J-A08014-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : KEVIN RASHAWN CARPENTER : : Appellant : No. 985 EDA 2020 Appeal from the Judgment of Sentence Entered January 16, 2020 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0006873-2018

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.* MEMORANDUM BY PANELLA, P.J.: FILED SEPTEMBER 13, 2021 Kevin Rashawn Carpenter appeals from the judgment of sentence entered on January 16, 2020, following his convictions for criminal attempt - murder of the first degree, aggravated assault, and discharge of a firearm into an occupied structure. On appeal, Carpenter argues the trial court erred when it granted the Commonwealth's pre-trial motion for joinder and when it permitted a non-expert witness to testify regarding cell phone location data.

Finally, Carpenter argues the trial court erred in denying him a new trial based on after-discovered evidence. After careful review, we affirm.

In 2017, the victim began a relationship with Carpenter after visiting him frequently at the phone store where he worked. At the time, the victim

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* Former Justice specially assigned to the Superior Court.

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was twenty-six and Carpenter was eighteen. They eventually decided to separate but continued to keep in contact.

On April 2, 2018, around midnight, the victim was asleep at her apartment. She eventually woke up to a few missed calls from Carpenter.

After attempting to call Carpenter back, with no response, the victim heard a car pull up outside her building. She looked out the window to see Carpenter getting out of his Jeep and walking towards the front door. She went downstairs and opened the door slightly to talk to Carpenter, while attempting to not let in him. However, Carpenter managed to get through the door and went up to her apartment. While inside, he began searching around her room, eventually finding an envelope with money in it that she had been saving for a car. Carpenter took the money and left. The victim then called the police.

The victim testified that she attempted to contact Carpenter to get the money back but he never returned the money. This incident formed the basis of criminal complaint #6866-2018.

On June 24, 2018, sometime around 2:00 a.m., the victim was at a nearby Lukoil gas station, along with her sister and her sister's friend. As she pulled up to a pump, she noticed Carpenter pull up in his Jeep behind her.

They had no interaction at the gas station.

However, on her drive back to her mother’s house, the victim stopped at a red light and felt the back of her car get bumped by Carpenter’s Jeep.

The victim then drove around the block twice and called her family to come

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outside. When she pulled up to her mother’s house, she joined her family members in front of the house.

Carpenter pulled up and parked on the opposite side of the street. The victim, along with her family members, asked Carpenter why he was following her. Carpenter did not respond, but the victim heard yelling coming from other people in his car. About a minute after pulling up, Carpenter drove down to the corner of the street, rolled down his window part way, and fired off four or five shots.

The victim and her family members immediately ran back to the home and did not see where Carpenter went afterwards. No one was injured. The victim immediately called the police, who arrived shortly thereafter. No shell casings or other evidence of a shooting was recovered. This incident formed the basis for criminal complaint #6850-2018.

Throughout the following day, the victim kept receiving threatening phone calls from Carpenter, which she reported to the police. On June 25, 2018, the victim filed for a temporary protection from abuse order.

On June 26th, 2018, at approximately 2:00 a.m., the victim was at her mother’s house. She was still receiving threatening phone calls from Carpenter so she called the police again. When officers arrived, Carpenter was still calling and threatening her, so she put the phone on speaker to let the police listen as Carpenter talked. Carpenter kept asking where she was and threatening her, even after the police identified themselves. Officer Jeffrey Abreu and

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Officer Edward Colon confirmed the victim’s testimony about this incident which formed the basis for criminal complaint #6849-2018.

The victim informed Officer Colon that Carpenter used a police scanner to monitor the police. Officer Colon therefore provided the victim with his direct phone number, so that the victim could contact him without Carpenter being alerted.

Shortly after the police left, at approximately 3:30 a.m., the victim was sitting in the living room of her mother’s home with her brother when she heard a sound on the front porch. Multiple other family members were also home at the time. She looked out the window, where she saw Carpenter walking up. She immediately started running up the stairs. When she reached the second floor, she heard shots being fired. She then continued up to the third floor, where she called Officer Colon. Her little sister called 911.

Officers responded to the scene. After performing an overview of the scene, eight shell casings were recovered, and damage to the front window was observed, including several projectile holes. Carpenter’s Jeep was found parked a few blocks away. Carpenter later consented to a search of the vehicle. Once inside, officers located Carpenter’s ID in the center console, and four shell casings.

Brian Knowlton, a digital forensic analyst employed by the Delaware County Criminal Investigation Division, was provided Carpenter’s two iPhones for extraction of data pursuant to valid search warrants. Knowlton testified

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about the software he uses for extracting data from cell phones and how he used that software to extract data from both of Carpenter’s iPhones. Using that data, Knowlton was able to determine the G.P.S. coordinates of Carpenter’s phone at the time of the incident, by cross-referencing the data with Google Maps, which placed him in the area of the incident. Appellant was arrested and charged with four separate criminal informations for the four separate incidents.

On March 5, 2019, the Commonwealth filed a motion for joinder of the four complaints pending against Carpenter. Specifically, the Commonwealth argued that all four incidents occurred within a three-month time period, involved the same victim, and when heard together paint the complete picture of the relationship between Carpenter and the victim. The Commonwealth further argued that evidence of one incident would be admissible at trial in each of the other incidents, and that there was no risk of jury confusion. After a hearing, the trial court granted the motion.

On November 14, 2019, following trial, the jury reached verdicts on each of the four incidents. The jury found Carpenter not guilty on all counts under docket #6866-2018, and docket #6850-2018. On docket #6849-2018, Carpenter was found guilty of terroristic threats and stalking.

Under docket #6873-2018, from which the current appeal lies, the jury found Carpenter guilty of criminal attempt - murder of the first degree, aggravated assault, and discharge of a firearm into an occupied structure. He

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was later sentenced under this docket to nine to eighteen years’ imprisonment, followed by five years’ probation.

Carpenter subsequently filed a post-sentence motion, which the trial court denied after a hearing. This timely appeal followed.

Carpenter raises the following issues on appeal: 1. Whether the lower court erred when it granted the prosecution's pre-trial motion for joinder, where evidence of the offenses charged in the separate [i]nformations would be inadmissible in separate trials for the others, where joinder created the danger of confusion by the jury, and where joinder caused unfair prejudice against [] Carpenter?

2. Whether the lower court erred when, over defense objection, it permitted Brian Knowlton to testify regarding cell phone location data and G.P.S. coordinates, where the prosecution never qualified Mr. Knowlton as an expert by knowledge, skill, experience, training or education, and his testimony in these respects required scientific, technical, and/or other specialized knowledge beyond that which an average [lay person] possesses?

3. Whether the lower court erred when it denied [] Carpenter's post-sentence motion for a new trial based on newly-discovered evidence, where the defense did not discover until after trial material, favorable and/or exculpatory evidence that the prosecution's key witness, the complainant, requested that the "victim's advocate" tell the District Attorney she was unwilling to testify and no longer desired to proceed against [] Carpenter?

Appellant’s Brief, at 5.

In Carpenter’s first issue, he contends the trial court erred in granting the Commonwealth’s pretrial motion for joinder. See Appellant’s Brief, at 5.

Specifically, Carpenter argues it was improper to consolidate the informations in a single trial, because: (1) evidence of the offenses charged in the separate informations would not be admissible in separate trials for the others, (2) -6- J-A08014-21

joinder created the danger of confusion by the jury, and (3) joinder resulted in unfair prejudice against Carpenter. See id. Trial courts wield considerable discretion in deciding whether to consolidate separate indictments for trial: [w]hether or not separate indictments should be consolidated for trial is within the sole discretion of the trial court and such discretion will be reversed only for a manifest abuse of discretion or prejudice and clear injustice to the defendant. Consolidation of separate offenses in a single trial is proper if the evidence of each of them would be admissible in a separate trial for the others and is capable of separation by the jury so that there is no danger of confusion. Evidence of distinct crimes is inadmissible solely to demonstrate a defendant's criminal tendencies. Such evidence is admissible, however, to show a common plan, scheme or design embracing commission of multiple crimes, or to establish the identity of the perpetrator, so long as proof of one crime tends to prove the others. This will be true when there are shared similarities in the details of each crime.

Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa. Super. 2006) (citations omitted).

After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court we conclude that Carpenter’s first issue merits no relief. The trial court opinion properly addresses Carpenter’s first claim, and we adopt it as our own. See Trial Court Opinion, 7/20/2020, at 13-15 (concluding joinder was proper because 1. the incidents in question involved the same defendant, the same victim, and many of the same witnesses, and all four of the incidents occurred within a four- month time period, 2. joinder of all four cases did not suggest to the jury that they should convict Carpenter because of some violent or criminal propensity -7- J-A08014-21

but rather enabled the Commonwealth to present the jury with a complete picture of the history between Carpenter and the victim, which was vital to a determination, 3. there was no risk of jury confusion because each of the incidents occurred at a distinct time and place that are all well documented and the verdict sheets were very clearly drafted, identifying each offense separately by date and time, and 4. specifically noting the lack of jury confusion is evidenced by the fact the jury found Carpenter guilty of only two of the four incidents, showing the jury was able to separate the incidents and determine which ones it found the Commonwealth established beyond a reasonable doubt).

In his second issue, Carpenter contends the trial court erred by allowing Knowlton to testify regarding cell phone location data and G.P.S. coordinates, because he was never qualified as an expert and his testimony required scientific, technical, and/or other specialized knowledge beyond that of a lay person.

Our standard of review for the admission of evidence is well-settled: The admission of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only upon an abuse of that discretion.

An abuse of discretion will not be found based on a mere error of judgment, but rather occurs where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.

To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining -8- J-A08014-21

party. [A]n evidentiary error of the trial court will be deemed harmless on appeal where the appellate court is convinced, beyond a reasonable doubt, that the error could not have contributed to the verdict.

Commonwealth v. Manivannan, 186 A.3d 472, 479-480 (Pa. Super. 2018) (citation and internal quotation marks omitted).

Pennsylvania Rule of Evidence 702, which governs the admission of expert testimony, provides: Rule 702. Testimony by Expert Witnesses A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson; (b) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and (c) the expert's methodology is generally accepted in the relevant field.

Pa.R.E. 702.

In contrast, Pennsylvania Rule of Evidence 701 governs opinion testimony by lay witnesses: Rule 701. Opinion Testimony by Lay Witnesses If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and -9- J-A08014-21

(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Pa.R.E. 701.

Carpenter cites to Manivannan for the proposition that Knowlton was required to be an expert to give the testimony at issue. In Manivannan, this Court held that expert testimony was required to interpret records of e-mail transmissions and the nature of internet protocol (“IP”) addresses linked to an internet service provider, for purposes of demonstrating a connection between an IP address and a real-world location. See Manivannan, 186 A.3d at 483-89. Specifically, we found such information required knowledge of computer science that was “beyond the ken of ordinary laypersons.” See id. at 486-487; see also Commonwealth v. Griffith, 32 A.3d 1231, 1239 (Pa. 2011) (“Pursuant to our general standard, a need for expert testimony arises when the jury is confronted with factual issues whose resolution requires knowledge beyond the ken of the ordinary layman”) (citation and internal quotation marks omitted).

While Manivannan is not directly on point, we find our further distinction between expert testimony and lay testimony in that case instructive: [E]xpert testimony reflects the application of expertise and does not stray[] into matters of common knowledge. We have further explained that expert testimony requires knowledge, information or skill beyond what is possessed by the ordinary juror, and that expert testimony must be distinctly related to a science, skill or occupation which is beyond the knowledge or experience of an - 10 - J-A08014-21

average lay person and does not involve[] a matter of common knowledge.

Manivannan, 186 A.3d at 485 (citations and internal quotation marks omitted).

It was stipulated at trial that valid search warrants were obtained for Carpenter’s cell phone records and for two separate cell phones found on Carpenter. See N.T., 11/13/2019, at 161-62. Knowlton, a forensic analyst, obtained the cell phones through a chain of custody. At trial, Knowlton testified regarding the process of how he extracts data from cell phones, including G.P.S coordinates, and how he then is able to map a person’s location using Google Maps. See id. at 166-170, 182. He denied any knowledge of how the coordinates were calculated. See id. at 181-2, 197-8.

This specific issue is one of first impression in this Commonwealth. While we acknowledge the Commonwealth’s assertion that this technology is in common, everyday use by lay persons, the procedure used here is akin to hearsay. Knowlton did not assert he had independent knowledge of Carpenter’s location; rather, he relied on assertions generated by ostensibly automated processes.

Fundamentally, the issue appears to be limited to the accuracy and reliability of the coordinates generated. Knowlton disclaimed any specialized knowledge on this issue. Further, as Carpenter points out, depending which method is used to generate the coordinates, the accuracy can vary due to circumstances such as cell tower locations. See State v. Steele,169 A.3d - 11 - J-A08014-21

797, 816-817 (Conn. App. 2017). Under these circumstances, it would appear that a witness presenting this testimony would be required to have some knowledge of (a) the method of location used, and (b) the accuracy and reliability of that method in the area in question, whether through personal experience or technical knowledge. Ultimately however, we conclude that we need not decide this thorny issue on the record before us.1 Even assuming, for purposes of this appeal, that Knowlton’s testimony was improper expert testimony, and the trial court abused its discretion in permitting Knowlton to testify regarding the technical process of extracting data from a cell phone and using the G.P.S. coordinates found from that data to track a location, we are convinced, beyond a reasonable doubt, that the exclusion of this evidence would not have impacted the jury’s verdict.

Knowlton’s testimony was not the only evidence linking Carpenter to the crimes charged, nor was it crucial to a guilty verdict. The Commonwealth did not need to establish an affiliation between the G.P.S. data extracted from Carpenter’s cell phones and the real-world physical locations of that data. The victim positively identified Carpenter as the man she saw walking up to the front of her mother’s house moments before she heard gunshots. See N.T.,

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1 Perhaps a future case can create a better record by way of a pre-trial ruling on the admissibility of such evidence, allowing a defendant to present expert evidence challenging the testimony without forcing the defendant to present evidence at trial. Here, the record is devoid of any evidence regarding the accuracy and reliability of the method Knowlton employed in the area of the victim’s mother’s home.

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11/13/2019, at 63-64. Police found shell casings outside the home and bullet damage in the home. See id. at 202, 207. Police also found Carpenter’s vehicle parked nearby with shell casings in it. See id. at 211-218. Officer and crime scene investigator Jeffrey Linowski opined that the bullets had been fired into the home from either the porch or otherwise directly in front of the home. See id. at 211.

Furthermore, the interrelated nature of all the incidents leading up to the shooting provided a res gestae that strongly implied that Carpenter was the person who shot at the victim’s mother’s home. The jury clearly credited the victim’s testimony, along with the testimony of multiple police officers who corroborated the evidence inculpating Carpenter.

Therefore, even if Knowlton had never given his testimony, the jury would have still heard that Carpenter’s vehicle was parked nearby the crime scene. Further, the jury heard the victim’s positive identification of the man she saw walking up to the front of the home moments before she heard shots fired. Finally, these two pieces of evidence were bolstered by the extensive evidence showing that Carpenter had threatened to kill the victim by shooting her. Under these circumstances, we conclude the jury’s verdict would have been the same based on the multitude of other evidence presented. For these reasons, we conclude that to the extent that the G.P.S. evidence was erroneously admitted, said error was harmless.

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Carpenter’s final claim is that the trial court erred when it denied his post-sentence motion for a new trial based after-discovered evidence.

After-discovered evidence is the basis for a new trial when it: 1) has been discovered after the trial and could not have been obtained at or prior to the conclusion of trial by the exercise of reasonable diligence; 2) is not merely corroborative or cumulative; 3) will not be used solely for impeaching the credibility of a witness; and 4) is of such nature and character that a new verdict will likely result if a new trial is granted. Further, the proposed new evidence must be producible and admissible.

Commonwealth v. Chamberlain, 30 A.3d 381, 414 (Pa. 2011) (citations and internal quotation marks omitted). “The test is conjunctive; the defendant must show by a preponderance of the evidence that each of these factors has been met in order for a new trial to be warranted.” Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. 2010) (citations omitted).

In his motion for post-trial relief, Carpenter contended that since the trial he had learned the victim had at some point prior to trial expressed a desire not to proceed, or an unwillingness to testify, to the “victim’s advocate” and had asked that this be communicated to defense counsel. He argued that her apparent wishes were not followed, and as such he should be granted a new trial.

With respect to the first prong, Carpenter simply states that neither he nor his counsel could have obtained this evidence before trial concluded. With respect to the second prong, Carpenter again simply states that this new evidence is not merely corroborative or cumulative, as the jury never heard this evidence during trial from any other source. Regarding the third prong, - 14 - J-A08014-21

Carpenter argues the evidence will not be used solely to impeach the victim, asserting that instead, the victim’s refusal to testify against Carpenter at trial, even if temporary, "calls into serious question" whether she stands by her earlier accusations. Finally, with respect to the fourth prong, Carpenter argues that if this after-discovered evidence was presented to a jury, a different outcome is likely because a skilled defense counsel could use it to obtain a recantation from the victim.

The Commonwealth argues the after-discovered evidence alleged by Carpenter does not entitle him to a new trial because the information provided is inadmissible hearsay and would not compel a contrary result at a new trial.

The trial court addressed this claim during a hearing held on Carpenter’s post-sentence motion as follows: [Defense Counsel]: … And regarding the -- subsection (d), that was -- that information was brought to me after the verdict had gone through regarding the fact that there was a conversation overheard by one of the individuals who was outside in the hallway because they were sequestered in light of the fact that they were -- they potentially could’ve been called as a witness and it was not brought until after the jury’s verdict to my attention.

THE COURT: So hold on there. Let me back this up. It was not discovered until after trial [the victim] specifically requested the victim’s advocate to tell the District Attorney of her desire not to proceed and unwillingness to testify, to which the advocate failed to do so? So did [the victim] testify?

[Defense Counsel]: She did testify.

THE COURT: Well, she could’ve refused to testify when she was on the witness stand.

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[Defense Counsel]: I understand that, Your Honor, and that’s why I did put in there it was afterwards that I found that information.

THE COURT: Well, if she testified, she testified.

[Defense Counsel]: Yes, Your Honor.

THE COURT: She sat here. She had a right to say I don’t want to testify.

[Defense Counsel]: She did, and if that knowledge was known, I could’ve also have questioned her as to whether or not -- THE COURT: Well -- [Defense Counsel]: -- she wanted to do that.

THE COURT: -- that’s hearsay anyhow.

[Defense Counsel]: I understand, sir.

THE COURT: So that’s going to be denied.

N.T., 3/5/2020, at 4-7. The trial court thereafter filed an order denying this claim.

Unless there has been a clear abuse of discretion, an appellate court will not disturb the trial court's denial of an appellant's motion for a new trial based on after-discovered evidence. In order for after-discovered evidence to be exculpatory, it must be material to a determination of guilt or innocence.

Chamberlain, 30 A.3d at 416 (citations omitted).

We conclude Carpenter is not entitled to a new trial. First, the information brought by Carpenter is not actual evidence of anything. There was no actual evidence presented that the victim was reluctant to testify. The information presented by Carpenter is simply inadmissible hearsay. It is not even clear from the record who overheard the alleged comment or who made - 16 - J-A08014-21

the alleged comment. Carpenter has failed to show the alleged statement would be producible or admissible at trial. See Commonwealth v. Scott, 470 A.2d 91, 95 (Pa. 1983).

Moreover, even if the information identified by Carpenter constituted actual evidence, it would not meet the four-prong admissibility test. Although Carpenter argues the “evidence” will not be used solely to impeach the victim, he goes on to state the victim’s refusal to testify against Carpenter at trial, even if temporary, "calls into serious question" whether she stands by her earlier accusations. This is a direct attack on the victim’s credibility. See Commonwealth v. Castro, 93 A.3d 818, 827 n. 13 (Pa. 2014) (finding appellee’s suggestion regarding third prong was based on the degree of impeachment he anticipates he would inflict, and noting that “[e]ven if his impeachment would ‘destroy and obliterate’ a witness, it is still impeachment[.]”).

Carpenter cites to Commonwealth v. Rivera, 939 A.2d 355 (Pa. Super. 2007) for his assertion. In Rivera, we remanded for an evidentiary hearing to determine whether a new trial was required based on after- discovered evidence that a laboratory technician who testified as to the type and amount of drugs recovered at the crime scene allegedly was corrupt and engaged in illegal practices. There, with respect to the third prong, we found the after-discovered evidence did more than simply impeach the technician’s testimony, finding it called “into serious question the type and amount of drug

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upon which Appellant's conviction and sentence is based.” Id. at 359. Here, there is no such additional function of the new information presented by Carpenter.

Therefore, the trial court did not err in denying relief based on Carpenter's claim of after-discovered evidence. Carpenter’s final claim is without merit.

As none of Carpenter’s claims on appeal merit relief, we affirm the judgment of sentence.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/13/2021

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