J-A23036-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                :      IN THE SUPERIOR COURT OF
                                             :            PENNSYLVANIA
                     Appellee                :
                                             :
                v.                           :
                                             :
KEVIN SOELLNER,                              :
                                             :
                     Appellant               :          No. 1498 WDA 2013

       Appeal from the Judgment of Sentence entered on August 1, 2013
                 in the Court of Common Pleas of Blair County,
              Criminal Division, No(s) CP-07-MD-0001074-2013;
                           CP-07-MD-0001080-2013

BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED SEPTEMBER 30, 2014

                                                          judgment of sentence

imposed after he was convicted of two counts of indirect criminal contempt



            1
                We affirm.

                                                                         antic

relationship and have two children together.2 After the termination of their

relationship, the trial court entered a PFA Order on March 7, 2013,

prohibiting Soellner from having any contact with Shaw.3



1
    23 Pa.C.S.A. § 6114(a).
2
 Notably to this appeal, the first name of one of th
an unusual spelling.
3
    The PFA Order is not contained in the certified record.
J-A23036-14

     According to Shaw, during two weeks in June 2013, she received




8/1/13, at 5-6.     Shaw testified that she had reason to believe the text

messages came from Soelln

children, their wellbeing, and the relationship between the parties. Id. at 6-

7. Shaw emphasized that in some of the text messages, the sender used

                                                                 intained, is

information that is only known by close family and friends. Id. at 6. Shaw

believed that Soellner was sending her the text messages under a different

telephone number by using a
                4
                    Id. at 7.

     Based upon the no-contact provision in the PFA Order, Shaw reported

the text messages to the Tyrone Police Department, and informed the police

regarding her belief that Soellner was sending her the text messages via the

TextMe app. Id. at 10. In




4
  TextMe is an app that allows users to send free text messages to any
phone number in the United States and various other countries. The TextMe
website states that users who install the TextMe app must choose a separate
telephone number to use with their TextMe account.                     See
https://textme.zendesk.com/hc/en-us/articles/200503297-What-is-TextMe-
(last visited Sept. 8, 2014).


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J-A23036-14

Complaint against Soellner charging him with two counts of ICC. Id. at 10,

20.5

       Notably, the police never obtained a search warra

phone or phone records,6 and the text messages themselves were not

admitted into evidence at trial.   However, the Affidavit of Probable Cause

prepared by Officer Walk stated, inter alia, the following regarding the text

messages:

       This officer made contact with [Shaw,] who showed this officer
       the messages. Some of the messages called Shaw names, some

       were talking about them being together.       Examples of the
       messages inclu



       care about them cause god knows [E.] loves being with me and

       should not hate someone that made a mistake and loves you


Criminal Complaint, 6/26/13, at 5 (Affidavit of Probable Cause).

       On August 1, 2013, the matter proceeded to a non-jury trial before the



5
  Prior to the filing of the charges against Soellner in the instant case, he
pled guilty to two crimes involving Shaw, simple assault and ICC. See N.T.,
8/1/13, at 48-50.
6
 Officer Walk testified that she did not attempt to secure a search warrant
because (1) it would have potentially taken weeks, and she was concerned

the PFA Order; and (2) Soellner could have simply deleted the TextMe app
from his phone and there would have been no record of the phone number
that he had used with his TextMe account. See N.T., 8/1/13, at 23-24.



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J-A23036-14

Shaw described her text message response to one of the text messages she

had received as follows:

      I asked [the sender of the text message] if it was him[, i.e.,
      Soellner,] and I said if this is [Soellner,] our son E[.] is sick and
      I needed to know if he had been throwing up while he [E.] was
      with [Soellner] on Sunday[,] and he [the sender of the text
      message] said no[,] when I had E[.] he was fine[;] he had


N.T., 8/1/13, at 8. Shaw also testified that in another of the text messages,

the sender

                                          Id. at 11.7

      At the close of his case, Soellner moved to dismiss the charges, and



guilty of both counts of ICC, and sentenced him to serve an aggregate term

of two months in jail. Soellner filed a Post-Sentence Motion, which the trial

court denied. In response, Soellner timely filed a Notice of Appeal.

      On appeal, Soellner presents the following issue for our review:

                                                                              lish

                                                                         -finder]




7
  Shaw offered to read the actual language of the text messages into the
record, but Judge Peoples declined to hear this evidence. Further, Soellner
never challenged the lack of production of the actual text messages at trial.



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J-A23036-14




Brief for Appellant at 5.8

      We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

      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
      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
                                                     -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
      finder 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. Melvin, 2014 PA Super 181, at *83 (Pa. Super. 2014)

(citation omitted).



Decree of court occurred outside the presence of the court. Where a PFA

order is involved, an [ICC] charge is designed to seek punishment for

                                      Commonwealth v. Brumbaugh, 932

8
  We observe that the Commonwealth did not file a responsive brief, nor did
the trial court file a complete Pa.R.A.P. 1925(a) opinion, as Judge Peoples
passed away shortly after trial.


                                  -5-
J-A23036-14

A.2d 108, 110 (Pa. Super. 2007) (citations and quotation marks omitted).



sufficiently definite, clear, and specific to the contemnor as to leave no doubt

of the conduct prohibited; 2) the contemnor had notice of the order; 3) the

act constituting the violation must have been volitional; and 4) the

                                                          Commonwealth v.

Walsh, 36 A.3d 613, 619

finding of [ICC], this court will not disturb its decision absent an abuse of

              Commonwealth v. Padilla, 885 A.2d 994, 997 (Pa. Super.

2005). Finally, in every criminal

of the identity of the accused as the person who committed the crime is

                              Commonwealth v. Hickman, 309 A.2d 564,

566 (Pa. 1973).

      Soellner argues that the evidence was insufficient to convict him of

ICC, as the Commonwealth failed to prove beyond a reasonable doubt that

he was the person who actually sent Shaw the text messages. See Brief for

Appellant at 9.9    Soellner points out that Shaw did not recognize the

telephone number from which the text messages originated, and that this

unknown number had a Los Angeles, California area code.             Id. at 11.

Soellner emphasizes that the police never obtained a search warrant for his

phone or his phone records, and that the text messages were not introduced

9
 Soellner does not dispute that the PFA Order was sufficiently clear and that
he had notice of it.


                                  -6-
J-A23036-14

into evidence at trial.   Id. at 11-12.     Soellner asserts that there was no

evidence presented linking him to the text messages aside from the

testimony of Shaw. Id. Soellner acknowledges that the sender of the text

messages had referenced the na



                                                     Id. at 14.   Finally, Soellner

points out the trial testimony of his mother, Deb Weston, that she was the




receive messages from [] Shaw prior to the dates the[] [text] messages




could not purchase or download [an] app[] without her knowledge              Id. at

13.



specifically to the identity of the sender of the text messages.                 The

Commonwealth may sustain its burden of proving every element of ICC

beyond a reasonable doubt by means of wholly circumstantial evidence, and

we    must   view   the   evidence    in   the   light   most   favorable   to   the

Commonwealth. Walsh, 36 A.3d at 618-19; see also Commonwealth v.

Koch, 39 A.3d 996, 1005 (Pa. Super. 2011)                            ircumstantial



                                     -7-
J-A23036-14




communications, is required to establish the authenticity of text messages,

and holding that the Commonwealth failed to present any evidence linking

the defendant to the incriminating text messages to establish their



received the text messages[, and t]here are no contextual clues in the []

text messages themselves tending to reveal the identity of the sender.



the sender of the text messages came from Shaw, who testified that the text

messages contained contextual clues that Soellner was the sender.        Shaw

stated that the sender mentioned in some of the text messages the name of



                                                   N.T., 8/1/13, at 6. Shaw

specifically described two text messages wherein the sender (1) mentioned

having had custody of E. while he was ill; and (2) questioned the paternity

                               Id. at 8, 11.   Moreover, Shaw testified that



relationship between the parties, see id. at 6-7, topics of conversation that

would be of little interest to anyone outside of a limited group of people who



                                          er was the sender of the text

messages; we may not substitute our credibility determination for that of



                                 -8-
J-A23036-14

the fact-finder. See Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa.



so weak and inconclusive that as a matter of law no probability of fact may

be drawn from the combined circumstances.             See Melvin, supra.

Accordingly, we conclude that, when viewed in the requisite light and

drawing all reasonable inferences therefrom, the circumstantial identification

evidence was sufficient beyond a reasonable doubt to convict Soellner of

ICC.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/30/2014




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