J-S18019-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    ROBERT L. LONGO                            :
                                               :
                       Appellant               :      No. 1812 MDA 2019

        Appeal from the Judgment of Sentence Entered February 8, 2018
                 In the Court of Common Pleas of Snyder County
             Criminal Division at No(s): CP-55-CR-0000404-2016


BEFORE:      KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.:                                  FILED JUNE 23, 2020

        Appellant, Robert L. Longo, appeals from the judgment of sentence

entered in the Snyder County Court of Common Pleas, following his jury trial

convictions for two counts of stalking and one count of witness intimidation.1

We affirm.

        The relevant facts and procedural history of this appeal are as follows.

           Previously, [Appellant] had pled guilty to simple assault and
           terroristic threats, arising out of a January 2016 incident in
           which he physically assaulted his then-wife, Alicia [Durkin].2
           In March 2016, while he was in prison, [Appellant] sent two
           letters to Alicia, conveying threats to her and her family
           from other inmates, detailing physical abuses he had
           suffered in prison, and stating that he did not want a
           divorce. [Appellant] also asked Alicia to tell the District

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*   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 2709.1(a)(1), (2), and 4952(a)(2), respectively.
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       Attorney that she lied (presumably about the assault), and
       stated that he would let “them” kill him if she did not recant.

          2 [Appellant] and Alicia were married on October 2,
          2015. Alicia testified at trial that she and [Appellant]
          were married for approximately one year, but that
          they had been separated for most of that time. Their
          divorce was final at the time of trial.

       In September 2016, after [Appellant] was released from
       prison, and while he was under supervision, Alicia began
       receiving emails from “Anthony Falcone” with an email
       address of TJFalconeMafia1@gmail.com.3, 4 In the emails,
       “Anthony Falcone” threatened to kill [Appellant] if Alicia did
       not respond, or if she told the police about the threats, and
       indicated on several occasions that Alicia was being
       watched. The emails progressed to include threats to Alicia.
       In one email to Alicia, “Anthony Falcone” stated, “You want
       out of the family it’s going to have to be your life.”

          3Alicia’s mother, Kathleen Durkin …, also received
          emails from the TJFalconeMafia1@gmail.com account.

          4   At trial, Alicia testified that [Appellant] had
          previously led her to believe that his family was
          involved in the mafia, and that there had been
          incidents in which [Appellant] threatened her by
          telling her that his cousin Anthony would kill her
          family.    Alicia also testified that she had asked
          [Appellant’s] father whether there was anyone in his
          family named Anthony, and his father replied that
          there was not.

       After receiving information that [Appellant] had violated a
       condition    of    supervision    prohibiting   threatening
       communications, Northumberland County Probation5 made
       contact with Appellant and conducted a search, during which
       two cell phones were recovered.

          5 [Appellant] had originally been placed under the
          supervision of Snyder County Probation. However, as
          [Appellant] was residing in Northumberland County,
          his supervision was transferred to Northumberland
          County Probation.

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          The cell phones were eventually turned over to the
          Selinsgrove Police Department, and the police applied for
          and obtained a search warrant to examine the contents of
          the phones. During the search, the police discovered that
          the TJFalconeMafia1@gmail.com account was set up on one
          of the cell phones. The police saw the messages that had
          been sent to Alicia, and confirmed that the emails that Alicia
          and [Kathleen] Durkin had received were sent from the
          account open on the cell phone.

          Following a jury trial, [Appellant] was convicted of two
          counts of stalking and one count of intimidation of a witness.
          On February 8, 2018, the trial court sentenced [Appellant]
          to concurrent prison terms of 14 months to 5 years for the
          stalking charges, and a consecutive prison term of 16
          months to 7 years for the intimidation of a witness charge.
          The trial court also ordered [Appellant’s] sentence to be
          served consecutively to his Northumberland County
          sentence.

Commonwealth v. Longo, No. 376 MDA 2018, unpublished memorandum

at 1-3 (Pa.Super. filed December 12, 2018) (internal record citations omitted).

        On December 12, 2018, this Court affirmed Appellant’s judgment of

sentence. Specifically, this Court determined that Appellant had waived all

issues due to a defective appellate brief.       Appellant subsequently filed a

petition for allowance of appeal, which the Pennsylvania Supreme Court

denied on August 26, 2019.

        On September 17, 2019, Appellant timely filed a counseled petition

pursuant to the Post Conviction Relief Act (“PCRA”).2 Among other things,

Appellant’s petition argued that prior counsel was ineffective for submitting a


____________________________________________


2   42 Pa.C.S.A. §§ 9541-9546.

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defective appellate brief to the Superior Court. On October 24, 2019, the

PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc.

      Appellant timely filed a notice of appeal nunc pro tunc on October 31,

2019. On November 1, 2019, the court ordered Appellant to file a Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.        Appellant

timely filed his Rule 1925(b) statement on November 12, 2019.

      Appellant now raises two issues for our review:

         WHETHER    [APPELLANT]  WAS    DEPRIVED  OF  HIS
         CONSTITUTIONAL RIGHT TO A FAIR TRIAL BECAUSE THE
         PROSECUTION MADE PREJUDICIAL STATEMENTS TO THE
         JURY DURING CLOSING ARGUMENT WHICH IMPLIED THAT
         [APPELLANT] HAD THE BURDEN OF PROOF.

         WHETHER THE TRIAL COURT ERRED BY PERMITTING THE
         ADMISSION OF EMAILS THAT WERE NOT PROPERLY
         AUTHENTICATED.

(Appellant’s Brief at 6).

      In his first issue, Appellant contends the prosecutor’s closing argument

improperly implied that Appellant bore the burden of proof at trial. Appellant

emphasizes the following comment from the prosecutor: “There’s no Anthony

Falcone. [Appellant] had the opportunity to bring that guy here today but no,

he’s not going to ….” (Appellant’s Brief at 12) (quoting N.T. Trial, 11/28/17,

at 194-95). Appellant insists this comment misled the jury into thinking that

Appellant had the burden of presenting “Anthony Falcone” as a witness, and

Appellant failed to satisfy that burden. Appellant concludes the prosecutor’s

closing argument violated his due process rights, and he is entitled to a new


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trial. We disagree.

       As a prefatory matter, “the lack of a contemporaneous objection

constitutes a waiver of any challenge to the prosecutor’s closing remarks.”

Commonwealth v. Rivera, 603 Pa. 340, 370, 983 A.2d 1211, 1229 (2009),

cert. denied, 560 U.S. 909, 130 S.Ct. 3282, 176 L.Ed.2d 1191 (2010). See

also Pa.R.A.P. 302(a) (providing general rule that issues not raised in trial

court are waived and cannot be raised for first time on appeal).            Here,

Appellant did not object to the prosecutor’s closing argument or seek any type

of curative instruction.3      Consequently, Appellant’s claim is waived in this

appeal.

       In his second issue, Appellant asserts a party seeking to admit evidence

of electronic communications, such as emails, must properly authenticate the

evidence before a court may admit it. Appellant argues the Commonwealth

failed to properly authenticate the emails sent from the “Anthony Falcone”

account to Alicia and Kathleen Durkin, because it did not present evidence to

show that the emails were actually sent from the cell phone that police

recovered from Appellant. Appellant relies on Commonwealth v. Koch, 39



____________________________________________


3 In his counseled PCRA petition, Appellant conceded that trial counsel failed
to object to the prosecutor’s closing argument, and Appellant requested PCRA
relief on this basis. (See PCRA Petition, filed 9/17/19, at ¶ 21). The PCRA
court, however, did not explicitly provide relief on this basis. (See Order, filed
10/24/19, at 1). Moreover, the trial court also determined that Appellant had
waived this claim, albeit due to an impermissibly vague Rule 1925(b)
statement. (See Trial Court Opinion, filed November 20, 2019, at 2).

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A.3d 996 (Pa.Super. 2011), for the proposition that a person’s physical

proximity to a cell phone is not probative of whether that person authored

electronic communications sent from that cell phone.           Further, Appellant

insists the Commonwealth failed to prove that he created the “TJFalcone”

email account. Absent proper authentication of the emails at issue, Appellant

concludes the trial court abused its discretion by admitting the emails into

evidence. We disagree.

      This Court’s standard of review for issues regarding the admissibility of

evidence is well settled:

      Questions concerning the admissibility of evidence are within the
      sound discretion of the trial court . . . [and] we will not reverse a
      trial court’s decision concerning admissibility of evidence absent
      an abuse of the trial court’s discretion. An abuse of discretion is
      not merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will or
      partiality, as shown by the evidence of record. [I]f in reaching a
      conclusion the trial court [overrides] or misapplies the law,
      discretion is then abused and it is the duty of the appellate court
      to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014), appeal

denied, 632 Pa. 667, 117 A.3d 294 (2015) (internal citations and quotation

marks omitted).

      “Relevance    is   the   threshold     for   admissibility   of   evidence.”

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc),

appeal denied, 633 Pa. 787, 128 A.3d 220 (2015).

      Evidence is relevant if it logically tends to establish a material fact
      in the case, tends to make a fact at issue more or less probable,

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       or tends to support a reasonable inference or proposition
       regarding a material fact. Relevant evidence may nevertheless be
       excluded if its probative value is outweighed by the danger of
       unfair prejudice, confusion of the issues, or misleading the jury,
       or by considerations of undue delay, waste of time, or needless
       presentation of cumulative evidence.

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa.Super. 2019), appeal

denied, ___ Pa. ___, 219 A.3d 597 (2019) (internal quotation marks omitted).

       Pennsylvania Rule of Evidence 901 governs the authentication of

evidence as follows:

          Rule 901. Authenticating or Identifying Evidence

             (a) In General. Unless stipulated, to satisfy the
          requirement of authenticating or identifying an item of
          evidence, the proponent must produce evidence sufficient
          to support a finding that the item is what the proponent
          claims it is.

             (b) Examples. The following are examples only—not
          a complete list—of evidence that satisfies the requirement:

             (1) Testimony of a Witness with Knowledge.
          Testimony that an item is what it is claimed to be.

                                       *       *   *

              (4) 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(a), (b)(1), (4).4

____________________________________________


4 On May 20, 2020, the Pennsylvania Supreme Court announced the
amendment of Rule 901(b) to include the following language:




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       “[E]-mails and text messages are documents and subject to the same

requirements for authenticity as non-electronic documents generally.” Koch,

supra at 1004. See also Danzey, supra at 337-38 (explaining Pennsylvania

appellate courts have also considered authentication of computerized instant

messages and communications made on Facebook and other social media

platforms).

          A document may be authenticated by direct proof, such as
          the testimony of a witness who saw the author sign the
          document, acknowledgment of execution by the signer,
          admission of authenticity by an adverse party, or proof that
          the document or its signature is in the purported author’s
          handwriting. A document also may be authenticated by
          circumstantial evidence, a practice which is uniformly
          recognized as permissible.
____________________________________________


             (11) Digital Evidence. To connect digital evidence with
          a person or entity:

                    (A) direct evidence such as testimony of a person
              with personal knowledge; or

                     (B)    circumstantial evidence such as:

                            (i)    identifying content; or

                           (ii)  proof   of  ownership,    possession,
                     control, or access to a device or account at the
                     relevant time when corroborated by circumstances
                     indicating authorship.

In Re: Order Approving the Amendment of Pa. Rule of Evid. 901, No.
841, Supreme Court Rules Docket (Pa. May 20, 2020) (effective Oct. 1, 2020)
(per curiam). The amended comment explains that “Digital evidence” includes
emails, and: “The proponent of digital evidence is not required to prove that
no one else could be the author. Rather, the proponent must produce
sufficient evidence to support a finding that a particular person or entity was
the author.” Id.

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                                    *    *    *

           [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.

Koch, supra at 1004 (internal citations and quotation marks omitted).

        Instantly, Alicia Durkin testified that Appellant had manipulated her with

threats of violence during their marriage. (See N.T. Trial at 100). Specifically,

Appellant claimed to have a cousin named “Anthony Falcone.” (Id.) Appellant

insisted that Anthony was a member of the mafia, and Anthony would do harm

to Alicia or her family if Alicia ever told anyone about Appellant’s misconduct.

(Id.)

        Fearing that Anthony might harm her or her family, Alicia Durkin

contacted Appellant’s father to ask whether Anthony actually existed. (Id. at

101). Alicia’s mother, Kathleen Durkin, was present for Alicia’s conversation

with Appellant’s father. (Id. at 53). Significantly, Appellant’s father denied

that Appellant has a cousin named Anthony. (Id. at 53-54, 101).

        The Commonwealth also introduced several emails sent from the

“TJFalcone” email account to Alicia and Kathleen Durkin. Alicia Durkin began

receiving the emails on September 16, 2016, a few days after Appellant was

released from jail. (Id. at 120, 140). Even though the emails came from the


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“TJFalcone” account, Alicia Durkin testified that the content of the messages

“looked like stuff [Appellant would] say” in prior letters he sent to her. (Id.

at 128, 137). Alicia Durkin also explained that Appellant had a penchant for

creating alter egos to express different aspects of his personality and to

further his ambition of becoming a professional wrestler. (Id. at 104-05).

      Additionally, Kathleen Durkin explained that Alicia Durkin began

forwarding the emails to her.    Kathleen Durkin would read the forwarded

emails, because Alicia Durkin “didn’t want to look at them.”        (Id. at 51).

Kathleen Durkin immediately concluded that “Anthony Falcone” did not exist,

as was apparent from the prior conversation with Appellant’s father. Kathleen

Durkin posited that the emails from “Anthony Falcone” were authored by

Appellant as a way “to make the fear factor stronger” for his prior threats to

Alicia Durkin. (Id. at 145).

      Selinsgrove Police Officer Francis Petrovich testified that he obtained a

warrant to examine the contents of the cell phones that the probation

department recovered from Appellant. Officer Petrovich “did see the e-mail

account     set   up    on     one    of      the   phones   back      to   this

TJFalconeMafia1@gmail.com.” (Id. at 87). Officer Petrovich elaborated on

his investigation during the following exchange on cross-examination:

          [COUNSEL]: Officer Petrovich, there [were] two phones,
          is that correct?

          [WITNESS]:    Yes there was.

          [COUNSEL]:    And which phone sent the e-mails?

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         [WITNESS]:     I would have to recall back [sic] to my report.

         [COUNSEL]: But you can be able to tell which phone sent
         those e-mails, right?

         [WITNESS]:     One   of   the    two       phones   recovered   by
         probation.

                                   *     *      *

         [COUNSEL]: You could tell that that e-mail was written on
         that phone and sent?

         [WITNESS]:     Yes out of one of the two phones, correct.

(Id. at 88-89).

      Although Appellant objected to the Commonwealth’s authentication of

the emails, the trial court determined that the Commonwealth properly

established that Appellant sent the emails using the “TJFalcone” account.

(See Trial Court Opinion at 4).        We agree that sufficient circumstantial

evidence supported the court’s decision, including testimony that: 1) the

content of the emails was similar to that of other letters Alicia Durkin had

received from Appellant; 2) Appellant’s father said that Appellant did not have

a cousin named Anthony Falcone; 3) Appellant had a penchant for creating

alter egos; and 4) police connected the emails to the account on Appellant’s

cell phone.    Compare Koch, supra at 1005 (emphasizing detective’s

testimony regarding his transcription of text messages from defendant’s cell

phone was insufficient to authenticate defendant as author; Commonwealth

did not present testimony from persons who received messages, and


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messages did not include context clues tending to reveal sender’s identity).

Under these circumstances, the trial court did not abuse its discretion by

admitting   Appellant’s   emails   into   evidence.   See   Belknap,   supra.

Accordingly, we affirm the judgment of sentence.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/23/2020




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