J-A04040-18

* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KENNETH MARTIN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1962 MDA 2016

Appeal from the Judgment of Sentence July 7, 2016

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

No(s): CP-41-CR-0001662-2012,

CP-41-CR-0001990-2013

BEFORE: STABILE, J., NICHOLS, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.: FILED JUNE 26, 2018

Appellant, Kenneth Martin, appeals from the judgment of sentence of 

seven and one-half to twenty years of incarceration imposed July 7, 2016, 

following a jury trial resulting in his convictions for burglary, two counts of 

robbery, two counts of conspiracy, aggravated assault, criminal trespass, 

terroristic threats, theft, receipt of stolen property, simple assault, and 

recklessly endangering another person.1 We affirm. 

Appellant and Noor Ford were acquaintances. Notes of Testimony 

(N.T.), 9/18/12, at 44-45. Mr. Ford had been selling heroin for Appellant and 

owed him approximately $1,000.00. Id. On June 19, 2012, Mr. Ford was 

staying in Room 214 at the Econo Lodge in Williamsport, Pennsylvania. Id.

____________________________________________

1 18 Pa.C.S. §§ 3502(a), 3701(a)(1)(ii) and (iv), 903, 2702(a)(4), 

3503(a)(1)(i), 2706(a)(1), 3921(a), 3925(a), 2701(a)(1), and 2705, 

respectively. 
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at 15. Around 11:00 a.m., Appellant and two other men entered Mr. Ford’s 

room without permission. Id. at 74-75, 98. Appellant aimed a semiautomatic pistol at Mr. Ford and threatened to shoot him unless Mr. Ford 

produced the money owed. Id. at 45, 74-75.

When Mr. Ford replied that he did not have any money, Appellant pistolwhipped Mr. Ford and knocked him over. Id. Appellant’s companions began 

to punch and kick Mr. Ford, eventually knocking him unconscious. Id. at 34, 

52. The three men ransacked Mr. Ford’s room, stealing money, heroin, an 

Xbox video game console, backpack, duffelbag, and Mr. Ford’s iPhone. Id. at 

44, 69, 81-82. Video surveillance from the Econo Lodge showed Appellant 

and two other men leaving with a duffel bag and a backpack. Id. at 43, 81-

82. 

One of the assailants took photographs of Appellant punching Mr. Ford 

in the head during the assault and of Mr. Ford’s swollen and bloody face after 

the incident. Id. at 46, 48, 56. The images were then posted to social media 

accounts with suggestions that Mr. Ford had been beaten due to a drug debt.

2

 

Id. at 51, 56-58. 

____________________________________________

2 The photographs were posted on the following Instagram accounts: 

Snoop_Rock, DumbLoud_NR, which was Mr. Ford’s account, and Tee_Pain215. 

N.T., 1/28/16, at 207-08. Instagram is an online photo-sharing and social 

networking service. In re A.E., No. 1506 EDA 2013, (Pa. Super. Ct. filed June 

17, 2014). “Instagram, which is owned by Facebook, Inc., describes itself as 

‘a fun and quirky way to share your life with friends through a series of 

pictures.’ The platform allows users to ‘post’ images online to share with their 

‘followers’ or the public. Instagram also permits users to ‘like’ or comment on 
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Mr. Ford called a friend, who assisted him in reaching a hospital. Id. at 

14, 16. Hospital personnel treated his injuries and contacted the police. Id.

27-28. Trooper Tyson Havens had known Mr. Ford for a few years prior to 

this June 2012 incident Id. at 28. Prior to going to the hospital, Trooper 

Havens went to the Econo Lodge to view the room where Mr. Ford was 

assaulted and saw the blood spatter and layout of the room. Id. at 40, 49. 

Trooper Havens also viewed the surveillance footage from the Econo Lodge, 

which enabled him to identify two of the assailants as Terrence Forsythe, also 

known as “Tee Pain,” and Michael Wills. Id. at 41, 44. 

Next, Trooper Havens visited Mr. Ford in the hospital. Mr. Ford told 

Trooper Havens that he was “struck with a pistol, punched and kicked by an 

individual named Snoop, by an individual named Dark, and by a third 

individual whose name he did not know.” Id. at 34-35. Mr. Ford also gave 

Trooper Havens the number for his stolen iPhone. Id. at 46. This number 

was used to post photographs of the assault on Instagram. Id.; see also, 

supra, at n.2. 

During a second interview with police, Mr. Ford described the assailant 

he knew as “Snoop,” to be a man with the number “13” tattooed between his 

eyes. Id. at 39. Based on the description of the tattoo, Trooper Havens was 

able to identify “Snoop” as Appellant. Id. at 51, 62-63. During a third 

____________________________________________

one another's image posts.” Graham v. Prince, 265 F. Supp. 3d 366, 372 

n.2 (S.D.N.Y. 2017) (citation to record omitted). 
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interview, Mr. Ford signed a statement typed by Trooper Havens after making 

several redactions out of fear for his safety because of threats from Appellant. 

Id. at 83-84, 91. 

During the course of the investigation, Helena Yancey, the mother of 

one of Mr. Ford’s children, informed Mr. Ford that photographs of the assault 

had been posted on Instagram. Id. at 46. Mr. Ford informed Trooper Havens, 

who requested Ms. Yancey forward screenshots of the photographs to him. 

Id. at 51; N.T., 1/28/16, at 176, 179-80. Upon further investigation, Trooper 

Havens determined that numerous Instagram accounts had posted or 

commented on the photographs. N.T., 9/18/12, at 50-81. Using this 

information, Trooper Havens secured a court order to obtain from Instagram 

the images and comments posted, as well as all relevant account information. 

Id. at 48, 51; N.T., 1/28/16, at 205. Instagram complied with the court order, 

providing a zip drive containing the photographs and account information 

along with a certificate of authenticity. N.T., 9/18/12, at 18.3

In September 2012, Mr. Ford failed to appear at the scheduled 

preliminary hearing. As a result, the Commonwealth asserted that Mr. Ford 

was unavailable as a witness and sought to introduce his statements made to 

____________________________________________

3 Based on the sources of the posted images and comments, the following 

accounts were included on the court order: Snoop_Rock, DumbLoud_NR, 

Tee_Pain215, Bok_WP_59, and MoneyChaser. N.T., 9/18/12, at 50-81; N.T., 

1/28/16, at 207-08. 
J-A04040-18

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the police. N.T., 9/13/12, at 16. The Commonwealth further asserted that 

Appellant waived his right to confront the witness because he was responsible 

Mr. Ford’s unavailability.

4

 Id. The trial court did not rule from the bench but 

indicated that an order would issue later that day. Id. at 54. Thus, the 

hearing was continued. No such order appears in the record. Nevertheless, 

five days later, the hearing continued, and the court referenced its prior ruling 

on Mr. Ford’s unavailability and permitted the Commonwealth to introduce

statements made by Mr. Ford to the police. N.T., 9/18/12, at 3, 27-47. 

At the conclusion of the hearing, the trial court held for court all of the 

charges except for burglary. Id. at 123. In June 2013, the Commonwealth 

refiled the burglary charges at docket No., CP-41-CR-0001990-2013. Prior to 

a second preliminary hearing on the burglary charge, Mr. Ford was located 

and held on a material witness warrant.5 N.T., 3/10/14, at 61. The burglary 

____________________________________________

4 There was evidence that Mr. Ford had fled from the area because of threats 

received from Appellant. Trooper Havens testified that Mr. Ford told him that 

if Appellant or his people found out about his cooperation, he and his family 

would be put at risk and that he had received numerous calls from Appellant 

and others threatening him. N.T., 9/13/12, at 20. Trooper Havens also 

testified that, on June 26, 2012, Mr. Ford had received sixteen calls from 

Appellant, with the longest call lasting 371 seconds. Id. at 21, 25. On this 

day, Mr. Ford sent Trooper Havens several text messages claiming that he 

had been high on syrup, i.e., Vicodin, and Percocet at the time he initially 

recorded his statements. Id. at 21-22. 

5 The record indicates that there was a separate, second preliminary hearing 

on the burglary charge, at which Mr. Ford was present but refused to 

cooperate. See N.T., 3/10/14, at 12. However, this transcript does not 

appear in the record. 
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charge was held for court, and the trial court granted the Commonwealth’s 

motion to consolidate the charges against Appellant. See Trial Court Order, 

1/16/14. 

At a hearing held in March 2014 to address an omnibus motion filed by 

Appellant, Mr. Ford testified that he could not remember the assault or any 

statements made to Trooper Havens. N.T., 3/10/14, at 44-50. The trial court 

admitted the statements given to Trooper Havens over Appellant’s standing 

objection.

6

 Id. at 66-68, 72-90. At the conclusion of the hearing, the court 

stated that it would review the evidence and issue an opinion. Id. at 99. 

In its opinion, the trial court stated that: 

The Commonwealth first argues that this court is bound ... 

to the coordinate jurisdiction rule. The coordinate jurisdiction rule 

provides that judges of coordinate jurisdiction sitting in the same 

case should not overrule each other’s decisions. Departure from 

this principle, however, is allowed “in exceptional circumstances 

such as where there has been an intervening change in the 

controlling law, a substantial change in the facts or the evidence 

giving rise to the dispute in the matter, or where the prior holding 

was clearly erroneous and would create a manifest injustice if 

followed.”

Here, there was a change in the facts or evidence giving rise 

to the dispute in the matter. When Judge Butts made her forfeiture 

by wrongdoing ruling, [Mr.] Ford was not available for the 

preliminary hearing because he could not be located. The 

Commonwealth presented audio and written statements from 

Ford and testimony from Trooper Havens that Ford left town and 

refused to disclose his whereabouts because he was concerned for 

his safety and the safety of his family. Ford has since been located 

and detained on a material witness warrant. The Court finds that 

____________________________________________

6 The trial court deferred its decision on Appellant’s objection on the basis of 

hearsay. See N.T., 3/10/14, at 74. 
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this is a sufficient change in the facts to justify a reexamination of 

the forfeiture by wrongdoing ruling. 

Despite this change in the facts, however, the court reaches 

the same conclusion. Although Ford was physically present to 

testify, he allegedly could not remember any of the conversations 

or statements he made to Trooper Havens. ... 

... It was apparent to the court that Ford was feigning a lack 

of memory to avoid admitting anything in [Appellant’s] presence. 

In fact, in several of the previous written and recorded statements

Ford specifically asked Trooper Havens if the statements would be 

disclosed to [Appellant]. Notably, Ford never denied making the

statements that Trooper Havens had attributed to him.

Despite Ford's claim of lack of memory, he admitted that his 

signature was on the letter admitted as Commonwealth's Exhibit 

4. This letter states in relevant part: "You expect me to testify on 

your behalf then get shipped to a Philly jail where Im [sic] told 

more then [sic] once someone will get to me? This is where doing 

the right thing can depend on how you view things... 

This letter was also consistent with and similar to recorded 

statements Ford made to Trooper Havens and Williamsport 

Bureau of Police Agent Stephen Sorage, as well as another letter 

that was sent to Judge Butts, which the Commonwealth 

[submitted] as exhibits through a motion to reopen the record... 

As a whole, the evidence presented by the Commonwealth 

established forfeiture by wrongdoing to a preponderance of the 

evidence. In light of this ruling, [Mr.] Ford’s statements are not 

considered hearsay and are admissible pursuant to Pa.R.E. 

804(b)(6). 

See Trial Court Opinion and Order, 9/24/14, at 5-7 (internal citations 

omitted). Thus, the court found that there had been forfeiture by wrongdoing 

and the statements of Mr. Ford were admissible. Id. at 7. The court denied 

Appellant’s motion. Id. 

In June 2015, trial commenced before the Honorable Dudley N. 

Anderson. N.T., 6/9/15, at 1. However, there were several disruptive 
J-A04040-18

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incidents involving supporters of Appellant that made jurors sufficiently 

uncomfortable that a mistrial was declared. See N.T., 6/11/15, at 73-85, 96-

133. A new trial was scheduled before the Honorable Michael J. Williamson, 

but on the day before it was to begin, this case was reassigned from Judge

Williamson to the Honorable Marc F. Lovecchio. N.T., 1/28/16 at 5-6. As a 

result of the sudden reassignment, prior to trial, Appellant presented an oral 

motion to dismiss, alleging improper ex parte communication between the 

prosecutor’s office and President Judge Nancy L. Butts. Id. at 20. According 

to Appellant, he was prejudiced by the removal of Judge Williamson. Id. at 

20-21.7 

On the day of trial, the court conducted a hearing on the motion and 

permitted Appellant to call District Attorney Eric Linhardt to testify. Id. at 12. 

He testified that he was:

concerned about his -- at best I would describe it as 

unprofessional conduct during those three trials [earlier in the 

week] and what I believed was possible judicial misconduct, that 

I felt I had a responsibility to let the president judge know about

that ... I didn't ask that he be reassigned to other criminal cases. 

I just asked that he not preside over any more cases in the county 

because I didn't think it was appropriate that he was presiding 

over trials.

Id. at 14, 17. Following the hearing, the trial court denied the motion, 

concluding that the Appellant’s assertions of prejudice were merely 

speculative. Id. at 27. 

____________________________________________

7 Appellant suggested without support that Judge Williamson may have ruled 

favorably on his pretrial motions. Id. 
J-A04040-18

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The Commonwealth then proceeded on its motion to have Mr. Ford again 

declared unavailable as a result of Appellant’s wrongdoing. The parties agreed 

that Mr. Ford could testify in the presence of the jury. See N.T., 1/28/16, at

37-38, 130. Mr. Ford stated he could not remember the assault. Id. at 97-

99. Thus, Judge Lovecchio again found that Mr. Ford was unavailable. Id. at 

97-99, 128. The court found further that Appellant had forfeited his right to 

cross-examine Mr. Ford because of his own wrongdoing. Id. at 128-29. The 

trial court then permitted the Commonwealth to introduce Mr. Ford’s prior oral 

and written statements. Id. at 112-16. 

Following the trial, the jury convicted Appellant of the aforementioned 

charges. On July 7, 2016, Appellant was sentenced to four and one-half to 

ten years of incarceration for burglary, followed by a consecutive sentence of 

three to ten years for one count of robbery, for an aggregate sentence of 

seven and one-half to twenty years of incarceration.8 Appellant timely filed a 

____________________________________________

8 After a lengthy sentencing hearing, the trial court imposed sentence. While 

the certified record includes a detailed sentencing order, which may well have 

been dictated from the bench, we note with disapproval that the notes of 

testimony do not reflect that the presiding judge stated the judgement 

imposed on the record. Rather, the transcript merely indicates in a 

parenthetical, “WHEREUPON Court entered order.” N.T., 7/7/16, at 46. Even 

where, as here, no sentencing complaint has arisen, this omission may have 

contributed to unnecessary confusion. See, e.g., Sentencing Order, 7/7/16, 

at 1-2 (unpaginated) (imposing three to ten years of incarceration for 

burglary, to be served consecutive to a four and one-half to ten year sentence 

for robbery, for an aggregate sentence of seven and one-half to twenty years 

of incarceration);Trial Court Opinion (TCO), 5/24/17, at 3 (suggesting that the 

aggregate sentence imposed was fifteen to thirty years of incarceration); 

Appellant’s Brief, 8/23/17, at 9 (seemingly citing to first page of the 
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post-sentence motion, a supplemental post-sentence motion, and additional 

motions for bail and modifications of bail. 

Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) 

statement. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion. 

On appeal, Appellant raises the following issues: 

1. Whether the trial court erred in permitting a witness to testify 

before a jury and subsequently rule the witness was 

unavailable? 

2. Whether the trial court erred substantively in determining that 

[Appellant] had forfeited his right to confrontation by

wrongdoing?

3. Whether the trial court erred in denying [Appellant]’s motion 

to dismiss based upon prosecutorial misconduct when the 

district attorney contacted the president judge to have a judge 

removed from hearing a case? 

4. Whether the trial court erred in permitting lay testimony 

concerning [I]nstagram and its authenticity? 

____________________________________________

sentencing hearing transcript, which is merely a cover sheet, and suggesting 

that the aggregate sentence imposed was seven and one-half to fifteen years 

of incarceration). Further, the sentencing order itself is not without obvious 

error. The order suggests that Appellant’s conviction at count 5, a robbery 

graded as a second-degree felony, merges for sentencing purposes with his 

conviction at count 2, a second robbery offense graded as a first-degree 

felony. Sentencing Order. 7/7/17, at 2 (unpaginated) (similarly suggesting 

that Appellant’s separate convictions for two counts of conspiracy merge). 

While the court in its discretion may impose a concurrent sentence for distinct 

crimes or, perhaps, no further penalty, Appellant’s multiple counts of robbery 

do not merge in this case. As the facts adduced at trial demonstrate, during 

the course of committing a theft, Appellant (1) threatened Mr. Ford with 

immediate, serious bodily injury, 18 Pa.C.S § 3701 (a)(1)(ii), when he 

threatened to shoot Mr. Ford with a handgun and (2) inflicted bodily injury 

upon Mr. Ford, 18 Pa.C.S. § 3701 (a)(1)(iv), when he manually beat him about 

the head causing injuries requiring hospitalization). 
J-A04040-18

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See Appellant’s Brief at 3 (capitalization omitted). 

In Appellant’s first two issues, he challenges evidentiary decisions of the 

trial court; as such, our review is limited. The standard of review for 

evidentiary rulings is an abuse of discretion. Commonwealth v. Hicks, 151 

A.3d 216, 224 (Pa. Super. 2016), appeal denied, 168 A.3d 1287 (Pa. 2017). 

In particular, it is well settled that: 

[t]he admission of evidence is solely within the discretion of the 

trial court, and a trial court's evidentiary rulings will be reversed 

on appeal only upon an abuse of that discretion. An abuse of 

discretion will not be found based on a mere error of judgment, 

but rather occurs where the court has reached a conclusion that 

overrides or misapplies the law, or where the judgment exercised 

is manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will. 

Id. (internal citations and quotations omitted). 

First, Appellant asserts that the trial court erred procedurally when it 

determined that Appellant had forfeited his right to confront and crossexamine Mr. Ford. See Appellant’s Brief at 11, 14. Appellant notes that Mr. 

Ford was called to the stand in the presence of the jury. See Appellant’s Brief 

at 13. According to Appellant, this was inappropriate, as there should be a 

separate hearing to determine whether forfeiture by wrongdoing applies. Id.

at 12 (citing in support U.S. v. Ledbetter, 141 F.Supp.3d 786 (S.D. Ohio 

2015), and Commonwealth v. Terenda, 301 A.2d 625 (Pa. 1973)). Despite 

this assertion, Appellant concedes that there is no clearly defined procedure

in Pennsylvania. Id. at 11. 
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Appellant has waived this claim, as the record demonstrates that 

Appellant agreed that Mr. Ford should testify before the jury. N.T., 1/28/16, 

37-38, 130; see also Commonwealth v. Baumhammers, 960 A.2d 59, 73 

(Pa. 2008) (holding that an issue is waived where an appellant fails to raise a 

timely objection); see also Pa.R.A.P. Rule 302(a) (“Issues not raised in the 

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

Accordingly, we conclude that Appellant is not entitled to relief. 

Baumhammers, 960 A.2d at 73. 

Absent waiver, we note that Appellant’s argument is without merit. The 

Ledbetter court, referenced by Appellant, determined that a pretrial hearing 

was most appropriate to determine whether a defendant has forfeited his right 

of confrontation.9 However, the court also stressed flexibility, observing that 

“[b]enefits and drawbacks abound for any procedural approach.” Ledbetter, 

141 F.Supp.3d at 793. The court was rightly concerned that a forfeiture-bywrongdoing determination be made before permitting the jury to hear an 

unavailable witness’ statements. Id. (noting, for example, that this (1) best 

preserves the presumption of innocence; (2) avoids the possibility of a 

mistrial; or (3) improperly influencing the jury’s ultimate verdict). We agree, 

but in this case, the jury heard no statements given by Mr. Ford to 

____________________________________________

9 This Court is not bound by the decisions of federal courts, but it may rely on 

them for persuasive authority. See Commonwealth v. Herbert, 85 A.3d 

558, 565 n.8 (Pa. Super. 2014). The forfeiture-by-wrongdoing exception 

defined in Pa.R.E. 804(b)(6) is identical to F.R.E. 804(b)(6). 
J-A04040-18

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investigators until after the court had reaffirmed its previous forfeiture-bywrongdoing decision. Moreover, the court reaffirmed its decision outside the 

presence of the jury. See N.T., 1/28/16, at 128-129. To be clear, Mr. Ford 

was called to the stand merely to confirm that he had no memory of the 

alleged assault. Id. at 36-38. This testimony was relevant to his availability 

as a witness. See Pa.R.E. 804(a)(3). He provided no testimony relevant to 

the separate, forfeiture-by-wrongdoing determination. See Pa.R.E. 

804(b)(6). Thus, the concerns voiced by the Ledbetter court are not 

implicated here. Further, Appellant’s reliance on Terenda is misplaced. In 

that case, our Supreme Court determined that the trial court had erred in 

permitting the Commonwealth to call co-indictees to the stand, knowing they 

would invoke their Fifth Amendment rights. Terenda, 301 A.2d at 629. 

According to the Supreme Court, (1) the jury knew of the crucial relationship 

between the defendant and these co-indictees; (2) their invocation permitted 

the jury to draw an inference adverse to the defendant; and (3) defendant 

was deprived of his right to challenge this inference. Id. Here, again, the 

court made its forfeiture-by-wrongdoing determination prior to admitting Mr. 

Ford’s statements and outside the presence of the jury. Therefore, no 

improper inference could be drawn. 

Second, Appellant asserts that the trial court erred “substantively in 

determining that [Appellant] had forfeited his right to confrontation by 

wrongdoing[.]” See Appellant’s Brief at 3 (unnecessary capitalization 
J-A04040-18

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omitted).10 According to Appellant, the Commonwealth failed to introduce 

testimony from Mr. Ford establishing that his unavailability was caused by 

Appellant. Id. at 16. Rather, according to Appellant, the only relevant 

testimony from Mr. Ford was introduced at the omnibus pretrial motion 

hearing, at which Mr. Ford testified that he (1) did not remember telling the 

detectives that anyone had threatened him; (2) did not trust the prosecution; 

and (3) on cross-examination, that no one had ever threatened him. Id. 

Appellant continues, “without additional proof of wrongdoing,” Mr. Ford’s 

testimony was merely unhelpful to the Commonwealth. Id. Thus, Appellant 

concludes, without citation to authority, Mr. Ford’s limited testimony was 

insufficient to establish forfeiture by wrongdoing. Id. at 16-17. 

Initially, we observe that Appellant again risks waiver, though on 

different grounds than on his first issue. Here, Appellant has failed to cite to 

any authority in support of his assertion that testimony from the unavailable 

witness is necessary to establish forfeiture by wrongdoing. Id. at 15-17; see 

____________________________________________

10 In the Argument section of his brief, Appellant suggests the court “erred 

substantively in determining that [Mr.] Ford was unavailable.” Id. at 15 

(emphasis added). This is an issue distinct from that preserved by Appellant. 

A witness’ availability is addressed by criteria defined in Pa.R.E. 804(a); 

whereas exceptions to the rule against hearsay that are dependent upon the 

unavailability of the witness are defined in Pa.R.E. 804(b). The confusion 

caused by Appellant’s presentation of his argument is only increased by his 

apparent concession that, in fact, the Commonwealth established Mr. Ford’s 

unavailability. Id. at 15-16 (citing Pa.R.E. 804(a)(3) and stating that Mr. Ford 

testified on several occasions that he could not recall the incident). We 

admonish Appellant that his arguments must be properly preserved and 

developed and that he must conform to our Rules of Appellate Procedure. 
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Wirth v. Commonwealth, 95 A.3d 822, 837 (Pa. 2014) (“Where an appellate 

brief fails to provide any discussion of any claim with citation to relevant 

authority ... that claim is waived. It is not the obligation of an appellate court 

to formulate appellate’s arguments for him.”) (formatting modified; citation 

omitted); see also Pa.R.A.P. 2119(a). 

Moreover, Appellant’s bald assertion is devoid of merit. See, e.g.,

Commonwealth v. King, 959 A.2d 405, 411, 414-16 (Pa. Super. 2008)

(permitting an officer to read into the record the deceased victim’s statements 

to establish forfeiture by wrongdoing); Ledbetter, 141 F.Supp.3d at 788-90, 

(permitting hearsay testimony of an officer, the victim’s attorney, and her 

friend to establish forfeiture by wrongdoing). 

Nevertheless, we note the following. Essentially, Appellant challenges 

the discretion exercised by the trial court in admitting statements previously 

made by Mr. Ford to investigators. These statements constituted hearsay, as 

they were offered to prove the truth of the matter asserted. Pa.R.E. 801(c). 

Generally, hearsay testimony is inadmissible, unless it falls within an 

enumerated exception. Pa.R.E. 802. One exception allows for a witness’ outof-court statement to be admitted, if the defendant’s wrongdoing caused the 

witness to be unavailable. A defendant forfeits his right to confrontation where 

his own wrongdoing procured the unavailability of a witness. King, 959 A.2d 

at 415-16 (Pa. Super. 2008) (citing Giles v. California, 128 S.Ct. 2678, 

2682-83 (2008), which “recogniz[ed] the limited applicability of the forfeiture 

by wrongdoing doctrine, [and] ... reaffirmed its commitment to the long-held 
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principle that a defendant forfeits his confrontation rights when he 

intentionally procures the unavailability of a witness ... [which] represents a 

codification of the common-law forfeiture rule...”); see also U.S. v. White, 

116 F.3d 903, 911 (D.C. Cir. 1997) (holding that “[t]he defendant who has 

removed an adverse witness is in a weak position to complain about losing the 

chance to cross-examine him.”). 

Here, the record supports the trial court’s finding of forfeiture by 

wrongdoing. As noted previously, Mr. Ford was called to testify and denied 

any memory of the assault. Thus, the court reaffirmed its prior decision to 

find him unavailable. N.T., 1/28/16, at 97-99. Thereafter, following an in 

camera argument, the court indicated that its previous finding of forfeiture by 

wrongdoing would stand. Id. at 99-129. Evidence of wrongdoing was 

adduced pretrial and consisted of the following: (1) three recorded 

conversations with Mr. Ford to Trooper Havens describing his assault, 

Appellant, and the reason for his assault; (2) phone records of calls from 

Appellant to Mr. Ford; (3) evidence that on the day Mr. Ford fled the area, he 

received a long call from Appellant and then sent a text message to Trooper 

Havens retracting his previous statements; (4) multiple letters written and 

signed by Mr. Ford11; (5) photographs from Instagram, Mr. Ford’s hotel room,

____________________________________________

11 One of the letters written by Mr. Ford stated in relevant part: "You

expect me to testify on your behalf then get shipped to a Philly jail where 

Im [sic] told more then [sic] once someone will get to me? This is where 

doing the right thing can depend on how you view things ...” See TCO, 
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and the hospital where Mr. Ford was treated; and (6) recorded prison 

conversations of Appellant, in which he admitted to having a friend take

pictures of Mr. Ford and commenting on Trooper Havens’ characterization of 

the photographs in his Affidavit of Probable Cause. See N.T., 1/28/16, at 97-

129.

Accordingly, Appellant is not entitled to relief, as the trial court did not 

abuse its discretion in finding forfeiture by wrongdoing and subsequently 

ruling that Appellant had lost his right to cross-examine Mr. Ford. King, 959 

A.2d at 415-16; Giles, 128 S.Ct. at 2682-83; White, 116 F.3d at 911. 

In Appellant’s third issue, he challenges the denial of his motion to 

dismiss. Our standard of review is an abuse of discretion. Commonwealth 

v. Robinson, 122 A.3d 367, 372-73 (Pa. Super. 2015) (finding abuse “where 

the judgment is manifestly unreasonable or where the law is not applied or 

where the record shows that the action is a result of partiality, prejudice, bias 

or ill will”). 

Appellant asserts that an ex parte communication between the 

Commonwealth and President Judge Butts was an impermissible attempt at 

judge shopping. See Appellant’s Brief at 17. On the day before his trial, 

Appellant’s case was reassigned from Judge Williamson to Judge Lovecchio. 

See id. Appellant avers that this change was a result of the conversation 

____________________________________________

9/24/14, at 6-7; see also 3/10/14, at 46-48 (where Appellant read the 

letter into the record in its entirety). 
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between District Attorney Eric Linhardt and President Judge Butts, where the 

District Attorney expressed his concerns regarding Judge Williamson’s 

decision making in previous cases that week, only mentioning Appellant’s case

as one of the upcoming trials. Id. at 17-19. During the conversation, District 

Attorney Linhardt did not ask for a specific judge to replace Judge Williamson, 

but only asked that Judge Williamson be removed from all cases. See N.T., 

1/28/16, at 26. Appellant concedes that there is no direct evidence of judge 

shopping but suggests that the Commonwealth’s actions create the 

appearance of impropriety. See Appellant’s Brief at 19. Appellant contends 

that this constituted prosecutorial misconduct warranting dismissal. Id.

Generally, the Pennsylvania Supreme Court looks on judge shopping 

with disfavor. See Municipal Publications, Inc. v. Court of Common 

Pleas of Philadelphia County, 489 A.2d 1286, 1289 (Pa. 1985) (holding

that where a judge has personal knowledge of the facts and testified as a 

witness, he must recuse himself and have another judge decide the issue of 

his impartiality, noting only in dicta, that judge shopping is condemned.); see 

also Commonwealth v. Schab, 383 A.2d 819 (Pa. 1978) (holding that 

neither common law nor statute empowered the Attorney General to 

supersede the power of the local district attorney to initiate the prosecution of 

a case; making a minor mention of there being no evidence of judge 

shopping). 

However, Appellant’s argument is without merit, as there is no evidence 

of judge shopping, and therefore no undue prejudice by the change in judicial 
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assignments. First, Appellant presented no evidence that the District Attorney 

specifically requested or preferred that Judge Lovecchio preside over 

Appellant’s case. In fact, he had the opportunity to ask this during crossexamination and did not. More specifically, District Attorney Eric Linhardt did 

not request that Judge Williamson be replaced but asked that he not preside 

over any cases. N.T., 1/28/16, at 26. Second, when Appellant’s case was 

mentioned in the conversation, it was in the context of several upcoming 

cases. Further, the trial court, when addressing this issue found that Appellant 

had not established prejudice. Id. at 27. We find no abuse of discretion in 

the trial court’s finding that Appellant failed to prove that the change of 

presiding judge prejudiced him. Municipal Publications, Inc., 489 A.2d at 

1289; Schab, 383 A.2d at 819.

Moreover, we note the following. Absent a violation of Rule 8.2 of the

Rules of Professional Conduct, an attorney has an obligation to report concerns 

with a judge’s behavior. See Pa.R.P.C. 8.3 (providing that “[a] lawyer who 

knows that a judge has committed a violation of applicable rules of judicial 

conduct that raises a substantial question as to the judge's fitness for office 

shall inform the appropriate authority.”); see also Pa.R.P.C. 8.2 (providing 

that “[a] lawyer shall not make a statement that the lawyer knows to be false 

or with reckless disregard as to its truth or falsity concerning the qualifications 

or integrity of a judge ...”). Thus, we discern no abuse of the court’s discretion 

in denying Appellant’s motion to dismiss. Municipal Publications, Inc., 489 

A.2d at 1289; Schab, 383 A.2d at 819. 
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Finally, Appellant challenges other evidentiary decisions of the trial 

court. As discussed, supra, we review the evidentiary rulings of the trial court 

for an abuse of discretion. See Hicks, 151 A.3d at 224.

Appellant asserts that the court erred in permitting lay testimony 

concerning Instagram. See Appellant’s Brief at 3, 19. Appellant has failed to 

develop this assertion in any meaningful fashion. Accordingly, we deem it 

waived. Wirth, 95 A.3d at 837; Pa.R.A.P. 2119(a). 

Nevertheless, from our review of the record, it appears that Appellant 

objected to Ms. Yancey’s testimony regarding her use of Instagram. See N.T., 

01/28/2016, at 174 (objecting that Ms. Yancey was not qualified to discuss 

how Instagram works). The court overruled this objection, concluding that 

she could “talk about how she used [Instagram] and her understanding of how 

it worked.” Id. In its Pa.R.A.P. 1925(b) opinion, the court explained further 

that Ms. Yancey was competent to describe her experience using Instagram, 

as it was not based upon any scientific, technical, or other specialized 

knowledge. See TCO, 05/24/2017, at 25 (citing in support Pa.R.E. 701). 

According to the trial court, Ms. Yancey testified in a manner “rationally 

related” to her perception and “helpful to communicating a narrative.” Id. 

We agree. Ms. Yancey merely described her experience using the Instagram 

service, as anyone with an Instagram account would. Her testimony was not 

based upon scientific or technical expertise. It was helpful to understanding 

her subsequent explanation that the posted photographs of Mr. Ford were 
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concerning and prompted her to send screenshots of them to the police. See

Pa.R.E. 701. Thus, we discern no abuse of the court’s discretion.

Appellant also suggests that the court erred in admitting the 

photographs, as there was no reliable evidence connecting the Instagram 

postings to Appellant. Appellant’s Brief at 20 (citing in support United States 

v. Browne, 834 F.3d 403 (3d Cir. 2016) (discussing the proper authentication 

of Facebook chat logs)). According to Appellant, the lay testimony from Ms. 

Yancey and the certificate of authenticity from Instagram were insufficient to 

authenticate the photographs properly.12

Recently, as a matter of first impression, a panel of this Court discussed 

the evidentiary requirements necessary to tie a social media post to an 

individual. See Commonwealth v. Mangel, --- A.3d --- , 2018 WL 1322179 

(Pa. Super. 2018) (citing Browne favorably). Drawing upon prior precedent 

in which this Court has examined the proper authentication of cell phone text 

messages, the Mangel panel recognized the challenges presented in 

authenticating electronic communications but concluded that authentication 

____________________________________________

12 Again, we admonish Appellant to preserve properly and develop his 

arguments. In his Pa.R.A.P. 1925(b) statement, Appellant identified three 

distinct issues regarding the Instagram photos, challenging (1) the 

admissibility of Ms. Yancey’s lay testimony, (2) the authentication of the 

photographs, and (3) a foundation for their relevance. See Appellant’s 

Pa.R.A.P. 1925(b) Statement, 12/27/2016, at 2. In his Statement of the 

Questions Presented, Appellant seemingly abandoned the latter two. See

Appellant’s Brief at 3, 19. Nevertheless, we shall briefly review Appellant’s 

claim. 
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was possible “within the existing framework of Pa.R.E. 901 and Pennsylvania 

case law.” Id. at *6. According to the panel,

Initially, authentication social media evidence is to be evaluated 

on a case-by-case basis to determine whether or not there has 

been an adequate foundational showing of its relevance and 

authenticity. See In re F.P., 878 A.2d at 96. Additionally, the 

proponent of social media evidence must present direct or 

circumstantial evidence that tends to corroborate the identity of 

the author of the communication in question, such as testimony 

from the person who sent or received the communication, or 

contextual clues in the communication tending to reveal the 

identity of the sender.

Id. (citing also Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 

2011)).

Appellant’s reliance upon Browne is misplaced, as the issue raised by 

him before the trial court is different than that addressed in Browne.

13 During 

trial, Appellant argued that there was insufficient evidence that the 

photographs accurately portrayed the assault of Mr. Ford. See N.T., 1/28/16, 

at 219. The question being answered by the circuit court in Browne, and by 

this Court in Mangel, is how to authenticate properly text or chat message 

____________________________________________

13 During Appellant’s argument he clarifies his argument by stating: “The issue 

regarding the text messages and who posted these things, I believe, is a 

different issue because I think the issue of the photograph, the ideal way that 

this stuff comes in is by a person who was there and who could authenticate 

it. The fallback position is that there may be this silent witness theory that 

through circumstantial evidence they can identify that it supports the 

reliability of the photograph ... There is a specific way that a photograph comes 

into evidence and how it has to be authenticated...under most circumstances 

you need somebody to come in to -- who was there who could say that this is 

a fair and accurate depiction as to what took place “ See N.T., 1/28/16, at 

216-17, 219. 
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evidence, mindful of the unique challenges posed by social media. The 

question before this Court is not whether Appellant posted the Instagram 

images, but whether the Instagram posts accurately portrayed Mr. Ford’s 

assault. For this reason, the authority Appellant relies on in his brief is 

inapposite, and he again risks waiver of this issue. 

However, photographic evidence may be authenticated by testimony 

that the photograph fairly and accurately depicts the incident or object 

portrayed. Commonwealth. v. McKellick, 24 A.3d 982, 986-87 (Pa. Super. 

2011) (citing Nyce v. Muffley, 119 A.2d 530, 532 (Pa. 1956) (requiring that 

“[a] photograph must be verified either by the testimony of the person who 

took it or by another person with sufficient knowledge to state that it fairly 

and accurately represents the object or place reproduced as it existed at the 

time of the accident”)); see also Pa.R.E. 901(a) (“[t]he 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 claims.”).

Here, the Commonwealth presented sufficient direct and circumstantial 

evidence tending to support the authentication of the photographs of Mr. 

Ford’s assault. Initially, we observe that Appellant does not accurately depict 

the evidence adduced by the Commonwealth. In addition to testimony from 

Ms. Yancey and the certification from Instagram, the Commonwealth 

presented additional evidence of authenticity. 
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For example, the Commonwealth presented direct evidence of 

Appellant’s recorded prison conversations in which Appellant discusses 

directing a friend to take the pictures and posting them on Instagram and in 

which he disputes Trooper Havens’ characterization of the images. See N.T.,

1/28/16, at 225. The Commonwealth also presented the compelling 

circumstantial testimony of Trooper Havens, who observed both the room and 

Mr. Ford on the day of the incident and could identify Mr. Ford in the 

photographs. Id. at 160-61, 222. Further, through Corporal Brown’s 

testimony, the Commonwealth presented corroborating circumstantial 

photographic evidence of the hotel room, depicting blood stains, a headboard, 

and other background that matched the photographs posted on Instagram. 

Id. at 133-36, 222. There was also evidence presented that the bearded,

black male delivering a punch to Mr. Ford in one of the photographs closely 

resembles Appellant. Id. at 223. Based on this evidence, the court did not 

err in admitting the Instagram posts, as the evidence was properly 

authenticated. McKellick, 24 A.3d at 986-87. Thus, we discern no abuse of 

discretion. Koch, 39 A.3d at 1005. 

Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/26/2018