Com. v. Molitor, R.

• Court: Superior Court of Pennsylvania
• Decided: June 26, 2025
• Docket: 1303 EDA 2024
• Status: Unpublished

Opinion

J-S14008-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROBERT MOLITOR : : Appellant : No. 1303 EDA 2024

Appeal from the Judgment of Sentence Entered December 22, 2023 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-001179-2022

BEFORE: DUBOW, J., BECK, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED JUNE 26, 2025

Appellant, Robert Molitor, appeals from the December 22, 2023

judgment of sentence entered in the Delaware County Court of Common Pleas

following his conviction of Aggravated Indecent Assault - Complainant Less

Than 13 Years of Age, Indecent Assault - Complainant Less Than 13 years of

Age, and Corruption of Minors.1 Appellant challenges the admissibility of text

messages and asserts that the verdicts were against the weight of the

evidence. After careful review, we affirm.

We glean the relevant facts and procedural history from the trial court’s

opinion and the certified record. The case involves Appellant’s sexual abuse

of his niece (“Child”), born in 2011. During the relevant time, Child’s father

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. §§ 3125(b), 3126(a)(7), and 6301, respectively. J-S14008-25

(“Father”) had primary custody of Child, and they lived with Child’s older

brother (“Brother”), Father’s fiancée (“Stepmother”), 2 and Stepmother’s son.

Child’s mother (“Mother”) had partial custody, which she exercised at her

parents’ (“Maternal Grandparents”) home, where her brother, Appellant, also

resided.

Child often played Fortnite, a video game, with Appellant in his third-

floor bedroom at Maternal Grandparents’ home as well online from Father’s

house. Child alleged that on one occasion while she was playing Fortnite in

Appellant’s room, Appellant snuck up on her and inserted his finger into her

vagina under her clothes. While she did not initially report the abuse, at some

point in 2021, Child, then 9 years old, disclosed the assault to Brother, then

approximately 15 years old. Brother informed Stepmother and Father, who

contacted the police.

On July 26, 2021, Jovanni Velez, the Director of the Delaware County

Children’s Advocacy Center (“CAC”), engaged in a recorded forensic interview

of Child. During the interview, Child reiterated that Appellant snuck up on her

while she was playing Fortnite in Appellant’s room and inserted his finger into

her vagina under her clothes. She additionally stated that this occurred on

multiple occasions.

As part of the investigation, Father consented to a search of Child’s

phone, which revealed approximately 1,600 pages of text messages between ____________________________________________

2 While Father and his fiancée were not married at the time of trial, Child referred to Father’s fiancée as her “stepmom.”

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Child and Appellant. The trial court summarized the messages as showing

that Appellant and Child texted “in a manner befitting two [] smitten, young

teens and bearing no resemblance” to what one “would see as appropriate

between a [44-year-old] uncle and his [9-year-old] niece.” Trial Ct. Op.,

10/17/24, at 26-27. The text messages revealed that Appellant would

instigate “frequent discord” with Child, prompting Child “to profusely

apologize.” Id. at 27. In one apology in regard to whether Appellant or

Mother was a “better” Fortnite player, Child replied “I'm joking. I was joking.

I'm sorry[,]” followed immediately by “I will hump you.” Id. at 28; N.T.,

9/26/23, at 262.

After numerous continuances, the trial court presided over a five-day

jury trial from September 25-29, 2023. At trial, Child reiterated that Appellant

put his finger “inside [her] private” while she played Fortnite on his bed and

that he repeated the act other times. N.T., 9/26/23, at 74-76, 82-84. She

testified that she could not remember other details. On cross-examination,

the defense attempted to impeach Child with her prior testimony at the

preliminary hearing where she testified that Appellant touched her with “his

arm” rather than his finger. Id. at 97. On redirect, Child clarified that he

used his finger. Id. at 107.

The defense also introduced a photograph of a note painted by Child,

which read, “I’m sorry Robert[,]” implying that Child fabricated the

allegations. Id. at 99. On redirect, the Commonwealth introduced a subset

of the text messages in which Child apologized repeatedly to Appellant

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regarding issues unrelated to the abuse allegation. Id. at 114. Appellant

objected claiming that the texts exceeded the scope of cross examination. Id.

The court overruled the objection, finding that Appellant had opened the door

to their admission via the painted apology note. Relevantly, Child

acknowledged that the text messages were between her and Appellant. Id.

at 119-123.

The Commonwealth additionally presented the testimony of Father,

Brother, and Stepmother, who testified to the facts set forth above. Father

and Stepmother noted that Mother and Child had court-ordered phone calls

while Child was in Father’s custody. They explained, however, that the “bulk”

of the calls were between Appellant and Child. Trial Ct. Op. at 30. Stepmother

also testified to overhearing Appellant during an online game with Child say

that “he just snuck her a kiss” when “nobody was looking[,]” which was their

“little secret.” N.T., 9/26/23, at 206-07. She additionally described seeing

text messages in which Appellant asked Child to delete other messages. Id.

at 207.

Father testified that, on a few occasions, Child returned from Mother’s

custody wearing no underwear and seemed “to be aggravated[.]” Trial Ct.

Op. at 30-31. Father additionally acknowledged a 2019 CAC forensic interview

of Child, initially stating that he did not know the reason for the interview; on

cross-examination, however, he stated that documents relating to that

interview named Appellant and Father as the potential perpetrators, but

Father asserted that CAC ultimately “didn’t find anything.” N.T., 9/26/23, at

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133, 152. Father also recounted that in approximately early-2020, Brother

told him “that he had seen [Child] with her pants down, sitting on Robert’s

face.” Id. at 138. Father asserted that he reported this incident to CYS, but

CYS did not investigate the allegation.

Brother testified to the incident in 2020 and his report of the 2021

incident. On cross examination, he admitted that Maternal Grandmother

prohibited him from coming to her house because he stole money from the

house. Id. at 194-95.

Brian Knowlton, a digital forensic analyst for the Delaware County

District Attorney’s Office testified to extracting approximately 1,600 pages of

text messages between Appellant and Child from Child’s phone. Relevantly,

at sidebar, defense counsel agreed that Analyst Knowlton did not need to

acknowledge that each of the messages had been retrieved from Child’s

phone. Id. at 231-32.

Clifton Heights Police Sergeant Stephen Brown testified next regarding

his investigation of the allegations beginning in June 2021. When the

Commonwealth sought to introduce portions of the text messages, Appellant

objected, asserting various bases, including lack of authentication. Id. at 251.

The court overruled the objections, after which the Commonwealth presented

several of the text messages through Sergeant Brown’s testimony.

Finally, the Commonwealth presented CAC Director Velez, who testified

regarding her forensic interview of the Child, which the Commonwealth played

for the jury.

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The defense presented the testimony of Mother and Maternal

Grandmother, who both acknowledged that Child and Appellant often played

Fortnite together, asserted that Child loved Appellant, and denied witnessing

Child be upset by Appellant. N.T., 9/27/23, at 127-28, 141-42. Appellant

additionally presented five character witnesses. 3

On September 29, 2023, the jury convicted Appellant on all counts. On

December 22, 2023, the trial court imposed on Appellant an aggregate

sentence of 5 to 10 years of incarceration followed by 3 years of probation. 4

Appellant filed post-sentence motions, claiming, inter alia, that the verdict was

against the weight of the evidence. The trial court denied relief on April 11,

2024.

On May 10, 2024, Appellant filed a notice of appeal. Appellant and the

trial court subsequently complied with Pa.R.A.P. 1925.

Appellant presents the following issues on appeal:

I. Did the trial court abuse its discretion in allowing into evidence and publishing to the jury text messages purportedly between [] Appellant and [Child] through investigator Stephen Brown over defense objection as they had not been properly authenticated?

II. Did the trial court err in denying [] Appellant’s motion for a new trial as when the improperly admitted text messages are excluded, the verdicts are against the weight of the evidence? ____________________________________________

3 The Commonwealth and Appellant also presented experts regarding the behavior of child sexual assault victims.

4 Based upon his convictions, Appellant is subject to Tier III requirements under the Sexual Offender Registration and Notification Act.

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Appellant’s Br. at 4.

In his first issue, Appellant claims that the trial court abused its

discretion in admitting the text messages allegedly sent between Appellant

and Child, asserting that the Commonwealth failed to authenticate the

messages. Id. at 20-28.

As with other evidentiary questions, appellate courts review a trial

court’s determination regarding the authentication of text messages for abuse

of discretion. Commonwealth v. Reed, 292 A.3d 601, 605 (Pa. 2023). “[A]

trial court abuses its discretion only if it misapplies the law, or its exercise of

judgment is manifestly unreasonable or the result of partiality, prejudice, bias

or ill-will.” Commonwealth v. Nabried, 327 A.3d 315, 321 (Pa. Super.

2024).

Pa.R.E. 901 governs the authentication of evidence and requires the

proponent of the evidence to demonstrate that “the item is what the

proponent claims it is.” Pa.R.E. 901(a). The Rule specifically provides for the

authentication of digital evidence, such as text messages, through the

presentation of either “(A) direct evidence such as testimony of a person with

personal knowledge; or (B) circumstantial evidence such as: (i) identifying

content; or (ii) proof of ownership, possession, control, or access to a device

or account at the relevant time when corroborated by circumstances indicating

authorship.” Pa.R.E. 901(b)(11).

While the proponent of digital evidence must “produce sufficient

evidence to support a finding that a particular person or entity was the

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author[,]” it need not demonstrate “that no one else could be the author.”

Pa.R.E. 901(b)(11), cmt. As this Court explained, “authentication of text

messages turns upon the depth of direct and circumstantial evidence of

authorship[.]” Commonwealth v. Orr, 255 A.3d 589, 601 (Pa. Super.

2021). Relevant circumstantial evidence of authorship includes “distinct

linguistic phrases” used by the alleged author or specific information known

only to the relevant parties. Id. at 600 (citation omitted).

We initially address whether Appellant preserved his objection to the

text messages based on authentication. The trial court opined that Appellant

waived this claim by failing to object based on authentication when the

Commonwealth read a subset of text messages during Child’s testimony,

specifically Exhibit C23; by not objecting during Analyst Knowlton’s testimony;

and by not objecting to the Commonwealth’s move to admit the exhibits at

the close of its case. Trial Ct. Op. at 90-91.

We agree that Appellant waived his objection based on authentication

in regard to Exhibit C23, the subset of text messages read into the record

during Child’s testimony.5 However, we conclude that Appellant did not waive

his authentication objection to the text messages contained in Exhibits C25-

30 by failing to object during Analyst Knowlton’s testimony. As noted, Analyst

Knowlton’s testimony addressed solely the extraction of the messages from

Child’s phone, a process which Appellant does not dispute. Instead, Appellant ____________________________________________

5 Indeed, it appears that Appellant recognizes this waiver as he seeks relief as

to “Exhibits [C]25-30,” without mention of Exhibit C23. Appellant’s Br. at 27.

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preserved his authentication objection by raising it during Sergeant Brown’s

testimony addressing the content of the messages between Appellant and

Child. Moreover, Pennsylvania’s evidentiary rules clarify that Appellant did

not need to renew his objection when the Commonwealth moved to admit the

exhibits because he had previously preserved his objection. Pa.R.E. 103(b).

Turning to the merits, Appellant argues that the Commonwealth failed

to authenticate the text messages because it did not prove that Child and

Appellant authored the messages. Appellant’s Br. at 20-28. He notes that

the Commonwealth did not demonstrate that Appellant or Child had sole

access to their phones. Id. at 26. Indeed, he asserts that Father had access

to Child’s phone and “had motive and opportunity to fabricate communication

between” Appellant and Child, in light of the 2019 sexual abuse allegation

against Father and his contentious custody dispute with Mother. Id. at 26-

27. Appellant emphasizes that the Commonwealth did not introduce evidence

confirming that the number associated with “Uncle Rob” on Child’s phone was

in fact his number. Id. at 27. Thus, he argues that this evidence is not

sufficient for authentication of the text messages.

We reject Appellant’s argument and instead conclude that the trial court

did not abuse its discretion in overruling Appellant’s objection. Trial Ct. Op.

at 90-97. First, Child’s testimony, which acknowledged the text

conversations, provides direct evidence that the text messages were between

her and Appellant, for purposes of Rule 901(b)(11)(A). N.T., 9/26/23, at 119-

123. Moreover, the record includes ample circumstantial evidence in the form

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of identifying content demonstrating Appellant and Child’s authorship to

satisfy Rule 901(b)(11)(B), including testimony recounting that Appellant and

Child regularly texted each other. Id. at 71-72, N.T, 9/27/23, at 133.

Additionally, Child’s cell phone identified the contact as “Uncle Rob,” and the

messages referenced Appellant’s role as “uncle,” utilized a familial nickname

by which Appellant called Child, and included substantial discussion of

Fortnight, which they often played together. Id., 9/26/23, at 120-24, 262-

271; N.T. 9/27/23, at 38. Based on this evidence, we conclude that the trial

court did not abuse its discretion in finding that the Commonwealth sufficiently

authenticated the text messages.

In his second issue, Appellant seeks a new trial, claiming that the verdict

was against the weight of the evidence. In reviewing a weight claim, this

Court does not consider “the underlying question of whether the verdict is

against the weight of the evidence,” but rather reviews the trial court’s

exercise of discretion. Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa.

2000). In so doing, we “give the gravest consideration to the findings and

reasons advanced” by the trial court, which “had the opportunity to hear and

see the evidence presented[.]” Id.

In addressing a weight claim, a trial court must consider whether,

“notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.” Id. at 752 (citations and internal quotation marks omitted). In other

words, “a new trial should be awarded when the jury’s verdict is so contrary

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to the evidence as to shock [the trial court’s] sense of justice and the award

of a new trial is imperative so that right may be given another opportunity to

prevail.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation

omitted).

Appellant asserts that each of his three convictions was against the

weight of the evidence. Appellant’s Br. at 28-30. His argument, however, is

premised on the inadmissibility of the text messages, a claim which we

rejected above. Appellant avers that without the text messages the jury would

be left with “the almost completely unsubstantiated testimony” of Child, which

he describes as “vague, with little detail as to when the alleged assault

occurred or as to any of the attendant circumstances.” Id. at 29-30.

Appellant contends that either Brother or Father could have “planted a seed

of a false allegation” such that the subsequent investigation and trial could

have “transpired as it did.” Id. at 30. Appellant notes that Brother, who was

the first to report the assault, had shown Child pornography and allegedly

stole money from Mother’s family. Id. Appellant also reiterates that Father

“had motive to fabricate evidence.” Id. Thus, he argues that the “verdicts

shock one’s sense of justice[.]” Id.

After careful review of the record, including the text messages, we

conclude that the trial court did not abuse its discretion in rejecting Appellant’s

weight claim. Trial Ct. Op. at 17-40. The trial court found that Child provided

a “largely consistent” description of the assault at her forensic interview,

during the preliminary hearing, and at trial. Id. at 33-34. The court rejected

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the defense’s suggestion that Father fabricated the allegations, opining that

Child did not possess “the needed mental acuity” to repeat the same

falsehoods “over the course of months to a professional forensic interviewer

and before the jury, both outside the presence and direct influence of her

father[.]” Id. at 36. Moreover, the court found Child’s allegations

“corroborated” by the “patently disturbing text messages of [a] sexualized

nature[,]” which evidenced Appellant’s “ongoing and varied emotional

manipulation” of Child. Id. at 37. In light of this evidence, we discern no

abuse of discretion in the trial court’s conclusion that the verdict did not shock

its conscience. Id. at 40. Accordingly, we affirm the judgment of sentence.

Judgment affirmed.

Date: 6/26/2025

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