Com. v. Danzey, S. , 210 A.3d 333 ( 2019 )

J-S72027-18
2019 Pa. Super. 152
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAUNTELL BREE DANZEY :
:
Appellant : No. 477 MDA 2018
Appeal from the Judgment of Sentence February 27, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0005515-2016
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
OPINION BY SHOGAN, J.: FILED MAY 9, 2019
Appellant, Shauntell Bree Danzey, appeals from the judgment of
sentence entered on February 27, 2018, in the Court of Common Pleas of
Dauphin County. We affirm.
The trial court summarized the factual history of this case as follows:
[T]he instant case arose out of a love triangle involving
[Appellant], her former boyfriend (Anthony Bowers), and
[(“Victim”)], who began dating Bowers sometime after [Appellant]
and Bowers had ended their relationship. At some point after
[Victim] began dating Bowers, various social media accounts,
which bore profile pictures of [Appellant] or other details that
suggested [Appellant’s] account ownership and control, began
publishing derogatory, sometimes threatening posts referencing
and occasionally “tagging” [Victim]. [Victim] showed these posts
to her sister, [], whom the Commonwealth used at trial to
introduce 16 photographic exhibits of the harassing posts that
[Victim], prior to her death,[1] began collecting after a no-contact
order was put into place between [Victim] and [Appellant].
Trial Court Opinion, 5/8/18, at 1-2 (internal citations omitted).
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1 Victim died in an automobile accident on December 26, 2016.
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At trial, Officer Matthew Gallup testified that he responded to a call
placed by Victim to the Harrisburg Police Department on September 20, 2016.
N.T., 8/15/17, at 131. At the time of their meeting, Victim told Officer Gallup
that she was being harassed by Appellant through various social media
accounts, despite the fact that a no-contact order was in place between Victim
and Appellant. Id. at 132-133. During that meeting, Victim showed
Officer Gallup hard copies of the relevant social media posts, as well as posts
still viewable on Victim’s phone. Id. As a result, Appellant was charged by
criminal information filed September 20, 2016, with one count of stalking 2 and
one count of terroristic threats. On November 17, 2016, the Commonwealth
filed an amended information, removing the terroristic threat charge and
adding a harassment3 charge.
Prior to commencement of trial, Appellant filed a motion in limine on
August 14, 2017, seeking to exclude the introduction of sixteen electronic
communications, including Facebook and Instagram posts, that were of a
vulgar, derogatory, and sometimes threatening nature, directed at Victim.
The motion in limine was denied by order of court entered August 14, 2017.
The matter proceeded to a two-day jury trial on August 14-15, 2017. At the
conclusion of the trial, Appellant was convicted of both charges. Appellant
was sentenced on February 27, 2018, to an aggregate term of eleven and
____________________________________________
2 18 Pa.C.S. § 2709.1(A)(2).
3 18 Pa.C.S. § 2709(A)(4).
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one-half months to twenty-three months of incarceration, followed by two
years of probation. Appellant filed a notice of appeal on March 15, 2018.
Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
I. In a prosecution for harassment and stalking, did not the
trial court err in admitting various social media
communications and related testimony when the
Commonwealth failed to authenticate such evidence under
Pa.R.E. 901 by establishing [Appellant’s] authorship of such
communications?
II. In a prosecution for harassment and stalking, did not the
trial court err in admitting an irrelevant social media
communication (Exhibit 16) that was posted after the
purported [V]ictim died?
Appellant’s Brief at 4.
In her first issue, Appellant argues that the trial court erred in admitting
the social media communications and related testimony because the
Commonwealth failed to authenticate this evidence pursuant to Pa.R.E. 901
by establishing Appellant’s authorship of these communications. Appellant’s
Brief at 16. Appellant asserts that there is no direct evidence that Appellant
authored the posts. Id. at 24. Appellant further maintains that her authorship
cannot be established circumstantially because there are no context clues that
prove her to be the author. Id. Appellant also contends that to the extent
the Commonwealth admitted the social media communications to prove the
truth of the matters asserted therein, the communications were inadmissible
hearsay. Id. at 25.
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Our standard of review of a denial of a motion in limine is as follows:
When ruling on a trial court’s decision to grant or deny a motion
in limine, we apply an evidentiary abuse of discretion standard of
review. The admission of evidence is committed to the sound
discretion of the trial court, and a trial court’s ruling regarding the
admission of evidence will not be disturbed on appeal unless that
ruling reflects manifest unreasonableness, or partiality, prejudice,
bias, or ill-will, or such lack of support to be clearly erroneous.
Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010) (citation
omitted).
Pursuant to Pennsylvania Rule of Evidence 901, authentication is
required prior to admission of evidence. The proponent of the evidence must
introduce sufficient evidence that the matter is what it purports to be. Pa.R.E.
901(a). Testimony of a witness with personal knowledge that a matter is what
it is claimed to be can be sufficient. Pa.R.E. 901(b)(1). Evidence that cannot
be authenticated by a knowledgeable person, pursuant to subsection (b)(1),
may be authenticated by other parts of subsection (b), including
circumstantial evidence pursuant to subsection (b)(4). Pa.R.E. 901(b)(4).
Under Rule 901(b)(4), evidence may be authenticated by “Distinctive
Characteristics and the Like. The appearance, contents, substance, internal
patterns, or other distinctive characteristics of the item, taken together with
all the circumstances.” Pa.R.E. 901(b)(4).
Pennsylvania appellate courts considered the authentication of
computerized instant messages and cell phone text messages in In the
Interest of F.P., a Minor, 878 A.2d 91, 96 (Pa. Super. 2005) (addressing
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computerized instant messages), and Commonwealth v. Koch, 39 A.3d 996,
1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705
(Pa. 2014) (addressing cell phone text messages). In Interest of F.P., this
Court rejected the argument that electronic communications, such as instant
messages or e-mails, are inherently unreliable due to their relative anonymity
and the difficulty connecting them to their author, noting that the same
uncertainties exist with written documents: “A signature can be forged; a
letter can be typed on another’s typewriter; distinct letterhead stationary can
be copied or stolen.” Interest of F.P., 878 A.2d at 95. The Interest of F.P.
Court also rejected the notion that unique rules for admissibility of electronic
communications should be created, stating “We believe that e-mail messages
and similar forms of electronic communication can be properly authenticated
within the existing framework of Pa.R.E. 901 and Pennsylvania case law[.]”
Id. Additionally, the Interest of F.P. Court concluded that the admissibility
of an electronic communication is to be evaluated on a case-by-case basis, as
any other document, to determine whether there has been an adequate
foundational showing of its relevance and authenticity. Id. at 96.
In considering the authentication of text messages, the Koch Court
concluded that “[i]mplicit in these decisions is the realization that e-mails and
text messages are documents and subject to the same requirements for
authenticity as non-electronic documents generally.” Koch, 39 A.3d at 1004
(citations omitted). The Koch Court additionally observed that “electronic
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writings typically show their source, so they can be authenticated by contents
in the same way that a communication by postal mail can be authenticated.”
Id. at 1003. This Court also noted the following challenges in authenticating
electronic communications:
[T]he difficulty that frequently arises in e-mail and text message
cases is establishing authorship. Often more than one person
uses an e-mail address and accounts can be accessed without
permission. In the majority of courts to have considered the
question, the mere fact that an e-mail bears a particular e-mail
address is inadequate to authenticate the identity of the author;
typically, courts demand additional evidence.
Id. at 1004. Accordingly, the Koch Court ruled, “[A]uthentication of
electronic communications, like documents, requires more than mere
confirmation that the number or address belonged to a particular person.
Circumstantial evidence, which tends to corroborate the identity of the sender,
is required.” Id. at 1005. In Koch, the Court concluded that testimony
presented by the Commonwealth was insufficient to authenticate the text
messages in question, noting that there was no testimony from any person
who had sent or received the text messages, nor any contextual clues in the
drug-related text messages that tended to reveal the identity of the sender.
Id. at 1005. On that basis, the Koch Court concluded that the admission of
the text messages constituted an abuse of discretion. Id.
In Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018) this
Court had the opportunity to address authentication of communications made
on Facebook and other social media platforms. In addressing these
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communications, this Court acknowledged the holdings in Interest of F.P.
and Koch, and stated the following in determining the authentication of these
postings:
In our view, the same authorship concerns, as expressed by
the Koch Court in relation to e-mails and instant messages, exist
in reference to Facebook and other social media platforms, that
can be accessed from any computer or smart phone with the
appropriate user identification and password. See Koch, 39 A.3d
at 1004; see also In re F.P., 878 A.2d at 95 (stating that
“anybody with the right password can gain access to another’s
email account and send a message ostensibly from that person.”).
Social media evidence presents additional challenges because of
the great ease with which a social media account may be falsified,
or a legitimate account may be accessed by an imposter.
Nevertheless, social media records and communications can be
properly authenticated within the existing framework of Pa.R.E.
901 and Pennsylvania case law, similar to the manner in which
text messages and instant messages can be authenticated.
Initially, authentication social media evidence is to be evaluated
on a case-by-case basis to determine whether or not there has
been an adequate foundational showing of its relevance and
authenticity. See In re F.P., 878 A.2d at 96. Additionally, the
proponent of social media evidence must present direct or
circumstantial evidence that tends to corroborate the identity of
the author of the communication in question, such as testimony
from the person who sent or received the communication, or
contextual clues in the communication tending to reveal the
identity of the sender. See Koch, 39 A.3d at 1005. Other courts
examining the authentication of social media records have ruled
that the mere fact that an electronic communication, on its face,
purports to originate from a certain person’s social networking
account is generally insufficient, standing alone, to authenticate
that person as the author of the communication.
Mangel, 181 A.3d at 1162 (some internal citations omitted).
In addressing the claims before it, the Mangel Court concluded that the
trial court did not abuse its discretion in denying the Commonwealth’s motion
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in limine to introduce into evidence various Facebook posts, and in support of
its conclusion, stated:
[T]the Commonwealth presented no evidence, direct or
circumstantial, tending to substantiate that Mangel created the
Facebook account in question, authored the chat messages, or
posted the photograph of bloody hands. The mere fact that the
Facebook account in question bore Mangel’s name, hometown and
high school was insufficient to authenticate the online and mobile
device chat messages as having been authored by Mangel.
Moreover, there were no contextual clues in the chat messages
that identified Mangel as the sender of the messages.
Id. at 1164.
We find the holdings in Interest of F.P., Koch, and Mangel to be
instructive in this case. Here, the Commonwealth presented evidence that
Appellant owned the relevant social media accounts. As the trial court
explained, the posts, Exhibits 1-16, reflected origination from social media
accounts belonging to Appellant. Trial Court Opinion, 5/8/18, at 1-8, 11-12.
The posts were made from the following accounts: “Bre TheBoss Holland,”
which account also displayed a cover photo of Appellant; “Bre Moved on
Holland”; “Bre Holland”; “shaunbre76,” which included a profile picture of
Appellant; “Quin Loveislove Robbins”; and “BriiBre Holland,” which displayed
a profile picture of Appellant. Commonwealth Exhibits 1-16. The trial court
further explained:
At trial, the Commonwealth also presented the testimony of
Matthew Gallup, a patrol officer with the Harrisburg Police
Department. On September 20, 2016, he met with [Victim] who
indicated she was being harassed by [Appellant] through various
social media accounts, despite the fact that a no-contact order
was in place between the parties. During that meeting,
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Officer Gallup was shown hard copies of the relevant social media
posts, as well as posts still viewable on [Victim’s] phone.
Officer Gallup testified to several facts suggesting
[Appellant’s] ownership of the relevant social media accounts. He
testified that the middle name of [Appellant], which he included
on the Criminal Complaint, is Bree. Additionally, [Appellant’s]
date of birth, as also indicated on the Criminal Complaint, is
August 22, 1976. Officer Gallup further testified that the profile
picture displayed on Commonwealth Exhibit 10 was that of
[Appellant], whom he identified in the courtroom.
Trial Court Opinion, 5/8/18, at 8 (internal citations omitted). Thus, there was
sufficient evidence to establish that Appellant owned the social media
accounts.
Furthermore, there was corroborating evidence that Appellant was the
author of the posts. Each of the posts contained contextual clues that linked
Appellant to Victim, and referenced their relationship. As the trial court
stated:
In the instant case, the Commonwealth witnesses provided
ample circumstantial evidence to meet the threshold for admission
of the social media posts against [Appellant]. All of the harassing
and threatening social media posts introduced by the
Commonwealth could, in one or several ways, be linked to
[Appellant]. Some accounts displayed a photo of [Appellant] as a
profile picture. Others used a variation of her name and/or
birthdate. The timing of the posts offered further circumstantial
evidence. According to the testimony of [Victim’s] sister, all of
the posts were made after [Appellant] learned [Victim] had begun
dating [Appellant’s] ex-boyfriend.
Most of the posts also contained contextual clues supporting
the identity of [Appellant] as their author. First, the posts, across
all the variously named accounts, expressed consistent themes in
a consistently vulgar voice: that [Victim] was “a whore” who
pursued the paramours of other women; that [Victim] didn’t [use]
condoms and might have AIDS; that [Victim] should get tested to
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know her (presumably) HIV status. Second, the posts contained
references to circumstances specific to the relationship between
[Appellant] and [Victim]. The posts’ references to “cuz” (cousin)
suggested [Appellant’s] authorship because her cousin, Sheree,
had been a longtime friend of [Victim]. References to the
boyfriend’s “playing a game” and “lost files” coincided with
[Appellant’s] attempt to gain access to [Victim’s] workplace at
PHEAA, where [Victim] theoretically had potential control over the
boyfriend’s student loans. Third, some of the posts contained
references to “cop caller”, and there was, at the time of the posts,
a no-contact order in place between [Appellant] and [Victim].
We believe these facts, as introduced by the
Commonwealth, established an adequate foundation to
authenticate the challenged exhibits and justify their admission
into evidence against [Appellant].
Trial Court Opinion, 5/8/18, at 11-12. The trial court also stated:
Moreover, while the Commonwealth had no witness who
testified they observed [Appellant] creating the harassing social
media posts, the Commonwealth’s case, as noted above, included
details linking [Appellant] not just to the accounts, but also to the
posts themselves. The posts contained vulgar rants consistent
with a jealous ex[-]girlfriend who had just learned her friend had
begun dating her ex. Further, the posts referenced details, like
[Appellant’s] cousin and [Victim’s] job, specific to the relationship
between the two women. The foundation presented was sufficient
to justify the admission of the evidence for the consideration of
the jury, who ultimately found that the posts not only came from
accounts linked to [Appellant] but were also authored, beyond a
reasonable doubt, by her as well.
Trial Court Opinion, 5/8/18, at 13.
We agree with the trial court’s conclusion. Here, the Commonwealth
presented evidence substantiating that Appellant owned the Facebook and
Instagram accounts in question and circumstantial evidence tending to
corroborate that Appellant was the author of these communications. Mangel,
181 A.3d at 1162. The contextual clues in the posts, taken together with the
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testimony provided by Victim’s sister, support the conclusion that Appellant
was the author of the messages. N.T., 8/14/17, at 37-74; N.T., 8/15/17, at
84-130.4 Accordingly, the trial court did not abuse its discretion in denying
Appellant’s motion in limine to exclude this evidence from trial.
Moreover, to the extent that Appellant argues these exhibits should not
have been admitted because they constituted hearsay and did not meet one
of the hearsay exceptions, we conclude that the claim lacks merit. As the trial
court aptly observed:
Hearsay is a statement, other than one made by the
declarant while testifying at trial or hearing, offered in evidence to
prove the truth of the matter asserted. Pa.R.E. 801(c). In the
instant case, the Commonwealth did not offer the identified social
media posts to prove the matters asserted therein. More
specifically, the Commonwealth did not offer the posts to prove
that [Victim] was a prostitute, refused to [use] condoms, and
couldn’t carry a baby to term. Rather , the Commonwealth offered
the posts to prove the elements of Harassment (that [Appellant],
with intent to harass, annoy or alarm [Victim], communicated to
and about her lewd, lascivious, threatening or obscene words,
language, drawings or caricatures) and Stalking (that [Appellant]
engaged in a course of conduct or repeatedly communicated to
[Victim] under circumstances which demonstrated or
communicated either an intent to place such other person in
reasonable fear of bodily injury or to cause substantial emotional
distress to such other person.) See 18 Pa. C.S.A. §2709(A)(4)
and 18 Pa.C.S.A. §2709.1(A)(2).
Trial Court Opinion, 5/8/18, at 14 (emphasis in original).
____________________________________________
4 Victim’s sister also testified that she reported the account bearing the name
“Quin Loveislove Robbins” to Facebook due to the inappropriate posts. N.T.,
8/15/17, at 89-90. As a result, she was aware of the owner of the account.
Id.
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The comment to Pa.R.E. 801(c) is instructive:
A statement is hearsay only if it is offered to prove the truth of
the matter asserted in the statement. There are many situations
in which evidence of a statement is offered for a purpose other
than to prove the truth of the matter asserted.
Sometimes a statement has direct legal significance, whether or
not it is true. For example, one or more statements may
constitute an offer, an acceptance, a promise, a guarantee, a
notice, a representation, a misrepresentation, defamation,
perjury, compliance with a contractual or statutory obligation, etc.
More often, a statement, whether or not it is true, constitutes
circumstantial evidence from which the trier of fact may infer,
alone or in combination with other evidence, the existence or non-
existence of a fact in issue. For example, a declarant’s statement
may imply his or her particular state of mind, or it may imply that
a particular state of mind ensued in the recipient.
Pa.R.E. 801(c), cmt.
As the trial court noted, the posts were not introduced for purposes of
proving the truth of the matter asserted therein. Rather, introduction of the
posts established Appellant’s state of mind, and related directly to
consideration of the charged offenses of stalking and harassment. Thus, the
posts in question did not constitute hearsay, and the trial court did not abuse
its discretion in admitting them.
In her second issue, Appellant argues that the trial court erred in
admitting Commonwealth Exhibit 16 because it is irrelevant. Appellant’s Brief
at 26. Appellant contends that the communication reflected in Exhibit 16 was
sent after Victim’s death. Id. at 26. Appellant argues that the charges filed
against her, stalking and harassment, were against Victim’s person. Id. at
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27. Accordingly, Appellant maintains, a communication sent after Victim’s
death cannot constitute the actus reus of either of the charges. Id. Appellant
further argues that even if the communication was relevant, it was outweighed
by the unfair prejudice stemming from its introduction. Id. Appellant asserts
that this evidence was unfairly prejudicial because “its primary import was to
paint [Appellant] as the type of person who would celebrate the untimely
death of another person.” Id. at 27-28.
The post at issue, Commonwealth Exhibit 16, memorialized a Facebook
post by “Quin Loveislove Robbins” reflecting the following: “DING DONG THE
BITCH IS DEAD (smiley face emojis) STUPID HOE (emojis).” Commonwealth’s
Exhibit 16; N.T., 8/15/17, at 116. Victim’s sister testified that she saw this
post sometime after her sister passed away on December 16, 2016. N.T.,
8/15/17, at 113.
The offense of stalking is defined in relevant part as follows: “A person
commits the crime of stalking when the person . . . engages in a course of
conduct or repeatedly communicates to another person under circumstances
which demonstrate or communicate either an intent to place such other person
in reasonable fear of bodily injury or to cause substantial emotional distress
to such other person.” 18 Pa.C.S. § 2709.1(a)(2). A person commits the
crime of harassment “when, with intent to harass, annoy or alarm another,
the person . . . communicates to or about such other person any lewd,
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lascivious, threatening or obscene words, language, drawings or caricatures.”
18 Pa.C.S. § 2709(a)(4).
In determining the admissibility of evidence, the trial court
must decide whether the evidence is relevant and, if so, whether
its probative value outweighs its prejudicial effect. Evidence is
relevant if it logically tends to establish a material fact in the case,
tends to make a fact at issue more or less probable, or tends to
support a reasonable inference or proposition regarding a material
fact. Relevant evidence may nevertheless be excluded “if its
probative value is outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Because all relevant
Commonwealth evidence is meant to prejudice a defendant,
exclusion is limited to evidence so prejudicial that it would
inflame the jury to make a decision based upon
something other than the legal propositions relevant
to the case. As this Court has noted, a trial court is
not required to sanitize the trial to eliminate all
unpleasant facts from the jury’s consideration where
those facts form part of the history and natural
development of the events and offenses with which a
defendant is charged.
Commonwealth v. Serge, 837 A.2d 1255, 1260-1261 (Pa. Super. 2003)
(internal citations omitted).
In addressing this issue, the trial court provided the following analysis:
We agree a deceased person can no longer be harassed or
stalked. However, we admitted Exhibit 16 for another purpose
that was relevant to the Commonwealth’s case: demonstration of
[Appellant’s] intent and mindset. As articulated previously in this
Opinion, both Harassment and Stalking have an intent element.
The Facebook post depicted by Exhibit 16 suggested strongly that
the preceding social media posts made by [Appellant] as part of a
continuing course of conduct prior to [Victim’s] death were not
made as good-natured jokes or had some legitimate purpose.
Rather, they were made with the requisite criminal intent.
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With regard to [Appellant’s] claim that Exhibit 16, even if
relevant, was more prejudicial than probative, we also disagree.
* * *
[T]he more appropriate legal inquiry is the question of whether
[Appellant] was unfairly prejudiced. We do not believe she was.
In the context of the other posts admitted at trial, Exhibit
16 was not singularly outrageous. Its celebration of [Victim’s]
death was consistent with the tenor of other posts suggesting
violence and death.
Trial Court Opinion, 5/8/18, at 15-16 (emphasis in original).
As outlined above, the offenses of stalking and harassment both include
elements of intent by the actor to cause the other person some level of
distress. Introduction of this exhibit is relevant to establish the ill-will
Appellant had for Victim and supports the conclusion that she engaged in the
offenses of stalking and harassment of Victim. Thus, we agree the exhibit was
relevant.
Moreover, the probative value was not outweighed by unfair prejudice.
The post reflects Appellant’s attitude toward Victim; the fact that it reflected
a negative attitude or an opinion reflecting unflatteringly on Appellant does
not make it unfairly prejudicial. This evidence forms part of the history and
natural development of the events and offenses with which Appellant was
charged. Serge, 837 A.2d at 1260-1261. Accordingly, the trial court was not
required to sanitize the record by keeping it from the jury, id., and did not
abuse its discretion in denying Appellant’s motion in limine to exclude this
evidence. Appellant is entitled to no relief on this claim.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 05/09/19
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