J-S21036-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA 

 v. 

SHAYNE D. SWEET 

 Appellant 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 2080 EDA 2023 

Appeal from the Judgment of Sentence Entered January 6, 2022 

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0003424-2019 

BEFORE: LAZARUS, P.J., NICHOLS, J., and MURRAY, J. 

MEMORANDUM BY MURRAY, J.: FILED AUGUST 6, 2024

 Shayne D. Sweet (Appellant) appeals, nunc pro tunc,

1

 from the 

judgment of sentence entered following his convictions by a jury of seconddegree murder, robbery, possession of an instrument of crime (PIC), and 

criminal conspiracy.2 After careful consideration, we affirm. 

 The trial court summarized the underlying facts relevant to this appeal: 

Around 7 p.m. on December 3, 2017, Mike Massaro 

[(Massaro)] left his brother’s house after watching football all 

afternoon. He texted Savannah Pharo [(Pharo)], whom he had 

met while she was working as a dancer at a strip club, to see if 

she would meet up with him in exchange for $600. Massaro had 

previously met up with Pharo on approximately ten occasions in 

exchange for money. Massaro picked Pharo up at around 9:30 

____________________________________________ 

1

 Appellant successfully sought reinstatement of his direct appeal rights by 

means of a timely filed Post Conviction Relief Act (PCRA) petition. See 42 

Pa.C.S.A. §§ 9541-9546. 

2 See 18 Pa.C.S.A. §§ 2502(b), 3701(a)(1)(i), 907(a), 903. 
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p.m. from the house Pharo lived in with [Appellant]. Massaro and 

Pharo drove to South Philadelphia, where they picked up food and 

went to see a Christmas light[s] display[,] before going to 

Massaro’s house. Once at Massaro’s house, Pharo and Massaro 

ate their food and watched a movie in Massaro’s bedroom. 

At some point during the movie, Massaro offered to drive 

Pharo home after he grew frustrated with Pharo’s continual text 

messaging and the fact that she would not stay overnight, after 

she had told Massaro she would. Pharo declined the ride and told 

Massaro that [Appellant] would pick her up. Unbeknownst to 

Massaro, Pharo and [Appellant] had planned a scam to trick 

Massaro into giving Pharo an additional $300. Pharo falsely told 

Massaro that she needed $300 to pay her rent and showed him a 

text message that appeared to be from someone named “Alicia” 

demanding the rent money. The text from “Alicia” was actually 

created by [Appellant,] using a texting app that permitted the user 

to text from a different telephone number and use a false name. 

After seeing the text, Massaro told Pharo he could not give her the 

additional money because he had already given her all the money 

he had on him when he picked her up. 

Trial Court Opinion, 10/18/23, at 3-4 (citations omitted). 

 Pharo contacted Appellant and asked him to pick her up from Massaro’s 

home. However, 

[Appellant] texted Pharo stating “I’ll come down the [sic] and rob 

[Massaro] with my scheme [sic] mask and knife.” When 

[Appellant] arrived sometime after 11 p.m., Pharo got into 

[Appellant’s] car and [Appellant] told Pharo that he was going to 

rob Massaro. [Appellant] then got out of his car and attempted to 

enter Massaro’s house. When he could not enter, [Appellant] 

returned to the car[,] brandishing a knife and wearing a ski 

mask[,] and asked Pharo to go back inside. Pharo went back to 

Massaro’s house and told Massaro that she needed to use the 

bathroom. Pharo went upstairs to the bathroom where she 

remained for approximately ten minutes. 

While in the bathroom, Pharo heard Massaro come 

upstairs[,] followed a few minutes later by someone else. At that 

point, Pharo heard Massaro ask[,] “What the fuck are you doing 

in my house[?]” and then heard [Appellant] say something about 
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a computer before Massaro yelled[,] “what the fuck did you do 

that for?” [Appellant] then banged on the bathroom door, told 

Pharo to get out of the bathroom, and stated that he “fucked up.” 

As Pharo left the bathroom, she turned to the left and saw 

Massaro’s foot at the bottom of the bed in his room and assumed 

Massaro was hurt. [Appellant] and Pharo left the house and, when 

they got back into [Appellant’s] car, Pharo called 911. At 

[Appellant’s] urging, Pharo ended her first 911 call but then 

changed her mind and called back. 

On their way to [Appellant’s] house, [Appellant] pulled over 

at Penn Treaty Park in order to throw his clothing and knife in the 

river. However, police pulled up to [Appellant’s] car and told 

[Appellant] and Pharo that they could not be in the park after 

hours. [Appellant] and Pharo left the park and drove to Delaware 

Avenue, near the intersection of Richmond Street and Castor 

Avenue, where [Appellant] asked Pharo to throw his clothing in 

the sewer. Pharo threw [Appellant’s] ski mask, knife, sweater, 

pants, and sneakers in the sewer. 

Id. at 4-5 (citations omitted). 

 At about 1:00 a.m., police arrived at Massaro’s home. When no one 

answered the door, officers called Pharo. The trial court described what next 

transpired: 

While on the phone, Pharo told officers that Massaro was still 

inside. [Philadelphia Police] Officer [Job] Henri went back to 

Massaro’s home and continued to knock on the door. While doing 

so, Officer Henri noticed the door was unlocked and proceeded to 

enter the home. Once inside, Officer Henri observed blood spatter 

in the front room of the house and then saw Massaro lying 

unresponsive on the floor with a stab wound to his abdomen. 

Medics arrived shortly thereafter and pronounced Massaro dead 

at 1:36 a.m. The medical examiner determined that [Appellant’s] 

cause of death was a stab wound to the torso and his manner of 

death was homicide. 

Id. at 3-5 (citations omitted). Pharo originally claimed that she held the knife 

that killed Massaro, but later indicated Appellant had committed the murder. 
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 On January 6, 2022, a jury convicted Appellant of the above-described 

offenses. That same day, the trial court sentenced Appellant to the mandatory 

sentence of life in prison without parole (LWOP) for his second-degree murder 

conviction. The trial court imposed a consecutive sentence of 10-20 years in 

prison for Appellant’s conviction of conspiracy, and a consecutive 21⁄2 to 5 

years for his conviction of PIC. Thus, the trial court imposed an aggregate 

sentence of life in prison plus 121⁄2 to 25 years. Appellant filed a post-sentence 

motion on January 19, 2022. On January 24, 2022, the trial court denied the 

motion as untimely filed. 

 As previously mentioned, the PCRA court reinstated Appellant’s direct 

appeal rights nunc pro tunc. Thereafter, Appellant timely filed this appeal. 

Appellant and the trial court have complied with Pa.R.A.P. 1925. 

 Appellant presents the following issues for review: 

1. Whether the evidence was sufficient to sustain the verdicts for 

robbery, conspiracy to commit robbery[,] and by extension[,] 

second[-]degree murder[,] as the Commonwealth failed to 

prove that a theft either occurred or was actually attempted at 

the time the victim was killed? 

2. Whether the verdict was against the weight of the evidence 

with respect to the question of whether Appellant played any 

role in the murder of the victim? 

3. Whether the court’s ruling that data received from the cell 

service providers did not constitute “statements” within the 

meaning of the rule against hearsay was supported by record 

evidence insofar as no testimony was offered to establish how 

the data was stored, preserved, retrieved, prepared or 

transmitted to law enforcement? 
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4. Whether the court erred in concluding that the Commonwealth 

proved that the text messages admitted during trial were 

property authenticated within the meaning of [Pa.R.E.] 901-

903? 

5. Whether it was error for the court to allow the Commonwealth 

to offer a surreptitiously recorded conversation during which 

[Appellant] was a participant in violation of Title 18, Chapter 

57 of the Pennsylvania Consolidated Statutes (Wiretapping and 

Electronic Surveillance) or, in the alternative, whether counsel 

was ineffective in failing to move for exclusion of the same? 

Appellant’s Brief at 9-10 (capitalization modified). 

 Appellant first challenges the sufficiency of the evidence underlying his 

conviction of second-degree murder, because[,] “[q]uite simply, evidence of 

a theft or attempted theft was lacking.” Id. at 15. Appellant claims that 

Pharo’s testimony failed to establish that “the killing occurred during the 

course of the robbery.” Id. at 17 (emphasis omitted). Appellant argues her 

testimony demonstrated only that Pharo “heard voices,” and did not hear a 

robbery. Id. at 18. Thus, Appellant argues the evidence failed to establish 

the robbery underlying his second-degree murder conviction. See id. at 17. 

 Appellant additionally argues the testimony of forensic pathologist Dr. 

Linsay Simon, a Commonwealth witness, indicated Massaro could have 

“walked into the knife and caused the fatal injuries.” Id. According to 

Appellant, the evidence “simply did not cross the requisite threshold” in 

proving that the underlying incident was a robbery. Id. at 19. 

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 
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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 an [Appellant’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.... 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. Brockman, 167 A.3d 29, 38 (Pa. Super. 2017) (citation 

omitted). 

 Under the Crimes Code, “[a] person is guilty of a robbery if, in the course 

of committing a theft, he ... inflicts serious bodily injury upon another[.]” 18 

Pa.C.S.A. § 3701(a)(1)(i). A robbery under this section is a second-degree 

felony. Id. § 3701(b)(1). 

 This Court has explained the elements of criminal conspiracy as follows: 

In Commonwealth v. Lambert, 795 A.2d 1010 (Pa. Super. 

2002) [(en banc)], this Court set forth four factors to consider in 

deciding if a conspiracy existed. Those factors were: “(1) an 

association between alleged conspirators; (2) knowledge of the 

commission of the crime; (3) presence at the scene of the crime; 

and (4) in some situations, participation in the object of the 

conspiracy.” Id. at 1016. A “conspiratorial agreement can be 

inferred from a variety of circumstances including, but not limited 

to, the relation between the parties, knowledge of and 

participation in the crime, and the circumstances and conduct of 

the parties surrounding the criminal episode.” Commonwealth 

v. Feliciano, 67 A.3d 19, 26 (Pa. Super. 2013) (en banc). “The 

conduct of the parties and the circumstances surrounding such 

conduct may create a web of evidence linking the accused to the 

alleged conspiracy beyond a reasonable doubt.” Id. [(citation 
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omitted)]. A person guilty of robbery as a co-conspirator is 

necessarily guilty of conspiracy to commit robbery. 

Commonwealth v. Mitchell, 135 A.3d 1097, 1102-03 (Pa. Super. 2016). 

The second-degree murder statute requires proof that a victim died 

while a defendant “was engaged as a principal or an accomplice in the 

perpetration of a felony.” 18 Pa.C.S.A. § 2502(b). The “perpetration of a 

felony” includes “[t]he act of the defendant in engaging in ... attempting to 

commit robbery ... by force or threat of force.” Id. at 2502(d). Section 2502 

does not specifically cite to the offense of robbery as codified in 18 Pa.C.S.A. 

§ 3701(a)(1)(i). However, we have recognized, “the General Assembly’s 

intent is best expressed through the plain language of the 

statute.” Commonwealth v. Gamby, 283 A.3d 298, 306 (Pa. 2022) (citation 

omitted). The plain language of section 2502(d) indicates that the legislature 

used the term “robbery” broadly to include any kind of felony-graded robbery 

as the predicate offense to second-degree murder. See Commonwealth v. 

Lehman, 311 A.3d 1034, 1044 (Pa. 2024) (“Generally, the plain language of 

the statute provides the best indication of legislative intent.” (citation and 

internal quotation marks omitted)). 

We further observe that the statute defining second-degree murder 

does not include an element requiring proof that the defendant committed

the predicate felony. See 18 Pa.C.S.A. § 2502(b), (d). Our Supreme Court 

has confirmed this interpretation by holding that 
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all the felony murder statute requires is for the jury to conclude 

that a criminal homicide was committed while the defendant 

participated in a completed or an attempted predicate offense. 

Commonwealth v. Miller, 35 A.3d 1206, 1212 (Pa. 2012) (emphasis added). 

The Commonwealth “is not required to prove that the accused actually 

committed the predicate offense.” Id.

The trial evidence, viewed in a light most favorable to the 

Commonwealth, established the following. Pharo testified that on December 

3, 2017, Massaro paid for Pharo’s companionship at his house. N.T., 1/4/22, 

at 113, 115. Massaro picked Pharo up at around 9:45 p.m., and the two drove 

around looking at Christmas lights. Id. at 117. Eventually, Massaro and Pharo 

arrived at Massaro’s house. Id. at 118. The two proceeded upstairs. Id. 

While at Massaro’s home, Pharo continuously texted Appellant. Id. Pharo 

testified that Massaro 

got frustrated with me and asked why I was on the phone the 

whole time. And I’m supposed to sleep over [at Massaro’s,] but I 

didn’t tell [Appellant] that, so I told [Massaro] that I couldn’t sleep 

over. 

 [Massaro] was like, You know, you were supposed to sleep 

over. And I was like, Well, I can’t because of my daughter. So 

he was like, Okay, I’ll drive you home, and I was like, No, it’s fine. 

I’ll just get a ride home. ... And I texted [Appellant] to pick me 

up. 

Id. at 118-19. 

 Pharo also testified regarding a scheme she and Appellant had used to 

solicit money from Pharo’s companions. Id. at 119-20. Using a texting 

application, Appellant would pretend to be Pharo’s landlord, who would 
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demand immediate payment of the rent. Id. at 120-21. However, when 

Pharo attempted to procure “rent” money from Massaro using this scheme, 

Massaro declined, as he had no additional funds. Id. at 121-22. When the 

plan failed, Pharo texted Appellant to pick her up from Massaro’s house. Id.

at 122. 

At trial, Pharo read and confirmed the text messages from the 

application and Pharo’s text-message exchanges with Appellant. Id. at 123-

33. In particular, Pharo confirmed Appellant had text messaged her, “Get that 

money.” Id. at 132. Pharo further explained that Appellant “texted me and 

said he would come and rob” Massaro. Id. at 133. Pharo testified regarding 

Appellant’s text message to her: 

[Pharo:] [J]ust looking at this screen, it says from [Appellant]. 

This is from his phone number. I’ll come down the [sic] and rob 

him with my scheme [sic] mask and knife. 

Id. Pharo explained “scheme mask” meant “ski mask.” Id. 

 Pharo testified regarding what transpired after she left Massaro’s house: 

I walked down the block and I waited for [Appellant]. And he 

pulled up, but it was ... a while later, probably, like, after a half 

hour later after I texted him. 

.... 

I get in the car and [Appellant] starts driving and he pulls over 

onto the right. And we’re in the car and he’s telling me[,] ... I’m 

going to go rob him, and I’m like, No, [Massaro] said he doesn’t 

have any money or anything so there’s no point. Like, let’s just 

go home. [Appellant] was like, All right. I’m gonna get out of the 

car and I’m gonna try and see if I can get in the house. 
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 So [Appellant] gets out of the car and he walks to 

[Massaro’s] house. And I guess he tried to go in, but I don’t know 

what happened because I wasn’t there. But he came back to the 

car and said, I couldn’t get in and I think the neighbors s[aw] me, 

so you got to go in the house. 

 And I told him I didn’t want to. I said I want to go home, 

like, to the baby. ... [H]e just kept tellin[g] me no, just go in the 

house.... 

Id. at 134-35. 

Pharo testified that she went back to Massaro’s house. Id. at 137. 

According to Pharo, she told Massaro that she needed to use his bathroom. 

Id. Pharo testified that Appellant entered behind her “wearing a ski mask, a 

black hoodie, gray joggers, and white sneakers[.]” Id. at 195. Pharo 

admitted that the ski mask was not “fully on when I seen him[,]” but was on 

top of Appellant’s head. Id. 

Upon entering Massaro’s home, Pharo went upstairs to the bathroom. 

Id. at 137. While inside the bathroom, Pharo snorted a crushed Percocet 

tablet. Id. at 138. Pharo testified what next transpired: 

I hear[d] somebody come up the steps and I guess it was 

[Massaro]. And then maybe like five minutes later, I heard 

somebody come up the steps ... again. And then I heard [Massaro] 

say, What the fuck are you doing in my house, you junkie? And 

then [Appellant] was saying something about a computer. And 

[Massaro] was like, Oh, ... what the fuck did you do that for? And 

then I didn’t hear anything else after that. 

.... 

[Appellant] comes and bangs on the bathroom door, and he’s like, 

Get out of the bathroom, Vann [(meaning Pharo)]. And I open up 

the bathroom door and ... [Appellant’s] face was real pale and he 
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was like, I fucked up. I was like, What do you mean you fucked 

up? 

 So ... I came out of the bathroom and I looked to the left, 

and I [saw Massaro’s] foot. So I ... didn’t know what happened. 

I just thought that ... he got hurt or something. And we left and I 

called the cops when ... I got in the car. 

Id. at 138-39. 

Audio of Pharo’s 911 call was played to the jury. Id. at 178. According 

to Pharo, a police officer returned her call. Id. at 182. Pharo “told them that 

my friend needed help and [the officer] called me, and they asked me to call 

[Massaro’s] phone and I did.” Id. Pharo attempted to call Massaro three or 

four times. Id. Pharo expressly testified that Appellant killed Massaro. Id.

at 189. 

 Pharo further testified that after the murder, Appellant drove to Penn 

Treaty Park, where he unsuccessfully attempted to dispose of his clothing 

worn during the attack. Id. at 140. Immediately thereafter, he drove to 

Delaware Avenue, where he told Appellant to throw his pants, sneakers and 

sweater into the sewer. Id. at 140-41. Pharo complied. Id. at 141. 

 During the police investigation, Pharo initially told police that 

[s]omebody came into [Massaro’s] house and tried to rob him. 

But I didn’t know ... that he was stabbed or anything, so [police] 

told me that. 

Id. at 143. Eventually, Pharo gave police a statement claiming that she held 

the knife that killed Massaro. Id. 
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 Pharo admitted that she subsequently pled guilty to third-degree 

murder, robbery, and conspiracy. Id. at 189. At the time of trial, Pharo had 

not yet been sentenced. Id. at 190. Pharo denied being promised a specific 

prison term as part of her plea deal. Id. at 191. However, Pharo’s plea 

agreement provided that, if Pharo complied with the agreement, 

the district attorney will testify at her sentencing, inform the 

sentencing court of the extent of [] Pharo’s cooperation during any 

testimony she provided at any hearing or trial, and agree that her 

aggregate sentence shall be no more than the mitigated range of 

the standard matrix of the sentencing guidelines for the lead 

charge in this case .... 

Id. at 192. Pharo also confirmed identifying Appellant as Massaro’s killer at 

Appellant’s preliminary hearing. Id. at 195. 

The Commonwealth additionally presented the testimony of a forensic 

pathologist, Dr. Simon. Id. at 149. Dr. Simon explained that she has been 

employed by the medical examiner’s office for six and one-half years. Id. Dr. 

Simon testified that she reviewed files regarding the post-mortem 

examination of Massaro. Id. at 150. Her review included 

reviewing the entire case file, which means the circumstances that 

were initially reported to us regarding the death, the identification 

statement given by the next of kin, the autopsy report, the 

toxicology report, and any photography that may have been taken 

during the exam. 

Id. Dr. Simon testified that Massaro’s knife wound went through his sternum 

and into the aorta. Id. at 157. 

During cross examination, Dr. Simon opined that, theoretically, a person 

could 
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walk into a knife like that. But like I said, when [the knife] gets 

to a bone, it would be very difficult to keep walking at enough 

force to make the knife go through. I imagine realistically[,] for 

a person to theoretically run into the knife, they would really need 

to be running or charging at the knife for it to perforate his 

sternum. 

Id. at 163 (paragraph break omitted). However, Dr. Simon opined that 

Massaro’s death was caused by a stab wound of the torso, and the manner of 

death was a homicide. Id. at 158. 

 The trial court concluded sufficient evidence supported Appellant’s 

convictions. Trial Court Opinion, 10/18/23, at 9. The trial court opined 

Pharo’s testimony presented “compelling circumstantial evidence that 

[Appellant] was attempting to steal from Massaro when he stabbed and killed 

him.” Id. The trial court further observed, 

Pharo’s testimony was corroborated by other compelling evidence. 

The Commonwealth presented an audio recording of [Appellant] 

that was made by Joseph Friend, Pharo’s stepfather, a day after 

the murder occurred. N.T.[,] 1/5/22[,] at 205-09. In that 

recorded conversation, [Appellant] admitted his responsibility for 

killing Massaro. N.T.[,] 1/5/22[,] at 208-09; Commonwealth 

Exhibit 58. Pharo’s testimony was also corroborated by text 

messages on her phone from [Appellant,] as well as cell site 

location data. [Appellant] texted Pharo just before 11:45 p.m. on 

the night of the murder that he would “come down the [sic] and 

rob him with my scheme [sic] mask and knife.” N.T.[,] 1/5/22[,] 

at 133; N.T.[,] 1/5/22[,] at 126-27. Approximately 20-30 

minutes after this text message, cell site location data established 

that [Appellant] had left his home and arrived in Massaro’s 

neighborhood. N.T.[,] 1/5/22[,] at 185. Pharo and [Appellant’s] 

phones stayed in the area for approximately an hour. N.T.[,] 

1/5/22[,] at 185-86. Both phones arrived back to [Appellant’s] 

house at approximately the same time. See N.T.[,] 1/5/22[,] at 

187-89. Accordingly, the record establishes that the 

Commonwealth presented overwhelming evidence that 

[Appellant] was attempting to commit a theft from Massaro when 
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he stabbed and killed him, and that he committed the crimes of 

conspiracy, robbery and second[-]degree murder. 

Id. The record supports the trial court’s reasoning, and its legal conclusion is 

sound. Id. Because sufficient evidence supported Appellant’s convictions, 

Appellant’s first issue merits no relief. 

 In his second issue, Appellant claims the trial court improperly rejected 

his challenge to the verdict as against the weight of the evidence. Appellant’s 

Brief at 19. Appellant argues his conviction “was based on the testimony of 

an utterly incredible witness with every motive in the world to implicate 

[Appellant].” Id. According to Appellant, Pharo “killed the victim and then 

blamed [Appellant] in order to avoid a lengthy prison sentence.” Id. He 

argues Pharo’s testimony “was entitled to no weight,” and he should have 

been acquitted. Id.

 Appellant again argues the evidence failed to establish a robbery. Id.

at 20. He asserts, 

[i]n the same way, the verdict was against the weight of the 

evidence. There was simply no way that any reasonable factfinder 

could have concluded that [Appellant] was involved in a robbery 

or attempted robbery, and by extension, conspiracy or second[-

]degree murder. 

Id. 

A challenge to the weight of the evidence 

is not premised upon trial court error or some discrete and 

correctable event at trial, but instead ripens only after, and 

because of, the jury’s ultimate verdict in the case. As a result, a 

claim asserting that the verdict was against the weight of 

the evidence rests within the trial court’s discretion. We review 
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the trial court’s exercise of discretion in ruling on the claim, and 

not whether the verdict was against the weight of the evidence. 

The trial court is required to consider whether the jury’s verdict is 

so contrary to the evidence as to shock one’s sense of justice and 

the award of a new trial is imperative[.] ... 

.... 

... A motion for new trial on the grounds that the verdict is contrary 

to the weight of the evidence, concedes that there is sufficient 

evidence to sustain the verdict. When ruling on a weight claim, 

the trial court must determine whether certain facts are so clearly 

of greater weight that to ignore them, or to give them equal 

weight with all the facts, is to deny justice.... 

Commonwealth v. Holt, 273 A.3d 514, 531-32 (Pa. 2022) (internal 

quotation marks and citations omitted). 

 Appellant’s claim basically challenges the credibility of Pharo. We 

decline Appellant’s invitation to act as fact-finder, reweigh the evidence, and 

disturb credibility findings based on a cold record. See Commonwealth v. 

Sanchez, 262 A.3d 1283, 1288-89 (Pa. Super. 2021) (“[I]t is not the function 

of the appellate court to substitute its judgment based on a cold record for 

that of the trial court. The weight to be accorded [] evidence is exclusively 

for the fact finder, whose findings will not be disturbed on appeal if they are 

supported by the record.” (citations omitted)). “One of the least assailable 

reasons for granting or denying a new trial is the lower court’s conviction that 

the verdict was ... against the weight of evidence[.]” Commonwealth v. 

Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted). 
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Our review discloses no abuse of the trial court’s discretion in denying 

Appellant’s challenge to the weight of the evidence. Accordingly, Appellant’s 

second issue merits no relief. 

 In his third issue, Appellant argues that the trial court improperly 

permitted the Commonwealth to present cellular site data, in violation of the 

rule against hearsay evidence. Appellant’s Brief at 21. Appellant claims the 

Commonwealth offered the cellular location data “for the purpose of bolstering 

the testimony of its star witness,” Pharo. Id. Appellant asserts this data was 

prepared outside of the courtroom. Id. at 22. According to Appellant, 

[t]he purpose for which the Commonwealth used the data was to 

show the movement of the phones it attributed to both [] Pharo 

and [Appellant] around the time of the killing. It was used to 

suggest that Pharo was testifying truthfully in [c]ourt. The 

information—and more specifically, the accuracy of the 

information—was critical. 

Id. 

 Appellant claims the information was transcribed and provided to the 

Commonwealth in response to a subpoena. Id. However, Appellant argues, 

there was no evidence regarding the data’s collection, storage, and accuracy. 

Id. Appellant claims the Commonwealth asserted no exception to the rule 

against hearsay evidence. Id. at 23. Further, Appellant argues the trial 

court’s error in admitting the evidence was not harmless. Id. at 24. Appellant 

points to Pharo’s motivation for testifying in this case, including her arrest and 

plea deal. Id. at 24-25. 

Our standard of review is well-settled: 
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In reviewing a trial court’s ruling on the admissibility of evidence, 

our standard of review is one of deference. Questions concerning 

the admissibility of evidence are within the sound discretion of the 

trial court, and its discretion will not be reversed absent a clear 

abuse of discretion. An abuse of discretion is not merely an error 

of judgment, but is rather the overriding or misapplication of the 

law, or the exercise of judgment that is manifestly unreasonable, 

or the result of bias, prejudice, ill[-]will[,] or partiality, as shown 

by the evidence of record. Furthermore, if in reaching a 

conclusion the trial court [overrides] or misapplies the law, 

discretion is then abused and it is the duty of the appellate court 

to correct the error. 

Commonwealth v. Thompson, 106 A.3d 742, 754 (Pa. Super. 2014) 

(internal citations and quotation marks omitted). 

 Regarding the rule against hearsay evidence, 

Pennsylvania’s hearsay rule explains that hearsay is a statement 

that: “(1) the declarant [did] not make while testifying at 

the current trial or hearing and (2) a party offers in evidence to 

prove the truth of the matter asserted in the statement.” Pa.R.E. 

801(c)(1)-(2). The Rule defines a “statement” as “a person’s oral 

assertion, written assertion, or nonverbal conduct, if the person 

intended it as an assertion,” and a “declarant” is “the person who 

made the statement.” Id. at 801(a)-(b) (emphasis added). 

In Commonwealth v. Wallace, 289 A.3d 894 (Pa. 2023), our 

Supreme Court recently held that GPS data is not hearsay 

evidence. Id. at 907-08. The Wallace Court explained that GPS 

location data is not a statement made by a person; rather, it is 

data collected electronically. Id. at 904. As such, GPS location 

data cannot constitute hearsay because Rule 801 is clear that “a 

statement is a written or oral assertion of a person.” Id.

(emphasis in original). Accordingly, pursuant to the holding 

in Wallace and the plain language of Rule 801, an automatically 

generated GPS record ... does not constitute a statement, and 

therefore, is not hearsay.... 

Commonwealth v. Vance, ___ A.3d ___, 2024 Pa. Super. LEXIS 191, *8-9, 

2024 PA Super 99 (Pa. Super. filed May 15, 2024) (slip op. at 7-8). 
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The trial court rejected Appellant’s claim of error: 

Here, [Appellant] contends that cell site location data tracking the 

movement of the phones of [Appellant] and Pharo were 

inadmissible hearsay. However, at trial, Agent James Dunlap, an 

expert in the field of historic cell site analysis, testified that cell 

site data is generated electronically when a chip inside a cellphone 

connects with cellphone tower in the network to complete a text 

or call. N.T.[,] 1/5/22[,] at 164-175. Because the data are not 

assertions of a person, they are not hearsay. Wallace, 289 A.3d 

at 904-906. No relief is due. 

Trial Court Opinion, 10/18/23, at 11. We agree with the trial court’s sound 

reasoning and conclusion. See id. Appellant’s third issue merits no relief. 

See id.

 In his fourth issue, Appellant argues the trial court improperly admitted 

Pharo’s text exchanges with Appellant, without proper authentication. 

Appellant’s Brief at 25. Appellant claims the Commonwealth “offered text 

messages and attributed these messages to [Appellant,] without properly 

authenticating the same.” Id. at 25-26. According to Appellant, 

[t]he text messages came through an app[lication] which had no 

connection to [Appellant] and were in a different name. Moreover, 

Pharo’s claims about the text messages were undermined by the 

fact that the number attributed to Pharo was sending text 

messages after she was in police custody. The jury was thus 

improperly permitted to consider and weigh[] this evidence. 

Id. at 27 (footnoted omitted, emphasis in original). Appellant argues this 

error was not harmless, as the evidence bolstered Pharo’s testimony. Id. 

Pennsylvania Rule of Evidence 901(b)(11) specifically addresses 

the authentication of “digital evidence,” which is defined as “a communication, 

statement, or image existing in an electronic medium,” such as “emails, text 
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messages, social media postings, and images.” Pa.R.E. 901(b)(11), cmt. The 

rule provides that a proponent may show that an individual or entity is 

connected to digital evidence through: 

(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(b)(11). 

 This Court expounded, 

[t]he comment to Rule 901 further clarifies that “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.” Pa.R.E. 901, cmt. Furthermore, 

[c]ircumstantial evidence of identifying content under 

Pa.R.E. 901(b)(11)(B)(i) may include self-identification or 

other distinctive characteristics, including a display of 

knowledge only possessed by the author. Circumstantial 

evidence of content may be sufficient to connect the digital 

evidence to its author. 

Circumstantial evidence of ownership, possession, control, 

or access to a device or account alone is insufficient for 

authentication of authorship of digital evidence under 

Pa.R.E. 901(b)(11)(B)(ii). See, e.g., Commonwealth v. 

Mangel, 181 A.3d 1154, 1163 (Pa. Super. 2018) (social 

media account bearing [the appellant’s] name, hometown, 

and high school was insufficient to authenticate the online 

and mobile device chat messages as having been authored 

by defendant). However, this evidence is probative in 

combination with other evidence of the author’s identity. 
J-S21036-24 

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Pa.R.E. 901, cmt. 

Commonwealth v. Watkins, ___ A.3d ___, 2024 Pa. Super. LEXIS 141, *8-

9, 2024 PA Super 77 (Pa. Super. filed April 19, 2024) (slip op. at 7). 

 Instantly, the trial court explained why it rejected Appellant’s claim: 

[T]here was ample evidence to prove that the text messages 

admitted at trial were authentic. The authenticity of the text 

messages between the phone numbers of Pharo and [Appellant] 

was established through the testimony of Pharo. Pharo testified 

that, on the night of the murder, she was texting [Appellant] at 

his phone number and could tell from the conversation that she 

was talking to [Appellant], with whom she had [been in] a 

relationship for approximately seven years. N.T.[,] 1/4/22[,] at 

101, 118-34, 203-11; N.T.[,] 1/5/22[,] at 29-30. The text 

message conversation between Pharo and [Appellant’s] phone 

numbers in the hours before the murder pertained to their 

relationship and, specifically, plans for their daughter. N.T.[,] 

1/4/22[,] at 204-05. Furthermore, Pharo knew [Appellant’s] 

phone number and had it saved in her phone under “Shayne.” 

N.T.[,] 1/4/22[,] at 124-25; N.T.[,] 1/5/22[,] at 124. This phone 

number was associated with the phone detectives collected [from 

Appellant] in the case. See N.T.[,] 1/5/22[,] at 99, 124, 166; 

Commonwealth Exhibit 68 ([Appellant’s] Phone Extract). 

Furthermore, Detective Thorsten Lucke, an expert in the field of 

cell phone data examination, testified that, in order to confirm the 

owners of both devices, he looked at the phones’ contents, which 

included photos, emails, and communications. N.T.[,] 1/5/22[,] 

at 100-101. 

Pharo’s testimony also established the authenticity of the 

messages sent to and from the “Alicia” phone number. Pharo 

testified that, on the night of the murder, she was not only texting 

[Appellant] at his phone number but also at the number saved in 

her phone as “Alicia,” which was generated using the text 

[application]. N.T.[,] 1/4/22[,] at 119-25; N.T.[,] 1/5/22[,] at 

24-25. Pharo stated that before she left [Appellant’s] house that 

night, she and [Appellant] planned that he would text her as 

“Alicia” through the text app in order to implement their scheme. 

N.T.[,] 1/4/22[,] at 121-22, 205-07. Pharo stated this was a 
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scheme that she and [Appellant] had used successfully in the past. 

N.T. 1/4/22[,] at 120. 

Finally, at trial, defense counsel argued that certain 

messages in Pharo’s cell phone extraction could not be 

authenticated[,] because they were sent after Pharo was brought 

[into the] homicide [unit] when she was without her phone, and 

that she denied sending the messages. N.T.[,] 1/5/22[,] at 78-

79. However, evidence adduced at trial established that 

[Appellant] was in possession of Pharo’s phone at the time the 

messages were sent. Pharo testified that, when police brought 

her to the homicide unit, she left her phone with her daughter, 

but that [Appellant] also had access to the phone at this time. 

N.T.[,] 1/5/22[,] at 11, 28. 

Accordingly, there was sufficient evidence to establish that 

the text messages admitted at trial were authentic.... 

Trial Court Opinion, 10/18/23, at 13-14. We agree with the sound reasoning 

of the trial court, and affirm on this basis regarding Appellant’s evidentiary 

challenge. See id. Appellant’s fourth issue merits no relief. 

 In his fifth issue, Appellant argues that at trial, the trial court improperly 

permitted the Commonwealth to play audio recordings of Appellant, which 

were made without his knowledge and consent. Appellant’s Brief at 28. 

Appellant claims that the recordings were made in violation of Pennsylvania’s 

Wiretap Act, 18 Pa.C.S.A. §§ 5701-5782. Appellant’s Brief at 28. 

 Our review of the record discloses that Appellant did not raise this issue 

before or during trial. As the trial court cogently explained, 

 [Appellant’s] claim that the [c]ourt erred in allowing the 

Commonwealth to offer the recording was never raised in the trial 

court. [Appellant’s c]ounsel never moved to exclude the recording 

in limine and did not object to the recording when it was presented 

at trial. Accordingly[, Appellant’s] claim is waived. Pa.R.E. 

103(a)[(1)] [(“A party may claim error in a ruling to admit or 
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exclude evidence only ... [if the party] makes a timely objection, 

motion to strike, or motion in limine[,]” and “states the specific 

ground, unless it is apparent from the context[.]”); Pa.R.A.P. 

302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”).... 

Trial Court Opinion, 10/18/23, at 15. We agree with the trial court’s reasoning 

and its legal conclusion is sound. See id. Appellant waived this issue and is 

entitled to no relief. 

 To the extent Appellant claims ineffective assistance of counsel in failing 

to preserve this issue, we observe the following: “Generally, a criminal 

defendant may not assert claims of ineffective assistance of counsel on direct 

appeal.” Commonwealth v. James, 297 A.3d 755, 760 (Pa. Super. 2023). 

“Instead, such claims are to be deferred to PCRA review.” Id. Our Supreme 

Court has recognized three exceptions to this general rule: (1) where “there 

are extraordinary circumstances in which trial counsel’s ineffectiveness is 

apparent from the record and meritorious to the extent that immediate 

consideration best serves the interests of justice”; (2) where “there is good 

cause shown, and the defendant knowingly and expressly waives his 

entitlement to seek subsequent PCRA review of his conviction and sentence;” 

and (3) “where the defendant is statutorily precluded from obtaining 

subsequent PCRA review.” Id. at 761 (internal quotation marks omitted). 

 Appellant’s claim does not fall within any of these exceptions. See 

Trial Court Opinion, 10/18/23, at 16. As such, this issue is not reviewable on 

direct appeal. See James, 297 A.3d at 761 (recognizing that claims not 
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falling within any of the exceptions must be deferred until collateral review). 

Appellant’s fifth issue fails. We therefore affirm Appellant’s judgment of 

sentence. 

 Judgment of sentence affirmed. 

Date: 8/6/2024