Com. v. Dunbar, B. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BARSHAY REQWAN DUNBAR, :
:
Appellant. : No. 481 WDA 2018
Appeal from the Judgment of Sentence, January 2, 2018,
in the Court of Common Pleas of Cambria County,
Criminal Division at No(s): CP-11-CR-0000100-2017.
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY KUNSELMAN, J.: FILED MARCH 29, 2019
Barshay Dunbar appeals from his judgment of sentence after a jury
convicted him of two counts of trafficking in individuals, five counts each of
promoting prostitution, criminal use of a communication facility, and three
counts of possession with intent to deliver a controlled substance.1 The court
sentenced Dunbar to 13 to 26 years in prison. On appeal, Dunbar presents a
variety of legal challenges. After careful review, we affirm.
The trial court aptly summarized the relevant facts as follows:
On October 28, 2016, the Cambria County’s Department
of Emergency Services (“Dispatch”) received a call from
Dianna Jones, Manager (“Manager”), Super 8 Motel
(“Motel”), 627 Solomon Road, Johnstown, [Pennsylvania].
She asked for a Richland Police officer to return her call, and
Officer [Scott] Conahan called her. She told Officer
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118 Pa.C.S.A. §§ 3011(a)(1) & (2); 5902(b)(1), (3), (4), (5) & (8); 7512(a),
35 P.S. §§ 780-113(A)(30) & (16).
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Conahan that she believed a prostitution ring was being
operated out of Room 307 and directed him to
Backpage.com where the services were being advertised.
Officer Conahan visited the website and confirmed what the
Manager had told him. The advertisement contained photos
of several females, one of which appeared to be a minor.
Officer Conahan apprised [Sergeant Jerry] Martin of the
situation. Concerned with the age of one of the females,
Sergeant Martin, Officer Conahan, and Detective [Brett]
Hinterliter went to the Motel to investigate. At the Motel,
the Manager pointed out individuals getting into a vehicle
and starting to drive away as the parties she believed to be
involved in the prostitution ring. Officers were able to stop
the vehicle before it left the Motel’s parking lot. There were
three occupants in the vehicle: [Dunbar] was in the
passenger seat; Tiffany Simms (“Simms”) was driving; and
Autumn Yocum (“Yocum”) was in the back seat.
Sergeant Martin asked Yocum to exit the vehicle and
directed her to the back of the car so [he] could talk to her.
Sergeant Martin informed Yocum that they were
investigating a potential prostitution ring. Yocum then
admitted that she and Simms were prostituting themselves,
and that [Dunbar] was responsible for [setting] the
appointments, the services to be performed and the prices
to charge. As Sergeant Martin approached Detective
Hinterliter to relay what he had learned from Yocum,
[Detective] Hinterliter told him that he saw a pack of
Newport cigarettes thrown out of the car window prior to
the car coming to a stop. He retrieved the pack of cigarettes
and when he opened it, he found a bundle of heroin.
[Dunbar] was arrested, and the parties were transported to
the police station for questioning. Prior to transportation,
however, Sergeant Martin saw several cell phones in the
vehicle. Simms told Sergeant Martin the cell phones
belonged to [Dunbar].
Trial Court Opinion, 7/10/18, at 2-3 (footnotes omitted). Upon further
investigation, Dunbar was charged with the aforementioned offenses.
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After a two-day jury trial, Dunbar was found guilty on all charges. On
January 2, 2018, the trial court sentenced Dunbar to an aggregate sentence
of 13-26 years’ incarceration.
Dunbar filed post-trial motions which the trial court denied. This timely
appeal follows. Both Dunbar and the trial court have complied with Pa.R.A.P.
1925.
Dunbar raises seven issues for our review. We have reordered them for
ease of disposition:
1. The trial court erred in denying Dunbar’s post-sentence
motion for acquittal regarding the human trafficking
charges, as the jury’s guilty verdicts on these counts were
against the weight and sufficiency of the evidence presented
by the Commonwealth at trial.
2. The trial court erred in denying Dunbar’s post-sentence
motion for acquittal regarding the prostitution charges, as
the jury’s guilty verdicts on these counts was against the
weight and sufficiency of the evidence presented by the
Commonwealth at trial.
3. The trial court erred in denying Dunbar’s post-sentence
motion for acquittal regarding the drug charges, as the
jury’s guilty verdicts on these counts was against the weight
and sufficiency of the evidence presented by the
Commonwealth at trial.
4. The trial court erred in denying Dunbar’s pre-trial motion
to suppress evidence in regards to the illegal drug
contraband.
5. The trial court erred in denying Dunbar’s pre-trial motion
to quash the two human trafficking charges, since the trial
court previously dismissed two involuntary servitude counts
through the grand of Habeas Corpus relief; involuntary
servitude is an element of human trafficking; therefore,
since the involuntary servitude counts were dismissed,
Dunbar could not be convicted of human trafficking.
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6. The trial court erred in denying Dunbar’s motion for a new
trial on the basis that the court erred in admitting the
introduction through the Commonwealth’s digital forensics
expert of a number of text messages originating from
Dunbar’s cell phone as the introduction of said text
messages was unauthenticated, extremely prejudicial
hearsay, and were entered in violation of this Court’s
decision in Commonwealth v. Koch, 39 A.3d 996 (2011).
7. The trial court abused its discretion by sentencing Dunbar
to a sentence that was excessive.
See Dunbar’s Brief at 7-8.
Before reaching the merits of Dunbar’s claims, preliminarily we will
address whether any of Dunbar’s issues have been waived for failing to comply
with Pa.R.A.P. 1925. We begin by examining Dunbar’s sufficiency claims. This
Court has held that in order for an appellant to preserve a sufficiency claim,
the 1925(b) statement must “specify the element or elements upon which the
evidence was insufficient.” Commonwealth v. Williams, 959 A.2d 1252, at
1257 (Pa. Super. 2008).
Here, Dunbar’s 1925(b) statement merely provides that “the jury’s
guilty verdicts on [the human trafficking charges] were against the weight and
the sufficiency of the evidence.” Dunbar’s 1925(b) Statement, 3/28/18, at 1.
His other two sufficiency claims regarding the prostitution and drug charges
follow this same format. On all three of these issues, Dunbar never states
which specific element(s) he believes the evidence failed to establish. As
noted above, the 1925(b) statement must demonstrate which element or
elements the Commonwealth failed to prove. See id. Dunbar’s statement
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does not meet this threshold of specificity. Therefore, all of his sufficiency
claims are waived.
We next examine whether Dunbar has waived issues four and five,
relating to his pretrial motions. Dunbar raised these issues in a supplemental
statement of matters complained of on appeal. Rule 1925(b) permits the filing
of a supplemental statement in two limited circumstances. First, Rule
1925(b)(2) provides that, “[u]pon application of the appellant and for good
cause shown, the judge may enlarge the time period initially specified or
permit an amended or supplemental Statement to be filed.” Pa.R.A.P.
1925(b)(2) (emphasis added). Second, the Rule also provides, “[i]n
extraordinary circumstances, the judge may allow for the filing of a Statement
or amended or supplemental Statement nunc pro tunc.” Pa.R.A.P.
1925(b)(2).
Here, there is nothing of record indicating Dunbar ever requested leave
from the trial court to file his supplemental statement. Additionally, we note
the trial court opinion does not address either of these issues, suggesting that
it considered these claims waived. Where an appellant files a supplemental
Pa.R.A.P. 1925(b) concise statement without petitioning the court for
permission to file such a statement, the additional issues raised in the
secondary statement are waived. See Commonwealth v. Woods, 909 A.2d
372, 376 (Pa. Super. 2006).
We agree with the trial court’s refusal to address these claims. Because
Dunbar did not comply with Rule 1925(b) in filing his supplemental statement,
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his two pre-trial issues are not properly before us and are waived.
Accordingly, we may not address them. See Commonwealth v. Lord, 719
A.2d 306 (Pa. 1998).
We will now address the merits of Dunbar’s remaining claims which he
has properly preserved. We begin by considering Dunbar’s challenges in
issues one, two, and three, to the weight of the evidence supporting his
convictions for the human trafficking, prostitution, and drug charges. Our
standard of review for a weight of the evidence claim is as follows:
Appellate review of a weight claim is a review of the exercise
of discretion, not of the underlying question of whether the
verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the
trial judge when reviewing a trial court’s determination that
the verdict is against the weight of the evidence. One of the
least assailable reasons for granting or denying a new trial
is the lower court’s conviction that the verdict was or was
not against the weight of the evidence and that a new trial
should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citations omitted).
Additionally, this Court has summarized:
The determination of the weight of the evidence exclusively
is within the province of the fact-finder, who may believe
all, part, or none of the evidence. A new trial should be
awarded when the jury’s verdict is so contrary to the
evidence as to shock one’s sense of justice and the award
of a new trial is imperative so that right may be given
another opportunity to prevail. In this regard, the evidence
must be so tenuous, vague and uncertain that the verdict
shocks the conscience of the court.
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Commonwealth v. Ross, 856 A.2d 93, 99 (Pa. Super. 2004) (citations
omitted).
The trial court found no merit to Dunbar’s weight claims. See Trial Court
Opinion, 7/10/18, at 6. In doing so, the trial court summarized both Simms’
and Sergeant Martin’s testimony, and stated that “after hearing all the
evidence which [the jury is] free to believe (all, part, or none), [it] found the
Commonwealth’s evidence credible and returned a guilty verdict…” Id. at 8.
The court concluded that “because he jury’s verdict was not so contrary to the
evidence presented, the verdict does not shock one’s sense of justice.” Id.
We agree.
In finding Dunbar guilty of these charges, the jury clearly believed the
Commonwealth’s testimonial evidence. The Commonwealth presented a
multitude of testimony which included two law enforcement officers, an expert
witness, two hotel management personnel and Simms, one of the two victims.
All of these witnesses presented a breadth of information that supported the
charges against Dunbar. Therefore, our review of the record reveals that the
jury’s verdict does not run so contrary to the evidence that it shocks one sense
of justice.
We further note that Dunbar’s arguments pertaining to the weight of the
evidence actually relate to the sufficiency of the evidence. All three of
Dunbar’s weight claims focus generally on evidence absent from the record,
which he contends the Commonwealth needed to present to establish his
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guilt.2 After reviewing the evidentiary record, we conclude that the evidence
presented supports the trial court’s conclusion that the evidence presented
was not “tenuous, vague and uncertain.” See Ross supra. The trial court
did not abuse its discretion in denying Dunbar’s post-trial motion for acquittal.
Dunbar’s weight claim is without merit.
We next consider Dunbar’s sixth issue which challenges to the admission
of text message evidence introduced at trial. He advances two theories. First,
Dunbar alleges that the text messages were inadmissible hearsay. Second,
he argues the Commonwealth did not properly authenticate the texts.
Before examining the merits of Dunbar’s claims, we must first determine
whether he properly preserved both of these issues for appellate review. “In
order to preserve an issue for review, a party must make a timely, specific
objection.” Commonwealth v. Brown, 832 A.2d 1132, 1136 (Pa. Super.
2003). If counsel fails to preserve an issue by specific objection, then the
issue is waived. See Commonwealth v. Stetler, 95 A.3d 864, 869 (Pa.
Super. 2013).
The trial court concluded that Dunbar waived the argument that his texts
were inadmissible hearsay, because he incorrectly stated the grounds for his
objection. The trial court explained that:
. . . when the Commonwealth asked Expert [Glenn] Bard if
the text messages were retrieved from [Dunbar’s]
cellphones, [Dunbar’s] counsel lodged a timely objection.
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2Although Dunbar makes general allegations of missing evidence, he does not
make specific claims of insufficiency. See supra.
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When probed for the grounds of the objection, Counsel
stated: “Your Honor, I am raising a hearsay objection, more
specifically authentication.” When asked for clarity on his
objection (indicating that authenticity and hearsay were
distinct objections and needed to be addressed separately)
Counsel explained that the basis for the objection was that
it was hearsay because “we cannot prove who sent them.”
Counsel then added that the expert could testify that the
text messages were sent from [Dunbar’s] cellphones, but
not that [Dunbar] sent them.
From this exchange two things become evident. First,
based on Counsel’s argument, it becomes clear that
Counsel’s challenge was to the authenticity of the evidence.
His objection was based on the authorship of the texts, i.e.
“could not be established who sent them.” Moreover, he
conceded that the expert could testify that the texts
originated from [Dunbar’s] phone, but he could not testify
that [Dunbar] authored the texts, which is precisely what
[the expert] testified to and abstained from respectively
[sic]. Second, after being asked to clarify the grounds for
his objection, Counsel abandoned whatever hearsay
objection he had raised and focused his objection on the
authenticity of the texts. Absent from Counsel’s argument
was that text messages were out of court statements being
offered for the truth of the matter asserted.
Trial Court’s Opinion, 7/10/18, at 9-10 (citations omitted). We agree with the
trial court.
Our review of the record supports the court’s description of the
discussion that ensued after Dunbar’s counsel lodged his objection. There is
no indication in the colloquy that Dunbar’s counsel was challenging anything
but the authorship of the text messages. Counsel stated that “[the expert
witness] can prove messages were sent from that phone, but he—he cannot
prove that my client is the individual that actually sent them and that is my
objection.” N.T., 10/25/17, at 39. Dunbar’s counsel never hinted that he took
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issue with the text messages because they were out of court statements
offered to prove the truth of the matter they were asserting, i.e. hearsay.
Instead, the grounds of the objection solely related to the authorship of the
texts. As such, we conclude that Dunbar has waived his hearsay challenge,
but preserved his authentication objection.
Next, we determine whether the trial court erred in admitting text
messages that Dunbar claims were not properly authenticated. Admission of
evidence is within the sound discretion of the trial court and will be reversed
only upon a showing that the trial court clearly abused its discretion.
Commonwealth v. Mosley, 114 A.3d 1072, 1081 (Pa. Super. 2015). An
“[a]buse of discretion is not merely an error of judgment, but rather where
the judgment is manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality, prejudice, bias
or ill will.” Commonwealth . Bond, 190 A.3d 664, 667 (Pa. Super. 2018).
Pennsylvania Rule of Evidence 901 provides that the proponent of an
item of evidence must introduce sufficient evidence that the matter is what
the proponent purports it to be. Pa.R.E. 901(a). Authentication is required
prior to the admission such evidence. Dunbar insists no evidence showed he
authored the text messages and that the trial court’s decision to admit them
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violated this Court’s decision in Commonwealth v. Koch, 39 A.3d 996, 1005
(Pa. Super. 2011) .3
In Koch I, this Court held that “authentication of electronic
communications, like documents, requires more than mere confirmation that
the number or address belonged to a particular person.” Id. at 1005. Because
a cellular phone may not necessarily be used exclusively by the person to
whom the phone number is assigned, “circumstantial evidence, which tends
to corroborate the identity of the sender, is required.” Id.The principles set forth in Koch do not create a bright line test, rather,
authentication must be determined on a case-by-case basis. Id. at 1106. The
circumstances in Koch are distinct from the facts at bar. In Koch, the
Commonwealth conceded that the defendant did not author some of the text
messages at issue. Further, the Commonwealth proffered no evidence to
substantiate that Koch wrote the incriminating messages, and did not produce
testimony from people who sent or received any of the texts. Id.Here, the trial court determined that the Commonwealth properly
authenticated Dunbar’s text messages because corroborating evidence was
introduced showing he “was in the vehicle where the phones were found, he
had exclusive access to the cellphones, he was the owner of the phones, and
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3 In reviewing this Court’s decision in Koch, our Supreme Court agreed with
the analysis that authentication of text messages absent direct evidence,
requires some degree of circumstantial evidence indicating authorship. The
Supreme Court held that the trial court did not abuse its discretion in finding
that the Commonwealth met its authentication burden in Koch. See
Commonwealth v. Koch, 106 A.3d 705 (Pa. 2014).
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he communicated with other participants and potential clients, to arrange the
transactions charged herein.” Trial Court Opinion, 7/10/2018, at 11-12.
Initially, we observe “[a]uthentication generally entails a relatively low
burden of proof.” Commonwealth v. Koch, 106 A.3d 705, 713 (Pa. 2014)
(“Koch II”). The trial court determined the Commonwealth satisfied this
burden. For example, Simms testified that Dunbar used his phone to
perpetuate the criminal activity for which Dunbar was charged, such as,
arranging the meetings between her and her clients. N.T., 10/24/2017, at
129. An expert witness also testified that Dunbar was the registered user of
the phone and that the email address, barshaydunbar00@gmail.com, was
connected to it. N.T., 10/25/2017, at 34. The expert further testified that
the majority of the texts from Dunbar’s phone were being sent to and received
from Simms’ cellular phone number. Id. at 36. For these reasons, we
conclude that the trial court did not did not abuse its discretion in determining
the Commonwealth met its authentication burden and subsequently admitting
the texts into evidence.
Lastly, we consider Dunbar’s seventh issue which challenges to the
discretionary aspects of his sentence. Dunbar asserts his sentence is
excessive, despite the fact his sentence falls within the statutory guidelines.
“Challenges to the discretionary aspects of sentencing do not entitle a
petitioner to review as of right.” Commonwealth v. Swope, 123 A.3d 333,
337 (Pa.Super.2015)(citation omitted). To invoke our jurisdiction, we must
determine if Dunbar has met the following four criteria:
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(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or
in a motion to reconsider and modify sentence; (3) whether
appellant’s brief has a fatal defect; and (4) whether there is
a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code.
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(citations omitted).
Dunbar has complied with the first three requirements. Dunbar filed a
motion for modification of his sentence, he timely appealed, and his brief
contains a statement of reasons relied upon for his challenge to the
discretionary aspects of his sentence as required by Pa.R.A.P. 2119(f). Thus,
we need only decide the fourth prong of the test.
As to whether Dunbar’s claim presents a substantial question, he avers
that the sentence was excessive because the trial court “failed to consider that
[he] was gainfully employed prior to his conviction, and that he has several
minor children.” Dunbar’s Brief at 16. Dunbar additionally notes “that his prior
serious offense occurred years prior” to the current convictions.” Id.We determine the existence of a substantial question on a case-by-case
basis. Swope, 123 A.3d at 338. An appellant raises a substantial question
when he “advances a colorable argument that the sentencing judge’s actions
were either: (1) inconsistent with a specific provision of the Sentencing Code;
or (2) contrary to the fundamental norms which underlie the sentencing
process. Id.
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This Court has held that “an excessive sentence claim—in conjunction
with an assertion that the court failed to consider mitigating factors—raises a
substantial question.” Id. at 339 (citation omitted). Thus, we conclude that
Dunbar has raised a substantial question for our review, and proceed to
address the merits of his claim.
The following principles apply to our substantive review of Dunbar’s
claim. “When reviewing sentencing matters, this Court must accord the
sentencing court great weight as it is in the best position to view the
defendant’s character, displays of remorse, defiance or indifference and the
overall effect and nature of the crime.” Commonwealth v. Ventura, 975
A.2d 1128, 1134 (Pa. Super. 2009). We cannot re-weigh the sentencing
factors and impose our judgment in the place of the sentencing court.”
Commonwealth v. Macias, 968 A.2d 773, 778 (Pa. Super. 2009). Rather,
we review the trial court’s determination for an abuse of discretion. Id.[A]n abuse of discretion is not shown merely by an error in
judgment. Rather, the appellant must establish, by
reference to the record, that the sentencing court ignored
or misapplied the law, exercised its judgment for reasons of
partiality, prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Antidormi, 84 A.3d 736, 760 (Pa. Super. 2014).
A trial court’s sentence “should call for confinement that is consistent
with the protection of the public, the gravity of the offense as it relates to the
impact on the life of the victim and on the community, and the rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). “When imposing sentence,
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a court is required to consider the particular circumstances of the offense and
the character of the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal characteristics
and potential for rehabilitation.” Antidormi, 84 A.3d at 761 (citations and
quotation marks omitted).
Dunbar’s claim that the trial court failed to consider mitigating factors is
belied by the record. “Where the sentencing court had the benefit of a
presentence investigation report (“PSI”), we can assume the sentencing court
was aware of relevant information regarding the defendant's character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010). The court
held a sentencing hearing after it ordered and reviewed a presentence
investigation. Further, the transcript reveals that Dunbar testified to the court
that he had a job and children, and had not been in trouble with the law for
approximately ten years. See N.T. Sentencing, 6/22/18, at 5-6. Before
announcing his sentence the court stated that:
I’ve taken into consideration the verdict of the jury. I’ve
taken into consideration your presentence investigation.
I’ve taken into consideration the statements what were
made in court today, the sentencing code, and the
sentencing guidelines.
Id. at 9.
Additionally, the trial court indicated that there was a public interest in
protecting the community from drugs and protecting women from the type of
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treatment Dunbar facilitated through his prostitution ring. See id. at 9-10.
The Court explained in its 1925(a) opinion that “in weighing [the
aforementioned factors], this [c]ourt sought to impose a sentence that
balanced society’s needs while seeking to impose an appropriate sentence
upon [Dunbar]. Trial Court Opinion, 7/10/18, at 4.
Although the trial court did not engage in a lengthy discourse, it
appropriately stated the facts and considerations it accounted for in imposing
Dunbar’s sentence. Based upon the foregoing, we discern no abuse of the
trial court’s discretion.
In sum, because Dunbar has failed to preserve many of the issues he
raises on appeal and those he did preserve are meritless, he is entitled to no
relief. For the reasons above, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/29/2019
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