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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

CHAD EUGENE GINTER

                            Appellant                  No. 451 MDA 2016


           Appeal from the Judgment of Sentence February 24, 2016
              In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0004746-2014
                                        CP-22-CR-0004974-2014



BEFORE: PANELLA, J., OLSON, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                         FILED DECEMBER 09, 2016

        Appellant, Chad Eugene Ginter, appeals from the judgment of

sentence entered in the Dauphin County Court of Common Pleas, Criminal

Division, following his jury trial conviction for theft by unlawful taking or

disposition.1 We affirm.

        The relevant facts of this case as taken from the certified record are as

follows. Tara Nailor, the mother of Appellant’s child, was engaged in an on-

and-off-again relationship with Appellant for approximately six years. On

August 15, 2014, Appellant contacted Ms. Nailor stating that he had taken
____________________________________________



    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3921(a).
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some kettlebells2 from Pure Fitness gym. Appellant had been previously

employed at Pure Fitness, and upon termination, Appellant never returned

his key. Sometime after Appellant told Ms. Nailor about the kettlebells, she

went to the home of Appellant’s mother, where Appellant was living at the

time, to pick him up for a work out. While in the garage, Ms. Nailor saw the

kettlebells.

       Ms. Nailor later spoke with Eric Garonzik, who was part owner of Pure

Fitness and worked there as an exercise physiologist. She asked Mr.

Garonzik if he was missing any kettle bells; he stated that he was—

specifically, he indicated that upon returning to the gym from a month-long

stay in the hospital, he noticed his kettlebells and a three-tier kettlebell rack

with a distinct scratch on it, along with other items, were missing from the

gym. Ms. Nailor told him they were in Appellant’s mother’s garage. Mr.

Garonzik suggested Ms. Nailor contact the police.

       Detective James Moyer received a call from Ms. Nailor explaining that

she had information regarding stolen kettlebells. Detective Moyer and

another detective went to the address given by Ms. Nailor and found a set of

kettlebells and a three-tier kettlebell rack in the garage. Thereafter, Ms.

Nailor took screen shots of text messages she received from Appellant and

____________________________________________


2
  A Kettlebell is a cast iron or cast steel weight used to perform exercises. It
resembles          “a       cannon         ball      with       a      handle.”
https://en.wikipedia.org/wiki/Kettlebell (last visited November 29, 2016).



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sent them to Detective Moyer. The text messages indicated that “Chad”

(Appellant) had messaged Ms. Nailor after the police attempted to contact

him. Appellant stated that Ms. Nailor was “the only person that [Appellant]

would have said anything to [(referring to the kettlebells)]. But let me tell

you this, if so . . . Click.” N.T., Trial, 12/11/15, at 19, 21.

      Procedurally, the Commonwealth filed a criminal complaint against

Appellant, on August 20, 2014, charging him with theft by unlawful taking or

disposition (docketed at CP-22-CR-0004974-2014). Following a jury trial,

Appellant was convicted of the aforementioned charge. On February 24,

2016, Appellant pled “no contest” to another conviction at a separate docket

number (CP-22-CR-0004746-2014). Appellant was sentenced that day at

both dockets to 1 to 5 years’ incarceration with the sentence in the instant

case to run concurrent to the sentence at the other docket. Appellant also

was sentenced, at this docket, to pay a $50.00 fine and costs of the

proceedings, and to return the items to the owner.

      On March 3, 2016, Appellant filed a post-sentence motion arguing that

his sentence was excessive and unreasonable and that his conviction was

against the weight of the evidence. The court denied Appellant relief.

Appellant filed a timely notice of appeal

      In his first issue, Appellant argues the trial court impermissibly

admitted the substance of the text messages into evidence because the

Commonwealth failed to provide any tangible evidence, such as phone


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records corroborating the conversation, to connect Appellant to the text

messages. Appellant also complains that the source of the messages is

questionable. Specifically, Appellant contends Ms. Nailor admittedly wrote

“Chad” as the contact person sending the message, but Appellant posits Ms.

Nailor could have staged the conversation with a friend in order to fabricate

evidence against Appellant. We disagree.

       “Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.” Commonwealth v. Koch, 39 A.3d 996, 1002 (Pa. Super.

2011) (citation omitted).3

       Electronic communications, such as emails and text messages, must

be authenticated. See id., at 1004. Authentication may be by direct or

circumstantial evidence. See id. “[P]roof of any circumstances which will

support a finding that the writing is genuine will suffice to authenticate the

writing.” In re F.P., 878 A.2d 91, 94 (Pa. Super. 2005) (citation and

internal quotation marks omitted). “[T]he foundation . . . may include

factors relating to the contents of the writing and the events before and after
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3
  In Koch, this Court reversed the trial court’s decision to admit the
contested text messages as sufficiently authenticated and not as
inadmissible hearsay. Our Supreme Court accepted the Commonwealth’s
appeal to address the question of the “proper manner in which cell phone
text messages can be authenticated and whether and when such messages
are inadmissible hearsay.” Commonwealth v. Koch, 106 A.3d 705, 706
(Pa. 2014) (per curiam order). Our Supreme Court, being an evenly divided
Court, affirmed the decision of this Court. See id.



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the execution of the writing.” Id. at 95 (citation omitted). The mere fact that

a text message was sent from a particular cellphone with a particular

cellphone number attached to it is inadequate to constitute authentication,

as “cellular telephones are not always exclusively used by the person to

whom the phone number is assigned.” Koch, 39 A.3d at 1005.

      Instantly, after hearing objections and argument on the admissibility

of the text messages, the court provided the following reasons for admission

of the evidence.

      [Mr. Lysaght (counsel for Appellant)]: I do disagree [to the
      admissibility of the text messages], Your Honor. . . .

      [Mr. Corby (counsel for the Commonwealth)]: She will
      authenticate it on the stand. She will say, it was me, I received
      the texts messages, I had this conversation with [Appellant]. In
      the conversation, he actually says I am the one – you are the
      only one I would have told about this, referring to the stealing of
      the kettle bells [sic].

      [Mr. Lysaght]: Presumably.

      [The court]: I think she can testify to it. Now you want more[,
      Mr. Lysaght]. You want the text coming in to be able to
      corroborate what her testimony is. I believe she can testify she
      received the texts and here is what they all said. . . .

N.T., Trial, 12/10/15, at 12-13.

      [Mr. Lysaght]: I would renew my objection to the admissibility of
      the text messages. . . .

                                   *    *    *

      [The court]: Your motion to reconsider is denied. I stand by its
      admissibility based on the proffer as to its identification by the
      person who received the text message, and the context in which
      it was made, plus circumstantial evidence, plan to prove the

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      offer of the text. And noting that this is a text and not an email
      is another factor that we consider and weighed.

                                  *    *    *

N.T., Trial, 12/11/15, at 6-8.

      The record supports the court’s reasoning. Ms. Nailor testified that she

had seen the text messages before trial, the messages came from Appellant,

and the messages came from Appellant’s phone number that he had since

the day Ms. Nailor met Appellant. The content of the text messages, to

which Ms. Nailor testified, reflected Appellant’s concern and dissatisfaction

with Ms. Nailor’s contacting the police regarding the stolen kettlebells. Ms.

Nailor further testified that since the date of the text messages in question,

Appellant has continually contacted her via text message from that number

about their child. Based on the foregoing, the trial court did not abuse its

discretion in admitting the text messages into evidence, as there was

sufficient evidence to authenticate them. See Koch, 39 A.3d at 1002; In re

F.P., 878 A.2d at 95. Thus, Appellant’s first issue merits no relief.

      In his next issue, Appellant avers the testimony of Commonwealth

witness Mr. Garonzik is unreliable. This, Appellant argues, is because Mr.

Garonzik stated he could not distinguish his kettlebells from other

kettlebells, and even though the three-tier kettlebell rack contained the

same scratch as the one found on his rack, Mr. Garonzik conceded that

kettlebell racks are cumbersome and prone to receiving scratches if moved.

Appellant likewise submits the testimony of Commonwealth witness Ms.

Nailor is unreliable because she is biased against Appellant and has a motive

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to fabricate allegations about him because she despises him. Specifically,

Appellant highlights that Ms. Nailor testified she has no loyalty toward

Appellant, that she wanted to “kill” him in the past, and has posted

deleterious remarks about Appellant on Facebook to an audience of 1500

Facebook “friends.” Appellant insists the Commonwealth’s witness testimony

is patently unreliable and establishes that the verdict was against the weight

of the evidence. We disagree.

      The weight of the evidence is exclusively for the finder of fact
      who is free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses. An appellate court
      cannot substitute its judgment for that of the finder of fact.
      Thus, we may only reverse the lower court’s verdict if it is so
      contrary to the evidence as to shock one’s sense of justice.
      Moreover, where the trial court has ruled on the weight claim
      below, an appellate court’s role is not to consider the underlying
      question of whether the verdict is against the weight of the
      evidence. Rather, appellate review is limited to whether the trial
      court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal

citations omitted). A verdict is said to be contrary to the evidence such that

it shocks one’s sense of justice when “the figure of Justice totters on her

pedestal,” or when “the jury’s verdict, at the time of its rendition, causes the

trial judge to lose his breath, temporarily, and causes him to almost fall from

the   bench,   then   it   is   truly   shocking   to   the   judicial   conscience.”

Commonwealth v. Davidson, 860 A.2d 575, 581 (Pa. Super. 2004)

(citations omitted), aff’d, 938 A.2d 198 (Pa. 2007).

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s

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      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotations and citations omitted).

      In its Rule 1925(a) opinion, the court addressed Appellant’s issue as

follows:

      The Commonwealth’s first witness was Tara Nailor, who is the
      mother of one of [Appellant’s] children. Ms. Nailor and
      [Appellant]   had   an    on-again/off-again   relationship for
      approximately six years. She testified that on August 15, 2014,
      [Appellant] had contacted her and said that he had gone to Pure
      Fitness gym and had taken some kettle bells [sic]. Shortly
      thereafter, Ms. Nailor went to [Appellant’s] mother’s home,
      where he was living at the time, to pick [Appellant] up for a
      work out. While in the garage, Ms. Nailor saw the kettle bells
      [sic]. When shown photographs (Exhibits 1 and 2) of kettle bells
      [sic] in a cabinet of [Appellant’s] mother’s garage, Ms. Nailor
      confirmed that they were the ones she observed.

      Ms. Nailor subsequently spoke with Eric Garonzik, who at the
      time worked at Pure Fitness as an exercise physiologist and was
      part owner of the gym. Ms. Nailor knew Mr. Garonzik because he
      was her trainer, and also worked with [Appellant] for a short
      time. She asked Mr. Garonzik if he was missing any kettle bells
      [sic] from Pure Fitness. He said yes. Ms. Nailor told him they
      were in [Appellant’s] mother’s garage. Mr. Garonzik then asked
      Ms. Nailor if she would contact the Swatara Police about it, and
      she responded that she would. According to Mr. Garonzik, he
      terminated [Appellant] from his position at Pure Fitness as a
      trainer, but [Appellant] never returned the key. When Mr.
      Garonzik returned to Pure Fitness after an injury and a month-
      long stay in the hospital, his kettle bells [sic] were missing from
      Pure Fitness.

      Detective James Moyer, who had been assigned to the case,
      confirmed that he had received a call from Ms. Nailor explaining
      that she had information that [Appellant] had stolen kettle bells

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      [sic]. Detective Moyer and another officer went to the address
      given by Ms. Nailor and found a set of kettle bells [sic] [and a
      three-tier kettlebell rack] in the garage.

      In light of the trial testimony, it is clear that an argument that
      the verdict was against the weight of the evidence cannot be
      validated. [Appellant] confessed to his ex-girlfriend that he had
      taken kettle bells [sic] from Pure Fitness, and they were later
      discovered in [Appellant’s] mother’s garage. The jury found the
      testimony of Ms. Nailor, Mr. Garonzik, and Detective Moyer to be
      credible, and the verdict based on such evidence does not shock
      one’s sense of justice.

Trial Court Opinion, filed 7/1/16, at 3-4 (citations to the record omitted).

      The trial court found that the verdict did not shock its sense of justice.

We find no abuse of discretion with this conclusion. The figure of Justice is

firmly rooted to her pedestal in this case. Therefore, Appellant’s claim fails.

      In his final issue, Appellant argues the sentence imposed by the trial

court was excessive and unreasonable, and constitutes too severe a

punishment. Appellant concedes that this claim challenges the discretionary

aspects of Appellant’s sentence. See Appellant’s Brief, at 15.

      “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted).

      An appellant challenging the discretionary aspects of his
      sentence must invoke this Court’s jurisdiction by satisfying a
      four-part test:

      [W]e conduct a four-part analysis to determine: (1) whether
      appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
      and 903; (2) whether the issue was properly preserved at

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      sentencing or in a motion to reconsider and modify sentence,
      see Pa.R.Crim.P. [720]; (3) whether appellant’s brief has a fatal
      defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
      question that the sentence appealed from is not appropriate
      under the Sentencing Code, 42. Pa.C.S.A. § 9781(b).

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted).

      Here, Appellant challenged his sentence in a post-sentence motion and

filed a timely appeal. Appellant’s brief also contains the requisite Rule

2119(f) statement. There, he contends that the sentence imposed by the

trial court “was excessive and unreasonable and constitutes too severe a

punishment” because Appellant’s prior record is comprised of convictions

stemming from the tumultuous relationship he had with Ms. Nailor; the

victim in this case had a heroin addiction that resulted in his death; and

Appellant has learned from his experiences to behave as a law-abiding

citizen. Appellant’s Brief, at 16-17.

      While Appellant argues the sentence imposed by the trial court was

excessive, in substance he argues that the trial court did not adequately

consider the factors of record. Such a claim does not raise a substantial

question for our review. See Commonwealth v. Buterbaugh, 91 A.3d

1247, 1266 (Pa. Super. 2014) (en banc), appeal denied, 104 A.3d 1 (Pa.

2014) (“[A]rguments that the sentencing court failed to consider the factors

proffered in 42 Pa.C.S. § 9721 does present a substantial question whereas

a statement that the court failed to consider facts of record, though


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necessarily encompassing the factors of § 9721, has been rejected.”) Thus,

Appellant’s final challenge to the discretionary aspects of his sentence fails.

      Based on the foregoing, we conclude Appellant’s issues are without

merit. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2016




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