J-A15037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
JOHN R. RODGERS : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHELE M. JEWETT : : Appellant : No. 1428 WDA 2021
Appeal from the Order Entered November 22, 2021 In the Court of Common Pleas of Mercer County Civil Division at No(s): 2021-2543
BEFORE: BOWES, J., KUNSELMAN, J., and SULLIVAN, J.
MEMORANDUM BY BOWES, J.: FILED: July 20, 2023
Michele M. Jewett appeals from the order granting a final protection from
abuse (“PFA”) order to John R. Rodgers (“Appellee”). We affirm.
We provide the following background. Appellee and Appellant engaged
in a sexual relationship, while Appellee was married, lasting from October of
2020 to March of 2021. During the affair, Appellant informed Appellee that
she had been criminally charged after her ex-husband accused her of pointing
a loaded gun at him.1 See N.T. Hearing, 11/22/21, at 18-19. ____________________________________________
1 We note that while the trial court rejected the attempted testimony on this topic from Appellee’s wife, the court allowed Appellant’s testimony regarding the incident with her ex-husband. See N.T. Hearing, 11/22/21, at 18-19, 40- 41, 127-28. Specifically, Appellant testified that she told Appellee about the original charges and underlying incident but that she had never pointed a gun at her ex-husband or anyone else, and she stated that she never disclosed to Appellee the ultimate disposition of the charges. See id. at 19. Appellant explained to the court that she pled guilty to summary harassment and (Footnote Continued Next Page) J-A15037-22
In the beginning of March 2021, the affair ended after a “heated
exchange” about the status of their relationship. Id. at 59. Angry with
Appellee for not leaving his wife, Appellant texted him that she planned “to
get back at [him]” by telling his wife and sending her “the information that
she had” if he did not “fess up to [his wife] and take [his] beating.” Id. at
59-60, 74. Appellee responded by blocking Appellant’s phone number. Id.
at 60.
On March 14 and 15, 2021, Appellee’s wife received approximately thirty
email messages at her work email address from “Amanda Gill,” a presumed
alias, using the address “germantown979@yahoo.com.” Id. at 24-26, 69-70.
The email messages informed Appellee’s wife of the affair, referenced specific
conversations between Appellant and Appellee regarding certain incidents with
Appellee’s wife during the affair, and attached screenshots of text messages
between Appellee and Appellant from October 2020 to March 2021. Id.
Appellee’s wife blocked the “germantown979” email address. Id. at 29.
On March 15, 2021, Appellee’s wife forwarded the emails to Appellee,
who admitted to the affair and opined that the sender was in fact Appellant
due to the attachments and the verbiage used in the email messages. Id. at
____________________________________________
disorderly conduct for “calling my [ex-]husband a bad word.” Id. In its opinion, the trial court concluded that Appellant’s testimony was properly admitted and relied upon it in its analysis, finding that her telling Appellee about the prior incident was relevant to the reasonableness of Appellee’s fear. See Trial Court Opinion, 1/26/22, at 8.
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39, 65, 68-69, 72-73. Appellee reached out to Appellant and asked her to
stop contacting his wife. Id. at 89.
From April to July of 2021, Appellant did not attempt to contact Appellee
or his wife. Id. at 80. However, on August 31, 2021, Appellee received a
text message from Appellant, using an unknown phone number ending
in -3308, asking him “how [his] divorce was going.” Id. at 54. Appellee
responded that he knew the message was from Appellant. Id. The following
day, Appellee’s wife also received a text message from the -3308 phone
number. Id. at 27-28.
On September 15, 2021, Appellee’s wife received an additional thirty-
four email messages from “Amanda Gill,” again referencing Appellee’s affair
with Appellant and attaching screenshots of text messages between Appellee
and Appellant. Id. at 29, 65-66, 68, 70. The emails were sent from the
address “germantown999@yahoo.com,” but had been forwarded to that email
address from the “germantown979” email address that Wife had blocked in
March. Id. at 29.
Wife received another text message from the -3308 number on
September 16, and an additional email, of the same type, on September 21,
2021. Id. Again, Appellee’s wife forwarded the communications to Appellee.
Id. Once again, the messages contained content that led Appellee to believe
Appellant had sent them. Id. at 29, 87-88. Appellee also received a second
text message from Appellant at the -3308 number, threatening to contact
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insurance companies Appellee worked with, indicating that she did not feel
Appellee was “suffering” since he was not “getting [his] beating.” Id. at 93.
Also around this time, Appellant posted as her Facebook banner a
picture taken from her security camera that depicted Appellee and Appellant
embracing inside her home, with Appellant’s face blurred. Id. at 64-65, 89-
90, 124. Appellant then sent Facebook friend requests to Appellee’s sister,
sister-in-law, daughter, ex-wife, and mother. Id. at 85, 93. Additionally,
Appellant sent an email to Appellee’s sister, informing her “about the state of
[Appellee’s] marriage.” Id. at 100. Several of Appellee’s family members
saw Appellee in Appellant’s Facebook banner picture and immediately
contacted Appellee. Id. at 93, 100.
Finally, in early October 2021, Appellant confronted Appellee’s daughter
outside a bathroom stall in the restaurant where his daughter worked. The
restaurant was approximately seventy-five miles away from where Appellant
resided. Appellant did not introduce herself, but quickly informed Appellee’s
daughter that Appellee had engaged in an affair with Appellant, and then
immediately left the restaurant. Confused by this interaction, Appellee’s
daughter informed him about what had transpired. Id. at 93, 103.
Even though Appellant had made no direct physical threats, Appellant’s
escalation from sending messages to his family members to appearing in-
person at his daughter’s workplace made Appellee fear for his safety. Id. at
80. Appellee worried that once Appellant realized she had not succeeded in
ending his marriage, the next confrontation would escalate to a physical
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assault. Therefore, Appellee petitioned the court for a PFA order. The court
granted a temporary PFA and scheduled a final PFA hearing. Id. at 94.
Meanwhile, Appellee and his wife also contacted the Pennsylvania State
Police, who decided to pursue harassment and stalking charges against
Appellant. Despite awareness of the temporary PFA order and pending
criminal charges, Appellant did not remove the Facebook banner picture and
continued attempting to contact Appellee through third parties. Id. at 129-
31 (Appellant admitting that she sent a friend request to a friend of Appellee’s
wife less than one week before the final PFA hearing). Appellant also
unsuccessfully petitioned for a PFA order against Appellee, alleging that
Appellee had drugged and sexually abused her multiple times during their
relationship and once aggressively pursued her in a vehicle. Id. at 78-79.
On November 22, 2021, the trial court held a final PFA hearing. After
receiving testimony from Appellee, Appellee’s wife, Appellee’s daughter,
Appellee’s sister, and Appellant, the trial court found Appellant’s testimony
incredible. Specifically, the court did not believe Appellant’s claims that
“Amanda Gill” was a separate entity, that Appellant did not realize the people
she was friend-requesting were Appellee’s relatives and friends, that she was
entitled to post the picture of Appellee because he had no reasonable
expectation of privacy while inside her home, and that she coincidentally
encountered Appellee’s daughter during a day trip with her son. Id. at 140.
Instead, the court credited Appellee’s testimony that Appellant’s increasingly
erratic behavior had been undeterred by the entrance of the temporary PFA
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order and that Appellee was, therefore, in reasonable fear of bodily injury.
Id. Based upon the above facts and recognizing that a PFA order may be
entered where the victim reasonably fears bodily injury, the trial court entered
a final PFA order prohibiting Appellant from having any direct or indirect
contact with Appellee. Id.
Thereafter, Appellant timely appealed,2 challenging the order granting
Appellee’s petition for a final PFA order.3 Both Appellant and the trial court
complied with Pa.R.A.P. 1925. On appeal, Appellant raises the following issues
for our consideration:
1. Did the court err by deeming [Appellee] credible?
2. Did the court err/abuse its discretion by entering a final [PFA] order when the alleged actions did not meet the definition of “abuse” under the statute?
3. Did the court err/abuse its discretion by failing to apply an objective standard of reasonableness as it relates to [Appellee’s] alleged fear of [Appellant]?
4. Did the court err by considering actions allegedly taken by [Appellant] against individuals who do not meet the required ____________________________________________
2 Appellant simultaneously filed a motion for reconsideration. The court initially denied the motion for reconsideration while granting leave for the parties to file briefs in support of a de novo hearing, but subsequently vacated that order upon realizing that Appellant had appealed to this Court. Appellant filed another motion to reconsider, asserting that by permitting briefing the court had granted the initial reconsideration motion and had jurisdiction to schedule a de novo hearing notwithstanding the pending appeal. The trial court did not rule on this second motion and the matter proceeded to this Court.
3We separately address Appellant’s appeal from the order denying her PFA petition against Appellee at Jewett v. Rodgers, No. 1429 WDA 2021.
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relationship under the [PFA] Act in making a finding of abuse?
5. Did the court err by unfairly shifting the burden of proof to [Appellant] in this matter?
6. Did the court err/abuse its discretion by using the entry of a final [PFA] order in this matter as punishment [for Appellant’s] refusal to provide information to [Appellee] to assist in his criminal case against her?
7. Did the court err/abuse its discretion by admitting unauthenticated text message and email evidence?
8. Did the court err by admitting irrelevant testimony regarding [Appellee’s] phone records?
9. Did the court err/abuse its discretion by admitting testimony regarding text messages that [Appellee] was not able to produce?
10. Did the court err by admitting hearsay evidence related to information regarding [Appellant’s] alleged prior criminal charges?
11. Did the court err by allowing witnesses to testify via video during the proceedings?
Appellant’s brief at 9-11 (cleaned up, reordered for ease of disposition).
Appellant’s first four claims implicate the sufficiency of the evidence to
enter the final PFA order. “In reviewing the validity of a PFA order, we must
determine whether the evidence, in the light most favorable to petitioner and
granting [him] the benefit of all reasonable inferences, was sufficient to
sustain the trial court’s determination that abuse was shown by the
preponderance of the evidence.” S.W. v. S.F., 196 A.3d 224, 228 (Pa.Super.
2018) (citation omitted). This Court “review[s] the trial court’s legal
conclusions for an error of law or abuse of discretion.” Hood-O’Harra v.
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Wills, 873 A.2d 757, 759 (Pa.Super. 2005) (cleaned up). Assessing the
“[c]redibility of witnesses and the weight accorded their testimony is within
the exclusive province of the [trial court] as fact finder.” Mescanti v.
Mescanti, 956 A.2d 1017, 1020 (Pa.Super. 2008) (citation omitted). Thus,
we defer to the trial court’s determination of the credibility of witnesses at the
hearing where they are supported by the record. See Fonner v. Fonner,
731 A.2d 160, 161 (Pa.Super. 1999) (“This court defers to the credibility
determinations of the trial court as to witnesses who appeared before it.”
(cleaned up)). Indeed, “this Court has no authority to overturn the trial court’s
credibility determinations in [PFA] matter[s].” Karch v. Karch, 885 A.2d 535,
537 (Pa.Super. 2005) (cleaned up) (citing Fonner, supra).
Appellant alleges that the evidence presented failed to establish “abuse”
under the PFA Act and the court erred in finding Appellee credible. See
Appellant’s brief at 34. According to Appellant, while her communication may
have been unwanted or impolite, “mere annoyance or unwanted
communication cannot form the basis of a finding of abuse.” Appellant’s brief
at 33 (citing D.H. v. B.O., 734 A.2d 409 (Pa.Super. 1999)). Moreover, she
argues that the court failed to apply an objective standard in assessing the
reasonableness of Appellee’s alleged fear because “the actions that can be tied
to the Appellant would not reasonably lead to fear of imminent bodily harm.”
Id. at 43. Finally, she contends that the court erred by basing its finding of
abuse against Appellee on testimony from other individuals, and in concluding
that Appellee was credible. Id. at 34-37, 47-48.
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The PFA Act defines “abuse,” in relevant part, as follows:
The occurrence of one or more of the following acts between family or household members, sexual or intimate partners or persons who share biological parenthood:
....
(5) Knowingly engaging in a course of conduct or repeatedly committing acts toward another person, including following the person, without proper authority, under circumstances which place the person in reasonable fear of bodily injury.
23 Pa.C.S. § 6102(a).
We agree with Appellant that the certified record evinces no past
physical violence by Appellant to Appellee or explicit threats of future bodily
injury. However, the “purpose of the PFA Act is to protect victims of domestic
violence from those who perpetrate such abuse, with the primary goal of
advance prevention of physical and sexual abuse.” Custer v. Cochran, 933
A.2d 1050, 1054 (Pa.Super. 2007) (cleaned up, emphasis added). Thus, the
PFA Act does not require actual physical harm before issuing a PFA order. See
E.K. v. J.R.A., 237 A.3d 509, 522 (Pa.Super. 2020) (noting that “[b]ecause
the goal of the PFA Act is to prevent physical and sexual abuse, a victim does
not have to wait for physical or sexual abuse to occur for the PFA Act to
apply”). Since there is a multitude of ways to convey a threat of physical
harm, a showing of “‘reasonable fear’ is sufficient.” S.W., supra at 231
(quoting 23 Pa.C.S. § 6102).
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Appellant contends that the threats set forth in D.H., supra, far exceed
any alleged threats that she made. See Appellant’s brief at 32. Upon review,
we do not find D.H. analogous to the instant case. In D.H., this Court
reversed the grant of a final PFA order after finding that the defendant’s
threats to expose potentially damaging financial information did not place the
plaintiff in reasonable fear of bodily injury. Therein, the plaintiff received five
days of harassing messages. Here, on the other hand, Appellant made
escalating threats to Appellee over several months. When direct contact failed
to cause Appellee to suffer enough for her satisfaction, Appellant expanded
her reach to include various friends and family members of Appellee, even
confronting Appellee’s daughter in person. Accordingly, the extensive scope
and duration of Appellant’s course of conduct in this case sets it apart from
that we considered in D.H.
Instead, we find E.K., supra, more fitting. In E.K., the petitioner
sought a PFA order after the defendant made a social media post about her.
The defendant’s post referred to the petitioner as a “conniving bitch[,]” stated
that she had “destroyed everything [he] care[d] about[,]” and warned that
“one day” everything she had “done to [him] will be returned to [her]
tenfold[.]” Id. at 515. Although the defendant made no explicit threat in the
post, the court credited the petitioner’s testimony that she construed the post
“as a threat to harm her physically,” and feared imminent serious bodily injury
from the defendant as he had harmed her in the past. Id. at 515. Drawing
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inferences in the petitioner’s favor, the trial court also concluded that the
defendant likely knew the post was threatening and intended for it to be
viewed by petitioner. Accordingly, the trial court granted the PFA petition,
pursuant to § 6102(a)(2), which requires a petitioner to demonstrate a
reasonable fear of imminent serious bodily injury. The defendant appealed,
alleging that the petitioner had “failed to demonstrate that she had a
reasonable fear of imminent serious bodily injury[.]” Id. at 521. This Court
affirmed the final PFA order, accepting the trial court’s credibility
determination that the petitioner interpreted the post as a threat to her
physical safety and that her fear was objectively reasonable. Id.
Here, unlike in E.K., it is undisputed that Appellant never physically
assaulted Appellee in the past. However, Appellant, by her own testimony,
informed Appellee of a prior incident wherein she allegedly pointed a loaded
gun at her ex-husband’s head during a disagreement. See N.T. Hearing,
11/22/21, at 18-19. Additionally, Appellant’s threats that she was “going to
get back at [him],” that Appellee was not “suffering” and needed “to take [his]
beating” were similar to the phrases used in the E.K. social media post. Id.
at 59, 74, 93. Moreover, Appellant’s escalating behavior supports the court’s
finding that, based upon his knowledge of Appellant, Appellee had a
reasonable belief that Appellant’s next step could be the infliction of physical
harm upon him. See N.T. Hearing, 11/22/21, at 80 (Appellee testifying,
“She’s reaching out to my family and friends. She . . . has driven out of the
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way to confront my daughter. These are things that have all escalated since
the dumping of [emails in] September. I truly do believe that she’s capable
of doing more than this, and I don’t want to not be ready.”).
The trial court was permitted to credit this testimony as “lending . . . to
the fear and reasonableness of that fear experienced by Appellee.” Trial Court
Opinion, 1/26/22, at 8; see also E.K., supra at 522. As the credibility
determination is supported by the record, we reject Appellant’s invitation to
reassess Appellee’s credibility. See Karch, supra (holding that this Court
cannot overturn a court’s credibility determinations in a PFA matter).
We also reject Appellant’s claim that the trial court should not have
considered testimony from Appellee’s family with respect to the fear that
Appellee felt. Appellee testified that each family member relayed the details
of their interaction with Appellant to him directly. See N.T., 11/22/21, at 93,
100. Accordingly, the trial court properly factored their testimony into its
assessment of the reasonableness of Appellee’s fear. The people targeted,
the subject matter of their conversations, and Appellant’s stated goal of
disrupting Appellee’s marriage lends credence to the trial court’s consideration
of these events as successful attempts at intimidating Appellee through third
parties. See E.K., supra at 513-20 (affirming the trial court’s finding that,
by posting his threats on Facebook, the defendant intended for the post to be
seen by petitioner and for her to be intimidated by it). Accordingly, these
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interactions are highly probative evidence as to the effect Appellant’s actions
had on Appellee.
Viewing the evidence in the light most favorable to Appellee supports
the trial court’s conclusion that an ordinary person in Appellee’s position,
having sustained six months of verbal acts of intimidation that had recently
escalated to in-person contact, would fear a physical assault was on the
horizon. See S.W., supra at 228. Thus, we discern no error or abuse of
discretion in the trial court’s application of the standard for assessing the
reasonableness of Appellee’s fear of bodily injury, nor in its finding that
Appellee established abuse pursuant to § 6102(a)(5) by a preponderance of
the evidence. See Trial Court Opinion, 1/26/22, at 2 (“The tactics, the nature
of the attacks, and the vectors of escalation combined with the disregard for
proper conduct in light of a temporary [PFA] levied against Appellant would
put a reasonable person in fear of serious bodily injury at the hand of Appellant
and/or Appellant’s agents.” (cleaned up)). Accordingly, the trial court did not
err in granting Appellee’s request for a final PFA order.
Next, Appellant alleges that the trial court improperly shifted the burden
of proof to Appellant at the PFA hearing. See Appellant’s brief at 37. The
burden of proof in PFA cases is the preponderance of the evidence, which “is
defined as the greater weight of the evidence, i.e., to tip a scale slightly[.]”
Raker v. Raker, 847 A.2d 720, 724 (Pa.Super. 2004) (citation omitted).
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In its Rule 1925(a) opinion, the trial court accurately noted that it placed
the burden of proof on the respective petitioners in their petitions against one
another. See Trial Court Opinion, 1/26/22, at 13. On appeal, Appellant
clarified that this claim was not based on the assignment of burdens of proof,
generally, but on the court inquiring about her reasons for traveling to the
restaurant where Appellee’s daughter worked and why she did not call
“Amanda Gill” as a witness at the PFA hearing. See Appellant’s brief at 38.
Critically, Appellant did not object to the court’s questions at the hearing and
did not raise this claim of error with sufficient particularity in her Rule 1925(b)
statement for the court to be on notice to address it. Accordingly, it is waived.
See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and
cannot be raised for the first time on appeal.”).
Even if not waived, our review of the certified record supports the court’s
finding that it applied the correct burden of proof. The court found Appellee
credible and that he had met his burden, and that Appellant’s proffered
evidence did not cast doubt on Appellee’s evidence or otherwise convince the
court that it should not enter the final PFA order. See Karch, supra at 538
(determining that, upon review of the court’s statement that defendant did
not provide evidence to tip the scale in his favor in context, the court applied
the correct burden of proof and “it [wa]s apparent that the trial court found
that [plaintiff] met her burden under the PFA Act and that [defendant’s]
testimony did not cast doubt on [plaintiff’s] evidence or persuade the trial
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court that the petition should be dismissed”). Therefore, Appellant is not
entitled to relief on this claim.
Appellant next argues that the trial court abused its discretion by
entering the final PFA order as punishment for Appellant’s refusal to provide
contact information for “Amanda Gill” that could have been used in the
pending criminal case against Appellant based upon her harassment of
Appellee’s wife. See Appellant’s brief at 49. The trial court found this claim
of error “wholly unfounded.” Trial Court Opinion, 1/26/22, at 12. Upon review
of the certified record, we agree that there is nothing to lend any credence to
Appellant’s claim that the instant PFA order was entered by the trial court as
retribution for Appellant’s refusal to provide information regarding “Amanda
Gill” for use in the pending criminal matter.
Prior to the final PFA hearing, Appellant invoked her Fifth Amendment
right against self-incrimination and asked for a continuance based upon the
pending criminal case, which was scheduled for a preliminary hearing in early
November 2021. The court granted that request and continued the hearing
to November 22, 2021. At the continued hearing, the parties neglected to
apprise the court of the status of the criminal charges. Indeed, it was not
until Appellant finished her direct testimony regarding her PFA petition against
Appellee, wherein she mentioned not meeting Appellee’s wife until “that
preliminary hearing a few weeks ago” that the court learned the criminal
charges were still pending. See N.T. Hearing, 11/22/21, at 8. The court
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immediately advised Appellant of her right to remain silent. See id. at 20-21
(“I wish I would have known that before she testified so I could give her her
[F]ifth [A]mendment warnings. . . . I was not aware that there are criminal
charges as a result, and we would have had a warning before you testified,
but you have counsel. So based on that, before you get re-called, you have
an absolute right to remain silent; okay?”).
When Appellee’s counsel sought to re-call Appellant for cross-
examination, the court reminded Appellant of her right to remain silent. See
id. at 112 (“I would once again advise her that I would not recommend [being
re-called by Appellee’s counsel] based on the fact that she’s facing criminal
charges and has an absolute right to remain silent.”). When Appellant
indicated that she would take the stand again because she was telling the
truth, the court again advised her of the repercussions of that decision. See
id. at 114 (“Ma’am, I want you to understand, and you have counsel if you
need a minute to talk to counsel. It is very unusual for somebody facing
criminal charges to go through a PFA hearing based on the fact they have a
fifth amendment right to remain silent. . . . And anything you say now, the
district attorney’s office can use against you at a potential trial you have.”).
Ultimately, after speaking with counsel, Appellant waived her right to
invoke the Fifth Amendment. See id. (after the court noted “you’ve been
explained that you have an absolute right to remain silent. Are you agreeing
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to waive that to testify[,]”Appellant answered “Correct. Yeah”). Based on the
foregoing, we deem this claim wholly devoid of merit.
Appellant’s remaining challenges concern the court’s admission of
various pieces of evidence. “Questions concerning the admission or exclusion
of evidence are within the sound discretion of the trial court and may be
reversed on appeal only when a clear abuse of discretion was present.”
Buchhalter v. Buchhalter, 959 A.2d 1260, 1263 (Pa.Super. 2008) (cleaned
up). Specifically, Appellant assails the admission of emails sent by “Amanda
Gill” to Appellee’s wife, and the admission of text messages sent to Appellee
and Appellee’s wife from the -3308 phone number, based upon Appellee’s
failure to authenticate the communications. See Appellant’s brief at 20-25.
This Court has explained the requirements of authentication as follows:
Pennsylvania Rule of Evidence 901 requires authentication prior to admission of evidence. The proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. Pa.R.E. 901(a). Testimony of a witness with personal knowledge that a matter is what it is claimed to be can be sufficient. Pa.R.E. 901(b)(1). Evidence that cannot be authenticated by a knowledgeable person, pursuant to [§] (b)(1), may be authenticated by other parts of [§] (b), including circumstantial evidence pursuant to [§] (b)(4). Pa.R.E. 901(b)(4) (item’s appearance, contents, substance, internal patterns, or other distinctive characteristics, taken together with all the circumstances).
Commonwealth v. Orr, 255 A.3d 589, 595 (Pa.Super. 2021).
Appellant does not challenge the accuracy of the messages, but rather
challenges the conclusion that she sent them. Preliminarily, we observe that
Appellant did not object to the admission of Exhibit 8, which contained the
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September 2021 emails and attachments. See N.T. Hearing, 11/22/21, at
66. Accordingly, Appellant has waived her challenge to the admission of the
September emails. See Pa.R.A.P. 302(a).
Turning to the March 2021 emails and text messages from the -3308
phone number, Appellee sought to authenticate these communications as
coming from Appellant through circumstantial evidence. See N.T. Hearing,
11/22/21, at 26, 31, 55-56. To wit, the proffered circumstantial evidence
included that all the communications at issue concerned Appellee’s romance
with Appellant. The March 2021 emails were sent to Appellee’s wife shortly
after the dalliance concluded ostensibly due to Appellee’s refusal to leave his
wife. See N.T. Hearing, 11/22/21, at 24-25. Indeed, the emails followed
Appellant’s explicit threat to Appellee “to tell” his wife about the affair “and
send her the information that she had.” Id. at 59-60. True to her word, the
March 2021 emails disclosed Appellee’s extramarital relationship with
Appellant, referenced specific conversations during the fling between Appellee
and Appellant regarding Appellee’s wife, and included attachments of
screenshots of text messages between Appellant and Appellee during the
romantic entanglement. The uncontested September 2021 emails also
included screenshots of text messages between Appellee and Appellant and
originated from the same “germantown979” email address. Id. at 29, 60, 65,
68, 70. Both Appellee and his wife received text messages from the -3308
phone number in September 2021, with Appellee’s wife receiving a text
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message about her marriage before the September email dump, and Appellee
receiving a message asking about his divorce mere days after the email dump.
Upon review of the certified record, we conclude that the voluminous
circumstantial evidence established that Appellee authored the March 2021
emails and the text messages from the -3308 phone number.4 Accordingly,
the trial court did not abuse its discretion in finding that the authentication of
these communications had been established and admitting them into
evidence.5
Appellant next argues that the trial court erred in admitting Appellee’s
phone records based upon the argument that because Appellee failed to link
Appellant to the phone number that sent text messages to Appellee and his
wife, the records were irrelevant. See Appellant’s brief at 46-47. “Evidence
is relevant if it logically tends to establish a material fact in the case, tends to
make a fact at issue more or less probable or supports a reasonable inference
or presumption regarding a material fact.” Smith v. Morrison, 47 A.3d 131,
137 (Pa.Super. 2012) (cleaned up). A trial court considering a PFA petition
has wide discretion in hearing evidence and determining its relevance
4 Indeed, the trial court doubted the existence of “Amanda Gill” given Appellant’s evasive answers. See Trial Court Opinion, 1/26/22, at 7 n.12.
5 In response to Appellant’s Rule 1925(b) concise statement, the trial court addressed the best evidence rule. See Trial Court Opinion, 1/26/22, at 5. However, this Court may “affirm the trial court’s decision . . . on any basis that is supported by the record.” Clark v. Peugh, 257 A.3d 1260, 1271 n.8 (Pa.Super. 2021) (citation omitted).
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throughout the course of the proceedings. In that regard, we have held as
follows concerning the admission of remote instances of abusive conduct:
In light of the protective purposes of the act, it was within the trial court’s discretion to hear any relevant evidence that would assist it in its obligation to assess the appellee’s entitlement to and need for a [PFA] order. If the trial court found the testimony to involve events too distant in time to possess great relevance to the case, it could certainly have assigned less weight to the testimony. However, it was not an abuse of discretion for the trial court to hear the evidence.
Miller on Behalf of Walker v. Walker, 665 A.2d 1252, 1259 (Pa.Super.
1995).
As discussed supra, Appellee presented sufficient circumstantial
evidence to establish Appellant’s authorship of the text messages from phone
number -3308. The phone records corroborated Appellee’s testimony
regarding the dates of when he received the text messages and the trial court
found the records relevant to the reasonableness of Appellee’s fear. See Trial
Court Opinion, 1/26/22, at 6-7. Upon review of the certified record, we
discern no abuse of discretion. Accordingly, Appellant is not entitled to relief
on this claim.
Appellant’s next evidentiary challenge concerns the court’s decision to
permit Appellee’s testimony about text messages he received but did not
produce.6 See Appellant’s brief at 26-28. We review this claim mindful of the
6 We note that Appellant’s reference to an objection on page forty-seven of the hearing transcript did not pertain to this issue. See Appellant’s brief at (Footnote Continued Next Page)
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following principles. The best evidence rule provides that “an original writing
is required in order to prove its content.” Commonwealth v. Talley, 265
A.3d 485, 531 (Pa. 2021) (cleaned up) (citing Pa.R.E. 1002). “[W]hen the
content of a writing is closely related to a controlling issue, the party seeking
to prove that issue must offer either the original or a duplicate.” Id. "Where
the document cannot be produced because it is lost or destroyed, production
of the original is excused and other evidence becomes admissible. Application
of the rule is limited to those situations where the contents of the document
are at issue and must be proved to make a case or provide a defense." Hera
v. McCormick, 625 A.2d 682, 687 (Pa.Super. 1993) (cleaned up).
By way of background, Appellee introduced his phone records in part to
show that he received multiple text messages from the -3308 phone number
on August 31 and September 18, 2021. Appellee had deleted the messages
relating to this exchange. Appellee testified that “if my memory serves me
right,” the September text message asked “how [his] divorce was going.” N.T.
Hearing, 11/22/21, at 54. Counsel then asked about Appellee’s response to
the text and, as he attempted to remember how many responses he sent,
Appellant objected to his testimony about the content of the messages without
26. Rather, it concerned an objection to the admission of the phone records without proper authentication. See N.T. Hearing, 11/22/21, at 46-48. However, because the certified record bears out that Appellant also objected to Appellee’s testimony concerning the text messages that he did not produce, that claim is preserved for our review.
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producing them based on hearsay grounds. Id. at 55. The court overruled
the objection. Id. at 57. Thereafter, Appellee testified to a text message he
received from the -3308 number on September 18, 2021, and produced a
screenshot of the message. Id. at 58-59. Appellant did not object.
In light of the foregoing, Appellant’s claim really only implicates
Appellee’s testimony regarding a single text message he received from
the -3308 phone number asking how his divorce was going. According to the
trial court, if a text message was admitted without Appellant’s stipulation, the
court considered it not for the truth of the contents of the message, but for
the effect on Appellee and the reasonableness of his fear. See Trial Court
Opinion, 1/26/22, at 5-6. Certainly, the contents of the text message were
relevant to the reasonableness of Appellee’s fear. However, even assuming
that the contents were therefore necessary for Appellee to meet his burden,
he was permitted to testify to the contents because the document could not
be produced. See Hera, supra at 687. Moreover, given the abundant
evidence presented in this case, the admission of testimony regarding this
single text message “did not affect the verdict and was therefore harmless.”
Yacoub v. Lehigh Valley Med. Assocs., P.C., 805 A.2d 579, 590 (Pa.Super.
2002) (en banc) (cleaned up).
Appellant next argues that the trial court erred in admitting hearsay
testimony from Appellee’s wife that she had learned about Appellant’s prior
criminal charges related to the incident with Appellant’s ex-husband. See
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Appellant’s brief at 43-45. Appellant acknowledges that the court properly
rejected this testimony at the hearing, but claims that the court subsequently
relied on the knowledge of the criminal charges by Appellee’s wife in assessing
Appellee’s fear in its Rule 1925(a) opinion. Appellant’s claim is belied by the
record.
At the hearing, in response to the court’s question of what she found
threatening in the texts and emails, Appellee’s wife testified as follows:
I believe that sending someone the amount of e-mails in the amount of time that she did is not normal behavior. I also, after my husband told me who the person was, I Google searched her and found out that . . . she pointed a loaded gun at her ex- husband and was arrested for terroristic threats and aggravated assault.
N.T. Hearing, 11/22/2021, at 40. Appellant’s counsel objected. While the
court did not explicitly sustain the objection, it nonetheless advised Appellee’s
wife that the answer was non-responsive and redirected her to the specific
question asked, thereby effectively sustaining the objection. Id. at 41. More
to the point, in its opinion, the court stated that it did not consider the
statement made by Appellee’s wife relating to the prior charges but did
consider Appellee’s knowledge of the incident not for the truth of the matter
asserted, i.e., that Appellant previously pointed a loaded gun at her ex-
husband, but for the effect that had on Appellee in assessing the
reasonableness of Appellee’s fear. See Trial Court Opinion, 1/26/22, at 8. As
noted supra, Appellant herself specifically testified that she told Appellee about
the original charges. Thus, she cannot now claim that the trial court erred in
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considering the impact of that knowledge on the reasonableness of Appellee’s
fear. Regardless, based on the foregoing, it is apparent that the testimony
from Appellee’s wife regarding the prior incident was not considered by the
court following Appellant’s objection. Therefore, no relief is due on this claim.
Finally, Appellant argues that the trial court erred by allowing
Appellee’s witnesses to testify by video. See Appellant’s brief at 45-46.
According to Appellant, she “was extremely concerned about the ability of
witnesses testifying by video to be coached or review notes regarding their
testimony.” Id. at 45. Since Appellee’s wife initially had notes when she took
the stand and one video witness attempted to use notes, Appellant averred
that “it is reasonable to conclude that the other witnesses in this matter who
were permitted to testify by video had access to notes during their testimony
or had been otherwise coached.” Id. at 45-46.
By way of background, three witnesses testified by video at the hearing:
Appellee’s sister, Appellee’s daughter, and Appellee’s sister-in-law. Prior to
the hearing, Appellee asked the court’s permission for these witnesses to
appear by alternative means. Appellant avers in her brief that she “served a
response to this request asking that the same be denied.” Id. at 45.
However, no such objection appears in the certified record. Moreover, the
court’s order granting the motion contains no reference to any such objection.
Nonetheless, at the hearing, Appellant purported to renew her general
objection to any witness being permitted to testify by video. Id. at 2. In
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response, the court noted that it preferred not to use video testimony and if
there were “problems, then either party can move for a continuance until we
can get them here live and in person, and if they can’t show up, then obviously
they can’t testify.” Id. at 5. Appellant’s counsel stated that she understood
the court’s position. Id. In terms of a specific objection, counsel stated that
“I just – I have a demonstrative as it relates to [Appellee’s] daughter . . .
which she may or may not be able to interact because she’s via video[.]” Id.
The court agreed to revisit the objection if there were any issues with the
demonstrative exhibit. Id.
Appellant did not request a continuance for the individuals to appear in
person. Critically, it was not until the testimony of Appellee’s sister who, when
answering a question about when she received an email from “Amanda Gill”
appeared to be using notes, that counsel objected and observed offhand that
“reviewing notes” was “part of the reason why I was concerned about the
witnesses testifying via video.” Id. at 100. The objection was sustained and
Appellee’s sister was reminded not to use notes. Id. Next, Appellee’s
daughter testified by video without incident and without objection concerning
the possibility of note-reviewing. See id. at 103-08. Finally, Appellee’s sister-
in-law testified, but the trial court discontinued her testimony due to poor
audio and video quality. See id. at 111-12. As to Appellant’s complaint about
Appellee’s wife having notes during her testimony, the court advised her
before she took the stand that she could have the notes with her but could
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not look at them unless directed to do so. Id. at 23. There is no indication
in the record that Appellee’s wife disregarded those instructions.
Based on the foregoing, it does not appear that Appellant lodged a
timely and specific objection to the witnesses being allowed to testify by video
based upon their access to notes or potential to be coached. It is axiomatic
that in order to preserve an issue for appeal, an appellant must make a timely
and specific objection on the record. See Hassel v. Franzi, 207 A.3d 939,
951 (Pa.Super. 2019). Failure to do so will result in waiver. See id. Based
on the foregoing, Appellant has waived this claim. Even if not waived, we
discern no abuse of discretion on the trial court’s part in permitting the
witnesses to testify by video.
In sum, Appellant has not presented any issues to this Court that
warrant relief. Accordingly, we affirm the final PFA order entered against
Appellant.
Order affirmed.
Judge Kunselman joins this Memorandum.
Judge Sullivan files a Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/20/2023
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