J-S60028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

ERIC TROY FUEHRER

                            Appellant                 No. 2293 EDA 2015


             Appeal from the Judgment of Sentence June 29, 2015
             In the Court of Common Pleas of Montgomery County
              Criminal Division at No(s): CP-46-CR-0007839-2013


BEFORE: SHOGAN, J., OTT, J., and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                             FILED OCTOBER 03, 2016

        Eric Troy Fuehrer appeals from the judgment of sentence imposed on

June 29, 2015, in the Court of Common Pleas of Montgomery County,

following his conviction by jury on the charges of aggravated assault,

conspiracy to commit aggravated assault and simple assault.1 He received

an aggregate sentence of 11 to 22 years’ incarceration followed by five years

of probation. In this timely appeal, Fuehrer raises one issue; he claims the

trial court erred in admitting into evidence a text message purportedly from

Fuehrer, without proper authentication.        After a thorough review of the

submissions by the parties, relevant law, and the certified record, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 2702(a)(1), 903(a)(1), and 2701(a)(1), respectively.
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         The evidence presented at trial demonstrated Fuehrer and co-

defendant, Eric William Dunn, assaulted the victim, Christopher Thomas, on

the evening of October 2, 2013 on a sidewalk in Norristown, Pennsylvania.

Thomas was severely injured, suffering multiple facial fractures and loss of

teeth.     Thomas was airlifted from Mercy Suburban Hospital to Jefferson

Medical Hospital, in Philadelphia, for treatment. Thomas identified both men

as his assailants, and both men were arrested later that night.

         An independent witness, Brenda Nixon, who coincidentally works for

the Montgomery County District Attorney’s Office, witnessed what she

believed to be an assault while on her way home from work. She testified

she saw two men who appeared to be kicking someone or something on the

ground. She could not tell what the object of the violence was because of

the parked cars at the curb. Nonetheless, she was worried enough to call 9-

1-1 and report the incident.

         By the time the police arrived, shortly after Nixon’s call to 9-1-1, all

they found at the site was a pool of blood and the blood-stained hood of a

car immediately nearby.

         Two other eyewitnesses testified, both of whom identified Dunn as the

sole assailant. The first of these witnesses, Deborah Thomas, testified she

did not witness the entire assault, but only came out onto the street after

hearing a commotion.        Deborah Thomas is the victim’s sister.      Deborah




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Thomas also testified that shortly after the assault, she confronted Fuehrer,

accusing him of “pointing the finger at her brother”. 2      Deborah Thomas

testified Fuehrer replied that he had “no control over his workers.”3 Thomas

further testified Fuehrer, shortly before the assault, had asked her to sell

drugs for him.

          The second eyewitness, was Tanea Jones.       Her relationship with

Fuehrer is unclear.4 She testified that she, Dunn and Fuehrer were sitting on

the front steps of her apartment building in Norristown, when Thomas

walked by and went into the next-door building. Jones claimed she did not

know Thomas, but had seen him around the neighborhood and referred to

him as the “the guy with the big eyes.”5 When Thomas left the next-door

building shortly thereafter, he said something to Dunn and then attempted

to punch Dunn in the face. The two men then fought briefly, Thomas had a

bloody mouth, but no one kicked Thomas. Fuehrer’s only participation in the

event was to pull Dunn away from the fight.




____________________________________________


2
    See Trial Court Opinion, 9/23/2015, at 4; N.T., 2/10/2015, at 121.
3
    Id.
4
 At various points in the certified record, she claimed not to be related to
Fuehrer or to have been a cousin, step-cousin, or play cousin of Fuehrer.
See N.T. Trial, 2/10/2015, at 250-251.
5
    Id. at 241.



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       Mako Henderson, Christopher Thomas’s nephew, testified he was not

at the scene of the fight, but received a phone call informing him his uncle

was being beaten. He immediately left to go to the scene. When he arrived,

no one was there, so he then went to his uncle’s residence. When he arrived

there he saw his uncle had been beaten, was bleeding from his face and

mouth, and his face was swollen.               He then drove his uncle to Suburban

Mercy Hospital.       Henderson knew Dunn and was childhood friends with

Fuehrer. Henderson described two text messages he received from Fuehrer.

The first was dated September 15, 2013 and said, “I thought we had an

understanding.”       Henderson believed this message referred to Fuehrer’s

attempt to have Henderson sell drugs for him.

       The second text message is the subject of this appeal. That message

was sent from Fuehrer’s cell phone almost immediately after the assault and

stated,
      I told u I got love for u like a brother. But it’s a green light on
      the rest of your team and its out of. [sic] My hands :(

See N.T. Trial, 2/10/2015 at 192; Commonwealth Exhibits 8 and 9. 6

       We note that there was no dispute that the cell phone in question was

Fuehrer’s; Norristown Police Corporal testified Fuehrer gave him the

passcode to unlock the cell phone and to read the text messages.


____________________________________________


6
  Exhibits 8 and 9 are photocopies of Fuehrer’s cell phone showing the
message sent and Henderson’s cell phone showing the same message
received.



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       Fuehrer has not argued the text message in question did not come

from his phone. Rather, he argues the Commonwealth provided insufficient

evidence of authentication that he authored the message. Accordingly, he

claims the trial court erred in admitting the text message into evidence.

       The often-repeated standard of review concerning a challenge to the

admission of evidence is:

       [I]n reviewing a challenge to the admissibility of evidence, we
       will only reverse a ruling by the trial court upon a showing that it
       abused its discretion or committed an error of law.... To
       constitute reversible error, an evidentiary ruling must not only
       be erroneous, but also harmful or prejudicial to the complaining
       party.

Commonwealth v. Schley, 136 A.3d 511, 515 (Pa. Super. 2016) (citation

omitted).

       Specifically addressing the text messages, our courts have held:

       [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.

Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) (citation

omitted), aff’d, 103 A.3d 705 (Pa. 2014) (per curiam).7

       Here, the trial court determined there was sufficient circumstantial

evidence to support the admission of the text message into evidence. Our

____________________________________________


7
 The Superior Court decision was affirmed by an evenly divided Supreme
Court.



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review of the certified record finds no abuse of discretion in that

determination.

      In Koch, the Commonwealth introduced a text message from a cell

phone that had admittedly been used by people other than the defendant.

Many of the text messages sent in proximity to the texts in question were

clearly sent by others. While the text messages at issue were relevant in

that they referred to drug dealing, there was nothing inherent about the

messages to lead an observer to believe the defendant had authored them.

Accordingly, in reversing the trial court, our Court held that other indicia

were required to authenticate a text message.

      In the instant matter, there was no indication anyone other than

Fuehrer used his phone. The phone required a passcode; Fuehrer possessed

that code and gave that code to the police so they could view the text

messages.     See N.T. Trial, 2/10/2015, at 165-66.      Most importantly,

Henderson, who received the message, believed it came from Fuehrer and

explained the context in which the message was sent, received and

understood. That is, Fuehrer wanted Henderson and his “team” to sell drugs

for him and Fuehrer would not protect anyone other than Henderson from

the consequences of not selling drugs.      It must be remembered that

Henderson’s aunt, Deborah Thomas also testified that Fuehrer asked her to

sell drugs for him.

      Further, we note the language of the message indicates it was sent

from a person who had a past relationship with Henderson, saying the two

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men were like brothers; Henderson and Fuehrer had been friends since

childhood.

      The message at issue was undeniably sent from Fuehrer’s phone and

the nature of the message is a veiled threat from someone who knew

Henderson well.   There is no evidence in the record of any person, other

than Fuehrer, who knew Henderson well and who had reason to issue such a

threat.

      Contrary to Fuehrer’s assertion, our review of the certified record

demonstrates there was sufficient circumstantial evidence to authenticate

the text message as having been authored by Fuehrer. Therefore, the trial

court neither abused its discretion nor committed an error of law in

admitting the text message into evidence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/2016




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