Com. v. Schafkopf, J. ( 2021 )

J-A18010-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JARED ADAM SCHAFKOPF :
:
Appellant : No. 108 WDA 2021
Appeal from the Judgment of Sentence Entered October 9, 2020
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0000559-2019
BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED: DECEMBER 17, 2021
Appellant, Jared Adam Schafkopf, appeals from his judgment of
sentence entered on October 9, 2020, as made final by the trial court’s denial
of his post-sentence motion. We affirm.
The trial court summarized the facts of this case as follows:
The events leading to [Appellant’s] conviction occurred on
February 27, 2019, when the Indiana University of Pennsylvania
(IUP) Police Department was contacted about a student who was
[videotaping] his professor, Dr. Rachell Bouchat, at Stright Hall, a
building on the IUP campus. According to Dr. Bouchat, [Appellant]
had contacted her via email in December 2018, asking to see his
final exam. Dr. Bouchat invited [Appellant] to stop at her
on[-]campus office the following week or during office hours when
the next semester started. [Appellant] did not elect to visit Dr.
Bouchat until February 27, 2019, and during their meeting,
[Appellant] indicated his belief that he had been graded unfairly
due to political differences between himself and Dr. Bouchat. At
some point during the meeting, [Appellant] informed Dr. Bouchat
that he was recording her, to which she responded that she did
not give him permission to do that and told him to leave her office.
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Dr. Bouchat testified that she was so shaken by the confrontation
that she had to cancel the next class she was scheduled to teach.
Prior to entering Stright Hall, [Appellant] began recording the
video, indicating that he was going to confront Dr. Bouchat.
According to [Appellant], the purpose for making the video was
because he believed she had treated him poorly in class in the
way she spoke to him and “targeted” him. [Appellant] admitted
that once he informed Dr. Bouchat that he was recording her she
told him he did not have permission, but he continued to record.
Following the confrontation, [Appellant] proceeded to record a
monologue about the situation. After the IUP Police were called,
[Appellant] was told to leave the premises and the video was later
seized pursuant to a warrant. Charges against [Appellant] were
filed on May 6, 2019.
In July 2020, Dr. Bouchat became aware of an article in The
College Fix that portrayed [Appellant] as a victim of persecution
due to his political differences with her. As a result, Dr. Bouchat
began receiving threatening messages via email and social media
with more articles, posts, and videos to follow. Dr. Bouchat’s
home address was also shared, which led to harassment there,
causing her to become fearful for her safety in her own home.
According to Dr. Bouchat, [Appellant] continued to seek attention
due to his case, and even after the trial, she suffers ongoing
defamation and fears for her safety.
Trial Court Opinion, 12/21/20, at 1-3 (citation to transcript omitted).
Appellant proceeded in a non-jury trial on August 18, 2020 and was
subsequently convicted of one count of unlawful interception of a
communication,1 graded as a felony of the third degree. See Trial Court
Opinion, 12/21/20, at 1.
The trial court held a sentencing hearing on October 9, 2020. At
sentencing, Dr. Bouchat provided a victim impact statement. After explaining
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1 18 Pa.C.S.A. § 5703(1).
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her feelings during the incident, she further explained the impact of
Appellant’s continued and connected actions. See. N.T. Sentencing Hearing,
10/9/20, at 3-7. She explained that an online news article in The College Fix
painted Appellant as “the conservative victim of persecution by a liberal
professor” which demonstrated that even without specifically posting the
recording of Dr. Bouchat, Appellant “was seeking the spotlight to spread lies
that were a threat to my professional and personal life as well as my safety.”
Id. at 4. Dr. Bouchat began receiving threats through social media and her
university email. In the following weeks there were “more news articles,
posts, tweets, TikTok videos, a GoFundMe page” and even national recognition
through the Mark Levin Show from Fox News. Id. at 4-5. Appellant personally
created a GoFundMe page, two TikTok videos, and requested to appear on
The Mark Levin Show. Id. at 5. Dr. Bouchat stated she continues to be a
target for news stories on conservative websites that tag her name “always in
bold or red font often with the word convicted” as a result of the “lie that
[Appellant] fabricated to elevate himself in conservative circles.” Id. at 6. Dr.
Bouchat testified that her wish was for “all of this to stop,” and a no-contact
provision where Appellant could not contact her or “continue to spread his
false narrative” because “people such as [Appellant] wield the internet as a
weapon to ruin the lives of individuals like me.” Id. at 7.
After Dr. Bouchat provided her victim impact statement, the trial court
explained its reasons for the sentence it imposed, including the conditions of
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probation the court attached. The trial court reviewed Appellant’s presentence
investigation (PSI) report, the victim’s statements and submissions, the facts
of the case as proven at trial, the sentencing memorandum provided by
defense counsel, and the sentencing guidelines which reflected Appellant’s
prior record score of zero and offense gravity score of five. N.T. Sentencing
Hearing, 10/9/20, at 8. The trial court reasoned:
I have determined that a sentence in the standard range is
appropriate. It is clear that you have shown little or no remorse
for your actions and you have continued to [bully] the victim in
internet posts. Because of your actions[,] the victim is subject to
abuse and bullying. Because of you, the victim has suffered
extreme emotional distress[,] which has caused her to be fearful
in her home. Most of the posts that you make are for your own
benefit to attract attention to yourself. I am therefore as part of
the order sentence, I am going to require that you not post or
cause others to post any information or statements about the
victim on the internet or any other social media platform. … In
addition, in arriving at this sentence I have considered your age
and your immaturity. And while you have no mental health
diagnosis, your inability to show empathy for the victim and to
take responsibility for your actions[,] I do feel that you do have
some mental health issues that you need to address because you
are making decisions that are causing people to suffer as in this
case and also are jeopardizing your own freedom and your future.
Id. at 9-10. The trial court further explained:
And you know, this is a difficult case. I have a victim here who
has been extremely traumatized, who has had her life turned
upside down by what you’ve done here. And standing in front of
me is an intelligent young man with no prior criminal record and
it is a difficult case for me. I considered putting you in jail … for
[48] hours just so you could see how it is. And I have considered
lengthy probation which I think is appropriate here because we
are going to have to keep tabs on you to protect the victim here
and protect society. And I am going to order that you not post
anything about Dr. Bouchat at all, have any contact with her, to
the extent you can remove what you posted[,] I want that done.
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And because if you do anything to harass or affect this lady going
forward, I am going to put you in jail.
Id. at 12. The trial court reiterated the importance that Appellant cannot post
anything about Dr. Bouchat or encourage others to do so. Id. at 13.
Thus, the trial court sentenced Appellant to, inter alia, a seven-year
period of probation with special conditions. See Trial Court Order, 10/9/21.
One of these special conditions prohibited Appellant from “post[ing] or
caus[ing] to be posted any information or comments about the victim [Dr.
Rachelle Bouchat] on the internet or any other social media site, and to the
extent possible, he shall delete any existing posts.” Id. The trial court held
a hearing on Appellant’s post-sentence motions on December 18, 2020, and
thereafter denied the substance of such motions on December 21, 2020. See
Trial Court Opinion, 12/21/20, at 1. This timely appeal followed.2
Appellant raises the following issues:
1. Whether the evidence was insufficient as a matter of law to
sustain a conviction for the unlawful interception of a
communication under [18 Pa.C.S.A.] § 5703(1)?
2. Whether the verdict was against the weight of the evidence?
3. Whether the [trial c]ourt abused its discretion in imposing
special conditions of probation that [Appellant] “shall not post or
cause to be posted any information or comments about the victim
on the internet or any other social media site, and to the extent
possible, he shall delete any existing posts” as these conditions
____________________________________________
2 Appellant filed a notice of appeal on January 11, 2021. Thereafter, Appellant
timely filed a concise statement of errors complained of on appeal pursuant
to Pa.R.A.P. 1925(b). On February 17, 2021, the trial court issued its Rule
1925(a) opinion wherein it incorporated its December 21, 2020 opinion. See
Trial Court Opinion, 2/17/21.
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violated the Appellant’s rights to free expression pursuant to the
First and Fourteenth Amendment to the United States Constitution
and Article 1, Section 7 of the Constitution of the Commonwealth,
were not consistent with his rehabilitative needs[,] and otherwise
exceeded the permissible conditions of probation?
Appellant’s Brief at 7-8.
In Appellant’s first issue, he raises a sufficiency of the evidence
challenge, arguing that “[t]he evidence failed to show that what the Appellant
recorded was an ‘oral communication’ as that term is defined by § 5702 of the
Crimes Code[, 18 Pa.C.S.A. § 5702].” Id. at 19. “Because evidentiary
sufficiency is a question of law, our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d 119, 126
(Pa. 2013). Moreover:
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 [this] 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 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 proof or proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying [this] test, the
entire record must be evaluated and all the 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.
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Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004)
(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004); see also
Commonwealth v. Brown, 52 A.3d 1139, 1163 (Pa. 2012) (stating that, in
reviewing a claim of insufficient evidence, “the relevant question is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier[-]of[-]fact could have found the essential elements of the crime
beyond a reasonable doubt”) (emphasis in original).
Appellant was convicted under the Wiretapping and Electronic
Surveillance Control Act (the “Wiretap Act”), 18 Pa.C.S.A. §§ 5701-5782.
Under § 5703, “a person is guilty of a felony of the third degree if he
intentionally intercepts, endeavors to intercept, or procures any other person
to intercept or endeavor to intercept any wire, electronic or oral
communication.” 18 Pa.C.S.A. § 5703(1). The statute further defines an oral
communication as: “any oral communication uttered by a person possessing
an expectation that such communication is not subject to interception under
circumstances justifying such expectation.” 18 Pa.C.S.A. § 5702. Our
Supreme Court explained:
[T]he proper inquiries are whether the speaker had a specific
expectation that the contents of the discussion would not be
intercepted, and whether that expectation was justifiable under
the existing circumstances. In determining whether the
expectation of non-interception was justified under the
circumstances of a particular case, it is necessary for a reviewing
court to examine the expectation in accordance with the principles
surrounding the right to privacy, for one cannot have an
expectation of non-interception absent a finding of a reasonable
expectation of privacy. To determine the existence of an
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expectation of privacy in one’s activities, a reviewing court must
first examine whether the person exhibited an expectation of
privacy; and second, whether that expectation is one that society
is prepared to recognize as reasonable.
Agnew v. Dupler, 717 A.2d 519, 523 (Pa. 1998). We employ a totality of
the circumstances approach when examining the legitimacy and
reasonableness of a speaker’s expectation of privacy. Commonwealth v.
Prisk, 13 A.3d 526, 531 (Pa. Super. 2011), quoting Commonwealth v.
Moore, 928 A.2d 1092, 1098 (Pa. Super. 2007).
Appellant specifically claims there was insufficient evidence to show the
circumstances of his offense fell within the definition of “oral communication.”
He argues that a speaker voluntarily disclosing information has no
presumptive expectation of privacy in locations other than in the speaker’s
home. Appellant’s Brief at 27-28. Appellant bolsters this argument by noting
that the subject matter and confrontational nature of this exchange disbands
any notion of privacy. Id. at 29. Appellant further contends that Dr. Bouchat’s
expectation of privacy was not reasonable given that the recorded
conversation happened in a business office with the door open, and that at
some point Dr. Bouchat spoke in an elevated voice that was overheard by a
student in the hallway. Id. at 31-34. In sum, Appellant claims that the trial
court “fail[ed] to analyze any relevant factors critical to this analysis[.]” Id.
at 38.
Conversely, the trial court explained “the subject matter discussed is
not the focus of the [c]ourt’s inquiry,” but rather the issue is “whether under
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the circumstances, Dr. Bouchat had a reasonable expectation of privacy in her
office which was violated by [Appellant’s] surreptitious recording.” Trial Court
Opinion, 12/21/20, at 5. The trial court noted that “[a]lthough presumably
anyone could wander into Stright Hall during normal business hours, a
professor’s private office isn’t publicly accessible in the same way the entrance
to the building is.” Id. The trial court rejected Appellant’s arguments as
misreading the relevant caselaw and misunderstanding the full circumstances
of the case at hand. See id. at 6-7 (“Appellant misread caselaw on
expectations of privacy in the workplace and examining open door[s] and
raised voices in context with other [facts,] including the physical positions of
the parties and limited portion of the exchange overheard”).
For over 50 years, courts have recognized a reasonable expectation of
privacy in one’s office or workplace. See Mancusi v. DeForte, 392 U.S. 364,
469 (1968). This expectation, however, may be reduced by other factors
elicited by evidence on a case-by-case basis. See, e.g., O’Connor v. Ortega,
480 U.S. 709, 717 (1987) (public employees have reasonable expectation of
privacy in their workplace that may be reduced by actual office practices and
procedures). In the context of a shared space, “[t]he crucial distinction
between protected and unprotected areas, [ ] is whether an unrelated person
has unfettered access to the area” and whether an individual “has the ability
and right to exclude others from entrance[.]” Commonwealth v. Reed, 851
A.2d 958, 961-962 (Pa. Super. 2004); accord Commonwealth v. Curtin,
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628 A.2d 1132, 1139 (Pa. Super. 1993) (unlike offices, a reception area is
unprotected because it “is used for purposes of greeting and screening those
who enter an office” and the “public and office workers are allowed to walk
freely into a reception area”).
Here, to determine whether there was an oral communication as defined
under the Wiretap Act, we consider whether Dr. Bouchat harbored a subjective
expectation of privacy and whether her expectation was one that society
would recognize as objectively reasonable. Agnew, supra. It is uncontested
that Dr. Bouchat had a subjective expectation of privacy. See Appellant’s
Brief at 36 and 38 (acknowledging Dr. Bouchat’s subjective expectations).
Rather, the focus of our analysis centers upon whether her expectation was
objectively reasonable under the totality of the circumstances. Prisk, supra.For purposes of our review, we briefly recount the relevant
circumstances of the incident. Appellant emailed Dr. Bouchat to request a
meeting for the sole purpose of discussing his final grade. N.T. Non-Jury Trial,
8/18/20, at 17, 55. Prior to the meeting, Appellant purposely declined to
notify Dr. Bouchat that his true intent was to confront her about her perceived
bias against him. Id. at 55.3 Appellant began his video outside of Stright Hall
by explaining what he planned to do and that he intentionally hid the camera
____________________________________________
3 Appellant testified, “[i]n the past I tried to talk to her [about the alleged
discrimination,] and she just refused to talk to me. So, I did not [notify her]
in the email prior to the meeting.” Id. at 55.
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in his backpack before he walked into Stright Hall. See Commonwealth Exhibit
One (hereinafter “Videotape”).
Dr. Bouchat was the sole occupant of her office and she possessed a key
to lock it when she was not present. Appellant entered Dr. Bouchat’s office
and asked to see his final exam. See Commonwealth Exhibit One (hereinafter
“Videotape”). At that time, the door to Dr. Bouchat’s office remained open
and Appellant positioned himself between her and the doorway. No others
were present within the office. Individuals in the hallway outside Dr. Bouchat’s
office could not understand the conversation between Appellant and Dr.
Bouchat when it commenced. Eventually, however, Appellant revealed his
surreptitious recording and accused Dr. Bouchat of treating him unfairly
because his political beliefs differed from hers. Id.; N.T. Non-Jury Trial,
8/18/20, at 19. When she learned that Appellant was recording the
encounter, Dr. Bouchat raised her voice, expressed her non-consent to the
videotape recording, and immediately asked Appellant to leave her office.
Appellant, however, continued to record. Id. at 19, 59. No one outside Dr.
Bouchat’s office understood the parties’ conversation until Dr. Bouchat raised
her voice and asked Appellant to depart from her office. See id. at 36
(defense witness Eric Seidel testifying that the words he overheard were “get
out; get out”).
Based upon the aforementioned circumstances, we conclude that
sufficient evidence allowed the trial court, as fact-finder, to find that Dr.
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Bouchat possessed an objectively reasonable expectation of privacy and
non-interception during a private office conversation with a student ostensibly
intended to review the student’s class performance and final grade. The
evidence demonstrated that the exchange between the parties occurred within
Dr. Bouchat’s private office where she maintained the authority to exclude
others.4 The only individuals within the office during the communication were
Appellant and Dr. Bouchat. See Trial Court Opinion, 12/21/20, at 6. Prior to
entering the office, Appellant concealed his recording equipment to facilitate
his plan to surreptitiously capture a recording of Dr. Bouchat “answer[ing] for
something before he even entered the building to go to her office.” N.T.
Non-Jury Trial, 8/18/20, at 66 (trial court articulating its findings of fact). No
one overheard the parties’ in-office conversation until Appellant revealed his
recording activities and caused Dr. Bouchat to elevate her voice when asking
Appellant to leave. Thus, despite an open door and limited third-party
disclosure, the facts depict a private office meeting between a teacher and a
student to which a reasonable expectation of privacy would extend.
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4 Appellant’s own actions belie his arguments to the contrary. Appellant
scheduled a meeting with Dr. Bouchat to ensure he could meet with her at the
office. Moreover, Appellant temporarily complied when Dr. Bouchat’s directed
him to leave. See Videotape. Therefore, viewed in the light most favorable
to the Commonwealth, Appellant’s own actions demonstrate his belief that this
was Dr. Bouchat’s private office rather than a public office “in a public building”
that is “open to the public at any time.” See Appellant’s Brief at 24.
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Appellant cites the presence of third parties who overheard parts of his
exchange with Dr. Bouchat and an open door to suggest that no reasonable
expectation of privacy could exist in this case. This position is unavailing and
runs counter to the applicable standard, which focuses on the totality of the
circumstances. It is the circumstances that exist when an exchange
commences which are most relevant to the objective expectations of privacy
and non-interception. See Commonwealth v. Parrella, 610 A.2d 1006,
1011 (Pa. Super. 1992) (a speaker does not lose his or her reasonable
expectation of privacy when the interception commenced prior to that
speaker’s actions). At the time of the interception, Appellant led Dr. Bouchat
to believe he was in her private office to discuss his final grade, not to discuss
her alleged bias against him. It was not until after the interception
commenced that Appellant revealed the true purpose for his visit and the fact
that he was capturing the encounter on videotape. These revelations caused
Dr. Bouchat to raise her voice, which then allowed individuals in the hallway
outside her office to hear parts of the ongoing exchange. Under these
circumstances, the trial court rightfully emphasized the stated purpose for the
parties’ meeting, not the circumstances – previously unbeknownst to Dr.
Bouchat - that emerged after the commencement of the recording, when
measuring the objective reasonableness of Dr. Bouchat’s expectation of
privacy and non-interception.
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Moreover, Appellant’s emphasis on the open door of Dr. Bouchat’s
private office is unpersuasive. While important to consider in the totality of
the circumstances, an isolated feature of a physical layout such as an open
door is not, in and of itself, dispositive. See Commonwealth v. Myers, 676
A.2d 662 (Pa. Super. 1996) (reasonable expectation of privacy existed despite
open door because communication was between childhood friends in remote
area); Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989);
Commonwealth v. Dewar, 674 A.2d 714, 718-719 (Pa. Super. 1996). Here,
the totality of the circumstances demonstrated a private office setting to which
a reasonable expectation of privacy extended, notwithstanding the presence
of an open door. Hence, Appellant’s sufficiency challenge merits no relief.
Appellant next claims that the verdict was against the weight of the
evidence. In an argument identical to his sufficiency claim, Appellant contends
that the trial court “gives little or no consideration to the objective factors
which clearly undercut the notion that [Appellant] committed a felony by
recording this confrontation.” Appellant’s Brief at 39. In Appellant’s view, the
trial court improperly “relies primarily on its sympathetic views of the
subjective reaction of the professor, a matter irrelevant to the ultimate
determination.” Id. at 39-40.
Our standard of review of a weight of the evidence claim is well-settled.
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
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appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court's conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quotation, citation,
and emphasis omitted). Moreover,
[t]he weight of the evidence is exclusively for the finder of fact
who is free to believe all, part, or none of the evidence and to
determine the credibility of the witnesses. An appellate court
cannot substitute its judgment for that of the finder of fact. Thus,
we may only reverse the lower court's verdict if it is so contrary
to the evidence as to shock one's sense of justice.
Commonwealth v. Morgan, 913 A.2s 906, 909 (Pa. Super. 2006) (internal
citations omitted). Stated otherwise, an appellant may prevail on a weight of
the evidence claim only where “the award of a new trial is imperative so that
right may be given another opportunity to prevail.” Commonwealth v.
Morales, 91 A.3d 80, 91 (Pa. 2014) (quotation and citation omitted).
Based upon our review of the record and our analysis above pertaining
to the sufficiency of the evidence, we find that Appellant’s convictions do not
shock one’s sense of justice. Bohlen, supra. In denying Appellant’s weight
of the evidence claim, the trial court noted Appellant’s concession that the
facts and credibility determinations are not at issue, thus Appellant’s weight
argument “merely reframes his prior argument on the sufficiency of the
evidence” which the court determined was meritless. Trial Court Opinion,
12/21/20, at 9-10. While Appellant argues that the isolated factors of an open
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door and bystanders overhearing a limited and irrelevant portion of the
conversation are of such greater significance as to outweigh all other
circumstances and entitle him to a new trial, we find these two factors,
amongst other circumstances of this case, are not of such an imperative
nature in and of themselves as to require a new trial “so that right may be
given another opportunity to prevail.” Morales, supra. The trial court, sitting
as fact-finder, was free to believe all, part, or none of the evidence. This Court
may not step into the shoes of the trial judge to reweigh the evidence in a
light more favorable to Appellant. Commonwealth v. Clay, 64 A.3d 1049,
1056 (Pa. 2013). As the trial court’s well-reasoned determination enjoys
record support, we conclude that it did not abuse its discretion.
In his final claim, Appellant takes issue with the trial court’s decision to
impose certain special conditions of probation which restricted his internet
activities. Appellant’s final claim, therefore, implicates the discretionary
aspects of sentencing. See Commonwealth v. Fenton, 750 A.2d 863, 867
n.4 (Pa. Super. 2000) (a challenge to conditions of probation implicates the
discretionary aspects of sentencing) (citation omitted).
When an appellant challenges the discretionary aspects of a sentence,
the right to appeal is not absolute. Commonwealth v. Dunphy, 20 A.3d
1215, 1220 (Pa. Super. 2011). Instead, the appellant must petition this Court
for review. See 42 Pa.C.S.A. § 9781(b). An appellant challenging the
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discretionary aspects of his sentence must invoke this Court’s jurisdiction by
satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect,
Pa.R.A.P. 2119(f); and (4) whether there is a substantial question
that the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal
case citations omitted). An appellate court will not review the merits of an
appeal unless the appellant meets all four criteria. Commonwealth v.
Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017) (“Only if the appeal
satisfies these requirements may we proceed to decide the substantive merits
of Appellant’s claim.”).
Appellant filed a timely notice of appeal, properly preserved his claims,
and filed an appropriate Rule 2119(f) statement in his brief. Appellant argues
within his Rule 2119(f) statement that this appeal presents a substantial
question because the conditions of probation impermissibly burden his First
Amendment free speech rights, lack reasonable relation to his rehabilitative
needs, and are otherwise inappropriate pursuant to 42 Pa.C.S.A. §§ 9754 and
9763. Appellant’s Brief at 42-43.5 An argument that a condition of probation
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5 To the extent that Appellant raised the substantial question that the
conditions of probation are not consistent with his unique rehabilitative needs,
(Footnote Continued Next Page)
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unduly restricts one’s freedom of speech raises a substantial question. See
Commonwealth v. Starr, 234 A.3d 755, 759-760 (Pa. Super. 2020);
Fenton, 750 A.2d at 867. Therefore, we shall proceed to the merits of his
discretionary sentencing challenge.
We recently explained:
As a general matter, the sentencing court is charged to impose a
sentence that is “consistent” with “the protection of the public, the
gravity of the offense as it relates to the impact on the life of the
victim and on the community, and the rehabilitative needs of the
defendant.” 42 Pa.C.S.[A.] § 9721(b). Our standard of review in
this context is well-established:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context,
an abuse of discretion is not shown merely by an error in
judgment. Rather, the appellant must establish, by reference
to the record, that the sentencing court ignored or misapplied
the law, exercised its judgment for reasons of partiality,
prejudice, bias or ill will, or arrived at a manifestly
unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super.
2006). “The rationale behind such broad discretion and the
concomitantly deferential standard of appellate review is that the
sentencing court is in the best position to determine the proper
penalty for a particular offense based upon an evaluation of the
individual circumstances before it.” Commonwealth v. Walls,
926 A.2d 957 ([Pa.] 2007). In conducting our review, this Court
must also “have regard” for: (1) the nature and circumstances of
the offense and the history and characteristics of the defendant;
(2) the opportunity of the sentencing court to observe the
defendant, including any presentence investigation; (3) the
findings upon which the sentence was based; and (4) the
____________________________________________
he failed to develop this argument within his brief to this Court. Consequently,
Appellant waived this issue. See Commonwealth v. Heggins, 809 A.2d
908, 912 n.2 (Pa. Super. 2002) (“an issue identified on appeal but not
developed in the appellant’s brief is abandoned and, therefore, waived.”).
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Pennsylvania Sentencing Guidelines. 42 Pa.C.S.[A.]
§ 9781(d)(1)-(4).
With specific reference to probation conditions, the sentencing
court is required to impose “reasonable conditions” that “it deems
necessary to ensure or assist the defendant in leading a law-
abiding life.” 42 Pa.C.S.[A.] § 9754(c). The scope and substance
of probation conditions is governed by 42 Pa.C.S.[A.] § 9763(b),
which provides a non-exhaustive list of potential conditions.
Pursuant to a catchall provision in this statute, the sentencing
court is generally empowered to impose probation conditions that
require a defendant “to do things” that are “reasonably related to
rehabilitation.” 42 Pa.C.S.[A.] § 9763(b)(15). This Court has
interpreted this statutory rubric as follows:
A probation order is unique and individualized. It is constructed
as an alternative to imprisonment and is designed to
rehabilitate a criminal defendant while still preserving the
rights of law-abiding citizens to be secure in their persons and
property. When conditions are placed on probation orders they
are formulated to insure or assist a defendant in leading a law-
abiding life. Moreover, as long as conditions placed on
probation are reasonable, it is within a trial court’s discretion
to order them.
Commonwealth v. Hartman, 908 A.2d 316, 320 (Pa. Super.
2006) (internal citations omitted). Thus, “[w]hile sentencing
courts have discretion to impose conditions of probation, such
conditions must be reasonable and devised to serve rehabilitative
goals, such as recognition of wrongdoing, deterrence of future
criminal conduct, and encouragement of law-abiding conduct.”
Commonwealth v. Hall, 80 A.3d 1204, 1215 ([Pa.] 2013).
Commonwealth v. Carr, 2021 WL 3852320 at *5-*6 (Pa. Super. Aug. 30,
2021) (parallel citation omitted).
Appellant challenges his special conditions of probation as a violation of
his free speech rights. Here, Appellant makes the blanket assertion that the
conditions “compromise the core First Amendment freedoms [Appellant]
enjoys” because they allegedly “extend to all speech.” Appellant’s Brief at
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43-44 (emphasis in original).6 Appellant concedes, however, that narrowly
tailored restrictions on speech for the protection of victims can be
constitutional, so long as they do not apply to all speech by the defendant.
Id. at 46.
In this case, the trial court contemplated a sentence of incarceration.
See N.T. Sentencing Hearing, 10/9/20, at 12. 7 Instead, it imposed a
seven-year period of probation with special conditions including, inter alia,
that Appellant “shall not post or cause to be posted any information or
comments about the victim on the internet or any other social media site, and
to the extent possible, he shall delete any existing posts.” Trial Court Order,
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6 Notably, all caselaw binding on this Court to which Appellant cites in support
of his claim involve either broadly applicable statutes or civil injunctions. See,
e.g., Packingham v. North Carolina, 137 S.Ct. 1730 (2017) (striking down
broad statute imposing automatic and complete restrictions on computer and
internet access both during and after completion of sentence on entire class
of people); Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971)
(vacating broad civil injunction against organization that prohibited its
members from leafletting or distributing literature of any kind within an entire
city). This case involves neither. Rather, this case involves individualized
conditions of probation imposed as part of a sentence after a specific individual
was convicted of a crime for his conduct against a victim. See Starr, 234
A.3d at 766 n.6 (appellant’s “sole reliance on Packingham would not
necessarily warrant him relief” because the statute at issue in that case
“differs from Appellant’s situation, insomuch as he is subject to probation
supervision that is reviewed regularly”); Commonwealth v. Sperber, 177
A.3d 212, 220-221 (Pa. Super. 2017) (Bowes, J., concurring) (suggesting that
Packingham may not apply to a condition of probation restricting individual
internet access).
7 The standard range of the Sentencing Guidelines recommended punishments
from restorative sanctions up to and including nine months of incarceration.
See N.T. Sentencing Hearing, 10/9/20, at 8-9.
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10/9/20. This special condition is limited to the time period during which
Appellant serves his criminal sentence. During that time, Appellant may
continue to speak out about unfair grading systems, political bias, or any other
topic on the internet or social media so long as he does not include information
about the victim in this case – Dr. Bouchat. Moreover, it does not limit
Appellant from speaking about Dr. Bouchat in any other offline forum. For
example, the trial court’s sentencing order does not preclude Appellant from
engaging in expressive conduct regarding Dr. Bouchat through traditional
pen-and-paper means, distributing literature, or public oration. Although the
special condition directed Appellant “to the extent possible” to delete existing
posts referencing Dr. Bouchat, the trial court did not prohibit Appellant from
engaging in social media platforms or restrict his internet access as a whole.
The sole restrictions imposed by the probation conditions here were (1) to
refrain from posting about Dr. Bouchat on the internet for the duration of
Appellant’s probation and (2) to delete his existing posts referencing Dr.
Bouchat to the extent Appellant is reasonably able to do so. Id. In short, the
challenged order did not impose a limitless ban on expressive activity but,
instead, simply barred online speech discussing Dr. Bouchat and directed the
retracting (if possible) of existing posts.
Where a sentence, as here, is within the sentencing guidelines, we will
only reverse the order where it is clearly unreasonable. Commonwealth v.
Koren, 646 A.2d 1205, 1208 (Pa. Super. 1994). We remain mindful that “a
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person placed on probation does not enjoy the full panoply of constitutional
rights otherwise enjoyed by those who have not run afoul of the law. A
[probationary] order with conditions placed on it will to some extent always
restrict a person’s freedom.” Id. at 1209 (emphasis added).
Similarly, we recognize that a person’s free speech rights are not
absolute. Commonwealth v. Knox, 190 A.3d 1146, 1153-1154 (Pa. 2018).
Rather, restrictions on speech are upheld “so long as they are designed to
serve a substantial governmental interest and do not unreasonably limit
alternative avenues of communication.” Friends of Danny DeVito v. Wolf,
227 A.3d 872, 902 (Pa. 2020). In the context of a challenge to conditions of
probation under § 9763(b)(15), restrictions on free speech will be deemed to
validly serve the rehabilitative needs of the defendant if the facts of the case
establish a reasonable nexus between the restriction imposed and the charged
offense. Carr, 2021 WL 3852320 at *8-*9; Commonwealth v. Houtz, 982
A.2d 537, 541 (Pa. Super. 2009); see also Starr, 234 A.3d at 763-764 (no
abuse of discretion where trial court-imposed internet restriction as special
condition of probation within an individualized assessment of what best served
the aims of rehabilitation and deterrence). While our own research has failed
to uncover a test which governs the permissive scope of restrictions on
expression within the context of a probationary order, we are guided by the
analytical framework of United States v. O’Brien, where a restriction is
deemed valid if:
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(1) it is within the constitutional power of the government;
(2) it furthers an important or substantial government interest;
(3) that governmental interest is unrelated to the suppression of
free expression; and
(4) the incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that interest.
United States v. O’Brien, 391 U.S. 367, 377 (1968); see S.B. v. S.S., 243
A.3d 90 (Pa. 2020), cert. denied - - S.Ct. - - , 2021 WL 4509036 (Oct. 4,
2021); Commonwealth v. Lambert, 147 A.3d 1221, 1229 (Pa. Super.
2019).
Under the first factor of O’Brien, a restriction must be within the
constitutional power of the government to impose. Id. Clearly, it is within
the power of a trial court judge to impose conditions of probation as part of a
sentence. See 42 Pa.C.S.A. § 9721(a) (listing an order of probation as one
of the available sentencing options); 42 Pa.C.S.A. § 9754(b) (“the court shall
attach reasonable conditions . . . necessary to ensure or assist the defendant
in leading a law-abiding life.”). This authority extends to special conditions of
probation that reasonably restrict free speech rights. E.g., Fenton, 750 A.2d
at 868. Therefore, in fashioning Appellant’s sentence, the trial court was
authorized to impose an order of probation containing conditions of probation
that reasonably restrict Appellant’s free speech rights.
Under the second and third factors of O’Brien, the restriction must
further an important governmental interest unrelated to the suppression of
free expression. O’Brien, supra. Conditions of probation validly serve
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multiple important governmental interests, none of which are related to
suppression of free expression. See 42 Pa.C.S.A. § 9754 (ensure or assist
defendant in leading a law-abiding life); Carr, 2021 WL 3852320 at *5
(protection of public, the offense’s impact on the victim and community, and
rehabilitative needs of the defendant); Starr, 234 A.3d at 763 (rehabilitation
and deterrence of criminal activity); Lambert, 147 A.3d at 1229 (cessation
of abuse); Commonwealth v. Hartman, 908 A.2d 316, 321 (Pa. Super.
2006) (protecting the public and preventing recidivism).
Here, the trial court fashioned a probationary sentence with concomitant
conditions designed to serve the aforementioned governmental interests.
Unlike Houtz, where the record revealed “the absence of any facts”
connecting the restriction imposed to a governmental interest, Houtz, 982
A.2d at 541, the certified record in this case demonstrates a sufficient nexus
that the restriction furthers the important governmental interests at stake.
The evidence indicates that Appellant committed the crime for which he was
sentenced with the intent of posting the video on the internet and social media
for his own benefit and notoriety. See N.T. Sentencing Hearing, 10/9/20, at
9. The record demonstrates that the trial court thoroughly examined the facts
of this case in order to make an individualized assessment of what conditions
of probation would best serve the rehabilitative needs of Appellant and
protection of the victim and society. Id. at 8-12. After highlighting Appellant’s
intent, immaturity, lack of remorse, and inability to take responsibility for the
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considerable abuse his actions caused Dr. Bouchat, the trial court found that
restricting Appellant’s ability to post about Dr. Bouchat on the internet and
requiring the deletion of previous posts referencing her would protect Dr.
Bouchat, protect society, and aid Appellant in taking responsibility for his
actions. Id. at 12. These interests are unrelated to the suppression of free
expression. O’Brien.
The last factor of the O’Brien test analyzes whether the restriction is
“narrowly-tailored to advance the important governmental interest at stake …
while remaining silent as to other channels of communication available to [the
a]ppellant.” Lambert, 147 A.3d at 1229. Our Supreme Court recently upheld
an order which, as here, prohibited the appellants from referencing a specific
person. See S.B. v. S.S., 243 A.3d 90 (Pa. 2020), cert. denied - - S.Ct. - -,
2021 WL 4509036 (Oct. 4, 2021). The “gag order” restricted a mother and
her counsel from speaking publicly or communicating about her custody case
in forums “including, but not limited to, print and broadcast media, on-line or
web-based communications,” or inviting, directing, or encouraging third
parties to view or post the same. Id. at 97. Moreover, it directed the mother
and counsel to remove any prior posts. Id. In upholding the gag order, our
Supreme Court concluded:
[W]hen read in context, the order affords [the a]ppellants ample
opportunity to disseminate all of their thoughts into the
marketplace of ideas without restriction on the content of their
message. The gag order further allows [the a]ppellants to voice
all of their opinions regarding issues important to them … and to
testify about these issues before governmental bodies in an effort
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to remedy these vital societal concerns. The only limitation on
[the a]ppellants’ speech lies in the manner of
communication, as they are precluded from conveying such
public speech in a way that exposes Child’s identity and subjects
him to harm.
Id. at 107 (emphasis added). The Court noted that a restriction, while
required to be narrowly-tailored, “need not be the least restrictive or least
intrusive means of [achieving its permitted goal].” Id. at 105 n.12, quoting
Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). Consequently,
the Court upheld the gag order’s restrictions on free speech as narrowly
tailored to further the important government interest of preventing harm to
the target of the gag order’s protection. Id. at 111.
Similarly, here, the conditions on Appellant’s probation are valid. The
restrictions do not constitute a blanket prohibition on Appellant’s internet
usage or expressive activity. Appellant is free to speak anywhere regarding
topics important to him, as long as his online speech is not conveyed “in a
way that exposes [Dr. Bouchat’s] identity and subjects [her] to harm.” See
S.B., supra. Moreover, by its terms, Appellant is free to refer to Dr. Bouchat
in public speech outside of the internet and social media platforms. See id.
at 111 (valid order left open “ample alternatives for communication”);
Lambert, 147 A.3d at 1229 (valid order remained “silent as to other channels
of communication available); Fenton, 750 A.2d at 868 (valid order did not
“bar appellant from expressing his views in an appropriate manner in the
appropriate forum.”). Contrary to Appellant’s assertions, the conditions of
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probation here were narrowly-tailored to serve his unique rehabilitative needs
and to further the protections required under the facts of the present case.
We discern no abuse of discretion in the imposition of Appellant’s special
conditions of probation. Therefore, Appellant’s discretionary sentencing
challenge is without merit.
Judgment affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2021
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