Commonwealth v. Powell

J-A14026-17
2017 PA Super 303

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

BREON POWELL

Appellant No. 1312 EDA 2014

Appeal from the Judgment of Sentence December 9, 2013
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003591-2012

BEFORE: BENDER, P.J.E., BOWES AND SHOGAN, JJ.

OPINION BY BOWES, J.: FILED SEPTEMBER 25, 2017

Breon Powell appeals from the judgment of sentence of life in prison

and a concurrent sentence of two-and-one-half to five years incarceration

imposed after he was convicted of first degree murder, robbery, conspiracy

to commit robbery, burglary, conspiracy to commit burglary, and possession

of an instrument of crime. We affirm.

The facts underlying this matter as are follows. On December 28,

2011, Appellant, Jermaine Jackson, Kazair Gist, Tatyana Henderson, and

Danasia Bakr traveled from Trenton, New Jersey to Levittown, Bucks County,

in order to rob Daniel DeGennaro at gunpoint. While casing Mr.

DeGennaro’s residence, Ms. Henderson placed a call to a phone number

listed on a sign advertising the sale of a used-car, which was parked in the

rear of Mr. DeGennaro’s home. Unbeknownst to the group, Mr. DeGennaro
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allowed a neighbor to park the car in his back driveway. Ms. Henderson

made contact with Mr. DeGennaro’s neighbor, Nicholas Miller, and feigned

interest in the car.

Shortly thereafter, Appellant, Mr. Jackson, and Mr. Gist entered Mr.

DeGennaro’s home. Ms. Henderson operated as a look-out, and Ms. Bakr

remained in the car. The three men entered Mr. DeGennaro’s residence

armed with a shotgun and a nine millimeter handgun, and intended to

recover money that the victim purportedly owed to Mr. Jackson. During a

scuffle, the conspirators fired two shots at Mr. DeGennaro, striking him once.

Mr. DeGennaro perished from the gunshot. The three men fled from the

scene, met with the women, and returned to New Jersey.

An investigation ensued. Mr. Miller reported to police that he received

a strange phone call regarding the used vehicle parked in Mr. DeGennaro’s

backyard shortly before his death. Investigating officers reviewed phone

records and call logs and established that Ms. Henderson had placed the call

to Mr. Miller from an area within 300 yards of Mr. DeGennaro’s house. A

review of Ms. Henderson’s phone records also indicated that she had

communicated with Ms. Bakr and Mr. Jackson around the time of the

incident. Further investigation placed those phones, as well as Mr. Gist’s

and Appellant’s phone, in close vicinity to Mr. DeGennaro’s home at the time

in question. Eventually, the police utilized wiretaps to monitor the cellular

handsets associated with Ms. Henderson, Ms. Bakr, and Mr. Jackson wherein

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they recorded evidence of the murder and attempted cover up. Ms. Bakr

also made statements to police implicating herself, Ms. Henderson, Mr.

Jackson, Mr. Gist, and Appellant, in the shooting death of Mr. DeGennaro.

On March 29, 2012, Appellant was arrested. He filed a motion to

suppress the wiretap evidence, contending that the interception failed to

conform to the dictates of the Wiretap Act. Specifically, Appellant argued

that the officers made no attempt to minimize the interception of the

communications. The trial court denied that motion. On May 29, 2013, the

Commonwealth filed a motion for the introduction of prior bad acts evidence

seeking, in part, the introduction of evidence related to an alleged robbery,

which occurred shortly before Mr. DeGennaro’s death, wherein Appellant,

Ms. Henderson, Ms. Bakr, and Mr. Jackson accosted a drug dealer in

Morrisville. The court denied that motion by order dated August 1, 2013.

Following trial, a jury acquitted Appellant of conspiracy to commit

criminal homicide, and found him guilty of the aforementioned offenses.

Thereafter, the court sentenced Appellant to life in prison on one count of

first degree murder, a concurrent sentence of two-and-one-half to five years

imprisonment for possession of an instrument of crime, and no further

penalty at the remaining counts. Appellant filed a timely post-sentence

motion, which was denied on April 3, 2014. He then filed a timely notice of

appeal to this Court. After an extended delay during which the transcripts of

Appellant’s lengthy trial were produced, Appellant complied with the trial

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court’s order to file a Rule 1925(b) concise statement of matters complained

of on appeal. On January 22, 2016, the trial court authored its Rule 1925(a)

opinion. This matter is now ready for our review.

Appellant raises six issues for our consideration:

A. Was it error constituting a violation of due process under PA
CONST Art. 1 § 9 and U.S.C.A. Const. Amend. 14 to allow an
accomplice’s uncorroborated testimony that [Appellant] had
been involved in a prior robbery with the same conspirators
as recently as 4 days before this offense?

B. Should a mistrial have been granted because the
prosecution’s summation was in violation of due process
under PA CONST Art. 1, § 9 and U.S.C.A.Const. Amend. 14?

C. Was it error to allow photographs of [Appellant] and his
codefendants at a firing range and huddled around two
targets with bullet holes in them, rejecting an offer to
stipulate that he used his phone at a business establishment
located there?

D. Was it error to rule witness [Dennis] Leighton qualified as an
expert in decoded language and error to allow his
interpretation of codefendants’ words?

E. Should wiretaps of Appellant’s and co-conspirators’ text
messages and phone calls have been suppressed due to the
failure to minimize the wiretaps in violation of U.S.C.A.Const.
Amend. 4 and PA CONST Art. 1, § 8?

F. Was it error to allow Detective Coffman’s unqualified
testimony as an expert in the analysis of cell tower coverage
and cell phone technology?

Appellant’s brief at 6-7.

In his first issue, Appellant asserts that the trial court erred by

permitting testimony regarding a previous robbery in which he allegedly

participated with Ms. Henderson, Ms. Bakr, and Mr. Jackson. The

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admissibility of evidence is a matter left to the sound discretion of the trial

court. Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017). We do

not disturb evidentiary rulings absent an abuse of that discretion. Id. In

addition, “evidence of prior bad acts, while generally not admissible to prove

bad character or criminal propensity, is admissible when proffered for some

other relevant purpose so long as the probative value outweighs the

prejudicial effect.” Id. (citation omitted); Pa.R.E. 404(b). Further, we note

that a “litigant opens the door to inadmissible evidence by presenting proof

that creates a false impression refuted by the otherwise prohibited

evidence.” Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa.Super.

2013) (citation omitted).

The trial court found that Appellant opened the door to testimony

regarding his participation in the prior robbery, which occurred shortly

before the events in question. It highlighted that, during trial, Appellant

“tried to lead the jury to believe that Ms. Henderson had no relationship with

[Appellant.]” Trial Court Opinion, 1/22/16, at 63. It determined that such

testimony was permissible to “correct the untrue impression that was

created on the record that Ms. Henderson and [Appellant] had no

relationship and that Ms. Bakr, Ms. Henderson, Mr. Jackson and/or Devon

Clark were the only ones who committed all the robberies.” Id. at 61. In

permitting some testimony on the incident, the court limited the evidence to

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the date of the prior robbery, the people involved, and where it happened.

Finally, the court provided the following jury instruction:

You also have heard testimony in this case about an
alleged prior robbery at Orchard View Apartments. If you
believe the testimony of Tatyana Henderson in that regard, you
may not consider the testimony as evidence of [Appellant’s] guilt
in this case. Rather, I instruct you that this evidence was
offered solely to show the relationships between the individuals
who have been identified – between and among the individuals
identified in this case. You have not been given any details of
this alleged robbery, nor should you draw any inferences
regarding the circumstances of the robbery. Indeed, you must
not consider it as evidence of guilt or for any other purpose
other than the one I have just given you. If you do not believe
Tatyana’s testimony in this regard, you must disregard this
testimony and any implication regarding the relationships of the
parties.

Id. at 65; N.T. 10/4/13 (P.M. Session), at 31-32.

Appellant notes that, prior to trial, the court ruled that evidence of the

earlier robbery was inadmissible and maintains that he did not otherwise

open the door to such evidence. He argues that, since Ms. Henderson only

testified to dissimilar crimes she committed with Mr. Jackson and Ms. Bakr,

he did not open the door to testimony regarding the prior robbery.

Appellant claims that, contrary to the court’s findings, his line of questioning

did not create an impression that Appellant had no relationship with Ms.

Henderson or that he was uninvolved in previous crimes. Rather, he

asserts, without further development, “the questions do not seem to create

that implication in the slightest.” Appellant’s brief at 27. Finally, Appellant

contends that, even if he had opened the door, the evidence was too

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prejudicial, the court should have employed other means to remedy the

situation, and its failure to do so violated Appellant’s right to due process.

We find that Appellant opened the door to testimony regarding his

participation in the prior robbery since he created the false impression that

he had no relationship with Ms. Henderson. Appellant insisted throughout

trial that he was not involved in the incident leading to Mr. DeGennaro’s

death. In cross-examining Ms. Henderson, Appellant emphasized Ms.

Henderson’s relationships with Mr. Jackson, Ms. Bakr, and a third individual

not implicated in the murder, Devon Clark. See N.T. Trial, 9/23/13 (A.M.

Session), at 28-30, 32, 34, 41-61, 70-71, 77-80, 87-88; N.T. Trial, 9/23/13

(P.M. Session), at 3-4. When Appellant did explore his relationship with Ms.

Henderson, beyond their mutual participation in the death of Mr. DeGennaro,

it was generally to question whether any relationship existed, or whether she

had him confused with another person, Breon Holloway. See N.T. Trial,

9/23/13 (A.M. Session), at 64-65, 83-87.

In light of this testimony, we find that Appellant created an impression

that he had no relationship with Ms. Henderson. In order to rebut this false

impression, the trial court permitted Ms. Henderson to testify to the time,

place, and participants involved in the prior alleged robbery. In so allowing,

the court permitted Ms. Henderson to testify as follows:

Prosecutor: Do you recall being asked whether or not you
participated in a robbery before December 28, 2011?

Ms. Henderson: Yes.

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Prosecutor: How long before December 28, 2011 was that?

Ms. Henderson: It was between Thanksgiving and Christmas.

Prosecutor: Could you tell us where that took place?

Ms. Henderson: Orchard View Apartments in Morrisville.

Prosecutor: And could you please tell us each and every person
that was involved in that robbery?

Ms. Henderson: It was me, Danasia, Breon and Jermaine . . ..

....

Prosecutor: When you say Breon, what Breon are you talking
about? Did you know his last name at the time?

Ms. Henderson: No.

Prosecutor: Can you identify him?

Ms. Henderson: Yes.

Prosecutor: Is he here in court today?

Ms. Henderson: Yes.

Prosecutor: Can you point him out?

Ms. Henderson: He has on a blue shirt and a sweater on top
[Identifying Appellant].

N.T. Trial, 9/24/13 (P.M. Session), at 63-65.

This testimony elicited by the Commonwealth was probative of the

relationship between the co-conspirators, as it tended to show that Appellant

and Ms. Henderson did know each other, and that she had not confused him

with Breon Holloway. It was a permissible refutation of the impression

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created by Appellant that Ms. Henderson had no relationship with him.

Nypaver, supra. Furthermore, the trial court minimized the prejudicial

impact of this testimony by limiting Ms. Henderson’s testimony to the people

involved, the time, and the place of its occurrence. Thus, we do not find

that this testimony would “inflame the jury’s sensibilities with references to

matters other than the legal proposition relevant to the case.”

Commonwealth v. Ivy, 146 A.3d 241, 253 (Pa.Super. 2016) (citation

omitted).

Moreover, the trial court, as noted above, instructed the jury that the

testimony was only to be used to consider Ms. Henderson’s relationship with

Appellant, and nothing more. N.T. Trial, 10/4/13 (P.M. Session), at 31-32.

Appellant did not object to this instruction. Id. at 34. Any prejudice caused

by Ms. Henderson’s testimony was alleviated by the court’s instruction. As

such, we find that the trial court did not abuse its discretion in permitting

Ms. Henderson to testify to the details of this incident, and no relief is due.

Appellant next contends that the trial court erred in failing to grant a

mistrial based on the cumulative effect of the prosecutor’s alleged

misconduct during summation. Our review is guided by the following

principles:

The review of a trial court’s denial of a motion for a mistrial is
limited to determining whether the trial court abused its
discretion. An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will

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. . . discretion is abused. A trial court may grant a mistrial only
where the incident upon which the motion is based is of such a
nature that its unavoidable effect is to deprive the defendant of a
fair trial by preventing the jury from weighing and rendering a
true verdict. A mistrial is not necessary where cautionary
instructions are adequate to overcome prejudice.

Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014) (citation

omitted).

Further, when a motion for a mistrial is premised upon prosecutorial

misconduct, “it is within the discretion of the trial court to determine

whether a defendant has been prejudiced by misconduct or impropriety to

the extent that a mistrial is warranted.” Commonwealth v. Melvin, 103

A.3d 1, 26 (Pa.Super. 2014) (citation omitted). A new trial is warranted

where “the unavoidable effect of the conduct or language was to prejudice

the factfinder to the extent that the factfinder was rendered incapable of

fairly weighing the evidence and entering an objective verdict.” Id. We

have held, “[t]he Due Process Clause is not a code of ethics for prosecutors;

its concern is with the manner in which persons are deprived of their

liberty.” Id. As such, “[t]he touchstone is the fairness of the trial, not the

culpability of the prosecutor.” Id.

We have previously stated that “not every unwise remark by an

attorney amounts to misconduct or warrants the grant of a new trial.”

Commonwealth v. Scott, 146 A.3d 775, 778 (Pa.Super. 2016) (citation

omitted). Rather, “the prosecution is accorded reasonable latitude, may

employ oratorical flair in arguing its version of the case to the jury, and may

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advance arguments supported by the evidence or use inferences that can

reasonably be derived therefrom.” Id. at 778-779. Finally, “the prosecutor

is permitted to fairly respond to points made in the defense’s closing, and

therefore, a proper examination of a prosecutor’s comments in closing

requires review of the arguments advanced by the defense in summation.”

Id. at 779.

Appellant contests various aspects of the prosecutor’s closing

presentation, which we present together before analyzing separately. In

addition to briefly publishing a picture of the victim playing guitar during his

concluding remarks, the prosecutor made the following statements:

Prosecutor: But along those lines, ladies and gentlemen,
because I mean what I say, I feel that everything that you’ve
heard has some import, it’s for you to decide what type of
import it has, and I am sure, I hope, that you took notice
yesterday, which was a long day for all of us, I did not object
once. I bit my tongue, I held my words back.

....

Prosecutor: [Defense Counsel] tells you that this is a search for
doubt. It’s not a search for doubt. This is a search for the truth
as to what happened on December the 28th.

....

Prosecutor: Conversely, there were no objections from me when
[Defense Counsel] --

Defense Counsel: Objection to this.

Prosecutor: -- skillfully, surgically --

Defense Counsel: Objection. Objection.

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The Court: Sustained. Sustained. Don’t comment on the
strategies of the lawyers’ objections.

Prosecutor: Skillfully, surgically, and for days sliced her and
diced her --

Defense Counsel: Objection, Judge.

Prosecutor: -- to make her look --

The Court: Overruled.

....

Prosecutor: Think about this. You are going to rob a drug
dealer, what are the odds you are going to get away with it?
Well, if you don’t kill anybody, pretty good. Why? Drug dealers
don’t call the cops. That’s the cost of doing business. That is
also why there was no record of the Orchard View robbery when
Detective Beidler was asked about that. I submit to you that
was another robbery involving [Appellant], Jackson, Bakr, and
Henderson of a drug dealer just before the December 28th
robbery and murder.

....

Prosecutor: [Detective Munger] was accused, boldly accused by
[Defense Counsel] of planting this newspaper. I thought he was
gonna get up and strangle her.

....

Prosecutor: You haven’t heard too many good things about [the
victim]. But he was a father to Gia DeGennaro . . . He was a son
to his mom, he lived in his mother’s house. He was a brother.
He was a real, living, breathing person.

....

Prosecutor: I am now asking you to hold [Appellant]
accountable, you speak for Danny DeGennaro when you come
back here with your verdict.

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N.T. Trial, 10/4/13 (A.M. Session), at 11, 14, 52-53, 64-65, 89, 198-199,

202.

Appellant highlights the prosecutor’s characterization of the case as a

“search for truth” as opposed to a “search for doubts,” asserting that this

was especially injurious to the defense’s case in light of the jury’s supposed

tendency to give special weight to the Commonwealth’s arguments.

Appellant’s brief at 36. We note that Appellant did not object to the

prosecutor’s statement regarding the “search for truth.” Id. at 14. Hence,

this claim is waived. Pa.R.A.P. 302(a) (“Issues not raised in the lower court

are waived and cannot be raised for the first time on appeal.”).

Nonetheless, the prosecutor’s comment was a fair response to the defense’s

summation, which highlighted twenty-seven points of doubt, and the trial

court properly outlined the Commonwealth’s burden of proof during the jury

charge. N.T. Trial, 10/4/13 (P.M. Session), at 33. We assume that the jury

followed the court’s instruction. Commonwealth v. Bullock, 913 A.2d

207, 218 (Pa. 2006) (noting that jurors are presumed to have followed the

court’s instructions). Thus, even if this question were properly before us,

relief would not be due.

Appellant also argues that the prosecutor inappropriately provided the

jury with details of a prior robbery which were found inadmissible by the trial

court. Further, he insists that the prosecutor’s proclamation that he

purposely did not object during Appellant’s summation or at various points

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during testimony portrayed the defense in an unfair light and exceeded

permissible grounds of advocacy.

The trial court found that the prosecutor’s statements in this regard

were not overly prejudicial to Appellant. Moreover, it provided a curative

instruction after defense counsel objected to those statements. For

example, the court informed the jury that Appellant

[has] an absolute constitutional right, first of all, to a jury trial.
A constitutional right to confront their accusers and to advocate
zealously for their client. To the extent that there is any
inference that that is inappropriate . . . you’re to disregard that.
To the extent that counsel is arguing as to the credibility of the
witness on cross-examination, that’s appropriate.

N.T. Trial, 10/4/13 (A.M. Session), at 53-54; see also id. at 65, 106.

Defense counsel assented to the various instructions offered by the court in

order to cure the prejudice caused by the prosecutor’s various declarations,

and we find that these instructions adequately mitigated any potential

prejudice. Thus, this claim merits no relief.

Next, Appellant challenges the prosecutor’s use of a picture of the

victim, and statements regarding his family life, as an attempt to inflame the

passions of the jury. The trial court found that the picture and statement

were appropriate to establish the victim as a life in being. It noted that the

victim’s daughter, Gia DeGennaro, had offered testimony about her

relationship with her father and authenticated the picture shown to the jury.

N.T. Trial, 9/3/13, at 119, 129. We find that the prosecutor was merely

reiterating evidence presented at trial to support his position. Further, the

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statements he made about the victim and his family while presenting the

picture were mere oratorical flair, intended to inform the jury of context in

which the victim was murdered.

Finally, Appellant maintains that the prosecutor’s concluding remarks,

that the jury must “speak for” the victim, improperly urged the jury to

ignore its duty to decide the matter on the facts in evidence and the law.

Id. at 38-39. We observe that defense counsel did not timely object to the

prosecution’s invocation that the jury must speak on behalf of the victim.

N.T. Trial, 10/4/13 (A.M. Session), at 202-203. Thus, this claim is waived.

Pa.R.A.P. 302(a). Nevertheless, the court, at co-defendant’s counsel’s

insistence, did supplement the jury instructions as follows:

The lawyers, quite appropriately, at the end of any summation
make their final appeal to you. But I want to be clear about
something. The verdict that you reach here, as I have had said,
is not to speak for the person who was killed, that would not be
proper. [It] is not to in any way render some kind of judgment.
Your verdict must be based on evidence you have heard and the
legal standards that I have given you. That [is] what your
verdict must be.

N.T. Trial, 10/4/13 (P.M. Session), at 88-89. See Commonwealth v.

Tyson, 119 A.3d 353, 362 (Pa.Super. 2015) (noting “to alleviate the

potential for unfair prejudice, the court can issue a cautionary instruction to

the jury,” and that “[j]urors are presumed to follow the trial court’s

instructions.”). Thus, any potential prejudice caused by the prosecutor’s

statements was mollified by the court’s instruction.

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In summary, upon review of the certified record, we find that not one

of the statements, either alone or collectively, prejudiced the jury

unavoidably or formed in their minds a fixed bias or hostility that would

prevent them from properly weighing the evidence and rendering an

objective verdict. Melvin, supra. Where the prosecutor’s statements did

raise the specter of prejudice, the trial court formulated clear and specific

jury instructions to alleviate the harm. As such, the trial court did not abuse

its discretion in denying Appellant’s motion for a mistrial, and this claim fails.

Appellant’s third issue challenges the court’s decision to allow the

Commonwealth to offer evidence obtained when Appellant attended a firing

range with other individuals implicated in Mr. DeGennaro’s death. As an

evidentiary matter, we are again bound by our standard of review

enunciated above. Hicks, supra. Further, under the Pennsylvania Rules of

Evidence, “[t]he court may exclude relevant evidence if its probative value is

outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or

needlessly presenting cumulative evidence.” Pa.R.E. 403.

Appellant assails the trial court’s rulings with regard to three

photographs of him and his co-conspirators taken at a firing range, and

testimony offered by the Commonwealth that he used his cell phone while

there, which was corroborated with cell phone tower data. He claims that

the photographs and testimony were highly prejudicial, and such prejudice

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could have been avoided if the prosecutor had accepted his offer to stipulate

that the photographs were taken at “an establishment,” rather than

informing the jury that Appellant attended a firing range. Appellant’s brief at

44.

The trial court recounted the disputed evidence as follows:

During the trial, the [trial court] admitted three still images
taken from the video surveillance footage at Ready, Aim, Fire
[the shooting range]: C-102B, an image of Mr. Jackson,
[Appellant], Kazair Gist, and Devon Clark gathering around two
used shooting targets; C-102C, an image of [Appellant] on his
cell phone in the showroom; C-102D, an image showing the
handshake between the son of the shooting range owner and
[Appellant] after [Appellant] introduced himself.

Trial Court Opinion, 1/22/16, at 33. The court also heard testimony from

Detectives Gregory Beidler and Jack Slattery. Detective Beidler testified that

the cell tower data near the shooting range indicated that a call was made

by a cell phone linked to Appellant while Appellant was there. N.T. Trial,

9/11/13, at 33-38. This call was captured in the second photo offered into

evidence. Detective Slattery testified that he took part in the search of

Appellant’s residence where a used shooting target was discovered. Id. at

314. The detective stated that target discovered was the same target

pictured in one of the photographs from the shooting range. Id. at 315.

The court determined that the probative value of this evidence

outweighed its prejudicial effect. It noted that Appellant contested his

involvement in the crime, and specifically denied being present during its

commission, despite cell phone data to the contrary. The court observed

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that the image capturing Appellant on a phone established that he was

linked to that particular cell phone number when viewed in combination with

the cell tower data collected by the investigating officers. It further stated

that the pictures tended to corroborate the relationship among the co-

conspirators, and that the used shooting target connected Appellant to

evidence of the crime discovered during the search of his residence. With

regard to Appellant’s proposed stipulation, the court opined “[u]nfortunately

we can’t sanitize [the pictures], they didn’t choose to meet at a church.” Id.

at 294.

First, we note that Appellant’s proposed stipulation is a non sequitur in

our analysis. The court took reasonable measures to limit the impact of the

photographs in question, and it was not bound to rely on Appellant’s

proposed palliative measure. Moreover, even if the court had presented the

pictures to the jury as being taken in “an establishment,” as Appellant

suggests, the context and location of the pictures was obvious, and such

measures would have been an exercise in futility.

Next, we find the trial court did not abuse its discretion in determining

that the probative value of the photographs and testimony outweighed its

prejudicial effect. Appellant denied being present for the commission of the

crime, despite evidence to the contrary. Hence, cell phone tower data

tending to show that Appellant was connected to the cell phone located near

Mr. DeGennaro’s house on the night in question was highly probative in

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refuting his alibi defense. In addition, the photographs linked Appellant to

other suspects in the crime, specifically Mr. Jackson and Mr. Gist, and

evidence implicated in that crime, i.e., the shooting target that was later

found in Appellant’s bedroom with the gym bag used to transport the

shotgun employed in the killing. See N.T. Trial, 9/16/13, at 26-28

(describing how, after returning to New Jersey, Appellant placed the shotgun

in his gym bag before walking away). Thus, the trial court did not abuse its

discretion in permitting this evidence, and Appellant’s claim fails.

As Appellant’s fourth and sixth claimed errors contest the admission of

expert testimony offered by the Commonwealth, we consider them together.

It is well-settled that

[t]he admission of expert testimony is a matter of discretion for
the trial court, and will not be disturbed absent an abuse of
discretion. An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will,
as shown by the evidence of record, discretion is abused.

Commonwealth v. Poplawski, 130 A.3d 697, 718 (Pa. 2015) (citation and

quotation marks omitted). Expert testimony is governed by Pa.R.E. 702,

which reads,

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;

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(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the
relevant field.

Pa.R.E. 702. We have previously held that the “standard for qualifying an

expert is a liberal one: the witness need only have a reasonable pretension

to specialized knowledge on a subject for which expert testimony is

admissible.” Commonwealth v. Kinard, 95 A.3d 279, 288 (Pa.Super.

2014) (en banc) (citation omitted). Further, “[t]he witness’s expertise may

be based on practical, occupational, or other experimental training; it need

not have been gained through academic training alone.” Id.

Appellant alleges that the trial court erred in qualifying the

Commonwealth’s expert in interpreting coded language associated with

street culture, Officer Dennis Leighton, since the officer “did not know the

names of any actual persons that did studies on this subject, stated that

there were no learned treatises on the subject, that he had never lectured

on coded language associated with street culture just specifically to gangs[,

and he] held no certifications.” Appellant’s brief at 49. Appellant also takes

issue with Officer Leighton’s qualifications since the officer’s training and

knowledge centered largely upon gang activity. He claims that the officer’s

testimony in this regard “strongly injected the specter of gang activity into

the case[.]” Id. at 46. Thus, he concludes that the Commonwealth’s

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“exploration of this expert’s qualifications was to prejudice the jury with the

continuous barrage of testimony regarding gangs.” Id. at 49.

Instantly, the Commonwealth offered the testimony of Officer Leighton

as an expert in coded street language. It questioned him extensively

regarding his qualifications. Officer Leighton testified that he has been

employed by the Bristol Township police for eleven years. He was also

assigned to an FBI task force that conducted investigations into narcotics

distribution and violent crimes. Through his training, Officer Leighton gained

expertise dealing with “criminal street gangs, hate groups, outlaw

motorcycle gangs, [and] narcotics trafficking.” N.T. Trial, 9/19/13 (P.M.

Session), at 78. In addition, the officer had acquired special training in

interpreting coded language associated with street culture, including 400

hours of training from various law enforcement agencies. He attended

training seminars through his membership with the East Coast Gang

Investigator’s Association, and lectured on criminal street gangs on thirty-

two occasions. Officer Leighton stated that he developed his expertise in

coded language “through the trainings that I have attended, as well as

through my life experiences on the job; be it, through arrests, interviews of

cooperators, debriefing persons that we arrested and corroborators, things

of that nature.” Id. at 81. He was also familiar with street terminology

through his undercover work.

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We find no abuse of discretion in the qualification of Officer Leighton

as an expert in coded language associated with street culture. Officer

Leighton’s training and law enforcement experience indicated that he

possessed a reasonable pretension towards specialized knowledge beyond

that of the average layperson as it relates to coded street language, which

would aid the trier of fact in understanding the communications amongst the

co-conspirators herein. Kinard, supra. That the officer did not gain this

knowledge through learned treatises or academic publications is of no

moment, as his practical and occupational training is sufficient. Id.

With regard to Appellant’s contention that the discussion of Officer

Leighton’s qualifications unduly prejudiced the jury, we disagree. Following

the discussion of the officer’s qualifications, the court cautioned the jury as

follows:

Members of the jury, you will hear no evidence in this case that
either defendant is or ever has been a member of a street gang
or a hate group. The type of language used in the
communication presently during this trial is not evidence of any
kind of criminal activity, rather, you should consider the content
of the communications in light of all the evidence you will hear in
this case.

N.T. Trial, 9/19/13 (P.M. Session), at 83. Appellant did not object to this

cautionary instruction, and we presume the jury followed it. Tyson, supra.

Nevertheless, after the court cautioned the jury, the Commonwealth offered

no evidence through the officer implicating gang activity. Rather, Officer

Leighton’s testimony centered upon his interpretation of certain words

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utilized by Appellant’s co-defendant in text messages he sent shortly before

the incident in question. Hence, we find that the trial court did not abuse its

discretion in permitting Officer Leighton to opine on coded language

associated with street culture.

Appellant’s sixth issue contests the Commonwealth’s expert analysis of

cell tower coverage offered through Detective Joseph Coffman. Our

standard of review remains as stated above. Poplawski, supra. In

addition, “the proponent of expert scientific evidence bears the burden of

establishing all of the elements for its admission under Pa.R.E. 702, which

includes showing that the Frye rule, is satisfied.”1 Commonwealth v.

Freeman, 128 A.3d 1231, 1246 (Pa.Super. 2015) (citation omitted). Our

High Court has held that, “[i]n determining whether novel scientific evidence

is admissible in criminal trials, Pennsylvania courts apply the test set forth in

Frye.” Id. (citing Commonwealth v. Topa, 369 A.2d 1277, 1281 (Pa.

1977)).

Under Frye, “to be admissible, such evidence must have gained

general acceptance in the relevant scientific community.” Id. However, “a

Frye analysis is not triggered every time science enters the courtroom; it

only applies when an expert seeks to introduce novel scientific evidence.”

Commonwealth v. Dengler, 843 A.2d 1241, 1243 (Pa.Super. 2004).

____________________________________________

1
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).

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Finally, “[w]hile an expert need not use ‘magic words,’ the foundation of

[his] opinion must still be sturdy . . . the expert must base the substance of

[his] opinion on a reasonable degree of certainty instead of mere

speculation.” Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa.Super.

2015) (citation omitted).

Appellant’s argument is two-fold. First, he posits that the

Commonwealth did not sustain its burden of establishing that the detective’s

methodology was generally accepted in his field. Second, he asserts that

Detective Coffman failed to render his expert opinion within a reasonable

degree of scientific certainty. Thus, he concludes that the trial court erred in

permitting Detective Coffman to testify regarding cell tower and cell phone

data collected and analyzed during the investigation into Mr. DeGennaro’s

death.

Instantly, Appellant requested a Frye hearing to challenge, inter alia,

the basis of Detective Coffman’s testimony. The court held a hearing on that

motion on July 29, 2013. At that hearing, the court observed,

I have a general motion filed listing experts [and] saying
that the expert testimony is challenged. I have nothing else
before me at this point . . . However, it’s clear to me under
cases relied upon by the defense, as well as the case provided
by the Commonwealth that the defense, first, must have the
burden of setting this up in terms of saying that this is novel
scientific evidence.

N.T. Hearing, 7/29/13, at 15-16. The trial court determined that a Frye

hearing was not necessary at that juncture since Appellant had not made a

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showing that Detective Coffman’s testimony was not based on accepted

scientific methodology. In light of this discussion, the Commonwealth did

not present expert testimony at the hearing, and accordingly, it did not

produce testimony detailing the scientific basis behind Detective Coffman’s

cell phone data and tower analysis. The court then denied Appellant’s

motion without prejudice to refile. Id. at 35. Thereafter, Appellant did not

refile or otherwise attempt to prove that Detective Coffman’s expert

testimony relied on novel scientific evidence. Thus, the court did not hold a

Frye hearing, and the case proceeded to trial.

Nevertheless, Appellant maintains on appeal that the Commonwealth

bore the burden of establishing that Detective Coffman’s expert opinion was

based on information that was generally accepted in his field. We disagree.

We note that Pa.R.E. 702(c) incorporates the Frye standard. See Grady v

Frito-Lay, 839 A.2d 1038, 1042 (Pa. 2003) (noting that the Frye test “is

part of Rule 702.”). As such, the trial court need only analyze this element

of Rule 702 when Frye is implicated, that is, when novel scientific evidence

is at issue. As Appellant failed to demonstrate that Detective Coffman’s

testimony was based on novel scientific evidence, such a finding was

unnecessary. Commonwealth v. Safka, 95 A.3d 304, 307 (Pa.Super.

2014) (observing the Frye test is two-part, the first of which is, “the party

opposing the evidence must show that the scientific evidence is ‘novel’ by

demonstrating that there is a legitimate dispute regarding the reliability of

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the expert’s conclusions.”). Thus, the trial court did not abuse its discretion

in permitting this testimony.

The second facet of Appellant’s argument alleges that Detective

Coffman failed to render his expert opinion within a reasonable degree of

scientific certainty. Appellant argues that Detective Coffman merely

indicated that he was “reasonably sure” when he rendered his expert

opinion, rather than stating it within the requisite reasonable degree of

certainty. Appellant’s brief at 57. As this contention is belied by the record,

no relief is due.

At trial, Detective Coffman testified to certain radii he placed on a

map, which reflected the operational range of cell phone towers near Mr.

DeGennaro’s residence. Importantly, we note that a cell phone generally

relies on the tower with the strongest signal at the time a call or text

message is made. Thus, the cell phone tower range is probative of the

approximate location of a particular handset when a call is placed or a text

message is sent. Detective Coffman averred that he estimated the range of

each tower in question based on the location of nearby towers and an

expected amount of overlap in the coverage areas. N.T. Trial, 9/25/13 (P.M.

Session), at 95, 119.

During Detective Coffman’s testimony, Appellant questioned the

accuracy of these circles, arguing that they were only based on estimates.

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On appeal, Appellant focuses on the following exchange, which occurred

during cross-examination:

Defense Counsel: But when [the prosecutor] asked you your
opinion, you gauged it in terms of within a reasonable degree of
certainty.

Detective Coffman: That’s correct.

Defense Counsel: Are you certain that the phone is in those
circles or is it an estimate, sir?

Detective Coffman: I’m reasonably sure that this is the
coverage area.

Defense Counsel: Reasonably sure?

Detective Coffman: Yes.

Defense Counsel: So is that certain or is that an estimate?

Detective Coffman: That’s reasonably sure.

Defense Counsel: So you’re only reasonably sure?

Detective Coffman: Yes.

N.T. Trial, 9/25/13 (P.M. Session), at 89.

Notwithstanding this discussion, on direct examination, Detective

Coffman offered his expert opinion within a reasonable degree of certainty

as to the cell tower coverage and the location of Appellant’s cell phone

within those areas. N.T. Trial, 9/25/13 (A.M. Session), at 108-109, 110,

120, 126, 129. Thus, the record establishes that Detective Coffman’s

testimony met the standard for admissibility. Gonzalez, supra.

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J-A14026-17

We do not find, as Appellant suggests, that Detective Coffman’s

conclusions were merely speculative. In determining the location of the cell

phones on the night in question, Detective Coffman reviewed the tower

location and sector utilized by the handsets associated with each

conspirator, including the telephone used by Appellant. To estimate the

coverage area of the towers in the vicinity of Mr. DeGenarro’s house, the

detective considered the topography of the area, capacity of the tower, and

other factors which would affect the strength of the tower’s signal, such as

absorption, attenuation, terrain, and obstacles in the area. Id. at 79-80;

104. The detective added that the towers were situated so that coverage

areas overlapped, in order to maximize efficacy of the network as a whole.

Id. at 80. Further, he specified that the towers relevant to Appellant were

divided into sectors depicting a 120 degree portion of the tower’s coverage

area. Id. at 106. He did concede that the coverage area does not have a

definitive range, but that the area depicted in his report was merely a

representation. Id. at 106, 129.

Detective Coffman expressed, within a reasonable degree of

professional certainty, that, based on the tower location and sector data that

he reviewed, the handset associated with Appellant was located in Trenton,

New Jersey, around the time the conspirators congregated, and not within

the coverage range for Appellant’s place of employment where Appellant

claimed he was during the criminal episode. Id. at 121, 129. Further, he

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opined that the handset associated with Appellant was in close proximity to

Mr. DeGennaro’s residence before and at the time Mr. DeGennaro was

attacked. N.T. Trial, 9/25/13 (P.M. Session), at 12-13, 18, 21-22.

When considering Detective Coffman’s testimony as a whole, we find it

was sufficiently definite with regard to the location of the cell phone towers

and sectors utilized by Appellant’s cell phone at all relevant times. That the

total coverage area was based on estimates is not dispositive, as the tower

location and sector information he provided was unambiguous. Insofar as

the detective’s expert opinion relied on his analysis of this information, we

find the foundation of his testimony to be robust, and thus, offered within a

reasonable degree of professional certainty. Gonzalez, supra. As such,

the trial court did not abuse its discretion in permitting Detective Coffman’s

expert testimony to be offered into evidence.

Appellant’s fifth issue challenges the trial court’s denial of his motion

to suppress wiretap evidence. It is well-settled that “our standard of review

in addressing a challenge to a trial court’s denial of a suppression motion is

limited to determining whether the factual findings are supported by the

record and whether the legal conclusions drawn from those facts are

correct.” Commonwealth v. Jaynes, 135 A.3d 606, 610 (Pa.Super. 2016)

(citation and internal brackets omitted). Further,

[w]e may consider only the evidence of the prosecution and so
much of the evidence for the defense as remains uncontradicted
when read in the context of the record as a whole. Where the
record supports the findings of the suppression court, we are

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J-A14026-17

bound by those facts and may reverse only if the court erred in
reaching its legal conclusions based upon the facts.

Id. Specifically, Appellant contends that the officers monitoring the wiretaps

failed to comply with the wiretap order’s minimization plan. The Wiretapping

and Electronic Surveillance Control Act (“Act”) requires agents conducting

wiretap investigations to develop and enact a minimization plan to limit the

capture of non-pertinent communications. The Act reads, in relevant part:

(b) Time limits.--No order entered under this section shall
authorize the interception of any wire, electronic or oral
communication for a period of time in excess of that necessary
under the circumstances. Every order entered under this section
shall require that such interception begin and terminate as soon
as practicable and be conducted in such a manner as to minimize
or eliminate the interception of such communications not
otherwise subject to interception under this chapter by making
reasonable efforts, whenever possible, to reduce the hours of
interception authorized by said order. In the event the
intercepted communication is in a code or foreign language and
an expert in that code or foreign language is not reasonably
available during the interception period, minimization may be
accomplished as soon as practicable after such interception. No
order entered under this section shall authorize the interception
of wire, electronic or oral communications for any period
exceeding 30 days. The 30-day period begins on the day on
which the investigative or law enforcement officers or agency
first begins to conduct an interception under the order, or ten
days after the order is entered, whichever is earlier.

18 Pa.C.S. § 5712(b).

In order to effectuate this provision, agents of the Commonwealth,

when seeking authorization from this Court to utilize a wiretap, are required

to submit a minimization plan outlining the efforts that will be undertaken to

minimize or eliminate the interception of non-pertinent communications, and

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reduce the total hours of interception. In practice, minimization proceeds on

two fronts: extrinsically and intrinsically. Extrinsic minimization pertains to

the efforts employed by investigators to limit the total number and duration

of the intercepted communications. Commonwealth v. Doty, 498 A.2d

870, 883. (Pa.Super. 1985). Intrinsic minimization refers to the techniques

used by the monitors to abate the intrusion into the participants’ privacy

while in the process of intercepting a particular communication. Id.

As an investigation progresses, investigators must also submit

amended minimization plans that reflect the shifting balance between their

investigatory needs and the protection of the target’s right to privacy. Thus,

as the surveillance proceeds, the minimization plan may be enlarged or

narrowed as the circumstances dictate. The initial minimization plan and

any amended plans are subject to the approval of the supervising judge. 18

Pa.C.S. § 5712. The Act permits the contents and evidence obtained during

a wiretap investigation to be excluded from a court proceeding where “[t]he

interception materially deviated from the requirements of the order of

authorization,” including material deviations from the minimization plan. 18

Pa.C.S. § 5721.1(b)(4).

When considering whether a wiretap investigation was lawfully

conducted with regard to a minimization plan, this Court in Doty, supra,

adopted the test enunciated in Scott v. United States, 436 U.S. 128

(1978). In Scott, the United States Supreme Court articulated the

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J-A14026-17

guidelines for evaluating compliance with the wiretap minimization

requirement under Title III of the Omnibus Crime Control and Safe Streets

Act of 1968, which governs federal wiretaps. The High Court observed that

the “statute does not forbid the interception of all nonrelevant conversations,

but rather instructs the agents to conduct the surveillance in such a manner

as to ‘minimize’ the interception of such conversations.” Scott, supra at

140. It found that “[w]hether the agents have in fact conducted the wiretap

in such a manner will depend on the facts and circumstances of each case.”

Id.

The High Court emphasized certain circumstances it found relevant in

analyzing a wiretap investigation, such as, “the nature of the investigation,

the length of calls, the percentage of pertinent calls, whether calls are

repeatedly between the same parties, whether the contents of calls are

ambiguous, whether coded or guarded language is used, and whether

patterns develop during the surveillance.” Doty, supra at 883 (citing

Scott, supra.). Further, it observed that “when the investigation is focusing

on what is thought to be a widespread conspiracy[,] more extensive

surveillance may be justified in an attempt to determine the precise scope of

the enterprise.” Scott, supra at 140.

In Doty, we recognized the delicate balance that must be struck

between a citizen’s privacy and the “legitimate law enforcement aims to be

pursued.” Doty, supra at 882. Nonetheless, we found that “[a]n overly

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restrictive interpretation of the minimization requirement” under the Act

would “make it impossible to use a telephone intercept” as a means for

investigating necessarily secretive criminal activities. Id. at 883-884.

Parroting Scott, we held that “minimization must be a question of what is

reasonable and practical under the circumstances of each case.” Id.

Herein, the Commonwealth conducted wiretap surveillance of four

telephone numbers. Two of those numbers were associated with Mr.

Jackson, and one each was used by Ms. Bakr and Ms. Henderson. During its

surveillance of those lines, the Commonwealth intercepted communications

between Appellant and those individuals.

The initial minimization plan approved for each of these wiretaps

provided, in relevant part, that all wire and oral communications placed from

or received by the target phone numbers would be intercepted to determine

whether they contained evidence concerning the murder of Mr. DeGennaro.

During an intercept, the monitor was directed to determine within the first

two minutes whether the communication was pertinent to this endeavor. If

it found that the phone call was pertinent, the monitor was permitted to

record it in its entirety. If the communication was found to be non-

pertinent, the monitor was instructed to terminate recording and engage in

only spot-check supervision of the communication.

The spot-check procedure required the monitor to cease recording for

two minutes if a communication was deemed non-pertinent following the

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J-A14026-17

initial two-minute intercept. Upon the expiration of that two minute

abstention, the monitor could resume supervision of the call for an additional

minute. If the call remained non-pertinent during this minute, the monitor

was directed to cease recording for at least two minutes, and thereafter, the

spot-checking process was to be repeated as necessary.2 If, however, the

monitor determined that the call became pertinent to the investigation

during a spot-check, it was authorized to record the remainder of the

interaction.

Appellant argues that the Commonwealth materially deviated from the

wiretap order by failing to comply with this minimization plan. He alleges

that the monitors did not make any attempt to extrinsically minimize the

wiretap investigation since it was permitted to operate twenty-four hours a

day for the duration of the intercept. Further, he contends that the monitors

did not intrinsically minimize approximately 200 to 300 of the telephone

calls.3 He concludes that the appropriate remedy for a violation of this

____________________________________________

2
During the course of the investigation, the minimization plan was amended
to permit the monitors to spot-check for two minutes, followed by one
minute where the wiretap was turned off. N.T. Hearing, 12/11/12, at 130-
131.
3
Appellant does not cite to any particular occurrence in the record wherein
the Commonwealth failed to minimize a communication involving him, and
indeed, we listened carefully to the intercepts and Appellant’s conversations
were properly minimized. Nevertheless, the Act permits any “aggrieved
person” to move to exclude the contents of any wire, electronic or oral
communication. 18 Pa.C.S. § 5721.1(b). Since the Act broadly defines an
(Footnote Continued Next Page)

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J-A14026-17

nature is suppression of all the communications intercepted, since mere

suppression of the non-pertinent phone calls which gave rise to the violation

would not sufficiently deter the Commonwealth from engaging in such

conduct.4

Following extensive hearings on Appellant’s motion to suppress, the

suppression court denied his motion finding, inter alia, that the minimization

plan was approved by the supervising judge, that the interceptions were

used to obtain evidence of an ongoing conspiracy, that the minimization

plans were signed by the monitors and posted in the monitoring location,

that many of the calls were between the same people, that most of the

phone calls were brief, that there was no pattern to the communications,

that many of the calls used guarded, coded, or ambiguous language, and

that between 200 to 300 calls were not properly minimized. N.T.

Suppression, 4/25/13, at 146-149.

Based on the foregoing, the suppression court concluded that the

minimization plan was “reasonable and practical under the circumstances of
_______________________
(Footnote Continued)

“aggrieved person” as “a person who was a party to any intercepted wire,
electronic or oral communication or a person against whom the intercept
was directed,” see 18 Pa.C.S. § 5702, and since it is uncontested that
Appellant was a party to an intercepted communication, this shortcoming
does not affect our analysis.
4
We observe that, although Appellant delineated the factors applied by the
United States Supreme Court in Scott v. United States, 436 U.S. 128
(1978), he did not develop any argument analyzing how those
circumstances are implicated herein.

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this case,” that “the manner in which the wiretap was conducted did not

oppose a greater invasion of privacy [than] was reasonably necessary,” that

“24 hour a day surveillance was not unreasonable,” and that “the

Commonwealth did not materially deviate from the minimization plans as

ordered[.]” Id. at 149-150.

In its Rule 1925(a) opinion, the court reviewed the Scott factors and

found that the interceptions were reasonable under Scott since “each of the

calls was around two minutes, there was no pattern to the intercepted calls,

many calls involved co-conspirators, and most of the calls used coded

language that made it difficult to interpret the subject matter of the call

immediately.” Trial Court Opinion, 1/22/16, at 32. The court noted,

“although there were a number of calls that were not minimized in less than

two minutes, it was sometimes impossible for the detectives to determine

that the subject matter was proper for minimization in the allotted time.”

Id.

Upon review of the certified record, we hold that the suppression

court’s findings of facts are supported by the record, and that it did not err

in denying Appellant’s motion to suppress. Instantly, the Commonwealth

sought authorization to wiretap Mr. Jackson, Ms. Bakr, and Ms. Henderson in

order to investigate the criminal conspiracy which led to the death of Mr.

DeGennaro. That application included the aforementioned minimization

plan, which was approved by the supervising judge, reviewed and signed by

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the monitoring officers, and posted at the monitoring station. N.T. Hearing,

9/7/12, at 103-104, 108-110. The Commonwealth intercepted

approximately 22,000 communications between February 13, 2012, and

March 13, 2012, when the wiretap on all four lines terminated.5 The

majority of the intercepted telephone calls were brief, lasting less than the

two minutes provided by the minimization order. The Commonwealth

deemed 6,039, or twenty-seven percent, of those communications to be

pertinent, primarily to the murder of Mr. DeGennaro, but also as evidence of

other crimes.

Of the communications deemed non-pertinent, Appellant has not

indicated which telephone calls were not properly minimized. Nevertheless,

the Commonwealth concedes that, of the 488 calls in excess of two-minutes,

approximately 280, or roughly three-and-one-half-percent, of the

approximately 8,000 telephone calls intercepted were not properly

minimized. Appellee’s brief at 71 n.10; N.T. Hearing 4/25/13, at 127.
____________________________________________

5
Certain communications intercepted by the Commonwealth were redundant
messages, and thus there are fewer distinct messages than the number
reported by the monitor’s wiretap logs. This redundancy is an artifact of
modern wiretap technology which retains a constant connection to the
communication facility’s server. On the other hand, a cellular handset does
not always maintain a connection to the server. Hence, in some cases an
incoming message destined for that handset will be stored on the
communication facility’s server. The server will periodically attempt to
retransmit the message until the handset regains a connection, at which
point the message will be delivered. As a result of this quirk of modern
communication technology, the Commonwealth “intercepts” duplicate
versions of some individual communications.

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In light of these circumstances of this case, we find that the wiretap

minimization plan utilized by the Commonwealth was a reasonable means to

track and uncover the conspiracy in which Appellant participated in regard to

both the murder of Mr. DeGennaro and the subsequent cover up. The

twenty-four hour connection was a practical necessity given the

technological requirements of working with the communications facility and

the extensive communications between the co-conspirators. Those

communications demonstrated no consistent pattern, and the investigators

intercepted pertinent transmissions at all times of the day. Many of those

exchanges involved, or pertained to, members of the conspiracy. The

exchanges often relied upon coded or guarded language as the co-

conspirators’ communications evinced suspicion that their activity was being

monitored, and they took collective measures to avoid apprehension.

In addition, as the investigation commenced, the extent of the

conspiracy and its participants was largely unknown to the police. We have

previously held that where the conduct being investigated involves “a course

of conduct embracing multiple parties and extending over a long period of

time . . . the initial plan may properly authorize interception of all

communications during their entire durations.” Doty, supra at 400.

Indeed, “[t]his is especially so where coded or guarded language is used, or

where information concerning the extent of a conspiracy, the identity of the

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J-A14026-17

conspirators, and other details of the conspiracy are sought.” Id. at 400-

401. As such, continuous monitoring was warranted.

We also find that the intrinsic minimization procedures employed by

the monitors were reasonable. Although the co-conspirators often

communicated via text-message or short telephone conversations, their use

of guarded or coded language hampered the monitors’ ability to quickly and

accurately assess the import of any particular communication. Hence, the

two-minute listening window and spot-check procedure adequately balanced

the investigative needs of the Commonwealth with the parties’ right to

privacy. This is especially true given the co-conspirators’ attempts to shield

themselves from suspicion, which required extensive investigative resources

to burrow through.

Lastly, we find that the Commonwealth did not materially deviate from

the wiretap order. The Commonwealth failed to properly minimize

approximately three-and-one-half percent of the telephone conversations it

intercepted. In a case like this, involving extensive communication between

multiple parties employing coded language, the relevancy of any particular

conversations was often not immediately apparent. Based on these practical

difficulties, we do not find that the Commonwealth’s deviation was so

substantial as to justify exclusion of the contents and evidence derived from

the wiretap investigation. Hence, the suppression court did not err in

denying Appellant’s motion to suppress.

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J-A14026-17

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/25/2017

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