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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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
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•'• = ••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).
2
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."
3
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
6
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
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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
9
Com. v. Wile, T.
Combined Opinion