Com. v. Beattie, K.

J-A31040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
KEVIN BEATTIE
Appellant No. 135 EDA 2016
Appeal from the Judgment of Sentence December 7, 2015
in the Court of Common Pleas of Philadelphia County Criminal Division
at No(s): CP-51-CR-0011069-2012
BEFORE: BENDER, P.J.E., MOULTON , J., and FITZGERALD, J.*
MEMORANDUM BY FITZGERALD, J.: FILED AUGUST 15, 2017
Appellant, Kevin Beattie, appeals from his judgment of sentence of
three to six years’ imprisonment following the revocation of his probation.
Appellant contends that the trial court (1) improperly admitted hearsay into
evidence without proper authentication; (2) erred by finding the evidence
sufficient to revoke his probation; and (3) erred in holding a revocation
hearing prior to trial on the new charges involving terroristic threats. We
affirm.
On January 13, 2013, Appellant pleaded guilty to arson1 and
conspiracy2 for setting fire to a playground structure in a South Philadelphia
park, causing approximately $325,000.00 in damages. On March 14, 2013,
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S § 3301(c)(1).
2
18 Pa.C.S. § 903.
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the trial court sentenced Appellant to eleven and one-half to twenty-three
months’ imprisonment followed by five years’ probation. On September 26,
2013, Appellant was paroled.
On June 22, 2015, while Appellant was serving the probationary
portion of his arson sentence, he was arrested and charged with simple
assault, aggravated assault and recklessly endangering another person.3 On
July 9, 2015, Appellant was arrested for terroristic threats, possession of a
prohibited firearm and related offenses. The trial court granted the
Commonwealth’s request to proceed with a probation violation hearing
before trial on the new charges, also known as a Daisey Kates4 hearing.
On July 28, 2015, the court held the Daisey Kates hearing. The
Commonwealth presented two witnesses, sisters Kathleen and Regina
Foland, who testified that Appellant sent them threatening Facebook
messages. Kathleen testified that Appellant sporadically lived with her and
her fiancé, Harry Thompson, at their house between December 2014 and
April 2015. Kathleen knew that Appellant closely associated himself with a
professional wrestler, Randy Orton, and “always said” that he was Orton.
N.T. Revocation Hr’g, 9/14/15, at 30-31, 55. In the summer of 2015,
Kathleen was pregnant with her second child with a due date in August. She
3
The Commonwealth subsequently withdrew prosecution on these charges.
4
See Commonwealth v. Kates, 305 A.2d 701, 706 (Pa. 1973) (following
new charges against probationer, court is authorized to hold violation of
probation hearing before trial on new charges takes place).
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and her fiancé Harry also had a four year old daughter, Courtney, who lived
in their house. Kathleen testified that in April 2015, she directed Appellant
to move out of her house after witnessing him break her window, and
because “he beat up [his girlfriend] Janet and they went to court for it and
she dropped the charges because he told her to drop the charges against
him.” Id. at 51.
Kathleen testified that she received a Facebook “friend” request from
an account under the name of “Randy Orton,” but which bore Appellant’s
photograph. Having heard Appellant frequently refer to himself as Orton,
she knew that the Facebook request was from him. On June 13, 2015, she
accepted the “friend” request.
On June 14, 2015, one day after accepting the “friend” request, she
received approximately twenty threatening messages, as well as
photographs of Appellant pointing a gun. She noticed that prior to sending
the threats, the photograph for the account was changed from Appellant to
Randy Orton.
The first message to Kathleen came with the photograph of Appellant
pointing what she believed to be a real gun, with the words: “Your next.”
The second message read:
Hey, you fat pregnant bitch. Me and Janet is on our way
over there to blow up your house and we going to fuck
Jermaine up. Tell him that Ant and I got a little present for
y’all. Tell your precious Courtney she is going to get it too
and Brittany and Harry is going to get wiped out with a
patch of a bomb on that house. We on our way. We
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might just come and do it at night while you are sleeping
again and tell your sister we won’t blow her head off.
Id. at 34-35. Kathleen testified that Jermaine was a friend of Appellant’s
who also had lived in her house for a period of time. Id.
The third message stated: “Fucking bitch. You is a bitch. I am not
scared of the cops. When you see Jermaine today, tell him I’m going to
[kill] him. I’m going to kill Harry. I am going to kill Courtney, Brittany, and
you.” The fourth message read: “Tell your punk ass brother to come
outside. Yeah. I’m right here. Your brother is a punk ass bitch because he
pulled out a fake sword [on] Jermaine. He is a punk ass. We about to break
your brother’s windows. I’m going to blow your house up to the ground.”
She received more pictures of Appellant holding a gun with the text: “You’re
going to see this or I got a gun.” Id. at 35-36.
Another message stated: “Your sister is a fat ass bitch. Your wife is a
fat ass bitch. Me and Lisa and Kelly and Janet we live next door to you all.
We live with Lisa Peewee in her basement right now watching you all. See
you all tonight when your window get broken [in].” Kathleen knew that Lisa
was a friend of Appellant’s wife, Kelly, and lived two houses away from her
own. Id. at 36-37, 47. Yet another message, read: “Your young is a bitch.
He is going to kill Courtney. This is Janet.” Kathleen opined that Janet
could not have sent the message, because she was with her grandmother at
the time. Id. at 37, 46. The final message indicated: “Randy Orton. Time
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is coming for you. This is Kevin. You are dead. The families [leave] to me
and Kelly is coming for you bitches.” Id. at 37.
The other complainant, Regina, testified that at 3:19 a.m. on June 14,
2015, she received three Facebook messages from an account listed under
the name “Randy Orton.” The first message stated: “Time is coming for you
and yours next,” with a row of smiley face emoticons. Id. at 6-16. The
second message read: “Kelly, Janet and Kevin is coming for you and yours.”
Regina also received a photograph of Appellant pointing a gun at the camera
with the text: “You’re first.” The same photograph was sent a second time,
with the message: “Your daughter Brittany, she’s next.” Regina’s daughter
Brittany was seventeen years old at the time. Id. at 13-17.
Regina recognized Appellant’s photograph immediately, having met
him twice at Kathleen’s house. She knew that Janet was Appellant’s
girlfriend, and that “Kelly” was both Appellant’s wife and the sister of
Kathleen’s fiancé, Harry. Regina also knew that Appellant had contact with
her daughter, Brittany, when Brittany lived with Kathleen.
The messages frightened Kathleen and Regina and placed them in fear
for their own and their families’ safety. After Appellant’s arrest on July 9,
2015, Kelly came to Kathleen’s house and asked her to drop the charges.
Kathleen refused. According to Kathleen, she gave birth to her son
prematurely due to the stress caused by the threats. Id. at 39, 55-56.
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Appellant presented Joell McNiff as a witness, who testified that she
received a photograph of Appellant carrying gun in a message over Facebook
from “Kelly Coppertino” on March 4, 2015. McNiff testified that the picture
that she received was the same picture that Regina and Kathleen received.
McNiff claimed that the message came from Kelly Coppertino because she
recognized Coppertino’s cellphone number. Id. at 59-69.
Appellant testified on his own behalf and denied sending any
threatening text messages or having any problems with Kathleen. He
further denied knowing Courtney and Brittany despite acknowledging that he
had lived with Kathleen. He stated that he first saw the picture of him
holding the gun on Jermaine’s Facebook page in March 2015. Appellant
attempted to attribute the messages to Jermaine. Appellant denied that the
Randy Orton account was his. However, he further admitted that while on
probation, he traveled to New Hampshire in May 2015 without permission
and returned in June 2015 for a court date. Id. at 86-94.
The trial court found Appellant in violation of his probation, stating that
it found the Commonwealth’s evidence credible. The trial court concluded
that the Commonwealth had proven that probation “no longer continues to
be a method of supervising.” Id. at 108-09.
At sentencing on December 7, 2015, the Commonwealth sought a
term of imprisonment based on the evidence presented at the Daisey Kates
hearing, the fact that Appellant went to New Hampshire without permission
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while on probation, and his positive drug test for THC ingested in a
marijuana brownie. N.T. Sentencing Hr’g, 12/7/15, at 19-22. The trial court
sentenced Appellant to three to six years’ imprisonment. Id. at 27. On
January 4, 2016, Appellant filed this appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant raises the following issues in this appeal:
A. Did the [t]rial [c]ourt err in admitting into evidence
hearsay documents without proper authentication?
B. Was the [e]vidence admitted by the [t]rial [c]ourt
[s]ufficient to [f]ind [Appellant] in technical violation of his
probation?
C. Did the [t]rial [c]ourt err in holding a Dais[e]y Kates
hearing for [Appellant] to begin with?
Appellant’s Brief at 4.
Appellant first argues that the trial court erred in admitting the
Facebook messages during his revocation hearing because they were
unauthenticated and constituted hearsay. We disagree.
Preliminarily, we note that Appellant’s argument may be deemed
waived. Appellant’s counsel objected once to the form of the
Commonwealth’s question regarding whether Regina “ever got any
messages from [Appellant] about [her] daughter[.]” N.T. Revocation Hr’g at
11. Counsel asserted:
Well, [the Commonwealth] said did you ever get a
message from [Appellant]. So far, [the Commonwealth]
established that [Regina] received messages from Randy
Orton. So I think we have to keep the focus narrow to the
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messages she received from Randy Orton. You haven’t
established that she received messages from [Appellant]
yet.
Id. at 11. Although the trial court sustained the objection to the form and
directed the Commonwealth to rephrase its question, Appellant did not seek
to preclude the messages. Moreover, Appellant did not object when Regina
and Kathleen testified that Appellant sent them the messages. Id. at 15,
41. Therefore, Appellant did not contemporaneously object to the admission
of the evidence based on its authenticity or as hearsay. See Pa.R.A.P.
302(a).
In any event, turning to Appellant’s challenge to the authenticity of the
Facebook message, Rule 901 requires parties to authenticate documents
with “evidence sufficient to support a finding that the matter in question is
what its proponent claims.” Pa.R.E. 901(a). Parties may use circumstantial
evidence to authenticate documents. See Commonwealth v. Collins, 957
A.2d 237, 265 (Pa. 2008) (circumstantial evidence sufficient to authenticate
letter, where letter was mailed from prison where defendant was
incarcerated and contained his prison identification number); In re F.P., 878
A.2d 91, 95 (Pa. Super. 2005) (circumstantial evidence, including use of
defendant’s first name and references to particular events, sufficient to
authenticate threatening instant messages).
Here, the complainants’ testimony provided ample circumstantial
evidence that authenticated the Facebook messages as coming from
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Appellant. Kathleen Foland testified that she accepted Appellant’s “friend”
request over Facebook one day before he sent the threats, and that his
picture was on his account. The account was registered under the name
“Randy Orton,” with whom Kathleen knew Appellant closely associated; she
had heard Appellant refer to himself as “Randy Orton” on numerous
occasions. Appellant changed the picture on his account to one of Orton
when he began sending the threats. The posts contained pictures of
Appellant, and he stated “this is Kevin” in one of the messages. Appellant
had lived with Kathleen for a period of time and clearly identified both
sisters’ family members by name, specifying those members he had lived
with in Kathleen’s house. The threats included the names of Appellant’s
girlfriends, Kelly and Janet, as well as a nearby neighbor of Kathleen’s whom
both Appellant and Kathleen knew. Appellant knew that Kathleen was
pregnant and referred to a particular incident involving Kathleen’s brother
and their mutual friend, Jermaine. Regina received three Facebook
messages from an account listed under the name “Randy Orton,” whom she
knew to be a professional wrestler. Two messages included photographs of
Appellant pointing a gun at the camera with messages threatening her and
her daughter. Regina recognized Appellant’s photograph immediately,
having met him twice at Kathleen’s house in South Philadelphia, and Regina
knew that Appellant had prior contact with Brittany.
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Appellant contends that the Facebook messages were not authentic
because somebody else created them, which he claims is easy to do on
electronic media. This argument is unpersuasive. In F.P., this Court
rejected a similar argument that electronic communications are “inherently
unreliable because of their relative anonymity and the fact that while an
electronic message can be traced to a particular computer, it can rarely be
connected to a specific author with any certainty.” Id. at 95. We reasoned:
“[T]he same uncertainties exist with traditional written documents. A
signature can be forged; a letter can be typed on another's typewriter;
distinct letterhead stationary can be copied or stolen.” Id. In either case,
the evidence is admissible once the proponent offers “evidence sufficient to
support a finding that the matter in question is what its proponent claims,”
as the Commonwealth did here. Id. at 93. Any alleged uncertainties go to
the weight of the evidence, not its admissibility.
As to Appellant’s hearsay claim, it is well settled that:
The focus [of] a probation hearing, even though prompted
by a subsequent arrest, is whether the conduct of the
probationer indicates that the probation has proven to be
an effective vehicle to accomplish rehabilitation and a
sufficient deterrent against future anti-social conduct. It
must be emphasized that a probation revocation hearing is
not a trial: “The court’s purpose is not to determine
whether the probationer committed a crime . . . . It follows
that probation revocation hearings are flexible, and
material not admissible at trial may be considered by
the court.[”] “The degree of proof necessary for probation
revocation is less than that required to sustain a criminal
conviction.” “Probation may be revoked on the basis of
conduct which falls short of criminal conduct.”
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Commonwealth v. Castro, 856 A.2d 178, 180 (Pa. Super. 2004) (citation
omitted) (emphasis added).
Under this liberal standard, the admission of the Facebook messages
was proper. This evidence was clearly relevant to the purpose of the
revocation hearing—the determination of whether probation was “an
effective vehicle to accomplish [Appellant’s] rehabilitation” and “[deter]
future anti-social conduct.” Id. at 160. Furthermore, contrary to
Appellant’s claim, the Facebook messages were not hearsay; they were
admissible under an exception to the hearsay rule, Pa.R.E. 803(25), as
statements “offered against an opposing party” that he made “in an
individual . . . capacity.” See Commonwealth v. Weiss, 81 A.3d 767, 800
(Pa. 2013) (defendant’s threat of another was voluntary extrajudicial
statement that was admissible against him, “even though the threat
contain[ed] no clear admission of guilt of the offense prosecuted”).
For these reasons, Appellant’s challenges to the admission of the
Facebook messages warrant no relief.
In his second issue, Appellant contends that the evidence was
insufficient to support the trial court’s conclusion that he violated his
probation. Appellant’s brief completely fails to develop this argument.
Therefore, he has waived this issue. See Commonwealth v. Freeman,
128 A.3d 1231, 1249 (Pa. Super. 2015) (murder defendant failed to
adequately brief his argument of unlawful jury tampering by prosecution,
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and thus waived argument on appeal, where he made no effort whatsoever
to discuss applicable law or link facts of his case to that law and failed to
develop coherent legal argument in support of his claim).
Even if Appellant had preserved this argument for appeal, it would not
have entitled him to relief. “[R]evocation of a probation sentence is a
matter committed to the sound discretion of the trial court and that court’s
decision will not be disturbed on appeal in the absence of an error of law or
an abuse of discretion.” Commonwealth v. MacGregor, 912 A.2d 315,
317 (Pa. Super. 2006) (citation omitted).
The Commonwealth presented evidence that Appellant repeatedly
threatened to kill Kathleen and Regina and their family members. In
addition to written threats, he sent pictures of himself pointing a gun at the
viewer. He threatened to “blow [Kathleen’s] house up to the ground” and
claimed to be spying on her from a nearby neighbor’s house. As a result,
both sisters feared for their and their families’ safety. Kathleen testified that
the threats caused her such stress that she gave birth to her son
prematurely. Clearly, being on probation had not sufficiently deterred
Appellant from engaging in anti-social conduct. See Commonwealth v.
Infante, 888 A.2d 783, 791 (Pa. 2005) (“A probation violation is established
whenever it is shown that the conduct of the probationer indicates the
probation has proven to have been an ineffective vehicle to accomplish
rehabilitation and not sufficient to deter against future anti-social conduct”
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(citation omitted)). Moreover, the Commonwealth established—and
Appellant himself admitted—that he violated his probation by traveling to
New Hampshire without permission and ingesting marijuana. Thus, the
court’s decision to revoke probation was well within its discretion. See, e.g.,
Commonwealth v. Malovich, 903 A.2d 1247, 1253-54 (Pa. Super. 2006)
(where appellant displayed an “attitude problem” toward probation, was “not
willing to change,” and had not been “putting anything into” court-imposed
rehabilitation efforts, court properly determined that probation was no
longer appropriate and imposed period of incarceration).
In his final argument, Appellant claims that the trial court erred in
holding his revocation hearing prior to trial on his terroristic threats and
weapons charges. Appellant waived this argument by failing to raise it
during his revocation hearing. See Commonwealth v. King, 430 A.2d
990, 991 (Pa. Super. 1981) (“objections not raised during a counselled
revocation proceeding will not be considered on appeal”) (citations omitted).
Even if Appellant preserved this issue for appeal, it is devoid of
substance, because it is clear that “a probation violation hearing may be
conducted prior to a trial for the criminal charges based on the same
activities.” Commonwealth v. Brown, 469 A.2d 1371, 1375 (Pa. 1983)
(citing Kates, 305 A.2d at 706).5
5
The Commonwealth may elect to defer the revocation hearing until after
trial. See Brown, 469 A.2d at 1376. If, however, the defendant is
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[I]t is quite possible for a person to be acquitted of
charges brought against him and yet have his probation
revoked based upon the existence of those charges being
brought against him. However . . . a bare assertion of an
arrest, without a conviction, is lacking in probative value.
Thus, before a court may revoke probation, factual
evidence, in addition to the fact of the arrest, must be
presented.
Commonwealth v. Fleeger, 437 A.2d 60, 61 (Pa. Super. 1981) (citation
and quotation marks omitted). Here, as discussed above, the
Commonwealth fulfilled its burden during Appellant’s revocation hearing by
presenting ample evidence “in addition to the fact of arrest.” Id.Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/15/2017
acquitted at trial, the Commonwealth is barred from seeking revocation on
the basis of the new charges. Id. at 1377-78. Obviously, this scenario did
not occur here, because the Commonwealth opted for a revocation hearing
prior to trial.
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