Com. v. Martin, M.

C
J-A20036-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MICHAEL MARTIN                             :
                                               :
                       Appellant               :   No. 1455 WDA 2019

         Appeal from the Judgment of Sentence Entered June 7, 2019
            in the Court of Common Pleas of Washington County
            Criminal Division at No(s): CP-63-CR-0002923-2017

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                              FILED: APRIL 6, 2021

       Michael Martin (“Martin”) appeals from the judgment of sentence

imposed following his convictions of one count each of drug delivery resulting

in death, criminal use of a communication facility, criminal conspiracy,

possession of a controlled substance, and possession of drug paraphernalia,

and two counts each of possession with intent to deliver a controlled substance

and persons not to possess firearms.1 We affirm.

       In its Opinion, the trial court set forth the factual background underlying

this appeal, which we adopt as though fully set forth herein. See Trial Court

Opinion, 7/31/19, at 2-9.




____________________________________________


1 18 Pa.C.S.A. §§ 2506, 7512(a), 903(a)(1); 35 P.S. § 780-113(a)(16), (32),
(30); 18 Pa.C.S.A. § 6105(a)(1).
J-A20036-20


       On March 21, 2019, a jury found Martin guilty of the above-mentioned

crimes.    On April 1, 2019, Martin filed a “Motion for Post-trial Relief,”

challenging, in relevant part, the weight and sufficiency of the evidence in

support of the jury’s verdict, the trial court’s admission into evidence of certain

text messages from Martin’s cell phone, and a jury instruction that was made

by the trial court in response to a question posed by the jury during

deliberations.2 On June 7, 2019, Martin was sentenced to an aggregate term

of 15 to 30 years in prison. On July 31, 2019, the trial court entered an Order

dismissing Martin’s April 1, 2019, Motion. On September 23, 2019, Martin

filed a counseled Notice of Appeal.

       On October 17, 2019, this Court entered an Order stating that Martin’s

September 23, 2019, Notice of Appeal was filed outside of the 30-day appeal

period,3 and directing Martin to show cause why his appeal should not be

quashed as untimely filed. On October 28, 2019, counsel for Martin, Mark G.

Adams, Esquire (“Attorney Adams”), filed a Response with this Court. In his

Response, Attorney Adams asserted that he had timely filed the Notice of

Appeal, and that a breakdown in court operations caused it to be recorded as

untimely filed. This Court subsequently issued an Order, remanding the case



____________________________________________


2 The trial court treated Martin’s Motion as a post-sentence Motion, and
deferred ruling thereon until after Martin’s judgment of sentence was entered.

3See Pa.R.A.P. 903(a) (stating that a notice of appeal “shall be filed within
30 days after the entry of the order from which the appeal is taken.”).

                                           -2-
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to the trial court to develop a record regarding whether a breakdown in the

court’s operations had impacted Martin’s timely filing of his Notice of Appeal.

       On January 6, 2021, the trial court issued an Order stating that it had

conducted a hearing regarding Attorney Adams’s timeliness claim, and

concluded that a breakdown in court operations had caused Martin’s Notice of

Appeal to be untimely filed.         See Order, 1/6/21, at 1-2.4   In light of the

foregoing, we will address Martin’s claims on appeal.

       On appeal, Martin raises the following questions for our review:

       1. Whether the trial court erred in admitting evidence of text
       messages despite the fact that said messages were not properly
       authenticated, were inadmissible hearsay, were inadmissible as
       prior bad acts, and [were] in violation of the Confrontation Clause?

       2. Whether the trial court erred by admitting the autopsy report
       and testimony despite [C]onfrontation [C]lause violations?

       3. Whether the trial court erred in denying the jury the ability to
       consider evidence of theft in a [d]eath by [d]elivery charge despite
       evidence of theft being presented at trial?

       4. Whether the lower court erred in finding [that] there was
       sufficient evidence to uphold the verdict?

Brief for Appellant at 7.


____________________________________________


4  The trial court found that Attorney Adams “testified credibly about filing his
[N]otice of [A]ppeal on August 29, 2019,” and “[h]is Colleague, Dennis
Popojas, Esquire, corroborated this claim with credibility.” Order, 1-6/21, at
1. The trial court noted that “the [C]lerk of [C]ourt from 2016 through 2019,
was under investigation in 2019 by the Pennsylvania State Police for
embezzling []$101,876.04 from his office in 2018. According to [Brenda
Davis, the current Clerk of Courts,] she and her staff have found numerous
filing problems and errors from the months of [August through October]
2019.”

Id. at 2

(footnote omitted).

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      In his first claim, Martin argues that the trial court erred in admitting

into evidence the text messages from Exhibit 45, which were discussed during

the trial testimony of Pennsylvania State Trooper Kevin Dejuliis (“Trooper

Dejuliis”). Martin advances several grounds on which the trial court erred in

admitting these text messages, which we will address separately. First, Martin

argues that the text messages were not properly authenticated. See Brief for

Appellant at 12-16. Martin claims that the Commonwealth did not produce

evidence proving that Martin authored the “sent” text messages.

Id. at 12-

14.

  According to Martin, the fact that the sender of the text messages

identified himself in one of the texts as “Miz,” a nickname by which Martin was

known, is not sufficient to authenticate the text messages.

Id. at 14-16.

Martin states that other people knew him by this nickname, and thus, this

information was not information that only Martin would know.

Id.

The standard of

review governing evidentiary issues is
      settled. The decision to admit or exclude evidence is committed
      to the trial court’s sound discretion, and evidentiary rulings will
      only be reversed upon a showing that a court abused that
      discretion. A finding of abuse of discretion may not be made
      merely because an appellate court might have reached a different
      conclusion, but requires a result of manifest unreasonableness, or
      partiality, prejudice, bias, or ill-will, or such lack of support so as
      to be clearly erroneous. Matters within the trial court’s discretion
      are reviewed on appeal under a deferential standard, and any such
      rulings or determinations will not be disturbed short of a finding
      that the trial court committed a clear abuse of discretion or an
      error of law controlling the outcome of the case.

Commonwealth v. Koch, 

106 A.3d 705

, 710-11 (Pa. 2014) (citations and

quotation marks omitted).


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      Pennsylvania Rule of Evidence 901 sets forth the standards for

authenticating evidence. Rule 901 states, 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:

            (A) direct evidence such as testimony of a person with
            personal knowledge; or

            (B) circumstantial evidence such as:

               (i) identifying content; or

               (ii) proof of ownership, possession, control, or
               access to a device or account at the relevant
               time when corroborated by circumstances
               indicating authorship.

Pa.R.E. 901.

             “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.
      See Pa.R.E. 901(a).

Pa.R.E. 901, cmt (emphasis added).

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             Under Pennsylvania Rule of Evidence 901, text messages
      may be authenticated by: (1) testimony from either the author or
      the sender; (2) circumstantial evidence, including “distinctive
      characteristics” like information specifying the author-sender or
      “reference to or correspondence with relevant events” preceding
      or following the message; or (3) “any other facts or aspects of the
      message that signify it to be what its proponent claims.”
      Commonwealth v. Koch, … 

106 A.3d 705

, 712-13 ([Pa.] 2014)
      (Castille, C.J., in support of affirmance); see Commonwealth v.
      Collins, … 

957 A.2d 237

, 265-66 ([Pa.] 2008). Further,
      “authentication generally entails a relatively low burden of proof;
      in the words of Rule 901 itself, simply ‘evidence sufficient to
      support a finding that the item is what the proponent claims.’”
      

Koch, 106 A.3d at 713

(quoting Pa.R.E. 901(a)).

Commonwealth v. Murray, 

174 A.3d 1147

, 1156-57 (Pa. Super. 2017)

(brackets omitted).

      Here, Martin does not cite to the record, or indicate which of the 209

text messages that were discussed during Trooper Dejuliis’s testimony he

challenges.   Even were we to assume that Martin is challenging all 209

messages, Martin makes no argument regarding the specific messages.

Instead, Martin makes a wholesale argument that none of the messages were

authenticated. “[W]here an appellate brief fails to provide any discussion of

a claim with citation to relevant authority[,] or fails to develop the issue in

any other meaningful fashion capable of review, that claim is waived.”

Commonwealth v. Johnson, 

985 A.2d 915

, 924 (Pa. 2009). It is not the

role of this Court to “formulate [an a]ppellant’s arguments for him.”

Id. at

925.

Accordingly, we could find this claim waived.

      Nonetheless, in its Opinion, the trial court aptly reviewed all 209

messages, and concluded that the Commonwealth presented sufficient

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evidence to authenticate each of the messages.             See Trial Court Opinion,

7/31/19, at 24-28. We agree with the sound reasoning and determinations

of the trial court, as set forth in its Opinion, and we affirm thereon regarding

this claim.    Id.; see also 

Murray, 174 A.3d at 1156

(stating that text

messages may be authenticated by “circumstantial evidence, including

‘distinctive characteristics’ like information specifying the author-

sender.”).

      Second, Martin argues that the “sent” messages from Exhibit 45

discussed during Trooper Dejuliis’s testimony should have been excluded as

hearsay pursuant to Pa.R.E. 803. See Brief for Appellant at 16-18. Martin

claims that these text messages cannot be admitted under the party-opponent

exception     to   the   hearsay   rule,   see   Pa.R.E.   803(25),   because   the

Commonwealth did not establish that the text messages were sent by Martin.

Brief for Appellant at 16-18.

            Hearsay is an out of court statement offered to prove the
      truth of the matter asserted. Pa.R.E. 801(C). Generally, it is not
      admissible, as it lacks guarantees of trustworthiness fundamental
      to our system of jurisprudence.          In order to guarantee
      trustworthiness, the proponent of a hearsay statement must
      establish an exception to the rule of exclusion before it shall be
      admitted.

Commonwealth v. Manivannan, 

186 A.3d 472

, 480 (Pa. Super. 2018)

(citation, brackets and quotation marks omitted).




                                           -7-
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      One of the exceptions to the rule against hearsay is an opposing party’s

statement, which is a “statement [] offered against an opposing party and …

made by the party in an individual … capacity.” Pa.R.E. 803(25).

             Party admissions are not subject to hearsay exclusion
      because[] it is fair in an adversary system that a party’s prior
      statements be used against him if they are inconsistent with his
      position at trial. In addition, a party can hardly complain of his
      inability to cross-examine himself. A party can put himself on the
      stand and explain or contradict his former statements. Thus, in
      criminal cases, [the Supreme Court of Pennsylvania] has
      consistently held that a defendant’s out-of-court statements are
      party admissions and are exceptions to the hearsay rule.

Commonwealth v. Edwards, 

903 A.2d 1139

, 1157-58 (Pa. 2006) (citations

omitted).

      Here, the trial court reviewed the “sent” text messages from Exhibit 45,

discussed why it was clear that the messages were sent by Martin, and

concluded that the text messages were properly admitted as admissions of a

party opponent. See Trial Court Opinion, 7/31/19, at 23-28; Pa.R.E. 803(25).

We agree with the sound reasoning and determinations of the trial court, as

set forth in its Opinion, and we affirm thereon regarding this claim. Trial Court

Opinion, 7/31/19, at 23-28; Pa.R.E. 803(25); 

Edwards, supra

.

      Third, Martin argues that the “received” text messages from Exhibit 45

discussed during Trooper Dejuliis’s testimony should have been excluded as

prior bad acts evidence, in violation of Pa.R.E. 404(b)(1).   Brief for Appellant

at 18-20. Martin claims that the messages were used to prove his character—




                                      -8-
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specifically, his “propensity to deal in narcotics”—and that “this evidence [was]

used to ascertain his guilt.”

Id. at 18-19;

accord

id. at 19-20.

         Rule 404(b)(1) states that “[e]vidence of a crime, wrong, or other act

is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character. Pa.R.E.

404 (emphasis added).

         Here, Martin was charged with criminal use of a communication facility

during the period over which the “received” messages were received. See

Amended Information, 2/15/19, at 1-2 (pages unnumbered).              This charge

required proof that Martin “use[d] a communication facility to commit, cause

or facilitate the commission or the attempt thereof of any crime which

constitutes a felony under [the Crimes Code] or under … The Controlled

Substance, Drug, Device and Cosmetic Act.” 18 Pa.C.S.A. § 7512. Martin

was also charged with possession with intent to deliver a controlled substance,

which is a felony under the Controlled Substance, Drug, Device and Cosmetic

Act, and conspiracy to commit possession with intent to deliver a controlled

substance, which is a felony under the Crimes Code.           See 35 P.S. 780-

113(a)(30); 18 Pa.C.S.A. § 903(a)(1).          Thus, the text messages were

admissible to prove that Martin was guilty of criminal use of a communication

facility. Accordingly, the trial court did not abuse its discretion, and this claim

fails.




                                       -9-
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     Fourth, Martin argues that admission of the “received” text messages

from Exhibit 45, discussed during Trooper Dejuliis’s testimony, violated his

rights under the Confrontation Clause, see U.S. Const. amend. VI. Brief for

Appellant at 20-21. Martin claims that the text messages are testimonial; the

text senders were available to testify; and Martin did not have a prior

opportunity to cross-examine the text-senders.

Id.

In its Opinion,

the trial court identified the “received” messages, stated

the applicable law, cogently and thoroughly addressed Martin’s claim, and

concluded that it lacks merit. See Trial Court Opinion, 7/31/19, at 28-30. We

agree with the sound reasoning and determinations of the trial court, as set

forth in its Opinion, and we affirm thereon regarding this claim.     See

id.

Accordingly, each of

Martin’s claims regarding the trial court’s admission of

the text messages from Exhibit 45 fails.

     In his second claim, Martin argues that the trial court erred when it

admitted into evidence the autopsy report of Stacy Greenawalt (“the victim”).

See Brief for Appellant at 22-23.    Martin claims that his rights under the

Confrontation Clause were violated because the autopsy report’s author, Dr.

Leon Rosen (“Dr. Rosen”), was unavailable for cross-examination at trial.

Id.

Martin further argues

that the trial court erred in permitting Dr. Abdulrezak

Shakir to testify regarding the autopsy, because his testimony was based on

Dr. Rosen’s conclusions in the autopsy report.

Id. at 2

4-26.




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      Here, Martin did not raise this claim with the trial court at trial or in his

Post-Trial Motion. See Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in

the trial court are waived and cannot be raised for the first time on appeal.”);

Commonwealth v. May, 

887 A.2d 750

, 761 (Pa. 2005) (stating that the

appellant waived his Confrontation Clause claim where he did not raise the

claim at trial). Accordingly, this claim is waived. See

id.

In his third

claim, Martin argues that the trial court erroneously

responded to a question raised by the jury during its deliberations. See Brief

for Appellant at 26-28. Martin points out that the jury asked the trial court,

with regard to the drug delivery resulting in death charge, whether “the law

hold[s] the supplier accountable if the victim stole the controlled substance

without the knowledge of the defendant[.]”

Id. at 2

6-28; N.T., 3/21/19, at

81. Martin claims that the trial court improperly instructed the jury that, based

on the evidence presented at trial, the jury could not conclude that the victim

stole the narcotics that caused her death from Martin. See Brief for Appellant

at 27-28; N.T., 3/21/19, at 81. According to Martin, because “there [was] no

witness of [a drug transaction] between Martin and [the victim],” the jury

should have been permitted to infer that the victim may have stolen the drugs

from Martin. Brief for Appellant at 27-28.

             It is settled that a trial court should not instruct the jury on
      legal principles which have no application to the facts presented
      at trial. Rather, there must be some relationship between the
      evidence presented and the law upon which an instruction is
      requested. The reason for this rule is that, instructing the jury on
      legal principles that cannot rationally be applied to the facts

                                      - 11 -
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      presented at trial may confuse them and place obstacles in the
      path of a just verdict. Accordingly, a criminal defendant must
      establish that the trial evidence would reasonably support a
      verdict based on the desired charge and may not claim
      entitlement to an instruction that has no basis in the evidence
      presented during trial.

Commonwealth v. Taylor, 

876 A.2d 916

, 925-26 (Pa. 2005) (citations and

quotation marks omitted).

      Here, the trial court responded to the jury’s question by instructing that

      [t]he jury can only consider the evidence that was presented in
      the courtroom via the witnesses, and/or – and the exhibits. You
      are not permitted to speculate. There was no evidence presented
      that the victim stole anything that is a controlled substance. There
      was no evidence of that. So[,] you may not consider that which
      is not in evidence or things that are reasonably inferred from the
      evidence presented.

N.T., 3/21/19, at 81.

      Our review of the record discloses that there was no evidence presented

at trial to suggest that the victim stole from Martin the drugs that caused her

death. Thus, the trial court did not err in giving this instruction. See 

Taylor,

supra

.   Accordingly, this claim fails.

      In his fourth claim, Martin argues that the Commonwealth failed to

present sufficient evidence to support his convictions for persons not to

possess firearms. See Brief for Appellant at 28-32. Martin points out that he

was convicted of two counts of persons not to possess firearms, relating to his

alleged possession of three firearms.

Id. at 2

8-30. The first count was in

relation to two firearms: an AR-15 rifle and a .45 caliber handgun.

Id. at 2

9.

The second count was in relation to a .32 caliber handgun.

Id. According to

12 -
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Martin, there was no evidence establishing that he was in actual possession

of any of the three firearms, and the evidence was insufficient to prove that

he had constructive possession of the firearms.

Id. at 2

9-32. Martin further

claims that there was no evidence to prove that the three firearms “were in

fact firearms under the statute” “since the guns were never recovered.”

Id.

at 31.

         When considering a challenge to the sufficiency of the evidence, we

ascertain

         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 [that of] 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. Melvin, 

103 A.3d 1

, 39-40 (Pa. Super. 2014) (citation

omitted).

         Section 6105(a)(1) of the Crimes Code states, in relevant part, that

         [a] person who has been convicted of an offense enumerated in
         subsection (b) … shall not possess, use, control, sell, transfer or

                                        - 13 -
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       manufacture or obtain a license to possess, use, control, sell,
       transfer or manufacture a firearm in this Commonwealth.

18 Pa.C.S.A. § 6105(a)(1).5

       Here, Martin was convicted of two counts of persons not to possess

firearms. Regarding the first conviction, Ricky Litton, Jr. (“Litton”), testified

that he had sold Martin two firearms. See N.T., 3/19/19, at 9-17. Specifically,

Litton stated that he went to Martin’s home and negotiated the sale of a Stag

AR-15 rifle and a Para .45 caliber handgun to Martin, in exchange for some

cocaine and U.S. currency.

Id. Litton testified that

Martin gave Litton the

cocaine and money, and Litton gave Martin the two firearms.

Id. at 15-17.

Viewing the evidence in a light most favorable to the Commonwealth, the

Commonwealth presented sufficient evidence to convict Martin of the first

persons not to possess firearms count. See 18 Pa.C.S.A. § 6105(a)(1).

       Regarding the second persons not to possess firearms conviction,

Samantha Howes (“Howes”), Martin’s roommate, testified that she saw Martin

in possession of a .32 caliber handgun. N.T., 3/18/19, at 141-45. Specifically,

Howes stated that on December 2, 2016, Robbie Huber (“Huber”) overdosed

on heroin while at the home where Howes and Martin lived.

Id. Howes

testified that

she found Huber unresponsive in the bathroom, with a needle

sticking out of his arm.

Id. at 143.

Howes and Martin carried Huber’s body


____________________________________________


5Martin challenges only whether he was in possession of the firearms, and
not whether he was prohibited from possessing a firearm. Accordingly, we
will limit our analysis to whether Martin possessed the firearms.

                                          - 14 -
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from the bathroom into the hallway and Howes performed CPR on Huber.

Id.

At some point,

the .32 caliber gun fell out of Huber’s pocket, and Martin picked

it up and held onto it.

Id. at 143-45.

Howes testified that Huber regained

consciousness, but Martin did not return the handgun to Huber, and instead,

retained possession of the handgun.

Id. Viewing the evidence

in a light most

favorable to the Commonwealth, the Commonwealth presented sufficient

evidence to convict Martin of the second persons not to possess firearms

count. See 18 Pa.C.S.A. § 6105(a)(1).          In light of the foregoing, Martin’s

sufficiency claims fail.

          Accordingly, each of Martin’s claims lack merit, and we deny Martin

relief.

          Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/06/2021




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