J-S67018-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JARED DANIEL SWARNER                       :
                                               :
                       Appellant               :   No. 1031 MDA 2019

          Appeal from the Judgment of Sentence Entered May 14, 2019
    In the Court of Common Pleas of Cumberland County Criminal Division at
                       No(s): CP-21-MD-0000097-2019


BEFORE:      OLSON, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.:                            FILED DECEMBER 24, 2019

        Appellant, Jared Daniel Swarner, appeals from the May 14, 2019

Judgment of Sentence entered in the Cumberland County Court of Common

Pleas following his conviction of Contempt for Violation of Order or Agreement

(“Indirect Criminal Contempt” or “ICC”).1 On appeal, Appellant challenges the

weight and sufficiency of the evidence. After careful review, we affirm.

        The facts and procedural history are, briefly, as follows. On February

15, 2017, the trial court issued a protection from abuse (“PFA”) order against

Appellant prohibiting him from “abusing, stalking, harassing, or threatening

____________________________________________


*   Former Justice specially assigned to the Superior Court.

123 Pa.C.S § 6114(a) (“Where the police, sheriff or the plaintiff have filed
charges of indirect criminal contempt against a defendant for violation of a
protection order issued under this chapter . . . or a court-approved consent
agreement, the court may hold the defendant in indirect criminal contempt
and punish the defendant in accordance with law.”).
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[the victim] and . . . from having any contact with the victim, directly, or

indirectly, at any location through any means, including third parties.” Order,

2/15/17. The Order expires on February 15, 2020.

       On February 12, 2019, the Commonwealth filed a Complaint against

Appellant for ICC alleging that Appellant had sent the victim Facebook

messages on ten separate occasions between December 7, 2018, and January

14, 2019.

       The court held a hearing on the Complaint on April 2, 2019.         The

Commonwealth presented the testimony of the victim and Pennsylvania State

Police Trooper Amy Kocher.           Appellant presented the testimony of Bryan

Gembusia, who the court qualified as an IT security and infrastructure expert.

Following the hearing, the trial court found that Appellant had violated the

February 15, 2017 PFA Order by sending the victim two Facebook messages

using the name “Jared Weidner,”2 and convicted him of ICC. In particular,

the court convicted Appellant of sending one message stating: “I won’t lose




____________________________________________


2The victim explained that Appellant’s grandmother’s last name is “Weidner,”
and that, during the course of the relationship between the victim and
Appellant, Appellant had used the last name “Weidner.” N.T., 4/2/19, at 8-9.
She further explained that, when she received the messages from “Jared
Weidner” she believed it was associated with Appellant.           Id. at 9.
Furthermore, a photograph attached to the messages the victim received was
of Appellant. Id. at 36.




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her. I will beat her to keep her from leaving,” and one stating: “She is not

going anywhere. You can go to hell and die. Should have beat you hard.”3

       On May 14, 2019, the court sentenced Appellant to six months of

probation and imposed a $300 fine.

       On May 24, 2019, Appellant filed a Post-Sentence Motion challenging

the sufficiency of the evidence in support of his conviction. In particular, he

asserted that the Commonwealth failed to present sufficient evidence to

establish Appellant’s identity as the sender of the offending two Facebook

messages.      Post-Sentence Motion, 5/24/19, at ¶¶ 6, 11.      Appellant also

challenged the weight of the evidence. On May 28, 2019, the trial court denied

Appellant’s Motion.

       This timely appeal followed. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.

       Appellant raises the following issues on appeal:

       1. Whether the evidence was insufficient to sustain the verdict of
          guilt?

       2. Whether the verdict was against the weight of the evidence?

Appellant’s Brief at 4.

       In his first issue, Appellant claims that the Commonwealth’s evidence

was insufficient to support his conviction of ICC. Id. at 20.



____________________________________________


3 The victim received these messages on January 13, 2019. N.T, 4/2/19, at
14-15. Appellant’s expert witness testified that these messages were sent
from the IP address associated with Appellant. Id. at 71.

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      In reviewing the sufficiency of the evidence, our standard of review is

as follows:

      The standard of review for a challenge to the sufficiency of the
      evidence is to determine whether, when viewed in a light most
      favorable to the verdict winner, the evidence at trial and all
      reasonable inferences therefrom is sufficient for the trier of fact to
      find that each element of the crimes charged is established beyond
      a reasonable doubt. The Commonwealth may sustain its burden
      of proving every element beyond a reasonable doubt by means of
      wholly circumstantial evidence.

      The facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. Any doubt raised
      as to the accused's guilt is to be resolved by the fact-finder. As
      an appellate court, we do not assess credibility nor do we assign
      weight to any of the testimony of record. Therefore, we will not
      disturb the verdict unless the evidence is so weak and inconclusive
      that as a matter of law no probability of fact may be drawn from
      the combined circumstances.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(citations and quotation marks omitted).

      In Commonwealth v. Baker, 766 A.2d 328 (Pa. 2001), our Supreme

Court set forth four elements that the Commonwealth must establish to

support a claim of ICC of a PFA order. Specially, the Commonwealth must

prove that:

         1) The [PFA] order must be definite, clear, specific and leave
         no doubt or uncertainty in the mind of the person to whom
         it was addressed of the conduct prohibited;

         2) The contemnor must have had notice of the specific [PFA]
         order or decree;

         3) The act constituting the violation must have been
         volitional; and

         4) The contemnor must have acted with wrongful intent.


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Id. at 331.

      In support of his claim, Appellant first alleges that the Commonwealth

failed to introduce the PFA Order as an exhibit at trial. Appellant concludes,

therefore, that the Commonwealth failed to prove that the terms of the Order

were sufficiently definite, clear, and specific as to the conduct prohibited.

Appellant’s Brief at 21. Appellant also asserts that the Commonwealth failed

to offer testimony or evidence that Appellant had notice of the PFA Order. Id.

at 21-22

      At Appellant’s trial, the Commonwealth did not introduce the PFA Order

as an exhibit. However, the court took judicial notice of it and observed that

“there is no real issue” regarding its existence and validity. N.T., 4/2/19, at

79.

      Moreover, the Commonwealth established the existence of the PFA

Order though the testimony of the victim and Trooper Amy Kocher.            In

particular, the victim testified, without objection, that she has an active PFA

Order against Appellant that precludes Appellant from having contact with her.

N.T., 4/2/19, at 8.    In her testimony, the victim also referred, without

objection, to prior PFA proceedings in which Appellant participated, thus

establishing that Appellant had notice of the PFA Order. Id. at 10. Trooper

Kocher testified, without objection, that the victim informed her that she had

a no-contact PFA Order against Appellant and Trooper Kocher verified that the

Order was in effect at the time the victim received the Facebook messages.

Id. at 35, 37.   Trooper Kocher also testified that, prior to arriving at the

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victim’s residence, she searched the police database to ascertain whether

anyone had reported previous incidents at the victim’s address and learned

that there were several prior PFA violations, and several occasions resulting

in charges being filed and subsequently dismissed. Id. at 36-37. Thus, we

conclude that the Commonwealth’s uncontested evidence was sufficient to

establish the existence of the PFA Order and Appellant’s knowledge of it.

      Next, Appellant claims that the Commonwealth’s evidence was

insufficient to establish his identity as the sender of the Facebook messages

because the Facebook messages did not contain sufficient corroborating or

“contextual clues” revealing the sender’s identity. Appellant’s Brief at 26-27.

      The evidence presented at the PFA hearing, viewed in the light most

favorable to the Commonwealth as the verdict-winner, established that the

Appellant’s photograph accompanied the Facebook messages sent to the

victim. N.T. at 36. Trooper Kocher testified that, in an effort to identify the

messages’ sender, she contacted Facebook through its emergency law

enforcement page.    Id. at 37.   Facebook provided her with an IP address

identifying the address from which the messages originated. Id. at 37-38.

Trooper Kocher then obtained a search warrant for Facebook, requesting it

provide the full text logs of all messages sent from the account bearing

Appellant’s photograph.    Id. at 38.    Facebook complied with the search

warrant and provided Trooper Kocher with messages, which matched the

messages received by the victim. Id. at 39.




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       Trooper Kocher also ascertained that Frontier Communications provided

the IP address from which the “vast majority” of the Facebook messages had

been sent, which revealed that the IP address belonged to Appellant.4 Id. at

38, 42-43. Frontier Communications also revealed that the registered address

on the account held by Appellant is Appellant’s address. Id.

       At   the   close   of   the   hearing,    the   trial   court   found   that   the

Commonwealth’s evidence proved beyond a reasonable doubt that it was

Appellant who had sent the victim two Facebook messages on January 13,

2019 and, thus, violated the PFA Order. Id. at 71-72. We agree with the trial

court. Our review of the Notes of Testimony indicates that the Commonwealth

presented sufficient direct and circumstantial evidence that it was Appellant

who had sent the Facebook messages to the victim in violation of the PFA

Order, including evidence that: (1) the two January 13, 2019 Facebook

messages were sent directly from the Frontier Communications IP address

associated with the account registered to Appellant; (2) the messages

referenced Appellant’s current girlfriend and his prior relationship and PFA

proceedings with the victim; (3) the sender of the two Facebook messages

used the last name “Weidner,” Appellant’s grandmother’s last name; and (4)

the farm in the photograph of “Jared Weidner’s” account belongs to Appellant.

Accordingly, we conclude that the trial court did not abuse its discretion when
____________________________________________


4 While the messages originated from a total of four different IP addresses,
the messages the court convicted Appellant of sending originated from the
Frontier Communications IP address associated with the account registered to
Appellant. N.T., 4/2/19, at 45, 50.

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it determined that it was Appellant who had sent the messages and, thus,

violated the PFA Order.

         In his second issue, Appellant challenges the weight the court gave to

the Commonwealth’s evidence.        Appellant’s Brief at 30-41.   In particular,

Appellant argues that the victim had attempted to incriminate him falsely and

was not a credible witness. Id. at 34. He also argues that the court did not

sufficiently credit his expert’s testimony. Id. at 35-37. Last, he argues that

the fact that the Commonwealth had previously withdrawn or dismissed ICC

charges against him was exculpatory evidence ignored by the trial court. Id.

at 39.

         When considering challenges to the weight of the evidence, we apply

the following precepts.     “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).

Resolving contradictory testimony and questions of credibility are matters for

the finder of fact.    Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.

Super. 2000). It is well-settled that we cannot substitute our judgment for

that of the trier of fact. Talbert, supra at 546.

         Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

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“Because the trial judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing a trial court’s

determination that the verdict is [or is not] against the weight of the

evidence.” Id. at 546 (citation omitted). “One of the least assailable reasons

for granting or denying a new trial is the lower court’s conviction that the

verdict was or was not against the weight of the evidence and that a new trial

should be granted in the interest of justice.” Id. (citation omitted).

      Furthermore, “[i]n order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Id. (internal quotation

marks and citation omitted). As our Supreme Court has made clear, reversal

is only appropriate “where the facts and inferences disclose a palpable abuse

of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(citations and emphasis omitted).

      “[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014) (citation omitted). For that reason, the trial court need not view the

evidence in the light most favorable to the verdict winner, and may instead

use its discretion in concluding whether the verdict was against the weight of

the evidence.   Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa.

2000).

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      The trial court explained the weight it gave to the evidence on the record

following Appellant’s hearing as follows:

      Mr. Gembusia is credible. Trooper Kocher is credible. The victim
      may not be one hundred percent credible, but she doesn’t have to
      be one hundred percent credible. She was sufficiently credible on
      the two [] messages in question, and I find that those are
      sufficient.

N.T. at 81.

      Appellant essentially asks us to reassess the court’s determination of

credibility of the victim, and to reweigh the testimony and evidence presented

at trial. We cannot and will not do so. Our review of the record shows that

the evidence is not tenuous, vague, or uncertain, and the verdict was not so

contrary to the evidence as to shock the court’s conscience. Accordingly, we

discern no abuse of discretion in the trial court’s denial of Appellant’s weight

claim. Appellant is, therefore, not entitled to relief on this claim.

      Judgment of Sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/24/2019




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