J-S75004-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

DION ELIJAH WAYNE

Appellant No. 146 WDA 2019

Appeal from the Judgment of Sentence Entered December 21, 2018

In the Court of Common Pleas of Erie County

Criminal Division at No.: CP-25-CR-0000697-2018

BEFORE: STABILE, KUNSELMAN, and PELLEGRINI,* JJ.

MEMORANDUM BY STABILE, J.: FILED MARCH 17, 2020

Appellant Dion Elijah Wayne appeals from the December 21, 2018

judgment of sentence entered in the Court of Common Pleas of Erie County

(“trial court”), following his jury convictions for possession with intent to

deliver (heroin and/or fentanyl), tampering with or fabricating physical

evidence, and criminal use of communication facility.1 Upon review, we affirm.

The facts and procedural history of this case are undisputed. As aptly

summarized by the trial court:

On January 5, 2018, Adam Yurkewicz’s grandmother found

Yurkewicz unconscious in the bathroom of her residence at 815

Michigan Avenue, Erie, Pennsylvania. The grandmother

telephoned 911 and the Millcreek Township Police were dispatched

to the residence. Detective Ryan Presner [who was employed as

a patrol officer at the time] was the first police officer to arrive at ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. § 780-113(a)(30) and 18 Pa.C.S.A. §§ 4910(1) and 7512(a),

respectively.
J-S75004-19

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the scene. Upon arrival, Detective Pruner observed Yurkewicz on

the floor. Yurkewicz bad a “bluish-purple tint” and was

surrounded by firefighters who were checking for a pulse. Presner

also observed a partially loaded syringe in the bathroom sink.

Yurkewicz was placed in an ambulance where Presner went

through Yurkewicz’s pockets and recovered a cell phone and a

pack of cigarettes which contained a folded-up piece of paper

holding a white, chalky substance. Yurkewicz was transported to

UPMC Hamot Hospital where he died early the following morning,

on January 6, 2018. It was determined Yurkewicz died from an

overdose of fentanyl. Presner turned over Yurkewicz’s cell phone

to Detectives Hardner and Morelli of the Special Investigations

Unit of the Millcreek Police Department when they arrived at the

scene. Detective Hardner examined the call log and text

messages on the cell phone to determine whether a transaction

involving drugs had occurred. He read text messages exchanged

during the morning of January 5, 2018 between Yurkewicz’s cell

phone and the telephone number “814-449-9983” (hereinafter

9983). Detective Hardner found 9983 was entered in Yurkewicz’s

contact information under the name “Louis”. Based upon the

content of these messages and Detective Hardner’s experience in

narcotics investigations, he determined 9983 was a “phone

number of interest” with regard to the investigation surrounding

Yurkewicz’s death. Detective Anne Styn extracted contents of the

cell phone including the text messages, call logs, photographs, a

web history, Facebook and Snapchat accounts associated with

Yurkewicz, and a Gmail account with the email address

Yurks42589.

At trial, the Commonwealth presented testimony from Yurkewicz’s

fiancée, Kayla Turk. Turk was familiar with Yurkewicz’s cell phone

and testified she was present when Yurkewicz was sending text

messages from his cell phone the morning of January 5, 2018.

Turk also identified Commonwealth Exhibit 18 as a list of personal

text messages between herself and Yurkewicz on January 5, 2018. The Commonwealth’s witness Marlene Yurkewicz, the decedent’s

grandmother, testified as to calls she made to Yurkewicz’s cell

phone on January 5, 2018, that had been recovered in Yurkewicz’s

cell phone records.

At trial, Detective Hardner testified concerning Commonwealth

Exhibit 13, a transcription of text messaging between Yurkewicz’s

cell phone and 9983, the aforementioned number of interest, from

the morning of January 5, 2018. Detective Hardner testified these

texts were highly indicative of drug dealing. Detective Hardner

testified about the content of the text messages as follows:

MR. SELLERS: All right. Again, Detective, tell the jury which

of these messages come from Adam Yurkewicz and which of

them go to the number identified as Louis.

HARDNER: Adam Yurkewicz is the blue messages, and the

Louis phone number is the one in yellow.
J-S75004-19

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MR. SELLERS: And can you read them for us?

HARDNER: Yes. Adam says, yo. The guy responds, sup.

He says, WYA, where you at. He says, over east. He says,

on my way.

MR. SELLERS: Next slide.

HARDNER: What you needed? He responds, 60. Where

should I go, then question mark. Bout to be on the east.

He responds, 25 German.

MR. SELLERS: Next slide.

HARDNER: He says, K. Be like 10 to 15. How much for the

half. He says, 80 bro. Then, K.

MR. SELLERS: Next slide.

HARDNER: Then, give me that. He says, yup. He says, bout

to pull up. He says, okay. Here. Then, 24 German between

Parade.

. . . . MR. SELLERS: Can you read that for us?

HARDNER: K. Here. And then, you good bro.

Pings to cell phone towers from Yurkewicz’s cell phone placed

Yurkewicz in the area of 24th and German Streets at

approximately the same time he received the text messages from

9983 directing him to meet there for the transaction.

During the afternoon of January 5, 2018, Detective Hardner texted

9983 from a random telephone number generated by a special

application on Detective Hardner’s cell phone in an effort to set up

a drug transaction with the person who was using the cell phone

associated with 9983. Detective Hardner received a telephone call

from a male calling from 9983. Further texting between Detective

Hardner and 9983 ensued but Detective Hardner was unsuccessful

in setting up a drug transaction.

On January 6, 2018, after learning Yurkewicz died, Detective

Hardner used Yurkewicz’s cell phone in another attempt to reach

9983. The content of the text messaging of January 6, 2018

between Detective Hardner, from Yurkewicz’s cell phone, and the

person who was using the cell phone associated with 9983 was

introduced into evidence as Commonwealth Exhibit 12. Detective

Hardner testified concerning these texts as follows:

MR. SELLERS: Okay. Can you read for the jury these text

message conversations, and indicate which ones are from

you and which ones are from the other number?
J-S75004-19

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HARDNER: I’m sending the blue messages, and the

messages on the other end are the yellow.

HARDNER: I texted, yo. He responded, sup. I said, got 100

just waiting for a ride. He said, okay bro. I said, ready

where should I go.

MR. SELLERS: All right. Next slide.

HARDNER: He said, okay what you got bro. I said 100. And

then when I didn’t have a response, I sent a question mark.

And then he said, meet me on 24. I said, K, and then, pulling

up.

MR. SELLERS: Next slide.

HARDNER: Then I said, I’m in my step-mom’s blue truck.

Consistent with the above texts, Detective Hardner drove to East

24th Street between German and Parade Streets in a blue

undercover vehicle and pulled over to the side of the road.

Several back-up officers were stationed in vehicles nearby. A

white Audi was observed traveling west along East 24th Street in

the same block where Detective Hardner was parked. The Audi

pulled over and Appellant, the front-seat passenger, exited the

Audi and entered a residence at 344 East 24th Street, later

learned to be Appellant’s mother’s residence. [Appellant resided

next door at 348 East 24th Street.] Appellant returned to the Audi

a few minutes later and got into the front passenger seat. The

vehicle operator drove the Audi further west along 24th Street,

passing Detective Hardner’s blue vehicle, and pulled over a few

car-lengths ahead of Detective Hardner’s vehicle. At this time,

Detective Hardner received a telephone call on Yurkewicz’s cell

phone from 9983. The male caller instructed Detective Hardner

to exit the vehicle and come over to the “white car”. Detective

Hardner notified the back-up officers who then approached the

white Audi.

From the front of the Audi, Detective Fiorelli, one of the back-up

officers, observed through the front windshield Appellant leaning

forward in the passenger seat “making furtive movements with

his arms towards the floorboards of the front passenger’s seat.” Appellant and the driver, Javar Beason, were arrested. Detective

Fiorelli observed a white powdery substance on the right leg of

Appellant’s black sweatpants, which Appellant kept trying to brush

off. Detective Fiorelli observed on the floor mat on the front

passenger side a chunky substance with powder residue on top.

The substances on the floor mat were collected for analysis which

revealed the substances contained heroin and fentanyl. During

the search of the vehicle, Detective Fiorelli located a folded-up

piece of white paper, torn from a larger piece of paper, which had

been folded over several times with creases in it. Detective Fiorelli

testified this was a very common way of packaging heroin or

fentanyl. Detective Fiorelli recovered an iPhone in a red and black
J-S75004-19

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case from a cupholder in the center console between the driver’s

and passenger’s seats. During the search of Appellant, the police

found a wallet containing $65.00 in U.S. currency, Appellant’s ID,

a cell phone, and another $1,020.00 in U.S. currency “in a stack.” During the search of Beason, the police recovered $70.00 and

Beason’s cellphone.

The items recovered during the searches were brought to the

police station. There, Detective Hardner called 9983 from his

personal cell phone whereupon the iPhone in the red and black

case rang. Detective Hardner determined this iPhone was the cell

phone associated with 9983, the same number which Detective

Hardner had engaged in communication with from Detective

Hardner’s cell phone on January 5, 2018 and from Yurkewicz’s cell

phone on January 6, 2018.

At trial, the Commonwealth witness Detective Styn testified

regarding Verizon call and text records from 9983. Detective Styn

confirmed the report from Verizon included text message

exchanges between 9983 and unidentified third parties on January

5 and January 6, 2019.

Detective Fiorelli testified from Verizon records as to the contents

of these text message exchanges. The texts described other drug

transactions with 9983, some set up to occur in the vicinity of 24th

and German Streets. The texts clearly contained references to

the use and exchange of narcotics. Commonwealth witness

Detective Benacci, an expert witness in drug transactions and

sales, testified the texts between 9983 and third parties and

between 9983 and Yurkewicz were evidence of drug dealing.

Detective Fiorelli also testified about a text exchange of a personal

nature between 9983 and a third party during the relevant

timeframe. In the texts, the third party addressed Appellant by

name, “Dion,” and 9983 responded “sup.”

Trial Court Opinion, 4/8/19 at 1-8 (footnotes and record citations omitted).

Appellant was arrested and charged with drug delivery resulting in death,

PWID (fentanyl), possession of drug paraphernalia, possession

(heroin/fentanyl), tampering with or fabricating physical evidence, PWID

(heroin and/or fentanyl) and criminal use of communication facility.2

Following a multi-day trial, a jury found Appellant guilty of only PWID (heroin

____________________________________________

2 18 Pa.C.S.A. § 2506, 35 P.S. § 780-113(a)(30) and (16), 18 Pa.C.S.A. §

4910(1), 35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 7512(a), respectively.
J-S75004-19

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and/or fentanyl), tampering with or fabricating physical evidence, and criminal

use of communication facility. On December 21, 2018, the trial court

sentenced Appellant to an aggregate term of 50 to 107 months and 15 days

in prison. Appellant filed post-sentence motions, which the trial court denied

on January 2, 2019. Appellant timely appealed. On February 4, 2019, the

trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement within 30

days. Appellant complied.3In response, the trial court issued a detailed

Pa.R.A.P. 1925(a) opinion. On June 6, 2019, upon Appellant’s application, we

remanded this case to the trial court to permit Appellant to amend his Rule

1925(b) statement. In his amended Rule 1925(b) statement, Appellant

challenged the sufficiency of the evidence underlying his convictions. On

August 15, 2019, the trial court issued a supplemental Rule 1925(a) opinion

addressing Appellant’s sufficiency claims. On appeal, Appellant presents three issues for our review.

[I.] Whether the trial court committed an abuse of discretion

and/or error of law in admitting the text messages received by

and sent from the cell phone recovered from the white Audi in

violation of Commonwealth v. Koch[, 106 A.3d 705 (Pa. 2014)]

as they were not properly authenticated?[4]

____________________________________________

3 He filed his Rule 1925(b) statement on February 28, 2019, well within the

30-day deadline established by the trial court’s February 4, 2019 order.

4 We have explained:

Our standard of review over evidentiary rulings requires us to

determine whether the trial court abused its discretion. An abuse

of discretion may not be found merely because an appellate court

might have reached a different conclusion, but requires a result of
J-S75004-19

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[II.] Whether the Commonwealth failed to present sufficient

evidence to find Appellant guilty beyond a reasonable doubt of

PWID, tampering with/fabricating physical evidence, and criminal

use of communication facility?[5]

[III.] Whether Appellant’s claims on appeal should be

dismissed/quashed due to the fact that Appellant filed an untimely

1925(b) statement?[6]

Appellant’s Brief at 3 (unnecessary capitalizations omitted). ____________________________________________ manifest unreasonableness, or partiality, prejudice, bias, or ill- will, or such lack of support so as to be clearly erroneous.

Commonwealth v. Henkel, 938 A.2d 433, 440 (Pa. Super. 2007) (internal

citations omitted), appeal denied, 955 A.2d 356 (Pa. 2008).

5 “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

The standard we apply in reviewing the sufficiency of the evidence

is whether viewing all the evidence admitted at trial in the light

most favorable to the verdict winner, there is sufficient evidence

to enable the fact-finder to find every element of the crime beyond

a reasonable doubt. In applying the above test, we may not weigh

the evidence and substitute our judgment for the fact-finder. In

addition, we note that the facts and circumstances established by

the Commonwealth need not preclude every possibility of

innocence. Any doubts regarding a defendant’s guilt may be

resolved by the fact-finder unless the evidence is so weak and

inconclusive that as a matter of law no probability of fact may be

drawn from the combined circumstances. The Commonwealth

may sustain its burden of proving every element of the crime

beyond a reasonable doubt by means of wholly circumstantial

evidence. Moreover, in applying the above test, the entire record

must be evaluated and all evidence actually received must be

considered. Finally, the finder of fact while passing upon the

credibility of witnesses and the weight of the evidence produced,

is free to believe all, part or none of the evidence.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014), appeal

denied, 95 A.3d 275 (Pa. 2014).

6 As noted in the text, Appellant filed a timely Rule 1925(b) statement and, as

a result, we need not decide his third issue on appeal.
J-S75004-19

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After careful review of the record and the relevant case law, we conclude

that the trial court accurately and thoroughly addressed the merits of

Appellant’s issues on appeal. See Trial Court Opinion, 4/8/19, at 10-21;

Supplemental Opinion, 8/15/19 at 2-8. With respect to Appellant’s first issue,

we conclude that the trial court did not abuse its discretion in overruling

Appellant’s authentication challenge7 and admitting into evidence the text

messages recovered from the cell phone in the white Audi. As the trial court

concluded:

There was sufficient testimony from witnesses with knowledge

demonstrating the cell phone was what it was purported to be – Appellant’s cell phone. Detective Fiorelli testified that the iPhone

in the red and black case was recovered next to Appellant’s seat

in the vehicle, and the iPhone was connected to the number 9983.

There was significant contextual clues and circumstantial evidence

corroborating that Appellant was the author of the text messages

at issue. This included: the texts between Yurkewicz and 9983 .

. .; the contents of texts between third parties and 9983 using

slang terms consistent with drug dealings, where 9983 set up the

location for the transaction in areas near Appellant’s home; and

third party texts identifying Appellant by name to which he

responded affirmatively. Most significantly, at the time and place

of the undercover drug deal between the author of texts from

9983 and Detective Hardner, Appellant arrived in a white Audi in

possession of heroin and fentanyl.

Trial Court Opinion, 4/8/19 at 14. Relating to Appellant’s sufficiency

challenges, we agree with the trial court’s conclusion that, based upon the

record evidence viewed in a light most favorable to the Commonwealth as the

verdict winner, the Commonwealth proved beyond a reasonable doubt that

Appellant committed PWID, tampering with or fabricating physical evidence,

____________________________________________

7 “Authentication generally entails a relatively low burden of proof.” Koch, 106 A.3d at 713.
J-S75004-19

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and criminal use of communication facility. Accordingly, we affirm the trial

court’s December 21, 2018 judgment of sentence. We further direct that a

copy of the trial court’s April 8, 2019 and August 15, 2019 opinions be

attached to any future filings in this case.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/17/2020
Circulated 02/27/2020 02:04 PM

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IN 1HE COURT OF COMMON PLEAS 

OF ERIE COUNTY, PENNSYLVANIA 

CRIMINAL DMSION 

NO. 697 -2018 

v .. 

OPINION 

COMMONWEAL1H OF PENNSYLVANIA 

DIONELUAHWAYNE 

This matter is before the Court on Appellant's 192S(b) Concise Statement of Matters 

Complained of on Appeal. For the reasons set forth below, the judgment of scntmce should be 

affirmed.

1 

FACTUAL BACKGROUND 

On January S, 2018, Adam Yurkewicz's grandmother found Yurkewicz UDCODSCious in 

the bathroom of her residence at 815 Michigan Avenue, Erie, Pennsylvania. Tramcript of 

Proceedings, Day 2, November 14, 2018 (l'r. Day 2).pp. 70-77. The gnmdmotber telephoned 

911 and the Millcreek Township Police were dispatched to the residence. Tran.tcrlpt of 

Proceedings, Day 1, November 13, 2018 (l'r. Day 1) pp. 117-120. Detective Ryan PJeSDer 2 

was the first police officer to arrive at the scene. Upon arrival, Detective Prcsner observed 

Yurkewicz on the floor. Yurkewicz had a ''bluish-purple tint" and was surrounded by 

firefighters who were checking for a pulse. Tr. Day 1, p. 118. Presner also obsened a partially 

loaded syringe in the bathroom sink. Tr. Day 1, pp. 120-127. 

1 The Honorable William R. Cunningham presided at the jury bia1, sentmced Appellant, IDd issued 1be 1925(1,) 

Order. Judge Cunningham also addressed the post-sentence motion. Due to lhe recent remwae:m or Judee 

Cunningham, this matter was reassigned to the undersigned for pieparmoo. oflhe 192S(a) Opinion. 

2 Detective Presner was employed by the Millcreek Township Police Depmtment as a patrol officer ll lhe time. 
a. Discovery of Adam Yurkewic:.'s cell pl,one-Janary S, 2011 

Yurkewicz was placed in an ambulance where Presner went through Yurkewicz's 

pockets and recovered a cell phone and a pack of cigarettes which contained a folded-up piece of 

paper holding a white, chalky substance. Tr. Day l, pp. 128-131. Yurtewicz was tnmspolted to 

UPMC Hamot Hospital where he died early the following mofflin& on January 6, 2018. It was 

determined Yurkewiczdiedfromanoverdoseoffentanyl. See Tr. Day l,pp. 150-181. 

Presner turned over Yurkewicz's cell phone to Detectives Hanlner and Fion:lli of the 

Special Investigations Unit of the Millcreek Police Department when they arrived at the scene. 

Tr. Day 1, pp. 130-131. Detective Hardner examined the call log and text messages on lhc ccll 

phone to determine whether a transaction involving drugs had occurred. Tr. Day l, p. 184. He 

read text messages exchanged during the morning of January 5, 2018 between Yurkcwicz's cell 

phone and the telephone number "814-449-9983" (hereinafter 9983). Tr. Day l, pp. 184-185. 

Detective Hardner found 9983 was entered in Yurkewicz's contact information under the name 

"Louis". Tr. Day 1, p. 232. Based upon the content of these messages and Dcta:ti� Hardner's 

experience in narcotics investigations, he determined 9983 was a "phone nmnber of intaat' 

with regard to the investigation surrounding Ymkewicz's death. Detective Anne Styn exlnlded 

contents of the cell phone including the text messages, call logs, photographs, a web history, 

Facebook and Snapchat accounts associated with Yurkewicz, and a Gmail account with the email 

address Yurks42589. Tr. Day 2, p. 131. 

b. Communications sent from and received on Ylll'UWicz'.s cdJ pl,ow - J .. _,, S, 2111 

At trial, the Commonwealth presented testimony from Yurkewicz's fiancce, Kayla Turk. 

Tr. Day 2, pp. 106-119. Turk was familiar with Yurtewicz's cell phone and testified she was 

present when Yurkewicz was sending text messages from his cell phone the morning of Janmry 

2 
5, 2018. Tr. Day 2, pp. 111-112; 116-117. Turk also identified Commonwealth Exhibit 18 as a 

list of personal text messages between herself and Yurlcewicz on January 5, 2018. Tr. Day 2, pp. 

111-114. The Commonwealth's witness Marlene Yurkewicz, the decedent's gnmdmotbcr, 

testified as to calls she made to Yurkewicz's cell phone on January 5, 2018, that had been 

recovered in Yurkewicz's cell phone records. Tr. Day 2, pp. 75-76; 134. 

At trial, Detective Hardner testified concerning Commonwealth Exhibit 13, a 

transcription of text messaging between Yurkewicz's cell phone and 9983, the aforanmtioncd 

number of interest, from the morning of January 5, 2018. Tr. Day 1, p. 232. Deteclive Hardncr 

testified these texts were highly indicative of drug dealing. Detective Hanlner tcstificd about lhc 

content of the text messages as follows: 

MR. SELLERS: All right. Again, Detective, tell the jury which of these 

messages come from Adam Yurkewicz and.which of them go to the number 

identified as Louis. 

HARDNER: Adam Yurkewicz is the blue messages, and the Louis phone 

number is the one in yellow. 

MR. SELLERS: And can you read them for us? 

HARDNER: Yes. Adam says, yo. The guy responds, sup. He says, WY�

where you at. He says, over east. He say� on my way. 

MR. SELLERS: Next slide. 

HARDNER: What you needed? He responds, 60. Where should I go, then 

question mark. Bout to be on the east. He responds, 25 German. 

MR. SELLERS: Next slide. 

HARDNER: He says, K. Be like 10 to l 5. How much for the half. He says, 

80 bro. Then, K. 

MR. SELLERS: Next slide. 

HARDNER: Then, give me that. He says, yup. He says, bout to pull up. He 

says, okay. Here. Then, 24 German between Parade. 

3 
MR. SELLERS: Can you read that for us? 

HARDNER: K. Here. And then, you good bro. 

Tr. Day 1, pp. 232-234. 

Pings to cell phone towers from Yurkewicz's cell phone placed Yurkewicz in the ma of 

24th and German Streets at approximately the same time he received the text messages 6om 9983 

directing him to meet there for the transaction. Tr. Day 1, pp. 232-234; Tr. Day 2, pp. 226-227. 

c. Communications between Detective Hartbtn's cdl pl,oM (fro,,, 11 ,.....,,, 

generated number) and "9983" - January 5, 2018 

During the afternoon of January 5, 2018, Detective Hanmer texted 9983 from a random 

telephone number generated by a special application on Detective Hardner's cell phone in an 

effort to set up a drug transaction with the person who was using the cell phone associa1cd with 

9983. Tr. Day l, pp. 185-188. Detective Hardner received a telephone call from a male caDing 

from 9983. Further texting between Detective Hardner and 9983 ensued but· Detective Hamner 

was unsuccessful in setting up a drug transaction. 

ti. Communications between Yurkewicz's all pl,OM (lltilizd by Ddtdhe 

Har,Jner) and "9983" - January 6, 2018 

On January 6, 2018, after learning Yurkewicz died, Detective Hanlner used Ywkewicz:r 

cell phone in another attempt to reach 9983. Tr. Day l, pp. 189-191. The content of the text 

messaging of January 6, 2018 between Detective Hardner, from Yurkewicz

9

s cell phone, and the 

person who was using the cell phone associated with 9983 was introduced into evidence as 

4 
Commonwealth Exhibit 12. Tr. Day 1, p. 201. Detective Hardner testified cona:ming 1hcsc 

texts as follows: 

MR. SELLERS: Okay. Can you read for the jury these text message 

conversations, and indicate which ones are from you and which ones an: from 

the other number? 

HARDNER: I'm sending the blue messages, and the messages on the other 

end are the yellow. 

HARDNER: I texted, yo. He responded, sup. I said, got 100 just waibng for a 

ride. He said, okay bro. I said, ready where should I go. 

MR. SELLERS: All right. Next slide. 

HARDNER: He said, okay what you got bro. I said l 00. And then when I 

didn't have a response, I sent a question mark. And then he said, meet me on 

24. I said, K, and then, pulling up. 

MR. SELLERS: Next slide. 

HARDNER: Then I said, I'm in my step-mom's blue truck. 

Tr. Day 1, pp. 201-202. 

e. Recovery of the cell phone associated with tl,e •lllllber "fflJ" - Ja,,.,., 6, 

2018 

Consistent with the above texts, Detective Hamner drove to East 24111 Street bctwi,ea 

German and Parade Streets in a blue undercover vehicle and pulled over to the side of the road. 

Tr. Day 1, pp. 191-197. Several back-up officers were stationed in vehicles nearby. Tr. Day J, p. 

194. A white Audi was observed traveling west along East 24111 Street in the same block where 

Detective Hardner was parked. Tr. Day 1, pp. 195-196; Tr. Day 2, pp. 13-14; 151-152. The 

Audi pulled over and Appellant, the front-seat passenger, exited the Audi and enten:d a ICSidmce 

at 344 East 24th Street, later learned to be Appellant's mother's residence.

3 Appelhmt retumc:d to 

3 The police later learned Appellant resided next door to his mother at 348 East 246 S1reet with his pmdmodrcr. n-. Day 2, pp. 246-247. 

5 
the Audi a few minutes later and got into the front passenger seat. The vehicle opcndur drove 

the Audi further west along 24th Street, passing Detective Hardner's blue vehicle, and pulled 

over a few car-lengths ahead of Detective Hardner's vehicle. Tr. Day J, p. 195. At this�

Detective Hardner received a telephone call on Yurkewicz's cell phone tiom 9983. Tr. Day I, p. 

196. The male caller instructed Detective Hardner to exit the vehicle and come over to the 

''white car". Tr. Day 2, pp. 189-197. Detective Hardner notified the back-up officers who then 

approached the white Audi. 

From the front of the Audi, Detective Fiorelli, one of the back-up offi� observed 

through the front windshield Appellant leaning forward in the passenger seat "making furtive 

movements with his arms towards the floorboards of the front passenger's seat." Tr. Day 2. p. 

153-154. Appellant and the driver, Javar Beason, were arrested. Detective Fiorelli observed a 

white powdery substance on the right leg of Appellant's black sweatpants, which Appellant kept 

trying to brush off. Tr. Day 2, p. 156. Detective Fiorelli observed on the floor mat on the ftont 

passenger side a chunky substance with powder residue on top. The subscances on the floor mat 

were collected for analysis which revealed the substances contained heroin and fmtanyl. Tr. Day 

2, pp. 233-235. During the search of the vehicle, Detective Fiorelli located a folded-up piece of 

white paper, tom from a larger piece of paper, which bad been folded over several times with 

creases in it. Detective Fiorelli testified this was a very common way of p,ckaging heroin or 

fentanyl. Tr. Day 2, pp. 15 7-161. Detective Fiorelli recovered an iPhone in a red and black case 

from a cupholder in the center console between the driver's and passenger's seats. Tr. Day 2, pp. 

162-164. During the search of Appellant, the police found a wallet containing S6S.OO in U.S. 

currency, Appellant's ID, a cell phone, and another $1,020.00 in U.S. cunmcy "in a stack." Tr. 

6 
Day 2, pp. 164-166. During the search of Beason, the police recovered $70.00 and Bcason's 

cellphone. Tr. Day 2, pp.39-40; 164. 

The items recovered during the searches were brought to the police station.. There, 

Detective Hardner called 9983 from his personal cell phone whereupon the iPbone in the red and 

black case rang. Tr. Day 2, pp. 166-167. Detective Hardner detennined this iPbone was the cell 

phone associated with 9983, the same number which Detective Hanlner bad c:ngagt"J1 in 

communication with from Detective Hardner's cell phone on January S, 2018 and from 

Yurkewicz's cell phone on January 6, 2018. Tr. Day J, p. 167. 

f. Communications between "9983" and 1111ukntijkd tJ,irtJ partia - Ja_,, S 

and January 6, 2018 

At trial, the Commonwealth witness Detective Styn testified iegarding Vcrimn call and 

text records from 9983. Tr. Day 2, pp. 121-129. Detective Styn con.fumed the ieport from 

Verizon included text message exchanges between 9983 and unidentified third parties on January 

5 and January 6, 2019. 

Detective Fiorelli testified from Verizon records as to the contents of dlCSe text message 

exchanges. Tr. Day 2, pp. 168-186. The texts described other drug transactions with 9983, some 

set up to occur in the vicinity of 24th and German Streets. The tex1s clearly contained references 

to the use and exchange of narcotics. 

4 Commonwealth witness Detective Bmacci, an expert 

witness in drug transactions and sales, testified the texts between 9983 and thud parties and 

between 9983 and Yurkewicz were evidence of drug dealing. 7r. Day 2, pp. 251-293. Dcteclive 

Fiorelli also testified about a text exchange of a personal nature between 9983 and a dmd party 

4 See Tr. Day 2, pp. 178-179 and Commonwealth Exhibit 28; Tr. Day 2, pp. 183-186 and Coio11iOll"Clbb Exhibit 

30 

7 
during the relevant timeframe. In the texts, the third party addressed Appellant by name, "Dion," 

and 9983 responded "sup." 5 

PROCEDURAL BACKGROUND 

Following his arrest, Appellant was charged · with Drug Delivery Resulting in �

Possession With Intent to Deliver (fentanyl), Possession of Drug Paraphcmalia, Possession 

(heroin and/or fentanyl), Tampering With or Fabricating Physical Evidence, Possession With 

Intent to Deliver (heroin and/or fentanyl) and Criminal Use of Communication Facility. 

6 

On November 15, 2018, following a three-day jwy trial, Appellant was convicted of: 

Tampering With or Fabricating Physical Evidence, Possession With Intent to Deliver (heroin 

and/or fentanyl) and Criminal Use of Communication Facility.

7 

On December 21, 2018, Appellant was sentenced to an aggregate period of SO - 107 

months and 15 days of incarceration as follows: 

Count Five: Tampering With or Fabricating Physical Evidence - 8 months 

to 23 months and 15 days of incarceration, consecutive to Count Seven. 

Count Six: Possession With Intent to Deliver (heroin and/or fentanyl) - 21 

months to 54 months of incarceration, consecutive to any other sentr:nce 

currently being served. 

Count Seven: Criminal Use of Communication Facility- IS months to 30 

months of incarceration, consecutive to Count Six. 

On December 27, 2018, Appellant filed a post-sentence motion and a Petition to 

Withdraw as Counsel. The Court denied the post-sentence motion on Janumy 2, 2019. On 

January 23, 2019, Appellant filed a Notice of Appeal. On February 4, 2019, the Court dirc:ctcd 

5 See Tr. Day 2, pp. 172-175 and Commonwealth Exhibit 27 

6 18 Pa.C.S.A. § 2506; 35 Pa.C.S.A. §780-113(a)(30); 3S Pa.C.S.A. §780-113(aX16); 18 Pa.C.S.A. §4910(1); 35 

Pa.C.S.A. §780-113(a)(30); and 18 Pa.C.S.A. § 7S12(a), respectively. 

7 18 Pa.C.S.A. §4910(1); 35 Pa.C.S.A. §780-113(a)(30); and 18 Pa.C.S.A. § 7S12(a), aespeaively. 

8 
Appellant to file a l 925(b) Statement of Matters Complained of on Appeal within 21 days. 

Appellant filed a Statement of Matters Complained of on Appeal on February 28, 2019.1 

Concurrently, Appellant's counsel filed another Petition to Withdraw a Counsel. On March 11, 

2019, the Court granted the Petition to Withdraw and directed Appellant to oblain new legal 

counsel or act as his own counsel for any future proceedings. 

Paraphrased, Appellant's Statement of Matters Complained of OD Appeal identifies the 

following issues: 

1. Whether evidentiary error occurred in: 

a) admitting into evidence text messages sent to and from the cell 

phone of decedent, Adam Yurkewicz; 

b) admitting into evidence text messages sent to and &om the cell 

phoneAppellantused;and 

c) "refusing to admit Defendant's 'Exhibit B' text messages" &om a 

third party to decedent's cell phone. 

2. Whether there was sufficient evidence for the jury to convict at Count 

Seven, Criminal Use of Communication Facility. 

3. Whether the Court "failed to hold a proper bearing on the Defendant's 

Motion in Limine." 

DISCUSSION 

I. Untimely 1925(b) Statement 

Appellant has waived review of the appellate claims as the I 925(b) Statanc:nt was 

untimely. The Court issued a 1925(b) Order on February 4, 2019, directing Appellant to file and 

serve a 1925(b) Concise Statement of Matters Complained of on Appeal within 21 days. This 

was not done. Appellant's Statement of Matters Complained of OD Appeal was not filed IDdil 

February 28, 2019. The claims are waived. 

8 The 1925(b) Statement was due for filing on Monday, February 25, 2019. 

9 
Under the Pennsylvania Rules of Appellate Procedure, a Judge is permitted to grant an 

extension of time to file a Statement "(u]pon application of the appellant and for good cause 

shown". Pa.R.A.P. 1925(b)(2). To preserve claims for appellate review, Appellants must comply 

whenever the trial court orders them to file a Statement of Matters Complained of on Appeal 

pursuant to Rule 1925 or the result is automatic waiver. See Commonwealth v. Lord. 719 A.2d 

306, 309 (Pa. 1998); also Commonwealth v. Castillo. 888 A.2d 775 (Pa. 2005). Here, the 192S(b) 

was untimely and no request to extend the time for filing was submitted to the Court. Tberefift, 

the issues raised in Appellant's Statement of Matters Complained of on Appeal are waived. 

Pa.R.A.P. 1925(b); Hess v. Fox Rothschild, LLP, 925 A.2d 798, 804 (Pa. Super. 2007). 

Assuming arguendo there is no waiver due to the untimely I 92S(b) S�the is.,ues 

raised in Appellant's 1925(b) Statement shall be addressed ad seriatim. 

Il. Claims of Evidentiary Error 

Appellant makes multiple claims of evidentiary error regarding the Comt's rulinp on the 

admissibility of certain text message exchanges. See 1925(1,) Statement, 11 I, 2 and J. 

Appellant's claims are meritless. 

A. Relevant Legal Principles 

Except as otherwise provided by law, all relevant evidence is admissible. Pa.R.E. 402. 

The threshold inquiry with admission of evidence is whether the evidence 

is relevant. Evidence is relevant if it logically tends to establish a mataia1 

fact in the case, tends to make a fact at issue more or less probable, or 

supports a reasonable inference or presmnption regarding the existmcc of 

a material fact. In addition, evidence is only admissible where the 

probative value of the evidence outweighs its prejudicial impact. 

10 
Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (internal citations and quotation 

marks omitted). Evidence is not unfairly prejudicial simply because it may be harmful to the 

defendant's case. Id. 

Also, as appropriate, evidence must be properly authenticated. "(T]he proponent must 

produce evidence sufficient to support a finding that the item is what the proponent claims it is." 

Pa.R.E. 901(a). This can include testimony by a witness with knowledge of the item that the item 

is what it is claimed to be. Pa.R.E. 901 (b )( 1 ). 

Text messages may be authenticated by: (1) testimony of the author or sender; (2) 

circumstantial evidence, including distinctive characteristics tending to identify the IIUlbor or 

sender or references to events preceding or following the messages; or (3) any other facts or 

aspects of the messages that signify they are what the proponent claims them to be. 

Commonwealth v. Mu"ay, 174 A.3d 1147, 1156-57 (Pa. Super. 2017), appeal dt!ni«.I, 187 A.3d 

204 (Pa. 2018); see also Pa.R.E. 901. 

1. Text messages sent from and received on Yarkewkz'1 c:ell phone 

First, Appellant claims it was error to admit text messages dated January S, 2018 which 

were sent from and received on Yurkewicz's cell phone, which was assigned the number 814- 

520-3540.9 Appellant claims error occurred because "the Commonwealth was unable to 

authenticate the text messages ... as they were unable to prove the author(s) of the text messages 

sent from ... [and) received by cell #814-520-3540. 1925(b) Stalement, 11. 

Appellant's first claim of evidentiary error is waived as vague. If not waived, AppeUhmt9

S 

evidentiary claim is wholly without merit. Assuming arguendo error occurred, it was barmles., 

error. 

9 It is undisputed the decedent, Adam Yurkewicz, was the owner of the cell phone associaled with 1be IIIDbel' 114- 

520-3540. 1r. Day I, p.22. 

11 
Appellant's evidentiary claim is waived as vague. In the 1925(b) Statcmcot, Appellant 

only provides Yurkewicz's cell phone number with no context or reference to specific enoa in 

the record. A concise statement which is too vague to allow the comt to identify the issues 

raised on appeal is the functional equivalent of no concise statement at all. CotnlllOR'Wealth v. 

Reeves, 907 A.2d I, 2 (Pa.Super. 2006), appeal denied, 919 A.2d 956 (Pa. 2007). The court's 

review and legal analysis can be fatally impaired when the comt has to guess at the issues raised. 

Id If a concise statement is too vague, the court may find waiver. Id Appellant's claim of 

evidentiary error is not specific enough for the Court to adequately add.reM, and tben:fore the 

claim is waived as vague. 

If this claim is not waived for vagueness, Appellant's claim is without merit. Any claim 

that text messages sent from and received by Y urkewicz' s cell phone were not properly 

authenticated must fail. There was more than sufficient testimony from wimesses with 

knowledge demonstrating the cell phone was what it was purported to be - Yurkewicz's cell 

phone. This included testimony from Yurkewicz's fimde, Kayla Turk, who confinned text 

exchanges between herself and Yurkewicz on January 5, 2018 and Yurkewicz's gnmdmothcr, 

Marlene, who confirmed the phone calls she and Yurkewicz had the morning of January S, 2018; 

testimony from Detective Presner that he had recovered the cell phone at issue from Ymkewicz's 

pocket; and testimony from Detective Styn regarding the data, including personal social media 

accounts and email associated with Y urkewicz, extracted from the cell phone. 

Also, there was significant circumstantial evidence corroborating that not only was it 

Yurkewicz' s cell phone, but that Yurkewicz was indeed the author of the text messages at issue. 

This included evidence, previously discussed herein, of text messages with 9983 indicative of a 

drug transaction and pings from Yurkewicz's cell phone putting him in the area of 24

1111 and 

12 
German when the deal with Appellant was set to occur. When Yurkewicz's body was found, a 

loaded syringe was found in the nearby sink and a packet of fentanyl was found in bis pocket. 

The circumstantial evidence sufficiently identifies Yurkewicz as the author of the text musagcs 

based on the references to the events preceding and following the text messages and the 

surrounding facts of the case. The text messages sent from and received on Ymtewicz's cell 

phone were properly authenticated and there was no error in their admission. Appellant's claim 

of error must be dismissed. 

Assuming arguendo the text messages on Yurkewicz's cell phone were not properly 

authenticated, it was harmless error to admit them. A primary pmpose in introducing the text 

messages from Yurkewicz's cell phone was to establish a line of communication between 

Appellant and Yurkewicz, linking Appellant to Yurkewicz's death. Appellant was acquitted of 

the charge relating to Yurkewicz's death, Count One - Drug Delivery Resulting in Death. Also, 

Appellant was acquitted of the following charges arising from alleged activities of Jammy S, 

2018: Count Two - Possession With Intent to Deliver (fentanyl), Count Three - Posseaion of 

Drug Paraphernalia. and Count Four - Possession (heroin/fentanyl). Therefore, the identity of 

the author of text messages on Yurkewicz's cell phone is of no consequence and no JR.iudice 

occurred to Appellant by their admission. 

2. Text messages sent from and received on the ceD p•one woeiated 

with 9983. 

Second, Appellant claims it was error to admit text messages dated January S, 2011 and 

January 6, 2018 which were sent from and received on a cell phone with a number ofl14-449-- 

9983. Appellant claims error occurred because ''the Commonwealth was unable to authc:nticalc 

the text messages . . . as they were unable to prove the author(s) of the text messages sent from 

... [and] received by cell# 814-449-9983." 1925(b) Stalement. 112. 

13 
Appellant's second claim of evidentiary error is also waived as vague. Further. 

Appellant's evidentiary claim is wholly without merit 

Appellant's claim is waived as vague. Appellant's 192S(b) Statement docs not identify 

where the specific issues complained of regarding the cell phone number 8 I 4-449-9983 are 

found in the record or their significance in the outcome of the case. Appellant�s claim of 

evidentiary error is not specific enough for the Court to adequately address, and tbeftfore the 

claim is waived as vague. See Pa.R.A.P. 1925(b); Commonwealth v. Reeves, 907 A.2d at 2. 

Assuming arguendo the claim is not waived as vague, the assertion the text messages 

sent from and received by 9983 were not properly authenticated is meritless. Thete was 

sufficient testimony from witnesses with knowledge demonstrating the cell phone was what it 

was purported to be - Appellant's cell phone. Detective Fiorelli testified that the iPbonc in the 

red and black case was recovered next to Appellant's seat in the vehicle, and the i.Phone was 

connected to the number 9983. There were significant contextual clues and circumsaantial 

evidence corroborating that Appellant was the author of the text messages at issue. This 

included: the texts between Yurkewicz and 9983 and the ci.reumstances surrounding 

Yurkewicz's death discussed above; the contents of texts between thiJd parties and 9983 using 

slang terms consistent with drug dealing, where 9983 set up the location for the 1rBDsadions in 

areas near Appellant's home; and third party texts identifying Appellant by name to which be 

responded affirmatively. Most significantly, at the time and place of the undercover drug deal 

between the author of texts from 9983 and Detective Hard.Der, Appellant arrived in a whi1e Audi 

in possession of heroin and fentanyl. 

Applying the relevant legal principles, the totality of the evidence was mon: than 

sufficient to identify Appellant as the author of the text messages from 9983 based on the 

14 
references to the events preceding and following the text messages and the surrounding .as of 

the case. The circumstantial evidence established Appellant authored the texts &om 9913. The 

texts were properly authenticated and there was no error in their admission. Appellant's claim of 

error must be dismissed. 

Appellant asserts the cases of Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011). 

ajj'd, 106 A.3d 705 (Pa. 2014), and Commonwealth v. Mangel, 181 A.3d 1154, 1159 (Pa. Super. 

2018) require a different conclusion. Appellant's assertions are unpersuasive. In Koc� on an 

issue of first impression, the Pennsylvania Superior Cowt considered what was required to 

authenticate text messages. Commonwealth v. Koch, .39 A.3d at 1003. The Superior Court 

concluded text messages are documents subject to the same requirements for authenticity as nonelectronic documents. Koch at 1004. The Court determined such authentication rcquha mon: 

than mere confirmation that the number belongs to a particular person. Addilional 

"[c]ircwnstantial evidence, which tends to corroborate the identity of the sender, is n:quilm." 

Koch at 1005. In Koch, the Superior Court detennined text messages were admitted in error 

where the Commonwealth's witness acknowledged he could not confirm the defendant was the 

author of the texts and conceded the defendant did not write some of the messages. Notably, in 

Koch, there were no contextual clues tending to reveal the identity of the tllllhor and no nidena 

the defendant had written the text messages ("Glaringly absent in this case is any evidence 

tending to substantiate that Appellant wrote the drug-related text messages." Koch at I OOS). In 

the instant case, there was substantial circumstantial evidence pointing to Appellant as the author 

of texts from 9983. 

Mangel is largely inapplicable to the instant facts as it specifically concerned 

authentication of social media. Commonwealth v. Mangel, 181 A.3d at 1159. However, the 

15 
Court in Mangel applied the Superior Court's reasoning in Koch in detamining the 

authentication of social media evidence requires "direct or circumstantiaJ evidence that tends to 

corroborate the identity of the author of the communication in question, such as testimony &om 

the person who sent or received the communication, or contextual clues in the COllf1lf1lnical 

tending to reveal the identity of the sender." Mangel at .1162 ( emphasis added). Apin, the fads 

and holding of Mangel do not support Appellant's claims under the facts of the instant case. 

Appellant's claim must be dismissed. 

3. Contents of 'Exhibit B' and "Jake B." 

Appellant contends it was error to refuse ''to admit Defendant's 'Exhibit 8', text 

messages from 'Jake B' to the decedent's cell phone". Appellant appean to claim 'F.xlnmt B' 

would have "delineat[ed] a separate source ofillegaJ narcotics". 1925(b) Statement, 1 J. 

Appellant's claim is waived. Further, it lacks a factual basis. Assuming argueNlo the 

claim is not waived, no error occurred. 

The claim is waived as vague and underdeveloped. Appellant provides no ICfcrenccs to 

the record of any attempt to introduce 'Exhibit B' or the Court's ruling thereon. Appeliant fails 

to identify the significance of any such text messages other than to suggest they delinc::at.e a 

separate source of illegal drugs. Appellant fails to identify how any other source of illepl 

narcotics would have changed the outcome of this case. Appellant was acquitted of the charges 

relating to the death of Yurkewicz. The Court cannot adequately address this issue for leek of 

specificity. The claim is waived. Pa.R.A.P. 192S(b). 

Similarly, Appellant's claim that the Court refused to admit 'Exhibit B' is factually 

inaccurate and belied by the record Appellant provides no references to the record of any 

16 
attempt to introduce 'Exhibit B' or the Court's ruling thereon. 

10 

Even if 'Exhibit B' had been offered into the record and the Court refused its admission, 

there was no error. 'Exhibit B' contained excerpts from Detective Styo's report regarding the 

contents of Yurkewicz's cell phone. Initially, the Court did not permit Appellant to queslion 

Detective Styn about any text messages from "Jake B" on the basis of relevancy. Tr. Day 2. pp. 

134- 135. However, the Court subsequently permitted Appellant to question Detectiw Styn 

regarding 'Exhibit B' over the Commonwealth's objection: 

MR. HOPKINS: Detective, did you pull the information contained in 

Defendant's Exhibit B from the phone of Mr. Yurkewicz? 

DETECTIVE STYN: Yes. 

MS. ANGLIN: And Judge, I'm going to object to any reference to Defense's 

Exhibit B. We have no objection to Exhibit A, but B we do have a problem 

with. 

MR. HOPKINS: I haven't asked her to read from it or say anything more 

about it. Just that she did pull that information from the phone. 

THE COURT: That's fine, as it relates to that question. 

MR. HOPKINS: Thank you. 

Tr. Day 2, p. 136. 

The questioning regarding 'Exhibit B' continued: 

MR. HOPKINS: Okay, so looking at Defendant's Exhibit 8, are you able to 

tell us whether or not any additional messages that bad been deleted sdll - 

had been overwritten after the third of January? 

DETECTNE STYN: Is there a page number for that? I'm sorry. 

MR. HOPKINS: Well, the messages begin on the sixth page, but the question 

is, since all of the messages on Defendant's Exhibit B are IIIUked deleted 

- is that right? 

10 There is no indication in the record that 'Exlul>it B' was offered as an c:xlul>it or die Court rdbscd i1s m1am1ion. 

Tr. Day 2, pp. 132-142. 

17 
DETECTIVE STYN: Yes. 

MR. HOPKINS: -- are you able to tell us whether or not there WC1e further 

messages from the phone number listed in Defendant's Exhibit B after the 

third that were deleted, but didn't - weren't recoverable? 

DETECTIVE STYN: No, I would not be able to tell you that. 

MR. HOPKINS: So the phone conversation in this could've continued? 

DETECTIVE STYN: Correct. 

MR. HOPKINS: But based on the phone overwriting areas, we don't know? 

DETECTIVE STYN: Correct. 

MR. HOPKINS: Your Honor, I would again seek to go further. 

THE COURT: That's a matter of pure speculation. 

MR. HOPKINS: To be clear,just going with what we do have the records forTHE COURT: I've already ruled on that. 

MR. HOPKINS: Okay. 

Tr. Day 2, p. 139-140 (emphasis added). 

Appellant's counsel even elicited testimony from Detective Styn the texts on 'Exhibit B' 

were deleted from Yurkewicz's cell phone. Tr. Day 2, p. 139. A fair reacting of Appellant's 

cross-examination revealed all messages listed on 'Exhibit B' were deleted and 'Exhibit B' 

showed no messages were retrieved after January 3, 2018. Given the latitude afforded to 

Appellant's counsel in regard to questioning Detective Styn about 'Exhibit B'. Appellant was 

free to advance any theory that messages from a third party source may have been deleted or 

overwritten in Yurkewicz's cell phone. The only limitation placed on Appellant's cross,. 

examination of Detective Styn was the inability to question Detective Styn about "Jake B", a 

topic the Court determined was irrelevant and speculative. Appellant's claim is meritlea. 

18 
Assuming arguendo error occurred in precluding reference to "Jake en during 

questioning of Detective Styn, this was harmless error. Per the 1925(b) Statancnt, it appears 

Appellant's intention with 'Exhibit B' (excerpts from Detective Styn's rq,ort regarding the 

contents of Yurkewicz's cell phone) was to suggest "Jake B" as a possible soun:e of illegal 

narcotics for Yurkewicz. This is of no moment. Appellant was acquitted of Count One» Drug 

Delivery Resulting in Death (Yurkewicz). Furthermore, the texts referenced in �Exln"bit B' were 

deleted and no texts referenced on 'Exhibit B' were dated after January 3, 2018. Therefore, no 

prejudice occurred and any claimed error was harmless. Appellant's claim must be dismissed. 

m. Sufficiency of the evidence for conviction on co-t Seven - Crillmlal U1e of 

Communication Facility. 

Appellant asserts the evidence was insufficient for the jury to convict at Count Seven, 

Criminal Use of Communication Facility, because ''the Court should not have erroneously 

admitted the unauthenticated text messages". See J925(b) Statemenl, 1 4. This claim is without 

merit and should be dismissed. 

A. Sufr1eiency of the Evidence Standard 

When evaluating a challenge to the sufficiency of the evidence, the Comt must ddcrmine 

whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict 

winner, together with all reasonable inferences from that evidence, the trier of fact could have 

found each element of the crime charged was established beyond a reasonable doubt. 

Commonwealth v. Hargrave, 145 A.Jd 20, 22 (Pa.Super. 2000), appeal derMd, 160 A2d ISi 

(Pa. 2000)(internal citations omitted); Commonwealth. v. Brunson, 938 A.2d IOS7, 1058 

(Pa.Super. 2007); Commonwealth v. Chambers, 599 A.2d 630, 633 (Pa. 1991). The 

Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. 

19 
Commonwealth v. Hopkins, 747 A.2d 910, 913 (Pa.Super. 2000). The facts and circums1ances 

established by the Commonwealth need not preclude every possibility of innocence, and any 

questions or doubts are to be resolved by the fact-finder, unless the evidence is so weak and. 

inconclusive that, as a matter of law, no probability. of fact can be drawn man tbe combined 

circumstances. Commonwealth v. Hopkins, supra at 913-14. 

Viewing the evidence against this staadard, Appellant's contention is without merit. 

B. Review of Evidence for Sufficiency Claims 

Appellant's claim of sufficiency of the evidence is meritless and must be dismi,sed, The 

factual basis for Criminal Use of Communication Facility at Count Seven is that on the morning 

of January 6, 2018, Appellant, using phone number (814) 449-9983, bad contact with an 

undercover officer regarding a drug transaction at the 300 block of F.ast 24111 Street, City of�

Erie County, Pennsylvania. Information. 

To sustain a conviction for Criminal Use of Communication Facility (18 Pa. C.S.A. § 

7512), the Commonwealth must establish the defendant: I) knowingly and intmtionally used a 

communication facility; 2) knowingly, intentionally or recklessly facilitated an undc:rlying 

felony; and 3) the underlying felony occurred. Commonwealth v. Moss. 852 A.2d 374, 382 (Pa. 

Super. 2004). A "communication facility'' is defined as "a public or private insllrumen1ality used 

or useful in the transmission of signs, signals, writing, images, sounds, data or intelligence of any 

nature transmitted in whole or in part, including, but not limited to, telephone, wiR, radio, 

electromagnetic, photoelectronic or photo-optical systems or the mail." 18 Pa. C.S.A. § 7512(c). 

The elements of the crime were satisfied. Here, the record, viewed in the light most 

favorable to the Commonwealth, established beyond a reasonable doubt that Appellant 

20 
knowingly and intentionally used the cell phone associated with 9983 to engage in a drug 

transaction with undercover Detective Hanmer on January 6, 20!8. As recounted previously, the 

record established Appellant had contact with Detective Hanmer regarding a drug transaction 

occurring at 2411t Street between German and Parade Streets. At 9:19 a.m. on Janumy 6, 2018, 

Detective Hardner texted "Yo" to 9983 using Yurkewicz's cell phone. See Common.ww:alth 

Exhibit 12. At 9:54 a.m., Appellant responded "sup" and a conversation ensued regarding the 

drug transaction. At 10:44 a.m., Appellant directed Detective Hmdner to "meet me on 24" at 

which point Detective Hardner and back-up officers travelled toBest 24• Street between German 

and Parade Streets. At 11 :04 am. Detective Hanmer texted "Pullin up". A white Audi was 

observed driving down East 24th Street and briefly stopping at Appellant's mother's home 

located on the same block. Appellant exited the vehicle, entered his mother's rcsidcoce, and 

shortly thereafter returned to the vehicle. The white Audi moved further down the slft'.et and 

parked on the side of the road in front of Detective Hardner's vehicle. Shortly 1bcreafter, 

Detective Hardner received a phone call from 9983 with a male voice directing him to come to 

the ''white car''. Appellant made suspicious movements in the vehicle just prior to arrest. Heroin 

and fentanyl were found on the floor mat below the seat where he bad been sitting. 

Also, Appellant was convicted of the felony offense of Possession With lntmt to Dcliw:r 

(fentanyl) with regard to this specific transaction. There was sufficient evidence for the jury to 

conclude the elements of Count Seven, Criminal Use of Communication Facility, were 

established beyond a reasonable doubt. Appellant's claim must fail. 

21 
IV. Motion in Limine 

Appellant claims error occurred in not holding a "proper hearing" on the Motion in 

Limine. 

Appellant claims this resulted in the admission of otherwise inadmissible text messages. See 

1925(b) Statement, ,i 5. 

Appellant's claim is waived as vague. Even if the claim is not waived, it is wholly 

without merit. 

Appellant's claim is waived for vagueness. Appellant fails to point to any requin:ment or 

rule of law that was not followed. The Court is unable to analyze this issue. Thus, Appellant's 

claim must fail. See Pa.R.A.P. 192S(b ); Commonwealth v. Reeves, 901 A.2d at 2. 

Assuming arguendo Appellant's claim is not waived, it is wholly without merit. "A 

motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior Ill or 

during trial, but before the e11idence has Htell offend." Commonwealth "· John.ron, 582 A.2d 

336, 337 (Pa. Super. 1990), ajj'd, 534 Pa. 51, 626 A.2d 514 (1993), citing L. Packel & A.B. 

Poulin, Pennsylvania Evidence§ 103.3 (1987) (emphasis added). Essentially, a motion in Um.me 

is a vehicle to obtain a ruling on an evidentiary issue and a trial court may reserve its ruling until 

trial, in which case the parties are prohibited from referring to the evidence during trial until the 

court makes its ruling. See Commonwealth v. Metzer, 634 A.2d 228, 232 n, 3 (Pa. Super. 1993). 

In the present case, the issues raised in Appellant's Motion in Limine were fully 

considered by the Court and the Court made definitive rulings on the issues outside of the 

presence of the jury. On October 31, 2018, Appellant filed a Motion in Liminc, seeking a ruling 

that text messages dated January 5, 2018 sent from and received on a cell phone associated with 

814-520-3540 (Yurkewicz), and text messages dated January 5 and January 6, 2018 sent fiom 

22 
and received on a cell phone associated with 814-449-9983 (9983), were inadmissible for lack of 

authentication and as inadmissible hearsay. Appellant requested an evidentiary bearing on the 

requests. 

On November 13, 2018, before voir dire, the Court thoroughly addlased the claims in 

the Motion in Limine. Tr. Day 1, pp. 6-36. The Court considered legal argument by the 

Commonwealth and Appellant. Id. The Court determined the Commonwaltb met its "tbn:sbold 

burden" in proffering a basis for authentication of the text messages, advising it would 

nonetheless be incumbent upon the Commonwealth to proffer sufficient circumstantial evidence 

at trial to establish authorship. See Tr. Day 1, pp. 23-24. 

On November 13, 2018, during trial but before the contents of the texts were ptamted to 

the jury, the Court held a sidebar regarding text message exchanges on Yurkewicz's phone on 

January 5, 2018. Tr. Day 1, pp. 227-230. The Court found there was sufficient circumstantial 

evidence to authenticate the texts. Id 

During a recess on November 14, 2018, the Court addressed with counsel Appellant's 

objection regarding authentication of text message exchanges on 9983. Tr. Day 2. pp. 61--69. 

The Court determined the text message, "Dion", from a third party to 9983 was admissible for 

the limited purpose of connecting or linking the cell phone with AppellanL Tr. Day 1, pp. U-65. 

The Court also ruled the texts between the dates of January 5 and January 6, 2018, betwa:n thinl 

parties and 9983 regarding a change in the drug supply, were relevant and admissible. Tr. Day 1. 

pp. 68-69. The record demonstrates the Court appropriately addressed all of Appellant's claims 

in the Motion in Limine. Appellant's claim is wholly without merit 

23 
CONCLUSION 

For foregoing reasons, the judgment of sentence should be affirmed. The Ciak of Courts 

is hereby directed to transmit the record to the Superior Court. 

BY THE COURT: 

Date 

cc: District Attorney's Office 

l\Jl?U,,,llefender,�srQffi�,:,;a.,:\··· 

Damon Hopkins, Esq. 

24 
COMMONWEALTH OF PENNSYLVANIA 

v. 

DION ELUAH WAYNE 

CRIMINAL DIVISION 

NO. 697-2018 

..... ·--, .. 

:_..-: (...J 

Ul 

IN THE COURT OF COMMON PLEAS 

OF ERIE COUNTY, PENNSYLVANIA'.�:. 

r·ri J= �::; ·, ......... 

SUPPLEMENT AL 1925{a) OPINION 

This matter is before the Court on Appellant's Amended Statement of Matters 

Complained of on Appeal filed on June 28, 2019. For the reasons set forth in this Court's 

192S(a) Opinion filed on April 8, 2019 and the reasons set forth below, the judgment of sentence 

should be affirmed. 

BACKGROUND 

On January 23, 2019, Appellant filed a Notice of Appeal. On February 4, 2019, the 

Court directed Appellant to file a l 925(b) Statement of Matters Complained of on Appeal within 

30 days.1 Appellant filed a Statement of Matters Complained of on Appeal on February 28, 

2019. On April 8, 2019, this Court filed the 1925(a) Opinion in this matter. The opinion is 

iocorpotated herein by reference. 

On Jm1e 14, 2019, Appellant filed an Application for Relief with the Superior Court of 

Pennsylvania, requesting leave to amend the 1925(b). On June 20, 2019, the Superior Court of 

Pennsylvania remanded the record to this Court to allow Appellant to file an amended 1925(b ), 

and directed this Court to prepare a supplemental 1925( a) Opinion. On June 28, 2019, Appellant 

I Dis Cowl IIOfes an error was made in its original 1925(a) Opinion in calculating Appellant's original 1925(b) 

SUllaDenl untimely. Appellant was granted 30 days, not 21 days, to file the l 925(b) Statement by Order of February 

4, 2019. The 1925(b) SWement, filed on February 28, 2019, was therefore timely. 
filed an Amended Statement of Matters Complained of on Appeal. This Opinion is in response 

thcmo.2 

Parap�Appellailt's Amended Statement of Matters Complained of on Appeal raises 

issues regarding the sufficiency of the evidence, to-wit: 

I. Whether there was sufficient evidence for the jury to convict at Count Six, 

Possession With Intent to Deliver (heroin and/or fentanyl); 

2. Whether there was sufficient evidence for the jury to convict at Count Five, 

Tampering With or Fabricating Physical Evidence; and 

3. Whether there was sufficient evidence for the jury to convict at Count Seven, 

Criminal Use of Communication Facility. 

DISCUSSION 

The standard of review for the sufficiency of the evidence was previously set forth in the 

Comt's original 1925(a) Opinion: 

When evaluating a challenge· to the sufficiency of the evidence, the Court 

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

to the Commonwealth as the verdict winner, together with all reasonable 

inferences from that evidence, the trier of fact could have found each 

element of the crime charged was established beyond a reasonable doubt. 

Commonwealth v. Hargrave, 145 A.3d 20, 22 (Pa.Super. 2000), appeal 

denied, 160 A.2d 85 l (Pa. 2000)(internal citations omitted); 

Commonwealth. v. Brunson, 938 A.2d 1057, 1058 (Pa.Super. 2007); 

Commonwealth v. Chambers, 599 A.2d 630, 633 (Pa. 1991). The 

Commonwealth may sustain its burden of proof by means of wholly 

circumstantial evidence. Commonwealth v. Hopkins, 141 A.2d 910, 913 

(Pa.Super. 2000). The facts and· circumstances established by the 

Commonwealth need not preclude every possibility of innocence, and any 

questions or doubts are to be resolved by the fact-finder, unless the 

evidence is so weak and inconclusive that, as a matter of law, no 

probability of fact can be drawn from the combined circumstances. 

Commonwealth v. Hopkins, supra at 913-14. 

Opinion, April 8, 1019 at 19-10. 

2 

Tbc Amcodcd 192S(b) Statement flied on June 28, 2019 did not incorporate by reference the allegations in the 

original 1925(1,) Stalement filed on February 28, 20,19. 

2 , 
When viewed against this standard, Appellant's additional claims regarding the 

sufficiency of the evidence must fail. Appellant's claims will be addressed ad seriatim. 

1. Safflcie•cy of the evidence for conviction on Count Six - Possession Witlb. 

Intent to Deliver (heroin and/or fentanyl). 

Appellant asserts the evidence was insufficient for the jury to convict at Count Six, 

Posseaion With Intent to Deliver (heroin and/or fentanyl), because " . . the Commonwealth 

failed to present sufficient evidence that the controlled substance was ever in the possession of 

Appellant, that the Appellant was aware of its presence, and/or that the Appellant possessed the 

controlled substance with the intent to deliver it or furnish it to another." See Amended 

Sla1emen1 of Matters Complained of on Appeal, ,r B9. This claim is without merit and should be 

dismissed. 

Appellant's claim of sufficiency of the evidence is meritless and must be dismissed. The 

factual basis for Possession with Intent to Deliver (heroin and/or fentanyl) at Count Six is that on 

January 6, 2018, Appellant, directly or by virtue of his complicity, did deliver or possess with 

intent to deliver heroin and/or fentanyl to an undercover Millcreek Township Police Officer 

posing as Adam J. Yurkewicz at the 300 block of East 241h Street, City of Erie, Erie County, 

Pennsylvania. lnformaJion. 

To sustain a conviction for Possession With Intent to Deliver (35 Pa.C.S.A. § 780- 

l I 3(aX30)), the Commonwealth must establish the defendant: I) possessed a controlled 

substance and 2) intended to deliver it. See Commonwealth v. Little, 879 A.2d 293, 297 (Pa. 

Super. 2005). All of the facts and circumstances surrounding the possession are relevant and the 

elements of the crime may be established by circumstantial evidence. Id "The Commonwealth 

may meet its burden of proving a possessory crime by showing actual possession, constructive 

3 
possessio� or joint constructive possession. Commonwealth v. Hall, 199 A.3d 954, 960 (2018), 

�al Mnied. 206 A.3d 1028 (Pa. 2019) (citations omitted). "Constructive possession'' has been 

defined as the "ability to exercise a conscious domain over" an item and requires proof that the 

defendant had knowledge of the existence and location of the item. Commonwealth v. Hall, 199 

; 

A..Jd at 96/. When" ... more than one person has access to the contraband, 'the Commonwealth 

' 

must introduce evidence demonstrating either [the defendant's] participation in the drug-related 

activity or evidenct connecting [the defendant] to the ... areas where the drugs were kept'." Id. 

: 

The elements of control can be proven circumstantially by examining the totality of the 

cireumstances. Id. 

The elements of the crime were satisfied. Here, the record, viewed in the light most 

favorable to the Commonwealth, established beyond a reasonable doubt that Appellant was in at 

least constructive possession of heroin and/or fentanyl, as he had the ability to exercise conscious 

domain over the drugs, he was aware of their existence and location within the vehicle, and 

significant evi�existed demonstratingAppellant's participation in drug-related activity. 

In its original I 925(a) Opinion, the Court exhaustively discussed the overwhelming 

evidence establisbqig Appellant had engaged in text messages to arrange a drug transaction to 

occtD' on January 6, 2018 at 24111 Street between German and Parade Streets. The evidence also 

established Appellant resided only a few houses down from the location arranged for the drug 

deal. Immediately' after the final texts arranging the delivery of the drugs, the white Audi 

Appellant was traveling in stopped in front of his mother's residence and Appellant exited from 

the ftont passenger seat of the vehicle. Shortly thereafter, Appellant re-entered the Audi and the 

vehicle moved a little further down the road. Transcript of Proceedings, Day 2, November 14, 

2018 (fr. Day 2) pp. 246-247. It was at this time the phone call directing the undercover officer 

4 
to the "white car"\ was received. Tr. Day 2, pp. 189·197. As officers were approaching the 

vehicle to eff�an arrest, Appellant was observed leaning forward in the passenger seat 

"making furtive m+vements with his arms towards the floorboards of the front passenger's seat" 

Tr. Day 2, pp. I 5JJJ54. When Appellant was removed from the front passenger seat of the white 

! 

Audi for arrest, he kept trying to brush off a "white powdery substance" from the right leg of his 

I 

I 

sweatpants. Tr . .l)qy 2, p. 156. Upon a search of the vehicle immediately following Appellant's 

j 

am:st, a "chunky �ubstance with powder residue on top'' was located on the floor mat on the I 

l 

front passenger sictb of the Audi. Id Subsequent testing revealed the substance recovered from 

I 

the passenger fl� contained heroin and fentanyl. Tr. Day 2, pp. 233·235. A folded-up white 

piece of paper, consistent with a common way of packaging heroin or fentanyl, was also 

recovered from the passenger floor of the vehicle. Tr. Day 2, pp. 15 7 • 161. The search of 

Appellant's person recovered, among other things, $1,020.00 of US currency "in a stack," Tr. 

Day 2, pp. 164· 166. 

When viewed in the light most favorable to the Commonwealth, the evidence was 

sufficient to establish beyond a reasonable doubt that Appellant was in constructive possession 

of heroin and/or featanyl and intended to deliver the drugs. Appellant was the passenger in the 

white Audi that arrived at 24th Street between German and Parade Streets on January 6, 2018 to 

complete a drug d$1. It is also indisputable that a substance was found on the passenger's side 

floor mat of the Audi that tested positive for heroin and/or fentanyl. Although he was not the 

only occupant of the vehicle, Appellant had at least equal access to the drugs and the drugs were 

found in close proximity to where Appellant was sitting in the vehicle. The white piece of paper, 

consistent with dn1g packaging, was also right below where Appellant had been sitting. 

Appellant's behavior was suspicious, as suddenly upon realizing the police were closing in he 

5 
began making "furtive movements with bis arms" in the direction of the floorboard. No drug 

parapbemalia was found indicating the drugs were for personal use. An unusually large stack of 

cash was found in Appellant's pockets. These facts and circumstances established Appellant 

possessed the heroin and/or fentanyl with the intent to deliver in violation of the statute. 

AppeUant's claim must fail. 

l. Saflideney of the evidence for conviction on Count Five - Tampering With 

or Fabricating Physical Evidence 

AppeUant asserts the evidence was insufficient for the jury to convict at Count Five, 

Tampering With or Fabricating Physical Evidence, because " ... the Commonwealth failed to 

establish that the Appellant was even in possession of heroin/fentanyl at the time of his arrest ... 

[and] failed to establish that the Appellant did anything to destroy and/or conceal heroin/fentanyl 

from being discovered in the vehicle." See Amended Statement of Matters Complained of on 

Appeal, 1 BIO. This claim is without merit and should be dismissed. 

Appellant's claim of sufficiency of the evidence is meritless and must be dismissed. The 

factual basis for Tampering with or Fabricating Physical Evidence at Count Five is that on 

January 6, 20l8, Appellant emptied heroin and/or fentanyl from a folded white piece of paper 

onto the floor of the vehicle at the 300 block of East 24th Street, City of Erie, Erie County, 

Pennsylvania. Information. 

In relevant part, a person is guilty of Tampering With or Fabricating Physical Evidence if, 

believing that an official proceeding or investigation is pending or about to be instituted, he 

conceals or removes any thing with the intent to impair its verity or availability in such 

procccding or investigation. 18 Pa.C.S.A. § 4910(1). 

6 
The eleme$ts of the crime were satisfied. Here, the record, viewed in the light most 

favorable to the Commonwealth, established beyond a reasonable doubt that Appellant attempted 

to conceal or impair the availability of contraband in connection with a pending investigation. 

As discussed aboff, the evidence established Appellant constructively possessed heroin and/or 

fentanyl with the intent to distribute it. At the time of the drug deal, when Appellant realized he 

had been caught in a drug sting, he hurriedly attempted to dispose of the drugs before the police 

reached the vehicle. Appellant was observed making "furtive amt movements" toward the 

pas.,cngcr side floorboard of the vehicle, where subsequently heroin and/or fentanyl were found. 

The evidence was sufficient for the jury to conclude the elements of Count Five, Tampering 

Wrtb or Fabricating Physical Evidence, were established beyond a reasonable doubt. Appellant's 

claim must fail. 

3. Saffldeney of the evidence for conviction on Count Seven - Criminal Use of 

Co••anication Facility. 

Finally, Appellant asserts the evidence was insufficient for the jury to convict at Count 

Seven, Criminal Use of Communication Facility, because "the Court should not have 

erroneously admitb:d the unauthenticated text messages". See Amended Statement of Matters 

Complained of on .Appeal, 1 Bl 1. This claim is without merit and should be dismissed. 

Appellant's claim of sufficiency of the evidence as to Count Seven, Criminal Use of 

Communication Facility as well as the claim of evidentiary error regarding the text messages 

were fully addlased in the Court's original 1925(a) Opinion. See Opinion, April 8, 2019, 10-16; 

19-11. The Court's analysis and reasoning as to this repeated claim is incorporated herein as if 

set forth in its entirety. Appellant's claim must be dismissed. 

7 
CONCLUSION 

For foregoing reasons, the judgment of sentence should be affirmed. The Clerk of Courts 

is hereby directed to transmit the record to the Superior Court. 

BY THE COURT: 

t/t5 /2019 

Dater 1 

cc: District A�mey's Office 

Emily Merski, Esq., Public Defender's Office 

8