Com. v. Wesley, J.

J-A24032-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSEPH WESLEY : No. 1865 EDA 2018

Appeal from the Order Entered June 25, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004711-2017

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JOSEPH WESLEY : No. 1866 EDA 2018

Appeal from the Order Entered June 22, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0004711-2017

BEFORE: BENDER, P.J.E., DUBOW, J., and COLINS, J.*

MEMORANDUM BY COLINS, J.: FILED FEBRUARY 21, 2020

The Commonwealth appeals from two pre-trial orders that (1)

suppressed evidence collected from a cellular telephone (“cell phone”)

registered to Appellee, Joseph Wesley, but used by his girlfriend, Jennifer

Vance; (2) suppressed the cell-site location information (“CSLI”) obtained

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A24032-19

from a cell phone used by Appellee; (3) precluded the admission of text

messages exchanged between Appellee and Vance; and (4) precluded certain

prior bad act evidence related to Appellee’s sale of firearms and drugs to a

cooperating witness, Danielle Miller.1 We affirm in part and vacate in part the

trial court’s determination regarding the prior bad act evidence and reverse

the remainder of the trial court’s rulings.

On December 2, 2016, Miller and Stephen Rowl were shot while sitting

in a vehicle outside Miller’s home in Norristown, Pennsylvania. On May 9,

2017, a criminal complaint was filed charging Appellee with attempted murder

of the first degree, solicitation to commit murder of the first degree,

conspiracy to commit murder of the first degree, and conspiracy to commit

aggravated assault related to this shooting.2 In the affidavit of probable

cause, it was alleged that Appellee hired Darnelle Bean to murder Miller

because Miller was a cooperating witness in a prosecution of Appellee related

to an April 15, 2016 transaction in which Appellee sold Miller assault rifles and

a June 28, 2016 in which Appellee sold Miller a semi-automatic rifle, a

handgun, and cocaine. On June 15, 2018, following a stipulated bench trial,

Appellee was convicted of several offenses related to the June 28, 2016

____________________________________________

1 Though the orders at issue do not dispose of the entire case, the
Commonwealth certified in its notices of appeal that the orders terminate or
substantially handicap its prosecution of Appellee and therefore are
appealable as of right. See Pa.R.A.P. 311(d).
2 18 Pa.C.S. §§ 901(a), 902(a), and 903(a)(1), respectively.

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transaction, including the illegal sale or transfer of firearms and possession

with intent to deliver a controlled substance.3 Commonwealth v. Wesley,

No. 3084 EDA 2018 (Pa. Super. filed December 12, 2019) (affirming

convictions).

The trial court noticed trial to begin in the instant case on June 25, 2018.

Prior to trial, the Commonwealth filed a motion in limine to admit evidence

related to Appellee’s prior bad acts related to the firearm and drug sales to

Miller. Appellee filed a motion in limine to preclude or limit the use of this

prior bad act evidence at trial. Appellee also filed a motion in limine to

preclude the admission of an October 20, 2016 text message conversation

between Appellee and Vance obtained from Vance’s phone; specifically

Appellee requested that the trial court deny the admission of Appellee’s text

message to Vance:

I’m over this shit. Don’t hate me when there is a dead body in
town. That’s all I’m saying.

Appellee’s Motion in Limine to Preclude Text Messages Between Appellee and

Vance, 6/18/18, ¶7.

In addition, Appellee filed two suppression motions. In the first,

Appellee sought to suppress evidence collected from a cell phone with the
____________________________________________

3 18 Pa.C.S. § 6111(c) and 35 P.S. § 780-113(a)(3), respectively. Appellee
was also convicted of offenses related to the April 15, 2016 sale of firearms,
but these convictions were nolle prossed following trial because the firearms
sold on that date did not fall within the illegal sale or transfer of firearms
statute. Commonwealth v. Wesley, No. 3084 EDA 2018, unpublished
memorandum at 3 & n.3 (Pa. Super. filed December 12, 2019).

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number 267-638-7499 used by Vance but registered to Appellee (“7499

Phone”); Appellee challenged the seizure on the grounds that the search

warrant for the 7499 Phone included in its “items to be searched and seized”

the “[e]ntire contents of the phone,” including “text messages, emails, phone

numbers, call logs,” but did not state that the phone itself was to be seized.

Appellee’s Motion to Suppress Evidence Seized From Vance’s Cellular Phone,

6/18/18, ¶¶5-6. In the other suppression motion, Appellee asserted that the

Commonwealth obtained CSLI data from four cell phones that he owned or

used pursuant to a court order rather than a warrant and that such a

warrantless search of his CSLI was unconstitutional.

On June 22, 2018, the trial court held a hearing on the motions in limine

and suppression motions. At the conclusion of the hearing, the trial court

issued its rulings regarding the motions in limine. The trial court granted

Appellee’s motion in limine to preclude the admission of the October 20, 2016

text message exchange between Appellee and Vance. Order, 6/25/18; N.T.,

6/22/18, at 59-60. With respect to the prior bad act evidence, the trial court

ruled that the Commonwealth could only present evidence relating to seven

identified topics concerning the general facts of the April and June 2016

purchases of drugs and firearms from Appellee and the ensuing criminal case.

Order, 6/25/18; see also N.T., 6/22/18, at 57-58. The trial court further

ruled that the Commonwealth could not admit into evidence the firearms,

photographs of the firearms, the audio or video captured from the incidents,

or the transcript of the recorded audio. N.T., 6/22/18, at 58.

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At a June 25, 2018 hearing, the trial court granted both of Appellee’s

suppression motions and announced its findings of facts and conclusions of

law. With respect to the search and seizure of the 7499 Phone used by Vance,

the court found that Appellee had standing to challenge the seizure and a

legitimate expectation of privacy with respect to the phone as a result of the

fact that the account information AT&T, the cell phone provider associated

with the phone, showed that he was the financially responsible party and the

user of the phone. N.T., 6/25/18, at 5-6. The court further found that both

the search warrant application and affidavit of probable cause state that

officers had already seized the phone and neither of these documents

indicates a basis for the seizure. Id. at 4-5. As there was no valid warrant

for the seizure of the phone and no exception to the search warrant was

asserted, the court granted the motion to suppress. Id. at 6; see also Order,

6/25/18.

With respect to the motion to suppress the CSLI, the trial court

recognized that, under the United States Supreme Court’s decision of

Carpenter v. United States, 138 S.Ct. 2206 (2018), issued on the day of

the suppression hearing, CSLI was protected by the Fourth Amendment of the

United States Constitution. Id. at 2217. The trial court concluded that the

procedure initially used to obtain CSLI for Appellee’s four cell phones in

December 2016 – pursuant to orders issued under the federal Stored

Communications Act, 18 U.S.C. § 2703(d), and orders under Pennsylvania’s

Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”) – did not

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pass constitutional muster under Carpenter. N.T., 6/25/18, at 9-10.

However, the court noted that the Commonwealth had obtained search

warrants with respect to three of the four phones in the days prior to the

suppression hearing; the court found that the CSLI reports obtained pursuant

to the warrants satisfied Carpenter. Id. at 10. The court therefore denied

the suppression motion with respect to the CSLI collected via warrants from

these three cell phones, but granted the motion with respect to the

information obtained from the fourth cell phone, with the number 267-250-

0395 (“0395 Phone”), as to which no warrant was obtained. Id. at 10-11;

Order, 6/25/18.

On June 25, 2018, the trial court entered written orders memorializing

its rulings at the June 22nd and June 25th hearings. The Commonwealth filed

timely notices of appeals from the trial court orders.4

____________________________________________

4 On June 25, 2018, the Commonwealth filed separate notices of appeal from
the trial court’s June 22nd oral rulings regarding the motions in limine and its
June 25th oral rulings regarding the suppression motions. Also on June 25th
but subsequent to the entry of the notices of appeal, separate trial court orders
were entered on the docket memorializing its earlier rulings, thus complying
with Rule of Appellate Procedure 301 pertaining to the requisites for an
appealable order. See Pa.R.A.P. 301(a)(1), (b) (stating that “no order of a
court shall be appealable until it has been entered upon the appropriate docket
in the lower court” and that “[e]very order shall be set forth on a separate
document”). Although the notices of appeal were filed prior to the entry of
the appealable orders, we treat them as timely filed. See Pa.R.A.P. 905(a)(5)
(“A notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”).

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The Commonwealth raises the following issues on appeal:

[I]. Whether the trial court erred in suppressing evidence seized
from Jennifer Vance's cell phone, where [Appellee] did not have
standing because he had no legitimate expectation of privacy in
the phone that was exclusively used by and paid-for-on-a-
monthly-basis by Ms. Vance and, in any event, the seizure was
proper because law enforcement was permitted to seize and
secure the cell phone to prevent the destruction of evidence while
they obtained a search warrant for its contents?

[II]. Whether the trial court erred in suppressing the cell phone
records, including cell-site location information, for [Appellee’s]
phone, (267) 250-0395, based on Carpenter v. United States,
where the search was conducted in full compliance with
Pennsylvania’s Wiretap Act, and was supported by probable
cause?
[III]. Whether the trial court abused its discretion in precluding
the Commonwealth from introducing into evidence a text message
[Appellee] sent to his girlfriend the day before he solicited a
murder, that stated, “don't hate me when there is a dead [body]
in town,” where the evidence is relevant to establish two material
elements of the offenses charged, intent and malice, and is also
relevant to establish [Appellee’s] motive for the murder and
demonstrate the history and natural development of the case?

[IV]. Whether the trial court abused its discretion in limiting the
Commonwealth in the prior bad act evidence it could introduce
from [Appellee’s] case involving the illegal sale of guns and drugs
to Ms. Miller, where the evidence was relevant to establish intent
and motive, and as part of the history and natural development of
the case and thus, the court should have permitted the
Commonwealth to demonstrate the strength of its Rule 404(b)
exceptions through all available evidence?

____________________________________________

The Commonwealth filed timely Pa.R.A.P. 1925(b) concise statements of
errors complained of on appeal on July 13, 2018, and the trial court issued its
Pa.R.A.P. 1925(a) opinion on November 14, 2018. This Court entered an
order consolidating the Commonwealth’s two appeals on January 25, 2019.

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Commonwealth Brief at 9-10 (reordered for ease of disposition; trial court

rulings omitted).

Motion to Suppress – Seizure of 7499 Phone

Our standard of review of a trial court’s ruling on a suppression motion

is “whether the factual findings are supported by the record and whether the

legal conclusions drawn from those facts are correct.” Commonwealth v.

Duke, 208 A.3d 465, 469 (Pa. Super. 2019) (citation omitted). We are bound

by the facts found by the trial court so long as they are supported by the

record. Id. at 470. The trial court has sole province as factfinder to pass on

the credibility of witnesses and the weight to be given to their testimony. Id.

We are not bound by the trial court’s conclusions of law, and our review of

questions of law is de novo. Commonwealth v. Fulton, 179 A.3d 475, 487

(Pa. 2018). Our scope of review from a suppression ruling is limited to the

evidentiary record created at the suppression hearing. Id.

The Commonwealth first argues that the trial court’s suppression of the

evidence from the 7499 Phone was improper because Appellee lacked

standing to challenge the suppression and he further lacked a legitimate

expectation of privacy in the phone. The Commonwealth asserts that the

unequivocal evidence established that Appellee had no possessory interest in

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the phone, but rather that the 7499 Phone was seized from Vance, Vance was

the exclusive user of the phone, and she paid the phone’s monthly bill.5

“A defendant moving to suppress evidence has the preliminary burden

of establishing standing and a legitimate expectation of privacy.”

Commonwealth v. Maldonado, 14 A.3d 907, 910 (Pa. Super. 2011). As

our Supreme Court has explained, the standing and privacy analyses are

separate and distinct:

While cursorily similar, standing and privacy interests are different
concepts serving different functions. Standing is a legal interest
that empowers a defendant to assert a constitutional violation and
thus seek to exclude or suppress the government’s evidence
pursuant to the exclusionary rules under the Fourth Amendment
to the United States Constitution or Article 1, Section 8 of the
Pennsylvania Constitution. It ensures that a defendant is
asserting a constitutional right of his own. The expectation of
privacy is an inquiry into the validity of the search or seizure itself;
if the defendant has no protected privacy interest, neither the
Fourth Amendment or Article I, § 8 is implicated. In essence,
while a defendant’s standing dictates when a claim under Article
I, § 8 may be brought, his privacy interest controls whether the
claim will succeed-once a defendant has shown standing, he must,
in short, having brought his claim, demonstrate its merits by a
showing of his reasonable and legitimate expectation of privacy in
the premises.

____________________________________________

5 The Commonwealth also argues that, even if Appellee could challenge the
seizure of the 7499 Phone, the police acted properly in seizing the phone
pursuant to a valid warrant authorizing the search of the phone’s contents and
that the seizure of the phone was also supported by exigent circumstances
related to the potential destruction of evidence and the fact that the phone
might provide information on locating Appellee who had fled Pennsylvania
after the shooting of Miller. Because we conclude that Appellee had no
standing to challenge the seizure of the phone nor a legitimate expectation of
privacy in the phone, we do not reach these additional arguments.

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Commonwealth v. Shabezz, 166 A.3d 278, 286-87 (Pa. 2017) (citations,

brackets, and quotation marks omitted).

A defendant must demonstrate one of the following interests to show

standing:

(1) his presence on the premises at the time of the search and
seizure; (2) a possessory interest in the evidence improperly
seized; (3) that the offense charged includes as an essential
element the element of possession; or (4) a proprietary or
possessory interest in the searched premises.

Maldonado, 14 A.3d at 910 (citation omitted).

An expectation of privacy will be found to exist when the defendant

exhibits “an actual or subjective expectation of privacy and that expectation

is one that society is prepared to recognize as reasonable.” Commonwealth

v. Kane, 210 A.3d 324, 330 (Pa. Super. 2019). In determining whether the

defendant’s expectation of privacy is legitimate or reasonable, “we must

consider the totality of the circumstances and the determination ultimately

rests upon a balancing of the societal interests involved.” Id. (citation and

quotation marks omitted). “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.” Id. (citation omitted).

An individual may still maintain a legitimate expectation of privacy in

personal property that is seized outside of his presence

[s]o long as a person seeks to preserve his effects as private, even
if they are accessible to. . . others. Stated differently, a person
must maintain the privacy of his possessions in such a fashion that

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his expectations of freedom from intrusion are recognized as
reasonable.

Commonwealth v. Hawkins, 718 A.2d 265, 267 n.1 (Pa. 1998) (citation

omitted; emphasis in original). However, an individual cannot establish a

reasonable expectation of privacy in his effects where he “has meaningfully

abdicated his control, ownership or possessory interest.” Kane, 210 A.3d at

330 (citation omitted).

[A]bandonment of a privacy interest is primarily a question of
intent and may be inferred from words spoken, acts done, and
other objective facts. All relevant circumstances existing at the
time of the alleged abandonment should be considered. The issue
is not abandonment in the strict property-right sense, but whether
the person prejudiced by the search had voluntarily discarded, left
behind, or otherwise relinquished his interest in the property in
question so that he could no longer retain a reasonable
expectation of privacy with regard to it at the time of the search.

Id. at 330-31 (citations and quotation marks omitted).

At the suppression hearing, the Commonwealth and Appellee stipulated

that on December 6, 2016, Vance was served with a search warrant at her

place of employment in Norristown, and the police seized the 7499 Phone from

her. N.T., 6/22/18, at 8-9. The provider for the 7499 Phone is AT&T, and

AT&T’s subscriber information identifies Appellee as the billing and financially

liable party for that phone. Id. at 9; Defense Suppression Exhibit 1. In

addition, the parties stipulated to the following conversation between Vance

and a detective on December 4, 2016:

[Detective:] Who is your phone provider[?]

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[Ms. Vance:] Sprint. Let me think about it. Who’s the ball?
AT&T. I don’t pay attention to it really. I just call the number on
the phone and pay the bill. It’s pretty easy.

***

[Detective:] Does [Appellee] know you’re here talking to us
today?

[Ms. Vance:] I don’t think so. I didn’t tell him I was coming
because I have no reason to. He’s not involved, and I know that
because he’s not in this town. He’s not in this state. He’s not in
PA.

N.T., 6/22/18, at 10-12. The trial court concluded that Appellee had standing

to challenge the seizure of the 7499 Phone and a legitimate expectation of

privacy in the phone because he was listed in AT&T account information as

the financially liable party and the user of the phone. N.T., 6/25/18, at 5-6;

see also Trial Court Opinion at 8.

Upon these stipulated facts, the trial court erred in concluding that

Appellee had standing or a legitimate expectation of privacy with respect to

the 7499 Phone. With respect to standing, it is inarguable that Appellee could

not satisfy the first, third, and fourth standing interests as he was not present

when the seizure took place at Vance’s workplace, he did not have a

proprietary or possessory interest in that location, and he was not charged

with a possessory offense related to the phone. Maldonado, 14 A.3d at 910.

Furthermore, Appellee did not have a possessory interest in the phone at the

time it was seized. Id. While Appellee was listed as the user of the phone

and financially liable party in AT&T’s records, Appellee was not in possession

of the phone when it was seized, and, in fact, he was not in Pennsylvania at

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the time of the seizure. No evidence was presented that Appellee had a

possessory interest in the phone at the time it was seized or that he was

intending to return to Pennsylvania in the future to establish a possessory

interest in the phone that would grant him the standing to contest its seizure.

Appellee likewise lacked a legitimate expectation of privacy in the 7499

Phone. The stipulated evidence establishes that Vance possessed and used

the phone, and she regularly paid the bill for the phone directly without

Appellee’s involvement. No evidence was submitted that Appellee had

attempted to preserve the privacy of his phone by entrusting it to Vance for

safe-keeping. Hawkins, 718 A.2d at 267 n.1. Rather, Vance knew that

Appellee had left the state at the time of her interactions with the police, and

she did not feel compelled to inform him that she was having discussions with

police because “[h]e’s not involved, and I know that because . . . [h]e’s not in

this state.” N.T., 6/22/18, at 12. Accordingly, by virtue of the fact that

Appellee had left the state without the phone and ceased communicating with

Vance, Appellee meaningfully abdicated his possession and control of the

phone therefore abandoning his constitutionally protected privacy interest.

See Kane, 210 A.3d at 331 (holding that defendant did not have a reasonable

expectation of privacy over cell phone that he intentionally left on and

recording in a public restroom).

Commonwealth v. Benson, 10 A.3d 1268 (Pa. Super. 2010), relied

on by the trial court to support its determination that Appellee had a legitimate

expectation of privacy in the 7499 Phone, is inapposite. In that case, police

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obtained telephone bills via a warrant issued to the provider for a cell phone

that the appellant used, but which was owned and registered to his ex-

girlfriend. Id. at 1271. This Court concluded that the appellant had no

legitimate expectation of privacy in the phone records because he was not the

owner of the phone and therefore he “had no legal right to request or control

access to the information from the telephone company.” Id. at 1274. Unlike

in Benson, authorities here did not attempt to obtain phone bills or records

from AT&T but rather seized the phone itself from Vance, who was the sole

user of the phone. Just as in Benson the defendant did not have a legitimate

expectation of privacy in the telephone bills because he was not the owner of

the phone, in the present case, Appellee, though the registered owner of the

phone with the provider, did not have a legitimate expectation of privacy with

respect to the seizure of and collection of evidence from the phone itself when

he did not use or possess the phone and there was no evidence that he

intended to reassert a possessory interest in the phone in the future.

Motion to Suppress – Cell-Site Location Information

The Commonwealth next challenges the trial court’s grant of Appellee’s

motion to suppress the CSLI records obtained from Appellee’s 0395 Phone

pursuant to the United States Supreme Court’s decision in Carpenter. The

Commonwealth argues that, unlike in Carpenter, the order that served as

the basis for the retrieval of CSLI for the 0395 Phone was supported by

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probable cause and issued pursuant to the procedural requirements of the

Pennsylvania Wiretap Act.6

Appellee filed a motion to suppress the CSLI obtained from four of his

cell phones. The Commonwealth initially acquired CSLI from three of these

phones through a Wiretap Act order or grand jury subpoena, but then later

applied for search warrants for the CSLI for these three phones just prior to

the suppression hearing. With respect to the 0395 Phone, however, the

Commonwealth did not seek a search warrant for the CSLI, and therefore it

relied solely on its December 9, 2016 order obtained pursuant to the Wiretap

Act. N.T., 6/22/19, at 18; Commonwealth Suppression Exhibit 6. The

December 9, 2016 order was issued by a judge of the Court of Common Pleas

of Montgomery County pursuant to Section 5743 of the Wiretap Act, 18

Pa.C.S. § 5743. Commonwealth Suppression Exhibit 6, Order, 12/9/16, ¶2;

see also id., Application at 1. The December 9, 2016 order required

Appellee’s cell phone provider to disclose CSLI from the 0395 Phone from

October 1, 2016 through the date of the issuance of the order, so-called
____________________________________________

6 The Commonwealth also challenges on appeal the trial court’s conclusion in
its Rule 1925(a) opinion that the CSLI from the 0395 Phone should be
suppressed on the separate basis that the probable cause affidavit in support
of the December 9, 2016 order cites to text messages obtained from the 7499
Phone unconstitutionally seized from Vance. Trial Court Opinion at 11-12. As
we have reversed the trial court’s ruling regarding the suppression of the 7499
Phone, see supra, there was no infringement on Appellee’s constitutional
rights based on the Commonwealth’s citation to the messages extracted from
the 7499 Phone in its application for the order for the CSLI data for the 0395
Phone.

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“historical CSLI,” and also authorized the relevant authorities to actively

monitor Appellee’s global positioning for up to 30 days from the date of the

order, referred to as “real-time CSLI.”7 Id., ¶¶3-5, 8.

The trial court denied the suppression motion as to the CSLI data from

Appellee’s three cell phones for which the Commonwealth obtained a search

warrant. N.T., 6/25/18, at 10. However, the trial court granted the motion

with respect to the CSLI gathered from the 0395 Phone, finding that the

December 9, 2016 order did not comply with Carpenter. N.T., 6/25/18, at

9-10; Trial Court Opinion at 12. Specifically, the trial court rejected the

Commonwealth’s contention that the December 9, 2016 order was the

functional equivalent of a search warrant, stating that CSLI obtained pursuant

to an order violates “the plain language of Carpenter, [which] mandates the

use of a search warrant to acquire CSLI data.” Trial Court Opinion at 12.

“Both the Fourth Amendment of the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution guarantee individuals

freedom from unreasonable searches and seizures.” Commonwealth v.

Newsome, 170 A.3d 1151, 1154 (Pa. Super. 2017) (citation omitted).

“Article I, Section 8 and the Fourth Amendment each require that search

warrants be supported by probable cause.” Commonwealth v. Jones, 988

A.2d 649, 655 (Pa. 2010). “Probable cause exists where the facts and

____________________________________________

7 Commonwealth v. Pacheco, ___ A.3d ___, 2020 PA Super 14, *2-4 & n.3
(filed January 24, 2020) (describing the procedure and technology associated
with the collection of historical and real-time CSLI).

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circumstances within the affiant’s knowledge and of which he has reasonably

trustworthy information are sufficient in themselves to warrant a man of

reasonable caution in the belief that a search should be conducted.” Id.

(citation omitted). The task of the issuing authority in issuing a warrant is to

“to make a practical, common sense assessment of whether, given all the

circumstances set forth in the affidavit, a fair probability exists that

contraband or evidence of a crime will be found in a particular place.”

Commonwealth v. Harlan, 208 A.3d 497, 505 (Pa. Super. 2019) (citation

omitted).

In Carpenter, federal prosecutors applied for and obtained orders for

the disclosure of a four-month period of historical CSLI data pertaining to

Carpenter pursuant to the Stored Communications Act; that statute permits

the government “to compel the disclosure of certain telecommunications

records when it ‘offers specific and articulable facts showing that there are

reasonable grounds to believe’ that the records sought ‘are relevant and

material to an ongoing criminal investigation.’” 138 S.Ct. at 2212 (quoting 18

U.S.C. § 2703(d)). Following Carpenter’s conviction, he appealed challenging

the trial court’s refusal to suppress the CSLI because it had been obtained

without a warrant supported by probable cause. Id. at 2212-13.

The Supreme Court held that “an individual maintains a legitimate

expectation of privacy in the record of his physical movements as captured

through CSLI,” noting that “when the [g]overnment tracks the location of a

cell phone it achieves near perfect surveillance, as if it had attached an ankle

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monitor to the phone’s user.” Id. at 2217-18. The Court rejected the

government’s contention that Carpenter’s privacy interest was not implicated

because the CSLI was obtained from a third-party, the cell-phone provider,

rather than the cell-phone user directly because the location information was

“not truly ‘shared’ [with a third party] as one normally understands the term.”

Id. at 2220. The Court therefore held that “the acquisition of [Carpenter’s

historical CSLI] was a search within the meaning of the Fourth Amendment,”

yet reserved the issue of whether the acquisition of other location information

from a cell-phone provider, such as real-time CSLI data, is also protected

under the Fourth Amendment. Id.

Having concluded that a search occurred, the Supreme Court held that

“the Government must generally obtain a warrant supported by probable

cause before acquiring [CSLI],” except where circumstances exist that would

allow a warrantless search to proceed through one of the recognized

exceptions to the warrant requirement. Id. at 2221-23. Turning back to the

facts of the case before it, the Court concluded that the “reasonable grounds”

standard required for an order under the Stored Communications Act fell “well

short of the probable cause required for a warrant.” Id. at 2221 (quoting 18

U.S.C. § 2703(d)). The Court noted that the Stored Communications Act

allowed the government to compel the production of CSLI records simply upon

the government’s representation that the data was pertinent to an ongoing

investigation, a “gigantic departure” from the probable cause standard

necessary for a warrant that requires “some quantum of individualized

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suspicion before a search or seizure may take place.” Id. (citation and

quotation marks omitted).

Following Carpenter, this Court decided Commonwealth v. Pacheco,

___ A.3d ___, 2020 PA Super 14 (filed January 24, 2020). In Pacheco,

authorities were investigating Pacheco related to the interstate transport of

drugs and obtained orders pursuant to Subchapter E of the Wiretap Act, 18

Pa.C.S. §§ 5771-5775, requiring Pacheco’s cell phone provider to turn over to

authorities his real-time CSLI. Pacheco, 2020 PA Super 14, *2. Based on

their monitoring of the CSLI, authorities were able to track Pacheco

transporting drugs from Georgia to New York through Pennsylvania and they

ultimately apprehended him during one of these trips. Id. at *4-5. Pacheco’s

motion to suppress the CSLI evidence was denied, and he was convicted of

various charges. Id. at *5-6.

Pacheco appealed, arguing, inter alia, that the trial court erred in not

suppressing the warrantless tracking of his real-time CSLI in light of

Carpenter, which was decided after his conviction. We first held that, while

the High Court did not reach the issue of whether an individual has a legitimate

expectation of privacy of real-time CSLI, there was no meaningful distinction

between the privacy interests as to historical and real-time CSLI and therefore

the authorities conducted a “search” of Pacheco when they accessed his real-

time CSLI. Id. at *17-19. Having concluded that a search occurred, we

turned to the question of whether the Wiretap Act orders used to determine

Pacheco’s location satisfied the warrant requirement of the Fourth

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J-A24032-19

Amendment. Id. at *20. In analyzing this issue, we looked to the test set

forth in Dalia v. United States, 441 U.S. 238 (1979), which held that an

order issued under the federal wiretap act can satisfy the Fourth Amendment

warrant requirement so long as three factors are satisfied: (1) the order was

issued by a neutral and disinterested magistrate; (2) the applicant for the

order demonstrated to the magistrate “probable cause to believe that the

evidence sought will aid in a particular apprehension or conviction for a

particular offense”; and (3) the order “particularly describe[d] the things to

be seized, as well as the place to be searched.” Pacheco, 2020 PA Super 14,

*21-22 (quoting Dalia, 441 U.S. at 255) (quotation marks omitted).

Applying the Dalia test to the facts of Pacheco, we concluded that the

real-time CSLI orders satisfied each of the three requirements. Id. at *22-

24. First, we observed that the orders were issued by a neutral and

disinterested magistrate, namely a judge of the court of common pleas, who

was authorized by the Wiretap Act to issue such orders. Id. at *23. Second,

the orders specifically stated that the issuing court found “probable cause”

that the real-time CSLI would aid in the apprehension of Pacheco related to

drug offenses, and this probable cause determination was grounded upon a

detailed affidavit of probable cause submitted to the court setting forth the

status of the investigation of Pacheco. Id. at *23-25. Finally, we noted that

the orders described with particularity the place to be searched, Pachecho’s

cell phone, and the item to be seized, his real-time CSLI data. Id. at *24.

We therefore determined that the orders for the collection of Pacheco’s real-

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J-A24032-19

time CSLI were warrants for the purposes of the Fourth Amendment analysis

and the search conducted of his CSLI was constitutional. Id. at *24, 26.

Presently, there is no question that, under Carpenter and Pacheco,

the government’s efforts to obtain over two months of historical CSLI and up

to 30 days of real-time CSLI from Appellee’s 0395 Phone constituted a search

within the meaning of the Fourth Amendment. Carpenter, 138 S.Ct. at 2220;

Pacheco, 2020 PA Super 14, *17-19. Applying the three-part test set forth

in Dalia, however, we conclude that, as in Pacheco, the December 9, 2016

order used to access the historical and real-time CSLI from the 0395 Phone

was a warrant for the purpose of the Fourth Amendment. First, the December

9, 2016 order was issued by a neutral and disinterested magistrate, namely a

judge of the Court of Common Pleas of Montgomery County who was

authorized under the Wiretap Act to issue the order. See 18 Pa.C.S. §§ 5702,

5743(c)(2)(iii), (d).

Second, the judge issuing the warrant found that there was “probable

cause to believe that the records or other information” related to the 0395

Phone are “relevant and material to a criminal investigation of [Appellee]

relating to violations of the Crimes Code,” including the possession with intent

to deliver a controlled substance suspected as being conducted by Appellee

from the 0395 Phone. Commonwealth Suppression Exhibit 6, Order, 12/9/16,

¶1. The application for the order was supported by a 22-page affidavit sworn

to by a detective in the Montgomery County Detective Bureau, containing a

detailed explanation of the status of the investigation of Appellee for his

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J-A24032-19

firearm and drug sales to Miller. The detective explained that an arrest

warrant had been issued for Appellee in that other case but that Appellee had

taken steps to evade apprehension, Appellee was believed to be actively using

the 0395 Phone, and that the ability to access the CSLI data from the 0395

Phone could aid in his apprehension. Commonwealth Suppression Exhibit 6,

Affidavit, 12/9/16, at 18-21; see also N.T., 6/22/18, at 28.

Third, the December 9, 2016 order “particularly describe[d] the things

to be seized, as well as the place to be searched.” Pacheco, 2020 PA Super

14, *22 (quoting Dalia, 441 U.S. at 255) (quotation marks omitted). The

order stated that the place to be searched was “the records or other

information provided by AT&T” for the 0395 Phone. Commonwealth

Suppression Exhibit 6, Order, 12/9/16, ¶1 (emphasis omitted). The order also

clearly identified the items to be seized: the historical CSLI for the two months

prior to the date of the order and real-time CSLI for the next 30 days as

requested.

The December 9, 2016 order authorizing the seizure of the CSLI data

for the 0395 Phone was issued pursuant to Section 5743 of the Wiretap Act,

which requires that an officer demonstrate “specific and articulable facts”

showing that there are “reasonable grounds to believe” that the requested

material was “relevant and material to an ongoing criminal investigation.” 18

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J-A24032-19

Pa.C.S. § 5743(d).8 While this provision does not require that the applicant

submit an affidavit or that the judge make its determination as to the issuance

of the order on a probable cause standard, the December 9, 2016 order at

issue here was in fact based upon a finding of probable cause supported by a

sworn affidavit providing a detailed recitation of the investigation of Appellee

to date. Furthermore, the issuing judge did not merely make a determination

that the CSLI records would be relevant to an ongoing investigation, but rather

that the records were relevant to Appellee’s criminal behavior, therefore

satisfying the requirement that there be “some quantum of individualized

____________________________________________

8 This section provides:
(c) Records concerning electronic communication service or
remote computing service.--
...
(2) A provider of electronic communication service or remote
computing service shall disclose a record or other information
pertaining to a subscriber to or customer of the service . . . to an
investigative or law enforcement officer only when the
investigative or law enforcement officer:
...
(iii) obtains a court order for the disclosure under subsection
(d); or
...
(d) Requirements for court order.--A court order for disclosure
under subsection (b) or (c) shall be issued only if the investigative or
law enforcement officer shows that there are specific and articulable
facts showing that there are reasonable grounds to believe that the
contents of a wire or electronic communication, or the records or other
information sought, are relevant and material to an ongoing criminal
investigation.
18 Pa.C.S. § 5743(c)(2)(iii), (d).

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J-A24032-19

suspicion” prior to the search taking place. Carpenter, 138 S.Ct. at 2221

(citation omitted). As this Court explained in Pacheco, the relevant factors

in determining whether an order is a warrant for the purpose a Fourth

Amendment analysis are those set forth in Dalia, and the “nomenclature”

used to describe the level of suspicion in the underlying statute authorizing

the search is “irrelevant” to this analysis. 2019 PA Super 14, *24 n.17; see

also Commonwealth v. Burgos, 64 A.3d 641, 652-56 (Pa. Super. 2013)

(holding that an order authorizing the placement of a global positioning

system tracking device was the “functional equivalent of [a] traditional search

warrant” where the issuing judge made a finding that probable cause existed

even though the authorizing statute only required that the order be premised

upon a finding of “reasonable suspicion”).

Accordingly, we conclude pursuant to Pacheco and Dalia that the

December 9, 2016 order was a warrant under the Fourth Amendment. As the

search of the CSLI records related to the 0395 Phone was supported by a

warrant, there was no violation of Carpenter. Therefore, we reverse the trial

court’s order suppressing the CSLI from the 0395 Phone based upon the

absence of a search warrant.9

____________________________________________

9 We note that Appellee sought suppression of the CSLI from the 0395 Phone
solely on the basis that the Commonwealth did not obtain a warrant, and he
did not raise the merits of the probable cause determination or whether the
Commonwealth complied with the proper procedure under the Wiretap Act for
obtaining this material.

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J-A24032-19

Motion in Limine – October 20, 2016 Text Messages

In its third issue, the Commonwealth contends that the trial court

abused its discretion in precluding the admission of October 20, 2016 text

messages extracted from the 7499 Phone because the messages – particularly

Appellee’s statement “[d]on’t hate me when there is a dead body in town” –

were relevant to show his specific intent to kill Miller, his motive in wanting

Miller killed, and as res gestae evidence to explain the complete story of

Appellee’s criminal acts. In reviewing a trial court’s evidentiary ruling, we are

guided by the following standard:

The admissibility of evidence is a matter within the sound
discretion of the trial court and will be reversed only where there
is a clear abuse of discretion. . . . Evidence is admissible if it is
relevant—that is, if it tends to establish a material fact, makes a
fact at issue more or less probable, or supports a reasonable
inference supporting a material fact—and its probative value
outweighs the likelihood of unfair prejudice.

Commonwealth v. Clemons, 200 A.3d 441, 474 (Pa. 2019) (citations

omitted). “Evidence will not be prohibited merely because it is harmful to the

defendant. [E]xclusion is limited to evidence so prejudicial that it would

inflame the jury to make a decision based on something other than the legal

propositions relevant to the case.” Commonwealth v. Gad, 190 A.3d 600,

605 (Pa. Super. 2018) (citation omitted). Further, “[a] trial court is not

required to sanitize the trial to eliminate all unpleasant facts from the jury's

consideration.” Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super.

2019) (citation omitted). The trial court will be found to have abused its

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discretion where its “judgment is manifestly unreasonable or where the law is

not applied or where the record shows that the action is a result of partiality,

prejudice, bias or ill will.” Commonwealth v. Lekka, 210 A.3d 343, 354 (Pa.

Super. 2019) (citation omitted).

As the trial court accounts in its Rule 1925(a) opinion, Appellee’s “dead

body” comment in his text was precipitated by a conversation that took place

earlier on October 20, 2016 between Vance and Ronald Knight, who was the

father of one of Miller’s children. Trial Court Opinion at 13-14. This

conversation took place as follows:

KNIGHT: Well I kno why [Appellee] chose to ignore me

VANCE: Y?

***

KNIGHT: I talked to her today

VANCE: And ..

VANCE: i’m at work can we not beat around the bush? I been
real with u I exact the same bruh

KNIGHT: She act like shit is sweet

KNIGHT: She said [Appellee] retarded

KNIGHT: They was fuckin

VANCE: Duh [Ronald]

KNIGHT: Why would he think I gave a fuck

VANCE: That’s all?

VANCE: I thought it was something major [laughing emoji]

KNIGHT: She don’t think she got testify

KNIGHT: And that story she made up was [a] lie

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J-A24032-19

***

VANCE: What story?

KNIGHT: I kno that bitch got somthin

VANCE: [Appellee] do

***

VANCE: Oh yeah she just lined him up we kno that

KNIGHT: All the shits sealed till [Appellee] get convicted

Commonwealth’s Response to Appellee’s Motion In Limine, 6/21/18, Exhibit

A, at 4 (emphasis added).

Immediately after this conversation between Vance and Knight, Vance

texted Appellee and began the following exchange:

VANCE: Ur [a] dirty bastard I hope you rot dickhead

***

VANCE: U fucked that bitch n I got proof

VANCE: Ur dead to me bruh

***

APPELLEE: Listen. I’m not sure what she’s showing u

APPELLEE: Don’t be dumb .. At this point she would do and say
anything.

APPELLEE: Just call me

VANCE: Facing 5yrs cause u couldn’t keep ya dick in ya
pants smh

***

VANCE: U really are a dirtball yo. I swear I fucking hate u

VANCE: U a clown these kids tryna say Gn

VANCE: U kno since u can't say it in person cause u ducked
our life up

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J-A24032-19

VANCE: Fucked

APPELLEE: Y'all wasn’t thinking about me earlier...

APPELLEE: I'm over this shit. Don't hate me when there is
a dead body in town. That's all I'm saying.

APPELLEE: I’m done wit the games[.] My life is on the line and I
can’t afford the games and sensitive bullshit

VANCE: Actually they were u were asked about.. U don’t b
worried about us like ur life is the only one affected by ur actions!
Wrong we are all suffering from ur dumbass mistake cause u
wanted to be spiteful n fuck that bitch . . .

Id. at 1, 3-4.

The trial court granted Appellee’s motion in limine to exclude this text

message conversation, explaining that it is “challenging to decipher the

context of the conversation between [Appellant] and Ms. Vance” and that, at

most, the exchange “appears to be a ‘lover’s quarrel’ which does not have

anything to do with the issues in this case.” Trial Court Opinion at 17. The

trial court concluded that admitting the text messages “would require the jury

to make a sizeable leap as to the meaning of the messages, which is not

permitted.” Id. Further, the court stated the messages have the potential to

unfairly prejudice Appellee by inflaming the jury and diverting its attention

from the legal propositions at issue in this case. Id.10
____________________________________________

10 The trial court additionally stated in its opinion that the October 20, 2016
text message should be suppressed as fruit of the poisonous tree because the
court had also suppressed the seizure of the 7499 Phone used by Vance from
which the text messages were extracted. Trial Court Opinion at 15. In
addition, the court held that to the extent that the Commonwealth could
introduce these messages through its search warrant issued as to Appellee’s
cell phone with the number 610-389-6001, the messages between Appellee

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J-A24032-19

We hold that the trial court abused its discretion in precluding the

admission of the October 20, 2016 text messages. Initially, it is crucial to

read these messages with the understanding that one week prior, on October

13, 2016, an arrest warrant was issued for Appellee related to the firearms

and drugs case, alerting him to the fact that Miller was cooperating with

authorities. Commonwealth’s Response to Appellee’s Motion In Limine,

6/21/18, ¶4; Criminal Complaint, Affidavit of Probable Cause, 5/9/17, at 18-

19. The following day law enforcement personnel conducted a search of

Appellee’s and Vance’s residence. Criminal Complaint, Affidavit of Probable

Cause, 5/9/17, at 19. In addition, the Commonwealth has alleged that

Appellee hired Darnelle Bean to kill Miller on October 21, 2016, the day

following Appellee’s text to Vance “[d]on’t hate me when there is a dead body

in town,” and that Bean began his surveillance of Miller on that same day.

Commonwealth’s Response to Appellee’s Motion In Limine, 6/21/18, ¶9;

Criminal Complaint, Affidavit of Probable Cause, 5/9/17, at 16, 19.

Moreover, contrary to the trial court’s conclusion, there were numerous

indicia in the October 20, 2016 text messages that Miller was the woman

referenced in the conversations between Appellee and Vance and Vance and

____________________________________________

and Vance at issue here were referenced in the search warrant application for
Appellee’s phone and therefore the search of the 610-389-6001 phone cannot
be an independent source for the messages at issue here. Id. at 16. As
discussed supra, we hold here that the trial court erred in suppressing the
seizure of the 7499 Phone. Therefore, the messages extracted from that
phone were not fruit of the poisonous tree and should not be suppressed.

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J-A24032-19

Knight. First, Miller was mentioned twice by her first name in text messages

exchanged between Vance and Knight on October 20, 2016, including Knight’s

message to Vance “Danielle has no idea we talk,” to which Vance responded

“I ain’t tell her.” Commonwealth’s Response to Appellee’s Motion In Limine,

6/21/18, Exhibit A, at 2. After Knight informed Vance that “[t]hey was fuckin,”

Knight then said that “[s]he don’t think she got testify” and “that story she

made up was [a] lie” in an apparent reference to Miller’s cooperation with

authorities and her potential testimony against Appellee in the drugs and

firearms case. Id. at 4. After Vance stated that she had proof that Appellee

had sex with another woman, Appellee responded that “[a]t this point she

would do and say anything,” which seemingly relates to Miller’s cooperation

with the police. Vance then informed Appellee that he would be “[f]acing 5yrs”

– likely referring to a potential prison sentence Appellee could receive in the

firearms and drugs case – because he “couldn’t keep [his] dick in [his] pants.”

Id. at 3. Appellee then informed Vance that he was “over this shit” and not

to “hate [him] when there is a dead body in town,” and he appeared to confirm

that his legal and relationship issues were intertwined by stating that “[m]y

life is on the line and I can’t afford the games and sensitive bullshit.” Id. at

2. In sum, the trial court did not conduct a sufficiently thorough review of the

entire context of the October 20th text messages and therefore its

determination that the jury could only conclude that Miller was the subject of

the text messages through an impermissible “sizeable leap” was manifestly

unreasonable. Trial Court Opinion at 17.

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J-A24032-19

The trial court did not proceed to analyze whether the October 20, 2016

text messages were relevant to the Commonwealth’s case against Appellee;

however, it is readily apparent that the messages are relevant to the essential

elements of the offenses for which Appellee stands trial. Appellee was charged

with attempted murder of the first degree and conspiracy to commit murder

of the first degree, and each of these offenses require proof that Appellee had

the specific intent to kill Miller. See Commonwealth v. Ligon, 206 A.3d

515, 521 (Pa. Super. 2019) (offense of attempted murder of the first degree

requires a mens rea of a specific intent to kill); Commonwealth v.

McClelland, 204 A.3d 436, 444-45 (Pa. Super. 2019) (conspiracy to commit

murder of the first degree requires proof that the accused shared the specific

intent to kill the subject of the conspiracy). In order to prove the specific

intent to kill, it must be shown that the defendant acted with premeditation

and deliberation, which “exist whenever the assailant possesses the conscious

purpose to bring about a death.” Commonwealth v. Hitcho, 123 A.3d 731,

746 (Pa. 2015). The specific intent to kill may be established through

circumstantial evidence. Ligon, 206 A.3d at 519. Appellee’s text message to

Vance “[d]on’t hate me when there is a dead body in town” following a

discussion of his apparent intimate relationship with Miller and the revelation

that Miller was cooperating in his prosecution was circumstantial evidence that

would tend to establish the material fact that Appellee had formed the

conscious purpose to bring about Miller’s death. See Commonwealth v.

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J-A24032-19

Tedford, 960 A.2d 1, 42 (Pa. 2008) (“Evidence to prove motive, intent, plan,

design, ill will, or malice is always relevant in criminal cases.”).

In addition, the text messages are relevant to Appellee’s motive to kill

Miller and the res gestae or the chain or sequence of events underlying the

crimes. See Tedford, 960 A.2d at 42; Commonwealth v. Green, 76 A.3d

575, 584 (Pa. Super. 2013) (“res gestae” evidence showing “the complete

story” or “the chain or sequence of events which became part of the history

of the case and formed part of the natural development of the facts” may be

relevant and admissible in a criminal case (citation omitted)). With respect to

motive, the messages could be viewed by the jury as showing Appellee’s

desire to have Miller killed because her cooperation with authorities had

already imperiled Appellee’s liberty and now his problems were compounded

by Vance’s discovery of his apparent dalliance with Miller. The text messages

are also an essential event in the complete story of the Commonwealth’s case,

beginning with Appellee’s discovery on October 13th that he was being

charged related to his sales of firearms and drugs to Miller based on her

cooperation, the October 20th discovery by Vance of Appellee’s affair with

Miller, and culminating in Appellee’s October 21st decision to hire Bean to kill

Miller.

Finally, we cannot agree with the trial court’s conclusion that the

October 20th text messages would unfairly prejudice Appellee, which

determination appears to have been based solely on the court’s mistaken

conclusion that it was impossible for the jury to conclude that Miller was the

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J-A24032-19

subject of the text messages. Trial Court Opinion at 17. While the admission

of the text messages – particularly Appellee’s “[d]on’t hate me when there is

a dead body in town” message – would undoubtedly be prejudicial to Appellee,

the mere fact that they were harmful to Appellee would not justify their

exclusion “[b]ecause all relevant Commonwealth evidence is meant to

prejudice a defendant.” Danzey, 210 A.3d at 342 (citation omitted); see

also Gad, 190 A.3d at 605. As described above, the October 20th text

messages were highly probative of Appellee’s motive and specific intent to kill

Miller and were an essential element in the natural sequence of events of the

alleged criminal conduct. Furthermore, the admission of the messages would

not inflame the jury to make its decision on legal propositions that are

extraneous to this case. Gad, 190 A.3d at 605. Accordingly, the trial court’s

ruling excluding the admission of the October 20, 2016 text message

extracted from Vance’s 7499 Phone constituted an abuse of discretion and

must be reversed.

Motion in Limine – Prior Bad Acts Evidence

In its final issue, the Commonwealth argues that the trial court abused

its discretion by limiting the admission of prior bad act evidence under Rule of

Evidence 404(b) related to Miller’s two controlled purchase of firearms and

drugs from Appellee that occurred on April 15, 2016 and June 28, 2016. It is

undisputed that Appellee’s April and June 2016 transactions are relevant to

the present case. As the trial court stated in its opinion, these transactions

were relevant to help understand the complete story of Appellee’s alleged

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J-A24032-19

crimes and his potential motive for hiring someone to kill Miller. Trial Court

Opinion at 22. However, the court concluded that the admission of all the

potential evidence related to those prior crimes would be overkill and

tantamount to retrying him in that other case. Id.; N.T., 6/22/18, at 58. The

trial court thus authorized the Commonwealth to admit the following facts:

1. [Miller] was arrested for selling heroin.

2. Miller advised that she knew someone that she could purchase
firearms from.

3. Miller agreed to be a confidential informant, and at the request
of authorities, wear a wire, and on 2 occasions purchased firearms
from [Appellee] and on 1 occasion purchased cocaine.

4. On April 15, 2016, wearing a wire, Miller met with [Appellee]
and he sold her 2 assault rifles, each with magazines containing
ammunition.

5. On June 28, 2016, wearing a wire, Miller met with [Appellee]
and he sold her cocaine, a semi-automatic pistol and a semi-
automatic rifle.

6. On October 13, 2016 an arrest warrant was issued for
[Appellee].

7. Miller was not charged with the sale of the heroin.

Order, 6/25/18; see also N.T., 6/22/18, at 57-58. The court concluded that

the admission of demonstrative evidence pertaining to the transactions,

including the assault rifles, handgun, drugs, or photographs of this contraband

would add nothing to the jury’s analysis, had dubious probative value, and its

relevance would be outweighed by its potential for unfair prejudice. Trial

Court Opinion at 22. Similarly, the court concluded that the video and audio

recordings and the transcripts of the audio recordings were overly prejudicial,

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J-A24032-19

confusing to the jury, and only cumulative of the evidence that the court had

already authorized. Id. at 22-23.

The Commonwealth contends that the trial court improperly limited the

prior bad act evidence because once the court rules that the prior bad act

evidence is relevant, the Commonwealth “must be given the opportunity to

demonstrate the strength” of the Rule 404(b)(2) exception “through all

available evidence.” Commonwealth v. Flamer, 53 A.3d 82, 88 (Pa. Super.

2012). Thus, the Commonwealth argues that all evidence related to the April

and June 2016 firearm and drug sales should be permitted, including the

firearms that Miller purchased from Appellee (or photographs thereof) and the

audio and video recordings of the transactions. Most particularly, the

Commonwealth urges this Court to allow into evidence the audio transcript

from the second transaction, which sets forth the following conversation

between Appellee and Miller regarding a firearm Appellee was carrying:

MILLER: What is that?

APPELLEE: It’s a 40 . . .

MILLER: You’re walking around with a 40?

APPELLEE: Yea.

MILLER: Why?

APPELLEE: Cause if I hit ya, I want it to kill.

Appellee’s Motion in Limine to Preclude and/or Limit Prior Bad Act Evidence,

6/18/18, ¶8.

Rule 404(b) provides as follows:

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J-A24032-19

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is
not admissible to prove a person's character in order to show that
on a particular occasion the person acted in accordance with the
character.

(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of accident.
In a criminal case this evidence is admissible only if the probative
value of the evidence outweighs its potential for unfair prejudice.

Pa.R.E. 404(b)(1)-(2). This Court has explained that:

In accordance with Rule 404(b)(1), evidence of prior bad acts or
criminal activity unrelated to the crimes at issue is generally
inadmissible to show that a defendant acted in conformity with
those past acts or to show criminal propensity. However, it is well
settled that evidence of prior bad acts may be admissible when
offered to prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. In determining whether evidence
of other prior bad acts is admissible, the trial court is obliged to
balance the probative value of such evidence against its prejudicial
impact.

Commonwealth v. Conte, 198 A.3d 1169, 1180 (Pa. Super. 2018) (internal

citations and quotation marks omitted).

Rule 403 additionally vests the trial court with authority to determine

the admissibility of the evidence with an eye towards the “clear, concise, and

expeditious presentation, allowing for the exclusion of evidence that is

confusing, cumulative, or unfairly prejudicial.” Farese v. Robinson, ___

A.3d ___, 2019 PA Super 336, *19 (filed Nov. 8, 2019). This rule provides:

The 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.

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J-A24032-19

Pa.R.E. 403.

In Commonwealth v. Hicks, 91 A.3d 47 (Pa. 2014), our Supreme

Court reviewed the interplay between Rule 403 and Rule 404(b), specifically,

the ability of a trial court to make pre-trial determinations regarding the

admissibility of evidence under Rule 403 concerning prior bad act evidence

that is otherwise deemed admissible under Rule 404(b)(2). In Hicks, the

defendant was charged with murdering a prostitute, and the Commonwealth

gave pre-trial notice that it intended to introduce the testimony of seven

witnesses who would testify regarding incidents in the past where the

defendant hurt other prostitutes. Id. at 49-50. The trial court ruled that the

witnesses’ testimony was relevant to a “common scheme” under Rule

404(b)(2), but concluded that only three of the witnesses would be permitted

to testify while the court excluded the other four witnesses as cumulative

evidence under Rule 403. Id. at 50. Our Supreme Court reversed, holding

that the trial court erred in applying the balancing test of Rule 403 at the same

time as its pre-trial determination regarding whether the evidence was

admissible under Rule 404(b) and that the application of Rule 403 should

properly have been deferred until trial. Id. at 54-55. The Court stated that

the grounds for exclusion of evidence under Rule 403 are “generally not

susceptible to pre-trial evaluation” because “[i]nherent in the rule is the

assumption that the court has an adequate record, one that will mirror or

provide great insight into what will develop at trial.” Id. at 53.

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J-A24032-19

While the Supreme Court in Hicks found that the trial court improperly

concluded that four of the Commonwealth’s proposed witnesses were

cumulative in advance of trial, the Court noted that trial courts were not

entirely excluded from applying Rule 403 to evidence in advance of trial:

Although we hold the balancing of probative value and prejudice
is normally better left for trial, we do not intend to preclude all
such pre-trial determinations. A court may properly exclude—pre-
trial—evidence under the balancing test that, while relevant,
carries an unusually high likelihood of causing unfair prejudice and
minimal probative value regardless of the evidence ultimately
presented at trial. There may also be cases where the pre-trial
record is sufficiently developed and the evidence to be presented
is sufficiently certain to allow the trial court to intelligently and
accurately balance the interests involved. However, these
scenarios are exceptions rather than the rule and, as this case
demonstrates, are exceedingly unlikely to apply to assessments
of the cumulative nature of potential testimony[.]

Id. at 54.

In the instant case, the trial court conducted a bench trial concerning

Appellee’s charges related to the April and June 2016 firearm and drug sales

within ten days prior to its ruling on the motions in limine. Therefore, the trial

court was well-acquainted with the evidence that the Commonwealth sought

permission to introduce in the present case against Appellee – the firearms

Appellee sold to Miller and audio and video recordings of the sales. Therefore,

the present matter is one of those types of cases the Hicks Court identified

“where the pre-trial record is sufficiently developed and the evidence to be

presented is sufficiently certain to allow the trial court to intelligently and

accurately balance the interests involved.” Id. at 54. The trial court was

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therefore well within its authority in concluding that introduction of the assault

rifles and handgun that Appellee sold Miller, or photographs thereof, had

minimal probative value to the present trial because none of these firearms

were used against Miller and the introduction of the firearms would be highly

prejudicial to Appellee. Id. Similarly, the trial court correctly concluded that

Appellee’s statement to Miller that he carried a “40...[c]ause if I hit ya, I want

it to kill” had little to no relevance to the instant prosecution of Appellee and

would be highly prejudicial to Appellee because it would be more indicative of

Appellee’s violent character. While the Commonwealth now maintains that

Appellee’s statement is indicative of Appellee’s specific intent to kill Miller, this

position is inconsistent with the Commonwealth’s theory that Appellee

developed his motive and intent to kill as a result of his discovery that Miller

was cooperating with authorities when the October 13, 2016 arrest warrant

was issued and again on October 20, 2016 when Vance accused Appellee of

having sexual relations with Miller.11 Furthermore, there is no allegation in

this case that the “40” Appellee and Miller were discussing was the actual

weapon that was used against Miller.

____________________________________________

11To the extent the Commonwealth is able to articulate a plausible theory that
Appellee’s statement about the “40” related to his specific intent to kill Miller,
we note that the trial court is free to reconsider its decision to exclude this
evidence during trial. Hicks, 91 A.3d at 54 (“A pre-trial ruling on admissibility
may help define the issues and the potential evidence, but the court retains
the discretion to modify its ruling as circumstances develop or as the evidence
at trial diverges from that which was anticipated.”).

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However, in accordance with Hicks, we must conclude that the

remainder of the trial court’s rulings restricting the Commonwealth’s

presentation of its prior bad acts evidence, which relied on the trial court’s

assessment that the Commonwealth’s presentation would be “overkill,” are

premature. As the Court in Hicks explained, it is “exceedingly unlikely” that

a trial court would have a sufficient record prior to trial upon which it could

make the ex ante Rule 403 determination that relevant bad acts evidence that

the Commonwealth would seek to present at trial is cumulative. Id. at 54.

Accordingly, we vacate the trial court’s ruling confining the Commonwealth’s

presentation regarding the prior bad acts to seven identified topics relating to

the April and June 2016 transactions and the resulting criminal case. This

overly restrictive ruling violated the “fundamental precept of our criminal

jurisprudence that the Commonwealth is entitled to prove its case by relevant

evidence of its choosing.” Id. at 55. Furthermore, we vacate the trial court’s

blanket prohibition on the introduction of the audio and video recordings of

the transactions or the use of transcripts. We stress that this Court takes no

position on the merits of these rulings at the present time, and our holding

here does not diminish the trial court’s authority, indeed its responsibility, to

weigh the Commonwealth’s evidence regarding Appellee’s prior bad acts under

Rule 403 at the time the evidence is to be presented at trial.

* * *

Accordingly, we affirm the trial court’s ruling regarding the prior bad

acts evidence to the extent the court ruled that the firearms, photographs of

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the firearms, and the portion of the transcript of the audio recording of the

June 28, 2016 transaction in which Appellee references his “40.” We vacate

the remainder of the trial court’s ruling on the bad acts evidence as premature.

With respect to the October 20, 2016 text messages, we reverse the trial

court’s grant of Appellee’s motion in limine precluding the admission of these

messages. In addition, we reverse the trial court’s ruling on Appellee’s motion

to suppress the CSLI evidence gathered from his four cell phones to the extent

the trial part granted the motion with respect to the CSLI from the 0395

Phone. We reverse the trial court’s grant of Appellee’s motion to suppress the

evidence collected from the 7499 Phone.

Orders vacated in part, reversed in part, and affirmed in part. Case

remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/21/20

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