Com. v. Fischer, N.

2024 Pa. Super. 313

• Court: Superior Court of Pennsylvania
• Decided: December 31, 2024
• Docket: 1050 EDA 2023
• Status: Published

Opinion

J-S11037-24

2024 PA Super 313

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : NICHOLAS FISCHER : : Appellant : No. 1050 EDA 2023

Appeal from the Judgment of Sentence Entered March 27, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0003812-2020

BEFORE: BOWES, J., McLAUGHLIN, J., and COLINS, J. *

OPINION BY COLINS, J.: FILED DECEMBER 31, 2024

Appellant, Nicholas Fischer, appeals from the judgment of sentence

imposed following his conviction of two counts of harassment. After careful

review, we affirm.

On September 16, 2020, Appellant was charged with three counts of

harassment and one count of stalking related to conduct in August and

September 2020, directed towards his ex-fiancée (“Victim”). Appellant and

Victim are parents to a child, who was approximately two years old as of the

date of the relevant events (“Child”). N.T., 1/31/23, at 183; N.T., 2/1/23, at

23-25. Appellant and Victim were in a ten-year relationship, but the

relationship ended prior to August 2020. N.T., 2/1/23, at 23-28, 146-47, 180-

81.

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* Retired Senior Judge assigned to the Superior Court. J-S11037-24

At a jury trial commencing on January 31, 2023, the Commonwealth

presented testimony from two witnesses, Victim and Officer Megan Bevenour,

who was a patrol officer and detective with the Bethel Township Police

Department during the relevant period. Officer Bevenour became familiar with

Appellant in Summer 2020, when he called 911 at least seven times

requesting wellness checks at the residence where Victim and Child lived.

N.T., 1/31/23, at 176-80, 185. Officer Bevenour conducted two of the

wellness checks and observed nothing out of the ordinary, with Child well-

nourished, dressed appropriately, and happy. Id. at 183-84, 249. Eventually,

Appellant was told to stop requesting the checks unless he could provide

specific evidence that Child was in danger. Id. at 184-85, 225.

In September 2020, Victim met with Officer Bevenour and told the

officer that Appellant’s communications via text message, telephone, and

email were causing her concern for her and Child’s safety. Id. at 186-87.

Victim showed Officer Bevenour a September 6, 2020 text message that was

purportedly from someone Officer Bevenour knew to be an Assistant District

Attorney in the Delaware County District Attorney’s Office. N.T., 1/31/23, at

198-201; N.T., 2/1/23, at 17, 159, 178; Exhibit C-2. The message expressed

the “extraordinary levels of worry and stress” Appellant was allegedly feeling

regarding Victim and Child’s whereabouts and requested that Victim notify the

sender of the message when she returned home from a weekend trip. N.T.,

1/31/23, at 217-18; Exhibit C-2, at 1-2. Officer Bevenour called the telephone

number associated with the text message and Appellant, whose voice she well

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knew from multiple prior conversations, picked up. N.T., 1/31/23, at 199-

200, 209, 225, 266; N.T., 2/1/23, at 13.

Victim testified at trial that, after August 2020, Appellant called and

texted her on her phone, attempted to call her through Facebook, and made

social media posts about her “nonstop,” at all times of day and night. N.T.,

2/1/23, at 28, 111. This included one occasion when Appellant called her over

100 times. Id. at 33. Victim stated that Appellant would sometimes use

different telephone numbers and would attempt to contact her on her work

office phone. Id. at 28-29, 32, 112. Victim testified that the communications

were “[n]erve-wracking” and left her feeling “terrified” and “uneasy” based on

threats Appellant made. Id. at 32, 34, 44, 48-49, 99, 159. Victim further

stated that she “could barely perform at [her] job” during the period when she

was receiving the messages because she was always concerned that Appellant

would show up at her house while she was gone. Id. at 75, 99.

At trial, Victim was shown copies of eleven emails that Appellant sent

her between August 11 and September 14, 2020, which Victim forwarded to

other email accounts before they were printed. N.T., 2/1/23, at 35-111;

Exhibits C-5 to C-6, C-8 to C-16.1 The emails generally concerned Appellant’s

1 Victim forwarded nine of the emails from her personal email account to her

work email account for printing because she did not have a printer at home. N.T., 2/1/23, at 35, 38, 92, 94, 98, 173; Exhibits C-5 to C-6, C-8 to C-14. She also forwarded one of the emails to Officer Bevenour and one of the emails to an employee of the District Attorney’s Office. N.T., 2/1/23, at 99, 108; Exhibits C-15, C-16.

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frustration that Victim was not allowing him contact with Child and included

veiled threats towards Victim and her family. See, e.g., Exhibit C-5 (“if you

don’t ensure our daughter is reunited with me this evening your life will change

forever tomorrow as will your mother’s . . . tread carefully You’re being

watched”); Exhibit C-6 (“I’m fairly certain that you are not ready for what is

to come in fact I know you’re not and I can’t tell you this time our daughter’s

life depends on it.”); Exhibit C-13 (“all this stuff’s adding up to a nightmare

for you [] and maybe it’s the truth undeniably[.] The nightmare exists and

there’s nothing I can do about changing it”).

Appellant objected at the outset of Victim’s testimony to the email

exhibits, arguing that they violated the best evidence rule because they were

forwarded from Victim’s personal email account to another account before

they were printed. N.T., 2/1/23, at 8; see also id. at 38, 43, 52, 63, 69, 73,

77, 92, 97, 102, 109 (defense counsel noting standing objection to the

admission of each of the eleven emails). The trial court overruled the

objection on the basis that the exhibits were admissible as duplicates of the

original emails. Id. at 8-9.2

2 While the trial court stated that the forwarded emails were admissible as “copies as described in Article 10” of the Pennsylvania Rules of Evidence, it appears that the court intended to admit the emails as “duplicates” under the Rules. N.T., 2/1/23, at 8; see Pa.R.E. 1001(e) (defining a duplicate as “a copy produced by,” inter alia, an “electronic . . . process or technique that accurately reproduces the original”).

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After deliberation, the jury found Appellant guilty of harassment—

repeated communication in an anonymous manner and harassment—repeated

communication in another manner and not guilty of harassment—repeated

communication at extremely inconvenient hours and stalking. 3 On March 27,

2023, the trial court sentenced Appellant to an aggregate term of twenty-four

months’ probation with restrictive conditions, with credit for twelve months of

pre-trial detention spent on electronic home monitoring. Sentencing Order,

3/27/23. Appellant then filed this timely appeal.4

Appellant presents the following issue for our review:

Whether the trial court erred when it permitted the prosecution to introduce evidence of forwarded emails and related testimony in violation of the Best Evidence Rule, since the documents are inadmissible as originals or duplicates, were subject to potential manipulation, and leave out portions of the communications?

Appellant’s Brief at 5. Appellant argues that, as “writings” under the

Pennsylvania Rules of Evidence, the forwarded email exhibits admitted by the

Commonwealth do not constitute either “originals” or “duplicates” as defined

under the Rules. Appellant contends that, unlike text message screenshots,

which were held admissible under the best evidence rule in Commonwealth

v. Talley, 265 A.3d 485 (Pa. 2021), forwarded emails “are not verbatim

3 18 Pa.C.S. §§ 2709(a)(5), 2709(a)(7), 2709(a)(6), and 2709.1(a)(2), respectively. 4 Appellant filed a Pa.R.A.P. 1925(b) concise statement of errors complained

of on appeal on June 12, 2023, and the trial court filed an opinion pursuant to Rule 1925(a) on September 20, 2023.

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reproductions of originals” and therefore cannot be considered duplicates for

purposes of the best evidence rule. Appellant’s Brief at 14. Appellant asserts

that, even if the exhibits qualify as duplicates, the trial court should not have

allowed them to be admitted because there were “genuine questions to their

accuracy” as Victim left out “important parts of the conversations” and could

have modified the content of the original messages. Id. at 15.5

We review a trial court’s evidentiary ruling to determine whether the

court abused its discretion. Talley, 265 A.3d at 530.

An appellate court will not find an abuse of discretion based on a mere error of judgment, but rather where the trial court has reached a conclusion which overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. Importantly, an appellate court should not find that a trial court abused its discretion merely because the appellate court disagrees with the trial court’s conclusion.

Id. (citation omitted).

5 In his brief, Appellant challenges the admission of twelve exhibits, Exhibits

C-5 through C-16. See, e.g., Appellant’s Brief at 15. However, Exhibit C-7 was a text message that Victim received, took screenshots of, and then sent the screenshots to her work computer for printing. See N.T., 2/1/23, at 45- 46; Exhibit C-7. Because Appellant’s argument relates only to the forwarding of emails and not screenshots of text messages and in light of the fact that Appellant specifically argues that screenshots are more reliable duplicates than forwarded emails, we assume that Appellant only challenges the admission of the eleven forwarded emails and not the screenshot of a text message. To the extent we would address the admissibility of Exhibit C-7, we would find it admissible for the reasons stated in Talley, which is discussed infra.

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The best evidence rule requires that an original or duplicate of a writing

must generally be introduced to prove the content of a writing that is closely

related to a controlling issue in the case. See Pa.R.E. 1002, 1003, 1004(d);

Talley, 265 A.3d at 531. Under the Pennsylvania Rules of Evidence, “[a]

‘writing’ consists of letters, words, numbers, or their equivalent set down in

any form.” Pa.R.E. 1001(a).

An “original” of a writing . . . means the writing . . . itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, “original” means any printout--or other output readable by sight--if it accurately reflects the information.

Pa.R.E. 1001(d). A “duplicate” is defined as “a copy produced by a

mechanical, photographic, chemical, electronic, or other equivalent process or

technique that accurately reproduces the original.” Pa.R.E. 1001(e). “A

duplicate is admissible to the same extent as the original unless a genuine

question is raised about the original’s authenticity or the circumstances make

it unfair to admit the duplicate.” Pa.R.E. 1003; see also Talley, 265 A.3d at

531 (“While the rule no longer bars the routine use of duplicates, a duplicate

cannot substitute for an original if the opponent raises a genuine claim as to

the authenticity of the original or if admission of the duplicate otherwise is

unfair to the opponent.”).

Talley is the most instructive precedent for the present matter. In that

case, the Commonwealth admitted into evidence, over Talley’s best-evidence-

rule objection, screenshot captures of text messages he sent to a former

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romantic partner at his trial for stalking and terroristic threats. Talley, 265

A.3d at 500-01, 504. Our Supreme Court concluded that the screenshots

were closely related to a controlling issue in the case as the “contents [of the

messages] were the actus reus of” the charges against Talley; therefore, the

printed screenshots were only admissible as originals or duplicates under our

Rules of Evidence. Id. at 533-34 (emphasis omitted). The Court determined

that the screenshots were duplicates as they were created through “a

photographic process that produces an exact copy of whatever content

appeared on a digital device’s interface at the time it was taken.” 265 A.3d

at 535; see Pa.R.E. 1001(e). The Court further found that Talley had not

called into question specific features of the original messages that undermined

the reliability of the screenshot duplicates nor had he identified any unfairness

associated with the admission of the screenshots, notwithstanding that certain

information was omitted during the screen capture process, including the

sender’s information and the time of the messages. Talley, 265 A.3d at 504,

534-37. Therefore, our Supreme Court affirmed the trial court’s admission of

the screenshots. Id. at 537.

Here, there is no dispute that the eleven forwarded emails constituted

“writings” within the meaning of the best evidence rule. See Pa.R.E. 1001(a),

1002; Talley, 265 A.3d at 533 (concluding that text messages were writings

under our Rules of Evidence). Moreover, we agree with Appellant that the

emails were closely related to a controlling issue, as the emails were offered

by the Commonwealth to prove Appellant’s harassment of Victim. See Pa.R.E.

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1004(d); Talley, 265 A.3d at 533-34.6 Therefore, the printouts of the

forwarded emails were admissible only to the extent they were “original”

writings under the Rules or as “duplicates” where no genuine question was

raised about the authenticity of the original messages, and it was not unfair

to admit the duplicates under the circumstances. Pa.R.E. 1002, 1003; Talley,

265 A.3d at 531; see also Commonwealth v. Green, 162 A.3d 509, 518-

19 (Pa. Super. 2017) (en banc).

We conclude that the trial court did not abuse its discretion in finding

that the forwarded emails were duplicates of the original email messages.

6 The Commonwealth argues that the eleven forwarded emails were not closely related to a controlling issue in this case—and therefore the production of the original or duplicates of the emails was not required—because “the harassing nature and manner in which the communications occurred and [Appellant’s] intent when sending the communications are the necessary basis to satisfy the elements” of the harassment offenses, not the content of the messages themselves. Commonwealth’s Brief at 15-18. We agree that the forwarded emails were not relevant to the charge of harassment—repeated communication in an anonymous manner, 18 Pa.C.S. § 2709(a)(5), as this charge related to the text message Appellant sent under the name of an Assistant District Attorney and other anonymous communications and not the forwarded emails, sent from Appellant’s known email address, that are the subject of this appeal. However, the content of the forwarded emails was closely related to the other charge of which Appellant was convicted, harassment—repeated communication in another manner, 18 Pa.C.S. § 2709(a)(7), which criminalizes repeated communication, without any legitimate intent, for the purpose of harassing, annoying, or alarming another person. See Commonwealth v. Papp, 305 A.3d 62, 75 (Pa. Super. 2023). As we have explained, while this harassment offense does not concern itself with the subject matter of the defendant’s speech based on First Amendment concerns, the content of the defendant’s communication is nevertheless relevant to show that the communication was not legitimate and that the defendant’s intent was to harass, alarm, or annoy the victim. See id. at 75, 78.

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While not photographic duplicates as in Talley, the forwarded emails were

created through an electronic process that reproduced the original electronic

messages in their entirety, as well as the sender’s and receiver’s email

addresses, the time and date the messages were sent, and the subject line of

the email. See Pa.R.E. 1001(e) (defining a duplicate to include “a copy

produced by a[n] . . . electronic . . . process or technique that accurately

reproduces the original”); Exhibits C-5 to C-6 and C-8 to C-16. 7 Indeed, the

forwarded messages in this instance included more information than the

screenshots in Talley, where the sender’s identity and date and time of

sending was omitted. Cf. Talley, 265 A.3d at 504, 534-37. While the exhibits

admitted at trial contain additional information, namely Victim’s subsequent

forwarded messages, this does not alter the fact that the Appellant’s messages

to Victim and their relevant header information were reproduced in the

forwarded emails that were printed and admitted at trial.

Further, Appellant has not raised a genuine question as to the

authenticity of the original messages or the fairness of admitting the

forwarded messages. See Pa.R.E. 1003. While Appellant argues that “[t]he ____________________________________________

7 See also Merriam-Webster.com, https://www.merriam- webster.com/dictionary/email (defining “email” as “messages sent and received electronically through an email system”) (last accessed Nov. 11, 2024); Wikipedia.org, https://en.wikipedia.org/wiki/Email_forwarding (noting that no “specific technical meaning” for email forwarding exists but that manual client-based forwarding at issue here generally “inline quotes the message below the main text of the new message” and “preserves original attachments as well as a choice of selected headers (e.g. the original From and Reply-To.)”) (emphasis omitted) (last accessed Nov. 11, 2024).

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very method of forwarding an email allows original content to be completely

altered” and therefore there is no “guarantee[] of accuracy,” Appellant’s Brief

at 14, his complaint is not that the email program’s method failed to create

an accurate duplicate through forwarding but rather that the original

messages were “subject to manipulation” by Victim during the forwarding

process. N.T., 2/1/23, at 8. However, the potential for manipulation exists

when any duplicate is created, and Appellant has not called into question the

authenticity of any specific portion of the original messages, either in the trial

court or this Court. See Talley, 265 A.3d at 535-36 (concluding that Talley

had not raised a genuine question about the authenticity of the screenshots

where he failed to “call into question specific features of the originals that

would undermine the reliability of the duplicates in establishing the elements

of the criminal offenses”). Importantly, Victim authenticated each of the

eleven email exhibits prior to their admission into evidence, confirming that

the printouts were identical to the messages she received from Appellant on

the dates in question. N.T., 2/1/23, at 35-37, 40-42, 50-51, 62-63, 67-69,

72, 76, 91-92, 96-97, 100-02, 108-09.

Appellant further argues that it was unfair to admit the forwarded emails

because they did not disclose other portions of the communications between

Victim and Appellant that “could have provided additional context,” as well as

exculpatory information or impeachment evidence. Appellant’s Brief at 11,

15; see also N.T., 2/1/23, at 142-43, 160 (Victim acknowledging on cross-

examination that she did not provide police with all of her responses to

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Appellant’s text messages and emails). However, Appellant’s argument is not

that the duplicate, forwarded emails excluded some portion of the

correspondence between Appellant and Victim that was present in the

originals but instead that there were some other communications that Victim

did not print and provide to authorities. As Appellant did not allege “some

infirmity with the duplicate itself,” Talley, 265 A.3d at 535 (citation omitted),

he cannot show that “circumstances make it unfair to admit the duplicate”

instead of the original emails. Pa.R.E. 1003; see Talley, 265 A.3d at 536 (to

show unfairness of admitting duplicate under Rule 1003, a criminal defendant

must show that he was “prejudiced by not requiring production of the original

writing,” such as by proof that the “duplication process distorted the wording

of the original messages” or omitted relevant content). 8 ____________________________________________

8 Like Appellant, the Concurrence focuses on the “danger” of manipulation of

the text of the original email while an email is being forwarded but does not contest that the method of forwarding an email creates an accurate copy of the original, underlying email. Concurring Opinion at 9. Notably, the Concurrence’s concerns apply equally to email replies, and therefore would call into question the authenticity of any email in an email chain, aside from the most recent email in the chain. Moreover, as the Concurrence observes, rapid technological advances facilitating the manipulation of images since the publication of Talley raise concerns about the reliability of screenshots not considered by our Supreme Court. Id. at 6 n.2. Such questions about the authenticity of images, video, and other electronic media will only grow in the coming years. Rather than ruling out whole categories of electronic documents based upon the potential for fraud as the Concurrence would do, we believe that the better approach, consistent with our Rules of Evidence and Talley, is to presumptively allow the admission of duplicates of electronic documents that are shown to have been created through a reliable method, subject to the (Footnote Continued Next Page)

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Because Appellant has not raised any genuine question of authenticity

or unfairness with respect to the email exhibits presented at trial, the lower

court did not abuse its discretion in overruling Appellant’s best evidence rule

objection. Having found no merit to Appellant’s issue on appeal, we affirm his

judgment of sentence.

Judgment of sentence affirmed.

Judge McLaughlin joins the Opinion.

Judge Bowes files a concurring opinion.

Date: 12/31/2024

opponent demonstrating a genuine question of the original’s authenticity or some other unfairness related to the evidence in that specific case. See Pa.R.E. 1001(e); Pa.R.E. 1003; Talley, 265 A.3d at 531. Contrary to the Concurrence, we do not believe that requiring a criminal defendant to demonstrate a genuine question of authenticity or unfairness would place an unfair burden on the defendant as the question of a document’s admissibility can be resolved at a motion in limine prior to trial, outside the presence of the jury. We additionally note that, even where the electronic document is allowed over a best-evidence-rule objection, the opponent may always argue that the factfinder should ascribe no weight to that evidence based upon the possibility that it was created fraudulently.

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