Case Information
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, [1] IN THE SUPERIOR COURT OF PENNSYLVANIA
Appellee
v.
TROY EMANUEL BAKER,
Appellant No. 454 MDA 2016 Appeal from the Judgment of Sentence Entered February 19, 2016
In the Court Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000034-2014 CP-22-CR-0002151-2014 BEFORE: GANTMAN, P.J., BENDER, P.J.E., and STEVENS, P.J.E.* FILED AUGUST 2017
MEMORANDUM BY BENDER, P.J.E.: judgment of Appellant, Troy Emanuel Baker, appeals from sentence of aggregate term 6 years' 8 months' 15 years' incarceration, following conviction for four burglary conspiracy counts. After careful review, affirm. trial court summarized the facts adduced follows:
At docket 34-CR-2014, [Appellant] found not guilty Count (Colonial Lounge Burglary), Count 2 (L&N Beverage Burglary), Count (Colonial Country Club Burglary), Count [5] (Super Mart Burglary),3 Counts 8, 9, 11, and 12 (Conspiracy counts). In regards to these burglaries, introduced evidence showed how Commonwealth burglaries were committed (in order establish modus operandi) what taken from each location. The [*] Former Justice specially assigned the Superior Court.
Commonwealth also introduced PowerPoint presentation that generally showed the location of each burglary pictures from the scene of the incident. As [Appellant] was found not guilty the above -mentioned burglaries, this [c]ourt will briefly discuss those that [Appellant] was found guilty below.
[3] [Appellant] was also found not guilty of the conspiracy to commit burglary in regards to these counts.
Count [3] - Barr's Exxon Interstate (Gas Station) Burglary (Pine
Grove, Pennsylvania):4 [Appellant] was found guilty of the Barr's Exxon Interstate burglary at docket 34-CR-2014, Count 3. The incident occurred after the gas station closed on June 7, 2013 (into June 8, 2013). Larry Barr, owner of Barr's Exxon Interstate, testified that cash DVD player were taken. Trooper Jordan Tuttle, a Pennsylvania State Trooper who was first arrive on the scene, introduced PowerPoint presentation that described the layout of the property, the wires were cut, the window damage, the door damage, how ATM looked, the cash register, the damage safe, etc. Trooper Tuttle also testified this burglary was very distinct it was well -executed and organized. The Commonwealth's final witness regards Barr's [Exxon] Interstate burglary was Trooper Robert Kluge who follow up on any from was asked to leads leading investigation. The also presented testimony from employee of Barr's Interstate the owner who testified what they saw regards the burglary.
[4] Barr's Exxon Interstate located around mile marker on Interstate 81 near Pine Grove exit Schuylkill County. The burglary took place sometime after gas station closed June 2013 into June 8, 2013.
Count - Blue Ridge Country Club (Harrisburg, Pennsylvania):
[Appellant] found guilty Blue Ridge Country Club burglary docket 34-CR-2014, Count 6. incident took August of 2013. Wade Boulder, employed place controller at the Blue Ridge Country Club, testified $3,500 cash taken at the time of the burglary. Officer Bryan Ryder, of the Lower Paxton Township Police, was first arrive on scene Blue Ridge incident noticed numerous wires were cut on an outside pole where the alarm system was Investigator McPhillips discussed Blue Ridge hooked up. Country Club burglary.5 As later testimony would reveal, three (3) defendants, all of whom lived the Baltimore Washington area, were followed into Pennsylvania detectives from Maryland on the night of the Blue Ridge caper as part of police investigation that state.
[5] The Commonwealth introduced another PowerPoint (Commonwealth's Exhibit 426) which showed the scene Blue Ridge Country Club burglary. Count 7 - Thorndale Exxon Gas Station Burglary (Thorndale, Chester County, Pennsylvania): [Appellant] was found guilty of the Thorndale Exxon Gas Station burglary at docket 34-CR-2014, Count 7. The incident occurred night August 26, 2013 into August 27, 2013. Rakesh Kumar ("Rocky"), part owner Thorndale Exxon Gas Station, testified DVR system, cartons of cigarettes, cigars, $7,000 $8,000 cash was taken during the burglary. Detective James Lippolis, Detective Cain Township Police Department, Chester County, processed scene and through him, the Commonwealth introduced another PowerPoint Presentation. [6] This PowerPoint presentation provided walk-through of the Thorndale Exxon Gas Station Burglary provided photographs of the following: location, the gas station itself, damaged front door, damaged ATM machine, ATM Cash Box,' lottery machine register, cash register (with wires cut), pictures of the safe, the alarm panel systenn,8 and wires from where the DVR system would have been.
[6] The Commonwealth introduced said PowerPoint presentation Commonwealth's Exhibit 505. The ATM cash box was admitted into evidence. alarm panel system admitted as
Commonwealth's Exhibit 564. Count Shell Top of the 80s Gas Station Convenience Store Burglary (located at 218, Route 93, Hazleton, PA):
[Appellant] found guilty Shell at the Top of the 80s Gas Station burglary at docket 2151-CR-2014, Count 1. The incident occurred night of September 3, 2013 into September 2013. Jihad Abdulrahman, owner of gas station, testified cigarettes cigars were taken along with
-3 an estimated $5,000 to $6,000 cash on the night of the burglary.9 The Commonwealth called Corporal Mark Dotter, of the Pennsylvania State Police, to testify to the investigation and car chase that took place following the break-in. Corporal Dotter testified that he activated his emergency lights and sirens to pull over the Yukon, which was the getaway vehicle used by the burglars, including ... Appellant. The Commonwealth proceeded to call Detective Joseph Pugliese, who at the time of the burglaries was a Detective the Howard County Police Department and a member of the ROPE unit. Detective Pugliese first testified the Blue Ridge Country Club incident and his surveillance and monitoring a white work van and a Yukon (known driven by [Appellant]) around 2:50 a.m. the morning on the night of the incident. Next, Detective Pugliese testified the incident that occurred during the Shell Top the 80s Gas Station burglary. Finally, Detective Pugliese testified that helped with the stop following the chase. Mr. Abdulrahman also testified his satellite system
for the credit card machine was taken.
Other evidence was introduced linking the Defendant and co-defendants the charged burglaries. Cindy Skylight Liquor Store Burglary (Elkridge. Maryland):'°
Police Officer John Mooney Howard County Police Department testified the burglary occurred on August 12, 2013 at Cindy Skylight Liquor Store. Officer Mooney was first officer arrive scene and made sure the scene was secure. Officer Mooney discovered purse'' (inside the purse was co-defendant[] Cornell Anthony Cole's driver's license) I[]ying grass. Once inside, Officer Mooney noticed that the alarm keypad was ripped off wall safe was tampered with outside electrical phone box was damaged the wires were cut. Detective Nathan Guilfoyle, lead investigator, testified the proactive enforcement unit (ROPE)12 got involved contact eventually made with Detective Glucksman. also introduced Commonwealth's Exhibit 425 which search warrant for installation of electronic tracking devise for GMC Yukon owned by [Appellant]. Detective Guilfoyle also testified they had also obtained search warrant (although never executed) Ford E350 work van owned by Cornell Cole. Trooper Christopher Plumadore, employed Maryland State
-4 Police, and Jon Blevit, Police Officer Whitpain Township, Montgomery County, Pa both testified to prior interactions with defendant(s). A Stipulation was read to jury regards to the 2009 incident (Trooper Plumadore), the 2010 incident (Officer Blevit), and Cindy Skylight Liquor Store.13
1° [Appellant] was not charged with this burglary. 11Introduced as Commonwealth's Exhibit 361A.
[12] This was plain -clothes type of unit who drive unmarked vehicles.
[13] This Stipulation included any charges stemming from the incident were dismissed and expunged, no charges were brought from incident, and any charges from Cindy Skylights were withdrawn and dismissed.
Cell Phone Records: The Commonwealth called Special Agent Richard Fennern testify regards to historical cellular technology. Special Agent Fennern went through background, described CAST training and (cell -phone related analysis), well as his experience, gave background what exactly historical cellular technology (can determine phone's location based on cell tower's make-up). Special Agent Fennern can look at phone records and based on when there phone activity, can give general location of the phone during the call. The Commonwealth introduced PowerPoint of Special Agent Fennern's conclusions regards his research. The in PowerPoint presented showed the various locations times individual phone records Mr. Cole, [Appellant], Mr. Smith. [14] In regards phone number Mr. Smith, an
objection made not to use his name reference a particular phone number. Said objection overruled as [Detective] Kreller had discussed the link between the phone number provided Mr. Smith.
GPS Tracking: called Sergeant Sarah Kayser, member of Howard County Police Department, testify regards GPS surveillance this case.15 Court Orders had
-5 been obtained order to do live GPS tracking the cell phones of [Appellant], Mr. Cole, and Mr. Smith.
[15] Sergeant Kayser was member on the ROPE team (previously mentioned above).
Following the testimony of Sergeant Kayser, [Detective] [Detective] Kreller indicated that Kreller was recalled to testify. [Detective] he was the lead investigator with the ROPE team. Kreller went on to testify about the Blue Ridge Country Club incident.16 In regards to the Thorndale Exxon Burglary, [Detective] Kreller explained on the night of August 26, 2013 into August 27, 2013, followed the suspects up to Mason-Dixon Line (but stayed Maryland). [Detective] Kreller also testified the burglary took place Hazleton, PA.17 At this point, the ROPE team was working with Detective Glucksman here Pennsylvania (it was more of joint venture and additional resources were available ROPE team). [Detective] Kreller actually on scene and was
part ROPE team maintaining visual surveillance of the suspects. This occurred on night September 3rd, 2013 into night of September 4th, and eventually led
arrest of the suspects.
The Commonwealth's final two witnesses were Nicholas Plumley, forensic scientist with the Pennsylvania State Police Bureau Forensic Sciences, who testified as evidence collected how it related each burglary and Detective Glucksman introduced the mobile vehicle report system videos of chase arrest of the suspects. Trial Court Opinion (TCO), 9/21/16, 3-8 (citations notes of testimony omitted). trial court also provided the procedural history leading to this
appeal follows:
Following jury commenced on January 22, 2016 and concluded February 2016, found guilty burglary conspiracy for four of the incidents acquitted of
-6 other counts. He was sentenced on above captioned
dockets follows:
Docket No. 34-CR-2014: At Count [3] (Barr's Exxon Burglary), [Appellant] was sentenced to a term of incarceration of not less than 16 months no[r] more than 36 months. At Count 6 (Blue Ridge Country Club Burglary), [Appellant] was sentenced to a term of incarceration of not less than 16 months nor more than 36 months running consecutively to Count 3. At Count 7 (Thorndale Exxon Burglary), [Appellant] was sentenced to a term of incarceration of not less than 16 months nor more than 36 months running consecutively to Count 6. At Count 10 (Barr's Exxon Burglary - Conspiracy), [Appellant] was sentenced to a term of incarceration of not less than 16 months nor more than 36 months running consecutively to Count 7. At Count 13 (Blue Ridge Country Club Burglary - Conspiracy), [Appellant] was sentenced to period of incarceration a term of not less than 16 months nor more than 36 months running concurrently to Count 6. At Count 14 (Thorndale Exxon Burglary [Appellant] was sentenced term Conspiracy), to a incarceration of not less than 16 months nor more than 36 months running concurrently Count 13.
Docket No. 2151-CR-2014: At Count [1] (Shell Gas Station Burglary), [Appellant] was sentenced to term incarceration of not less than 16 months nor more than 36 months running consecutively Count 10 on Docket No. 34-CR-2014. At Count 2 (Shell Gas Station Burglary Conspiracy), [Appellant] was sentenced term of incarceration of not less than 16 months nor more than 36 months to run concurrently with Count 1. [Appellant] entitled time credit from September 14, 2013 August 17, 2015, months 13 days.
[Appellant]'s total sentence period of incarceration less than months['] nor more than months[' incarceration].
A timely notice appeal was filed on March 17, 2016. In compliance with this [c]ourt's Order directing Appellant file [Pa.R.A.P. 1925(b) statement], filed [Rule 1925(b) statement] on April 2016. at 1-2. trial court issued its Rule 1925(a) opinion September 21,
2016.
-7 Appellant now presents the following questions our review:
I. Did not the court err in denying [Appellant]'s motion to
sever his case from those of his co-defendants pursuant to Pa.R.Crim.P. 583 when suffered prejudice result the consolidation?
II. Did not the court err in denying [Appellant]'s motion to
suppress based on illegal searches performed by Maryland Police Officers the Commonwealth of Pennsylvania outside of any permissive authority described 42 Pa.C.S. §§ 8921-8924 (regarding interstate hot pursuit) Pa.C.S. §§ 8951-8954 (regarding municipal police jurisdiction)?
III. Did not the court err denying [Appellant]'s motion[,]
based on the standard of Frye v. United States, F. (1923)[,] to exclude expert testimony of historical cell tower data acquired from [Appellant]'s cell phone providers?
IV. Did not court err permitting the Commonwealth to
introduce prior -bad -act evidence detailing activities of the three defendants, or subsets of them, when such activities were remote from the events trial when such activities not result any criminal convictions? V. Did the court err denying [Appellant]'s motion for
mistrial based upon the Commonwealth's exceeding the bounds of the pretrial ruling permitting introduce prior -bad -act evidence?
Appellant's Brief at 7-8.
Appellant's first claim concerns issue severance/joinder. Appellant was subjected joint with co-defendants Cole and Smith, after his pretrial motion sever denied. asserts that joinder improper under the governing standard, and/or that motion for severance party should have been granted.
-8 "We consider decision of whether deny a motion sever under abuse discretion standard." Commonwealth v. O'Neil, 108 A.3d "The court may order separate trials 900, 905 (Pa. Super. 2015). offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together." Pa.R.Crim.P. 583.
"Under Rule 583, the prejudice the defendant suffers due to joinder must be greater than the general prejudice any defendant suffers when the Commonwealth's evidence links him crime." Commonwealth v. Dozzo, 991 A.2d 898,902 (Pa. Super. 2010) (citation omitted), appeal denied, 607 Pa. 709, [5] A.3d 818 (2010). prejudice of which Rule 583 speaks is, rather, that
which would occur if the evidence tended to convict the appellant only by showing propensity commit crimes, or because jury was incapable of separating evidence or could not avoid cumulating the evidence. Additionally, the admission of relevant evidence connecting defendant the crimes charged natural to is consequence criminal trial, is not grounds for severance itself. (quoting Commonwealth v. Lauro, A.2d 100,107 (Pa.
Super. 2003), appeal denied, Pa. 752, 830 A.2d 975 (2003)).
Commonwealth v. Richard, 150 A.3d 504,509-10 (Pa. Super. 2016)
Moreover, "when conspiracy alleged the defendants should usually be tried together." v. Tolassi, 392 A.2d 750, 753 (Pa. Super. 1978). As our Supreme Court further explained Commonwealth v. Housman, 986 A.2d (Pa. 2009), "joint trials are preferred where conspiracy charged. [Nevertheless, s]everance may proper
-9 where a party can establish the co-defendants' defenses are so antagonistic a joint would result prejudice. ... However, the party seeking severance must present more than mere assertion of antagonism[.]" In determining whether defendant can overcome preference for joint trials of co-conspirators, consider the following three factors:
(1) Whether the number of defendants or the complexity of the evidence as the several defendants such trier fact probably will be unable distinguish the evidence apply law intelligently charges against each defendant; (2) Whether evidence not admissible against all the defendants probably will be considered against defendant notwithstanding admonitory instructions; (3) Whether there are antagonistic defenses.
Tolassi, 392 A.2d at 753.
Instantly, Appellant alleges there "danger" that jury would incapable of distinguishing evidence pertaining the prior -bad - acts his co-defendants, "despite any admonitory warnings." Appellant's Brief at 28. Specifically, Appellant not involved vehicle stop involving his co-defendants, Cole and Smith, who were stopped Montgomery County, Pennsylvania. During stop, police discovered "various tools, clothing[,] equipment that the Commonwealth Id. at 18. characterized as instruments for committing burglaries." claims "[t]here no better proof fact tha[n] the comments attorney during closing argument. Despite his long-term familiarity with the evidence, grouped all three defendants together his references ... 2010[] incident." 38-39. trial court justified its joinder/severance decision, stating:
In the instant case, the burglaries took place over an approximately five (5) month period within and around central Pennsylvania. There are numerous factors weighed favor joinder, including the fact that charges against the multiple defendants arose from same course of events. In addition, relevant evidence (i.e. the surveillance and tracking of the multiple defendants, the way each burglary was carried out, the time of occurrence of each burglary, etc.) of each crime would admissible as relevant evidence of the other charged crimes. Furthermore, the evidence against the multiple defendants (including Appellant) formed part of the "natural development" of the facts and history of Appellant's case. v. Childress, Pa.Super. 37, 680 A.2d 1184, (1996) (evidence of crimes other than the one question may be admitted where such evidence part of the history of the case and forms part of the natural development of the facts).
With respect to considering any potential prejudice, this [c]ourt finds jury capable of separation of the individual defendants/crimes because victims and witnesses for each were different and presented way during the trial. The Commonwealth's testimony on the cellular phone data and other relevant evidence presented separately by date and location of each incident. Finally, it clear jury appropriately received parsed the evidence it rendered guilty not guilty verdicts accordingly end trial. In this [c]ourt's weighing of the probative value of the common evidence, the possible prejudicial value permitting the joinder of several defendants trials the individual offenses as against the interests of judicial economy, properly exercised its discretion denying Appellant's motion severance issues presented at trial ... Appellant's motion sever the defendant from with co-defendants.
TCO at 10-11 (footnote omitted).
We agree with the court's analysis, especially light of the presumption co-conspirators should be tried together. See Houseman, supra. Furthermore, we are wholly unconvinced inclusion of evidence regarding a single prior bad act by Appellant's co- conspirators, which involve Appellant, could not easily separated by the jury, merely because isolated error by prosecutor. Moreover, his brief, Appellant provides no authority which supports view. Indeed, we agree with the Commonwealth that Appellant has simply failed to demonstrate the prejudice arising from Appellant's joinder with his co- conspirators, under these circumstances, "presents substantially more prejudice than exist[s] any joinder case...." Commonwealth's Brief 11. Accordingly, we conclude Appellant's first claim lacks merit.
Next, presents two-part claim the court erred denying motion to suppress evidence presented by the Maryland police officers, evidence which asserts collected without any permissible authority under either 1) the statutes governing interstate hot pursuit, 42 Pa.C.S. § et. seq.; or 2) Municipal Police Jurisdiction Act (MPJA), 42 Pa.C.S. § et. seq.
Our standard of review addressing challenge the denial of limited determining whether suppression motion is suppression court's factual findings are supported by record whether legal conclusions drawn from those facts are correct. Because the Commonwealth prevailed before the suppression court, may consider only the evidence of the so much of the evidence defense as remains uncontradicted when read context of the record as whole. Where the suppression court's factual findings are supported the record, we are bound by these findings and may reverse only if the court's legal conclusions are erroneous. appeal determination of the Where, here, suppression court turns allegations of legal error, suppression court's legal conclusions are not binding on an appellate court, whose duty determine if the suppression court properly applied facts. Thus, the law conclusions of law of the courts below are subject our plenary review.
Commonwealth v. McAdoo, 46 A.3d 781, 783-84 (Pa. Super. 2012) (quoting v. Hoppert, A.3d 358, 361-62 (Pa. Super. 2012)).
Some factual background necessary to understand the nature of the evidence sought suppressed, well as the manner which it was obtained. Co-defendant Cole's driver's license debit card were found at scene burglary of Cindy Skylight Liquors Elkridge, Maryland, on August 2013. N.T. Suppression Hearing, 8/26/14, at 16-18. Officers responding to the burglary collected these items from scene of the burglary, processed them into evidence, where they were reviewed by Officer Nathan Guilfoyle, who initially led investigation. Officer Guilfoyle took this evidence Repeat Offender Proactive Enforcement (ROPE) Division of the Criminal Investigations Bureau of the Howard County Police Department.
Detective Kreller supervising member ROPE team, and ROPE team's primary purpose to assist other criminal investigation divisions providing covert surveillance individuals suspected 55. Essentially, committing crimes or around Howard County. Detective Kreller was assigned to follow Cole and his suspected cohorts and report any suspicious or criminal activity observed.
Initially, Detective Kreller obtained historical cell phone tracking data which indicated presence of the suspects' cell phones near the Cindy Skylight Liquors at the time business was burglarized.' Id. at 62-64. Detective Kreller stated Cole and his cohorts were already on ROPE team's radar due prior investigations, police had been aware of their "unique MO." Id. at 93. Cole and his co-defendants were previously suspected in multiple prior burglaries. Id. Detective Kreller began to focus on Cole because of the ID evidence obtained at the Cindy Skylight Liquors burglary. Id. at 95. On one occasion prior his foray into Pennsylvania while tracking Appellant, Detective Kreller observed him, his white van, meet up with co-defendant Smith, his Yukon. Id. at 96. Officer Kreller followed them gas station Woodbine, Maryland, where burglary gas station occurred same evening. Id. Detective Kreller also observed Appellant another individual ostensibly casing gas station cohort were seen "on the Bartonsville, Maryland. roof" of the business at 2:30 a.m., inexplicably but nefarious motives, although appears if they attempt gain entry that time. Id.
On August 2013, the evening of the Blue Ridge Country Club burglary, Detective Kreller Howard County when alerted that suspects were moving north Interstate Maryland. Detective ' Commonwealth sought admit this historical cell phone tracking data under Pa.R.E. 404(b).
Kreller followed them all the way to Harrisburg, Pennsylvania. Id. at 98. Eventually, tracked them to Blue Ridge Country Club, where he first observed Cole and circling the surrounding area in Appellant's Id. at 97-99. Subsequently, Detective Kreller observed vehicle. following:
So we heard audible alarm from the Blue Ridge and we knew they were in area. And at this point it's really tough on us trying to get as close as we can without being compromised. So basically myself another detective were laying fairway of the golf course where we watched suspects walk across fairway the direction what I would refer to as the clubhouse, or the pro shop where they were there for an extended period of time.
And then observed two suspects walk back across fairway. I don't know time, five, ten minutes. I would have to review my report how long it was, where they were at the direction of the pro shop. But once they walked back across fairway there then four suspects came into our view as they walked along Route dressed all black clothing, ski masks, items their hand.
As cars came along Route suspects would go to guardrail. They would go wood side of the guardrail. They would hunch down where it looks thick. They were trying to hide themselves from traffic. And they would then walk back continue along Route 39. Id. at 100. Detective Kreller enter Pennsylvania response request from any Pennsylvania police department. However, neither Detective Kreller nor ROPE team members attempted effectuate an arrest of any of the individuals they observed at that time. 103.
Appellant sought suppress these observations, well as cell phone tracking evidence led Detective Kreller follow the defendants Blue Ridge Country Club, based on claim Detective Kreller and his fellow Maryland officers made these observations without any authority under, or in contravention to, Pennsylvania law. first asserts Maryland officers were conducting
search within the meaning of the Fourth Amendment U.S. Constitution, and Article I, Section 8, of the Pennsylvania Constitution, thus requiring warrant or a showing of probable cause and exigency absence warrant, when they tracked Appellant's his cohort's cell phones using real-time, GPS data provided by their phone carriers. We agree with this aspect of Appellant's argument. See v. Rushing, 71 A.3d 961-64 (Pa. Super. 2013) (holding the "[a]ppellant have legitimate expectation of privacy government could not surreptitiously track real time location via his cell phone signal" that the "police were required make showing of probable cause order to obtain real time cell site information data," demonstrate "exigent circumstances" absence warrant), rev'd other grounds, 99 A.3d 416 (Pa. 2014).
However, Appellant's argument then immediately proceeds to consider whether "the exclusionary rule applies," after summarily concluding that "[i]nasmuch their activities are not embraced statutory exceptions set forth Pa.C.S. §§ 8921-8924 Pa.C.S. §§ 8951-8954...." Appellant's Brief 44. Appellant overlooks, or simply fails to develop, any argument these searches were, fact, unconstitutional or otherwise illegal under Pennsylvania law. Although is apparent that Appellant believes the MPJA and hot pursuit statute were violated, there is virtually no explanation beyond bald assertion to why that the case. Moreover, find Appellant's argument to be unresponsive to the court's analysis in its opinion. Regarding Appellant's claim(s), the trial court stated:
[Appellant], contending that the in essence, observations, cellular phone records "pings" obtained by Maryland law enforcement officers should be suppressed. The law enforcement officers merely observed what Maryland occurred at the Blue Ridge Country Club. After observing the burglary at Blue Ridge, Detective Guilfoyle reached out to Detective Glucksman. Additionally, the Thorndale Exxon incident, [Detective] Kreller testified he followed suspects up Mason-Dixon Line (but stayed Maryland). We are unable to ascertain how Maryland Officers "illegally" entered the Commonwealth of Pennsylvania thus causing their visual observations be suppressed. ROPE team was operating investigating suspects were believed in their own jurisdiction. After tracking suspects to Pennsylvania, they observed them at the golf course and did not attempt make an arrest. Instead, they followed the proper channels made contact with detectives from Pennsylvania. We further note Detective Glucksman Maryland Officers entered joint operation an attempt to stop this string of burglaries. The Howard County Police officers were doing their job attempt stop string of burglaries that their jurisdiction. [Appellant] was had been occurring ultimately arrested by Pennsylvania State Troopers and Detective Glucksman affiant this case. Accordingly, it clear this Court not err denying [Appellant]'s pretrial motion suppress any and all evidence observed Howard County Police Officers.
TCO at 12.
First, we agree with the trial court's implying Maryland officers' observations Blue Ridge Country Club did constitute constitutionally regulated search or seizure. Among other things, Appellant had no legitimate expectation of privacy with regard to observations of his conduct while trespassed golf course the middle of the night. See generally v. Russo, 934 A.2d 1199, 1213 (Pa. 2007) (holding "that the guarantees of Article I, Section of the Pennsylvania Constitution do not extend to open fields; federal state law, this area, are coextensive"). Appellant provides no argument contrary.
Second, with regard live -tracking of Appellant's cell phone into Pennsylvania, the obtaining of his historical cell phone records (which included data showing Appellant's presence movement Pennsylvania), does dispute that these 'searches' were the subject of lawfully obtained court orders Maryland. Thus, while the circumstances of this case might present the novel issue whether continuous searches of this nature, although authorized lawful court orders Maryland, nevertheless cease being lawful when they cross an interstate border, Appellant provides no discussion, whatsoever, why is case, other than baldly invoke the MPJA hot pursuit statutes.2 In his brief, Appellant sidesteps Indeed, such searches are illegal, or become illegal once they cross state lines, is far from obvious. We note MPJA provides a police officer has the power act outside of primary territorial jurisdiction when "the officer is acting pursuant an order issued by court record or an order issued by district magistrate whose magisterial district located within judicial district wherein the officer's primary jurisdiction situated ... except the service of arrest or search warrant shall require the consent chief law enforcement officer, or (Footnote Continued Next Page)
this issue entirely merely presumes the searches' illegality, and then argues, extensively, to why the exclusionary rule should apply. This is putting the proverbial cart before the horse. Consequently, we are constrained to conclude Appellant has waived his suppression claim its entirety due to his failure to adequately develop argument appeal. See v. Walter, 966 A.2d 560, 566 (Pa. 2009) (holding claims waived for failure to develop them).
Next, Appellant claims trial court erred denying his challenge exclude evidence pursuant Frye; specifically, Appellant sought exclude testimony which interpreted the historical cell phone records order determine Appellant's his co-defendants' locations at time robberies.3 "Under Frye, novel scientific evidence is admissible if methodology underlies the evidence has general acceptance relevant scientific community." Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1043-44 (Pa. 2003).
(Footnote Continued)
person authorized by him to give consent, of the organized law enforcement agency which regularly provides primary police services municipality wherein the warrant served." Pa.C.S. § 8953(a)(1). Appellant does not explain why this provision apply Maryland officers, considering they obtained court orders for live -tracking of Appellant's cell phone, historical cell phone records, their primary jurisdiction, no arrest or search warrants were "served" outside of that jurisdiction. does not challenge any evidence concerning the real-time tracking of his cell phone under Frye.
As a general rule, this Court's standard of review of a trial court's evidentiary ruling, including a ruling whether expert scientific evidence is admissible against a Frye challenge, is determining whether trial court abused limited its discretion. Grady[], ... 839 A.2d [at] 1046[]; Zieber v. Bogert, 565 Pa. 376, 773 A.2d 758, 760 n. [3] (2001) (citing Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225 (2000)). "An abuse of discretion may found merely because an appellate court might have reached different conclusion, but requires result of manifest unreasonableness, or partiality, prejudice, bias, or ill -will, or such lack of support so as be clearly erroneous." Grady, 839 A.2d at 1046 (citing Paden v. Baker Concrete Constr., Inc., 540 Pa. 658 A.2d 341, 343 (1995)).
Commonwealth v. Dengler, 890 A.2d 372, (Pa. 2005). admissibility of expert scientific testimony is governed by Pa.R.E.
702, which reads:
A witness who is qualified expert knowledge, skill, experience, training, or education may testify form an opinion or otherwise if:
(a) expert's scientific, technical, or other specialized knowledge beyond possessed by the average layperson;
(b) expert's scientific, technical, or other specialized knowledge will help trier fact understand the evidence or determine fact issue; and (c) expert's methodology generally accepted relevant field.
Pa.R.E. 702.
Our Supreme Court has explained: This Court has noted Frye test, which adopted Pennsylvania v. Topa, Pa. 223, 369 A.2d 1277 (1977), "is part of Rule 702." Grady, 839 A.2d at In Frye, the Court of Appeals District of Columbia 1042. considered whether expert evidence concerning blood pressure "deception test," which supposedly determined whether test subject was being truthful based on changes in blood pressure, admissible against a criminal defendant. In rejecting the evidence, the court opined that, be admissible, the evidence must be sufficiently established accepted in the relevant scientific community:
Just when a scientific principle or discovery crosses the line between the experimental demonstrable stages is difficult define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well -recognized scientific principle or discovery, the thing from which the deduction made must be sufficiently established to have gained in the particular field general acceptance in which it belongs.
Frye, F. at 1014. This passage sets forth core of what has come to be known "Frye test."
In Topa, where this Court considered spectrographic voice print identification evidence, described Frye standard as follows: "Admissibility [scientific] evidence depends upon the general acceptance of its validity by those scientists active field which the evidence belongs." at 1281. In finding the proffered scientific evidence inadmissible in Topa, the Court quoted the rationale set forth by the Court of Appeals of District of Columbia United States v. Addison, 498 F.2d 741, 744 (D.C. Cir. 1974):
"The requirement of general acceptance the scientific community assures those most qualified to assess general validity of a scientific method will have determinative voice. Additionally, Frye test protects prosecution defense alike assuring minimal reserve of experts exists who can critically examine the validity scientific determination particular case. Since scientific proof may some instances assume posture of mystic infallibility eyes jury laymen, the ability produce rebuttal experts, equally conversant with the mechanics methods of particular technique, may prove essential." Topa, 369 A.2d at 1282.
This Court has consistently followed this manner of approach when confronted with novel scientific evidence three decades since our adoption of Frye. See Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981) (process of refreshing recollection by hypnosis not yet accepted); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992) ("Sexually Abused Child Syndrome" evidence not admissible); Commonwealth v. Zook, 532 Pa. 79, 615 A.2d [1] (1992) (electrophoresis test of dried blood stains deemed admissible); Commonwealth v. Crews, 536 Pa. 508, 640 A.2d 395 (1994) (certain DNA evidence deemed inadmissible); Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997) (repressed memory theory inadmissible); deemed v. Crawford, 553 Pa. 195, 718 A.2d 768 (1998) (revived repressed memory testimony rejected); Blum ex rel. Blum v. Merrell Dow Pharmaceuticals, Inc., 564 Pa. 3, 764 A.2d [1] (2000) (expert testimony regarding causal link between mother's ingestion of drug child's birth defect deemed too unreliable admitted where it involved recalculation of data used other studies); Grady, supra (expert witness's conclusion concerning safety of food product inadmissible because expert's methodology lacked general acceptance relevant scientific community purposes of In addition, Grady, this Court reaching such conclusion). recently made clear Frye would remain the governing Pennsylvania standard, not the newer federal standard represented by Daubert v. Merrell Dow Pharmaceuticals, Inc., U.S. 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Grady, 839 A.2d at 1044-45.
Dengler, A.2d 380-81.
Instantly, Appellant argues court erred admitting evidence concerning location, or the location of his co-defendants, which derived from the historical data obtained from their cell phones. explains:
Historical cell tower records, also known call detail records, are the billing records cell companies use keep track their customers' calls. They show the date time of all calls made or received, the numbers called, the duration each call, cell towers used to begin and end call.
By comparison, it is a more established procedure a cell company - after being served with a court order or search warrant - perform a real-time, live "ping" of a cell phone equipped with GPS technology. GPS "pinging" many cases can assign a caller's location down a radius of meters.
At trial, the Commonwealth produced expert testimony that, inter alia[,] had these components: (a) [Appellant]'s cell phone utilized a particular degree "sector" of a particular cell phone tower a time relevant the prosecution; (b) the cell phone was located at time quantifiable distance - so-called "footprint" - from the relevant sector of that particular cell tower. The first conclusion is based on premise cell phone will always connect tower with strongest signal, usually the one closest to the phone when call is made. The so-called "footprint" context of the second conclusion is actually quantification radio range of the particular cell tower.
At the pretrial Frye hearing on August 2014, the Commonwealth presented no expert testimony. employee of Sprint was admittedly not an expert. Neither was Detective Glucksman. He merely stated he trained plot the historical cell tower information map pursuant to instructions received at certain courses. Accordingly, the produced no expert testimony at the pretrial hearing detailing the scientific basis behind the two components of cell tower analysis.
In point of fact, the Commonwealth at the time of the pretrial hearing even believe necessary to present expert witness at trial. That belief changed by time of trial, the Commonwealth produced expert testimony from FBI Special Agent Richard Fennern. However, even if one bootstraps Richard Fennern's trial testimony onto the evidence adduced at the pretrial Frye hearing, there still no expert testimony explaining the scientific basis historical cell tower analysis, especially the method which FBI able to calculate quantifiable "footprint" cell tower at the relevant time.
Appellant's Brief at 49-51 (citations to record omitted).
The court determined that the contested testimony was not "novel" under the Frye test. TCO at 14. court's conclusion was based on Special Agent Fennern's testimony that
with his ample education experience, [he] credibly confirmed that historical cellular data analysis is not novel science. There was nothing presented in testimony to dispute that functioning cell phone in relation to the cell tower the resulting data recorded is [not] novel cellular service provider community or the electronics community generally.
TCO at 14-15.
Thus, the Commonwealth put forward evidence through Special Agent Fennern that science at issue is not novel. In brief, Appellant fails to point any evidence or testimony that contradicts this conclusion. Indeed, our review of the record indicates not offer testimony by any expert, any field, contradict the Commonwealth's evidence science issue novel. It is not apparent, therefore, under our abuse - of -discretion standard of review, court's decision this regard was contrary any evidence or testimony record. In fact, it was consistent with the only evidence of record presented on the topic.
Nevertheless, Appellant's argument suggests court's decision contrary existing law, or should determined be, despite the evidentiary record this case. In this regard, Appellant relies on federal district court case, U.S. v. Evans, 892 F.Supp.2d (N.D. III. 2012), which similar evidence rejected the federal district court. Initially, the Commonwealth objects this authority basis not precedential, applied Daubert standard, not the Frye standard as is applicable this Commonwealth. While we recognize that Evans not precedential, we may look to it as persuasive authority. See Martin v. Hale Products, Inc., 699 A.2d 1283, 1287 (Pa. Super. 1997) ("Decisions of the federal courts lower than the United States Supreme Court possess persuasive authority."). And while agree with the Commonwealth that the applicable standard differs, this Court categorically barred from considering the reasoning behind decision coming our own conclusion.
In Evans, kidnapping case, the prosecution proposed to call Special Agent Raschke to testify about the operation cellular networks how to use historical cell site data to determine the general location of cell phone at the time particular call. Applying theory called "granulization," Special Agent Raschke proposes testify that calls placed from Evans's cell phone during the course of the conspiracy could have come from building where the victim was held ransom. Evans, 892 F.Supp.2d at 951.
Evans challenged Agent Raschke's testimony under the F.R.E. 702, i.e., Daubert test. The court first determined Agent Raschke was qualified "to testify expert concerning the operation of cellular networks granulization theory." Id. at 955. court also determined Agent Raschke's testimony regarding how the cellular networks operate, without applying knowledge the facts of the case, was admissible. However, the court ultimately determined Agent Raschke could not testify regarding the application of the granulization theory the facts of the case, that is, he could not testify regarding a prediction as a specific location for the Evans' cellphone, "[Oven that multiple factors can affect the signal strength a tower that Special Agent Raschke's chosen methodology has received no scrutiny outside law enforcement the community, the court concludes the government has not demonstrated testimony related the granulization theory is reliable." Id. at 957 (emphasis added). This was despite Agent Raschke's testimony that "he has used this theory numerous times in field to locate individuals in other cases with a zero percent rate error. He also testified other agents have successfully used this same method without error." at 956.
In our view, the federal court's decision Evans distinguishable from instant matter both the facts law. First, as a factual matter, Evans case involved pinpointing Evans' cell phone at particular location particular time. As noted here, Evans court, this can be problematic because the presumption cell phone connects to closest cell phone tower may sometimes be incorrect. Obstructions could cause phone to connect different tower, or a particular call could rerouted due to network traffic. Thus, pinpointing cell phone's location at one moment time potentially unreliable.
However, the nature of the evidence this case not nearly as unreliable. Agent Fennern testify to precise locations defendants' phones. Agent Fennern demonstrated defendants' cell phones showed activity Maryland before the burglaries, activity vicinity burglaries in various locations in Pennsylvania at the same time as the burglaries, and then more activity back in Maryland following the burglaries. N.T., 1/29/16, at 1030-63. Most importantly, this information consistent for each of the defendants' phones. At no point Agent Fennern testify that any of the defendants were at the scene a particular burglary at particular time. Nevertheless, in aggregate, this powerful circumstantial evidence of the defendants' involvement coordination the burglaries. Although it may not have been 100% clear which specific tower specific cell phone was communicating with specific time, defendants' cell phones were not communicating with tower central Pennsylvania when data indicated apparent activity the Baltimore area, vice versa, given the inherent limitations of the range limits of the cell phones and cell phone towers. Accordingly, find concerns of Evans court were relatively minimal instant case.
Second, it appears if the basis Evans court's decision was, at least part, based Daubert factor is not required under the Frye standard. Under Frye, test is whether "novel scientific evidence is admissible if methodology underlies the evidence has general acceptance relevant scientific community." Grady, A.2d at 1043- (emphasis added). Under Daubert, "the trial judge evaluates whether the evidence will assist the trier of fact, whether the evidence reliable scientifically valid." at 1044. Thus, under the federal Daubert standard, reliability determined the court. Under Frye, reliability is evaluated the jury. In Evans, the court determined that the assumptions about which towers were used, assumptions necessary to pinpoint cell phone's location, were unreliable light of the specific purpose which scientific theory question was being used. Not only are such concerns not nearly as impactful on the evidence the instance case, but it for jury determine reliability expert's opinion. Moreover, the Evans court's decision on this matter does represent any sort consensus the federal courts. At least two other federal district courts have reached the opposite conclusion regarding identical objections same technology concerning general acceptance reliability. See U.S. v. Banks, F.Supp.3d 1237, 1252 (D. Kan. 2015) ("The [c]ourt finds Benford's analysis persuasive reaches same conclusion did."); U.S. v. Benford, WL at *3 (N.D. Ind. 2010) (holding provide expert opinion about witness qualified the defendant's approximate location based on cell -site data) (unreported).
Finally, here, trial court determined science involved was "not novel science[,]" based on its determination Agent Fennern testified credibly effect. TCO 14-15. While the Evans court reached different determination, its factual conclusions were not binding on trial court this case, and given the opposite conclusions reached Benford Banks, we ascertain no abuse discretion basis. Accordingly, conclude Appellant's third claim lacks merit.
Next, Appellant asserts trial court abused its discretion when admitted prior -bad -acts evidence concerning three defendants, regarding
(1) the August 13, 2013, burglary of Cindy's Skylight Howard County, Maryland; (2) a search of a vehicle Montgomery County, Pennsylvania, May 10, 2010, said vehicle being occupied by [Appellant]; (3) search of vehicle in Walkersville, Maryland, July 2009, said vehicle being occupied [Appellant] Cornell Smith. Appellant's Brief 54. Specifically, argues that, contrary ruling of the trial court, this evidence not constitute "identity" or "res gestae" evidence within the meaning of Pa.R.E. 404(b)(2). admission of evidence is solely within the province of trial court, decision thereto will not disturbed
absent showing an abuse discretion. "An abuse discretion is merely error of judgment, but if reaching conclusion law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill -will discretion ... abused." Commonwealth v. Murray, A.3d 137, 155-56 (Pa. 2013) (internal citations omitted).
Generally, evidence of prior bad acts or unrelated criminal activity is inadmissible show defendant acted conformity with those past acts or to show criminal propensity. Pa.R.E. 404(b)(1). However, evidence of prior bad acts may be admissible when offered prove some other relevant fact, such motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident. Pa.R.E. 404(b)(2). In determining whether evidence of other prior bad acts is admissible, the court obliged to balance probative value of such evidence against its prejudicial impact. v. Powell, Pa. 224, 956 A.2d 419 (2008).
Commonwealth v. Sherwood, 982 A.2d 497 (Pa. 2009). Another exception prior -bad -acts -evidence ban set forth Rule 404(b)(1) has been recognized our courts, although not explicitly mentioned Rule 404(b)(2),4 is one "that permits the admission of evidence where it became part of the history case and formed part of the natural development facts. This exception commonly referred as res gestae exception." Commonwealth v. Ivy, A.3d 241, 251 (Pa. Super. 2016) (citation omitted).
With regard to identity exception set forth Rule 404(b)(2), this Court has previously stated:
Identity as charged crime may be proven with evidence of another crime where the separate crimes share a method so distinctive circumstances so nearly identical to constitute virtual signature of the defendant. Required, therefore, such high correlation the details of the crimes proof person committed one of them makes it very unlikely anyone else committed the others. v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009)
(citations quotation marks omitted). However, "[a] review of Rule 404(b)(1) relevant jurisprudence shows other crime need not match every fact circumstance of the charged crime before may be used to prove identity." at 1190. As comment Rule 404 notes, "Pa.R.E. 404(b)(2) ... contains non -
exhaustive list purposes, other than proving character, which person's other crimes wrongs or acts may admissible." Pa.R.E. 404 (comment) (emphasis added).
The trial court determined the instant case was substantially similar to what had occurred in Weakley. TCO at 21. In Weakley, robbery/murder case involving victims Kerkowski and Fassett, the Commonwealth sought to introduce evidence against Weakly and his co- conspirator regarding subsequent robbery of Samuel Goosay, due to following similarities between the two cases:
(1) Both crimes were allegedly committed Selenski and co- defendant Weakley; (2) Flex ties found on the bodies of the homicide victims were visually, instrumentally, and steromicroscopically similar those removed from Samuel Goosay, victim of the subsequent robbery; (3) Flex ties were used bind hands of Kerkowski and Fassett in homicides, and used to bind hands Goosay in the robbery. (4) Duct tape found body of the homicide victim Kerkowski visually, instrumentally and stereomicroscopically similar the tape removed from Goosay, robbery victim; (5) Duct tape used cover the eyes of Kerkowski and Goosay; (6) Flex ties were used conjunction with duct tape as distinct method of restraint victims the two incidents; (7) The two crimes or incidents occurred or involved the victims' residences, as opposed their businesses; to (8) Kerkowski and Goosay were both small business owners; (9) Goosay's jewelry store and Kerkowski's pharmacy both dealt in large sums cash; (10) Jewelry prescription drugs have independent street value; (11) The victims of the two matters were left bound the assailants fled; (12) Flex ties duct tape were found or seen both defendant's properties and/or their vehicles.
Weakley, A.2d at 1192. court granted defendants' motions limine to exclude this evidence pursuant Rule 404(b)(1). This Court reversed, holding that:
While this list requires pruning of conclusory repetitive entries, what remains nevertheless describes crime so distinctive method so similar charged crime that proof appellees committed one tends to prove they committed the other. The evidence thus goes beyond showing mere conformity with propensity commit class of crime, to wit, violent robbery-a purpose prohibited under Pa.R.E. 404(b)(2). Instead, the evidence shows identity-a purpose permitted under Pa.R.E. 404(b)(3)-through selection of particular class of victim and use of idiosyncratic methods carry out the crimes. probative value of this strong identity evidence, moreover, outweighs its presumed potential for prejudice.
Weakley, A.2d at 1188.
Instantly, his brief, Appellant provides no response trial court's reliance Weakley. Instead, he relies on boilerplate statements law concerning the identity exception, from which conducts own analysis. Although Appellant's analysis not trivial, we are constrained by our reading Weakley to conclude that that trial court not abuse its discretion permitting the at -issue prior bad acts to be admitted under identity exception. Although the identity -based justification admission of this evidence appears somewhat or marginally less "unique" than the evidence involved Weakley, this matter so distinguishable from case such it would compel us conclude the trial court's decision abuse discretion. To clear, we hold while the trial may very well have committed "an error judgment" admitting this evidence under the identity exception Rule 404(b)(1), that error was neither "manifestly unreasonable," nor clear misapplication law. Murray, A.3d 156. Rather, deem court's decision to be within range wherein reasonable minds can disagree whether the evidence sufficiently unique constitute "identity" evidence. See Grady, 39 A.2d at 1046 ("An abuse of discretion may not be found merely because an appellate court might have reached different conclusion...."). if is was clearly erroneous or manifestly
Nevertheless, even unreasonable determination that the three contested incidents were admissible under the identity exception, would nevertheless decide, sua sponte, admission of evidence constituted harmless error this case, for multiplicity of reasons. "The standard for determining harmless error firmly established v. Story, 476 Pa. 383 A.2d (1978). An error will be deemed harmless where the appellate court concludes beyond reasonable doubt error could not have contributed verdict. If there reasonable possibility error may have contributed verdict, it harmless." Commonwealth v. Mitchell, 839 A.2d 202, (Pa. 2003).
First, with regard to all co-conspirators, this evidence might have been admissible to show opportunity and/or absence mistake, especially two incidents involving traffic stops where burglary tools were discovered. Here, large volume of historical cell phone evidence cohorts were demonstrated repeatedly and consistently vicinity each of the burglaries which they were tried, but no evidence could put them precisely inside businesses which had been burglarized. Thus, could argued, albeit somewhat unreasonably, that the historical cell phone evidence merely coincidental. However, when the same co-conspirators had been previously found traveling together with burglary tools, such evidence tends strongly show that the historical cell phone evidence did falsely implicate them by mere "accident." Their collective possession burglary tools at earlier times, whether or not they were arrested during those traffic stops, also demonstrated, some extent, "opportunity" commit the subsequent burglaries. Thus, while it may have been difficult specifically characterize this prior -bad -acts evidence as precisely falling into one category set forth in Pa.R.E. 404(b)(2), tend loosely fit the purpose of many of the enumerated categories of prior -bad -acts exceptions. In this regard, we reiterate list of enumerated exceptions set forth in Pa.R.E. 404(b)(2) non -exhaustive. See footnote supra.
Second, the evidence in this case was, in fact, overwhelming, albeit circumstantial, and the potential prejudice deriving from the disputed evidence was minimal comparison. Simply put, in aggregate, the historical cell phone data placing each co-defendant vicinity each robbery at the time of those robberies was overwhelming evidence of guilt, especially light of the fact co-defendants were caught fleeing the final burglary (Shell at Top 80s Gas Station) Appellant's vehicle, which found to contain burglary tools required for the manner which the burglary occurred, well as some of the items reported stolen from location.
Third, with regard Appellant's specific objections not directly involved two of the prior incidents, Appellant correct that such fact makes that evidence less probative with respect his own guilt. However, for the very same reason, that fact also tends to make the evidence far less prejudicial to him within the context of Rule 404(b). Prior bad acts are inadmissible "to prove a person's character order to show that a particular occasion the person acted accordance with character." Pa.R.E. 404(b)(2). Evidence of Appellant's co-conspirators' prior bad acts does not tend to prove or risk adverse jury inferences regarding Appellant's character, because was not involved those incidents. Appellant does not dispute the jury was accurately instructed with regard participants each of those prior events. It appears this Court quite unlikely jury would draw adverse, illogical inference regarding Appellant's character from the prior conduct of others.
Accordingly, we hold trial court abuse its discretion admitting prior -bad -acts evidence identity question under the exception because, although we might have arrived different conclusion, trial court's decision neither manifestly unreasonable nor clear misapplication law. In any event, would conclude admission of this evidence constituted harmless error, beyond reasonable doubt, even if erroneously admitted.
Finally, asserts court abused its discretion by overruling two separate motions mistrial, 1) when the prosecutor, during opening statement, referred prior unlawful activity Appellant and his co-conspirators Maryland; and 2) when Commonwealth witness, Detective Kreller, alluded prior unlawful activity by Appellant and his co- conspirators in Maryland. Appellant asserts that, on both occasions, the Commonwealth exceeded the bounds set by the trial court in its pretrial rulings on the motions in limine filed the parties.
"The grant of mistrial is within the sound discretion of the trial judge. A mistrial is required only when an incident is such nature that its unavoidable effect deprive appellant fair trial." Commonwealth v. Crawley, 526 A.2d (Pa. 1987) (internal citations quotation marks omitted). Even assuming these two events exceed bounds of the pretrial orders,5 the Commonwealth argues that any such error was Appellant does not direct this Court's attention where in record such pretrial rulings or restrictions can be found. While it apparent that the trial court granted the Commonwealth's motion in limine, thereby permitting evidence regarding the prior -bad -acts evidence discussed above, this Court could not locate the order in question in the certified record. However, the basic nature of order not in dispute. By inference, therefore, permitted admit evidence of other prior bad acts. Moreover, immediately prior trial, co-defendants raised oral motion limine regarding the ROPE team's acronym moniker, which means "Repeat Offender Proactive Enforcement." The defendants objected "because of the prejudice it would call into jury's mind regarding our clients their prior criminal histories." N.T., 1/22/16, at 7. In response, prosecutor stated that, "[a]bsent any door opening the defense's side, the only plans introducing prior bad acts or prior history would be information we've already moved for 404(b) admission, those things were included ROPE [team's] dossier those would be things would seeking enter into evidence at trial." 9. court responded, e[v]ery well," indicating granting the oral motion limine. Thus, any other prior -bad -acts evidence other than three events discussed above were effectively precluded result of the court's granting of these two motions limine.
harmless, both instances, and did not amount to prejudice "of such nature that its unavoidable effect is to deprive appellant of fair trial." Crawley, 526 A.2d at 342. For the reasons that follow, agree with Commonwealth.
The first ostensible breach of the motions limine occurred during the Commonwealth's opening statement the jury. At that time, the prosecutor described ROPE team follows:
It's proactive enforcement team funded by county down there who keeps dossiers people who may have prior circumstances that might mirror these situations.
And what you'll hear from them that they had dossiers on at least two of these individuals having substantially similar tools the type that would have committed these types burglaries 2010.
[The prosecutor then describes two of prior -bad -act events that were deemed admissible by trial court.]
As you'll hear, ROPE team, the other job they do on top keeping dossiers surveil. They are proactive team. They're somebody who looks at crimes have happened like most law enforcement. No, they're active.
N.T., 1/22/16, 49-50. co-defendants objected requested mistrial following the prosecutor's opening statement, on basis prosecutor had made multiple references "dossiers" the defendants. prosecutor argued the term "dossiers" only referring the two prior -bad -act events which had been deemed admissible court, explaining, "I didn't make any reference any prior burglaries would have been conducted or criminal history...." Id. at 57. The defendants countered that "calling them dossiers that they have the individuals, that highly inflammatory and would lead jury believe that they have records other backgrounds beyond the limited items that this Honorable Court allowed come in under 404(b)." Id. The trial court denied defendants' motion for mistrial. 58. "dossiers" was somewhat
While the prosecutor's reference ambiguous, not explicitly refer any prior bad acts beyond those deemed admissible. would have this Court conclude that such ambiguity necessarily infected the jury with worst possible inference, "dossiers" in question involved evidence of criminal activity beyond what directly suggested in remarks. However, we are under no obligation assume case. As United States Supreme Court has stated with regard an ambiguous statement during prosecutor's closing remarks: 'consistent repeated misrepresentation' a dramatic
exhibit evidence may profoundly impress a jury may have jury's deliberations. a significant impact on Isolated passages prosecutor's argument, billed advance to the jury matter of opinion not of evidence, do not reach same proportions. Such arguments, like all closing arguments counsel, are seldom carefully constructed toto before the event; improvisation frequently results syntax left imperfect meaning less than crystal clear. While these general observations no way justify prosecutorial misconduct, they do suggest court should lightly infer prosecutor intends ambiguous remark to have its most damaging meaning or jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations.
Donnelly v. DeChristoforo, U.S. 637,646-47 (1974).
Here, while it may have constituted misconduct for the prosecutor to carelessly use the term "dossiers," clear this context that he intended refer the already -deemed admissible, prior -bad -acts evidence, no more. That clarity arises not just from the prosecutor's subsequent defense his statement, but also flows from statement itself. Most importantly, we do not view statement inflammatory such extent that Appellant deprived of fair trial because it. Therefore, conclude court abuse its discretion when it declined grant mistrial basis.
The second ostensible breach of the motions limine occurred during testimony of Detective Kreller. In his brief, Appellant states that Detective Kreller "revealed unit investigating the defendants for activities addition instances were the subject of the [c]ourt's pretrial ruling." Appellant's Brief at 64. also provides page (citing N.T., 1/28/16, 941-42). number apparent offense. However, nowhere Appellant's brief does explain how Kreller's testimony breached pretrial rulings, nor such breach immediately apparent this Court from our reading of cited pages, as no objection was lodged immediately.6 Presumably, Appellant takes issue with Detective Kreller's statement there "probable cause dates back long time prior this actual case ... from prior cases dating back to 2009 [and] 2010." N.T., 1/28/16, at 941. Detective Kreller then identifies those "cases" as being from Walkersville, Maryland, Frederick County, 2009. Id. at 942. Those dates correspond with the admissible prior -bad acts evidence, but not with the locations of those events. The trial court denied Appellant's motion mistrial, but stated:
I'll deny the motion for now. However, 404(b) has gone far beyond what I thought it was going be.
I just want -- the only testimony I want hear these guys following this crew from Maryland up here that's it. Nothing else.
Id. at 957.
This breach appears somewhat more egregious than the prosecutor's statement during opening argument. While term "dossiers' was patently ambiguous with respect whether implied prior criminal conduct, Detective Kreller's use term, "probable cause" this instance, far less so. use term certainly indicated some sort prior criminal investigation was being referenced, "probable cause" term typically used outside of the criminal context. Several questions later, Appellant's counsel objected, but the basis for
the objection does not appear record. Id. at 943. Indeed, the request for mistrial not occur until direct examination of Detective Kreller ended. at 956.
-40- However, we observe no details of any sort regarding those investigations, beyond general date and general location, were mentioned by Detective Kreller. There was no mention of who, specifically, was target prior investigation(s), what specific or general type crime(s) had been involved, what facts led finding of probable cause, nor whether those investigations bore any fruit in terms of arrest or conviction. Thus, we agree with Appellant Detective Kreller's testimony was clearly outside the scope permitted the trial court's pretrial orders.
Nevertheless, "[t]here no per se rule requiring new trial every time there reference prior criminal activity." v. Sanchez, 595 A.2d (Pa. Super. 1991). For instance, in Sanchez, the prosecutor made repeated references defendant's status as an illegal alien in on drug charges. We held that "the jury could reasonably infer Sanchez had engaged illegal conduct the past" from those statements, thus Sanchez's objection was warranted. Id. Nevertheless, found error harmless, because "the evidence guilt [was] overwhelming[,]" "the isolated reference to Sanchez an illegal alien [was] totally inconsequential." at 622.
Here, contends Detective Kreller's referencing of prior criminal investigation reversible error, should have resulted mistrial, particularly since matter had been subject of multiple pretrial rulings both the defense's prosecution's motions limine. Appellant's Brief at 65-67. Appellant analyzes only one case support
-41- his argument, v. Padilla, 923 A.2d 1189 (Pa. Super. 2007).
In Padilla, the defendant, years old at the time of his crime, was convicted of committing sexual offenses against a 15-year-old.7 Prior to trial, Padilla filed a motion limine "to preclude evidence of prior incarceration and parole status, the issuance a PFA order against him, and his use marijuana." at 1192. Nevertheless, "in response open- ended question about what found when he arrived at the scene[,]" police officer testified follows:
When I got there I found-I met at the door mother who was very upset, yelling and carrying on, practically mad at me, but she started tell me how everybody downstairs. She went picked up this guy [Appellant]. He's a family friend. Apparently he just got out of jail, so she was doing him favor.
Id.
The defense immediately objected requested mistrial, and although the trial court initially appeared inclined grant it, instead issued curative instruction put off declaring mistrial until following day, affording the parties the opportunity to seek case authority supporting their positions. After arguments were heard the following morning, trial court ultimately denied the motion mistrial. victim admitted sexual relations were consensual; however, age gap between the two permit legal recognition of her consent.
-42- On appeal, we reversed, determining that the officer's statement was clearly prejudicial because the trial court had entered "explicit order that no reference whatsoever must be made to [Appellant's] time in jail." Id. at 1193. The Padilla Court went on to determine whether that prejudice was cured by the instruction, determined that it not:
Based on our review of the trial transcript, we find the circumstances surrounding the court's ruling to troubling and the instruction itself too vague to have cured the prejudice. The trial court had granted [Padilla's] motion in limine and, upon violation its order, agreed to a mistrial. Pressed by the prosecutor, however, the trial court instead opted to give cautionary instruction await further argument. The record suggests that the jury may have heard the side bar conference during which the trial court reversed itself. Moreover, the trial court's instruction specifically direct the jury to disregard Officer Bealer's remark, "Apparently just got out of jail." instruction, Then, despite the the prosecutor resumed his examination of Officer Bealer repeating the officer's testimony that "Mom upset," thereby allowing the jury to hear again testimony the trial court had just instructed them to disregard. purpose pretrial motion limine is prevent prejudicial evidence from reaching the jury, based on the theory "once the 'skunk box,' the odor is ineradicable." Given circumstances this case, conclude only remedy available remove the prejudice [Padilla] was trial court to declare mistrial relist case for before different jury. Because trial court failed to employ this remedy dissipate the prejudice accrued to [Padilla] result trial court's ruling regarding Officer Bealer's testimony, [Padilla] entitled new trial. at 1196 (emphasis added).
As noted above, Appellant focuses argument fact motions limine this case had precluded any other prior -bad -acts evidence. To extent contends the existence of those
-43- pretrial rulings a significant factor our analysis of the resulting prejudice from Detective Kreller's testimony, we agree Padilla stands that proposition. However, the extent implies by his argument the only factor we should or can consider, we disagree.
The Padilla Court's prejudice analysis not limited the fact that a pretrial ruling had precluded the at -issue testimony. The Court also considered the jury had overheard the side bar conference addressing the matter, the inadequacy of the curative instruction issued, subsequent questioning the prosecutor. As such, while important, existence of relevant pretrial order prohibiting prejudicial remarks which subsequently occurred at trial does not automatically preclude determination that error harmless.
Indeed, v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008), defendant filed, court granted, "a motion limine seeking preclusion of any evidence of [his] prior convictions." Nevertheless, at trial, witness testified defendant "had go see parole officer or probation officer." Following objection, trial court immediately issued curative instruction. On appeal, this Court held that:
Based upon this record, conclude that [the] testimony regarding Hudson's probation or parole officer was inadvertent, even when viewed light of Hudson's motion limine. prosecutor ask question could elicit evidence of have been reasonably foreseen [the] Hudson's prior criminal activities. Furthermore, testimony constituted mere passing reference to Hudson's prior criminal activity that court's cautionary instruction adequately cured. Judge Johnson instructed the jury disregard not only clearly testimony when deliberating on verdict, also expressly instructed them they had no basis upon which determine whether testimony itself was true. light of the substantial circumstantial When viewed in evidence presented by the Commonwealth at trial indicating Hudson's guilt, conclude Hudson did not suffer improper prejudice from this reference prior criminal activity. at 1035.
We find this case distinguishable from Padilla the facts, and more line with our decision Hudson. pretrial motions in this case constitute an absolute ban on prior -bad -acts evidence, unlike Padilla, where there was absolute specific bar to any mention Padilla's prior incarceration. Here, pretrial motions permitted some, but In Padilla, the officer directly not all, of the defendants' prior bad acts. mentioned Padilla's prior incarceration. In this case, however, Detective Kreller mentioned "probable cause," thus alluding prior investigation, but not necessarily prior conviction, or even charges prior criminal misconduct, none defendants were specified Detective Kreller's remarks.
Furthermore, because other prior -bad -acts evidence was deemed admissible this case, any additional prejudice resulting from Detective Kreller's remarks necessarily minimal comparison. See v. Fell, 309 A.2d (Pa. 1973) (holding prejudice from erroneously admitted evidence harmless where it was cumulative
-45- properly admitted evidence). While substantial evidence and testimony was heard regarding the other prior -bad -acts evidence in this case over the course of two-week trial, Detective Kreller's objectionable remarks were relatively brief inconsequential. No comparable circumstances existed Padilla.
Moreover, unlike what occurred in Padilla, there no indication that jury in this case overheard counsel's arguments regarding Detective Kreller's statements. While trial court in this case did admonish the prosecutor for failing adhere terms pretrial orders, the court did not vacillate between granting denying the motion mistrial.
Here, Hudson, there does not appear any deliberate attempt by the prosecutor elicit the at -issue remarks by Detective Kreller. Indeed, Appellant's brief, makes no attempt to claim the remarks were elicited. Moreover, because neither Appellant nor his co-defendants immediately objected Detective Kreller's remarks, but instead at end testimony (which occur soon thereafter), jury's attention was unlikely to have been drawn them.
Finally, the evidence presented the Commonwealth this case was overwhelming uncontroverted. GPS historical cell phone data evidence, alone, compelling evidence of the defendants' guilt. The prior -bad -acts evidence, conjunction with the evidence demonstrating a common modus operandi for each burglary, demonstrated Appellant long-term, sophisticated conspiracy to and his cohorts engaged
-46- burglarize multiple gas stations similar establishments. Accordingly, for these reasons, conclude Detective Kreller's remarks were also harmless error, and/or they were not "of such nature [their] unavoidable effect [was] deprive [A]ppellant fair trial." Crawley, 526 A.2d at 342.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 8/1/2017
-47-