J-A11022-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAURICE DUPRE CLARK :
:
Appellant : No. 552 WDA 2022
Appeal from the Judgment of Sentence Entered January 19, 2022
In the Court of Common Pleas of Erie County Criminal Division at No(s):
CP-25-CR-0000230-2021
BEFORE: BENDER, P.J.E., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED: FEBRUARY 13, 2024
We previously remanded this matter to the trial court for the limited
purpose of holding a hearing regarding search warrants that this Court
deemed invalid in Commonwealth v. Clark, No. 552 WDA 2022, unpublished
memorandum (Pa. Super. filed Sept. 11, 2023). We noted in our decision that
it was unclear what evidence, if any, the Commonwealth obtained due to the
execution of the warrants. Upon review of the transcript, we conclude that
Appellant, Shaurice Dupre Clark, is not entitled to relief and affirm Appellant’s
judgment of sentence.
A complete factual and procedural history is unnecessary, and we briefly
discuss the points relevant to the remand.
On August 30, 2020, at 7:03 p.m., officers were dispatched to
investigate a reported shooting at 17th and Poplar Streets. A few
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* Retired Senior Judge formerly assigned to the Superior Court.
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minutes later, officers received reports of another shooting at 16th
and Chestnut, which was approximately five blocks from the
Poplar shooting. Patrolman Leroy Learn was the first to arrive,
and he observed five shell casings on the ground. Patrolman
Justin Seath arrived shortly afterwards, and a witness handed him
an item described as “a small wallet keychain,” which the witness
had found on the ground. N.T. Trial, 11/5/21, at 86. That item
included a key to a Mitsubishi vehicle, as well as a WIC card1
bearing a sixteen-digit identification number. Sergeant Craig
Stoker later served a search warrant on the Commonwealth’s
Department of Health and determined that the card belonged to
Savannah Lopez, who had a son, L.C. Further investigation
established that Appellant was the father of L.C. DNA testing
established that Appellant’s “DNA was one of three individuals
with DNA on the key and keychain….” Trial Court Opinion, 9/1/22,
at 9. Additionally, officers discovered that the Mitsubishi had been
struck by bullets at the Poplar scene.
The police located several surveillance cameras and obtained the
relevant recordings, one of which shows the shooter pursuing a
black BMW. As described in the affidavits of probable cause for
the search warrants, the video depicts “a black male with long hair
wearing a dark colored sweat shirt with a zipper. Under the sweat
shirt[,] the driver/shooter had on a purple t-shirt with a square
picture. He was also wearing dark colored pants and purple and
black shoes.” Affidavit of Probable Cause, 10/15/20, at 2.
Patrolman Nicholas Strauch immediately identified Appellant as
the man depicted in the videos and, on this basis, the police began
investigating Appellant as the primary suspect.
1 The Special Supplemental Nutrition Program for Women, Infants
and Children.
Id. at *2-3.
At trial, the Commonwealth introduced photographs taken from
Facebook accounts depicting Appellant wearing purple shoes, as well as an
image of an individual with his back to the camera wearing a sweatshirt with
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a photograph. The Commonwealth argued that these articles matched what
the shooter wore as depicted in the surveillance video.
On appeal, Appellant raised four claims, the fourth of which challenged
search warrants executed upon Appellant’s cell phone and Facebook accounts.
Specifically, a warrant prepared on October 15, 2020, targeted Appellant’s cell
phone, and a warrant prepared on October 21, 2020, authorized a search of
three Facebook accounts. We agreed that the trial court erred in not
suppressing the warrants. For present purposes, we note that we concluded
the search warrant targeting Appellant’s phone was entirely overbroad, as the
purported basis for issuing the warrant was to obtain exculpatory information.
According to the affidavit of probable cause, Appellant told officers after his
arrest that he had taken photographs at a birthday party around the time of
the shooting. The warrant sought to search the phone because “pictures taken
with an iPhone contain[] metadata that gives time stamps and locations.” Id.
at *21 (quoting affidavit). We concluded that probable cause to search the
phone was wholly lacking, because evidence tending to show that an individual
did not commit a crime is not the proper subject of a search warrant.
The second warrant was served on Facebook and targeted three
Facebook accounts, two of which belonged to Appellant (identified as “Dupree
Clark” and “Guap Prince”).1 The warrant sought, inter alia, all photos uploaded
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1 The third account belonged to Savannah Lopez, with whom Appellant had a
child. The only evidence introduced from these accounts showed Appellant,
Lopez, and the child. These items were publicly accessible.
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by the account owner and all communications and messages made or received
by the account owner. The affidavit of probable cause sought this information
on the basis that “it is not uncommon for people involved in criminal activity
to use social media prior to and after the commission of a crime.” Id. at *29.
We concluded that this warrant was also overbroad because the
Commonwealth “sought the complete contents of these Facebook accounts
instead of limiting it temporally.” Id. at *31. We explained that, “[w]hile we
do not express any opinion on whether probable cause existed to do so, the
Commonwealth easily could have requested to obtain only direct messages
during the relevant timespan. Instead, it chose to obtain virtually everything
that Facebook captures. We therefore conclude that the Facebook warrants
are overbroad.” Id.
Notwithstanding the DNA evidence tying Appellant to the discarded
keychain, we declined to find that the error was harmless beyond a reasonable
doubt because “the Commonwealth’s own filings reflect uncertainty that
identification was guaranteed based solely on that evidence. The Facebook
images constituted powerful corroborating evidence, and we are not presently
inclined to sua sponte declare at this juncture, without the benefit of advocacy
from both parties, that the error was harmless beyond a reasonable doubt.”
Id. Furthermore, we could not “determine what evidence should have been
suppressed.” Id. at *32. The application for the first warrant, which preceded
the Facebook warrants, had referenced the existence of photographs it had
obtained from Facebook, including a photograph depicting Appellant in purple
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shoes. Therefore, the “Commonwealth may have obtained this information
from publicly-accessible portions of Facebook.” Id. If so, those items were
knowingly exposed to the public and therefore not subject to the Fourth
Amendment. Because the record did not indicate what evidence, if any,
introduced at trial was obtained from execution of the defective warrants, we
remanded for a hearing.
The trial court held a hearing on October 10, 2023. The Commonwealth
called Detective Craig Stoker, who prepared the search warrant and served as
the lead investigator, as its sole witness. He testified that, to his knowledge,
no evidence recovered from the execution of the phone warrant was
introduced at trial. N.T., 10/10/23, at 6.
Regarding the photographs introduced at trial, Detective Stoker testified
that Exhibit 39 was uploaded on August 29, 2020, and showed Appellant
“standing at 17th and Poplar with some emojis and some sayings and things
like that.” Id. at 17. Exhibit 40 was uploaded on August 28, 2020, and
showed Appellant “standing at the convenience store.” Id. at 19. Exhibit 41
was uploaded on August 31, 2020, and showed Appellant “standing in front of
the convenience store wearing the same clothing as the previous two pictures,
in the purple shoes. It says, ‘besides the BS, life’s great.’” Id. at 20.
Detective Stoker stated that all three exhibits were “found on Dupre Clark’s
Facebook page[.]” Id. at 21. Upon questioning from the trial court, Detective
Stoker confirmed that the images were available to all members of the public.
Id. at 55 (“I got on Facebook and publicly – I’m not friends with either Ms.
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Lopez or [Appellant]. So everything that I view from them has to be a public
page.”).2
Commonwealth Exhibits 42, 43, and 44 all came from either the Guap
Prince or Dupre Clark Facebook pages. Exhibit 42 was a video uploaded on
July 24, 2020, and showed a man wearing a shirt that the Commonwealth
argued matched that of the shooter as depicted on the surveillance video.
Exhibit 43 was a photograph uploaded on July 25, 2020, and also showed that
shirt. Exhibit 44 was uploaded on November 23, 2019. It showed “a man
standing facing away from the camera with a black hooded sweatshirt.” Id.
at 22. The Commonwealth then asked Detective Stoker to explain if he
possessed any of these photographs prior to searching Appellant’s phone and
Facebook accounts. The following exchange occurred:
A. After the security video was obtained from – the video was
analyzed and [Appellant] was [identified] as Mr. Clark. I then
spoke with patrolman – well, now Detective Strauch who is
familiar with the Erie Police Department social media and who also
monitors the social media for the Erie Police Department. At which
time he advised me of two Facebook pages that [Appellant] had
currently on – in the public to see.
Q. Let’s just be clear. First of all, [Appellant] was identified by
Officer Nicholas Strauch of the Erie Police Department from the
surveillance video.
A. Correct.
....
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2 We had noted in our remand order that other jurisdictions have addressed,
in deciding whether an individual had a reasonable expectation of privacy in
social media postings, the question of whether a government agent can
become “false friends” with the target. Clark, No. 552 WDA 2022 at *32.
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Q. And was he able to provide you with two associated accounts
related to [Appellant]’s Facebook?
A. Correct.
Q. And what were those accounts?
A. Dupre Clark and Guap Prince.
Q. Now, prior to obtaining the warrant, did you review those
pages?
A. I did.
Q. And were you able to obtain photographs relevant to your
shooting investigation prior to the warrant?
A. I did.
Q. Now, what associated photographs did you already have prior
to the execution of the warrant?
A. I had the first one.
Q. And just to be clear for the record, the first one we’re talking
about … [is] Exhibit 39?
A. Yes.
Q. Okay. And once again, how did you obtain them?
A. It was posted on Dupre Clark’s public page.
Q. Were you able to access that just through going onto Facebook
without obtaining the Facebook records from the company?
A. Correct.
Id. at 27-29.
Detective Stoker additionally stated that he had Commonwealth Exhibits
40 and 41 in his possession prior to executing the warrants. He explained
that he obtained those photographs from the public portions of the
corresponding Facebook accounts. Id. at 30 (“You click on their profile and
these are the posts that they had posted publicly for everybody to see.”).
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Commonwealth Exhibits 42, 43, and 44, were possibly obtained from the
execution of the search warrant. Id. at 31 (“Q. And you do not recall having
those photographs prior to getting the warrant[?] A. No, I do not recall one
way or the other.”).
We conclude that Appellant is not entitled to a new trial. Commonwealth
Exhibits 39, 40, and 41 were photographs that the Commonwealth already
had in its possession prior to the execution of the warrants. 3 Therefore, a
subset of the evidence introduced at trial was not the product of the search
warrant and, thus, was not subject to suppression.
Simultaneously, it appears that at least some of the photographs and
videos introduced at trial may have been obtained from execution of the
warrants. We will assume that Commonwealth Exhibits 42, 43, and 44 were
obtained from the execution of an invalid warrant. We conclude that the
erroneous admission of that evidence was harmless beyond a reasonable
doubt.
Once a reviewing court has decided that admitted evidence should
have been suppressed, it must determine beyond a reasonable
doubt whether the error was harmless. Where the error is
harmless, a new trial is not warranted. Harmless error exists if
the reviewing court is convinced from the record that (1) the error
did not prejudice the defendant or the prejudice was de minimis,
(2) the erroneously admitted evidence was merely cumulative of
other untainted evidence, or (3) the properly admitted and
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3 We did not direct the trial court to prepare an opinion following the remand.
We do not conclude that an explicit credibility finding is necessary on this
point, as the affidavit referenced the existence of the photographs, and the
photographs objectively existed. Moreover, Appellant did not assert on cross-
examination that the material was inaccessible to the public.
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uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the guilty verdict.
Commonwealth v. Petroll, 738 A.2d 993, 1005 (Pa. 1999) (citation
omitted). Because some of the photographs depicting Appellant wearing
purple sneakers were lawfully obtained, any additional photographs obtained
from the execution of the warrant were merely cumulative of the untainted
photographs, as the erroneously admitted additional photographs were of
similar character. To the extent that the Commonwealth did not possess any
photographs showing Appellant’s sweatshirt, we conclude that the error did
not prejudice Appellant. Our previous memorandum decision incorporated
still photographs taken from the surveillance video, and the purple sneakers
are distinctive in a way that the sweatshirt is not. We are persuaded that the
introduction of the sweatshirt photographs was harmless beyond a reasonable
doubt.
Next, we note that the remand hearing established that the execution
of the search warrants led to evidence tying the phone to Appellant via
execution of the search warrant, as the email addresses associated with the
Prince Guap and Dupre Clark Facebook accounts were email addresses that
were stored on Appellant’s phone. On cross-examination, Appellant
established that it was possible the photographs Detective Stoker had
referenced in the affidavit of probable cause warrant for Appellant’s phone
may have come from either the Guap Prince Facebook account or the Dupre
Clark Facebook account. As well, the execution of the Facebook warrants
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produced business records which left little doubt that Appellant operated the
accounts.4 Moreover, those records definitively established the dates on which
the photographs and videos were uploaded to the accounts.
The records obtained from Facebook should have been excluded, which
includes the records concerning authentication. However, we again conclude
that this error was harmless beyond a reasonable doubt. In our prior
memorandum decision, we rejected Appellant’s claim that the Commonwealth
failed to prove that Appellant authored the Facebook posts in question. We
concluded that Appellant waived the claim; alternatively, we concluded that
the Commonwealth presented sufficient evidence to authenticate the
evidence.
Here, Appellant essentially concedes that the Commonwealth
established that he owned and controlled the accounts. See
Appellant’s Brief at 52 (conceding that the Commonwealth’s
testimony “may [have] establish[ed] Appellant’s ownership of or
control or access to these accounts”). Turning to authorship of
the posts, the Commonwealth obtained, through its warrant and
Facebook’s authentication process, documents from Facebook
establishing timestamps for each exhibit. For example, the post
showing Appellant standing in front of the intersection of Poplar
and West 17th Street was uploaded by the “Dupree Clark” account
on August 29, 2020, one day before the shooting at that location.
Appellant’s middle name is Dupree, and that fact, in conjunction
with the timing of the post, circumstantially supports that
Appellant authored it. The accompanying text essentially bragged
that Appellant did not fear whoever was “looking for” him, and the
prominence of the street signs in the picture suggest that
Appellant is telling whoever reads the post where he may be
found. The very next day a vehicle belonging to Savannah Lopez,
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4If the accounts did not belong to Appellant, it would raise questions of
whether Appellant had standing to challenge the warrant.
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the mother of his child, was struck by gunfire at that location. As
another example, the post showing the man in the sweatshirt with
the picture on its back was posted on November 23, 2019, which
included a comment from a friend wishing Appellant a happy
birthday. Appellant’s date of birth is November 22. That other
members of the public treated the account as belonging to
Appellant also supports a conclusion that Appellant controlled and
authored the posts introduced at trial. Therefore, even if not
waived, we would conclude that the Commonwealth presented
sufficient evidence to authenticate the material.
Clark, No. 552 WDA 2022 at *14-15.
We acknowledge that the records showing the Facebook accounts were
registered by email addresses that also appeared on Appellant’s phone was
strong evidence and of a different character than the circumstantial evidence
discussed supra. However, we find that the introduction of this evidence was
harmless beyond a reasonable doubt. The key question in this case was
simply whether the man depicted in the surveillance videos was Appellant.
Whether (and when) Appellant personally posted the photographs is of little
moment; the critical question is simply whether the picture depicted
Appellant. The jury had the advantage of seeing Appellant firsthand during
trial and could compare his appearance to the photographs, as well as those
photographs to the surveillance video. Because the Commonwealth lawfully
obtained the photographs showing a man wearing purple shoes, the jury was
free to determine as a matter of fact whether the photographs depicted
Appellant. If the jury concluded that the photographs were not Appellant,
then the material did not prejudice him in any way. We therefore conclude
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that any prejudice from introducing the Facebook authentication material was
de minimis.
Judgment of sentence affirmed.
Judge Pellegrini did not participate.
FILED: 2/13/2024
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