J-A33005-14

2015 PA Super 88

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DONTE MOSLEY

Appellant No. 827 EDA 2014

Appeal from the Judgment Entered February 24, 2014

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0007437-2012

BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

OPINION BY LAZARUS, J.: FILED APRIL 20, 2015

Donte Mosley appeals from his judgment of sentence, entered in the 

Court of Common Pleas of Delaware County, after being convicted by a jury 

of three counts of possession of a controlled substance1and one count of 

possession with the intent to deliver a controlled substance (cocaine).2 The 

Commonwealth sought, and the sentencing court applied, the mandatory 

minimum sentence of five years’ imprisonment pursuant to 18 Pa.C.S. § 

7508 (drug trafficking sentencing/penalties). Mosley was sentenced to a 

term of 66-132 months’ imprisonment for the intent to deliver charge, an 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(16). 

2 35 P.S. § 780-113(a)(30).
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aggravated-range sentence.3 After careful review, we affirm Mosley’s 

convictions, vacate his judgment of sentence and remand for resentencing.

On August 13, 2012, at approximately 2:00 p.m., Ridley Township 

Police Officer Leo Doyle was on patrol in the Secane area in response to a 

complaint about illegal drug activity at the Presidential Square Apartments 

on South Avenue. James Latticlaw, the complainant, had told the police that 

squatters were selling drugs out of his apartment. Sergeant Charles Palo 

and Corporal Daniel Smith, also members of the Ridley Township Police 

Department, accompanied Officer Doyle to the Secane address in a separate 

police vehicle. When the two police vehicles arrived at the apartment 

complex, the police observed a black Cadillac driving towards them and saw 

Latticlaw pointing toward the Cadillac.

After seeing Latticlaw gesture toward the Cadillac, both police vehicles 

followed the car as it pulled out of the parking lot. While only a few feet 

behind the Cadillac, Officer Doyle saw Mosley, the driver of the Cadillac, put 

his arm out of the driver’s side window and drop two clear plastic bags.4 

Corporal Smith picked up the two bags while Officer Doyle activated his siren 

and police lights and pulled the Cadillac over. Corporal Smith contacted 

____________________________________________

3 The possession charges merged, for sentencing purposes, with the intent 

to deliver charge.

4 Each bag was knotted at the top. One bag contained five bags (baggies) of 

a white powdery substance. N.T. Trial Testimony, 9/16/13, at 177. The 

other bag contained three bags (baggies) of suspected heroin. Id.
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Officer Doyle to tell him the baggies contained narcotics.5 Doyle arrested 

Mosley and, in a search incident to arrest, recovered two cellular phones and 

$117.00 in cash from his person. Affidavit of Probable Cause, 8/13/12, at 1. 

No drugs or drug paraphernalia were found on the passenger in the Cadillac.

Prior to trial, Mosley filed a motion to suppress text messages that 

were viewed by a police officer on the two cell phones6confiscated from him 

during the search incident to his arrest. Ridley Township Police Officer John 

McDevitt testified that as Mosley was being processed at the police station 

on the instant charges, the officer viewed texts that kept “popping up” on 

the screens of the mobile phones. Officer McDevitt first testified that the 

phones were already powered on and they required no password or other 

manipulation (like “swiping”) to view the texts. However, the officer later 

testified that he was unable to recall whether he had to swipe anything to 

view the text messages. 

Mosley filed a pretrial motion to suppress the search of the two cell 

phones and the numerous text messages found on them, basing his 

arguments on authentication and hearsay grounds. Mosley filed a second 

____________________________________________

5 The parties stipulated that the Pennsylvania State Police Crime Lab 

evaluated the substances found in the two plastic bags discarded from the 

Cadillac and determined the interior baggies contained 10.5 grams of 

cocaine, 0.64 grams of heroin, and 6 oxycontin pills. The baggies of heroin 

had the words “crazy horse” written on them.

6 One cell phone was a Samsung and the other phone was an HTC.
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motion seeking to suppress all data obtained as a result of a subsequent 

search warrant for the phones. After the suppression hearing, but before 

the court rendered a decision, Mosley filed a motion to open the hearing in 

order to present testimony to prove that the texts could not have been 

viewed by the police unless they took some affirmative action to read them. 

On April 22, 2013, all pretrial motions were denied. 

On September 16-17, 2013, a jury trial was held. At trial, Sergeant 

Kenneth Rutherford, an expert in the field of drugs and drug investigations, 

testified for the Commonwealth. Officer Doyle had contacted Sgt. 

Rutherford about the instant case, gave him basic information about the 

arrest (including what was confiscated at the stop) and asked the sergeant 

to prepare a search warrant. In response, Sgt. Rutherford prepared an 

application for a search warrant,7specifically requesting that the contents of 

the cell phones found on Mosley be searched. Text messages from both cell 

____________________________________________

7 The search warrant identified the following items to be searched and 

seized:

Any and all text messages (incoming and outgoing), email 

messages (incoming and outgoing), photographs, contacts and 

other forms of electronic communication. Any items used to 

keep drug transaction records (spreadsheets etc.). Any and all 

secondary cell phone applications (and its contents) which are 

capable of sending receiving voice calls, text messages, and 

emails. Any and all other contraband. 

Application for Search Warrant and Authorization, 2/28/13, at 1, 4.
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phones revealed personal messages received by Mosley from friends and 

family. Several other text messages were indicative of drug related 

sales/activity. The cell phone report records were marked and admitted into 

evidence at trial. The trial court gave the jury a limiting instruction on the 

text messages.8 

At the conclusion of trial, Mosley was found guilty of possession of a 

controlled substance (oxycodone), possession of a controlled substance 

(heroin), possession of a controlled substance (cocaine), and possession 

with intent to deliver. Mosley was sentenced to 66-132 months’ 

imprisonment, followed by 5 years of state probation. Mosley filed an 

____________________________________________

8 The trial judge gave the following limiting instruction as to text messages:

This evidence is before you for a limited purpose and it is for the 

purpose of tending to show the Defendant is fluent in the 

language used by those persons who deal in illegal drug 

transactions. This evidence must not be construed by you or 

considered by you in any way other than for the purpose I just 

stated. You must not regard this evidence as showing that the 

Defendant is a person of bad character or criminal tendencies 

from which you might include – be inclined to infer guilt. The 

Defendant contends that he is not the transmitter or receiver of 

the text messages. However, you may consider circumstantial 

evidence in evaluating this issue and provide whatever weight 

you deem appropriate thereto.

N.T. Jury Trial, 9/17/13, at 165 (emphasis added). 
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unsuccessful motion in arrest of judgment and/or for a new trial. This 

appeal follows.

On appeal, Mosley raises the following issues for our consideration:9

(1) Did the lower court err in admitting the hearsay 

statements testified to by Officer Leo Doyle regarding a 

telephone call he received as well as a statement made at 

the scene?

(2) Did the lower court err in allowing evidence of text 

messages despite the fact that said messages were not 

properly authenticated, but were also hearsay?

(3) Did the lower court err in failing to suppress evidence of 

text messages taken from the cellphones by the arresting 

officers?

(4) Did the lower court err in failing to suppress the 

information and/or text messages taken from the above 

cellphones as a result of a search warrant since said 

evidence was the “fruit of the poisonous tree”?

(5) Did the lower court err in failing to suppress the said text 

messages taken pursuant to a search warrant from the cell 

phones found on the person of the Appellant as a violation 

of the United States Constitution, Amendments 4 and 14[,] 

and the Pennsylvania Constitution, Article 1, Section 8[,] 

for failure to link the items requested to be searched with 

the alleged crime committed?

(6) Did the lower court err in finding that there was sufficient 

evidence to uphold the verdict and also err in finding that 

the verdict was not against the weight of the evidence?

(7) Did the lower court err in failing to reopen the suppression

hearing to allow Appellant to introduce evidence 

contradicting the police officers concerning their reading of 

the text messages?

____________________________________________

9 We have consolidated our review of issues 2-5, as they are intertwined.
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(8) Was sentencing the Appellant to a five year mandatory 

minimum sentence pursuant to 18 Pa.C.S. [§]7508 illegal 

because the statute was unconstitutional? Admission of 

Officer Doyle’s Statements

Mosley asserts that the trial court erred in admitting hearsay evidence 

regarding “drug activity” offered by Commonwealth witness, Officer Leo 

Doyle. Officer Doyle was the first officer to appear at the scene to 

investigate Latticlaw’s complaint, which led to him following, stopping and 

arresting Mosley. Mosley claims that this hearsay testimony was highly 

prejudicial because it negated his defense (that the passenger in the vehicle 

was the one who controlled the drugs and not him). Mosley also contends 

that admission of the testimony was reversible error as evidence of his guilt 

was not overwhelming.

 While certain out-of-court statements offered to explain a course of 

police conduct are admissible because they are offered merely to show the 

information upon which police acted, some out-of-court statements bearing 

upon police conduct are inadmissible because they may be considered by the 

jury as substantive evidence of guilt, especially where the accused’s right to 

cross-examine and confront witnesses against him would be nullified. 

Commonwealth v. Palsa, 555 A.2d 808, 810 (Pa. 1989). 

Mosley’s arresting officer, Officer Leo Doyle, testified at trial regarding 

a phone call he received from James Latticlaw, who indicated that Mosley 

and a third party were “squatters” selling drugs out of Latticlaw’s apartment. 

Officer Doyle also testified that when he arrived at the apartment complex to 
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investigate the matter, Latticlaw pointed at the black Cadillac driven by 

Mosley, indicating to Officer Doyle that the occupants were the two men who 

had been involved in drug activity at his apartment. Specifically, the 

prosecutor questioned Officer Doyle at trial as follows:

Q: What area did they make a complaint? A specific type of 

crime or of a specific incident that happened in a certain place?

A: Yes.

Q: What – what was that?

A: Drug activity.

Q: Drug activity. And what location?

A: At the 640 South. I forget the exact apartment, but James 

Latticelaw[sic]’s apartment in 640 South Avenue, Presidential 

Square.

* * *

A: I was – the van was in front of me with Sergeant Paylow and 

Corporal Smith and I was behind the van and the black Cadillac 

was coming towards me occupied by two black males. Okay. 

And I also then observed James Latticelaw [sic], who I know 

from running that area and having calls, pointing at the car 

making a motion that that’s the car that was – that had the two 

occupants in it that were why we were there.

N.T. Jury Trial, 9/16/13, at 122-24.

The trial court justified its decision to admit Officer Doyle’s testimony 

as follows:

This [c]ourt properly admitted the statements, as they were 

introduced by the prosecution to show why Officer Doyle went to 

the Presidential Apartments and why his attention was drawn to 

the black Cadillac, not to prove the truth of the matter asserted.
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Trial Court Opinion, 5/15/14, at 6. 

In Commonwealth v. Yates, 613 A.2d 542 (Pa. 1992), the defendant 

was convicted of possession and possession with the intent to deliver. At 

trial, two officers testified why they went to the specific area where the 

defendant was arrested. In their testimony, the officers stated “that an 

informant had notified them that a large black male, i.e. [defendant], was

‘dealing drugs’ at that location.” Id. at 543. The trial court admitted the 

testimony, reasoning that the testimony explained the course of police 

conduct and that, without the testimony, the jury would not have any way of 

knowing why the police went to that location. Even though the trial court 

gave the jury a cautionary instruction, the Supreme Court reversed the 

defendant’s conviction and granted a new trial since the informant’s 

statements were of a highly incriminating nature, contained specific 

assertions of criminal conduct, and would have the unavoidable effect of 

prejudice. Id.

Similarly, Mosely was charged and convicted of possession and 

possession with the intent to deliver. Therefore, Officer Doyle’s statement 

that he responded to Latticlaw’s apartment complex in response to a 

complaint that defendant was conducting “drug activity” would likewise 

unavoidably “have had a prejudicial impact.” Id. Moreover, unlike the trial 

court in Yates, here the judge did not give the jury a cautionary instruction 

despite the defense’s objections to the police officer’s alleged hearsay 

statements. Where Officer Doyle’s testimony contained specific assertions of 
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criminal conduct, it was likely that the jury would interpret this testimony 

from a police officer as substantive evidence of Mosley’s guilt; it also 

deprived Mosley of his right to confront and cross-examine Latticlaw at trial. 

Cf. Commonwealth v. Taggart, 997 A.2d 1189 (Pa. Super. 2010) (where 

officer testified that defendant fit description of robber, and prosecutor cut 

him off and elicited testimony that defendant was not one of robbers 

described in flash information, defendant not deprived of opportunity to 

confront informant who provided information in flash report).

However, “not all error at trial . . . entitles a [defendant] to a new 

trial, and [t]he harmless error doctrine . . . reflects the reality that the 

accused is entitled to a fair trial, not a perfect trial[.]” Commonwealth v. 

West, 834 A.2d 625, 634 (Pa. Super. 2003). Moreover, it is well 

established that “an error which, when viewed by itself, is not minimal, may 

nonetheless be determined harmless if properly admitted evidence is 

substantially similar to the erroneously admitted evidence.” 

Commonwealth v. Story, 383 A.2d 155, 165 (Pa. 1978). 

Because there is relevant, cumulative evidence indicative of drug 

activity, we find that the admission of this out-of-court statement, while an 

abuse of the trial court’s discretion, was harmless error. Here, there was 

independent evidence showing that Mosley threw bags of drugs from a car 

he was driving, while being pursued by the police. Mosley’s possession of 

two cell phones and U.S. currency on his person was consistent with drug 

activity, while the weight and packaging of the drugs was indicative of 
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possession with the intent to deliver. See Commonwealth v. Watson, 945 

A.2d 174 (Pa. Super. 2008) (harmless error exists where erroneously 

admitted evidence was merely cumulative of other untainted evidence which 

was substantially similar to erroneously admitted evidence); see also 

Commonwealth v. Williams (erroneous admission of evidence does not 

necessarily entitle defendant to relief if error is harmless). 

Failure to Suppress Text Messages

Mosley contends that Officers McDevitt and Doyle should have secured 

a search warrant before reading the text messages on the cell phones. 

Recently, in Commonwealth v. Stem, 96 A.3d 407 (Pa. Super. 2014), our 

Court addressed this issue, relying upon the legal analysis and holding of the 

United States Supreme Court in Riley v. Calfornia, 134 S. Ct. 2473 (2014). 

In Riley, the Supreme Court determined that warrantless searches of a 

cellular telephone conducted incident to a defendant’s arrest are 

unconstitutional. Id. at 2495. 

Here, there is no question that Officer McDevitt viewed the text 

messages on the cell phones without first securing a warrant. The record is 

unclear,10 however, regarding whether Officer McDevitt actually “searched” 

____________________________________________

10 Compare N.T. Suppression Hearing, 4/18/13 (McDevitt testifying that he 

did not click on any icon to view messages, but that they just “were popping 

up ... coming up on the screen”) and id. at 83-84 (McDevitt testifying that 

he did not have to do anything to view the messages on the cell phone) 

with id. at 84 (McDevitt testifying that he didn’t recall whether he had to 

swipe anything to view the text messages)
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the phones (i.e., by scrolling through messages, swiping the phone on, or 

otherwise pulling up the texts) like in Stem, where a police officer inspected 

the cell phone after the defendant’s arrest, turned on the phone, hit the 

picture icon and then searched cell phone data. Stem, 96 A.2d at 408. 

However, even if Officer McDevitt improperly searched and viewed text 

messages on the cell phones confiscated incident to Mosley’s arrest, we find 

that because a valid warrant was subsequently issued to search the phones, 

any improper viewing by Officer McDevitt was harmless error.

Our Supreme Court has held that “where there is probable cause 

independent of police misconduct that is sufficient in itself to support the 

issuance of a warrant, the police should not be placed in a worse situation 

than they would have been absent the error or violation under which the 

evidence was seized.” Commonwealth v. Brundidge, 620 A.2d 1115, 

1119-20 (Pa. 1993). 

There is a two-prong test governing the application of the 

independent source doctrine: (1) whether the decision to seek a 

warrant was prompted by what was seen during the initial 

warrantless entry; and, (2) whether the magistrate was 

informed at all of the information improperly obtained. 

Commonwealth v. Ruey, 854 A.2d 560, 564-65 (Pa. Super. 2004).

Here, Sgt. Rutherford, who prepared the warrant, testified at the 

suppression hearing that he never spoke with Officer McDevitt prior to or 

during the process of securing the search warrant for the cellphones. 

Moreover, while Sgt. Rutherford did speak with Mosley’s arresting officer, 

Officer Doyle, who was aware of the content of the text messages and who 
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asked Sgt. Rutherford to prepare the warrant, the record shows that Officer 

Doyle did not discuss the content of the text messages with Sgt. Rutherford. 

N.T. Suppression Hearing, at 4/18/13, at 11-12, 56. Accordingly, we find 

that there was probable cause independent of any alleged misconduct on the 

part of Officer McDevitt in viewing the text messages prior to the issuance of 

a warrant. This probable cause is sufficient in itself to support the 

subsequent warrant secured by Sgt. Rutherford. Ruey, supra.

Admission of Text Messages at Trial

Authentication/Authorship

Mosley next asserts that the trial court improperly permitted testimony 

at trial regarding text messages from the two cellphones taken from his 

person, incident to his arrest, where the messages had never been 

authenticated and constituted inadmissible hearsay.

Admission of evidence is within the sound discretion of the trial court 

and will be reversed only upon a showing that the trial court clearly abused 

its discretion. Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 

1999). Generally, the requirement of authentication or identification as a 

condition precedent to the admissibility of evidence is satisfied by evidence 

sufficient to support a finding that the matter in question is what its 

proponent claims. Pa.R.E. 901(a). 

With regard to “the admissibility of electronic communication, such 

messages are to be evaluated on a case-by-case basis as any other 

document to determine whether or not there has been an adequate 
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foundational showing of their relevance and authenticity.” In the Interest 

of F.P., 878 A.2d 91, 96 (Pa. Super. 2005). “[A]uthentication 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.” 

Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) (Koch).

In Commonwealth v. Koch, 106 A.3d 705 (Pa. 2014) (Koch II), an 

equally divided Supreme Court11 affirmed our Court’s grant of a new trial, 

wherein we held that: (1) the defendant’s text messages had not been 

authenticated; (2) the messages were inadmissible hearsay that were not 

offered for any reason other than to show the truth of the matter asserted 

as to the content of the messages; and (3) admission of the unauthenticated 

hearsay messages was not harmless error because the prejudicial effect of 

the evidence was “so pervasive in tending to show that [defendant] took an 

active role in an illicit [drug selling] enterprise that it [could not] be deemed 

harmless.” Koch, 39 A.3d at 1005-07.

While the defendant in Koch admitted to owning the cell phone, and 

the content of the messages on the phone indicated drug sale activity, it was 

also conceded at trial that someone other than the defendant likely authored 

____________________________________________

11 When a judgment of sentence is affirmed by an equally divided court, as 

in the Koch case, no precedent is established and the holding is not binding 

on other cases. Commonwealth v. James, 427 A.2d 148 (Pa. 1981).
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at least some of the text messages. Even so, the mere assertion of 

ownership of the phone did not establish that defendant was an active 

correspondent in the particular drug sales text messages. Id. at 1003. 

Moreover, confirmation that the number or address belongs to a particular 

person also did not satisfy the authentication requirement under the Rules of 

Evidence. Id. at 1005. Ultimately, the Court found that the Commonwealth 

failed to establish, either by direct or circumstantial evidence, whether 

defendant was the author of the texts. Id. 

However, the Koch Court, referencing Rule 901, explained the ways in 

which text messages could be authenticated by using: (1) first-hand 

corroborating testimony from either the author or the sender; and/or (2) 

circumstantial evidence, which includes distinctive characteristics like 

information specifying the author-sender, reference to or correspondence 

with relevant events preceding or following the communication in question; 

or (3) any other facts or aspects of the communication that signify it to be 

what its proponent claims it to be. Id. at 1002. Ultimately, the Court found 

that the trial court abused its discretion in admitting the text messages 

where the cell phone’s physical proximity to the defendant at the time of her 

arrest had no probative value with regard to whether she authored the 

messages. Id. at 1005. Finally, because there was no evidence 

substantiating that defendant had written the drug-related text messages, it 

was improper to find that the identity of the sender had been corroborated. 

Id.
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As the Court in Koch acknowledged, the authentication inquiry will, by 

necessity, “be evaluated on a case-by-case basis as any other document to 

determine whether there has been an adequate foundation showing of its 

relevance and authenticity.” Id. at 1003 (citation omitted). Instantly, 

Mosley denied that he owned the two cell phones that were confiscated from 

his person incident to his arrest. Moreover, there was no first-hand 

corroborating testimony from a witness regarding the authenticity of the text 

messages. Pa.R.E. 901(b)(1). In addition, there were two email addresses 

attached to the cell phones, which could indicate that someone else had 

access to or owned the phones. Finally, while several of the text messages 

could be interpreted as indicative of drug dealing, none of the specific drugrelated communications identified Mosley. In fact, Donte (Mosley’s first 

name) is only referenced in a few text messages dated months prior to the 

instant investigation. None of the text messages sent from the Samsung 

phone concerned drugs and there were no drug-related text messages sent 

from the phones around the time of Mosley’s arrest. 

Unlike the defendant in Koch, who had been charged as both an 

accomplice and a conspirator, here Mosley was charged with purely 

possessory offenses, including with the intent to deliver. Therefore, the 

authorship of the texts is more critical to an authentication analysis under 

the facts of this specific case. The fact that that the trial court failed to give 

an authentication instruction to the jury further compounds the effect that 

the issue of authorship has on the case. Here, the court generally instructed 
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the jury with regard to circumstantial evidence and the weight to be 

accorded it in terms of evaluating whether Mosley was the transmitter or 

receiver of the messages.12 However, the court did not instruct the jury that 

in order to prove authentication, circumstantial evidence which tends to 

corroborate the identity of the sender is required. 

Instantly, the trial court found that the Commonwealth authenticated 

the messages based on the following facts: (1) similar contacts in both 

phones; (2) Donte Mosley’s mother (“Momma Dooks”) as a contact on both 

phones; (3) mother of Mosley’s child texting similar messages on both 

phones; (4) prior incoming texts referencing “Donte”. N.T. Jury Trial, 

4/18/13, at 93. While these facts may support authentication, the court 

does not take into account the fact that the texts referencing “Donte” 

occurred more than one week prior to the current incident and that the texts 

from Momma Dooks were sent in April, June and July of 2012 – weeks to 

____________________________________________

12 Interestingly, the trial court stated:

In light of the testimony that’s been presented[,] I’m going to 

say the authentication of electronic communications-like 

documents, requires more than mere confirmation that the 

number address belonged to a particular person. Circumstantial 

evidence which tends to corroborate the identity of the sender is 

required. I’m going to give that instruction. 

N.T. Jury Trial, 9/17/13, at 101. Despite this statement, the court never 

gave an instruction specifically referencing authentication of the messages; 

defense counsel objected to this omission. Id. at 112.
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months before Mosley’s arrest. Finally, and most relevant to the issue of 

authorship, the court does not discuss the fact that there is no reference to 

Donte in any of the drug-related text messages.

Like Koch, this is a close case regarding authorship and 

authentication. Here, there is no evidence, direct or circumstantial, tending 

to substantiate that Mosley was the author of the drug-related text 

messages. Moreover, no testimony was presented from persons who sent or 

received the text messages. While there may be contextual clues with 

regard to some texts, (i.e., one of the text messages is from Mosley’s 

mother on July 26, 2012, just 18 days before his arrest, wishing Mosley a 

happy birthday), there are no such clues in the drug-related texts messages 

themselves tending to reveal the identity of the sender. Compare Koch, 

supra (“reference to or correspondence with relevant events that precede or 

follow the communication in question” may be a distinctive characteristic 

under Rule 901(b)(4)). Additionally, the fact that a text message 

corroborates the “crazy horse” stamp on one of the baggies of drugs 

discarded by Mosley just prior to his arrest is merely circumstantial evidence 

of authentication. Nothing in that specific message, however, indicates the 

identity of the author or recipient of the message. 

As the United States Supreme Court noted in Riley, supra, more 

substantial privacy interests are at stake when digital data is in play: 

Cell phones differ in both a quantitative sense from other objects 

that might be kept on an arrestee’s person. The term “cell 

phone” is itself misleading shorthand; many of these devices are 
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in fact minicomputers that also happen to have the capacity to 

be used as a telephone. They could just as easily be called 

cameras, video players, rolodexes, calendars, tape recorders, 

libraries, diaries, albums, televisions, maps, or newspapers. 

Id. at 2489. Moreover, due to their immense capacity to store data, cell 

phones “have several interrelated consequences for privacy[,]” including the 

different types of data (i.e., addresses, notes, bank statements, 

prescriptions, videos) that can be stored on them, the sheer amount of 

information with regard to each type of stored data, and the fact that the 

data stored on the cell phone can date back months or even years to the 

original purchase of the phone (or even beyond that date with the ability to 

transfer data from an older phone to a newer one). Id. Finally, due to the 

fact that most people in the general population carry a cell phone on their 

person throughout the day, “more than 90% of American adults who own a 

cell phone keep on their person a digital record of nearly every aspect of 

their lives – from the mundane to the intimate.” Id. at 2490 (citation 

omitted).

Bearing in mind the unique nature of a cell phone and its 

pervasiveness in everyday society, we believe that in order to use content 

from a cell phone as testimonial evidence in a criminal prosecution, the 

Commonwealth must clearly prove its authentication. Because there was no 

evidence, direct or circumstantial, clearly proving that Mosley was the author 

of the drug-related text messages, or any corroborating witness testimony 

regarding authenticity of the messages, we find that the trial court erred in 
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determining that the drug-related texts were authenticated properly in the 

instant case.13 

Hearsay

Even concluding that the text messages were not properly 

authenticated, we must still address Mosley’s claims that the text messages 

were inadmissible hearsay. Hearsay is an out-of-court statement offered for 

the truth of the matter asserted and is inadmissible unless it falls within an 

exception to the hearsay rule. See Pa.R.E. 801(c); Pa.R.E. 802; 

Commonwealth v. May, 898 A.2d 559, 565 (Pa. 2006). When this type of 

evidence is in question, the distinction can be subtle between a statement 

that, if admitted, would serve as affirmative and substantive evidence of the

accused’s guilt, and non-hearsay that may be admitted to establish some 

other aspect of a case, such as motive or a witness’s relevant course of 

conduct. 

Here, the Commonwealth argues that the texts are admissible under 

the hearsay exception set forth in Pa.R.E. 803(25), which states, “[t]he 

statement is offered against an opposing party and: (A) was made by the 

party in an individual or representative capacity; [or] (B) is one the party 

manifested that it adopted or believed to be true.” Specifically, the 

Commonwealth claims that Mosley’s responses to drug requests that were in 

____________________________________________

13 We leave for another day the quantum and quality of evidence necessary 

to “clearly” prove authentication of text messages.
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the form of questions falls within the section 803(25) hearsay exception 

because they were admitted to provide context for the outgoing text 

messages (statements) he sent.

With respect to the issue of inadmissible hearsay in Koch, a detective, 

who was a Commonwealth expert witness, testified that in his opinion the 

text messages found on the defendant’s cell phone, in conjunction with other 

factors (bongs, pipes, large amounts of cash, drug scales) were consistent 

with drug sales that implicated the defendant, even though the detective 

conceded that the author of the drug-related text messages could not be 

definitively ascertained, that several texts were incomplete and that some 

messages referenced the defendant in the third person. Koch, 39 A.3d at 

1002-1003. In addition, the prosecutor acknowledged that the purpose of 

the text evidence was to show that defendant’s phone was used in drug 

transactions, and, therefore, that it makes it more probable than not that 

when the defendant possessed the drugs she did so with the intent to deliver 

it as opposed to for personal use. Id. at 1005-06. As a result, the Court 

concluded that the only relevance of the evidence was to prove the truth of 

the matter asserted – that there were drug-related text messages on 

defendant’s cell phone and, therefore, that admission of the messages was 

an abuse of discretion and not harmless error. Id. at 1006-07.

Similarly, here Sgt. Rutherford testified that there were several text 

messages on the cell phones that, in his professional opinion, appeared to 

involve drug trafficking or setting up deals. N.T. Jury Trial, 9/17/13, at 55. 
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He also testified that drug dealers often carry two phones, one personal and 

one for business, and that cell phones are the main mode of communication 

in the drug dealing trade. Id. at 55-56, 41. However, Sgt. Rutherford 

testified that there was no identifying information regarding Mosley in any of 

the drug-related texts on either phone. Id. at 59-62, 71. On direct 

examination, Sgt. Rutherford testified that narcotics sales are frequently set 

up with text messaging, id. at 26, and that because there were similar 

numbers on both cell phones and some of the text messages included 

Mosely’s name, such facts were consistent with a pattern of drug sales.

On direct examination by the prosecution, Sgt. Rutherford testified 

that the phones contained text messages from various people indicating 

“there was a sale of narcotics, there was a request for different types of 

narcotics, drugs, meet, locations, places to meet, things like that.” Id. at 

29. Sergeant Rutherford consistently testified to common street terms used 

in illegal drug sales, the manner in which dealers often stamp their bags of 

drugs with symbols and wording, and that text messages are often sent to a 

phone in an attempt to buy drugs. Ultimately, the prosecutor asked Sgt. 

Rutherford if, based on his expertise, he had formed an opinion that the 

drugs and cell phones confiscated from Mosley were associated with the 

distribution of drugs, or just mere possession for personal use, to which he 

replied:

Yes. A combination. I take into account everything, the totality 

of everything. You know, a combination of the packaging, the 

text messages, this is consistent with someone who is involved 
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with the sale of narcotics. And in this case, different types of 

narcotics.

* * *

A lot of times dealers – I mean, especially with the heroin 

because the weights can really affect severe jail terms. They 

don’t like to carry a whole lot. I mean, they’d rather have less. 

A lot of times you’ll see – in some of the text messages he says 

what do you need. What do you need because sometimes –

depending on where they set up their operation, they may only 

come out with what you ask for.

Id. at 46, 52. 

Taking into account the content of the texts in this case, as well as the 

erroneously admitted evidence of Officer Doyle’s statement regarding drug 

activity, we conclude that under Koch the admission of the messages was 

an abuse of discretion where the texts were admitted to prove the truth of 

the matter asserted – that Mosley possessed the drugs with the intent to 

deliver. However, if we discount the improperly admitted text messages and 

Officer Doyle’s statement, we conclude that there is substantially similar 

evidence showing that Mosley possessed the drugs with the intent to deliver. 

See infra at 23-24. Therefore, we find that the improper admission of the 

statement and text messages was harmless error, did not unduly prejudice 

Mosley, and still resulted in a fair trial. See Watson, supra; West, supra; 

Story, supra.

Sufficiency & Weight of the Evidence

Mosley contends that there was insufficient evidence to prove that he 

committed the crimes of possession and possession with intent to deliver. 
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Specifically, he argues that the passenger in the Cadillac was just as likely to 

have possessed the drugs as he was and that the Commonwealth failed to 

show that he exercised conscious dominion over the drugs.

In reviewing a challenge to the sufficiency of the evidence, we must 

determine whether, viewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, together with all reasonable inferences 

therefrom, the trier of fact could have found that each and every element of 

the crimes charged was established beyond a reasonable doubt. 

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

First, Mosley was driving the car from which two clear plastic bags 

(each containing multiple baggies within) were thrown out of the driver’s 

side window. Second, no drugs, paraphernalia or other incriminating drug 

evidence was found on the passenger in the Cadillac. Third, expert 

testimony by Sgt. Rutherford confirmed that the packaging, weight and type 

of drugs, in addition to the $117.00 and cell phones found on Mosley’s 

person at the time of his arrest, are all indicative of possessing drugs with 

the intent to deliver. Accordingly, we find that there was sufficient evidence 

to support Mosley’s conviction for possession and possession with the intent 

to deliver. Cf. Koch, supra at 1007 (Commonwealth failed to present 

overwhelming properly admitted evidence regarding defendant’s 

involvement in drug transactions; prosecution’s case consisted of text 

message evidence and that drugs were found in defendant’s shared 
J-A33005-14

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bedroom, in common areas of home, and no drugs or money found on 

defendant’s person).

Next, Mosley contends that the verdict is against the weight of the 

evidence, where the actual possessor of the drugs thrown from the car was 

not and could not be determined. We disagree.

When a defendant challenges the weight of the evidence, relief in the 

form of a new trial may be granted only where the verdict shocks one’s 

sense of justice. This Court reviews the trial court’s exercise of discretion in 

ruling on the weight claim, not the underlying question of whether the 

verdict was against the weight of the evidence. Commonwealth v. 

Champney, 832 A.2d 403, 408 (Pa. 2003); Commonwealth v. Rabold, 

920 A.2d 857, 860-61 (Pa. Super. 2007), aff’d 951 A.2d 329 (Pa. 2008). In 

reviewing the trial court's decision concerning the weight of the evidence, an 

appellate court is not passing on the credibility of witnesses. 

Commonwealth v. Woody, 679 A.2d 817, 819-20 (Pa. Super. 1996). This 

is a function that is solely within the province of the finder of fact which is 

free to believe all, part of none of the evidence. Id. 

Here, the jury heard the evidence that Mosely was the driver of the 

black Cadillac, that two bags later identified as containing drugs were 

discarded from the driver’s side window while the vehicle was being pursued 

by the police, and that $117 in U.S. currency, and two cell phones were 

found on his person upon being stopped and searched. A Commonwealth 

expert testified that this evidence was indicative of drug possession and 
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possession with the intent to deliver. Accordingly, we find that given the 

evidence presented to prove that Mosley committed these possessory 

offenses, the verdict does not shock one’s sense of justice; the court’s 

decision to deny the challenge to the weight of the evidence is not contrary 

to law, manifestly unreasonable or the result of bias, prejudice, partiality or 

ill-will. Champney, supra.

Reopen Suppression Hearing

Mosley next contends that the trial court improperly denied his 

request, at the end of the suppression hearing, to reopen the record to 

permit him to introduce testimony regarding the operation of and access to 

the cell phones. Specifically, Mosley asserted that because defense counsel 

was surprised at the hearing by Officer McDevitt’s testimony regarding the 

operation of the cell phone, counsel needed proof that in order to view the 

texts, some affirmative action by the officer (such as swiping or unlocking 

with a password) needed to occur. Having found that any improper viewing 

of the text messages, by Officer McDevitt, on the cell phones confiscated 

incident to Mosley’s arrest was harmless error in light of the subsequently 

and independently secured search warrant, we find this issue moot on 

appeal.

Alleyne Sentencing Issue

Finally, Mosley contends that the trial court’s application of the 

mandatory minimum to his sentence is illegal because the United States 

Supreme Court’s decision, Alleyne v. United States, 133 S.Ct. 2151 
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(2013), has rendered the sentencing scheme under section 7508 

constitutionally suspect. Additionally, he claims that even though the jury 

used a special verdict to allow the factfinder to determine the weight of the 

drugs possessed, by a reasonable doubt, the verdict still violates section 

7508 and its plain legislative intent. We agree.

First, we must address the Commonwealth’s contention that Mosley 

has waived this issue on appeal due to his failure to include an Alleynebased sentence challenge at sentencing, in his post-sentence motion, or in 

his Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. 

In Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en 

banc),14 our Court observed that “where [a]pplication of a mandatory 

minimum sentence gives rise to illegal sentence concerns, even where the 

sentence is within the statutory limits[,] [sic] [l]egality of sentence 

questions are not waivable” and may be raised sua sponte by this Court.15 

____________________________________________

14 In Watley, the defendant did not even raise his Alleyne argument on 

appeal. Rather, this Court raised the issue sua sponte.

15 We are aware that our Supreme Court has accepted allowance of appeal 

on the issue of whether Alleyne relates to the legality of sentence, stating 

as the issue follows:

Whether a challenge to a sentence pursuant to Alleyne v. 

United States, 133 S.Ct. 2151 (2013), implicates the legality of 

the sentence and is therefore non-waivable.

Commonwealth v. Johnson, 93 A.3d 806 (Pa. 2014). However, until the 

Supreme Court overrules the non-waivability language found in Watley, we 

are bound by that case and its progeny. 

(Footnote Continued Next Page)
J-A33005-14

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Because Mosley’s claim falls within this narrow ambit of cases and, 

therefore, is not subject to traditional issue preservation, we will address its 

merits.

In Alleyne, supra, a case concerning the application of a federal 

mandatory minimum statute, the Supreme Court held that any fact that 

triggers an increase in the mandatory minimum sentence for a crime is 

necessarily an element of the offense. Id. at 2163-64. The Supreme Court 

reasoned that "the core crime and the fact triggering the mandatory 

minimum sentence together constitute a new, aggravated crime" and 

consequently, the Sixth Amendment requires that every element of the 

crime, including any fact that triggers the mandatory minimum, must be 

alleged in the charging document, submitted to a jury, and found beyond a 

reasonable doubt. Id. at 2160-64.

In Commonwealth v. Munday, 78 A.3d 661 (Pa. Super. 2013), our 

Court discussed the application of Alleyne to this Commonwealth’s 

mandatory minimum statutes: 

This term, in Alleyne, the United States Supreme Court 

expressly overruled Harris, holding that any fact that increases 

the mandatory minimum sentence for a crime "is 'an element' 

that must be submitted to the jury and found beyond a 

reasonable doubt." Alleyne, 133 S.Ct. at 2155, 2163. The 

Alleyne majority reasoned that "[w]hile Harris limited Apprendi 

to facts increasing the statutory maximum, the principle applied 

in Apprendi applies with equal force to facts increasing the 

(Footnote Continued) _______________________
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mandatory minimum." [Id.] at 2160. This is because "[i]t is 

impossible to dissociate the floor of a sentencing range from the 

penalty affixed to the crime[,]" and "it is impossible to dispute 

that facts increasing the legally prescribed floor aggravate the 

punishment." Id. at 2161. Thus, "[t]his reality demonstrates 

that the core crime and the fact triggering the mandatory 

minimum sentence together constitute a new, aggravated crime, 

each element of which must be submitted to the jury." Id.

Id. at 665. In Munday, the Court held that even where a statute 

specifically stated that its “provisions . . . shall not be an element of the

crime,”16 the sentencing factor [or factual predicate] at issue still had to be 

determined by the factfinder, beyond a reasonable doubt. Id. at 666. Thus, 

the Court found that the defendant’s sentence, which included the 

mandatory minimum sentence under section 9712.1 (sentences for certain 

drug offenses committed with firearms), violated the Due Process Clause of 

the Fourteenth Amendment and the jury trial guarantee of the Sixth 

Amendment. As a result, the Court vacated the defendant’s judgment of 

sentence and remanded for resentencing. Id. at 667. 

Instantly, Mosley was sentenced pursuant to the mandatory minimum 

statute, section 7508 of the Sentencing Code, which states, in pertinent 

part:

____________________________________________

16 We note that section 7508 contains identical language in its “proof at 

sentencing” subsection as that found in other mandatory minimum statutes. 

See also 18 Pa.C.S. § 6317(b) & 42 Pa.C.S. § 9712.1(c) (identical proof of 

sentencing provision language).
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(a) General rule. --Notwithstanding any other provisions of 

this or any other act to the contrary, the following 

provisions shall apply:

(3) A person who is convicted of violating section 

13(a)(14), (30) or (37) of The Controlled Substance, Drug, 

Device and Cosmetic Act where the controlled substance is 

coca leaves or is any salt, compound, derivative or 

preparation of coca leaves or is any salt, compound, 

derivative or preparation which is chemically equivalent or 

identical with any of these substances or is any mixture 

containing any of these substances except decocainized 

coca leaves or extracts of coca leaves which (extracts) do 

not contain cocaine or ecgonine shall, upon conviction, be 

sentenced to a mandatory minimum term of imprisonment 

and a fine as set forth in this subsection:

(ii) when the aggregate weight of the compound 

or mixture containing the substance involved is 

at least ten grams and less than 100 grams; 

three years in prison and a fine of $ 15,000 or such larger 

amount as is sufficient to exhaust the assets utilized in 

and the proceeds from the illegal activity; however, if at 

the time of sentencing the defendant has been 

convicted of another drug trafficking offense: five years 

in prison and $ 30,000 or such larger amount as is 

sufficient to exhaust the assets utilized in and the 

proceeds from the illegal activity[.]

(b) Proof of sentencing. --Provisions of this section shall not be 

an element of the crime. Notice of the applicability of this section 

to the defendant shall not be required prior to conviction, but 

reasonable notice of the Commonwealth's intention to proceed 

under this section shall be provided after conviction and before 

sentencing. The applicability of this section shall be determined 

at sentencing. The court shall consider evidence presented at 

trial, shall afford the Commonwealth and the defendant an 

opportunity to present necessary additional evidence and shall 

determine, by a preponderance of the evidence, if this section is 

applicable.

18 Pa.C.S. § 7508(a)(3)(ii) (emphasis added), (b) (emphasis added). 

Therefore the factual predicate of section 7508 is that the aggregate weight 
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of the prohibited substance possessed by the defendant be at least 10 and 

no more than 100 grams. 

In Commonwealth v. Thompson, 93 A.3d 478 (Pa. Super. 2014), 

the trial court applied the mandatory minimum provisions of section 7508 to 

the defendant’s sentence. On appeal, our Court held that because the 

weight of the drugs possessed by the defendant had not been determined by 

the fact-finder, nor proven beyond a reasonable doubt, the defendant’s 

sentence was illegal and required vacation. Specifically, the Court noted 

that section 7508(a) cannot be constitutionally applied in light of Alleyne, or 

it would result in an illegal sentence. Similarly, in Commonwealth v. 

Fennell, 105 A.3d 13 (Pa. Super. 2014), where the defendant stipulated to 

the weight of the drugs for purposes of applying the mandatory minimum to 

his sentence, our Court also concluded that section 7508(b), which permits 

the trial court to find the necessary elements by a preponderance of the 

evidence, was not severable from the rest of the statute. The Court 

concluded that stipulating to the drug’s weight, in effect, allows a trial court 

to impose a mandatory minimum outside the statutory framework, where 

such procedures are solely within the province of the factfinder. Id. at *20. 

As a result the Court deemed section 7508 unconstitutional and that any 

mandatory minimum imposed under this statue is illegal. Id. at *15-18. 
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Although the principles of Alleyne and it progeny apply to Mosley’s 

section 7508 mandatory minimum sentence, the sentencing procedure in the 

instant case differs from that employed in Thompson and Fennell.

17

 As a 

result, the Commonwealth contends that Mosley’s sentence should not be 

deemed illegal. We disagree.

Here, the jury was presented with a special verdict form that included 

the specific issue:

If you find the defendant guilty of Count 4(c): possession with 

intent to deliver, do you find the defendant guilty of possession 

with intent to deliver greater than 10 grams of cocaine?

Jury Verdict Form, 9/17/13 (emphasis added). Therefore, the issue 

regarding the weight of the drugs possessed by Mosley appears to have 

been determined, beyond a reasonable doubt, by the jury as factfinder. 

However, our Court has held that trial courts lack the authority to employ 

special verdict slips in cases involving mandatory minimum sentences that 

implicate Alleyne. See Commonwealth v. Valentine, 101 A.3d 801 (Pa. 

Super. 2014); Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) 

(en banc).

____________________________________________

17 See also Commonwealth v. Vargas, 2014 PA Super. 289 (filed 

December 31, 2014) (relying on Fennell which held section 7508 

unconstitutional, as applied in light of Alleyne, and that even though 

defendant stipulated to weight of drugs, sentence applying mandatory 

minimum was illegal).
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In Valentine, the defendant had been convicted by a jury of robbery 

and sentenced to 5-10 years’ imprisonment, which included application of 

two mandatory minimum sentencing provisions, 42 Pa.C.S. §§ 9712 (visible 

possession of firearm) and 9713 (offense committed in/near public 

transportation). Valentine, 101 A.3d at 804-805. Similar to the instant 

case, the trial court presented the jury with a special verdict slip, asking it to 

determine whether the factual predicates had been proven beyond a 

reasonable doubt. Id. On appeal, the defendant, like Mosley, raised the 

issue whether the mandatory minimum sentence imposed was illegal since 

the provisions of the sentencing statutes were rendered unconstitutional in 

light of Alleyne. In coming to its decision, the Valentine Court found 

Newman, supra, instructive, which also reviewed the constitutionality of 

section 9712 and determined that the factual predicate of that statute 

(visible possession of firearm) must be presented to the factfinder and 

determined beyond a reasonable doubt. Notably, the Newman Court 

declined to accept the Commonwealth’s proposed remedy to have the case 

remanded for a sentencing jury to determine beyond a reasonable doubt 

whether the Commonwealth had proven the factual predicates of section 

9712. 

In reaching its holding, the Newman Court stated:

The Commonwealth's suggestion that we remand for a 

sentencing jury would require this court to manufacture whole 

cloth a replacement enforcement mechanism for Section 9712.1; 

in other words, the Commonwealth is asking us to legislate. We 

recognize that in the prosecution of capital cases in 
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Pennsylvania, there is a similar, bifurcated process where the 

jury first determines guilt in the trial proceeding (the guilt 

phase) and then weighs aggravating and mitigating factors in 

the sentencing proceeding (the penalty phase). However, this 

mechanism was created by the General Assembly and is 

enshrined in our statutes at 42 Pa.C.S.[] § 9711. We find that it 

is manifestly the province of the General Assembly to determine 

what new procedures must be created in order to impose 

mandatory minimum sentences in Pennsylvania following 

Alleyne. We cannot do so.

Newman, 99 A.3d at 102. Ultimately, the Valentine Court applied the 

holding of Newman to conclude that “the trial court performed an 

impermissible legislative function by creating a new procedure in an effort to 

impose the mandatory minimum sentences in compliance with Alleyne.” 

Valentine, 101 A.3d at 811. Because Newman makes it clear that it is the 

General Assembly’s function to determine what new procedures must be 

created to impose mandatory minimum sentences in this Commonwealth, 

the trial court exceeded its authority by asking the jury to determine the 

factual predicates of sections 9712(c) and 9713(c). Id. at 812. 

Similarly, here the trial court exceeded its authority by permitting the 

jury, via a special verdict slip, to determine beyond a reasonable doubt the 

factual predicate of section 7508 – whether Mosley possessed cocaine that 

weighed greater than 10 grams. Even though the jury responded “yes” to 

the inquiry, the trial court performed an impermissible legislative function by 

creating a new procedure in an effort to impose the mandatory minimum 

sentence in compliance with Alleyne. Accordingly, we must vacate the 

defendant’s judgment of sentence and remand for resentencing without the 
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mandatory minimum. Valentine, supra. See also Commonwealth v. 

Ferguson, 2015 PA Super 1 (Pa. Super. 2015) (defendant’s sentence 

vacated and remanded for resentencing without consideration of mandatory 

minimum sentences where trial court lacked authority to have jury 

determine, via verdict slip, factual predicate under section 9712).

Convictions affirmed. Judgment of sentence vacated. Case remanded. 

Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/20/2015