February 7, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
CRAIG A. BLACK, Appellant
Appeal from the Judgment of Sentence February 16, 2012 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000679-2011
BEFORE: BOWES, WECHT, and STABILE, JJ.
Craig A. Black appeals from the judgment of sentence of thirty-five to seventy years imprisonment that was imposed after he was convicted by a jury of third-degree murder, attempted murder, aggravated assault, and carrying an unlicensed firearm . We affirm .
Appellant's convictions arose from an incident that occurred at 1: 30 a.m. on December 6, 2010 in Pittsburgh. Appellant shot and killed Dyon Jones and shot Anthony Woodson four times. Anthony Woodson, who pretended to be dead after being shot but who survived, testified against Appellant at trial. The Honorable Edward J. Borkowski provided a comprehensive outline of the evidence supporting Appellant's convictions:
On December 5, 2010, [ Appellant] arranged to sell a firearm to Anthony Woodson in the Lincoln-Larimer section of the City of Pittsburgh, Allegheny County. [ Appellant] had purchased marijuana from Woodson in the past and knew Woodson was seeking to purchase a handgun. The sale was arranged when [Appellant] texted a picture of a Smith & Wesson automatic handgun to Woodson, and offered to sell the gun to Woodson for $150. [ Appellant] and Woodson eventually agreed that Woodson would purchase the gun for an "aife" ($15 worth of marijuana) and $100. [ Appellant] selected the recreation center in the Lincoln-Larimer neighborhood as the meeting place because he was concerned about the number of police patrolling the Homewood area where Woodson lived. Woodson asked his close friend Dyon Jones to go with him to the meeting place because Woodson feared [ Appellant] might try to rob him. At approximately 1: 00 A.M. on December 6, 2010, Woodson took his mother's vehicle and drove himself and Dyon Jones to pick up [ Appellant] near the recreation center in the Lincoln-Larimer neighborhood.
When Woodson and Jones pulled over at the recreation center, [ Appellant] walked towards them and got into the backseat of the vehicle behind the front passenger, Jones. Jones and Woodson switched seats and [ Appellant] instructed Jones to drive towards East Hills. As Jones began to drive, [ Appellant] told Woodson that he had the gun and that he wanted the money and marijuana. Woodson gave the money and marijuana to [ Appellant], but [ Appellant] did not hand over the gun. Rather, [ Appellant] told Jones that he was driving in the wrong direction and Jones began to turn the car around on Joseph Street. As he did, [ Appellant] pulled out a gun and shot both Jones and Woodson from his position in the rear passenger seat.
Jones suffered two gunshot wounds to the head and died almost immediately as a result. Jones's body slumped in the driver's seat causing the car horn to sound, and his foot remained on the brake, keeping the vehicle stationary. A third bullet pierced the driver's side windshield. [ Appellant] shot Woodson in the right arm, left arm, left hand, and left shoulder. Woodson immediately [ acted as if he were dead, ] and [ Appellant] exited the car. Woodson called 911 to report the shooting and that Jones was dead.
However, [ Appellant] walked back to the vehicle, prompting Woodson to drop the phone without hanging up and again [ pretend to be dead] . [ Appellant] punched out the glass of the driver's side window and reached in to unlock and open the driver's side door. He stopped the car horn, rustled through Jones's pockets, and reached across the seat and took $58 from Woodson's pockets. [ Appellant] ran away from the vehicle and fled the area when police vehicles approached and began to illuminate the street. Paramedics pronounced Jones dead at the scene .....
Woodson, although seriously injured, was able to tell the initial officers before he was emergently transported that [ Appellant] shot him . The police investigation, including Woodson's account and identification, led to the arrest of [ Appellant ] . . . .
Trial Court Opinion, 7/ 11/ 13, at 6-9 (citations to record and footnote omitted).
I n this appeal that followed imposition of judgment of sentence, Appellant presents the following issues for our review:
I . Did the trial court abuse its discretion by admitting unauthenticated data consisting of phone calls and text messages between the phones of Craig Black and Anthony Woodson?
II . Did the trial court abuse its discretion by permitting the Commonwealth to present evidence of Mr. Black's prior criminal acts involving drug purchases?
Appellant's brief at 5.
Both of these challenges pertain to the trial court's decision to admit evidence, which is subject to the following standard of review. "The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error." Commonwealth v. Ballard, 80 A.3d 380, 392 (Pa. 2013) (citation omitted) . "An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record, discretion is abused." Commonwealth v. Stollar, 2014 WL 241864, 15 (Pa. 2014) (citation omitted).
I n Appellant's first claim, he argues that data from both phone calls and text messages were improperly admitted as neither was properly authenticated. Authentication of telephone calls is specifically discussed in Pa.R.E. 901, which pertains to the authentication and identification of evidence in general:
(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claim s.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
(1) Testimony of witness with knowledge. Testimony that a matter is what it is claim ed to be.
(5) Opinion About a Voice. An opinion identifying a person's voice--whether heard firsthand or through mechanical or electronic transmission or recording--based on hearing the voice at any time under circum stances that connect it with the alleged speaker.
(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:
(A) a particular person, if circum stances, including self-identification, show that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.
In this case, Mr. Woodson stated that he knew Appellant's voice, that he called the telephone number where he had reached Appellant on prior occasions, and that he recognized Appellant's voice during the admitted telephone conversations. The Commonwealth further established that the cellular number in question was assigned to Appellant. Hence, the content of the telephone calls between Mr. Woodson and Appellant were properly authenticated. Commonwealth v. Serrano, 61 A.3d 279 (Pa.Super. 2013).
Appellant's challenge to whether the text messages were authenticated implicates our decision in Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), appeal granted, 44 A.3d 1147 (Pa. 2012). In Koch, we concluded that text messages regarding drug sales had been improperly admitted against a defendant. Significantly, in that case, the person who transcribed the text messages acknowledged both that he could not confirm that the defendant authored them and that it was apparent that the defendant did not send all the text messages emanating from her phone. This latter admission conclusively established that other people had access to and used that device.
In deciding the matter, we observed that text messages present a special problem concerning the identity of the sender since the owner of a cellular telephone is not necessarily the exclusive user of that device, as demonstrated by the facts at issue in that case. We indicated that the conclusion that a text message originated from a particular defendant cannot be established merely by showing that the cell phone from which that message was sent was assigned to the defendant. Instead, "Circumstantial evidence, which tends to corroborate the identity of the sender, is required." Id. at 1004. We continued, "Glaringly absent in this case is any evidence tending to substantiate that [ the defendant] wrote the drug-related text messages. No testimony was presented from persons who sent or received the text messages. There are no contextual clues in the drug-related text messages them selves tending to reveal the identity of the sender." Id. Hence, we concluded in Koch that the text messages regarding drug sales had been improperly admitted.
This case presents a far different scenario than the one examined in Koch. The trial court noted that the following facts were sufficient to prove that Appellant was the author of the text messages that were sent to Mr. Woodson about the sale of the firearm and were admitted into evidence:
(1) Woodson received text messages from a number he associated with Appellant; (2) the number in fact belonged to a cell phone that Appellant owned; (3) both Woodson and Jones responded to messages received from Appellant's cell number; (4) during the text conversation, Woodson received a text from the number associated with Appellant that Appellant was going to call him; (5) Woodson subsequently answered a phone call from the number associated with Appellant; (6) Woodson had spoken with Appellant on the phone before and was familiar with Appellant from high school; (7) Woodson recognized the voice on the phone as that of Appellant; (8) Woodson drove to the recreation center in the Lincoln-Larimer neighborhood to pick up Appellant based on the continuing text conversation; and (9) Appellant was waiting for Woodson at that location at the specified time.
Trial Court Opinion, 7/ 11/ 13, at 25 (citations to record omitted). Thus, there was direct evidence establishing that Appellant was the author of the text messages admitted at trial. The trial court did not abuse its discretion in rendering this evidentiary ruling.
Appellant's second averment is that the trial court abused its discretion in permitting the Commonwealth to present testimony that Appellant had purchased drugs two days prior to the shooting. The following facts are relevant to this position. Mr. Woodson admitted that he and Mr. Jones were in the business of marijuana sales and that they earned hundreds of dollars weekly from this enterprise. As part of his description of his interactions with Appellant in the days before the crime, which contacts included discussions about the proposed sale of the gun, Mr. Woodson related that Appellant purchased marijuana from him two days before the shooting.
The evidence about the drug purchase was not introduced to demonstrate that Appellant had a bad character or propensity to criminal activity. Rather, it was admitted to show that Appellant knew that Mr. Woodson was a drug dealer who would have money and drugs on his person when he came to purchase the firearm from Appellant, and, thus, was pertinent to motive. Additionally, it was part of the sequence of events that led up to the shooting. As our Supreme Court has observed:
Evidence of " other crimes, wrongs, or other acts" is inadmissible solely to show a defendant's bad character or his propensity for committing criminal acts. Pa.R.E. 404(b)(1); Commonwealth v. Lark, 518 Pa. 290, 543 A.2d 491 (Pa. 1988). Such evidence is admissible, however, when relevant for another purpose, including motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake. Pa.R.E. 404(b)(2); Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 534 (Pa. 2005). This Court has also recognized the resgestae exception, permitting the admission of evidence of other crimes or bad acts to tell "the complete story." Commonwealth v. Williams, 586 Pa. 553, 896 A.2d 523, 539 (Pa. 2006); Commonwealth v. Paddy, 800 A.2d 291, 308 (Pa. 2002); Lark, 543 A.2d at 497. Such evidence may be admitted, however, " only if the probative value of the evidence outweighs its potential for unfair prejudice." Pa.R.E. 404(b)(2).
Commonwealth v. Hairston, 2014 WL 241866, 4 (Pa. 2014).
I n this case, Appellant's purchase of marijuana two days prior to the transaction demonstrated that he knew that the victim was a drug dealer with cash and drugs and was relevant to establish motive. It also was part of the complete story of the criminal episode. Moreover, the fact that Appellant bought marijuana was not so prejudicial as to outweigh its probative value. Thus, the trial court did not abuse its discretion in admitting that proof.
Judgment of sentence affirmed.