Com. v. Brooks, M.

J-A18009-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL JAMES BROOKS :
:
Appellant : No. 1318 WDA 2019

Appeal from the Judgment of Sentence Entered June 27, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0014713-2018

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL JAMES BROOKS :
:
Appellant : No. 1319 WDA 2019

Appeal from the Judgment of Sentence Entered June 27, 2019
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0012609-2018

BEFORE: BENDER, P.J.E., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 24, 2020

Appellant, Michael James Brooks, appeals from the aggregate judgment

of sentence of two to four years’ imprisonment, followed by four years’

probation, imposed after he was convicted, in two separate cases, of

displaying obscene/sexual materials (18 Pa.C.S. § 5903(a)(1)), harassment

(18 Pa.C.S. § 2709(a)(4)), terroristic threats (18 Pa.C.S. § 2706(a)(1)), and
J-A18009-20

intimidation of witnesses (18 Pa.C.S. § 4952(a)(1)). After careful review, we

affirm.

The trial court set forth a detailed summary of the facts of this case,

which we need not reproduce herein. See Trial Court Opinion (TCO), 1/9/20,

at 5-9. Briefly, Appellant was arrested and charged with displaying

obscene/sexual materials and harassment after he posted sexually explicit

photographs of his former girlfriend on Facebook. He then threatened to kill

the victim in open court after she testified at his preliminary hearing on those

charges, resulting in his being charged with the additional offenses of

terroristic threats and intimidation of witnesses.

Following a non-jury trial on April 9, 2019, Appellant was convicted of

the above-stated offenses. On June 27, 2019, he was sentenced as set forth

supra, and he filed a timely motion for reconsideration of his sentence on July

1, 2019. The court denied that motion on July 25, 2019. Appellant then filed

timely notices of appeal at each docket number, and this Court sua sponte

consolidated his appeals on September 20, 2019. Appellant also complied

with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal. Herein, he presents four issues for our

review:

I. Did the trial court err when it permitted the introduction of
Facebook postings when the evidence is hearsay and the
Commonwealth failed to authenticate the Facebook postings as
required under Pa.R.E. 901?

II. Was the evidence insufficient in proving beyond a reasonable
doubt on displaying obscene/sexual material and harassment in

-2-
J-A18009-20

that the evidence was extremely weak that the posts were in fact
made by [Appellant]?

III. Was the evidence insufficient in proving beyond a reasonable
doubt on intimidation of witnesses since [Appellant’s] statements
occurred after his preliminary hearing was concluded?

IV. Did the trial court abuse its discretion when it imposed two
consecutive sentences that resulted in a manifestly excessive and
unreasonable sentence without consideration of [Appellant’s]
rehabilitative needs, or his nature and characteristics instead
focused primarily on the severity of the crime and the impact on
the victim?

Appellant’s Brief at 7 (unnecessary capitalization and emphasis omitted).

In reviewing these four issues, we have assessed the certified record,

the briefs of the parties, and the applicable law. Additionally, we have

considered the thorough opinion of the Honorable Beth A. Lazzara of the Court

of Common Pleas of Allegheny County. We conclude that Judge Lazzara’s

well-reasoned decision accurately disposes of the issues presented by

Appellant.1 Accordingly, we adopt her opinion as our own and affirm

Appellant’s judgment of sentence for the reasons set forth therein.

Judgment of sentence affirmed.

____________________________________________

1We note that Judge Lazzara addresses a weight-of-the-evidence claim that
Appellant has abandoned on appeal. See TCO at 20-21. We do not adopt, or
express any position on, Judge Lazzara’s disposition of that issue.

-3-
J-A18009-20

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/24/2020

-4-
 Circulated 08/25/2020 08:57 AM

IN THE COURT OF COMMON
PLEAS OF ALLEGHENY COUNTY,
PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA,
CC Nos. 2018-12609
2018-14713
V.

MICHAEL JAMES BROOKS,

Defendant.
OPINION

ORIGINAL
Criminal Division
Dept. Of Court Records BETH A. LAZZARA, JUDGE
Allegheny County PA
Court of Common Pleas

Copies Sent To:

Mike W. Streily, Esq.
Office of the District Attom
401 Courthouse
Pittsburgh, PA 15219

Christine M. Selden, Esq.
Office of the Public Defender
400 County Office Bldg
542 Forbes Avenue
Pittsburgh, PA 15219
 IN THE COURT OF
COMMON PLEAS OF
ALLEGHENY COUNTY, PEN
SYLVANIA

COMMONWEALTH OF
PENNSYLVANIA, CRIMINAL DIVISI,N
vs. ,

CC Nos.2018-12609
2018-14713
MICHAEL JAMES BROOKS,

Defendant.

OPINION

This is a direct appeal
from the judgments of
sentence enteriad on June
27, 2019, following a
non -jury trial that took
place at the above-captioned
case numbers on April
9, 2019. At CC#
2018-12609; the Defendant was
convicted of Display
Obscene/Sexual Materials at Count One
(1) (1 Pa.
C.S.A. §5903(a)(1)) and
Harassment at Count Two (2) (18
Pa. C.S.
§2709(a)(4)). At CC#
2018-14713, the Defendant was
convicted or
Terroristic Threats at Count
One (1) (18 Pa. C.S.A. §
2706(a)(1)) and
Intimidation of Witnesses at
Count Two (2) (18 Pa. C.S.A. §
4952(a)(1)).
Sentencing was deferred to
allow for the preparation of a
Presentence
Report ("PSR").
 On June 27, 2019, the
Defendant received a total aggregate
sentence
of two (2) to four (4) years
of imprisonment, followed by four
(4) years of
probation. The Defendant also
received 265 days of credit for tine
served.
The Defendant filed a
timely post -sentence motion to
reconsider his
sentence, which was heard and
denied on July 25, 2019. This timely
appeal
followed.

On August 28, 2019, this
court issued an Order directing thp
Defendant to file a Concise Statement
of Matters Complained of or) Appeal
("Concise Statement"). On December
6, 2019, after receiving two (2)1
extensions of time, the Defendant filed
a timely Concise Statement
at each
case number, raising several
issues for review.

Specifically, at CC# 2018-12609, the
Defendant sets forth the
following allegations of error:

a. The trial court erred
when it permitted the introduction of
Facebook postings when the evidence
is hearsay and the
Commonwealth failed to authenticate the
required under Pa.R.E. 901. The Facebook postings as
IP address, did not establish Commonwealth did not have an
who was the administrator of the
account, failed to subpoena any records from
it provide any other evidence Facebook, nor did
the postings were what they sufficient to support a finding that
claimed it to be, i.e., photographs

The Defendant was awaiting the
receipt of transcripts in this case.
2
 of the victim and Mr. Brooks, or
even whether he had taken or
posted the photographs and
comments.
b. The evidence was
insufficient in proving beyond a reasonable
doubt on displaying obscene/sexual
that there was not enough evidence material and harassmeht in
made by him. Facebook is
that the posts were in tact
inherently susceptible to falsification,
tampering or manipulation, and that the
allegedly authored by Mr. Brooks, Facebook entry,
could have easily been
generated by someone else. There
is potential for abuse,
especially given the lack of proper
evidence. Additionally, there was no authentication of the
saw Mr. Brooks create the testimony from anyone who
posts; there was no expert testimony
relating to any search of Mr. Brooks'
was not testimony regarding computer hard drive; there
Mr. Brooks exclusive access to the
Facebook account; nor was there
that linked the post to Mr. Brooks.any evidence from FaceboOk
c. The verdict was against the weight of the
based on insufficiently authenticated evidence where it tnias
evidence so weak and inconclusive to evidence rendering the!
made the postings to Facebook. establish that Mr. Brociks
d. The trial court abused
Its discretion when it imposed a
that was manifestly excessive sentence
and unreasonable where a
sentence of total confinement at
Count 1 was imposed without
consideration of Mr. Brooks rehabilitative
and characteristics. Mr. Brooks needs, or his nature
was found guilty of one M1 (an
offense gravity score of 3) and one
M3 (an offense gravity s re
of 1). His prior record score is
three (3). The trial court
sentenced Mr. Brooks to a term of total
to (2) two years at Count 1 confinement of one ( )
and one (1) year probation at Co nt
2. The trial court did not
adequately
required factors by not following the consider the statutorily
general principle that the
sentence imposed should call for
with the protection of the confinement that is consistent
public, the gravity of the offense as it
relates to the impact on the life
of the victim
community, and the rehabilitative needs of and on the
C.S.A. §9721. Additionally,
the defendant. 42 Pa.
although the Court indicated it
reviewed and considered the
presentence report and its
addendum, the record is silent on
whether it was aware of the
offense gravity scores, his prior record
ranges were and whether they were score, what the guideline
now 29 years old, has small considered. Mr. Brooks IS
children with whom he is involve0 in
their lives and financially supports, and has
considerable family
3
 support. He presented several
witnesses and also testified that
he has a changed attitude.
Instead, the Court ignored these
factors and instead focused on the
victim, even though she did not giveimpact of the crime on the
a victim impact statement,
and the seriousness of the
offense.

At CC# 2018-14713, the
Defendant raises the following cha 'lenges to
his verdict and sentence:

a. The verdict was
against the sufficiency of the evidence aS to
the conviction for intimidation of
Pa.C.S.A. §4952(a)(1) in that the
witnesses under 18
was that Mr. Brooks made his Commonwealth's evidence
statement during or after his
preliminary hearing on other charges.
Hence, the statement
was after the fact that the
victim had already informed and/or
reported any information to law
official or a judge. enforcement, a prosecuting

b. The trial Court abused its
sentencing discretion by sentencing
Mr. Brooks to consecutive
sentences at Counts 1 and 2, t his
sentence at CC2018-12609, making
2 to 4 years
an aggregate senten e of
incarceration. Mr. Brooks' offense gravity score
was 3 and his prior record is 3.
it reviewed and considered the Although the Court indicated
pre -sentence report and itS
addendum, there is nothing on the record
was aware of the offense whether the Co rt
gravity scores,
score, what the guideline ranges were the prior record
and whether the
ranges considered, and no
sentencing guidelines were file
Additionally, the trial Court did not
the statutorily required factors by adequately consider all of
not following the gener I
principle that while the sentence
imposed should call for
confinement that is consistent with the
public, the gravity of the offense as it protection of the
the life of the victim and on the relates to the impa on
community,
to consider the rehabilitative needs of it also is requ red
the defendant. 42 Pa.
C.S.A. §9721. Here, the sentence fails
to
rehabilitative needs of the defendant. Mr. consider the
years old, has two young children Brooks is now 2
with whom he is involve in
their lives and financially supports,
and
family support. Instead, it appears that has considerable
the Court focused

4
 exclusively on the impact on the life of the
no victim impact statement, and
victim, who Made
the seriousness of the
offenses at CC201812609.

The Defendant's contentions
on appeal lack merit. The court
respectfully requests that the
Defendant's convictions and senten4e be
upheld for the reasons that follow.

I. FACTUAL BACKGROUND

On August 8, 2018, twenty-seven
(27) year old Keshona Taylor was at
work when she received a call from a family member prompting hr to check
her Facebook account. (Non -Jury
Trial Transcript (ITT"), held 4/9/ 9, pp.
20, 22, 25-27, 29-30, 33, 35-36,
39). She discovered that three ( )
sexually explicit photos of her had been
publicly posted on the Def ndant's
Facebook account entitled "Splash God
B.K." (TT, pp. 20, 22, 25-26, 31, 33,
35). Ms. Taylor and the Defendant
previously had dated, but they went
through "contentious" breakup sometime around June of 2018. (TT, pp.
a

20-21, 25). However, they were still connected
on Facebook and "were
keeping in contact." (TT, pp. 44-45).

5
 During the course of their
relationship, Ms. Taylor regularly
communicated with the Defendant over the
phone and through text
messages. (TT, p. 22). In the two
(2) years leading up to their relationship,
Ms. Taylor also regularly
communicated with the Defendant on Falcebook
under his "Splash God B.K"
account. (TT, p. 22). Ms. Taylor knew that it
was
the Defendant who was
communicating through this "Splash God
iB.K."
account because the nature of
their discussions involved content that was
specific to their relationship,
referencing, for example, plans they had made,
things they had done together,
and memories they had shared. (TT, p.
23).
The "Splash God B.K."
account also contained pictures of the
Defendant.
(TT, p. 25). When Ms. Taylor
spoke with the Defendant on FacebOok,
she
addressed the Defendant by his
nickname, "B.K." (TT, p. 23). Ms. Taylor
knew that "B.K." was the
Defendant's nickname because the Deferjdant
referred to himself as "B.K.,"
responded to the name "B.K.", and Was called
"B.K." by his "friends, his
girlfriend, everybody." (TT, p. 24). "NobOdy
calls
him Michael." (TT, p. 24).

When Ms. Taylor accessed her
account on August 8, 2018, she saw
that the Defendant had posted
three (3) sexual and incredibly intimate
photographs of her on his "Splash God B.K"
account that same day (TT, pp.
25-27, 29-30, 32); (Commonwealth
Exhibits 1 through 3). Ms. Taylor
described Commonwealth's Exhibit 1 as a picture of her "bent over, shaking
6
 my butt." (TT, p. 26). Ms.
Taylor was able to recognize that it wad
her
because the picture was taken at
her mother's house before she had
passed
away. (TT, p. 27). The Defendant
also had captioned the photograph in
Commonwealth's Exhibit 1 in a way that
made Ms. Taylor's identity obvious.
(TT, p. 27). The Defendant
had written, "somebody please, wife
this fat,
nasty bitch so she can get
off my dick, please. Anyone - anyone.
Bitch so
miserable and want my bitch's life so
bad. This is nasty -ass Keshona. I don't
care. I'm a savage." (TT, p.
27). Ms. Taylor only performed
that sexual act
for the Defendant, but she was
unaware that he was recording her at the
time. (TT, p. 28).

Ms. Taylor described the second
photograph that was poste on the
"Splash God B.K." account that day
as a "picture of him opening up my

vagina." (TT, pp. 31, 33);
(Commonwealth Exhibit 2). Because of Il of the
time that they had spent together
and the sexual nature of their
relationship, Ms. Taylor recognized the
hand in the photograph as the
Defendant's hand, and she was certain that it
was her anatomy depicted in
the picture. (IT, pp. 31-32). The
Defendant captioned Commonwealth's
Exhibit 2 with "hairy -ass butt" and a
laughing emoji. (TT, p. 32). No one
else was ever present taking
photographs when Ms. Taylor and the
Defendant engaged in sex acts. (TT, p. 32).

7
 Ms. Taylor described the third
photograph that was posted y "Splash
God B.K." as a "picture of
me giving him oral sex." (TT, p. 34);

(Commonwealth's Exhibit 3). She
recognized herself, as well as t e
Defendant's penis, in that photograph
because she was the one who took
that picture. (TT, pp. 34, 43-44).
The Defendant had captioned the
photograph with, "bitch sucked
dick for $50," and he posted it on August
8,
2018, the same day as the other
pictures. (TT, p. 35). After viewing these
sexually charged and graphic
photos of herself on the Defendant'S
Facebook
page, Ms. Taylor turned the
pictures over to the police, and charges
were
subsequently filed against the
Defendant. (TT, p. 36).

On October 4, 2018, the
Defendant had his preliminary hear ng for the
charges relating to the August 8,
2018 incident. (TT, p. 37). After Ms.
Taylor testified, the Defendant
looked directly at Ms. Taylor and re
eatedly
threatened to kill her, while she was
still on the witness stand. (IT pp. 39,
67-70, 77, 79-80). Ms. Taylor heard
and saw the Defendant make he death
threats which were made after she
had testified, in the presence of the
magistrate judge and Officer Duncan.
(TT, pp. 39, 45-46, 68-69, 75, 77,
80). The Defendant had to be
restrained by a constable, who "grab ed him
and began taking him to the
back room." (TT, pp. 80-81).

8
 Officer Christopher Duncan, with the
Wilkinsburg Police DeIartment,
was in the courtroom at the time
and corroborated the fact that the
Defendant threatened Ms. Taylor's life
in open court. He testified that
"[f]ollowing the Judge's decision, while Ms.
Taylor was still up on the stand,
Mr. Brooks became irate and
he stated I'm going to kill this bitch, and
then
he stated if they let me out
of jail, I'm going to kill this bitch." (IT, pp.
72-
73, 77), Ms. Taylor testified that
these threats made her feel afraid. (TT, p.
68).

As a result of the Defendant's
volatile behavior, he was taken back to
the holding cell with the other
jailers, but Ms. Taylor and Officer EI:i.incan
heard the Defendant continue to
make repeated threats along the lway,
saying "I'm going to kill this bitch
when I get out of jail; I'm going Ito kill
you." (TT, pp. 68-69, 77-78). The
Defendant has two (2) friends t at had
passed away and Ms. Taylor recalled
that he kept "swearing on th it names"
that he was going to kill her. (TT, p.
69).

9
 IL DISCUSSION

A. The Facebook postings were
sufficiently authenticated
through circumstantial evidence and, therefore,
admitted. properly

The Defendant contends that this
court erred in overruling his
objection relating to the
authentication of the Facebook photographs. He
argues that the Commonwealth failed to
properly authenticate this evidence
because it "did not have an IP address,
and did not establish who iwas the
administrator of the account, [it] failed to
subpoena any records from
Facebook, nor did it provide any other
evidence sufficient to support a
finding that the postings were what they
claimed it to be . ." (Cbncise
.

Statement, filed at CC# 2018-12609, p. 2).

It is well -established that the "admission of evidence is corn itted to
the sound discretion of the trial
court, and a trial court's ruling reg rding the
admission of evidence will not be disturbed on
appeal unless that ruling
reflects manifest unreasonableness, or
partiality, prejudice, bias, or ill -will,
or such lack of support to be clearly
erroneous." Commonwealth v. Moser,
999 A.2d 602, 605 (Pa. Super. 2010)
(citation omitted).

10
 Our appellate court in Commonwealth v.
Danzev, 210 A.3d 333, 337
(Pa. Super. 2019) recently
reiterated the authentication requirerOents
pursuant to Pa.R.E. 901:

[A]uthentication is required prior to admission of evidence.
The
proponent of the evidence must introduce sufficient
that the matter is what it purports to be. eviden4e
Pa.R.E. 901(a).
Testimony of a witness with personal knowledge
that a mater is
what it is claimed to be can be sufficient.
Pa.R.E. 901(b)(1)1
Evidence that cannot be authenticated by a
person, pursuant to subsection (b)(1), may knowledgeable
be authenticatel by
other parts of subsection (b), including
circumstantial evidence
pursuant to subsection (b)(4).
901(b)(4). Under ROle
901(b)(4), evidence may be authenticated by "Distinctive
Characteristics and the Like. The appearance, contents,
substance, internal patterns, or other distinctive
of the item, taken together with all the characteristics
circumstances."
(emphasis in original).

With respect to the authentication of
electronic communications,
courts have explained that "authentication of
electronic communications, like
documents, requires more than mere confirmation
that the numbOr or
address belonged to a particular person.
Circumstantial evidence, ivhich
tends to corroborate the identity of the
sender, is required." Commonwealth
v. Koch, 39 A.3d 996, 1005 (Pa.
Super. 2011).

ii
 In Commonwealth v. Mange', 181 A.3d
1154 (Pa. Super. 01.8), the
court considered the authentication of Facebook
communications and offered
the following guidance:

Initially, authentication [of] social media evidence is do 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. Additionally, the
proponent of s cial
media evidence must present direct or
that tends to corroborate the identity ofcircumstantial evidence
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.

Turning to our facts, the testimony of Keshona
Taylor was sufficient to
establish that the Defendant owned the
Facebook account "Splastl God B.K."
Ms. Taylor testified that: (1) she had communicated with the Defendant
through the "Splash God B.K." account for two years
leading up to their
relationship; (2) "everybody" called the Defendant "B.K."
and no One called
him Michael; and (3) the "Splash God B.K."
account contained piCtures of
the Defendant. (TT, pp. 22-24). Ms. Taylor also was
confident that the
Defendant owned this account given the content of their
communications
and the fact that they discussed things that only
the two of them had
knowledge of. (TT, pp. 22-24).

12
 Considering the overall context surrounding
the photographs and the
circumstances that existed at the time of the
posting, Ms. Taylor'S testimony
was also sufficient to establish
the Defendant's identity as the author of the
sexually graphic postings. Ms. Taylor
testified that she and the Defendant
had recently dated and that they
had a "contentious" breakup barely two
(2)
months prior to the postings.
(TT, p. 25). Ms. Taylor identified each of
their
private parts in the pictures and
confirmed that the majority2 of drie
photographs were taken on the Defendant's
cell phone, during a dime that
no one else was present. (TT,
pp. 25, 32, 34).

Furthermore, the photographs were all posted
on the same day, and
the demeaning captions accompanying
each picture were consistent with the
vitriol of an ex -boyfriend. (TT, pp. 25,
27, 32, 35). Indeed, one of the
captions even accused Ms. Taylor of being
jealous of the Defendant's new
girlfriend. (TT, p. 27) ("[S]omebody please
wife this fat, nasty bitcti so she
can get off my dick, please.
Anyone - anyone. Bitch so miserable Ond want
my bitch's life so bad. This is nasty -ass
Keshona. I don't care. I'm a
savage.") (emphasis added). The author of the
posts referred to himself in
the first person, and just like in Danzev,
the three (3) postings all

2 Ms. Taylor testified
that the photograph in Commonwealth's Exhi it 3 was
taken on her cell phone and that the
Defendant had access to the icture
because he took her cell phone. (17, p. 47).

13
"expressed consistent themes in a consistently vulgar voice," an the
postings depicted sexual acts that Ms. Taylor only
engaged in wit the
Defendant. Danzey, supra, at 340.

Accordingly, "the contextual clues in the posts, taken
together with the
testimony provided by" Ms. Taylor, supported the
conclusion that the
Defendant was the author of the postings. To the
extent that the Defendant
challenges the admission of these photographs on
hearsay grounds, that
claim also lacks merit for the same reasons
outlined in Danzey. To be sure,
"the posts were not introduced for purpose of proving the
truth oft the matter
asserted therein" - that Ms. Taylor was, in fact, a "nasty bitch" with a
"hairy -ass butt" who "sucked dick for $50." (TT pp. 27,
32, 35). banzev,
supra, at 341. "Rather, introduction of the posts
established [the
Defendant's] state of mind, and related directly to consideration of
the
charged offenses" of Displaying Obscene Material and
Harassments Id. at
341.

14
 B. The Commonwealth's evidence was more than Sufficient
to support the Defendant's convictions for Displaying
Obscene/Sexual Material, Harassment, and Intimidation
of Witnesses.

The standard of review for challenges to the
sufficiency of evidence is
well -settled. Our appellate court has explained
the standard as fillows:

As a general matter, our standard of review of
sufficiency claims
requires that we evaluate the record "in the light most
favorable
to the verdict winner giving the prosecution the
benefit of all
reasonable inferences to be drawn from the evidence."
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
"Evidence will be deemed sufficient to support the verdict
when
it establishes each material element of the crime charged and
the commission thereof by the accused, beyond a
reasonable
doubt." Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.
Super. 2005). Nevertheless, "the
Commonwealth need not
establish guilt to a mathematical certainty." Id.; see also
Commonwealth v. Aguado, 760 A.2d 1181, 1185 (Pa. Super
2000) ("[T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant's innocence"). Any doubt about the defendant's guilt
is to be resolved by the fact finder
unless the evidence is so
weak and inconclusive that, as a matter of law, no
probability of
fact can be drawn from the combined circumstances.
See
Commonwealth v. DiStefano, 782 A.2d 574, 582 (Pa. Super.
2001).
The Commonwealth may sustain its burden by
means of wholly
circumstantial evidence. See Brewer, 876 A.2d at 1032.
Accordingly, "[t}he fact that the evidence establishing a
defendant's participation in a crime is circumstantial does not
preclude a conviction where the evidence coupled with the
reasonable inferences drawn therefrom overcomes the
presumption of innocence." Id. (quoting Commonwealth v.
Murphy, 795 A.2d 1025, 1038-39 (Pa. Super. 2002)).
Significantly, we may not substitute our judgment for that of the
fact finder; thus, so long as the evidence adduced,
accepted
the light most favorable to the Commonwealth, demonstrates
the respective elements of a defendant's crimes beyond a

15
 reasonable doubt, the appellant's convictions will be upheld,. See
Brewer, 876 A.2d at 1032. Commonwealth v. Rahman, 75 A.3d
497, 500-01 (Pa. Super. 2013) (quoting Commonwealth v.
Pettyjohn, 64 A.3d 1072 (Pa. Super. 2013)) (citations omitted).

It is well -established that "the trier of fact, who determinesicredibility
of witnesses and the weight to give the evidence produced, is
fret to believe
all, part, or none of the evidence."
Commonwealth v. Brown, 701 A.2d 252,
254 (Pa. Super. 1997).

Viewing the evidence in the light most favorable to the
Commonwealth
as verdict -winner, and taking into account all
reasonable inferences that
may be drawn it is clear that, since the Defendant's as
the authonof the Facebook posts was established, the
evidence was more
than sufficient to sustain the Defendant's convictions for
Displaying
Obscene/Sexual Material, Harassment and Intimidation of Witnesses.

Pursuant to 18 Pa.C.S.A § 5903(a)(1): No person, knowing tlhe

obscene character of the materials or performances involved shall:

(1) display or cause or permit the display of any explicit sexual
materials as defined in subsection (c) in or on any window,
showcase, newsstand, display rack, billboard, display board,
viewing screen, motion picture screen, marquee or similar place
in such manner that the display is visible from any public street,

16
 highway, sidewalk, transportation facility or other public
thoroughfare, or in any business or commercial establishm nt
where minors, as a part of the general public or otherwise, are
or will probably be exposed to view all or any part of such
materials.

The Commonwealth presented the testimony of the
victim, Ms. Taylor,
who credibly and convincingly established beyond a
reasonable doubt that
the Defendant publicly posted explicit, sexually graphic
photographs of her
on Facebook, a public forum. Thus, the
evidence was more than ufficient to
support the Defendant's conviction under § 5903(a)(1).

Pursuant to 18 Pa. C.S.A § 2709(a)(4), "a person commits the crime of
harassment when, with intent to harass, annoy or alarm another, the
person
(4) communicates to or about such other person any lewd,
lascivious,
threatening or obscene words, language, drawings or caricatures.1' The

Facebook pictures and accompanying captions that the Defendant posted on

his account were lewd, lascivious, and obscene
communications that were
sent both to and about Ms. Taylor, and were posted with the obvigous intent

of harassing, annoying, and alarming her. Thus, the evidence was sufficient

to support the Defendant's conviction under §2709(a)(4).

17
 Finally, the Intimidation of Witnesses statute
provides that:

A person commits an offense if, with
the intent to or with the
knowledge that his conduct will obstruct, impede, impair,
prevent or interfere with the administration of
he intimidates or attempts to
criminal justice,
intimidate any witness or victim to:
(1) Refrain from informing or reporting to
any law enforcement
officer, prosecuting official or judge concerning
any
document or thing relating to the commission of a information,
crime.
18 Pa.C.S.A.§ 4952(a)(1).

As noted, the Defendant repeatedly
threatened to kill Ms. Taylor after
she testified at his preliminary
hearing, while she was still on the Witness
stand, and Ms. Taylor felt afraid after her life
was threatened. The Defendant
made these death threats in an open
courtroom, after his charges were held
for court, with his case would to be pursued in
Common Pleas Court.

The Defendant, however, argues that the
evidence was insufficient to
support this conviction because the threats came
after Ms. Taylor }`had
already informed and/or reported any information to
law enforcerrient, a

prosecuting official or a judge." (Concise Statement, pp.
2-3). ThiS argument
is wholly without merit and
overlooks the fact that Ms. Taylor's to timony
would still be required to secure convictions
against the Defendan in
Common Pleas Court. The Defendant's repeated death
threats cle rly were
made with the intent to dissuade Ms. Taylor from
providing any fu it her
18
 information to, and cooperation with, the Commonwealth in prep=
ration for
and at the time of trial. The court notes that
the death threats a so evinced
the Defendant's consciousness of guilt for his
conduct in publicly
disseminating the sexually graphic photographs of Ms. Taylor.

The Commonwealth need not prove the
Defendant's guilt t a
mathematical certainty, and it may prove its case by means ofw
oily
circumstantial evidence. Brewer, supra, at 1032. This is not a case where
the evidence is so weak and inconclusive that, as a
matter of law,, no
probability of fact can be drawn from the combined
circumstances. See
Commonwealth v. Watley, 81 A.3d 108, 115 (Pa Super. 2013).

Here, properly viewing the evidence In the light most
favorable to the
Commonwealth, the circumstantial evidence was sufficient to proVp that: (1)

the Defendant was responsible for publicly poSting
obscene and sexual
pictures of the victim; (2) the Defendant's postings were intended ito
alarm,
annoy, and harass the victim; and (3) the Defendant intended
to discourage
the victim from securing convictions against him
when he threatered to kill
her several times in open court after she testified
against him at his
preliminary hearing.

19
 C. The Defendant's challenge to the weight of the evidence
should be deemed waived on appeal because it *as not
raised at the time of sentencing or in a post -sentence
motion.

For the first time on appeal, the Defendant seeks to
challenge the
weight of the evidence relating to his convictions for Displaying

Obscene/Sexual Material and Harassment. As explained by our appellate

court in Commonwealth v. Thompson, 93 A.3d 478, 490 (Pa.
Super. 2014):

[A] weight of the evidence claim must be preserved either in a
post -sentence motion, by a written motion before sentencing, or
orally prior to sentencing. Pa.R.Crim.P. 607; Commonwealt v.
Priest, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure to pr perly
preserve the claim will result in waiver, even if the trial coat
addresses the issue in its opinion. Commonwealth v. Sherwood,
982 A.2d 483, 494 (Pa.2009).

The Defendant did not raise a weight claim at any time before or
during sentencing, nor did he raise the claim in his post -sentence motion.

Rather, the Defendant's post -sentence motion challenged the imposition of a

consecutive sentencing scheme and sought reconsideration of the Icourt's

decision to not make a Boot Camp recommendation. (Motion to Reconsider,

filed 7/1/19, ¶¶ 2-4).

20
 At the hearing held on the post -sentence motion, the
defense
argument focused solely on the sentencing issues and
reiterated the
requests made in the written motion. (Post-Sentence
Motion Hearing
("PSM"), held 7/25/19, pp. 3-6) ("The defendant's
position in thi$ case is it
only asks for either - you to reconsider the consecutive nature or the
sentences and run them concurrent. . I would [also] ask you tO reconsider
your sentence and your denial of the Boot Camp in
particular . . .").
Accordingly, the Defendant failed to preserve his challenge to
the weight of
the evidence because it was not raised prior to the
filing of his Concise
Statement. As such, this court respectfully requests that this
issue be
deemed waived on appeal.

D. The Defendant's sentencing scheme was not manifestly
unreasonable under the circumstances and the court
considered all relevant statutory factors in imposing
sentence.

Failure to Raise Substantial Question

It is well -settled that "[s]entencing is a matter vested in the sound
discretion of the sentencing judge and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion."
Commonwealth v. biouzon,
828 A.2d 1126, 1128 (Pa. Super. 2003). "To constitute an
abuse Of
discretion, the sentence imposed must either exceed the statutory limits or

21
 be manifestly excessive." Commonwealth v. Gaddis, 639 A.2d
462, 469 (Pa.
Super. 1994) (citations omitted).

To that end, "an abuse of discretion may not be found meriely
because
an appellate court might have reached a different
conclusion, butj requires a
result of manifest unreasonableness, or partiality, prejudice,
bias4 or
or such lack of support so as to be clearly erroneous."
Commonwealth v.
Greer, 951 A.2d 346, 355 (Pa. 2008). "In determining whether al sentence
is manifestly excessive, the appellate court must give
great weight to the
sentencing court's discretion." Mouton, supra, at 1128. This deferential

standard of review acknowledges that the sentencing court is "in the
best
position to view the defendant's character, displays of remorse, cifiance,

indifference, and the overall effect and nature of the crime." CoMmonwealth

v. Allen, 24 A.3d 1058, 1065 (Pa. Super. 2011)
(internal citations omitted).

The sentencing claims raised in the Defendant's Concise Statements

seek to challenge the amount of weight afforded to certain mitigating

factors, as well as the imposition of a consecutive sentencing scheme.

(Concise Statement, CC#2018-12609, p. 3); (Concise Statement, CC#

2018-14713, p. 3). As such, the Defendant's sentencing arguments

challenge the discretionary aspects of sentencing. The court notes that

22
 "[t]he right to appeal a discretionary aspect of sentence is not absolute."
Commonwealth v. Martin, 727 A.2d 1136, 1143 (Pa. Super. 199

A defendant "challenging the
discretionary aspects of his s ntence
must invoke [appellate] jurisdiction by
satisfying a four-part test.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
In
conducting the four-part test, the appellate court analyzes

(1) whether appellant has filed a timely notice of appeal, see Pa.
R. A. P. 902 and 903; (2) whether
the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa. R. Crim. P. [708]; (3) whether appellant's brief
has a fatal defect, Pa. R. A. P. 2119(f); and (4)
whether there is
a substantial question that the sentence
appealed from is not
appropriate under the Sentencing Code, 42 Pa. C. S. A. §
9781(b).
Id. at 170. "The determination of whether there is a substantial (question is
made on a case -by -case basis, and [the appellate court] will grant
the
appeal only when the appellant advances a colorable argument thit the
sentencing judge's actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms

which underlie the sentencing process." Comm nwealth v.
Ha ne 125
A.3d 800, 807 (Pa. Super. 2015).

23
 Our courts have "held on
numerous occasions that a claim f
inadequate consideration of [mitigating]
factors does not raise a substantial
question for [] review." Haynes,
supra, at 807; Commonwealth V.
Buterbaugh, 91 A.3d 1247, 1266 (Pa.
Super. 2014). Furthermore, "a
sentencing court generally has
discretion to impose multiple sentences
concurrently or consecutively, and
a challenge to the exercise of that

discretion does not ordinarily raise
a substantial question."
Commonwealth
v. Raven, 97 A.3d 1244,
1253 (Pa. Super. 2014). Moreover,
"bald claims of
excessiveness due to the consecutive nature
of sentences imposed will not
raise a substantial question."
Commonwealth v. Dodge, 77 A.3d 1263, 1270
(Pa. Super. 2013). Rather,
"[Ole imposition of consecutive, rather than
concurrent, sentences may raise a
substantial question in only the most
extreme circumstances, such as
where the aggregate sentence is unduly
harsh, considering the nature of
the crimes and the length of impr
sonment."
Moury, supra, at 171-72.

Respectfully, the reviewing court should find
that the Defendant has
failed to raise a substantial question
for review of his sentence. The
Defendant received a standard range
sentence at each case. These,
sentences were consistent with the
sentencing provisions of the Sentencing
Code, and they did not conflict
with the fundamental norms that underlie the
sentencing process. However, should the
Superior Court conclude hat there
24
 exists substantial question as to the
a
appropriateness of the De endant's
sentencing scheme, the sentences
were justified by the totality the
circumstances in this case.

Reasonableness of the Sentences Imposed

With respect to CC# 2018-12609,
the Defendant's sentencing
guidelines at Count One (1) -
Displaying Obscene/Sexual Materials, called
for a sentence of 6-16 months
of imprisonment in the standard range. The
Defendant was sentenced to a period of
one (1) to two (2) years 4f
imprisonment, followed by a two (2) year term of probation to commence
upon his release from imprisonment.
(Sentencing Transcript ("ST''), held
6/27/19, p. 34). At Count Two (2) - Harassment, the guidelines called for a
sentence of RS -6 months. The Defendant
was sentenced to a one (1) year
period of probation, to be served
consecutively to the term of probation
imposed at Count One (1). (ST, p. 34).
Thus, the total sentence at this case
number was one (1) to two (2) years of
imprisonment, to be follovOd by
three (3) years of probation.

With respect to CC# 2018-14713, the
Defendant's guidelines at Count
One (1) - Terroristic Threats, called for
a sentence of 6-16 months of

imprisonment in the standard range. The Defendant was
sentence to a
25
 period of one (1) to two (2) years imprisonment, with a
consecutive two (2)
year period of probation to follow. (ST, p. 27). The Defendant's
uidelines
for his conviction at Count Two (2) - Intimidation of Witnesses, .balled for a

sentence of 12 months of imprisonment in the standard
range. The
Defendant was sentenced to a period of two (2) years of probation, which
was ordered to run consecutive to the
probation imposed at Count One (1).
(ST, p. 28). The court further ordered that the terms of
incarceration
imposed at each case run consecutively to one another. (ST,
p. 34). The
probationary terms imposed at CC# 2018-14713 were ordered tq run

concurrently with the probation imposed at CC# 2018-12609.

Accordingly, the Defendant's total aggregate sentence was two (2) to

four (4) years of imprisonment, followed by four (4) years of
probation.
Despite the Defendant's sentences being squarely within the
standard range
of the guidelines at each case number, he contends that the sentences were

manifestly excessive and unreasonable because they were Imposed without

consideration of Mr. Brooks [sic] rehabilitative needs, or his nature and

characteristics." (Concise Statement, p. 3).

26
 The Defendant also maintains that this
court failed to consider the
statutorily required factors under 42 Pa.C.S.A. § 9721, ignored cOrtain
mitigating factors, and focused solely on the seriousness of
the offense and
the impact on the victim. (Concise
Statement, p. 3). Notwithstanding the
fact that the Defendant actually received a
standard range sentence at each
case, he further argues that it was unclear whether this court
"was aware of
the offense gravity scores, his prior record score,
what the guideline ranges
were and whether they were considered,"
because this court did dot
explicitly recite the fact that it had reviewed the
guidelines prior tjo
sentencing. (Concise Statement, p. 3). The
Defendant's claims lac* merit.

Initially, the court notes that it had the benefit of a Pre -Sentence
Report to aid in its sentencing determination.
Pursuant to its consstent
practice, the court carefully reviewed this report three (3)
times iri
preparation for sentencing - once when it first received the repolt, then on
the day before sentencing, and then again on
the morning of the Sentencing.
(ST, p. 5). Our appellate court recently has
reiterated the presumption
afforded by the existence of pre -sentence reports:

Where pre -sentence reports exist, we shall continue to
presume that the sentencing judge was aware of rele ant
information regarding the defendant's character and
weighed those considerations along with mitigating
statutory factors. A presentence report constitutes the rec rd
and speaks for itself. In order to dispel any lingering
doubt s to
27
 our intention of engaging in an effort of legal purification,
e
state clearly that sentencers are under no compulsio to
employ checklists or any extended or systematic
definitions of their punishment procedure. Having be n fully
informed by the pre-sentence report, the sentencing court'
discretion should not be disturbed.
Commonwealth v. Conte, 198 A.3d 1169, 1177 (Pa. Super. 2018 ) (quoting

Commonwealth v. Devers, 519 Pa. 88, 546 Pad 12, 18 (1988)) (emphasis

added).

Turning to the Defendant's assertion that the record is silent as to this

court's awareness of the relevant guideline information, this court
represents
that it was fully aware of the applicable guidelines in this case, aS it is at
every sentencing. A "sentencing court is not required to recite or the record

the guideline sentencing range, as long as the record demonstrates the

court's recognition of the applicable sentencing range and the dOiation of

sentence from that range." Commonwealth v. Perry, 32 A.3d 232, n. 7 (Pa.

2011). As noted, the court did not deviate from the guidelines, and the

record demonstrates this court's recognition of the applicable sentencing

range by way of the fact that it imposed standard range sentences at each

case.

28
 Moreover, notwithstanding the Defendant's assertions to tl
a contrary,
this court spent a significant amount of time weighing all of the relevant
statutory factors in determining the appropriate
sentence in this Case. 42 Pa.
C.S.A. §9721(b). In addition to giving
meaningful consideration to the
Defendant's background, history, and need for
rehabilitation, the (court also
took into account the arguments of
counsel, the victim impact statement,
testimony from the Defendant's family, and the Defendant's
allocution to the
court. (ST, pp. 6-23). All of these factors were further
weighed against the
seriousness of the offense and the need to protect the public.

Indeed, the Defendant's conduct which gave rise to the chages at

CC# 2018-12609 is a reprehensible crime, a breach
of the utmost trust that
one places in an intimate partner, and a revolting display of the contempt in
which the Defendant held Ms. Taylor. For Ms. Taylor to be at
work when she
found out -- from a relative no less -- that incredibly graphic phot $) s of her

had been posted online for the world to see was
traumatic in and Of itself.
For Ms. Taylor to have to identify, in
open court, pictures of her vagina and
her performing sexual acts only added insult to
injury. The court will not
rehash its sentencing justification as it provided a
lengthy rationale at the
time of sentencing and at the post-sentence motion
hearing. (ST, pp. 23-
27); (PSM, pp. 5-6). The court will note, however, that it found the

29
 Defendant's "show of remorse" to be completely
disingenuous and self-
serving.

The amount of humiliation and trauma that
the Defendant fias caused
Ms. Taylor was best explained by Ms. Taylor herself
in her Victim Impact
Statement,3 which was relayed through an
investigator:

[Ms. Taylor] noted that the defendant's actions
have had a
devastating affect on her life to date. Initially, .she was
forced to
quit her job "out of embarrassment" over the pictures which
were viewed by many of her co-workers.
Additionally, her 10 -
year old son viewed the pictures which forced them into
counseling for a short time. She and her boyfriend "broke-4p"
over the photos/videos and she was finally forced into
relocating
due to the embarrassment and judgement [sic] of those
her and her son. The move cost her a total of $750 whicharound
she
was forced to "come up with" to maintain her "sanity and
piece
[sic] of mind."

The Defendant's criminal conduct surrounding the
Facebook posts was
serious and concerning standing alone, but then the Defendant
went even
further, threatening Ms. Taylor's life after she had testified at
his preliminary
hearing, while she was still on the witness stand. The Defendant d id not
just
utter a single stray threat, he brazenly and repeatedly told Ms. Taylor that

he was going to kill her, in open court, in the
presence of law enfckcement,
with full knowledge (if not intent) that the death threats
could preVent her

3The court has attached the Victim Impact
Statement to this Opinon as
"Court Exhibit 1."

30
 from providing further testimony against him and
from pursuing Cconvictions
against him. The Defendant was so "irate" while he
was repeately
threatening to kill Ms. Taylor that he had to be restrained by
a constable and
escorted from the room. (TT, pp. 77, 80-81). And yet, even
despite law
enforcement intervention, he continued making death
threats after being
placed back in the holding cell with
the other jailers. (TT, p. 77). 'The
Defendant's inability to restrain himself, even in a court of law,
siowcases
his anger issues, which further highlights the
dangers that he po$es to Ms.
Taylor and the community as a whole.

The Defendant argues that a lesser sentence was warranted]
because
he is "now 29 years old, has small children with
whom he is involi,/ed in their
lives and financially supports, and has considerable
family support." (Concise
Statement, CC# 2018-147131 p. 3). While the court did weigh thpse factors

in its sentencing calculus, this court "was only obligated to considfr

mitigating circumstances, not to accept or appreciate them." Commonwealth

v. Fullin, 892 A.2d 843, 850 (Pa. Super. 2006). Simply because
rritigating
factors were at play did not mean that this court was required to assign

them more weight at the expense of other, more serious concerns that far

outweighed any mitigating evidence.

31
 Against this backdrop, the Defendant's sentencing
scheme 'was not
manifestly excessive or unreasonable. The court considered all
Of the
relevant statutory factors in imposing sentence, and it
did not consider one
factor to the exclusion of others. Significantly, a defendant is not entitled to
a concurrent sentencing scheme, and the Defendant in this case
k:ettainly
was not deserving of a "volume discount" for committing serious !crimes that
were separate, distinct, and individually troubling. See
Commonwealth v.
Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995) ("The
general rule in
Pennsylvania is that in imposing a sentence the court has discretiPn to
determine whether to make it concurrent with or consecutive to Other

sentences then being imposed or other sentences previously
imposed.");
Commonwealth v. Anderson, 650 A.2d 20, 22 (Pa. 1994) (raising la concern

that defendants not be given "volume discounts" for multiple criminal acts

that arose out of one larger criminal transaction).

Ultimately, the Defendant received standard range sentences at each

case, and courts have recognized that "where a sentence is within the

standard range of the guidelines, Pennsylvania law views the sentence as

appropriate under the Sentencing Code." Commonwealth v. Lam9nda, 52

A.3d 365, 372 (Pa. Super. 2012); See also Commonwealth v. Cru-Centeno,

668 A.2d 536 (Pa. Super. 1995), appeal denied, 676 A.2d 1195 (Oa. 1996)

(stating combination of PSI and standard range sentence, absent ore,
32
cannot be considered excessive or unreasonable). Accordingly, for all of

these reasons, this court respectfully requests that its sentencing (scheme be

upheld.

III. CONCLUSION

The Defendant's allegations of error on appeal are without merit.

Based on the foregoing, the Facebook pictures were properly authenticated.

The evidence viewed in the light most favorable to the Commonwealth was

sufficient to support the Defendant's convictions for Displaying Obscene

Materials, Harassment, and Intimidation of Witnesses. The Defendant's

challenge to the weight of the evidence was not properly preserved for

appellate review, and the Defendant's aggregate sentence was within the

standard range of the guidelines and was reasonable under the

circumstances.

BY THE COURT:

DATE

33
BROOKS, Michael James

Victim Impact Statement:

After several days of attempting to contact the
victim in this case, Oshona
Taylor phoned the investigator and was
interviewed for the report She nOted that the
defendant's actions have had a devastating affect on
her life to date. Initially, she was
forced to quit her job "out of embarrassment"
over the pictures which were viewed by
many of her co-workers. Additionally, her
10 -year -old son viewed the pictures which
forced them into counseling for a
short time. She and her boyfriend "broke -up" over the
photos/videos and she was finally forced into
relocating due to the embarr ssment and
judgement of those around her and her son. The
move cost her a total of 750 which
she was forced to "come up with" to
maintain her "sanity and piece of min "

When asked for a sentencing
recommendation, Ms. Taylor believes that the
defendant should be sentenced to a 2-3 year
sentence and required to attend and
complete anger management classes/therapy.
"He needs anger managerOent therapy
because he does this kind of thing all the time."
"He is a very angry man."

eauer
EA/ifigir