Com. v. Lowe, R. ( 2022 )


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  • J-S24023-22
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    RICKY LOWE                                 :
    :
    Appellant               :   No. 1418 EDA 2020
    Appeal from the Judgment of Sentence Entered June 26, 2020
    In the Court of Common Pleas of Chester County Criminal Division at
    No(s): CP-15-CR-0000513-2019
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    RICKY LOWE                                 :
    :
    Appellant               :   No. 1419 EDA 2020
    Appeal from the Judgment of Sentence Entered June 26, 2020
    In the Court of Common Pleas of Chester County Criminal Division at
    No(s): CP-15-CR-0000517-2019
    BEFORE:      PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*
    MEMORANDUM BY LAZARUS, J.:                            FILED DECEMBER 6, 2022
    Ricky Lowe appeals1 from the judgments of sentence, entered in the
    Court of Common Pleas of Chester County, following his convictions, at docket
    ____________________________________________
    *   Retired Senior Judge assigned to the Superior Court.
    1Lowe has filed separate notices of appeal in accordance with Pa.R.A.P. 341,
    and our Supreme Court’s decision in Commonwealth v. Walker, 195 A.3d
    (Footnote Continued Next Page)
    J-S24023-22
    No. 513-2019, of drug delivery resulting in death (DDRD),2 criminal use of a
    communication facility (CUCF),3 possession with intent to deliver (PWID),4
    possession of a controlled substance,5 and, at docket No. 517-2019, PWID,
    and possession of a controlled substance. After careful review, we affirm.
    On November 2, 2018, at approximately 7:00 a.m., Alanna Holt’s
    parents discovered Holt slumped over at the foot of her bed, unresponsive.
    The parents called 9-1-1 but, after medical treatment, Holt was pronounced
    dead at 7:42 a.m. Police also responded to the 911 call. While present, the
    police discovered drugs and drug paraphernalia, including prescription bottles,
    a nasal syringe, and a substance suspected to be heroin.6
    Detective Robert Bostick of the Tredyffrin Township Police Department
    examined Holt’s unlocked iPhone and saw text messages between Holt and an
    unknown individual with a cell phone number ending in 9597 (Number 9597).
    Holt had arranged to purchase drugs from Number 9597. Number 9597 was
    ____________________________________________
    969 (Pa. 2018). Additionally, both appeals raise identical claims, were
    consolidated in the trial court, and, for purposes of our disposition, we have
    consolidated the appeals sua sponte. See Pa.R.A.P. 513.
    2   18 Pa.C.S.A. § 2506(a).
    3   Id. at § 7512(a).
    4   35 P.S. § 780-113(a)(30).
    5   Id. at § 780-113(a)(16).
    6 Subsequent laboratory testing revealed the substance was 3-methylfentanyl,
    a schedule 1 narcotic. See 35 P.S. 780-104 (1)(ii)(23)(I). Additionally,
    laboratory testing revealed that Holt had died from using 3-methylfentanyl.
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    saved in Holt’s phone as “Jon-2 Tindr Cute Big Dog.” On November 2, 2018,
    at approximately 4:08 a.m., Holt received a text message from Number 9597
    stating “it’s there.”
    Detective Bostick began texting Number 9597 as Holt to arrange
    another drug deal. Detective Bostick and Number 9597 agreed to a drug drop
    on November 8, 2018. Detective Bostick placed counterfeit money inside of
    the mailbox at Holt’s parents’ house.          At approximately 6:40 p.m., a dark
    colored vehicle stopped in front of the mailbox and turned off its headlights.
    A male exited the vehicle and approached the mailbox. He then returned to
    his vehicle and began driving away. He turned the headlights back on a short
    time later.     As surveillance units followed the vehicle, Detective Bostick
    confirmed that the counterfeit money had been taken and replaced with a
    small plastic baggie containing a white powdery substance.7 Based upon this
    information, the police stopped the vehicle and identified the driver as Lowe.
    Lowe was placed under arrest and the vehicle was searched. Police recovered
    a blue iPhone in the vehicle.           Police confirmed that Number 9597 was
    associated with the blue iPhone.8 The police also recovered a set of AirPods
    that were linked, via Bluetooth, to the blue iPhone.
    At some point during the investigation, Detective Bostick prepared a
    report that purported to track Number 9597’s movement via cell tower.
    ____________________________________________
    7   Subsequent laboratory tests revealed it to be 3-methylfentanyl.
    8 Police discovered numerous text messages on the blue iPhone, which we
    discuss with greater detail infra.
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    Detective Bostick’s report indicated that Number 9597 did not ping off of any
    cell towers in the Tredyffrin area. Detective Bostick concluded that this report
    ultimately helped disprove the Commonwealth’s case and, subsequently,
    destroyed it. This report was not provided to Lowe or his attorney, and they
    did not become aware of it until trial. At trial, Lowe objected to the omission
    of this report, pursuant to Brady.9 Ultimately, the trial court determined that
    Detective Bostick’s report was not exculpatory, but, nevertheless, asked Lowe
    if he wanted a mistrial based upon its omission. Lowe declined a mistrial and,
    instead, asked for a missing evidence jury instruction.
    Following the jury trial, Lowe was convicted as described above. The
    trial court ordered the preparation of a pre-sentence investigation report (PSI)
    and deferred sentencing.         On June 26, 2020, the trial court conducted a
    sentencing hearing. At No. 513-2019, the trial court sentenced Lowe to a
    period of eight to twenty years in prison for his DDRD conviction, and a
    consecutive sentence of one to two years for his CUCF conviction. At No. 513-
    2019, the trial court sentenced Lowe to a consecutive period of five to ten
    years’ imprisonment for his PWID conviction for an aggregate sentence of 14-
    32 years’ incarceration.10
    Lowe filed a timely post-sentence motion, which the trial court denied.
    Lowe filed timely notices of appeal and court-ordered Pa.R.A.P. 1925(b)
    ____________________________________________
    9   Brady v. Maryland, 
    373 U.S. 83
     (1963).
    10   Lowe received no further penalty at his remaining convictions.
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    concise statements of matters complained of on appeal. Lowe now raises the
    following claims for our review:
    1. Whether the Commonwealth violated the dictates of Brady []
    when [] the Commonwealth failed to preserve and disclose
    exculpatory evidence to the [d]efense, specifically cell site data
    showing that the cell phone with the number ending in 9597 was
    not in Chester County at any point during the period surrounding
    the decedent’s death, where the Commonwealth’s theory of the
    case was that th[e] phone belonged to [Lowe], and that [Lowe]
    was principally and exclusively responsible for delivering drugs
    resulting in decedent’s death on November 2, 2018.
    2. Whether the trial court abused its discretion and committed
    reversible error in admitting [the Commonwealth’s] late-disclosed
    expert[ ]testimony three days before trial . . . .
    3. Whether the evidence presented against [Lowe] was sufficient
    to sustain his convictions for [DDRD] and [PWID] on November 2,
    2018, where the sole evidence against him [was] comprised of
    unauthenticated text messages, and the Commonwealth’s own
    witnesses testified that there was no evidence that [Lowe] was in
    Chester County, let alone at decedent’s address[,] [] at any point
    during the period surrounding decedent’s death.
    4. Whether [Lowe]’s convictions for [DDRD] and [PWID] on
    November 2, 2018[,] were against the weight of the evidence,
    [where] there was no evidence that [Lowe] was in Chester
    County, let alone at decedent’s address[,] [] at any point during
    the period surrounding the decedent’s death, and the only way to
    . . . tie [Lowe] to the crime[s] would have been through a theory
    of accomplice liability, which the Commonwealth did not assert,
    and was explicitly prohibited from pursuing mid-trial.
    5. Whether the trial court abused its discretion in imposing a
    manifestly unreasonable sentence.
    Brief for Appellant, at 11-12.
    In Lowe’s first claim, he raises two sub-issues, which we address
    separately.   In his first sub-issue, Lowe argues that Detective Bostick
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    intentionally destroyed investigative evidence that demonstrated Lowe was
    not in the area at the time the drugs were delivered to Holt.            Brief for
    Appellant, at 41-44.    Lowe contends that Detective Bostick’s first report
    indicated, based on Detective Bostick’s trial testimony, that the blue T-Mobile
    phone did not ping off of any cell towers in the area and tended to disprove
    the Commonwealth’s theory of the case. 
    Id.
     As a result, Detective Bostick
    destroyed his report. 
    Id.
     Lowe contends that the Commonwealth failed to
    provide him with the entirety of the T-Mobile data prior to trial.       
    Id.
       He
    acknowledges that the Commonwealth ultimately provided him with the entire
    T-Mobile Excel sheet, but contends that the times shown in the T-Mobile data
    support Detective Bostick’s original map, which tends to show that the blue
    iPhone was in Philadelphia at 4:00 a.m. on November 2, 2018, not in
    Tredyffrin Township. 
    Id.
     Thus, Lowe asserts that Detective Bostick’s initial
    report constitutes exculpatory evidence that was never disclosed to the
    defense in violation of Brady. Id. at 43-44.
    Our Supreme Court has explained that
    in order to establish a Brady violation, a defendant must show
    that: (1) the evidence was suppressed by the state, either willfully
    or inadvertently; (2) the evidence was favorable to the defendant
    either because it was exculpatory or because it could have been
    used for impeachment; and (3) the evidence was material in that
    its omission resulted in prejudice to the defendant. However, the
    mere possibility that an item of undisclosed information might
    have helped the defense, or might have affected the outcome of
    the trial, does not establish materiality in the constitutional sense.
    Rather, evidence is material only if there is a reasonable
    probability that, had the evidence been disclosed to the defense,
    the result of the proceeding would have been different. A
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    reasonable probability is a probability sufficient to undermine
    confidence in the outcome.
    Commonwealth v. Williams, 
    168 A.3d 97
    , 109 (Pa. 2017) (citations,
    quotation marks, and brackets omitted).
    For clarity in addressing Lowe’s sub-issues, we provide the following
    background of Detective Bostick’s testimony, Chester County Detective Kristin
    Lund’s testimony, and the arguments made by counsel surrounding the T-
    Mobile cell tower data. During Lowe’s cross-examination of Detective Bostick,
    Detective Bostick testified that he had received GPS data for the blue iPhone
    Number 9597 from T-Mobile.       N.T. Jury Trial Volume 3, 3/4/20, at 103.
    Detective Bostick testified that, on November 2, 2018, between the hours of
    midnight and 4:00 a.m., the blue iPhone “was out of the immediate area of
    Tredyffrin Township” and that it was in the Philadelphia area. 
    Id. at 104
    .
    Detective Bostick also testified that, upon receipt of the GPS data, he had
    created a map on Google Maps, but did not save a copy of that map because
    it was not consistent with the Commonwealth’s theory of the case. 
    Id. at 103-12
    .   Detective Bostick also stated that “the records indicate that the
    phone wasn’t transmitting particular data at that time.” 
    Id. at 107
    .
    On redirect, Detective Bostick testified that cell phones connect to cell
    towers that, in turn, collect data regarding those phones and their locations.
    
    Id. at 111
    .    Detective Bostick further explained that when an iPhone
    communicates with another iPhone, a direct connection to a cell tower is
    unnecessary and, rather, the iPhones communicate directly with each other.
    
    Id. at 111-12
    . Detective Bostick testified that both Lowe and the victim had
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    iPhones, which made it impossible to map out where the blue iPhone was
    located, because it was not communicating with a cell tower between the
    hours of midnight and 4:00 a.m. 
    Id.
    Subsequent to Detective Bostick’s testimony, Lowe introduced four
    pages of the T-Mobile cell phone records for the blue iPhone, which, upon
    review, did not include the location data of the phone calls from Number 9597.
    
    Id. at 103, 115, 123
    . The trial court ordered the Commonwealth to provide
    the entirety of the cell tower data it had received from T-Mobile. 
    Id. at 123
    .
    Shortly thereafter, Lowe made an oral motion that the Commonwealth had
    violated Brady and requested that either all T-Mobile data records be stricken,
    or for additional time to review the T-Mobile data records. 
    Id. at 123, 136
    .
    Notably, the T-Mobile data records were recorded in Universal Time
    Clock (UTC) time, which requires a conversion to show the time in a specific
    time zone. 
    Id. at 127
    . Regarding conversion to Eastern Daylight Time (EDT),
    counsel disagreed as to whether 4 hours needed to be added or subtracted
    from the UTC time to reflect an accurate time. 
    Id.
     Lowe contended that 4
    hours needed to be added to the UTC time and that doing so would show the
    blue iPhone in Philadelphia at 4:00 a.m. on November 2, 2018. 
    Id.
     at 124-
    25. Based upon this interpretation, Lowe contended that the T-Mobile records
    and Detective Bostick’s original map were exculpatory because, by adding 4
    hours to UTC time, the text message to the victim “It’s there” was sent at
    4:08 a.m. on November 2, 2018.        
    Id.
       By contrast, the Commonwealth
    contended that UTC time requires 4 hours to be subtracted, which placed the
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    blue iPhone in Philadelphia at 2:44 a.m.         
    Id. at 125-30
    .     Under the
    Commonwealth’s theory, there is no data shown between the hours of 2:44
    a.m. and 8:27 a.m., when the cell tower data again showed the blue iPhone
    in Philadelphia. 
    Id. at 126
    .
    Lowe countered that even if the phone records required 4 hours to be
    subtracted, the evidence was exculpatory. 
    Id. at 131
    . However, the trial
    court disagreed and took judicial notice that the travel time via car from
    Philadelphia   to   Tredyffrin   was   approximately   30-40   minutes.   
    Id.
    Nevertheless, the trial court asked Lowe if he wanted a mistrial based upon
    the Commonwealth’s failure to provide the complete T-Mobile data. 
    Id. at 136
    . Lowe specifically stated he did not want a mistrial. 
    Id. at 136, 141-42
    .
    The trial court stated that it would give a missing evidence jury instruction.
    
    Id. at 141-42
    . Ultimately, the trial court recessed for the remainder of the
    day and permitted both parties to confer with experts regarding UTC time
    conversions. 
    Id. at 142
    ; N.T. Jury Trial Volume 4, 3/5/20, at 2.
    The Commonwealth indicated that it intended to call Detective Lund to
    clarify the method of UTC time conversion. Id. at 11. Accordingly, the trial
    court, outside the presence of the jury, permitted defense counsel to cross-
    examine Detective Lund regarding her qualifications, testimony, and her
    report on UTC time conversion. Id. at 11-27. Subsequently, Detective Lund
    testified, before the jury, that UTC time conversion to EDT required 4 hours
    to be subtracted.    Id. at 40.   Detective Lund explained that the T-Mobile
    records showed the blue iPhone in Philadelphia at 6:44 a.m., UTC time. Id.
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    at 44-45. Detective Lund stated that by subtracting 4 hours, the blue iPhone
    was in Philadelphia at 2:44 a.m. EDT. Id. The next call placed by the blue
    iPhone was at 12:27 p.m. UTC time, or 8:27 a.m. EDT. Id. at 46. The 8:27
    a.m. call also placed the blue iPhone in Philadelphia.         Id.   Detective Lund
    testified that there was no other data collected for the time period between
    2:44 a.m. to 8:27 a.m. EDT on November 2, 2018, for the blue iPhone. Id.
    at 47. Ultimately, when charging the jury, the trial court gave the missing
    evidence jury instruction on the Commonwealth’s failure to produce
    evidence.11 N.T. Jury Trial Volume 5, 3/6/20, at 77-78.
    ____________________________________________
    11   The trial court stated as follows:
    There was also some discussion about the cellphone location
    records and map records. There was a question about what
    weight[,] if any[,] you should give to the failure of the
    Commonwealth to produce cellphone location records prior to and
    during this trial.
    If three factors are present and there’s no satisfactory explanation
    for a party’s failure to produce an item, the jury is allowed to draw
    a commonsense inference that . . . item would have been evidence
    unfavorable to that party.
    Three factors are necessary for that. First, the item was available
    to that party, not the other. In this case its conceded that the
    cellphone records were uniquely available to the Commonwealth.
    Second, it appears that the item contains or shows special
    information material to the issue.
    And third, the item would not be merely cumulative evidence. In
    this case the Commonwealth, the district attorney, had a legal
    responsibility to disclose these records to the defense prior to trial,
    and they failed to meet that responsibility.
    (Footnote Continued Next Page)
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    Based upon the above, we cannot conclude that Detective Bostick’s
    original map was exculpatory. Importantly, Detective Bostick’s original map
    was incorrect because he calculated UTC time conversion by adding 4 hours
    rather than subtracting 4 hours. See N.T. Jury Trial Volume 3, 3/4/20, at
    103-12; see also N.T. Jury Trial Volume 4, 3/5/20, at 11-27 (wherein
    Detective Lund explained proper UTC time conversion). Additionally, we agree
    with the trial court that Philadelphia is not so far from Tredyffrin as to make it
    impossible for the blue iPhone to travel from Philadelphia at 2:44 a.m. and
    arrive at Holt’s house by 4:08 a.m. See N.T. Jury Trial Volume 3, 3/4/20, at
    131 (trial court explaining Tredyffrin is approximately 30 to 40 minutes by car
    from Philadelphia); see also Trial Court Opinion, 11/1/21, at 7.12 Moreover,
    ____________________________________________
    Therefore, if you find these three factors are present and there’s
    no satisfactory explanation for the Commonwealth’s failure to
    produce these records prior to and at this trial, you may infer, if
    you choose to do so, that it may have been evidence unfavorable
    to the Commonwealth.
    Id. at 77-78.
    12 Furthermore, to the extent that Lowe contends he is entitled to a new trial
    based upon the Commonwealth’s initial failure to provide the full T-Mobile data
    prior to trial, we conclude that such claim is waived. It is clear from the record
    that the trial court specifically asked Lowe if he wanted a mistrial based upon
    the Commonwealth’s failures to disclose evidence, exculpatory or not. See
    N.T. Jury Trial Volume 3, 3/4/20, at 136, 141-42. Lowe declined the offer of
    a mistrial and specifically stated he did not want one. Id. Rather, Lowe
    acquiesced to the Commonwealth’s suggestion of presenting expert
    testimony, via Detective Lund, regarding the UTC time conversion. See N.T.
    Jury Trial Volume 3, 3/4/20, at 136, 141-42. Thus, to the extent Lowe seeks
    a new trial based upon the Commonwealth’s failure to disclose the T-Mobile
    (Footnote Continued Next Page)
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    we emphasize that because Lowe and Holt both used cell phones, cell tower
    pings are not solely dispositive of this issue in the instant case. As Detective
    Bostick testified, iPhones utilize an internal messaging service that can
    circumvent the need for cell towers. See N.T. Jury Trial Volume 3, 3/4/20, at
    111-13, 125-30 (wherein Detective Bostick testified regarding iPhone internal
    messaging services and that iPhone-to-iPhone communications do not
    necessarily utilize cell towers). Accordingly, Lowe is not entitled to relief on
    his first sub-issue.
    In Lowe’s second sub-issue, he asserts that even if there was not a
    Brady violation, the trial court erred in admitting the text messages because
    they were not properly authenticated and were, therefore, hearsay evidence
    that did not fall under an exception.          Brief for Appellant, at 44-53.   Lowe
    contends that the Commonwealth presented no direct evidence that Lowe
    owned or used the blue T-mobile phone. Id. at 50-53. Lowe acknowledges
    that the Commonwealth may authenticate text messages by wholly
    circumstantial evidence, but nevertheless contends that the Commonwealth’s
    circumstantial evidence was insufficient to establish Lowe’s use or ownership
    of the phone. Id. Additionally, Lowe contends that the unauthenticated text
    messages are necessarily hearsay without an exception that the trial court
    ____________________________________________
    data prior to trial, we conclude this claim is waived. See Pa.R.A.P. 302(a)
    (issues not raised before trial court waived on appeal); see also
    Commonwealth v. Hannibal, 
    156 A.3d 197
    , 209-10 (Pa. 2016) (Brady
    claims subject to waiver).
    - 12 -
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    erred in admitting and that the errors amount to reversible error. 
    Id.
     at 54-
    56.
    We adhere to the following standard of review:
    The admissibility of evidence is a matter within the sound
    discretion of the trial court and will be reversed only where there
    is a clear abuse of discretion. . . . Evidence is admissible if it is
    relevant—that is, if it tends to establish a material fact, makes a
    fact at issue more or less probable, or supports a reasonable
    inference supporting a material fact—and its probative value
    outweighs the likelihood of unfair prejudice.
    Commonwealth v. Clemons, 
    200 A.3d 441
    , 475 (Pa. 2019) (citations
    omitted).
    Pennsylvania Rule of Evidence 901 requires that, for electronic
    communications, authentication is required prior to admission of evidence.
    See Commonwealth v. Talley, 
    235 A.3d 42
    , 59 (Pa. Super. 2020). Rule
    901 provides, in relevant part, as follows:
    (a) In General. 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.
    (b) Examples. The following are examples only--not a complete
    list--of evidence that satisfies the requirement:
    *     *      *
    (11) Digital Evidence. To connect digital evidence with a
    person or entity:
    *     *      *
    (B) circumstantial evidence such as:
    (i) identifying content; or
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    (ii) proof of ownership, possession, control, or
    access to a device or account at a relevant time
    when       corroborated    by     circumstances
    indicating authorship.
    *     *      *
    Pa.R.E. 901(b)(11) . . . “Digital evidence,” as used in this rule, is
    intended to include a communication, statement, or image
    existing in an electronic medium. This includes emails, text
    messages, social media postings, and images.              The rule
    illustrates the manner in which digital evidence may be attributed
    to the author.
    The proponent of digital evidence is not required to prove that no
    one else could be the author. Rather, the proponent must
    produce sufficient evidence to support a finding that a
    particular person or entity was the author. []
    *     *      *
    Circumstantial evidence of identifying content under Pa.R.E.
    901(b)(11)(B)(i) may include self-identification or other
    distinctive characteristic, including a display of knowledge only
    possessed by the author. Circumstantial evidence of content may
    be sufficient to connect the digital evidence to its author.
    Circumstantial evidence of ownership, possession, control, or
    access to a device or account alone is insufficient for
    authentication of authorship of digital evidence under Pa.R.E.
    901(b)(11)(B)(ii). . . . However, this evidence is probative in
    combination with other evidence of the author’s identity.
    Pa.R.E. 901(a), (b)(11)(i-ii), cmt (emphasis added).
    “[A]uthentication   of   electronic    communications,   like   documents,
    requires more than mere confirmation that the number or address belonged
    to a particular person[.]” Commonwealth v. Mosley, 
    114 A.3d 1072
    , 1081
    (Pa. Super. 2015). Generally, evidence that the cell phone on which the text
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    messages appear belongs to the defendant and was in his possession in close
    temporal proximity to the time of the messages, coupled with an absence of
    evidence that others used that phone, and some content on the cell phone
    that is consistent with evidence concerning the defendant, is sufficient to
    authenticate messages as having been sent by the defendant.             See
    Commonwealth v. Bowens, 
    265 A.3d 730
    , 746 (Pa. Super. 2021) (en
    banc).
    We observe that there are several sets of text messages at issue that
    span from approximately October 15, 2018 to November 8, 2018. On October
    15, 2018, Number 9597 sent a text message to Holt’s phone that stated, “Yo
    Lana,” to which Holt responded, “Yo! This Fresh?” See Commonwealth Exhibit
    1. Number 9597 goes on to identify itself as “Fresh” and says that he had
    just recently been released from prison. See 
    id.
     “Fresh” then states “I’m
    given out all str8 hammer for the next two three weeks str8 just to get my
    phone back how its spose to b cuz I don’t know wat my yungin was given
    people while I was booked so get it while u can if u want something k.” 
    Id.
    The Commonwealth presented, to the trial court, Ricky Lowe’s docket sheets
    that detailed his release from Delaware County Prison on October 3, 2018.
    See Commonwealth Exhibit 2.
    Subsequently, on October 19, 2018, Holt responded “Shit man that
    sucks … You got Facebook or something that I can message you on? I don’t
    wanna be textin.” See Commonwealth Exhibit 9. “Fresh” states that his name
    on Facebook is “Ricky Lowe.” See 
    id.
     During the course of Detective Bostick’s
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    investigation, he went to Ricky Lowe’s Facebook profile page.             The
    Commonwealth introduced Exhibits 10A and 10B, which, respectively, are a
    photograph of Ricky Lowe in high school and his Facebook profile picture. See
    Commonwealth Exhibits 10A, 10B.        The Commonwealth also introduced
    various Facebook communications in which the “Ricky Lowe” profile referred
    to itself as “Fresh.” See Commonwealth Exhibits 11, 12.
    On November 1, 2018, Holt messaged “Fresh” and asked to arrange an
    exchange of drugs later that evening. See Commonwealth Exhibit 8. Holt
    told “Fresh” that she would put the “stuff in the mailbox in like 20 min.” 
    Id.
    On November 2, 2018, in the early morning Holt again messaged “Fresh” and
    provided him with an address. See 
    id.
     “Fresh” then responded, “It’s there.”
    See Commonwealth Exhibit 12.
    Additionally, on November 1, 2018, Number 9597 texted to a different
    phone number “[o]nly way I could is if u came down cuz I got court in the
    a.m.” See Commonwealth Exhibit 4. Number 9597 elaborated that he was
    currently on West Stiles Street and discussed going to sleep early so that he
    could be on time for court the next day. 
    Id.
     Commonwealth Exhibit 4 details
    additional conversations regarding Number 9597’s court dates. See 
    id.
    At trial, the Commonwealth introduced Commonwealth Exhibit 5, which
    was a subpoena, signed by Ricky Lowe, that shows Ricky Lowe appeared in
    the Philadelphia Court of Common Pleas on November 2, 2018, at 11:06 a.m.
    See Commonwealth Exhibit 5. Relevantly, on November 2, 2018, at 11:04
    a.m., Number 9597 sent an outgoing text message stating, “I’m bouta b
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    leaving in a sec got another court day tho.” See 
    id.
     The subpoena also lists
    Lowe’s address as West Stiles Street in Philadelphia. 
    Id.
     Lowe told detectives
    that his address was on Stiles Street in Philadelphia.    See Commonwealth
    Exhibit 6.
    At some point in the early morning of November 2, 2018, Holt passed
    away from overdosing on drugs. At approximately 12:0 p.m. EDT that same
    day, Detective Bostick began using Holt’s phone to text “Fresh” at Number
    9597. See id.; see also N.T. Jury Trial Volume 1, 3/02/20, at 203-04. On
    November 7, 2018, Detective Bostick asked if “Fresh” could “come this way
    tomorrow” and bring the same thing as last time. See Commonwealth Exhibit
    12.   “Fresh” responds affirmatively, and Detective Bostick and “Fresh”
    discussed payment in pills. 
    Id.
    On November 8, 2018, Detective Bostick and “Fresh” resumed texting
    and discussed what types of pills Detective Bostick was using to pay. See
    Commonwealth Exhibits 8, 12.        Based upon the amount and type of pills
    Detective Bostick offered, “Fresh” responded that he will “put some extra in
    there.” 
    Id.
     Detective Bostick informed “Fresh” that the payment was in the
    mailbox.     
    Id.
       Subsequently, the police observe a vehicle drive up to the
    mailbox, and then drive away. After stopping and searching the vehicle, the
    officers identified the driver as Ricky Lowe, who was in possession of the blue
    iPhone linked to Number 9597.
    In conclusion, it is clear from our review that the Commonwealth
    authenticated the above-described text messages as having been authored by
    - 17 -
    J-S24023-22
    Ricky Lowe. We note that it appears someone else was using Number 9597
    prior to October 3, 2018; however, on October 15, 2018, the individual
    utilizing Number 9597 begins referring to themselves as “Fresh.”         See
    Commonwealth Exhibit 1. “Fresh” explained that he had been out of touch
    due to a recent incarceration.    See 
    id.
        The Commonwealth presented
    evidence that Ricky Lowe had recently been released from prison.         See
    Commonwealth Exhibit 2.      Additionally, “Fresh” explained that he has a
    Facebook page under the name “Ricky Lowe.” See Commonwealth Exhibit 9.
    The Commonwealth presented photographs taken from the “Ricky Lowe”
    Facebook profile, which were later used to identify Lowe as the defendant.
    See Commonwealth Exhibit 10A; Commonwealth Exhibit 10B. Furthermore,
    in various communications on his Facebook page, Ricky Lowe identified
    himself as “Fresh.” See Commonwealth Exhibit 11; Commonwealth Exhibit
    12. “Fresh” then discussed the drug deals with Holt, and confirmed that he
    dropped off drugs in the mailbox of Holt’s home in the early morning of
    November 2, 2018. See Commonwealth Exhibit 4. Number 9597 went on to
    text other phone numbers and detailed that he has a court date in the morning
    of November 2, 2018, which Lowe appeared for, and signed a subpoena. See
    id.; Commonwealth Exhibit 5. Mere minutes before signing that subpoena,
    Number 9597 texted another number that he was almost done at court, but
    had another court date coming up.      See Commonwealth Exhibit 5.       The
    Commonwealth presented the signed and dated subpoena to the trial court.
    See 
    id.
     That same subpoena details Lowe’s address as West Stiles Street,
    - 18 -
    J-S24023-22
    which matches what he told detectives in his interview. See id.; see also
    Commonwealth Exhibit 6.       Additionally, in the text messages exchanged
    between Detective Bostick and “Fresh,” “Fresh” did not ask what amount of
    drugs to deliver, what type of drugs to deliver, and did not ask where the
    drugs needed to be delivered, which tends to show that “Fresh” was familiar
    with delivering drugs to Holt. See Commonwealth Exhibit 8; Commonwealth
    Exhibit 12; see also N.T. Jury Trial Volume 1, 3/02/20, at 204-05; 
    id.,
    3/04/20, at 48. Ultimately, the police recovered the blue iPhone associated
    to Number 9597 in Lowe’s possession.
    Based upon the foregoing, we conclude that the Commonwealth
    properly authenticated the text messages, via circumstantial evidence, and
    that the trial court did not err in admitting the messages into evidence. See
    Bowen, supra; Mosley, supra; see also Pa.R.Crim.P. 901. Moreover, we
    conclude that because the text messages were properly authenticated, Lowe’s
    hearsay challenge is of no moment.             See Talley, supra; see also
    Commonwealth        v.   Koch,   
    39 A.3d 996
    ,   1006   (Pa.   Super.   2011)
    (authentication is prerequisite to admissibility; where text messages properly
    authenticated, text messages subject to party opponent hearsay exception).
    Accordingly, Lowe is entitled to no relief on this claim.
    In Lowe’s second issue, he asserts that the trial court erred in denying
    his motion in limine seeking to exclude the Commonwealth’s late-disclosed
    expert opinion. Brief for Appellant, at 56-59. Lowe argues that the expert
    testimony from Detective Zachary Moyer, which established that AirPods can
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    J-S24023-22
    only be Bluetooth-connected to one iPhone at a time, was wholly irrelevant
    and unfairly prejudicial.13 
    Id.
     In particular, Lowe argues that the testimony
    could only establish that his AirPods were connected to the blue T-mobile
    iPhone on November 8, 2018, when the police arrested him, but not on
    November 2, 2018, when the drugs resulting in decedent’s death were
    delivered. 
    Id.
    We observe that this challenge is waived because Lowe did not make
    this objection before the trial court. Our review reveals that Lowe objected to
    Detective Moyer’s testimony because he “d[idn’]t have any way of either
    evaluating or contesting that evidence . . . I have no idea how [Detective
    Moyer] came to that conclusion.” N.T. Jury Trial Volume 1, 3/2/20, at 51. In
    response, the trial court agreed that the Commonwealth disclosed Detective
    Moyer’s testimony late and offered Lowe either a continuance or a hearing
    outside the presence of the jury regarding Detective Moyer’s credentials and
    expert testimony. Id. at 53-54. Lowe declined a postponement and opted to
    take the trial court’s second suggestion. Id. at 54-56.
    Based upon our review of the record Lowe did not object to Detective
    Moyer’s testimony on the basis of relevance, jury confusion, or prejudice,
    which he now does for the first time on appeal. Additionally, Lowe does not
    direct us to anywhere in the record where he preserved this claim. It is well-
    ____________________________________________
    13Relevantly, in an attempt to prove Lowe’s ownership of the blue iPhone, the
    Commonwealth sought to introduce Detective Moyer’s testimony regarding
    the AirPods to demonstrate that AirPods can only be connected to a single
    iPhone at a time.
    - 20 -
    J-S24023-22
    settled that claims cannot be raised for the first time on appeal. See Pa.R.A.P.
    302(a) (issues not raised before trial court are waived on appeal); see also
    Commonwealth v. Williams, 
    900 A.2d 906
    , 909 (Pa. Super. 2006)
    (“[I]ncluding an issue in a [Rule 1925(b) statement] does not revive issues
    that were waived in earlier proceedings.”).     Accordingly, we conclude that
    Lowe has waived this challenge.
    In his third issue, Lowe argues that the evidence was insufficient to
    convict him of DDRD. Brief for Appellant, at 59-64. In particular, Lowe argues
    that the Commonwealth failed to prove that Lowe had the requisite mens rea
    because it relied on the Commonwealth’s assertion that Lowe “knew
    decedent’s exact order.” Id. at 62-63. Lowe argues that if he “knew” her
    order, “then it is impossible to also find recklessness around causing her
    death; if [Lowe] gave her the same product every time, there is no reason
    [for Lowe] to believe that she would have died this time.” Id. at 63. Lowe
    further contends that the Commonwealth’s witnesses explained that decedent
    “likely” had a tolerance to fentanyl, and therefore improperly concluded that
    it caused her death. Id. at 63-64.
    Lowe challenges the sufficiency of the evidence, for which we adhere to
    the following standard of review:
    [W]hether[,] viewing all the evidence admitted at trial, in the light
    most favorable to the verdict winner, there is sufficient evidence
    to enable the fact-finder to find every element of the crime beyond
    a reasonable doubt. In applying [the above] test, we may not [re-
    ]weigh the evidence and substitute our judgment for the fact-
    finder. In addition, we note that the facts and circumstances
    established by the Commonwealth need not preclude every
    - 21 -
    J-S24023-22
    possibility of innocence. Any doubts regarding a defendant’s guilt
    may be resolved by the fact-finder unless the evidence is so weak
    and inconclusive that[,] as a matter of law[,] no probability of fact
    may be drawn from the combined circumstances.                    The
    Commonwealth may sustain its burden of proving every element
    of the crime beyond a reasonable doubt by means of wholly
    circumstantial evidence. Moreover, in applying the above test,
    the entire record must be evaluated[,] and all evidence received
    must be considered. Finally, the [trier] of fact[,] while passing
    upon the credibility of witnesses and the weight of the evidence
    produced, is free to believe all, part[,] or none of the evidence.
    Commonwealth v. Smith, 
    97 A.3d 782
    , 790 (Pa. Super. 2014) (citation
    omitted).
    The Crimes Code defines DDRD as follows:
    § 2506. Drug delivery resulting in death
    (a) Offense defined.--A person commits a felony of the first
    degree if the person intentionally administers, dispenses, delivers,
    gives prescribes, sells or distributes any controlled substance or
    counterfeit controlled substance in violation of section(a)(14) or
    (30) or the . . . Controlled Substance, Drug, Device and Cosmetic
    Act, and another person dies as a result of using the substance.
    18 Pa.C.S.A. § 2506(a).      The crime of DDRD “consists of two principal
    elements:   ‘(i) [i]ntentionally administering, dispensing, delivering, giving
    prescribing, selling or distributing any controlled substance or counterfeit
    controlled substance and (ii) death caused by (‘resulting from’) the use of that
    drug.’” Commonwealth v. Kakhankham, 
    132 A.3d 986
    , 991-92 (Pa. Super.
    2015). This Court has previously stated:
    [T]he applicable mens rea for the crime of [DDRD] is two-fold.
    First, the delivery, distribution or sale of the contraband must be
    intentional. [Id. at 992.] Second[,] the actual death must be the
    reckless result of the actions of the defendant. Id. at 995. As
    such, the crime is an intentional act in providing contraband, with
    a reckless disregard of death from the use of the contraband.
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    J-S24023-22
    Commonwealth v. Carr, 
    227 A.3d 11
    , 16-17 (Pa. Super. 2020).
    Instantly, the trial court addressed this issue as follows:
    Text messages from [the blue iPhone] clearly showed that the
    user of that phone was the person who delivered the drugs. This
    is shown by the text message stating, “it’s there,” and the text
    message indicating that the person did not see anyone when the
    drugs were delivered. The Commonwealth [introduced evidence]
    that Number 9597 belonged to [Lowe] by introducing exhibits,
    including pictures, docket sheets, court filings, maps, and social
    media postings that [] linked [Lowe] to th[e] phone. Moreover,
    the fact that the same, rare drugs were delivered to [the victim]’s
    residence, were packed in the same way[,] and [] were delivered
    in the same manner also leads to the conclusion that the same
    person delivered the drugs both times.          In addition, when
    Detective Bostick set up the drug deal on November 8, 2018, he
    did not tell the person he was communicating with what kind of
    drugs he wanted or the amount he wanted. [Detective Bostick]
    also did not give the person an address or directions on how to
    get there, nor did he tell them where to leave the drugs. [Rather,
    Detective Bostick] was intentionally vague so that the delivery on
    November 8, 2018[,] would be consistent with the delivery on
    November 2, 2018[.] The similarities between the two sales leads
    to the conclusion that the same person was responsible for both
    deliveries.
    [Additionally, the Commonwealth introduced] a video of the
    November 8, 2018 drug delivery [] at trial. A review of the video
    makes it clear that [Lowe], who was caught re[d]-handed on
    November 8, 2018, had been to [Holt’s residence] before and had
    delivered drugs in the same manner previously.
    Trial Court Opinion, 11/1/21, at 8-9.
    Upon review of the record, we agree with the trial court that the
    Commonwealth presented sufficient evidence to sustain Lowe’s conviction of
    DDRD. See id.; see also Smith, supra. The Commonwealth’s evidence
    pertaining to the text messages from the blue iPhone, proof of Lowe’s
    authorship of those messages, and the similarities of details surrounding the
    - 23 -
    J-S24023-22
    November 2nd and 8th deliveries, combined to demonstrate that Lowe delivered
    the substance to Holt, who ultimately died from its use.           See Trial Court
    Opinion, 11/1/21, at 8-9.       Thus, the evidence demonstrated that Lowe
    intentionally delivered a controlled substance, 3-methylfentanyl, to Holt, that
    3-methylfentanyl caused her death, and that her death was the reckless result
    of Lowe’s actions. See Carr, supra; see also Commonwealth v. Storey,
    
    167 A.3d 750
    , 757-58 (Pa. Super. 2017) (dangers of heroin are so great and
    well-known that sale of heroin itself is sufficient to satisfy recklessness
    requirement when death occurs as result of sale); Commonwealth v.
    Burton, 
    234 A.3d 824
    , 833 (Pa. Super. 2020) (finding sufficient evidence for
    DDRD where defendant intentionally delivered fentanyl that caused victim’s
    death). We conclude, similarly to Storey and Burton, that the dangers of
    fentanyl are so great—even greater than those of heroin—that a sale of
    fentanyl   resulting   in   death   must,   likewise,   satisfy   the   recklessness
    requirement. See Storey, supra. Accordingly, Lowe is not entitled to relief
    on this claim. See Smith, supra.
    In his fourth issue, Lowe argues that his convictions are against the
    weight of the evidence. Brief for Appellant, at 64-66. Lowe argues that his
    conviction based on missing cell site data, decedent’s previous history of drug
    use, and lack of evidence that Lowe actually delivered the drugs on November
    2, 2018, must shock the conscience and mandate reversal.                 Id. at 65.
    Additionally, Lowe argues that if he “acted in the manner alleged by the
    Commonwealth, then he could not have recklessly caused her death.” Id.
    - 24 -
    J-S24023-22
    We conclude that Lowe has waived this claim for failure to raise it before
    the trial court. See Pa.R.A.P. 302(a). It is well-settled that a weight claim
    must be raised before the trial court, generally in a post-sentence motion or
    orally on the record. See Pa.R.Crim.P. 607; see also Commonwealth v.
    Sherwood, 
    982 A.2d 483
    , 494 (Pa. 2009) (appellant’s failure to raise weight
    claim before trial court results in waiver).       Instantly, Lowe’s weight claim
    makes its first appearance in his Rule 1925(b) statement and, thus, it is
    waived for our review.14 See Williams, 
    900 A.2d at 909
    .
    In Lowe’s fifth claim, he challenges the discretionary aspects of his
    sentence, from which there is no automatic right to appeal.                  See
    Commonwealth v. Austin, 
    66 A.3d 798
    , 807-08 (Pa. Super. 2013). Rather,
    when an appellant challenges the discretionary aspects of his sentence, we
    must consider his brief on this issue as a petition for permission to appeal.
    Commonwealth v. Yanoff, 
    690 A.2d 260
    , 267 (Pa. Super. 1997). Prior to
    reaching the merits of a discretionary sentencing issue,
    [this Court conducts] a four-part analysis to determine: (1)
    whether appellant has filed a timely notice of appeal, see
    Pa.R.A.P. 902 and 903; (2) whether the issue was properly
    ____________________________________________
    14 Moreover, we note that even if Lowe had not waived this weight claim, his
    brief merely re-argues his sufficiency claim, which we addressed above.
    Sufficiency and weight claims are distinct and, thus, we would decline to
    address his claim on this basis as well. See Commonwealth v. Widmer,
    
    744 A.2d 745
    , 751-52 (Pa. 2000) (sufficiency of evidence claims are distinct
    from weight of evidence claims; case explains differences between sufficiency
    and weight challenges); see also Commonwealth v. Sexton, 
    222 A.3d 405
    ,
    416 (Pa. Super. 2019) (appellant waived challenge to weight of evidence
    where appellant’s brief conflated weight and sufficiency claims and did not
    otherwise develop weight claim).
    - 25 -
    J-S24023-22
    preserved at sentencing or in a motion to reconsider and modify
    sentence, see Pa.R.Crim.P. [720]; (3) whether appellant’s brief
    has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a
    substantial question that the sentence appealed from is not
    appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
    Commonwealth v. Moury, 
    992 A.2d 162
    , 170 (Pa. Super. 2010) (quotation
    marks and some citations omitted).
    Here, Lowe has filed a timely notice of appeal, post-sentence motion,
    and properly included a Rule 2119(f) statement in his brief. Accordingly, we
    must determine whether Lowe has raised a substantial question.
    “We review an appellant’s Rule 2119(f) statement to determine whether
    a substantial question exists.” Commonwealth v. Ahmad, 
    961 A.2d 884
    ,
    886-87 (Pa. Super. 2008).        The determination of what constitutes a
    substantial   question   must   be   evaluated   on   a   case-by-case    basis.
    Commonwealth v. Paul, 
    925 A.2d 825
    , 828 (Pa. Super. 2007). A substantial
    question exists where an appellant sets forth a plausible argument that the
    sentence violates a particular provision of the Sentencing Code or is contrary
    to the fundamental norms underlying the sentencing process. 
    Id.
     This Court
    “cannot look beyond the statement of questions presented and the prefatory
    [Rule] 2119(f) statement to determine whether a substantial question exists.”
    Commonwealth v. Christine, 
    28 A.3d 1
    , 10 (Pa. Super. 2013).
    It is well-settled that this Court does not accept bald assertions of
    sentencing errors. See Commonwealth v. Malovich, 
    903 A.2d 1257
    , 1252
    (Pa. Super. 2006). When we examine an appellant’s Rule 2119(f) statement
    to determine whether a substantial question exists, “[o]ur inquiry must focus
    - 26 -
    J-S24023-22
    on the reasons for which the appeal is sought, in contrast to the facts
    underlying the appeal, which are necessary only to decide the appeal on the
    merits.”   Ahmad, 
    961 A.2d at 886-87
     (citation omitted).        A Rule 2119(f)
    statement is inadequate when it “contains incantations of statutory provisions
    and pronouncements of conclusions of law[.]” Commonwealth v. Bullock,
    868 A2.d 516, 528 (Pa. Super. 2005) (citation omits).
    Instantly, Lowe’s Rule 2119(f) statement falls short of our requirements
    and, accordingly, we conclude that Lowe has failed to present a substantial
    question for our review. Lowe has presented five questions in his Rule 2119(f)
    statement. We note that his first and third questions are duplicates, and his
    second and fourth questions are duplicates.      Further, Lowe’s Rule 2119(f)
    statement presents little more than legal conclusions and bald assertions of
    the trial court’s purported abuse of discretion. See Brief for Appellant, at 18-
    19; see also Malovich, supra; Bullock, supra. Indeed, Lowe does not cite
    to the Sentencing Code or the fentanyl sentencing guidelines to support a
    challenge to his sentence. Nor does Lowe’s Rule 2119(f) statement discuss
    what factor or factors the trial court allegedly did not consider.     Brief for
    Appellant, at 18-19. Additionally, we observe that Lowe’s final question fails
    to raise a substantial question, because a general challenge to the concurrent
    or consecutive nature of sentences does not, on its own, raise a substantial
    question for this Court to review. See Commonwealth v. Lloyd, 
    878 A.2d 867
    , 873 (Pa. Super. 2005) (“[I]mposition of consecutive rather than
    concurrent sentences lies within the sound discretion of the sentencing court,
    - 27 -
    J-S24023-22
    and a challenge to the imposition of consecutive sentences does not raise a
    substantial question.”).        Thus, we conclude that Lowe has waived his
    challenges to the discretionary aspect of his sentence.15
    Based upon the foregoing, Lowe is not entitled to relief on any of his
    claims. Accordingly, we affirm Lowe’s judgment of sentence.
    Judgments of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/6/2022
    ____________________________________________
    15 Moreover, even if Lowe had not waived his challenges or raised a substantial
    question, we would afford him no relief. In addressing Lowe’s sentencing
    claims, the trial court concluded that Lowe delivered 3-methylfentanyl to Holt
    and Lowe knew he was delivering 3-methylfentanyl and, thus, properly
    sentenced Lowe under the fentanyl sentencing guidelines. See Trial Court
    Opinion, 11/1/21, at 13-14. Additionally, the trial court expressly stated that
    it had considered the PSI. See N.T. Sentencing Hearing, 6/26/20, at 1-2, 33-
    41 (trial court stating it considered PSI and detailing reasons for sentence);
    Trial Court Opinion, 11/1/21, at 13; see also Commonwealth v. Devers,
    
    546 A.2d 12
    , 18 (Pa. 1988) (where sentencing court considered PSI, it is
    presumed court “[was] aware of relevant information regarding the
    defendant’s character and weighed those considerations along with the
    mitigating statutory factors”).
    - 28 -