Com. v. Wayne, D. ( 2020 )

J-S75004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
DION ELIJAH WAYNE
Appellant No. 146 WDA 2019
Appeal from the Judgment of Sentence Entered December 21, 2018
In the Court of Common Pleas of Erie County
Criminal Division at No.: CP-25-CR-0000697-2018
BEFORE: STABILE, KUNSELMAN, and PELLEGRINI,* JJ.
MEMORANDUM BY STABILE, J.: FILED MARCH 17, 2020
Appellant Dion Elijah Wayne appeals from the December 21, 2018
judgment of sentence entered in the Court of Common Pleas of Erie County
(“trial court”), following his jury convictions for possession with intent to
deliver (heroin and/or fentanyl), tampering with or fabricating physical
evidence, and criminal use of communication facility.1 Upon review, we affirm.
The facts and procedural history of this case are undisputed. As aptly
summarized by the trial court:
On January 5, 2018, Adam Yurkewicz’s grandmother found
Yurkewicz unconscious in the bathroom of her residence at 815
Michigan Avenue, Erie, Pennsylvania. The grandmother
telephoned 911 and the Millcreek Township Police were dispatched
to the residence. Detective Ryan Presner [who was employed as
a patrol officer at the time] was the first police officer to arrive at
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 4910(1) and 7512(a),
respectively.
J-S75004-19
the scene. Upon arrival, Detective Pruner observed Yurkewicz on
the floor. Yurkewicz bad a “bluish-purple tint” and was
surrounded by firefighters who were checking for a pulse. Presner
also observed a partially loaded syringe in the bathroom sink.
Yurkewicz was placed in an ambulance where Presner went
through Yurkewicz’s pockets and recovered a cell phone and a
pack of cigarettes which contained a folded-up piece of paper
holding a white, chalky substance. Yurkewicz was transported to
UPMC Hamot Hospital where he died early the following morning,
on January 6, 2018. It was determined Yurkewicz died from an
overdose of fentanyl. Presner turned over Yurkewicz’s cell phone
to Detectives Hardner and Morelli of the Special Investigations
Unit of the Millcreek Police Department when they arrived at the
scene. Detective Hardner examined the call log and text
messages on the cell phone to determine whether a transaction
involving drugs had occurred. He read text messages exchanged
during the morning of January 5, 2018 between Yurkewicz’s cell
phone and the telephone number “814-449-9983” (hereinafter
9983). Detective Hardner found 9983 was entered in Yurkewicz’s
contact information under the name “Louis”. Based upon the
content of these messages and Detective Hardner’s experience in
narcotics investigations, he determined 9983 was a “phone
number of interest” with regard to the investigation surrounding
Yurkewicz’s death. Detective Anne Styn extracted contents of the
cell phone including the text messages, call logs, photographs, a
web history, Facebook and Snapchat accounts associated with
Yurkewicz, and a Gmail account with the email address
Yurks42589.
At trial, the Commonwealth presented testimony from Yurkewicz’s
fiancée, Kayla Turk. Turk was familiar with Yurkewicz’s cell phone
and testified she was present when Yurkewicz was sending text
messages from his cell phone the morning of January 5, 2018.
Turk also identified Commonwealth Exhibit 18 as a list of personal
text messages between herself and Yurkewicz on January 5, 2018.
The Commonwealth’s witness Marlene Yurkewicz, the decedent’s
grandmother, testified as to calls she made to Yurkewicz’s cell
phone on January 5, 2018, that had been recovered in Yurkewicz’s
cell phone records.
At trial, Detective Hardner testified concerning Commonwealth
Exhibit 13, a transcription of text messaging between Yurkewicz’s
cell phone and 9983, the aforementioned number of interest, from
the morning of January 5, 2018. Detective Hardner testified these
texts were highly indicative of drug dealing. Detective Hardner
testified about the content of the text messages as follows:
MR. SELLERS: All right. Again, Detective, tell the jury which
of these messages come from Adam Yurkewicz and which of
them go to the number identified as Louis.
HARDNER: Adam Yurkewicz is the blue messages, and the
Louis phone number is the one in yellow.
-2-
J-S75004-19
MR. SELLERS: And can you read them for us?
HARDNER: Yes. Adam says, yo. The guy responds, sup.
He says, WYA, where you at. He says, over east. He says,
on my way.
MR. SELLERS: Next slide.
HARDNER: What you needed? He responds, 60. Where
should I go, then question mark. Bout to be on the east.
He responds, 25 German.
MR. SELLERS: Next slide.
HARDNER: He says, K. Be like 10 to 15. How much for the
half. He says, 80 bro. Then, K.
MR. SELLERS: Next slide.
HARDNER: Then, give me that. He says, yup. He says, bout
to pull up. He says, okay. Here. Then, 24 German between
Parade.
....
MR. SELLERS: Can you read that for us?
HARDNER: K. Here. And then, you good bro.
Pings to cell phone towers from Yurkewicz’s cell phone placed
Yurkewicz in the area of 24th and German Streets at
approximately the same time he received the text messages from
9983 directing him to meet there for the transaction.
During the afternoon of January 5, 2018, Detective Hardner texted
9983 from a random telephone number generated by a special
application on Detective Hardner’s cell phone in an effort to set up
a drug transaction with the person who was using the cell phone
associated with 9983. Detective Hardner received a telephone call
from a male calling from 9983. Further texting between Detective
Hardner and 9983 ensued but Detective Hardner was unsuccessful
in setting up a drug transaction.
On January 6, 2018, after learning Yurkewicz died, Detective
Hardner used Yurkewicz’s cell phone in another attempt to reach
9983. The content of the text messaging of January 6, 2018
between Detective Hardner, from Yurkewicz’s cell phone, and the
person who was using the cell phone associated with 9983 was
introduced into evidence as Commonwealth Exhibit 12. Detective
Hardner testified concerning these texts as follows:
MR. SELLERS: Okay. Can you read for the jury these text
message conversations, and indicate which ones are from
you and which ones are from the other number?
-3-
J-S75004-19
HARDNER: I’m sending the blue messages, and the
messages on the other end are the yellow.
HARDNER: I texted, yo. He responded, sup. I said, got 100
just waiting for a ride. He said, okay bro. I said, ready
where should I go.
MR. SELLERS: All right. Next slide.
HARDNER: He said, okay what you got bro. I said 100. And
then when I didn’t have a response, I sent a question mark.
And then he said, meet me on 24. I said, K, and then, pulling
up.
MR. SELLERS: Next slide.
HARDNER: Then I said, I’m in my step-mom’s blue truck.
Consistent with the above texts, Detective Hardner drove to East
24th Street between German and Parade Streets in a blue
undercover vehicle and pulled over to the side of the road.
Several back-up officers were stationed in vehicles nearby. A
white Audi was observed traveling west along East 24th Street in
the same block where Detective Hardner was parked. The Audi
pulled over and Appellant, the front-seat passenger, exited the
Audi and entered a residence at 344 East 24th Street, later
learned to be Appellant’s mother’s residence. [Appellant resided
next door at 348 East 24th Street.] Appellant returned to the Audi
a few minutes later and got into the front passenger seat. The
vehicle operator drove the Audi further west along 24th Street,
passing Detective Hardner’s blue vehicle, and pulled over a few
car-lengths ahead of Detective Hardner’s vehicle. At this time,
Detective Hardner received a telephone call on Yurkewicz’s cell
phone from 9983. The male caller instructed Detective Hardner
to exit the vehicle and come over to the “white car”. Detective
Hardner notified the back-up officers who then approached the
white Audi.
From the front of the Audi, Detective Fiorelli, one of the back-up
officers, observed through the front windshield Appellant leaning
forward in the passenger seat “making furtive movements with
his arms towards the floorboards of the front passenger’s seat.”
Appellant and the driver, Javar Beason, were arrested. Detective
Fiorelli observed a white powdery substance on the right leg of
Appellant’s black sweatpants, which Appellant kept trying to brush
off. Detective Fiorelli observed on the floor mat on the front
passenger side a chunky substance with powder residue on top.
The substances on the floor mat were collected for analysis which
revealed the substances contained heroin and fentanyl. During
the search of the vehicle, Detective Fiorelli located a folded-up
piece of white paper, torn from a larger piece of paper, which had
been folded over several times with creases in it. Detective Fiorelli
testified this was a very common way of packaging heroin or
fentanyl. Detective Fiorelli recovered an iPhone in a red and black
-4-
J-S75004-19
case from a cupholder in the center console between the driver’s
and passenger’s seats. During the search of Appellant, the police
found a wallet containing $65.00 in U.S. currency, Appellant’s ID,
a cell phone, and another $1,020.00 in U.S. currency “in a stack.”
During the search of Beason, the police recovered $70.00 and
Beason’s cellphone.
The items recovered during the searches were brought to the
police station. There, Detective Hardner called 9983 from his
personal cell phone whereupon the iPhone in the red and black
case rang. Detective Hardner determined this iPhone was the cell
phone associated with 9983, the same number which Detective
Hardner had engaged in communication with from Detective
Hardner’s cell phone on January 5, 2018 and from Yurkewicz’s cell
phone on January 6, 2018.
At trial, the Commonwealth witness Detective Styn testified
regarding Verizon call and text records from 9983. Detective Styn
confirmed the report from Verizon included text message
exchanges between 9983 and unidentified third parties on January
5 and January 6, 2019.
Detective Fiorelli testified from Verizon records as to the contents
of these text message exchanges. The texts described other drug
transactions with 9983, some set up to occur in the vicinity of 24th
and German Streets. The texts clearly contained references to
the use and exchange of narcotics. Commonwealth witness
Detective Benacci, an expert witness in drug transactions and
sales, testified the texts between 9983 and third parties and
between 9983 and Yurkewicz were evidence of drug dealing.
Detective Fiorelli also testified about a text exchange of a personal
nature between 9983 and a third party during the relevant
timeframe. In the texts, the third party addressed Appellant by
name, “Dion,” and 9983 responded “sup.”
Trial Court Opinion, 4/8/19 at 1-8 (footnotes and record citations omitted).
Appellant was arrested and charged with drug delivery resulting in death,
PWID (fentanyl), possession of drug paraphernalia, possession
(heroin/fentanyl), tampering with or fabricating physical evidence, PWID
(heroin and/or fentanyl) and criminal use of communication facility. 2
Following a multi-day trial, a jury found Appellant guilty of only PWID (heroin
____________________________________________
218 Pa.C.S.A. § 2506, 35 P.S. § 780-113(a)(30) and (16), 18 Pa.C.S.A. §
4910(1), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 7512(a), respectively.
-5-
J-S75004-19
and/or fentanyl), tampering with or fabricating physical evidence, and criminal
use of communication facility. On December 21, 2018, the trial court
sentenced Appellant to an aggregate term of 50 to 107 months and 15 days
in prison. Appellant filed post-sentence motions, which the trial court denied
on January 2, 2019. Appellant timely appealed. On February 4, 2019, the
trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement within 30
days. Appellant complied.3 In response, the trial court issued a detailed
Pa.R.A.P. 1925(a) opinion. On June 6, 2019, upon Appellant’s application, we
remanded this case to the trial court to permit Appellant to amend his Rule
1925(b) statement. In his amended Rule 1925(b) statement, Appellant
challenged the sufficiency of the evidence underlying his convictions. On
August 15, 2019, the trial court issued a supplemental Rule 1925(a) opinion
addressing Appellant’s sufficiency claims.
On appeal, Appellant presents three issues for our review.
[I.] Whether the trial court committed an abuse of discretion
and/or error of law in admitting the text messages received by
and sent from the cell phone recovered from the white Audi in
violation of Commonwealth v. Koch[, 106 A.3d 705 (Pa. 2014)]
as they were not properly authenticated?[4]
____________________________________________
3He filed his Rule 1925(b) statement on February 28, 2019, well within the
30-day deadline established by the trial court’s February 4, 2019 order.
4 We have explained:
Our standard of review over evidentiary rulings requires us to
determine whether the trial court abused its discretion. An abuse
of discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of
-6-
J-S75004-19
[II.] Whether the Commonwealth failed to present sufficient
evidence to find Appellant guilty beyond a reasonable doubt of
PWID, tampering with/fabricating physical evidence, and criminal
use of communication facility?[5]
[III.] Whether Appellant’s claims on appeal should be
dismissed/quashed due to the fact that Appellant filed an untimely
1925(b) statement?[6]
Appellant’s Brief at 3 (unnecessary capitalizations omitted).
____________________________________________
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.
Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa. Super. 2007) (internal
citations omitted), appeal denied, 955 A.2d 356 (Pa. 2008).
5“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the evidence
is whether 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 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 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 actually received must be
considered. Finally, the finder 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal
denied, 95 A.3d 275 (Pa. 2014).
6As noted in the text, Appellant filed a timely Rule 1925(b) statement and, as
a result, we need not decide his third issue on appeal.
-7-
J-S75004-19
After careful review of the record and the relevant case law, we conclude
that the trial court accurately and thoroughly addressed the merits of
Appellant’s issues on appeal. See Trial Court Opinion, 4/8/19, at 10-21;
Supplemental Opinion, 8/15/19 at 2-8. With respect to Appellant’s first issue,
we conclude that the trial court did not abuse its discretion in overruling
Appellant’s authentication challenge7 and admitting into evidence the text
messages recovered from the cell phone in the white Audi. As the trial court
concluded:
There was sufficient testimony from witnesses with knowledge
demonstrating the cell phone was what it was purported to be –
Appellant’s cell phone. Detective Fiorelli testified that the iPhone
in the red and black case was recovered next to Appellant’s seat
in the vehicle, and the iPhone was connected to the number 9983.
There was significant contextual clues and circumstantial evidence
corroborating that Appellant was the author of the text messages
at issue. This included: the texts between Yurkewicz and 9983 .
. .; the contents of texts between third parties and 9983 using
slang terms consistent with drug dealings, where 9983 set up the
location for the transaction in areas near Appellant’s home; and
third party texts identifying Appellant by name to which he
responded affirmatively. Most significantly, at the time and place
of the undercover drug deal between the author of texts from
9983 and Detective Hardner, Appellant arrived in a white Audi in
possession of heroin and fentanyl.
Trial Court Opinion, 4/8/19 at 14. Relating to Appellant’s sufficiency
challenges, we agree with the trial court’s conclusion that, based upon the
record evidence viewed in a light most favorable to the Commonwealth as the
verdict winner, the Commonwealth proved beyond a reasonable doubt that
Appellant committed PWID, tampering with or fabricating physical evidence,
____________________________________________
7“Authentication generally entails a relatively low burden of proof.” Koch,
106 A.3d at 713.
-8-
J-S75004-19
and criminal use of communication facility. Accordingly, we affirm the trial
court’s December 21, 2018 judgment of sentence. We further direct that a
copy of the trial court’s April 8, 2019 and August 15, 2019 opinions be
attached to any future filings in this case.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2020
-9-
Circulated 02/27/2020 02:04 PM
COMMONWEAL1H OF PENNSYLVANIA IN 1HE COURT OF COMMON PLEAS
OF ERIE COUNTY, PENNSYLVANIA
v.. CRIMINAL DMSION
C} n
,...• ,·--
(")
·-- -·•-"..,:
....-·-;. �
--
=
........
·=
,n-
P1
�,-
-i:;;.;;t
: :, �:"
:::;:_:)
rrt -:;
3:
..
DIONELUAHWAYNE NO. 697 -2018 ... r··;, -·
.. :, r--
- co
l C)
-q
�,
........ I
--:_;·� CJ
•· .. ::Y)
,_ ···-., J::� r
("'-)
' '
.... -- -
- --- C)
.'..l)
''�...".)J CJ
(,'>
OPINION
This matter is before the Court on Appellant's 192S(b) Concise Statement of Matters
Complained of on Appeal. For the reasons set forth below, the judgment of scntmce should be
affirmed.1
FACTUAL BACKGROUND
On January S, 2018, Adam Yurkewicz's grandmother found Yurkewicz UDCODSCious in
the bathroom of her residence at 815 Michigan Avenue, Erie, Pennsylvania. Tramcript of
Proceedings, Day 2, November 14, 2018 (l'r. Day 2).pp. 70-77. The gnmdmotber telephoned
911 and the Millcreek Township Police were dispatched to the residence. Tran.tcrlpt of
2
Proceedings, Day 1, November 13, 2018 (l'r. Day 1) pp. 117-120. Detective Ryan PJeSDer
was the first police officer to arrive at the scene. Upon arrival, Detective Prcsner observed
Yurkewicz on the floor. Yurkewicz had a ''bluish-purple tint" and was surrounded by
firefighters who were checking for a pulse. Tr. Day 1, p. 118. Presner also obsened a partially
loaded syringe in the bathroom sink. Tr. Day 1, pp. 120-127.
1
The Honorable William R. Cunningham presided at the jury bia1, sentmced Appellant, IDd issued 1be 1925(1,)
Order. Judge Cunningham also addressed the post-sentence motion. Due to lhe recent remwae:m or Judee
Cunningham, this matter was reassigned to the undersigned for pieparmoo. oflhe 192S(a) Opinion.
2
Detective Presner was employed by the Millcreek Township Police Depmtment as a patrol officer ll lhe time.
a. Discovery ofAdam Yurkewic:.'s cell pl,one-Janary S, 2011
Yurkewicz was placed in an ambulance where Presner went through Yurkewicz's
pockets and recovered a cell phone and a pack of cigarettes which contained a folded-up piece of
paper holding a white, chalky substance. Tr. Day l, pp. 128-131. Yurtewicz was tnmspolted to
UPMC Hamot Hospital where he died early the following mofflin& on January 6, 2018. It was
determined Yurkewiczdiedfromanoverdoseoffentanyl. See Tr. Day l,pp. 150-181.
Presner turned over Yurkewicz's cell phone to Detectives Hanlner and Fion:lli of the
Special Investigations Unit of the Millcreek Police Department when they arrived at the scene.
Tr. Day 1, pp. 130-131. Detective Hardner examined the call log and text messages on lhc ccll
phone to determine whether a transaction involving drugs had occurred. Tr. Day l, p. 184. He
read text messages exchanged during the morning of January 5, 2018 between Yurkcwicz's cell
phone and the telephone number "814-449-9983" (hereinafter 9983). Tr. Day l, pp. 184-185.
Detective Hardner found 9983 was entered in Yurkewicz's contact information under the name
"Louis". Tr. Day 1, p. 232. Based upon the content of these messages and Dcta:ti� Hardner's
experience in narcotics investigations, he determined 9983 was a "phone nmnber of intaat'
with regard to the investigation surrounding Ymkewicz's death. Detective Anne Styn exlnlded
contents of the cell phone including the text messages, call logs, photographs, a web history,
Facebook and Snapchat accounts associated with Yurkewicz, and a Gmail account with the email
address Yurks42589. Tr. Day 2, p. 131.
b. Communications sentfrom and received on Ylll'UWicz'.s cdJ pl,ow - J.._,, S, 2111
At trial, the Commonwealth presented testimony from Yurkewicz's fiancce, Kayla Turk.
Tr. Day 2, pp. 106-119. Turk was familiar with Yurtewicz's cell phone and testified she was
present when Yurkewicz was sending text messages from his cell phone the morning of Janmry
2
5, 2018. Tr. Day 2, pp. 111-112; 116-117. Turk also identified Commonwealth Exhibit 18 as a
list of personal text messages between herself and Yurlcewicz on January 5, 2018. Tr. Day 2, pp.
111-114. The Commonwealth's witness Marlene Yurkewicz, the decedent's gnmdmotbcr,
testified as to calls she made to Yurkewicz's cell phone on January 5, 2018, that had been
recovered in Yurkewicz's cell phone records. Tr. Day 2, pp. 75-76; 134.
At trial, Detective Hardner testified concerning Commonwealth Exhibit 13, a
transcription of text messaging between Yurkewicz's cell phone and 9983, the aforanmtioncd
number of interest, from the morning of January 5, 2018. Tr. Day 1, p. 232. Deteclive Hardncr
testified these texts were highly indicative of drug dealing. Detective Hanlner tcstificd about lhc
content of the text messages as follows:
MR. SELLERS: All right. Again, Detective, tell the jury which of these
messages come from Adam Yurkewicz and.which of them go to the number
identified as Louis.
HARDNER: Adam Yurkewicz is the blue messages, and the Louis phone
number is the one in yellow.
MR. SELLERS: And can you read them for us?
HARDNER: Yes. Adam says, yo. The guy responds, sup. He says, WY�
where you at. He says, over east. He say� on my way.
MR. SELLERS: Next slide.
HARDNER: What you needed? He responds, 60. Where should I go, then
question mark. Bout to be on the east. He responds, 25 German.
MR. SELLERS: Next slide.
HARDNER: He says, K. Be like 10 to l 5. How much for the half. He says,
80 bro. Then, K.
MR. SELLERS: Next slide.
HARDNER: Then, give me that. He says, yup. He says, bout to pull up. He
says, okay. Here. Then, 24 German between Parade.
3
MR. SELLERS: Can you read that for us?
HARDNER: K. Here. And then, you good bro.
Tr. Day 1, pp. 232-234.
Pings to cell phone towers from Yurkewicz's cell phone placed Yurkewicz in the ma of
24th and German Streets at approximately the same time he received the text messages 6om 9983
directing him to meet there for the transaction. Tr. Day 1, pp. 232-234; Tr. Day 2, pp. 226-227.
c. Communications between Detective Hartbtn's cdl pl,oM (fro,,, 11 ,.....,,,
generated number) and "9983" - January 5, 2018
During the afternoon of January 5, 2018, Detective Hanmer texted 9983 from a random
telephone number generated by a special application on Detective Hardner's cell phone in an
effort to set up a drug transaction with the person who was using the cell phone associa1cd with
9983. Tr. Day l, pp. 185-188. Detective Hardner received a telephone call from a male caDing
from 9983. Further texting between Detective Hardner and 9983 ensued but· Detective Hamner
was unsuccessful in setting up a drug transaction.
ti. Communications between Yurkewicz's all pl,OM (lltilizd by Ddtdhe
Har,Jner) and "9983" - January 6, 2018
On January 6, 2018, after learning Yurkewicz died, Detective Hanlner used Ywkewicz:r
cell phone in another attempt to reach 9983. Tr. Day l, pp. 189-191. The content of the text
messaging of January 6, 2018 between Detective Hardner, from Yurkewicz9s cell phone, and the
person who was using the cell phone associated with 9983 was introduced into evidence as
4
Commonwealth Exhibit 12. Tr. Day 1, p. 201. Detective Hardner testified cona:ming 1hcsc
texts as follows:
MR. SELLERS: Okay. Can you read for the jury these text message
conversations, and indicate which ones are from you and which ones an: from
the other number?
HARDNER: I'm sending the blue messages, and the messages on the other
end are the yellow.
HARDNER: I texted, yo. He responded, sup. I said, got 100 just waibng for a
ride. He said, okay bro. I said, ready where should I go.
MR. SELLERS: All right. Next slide.
HARDNER: He said, okay what you got bro. I said l 00. And then when I
didn't have a response, I sent a question mark. And then he said, meet me on
24. I said, K, and then, pulling up.
MR. SELLERS: Next slide.
HARDNER: Then I said, I'm in my step-mom's blue truck.
Tr. Day 1, pp. 201-202.
e. Recovery of the cell phone associated with tl,e •lllllber "fflJ" - Ja,,.,., 6,
2018
Consistent with the above texts, Detective Hamner drove to East 24111 Street bctwi,ea
German and Parade Streets in a blue undercover vehicle and pulled over to the side of the road.
Tr. Day 1, pp. 191-197. Several back-up officers were stationed in vehicles nearby. Tr. Day J, p.
194. A white Audi was observed traveling west along East 24111 Street in the same block where
Detective Hardner was parked. Tr. Day 1, pp. 195-196; Tr. Day 2, pp. 13-14; 151-152. The
Audi pulled over and Appellant, the front-seat passenger, exited the Audi and enten:d a ICSidmce
at 344 East 24th Street, later learned to be Appellant's mother's residence.3 Appelhmt retumc:d to
3
The police later learned Appellant resided next door to his mother at 348 East 246 S1reet with his pmdmodrcr. n-.
Day 2, pp. 246-247.
5
the Audi a few minutes later and got into the front passenger seat. The vehicle opcndur drove
the Audi further west along 24th Street, passing Detective Hardner's blue vehicle, and pulled
over a few car-lengths ahead of Detective Hardner's vehicle. Tr. Day J, p. 195. At this�
Detective Hardner received a telephone call on Yurkewicz's cell phone tiom 9983. Tr. Day I, p.
196. The male caller instructed Detective Hardner to exit the vehicle and come over to the
''white car". Tr. Day 2, pp. 189-197. Detective Hardner notified the back-up officers who then
approached the white Audi.
From the front of the Audi, Detective Fiorelli, one of the back-up offi� observed
through the front windshield Appellant leaning forward in the passenger seat "making furtive
movements with his arms towards the floorboards of the front passenger's seat." Tr. Day 2. p.
153-154. Appellant and the driver, Javar Beason, were arrested. Detective Fiorelli observed a
white powdery substance on the right leg of Appellant's black sweatpants, which Appellant kept
trying to brush off. Tr. Day 2, p. 156. Detective Fiorelli observed on the floor mat on the ftont
passenger side a chunky substance with powder residue on top. The subscances on the floor mat
were collected for analysis which revealed the substances contained heroin and fmtanyl. Tr. Day
2, pp. 233-235. During the search of the vehicle, Detective Fiorelli located a folded-up piece of
white paper, tom from a larger piece of paper, which bad been folded over several times with
creases in it. Detective Fiorelli testified this was a very common way of p,ckaging heroin or
fentanyl. Tr. Day 2, pp. 15 7-161. Detective Fiorelli recovered an iPhone in a red and black case
from a cupholder in the center console between the driver's and passenger's seats. Tr. Day 2, pp.
162-164. During the search of Appellant, the police found a wallet containing S6S.OO in U.S.
currency, Appellant's ID, a cell phone, and another $1,020.00 in U.S. cunmcy "in a stack." Tr.
6
Day 2, pp. 164-166. During the search of Beason, the police recovered $70.00 and Bcason's
cellphone. Tr. Day 2, pp.39-40; 164.
The items recovered during the searches were brought to the police station.. There,
Detective Hardner called 9983 from his personal cell phone whereupon the iPbone in the red and
black case rang. Tr. Day 2, pp. 166-167. Detective Hardner detennined this iPbone was the cell
phone associated with 9983, the same number which Detective Hanlner bad c:ngagt"J1 in
communication with from Detective Hardner's cell phone on January S, 2018 and from
Yurkewicz's cell phone on January 6, 2018. Tr. Day J, p. 167.
f. Communications between "9983" and 1111ukntijkd tJ,irtJ partia - Ja_,, S
and January 6, 2018
At trial, the Commonwealth witness Detective Styn testified iegarding Vcrimn call and
text records from 9983. Tr. Day 2, pp. 121-129. Detective Styn con.fumed the ieport from
Verizon included text message exchanges between 9983 and unidentified third parties on January
5 and January 6, 2019.
Detective Fiorelli testified from Verizon records as to the contents of dlCSe text message
exchanges. Tr. Day 2, pp. 168-186. The texts described other drug transactions with 9983, some
set up to occur in the vicinity of 24th and German Streets. The tex1s clearly contained references
4
to the use and exchange of narcotics. Commonwealth witness Detective Bmacci, an expert
witness in drug transactions and sales, testified the texts between 9983 and thud parties and
between 9983 and Yurkewicz were evidence of drug dealing. 7r. Day 2, pp. 251-293. Dcteclive
Fiorelli also testified about a text exchange of a personal nature between 9983 and a dmd party
4
See Tr. Day 2, pp. 178-179 and Commonwealth Exhibit 28; Tr. Day 2, pp. 183-186 and Coio11iOll"Clbb Exhibit
30
7
during the relevant timeframe. In the texts, the third party addressed Appellant by name, "Dion,"
and 9983 responded "sup." 5
PROCEDURAL BACKGROUND
Following his arrest, Appellant was charged · with Drug Delivery Resulting in �
Possession With Intent to Deliver (fentanyl), Possession of Drug Paraphcmalia, Possession
(heroin and/or fentanyl), Tampering With or Fabricating Physical Evidence, Possession With
Intent to Deliver (heroin and/or fentanyl) and Criminal Use of Communication Facility. 6
On November 15, 2018, following a three-day jwy trial, Appellant was convicted of:
Tampering With or Fabricating Physical Evidence, Possession With Intent to Deliver (heroin
and/or fentanyl) and Criminal Use of Communication Facility.7
On December 21, 2018, Appellant was sentenced to an aggregate period of SO - 107
months and 15 days of incarceration as follows:
Count Five: Tampering With or Fabricating Physical Evidence - 8 months
to 23 months and 15 days of incarceration, consecutive to Count Seven.
Count Six: Possession With Intent to Deliver (heroin and/or fentanyl) - 21
months to 54 months of incarceration, consecutive to any other sentr:nce
currently being served.
Count Seven: Criminal Use of Communication Facility- IS months to 30
months of incarceration, consecutive to Count Six.
On December 27, 2018, Appellant filed a post-sentence motion and a Petition to
Withdraw as Counsel. The Court denied the post-sentence motion on Janumy 2, 2019. On
January 23, 2019, Appellant filed a Notice of Appeal. On February 4, 2019, the Court dirc:ctcd
5
See Tr. Day 2, pp. 172-175 and Commonwealth Exhibit 27
6
18 Pa.C.S.A. § 2506; 35 Pa.C.S.A. §780-113(a)(30); 3S Pa.C.S.A. §780-113(aX16); 18 Pa.C.S.A. §4910(1); 35
Pa.C.S.A. §780-113(a)(30); and 18 Pa.C.S.A. § 7S12(a), respectively.
7
18 Pa.C.S.A. §4910(1); 35 Pa.C.S.A. §780-113(a)(30); and 18 Pa.C.S.A. § 7S12(a), aespeaively.
8
Appellant to file a l 925(b) Statement of Matters Complained of on Appeal within 21 days.
Appellant filed a Statement of Matters Complained of on Appeal on February 28, 2019.1
Concurrently, Appellant's counsel filed another Petition to Withdraw a Counsel. On March 11,
2019, the Court granted the Petition to Withdraw and directed Appellant to oblain new legal
counsel or act as his own counsel for any future proceedings.
Paraphrased, Appellant's Statement of Matters Complained of OD Appeal identifies the
following issues:
1. Whether evidentiary error occurred in:
a) admitting into evidence text messages sent to and from the cell
phone of decedent, Adam Yurkewicz;
b) admitting into evidence text messages sent to and &om the cell
phoneAppellantused;and
c) "refusing to admit Defendant's 'Exhibit B' text messages" &om a
third party to decedent's cell phone.
2. Whether there was sufficient evidence for the jury to convict at Count
Seven, Criminal Use of Communication Facility.
3. Whether the Court "failed to hold a proper bearing on the Defendant's
Motion in Limine."
DISCUSSION
I. Untimely 1925(b) Statement
Appellant has waived review of the appellate claims as the I 925(b) Statanc:nt was
untimely. The Court issued a 1925(b) Order on February 4, 2019, directing Appellant to file and
serve a 1925(b) Concise Statement of Matters Complained of on Appeal within 21 days. This
was not done. Appellant's Statement of Matters Complained of OD Appeal was not filed IDdil
February 28, 2019. The claims are waived.
8
The 1925(b) Statement was due for filing on Monday, February 25, 2019.
9
Under the Pennsylvania Rules of Appellate Procedure, a Judge is permitted to grant an
extension of time to file a Statement "(u]pon application of the appellant and for good cause
shown". Pa.R.A.P. 1925(b)(2). To preserve claims for appellate review, Appellants must comply
whenever the trial court orders them to file a Statement of Matters Complained of on Appeal
pursuant to Rule 1925 or the result is automatic waiver. See Commonwealth v. Lord. 719 A.2d
306, 309 (Pa. 1998); also Commonwealth v. Castillo. 888 A.2d 775 (Pa. 2005). Here, the 192S(b)
was untimely and no request to extend the time for filing was submitted to the Court. Tberefift,
the issues raised in Appellant's Statement of Matters Complained of on Appeal are waived.
Pa.R.A.P. 1925(b); Hess v. Fox Rothschild, LLP, 925 A.2d 798, 804 (Pa. Super. 2007).
Assuming arguendo there is no waiver due to the untimely I 92S(b) S� the is.,ues
raised in Appellant's 1925(b) Statement shall be addressed ad seriatim.
Il. Claims of Evidentiary Error
Appellant makes multiple claims of evidentiary error regarding the Comt's rulinp on the
admissibility of certain text message exchanges. See 1925(1,) Statement, 11 I, 2 and J.
Appellant's claims are meritless.
A. Relevant Legal Principles
Except as otherwise provided by law, all relevant evidence is admissible. Pa.R.E. 402.
The threshold inquiry with admission of evidence is whether the evidence
is relevant. Evidence is relevant if it logically tends to establish a mataia1
fact in the case, tends to make a fact at issue more or less probable, or
supports a reasonable inference or presmnption regarding the existmcc of
a material fact. In addition, evidence is only admissible where the
probative value of the evidence outweighs its prejudicial impact.
10
Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (internal citations and quotation
marks omitted). Evidence is not unfairly prejudicial simply because it may be harmful to the
defendant's case. Id.
Also, as appropriate, evidence must be properly authenticated. "(T]he proponent must
produce evidence sufficient to support a finding that the item is what the proponent claims it is."
Pa.R.E. 901(a). This can include testimony by a witness with knowledge of the item that the item
is what it is claimed to be. Pa.R.E. 901 (b)( 1 ).
Text messages may be authenticated by: (1) testimony of the author or sender; (2)
circumstantial evidence, including distinctive characteristics tending to identify the IIUlbor or
sender or references to events preceding or following the messages; or (3) any other facts or
aspects of the messages that signify they are what the proponent claims them to be.
Commonwealth v. Mu"ay, 174 A.3d 1147, 1156-57 (Pa. Super. 2017), appeal dt!ni«.I, 187 A.3d
204 (Pa. 2018); see also Pa.R.E. 901.
1. Text messages sent from and received on Yarkewkz'1 c:ell phone
First, Appellant claims it was error to admit text messages dated January S, 2018 which
were sent from and received on Yurkewicz's cell phone, which was assigned the number 814-
520-3540.9 Appellant claims error occurred because "the Commonwealth was unable to
authenticate the text messages ... as they were unable to prove the author(s) of the text messages
sent from ... [and) received by cell #814-520-3540. 1925(b) Stalement, 11.
Appellant's first claim of evidentiary error is waived as vague. If not waived, AppeUhmt S
9
evidentiary claim is wholly without merit. Assuming arguendo error occurred, it was barmles.,
error.
9
It is undisputed the decedent, Adam Yurkewicz, was the owner of the cell phone associaled with 1be IIIDbel' 114-
520-3540. 1r. Day I, p.22.
11
Appellant's evidentiary claim is waived as vague. In the 1925(b) Statcmcot, Appellant
only provides Yurkewicz's cell phone number with no context or reference to specific enoa in
the record. A concise statement which is too vague to allow the comt to identify the issues
raised on appeal is the functional equivalent of no concise statement at all. CotnlllOR'Wealth v.
Reeves, 907 A.2d I, 2 (Pa.Super. 2006), appeal denied, 919 A.2d 956 (Pa. 2007). The court's
review and legal analysis can be fatally impaired when the comt has to guess at the issues raised.
Id If a concise statement is too vague, the court may find waiver. Id Appellant's claim of
evidentiary error is not specific enough for the Court to adequately add.reM, and tben:fore the
claim is waived as vague.
If this claim is not waived for vagueness, Appellant's claim is without merit. Any claim
that text messages sent from and received by Yurkewicz' s cell phone were not properly
authenticated must fail. There was more than sufficient testimony from wimesses with
knowledge demonstrating the cell phone was what it was purported to be - Yurkewicz's cell
phone. This included testimony from Yurkewicz's fimde, Kayla Turk, who confinned text
exchanges between herself and Yurkewicz on January 5, 2018 and Yurkewicz's gnmdmothcr,
Marlene, who confirmed the phone calls she and Yurkewicz had the morning of January S, 2018;
testimony from Detective Presner that he had recovered the cell phone at issue from Ymkewicz's
pocket; and testimony from Detective Styn regarding the data, including personal social media
accounts and email associated with Y urkewicz, extracted from the cell phone.
Also, there was significant circumstantial evidence corroborating that not only was it
Yurkewicz' s cell phone, but that Yurkewicz was indeed the author of the text messages at issue.
This included evidence, previously discussed herein, of text messages with 9983 indicative of a
drug transaction and pings from Yurkewicz's cell phone putting him in the area of 24 and
1111
12
German when the deal with Appellant was set to occur. When Yurkewicz's body was found, a
loaded syringe was found in the nearby sink and a packet of fentanyl was found in bis pocket.
The circumstantial evidence sufficiently identifies Yurkewicz as the author of the text musagcs
based on the references to the events preceding and following the text messages and the
surrounding facts of the case. The text messages sent from and received on Ymtewicz's cell
phone were properly authenticated and there was no error in their admission. Appellant's claim
of error must be dismissed.
Assuming arguendo the text messages on Yurkewicz's cell phone were not properly
authenticated, it was harmless error to admit them. A primary pmpose in introducing the text
messages from Yurkewicz's cell phone was to establish a line of communication between
Appellant and Yurkewicz, linking Appellant to Yurkewicz's death. Appellant was acquitted of
the charge relating to Yurkewicz's death, Count One - Drug Delivery Resulting in Death. Also,
Appellant was acquitted of the following charges arising from alleged activities of Jammy S,
2018: Count Two - Possession With Intent to Deliver (fentanyl), Count Three - Posseaion of
Drug Paraphernalia. and Count Four - Possession (heroin/fentanyl). Therefore, the identity of
the author of text messages on Yurkewicz's cell phone is of no consequence and no JR.iudice
occurred to Appellant by their admission.
2. Text messages sent from and received on the ceD p•one woeiated
with 9983.
Second, Appellant claims it was error to admit text messages dated January S, 2011 and
January 6, 2018 which were sent from and received on a cell phone with a number ofl14-449--
9983. Appellant claims error occurred because ''the Commonwealth was unable to authc:nticalc
the text messages . . . as they were unable to prove the author(s) of the text messages sent from
... [and] received by cell# 814-449-9983." 1925(b) Stalement. 112.
13
Appellant's second claim of evidentiary error is also waived as vague. Further.
Appellant's evidentiary claim is wholly without merit
Appellant's claim is waived as vague. Appellant's 192S(b) Statement docs not identify
where the specific issues complained of regarding the cell phone number 8 I 4-449-9983 are
found in the record or their significance in the outcome of the case. Appellant�s claim of
evidentiary error is not specific enough for the Court to adequately address, and tbeftfore the
claim is waived as vague. See Pa.R.A.P. 1925(b); Commonwealth v. Reeves, 907 A.2d at 2.
Assuming arguendo the claim is not waived as vague, the assertion the text messages
sent from and received by 9983 were not properly authenticated is meritless. Thete was
sufficient testimony from witnesses with knowledge demonstrating the cell phone was what it
was purported to be - Appellant's cell phone. Detective Fiorelli testified that the iPbonc in the
red and black case was recovered next to Appellant's seat in the vehicle, and the i.Phone was
connected to the number 9983. There were significant contextual clues and circumsaantial
evidence corroborating that Appellant was the author of the text messages at issue. This
included: the texts between Yurkewicz and 9983 and the ci.reumstances surrounding
Yurkewicz's death discussed above; the contents of texts between thiJd parties and 9983 using
slang terms consistent with drug dealing, where 9983 set up the location for the 1rBDsadions in
areas near Appellant's home; and third party texts identifying Appellant by name to which be
responded affirmatively. Most significantly, at the time and place of the undercover drug deal
between the author of texts from 9983 and Detective Hard.Der, Appellant arrived in a whi1e Audi
in possession of heroin and fentanyl.
Applying the relevant legal principles, the totality of the evidence was mon: than
sufficient to identify Appellant as the author of the text messages from 9983 based on the
14
references to the events preceding and following the text messages and the surrounding .as of
the case. The circumstantial evidence established Appellant authored the texts &om 9913. The
texts were properly authenticated and there was no error in their admission. Appellant's claim of
error must be dismissed.
Appellant asserts the cases of Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011).
ajj'd, 106 A.3d 705 (Pa. 2014), and Commonwealth v. Mangel, 181 A.3d 1154, 1159 (Pa. Super.
2018) require a different conclusion. Appellant's assertions are unpersuasive. In Koc� on an
issue of first impression, the Pennsylvania Superior Cowt considered what was required to
authenticate text messages. Commonwealth v. Koch, .39 A.3d at 1003. The Superior Court
concluded text messages are documents subject to the same requirements for authenticity as non-
electronic documents. Koch at 1004. The Court determined such authentication rcquha mon:
than mere confirmation that the number belongs to a particular person. Addilional
"[c]ircwnstantial evidence, which tends to corroborate the identity of the sender, is n:quilm."
Koch at 1005. In Koch, the Superior Court detennined text messages were admitted in error
where the Commonwealth's witness acknowledged he could not confirm the defendant was the
author of the texts and conceded the defendant did not write some of the messages. Notably, in
Koch, there were no contextual clues tending to reveal the identity ofthe tllllhor and no nidena
the defendant had written the text messages ("Glaringly absent in this case is any evidence
tending to substantiate that Appellant wrote the drug-related text messages." Koch at I OOS). In
the instant case, there was substantial circumstantial evidence pointing to Appellant as the author
of texts from 9983.
Mangel is largely inapplicable to the instant facts as it specifically concerned
authentication of social media. Commonwealth v. Mangel, 181 A.3d at 1159. However, the
15
Court in Mangel applied the Superior Court's reasoning in Koch in detamining the
authentication of social media evidence requires "direct or circumstantiaJ evidence that tends to
corroborate the identity of the author of the communication in question, such as testimony &om
the person who sent or received the communication, or contextual clues in the COllf1lf1lnical
tending to reveal the identity of the sender." Mangel at .1162 (emphasis added). Apin, the fads
and holding of Mangel do not support Appellant's claims under the facts of the instant case.
Appellant's claim must be dismissed.
3. Contents of 'Exhibit B' and "Jake B."
Appellant contends it was error to refuse ''to admit Defendant's 'Exhibit 8', text
messages from 'Jake B' to the decedent's cell phone". Appellant appean to claim 'F.xlnmt B'
would have "delineat[ed] a separate source ofillegaJ narcotics". 1925(b) Statement, 1 J.
Appellant's claim is waived. Further, it lacks a factual basis. Assuming argueNlo the
claim is not waived, no error occurred.
The claim is waived as vague and underdeveloped. Appellant provides no ICfcrenccs to
the record of any attempt to introduce 'Exhibit B' or the Court's ruling thereon. Appeliant fails
to identify the significance of any such text messages other than to suggest they delinc::at.e a
separate source of illegal drugs. Appellant fails to identify how any other source of illepl
narcotics would have changed the outcome of this case. Appellant was acquitted of the charges
relating to the death of Yurkewicz. The Court cannot adequately address this issue for leek of
specificity. The claim is waived. Pa.R.A.P. 192S(b).
Similarly, Appellant's claim that the Court refused to admit 'Exhibit B' is factually
inaccurate and belied by the record Appellant provides no references to the record of any
16
10
attempt to introduce 'Exhibit B' or the Court's ruling thereon.
Even if 'Exhibit B' had been offered into the record and the Court refused its admission,
there was no error. 'Exhibit B' contained excerpts from Detective Styo's report regarding the
contents of Yurkewicz's cell phone. Initially, the Court did not permit Appellant to queslion
Detective Styn about any text messages from "Jake B" on the basis of relevancy. Tr. Day 2. pp.
134-135. However, the Court subsequently permitted Appellant to question Detectiw Styn
regarding 'Exhibit B' over the Commonwealth's objection:
MR. HOPKINS: Detective, did you pull the information contained in
Defendant's Exhibit B from the phone of Mr. Yurkewicz?
DETECTIVE STYN: Yes.
MS. ANGLIN: And Judge, I'm going to object to any reference to Defense's
Exhibit B. We have no objection to Exhibit A, but B we do have a problem
with.
MR. HOPKINS: I haven't asked her to read from it or say anything more
about it. Just that she did pull that information from the phone.
THE COURT: That's fine, as it relates to that question.
MR. HOPKINS: Thank you.
Tr. Day 2, p. 136.
The questioning regarding 'Exhibit B' continued:
MR. HOPKINS: Okay, so looking at Defendant's Exhibit 8, are you able to
tell us whether or not any additional messages that bad been deleted sdll -
had been overwritten after the third of January?
DETECTNE STYN: Is there a page number for that? I'm sorry.
MR. HOPKINS: Well, the messages begin on the sixth page, but the question
is, since all of the messages on Defendant's Exhibit B are IIIUked deleted
- is that right?
10
There is no indication in the record that 'Exlul>it B' was offered as an c:xlul>it or die Court rdbscd i1s m1am1ion.
Tr. Day 2, pp. 132-142.
17
DETECTIVE STYN: Yes.
MR. HOPKINS: -- are you able to tell us whether or not there WC1e further
messages from the phone number listed in Defendant's Exhibit B after the
third that were deleted, but didn't - weren't recoverable?
DETECTIVE STYN: No, I would not be able to tell you that.
MR. HOPKINS: So the phone conversation in this could've continued?
DETECTIVE STYN: Correct.
MR. HOPKINS: But based on the phone overwriting areas, we don't know?
DETECTIVE STYN: Correct.
MR. HOPKINS: Your Honor, I would again seek to go further.
THE COURT: That's a matter of pure speculation.
MR. HOPKINS: To be clear,just going with what we do have the records for-
THE COURT: I've already ruled on that.
MR. HOPKINS: Okay.
Tr. Day 2, p. 139-140 (emphasis added).
Appellant's counsel even elicited testimony from Detective Styn the texts on 'Exhibit B'
were deleted from Yurkewicz's cell phone. Tr. Day 2, p. 139. A fair reacting of Appellant's
cross-examination revealed all messages listed on 'Exhibit B' were deleted and 'Exhibit B'
showed no messages were retrieved after January 3, 2018. Given the latitude afforded to
Appellant's counsel in regard to questioning Detective Styn about 'Exhibit B'. Appellant was
free to advance any theory that messages from a third party source may have been deleted or
overwritten in Yurkewicz's cell phone. The only limitation placed on Appellant's cross,.
examination of Detective Styn was the inability to question Detective Styn about "Jake B", a
topic the Court determined was irrelevant and speculative. Appellant's claim is meritlea.
18
Assuming arguendo error occurred in precluding reference to "Jake en during
questioning of Detective Styn, this was harmless error. Per the 1925(b) Statancnt, it appears
Appellant's intention with 'Exhibit B' (excerpts from Detective Styn's rq,ort regarding the
contents of Yurkewicz's cell phone) was to suggest "Jake B" as a possible soun:e of illegal
narcotics for Yurkewicz. This is of no moment. Appellant was acquitted of Count One» Drug
Delivery Resulting in Death (Yurkewicz). Furthermore, the texts referenced in �Exln"bit B' were
deleted and no texts referenced on 'Exhibit B' were dated after January 3, 2018. Therefore, no
prejudice occurred and any claimed error was harmless. Appellant's claim must be dismissed.
m. Sufficiency of the evidence for conviction on co-t Seven - Crillmlal U1e of
Communication Facility.
Appellant asserts the evidence was insufficient for the jury to convict at Count Seven,
Criminal Use of Communication Facility, because ''the Court should not have erroneously
admitted the unauthenticated text messages". See J925(b) Statemenl, 1 4. This claim is without
merit and should be dismissed.
A. Sufr1eiency of the Evidence Standard
When evaluating a challenge to the sufficiency of the evidence, the Comt must ddcrmine
whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict
winner, together with all reasonable inferences from that evidence, the trier of fact could have
found each element of the crime charged was established beyond a reasonable doubt.
Commonwealth v. Hargrave, 145 A.Jd 20, 22 (Pa.Super. 2000), appeal derMd, 160 A2d ISi
(Pa. 2000)(internal citations omitted); Commonwealth. v. Brunson, 938 A.2d IOS7, 1058
(Pa.Super. 2007); Commonwealth v. Chambers, 599 A.2d 630, 633 (Pa. 1991). The
Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence.
19
Commonwealth v. Hopkins, 747 A.2d 910, 913 (Pa.Super. 2000). The facts and circums1ances
established by the Commonwealth need not preclude every possibility of innocence, and any
questions or doubts are to be resolved by the fact-finder, unless the evidence is so weak and.
inconclusive that, as a matter of law, no probability. of fact can be drawn man tbe combined
circumstances. Commonwealth v. Hopkins, supra at 913-14.
Viewing the evidence against this staadard, Appellant's contention is without merit.
B. Review of Evidence for Sufficiency Claims
Appellant's claim of sufficiency of the evidence is meritless and must be dismi,sed, The
factual basis for Criminal Use of Communication Facility at Count Seven is that on the morning
of January 6, 2018, Appellant, using phone number (814) 449-9983, bad contact with an
undercover officer regarding a drug transaction at the 300 block of F.ast 24111 Street, City of�
Erie County, Pennsylvania. Information.
To sustain a conviction for Criminal Use of Communication Facility (18 Pa. C.S.A. §
7512), the Commonwealth must establish the defendant: I) knowingly and intmtionally used a
communication facility; 2) knowingly, intentionally or recklessly facilitated an undc:rlying
felony; and 3) the underlying felony occurred. Commonwealth v. Moss. 852 A.2d 374, 382 (Pa.
Super. 2004). A "communication facility'' is defined as "a public or private insllrumen1ality used
or useful in the transmission of signs, signals, writing, images, sounds, data or intelligence of any
nature transmitted in whole or in part, including, but not limited to, telephone, wiR, radio,
electromagnetic, photoelectronic or photo-optical systems or the mail." 18 Pa. C.S.A. § 7512(c).
The elements of the crime were satisfied. Here, the record, viewed in the light most
favorable to the Commonwealth, established beyond a reasonable doubt that Appellant
20
knowingly and intentionally used the cell phone associated with 9983 to engage in a drug
transaction with undercover Detective Hanmer on January 6, 20!8. As recounted previously, the
record established Appellant had contact with Detective Hanmer regarding a drug transaction
occurring at 2411t Street between German and Parade Streets. At 9:19 a.m. on Janumy 6, 2018,
Detective Hardner texted "Yo" to 9983 using Yurkewicz's cell phone. See Common.ww:alth
Exhibit 12. At 9:54 a.m., Appellant responded "sup" and a conversation ensued regarding the
drug transaction. At 10:44 a.m., Appellant directed Detective Hmdner to "meet me on 24" at
which point Detective Hardner and back-up officers travelled toBest 24• Street between German
and Parade Streets. At 11 :04 am. Detective Hanmer texted "Pullin up". A white Audi was
observed driving down East 24th Street and briefly stopping at Appellant's mother's home
located on the same block. Appellant exited the vehicle, entered his mother's rcsidcoce, and
shortly thereafter returned to the vehicle. The white Audi moved further down the slft'.et and
parked on the side of the road in front of Detective Hardner's vehicle. Shortly 1bcreafter,
Detective Hardner received a phone call from 9983 with a male voice directing him to come to
the ''white car''. Appellant made suspicious movements in the vehicle just prior to arrest. Heroin
and fentanyl were found on the floor mat below the seat where he bad been sitting.
Also, Appellant was convicted of the felony offense of Possession With lntmt to Dcliw:r
(fentanyl) with regard to this specific transaction. There was sufficient evidence for the jury to
conclude the elements of Count Seven, Criminal Use of Communication Facility, were
established beyond a reasonable doubt. Appellant's claim must fail.
21
IV. Motion in Limine
Appellant claims error occurred in not holding a "proper hearing" on the Motion in
Limine.
Appellant claims this resulted in the admission of otherwise inadmissible text messages. See
1925(b) Statement, ,i 5.
Appellant's claim is waived as vague. Even if the claim is not waived, it is wholly
without merit.
Appellant's claim is waived for vagueness. Appellant fails to point to any requin:ment or
rule of law that was not followed. The Court is unable to analyze this issue. Thus, Appellant's
claim must fail. See Pa.R.A.P. 192S(b); Commonwealth v. Reeves, 901 A.2d at 2.
Assuming arguendo Appellant's claim is not waived, it is wholly without merit. "A
motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior Ill or
during trial, but before the e11idence has Htell offend." Commonwealth "· John.ron, 582 A.2d
336, 337 (Pa. Super. 1990), ajj'd, 534 Pa. 51, 626 A.2d 514 (1993), citing L. Packel & A.B.
Poulin, Pennsylvania Evidence§ 103.3 (1987) (emphasis added). Essentially, a motion in Um.me
is a vehicle to obtain a ruling on an evidentiary issue and a trial court may reserve its ruling until
trial, in which case the parties are prohibited from referring to the evidence during trial until the
court makes its ruling. See Commonwealth v. Metzer, 634 A.2d 228, 232 n, 3 (Pa. Super. 1993).
In the present case, the issues raised in Appellant's Motion in Limine were fully
considered by the Court and the Court made definitive rulings on the issues outside of the
presence of the jury. On October 31, 2018, Appellant filed a Motion in Liminc, seeking a ruling
that text messages dated January 5, 2018 sent from and received on a cell phone associated with
814-520-3540 (Yurkewicz), and text messages dated January 5 and January 6, 2018 sent fiom
22
and received on a cell phone associated with 814-449-9983 (9983), were inadmissible for lack of
authentication and as inadmissible hearsay. Appellant requested an evidentiary bearing on the
requests.
On November 13, 2018, before voir dire, the Court thoroughly addlased the claims in
the Motion in Limine. Tr. Day 1, pp. 6-36. The Court considered legal argument by the
Commonwealth and Appellant. Id. The Court determined the Commonwaltb met its "tbn:sbold
burden" in proffering a basis for authentication of the text messages, advising it would
nonetheless be incumbent upon the Commonwealth to proffer sufficient circumstantial evidence
at trial to establish authorship. See Tr. Day 1, pp. 23-24.
On November 13, 2018, during trial but before the contents of the texts were ptamted to
the jury, the Court held a sidebar regarding text message exchanges on Yurkewicz's phone on
January 5, 2018. Tr. Day 1, pp. 227-230. The Court found there was sufficient circumstantial
evidence to authenticate the texts. Id
During a recess on November 14, 2018, the Court addressed with counsel Appellant's
objection regarding authentication of text message exchanges on 9983. Tr. Day 2. pp. 61--69.
The Court determined the text message, "Dion", from a third party to 9983 was admissible for
the limited purpose of connecting or linking the cell phone with AppellanL Tr. Day 1, pp. U-65.
The Court also ruled the texts between the dates of January 5 and January 6, 2018, betwa:n thinl
parties and 9983 regarding a change in the drug supply, were relevant and admissible. Tr. Day 1.
pp. 68-69. The record demonstrates the Court appropriately addressed all of Appellant's claims
in the Motion in Limine. Appellant's claim is wholly without merit
23
CONCLUSION
For foregoing reasons, the judgment of sentence should be affirmed. The Ciak of Courts
is hereby directed to transmit the record to the Superior Court.
BY THE COURT:
Date
cc: District Attorney's Office
l\Jl?U,,,llefender,�srQffi�,:,;a.,:\·
Damon Hopkins, Esq.
24
COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS
OF ERIE COUNTY, PENNSYLVANIA'.�:.
r·ri J= �::; ·,. . . . .
..... ·--, ..
v. CRIMINAL DIVISION
DION ELUAH WAYNE NO. 697-2018
:_..-: (...J
Ul
SUPPLEMENTAL 1925{a) OPINION
This matter is before the Court on Appellant's Amended Statement of Matters
Complained of on Appeal filed on June 28, 2019. For the reasons set forth in this Court's
192S(a) Opinion filed on April 8, 2019 and the reasons set forth below, the judgment of sentence
should be affirmed.
BACKGROUND
On January 23, 2019, Appellant filed a Notice of Appeal. On February 4, 2019, the
Court directed Appellant to file a l 925(b) Statement of Matters Complained of on Appeal within
30 days.1 Appellant filed a Statement of Matters Complained of on Appeal on February 28,
2019. On April 8, 2019, this Court filed the 1925(a) Opinion in this matter. The opinion is
iocorpotated herein by reference.
On Jm1e 14, 2019, Appellant filed an Application for Relief with the Superior Court of
Pennsylvania, requesting leave to amend the 1925(b). On June 20, 2019, the Superior Court of
Pennsylvania remanded the record to this Court to allow Appellant to file an amended 1925(b),
and directed this Court to prepare a supplemental 1925(a) Opinion. On June 28, 2019, Appellant
I
Dis Cowl IIOfes an error was made in its original 1925(a) Opinion in calculating Appellant's original 1925(b)
SUllaDenl untimely. Appellant was granted 30 days, not 21 days, to file the l 925(b) Statement by Order of February
4, 2019. The 1925(b) SWement, filed on February 28, 2019, was therefore timely.
filed an Amended Statement of Matters Complained of on Appeal. This Opinion is in response
thcmo.2
Parap� Appellailt's Amended Statement of Matters Complained of on Appeal raises
issues regarding the sufficiency of the evidence, to-wit:
I. Whether there was sufficient evidence for the jury to convict at Count Six,
Possession With Intent to Deliver (heroin and/or fentanyl);
2. Whether there was sufficient evidence for the jury to convict at Count Five,
Tampering With or Fabricating Physical Evidence; and
3. Whether there was sufficient evidence for the jury to convict at Count Seven,
Criminal Use of Communication Facility.
DISCUSSION
The standard of review for the sufficiency of the evidence was previously set forth in the
Comt's original 1925(a) Opinion:
When evaluating a challenge· to the sufficiency of the evidence, the Court
must determine whether, viewing the evidence in the light most favorable
to the Commonwealth as the verdict winner, together with all reasonable
inferences from that evidence, the trier of fact could have found each
element of the crime charged was established beyond a reasonable doubt.
Commonwealth v. Hargrave, 145 A.3d 20, 22 (Pa.Super. 2000), appeal
denied, 160 A.2d 85 l (Pa. 2000)(internal citations omitted);
Commonwealth. v. Brunson, 938 A.2d 1057, 1058 (Pa.Super. 2007);
Commonwealth v. Chambers, 599 A.2d 630, 633 (Pa. 1991). The
Commonwealth may sustain its burden of proof by means of wholly
circumstantial evidence. Commonwealth v. Hopkins, 141 A.2d 910, 913
(Pa.Super. 2000). The facts and· circumstances established by the
Commonwealth need not preclude every possibility of innocence, and any
questions or doubts are to be resolved by the fact-finder, unless the
evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined circumstances.
Commonwealth v. Hopkins, supra at 913-14.
Opinion, April 8, 1019 at 19-10.
2
Tbc Amcodcd 192S(b) Statement flied on June 28, 2019 did not incorporate by reference the allegations in the
original 1925(1,) Stalement filed on February 28, 20,19.
2 ,
When viewed against this standard, Appellant's additional claims regarding the
sufficiency of the evidence must fail. Appellant's claims will be addressed ad seriatim.
1. Safflcie•cy of the evidence for conviction on Count Six - Possession Witlb.
Intent to Deliver (heroin and/or fentanyl).
Appellant asserts the evidence was insufficient for the jury to convict at Count Six,
Posseaion With Intent to Deliver (heroin and/or fentanyl), because " ... the Commonwealth
failed to present sufficient evidence that the controlled substance was ever in the possession of
Appellant, that the Appellant was aware of its presence, and/or that the Appellant possessed the
controlled substance with the intent to deliver it or furnish it to another." See Amended
Sla1emen1 ofMatters Complained ofon Appeal, ,r B9. This claim is without merit and should be
dismissed.
Appellant's claim of sufficiency of the evidence is meritless and must be dismissed. The
factual basis for Possession with Intent to Deliver (heroin and/or fentanyl) at Count Six is that on
January 6, 2018, Appellant, directly or by virtue of his complicity, did deliver or possess with
intent to deliver heroin and/or fentanyl to an undercover Millcreek Township Police Officer
posing as Adam J. Yurkewicz at the 300 block of East 241h Street, City of Erie, Erie County,
Pennsylvania. lnformaJion.
To sustain a conviction for Possession With Intent to Deliver (35 Pa.C.S.A. § 780-
l I 3(aX30)), the Commonwealth must establish the defendant: I) possessed a controlled
substance and 2) intended to deliver it. See Commonwealth v. Little, 879 A.2d 293, 297 (Pa.
Super. 2005). All of the facts and circumstances surrounding the possession are relevant and the
elements of the crime may be established by circumstantial evidence. Id "The Commonwealth
may meet its burden of proving a possessory crime by showing actual possession, constructive
3
possessio� or joint constructive possession. Commonwealth v. Hall, 199 A.3d 954, 960 (2018),
�al Mnied. 206 A.3d 1028 (Pa. 2019) (citations omitted). "Constructive possession'' has been
defined as the "ability to exercise a conscious domain over" an item and requires proof that the
defendant had knowledge of the existence and location of the item. Commonwealth v. Hall, 199
;
A..Jd at 96/. When" ... more than one person has access to the contraband, 'the Commonwealth
'
must introduce evidence demonstrating either [the defendant's] participation in the drug-related
activity or evidenct connecting [the defendant] to the ... areas where the drugs were kept'." Id.
:
The elements of control can be proven circumstantially by examining the totality of the
cireumstances. Id.
The elements of the crime were satisfied. Here, the record, viewed in the light most
favorable to the Commonwealth, established beyond a reasonable doubt that Appellant was in at
least constructive possession of heroin and/or fentanyl, as he had the ability to exercise conscious
domain over the drugs, he was aware of their existence and location within the vehicle, and
significant evi� existed demonstratingAppellant's participation in drug-related activity.
In its original I 925(a) Opinion, the Court exhaustively discussed the overwhelming
evidence establisbqig Appellant had engaged in text messages to arrange a drug transaction to
occtD' on January 6, 2018 at 24111 Street between German and Parade Streets. The evidence also
established Appellant resided only a few houses down from the location arranged for the drug
deal. Immediately' after the final texts arranging the delivery of the drugs, the white Audi
Appellant was traveling in stopped in front of his mother's residence and Appellant exited from
the ftont passenger seat of the vehicle. Shortly thereafter, Appellant re-entered the Audi and the
vehicle moved a little further down the road. Transcript of Proceedings, Day 2, November 14,
2018 (fr. Day 2) pp. 246-247. It was at this time the phone call directing the undercover officer
4
to the "white car"\ was received. Tr. Day 2, pp. 189·197. As officers were approaching the
vehicle to eff� an arrest, Appellant was observed leaning forward in the passenger seat
"making furtive m+vements with his arms towards the floorboards of the front passenger's seat"
Tr. Day 2, pp. I 5JJJ54.
!
When Appellant was removed from the front passenger seat of the white
Audi for arrest, he kept trying to brush off a "white powdery substance" from the right leg of his
I
I
sweatpants. Tr. .l)qy 2, p. 156. Upon a search of the vehicle immediately following Appellant's
j
am:st, a "chunky �ubstance
I
with powder residue on top'' was located on the floor mat on the
l
front passenger sictb of the Audi. Id Subsequent testing revealed the substance recovered from
I
the passenger fl� contained heroin and fentanyl. Tr. Day 2, pp. 233·235. A folded-up white
piece of paper, consistent with a common way of packaging heroin or fentanyl, was also
recovered from the passenger floor of the vehicle. Tr. Day 2, pp. 15 7• 161. The search of
Appellant's person recovered, among other things, $1,020.00 of US currency "in a stack," Tr.
Day 2, pp. 164· 166.
When viewed in the light most favorable to the Commonwealth, the evidence was
sufficient to establish beyond a reasonable doubt that Appellant was in constructive possession
of heroin and/or featanyl and intended to deliver the drugs. Appellant was the passenger in the
white Audi that arrived at 24th Street between German and Parade Streets on January 6, 2018 to
complete a drug d$1. It is also indisputable that a substance was found on the passenger's side
floor mat of the Audi that tested positive for heroin and/or fentanyl. Although he was not the
only occupant of the vehicle, Appellant had at least equal access to the drugs and the drugs were
found in close proximity to where Appellant was sitting in the vehicle. The white piece of paper,
consistent with dn1g packaging, was also right below where Appellant had been sitting.
Appellant's behavior was suspicious, as suddenly upon realizing the police were closing in he
5
began making "furtive movements with bis arms" in the direction of the floorboard. No drug
parapbemalia was found indicating the drugs were for personal use. An unusually large stack of
cash was found in Appellant's pockets. These facts and circumstances established Appellant
possessed the heroin and/or fentanyl with the intent to deliver in violation of the statute.
AppeUant's claim must fail.
l. Saflideney of the evidence for conviction on Count Five - Tampering With
or Fabricating Physical Evidence
AppeUant asserts the evidence was insufficient for the jury to convict at Count Five,
Tampering With or Fabricating Physical Evidence, because " ... the Commonwealth failed to
establish that the Appellant was even in possession of heroin/fentanyl at the time of his arrest ...
[and] failed to establish that the Appellant did anything to destroy and/or conceal heroin/fentanyl
from being discovered in the vehicle." See Amended Statement of Matters Complained of on
Appeal, 1 BIO. This claim is without merit and should be dismissed.
Appellant's claim of sufficiency of the evidence is meritless and must be dismissed. The
factual basis for Tampering with or Fabricating Physical Evidence at Count Five is that on
January 6, 20l8, Appellant emptied heroin and/or fentanyl from a folded white piece of paper
onto the floor of the vehicle at the 300 block of East 24th Street, City of Erie, Erie County,
Pennsylvania. Information.
In relevant part, a person is guilty of Tampering With or Fabricating Physical Evidence if,
believing that an official proceeding or investigation is pending or about to be instituted, he
conceals or removes any thing with the intent to impair its verity or availability in such
procccding or investigation. 18 Pa.C.S.A. § 4910(1).
6
The eleme$ts of the crime were satisfied. Here, the record, viewed in the light most
favorable to the Commonwealth, established beyond a reasonable doubt that Appellant attempted
to conceal or impair the availability of contraband in connection with a pending investigation.
As discussed aboff, the evidence established Appellant constructively possessed heroin and/or
fentanyl with the intent to distribute it. At the time of the drug deal, when Appellant realized he
had been caught in a drug sting, he hurriedly attempted to dispose of the drugs before the police
reached the vehicle. Appellant was observed making "furtive amt movements" toward the
pas.,cngcr side floorboard of the vehicle, where subsequently heroin and/or fentanyl were found.
The evidence was sufficient for the jury to conclude the elements of Count Five, Tampering
Wrtb or Fabricating Physical Evidence, were established beyond a reasonable doubt. Appellant's
claim must fail.
3. Saffldeney of the evidence for conviction on Count Seven - Criminal Use of
Co••anication Facility.
Finally, Appellant asserts the evidence was insufficient for the jury to convict at Count
Seven, Criminal Use of Communication Facility, because "the Court should not have
erroneously admitb:d the unauthenticated text messages". See Amended Statement of Matters
Complained ofon .Appeal, 1 Bl 1. This claim is without merit and should be dismissed.
Appellant's claim of sufficiency of the evidence as to Count Seven, Criminal Use of
Communication Facility as well as the claim of evidentiary error regarding the text messages
were fully addlased in the Court's original 1925(a) Opinion. See Opinion, April 8, 2019, 10-16;
19-11. The Court's analysis and reasoning as to this repeated claim is incorporated herein as if
set forth in its entirety. Appellant's claim must be dismissed.
7
CONCLUSION
For foregoing reasons, the judgment of sentence should be affirmed. The Clerk of Courts
is hereby directed to transmit the record to the Superior Court.
BY THE COURT:
t/t5 /2019
Dater 1
cc: District A�mey's Office
Emily Merski, Esq., Public Defender's Office
8