Com. v. Black, G. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GARRET RICHARD BLACK :
:
Appellant : No. 627 WDA 2022
Appeal from the Judgment of Sentence Entered May 11, 2022
In the Court of Common Pleas of Erie County Criminal
Division at No(s): CP-25-MD-0000225-2022
BEFORE: BENDER, P.J.E., KUNSELMAN, J., and COLINS, J.
MEMORANDUM BY COLINS, J.: FILED: May 16, 2023
Garret Richard Black appeals from the judgment of sentence imposed
following a non-jury trial in which he was found guilty of indirect criminal
contempt1 (“ICC”) stemming from him having violated a Protection From
Abuse (“PFA”) Act order.2 For this offense, Black was sentenced to six months
of probation (along with attendant conditions) and a $300 fine. On appeal,
Black challenges whether the evidence was sufficient to convict him of ICC.
We affirm.
As set forth by the lower court:
Trudy Schmidt obtained a PFA [o]rder against Garret Black
on December 16, 2021. The [o]rder stated that Black was to have
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 Retired Senior Judge assigned to the Superior Court.
1 See 23 Pa.C.S. § 6114.
2 See 23 Pa.C.S. § 6101 et seq.
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no contact with Ms. Schmidt either directly or through third
parties. [Black], by posting on Facebook Messenger, asked Ms.
Schmidt’s friend Kaylie Fitch to contact Ms. Schmidt with a
message. Kaylie contacted Trudy by a Facebook posting on
February 7, 2022. Based upon that contact, an [ICC] [p]etition
was filed by Ms. Schmidt against … Black. A hearing on the
[p]etition was held May 11, 2022. After hearing testimony from
Trudy Schmidt and Kaylie Fitch, [Black] was found guilty of [ICC]
and [thereafter] sentenced[.] …
Trudy Schmidt testified that she usually goes by the
nickname [“]Emet[”]. Schmidt used to date … Black, but obtained
a PFA [order] against him on December 16, 2021. The [o]rder
specified no contact by Black with Ms. Schmidt either directly or
through third parties. Ms. Schmidt was contacted on behalf of
Black by her friend Kaylie Fitch on February 7, 2022.
Kaylie Fitch is a friend of Trudy Schmidt. Fitch knew Black
because he was dating Trudy, but had also met him previous to
his relationship with Trudy. Fitch identified Black in the courtroom.
Kaylie was aware that Schmidt had a PFA [order] against [Black].
[Black] contacted Ms. Fitch by Facebook Messenger posting on
February 7, 2022. [Black] used the last name “Diabolus” in that
posting to Fitch. Fitch knew it was him because she had “friended”
with Black on a previous Facebook account Black had, and had
[received] messages on that account from Black. [Black] posted
on the earlier account that he was going to create a new profile
(account) and used the same last name[:] “Diabolus”. In fact,
Black also used the same first name on the new account that he
had used in the previous account – “Orabus”. It was from the new
account that Fitch received what she characterized as
“threatening” messages for Trudy. [Black] used Schmidt’s
nickname of “Emet” in the message, and Kaylie knew Black was
obviously referring to Trudy. Trudy Schmidt was the only woman
Black dated with whom Kaylie had a relationship. The messages
in question were read into the record:
… So the first message, it states that, hey, since my friend
cannot contact your friend I have a request. One, tell her
that Kevin’s a retard and said what he said drunk and got
his butt handed to him by G. Two, let her know G says he’s
sorry for everything. Three, if Emet does not drop the PFA
G will be suing her in court for perjury and defamation of
Character. The first one’s a felony and relates to Emet
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having no actual proof of G claiming to shoot her because
he never did. If Emet would like to avoid this and any future
problems, drop the PFA. If you do not respond, the motion
to sue will continue and they’ll see Emet in court. Thanks. G
just wants to have his guns back and cannot believe Emet
snitched and stabbed him in the back. He doesn’t care to
see her again if that’s what she wants, but his gun rights
will not be taken so easily and he will win. The choice is hers.
Thanks you and good night.
The “G” who was referred to in the message was Garret
Black. Kaylie Fitch absolutely believed the account from which she
got the message was Black’s new account. On cross examination,
Fitch was asked what made her think the message was from Black
and not someone else:
The entire message, like, it’s clearly from him even though
it’s in the third person. I’m sorry, I don’t know how to
vocalize that other that it’s very detailed and knows intimate
details that nobody else would know.
When confronted that she only believed the message was
from Black because of the conflict her friends were going through,
Kaylie responded:
There’s other screenshots from his Garret Black account
saying he’s making a new account and to contact him there.
And other messages that, you know, he was looking for
Trudy and he was asking for $50 [if] anyone could tell him
the location. And there’s just similarities between his new
account where he was posting and his old account. Like the
same posts using the same--[.]
Ms. Fitch admitted that she didn’t know if someone else was
using [Black’s] Facebook Messenger when the message in
question was sent.
Trial Court Opinion, 8/8/22, at 1-3 (unpaginated) (record citations omitted).
Following an adjudication of guilt and subsequent sentencing, Black filed
a timely notice of appeal. Thereafter, the relevant parties complied with their
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respective obligations under Pennsylvania Rule of Appellate Procedure 1925.
Accordingly, this matter is ripe for review.
On appeal, Black presents one issue:
1. Was the evidence sufficient to find him guilty of ICC when the
evidence/testimony presented were based on hearsay?3
Appellant’s Brief, at 3.
Broadly, we start from the premise that contempt convictions are
reviewed for an abuse of discretion. See Commonwealth v. Haigh, 874 A.2d
1174, 1177 (Pa. Super. 2005). In giving latitude to the lower court’s
discretion, our task is to ascertain whether the facts support that court’s
ultimate determination. See id., at 1176-77.
As with any claim that contests whether there was sufficient evidence
to sustain a conviction, we employ a well-settled series of precepts:
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find 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 the fact-
finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
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3 We note that despite referencing the word “hearsay,” Black’s argument
appears limited to whether the Commonwealth failed to demonstrate that he
was the author of the Facebook messages that formed the basis for his ICC
conviction. In fact, hearsay is only referenced twice (without any further
explanation) in the argument section of Black’s brief. To the extent Black
challenges the admission of those messages as hearsay, the lower court found
such writings to be opposing party statements under Pa.R.E. 803(25)(A) and
therefore excepted by the rule against hearsay. See Trial Court Opinion,
8/8/22, at 6 (unpaginated).
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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. Finally, 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.
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super. 2001)
(citations and quotation marks omitted).
To establish ICC, the Commonwealth must prove: “1) the order was
sufficiently definite, clear, and specific to the contemnor as to leave no doubt
of the conduct prohibited; 2) the contemnor had notice of the order; 3) the
act constituting the violation must have been volitional; and 4) the contemnor
must have acted with wrongful intent.” Commonwealth v. Walsh, 36 A.3d
613, 619 (Pa. Super. 2012) (citation and quotation omitted).
Here, Black does not explicitly contest whether the Commonwealth
failed to meet any of those four requirements. Instead, Black suggests that,
given the potentially anonymous nature of social media, the Commonwealth
presented ‘hearsay’ evidence and, consequently, did not prove that Black had
been the author of the various messages sent to Kaylie Fitch intended for
Trudy Schmidt. More specifically, Black argues that “the Commonwealth failed
to present evidence that properly authenticated [him] as the sender of the
messages from the Facebook [a]ccount.” Appellant’s Brief, at 6. Black avers
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that the Commonwealth could not conclusively establish who authored and
sent the messages much less who “owned” the account sending those
messages. Instead, “the record more established [that] the text messages
were sent from a third party, not affiliated with [Black].” Id., at 7. Accordingly,
the Commonwealth failed to prove he committed the crime of which he was
convicted.
Effectively, Black asks this Court to review his sufficiency argument after
omitting these disputed messages from the record. However, with sufficiency
claims, we “do not review a diminished record. Rather, the law is clear that
we are required to consider all evidence that was actually received, without
consideration as to the admissibility of that evidence or whether the trial
court’s evidentiary rulings are correct.” Commonwealth v. Arias, 286 A.3d
341, 350 (Pa. Super. 2022) (citations omitted).4
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4 Although Black alludes to authenticity concerns associated with the lower
court’s admission of the various Facebook messages, he fails to raise or
develop a specific challenge to the admissibility of those messages.
Accordingly, this issue has been waived. See Commonwealth v. Antidormi,
84 A.3d 736, 754 (Pa. Super. 2014) (citation omitted).
Assuming, arguendo, that Black properly raised such a claim, the court found
that the Commonwealth properly authenticated ownership of the at-issue
Facebook account and messages under Pa.R.E. 901(b)(11). In particular,
Kaylie Fitch detailed that she knew Black, had been friends with
him on his earlier account when he used the last name “Diabolus”
as well as the first name “Orabus” – the name on the message
she received [on] February 7, 2022. She testified [that] Black
wrote on the previous account that he was creating a new profile
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(or account). The message refers to Emet which was Trudy
Schmidt’s nickname. The message asks for the PFA [order]
dropped and apologizes about everything. Fitch stated the only
person she knew who Black dated was Trudy. Even though the
message [was] allegedly written by a third party, Kaylie knew it
was Black due to the message being so detailed and containing
intimate details no one else but [Black] would know.
Trial Court Opinion, 8/8/22, at 5 (unpaginated).
In Commonwealth v. Mangel, we found no abuse of discretion when the
lower court determined that the Commonwealth “did not introduce …
testimony from any other knowledgeable party to substantiate that the
Facebook page (and, by association, the posts and messages contained
therein) belonged to [the appellee].” 181 A.3d 1154, 1163 (Pa. Super. 2018).
Here, while circumstantial in nature, Kaylie Fitch’s testimony illuminated: (1)
the unique and identical naming convention of a previous Facebook profile
belonging to Black and the one currently in question, i.e. “Orabus Diabolus”;
(2) the consistent references in the messages to “Emet” as a nickname for
Trudy Schmidt; (3) that the messages noted particulars about the nature of
the PFA order; and (4) an apology coming from Black. Notwithstanding that
the messages were written from a third-party perspective, the lower court
certainly did not abuse its discretion in admitting this evidence, as Kaylie
Fitch’s corroborative testimony highlighted distinctive characteristics known
only to Black and, too, sufficiently supported the notion that he was the author
of the messages. See Commonwealth v. Jackson, 283 A.3d 814, 819 (Pa.
Super. 2022) (presenting evidence of defendant’s known aliases in social
media account usernames showed authorship of messages);
Commonwealth v. Orr, 255 A.3d 589, 601 (Pa. Super. 2021) (text messages
referencing an ongoing legal dispute between defendant and victim assisted
in authentication of those messages); Commonwealth v. Talley, 236 A.3d
42, 60 (Pa. Super. 2020) (text messages containing matters that were known
only by defendant and victim provided circumstantial evidence as to the
authenticity of those messages), affirmed on other grounds, 265 A.3d 485(Pa. 2021). But see Mangel, 181 A.3d at 1164 (“[T]here were no contextual
clues in the chat messages that identified [the appellee] as the sender of the
messages.”).
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Given our wide deference to the Commonwealth as verdict winner, our
review of the record compels a conclusion that Black’s sufficiency argument
fails. We emphasize that the Commonwealth may prove every element of ICC
circumstantially and, too, that it was for the lower court, sitting as fact-finder,
to adjudicate witness credibility and the weight of the evidence produced.
Accordingly, as illuminated in the previous footnote, albeit in the context of
evidentiary admissibility, there was clearly enough circumstantial evidence
tying Black to authorship of the Facebook messages, and he is due no relief.
Therefore, we find no merit to Black’s sole contention in this appeal and
affirm his judgment of sentence.
Judgment of sentence affirmed.
P.J.E. Bender joins this memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/16/2023
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