J-S05008-21 No. 636 EDA 2020
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered January 21, 2020
In the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP-46-CR-0008044-2018 BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J. MEMORANDUM BY BOWES, J.:
Theresa Wile appeals from the judgment of sentence of three months of probation, plus the costs of prosecution, imposed after she was convicted of the summary offense of harassment. We affirm.
Succinctly, Appellant's convictions are based upon her sending scores of hostile, expletive-ridden text messages to the victim, with whom she has two children, in between police welfare checks she initiated on the mornings of October 11 and 12, 2018. Appellant was charged with both misdemeanor and summary harassment, but the Commonwealth ultimately proceeded on the summary charge. At the subsequent non-jury trial, the Commonwealth entered the contents of these text messages into evidence through printouts of screenshots that the victim had provided to police. The trial court convicted Appellant of summary harassment and ultimately sentenced Appellant as detailed above.
Appellant timely appealed, and presents the following issues for this Court's review:
1. Whether the admission of photographs of text messages was an abuse of discretion and a misapplication of the best evidence rule as codified by Pennsylvania Rules of Evidence 1002-1004?Appellant's brief at 3 (footnote, unnecessary capitalization, and suggested answers omitted).
2. Whether the admission of photographs of text messages was an abuse of discretion and a misapplication of the rule of completeness as codified by Pennsylvania Rule of Evidence 106?
3. Whether the evidence presented at trial was insufficient to prove beyond a reasonable doubt that [Appellant] had the requisite intent for harassment, the "intent to harass, annoy or alarm?"
4. Whether the court erred in imposing costs of prosecution and supervision fees on [Appellant], an indigent person, absent consideration of her ability to pay?
The following informs our review of Appellant's claims of error. As to Appellant's sufficiency challenge, we bear in mind:
Because a determination of evidentiary sufficiency presents a question of law, our standard of review is de novo and our scope of review is plenary. In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. [T]he facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. It is within the province of the fact-finder to determine the weight to be accorded
to each witness's testimony and to believe all, part, or none of the evidence. The Commonwealth may sustain its burden of proving every element of the crime by means of wholly circumstantial evidence. Moreover, as an appellate court, we may not re-weigh the evidence and substitute our judgment for that of the fact-finder.Commonwealth v. Williams , 176 A.3d 298, 305-06 (Pa.Super. 2017) (citations and quotation marks omitted).
Concerning Appellant's challenge to the imposition of costs of prosecution without first determining her ability to pay them, the issue "implicates the interpretation of the Rules of Criminal Procedure, which presents a question of law. Therefore, our standard of review is de novo, and our scope of review is plenary." Commonwealth v. Lopez , ___ A.3d ___, 2021 WL 1096376 at *1 (Pa.Super. March 23, 2021) (en banc).
After a thorough review of the certified record, the parties' briefs and the pertinent law, we discern no error of law or abuse of discretion on the part of the trial court as to the issues raised by Appellant, and we affirm the judgment of sentence on the basis of the cogent and well-reasoned opinion that Honorable Steven T. O'Neill entered on June 4, 2020.
The certified record does not include the printed copies of the screenshots of Appellant's text messages admitted into evidence at trial. However, Officer James McVeigh read sufficient portions of them on the witness stand to enable our review. --------
Specifically, Judge O'Neill observed that neither the best evidence rule nor the rule of completeness rendered inadmissible of the screenshots of the text messages Appellant sent to the victim, where Appellant did not contend the contents were altered or that portions of the exchange were omitted. See Trial Court Opinion, 6/4/20, at 3-5. The trial court likewise aptly detailed why the law and the evidence, including reasonable inferences therefrom, supported his finding that Appellant sent her voluminous, increasingly-hostile, and threatening profanity-laden messages with the intent to harass her victim rather than for some legitimate purpose. See id. at 6-7 (citing, inter alia, Commonwealth v . Cox , 72 A.3d 719, 722 (Pa.Super. 2013) (holding fact-finder could properly infer from the totality of the circumstances that a Facebook post was made with the intent to harass). See also N.T. Trial, 11/4/19, at 52-63 (reading contents of text messages which patently serve no legitimate purpose). Finally, Judge O'Neill correctly explained that Appellant was not entitled to a hearing on her ability to pay before being sentenced to pay costs, as Pa.R.Crim.P. 706 requires a hearing only before incarcerating a defendant for failure to pay. Id. at 7-8 (citing, inter alia, Commonwealth v . Childs , 63 A.3d 323, 325 (Pa.Super. 2013)). See also Lopez , supra at *5 (reaffirming " Childs ' holding that a that a defendant is not entitled to an ability-to-pay hearing before a court imposes court costs at sentencing"). As to all of the foregoing points, we adopt Judge O'Neill's reasoning as our own.
Judgment of sentence affirmed. Judgment Entered. /s/ _________
Joseph D. Seletyn, Esq.
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