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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
STEPHEN THOMAS WILLIAMS JR., :
:
Appellant : No. 3343 EDA 2014
Appeal from the Judgment of Sentence November 3, 2014
In the Court of Common Pleas of Montgomery County
Criminal Division No(s).: CP-46-CR-0004783-2012
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 30, 2015
Appellant, Stephen Thomas Williams, Jr., appeals from the judgment
of sentence of, inter alia, a one-year probation and restitution entered in the
Montgomery County Court of Common Pleas after his conviction for theft by
unlawful taking, theft of property lost, and receiving stolen property at a
nonjury trial.1 Appellant claims: (1) the evidence was insufficient to sustain
the convictions; (2) the trial court erred in admitting testimony regarding
the results of a “Find My iPhone” search; and (3) the verdicts were against
the weight of the evidence.2 We find an abuse of discretion in the trial
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3921(a), 3924, 3925(a).
2
We have reordered the claims set forth in Appellant’s brief.
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court’s denial of the Appellant’s motion for a new trial, vacate the judgment
of sentence, and remand for further proceedings consistent with this
memorandum.
The trial court summarized the Commonwealth’s trial evidence as
follows:
[The complainant] was working at Genesis HealthCare
in Glenside, Montgomery County, on April 28, 2012. As
part of his duties, he was delivering a cart from the second
floor to the maintenance office in the basement of the
building. He proceeded to the basement using an elevator.
Prior to entering the elevator, [the complainant] checked
the time on his iPhone 4s and put it back in his pocket.
After exiting the elevator, and while pushing the cart up a
steep ramp toward the maintenance office, he heard a
sound. Within twenty seconds, he arrived at the
maintenance office, found his iPhone was missing and ran
back to the area where he had heard the sound to look for
it.
While looking for the iPhone, [the complainant]
encountered [Appellant], who asked if he had lost
something. [The complainant] did not see anyone else in
the area. [Appellant] began to help [the complainant] look
for the iPhone. When it was not located, [the complainant]
returned to the maintenance office to call the iPhone, but it
went directly to voicemail. [The complainant] then used a
computer in the maintenance office to access a “Find My
iPhone”[3] application. The application did not indicate a
3
As discussed below, the complainant described the application as follows:
“It is an app that you use for your Apple devices that show you exactly
where the location at for the device that you may have lost. That is why it is
called the Find My iPhone app.” N.T., 11/3/14, at 12. We take notice of the
following:
One important aspect of smartphone technology is the
ability of these devices to identify, in real time, their
geographic location, which data can be shared with certain
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location for the iPhone at that time. A couple of days later,
[the complainant] tried the application again and it tracked
the iPhone to 436 Manton Street in Philadelphia. [The
complainant] learned this was [Appellant’s] address and
made a report to police. In addition to the address
matching information in [Appellant’s] employment records,
police used a LexisNexis program that indicated
[Appellant’s] address was 436 Manton Street in
Philadelphia. The database of the Pennsylvania
Department of Motor Vehicles also indicated the same
address for [Appellant].
programs and providers to enable advanced functions. At
present, three techniques are used to generate this
information. The collection of cell-site data—the
identification of the radio cell tower or towers nearest to
the device—is the oldest geolocation technology . . . .
Cell-site location is arguably the least precise of the three
methods currently used, though that precision can be
substantially enhanced through triangulation of signals
from multiple towers. Global Positioning System (GPS)
data is a technique by which radio signals are received by
the smartphone from a system of satellites in
geosynchronous orbit and interpreted by programs to
provide highly accurate location data. Wireless geolocation
operates by comparing the access points used by the
smartphone to connect to the Internet against a database
of known router locations. Depending on the quality of the
information in the database, this method, though similar to
cell-site location, can be far more accurate because
wireless transmissions have a shorter range than cellular
transmissions. Additional emerging geolocation
technologies, including Bluetooth beacons, reportedly have
the potential to pinpoint the location of a phone to a
matter of inches.[ ]
In re Smartphone Geolocation Data Application, 977 F. Supp. 2d 129,
137-38 (E.D.N.Y. 2013).
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Trial Ct. Op., 2/5/15, at 1-2. We note the phone was not recovered by the
complainant or the police, and the complainant purchased a replacement
phone.
Appellant testified at trial. He denied seeing the complainant on April
28th or picking up his phone. He conceded his employment and official
records listed his address as 436 Manton Street, but asserted he did not live
there at the time of the incident. Appellant also called a coworker to testify
that he no longer resided at 436 Manton Street.
The trial court, on November 3, 2014, found Appellant guilty of theft
by unlawful taking, theft of property lost, and receiving stolen property.
Appellant waived the preparation of a presentence report, and the court
sentenced him that same day to concurrent probationary terms of one year
for theft by unlawful taking and receiving stolen property, restitution of
$211.99, a fine of $250.00, and costs. Appellant timely filed a post-
sentence motion challenging the weight of the evidence, which the trial court
denied on November 19, 2014.
Appellant timely filed a notice of appeal and complied with the trial
court’s order to submit a Pa.R.A.P. 1925(b) statement. This appeal follows.
Appellant presents the following three questions, which we have
reordered for review:
ARE APPELLANT’S CONVICTIONS FOR THEFT BY
UNLAWFUL TAKING, THEFT OF PROPERTY LOST OR
MISPLACED, AND RECEIVING STOLEN PROPERTY
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SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE OF
RECORD?
DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN
IT PERMITTED, OVER DEFENCE OBJECTION, TESTIMONY
REGARDING THE VICTIM’S USE OF A “FIND MY iPHONE”
APPLICATION TO ALLEGEDLY FIND THE LOCATION OF THE
HIS LOST CELLULAR TELEPHONE?
DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN
IT DENIED APPELLANT’S MOTION FOR A NEW TRIAL ON
THE GROUND THAT THE GUILTY VERDICTS WERE
AGAINST THE WEIGHT OF THE EVIDENCE?
Appellant Brief at 5.
Appellant first claims the evidence was insufficient to sustain his
conviction for theft. According to Appellant, the evidence of his “mere
presence” and “the address [the complainant] allegedly obtained using the
‘Find My iPhone’ application . . .” was too conjectural and speculative to
conclude he took and kept the phone. Id. at 42-43. “The key piece of
evidence” was the complainant’s testimony that a “computer programme
told him that his missing cellular telephone was located at 436 Manton
Street in Philadelphia.” Id. at 38-39. “There was no law enforcement
co[rroboration] of the accuracy of the information [the complainant] claims
he received from his use of the ‘Find My iPhone’ and the missing cellular
telephone was never found in Appellant[’s] possession or in a location that
could be connected to him.” Id. at 42. No relief is due.
Our standards of review are well-settled.
In reviewing a claim regarding the sufficiency of the
evidence, an appellate court must determine whether the
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evidence was sufficient to allow the fact finder to find
every element of the crimes charged beyond a reasonable
doubt. In doing so, a reviewing court views all the
evidence and reasonable inferences therefrom in the light
most favorable to the Commonwealth. Furthermore, in
applying this standard, the Commonwealth may sustain its
burden of proof by means of wholly circumstantial
evidence. When performing its review, an appellate court
should evaluate the entire record and all evidence
received is to be considered, whether or not the trial
court’s rulings thereon were correct. Additionally, we
note that the trier of fact, while passing on the credibility
of witnesses and the weight of the evidence, is free to
believe all, part, or none of the evidence.
Commonwealth v. Galvin, 985 A.2d 783, 789 (Pa. 2009) (citations
omitted) (emphases added); see also Commonwealth v. Yong, 120 A.3d
299, 311 (Pa. Super. 2015) (reiterating this Court will not review sufficiency
claim based on diminished record.).
“To uphold a conviction for theft by unlawful taking, the
Commonwealth must establish the accused ‘unlawfully takes, or exercises
unlawful control over, movable property of another with intent to deprive
him thereof.’” Galvin, 985 A.2d at 791 (quoting 18 Pa.C.S. § 3921(a)).
Theft of property lost is defined as follows:
A person who comes into control of property of another
that he knows to have been lost, mislaid, or delivered
under a mistake as to the nature or amount of the
property or the identity of the recipient is guilty of theft if,
with intent to deprive the owner thereof, he fails to take
reasonable measures to restore the property to a person
entitled to have it.
18 Pa.C.S. § 3924. “Receiving stolen property is established by proving that
the accused ‘intentionally receives, retains, or disposes of movable property
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of another knowing that it has been stolen, or believing that it has probably
been stolen, unless the property is received, retained, or disposed of with
intent to restore it to the owner.’” Galvin, 985 A.2d at 792 (quoting 18
Pa.C.S. § 3925(a)).
Instantly, Appellant’s arguments focus on the evidence that he took
control of the phone after the complainant dropped it. The trial evidence,
when viewed in a light most favorable to the Commonwealth, provides three
pieces of circumstantial evidence that Appellant took control of the phone.
First, the complainant dropped his phone in the basement hallway between
the elevator and the maintenance office. N.T., 11/3/14, at 8, 10, 17.
Second, Appellant was the only person the complainant saw in that location
when he returned to look for his phone less than a minute later. Id. at 10.
Third, a tracking application located the phone at Appellant’s address several
days later. Id. at 12-13.
Because a review of the sufficiency of the evidence focuses on the
quantum of evidence based on an undiminished record, see Galvin, 985
A.2d at 789; Yong, 120 A.3d at 311, we do not reassess or discount the
record evidence that the complainant’s electronic search revealed the phone
was located at Appellant’s address. Thus, the totality of the circumstances
provided an adequate basis for the trial court to infer Appellant took control
of the complainant’s phone.
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Appellant next claims the trial court erred in permitting the
complainant to testify regarding the results of the tracking application. He
argues the complainant’s “testimony as to what the computer application
told him does not fall within any of the exceptions” to the general rule
excluding hearsay. Appellant’s Brief at 27. Further, he contends the
complainant’s testimony violated the “best evidence rule” and suggests “the
Commonwealth was required to produce either a copy of the computer
screen . . . or a computer printout” of the results. Id. at 28-29.
In response, the trial court asserts Appellant waived his hearsay
argument. Trial Ct. Op. at 6. It suggests it properly ruled there was an
adequate foundation to admit the complainant’s testimony, “subject to a
determination of its weight.” Id. The court further suggests “the best
evidence rule did not apply” because the complainant did not have the
means to generate an original writing and there was no evidence of a bad
faith failure to produce a writing. Id. at 6-7.
The Commonwealth notes Appellant “alluded to, but never specifically
raised, a hearsay objection” at trial. Commonwealth’s Brief at 9. The
Commonwealth, arguendo, notes that the complainant’s testimony was not
hearsay because it established the investigating detective’s course of
conduct when confirming Appellant’s address. Id. at 11-12. As to
Appellant’s “best evidence” argument, the Commonwealth agrees with the
trial court that an original writing was not required because “there was no
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recording of the results of the tracking application.” Id. at 14. Lastly, the
Commonwealth argues any error in the admission of the complainant’s
testimony was harmless. Id. at 19-20.
We first consider whether Appellant has waived his hearsay argument.
Appellant framed his objections to the subject testimony as follows:
[Appellant’s Counsel]: I have an oral motion in limine to
exclude any testimony regarding a GPS tracking system
that is vaguely referenced in the Affidavit of Probable
Cause.
THE COURT: What is the basis of your objection?
* * *
[Appellant’s Counsel]: Judge, the Affidavit of Probable
Cause makes a vague reference to, quote, GPS tracking
feature. And it is alleged that this tracking feature tracked
the missing phone to a particular address.
So what we have is an out-of-court basically statement
used to—as proof of the matter asserted.
It would be the same thing and they provided no
discovery on the GPS tracking.
* * *
. . . It just says GPS tracking feature, Your Honor. And I
would submit to the Court much like a video that, first of
all, they need a foundation. They need to lay a foundation
that this GPS tracking system is actually something, that it
is legitimate, that it has some sort of accuracy.
And I would submit that I should be able to cross-
examine on that foundation.
THE COURT: Well, I think you do. But that will go to the
weight of the evidence. I am going to deny your motion.
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N.T. at 3-5. After the trial court’s ruling, Appellant’s counsel placed the
following on the record: “[M]y objection to it is based on two reasons: One,
the lack of foundation; and two, the best evidence rule.”4 Id. at 6.
We reiterate,
Pursuant to Pennsylvania Rule of Appellate Procedure 302,
“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.” Pa.R.A.P.
302(a). With respect to evidentiary rulings, “Error may
not be predicated upon a ruling that admits [ ] evidence
unless . . . a timely objection, motion to strike[,] or motion
in limine appears of record, stating the specific ground of
objection, if the specific ground was not apparent from the
context[.]” Pa.R.[E.] 103(a)(1).
Commonwealth v. Parker, 104 A.3d 17, 28 (Pa. Super. 2014), appeal
denied, 117 A.3d 296 (Pa. 2015). “[A]n appellant may not raise a new
theory for an objection made at trial on his appeal.” Commonwealth v.
Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (citation omitted).
Appellant’s counsel initially suggested the complainant’s testimony was
hearsay because the purported location of the phone was being admitted for
the truth of the matter asserted. Nevertheless, his arguments in support of
the objection focused on a narrow set of claims based on foundation and the
best evidence rule. See N.T. at 3-5. Thus, Appellant’s current hearsay
argument presents a new theory not properly developed at trial. See
Parker, 104 A.3d at 28. Accordingly, we are constrained to find Appellant’s
4
Appellant’s counsel renewed his objection during the complainant’s
testimony. However, those objections the same as his motion in limine.
See N.T. at 11, 13.
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hearsay argument waived, but will address his best evidence argument.
See id.; N.T. at 6.
Our standard of review is as follows:
When ruling on a trial court’s decision to grant or deny a
motion in limine, we apply an evidentiary abuse of
discretion standard of review. The admission of evidence
is committed to the sound discretion of the trial court, and
a trial court’s ruling regarding the admission of evidence
will not be disturbed on appeal “unless that ruling reflects
‘manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly erroneous.’”
Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pa. Super. 2010) (citations
omitted).
Pennsylvania Rule of Evidence 1002 states: “An original writing,
recording, or photograph is required in order to prove its content unless
these rules, other rules prescribed by the Supreme Court, or a statute
provides otherwise.”5 Pa.R.E. 1002. Rule 1004, however, provides:
5
Pennsylvania Rule of Evidence 1001 provides:
(a) A “writing” consists of letters, words, numbers, or their
equivalent set down in any form.
(b) A “recording” consists of letters, words, numbers, or
their equivalent recorded in any manner.
* * *
(d) An “original” of a writing or recording means the
writing or recording itself or any counterpart intended to
have the same effect by the person who executed or
issued it. For electronically stored information, “original”
means any printout—or other output readable by sight—if
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An original is not required and other evidence of the
content of a writing, recording, or photograph is admissible
if:
(a) all the originals are lost or destroyed, and not by
the proponent acting in bad faith;
(b) an original cannot be obtained by any available
judicial process;
(c) the party against whom the original would be
offered had control of the original; was at that time put
on notice, by pleadings or otherwise, that the original
would be a subject of proof at the trial or hearing; and
fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not
closely related to a controlling issue.
Pa.R.E. 1004 (a)-(d).
“[I]f the originals are not available at trial in criminal cases, through
no fault of the Commonwealth, secondary evidence is permissible.”
Commonwealth v. Dent, 837 A.2d 571, 589 (Pa. Super. 2003) (citation
omitted). “If the Commonwealth does not need to prove the contents of the
writing or recording to prove the elements of the offense charged, then the
Commonwealth is not required to introduce the original writing or
recording.” Id. at 590 (citation omitted).
Following our review, we find no reversible error. As noted by the
Commonwealth, the complainant’s testimony was admissible for non-
it accurately reflects the information. An “original” of a
photograph includes the negative or a print from it.
Pa.R.E. 1001(a)-(b), (d).
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hearsay purposes, that is, to establish a foundation for a course of conduct
and not prove an element of an offense. See Commonwealth’s Brief at 11-
12. Thus, an “original” was unnecessary to show why the detective initiated
an investigation into Appellant’s association with 436 Manton Street. See
Pa.R.E. 1002, 1004(d).
Moreover, even if the trial court admitted the complainant’s testimony
for the truth of the matter asserted, we discern no abuse of discretion in its
reasoning that there were adequate explanations for the absence of an
original writing. See Pa.R.E. 1004(a), (b); cf. Commonwealth v. Lewis,
623 A.2d 355, 358-59 (Pa. Super. 1993) (holding best evidence rule
precluded officer’s “secondary” evidence that video recording showed
defendant’s companion taking item from store shelf and explanation for
unavailability of tape was unsatisfactory). Thus, we agree with the trial
court that the best evidence rule did not preclude the admission of the
complainant’s testimony regarding the results of his electronic search for his
phone and that Appellant’s objections went to the weight rather than
admissibility.
Appellant lastly claims the verdicts were against the weight of the
evidence. He emphasizes that the complainant testified he had a “hunch”
that Appellant had taken his phone, but he failed to consider he lost his
phone in a different location. Appellant’s Brief at 47-48. He also criticizes
the limited investigation by police, which merely confirmed that the address
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obtained by the complainant was that of Appellant’s. Id. at 48-49.
Appellant thus asserts that the trial court abused its discretion when denying
his post-sentence motion seeking a new trial. Relief is due.
The following precepts govern our review.
A claim alleging the verdict was against the weight of
the evidence is addressed to the discretion of the trial
court. Accordingly, an appellate court reviews the exercise
of the trial court’s discretion; it does not answer for itself
whether the verdict was against the weight of the
evidence. It is well settled that the [fact-finder] is free to
believe all, part, or none of the evidence and to determine
the credibility of the witnesses, and a new trial based on a
weight of the evidence claim is only warranted where the .
. . verdict is so contrary to the evidence that it shocks
one’s sense of justice. In determining whether this
standard has been met, appellate review is limited to
whether the trial judge’s discretion was properly exercised,
and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of
discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations
and internal quotation marks omitted).
The trial court addressed Appellant’s weight of the evidence claim as
follows:
The evidence credited by this court, including the
testimony of [the complainant] and Detective John Cotton,
demonstrates [Appellant] came into possession of the
property of [the complainant] and kept it, despite
know[ing] it rightfully belonged to [the complainant]. This
court did not credit [Appellant’s] testimony regarding the
incident, particularly in light of his denial that he did not
help [the complainant] look for the iPhone and was not
even in the same area of the building at the time.
Similarly, this court did not credit the testimony of
[Appellant] and his co-worker regarding his address at the
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time of the offense. Rather, this court found credible the
testimony demonstrating that work records and public
records linked [Appellant] to 436 Manton Street in
Philadelphia. . . .
* * *
As discussed previously, the evidence credited by this
court . . . amply demonstrated that [Appellant] came into
possession of the property of [the complainant] and kept it
. . . . [Appellant] therefore is not entitled to relief on his
challenge to the weight of the evidence.
Trial Ct. Op. at 4-5, 8.
As noted above, circumstantial evidence was critical to the trial court’s
denial of Appellant’s motion for a new trial. Although our review reveals
inconsistencies in the complainant’s testimony regarding where he dropped
the phone in the basement,6 it was within the province of the trial court, as
finder of fact, to resolve those inconsistencies. Further, the gist of the
complainant’s testimony was unequivocal: he dropped his phone somewhere
in the basement hallway and when he searched for the phone less than a
minute later, Appellant was the only person he saw in the area.
However, the complainant’s testimony regarding the day he lost his
phone only established Appellant’s presence in the area of the lost phone.
6
For example, the complainant testified he believed he dropped his phone
while pushing a cart up a ramp and heard an unusual sound. However, he
testified on direct examination that he went from the elevator through a
door to the ramp. Later, on cross-examination, he stated he went down the
ramp and through the door to look for his phone, and then saw Appellant on
the other side of the door. He further indicated Appellant looked like he was
coming out of the bathroom.
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The complainant’s electronic tracking of his phone was the critical evidence
underlying Appellant’s conviction for unlawfully taking possession of the
phone.
As the proponent of the evidence, the Commonwealth bore the burden
of adducing indicia of reliability supporting the complainant’s testimony
regarding the results from the tracking application. Cf. Commonwealth v.
Bujanowski, 613 A.2d 1227, 1233-34 (Pa. Super. 1992). The record,
however, is devoid of any foundation upon which to conclude that his search
was reliable or could produce the purported result. The complainant
described the technology as one “that you use for your Apple devices that
show you exactly where the location at for the device that you may have
lost.” See N.T. at 12. The investigating detective testified only that when
the complainant reported the incident, he passed along a handwritten note
bearing the 436 Manton Street address. The Commonwealth adduced no
further evidence regarding the actual capabilities of the application used,
i.e., whether it could produce a specific street address, rather than depict a
location on a map. Further, the Commonwealth failed to establish a
foundation that the complainant possessed the experience or knowledge to
use the application properly. Such indicia of reliability and authenticity
were particularly important given the absence of any objective evidence of
results of a tracking application.
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Further, the record reveals no evidence establishing how long the
complainant was able to track the phone at the location or address or
whether the phone was stationary or moving. Thus, even assuming the
complainant’s testimony was reliable, it established no more than a passing
connection to the purported address.
The totality of the evidence in this appeal may have been “so clear,
direct, weighty, and convincing as to enable [the fact-finder] to come to a
clear conviction, without hesitancy, of the truth of the precise facts [in]
issue.” See Commonwealth v. Maldonado, 838 A.2d 710, 715 (Pa. 2003)
(citations omitted) (discussing clear and convincing standard). However, the
beyond a reasonable doubt standard requires more. That latter standard
applies in criminal cases “due to the gravity of the private interests
affected[, and] a societal judgment that, given the severe loss that occurs
when an individual is erroneously convicted of a crime, the public should
bear virtually the entire risk of error.” Id. “The heavy standard applied in
criminal cases manifests our concern that the risk of error to the individual
must be minimized even at the risk that some who are guilty might go free.”
Id. at 716 (citation omitted).
In light of the foregoing, the trial court’s review of the record and its
application of the relevant burden of proof evince an abuse of discretion in
its denial of Appellant’s motion for a new trial. Further, having reviewed the
entire record, a conviction for unlawfully taking the complainant’s phone
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based on the Commonwealth’s decision to prosecute based upon its
acceptance of a hunch, a handwritten note with Appellant’s address of
questionable foundation, and a confirmation that the address was Appellant’s
“shocks the conscience.” Thus, the court’s order denying a new trial must
be reversed.
Judgment of sentence vacated. Case remanded for further
proceedings. Jurisdiction relinquished.
Judge Shogan joins the memorandum.
Judge Mundy notes dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2015
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Com. v. Williams, S.
Combined Opinion