J-A06030-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ELI DANIEL CANGANELLI                      :
                                               :
                        Appellant              :   No. 1204 MDA 2018

         Appeal from the Judgment of Sentence Entered March 19, 2018
                 In the Court of Common Pleas of Adams County
             Criminal Division at No(s): CP-01-CR-0000320-2017


BEFORE:      OTT, J., NICHOLS, J., and PELLEGRINI, J.

MEMORANDUM BY OTT, J.:                                    FILED JULY 19, 2019

        Eli Daniel Canganelli appeals from the judgment of sentence imposed

on June 20, 2018, in the Court of Common Pleas of Adams County, following

his conviction by jury on the charges of Stalking (repeated acts), Stalking

(repeated communications), Unlawful Dissemination of Intimate Image, and

Harassment.1         Canganelli received an aggregate sentence of three to 23

months’ incarceration with a concurrent sentence of five years’ probation. In

this timely appeal, he claims there was insufficient evidence to convict him of

Stalking (both counts) and Unlawful Dissemination.           He also claims his

convictions on those charges were against the weight of the evidence. After

____________________________________________


   Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. §§ 2709.1(a)(1), 2709.1(a)(2), 3131(a), and 2709(a)(5),
respectively.
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a thorough review of the submissions by the parties, relevant law, and the

certified record, we affirm.


       The underlying facts of this matter, as developed at trial, are taken from

the trial court’s August 15, 2018, Pa.R.A.P. 1925(a) opinion.


       [K.H.] (hereinafter “Victim”), had been in a relationship with
       [Canganelli] from January 2015 until April 2016, when the Victim
       ended the relationship. During the course of their relationship,
       the Victim sent [Canganelli] several intimate images of herself.[2]
       [Canganelli] posted one of the images of the Victim on a public
       Facebook page without Victim’s knowledge or permission. Upon
       finding it, the Victim petitioned Facebook to take the image down.
       During late summer 2015, [Canganelli] sent the Victim intimate
       images and nude images of the Victim by text message. The
       Victim was unaware [Canganelli] had taken these photographs
       during their relationship and did not consent to them being taken.
       [Canganelli] told the Victim that he had nude photos of women
       that he used as blackmail.

       On May 20, 2016, after the Victim had ended the relationship, at
       the request of the Victim, McSherrystown police officer Brian
       Wheeler informed [Canganelli] that [he] should not have any
       contact with the Victim, including telephone, face contact or social
       media. [Canganelli] advised Officer Wheeler he understood.
       Despite this warning, [Canganelli] continued to contact the Victim.
       [Canganelli] created a fictitious Facebook account with the name
       “Julie Clayton” and attempted to “friend request” the Victim’s
       Facebook account. [Canganelli] used this account to upload the
       intimate images of the Victim, including the images [Canganelli]
       had taken of the Victim without her consent. The images were
       edited to censor the Victim’s exposed genitalia with pig ears,
       noses and other objects. The Victim’s face was not visible in the
       images but during testimony the Victim identified herself as the
       woman in the images. Detective Beyer testified he viewed the
       “Julie Clayton” Facebook page by searching “Julie Clayton” on

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2While at least one of the photographs depicted K.H. in her underwear, none
apparently were nudes.

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      Facebook without being “friends” with the “Julie Clayton” page and
      observed the intimate images of the Victim.

      Detective Beyer testified he executed a search warrant on
      [Canganelli’s] residence on December 8, 2016 in Adams County
      and located and seized the unedited intimate images of the Victim
      on computers located at [Canganelli’s] residence. Detective Beyer
      testified that he and Special Agent Zahm of the Pennsylvania
      Office of Attorney General conducted a non-custodial interview
      with [Canganelli] on December 8, 2016. [Canganelli] admitted to
      creating the “Julie Clayton” Facebook page and uploading the
      edited intimate images of the Victim to this page. [Canganelli]
      stated he sent friend requests to the Victim’s Facebook page from
      this account to get the Victim’s attention. [Canganelli] admitted
      that law enforcement had previously informed him not to contact
      the Victim.

Trial Court Opinion, 8/15/2018, at 3-5

      Canganelli now claims his convictions for Unlawful Dissemination of

Intimate Images and both counts of Stalking are against the weight and

sufficiency of the evidence. Canganelli does not challenge his conviction of

Harassment.

      Initially, we note the weight of the evidence claim has been waived for

failure to include the issue in the Rule 1925(b) statement of errors complained

of on appeal. Our review of the certified record confirms that the trial court’s

order directing Canganelli to file a Rule 1925(b) statement informed him that

any issues not included in the statement would be considered waived.

Pa.R.A.P. 1925(b)(4)(vii) states,

      Issues not included in the Statement and/or not raised in
      accordance with the provisions of this paragraph (b)(4) are
      waived.

Pa.R.A.P. 1925(b)(4)(vii).


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      Although Canganelli raised his weight of the evidence claim in a post-

trial motion, he did not include the issue in his Rule 1925(b) statement.

Accordingly, pursuant to the directive of Rule 1925, the issue has been waived.

      Next, Canganelli challenges the sufficiency of the evidence from the

same crimes. Our standard of review is well settled:

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for [that of] the fact-
      finder. In addition, we note that the facts and circumstances
      established by the Commonwealth need not preclude every
      possibility of innocence. Any doubts regarding a defendant’s guilt
      may be resolved by the fact-finder 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. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated and all evidence actually received must be
      considered. Finally, the trier of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Baumgartner, 206 A.3d 11, 14 (Pa. Super. 2019)

(citation omitted).

      The elements of the crime of unlawful dissemination of intimate image

are as follows:

      (a) Offense defined.--Except as provided in sections 5903
      (relating to obscene and other sexual materials and
      performances), 6312 (relating to sexual abuse of children) and
      6321 (relating to transmission of sexually explicit images by
      minor), a person commits the offense of unlawful dissemination
      of intimate image if, with intent to harass, annoy or alarm a

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J-A06030-19


       current or former sexual or intimate partner, the person
       disseminates a visual depiction of the current or former sexual or
       intimate partner in a state of nudity or engaged in sexual conduct.

18 Pa.C.S. § 3131(a)


       Nudity is defined in section 59033 as,

       (2) “Nudity” means the showing of the human male or female
       genitals, pubic area, or buttocks with less than a fully opaque
       covering, or the showing of the female breast with less than a fully
       opaque covering of any portion thereof below the top of the nipple,
       or the depiction of covered male genitals in a discernibly turgid
       state.

18 Pa.C.S. § 5903(e).

       The elements of the crime of stalking are as follows:

       (a) Offense defined.--A person commits the crime of stalking
       when the person either:

           (1) engages in a course of conduct or repeatedly commits
           acts toward another person, including following the person
           without proper authority, under circumstances which
           demonstrate either an intent to place such other person in
           reasonable fear of bodily injury or to cause substantial
           emotional distress to such other person; or

           (2) engages in a course of conduct or repeatedly
           communicates to another person under circumstances
           which demonstrate or communicate either an intent to
           place such other person in reasonable fear of bodily injury
           or to cause substantial emotional distress to such other
           person.

18 Pa.C.S. § 2709.1(a)(b).



____________________________________________


3 Section 3131 specifically references the definition of “nudity” as found in
section 5903(e).

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       Regarding Unlawful Dissemination, Canganelli asserts there was

insufficient evidence to prove he intended to “harass, annoy, or alarm” K.H.

and his stated intent was merely to get her attention. Further, there was

insufficient evidence to prove he actually disseminated the images.            Both

claims fail.

       We note that intent is often proved through circumstantial evidence.

       As intent is a subjective frame of mind, it is of necessity difficult
       of direct proof[.][W]e must look to all the evidence to establish
       intent, including, but not limited to, appellant’s conduct as it
       appeared to his eyes [.] Intent can be proven by direct or
       circumstantial evidence; it may be inferred from acts or conduct
       or from the attendant circumstances.

Commonwealth v. Roche, 783 A.2d 766, 768 (Pa. Super. 2001).

       Here, K.H. testified Canganelli told her he used intimate photographs of

women, such as he had surreptitiously taken of her, for blackmail purposes.

Certainly, such a statement can be viewed as intending to cause alarm.

Further, Canganelli was told by both K.H. and the police that she no longer

wanted any contact from him.           Nevertheless, Canganelli continued to post

intimate photos of K.H. as well as a variety of memes4 directed to personal

health issues she had as well as some addressing stalking. All these actions,

viewed in the light most favorable to the Commonwealth as verdict winner,




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4 In the notes of testimony, these are referred to as MIMES. Although the
memes do not depict K.H. in intimate poses, we believe these are relevant in
the totality of the evidence to demonstrate Canganelli’s ill intent.

                                           -6-
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are sufficient to prove Canganelli’s intent to harass K.H and cause her

annoyance and/or alarm.

      The second aspect of this argument is there was insufficient proof

Canganelli disseminated the images.         The evidence clearly proved that

Canganelli posted intimate photographs of K.H. on the internet, which were

accessible to virtually anyone with internet access. Canganelli’s assertion that

there was insufficient evidence to prove he disseminated the images is

meritless. Canganelli is not entitled to relief on this claim.

      Canganelli’s arguments regarding both counts of Stalking are identical;

he argues the Commonwealth did not present sufficient evidence to prove his

intent to cause K.H. substantial emotional distress as required by statute. The

claim fails for the same reasons his prior claim regarding intent failed. In

addition to the actions related above, we also note K.H.’s testimony:

      It was in May after we stopped, after I stopped communicating
      with him, he continued to pursue me daily. He sat outside my
      home. He contacted my work. He would call me from a blocked
      number sometimes 30 times in a day repeatedly. It was my work
      phone so I was unable to use my work phone. I just got to a point
      where I felt it was not going to go away and it seemed to be
      getting progressively more and more often.

N.T. Trial, 12/8/2017 at 39.

      Additionally, K.H. testified,

      I received a friend request on Facebook from a Julie Clayton
      account. When I clicked on the account it was photos of me. I do
      not recall at that time if it was the pink underwear for the profile
      or if the naked photo for the profile but I do recall recognizing
      myself on the account immediately. I was at work. I was
      hysterical. My boss allowed me to discontinue work for the day.

                                      -7-
J-A06030-19


       The account changed I felt by the second. Every time I looked
       there was something new.

Id. at 41.


       Further,

       That is another photo on the account of the pink panties on the
       wall[5] and the profile picture again is me standing in the doorway
       [fully undressed] with a pig snout over my genitals and below that
       is the photo again of me laying in bed [fully undressed with a pig
       snout superimposed over her genitals].

Id. at 49.

       Finally,

       This is on Saturday, May 23, 2016 at 1:59 p.m. He had added to
       the Julie Clayton account several MIMEs [memes]. I had put for
       my profile stalking is a felony and he had added this to the Julie
       Clayton account that it’s only stalking if you get caught. Another
       [meme] on the profile was people think stalkers are creepy but if
       I had a stalker I would feel special. There is another [meme] that
       says this could be us which is a newspaper clipping stating I
       married my stalker but you keep calling the police. There is
       another [meme] that says one does not simply get rid of a stalker.
       I can’t read the bottom.

Id. at 51-52.

       Just as with the claim regarding Unlawful Dissemination, the evidence

presented by the Commonwealth is clearly sufficient to prove circumstantially

Canganelli’s intent to cause substantial emotional distress as required by

statute. Accordingly, Canganelli is not entitled to relief on this argument.


____________________________________________


5 For those unfamiliar with Facebook, “profile” and “wall” as well as “cover”
(not mentioned herein) are locations within an account where images and/or
text may be displayed.

                                           -8-
J-A06030-19


     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/19/2019




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