Com. v. Foss, C.
1056 EDA 2016
Pa. Super. Ct.Dec 16, 2016Background
- Defendant Clifford M. Foss was convicted by a jury of first-degree burglary and multiple related offenses arising from (a) the July 11, 2014 thefts of two ATVs and attempt of a third from Backwoods Outdoor Recreation, and (b) a July 13, 2014 after-hours pharmacy burglary stealing prescription drugs.
- Police recovered one stolen ATV in a garage Foss rented, found an ATV key in Foss’s hotel room, and recovered a water bottle from an ATV storage compartment that matched Foss’s DNA.
- Cell-phone records, a video of the pharmacy burglary showing a suspect similar in build to Foss, a distinctive Nike tread impression matching Foss’s shoes, and incriminating text messages on a phone identified as Foss’s were admitted at trial.
- Foss moved to suppress a buccal-swab DNA sample; the motion was denied. He challenged authenticity/admissibility of text messages and phone-location evidence; the trial court admitted them.
- The trial court sentenced Foss to an aggregate term of 89–300 months’ imprisonment and imposed a RRRI minimum of 74 months and 5 days. On appeal the Superior Court affirmed convictions and most of the sentencing but vacated the RRRI minimum as illegal because of the first-degree burglary conviction.
Issues
| Issue | Plaintiff's Argument (Commonwealth) | Defendant's Argument (Foss) | Held |
|---|---|---|---|
| Sufficiency of evidence to support convictions | Evidence (DNA, phone records, keys, footprint, video, texts) identifies Foss and supports convictions | Evidence insufficient to prove Foss was the perpetrator | Evidence sufficient; convictions affirmed |
| Joinder of charges from two informations | Joinder proper because evidence of each offense admissible in the other (plan/preparation/motive) | Joinder prejudicial, should have been severed | Joinder within trial court discretion; affirmed |
| Amendment to add 1st-degree burglary count pretrial | Amendment merely added proper grading given evidence and did not change factual scenario | Amendment was untimely, added facts and changed charge | Amendment proper (over one month before trial); no prejudice; affirmed |
| Denial of suppression of buccal-swab DNA warrant | Affidavit established probable cause (rented garage, key, shoe match, texts, bottle) | Warrant lacked probable cause | Probable cause on totality of circumstances; suppression denial affirmed |
| Authentication and admission of text messages | Messages properly authenticated (phone seized at intake, phone/computer naming, content) and admissible as party-opponent statements | Texts not authenticated; hearsay | Authentication sufficient; admissible under party-opponent exception |
| Admission of cell-tower location evidence | Tower records admissible tied to the same phone identified as Foss’s | Cell-phone not sufficiently linked to Foss | Admission allowed with limiting instruction linking locations to phone number only |
| Admission of DNA from water bottle (chain of custody) | Bottle shown at recovery and chain established after dealership reported it; gaps go to weight not admissibility | Delay in collection undermines reliability | Bottle evidence admissible; chain gaps for jury weight not exclusion |
| Discretionary sentencing (aggregate, factors, reasons) | Sentencing within standard range; court considered PSI and proper factors | Sentence excessive; court improperly considered prior record and claim of innocence | No abuse of discretion; sentencing affirmed |
| Merger of convictions for sentencing (trespass/mischief with burglary) | Statutory elements differ; offenses do not merge | Offenses should merge with burglary | No merger; sentences may stand separately |
| Legality of RRRI minimum sentence given burglary conviction | RRRI imposed unless ineligible; Commonwealth did not appeal RRRI imposition | First-degree burglary constitutes "history of present or past violent behavior" and thus makes defendant ineligible for RRRI | RRRI minimum reversed as illegal because a first-degree burglary conviction renders defendant ineligible under Chester and Cullen-Doyle |
Key Cases Cited
- Commonwealth v. Hansley, 24 A.3d 410 (Pa. Super. 2011) (standard for reviewing sufficiency)
- Commonwealth v. Rompilla, 653 A.2d 626 (Pa. 1995) (probable cause support where shoe tread and presence at scene linked defendant)
- Illinois v. Gates, 462 U.S. 213 (U.S. 1983) (totality-of-the-circumstances test for probable cause)
- United States v. Leon, 468 U.S. 897 (U.S. 1984) (deference to magistrate probable-cause determinations)
- Commonwealth v. Torres, 764 A.2d 532 (Pa. 2001) (reviewing magistrate probable-cause determinations)
- Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011) (text-message authentication principles)
- Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015) (ownership of phone insufficient alone to authenticate texts)
- Commonwealth v. Cugnini, 452 A.2d 1064 (Pa. Super. 1982) (chain-of-custody gaps affect weight not admissibility)
- Commonwealth v. Chester, 101 A.3d 56 (Pa. 2014) (first-degree burglary is violent behavior under RRRI ineligibility)
- Commonwealth v. Cullen-Doyle, 133 A.3d 14 (Pa. Super. 2016) (a single first-degree burglary conviction suffices to establish a history of violent behavior for RRRI purposes)
- Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (elements-based merger test for sentencing)
- Commonwealth v. Quintua, 56 A.3d 399 (Pa. Super. 2012) (criminal trespass and burglary do not merge due to differing elements)
- Commonwealth v. Johnson, 874 A.2d 66 (Pa. Super. 2005) (criminal mischief and burglary do not merge)