Com. v. Wile, T.

J-S05008-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THERESA WILE :
:
Appellant : No. 636 EDA 2020

Appeal from the Judgment of Sentence Entered January 21, 2020
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0008044-2018

BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J.

MEMORANDUM BY BOWES, J.: Filed: April 22, 2021

Theresa Wile appeals from the judgment of sentence of three months of

probation, plus the costs of prosecution, imposed after she was convicted of

the summary offense of harassment. We affirm.

Succinctly, Appellant’s convictions are based upon her sending scores of

hostile, expletive-ridden text messages to the victim, with whom she has two

children, in between police welfare checks she initiated on the mornings of

October 11 and 12, 2018. Appellant was charged with both misdemeanor and

summary harassment, but the Commonwealth ultimately proceeded on the

summary charge. At the subsequent non-jury trial, the Commonwealth

entered the contents of these text messages into evidence through printouts

of screenshots that the victim had provided to police. The trial court convicted
J-S05008-21

Appellant of summary harassment and ultimately sentenced Appellant as

detailed above.

Appellant timely appealed, and presents the following issues for this

Court’s review:

1. Whether the admission of photographs of text messages
was an abuse of discretion and a misapplication of the best
evidence rule as codified by Pennsylvania Rules of Evidence 1002-
1004?

2. Whether the admission of photographs of text messages
was an abuse of discretion and a misapplication of the rule of
completeness as codified by Pennsylvania Rule of Evidence 106?

3. Whether the evidence presented at trial was insufficient to
prove beyond a reasonable doubt that [Appellant] had the
requisite intent for harassment, the “intent to harass, annoy or
alarm?”

4. Whether the court erred in imposing costs of prosecution
and supervision fees on [Appellant], an indigent person, absent
consideration of her ability to pay?

Appellant’s brief at 3 (footnote, unnecessary capitalization, and suggested

answers omitted).

The following informs our review of Appellant’s claims of error. As to

Appellant’s sufficiency challenge, we bear in mind:

Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
[T]he facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded

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J-S05008-21

to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.

Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017)

(citations and quotation marks omitted).

Concerning Appellant’s challenge to the imposition of costs of

prosecution without first determining her ability to pay them, the issue

“implicates the interpretation of the Rules of Criminal Procedure, which

presents a question of law. Therefore, our standard of review is de novo, and

our scope of review is plenary.” Commonwealth v. Lopez, ___ A.3d ___,

2021 WL 1096376 at *1 (Pa.Super. March 23, 2021) (en banc).

After a thorough review of the certified record, the parties’ briefs and

the pertinent law, we discern no error of law or abuse of discretion on the part

of the trial court as to the issues raised by Appellant, and we affirm the

judgment of sentence on the basis of the cogent and well-reasoned opinion

that Honorable Steven T. O’Neill entered on June 4, 2020. 1

Specifically, Judge O’Neill observed that neither the best evidence rule

nor the rule of completeness rendered inadmissible of the screenshots of the

____________________________________________

1 The certified record does not include the printed copies of the screenshots
of Appellant’s text messages admitted into evidence at trial. However, Officer
James McVeigh read sufficient portions of them on the witness stand to enable
our review.

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J-S05008-21

text messages Appellant sent to the victim, where Appellant did not contend

the contents were altered or that portions of the exchange were omitted. See

Trial Court Opinion, 6/4/20, at 3-5. The trial court likewise aptly detailed why

the law and the evidence, including reasonable inferences therefrom,

supported his finding that Appellant sent her voluminous, increasingly-hostile,

and threatening profanity-laden messages with the intent to harass her victim

rather than for some legitimate purpose. See id. at 6-7 (citing, inter alia,

Commonwealth v. Cox, 72 A.3d 719, 722 (Pa.Super. 2013) (holding fact-

finder could properly infer from the totality of the circumstances that a

Facebook post was made with the intent to harass). See also N.T. Trial,

11/4/19, at 52-63 (reading contents of text messages which patently serve

no legitimate purpose). Finally, Judge O’Neill correctly explained that

Appellant was not entitled to a hearing on her ability to pay before being

sentenced to pay costs, as Pa.R.Crim.P. 706 requires a hearing only before

incarcerating a defendant for failure to pay. Id. at 7-8 (citing, inter alia,

Commonwealth v. Childs, 63 A.3d 323, 325 (Pa.Super. 2013)). See also

Lopez, supra at *5 (reaffirming “Childs’ holding that a that a defendant is

not entitled to an ability-to-pay hearing before a court imposes court costs at

sentencing”). As to all of the foregoing points, we adopt Judge O’Neill’s

reasoning as our own.

Judgment of sentence affirmed.

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J-S05008-21

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date:4/22/21

-5-
 Received 10/5/2020 11:15:16

Filed 10/5/2020 11:15:00 PM Superior Court Eastern District
636 EDA 2020

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY
PENNSYLVANIA
CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA : NO. 8044-18
636 EDA 2020
V.

THERESA WILE

OPINION • C:) •
O'NEILL, J. June
20k xM-rCD
—4- 7'

•'• = ••cam rt,
The Defendant, Theresa Wile, appeals from the judgement of sentfFnce

entered on January 21, 2020. For the reasons set forth below, the judgn- tof: ǹ

sentence should be affirmed.

I. Facts and Procedural History

Early on the morning of October 11, 2018, the Defendant sent police to

the victim's home for a welfare check on the couple's two children. N.T. Nov. 4,

2019 at 21. That afternoon, the victim texted the Defendant about a dance

their daughter was to attend that evening. Id. The victim testified that the

messages began to get abusive, so he told the Defendant he would take their

daughter to the dance. Id. On the morning of October 12, 2018, the victim

was awoken by the police knocking on his door to conduct another welfare

check. Id. At that point, the victim saw nearly 80 text messages from the

Defendant that had been sent between 8:08 p.m. and 7:53 a.m.; the victim did

not respond to any of the messages. Id. at 28. The Defendant testified that it

was a "continuous string" of messages. Id. at 103. The Defendant had

previously been advised not to contact the victim. Id. at 46, 100. The majority

of the messages contained obscene language. For example, she texted, "Fuck

1
you. I said don't do that, you fucking pig. Fuck you. Fuck you fucking

treacherous fucking cocksucking pussy whipped cunt bag fucker. IRS mother

fucking one bitch. Yeah, Irealize what's going on, dickhead. Nope, dumbass.

Try again." Id. at 56. The victim went to the Lansdale police department and

showed police the texts. Id. at 22. Officer McVeigh photographed some of the

text with a patrol phone and ultimately asked the victim to sereenshot the

messages and email them to him. Id. at 52.

Following a trial by bench', the Defendant was convicted of a summary

charge of harassment. 2 On January 21, 2020 she was sentenced to a three

month term of probation and ordered to pay the costs of prosecution. The

Defendant filed a post-sentence motion, which this Court denied on February

6, 2020. This appeal followed. The Defendant was directed, pursuant to Pa.

R.A. P. 1925 (b) to file a concise statement of errors; she has since complied

with that directive.

II. Issues

The Defendant raises the following issues in her concise statement:

1. Appellant challenges the denial of the Motion in Limine. See,
November 4, 2019 Order. The use of photographs did not satisfy
the "best evidence" rules under Pa. R.E. 1002 and 1004.

2. Appellant challenges the denial of the Motion in Limine. See,
November 4, 2019 Order. The use of photographs did not satisfy
the rule of completeness set forth in Rule 106 of the Pa. Rules of
Evidence.

' She was simultaneously convicted in the matter indexed at 8045-18 and
sentenced to a consecutive three months' probation. The appeal of that matter
is addressed separately in the appeal indexed at 637 EDA 2020.
2 18 Pa. C.S.A. §2709(a)(3).

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 3. Appellant challenges the sufficiency of the evidence with regard
to the requisite intent of Count 2, Harassment.

4. Appellant challenges the imposition of costs and supervision fees
without consideration of Ms. Wile's ability to pay.

III. Discussion

In her first two issues, the Defendant challenges the admission of

screenshots of the text messages she sent to the victim. First, she claims that

the screenshots do not satisfy the "best evidence rule" and second, she claims

that the admission of screenshots violated the "rule of completeness."

It is well settled that, "[a]dmission of evidence is within the sound

discretion of the trial court and will be reversed only upon a showing that the

trial court clearly abused its discretion." Commonwealth v. Drumheller, 808

A.2d 893, 904 (Pa. 2002). "An abuse of discretion is not merely an error of

judgment, but is rather the overriding or misapplication of the law, or the

exercise of judgment that is manifestly unreasonable, or the result of bias,

prejudice, ill-will or partiality, as shown by the evidence of record."

Commonwealth v. Harris, 884 A.2d 920, 924 (Pa. Super. 2005), appeal denied,

593 Pa. 726, 928 A.2d 1289 (2007). This standard also applies to rulings on a

motion in limine. Commonwealth v. Parker, 104 A.2d 17 (Pa. Super. 2014)

(citation omitted).

The Rules of Evidence provide: "[a]n original writing, 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."

Pa.R.E. 1002. This rule corresponds to the common law "best evidence rule."

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Pa. R.E. 1002, cmt. The comment to the rule further notes that, there are 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.

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

Pa.R.E. 1002, cmt. (citing 5 Weinstein & Berger, Weinstein's Evidence § 1002(2)

(Sandra D. Katz rev. 1994)).

The Rule of Completeness provides, "[i]f a party introduces all or part of a

writing or recorded statement, an adverse party may require the introduction,

at that time, of any other part--or any other writing or recorded statement--that

in fairness ought to be considered at the same time." Pa. R. E. 106.

Neither rule is applicable. First, the Defendant misapprehends the

purpose of the best evidence rule. "[T]he best evidence rule exists to prevent a

witness from misrepresenting the content of a piece of evidence "

Commonwealth v. Janda, 14 A.3d 147, 162 (Pa. Super. 2011). Instantly, the

victim took his phone to the police station and showed officers the more than

80 abusive messages sent by the Defendant. He then took screenshots of the

messages and emailed them to the investigating officers. The Defendant

admitted that she sent the messages, but argued that the police were required

4
to download the contents of the victim's phone to obtain the messages. N.T.

Nov. 4, 2019 at 13. The Defendant made no argument that the messages were

altered or inaccurate, only that they were turned over by the victim and should,

thus, be considered unreliable. The Commonwealth admitted the screenshots

of the messages into evidence. Commonwealth Exhibits C-1 through C-5. Had

the Commonwealth only presented the victim's testimony regarding the

contents of the messages, without the admission of the messages themselves,

the Defendant could raise a colorable best evidence argument. Likewise, the

police were not required to download the victim's phone for the messages to be

admissible. See, Janda at 162. (finding that Commonwealth was not required

to admit memory card from a digital camera; photographs obtained from that

camera were admissible). Therefore, this claim is without merit and must fail.

Likewise, the rule of completeness does not apply. The Court notes that

while the Defendant raised the rule of completeness in her Motion in Limine,

she did not present argument on that issue, which this Court submits may

constitute waiver. Even if this issue was not waived, it is wholly meritless.

There was no evidence that the text messages were taken out of context or that

there were additional messages that were not introduced into evidence. By her

own admission, the Defendant sent a string of unanswered messages, thus

there were no other messages to be admitted and this claim is without merit.

The Defendant's next claim is that the evidence was insufficient to

convict her of harassment. It is well settled that,

[i]n reviewing the sufficiency of the evidence, we are required to
view the evidence, and all permissible inferences to be drawn

5
 therefrom, in the light most favorable to the Commonwealth, as
verdict winner. The test is whether, taking as true the evidence
most favorable to the Commonwealth, together with all reasonable
inferences therefrom, the evidence is sufficient to prove appellant's
guilt beyond a reasonable doubt.

Commonwealth v. Ruffin, 463 A.2d 1117, 1118-19 (Pa. Super. 1983) (citations

omitted).

"A person commits the crime of harassment when, with intent to harass,

annoy or alarm another, the person engages in a course of conduct or

repeatedly commits acts which serve no legitimate purpose." 18 Pa.C.S.A. §

2709 (a)(3). "An intent to harass may be inferred from the totality of the

circumstances." Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013)

(citation omitted). "[The Superior Court] has held that "with intent to harass,"

in phone-call related cases, requires a determination of whether the caller

knew or should have known that the effect of the call would be to harass the

listener. The use of obscene language and threats of death satisfy this

requirement." Commonwealth v. Duda, 831 A.2d 728, 731 (Pa. Super. 2003)

(citation omitted).

Instantly, the Defendant sent the victim a "continuous string" of

profanity laden text messages that became increasingly hostile as he did not

respond to her. Commonwealth Exhibits C-1 through C-5. As with a phone

call, this Court submits that the use of obscenities and threats in a text

message is sufficient to prove the intent to harass. .Nearly every message

contained obscene language, as noted above. She also threatened to call the

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police, stating "Three minutes or you're going to see what Imean. 911 is about

to be called." N.T. Nov. 4, 2019 at 53. Clearly, based on the totality of the

circumstances, the evidence was sufficient to prove that she intended to harass

the victim. The texts did not pertain to the care and custody of their children.

and served no purpose other than to harass the victim. Therefore, this claim is

without merit and must fail.

In her final issue, the Defendant challenges the imposition of the costs of

prosecution. While the Defendant did raise this claim in a post-sentence

motion, she did not raise it at the time of sentencing when costs were imposed,

thus she may have waived the issue. N.T. Jan. 21, 2020 at 19. Insofar as this

claim may implicate the legality of the Defendant's sentence, which cannot be

waived, she is due- no relief. Commonwealth v. Childs, 63 A.3d 323, 325 (Pa.

Super. 2013)(stating that challenge to denial of hearing on inability to pay

"contests the authority of the court to impose the costs at issue and, therefore,

challenges the legality of his sentence"). A defendant is not entitled to a pre-

sentence hearing on his ability to pay. Id. (citing Commonwealth v.

Hernandez, 917 A.2d 332, 336-37 (Pa. Super. 2007)). Therefore, this claim is

without merit and must fail.

Pursuant to the Rules of Criminal Procedure, the "court shall not commit

the defendant to prison for failure to pay a fine or costs unless it appears after

hearing that the defendant is financially able to pay the fine or costs." Pa. R.

Crim. P. 706 (A). Accordingly, "[wJhile Rule 706 "permits a defendant to

7
demonstrate financial inability either after a default hearing or when costs are

initially ordered to be paid in installments," the Rule only requires such a

hearing prior to any order directing incarceration for failure to pay the ordered

costs. Childs, 63 A.3d at 326 (citing Hernandez, 917 A.2d at 337)(emphasis in

original). In Hernandez, the Superior Court concluded that a hearing on ability

to pay is not required at the time that costs are imposed:

The Supreme Court ... did not state that Fuller3 requires a trial
court to assess the defendant's financial ability to make payment
at the time of sentencing. In interpreting Fuller, numerous federal
and state jurisdictions have held that it is not constitutionally
necessary to have a determination of the defendant's ability to pay
prior to or at the judgment of sentence.... [We] conclude
that Fuller compels a trial court only to make a determination of an
indigent defendant's ability to render payment before he/she is
committed.

Hernandez, 917 A.2d at 337.

Thus, even if she had requested this Court to do so, this Court was not

required to hold a hearing on the Defendant's ability to pay costs. 4 In the event

that the Defendant fails to make payment as ordered, at that time the court

will be required to hold a hearing on his ability to pay.

3 Fuller v. Oregon, 94 S.Ct. 2116, 2118, 417 U.S. 40, 40 (1974).
4 The Court recognizes that this issue is currently awaiting en banc resolution

before our Superior Court in the matters of Commonwealth v. Gary-Ravenell,
J-E01004-20, 2551 EDA 2018, and/or Commonwealth v. Lopez, J-E01005-20,
1313 EDA 2018. Unless and until the Superior Court decides otherwise,
precedent dictates that the Defendant is not entitled to an ability to pay
hearing at the time of sentencing.

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 IV. Conclusion

Based on the foregoing, the judgement of sentence should be affirmed.

BY THE COURT:

STEVEN T.O'NEILL J.

Copy of the ab ve Opinion
sent on /4(
• -Jad to the following:
Robert Falin, Esq.
Lee : .rey, E

Judicial ire istant

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