Authentication of Social Media Evid. Evaluated on Case-by-Case Basis — Proponent Must Corroborate ID of Author (Good Quotes) — Contextual Clues Inadequate Where No IP Address Obtained & 11 Other Pages Have Same Name

 Commonwealth v. Gardner, 2019 Pa. Super. Unpub. LEXIS 3055 (Pa. Super. Ct. Aug. 13, 2019):

Appellant, Leo A. Gardner, appeals from the Judgment of Sentence entered in the Monroe County Court of Common Pleas on August 16, 2018, following his jury conviction of Attempted Murder, Aggravated Assault, Terroristic Threats, and Simple Assault.1 On appeal, Appellant challenges the weight of the evidence and an evidentiary ruling. After careful review, we affirm.

The Commonwealth charged Appellant with, inter alia, the above crimes following his violent attack of Brittany Seitz. Appellant's two-day jury trial commenced on June 19, 2018.

At trial, the Commonwealth presented the testimony of a number of witnesses including eyewitnesses Hericson Torres, Brandon Caron, and State Troopers Anthony Paciotti and Ian MacMillan. Appellant presented the testimony of an investigator, Joseph Alercia, and also testified on his own behalf, asserting that he had been acting in self-defense.

We glean the following relevant facts from our review of the record, [*2]  including the trial court's Pa.R.A.P. 1925(a) Opinion. Appellant and Brittany Seitz spent April 26, 2017, together ingesting drugs, including methamphetamine, and driving around Monroe County. Late that evening, or in the early hours of April 27, 2017, Ms. Seitz pulled her car over to the side of the road, whereupon she and Appellant engaged in a physical altercation.2

Hericson Torres's testimony revealed that, in the early morning hours of April 27, 2017, his wife woke him after she heard a female screaming outside their home. Mr. Torres testified that he walked outside and heard a female voice screaming for help. At around 3:30 AM, he went to investigate the voice, bringing with him a flashlight, a tee-ball bat, and a knife.

Brandon Caron testified that he also left his home in the early hours of that morning to investigate after hearing a female voice yell, "Help. He's killing me." He testified that when he arrived he found Appellant on top of Ms. Seitz, dragging her into the woods, biting her, with his fingers in her eyes. Ms. Seitz was lifeless, and Mr. Caron testified that he believed she was dead. Mr. Caron further testified that he yelled at Appellant to stop, and Appellant responded by stating [*3]  something akin to "get out of here. I stabbed her in the throat . . . I slit her throat . . . get out of here or I'll kill you too."3

Mr. Torres testified that, when he arrived on the scene, Mr. Caron reported that Appellant was eating Ms. Seitz, and that, due to the darkness, Mr. Torres thought Appellant may actually have been a bear. Mr. Torres also testified that he thought Ms. Seitz was dead.

The testimony indicated that Mr. Torres and Mr. Caron attempted to stop Appellant by hitting, pushing, and kicking him. Their efforts were, however, unsuccessful. Instead, Appellant warned them to mind their own business and threatened to kill them.

At approximately 4:00 AM, Troopers Anthony Paciotti and Ian McMillan arrived at the scene. They observed Appellant continue to attack Ms. Seitz while she lay lifeless on the ground. Trooper Paciotti saw Appellant on his hands and knees on top of Ms. Seitz, with his face in contact with Ms. Seitz's face. Appellant refused Trooper Paciotti's command to get off Ms. Seitz. Trooper Paciotti proceeded to kick Appellant off Ms. Seitz. Trooper Paciotti observed that Appellant was naked except for his underwear and incoherent.

Once they removed Ms. Seitz [*4]  from the scene, the troopers observed that Appellant had partially amputated Ms. Seitz's nose, and she had sustained multiple bruises and bites. Both of her eyes were swollen shut. They transported her to the hospital. Troopers also took Appellant to the hospital where doctors treated him for a collapsed lung, head trauma, broken bones, and multiple stab wounds. Lab tests revealed that Appellant had toxic levels of methamphetamine in his blood.

In his case-in-chief, Appellant claimed that he had been acting in self-defense. In support of this claim, Appellant sought to introduce evidence of Ms. Seitz's alleged propensity for violence. This evidence included excerpts of a personal Facebook page Appellant alleged belonged to Ms. Seitz.4 In particular, the proffered Facebook posts included a statement, allegedly posted by Ms. Seitz two days prior to this incident, that "if she killed someone it would be her psychiatrist's fault." N.T., 6/20/18, at 46. The post also contains an admission by the author that "she has post-traumatic stress disorder and anxiety . . . and she takes psychiatric mediation[.]" Id. at 47.

To authenticate the Facebook page, Appellant presented the testimony of Joseph Alercia, [*5]  an investigator who had previously met with Ms. Seitz about another case where she was a complaining witness.5,6 Outside the presence of the jury,7 Mr. Alercia testified that he was familiar with Ms. Seitz and knew that she had a psychiatric diagnosis for which she takes prescription medication, although he did not indicate how he knew this information about Ms. Seitz. He further testified that he was familiar with Ms. Seitz's Facebook page, and that the photographs of the woman associated with the Facebook page Appellant sought to introduce as evidence were photographs of Ms. Seitz. He also testified that the Facebook page indicates that its owner is: (1) located in the East Stroudsburg area, which is where Ms. Seitz lives; (2) is originally from New York, which is where Ms. Seitz originates; and (2) went to the same high school as Ms. Seitz.

On cross-examination, Mr. Alercia admitted that he did not know that there were 11 Facebook accounts whose owners were named "Brittany Seitz." He conceded that he had never met Ms. Seitz and that she had not admitted to authoring the post Appellant sought to admit as evidence. He also conceded that he did not obtain an IP address, email [*6]  address, or password for the Facebook account at issue.

Relying on Commonwealth v. Mangel, 2018 PA Super 57, 181 A.3d 1154 (Pa. Super. 2018), the trial court found Appellant's authentication efforts insufficient to establish that the Facebook account in question belonged to Ms. Seitz, the victim.8 Thus, the trial court precluded admission of this evidence.

Appellant testified on his own behalf. He claimed that Ms. Seitz had initially instigated the altercation between them and had stabbed him in the back.

The jury did not credit Appellant's claim that he was acting in self-defense when he attacked Ms. Seitz. It returned a guilty verdict on June 21, 2018. On August 16, 2018, the trial court sentenced Appellant to serve an aggregate term of 121/2 years less one day to 25 years less one day of incarceration.

On August 23, 2018, Appellant filed a Post-Sentence Motion challenging the weight of the evidence and the discretionary aspects of his sentence. The trial court denied the Motion on August 28, 2018.

This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Should the [c]ourt have admitted a statement on the alleged victim's Facebook page stating that "if she killed someone, it would [*7]  be her psychiatrist's fault," in a case where self-defense was argued by [Appellant], and [Appellant] called a witness to testify that he was familiar with the victim's Facebook page?

2. Was the jury's verdict finding [Appellant] guilty of Attempted Murder against the weight of the evidence?

Appellant's Brief at 6.

In his first issue, Appellant claims that the trial court erred in excluding on authentication and relevance grounds an excerpt from a Facebook account purportedly owned by Ms. Seitz that Appellant alleges demonstrates Ms. Seitz's propensity for violence.9 Id. at 16-19.

"When reviewing a trial court's denial of a motion in limine, this Court applies an [ ] abuse of discretion standard of review." Commonwealth v. Schley, 2016 PA Super 46, 136 A.3d 511, 514 (Pa. Super. 2016). "An abuse of discretion will not be found based on a mere error of judgment, but rather exists where the court has reached a conclusion which overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Id. (citation omitted).

Relevance is the threshold for admissibility of evidence. Commonwealth v. Cook, 597 Pa. 572, 952 A.2d 594, 612 (Pa. 2008). Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Pa.R.E. 401; Commonwealth v. Serge, 586 Pa. 671, 896 A.2d 1170, 1177 (Pa. 2006). "Evidence that is not relevant is not admissible." Pa.R.E. 402.

Additionally, 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 [*9]  by other parts of subsection (b), including circumstantial evidence pursuant to subsection (b)(4). See Pa.R.E. 901(b)(4).

The "authentication [of] 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." Mangel, 181 A.3d at 1162. Moreover, "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." Id.

In support of his authentication claim, Appellant argues that the Facebook statement itself offers "contextual clues" that Ms. Seitz was its author. Id. at 16-17. He also argues that his testimony that he saw Ms. Seitz take prescription medication he believed was for her psychiatric diagnosis throughout the day that he attacked her, and that Ms. Seitz was on the phone with her doctor and upset about her medication, provides "context" to authenticate that Ms. Seitz had written the Facebook post. Id. at 16-17. According to Appellant, Ms. Seitz's medical records, which the court admitted into evidence, [*10]  reflecting her anxiety, bipolar, and post-traumatic stress disorder diagnoses, also provided authenticating evidence. Id. at 17. Last, Appellant argues that Mr. Alercia's testimony authenticated the post. Id.

Appellant also asserts that this Facebook post is relevant to his self-defense claim because it proves that Ms. Seitz had a propensity for violence. Id. at 18. In particular, Appellant avers that this post supports his claim that Ms. Seitz instigated the altercation between them, and that Appellant bit her only after she had stabbed him in the back. Id. at 18-19.

The Honorable David J. Williamson, who presided over Appellant's trial, has authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record and relevant case law in addressing Appellant's claim. See Trial Court Opinion, 11/28/18, at 18-21 (finding: (1) Appellant's witness's testimony was insufficient to authenticate the Facebook post; (2) the Facebook post was not relevant evidence of Ms. Seitz's propensity for violence because it constituted "more of a statement than a threat;" and (3) contrary to Appellant's contention, the Facebook post was not essential to Appellant's self-defense claim). Our review of the record, including the [*11]  Notes of Testimony from Appellant's trial, supports the trial court's conclusion. We, thus, conclude that the trial court did not abuse its discretion in excluding the proffered evidence, and we affirm on the basis of the trial court's Opinion.

In his second issue, Appellant contends that the jury's guilty verdict on the Attempted Murder charge was against the weight of the evidence. Appellant's Brief at 19-21. He argues that the Commonwealth failed to present evidence that Ms. Seitz's injuries were life threatening; therefore, Appellant's conviction for Attempted Murder for biting off Ms. Seitz's nose shocks the conscience. Id. at 20. Rather, he claims that the "un-contradicted evidence from trial was that [Appellant] bit her in order to prevent Ms. Seitz from stabbing him to death." Id.

When considering challenges to the weight of the evidence, we apply the following precepts. "The weight of the evidence is exclusively for the finder of fact, who is free to believe all, none[,] or some of the evidence and to determine the credibility of the witnesses." Commonwealth v. Talbert, 2015 PA Super 269, 129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted). Resolving contradictory testimony and questions of credibility are matters for the finder of fact. [*12]  Commonwealth v. Hopkins, 2000 PA Super 47, 747 A.2d 910, 917 (Pa. Super. 2000). It is well-settled that we cannot substitute our judgment for that of the trier of fact. Talbert, supra at 546.

Moreover, appellate review of a weight claim is a review of the trial court's exercise of discretion in denying the weight challenge raised in the post-sentence motion; this court does not review the underlying question of whether the verdict is against the weight of the evidence. See id. at 545-46. "Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is [or is not] against the weight of the evidence." Id. at 546. "One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice." Id.

Furthermore, "[i]n order for a defendant to prevail on a challenge to the weight of the evidence, the evidence must be so tenuous, vague and uncertain that the verdict shocks the conscience of the court." Id. (internal quotation marks and citation omitted). As [*13]  our Supreme Court has made clear, reversal is only appropriate "where the facts and inferences disclose a palpable abuse of discretion[.]" Commonwealth v. Morales, 625 Pa. 146, 91 A.3d 80, 91 (Pa. 2014) (citations and emphasis omitted).

"[A] true weight of the evidence challenge concedes that sufficient evidence exists to sustain the verdict but questions which evidence is to be believed." Commonwealth v. Thompson, 2014 PA Super 273, 106 A.3d 742, 758 (Pa. Super. 2014). For that reason, the trial court need not view the evidence in the light most favorable to the verdict winner, and may instead use its discretion in concluding whether the verdict was against the weight of the evidence. Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 n.3 (Pa. 2000).

Instantly, the jury credited the testimony of the Commonwealth's witnesses over Appellant's testimony that he was acting in self-defense. Appellant essentially asks this Court to reassess the credibility of the Commonwealth's witnesses and Appellant, and reweigh the testimony and evidence presented at trial. We cannot and will not do so. Our review of the record shows that the evidence is not tenuous, vague, or uncertain, and the verdict was not so contrary as to shock the court's conscience. Accordingly, we discern no abuse of discretion in the trial court's denial of Appellant's weight claim.

Judgment of Sentence affirmed.

 


In Appellant's version of events, Ms. Seitz instigated the altercation; in the Commonwealth's version, Appellant was the instigator.

See N.T., 6/19/18, at 75.

Appellant proffered this evidence to demonstrate Ms. Seitz's state of mind and her propensity for violence. See N.T., 6/20/18, at 46, 49.

Appellant also intended for Mr. Alercia to testify about Ms. Seitz's reputation in the community for violence to support Appellant's self-defense claim. See N.T., 6/20/18, at 40-41.

Ms. Seitz did not attend Appellant's trial and her whereabouts were unknown at that time. Ms. Seitz could not, therefore, testify that she had authored the Facebook post at issue.

The trial court characterized this as "technically[] a motion in limine as to whether or not [the court would] allow evidence here from this witness about a Facebook post of the victim in this case." N.T., 6/20/18, at 50.

In Mangel, 2018 PA Super 57, 181 A.3d 1154 (Pa. Super. 2018), this Court affirmed the trial court's order denying the Commonwealth's motion in limine where the Commonwealth's computer forensics expert testified that she had located only one Facebook account bearing the defendant's name and that this Facebook profile matched screenshots of messages attributed to the defendant, listed the defendant's home town and school, and was registered to an email address and phone number attributable to the defendant. Id. at 1156-57. On cross-examination, however, the expert admitted that she did not obtain an IP address for the account and that there were, in fact, five accounts bearing the same name. Id. at 1157.

The content of the Facebook post is as follows:

I got absolutely no sleep last night... And I feel like complete dog shit. I'm gonna fucking lose it... I'm sick of being miserable cause my [piece] of shit psych stopped my meds and he saw me for the first fucking time didn't talk to me at all... All he fucking did was completely stop my fucking meds... So if I lose my fucking mind and kill someone it would be on them... I'm sick of being fucking miserable I can't fucking sleep and my anxiety and ptsd is out of fucking control now ... I hope someone [wakes] the fuck up time and shoots me in the fucking face!!! At least then I wouldn't have to deal with fucking asshole who [*8]  don't know how to do [their] fucking job!!!

Appellant's Brief at Exhibit A.

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