In the Int. of: T.W. Appeal of: T.W. ( 2021 )

J-A14033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF T.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: T.W., A MINOR :
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: No. 872 WDA 2020
Appeal from the Dispositional Order Entered July 17, 2020
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-JV-0000093-2020
IN THE INTEREST OF: T.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: T.W., A MINOR :
:
:
:
: No. 873 WDA 2020
Appeal from the Dispositional Order Entered July 17, 2020
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-JV-0000253-2019
IN THE INTEREST OF: T.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: T.W., A MINOR :
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:
:
: No. 874 WDA 2020
Appeal from the Dispositional Order Entered July 17, 2020
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-JV-0000421-2019
J-A14033-21
BEFORE: MURRAY, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED: September 3, 2021
T.W., a minor (a female born in June 2006), appeals from the
Dispositional Order entered following her adjudication of delinquency for
retaliation against a witness1 at CP-63-JV-0000093-2020 (“093-2020”), and
the Dispositional Orders revoking her probation at CP-63-JV-0000253-2019
(“253-2019”), and CP-63-JV-0000421-2019 (“421-2019”). We affirm.
In September 2019, T.W. accepted a Consent Decree on charges of
hindering apprehension, simple assault, and disorderly conduct at 253-2019.
As a result, T.W. was placed on six months of probation.
Regarding 421-2019, on December 7, 2019, two male juveniles, J.W.
and C.U.,2 broke into the home of Stephen Watley (“Watley”) and Ashlie
Burrup (“Burrup”), where they beat Watley and Burrup with a baseball bat
and robbed the couple of money and marijuana. Police alleged that T.W. and
S.L., a female juvenile and a friend of T.W., participated in planning the
robbery, hiding materials that were used to commit the robbery and
contraband taken in the robbery, and assisting J.W. and C.U. escape from
police. As a result, the juvenile court adjudicated T.W. delinquent of the
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1 18 Pa.C.S.A. § 4953(a).
2 J.W. was T.W.’s boyfriend. J.W. and C.U. were charged as adults. In July
2020, J.W. and C.U. each pled guilty to robbery and related charges and were
sentenced to an aggregate term of four to eight years in prison.
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offenses of aggravated assault with a deadly weapon, criminal conspiracy to
commit aggravated assault, criminal conspiracy to commit robbery, hindering
apprehension or prosecution, prohibited offensive weapon, possessing
instruments of crime, obstructing the administration of law, and possession of
a small amount of marijuana.3 On December 27, 2019, the juvenile court
adjudicated T.W. delinquent at 421-2019, and revoked the Consent Decree at
253-2019. The juvenile court placed T.W. at Andromeda House, a residential
treatment facility for juvenile girls, for an indefinite period of time. Due to the
COVID-19 pandemic, T.W. was released from Andromeda House on April 8,
2020, and placed on indefinite probation.
On May 9, 2020, Officer Zlatan Avdic (“Officer Avdic”), of the
Monongahela City Police Department, received a report from S.L. that T.W.
had made several posts about S.L. on the Snapchat social media application.4
Specifically, T.W.’s posts contained captions reading, “ANYONE WANNA SEE
THIS SNITCHES PAPERWORK ?” and “I HAD 17 CHARGES, SHE GOT 0 FOR
RATTIN[.]” Additionally, several of the posts depicted handwritten statements
by S.L. and Affidavits of probable cause related to the robbery case. S.L. told
police that unrelated third parties sent her pictures of the posts, and that she
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3 18 Pa.C.S.A. §§ 2702(a)(4), 903(a)(2), 5105(a)(1), 908(a), 907(a), 5101;
35 P.S. § 780-113(a)(31).
4 S.L. had testified against T.W. at the December 27, 2019, hearing. Further,
S.L. had been asked to testify against J.W. and C.U. at their court proceedings,
which at the time were still pending.
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recognized the username on the Snapchat page to be T.W.’s. Further, S.L.
told police that after T.W. made the posts, she had been receiving threats
from other people, including phone calls threatening to fight S.L. S.L.
expressed her fear that someone would try to hurt her, as she had not yet
testified against J.W. for his role in the robbery case.
As a result of the Snapchat posts, the Commonwealth filed a
Delinquency Petition, at 093-2020, with one count of retaliation against a
witness, victim, or party. On July 17, 2020, the juvenile court held a
merit/violation of probation hearing, where it heard testimony from multiple
witnesses, including S.L. On July 20, 2020, the juvenile court entered an
Order adjudicating T.W. delinquent on the retaliation charge at 093-2020,
finding T.W. to be in violation of her probation, and revoking her probation at
253-2019 and 421-2019. The Order also imposed, as a condition of probation,
a prohibition “from the use of social media[,] with the only exception being
for defined educational purposes and/or in furtherance of treatment….” Order,
7/20/20, at 2; see also N.T., 7/17/20, at 126-27 (wherein the juvenile court
explains to T.W. that she is “going to be restricted and prohibited from using
social media. And we’re going to put this prohibition in place until the next
review hearing[,]” and that, because of the COVID-19 pandemic and school
being conducted virtually, “[t]he only exclusion and exception to the
prohibition would be for things that are utilized for educational purposes or for
purposes of working through the therapy….”).
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T.W. filed timely separate Notices of Appeal,5 and separate, but
identical, court-ordered Pa.R.A.P. 1925(b) Concise Statements of matters
complained of on appeal.
T.W. raises the following issues for our review:
1. Did the Commonwealth present insufficient evidence to sustain
the charge of retaliation against a witness?
2. Was the finding that [T.W.] committed [r]etaliation [a]gainst a
witness against the weight of the evidence?
3. Did the [j]uvenile [c]ourt impose improper conditions of
probation?
4. Did the [j]uvenile [c]ourt erroneously find that [T.W.] had
violated her probation?
Brief for Appellant at 8.
In T.W.’s first issue, she argues that the Commonwealth presented
insufficient evidence to adjudicate her delinquent of retaliation at 093-2020.
Id. at 13-23. T.W. asserts that she did not directly make threatening
communications to S.L.; rather, S.L. only became aware of T.W.’s posts on
social media by receiving pictures of the posts from third parties. Id. at 13-
16. T.W. asserts that the posts she made constituted protected activity under
the First Amendment, and that references to the number of charges S.L. was
facing and S.L.’s written statements were merely factual statements, not
threats. Id. at 16-18. Finally, T.W. claims that the Commonwealth failed to
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5 On October 6, 2020, this Court entered an Order consolidating T.W.’s appeals
sua sponte.
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properly authenticate the Snapchat posts, and failed to prove that T.W. was
the individual who made the posts. Id. at 18-23.
Our standard of review is well settled:
When a juvenile is charged with an act that would constitute
a crime if committed by an adult, the Commonwealth must
establish the elements of the crime by proof beyond a reasonable
doubt. When considering a challenge to the sufficiency of the
evidence following an adjudication of delinquency, we must review
the entire record and view the evidence in the light most favorable
to the Commonwealth.
In determining whether the Commonwealth presented
sufficient evidence to meet its burden of proof, the test to be
applied is whether, viewing the evidence in the light most
favorable to the Commonwealth, and drawing all reasonable
inferences therefrom, there is sufficient evidence to find every
element of the crime charged. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by wholly circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not be absolutely incompatible with a
[juvenile]’s innocence. Questions of doubt are for the hearing
judge, unless the evidence is so weak that, as a matter of law, no
probability of fact can be drawn from the combined circumstances
established by the Commonwealth.
Interest of D.J.B., 230 A.3d 379, 386 (Pa. Super. 2020) (citation omitted).
Retaliation against a witness is defined as follows: “A person commits
an offense if [s]he harms another by any unlawful act or engages in a course
of conduct or repeatedly commits acts which threaten another in retaliation
for anything lawfully done in the capacity of a witness, victim or a party in a
civil matter.” 18 Pa.C.S.A. § 4953(a).
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In its Opinion, the juvenile court addressed T.W.’s challenge to the
sufficiency of the evidence as follows:
During the July 17, 2020[,] hearing, testimony and evidence
was presented and produced by the following individuals:
Christina Munshower, Juvenile Probation Officer [(“Officer
Munshower”)][;] Juvenille [sic] I.B.[;] … S.L.[;] Officer Avdic[;]
Shea Michael Patterson[;] and Angelica Mervis. Acceptance of
such testimony in a light most favorable to the Commonwealth
establishes [r]etaliation against witness, victim or party beyond a
reasonable doubt.
[] Officer [] Munshower testified that [T.W.] was charged with
[r]etaliation against a witness and a probation violation was filed
against [T.W.] Both actions [were] taken after[] Officer Avdic …
alleged that [T.W.] posted on Snapchat social media multiple
photos that were incriminating against [] S.L., a witness in a
previously[-]adjudicated case involving [] T.W., which also
involved adult “co-actors” with unresolved criminal cases. [N.T.,
7/17/20,] at 9-10. The posted photos, later introduced during the
proceeding, depicted the court filings and paperwork with a
captions [sic] stating, “anyone wanna see the snitch[es]
paperwork?” and “I have 17 charges, she got [0].” [Id.] at 10.
Additional posted pictures included the witness’s actual written
statements provided to the police department. Id. The witness,
identified as [] S.L.[,] was established to be a witness in an
ongoing criminal robbery investigation involving [J.W. and C.U.]
and [T.W.]
Testimony from [] S.L. was also received during the July 17,
2020[,] hearing. S.L. testified that she was “involved in a matter
before this court that involved” [T.W.], and [J.W. and C.U.] [Id.]
at 40. [] S.L. also testified that she “has been asked to testify”
against [J.W. and C.U.] Id. [] S.L. also positively identified police
statements, usernames, written statements and case information
that was posted about her and the juvenile case in which she was
involved. [Id. at 45-48]. Further testimony from [T.W.]’s mother
established that [T.W.] posted the court paperwork and
statements at issue. [Id. at] 104.
Paired with the history of the case, observance of the
witnesses’ demeanor and evaluation of potential motive and/or
bias, perspective and point of view, this [c]ourt opined that the
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Commonwealth had established that [T.W.] committed the
[j]uvenile [a]ct of [r]etaliation against a witness. This [c]ourt
heard the evidence and assessed the credibility of the witnesses
who testified during the hearing. The [c]ourt, after careful
observation of the witnesses and evidence presented during the
course of the proceeding, found sufficient evidence to adjudicate
[T.W.] delinquent for [r]etaliation against witness, victim or party,
finding the Commonwealth proved every element beyond a
reasonable doubt.
Juvenile Court Opinion, 11/2/20, at 3-5.
Upon review, the juvenile court’s findings are supported in the record,
and its legal conclusions are sound. The evidence, viewed in the light most
favorable to the Commonwealth as the verdict-winner, showed that T.W.
engaged in a course of conduct, via multiple Snapchat posts, that resulted in
threats to S.L., who had testified against T.W. and was planning to testify
against J.W. and C.U. in their upcoming proceedings.
Finally, with regard to T.W.’s claim, nested within her sufficiency claim,
that the Snapchat posts were not properly authenticated, we adhere to the
following standard of review:
The admissibility of evidence is a matter within the sound
discretion of the trial court and will be reversed only where there
is a clear abuse of discretion. Our standard of review of a
challenge to an evidentiary ruling is therefore limited. Abuse of
discretion is not merely an error of judgment [but is established
only where] the judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the action is a
result of partiality, prejudice, bias or ill will.
Commonwealth v. Williams, 241 A.3d 1094, 1101 (Pa. Super. 2020)
(citation omitted).
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Rule 901 provides, in relevant part, that “[to] satisfy the requirement of
authenticating or identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what the proponent
claims it is.” Pa.R.E. 901(a). This Court has long recognized that “testimony
from a witness who has knowledge that a matter is what it is claimed to be”
is sufficient to satisfy the authentication requirement under Rule 901.
Commonwealth v. McKellick, 24 A.3d 982, 988 (Pa. Super. 2011) (citations
and internal quotation marks omitted), appeal denied, 34 A.3d 828 (Pa.
2011); see also Pa.R.E. 901(b)(1).
[A]uthentication of 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. 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….
Commonwealth v. Danzey, 210 A.3d. 333, 338 (Pa. Super. 2019) (citations
omitted), appeal denied, 219 A.3d 597 (Pa. 2019).
Here, S.L. testified that she recognized the username of the account
that made the Snapchat posts as that used by T.W. See N.T., 7/17/20, at
42. Further, T.W.’s mother testified that Snapchat was the only social media
account that T.W. had access to. Id. at 103. T.W.’s mother testified that she
had also been sent the Snapchat posts; she periodically monitored T.W.’s
Snapchat page; and T.W. had made the posts at issue. Id. at 104, 108-10.
Officer Avdic also testified that he had spoken to the third party who provided
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S.L. with the posts, and that the third party confirmed to Officer Avdic that
she had knowledge that T.W. had made the posts. Id. at 84-85. Accordingly,
we conclude that the juvenile court did not abuse its discretion in finding that
the Snapchat posts were properly authenticated. See Danzey, supra. In
light of the foregoing, because the Commonwealth presented sufficient
evidence to adjudicate T.W. delinquent for retaliation, we can grant T.W. no
relief on this claim.6 See D.J.B., supra.
Second, T.W. argues that her adjudication for retaliation at 093-2020
was against the weight of the evidence. Brief for Appellant at 24-25. T.W.
claims that the weight of the evidence did not support her adjudication, as she
never directly communicated with S.L.; the posts did not detail a specific
threat; and there was no evidence that T.W. actually had authored the posts.
Id. at 25.
When challenging the weight of evidence supporting an adjudication of
delinquency, this Court employs a well-settled standard of review:
[W]e may only reverse the [juvenile] court’s [adjudication
of delinquency] if it is so contrary to the evidence as to shock
one’s sense of justice. Moreover, where the [] court has ruled on
the weight claim below, an appellate court’s role is not to consider
the underlying question of whether the verdict is against the
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6 T.W. also asserts in her brief that she cannot be adjudicated under section
4953, because the statute prohibits retaliating against a “witness, victim or a
party in a civil matter,” and S.L. was a witness in a criminal matter. See Brief
for Appellant at 16-17. We note that our Supreme Court recently ruled that
the term “witness” in the retaliation statute applies to witnesses in criminal
matters. See Commonwealth v. Nevels, 235 A.3d 1101, 1104-05 (Pa.
2020).
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weight of the evidence. Rather, appellate review is limited to
whether the [juvenile] court palpably abused its discretion in
ruling on the weight claim.
Hence, a [juvenile] court’s denial of a weight claim is the
least assailable of its rulings. Conflicts in the evidence and
contradictions in the testimony of any witnesses are for the fact
finder to resolve….
In the Interest of J.M., 89 A.3d 688, 692 (Pa. Super. 2014) (citation
omitted).
The juvenile court, in denying T.W.’s weight claim, stated that it
carefully considered the testimony and evidence presented at the hearing, and
its adjudication was reached using the exercise of sound judgment, wisdom,
and skill. See Juvenile Court Opinion, 11/2/20, at 7. Our review of the record
confirms that the juvenile court did not abuse its discretion when it denied
T.W.’s weight claim. As a result, we cannot grant T.W. relief on this claim.
See In the Interest of J.M., supra.In T.W.’s third issue, she argues that the juvenile court improperly
restricted T.W. from using social media except for educational or treatment
purposes. Brief for Appellant at 26-33. T.W. asserts that such a prohibition
was overly broad, unreasonable, and unlawfully curtailed her First Amendment
right to freedom of speech. Id. at 27-30. T.W. describes the juvenile court’s
prohibition as a content-based restriction of her speech, and not narrowly
tailored to her rehabilitative needs. Id. at 31-32. T.W. also argues that the
social media prohibition was vague and ambiguous, as the juvenile court did
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not specify what constitutes “social media,” or an “educational purpose.” Id.
at 32-33.
“The Juvenile Act grants broad discretion to the court when determining
an appropriate disposition. We will not disturb a disposition absent a manifest
abuse of discretion.” In re J.G., 45 A.3d 1118, 1120 (Pa. Super. 2012)
(citations and quotations omitted).
Section 6352 of the Juvenile Act, 42 Pa.C.S.A. §§ 6301-6365, provides,
in relevant part, as follows:
§ 6352. Disposition of delinquent child
(a) General rule.--If the child is found to be a delinquent child
the court may make any of the following orders of disposition
determined to be consistent with the protection of the public
interest and best suited to the child’s treatment, supervision,
rehabilitation, and welfare, which disposition shall, as appropriate
to the individual circumstances of the child’s case, provide
balanced attention to the protection of the community, the
imposition of accountability for offenses committed and the
development of competencies to enable the child to become a
responsible and productive member of the community:
***
(2) Placing the child on probation under the supervision of
the probation officer of the court … under conditions and
limitations the court prescribes.
42 Pa.C.S.A. § 6352(a)(2).
This Court has stated the following regarding a condition of probation:
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.
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Moreover, as long as conditions placed on probation are
reasonable, it is within a trial court’s discretion to order them.
Commonwealth v. Houtz, 982 A.2d 537, 539-40 (Pa. Super. 2009)
(citations omitted).
In this case, the juvenile court provided the following explanation in
support of its disposition:
[T]he juvenile [c]ourt is tasked with finding [the] “least
restrictive alternatives” in determining the appropriate disposition
for juvenile offenders. With [T.W.], contacts with juvenile
probation began in September of 2019 when she received a
[C]onsent [D]ecree. See [N.T., 7/17/20,] at 7. [T.W.] received
new charges, including aggravated assault with a deadly weapon,
criminal conspiracy to commit aggravated assault with a deadly
weapon, conspiracy to commit burglary, hindering apprehension
or prosecution, amongst other charges and was adjudicated in
December of 2019. Id. at 8. [T.W.] went sent [sic] to placement
following the December adjudication and remained in placement
until April of 2020. Twelve (12) days after being released from
placement, the events leading to the present adjudication
occurred.
Addressing the concerns for delinquency while accessing
[sic] the least restrictive alternatives, th[e juvenile c]ourt
attempted to provide a disposition with specificity. Th[e juvenile
c]ourt found that, based on the established facts in the
adjudication [P]etition, [T.W.] should be restricted in her use of
social media. “[T.W.], you are going to be restricted and
prohibited from using social media. And we’re going to put this
prohibition in place until the next review hearing. However, with
that being said, I recognize with the COVID epidemic that’s going
on there’s going to be some requirement that you have to use
electronics and perhaps (inaudible) purposes of school.” [Id.] at
126. “The only exclusion and exception to the prohibition was for
educational, therapeutic and other services.[”] Id.
Juvenile Court Opinion, 11/2/20, at 8-9.
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We cannot conclude that the juvenile court’s restriction from T.W. using
social media outside of educational and therapeutic purposes violated T.W.’s
First Amendment rights. The conduct resulting in T.W.’s adjudication and the
revocation of her probation had a clear nexus to social media, as T.W. made
the retaliatory posts using a social media application. Further, the juvenile
court permitted T.W. to use social media and/or the Internet for educational
or treatment purposes. See Order, 7/20/20, at 2. Cf. Houtz, 982 A.2d at
538 (wherein a complete ban on Internet and computer access as a condition
of probation was overly broad, when there was no evidence that the offense
at issue was facilitated by Internet or computer usage). Accordingly, the
prohibition was not overly broad, and this claim fails. See In re J.G., supra.
In her final issue, T.W. argues that the juvenile court erred in concluding
that she had violated her probation at 253-2019 and 421-2019. Brief for
Appellant at 34-37. T.W. asserts that no evidence existed to show that she
had violated the terms of her probation barring her from contacting individuals
involved in the criminal cases, as she had blocked S.L. from her Snapchat and
S.L. could not see T.W.’s posts. Id. at 35. T.W. points out that she never
directly communicated with anyone else named in the probation conditions.
Id. at 35. T.W. asserts that if this Court were to find that the Commonwealth
presented insufficient evidence to adjudicate her delinquent of retaliation, a
violation of probation could not be established. Id. at 35-36. Further, T.W.
claims that the juvenile court’s statement, i.e., that she had violated the
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prohibition against “other juvenile activity,” was too vague. Id. at 36.
Alternatively, it was unclear that she failed to complete the general
requirements and mandates of probation. Id.
“The Juvenile Act expressly provides that placement of a juvenile on
probation subjects the juvenile to ongoing court supervision and conditions.”
In Interest of M.M., 690 A.2d 175, 177 (Pa. 1997) (citing 42 Pa.C.S.A.
§ 6352(a)(2) (providing for placement of a delinquent child on probation under
court supervision, subject to conditions)). The Juvenile Act grants broad
discretion to the juvenile court in entering a dispositional order that finds a
juvenile in violation of her probation, and this Court will not disturb such a
disposition absent a manifest abuse of discretion. See In re D.S., 37 A.3d
1202, 1203 (Pa. Super. 2011).
Here, we discern no abuse of discretion in the juvenile court finding that
T.W. had violated her probation. As discussed above, there was sufficient
evidence to support T.W.’s new adjudication of delinquency for retaliation
against a witness. Having been found delinquent of the new offense, we agree
with the juvenile court that probation was no longer effective, and revocation
was warranted. Accordingly, T.W. is not entitled to relief on this claim. See
id.Dispositional Orders affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/3/2021
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