Com. v. Malloy, S. ( 2021 )

J-A10020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN MALLOY :
:
Appellant : No. 1244 EDA 2020
Appeal from the Judgment of Sentence Entered March 9, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002402-2019
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN MALLOY :
:
Appellant : No. 1287 EDA 2020
Appeal from the Order Entered June 10, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0002402-2019
BEFORE: PANELLA, P.J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED OCTOBER 26, 2021
Appellant, Shawn Malloy, appeals from the judgment of sentence
entered on March 9, 2020, as made final by the denial of Appellant’s
post-sentence motion on June 10, 2020. We affirm.
The trial court ably summarized the underlying facts of this case:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A10020-21
Prior to the incidents that brought Appellant to court, he had
a lengthy career as a police officer with the Conshohocken
Borough Police Department. In the evening hours of
November 21, 2017, a domestic incident occurred between
Appellant and his wife in the parking lot of the Allstar Bar in
New Hanover Township, Montgomery County. This bar is
located across the street from their house. Appellant arrived
as a customer at the bar at approximately 4:30 [p.m.] that
day. Later that evening, [Appellant’s wife] (hereinafter
"victim") walked over to the bar, and the two verbally argued
in the parking lot near where Appellant's truck was parked.
Shortly thereafter, Appellant drove away and the victim
walked home. Appellant returned to the bar shortly
thereafter. Suspecting Appellant would return to the bar, the
victim also returned and saw Appellant's truck parked in the
parking lot. She gained entry into Appellant's truck by using
the code on the door to the vehicle. Appellant was outside
the bar on the deck and noticed lights on in his car. He found
the victim in his car and a brief scuffle ensued. The victim
sustained minor injuries. She then went home.
The victim did not go to the police immediately that night.
She claimed she was afraid to report this incident because
her husband, Appellant, was a police officer. Appellant had
often conveyed to her that "things could happen if [she] were
to report to the police." Despite her fears, the victim went to
the New Hanover Township Police Department the next day
and encountered Detective Michael Coyle. She was still afraid
to say anything or make any statement at that time due to
the fact that Appellant was a police officer. She testified, "I
didn't know what would happen if I said anything, from them
not believing me to, I don't know, losing jobs, everything. I
was very scared." She took Detective Coyle's card and went
home.
During this time, Appellant obtained a temporary custody
order for the children based on his claim that the victim was
going to harm herself or the couple's children. He informed
her of this. Still very emotional and upset, [the victim] called
Detective Coyle from her car, which she parked in a
cul-de-sac near her home. Detective Coyle came to her
location. She told him she was ready to give a statement, and
they went back to the police station where the victim gave a
written statement. Appellant arrived at the station at around
-2-
J-A10020-21
the same time in order to turn over a copy of the emergency
custody order.
As a result of the subsequent investigation, on November 24,
2017[,] police filed charges of simple assault and harassment
against Appellant. (Montgomery County docket number CR
1010-2018).[fn.1] On January 11, 2018, the charges were held
for court after a preliminary hearing. In the months that
followed Appellant's arrest, Appellant engaged in an
extensive and pervasive campaign, utilizing letters, text
messages and phone calls, in an effort to harass, intimidate,
or otherwise coerce the victim to drop the assault charges
and/or refrain from testifying. As a result of this behavior,
police filed additional charges against Appellant, including
intimidation of a witness/victim, criminal use of a
communication facility, obstructing administration of law,
and harassment, over a span of many dates in late 2017 and
2018. . . .
[fn.1] The Commonwealth’s motion to consolidate cases
CR 1010-2018 and CR 2402-2018 was granted by order
dated October 31, 2019. At trial, Appellant was found not
guilty of the simple assault charge. The [trial] court found
Appellant guilty of the summary harassment charge at
the sentencing hearing on March 9, 2020.
For conduct that occurred on December 6, 2017, Appellant
was found guilty of intimidation of a witness/victim - withhold
information and criminal use of a communication facility. On
that date, the victim received a text message on her phone
from a phone number 484-206-7631, which number was
unknown to her. The text message said, "check your mailbox
for a very important correspondence." In the mailbox was a
letter that said:
[]I can't believe they made sure that was in the paper,
you and the kids must be so embarrassed. Shows they
don't care about anyone but destroying certain people.
Evidently Shawns [sic] defense has a couple videos of you
attacking him. One with wine and one where you hit him
a bunch of times in the back of the head while grabbing
his mouth and neither show him fighting back. Check
your house for cameras, the angle is downward towards
a brown leather couch . . . he may still be able to watch
-3-
J-A10020-21
them or record remotely. If they turned those videos over
to independent law enforcement, they may have no
choice but to arrest you to cover their ass, the videos are
pretty damning. If called DO NOT TALK TO ANYONE, USE
YOUR RIGHT TO REMAIN SILENT AND DO NOT GIVE ANY
STATEMENTS OR SUBMIT TO AN INTERVIEW regarding
the videos. DO NOT COMMENT OR DENY, JUST REMAIN
SILENT. And make sure those cameras get taken down.[]
[The victim] believed this was from Appellant. She testified
that upon receipt of this letter she felt very scared because
she knew Appellant had gone to wiretap school as part of his
police training and had knowledge about how to wire a house
with cameras. She was scared that Appellant had been in
and around her home, and that he was attempting to instill
fear in her related to the recent charges for which he was
arrested.
Detective Michael Coyle of the New Hanover Township Police
Department investigated this text message and letter. His
investigation revealed that phone number 484-206-7631 was
traced to a company by the name of Mathrawk, LLC.
Mathrawk[] is a mobile application development company
that sells applications for Android and Apple phones which
allows a person to send a text message from a different
phone number than their own. Detective Coyle obtained a
search warrant for Mathrawk. He learned that the subscriber
information associated with the Mathrawk phone number
484-206-7631 was . . . Appellant's personal cell phone
[number]. Investigation revealed that the Mathrawk account
was created on December 2, 2017, approximately ten [] days
after the date of the incident at the Allstar Bar and eight []
days after Appellant was arrested on the charges related to
that incident. The records indicated that on December 6,
2017 at 10:34 [p.m.], a text message was sent to the victim's
cell phone stating, "check your mailbox for a very important
correspondence." This message was sent with Appellant's cell
phone using the Mathrawk application to appear as if it was
coming from a different phone number, a number that was
unknown to the victim. Appellant admitted at trial that he
created the fake phone number to send this text message to
the victim.
-4-
J-A10020-21
For conduct that occurred on January 10, 2018, Appellant
was found guilty of obstructing administration of law or other
government function, and criminal use of a communication
facility. On that date, [the victim] received an e-mail at
approximately 11:04 [p.m.] from an account with the name
Ronald White and the e-mail address
"rjresquire@outlook.com." (hereinafter "Ronald White
e-mail"). This name and e-mail address were unknown to the
victim. The victim received this email on January 10, 2018,
the day prior to the preliminary hearing for the assault case
related to the incident at the Allstar Bar. The e-mail address
contained the word "esquire," appearing as if the
correspondence [were] sent from an attorney. While this e-
mail purports to be from an attorney, the e-mail does not
contain a name, phone number, or address at the bottom of
the e-mail as professional e-mails typically do. It stated:
[ ] [Victim], with the pending preliminary hearing, I am
sure you are scared, as I am certain Shawn is as well. It's
a shame the police have pushed this far in order to get
him, leaving you without any say. They do not care who
is embarrassed. It is a shame this process may take a
year, involve testifying at the preliminary hearing, a
habeas corpus hearing, suppression hearings, and the
ultimate jury trial. Win or lose, both you and Shawn's
name [sic] will be dragged through the mud, all details[,]
your sex life over the years, all personal stuff will now be
public record, and your children may be called to testify
solely because the Police really wants him bad. There
actually is a simple way to end it all. It would stop the
criminal process, end all criminal proceedings, and most
importantly protect you from any Police harassment or
intimidation. This is in no way an attempt to coerce you
or push you in any direction, but I don't think anyone has
given you any options or told you the truth about all the
process will intail [sic]. Let[']s face it, they don't care
about Shawn, they don't care about you or your kids, and
it's not like Shawn is going to be honest with you about
what his defense is going to be, and he probably gave his
lawyer full power. There is an option, a simple solution if
you have the strength or actual independence to do it. At
the preliminary hearing you will be prepped on questions
and answers, simply refusing to testify will not help, they
can and will proceed without you. If you choose to do so,
-5-
J-A10020-21
all criminal stuff could end. Let them prep you, don't say
anything, then, when you take the stand, at the very first
question, you can make this statement as your answer:
'I have been pushed into this and bullied by the Police
without any say. After consulting with a private attorney
about the truth of everything that happened, I am
utilizing my 5th Amendment right and refusing to answer
any questions. I will not cooperate any further in any
proceedings, or with the authorities.' Then remain silent
regardless of what is asked. This simple statement when
made exactly as written, completely ends the criminal
case and protects you from any repercussions. It
acknowledges you are doing so knowingly. Not
attempting to influence you, or even asking you to do this,
its [sic] just an option if you really want the criminal [sic]
to end immediately.[]
Further investigation revealed that this e-mail originated at a
known residence of Appellant. Detective Coyle obtained a
search warrant for Microsoft for the e-mail account on the
correspondence. The rjresquire@outlook.com account was
created on January 10, 2018 at 10:55 [p.m.]. Nine (9)
minutes later, at 11:04 [p.m.], the message was sent to the
victim. The IP address associated with the e-mail was traced
to Verizon Business. As a result, Detective Coyle issued a
search warrant for Verizon Business. The search revealed
that the e-mail account and the message that was sent [to]
the victim were created at the address where Appellant
resided at the time. Appellant's known e-mail address at the
time was srmalloy@msn.com. The Detective learned through
his investigation that the Ronald White e-mail and multiple
"srmalloy'' e-mails were sent from identical IP addresses.
Appellant was also found guilty of six harassment charges for
conduct that occurred on May 1, 2018 and May 2, 2018. This
conduct consisted of approximately [200] repeated phone
calls from Appellant's personal cell phone . . . to numbers
owned by the victim, from both blocked and unblocked
numbers, beginning on May 1st and continuing through the
night and into the next day. Some of the calls employed the
*67 feature to block the caller ID and appear as if the call
was coming from an unknown or blocked number. Appellant
admitted to making these phone calls to the victim on these
dates.
-6-
J-A10020-21
Trial Court Opinion, 8/21/20, at 3-10 (citations omitted).
The jury found Appellant guilty of: one count of intimidation of
witnesses or victims, two counts of criminal use of communication facility, one
count of obstructing administration of law or other governmental function, and
six counts of harassment.1 Further, the trial court found Appellant guilty of
one count of summary harassment.2 On March 9, 2020, the trial court
sentenced Appellant to serve an aggregate term of two to six years in prison
for his convictions. The trial court denied Appellant’s post-sentence motion
on June 10, 2020 and Appellant filed a timely notice of appeal. Appellant
numbers four claims on appeal:
1. Whether the trial court committed error and abused its
discretion when fashioning a top of the guidelines [two to six]
year cumulative sentence for [Appellant] by considering
actions for which he was acquitted as well as irrelevant facts?
2. Whether the trial court committed error and violated
[Appellant’s] right to due process by preventing the cross
examination of complaining witness, [the victim], at
sentencing?
3. Whether the trial court committed error and abused its
discretion by failing to appropriately address or issue any
sanctions for the Commonwealth’s impermissible retention of
attorney-client work product?
4. Whether the trial court committed error and abused its
discretion by failing to account for the [victim’s] established
____________________________________________
1 18 Pa.C.S.A. §§ 4952(a)(3), 7512(a), 5101, and 2709(a)(5), (6), and (7),
respectively.
2 18 Pa.C.S.A. § 2709(a)(1).
-7-
J-A10020-21
complicity and thus failing to find sufficient evidence for the
convictions?
Appellant’s Brief at 5-6 (some capitalization omitted).
We have reviewed the briefs of the parties, the relevant law, the certified
record, the notes of testimony, and the opinion of the able trial court judge,
the Honorable Risa Vetri Ferman. We conclude that Appellant is not entitled
to relief in this case, for the reasons expressed in Judge Ferman’s August 21,
2020 opinion. Therefore, we affirm on the basis of Judge Ferman’s thorough
opinion and adopt it as our own. In any future filing with this or any other
court addressing this ruling, the filing party shall attach a copy of Judge
Ferman’s August 21, 2020 opinion.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/26/2021
-8-
' IN THE COURT OF COMMON PLEAS
OPINION
Circulated 09/14/2021 01:56 PM
MONTGOMERY COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CR-2402-2019
vs
... 1244 EDA 2J!20 ~
SHAWN ROGERS MALLOY . 1287 EDA 2020
·c
1
C,
OPINION N
-0
FERMAN, J. August 21, 2020 :i:
Factual and Procedural History
Appellant, Shawn Malloy, appeals from this court's order dated June 10,
2020 denying his post-sentence motion. On November 7, 2019, a jury found
appellant guilty of ten crimes that occurred on various dates related to
Appellant's attempt to scuttle the prosecution of a domestic violence assault, in
~hich it was alleged the Appellant a·ssaulted his wife, the victim in this case.
They are: one count of intimidation of a witness/victim - withhold information2
(December 6, 2017); two counts of criminal use of a communication facility3
(December 6, 2017, January 10, 2018); one count of obstructing
administration of law or other government function 4 (January 10, 2018), two
counts of harassment-communicated repeatedly in an anonymous manner 5
(May 1, 2018; · May 2, 2018); two counts of harassment-communicated
. repeatedly at extremely inconvenient hours6 (May 1, 2018, May 2, 2018); two
1
These cases were consolidated, sua sponte, by order of the Superior Court dated July 29, 2020.
2
-18 Pa.CS.A. § 4952(a)(3) (F3).
'18 Pa.C.S.A. § 7512(a) (F3).
4
18 Pa.C.S.A. § 5101 (M2).
5
18 Pa.C.S.A. § 2709(a)(5) (M3).
6
18 Pa.C.S.A. § 2709(a)(6) (M'l).
Page 1 of40
counts of harassment-communicated repeatedly 7 (May 1, 2018, May 2, 2018).
On March 9, 2020, following a sentencing hearing, Appellant was sentenced as
follows: at count 5, intimidation of a witness/victim (December 6, 2017), a term
of imprisonment for not less than fourteen (14) months nor more than 36
(thirty-six) months 8 ; at counts 10 and 11, criminal use of a communication
facility (December 6, 2017 and January 10, 2018), a term of imprisonment for
nine (9) to twenty-four (24) months to run consecutive to the sentence imposed
at count 5; 9 at count 15, obstructing administration of law or other government
function, a term of imprisonment for not less than one (1) month nor more
than twelve (12) months to run consecutive to the sentence imposed at counts
10 and 11, for a total of twenty-four (24) months to six (6) years. In addition,
Appellant was sentenced to one (1) year of probation for the six harassment
charges. Appellant is RRRI eligible. At the sentencing hearing, the victim
provided a victim impact statement. In addition, Appellant called a number of
character witnesses to testify to his good reputation in the community.
On March 19, 2020, Appellant filed a timely motion for reconsideration of
sentence. On June 10, 2020, the court denied Appellant's motion for
reconsideration of sentence. On June 26, Appellant filed a timely notice of
appeal, appealing the court's order dated June 10, 2020 denying his post-
sentence motion. 10 On, June 30, 2020, the court ordered Appellant to file a
7
· 18 Pa.C.S.A. § 2709(a)(7) (M3).
8
At count 5, Appellant was also sentenced to pay the costs of prosecution.
9
Counts IO and 11 to run concurrently to each other.
IO Pennsylvania Rule of Criminal Procedure 720(B)(l)(a)(c) provides that the post-sentence motion is optional.
Because the post-sentence motion is optional, the failure to raise an issue with sufficient particularity in the post-
Page 2 of 40
concise statement of issues raised on appeal, which Appellant timely filed on
July 21, 2020. The undersigned now files her l 925(a) opinion.
A factual background follows. Prior to the incidents that brought
Appellant to court, he had a lengthy career as a police officer with the
Conshohocken Borough Police Department. In the evening hours of November
21, 2017, a domestic incident occurred between Appellant and his wife in the
parking lot of the Allstar Bar in New Hanover Township, Montgomery County.
This bar is located across the street from their house. Appellant arrived as a
customer at the bar at approximately 4:30 that day. (N.T. 11/5/19 at 105).
Later that evening, Ms. Malloy (hereinafter "victim") walked over to the bar, and
the two verbally argued in the parking lot near where Appellant's truck was
parked. (N.T. 11/4/19 at 39-42; 11/5/19 at 107). Shortly thereafter,
Appellant drove away and the victim walked home. (N.T. 11/4/19 at 43).
Appellant returned to the bar shortly thereafter. (N.T. 11/6/19 at 100-101).
Suspecting Appellant would return to the bar, the victim also returned and saw
Appellant's truck parked in the parking lot. She gained entry into Appellant's
truck by using the code on the door to the vehicle. (N .T. 11 / 4 / 19 at 44-45).
Appellant was outside the bar on the deck and noticed lights on in his car. He
sentence motion will not constitute a waiver of the issue on appeal as long as the issue was preserved before or
during trial. Pa.R.Crim.P. 720(B)(J)(a)(c). This language precluding waiver of issues not raised in post-sentence
motions implicitly requires an appeal to be taken from the judgment of sentence, not the order denying post-sentence
motions. An appeal from an order denying post-sentence motions would necessarily challenge only those issues
raised in the motion. However, Rule 720 permits a defendant to raise additional issues on appeal. An appeal taken
from the judgment of sentence permits the Superior Court to review all properly preserved issues raised by the
defendant. See Com. v. Chamberlain, 658 A.2d 395, 397 (Pa. Super. 1995). It is important to note that Appellant's
notice of appeal states that he is appealing the order denying the post-sentence motion, and not the judgement of
sentence, which became final when the court denied his post-sentence motion. Appellant brings many claims on
appeal, some of which were not raised in his post-sentence motion. The court will address all of Appellant's claims.
Page 3 of40
found the victim in his car and a brief scuffle ensued. (N.T. 11/4/ 19 at 46-48).
The victim sustained minor injuries. She then went home. (N.T. 11/4/19 at
50-51).
The victim did not go to the police immediately that night. She claimed
she was afraid to report this incident because her husband, Appellant, was a
police officer. (N.T. 11/4/19 at 56-58). Appellant had often conveyed to her
.that "things could happen if [she] were to report to the police." (N.T. 11/4/19
at 56-57). Despite her fears, the victim went to the New Hanover Township
Police Department the next day and encountered Detective Michael Coyle. She
was still afraid to say anything or many any statement at that time due to the
fact that Appellant was a police officer. (11/4/19 at 57-58; N.T. 11/5/19 at
134-135). She testified, "I didn't know what would happen if I said anything,
from them not believing me to, I don't know, losing jobs, everything. I was very
scared." (N.T. 11/4/19 at 58; N.T. 11/5/19 at 134-135). She took Detective
Coyle's card and went home.
During this time, Appellant obtained a temporary custody order for the
children based on his claim that the victim was going to harm herself or the
couple's children. (N.T. 11/6/19 at 105-106). He informed her of this. (N.T.
11 / 6 / 19 at 106-107). Still very emotional ·and upset, Ms. Malloy called
Detective Coyle from her car, which she parked in a cul-de~sac near her home.
(N.T. 11/4/19 at 60). Detective Coyle came to her location. She told him she
was ready to give a statement, and they went back to the police station where
the victim gave a written statement. (N.T. 11/4/19 at 60-61; 11/5/19 at 137-
Page 4 of40
139). Appellant arrived at the station at around the same time in order to turn
over a copy of the emergency custody order. (N.T. 11/6/19 at 107-108).
As a result of the subsequent investigation, on November 24, 2017 police
filed charges of simple · assault and harassment against Appellant.
!
(Montgomery County docket number CR 1010-2018). 11 On January 11, 2018,
the charges were held for court after a preliminary hearing. In the months that
followed Appellant's arrest, Appellant engaged in an extensive and pervasive
campaign, utilizing letters, text messages and phone calls, in an effort to
harass, intimidate, or otherwise coerce the victim to drop the assault charges
and/ or refrain from testifying. As a result of this behavior, police filed
additional charges against Appellant, including intimidation of a
witness/victim, criminal use of a communication facility, obstructing
administration of law, and harassment, over a span of many dates in late 2017
and 2018. These crimes are the subject of the instant case.
For conduct that occurred on December 6, 2017, Appellant was found
guilty of intimidation of a witness/victim - withhold information and criminal
use of a communication facility. On that date, the victim received a text
message on her phone from a phone number 484-206-7631, which number
was unknown to her. (N.T. 11/4/19 at 81-82). The text message said, "check
your mailbox for a very important correspondence." (N .T. 11 / 4 / 19 at Exhibit
C-6). In the mailbox was a letter that said:
11
The Commonwealth's motion to consolidate cases CR 1010-2018 and CR 2402-2018 was granted by order dated
October 31, 2019. At trial, Appellant was found not guilty of the simple assault charge." The court found Appellant
guilty of the summary harassment charge at the sentencing hearing on March 9, 2020.
Page 5 of 40
"I can't believe they made sure that was in the paper, you and the kids
must be so embarrassed. Shows they don't care about anyone but
destroying certain people. Evidently Shawns [sic] defense has a couple
videos of you attacking him. One with wine and one where you hit him a
bunch of times in the back of the head while grabbing his mouth and
neither show him fighting back. · Check your house for cameras, the
angle is downward towards a brown leather couch ... he may still be able
to watch them or record remotely. If they turned those videos over to
independent law enforcement, they may have no choice but to arrest you
to cover their ass, the videos are pretty damning. If called DO NOT TALK
TO ANYONE, USE YOUR RIGHT TO REMIAN SILENT AND DO NOT GIVE
ANY STATEMENTS OR SUBMIT TO AN INTERVIEW regarding the videos.
DO NOT COMMENT OR DENY, JUST REMAIN SILENT. And make sure
those cameras get taken down."
(N.T.11/4/19at84,ExhibitC-7).
Ms. Malloy believed this was from Appellant. She testified that upon receipt of
this letter she felt very scared because she knew Appellant had gone to wiretap
school as part of his police training and had knowledge about how to wire a
house with cameras. (N.T. 11/4/19 at 84-85). She was scared that Appellant
had been in and around her home, and that he was attempting to instill fear in
her related to the recent charges for which he was arrested. (N .T. 11 / 4 / 19 at
82-85).
Detective Michael Coyle of the New Hanover Township Police Department
investigated this text message and letter. His investigation revealed that phone
number 484-206-7631 was traced to a company by the name of Mathrawk,
LLC. Mathrawk, is a mobile application development company that sells
applications for Android and Apple phones which allows a person to send a text
message from a different phone number than their own. (N.T. 11/5/19 at
154). Detective Coyle obtained a search warrant for Mathrawk. He learned
Page 6 of 40
that the subscriber information associated with the Mathrawk phone number
484-206-7631 was phone number 610-755-2155, which is Appellant's personal
cell phone. (N.T. 11/5/19 at 154-155, Exhibit C-13). Investigation revealed
that the Mathrawk account was created on December 2, 2017, approximately
ten (10) days after the date of the incident at the Allstar Bar and eight (8) days
after Appellant was arrested on the charges related to that incident. (N.T.
11/5/19 at 155). The records indicated that on December 6, 2017 at 10:34
PM, a text message was sent to the victim's cell phone stating, "check your
mailbox for a very important correspondence." (N.T. 11/5/19 at 156). This
message was sent with Appellant's cell phone using the Mathrawk application
to appear as if it was coming from a different phone number, a number that
was unknown to the victim. Appellant admitted at trial that he created the
fake phone number to send this text message to the victim. (N.T. 11/6/19 at
217).
For conduct that occurred on January 10, 2018, Appellant was found
guilty of obstructing administration of law or other government function, and
criminal use of a communication facility. On that date, Ms. Malloy received an
e-mail at approximately 11:04 PM from an account with the name Ronald
White and the e-mail address "rjresquire@outlook.com." (N.T. 11/5/19 at 87,
Exhibit C-9) (hereinafter "Ronald White e-mail"). This name and e-mail address
were unknown to the victim. (N.T. 11/4/19 at 88). The victim received this e-
mail on January 10, 2018, the day prior to the preliminary hearing for the
assault case related to the incident at the Allstar Bar. The e-mail address
Page 7 of40
contained the word "esquire," appearing as if the correspondence was sent from
an attorney. (N.T. 11/4/19 at 88). While this e-mail purports to be from an
attorney, the e-mail does not contain a name, phone number, or address at the
bottom of the e-mail as professional e-mails typically do. (N.T. 11 / 4 / 19 at 91).
It stated:
"Ms. Malloy, with the pending preliminary hearing, I am sure you are
scared, as I am certain Shawn is as well. It's a shame the police have
pushed this far in order to get him, leaving you without any say. They do
not care who is embarrassed. It is a shame this process may take a year,
involve testifying at the preliminary hearing, a habeas corpus hearing,
suppression hearings, and the ultimate jury trial. Win or lose, both you
and Shawn's name will be dragged through the mud, all details[,] your
sex life over the years, all personal stuff will now be public record, ·and
your children may be called to testify solely because the Police really
wants him bad. There actually is a simple way to end it all. It would
stop the criminal process, end all criminal proceedings, and most
importantly protect you from any Police harassment or intimidation.
This is in no way an attempt to coerce you or push you in any direction,
but I don't think anyone has given you any options or told you the truth
about all the process will intail [sic]. Let[']s face it, they don't care about
Shawn, they don't care about you or your kids, and it's not like Shawn is
going to be honest with you about what his defense is going to be, and he
probably .gave his lawyer full power. There is an option, a simple
solution if you have the strength or actual independence to do it. At the
preliminary hearing you will be prepped on questions and answers,
simply refusing to testify will not help, they can and will proceed without
you. If you choose to do so, all criminal stuff could end. Let them prep
you, don't say anything, then, when you take the stand, at the very first
question, you can make this statement as your answer: 'I have been
pushed into this and bullied by the Police without any say. After
consulting with a private attorney about the truth of everything that
happened, I am utilizing my 5 th Amendment right and refusing to answer
any questions. I will not cooperate any further in any proceedings, or
with the authorities.' Then remain silent regardless of what is asked.
This simple statement when made exactly as written, completely ends
the criminal case and protects you from any repercussions. It
acknowledges you are doing so knowingly. Not attempting to influence
you, or even asking you to do this, its [sic] just an option if you really
want the criminal to end immediately."
(ExhibitC-9;N.T.11/4/19at88-90).
Page 8 of40
Further investigation revealed that this e-mail originated at a known
residence of Appellant. Detective Coyle obtained a search warrant for Microsoft,,:
for the e-mail account on the correspondence. The rjresquire@outlook.com
account was created on January 10, 2018 at 10:55 PM. Nine (9) minutes later,
at 11:04 PM, the message was sent to the victim (N.T. 11/5/19 at 161). The IP
address associated with the e-mail was traced to Verizon Business · (N.T.
11/5/19 at 162-163). As a result, Detective Coyle issued a search warrant for
Verizon Business. The search revealed that the e-mail account and the
message that was sent the victim were created at the address where Appellant
resided at the time. (N.T 11/5/19 at 163-164). Appellant's known e-mail
address at the time was srmalloy@msn.com. (N.T. 11/5/19 at 170). The
Detective learned through his investigation that the Ronald White e-mail and
multiple "srmalloy'' e-mails were sent from identical IP addresses. (N.T.
11/5/ 19 at 172).
Appellant was also found guilty of six harassment charges for conduct .
that occurred on May 1, 2018 and May 2, 2018. This conduct consisted of
approximately two hundred (200) repeated phone calls from Appellant's
personal cell phone (610-755-2155) to numbers owned by the victim, from both
blocked and unblocked numbers, beginning on May 1st and continuing through
the night and into the next day. (N.T. 11/4/19 at 100; N.T. 11/5/19 at 179-
..;r;-i_ ·,i;
183). Some of the calls employed the *67 feature to block the caller ID and ·;o,;,··
appear as if the call was coming from an unknown or blocked number. (N.T.
Page 9 of 40
11/5/19 at 179-180). Appellant admitted to making these phone calls to the
victim on these dates. ( 11 / 6 / 19 at 188-190).
Issues
Appellant raises eleven issues on appeal. They are set forth in his
concise statement as follows:
"1. THE COURT ERRED BY FAILING TO PERMIT COUNSEL FOR
APPELLANT TO PROPERLY CROSS-EXAMINE COMPLAINING WITNESS
AT SENTENCING CLAIMING HER TESTIMONY WOULD BE USED AS AN
"IMPACT STATEMENT", RATHER THAN AS FACTUAL TESTIMONY. THE
COURT THEN TOOK HER TESTIMONY AS FACTUALLY TRUE IN
RENDERING THE SENTENCE IN THE MATTER WHILE PREVENTING
APPELLANT FROM SHOWING THAT THE ITEMS RELIED UPON BY THE
COURT WERE FACTUALLY UNTRUE. AS THE SENTENCE WAS
RENDERED BASED ON FALSE INFORMATION, IT IS FACIALLY INVALID.
THE COURT THEREFORE ERRED IN HALTING APPELLANT'S CROSS
EXAMINATION OF THE ONLY COMMONWEALTH WITNESS AT
SENTENCING. FURTHERMORE, THIS AMOUNTED TO A DENIAL OF
APPELLANT'S CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES.
2. THE COURT ERRED IN CONSIDERING FACTS FOR SENTENCING
THAT WERE NOT IN EVIDENCE OR SIMPLY INCORRECT. MORE
SPECIFICALLY, BUT NOT LIMITED TO THE ENUMERATED, THE COURT
EXPLICITLY CONSIDERED THE FOLLOWING:
A. THE COURT CITED TO THE TESTIMONY OF COMPLAINING
WITNESS, CLAUDIA MALLOY, AT SENTENCING, SPECIFICALLY
STATING THAT THE APPELLANT CONTINUED HARASSMENT AND
CONTACT WITH HER IN THE WEEKS LEADING UP TO THE
HEARING (I.E. SPYING, FOLLOWING AND COMMUNICATION
THROUGH THE CHILDREN). CROSS EXAMINATION WOULD
HAVE SHOWN THIS TO BE DEMONSTRABLY UNTRUE. GIVEN
THAT THE COURT RELIED ON THE FACTUAL ASSERTIONS OF
CLAUDIA, THE COURT ERRED BOTH IN ITS RULING HALTING
THE CROSS EXAMINATION AND, SUBSEQUENTLY RELYING ON
THE EVIDENCE. THERE WAS NO EVIDENCE SUPPORTING
CLAUDIA'S VERSION OF EVENTS THE APPELLANT WAS NOT
ABLE TO CROSS-EXAMINE CLAUDIA TO EXPLORE THE
VERACITY OF HER CLAIMS AND THE COURT CONSIDERED
SEVERAL OF HER FACTUAL ASSERTIONS AS TRUE WHEN
APPELLANT'S COUNSEL COULD HAVE SHOWN THESE TO BE
UNTRUE IF GIVEN THE OPPORTUNITY TO FULLY CROSS
EXAMINE HER.
Page 10 of 40
B. CLAUDIA FURHTER CLAIMED THAT APPELLANT HAD BEEN
TRYING TO CONTACT HER THROUGHT THE CHILDREN,
OFFERING TO DO NICE THINGS FOR THE CHILDREN OR
CLAUDIA IF SHE WOULD ALLOW APPELLANT BACK IN HER LIFE.
COUNSEL WAS PREPARED TO OFFER A SUBSTANTIVE CROSS
EXAMINATION TO THIS POINT, WANTING CLAUDIA TO TESTIFY
ABOUT THE TIMES THAT SHE HAD HEARD EACH OF THESE
STATEMENT (AS CLAUDIA ONLY PROVIDED A TIME FRAME FOR
ONE OF THE STATEMENTS). COUNSEL WAS IN POSSESSION OF
PHONE RECORDS THAT HE DESIRED TO CROSS EXAMINE
CLAUDIA ON WHICH DEMONSTRATED SHE HAD REACHED OUT
TO THE APPELLANT DURING THIS TIME, VIA PHONE.
FURHTERMORE, DEPENDING ON THE TIME FRAME OFFERED
BY CLAUDIA, APPELLANT'S COUNSEL WAS PREPARED TO
OFFER TESTIMONY FROM OTHER WITNESSES THAT
DEMONSTRATED THAT CLAUDIA WAS LYING TO THE COURT.
C. AS IT PERTAINS TO CLAUDIA'S REPEATED ASSERTION THAT
SHE WANTED NOTHING TO DO WITH THE APPELLANT AFTER
THE FIRST INCIDENT, WHICH WAS PART OF THE BASIS OF HER
STATEMENT THAT THE APPELLANT HAD REPEATEDLY
HARASSED AND TORMENTED HER, COUNSEL WAS PREPARED
TO CROSS CLAUDIA ON THE NUMEROUS EXAMPLES OF
CONTACT INITIATED BY HER SINCE THEN. THE DISCOVERY IS
REPLETE WITH DOCUMENTS AND EVIDENCE OF CLAUDIA
REACHING OUT TO AND CONTACTING THE APPELLANT.
APPELLANT'S COUNSEL WAS HALTED FROM CROSS EXAMINING
CLAUDIA ON HER FACTUAL ASSERTIONS DUE TO THE COURT'S
RULING THAT IT WOULD NOT BE CONSIDERING THE
ASSERTIONS FACTUALLY, BUT RATHER AS VICTIM IMPACT.
DESPITE THAT RULING, THE COURT DID, IN FACT, CONSIDER
THE ABOVE STATEMENTS AS FACT, AND CITED TO THEM AS
REASONS SUPPORTING A LENGTHY STATE PRISON SENTENCE
FOR A FIRST-TIME OFFENDER.
D. THE COURT, IN SUPPORT OF ITS RULING, STATED THAT THE
LETTERS FROM APPELLANT IN QUESTION WERE SENT DAYS
BEFORE COURT HEARINGS, BOTH AT THE MAGISTERIAL
DISTRICT JUSTICE LEVEL AND THE COURT OF COMMON
PLEASE LEVEL, AND THIS SUPPORTED THE IMPOSITION OF A
LENGTHY SENTENCE. THIS, RESPECTFULLY, WAS NOT
SUPPORTED BY THE EVIDENCE ADMITTED IN THE MATTER.
WHILE ONE LETTER FOR WHICH APPELLANT WAS CONVICTED
TOOK PLACE CLOSE IN TIME TO THE PRELIMINARY HEARING,
THE APPELLANT WAS NOT CONVICTED OF ANY LETTER CLOSE
Page 11 of 40
IN PROXIMITY TO ANY COMMON PLEAS HEARING. IN FACT,
NONE OF THE LETTERS THAT THE APPELLANT WAS CHARGED
WITH-AND ACQUITTED OF-WERE TRANSMITTED IN PROXIMITY
TO A HEARING BEFORE THE COMMON PLEAS COURT. IT WAS
ERROR TO RELY ON THIS ISSUE ..
E. THE COURT ALSO RELIED ON THE FACT THAT APPELLANT
WAS A POLICE OFFICER FOR A NUMBER OF YEARS AND THE
COMMONWEALTH DID NOT PRESENT A SINGLE PIECE OF
EVIDENCE THAT DEMONSTRATED THE APPELLANT USED HIS
CAPACITY AS A POLICE OFFICER IN ANY WAY, SHAPE OR FORM
IN THIS CASE, OR THAT ANY OF THE FACTS OF THIS MATTER
TOOK PLACE WHILE THE APPELLANT WAS WORKING IN HIS
ROLE AS A POLICE OFFICER. MOREVOVER, THE APPELLANT
WAS NOT A POLICE OFFICER AT THE TIME THAT THE LETTER
FOR WHICH HE WAS CONVICTED WAS SENT. SHORTLY AFTER
THE INCIDENT THE APPELLANT WAS TERMINATED AS A
RESULT OF HIS ARREST FOR SIMPLE ASSAULT, THUS, AT THE
TIME THE LETTER WAS SENT HE WAS NOT EMPLOYED AS A
POLICE OFFICER. AS SUCH, IT IS RESPECTFULLY SUGGESTED
THAT THE COURT WRONGLY CONSIDERED THE APPELLANT'S
EMPLOYMENT AS A POLICE OFFICER TO SUPPORT THE
IMPOSITION OF A SIGNIFICANT STATE SENTENCE.
F. THE COURT CITED TO THE APPELLANT ,HAD SENDING
MULTIPLE LETTERS TO CLAUDIA AND THE COURT USED THIS
FACT TO SUPPORT THE IMPOSITION OF CONSECUTIVE, TOP OF
THE STANDARD RANGE SENTENCES. THE APPELLANT WAS
ACQUITTED OF ALL OF THE CHARGES RELATED TO EVERY
OTHER EMAIL/LETTER, SAVE ONE. THE COURT ERRED WHEN
CONSIDERING EVIDENCE, AND RELYING ON THESE TO
SUPPORT THE IMPOSITION OF A SIGNIFICANT STATE
SENTENCE.
3. THE COURT ERRED BY SENTENCING THE APPELLANT IN THE TOP
RANGE OF THE SENTENCING GUIDELINES WHEN THERE WAS NO
RELIABLE EVIDENCE OF RECORD JUSTIFYING SUCH A SENTENCE AS
AFORESAID.
4. THE TRIAL JUDGE ERRED IN CONVICTING THE APPELLANT FOR
CHARGE OF SUMMARY HARASSMENT WHEN THERE WAS NO
EVIDENCE OF HARASSMENT BY THE APPELLANT AND THE JURY
ACQUITTED THE APPELLANT OF ALL CHARGES RELATED TO THE
INCIDENT AT THE ALL-STAR BAR.
Page 12 of 40
5. THE COURT ERRED IN NOT IMPOSING SANCTIONS FOR THE
COMPLAINING WITNESS'S THEFT OF THE ATTORNEY CLIENT NOTES
BELONGING TO THE APPELLANT, AS WELL AS FOR THE
COMMONWEALTH'S IMPERMISSIBLE RETENTION OF SAID
PAPERWORK AND FAILURE TO PROMPTLY NOTIFY THE APPELLANT
AND HIS COUNSEL OF THE COMMONWEALTH'S POSSESSION OF SAID
NOTES.
6. AFTER THE SENTENCING, APPELLANT HAS LEARNED OF THE
EXISTENCE OF STATEMENTS OF THE COMPLAINING WITNESS, MADE
TO CONSHOHOCKEN BOROUGH POLICE DEPARTMENT AS PART OF
THE LABOR INVESTIGATION, WHICH THE COMMONWEALTH FAILED
TO PRODUCE TO THE APPELLANT AND HIS COUNSEL.
7. THE COURT FAILED TO TAKE PROPER ACCOUNT OF THE
COMPLAINING WITNESS'S DEMONSTRATED COMPLICITY IN THE
ACTIONS THAT WERE AT THE HEART OF THE OBSTRUCTION AND
HARASSMENT CONVICTIONS.
8. THE COMMONWEALTH FAILED TO PROVIDE SUFFICIENT
EVIDENCE TO SUSTAIN THE CHARGE OF INTIMIDATION OF
WITNESSES AS THE EVIDENCE - AND THE QUESTIONS ASKED BY
THE JURY - CLEARLY DEMONSTRATED THE SHE WAS A WILLING
PARTICIPANT IN THE CREATION OF SAID COMMUNICATIONS, AS
WELL AS SOLICITING SAID COMMUNICATIONS.
9. THE COMMONWEALTH FAILED TO PROVIDE SUFFICIENT
EVIDENCE TO SUSTAIN THE CHARGE OF OBSTRUCTION OF JUSTICE
AS THE EVIDENCE - AND THE QUESTIONS ASKED BY THE JURY -
CLEARLY DEMONSTRATED THAT SHE WAS A WILLING PARTICIPANT
IN THE CREATION OF SAID COMMUNICATIONS, AS WELL AS
SOLICITING SAID COMMUNICATIONS.
10. THE COMMONWEALTH FAILED TO PROVIDE SUFFICIENT
EVIDENCE TO SUSTAIN THE CHARGES OF CRIMINAL USE OF A
COMMUNICATION FACILITY AS THE EVIDENCE - AND THE
QUESTIONS ASKED BY THE JURY - CLEARLY DEMONSTRATED THAT
SHE WAS A WILLING PARTICIPANT IN THE CREATION OF SAID
COMMUNICATIONS, AS WELL AS SOLICITING SAID
COMMUNICATIONS.
11. THE COMMONWEALTH FAILED TO PROVIDE SUFFICIENT
EVIDENCE TO SUSTAIN THE CHARGE OF HARASSMENT AS THE
EVIDENCE - AND THE QUESTIONS ASKED BY THE JURY - CLEARLY
DEMONSTRATED THAT SHE WAS A WILLING PARTICIPANT IN THE
COMMUNICATIONS AND SAID COMMUNICATIONS REPRESENTED THE.
Page 13 of40
NORMAL BACK AND FORTH BETWEEN APPELLANT AND
COMPLAINING WITNESS."
Discussion
Appellant's first claim of trial court error is that the court erred in failing
to permit defense counsel to properly cross examine the victim in this case
related to her victim impact statement at the sentencing hearing. Appellant
claims that the court considered the victim impact statement as a factual
document and relied on those facts in fashioning Appellant's sentence. As a
result, Appellant claims the sentence is based on false information and is
facially invalid. Further, Appellant claims that this amounted to a denial of
Appellant's constitutional right to confront the witness. These claims have no
merit.
The standard employed when rev1ewmg the discretionary aspects of
sentencing is very narrow. Commonwealth v. King, 182 A.3d 449, .455 (Pa.
Super. 2018). A sentence will be reversed only if the sentencing court abused
its discretion or committed an error of law. Id. Merely erring in judgment is
insufficient to constitute abuse of discretion. Id. 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. Conte, 198 A.3<;1 1169, 1179 (Pa. Super. 2018) (appeal
denied, 206 A.3d 1029 (Pa. 2019).
The admissibility of evidence at sentencing, including victim impact
evidence, rests with the sound discretion of the trial court. King, 182 A.3d at
Page 14 of 40
455. The conduct of a sentencing hearing differs from the trial of the case. Id.To determine an appropriate penalty, the sentencing court may consider any
evidence it deems relevant. Id. While due process applies, the sentencing
court is neither bound by the same rules of evidence nor criminal procedure as
it is in a criminal trial. Id.The purpose of a victim impact statement is to allow victims of crime to
inform the court of how the crime impacted their lives. In 1998, our General
Assembly promulgated a Bill of Rights for crime victims which provtdes them
the right, "to have opportunity to offer prior comment on the sentencing of a
defendant ... to include the submission of a written and oral victim impact
statement detailing the physical, psychological and economic effects of the
crime on the victim and the victim's family." Id. (citing 18 P.S. §11.201(5)).
The Supreme Court of the United States stated that the purpose of victim
impact evidence is to show the victim's uniqueness as a human being and to
illustrate that a particular individual's loss has a distinct effect on society. Id.
(citing Payne v. Tennessee, 501 U.S. 808, 824, 111 S.Ct. 2597, 117 L.Ed.2d
720 (1991)). Similarly, in Pennsylvania, this Court has emphasized that crime
victims in the Commonwealth have the "right to breathe life with all its emotion
into their victim impact statements." Id. In other words, the purpose of victim
impact statements is to personalize the crime and to illustrate the human
effects of it. Id.During a sentencing proceeding, due process allows a court to consider
any information, even if it would not be admissible under the evidentiary rules,
Page 15 of 40
provided that the evidence has sufficient indicia of reliability, the court makes
explicit findings of fact as to credibility, and the defendant has an opportunity
to rebut the evidence. Commonwealth v. Eldred, 207 A.3d 404,
, 408 (Pa.
Super. 2019) (citing United States v. DeAngelis, 243 F. App'x 471, 474 (11th
Cir. 2007)). In Pennsylvania, due process does not include the ability to cross-
examine adverse witnesses post-trial because the Sixth Amendment to the
United States Constitution "does not apply in sentencing hearings." Id. (citing
Commonwealth v. Wantz, 84 A.3d 324, 337 (Pa. Super. 2014) (quoting
United States v. Stone, 432 F.3d 651, 654 (6th Cir. 2005)). A defendant has
no constitutional right to cross-examine the author of a victim impact
statement. Id.At sentencing, the victim read a letter that she prepared as a victim
impact statement. The victim attested to the physical, psychological, and
economic effects these crimes had on her and her children. (N.T. Sentencing
3/9/2020 at 12-21). She attested to the fear she felt, and the pattern abuse
she endured prior to and after the assault incident. (N.T. Sentencing 3/9/2020
at 19-21). She attested to the fear she continues to feel even after the trial has
ended. (N.T. Sentencing 3/9/2020 at 19-21). Defense counsel cross examined
her. Once defense counsel started to ask the victim questions that tested the
veracity of the facts, the Commonwealth objected, and the court sustained the
objection. (N.T .. Sentencing 3/9/2020 at 24).
At the sentencing hearing, the court first considered the factors listed in
42 Pa.C.S,A. § 9722 to determine whether a probationary sentence was
Page 16 of 40
appropriate in this case, as Appellant requested, (N.T. Sentencing 3/9/2020 at
104-105). The court determined a probationary sentence was not appropriate.
Next, the court considered the victim impact statement stating, "I've considered
the victim impact statement carefully, and not as Mr. Schadler [defense
counsel] might suggest as a factual document, but rather as a document that
talks to me about the impact of Mr. Malloy's conduct on his estranged wife."
(N.T. Sentencing 3/9/2020 at 106). In considering the victim impact statement
the court stated:
"She said to me that she was strangled with fear, and he controlled her,
and he often told her that he would never get caught, that he knew the
system.· He would brag about all the cops he knew, that judges, the
lawyers, and it was in that context with that knowledge and those
statements when the very first letter came in the mail on the eve of the
preliminary hearing, she knew it was real, and she knew she had
something to fear. 12 Ms. Malloy has indicated to me that for two years
she has lived in a constant state of fear. Having the PFA was not enough
to make her feel safe. This police officer knew exactly what to say to
keep her living in fear, and she has lived that fear, which this Court finds
to be real every day .... Mrs. Malloy says, 'Never will it end' and is
frustrated by the fact that the trial did not seem to reveal the truth or
justice. It will end. It ends today. It will end with this sentencing,
because that is this Court's responsibility to do what is right, to uphold
the law, and to bring justice to this unjust situation. No on.e, no one is
above the law, especially not someone who was sworn to uphold it, and I
am entrusted with the responsibility to enforce it."
(N.T. Sentencing 3/9/2020 at 106-107).
Contrary to Appellant's claim, the court specifically stated that it did not
consider the victim impact statement as a factual document. The court's
sentence was not based on false information, as appellant claims. In imposing
12
The court recognizes that the very first letter to which Ms. Malloy refers in her victim impact statement appears to
be the letter from December 6, 2017 (previously described in this opinion) that was in her mailbox and referenced
surveillance cameras. The correspondence Ms. Malloy received on the eve of the preliminary hearing, January 10,
2018, was the "Ronald White e-mail."
•
Page 17 of40
sentence, the court is guided by the general principle that the sentence
imposed and confinement imposed should be consistent with the protection of
the public, with the gravity of the offense as it related to the impact of the life of
the victim and on the community, and the rehabilitative needs of the
defendant. In this case, the court considered a great deal of information
including, all of the evidence presented during the course of the three-day trial
of this case, all of the information presented in court at sentencing, the
witnesses, the victim impact testimony, and the witnesses presented by the
defense, along with Appellant's testimony at sentencing. In addition, the court
considered the presentence investigation in detail, along with the PP!
evaluation and the psychological evaluation. (N.T. Sentencing 3/9/2020 at
103). When a sentencing court is fully informed by the presentence report, "its
discretion should not be disturbed." See King, 182 A.3d at 459.
Appellant's constitutional claim related. to his right to confront witnesses
has no merit. A defendant has no constitutional right to cross-examine the
author of a victim impact statement. See Eldred, 207 A.3d at 408. In this case,
Appellant was permitted to cross examine the victim at sentencing. The
Commonwealth's objection was sustained when defense counsel tested the
veracity of the facts laid out in her victim impact statement. During the four-
day jury trial, defense conducted a comprehensive cross examination of the
victim. In addition, Appellant testified at trial. At sentencing, Appellant
presented six (6) character witnesses to testify on his behalf, and Appellant
testified himself. The character witnesses discussed topics ranging from
Page 18 of 40
Appellant's relationship with the victim, personal habits, any potential for
substance abuse, Appellant's relationship with his children and his work
history. A sentencing hearing is not designed to allow counsel a second
opportunity to reexamine the credibility of witnesses. The court exercised
proper discretion in its rulings related to the cross examination of the victim at
sentencing during her_victim impact statement.
Next, Appellant claims that the court erred m considering facts for
sentencing that were not in evidence or simply incorrect. Appellant set forth
six examples of these facts, and the court will address each one. First,
Appellant claims that at sentencing the court cited to testimony of the victim
"specifically stating the Appellant continued harassment and contact with her
m the weeks leading up to the hearing (i.e. spymg, following and
communication through the children)." (Concise Statement #2a). Similar to
his first claim of error already discussed, Appellant asserts in his concise
statement that he should have been able to cross examine the witness in order
to show "this to be demonstrably untrue." Appellant also claims that the court
considered these factual assertions as true.
The court already discussed the reasons for its rulings related to the
cross examination of the victim in addressing Appellant's first claim of error.
In addition, Appellant does not provide a specific cite to the sentencing
transcript where the court considered factual assertions related to "spying,
following and communication through the children" in the weeks leading up to
the hearing (which is court takes to mean the sentencing hearing). The court
Page 19 of 40
explained on the record the reasons for its sentence. There is no indication
that in imposing sentence upon Appellant the court considered any facts
related to spying or communicating through the children that were untrue, as
Appellant claims. As a result, this claim of error has no merit.
Second, Appellant claims that the victim was lying when she claimed
during her victim impact statement that Appellant had been trying to contact
her through the children, offering to do nice things for the children or her if she
would allow Appellant back in her life. Counsel claims he was prepared to offer
substantive cross examination to this point and testimony from other witnesses
that demonstrated Claudia was lying to the court. As previously discussed,
Appellant was not prevented from effectively cross-examining the victim. There
is no indication that in imposing sentence upon Appellant the court considered
any facts that were "not in evidence or simply incorrect" as Appellant claims in
· :,his concise statement. As a result, this claim of error has no merit.
Third, Appellant claims that Ms. Malloy repeatedly asserted that "she
wanted nothing to do with the Appellant after the first incident, which was part
of the basis of her statement that the Appellant had repeatedly harassed and
tormented her." (See Concise Statement #2c). Appellant claims that counsel
was prepared to cross examine Ms. Malloy on numerous examples of contact
initiated by her since then. Appellant further claims that the court "did, in
fact, consider the above statements as fact, and cited these facts as reasons
supporting a lengthy state prison sentence." Appellant fails provide a cite to
. the record evidencing this averment. The court specifically stated that it did
•
Page 20 of 40
not consider Ms. Malloy's victim impact statement as a factual document. (N.T.
Sentencing 3/9/2020 at 106). There is no indication in the record that these
facts formed any basis in determining the sentence imposed upon Appellant.
This claim is without merit.
Fourth, Appellant claims that, in support of its ruling, the court stated
that the letters from Appellant in question were sent in the days before court
hearings, both at the magisterial district justice level and the court of common
pleas level. Appellant claims that he was not convicted of any crimes related to
a letter sent in close proximity to any common pleas court hearing.
The conduct for which Appellant was sentenced consists of two
correspondence and an extended period of repeated phone calls. The two
correspondence are: (1) on December 6, 2017, a text message from Appellant,
sent from a phone number unknown to the victim, directing her to retrieve a
letter in her mailbox authored and sent by Appellant; and (2) on January 10,
2018, an e-mail from Appellant purporting to be from an attorney named
Ronald White, sent the night before the preliminary hearing. The repeated
phone calls were on May 1 and May 2, 2018. 13
For the correspondence on December 6, 2017, Appellant established a
phone number through the Mathrawk application which allows a person to
send a text message from a different phone number than their own. Appellant
13
ln imposing sentence, the court stated, "Mr. Malloy's actions correspond in each case to an event that was
happening before this court and the magisterial district courts here in Montgomery County." (N.T. Sentencing
3/9/2020 at 105). However, there was no testimony that the repeated phone calls on May 1, 2018 and May 2, 2018,
which formed the basis for the harassment charges, corresponded to prnceedings in court. The testimony presented
was that they were related to an incident involving Appellant's and Ms. Malloy's children. (N.T. 11/6/2019 at 188-
190).
Page 21 of 40
<::reated the Mathrawk account on December 2, 2017, approximately ten (10)
. days after the date of the incident at the Allstar Bar and eight (8) days after
Appellant was arrested on charges related to that incident. (11/5/19 at 155).
Four days later, Appellant sent· the text message to the victim using the
Mathrawk application, directing her to check her mailbox, where she found a .
letter (set forth above in the factual and procedural history section). This letter
was a specific response to the assault case related to the incident at the Allstar
Bar that was filed approximately eight (8) days earlier. Only after he was
arrested for assault did he decide to intimidate a witness in that case, the
victim. The letter was deceitful, precise and methodical. It not only instilled
fear in the victim by coercing and intimidating her to withhold information in
order to avoid her own arrest, but also threatened her safety and privacy in
advising her that surveillance cameras were surreptitiously placed within her
home. Although this letter did not specifically precede any hearing in the court
of common pleas, it was filed as a direct response to charges that were filed
against Appellant in the court of common pleas.
For the correspondence on January 10, 2018, this e-mail was sent the
night preceding the preliminary hearing in this matter and was specifically sent
in an attempt to obstruct those proceedings. 14 The e-mail was deceitful in that
it was created by Appellant, but appeared to be from an attorney attempting to
14 In imposing sentence, the court stated, "He would brag about all the cops he knew, the judges, the lawyers, and it
was in that context with that knowledge and those statements when the very first letter came in the mail on the eve
of the preliminary hearing, she knew it was real, she knew she had something to fear." (N.T. Sentencing 3/9/2020 at
I 06). There appears to be some confusion in the sentencing record as to which correspondence coincides with
which event. The very first letter that came in the mail was the letter that referenced surveillance cameras in the
victim's home on December 6, 2017. The correspondence that was sent the night before the preliminary hearing
was the "Ronald White e-mail" on January io, 2018.
Page 22 of40
advise the victim that the best course of action for her is to withhold
information from the judge. By sending this e-mail, Appellant attempted to
instill fear in the victim about what the upcoming legal proceeding would
entail, hoping that this might coerce her to drop the charges. These facts were
;supported by the evidence admitted at trial. The court exercised proper
.discretion in considering the context and timing of both the letter and the e-
mail as one factor in support of the sentence imposed upon Appellant.
The fifth alleged factual error Appellant claims the court improperly
relied upon in imposing a state sentence is the fact that Appellant was a police
officer. Appellant claims that there was no evidence presented that Appellant
used his capacity as a police officer in any way in this case and that no act
took place while Appellant was serving in his role as a police officer.
Pennsylvania law requires the court to consider the particular
circumstances of the offense and the character of the defendant in fashioning a
sentence. See 42 Pa.C.S.A. §9721(b). In imposi11g sentence, as previously
discussed, the court considered a great deal of information, including the
Appellant's background and numerous pre-sentence evaluations. In
sentencing a defendant, the court is obligated to consider the personal
characteristics of a defendant. Due to his occupation as a police officer,
Appellant had knowledge, experience, training and an understanding of how
the judicial system operates. He knew or should have known that his conduct
could wreak havoc on our system of justice. He employed this knowledge in
carrying out the crimes he committed. The court exercised proper discretion in
Page 23 of40
considering Appellant's employment as a police officer as a factor to support
the sentence imposed.
Lastly, Appellant contends that the court "cited to the Appellant had
sending [sic] multiple letters to Claudia and the Court used this fact to support
the imposition of consecutive, top of the standard range sentences." (Concise
Statement #2f). Appellant claims that he was acquitted of all the charges
related to every other email/letter, save one, and that the court erred in .
considering this evidence and relying on these to support the imposition of a
significant state sentence. It is important to clarify that Appellant was found
guilty of conduct related to one letter and one e-mail, each sent on different
dates, and discussed at length earlier in this opinion. This claim is entirely
without merit.
The next claim of error Appellant brings on appeal is that the court erred
by sentencing Appellant in the top range of the sentencing guidelines, claiming
that there was no reliable evidence to justify such a sentence. Appellant takes
issue with the discretionary aspects of his sentence. It is well settled that in
Pennsylvania the trial judge is given substantial deference in fashioning the
appropriate sentence. See Conte, 198 A.3d at 1176. As already discussed,
· the court considered a number of factors in fashioning its sentence. The court
sentenced Appellant to an aggregate term of imprisonment of not less than
twenty-four (24) months nor more than seventy-two (72) months. Appellant
was RRRI eligible. The court was precise in fashioning its sentence. The court
imposed three consecutive sentences. For the crime of intimidation of a
Page 24 of40
witness/victim - withholding information (December 6, 2017), 15 Appellant was
sentenced to a term of imprisonment for not less than fourteen (14) months nor
more than thirty-six (36) months. His RRRI minimum was identified at 10½
months. This sentence is in the standard range of the sentencing guidelines.
For the two counts of criminal use of a communication facility (Decemqer 6,
2017 and January 10, 2018), 16 the court ran those two counts concurrent to
, I, . ~p~; c,-.,.
each other, but consecutive to the sentence for intimidation of a
witness/victim, and imposed a sentence of not less than nine (9) months nor
more than twenty-four (24) months. His RRRI minimum was identified at 6¾
months. This sentence is in the standard range of the sentencing guidelines.
I
For the crime of obstruction of administration of law or other government
function (January 10, 2018) 17 , Appellant was sentenced to a term of
imprisonment for not less than one (1) month nor more than twelve· (12)
months to run consecutive to the sentence imposed for criminal use of a
communication facility. His RRRI minimum was identified at ¾ months.
Lastly, the court sentenced Appellant to one (1) year of probation on six
misdemearior harassment charges (3 charges for May 1, 2018 and 3 charges
for May 2, 2018).
As discussed above, the court stated its reasons for the sentence on the
record. Appellant was convicted of intimidating the victim m an attempt to
15
18 Pa.C.S.A. § 4952(a)(3) (F3).
16
18 Pa.C.S.A. § 7512(a) (F3).
17
18 Pa.C.S.A. § 5101 (M2).
Page 25 of 40
scuttle the prosecution of a domestic violence assault of the victim and for
obstructing justice in doing so. The court determined that this conduct:
"completely undermined the integrity of the justice system that he was
sworn to uphold. Engaging in conduct with the knowledge and intent
that his conduct would obstruct, impede, impair, prevent, or interfere
with the administration of justice. He intimidated or attempted to
intimidate a victim of a crime, and he intimidated her to withhold
testimony or information from law enforcement, a prosecuting official, or
a judge. That is the core of our justice system, that witnesses can
cooperate with law enforcement, that they can do so safely, that they can
do so without fear or reprisal or fear of being harmed."
(N.T. Sentencing 3/9/2020 at 104-105).
The court's sentence was within the guidelines for every count. The court
based its sentence on the required factors to consider when imposing sentence,
and the sentence was supported by the facts in this case. The court's sentence
was not manifestly unreasonable. The court exercised proper discretion in
imposing sentence upon Appellant, and Appellant's claim of error is without
merit.
Appellant's fourth claim of error is that the trial judge erred in convicting
Appellant for the charge of summary harassment, 18 for the incident at the
Allstar Bar at docket number 1010-2018. Following trial, the court deferred its·
verdict on the summary harassment charge until the sentencing on the matter
at docket number 2402-2019. At sentencing, the court found Appellant guilty
of the harassment charge and ordered that he pay costs and no further
penalty.
18
18 Pa.C.S.A. § 2709(a)(l).
Page 26 of 40
The standard applied 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 evide_nce to enable the fact-finder to find:
every element of the crime beyond a reasonable doubt. E.g. Commonwealth v.
Sipps, 225 A.3d 1110, 1113 (Pa. Super. 2019),appeal denied, No. 44 MAL 2020,
2020 WL 3529427 (Pa. June 30, 2020).
A person commits the crime of harassment when, with intent to harass,
annoy or alarm another, the person strikes, shoves, kicks or otherwise subjects
the other person to physical contact, or attempts or threatens to do the same.
18 Pa.C.S.A. § 2709(a)(l). The evidence supported the verdict of guilt for this
charge. During Appellant and the victim's argument in his parked vehicle,
Appellant punched the victim in the mouth, specifically her lower left lip. (N.T.
11 / 4 / 19 at 4 7-48). The owner of the bar, Sean Scully, corroborated her
testimony when he stated that he saw the victim inside the bar after the
incident noticed a red mark on her lip. (N.T. 11/ 5/ 19 at 111). The next day,
the victim went to the New Hanover Township Police Department and
encountered Detective Coyle. She indicated to him that she wished to talk to
an officer related to a domestic incident. Detective Coyle testified that when
the victim came into the station, he noticed that her lip was swollen and
pointed to his own lip asking her if that was the reason she wished to speak to
someone. (N.T. 11/5/19 at 134-135). In addition, Detective Coyle identified
Ms. Malloy's swollen lower left lip in a photograph. (N.T. 11/ 5/ 19 at 149-150,
Exhibit C-37, C-38). The evidence was sufficient to prove that Appellant struck
Page 27 of40
or otherwise subjected Ms. Malloy to physical contact in order to sustain the
charge of summary harassment. The court appropriately determined, beyond a
reasonable doubt, that Appellant was guilty of this charge.
Appellant's fifth claim of error is that the court erred in not imposing
sanctions for the complaining witness's theft of the attorney client notes
belonging to the Appellant, as well as the Commonwealth's impermissible
retention of said paperwork and failure to promptly notify the Appellant and his
counsel of the Commonwealth's possession of said notes.
Appellant filed a motion for sanctions in this matter prior to the start of
trial on October 30, 2019. The court denied the motion for sanctions following
a hearing on October 31, 2019. The factual basis related to the motion for
sanctions follows. During a custody exchange prior to the start of the trial
' .
while this case was pending, the victim obtained a notebook that belonged to
Appellant. When she opened the notebook, she found that it had Appellant's
handwritten notes related to the witness list in this case. (N.T. Pre-trial
Motions 10/31/ 19 at 6; N.T. 11/4/ 19 at 66-67). Ms. Malloy took photographs
of the notebook and its content. (N.T. 11 /4 / 19 at 68). She contacted the
assistant district attorney who was handling the case at the time, and the
assistant district attorney told her not to turn over any of these materials to the
commonwealth. The assistant district attorney contacted defense counsel to
disclose this information, and defense counsel "accepted these representations
and moved on." (N.T. Pre-trial Motions 10/31/19 at 5-6). Closer to the time of
trial and upon review of the discovery, the assistant district attorney who was
Page 28 of 40
at that time handling this case discovered the photographs of this notebook.
She reached out to defense counsel and they agreed that that an intern from
the district attorney's office would review the case file and sanitize the file of
any kind of materials from that notebook and provide the material to defense
counsel. (N. T. Pre-trial Motions 10 / 31 / 19 at 6-7). This way, the
Commonwealth attorney would never see these materials. (N.T. Pre-trial
Motions 10 / 31 at 6-7). Defense counsel received the materials from the
district attorney's office, reviewed them, and determined, following a discussion
with his client, that there was nothing in the materials to warrant the attention
of the courts and the assistant district attorney's remedy of sanitizing the file
was appropriate and acceptable to defense counsel. (N.T. Pre-trial Motions
10/31/ 19 at 7). However, in reviewing discovery in preparation for trial,
defense counsel encountered a file labeled "witness list" and realized that this
was photographs of his client's notebook.
In bringing this motion for sanctions, defense counsel did not allege any
impermissible or unethical conduct of any of the assistant district attorneys
involved in this case. (N.T. Pre-trial Motions 10/31/19 at 6,8). Rather, he
alleged that this notebook was obtained impermissibly by the complaining
witness and was subsequently not quarantined appropriately. Defense counsel
conceded that dismissal of the case was not appropriate and suggested a jury
instruction regarding the obtaining of this information as a remedy. (N.T. Pre-
trial Motions 10/31/19 at 11).
Page 29 of 40
Neither of the assistant district attorneys handling this case ever actually
saw the challenged material. (N.T. Pre-trial Motions 10/31/19 at 13-14, 18-
19). It was not used in any way in preparation for this case. (N.T. Pre-trial
Motions 10/31/19 at 13-14). The Commonwealth acted at all times to protect
the defendant's rights and to ensure that no prosecutor who might be involved
in this case did not see this information. This information was in the
possession of the Commonwealth presumably because an intern failed to
recognize this as material to be quarantined. The Commonwealth did not
engage in any misconduct or impermissible retention of the documents to
warrant the imposition of sanctions. Nor, as Appellant claims, was there any
failure by the Commonwealth to promptly notify Appellant and his counsel of
the Commonwealth's possession of said notes. These notes were obtained by
the complaining witness during a custody exchange. She was not acting as an
arm of the commonwealth or an extension of law enforcement when she
brought this information to the Commonwealth's attention. At trial, defense .
counsel had an opportunity to cross examine the witness related to this issue.
The court instructed the jury on the credibility of witnesses and false in one,
false in all. (N.T. 11/7/19 at 10-17). Those jury instructions relate to
credibility of the witness and were sufficient to address this issue. The court
exercised proper discretion m denying to impose sanctions on the
Commonwealth.
Appellant's sixth claim of error is that after sentencing, Appellant learned
of the existence of statements of the complaining witness made to
Page 30 of40
Conshohocken Borough Police Department as part of the labor investigation,
which the Commonwealth failed to produce to the Appellant and his counsel.
. Here, Appellant does not raise any particular error of the trial court. Appellant
provides no specificity as to what this evidence is, when the Commonwealth
obtained it, and how the Commonwealth's alleged failure to produce it
prejudiced him. Without more detail as to the content of this evidence, when
the Commonwealth allegedly learned of these statements, and at what stage
during the proceeding it allegedly failed to produce this evidence to defense
counsel, the court is forced to speculate as to Appellant's .claim of error and his
remedy requested. With respect to materiality, "the mere possibility that an
item of undisclosed information might have helped the defense, or might have
affected the outcome of the trial, does not establish materiality in the
constitutional sense." See Commonwealth v. Santos, 176 A.3d 877, 884 (Pa.
Super. 2017).
Appellant's seventh claim of error on appeal is that the court failed to
take proper account of the complaining witness's demonstrated complicity in
the actions that were at the heart of the obstruction and harassment
convictions. Once again, Appellant does not claim with any specificity what.
alleged error of the court made with respect to this issue. During this four-day
trial, the jury heard testimony and evidence from a number of witnesses,
including the complaining witness, Ms. Malloy. Defense counsel conducted an
extensive and effective cross examination of Ms. Malloy and questioned her
about her complicity and involvement in the actions that took place. The jury
Page 31 of 40
carefully considered all of the evidence. This is evident by the questions they
asked during their deliberations. The note read:
"We have a question. You may or may not be able to answer this
question. If you believe a defendant and the alleged victim worked
together to write an e-mail, can the e-mail be obstruction of
administration of law or other governmental function? This is if the law
can explain obstruction of administration of law or governmental
function."
(N.T.11/7/19at48).
Upon conference with counsel to discuss this note, the court stated:
"So my inclination is to simply tell them that this is entirely up to them.
I have given them the legal instructions and the definitions of the
offenses, and whether the facts as they find them make out the law is up
tothem." (N.T.11/7/19at48-49).
All counsel agreed with this approach. (N.T. 11/7 / 19 at 49). As a result, the
trial court instructed the jury:
"The answer to your question is, it's up to you. I have given you the law
as itexists. There is not an additional instruction for me to give you.
You determine what the facts are, and if the facts meet the elements of
the offenses, then it's been proven beyond a reasonable doubt. It's your
decision. So that is the best answer and only answer I can give you."
(N.T. 11/7/19 at SO).
The jury carefully considered all of the evidence presented in this case and
made a determination as to whether the facts met the elements of the offenses
in this case. In doing so, the jury found Appellant not guilty of many of the
charges against him. Resolving contradictory testimony and questions of
credibility are matters for the finder of fact. E.g. Commonwealth v. Miller, 172
A.3d 632, 642 (2017). It is well-settled that the court cannot substitute its
judgment for that of the trier of fact. Id. Appellant's claim that the court "failed
to take proper account of the complaining witness's complicity" has no basis.
Page 32 of40
Appellant's last four claims of trial court error relate to the sufficiency of
the evidence for each of the crimes for which Appellant was found guilty. The
standard for sufficiency of the evidence 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 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 finder 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."
Commonwealthv. Sipps, 225A.3d 1110, 1113 (Pa. Super. 2019),appeal
denied, No. 44 MAL 2020, 2020 WL 3529427 (Pa. June 30, 2020)
First, Appellant claims that the evidence was insufficient to sustain the
charge of intimidation of a witness. Appellant was guilty of one count of
intimidation of a witness - withhold information 19 for conduct that occurred on
December 6, 2017. For that crime, the following two elements must be proven
beyond a reasonable doubt: (1) the defendant intimidated or attempted to
intimidate a witness or victim into withholding testimony, information, or a
document relating to the commission of a crime·from a law enforcement officer,
prosecuting official, or judge; and (2) that the defendant did so with the intent
19
18 Pa.C.S.A. § 4952(a)(3).
Page 33 of40
to, or with the knowledge that his conduct would, obstruct, impede, impair,
prevent or interfere with the administration of criminal justice. See 18
Pa.C.S.A. § 4952 (a)(3).
The crime of intimidation of a witness - withhold information focuses on
the mens rea of the defendant. Actual intimidation of a witness is not an
essential element of the crime. Com. v. Beasley, 138 A.3d 39, 48 (Pa. Super.
2016). The crime is committed if one, with the necessary mens rea, attempts to
intimidate a witness or victim. Id. The trier of the fact, therefore, could find
that a defendant attempted to intimidate his accuser and that he did so
intending, or at least having knowledge, that his conduct was likely to impede,
impair or interfere with the administration of criminal justice. See Id. The
Commonwealth is not required to prove mens rea by direct evidence, and may
rely on circumstantial evidence. Id.In this case, on December 6, 2017, the victim received a letter from
Appellant. The content of the letter, as set forth earlier in this opinion, was
intimidating on its face. It specifically stated to the victim to ,beware of the
alleged surveillance cameras in the house. It instilled a fear in her that if she
were to continue to bring forth these charges, she could be arrested. Appellant
directed her to withhold information if contacted: "If called DO NOT TALK TO
ANYONE, USE YOUR RIGHT TO REMIAN SILENT AND DO NOT GIVE ANY
STATEMENTS OR SUBMIT TO AN INTERVIEW regarding the videos. DO NOT
COMMENT OR DENY, JUST REMAIN SILENT. And make sure those cameras
get taken down." (N.T. 11/4/ 19 at 84, Exhibit C-7).
Page 34 of 40
Appellant testified during trial that he and the victim discussed the
circumstances surrounding this letter, and that she asked him to compose this
letter because she was still having contact from the police and she was scared
and didn't know what to do. (N.T. 11/6/19 at 124). However, the victim's
testimony belied that assertion. She stated that when she received this initial
text message directing her to check her mailbox, she was very scared and
immediately tried to determine who it was from and who had been at her home.
(N. T. 11 / 4 / 19 at 82-85). The victim testified she was extremely scared by this
letter because Appellant had gone to wiretap school and he knew how to wire a·.
house with cameras and knew exactly where to place the cameras in order to
obtainthebestviewpoint. (N.T.11/4/19at85).
This letter was an attempt by Appellant to instill fear in the victim and
intimidate her into believing that if she were to testify these cameras would
result in exposing embarrassing and/or inculpatory footage about her. He lied·
to her and told her that he had prior incidents on camera. (N.T. 11/6/19 at
123). Appellant's actions were calculated, precise, methodical and deceitful. It
was only after he was arrested on assault charges that he orchestrated this
scheme to instill fear in the complaining witness, his wife, and intimidate her
into dropping these charges. Our system of justice is dependent on witnesses
and victims feeling confident and safe in coming into 'trial and testifying
knowing they are going to be secure or that there will be repercussions if
someone chooses to try to intimidate them. Appellant's actions were intended
to dissuade her from participating in the prosecution against him. His actions
Page 35 of 40
were precise and deliberate, and he knew or should have known that they
would wreak havoc on our system of justice.
The jury was properly instructed with respect to this charge. (N.T.
11/7/19 at 27-28). The evidence showed a pattern of behavior by Appellant to
attempt to scuttle the prosecution of a domestic violence allegation. The totality
of this evidence was sufficient for the jury to infer that Appellant sent this text
message and letter on December 6, 2017 in an attempt to intimidate Ms.
Malloy into withholding information from a law enforcement officer, prosecuting
official, or judge and that he did so with the knowledge or intent that his
conduct would obstruct, impede, impair, prevent or interfere with the
administration of criminal justice.
Next, Appellant claims that the evidence was insufficient to sustain the
charge of obstructing administration of law or other government function.
Appellant was guilty of one count of obstructing administration of law or other
government function 20 for conduct that occurred on January 10, 2018. For
this crime, the following three elements must be proven beyond a reasonable
doubt: (1) that the defendant obstructed, impaired, or perverted the
administration of law or other government function; (2) that the defendant did
so by unlawful force, violence, or physical interference or obstacle, breach of
official duty, or an act otherwise in violation of the law; and (3) that the
defendant did so intentionally, that is, he acted or failed to act with the
conscious object of causing such an obstruction, impairment, or perversion.
20
18 Pa.C.S.A. § 5101.
Page 36 of40
18 Pa.C.S.A. § 5101. For the first element, whether an actual obstruction,
impairment, or perversion occurred is not required, because the intentional,
although unsuccessful, attempt to bring about that result if also covered by
this offense. Commonwealth v. Snyder, 60 A.3d 165, 175-177 (Pa. Super.
2013). Appellant claims that the Commonwealth did not produce sufficient
evidence to sustain this charge because the evidence demonstrated that Ms.
Malloy was a "willing participant in the creation of said communications, as
well as soliciting said communications."
The jury was properly charged with respect to this offense. (N.T.
11 / 7 / 19 at 30-31). The jury considered whether the victim was a willing
participant in the crime to the extent that they asked a question during their
deliberations as to whether they could find Appellant guilty of this crime if they
believed Ms. Malloy participated in any way. (N.T. 11/7/19 at 48-51). The
alleged participation of the victim has no bearing on whether there is evidence
that a defendant's actions constituted conduct to properly meet the elements of
this crime, nor is it a defense to this crime. The jury properly determined that
for the conduct that occurred on January 10, 2018, the evidence was sufficient
to meet each of the elements of this crime, regardless of whether the victim was
a participant. Appellant created a false e-mail account purporting to be from
an attorney advising the victim about how to proceed at the preliminary
hearing the next morning in order to have the charges against Appellant
dropped. This e-mail on its face is sufficient to establish the elements of the
Page 37 of40
cnme of obstructing administration of Jaw as set forth above. This claim of
error has no merit.
Third, Appellant claims that the evidence was not sufficient to sustain
the charges of criminal use of a communication facility because the evidence
demonstrated that the victim was a "willing participant'. in the creation of said
communications as well as soliciting said communications." Appellant was
guilty of two counts of criminal use of a communication facility 21 for conduct
that occurred on December 6, 2017 and January 10, 2018. For this crime, the
following three elements must be proven beyond a reasonable doubt: (1) that
the defendant intentionally, knowingly, or recklessly used a communication
facility; (2) that the defendant intentionally, knowingly, or recklessly used the
communication facility to facilitate or bring about the commission of the crime
or intimidation or a witness or victim, obstruct administration of law,
harassment and/or stalking; and (3) that the crimes did in fact occur. 18
Pa.C.S.A. 7512 (a).
The jury was properly instructed on this charge. (N.T. 11/7/19 at 28-
29). Appellant's claim that the victim was a willing participant in these
communications is an issue of credibility that was resolved by the jury. This
has no bearing on whether the evidence related to Appellant's conduct was
sufficient to prove the required elements of this charge. In reviewing the
totality of the evidence in the light most favorable to the Commonwealth, the
evidence was sufficient to meet the elements of this crime. It was
21
• 18 Pa.C.S.A. § 7512(a).
Page 38 of 40
uncontroverted that Appellant utilized a communication facility to create a
false phone number in order to intentionally, knowingly or recklessly bring
about the commission of the crime of intimidation of a witness/victim, which
crime did in fact occur. In addition, it was uncontroverted that Appellant used
a communication facility to create a false e-mail account in order to
intentionally, knowingly or recklessly bring about the commission of the crime
of obstructing administration of law, which crime did in fact occur.
Finally, Appellant's last claim of error is that the evidence was
insufficient to sustain the charges of harassment as the evidence demonstrated
that the victim was a "willing participant in the communications and said
communications represented the normal back and forth between Appellant and
Complaining witness." (Concise Statement #11). Appellant was guilty of six
counts of harassment22 for conduc~ that occurred on May 1, 2018 and May 2,
2018. This conduct consisted of hundreds of repeated phone calls and text
messages to the victim over the course of these two days. The victim went to
the police station due to this conduct because she was unable to get it to stop.
(N.T. 11/4/19 at 98-100; N.T. 11/5/19 at 125-128). Appellant admitted to
this conduct. (N.T. 11 /6/ 19 at 156-158, 188-197). The evidence was
sufficient to sustain these charges of harassment and this claim of error has no
merit.
22
2 counts of 18 Pa.C.S.A. § 2709(a)(5)- communicate repeatedly in an anonymous manner; 2_counts of 18
Pa.C.S.A. § 2709(a)(6) - communicate repeatedly at extremely inconvenient hours; and 2 counts of 18 Pa.C.S.A. §
2709(a)(7)- communicate repeatedly.
Page 39 of 40
Conclusion
As a result, the order denying the Appellant's Motion for Reconsideration
of Sentence dated June 10, 2020 should be AFFIRMEq by the Superior Court.
BY THE COURT:
RISA VETRI FERMAN, J.
Copies of Opinion sent by e-mail to:
Robert M. Falin, Chief, Appeals Division, District Attorney's Office
Victoria Kessler, District Attorney's Office
Nathan Schadler, Attorney for the Appellant
Court Administration - Criminal Division
Page 40 of40