: from the other number?

HARDNER: I'm sending the blue messages, and the messages on the other end are the yellow.

HARDNER: I texted, yo. He responded, sup. I said, got 100 just waibng for a ride. He said, okay bro. I said, ready where should I go.

MR. SELLERS: All right. Next slide.

HARDNER: He said, okay what you got bro. I said l 00. And then when I didn't have a response, I sent a question mark. And then he said, meet me on 24. I said, K, and then, pulling up.

HARDNER: Then I said, I'm in my step-mom's blue truck.

Tr. Day 1, pp. 201-202.

e. Recovery of the cell phone associated with tl,e •lllllber "fflJ" - Ja,,.,., 6, 2018

Consistent with the above texts, Detective Hamner drove to East 24111 Street bctwi,ea

German and Parade Streets in a blue undercover vehicle and pulled over to the side of the road.

Tr. Day 1, pp. 191-197. Several back-up officers were stationed in vehicles nearby. Tr. Day J, p.

194. A white Audi was observed traveling west along East 24111 Street in the same block where

Detective Hardner was parked. Tr. Day 1, pp. 195-196; Tr. Day 2, pp. 13-14; 151-152. The

Audi pulled over and Appellant, the front-seat passenger, exited the Audi and enten:d a ICSidmce

at 344 East 24th Street, later learned to be Appellant's mother's residence.3 Appelhmt retumc:d to

3 The police later learned Appellant resided next door to his mother at 348 East 246 S1reet with his pmdmodrcr. n-. Day 2, pp. 246-247.

5 the Audi a few minutes later and got into the front passenger seat. The vehicle opcndur drove

the Audi further west along 24th Street, passing Detective Hardner's blue vehicle, and pulled

over a few car-lengths ahead of Detective Hardner's vehicle. Tr. Day J, p. 195. At this�

Detective Hardner received a telephone call on Yurkewicz's cell phone tiom 9983. Tr. Day I, p.

196. The male caller instructed Detective Hardner to exit the vehicle and come over to the

''white car". Tr. Day 2, pp. 189-197. Detective Hardner notified the back-up officers who then

approached the white Audi.

From the front of the Audi, Detective Fiorelli, one of the back-up offi� observed

through the front windshield Appellant leaning forward in the passenger seat "making furtive

movements with his arms towards the floorboards of the front passenger's seat." Tr. Day 2. p.

153-154. Appellant and the driver, Javar Beason, were arrested. Detective Fiorelli observed a

white powdery substance on the right leg of Appellant's black sweatpants, which Appellant kept

trying to brush off. Tr. Day 2, p. 156. Detective Fiorelli observed on the floor mat on the ftont

passenger side a chunky substance with powder residue on top. The subscances on the floor mat

were collected for analysis which revealed the substances contained heroin and fmtanyl. Tr. Day

2, pp. 233-235. During the search of the vehicle, Detective Fiorelli located a folded-up piece of

white paper, tom from a larger piece of paper, which bad been folded over several times with

creases in it. Detective Fiorelli testified this was a very common way of p,ckaging heroin or

fentanyl. Tr. Day 2, pp. 15 7-161. Detective Fiorelli recovered an iPhone in a red and black case

from a cupholder in the center console between the driver's and passenger's seats. Tr. Day 2, pp.

162-164. During the search of Appellant, the police found a wallet containing S6S.OO in U.S.

currency, Appellant's ID, a cell phone, and another $1,020.00 in U.S. cunmcy "in a stack." Tr.

6 Day 2, pp. 164-166. During the search of Beason, the police recovered $70.00 and Bcason's

cellphone. Tr. Day 2, pp.39-40; 164.

The items recovered during the searches were brought to the police station.. There,

Detective Hardner called 9983 from his personal cell phone whereupon the iPbone in the red and

black case rang. Tr. Day 2, pp. 166-167. Detective Hardner detennined this iPbone was the cell

phone associated with 9983, the same number which Detective Hanlner bad c:ngagt"J1 in

communication with from Detective Hardner's cell phone on January S, 2018 and from

Yurkewicz's cell phone on January 6, 2018. Tr. Day J, p. 167.

f. Communications between "9983" and 1111ukntijkd tJ,irtJ partia - Ja_,, S and January 6, 2018

At trial, the Commonwealth witness Detective Styn testified iegarding Vcrimn call and

text records from 9983. Tr. Day 2, pp. 121-129. Detective Styn con.fumed the ieport from

Verizon included text message exchanges between 9983 and unidentified third parties on January

5 and January 6, 2019.

Detective Fiorelli testified from Verizon records as to the contents of dlCSe text message

exchanges. Tr. Day 2, pp. 168-186. The texts described other drug transactions with 9983, some

set up to occur in the vicinity of 24th and German Streets. The tex1s clearly contained references 4 to the use and exchange of narcotics. Commonwealth witness Detective Bmacci, an expert

witness in drug transactions and sales, testified the texts between 9983 and thud parties and

between 9983 and Yurkewicz were evidence of drug dealing. 7r. Day 2, pp. 251-293. Dcteclive

Fiorelli also testified about a text exchange of a personal nature between 9983 and a dmd party

4 See Tr. Day 2, pp. 178-179 and Commonwealth Exhibit 28; Tr. Day 2, pp. 183-186 and Coio11iOll"Clbb Exhibit 30

7 during the relevant timeframe. In the texts, the third party addressed Appellant by name, "Dion,"

and 9983 responded "sup." 5

PROCEDURAL BACKGROUND

Following his arrest, Appellant was charged · with Drug Delivery Resulting in �

Possession With Intent to Deliver (fentanyl), Possession of Drug Paraphcmalia, Possession

(heroin and/or fentanyl), Tampering With or Fabricating Physical Evidence, Possession With

Intent to Deliver (heroin and/or fentanyl) and Criminal Use of Communication Facility. 6

On November 15, 2018, following a three-day jwy trial, Appellant was convicted of:

Tampering With or Fabricating Physical Evidence, Possession With Intent to Deliver (heroin

and/or fentanyl) and Criminal Use of Communication Facility.7

On December 21, 2018, Appellant was sentenced to an aggregate period of SO - 107

months and 15 days of incarceration as follows:

Count Five: Tampering With or Fabricating Physical Evidence - 8 months to 23 months and 15 days of incarceration, consecutive to Count Seven.

Count Six: Possession With Intent to Deliver (heroin and/or fentanyl) - 21 months to 54 months of incarceration, consecutive to any other sentr:nce currently being served.

Count Seven: Criminal Use of Communication Facility- IS months to 30 months of incarceration, consecutive to Count Six.

On December 27, 2018, Appellant filed a post-sentence motion and a Petition to

Withdraw as Counsel. The Court denied the post-sentence motion on Janumy 2, 2019. On

January 23, 2019, Appellant filed a Notice of Appeal. On February 4, 2019, the Court dirc:ctcd

5 See Tr. Day 2, pp. 172-175 and Commonwealth Exhibit 27 6 18 Pa.C.S.A. § 2506; 35 Pa.C.S.A. §780-113(a)(30); 3S Pa.C.S.A. §780-113(aX16); 18 Pa.C.S.A. §4910(1); 35 Pa.C.S.A. §780-113(a)(30); and 18 Pa.C.S.A. § 7S12(a), respectively. 7 18 Pa.C.S.A. §4910(1); 35 Pa.C.S.A. §780-113(a)(30); and 18 Pa.C.S.A. § 7S12(a), aespeaively.

8 Appellant to file a l 925(b) Statement of Matters Complained of on Appeal within 21 days.

Appellant filed a Statement of Matters Complained of on Appeal on February 28, 2019.1

Concurrently, Appellant's counsel filed another Petition to Withdraw a Counsel. On March 11,

2019, the Court granted the Petition to Withdraw and directed Appellant to oblain new legal

counsel or act as his own counsel for any future proceedings.

Paraphrased, Appellant's Statement of Matters Complained of OD Appeal identifies the

following issues:

1. Whether evidentiary error occurred in:

a) admitting into evidence text messages sent to and from the cell phone of decedent, Adam Yurkewicz;

b) admitting into evidence text messages sent to and &om the cell phoneAppellantused;and

c) "refusing to admit Defendant's 'Exhibit B' text messages" &om a third party to decedent's cell phone.

2. Whether there was sufficient evidence for the jury to convict at Count Seven, Criminal Use of Communication Facility.

3. Whether the Court "failed to hold a proper bearing on the Defendant's Motion in Limine."

DISCUSSION

I. Untimely 1925(b) Statement

Appellant has waived review of the appellate claims as the I 925(b) Statanc:nt was

untimely. The Court issued a 1925(b) Order on February 4, 2019, directing Appellant to file and

serve a 1925(b) Concise Statement of Matters Complained of on Appeal within 21 days. This

was not done. Appellant's Statement of Matters Complained of OD Appeal was not filed IDdil

February 28, 2019. The claims are waived. 8 The 1925(b) Statement was due for filing on Monday, February 25, 2019.

9 Under the Pennsylvania Rules of Appellate Procedure, a Judge is permitted to grant an

extension of time to file a Statement "(u]pon application of the appellant and for good cause

shown". Pa.R.A.P. 1925(b)(2). To preserve claims for appellate review, Appellants must comply

whenever the trial court orders them to file a Statement of Matters Complained of on Appeal

pursuant to Rule 1925 or the result is automatic waiver. See Commonwealth v. Lord. 719 A.2d

306, 309 (Pa. 1998); also Commonwealth v. Castillo. 888 A.2d 775 (Pa. 2005). Here, the 192S(b)

was untimely and no request to extend the time for filing was submitted to the Court. Tberefift,

the issues raised in Appellant's Statement of Matters Complained of on Appeal are waived.

Pa.R.A.P. 1925(b); Hess v. Fox Rothschild, LLP, 925 A.2d 798, 804 (Pa. Super. 2007).

Assuming arguendo there is no waiver due to the untimely I 92S(b) S� the is.,ues

raised in Appellant's 1925(b) Statement shall be addressed ad seriatim.

Il. Claims of Evidentiary Error

Appellant makes multiple claims of evidentiary error regarding the Comt's rulinp on the

admissibility of certain text message exchanges. See 1925(1,) Statement, 11 I, 2 and J.

Appellant's claims are meritless.

A. Relevant Legal Principles

Except as otherwise provided by law, all relevant evidence is admissible. Pa.R.E. 402.

The threshold inquiry with admission of evidence is whether the evidence is relevant. Evidence is relevant if it logically tends to establish a mataia1 fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presmnption regarding the existmcc of a material fact. In addition, evidence is only admissible where the probative value of the evidence outweighs its prejudicial impact.

10 Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (internal citations and quotation

marks omitted). Evidence is not unfairly prejudicial simply because it may be harmful to the

defendant's case. Id.

Also, as appropriate, evidence must be properly authenticated. "(T]he proponent must

produce evidence sufficient to support a finding that the item is what the proponent claims it is."

Pa.R.E. 901(a). This can include testimony by a witness with knowledge of the item that the item

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

Text messages may be authenticated by: (1) testimony of the author or sender; (2)

circumstantial evidence, including distinctive characteristics tending to identify the IIUlbor or

sender or references to events preceding or following the messages; or (3) any other facts or

aspects of the messages that signify they are what the proponent claims them to be.

Commonwealth v. Mu"ay, 174 A.3d 1147, 1156-57 (Pa. Super. 2017), appeal dt!ni«.I, 187 A.3d

204 (Pa. 2018); see also Pa.R.E. 901.

1. Text messages sent from and received on Yarkewkz'1 c:ell phone

First, Appellant claims it was error to admit text messages dated January S, 2018 which

were sent from and received on Yurkewicz's cell phone, which was assigned the number 814-

520-3540.9 Appellant claims error occurred because "the Commonwealth was unable to

authenticate the text messages ... as they were unable to prove the author(s) of the text messages

sent from ... [and) received by cell #814-520-3540. 1925(b) Stalement, 11.

Appellant's first claim of evidentiary error is waived as vague. If not waived, AppeUhmt S 9

evidentiary claim is wholly without merit. Assuming arguendo error occurred, it was barmles.,

error.

9 It is undisputed the decedent, Adam Yurkewicz, was the owner of the cell phone associaled with 1be IIIDbel' 114- 520-3540. 1r. Day I, p.22.

11 Appellant's evidentiary claim is waived as vague. In the 1925(b) Statcmcot, Appellant

only provides Yurkewicz's cell phone number with no context or reference to specific enoa in

the record. A concise statement which is too vague to allow the comt to identify the issues

raised on appeal is the functional equivalent of no concise statement at all. CotnlllOR'Wealth v.

Reeves, 907 A.2d I, 2 (Pa.Super. 2006), appeal denied, 919 A.2d 956 (Pa. 2007). The court's

review and legal analysis can be fatally impaired when the comt has to guess at the issues raised.

Id If a concise statement is too vague, the court may find waiver. Id Appellant's claim of

evidentiary error is not specific enough for the Court to adequately add.reM, and tben:fore the

claim is waived as vague.

If this claim is not waived for vagueness, Appellant's claim is without merit. Any claim

that text messages sent from and received by Yurkewicz' s cell phone were not properly

authenticated must fail. There was more than sufficient testimony from wimesses with

knowledge demonstrating the cell phone was what it was purported to be - Yurkewicz's cell

phone. This included testimony from Yurkewicz's fimde, Kayla Turk, who confinned text

exchanges between herself and Yurkewicz on January 5, 2018 and Yurkewicz's gnmdmothcr,

Marlene, who confirmed the phone calls she and Yurkewicz had the morning of January S, 2018;

testimony from Detective Presner that he had recovered the cell phone at issue from Ymkewicz's

pocket; and testimony from Detective Styn regarding the data, including personal social media

accounts and email associated with Y urkewicz, extracted from the cell phone.

Also, there was significant circumstantial evidence corroborating that not only was it

Yurkewicz' s cell phone, but that Yurkewicz was indeed the author of the text messages at issue.

This included evidence, previously discussed herein, of text messages with 9983 indicative of a

drug transaction and pings from Yurkewicz's cell phone putting him in the area of 24 and 1111

12 German when the deal with Appellant was set to occur. When Yurkewicz's body was found, a

loaded syringe was found in the nearby sink and a packet of fentanyl was found in bis pocket.

The circumstantial evidence sufficiently identifies Yurkewicz as the author of the text musagcs

based on the references to the events preceding and following the text messages and the

surrounding facts of the case. The text messages sent from and received on Ymtewicz's cell

phone were properly authenticated and there was no error in their admission. Appellant's claim

of error must be dismissed.

Assuming arguendo the text messages on Yurkewicz's cell phone were not properly

authenticated, it was harmless error to admit them. A primary pmpose in introducing the text

messages from Yurkewicz's cell phone was to establish a line of communication between

Appellant and Yurkewicz, linking Appellant to Yurkewicz's death. Appellant was acquitted of

the charge relating to Yurkewicz's death, Count One - Drug Delivery Resulting in Death. Also,

Appellant was acquitted of the following charges arising from alleged activities of Jammy S,

2018: Count Two - Possession With Intent to Deliver (fentanyl), Count Three - Posseaion of

Drug Paraphernalia. and Count Four - Possession (heroin/fentanyl). Therefore, the identity of

the author of text messages on Yurkewicz's cell phone is of no consequence and no JR.iudice occurred to Appellant by their admission.

2. Text messages sent from and received on the ceD p•one woeiated with 9983.

Second, Appellant claims it was error to admit text messages dated January S, 2011 and

January 6, 2018 which were sent from and received on a cell phone with a number ofl14-449--

9983. Appellant claims error occurred because ''the Commonwealth was unable to authc:nticalc

the text messages . . . as they were unable to prove the author(s) of the text messages sent from

... [and] received by cell# 814-449-9983." 1925(b) Stalement. 112.

13 Appellant's second claim of evidentiary error is also waived as vague. Further.

Appellant's evidentiary claim is wholly without merit

Appellant's claim is waived as vague. Appellant's 192S(b) Statement docs not identify

where the specific issues complained of regarding the cell phone number 8 I 4-449-9983 are

found in the record or their significance in the outcome of the case. Appellant�s claim of

evidentiary error is not specific enough for the Court to adequately address, and tbeftfore the

claim is waived as vague. See Pa.R.A.P. 1925(b); Commonwealth v. Reeves, 907 A.2d at 2.

Assuming arguendo the claim is not waived as vague, the assertion the text messages

sent from and received by 9983 were not properly authenticated is meritless. Thete was

sufficient testimony from witnesses with knowledge demonstrating the cell phone was what it

was purported to be - Appellant's cell phone. Detective Fiorelli testified that the iPbonc in the

red and black case was recovered next to Appellant's seat in the vehicle, and the i.Phone was

connected to the number 9983. There were significant contextual clues and circumsaantial

evidence corroborating that Appellant was the author of the text messages at issue. This

included: the texts between Yurkewicz and 9983 and the ci.reumstances surrounding

Yurkewicz's death discussed above; the contents of texts between thiJd parties and 9983 using

slang terms consistent with drug dealing, where 9983 set up the location for the 1rBDsadions in

areas near Appellant's home; and third party texts identifying Appellant by name to which be

responded affirmatively. Most significantly, at the time and place of the undercover drug deal

between the author of texts from 9983 and Detective Hard.Der, Appellant arrived in a whi1e Audi

in possession of heroin and fentanyl.

Applying the relevant legal principles, the totality of the evidence was mon: than

sufficient to identify Appellant as the author of the text messages from 9983 based on the

14 references to the events preceding and following the text messages and the surrounding .as of the case. The circumstantial evidence established Appellant authored the texts &om 9913. The

texts were properly authenticated and there was no error in their admission. Appellant's claim of

error must be dismissed.

Appellant asserts the cases of Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011).

ajj'd, 106 A.3d 705 (Pa. 2014), and Commonwealth v. Mangel, 181 A.3d 1154, 1159 (Pa. Super.

2018) require a different conclusion. Appellant's assertions are unpersuasive. In Koc� on an

issue of first impression, the Pennsylvania Superior Cowt considered what was required to

authenticate text messages. Commonwealth v. Koch, .39 A.3d at 1003. The Superior Court

concluded text messages are documents subject to the same requirements for authenticity as non-

electronic documents. Koch at 1004. The Court determined such authentication rcquha mon:

than mere confirmation that the number belongs to a particular person. Addilional

"[c]ircwnstantial evidence, which tends to corroborate the identity of the sender, is n:quilm."

Koch at 1005. In Koch, the Superior Court detennined text messages were admitted in error

where the Commonwealth's witness acknowledged he could not confirm the defendant was the

author of the texts and conceded the defendant did not write some of the messages. Notably, in

Koch, there were no contextual clues tending to reveal the identity ofthe tllllhor and no nidena

the defendant had written the text messages ("Glaringly absent in this case is any evidence

tending to substantiate that Appellant wrote the drug-related text messages." Koch at I OOS). In

the instant case, there was substantial circumstantial evidence pointing to Appellant as the author

of texts from 9983.

Mangel is largely inapplicable to the instant facts as it specifically concerned

authentication of social media. Commonwealth v. Mangel, 181 A.3d at 1159. However, the

15 Court in Mangel applied the Superior Court's reasoning in Koch in detamining the

authentication of social media evidence requires "direct or circumstantiaJ evidence that tends to

corroborate the identity of the author of the communication in question, such as testimony &om

the person who sent or received the communication, or contextual clues in the COllf1lf1lnical

tending to reveal the identity of the sender." Mangel at .1162 (emphasis added). Apin, the fads

and holding of Mangel do not support Appellant's claims under the facts of the instant case.

Appellant's claim must be dismissed.

3. Contents of 'Exhibit B' and "Jake B."

Appellant contends it was error to refuse ''to admit Defendant's 'Exhibit 8', text

messages from 'Jake B' to the decedent's cell phone". Appellant appean to claim 'F.xlnmt B'

would have "delineat[ed] a separate source ofillegaJ narcotics". 1925(b) Statement, 1 J. Appellant's claim is waived. Further, it lacks a factual basis. Assuming argueNlo the

claim is not waived, no error occurred.

The claim is waived as vague and underdeveloped. Appellant provides no ICfcrenccs to

the record of any attempt to introduce 'Exhibit B' or the Court's ruling thereon. Appeliant fails

to identify the significance of any such text messages other than to suggest they delinc::at.e a

separate source of illegal drugs. Appellant fails to identify how any other source of illepl

narcotics would have changed the outcome of this case. Appellant was acquitted of the charges

relating to the death of Yurkewicz. The Court cannot adequately address this issue for leek of

specificity. The claim is waived. Pa.R.A.P. 192S(b).

Similarly, Appellant's claim that the Court refused to admit 'Exhibit B' is factually

inaccurate and belied by the record Appellant provides no references to the record of any

16 10 attempt to introduce 'Exhibit B' or the Court's ruling thereon.

Even if 'Exhibit B' had been offered into the record and the Court refused its admission,

there was no error. 'Exhibit B' contained excerpts from Detective Styo's report regarding the

contents of Yurkewicz's cell phone. Initially, the Court did not permit Appellant to queslion

Detective Styn about any text messages from "Jake B" on the basis of relevancy. Tr. Day 2. pp.

134-135. However, the Court subsequently permitted Appellant to question Detectiw Styn

regarding 'Exhibit B' over the Commonwealth's objection:

MR. HOPKINS: Detective, did you pull the information contained in Defendant's Exhibit B from the phone of Mr. Yurkewicz?

DETECTIVE STYN: Yes.

MS. ANGLIN: And Judge, I'm going to object to any reference to Defense's Exhibit B. We have no objection to Exhibit A, but B we do have a problem with.

MR. HOPKINS: I haven't asked her to read from it or say anything more about it. Just that she did pull that information from the phone.

THE COURT: That's fine, as it relates to that question.

MR. HOPKINS: Thank you.

Tr. Day 2, p. 136.

The questioning regarding 'Exhibit B' continued:

MR. HOPKINS: Okay, so looking at Defendant's Exhibit 8, are you able to tell us whether or not any additional messages that bad been deleted sdll - had been overwritten after the third of January?

DETECTNE STYN: Is there a page number for that? I'm sorry.

MR. HOPKINS: Well, the messages begin on the sixth page, but the question is, since all of the messages on Defendant's Exhibit B are IIIUked deleted - is that right?

10 There is no indication in the record that 'Exlul>it B' was offered as an c:xlul>it or die Court rdbscd i1s m1am1ion. Tr. Day 2, pp. 132-142.

17 DETECTIVE STYN: Yes. MR. HOPKINS: -- are you able to tell us whether or not there WC1e further messages from the phone number listed in Defendant's Exhibit B after the third that were deleted, but didn't - weren't recoverable?

DETECTIVE STYN: No, I would not be able to tell you that.

MR. HOPKINS: So the phone conversation in this could've continued?

DETECTIVE STYN: Correct.

MR. HOPKINS: But based on the phone overwriting areas, we don't know?

MR. HOPKINS: Your Honor, I would again seek to go further.

THE COURT: That's a matter of pure speculation.

MR. HOPKINS: To be clear,just going with what we do have the records for-

THE COURT: I've already ruled on that.

MR. HOPKINS: Okay.

Tr. Day 2, p. 139-140 (emphasis added).

Appellant's counsel even elicited testimony from Detective Styn the texts on 'Exhibit B'

were deleted from Yurkewicz's cell phone. Tr. Day 2, p. 139. A fair reacting of Appellant's

cross-examination revealed all messages listed on 'Exhibit B' were deleted and 'Exhibit B'

showed no messages were retrieved after January 3, 2018. Given the latitude afforded to

Appellant's counsel in regard to questioning Detective Styn about 'Exhibit B'. Appellant was

free to advance any theory that messages from a third party source may have been deleted or

overwritten in Yurkewicz's cell phone. The only limitation placed on Appellant's cross,.

examination of Detective Styn was the inability to question Detective Styn about "Jake B", a

topic the Court determined was irrelevant and speculative. Appellant's claim is meritlea.

18 Assuming arguendo error occurred in precluding reference to "Jake en during

questioning of Detective Styn, this was harmless error. Per the 1925(b) Statancnt, it appears

Appellant's intention with 'Exhibit B' (excerpts from Detective Styn's rq,ort regarding the

contents of Yurkewicz's cell phone) was to suggest "Jake B" as a possible soun:e of illegal

narcotics for Yurkewicz. This is of no moment. Appellant was acquitted of Count One» Drug

Delivery Resulting in Death (Yurkewicz). Furthermore, the texts referenced in �Exln"bit B' were

deleted and no texts referenced on 'Exhibit B' were dated after January 3, 2018. Therefore, no

prejudice occurred and any claimed error was harmless. Appellant's claim must be dismissed.

m. Sufficiency of the evidence for conviction on co-t Seven - Crillmlal U1e of Communication Facility.

Appellant asserts the evidence was insufficient for the jury to convict at Count Seven,

Criminal Use of Communication Facility, because ''the Court should not have erroneously

admitted the unauthenticated text messages". See J925(b) Statemenl, 1 4. This claim is without merit and should be dismissed.

A. Sufr1eiency of the Evidence Standard

When evaluating a challenge to the sufficiency of the evidence, the Comt must ddcrmine

whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict

winner, together with all reasonable inferences from that evidence, the trier of fact could have

found each element of the crime charged was established beyond a reasonable doubt.

Commonwealth v. Hargrave, 145 A.Jd 20, 22 (Pa.Super. 2000), appeal derMd, 160 A2d ISi

(Pa. 2000)(internal citations omitted); Commonwealth. v. Brunson, 938 A.2d IOS7, 1058

(Pa.Super. 2007); Commonwealth v. Chambers, 599 A.2d 630, 633 (Pa. 1991). The

Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence.

19 Commonwealth v. Hopkins, 747 A.2d 910, 913 (Pa.Super. 2000). The facts and circums1ances

established by the Commonwealth need not preclude every possibility of innocence, and any

questions or doubts are to be resolved by the fact-finder, unless the evidence is so weak and.

inconclusive that, as a matter of law, no probability. of fact can be drawn man tbe combined circumstances. Commonwealth v. Hopkins, supra at 913-14.

Viewing the evidence against this staadard, Appellant's contention is without merit.

B. Review of Evidence for Sufficiency Claims

Appellant's claim of sufficiency of the evidence is meritless and must be dismi,sed, The

factual basis for Criminal Use of Communication Facility at Count Seven is that on the morning

of January 6, 2018, Appellant, using phone number (814) 449-9983, bad contact with an

undercover officer regarding a drug transaction at the 300 block of F.ast 24111 Street, City of�

Erie County, Pennsylvania. Information.

To sustain a conviction for Criminal Use of Communication Facility (18 Pa. C.S.A. §

7512), the Commonwealth must establish the defendant: I) knowingly and intmtionally used a

communication facility; 2) knowingly, intentionally or recklessly facilitated an undc:rlying

felony; and 3) the underlying felony occurred. Commonwealth v. Moss. 852 A.2d 374, 382 (Pa.

Super. 2004). A "communication facility'' is defined as "a public or private insllrumen1ality used

or useful in the transmission of signs, signals, writing, images, sounds, data or intelligence of any

nature transmitted in whole or in part, including, but not limited to, telephone, wiR, radio,

electromagnetic, photoelectronic or photo-optical systems or the mail." 18 Pa. C.S.A. § 7512(c).

The elements of the crime were satisfied. Here, the record, viewed in the light most

favorable to the Commonwealth, established beyond a reasonable doubt that Appellant

20 knowingly and intentionally used the cell phone associated with 9983 to engage in a drug

transaction with undercover Detective Hanmer on January 6, 20!8. As recounted previously, the

record established Appellant had contact with Detective Hanmer regarding a drug transaction

occurring at 2411t Street between German and Parade Streets. At 9:19 a.m. on Janumy 6, 2018,

Detective Hardner texted "Yo" to 9983 using Yurkewicz's cell phone. See Common.ww:alth

Exhibit 12. At 9:54 a.m., Appellant responded "sup" and a conversation ensued regarding the

drug transaction. At 10:44 a.m., Appellant directed Detective Hmdner to "meet me on 24" at

which point Detective Hardner and back-up officers travelled toBest 24• Street between German

and Parade Streets. At 11 :04 am. Detective Hanmer texted "Pullin up". A white Audi was

observed driving down East 24th Street and briefly stopping at Appellant's mother's home

located on the same block. Appellant exited the vehicle, entered his mother's rcsidcoce, and

shortly thereafter returned to the vehicle. The white Audi moved further down the slft'.et and

parked on the side of the road in front of Detective Hardner's vehicle. Shortly 1bcreafter,

Detective Hardner received a phone call from 9983 with a male voice directing him to come to

the ''white car''. Appellant made suspicious movements in the vehicle just prior to arrest. Heroin

and fentanyl were found on the floor mat below the seat where he bad been sitting.

Also, Appellant was convicted of the felony offense of Possession With lntmt to Dcliw:r

(fentanyl) with regard to this specific transaction. There was sufficient evidence for the jury to

conclude the elements of Count Seven, Criminal Use of Communication Facility, were

established beyond a reasonable doubt. Appellant's claim must fail.

21 IV. Motion in Limine

Appellant claims error occurred in not holding a "proper hearing" on the Motion in

Limine.

Appellant claims this resulted in the admission of otherwise inadmissible text messages. See

1925(b) Statement, ,i 5.

Appellant's claim is waived as vague. Even if the claim is not waived, it is wholly

without merit.

Appellant's claim is waived for vagueness. Appellant fails to point to any requin:ment or

rule of law that was not followed. The Court is unable to analyze this issue. Thus, Appellant's

claim must fail. See Pa.R.A.P. 192S(b); Commonwealth v. Reeves, 901 A.2d at 2.

Assuming arguendo Appellant's claim is not waived, it is wholly without merit. "A

motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior Ill or

during trial, but before the e11idence has Htell offend." Commonwealth "· John.ron, 582 A.2d

336, 337 (Pa. Super. 1990), ajj'd, 534 Pa. 51, 626 A.2d 514 (1993), citing L. Packel & A.B.

Poulin, Pennsylvania Evidence§ 103.3 (1987) (emphasis added). Essentially, a motion in Um.me

is a vehicle to obtain a ruling on an evidentiary issue and a trial court may reserve its ruling until

trial, in which case the parties are prohibited from referring to the evidence during trial until the

court makes its ruling. See Commonwealth v. Metzer, 634 A.2d 228, 232 n, 3 (Pa. Super. 1993).

In the present case, the issues raised in Appellant's Motion in Limine were fully

considered by the Court and the Court made definitive rulings on the issues outside of the

presence of the jury. On October 31, 2018, Appellant filed a Motion in Liminc, seeking a ruling

that text messages dated January 5, 2018 sent from and received on a cell phone associated with

814-520-3540 (Yurkewicz), and text messages dated January 5 and January 6, 2018 sent fiom

22 and received on a cell phone associated with 814-449-9983 (9983), were inadmissible for lack of

authentication and as inadmissible hearsay. Appellant requested an evidentiary bearing on the

requests.

On November 13, 2018, before voir dire, the Court thoroughly addlased the claims in

the Motion in Limine. Tr. Day 1, pp. 6-36. The Court considered legal argument by the

Commonwealth and Appellant. Id. The Court determined the Commonwaltb met its "tbn:sbold

burden" in proffering a basis for authentication of the text messages, advising it would

nonetheless be incumbent upon the Commonwealth to proffer sufficient circumstantial evidence

at trial to establish authorship. See Tr. Day 1, pp. 23-24.

On November 13, 2018, during trial but before the contents of the texts were ptamted to

the jury, the Court held a sidebar regarding text message exchanges on Yurkewicz's phone on

January 5, 2018. Tr. Day 1, pp. 227-230. The Court found there was sufficient circumstantial evidence to authenticate the texts. Id

During a recess on November 14, 2018, the Court addressed with counsel Appellant's

objection regarding authentication of text message exchanges on 9983. Tr. Day 2. pp. 61--69.

The Court determined the text message, "Dion", from a third party to 9983 was admissible for

the limited purpose of connecting or linking the cell phone with AppellanL Tr. Day 1, pp. U-65.

The Court also ruled the texts between the dates of January 5 and January 6, 2018, betwa:n thinl

parties and 9983 regarding a change in the drug supply, were relevant and admissible. Tr. Day 1.

pp. 68-69. The record demonstrates the Court appropriately addressed all of Appellant's claims

in the Motion in Limine. Appellant's claim is wholly without merit

23 CONCLUSION

For foregoing reasons, the judgment of sentence should be affirmed. The Ciak of Courts

is hereby directed to transmit the record to the Superior Court.

BY THE COURT:

Date

cc: District Attorney's Office l\Jl?U,,,llefender,�srQffi�,:,;a.,:\· Damon Hopkins, Esq.

24 COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA'.�:. r·ri J= �::; ·,. . . . . ..... ·--, .. v. CRIMINAL DIVISION

DION ELUAH WAYNE NO. 697-2018

:_..-: (...J Ul

SUPPLEMENTAL 1925{a) OPINION

This matter is before the Court on Appellant's Amended Statement of Matters

Complained of on Appeal filed on June 28, 2019. For the reasons set forth in this Court's

192S(a) Opinion filed on April 8, 2019 and the reasons set forth below, the judgment of sentence

should be affirmed.

BACKGROUND

On January 23, 2019, Appellant filed a Notice of Appeal. On February 4, 2019, the

Court directed Appellant to file a l 925(b) Statement of Matters Complained of on Appeal within

30 days.1 Appellant filed a Statement of Matters Complained of on Appeal on February 28,

2019. On April 8, 2019, this Court filed the 1925(a) Opinion in this matter. The opinion is

iocorpotated herein by reference.

On Jm1e 14, 2019, Appellant filed an Application for Relief with the Superior Court of

Pennsylvania, requesting leave to amend the 1925(b). On June 20, 2019, the Superior Court of

Pennsylvania remanded the record to this Court to allow Appellant to file an amended 1925(b),

and directed this Court to prepare a supplemental 1925(a) Opinion. On June 28, 2019, Appellant

I Dis Cowl IIOfes an error was made in its original 1925(a) Opinion in calculating Appellant's original 1925(b) SUllaDenl untimely. Appellant was granted 30 days, not 21 days, to file the l 925(b) Statement by Order of February 4, 2019. The 1925(b) SWement, filed on February 28, 2019, was therefore timely. filed an Amended Statement of Matters Complained of on Appeal. This Opinion is in response

thcmo.2

Parap� Appellailt's Amended Statement of Matters Complained of on Appeal raises

issues regarding the sufficiency of the evidence, to-wit:

I. Whether there was sufficient evidence for the jury to convict at Count Six, Possession With Intent to Deliver (heroin and/or fentanyl);

2. Whether there was sufficient evidence for the jury to convict at Count Five, Tampering With or Fabricating Physical Evidence; and

3. Whether there was sufficient evidence for the jury to convict at Count Seven, Criminal Use of Communication Facility.

The standard of review for the sufficiency of the evidence was previously set forth in the

Comt's original 1925(a) Opinion:

When evaluating a challenge· to the sufficiency of the evidence, the Court must determine whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, together with all reasonable inferences from that evidence, the trier of fact could have found each element of the crime charged was established beyond a reasonable doubt. Commonwealth v. Hargrave, 145 A.3d 20, 22 (Pa.Super. 2000), appeal denied, 160 A.2d 85 l (Pa. 2000)(internal citations omitted); Commonwealth. v. Brunson, 938 A.2d 1057, 1058 (Pa.Super. 2007); Commonwealth v. Chambers, 599 A.2d 630, 633 (Pa. 1991). The Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. Commonwealth v. Hopkins, 141 A.2d 910, 913 (Pa.Super. 2000). The facts and· circumstances established by the Commonwealth need not preclude every possibility of innocence, and any questions or doubts are to be resolved by the fact-finder, unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances. Commonwealth v. Hopkins, supra at 913-14.

Opinion, April 8, 1019 at 19-10. 2 Tbc Amcodcd 192S(b) Statement flied on June 28, 2019 did not incorporate by reference the allegations in the original 1925(1,) Stalement filed on February 28, 20,19.

2 , When viewed against this standard, Appellant's additional claims regarding the

sufficiency of the evidence must fail. Appellant's claims will be addressed ad seriatim.

1. Safflcie•cy of the evidence for conviction on Count Six - Possession Witlb. Intent to Deliver (heroin and/or fentanyl).

Appellant asserts the evidence was insufficient for the jury to convict at Count Six,

Posseaion With Intent to Deliver (heroin and/or fentanyl), because " ... the Commonwealth

failed to present sufficient evidence that the controlled substance was ever in the possession of

Appellant, that the Appellant was aware of its presence, and/or that the Appellant possessed the

controlled substance with the intent to deliver it or furnish it to another." See Amended

Sla1emen1 ofMatters Complained ofon Appeal, ,r B9. This claim is without merit and should be

dismissed.

Appellant's claim of sufficiency of the evidence is meritless and must be dismissed. The

factual basis for Possession with Intent to Deliver (heroin and/or fentanyl) at Count Six is that on

January 6, 2018, Appellant, directly or by virtue of his complicity, did deliver or possess with

intent to deliver heroin and/or fentanyl to an undercover Millcreek Township Police Officer

posing as Adam J. Yurkewicz at the 300 block of East 241h Street, City of Erie, Erie County,

Pennsylvania. lnformaJion.

To sustain a conviction for Possession With Intent to Deliver (35 Pa.C.S.A. § 780-

l I 3(aX30)), the Commonwealth must establish the defendant: I) possessed a controlled

substance and 2) intended to deliver it. See Commonwealth v. Little, 879 A.2d 293, 297 (Pa.

Super. 2005). All of the facts and circumstances surrounding the possession are relevant and the

elements of the crime may be established by circumstantial evidence. Id "The Commonwealth

may meet its burden of proving a possessory crime by showing actual possession, constructive

3 possessio� or joint constructive possession. Commonwealth v. Hall, 199 A.3d 954, 960 (2018),

�al Mnied. 206 A.3d 1028 (Pa. 2019) (citations omitted). "Constructive possession'' has been

defined as the "ability to exercise a conscious domain over" an item and requires proof that the

defendant had knowledge of the existence and location of the item. Commonwealth v. Hall, 199 ;

A..Jd at 96/. When" ... more than one person has access to the contraband, 'the Commonwealth '

must introduce evidence demonstrating either [the defendant's] participation in the drug-related

activity or evidenct connecting [the defendant] to the ... areas where the drugs were kept'." Id. :

The elements of control can be proven circumstantially by examining the totality of the

cireumstances. Id.

The elements of the crime were satisfied. Here, the record, viewed in the light most

favorable to the Commonwealth, established beyond a reasonable doubt that Appellant was in at

least constructive possession of heroin and/or fentanyl, as he had the ability to exercise conscious

domain over the drugs, he was aware of their existence and location within the vehicle, and

significant evi� existed demonstratingAppellant's participation in drug-related activity.

In its original I 925(a) Opinion, the Court exhaustively discussed the overwhelming

evidence establisbqig Appellant had engaged in text messages to arrange a drug transaction to

occtD' on January 6, 2018 at 24111 Street between German and Parade Streets. The evidence also

established Appellant resided only a few houses down from the location arranged for the drug

deal. Immediately' after the final texts arranging the delivery of the drugs, the white Audi

Appellant was traveling in stopped in front of his mother's residence and Appellant exited from

the ftont passenger seat of the vehicle. Shortly thereafter, Appellant re-entered the Audi and the

vehicle moved a little further down the road. Transcript of Proceedings, Day 2, November 14,

2018 (fr. Day 2) pp. 246-247. It was at this time the phone call directing the undercover officer

4 to the "white car"\ was received. Tr. Day 2, pp. 189·197. As officers were approaching the

vehicle to eff� an arrest, Appellant was observed leaning forward in the passenger seat

"making furtive m+vements with his arms towards the floorboards of the front passenger's seat"

Tr. Day 2, pp. I 5JJJ54. ! When Appellant was removed from the front passenger seat of the white

Audi for arrest, he kept trying to brush off a "white powdery substance" from the right leg of his I I sweatpants. Tr. .l)qy 2, p. 156. Upon a search of the vehicle immediately following Appellant's j

am:st, a "chunky �ubstance I with powder residue on top'' was located on the floor mat on the l front passenger sictb of the Audi. Id Subsequent testing revealed the substance recovered from I the passenger fl� contained heroin and fentanyl. Tr. Day 2, pp. 233·235. A folded-up white

piece of paper, consistent with a common way of packaging heroin or fentanyl, was also

recovered from the passenger floor of the vehicle. Tr. Day 2, pp. 15 7• 161. The search of

Appellant's person recovered, among other things, $1,020.00 of US currency "in a stack," Tr.

Day 2, pp. 164· 166.

When viewed in the light most favorable to the Commonwealth, the evidence was

sufficient to establish beyond a reasonable doubt that Appellant was in constructive possession

of heroin and/or featanyl and intended to deliver the drugs. Appellant was the passenger in the

white Audi that arrived at 24th Street between German and Parade Streets on January 6, 2018 to

complete a drug d$1. It is also indisputable that a substance was found on the passenger's side

floor mat of the Audi that tested positive for heroin and/or fentanyl. Although he was not the

only occupant of the vehicle, Appellant had at least equal access to the drugs and the drugs were

found in close proximity to where Appellant was sitting in the vehicle. The white piece of paper,

consistent with dn1g packaging, was also right below where Appellant had been sitting.

Appellant's behavior was suspicious, as suddenly upon realizing the police were closing in he

5 began making "furtive movements with bis arms" in the direction of the floorboard. No drug

parapbemalia was found indicating the drugs were for personal use. An unusually large stack of

cash was found in Appellant's pockets. These facts and circumstances established Appellant

possessed the heroin and/or fentanyl with the intent to deliver in violation of the statute.

AppeUant's claim must fail.

l. Saflideney of the evidence for conviction on Count Five - Tampering With or Fabricating Physical Evidence

AppeUant asserts the evidence was insufficient for the jury to convict at Count Five,

Tampering With or Fabricating Physical Evidence, because " ... the Commonwealth failed to

establish that the Appellant was even in possession of heroin/fentanyl at the time of his arrest ...

[and] failed to establish that the Appellant did anything to destroy and/or conceal heroin/fentanyl

from being discovered in the vehicle." See Amended Statement of Matters Complained of on

Appeal, 1 BIO. This claim is without merit and should be dismissed.

Appellant's claim of sufficiency of the evidence is meritless and must be dismissed. The

factual basis for Tampering with or Fabricating Physical Evidence at Count Five is that on

January 6, 20l8, Appellant emptied heroin and/or fentanyl from a folded white piece of paper

onto the floor of the vehicle at the 300 block of East 24th Street, City of Erie, Erie County,

Pennsylvania. Information.

In relevant part, a person is guilty of Tampering With or Fabricating Physical Evidence if,

believing that an official proceeding or investigation is pending or about to be instituted, he

conceals or removes any thing with the intent to impair its verity or availability in such

procccding or investigation. 18 Pa.C.S.A. § 4910(1).

6 The eleme$ts of the crime were satisfied. Here, the record, viewed in the light most

favorable to the Commonwealth, established beyond a reasonable doubt that Appellant attempted

to conceal or impair the availability of contraband in connection with a pending investigation.

As discussed aboff, the evidence established Appellant constructively possessed heroin and/or

fentanyl with the intent to distribute it. At the time of the drug deal, when Appellant realized he

had been caught in a drug sting, he hurriedly attempted to dispose of the drugs before the police

reached the vehicle. Appellant was observed making "furtive amt movements" toward the

pas.,cngcr side floorboard of the vehicle, where subsequently heroin and/or fentanyl were found.

The evidence was sufficient for the jury to conclude the elements of Count Five, Tampering

Wrtb or Fabricating Physical Evidence, were established beyond a reasonable doubt. Appellant's

claim must fail.

3. Saffldeney of the evidence for conviction on Count Seven - Criminal Use of Co••anication Facility.

Finally, Appellant asserts the evidence was insufficient for the jury to convict at Count

Seven, Criminal Use of Communication Facility, because "the Court should not have

erroneously admitb:d the unauthenticated text messages". See Amended Statement of Matters

Complained ofon .Appeal, 1 Bl 1. This claim is without merit and should be dismissed.

Appellant's claim of sufficiency of the evidence as to Count Seven, Criminal Use of

Communication Facility as well as the claim of evidentiary error regarding the text messages

were fully addlased in the Court's original 1925(a) Opinion. See Opinion, April 8, 2019, 10-16;

19-11. The Court's analysis and reasoning as to this repeated claim is incorporated herein as if

set forth in its entirety. Appellant's claim must be dismissed.

7 CONCLUSION

For foregoing reasons, the judgment of sentence should be affirmed. The Clerk of Courts

is hereby directed to transmit the record to the Superior Court.

t/t5 /2019 Dater 1

cc: District A�mey's Office Emily Merski, Esq., Public Defender's Office