Com. v. Cobb, A.

J-S43012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
ANTHONY MICHAEL COBB :
:
Appellant : No. 1611 MDA 2018

Appeal from the Judgment of Sentence Entered August 31, 2018
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001890-2016

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
ANTHONY MICHAEL COBB :
:
Appellant : No. 1613 MDA 2018

Appeal from the Judgment of Sentence Entered August 31, 2018
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000947-2016

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
v. :
:
ANTHONY MICHAEL COBB :
:
Appellant : No. 1616 MDA 2018

Appeal from the Judgment of Sentence Entered August 31, 2018
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0000950-2016

BEFORE: GANTMAN, P.J.E., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY GANTMAN, P.J.E.: FILED NOVEMBER 08, 2019

Appellant, Anthony Michael Cobb, appeals from the judgment of

____________________________________
* Former Justice specially assigned to the Superior Court.
J-S43012-19

sentence entered in the Franklin County Court of Common Pleas, following his

jury trial convictions for one count each of attempted murder, aggravated

assault, recklessly endangering another person, solicitation to commit first-

degree murder, conspiracy to commit first-degree murder, and three counts

of intimidation of a witness or victim.1 We affirm.2

In its opinions, the trial court accurately set forth the relevant facts and

procedural history of this case. Therefore, we have no reason to restate them.

Appellant raises the following issues for our review:

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN
IT DENIED APPELLANT’S REQUEST TO SUPPRESS CERTAIN
LETTERS AUTHORED BY HIM DURING HIS INCARCERATION
WHICH WERE SEIZED AND COPIED BY THE FRANKLIN
COUNTY JAIL AFTER THEY HAD BEEN SEALED BY
APPELLANT, AND WHERE THEIR OPENING WAS NOT FOR
ANY “LEGITIMATE CORRECTIONAL INTEREST IN ORDER OR
SECURITY OR FOR THE PROTECTION OF THE PUBLIC”?

DID THE TRIAL COURT COMMIT REVERSIBLE ERROR WHEN
IT DENIED APPELLANT’S REQUEST TO SEVER ALL COUNTS
OF INTIMIDATION OF A VICTIM/WITNESS IN DOCKET 947
OF 2016, FROM THE TRIAL IN DOCKET 1890 OF 2016,
SOLICITATION AND CONSPIRACY TO COMMIT MURDER OF
THE FIRST DEGREE, WHERE THE OFFENSES OF
INTIMIDATION OF A VICTIM/WITNESS WERE NOT BASED
ON THE SAME ACT OR TRANSACTION AS THE CONSPIRACY
OR SOLICITATION TO COMMIT MURDER, AND WHERE THE
____________________________________________

118 Pa.C.S.A. §§ 901 (Section 2502 related); 2702(a)(1); 2705; 902 (Section
2502(a) related); 903 (Section 2502(a) related); 4952(a)(2), respectively.

2 Appellant filed separate notices of appeal at each underlying trial court
docket. Thus, he complied with the dictates of Commonwealth v. Walker,
646 Pa. 456, 185 A.3d 969 (2018) (requiring as of June 1, 2018, separate
notices of appeal from single orders which resolve issues arising on separate
trial court docket numbers). This Court consolidated the cases for appeal.

-2-
J-S43012-19

EVIDENCE WAS NOT CAPABLE OF SEPARATION BY THE
JURY?

DID THE COMMONWEALTH PRESENT SUFFICIENT
EVIDENCE TO SUPPORT THE CONVICTIONS FOR CRIMINAL
ATTEMPT—MURDER, SOLICITATION AND CONSPIRACY TO
COMMIT MURDER, RECKLESSLY ENDANGERING ANOTHER
PERSON, AND 3 COUNTS OF INTIMIDATION OF A
VICTIM/WITNESS?

(Appellant’s Brief at 5-6).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinions of the Honorable Jeremiah D.

Zook, we conclude Appellant’s issues merit no relief. The trial court opinions

accurately discuss and properly dispose of the questions presented. (See Trial

Court Opinion, filed March 20, 2018, at 2-19; Rule 1925(a) Opinion, filed

October 25, 2018, at 4-6) (finding: (1) inmate generally has no constitutional

right to privacy in non-privileged mail; even if trial court was required to

consider policies/procedures of correctional facility, Appellant’s claim still fails;

Commonwealth established that inmates at Appellant’s correctional facility are

instructed to put their unsealed outgoing mail in designated box outside

housing unit; this directive is included in inmate handbook, which Appellant

received; fact that Appellant sealed his letter, in direct contravention of policy,

did not create reasonable expectation of privacy in Appellant’s non-privileged

mail; (2) at docket 947-2016 (intimidation charges), Appellant’s letter to Ms.

Stottlemyer (girlfriend of Appellant’s cohort, Mr. Troskoski) was probative of

events charged at docket 950-2016 (attempted murder and related charges)

-3-
J-S43012-19

and docket 1890-2016 (solicitation and conspiracy charges), as it related to

whether Mr. Troskoski was cooperating with authorities; Appellant’s conduct

at docket 950-2016 and docket 1890-2016, provided motive for letter, and

letter itself was evidence of Appellant’s involvement with Mr. Troskoski, as

Appellant asked Ms. Sottlemyer to tell Mr. Troskoski not to cooperate with law

enforcement; jury could separate charges related to this letter from charges

at other dockets; regarding letter Appellant sent to Mr. Troskoski, content of

letter related to drug case no longer pending before this court, so that letter

was neither relevant nor probative of criminal charges at other dockets; thus,

court granted severance for only count two of docket 947-2016; regarding

letters Appellant sent to Ms. Richardson and Ms. Shy, they were probative of

conduct at docket 950-2016 and docket 1890-2016, because Appellant

instructed recipients what to say about him regarding cases; further,

allegations at docket 950-2016 and docket 1890-2016 would have been

admissible at separate trial for intimidation charges because they established

motive for Appellant’s letters; (3) jury convicted Appellant of eight offenses;

Appellant failed to identify in concise statement which offenses lacked

sufficient evidence or which elements of crimes Appellant challenged;

Appellant’s vague Rule 1925(b) statement waived his sufficiency issue on

appeal). Accordingly, we affirm on the basis of the trial court opinions.

Judgment of sentence affirmed.

-4-
J-S43012-19

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/08/2019

-5-
 Circulated 10/24/2019 03:56 PM

PROCEDURAL HISTORY
In docket CP-28-CR-0000950-2016, the Defendant was
charged on May 6, 2016, with one (1) count of Attempted Murder;'
one (1) count of Aggravated Assault,? .one
•, .
(1) count of Person Not to
Possess Firearm,3 and one (1) count of Recklessly Endangering
Another Person.4 On June 7, 2016, all charges were bound over to
this court for trial.
In docket CP-28-CR-0000947-2016, the Defendant was
charged on June 3, 2016, with four (4) counts of Intimidation of
Witnesses/Victims.5 On June 7, 2016, all charges were bound over
to this court for trial.
In docket CP-28-CR-0001890-2016, the Defendant was
charged on August 16, 2016, with one (1) count of Solicitation to
Commit Murder and one (1) count of Conspiracy to Commit

1 18 Pa.C.S. § 901; 18 Pa.C.S. § 2502.
2 18 Pa.C.S. § 2702(a)(l) - a felony of the first degree.
3 18 Pa.C.S. § 6105(a}(l) - a felony of the second degree.
4 18
s 18
Pa.C.S.
Pa.C.S.
§ 2705 - a misdemeanor of the second degree.
§ y952 - graded as felonies of the first degree.
riled OCT 2-5-20·18· . -�
. -,-�M,�.,�--
---- l� -----
,

-:
1. .. ,J2;.{ . �
Murder. On November 1, 2016, all charges were bound over to this
court for trial. On November 30, 2016, the Commonwealth filed a
Notice of Joinder in all three cases,« thereby joining them for one
trial pursuant to Pa.R.Crim.P. 582(B)(l).
On November 16, 2017, the Defendant filed an Omnibus Pre-
trial Motion seeking, inter alia: 1) suppression of letters which
formed the basis of the charges of Intimidation of Witness/Victim in
docket CP-28-CR-0000947-2016; and 2) severance of the charges
filed at CP-28-CR-0000947-2016 from CP-28-CR-0001890-2016 for
separate trials. This court held an evidentiary hearing on the
Defendant's Omnibus Pre-Trial Motion on February 23, 2018. Post-
hearing briefs were submitted by the parties
On March 20, 2018, this court issued an order denying
suppression of the letters, and denying in part and granting in part
the Defendant's request for severance. See Order, March 20, 2018.
The court issued a written Opinion in support of its ruling.
Thereafter these matters proceeded to trial by jury from June
19, 2018 through June 22, 2018. At the conclusion of trial, the
jury returned verdicts of guilt on the following offenses:
CP-28-CR-0000950-20167
Count 1 - Attempted Murder
Count 2 - Aggravated Assault
Count 4 - Recklessly Endangering Another Person

6 The Commonwealth's Notice included docket CP-28-CR-0000949-2016. However, the
Defendant was subsequently indicted by the United States and the Court granted the
Commonwealth a nolle pros of the charges at that docket.
1 Count 3 - Person Not to Possess Firearm was severed for a separate trial and remains
pending before this court.
2
CP-28-CR-OOO 1890-2016
Count 1 - Solicitation - First Degree Murder
Count 2 - Conspiracy - First Degree Murder

CP-28-CR-0000947-20168
Count 1 - Intimidation of a Witness
Count 3 - Intimidation of a Witness
Count 4 - Intimidation of a Witness
See Verdict Slip, June 22, 2018.
On August 31, 2018, the Court imposed an aggregate sentence
of not less than 492 months (41 years) to not more than 1,200
months (100 years). The Defendant did not file a post-sentence
motion.
On September 27, 2018, the Defendant filed the instant Notice
of Appeal. By Order of Court dated October 1, 2018, this court
directed the Defendant to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1921(b). On
October 22, 2018, the Defendant timely complied.
ERRORS RAISED
The Defendant raises three errors in this appeal. As stated by
him, they are:
1. Whether the Trial Court committed
reversable [sic] error when it denied
Defendant's request to suppress certain letters
authored by him and seized by the Franklin
County Jail.

a Count 2 - Intimidation of Witness was severed for a separate trial and remains pending before
this court.
3
 2. Whether the Trial court committed
reversable [sic] error when it refused to sever
docket 947 of 2016 from 1890 of 2016.

3. Whether the convictions of the Defendant
are supported by sufficient evidence to prove
his guilt beyond a reasonable doubt?
Statement of Errors Complained of on Appeal, October 22, 2018.
This court adequately explained the reasons for the denial of
suppression (Issue 1) and partial denial of severance (Issue 2) in the
Opinion filed of record in this matter on March 20, 2018. We have
attached a copy of that Opinion for ease of review. This court relies
thereon.
As to Issue 3, this court cannot reasonably opine as to the
sufficiency of the evidence in support of the convictions. The
Defendant has not identified which offenses he asserts are
supported by insufficient evidence, or which element of those
offenses are at issue. It is not this court's job to comb the record of
the trial and offer our opinion as to all charges and each element of
the charges when that issue was never· raised with this court during
trial, post-trial, or in post-sentence proceedings. The Defendant
was convicted of eight (8) separate offenses, each of which contains
multiple statutory elements.
More importantly, the Honorable Superior Court has
repeatedly held that a bald assertion of insufficient evidence,
without specifically identifying the offense(s) and element(s) at
issue, results in waiver of the challenge on appeal. In

4
Commonwealth v. Williams, 959 A.2d 1252 (Pa.Super. 2008), the
Superior Court stated:
If Appellant wants to preserve a claim that the
evidence was insufficient, then the 1925(b)
statement needs to specify the element or
elements upon which the evidence was
insufficient. This Court can then analyze the
element or. elements on appeal. The instant
1925(b) statement simply does not specify the
allegedly unproven elements. Therefore, the
sufficiency issue is waived.

Before leaving this issue, we note that the
Commonwealth failed to object to the
aforementioned defect in the 1925(b)
statement. We also note that the trial court's
opinion addressed the topic of sufficiency. The
Commonwealth's failure and the presence of a
trial court opinion of no moment to our
analysis because we apply Pa.R.A.P. 1925(b) in
a predictable, uniform fashion, not in a
selective manner dependent on an appellee's
argument or a trial court's choice to address
an unpreserved claim. Thus, we find 1925(b)
waiver where appropriate despite the lack of
objection by an appellee and despite the
presence of a trial court opinion.
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008),
quoting Commonwealth v. Flores, 921 A.2d 517, 522-23 (Pa.Super.
2007); see also Commonwealth v. Stiles, 143 A.3d 968, 982
(Pa.Super. 2016) (finding 1925(b) statement inadequate to preserve
sufficiency claim where it did not "clearly state any element upon
which he alleged the evidence was insufficient.").

5
 Considering the Defendant was convicted of eight separate
offenses, each containing multiple elements, this court cannot
discern from the Defendant's claim of error which offense or
offenses, or which element or elements, he claims is supported by
insufficient evidence. Therefore, we are unable to offer an opinion.
However, if the Honorable Superior Court determines an opinion
should be rendered on all offenses and all elements, it is
respectfully requested that a remand be issued to this court with
sufficient time for this court to complete such a task.

6
 Circulated 10/24/2019 03:56 PM

The above captioned matters are before the Court on the Defendant's
Omnibus Pre-trial Motion (Omnibus Motion), filed November 16, 2017. Hearing
was held on February 23, 2018. Timely post-hearing briefs have been
submitted by the parties. This matter1 is ready for decision.
BACKGROUND
Several of the claims raised by the Defendant necessitate an examination
of how charges at these three separate docket numbers relate to each other, if
at all. To the extent factual findings are necessary from the evidence presented
at hearing, the Court will make those in a separate section addressing each
claim. However, a general summary of the Commonwealth's allegations at the
outset is appropriate.
CP-28-CR-0000950-20;Jje.�
On April 20, 2016, the Defendant is alleged to have committed the
offenses of: 1) Attempted Murder of the Third Degree; 2) Aggravated Assault; 3)
Possession of Firearm Prohibited; and 4) Recklessly Endangering Another

1 The Court previously disposed of the included Motion to Compel and Motion in Limine by
Order of Court, February 23, 2018, and will not be addressed herein.
2 These allegations are gleaned from the affidavit of probable cause filed in support of the

charges in the Police Criminal Complaint. The Court has listed each docket in the alleged
chronological order.
Filed
MAR 2 0 2018
Person. The Commonwealth alleges that the Defendant was involved in a "fight
involving 20-30 teens" in the Borough of Waynesboro, Franklin County.
During this altercation, the Defendant is alleged to have brandished a
firearm and fired a shot at Jermaine Jenkins, as Jenkins was fleeing the scene.
Witnesses reported to the police that Jenkins initially tried to stab or slash the
Defendant with a knife; witnesses also reported that the Defendant then pulled
out a gun and fired it at the fleeing Jenkins.
CP-28-CR-OOO 1890-2016
On April 20, 2016, the Defendant is alleged to have committed the
offenses of: 1) Solicitation to Commit Murder of the First Degree; and 2)
Conspiracy to Commit Murder of the First Degree. The Commonwealth alleges
that these offenses were committed in retaliation for the attempted stabbing by
Jenkins of the Defendant earlier that same day. However, in what appears to
be an alleged case of mistaken identity, the alleged co-conspirators purportedly
tried to kill Corey Quartez Ballard, not Jermaine Jenkins. These acts are
alleged to have occurred in the Borough of Waynesboro, Franklin County.
The Commonwealth alleges that the Defendant solicited and conspired
with Ryan Troskoski, Brandon Maze, and/ or Joey King to kill Jermaine
Jenkins. The co-conspirators then attempted to shoot Ballard, mistaking him
for Jenkins.
CP-28-CR-0000947-2016
Between the dates of May 10, 2016, and June 2, 2016, the Defendant is
alleged to have committed four counts of Intimidation of Witness. These
charges stem from four letters purportedly written by the Defendant to several
individuals.
MOTION TO SUPPRESS LETTERS IN DOCKET 947-20163
The Defendant seeks suppression of the four letters, purportedly written
by him, that form the basis for the charges of Intimidation of a Witness. The

3 See Omnibus Motion, 11 12 - 25.
2
basis for suppression is the averred violation of the 4th Amendment to the U.S.
Constitution, and Article I § 8 of the Pennsylvania Constitution.

Findings of Fact
The Commonwealth called one witness in opposition to the Motion to
Suppress, namely Deputy Warden James Sullen from the Franklin County Jail.
His testimony revealed the following:
When inmates are committed to the Franklin County Jail, they are given
a Mail Authorization form when they arrive. This form allows the inmate to
decide whether they want to receive mail while they are incarcerated. The
initial statement of the form reads as follows:
The Warden or his designee may open all mail
addressed to this institution upon your election to
receive mail. There are two classes of mail: General
Mail and Legal Mail. General mail consists of mail
from friends, family, or general business associates.
Legal Mail is defined in the Institutional Mail Policy
Directive.

Commonwealth's Exhibit 1 (emphasis original).
If the inmate elects to receive mail, they sign the form acknowledging as
such; this acknowledgment states as follows:
I have read the above selection regarding mail and I
wish to have my General Mail opened and delivered to
me. I understand that this means the Warden or his
designee may open and read my general mail. I also
understand that my legal mail will be opened,
searched in my presence for contraband, and I will
sign the corresponding log upon receipt.
The Commonwealth entered the Defendant's signed Mail Authorization form
into evidence. See Commonwealth's Exhibit 1. The Defendant elected to have
mail opened, read and delivered by jail officials pursuant to his written
authorization.
Standard Operating Procedure (SOP) 400.04 governs the handling of
inmate mail at the Franklin County Jail. See Commonwealth's Exhibit 3. This

3
SOP covers both outgoing and incoming mail to the Jail. Outgoing mail is
covered by ,i,i 2.1 and 2.2. They state:
2.1 Outgoing legal mail will not be opened for the
purpose of checking for contraband unless the interest
inmate is present.

2.2 Outgoing mail may be opened for the purpose of
checking for contraband.

Commonwealth's Exhhibit 3.
,i 3 of the SOP states:
The Warden, or designee, may open, read, censer,
and/ or reject mail based on legitimate correctional
interests of order and security, including, but not
limited to the following reasons:

Mail with content that describes or encourages
activities which may lead to the use of physical
violence

Mail containing information involving escape
plots, plans to commit illegal activities or to violate
FCJ rules and regulations

Mail written in code

Nudity or obscene language

,i 4 of the SOP states:
The sending and receipt of mail shall be restricted or
prohibited for valid penological reasons such as
introduction of contraband, threats to security or the
public, or when requested by intended recipients. A
restricted or prohibited mail log shall be maintained by
the Captain.

The inmates at the Jail are provided an Inmate Handbook, which
contains a section dealing with the facility's mail policy. Relevant to this
decision is the portion which reads:
Place your outgoing mail in the designated box located
on your housing unit unsealed.

4
Commonwealth's Exhibit 4.
On May 12, 2016, Deputy Warden Sullen received a fax letter from
Officer Thomas Storey of the Waynesboro Police Department. See
Commonwealth's Exhibit 2. Ofc. Storey requested that Jail personnel
scrutinize "non-privileged incoming and outgoing mail" for the Defendant, for a
period of thirty days from May 9, 2016.
In response to Ofc. Storey's request, Deputy Warden Sullen started to
monitor the Defendant's non-privileged mail. Deputy Warden Sullen kept a log
of the mail that was read by jail staff. See Commonwealth's Exhibit 11. The
four letters in question were intercepted by jail staff and turned over to law
enforcement. At some point, the Defendant began to submit his letters
unsealed with a note on the exterior asking jail staff to make copies before
sealing the envelope.
According to the Defendant, who testified, he would place his outgoing
letters in a mailbox on his housing unit; he would seal the letters before
placing them in the box. He acknowledged that he had read the Inmate
Handbook. Further, he learned that his mail was being scrutinized when he
was charged with the instant Intimidation offenses.
CONCLUSIONS OF LAW
The Defendant argues that the reading of his outgoing mail violated of
his rights under Article I, § 8 of the Pennsylvania Constitution, and the 4th
Amendment to the U.S. Constitution. See Brief of Defendant, Anthony Cobb, in
Support of His Pre-Trial Omnibus Motion to Suppress (Brief of Defendant). The
Commonwealth responds that the Superior Court has already addressed this
issue in Commonwealth v. Moore, 928 A.2d 1092 (Pa.Super. 2007), holding that
the Pennsylvania and United States Constitutions are not violated by jail staff
reading non-privileged mail of an inmate. See Brief in Support of the
Commonwealth's Request to Deny the Defendant's Omnibus Motion to

5
Suppress (Brief of Commonwealth), p. 2. The Defendant argues that Moore is
distinguishable on its facts. See Brief of Defendant.4
In Moore, a homicide detective from the Philadelphia Police Department
contacted the security office of the State Correctional Institute at Graterford
(SCI). Moore, 928 A.2d at 1094. The detective requested that SCI officials copy
all incoming and outgoing mail of the defendant because the defendant's
brother was wanted in relation to a murder. Id. The detective wanted to
examine the defendant's mail in an effort to locate the defendant's brother.
Moore, 928 A.2d at 1094-1095. SCI officials directed the detective to submit
his request in writing, and to set forth the facts regarding the need for the mail
interception. Id., at 1095. The detective complied, and after internal review,
SCI officials approved the detective's request. Id. SCI mailroom and security
officials then began monitoring and copying all incoming and outgoing non-
privileged mail of the defendant. Id.
The defendant's brother was ultimately ·located based, in part, on
information homicide detectives gleaned from the defendant's prison mail.
Moore, 928 A.2d at 1095. The defendant "and his acquaintances employed
codes to conceal their messages"; they "also used blank lines to conceal names"
in the subject correspondence. Id.
The defendant ultimately filed a motion seeking suppression of the
letters.e The defendant argued to the trial court that:
Generally [the defendant] conceded prisoners have no
constitutional protection from searches in furtherance
of legitimate prison security concerns. However, [the
defendant] argued prisoners enjoy constitutional
protections from searches initiated to pursue criminal
investigations unrelated to security concerns. When
prison officials seized and copied his mail at the
request of detectives investigating a murder, they
violated his constitutional rights. [The defendant]
concluded the letters and their evidentiary fruits

4 The Defendant has not numbered the pages of his brief, so the Court cannot cite to such.
s It is not at all clear from the Superior Court's opinion what charges the defendant was facing
and how the letters were relevant to those charges; however, it appears at least one of the
charges may have been related to intimidation of a witness. Moore, 928 A.2d at 1095.
6
 should be suppressed because they were obtained
without a warrant, in violation of his constitutional
rights.

Moore, 928 A.2d at 1096. The trial court agreed and suppressed the letters.
Id. The Commonwealth appealed. Id.
The Superior Court began its analysis with the United States
Constitution. Moore, 928 A.2d at 1097. The Supreme Court of the United
States developed a "two-fold" requirement to assert a violation of the 4th
Amendment: 1) the individual "must demonstrate that he sought to preserve
something as private": and 2) the individual's "expectation of privacy must be
justifiable under the circumstances." Moore, 928 A.2d at 1098, citing Smith v.
Maryland, 442 U.S. 735, 740 (1979). Further, "[the Supreme Court]
consistently has held that a person has no legitimate expectation of privacy in
information he voluntarily turns over to third parties." Id., quoting Smith v.
Maryland, 442 U.S. at 743 - 44. The Superior Court further reviewed a
number of federal decisions, both from the High Court and the Circuit Courts
of Appeal, upholding the search and seizure of inmate mail due to a non-
existent constitutional expectation of privacy. Moore, 928 A.2d at 1098 - 1099.
In ultimately concluding that the defendant's federal constitutional right
had not been violated, the Superior Court stated:
Instantly, prison officials informed Appellee about the
prison's mail inspection procedure when he first
arrived at prison. The inmate handbook and the
Department of Corrections policy directives detail the
prison's policy of mail inspection. Lt. Knauer testified
at the May 15, 2006 suppression hearing that all mail
sent to prisoners funnels through the prison mail
room. Pursuant to this procedure, the mail room
correction officers opened Appellee's non-privileged
incoming mail to ascertain whether it contained
contraband. Appellee also submitted his outgoing
non-privileged correspondence to the mail room in
unsealed envelopes, per prison policy. Appellee
availed himself of a process that exposed his
correspondence to the plain view of prison officials;

7
 therefore, society would not recognize any alleged
subjective expectation of privacy as reasonable.

Furthermore, Appellee and (his co-defendant]
corresponded in coded language to keep their dialogue
concealed from police. The use of codes demonstrates
their desire to convey information in a furtive manner
given the likelihood of inspection. The use of codes
also suggests their true expectation that the mail
would be read. Therefore, Appellee cannot claim the
Fourth Amendment conferred upon him any legitimate
expectation of privacy under these circumstances.

Moore, 928 A.2d at 1099.
Turning to the Pennsylvania Constitution, the Superior Court noted that,
while our Constitution may be construed in a manner to provide greater
protection than the Federal Constitution, the same two-part test is utilized: 1) a
person must establish a subjective expectation of privacy; and 2) have
demonstrated that the expectation is one that society is prepared to recognize
as reasonable. Moore, 928 A.2d at 1101, quoting from Commonwealth v.
Duncan, 817 A.2d 455, 463 (Pa. 2003) (cleaned up). Further:
An expectation of privacy will be found to exist when
the individual exhibits an actual or subjective
expectation of privacy and that the expectation is one
that society is prepared to recognize as reasonable. In
determining whether a person's expectation of privacy
is legitimate or reasonable, the totality of the
circumstances must be considered and the
determination will ultimately rest upon a balancing of
the societal interests involved. The constitutional
legitimacy of an expectation of privacy is not
dependent on the subjective intent of the individual
asserting the right but on whether the expectation is
reasonable in light of all the surrounding
circumstances.

Moore, 928 A.2d at 1101, quoting Commonwealth v. Viall, 890 A.2d 419, 422
(Pa.Super. 2005). The Superior Court ultimately rejected the defendant's state
constitutional claim, finding an individual inmate's privacy concerns must give
way to the important institutional concern of internal correctional security. Id.,

8
at 1102, quoting Payne v. Commonwealth Dept. of Corrections, 871 A.2d 795,
809 (Pa. 2005), additional citations omitted. Further, the Superior Court found
the Pennsylvania Constitution affords an inmate no greater protection than the
Federal Constitution. Id., at 1102. The Court ultimately held that the
defendant "has no constitutional right to privacy in his non-privileged person
mail." Id.
The Superior Court had occasion, a mere three months later, to apply the
decision in Moore. In Commonwealth v. Thompson, 934 A.2d 1281 (Pa.Super.
2007), the defendant challenged the reading of his mail that was sent back to
the jail by the postal service marked "return-to-sender." Thompson, 934 A.2d
at 1286. The Court recognized the recent decision in Moore, and found Moore's
holding to be "that a prisoner has no constitutional right to privacy in his non-
privileged mail." Id. With no additional analysis, the Superior Court affirmed
the trial court's admission of the letter at trial. Id.
A reference to the Moore decision was made in Commonwealth v.
Faurelus, 147 A.3d 905 (Pa. 2016). In Faurelus, the Superior Court reviewed a
trial court's denial of post-conviction relief. Faurelus, 14 7 A.3d at 908. During
the initial prosecution, the defendant sought suppression of a letter "delivered
to the prosecutor's office" by an unidentified individual. Id., at 909. Inside the
envelope was another envelope, containing a letter purportedly written by the
defendant to his girlfriend. Id. The trial court denied suppression, and the
Superior Court affirmed. Id., at 909 - 910.
On appeal from denial of post-conviction relief, the Superior indicated in
a footnote that the suppression of the letter had been affirmed on direct appeal:
This Court pointed out on direct appeal that an inmate
generally has no constitutional right to privacy in his
non-privileged mail. Commonwealth v. Faurelus, No.
459 MDA 2010, unpublished memorandum at 7
(Pa.Super. filed September 28, 2011) (citing
Commonwealth v. Moore, 928 A.2d 1092, 1102
(Pa.Super. 2007).

9
Faurelus, 147 A.3d at 909, n. 1. It is not unreasonable, in light of these
subsequent citations to Moore, to conclude that Moore stands for the general
proposition for which it has been so cited: an inmate generally has no
constitutional right to privacy in his non-privileged mail. Suppression could be
denied herein on that finding alone.
However, even assuming arguendo, that Moore requires a trial court to
consider the unique factual and policy/ procedures of a given correctional
facility, the Defendant's claim still fails. This Court rejects out of hand the
Defendant's argument that Deputy Warden Sullen's failure to immediately
notify the Defendant that his out-going mail was being monitored somehow
violated the Defendant's privacy right in that mail. That argument
presupposes a privacy right existed in the out-going mail. The evidence
established no such reasonable expectation of privacy in outgoing mail, either
before or after notification of mail monitoring. In fact, the evidence established
the contrary.
Commonwealth's Exhibit 4 conclusively established that inmates are
instructed to put their outgoing mail "unsealed" in the designated box located
on their housing unit. This Jail directive is included in the Inmate Handbook,
and the Defendant was actually aware of, or such knowledge can be imputed to
him by, his receipt of the Handbook. Therefore, he knew or should have known
that the mail must be surrendered to jail officials in an unsealed fashion, i.e.,
in a fashion that allows jail officials to examine the contents. The fact that he
may have sealed it, in direct contravention of a known jail directive, does not
there by create a reasonable expectation of privacy in the mail. To hold
otherwise would allow all sorts of mischief in the correctional setting, i.e.
permitting willful ignorance by inmates to set the boundaries of constitutional
protection. It is the reasonable expectation of privacy, an expectation that
society is prepared to accept, that sets the bounds. In the correctional setting,
a requirement that outgoing mail be left with jail officials in an unsealed
fashion is reasonable to society, and no resulting expectation that the mail will

10
be sent out unexamined by jail staff inures to the Defendant. Therefore,
suppression of the letters will be denied.

MOTION TO SEVER DOCKET NOS. 947-2016 AND 1890-20166
The Defendant seeks to sever the charges filed at CP-28-CR-0000947-
2016 (Intimidation offenses) for a separate trial from the charges filed at CP-28-
CR-0001890-2016 (Solicitation & Conspiracy to Commit Murder of the First
Degree). Severance of charges is governed by Pa.R.Crim.P. 583:
The court may order separate trials of offenses or
defendants, or provide other appropriate relief, if it
appears that any party may be prejudiced by offenses
or defendants being tried together.

Pa.R.Crim.P. 583. Our appellate courts have set forth well-settled principles
for trial courts to consider when faced with a motion to sever charges:
Under Rule 583, the prejudice the defendant suffers
due to the joinder must be greater than the general
prejudice any defendant suffers when the
Commonwealth's evidence links him to a crime.

The prejudice of which Rule 583 speaks is, rather, that
which would occur if the evidence tended to convict
the appellant only by showing his propensity to
commit crimes, or because the jury was incapable of
separating the evidence or could not avoid cumulating
the evidence. Additionally, the admission of relevant
evidence connecting a defendant to the crimes charged
is a natural consequence of a criminal trial, and it is
not grounds for severance by itself.

In addition, where the defendant moves to sever
offenses not based on the same act or transaction ...
the court must therefore determine: (1) whether the
evidence of each of the offenses would be admissible in
a separate trial for the other; (2) whether such
evidence is capable of separation by the jury so as to
avoid danger of confusion; and, if the answers to these

6 Omnibus Motion, iJi1 26 - 33.
11
 inquiries are in the affirmative, (3) whether the
defendant will be unduly prejudiced by the
consolidation of offenses. Evidence of other crimes is
not admissible solely to show the defendant's bad
character or propensity to commit
crimes. Nevertheless, evidence of other crimes is
admissible to demonstrate:

(1) motive; (2) intent; (3) absence of mistake or
accident; (4) a common scheme, plan or design
embracing the commission of two or more crimes so
related to each other that proof of one tends to prove
the others; or (5) to establish the identity of the person
charged with the commission of the crime on trial, in
other words, where there is such a logical connection
between the crimes that proof of one will naturally
tend to show that the accused is the person who
committed the other.

Evidence of other crimes may be admitted where such
evidence is part of the history of the case and forms
part of the natural development of the facts.

Commonwealth v. Richard, 2016 PA Super 247, 150 A.3d 504, 509-10 (2016),
internal citations and quotations omitted (cleaned up).
The parties submitted Joint Exhibit 11 for the Court's consideration to
determine whether severance should be granted. Because the Defendant seeks
to sever the charges related to Intimidation of Witnesses, the Court will also
consider Commonwealth Exhibits 7 - 10.B Although the Defendant has not
asked for severance of the charges filed at CP-28-CR-0000950-2016, a review
of those is warranted. As needed, the Court has reviewed the Affidavits of
Probable Cause for all charges pending for one trial. The Court has ordered the
summary of the allegations in each case in chronological order.
7 This Exhibit consists of the Transcript of Proceedings of Preliminary Hearing held on February
14, 2017, in Commonwealth v. Brandon Maze, CP-28-CR-342-2017; Mr. Maze is a co-defendant
and that case has been joined with the Defendant's for one trial.
a These exhibits are copies of the letters, alleged to have been written by the Defendant, which
form the basis of the Intimidation charges; the exhibits were admitted during the hearing on
suppression, but the Court does not believe either party would object to their consideration on
the question of severance. However, as we note in more detail infra, the letters submitted in
evidence do not appear to match in several instances with the information in the Affidavit of
Probable Cause in support of the Intimidation charges.
12
 CP-28-CR-0000950-2016
Because this Affidavit of Probable Cause contains voluminous
information, the Court incorporates it herein by reference from the record.

CP-28-CR-OOO 1890-20169
On April 20, 2016, the Defendant advised Joseph King, Ryan Troskoski,
and Brandon Maze, that a tall, skinny, black male with a red hat and a short,
black male with a black hat, had tried to rob hini. King, Troskoski, and Maze
were associates/friends of the Defendant and would "hang out" together.
After receiving this information, King began to search for these
individuals in the Borough of Waynesboro, Franklin County. King observed
two individuals walking on Potomac Street near the Rutter's store; based on
King's observations, he believed these individuals were the ones described by
the Defendant.
King then called the Defendant with this information and was picked up
approximately five minutes later in the Rotary parking lot by Troskoski, Maze,
and the Defendant. Troskoski was driving, the Defendant was in the front seat,
Maze and King were in the rear seats. The Defendant provided King with a
firearm; the others in the car already had guns. King left his own car in the
area of the Rotary. They then proceeded to the area near Rutters where King
had observed the individuals.
Upon arrival, all four exited the vehicle. Maze and King were together
when they saw an individual walking in an alley. Maze called after the
individual and started chasing him before King could verify that it was one of
the individuals they were looking for. King ran after Maze. 10 or 15 seconds
after they began to chase this individual, King heard Maze fire his gun. The
individual they were chasing escaped. King then returned to his own car and
left the area. Maze ran away in a different direction; he did not return with
King.

9 These facts are drawn from Joint Exhibit 1 and are for purposes of deciding severance only.

13
 Approximately a week later, the Defendant, King, Maze, and Troskoski
met up again. They discussed the previous incident briefly, concluding that
the individual they chased was not who they were looking for.

CP-28-CR-0000947-201510
On May 9, 2016, the Defendant was taken into custody in relation to the
other pending charges set forth above. He was arrested during a search
warrant of his residence, which resulted in additional charges!' being filed
against the Defendant for violations of The Controlled Substance, Drug, Device
and Cosmetic Act.12 The Defendant was placed in the Franklin County Jail in
lieu of posting bail.
While incarcerated, the Defendant sent a letter to Terri Stottlemyer, the
pregnant girlfriend of Troskoski. See Commonwealth's Exhibit 5. In the letter,
the Defendant implores Stottlemyer to: l)find out what Troskoski has told the
police; 2) if Troskoski has given a statement against the Defendant, that
Troskoski should tell his lawyer that it was a lie; 3) to tell Troskoski to "stop
being a chicken shit" and that Troskoski "must not cooperate with the cops
under no circumstances." Id. Further, the Defendant states, "Tell [Troskoski]
he's already in trouble Terri and that we really need to talk because if [people]
find out he is telling Terri they will make him check in from where he is at."
The Defendant also sent a letter to "Mr. Rob," who apparently the
Commonwealth believes to be the Defendant's co-defendant, Ryan Troskoski.
This information is gleaned from the Affidavit of Probable Cause, as the Court
has been unable to identify any letter to a "Mr. Rob" or Ryan Troskoski
admitted as an exhibit in these proceedings.P There is a record from the jail

10 The summary of these allegations are gleaned from the Affidavit of Probable Cause.
11 Those charges were docketed at CP-28-CR-0000949-2016. The Defendant was ultimately
indicted by federal authorities for the drug offenses, and the Commonwealth was granted a
nolle pros of these charges.
12 35 P.S. § 780-101, et seq.
13 Commonwealth's Exhibit 5 is the aforementioned letter to Terri Stottlemyer.
Commonwealth's Exhibit 6 is a letter to "Bubbles" with a page attached bearing an envelope
addressed to "Brenda Jones," although there is no indication in the letter that "Bubbles" is the
same person as "Brenda Jones." Commonwealth's Exhibit 7 is a letter to a recipient that is

14
that the Defendant sent a letter to "Mr. Robert" on May 24, 2016, but the
actual letter was not submitted into evidence, or was not properly identified
among the exhibits that were admitted.
According to the Affidavit of Probable Cause, in the letter to "Rob" the
Defendant asks him to speak to Terri, presumably meaning Terri Stottlemyer.
The Defendant directs "Rob":
Plz make sure that you speak with Terri about the
issue at hand that we cannot talk about on the phone
about. She is my witness and you must make sure
she be ready to say the following so keep this and
make her remember to say: She was up and in the
room with Jess and Emma when B. Anthonys nephew
was getting ready to go to work around 0430 am, she
witness him put a Ziploc bag in the small fridge in
Jesses room and witness him pull out money and
plastic bags and placed them under the far side of jess
bed before he left for work, and most of time he hide
stuff in there when had to work. ..

He also wrote:
Plz make her, Terri, memorize this to make a
statement saying just that bro. Tell Terri also if they
ask her anything about me to just say Anthony's
hardly ever there because he lives in Hagerstown
because of his parole and that's all she know of
meetings is Im a nice person 'Bob plz' make Terri
remember this, it is extremely important that she this
exactly how I tell her to and she will have to make a
statement and testify.

Finally, the Defendant wrote, "Also don't let her forget that the storage that was
in my name is Johnny Michaels, and it was in my name b-cuz Johnny did not
have an ID. All of you'll must remember that."
The Defendant wrote a letter to "Ms. Shy." See Commonwealth's Exhibit
10. In the letter, the Defendant states:

unidentified. Commonwealth's Exhibit 8 is a letter addressed to "Jess." Commonwealth's
Exhibit 9 is a letter that is not addressed to anyone, and may even be only one page of a multi-
page letter. Commonwealth's Exhibit 10 is a letter addressed to "Ms. Shy."
15
 I'm not sure whats going on with Terries man but I'm
getting a bad vibe babe. I wish you would be so kind
as to ask Terri what is Ryan saying and to find out the
truth from him or what he is saying or if he is saying
anything. I tried to communicate with him but they
have him scared shitless I guess and for what I'm not
sure and I know its 1st time and everything but this is
truly ridiculous especially at this time. I got mad love
for Terri but he is really acting like a real pussy Babe.
Anyway if you can please let Terri know I mentioned
something to you because its kinda seems not right
plus child services has stepped in and said something
to me and Jess and this what I'm concerned about.
And I don't think he understands the seriousness of
this because anything he say against me gives them
leverage to try and take my child. Babe and Terri
needs to know that this is serious and its important
that he not do so!!

Commonwealth's Exhibit 10 (emphasis original).
The Defendant also wrote a letter to Ms. Mary Richardson.l" See
Commonwealth's Exhibit 6. In this letter, the Defendant states:
1st N farmost - my nick name is "Florida" or
-
"Anthony'' "Nothing Else" remember that; U-do-not
know me as no Ant - Not my name

#2 - Florida or Anthony lives-n-Hagerstown and I only
come to visit my daughter and her mother occasionally

14 Commonwealth's Exhibit 6 contains the language quoted by Officer Chappell in his Affidavit
of Probable Cause, and appears to be the letter stated by Ofc. Chappell to have been sent to
Mary Richardson. However, Commonwealth's Exhibit 6 also contains a copy of the envelope,
which is addressed to "Ms. Brenda Jones." The letter itself begins with the salutation "My
Baby! Bubbles!" The Court is unaware of whether this is an error on the part of the
Commonwealth, i.e., the envelope does not go with this letter, or whether "Brenda Jones" is
another name for "Mary Richardson" or whether "Bubbles" is another name for "Brenda Jones"
or "Mary Richardson." We note that Commonwealth's Exhibit 11, the mail log, contains
information indicating that the Defendant sent a letter to "Ms. Brenda Jones" on May 31, 2016,
and letters to "Ms. Mary Richardson" on May 31, 2016, and June 8, 2016 (2 letters); further,
these two names are associated with different mailing addresses. The mail log also reveals a
letter sent to "Mary Robinson" on June 24, 2016, with the same address as the letters sent to
"Mary Richardson" on May 31, 2016, and June 8, 2016. It is also possible that Ofc. Chappell
erred in his Affidavit regarding the intended recipient of the letter. However, there was no
explanation for these discrepancies offered by the Commonwealth at any point.
16
 #3 - All you witness me "Florida" do was stop a short
black guy from stabbing a teenage girl and walked
away

#4 - You tell them you screamed for me to watch out
and was to late and the short guy stabbed Florida
when he was not looking

#5 - Then after he stabbed Florida the guy ran.
Florida took chase after him then some guy with
dreads shot a gun and everyone ran in all directions

#6 - Also say that I do not live out here n-Waynesboro
that I live in Hagerstown, MD because of my parole

These four letters form the basis for the Intimidation charges.
The Defendant avers that these letters relate to the charges that were
ultimately nolle prossed by the Commonwealth, i.e., the drug charges for which
the Defendant is now federally indicted. See Omnibus Motion, , 31.15 As to the
letter to Terri Sottlemyer, the Court finds that the letter is probative of the
incidents in question, as it relates to whether the co-defendant (Troskoski) is
cooperating against the Defendant. The Defendant's conduct in the other
joined cases provides the motive for the letter to be sent, and the letter itself is
evidence of the Defendant's involvement with the co-defendant, i.e., "tell him
not to cooperate with the cops," etc. The Defendant is free to argue what
weight this letter is to be accorded, and what other alternative theories explain
the language used by the Defendant, but the jury will be able to separate the
charge related to the letter from the underlying alleged criminal acts quite
easily. As the Defendant himself points out, the letters were sent almost 2
months after the underlying criminal acts.

is The Defendant states "Specifically, the information contained in these letters speaks only to
the charges docketed at 947-2016; not to 1890-2016. As such, introduction of these letters in
a trial for the solicitation case will likely require evidence of Un-convicted bad acts that would
not otherwise be admissible under Pa.R.Evid. 404(b)." Omnibus Motion, ,r 31. The Defendant's
reference to docket 947-2016 appears to be in error, as 947-2016 is the Intimidation charges
themselves; the Defendant's argument makes sense if he intended to reference 949-2016, the
charges dismissed by the Commonwealth in favor of the federal indictment. We presume it to
be as such.
17
 The second letter, purportedly sent to Troskoski, i.e., Mr. Rob, is much
more problematic than the letter to Stottlemyer. It seems quite clear to the
Court, and no other theory of admissibility was put forth by the
Commonwealth, that the information the Defendant communicated (or
attempted to communicate) to Troskoski was related to the drug case, which is
no longer pending before this Court. While such a letter may still constitute
the crime of Intimidation of a Witness, it relates to crimes for which the
Defendant will not be standing trial, i.e., docket 949-2016. As previously
indicated, the Court could not locate a copy of the actual letter to "Mr. Rob" in
the exhibits; however, based upon the Affidavit of Probable Cause, it is neither
relevant nor probative of the underlying criminal charges. Therefore, severance
for a separate trial is warranted for CP-28-CR-0000947-2016 - Count 2.
As to the letters sent to "Mary Richardson" and "Ms. Shy,"15 they are
probative of the underlying conduct in CP-28-CR-0000950-2016 and CP-28-
CR-0001890-2016, although particularly so with CP-28-CR-0000950-2016. As
these two dockets are joined, and the Defendant has not asked that they be
severed, the letters would be admissible in that joint trial. Further, the
underlying criminal allegations in CP-28-CR-0000950-2016 and CP-28-CR-
0001890-2016 would be admissible in a separate trial for Intimidation because
they establish motive for the communications in the letters. Therefore,
severance is not warranted for CP-28-CR-0000947 -Counts 3 & 4.
CONCLUSION
The Defendant did not have a reasonable expectation of privacy in his
out-going mail at the Franklin County Jail. Therefore, suppression will be
denied. Count 2 at CP-28-CR-0000947-2016 will be severed for a separate
trial as the evidence appears to relate to charges which are not before the Court

16 We note that Count 4 of the Information indicates the intimidation is related to Jessica
Jones. However, the Affidavit of Probable Cause does not list or otherwise detail a letter to
"Jessica .Jones." We presume this is a clerical error, as the Affidavit of Probable Cause lists the
intended recipients of the letters as: 1) Terri Stottlemyer; 2) "Rob"; 3) Ms. Shy; and 4) Ms. Mary
Richardson. Assuming this is the case, the Commonwealth should make every effort to file an
appropriate motion to amend the Information appropriately prior to trial.
18
for a joined trial; the balance of the Defendant's request for severance will be
denied.
An appropriate order follows.

19