Social Media Evidence — Pick Your User Name At Your Peril: Facebook User Name Admitted Over Objection That It Constituted Inadmissible Character Evidence

Commonwealth v. Clancy, 2017 Pa. Super. Unpub. LEXIS 673 (Pa. Super. Ct. Feb. 22, 2017):

Appellant, Javonn Eric Clancy, appeals from the order entered in the Beaver County Court of Common Pleas, which denied his first petition brought pursuant to the Post Conviction Relief Act ("PCRA").1 We affirm.

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Our standard of review of the denial of a PCRA petition is limited to examining whether the record supports the court's determination and whether the court's decision is free of legal error. Commonwealth v. Ford, 947 A.2d 1251 (Pa.Super. 2008), appeal denied, 598 Pa. 779, 959 A.2d 319 (2008). This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings. Commonwealth v. Boyd, 923 A.2d 513 (Pa.Super. 2007), appeal denied, 593 Pa. 754, 932 A.2d 74 (2007). If the record supports a post-conviction court's credibility determination, it is binding on the appellate court. Commonwealth v. Dennis, 609 Pa. 442, 17 A.3d 297 (2011).

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Appellant further argues trial counsel should have objected to the Commonwealth's use of Appellant's Facebook profile name, Snitch-Free Jay, which impugned Appellant's character. Appellant contends the Commonwealth used Appellant's Facebook username to label Appellant as "snitch free," imply Appellant had something to hide, and depict Appellant's consciousness of guilt. Appellant submits the Commonwealth's illustration of him as "snitch free" eroded Appellant's defense in pursuit of a voluntary manslaughter verdict. Appellant maintains trial counsel was ineffective for failing to object to the Commonwealth's use of Appellant's Facebook profile name as unduly prejudicial character evidence. Appellant concludes this Court should reverse and remand for a new trial. We disagree.

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Regarding Appellant's claim that his Facebook username was objectionable as inadmissible character evidence, the PCRA court also explained:

   [T]here is clearly no issue whatsoever that [Appellant] [*27]  created and exercised control over the Facebook page titled "Snitch-Free Jay," that he himself selected that name to identify himself, and that the Facebook page referred to him. It is also plain based upon that, the testimony which was given was neither exclusive to [Appellant] nor utilized as character evidence against him. Rather, the "snitch free" mentality in both the testimony and the argument by counsel for both sides was generalized to the entire community in Linmar, where many people other than [Appellant] regularly refuse to cooperate with police investigations. The entire point of this evidence...was to show that [Appellant] did not believe that witnesses would come forward to inculpate him. [Appellant]'s trial counsel also used this evidence in his closing argument against the credibility of the Commonwealth's witnesses.

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[W]hatever the Commonwealth's secret theory of the case may or may not have been [concerning Appellant's Facebook profile name], that was not how the [Facebook username] evidence was used or presented, nor what it was admitted to show. To the extent the Commonwealth made the statements it did [about its theory of the case], they were argument at sidebar, not [*28]  evidence. They were out of the hearing of the jury.

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Further, the testimony clearly shows that, despite repeated attempts, [Appellant] refused to be responsive to the Commonwealth's questions [on cross-examination of Appellant]. In spite of this, [Appellant]'s attorney did in fact ultimately raise an objection. The [c]ourt also notes that it instructed the jury at the very commencement of the trial that questions and statements by counsel are not evidence and how the jury should understand objections and sidebar proceedings.

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The [c]ourt...gave the standard instruction on consciousness of guilt due to the evidence of [Appellant]'s flight and concealment, which was supported by the Facebook evidence as showing that [Appellant] knew that he was wanted. [N.T. Trial, 4/12/13, at 64-65].

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[Appellant]...admittedly made the Facebook page and chose to identify himself by the moniker, "Snitch-Free-Jay." Then, after killing [Victim] and fleeing to the house of a person [whom] he adamantly refused to identify on cross-examination, contacted a relation of [Victim] through his Facebook page.... These were all important facts for the jury to consider as not only part of the history and natural development [*29]  of the events and the offenses, but as relevant evidence regarding [Appellant]'s knowledge that he was wanted, the absence of mistake, consciousness of guilt, identification, motive, and [Appellant]'s credibility as a witness.

In [Commonwealth] v. King, [959 A.2d 405 (Pa.Super. 2008)], the defendant complained that he was unfairly prejudiced by testimony concerning a t-shirt which he wore prior to murdering his victim. [Id. at 417.] The front of the t-shirt bore a red stop sign and the words, "Stop Snitching," and a tombstone on the back with "R.I.P." written on it. Id. at 418. The defendant told the detective investigating the case that it was a warning and indicated that the tombstone image was what happened to people who snitch on him. Id. The court in King held that it was properly admissible as being relevant and showing the motive of the defendant in killing the victim and that the defendant was not prejudiced. Id. ...

As the defendant in King, so in this case [Appellant] "clothed" himself with the moniker "Snitch-Free-Jay." He shot [Victim] and fled the scene, and then had a dispute with a witness, one of [Victim's] own relations, through his Facebook page that bore the name he admittedly chose. To the extent the name was used in evidence [*30]  and argument by [the Commonwealth], it was to show [Appellant]'s identity, consciousness of guilt, and absence of mistake, as well as the fact that the "snitch free" mentality was not limited to [Appellant], but rather was general to the entire community. Just as in King the "stop snitching" t-shirt showed the defendant's state of mind in murdering [Victim], so in this case [Appellant]'s "snitch free" profile showed his own consciousness of guilt and state of mind in murdering his victim, i.e., that he fled the scene and believed that due to the uncooperative mentality of the locale he would not be inculpated. ...

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Most important of all, however, is that no evidence was presented to show that [Appellant] neglected to cooperate in other cases or at other times. Nor was evidence admitted that [Appellant] has a history of not cooperating, or that he has a reputation of not cooperating, or that he has some innate trait that makes him less likely to cooperate. In short, no character evidence was presented. Rather, the evidence showed that he selected a unique name for his Facebook profile to identify himself by, and which evidently reflected his personal opinion or belief, i.e., his [*31]  mental state, that people should not cooperate with law enforcement. [Appellant] thus confuses identity, beliefs, and states of mind with character traits. The Rules of Evidence, however, make a sharp and practical distinction between the two. See, e.g., Pa.R.E. 404(b)(2) (distinguishing between evidence presented to show "a person's character" and evidence offered for "another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident"). ...

If anyone in this case demonstrated [Appellant]'s personal belief that people should not be cooperative with the authorities, he did so himself on cross-examination when he adamantly refused, in spite of his oath, to identify where we went or [whom] he was with. When [Appellant] chose to testify, he exposed himself as a witness to cross-examination. A witness, even a defendant-witness, is subject to having [his] credibility tested. Pa.R.E. 607 ([stating:] "The credibility of a witness may be impeached by any evidence relevant to that issue, except as otherwise provided by statute or these rules"). [Appellant] was not confronted with character evidence nor with prior crimes or wrongs. He was confronted [*32]  with the name he identified himself as, a name which was circumstantial evidence of his identity as well has his personal opinion and beliefs about speaking to authorities. This type of belief, clearly evidenced by [Appellant] not in some other case, but in this case, on the witness stand, at trial, under oath, before the jury, goes directly to [Appellant]'s credibility as a witness, and the jury was entitled to hear it.

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Because the [Facebook] evidence was admissible on multiple bases, because the jury was properly instructed, because the argument the jury heard was based on the evidence at trial and responsive to [Appellant]'s argument..., [Appellant]'s argument that his trial counsel should have objected has no arguable merit. His trial counsel was therefore not ineffective.

(Id. at 24-37) (internal citations omitted). Accordingly, the PCRA court reasoned the claims underlying both of Appellant's ineffective assistance of counsel issues lacked arguable merit. See Turetsky, supra.

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Accordingly, the PCRA court determined Appellant had failed to show that but for trial counsel's alleged ineffectiveness, there is a reasonable probability the trial outcome would have been different. See Turetsky, supra. The record supports the court's analysis, and we see no reason to disturb it. See Ford, supra; Harris, supra. Therefore, Appellant's ineffective assistance [*38]  of counsel claims fail.

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