Com. v. Westbrook, G.

• Court: Superior Court of Pennsylvania
• Decided: June 30, 2026
• Docket: 953 EDA 2024
• Status: Unpublished
• Author: Stabile

Opinion

J-S39009-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GEORGE WESTBROOK : : Appellant : No. 953 EDA 2024

Appeal from the PCRA Order Entered February 26, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No: CP-51-CR-0012208-2014

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

MEMORANDUM BY STABILE, J.: FILED JUNE 30, 2026

Appellant, George Westbrook, appeals from an order denying his

petition for relief under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-

9546. Appellant argues that trial counsel was ineffective for failing to move

to suppress cell phone records obtained through two search warrants and for

failing to object to admission of these records on grounds of hearsay and lack

of authenticity. We affirm.

The record reflects that in the early morning hours of May 1, 2014, the

victim Andrew Keeys, was active on Talkee, a phone chat line, looking to meet

someone for a possible sexual encounter. Appellant responded to a voice

message that Keeys had published, and they exchanged voice messages.

Keeys gave Appellant his cell phone number and the two began texting. After

agreeing to meet one another, Keeys provided Appellant with his address.

Appellant was supposed to arrive within 20 minutes. After 45 minutes to an J-S39009-25

hour passed, Keeys grew frustrated. He sent a number of messages to

Appellant; in one, he called Appellant an “asshole.” Shortly thereafter,

Appellant arrived at Keeys’ apartment.

Keeys let Appellant inside. They sat on a couch and engaged in casual

conversation. Appellant then began reading the text messages that Keeys

had sent him. Keeys apologized for using a profanity, explaining that he

thought he had been stood up. Appellant appeared upset and had a “blank”

expression on his face. The two returned to the topic of sex. Appellant

expressed that he wanted to receive oral sex. Keeys was not interested, so

he responded with “I don’t think so.” Appellant stood up, reached around his

waistband, and withdrew a firearm. Appellant accused Keeys of

“antagonizing” him and asked, “[w]hat if I popped you right now?” Keeys

immediately apologized for offending Appellant and asked him to calm down.

Appellant ordered Keeys to lie on the floor. A brief scuffle ensued,

during which Keeys attempted to prevent Appellant from raising his gun.

Appellant pulled away, aimed the gun at Keeys, and shot him in the left chest.

Keeys stumbled back but was able to run from the room. He fled his

apartment and flagged down a pedestrian, asking him to call an ambulance.

When police responded, Keeys provided them with a description of his

assailant. Later, while Keeys was hospitalized, he provided detectives with

the phone number that Appellant had used to arrange their meeting.

After learning that the number was serviced by T-Mobile, Detective

Wayne Brown prepared a search warrant for user records associated with the

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number. The warrant, Search Warrant 181966, listed the location to be

searched as “Phone number 215-xxx-xxxx 1 T-Mobile who is currently doing

business in Philadelphia.” The warrant further listed the name of the owner,

occupant or possessor of the premises to be searched as “T-Mobile 4 Sylvan

Way Parsippany, NJ 07054.” Records received in response to the warrant

revealed that the phone number belonged to a pre-paid cell phone.

Unfortunately, the records did not include a name for the subscriber.

Without a suspect, the case soon went cold. This left Keeys feeling

unsafe, so a few months later, he typed the assailant’s phone number into a

Facebook search. The search returned a profile with the name of Avon G.

Sales, but the Facebook URL of the account was “george.westbrook.71.”

When Keeys looked at the account’s photos, Keeys immediately recognized

Appellant. Keeys informed the police about his discovery. When a detective

gave Keeys a photo array, Keeys identified Appellant as his attacker.

Detective Brown then prepared a second warrant, Search Warrant 187710,

for additional T-Mobile records. This warrant identified the location to be

searched as “T-Mobile cell phone #215-xxx-xxxx” and listed the owner of the

premises as “George Westbrook (T-Mobile).”

On May 17, 2016, Appellant proceeded to a jury trial. Keeys testified at

trial and identified Appellant as the man who came to his apartment and shot

him. The Commonwealth also presented the testimony of Special Agent ____________________________________________

1 Identifying numbers have been and will be redacted throughout this

memorandum.

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William Shute, who was qualified as an expert in cell tower analysis and

testified regarding a historical cell site analysis he conducted from Appellant’s

phone records. This analysis revealed that Appellant’s phone was near Keeys’

apartment at the time of the shooting. Additionally, Appellant’s T-Mobile

account records were introduced. Detective Brown explained the scope of

subscriber records sought under the two search warrants he prepared and

testified that T-Mobile provided him with these records in response to those

warrants. The records also included a cover sheet from a T-Mobile

representative stating that the records were being provided in response to

Detective Brown’s warrants. Finally, Glen Nelson, a community services

provider who had worked with Appellant since 2012, testified that Appellant

had communicated with him using the same number that was used to arrange

the meeting with Keeys.

On May 20, 2016, a jury convicted Appellant of aggravated assault and

possessing instruments of crime. After a bifurcated trial, the court convicted

Appellant of possession of a firearm by prohibited persons. The court

sentenced Appellant to an aggregate term of 12½ to 25 years of incarceration.

On March 23, 2018, this Court affirmed Appellant’s judgments of sentence on

direct appeal. Appellant did not seek review in the Pennsylvania Supreme

Court.

On March 19, 2019, Appellant filed a pro se PCRA petition. Counsel was

appointed and filed an amended petition, claiming, inter alia, that trial counsel

was ineffective for: (i) not filing a motion to suppress arguing that the T-

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Mobile search warrants were facially defective and void; and (ii) not objecting

to the admissibility of the T-Mobile records at trial as inadmissible hearsay and

insufficiently authenticated. On February 15, 2022, the PCRA court issued a

notice of its intent to dismiss the petition without a hearing pursuant to

Pa.R.Crim.P. 907. On February 26, 2024, the PCRA court dismissed the

petition. Appellant filed a timely appeal to this Court.

On August 27, 2024, the PCRA court ordered Appellant to file a concise

statement of matters complained of on appeal within the next 21 days. On

March 20, 2025, almost seven months later, Appellant filed his concise

statement in which he raised three issues:

(1) whether trial counsel was ineffective for failing to file a motion to

suppress Appellant’s T-Mobile phone records due to defective search

warrants;

(2) whether trial counsel was ineffective for failing to object to the

admissibility of the phone records on grounds of hearsay and lack of

authenticity; and

(3) whether trial counsel was ineffective for failing to object to the

admissibility of out-of-state cell phone records that were obtained with

a Philadelphia search warrant.2

____________________________________________

2 Appellant has waived issue (3) in his concise statement by failing to brief it

in this appeal. See Commonwealth v. Hudson-Greenly, 247 A.3d 21, 23 n.2 (Pa. Super. 2021) (claim raised in concise statement but not developed in appellate brief is waived).

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On April 2, 2025, the PCRA court filed an opinion that addressed issue (1) in

Appellant’s concise statement. On April 2, 2026, this Court remanded the

case to the PCRA court for preparation of a supplemental opinion on issue (2).

On May 8, 2026, the PCRA court filed a supplemental opinion concerning this

issue.

Preliminarily, we address whether Appellant’s counsel’s failure to file a

timely concise statement constitutes a waiver of issues (1) and (2). “This

Court has held that both the complete failure to file the 1925(b) statement ...

and the untimely filing of a 1925(b) statement is per se ineffectiveness

because it is without reasonable basis designed to effectuate the client’s

interest and waives all issues on appeal.” Commonwealth v. Sanchez-

Frometa, 256 A.3d 440, 442-43 (Pa. Super. 2021). “While these

circumstances often require a remand, where the trial court addresses the

issues raised in an untimely Rule 1925(b) statement, we need not remand but

may address the issues on their merits.” Id. at 443. Here, Appellant’s counsel

was per se ineffective for failing to file a timely concise statement.

Nevertheless, since the PCRA court has now filed opinions addressing issues

(1) and (2) in Appellant’s untimely Rule 1925(b) statement, and since both

issues have been briefed, we decline to find them waived. Id.

The two issues raised in this appeal are as follows:

Whether the PCRA Court erred and abused its discretion when it dismissed [Appellant’s] PCRA Petition where Trial Counsel, Joseph McPeak, was ineffective, because Trial Counsel failed to file a Motion to Suppress Evidence seized as a result of Search Warrants

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181966 and 187710, because said Search Warrants were facially defective and thus void?

Whether the PCRA Court erred and abused its discretion when it dismissed [Appellant’s] PCRA Petition where Trial Counsel, Joseph McPeak, was ineffective, because Trial Counsel failed to object to the admissibility of T-Mobile telephone records as being inadmissible hearsay and as being insufficiently authenticated?

Appellant’s Brief at 10.

In reviewing the denial of PCRA relief, this Court examines whether the

PCRA court’s determinations are supported by the record and free from legal

error. Commonwealth v. Diaz, 183 A.3d 417, 421 (Pa. Super. 2018). The

reviewing court is not bound by the PCRA court’s rationale for dismissing the

petition and may affirm for any reason supported by the record. Id. The law

presumes that counsel was effective, and a petitioner claiming ineffectiveness

bears the burden of proving otherwise. Commonwealth v. Orlando, 156

A.3d 1274, 1281 (Pa. Super. 2017). To overcome this presumption, a

petitioner must plead and prove by a preponderance of the evidence that: (1)

the underlying claim has arguable merit; (2) counsel had no reasonable

strategic basis for his or her action or inaction; and (3) the petitioner suffered

prejudice because of counsel’s action or inaction. Id. Our Supreme Court has

explained that:

A chosen strategy will not be found to have lacked a reasonable basis unless it is proven that an alternative not chosen offered a potential for success substantially greater than the course actually pursued.

Prejudice in the context of ineffective assistance of counsel means demonstrating that there is a reasonable probability, but for

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counsel’s error, the outcome of the proceedings would have been different.

Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). If a petitioner fails

to satisfy any one of the three prongs, the claim fails. Orlando, 156 A.3d at

1281.

Appellant first claims that trial counsel was ineffective for not moving to

suppress the T-Mobile records on the basis that the search warrants did not

list a specific Philadelphia address to be searched. This claim lacks arguable

merit.

Generally, a valid search warrant must “state the name or describe with

particularity the person or place to be searched.” Commonwealth v.

Washington, 858 A.2d 1255, 1258 (Pa. Super. 2004) (citing Pa.R.Crim.P.

206). However, warrants must “be read in a common sense fashion and

should not be invalidated by hypertechnical interpretations.” Id. As the

United States Supreme Court has stated, “[a] grudging or negative attitude

by reviewing courts toward warrants … is inconsistent with the Fourth

Amendment’s strong preference for searches conducted pursuant to a

warrant[.]” Illinois v. Gates, 462 U.S. 213, 236 (1983); see also

Washington, 858 A.2d at 1258 (an unreasonable interpretation of the

particularity requirement “would elevate form over substance”).

Here, Detective Brown sought subscriber records regarding a specific T-

Mobile cell phone number. He had no reason to believe that these records

would be located at only one physical address, or that they were even stored

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in physical form at any single T-Mobile property. Given the nature of records

storage in 2015—particularly for a national corporation serving countless

customers such as T-Mobile—it stands to reason that the records could have

been obtainable from any number of storage locations, physical or not. Thus,

read in a common-sense manner, the search warrants were not invalid simply

because they did not list a specific physical address to be searched. 3 Nor does

Appellant cite any authority creating a bright-line rule that every search

warrant must always specify a physical address to be searched to be valid. To

the contrary, we have explained that a search warrant can authorize the

search “of physical or digital spaces[.]” Commonwealth v. Young, 287 A.3d

907, 921 (Pa. Super. 2022).

Even assuming arguendo that this issue had arguable merit, Appellant

cannot prove prejudice. The phone records were merely cumulative of other

evidence that proved Appellant was the perpetrator. Keeys, the victim,

provided direct evidence through his testimony that Appellant shot him.

Keeys not only identified Appellant at trial but also identified him in a photo

array months before trial. The Facebook profile bearing Appellant’s

photographs provides further evidence that he was the assailant. The

Facebook account had a unique URL of “george.westbrook.71” and was

3 We also note that one of the warrants (Search Warrant 181966) did identify

a physical address: a T-Mobile corporate office located at 4 Sylvan Way, Parsippany, NJ 07054.

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associated with the phone number that Appellant used to communicate with

Keeys on the day of the assault. Finally, Nelson’s testimony established that

Appellant used the same phone number to communicate with him that

Appellant used to communicate with Keeys. Since all of this evidence was

independent of the phone records, Appellant’s conviction did not rise or fall on

the admission of these records. The records were merely cumulative of other

evidence that firmly established Appellant’s guilt. There is no reasonable

probability that the verdict would have been different had the records not been

admitted. Thus, the PCRA court properly denied relief on Appellant’s first

Next, Appellant argues that trial counsel was ineffective for failing to

object to admission of the cell phone records on grounds of hearsay and lack

of authenticity. The PCRA court determined that Appellant’s argument fails

because Appellant cannot demonstrate prejudice. The court reasoned:

Agent [William] Shute was qualified as an expert in historical cell tower analysis at [Appellant]’s trial. See N.T., 05/19/2016, at 3- 52. He opined that, after analyzing the data in the call detail records contained within the T-Mobile telephone records at issue, he discovered [Appellant]’s mobile phone number was near Mr. Keeys’ residence around the time Mr. Keeys was shot. See id., at 53-74, especially 64-73.

Agent Shute’s expert testimony was permissible apart from whether the telephone records he reviewed were admitted into evidence because experts in historical cell tower analysis utilize call detail records to form an opinion about the geographical area of where a person’s mobile telephone is located when a call is made. See Pa.R.E. 703 (“An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would

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reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.”); Pa.R.E. 705 and Comment (explaining otherwise inadmissible facts and data supporting an expert opinion are considered only to explain basis for expert’s opinion, not as substantive evidence); and N.T., 05/19/2016, at 39-49 (Agent Shute’s testimony concerning the role of call detail records in criminal investigations); see, Commonwealth v. Aumick, 297 A.3d 770, 777 (Pa. Super. 2023) (noting SOAB expert opinion falls within the general rules regarding expert witnesses and “the facts or data consulted need not be admissible for the expert’s opinion to be admitted”) (citing Commonwealth v. Prendes, 97 A.3d 337, 360 (Pa. Super. 2014) (explaining evidentiary rules permit experts to rely on hearsay evidence, provided it is of a type typically relied on by experts in the relevant field), impliedly overruled on other grounds by Commonwealth v. Hvizda, 116 A.3d 1103 (Pa. 2015)). On the other hand, Agent Shute’s expert opinion at trial, which was rendered to a reasonable degree of professional certainty (see N.T., 05/19/2016, at 74:15-18), “is, itself, substantive evidence.” Aumick, 297 A.3d at 782 (citation omitted).

Further, Mr. Keeys testified unequivocally at trial that [Appellant] was the person who shot him. See N.T., 05/18/2016, at 68-70. That testimony alone prevents [Appellant] from establishing a reasonable probability that the result of his trial would have been different had his trial counsel objected to admissibility of the T- Mobile telephone records on inadmissible hearsay and/or insufficient authentication grounds.

Supplemental Opinion, 5/8/26, at 3-4 (cleaned up).

We agree with this reasoning and conclude that Appellant’s second

argument fails due to his inability to demonstrate prejudice.

For these reasons, we affirm the PCRA court’s order denying Appellant

relief.

Order affirmed.

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Date: 6/30/2026

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