Com. v. Hart, J.

J-A01006-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN HART :
:
Appellant : No. 3284 EDA 2016
Appeal from the Judgment of Sentence May 26, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0004175-2012
BEFORE: LAZARUS, J., OTT, J., and PLATT*, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 22, 2018
John Hart appeals from his judgment of sentence, entered in the Court
of Common Pleas of Philadelphia County, after a jury convicted him of stalking
and harassment. Upon careful review, we affirm.
The trial court set forth the facts of this case as follows:
[Hart] and the complainant, [E.V.T.], a local [t]elevision [n]ews
personality, met on Facebook in August of 2011. After exchanging
e-mails for a month, the complainant gave [Hart] her cell phone
number and they arranged to meet for drinks at the Ritz Carlton
in Philadelphia on Labor Day, 2011.
They began dating and went out together about five (5) times and
[Hart] stayed over at [complainant’s] apartment on one occasion.
Not long after [Hart] spent the night at [complainant’s]
apartment, the complainant decided to end the relationship and
told [Hart] she was no longer going to see him. Subsequent to
the decision to end the relationship with [Hart] on October 6,
2011, the complainant received a message from Facebook stating
that she was trying to change her password. Although she had
not been trying to change her password, she thought nothing of
it. After that[,] on October 13, 2011, the complainant began to
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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receive abusive text messages threatening to end her career by
releasing negative gossip to the press and referencing private
information she had shared with [Hart] while they were dating.
Her telephone numbers were changed, and her cable was shut off
three (3) times by someone calling the provider and terminating
service. The complainant also began receiving multiple telephone
calls from blocked numbers and when she would answer, the caller
would hang up. This continued for many days and the calls were
always from a blocked number.
The complainant reported the incidents to the police and a
detective was assigned. Detective [Steve] Parkinson retrieved a
recording from the complainant’s telephone provider. The
recording was of a man attempting to disguise his voice as that of
a woman and trying to have the complainant’s telephone service
cancelled. The complainant immediately recognized the voice as
that of [Hart].
[Hart] also had a relationship with Laura Selvage[,] who he met
on Facebook in January of 2011. Ms. Selvage[,] who lived in
Baltimore, Maryland, shared Facebook messages with [Hart] for a
month before she gave him her telephone number and they began
talking on the telephone. She subsequently agreed to a date and
went out with [Hart] in late February or early March, 2011. A few
weeks later, [Hart] came back to Baltimore and had dinner at Ms.
Selvage’s home with her parents. The next day, he once again
returned to Baltimore and took Ms. Selvage out to dinner. Upon
their return to Ms. Selvage’s home, they went to the basement to
watch a movie. Ms. Selvage fell asleep and when she woke up,
[Hart] began speaking to her in a feminine voice. Startled, she
stood up and told [Hart] to leave. They continued talking by
telephone for the next week or two[,] with [Hart] wanting her to
change her Facebook status to “being in a relationship.” Realizing
she wasn’t interested in a relationship with [Hart], Ms. Selvage
began telling him she wasn’t interested. [Hart] responded by
sending threatening and abusive text messages including private
information [Ms. Selvage] had shared with [him] while they were
dating. When Ms. Selvage blocked [Hart] from being able to call
or text her, she began to have website accounts cancelled without
her permission and passwords to various accounts changed
without her authorization. Her cellphone number was changed
without her permission five (5) times. She received calls from
numbers that were blocked or unknown and when she answered
there would be silence. This occurred fifteen (15) to twenty (20)
times daily for two (2) months. Ms. Selvage had her debit card
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cancelled without her authorization. When she inquired about it,
she was told someone with a female voice had called and cancelled
the card.
Michael Sander, [Hart’s] [p]arole [a]gent, testified he had listened
to the recording of the man attempting to disguise his voice as
that of a woman and identified it as that of [Hart].
[Hart] presented witnesses (Barry Goldstein, Esquire, a family
friend; Kevin Thompson, [Hart’s] uncle[;] and Jill Pizzola, [Hart’s]
former girlfriend)[,] who testified they had listened to the tape
recording and could not tell if it was [Hart’s] voice or not.
Trial Court Opinion, 2/24/17, at 3-5 (citations to record omitted).
On November 16, 2011, Hart was arrested and charged with identity
theft, disruption of service, possession of instruments of crime, harassment,
unlawful use of a computer and stalking. On November 12, 2015, a jury found
him guilty of harassment and stalking and, on May 26, 2016, the trial court
sentenced him to 2½ to 5 years’ incarceration, followed by two years of
probation. Post-sentence motions were denied and Hart filed a timely notice
of appeal to this Court, followed by a court-ordered statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Hart raises the following issues for our review:
1. Whether the Commonwealth’s evidence was sufficient to find
[Hart] guilty of stalking and harassment beyond a reasonable
doubt, where the jury found reasonable doubt of guilt and
acquitted [Hart] of all of the offenses (identity theft, disruption of
service, possessing an instrument of crime, and unlawful use of
computers) which would have constituted the only methods in
which [Hart] would have committed the offenses of stalking and
harassment, and where the same evidence was insufficient to
convict [Hart] of stalking and harassment in isolation?
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2. Whether the guilty verdicts on the charges of stalking and
harassment were contrary to the weight of the evidence so as to
“shock the conscience” of the court?
3. Whether the trial court erred by admitting evidence of “other
crimes”/“prior bad acts” allegedly committed by [Hart] in the form
of testimony from Laura Selvage and any related physical
evidence or documentary evidence (text messages) in
contravention of [Pennsylvania Rule of Evidence] 404(b) where no
exceptions to the [rule] apply?
4. Whether the trial court erred by admitting into . . . evidence .
. . alleged text messages from [Hart] to Laura Selvage which were
transcribed by Selvage[,] where the text messages could not be
properly authenticated and where therefore the prejudice caused
by the admission of the transcribed text messages outweighed
their specious probative value?
5. Whether the trial court erred by admitting into . . . evidence .
. . alleged text messages from [Hart] to Laura Selvage where the
transcribed text messages failed to show alleged responses from
Selvage in violation of the rule of completion, and where therefore
the prejudice caused by the admission of the transcribed text
messages outweighed their specious probative value?
6. Whether the trial court erred in [not] granting an evidentiary
hearing where [Hart] raised issues of ineffectiveness of trial
counsel within his post[-]sentence motions, in contravention of
Pennsylvania appellate court holdings in Commonwealth v.
Moore, 978 A.2d 988 (Pa. Super. 2009)[,] and Commonwealth
v. Bomar, 826 A.2d 831 (Pa. 2003)?
Brief of Appellant, at vi.
Hart first claims that the evidence was insufficient to convict him of
harassment and stalking, where he was acquitted of the crimes that were the
only means by which he could have harassed or stalked the victim. Hart also
argues there was no reliable evidence to prove that Hart was the person who
caused the problems the victim experienced. He asserts that the
Commonwealth’s case was almost entirely circumstantial and based on
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unreliable voice identifications by lay persons; that the Commonwealth
produced no forensic or technical evidence that Hart tampered or interfered
with the victim’s (or Selvage’s) internet, cable, or cell phone accounts; and
that the Commonwealth failed to prove how he could have obtained the
personal information necessary to do so. Hart is entitled to no relief.
We begin by noting that
[f]ederal and Pennsylvania courts alike have long recognized that
jury acquittals may not be interpreted as specific factual findings
with regard to the evidence, as an acquittal does not definitively
establish that the jury was not convinced of a defendant’s guilt.
Rather, it has been the understanding of federal courts as well as
the courts of this Commonwealth that an acquittal may merely
show lenity on the jury’s behalf, or that the verdict may have been
the result of compromise, or of a mistake on the part of the jury.
Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014) (citations and
quotation marks omitted). While Hart acknowledges that inconsistent verdicts
will not support a sufficiency claim, he asserts that his case falls under an
exception to that rule. Specifically, he cites Commonwealth v. Magliocco,
883 A.2d 479 (Pa. 2005), and Commonwealth v. Watson, 431 A.2d 949
(Pa. 1981). However, both cases are readily distinguishable.
In Magliocco, the defendant was charged with terroristic threats and
ethnic intimidation. He was convicted of ethnic intimidation, but acquitted of
terroristic threats, which, at the time, was a predicate offense to ethnic
intimidation. Magliocco challenged the sufficiency of the evidence supporting
his conviction for ethnic intimidation. The Supreme Court concluded that, in
acquitting the defendant, the jury found that he did not “commit” terroristic
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threats. Because the commission of the crime of terroristic threats was a
specific element of ethnic intimidation, the evidence was, therefore,
insufficient to sustain the defendant’s ethnic intimidation conviction.
However, in that case, unlike the case at bar, it was the fact of the jury’s
acquittal, and not any factual inference drawn from the acquittal, that was
the determining factor.
In Watson, the defendant was convicted of voluntary manslaughter and
possession of a concealed weapon after raising a self-defense claim. On
appeal, the defendant argued that the Commonwealth failed to meet its
burden of disproving her self-defense claim beyond a reasonable doubt and,
thus, that the evidence was insufficient to establish the necessary criminal
intent to sustain her convictions. Our Supreme Court agreed, finding the
Commonwealth had failed to disprove the self-defense claim, and, thus, the
defendant killed her common law husband in self-defense. Applying that
finding to the defendant’s possession of a concealed weapon conviction, the
Court concluded that “criminal intent cannot be inferred from the
circumstances surrounding appellant’s possession of the gun which killed her
husband because appellant, having acted in self-defense, never used that gun
to commit a crime.” Watson, 431 A.2d at 953. Thus, unlike the case sub
judice, Watson did not involve an inference from a jury acquittal or an
inconsistent verdict challenge.
Based on the foregoing, Hart’s claim based on the inconsistency of the
jury’s verdict must fail.
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We review Hart’s sufficiency of the evidence claim under the following
standard:
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. Vargas, 108 A.3d 858, 867–68 (Pa. Super. 2014)
(citation omitted).
Hart was convicted of harassment and stalking. A person commits the
crime of harassment when, with intent to harass, annoy or alarm another, the
person:
...
(3) engages in a course of conduct or repeatedly commits acts
which serve no legitimate purpose;
(4) communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language, drawings or
caricatures; [or]
(5) communicates repeatedly in an anonymous manner[.]
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18 Pa.C.S.A. § 2709(a).
A person commits the offense of stalking when he “engages in a course
of conduct or repeatedly communicates to another person under
circumstances which demonstrate or communicate either an intent to place
such other person in reasonable fear of bodily injury or to cause substantial
emotional distress to such other person.” 18 Pa.C.S.A. § 2709.1(a).
At trial, the Commonwealth presented evidence that Hart contacted the
victim via Facebook and they began communicating with each other. The
victim eventually went on approximately five dates with Hart. On one
occasion, Hart spent the night at the victim’s apartment and was alone in the
apartment when the victim walked her dog. During the course of the brief
relationship, the victim related to Hart a story about an ex-boyfriend she and
several of her friends referred to as “the Straddler.” The victim also told Hart
about her close friend, Danny, as well as her fondness for the “Harry Potter”
book series.
Following an incident in which the victim heard Hart create an elaborate
lie about why he would be late to visit his brother, the victim determined that
she was no longer interested in pursuing a relationship with Hart. She asked
Hart to call her and, when he did, she told him “I think we want different
things, and thank you so much, and please don’t call me, essentially.” N.T.
Trial, 10/30/15, at 54. The victim testified that Hart seemed “irritated” and
“a bit agitated” in response and attempted to make it seem “like he was the
one rejecting [the victim] instead.” Id. at 55.
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Less than a week thereafter, the victim was notified that someone was
attempting to change her Facebook password. She then began receiving
threatening and abusive texts from an unknown Yahoo email address, some
of which made reference to her friend Danny, “the Straddler,” and Harry
Potter, as well as the fact that her cell phone number had been changed
multiple times. The victim’s cable account was also cancelled three times, all
without her permission. The victim testified that the texts and attacks on her
cable and cell phone accounts made her feel scared and described it as a
“private hell.” N.T. Trial, 11/3/15, at 48. She contacted police, who obtained
a recording from her cell phone carrier of the voice attempting to change her
phone number. Although the voice sounded like a man pretending to be a
woman, the victim “immediately knew it was John Hart.” Id. at 74. She
testified that she recognized “the way and the rate at which he spoke,” “the
way he said thank you,” because it was “something [she had] heard him say
to waitresses,” and the way “his voice goes up at the end.” Id. Hart’s parole
officer, Michael Sander, also testified that he recognized the voice as Hart’s.
In particular, Sander recognized his “speech patterns and intonations” and
noted that the voice said “and things like that” and “that’s correct,” which
were both common to Hart’s speech patterns. N.T. Trial, 11/5/15, at 15.
This evidence alone, as well as the reasonable inferences derived
therefrom, if believed by the factfinder, demonstrated that Hart “engage[d] in
a course of conduct or repeatedly commits acts which serve no legitimate
purpose” and “communicate[d] repeatedly in an anonymous manner[.]” See
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18 Pa.C.S.A. § 2709(a). Additionally, the evidence proved that Hart engaged
in a course of conduct or repeatedly communicated to the victim under
circumstances which demonstrated or communicated either an intent to place
such the victim in reasonable fear of bodily injury or to cause substantial
emotional distress to the victim. See 18 Pa.C.S.A. § 2709.1(a). To the extent
that Hart claims the evidence was insufficient because it was “completely
circumstantial and unreliable,” he is entitled to no relief. It is well-settled that
the Commonwealth can meet its burden of reasonable doubt by means of
wholly circumstantial evidence. Commonwealth v. Pennix, 176 A.3d 340,
343 (Pa. Super. 2017). In addition, the reliability of evidence goes to its
weight, not sufficiency. Commonwealth v. Sullivan, 581 A.2d 956, 959 (Pa.
Super. 1990).
Hart next claims that the verdict was contrary to the weight of the
evidence.
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.
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Commonwealth v. Houser, 18 A.3d 1128, 1135–36 (Pa. 2011) (citations
and internal quotation marks omitted).
Here, the jury heard the testimony of the witnesses and concluded that
Hart had committed the crimes of harassment and stalking. It is within the
sole province of the jury, sitting as fact-finder, to review the evidence and
assess the credibility of the testifying witnesses. Commonwealth v.
Williams, 854 A.2d 440, 445 (Pa. 2004). The trial court, which also observed
the demeanor and testimony of the witnesses, concluded that “the verdict
reached in this matter would [not] shock the conscience of a reasonable
person reviewing the evidence as it was presented at trial.” Trial Court
Opinion, 2/24/17, at 8. Based on our review of the record, we can discern no
abuse of discretion on the part of the trial court in so concluding.1
Hart next claims that the trial court erred in admitting the testimony of
Laura Selvage under the “common plan, scheme or design” exception to the
general rule excluding evidence of prior bad acts or crimes. Hart argues that
Selvage’s testimony fails to demonstrate a common scheme, plan or design
____________________________________________
1 As part of his weight claim, Hart alleges that the victim falsely claimed that
Hart “only spent one night with her where the couple had intercourse,” while
the Commonwealth allegedly stipulated that the victim told Detective
Parkinson “that she had intercourse with [Hart] on two nights[.]” Brief of
Appellant, at 21. In fact, the record contains no mention of intercourse
whatsoever. We note with disapproval that this argument is not only a clear
misstatement and embellishment of both the victim’s testimony and the
stipulation of the parties, but is also a transparent attempt by Hart and/or his
counsel to impugn the victim’s character by intentionally mischaracterizing
her testimony to include reference to sexual relations, where no such
reference was made or even suggested.
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and that the trial court “failed to consider substantial differences in the
technical problems allegedly suffered by the two women.” Brief of Appellant,
at 25. Specifically, Hart argues that, while the victim received anonymous
abusive and threatening text messages, Selvage never received any
anonymous texts. Selvage’s membership in the website Care.com was
revoked and her passwords for Facebook, MySpace and two email accounts
were changed, while the victim did not testify that any of her internet
passwords were changed. Finally, Selvage’s debit card was cancelled without
her knowledge, while the victim’s bank or credit card accounts were not
tampered with. Hart is entitled to no relief.
Initially, we note that:
[t]he admission of evidence is solely within the discretion of the
trial court, and a trial court’s evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. An abuse of
discretion will not be found based on a mere error of judgment,
but rather occurs where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment exercised
is manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (quotation
marks and citations omitted).
The general threshold for admissibility of evidence is relevance.
Evidence is relevant if it has any tendency to make a fact more or less probable
than it would be without the evidence and the fact is of consequence to
determining the action. Pa.R.E. 401. All relevant evidence is admissible,
subject to certain exceptions. Pa.R.E. 402. Relevant to this claim, evidence
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of another crime, wrong, or other act is not admissible to prove a person’s
character or to show that, on a particular occasion, the person acted in
accordance with that character. Pa.R.E. 404(b)(1). However, such evidence
may be admissible to prove
(1) motive; (2) intent; (3) absence of mistake or accident; (4) a
common scheme, plan or design embracing commission of two or
more crimes so related to each other that proof of one tends to
prove the others; or (5) to establish the identity of the person
charged with the commission of the crime on trial, in other words,
where there is such a logical connection between the crimes that
proof of one will naturally tend to show that the accused is the
person who committed the other.
Commonwealth v. Lark, 543 A.2d 491, 497 (Pa. 1988) (citation omitted).
Evidence will not be prohibited merely because it is harmful to the
defendant. Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa. 2007).
Rather, evidence will be excluded where the probative value of the evidence
might be outweighed by the danger of unfair prejudice, confusion of the
issues, misleading the jury, undue delay, pointlessness of presentation, or
unnecessary presentation of cumulative evidence. Pa.R.E. 403. “Unfair
prejudice” means a tendency to suggest a decision on an improper basis or to
divert the jury’s attention away from its duty of weighing the evidence
impartially. Pa.R.E. 403, comment. When weighing the potential for
prejudice, a trial court may consider how a cautionary jury instruction might
ameliorate the prejudicial effect of the proffered evidence. Pa.R.E. 404(b),
comment.
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In order for evidence of other criminal activity to be admissible to
establish a common scheme, two conditions must be satisfied: (1) the
probative value of the evidence must outweigh its potential for prejudice
against the defendant; and (2) a comparison of the crimes must establish a
logical connection between them. Commonwealth v. Arrington, 86 A.3d
831, 842 (Pa. 2014). “To make one criminal act evidence of another, a
connection between them must have existed in the mind of the actor, linking
them together for some purpose he intended to accomplish; or it must be
necessary to identify the person of the actor, by a connection which shows
that he who committed the one must have done the other.” Commonwealth
v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017), quoting Shaffner v.
Commonwealth, 72 Pa. 60, 65 (1872).
In further explaining the logical connection standard, this Court
has noted “much more is demanded than the mere repeated
commission of crimes of the same class, such as repeated
burglaries or thefts. The device used must be so unusual or
distinctive as to be like a signature.” Commonwealth v. Rush,
[] 646 A.2d 557, 560–61 ([Pa.] 1994) (crimes containing uniquely
similar attributes constitute a signature), quoting MCCORMICK ON
EVIDENCE, § 190 at 449 (2d Ed. 1972) (emphasis omitted). See
also Commonwealth v. Hughes, [] 555 A.2d 1264, 1282 ([Pa.]
1989) (similarities in crimes not confined to insignificant details
represent a signature); [Commonwealth v.] Weakley, 972 A.2d
[1182,] 1189 [(Pa. Super. 2009)] (identity of perpetrator in
underlying crime may be proved through other acts where they
“share a method so distinctive and circumstances so nearly
identical as to constitute the virtual signature of the defendant”).
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Hicks, 156 A.3d at 1125–26. However, “[t]he common scheme exception
does not require that the two scenarios be identical in every respect.”
Commonwealth v. Tyson, 119 A.3d 353, 360 n.3 (Pa. Super. 2015).
Here, Hart argues that there is “no logical or factual connection between
[the victim] and Selvage.” Brief of Appellant, at 28. He is incorrect. The
harassment to which Selvage was subjected after she broke off her
relationship with Hart bore striking similarities to that experienced by the
victim. Hart’s courses of conduct with regard to both women were distinctive
and possessed a sufficient commonality of factors, such as to permit the
conclusion that they were logically connected and presented a “virtual
signature.” Specifically, in both cases Hart: met the women by approaching
them on Facebook; engaged in short-term romantic relationships that were
both ended by the women; pressured the women and engaged in behavior
the women found to be disturbing;2 threatened to reveal information the
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2 The victim testified that Hart told an elaborate and disturbingly detailed lie,
ostensibly to his brother, about why he was running late for their meeting.
Hart also pressured the victim to visit his high school with him, which she
interpreted to mean that “he wanted this relationship to get more serious . . .
it just seemed he wanted things to develop.” N.T. Trial, 10/30/15, at 54.
Selvage testified that Hart pressured her to change her Facebook status to “in
a relationship,” even after she indicated that she was not interested in
pursuing anything further with him. He also posted a comment on her
Facebook page that “turned [her] off” and caused a “fight” between them.
N.T. 11/3/15, at 76, 77.
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women had shared with him in confidence;3 insulted the women’s romantic
abilities and physiques;4 called the women from blocked numbers, remained
silent and hung up when they answered; repeatedly cancelled services to
which the women subscribed;5 and affected a high, feminine voice in an effort
to change or cancel services without permission.6
The foregoing facts demonstrate that Hart engaged in a common
scheme, plan, or design to harass, annoy and generally disrupt the lives of
former paramours who had romantically rejected him. The evidence revealed
a singular purpose in Hart’s mind, Hicks, supra, to accomplish this end in
both cases. The factual overlap between the two scenarios goes beyond the
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3 In Selvage’s case, Hart threatened to reveal her drug experimentation to her
father. In the victim’s case, Hart threatened to falsely claim that the victim
had given her friend Danny the nickname “the Straddler,” to ruin her career,
and to give information about the victim to a local gossip columnist.
4 Hart called Selvage “sugar tits” and told her “you kissing, were GAY.” See
N.T. Trial, 11/3/15, at 71. The victim received texts stating “[d]o you even
realize what a fucking tool you are, not one redeeming quality, not even good
in bed,” calling her a “fucking whore” and saying she had a “fat ass.” See
N.T. Trial, 10/30/15, at 59-60.
5 Selvage’s Facebook, MySpace, Care.com and T Mobile passwords and/or
memberships were altered. The victim’s cell phone number was repeatedly
changed and her cable and internet services were cancelled multiple times.
The victim also received messages from Facebook indicating that someone
had tried to change her password.
6 Selvage’s Bank of America debit card was cancelled by someone described
by the company as a woman. Selvage also testified that Hart once spoke to
her in a “creepy,” “feminine,” “high” voice, asking her to cuddle. N.T. Trial,
11/3/15, at 63. The victim’s cell phone number was changed by a person that
a company representative said “sounded like a man doing a woman’s voice.”
N.T. 10/30/15, at 70. The victim subsequently identified the voice as Hart’s.
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commission of crimes or conduct of the same general class. Rush, supra.
Moreover, the small factual distinctions noted by the two victims (i.e., different
websites and accounts hacked, etc.) are not substantial enough to disqualify
Selvage’s testimony as proof of a common scheme, plan or design. Finally,
the court gave limiting instructions, both prior to Selvage’s testimony and
during the jury charge, that Selvage’s evidence was only to be considered for
the purpose of “tending to show the defendant’s identity in the case involving
[the victim] and that the defendant engaged in a similar course of conduct
toward both Ms. Selvage and [the victim] under the same circumstances, that
is, when they ended a relationship with him.” N.T. Trial, 11/10/15, at 21. The
jury is presumed to follow the court’s instructions. Commonwealth v. Tilley,
595 A.2d 575, 583 (Pa. 1991). For all the foregoing reasons, we find that the
trial court did not abuse its discretion in admitting Selvage’s testimony.
We will address Hart’s next two claims together, as they both involve
the admissibility of text messages. Hart claims that the trial court erred by
admitting into evidence text messages from Hart to Selvage, which had been
transcribed by Selvage, because the messages could not be properly
authenticated. Hart argues that Selvage is an “adverse party” and, as such,
“the likelihood of the accuracy of the transcription [is] much less reliable.”
Brief of Appellant, at 31. Moreover, Hart claims there was no corroboration
from either Hart’s or Selvage’s cell phone service provider regarding the time
and date of the texts. Further, Hart asserts that the text messages were
irrelevant to the case because the victim in this case “never received text
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messages from [Hart] during or after their break up.” Id. at 33. Hart also
claims that the admission of the text messages violates the “rule of
completeness,” set forth in Pa.R.E. 106, and deprived the jury of the context
of the text messages, “which in a vacuum were embarrassing to [Hart], and
showed him in a negative and a potentially false light.” Id. at 35. Hart argues
the prejudice caused by the admission of the messages outweighed their
probative value. Hart is entitled to no relief.
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. Levanduski, 907 A.2d 3, 13–14 (Pa. Super. 2006).
Pennsylvania Rule of Evidence 901 provides that authentication is
required prior to admission of evidence. The proponent of the evidence must
introduce sufficient evidence that the matter is what it purports to be. Pa.R.E.
901(a). Testimony of a witness with personal knowledge that a matter is what
it is claimed to be can be sufficient. Pa.R.E. 901(b)(1). “[P]roof of any
circumstances which will support a finding that the writing is genuine will
suffice to authenticate the writing.” In re F.P., 878 A.2d 91, 94 (Pa. Super.
2005) (citations omitted). Circumstantial evidence may suffice where the
circumstances support a finding that the writing is genuine. Commonwealth
v. Koch, 39 A.3d 996, 1002 (Pa. Super. 2011), citing In the Interest of
F.P., a Minor, supra.
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This Court has held 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, and that such evidence is to be evaluated on a case-by-case
basis, like any other document, to determine whether there has been an
adequate foundational showing of its relevance and authenticity. Koch, 39
A.3d at 1003. Relevant to the instant matter are two cases cited with approval
by the Court in Koch:7
In People v. Chromik, [] 946 N.E.2d 1039 (Ill. App.3 2011), an
Illinois appellate court held that a transcription of text messages
created by the school principal as read to him by the victim was
authentic. While the transcription was not completely accurate,
the dates and times of text messages sent from the defendant to
the victim were consistent with phone company records. The
victim also testified as to the contents of the text messages and
the accuracy of the principal’s transcription.
Similarly, in State v. Taylor, [] 632 S.E.2d 218 ([N.C. App.]
2006), the court held that testimony from the network’s strategic
care specialist and the manager of a wireless store was sufficient
to authenticate the transcription of the text messages sent to and
from the victim's assigned cellular telephone number. The court
held further that the text messages themselves contained
sufficient circumstantial evidence tending to show the identity of
the person who sent and received them.
____________________________________________
7 Hart cites Koch in support of his claim. However, the facts of Koch are
inapposite. In that case, a police officer transcribed text messages from the
defendant’s cell phone. The Commonwealth attempted, successfully, to admit
certain drug-related texts as evidence of the defendant’s drug dealing. This
Court reversed the trial court, finding that the texts were not properly
authenticated. Unlike in the instant matter, however, there was no testimony
establishing who wrote the texts, nor was there testimony from the recipient
of the messages. There was also an absence of contextual clues tending to
reveal the identity of the sender. Moreover, in Koch, the Commonwealth
conceded that the defendant had not written all the texts that had been sent
from her phone. Thus, Koch garners Hart no relief.
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Koch, 39 A.3d at 1004.
In this case, Selvage testified that she personally transcribed the text
messages, verbatim, as received on her phone from the cell phone number
she used to communicate with Hart. In addition, the Commonwealth
presented a print-out of records from Selvage’s cell phone provider
corroborating the time stamps Selvage transcribed in conjunction with the
messages. Moreover, the texts contained numerous contextual clues that
Hart had written them, including references to previous conversations and
interactions between Hart and Selvage. Finally, Hart had ample opportunity
to cross-examine Selvage as to the accuracy of her transcription. Cf.
Commonwealth v. Mosley, 114 A.3d 1072 (Pa. Super. 2015) (text
messages excluded where no evidence, direct or circumstantial, clearly
proving defendant was author of drug-related text messages, or any
corroborating witness testimony regarding authenticity of messages).
Hart also argues that admission of the messages violates the “rule of
completeness” because Selvage did not transcribe her own messages written
in response to Hart’s messages.8 This claim is waived.
Pennsylvania Rule of Evidence 106 provides: “If a party introduces all
or part of a writing or recorded statement, an adverse party may require the
introduction, at that time, of any other part--or any other writing or recorded
____________________________________________
8 Selvage testified that she did not save her own texts because “there’s a limit
to what I could save [on my phone], and at the time I really didn't think of
saving my part of the conversation.” N.T. Trial, 11/3/15, at 69-70.
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statement--that in fairness ought to be considered at the same time.” Pa.R.E.
106. The purpose of the rule is to
give the adverse party an opportunity to correct a misleading
impression that may be created by the use of a part of a writing
or recorded statement that may be taken out of context. This rule
gives the adverse party the opportunity to correct the misleading
impression at the time that the evidence is introduced. The trial
court has discretion to decide whether other parts, or other
writings or recorded statements, ought in fairness to be
considered contemporaneously with the proffered part.
Pa.R.E. 106, comment.
In order to preserve an evidentiary objection for purposes of appellate
review, a party must interpose a timely and specific objection in the trial court.
“The rule is well settled that a party complaining, on appeal, of the admission
of evidence in the [c]ourt below will be confined to the specific objection there
made.” Commonwealth v. Cousar, 928 A.2d 1025, 1041 (Pa. 2007),
quoting Commonwealth v. Boden, 159 A.2d 894, 900 (Pa. 1960). Here,
defense counsel’s objection to the admission of Selvage’s transcribed text
messages was based solely on authentication:
MR. MCMAHON: If I may, Your Honor, this appears to be not the
actual messages. It appears to be someone’s summary of them
sent from her to someone at Baltimore County government.
Evidentiary wise, Your Honor, number one, there has to be a
foundation or basis for this and for this document and how it was
prepared, where it came from, how they attribute these to John
Hart before they can be admissible.
THE COURT: What is the offer of proof?
MS. KATONA: The witness will testify that she prepared this
document, that it is a printout of an email from her to the
Baltimore County police officer who was initially contacted
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regarding this investigation. They are exact copies – she’ll testify
that they are the exact copy and paste of the text messages sent
by the defendant from the phone number she had for him.
Furthermore, Your Honor, Commonwealth’s C-31 is a print out of
[Selvage’s] T-Mobile record from the dates of 3/26 and 3/27, that
substantiates the time stamps back and forth between [Selvage]
and the defendant, matching the text messages here.
MR. MCMAHON: If I may, Your Honor, obviously, as we had with
[the victim], you had the texts and they are what they are. This
is nothing other than someone writing down -- I mean, do we have
the phone with these text messages? Do we have the
companies[’] recovery of the text messages? I could write that
you sent me a text now and write whatever I want to write.
THE COURT: Well, certainly that would be ripe for cross-
examination, but you did receive the discovery.
MR. MCMAHON: Yes. I'm aware this is what she’s saying. My
question is whether there has been a sufficient foundation to have
her testify that these are the text messages, because the best
evidence would be the text, would it not?
THE COURT: She prepared the document, correct?
MS. KATONA: Yes, Your Honor.
THE COURT: So I'm going to allow it. You can question her on
cross-examination.
MR. MCMAHON: Okay. I got you.
N.T. Trial, 11/3/15, at 66-68.
Because Hart did not lodge a timely and specific objection on the basis
of Rule 106, his argument is waived on appeal.
Lastly, the probative value of the text messages outweighs their
potential for unfair prejudice. The striking similarities between the subject
matter and other content of Hart’s text messages to Selvage and the text
messages received by the victim in this case gives the evidence considerable
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probative value. In light of this fact, the nature of the text messages does
not render them unduly prejudicial.
Finally, Hart claims that the trial court erred in failing to grant him an
evidentiary hearing, where he raised issues of trial counsel’s ineffectiveness
in his post-sentence motions. In particular, Hart claims that counsel was
ineffective in failing to object to the trial court’s “flawed and inaccurate jury
instruction on the offense of harassment.” Brief of Appellant, at 37. Hart
asserts that he is entitled to an evidentiary hearing under Commonwealth
v. Moore, 978 A.2d 988 (Pa. Super. 2009), and Commonwealth v. Bomar,
826 A.2d 831 (Pa. 2003). Hart is entitled to no relief.
In Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), our Supreme
Court established the general rule that consideration of claims of
ineffectiveness of counsel should be deferred until collateral review. In
Bomar, our Supreme Court carved out an exception to the rule in Grant,
allowing review of ineffectiveness claims on direct appeal where the claims
have been raised and fully developed at a hearing in trial court.9 Subseqently,
however, the Court revisited the issue in Commonwealth v. Holmes, 79
A.3d 562 (Pa. 2013), in which it considered whether a trial court could ever
____________________________________________
9 Hart’s reliance on Moore is entirely inapposite. There, this Court simply
held that “where a defendant has been found in violation of a [protection from
abuse order (“PFA”)], is sentenced pursuant to 23 Pa.C.S.A. § 6114(b), and
alleges ineffectiveness of counsel, judicial economy may be best served by the
PFA court conducting a post-sentence Bomar evidentiary hearing on a
defendant’s claims of ineffective assistance of counsel.” Moore, 978 A.2d at
993.
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consider an ineffectiveness claim in the context of post-sentence motions, and
whether such claims were reviewable on direct appeal. The Court expressly
limited the holding in Bomar to its pre-Grant facts and concluded that a trial
court may, in its discretion, review ineffectiveness claims in only two
circumstances: (1) where the ineffectiveness claim is both meritorious and
apparent from the record so that immediate consideration and relief is
warranted; and (2) upon good cause shown and only if accompanied by a
waiver of PCRA rights. Beyond these two scenarios, ineffectiveness claims
must be deferred to collateral review.
Here, Hart has not established that either exception applies to his case.
First, his claim is not meritorious. Second, he has not waived his right to seek
PCRA review. Accordingly, he is entitled to no relief.
Hart’s ineffectiveness claim is based on counsel’s failure to object to the
trial court’s “flawed and inaccurate jury instruction [on] the offense of
harassment.” Brief of Appellant, at 37. Specifically, Hart asserts that the trial
court improperly included the definition of “emotional distress” in its
instruction on harassment,10 but, unlike the crime of stalking, the offense of
____________________________________________
10 The trial court issued the following instruction on harassment:
[THE COURT:] Next, harassment. Once again, each element
must be established beyond a reasonable doubt. A person
commits the crime of harassment when they have the intent to
harass, annoy or alarm another. The person engages in the
course of conduct or repeatedly commits acts which serve no
legitimate purpose and or communicates to or about such other
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harassment does not include the element of emotional distress. Hart argues
that “[i]t is very possible that the jury was confused by the incorrect reference
to ‘emotional distress’ in the harassment instruction, and that the confusion
led to a guilty verdict for stalking.” Id. at n.14.
While Hart is correct that the definition of “emotional distress” was
irrelevant to the harassment charge against him,11 we fail to comprehend how
an extraneous definition included in the harassment charge could have
influenced the panel’s verdict on stalking. Moreover, if anything, any
confusion caused by the court’s seeming inclusion of an additional element in
____________________________________________
persons any lewd, lascivious, threatening or obscene words,
language, drawings or caricatures and or communicates
repeatedly in an anonymous manner.
Communicate means to convey a message without intent of
legitimate communication or address by oral, non-verbal, written
or electronic means including telephone, electronic mail, Internet,
wireless communication or similar transmission.
Course of conduct is a pattern of actions composed of more than
one act over a period of time, however short.
Evidence is continuity of conduct. The term includes lewd,
lascivious, threatening or obscene words, language drawings,
caricatures or actions either in person or anonymous.
Emotional distress, a temporary or permanent state or
mental anguish. Again, each element must be established
beyond a reasonable doubt.
N.T. Trial, 11/10/15, at 25-26 (emphasis added).
11 The harassment statute does contain a definition of the term “emotional
distress,” but it is only relevant to subsection 2709(a.1) (cyber harassment of
a child).
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the definition of harassment could only have helped Hart by leading the jury
to believe that an additional element of proof was necessary to a finding of
guilt on that charge.
For the foregoing reasons, the trial court did not err in denying Hart an
evidentiary hearing on his meritless ineffectiveness claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/18
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