J-A23036-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : KEVIN SOELLNER, : : Appellant : No. 1498 WDA 2013 Appeal from the Judgment of Sentence entered on August 1, 2013 in the Court of Common Pleas of Blair County, Criminal Division, No(s) CP-07-MD-0001074-2013; CP-07-MD-0001080-2013 BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 30, 2014 judgment of sentence imposed after he was convicted of two counts of indirect criminal contempt

We affirm.

antic relationship and have two children together.2 After the termination of their relationship, the trial court entered a PFA Order on March 7, 2013, prohibiting Soellner from having any contact with Shaw.3

23 Pa.C.S.A. § 6114(a).

Notably to this appeal, the first name of one of th an unusual spelling.

The PFA Order is not contained in the certified record.

J-A23036-14 According to Shaw, during two weeks in June 2013, she received

8/1/13, at 5-6. Shaw testified that she had reason to believe the text messages came from Soelln children, their wellbeing, and the relationship between the parties. Id. at 6- 7. Shaw emphasized that in some of the text messages, the sender used intained, is information that is only known by close family and friends. Id. at 6. Shaw believed that Soellner was sending her the text messages under a different telephone number by using a Id. at 7.

Based upon the no-contact provision in the PFA Order, Shaw reported the text messages to the Tyrone Police Department, and informed the police regarding her belief that Soellner was sending her the text messages via the TextMe app. Id. at 10. In

TextMe is an app that allows users to send free text messages to any phone number in the United States and various other countries. The TextMe website states that users who install the TextMe app must choose a separate telephone number to use with their TextMe account. See https://textme.zendesk.com/hc/en-us/articles/200503297-What-is-TextMe- (last visited Sept. 8, 2014).

-2- J-A23036-14 Complaint against Soellner charging him with two counts of ICC. Id. at 10, 20.5 Notably, the police never obtained a search warra phone or phone records,6 and the text messages themselves were not admitted into evidence at trial. However, the Affidavit of Probable Cause prepared by Officer Walk stated, inter alia, the following regarding the text messages: This officer made contact with [Shaw,] who showed this officer the messages. Some of the messages called Shaw names, some were talking about them being together. Examples of the messages inclu

care about them cause god knows [E.] loves being with me and should not hate someone that made a mistake and loves you

Criminal Complaint, 6/26/13, at 5 (Affidavit of Probable Cause).

On August 1, 2013, the matter proceeded to a non-jury trial before the

Prior to the filing of the charges against Soellner in the instant case, he pled guilty to two crimes involving Shaw, simple assault and ICC. See N.T., 8/1/13, at 48-50.

Officer Walk testified that she did not attempt to secure a search warrant because (1) it would have potentially taken weeks, and she was concerned the PFA Order; and (2) Soellner could have simply deleted the TextMe app from his phone and there would have been no record of the phone number that he had used with his TextMe account. See N.T., 8/1/13, at 23-24.

-3- J-A23036-14 Shaw described her text message response to one of the text messages she had received as follows: I asked [the sender of the text message] if it was him[, i.e., Soellner,] and I said if this is [Soellner,] our son E[.] is sick and I needed to know if he had been throwing up while he [E.] was with [Soellner] on Sunday[,] and he [the sender of the text message] said no[,] when I had E[.] he was fine[;] he had

N.T., 8/1/13, at 8. Shaw also testified that in another of the text messages, the sender Id. at 11.7 At the close of his case, Soellner moved to dismiss the charges, and

guilty of both counts of ICC, and sentenced him to serve an aggregate term of two months in jail. Soellner filed a Post-Sentence Motion, which the trial court denied. In response, Soellner timely filed a Notice of Appeal.

On appeal, Soellner presents the following issue for our review: lish -finder]

Shaw offered to read the actual language of the text messages into the record, but Judge Peoples declined to hear this evidence. Further, Soellner never challenged the lack of production of the actual text messages at trial.

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Brief for Appellant at 5.8 We apply the following standard of review when considering a challenge to the sufficiency of the evidence: The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a -finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Melvin, 2014 PA Super 181, at *83 (Pa. Super. 2014) (citation omitted).

Decree of court occurred outside the presence of the court. Where a PFA order is involved, an [ICC] charge is designed to seek punishment for Commonwealth v. Brumbaugh, 932 We observe that the Commonwealth did not file a responsive brief, nor did the trial court file a complete Pa.R.A.P. 1925(a) opinion, as Judge Peoples passed away shortly after trial.

-5- J-A23036-14 A.2d 108, 110 (Pa. Super. 2007) (citations and quotation marks omitted).

sufficiently definite, clear, and specific to the contemnor as to leave no doubt of the conduct prohibited; 2) the contemnor had notice of the order; 3) the act constituting the violation must have been volitional; and 4) the Commonwealth v. Walsh, 36 A.3d 613, 619 finding of [ICC], this court will not disturb its decision absent an abuse of Commonwealth v. Padilla, 885 A.2d 994, 997 (Pa. Super. 2005). Finally, in every criminal of the identity of the accused as the person who committed the crime is Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973).

Soellner argues that the evidence was insufficient to convict him of ICC, as the Commonwealth failed to prove beyond a reasonable doubt that he was the person who actually sent Shaw the text messages. See Brief for Appellant at 9.9 Soellner points out that Shaw did not recognize the telephone number from which the text messages originated, and that this unknown number had a Los Angeles, California area code. Id. at 11.

Soellner emphasizes that the police never obtained a search warrant for his phone or his phone records, and that the text messages were not introduced Soellner does not dispute that the PFA Order was sufficiently clear and that he had notice of it.

-6- J-A23036-14 into evidence at trial. Id. at 11-12. Soellner asserts that there was no evidence presented linking him to the text messages aside from the testimony of Shaw. Id. Soellner acknowledges that the sender of the text messages had referenced the na

Id. at 14. Finally, Soellner points out the trial testimony of his mother, Deb Weston, that she was the

receive messages from [] Shaw prior to the dates the[] [text] messages

could not purchase or download [an] app[] without her knowledge Id. at 13.

specifically to the identity of the sender of the text messages. The Commonwealth may sustain its burden of proving every element of ICC beyond a reasonable doubt by means of wholly circumstantial evidence, and we must view the evidence in the light most favorable to the Commonwealth. Walsh, 36 A.3d at 618-19; see also Commonwealth v. Koch, 39 A.3d 996, 1005 (Pa. Super. 2011) ircumstantial

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communications, is required to establish the authenticity of text messages, and holding that the Commonwealth failed to present any evidence linking the defendant to the incriminating text messages to establish their

received the text messages[, and t]here are no contextual clues in the [] text messages themselves tending to reveal the identity of the sender.

the sender of the text messages came from Shaw, who testified that the text messages contained contextual clues that Soellner was the sender. Shaw stated that the sender mentioned in some of the text messages the name of

N.T., 8/1/13, at 6. Shaw specifically described two text messages wherein the sender (1) mentioned having had custody of E. while he was ill; and (2) questioned the paternity Id. at 8, 11. Moreover, Shaw testified that

relationship between the parties, see id. at 6-7, topics of conversation that would be of little interest to anyone outside of a limited group of people who

er was the sender of the text messages; we may not substitute our credibility determination for that of

-8- J-A23036-14 the fact-finder. See Commonwealth v. Sanchez, 82 A.3d 943, 972 (Pa.

so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. See Melvin, supra. Accordingly, we conclude that, when viewed in the requisite light and drawing all reasonable inferences therefrom, the circumstantial identification evidence was sufficient beyond a reasonable doubt to convict Soellner of ICC.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary Date: 9/30/2014

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