J-S30011-20 & J-S30012-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

KASHIF OMAR ELLIS

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1577 WDA 2019

Appeal from the Judgment of Sentence Entered April 16, 2019

In the Court of Common Pleas of Blair County Criminal Division at No(s):

CP-07-CR-0001880-2017

COMMONWEALTH OF PENNSYLVANIA

v.

KASHIF ELLIS

Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1580 WDA 2019

Appeal from the Judgment of Sentence Entered April 16, 2019

In the Court of Common Pleas of Blair County Criminal Division at No(s):

CP-07-CR-0000773-2018

BEFORE: MURRAY, J., McLAUGHLIN, J., and STEVENS, P.J.E.* MEMORANDUM BY MURRAY, J.: FILED AUGUST 11, 2020

In these consolidated appeals, Kashif Omar Ellis (Appellant) appeals

from the judgment of sentence imposed after a jury convicted him of first- degree murder, robbery, criminal conspiracy, aggravated assault, burglary,

____________________________________________

* Former Justice specially assigned to the Superior Court.
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criminal trespass, recklessly endangering another person, discharging a

firearm into an occupied structure, criminal use of a communication facility,

and possession with intent to deliver a controlled substance (collectively, “the

murder charges”).1 The jury also convicted Appellant, in a separate case, of

intimidation of a witness/victim, and retaliation against a witness/victim2

(collectively, “the intimidation charges”). We affirm.

On July 13, 2013, Appellant orchestrated a robbery with his then- paramour and co-defendant, Taylor Griffith (Griffith), and Quasim Green

(Green). At Appellant’s direction, Griffith visited the residence of the victim, Stephen Lamont Hackney (Decedent). While inside the residence, Griffith

texted Appellant, informing him that she saw large quantities of narcotics and

U.S. currency, and that the Decedent was alone and unarmed. Griffith, who

was a Commonwealth witness at trial, testified that she unlocked the back

door to the Decedent’s residence so that Appellant and Green could enter. Appellant barged into the Decedent’s bedroom and shot him three times, resulting in his death. Appellant and his co-defendants then stole the cash

and narcotics and fled.

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1 18 Pa.C.S.A. §§ 2502(a), 3701(a)(1)(i), 903(a), 2702(a)(1) and (4),

3502(a)(1), 3503(a)(1)(i), 2705, 2707.1(a), 7512(a); 35 P.S. § 780- 113(a)(30).

2 18 Pa.C.S.A. §§ 4952(a)(1), 4953(a).
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The police responded to the scene and discovered the Decedent’s body,

as well as large quantities of cash nearby. After securing and searching the

surrounding area, police seized a Samsung cellphone (Samsung phone), which

had been discarded in the alley behind the Decedent’s residence. The police

obtained a search warrant for the digital contents of the Samsung phone.

Forensic analysis of the Samsung phone revealed that it belonged to Green.

The investigation into the murder went on for several years. During the

investigation, the police utilized a software geo-location mapping program

called CellHawk.3 The investigating officers accessed CellHawk geo-location

data for two separate cell phones that, police determined, were respectively

associated with Appellant and Griffith. The data showed these phones in the

general area of the Decedent’s residence on the night of the murder. It further

showed that both Appellant and Griffith’s phones were in the Philadelphia area

shortly after the murder, which corroborated Griffith’s account. The police

obtained the CellHawk evidence, with respect to both Appellant and Griffith’s

phones, via a court order.

Notably, one of the police officers involved in the investigation was

former Altoona police detective Matthew Starr (Officer Starr). After most of

____________________________________________

3 This program collects historical data from cellular tower “pings” to locate

cellphone users on a given date and time.
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the investigation had occurred, Officer Starr was terminated from the police

force and convicted of fraud in an unrelated matter.4

In July 2017, the Commonwealth filed the murder charges against

Appellant at CR 1880-2017 (No. 1880-2017). The Commonwealth

subsequently initiated a second case against Appellant in May 2018, docketed

at CR 773-2018 (No. 773-2018), charging him with the intimidation charges.5

The trial court joined the two cases.

Appellant subsequently filed an omnibus pre-trial motion (OPT motion). The OPT motion sought, inter alia, suppression of (1) Appellant’s CellHawk

historical cell site location information; and (2) recordings of inculpatory

telephone calls and letters that Appellant made while incarcerated pending

trial (“the prison calls evidence.”). The trial court conducted two hearings, after which it denied the OPT motion. In November 2018, Appellant filed a motion (the recusal motion), asserting that the entire bench of Blair County, as well as the District

Attorney’s Office, should be disqualified from participating in his trial. He

argued that there was a conflict of interest because Griffith was the daughter

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4 Neither party called Officer Starr as a witness at Appellant’s trial.

5 These charges arose out of Appellant’s threatening to kill Griffith because

she agreed to testify as a Commonwealth witness against Appellant in

exchange for pleading guilty to third-degree murder, and receiving a sentence

of 15 to 30 years in prison.
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of the Blair County Prothonotary/Clerk of Courts, Robin Patton (Prothonotary

Patton). The trial court denied the recusal motion.

On January 3, 2019, four days prior to jury selection, Appellant filed a

motion for a continuance, which the trial court denied. Jury selection

commenced on January 7, 2019. Appellant was shackled during jury selection

and trial. For this reason, Appellant filed a motion for a mistrial, which the

trial court denied. The jury convicted Appellant of the murder charges and

the intimidation charges.

On April 16, 2019, the trial court sentenced Appellant, at No. 1880- 2017, to life in prison without the possibility of parole. At No. 773-2018, the

court imposed an aggregate sentence of 5 to 10 years in prison, to run

consecutively to the sentence at No. 1880-2017.

On April 26, 2019, Appellant filed a timely post-sentence motion for

reconsideration of sentence/new trial. He challenged the trial court’s denial

of his claims raised in the OPT motion and recusal motion. He further asserted

that he should not have been shackled during jury selection, and that the

Commonwealth committed a discovery violation by failing to provide the

defense with certain witness statements prior to trial. The trial court denied

the post-sentence motion by an order and opinion entered on December 2,

2019.

Appellant timely filed notices of appeal at each docket number, followed

by court-ordered concise statements of errors complained of on appeal,
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pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). This Court

consolidated the appeals sua sponte. In the appeal at No. 1880-2017, Appellant presents nine issues for

review:

I. WAS [APPELLANT] DENIED HIS RIGHT TO DUE PROCESS

AND A FAIR AND IMPARTIAL TRIAL WHEN HE WAS

PARADED IN FRONT OF THE JURY AT JURY SELECTION IN

SHACKLES?

II. WAS [APPELLANT] DENIED DUE PROCESS AND A RIGHT TO

A FAIR AND IMPARTIAL TRIAL WHEN THE TRIAL COURT

REFUSED TO SUPPRESS THE INTERCEPTION OF

[APPELLANT’S] PHONE RECORDS AND WRITTEN

COMMUNICATIONS OBTAINED FROM THE STATE

CORRECTIONAL INSTITUTIONS OF GRATERFORD AND

HUNTINGDON WITHOUT A WARRANT?

III. DID THE COMMONWEALTH COMMIT BRADY[6] VIOLATIONS

IN FAILING TO TIMELY DISCLOSE THE STATEMENT OF

ASHLEY BRUBAKER AND TO TIMELY REVEAL THE

COMMONWEALTH’S KNOWLEDGE OF THE

UNTRUTHFULNESS OF THE STATEMENT OF POTENTIAL

COMMONWEALTH WITNESS KELSEY BERGMAN?

IV. DID THE COMMONWEALTH VIOLATE THE RULES OF

DISCOVERY BY FAILING TO PROVIDE TIMELY NOTICE OF

THE TESTIMONY OF ASHLEY BRUBAKER AND THE

UNTRUTHFULNESS OF THE STATEMENT OF POTENTIAL

COMMONWEALTH WITNESS KELSEY BERGMAN[,] ALONG

WITH FAILING TO PROVIDE NOTICE OF THE EXPERT

TESTIMONY OF AGENT THOMAS MOORE OF THE ATTORNEY

GENERAL’S OFFICE[,] ALL OF WHICH INFORMATION

SHOULD HAVE BEEN REVEALED IN DISCOVERY[?]

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6 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that “the

suppression by the prosecution of evidence favorable to an accused upon

request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”).
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V. DID THE COURT VIOLATE [APPELLANT’S] RIGHT UNDER

THE CONFRONTATION CLAUSE OF BOTH THE UNITED

STATES CONSTITUTION AND THE PENNSYLVANIA

CONSTITUTION TO CROSS-EXAMINE TRAVIS DENNY[,]

WITH RESPECT TO A LETTER SUBMITTED TO HIS ATTORNEY

BY HIS GIRLFRIEND SEEKING A REDUCTION IN THE

SENTENCE HE WAS SERVING?

VI. DID THE TRIAL COURT ERR IN DENYING A HEARING ON

[APPELLANT’S] FRANKS[ V. DELAWARE, 438 U.S. 154

(1978)] MOTION WITH RESPECT TO THE SEARCH

WARRANTS BASED UPON THE STATEMENTS AND

INFORMATION PROVIDED BY AN UNRELIABLE WITNESS[,]

AS WELL AS THE ACTIONS AND ACTIVITY FROM [OFFICER]

STARR WHO WAS SUBSEQUENTLY CONVICTED AND

SENTENCED ON CHARGES INVOLVING FRAUD?

VII. DID THE COURT DENY [APPELLANT’S] RIGHT TO A FAIR

AND IMPARTIAL TRIAL BY REFUSING TO RECUSE ITSELF

AND/OR RECUSE THE DISTRICT ATTORNEY OF BLAIR

COUNTY WHEN HIS CO-DEFENDANT, TAYLOR GRIFFITH[,]

AND MAIN COMMONWEALTH WITNESS WAS THE

DAUGHTER OF THE PROTHONOTARY AND CLERK OF COURT

OF BLAIR COUNTY?

VIII. WAS [APPELLANT] IMPROPERLY DENIED HIS REQUEST FOR

A CONTINUANCE FILED WITH THE COURT ON JANUARY 3,

2019 AND DENIED BY ORDER OF COURT DATED JANUARY

4, 2019 FILED ON JANUARY 7, 2019[?]

IX. WAS [APPELLANT] DENIED HIS RIGHT TO DUE PROCESS

AND A FAIR AND IMPARTIAL TRIAL WHEN THE

COMMONWEALTH OBTAINED EVIDENCE AS TO PINGING

[O]F ... [APPELLANT’S] CELL PHONE THROUGH A COURT

ORDER INSTEAD OF PROPERLY OBTAINING A WARRANT

FOR SAID EVIDENCE AS REQUIRED BY CARPENTER V. UNITED STATES, 585 U.S. ___, 138 [S. CT.] 2206, 201

LAWYERS EDITION 2D. 507[] (2018)[?]

Appellant’s Brief (1577 WDA 2019) at 6-9 (footnote added, issues ordered).
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In the appeal at No. 773-2018, Appellant raises three issues. These

issues are identical to and correspond with three of the issues that Appellant

presents above; namely, issues 1, 7 and 8.7 See Appellant’s Brief (1580 WDA

2019) at 6. Accordingly, we will address those issues together. In his first issue, Appellant argues that he was deprived of his right to a

fair trial, and his presumption of innocence, where he was “paraded” in front

of the jury while restrained with shackles. Appellant’s Brief at 19-24.

Appellant contends that the trial court thus erred in denying his motion for a

mistrial. Id. at 19.

It is well settled under common law and the Constitution

that, part and parcel of the concept of a fair trial, is a defendant’s

right to be permitted to appear free from shackles or other

physical restraint – this right, however, is not absolute.

Commonwealth v. Jasper, 610 A.2d 949, 955 (Pa. 1992).

Circumstances that have justified the use of restraint include

where a defendant disrupts the proceedings, where there is a

danger of escape, and where the court believes that an

unrestrained defendant may attack others. Id. Proper security

measures are within the sound discretion of the trial court, and,

thus, will not be disturbed absent an abuse of that discretion.

Commonwealth v. Patterson, 308 A.2d 90, 94 (Pa. 1973).

In the Interest of F.C. III, 2 A.3d 1201, 1222 (Pa. 2010) (citations

modified). Additionally, “where the trial evidence shows that a violent

defendant was incarcerated at the time of trial, no prejudice occurs even when

restraints are visible to the jury.” Jasper, 610 A.2d at 955.

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7 Citations to Appellant’s arguments for these issues reference Appellant’s

Brief at 1577 WDA 2019.
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The trial court rejected this issue on the basis that:

(1) Appellant failed to establish that the jury actually saw him in

restraints at any point;

(2) Even if the restraints were visible, the jury already knew that

Appellant was incarcerated by other information, and thus, he

suffered no prejudice; and

(3) In light of Appellant’s numerous misconducts in pre-trial

incarceration, his threatening to kill a Commonwealth witness,

and his unruly courtroom behavior, it was necessary to place him

in restraints to ensure safety and courtroom order.8

See Opinion and Order, 9/20/19, at 20-22. Upon review, we incorporate

further the trial court’s reasoning, which is supported by the law and the

record. See id. In so doing, we note that during pre-trial proceedings, the

trial court expressly warned Appellant that his threatening and unruly conduct

could result in him being restrained during trial. See N.T., 3/23/18, at 7;

N.T., 7/30/18, at 35-36. In addition, during jury selection, Appellant was

dressed in civilian clothing, his right hand was free, and the defense table was

equipped with a “skirt”, which blocked the jury from seeing anything below

Appellant’s waist. N.T., 1/7/19, at 20. Finally, the court stated that it would

have been willing to issue a curative instruction to the jury concerning

restraints and/or Appellant’s incarceration, but defense counsel did not

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8 While Appellant was incarcerated in the Blair County Prison awaiting trial, he

threatened to harm Griffith and prison personnel. In pre-trial proceedings,

the trial court warned Appellant that if he continued this conduct, the court

would have no choice but to shackle him in further court proceedings.
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request an instruction. See id. at 10-15. We therefore find no merit to

Appellant’s first issue.

In his second issue, Appellant argues that the trial court erred by

depriving him of a fair trial when it refused to suppress the prison calls

evidence; Appellant claims the evidence was the product of an unlawful search

and seizure. See Appellant’s Brief at 27-31.

The trial court likewise addressed this claim in its opinion, summarizing

the relevant law concerning the admissibility of such evidence, and

determining that denial of the suppression request was proper because:

(1) The court initially denied Appellant’s motion to suppress the

evidence “without prejudice” to Appellant to renew and further

develop the claim, but he never did so;

(2) Appellant never objected to the admission of this evidence at

trial; indeed, he actually consented to the entire recording of

Appellant’s calls from prison being played to the jury; and

(3) Appellant failed to articulate any reasonable expectation of

privacy that he had concerning these communications.

See Opinion and Order, 9/20/19, at 16-19. Again, the court’s reasoning is

supported by the record and law, and we agree with its conclusion. We further

note that the Commonwealth’s interception of Appellant’s prison phone calls

was permitted under Pennsylvania’s Wiretap Act, which provides in relevant

part that it is not unlawful for:

an investigative officer, a law enforcement officer or employees of

the Department of Corrections for State correctional facilities to

intercept, record, monitor or divulge any telephone calls from or

to an inmate in a facility [provided that delineated conditions are

met].
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18 Pa.C.S.A. § 5704(13). Appellant, as a state inmate, was given an

automated warning that any inmate telephone call could be monitored or

recorded. Accordingly, we reject Appellant’s second issue. See id.

We address Appellant’s third and fourth issues together because they

are related. Appellant claims the Commonwealth violated Brady, supra, by

failing to alert him to material untruths in the police statement given by

“proposed” Commonwealth witness Kelsey Bergman (Bergman), and to give

him advance notice of her testimony.9 See Appellant’s Brief at 31-34; 37-38. Appellant argues that this information would have assisted his defense theory

and provided him an opportunity to undermine the credibility of Griffith’s

testimony. Id. at 33-34. Appellant further contends that the Commonwealth

committed a second Brady violation concerning Ashley Brubaker (Brubaker),

who testified as a Commonwealth witness and spoke with police on the night

of the murder. Id. at 34, 37-38. Appellant’s claim presents a question of law; our standard of review is

de novo and our scope of review is plenary. Commonwealth v. Mullins, 918

A.2d 82, 84 (Pa. 2007). To prove a Brady violation, a defendant must show:

“(1) the prosecutor has suppressed evidence; (2) the evidence, whether

exculpatory or impeaching, is helpful to the defendant; and (3) the

suppression prejudiced the defendant.” Commonwealth v. Tharp, 101 A.3d

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9 Neither party called Bergman as a witness at trial.
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736, 747 (Pa. 2014) (citation omitted). “Conversely, the mere possibility that

an item of undisclosed information might have helped the defense, or might

have affected the outcome of the trial does not establish materiality in the

constitutional sense.” Commonwealth v. Dennis, 17 A.3d 297, 308 (Pa.

2011) (citation omitted). The burden of proof is on the defendant to

demonstrate that the Commonwealth withheld or suppressed material

evidence. Commonwealth v. Cam Ly, 980 A.2d 61, 75 (Pa. 2009); see

also id. (stating that the “prosecutor is not required to deliver his entire file

to defense counsel, but only to disclose evidence favorable to the accused

that, if suppressed, would deprive the defendant of a fair trial”) (citation

omitted).

Appellant’s claims are unavailing. Concerning Bergman, the

Commonwealth never called her to testify. Appellant had an opportunity to

present her testimony; however, he declined to do so. Moreover, Appellant

fails to identify Bergman’s alleged “untruths,” and advances only a general

claim of a Brady violation. See Commonwealth v. Tielsch, 934 A.2d 81,

93 (Pa. Super. 2007) (holding that undeveloped claims will not be considered

on appeal). Finally, the record supports the Commonwealth’s response that

it: (1) provided Appellant with Bergman’s police statement during discovery;

and (2) spoke with Appellant’s defense counsel prior to trial and pointed out

the discrepancies in Bergman’s statements. See Response to Post-Sentence

Motion, 8/27/19, at 10; see also id. at 11 (asserting that the inconsistencies
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in Bergman’s statements had nothing to do with Appellant because she was

not present at the Decedent’s residence when the murder occurred).

Regarding Appellant’s second Brady claim implicating Brubaker,

Appellant raises this claim for the first time on appeal; accordingly, it is

waived. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the

first time on appeal); see also Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1288 (Pa. Super. 2004) (en banc) (“[a] party cannot rectify

the failure to preserve an issue by proffering it in response to a Rule 1925(b)

order.”) (citation omitted). Additionally, Appellant’s counsel did not object to

the introduction of Brubaker’s testimony or assert any unfair surprise, even

after an offer of proof by the prosecutor. See N.T., 1/29/19, at 138-39.10 We

discern no record support for Appellant’s claim that the Commonwealth

possessed materials documenting Brubaker’s statements that were not

provided in discovery.

Finally, in connection with Appellant’s fourth issue, he merely asserts,

in two sentences, that the Commonwealth committed a third Brady violation

by failing to provide the defense advance notice of the testimony of Agent

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10 The record reflects that there was no formal police interview of Brubaker

until the time of trial, on January 29, 2019, and defense counsel thoroughly

cross-examined Brubaker about her statements. See N.T., 1/29/19, at 138- 39, 156-63.
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Thomas Moore (Agent Moore) of the Attorney General’s Office.11 Appellant’s

Brief at 38. However, because Appellant has failed to develop this claim in

any meaningful fashion, we are precluded from considering it. See Tielsch, supra; see also Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super.

2014) (stating that mere issue spotting without analysis or legal citation to

support an assertion precludes appellate review of a matter).12 Appellant’s

third and fourth issues do not merit relief.

In his fifth issue, Appellant asserts that the trial court committed

reversible error by precluding his counsel from cross-examining

Commonwealth witness Travis Denny (Denny), who was Appellant’s former

cellmate.13 See Appellant’s Brief at 38-41. Specifically, Appellant argues that

he was deprived of his right to confrontation concerning a certain letter that

Denny allegedly had “knowledge of”;

14 the letter purportedly expressed

____________________________________________

11 The Commonwealth presented Agent Moore as an expert witness regarding

the meaning of certain phrases Appellant used in telephone calls he placed

while incarcerated.

12 Even if Appellant had properly developed this claim, we would have

concluded that it lacks merit for the reasons set forth in the trial court’s

opinion. See Opinion and Order, 12/2/19, at 19-20 (stating that Agent

Moore’s expert testimony was not a surprise to the defense where the

Commonwealth filed of record a document that outlined his testimony). 13 Denny testified that he was incarcerated with Appellant in 2015, when

Appellant confessed to him that he shot someone named Steve and stole his

money. 14 Denny’s girlfriend authored this letter and mailed it to Denny’s attorney.
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Denny’s request for a reduced sentence in exchange for his testimony at

Appellant’s trial. See id. at 38, 40.

The standard of review applicable to this question of law is de novo. Commonwealth v. Tejada, 161 A.3d 313, 317 (Pa. Super. 2017). The trial

court has once again capably addressed Appellant’s issue, citing applicable

law, and determining that Appellant was not deprived of his right to confront

Denny where:

(1) Appellant’s counsel, in fact, attacked Denny’s credibility and

motive for testifying against Appellant;

(2) Denny did not author the letter; and

(3) The trial court did not bar Appellant from seeking to admit the

letter via the testimony of its author. See Opinion and Order, 9/20/19, at 23-25. The trial court’s reasoning is

supported by the record and law, and we agree with its determination; thus,

we affirm on this basis. See id.

In his sixth issue, Appellant contends that the trial court erred in denying

his request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154

(1978). Appellant argues that he should have been permitted to “explore the

issues which resulted in [Officer] Starr’s termination” and conviction, where

Officer Starr was the affiant of the affidavit of probable cause for the Samsung

cellphone belonging to co-defendant Green.15 Appellant’s Brief at 41-43.

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15 Appellant joined in Green’s omnibus pre-trial motion for a Franks hearing.
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The Pennsylvania Supreme Court summarized the United States

Supreme Court’s holding as follows:

[Franks] addressed whether a defendant has the right, under the

Fourth and Fourteenth Amendments, to challenge the truthfulness

of factual averments in an affidavit of probable cause. The Court

held where the defendant makes a substantial preliminary

showing the affiant knowingly and intentionally, or with reckless

disregard for the truth, included a false statement in the affidavit,

the Fourth Amendment requires a hearing be held at the

defendant’s request. The Court emphasized the defendant’s

attack on the affidavit must be “more than conclusory and must

be supported by more than a mere desire to cross-examine”; the

defendant must allege deliberate falsehood or reckless disregard

for the truth, accompanied by an offer of proof. If the defendant

meets these requirements, but the remainder of the affidavit’s

content is still sufficient to establish probable cause, no hearing is

required. If the affidavit’s remaining content is insufficient, a

hearing is held, at which the defendant must establish, by a

preponderance of the evidence, the allegation of perjury or

reckless disregard. If he meets this burden, the affidavit’s false

material is disregarded; if its remaining content is insufficient to

establish probable cause, the search warrant is voided, and the

fruits thereof are excluded.

Commonwealth v. James, 69 A.3d 180, 188 (Pa. 2013) (citations omitted).

Essentially, Appellant claims that because Officer Starr committed fraud

in an unrelated matter, he may have committed fraud in Appellant’s case.

This claim is unavailing. The Samsung phone belonged to Green, not

Appellant, and Appellant asserted no possessory interest in it. Appellant never

requested a Franks hearing relative to the probable cause affidavit.

Moreover, Appellant’s claim is undeveloped; he fails to reference any

statements in the affidavit he contends to be purportedly false. See James, supra (emphasizing that a defendant’s Franks attack on an affidavit must be
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more than conclusory, and that the defendant must put forth a “substantial” preliminary showing that the affidavit contains falsehoods); Commonwealth

v. Iannaccio, 480 A.2d 966, 969 n.1 (Pa. 1984) (holding that bald,

conclusory statements are insufficient to rise to the level of a substantial

preliminary showing under Franks).

In his seventh issue, Appellant argues that the trial court erred in

denying his recusal motion. See Appellant’s Brief at 45-52. Appellant

contends that the family relationship between Griffith and Prothonotary Patton

created a conflict of interest implicating the Blair County District Attorney’s

Office and the entire bench of Blair County. See id. According to Appellant,

Patton, who was not a witness at Appellant’s trial, had a “vested interest” in

the outcome. Id.

We review a claim challenging the denial of a recusal motion for an

abuse of discretion, and our review is “exceptionally deferential.” In re L.V., 209 A.3d 399, 415 (Pa. Super. 2019). We recognize that our trial judges are honorable, fair and

competent, and although we employ an abuse of discretion

standard, we do so recognizing that the judge himself is best

qualified to gauge his ability to preside impartially. A trial judge

should grant the motion to recuse only if a doubt exists as to his

or her ability to preside impartially or if impartiality can be

reasonably questioned. In order to prevail on a motion for

recusal, the party seeking recusal is required to produce evidence

establishing bias, prejudice or unfairness which raises a

substantial doubt as to the jurist’s ability to preside impartially.

Id. (citations omitted).
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We also review the denial of a motion to disqualify a prosecutor for an

abuse of discretion. Commonwealth v. Sims, 799 A.2d 853, 856 (Pa. Super.

2002). A district attorney should be disqualified where “an actual conflict of

interest affecting the prosecutor exists in the case.” Commonwealth v.

Eskridge, 604 A.2d 700, 702 (Pa. 1992). However, a mere allegation or

appearance of impropriety or animosity is insufficient to establish an actual

conflict of interest. Sims, 799 A.2d at 857.

In support of his claim, Appellant primarily relies on two decisions,

Eskridge, supra, and Comm. Ex rel. Amor v. Amor, 398 A.2d 173 (Pa.

Super. 1979) (en banc). See Appellant’s Brief at 49-51. However, both cases

are readily distinguishable. See Eskridge, 604 A.2d at 701-02 (holding that

an actual conflict barring prosecution existed where the county district

attorney’s law firm represented a car accident victim in a personal injury

action previously instituted against the defendant, and the accident victim

would be a witness in the same defendant’s separate criminal case); Amor, 398 A.2d at 174 (holding that recusal of the entire county bench was required

where a woman who was remarried to a common pleas judge of that county

would have to appear before one of her husband’s judicial colleagues in a child

support action initiated by the woman’s ex-husband).

There is no legal authority for the proposition that when a biological

relative of a county row officer is called as a witness, the district attorney and

entire bench of that county must remove themselves from the case. See,
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e.g., Commonwealth v. Lutes, 793 A.2d 949, 956-57 (Pa. Super. 2002)

(holding that the trial court did not err in denying a motion to disqualify the

district attorney’s office and no conflict of interest existed where the victim

was a county commissioner).

Furthermore, during jury selection, the trial court informed the jury of

the family relationship between Griffith and Prothonotary Patton. N.T.,

1/7/19, at 69-70. The court inquired as to whether this fact would have any

impact on their ability to be fair and impartial. Id. No juror responded that

it would, and Appellant’s counsel made no further inquiries. Id. The trial

court has also considered testimony from Blair County First Deputy

Prothonotary Vicky Claar about any conflict of interest. Ms. Claar stated that

steps were taken to insulate Prothonotary Patton from any involvement with

Appellant’s case and any issues related to Griffith, and averred that no conflict

of interest existed. See N.T., 8/7/18, at 27-34. Moreover, Appellant concedes

that he “is not challenging any personal impropriety on the part of the [trial]

court or the District Attorney’s Office”; Appellant’s Brief at 48. Upon review,

we discern no evidence to support a finding of bias, prejudice or unfairness.

See, e.g., Opinion and Order, 9/20/19, at 13 (explaining that the trial court

had no social and minimal professional contacts with Prothonotary Patton).

Finally, to the extent Appellant emphasizes the plea deal that the District

Attorney’s Office offered Griffith in exchange for her testimony at Appellant’s

trial, see Appellant’s Brief at 46-48, this is a routine occurrence and function
J-S30011-20 & J-S30012-20

- 20 -

of the prosecution’s authority, and there is no evidence indicating that the

prosecution was partial. Accordingly, Appellant’s seventh issue does not merit

relief.

In his eighth issue, Appellant contends that the trial court abused its

discretion in denying his motion for a continuance filed four days prior to jury

selection. See Appellant’s Brief at 53-55. According to Appellant, his defense

counsel:

needed further investigation of various matters which was

exemplified by what occurred at the trial with respect to the

introduction of testimony of Ashley Brubaker, the purported false

statements given by Kelsey Bergman[,] and the previous

undisclosed testimony of the expert witness, Agent Thomas

Moore.

Id. at 55. We recognize:

Appellate review of a trial court’s continuance decision is

deferential. The grant or denial of a motion for a continuance is

within the sound discretion of the trial court and will be reversed

only upon a showing of an abuse of discretion. ... Discretion is

abused 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. Brooks, 104 A.3d 466, 469 (Pa. 2014) (citation

modified). Trial judges “necessarily require a great deal of latitude in

scheduling trials. Not the least of their problems is that of assembling the

witnesses, lawyers, and jurors at the same place at the same time, and this

burden counsels against continuances except for compelling reasons.”

Commonwealth v. Sandusky, 77 A.3d 663, 671 (Pa. Super. 2013) (citation
J-S30011-20 & J-S30012-20

- 21 -

omitted); see also Commonwealth v. Antidormi, 84 A.3d 736, 745-46 (Pa.

Super. 2014) (stating that an appellant “must be able to show specifically in

what manner he was unable to prepare for his defense or how he would have

prepared differently had he been given more time. We will not reverse a

denial of a motion for continuance in the absence of prejudice.”). To

determine whether a trial court erred in denying a continuance request, “we

must examine the circumstances present in the case, especially the reasons

presented to the trial court for requesting the continuance.” Sandusky, 77

A.3d at 672. The case against Appellant was initiated in July 2017. Appellant filed

the motion for continuance approximately 11⁄2 years later, and just four days

prior to jury selection on January 7, 2019. The record shows that the trial

court had: (1) considered numerous pre-trial motions filed by Appellant; (2)

previously granted several other continuances requested by Appellant; (3)

ensured that discovery was completed; and (4) appointed an expert witness

and an investigator to assist Appellant’s defense. Additionally, trial had

previously been delayed after Appellant fired his first counsel and chose to

proceed pro se, but eventually had new counsel appointed to represent him.

Further, Appellant’s defense counsel was informed in October 2018 that

the case would proceed to trial in late January 2019. See N.T., 10/9/18, at

43-44. Notably, on November 27, 2018, the following exchange occurred

between the trial court and defense counsel:
J-S30011-20 & J-S30012-20

- 22 -

BY THE COURT: ... I can resolve [any outstanding matters] for

this matter to go to trial January 28th[, 2019]. It is two full

months. ...

[Defense counsel]: I am okay with January 28th. N.T., 11/27/18, at 113 (emphasis added).

The record supports the trial court’s statement that there “was no

presentation to the court, nor did it appear to the court prior to trial, that

counsel for [Appellant] felt he was unprepared for trial.” Opinion and Order,

9/20/19, at 34. Finally, we discern no record support for Appellant’s claim

that he was prejudiced by the court’s refusal to afford him yet another

continuance, especially one requested so close to trial. See, e.g., Antidormi, 84 A.3d at 746 (holding that the trial court properly denied the defendant’s

fifth request for a continuance, made on the first day of trial, which was based

upon nothing more than a bald allegation by defense counsel of insufficient

time to prepare). Accordingly, the trial court acted within its discretion in

denying Appellant’s request for a continuance. In his ninth and final issue, Appellant contends that the trial court

deprived him of a fair trial by permitting the Commonwealth to introduce the

CellHawk historical cell site location information (CSLI) for his phone without

first obtaining a search warrant pursuant to Carpenter, 138 S. Ct. 2206. See

Appellant’s Brief at 25-26. The United States Supreme Court held that, absent

a specific exception to the warrant requirement, law enforcement must first
J-S30011-20 & J-S30012-20

- 23 -

obtain a search warrant supported by probable cause in order to obtain CSLI

from wireless service providers. Carpenter, 138 S. Ct. at 2221.

In reviewing Appellant’s claim:

our standard of review in addressing a challenge to a trial court’s

denial of a suppression motion is limited to determining whether

the factual findings are supported by the record and whether the

legal conclusions drawn from those facts are correct. We are

bound by the suppression court’s factual findings so long as they

are supported by the record; our standard of review on questions

of law is de novo. Where, as here, the defendant is appealing the

ruling of the suppression court, we may consider only the evidence

of the Commonwealth and so much of the evidence for the defense

as remains uncontradicted.

Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017) (citations

omitted).

The trial court concluded that Appellant waived this issue because he

failed to timely raise a claim implicating Carpenter prior to his post-sentence

motion. See Opinion and Order, 9/20/19, at 25-32; see also id. at 32-33

(opining that even if the claim was preserved, it lacks merit because any error

in admitting the CSLI evidence was harmless given the totality of the other

overwhelming evidence of Appellant’s guilt). We agree, as the rationale is

again supported by the record and law. Therefore, we affirm Appellant’s final

issue on this basis. See id. at 25-33.

Judgment of sentence affirmed.
J-S30011-20 & J-S30012-20

- 24 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/11/2020
Circulated 07/16/2020 02:12 PM

IN THE COURT OF COMMON PLEAS OF BLAIR COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA, 

v. 

1880 CR 2017 

0773 CR 2018 

KASHIF OMAR ELLIS, 

DEFENDANT, 

ELIZABETH A. DOYLE PRESIDING JUDGE 

N 

c:> 

: 

- .. 

' 

I�

· l hj 

I 

DEC 2 2019 

Pn 

COUNSEL FOR DEFENDA�T 

' 

COUNSEL FOR COMMONWEAL TH 

Opinion and Order 

Introduction 

"' 

And now, this d!L day of September, 2019, before the court are the Post- �

PETER WEEKS, ESQ. 

NICHOLE SMITH, ESQ. 

R. THOMAS FORR, JR. 

Sentence Motions filed by the Defendant, Kashif Omar Ellis, ("Ellis") on April 26, 2019. 

On July 31, 2019, the court granted an extension to decide the post-sentence motions. 

Memoranda were received from the parties, and the matter is ripe for decision. 

Applicable Law 

The court will briefly address the applicable law governing post-sentence motions 

prior to listing Eiiis's specific issues. Post sentence motions are governed by 

Pennsylvania Rule of Criminal Procedure 720 (B) (1), which provides: 

(B) Optional Post-Sentence Motion. 

(1) Generally. 

(a) The defendant in a court case shall have the right to make a postsentence motion. All requests for relief from the trial court shall be stated 

1 s 
with.specificity and particularity, arid shall be.cortsolidated in the postsentence rr1otion,which may include: 

(i) a motion -ch�llenging the validity of a plea· of ,guilty or nolo 

contendere, o.r the denial of a motion to withdraw a plea of g·u_ilty or 

nolo contend ere; 

(ii) a motion-for judgment of acquittal; 

(iii) a motion in arrest of juclgrnent; 

{iv) a motion tor a new trial; and/or 

(v) a motion tq modify sentence. 

Pa. R Crim; P. 720 (B} (1} 

Pa. R. Crim .. P. 720 also states that issues raised before or during trial shall. be 

deemed preserved for appeal whether or not the defendant elects to. file a post .sentence 

motion on those issues. Pa: R. Crim. P. 720 (B) (1) (c), Accordingly, a waiver argument 

.appropriate for appeal need not necessarily be raised before thecourt or decided by the. 

court on the post-sentence rnonons: but since the Commonweaith has alieged waiver as 

part of its argument; thecourt will address whether issues raised. by the defendant in his 

post sentence motions were.raised before or during trial. 

Substance of Post .. Sentence Motions 

Ellis'-s Post-Sentence Motion is entitled broadly In two sections, "Motion for 

Reconsideration and Modification of sentence" and "Motion for Reconsideration of 

Sentence, Arrest of.Judgment and a New Trial.1i DEFENDANT'S. POST .SENTENCE. MOTION, 

4/26/19, p. 1 (unpaginated), The.first.sectlon, entitled "Motion for Reconsideration and 

Modificatkm ofSentence/·{Motion I), contains five ('5) subparagraphs that generc:1.lly recite 

the procedural history of the case. lo. The second. section .entitled. "Motion for 

Reconsideration of sentence, Arrest ofJudgment and a New Trial" {Motion 11), is divided 

into eleven (11) lettered subparaqraohs. ID;, pp. t..3. Addressrng Motion a first, ten of 

2 
these.subparaqraphs contain substantive requests for relief.1 Ellis does not specify what 

relief in each of-these numbered paragraphs. he is requesting (i":e. a new trial, the arrest 

of the jury's judgment, ·and/or a reconsideration of his sentence). Moreover, none of the. 

allegations of error concern Eiiis's sentence. The majority of _the$e motions describe 

alleged errors made by the, court pre:.trial, ratherthan allegations of error during the trial. 

None of the issues raised involve .. questions of weight and/or sufficiency of the evidence 

presented bythe --Commonwealth at trial. Normally, in a pQst sentence motion the 

allegation would bethat theJury rendered the verdict butJhat as.a matter a,f law the 

evidenc.e. was not .sufflclent, or sufficient but clearly a·gainst the weight or 

incredible such that the court should .set aside. the jury's verdict� Most of Eiiis's 

motions begin with art tndlcatlon that Ellis ''was denied. a fair trial." S.uoh ·an averment is 

indicative of a motion for a new triai, not a motion in arrest of]udQmenL As. mentioned, 

none of the motions indicate tile court should reconsider or rnodity Ellis's sentence, 

despite being -stYl.ed in partas a "Motion for RecOnsic-;leratioh otsentence. ,. "As a result, 

it is difficult for the court to address Eiiis's claims usihg the proper �gal 'standard, or to . . . . 

give him relief. 

The specific. issues raised by Ellis in htsPcst-Sentence Motion are as follows: 

a. Your Petitioner believes and therefore avers that he· was .denied a 

fair trial by the.jury of his peers in that the Blair County Court and the 

DistrictAttorney's Office should have reoused itself because of the 

appearance Of impropriety in that the Oommonwealth's chiefwitness 

�gainstlhe Defendant in this matter was Taylor Griffith, the.dauqhter 

:of Robin. G. Patton, the Prothonotary and Clerk .of Courts of Blair 

County for the reasons 'Set forth in your Petltioners (sic) Pre-Trial 

Motion with the hearing held on November 27, 2018. 

b. That your Petitioner believes and therefore .avers tlie .Court erred in 

denyfng his Franks motion in that the warrants issued to obtain 

1 Subparagraph k tsa request for transcripts, 

3 
c. 

d. 

e. 

.g. 

h. 

evktence· of .the electronic surveillance in this matter were obtained 

ln violation of. [Franks v. Delaware] in that the affidavit was obtained 

using, ·knowing or with reckless disregard to the truth of the 

statements· or information provided by. unreliable Wfu.'iesses . and 

based upon the actions and the activity of the officer who scuqhttne 

warrant namely Sergeant Matthe.w Starr, an Attocna · Police 

Oepartrr,eiit. detective who was subsequently convicted and 

sentenced on charges involving fraud. 

TheDefenoant was denied the right to a fair and impartial trial where. 

lhe 'Commonwealth failed to advise petitloner/defendant that the 

Cornrnonwealth had knowledge of the untruthfulness of· the 

purported statement of potential Commonwealth wtth.$ss, Kelsi 

Bergrh_arin., until the time of trial in violation of Bradyv. Maryland .. 

The Defendant was denied the right to a. fair and impartial trial where 

·this honorable court refused to suppress or limit the interceptions of 

his phone records and written communications ·obtained- from the 

s·tate.Corre.ctional Institution at Graterford and the .State=Correciional 

Institution cjl Huntingdon which the Commonwealth used .to present 

in essence, a confession given by the Defendant d_uring. the 

Commonwealth's closing argurrientto thejury. 

The �fendant was denied the right to a .fair and lmpartial trial where 

the Commonwealth failed to. provide the Petitioner/Defendant with 

discovery of all the expert reports, spe,cifi¢ally where the 

Commonwealth called a witness from the Pennsylvania Office of 

Attorney General to explaincertain language and words purportedly 

used bythe Defendant withput the Commonwealth _providing said 

intormatlor. through discovery before commencement of theJurytrial. 

The court erred when it denied the Defendant's. requestfor a mistrial 

whe�� the jury pool was able to observe the O:efendanf in shackles 

with respect to this. hands and feet lmrnediately before and during 

jury selection. 

Th_e. Defendantwas denied the right to a fair and impartial trial where 

ttie Commonwealth failed to provide the statements of 

Commonwealth witness, Ashley Brubaker, prior to the tri�I so as to 

permit the Defendant to. investigate said .staternents. 

The Defendant was denied the right to a fair and ·impartial. trial When 

the :Defendant was denied his rights under the oonrrcntatton Clause 

of both the United States Constitution and Pennsylvania Oonstituflon 

4 

..... ·······-·····- --------- 
to- cress-examine a Commonwealth. witness, Travis De.nny, with a 

letter which would have been used for impeachment purposes. 

i. The __ D_efendantW.as denied the right to a fair and itnpart,al_trial where 

the Commonwealth obtained evidence as to pingin_g of the 

Defendant's cell phone through a court .order insteac qf properly 

obtai.ni.ng a warrant for said -evidence as required ·by Carp.enter v 

U.S .. [citation omitted]. . 

j. The Defendant was denied the rightto a fair and trnpartial .trial Where 

the· tri.�! court imprpperly denied a continuance request by the 

Defend.ant for the purpose -of further reviewin_g and in.vestigating 

discovery provided by the Commonwealth to more properly craft a 

defense to· each of the charges at the above-captioned criminal 

action numbers. 

lo., pp. 1-3. (some words and phrases omitted). Prior to add res.sing each of these. issues, 

the Court shall briefly discuss the procedural history ofthis case «, 

PROCEDURAL.HISTORY 

On Februaryt, 2019, Ellis was convicted of Criminai Homicide- of the First-Degree 

and all othercharges filed . to case number CP-07-CR-0001880-20.17-. after a five(�) day 

jury-frial. On the same day, Ellis was convicted of Retaliation Aga.inst··a Witness and all 

other chargesJiled lo case number CP-07.:CR-OQ00773-201.8. On April, 16, 2019, the 

court sentenced Eilis to life in prison without the possibility of parole followed by twentythree (23.5) to forty-seven (47) years of incarceration. On April ·26,.201_9, Ellls filed Post-- 

Sentence Motions .. On _July 31

1 2019., the court. granted Ellis;s requestto extend the time 

for deciding the motions .. On September 5., 2.019. the-court entertained argument on the 

motions. Ellis was not.present atthis proceeding because he. refused to. be. transported 

from the State·. Correctional Institution. The court shall now hnefly recount the factual 

background of this case. 

5 

··········-·-···········---------- ·-------------------- 
FACTUAL .BACKGROUND 

Ellis was convicted. of; inter alia, first degree homicide for ·shooting and killing 

Stephen LaMorit Hackneyr'Hackney") in the early morning hoursof Jul.{13, 2013. The 

murder occurred in the. course of a robbery/home invasion at ·1·24. Walnut Street in the 

City of Altoona, Pennsylvania ("the apartment"), Thetrial testimony .revealed that Ellis's 

co-defendants in thi$ armed robbery-turned- homicide were Taylor Gtiffith fGriffith") and 

Qasim Green t'Green'). The. homicide remained unsolved for .epproxlmately four (4) 

years. One of the Commonwealth's key witnesses was Griffith, ·who ·testified that she 

assisted in whats he indicated she assumed was going to be only a robbery 9f Hackney, 

She testified that she witnessed Ellis burst through Hackney's bedroom door and fire 

three rounds from a semiautomatic pistol at Hackney, who collapsed to the floor. One 

shot penetrated the outer wan and went into the house next door, Griffith also testified 

that upon Hackney co11a-psing to the floor, bleeding, Ellis turnedthe gun on her arid stated, 

"ru. n ,.. b. itc. h.. " 

Another cornerstone of the Oornrnonwealth's case was testimony from Travis 

Denny, an individual.who testified that he was cellmates with EJlis at SCI Huntingdon. He 

.testified that he and. Ellls we.re watching the television show "The First 48

1', when Ellis told 

him that he shotsomebody three times and never got caught Ellis tolo Denny that the 

person he shot was narnec Steve, Ellis further told Denny he. shotSteve Jor money, and 

that he ran outthe backdcor of the house and dropped money as he ran. He testified 

that he met Stevethrouqh his.girlfriend Taylor. The testimony.and exhibits attrial revealed 

that Stephen Hackney was shot, three shots were flred, and moneywas found on the 

6 
stairs and the, floor of the house where Hackney was killed, and that the defendant's 

girlfriend was Taylor -Griffith. 

Griffith is the daughter of the Blair County Prothonotary/C1e� of Courts, Robih 

Patton. Atiury selection the court disclosed. this relationship, and asked the prospective 

jurors whether U. would have any impact on their ability to be- fair and impartial jurors in 

the case. There· was no response from the prospective jurors· to the court's question, and 

no further inquiries made by defense counsel. 

As noted previously, Hackney was killed July 1�•. 2013, One of the early 

investigators in the case- was former Altoona police detective Matthew Starr, Who. after 

the bulk of theinvestiqafiertwas .convicted offraud on an unrelated matter. EUis at no time 

called or attempted-to call. former Detective Starr to the witness.stand before trial to raise 

an issue relative to. Franks. v, Delaware, 438. U.S. 154 (1976). 

Ellis made a number of phone calls from prison, which-were recorded and used 

. . . 

�gainst him at trial by the Commonwealth. Before trial Ellis requested that these be 

suppressed orllmlted. Thecourt denied this motion inan order filed of record October26, 

.2018; wlthoutprejudice to Ellis. The record reflects that Enis never renewed this arqumen] 

or supplanted it ·with the· court. Further, during the fourth. day of trial, when the 

.ComrnonwealJh-soughtt.o·:Ph='Y portions of therecorded telephone calls between Ellis and 

Griffith and. Ellis and a Jarell .Smith, counsel for Ellis requested that the .entire telephone 

call, including the portionofthe call that indica.ted thatitwas made from prison, be played 

for the jury. That call indicated a discussion abouta cell phone drt>ppe.d b.y Green. When 

told that the police had found the phone and thatthey believ_ed it would lead them to the 

killer, Ellis said, "tt'soverfor me; dog-I know he's going to.breatne." 

7 
Commonwealth Atty. Gen. Agent Thomas Moore ·was called by the 

Commonwealth ·to· -aid the. Jury in understanding the vernacular .in which the defendant 

and. ccidefendants .spoke arid the slang they used in their communication .. He explained 

that 'breathe" meant to tes:tify against someone. The Cornmonwealth provided written 

notice ofAgent.Moore'.s testimony on April 18, 2018. Attrial, after the commonwealth 

conducted an examination regarding agent Moore's expert qualifications and moved for 

the court to recoqnize him as an expert, counsel for Ellis. was. g:iven. an opportunity to 

cross-examine .the witness. Ccunsel accepted the witness as an expert. 

EIHs'.s. conduct prior to ttial included mlsconduct at the Blair County prison, and 

threats again$t"pris.onpersonnel and codefendant Griffith. His .attitude before the court in 

pretrial proceedinqs led the .court to specifically warn h_im that his conduct would 

determine whether he was shackled for Qr presentat various court proceedings. Because 

of his actions; he was .shackled during jury selection and at trial, The record of jury 

selection does· not demonstrate that the jurors viewed restraints- on Ellis at jury selection. 

It is not contested that restraints were invisible during the. trial. 

Part of the Commonwealth's case included evidence: illustrated _oy the Cell Hawk 

technology that showed cellular telephone towers receiving pings ailegedly from cell 

. . 

phones identified:as bein9 .associated with a familymember of Ellis-and· associated with 

Griffith, and which corroborated Griffith's account that after the: murder she and Ellis fled 

to Philadelphia_. The Ce!I Hawk technology was challenged by both· Green and by Ellis 

as being scientifically unreliable and was the subject of.extertsive testimony on August 

20, 2018. 

8 

. . ··············--··-····-··-- ------------ 
Robert Donaldson, Esquire, filed an Qmhib�s Pretrial Motion for relief on behalf of 

Ellis on March 1=9, -20.18. After he was discharged by Ellis>as counsel, on October 1, 201 a, 

Ellis filed .an Omnibus Pretrial Motion for relief as a self- represented li_tigant which was 

allowed by the court even though it was untimely. Attorney Donaldson'-$ Omnibus Pretrial 

Motion was. in thenature .of a writ of habeas corpus and a rnotionforhls client to be able 

to have hard copiesof discovery documents prior to trial. Atheari_ng held on the Omnibus 

pretrial Motion on March Z:3", 201.8 Atty. Donaldson asserted 'that" he was going to file 

additional motions, one having to do with the software called Cell. Hawk, and a motion for 

change of venue. Eilis's Omnibus Pretrial Motion contained a Motion to Dismiss all 

Charges; a Motion-for-Change of Venue and Ven ire; a Motion torseverance, a Motion to 

Suppress: Prison. Phone Call Recordings and Prison Inmate f.,fa,VLetters,. a Motion to 

Suppress: Warrant for Sprint Cellphone#{267)257-3995 and/or Procedural and 

Juris.dictional Defects dated 1/17/2014, a Motion to Suppress: Procedural and 

Jurisdictional Defects S.eart:hWarrarit7/22/2013:, a ry1otion toSuppressandzor Excluded 

(sic) Additional. Physical Evidence or Materials at Trial.. a Motion for ln Forma Pauperis 

Status:, a Molion for Appointment of Experts'. and a Motion for Appointment of 

Investigator. Separately, at various hearings., Ellis also joihe.d g_en·erally in motions by 

codefendant Green about the scientific reliability of the .Cell Hawk technology proffered 

by the Oommonweatth .. 

There was: no Motion to Suppress Ellis's geographic location throuqh' the use of 

his cell phone of .cell .tower location information contained .in Attorney Donaldson's 

Omnibus Pretrfal Motion. He did join in a suppression motion made PY Attorney Dickey 

to suppress Green's Samsung cell phone found outside Hackney's resfdence. Transcript 

9 
. of Oral Argument, 06/22118, p�2. Eiiis's pro se Omnibus Pretrial Motion included a 

''Motion to Suppress: Warrant for Sprint Cellphone #(267)257-399�' and/or Procedural 

and Jurisdictional Defects dated 1/17/2014". ln it, he asserted. that the .Commonwealth 

sought and requested the court to issue cm· order directing the disclosure of records 

concerning electronic communicauon services provided in section :0743 of the 

Wiretapping and Electroh.ic Surveillance Control Act, 1.8 Pa.C .S.:§ 57 43. He also asserted 

that police officer Matthew S. Starr sought permission and/or authorityto obtain a search 

warrant for the contents of (electronic information stored within) a Sprint. cell phone With 

the number 267"'2�7-·3_995. The court can find no record that such search warrantwas 

sought, and the.Oommonwealth asserts thatone was not obtained. for telephone number 

267-257�3995,2. 

Ellis also· asserted that the. search warrant lacked the siqnature of issuing authority 

and was procedurally defective. In his motion, .although he used the number 267...;.257- 

3995 in its caption, he identified the cell phone he was talking about-as a Sprint HTC 

cellular phone (mooel.PG 8.6100), fee id, ntn8pg86100, meid hex a10,00017 bdf 44, 5/h16. 

nh276$9, with the-contents to be searched to include, but not belimlted to, calls received, 

calls made, missed calls, contacts Within phone, text messages received, but not limited 

to, vclcemall. videos.downloads, emails and pictures stored within. He stated thata copy 

of the applicable. search Warrant w�s attached to his motion and made ·part thereof, as 

Exhibit C. He requested a hearing pursuant to. Franks vDelaware, 438 .U.S .. 154 (1978), 

alleging that Matthew S: Starr was subsequently terminated from the Altoona Police 

Department for ·fraud and dishonesty. He requested the court to suppress ariy and all 

2 At the motions h·�arjng.o_n August 7,, 2018, Ellis stated thatthe phone subscriber ofthat number was Nafeesah 

Ellis. 

10 

·············----·------------------------------- 
evidence of the. Sprint cell phone dated 1117/14. The affidavit of probable cause of the 

search warrant attached to the defendant's motion as exhibit C reveals thatthe Sprint 

HTC cellular phone model PG 8$100,. with the other identifying numbers used by 

defendant in his motion; was found on the dresser in the victim's bedroom. The affidavit 

also revealed that the cell phone has been in the custody of the Altoona .Police 

Department evidence room since the time of the incident. 

At the time the motion was· filed, Ellis, who had been a pro· se litfg_ant, was 

represented by Attorney Ferr, who had been· appointed to represent .him on September 

26, 2018. Reg_ardless of whether this Omnibus Pretrial Motion for Relief thus cohstitμted 

hybrid representation.Ellls did not raise in his motion any request-to suppress lnformatiori 

about the location of this cell phone. His final requested relief was for the. court to 

"suppress any and all evidence .seized pursuanUo the search-warrant and/or' procedural 

jurisdictional defects··of the Sprint cell phone.dated 1/17114." 

Ellis also filed a Motion to Suppress and/or Excluded {sic} Additional Physical 

Evidence or Materials at Trial. In item A he sought to suppress any $nd ·aH prior bad acts 

of defendant Ellis·; in item ·B he sought to suppress any anq all prior criminal ccnvlctlons: 

in item C. hesouqhl to suppress the "geographical origins of Defend.ant Ellis", He went 

on to list with sp�cificity other items. and witnesses' statements and telephone .calls he 

Wi$hed to have suppressed. By the plain reading of item C aslisted, the court took it to. mean where hewas born or originally from, as he was hot originally from Blair County, 

but from the Cit{of Philadelphia. No request to suppress his geographic Jocation or that 

of his cell phone is lncluded in this section of his motion. 

11 
In a hearing on the Omnibi.rs Pretrial Motion held Octobers, 201t_ counsel for Ellis 

mentioned the Carpenter case; After that hearing the court gave counsel twenty days to 

submit a brief. Transcript of Motions in Matter;.. 10/09118, p. 28i II. 22-25. Briefs wete 

subrnitted.and the court.rendered .an Opinion and Order on December 14, 2018. Notably 

absent from the arguments is any mention of suppressing .evidence pursuant to 

Carpenter. 

At trial, the; Commonwealth introduced numerous other- fact witnesses besides 

Griffith and Denny; .and also expert witnesses, that established its theory of the case of 

Ellis as the murderer. Also during the trial, Ellis unsuccessfully attempted. to demonstrate 

that the lnvestlqatlon was mcomplete and thatthere was a party-going on downstairs at 

the decedent's residence, as evidenced by the numerous shoes in the living room, the 

Newport cigarettes throughout the house, the many alcohol bottles throughout the house; 

and marijuana _i_h the home as well, and that it could have been someone else that 

committed the murder. The jury rejected this theory. 

We shall now address eaC.h of the issues raised by Ellis in his post-sentence motion 

·seriatim.�

1. There was noactual conflict nor any appearance of impropriety such that �he 

court should have rec used itself or the remainder of the .. Bl;lir County Bench. 

The court fμrther has no power or authority to force the District Attorney's 

Offlceto recuse itself from a ease based on a mere- accusation of a conflict 

of interest. 

The applicable legal standard fora motien seeking recusal .of a judge is as follows: 

We recognize thatour trial judges are honorable, fair and competent, and 

although we employ an abuse of discretion standard, we· do so recognizing 

that the judge.- himself is best qualified to ga1,.1ge .his ability to preside 

impartially. A_ trial judge should grant the motion to recuse o·n1y if-a do.ubt 

exists as: to his or her ability to preside. impartially or if- lmpartiafity can .be 

3 The courthas.rnerelysubstltuted numbers.for .letters. 

12 
reas.oh-�bly questioned. In order to prevail on a motion forrecusal, the party 

seeking ·recusal ·is- required to produce evidence estabiishfog· bias, prejudice 

or unfalrness- which raises a substantial doubt as- to the· jurist's apility to 

presldelmoartially. 

Interest of L V.,. 209 A:3d 399, 415 (Pa. Super. 2019) (internal citations arn;f quotation 

marks omitted). In seekinq to disqtJalify a prosecutor, a defendant.must show more than 

mere allegations of a conflict of interest. Commonwealth v. 1'i1ulholland, .702 A.2d 1027; 

1037 (Pa. 1997)·. Ellis·. c:ontends that because Griffith is the daughter" of the elected 

Prothonotaiy of BlairCounty, Robin G. Patton ("Patton'')4,the entire.bench ofBlair County 

and the District Attorney's office should not have participated in his trial. Before jury 

selection, the trial. court placed on the.record thattt had no sod�I and rnlnimal professional 

contacts with the elected Prothonotary, arid made a determination that the court could 

preside impartialty over the matter: At jury selection the court dlsclosed the relationship 

between Griffith and, the.eleeted Prothonotary to the prospective jurors .. N.T., 01/07/19, 

pp, 69-70. There was no response from the prospective jurors to: the. court's question 

regarding this relationship .and whether it would affect jurors.' :ability to be fair, ancl no 

further inquiries made· by defense counsel. Id. Ellis points lo no ·other mention of this 

relationship in the actual trial record. 

The terms of Griffith's plea agreement were freely admitted. b:y the Commonwealth 

in this case. Ellis also readily concedes that he is not.leveling any· accusations of this 

court beiri9. "biased. prejudiced or unfair." Moreover, he citesto casesthat are completely 

inapposite. See Commonwealth v. Eskridge, 604 A.2d 700- (Pa, 1"992.};. Comm. ex rel. 

Atmorv. Armor; 398 A2d:1°73 (Pa. Super: .1979). 

4 R.qbin G. Patt.Ori was not a \,yitne�s at trial. 

13 
In short, despit� quoting at length from the judicial canons and cases that describe 

prosecutors as "stewards of Justice;" Ellis provides no legal authoiify that. stands for the 

proposition that when a bloloqlca: relative ofa county row officer is _qalle_d as a witness in 

a case, the bench and district attorney of that county must remove themselves from the 

case. Nor does he pointto any decision rendered by the court· that was· improperly based 

on bias, prejudiceor unfairness: 

Moreover; the court heard extensive testimony from First Deputy Prothonotary 

Vicki Claar atthe hearing on August 7, 2018: . Notes .of Testim'ony on Omnibus. Pre-- Trial 

Motions,. 8/7/18, pp, 27-34, Ms. Claar testified that the Prothcnotary's office took steps 

to insulate Patton from .any involvement in issues. related to Griffith. lg. Finally, Ellis 

offers no substanfive evidence, nor even an.y allegation, thatthedistrtot attorney's office 

had a conflict" of interest. arising out of the relationship between GJiffith and Patton. 

Finding no support in·the record nor in the law for Ellis.'s claims in hisflrst issue, the court 

shall deny the same. 

5 

2. The, court properly denied Elli$'s Motion to Suppress:_.evidence. 

The courtnoteejhatwlth respect.to this. issue we rely primarily on our prior Opinion 

and Order entered of record on December 28, 201.8. Additionally, . as argued by the 

Commonwealth ih its rnernorand um of law'to the court; E.llis at no tim.e .caned or attempted 

to 'Call former Detective. Matthew Starr to the stand to raise an issue relative to Franks v. · 

Delaware, 438 U.S. t54 (1978). The Pennsylvania Supreme Court has· explained the 

holding in Franks: 

The United $tales· Supreme Court recognized the right- to ch-allenge an 

affidavit's· veracity in Franks ii. Delaware,[. .. ] which addressed whether a 

5 The court also noJ.es-that:itent.ered an.order on November 27� 2018 denving.the motion for racusal and 

indicating that the court had no relationshlp with Patton that would create aruappearance-cf impropriety. 

14. 
defendanthas the. right, under the Fourth and Fourteenth· Amendments, to 

.challenge the truthfulness of factual averments in an -affidavit of probable 

cause. The Court held where the defendant makes a substantial preliminary 

showing the· affiant knowingly and intentionally, or with reckless disregard 

for the. · truth, included a false statement in the affidavit, the Fourth 

Amendment. requires a hearing be. held at the defendant's request, The 

Court emphastzed the defendant's attack on the affidavit must be 'more 

than conclusory-and must be supported by more than a mere oes"ire to cross 

examine [ ]':· the defendant must allege. deliberate falseh.poo or reckless 

dis regard for the, truth, accompanied by an offer of proof.-lf the: defendant 

meets thesereq ulrernents, but the remainder ofthe affidavit's. content is still 

sufficient to establish probable cause, no hearing is required: If the 

affidavlt's remaining .content is .insufficient, a hearing is held, .at which the 

defendant must establish, by a preponderance of tlie· evidence, the 

allegafio.n :,of perjury or reckless. disregard. If he meets this burden, the 

affidavit's false material is disregarded; if its remaining content ls lnsufflclent 

to establish probable cause, the search warrant is voided, .and the fruits 

thereof are excluded. · 

Commpnwealth v. James, $9 A.3d H30, 188 (Pa. 2013) (internal citations omitted), Ellis 

still points to no "deliberate falsehood or reckless disregard for the .truth" nor any offer of 

proof pursuant lo Franks. Ell[s's bald-faced assertion is that Petec\ive· $far.r committed a 

fraud in an unrelated matter. so therefore; he committed afraud in this case. Other than 

thatfaulty lo�ici. Ellis off.ers no substantive argument as to how-the court erred in denying 

his motion to supptess. J:\Gcordinglyi his motion is denied. 

3-, There was no Bra·dy nor other discovery violation regarding the testimony of 

Kelsi Bergmann. 

In the landmark case.of Brady v. Maryland, 373 U.S. 83; ·10.L. Ed .. ·:2d 215 (1963), 

the United States -Sμpreme Court held that "the suppression by the prosecution pf 

evidence favorableto an accused upon request violates.due.precess where the evidence 

is material either to.guiltor to punishment, irrespective of the good .faith or bad faith of the 

prosecution." Id. at 8.7. The.Pennsytvania Supreme Court has held: 

[T]o provea Brady vlolation.the defendanthas the burden.otdemonstratinq 

that: "(.1) the prosecutor has suppressed evidence; (2) the evidence, 

15 
whether.exculpatory or impeaching, is helpful to the defendant, and (3) the 

suppression prejudiced the defendant," Prejudice is demonstratec where 

the evidence suppressed is material to guilt or innocence, Fμrther, 

"[fJavorable evidence is material, and constitutional .error results-from its. 

suppression bythe government, if there is a reeeonableprobaollltythat, had 

the evidence. beeri disclosed to the defense, the result ofttle proceeding 

would have been:different. A reasonable probability is a probability s.ufficlent 

to undermine confidence in the outcome," 

Commonwealth v. Koeh/er,_-36A.3d 1.21; 133 (Pa. 2012) (internal citations omitted). Ellis 

argues that the Commonwealth-failed to disclose the 'untruthtulnsss" of Bergmann's 

testimony. Be:rgmart_n was not·called as a witness by the Gomtnonwealth nor was she 

called by Ellis. As hated by the Commonwealth, any discrepancy in Bergmanh's 

statements could 'have been demonstrated by Ellis during his. case-in-chief. For these 

reasons, no discovery violation occurred and no relief is clue. This motion is denied. 

4. The court did not err in refusing to limitot. suppress the interception of his 

phone records .and written communications obtained while he was 

incarcerated, Qor· .dld it err in allowing them to be played for·the jury. N<> 

objection_s wereralsed at trial to these recordings. 

Ellis presents a boilerplate argument relative to his right to be free from 

unreasonsble-searches and seizures iri support of his contention that the content of his 

prison calls should have been suppressed. However, as correctly pointed out by the 

Comrnonwealttr, 'the court specified in its Order dated octcbers, 2'01 $ and filed of record 

on October 26,. 20·18· .that the court denied this motion 'without prejudice to Ems. 

Specifically the court indicated that the motion to suppress was denied "without prejudice 

to the Defendants ability to raise an individual item of correspondence and establish an 

expectation of privacy, su.ch that the matter should be litigated:" ORDER, 10/9/18,. The 

record reflects that Ellis never renewed this argument nor supplemented it with the court. 

Therefore, the court finds this issue waived at this stage of -the proceedings. Ellis never 

16 
raised or attempted to articulate any reasonable expectation of privacy in his. 

communications from ', prison, either by mail or by telephone. See .Commonwealth v. 

Hawkins,. 718 A2a ·265.1 268 n;3 (Pa. 1998) (it is "an essential element" for a defendant 

seeking suppression to satisfy the burden of proving that he or she has a legitimate 

expectation of prfvacy): Commonwealth v. Caban, 60 A3d 1:201 1.2.6 (Pa. Super. 2012), 

appeal denied, 79 A.3d '1097 (Pa. 2013) (To prevail in a challenge to :the search and 

seizure, [ ... ] a gefendant accused of a possessory crime must O ·estat:.>Ush, as a threshold 

matter, a legally cogniz.able expectation of privacy in the area se.arche�t:")

6 

Moreover, the Pennsylvania Superior Court has held that a prisoner has no 

reasonable expectation .of privacy in his non-privileged mail. Commonwealth v. Moore, 

928 A.2d 1092,.1102 (Pa Super. 2007), In Commonwealth v, Prisk,. 13 A.3d 526, (Pa. 

Super. 2011)

1 the Superior Court held that an inmate did not have a reasonable 

expectation of privacy in conversations that he had in a prison visitation room. Id. at 532. 

In Commonwealth v. Byrd, the Superior Court held that the evidence ln th�t case 

(including a. wa.rning that the calls were recorded played during the conversation) 

demonstrated that defendant consented to recording of jailhouse telephonic 

conversations .wit� visitors, under the mutual consent exception to the ·wire.tap Act ki., 

t85A.3d 1015, 1.019 (P�. s:uper .. 2018). In regards toa telephone-call between an inmate 

�nd his parents, the Pennsylvania Supreme Court in Commonwealth v .. Beumnemmers 

observed: 

Simply stated, there is no basis to conclude that the privacy rights of 

Appellant or hisparents werelnfrinqed when their March 2, 2-001 telephone 

conversation wasrecorded. These individuals were actually awarethat.their 

6 The.Cabon case was overruled.on other grounds. see tn re L.J,, 79 A.3d 1073 (Pei.: 2013) (prospectively holding that 

an appellate courtrevtews the suppression �videri.c.e and does not also.consider trial evl9ence in determlnlngthe 

correctness of a suppresslon court ruling). 
telephone conversation was being or could be intercepted and recorded by 

prison authorities, · 

Commonwealth v. Beumnemmers, 960 A.2d 59,79. (Pa. 2008), 

. . . 

The court permitted Ellis to ralse the issue of the intercepted communications and 

not only did he-faH·to do -$0. or attemptto litigate the issue, he· never specifically objected 

to the admission of the same. The Commonwealth offered to redact the calls of.certain 

information r$garding_ Eiiis's incarceration. Notes of Testimony, 01i28f19, pp. 277�279. 

There was no objecton by Ellis When the Commonwealth's witness, Travis Denny 

("Denny"); testified that he was incarcerated with Ellis at SCI Huntingdon. Notes of 

Testimony, 01129/1�; pp. 76.;80. The Commonwealth clearly put on the record that this 

informatton was part of Denny's 'testimony and no objection was lodged .at any time prior 

to Denny·� testimony. Jg., 01/29/19, pp. 47�5.0: There waa.no objection by Ellis-when 

the Cornrnonwealth's witness, Lieutenant Anthony Eberling·, testified that Ellis was 

incarcerated at SCI Huntingdon in the summer of 2017. Note·s of Testimony, 1/3.0/19, 

p. 10, IL 5�10. Nor wasthere any objection to the testimony of Corrections Officer Joseph 

Watt regarding Etlis's mail being scrutinized by the Department of Corrections. N.T., 

1/30/19, pp. 27-32. There was no objection to the testimony-at Corrections Officer Travis 

Weakland that dealtwiththe same topic .. N.T .. , 1/30/19, pp, 33-·3·s-. the Commonwealth 

asked the defense, the· day before calling the.se witnesses, if Ellis accepted the 

stipulation re�ardihg_ the exhibits entered through these corrections officers regarding 

Ellis;s mail moriitbnrig by the Department ofCorrections. N.T., 1/29/19, p. 137, 11.16�25. 

Counsel for Ellis indlcated he consulted With E:llis and replied,_ ·"We: have- discussed them 

briefly and they are .acceptable, Your Honor." Id., p. 138_. 1-6: As argued JJY the 

Commonwealth, Ellis's .objection at trial to the. introduction of the letters written by him 

18 

·····-·····-········-·--···-········-···-·---·-·-·····-····-----·----··- ----------------------------- 
from prison was "based upon the motion previously made." N.T., 1/3_0/19, p, 106, IL 14- 

25. 

There was no Indtcatton whether this was a reference ... to the suppresslon motion 

filed by Ellis and subject to the court's ruling in its October 9, 20·19 order. and there was 

no arqument made relative to the objection. jg. During the fourth day of trial, when the. 

Commonwealth sought to play portions of the recorded telephone prison calls between 

Ellis and .Griffith and between Ellis and Jarell Smith, this exchange occurred: 

Couns.el for the Commonwealth: ft is my understanding forthe record 

we're playing_ the entire call at the request of Aito.rney Farr with no 

redactions first. 

Counsel fb.r Eiiis: That's accurate, thank you. 

N.T.. 1/31/1·9, ·p· . 61, 'fr. 18-21. Clearly the record supports the Commonwealth's 

oontention that it was Elli�'s desire to have the cans· played in ·tf,ek entirety Without 

redaction. 

For all of the .above stated reasons, Ellis has not established a basis fat the court 

. . 

to.grant any relief: The motion is denied. 

5 .. There ls no mer,t to Ellis'.$ motion regarding the commcnwealth's witness 

Supervisc>ty· Agent Thomas Moore ("Agent Moore'} 

Ellis arg.ues tfiatthe·Commonwealth "violated the mandates of Brady v. Maryland' 

when it.failed todisclose its intentions, before cornmerrcementet thetrlal..of calling Agent 

Moore to testifyas. art expert regarding certain language and words purportedly used by 

the Pefitioner/Oefendant," ELLIS'$ BRiEF IN SUPPORT OF MOTfON FOR RECO.�SlDERATION OF 

SENTENCE, ARR.EST OF _JUDGMENT, AND A NEW TRIAL, 8/1.9119,. 1I e (unpaqinated), At trial, 

19 

··-·-···-·---·-·--··-···-·---·--····-·-- ---------------------------------- 
after the Commonwealth conducted an examination regarding_ Agent· Moore's expert 

qualiflcatlons and moved for the court to recognize him as .an expert, Eiiis's counsel 

conducted cross exatnmation on this subject. KT., 1/31/19, pp. 69-70 .. Defense counsel 

then indicated to the court, "I. have no further questions. I w.ill [accept] him as an expert 

he's been around. Thank· you Your Honor." N.T., 1/31/19, p. 70,. IL 23�25 (homophone 

inserted)? Notably absentfrom the record is any indication of surprise. any objection to 

Ageht Moore befng: recognized as an expert or.any mention that Ellis was.unaware ofthis 

Witness'. To the. contrary, the defense acceded to· the Commonwealth's request to 

recognize Agent Moorees a.wltness and added, "he's beenaround." There is no means 

by which the court can.nowrule on this issue.after the jury has rendered a verdict and 

there appears a·bsolu.te_ly.np evidence in the record that Ellis was unaware of this witness 

orwhat he was g·oing_ to. presentto the jury� The Commonwealth provided written notice 

of Agerif Moore's. testimony oh April 18·,. 2.018.. COMMONWEAL TH's· NbTiQ.E OF EXPERT 

TESTIMONY, 04/1:8/t8, p. 8 ,r 11, 12. The motion is denied. 

6. Thereis noevidence of record thafany member of.the jury pool viewed Ell.is 

in restralnts, . . 

Ellis points to no portion of the record that demonstrates that any_ member of the 

ji.Jry pool was able tosee.his restraints at jury selection on.January 7,, 201-9. The inclication 

that the court made that Ts quoted by· Elli� as demonstrative. that hls "shackles" could 

actually be viewed Is disingenuous because the record is clear thatthe quote on page 

46 occurred at.sldebar. Notes to Testimony at Jury Selection, .O.i/07/19, p. 48, II. 18-25. 

7 The court notes. that the word "except" appears in the transcript. The court believes when :the. context of the 

record is viewed the word thatshould.appear is "accept." These two words sound thesame when spoken but have 

decidedly different meanings. 

20 
Rather, the court took the .. opportunity of a break to insure that it was not possible for a 

prospective Juror to � the restraints: Notably, juror number 18 wh·en questioned by 

Eiiis's counsel if thejuror noticed anything about Ellis this Juror repiied,_ "Notoffhand, no." 

N.T., 01/07/19, p·.·:�6. II: 16-22. The court gave both defense counsel the opportunity to 

demonstrate on the recordthat thejurors could see Eilis's restraints .. N.T., 01/07/19, p. 

20, II. 3-:20. There.simply is nothing in the record that demonstrates that the jurors viewed 

restraints on Et!Is at jury selection. Moreover, even if a prospective juror did notice the 

restraints it is clearthat the:jury at some point became aware that Ellis was incarcerated. 

As previously lndicated, Ellis either did not object to this fact bein_g presented to the jury 

or he indicated his desireto have un .. redacted prison calls presented to the jury. The 

Pennsylvania Sμp·reme Court has observed: 

We observe .at the outset that it is well-settled under common jaw .and 

constitutionally as incident to a fair trial without prejudlcetnat defendantsappear free-from shackles or other physical restraints. The sight of shackles 

and gags,. moreover, constitutes an affront to the very- dignity .. and decorum 

of judicial proceedings. While there exists a legal presumption .aqainstthe 

necessity of physical restraint of an accused in the- courtroom, there are 

exceptional circumstances when the employment of such techniques are 

an .acceptabte practice where such "restraint [is] reasonably ·ne:ce�sa.ry to 

maintain· order." Exceptional Circumstances often have beenfound ln sister 

jurisdictions as well where the defendant disrupts the proceedings, where 

there is evident. danger of escape, and where the court has. reason to. 

believe: that an unrestrained defendant mighfattack others. 

Commonwealth v.: Jasper, e1 O.A.2d 949, 955 (Pa. 1992). The Commonwealth aptly cites 

to the considerations the court encouhtered with Ellis·'s pre-fria] behavior, 

COMMONWEAL T.H

1

$ MEMORANDUM IN RESPONSE TO DEFENDANT'S POST ,$ENTENCE MOTIONS, 

8/27/19, p, 13--1"4 . AU =of this behavior factored into the court's thinking with regard to 

Ellis'.s. potential to disrupt the proceedings. Still, the court believed it-attempted to balance 

the need to rnainta in order and safety ln the courtroom with Eilis's rights to not .appear 

21 
before the jury in· restraints. There is no .indication that he was viewed either at trial or 

durihgjury selectiorr in restraints. Nothing prevented counsel from a_ski.ng or requesting 

the court to ask at .sidebar whether any other juror noticed anything about Ellis· such as 

restraints. Without such an indication .in the record, no relief rs due -. Even ass.urning, 

arguendo, the· jury or ·pro�pective jurors did view Ellis in restraints, such- an occurrence 

did not preiudieeEllis where it was conceded by the defense·that hewas incarcerated 

prior to trial, Furthermore, this court took affirmative steps to insure that any restraints 

would not be vislble.to the prospective jury pool and the empaneled. jury. The motion is 

denied. 

7. There is no merit to Eilis's contention that the Commonwealth's w.itness 

Ashley �rupaker was unknown to. the.defense and no objection lodged of 

record to her testimony. · ·· · 

As is readily conceded by Ellis, he did not object to the· Commonwealth calling 

Ashley Brubaker as.a witness. N.T., 01/29/19, pp. 138.;.139 . .A thorough offer of proof 

was provided of her proposed testimony by the Commonwealth. Id .. After this offer of 

proof, Ellis. ralsed no objection, did not indicate surprise and otherwise .offered no legal 

authority to prevent hertestlmony. Id. Simply put there is nothih_g preserved in the record 

for the court .to analyze. If the defense was surprised by the: Commonwealth's 

presentation of-this Witness the time to raise such an objection was a:t trial, not after the 

verdict was rendered. 

The Commonwealth maintains that there was no formal interview conducted ofthis 

witness prior to January.zs, 2019. If Ellis disputed this, he had the opportunity to raise if 

via cross examination, Jn fact, Ellls's counsel did inquire into wh�n this· witness first.spoke 

to police and her answer was consistent with the Commonwealth's contention thatshe 

22 

.. -·· . ·- ··---·----····-·-·----····- ·---------------------- 
spoke to them on the· nighfaf the homlclde. N.T;, 01/29/19, p.-, rse-rsa. Additionally; the 

defense extensivelycross examined this witness relative to text me�ages on the night . 

. of the homicide. between. her and Ell.is. N. T., o 1 /29/19, pp. 159:-·16'3. There is no merit to 

thls.motion and the. court· denies relief. 

8. The court's· refusal to allow Ellis to cross-exarnlne the Commonwealth's 

Witness; D�m.ny, with _cl .dccument that. wa:s not authored by him. was 

compelled ·by·the P�nnsylvania Rules of Evidence·. and appiicable law. 

Ellis cites to the _general applicability and foundational. lawertshrined inboth the 

United States Constitution and the Constitution of the Commonwealth of Pennsylvania. 

DEFENDANT'S BRIEF, 8/1�/1�. ,r h {unpaginated). There was, however, no dehia.l ofthe 

rightto confrontation iri this trial. As the Pennsylvania Superior Court has. observed: 

The. C9nfrontation. Clause in the Sixth Amendment to the United States 

Constitution provides that all criminal defendants enjoy·"the right-to confront 

and cross-examine adverse witnesses," Moreover, "the- exposure of a 

witness' motlvatlon in testifying is a proper and important 'function of the 

constitutionaily-protected right of cross-examination;" Although the right of 

cross-examination is :a fundamental right, ifis not absc;>I�. 

Commonwealth \i. Rosser; 135 A.3d 1077; 1087-1088 (cltations omitted, emphasis 

supplied). hi Rosser; the Superior Court described the two-step inquiry regarding a 

violation of the: ri_ght of confrontation when the trial court limits: cross-examination that an 

appellate court must undertake: 

First, we inquire whether the limitation prejudiced the examination of that 

particular witness. In other words, absent the limitation, w.ou_ld thejury have 

received a "s.ig_nifieantly different impression" of .the witness's credibility? 

Second, if 'there was error, we must determine whether it was harmless 

beyond a reasonable doubt; itso, reversal is not warranted. 

Rosser, at 1088 (citations .omitted). A review of the trial transcript demonstrates that 

counsel for Ellis attacked Denny's motivation for testifying. N.T., 01/29/19, pp. 86'"95. 

The court put absolutely .no limitatioh on this Une of questioning anc Denny readily 

23 
admitted that his rnotivationfor testifying was that.hewanted to receive "leniency." N.T., 

01/29/19, p. 95_; IL �12. Penny was portrayed by this crcss-examinatlon as being 

motivated by his desire to have hi$ sentence shortened. Theretore, there was not a 

significantly diff�r�nt- impression presented to the jury when the. court prevented defense 

counsel from using-a writi.n_g not authored by the witness to.impeach him. 

"It is lonq.settled that a prior inconsistent statement may be: used ·to impeach a 

Witness:' Commonw({Jalth v Brown, 448.A.2d 1097, 1102 (Pa .. Super. 1982) (citation 

omitted). "In order to· de> so, there must be evidence that the statement was made or 

adopted by the witness Whose credibility is being impeached.J.' Id., (emphasis supplied) 

"lrnpeachment throlig._h .extnnslc evidence is not generally allowed on matters collateral to 

the issues at trial." -Commonwealth V; Bailey, 469 A.2d 249, 264-26.s:·(Pa. Super. 1983). 

The Superior Court has. discussed the. proper methods for impe.aching a. witness; 

The credibility of a. witness may be impeached (1) by showin:g that on a prior 

.occasion he made a statement, either oral or written, that is inconsistent 

with his. present testimony; (2) by competent evidence tending to show 

bias, bad character-for truth and honesty, or defects in memory, perception 

or capacity or ·(3} by the competent contradictory testimony ·of other 

witnesses wh0$€ version of the facts differs from that of the wifoes_s being 

impeached_.. · 

The first ofthese three methods otimpeacnment is obviously-inapplicable, 

for it is axiomatic that when attempting to discredit a· witness' 

testimony by means of a prior inconsistent statement, the· ·s_tate,ment 

must have been. made or adopted by the witness whose credibility is 

being imp�a'ched. 

Commonwealth v. Baez, 431 A.2d 909, 912 {Pa. 1981) (emphasis supplied). When Ellis 

attempted to enter a letter written by Denny's girlfriend to Denny's attorney, the 

Commonwealth objected, �r.guing the identity of the author of this letter was not relevant 

24 
and that D.enny was not the author ofit. N;T., 01/29/19, pp. $7.;89. This exchange then 

followed at sidebar: 

The Court: So how can this witness do anything except speculate about 

the rnotlves of the person who wrote the letter? 

Counsel for Ellis: I-am just going to. ask if he talked to his girlfriend about 

this. If he talked to her and had requested she write a letter to his-attorney 

seeking leniency, 

Counsel for Commonwealth:. _ I don't object if he asksThe Court: Butthen .at.that point yo4 still can't get into. the contents of the 

letter .. 

Counsel fot Ellis:: He is talking about heroin. 

The Court: Throuqh this witness. If you can find the girlfriend-and call her; 

I am not.saying you couldn't .get it in that way, but I don't know-how you can 

get it in throuqh this· witness properly. 

N.T., 01/29/191 p. 9.0,_ II. 1-15. The court did not bar cross exarnlnation of Dennyregarding 

his motivations to· testify and did not bar the admission of the letter. The court merely 

lndicated.that.lt defense counsel conceded this letter was not aethored by Denny he could 

notbe cross-examined re·garding the motivations of the person who did write it. The court 

also left the possib_ility.-of tailing Denny's girlfriend open to the defense. Eilis did not call 

her. The motion is denied, 

9. By raising· the Issue for the first time in his post-sentence motion, Ellis-has 

waived the ... challen_ge he now makes pursuant to Carpenter v, United State,s. 

· Pennsylvania Rule of Criminal Procedure 581 states, 'in part; 

-25 
(A) The· defendant's attorney, or the defendant if unrepresented, may make a 

motion to. the court to suppress any .evidence alleged ·to have been obtained in 

violation ofthedetendarrt's ri9.hts. · · 

(B) Unless the· opportunity did not previously exist, or ·the interests of. justice 

otherwise require, such. motion shall be made only after a case has been returned 

to court and .shall be contained in the omnibus pretrial motion set forth in. Rule 578. 

If timely motlon is not made. hereunder, the issue pf suppression .of such 

evidence shall .be deemed to be waived. 

Pa. Crim: R. p�5s·1 {A).: (B).(emphasis supplied). Ori October 1, 20.18,:Ellls filed a pro se

8 

Omnibus. Pre-Tri1:;1I Motion. No argumentorrnotion relative to thedecision in Carpente.r 

v .. United $tatfJ$,.- U.S .. --. 138 $.Ct. 2206, 201 L.Ed.2d 507 (2-0.18) with regard to 

Eiiis's historical cell siteIocetion information ('

1CSLI") was raisedIn this motion: At the 

hearing on October 9, 20-18, counsel for Ellis mentioned the. Carpenter case, After that 

hearing the courtqave counsel twenty days to submit a brief. ·Transcript of Motions in 

Matter, 10/09/18, · p. 28, II. 22 .. 25. Briefs were submitted and the court rendered ah 

Opinion and Order on Dec.ember 14, 2018; Notably absent from the arguments is any 

rnentlon of suppressingevidence pursuant to Carpenter. Moreove-r,.the written Omnibus 

Pre-Trial Motion for relief is docketed as filed on October 1., 2018,. This fllihg as noted 

below is after-the court appointed. Attorney Forr to represent Ellis. The .reeord reflects 

based on the' testimony at trial that no objection to the mtroducton of this evidence was 

made and the defense attempted to counter it with their own -expert rather than. exclude 

it Therefore, .the. issue has. not been properly preserved arid it is waived, as further 

demonstrated by tne analysis below: 

8 The court notes that Ellis waived counsel. after a colloquy and was a self-representedllrigantfrom approximately 

August 8, 2018t<:>-September 2p, 2018. On August 20, 2018, Elljs .asked to have the.court.appolnt counsel and the 

court appointed R. Thomas,F_orr, Esquire, as counsel on September2�, 2018. onoctober .. 9, ·2018, Attorney Forr 

argued on behalf of Ellis based enthe lssues.ralsed iri his Omnibus Pre-Tria! Mption. 

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