J-S72027-18

                                   2019 PA Super 152

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SHAUNTELL BREE DANZEY                      :
                                               :
                       Appellant               :   No. 477 MDA 2018

           Appeal from the Judgment of Sentence February 27, 2018
     In the Court of Common Pleas of Dauphin County Criminal Division at
                       No(s): CP-22-CR-0005515-2016


BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

OPINION BY SHOGAN, J.:                                      FILED MAY 9, 2019

       Appellant, Shauntell Bree Danzey, appeals from the judgment of

sentence entered on February 27, 2018, in the Court of Common Pleas of

Dauphin County. We affirm.

       The trial court summarized the factual history of this case as follows:

       [T]he instant case arose out of a love triangle involving
       [Appellant], her former boyfriend (Anthony Bowers), and
       [(“Victim”)], who began dating Bowers sometime after [Appellant]
       and Bowers had ended their relationship. At some point after
       [Victim] began dating Bowers, various social media accounts,
       which bore profile pictures of [Appellant] or other details that
       suggested [Appellant’s] account ownership and control, began
       publishing derogatory, sometimes threatening posts referencing
       and occasionally “tagging” [Victim]. [Victim] showed these posts
       to her sister, [], whom the Commonwealth used at trial to
       introduce 16 photographic exhibits of the harassing posts that
       [Victim], prior to her death,[1] began collecting after a no-contact
       order was put into place between [Victim] and [Appellant].

Trial Court Opinion, 5/8/18, at 1-2 (internal citations omitted).
____________________________________________


1   Victim died in an automobile accident on December 26, 2016.

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       At trial, Officer Matthew Gallup testified that he responded to a call

placed by Victim to the Harrisburg Police Department on September 20, 2016.

N.T., 8/15/17, at 131. At the time of their meeting, Victim told Officer Gallup

that she was being harassed by Appellant through various social media

accounts, despite the fact that a no-contact order was in place between Victim

and Appellant.       Id. at 132-133.           During that meeting, Victim showed

Officer Gallup hard copies of the relevant social media posts, as well as posts

still viewable on Victim’s phone. Id. As a result, Appellant was charged by

criminal information filed September 20, 2016, with one count of stalking 2 and

one count of terroristic threats. On November 17, 2016, the Commonwealth

filed an amended information, removing the terroristic threat charge and

adding a harassment3 charge.

       Prior to commencement of trial, Appellant filed a motion in limine on

August 14, 2017, seeking to exclude the introduction of sixteen electronic

communications, including Facebook and Instagram posts, that were of a

vulgar, derogatory, and sometimes threatening nature, directed at Victim.

The motion in limine was denied by order of court entered August 14, 2017.

The matter proceeded to a two-day jury trial on August 14-15, 2017. At the

conclusion of the trial, Appellant was convicted of both charges. Appellant

was sentenced on February 27, 2018, to an aggregate term of eleven and

____________________________________________


2   18 Pa.C.S. § 2709.1(A)(2).

3   18 Pa.C.S. § 2709(A)(4).

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one-half months to twenty-three months of incarceration, followed by two

years of probation.       Appellant filed a notice of appeal on March 15, 2018.

Appellant and the trial court complied with Pa.R.A.P. 1925.

      Appellant presents the following issues for our review:

      I.    In a prosecution for harassment and stalking, did not the
            trial court err in admitting various social media
            communications and related testimony when the
            Commonwealth failed to authenticate such evidence under
            Pa.R.E. 901 by establishing [Appellant’s] authorship of such
            communications?

      II.   In a prosecution for harassment and stalking, did not the
            trial court err in admitting an irrelevant social media
            communication (Exhibit 16) that was posted after the
            purported [V]ictim died?

Appellant’s Brief at 4.

      In her first issue, Appellant argues that the trial court erred in admitting

the social media communications and related testimony because the

Commonwealth failed to authenticate this evidence pursuant to Pa.R.E. 901

by establishing Appellant’s authorship of these communications. Appellant’s

Brief at 16. Appellant asserts that there is no direct evidence that Appellant

authored the posts. Id. at 24. Appellant further maintains that her authorship

cannot be established circumstantially because there are no context clues that

prove her to be the author. Id. Appellant also contends that to the extent

the Commonwealth admitted the social media communications to prove the

truth of the matters asserted therein, the communications were inadmissible

hearsay. Id. at 25.


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      Our standard of review of a denial of a motion in limine is as follows:

      When ruling on a trial court’s decision to grant or deny a motion
      in limine, we apply an evidentiary abuse of discretion standard of
      review. The admission of evidence is committed to the sound
      discretion of the trial court, and a trial court’s ruling regarding the
      admission of evidence will not be disturbed on appeal unless that
      ruling reflects manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support to be clearly erroneous.

Commonwealth v. Moser, 999 A.2d 602, 605 (Pa. Super. 2010) (citation

omitted).

      Pursuant to Pennsylvania Rule of Evidence 901, authentication is

required prior to admission of evidence. The proponent of the evidence must

introduce sufficient evidence that the matter is what it purports to be. Pa.R.E.

901(a). Testimony of a witness with personal knowledge that a matter is what

it is claimed to be can be sufficient. Pa.R.E. 901(b)(1). Evidence that cannot

be authenticated by a knowledgeable person, pursuant to subsection (b)(1),

may   be    authenticated   by    other     parts   of   subsection   (b),   including

circumstantial evidence pursuant to subsection (b)(4).            Pa.R.E. 901(b)(4).

Under Rule 901(b)(4), evidence may be authenticated by “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(b)(4).

      Pennsylvania    appellate    courts     considered    the   authentication    of

computerized instant messages and cell phone text messages in In the

Interest of F.P., a Minor, 878 A.2d 91, 96 (Pa. Super. 2005) (addressing


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computerized instant messages), and Commonwealth v. Koch, 39 A.3d 996,

1005 (Pa. Super. 2011), affirmed by an equally divided court, 106 A.3d 705

(Pa. 2014) (addressing cell phone text messages). In Interest of F.P., this

Court rejected the argument that electronic communications, such as instant

messages or e-mails, are inherently unreliable due to their relative anonymity

and the difficulty connecting them to their author, noting that the same

uncertainties exist with written documents: “A signature can be forged; a

letter can be typed on another’s typewriter; distinct letterhead stationary can

be copied or stolen.” Interest of F.P., 878 A.2d at 95. The Interest of F.P.

Court also rejected the notion that unique rules for admissibility of electronic

communications should be created, stating “We believe that e-mail messages

and similar forms of electronic communication can be properly authenticated

within the existing framework of Pa.R.E. 901 and Pennsylvania case law[.]”

Id. Additionally, the Interest of F.P. Court concluded that the admissibility

of an electronic communication is to be evaluated on a case-by-case basis, as

any other document, to determine whether there has been an adequate

foundational showing of its relevance and authenticity. Id. at 96.

      In considering the authentication of text messages, the Koch Court

concluded that “[i]mplicit in these decisions is the realization that e-mails and

text messages are documents and subject to the same requirements for

authenticity as non-electronic documents generally.” Koch, 39 A.3d at 1004

(citations omitted).   The Koch Court additionally observed that “electronic


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writings typically show their source, so they can be authenticated by contents

in the same way that a communication by postal mail can be authenticated.”

Id. at 1003. This Court also noted the following challenges in authenticating

electronic communications:

      [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.

Id. at 1004.      Accordingly, the Koch Court ruled, “[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.”   Id. at 1005.   In Koch, the Court concluded that testimony

presented by the Commonwealth was insufficient to authenticate the text

messages in question, noting that there was no testimony from any person

who had sent or received the text messages, nor any contextual clues in the

drug-related text messages that tended to reveal the identity of the sender.

Id. at 1005. On that basis, the Koch Court concluded that the admission of

the text messages constituted an abuse of discretion. Id.

      In Commonwealth v. Mangel, 181 A.3d 1154 (Pa. Super. 2018) this

Court had the opportunity to address authentication of communications made

on Facebook and other social media platforms.           In addressing these


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communications, this Court acknowledged the holdings in Interest of F.P.

and Koch, and stated the following in determining the authentication of these

postings:

            In our view, the same authorship concerns, as expressed by
     the Koch Court in relation to e-mails and instant messages, exist
     in reference to Facebook and other social media platforms, that
     can be accessed from any computer or smart phone with the
     appropriate user identification and password. See Koch, 39 A.3d
     at 1004; see also In re F.P., 878 A.2d at 95 (stating that
     “anybody with the right password can gain access to another’s
     email account and send a message ostensibly from that person.”).
     Social media evidence presents additional challenges because of
     the great ease with which a social media account may be falsified,
     or a legitimate account may be accessed by an imposter.
     Nevertheless, social media records and communications can be
     properly authenticated within the existing framework of Pa.R.E.
     901 and Pennsylvania case law, similar to the manner in which
     text messages and instant messages can be authenticated.
     Initially, authentication social media evidence is to be evaluated
     on a case-by-case basis to determine whether or not there has
     been an adequate foundational showing of its relevance and
     authenticity. See In re F.P., 878 A.2d at 96. Additionally, the
     proponent of social media evidence must present direct or
     circumstantial evidence that tends to corroborate the identity of
     the author of the communication in question, such as testimony
     from the person who sent or received the communication, or
     contextual clues in the communication tending to reveal the
     identity of the sender. See Koch, 39 A.3d at 1005. Other courts
     examining the authentication of social media records have ruled
     that the mere fact that an electronic communication, on its face,
     purports to originate from a certain person’s social networking
     account is generally insufficient, standing alone, to authenticate
     that person as the author of the communication.

Mangel, 181 A.3d at 1162 (some internal citations omitted).

     In addressing the claims before it, the Mangel Court concluded that the

trial court did not abuse its discretion in denying the Commonwealth’s motion




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in limine to introduce into evidence various Facebook posts, and in support of

its conclusion, stated:

      [T]the Commonwealth presented no evidence, direct or
      circumstantial, tending to substantiate that Mangel created the
      Facebook account in question, authored the chat messages, or
      posted the photograph of bloody hands. The mere fact that the
      Facebook account in question bore Mangel’s name, hometown and
      high school was insufficient to authenticate the online and mobile
      device chat messages as having been authored by Mangel.
      Moreover, there were no contextual clues in the chat messages
      that identified Mangel as the sender of the messages.

Id. at 1164.

      We find the holdings in Interest of F.P., Koch, and Mangel to be

instructive in this case. Here, the Commonwealth presented evidence that

Appellant owned the relevant social media accounts.        As the trial court

explained, the posts, Exhibits 1-16, reflected origination from social media

accounts belonging to Appellant. Trial Court Opinion, 5/8/18, at 1-8, 11-12.

The posts were made from the following accounts: “Bre TheBoss Holland,”

which account also displayed a cover photo of Appellant; “Bre Moved on

Holland”; “Bre Holland”; “shaunbre76,” which included a profile picture of

Appellant; “Quin Loveislove Robbins”; and “BriiBre Holland,” which displayed

a profile picture of Appellant. Commonwealth Exhibits 1-16. The trial court

further explained:

            At trial, the Commonwealth also presented the testimony of
      Matthew Gallup, a patrol officer with the Harrisburg Police
      Department. On September 20, 2016, he met with [Victim] who
      indicated she was being harassed by [Appellant] through various
      social media accounts, despite the fact that a no-contact order
      was in place between the parties.         During that meeting,

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J-S72027-18


      Officer Gallup was shown hard copies of the relevant social media
      posts, as well as posts still viewable on [Victim’s] phone.

             Officer Gallup testified to several facts suggesting
      [Appellant’s] ownership of the relevant social media accounts. He
      testified that the middle name of [Appellant], which he included
      on the Criminal Complaint, is Bree. Additionally, [Appellant’s]
      date of birth, as also indicated on the Criminal Complaint, is
      August 22, 1976. Officer Gallup further testified that the profile
      picture displayed on Commonwealth Exhibit 10 was that of
      [Appellant], whom he identified in the courtroom.

Trial Court Opinion, 5/8/18, at 8 (internal citations omitted). Thus, there was

sufficient evidence to establish that Appellant owned the social media

accounts.

      Furthermore, there was corroborating evidence that Appellant was the

author of the posts. Each of the posts contained contextual clues that linked

Appellant to Victim, and referenced their relationship.      As the trial court

stated:

             In the instant case, the Commonwealth witnesses provided
      ample circumstantial evidence to meet the threshold for admission
      of the social media posts against [Appellant]. All of the harassing
      and threatening social media posts introduced by the
      Commonwealth could, in one or several ways, be linked to
      [Appellant]. Some accounts displayed a photo of [Appellant] as a
      profile picture. Others used a variation of her name and/or
      birthdate. The timing of the posts offered further circumstantial
      evidence. According to the testimony of [Victim’s] sister, all of
      the posts were made after [Appellant] learned [Victim] had begun
      dating [Appellant’s] ex-boyfriend.

             Most of the posts also contained contextual clues supporting
      the identity of [Appellant] as their author. First, the posts, across
      all the variously named accounts, expressed consistent themes in
      a consistently vulgar voice: that [Victim] was “a whore” who
      pursued the paramours of other women; that [Victim] didn’t [use]
      condoms and might have AIDS; that [Victim] should get tested to

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      know her (presumably) HIV status. Second, the posts contained
      references to circumstances specific to the relationship between
      [Appellant] and [Victim]. The posts’ references to “cuz” (cousin)
      suggested [Appellant’s] authorship because her cousin, Sheree,
      had been a longtime friend of [Victim]. References to the
      boyfriend’s “playing a game” and “lost files” coincided with
      [Appellant’s] attempt to gain access to [Victim’s] workplace at
      PHEAA, where [Victim] theoretically had potential control over the
      boyfriend’s student loans. Third, some of the posts contained
      references to “cop caller”, and there was, at the time of the posts,
      a no-contact order in place between [Appellant] and [Victim].

            We believe these facts, as introduced by the
      Commonwealth, established an adequate foundation to
      authenticate the challenged exhibits and justify their admission
      into evidence against [Appellant].

Trial Court Opinion, 5/8/18, at 11-12. The trial court also stated:

             Moreover, while the Commonwealth had no witness who
      testified they observed [Appellant] creating the harassing social
      media posts, the Commonwealth’s case, as noted above, included
      details linking [Appellant] not just to the accounts, but also to the
      posts themselves. The posts contained vulgar rants consistent
      with a jealous ex[-]girlfriend who had just learned her friend had
      begun dating her ex. Further, the posts referenced details, like
      [Appellant’s] cousin and [Victim’s] job, specific to the relationship
      between the two women. The foundation presented was sufficient
      to justify the admission of the evidence for the consideration of
      the jury, who ultimately found that the posts not only came from
      accounts linked to [Appellant] but were also authored, beyond a
      reasonable doubt, by her as well.

Trial Court Opinion, 5/8/18, at 13.

      We agree with the trial court’s conclusion. Here, the Commonwealth

presented evidence substantiating that Appellant owned the Facebook and

Instagram accounts in question and circumstantial evidence tending to

corroborate that Appellant was the author of these communications. Mangel,

181 A.3d at 1162. The contextual clues in the posts, taken together with the

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testimony provided by Victim’s sister, support the conclusion that Appellant

was the author of the messages. N.T., 8/14/17, at 37-74; N.T., 8/15/17, at

84-130.4 Accordingly, the trial court did not abuse its discretion in denying

Appellant’s motion in limine to exclude this evidence from trial.

       Moreover, to the extent that Appellant argues these exhibits should not

have been admitted because they constituted hearsay and did not meet one

of the hearsay exceptions, we conclude that the claim lacks merit. As the trial

court aptly observed:

             Hearsay is a statement, other than one made by the
       declarant while testifying at trial or hearing, offered in evidence to
       prove the truth of the matter asserted. Pa.R.E. 801(c). In the
       instant case, the Commonwealth did not offer the identified social
       media posts to prove the matters asserted therein.               More
       specifically, the Commonwealth did not offer the posts to prove
       that [Victim] was a prostitute, refused to [use] condoms, and
       couldn’t carry a baby to term. Rather , the Commonwealth offered
       the posts to prove the elements of Harassment (that [Appellant],
       with intent to harass, annoy or alarm [Victim], communicated to
       and about her lewd, lascivious, threatening or obscene words,
       language, drawings or caricatures) and Stalking (that [Appellant]
       engaged in a course of conduct or repeatedly communicated to
       [Victim]     under   circumstances       which     demonstrated     or
       communicated either an intent to place such other person in
       reasonable fear of bodily injury or to cause substantial emotional
       distress to such other person.) See 18 Pa. C.S.A. §2709(A)(4)
       and 18 Pa.C.S.A. §2709.1(A)(2).

Trial Court Opinion, 5/8/18, at 14 (emphasis in original).



____________________________________________


4 Victim’s sister also testified that she reported the account bearing the name
“Quin Loveislove Robbins” to Facebook due to the inappropriate posts. N.T.,
8/15/17, at 89-90. As a result, she was aware of the owner of the account.
Id.

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      The comment to Pa.R.E. 801(c) is instructive:

      A statement is hearsay only if it is offered to prove the truth of
      the matter asserted in the statement. There are many situations
      in which evidence of a statement is offered for a purpose other
      than to prove the truth of the matter asserted.

      Sometimes a statement has direct legal significance, whether or
      not it is true. For example, one or more statements may
      constitute an offer, an acceptance, a promise, a guarantee, a
      notice, a representation, a misrepresentation, defamation,
      perjury, compliance with a contractual or statutory obligation, etc.

      More often, a statement, whether or not it is true, constitutes
      circumstantial evidence from which the trier of fact may infer,
      alone or in combination with other evidence, the existence or non-
      existence of a fact in issue. For example, a declarant’s statement
      may imply his or her particular state of mind, or it may imply that
      a particular state of mind ensued in the recipient.

Pa.R.E. 801(c), cmt.

      As the trial court noted, the posts were not introduced for purposes of

proving the truth of the matter asserted therein. Rather, introduction of the

posts established Appellant’s state of mind, and related directly to

consideration of the charged offenses of stalking and harassment. Thus, the

posts in question did not constitute hearsay, and the trial court did not abuse

its discretion in admitting them.

      In her second issue, Appellant argues that the trial court erred in

admitting Commonwealth Exhibit 16 because it is irrelevant. Appellant’s Brief

at 26. Appellant contends that the communication reflected in Exhibit 16 was

sent after Victim’s death. Id. at 26. Appellant argues that the charges filed

against her, stalking and harassment, were against Victim’s person. Id. at


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27.   Accordingly, Appellant maintains, a communication sent after Victim’s

death cannot constitute the actus reus of either of the charges. Id. Appellant

further argues that even if the communication was relevant, it was outweighed

by the unfair prejudice stemming from its introduction. Id. Appellant asserts

that this evidence was unfairly prejudicial because “its primary import was to

paint [Appellant] as the type of person who would celebrate the untimely

death of another person.” Id. at 27-28.

      The post at issue, Commonwealth Exhibit 16, memorialized a Facebook

post by “Quin Loveislove Robbins” reflecting the following: “DING DONG THE

BITCH IS DEAD (smiley face emojis) STUPID HOE (emojis).” Commonwealth’s

Exhibit 16; N.T., 8/15/17, at 116. Victim’s sister testified that she saw this

post sometime after her sister passed away on December 16, 2016. N.T.,

8/15/17, at 113.

      The offense of stalking is defined in relevant part as follows: “A person

commits the crime of stalking when the person . . . 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)(2). A person commits the

crime of harassment “when, with intent to harass, annoy or alarm another,

the person . . . communicates to or about such other person any lewd,




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lascivious, threatening or obscene words, language, drawings or caricatures.”

18 Pa.C.S. § 2709(a)(4).

             In determining the admissibility of evidence, the trial court
       must decide whether the evidence is relevant and, if so, whether
       its probative value outweighs its prejudicial effect. 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, 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.”           Because all relevant
       Commonwealth evidence is meant to prejudice a defendant,
       exclusion is limited to evidence so prejudicial that it would

             inflame the jury to make a decision based upon
             something other than the legal propositions relevant
             to the case. As this Court has noted, a trial court is
             not required to sanitize the trial to eliminate all
             unpleasant facts from the jury’s consideration where
             those facts form part of the history and natural
             development of the events and offenses with which a
             defendant is charged.

Commonwealth v. Serge, 837 A.2d 1255, 1260-1261 (Pa. Super. 2003)

(internal citations omitted).

       In addressing this issue, the trial court provided the following analysis:

             We agree a deceased person can no longer be harassed or
       stalked. However, we admitted Exhibit 16 for another purpose
       that was relevant to the Commonwealth’s case: demonstration of
       [Appellant’s] intent and mindset. As articulated previously in this
       Opinion, both Harassment and Stalking have an intent element.
       The Facebook post depicted by Exhibit 16 suggested strongly that
       the preceding social media posts made by [Appellant] as part of a
       continuing course of conduct prior to [Victim’s] death were not
       made as good-natured jokes or had some legitimate purpose.
       Rather, they were made with the requisite criminal intent.


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            With regard to [Appellant’s] claim that Exhibit 16, even if
      relevant, was more prejudicial than probative, we also disagree.

                                     * * *

      [T]he more appropriate legal inquiry is the question of whether
      [Appellant] was unfairly prejudiced. We do not believe she was.

            In the context of the other posts admitted at trial, Exhibit
      16 was not singularly outrageous. Its celebration of [Victim’s]
      death was consistent with the tenor of other posts suggesting
      violence and death.

Trial Court Opinion, 5/8/18, at 15-16 (emphasis in original).

      As outlined above, the offenses of stalking and harassment both include

elements of intent by the actor to cause the other person some level of

distress.   Introduction of this exhibit is relevant to establish the ill-will

Appellant had for Victim and supports the conclusion that she engaged in the

offenses of stalking and harassment of Victim. Thus, we agree the exhibit was

relevant.

      Moreover, the probative value was not outweighed by unfair prejudice.

The post reflects Appellant’s attitude toward Victim; the fact that it reflected

a negative attitude or an opinion reflecting unflatteringly on Appellant does

not make it unfairly prejudicial. This evidence forms part of the history and

natural development of the events and offenses with which Appellant was

charged. Serge, 837 A.2d at 1260-1261. Accordingly, the trial court was not

required to sanitize the record by keeping it from the jury, id., and did not

abuse its discretion in denying Appellant’s motion in limine to exclude this

evidence. Appellant is entitled to no relief on this claim.

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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/09/19




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