Commonwealth v. Danzey

• Citation: 210 A.3d 333
• Decision Date: 09 May 2019
• Docket Number: No. 477 MDA 2018,477 MDA 2018
• Parties: COMMONWEALTH of Pennsylvania v. Shauntell Bree DANZEY, Appellant
• Court: Superior Court of Pennsylvania

210 A.3d 333

COMMONWEALTH of Pennsylvania

v.Shauntell Bree DANZEY, Appellant

No. 477 MDA 2018

Superior Court of Pennsylvania.

Submitted November 13, 2018

Filed May 9, 2019

James J. Karl, Harrisburg, for appellant.

Ryan H. Lysaght, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

OPINION BY SHOGAN, J.:

Appellant, Shauntell Bree Danzey, appeals from the judgment of sentence entered on February 27, 2018, in the Court of Common Pleas of Dauphin County. We affirm.

The trial court summarized the factual history of this case as follows:

[T]he instant case arose out of a love triangle involving [Appellant], her former boyfriend (Anthony Bowers), and [ ("Victim") ] (Hiymanot Dessalegn), who began dating Bowers sometime after [Appellant] and Bowers had ended their relationship. At some point after [Victim] began dating Bowers, various social media accounts, which bore profile pictures of [Appellant] or other details that suggested [Appellant's] account ownership and control, began publishing derogatory, sometimes threatening posts referencing and occasionally "tagging" [Victim]. [Victim] showed these posts to her sister, Redeate Dessalegn, whom the Commonwealth used at trial to introduce 16 photographic exhibits of the harassing posts that [Victim], prior to her death,^{[1 ]} began collecting after a no-contact order was put into place between [Victim] and [Appellant].

Trial Court Opinion, 5/8/18, at 1-2 (internal citations omitted).

At trial, Officer Matthew Gallup testified that he responded to a call placed by Victim to the Harrisburg Police Department on September 20, 2016. N.T., 8/15/17, at 131. At the time of their meeting, Victim told Officer Gallup that she was being harassed by Appellant through various social media accounts, despite the fact that a no-contact order was in place between Victim and Appellant. Id. at 132-133. During that meeting, Victim showed Officer Gallup hard copies of the relevant social media posts, as well as posts still viewable on Victim's phone. Id. As a result, Appellant was charged by criminal information filed September 20, 2016, with one count of stalking² and one count of terroristic threats. On November 17, 2016, the Commonwealth filed an amended information, removing the terroristic threat charge and adding a harassment³ charge.

Prior to commencement of trial, Appellant filed a motion in limine on August 14, 2017, seeking to exclude the introduction of sixteen electronic communications, including Facebook and Instagram posts, that were of a vulgar, derogatory, and sometimes threatening nature, directed at Victim. The motion in limine was denied by order of court entered August 14, 2017. The matter proceeded to a two-day jury trial on August 14-15, 2017. At the conclusion of the trial, Appellant was convicted of both charges. Appellant was sentenced on February 27, 2018, to an aggregate term of eleven and one-half months to twenty-three months of incarceration, followed by two years of probation. Appellant filed a notice of appeal on March 15, 2018. Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:

I. In a prosecution for harassment and stalking, did not the trial court err in admitting various social media communications and related testimony when the Commonwealth failed to authenticate such evidence under Pa.R.E. 901 by establishing [Appellant's] authorship of such communications?

II. In a prosecution for harassment and stalking, did not the trial court err in admitting an irrelevant social media communication (Exhibit 16) that was posted after the purported [V]ictim died?

Appellant's Brief at 4.

In her first issue, Appellant argues that the trial court erred in admitting the social media communications and related testimony because the Commonwealth failed to authenticate this evidence pursuant to Pa.R.E. 901 by establishing Appellant's authorship of these communications. Appellant's Brief at 16. Appellant asserts that there is no direct evidence that Appellant authored the posts. Id. at 24. Appellant further maintains that her authorship cannot be established circumstantially because there are no context clues that prove her to be the author. Id. Appellant also contends that to the extent the Commonwealth admitted the social media communications to prove the truth of the matters asserted therein, the communications were inadmissible hearsay. Id. at 25.

Our standard of review of a denial of a motion in limine is as follows:

When ruling on a trial court's decision to grant or deny a motion in limine , we apply an evidentiary abuse of discretion standard of review. The admission of evidence is committed to the sound discretion of the trial court, and a trial court's ruling regarding the admission of evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Moser , 999 A.2d 602, 605 (Pa. Super. 2010) (citation omitted).

Pursuant to Pennsylvania Rule of Evidence 901, 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). Evidence that cannot be authenticated by a knowledgeable person, pursuant to subsection (b)(1), may be authenticated by other parts of subsection (b), including circumstantial evidence pursuant to subsection (b)(4). Pa.R.E. 901(b)(4). Under Rule 901(b)(4), evidence may be authenticated by "Distinctive Characteristics and the Like . The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances." Pa.R.E. 901(b)(4).

Pennsylvania appellate courts considered the authentication of computerized instant messages and cell phone text messages in In the Interest of F.P., a Minor , 878 A.2d 91, 96 (Pa. Super. 2005) (addressing computerized instant messages), and Commonwealth v. Koch , 39 A.3d 996, 1005 (Pa. Super. 2011), affirmed by an equally divided court , 630 Pa. 374, 106 A.3d 705 (2014) (addressing cell phone text messages). In Interest of F.P. , this Court rejected the argument that electronic communications, such as instant messages or e-mails, are inherently unreliable due to their relative anonymity and the difficulty connecting them to their author, noting that the same uncertainties exist with written documents: "A signature can be forged; a letter can be typed on another's typewriter; distinct letterhead stationary can be copied or stolen." Interest of F.P. , 878 A.2d at 95. The Interest of F.P. Court also rejected the notion that unique rules for admissibility of electronic communications should be created, stating "We believe that e-mail messages and similar forms of electronic communication can be properly authenticated within the existing framework of Pa.R.E. 901 and Pennsylvania case law[.]" Id. Additionally, the Interest of F.P. Court concluded that the admissibility of an electronic communication is to be evaluated on a case-by-case basis, as any other document, to determine whether there has been an adequate foundational showing of its relevance and authenticity. Id. at 96.

In considering the authentication of text messages, the Koch Court concluded that "[i]mplicit in these decisions is the realization that e-mails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally." Koch , 39 A.3d at 1004 (citations omitted). The Koch Court additionally observed that "electronic writings typically show their source, so they can be authenticated by contents in the same way that a communication by postal mail can be authenticated." Id. at 1003. This Court also noted the following challenges in authenticating electronic communications:

[T]he difficulty that frequently arises in e-mail and text message cases is establishing authorship. Often more than one person uses an e-mail address and accounts can be accessed without permission. In the majority of courts to have considered the question, the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate the identity of the author; typically, courts demand additional evidence.

Id. at 1004. Accordingly, the Koch Court ruled, "[A]uthentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required." Id. at 1005. In Koch , the Court concluded that testimony presented by the Commonwealth was insufficient to authenticate the text messages in question, noting that there was no testimony from any person who had sent or received the text messages, nor any contextual clues in the drug-related text messages that tended to reveal the identity of the sender. Id. at 1005. On that basis, the Koch Court concluded that the admission of the text messages constituted an abuse of discretion. Id.

In Commonwealth v. Mangel , 181 A.3d 1154 (Pa. Super. 2018) this Court had the opportunity to address authentication of communications made on Facebook and other social media platforms. In addressing these communications, this Court acknowledged the holdings in Interest of F.P. and Koch , and stated the following in determining the authentication of these postings:

In our view, the same authorship concerns, as expressed by the Koch Court in relation to e-mails and instant messages, exist in reference to Facebook and other social media platforms, that can be accessed from any computer or smart phone with the appropriate user identification and password. See Koch , 39 A.3d at 1004 ; see

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