J-S33015-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSHUA LEE DIEGDIO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 866 WDA 2022

Appeal from the Judgment of Sentence Entered March 18, 2022

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

No(s): CP-04-CR-0001795-2020

BEFORE: BENDER, P.J.E., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED: December 29, 2023

Appellant, Joshua Lee Diegdio, appeals from the judgment of sentence 

of an aggregate term of life imprisonment, without the possibility of parole, 

imposed after a jury convicted him of first-degree murder, attempted murder, 

aggravated assault, burglary, robbery, and conspiracy to commit robbery. On 

appeal, Appellant challenges the sufficiency of the evidence to sustain his 

convictions, the court’s denial of his pretrial motion to suppress evidence, and 

the court’s admission of certain evidence. After careful review, we affirm.

The trial court set forth a detailed summary of the facts and procedural 

history of Appellant’s case, which we adopt herein. See Trial Court Opinion 

(TCO), 11/7/22, at 1-24. Briefly, Appellant was convicted of the above-stated 

offenses based on evidence that he shot Latrell Parker and Alessandra Briggs 

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-S33015-23

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during a home invasion in Beaver Falls, Pennsylvania, on September 25, 2020. 

While Parker unfortunately died from his wounds, Briggs survived and was 

able to testify against Appellant at his trial, identifying him as one of the two 

men who forcibly entered her home and shot her and Parker. 

On March 2, 2022, the jury convicted Appellant of the above-stated 

crimes. On March 18, 2022, he proceeded to sentencing. Although the 

Commonwealth sought the death penalty in this case, the jury could not reach 

a verdict on that penalty and, therefore, the court imposed an aggregate term 

of life imprisonment, without the possibility of parole. 

On March 28, 2022, Appellant filed a timely, post-sentence motion. On 

July 26, 2022 (120 days later), Appellant filed a notice of appeal. However, 

at no point between the filing of his post-sentence motion and the filing of his

appeal did it appear that an order was entered formally denying the postsentence motion. See Pa.R.Crim.P. 720(B)(3)(a) (stating that, when

presented with a post-sentence motion, the trial court “shall decide the postsentence motion ... within 120 days of the filing of the motion. If the judge

fails to decide the motion within 120 days ... the motion shall be deemed

denied by operation of law.”); Pa.R.Crim.P. 720(B)(3)(c) (directing that, when 

the court fails to decide a post-sentence motion within 120 days, “the clerk of 

courts shall forthwith enter an order on behalf of the court ... that the postsentence motion is deemed denied”). An appeal filed after a timely, postsentence motion is premature if the trial court has not yet entered an order 

disposing of the motion, or the clerk of courts has not entered an order 
J-S33015-23

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denying the motion by operation of law, as without any such order the 

judgment of sentence is not final. Commonwealth v. Claffey, 80 A.3d 780, 

783 (Pa. Super. 2013) (finding that, “when post-sentence motions are filed, 

the judgment of sentence does not become final until those motions are

decided”). Such an appeal, therefore, should be quashed as not from a final

order. Id. Accordingly, this Court entered a September 1, 2022 rule to show 

cause order directing Appellant to show cause why the instant appeal should

not be quashed as premature. 

On September 13, 2022, Appellant filed a response stating that a 

praecipe had been filed with the trial court pursuant to Pa.R.A.P. 301(d) 

(mandating that the clerk of the lower court shall prepare, sign, and enter 

appropriate orders upon praecipe of any party). The trial court’s docket has 

now been updated, showing entries for a September 13, 2022 “Praecipe to 

Enter Order by Operation of Law,” and a September 15, 2022 “Order Denying 

Post-Sentence Motion by Operation of Law.”1 Because there is now a final 

order denying Appellant’s post-sentence motion, we find that the instant 

appeal was timely filed from that final order. See Pa.R.A.P. 905(a)(5) (stating 

that an initially premature notice of appeal shall be treated as filed on the date 

the appealable order is entered).

____________________________________________

1 We note that the court’s September 15, 2022 order shows that it improperly 

attempted to back date the denial of Appellant’s post-sentence motion to July 

25, 2022.
J-S33015-23

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Appellant thereafter complied with the trial court’s order to file a 

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

the trial court filed a responsive Rule 1925(a) opinion on November 7, 2022. 

Herein, Appellant states four issues for our review:

1. The trial court erred by not granting Appellant’s motion for 

judgement [sic] of acquittal, at the conclusion of the 

Commonwealth’s case, on the basis that the Commonwealth failed 

to prove that ... Appellant was the actual person that committed 

the following charges: first[-]degree murder, criminal attempt -

murder of the first degree, aggravated assault, robbery – inflict

serious bodily injury, burglary – overnight accommodations[,] ... 

and conspiracy to commit robbery - inflict serious bodily injury....

2. The trial court erred by not granting Appellant’s motion for 

judgement [sic] of acquittal, at the conclusion of the 

Commonwealth’s case, on the basis that there was insufficient 

evidence to support all of the charges[ of:] first[-]degree murder, 

criminal attempt - murder of the first degree, aggravated assault, 

robbery – inflict serious bodily injury, burglary – overnight 

accommodations[,] ... and conspiracy to commit robbery - inflict 

serious bodily injury.

3. The trial court erred and/or abused its discretion when it denied 

Appellant’s omnibus pre-trial motion, including the motion to 

suppress the photo array of ... Appellant and the motion to 

suppress any evidence seized from ... Appellant’s ZTE cellular 

phone.

4. The trial court erred and/or abused its discretion when it 

determined Appellant’s statement about being treated like El 

Chapo was an admission and/or statement against interest and 

permitted the testimony of Deputy Sheriff[] Doug Hanna. 

Appellant’s Brief at 12-13 (unnecessary capitalization and footnote omitted).2

____________________________________________

2 Appellant indicates that his first two issues will be analyzed together and are 

supported by the same facts and law. See id. at 13 n.1.
J-S33015-23

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In assessing Appellant’s claims, we have reviewed the briefs of the 

parties, the certified record, and the applicable law. We have also considered 

the thorough and well-reasoned opinion of the Honorable Mitchell P. Shahen

of the Court of Common Pleas of Beaver County. We conclude that Judge 

Shahen’s opinion correctly and cogently disposes of Appellant’s issues and 

demonstrates that no relief is due.3 Therefore, we adopt Judge Shahen’s 

decision as our own, and affirm Appellant’s judgment of sentence for the 

reasons set forth therein. 

Judgment of sentence affirmed.

____________________________________________

3 We note that in Appellant’s third issue, he contends that the photographic

array shown to Brittany Lavette was unduly suggestive because he is Latino, 

and “[t]here were no other Latino men in the line-up.” Appellant’s Brief at 56. 

Judge Shahen does not address this argument in his opinion, as it was not 

raised in Appellant’s omnibus pretrial motion to suppress. Therein, Appellant 

focused only on the fact that he was one of the only individuals in the array 

with visible tattoos on his neck. See Omnibus Pretrial Motion, 8/25/21, at 11 

¶ 38 (arguing that “[u]sing a photograph of [Appellant] as the only male with 

numerous tattoos is unduly suggestive and taints the identification”); id. at 

11 ¶ 39 (stating that, “[a]t issue here is that while [Appellant’s] photograph 

is similar in skin tone and hair style and color with the other photographs it is 

the only one with highly visible tattoos[,] ... which uniquely and specifically 

draw attention to [Appellant]”) (emphasis omitted); id. at 12 ¶ 41 (“Fatal to 

the Commonwealth is that [Appellant’s] photograph is unduly suggestive as it 

portrays a characteristic unshared by other members depicted in the 

photographic array. This characteristic, namely the visible chest and neck 

tattoos, immediately draws attention to [Appellant] in a manner that is likely 

to induce a misidentification as it causes his photograph to stand out more 

than the others.”). Moreover, Appellant does not point to where in the record 

of the suppression hearing that he raised the claim about his being the only 

Latino man in the lineup. Thus, Appellant has waived this argument on appeal. 

See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and 

cannot be raised for the first time on appeal.”).
J-S33015-23

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 12/29/2023
Circulated 12/14/2023 10:21 AM

IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY, 

PENNSYLVANIA 

CRIMINAL DIVISION 

COMMONWEALTH OF 

PENNSYLVANIA 

vs. 

JOSHUA LEE DIEGDIO 

Shaben, Mitchell P. 

CP-04-CR-0 1795-2020 

866 WDA2022 

NOVEMBER 7, 2022 

OPINION OF LOWER COURT PURSUANT TO PA.R.A.P. RULE 1925a) 

Joshua Lee Diegdio ("Appellant") appeals from the March 18, 2022, 

judgment of sentence entered by the Court of Common Pleas of Beaver County 

following his convictions by a jury on March 2, 2022, of Murder of the First 

Degree, 

1 Criminal Attempt - Murder of the First Degree,2 Aggravated Assault,3 

Robbery - Inflict Serious Bodily Injury, Burglary - Overnight Accommodations; 

1 18 Pa. C.S. $ 2502(a) 

18 Pa. C.S. 8$ 901(a); 18 Pa. C.S. $ 2502(a) 

3 18 Pa. C.S. $ 2702 (a)(l) 

'18 Pa. C.S. § 3701(a)(l)(i) 

Page 1 of56 
Person Present, Bodily Injury Crime,' and Conspiracy - Robbery - Inflict Serious 

Bodily Injury. 

6 

On December I 0, 2020, the Commonwealth filed its notice of intention to 

seek the death penalty citing two aggravating factors in the event of a conviction of 

first degree murder pursuant to the Sentencing Code, 42 Pa. C.S. § 9711. 

Following the death penalty phase, the jury was unable to reach a verdict as 

to the penalty. On March 18, 2022, the court sentenced the Appellant to a term of 

life imprisonment on the first degree murder conviction. Sentences on the 

remaining charges were ordered to run concurrently or merged with corresponding 

offenses. 

The Appellant filed a timely post-sentence motion on March 28, 2022, and a 

supplemental post-sentence motion by permission on May 9, 2022. The relevant 

facts and procedural history follow below. 

FACTS AND PROCEDURAL HISTORY 

The charges against the Appellant stem from an incident occurring at the 

home of Latrell Parker and Alessandra Briggs, 1403 5 Ave, Beaver Falls, PA 

("Premises"), in the early morning hours of September 25, 2020. This incident 

involved the invasion of the home and shooting death of victim Latrell Parker 

("Parker"), and the shooting of victim Alessandra Briggs ("Ms. Briggs"). 

5 18 Pa. C.S. $ 3502(a)(1) 

618 Pa. C.S. $ 903(a)(1); 18 Pa. C.S. $ 3701(a)(1)( 

Page 2 of 56 
By Criminal Information dated December 2, 2020, the Appellant was 

charged as follows, one ( 1) Count of Murder of the First Degree (First Degree 

Felony);

7 one (1) Count of Murder of the Second Degree (First Degree Felony);

8 

one (1) Count Criminal Attempt-Murder of the First Degree;

9 one (1) Count 

Aggravated Assault;" one (1) Count Robbery Inflict Serious Bodily Injury;'' one 

(1) Count Burglary-Overnight Accommodations: Person Present, Bodily Injury 

Crime; and one (1) Count Conspiracy-Robbery-Inflict Serious Bodily lnjury.

12 

The Appellant filed an Omnibus Pre-Trial Motion on August 25, 2021, 

consisting of a (1) Motion to Suppress the Search Warrant for Appellant's 

Facebook Account, (2) Motion to Suppress the Search Warrant for Appellant's 

Cellular Telephone, and (3) Motion to Suppress the Identification of the Appellant 

stemming from a Photo Array. Appellant has appealed the suppression court 

rulings which denied the Motion to Suppress the Identification and the Motion to 

Suppress the Search Warrant for Appellant's Cellular Telephone. 

A hearing on the omnibus motion was held on November 15, 2021, at which 

time the Commonwealth presented testimony from Detective Justin Schlie and 

Detective Timothy Higby of the City of Beaver Falls Police Department, as well as 

testimony from Detective Roger Patrick Young of the Beaver County District 

7 18 Pa. C.S.A. §2502(a) 

8 18 Pa. C.S.A. §2502(b) 

9 18 Pa. C.S.A. $901(a) 

18 Pa. C.S.A. $2702(a)(1) 

18 Pa. C.S.A. $3502 

"?18 Pa. C.S.A. $903 

Page 3 of 56 
Attorney's Office. Detective Schlie testified to the required protocol for arranging 

photographic arrays, the software used, and the process he followed. 

On December 30, 2021, the Court issued an Order denying the Appellant's 

Omnibus Pre-Trial Motion. The relevant findings are summarized as follows: 

Motion to Suppress the Photo Array and Subsequent 

Identification by Brittany Lavette 

This court finds that the background of each photo is similar, each 

photo is a headshot, the facial features of all of the men are similar 

and all of the men depicted appear to be of a similar age. The men 

have similar facial characteristics, facial hair, and hairlines. There is a 

mild variation in the complexion of the individual shown in 

photograph five (5) and the photograph of the Appellant shows a 

tattoo on his neck while the only other man with an observable tattoo 

was the man in photograph two (2). The complete neckline of the men 

in the photographs one (1), five (5) and seven (7) are partially 

obstructed so that no neck tattoos are observable and the remaining 

men in the photographs have no neck tattoos. These variations did not 

make Appellant's photograph stand out more than others. 

In this case, in considering the totality of the circumstances, the court 

concludes that Brittany Lavette's out-of-court identification was not 

based upon a photo array so infected by suggestiveness as to give rise 

to a substantial likelihood of irreparable misidentification. The array 

was computer generated, the backgrounds were the same and the court 

finds that all of the men in the photo array exhibited similar facial 

characteristics. 

Motion to Suppress Items Seized through Search Warrant 

In this case, the court having previously decided that it will not disturb 

the finding of probable cause of the issuing authority to search the cell 

phone, the court, based on the recent authority of Green,' finds that 

the items requested on pages one (I) and six ( 6) of the search warrant 

Referencing, Commonwealth v. Green, 265 A.3d 541, 551 (Pa. 2021). 

Page 4 of 56 
for the cell phone are not in violation of the particularity requirement 

of Article 1 Section 9 of the Pennsylvania Constitution." 

Jury selection began on February 7, 2022, and the trial was conducted from 

February 16, 2022 to March 1, 2022. On March 2, 2022, the Jury returned a 

verdict finding the Appellant guilty on Count I, II, V, VI, and VII. The Jury did 

not impose the death penalty. 

The Appellant was sentenced on March 18, 2022. The Appellant was 

sentenced on Count I to life imprisonment in a State Penal or Correctional 

Institution or Facility, without the possibility of parole; ten to twenty years on 

Count II, to run concurrently with the sentence imposed at Count I; ten to twenty 

years on Count V, to run concurrently with the sentence imposed at Count I; seven 

to twenty years on Count VI, to run concurrently with the sentence imposed on 

Count I; seven to twenty years on Count VII, to run concurrently with the sentence 

imposed on Count I. No sentence was imposed for Count IV, as it was deemed to 

have merged with the sentence imposed on Count II. 

The Appellant filed a Post-Sentence Motion for Relief following sentencing 

on March 28, 2022. A Notice of Appeal was filed by the Appellant on July 26, 

2022. The Appellant was ordered to file a Concise Statement of Matters 

Complained of on Appeal on July 28, 2020. The Appellant timely filed a Concise 

' Order in Response to Appellant's Omnibus Pre-Trial Motion, December 30, 2021, Commonwealth v. Joshua Lee 

Diegdio, CP-04-CR-01795-2020 

Page 5 of56 
Statement of Matters Complained on Appeal and a Concise Statement of Errors 

Complained on Appeal on August 9, 2022. 

TRIAL 

The Commonwealth called multiple witnesses during their case in chief. For 

purposes of this opinion, testimony of Alessandra Briggs, Justin Laneve, Justin 

Schile, Bonnie Sedlacek, Daniel Viscuso, Timothy Higby, and Michael Motton 

will be summarized. 

On February 16, 2022, Alessandra Briggs ("Ms. Briggs") was called by the 

Commonwealth to testify. Ms. Briggs testified that she had been in a relationship 

with Latrell Parker ("Parker") for almost two years and that they had been living 

together at the Premises for about a month at the time of the incident.'° 

Ms. Briggs testified that she knew of Parker's friends, and that one of 

Parker's friends, Michael Waters ("Waters"), lived three houses down from the 

Premises.

16 Ms. Briggs stated that Parker socialized and hung out at Waters' house 

frequently." 

Ms. Briggs testified that she knew of a man nicknamed "Pun" who was an 

acquaintance of Parker, but that she did not have a friendship or relationship with 

him. Ms. Briggs testified that she had seen Parker briefly interact with Diegdio, 

S Transcript of Record: February 16, 2022, at 177, Commonwealth v. Diegdio, (2022) (No. 1795 of 2020). 

16 1d. at 180. 

Id. at 183. 

Page 6 of56 
stating that Parker had given Diegdio an eighth of marijuana before the incident."" 

Ms. Briggs identified Pun as the Appellant, Joshua Diegdio, during her courtroom 

testimony." 

Ms. Briggs testified that on the day of the incident, she worked until 7:00 

PM and when she returned home Parker was out playing basketball. When Parker 

did arrive home later, Ms. Briggs and Parker ate dinner and retired to bed around 

11:00 P.M.? Ms. Briggs testified that she was woken up a couple hours later by 

loud banging on her front door. Ms. Briggs asked who was there and received no 

response.

21 Ms. Briggs testified that she heard sounds consistent with someone 

walking down the front steps of her porch, so she thought whoever was at her door 

had left. A moment later, Ms. Briggs heard sounds consistent with someone 

walking up the steps of her front porch and heard pounding at her front door again. 

Ms. Briggs asked again who was there, and the person responded, "it's Big Pun, I 

need some fucking weed. "

22 Ms. Briggs told him it was one in the morning and to 

go away.

23 At that point Ms. Brigg's front door was kicked it, two men entered the 

premises with guns. Parker rolled off the bed, attempting to conceal himself from 

view.

24 

I" Id. at 184 

19 Id. 

30 1d. at 188 

2' 1d. at 192 

3 1d. at 193 

23 Id. 

24 Id. 

Page 7 of56 
Ms. Briggs testified that the men were wearing hospital masks, the Appellant 

was wearing a gray hoodie and basketball shorts, and the other male (Patrick 

Haynes) was wearing sweatpants and a black hoodie.

25 Ms. Briggs testified that 

when Diegdio spoke to her he pulled down his mask. 3° 

Ms. Briggs testified that the men began asking her where Parker was while 

waiving their guns in her face.

27 At this point, Parker stood up from the side of the 

bed and asked the Appellant why he was doing this.? The Appellant asked Parker 

for money, when Parker gave the Appellant cash, he demanded more money.

29 

Parker directed the Appellant to a bag containing single and five-dollar bills that he 

kept behind a television on top of his fireplace mantel.3 The Appellant removed 

the television and placed it on the floor.

31 The Appellant opened the bag, asked 

Parker if that was it, at which point he turned around and shot Parker.

32 

Ms. Briggs testified that once she heard gunshots, she closed her eyes, 

backed up against the wall and lowered herself on the floor, anticipating that she 

would be shot next.°? Ms. Briggs testified that Haynes asked the Appellant why he 

shot Parker, before receiving a response, Haynes shot Ms. Briggs." 

25 1d. at 195 

26 Id. 

Id. at 194 

28 Id. 

29 Id. at 197 

30 Id. 

3 14. 

32 Id. 

33 1d. at 197, 198 

34 1d. at 198 

Page 8 of56 
After being shot by Haynes, Ms. Briggs attempted to reach for her cell 

phone to call 911.° Once Ms. Briggs reached her phone, the screen illuminated, at 

which point the Appellant walked over to her and shot her in the chest.36 Ms. 

Briggs testified that she played dead until both men fled out the back door.

37 Once 

Ms. Briggs felt safe, she called 911 and was airlifted to a hospital in Pittsburgh.

38 

Ms. Briggs testified that she was shot a total of six times during the incident; and 

received gunshot wounds to her back, leg, chest, and hip.

39 Ms. Briggs stated that 

the bullet fragments in her body cannot be removed because they are in close 

proximity to vital organs and areas that would cause additional medical issues." 

While Ms. Briggs was receiving care at UPMC Presbyterian Emergency 

Room, a female detective came to see her and asked her to look at a photo lineup.

41 

Ms. Briggs testified that she was not in the emotional state to cooperate with the 

lineup at this time and that she asked the detective to leave.

42 

The Commonwealth's next witness was Justin Laneve ("Laneve"), a state 

trooper for the Pennsylvania State Police.

43 Laneve testified that he was patrolling 

Beaver Falls on the night of September 25, 2020, with his partner, Trooper Dillon 

3° Jd. at 199 

36 Id. 

37 1d. at 200 

" 1d. at 200, 202 

3 Id. at 219 

" 1d. at 203 

"Id. at 205 

Id. at 206 

4 Transcript of Record: February 17, 2022, at 62, 63, Commonwealth v. Diegdio, (2022) (N0. 1795 of 2020). 

Page 9 of56 
Burkarth.

44 Laneve provided testimony in conjunction with Commonwealth 

Exhibit 84a, which consisted of onboard camera footage from his patrol car.

45 

Laneve testified that the video depicted him and his partner pulling over a 

vehicle in Beaver Falls about a block away from the Premises.

46 Laneve testified 

that at a point in the video, time stamped I: 16 A.M., he observed a white Jeep 

Grand Cherokee go through the intersection at a rapid pace without coming to a 

complete stop at the stop sign.

47 Laneve testified that he found it odd that someone 

would fail to come to a complete stop and travel so quickly next to a patrol car that 

had its lights activated while police were conducting a traffic stop.

48 Immediately 

after observing the vehicle, Laneve scanned the Beaver County channel and 

became aware of shots fired nearby on 5" Avenue in the city of Beaver Falls." 

Laneve and his partner arrived on the scene after the traffic stop ended." 

Laneve spoke with his partner and members of the Beaver Falls Police Department 

about the white Jeep Grand Cherokee he observed during the traffic stop.

51 Later 

that night, once the scene was cleared, Laneve and his partner attempted to locate 

the Jeep without success.

52 

44 Id. at 65 

" 1d. at 68 

4 Id. at 69 

4 14. 

4" 14. 

"9 1d. at 70 

so Id. 

9 1d. at 79 

9 1d. 

Page 10 of56 
The Commonwealth called Detective Justin Schlie ("Det. Schlie") of the 

Beaver Falls Police Department.53 Det. Schlie was on duty the night of September 

25, 2020, and had just been relieved of his shift when he received a call from 

Captain Martin, of the Beaver Falls Police Department, asking him to respond to a 

shooting scene.? Captain Martin stated that one victim was deceased and another 

shooting victim had been airlifted to a hospital in Pittsburgh.

55 

Capital Martin asked Det. Schlie if he knew someone by the street name 

"Pun. "

56 Det. Schlie testified that at this point in time, he knew of a man named 

Josh Diegdio who went by the nickname of Pun.

57 Det. Schlie correctly identified 

the Appellant as Pun in the court room.° 

Det. Schlie testified that once he was on the scene, he was asked to go to the 

police station in order to assist the investigation, at which point he began working 

on a photo lineup of Diegdio." Det. Schlie testified that he began working on the 

lineup right away because a potential suspect was identified, and detectives 

believed that a victim was in critical condition in Pittsburgh. 

83 1d. at 82 

9 Id. at 83 

8 1d. at 83, 84 

56 Id. at 84 

97 14. 

Id. 

"9 Id. at 85; see also, Commonwealth Exhibit 85 

60 Id. 

Page 11 of56 
Det. Schlie testified that the photo array was generated through a database 

called JNET.

61 Det. Schlie testified that JNET is authorized by the Commonwealth 

of Pennsylvania to access driver's license photos that can be used in a photo 

lineup; the photos are self-generated by either the subject that is searched for or a 

description of the subject.° Det. Schlie testified that the lineup was eight pages, 

one photo per page, because of the protocol he is required to follow.

63 Det. Schlie 

testified that they generally use eight photos of different individuals. Once Det. 

Schlie completed the lineup, it was emailed to Detective Bonnie Sedlacek, who 

was in route to the hospital in Pittsburgh to see Ms. Briggs at this time. 

Detective Schlie testified about the instructions given when investigators 

conduct photo arrays with victims--detectives tell victims to take their time, to 

look at each photograph, and to make sure that they view every photo before they 

make their decision.

66 The photo array and identification are timed, when the 

victim identifies a suspect, investigators have them initial next to the photo they 

selected.

67 During the photographic array, the victim is presented with the 

photographs while the photographs are face down and the subjects are not visible. 

The victim is then told that whenever they are ready the investigator will begin to 

6 J4. 

1d. at 94 

0 1d. at 85 

6 1d. 

6 1d. at 87 

66 Id. at 98 

67 1d. at 99 

Page 12 of56 
flip the photographs over one at a time. The victims are advised to look at every 

page during this process.

69 

Det. Schlie testified that on September 26th, while he was working the day 

shift, Ms. Briggs called the station wanting to speak to someone in reference to the 

incident." Det. Schlie returned Ms. Briggs' phone call, at which point he was told 

she had received a Facebook request from the male that had shot her boyfriend. 

Det. Schlie testified that when he asked who that male was, Ms. Briggs stated the 

Facebook name was Joshua Diegdio.

71 Det. Schlie pulled up Diegdio's Facebook 

and asked if Ms. Briggs could describe the male she was looking at. 72 She stated 

that it was a large, light-skinned black male wearing a gray jumpsuit and that he 

was crossing his fingers.

73 Det. Schlie asked Ms. Briggs if she knew this male, and 

she stated she knew him as Pun, and that he was the male that shot her.

74 Det. 

Schlie asked how she knew him, and she stated that she knew him from Midland 

and that she had seen him hug Parker earlier in the day prior to the shooting.' 

The Commonwealth called Detective Bonnie Sedlacek ("Det. Sedlacek") of 

the Beaver County District Attorney's Office to testify.

76 Det. Sedlacek responded 

6 1d. at 108 

09 1d. 

70 1d. at 89 

71d. at 90 

72 Id. 

13 Id. 

7 Id. at 91 

75 14. 

76 1d. at 110 

Page 13 of 56 
to UMPC Presbyterian on the night of the incident and reached the hospital at 

about 2:10am." Upon her arrival, Ms. Briggs was in the trauma bay being 

treated.

78 

Det. Sedlacek was able to speak with Ms. Briggs once she was moved to a 

room in the emergency room." Ms. Briggs described the incident to Det. 

Sedlacek, and stated that she knew one of the men who shot her went by "Pun.8 

Det. Sedlacek relayed that information to investigators on the initial scene.

81 

Det. Sedlacek testified that while she was in the emergency room with Ms. 

Briggs things were chaotic and there was a flurry of activity due to Ms. Briggs 

being treated for her injuries." Det. Sedlacek testified that Ms. Briggs "was a 

wreck," and that she had been administered medication through an IV multiple 

times during the course of their conversation." Det. Sedlacek testified that Ms. 

Briggs was very upset and distracted at different points during their conversation, 

and crying on and off, however she was focused at some points. Det. Sedlacek 

said that Ms. Briggs was inquisitive about what was happening back at the scene, 

77 Id. at 112 

7 1d. 

79 1d. at 113 

80 Id. at 115 

81 Id. 

1d. at 114 

1d. at 137 

84 Id. 

85 1d. at 138 

Page 14 of 56 
talking to the nurses about her injuries, and trying to find out information about 

Parker.

86 

Det. Sedlacek attempted to administered a photo lineup to Ms. Briggs while 

she was in the emergency room." Det. Sedlacek testified that she was 

accompanied by a security guard who assisted in timing the photographic array, 

but that no other medical personnel were present in the room when the photo array 

was administered to Ms. Briggs." Det. Sedlacek testified that she gave 

instructions to Ms. Briggs, including how to observe the photographs, and told her 

that the individual may or may not be depicted in the photos." If Ms. Briggs was 

not I 00% certain that the photograph depicted the suspect, she was advised that 

she shouldn't select anyone." Det. Sedlecak began laying the photographs one at a 

time in front of Ms. Briggs.

91 Det. Sedlacek testified that she would take the first 

photograph away, and then put down the second photo, take the second one away 

and put down the third one, and continued to do so for all eight photographs." 

Detective Sedlacek stated that in the event someone needs to see a photograph in 

the array again, she would start from the beginning of the sequence and not just 

hand over one photograph. Det. Sedlecak testified that this process took under five 

86 1d. at 139 

87 Id. 

1d. at 131 

9 1d. at 120 

90 Id. 

91 Id. 

9? 14. 

Page 15 of56 
minutes, Ms. Briggs did not depict anybody and refused to participate any further 

at that time. 

The Commonwealth called Detective Daniel Viscuso of the Beaver County 

District Attorney's Office.

94 Det. Viscuso testified that he pulled surveillance from 

several areas around the scene and observed a white Jeep Grand Cherokee in the 

area at the time of the incident." Det. Viscuso stated that he was able to determine 

that the Jeep Grand Cherokee was rented from an Enterprise Car Rental, on 

Darlington Road in Chippewa, under Michael Waters name.

96 The car had been 

rented from mid-September to October 1". 

The Commonwealth's next witness was Timothy Higby ("Det. Higby"), 

Detective and Captain for the Beaver County Falls Police Department.97 At the 

time of the incident, Det. Higby was a Detective and Sargent for the Beaver 

County Falls Police Department.98 He had been assigned lead investigator for this 

incident. ° 

Det. Higby stated that as part of the investigation he collected surveillance 

from several areas around the premises.' Higby testified that he viewed 

surveillance from Franklin Tower, Early Head Start, Sweet Pea's Gas Station, and 

9 Id. at 121 

94 Id. at 143 

9· Id. at 153 

6 Id. at 154 

97 1d. at 157 

98 Id. 

99 Id. at 158 

1o Id. at 245 

Page 16 of56 
a Sheetz gas station located in the area." Det. Higby testified that surveillance 

showed a white Jeep Grand Cherokee ("vehicle") travelling north and entering the 

1400 block of Thomas Alley." At one point, the footage shows the vehicle's 

lights switch off, the car eventually pulls off to the side of the alley and remains 

there. Higby testified that this was noteworthy, suspicious activity in his 

investigation, especially when being reviewed in light of a homicide.' 

Surveillance was also pulled from 1622 6" Avenue." Police observed that 

this location had an unsecured system and a camera facing out towards the front 

porch which possibly captured the roadway.'° This footage was recovered, and it 

also showed a white Jeep Grand Cherokee in the area.'° 

The vehicle was spotted again on Sweet Pea's secured surveillance footage, 

traveling up Route 18 going North.I The vehicle was seen again on secured 

surveillance footage pulled from Sheetz travelling north on Route 18, time stamped 

1:19:11 A.M.I 

The Commonwealth called Michael Motton ("Motton") as a witness.I 

Motton lived in Beaver Falls at the Super 8 Motel and was a friend of Parker.' 

Io! Jd. at 225 

10 Id. 

103 Id. 

Io Id. at 234 

10 Id. 

1o Id. at 237 

I0 Id. at 247 

Io8 Id. at 249 

Io9 Transcript of Record: February 22, 2022, at 16, Commonwealth v. Diegdio, (2022) (No. 1795 of 2020). 

Io Id. at 19 

Page 17 of56 
Motton testified that he often drove a White Jeep Grand Cherokee during 

September 2020 that was rented under Michael Waters' ("Waters") name.

111 

Motton testified that he was charged with conspiracy to commit robbery in 

connection with this case.' Motton also had charges filed against him regarding 

an unrelated incident, person not to possess a firearm, in August 2019 .

113 Motton 

testified that he entered a guilty plea on this charge and received a twenty-year 

parole and five-year house arrest sentence.'! He was given an incentive to testify 

at the Appellant's trial. In exchange for his truthful testimony, Motton would have 

the time for parole dropped from twenty years to ten years.''° 

Motton testified that on the night of September 24, the Appellant was 

socializing with Motton and other people in Waters' front yard.

116 Motton stated 

that "Latrell actually came running down the street and jumped in [Diegdio] 's arm 

like a baby."7 

At one point in the night, Waters drove the Jeep Grand Cherokee to a 

Speedway gas station with Josh Diegdio, Patrick Haynes and Michael Motton.

118 

Motton testified that they returned to Waters' house and, at around I :00am, 

Diegdio and Haynes asked if Motton would "pick them up after they hit the 

Id. at 2I 

1 1d. at 22 

1d. at 24 

1 1d. at 25 

H> pd; see also, Commonwealth Exhibit 170: Plea agreement 

16 Id. at 29 

1? Id. at 53 

I Id. at 29 

Page 18 of 56 
lick."9 Motton testified that hit a lick means to rob or to take somebody's 

possessions.2 

Motton testified that he was advised to pick Diegdio and Haynes up in 

Thompson Alley, behind Waters' house.

121 Waters' house was located three 

houses away from the Premises where Parker was killed and Ms. Briggs was 

wounded.22 

Motton then proceeded to drive down the alley, but didn't see anyone.

123 At 

that point, Motton testified that he returned to the front of Waters' house.

124 After 

a couple of minutes went by, Waters' instructed Motton to return to the alleyway 

and park in the church parking lot.'° When he pulled back off in the alley, he 

could see Haynes and the Appellant go into the yard of the Premises and walk up 

to the porch. At this point, Motton lost sight of them.'2° 

After a few minutes, Motton did not see anyone and proceeded to drive back 

to his hotel room, testifying that at this point he felt uncomfortable.

127 As he was 

pulling down the alley, he came across Haynes and the Appellant standing on both 

I9 Jd. at 32 

1a0 1d. at 33 

121 Id. 

12 1d. at 34 

123 1d. at 36 

Id. 

ns 14. 

126 J4. 

17 1d. at 38 

Page 19 of 56 
sides of the street.28 Motton proceeded to stop the vehicle and allowed the 

Appellant and Haynes to get in. 2 

Motton testified that he didn't talk to Haynes or the Appellant until he saw a 

patrol car conducting a traffic stop about a block away, at this point he mentioned 

to the Appellant that he didn't have a license.' Once they reached the Super 8, 

the Appellant asked if Motton would go to the front desk and get the Appellant's 

room key.

131 

Once he gave them the key, the parties separated. At one point, the 

Appellant re-approached Motton and asked for a cigarette.3 Motton told him that 

he had to ask Motton's girlfriend, Brittany Lavette ("Lavette"), who was in 

Motton's hotel room.

134 Appellant then told Motton that if Motton went back 

downtown, to ask Water's brother if he was still going to front the Appellant 

money to buy weed.

135 Motton testified that he found this statement to be weird, 

because Appellant should have had money to buy weed.'3 

Once the Appellant left, Motton received a call from Waters' telling him that 

he thought Latrell Parker and Alessandra Briggs had been shot.137 At that point, 

128 1d. at 39 

129 Id. 

10 Id. 

I31 Id. at 40 

13 Id. at 4 

133 Id. 

I I4. 

135 1d. at 42 

136 Id. 

137 1d. at 43 

Page 20 of 56 
Motton drove the white Jeep Grand Cherokee back to 5th Ave.

138 Motton arrived 

at the scene and tried to get Waters' attention.

139 According to Motton, he was 

unable to speak to Waters until a couple of hours later. At this point, Waters and 

Motton agreed to go back to the Super 8 with a firearm to get street justice. 

Motton testified that this meant "do something back to them ... anything that we 

can, shoot them, rob them, anything that we can." 

When Motton and Waters returned back to the Super 8, Motton's girlfriend, 

Lavette, told them that the Appellant had come back to the hotel room after Motton 

left, that she did not know what room he was in but she believed that the Appellant 

and Haynes had left in a cab.' 

The Commonwealth also called Deputy Doug Hanna ("Deputy Hanna"), 

who was involved in the transport of the Appellant from Philadelphia to Beaver 

County.

142 Prior to Deputy Hanna's testimony, a sidebar before the Court took 

place, at which point an oral motion by the Commonwealth was made for the 

admittance of the Appellant's statement to Deputy Hanna during transport.

143 

When Deputy Hanna was transporting the Appellant, the Appellant 

spontaneously said, without questioning, that he did not understand why the 

deputies were treating him like El Chapo just because of a couple of bodies. The 

18 Id. 

19 I4. 

140 1d. at 46. 

4 Id. at 47 

1+ Transcript of Record: February 28, 2022, at 28, Commonwealth v. Diegdio, (2022) (No. 1795 of 2020). 

143 Id. 

Page 21 of56 
Commonwealth argued that the statement made by the Appellant during transport 

was an admission by the Appellant because he had knowledge that there were two 

victims involved. 

The Appellant's counsel objected to the statement being used as an 

admission, and also raised the issue of the statement being "prejudicial."

144 The 

defense argued that this was not a direct admission and allowing the statement in 

would allow the jury to infer too much from a "relatively vague statement" without 

context as to whether the Appellant knew or did not know of the fact that he was 

being arrested for murder.

145 

The Court overruled the defense's objection to the admittance of the 

admission. The court reasoned that, in light of the fact that the Criminal Complaint 

was filed on September 28th, and that the incident giving rise to the statement 

occurred a month later, the testimony of Deputy Hanna should be allowed. The 

Court stated that there was no question that the Appellant made the statement, and 

that it should be considered an opposing party's statement ( declaration against his 

interest).

146 

Deputy Hanna testified that on October 27, 2020, he went to Philadelphia in 

order to pick up the Appellant and transport him back to Beaver County Jail.' 

I Id. at 30 

+5 Id. at 35 

46 Id. at 165 

47 1d. at 43 

Page 22 0f56 
Deputy Hanna testified that he was unaware if the Appellant would have been 

infonned of his charges prior to being transported.

148 Deputy Hanna testified that 

he didn't know the exact documents the facility received, but that he is usually sent 

to pick up an inmate with a packet of paperwork containing copies of documents 

which are faxed to the facility prior to the deputies going out to retrieve the 

inmate.' Deputy Hanna stated he was unaware of the protocols followed by the 

facility in Philadelphia, specifically he was unaware if they would have provided 

paperwork to the inmate or informed him of his charges prior to being picked up. 

150 

Deputy Hanna testified that when he was picking up the Appellant, "he 

made a statement to me that we were treating him like [sic] El Chapo just because 

of a couple of bodies."!5 

Once testimony concluded, the Court met with both parties prior to reading 

instruction to the jury. The Court stated that at the very least this statement could 

be viewed as a statement against interest.5 The Court stated that, although this 

statement was not made in response to police questioning, the evidence provided 

during testimony addressed an admission and jury instructions would have to 

provide for what is considered a spontaneous admission and a voluntary 

148 Id. at 45 

149 I. 

ISO Id. 

IS Id. at 43 

19 1d. at 164 

Page 23 0f 56 
admission.'5 The Court instructed the jury that they may not consider the 

statement as evidence against the Appellant unless they found beyond a reasonable 

doubt that the alleged crimes had been committed.' 

ISSUES 

Appellant's Concise Statement of Matters Complained of on Appeal are as 

follows (recited verbatim): 

I. The Trial Court erred by not granting Appellant's motion for judgement of 

acquittal, at the conclusion of the Commonwealth's case, on the basis that 

The Commonwealth failed to prove that the Appellant was the actual 

person that committed the following charges: First Degree Murder, 

Criminal Attempt-Murder of the First Degree, Aggravated Assault, 

Robbery-Inflict Serious Bodily Injury, Burglary-Overnight 

Accommodations; Person Present Bodily Injury Crime and Conspiracy to 

Commit Robbery-Inflict Serious Bodily Injury (Weight of Evidence). 

II. The Trial Court erred by not granting Appellant's motion for judgement of 

acquittal, at the conclusion of the Commonwealth's case, on the basis that 

there was insufficient evidence to support all of the charges; First Degree 

Murder, Criminal Attempt-Murder of the First Degree, Aggravated 

Assault, Robbery-Inflict Serious Bodily Injury, Burglary-Overnight 

Accommodations; Person Present Bodily Injury Crime and Conspiracy to 

Commit Robbery-Inflict Serious Bodily Injury 

III. The Trial Court erred and/or abused its discretion in failing to grant the 

Appellant's motion for judgment of acquittal at the conclusion of the 

Commonwealth's case in chief, as there was insufficient evidence as to all 

counts, because the Commonwealth failed to establish that the Appellant 

committed the crimes. 

IV. The Trial Court erred and/or abused its discretion when it denied the 

Appellant's omnibus pre-trial motion, including the motion to suppress the 

183 1d. at 153 

15 1d. at 43 

Page 24 0f 56 
photo array of the Appellant and the motion to suppress any evidence 

seized from the Appellant's ZTE cellular phone. 

V. The Trial Court erred and/or abused its discretion when it determined the 

Appellant's statement about being treated like El Chapo was an admission 

and permitted the testimony of Deputy Sheriff, Doug Hanna. 

ANALYSIS 

THE COMMONWEALTH ESTABLISHED BEYOND A REASONABLE 

DOUBT THAT APPELLANT COMMITTED THE CRIMES CHARGED 

AGAINST HIM 

WEIGHT OF THE EVIDENCE 

Diegdio's first claim is that the verdicts are against the weight of the 

evidence. He contends that another individual, Brandon Cannon, put a "hit" out on 

the victim because that individual believed that the victim fired shots into that 

person's residence. This, Diegdio continues, established a motive for Mr. Cannon to 

murder the victim especially when the evidence showed that earlier on the day of 

the killing, Diegdio "embraced the victim." Even though the surviving victim 

identified Diegdio in court at trial and, even though that same surviving victim 

knew Diegdio and identified him at the scene and named him in the 911 call made 

minutes after the assault, Diegdio maintains that only the corrupt and polluted 

source witness, Michael Motten "put [Diegdio] at the scene." 

"A challenge to the weight of the evidence is distinct from a challenge to the 

sufficiency of the evidence in that the former concedes that the Commonwealth has 

produced sufficient evidence of each element of the crime, but questions which 

Page 25 of 56 
evidence is to be believed." Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. 

Super. 2006); see also Commonwealth v. Edwards, 229 A.3d 298, 306, appeal 

granted in part, 237 A.3d 978 (Pa. 2020), and affd, 256 A.3d 1130 (Pa. 2021) 

(same). "The weight of the evidence is exclusively for the finder of fact, who is 

free to believe all, none[,] or some of the evidence and to determine the credibility 

of the witnesses." Commonwealth v. Talbert, 129 A.3d 536, 545 (Pa. Super. 

2015) (quotations omitted). "Resolving contradictory testimony and questions of 

credibility are matters for the finder of fact." Commonwealth v. Delmonico, 251 

A.3d 829, 837 (Pa. Super. 2021). A court may not substitute its own judgment for 

that of the trier of fact. See Id. (citing Talbert, 129 A.3d at 545). 

"In order for an Appellant to prevail on a challenge to the weight of the 

evidence, the evidence must be so tenuous, vague and uncertain that the verdict 

shocks the conscience of the court." Talbert, 129 A.3d at 545 (internal quotation 

marks and citations omitted). When ruling on a weight claim, the trial court must 

determine whether "certain facts are so clearly of greater weight that to ignore 

them, or to give them equal weight with all the facts, is to deny justice." 

Commonwealth v. Holt, 273 A.3d 514, 532 (Pa. 2022), cert. denied sub 

nom. Holt v. Pennsylvania, 22-5463, 2022 WL 16542034 (U.S. Oct. 31, 2022) 

( citation omitted). 

Page 26 of56 
InCommonwealth v. Smyser, 195 A.3d 912 (Pa. Super. 2018), the 

Superior Court pointed out that identity is also an element of each crime that must 

be proven beyond a reasonable doubt: 

"In addition to proving the statutory elements of the crimes charged beyond a 

reasonable doubt, the Commonwealth must also establish the identity of the 

Appellant as the perpetrator of the crimes." Commonwealth v. Brooks, 7 

A.3d 852, 857 (Pa. Super. 2010), appeal denied, 610 Pa. 614, 21 A.3d 1189 

(2011 ). "Evidence of identification need not be positive and certain 

to sustain a conviction." Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. 

Super. 2011 ( en bane) ( citation omitted), appeal denied, 617 Pa. 63 7, 54 A.3d 

348 (2012). As our Supreme Court has stated "any indefiniteness and 

uncertainty in the identification testimony goes to its weight. Direct evidence 

of identity is, of course, not necessary and an Appellant may be convicted 

solely on circumstantial evidence." Commonwealth v. Hickman, 453 Pa. 

427,430, 309 A.2d 564, 566 (1973) (citations omitted). 

Id. at 915. 

Further, to the extent that Diegdio challenges whether he was proven to be 

the perpetrator of the crimes due to questions surrounding the reliability of the 

witness' identification at trial, that claim goes to the weight of the evidence, not the 

sufficiency. "[A ]ny uncertainty in an eyewitness's identification of an Appellant is a 

question of the weight of the evidence, not its sufficiency." Commonwealth v. 

Cain, 906 A.2d 1242, 1245 (Pa. Super. 2006) (deeming identification evidence 

sufficient, even where witnesses had previously identified the appellant in a photo 

array and at a preliminary hearing, but then expressed uncertainty in their 

identification at trial); see also Commonwealth v. Kinney, 157 A.3d 968, 971-72 

(Pa. Super. 2017) ("Appellant argues that the victims provided 'unconvincing' and 

Page 27 of56 
Circulated 12/14/2023 10:21 AM

'vague' identifications and 'inconsistencies regarding the Commonwealth's physical 

evidence.' Such claims are directed entirely to the credibility of the victim's 

testimony, and, as such, challenge the weight, not the sufficiency, of the evidence.") 

( citations omitted). 

In this, case, the calamitous events of that evening began when Diegdio 

announced his name to his intended victims as he pounded on the portal to the 

victims' abode. The observations of the surviving victim confirmed that the intruder 

was the person who announced his presence outside the door and positive trial 

identification testimony of Diegdio was then provided by Ms. Briggs. This 

testimony wherein the surviving victim positively identified Diegdio as the shooter, 

during Diegdio' s trial, alone, provides a sufficient basis to establish his identity as 

the perpetrator of the crimes for which he was convicted. See Commonwealth v. 

Duncan, 373 A.2d 1051, 1053-54 (Pa. 1977) (testimony of a single eyewitness 

sufficient to support conviction for third-degree murder); Commonwealth v. 

Johnson, 180 A.3d 474, 478 (Pa.Super. 2018) ("A victim's in-court testimony, 

identifying the Appellant as the perpetrator of a crime, is by itself sufficient to 

establish the identity element of that crime."). 

Video surveillance evidence placed Diegdio at the scene when the attack 

occurred and Michael Motton then whisked Diegdio and his companion from the 

scene as was his task in the plot of Diegdio and another to "hit a lick" at the home 

Page 28 of 56 
where one person was killed and another was critically wounded. This court, under 

these facts, cannot find that the evidence of guilt was so tenuous, vague and 

uncertain that the verdict shocks the conscience of the court. Therefore, the postsentence weight of the evidence claim was properly denied. 

SUFFICIENCY OF THE EVIDENCE 

Diegdio next asserts that the Commonwealth did not sufficiently establish 

that he was the shooter on the day in question. In essence, he challenges the 

sufficiency of the evidence showing that he was the perpetrator of crimes for which 

he was convicted. 

The standard and scope of review of challenges to the sufficiency of the 

evidence is well-settled: [W]e evaluate the record in the light most favorable to the 

Commonwealth as verdict winner, giving it the benefit of all reasonable inferences 

to be drawn from the evidence. Evidence will be deemed sufficient to support the 

verdict when it establishes each material element of the crime charged and the 

commission thereof by the accused, beyond a reasonable doubt. Any doubt about 

the Appellant's guilt is to be resolved by the fact-finder unless the evidence is so 

weak and inconclusive that, as matter of law, no probability of fact can be drawn 

from the combined circumstances. Additionally, the Commonwealth may sustain its 

burden solely by means of circumstantial evidence. Commonwealth v. Lake, --- 

Page 29 0f 56 
A.3d ---, 2022 PA Super 142, at *2 (Pa. Super. filed Aug. 15, 2022) (citations and 

quotations omitted). 

In applying the above test, the entire record must be evaluated[,] and all 

evidence actually received considered. [T]he trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced, is free to believe 

all, part or none of the evidence. Commonwealth v. Orr, 38 A.3d 868, 872-73 (Pa. 

Super. 2011). Finally, the facts and circumstances established by the 

Commonwealth need not preclude every possibility of innocence. Id. at 872. 

Although challenges to identity generally speak to the weight of 

the evidence, a narrow class of claims give rise to valid sufficiency challenge. 

Commonwealth v. Orr, 38 A.3d 868, 874 (Pa. Super. 2011) (en bane). To sustain 

a conviction, evidence of identification need not be positive and certain, and any 

indefiniteness or uncertainty in the identification testimony goes to its 

weight. Commonwealth v. Minnis, 458 A.2d 231, 234 (Pa. Super. 1983). 

"[A ]!though identification based solely on common items of clothing and general 

physical characteristics is insufficient to support a conviction, such evidence may 

be considered to establish identity along with other circumstances and the proffered 

identification testimony." Id. at 233 (citations omitted). In the presence of 

additional evidentiary circumstances, "any indefiniteness and uncertainty in the 

Page 30 of 56 
identification testimony goes to its weight." Commonwealth v. Orr, 38 A.3d 868, 

874 (Pa. Super. 2011) (citation omitted). 

In Minnis, supra., the Court found that evidence was sufficient to establish 

the identity of the perpetrator of a robbery where a witness identified the Appellant 

by his jacket, the Commonwealth established that the Appellant was part of a group 

standing threateningly close to the victim, and the victim was familiar with 

Appellant as a member of that group. Id. 459 A.2d at 234. 

Diegdio attacks the sufficiency of the evidence underpinning his convictions 

on identical grounds as those that were alleged in his weight of evidence claim. In 

particular, Diegdio alleges that the Commonwealth presented insufficient evidence 

to identify him, beyond a reasonable doubt, as the intruder who entered home of the 

home Latrell Parker and Alessandra Briggs. 

In Commonwealth v. Johnson, 2018 PA Super 40, 180 A.3d 474,478 (Pa. 

Super. Ct. 2018), the Appellant claimed that insufficient evidence existed to 

support "his identity as the perpetrator of the robbery committed against the 

victim." His argument was that "the victim's testimony could not establish, by 

itself, his identity as the perpetrator of the robbery." Id. The court held that, under 

those circumstances where a victim provided in-court testimony identifying the 

Appellant as the perpetrator, the argument of the Appellant in that case had "no 

support in existing case law." 

Page 31 of56 
The Johnson court found that "[A] victim's in-court testimony, identifying 

the Appellant as the perpetrator of a crime, is by itself sufficient to establish the 

identity element of that crime. ( citation omitted). The court dismissed that 

attempts of the Appellant to "enhance his argument by asserting that the 

Commonwealth failed to present any corroborating evidence to support the victim's 

in-court identification testimony" as the court held that the lack of corroborating 

evidence "does not establish that the identity evidence was insufficient." Id. Even 

the "assertion that the victim's testimony was contradicted by his own" testimony 

was found to be "irrelevant" to a sufficiency analysis. Id. "Variances in 

testimony ... go to the credibility of the witnesses and not the sufficiency of the 

evidence." Id. (citation omitted). The sufficiency assertion in that case was thus 

found to be without merit. Id. 

The sufficiency claims as developed by Diegdio are asserted with the 

backdrop consisting of evidence that Alessandra Briggs, the surviving victim, 

identified Diegdio as the assailant at trial. Even Diegdio as he first attempted to 

gain access to the Beaver Falls apartment told Ms. Briggs that it was "Big Pun" at 

the door that early morning and that he was seeking to enter the Parker and Briggs' 

apartment. "Big Pun" was the nom de querre for which Diegdio was known by in 

the community. Minutes after Diegdio shot Ms. Briggs on his way out of the 

Page32 of56 
Premises, Ms. Briggs called 911 and identified Diegdio by his street moniker and a 

physical description. 

Michael Motton, with testimony corroborated by sequential videos, described 

the planning of the robbery of the Parker-Briggs home and he plotted out the course 

of travel with Diegdio, from the time that Diegdio got into the car near the scene 

immediately after the shooting, until his arrival at the motel. Once Diegdio was at 

the motel, Brittaney La Vette recalled how Michael Motton and Diegdio arrived 

together into her room and then she described Diegdio's actions in removing a gun 

from his waist and putting it on a piece of furniture in the motel room. Under these 

circumstances, and in viewing the record in the light most favorable to the 

Commonwealth as verdict winner, giving it the benefit of all reasonable inferences 

to be drawn from the evidence, the sufficiency of evidence claim is without merit. 

The issue set forth in the number three of the Concise Statement filed by 

Diegdio raises the same sufficiency of evidence claims addressed in the prior 

section of this Opinion and are deemed to be without merit for the same reason. 

THE TRIAL COURT DID NOT ERR OR ABUSE ITS DISCRETION 

WHEN DENYING THE APPELLANT'S OMNIBUS PRE-TRIAL MOTION 

On August 25, 2021, the Appellant filed an Omnibus Pre-Trial Motion, 

consisting of a Motion to Suppress the Search Warrant for Appellant's Facebook 

Account, Motion to Suppress the Search Warrant for Appellant's Cellular 

Page 33 of56 
Telephone, a Motion to Suppress the Identification of Appellant stemming from 

the Photo Array, and Motion for Discovery. A hearing upon these matters was held 

on November 15, 2021. At the time of the hearing, the Commonwealth presented 

the testimony of Detective Justin Schlie, City of Beaver Falls Police Department, 

Detective Timothy Higby, City of Beaver Falls Police Department, and Detective 

Roger Patrick Young, Beaver County District Attorney's Office. The 

Commonwealth also entered the photo lineups, a video of the interview with the 

Brittany Lavette, and the search warrants into evidence. The Appellant has 

asserted that the suppression court erred and/or abused its discretion when it denied 

the motion to suppress the photo array and the cell phone search warrant. 

Identification and Photo Lineup 

Detective Schlie of the Beaver Falls Police Department responded to the 

police department on September 25, 2020 to assist with a homicide investigation. 

Captain Higby asked him to finish preparing a photographic array he had started so 

that the Captain could conduct an interview. Detective Schlie advised that he was 

then assisted by Detective Robert Heberle with compiling the photo array. 

Detective Schlie testified that the general process starts by entering the 

suspect's information and pulling up a reference photo. Then, the system provides 

a "search similar" option and auto populates photographs for use by the officers 

based on the physical characteristics of the suspect. When asked if the program 

Page34 of56 
permits the user to further narrow the search by entering in search criteria based on 

the suspect's physical characteristics, the Detective indicated that it does have this 

option and that he believed he did enter such characteristics. 

The array was sent to Detective Bonnie Sedlacek, who was at a hospital in 

Pittsburgh with the surviving victim in the case. However, Detective Sedlacek 

brought to Detective Schlie's attention that the background on the Appellant's 

photo was a different color than the other photos. Therefore, Detective Schlie 

obtained another photo of the Appellant with a background color that matched the 

other photos in the array. 

This photo array was shown to Commonwealth witness, Brittany Lavette, on 

October 1, 2020 during an interview with Detective Higby and Detective Michael 

Kryder. This interview was recorded and introduced at the Suppression Hearing. 

Ms. Lavette indicated that an individual that she was unfamiliar with came to her 

hotel room the night of the homicide accompanied by a person she knew. She was 

provided the photo array and asked to identify if any of the people in the array 

were the individual. She ultimately picked out the photograph of the Appellant. 

Appellant avers that the photo array was unduly suggestive and unreliable 

and therefore should be suppressed. 

Search Warrant - Cellular Phone 

Page 35 of 56 
The Appellant was arrested in the City of Philadelphia and, at that time, the 

Appellant was in the possession of a ZTE cellular telephone. A search warrant was 

obtained, with the assistance of the authorities in Philadelphia, to seize the cellular 

telephone from the Appellant's property at the Curran Formhold Corrections 

Facility in Philadelphia. Then, Detective Young applied for a search warrant for a 

forensic extraction of the data contained in the Appellant's phone. 

The Application for the Search warrant was signed by the Honorable Kim 

Tesla of the Court of Common Pleas of Beaver County.'S° The Affidavit of 

Probable Cause spanned nearly three (3) pages and began with a description of 

Detective Young's extensive experience as a detective.

156 The Affidavit of 

Probable Cause then goes through a timeline of events from the time of the 

homicide up until the apprehension of the Appellant in Philadelphia. Then, the 

affidavit of probable cause concludes with Detective Young's stated belief that 

information may be contained on the cell phone by reason of his training and 

experience that criminals commonly utilize cell phones to coordinate and 

communicate before, during, and after the commission of criminal activity. 

The Application for Search Warrant requests all the information contained in 

the cellular telephone for the time period of September 18, 2020 through 

September 29, 2020. 

15· Commonwealth Exhibit 5, Application for Search Warrant, p. I. 

15 1d. at p.2 71. 

Page 36 of56 
The Appellant asserted that the search warrant for the cellular telephone was 

overbroad and had no nexus to the criminal charges at issue. 

DISCUSSION 

MOTION TO_SUPPRESS THE PHOTO_ARRAY_AND SUBSEQUENT IDENTIFICATION_BY 

BRITTANY LAVETTE 

Whether an out of court identification is to be suppressed as 

unreliable, and therefore violative of due process, is determined from 

the totality of the circumstances. Suggestiveness in the identification 

process is a factor to be considered in determining the admissibility of 

such evidence, but suggestiveness alone does not warrant exclusion. 

Identification evidence will not be suppressed unless the facts 

demonstrate that the identification procedure was so 

impermissibly suggestive as to give rise to a very substantial 

likelihood of irreparable misidentification. Photographs used in lineups are not unduly suggestive if the suspect's picture does not stand 

out more than the others, and the people depicted all exhibit similar 

facial characteristics. 

Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa.Super.2011) (quotation marks 

and citations omitted). Due process requires police to assemble 

an array of photographs of individuals who resemble the suspect, not the 

description provided by the victim or eyewitness. Commonwealth of 

Pennsylvania v. Tyrell Bishop, 2021 PA Super 222, f.n. 4 (Pa. Super. Ct. Nov. 

15, 2021). Finally, the assertion of an incidental variation in appearance does not 

prove undue suggestiveness. Commonwealth v. Kearney, 92 A.3d 51, 66 (Pa. 

Super. Ct. 2014). 

Page 37 0f 56 
After hearing and review of the lineup photos, the trial court found that the 

background of each photo was similar, that each photo was of a headshot of the 

depicted individuals, that the facial features of all of the men were similar and that 

all of the men depicted in the photographs appeared to be of a similar age. The 

men were noted to have similar facial characteristics, facial hair, and hairlines. A 

mild variation in the complexion of the individual shown in photograph five (5) 

was noted and the suppression court found that the photograph of the Appellant 

showed a tattoo on his neck while the only other man in the lineup with an 

observable tattoo was the man in photograph two (2). The complete neckline of 

the men in photographs one (1), five (5) and seven (7) were found to be partially 

obstructed so that no neck tattoos were observable on those subjects and the 

remaining men in the photographs were found to have no neck tattoos. The 

suppression court held that these variations did not make Appellant's photograph 

stand out more than the others. 

In Commonwealth v. Fisher, 769 A.2d 1116 (Pa. 2001), the appellant 

argued that the photo array was unduly suggestive because "both witnesses 

described the suspect as a light-skinned African-American male with freckles and 

a goatee, while only six of the eight pictures in the line-up showed men with 

goatees, and only one, the picture of the appellant, showed a man with 

freckles. Id. at 1126. Despite the fact that all of the men in the photographs did not 

Page 38 of56 
have goatees or freckles, the Supreme Court held that the photographs were 

substantially similar ..." Id. at 1127. In Fisher, the Court noted the pictures were 

selected by a computerized system based upon similarity to the appellant and 

found the trial court did not abuse its discretion in reviewing and finding nothing 

unduly suggestive in the array. Id. 

In Commonwealth v. Kearney, 92 A.3d 51, 66 (Pa.Super. 2014), the Court 

found that the claim that Appellant was the only person of light complexion 

included in the photo array was not supported by the evidence and the claim that 

the Appellant was the only person smiling in the array was insufficient proof of 

unreliability and suggestiveness. Commonwealth v. Crork, 966 A.2d 585 

(Pa.Super. 2009) is a case where the Appellant claimed that the photo array was 

unduly suggestive where the array contained men of similar appearance but only 

one other man with light colored eyes was rejected as the Court found that the 

Appellant's photo did not stand out from the others. 

In this case, in considering the totality of the circumstances, the court 

concluded that witness Brittany Lavette's out-of-court identification was not based 

upon a photo array so infected by suggestiveness as to give rise to a substantial 

likelihood of irreparable misidentification. The suppression court noted that the 

array was computer generated and that the backgrounds were the same. Finally, 

the suppression court found that all of the men in the photo array exhibited similar 

Page 39 of 56 
facial characteristics. Accordingly, based on those findings made by the 

suppression court, the ruling which denied the request to suppress the lineup 

should not be disturbed as the factual findings of the suppression court are 

supported by the record and the legal conclusions drawn from those facts are 

correct. 

MOTION TO SUPPRESS SEARCH WARRANT FOR CELL PHONE 

In Section "C of the Omnibus Pre-Trial Motion, the Appellant was seeking 

to suppress of the forensic download of his cell phone. Appellant contended that 

the search warrant was lacking a sufficient nexus to the alleged crimes, lacking in 

particularity and that the search warrant was overbroad. 

The Constitutional claims surrounding the suppression issues raised by the 

Appellant are derived from the Fourth Amendment to the United States 

Constitution and Article I, Section 8 of the Pennsylvania Constitution. Those 

Constitutional provisions provide protections "from unreasonable searches and 

seizures by police in areas where individuals have a reasonable expectation of 

privacy." Commonwealth v. Barr, 266 A.3d 25, 39 (Pa. 2021). "If a person has a 

reasonable expectation of privacy in a place, then these constitutional provisions 

generally require police to obtain a warrant to search the place; a search warrant 

must be supported by probable cause and issued by a neutral, detached 

magistrate." Id. 

Page 40 of56 
In Commonwealth v. Johnson, 240 A.3d 575, 585 (Pa. 2020), the Article I, 

Section 8 of the Pennsylvania Constitution protections that "no warrant to search 

any place or to seize any person or things shall issue without describing them as 

nearly as may be, nor without probable cause, supported by oath or affirmation 

subscribed to by the affiant" were explained as follows: 

Article I, Section 8 of the Pennsylvania Constitution ensures that 

citizens of this Commonwealth are protected from unreasonable 

searches and seizures by requiring that warrants: (I) describe the place 

to be searched and the items to be seized with specificity and (2) be 

supported by probable cause to believe that the items sought will 

provide evidence of a crime. See, e.g., Commonwealth v. Waltson, 

555 Pa. 223, 724 A.2d 289, 292 (1998). Regarding the former 

requirement, we have interpreted the phrase "as nearly as may be" in 

Article I, Section 8 "as requiring more specificity in the description of 

items to be seized than the federal particularity requirement." Id. at 

291, citing Commonwealth v. Grossman, 521 Pa. 290, 555 A.2d 

896, 899 (1989) ("The clear meaning of the language is that a warrant 

must describe the items as specifically as is reasonably possible."). 

This more stringent requirement makes general searches impossible 

and '"prevents the seizure of one thing under a warrant describing 

another."' Grossman, 555 A.2d at 899, quoting Marron v. United 

States, 275 U.S. 192, 196, 48 S.Ct. 74, 72 L.Ed. 231 (1927); see 

also Commonwealth v. Matthews, 446 Pa. 65, 285 A.2d 510, 514 

(1971) ("It cannot be disputed that general or exploratory searches 

through which officers merely hope to discover evidence of [ a ]ny kind 

of [a]ny wrongdoing are not constitutionally permissible."). 

Commonwealth v. Johnson, 240 A.3d 575, 584 (Pa. 2020) (original citations 

included). 

Page 41 of56 
The required analysis for alleged overbreadth and lack of particularity 

(ambiguity) attacks on a search warrant were described as follows in a recent 

Pennsylvania Supreme Court case: 

[B]oth doctrines diagnose symptoms of the same disease: a warrant 

whose description does not describe as nearly as may be those items 

for which there is probable cause. For that reason, when assessing 

the validity of the description contained in a warrant, the natural 

starting point for a court is to determine for what items probable 

cause existed. The sufficiency of the description [in the warrant] 

must then be measured against those items for which there was 

probable cause. Any unreasonable discrepancy between the items for 

which there was probable cause [to search] and the description in the 

warrant requires suppression. This is because an unreasonable 

discrepancy reveals that the description was not as specific as 

reasonably possible, meaning the warrant is overbroad, ambiguous, or 

perhaps both. 

Commonwealth v. Green, 265 A.3d 541, 551 (Pa. 2021) ( emphasis in original) 

(internal quotations and citation omitted). 

Pursuant to the Pennsylvania dictates set forth in Johnson and Green, this 

Court must first determine for what items probable cause exists before the question 

of overbreadth can be assessed. Moreover, the Supreme Court has made clear a 

requirement that the parties include a probable cause analysis in any brief filed 

after December 22, 2021 raising an overbreadth issue. Specifically, that directive 

was stated as follows: 

It is worth emphasizing at this point, that in Johnson, a point of 

contention was the fact that no party affirmatively argued or briefed 

probable cause. Notwithstanding this Court's explicit pronouncement 

that probable cause "is one of [the] main tenets" of an overbreadth 

Page42 of56 
analysis and that the two concepts could not be "meaningfully 

untangle[d]," Johnson, 240 A.3d 575, 586, Appellant forgoes a 

complete probable cause analysis in his brief . ..... [G]oing forward, 

litigants should include analysis of any alleged insufficient 

showing of probable cause as it relates to their overbreadth 

challenge. 

Commonwealth v. Green, 265 A.3d 541, 551 (f.n. 5) (Pa. 2021) (emphasis 

added). The accepted definition of probable cause and the deferential standard by 

which a reviewing court must analyze the issuing authority's initial determination 

of probable cause were summarized in Johnson. 

Probable cause, as we have said many times over the years, is 

determined based on the totality of the circumstances. Thus, the task 

of the issuing [authority] is simply to make a practical, common-sense 

decision whether, given all the circumstances set forth in the affidavit 

before him, including the veracity and basis of knowledge of persons 

supplying hearsay information, there is a fair probability that 

contraband or evidence of a crime will be found in a particular place. 

A reviewing court's duty, in turn, is merely to ensure the issuing 

authority had a substantial basis for concluding that probable cause 

existed. In so doing, the reviewing court must accord deference to the 

issuing authority's probable cause determination, and must view the 

information offered to establish probable cause in a common-sense, 

non-technical manner. 

Commonwealth v. Johnson, 240 A.3d at 585 (internal quotations and citation 

omitted). Also, "[P]robable cause is based on a probability, not a prima facie case 

of criminal activity." Commonwealth v. Green, 265 A.3d 541,551 (Pa. 2021). 

In Johnson, police officers responded to a shots fired call at an apartment. 

They entered the home and secured the five individuals, including Johnson, who 

Page 43 of 56 
were in the apartment. Heroin and two guns were found in plain view. In a search 

incident to the arrest of the Appellant, two cell phones were seized. More than 

"four months after the initial search and discovery of this sizable stash of drugs and 

firearms in the apartment, the officers sought and obtained a search warrant for 

appellant's two cell phones. Commonwealth v. Johnson, 240 A.3d at 580. 

In Johnson, the Court reversed the denial of suppression, concluding that 

the law requires "some specific nexus between the items to be [ searched and] 

seized and the suspected crime committed" and a "review of the affidavit of 

probable cause reveals no such link." Id. at 587-88 (quotation and citation 

omitted). 

In part, the affidavit of probable cause in Johnson provided that: 

From previous drug investigations your affiants have been involved 

with, your Affiants have become aware that persons involved in the 

trafficking of controlled substances regularly use cellular telephones 

to accomplish their trafficking activities. These persons additionally 

maintain within their cellular telephones, information that includes the 

telephone numbers of persons to whom they distribute controlled 

substances to [sic], the telephone numbers of persons from whom they 

obtain controlled substances to distribute, abbreviations or acronyms 

for the persons to whom they distribute controlled substances to [sic], 

the persons from whom they obtain controlled substances to 

distribute, and pictures of controlled substances, firearms, and 

quantities of monies. 

Under the facts of that case, the Supreme Court ascribed no value to the 

affiant's specialized knowledge that drug traffickers often use cell phones to 

conduct their business because the affidavit in that case was found to be "entirely 

Page 44 of 56 
bereft of any facts tying the affiants' expert opinion to appellant specifically." Id. 

at 588. The Supreme Court acknowledged that an affiant's specialized knowledge 

and expertise may be relevant to establishing probable cause in some 

circumstances. Id. However, the Court indicated that in addition to the affiant's 

specialized knowledge and expertise, the affidavit of probable cause must contain 

"some link sufficient to connect the two." Id. The Court stated that "where law 

enforcement seeks to search a person's cell phone based on the person's mere 

proximity to illegal contraband, some link sufficient to connect the two must be 

provided in the affidavit of probable cause." Id. In that case where there was no 

evidence to establish anything more than that the Appellant was "merely present" 

at the residence when the cell phones were confiscated, the Supreme Court stated: 

Simply put, the affidavit of probable cause in this case provides little 

more than the bare fact that appellant was present in a place where 

illegal contraband happened to be found. That fact, in and of itself, 

cannot supply probable cause for a search of appellant's cell phone. 

Id. 

Problematic for the Johnson court was the fact that the affidavit lacked 

"evidence demonstrating" more extensive information regarding some evidence of 

a nexus to the crime under investigation and the item to be searched. Id. at 588. In 

the instant case, if the affidavit is reviewed with the deference that this Court must 

give to the issuing authority, the decision of the original issuing authority which 

found the necessary quantum of "evidence demonstrating" a sufficient nexus of the 

Page 45 of 56 
facts in the affidavit and the opinions based on the experience of Detective Young 

with the items to be searched will not be disturbed. 

Facts that the issuing authority could glean from the affidavit of probable 

cause distinguish this case from the situation that existed in Johnson, where the 

information in the affidavit of probable cause did nothing more than establish what 

the Supreme Court called a "bare fact." Detective Young's affidavit points out that 

the Appellant was identified as the shooter in a homicide, that the homicide and 

robbery in the house were committed by two people, including the Appellant, and, 

that a third likely participant included the getaway driver of the Jeep in which the 

assailants fled after the shooting. The affidavit also references a potential murder 

for hire scheme, where the person soliciting the murder utilized his phone and/or 

Snapchat for the potential solicitation of the murder that the Appellant is alleged to 

have committed. The affidavit pointed out locations where the getaway vehicle 

was seen and at what approximate times that vehicle would have been located in 

the exact areas identified on the video where the vehicle was observed. The 

affidavit also references a Facebook account of the Appellant, which presumably 

could be commonly utilized and accessed from a cell phone. The affiant also stated 

that based on Detective Youngs' "training and experience it was known that 

criminals commonly use cell phones to coordinate and communicate before, during 

Page46 of56 
and after the commission of criminal activity." Search Warrant Affidavit of 

Probable Cause, p. 4. 

As stated by the Supreme Court, "simply put," these facts, including the 

professional opinion and the experience of the affiant, Detective Young, that the 

offenders in this complicated potential murder for hire scheme were likely 

coordinating efforts via cell phone placed the issuing authority in a position to 

make a practical, common-sense decision that there was a fair probability that 

contraband or evidence of a crime will be found on the Appellant's cell phone. 

The suppression court, as a reviewing court, was required to accord deference to 

the issuing authority's probable cause determination and the suppression court 

viewed the information offered to establish probable cause in a common-sense, 

non-technical manner. It was held that such an analysis led to the conclusion that 

the search warrant for the cell phone was supported by probable cause. 

The training and experience of an affiant can be a relevant factor for 

probable cause under the totality of the circumstances. Commonwealth v. 

Nicholson, 262 A.3d 1276 (Pa. Super. 2021). However, "there must be something 

in the affidavit that links the place to be searched directly to the criminal activity." 

Id. In Nicholson, the affidavit of probable cause contained an assertion of the 

affiant that drugs would be found in the home of the Appellant based on the 

Page 47 of 56 
affiant' s "professional experience" that drug dealers typically store drugs, weapons 

and other contraband in their homes." Id. at 1281. 

The Superior Court affirmed the trial court's suppression of evidence by 

holding that merely referring to "professional experience" as to the places that 

drugs could be stored could be used to justify a search of any place where drugs 

could possibly be kept." Id. The lack of any facts to establish a nexus to the home 

of the Appellant was cited as a factor that led to the conclusion that the police 

officer's professional experience was not probative of the probable cause 

determination in Nicholson. Id. The affiant's general statement of the plethora of 

places that drugs could be stored was the only link in that case to support the 

request to search the home of the Appellant. There was no factual nexus that could 

connect the home to the criminal activity in that case. The instant case differs 

because of the facts cited above that could have been considered by the issuing 

authority to support a probable cause determination. Once again, given the 

deferential standard of the suppression court as a reviewing court, the decision of 

Nicholson does not control the outcome of the suppression motion filed by the 

Appellant. 

The Pennsylvania Supreme Court approved a search warrant that authorized 

law enforcement to seize all digital devices connected to an IP address that it 

indicated would "later [be] searched for evidence relating to the possession and/or 

Page 48 of 56 
distribution of child pornography[.]" The scope of the search in that case allowed 

the investigators to search "any and all devices" found in the Appellant's home, 

including computers and all cell phones, and, significantly, all of the content of 

those items without including a restriction to "include a specific date, type of file, 

or program in order to satisfy the requirement to describe the items as nearly as 

may be." Commonwealth v. Green, 265 A.3d 541, 555 (Pa. 2021). In Green, the 

Supreme Court approved a broad authorization to seize all devices and search 

through all data on the digital devices for evidence of possession and distribution 

of child pornography by concluding that such a search in that case complied with 

the Article I, Section 8 requirement that the warrant must describe the place to be 

searched and the things to be seized as nearly as may be. Id. at 555. 

Because of the affiant's allegation in the affidavit of probable cause that the 

pornographic images could be hidden within an electronic device, the Supreme 

Court held that "just as with a search of a home and other spaces where an 

individual maintains a privacy interest, if there is probable cause that evidence of a 

crime will be found within an electronic device, that evidence should not be 

shielded simply because a Appellant comingles it with personal information in a 

digital space with vast storage capacity. This is particularly so when, like [in that 

case], the nature of the crime is electronic or internet based." Id. 

Page 49 of56 
Commonwealth v. Dougalewicz, 113 AJd 817, 821, 828 (Pa. Super. 

2015), is a case where the Superior Court found that a search warrant seeking 

"[a]ny and all text messages, picture mail, and phone calls to and from" the 

Appellant's phone was not overly broad because 

the affidavit of probable cause specifically limited the time frame for the phone 

records to be searched and "sufficiently identified and limited the items to be 

searched and seized .... ". Similarly, in the instant case, limits on the extent of the 

information to be released pursuant to the search warrant are imposed by the date 

restrictions of the "[i]tems to be searched" part of the search warrant and by the 

factual limitations set forth in the search warrant affidavit of probable cause. 

If the terms of the affidavit of probable cause are read as limiting the scope 

of the search, then, as in Green, the "warrant only allowed the officers to search 

for evidence of that particular crime. They could not indiscriminately rummage 

through any and all files as [Appellant] suggests, but rather could only conduct a 

digital forensic search ... for evidence relating to the crimes under investigation." 

Commonwealth v. Green, 265 A.3d 541, 555 (Pa. 2021 ). In Green, even though 

the warrant authorized the search of all of the information in multiple, unidentified 

devices, the Pennsylvania Supreme Court was "satisfied that the limiting language 

provided in the warrant and supported by the affidavit of probable cause was 

specific enough that rummaging would not be permitted, .... " and the Court was 

Page 50 of 56 
further satisfied that the warrant would not "be used as a general investigatory 

tool." Id. Therefore, in that situation, the Supreme Court held that the "warrant 

sufficiently described the items for which there was probable cause, it was not 

overbroad." Id. That decision controls the outcome of the overbroad and lack of 

particularity claims as they relate to the cell phone search warrant in this case. 

Therefore, the Motion to Suppress the Cell Phone data was denied and the 

request to seize the items requested on pages one (1) and six (6) of the search 

warrant for the cell phone were found not to be in violation of the particularity 

requirement of Article 1 Section 8 of the Pennsylvania Constitution or the 4 

Amendment to the United States Constitution and the Appellant's claims are 

without merit. 

TESTIMONY BY SHERIFF DOUG HANNA REGARDING 

APPELLANT'S EL CHAPO STATEMENT WAS ADMISSIBLE 

The Appellant argues that the Trial Court abused its discretion when it 

permitted testimony from Deputy Doug Hanna regarding a statement made by the 

Appellant during transportation to Beaver County Jail. The statement in question 

involves the Appellant stating to Hanna that he was being treated like El Chapo 

because he had two bodies. 

The Supreme Court of Pennsylvania has stated "[t]he admissibility of 

evidence is to the discretion of the trial court and only a showing of an abuse of 

that discretion, and resulting prejudice, constitutes reversible error." Sanchez, 36 

Page 51 of 56 
A.3d at 48. An abuse of discretion will only be found "when the law is overridden 

or misapplied, or the judgment exercised is manifestly unreasonable, or the result 

of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record." 

Commonwealth v. Flor, 66 Pa. 384,408,998 A.2d 606,620 (201). 

In the court's reasoning when ruling on the admissibility of Deputy Hanna's 

testimony, the court referenced previous Pennsylvania case law, most notably 

Commonwealth v. Elliot, 140 A.537, 538-39 (Pa. 1928): 

"An 'admission' as applied to criminal cases has been defined as a 

'statement by Appellant of a fact or facts pertinent to the issues, and 

tending, in connection with proof of other facts or circumstances, to 

prove the guilt, but which is, of itself, insufficient to authorize 

conviction; it is a circumstance which requires the aid of further 

testimony [to] generate a reasonable conclusion of guilt.' Voluntary 

statements made by an Appellant, although they may not amount to a 

confession of guilt, can be used against him if they tend to explain 

issues on trial." 

In Commonwealth v. Edwards, 178 A.20, 22 (Pa. 1935), the Pennsylvania 

Supreme Court found no error in allowing "evidence of testimony by Warden 

Healey of the county jail and Dr. Freeman, the jail physician, concerning 

conversations had by them with appellant, after his arrest, in which Edwards 

admitted his guilt." It does not appear that the actual substance of Edwards' 

conversations are detailed. Nevertheless, the Supreme Court concluded that a 

Page 52 of56 
cautionary instruction to the jury, that they may attach whatever weight to an 

Appellant's admission can" amply protect Appellant's rights . »157 

The trial court ruled that this statement made by Appellant during transport 

was admissible as a hearsay exception, a Statement Against Interest in accordance 

to Pa.R.E. 804(b)(3). The Pennsylvania Rules of Evidence provide that a statement 

against interest is a statement that: 

[A] reasonable person in the declarant's position would have made 

only if the person believed it to be true because, when made, it was so 

contrary to the declarant's proprietary or pecuniary interest or had so 

great a tendency to invalidate the declarant's claim against someone 

else or to expose the declarant to civil or criminal liability; and is 

supported by corroborating circumstances that clearly indicate its 

trustworthiness, if it is offered in a criminal case as one that tends to 

expose the declarant to criminal liability. 

The Pennsylvania Evidence Rule for a Statement Against Interest is identical 

to F.R.E. 804(b)(3). In Williamson v. United States, 512 U.S. 594,599, 114 S. Ct. 

2431, 2435 (1994), the United States Supreme Court noted that the Rule 804(b)(3) 

was "founded on the commonsense notion that reasonable people, even reasonable 

people who are not especially honest, tend not to make self-inculpatory statements 

unless they believe them to be true." A statement is sufficiently inculpatory to fall 

under this exception "if it would be probative at trial against the declarant." United 

States v. Volpendesto, 746 F.3d 273 (7th Cir. 2014). Further, the United States 

Supreme Court held in California v. Greene, that the admission of statements of a 

157 Id. at 23. Sec also Commonwealth v. Bracey, 662 A.2d 1062, 1068-1069, including footnote 9 (Pa. 1995). 

Page 53 of56 
witness as substantive evidence against a Appellant did not violate the 

Confrontation Clause of the Sixth Amendment.58 

In the instant case, the Trial Court did not abuse its discretion by allowing 

testimony of the Deputy Hanna. The statement showed that the Appellant was 

under the impression that, by being transported back to Beaver County, he was 

being treated like a leader of an international crime cartel because "he had two 

bodies." The Jury was instructed to not consider the statement as evidence against 

the Appellant unless they found beyond a reasonable doubt that the alleged crimes 

had been committed. 

Even if admittance of the statement was improper, the Appellant's 

conviction was not based exclusively on Deputy Hanna's testimony. There was 

overwhelming and sufficient evidence on the record for the jury to find the 

Appellant guilty beyond a reasonable doubt. The jury would have yielded the same 

result had the Deputy Hanna's testimony not been admitted. For example, the 

surviving victim, Alessandra Briggs, identified the Appellant as the man who 

entered her residence and shot her and Parker. Additionally, Michael Motton 

testified that he was with the Appellant at significant points on the night of the 

incident. Motton testified that had been instructed by the Appellant to stay in the 

area while he "hit a lick," Motton subsequently observed the Appellant enter the 

1s8 California v. Green, 399 U.S. 149 (1970). 

Page 54 of 56 
yard of the Premises and had picked the Appellant up in close proximity to the 

crime in question. 

In light of the limiting jury instruction provided with regard to the statement, 

and the overwhelming evidence presented at trial, the testimony of Deputy Hanna 

was permissible as a statement against interest. 

CONCLUSION 

For the reasons stated above, this Court respectfully submits that the 

allegations of error in this case are without merit and therefore this Court's holding 

resulting from a deemed denial should be affirmed. The Beaver County Clerk of 

Courts is hereby directed to file the record of these proceedings with the Superior 

Court of Pennsylvania, an appropriate order shall follow. 

Respectfully Submitted, 

, 

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Page 55 of 56 
IN THE COURT OF COMMON PLEAS OF BEAVER COUNTY, 

PENNSYLVANIA 

CRIMINAL DIVISION 

COMMONWEALTH OF 

PENNSYLVANIA 

vs. 

JOSHUA LEE DIEGDIO 

ORDER 

CP-04-CR-001795-2020 

866 WDA2022 

AND NOW, this 7" day of November, 2022, it appearing that the defendant 

has filed a Notice of Appeal in the above-captioned case and it further appearing 

that the accompanying Memorandum Opinion satisfies the requirements of Pa. 

R.A.P. 1925(a), it is ORDERED that the Clerk of the Criminal Court Division of 

the Court of Common Pleas of Beaver County transmit the record in the above 

captioned case to the Superior Court forthwith. 

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Mitchell P. Shaben, Judge