Com. v. Moody, C. ( 2022 )

J-S24040-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
COREY MOODY :
:
Appellant : No. 1251 EDA 2020
Appeal from the Judgment of Sentence Entered January 10, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004828-2018
BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 8, 2022
Corey Moody (Moody) appeals1 from the January 10, 2020 judgment of
sentence imposed by the Court of Common Pleas of Philadelphia County (trial
court) following his convictions for aggravated assault, possessing an
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* Retired Senior Judge assigned to the Superior Court.
1 Counsel has filed what is essentially a hybrid between a merits and Anders
brief, arguing for relief on one claim and contending that other issues raised
by prior counsel are meritless. See Anders v. California, 386 U.S. 738(1967). This Court has previously recognized that such a brief is improper
and that appellate counsel should only brief issues he or she believes to be
non-frivolous. Commonwealth v. Morrison, 173 A.3d 286, 293 (Pa. Super.
2017). If the defendant disagrees with counsel’s assessment, he or she may
challenge appellate counsel’s effectiveness through the Post-Conviction Relief
Act. Id. (citing 42 Pa.C.S. §§ 9541 et seq.). Accordingly, we only address
the issue which counsel has briefed on the merits. See id.
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instrument of crime, simple assault and recklessly endangering another
person.2 We affirm.
The trial court summarized the relevant facts of the case:
Kacim Bey, hereinafter referred to as “Complainant,” testified as
follows. On May 22, 2018, between 6:00 p.m. and 6:30 p.m.,
Complainant was walking to his house in Philadelphia on 8th
Street and Indiana Avenue with his cousin, Devin Jackson. When
Complainant reached the 2900 block of 8th Street, he felt
someone grab him around the neck and begin slicing him with a
sharp object. Complainant was struck on his right ear, the left
side of his face, the front of his forehead, and his hand after he
attempted to push his assailant away from him. He felt blood
running down his face as a result of his injuries.
Complainant identified [Moody] as the individual who attacked
him. [Moody] ran away toward Cambria Street after stabbing
Complainant. Complainant ran toward his car, where he was
spotted by his mother, girlfriend, and his cousin’s girlfriend, and
then driven to Temple University Hospital. Complainant was
treated at the hospital for three to four hours, receiving staples
on his head and approximately thirty-five to forty stitches on other
parts of his body. Complainant continued to suffer headaches,
small migraines, and numbness in his pinky finger after he was
released from the hospital.
Complainant testified that he had known [Moody] for
approximately seven years prior to this incident. He later clarified
that he knew [Moody] from his childhood and had last seen him
thirteen years ago, when he was twelve years old. Complainant
stated the last time he had a conversation with [Moody] was a
couple weeks before the stabbing. When Complainant was asked
about why he was attacked, he stated that it had something to do
with his brother, Joseph Bey, who had been targeted in a shooting
approximately two years earlier. Complainant had previously
picked his brother up from the police station after his brother had
given a statement to police about this shooting.
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2 18 Pa.C.S. §§ 2702(a), 907(a), 2701(a) & 2705.
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Complainant said that some of the people involved in the shooting,
including [Moody], had sent threats to his brother after he talked
to police. Additionally, about a month or two before Complainant
was stabbed, Complainant stated that his brother was involved in
a physical altercation with one of the individuals sending threats.
Because Complainant’s brother moved away after this altercation,
Complainant believed he was targeted instead. [Moody’s] counsel
objected to Complainant’s testimony about his brother, arguing it
was hearsay. The Commonwealth argued that the testimony was
being offered to explain “why what transpired, transpired.” This
Court overruled the objection, stating the testimony was not being
offered for its truth. This Court then asked Complainant several
questions to establish that his testimony was based off direct
knowledge that his brother had given a statement to police.
Complainant was then shown two Instagram posts containing
portions of his brother’s statement to police. The first post
included Complainant’s brother’s name, Joseph Bey, and text of
Joseph Bey giving information about his friends. The second post
showed Joseph Bey’s statement with the message “niggas want
war, but they rats” at the bottom. Complainant testified that he
first saw these Instagram posts sometime after November 15,
2017, when Complainant returned home from serving a sentence
in state prison. Complainant admitted that he had previously been
convicted of theft, unlawful taking, receiving stolen property, and
unauthorized use of a motor vehicle and been sentenced to
confinement by this Court. Complainant additionally stated that
he was on parole at the time of his testimony, and that he had an
open criminal case on the date he was stabbed.
Complainant testified that approximately two weeks after the
stabbing incident, a former friend of his brother, Carl Walker,
came to Complainant’s house. He was accompanied by another
person, Khalid Jackson, who Complainant knew as Lil’ Boozy.
Walker told Complainant that [Moody] had not committed the
stabbing. Nonetheless, Complainant participated in a police photo
array in which he identified [Moody] as the individual who stabbed
him. Complainant additionally signed a document identifying
[Moody] in which he wrote that it was him “one hundred percent.”
Complainant had seen [Moody] earlier on the day of the stabbing
with Carl Walker, Khalid Jackson, and Richard Green, but
recognized that [Moody] was who had stabbed him because he
was bigger than the other men and Complainant also saw his face
from the side after he was stabbed.
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Trial Court Opinion, 12/1/21, at 2-4 (citations omitted).3
Moody proceeded to a non-jury trial and was found guilty of the above-
mentioned offenses.4 The trial court sentenced him to an aggregate of 12.5
to 25 years of incarceration. Moody filed a post-sentence motion which was
denied by operation of law. He timely appealed and he and the trial court
have complied with Pa. R.A.P. 1925.
Moody raises one issue on appeal: whether the trial court abused its
discretion in admitting the Instagram posts into evidence because they had
not been authenticated pursuant to Pa. R.E. 901 and the Commonwealth did
not establish a link between Moody and the posts. 5 He argues that while the
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3 Deficiencies in the certified record have hampered our review in this case.
Only Kacim Bey’s testimony was transcribed and transmitted to this Court.
Even though Moody’s sole argument on appeal relates to the admissibility of
Instagram posts, those posts are also not contained in the certified record.
“Our law is unequivocal that the responsibility rests upon the appellant to
ensure that the record certified on appeal is complete in the sense that it
contains all of the materials necessary for the reviewing court to perform its
duty.” Commonwealth v. Holston, 211 A.3d 1264, 1276 (Pa. Super. 2019)
(citation omitted). We could deem Moody’s claim waived on this basis. Id.
at 1277. However, because the descriptions of the Instagram posts in the
notes of testimony are undisputed and Bey’s testimony provides sufficient
information for our review, we decline to find waiver.
4 The trial court found Moody not guilty of criminal attempt—homicide and
retaliation against a witness. 18 Pa.C.S. §§ 2502, 4953(a).
5 “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. Murray, 174 A.3d 1147, 1156 (Pa. Super.
2017) (citation omitted).
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victim testified that he had personally viewed the posts and knew that they
contained Joseph Bey’s statement to police, the Commonwealth did not
produce any evidence related to the author of the posts or the name of the
account from which they were posted. He contends that there was no
evidence to suggest that Moody authored the Instagram posts so they could
not be used to establish Moody’s motive for the attack. Finally, he argues that
this error was prejudicial because they portrayed Moody as a violent person.6
“Unless stipulated, to satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the proponent claims it is.”
Pa. R.E. 901(a). A witness may authenticate evidence through “[t]estimony
that an item is what it is claimed to be.” Pa. R.E. 901(b)(1). As Moody
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6 The Commonwealth contends that this argument is waived because Moody
did not object to the introduction of the Instagram posts at trial.
Commonwealth’s Brief at 8-9. We disagree. Moody objected to testimony
regarding the victim’s brother when the Commonwealth first broached the
subject at trial. Notes of Testimony, 1/14/19, at 17. The ensuing discussion
between counsel and the trial court referenced the Instagram posts and the
Commonwealth stated it did not know the author of the posts. In allowing the
evidence, the trial court stated, “I think that he can testify to the Instagram
post. That doesn’t mean that the defendant posted it or that they can show
that he posted it, but we can proceed from there.” Id. at 18. Additionally,
the trial court thoroughly addressed the authentication issue in its opinion
pursuant to Pa. R.A.P. 1925(a). While the objection could have been more
clearly stated on the record, the trial court understood the grounds for the
objection and was able to consider the argument in the first instance.
Accordingly, we proceed to consider the merits of the claim.
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recognizes, our case law regarding authentication of social media posts and
electronic messages focuses on establishing authorship of such evidence:
Initially, authentication [of] social media evidence is to be
evaluated on a case-by-case basis to determine whether or not
there has been an adequate foundational showing of its relevance
and authenticity. Additionally, the proponent of social media
evidence must present direct or circumstantial evidence that tends
to corroborate the identity of the author of the communication in
question, such as testimony from the person who sent or received
the communication, or contextual clues in the communication
tending to reveal the identity of the sender.
Commonwealth v. Danzey, 210 A.3d 333, 338 (Pa. Super. 2019) (quoting
Commonwealth v. Mangel, 181 A.3d 1154, 1162 (Pa. Super. 2018)
(citations omitted)). However, authentication pursuant to Pa.R.E. 901(a)
“generally entails a relatively low burden of proof.” Commonwealth v.
Murray, 174 A.3d 1147, 1157 (Pa. Super. 2017) (citation omitted).
In Danzey and Mangel, the Commonwealth contended that the
defendant had written the electronic messages and needed to adduce
sufficient direct or circumstantial evidence to establish authorship. Danzey,
supra; see also Pa.R.E. 901(b)(11), cmt (“The rule illustrates the manner in
which digital evidence may be attributed to the author.”).7 The
Commonwealth was required to authenticate the authorship of the messages
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7 Rule 901(b)(11) was added to Rule 901 after Moody’s trial and was effective
October 1, 2020. We have previously held that the newly-amended rule is
consistent with prior case law, including Mangel, and our disposition here
remains the same even without applying the amended Rule. Commonwealth
v. Orr, 255 A.3d 589, 601 n.3 (Pa. Super. 2021).
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because it sought to introduce the messages as substantive evidence of the
defendants’ guilt. Danzey, supra, at 336 (introducing the defendant’s social
media posts deriding and threatening the victim as evidence in prosecution
for stalking and harassment); Mangel, supra, at 1156-57 (seeking to
introduce social media posts bragging about physical altercation in prosecution
of defendant for aggravated assault, simple assault and harassment).
While Moody focuses his argument on Mangel and other cases related
to establishing authorship of electronic messages or social media posts, those
cases are inapposite here because the Commonwealth did not seek to prove
that Moody had authored the Instagram posts. Rather, the Commonwealth
introduced the messages to show why the victim believed he had been subject
to a retaliatory attack after his brother provided information to the police. The
victim’s belief about the motive for the attack was relevant to the subsequent
investigation and the charge of retaliation against a witness for which Moody
was acquitted.
As the proponent of the evidence, the Commonwealth was required to
provide “evidence sufficient to support a finding that the item is what the
proponent claims it is,” and was permitted to do so through “[t]estimony that
[the] item [was] what it [was] claimed to be.” Pa.R.E. 901(a), (b)(1). The
Commonwealth claimed only that the Instagram posts depicted Joseph Bey’s
statement to police and, in conjunction with the caption “niggas want war, but
they rats,” led the victim to believe he was targeted in retaliation. Notes of
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Testimony, 1/14/19, at 23. It was only required to authenticate the posts for
that specific purpose, and it did so through the victim’s testimony confirming
that he viewed the posts in their original form on Instagram prior to the attack.
The victim also testified based on his personal knowledge that the statement
depicted in the photos was given by his brother. He then informed police that
he believed he had been targeted in retaliation for his brother’s cooperation
with law enforcement.8 This testimony was sufficient to authenticate the posts
for the limited purposes for which they were admitted at trial. Accordingly,
Moody’s sole issue on appeal is meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2022
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8 We observe that Moody was acquitted of the charge of retaliation against a
witness. The Instagram posts did not pertain to the elements of the charges
of aggravated assault, possessing an instrument of crime, simple assault and
recklessly endangering another person for which Moody was convicted.
Regardless of the motives for the attack, those charges were made out by the
victim’s testimony that he recognized Moody as the individual who grabbed
him from behind and sliced his head and hand with a sharp object.
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