Commonwealth v. Schafkopf

270 A.3d 1147 (Table)

COMMONWEALTH of Pennsylvania

v.Jared Adam SCHAFKOPF, Appellant

No. 108 WDA 2021

Superior Court of Pennsylvania.

Filed: December 17, 2021

Reargument Denied February 25, 2022

MEMORANDUM BY OLSON, J.

Appellant, Jared Adam Schafkopf, appeals from his judgment of sentence entered on October 9, 2020, as made final by the trial court's denial of his post-sentence motion. We affirm.

The trial court summarized the facts of this case as follows:

The events leading to [Appellant's] conviction occurred on February 27, 2019, when the Indiana University of Pennsylvania (IUP) Police Department was contacted about a student who was [videotaping] his professor, Dr. Rachell Bouchat, at Stright Hall, a building on the IUP campus. According to Dr. Bouchat, [Appellant] had contacted her via email in December 2018, asking to see his final exam. Dr. Bouchat invited [Appellant] to stop at her on[-]campus office the following week or during office hours when the next semester started. [Appellant] did not elect to visit Dr. Bouchat until February 27, 2019, and during their meeting, [Appellant] indicated his belief that he had been graded unfairly due to political differences between himself and Dr. Bouchat. At some point during the meeting, [Appellant] informed Dr. Bouchat that he was recording her, to which she responded that she did not give him permission to do that and told him to leave her office. Dr. Bouchat testified that she was so shaken by the confrontation that she had to cancel the next class she was scheduled to teach.

Prior to entering Stright Hall, [Appellant] began recording the video, indicating that he was going to confront Dr. Bouchat. According to [Appellant], the purpose for making the video was because he believed she had treated him poorly in class in the way she spoke to him and "targeted" him. [Appellant] admitted that once he informed Dr. Bouchat that he was recording her she told him he did not have permission, but he continued to record. Following the confrontation, [Appellant] proceeded to record a monologue about the situation. After the IUP Police were called, [Appellant] was told to leave the premises and the video was later seized pursuant to a warrant. Charges against [Appellant] were filed on May 6, 2019.

In July 2020, Dr. Bouchat became aware of an article in The College Fix that portrayed [Appellant] as a victim of persecution due to his political differences with her. As a result, Dr. Bouchat began receiving threatening messages via email and social media with more articles, posts, and videos to follow. Dr. Bouchat's home address was also shared, which led to harassment there, causing her to become fearful for her safety in her own home. According to Dr. Bouchat, [Appellant] continued to seek attention due to his case, and even after the trial, she suffers ongoing defamation and fears for her safety.

Trial Court Opinion, 12/21/20, at 1-3 (citation to transcript omitted).

Appellant proceeded in a non-jury trial on August 18, 2020 and was subsequently convicted of one count of unlawful interception of a communication,¹ graded as a felony of the third degree. See Trial Court Opinion, 12/21/20, at 1.

The trial court held a sentencing hearing on October 9, 2020. At sentencing, Dr. Bouchat provided a victim impact statement. After explaining her feelings during the incident, she further explained the impact of Appellant's continued and connected actions. See. N.T. Sentencing Hearing, 10/9/20, at 3-7. She explained that an online news article in The College Fix painted Appellant as "the conservative victim of persecution by a liberal professor" which demonstrated that even without specifically posting the recording of Dr. Bouchat, Appellant "was seeking the spotlight to spread lies that were a threat to my professional and personal life as well as my safety." Id. at 4. Dr. Bouchat began receiving threats through social media and her university email. In the following weeks there were "more news articles, posts, tweets, TikTok videos, a GoFundMe page" and even national recognition through the Mark Levin Show from Fox News. Id. at 4-5. Appellant personally created a GoFundMe page, two TikTok videos, and requested to appear on The Mark Levin Show. Id. at 5. Dr. Bouchat stated she continues to be a target for news stories on conservative websites that tag her name "always in bold or red font often with the word convicted" as a result of the "lie that [Appellant] fabricated to elevate himself in conservative circles." Id. at 6. Dr. Bouchat testified that her wish was for "all of this to stop," and a no-contact provision where Appellant could not contact her or "continue to spread his false narrative" because "people such as [Appellant] wield the internet as a weapon to ruin the lives of individuals like me." Id. at 7.

After Dr. Bouchat provided her victim impact statement, the trial court explained its reasons for the sentence it imposed, including the conditions of probation the court attached. The trial court reviewed Appellant's presentence investigation (PSI) report, the victim's statements and submissions, the facts of the case as proven at trial, the sentencing memorandum provided by defense counsel, and the sentencing guidelines which reflected Appellant's prior record score of zero and offense gravity score of five. N.T. Sentencing Hearing, 10/9/20, at 8. The trial court reasoned:

I have determined that a sentence in the standard range is appropriate. It is clear that you have shown little or no remorse for your actions and you have continued to [bully] the victim in internet posts. Because of your actions[,] the victim is subject to abuse and bullying. Because of you, the victim has suffered extreme emotional distress[,] which has caused her to be fearful in her home. Most of the posts that you make are for your own benefit to attract attention to yourself. I am therefore as part of the order sentence, I am going to require that you not post or cause others to post any information or statements about the victim on the internet or any other social media platform. ... In addition, in arriving at this sentence I have considered your age and your immaturity. And while you have no mental health diagnosis, your inability to show empathy for the victim and to take responsibility for your actions[,] I do feel that you do have some mental health issues that you need to address because you are making decisions that are causing people to suffer as in this case and also are jeopardizing your own freedom and your future.

Id. at 9-10. The trial court further explained:

And you know, this is a difficult case. I have a victim here who has been extremely traumatized, who has had her life turned upside down by what you've done here. And standing in front of me is an intelligent young man with no prior criminal record and it is a difficult case for me. I considered putting you in jail ... for [48] hours just so you could see how it is. And I have considered lengthy probation which I think is appropriate here because we are going to have to keep tabs on you to protect the victim here and protect society. And I am going to order that you not post anything about Dr. Bouchat at all, have any contact with her, to the extent you can remove what you posted[,] I want that done. And because if you do anything to harass or affect this lady going forward, I am going to put you in jail.

Id. at 12. The trial court reiterated the importance that Appellant cannot post anything about Dr. Bouchat or encourage others to do so. Id. at 13.

Thus, the trial court sentenced Appellant to, inter alia , a seven-year period of probation with special conditions. See Trial Court Order, 10/9/21. One of these special conditions prohibited Appellant from "post[ing] or caus[ing] to be posted any information or comments about the victim [Dr. Rachelle Bouchat] on the internet or any other social media site, and to the extent possible, he shall delete any existing posts." Id. The trial court held a hearing on Appellant's post-sentence motions on December 18, 2020, and thereafter denied the substance of such motions on December 21, 2020. See Trial Court Opinion, 12/21/20, at 1. This timely appeal followed.²

Appellant raises the following issues:

1. Whether the evidence was insufficient as a matter of law to sustain a conviction for the unlawful interception of a communication under [ 18 Pa.C.S.A.] § 5703(1) ?

2. Whether the verdict was against the weight of the evidence?

3. Whether the [trial c]ourt abused its discretion in imposing special conditions of probation that [Appellant] "shall not post or cause to be posted any information or comments about the victim on the internet or any other social media site, and to the extent possible, he shall delete any existing posts" as these conditions violated the Appellant's rights to free expression pursuant to the First and Fourteenth Amendment to the United States Constitution and Article 1, Section 7 of the Constitution of the Commonwealth, were not consistent with his rehabilitative needs[,] and otherwise exceeded the permissible conditions of probation?

Appellant's Brief at 7-8.

In Appellant's first issue, he raises a sufficiency of the evidence challenge, arguing that "[t]he evidence failed to show that what the Appellant recorded was an ‘oral communication’ as that term is defined by § 5702 of the Crimes Code [, 18 Pa.C.S.A. § 5702 ]." Id. at 19. "Because evidentiary sufficiency is a question of law, our standard of review is de novo and our scope of review is plenary." Commonwealth v. Diamond , 83 A.3d 119, 126 (Pa. 2013). Moreover:

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 [this] test, we may not weigh the evidence and substitute our judgment for

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