Com. v. Diegdio, J.

J-S33015-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA LEE DIEGDIO :
:
Appellant : No. 866 WDA 2022

Appeal from the Judgment of Sentence Entered March 18, 2022
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0001795-2020

BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED: December 29, 2023

Appellant, Joshua Lee Diegdio, appeals from the judgment of sentence

of an aggregate term of life imprisonment, without the possibility of parole,

imposed after a jury convicted him of first-degree murder, attempted murder,

aggravated assault, burglary, robbery, and conspiracy to commit robbery. On

appeal, Appellant challenges the sufficiency of the evidence to sustain his

convictions, the court’s denial of his pretrial motion to suppress evidence, and

the court’s admission of certain evidence. After careful review, we affirm.

The trial court set forth a detailed summary of the facts and procedural

history of Appellant’s case, which we adopt herein. See Trial Court Opinion

(TCO), 11/7/22, at 1-24. Briefly, Appellant was convicted of the above-stated

offenses based on evidence that he shot Latrell Parker and Alessandra Briggs

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-S33015-23

during a home invasion in Beaver Falls, Pennsylvania, on September 25, 2020.

While Parker unfortunately died from his wounds, Briggs survived and was

able to testify against Appellant at his trial, identifying him as one of the two

men who forcibly entered her home and shot her and Parker.

On March 2, 2022, the jury convicted Appellant of the above-stated

crimes. On March 18, 2022, he proceeded to sentencing. Although the

Commonwealth sought the death penalty in this case, the jury could not reach

a verdict on that penalty and, therefore, the court imposed an aggregate term

of life imprisonment, without the possibility of parole.

On March 28, 2022, Appellant filed a timely, post-sentence motion. On

July 26, 2022 (120 days later), Appellant filed a notice of appeal. However,

at no point between the filing of his post-sentence motion and the filing of his

appeal did it appear that an order was entered formally denying the post-

sentence motion. See Pa.R.Crim.P. 720(B)(3)(a) (stating that, when

presented with a post-sentence motion, the trial court “shall decide the post-

sentence motion … within 120 days of the filing of the motion. If the judge

fails to decide the motion within 120 days … the motion shall be deemed

denied by operation of law.”); Pa.R.Crim.P. 720(B)(3)(c) (directing that, when

the court fails to decide a post-sentence motion within 120 days, “the clerk of

courts shall forthwith enter an order on behalf of the court … that the post-

sentence motion is deemed denied”). An appeal filed after a timely, post-

sentence motion is premature if the trial court has not yet entered an order

disposing of the motion, or the clerk of courts has not entered an order

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J-S33015-23

denying the motion by operation of law, as without any such order the

judgment of sentence is not final. Commonwealth v. Claffey, 80 A.3d 780,

783 (Pa. Super. 2013) (finding that, “when post-sentence motions are filed,

the judgment of sentence does not become final until those motions are

decided”). Such an appeal, therefore, should be quashed as not from a final

order. Id. Accordingly, this Court entered a September 1, 2022 rule to show

cause order directing Appellant to show cause why the instant appeal should

not be quashed as premature.

On September 13, 2022, Appellant filed a response stating that a

praecipe had been filed with the trial court pursuant to Pa.R.A.P. 301(d)

(mandating that the clerk of the lower court shall prepare, sign, and enter

appropriate orders upon praecipe of any party). The trial court’s docket has

now been updated, showing entries for a September 13, 2022 “Praecipe to

Enter Order by Operation of Law,” and a September 15, 2022 “Order Denying

Post-Sentence Motion by Operation of Law.”1 Because there is now a final

order denying Appellant’s post-sentence motion, we find that the instant

appeal was timely filed from that final order. See Pa.R.A.P. 905(a)(5) (stating

that an initially premature notice of appeal shall be treated as filed on the date

the appealable order is entered).

____________________________________________

1 We note that the court’s September 15, 2022 order shows that it improperly

attempted to back date the denial of Appellant’s post-sentence motion to July
25, 2022.

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J-S33015-23

Appellant thereafter complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

the trial court filed a responsive Rule 1925(a) opinion on November 7, 2022.

Herein, Appellant states four issues for our review:

1. The trial court erred by not granting Appellant’s motion for
judgement [sic] of acquittal, at the conclusion of the
Commonwealth’s case, on the basis that the Commonwealth failed
to prove that … Appellant was the actual person that committed
the following charges: first[-]degree murder, criminal attempt -
murder of the first degree, aggravated assault, robbery – inflict
serious bodily injury, burglary – overnight accommodations[,] …
and conspiracy to commit robbery - inflict serious bodily injury….

2. The trial court erred by not granting Appellant’s motion for
judgement [sic] of acquittal, at the conclusion of the
Commonwealth’s case, on the basis that there was insufficient
evidence to support all of the charges[ of:] first[-]degree murder,
criminal attempt - murder of the first degree, aggravated assault,
robbery – inflict serious bodily injury, burglary – overnight
accommodations[,] … and conspiracy to commit robbery - inflict
serious bodily injury.

3. The trial court erred and/or abused its discretion when it denied
Appellant’s omnibus pre-trial motion, including the motion to
suppress the photo array of … Appellant and the motion to
suppress any evidence seized from … Appellant’s ZTE cellular
phone.

4. The trial court erred and/or abused its discretion when it
determined Appellant’s statement about being treated like El
Chapo was an admission and/or statement against interest and
permitted the testimony of Deputy Sheriff[] Doug Hanna.

Appellant’s Brief at 12-13 (unnecessary capitalization and footnote omitted).2

____________________________________________

2 Appellant indicates that his first two issues will be analyzed together and are

supported by the same facts and law. See id. at 13 n.1.

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J-S33015-23

In assessing Appellant’s claims, we have reviewed the briefs of the

parties, the certified record, and the applicable law. We have also considered

the thorough and well-reasoned opinion of the Honorable Mitchell P. Shahen

of the Court of Common Pleas of Beaver County. We conclude that Judge

Shahen’s opinion correctly and cogently disposes of Appellant’s issues and

demonstrates that no relief is due.3 Therefore, we adopt Judge Shahen’s

decision as our own, and affirm Appellant’s judgment of sentence for the

reasons set forth therein.

Judgment of sentence affirmed.

____________________________________________

3 We note that in Appellant’s third issue, he contends that the photographic

array shown to Brittany Lavette was unduly suggestive because he is Latino,
and “[t]here were no other Latino men in the line-up.” Appellant’s Brief at 56.
Judge Shahen does not address this argument in his opinion, as it was not
raised in Appellant’s omnibus pretrial motion to suppress. Therein, Appellant
focused only on the fact that he was one of the only individuals in the array
with visible tattoos on his neck. See Omnibus Pretrial Motion, 8/25/21, at 11
¶ 38 (arguing that “[u]sing a photograph of [Appellant] as the only male with
numerous tattoos is unduly suggestive and taints the identification”); id. at
11 ¶ 39 (stating that, “[a]t issue here is that while [Appellant’s] photograph
is similar in skin tone and hair style and color with the other photographs it is
the only one with highly visible tattoos[,] … which uniquely and specifically
draw attention to [Appellant]”) (emphasis omitted); id. at 12 ¶ 41 (“Fatal to
the Commonwealth is that [Appellant’s] photograph is unduly suggestive as it
portrays a characteristic unshared by other members depicted in the
photographic array. This characteristic, namely the visible chest and neck
tattoos, immediately draws attention to [Appellant] in a manner that is likely
to induce a misidentification as it causes his photograph to stand out more
than the others.”). Moreover, Appellant does not point to where in the record
of the suppression hearing that he raised the claim about his being the only
Latino man in the lineup. Thus, Appellant has waived this argument on appeal.
See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and
cannot be raised for the first time on appeal.”).

-5-
J-S33015-23

12/29/2023

-6-
 Circulated 12/14/2023 10:21 AM

IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF
PENNSYLVANIA
CP-04-CR-0 1795-2020
vs.
866 WDA2022
JOSHUA LEE DIEGDIO

Shaben, Mitchell P. NOVEMBER 7, 2022

OPINION OF LOWER COURT PURSUANT TO PA.R.A.P. RULE 1925a)

Joshua Lee Diegdio ("Appellant") appeals from the March 18, 2022,

judgment of sentence entered by the Court of Common Pleas of Beaver County

following his convictions by a jury on March 2, 2022, of Murder of the First

Degree, 1 Criminal Attempt - Murder of the First Degree,2 Aggravated Assault,3

Robbery - Inflict Serious Bodily Injury, Burglary - Overnight Accommodations;

1
18 Pa. C.S. $ 2502(a)
18 Pa. C.S. 8$ 901(a); 18 Pa. C.S. $ 2502(a)
3 18 Pa. C.S. $ 2702 (a)(l)

'18 Pa. C.S. § 3701(a)(l)(i)

Page 1 of56
Person Present, Bodily Injury Crime,' and Conspiracy - Robbery - Inflict Serious

Bodily Injury. 6

On December I 0, 2020, the Commonwealth filed its notice of intention to

seek the death penalty citing two aggravating factors in the event of a conviction of

first degree murder pursuant to the Sentencing Code, 42 Pa. C.S. § 9711.

Following the death penalty phase, the jury was unable to reach a verdict as

to the penalty. On March 18, 2022, the court sentenced the Appellant to a term of

life imprisonment on the first degree murder conviction. Sentences on the

remaining charges were ordered to run concurrently or merged with corresponding

offenses.

The Appellant filed a timely post-sentence motion on March 28, 2022, and a

supplemental post-sentence motion by permission on May 9, 2022. The relevant

facts and procedural history follow below.

FACTS AND PROCEDURAL HISTORY

The charges against the Appellant stem from an incident occurring at the

home of Latrell Parker and Alessandra Briggs, 1403 5 Ave, Beaver Falls, PA

("Premises"), in the early morning hours of September 25, 2020. This incident

involved the invasion of the home and shooting death of victim Latrell Parker

("Parker"), and the shooting of victim Alessandra Briggs ("Ms. Briggs").

5 18 Pa. C.S. $ 3502(a)(1)

618 Pa. C.S. $ 903(a)(1); 18 Pa. C.S. $ 3701(a)(1)(

Page 2 of 56
 By Criminal Information dated December 2, 2020, the Appellant was

charged as follows, one ( 1) Count of Murder of the First Degree (First Degree

Felony);7 one (1) Count of Murder of the Second Degree (First Degree Felony);8

one (1) Count Criminal Attempt-Murder of the First Degree;9 one (1) Count

Aggravated Assault;" one (1) Count RobberyInflict Serious Bodily Injury;'' one

(1) Count Burglary-Overnight Accommodations: Person Present, Bodily Injury

Crime; and one (1) Count Conspiracy-Robbery-Inflict Serious Bodily lnjury.12

The Appellant filed an Omnibus Pre-Trial Motion on August 25, 2021,

consisting of a (1) Motion to Suppress the Search Warrant for Appellant's

Facebook Account, (2) Motion to Suppress the Search Warrant for Appellant's

Cellular Telephone, and (3) Motion to Suppress the Identification of the Appellant

stemming from a Photo Array. Appellant has appealed the suppression court

rulings which denied the Motion to Suppress the Identification and the Motion to

Suppress the Search Warrant for Appellant's Cellular Telephone.

A hearing on the omnibus motion was held on November 15, 2021, at which

time the Commonwealth presented testimony from Detective Justin Schlie and

Detective Timothy Higby of the City of Beaver Falls Police Department, as well as

testimony from Detective Roger Patrick Young of the Beaver County District
7
18 Pa. C.S.A. §2502(a)
8 18 Pa. C.S.A. §2502(b)

9 18 Pa. C.S.A. $901(a)
18 Pa. C.S.A. $2702(a)(1)
18 Pa. C.S.A. $3502
"?18 Pa. C.S.A. $903

Page 3 of 56
Attorney's Office. Detective Schlie testified to the required protocol for arranging

photographic arrays, the software used, and the process he followed.

On December 30, 2021, the Court issued an Order denying the Appellant's

Omnibus Pre-Trial Motion. The relevant findings are summarized as follows:

Motion to Suppress the Photo Array and Subsequent
Identification by Brittany Lavette

This court finds that the background of each photo is similar, each
photo is a headshot, the facial features of all of the men are similar
and all of the men depicted appear to be of a similar age. The men
have similar facial characteristics, facial hair, and hairlines. There is a
mild variation in the complexion of the individual shown in
photograph five (5) and the photograph of the Appellant shows a
tattoo on his neck while the only other man with an observable tattoo
was the man in photograph two (2). The complete neckline of the men
in the photographs one (1), five (5) and seven (7) are partially
obstructed so that no neck tattoos are observable and the remaining
men in the photographs have no neck tattoos. These variations did not
make Appellant's photograph stand out more than others.

In this case, in considering the totality of the circumstances, the court
concludes that Brittany Lavette's out-of-court identification was not
based upon a photo array so infected by suggestiveness as to give rise
to a substantial likelihood of irreparable misidentification. The array
was computer generated, the backgrounds were the same and the court
finds that all of the men in the photo array exhibited similar facial
characteristics.

Motion to Suppress Items Seized through Search Warrant

In this case, the court having previously decided that it will not disturb
the finding of probable cause of the issuing authority to search the cell
phone, the court, based on the recent authority of Green,' finds that
the items requested on pages one (I) and six ( 6) of the search warrant

Referencing, Commonwealth v. Green, 265 A.3d 541, 551 (Pa. 2021).

Page 4 of 56
 for the cell phone are not in violation of the particularity requirement
of Article 1 Section 9 of the Pennsylvania Constitution."

Jury selection began on February 7, 2022, and the trial was conducted from

February 16, 2022 to March 1, 2022. On March 2, 2022, the Jury returned a

verdict finding the Appellant guilty on Count I, II, V, VI, and VII. The Jury did

not impose the death penalty.

The Appellant was sentenced on March 18, 2022. The Appellant was

sentenced on Count I to life imprisonment in a State Penal or Correctional

Institution or Facility, without the possibility of parole; ten to twenty years on

Count II, to run concurrently with the sentence imposed at Count I; ten to twenty

years on Count V, to run concurrently with the sentence imposed at Count I; seven

to twenty years on Count VI, to run concurrently with the sentence imposed on

Count I; seven to twenty years on Count VII, to run concurrently with the sentence

imposed on Count I. No sentence was imposed for Count IV, as it was deemed to

have merged with the sentence imposed on Count II.

The Appellant filed a Post-Sentence Motion for Relief following sentencing

on March 28, 2022. A Notice of Appeal was filed by the Appellant on July 26,

2022. The Appellant was ordered to file a Concise Statement of Matters

Complained of on Appeal on July 28, 2020. The Appellant timely filed a Concise

' Order in Response to Appellant's Omnibus Pre-Trial Motion, December 30, 2021, Commonwealth v. Joshua Lee
Diegdio, CP-04-CR-01795-2020

Page 5 of56
Statement of Matters Complained on Appeal and a Concise Statement of Errors

Complained on Appeal on August 9, 2022.

TRIAL

The Commonwealth called multiple witnesses during their case in chief. For

purposes of this opinion, testimony of Alessandra Briggs, Justin Laneve, Justin

Schile, Bonnie Sedlacek, Daniel Viscuso, Timothy Higby, and Michael Motton

will be summarized.

On February 16, 2022, Alessandra Briggs ("Ms. Briggs") was called by the

Commonwealth to testify. Ms. Briggs testified that she had been in a relationship

with Latrell Parker ("Parker") for almost two years and that they had been living

together at the Premises for about a month at the time of the incident.'°

Ms. Briggs testified that she knew of Parker's friends, and that one of

Parker's friends, Michael Waters ("Waters"), lived three houses down from the

Premises.16 Ms. Briggs stated that Parker socialized and hung out at Waters' house

frequently."

Ms. Briggs testified that she knew of a man nicknamed "Pun" who was an

acquaintance of Parker, but that she did not have a friendship or relationship with

him. Ms. Briggs testified that she had seen Parker briefly interact with Diegdio,

S Transcript of Record: February 16, 2022, at 177, Commonwealth v. Diegdio, (2022) (No. 1795 of 2020).
16 1d. at 180.
Id. at 183.
Page 6 of56
stating that Parker had given Diegdio an eighth of marijuana before the incident.""

Ms. Briggs identified Pun as the Appellant, Joshua Diegdio, during her courtroom

testimony."

Ms. Briggs testified that on the day of the incident, she worked until 7:00

PM and when she returned home Parker was out playing basketball. When Parker

did arrive home later, Ms. Briggs and Parker ate dinner and retired to bed around

11:00 P.M.? Ms. Briggs testified that she was woken up a couple hours later by

loud banging on her front door. Ms. Briggs asked who was there and received no

response.21 Ms. Briggs testified that she heard sounds consistent with someone

walking down the front steps of her porch, so she thought whoever was at her door

had left. A moment later, Ms. Briggs heard sounds consistent with someone

walking up the steps of her front porch and heard pounding at her front door again.

Ms. Briggs asked again who was there, and the person responded, "it's Big Pun, I

need some fucking weed. "22 Ms. Briggs told him it was one in the morning and to

go away.23 At that point Ms. Brigg's front door was kicked it, two men entered the

premises with guns. Parker rolled off the bed, attempting to conceal himself from

view.24

I" Id. at 184
19 Id.
30 1d. at 188
2' 1d. at 192
3 1d. at 193
23 Id.
24 Id.

Page 7 of56
 Ms. Briggs testified that the men were wearing hospital masks, the Appellant

was wearing a gray hoodie and basketball shorts, and the other male (Patrick

Haynes) was wearing sweatpants and a black hoodie.25 Ms. Briggs testified that

when Diegdio spoke to her he pulled down his mask. 3°

Ms. Briggs testified that the men began asking her where Parker was while

waiving their guns in her face.27 At this point, Parker stood up from the side of the

bed and asked the Appellant why he was doing this.? The Appellant asked Parker

for money, when Parker gave the Appellant cash, he demanded more money.29

Parker directed the Appellant to a bag containing single and five-dollar bills that he

kept behind a television on top of his fireplace mantel.3 The Appellant removed

the television and placed it on the floor.31 The Appellant opened the bag, asked

Parker if that was it, at which point he turned around and shot Parker.32

Ms. Briggs testified that once she heard gunshots, she closed her eyes,

backed up against the wall and lowered herself on the floor, anticipating that she

would be shot next.°? Ms. Briggs testified that Haynes asked the Appellant why he

shot Parker, before receiving a response, Haynes shot Ms. Briggs."

25 1d. at 195
26 Id.
Id. at 194
28 Id.
29 Id. at 197
30 Id.
3 14.
32 Id.
33 1d. at 197, 198
34 1d. at 198

Page 8 of56
 After being shot by Haynes, Ms. Briggs attempted to reach for her cell

phone to call 911.° Once Ms. Briggs reached her phone, the screen illuminated, at

which point the Appellant walked over to her and shot her in the chest.36 Ms.

Briggs testified that she played dead until both men fled out the back door.37 Once

Ms. Briggs felt safe, she called 911 and was airlifted to a hospital in Pittsburgh.38

Ms. Briggs testified that she was shot a total of six times during the incident; and

received gunshot wounds to her back, leg, chest, and hip.39 Ms. Briggs stated that

the bullet fragments in her body cannot be removed because they are in close

proximity to vital organs and areas that would cause additional medical issues."

While Ms. Briggs was receiving care at UPMC Presbyterian Emergency

Room, a female detective came to see her and asked her to look at a photo lineup.41

Ms. Briggs testified that she was not in the emotional state to cooperate with the

lineup at this time and that she asked the detective to leave.42

The Commonwealth's next witness was Justin Laneve ("Laneve"), a state

trooper for the Pennsylvania State Police.43 Laneve testified that he was patrolling

Beaver Falls on the night of September 25, 2020, with his partner, Trooper Dillon

3° Jd. at 199
36 Id.
37 1d. at 200
" 1d. at 200, 202
3 Id. at 219
" 1d. at 203
"Id. at 205
Id. at 206
4 Transcript of Record: February 17, 2022, at 62, 63, Commonwealth v. Diegdio, (2022) (N0. 1795 of 2020).

Page 9 of56
Burkarth.44 Laneve provided testimony in conjunction with Commonwealth

Exhibit 84a, which consisted of onboard camera footage from his patrol car.45

Laneve testified that the video depicted him and his partner pulling over a

vehicle in Beaver Falls about a block away from the Premises.46 Laneve testified

that at a point in the video, time stamped I: 16 A.M., he observed a white Jeep

Grand Cherokee go through the intersection at a rapid pace without coming to a

complete stop at the stop sign.47 Laneve testified that he found it odd that someone

would fail to come to a complete stop and travel so quickly next to a patrol car that

had its lights activated while police were conducting a traffic stop.48 Immediately

after observing the vehicle, Laneve scanned the Beaver County channel and

became aware of shots fired nearby on 5" Avenue in the city of Beaver Falls."

Laneve and his partner arrived on the scene after the traffic stop ended."

Laneve spoke with his partner and members of the Beaver Falls Police Department

about the white Jeep Grand Cherokee he observed during the traffic stop.51 Later

that night, once the scene was cleared, Laneve and his partner attempted to locate

the Jeep without success.52

44
Id. at 65
" 1d. at 68
4 Id. at 69
4 14.
4" 14.
"9 1d. at 70
so Id.
9 1d. at 79
9 1d.

Page 10 of56
 The Commonwealth called Detective Justin Schlie ("Det. Schlie") of the

Beaver Falls Police Department.53 Det. Schlie was on duty the night of September

25, 2020, and had just been relieved of his shift when he received a call from

Captain Martin, of the Beaver Falls Police Department, asking him to respond to a

shooting scene.? Captain Martin stated that one victim was deceased and another

shooting victim had been airlifted to a hospital in Pittsburgh.55

Capital Martin asked Det. Schlie if he knew someone by the street name

"Pun. "56 Det. Schlie testified that at this point in time, he knew of a man named

Josh Diegdio who went by the nickname of Pun.57 Det. Schlie correctly identified

the Appellant as Pun in the court room.°

Det. Schlie testified that once he was on the scene, he was asked to go to the

police station in order to assist the investigation, at which point he began working

on a photo lineup of Diegdio." Det. Schlie testified that he began working on the

lineup right away because a potential suspect was identified, and detectives

believed that a victim was in critical condition in Pittsburgh.

83 1d. at 82
9 Id. at 83
8 1d. at 83, 84
56 Id. at 84
97 14.

Id.
"9 Id. at 85; see also, Commonwealth Exhibit 85
60 Id.

Page 11 of56
 Det. Schlie testified that the photo array was generated through a database

called JNET.61 Det. Schlie testified that JNET is authorized by the Commonwealth

of Pennsylvania to access driver's license photos that can be used in a photo

lineup; the photos are self-generated by either the subject that is searched for or a

description of the subject.° Det. Schlie testified that the lineup was eight pages,

one photo per page, because of the protocol he is required to follow.63 Det. Schlie

testified that they generally use eight photos of different individuals. Once Det.

Schlie completed the lineup, it was emailed to Detective Bonnie Sedlacek, who

was in route to the hospital in Pittsburgh to see Ms. Briggs at this time.

Detective Schlie testified about the instructions given when investigators

conduct photo arrays with victims--detectives tell victims to take their time, to

look at each photograph, and to make sure that they view every photo before they

make their decision.66 The photo array and identification are timed, when the

victim identifies a suspect, investigators have them initial next to the photo they

selected.67 During the photographic array, the victim is presented with the

photographs while the photographs are face down and the subjects are not visible.

The victim is then told that whenever they are ready the investigator will begin to

6 J4.
1d. at 94
0 1d. at 85
6 1d.
6 1d. at 87
66 Id. at 98

67 1d. at 99

Page 12 of56
flip the photographs over one at a time. The victims are advised to look at every

page during this process.69

Det. Schlie testified that on September 26th, while he was working the day

shift, Ms. Briggs called the station wanting to speak to someone in reference to the

incident." Det. Schlie returned Ms. Briggs' phone call, at which point he was told

she had received a Facebook request from the male that had shot her boyfriend.

Det. Schlie testified that when he asked who that male was, Ms. Briggs stated the

Facebook name was Joshua Diegdio.71 Det. Schlie pulled up Diegdio's Facebook

and asked if Ms. Briggs could describe the male she was looking at. 72 She stated

that it was a large, light-skinned black male wearing a gray jumpsuit and that he

was crossing his fingers.73 Det. Schlie asked Ms. Briggs if she knew this male, and

she stated she knew him as Pun, and that he was the male that shot her.74 Det.

Schlie asked how she knew him, and she stated that she knew him from Midland

and that she had seen him hug Parker earlier in the day prior to the shooting.'

The Commonwealth called Detective Bonnie Sedlacek ("Det. Sedlacek") of

the Beaver County District Attorney's Office to testify.76 Det. Sedlacek responded

6 1d. at 108
09 1d.

70 1d. at 89
71d. at 90
72 Id.

13 Id.
7 Id. at 91
75 14.
76 1d. at 110

Page 13 of 56
to UMPC Presbyterian on the night of the incident and reached the hospital at

about 2:10am." Upon her arrival, Ms. Briggs was in the trauma bay being

treated.78

Det. Sedlacek was able to speak with Ms. Briggs once she was moved to a

room in the emergency room." Ms. Briggs described the incident to Det.

Sedlacek, and stated that she knew one of the men who shot her went by "Pun.8

Det. Sedlacek relayed that information to investigators on the initial scene.81

Det. Sedlacek testified that while she was in the emergency room with Ms.

Briggs things were chaotic and there was a flurry of activity due to Ms. Briggs

being treated for her injuries." Det. Sedlacek testified that Ms. Briggs "was a

wreck," and that she had been administered medication through an IV multiple

times during the course of their conversation." Det. Sedlacek testified that Ms.

Briggs was very upset and distracted at different points during their conversation,

and crying on and off, however she was focused at some points. Det. Sedlacek

said that Ms. Briggs was inquisitive about what was happening back at the scene,

77 Id. at 112

7 1d.
79 1d. at 113
80 Id. at 115
81 Id.
1d. at 114
1d. at 137
84 Id.
85 1d. at 138

Page 14 of 56
talking to the nurses about her injuries, and trying to find out information about

Parker.86

Det. Sedlacek attempted to administered a photo lineup to Ms. Briggs while

she was in the emergency room." Det. Sedlacek testified that she was

accompanied by a security guard who assisted in timing the photographic array,

but that no other medical personnel were present in the room when the photo array

was administered to Ms. Briggs." Det. Sedlacek testified that she gave

instructions to Ms. Briggs, including how to observe the photographs, and told her

that the individual may or may not be depicted in the photos." If Ms. Briggs was

not I 00% certain that the photograph depicted the suspect, she was advised that

she shouldn't select anyone." Det. Sedlecak began laying the photographs one at a

time in front of Ms. Briggs.91 Det. Sedlacek testified that she would take the first

photograph away, and then put down the second photo, take the second one away

and put down the third one, and continued to do so for all eight photographs."

Detective Sedlacek stated that in the event someone needs to see a photograph in

the array again, she would start from the beginning of the sequence and not just

hand over one photograph. Det. Sedlecak testified that this process took under five

86 1d. at 139
87 Id.

1d. at 131
9 1d. at 120
90
Id.
91 Id.
9? 14.

Page 15 of56
minutes, Ms. Briggs did not depict anybody and refused to participate any further

at that time.

The Commonwealth called Detective Daniel Viscuso of the Beaver County

District Attorney's Office.94 Det. Viscuso testified that he pulled surveillance from

several areas around the scene and observed a white Jeep Grand Cherokee in the

area at the time of the incident." Det. Viscuso stated that he was able to determine

that the Jeep Grand Cherokee was rented from an Enterprise Car Rental, on

Darlington Road in Chippewa, under Michael Waters name.96 The car had been

rented from mid-September to October 1".

The Commonwealth's next witness was Timothy Higby ("Det. Higby"),

Detective and Captain for the Beaver County Falls Police Department.97 At the

time of the incident, Det. Higby was a Detective and Sargent for the Beaver

County Falls Police Department.98 He had been assigned lead investigator for this

incident. °
Det. Higby stated that as part of the investigation he collected surveillance

from several areas around the premises.' Higby testified that he viewed

surveillance from Franklin Tower, Early Head Start, Sweet Pea's Gas Station, and

9 Id. at 121
94
Id. at 143
9· Id. at 153
6 Id. at 154
97 1d. at 157
98 Id.
99
Id. at 158
1o Id. at 245

Page 16 of56
a Sheetz gas station located in the area." Det. Higby testified that surveillance

showed a white Jeep Grand Cherokee ("vehicle") travelling north and entering the

1400 block of Thomas Alley." At one point, the footage shows the vehicle's

lights switch off, the car eventually pulls off to the side of the alley and remains

there. Higby testified that this was noteworthy, suspicious activity in his

investigation, especially when being reviewed in light of a homicide.'

Surveillance was also pulled from 1622 6" Avenue." Police observed that

this location had an unsecured system and a camera facing out towards the front

porch which possibly captured the roadway.'° This footage was recovered, and it

also showed a white Jeep Grand Cherokee in the area.'°

The vehicle was spotted again on Sweet Pea's secured surveillance footage,

traveling up Route 18 going North.I The vehicle was seen again on secured

surveillance footage pulled from Sheetz travelling north on Route 18, time stamped

1:19:11 A.M.I

The Commonwealth called Michael Motton ("Motton") as a witness.I

Motton lived in Beaver Falls at the Super 8 Motel and was a friend of Parker.'

Io! Jd. at 225
10 Id.
103 Id.

Io Id. at 234
10 Id.
1o Id. at 237
I0 Id. at 247
Io8 Id. at 249
Io9 Transcript of Record: February 22, 2022, at 16, Commonwealth v. Diegdio, (2022) (No. 1795 of 2020).
Io Id. at 19

Page 17 of56
Motton testified that he often drove a White Jeep Grand Cherokee during

September 2020 that was rented under Michael Waters' ("Waters") name.111

Motton testified that he was charged with conspiracy to commit robbery in

connection with this case.' Motton also had charges filed against him regarding

an unrelated incident, person not to possess a firearm, in August 2019 .113 Motton

testified that he entered a guilty plea on this charge and received a twenty-year

parole and five-year house arrest sentence.'! He was given an incentive to testify

at the Appellant's trial. In exchange for his truthful testimony, Motton would have

the time for parole dropped from twenty years to ten years.''°

Motton testified that on the night of September 24, the Appellant was

socializing with Motton and other people in Waters' front yard.116 Motton stated

that "Latrell actually came running down the street and jumped in [Diegdio] 's arm

like a baby."7

At one point in the night, Waters drove the Jeep Grand Cherokee to a

Speedway gas station with Josh Diegdio, Patrick Haynes and Michael Motton.118

Motton testified that they returned to Waters' house and, at around I :00am,

Diegdio and Haynes asked if Motton would "pick them up after they hit the

Id. at 2I
1 1d. at 22
1d. at 24
1 1d. at 25
H> pd; see also, Commonwealth Exhibit 170: Plea agreement
16 Id. at 29
1? Id. at 53
I Id. at 29

Page 18 of 56
lick."9 Motton testified that hit a lick means to rob or to take somebody's

possessions.2

Motton testified that he was advised to pick Diegdio and Haynes up in

Thompson Alley, behind Waters' house.121 Waters' house was located three

houses away from the Premises where Parker was killed and Ms. Briggs was

wounded.22

Motton then proceeded to drive down the alley, but didn't see anyone.123 At

that point, Motton testified that he returned to the front of Waters' house.124 After

a couple of minutes went by, Waters' instructed Motton to return to the alleyway

and park in the church parking lot.'° When he pulled back off in the alley, he

could see Haynes and the Appellant go into the yard of the Premises and walk up

to the porch. At this point, Motton lost sight of them.'2°

After a few minutes, Motton did not see anyone and proceeded to drive back

to his hotel room, testifying that at this point he felt uncomfortable.127 As he was

pulling down the alley, he came across Haynes and the Appellant standing on both

I9 Jd. at 32
1a0 1d. at 33
121 Id.
12 1d. at 34
123 1d. at 36
Id.
ns 14.
126 J4.
17 1d. at 38

Page 19 of 56
sides of the street.28 Motton proceeded to stop the vehicle and allowed the

Appellant and Haynes to get in. 2

Motton testified that he didn't talk to Haynes or the Appellant until he saw a

patrol car conducting a traffic stop about a block away, at this point he mentioned

to the Appellant that he didn't have a license.' Once they reached the Super 8,

the Appellant asked if Motton would go to the front desk and get the Appellant's

room key.131

Once he gave them the key, the parties separated. At one point, the

Appellant re-approached Motton and asked for a cigarette.3 Motton told him that

he had to ask Motton's girlfriend, Brittany Lavette ("Lavette"), who was in

Motton's hotel room.134 Appellant then told Motton that if Motton went back

downtown, to ask Water's brother if he was still going to front the Appellant

money to buy weed.135 Motton testified that he found this statement to be weird,

because Appellant should have had money to buy weed.'3

Once the Appellant left, Motton received a call from Waters' telling him that

he thought Latrell Parker and Alessandra Briggs had been shot.137 At that point,

128 1d. at 39
129 Id.
10 Id.
I31 Id. at 40
13 Id. at 4
133
Id.
I I4.
135 1d. at 42
136 Id.
137 1d. at 43

Page 20 of 56
Motton drove the white Jeep Grand Cherokee back to 5th Ave.138 Motton arrived

at the scene and tried to get Waters' attention.139 According to Motton, he was

unable to speak to Waters until a couple of hours later. At this point, Waters and

Motton agreed to go back to the Super 8 with a firearm to get street justice.

Motton testified that this meant "do something back to them ... anything that we

can, shoot them, rob them, anything that we can."

When Motton and Waters returned back to the Super 8, Motton's girlfriend,

Lavette, told them that the Appellant had come back to the hotel room after Motton

left, that she did not know what room he was in but she believed that the Appellant

and Haynes had left in a cab.'

The Commonwealth also called Deputy Doug Hanna ("Deputy Hanna"),

who was involved in the transport of the Appellant from Philadelphia to Beaver

County.142 Prior to Deputy Hanna's testimony, a sidebar before the Court took

place, at which point an oral motion by the Commonwealth was made for the

admittance of the Appellant's statement to Deputy Hanna during transport.143

When Deputy Hanna was transporting the Appellant, the Appellant

spontaneously said, without questioning, that he did not understand why the

deputies were treating him like El Chapo just because of a couple of bodies. The
18 Id.
19 I4.
140 1d. at 46.
4 Id. at 47
1+ Transcript of Record: February 28, 2022, at 28, Commonwealth v. Diegdio, (2022) (No. 1795 of 2020).
143 Id.

Page 21 of56
Commonwealth argued that the statement made by the Appellant during transport

was an admission by the Appellant because he had knowledge that there were two

victims involved.

The Appellant's counsel objected to the statement being used as an

admission, and also raised the issue of the statement being "prejudicial."144 The

defense argued that this was not a direct admission and allowing the statement in

would allow the jury to infer too much from a "relatively vague statement" without

context as to whether the Appellant knew or did not know of the fact that he was

being arrested for murder.145

The Court overruled the defense's objection to the admittance of the

admission. The court reasoned that, in light of the fact that the Criminal Complaint

was filed on September 28th, and that the incident giving rise to the statement

occurred a month later, the testimony of Deputy Hanna should be allowed. The

Court stated that there was no question that the Appellant made the statement, and

that it should be considered an opposing party's statement ( declaration against his

interest).146

Deputy Hanna testified that on October 27, 2020, he went to Philadelphia in

order to pick up the Appellant and transport him back to Beaver County Jail.'

I Id. at 30
+5 Id. at 35
46 Id. at 165
47 1d. at 43

Page 22 0f56
Deputy Hanna testified that he was unaware if the Appellant would have been

infonned of his charges prior to being transported.148 Deputy Hanna testified that

he didn't know the exact documents the facility received, but that he is usually sent

to pick up an inmate with a packet of paperwork containing copies of documents

which are faxed to the facility prior to the deputies going out to retrieve the

inmate.' Deputy Hanna stated he was unaware of the protocols followed by the

facility in Philadelphia, specifically he was unaware if they would have provided

paperwork to the inmate or informed him of his charges prior to being picked up.
150

Deputy Hanna testified that when he was picking up the Appellant, "he

made a statement to me that we were treating him like [sic] El Chapo just because

of a couple of bodies."!5

Once testimony concluded, the Court met with both parties prior to reading

instruction to the jury. The Court stated that at the very least this statement could

be viewed as a statement against interest.5 The Court stated that, although this

statement was not made in response to police questioning, the evidence provided

during testimony addressed an admission and jury instructions would have to

provide for what is considered a spontaneous admission and a voluntary

149
ISO
I.
148 Id. at 45

Id.
IS Id. at 43
19 1d. at 164

Page 23 0f 56
admission.'5 The Court instructed the jury that they may not consider the

statement as evidence against the Appellant unless they found beyond a reasonable

doubt that the alleged crimes had been committed.'

ISSUES

Appellant's Concise Statement of Matters Complained of on Appeal are as

follows (recited verbatim):

I. The Trial Court erred by not granting Appellant's motion for judgement of
acquittal, at the conclusion of the Commonwealth's case, on the basis that
The Commonwealth failed to prove that the Appellant was the actual
person that committed the following charges: First Degree Murder,
Criminal Attempt-Murder of the First Degree, Aggravated Assault,
Robbery-Inflict Serious Bodily Injury, Burglary-Overnight
Accommodations; Person Present Bodily Injury Crime and Conspiracy to
Commit Robbery-Inflict Serious Bodily Injury (Weight of Evidence).

II. The Trial Court erred by not granting Appellant's motion for judgement of
acquittal, at the conclusion of the Commonwealth's case, on the basis that
there was insufficient evidence to support all of the charges; First Degree
Murder, Criminal Attempt-Murder of the First Degree, Aggravated
Assault, Robbery-Inflict Serious Bodily Injury, Burglary-Overnight
Accommodations; Person Present Bodily Injury Crime and Conspiracy to
Commit Robbery-Inflict Serious Bodily Injury

III. The Trial Court erred and/or abused its discretion in failing to grant the
Appellant's motion for judgment of acquittal at the conclusion of the
Commonwealth's case in chief, as there was insufficient evidence as to all
counts, because the Commonwealth failed to establish that the Appellant
committed the crimes.

IV. The Trial Court erred and/or abused its discretion when it denied the
Appellant's omnibus pre-trial motion, including the motion to suppress the

183 1d. at 153
15 1d. at 43

Page 24 0f 56
 photo array of the Appellant and the motion to suppress any evidence
seized from the Appellant's ZTE cellular phone.

V. The Trial Court erred and/or abused its discretion when it determined the
Appellant's statement about being treated like El Chapo was an admission
and permitted the testimony of Deputy Sheriff, Doug Hanna.

ANALYSIS

THE COMMONWEALTH ESTABLISHED BEYOND A REASONABLE
DOUBT THAT APPELLANT COMMITTED THE CRIMES CHARGED
AGAINST HIM
WEIGHT OF THE EVIDENCE

Diegdio's first claim is that the verdicts are against the weight of the

evidence. He contends that another individual, Brandon Cannon, put a "hit" out on

the victim because that individual believed that the victim fired shots into that

person's residence. This, Diegdio continues, established a motive for Mr. Cannon to

murder the victim especially when the evidence showed that earlier on the day of

the killing, Diegdio "embraced the victim." Even though the surviving victim

identified Diegdio in court at trial and, even though that same surviving victim

knew Diegdio and identified him at the scene and named him in the 911 call made

minutes after the assault, Diegdio maintains that only the corrupt and polluted

source witness, Michael Motten "put [Diegdio] at the scene."

"A challenge to the weight of the evidence is distinct from a challenge to the

sufficiency of the evidence in that the former concedes that the Commonwealth has

produced sufficient evidence of each element of the crime, but questions which

Page 25 of 56
evidence is to be believed." Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa.

Super. 2006); see also Commonwealth v. Edwards, 229 A.3d 298, 306, appeal

granted in part, 237 A.3d 978 (Pa. 2020), and affd, 256 A.3d 1130 (Pa. 2021)

(same). "The weight of the evidence is exclusively for the finder of fact, who is

free to believe all, none[,] or some of the evidence and to determine the credibility

of the witnesses." Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super.

2015) (quotations omitted). "Resolving contradictory testimony and questions of

credibility are matters for the finder of fact." Commonwealth v. Delmonico, 251

A.3d 829, 837 (Pa. Super. 2021). A court may not substitute its own judgment for

that of the trier of fact. See Id. (citing Talbert, 129 A.3d at 545).

"In order for an Appellant to prevail on a challenge to the weight of the

evidence, the evidence must be so tenuous, vague and uncertain that the verdict

shocks the conscience of the court." Talbert, 129 A.3d at 545 (internal quotation

marks and citations omitted). When ruling on a weight claim, the trial court must

determine whether "certain facts are so clearly of greater weight that to ignore

them, or to give them equal weight with all the facts, is to deny justice."

Commonwealth v. Holt, 273 A.3d 514, 532 (Pa. 2022), cert. denied sub

nom. Holt v. Pennsylvania, 22-5463, 2022 WL 16542034 (U.S. Oct. 31, 2022)

( citation omitted).

Page 26 of56
 InCommonwealth v. Smyser, 195 A.3d 912 (Pa. Super. 2018), the

Superior Court pointed out that identity is also an element of each crime that must

be proven beyond a reasonable doubt:

"In addition to proving the statutory elements of the crimes charged beyond a
reasonable doubt, the Commonwealth must also establish the identity of the
Appellant as the perpetrator of the crimes." Commonwealth v. Brooks, 7
A.3d 852, 857 (Pa. Super. 2010), appeal denied, 610 Pa. 614, 21 A.3d 1189
(2011 ). "Evidence of identification need not be positive and certain
to sustain a conviction." Commonwealth v. Orr, 38 A.3d 868, 874 (Pa.
Super. 2011 ( en bane) ( citation omitted), appeal denied, 617 Pa. 63 7, 54 A.3d
348 (2012). As our Supreme Court has stated "any indefiniteness and
uncertainty in the identification testimony goes to its weight. Direct evidence
of identity is, of course, not necessary and an Appellant may be convicted
solely on circumstantial evidence." Commonwealth v. Hickman, 453 Pa.
427,430, 309 A.2d 564, 566 (1973) (citations omitted).

Id. at 915.

Further, to the extent that Diegdio challenges whether he was proven to be

the perpetrator of the crimes due to questions surrounding the reliability of the

witness' identification at trial, that claim goes to the weight of the evidence, not the

sufficiency. "[A ]ny uncertainty in an eyewitness's identification of an Appellant is a

question of the weight of the evidence, not its sufficiency." Commonwealth v.

Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006) (deeming identification evidence

sufficient, even where witnesses had previously identified the appellant in a photo

array and at a preliminary hearing, but then expressed uncertainty in their

identification at trial); see also Commonwealth v. Kinney, 157 A.3d 968, 971-72

(Pa. Super. 2017) ("Appellant argues that the victims provided 'unconvincing' and

Page 27 of56
 Circulated 12/14/2023 10:21 AM

'vague' identifications and 'inconsistencies regarding the Commonwealth's physical

evidence.' Such claims are directed entirely to the credibility of the victim's

testimony, and, as such, challenge the weight, not the sufficiency, of the evidence.")

( citations omitted).

In this, case, the calamitous events of that evening began when Diegdio

announced his name to his intended victims as he pounded on the portal to the

victims' abode. The observations of the surviving victim confirmed that the intruder

was the person who announced his presence outside the door and positive trial

identification testimony of Diegdio was then provided by Ms. Briggs. This

testimony wherein the surviving victim positively identified Diegdio as the shooter,

during Diegdio' s trial, alone, provides a sufficient basis to establish his identity as

the perpetrator of the crimes for which he was convicted. See Commonwealth v.

Duncan, 373 A.2d 1051, 1053-54 (Pa. 1977) (testimony of a single eyewitness

sufficient to support conviction for third-degree murder); Commonwealth v.

Johnson, 180 A.3d 474, 478 (Pa.Super. 2018) ("A victim's in-court testimony,

identifying the Appellant as the perpetrator of a crime, is by itself sufficient to

establish the identity element of that crime.").

Video surveillance evidence placed Diegdio at the scene when the attack

occurred and Michael Motton then whisked Diegdio and his companion from the

scene as was his task in the plot of Diegdio and another to "hit a lick" at the home

Page 28 of 56
where one person was killed and another was critically wounded. This court, under

these facts, cannot find that the evidence of guilt was so tenuous, vague and

uncertain that the verdict shocks the conscience of the court. Therefore, the post-

sentence weight of the evidence claim was properly denied.

SUFFICIENCY OF THE EVIDENCE

Diegdio next asserts that the Commonwealth did not sufficiently establish

that he was the shooter on the day in question. In essence, he challenges the

sufficiency of the evidence showing that he was the perpetrator of crimes for which

he was convicted.

The standard and scope of review of challenges to the sufficiency of the

evidence is well-settled: [W]e evaluate the record in the light most favorable to the

Commonwealth as verdict winner, giving it the benefit of all reasonable inferences

to be drawn from the evidence. Evidence will be deemed sufficient to support the

verdict when it establishes each material element of the crime charged and the

commission thereof by the accused, beyond a reasonable doubt. Any doubt about

the Appellant's guilt is to be resolved by the fact-finder unless the evidence is so

weak and inconclusive that, as matter of law, no probability of fact can be drawn

from the combined circumstances. Additionally, the Commonwealth may sustain its

burden solely by means of circumstantial evidence. Commonwealth v. Lake, ---

Page 29 0f 56
A.3d ---, 2022 PA Super 142, at *2 (Pa. Super. filed Aug. 15, 2022) (citations and

quotations omitted).

In applying the above test, the entire record must be evaluated[,] and all

evidence actually received considered. [T]he trier of fact while passing upon the

credibility of witnesses and the weight of the evidence produced, is free to believe

all, part or none of the evidence. Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa.

Super. 2011). Finally, the facts and circumstances established by the

Commonwealth need not preclude every possibility of innocence. Id. at 872.

Although challenges to identity generally speak to the weight of

the evidence, a narrow class of claims give rise to valid sufficiency challenge.

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en bane). To sustain

a conviction, evidence of identification need not be positive and certain, and any

indefiniteness or uncertainty in the identification testimony goes to its

weight. Commonwealth v. Minnis, 458 A.2d 231, 234 (Pa. Super. 1983).

"[A]!though identification based solely on common items of clothing and general

physical characteristics is insufficient to support a conviction, such evidence may

be considered to establish identity along with other circumstances and the proffered

identification testimony." Id. at 233 (citations omitted). In the presence of

additional evidentiary circumstances, "any indefiniteness and uncertainty in the

Page 30 of 56
identification testimony goes to its weight." Commonwealth v. Orr, 38 A.3d 868,

874 (Pa. Super. 2011) (citation omitted).

In Minnis, supra., the Court found that evidence was sufficient to establish

the identity of the perpetrator of a robbery where a witness identified the Appellant

by his jacket, the Commonwealth established that the Appellant was part of a group

standing threateningly close to the victim, and the victim was familiar with

Appellant as a member of that group. Id. 459 A.2d at 234.

Diegdio attacks the sufficiency of the evidence underpinning his convictions

on identical grounds as those that were alleged in his weight of evidence claim. In

particular, Diegdio alleges that the Commonwealth presented insufficient evidence

to identify him, beyond a reasonable doubt, as the intruder who entered home of the

home Latrell Parker and Alessandra Briggs.

In Commonwealth v. Johnson, 2018 PA Super 40, 180 A.3d 474,478 (Pa.

Super. Ct. 2018), the Appellant claimed that insufficient evidence existed to

support "his identity as the perpetrator of the robbery committed against the

victim." His argument was that "the victim's testimony could not establish, by

itself, his identity as the perpetrator of the robbery." Id. The court held that, under

those circumstances where a victim provided in-court testimony identifying the

Appellant as the perpetrator, the argument of the Appellant in that case had "no

support in existing case law."

Page 31 of56
 The Johnson court found that "[A] victim's in-court testimony, identifying

the Appellant as the perpetrator of a crime, is by itself sufficient to establish the

identity element of that crime. ( citation omitted). The court dismissed that

attempts of the Appellant to "enhance his argument by asserting that the

Commonwealth failed to present any corroborating evidence to support the victim's

in-court identification testimony" as the court held that the lack of corroborating

evidence "does not establish that the identity evidence was insufficient." Id. Even

the "assertion that the victim's testimony was contradicted by his own" testimony

was found to be "irrelevant" to a sufficiency analysis. Id. "Variances in

testimony ... go to the credibility of the witnesses and not the sufficiency of the

evidence." Id. (citation omitted). The sufficiency assertion in that case was thus

found to be without merit. Id.

The sufficiency claims as developed by Diegdio are asserted with the

backdrop consisting of evidence that Alessandra Briggs, the surviving victim,

identified Diegdio as the assailant at trial. Even Diegdio as he first attempted to

gain access to the Beaver Falls apartment told Ms. Briggs that it was "Big Pun" at

the door that early morning and that he was seeking to enter the Parker and Briggs'

apartment. "Big Pun" was the nom de querre for which Diegdio was known by in

the community. Minutes after Diegdio shot Ms. Briggs on his way out of the

Page32 of56
Premises, Ms. Briggs called 911 and identified Diegdio by his street moniker and a

physical description.

Michael Motton, with testimony corroborated by sequential videos, described

the planning of the robbery of the Parker-Briggs home and he plotted out the course

of travel with Diegdio, from the time that Diegdio got into the car near the scene

immediately after the shooting, until his arrival at the motel. Once Diegdio was at

the motel, Brittaney LaVette recalled how Michael Motton and Diegdio arrived

together into her room and then she described Diegdio's actions in removing a gun

from his waist and putting it on a piece of furniture in the motel room. Under these

circumstances, and in viewing the record in the light most favorable to the

Commonwealth as verdict winner, giving it the benefit of all reasonable inferences

to be drawn from the evidence, the sufficiency of evidence claim is without merit.

The issue set forth in the number three of the Concise Statement filed by

Diegdio raises the same sufficiency of evidence claims addressed in the prior

section of this Opinion and are deemed to be without merit for the same reason.

THE TRIAL COURT DID NOT ERR OR ABUSE ITS DISCRETION
WHEN DENYING THE APPELLANT'S OMNIBUS PRE-TRIAL MOTION

On August 25, 2021, the Appellant filed an Omnibus Pre-Trial Motion,

consisting of a Motion to Suppress the Search Warrant for Appellant's Facebook

Account, Motion to Suppress the Search Warrant for Appellant's Cellular
Page 33 of56
Telephone, a Motion to Suppress the Identification of Appellant stemming from

the Photo Array, and Motion for Discovery. A hearing upon these matters was held

on November 15, 2021. At the time of the hearing, the Commonwealth presented

the testimony of Detective Justin Schlie, City of Beaver Falls Police Department,

Detective Timothy Higby, City of Beaver Falls Police Department, and Detective

Roger Patrick Young, Beaver County District Attorney's Office. The

Commonwealth also entered the photo lineups, a video of the interview with the

Brittany Lavette, and the search warrants into evidence. The Appellant has

asserted that the suppression court erred and/or abused its discretion when it denied

the motion to suppress the photo array and the cell phone search warrant.

Identification and Photo Lineup

Detective Schlie of the Beaver Falls Police Department responded to the

police department on September 25, 2020 to assist with a homicide investigation.

Captain Higby asked him to finish preparing a photographic array he had started so

that the Captain could conduct an interview. Detective Schlie advised that he was

then assisted by Detective Robert Heberle with compiling the photo array.

Detective Schlie testified that the general process starts by entering the

suspect's information and pulling up a reference photo. Then, the system provides

a "search similar" option and auto populates photographs for use by the officers

based on the physical characteristics of the suspect. When asked if the program

Page34 of56
permits the user to further narrow the search by entering in search criteria based on

the suspect's physical characteristics, the Detective indicated that it does have this

option and that he believed he did enter such characteristics.

The array was sent to Detective Bonnie Sedlacek, who was at a hospital in

Pittsburgh with the surviving victim in the case. However, Detective Sedlacek

brought to Detective Schlie's attention that the background on the Appellant's

photo was a different color than the other photos. Therefore, Detective Schlie

obtained another photo of the Appellant with a background color that matched the

other photos in the array.

This photo array was shown to Commonwealth witness, Brittany Lavette, on

October 1, 2020 during an interview with Detective Higby and Detective Michael

Kryder. This interview was recorded and introduced at the Suppression Hearing.

Ms. Lavette indicated that an individual that she was unfamiliar with came to her

hotel room the night of the homicide accompanied by a person she knew. She was

provided the photo array and asked to identify if any of the people in the array

were the individual. She ultimately picked out the photograph of the Appellant.

Appellant avers that the photo array was unduly suggestive and unreliable

and therefore should be suppressed.

Search Warrant - Cellular Phone

Page 35 of 56
 The Appellant was arrested in the City of Philadelphia and, at that time, the

Appellant was in the possession of a ZTE cellular telephone. A search warrant was

obtained, with the assistance of the authorities in Philadelphia, to seize the cellular

telephone from the Appellant's property at the Curran Formhold Corrections

Facility in Philadelphia. Then, Detective Young applied for a search warrant for a

forensic extraction of the data contained in the Appellant's phone.

The Application for the Search warrant was signed by the Honorable Kim

Tesla of the Court of Common Pleas of Beaver County.'S° The Affidavit of

Probable Cause spanned nearly three (3) pages and began with a description of

Detective Young's extensive experience as a detective.156 The Affidavit of

Probable Cause then goes through a timeline of events from the time of the

homicide up until the apprehension of the Appellant in Philadelphia. Then, the

affidavit of probable cause concludes with Detective Young's stated belief that

information may be contained on the cell phone by reason of his training and

experience that criminals commonly utilize cell phones to coordinate and

communicate before, during, and after the commission of criminal activity.

The Application for Search Warrant requests all the information contained in

the cellular telephone for the time period of September 18, 2020 through

September 29, 2020.

15· Commonwealth Exhibit 5, Application for Search Warrant, p. I.
15 1d. at p.2 71.
Page 36 of56
 The Appellant asserted that the search warrant for the cellular telephone was

overbroad and had no nexus to the criminal charges at issue.

DISCUSSION

MOTION TO_SUPPRESS THE PHOTO_ARRAY_AND SUBSEQUENT IDENTIFICATION_BY
BRITTANY LAVETTE

Whether an out of court identification is to be suppressed as
unreliable, and therefore violative of due process, is determined from
the totality of the circumstances. Suggestiveness in the identification
process is a factor to be considered in determining the admissibility of
such evidence, but suggestiveness alone does not warrant exclusion.
Identification evidence will not be suppressed unless the facts
demonstrate that the identification procedure was so
impermissibly suggestive as to give rise to a very substantial
likelihood of irreparable misidentification. Photographs used in line-
ups are not unduly suggestive if the suspect's picture does not stand
out more than the others, and the people depicted all exhibit similar
facial characteristics.

Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa.Super.2011) (quotation marks

and citations omitted). Due process requires police to assemble

an array of photographs of individuals who resemble the suspect, not the

description provided by the victim or eyewitness. Commonwealth of

Pennsylvania v. Tyrell Bishop, 2021 PA Super 222, f.n. 4 (Pa. Super. Ct. Nov.

15, 2021). Finally, the assertion of an incidental variation in appearance does not

prove undue suggestiveness. Commonwealth v. Kearney, 92 A.3d 51, 66 (Pa.

Super. Ct. 2014).

Page 37 0f 56
 After hearing and review of the lineup photos, the trial court found that the

background of each photo was similar, that each photo was of a headshot of the

depicted individuals, that the facial features of all of the men were similar and that

all of the men depicted in the photographs appeared to be of a similar age. The

men were noted to have similar facial characteristics, facial hair, and hairlines. A

mild variation in the complexion of the individual shown in photograph five (5)

was noted and the suppression court found that the photograph of the Appellant

showed a tattoo on his neck while the only other man in the lineup with an

observable tattoo was the man in photograph two (2). The complete neckline of

the men in photographs one (1), five (5) and seven (7) were found to be partially

obstructed so that no neck tattoos were observable on those subjects and the

remaining men in the photographs were found to have no neck tattoos. The

suppression court held that these variations did not make Appellant's photograph

stand out more than the others.

In Commonwealth v. Fisher, 769 A.2d 1116 (Pa. 2001), the appellant

argued that the photo array was unduly suggestive because "both witnesses

described the suspect as a light-skinned African-American male with freckles and

a goatee, while only six of the eight pictures in the line-up showed men with

goatees, and only one, the picture of the appellant, showed a man with

freckles. Id. at 1126. Despite the fact that all of the men in the photographs did not

Page 38 of56
have goatees or freckles, the Supreme Court held that the photographs were

substantially similar ..." Id. at 1127. In Fisher, the Court noted the pictures were

selected by a computerized system based upon similarity to the appellant and

found the trial court did not abuse its discretion in reviewing and finding nothing

unduly suggestive in the array. Id.

In Commonwealth v. Kearney, 92 A.3d 51, 66 (Pa.Super. 2014), the Court

found that the claim that Appellant was the only person of light complexion

included in the photo array was not supported by the evidence and the claim that

the Appellant was the only person smiling in the array was insufficient proof of

unreliability and suggestiveness. Commonwealth v. Crork, 966 A.2d 585

(Pa.Super. 2009) is a case where the Appellant claimed that the photo array was

unduly suggestive where the array contained men of similar appearance but only

one other man with light colored eyes was rejected as the Court found that the

Appellant's photo did not stand out from the others.

In this case, in considering the totality of the circumstances, the court

concluded that witness Brittany Lavette's out-of-court identification was not based

upon a photo array so infected by suggestiveness as to give rise to a substantial

likelihood of irreparable misidentification. The suppression court noted that the

array was computer generated and that the backgrounds were the same. Finally,

the suppression court found that all of the men in the photo array exhibited similar

Page 39 of 56
facial characteristics. Accordingly, based on those findings made by the

suppression court, the ruling which denied the request to suppress the lineup

should not be disturbed as the factual findings of the suppression court are

supported by the record and the legal conclusions drawn from those facts are

correct.

MOTION TO SUPPRESS SEARCH WARRANT FOR CELL PHONE

In Section "C of the Omnibus Pre-Trial Motion, the Appellant was seeking

to suppress of the forensic download of his cell phone. Appellant contended that

the search warrant was lacking a sufficient nexus to the alleged crimes, lacking in

particularity and that the search warrant was overbroad.

The Constitutional claims surrounding the suppression issues raised by the

Appellant are derived from the Fourth Amendment to the United States

Constitution and Article I, Section 8 of the Pennsylvania Constitution. Those

Constitutional provisions provide protections "from unreasonable searches and

seizures by police in areas where individuals have a reasonable expectation of

privacy." Commonwealth v. Barr, 266 A.3d 25, 39 (Pa. 2021). "If a person has a

reasonable expectation of privacy in a place, then these constitutional provisions

generally require police to obtain a warrant to search the place; a search warrant

must be supported by probable cause and issued by a neutral, detached

magistrate." Id.

Page 40 of56
 In Commonwealth v. Johnson, 240 A.3d 575, 585 (Pa. 2020), the Article I,

Section 8 of the Pennsylvania Constitution protections that "no warrant to search

any place or to seize any person or things shall issue without describing them as

nearly as may be, nor without probable cause, supported by oath or affirmation

subscribed to by the affiant" were explained as follows:

Article I, Section 8 of the Pennsylvania Constitution ensures that
citizens of this Commonwealth are protected from unreasonable
searches and seizures by requiring that warrants: (I) describe the place
to be searched and the items to be seized with specificity and (2) be
supported by probable cause to believe that the items sought will
provide evidence of a crime. See, e.g., Commonwealth v. Waltson,
555 Pa. 223, 724 A.2d 289, 292 (1998). Regarding the former
requirement, we have interpreted the phrase "as nearly as may be" in
Article I, Section 8 "as requiring more specificity in the description of
items to be seized than the federal particularity requirement." Id. at
291, citing Commonwealth v. Grossman, 521 Pa. 290, 555 A.2d
896, 899 (1989) ("The clear meaning of the language is that a warrant
must describe the items as specifically as is reasonably possible.").
This more stringent requirement makes general searches impossible
and '"prevents the seizure of one thing under a warrant describing
another."' Grossman, 555 A.2d at 899, quoting Marron v. United
States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927); see
also Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510, 514
(1971) ("It cannot be disputed that general or exploratory searches
through which officers merely hope to discover evidence of [ a ]ny kind
of [a]ny wrongdoing are not constitutionally permissible.").

Commonwealth v. Johnson, 240 A.3d 575, 584 (Pa. 2020) (original citations

included).

Page 41 of56
 The required analysis for alleged overbreadth and lack of particularity

(ambiguity) attacks on a search warrant were described as follows in a recent

Pennsylvania Supreme Court case:

[B]oth doctrines diagnose symptoms of the same disease: a warrant
whose description does not describe as nearly as may be those items
for which there is probable cause. For that reason, when assessing
the validity of the description contained in a warrant, the natural
starting point for a court is to determine for what items probable
cause existed. The sufficiency of the description [in the warrant]
must then be measured against those items for which there was
probable cause. Any unreasonable discrepancy between the items for
which there was probable cause [to search] and the description in the
warrant requires suppression. This is because an unreasonable
discrepancy reveals that the description was not as specific as
reasonably possible, meaning the warrant is overbroad, ambiguous, or
perhaps both.

Commonwealth v. Green, 265 A.3d 541, 551 (Pa. 2021) ( emphasis in original)

(internal quotations and citation omitted).

Pursuant to the Pennsylvania dictates set forth in Johnson and Green, this

Court must first determine for what items probable cause exists before the question

of overbreadth can be assessed. Moreover, the Supreme Court has made clear a

requirement that the parties include a probable cause analysis in any brief filed

after December 22, 2021 raising an overbreadth issue. Specifically, that directive

was stated as follows:

It is worth emphasizing at this point, that in Johnson, a point of
contention was the fact that no party affirmatively argued or briefed
probable cause. Notwithstanding this Court's explicit pronouncement
that probable cause "is one of [the] main tenets" of an overbreadth
Page42 of56
 analysis and that the two concepts could not be "meaningfully
untangle[d]," Johnson, 240 A.3d 575, 586, Appellant forgoes a
complete probable cause analysis in his brief....... [G]oing forward,
litigants should include analysis of any alleged insufficient
showing of probable cause as it relates to their overbreadth
challenge.

Commonwealth v. Green, 265 A.3d 541, 551 (f.n. 5) (Pa. 2021) (emphasis

added). The accepted definition of probable cause and the deferential standard by

which a reviewing court must analyze the issuing authority's initial determination

of probable cause were summarized in Johnson.

Probable cause, as we have said many times over the years, is
determined based on the totality of the circumstances. Thus, the task
of the issuing [authority] is simply to make a practical, common-sense
decision whether, given all the circumstances set forth in the affidavit
before him, including the veracity and basis of knowledge of persons
supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.

A reviewing court's duty, in turn, is merely to ensure the issuing
authority had a substantial basis for concluding that probable cause
existed. In so doing, the reviewing court must accord deference to the
issuing authority's probable cause determination, and must view the
information offered to establish probable cause in a common-sense,
non-technical manner.

Commonwealth v. Johnson, 240 A.3d at 585 (internal quotations and citation

omitted). Also, "[P]robable cause is based on a probability, not a prima facie case

of criminal activity." Commonwealth v. Green, 265 A.3d 541,551 (Pa. 2021).

In Johnson, police officers responded to a shots fired call at an apartment.

They entered the home and secured the five individuals, including Johnson, who
Page 43 of 56
were in the apartment. Heroin and two guns were found in plain view. In a search

incident to the arrest of the Appellant, two cell phones were seized. More than

"four months after the initial search and discovery of this sizable stash of drugs and

firearms in the apartment, the officers sought and obtained a search warrant for

appellant's two cell phones. Commonwealth v. Johnson, 240 A.3d at 580.

In Johnson, the Court reversed the denial of suppression, concluding that

the law requires "some specific nexus between the items to be [ searched and]

seized and the suspected crime committed" and a "review of the affidavit of

probable cause reveals no such link." Id. at 587-88 (quotation and citation

omitted).

In part, the affidavit of probable cause in Johnson provided that:

From previous drug investigations your affiants have been involved
with, your Affiants have become aware that persons involved in the
trafficking of controlled substances regularly use cellular telephones
to accomplish their trafficking activities. These persons additionally
maintain within their cellular telephones, information that includes the
telephone numbers of persons to whom they distribute controlled
substances to [sic], the telephone numbers of persons from whom they
obtain controlled substances to distribute, abbreviations or acronyms
for the persons to whom they distribute controlled substances to [sic],
the persons from whom they obtain controlled substances to
distribute, and pictures of controlled substances, firearms, and
quantities of monies.

Under the facts of that case, the Supreme Court ascribed no value to the

affiant's specialized knowledge that drug traffickers often use cell phones to

conduct their business because the affidavit in that case was found to be "entirely
Page 44 of 56
bereft of any facts tying the affiants' expert opinion to appellant specifically." Id.

at 588. The Supreme Court acknowledged that an affiant's specialized knowledge

and expertise may be relevant to establishing probable cause in some

circumstances. Id. However, the Court indicated that in addition to the affiant's

specialized knowledge and expertise, the affidavit of probable cause must contain

"some link sufficient to connect the two." Id. The Court stated that "where law

enforcement seeks to search a person's cell phone based on the person's mere

proximity to illegal contraband, some link sufficient to connect the two must be

provided in the affidavit of probable cause." Id. In that case where there was no

evidence to establish anything more than that the Appellant was "merely present"

at the residence when the cell phones were confiscated, the Supreme Court stated:

Simply put, the affidavit of probable cause in this case provides little
more than the bare fact that appellant was present in a place where
illegal contraband happened to be found. That fact, in and of itself,
cannot supply probable cause for a search of appellant's cell phone.
Id.

Problematic for the Johnson court was the fact that the affidavit lacked

"evidence demonstrating" more extensive information regarding some evidence of

a nexus to the crime under investigation and the item to be searched. Id. at 588. In

the instant case, if the affidavit is reviewed with the deference that this Court must

give to the issuing authority, the decision of the original issuing authority which

found the necessary quantum of "evidence demonstrating" a sufficient nexus of the

Page 45 of 56
facts in the affidavit and the opinions based on the experience of Detective Young

with the items to be searched will not be disturbed.

Facts that the issuing authority could glean from the affidavit of probable

cause distinguish this case from the situation that existed in Johnson, where the

information in the affidavit of probable cause did nothing more than establish what

the Supreme Court called a "bare fact." Detective Young's affidavit points out that

the Appellant was identified as the shooter in a homicide, that the homicide and

robbery in the house were committed by two people, including the Appellant, and,

that a third likely participant included the getaway driver of the Jeep in which the

assailants fled after the shooting. The affidavit also references a potential murder

for hire scheme, where the person soliciting the murder utilized his phone and/or

Snapchat for the potential solicitation of the murder that the Appellant is alleged to

have committed. The affidavit pointed out locations where the getaway vehicle

was seen and at what approximate times that vehicle would have been located in

the exact areas identified on the video where the vehicle was observed. The

affidavit also references a Facebook account of the Appellant, which presumably

could be commonly utilized and accessed from a cell phone. The affiant also stated

that based on Detective Youngs' "training and experience it was known that

criminals commonly use cell phones to coordinate and communicate before, during

Page46 of56
and after the commission of criminal activity." Search Warrant Affidavit of

Probable Cause, p. 4.

As stated by the Supreme Court, "simply put," these facts, including the

professional opinion and the experience of the affiant, Detective Young, that the

offenders in this complicated potential murder for hire scheme were likely

coordinating efforts via cell phone placed the issuing authority in a position to

make a practical, common-sense decision that there was a fair probability that

contraband or evidence of a crime will be found on the Appellant's cell phone.

The suppression court, as a reviewing court, was required to accord deference to

the issuing authority's probable cause determination and the suppression court

viewed the information offered to establish probable cause in a common-sense,

non-technical manner. It was held that such an analysis led to the conclusion that

the search warrant for the cell phone was supported by probable cause.

The training and experience of an affiant can be a relevant factor for

probable cause under the totality of the circumstances. Commonwealth v.

Nicholson, 262 A.3d 1276 (Pa. Super. 2021). However, "there must be something

in the affidavit that links the place to be searched directly to the criminal activity."

Id. In Nicholson, the affidavit of probable cause contained an assertion of the

affiant that drugs would be found in the home of the Appellant based on the

Page 47 of 56
affiant' s "professional experience" that drug dealers typically store drugs, weapons

and other contraband in their homes." Id. at 1281.

The Superior Court affirmed the trial court's suppression of evidence by

holding that merely referring to "professional experience" as to the places that

drugs could be stored could be used to justify a search of any place where drugs

could possibly be kept." Id. The lack of any facts to establish a nexus to the home

of the Appellant was cited as a factor that led to the conclusion that the police

officer's professional experience was not probative of the probable cause

determination in Nicholson. Id. The affiant's general statement of the plethora of

places that drugs could be stored was the only link in that case to support the

request to search the home of the Appellant. There was no factual nexus that could

connect the home to the criminal activity in that case. The instant case differs

because of the facts cited above that could have been considered by the issuing

authority to support a probable cause determination. Once again, given the

deferential standard of the suppression court as a reviewing court, the decision of

Nicholson does not control the outcome of the suppression motion filed by the

Appellant.

The Pennsylvania Supreme Court approved a search warrant that authorized

law enforcement to seize all digital devices connected to an IP address that it

indicated would "later [be] searched for evidence relating to the possession and/or

Page 48 of 56
distribution of child pornography[.]" The scope of the search in that case allowed

the investigators to search "any and all devices" found in the Appellant's home,

including computers and all cell phones, and, significantly, all of the content of

those items without including a restriction to "include a specific date, type of file,

or program in order to satisfy the requirement to describe the items as nearly as

may be." Commonwealth v. Green, 265 A.3d 541, 555 (Pa. 2021). In Green, the

Supreme Court approved a broad authorization to seize all devices and search

through all data on the digital devices for evidence of possession and distribution

of child pornography by concluding that such a search in that case complied with

the Article I, Section 8 requirement that the warrant must describe the place to be

searched and the things to be seized as nearly as may be. Id. at 555.

Because of the affiant's allegation in the affidavit of probable cause that the

pornographic images could be hidden within an electronic device, the Supreme

Court held that "just as with a search of a home and other spaces where an

individual maintains a privacy interest, if there is probable cause that evidence of a

crime will be found within an electronic device, that evidence should not be

shielded simply because a Appellant comingles it with personal information in a

digital space with vast storage capacity. This is particularly so when, like [in that

case], the nature of the crime is electronic or internet based." Id.

Page 49 of56
 Commonwealth v. Dougalewicz, 113 AJd 817, 821, 828 (Pa. Super.

2015), is a case where the Superior Court found that a search warrant seeking

"[a]ny and all text messages, picture mail, and phone calls to and from" the

Appellant's phone was not overly broad because

the affidavit of probable cause specifically limited the time frame for the phone

records to be searched and "sufficiently identified and limited the items to be

searched and seized .... ". Similarly, in the instant case, limits on the extent of the

information to be released pursuant to the search warrant are imposed by the date

restrictions of the "[i]tems to be searched" part of the search warrant and by the

factual limitations set forth in the search warrant affidavit of probable cause.

If the terms of the affidavit of probable cause are read as limiting the scope

of the search, then, as in Green, the "warrant only allowed the officers to search

for evidence of that particular crime. They could not indiscriminately rummage

through any and all files as [Appellant] suggests, but rather could only conduct a

digital forensic search ... for evidence relating to the crimes under investigation."

Commonwealth v. Green, 265 A.3d 541, 555 (Pa. 2021 ). In Green, even though

the warrant authorized the search of all of the information in multiple, unidentified

devices, the Pennsylvania Supreme Court was "satisfied that the limiting language

provided in the warrant and supported by the affidavit of probable cause was

specific enough that rummaging would not be permitted, .... " and the Court was

Page 50 of 56
further satisfied that the warrant would not "be used as a general investigatory

tool." Id. Therefore, in that situation, the Supreme Court held that the "warrant

sufficiently described the items for which there was probable cause, it was not

overbroad." Id. That decision controls the outcome of the overbroad and lack of

particularity claims as they relate to the cell phone search warrant in this case.

Therefore, the Motion to Suppress the Cell Phone data was denied and the

request to seize the items requested on pages one (1) and six (6) of the search

warrant for the cell phone were found not to be in violation of the particularity

requirement of Article 1 Section 8 of the Pennsylvania Constitution or the 4

Amendment to the United States Constitution and the Appellant's claims are

without merit.

TESTIMONY BY SHERIFF DOUG HANNA REGARDING
APPELLANT'S EL CHAPO STATEMENT WAS ADMISSIBLE

The Appellant argues that the Trial Court abused its discretion when it

permitted testimony from Deputy Doug Hanna regarding a statement made by the

Appellant during transportation to Beaver County Jail. The statement in question

involves the Appellant stating to Hanna that he was being treated like El Chapo

because he had two bodies.

The Supreme Court of Pennsylvania has stated "[t]he admissibility of

evidence is to the discretion of the trial court and only a showing of an abuse of

that discretion, and resulting prejudice, constitutes reversible error." Sanchez, 36
Page 51 of 56
A.3d at 48. An abuse of discretion will only be found "when the law is overridden

or misapplied, or the judgment exercised is manifestly unreasonable, or the result

of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record."

Commonwealth v. Flor, 66 Pa. 384,408,998 A.2d 606,620 (201).

In the court's reasoning when ruling on the admissibility of Deputy Hanna's

testimony, the court referenced previous Pennsylvania case law, most notably

Commonwealth v. Elliot, 140 A.537, 538-39 (Pa. 1928):

"An 'admission' as applied to criminal cases has been defined as a
'statement by Appellant of a fact or facts pertinent to the issues, and
tending, in connection with proof of other facts or circumstances, to
prove the guilt, but which is, of itself, insufficient to authorize
conviction; it is a circumstance which requires the aid of further
testimony [to] generate a reasonable conclusion of guilt.' Voluntary
statements made by an Appellant, although they may not amount to a
confession of guilt, can be used against him if they tend to explain
issues on trial."

In Commonwealth v. Edwards, 178 A.20, 22 (Pa. 1935), the Pennsylvania

Supreme Court found no error in allowing "evidence of testimony by Warden

Healey of the county jail and Dr. Freeman, the jail physician, concerning

conversations had by them with appellant, after his arrest, in which Edwards

admitted his guilt." It does not appear that the actual substance of Edwards'

conversations are detailed. Nevertheless, the Supreme Court concluded that a

Page 52 of56
cautionary instruction to the jury, that they may attach whatever weight to an

Appellant's admission can" amply protect Appellant's rights ..»157

The trial court ruled that this statement made by Appellant during transport

was admissible as a hearsay exception, a Statement Against Interest in accordance

to Pa.R.E. 804(b)(3). The Pennsylvania Rules of Evidence provide that a statement

against interest is a statement that:

[A] reasonable person in the declarant's position would have made
only if the person believed it to be true because, when made, it was so
contrary to the declarant's proprietary or pecuniary interest or had so
great a tendency to invalidate the declarant's claim against someone
else or to expose the declarant to civil or criminal liability; and is
supported by corroborating circumstances that clearly indicate its
trustworthiness, if it is offered in a criminal case as one that tends to
expose the declarant to criminal liability.

The Pennsylvania Evidence Rule for a Statement Against Interest is identical

to F.R.E. 804(b)(3). In Williamson v. United States, 512 U.S. 594,599, 114 S. Ct.

2431, 2435 (1994), the United States Supreme Court noted that the Rule 804(b)(3)

was "founded on the commonsense notion that reasonable people, even reasonable

people who are not especially honest, tend not to make self-inculpatory statements

unless they believe them to be true." A statement is sufficiently inculpatory to fall

under this exception "if it would be probative at trial against the declarant." United

States v. Volpendesto, 746 F.3d 273 (7th Cir. 2014). Further, the United States

Supreme Court held in California v. Greene, that the admission of statements of a

157 Id. at 23. Sec also Commonwealth v. Bracey, 662 A.2d 1062, 1068-1069, including footnote 9 (Pa. 1995).

Page 53 of56
witness as substantive evidence against a Appellant did not violate the

Confrontation Clause of the Sixth Amendment.58

In the instant case, the Trial Court did not abuse its discretion by allowing

testimony of the Deputy Hanna. The statement showed that the Appellant was

under the impression that, by being transported back to Beaver County, he was

being treated like a leader of an international crime cartel because "he had two

bodies." The Jury was instructed to not consider the statement as evidence against

the Appellant unless they found beyond a reasonable doubt that the alleged crimes

had been committed.

Even if admittance of the statement was improper, the Appellant's

conviction was not based exclusively on Deputy Hanna's testimony. There was

overwhelming and sufficient evidence on the record for the jury to find the

Appellant guilty beyond a reasonable doubt. The jury would have yielded the same

result had the Deputy Hanna's testimony not been admitted. For example, the

surviving victim, Alessandra Briggs, identified the Appellant as the man who

entered her residence and shot her and Parker. Additionally, Michael Motton

testified that he was with the Appellant at significant points on the night of the

incident. Motton testified that had been instructed by the Appellant to stay in the

area while he "hit a lick," Motton subsequently observed the Appellant enter the

1s8 California v. Green, 399 U.S. 149 (1970).

Page 54 of 56
yard of the Premises and had picked the Appellant up in close proximity to the

crime in question.

In light of the limiting jury instruction provided with regard to the statement,

and the overwhelming evidence presented at trial, the testimony of Deputy Hanna

was permissible as a statement against interest.

CONCLUSION

For the reasons stated above, this Court respectfully submits that the

allegations of error in this case are without merit and therefore this Court's holding

resulting from a deemed denial should be affirmed. The Beaver County Clerk of

Courts is hereby directed to file the record of these proceedings with the Superior

Court of Pennsylvania, an appropriate order shall follow.

Respectfully Submitted,

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Page 55 of 56
 IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF
PENNSYLVANIA CP-04-CR-001795-2020
vs.
866 WDA2022
JOSHUA LEE DIEGDIO

ORDER

AND NOW, this 7" day of November, 2022, it appearing that the defendant

has filed a Notice of Appeal in the above-captioned case and it further appearing

that the accompanying Memorandum Opinion satisfies the requirements of Pa.

R.A.P. 1925(a), it is ORDERED that the Clerk of the Criminal Court Division of

the Court of Common Pleas of Beaver County transmit the record in the above

captioned case to the Superior Court forthwith.

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Mitchell P. Shaben, Judge

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