Com. v. Beattie, K. ( 2017 )


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  • J-A31040-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    v.
    KEVIN BEATTIE
    Appellant                No. 135 EDA 2016
    Appeal from the Judgment of Sentence December 7, 2015
    in the Court of Common Pleas of Philadelphia County Criminal Division
    at No(s): CP-51-CR-0011069-2012
    BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*
    MEMORANDUM BY FITZGERALD, J.:                       FILED AUGUST 15, 2017
    Appellant, Kevin Beattie, appeals from his judgment of sentence of
    three to six years’ imprisonment following the revocation of his probation.
    Appellant contends that the trial court (1) improperly admitted hearsay into
    evidence without proper authentication; (2) erred by finding the evidence
    sufficient to revoke his probation; and (3) erred in holding a revocation
    hearing prior to trial on the new charges involving terroristic threats.     We
    affirm.
    On January 13, 2013, Appellant pleaded guilty to arson1 and
    conspiracy2 for setting fire to a playground structure in a South Philadelphia
    park, causing approximately $325,000.00 in damages. On March 14, 2013,
    *
    Former Justice specially assigned to the Superior Court.
    1
    18 Pa.C.S § 3301(c)(1).
    2
    18 Pa.C.S. § 903.
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    the trial court sentenced Appellant to eleven and one-half to twenty-three
    months’ imprisonment followed by five years’ probation. On September 26,
    2013, Appellant was paroled.
    On June 22, 2015, while Appellant was serving the probationary
    portion of his arson sentence, he was arrested and charged with simple
    assault, aggravated assault and recklessly endangering another person.3 On
    July 9, 2015, Appellant was arrested for terroristic threats, possession of a
    prohibited firearm and related offenses.      The trial court granted the
    Commonwealth’s request to proceed with a probation violation hearing
    before trial on the new charges, also known as a Daisey Kates4 hearing.
    On July 28, 2015, the court held the Daisey Kates hearing.        The
    Commonwealth presented two witnesses, sisters Kathleen and Regina
    Foland, who testified that Appellant sent them threatening Facebook
    messages. Kathleen testified that Appellant sporadically lived with her and
    her fiancé, Harry Thompson, at their house between December 2014 and
    April 2015. Kathleen knew that Appellant closely associated himself with a
    professional wrestler, Randy Orton, and “always said” that he was Orton.
    N.T. Revocation Hr’g, 9/14/15, at 30-31, 55.      In the summer of 2015,
    Kathleen was pregnant with her second child with a due date in August. She
    3
    The Commonwealth subsequently withdrew prosecution on these charges.
    4
    See Commonwealth v. Kates, 
    305 A.2d 701
    , 706 (Pa. 1973) (following
    new charges against probationer, court is authorized to hold violation of
    probation hearing before trial on new charges takes place).
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    and her fiancé Harry also had a four year old daughter, Courtney, who lived
    in their house. Kathleen testified that in April 2015, she directed Appellant
    to move out of her house after witnessing him break her window, and
    because “he beat up [his girlfriend] Janet and they went to court for it and
    she dropped the charges because he told her to drop the charges against
    him.” Id. at 51.
    Kathleen testified that she received a Facebook “friend” request from
    an account under the name of “Randy Orton,” but which bore Appellant’s
    photograph.     Having heard Appellant frequently refer to himself as Orton,
    she knew that the Facebook request was from him. On June 13, 2015, she
    accepted the “friend” request.
    On June 14, 2015, one day after accepting the “friend” request, she
    received     approximately    twenty   threatening    messages,    as      well   as
    photographs of Appellant pointing a gun. She noticed that prior to sending
    the threats, the photograph for the account was changed from Appellant to
    Randy Orton.
    The first message to Kathleen came with the photograph of Appellant
    pointing what she believed to be a real gun, with the words: “Your next.”
    The second message read:
    Hey, you fat pregnant bitch. Me and Janet is on our way
    over there to blow up your house and we going to fuck
    Jermaine up. Tell him that Ant and I got a little present for
    y’all. Tell your precious Courtney she is going to get it too
    and Brittany and Harry is going to get wiped out with a
    patch of a bomb on that house. We on our way. We
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    might just come and do it at night while you are sleeping
    again and tell your sister we won’t blow her head off.
    Id. at 34-35.    Kathleen testified that Jermaine was a friend of Appellant’s
    who also had lived in her house for a period of time. Id.
    The third message stated: “Fucking bitch. You is a bitch.    I am not
    scared of the cops.     When you see Jermaine today, tell him I’m going to
    [kill] him. I’m going to kill Harry. I am going to kill Courtney, Brittany, and
    you.”     The fourth message read: “Tell your punk ass brother to come
    outside. Yeah. I’m right here. Your brother is a punk ass bitch because he
    pulled out a fake sword [on] Jermaine. He is a punk ass. We about to break
    your brother’s windows. I’m going to blow your house up to the ground.”
    She received more pictures of Appellant holding a gun with the text: “You’re
    going to see this or I got a gun.” Id. at 35-36.
    Another message stated: “Your sister is a fat ass bitch. Your wife is a
    fat ass bitch. Me and Lisa and Kelly and Janet we live next door to you all.
    We live with Lisa Peewee in her basement right now watching you all. See
    you all tonight when your window get broken [in].” Kathleen knew that Lisa
    was a friend of Appellant’s wife, Kelly, and lived two houses away from her
    own. Id. at 36-37, 47. Yet another message, read: “Your young is a bitch.
    He is going to kill Courtney.     This is Janet.”   Kathleen opined that Janet
    could not have sent the message, because she was with her grandmother at
    the time. Id. at 37, 46. The final message indicated: “Randy Orton. Time
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    is coming for you. This is Kevin. You are dead. The families [leave] to me
    and Kelly is coming for you bitches.” Id. at 37.
    The other complainant, Regina, testified that at 3:19 a.m. on June 14,
    2015, she received three Facebook messages from an account listed under
    the name “Randy Orton.” The first message stated: “Time is coming for you
    and yours next,” with a row of smiley face emoticons.        Id. at 6-16.   The
    second message read: “Kelly, Janet and Kevin is coming for you and yours.”
    Regina also received a photograph of Appellant pointing a gun at the camera
    with the text: “You’re first.” The same photograph was sent a second time,
    with the message: “Your daughter Brittany, she’s next.” Regina’s daughter
    Brittany was seventeen years old at the time. Id. at 13-17.
    Regina recognized Appellant’s photograph immediately, having met
    him twice at Kathleen’s house.      She knew that Janet was Appellant’s
    girlfriend, and that “Kelly” was both Appellant’s wife and the sister of
    Kathleen’s fiancé, Harry. Regina also knew that Appellant had contact with
    her daughter, Brittany, when Brittany lived with Kathleen.
    The messages frightened Kathleen and Regina and placed them in fear
    for their own and their families’ safety. After Appellant’s arrest on July 9,
    2015, Kelly came to Kathleen’s house and asked her to drop the charges.
    Kathleen refused.    According to Kathleen, she gave birth to her son
    prematurely due to the stress caused by the threats. Id. at 39, 55-56.
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    Appellant presented Joell McNiff as a witness, who testified that she
    received a photograph of Appellant carrying gun in a message over Facebook
    from “Kelly Coppertino” on March 4, 2015. McNiff testified that the picture
    that she received was the same picture that Regina and Kathleen received.
    McNiff claimed that the message came from Kelly Coppertino because she
    recognized Coppertino’s cellphone number. Id. at 59-69.
    Appellant testified on his own behalf and denied sending any
    threatening text messages or having any problems with Kathleen.              He
    further denied knowing Courtney and Brittany despite acknowledging that he
    had lived with Kathleen.    He stated that he first saw the picture of him
    holding the gun on Jermaine’s Facebook page in March 2015.            Appellant
    attempted to attribute the messages to Jermaine. Appellant denied that the
    Randy Orton account was his. However, he further admitted that while on
    probation, he traveled to New Hampshire in May 2015 without permission
    and returned in June 2015 for a court date. Id. at 86-94.
    The trial court found Appellant in violation of his probation, stating that
    it found the Commonwealth’s evidence credible.      The trial court concluded
    that the Commonwealth had proven that probation “no longer continues to
    be a method of supervising.” Id. at 108-09.
    At sentencing on December 7, 2015, the Commonwealth sought a
    term of imprisonment based on the evidence presented at the Daisey Kates
    hearing, the fact that Appellant went to New Hampshire without permission
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    while on probation, and his positive drug test for THC ingested in a
    marijuana brownie. N.T. Sentencing Hr’g, 12/7/15, at 19-22. The trial court
    sentenced Appellant to three to six years’ imprisonment.             Id. at 27.    On
    January 4, 2016, Appellant filed this appeal.       Both Appellant and the trial
    court complied with Pa.R.A.P. 1925.
    Appellant raises the following issues in this appeal:
    A. Did the [t]rial [c]ourt err in admitting into evidence
    hearsay documents without proper authentication?
    B. Was the [e]vidence admitted by the [t]rial [c]ourt
    [s]ufficient to [f]ind [Appellant] in technical violation of his
    probation?
    C. Did the [t]rial [c]ourt err in holding a Dais[e]y Kates
    hearing for [Appellant] to begin with?
    Appellant’s Brief at 4.
    Appellant first argues that the trial court erred in admitting the
    Facebook messages during his revocation hearing because they were
    unauthenticated and constituted hearsay. We disagree.
    Preliminarily, we note that Appellant’s argument may be deemed
    waived.      Appellant’s   counsel    objected    once    to   the    form    of   the
    Commonwealth’s       question   regarding    whether     Regina      “ever   got   any
    messages from [Appellant] about [her] daughter[.]” N.T. Revocation Hr’g at
    11. Counsel asserted:
    Well, [the Commonwealth] said did you ever get a
    message from [Appellant]. So far, [the Commonwealth]
    established that [Regina] received messages from Randy
    Orton. So I think we have to keep the focus narrow to the
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    messages she received from Randy Orton. You haven’t
    established that she received messages from [Appellant]
    yet.
    Id. at 11. Although the trial court sustained the objection to the form and
    directed the Commonwealth to rephrase its question, Appellant did not seek
    to preclude the messages. Moreover, Appellant did not object when Regina
    and Kathleen testified that Appellant sent them the messages.           Id. at 15,
    41. Therefore, Appellant did not contemporaneously object to the admission
    of the evidence based on its authenticity or as hearsay.            See Pa.R.A.P.
    302(a).
    In any event, turning to Appellant’s challenge to the authenticity of the
    Facebook message, Rule 901 requires parties to authenticate documents
    with “evidence sufficient to support a finding that the matter in question is
    what its proponent claims.” Pa.R.E. 901(a). Parties may use circumstantial
    evidence to authenticate documents. See Commonwealth v. Collins, 
    957 A.2d 237
    , 265 (Pa. 2008) (circumstantial evidence sufficient to authenticate
    letter,   where   letter   was   mailed    from   prison   where   defendant   was
    incarcerated and contained his prison identification number); In re F.P., 
    878 A.2d 91
    , 95 (Pa. Super. 2005) (circumstantial evidence, including use of
    defendant’s first name and references to particular events, sufficient to
    authenticate threatening instant messages).
    Here, the complainants’ testimony provided ample circumstantial
    evidence that authenticated the Facebook messages as coming from
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    Appellant.   Kathleen Foland testified that she accepted Appellant’s “friend”
    request over Facebook one day before he sent the threats, and that his
    picture was on his account.    The account was registered under the name
    “Randy Orton,” with whom Kathleen knew Appellant closely associated; she
    had heard Appellant refer to himself as “Randy Orton” on numerous
    occasions.   Appellant changed the picture on his account to one of Orton
    when he began sending the threats.         The posts contained pictures of
    Appellant, and he stated “this is Kevin” in one of the messages. Appellant
    had lived with Kathleen for a period of time and clearly identified both
    sisters’ family members by name, specifying those members he had lived
    with in Kathleen’s house.    The threats included the names of Appellant’s
    girlfriends, Kelly and Janet, as well as a nearby neighbor of Kathleen’s whom
    both Appellant and Kathleen knew. Appellant knew that Kathleen was
    pregnant and referred to a particular incident involving Kathleen’s brother
    and their mutual friend, Jermaine.        Regina received three Facebook
    messages from an account listed under the name “Randy Orton,” whom she
    knew to be a professional wrestler. Two messages included photographs of
    Appellant pointing a gun at the camera with messages threatening her and
    her daughter.     Regina recognized Appellant’s photograph immediately,
    having met him twice at Kathleen’s house in South Philadelphia, and Regina
    knew that Appellant had prior contact with Brittany.
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    Appellant contends that the Facebook messages were not authentic
    because somebody else created them, which he claims is easy to do on
    electronic media.    This argument is unpersuasive.         In F.P., this Court
    rejected a similar argument that electronic communications are “inherently
    unreliable because of their relative anonymity and the fact that while an
    electronic message can be traced to a particular computer, it can rarely be
    connected to a specific author with any certainty.” 
    Id. at 95
    . We reasoned:
    “[T]he same uncertainties exist with traditional written documents.          A
    signature can be forged; a letter can be typed on another's typewriter;
    distinct letterhead stationary can be copied or stolen.” 
    Id.
     In either case,
    the evidence is admissible once the proponent offers “evidence sufficient to
    support a finding that the matter in question is what its proponent claims,”
    as the Commonwealth did here. 
    Id. at 93
    . Any alleged uncertainties go to
    the weight of the evidence, not its admissibility.
    As to Appellant’s hearsay claim, it is well settled that:
    The focus [of] a probation hearing, even though prompted
    by a subsequent arrest, is whether the conduct of the
    probationer indicates that the probation has proven to be
    an effective vehicle to accomplish rehabilitation and a
    sufficient deterrent against future anti-social conduct. It
    must be emphasized that a probation revocation hearing is
    not a trial: “The court’s purpose is not to determine
    whether the probationer committed a crime . . . . It follows
    that probation revocation hearings are flexible, and
    material not admissible at trial may be considered by
    the court.[”] “The degree of proof necessary for probation
    revocation is less than that required to sustain a criminal
    conviction.” “Probation may be revoked on the basis of
    conduct which falls short of criminal conduct.”
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    Commonwealth v. Castro, 
    856 A.2d 178
    , 180 (Pa. Super. 2004) (citation
    omitted) (emphasis added).
    Under this liberal standard, the admission of the Facebook messages
    was proper.    This evidence was clearly relevant to the purpose of the
    revocation hearing—the determination of whether probation was “an
    effective vehicle to accomplish [Appellant’s] rehabilitation” and “[deter]
    future anti-social conduct.”     Id. at 160.      Furthermore, contrary to
    Appellant’s claim, the Facebook messages were not hearsay; they were
    admissible under an exception to the hearsay rule, Pa.R.E. 803(25), as
    statements “offered against an opposing party” that he made “in an
    individual . . . capacity.” See Commonwealth v. Weiss, 
    81 A.3d 767
    , 800
    (Pa. 2013) (defendant’s threat of another was voluntary extrajudicial
    statement that was admissible against him, “even though the threat
    contain[ed] no clear admission of guilt of the offense prosecuted”).
    For these reasons, Appellant’s challenges to the admission of the
    Facebook messages warrant no relief.
    In his second issue, Appellant contends that the evidence was
    insufficient to support the trial court’s conclusion that he violated his
    probation.    Appellant’s brief completely fails to develop this argument.
    Therefore, he has waived this issue.    See Commonwealth v. Freeman,
    
    128 A.3d 1231
    , 1249 (Pa. Super. 2015) (murder defendant failed to
    adequately brief his argument of unlawful jury tampering by prosecution,
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    and thus waived argument on appeal, where he made no effort whatsoever
    to discuss applicable law or link facts of his case to that law and failed to
    develop coherent legal argument in support of his claim).
    Even if Appellant had preserved this argument for appeal, it would not
    have entitled him to relief.     “[R]evocation of a probation sentence is a
    matter committed to the sound discretion of the trial court and that court’s
    decision will not be disturbed on appeal in the absence of an error of law or
    an abuse of discretion.”    Commonwealth v. MacGregor, 
    912 A.2d 315
    ,
    317 (Pa. Super. 2006) (citation omitted).
    The Commonwealth presented evidence that Appellant repeatedly
    threatened to kill Kathleen and Regina and their family members.              In
    addition to written threats, he sent pictures of himself pointing a gun at the
    viewer. He threatened to “blow [Kathleen’s] house up to the ground” and
    claimed to be spying on her from a nearby neighbor’s house. As a result,
    both sisters feared for their and their families’ safety. Kathleen testified that
    the threats caused her such stress that she gave birth to her son
    prematurely.    Clearly, being on probation had not sufficiently deterred
    Appellant from engaging in anti-social conduct.       See Commonwealth v.
    Infante, 
    888 A.2d 783
    , 791 (Pa. 2005) (“A probation violation is established
    whenever it is shown that the conduct of the probationer indicates the
    probation has proven to have been an ineffective vehicle to accomplish
    rehabilitation and not sufficient to deter against future anti-social conduct”
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    (citation      omitted)).      Moreover,    the     Commonwealth   established—and
    Appellant himself admitted—that he violated his probation by traveling to
    New Hampshire without permission and ingesting marijuana.                Thus, the
    court’s decision to revoke probation was well within its discretion. See, e.g.,
    Commonwealth v. Malovich, 
    903 A.2d 1247
    , 1253-54 (Pa. Super. 2006)
    (where appellant displayed an “attitude problem” toward probation, was “not
    willing to change,” and had not been “putting anything into” court-imposed
    rehabilitation efforts, court properly determined that probation was no
    longer appropriate and imposed period of incarceration).
    In his final argument, Appellant claims that the trial court erred in
    holding his revocation hearing prior to trial on his terroristic threats and
    weapons charges.            Appellant waived this argument by failing to raise it
    during his revocation hearing.          See Commonwealth v. King, 
    430 A.2d 990
    , 991 (Pa. Super. 1981) (“objections not raised during a counselled
    revocation proceeding will not be considered on appeal”) (citations omitted).
    Even if Appellant preserved this issue for appeal, it is devoid of
    substance, because it is clear that “a probation violation hearing may be
    conducted prior to a trial for the criminal charges based on the same
    activities.”     Commonwealth v. Brown, 
    469 A.2d 1371
    , 1375 (Pa. 1983)
    (citing Kates, 305 A.2d at 706).5
    5
    The Commonwealth may elect to defer the revocation hearing until after
    trial. See Brown, 469 A.2d at 1376. If, however, the defendant is
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    [I]t is quite possible for a person to be acquitted of
    charges brought against him and yet have his probation
    revoked based upon the existence of those charges being
    brought against him. However . . . a bare assertion of an
    arrest, without a conviction, is lacking in probative value.
    Thus, before a court may revoke probation, factual
    evidence, in addition to the fact of the arrest, must be
    presented.
    Commonwealth v. Fleeger, 
    437 A.2d 60
    , 61 (Pa. Super. 1981) (citation
    and   quotation   marks   omitted).       Here,   as   discussed   above,   the
    Commonwealth fulfilled its burden during Appellant’s revocation hearing by
    presenting ample evidence “in addition to the fact of arrest.” 
    Id.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 8/15/2017
    acquitted at trial, the Commonwealth is barred from seeking revocation on
    the basis of the new charges. Id. at 1377-78. Obviously, this scenario did
    not occur here, because the Commonwealth opted for a revocation hearing
    prior to trial.
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