J-A20036-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL MARTIN 

Appellant

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1455 WDA 2019

Appeal from the Judgment of Sentence Entered June 7, 2019

in the Court of Common Pleas of Washington County 

Criminal Division at No(s): CP-63-CR-0002923-2017

BEFORE: BOWES, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: FILED: APRIL 6, 2021

Michael Martin (“Martin”) appeals from the judgment of sentence 

imposed following his convictions of one count each of drug delivery resulting 

in death, criminal use of a communication facility, criminal conspiracy,

possession of a controlled substance, and possession of drug paraphernalia, 

and two counts each of possession with intent to deliver a controlled substance 

and persons not to possess firearms.

1

 We affirm.

In its Opinion, the trial court set forth the factual background underlying 

this appeal, which we adopt as though fully set forth herein. See Trial Court 

Opinion, 7/31/19, at 2-9. 

____________________________________________

1 18 Pa.C.S.A. §§ 2506, 7512(a), 903(a)(1); 35 P.S. § 780-113(a)(16), (32), 

(30); 18 Pa.C.S.A. § 6105(a)(1).
J-A20036-20

- 2 -

On March 21, 2019, a jury found Martin guilty of the above-mentioned 

crimes. On April 1, 2019, Martin filed a “Motion for Post-trial Relief,” 

challenging, in relevant part, the weight and sufficiency of the evidence in 

support of the jury’s verdict, the trial court’s admission into evidence of certain 

text messages from Martin’s cell phone, and a jury instruction that was made 

by the trial court in response to a question posed by the jury during 

deliberations.

2

 On June 7, 2019, Martin was sentenced to an aggregate term 

of 15 to 30 years in prison. On July 31, 2019, the trial court entered an Order 

dismissing Martin’s April 1, 2019, Motion. On September 23, 2019, Martin 

filed a counseled Notice of Appeal.

On October 17, 2019, this Court entered an Order stating that Martin’s 

September 23, 2019, Notice of Appeal was filed outside of the 30-day appeal 

period,3 and directing Martin to show cause why his appeal should not be 

quashed as untimely filed. On October 28, 2019, counsel for Martin, Mark G. 

Adams, Esquire (“Attorney Adams”), filed a Response with this Court. In his 

Response, Attorney Adams asserted that he had timely filed the Notice of 

Appeal, and that a breakdown in court operations caused it to be recorded as 

untimely filed. This Court subsequently issued an Order, remanding the case 

____________________________________________

2 The trial court treated Martin’s Motion as a post-sentence Motion, and 

deferred ruling thereon until after Martin’s judgment of sentence was entered.

3 See Pa.R.A.P. 903(a) (stating that a notice of appeal “shall be filed within 

30 days after the entry of the order from which the appeal is taken.”).
J-A20036-20

- 3 -

to the trial court to develop a record regarding whether a breakdown in the 

court’s operations had impacted Martin’s timely filing of his Notice of Appeal.

On January 6, 2021, the trial court issued an Order stating that it had 

conducted a hearing regarding Attorney Adams’s timeliness claim, and 

concluded that a breakdown in court operations had caused Martin’s Notice of 

Appeal to be untimely filed. See Order, 1/6/21, at 1-2.4 In light of the 

foregoing, we will address Martin’s claims on appeal.

On appeal, Martin raises the following questions for our review:

1. Whether the trial court erred in admitting evidence of text 

messages despite the fact that said messages were not properly 

authenticated, were inadmissible hearsay, were inadmissible as 

prior bad acts, and [were] in violation of the Confrontation Clause?

2. Whether the trial court erred by admitting the autopsy report 

and testimony despite [C]onfrontation [C]lause violations?

3. Whether the trial court erred in denying the jury the ability to 

consider evidence of theft in a [d]eath by [d]elivery charge despite 

evidence of theft being presented at trial?

4. Whether the lower court erred in finding [that] there was 

sufficient evidence to uphold the verdict?

Brief for Appellant at 7.

____________________________________________

4 The trial court found that Attorney Adams “testified credibly about filing his 

[N]otice of [A]ppeal on August 29, 2019,” and “[h]is Colleague, Dennis 

Popojas, Esquire, corroborated this claim with credibility.” Order, 1-6/21, at 

1. The trial court noted that “the [C]lerk of [C]ourt from 2016 through 2019, 

was under investigation in 2019 by the Pennsylvania State Police for 

embezzling []$101,876.04 from his office in 2018. According to [Brenda 

Davis, the current Clerk of Courts,] she and her staff have found numerous 

filing problems and errors from the months of [August through October] 

2019.” Id. at 2 (footnote omitted).
J-A20036-20

- 4 -

In his first claim, Martin argues that the trial court erred in admitting 

into evidence the text messages from Exhibit 45, which were discussed during

the trial testimony of Pennsylvania State Trooper Kevin Dejuliis (“Trooper 

Dejuliis”). Martin advances several grounds on which the trial court erred in 

admitting these text messages, which we will address separately. First, Martin 

argues that the text messages were not properly authenticated. See Brief for 

Appellant at 12-16. Martin claims that the Commonwealth did not produce 

evidence proving that Martin authored the “sent” text messages. Id. at 12-

14. According to Martin, the fact that the sender of the text messages 

identified himself in one of the texts as “Miz,” a nickname by which Martin was 

known, is not sufficient to authenticate the text messages. Id. at 14-16. 

Martin states that other people knew him by this nickname, and thus, this 

information was not information that only Martin would know. Id.

The standard of review governing evidentiary issues is 

settled. The decision to admit or exclude evidence is committed 

to the trial court’s sound discretion, and evidentiary rulings will 

only be reversed upon a showing that a court abused that 

discretion. A finding of abuse of discretion may not be made 

merely because an appellate court might have reached a different 

conclusion, but requires a result of manifest unreasonableness, or 

partiality, prejudice, bias, or ill-will, or such lack of support so as 

to be clearly erroneous. Matters within the trial court’s discretion 

are reviewed on appeal under a deferential standard, and any such 

rulings or determinations will not be disturbed short of a finding 

that the trial court committed a clear abuse of discretion or an 

error of law controlling the outcome of the case.

Commonwealth v. Koch, 106 A.3d 705, 710-11 (Pa. 2014) (citations and 

quotation marks omitted).
J-A20036-20

- 5 -

Pennsylvania Rule of Evidence 901 sets forth the standards for 

authenticating evidence. Rule 901 states, in relevant part, as follows:

(a) In General. Unless stipulated, to satisfy the requirement of 

authenticating or identifying an item of evidence, the proponent 

must produce evidence sufficient to support a finding that the item 

is what the proponent claims it is.

(b) Examples. The following are examples only--not a complete 

list--of evidence that satisfies the requirement:

* * *

(11) Digital Evidence. To connect digital evidence with a 

person or entity:

(A) direct evidence such as testimony of a person with 

personal knowledge; or

(B) circumstantial evidence such as:

(i) identifying content; or

(ii) proof of ownership, possession, control, or 

access to a device or account at the relevant 

time when corroborated by circumstances 

indicating authorship.

Pa.R.E. 901. 

“Digital evidence,” as used in this rule, is intended to include 

a communication, statement, or image existing in an electronic 

medium. This includes emails, text messages, social media 

postings, and images. The rule illustrates the manner in which 

digital evidence may be attributed to the author.

The proponent of digital evidence is not required to 

prove that no one else could be the author. Rather, the 

proponent must produce sufficient evidence to support a 

finding that a particular person or entity was the author.

See Pa.R.E. 901(a).

Pa.R.E. 901, cmt (emphasis added).
J-A20036-20

- 6 -

Under Pennsylvania Rule of Evidence 901, text messages 

may be authenticated by: (1) testimony from either the author or 

the sender; (2) circumstantial evidence, including “distinctive 

characteristics” like information specifying the author-sender or 

“reference to or correspondence with relevant events” preceding 

or following the message; or (3) “any other facts or aspects of the 

message that signify it to be what its proponent claims.” 

Commonwealth v. Koch, ... 106 A.3d 705, 712-13 ([Pa.] 2014) 

(Castille, C.J., in support of affirmance); see Commonwealth v. 

Collins, ... 957 A.2d 237, 265-66 ([Pa.] 2008). Further, 

“authentication generally entails a relatively low burden of proof; 

in the words of Rule 901 itself, simply ‘evidence sufficient to 

support a finding that the item is what the proponent claims.’” 

Koch, 106 A.3d at 713 (quoting Pa.R.E. 901(a)).

Commonwealth v. Murray, 174 A.3d 1147, 1156-57 (Pa. Super. 2017) 

(brackets omitted).

Here, Martin does not cite to the record, or indicate which of the 209 

text messages that were discussed during Trooper Dejuliis’s testimony he 

challenges. Even were we to assume that Martin is challenging all 209 

messages, Martin makes no argument regarding the specific messages.

Instead, Martin makes a wholesale argument that none of the messages were 

authenticated. “[W]here an appellate brief fails to provide any discussion of 

a claim with citation to relevant authority[,] or fails to develop the issue in 

any other meaningful fashion capable of review, that claim is waived.” 

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). It is not the 

role of this Court to “formulate [an a]ppellant’s arguments for him.” Id. at 

925. Accordingly, we could find this claim waived. 

Nonetheless, in its Opinion, the trial court aptly reviewed all 209 

messages, and concluded that the Commonwealth presented sufficient 
J-A20036-20

- 7 -

evidence to authenticate each of the messages. See Trial Court Opinion, 

7/31/19, at 24-28. We agree with the sound reasoning and determinations 

of the trial court, as set forth in its Opinion, and we affirm thereon regarding 

this claim. Id.; see also Murray, 174 A.3d at 1156 (stating that text 

messages may be authenticated by “circumstantial evidence, including 

‘distinctive characteristics’ like information specifying the authorsender.”).

Second, Martin argues that the “sent” messages from Exhibit 45 

discussed during Trooper Dejuliis’s testimony should have been excluded as 

hearsay pursuant to Pa.R.E. 803. See Brief for Appellant at 16-18. Martin 

claims that these text messages cannot be admitted under the party-opponent 

exception to the hearsay rule, see Pa.R.E. 803(25), because the 

Commonwealth did not establish that the text messages were sent by Martin. 

Brief for Appellant at 16-18.

Hearsay is an out of court statement offered to prove the 

truth of the matter asserted. Pa.R.E. 801(C). Generally, it is not 

admissible, as it lacks guarantees of trustworthiness fundamental 

to our system of jurisprudence. In order to guarantee 

trustworthiness, the proponent of a hearsay statement must 

establish an exception to the rule of exclusion before it shall be 

admitted.

Commonwealth v. Manivannan, 186 A.3d 472, 480 (Pa. Super. 2018) 

(citation, brackets and quotation marks omitted).
J-A20036-20

- 8 -

One of the exceptions to the rule against hearsay is an opposing party’s 

statement, which is a “statement [] offered against an opposing party and ... 

made by the party in an individual ... capacity.” Pa.R.E. 803(25). 

Party admissions are not subject to hearsay exclusion 

because[] it is fair in an adversary system that a party’s prior 

statements be used against him if they are inconsistent with his 

position at trial. In addition, a party can hardly complain of his 

inability to cross-examine himself. A party can put himself on the 

stand and explain or contradict his former statements. Thus, in 

criminal cases, [the Supreme Court of Pennsylvania] has 

consistently held that a defendant’s out-of-court statements are 

party admissions and are exceptions to the hearsay rule.

Commonwealth v. Edwards, 903 A.2d 1139, 1157-58 (Pa. 2006) (citations 

omitted).

Here, the trial court reviewed the “sent” text messages from Exhibit 45,

discussed why it was clear that the messages were sent by Martin, and 

concluded that the text messages were properly admitted as admissions of a 

party opponent. See Trial Court Opinion, 7/31/19, at 23-28; Pa.R.E. 803(25). 

We agree with the sound reasoning and determinations of the trial court, as 

set forth in its Opinion, and we affirm thereon regarding this claim. Trial Court 

Opinion, 7/31/19, at 23-28; Pa.R.E. 803(25); Edwards, supra.

Third, Martin argues that the “received” text messages from Exhibit 45

discussed during Trooper Dejuliis’s testimony should have been excluded as 

prior bad acts evidence, in violation of Pa.R.E. 404(b)(1). Brief for Appellant 

at 18-20. Martin claims that the messages were used to prove his character—
J-A20036-20

- 9 -

specifically, his “propensity to deal in narcotics”—and that “this evidence [was] 

used to ascertain his guilt.” Id. at 18-19; accord id. at 19-20.

Rule 404(b)(1) states that “[e]vidence of a crime, wrong, or other act 

is not admissible to prove a person’s character in order to show that on a 

particular occasion the person acted in accordance with the character. Pa.R.E. 

404 (emphasis added). 

Here, Martin was charged with criminal use of a communication facility 

during the period over which the “received” messages were received. See

Amended Information, 2/15/19, at 1-2 (pages unnumbered). This charge 

required proof that Martin “use[d] a communication facility to commit, cause 

or facilitate the commission or the attempt thereof of any crime which 

constitutes a felony under [the Crimes Code] or under ... The Controlled 

Substance, Drug, Device and Cosmetic Act.” 18 Pa.C.S.A. § 7512. Martin 

was also charged with possession with intent to deliver a controlled substance, 

which is a felony under the Controlled Substance, Drug, Device and Cosmetic 

Act, and conspiracy to commit possession with intent to deliver a controlled 

substance, which is a felony under the Crimes Code. See 35 P.S. 780-

113(a)(30); 18 Pa.C.S.A. § 903(a)(1). Thus, the text messages were 

admissible to prove that Martin was guilty of criminal use of a communication 

facility. Accordingly, the trial court did not abuse its discretion, and this claim 

fails.
J-A20036-20

- 10 -

Fourth, Martin argues that admission of the “received” text messages 

from Exhibit 45, discussed during Trooper Dejuliis’s testimony, violated his 

rights under the Confrontation Clause, see U.S. Const. amend. VI. Brief for 

Appellant at 20-21. Martin claims that the text messages are testimonial; the 

text senders were available to testify; and Martin did not have a prior 

opportunity to cross-examine the text-senders. Id.

In its Opinion, the trial court identified the “received” messages, stated 

the applicable law, cogently and thoroughly addressed Martin’s claim, and 

concluded that it lacks merit. See Trial Court Opinion, 7/31/19, at 28-30. We 

agree with the sound reasoning and determinations of the trial court, as set 

forth in its Opinion, and we affirm thereon regarding this claim. See id. 

Accordingly, each of Martin’s claims regarding the trial court’s admission of 

the text messages from Exhibit 45 fails.

In his second claim, Martin argues that the trial court erred when it 

admitted into evidence the autopsy report of Stacy Greenawalt (“the victim”). 

See Brief for Appellant at 22-23. Martin claims that his rights under the 

Confrontation Clause were violated because the autopsy report’s author, Dr. 

Leon Rosen (“Dr. Rosen”), was unavailable for cross-examination at trial. Id. 

Martin further argues that the trial court erred in permitting Dr. Abdulrezak

Shakir to testify regarding the autopsy, because his testimony was based on 

Dr. Rosen’s conclusions in the autopsy report. Id. at 24-26.
J-A20036-20

- 11 -

Here, Martin did not raise this claim with the trial court at trial or in his 

Post-Trial Motion. See Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in 

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

Commonwealth v. May, 887 A.2d 750, 761 (Pa. 2005) (stating that the 

appellant waived his Confrontation Clause claim where he did not raise the 

claim at trial). Accordingly, this claim is waived. See id.

In his third claim, Martin argues that the trial court erroneously 

responded to a question raised by the jury during its deliberations. See Brief 

for Appellant at 26-28. Martin points out that the jury asked the trial court, 

with regard to the drug delivery resulting in death charge, whether “the law 

hold[s] the supplier accountable if the victim stole the controlled substance 

without the knowledge of the defendant[.]” Id. at 26-28; N.T., 3/21/19, at 

81. Martin claims that the trial court improperly instructed the jury that, based 

on the evidence presented at trial, the jury could not conclude that the victim 

stole the narcotics that caused her death from Martin. See Brief for Appellant 

at 27-28; N.T., 3/21/19, at 81. According to Martin, because “there [was] no 

witness of [a drug transaction] between Martin and [the victim],” the jury 

should have been permitted to infer that the victim may have stolen the drugs 

from Martin. Brief for Appellant at 27-28. 

It is settled that a trial court should not instruct the jury on 

legal principles which have no application to the facts presented 

at trial. Rather, there must be some relationship between the 

evidence presented and the law upon which an instruction is 

requested. The reason for this rule is that, instructing the jury on 

legal principles that cannot rationally be applied to the facts 
J-A20036-20

- 12 -

presented at trial may confuse them and place obstacles in the 

path of a just verdict. Accordingly, a criminal defendant must 

establish that the trial evidence would reasonably support a 

verdict based on the desired charge and may not claim 

entitlement to an instruction that has no basis in the evidence 

presented during trial.

Commonwealth v. Taylor, 876 A.2d 916, 925-26 (Pa. 2005) (citations and 

quotation marks omitted).

Here, the trial court responded to the jury’s question by instructing that 

[t]he jury can only consider the evidence that was presented in 

the courtroom via the witnesses, and/or – and the exhibits. You 

are not permitted to speculate. There was no evidence presented 

that the victim stole anything that is a controlled substance. There 

was no evidence of that. So[,] you may not consider that which 

is not in evidence or things that are reasonably inferred from the 

evidence presented.

N.T., 3/21/19, at 81.

Our review of the record discloses that there was no evidence presented 

at trial to suggest that the victim stole from Martin the drugs that caused her 

death. Thus, the trial court did not err in giving this instruction. See Taylor, 

supra. Accordingly, this claim fails.

In his fourth claim, Martin argues that the Commonwealth failed to 

present sufficient evidence to support his convictions for persons not to 

possess firearms. See Brief for Appellant at 28-32. Martin points out that he 

was convicted of two counts of persons not to possess firearms, relating to his 

alleged possession of three firearms. Id. at 28-30. The first count was in 

relation to two firearms: an AR-15 rifle and a .45 caliber handgun. Id. at 29. 

The second count was in relation to a .32 caliber handgun. Id. According to 
J-A20036-20

- 13 -

Martin, there was no evidence establishing that he was in actual possession 

of any of the three firearms, and the evidence was insufficient to prove that 

he had constructive possession of the firearms. Id. at 29-32. Martin further 

claims that there was no evidence to prove that the three firearms “were in 

fact firearms under the statute” “since the guns were never recovered.” Id.

at 31.

When considering a challenge to the sufficiency of the evidence, we 

ascertain

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 [that of] the factfinder. 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. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation 

omitted). 

Section 6105(a)(1) of the Crimes Code states, in relevant part, that 

[a] person who has been convicted of an offense enumerated in 

subsection (b) ... shall not possess, use, control, sell, transfer or 
J-A20036-20

- 14 -

manufacture or obtain a license to possess, use, control, sell, 

transfer or manufacture a firearm in this Commonwealth.

18 Pa.C.S.A. § 6105(a)(1).5

Here, Martin was convicted of two counts of persons not to possess 

firearms. Regarding the first conviction, Ricky Litton, Jr. (“Litton”), testified 

that he had sold Martin two firearms. See N.T., 3/19/19, at 9-17. Specifically, 

Litton stated that he went to Martin’s home and negotiated the sale of a Stag 

AR-15 rifle and a Para .45 caliber handgun to Martin, in exchange for some 

cocaine and U.S. currency. Id. Litton testified that Martin gave Litton the 

cocaine and money, and Litton gave Martin the two firearms. Id. at 15-17. 

Viewing the evidence in a light most favorable to the Commonwealth, the 

Commonwealth presented sufficient evidence to convict Martin of the first 

persons not to possess firearms count. See 18 Pa.C.S.A. § 6105(a)(1).

Regarding the second persons not to possess firearms conviction, 

Samantha Howes (“Howes”), Martin’s roommate, testified that she saw Martin 

in possession of a .32 caliber handgun. N.T., 3/18/19, at 141-45. Specifically, 

Howes stated that on December 2, 2016, Robbie Huber (“Huber”) overdosed 

on heroin while at the home where Howes and Martin lived. Id. Howes 

testified that she found Huber unresponsive in the bathroom, with a needle 

sticking out of his arm. Id. at 143. Howes and Martin carried Huber’s body 

____________________________________________

5 Martin challenges only whether he was in possession of the firearms, and 

not whether he was prohibited from possessing a firearm. Accordingly, we 

will limit our analysis to whether Martin possessed the firearms.
J-A20036-20

- 15 -

from the bathroom into the hallway and Howes performed CPR on Huber. Id. 

At some point, the .32 caliber gun fell out of Huber’s pocket, and Martin picked 

it up and held onto it. Id. at 143-45. Howes testified that Huber regained 

consciousness, but Martin did not return the handgun to Huber, and instead, 

retained possession of the handgun. Id. Viewing the evidence in a light most 

favorable to the Commonwealth, the Commonwealth presented sufficient 

evidence to convict Martin of the second persons not to possess firearms 

count. See 18 Pa.C.S.A. § 6105(a)(1). In light of the foregoing, Martin’s 

sufficiency claims fail.

Accordingly, each of Martin’s claims lack merit, and we deny Martin 

relief.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 04/06/2021