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[U] Commonwealth v. Noye

Superior Court of Pennsylvania

February 6, 2014

DARRYL C. M. NOYE, Appellant


Appeal from the Judgment of Sentence March 26, 2013 In the Court of Common Pleas of Centre County Criminal Division No(s).: CP-14-MD-0000550-2013




Appellant, Darryl C. M. Noye, appeals from the judgment of sentence entered in the Centre County Court of Common Pleas after the trial judge found him in indirect criminal contempt for violating a protection from abuse (PFA) order. Appellant claims that the evidence was insufficient to prove that he violated the PFA order by calling the complainant's telephone. We affirm.

On March 22, 2013, the complainant called 911 to report that she received a call from Appellant on her cellular phone, and the State College Police Department filed a complaint against Appellant for a violation of a PFA order. At the March 27, 2013 indirect criminal contempt hearing, the complainant testified that she recognized Appellant's voice on the phone when he said "[H]i, it's me[, ]" and that she immediately disconnected the call. N.T., 3/27/13, at 6. She testified that she and Appellant had been married for two years and that she was familiar with Appellant's voice. Id. at 6-7. The log for the complainant's phone indicated she received a call at 12:07 p.m. on the day in question, but the caller's identification was marked "private." Id. at 37.

Appellant testified in his defense and stated that he owned a cellular phone. Id. at 13. Over the objections of the Commonwealth, Appellant displayed his account information from his phone carrier's internet website and asserted that there was no record of him making a phone call to the complainant's phone. Id. at 15-19. He conceded that he used two telephone numbers, one of which was a "virtualized" number provided by an internet telephone service. Id. at 18. Appellant denied calling the complainant and testified that he was in a van with his father at the time the complainant was called. Id. at 21-22. He also denied blocking or having his number marked "private" to contact the complainant. Id. at 22. Appellant's father also testified that Appellant was in a van with him shortly after 12:00 p.m. on the day in question and that Appellant did not make any phone calls. Id. at 31.

The Commonwealth, in rebuttal, called Detective Deirdri Fishel to testify about the use of "phone apps, " "virtual private numbers, " "spoof cards, " and computers to avoid telephone logs. The detective stated a call using these services or mechanisms may be logged at a different time, register as a different phone number, or may not appear on a record. Id. at 35.

The trial court found Appellant in indirect criminal contempt and ordered him to serve twenty days' imprisonment, pay a fine of $600, and pay costs and fees. Appellant filed a timely notice of appeal and complied with the court's order to file a Pa.R.A.P. 1925(b) statement.

Appellant presents the following question for our review:

Whether the Commonwealth established by proof beyond a reasonable doubt that Appellant violated the [PFA] order?

Appellant's Brief at 5. Specifically, he asserts that the evidence was insufficient to prove he called the complainant because the complainant could not recall the date of the call, the call lasted only a few seconds, and he proffered evidence suggesting that he did not make the call. Id. at 9. We disagree.

When reviewing the sufficiency of the evidence sustaining a finding of indirect criminal contempt,

[t]he standard we apply . . . 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 defendant's guilt may be resolved by the fact-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 trier 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. Brumbaugh, 932 A.2d 108, 109-10 (Pa.Super. 2007) (citation omitted).

"[A] witness may testify to a person's identity from his voice alone." Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa.Super. 2008) (citations and internal quotation marks omitted). Moreover, "the weight to be accorded voice identification testimony is a question for the trier of fact." Id. (citations and internal quotation marks omitted).

Instantly, the complainant testified that she was familiar with Appellant's voice on the telephone after being married to him for two years. She identified Appellant as the voice during the call in question. Viewing the evidence in a light most favorable to the Commonwealth, such testimony alone was sufficient to prove that Appellant contacted the complainant. See id.; Brumbaugh, 932 A.2d at 109-10. Moreover, given the rebuttal evidence presented by the Commonwealth, it was well within the province of the trial court to reject Appellant's exculpatory evidence.[1] See Jones, 954 A.2d at 1197. Accordingly, Appellant's argument warrants no relief.

Judgment of sentence affirmed.

Judgment Entered.

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