
    Commonwealth v. Curry.
    
      
      Charles Gallagher and Craig Scheetz for plaintiff.
    
      Charles Banta, for defendant.
    November 29, 2012
   STEINBERG, J.,

On November 21, 2011, the appellant, Hishamu Curry, was found guilty after a jury trial of robbery (three counts), attempted criminal homicide, aggravated assault (two counts), and criminal conspiracy to commit robbery. The appellant and two confederates, Isaah Sampson and Edward Maye, robbed the KNBT Bank in Emmaus at gunpoint. During the robbery, Edward Maye assaulted the assistant manager of the bank with a firearm, and in their flight to avoid apprehension, Isaah Sampson fired his weapon multiple times at Officer William Bryfogle of the Emmaus Police Department. Multiple bullets struck Officer Bryfogle’s cruiser, but he escaped uninjured.

A presentence report was ordered following the jury’s verdict. A full sentencing hearing was held on February 13,2012, during which both the presentence report and the sentencing guidelines were considered prior to imposing sentence. At the conclusion of the sentencing hearing, the appellant received a total sentence of not less than thirty (30) years nor more than sixty (60) years in a state correctional institution.

A notice of appeal was filed by trial counsel on March 14, 2012. Pursuant to this court’s directive, counsel filed a timely Pa.R.A.P. 1925(b) Statement. The sole issue raised alleges that it was error to permit the introduction into evidence of cell phone records and text messages secured from appellant’s cell phone.

On August 7, 2012, the Superior Court granted trial counsel’s “petition for permission to withdraw as counsel”. Pursuant to that order a hearing was held, and the appellant was determined to be eligible for court-appointed counsel. As a result, Charles Banta, Esquire, was appointed to represent the appellant for appellate proceedings.

Background

On December 30, 2010, at approximately 9:15 a.m., three (3) masked men with guns entered the KNBT Bank in Emmaus and exclaimed, “this is a robbery”. Two (2) of the three (3) jumped on the counter, and the third robber grabbed Michelle Andrews, the assistant manager, and forced her to the vault at gunpoint. When she reached the vault, he struck her in the head with his gun. Ms. Andrews fell to the floor, and then grabbed her sweater to stem the blood coming from her head. Ms. Andrews called-out for someone to open the vault, and Josephine Baba and Donna Grenauer, two (2) bank tellers, immediately responded. Both were unable to open the vault, and with that, one (1) or more of the robbers threatened: “Two more seconds and I’m going to start shooting if we don’t get the vault open.” Finally, Ms. Baba was able to open the vault, but by then the robbers had fled from the bank.

Minutes earlier, Ms. Grenauer was confronted at her teller station by one (1) of the robbers who was wearing a ski mask and hooded sweatshirt, and was carrying a duffle bag. He demanded that she put money in the bag and when she did not do so as quickly as he wanted, “he jumped on the counter and helped himself into the drawer and took money out himself.” Various denominations were removed, including a “pack in straps.” This was described as a GPS device.

Kathy Moyer, who was also a teller at the bank, observed the three (3) robbers entering the bank armed with guns, and wearing masks and gloves. She was confronted by one (1) of the robbers who placed a gun in her face and demanded money. This individual made it clear that he did not want “strap money.” Ms. Moyer gave him the money from her teller drawer. She was then led to the vault at gunpoint, where she remained with her fellow employees.

It was determined that eleven thousand five hundred and twenty-nine ($11,529) dollars was taken in the robbeiy. When the getaway car was later inventoried by the police, they discovered a black bag with money, as well as a GPS tracking device, which continued to ring in the 9-1-1 center until Detective Hoats deactivated it. The “strap money” had the initials “KM”, Kathy Moyer.

Officer William Bryfogle of the Emmaus Police Department was approximately a mile and a half away from the bank when he received a call of suspicious activity at the bank. He activated his emergency lights and siren, which also activated his on-board video camera, and proceeded to the bank. While doing so, he received further notification “that a GPS unit had activated from the inside of the bank on a money pack.” Further information communicated to him indicated that the transponder was signaling it was moving out of the bank.

He arrived at the bank approximately a minute or so later, and proceeded to the intersection of North 2nd Street and Green Street, which is an alley behind the bank. Initially, he did not observe any activity, but approximately ten (10) seconds later, he observed a vehicle enter the alley coming towards his patrol vehicle. The vehicle ignored the stop sign at 2nd and Green Street and continued eastbound. Officer Biyfogle turned his patrol vehicle behind the fleeing vehicle, and again activated his emergency lights and siren. He identified the vehicle as a blue Mercury with three (3) occupants wearing dark clothing.

The pursuit was continuing when Officer Bryfogle observed a “black handgun come out the back passenger window of the vehicle and point in [his] direction.” “Three shots [were] fired towards the front of [his] patrol vehicle approaching Main Street.” His vehicle was struck by these bullets, and a subsequent examination revealed bullet holes through the bumper, the lower plastic air vent, and the driver’s side front tire.

Officer Bryfogle continued his pursuit, and after turning onto Main Street, the Mercury put on its brakes, almost coming to a complete stop. The passenger in the rear of the vehicle continued to fire his “black semiautomatic handgun”, and with that, Officer Bryfogle rammed the back of the Mercury. The mercury began to slow, and Officer Bryfogle tried to create some distance between the two vehicles as a precautionary measure. When the Mercury reached 1st Street, the back passenger exited the vehicle, and a little further down the street, the front passenger departed. Finally, while the vehicle was still “rolling”, the driver fled, and ran behind the back of the Mercury.

Officer Bryfogle, who was still in his patrol vehicle, followed the driver and bumped him with the front bumper of his patrol vehicle. Although the driver was knocked down, he jumped up, and Officer Bryfogle knocked him down a second time. Officer Bryfogle then exited his vehicle, and the driver jumped up again and began running. He continued to do so until he was struck by Sergeant Troy Schantz’s patrol vehicle. All of Officer Bryfogle’s testimony was captured by the on-board video from his patrol vehicle, which was introduced into evidence at trial.

Sergeant Schantz also responded to the bank, and as he approached the front of the bank, he heard communication from Officer Bryfogle that he was in pursuit of a vehicle. He also heard that shots were being fired at Officer Bryfogle. Sergeant Schantz returned to his patrol vehicle, and after making visual contact with Officer Bryfogle’s vehicle, he assisted in the pursuit of the Mercury. Sergeant Schantz also observed the occupants of the Mercury flee the vehicle, and assisted Officer Bryfogle in his pursuit of two (2) of the suspects. Sergeant Schantz struck the individual described as the driver of the Mercury, which caused that individual to fly onto the hood of Sergeant Schantz’s vehicle. The ski mask this individual was holding also landed on Sergeant Schantz’s windshield. Sergeant Schantz then hit his brakes, which caused that individual to then hit the pavement. While initially this individual seemed unconscious, he quickly regained consciousness and began fighting with Sergeant Schantz. He was subdued and handcuffed. A search of this individual revealed a Samsung, AT&T cell phone. He was identified as Edward Maye.

The front passenger, who was wearing a gray sweatshirt, scaled a fence at the Emmaus Maintenance Department garage area and disappeared. During a search at the fence, a black cloth glove was found attached to the top of the fence. On the ground, directly beneath the glove, a Hi-Point .380 caliber handgun was recovered.

The back passenger, who was in all black, fled “south of South 1st Street”. Sergeant Schantz coordinated a search for the two (2) other suspects, and in following the path of the back passenger, discovered a my Touch T-Mobile cell phone, and a .40 caliber Smith & Wesson handgun. A firearms expert report was introduced by stipulation, and demonstrated that this was the weapon that discharged the bullets at Officer Bryfogle.

One (1) of the responding officers was Budd Frankenfield of the Salisbury Police Department. He arrived shortly after Sergeant Schantz had Edward Maye on the ground and in custody. He received a description from Sergeant Schantz of one (1) of the fugitives, and began a search both by patrol vehicle and on foot. He eventually observed a black male wearing black sweatpants and a hooded sweatshirt walk “northbound out of the tree line and [enter] the railroad tracks approximately seventy-five feet to [his] west.” Officer Frankenfield ordered the individual to stop, but the individual disregarded his instructions and fled in the opposite direction with Officer Frankenfield in pursuit. Sergeant Geschwindt from the Emmaus Police Department eventually got the lead on this individual and he was apprehended. This individual was Isaah Sampson. However, he told Sergeant Geschwindt that his name was “Andre.”

During the search of the Mercury, Detective Timothy Hoats not only discovered the black bag with the money from KNBT Bank, but also a Blackberry phone on the back seat. This cell phone, as well as the Samsung AT&T seized from Edward Maye, the T-Mobile cell phone discovered with one (1) of the firearms near the getaway vehicle, and the Sanyo Boost Mobile phone which was recovered from the ground where Hishamu Curry was apprehended, were analyzed by Detective Jason Apgar. Detective Apgar was qualified as an expert in utilizing a universal forensic extraction device referred to as a Cellbrite machine. His expert testimony documented the retrieval of data from these cell phones.

The Curry cell phone was recovered at approximately 7:00 p.m. on the date of the robbery, when members of the Allentown Police Department cornered a vehicle in connection with this robbery. Lieutenant Glen Domey testified that after this vehicle was stopped, he exited his patrol vehicle with his gun drawn, and ordered Hishamu Curry to put his hands in the air. Lieutenant Dorney approached the vehicle, opened the door, and removed Curry from the vehicle. Curry either had the cell phone on his person, inside a pocket or on his lap. As Lieutenant Domey pulled Curry from the vehicle, the cell phone “flew out of his lap area and onto the ground.” FBI Agent Alan Jones picked up the cell phone, and handed it to FBI Agent Thomas Neeson, who turned it over to Detective Apgar.

When Hishamu Curry was removed from the vehicle, he was less than cooperative, necessitating the use of force to handcuff him. Once the officers were able to take control of him, he told them, “Okay, you caught me.”

Detective Apgar’s retrieval of the text messages from the Curry cell phone demonstrated the planning of the robbery between Curry, Sampson, and Maye. In that regard, the Commonwealth utilized a composite of the three hundred and ninety-five (395) text messages retrieved from the Cuny cell phone to show communications between all three (3) conspirators in the days leading up to and the day of the robbery. Additionally, Curry’s text messages in his flight to avoid apprehension were also part of the composite exhibit.

A review of the composite shows that number 484-560-5464 matches the phone number of the Samsung, which was recovered from Maye. Number 484-860-8898 matches the phone number of the Blackberry, which was recovered from the back seat of the Mercury. The my Touch cell phone, which was discovered with the Smith & Wesson handgun on the path the rear passenger fled, not only contained a contact card with the number 484-860-8898, but also a photograph oflsaah Sampson.

The one hundred and twenty-seven (127) text messages contained in Commonwealth Exhibit 67 use coded language and conversations. An example includes: “when u wanna strike a vault”, to which Curry replies “where”, and he in turn receives the reply “emmaus”. Following the robbery, Curry’s conversation with “Mizzy” is less coded:

Curry: In a world of trouble again!
Mizzy: U got me scared and my nerves r bad..I hope it
aint nothin we can get u out of!!!!!
Curry: Hopefully not, but its bad bad bad sis!

Discussion

It is the appellant’s contention that it was error to permit the introduction of the text messages. He relies upon Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), appeal granted 44 A.3d 1147 (Pa. May 15,2012). In Koch, thirteen (13) drug-related text messages were transcribed from the appellant’s cell phone and introduced into evidence at trial. It was argued that the text messages were not properly authenticated because there was no evidence that the appellant was the “author of the text messages, nor evidence that drug-related texts were directed to her because Commonwealth witnesses conceded that another person was using [her] phone at least some of the time.” Id. at 1002.

Following a review of Pa.R.E. 901(a) and caselaw from both Pennsylvania and other jurisdictions, it was held that the text messages were not properly authenticated, and constituted hearsay. Id. at 1005. “The detective’s description of how he transcribed the text messages, together with his representation that the transcription was an accurate reproduction of the text messages on Appellant’s cellular phone, is insufficient for purposes of authentication where the Commonwealth concedes that Appellant did not author all of the text messages on her phone.... [T]hat authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.” Id.

The text messages captured from the appellant’s Sanyo cell phone do not present the same authentication issues raised in Koch. His authorship of most of the text messages cannot reasonably be disputed, especially in light of their content both prior to and subsequent to the robbery. The text messages provided a continuity of events leading up to the robbery of the KNBT Bank, as opposed to the drug-related text messages in Koch, which appear to be random and not interconnected. Additionally, the other persons, who were participants in the texting, are easily identified. Prior to the robbery, the other texting partners were either in possession of the cell phone recovered on Edward Maye, or in the getaway vehicle. Based on the evidence introduced at trial, that person was the back seat passenger, Isaah Sampson.

The appellant was also in possession of the Sanyo cell phone when he was apprehended. No testimony was presented that on the day of the robbeiy or the days leading up to the robbery, anyone else had possession of it. This is in sharp contrast to Koch, in which the Commonwealth conceded that another person used the cell phone in question. Likewise, the appellant’s contention at trial that the Sanyo cell phone which “flew out of [appellant’s] lap” was not in his possession is directly contradicted by the circumstantial evidence related to its recovery.

This is not a case in which authorship is based solely on evidence that the text message was sent from a cell phone assigned to an individual like Koch. Here, as opposed to Koch, there are “contextual clues” in the text messages which reveal the sender. Id. at 1005. For example, within hours of the robbery, the text messages on the Sanyo disclose that appellant is a wanted man, and he is fully aware that the police are attempting to apprehend him. See Rodriguez v. State, 273 P.3d 845, 849-850 (2012) citing Koch (collecting cases)(Circumstantial evidence corroborating the sender’s identity may include the context or content of the messages themselves such as where the messages contain factual information or references unique to the parties involved.).

Pa.R.E. 901 demonstrates that evidence may be authenticated in a number of ways. In re F.P., 878 A.2d 91, 94 (Pa.Super. 2005) quoting Commonwealth v. Brooks, 508 A.2d 316, 319 (Pa.Super. 1986)(“A document may be authenticated by direct proof and/or by circumstantial evidence. Proof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing.”)(intemal citations omitted). “[T]he ultimate determination of authenticity is for the jury. A proponent of a document need only present a prima facie case of some evidence of genuineness in order to put the issue of authenticity before the factfinders.” Brooks at 320 (emphasis in original). In Tienda v. State, 358 S.W. 3d 633, 639 (Tex.Ct.App. 2012)(collecting cases), the many ways of authenticating electronic evidence was explained in pertinent part as follows:

Text messages have all been admitted into evidence when found to be sufficiently linked to the purported author so as to justify submission to the jury for its ultimate determination of authenticity. Such prima facie authentication has taken many forms; sometimes the communication has contained information that only the purported sender could be expected to know. Sometimes the purported sender has responded to an exchange of electronic communications in such a way as to indicate circumstantially that he was in fact the author of the particular communication. Sometimes other circumstances, peculiar to the facts of the particular case, have sufficed to establish at least a prima facie showing of authentication.

Id. at 639-640.

Here, the appellant’s possession of the Sanyo cell phone, the exchange of text messages between the appellant and cell phones either seized from a conspirator or the getaway car, and the substance of the text messages, all provide the threshold necessary for authentication. All of the cell phone activity between the appellant and the other cell phones ends immediately prior to robbery, when presumably the three (3) conspirators are on their way to the bank together. Additionally, the absence of text messages after the robbery demonstrates the cell phones were in police custody. Finally, the text messages after the robbery with “Mizzy”, whom appellant calls “sis”, and an unidentified female who calls him “Moe”, leave little doubt that the appellant is attempting to avoid apprehension. Two (2) of the last text messages the appellant received was “They know!!!!!” and “They got my whole farm under survailance [sic]...u gotta bounce asap!!!”

The substance of the text messages were also admissible under the co-conspirator exception to the hearsay rule. Pa.R.E. 803(25)(E)(“A statement by a co-conspirator of a party during the course and in furtherance of the conspiracy). Three (3) requirements must be established: (1) the prosecution must prove the existence of a conspiracy between the declarant and the defendant against whom the evidence is being offered; (2) the Commonwealth must show that the statements were made during the course of the conspiracy; and (3) the Commonwealth must show that the statements were made in furtherance of the common design. Commonwealth v. Holton, 906 A.2d 1246, 1251 (Pa. Super. 2006)(citations omitted)(Statements made by drug buyer were admissible under co-conspirator exception to hearsay rule.).

The circumstances of this bank robbery, i.e. three (3) masked men with guns who proceed to threaten bank employees in the course of sprinting away with over eleven thousand dollars, adequately shows the three (3) were acting in concert. The text messages from cell phones identified and seized from the appellant, Maye, and the Mercury not only prove the existence of the conspiracy, but the identity of the declarants by a “fair preponderance of the evidence.” Id. Each of the text messages precede the bank robbery and are evidence of discussions regarding their planning of the robbery. For example, the text messages describe their intentions to “strike a vault”, and where it was to take place, i.e. “emmaus”.The text messages also discuss the possession of a getaway car and weapon, i.e. “i got a wheel u got a tool so tell me”. Each of these statements was made in furtherance of the common design which included what time and where the participants would meet on the day of the robbery.

Finally, the text messages that were made after the robbery constitute admissions by the appellant. See Rule 803(25)(A); Commonwealth v. Edwards, 588 Pa. 151, 184-185, 903 A.2d 1139, 1157-1158 (2006), cert. denied 127 S.Ct. 2030 (2007). In that regard, “voluntary, extrajudicial statements made by a defendant may be used against [him] although they contain no admission of guilt. Commonwealth v. Tervalon, 463 Pa. 581, 590, 345 A.2d 671, 676 (1975); Commonwealth v. Jones, 247 A.2d 624, 627 (Pa.Super. 1968)(Guilty knowledge recognized by statement “we could get in a lot of trouble over it.”); State v. Pindale, 592 A.2d 300, 309-310 (N.J.Super. 1991)(The conduct of a defendant subsequent to the commission of a crime is relevant when the conduct in question indicates a consciousness of guilt.). Even so, the appellant’s attempt at evading capture was still part of the on-going conspiracy. Commonwealth v. Chester, 526 Pa. 578, 593-594, 587 A.2d 1367, 1374-1375 (1991)(Statements made after murder to third parties were properly admitted under the co-conspirator exception to hearsay rule); see also Commonwealth v. Lambert, 529 Pa. 320, 335, 603 A.2d 568, 575 (1992)(Statement falls within co-conspirator exception because it was part of the conspiracy dealing with flight from the scene).

For all the foregoing reasons, the judgment of sentence should be affirmed.

ORDER

And now, November 29, 2012, it appearing that the appellant has filed aNotice of Appeal in the above-captioned matter; it further appearing that the appellant has filed a “1925 b statement of matters complained of on appeal” pursuant to Pennsylvania Rule of Appellate Procedure 1925(b); it further appearing that our accompanying opinion satisfies the requirements of Pennsylvania Rule of Appellate Procedure 1925(a);

It is hereby ordered that the clerk of courts, criminal division, shall transmit the record in the above-captioned matter to the Superior Court forthwith;

It is further ordered that the clerk of courts shall include with the transmittal of the record the following documents:

1. Notes of testimony from motions in limine held November 14, 2011.

2. Notes of testimony from the trial held November 15, 2011 to November 19, 2011.

3. Notes of testimony from the Sentencing held February 13, 2012.

4. A copy of the appellant’s Pre-Sentence Investigation Report for review by the Superior Court, and that said report shall be sealed to preserve its confidentiality pursuant to Pa.R.Crim.P. 703. 
      
      . 18 Pa.C.S. § 3701(a)(1)(B).
     
      
      . 18 Pa.C.S. §2501, §901.
     
      
      . 18 Pa.C.S. § 2702, (a)(1), (2).
     
      
      . 18 Pa.C.S. § 3701,(a)(1)(h), § 903.
     
      
      . The appellant received three (3) concurrent sentences of not less than ten (10) years nor more than thirty (30) years for the three (3) counts of robbery. He also received a consecutive sentence of not less than ten (10) years nor more than twenty (20) years for the attempted homicide and aggravated assault charges pertaining to Officer Bryfogle. Both of those charges were imposed concurrently with each other. He also received a consecutive sentence of not less than five (5) years nor more than ten (10) years for the aggravated assault charge involving Michelle Andrews, the assistant bank manager. Finally, the appellant received a consecutive sentence of not less than five (5) years nor more than ten (10) years for the charge of Criminal Conspiracy to Commit Robbery. Notes of Testimony, Sentencing (hereinafter N.T.S.H.), pp. 25-29.
     
      
      . 1925(b) Statement of Matters Complained of on Appeal, ¶¶ 1-2.
     
      
      . Sanyo Model SCP 2700. Notes of Testimony, Trial (hereinafter N.T.T.), 11/17/11, p. 266.
     
      
      . The Superior Court was notified of this action by letter dated September 11, 2012.
     
      
      .N.T.T., 11/16/11, pp. 25, 50.
     
      
      . N.T.T., 11/15/16, pp. 97,99.
     
      
      . Id. at pp.99-100; N.T.T., 11/16/11, pp. 14,17,59.
     
      
      
        . Id. at p. 101;N.T.T., 11/16/11, pp. 39, 59.
     
      
      . N.T.T., 11/16/11, pp. 15-16.
     
      
      . Id. at pp. 26-27.
     
      
      
        .Id. at pp.27-28.
     
      
      
        .Id. at pp.27-33.
     
      
      . Id. at pp. 49-50, 66-67.
     
      
      . N.T.T., 11/16/11, pp. 50, 64.
     
      
      . Id. at pp. 58-60.
     
      
      
        . Id. at pp. 42, 57-58.
     
      
      . N.T.T., 11/17/11, pp. 201-205.
     
      
      . N.T.T., 11/16/11, p. 83.
     
      
      . Id. at pp. 84, 161.
     
      
      . Id. at p. 92.
     
      
      . N.T.T., 11/16/11,p. 95.
     
      
      . Id. at p. 96.
     
      
      
        . Id. at pp. 117-119; N.T.T., 11/18/11, pp. 177-180.
     
      
      . N.T.T., 11/16/11, pp. 97-98.
     
      
      . Id. at p. 99.
     
      
      . N.T.T, 11/16/11, pp. 175-176,178,190.
     
      
      
        . Id. at pp. 190,215.
     
      
      . Id. atpp. 131, 170-171,214, 217-219; N.T.T., 11/17/11, p. 72.
     
      
      . N.T.T., 11/16/11, pp. 177,235-236,239.
     
      
      . N.T.T., 11/16/11, pp. 191-192, 197, 199-200,202.
     
      
      . Id. at p. 254.
     
      
      . Id. at pp. 255-260.
     
      
      . Id. at pp. 259-260, 287-289.
     
      
      . Id.
      
     
      
      . Id. at p. 290.
     
      
      . Id. at pp. 206,208.
     
      
      . N.T.T., 11/17/11, pp. 244-251,263.
     
      
      . Id. at pp. 147-148.
     
      
      . N.T.T., 11/18/11, pp. 22-23,28-29.
     
      
      . N.T.T., 11/17/11, pp. 147,151.
     
      
      . See Commonwealth Exhibit 67, which is attached to this Opinion as Exhibit A.
     
      
      . N.T.T., 11/18/1 l,p. 43.
     
      
      . Commonwealth Exhibit 67, #39-#106, #152, #155-#160, #307-#320.
     
      
      . N.T.T., 11/18/11, p. 45.
     
      
      . Id. See also Commonwealth Exhibit 67. #151, #153-#154, #282-#289, #323-#328.
     
      
      . N.T.T., 11/18/11, pp. 52-58.
     
      
      . Commonwealth Exhibit 67, #41-#45.
     
      
      . Motions In Limine, 11/14/11, pp. 21-59; N.T.T., 11/17/11, pp. 335-339; N.T.T., 11/18/11, pp. 10-17.
     
      
      . Commonwealth Exhibit 67, #387, #394.
     
      
      . Commonwealth Exhibit 67, #41, #45.
     
      
      . Id at #97.
     
      
      . Id. at #315-#328.
     
      
      . It is unclear if the appeilant’s hearsay claims pertain to the participants of the text messages. If so, similar contentions have been rejected because the other portions of the conversation place the appellant’s “nontestimonial statements into context.” U.S. v. Hendricks, 395 F.3d 173,184 (3d Cir. 2005); see also U.S. v. Peak, 2006 WL1030226 (E.D. Pa. 2006).
     