Commonwealth v. Clark

Docket Number552 WDA 2022,J-A11022-23
Decision Date11 September 2023
CourtPennsylvania Superior Court


Appeal from the Judgment of Sentence Entered January 19, 2022 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000230-2021




Appellant Shaurice Dupre Clark, was convicted of two counts of aggravated assault, one count of carrying a firearm without a license, possessing instruments of crime, and recklessly endangering another person, all of which stemmed from his firing a handgun at a vehicle. The trial court imposed a sentence of 102 to 216 months of incarceration. We agree with Appellant that the trial court erred in ruling on Appellant's motion to suppress evidence recovered from the execution of warrants for Appellant's phone and Facebook accounts. As explained in the body of this memorandum, it is not clear what evidence introduced at trial, if any, the Commonwealth obtained from the warrants. We therefore retain jurisdiction and direct the trial court to hold a hearing on this matter. With respect to Appellant's other claims, we find no error.


On August 30, 2020, at 7:03 p.m., officers were dispatched to investigate a reported shooting at 17th and Poplar Streets. A few minutes later, officers received reports of another shooting at 16th and Chestnut, which was approximately five blocks from the Poplar shooting. Patrolman Leroy Learn was the first to arrive, and he observed five shell casings on the ground. Patrolman Justin Seath arrived shortly afterwards, and a witness handed him an item described as "a small wallet keychain," which the witness had found on the ground. N.T. Trial, 11/5/21, at 86. That item included a key to a Mitsubishi vehicle, as well as a WIC card[1] bearing a sixteen-digit identification number. Sergeant Craig Stoker later served a search warrant on the Commonwealth's Department of Health and determined that the card belonged to Savannah Lopez, who had a son, L.C. Further investigation established that Appellant was the father of L.C. DNA testing established that Appellant's "DNA was one of three individuals with DNA on the key and keychain…." Trial Court Opinion, 9/1/22, at 9. Additionally, officers discovered that the Mitsubishi had been struck by bullets at the Poplar scene.

The police located several surveillance cameras and obtained the relevant recordings, one of which shows the shooter pursuing a black BMW.

As described in the affidavits of probable cause for the search warrants, the video depicts "a black male with long hair wearing a dark colored sweat shirt with a zipper. Under the sweat shirt[,] the driver/shooter had on a purple t-shirt with a square picture. He was also wearing dark colored pants and purple and black shoes." Affidavit of Probable Cause, 10/15/20, at 2. Patrolman Nicholas Strauch immediately identified Appellant as the man depicted in the videos and, on this basis, the police began investigating Appellant as the primary suspect.

At trial, the Commonwealth emphasized that the shooter's sneakers and sweatshirt, as captured by one of the surveillance videos, were distinctive. This screenshot taken from that video is illustrative of the sneakers:

(Image Omitted)

The affidavit's reference to a "square picture" is visible in the following screenshot from the same exhibit:

(Image Omitted)

The Commonwealth introduced photographs it recovered from the execution of search warrants upon Appellant's phone and Facebook accounts. Specifically, the Commonwealth introduced photographs depicting Appellant wearing purple shoes, as well as an image of an individual with his back to the camera wearing a sweatshirt with a photograph. The Commonwealth argued that these articles matched what the shooter wore.

Appellant was convicted and sentenced on January 19, 2022, as previously stated. Appellant timely filed post-sentence motions, which were denied by order and opinion filed April 6, 2022. Appellant timely filed a notice of appeal and complied with the trial court's order to file a concise statement.

The court issued its opinion in response, and we now address Appellant's four claims:

1. Did the trial court commit an abuse of discretion when it admitted all of the surveillance videos, over Appellant's objection, as the Commonwealth did not present a witness capable of authenticating that what was portrayed on the videos was a fair and accurate depiction of the events that occurred?
2. Did the trial court commit an abuse of discretion when it permitted the Commonwealth to introduce Facebook images/videos as the Commonwealth could not authenticate who authored, created or posted the material?
3. Did the trial court commit an abuse of discretion when it permitted the Commonwealth to call officer Nicholas Strauch, over Appellant's objection, where his testimony invariably suggested that Appellant had multiple interactions with the police and/or the police had an uncommon familiarity with Appellant as the probative value of this testimony was outweighed by its prejudicial effect?
4. Did the trial court err when it denied Appellant's request to suppress the data and images retrieved from the iPhone and Facebook as the police lacked probable cause to search the iPhone and as the search warrants for both were unconstitutionally overbroad?

Appellant's Brief at 8 (reordered for ease of disposition).


Appellant's first issue challenges the admission of multiple surveillance camera videos. Appellant posits that the Commonwealth failed to authenticate the surveillance videos because it failed to call any witness with personal knowledge of what the videos depicted:

In the instant case, no person with personal knowledge of the day's events provided any testimony that the videos taken … accurately depicted the events that occurred on that day. Rather, the Commonwealth purported to authenticate these videos by presenting the testimony of individuals who either installed the surveillance equipment or had familiarity with the system.

Appellant's Brief at 47.

We conclude that the Commonwealth sufficiently authenticated the videos. Pennsylvania Rule of Evidence 901 governs the authentication of evidence. "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." Pa.R.E. 901. The Rule includes a list of "examples only-not a complete list- of evidence that satisfies" this requirement. Pa.R.E. 901(b). "Generally, authentication requires a low burden of proof," Commonwealth v. Jackson, 283 A.3d 814, 818 (Pa. Super. 2022), as the Rule simply requires that the proponent offer "evidence sufficient to support a finding that the item is what the proponent claims it is." Pa.R.E. 901(a). We review the trial court's ruling for an abuse of discretion. Commonwealth v. Mangel, 181 A.3d 1154, 1159 (Pa. Super. 2018).

Appellant faults the Commonwealth for failing to call a witness who directly observed the incidents. Appellant's Brief at 46 ("Rule 901(b)(1) provides that one way of satisfying the requirement is through the testimony of a witness with knowledge that an item is what it is claimed to be.") (internal quotation marks omitted). This is an accurate statement of the law. However, the Commonwealth did not rely on this theory of authentication. Instead, the Commonwealth relied on the evidence of the technicians who were familiar with the video surveillance system to authenticate the items. This falls within the scope of Pa.R.E. 901(b)(9), which permits authentication based on "[e]vidence describing a process or system and showing that it produces an accurate result." Pa.R.E. 901(b)(9).

The trial court did not explicitly cite this provision, but its order and opinion denying Appellant's post-sentence motions alluded to these concepts, concluding that the "Commonwealth showed that [the cameras] were functioning properly at the time in question, the positioning of the cameras[,] and that those cameras were surveilling and recording the areas and streets that they were specifically designed to view and record." Opinion and Order Denying Post-Sentence Motions, 4/7/22, at 3 (unnumbered). We agree with the trial court.

We briefly note Appellant's discussion of Commonwealth v. McKellick, 24 A.3d 982 (Pa. Super. 2011), which Appellant states is the one decision "that permitted the Commonwealth to allow a third party, who did not personally observe the events in question, to authenticate a video purporting to show those events." Appellant's Brief at 48. In McKellick, the Commonwealth prosecuted the defendant for a DUI. The Pennsylvania State Trooper who arrested McKellick was killed in the line of duty, and the Commonwealth presented a video of the dashboard-mounted video camera, which was narrated by testimony from other Pennsylvania State Police Troopers who were generically familiar with the recording system.[2] We held that the recording was sufficiently authenticated because of their familiarity with the system and the lack of an allegation that the video had been fabricated or altered.

Appellant argues that this case is distinguishable from McKellick because "Detective Stoker's own testimony revealed that multiple, innocent bystanders were present at the corner of 16th and Chestnut Streets at the time of the shooting." Appellant's Brief at 48. Appellant also cites the dissenting opinion of then-Judge now Justice, Donohue, which argued, in pertinent part, that a witness cannot authenticate a...

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