Com. v. Mason, M. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
MARCEL RENNIER MASON :
:
Appellant : No. 861 WDA 2019
Appeal from the Judgment of Sentence Entered June 4, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0000139-2018
BEFORE: BOWES, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 4, 2021
Marcel Rennier Mason (Appellant) appeals from the judgment of
sentence entered in the Allegheny County Court of Common Pleas, following
his conviction of one count each of hindering apprehension or prosecution
(“hindering apprehension”) and criminal conspiracy.1 Appellant argues the
trial court erred in finding the Commonwealth presented sufficient evidence to
support a guilty verdict for both charges and abused its discretion in admitting
text messages into evidence without properly authenticating them. Because
we conclude the evidence was insufficient to support Appellant’s conviction of
hindering apprehension, we reverse that conviction, and vacate the judgment
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 5105(a)(5), 903.
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of sentence on that charge. We affirm Appellant’s judgment of sentence with
respect to his conspiracy conviction.
The trial court summarized the facts as follows:
This case originated when New Kensington, Pennsylvania
Police Officer Brian Shaw was shot and killed while trying to make
a traffic stop on November 17, 2017. The investigation quickly
developed Rahmael Holt as a suspect, and an arrest warrant for
Holt was obtained by the Allegheny County Sheriff's Office. The
FBI Greater Pittsburgh Safe Streets Task Force obtained
information that Holt had been in contact with his cousin,
[Appellant. Appellant] lived with his girlfriend[, Asya Benson,] at
833 Hinnerman Street, Duquesne, PA. The investigation also
disclosed that [Appellant] was wanted by the Allegheny County
Police and the Pennsylvania Board of Probation and Parole Police.
Investigating Officers went to the Hinnerman Street address and
[Benson], [Appellant’s] girlfriend, consented to and allowed police
to enter the residence to execute the arrest warrants for the
[Appellant]. [Appellant] was found lying on a bed in the living
room[2] and taken into custody, without incident.
* * *
During questioning by police about Rahmael Holt’s whereabouts,
[Appellant] repeatedly denied having any contact with Holt and
stated, “[Appellant] had not seen him in weeks and that he (Holt)
was not welcome in the residence[.”] (Affidavit of probable cause
November 20, 2017).
Trial Ct. Op. 6/16/20, at 3-4.
Later, on November 29, 2017, Westmoreland County Detective Ray
Dupilka interviewed Appellant in the medical unit of the Allegheny County Jail.
The trial court summarized that interview as follows:
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2 We note Appellant is “paralyzed” and thus is confined to a bed in his living
room. N.T., 3/7/19, at 11; Appellant’s Brief at 21.
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[Appellant] told the detective that Rahmael Holt had come to [his]
residence on Hinnerman Street on November 18, 2017. [Benson]
let Holt in the residence where he stayed for the day. [Appellant]
indicated that he learned of a media account of Holt being wanted
for the murder of Officer Shaw, and that he advised Holt that he
could no longer stay at his residence[.] [Appellant] indicated that
[Benson] then drove Mr. Holt from the residence to another
location. [Appellant] did not inform law enforcement about the
location of Mr. Holt prior to his arrest. This account differed,
significantly, from the investigating officer[’] s prior initial contact
with [Appellant].
Trial Ct. Op. 3.
The evidence presented at Appellant’s bench trial also revealed that at
7:32 p.m. on November 20, 2017, Benson purchased one TracFone. N.T.,
2/14/19, at 31. Appellant told Detective Dupilka the TracFone belonged to
Benson. N.T., 3/7/19, at 13. However, the TracFone was recovered from
Appellant’s living room “on the couch [ ] to the immediate left of the bed . . .
located in the living room.” N.T., 2/14/19, at 33. Forensic examination of the
TracFone revealed that it was used on November 20, 2017, to communicate
with another TracFone, which was recovered at the location where Holt was
apprehended. See N.T., 3/7/19, at 21-25. An incoming message on the
phone recovered from Appellant’s residence, which originated from the phone
recovered with Holt, stated: “[T]ell [Benson] I said thank you for everything .
. . what she did for me. She know how I feel about her.” Id. at 22-23.
Additional messages requested the receiver — allegedly Appellant — to “[g]et
rid of” clothing and an I.D. left “upstairs” and “erase” all text messages. Id.
at 23-24.
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Appellant was subsequently charged with one count of hindering
apprehension at subsection (a)(5). See 18 Pa.C.S. § 5505(a)(5) (“provides
false information to a law enforcement officer”). Appellant filed a pre-trial
motion challenging, inter alia, whether the Commonwealth could establish a
prima facie case that Appellant intended to hinder the apprehension of Holt
by providing false information to police. See Appellant’s Omnibus Pretrial
Motion, 4/19/18, at ¶¶ 10-13. Although no order appears on the docket, the
parties concede the trial court denied that motion. See N.T., 3/7/19, at 3.
On February 4, 2019, the Commonwealth filed a motion to amend the criminal
information to add the following two charges: (1) one count of hindering
apprehension at Subsection (a)(2), and (2) one count of criminal conspiracy.
See 18 Pa.C.S. 5105(a)(2) (a person is guilty of hindering apprehension if he
“provides or aids in providing a weapon, transportation, disguise or other
means of avoiding apprehension or effecting escape”). The court granted the
motion on February 14, 2019, before the start of Appellant’s non-jury trial.
See N.T., 2/14/19, at 6.
As noted above, the case proceeded to a non-jury trial, which
commenced on February 14, 2019, and continued on March 7, 2019. The trial
court found Appellant guilty of hindering apprehension at subsection (a)(5),
and criminal conspiracy. The court found Appellant not guilty of hindering
apprehension at subsection (a)(2).
On June 4, 2019, the trial court sentenced Appellant to a term of 15 to
30 months’ imprisonment on each of the two charges to be served
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concurrently. Appellant filed this timely appeal on June 12, 2019. Thereafter,
Appellant complied with the trial court’s order directing him to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant raises two issues for our review:
1. Did the Trial Court err in finding that the evidence introduced
at trial was sufficient to support a guilty verdict as to the crimes
of Hindering Apprehension and Criminal Conspiracy, when no
reasonable inference could be drawn from the evidence that
[Appellant] intended to hinder the apprehension of [Holt] nor
conspired with [Benson] to do so?
2. Did the Trial Court abuse its discretion by admitting text
messages into evidence without properly authenticating that such
messages were sent by [Appellant]?
Appellant’s Brief at 3.
In his first issue, Appellant avers the evidence presented was insufficient
to support his convictions of both hindering apprehension and conspiracy.
Specifically, with regard to hindering apprehension, he argues the evidence
failed to establish he acted with the requisite intent to hinder the apprehension
of Holt. Appellant’s Brief at 12. Rather, relying on Commonwealth v.
Gettemy, 591 A.2d 320 (Pa. Super. 1991), Appellant insists that “providing
false answers in response to questions initiated by law enforcement officers is
not hindering apprehension or prosecution.” Appellant’s Brief at 13, quoting
Gettemy, 591 A.2d at 321 (citation omitted). With regard to his conviction
of conspiracy, Appellant maintains the Commonwealth failed to prove he
conspired with Benson to aid Holt’s escape. Appellant’s Brief at 19. Appellant
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argues the evidence presented showed Benson “acted on her own volition” to
aid Holt. Id.Our standard of review is well-settled:
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 [that of] 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 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. Irvin, 134 A.3d 67, 75 (Pa. Super. 2016).
We first consider Appellant’s conviction of hindering apprehension. The
trial court found Appellant guilty of 18 Pa.C.S. § 5105(a)(5) which reads as
follows:
(a) Offense defined. - A person commits an offense if, with
intent to hinder the apprehension, prosecution, conviction or
punishment of another for crime or violation of the terms of
probation, parole, intermediate punishment or Accelerated
Rehabilitative Disposition, he:
* * *
(5) provides false information to a law enforcement officer.
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18 Pa.C.S § 5105(a)(5)
As noted supra, Appellant argues the Commonwealth presented no
evidence from which the court could draw a reasonable inference from that he
intended to hinder the apprehension of Holt. Appellant’s Brief at 12. Appellant
contends the evidence could only prove he had lied to police following his
arrest. Id. Appellant states this conduct “does not rise to the level of conduct
prohibited under the statute” and that a guilty verdict based on these facts
would “expand the scope of the statute[ ]” with which he has been convicted.
Id. In support of his interpretation of the statute, Appellant relies on
Gettemy and Feese, 79 A.3d 1101 (Pa. Super 2013).
In Gettemy, the police interviewed the defendant and her boyfriend
while investigating the disappearance of a woman and her motorhome.
Gettemy, 591 A.2d at 322. Upon police questioning, the defendant and her
boyfriend gave the police false information about the location of the
motorhome. Id. The defendant denied any knowledge of the woman’s
disappearance or the location of the motorhome. Id. Further investigation
revealed the defendant and her boyfriend were seen in possession of the
motorhome prior to police questioning. Id. The defendant was charged with
hindering apprehension or prosecution under Section 5105(a)(5). Id. The
defendant filed a motion to quash alleging the Commonwealth failed to
present a prima facie case. Id. The court granted the motion and the
Commonwealth appealed. Id.-7-
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This Court affirmed the ruling of the trial court. At the time of the
offense, the statute read:
(a) Offense defined. A person commits an offense if, with intent
to hinder the apprehension, prosecution, conviction or punishment
of another for crime, he:
(5) volunteers false information to a law enforcement
officer.
18 Pa.C.S § 5105(a)(5) (emphasis added). Relying on the definition of
“volunteers” as well as commentary in the Model Penal Code (MPC), the
Gettemy Court held that “providing false answers in response to questions
initiated by law enforcement officers does not constitute hindering
apprehension or prosecution.” Gettemy, 591 A.2d at 323.
After Gettemy, however, the legislature amended the statute and
changed “volunteers false information to a law enforcement officer” to
“provides false information to a law enforcement officer.” See 1996, Dec.
18, P.L. 1074, No. 160, §1, effective in 60 days (emphasis added). Appellant
insists the amendment “had no practical change on the interpretation of the
statute, and the precedential value of Gettemy remains in effect.”
Appellant’s Brief at 14. Further, he notes a panel of this Court in Feese cited
Gettemy with approval despite the fact the offenses in that case occurred
after the amendment to Subsection (a)(5).3 See Feese, 79 A.3d at 1125.
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3 We note that Feese is distinguishable when considering the present facts
because in Feese, the defendant committed the “affirmative act” of
withholding and altering documents — he did not simply provide a false
answer upon police questioning. Feese, 79 A.3d at 1125.
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The trial court found Gettemy distinguishable from the facts in the
present case. The court opined:
Gettemy focused on the fact that the police had initiated
questioning that resulted in the untruthful statements, rather than
the defendant volunteering [them]. Since, Gettemy, the relevant
portion of the statute changed from a defendant taking the
initiative to ‘volunteer’ information to ‘providing’ information.
Trial Ct. Op. at 5. Thus, we must determine whether the change in the
statutory language leads to a different result.
Preliminarily, we note that we reviewed the legislative history, and found
no discussion as to why the statute was amended. Therefore, we must engage
in statutory interpretation.
It is well established that:
When interpreting a statute, the court must ascertain and
effectuate the intent of the legislature and give full effect to each
provision of the statute if at all possible. 1 Pa.C.S.A. § 1921(a);
Commonwealth v. Brown, 620 A.2d 1213, 1214 (1993);
Commonwealth v. Edwards, 559 A.2d 63, 66 (1989), appeal
denied, 565 A.2d 1165 (1989). In construing a statute to
determine its meaning, courts must first determine whether the
issue may be resolved by reference to the express language of the
statute, which is to be read according to the plain meaning of the
words. 1 Pa.C.S.A. § 1903(a). See Commonwealth v.
Berryman, 649 A.2d 961 (1994) (en banc).
Commonwealth v. Lopez, 663 A.2d 746, 748 (Pa. Super. 1995). We also
note:
In ascertaining the intention of the General Assembly in the
enactment of a statute the following presumptions, among others,
may be used:
(1) That the General Assembly does not intend a result that
is absurd, impossible of execution or unreasonable.
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(2) That the General Assembly intends the entire statute to
be effective and certain.
(3) That the General Assembly does not intend to violate
the Constitution of the United States or of this
Commonwealth.
(4) That when a court of last resort has construed the
language used in a statute, the General Assembly in
subsequent statutes on the same subject matter intends the
same construction to be placed upon such language.
(5) That the General Assembly intends to favor the public
interest as against any private interest.
1 Pa.C.S. § 1922.
Here, since the statute does not provide definitions, we first look to the
“common and approved usage” of the terms “provides” and “volunteers.” See
1 Pa.C.S. §1903 (a). Webster’s Dictionary defines “provide” as “to make
something available to. [4]” “Volunteer” is defined as “to offer or bestow
voluntarily.[5]” The two terms, in application, are similar. However, the trial
court, without any explanation, presumed a different outcome resulted when
the language was changed from “volunteers” to “provides.”
To further examine the meaning of this section, we look to the MPC
since Section 5105 “is derived from Section 242.3 of the Model Penal Code.”
Gettemy, 591 A.2d at 509.
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4 Merriam-Webster.com, “provide,” available at https://www.merriam-
webster.com/dictionary/provide.
5 Merriam-Webster dictionary, “Volunteer,” available at
https://www.merriam-webster.com/dictionary/volunteer.
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The commentary to the MPC explains the meaning of the statute by
way of definitions and examples. It specifies:
A purpose to aid the offender to avoid apprehension . . . is not
proved merely by showing that the defendant gave succor to one
who was in fact sought for a crime.
Model Penal Code, § 242.3, Commentary at 229. At the common law, any
help or aid to an individual was sufficient to constitute a crime as long as
the aiding party was aware the individual they were helping was guilty of a
felony. Id. at 231. However, the MPC Commentary also emphasized that
“certain kinds of assistance should not be made criminal[.]” Id. at 232.
With regard to the subsection criminalizing the “volunteering” of false
information to police, the commentary explained:
Mere failure to report a crime is not proscribed by this action.
Neither is giving misleading or even false answers to
inquiries initiated by police.
Id. at 235 (emphasis added). See also Gettemy, 591 A.2d 323; Feese, 79
A.3d 1125. Rather:
[T]his solution [is] premised in part on the fear that a wider reach
for this subsection would invite abusive charges by police against
persons interviewed in the course of investigating crime. . . . This
provision is intended to reach those who take initiative in
throwing the police off track.
Model Penal Code, § 242.3, Commentary at 235.
Relying upon the reasoning in both the MPC commentary and
Pennsylvania case law, we conclude the Commonwealth was required to
prove Appellant intended to hinder or “throw police off track[ ]” in their
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investigation to apprehend Holt. See Model Penal Code, § 242.3,
Commentary at 235; Gettemy, 591 A.2d at 323. Upon our review, we agree
with Appellant that this subsection of the statute was not intended to
criminalize the giving of false or misleading answers to questions initiated
by police. See id. Further, as noted supra, our review of the legislative
history revealed no basis to conclude the 1996 amendment — which
substituted the word “provides” for “volunteers” — was intended to broaden
the scope of criminal behavior under the statue.
Had Appellant given information to police that may have delayed or
compromised apprehending Holt, that could have risen to the conduct
contemplated when writing Subsection (a)(5). See Commonwealth v.
McClelland, 204 A.3d 436, 446 (Pa. Super 2019) (holding that when
defendant “provided an imperfect alibi for her husband on the day of the
murder[,]” a jury could reasonably infer her intent was to “hinder [police]
efforts to apprehend [ ] her husband.”) (citation omitted). Here, upon police
initiated questioning, Appellant falsely told police he had not seen Holt. Trial
Ct. Opinion at 4. Appellant did not provide an alibi for Holt or give
information amounting to the intent to “hinder police efforts[.]” See
McClelland, 204 A.3d at 446 (citation omitted). We believe the statute
would be met if Appellant had lied about something relevant to Holt’s
location or whereabouts as opposed to simply telling the police he had no
contact with him. See id. Police arrested Holt “close to four a.m.” on
November 21, 2017, shortly after speaking with Appellant. N.T., 2/14/19,
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at 47; N.T., 3/7/19, at 34-35.6 Appellant’s false statement did not impair
the police’s ability to apprehend or track down Holt, nor did it misdirect
police from his location or trail. See id. Additionally, the Commonwealth
offered no evidence Appellant had knowledge of Holt’s whereabouts. The
text messages, believed to be between Appellant and Holt, offered no
information regarding the location of the sender or receiver. The
Commonwealth offered no evidence suggesting Appellant was aware of
Holt’s location or was hiding this information from police. They offered only
evidenced that Benson knew Holt’s location after Holt left the Hinnerman
Street residence. Id. at 10.
Subsection (a)(5) would seem to require a causal connection between
the conduct and the actual apprehension of the suspect. We do not see this
causal connection. Thus under these specific facts, Appellant did not
“provide” false information to police that would amount to a violation of
Section 5105(a)(5). Accordingly, we hold that, under the reasoning of
Gettemy, Appellant’s single false statement was insufficient to demonstrate
he intended to “throw police off track[ ]” or hinder the apprehension of Holt.
____________________________________________
6 We glean this fact from the argument of both Appellant’s attorney and the
Commonwealth’s attorney where Appellant’s attorney argued police spoke to
Appellant “around 11 p.m. on the 20[th and police] go to Ladora Street[,
where Holt is apprehended,] at 4 a.m. on the 21[st.]” N.T., 3/7/19, at 34. In
the Commonwealth’s argument, it stated Holt “is arrested only a few hours”
after Appellant denied seeing him. Id. at 35.
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See Model Penal Code, § 242.3, Commentary at 235; Gettemy, 591 A.2d
at 323.
We also note that if we read the statute as the trial court proposes,
Appellant could be held criminally responsible for not wanting to be involved
in a police investigation. This reading of the statute would expand
Subsection (a)(5) to equate uninvolvement with the intent to hinder. We
conclude this would result in an “absurd” and “unreasonable” interpretation.
See 1 Pa.C.S. § 1922(1). Thus, we reverse Appellant’s conviction of
hindering apprehension, and vacate his judgment of sentence on that
charge.
Next, we address Appellant’s challenge to the sufficiency of the evidence
supporting his conviction for conspiracy. Appellant argues there was not
sufficient evidence to support a conviction for conspiracy because the evidence
“show[ed] that [Benson] acted on her own volition to aid and assist [Holt.]”
Appellant’s Brief at 19. He states that at no point did he have the specific
intent required under the statute to conspire with Benson. Id. at 20.
Appellant maintains he did not invite Holt into his home, drive Holt to another
location, purchase TracFones, or destroy or conceal evidence. Id. Because
of his paralysis and inability to “ascend the staircase,” Appellant maintains he
had nothing to do with any evidence from Holt found on the second floor of
his home. Id. at 21 (citation omitted). He further contends, there was no
evidence that he agreed to work with Benson to hinder apprehension of Holt,
and that the Commonwealth’s case was built on only “mere suspicion and
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conjecture, which is insufficient to establish a conspiracy.” Id. at 21-22
(citation omitted). Appellant insists the Commonwealth’s theory of conspiracy
relied only on the fact that Appellant and Benson were living together and
dating at the time, which is insufficient to prove a conspiracy. Id. at 22.
Conspiracy is defined as follows:
(a) Definition of conspiracy. — A person is guilty of conspiracy
with another person or persons to commit a crime if with the intent
of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or
one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S. § 903(a)(1)-(2).
This Court has stated:
The essence of criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. By its very
nature, the crime of conspiracy is frequently not susceptible
of proof except by circumstantial evidence. And although
a conspiracy cannot be based upon mere suspicion or
conjecture, a conspiracy may be inferentially established by
showing the relationship, conduct or circumstances of the
parties, and the overt acts on the part of the co-conspirators
have uniformly been held competent to prove that a corrupt
confederation has in fact been formed.
* * *
Among those circumstances relevant to proving conspiracy are
association with alleged conspirators, knowledge of the
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commission of the crime, presence at the scene of the crime, and,
at times, participation in the object of the conspiracy.
Commonwelath v. Azim, 459 A.2d 1244, 1246-47 (Pa. Super. 1983)
(citations and punctuation omitted).
In the instant case, we conclude the Commonwealth presented sufficient
evidence to establish Appellant conspired with Benson to hinder the
apprehension of Holt. Although we concluded supra that the evidence was
insufficient to sustain Appellant’s conviction for hindering apprehension under
subsection (a)(5), we note that he was charged with conspiracy for providing
clothing, a cell phone and transportation to a “fugitive,” 7 which tracks the
language of hindering apprehension under subsection (a)(2). See 18 Pa.C.S.
§5105(a)(2) (“A person commits an offense if, with intent to hinder the
apprehension . . . of another . . . he provides or aids in providing a weapon,
transportation, disguise or other means of avoiding apprehension or effecting
escape[.]”). Although the trial court found Appellant not guilty of this
subsection, we note:
[A]s conspiracy requires proof only of an agreement and an overt
act in furtherance of the conspiracy, a defendant may be found
guilty of conspiracy without being convicted of the underlying
offense.
Commonwealth v. Riley, 811 A.2d 610, 617 (Pa. Super. 2002).
Here, the evidence presented at trial established Appellant and Benson
agreed to aid Holt in evading his arrest. The Commonwealth presented text
____________________________________________
7 Commonwealth’s Motion to Amend Criminal Information 2/4/19, at 3
(unpaginated).
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messages proving the existence of a conspiracy between Appellant and
Benson. The Commonwealth also presented circumstantial evidence that the
text messages were exchanged between Appellant and Holt. In the messages,
there was a request to thank Benson for her aid as well as instructions to
dispose of evidence later found in Appellant’s home. N.T., 3/7/19, at 22-24.
The trial court found the Commonwealth met its burden to prove an
“agreement and an overt act in furtherance of the conspiracy” existed between
Appellant and Benson. See Riley, 811 A.2d at 617. Additionally, we
recognize “[t]he Commonwealth may sustain its burden of proving every
element of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence.” See Irvin, 134 A.3d at 75. Accordingly, we
conclude the evidence was sufficient to support Appellant’s conviction of
criminal conspiracy.
In his second issue, Appellant argues the trial court abused its discretion
when it allowed improperly authenticated text messages into evidence.
Appellant’s Brief at 23. Appellant contends the Commonwealth offered no
direct evidence to prove he authored the text messages and the circumstantial
evidence offered “depends on the unreasonable and unestablished premise
that since [Benson and Appellant] lived together, [Appellant] must have
authored the messages.” Id. Appellant further states that since one of the
messages asked the recipient to discard evidence on the second floor, it could
not have been sent to him because he is paralyzed. Id. at 25.
This Court has stated:
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Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court
clearly abused its discretion. Admissibility depends on relevance
and probative value. 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 supports a reasonable inference or
presumption regarding a material fact.
Commonwealth v. Koch, 39 A.3d 996, 1002 (Pa. Super. 2011) (citation
omitted). Further:
[A]n abuse of discretion is more than a mere error of judgment;
thus, a sentencing court will not have abused its discretion unless
the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.
In more expansive terms, our Court recently offered: An abuse of
discretion may not be found merely because an appellate court
might have reached a different conclusion, but requires a result of
manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.
Commonwealth v. Dodge, 957 A.2d 1198, 1200 (Pa. Super. 2008) (citation
omitted).
Under Pennsylvania Rule of Evidence 901, “authentication is required
prior to admission of evidence.” Koch, 39 A.3d at 1002. “The proponent of
the evidence must introduce sufficient evidence that the matter is what it
purports to be.” Pa.R.E. 901(a). This may be accomplished by showing “[t]he
appearance, contents, substance, internal patterns, or other distinctive
characteristics of the item, taken together with all the circumstances.” Pa.R.E.
901 (b)(4).
With regard to electronic writings, such as text messages, this Court has
explained:
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[E]lectronic 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. Circumstantial evidence may
suffice where the circumstances support a finding that the writing
is genuine.
* * *
[W]e [have] rejected the argument that e-mails or text messages
are inherently unreliable due to their relative anonymity and the
difficulty in connecting them to their author. We reasoned that
the same uncertainties existed 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.”
Concluding that electronic communications, such as e-mail and
instant messages, can be authenticated within the framework of
Pa.R.E. 901 and our case law, we declined to create new rules
governing the admissibility of such evidence. We held that such
evidence 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.
Koch, 39 A.3d at 1003 (citations omitted).
In the instant case, the Commonwealth presented circumstantial
evidence that Appellant and Holt were the sender and recipient of the admitted
text messages. Additionally, no testimony was offered to suggest a third
party, aside from Appellant and Benson, lived at the Hinnerman Street
residence at the time the TracFone was recovered there. The locations of the
phones corresponded to both Holt’s location at the time of his arrest and
Appellant’s home. N.T., 3/7/19, at 11. Notably, the phone found in
Appellant’s residence was found next to Appellant “where he was laying on
the first floor.” Id. at 20. The trial court pointed specifically to the text
message stating, “[ ] tell [Benson] I said thank you for everything[,]” as being
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particularly persuasive concerning authentication. Trial Ct. Op. at 5. At trial,
the Commonwealth argued:
[T]he phone found at Hinnerman Street is [Appellant]
communicating with the phone [recovered from the location
where Holt was arrested]. Because there are only two people in
this home. And there is no reason why this person would be saying
thank [Benson] if that person was [Benson-. It would be thank
you. So they are telling the other person in the home, which is
[Appellant] to pass along this information.
N.T., 3/7/19, at 26. We agree.
Under the specific circumstances of this case — which include
Appellant’s limited mobility, the recovery of the phone next to where Appellant
was lying when he was arrested, and the content and surrounding context of
the text messages — we conclude the Commonwealth met the requisite
standard for authentication and admission into evidence. Contrary to
Appellant’s claim, the facts presented here establish much more than
Appellant’s mere physical proximity to the phone. See Appellant’s Brief at 26.
Because we detect no abuse of discretion on the part of the court’s ruling,
Appellant is entitled to no relief.
Therefore, we conclude the evidence was insufficient to sustain
Appellant’s conviction of hindering apprehension. Accordingly, we reverse
that conviction, and vacate his judgment of sentence on that charge. Because
Appellant’s sentence for hindering apprehension was imposed to run
concurrently with his sentence for conspiracy, our reversal of that conviction
does not disturb the overall sentencing scheme. See Commonwealth v.
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Lomax, 8 A.3d 1264, 1268 (Pa. Super 2010) (stating when this Court vacates
a sentence without disturbing the overall sentencing scheme, there is no need
for remand). Thus, in all other respects, we affirm.
Judgment of sentence affirmed in part and vacated in part. Jurisdiction
relinquished.
Judge Colins joins the memorandum.
Judge Bowes files a concurring/dissenting memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/04/2021
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