Commonwealth v. Hatziefstathiou
|Superior Court of Pennsylvania
|COMMONWEALTH OF PENNSYLVANIA v. NIKOLAOS HATZIEFSTATHIOU Appellant
|2590 EDA 2021
|15 September 2022
Nikolaos Hatziefstathiou (Appellant) appeals from the judgment of sentence entered in the Court of Common Pleas of Delaware County (trial court) after a jury found him guilty of tampering with public records or information, forgery (two counts), identity theft (two counts) and unsworn falsification (three counts). After review, we affirm.
This case arose out of a prior criminal case in which Appellant was placed on probation after pleading guilty to false reports and harassment. In that case, Appellant harassed his neighbor by sending escorts to the neighbor's home and then calling 911 to report suspicious activity. Apparently unhappy with how he was treated while on supervision, Appellant sought to get back at the county while at the same time boosting both his profile as a journalist and that of his online news website called "YC News."
Appellant's conduct began in April 2019 when he sent a series of emails to the Delaware County District Attorney's Office (DAO). In the emails, Appellant sought comment about an allegedly forthcoming report from YC News about a "decades long scheme" among Delaware County officials engaging in various forms of illegal behavior. After getting no real response from the DAO, Appellant shifted his strategy by creating Microsoft Outlook email accounts for two established journalists from ABC News and the New York Times, both of whom later testified at trial. While pretending to be the journalists, Appellant sent another barrage of emails seeking comment not only about the allegedly forthcoming report from YC News, but also about an alleged audio recording in which a police detective harassed Appellant. When the DAO alerted the Delaware County Criminal Investigative Division (CID) about the emails, Detective Edmund Pisani (Detective Pisani) contacted the journalists and confirmed that they did not send them. Detective Pisani also applied for and obtained a search warrant for Microsoft to provide records for the email accounts. Upon receiving those records, Detective Pisani discovered that the fake email accounts for the journalists originated from Appellant's home IP address.
The next month, Appellant's strategy shifted to concocting a news story about a Delaware County probation supervisor sending a racist email. The story was titled, "Racist high-ranking official tells friend he'll have 'airtight job security so long as there's [n--------] in town." The story alleged that YC News had obtained an email sent in 2015 by a "high-ranking" probation supervisor to several other county officials about an individual intending to apply to the department but being told they would need to change their political party registration. According to the story, YC News had obtained the email from a probationer that was "accidentally carbon copied" to the email.
The email, as it appeared in the news story, read as follows:
Commonwealth's Exhibit 37 (epithet redacted; other redactions in original).
After the story was posted, the Delaware County IT Department searched its servers to determine if the email was genuine. To do this, they searched for any emails that contained the same terms used in the offensive email. When searching for emails containing the "n" word, there were over 3,000 results, although this included anytime the word was mentioned in a court transcript. However, when the additional search term "gangbangs" was added to the search, the IT Department found no results.
Not long after, CID obtained a search warrant for Appellant's home. While searching his bedroom, CID discovered a paper copy of an email sent by a probation supervisor in the prior case that appeared to serve as the template for the email in the YC News story. CID also seized Appellant's cell phone and laptop from the car that Appellant was driving. After doing so, CID conducted a forensic examination of the devices. That examination revealed that Appellant's laptop was used not only to create the fake email accounts for the journalists, but also to alter the email from the prior case to create the racist email posted in the news story.
Appellant was charged with the offenses mentioned above and went to trial in October 2021. While Appellant did not testify, his defense counsel conceded that Appellant sent the emails posing as the journalists but argued that his doing so constituted neither identity theft nor unsworn falsification. As for the altered email, defense counsel conceded that Appellant's laptop was used to create the email but disputed that the Commonwealth proved it was Appellant who did so. However, even if Appellant altered the email, defense counsel asked the jury to infer that the YC News story was true: that a probationer inadvertently received a racist email from a probation supervisor and served as the source for the news story. Under this theory, Appellant then merely created the email to serve as an illustration for the news story to show how the email would have looked.
The jury found Appellant guilty of all charges, and the trial court sentenced him to an aggregate two to four years' imprisonment with a consecutive five years' probation. He did not file any post-sentence motions but timely appealed. While his statement of the questions involved raises twelve issues, Appellant raises five principal issues in the argument section of his brief. He asserts that the trial court (1) improperly allowed prior bad acts evidence; (2) violated his right to a public trial; (3) improperly admitted evidence obtained without a warrant; (4) barred him from introducing evidence about the IT Department's search of emails; and (5) imposed an unduly harsh sentence.
Appellant first contends that the trial court erred in allowing the Commonwealth to admit evidence that he used the "n" word during the commission of his prior case. He advances two arguments for relief on this issue. First, he challenges the pretrial ruling that the evidence was admissible under Pa.R.E. 404(b), arguing that any relevance the evidence had for a permissible other purpose was outweighed by its potential for unfair prejudice. Second, he argues that the Commonwealth used inadmissible hearsay to prove that he uttered the slur. Because we agree with his second argument, we confine our analysis to that argument.
We begin with some background on this issue. In its notice under Pa.R.E. 404(b), the Commonwealth alleged that Appellant harassed his neighbor in May 2015 by using a website called "Backpage" to call escorts to the neighbor's home and then calling 911 to report the activity. See 404(b) Notice, 6/29/21, ¶ 2. The Commonwealth alleged that during one of these incidents, Appellant "used racial slurs." Id. As was later admitted at trial, Appellant said: "I like to watch [n -------- ] get locked up and more [n -------- ] are going to get in trouble." N.T., 10/19/21, at 43. After a pretrial hearing on the issue, the trial court found that the prior conviction and its facts were "permissible to establish motive, plan, intent, preparation, knowledge and absence of mistake" because Appellant's offenses arose out his previous supervision. See Order, 8/31/21, at 1 n.1.
At trial, the Commonwealth did not call anyone involved in the prior case, instead relying on Detective Pisani to testify about what Appellant did in the prior case. See N.T., 10/19/21, at 39-41. When Detective Pisani was asked about "what would happen when these escorts would arrive at the neighbor's house," Appellant objected on hearsay grounds but was overruled:
This was not the end of the matter, however. On cross-examination, Appellant clarified that Detective Pisani was not involved in the prior case. Indeed, he acknowledged that he was relying on the police report from that case for his testimony that Appellant had used the slur.
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