v.
Bowens, T.
J-E03006-20
2021 PA Super 210
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TERRY BOWENS : : Appellant : No. 341 MDA 2018
Appeal from the Judgment of Sentence Entered October 23, 2017 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0007390-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., OLSON, J., STABILE, J., NICHOLS, J., McLAUGHLIN, J., and KING, J.
OPINION BY BOWES, J.: FILED: OCTOBER 19, 2021
Terry Bowens appeals from the judgment of sentence imposed after he was convicted of multiple drug and firearms offenses. We granted en banc
review to address whether the collection of data from a cell phone that was in police custody, undertaken more than two days after the issuance of the warrant that authorized its search, required suppression of the information obtained. Upon review of that issue and others raised by Appellant, we discern no cause to disturb the trial court’s suppression ruling and affirm Appellant’s judgment of sentence.
I. Facts and Procedural History
Appellant’s convictions stem from a traffic stop on Route 30 in York, Pennsylvania at approximately 6:30 p.m. on October 12, 2016. At that time, Pennsylvania State Trooper Wesley Johnson, observing traffic from his marked
J-E03006-20 police cruiser, saw a gray Chrysler 200 with New Jersey plates commit a traffic violation. See N.T. Pretrial Motions, 4/6/17, at 4-5.1 He activated his lights
and pulled the vehicle over to find two occupants: Maxi Echevarria in the driver’s seat and Appellant in the front passenger seat. Id. at 6-7. Echevarria produced documents revealing the vehicle was registered to his partner, Ms.
Solita Thomas of New Jersey, whom he indicated had given him permission to drive it. Id. at 7, 11. Echevarria represented that he and Appellant were journeying from York City to Lancaster, possibly further on to Philadelphia.
Id. at 9. Trooper Johnson ran Echevarria’s information and determined that he had a suspended license and an active arrest warrant. Id. at 12.
Trooper Johnson then spoke with Appellant who, during the officer’s interaction with Echevarria, had repeatedly put his hands out the window to
signal Trooper Johnson. Trooper Johnson, based upon his experience, perceived this as an effort to interrupt his questioning of Echevarria and an
“attempt to control the situation, control the information, conversation, and their environment.” N.T. Trial, 9/13-15/17, at 144. Appellant offered “Terry
Bowen” rather than “Terry Bowens” as his name, and also provided a birthdate that was off from the correct date by one day and one year. Appellant was
____________________________________________ 1 In discussing evidence pertinent only to Appellant’s pretrial suppression motion, we rely upon the transcript from the pretrial hearing. When referencing testimony or exhibits pertinent to analyzing the sufficiency of the evidence to sustain Appellant’s convictions, we cite to the trial transcript. While the overlap is substantial, it is not complete.
[*731]J-E03006-20 unable to supply a social security number. Id. at 145-46. Trooper Johnson requested that Appellant show him his Facebook profile in an attempt to establish his identity. Appellant used his Samsung Galaxy smart phone to access his Facebook profile, which identified Appellant as “Nino Brown.” Id. at 147-49. Trooper Johnson eventually ascertained Appellant’s identity, as well as the fact that he also had an active arrest warrant. Id. at 149.
Appellant and Echevarria were both arrested at the scene pursuant to the outstanding warrants and their phones were seized. Id. at 173-74.
With the owner of the vehicle in New Jersey and both occupants of the vehicle being taken into custody, Trooper Johnson determined that the vehicle
required a tow and conducted an inventory search. He discovered that the vehicle’s glove box was locked. After obtaining the key,2 permission from the vehicle’s owner, and a search warrant, police searched the vehicle and seized
a 9mm Ruger SR9c firearm, a .40 caliber Kahr firearm, heroin, a cutting agent, and packaging. Id. at 149-50. The Ruger had been reported stolen, while the serial number on the Kahr had been obliterated, preventing the police from running a query to see if it had been reported. Id. at 157-59.
____________________________________________ 2 At the hearing on pretrial motions, Trooper Johnson explained that the vehicle’s owner indicated that Echevarria should have the key, but it was not on the key fob produced by Echevarria on the scene. It was later found on his person after he was transported to central booking. See N.T. Pretrial Motions, 4/6/17, at 14-15.
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After recovering the contraband, Trooper Johnson applied for and was issued warrants on October 14, 2016, to search Appellant’s phone as well as two phones seized from Echevarria. Trooper Johnson secured the devices by
putting them in airplane mode, turning them off, and wrapping them in aluminum foil to prevent the data thereon from being accessed and altered remotely. See N.T. Pretrial Motions, 4/6/17, at 113-14. He then immediately sent the devices to Detective Mark Baker. Id. at 113, 116.
Detective Baker conducted a forensic analysis of Appellant’s phone, which was the only one of the three that could be analyzed using a Cellebrite
Touch device. See N.T. Trial, 9/13-15/17, at 193-95. Detective Baker was able to access contacts, applications, texts, photos, and video on Appellant’s
phone. The photographic images recovered were thumbnails located in the phone’s image cache directory. Id. at 200. The presence of an image in the cache directory did not mean that the photo was taken by Appellant’s phone, as opposed to having been received by his phone via text message or other means. Id. at 200, 204. Rather, it meant only that the photos were viewed by the phone’s user at some point, and thumbnails saved for faster repeat viewing. Id. at 200.
Among the nearly 4,000 images recovered were multiple selfies3 of Appellant, selfies of people other than Appellant, and a photograph of a Ruger
____________________________________________
3 Detective Baker explained that “selfie” is a colloquial term for a photographic self-portrait. See N.T. Trial, 9/13-15/17, at 201.
[*733]J-E03006-20 identical to the Ruger recovered from the glovebox of the Chrysler 200. Id.
at 199-201, 231-34, 236, 242-45. Text messages from October 8, 10, and 11, 2016, sent and received between Appellant’s phone and one of the phones seized from Echevarria,4 revealed plans to secure transportation and both
9mm and .40 caliber ammunition and travel to Lancaster to sell heroin. See id. at 267-81, Court Exhibit 1 at 14, 22, 44.
Appellant was charged with criminal conspiracy to commit PWID, possession of heroin, possession with intent to deliver heroin (“PWID”), possession of drug paraphernalia, possession of a firearm with an altered serial number, receiving stolen property (“RSP”), and firearms not to be
carried without a license. Prior to trial, Appellant sought to suppress the images and text messages extracted from his phone, arguing that the warrant had expired prior to its execution. Unpersuaded, the trial court declined to suppress the texts between Appellant and Echevarria in the days prior to the traffic stop.5
At trial, Appellant’s defense was that the Commonwealth’s evidence failed to establish that he had anything to do with the contraband, but rather
____________________________________________ 4 While the Cellebrite device was not able to obtain the data from Echevarria’s sliding Kyocera phone, Trooper Johnson was able to read the text messages on the phone itself. See N.T. Trial, 9/13-15/17, at 234-35. 5 The trial court did, however, preclude the Commonwealth from utilizing information that had not been on the phone before the warrant’s deadline for service expired.
[*734]J-E03006-20 showed only his mere presence in the car. See id. at 136-38, 322. He maintained that any nervousness on his part during Trooper Johnson’s traffic stop was due to the outstanding warrant against him, rather than any guilty knowledge of the contents of the glove box. See id. at 148, 325, 327-28. He posited that the presence of selfies of other people on his phone indicated that it was a community phone, and that the drug-related texts recovered from it were sent by one of its other users. Id. at 329-33. The jury nonetheless found Appellant guilty on all charges except possession of the Kahr pistol with the altered serial number.
Following a presentence investigation, the trial court sentenced
Appellant to an aggregate term of fifteen and three-quarters to thirty-one and one-half years of imprisonment. Appellant filed a timely post-sentence motion
in which he, inter alia, challenged the admission of the text messages and photographs and requested reconsideration of his sentence. The trial court denied the motion by order of January 22, 2018. Appellant filed a timely notice of appeal, and both he and the trial court complied with Pa.R.A.P. 1925.
A three-judge panel of this Court (1) reversed the denial of Appellant’s motion to suppress the evidence recovered from Appellant’s smart phone; (2)
granted Appellant a judgment of acquittal on his convictions for PWID, receiving stolen property, firearms not to be carried without a license, and possession of drug paraphernalia based upon lack of evidentiary sufficiency; and (3) remanded for a new trial on the conspiracy charge.
[*735]J-E03006-20
The Commonwealth filed a timely petition for reargument en banc. By
order of March 19, 2020, this Court granted the Commonwealth’s petition, withdrew the prior opinion, and directed the parties to submit argument on the following issues:
(1) Whether the trial court erred in denying suppression of data that was copied and reviewed from a seized cell phone more than two days after expiration of the relevant warrant? and
(2) If the data should be suppressed, whether the proper remedy is acquittal of the offenses due to insufficiency of evidence, or remand for a new trial?
Order, 3/19/20, at unnumbered 2. The parties filed substituted briefs arguing those issues and more. Due to the COVID-19 pandemic, oral argument was held remotely on December 3, 2020, and this appeal is ripe for our disposition.6
Appellant presents the following questions, which we have reordered for ease of disposition:
[1.] Was there insufficient evidence that [Appellant] possessed the guns, drugs, and paraphernalia found in the locked glove compartment of the car he was riding in where all indicia of ability and intent to exercise dominion and control over these items related to the driver?
[2.] Was there insufficient evidence that [Appellant] knew or believed the Ruger handgun was probably stolen where there was no evidence of when, where, or how the gun was stolen and its serial number was intact?
____________________________________________ 6 This appeal was reassigned to the author on June 28, 2021.
[*736]J-E03006-20
[3.] Did the trial court err in failing to suppress the fruits of a search of a cell phone backed with a warrant that had expired by the time the search was executed?
[4.] Did the court err in finding incriminating text messages had been authenticated for use against [Appellant] where the messages did not reveal their author and evidence showed others used the phone in question?
[5.] Did the sentencing court abuse its discretion in imposing three times the recommended incarceration, including multiple consecutive terms, based in part on convictions that were already included in [Appellant’s] prior record score and the unsupported notion that [Appellant] was the leader in a criminal enterprise?
Appellant’s brief at 5.
II. Challenges to the Sufficiency of the Evidence to Sustain Appellant’s Convictions
We begin with the legal principles pertinent to Appellant’s challenges to the sufficiency of the evidence. Our standard of review is as follows:
We assess the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict-winner. We must determine whether there is sufficient evidence to enable the fact-finder to have found 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 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.
[*737]J-E03006-20
Commonwealth v. Wallace, 244 A.3d 1261, 1273-74 (Pa.Super. 2021)
(cleaned up). Whether evidence was properly admitted does not factor into
our analysis, as sufficiency is not determined upon a diminished record. See, e.g., Commonwealth v. Brown, 212 A.3d 1076, 1084 (Pa.Super. 2019).
Lastly, “the trier 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.” Wallace, supra at 1274 (cleaned up).
A. The Evidence Was Sufficient to Establish that Appellant Had Possession of the Contraband Appellant first challenges the adequacy of the Commonwealth’s evidence to establish the possession element of each of the possessory offenses. It is well-settled that “possession can be found by proving actual possession, constructive possession, or joint constructive possession.”
Commonwealth v. Parrish, 191 A.3d 31, 36 (Pa.Super. 2018) (cleaned up).
As with any element of a crime, “circumstantial evidence may be used to establish a defendant’s possession of drugs or contraband.” Commonwealth v. Macolino, 469 A.2d 132, 134 (Pa. 1983).
Actual possession is self-explanatory. Concerning constructive possession, our Supreme Court has explained as follows:
Where possession is an element of the offense, the concept of constructive possession is a legal fiction used to prove the element although the individual was not in physical possession of the prohibited item. The evidence must show a nexus between the accused and the item sufficient to infer that the accused had the power and intent to exercise dominion and control over it. Dominion and control means the defendant had the ability to
[*738]J-E03006-20
reduce the item to actual possession immediately, or was otherwise able to govern its use or disposition as if in physical possession. Mere presence or proximity to the contraband is not enough. Constructive possession can be established by inferences derived from the totality of the circumstances.
Commonwealth v. Peters, 218 A.3d 1206, 1209 (Pa. 2019) (citations omitted). Constructive possession requires no proof that the defendant had been in actual possession of the contraband at another time. See id. at 1211
(“[C]ourts and prosecutors have not treated evidence of prior physical possession as a necessary prerequisite to constructive possession.”).
Another basis for imputing possession by a defendant in the absence of direct evidence of actual possession is conspiracy liability. It is hornbook law
that a member of a conspiracy is criminally culpable for all actions taken in furtherance of the conspiracy. See, e.g., Commonwealth v. Lambert, 795
A.2d 1010, 1017 (Pa.Super. 2002) (en banc) (“All co-conspirators are responsible for actions undertaken in furtherance of the conspiracy regardless of their individual knowledge of such actions and regardless of which member
of the conspiracy undertook the action.” (cleaned up)). Consequently, “successful proof of a conspiracy makes each co-conspirator fully liable for all of the drugs recovered, without the necessity of proving constructive possession.” Commonwealth v. Perez, 931 A.2d 703, 709 (Pa.Super.
2007).
We now apply these principles to Appellant’s case. Appellant’s argument as to all of the possessory offenses is that the evidence revealed only that
- 10 -
J-E03006-20
Appellant was present at the scene, and pointed only to Echevarria, the driver of the car and possessor of the key to the locked glove box, as the constructive possessor of the contraband recovered from the vehicle. See Appellant’s brief
at 49 (“[T]he Commonwealth merely proved [Appellant’s] proximity to the contraband giving rise to his possessory convictions. But all indicia of actual dominion or control related only to Echevarria, or were connected to the actual
contraband in the most tenuous ways.”). He avers that any consciousness of guilt suggested by his evasive behavior during the traffic stop was not linked to the contraband in the glove box, but instead to the fact that there was an active warrant for him in an unrelated matter. See Appellant’s reply brief at
17.
Appellant’s argument fails for more than one reason. First, Appellant
was convicted of conspiracy to commit PWID. Appellant does not attack the evidentiary sufficiency of that conviction,7 and we observe that the Commonwealth’s evidence amply demonstrated that Appellant and Echevarria had formed an agreement to sell heroin. Specifically, the Commonwealth introduced evidence that the following text messages were sent and received by Appellant’s phone in the days before the traffic stop:
____________________________________________
7 Appellant’s challenge to the evidence that sustained his conspiracy conviction
is based upon his suppression argument which we address infra, not that there was insufficient evidence to prove the offense admitted at trial. See, e.g., Commonwealth v. Brown, 212 A.3d 1076, 1084 (Pa.Super. 2019) (explaining that a sufficiency review is not conducted upon a diminished record).
- 11 -
J-E03006-20
October 8, 2016
Appellant to Echevarria:8 What its looking like
Echevarria to Appellant: Same position
Appellant to Echevarria: Damn do you have somebody that will grab a rental for us?
Echevarria to Appellant: Ima ask around bro
Appellant to Echevarria: Rd I got the bread
Echevarria to Appellant: Im dieing down here bro… I need something to bust a jug…
Appellant to Echevarria: Something like what and do you got 9 shell
Echevarria to Appellant: It don’t matter what it is… And Yea got u
Appellant to Echevarria: I only got D until Monday I get more p’s
October 10, 2016
Echevarria to Appellant: I’m Tryin work on a wheel bro
Appellant to Echevarria: Saynomore
Appellant to Echevarria: See wassup wit them shells and guess who I start talking to?
Echevarria to Appellant: Who that… And they 40 shell… We can go to Walmart and get them jawns our self
____________________________________________
8 Trooper Johnson testified that the number connected to the Kyocera phone
recovered from Echevarria was XXX-XXX-2007. See N.T. Trial, 9/13-15/17, at 234-35. The texts we identify as being to or from Echevarria were sent to or received from that number.
- 12 -
J-E03006-20
Appellant to Echevarria: Not me and BRI from da county
Appellant to unknown person: Give me 4k for 100 b’s is in your Bm car
Unknown person to Appellant: Huh?
Appellant to unknown person: My fault wrong person
October 11, 2016
Appellant to Echevarria: I’m about to bag up right now ! Then we on
Echevarria to Appellant: Rd
Appellant to Echevarria: Bro where we going
Echevarria to Appellant: Lancaster
Appellant to Echevarria: Rd
Appellant to Echevarria: You got tree bags ?
Echevarria to Appellant: No
Appellant to Echevarria: Ard what time you trying to be out?
Echevarria to Appellant: Soon bro
See Court Exhibit 1 at 14, 22, 44. See also N.T. Trial, 9/13-15/17, at 267-
80.
Detective Fenstermacher was qualified as an expert in the packaging and sales of illegal drugs. See N.T. Trial, 9/13-15/17, at 253-54. He explained, inter alia, that “RD” is slang for “alright,” that to “bag up” means to put bulk drugs into small bags for resale, that “9 shell” and “40 shell” indicated 9mm and .40 caliber ammunition, that “grabbing a rental” and - 13 -
J-E03006-20
“working on a wheel” referred to securing a vehicle, and that “B” stands for bundle, “BM” for baby momma, and “D” for dope, particularly heroin. Id. at
267-80. Additionally, he testified that drug trafficking is a dangerous activity
and firearms are commonly involved to protect the people, product, and money associated with the trade. Id. at 257-58. Ultimately, Detective
Fenstermacher opined to a reasonable degree of professional certainty that the text messages amounted to “ongoing conversations between persons involved in drug trafficking . . ., particularly heroin.” Id. at 281.
Given this evidence, Appellant’s attempt to deflect culpability for possession of the contraband on Echevarria is entirely unavailing. Based upon
the case law discussed supra, Appellant was criminally liable for the actions of his co-conspirator in furtherance of the conspiracy, including possession of the contraband.9 See Perez, supra at 709; Commonwealth v. McCall, 911
A.2d 992, 997 (Pa.Super. 2006) (holding evidence of PWID was sufficient
based upon conspiracy liability although there was no evidence that the defendant possessed the drugs that were delivered by his co-conspirator).
____________________________________________ 9 The Commonwealth does not argue conspiracy liability as a basis for this Court to reject Appellant’s challenge to the possession elements of the various crimes. However, at trial the Commonwealth advocated conspiracy liability as a basis for finding Appellant guilty, and the trial court instructed the jury that, if it concluded that Appellant had entered into a conspiracy, it could find Appellant guilty based upon the actions of his co-conspirator. See N.T. Trial, 9/13-15/17, at 339-40, 391-92. - 14 - J-E03006-20 Consequently, Appellant is just as culpable for Echevarria’s possession of the drugs, paraphernalia, and guns as Echevarria himself. Second, the certified record belies Appellant’s contention that the evidence offered at trial failed to establish any connection between him and the contraband. The jury saw photographs taken from Appellant’s phone of the exact model of Ruger that was found in the glove box next to Appellant’s knees. See N.T. Trial, 9/13-15/17, at 232-33. Further, as previously discussed, the jury heard that Appellant texted Echevarria about securing 9mm and .40 caliber ammunition and the fact that Appellant himself had been bagging up bundles of heroin. Moreover, Appellant’s provision of a false name and birthdate demonstrated his consciousness of guilt.10 See, e.g., Commonwealth v. Cruz, 21 A.3d 1247, 1253 (Pa.Super. 2011) (finding constructive possession of weapon demonstrated by, inter alia, the consciousness of guilt revealed when the defendant provided the officer with “five or six different names and multiple birthdates”). The foregoing facts allowed the jury to reasonably infer that Appellant was not merely present in the car with the contraband, but that he previously ____________________________________________ 10 As noted above, Appellant maintained his mere presence defense by indicating that the outstanding warrants against him, rather than any knowledge of the contraband in the vehicle, explained his evasive tactics. See N.T. Trial, 9/13-15/17, at 148, 325, 327-28. However, “[t]he fact-finder need not choose between [a defendant]’s several crimes to determine whether one or more would cause” the behavior indicative of a guilty conscience. Commonwealth v. Gomez, 224 A.3d 1095, 1100 (Pa. Super. 2019). - 15 - J-E03006-20 had possession of the drugs, paraphernalia, and 9mm and .40 and caliber guns, or at least the ability to exercise dominion and control over all the items through obtaining actual possession of them or directing their disposition. Compare Commonwealth v. Carr, 227 A.3d 11, 20 (Pa.Super. 2020) (holding incarcerated defendant constructively possessed drugs that he never actually possessed but directed his girlfriend to deliver to a third party), with Commonwealth v. Parrish, 191 A.3d 31, 38 (Pa.Super. 2018) (concluding constructive possession was not proven where the defendant had been in the rear of a multi-passenger vehicle and the contraband was found in the front passenger side door and seat). Hence, the jury received sufficient evidence to reasonably infer that Appellant had constructive possession of the contraband. Accordingly, we reject Appellant’s contention that the Commonwealth failed to offer legally sufficient evidence to establish the possession elements of PWID of heroin, receiving stolen property, firearms not to be carried without a license, possession of heroin, and possession of drug paraphernalia. B. The Evidence Was Sufficient to Establish that Appellant Had Guilty Knowledge that the Ruger Had Been Stolen Appellant’s second sufficiency challenge relates to his RSP conviction. The offense of RSP is defined as follows: “A person is guilty of theft if he intentionally receives, retains, or disposes of movable property of another knowing that it has been stolen, or believing that it has probably been stolen, unless the property is received, retained, or disposed with intent to restore it - 16 - J-E03006-20 to the owner.” 18 Pa.C.S. § 3925(a). Stated differently, to sustain an RSP conviction, the Commonwealth must prove beyond a reasonable doubt “that the property was stolen, that appellant was in receipt, possession or control of it, and that appellant had guilty knowledge, that is, that he knew or had reason to know that the property was stolen.” Commonwealth v. Grekis, 601 A.2d 1275, 1280 (Pa.Super. 1992) (cleaned up). Appellant challenges the evidence supporting the knowledge element of the crime. While mere possession of stolen property is insufficient to establish such knowledge, guilty knowledge may be inferred from unexplained, or unsatisfactorily explained, possession of recently stolen goods. See, e.g., Commonwealth v. Foreman, 797 A.2d 1005, 1012 (Pa.Super. 2002). As with anything else, knowledge may be proven through wholly circumstantial evidence. Id. “Circumstantial evidence of guilty knowledge may include, inter alia, the place or manner of possession, alterations to the property indicative of theft, the defendant’s conduct or statements at the time of arrest (including attempts to flee apprehension), a false explanation for the possession, the location of the theft in comparison to where the defendant gained possession, the value of the property compared to the price paid for it, or any other evidence connecting the defendant to the crime.” Commonwealth v. Robinson, 128 A.3d 261, 268 (Pa.Super. 2015) (en banc). Appellant asserts that there was no direct evidence that he knew that the Ruger, which, unlike the Kahr, had an intact serial number, had been - 17 - J-E03006-20 stolen, and that the circumstantial evidence was not enough to move beyond the point of conjecture. See Appellant’s brief at 51. Specifically, Appellant argues that the Commonwealth’s evidence about the Ruger was simply that it had been reported stolen to the Littlestown Police Department. The jury heard no evidence regarding from whom it was stolen, when it was reported stolen, or when and how Appellant acquired it. Id. at 51-52. Finally, Appellant maintains that the fact that he was unable to legally purchase a firearm based upon his criminal record is not sufficient to establish that he had knowledge that the firearm was probably stolen. Id. at 53 (citing Robinson, supra at 271-72). Indeed, the Commonwealth did not establish how recently the Ruger had been stolen or reported, or precisely how and when Appellant took possession of it. Therefore, Appellant’s unexplained possession of the gun did not itself give rise to the inference that he knew it was probably stolen. However, we conclude that the evidence offered at Appellant’s trial proved far more than mere possession of stolen property that was present in the authority relied upon by Appellant. See, e.g., Robinson, supra at 269-70 (finding evidence insufficient where the Commonwealth offered no evidence of how recent the theft of the handgun had been, and it was found in an unremarkable location with no effort made to conceal its stolen status). Rather, the evidence is akin to that in Commonwealth v. Gomez, 224 A.3d 1095 (Pa.Super. 2019), where the defendant refused to cooperate with - 18 - J-E03006-20 the officers during a routine traffic stop, declined to provide his license and registration, and used a cell phone to call an attorney. After forcibly extracting the defendant and the passengers from the vehicle, the officers recovered illicit drugs and two stolen firearms, one which had been in the vehicle’s center console and one locked in a safe in a storage compartment under the driver’s seat. The defendant challenged his subsequent conviction for RSP by arguing that the Commonwealth had failed to prove that he knew that the weapons were stolen, and offered no evidence of “when the firearms were stolen, where or from whom they were stolen, or for how long they were in Appellant’s possession.” Id. at 1100. This Court found no merit in the defendant’s sufficiency claim. In finding that the evidence amply demonstrated the guilty knowledge element of RSP, we relied upon the consciousness of guilt evinced by the defendant’s non- cooperation, rejecting his assertion “that his behavior during the traffic stop can be explained by the other crimes he had committed.” Id. As noted earlier, this Court observed that “[t]he fact-finder need not choose between [a defendant’s] several crimes to determine whether one or more would cause [his] obstinate behavior. Rather, based on his conduct, the fact-finder was free to infer that Appellant knew or believed that the firearms were probably stolen.” Id. We also cited the defendant’s status as a previously-convicted felon who was, as a result, incapable of legally possessing a firearm. While we agreed with the defendant that his illegal acquisition of the firearms did - 19 - J-E03006-20 not necessarily prove that he knew they had been stolen, we nonetheless held that “these circumstances are sufficient to enable a fact-finder to infer that a defendant believed that the firearms were probably stolen.” Id. Similarly, in the case sub judice, the trial court opined that Appellant’s knowledge of the stolen nature of the Ruger could be reasonably inferred from the fact that, because Appellant is a person who is prohibited from possessing a firearm, he was “unable to obtain any firearm legally, and would have to resort to illegitimate means and product streams to procure a firearm.” Trial Court Opinion, 3/27/19, at 15. This, in conjunction with the other circumstantial evidence, was enough for the jury to conclude beyond a reasonable doubt that Appellant had guilty knowledge. Id. The Commonwealth details the additional circumstantial evidence of Appellant’s consciousness of guilt as follows: his attempt to insert himself into Trooper Johnson’s interview of Echevarria during the traffic stop, his provision of false identification information, his secreting the Ruger in a locked compartment to prevent its detection, and its placement with Kahl handgun with the obliterated serial number. See Commonwealth’s brief at 40-41. Regarding this last factor, the Commonwealth observes that Appellant’s texts concerning 9mm and .40 caliber ammunition, combined with the proximity of the weapons to him, evidenced his constructive possession of both the stolen 9mm Ruger and the .40 caliber Kahr with the obliterated serial number. Id. (citing Commonwealth v. Grzegorzewski, 945 A.2d 237, 240 (Pa.Super. - 20 - J-E03006-20 2008) (holding the defendant’s possession of a second stolen laptop was relevant to establishing his knowledge of the stolen nature of the laptop at issue)).11 Therefore, the jury was not presented with the mere fact that Appellant had possession of a gun that happened to be stolen. Moreover, Appellant’s attacks on the evidence address each piece of circumstantial evidence in a vacuum, contending each alone is insufficient to establish his guilty knowledge. See Appellant’s reply brief at 18-20. However, that is not the appropriate standard for reviewing the evidence. The jury was tasked with considering the totality of the circumstances, which enabled it to reasonably infer that Appellant knew that the Ruger was probably stolen. Accordingly, we hold that Appellant’s sufficiency challenge to his RSP conviction fares no better than his other sufficiency challenge and merits no relief. ____________________________________________ 11 Appellant’s RSP charge related only to the Ruger, and he insists that this conviction must be based solely upon possession of that weapon, since he had been “acquitted of the offense based on the Kahr[.]” Appellant’s brief at 53. We disagree. It is well-settled that “an acquittal cannot be interpreted as a specific finding in relation to some of the evidence.” Commonwealth v. Thomas, 65 A.3d 939, 944 (Pa.Super. 2013). “Inconsistent verdicts, while often perplexing, are not considered mistakes . . . . Rather, the rationale for allowing inconsistent verdicts is that it is the jury’s sole prerogative to decide on which counts to convict in order to provide a defendant with sufficient punishment.” Id. (cleaned up). Thus, while Appellant was acquitted of the charge related to possession of Kahr with the obliterated serial number, the acquittal does not indicate that the jury rejected Appellant’s constructive possession of it. Hence, Appellant’s simultaneous possession of the Kahr may be considered as relevant circumstantial evidence in analyzing the sufficiency of the evidence to establish Appellant’s knowledge of the stolen nature of the Ruger. - 21 - J-E03006-20 III. Challenges to the Admission of Evidence at Trial We next consider Appellant’s claims assailing the trial court’s evidentiary rulings. We begin by noting that “[t]he admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error.” Commonwealth v. Hudson-Greenly, 247 A.3d 21, 24 (Pa.Super. 2021) (internal quotation marks omitted). “An abuse of discretion occurs when the law is overridden or misapplied, or the judgment exercised was either manifestly unreasonable or the product of partiality, prejudice, bias, or ill will.” Commonwealth v. Orr, ___ A.3d ___, 2021 WL 2696496 at *4 (Pa.Super. July 1, 2021). A. The Trial Court Properly Refused to Suppress the Text Messages and Photos Extracted from Appellant’s Phone Appellant maintains that the evidence obtained from his cell phone should have been suppressed as the product of an illegal warrantless search. We address this question mindful of the following: In reviewing appeals from an order denying suppression, our standard of review is limited to determining whether the trial court’s factual findings are supported by the record and whether its legal conclusions drawn from those facts are correct. When reviewing the rulings of a trial court, the appellate court considers only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. When the record supports the findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. Our scope of review is limited to the evidence presented at the suppression hearing. - 22 - J-E03006-20 Commonwealth v. Bellamy, 252 A.3d 656, 663 (Pa.Super. 2021) (cleaned up). However, “the interpretation of procedural rules is a question of law, so our standard of review is de novo and our scope of review is plenary.” Commonwealth v. Phillips, 141 A.3d 512, 518 (Pa.Super. 2016). Both the Fourth Amendment to the federal constitution and Article I, § 8 of the Pennsylvania constitution prohibit unreasonable searches and seizures. See U.S. Const. Amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”); Pa. Const. Art. I, § 8 (“The people shall be secure in their persons, houses, papers and possessions from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.”). Our Supreme Court has explained that “the twin aims of Article I, Section 8 are the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause.” Commonwealth v. Waltson, 724 A.2d 289, 292 (Pa. 1998). Nonetheless, no right is absolute, and the focus of search and seizure law “remains on the delicate balance of protecting the right of citizens to be free from unreasonable searches and - 23 - J-E03006-20 seizures and protecting the safety of our citizens and police officers by allowing police to make limited intrusions on citizens while investigating crime.” Commonwealth v. Blair, 860 A.2d 567, 571 (Pa.Super. 2004). Generally, searches are unreasonable unless conducted pursuant to a valid warrant supported by probable cause. See, e.g., Commonwealth v. Haynes, 116 A.3d 640, 644 (Pa.Super. 2015) (“[W]arrantless searches are generally presumed unreasonable.”). A warrant is valid if “(1) [p]robable cause exists, and (2) The determination of probable cause is made by the proper neutral issuing authority.” Commonwealth v. McCants, 299 A.2d 283, 285 (Pa. 1973). It is well-settled that, even where a cell phone has already been properly seized, a search of the contents of the phone requires a warrant. See, e.g., Riley v. California, 573 U.S. 373, 403 (2014); Commonwealth v. Fulton, 179 A.3d 475, 489 (Pa. 2018). The constitutional protections against unreasonable searches and seizures also apply to the execution of search warrants. See, e.g., Commonwealth v. McDonel, 601 A.2d 302, 306–07 (Pa.Super. 1991). “Whether the manner of execution of a search warrant is unreasonable is to be determined on a case by case basis.” Id. at 307. Neither constitution contains any requirements about when a warrant must be executed. Rather, it is a question of whether the timing renders the search unreasonable. See, e.g., McCants, supra at 287 (“Any unreasonable time lapse between the issuance of a search warrant by an independent and neutral magistrate, and - 24 - J-E03006-20 the use of the warrant as authority for a search by a police officer jeopardizes the validity of the warrant.” (emphasis omitted)). See also United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (same). The Pennsylvania Rules of Criminal Procedure regulate the issuance and execution of search warrants and offer guidance to ensure valid and proper warrants and searches. See Pa.R.Crim.P. 201-212. Pertinent to this appeal, Pa.R.Crim.P. 205, which speaks to the contents of a search warrant, provided as follows at the time the warrant for Appellant’s phone was issued:12 (A) Each search warrant shall be signed by the issuing authority and shall: (1) specify the date and time of issuance; (2) identify specifically the property to be seized; (3) name or describe with particularity the person or place to be searched; (4) direct that the search be executed either; (a) within a specified period of time, not to exceed 2 days from the time of issuance, or; (b) when the warrant is issued for a prospective event, only after the specified event has occurred; (5) direct that the warrant be served in the daytime unless otherwise authorized on the warrant. . .; ____________________________________________ 12 Technically, it was not until a subsequent amendment that the “(A)” designator was added to Rule 205, along with a new subsection (B). However, as we discuss the amendment later in this opinion, we include the (A) designation throughout to avoid confusion. - 25 - J-E03006-20 (6) designate by title the judicial officer to whom the warrant shall be returned; (7) certify that the issuing authority has found probable cause based upon the facts sworn to or affirmed before the issuing authority by written affidavit(s) attached to the warrant; and (8) when applicable, certify on the face of the warrant that for good cause shown the affidavit(s) is sealed pursuant to Rule 211 and state the length of time the affidavit(s) will be sealed. Pa.R.Crim.P. 205 (effective January 1, 2014 to October 1, 2017). Hence, Pennsylvania has a rule-based requirement that search warrants be executed no longer than two days after their issuance. However, as our Supreme Court has explained: it is important to distinguish between a violation of the fundamental constitutional guarantees of Article I, Section 8 and mere technical noncompliance with the Pennsylvania Rules of Criminal Procedure. We have, in fact, specifically rejected the automatic application of the exclusionary rule to suppress evidence seized pursuant to a search which in some way violates the Pennsylvania Rules of Criminal Procedure relating to the issuance and execution of search warrants. Indeed, it is only when violations of the Rules assume constitutional dimensions and/or substantially prejudice the accused that suppression may be necessary. Commonwealth v. Ruey, 892 A.2d 802, 808 (Pa. 2006) (plurality) (cleaned up). See also Commonwealth v. Mason, 490 A.2d 421, 423 (Pa. 1985) (“[W]e reject the automatic application of the exclusionary rule to suppress evidence seized pursuant to a search which in some way violates the Pennsylvania Rules of Criminal Procedure relating to the issuance and execution of search warrants.”). - 26 - J-E03006-20 A rule of exclusion is properly employed where the objection goes to the question of the reliability of the challenged evidence or reflects intolerable government conduct which is widespread and cannot otherwise be controlled. . . . Therefore, the imposition of a sanction requiring the exclusion of evidence that results from a search where there has not been compliance with the rule must depend upon the relationship of the violation to the reliability of the evidence seized. Id. at 424 (cleaned up). With these principles in mind, we turn to the case sub judice. In its role as fact-finder, the trial court determined that the police took Appellant’s phone into custody when he was arrested on October 12, 2016. See Order and Supporting Memorandum, 6/6/17, at 5. “When seized, the phone was placed into airplane mode, turned off and wrapped in aluminum foil to prevent someone else from remotely accessing the phone and altering its data.” Id. Trooper Johnson authored an affidavit of probable cause based upon the drugs and guns obtained through executing the warrant to search the car and applied for a warrant. The warrant application identified the “items to be searched for and seized” as follows: Any and all evidence electronically stored content and data commonly referred to as call history consisting of dialed calls and received calls. Any and all text messaging data sent or received and the actual cellular telephone number for the seized phone. Any and all pictures, videos, address books, contacts, calendars, notes, etc. N.T. Omnibus Pretrial Motion Hearing, 4/6/17, at Commonwealth Exhibit 5. The description of the premises or person to be searched was listed as “Grey in color Samsung Galaxy S6” and the stated current location was - 27 - J-E03006-20 “Pennsylvania State Police York Station . . . held in evidence under Property Record #H07-21597.” Id. The magistrate issued the warrant on October 14, 2016, indicating that it “shall be served as soon as practicable and shall be served only between the hours of 6AM to 10PM but in no event later than . . . 10:45 A.M. o’clock on Oct. 16, 2016.” Id. “As soon as the search warrants were signed,” Trooper Johnson delivered the phones to Detective Baker for data extraction. See N.T. Omnibus Pretrial Motion Hearing, 4/6/17, at 25. See also id. at 113 (“[I]t was dropped off immediately upon obtaining the search warrant, as I recall.”); 116 (same). Detective Baker confirmed to Trooper Johnson on October 20, 2016, that the extraction had been completed. Id. at 106. It was through this extraction that the Commonwealth obtained the text messages and photographs discussed supra evincing Appellant’s conspiracy with Echevarria and connection to the stolen Ruger. Appellant’s argument in favor of suppression of that evidence is as follows. He maintains that, in this case, the “relevant search was the extraction of data from the Galaxy S6, not the seizure of the phone.” Appellant’s brief at 30. The police had already seized the phone prior to applying for the warrant, and accordingly applied for permission to extract the data from it, not to seize the phone which they already had. Appellant thus contends that the warrant “mandated extraction of the data no later than 10:45 a.m. on October 16, 2016.” Id. at 35. However, the data was not - 28 - J-E03006-20 extracted, and thus the search not conducted, until four days after the warrant expired. Id. Therefore, the search conducted in the absence of a still-valid warrant was in effect a warrantless search. Id. at 35-37. As such, posits Appellant, the search was illegal and its fruits must be suppressed. Id. at 38- 39. In sum, Appellant’s position is simply that the warrant itself, as well as Rule 205(A)(4), required that the data be extracted from his phone no later than by October 16 at 10:45 a.m., and that, because it was not, the search was an illegal, warrantless search requiring suppression of its fruits. For the reasons that follow, we conclude that the warrant was timely served and executed within the applicable two-day timeframe, and that, even if were not, suppression was not an appropriate remedy.