J-A21027-19

                               2020 PA Super 171

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 DANIEL TALLEY                           :
                                         :
                   Appellant             :   No. 2627 EDA 2018

       Appeal from the Judgment of Sentence Entered August 24, 2018
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0005241-2017


BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

OPINION BY OLSON, J.:                                FILED JULY 17, 2020

      Appellant, Daniel Talley, appeals from the judgment of sentence entered

on August 24, 2018 in the Criminal Division of the Court of Common Pleas of

Montgomery County. We affirm.

      The trial court summarized the factual and procedural history of this

case as follows.

      In March 2016, Christa Nesbitt met [Appellant] while working as
      a waitress at the Whistle Stop diner in Oreland, Pennsylvania.
      [Appellant] regularly frequented the diner and began a romantic
      relationship with Ms. Nesbitt in the spring of 2016. In September
      2016, Ms. Nesbitt and her daughter, [R.N.], moved into
      [Appellant’s] house.     Ms. Nesbitt eventually broke up with
      [Appellant] and moved out of [Appellant’s] home on May 27,
      2017.    The following day[,] Ms. Nesbitt began to receive
      threatening and harassing text messages and [electronic-mails
      (“e-mails”)] from unfamiliar addresses. The messages came from
      e-mail addresses including, inter alia, “maxkillin@gmx.com” and
      “nastybtch@cumof... .” Ms. Nesbitt stated that she had never
      received such messages prior to leaving [Appellant] and did not
      know of any grudges that anyone else might hold toward her at
      that time.
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     The subject messages repeatedly referred to Ms. Nesbitt in a
     vulgar and derogatory manner and included threats such as “I was
     up da stret from ur hous my gun was loaded nd I was going to
     end everythin we cld die 2getter,” “ur time is runin out slut u stole
     dat kid from me u never be safe u slut.” The sender of these
     messages ostensibly intended for Ms. Nesbitt to believe the
     messages were being sent from [R.N.’s] biological father, [Korey
     McClellan].[] Ms. Nesbitt testified there was no animosity between
     her and Mr. McClellan at the time these messages were sent.
     Some of the messages were received while Mr. McClellan was in
     her presence and she did not observe him sending any messages
     at those times. Mr. McClellan also denied sending any such
     messages. Mr. McClellan stated that he harbored no ill will or
     animosity toward Ms. Nesbitt after their relationship ended.

     On June 2, 2017, Ms. Nesbitt received a text message saying that
     the sender was observing her at a Friendly’s restaurant. Ms.
     Nesbitt was, in fact, at a Friendly’s restaurant with her daughter
     and a friend when she received this text message. Ms. Nesbitt
     went to the Springfield Police Department to report this incident.
     An investigation of her [telephone] by Detective Robert Chiarlanza
     revealed that an application on her [telephone], unbeknownst to
     her, was sharing her location with “Daniel Talley.”

     Ms. Nesbitt continued to receive vulgar, harassing and, at times,
     threatening text messages every day, multiple times a day until
     approximately mid-July 2017. She estimated that she received
     hundreds of messages of this nature during that time. The
     messages referenced elements of [Appellant’s] and Ms. Nesbitt’s
     prior sexual relationship that only [Appellant] knew about, such
     as when [Appellant] would pressure Ms. Nesbitt to have anal sex
     with him. The messages also used expressions that were specific
     to [Appellant], such as “fake love,” an expression [Appellant]
     would often use when accusing Ms. Nesbitt of cheating on him.
     Ms. Nesbitt repeatedly asked the sender of the messages to stop
     sending her messages. On June 14, 2017, Detective Chiarlanza
     confronted [Appellant] at his home and warned him to stop
     sending Ms. Nesbitt threatening and harassing text messages.

     On June 19, 2017, Ms. Nesbitt received a message with the
     subject “Tick tock” which read, in part, “It gonna happen, slut.
     You gonna pay. Comin’ soon mybe on Fox stet. You seem to like
     it der.” Ashley-Lynn Donnelly, a friend and neighbor of Ms.
     Nesbitt, testified that on the night of June 19, 2017, between

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     11:30 p.m. and midnight, she was sitting on a neighbor’s porch
     on Plymouth Avenue when she saw [Appellant’s] truck idling
     [without its headlights]. It began driving up and down Plymouth
     Avenue. After passing her a third time, she heard two loud bangs
     and she then went inside. She suspected these bangs may have
     been gunshots. Ms. Donnelly sent Ms. Nesbitt a text that night
     [saying] that [Appellant’s] truck was near Ms. Nesbitt’s parent’s
     house where Ms. Nesbitt was staying. The following day, June 20,
     2017, Ms. Nesbitt noticed a bullet hole in her vehicle.

     On June 20, 2017, Detective Chiarlanza went to investigate a
     report that a car was shot on Plymouth Avenue. His investigation
     revealed that “there was a bullet hole on the driver’s side that
     entered into the passenger compartment behind the rear door.”
     A small bullet fragment was recovered from the rear passenger
     compartment of the vehicle. That same day the police obtained
     and executed two search warrants for [Appellant’s] home and an
     arrest warrant for [Appellant]. [Appellant] was in the driveway of
     his residence next to his truck armed with a loaded Kel-Tec .380
     semiautomatic pistol when the police arrived.            Detective
     Chiarlanza testified the gun in [Appellant’s] possession was
     capable of producing a bullet hole similar to the one found in Ms.
     Nesbitt’s vehicle.

     Investigation of [Appellant’s] home revealed a security camera.
     The video from the night of June 19, 2017 showed [Appellant]
     entering his home at 11:56 p.m., shortly after the time Ms.
     Donnelly testified [Appellant] was driving his truck on Plymouth
     Avenue when she heard two loud bangs. [Appellant] lived only a
     few blocks from where the shooting occurred and had time to
     return home within a few minutes of the shooting.

     A search of [Appellant’s] computer revealed that he had searched
     the internet for terms including, inter alia, “VPN [Virtual Private
     Network],” “Torproject.org” and “Private Internet access.”
     [Appellant] had searched for these terms on June 16, 2017, two
     days after Detective Chiarlanza first visited [Appellant’s] house.
     Using a VPN and Tor, a web browser, allows a person to [conduct
     anonymous searches] or hide their online presence and activity.
     [Appellant] also had a virtual machine installed on his computer
     allowing him to conceal any activity conducted on that computer
     by completely compartmentalizing that activity within the virtual
     machine so that it could later be deleted without a trace. Analysis
     of [Appellant’s] computer further revealed that he had been

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J-A21027-19


     learning how to send e-mails from fictionalized e-mail addresses
     to cellular telephone numbers using a website. There was also
     evidence that on June 20, 2017, [Appellant] accessed the online
     schedule that Ms. Nesbitt used for her job.

     An extraction of [Appellant’s cellular telephone] data revealed
     deleted text messages to a David Wolf which included, inter alia,
     a message asking “Is there a way to spam a [cellular telephone]
     with so many texts and call[s] it just totally fucks it up?” When
     Mr. Wolf responded that this would likely be illegal and could easily
     be traced, [Appellant] stated “That’s what TOR is for.” Mr. Wolf
     then responded, “I guess. Then you’d have to find an online script
     that sends SMS [short message service] anonymously, and will
     accept input from an anonymized browser.”

     Ms. Nesbitt did not receive any more threatening or harassing
     messages after [Appellant’s] arrest on July 18, 2017 when he no
     longer had access to [cellular telephones] or computers.

     [Appellant testified in his own defense and] denied sending any of
     the subject messages[. He also] testified that such messages had
     been coming from Mr. McClellan for months before [Appellant’s]
     breakup with Ms. Nesbitt. He testified that there was animosity
     between Ms. Nesbitt and Mr. McClellan and that Ms. Nesbitt was
     afraid of Mr. McClellan. [Appellant] also testified that the virtual
     machine installed on his computer was to avoid viruses when his
     daughter used the computer to play games. The VPN, he
     explained, was required for work. Detective Chiarlanza testified
     in rebuttal that based on his experience and similar investigations
     it was not feasible the VPN software [Appellant] installed on his
     computer was being used for [Appellant’s] employment.

     On July 26, 2018, the jury found [Appellant] guilty of [two counts
     of] stalking[, pursuant to 18 Pa.C.S.A. § 2709.1(a)(1) and
     § 2709.1(a)(2),] and [one count each of] terroristic threats [(18
     Pa.C.S.A. § 2706(a)(1))] and harassment [(18 Pa.C.S.A.
     § 2709(a)(2)),] but deadlocked on the charges of recklessly
     endangering another person and simple assault. [Appellant] was
     sentenced on August 24, 2018. On August 30, 2018, [Appellant]
     filed a notice of appeal to [this Court]. On September 5, 2018,
     the [trial] court ordered [Appellant] to file a concise statement of
     [errors] complained of on appeal in accordance with Pa.R.A.P.
     1925(b). On October 1, 2018, the [trial] court granted [Appellant]
     an extension of time to file his [Rule 1925(b)] concise statement.

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J-A21027-19


        On October 23, 2018, [Appellant] filed a concise statement of
        [errors] complained of on appeal.       On October 25, 2018,
        [Appellant] filed an amended concise statement. [The trial court
        issued its opinion on December 14, 2018.]

Trial Court Opinion, 12/14/18, at 1-6.

        Appellant’s brief identifies three issues for our review:

        Does Article 1, § 14 of the Pennsylvania Constitution violate the
        Due Process Clauses of the United States Constitution both facially
        and as applied against [Appellant]?

        [Do] concurrent sentences based upon [convictions under] the
        two subsections of 18 Pa.C.S.A. [§] 2709.1(a) [(proscribing
        differing forms of stalking)] constitute double punishment [for]
        the same statutorily proscribed conduct and thus an illegal
        sentence?

        Was the admission of screenshots of text messages and emails an
        abuse of discretion and a misapplication of the Best Evidence Rule
        as codified by the Pennsylvania Rules of Evidence 1001-1004?

Appellant’s Brief at 2-3.1

        Appellant’s first issue alleges that he was wrongfully detained prior to

trial pursuant to Article 1, § 14 of the Pennsylvania Constitution.2 Specifically,


____________________________________________


1   We have re-ordered Appellant’s issues to facilitate our discussion.

2 An order pertaining to bail is ordinarily subject to immediate review pursuant
to Pa.R.A.P. 1762(b)(2). See Commonwealth v. Parsons, 166 A.3d 1242,
1245 (Pa. Super. 2017). Appellant, however, did not pursue this course of
action but instead challenged the denial of nominal bail in the context of his
direct appeal from a judgment of sentence. We have not deemed this issue
to be moot since Appellant claims, in part, that the wrongful denial of nominal
bail deprived him of a meaningful opportunity to assist in his own defense and,
as such, contributed to his conviction.




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J-A21027-19


Appellant asserts that Article 1, § 14 of the Pennsylvania Constitution3

violates, both facially and as applied, the procedural and substantive

components of the due process clauses of the Fifth and Fourteenth

Amendments of the United States Constitution.            Appellant maintains that

Article 1, § 14 affords insufficient procedures to enable a judicial officer to

evaluate the likelihood of potential danger posed by a detainee.                 See

Appellant’s Brief at 32-44 and 45-47.              Because of these procedural

deficiencies, Appellant further contends that Article 1, § 14 is excessive in

relation to the regulatory goal of pre-trial detention predicated upon an

identified threat an arrestee poses toward an individual or the community.

See id. at 47-54. The Commonwealth asserts that Appellant waived his

federal due process claims. See Commonwealth Brief at 8-9 and 20-24. After

careful consideration, we agree with the Commonwealth that Appellant failed

to preserve his federal due process challenges for appellate review.

        A brief review of the relevant factual history is essential to our resolution

of this claim. Police officials arrested Appellant on July 18, 2017 and a criminal



____________________________________________


3   In relevant part, Article 1, § 14 of the Pennsylvania Constitution states:

        All prisoners shall be bailable by sufficient sureties . . . unless no
        condition or combination of conditions other than imprisonment
        will reasonably assure the safety of any person and the community
        when the proof is evident or presumption great.

Pennsylvania Constitution Article 1, § 14.


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J-A21027-19


complaint was filed on August 7, 2017.          Appellant’s bail was set at

$250,000.00. On January 8, 2018, Appellant moved for release on nominal

bail.   The motion alleged that Appellant was entitled to relief pursuant to

Pa.R.Crim.P. 600(B) and (D)(2), which permit an individual who has been

incarcerated in excess of 180 days from the filing of a criminal complaint to

file a written motion seeking release on nominal bail, subject to any

nonmonetary condition imposed by the court and permitted by law.          See

Pa.R.Crim.P. 600(B) and (D)(2); Motion for Release on Nominal Bail, 1/8/18.

        The trial court heard oral argument on Appellant’s nominal bail motion

on May 1, 2018.       At oral argument, the Commonwealth conceded that

Appellant had been incarcerated for more than 180 days since the filing of the

criminal complaint. In addition, defense counsel conceded that the court, in

deciding the motion, could consider the affidavit of probable cause filed in

support of the charges against Appellant. On May 9, 2018, the trial court

denied Appellant’s motion for release on nominal bail, concluding that no

condition, or combination of conditions, could ensure the safety of the

community or Ms. Nesbitt.        See Trial Court Opinion, 12/14/18, at 7.

Appellant, on May 11, 2018, moved for reconsideration of the trial court’s

denial of his nominal bail motion.     Among other contentions, Appellant’s

motion for reconsideration raised constitutional challenges based upon Article

1, § 13 of the Pennsylvania Constitution (prohibiting excessive bail and fines

and infliction of cruel punishments) and the Eighth Amendment to the United


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J-A21027-19


States Constitution (prohibiting cruel and unusual punishments).       The trial

court entertained argument on Appellant’s reconsidered motion on June 28,

2018 and denied the motion on July 11, 2018.

      The certified record confirms that Appellant waived appellate review of

his federal due process claims challenging the validity of Article 1, § 14 of the

Pennsylvania Constitution. Critically, the record reflects that Appellant never

raised these federal constitutional challenges in his original motion for nominal

bail, the hearing on that motion, his motion for reconsideration, or at

argument on the reconsidered motion.        In fact, Appellant first raised his

procedural and substantive due process claims in his October 23, 2018 concise

statement, which he filed after his notice of appeal. Because Appellant did

not properly preserve his federal due process challenges before the trial court,

he cannot litigate them for the first time on appeal. See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”); Beemac Trucking, LLC v. CNG Concepts, LLC, 134

A.3d 1055, 1058 (Pa. Super. 2016) (“An issue raised for the first time in a

concise statement is waived [because an issue raised for the first time after

the filing of a notice of appeal deprives the trial court of the opportunity to

consider the claim].”); Commonwealth v. Lawrence, 99 A.3d 116, 122 (Pa.

Super. 2014) (claims challenging constitutionality of statutory provisions are

generally subject to waiver), appeal denied, 114 A.3d 416 (Pa. 2015).




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J-A21027-19


       To the extent Appellant’s brief develops a claim alleging that the trial

court improperly denied nominal bail pursuant to Pa.R.Crim.P. 600(D)(2), we

conclude that Appellant is not entitled to relief.4 Appellant’s claim here is that

the Commonwealth failed to present witnesses or offer other proof that no

condition or combination of conditions could reasonably assure the safety of

the victim or the community. See Appellant’s Brief at 33. As such, Appellant

maintains that the Commonwealth failed to meet its burden of proof at the

bail hearing. Id. We conclude that the record contained sufficient evidence

to show that no condition or combination of conditions could reasonably assure

the safety of the victim or the community. Hence, the trial court did not abuse

its discretion in refusing Appellant’s request for nominal bail.

       “In evaluating Rule 600 issues, our standard of review of a trial court's

decision is whether the trial court abused its discretion.” Commonwealth v.

Hunt, 858 A.2d 1234, 1238 (Pa. Super. 2004) (en banc). Our scope of review



____________________________________________


4 Although the focus of Appellant’s nominal bail claim centers upon the alleged
deprivation of Appellant’s substantive and procedural due process rights under
the United States Constitution, his brief forwards a claim that the
Commonwealth failed to meet its burden of proof in demonstrating that bail
would be inappropriate under Pa.R.Crim.P. 600(D)(2) and Article 1, § 14 of
the Pennsylvania Constitution. Appellant preserved this claim by litigating a
motion for release on nominal bond and by including the claim in his Rule
1925 concise statement. Although Appellant did not expressly include a
challenge to the trial court’s denial of nominal bail in his statement of
questions involved as required by Pa.R.A.P. 2116(a) (precluding appellate
review unless issue is stated in statement of questions involved or is fairly
suggested thereby), we shall overlook this omission as it has not hampered
our review.

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J-A21027-19


is limited to the findings of the trial court and the evidence of record generated

at the Rule 600 evidentiary hearing, which we view in the light most favorable

to the prevailing party. Id. at 1238-1239.

      Rule 600(D)(2) of the Pennsylvania Rules of Criminal Procedure

provides, in relevant part:

      [W]hen a defendant is held in pretrial incarceration beyond the
      time set forth in paragraph (B), at any time before trial, the
      defendant's attorney, or the defendant if unrepresented, may file
      a written motion requesting that the defendant be released
      immediately on nominal bail subject to any nonmonetary
      conditions of bail imposed by the court as permitted by law. A
      copy of the motion shall be served on the attorney for the
      Commonwealth concurrently with filing. The judge shall conduct
      a hearing on the motion.

Pa.R.Crim.P. 600(D)(2). Rule 600(B)(1) states: “[N]o defendant shall be held

in pretrial incarceration in excess of . . . 180 days from the date on which the

criminal complaint is filed.” Pa.R.Crim.P. 600(B)(1). Even if a defendant has

been incarcerated for at least 180 days from the date on which the complaint

was filed, a trial court retains discretion to deny release on nominal bail if “no

condition or combination of conditions other than imprisonment will

reasonably    assure    the   safety   of   any   person   and   the   community.”

Commonwealth v. Jones, 899 A.2d 353, 355 (Pa. Super. 2006), quoting PA.

CONST., art. I, § 14.

      In its Rule 1925(a) opinion, the trial court set forth its reasons for

denying Appellant’s nominal bail motion pursuant to Rule 600(D)(2).             It

stated:


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J-A21027-19


     Given the nature of the allegations in this case and the substantial
     evidence that appeared in the affidavit of probable cause
     supporting the complaint, the court determined that no
     combination of conditions could ensure the safety of the
     community and in particular the victim, Christa Nesbitt. This was
     based on the escalating pattern of threatening and harassing
     messages received by Ms. Nesbitt, including mention of firearms
     and death threats against Ms. Nesbitt. There was substantial
     circumstantial evidence in the affidavit of probable cause linking
     [Appellant] to these messages, including forensic analysis of his
     computer and [cellular telephones] that revealed research into
     “spamming” a [telephone] with text messages, researching online
     when text messages become criminal harassment, and concerted
     efforts to anonymize his online activity. More significantly, Ms.
     Nesbitt’s vehicle was shot on the night of June 19, 2017 and a
     witness placed [Appellant’s] vehicle at the scene immediately
     before a loud bang was heard. [Appellant] was arrested on June
     20, 2017 and released on bail on June 22, 2017. The harassing
     and threatening messages stopped while [Appellant] was in jail
     but resumed within an hour of [Appellant’s] release on bail. The
     vulgar and threatening messages continued until July 12, 2017,
     just days before [Appellant] was again arrested on July 18, 2017.
     The court concluded the totality of circumstances indicated that
     [Appellant] likely was the author of these threatening messages,
     was physically stalking [Ms. Nesbitt,] and fired a bullet into her
     car. There was no combination of conditions within the court’s
     power that could ensure the safety of Ms. Nesbitt and the
     community.[FN A]      Accordingly, the court properly denied
     [Appellant’s] motion for release on nominal bail.


          The court suggested that [Appellant] be released on house
     [FN A]

     arrest with electronic monitoring but was advised this option is not
     available in Montgomery County prior to sentencing.


Trial Court Opinion, 12/14/18, at 7-8.

     We cannot agree with Appellant that the Commonwealth failed to

demonstrate that no condition or combination of conditions could ensure the

safety of the community or Ms. Nesbitt.          Appellant’s claim that the


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J-A21027-19


Commonwealth failed to meet its burden rests on his contention that the

prosecution produced no witnesses or other evidence at the Rule 600(D)(2)

hearing. Defense counsel, however, conceded that the Commonwealth could

rely on the factual averments in the affidavit of probable cause to oppose

Appellant’s motion. As the trial court observed, the affidavit of probable cause

linked Appellant to numerous harassing text messages and violent threats

issued to Ms. Nesbitt and set forth compelling proof that Appellant used a

firearm to damage Ms. Nesbitt’s vehicle. In addition, the trial court learned

that house arrest with electronic monitoring was not available prior to

sentencing.   Under these circumstances, the trial court did not abuse its

discretion in denying nominal bail to Appellant.

      In his second claim, Appellant asserts that he received an illegal

sentence when the trial court imposed separate punishments for each of his

two stalking convictions. Following trial, the jury found Appellant guilty of one

count of stalking pursuant to 18 Pa.C.S.A. § 2709.1(a)(1) and a second count

of stalking pursuant to 18 Pa.C.S.A. § 2709.1(a)(2). Appellant maintains that

the two subsections of the stalking statute do not constitute separate crimes,

but merely serve as two alternate means of proving the same offense. See

Appellant’s Brief at 19. Hence, Appellant asserts that the trial court imposed

an illegal sentence when it ordered distinct, consecutive punishments for his

stalking convictions.




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J-A21027-19


       The merger of crimes for sentencing purposes is governed by the

following principles and standard of review.

       Whether [a]ppellant's convictions merge for sentencing is a
       question implicating the legality of [a]ppellant's sentence.
       Consequently, our standard of review is de novo and the scope of
       our review is plenary. See Commonwealth v. Collins, 764 A.2d
       1056, 1057, n.1 (Pa. 2001)[.]

       [42 Pa.C.S.A. § 9765] provides:

         § 9765. Merger of sentences

         No crimes shall merge for sentencing purposes unless the
         crimes arise from a single criminal act and all of the statutory
         elements of one offense are included in the statutory
         elements of the other offense. Where crimes merge for
         sentencing purposes, the court may sentence the defendant
         only on the higher graded offense.

       42 Pa.C.S.[A.] § 9765.

       The statute's mandate is clear. It prohibits merger unless two
       distinct facts are present: 1) the crimes arise from a single
       criminal act; and 2) all of the statutory elements of one of the
       offenses are included in the statutory elements of the other.

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).5

____________________________________________


5  Appellant maintains that his contentions on appeal do not implicate the
doctrine of merger. See Appellant’s Reply Brief at 22-23. Instead, Appellant
asserts that “the two stalking subsections [under which he was convicted are
alternate] ways to prove the single crime of stalking rather than two distinct
crimes.” Id. at 22. In Baldwin, however, the Supreme Court anticipated the
situation in which courts confront the issue of merging offenses defined under
separate subsections of the same criminal statute. In Baldwin, the Court
noted:

       [W]hile Section 9765 indeed focuses on an examination of
       “statutory elements,” [the Court cautioned against ignoring] the



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       In relevant part, the Crimes Code defines the offense of stalking as

follows:

                                 § 2709.1. Stalking

       (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
____________________________________________


       simple legislative reality that individual criminal statutes often
       overlap, and proscribe in the alternative several different
       categories of conduct under a single banner.              See, e.g.,
       Aggravated Assault, 18 Pa.C.S.[A.] § 2702 (defining seven distinct
       violations of law); Involuntary Deviate Sexual Intercourse, 18
       Pa.C.S.[A.] § 3123 (setting forth eight separate violations).
       Consequently, in such cases, [the Supreme Court admonished]
       that [] courts must take care to determine which particular
       “offenses,” i.e. violations of law, are at issue in a particular case.
       See, e.g., Commonwealth v. Johnson, 874 A.2d 66, 71 n.2
       (Pa. Super. 2005) (recognizing that a particular subsection of a
       criminal statute may merge with another crime as a
       lesser-included offense even though a different subsection of that
       same statute may not).

Baldwin, 985 A.2d at 837 n.6.

Here, the two variants of stalking defined at 18 Pa.C.S.A. §§ 2709.1(a)(1) and
2709.1(a)(2) proscribe distinct categories of conduct under a single statutory
heading. As such, they are subject to merger analysis under 42 Pa.C.S.A.
§ 9765. Thus, insofar as Appellant’s argument relies on cases that predate
the adoption of the merger statute, see Appellant’s Brief at 62-65, his
argument against application of § 9765 is unavailing.

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      reasonable fear of bodily injury or to cause substantial emotional
      distress to such other person.

18 Pa.C.S.A. §§ 2709.1(a)(1) and (a)(2) (emphasis added).

      As the plain language of 18 Pa.C.S.A. § 2709.1(a)(1) makes clear, an

individual may be found guilty of stalking under § 2709.1(a)(1) where he or

she “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.”

18 Pa.C.S.A. § 2709.1(a)(1) (emphasis added). The Commonwealth asserts

that the following conduct on the part of Appellant met the criteria set forth

in § 2709.1(a)(1):     (1) Appellant observed Ms. Nesbitt at a Friendly’s

restaurant without her consent on June 2, 2017, as evidenced by his text

message to that effect, Ms. Nesbitt’s testimony confirming her presence at the

restaurant on that date, and forensic evidence showing that Appellant installed

an application on Ms. Nesbitt’s cellular telephone which shared, without her

consent, the location of her mobile telephone with Appellant; (2) observations

made by Ms. Nesbitt’s neighbor of Appellant in his truck in the vicinity of Ms.

Nesbitt’s parent’s home between 11:30 p.m. and midnight on the evening of

June 19, 2017 when a bullet was fired into Ms. Nesbitt’s vehicle; and, (3)

forensic evidence which showed that Appellant accessed, without Ms. Nesbitt’s

consent, an online schedule used by Ms. Nesbitt in her employment.         See




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J-A21027-19


Commonwealth’s Brief at 27, citing N.T. Trial, 7/23/18, at 88-89, 141-142 and

N.T. Trial, 7/24/18, at 334.

        In addition, the plain text of 18 Pa.C.S.A. § 2709.1(a)(2) states that an

individual may be held criminally liable for stalking under § 2709.1(a)(2) if he

or she “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.”       18 Pa.C.S.A. § 2709.1(a)(2)

(emphasis added).      The Commonwealth argues that repeated instances in

which Appellant sent harassing text messages to Ms. Nesbitt satisfied this

subsection. See Commonwealth Brief at 26.

        We have carefully reviewed the notes of testimony from Appellant’s trial,

together with the statutory language defining the offense of stalking at 18

Pa.C.S.A. §§ 2709.1(a)(1) and (a)(2).          Based upon our review, we are

satisfied that Appellant’s convictions for stalking under § 2709.1(a)(1) and

§ 2709.1(a)(2) did not arise from a single criminal act.        Moreover, since

§ 2709.1(a)(1) proscribes “courses of conduct or the repeated commission of

acts”   and § 2709.1(a)(2)      prohibits   “courses of conduct or     repeated

communications,” we are convinced that not all of the elements of one

subsection of § 2709.1 are included in the other, or vice versa.        As such,

Appellant’s stalking convictions under § 2709.1(a)(1) and § 2709.1(a)(2) do




                                      - 16 -
J-A21027-19


not merge under 42 Pa.C.S.A. § 9765 and the trial court did not err in

imposing separate punishments for those convictions.

       Appellant’s final claim asserts that the trial court erred and/or abused

its discretion in admitting “screenshots,” or photographs of the text messages

depicted on Ms. Nesbitt’s cellular telephone, in contravention of the best

evidence rule as adopted in Pa.R.E. 1001, 1002, 1003, and 1004. According

to Appellant, neither the screenshots, nor any testimony relating to their

content, were admissible since the screenshots did not meet the criteria of

“original” writings or “duplicates” under the evidentiary rules. Furthermore,

per Appellant, the screenshots needed to qualify either as originals or

duplicates since the Commonwealth’s “entire case against [Appellant] hinged

on whether he was the sender of a slew of vulgar and anonymous text

messages” and Appellant’s defense centered on his claim that “he was not the

sender, but that, in fact, his [former]-girlfriend Ms. Nesbitt had been receiving

similar messages even before [their relationship ended].” Appellant’s Brief at

19. In challenging the admission of the screenshots, as opposed to complete

transcriptions of the downloaded contents of Ms. Nesbitt’s cellular telephone,

Appellant emphasizes that the screenshots omitted certain content found

within the messages, including “hyperlinks[6] to a website that could have shed


____________________________________________


6A hyperlink is an “element on a webpage – usu. a word, phrase, or graphic,
but sometimes a single pixel – that when clicked on, takes the user to another



                                          - 17 -
J-A21027-19


light on who sent the messages” and “important metadata[7] such as a full list

of the participants [in] the messages, the source [of the message], the

number of attachments, and the start time and time of last activity.” Id. at

20. Not only did the screenshots omit features that could have identified the

sender of the messages, the failure to secure the original text messages was

inexcusable since police authorities had both the capability and opportunity to

fully download Ms. Nesbitt’s cellular telephone. See id.

       We apply the following standard and scope of review when reviewing a

challenge to a trial court’s evidentiary rulings.

       When we review a trial court ruling on admission of evidence, we
       must acknowledge that decisions on admissibility are within the
       sound discretion of the trial court and will not be overturned
       absent an abuse of discretion or misapplication of law. In addition,
       for a ruling on evidence to constitute reversible error, it must have
       been harmful or prejudicial to the complaining party.

       An abuse of discretion is not merely an error of judgment, but if
       in reaching a conclusion the law is overridden or misapplied, or
       the judgment exercised is manifestly unreasonable, or the result
       of partiality, prejudice, bias or ill-will, as shown by the evidence
       or the record, discretion is abused.

____________________________________________


part of the same website or to a different website.” Black’s Law Dictionary at
759 (8th Ed. 2004).

7  Metadata is data that describes and gives information about other data.
Merriam-Webster’s Collegiate Dictionary at 779 (11th Ed. 2003). Metadata
may be used to summarize basic information about data to facilitate the
tracking and manipulation of specific information.         Some examples of
metadata include information about the location on a computer network where
certain data has been created, as well as information about the size of a digital
file or the standards used in the creation, storage, or transmission of the file.



                                          - 18 -
J-A21027-19


Geise v. Nationwide Life and Annuity Co. of America, 939 A.2d 409, 417

(Pa. Super. 2007) (internal citations and quotations omitted).

       We begin with an overview of the relevant principles that govern

Appellant’s challenge.       The common law best evidence rule is presently

codified at Pa.R.E. 1001-1004. Pursuant to Rule 1002, “[a]n original writing,[8]

recording, or photograph is required in order to prove its content unless these

rules, other rules prescribed by the Supreme Court, or a statute provides

otherwise.”9 Pa.R.E. 1002. If neither an original nor a duplicate writing is

____________________________________________


8 For purposes of the best evidence rule, “[a] writing consists of letters, words,
numbers, or their equivalent set down in any form.” Pa.R.E. 1001(a).
Moreover, the original of a writing refers to “the writing … itself or any
counterpart intended to have the same effect by the person who executed or
issued it. For electronically stored information, ‘original’ means any printout
– or other output readable by sight – if it accurately reflects the information.”
Pa.R.E. 1001(d). Duplicates are defined as “cop[ies] produced by mechanical,
photographic, chemical, electronic, or other equivalent process or technique
that accurately reproduces [an] original.” Pa.R.E. 1001(e). Rule 1003 states:
“A duplicate is admissible to the same extent as the original unless a genuine
question is raised about the original’s authenticity or the circumstances make
it unfair to admit the duplicate.” Pa.R.E. 1003.

9 The commentary appended to Rule 1002 explains that the common law
formulation of the best evidence rule applied whenever the terms of a writing
were “material,” a requirement that is now dealt with in Pa.R.E. 1004(d). See
Pa.R.E. 1002, cmt.; see also Commonwealth v. Green, 162 A.3d 509, 518
(Pa. Super. 2017) (en banc). Pa.R.E. 1004(d) provides that an original is not
required when a writing, recording or photograph is unrelated to a controlling
issue.    See Pa.R.E. 1004(d).      Pa.R.E. 1004 also identifies additional
circumstances in which the requirement of an original may be excused and
other evidence of content permitted, but these circumstances are not present
in this appeal. See Pa.R.E. 1004(a) (excusing requirement of original when
all originals are lost or destroyed by any action other than the proponent
acting in bad faith), 1004(b) (excusing requirement of original where original



                                          - 19 -
J-A21027-19


introduced, testimony is inadmissible to prove content. Commonwealth v.

Lewis, 623 A.2d 355, 358 (Pa. Super. 1993). The comment to Rule 1002

sets forth several underlying policy considerations for the requirement of an

original writing. In relevant part, it states:

       This rule corresponds to the common law “best evidence rule.”
       See Hera v. McCormick, 625 A.2d 682 (Pa. Super. 1993).
       [C]ommentators have [identified] four reasons justifying the rule.

       (1) The exact words of many documents, especially operative or
       dispositive documents, such as deeds, wills or contracts, are so
       important in determining a party's rights accruing under those
       documents.

       (2) Secondary evidence of the contents of documents, whether
       copies or testimony, is susceptible to inaccuracy.

       (3) The rule inhibits fraud because it allows the parties to examine
       the original documents to detect alterations and erroneous
       testimony about the contents of the document.


____________________________________________


cannot be obtained by any available judicial process), and 1004(c) (excusing
the requirement of an original where the party against whom the original
would be offered had control of the original, was on notice that the original
would be a subject of proof at a trial or hearing, and failed to produce the
original at the trial or hearing).

Although no definitive test determines when a writing is related to a controlling
issue because a party must prove its contents, writings that are viewed as
“operative or dispositive” have usually been considered subject to the rule.
See Pa.R.E. 1002, cmt. Writings that merely evidence a transaction, thing,
or event are generally not subject to the rule.           See id.; see also
Hamill-Quinlan, Inc. v. Fisher, 591 A.2d 309, 313 (Pa. Super. 1991).

Here, the Commonwealth offered the screenshots to prove Appellant’s
culpability in harassing and stalking Ms. Nesbitt. For this reason, as discussed
more fully below, we conclude that the screenshots were central to certain
controlling issues in the case and that the best evidence rule governed their
admission relevant to those issues at trial.

                                          - 20 -
J-A21027-19


       (4) The appearance of the original may furnish information as to
       its authenticity.

Pa.R.E. 1002, cmt., quoting 5 Weinstein & Berger, Weinstein's Evidence

§ 1002(2) (Sandra D. Katz rev. 1994). This Court has also observed that, “in

light of the added importance that the fact-finder may attach to the written

word, it is better to have available the exact words of a writing, to prevent the

[erroneous transmission of] critical facts which accompanies the use of written

copies or recollection, and to prevent fraud.” Lewis, 623 A.2d at 358.

       To recount, Appellant’s claim is that the best evidence rule required the

Commonwealth to produce original versions of the text messages or, failing

that, duplicate copies that accurately reproduced the originals.       Appellant

contrasts the screenshots of Ms. Nesbitt’s telephone against full forensic

downloads such as those performed on Appellant’s cellular telephone.10

Appellant points out that while the forensic downloads showed the status of a

message (e.g. read or not read), the date and time the messages was read,

from whom and to whom the messages was sent (including the name and

telephone number), the source (e.g. iMessage), the name of the body file,

and the content of the message, screenshots of the text messages sent to Ms.

Nesbitt’s telephone omitted hyperlinks, metadata, and the content of certain

messages. See Appellant’s Brief at 23. Appellant’s position is that because


____________________________________________


10 Forensic downloads on Appellant’s cellular telephone failed to produce
evidence of text messages sent to Ms. Nesbitt or evidence showing that
Appellant was the sender of such text messages.

                                          - 21 -
J-A21027-19


the screenshots omitted hyperlinks, metadata, and certain content found in

the original text messages, the screenshots do not fall within the definition of

an “original electronic document” since they cannot constitute a printout, or

other sight-readable output, that accurately reflected information found in

the source writing.   See Appellant’s Brief at 23-24, citing Pa.R.E. 1001(d)

(definition of original writing). Appellant also argues that the same omissions

exclude the screenshots from the definition of “duplicates” since they did not

accurately reproduce the original text messages. See Appellant’s Brief at 24.

Because the screenshots did not qualify as either originals or duplicates of the

text messages, the trial court erred in admitting the screenshots, as well as

any content-related testimony.

      In the alternative, Appellant argues that even if the challenged

screenshots qualified as duplicates, they nevertheless should not have been

admitted. Citing Pa.R.E. 1003 and the commentary to Rule 1002, Appellant

argues that genuine issues surrounding the authenticity of the original text

messages compel the conclusion that the screenshots were not admissible

duplicates. In questioning the authenticity of the original communications,

Appellant accuses Ms. Nesbitt of manipulating her pretrial statements to the

police to make her story more consistent with the idea that Appellant sent the

offending text messages.     See Appellant’s Brief at 27, citing N.T. Trial,

7/23/18, at 185-186. Appellant also cites his own testimony as undermining

the Commonwealth’s theory that he began sending the messages only after


                                     - 22 -
J-A21027-19


his relationship with Ms. Nesbitt ended. See Appellant’s Brief at 27. In view

of these genuine issues surrounding the source and authenticity of the original

messages, Appellant claims that information contained in the original texts

(such as hyperlinks, metadata, and certain content), but omitted from the

screenshots, could have proven that Appellant was not the sender. Under

these circumstances, Appellant concludes “it was fundamentally unfair for the

trial court to admit the screenshots in place of the original messages.”

Appellant’s Brief at 28.

      The trial court held that the screenshots constituted “original writings”

within the definition of Rule 1001(d), which provides that originals of

electronically stored information include “any printout – or other output

readable by sight – [that] accurately reflects the information.”   Trial Court

Opinion, 12/14/18, at 22, quoting Pa.R.E. 1001(d). The court considered the

original text messages to be electronically stored information which

represented data stored on the devices of both the sender and recipient, as

well as on the servers of the service providers.     See Trial Court Opinion,

12/14/18, at 22. As such, the court determined that the screenshots of the

text messages received by Ms. Nesbitt were printouts of the electronic

communications she received, which fell within the definition of an original

writing under Rule 1001(d). See id.

      The trial court also rejected Appellant’s claim that only access to full

downloads of the text messages received by Ms. Nesbitt, with accompanying


                                    - 23 -
J-A21027-19


access to related metadata, would facilitate authentication of the screenshots

as accurate reproductions of original material. While the court acknowledged

that metadata might aid in verifying the source or sender of the messages,

the court expressed skepticism as to how the metadata could verify the

accuracy of the screenshots in depicting the content of the challenged

communications. See id. Here, the court noted Ms. Nesbitt’s testimony in

which she confirmed that the screenshots accurately reflected the messages

she received. This was in line with the trial court’s prior ruling on Appellant’s

motion in limine, in which the court said it would allow Ms. Nesbitt to

authenticate    the     messages     she    received    but    consider,    on    a

message-by-message basis, the factual basis for any opinion she rendered

about the identity of the sender of each message. See N.T., 7/20/18, at 10

(“generally, [the court believes] it is appropriate that the victim is permitted

to testify that she received these messages on her phone and she took a

photograph of them. [The court believes] that’s direct knowledge . . . if she

begins to offer opinions as to who the sender is, then we will deal with what

is the factual foundation that gives rise to that opinion . . . if there is a timely

objection to that.”).    For these reasons, the court determined that the

omission of metadata from the printed screenshots did not preclude their

admission into evidence as originals pursuant to Pa.R.E. 1001(d) and 1002.

      Finally, the trial court tacitly approved admission of the screenshots as

duplicates under Pa.R.E. 1003. The court acknowledged the diminishing role


                                      - 24 -
J-A21027-19


of the best evidence rule as it applied to copies generated through advanced

technologies and improved methods of document reproduction.           See Trial

Court Opinion, 12/14/18, at 22, quoting Pa.R.E. 1003, cmt. (“[Under the

traditional best evidence rule, copies of documents were not routinely

admissible.] This view dated back to the time when copies were made by

hand copying and were therefore subject to inaccuracy. On the other hand,

Pennsylvania courts have admitted copies made by techniques that are more

likely to produce accurate copies.”). Since the screenshots were generated as

digital photographs of the original text messages, a reliable form of

reproduction recognized in Rule 1001(e), the court suggested in the

alternative that the screenshots were properly admitted as duplicates under

Rule 1003.11 See Trial Court Opinion, 12/14/18, at 23.

____________________________________________


11 For its part, the Commonwealth disputes Appellant’s contention that the
screenshots did not accurately reproduce the original text messages because
of omitted hyperlinks, metadata, and content found in certain
communications. Instead, the Commonwealth concurs in the trial court’s
conclusions that the screenshots were admissible either as originals under
Rule 1002 or, alternatively, as duplicates under Rule 1003.                 See
Commonwealth’s Brief at 12-13. To support its position, the Commonwealth
cites the definition of “metadata” found in Blacks Law Dictionary, which states:
“[metadata includes] secondary data that organize[s], manage[s,] and
facilitate[s] the use of primary data.” Id. at 13, quoting Blacks Law Dictionary
(10th ed. 2014). The Commonwealth then classifies the text in a text message
as primary data (i.e. the writing) and the metadata as secondary data, which
it deems as “extrinsic information” related to the writing. See
Commonwealth’s Brief at 13. According to the Commonwealth, a screenshot
accurately represents the primary data (or original text message) even if it
does not capture extrinsic secondary information. Id. at 13-14. As such, a
screenshot is admissible as an original, since it constitutes a printout that



                                          - 25 -
J-A21027-19


       We conclude that the trial court neither erred nor abused its discretion

in admitting the screenshots. As a preliminary matter, the record confirms

that the Commonwealth properly authenticated the screenshots prior to

admission.12 Pennsylvania law holds that authentication is a threshold inquiry

____________________________________________


accurately reflects information, or as a duplicate, since it represents an
accurate copy produced by photographic means. Id. The Commonwealth
also argues that the screenshots were properly authenticated under
Pennsylvania law, which permits authentication of electronic messages
through circumstantial evidence, including testimony from a sender or
recipient and contextual clues in the communication tending to reveal the
identity of the sender. Id. at 15, citing Commonwealth v. Mangel, 181
A.3d 1154, 1160 (Pa. Super. 2018).

12 Effective October 1, 2020, a new provision of the Pennsylvania Rules of
Evidence, Pa.R.E. 901(b)(11) (governing authentication or identification of
digital evidence), will provide in relevant part:

       Rule 901. Authenticating or identifying evidence

       (a) In General. Unless stipulated, to satisfy the requirement of
       authenticating or identifying an item of evidence, the proponent
       must produce evidence sufficient to support a finding that the item
       is what the proponent claims it is.

       (b) Examples. The following are examples only—not a complete
       list—of evidence that satisfies the requirement:

                                               ***

         (11) Digital Evidence. To connect digital evidence with a
         person or entity:

         (A) direct evidence such as testimony of a person with
         personal knowledge; or

         (B) circumstantial evidence such as:




                                          - 26 -
J-A21027-19


____________________________________________


         (i) identifying content; or

         (ii) proof of ownership, possession, control, or access to a
         device or account at the relevant time when corroborated by
         circumstances indicating authorship.

       Pa.R.E. 901(b)(11) has no counterpart in the Federal Rules of
       Evidence. “Digital evidence,” as used in this rule, is intended to
       include a communication, statement, or image existing in an
       electronic medium. This includes emails, text messages, social
       media postings, and images. The rule illustrates the manner in
       which digital evidence may be attributed to the author.

       The proponent of digital evidence is not required to prove that no
       one else could be the author. Rather, the proponent must produce
       sufficient evidence to support a finding that a particular person or
       entity was the author. See Pa.R.E. 901(a).

       Direct evidence under Pa.R.E. 901(b)(11)(A) may also include an
       admission by a party-opponent.

       Circumstantial evidence of identifying content under Pa.R.E.
       901(b)(11)(B)(i) may include self-identification or other
       distinctive characteristics, including a display of knowledge only
       possessed by the author. Circumstantial evidence of content may
       be sufficient to connect the digital evidence to its author.

       Circumstantial evidence of ownership, possession, control, or
       access to a device or account alone is insufficient for
       authentication of authorship of digital evidence under Pa.R.E.
       901(b)(11)(B)(ii). See, e.g., Commonwealth v. Mangel, 181
       A.3d 1154, 1163 (Pa. Super. 2018) (social media account bearing
       defendant's name, hometown, and high school was insufficient to
       authenticate the online and mobile device chat messages as
       having been authored by defendant). However, this evidence is
       probative in combination with other evidence of the author's
       identity.

       Expert testimony may also be used for authentication purposes.
       See, e.g., Commonwealth v. Manivannan, 186 A.3d 472 (Pa.
       Super. 2018).



                                          - 27 -
J-A21027-19


for   all   evidence   and    provides     that    the   following   principles   govern

authentication of digital communications such as text messages.

       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. See 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. See 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). See Pa.R.E. 901(b)(4).

       Pennsylvania appellate courts have considered the authentication
       of computerized instant messages and cell[ular tele]phone text
       messages. See In the Interest of F.P., a Minor, 878 A.2d 91,
       96 (Pa. Super. 2005) (computerized instant messages);
       Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011),
       affirmed by an equally divided court, 106 A.3d 705 (Pa. 2014)
       (cell phone text messages)[.]

       [In Koch, this Court held that 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 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. The panel in
       Koch was mindful, however, of the difficulty with establishing
       authorship of text message in certain cases. Because more than
       one individual can access an electronic device without permission,
       the    Koch     Court    ruled,   “authentication   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.]



____________________________________________




Pa.R.E. 901(b)(11) and cmt. (effective October 1, 2020).

                                          - 28 -
J-A21027-19


Commonwealth v. Mangel, 181 A.3d 1154, 1160 (Pa. Super. 2018). The

Commonwealth must provide sufficient evidence from which a factfinder could

reasonably ascertain the authenticity of the records (i.e. identity of the sender

and confirmation that the document is what it purports to be) by a

preponderance of the evidence. See id. at 1161.

      The Commonwealth offered sufficient direct and circumstantial evidence

to establish the authenticity of the screenshots. Ms. Nesbitt, as the recipient

of the text messages depicted in the screenshots, offered direct authenticating

testimony in which she confirmed that the screenshots accurately reflected

the messages she received.      See Mangel, 181 A.3d at 1162 (recognizing

recipient or sender testimony as direct evidence of authenticity). In addition,

the Commonwealth proffered circumstantial evidence that identified Appellant

as the sender of the messages. Ms. Nesbitt testified that she never received

harassing test messages before terminating her relationship with Appellant.

N.T. Trial, 7/23/18, at 82.    Ms. Nesbitt also testified that she received a

harassing text message stating that the sender was observing her in a

restaurant and police officials were later able to determine that an application

installed on her cellular telephone was sharing her location with an individual

named “Daniel Talley.” Id. at 86-89. In addition, the text messages received

by Ms. Nesbitt referred to specific sexual acts that occurred during intimate

moments in the relationship between Appellant and Ms. Nesbitt.            Id. at

123-124.   Apart from Ms. Nesbitt, only Appellant possessed knowledge of


                                     - 29 -
J-A21027-19


those acts.     Id.   The text messages received by Ms. Nesbitt also included

phrases such as “fake love,” an idiom commonly used by Appellant. Id. at

133-134. Lastly, police officials uncovered software on Appellant’s computer

that enabled him to send anonymous text messages. N.T. Trial, 7/24/18, at

306-309. In sum, the Commonwealth introduced direct testimony showing

that the screenshots accurately reflected the text messages Ms. Nesbitt

received. In addition, the Commonwealth produced circumstantial evidence

linking Appellant to the messages received by Ms. Nesbitt, including

Appellant’s access to a device capable of sending anonymous text messages,

displays of knowledge known only to Appellant and Ms. Nesbitt, and the use

of   distinct   linguistic   phrases   commonly   used   by   Appellant.    The

Commonwealth therefore met its burden of authenticating the screenshots.

      Having concluded that the Commonwealth properly authenticated the

screenshots, we turn now to Appellant’s claim that the best evidence rule

nevertheless barred their use at trial because they omitted certain features

contained in the original text messages. Pertinent to this question, this Court

has previously observed that:

      “Nevertheless[, the best evidence rule embodied at Pa.R.E. 1002]
      is applicable only in circumstances where the contents of the
      writing, recording or photograph are integral to proving the
      central issue in a trial[.] Consequently, if the Commonwealth is
      introducing a writing, recording, or photograph at trial, Rule 1002
      requires that the original be introduced only if the Commonwealth
      must prove the contents of the writing, recording or photograph
      to establish the elements of its case.” [Commonwealth v.
      Fisher, 764 A.2d 82, 88 (Pa. Super. 2000) (“The best evidence
      rule is controlling only if the terms of [the proposed evidence]

                                       - 30 -
J-A21027-19


      must be proved to make a case or provide a defense[.]”) (citation
      omitted), appeal denied, 759 A.2d 385 (Pa. 2000)]. “The rule is
      not implicated just because evidence is relevant;” the rule applies
      if the writing, recording, or photograph is necessary to prove the
      elements of a case. [Commonwealth v. Townsend, 747 A.2d
      376, 380-381 (Pa. Super. 2000)]. In other words, the content of
      the video must be material to, and not just mere evidence of, the
      issues at bar for the best evidence rule to apply. [Lewis, 623
      A.2d at 358.] “If the Commonwealth does not need to prove the
      content of the writing or recording to prove the elements of the
      offense charged, then the Commonwealth is not required to
      introduce the original writing or recording.” Commonwealth v.
      Dent, 837 A.2d 571, 590 (Pa. Super. 2003)[;] see also Fisher,
      supra ([no] violation of best evidence rule occurs with admission
      of duplicate tape recordings of defendant's taunting voice mail
      messages, where tapes did not establish fundamental components
      of any offenses charged); Townsend, supra ([no] violation of
      best evidence rule occurred where trial court allowed detective to
      testify regarding content of defendant's written confession, even
      though written confession was not admitted into evidence;
      content of confession made             persuasive   evidence     for
      Commonwealth's case but was not necessary to establish
      elements of crimes of burglary and assault, which had no elements
      requiring proof of content of confession or any other writing). The
      Comment to Rule 1002 suggests “recordings and photographs are
      usually only evidence of the transaction, thing or event. It is rare
      that a recording or photograph would be operative or
      dispositive[.]” Pa.R.E. 1002, [cmt].

Commonwealth v. Green, 162 A.3d 509, 518-519 (Pa. Super. 2017) (en

banc).

      Because Appellant’s claims surrounding the features omitted from the

screenshots implicate only the identity of the individual who sent the

messages, and not the accuracy with which the screenshots depicted the

contents of the original communications, we conclude that Appellant’s claims

fall outside the scope of the best evidence rule. We explain.




                                     - 31 -
J-A21027-19


       The gravamen of the Commonwealth’s case against Appellant alleged

that he harassed and stalked Ms. Nesbitt by sending her volumes of

threatening text messages. Because those messages were the basis of the

charges leveled by the Commonwealth against Appellant, the Commonwealth

needed to prove that the “substantive content”13 of the messages established

the elements of the charged offenses. To prove the substantive content of

the messages, the Commonwealth introduced the screenshots at trial.

Moreover, because the content of the original messages was an essential

component in a successful prosecution of Appellant, the Commonwealth, as

the proponent of the screenshots, needed to demonstrate the admissibility of

the screenshots under the best evidence rule. Insofar as the screenshots were

introduced to establish the substantive content of the original text messages,

we agree with the trial court that the screenshots were admissible, either as

authenticated printouts of the original electronic text messages under Pa.R.E.

1001(d), or as authenticated duplicates generated through a photographic

process that accurately reproduced the original messages within the

contemplation of Pa.R.E. 1001(e).

       Although Appellant repeatedly takes aim at “genuine issues of

authenticity” involving the original text messages and the resultant unfairness


____________________________________________


13 We employ the term “substantive content” to refer to the content of the
original text messages received by Ms. Nesbitt separate and apart from the
hyperlinks, metadata, and limited portions of text that were omitted from the
screenshots.

                                          - 32 -
J-A21027-19


of admitting the screenshots as originals or as duplicates in their place, in

point of fact Appellant’s challenge is wholly focused on the potential probative

value of the omitted features in showing the source of the offending

communications.14 Appellant does not claim that omissions in the screenshots

lead to inaccuracies in their depiction of the substantive content of the original

text messages.       In addition, Appellant does not allege that the omitted

features rendered the screenshots incapable of showing that the original

communications established the elements of the charged offenses.             Most

importantly, Appellant does not claim that the hyperlinks, metadata, and other

content found in the original text messages, but omitted from the screenshots,

were material or essential in proving the identity of the individual who

authored or sent the text messages. Put differently, Appellant does not allege

that either he or the Commonwealth needed to prove the content of the

original text messages in order to show who sent the original communications.

Instead, Appellant’s claim is only that the omitted features may have

facilitated an assessment of the authorship of the messages and, therefore,

may have some relevance in determining the identity of the sender. While

Appellant may be correct that the omitted features possessed some probative

value in identifying the author of the original communications, he has not


____________________________________________


14 As we stated above, the Commonwealth properly authenticated the
screenshots by introducing direct and circumstantial evidence to show that
they were what they purported to be and that they could be linked to Appellant
as the author and sender of the communications.

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alleged, much less shown, that the content of those communications was

essential in proving who sent the messages.         In the absence of such a

showing, the original messages, along with the hyperlinks, metadata, and

other content omitted from the screenshots, possessed only potential

relevance concerning the messages sent to Ms. Nesbitt. The best evidence

rule is triggered, however, only when the contents of a writing are essential,

not merely relevant, in proving a claim or defense. See Townsend, 747 A.2d

at 380-381. As such, the trial court did not violate the best evidence rule in

admitting the screenshots. Accordingly, Appellant is not entitled to relief.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/17/20




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