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[U] Commonwealth v. Lee-Purvis

Superior Court of Pennsylvania

February 7, 2014



Appeal from the Judgment of Sentence entered December 20, 2012, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No(s): CP-51-CR-0004122-2012.




Mark Lee-Purvis ("Appellant") appeals from the judgment of sentence imposed after a jury convicted him of retaliation against a witness, intimidation of a witness, and terroristic threats.[1] We affirm.

The trial court summarized the pertinent facts as follows:

In late 2008, Tyrell Ginyard was arrested on charges of violating the Uniform Firearms Act. Shortly thereafter, he began providing information about several illegal gun sales he had made in 2004, including two to [Appellant], in order to mitigate his own exposure.
On September 5, 2011, shortly before the preliminary hearing in this matter, [Appellant] posted to his Facebook page an image of a rat with a ring around it and line through it that said "I hate rats" and "No rats allowed." The caption to the photo read "Tyrell Ginyard is a RAT . . . he frequents North Philly, lives in West Philly and is about to have a baby from a girl in South Philly (5th Street) . . . he tries to fit into everybody's set and engage in all types of illegal activity in hopes of making people think he's thorough . . . BEWARE . . . He'll even lie on you to cut himself a sweet deal . . . I got a two-page affidavit to prove it . . . ANYBODY who knows him should expose his bitch ass just like me and bring the rat outta hiding." The caption then contained a hyperlink to Tyrell Ginyard's [publically available] trial docket sheet and said "Here's a copy of his court dockett [sic] sheet . . . look at his charges and then look at the Nolle Prosed's [sic] . . . everything else is self-explanatory . . . if U don't understand it inbox me and i'll [sic] be happy to walk you through it . . . I'll have a pic of this crumb later . . . Thank You . . . that's my PSA for today."
Three days later, on September 8, 2011, [Appellant] posted a picture of Ginyard with the words "RAT BOY A/K/A TYRELL GINYARD" written across the picture and the word "RAT" made to look as if it was part of Ginyard's necklace. The caption to the picture read "I told yall [sic] I was gonna [sic] get a pic of this crumb . . . RAT_BOY!!!!!" Ginyard informed Special Agent [Martin] Dietz of these Facebook photos. On September 23, 2011, Special Agent Deitz prepared and served a search warrant on for information related to the user "MIZ ASSAPPA PURVIS AKA MARK-LEE PURVIS."
A search of [Appellant's] publically-available Facebook page revealed that on December 10, 201[1], [Appellant] posted a picture of a fist with the middle finger extended which said "FUCK YOU! FUCK HER TOO! Salute National Fuck You Day!!!!!! Which is EVERYDAY!!!!!" Below the picture, but still part of the image, it read, "this is a personal message from ME to the following 'Dickheads' . . . [names redacted for trial] Detective Martin Dietz, [names redacted] and Police Informant Tyrell Ginyard. Yall [sic] plan backfired assholes . . . now look who's laughing . . . Ha-Ha-Ha-Ha-Ha . . . The caption to the photo read "[i]f ya [sic] name ain't on this poster and it should be-don't think you dodged a bullet . . . i'll [sic] get around to you eventually."
Each of these items was posted to Facebook account number 100000261860316, a unique user account bearing the name "Miz Asappa Purvis" and containing several photographs of [Appellant] as well as other information, including business information and an email address, identifying [Appellant] as the person to whom the account corresponds.
[Appellant] initially evaded officers who attempted to arrest him at his home on March 10, 201[2], using the roof of an adjoining house to get away. He surrendered with his attorney shortly thereafter and was taken into custody on March 14, 201[2].

Trial Court Opinion, 3/25/13, at 2-4 (footnote and citations to notes of testimony omitted).[2]

On September 19, 2012, a jury convicted Appellant of the above charges. On December 20, 2012, the trial court sentenced Appellant to an aggregate term of five to ten years of imprisonment. Thereafter, the trial court denied Appellant's post-sentence motion. This appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant raises the following issues:
I. Did the [trial] court err by permitting Commonwealth witnesses to testify about their knowledge concerning the source of the statements in question and the ownership of the Facebook account on which the statements were made, which included:
a. testimony by Commonwealth witness Tyrell Ginyard concerning the source of the Facebook posts at issue;
b. testimony by Special Agent Martin Dietz concerning actions he took based on otherwise inadmissible information; and
c. testimony by Detective James Dougherty concerning the owner of the Facebook account at issue, where such evidence was inadmissible hearsay and not otherwise admissible as substantive evidence or for another purpose?
II. Was the evidence sufficient to support the verdicts where the statements at issue were not intimidating, retaliatory, or threatening in nature, but instead protected First Amendment speech?
III. Did the [trial] court err by admitting business records where they were not properly authenticated with live testimony?

Appellant's Brief at 8.

After careful review, we conclude that the Honorable Barbara A. McDermott has prepared a thorough and well-reasoned opinion that correctly disposes of each of Appellant's claims. In disposing of Appellant's first and third issues, Judge McDermott properly concludes that the Facebook posts at issue are not hearsay because they were not introduced for their truth, and that they were properly authenticated. See generally, Pa.R.E. 801(c) (defining hearsay as an out of court statement offered in evidence to prove the truth of the matter asserted); Pa.R.E. 902(11) (concerning self-authenticating documents). See also Commonwealth v. Koch, 39 A.3d 996, 1003 (Pa.Super. 2011), appeal granted, 44 A.3d 1147 (Pa. 2012) (explaining that electronic communications are admissible when there is an "adequate foundational showing of its relevance and authenticity").

Our review of the record also supports Judge McDermott's rejection of Appellant's sufficiency challenges. In doing so, Judge McDermott acknowledged the correct standard of review and each element of each crime for which the jury convicted Appellant. Compare Commonwealth v. Cox, 72 A.3d 719 (Pa.Super. 2013) (affirming a harassment conviction that was based upon a Facebook post about the victim).

We therefore adopt Judge McDermott's March 25, 2013 opinion as our own in disposing of the present appeal.

Judgment of sentence affirmed.

Judgment Entered.

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