J-A18010-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JARED ADAM SCHAFKOPF 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 108 WDA 2021

Appeal from the Judgment of Sentence Entered October 9, 2020

In the Court of Common Pleas of Indiana County Criminal Division at 

No(s): CP-32-CR-0000559-2019

BEFORE: OLSON, J., NICHOLS, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED: DECEMBER 17, 2021

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. 
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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 

____________________________________________

1 18 Pa.C.S.A. § 5703(1).
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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 
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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. 
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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 

____________________________________________

2 Appellant filed a notice of appeal on January 11, 2021. Thereafter, Appellant 

timely filed a concise statement of errors complained of on appeal pursuant 

to Pa.R.A.P. 1925(b). On February 17, 2021, the trial court issued its Rule 

1925(a) opinion wherein it incorporated its December 21, 2020 opinion. See

Trial Court Opinion, 2/17/21. 
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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 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 proof or proving every element of the 

crime beyond a reasonable doubt by means of wholly 

circumstantial evidence. Moreover, in applying [this] test, the 

entire record must be evaluated and all the 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.
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Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa. Super. 2004) 

(citation omitted), appeal denied, 862 A.2d 1254 (Pa. 2004); see also 

Commonwealth v. Brown, 52 A.3d 1139, 1163 (Pa. 2012) (stating that, in 

reviewing a claim of insufficient evidence, “the relevant question is whether, 

after viewing the evidence in the light most favorable to the prosecution, any

rational trier[-]of[-]fact could have found the essential elements of the crime 

beyond a reasonable doubt”) (emphasis in original). 

Appellant was convicted under the Wiretapping and Electronic 

Surveillance Control Act (the “Wiretap Act”), 18 Pa.C.S.A. §§ 5701-5782. 

Under § 5703, “a person is guilty of a felony of the third degree if he 

intentionally intercepts, endeavors to intercept, or procures any other person 

to intercept or endeavor to intercept any wire, electronic or oral 

communication.” 18 Pa.C.S.A. § 5703(1). The statute further defines an oral 

communication as: “any oral communication uttered by a person possessing 

an expectation that such communication is not subject to interception under 

circumstances justifying such expectation.” 18 Pa.C.S.A. § 5702. Our 

Supreme Court explained:

[T]he proper inquiries are whether the speaker had a specific 

expectation that the contents of the discussion would not be 

intercepted, and whether that expectation was justifiable under 

the existing circumstances. In determining whether the 

expectation of non-interception was justified under the 

circumstances of a particular case, it is necessary for a reviewing 

court to examine the expectation in accordance with the principles 

surrounding the right to privacy, for one cannot have an 

expectation of non-interception absent a finding of a reasonable 

expectation of privacy. To determine the existence of an 
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expectation of privacy in one’s activities, a reviewing court must 

first examine whether the person exhibited an expectation of 

privacy; and second, whether that expectation is one that society 

is prepared to recognize as reasonable.

Agnew v. Dupler, 717 A.2d 519, 523 (Pa. 1998). We employ a totality of 

the circumstances approach when examining the legitimacy and

reasonableness of a speaker’s expectation of privacy. Commonwealth v. 

Prisk, 13 A.3d 526, 531 (Pa. Super. 2011), quoting Commonwealth v. 

Moore, 928 A.2d 1092, 1098 (Pa. Super. 2007). 

Appellant specifically claims there was insufficient evidence to show the 

circumstances of his offense fell within the definition of “oral communication.” 

He argues that a speaker voluntarily disclosing information has no 

presumptive expectation of privacy in locations other than in the speaker’s 

home. Appellant’s Brief at 27-28. Appellant bolsters this argument by noting 

that the subject matter and confrontational nature of this exchange disbands 

any notion of privacy. Id. at 29. Appellant further contends that Dr. Bouchat’s 

expectation of privacy was not reasonable given that the recorded 

conversation happened in a business office with the door open, and that at 

some point Dr. Bouchat spoke in an elevated voice that was overheard by a 

student in the hallway. Id. at 31-34. In sum, Appellant claims that the trial 

court “fail[ed] to analyze any relevant factors critical to this analysis[.]” Id.

at 38.

Conversely, the trial court explained “the subject matter discussed is 

not the focus of the [c]ourt’s inquiry,” but rather the issue is “whether under 
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the circumstances, Dr. Bouchat had a reasonable expectation of privacy in her 

office which was violated by [Appellant’s] surreptitious recording.” Trial Court 

Opinion, 12/21/20, at 5. The trial court noted that “[a]lthough presumably 

anyone could wander into Stright Hall during normal business hours, a 

professor’s private office isn’t publicly accessible in the same way the entrance 

to the building is.” Id. The trial court rejected Appellant’s arguments as 

misreading the relevant caselaw and misunderstanding the full circumstances 

of the case at hand. See id. at 6-7 (“Appellant misread caselaw on 

expectations of privacy in the workplace and examining open door[s] and 

raised voices in context with other [facts,] including the physical positions of 

the parties and limited portion of the exchange overheard”).

For over 50 years, courts have recognized a reasonable expectation of 

privacy in one’s office or workplace. See Mancusi v. DeForte, 392 U.S. 364, 

469 (1968). This expectation, however, may be reduced by other factors 

elicited by evidence on a case-by-case basis. See, e.g., O’Connor v. Ortega, 

480 U.S. 709, 717 (1987) (public employees have reasonable expectation of 

privacy in their workplace that may be reduced by actual office practices and 

procedures). In the context of a shared space, “[t]he crucial distinction 

between protected and unprotected areas, [ ] is whether an unrelated person 

has unfettered access to the area” and whether an individual “has the ability 

and right to exclude others from entrance[.]” Commonwealth v. Reed, 851 

A.2d 958, 961-962 (Pa. Super. 2004); accord Commonwealth v. Curtin, 
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628 A.2d 1132, 1139 (Pa. Super. 1993) (unlike offices, a reception area is 

unprotected because it “is used for purposes of greeting and screening those 

who enter an office” and the “public and office workers are allowed to walk 

freely into a reception area”). 

Here, to determine whether there was an oral communication as defined 

under the Wiretap Act, we consider whether Dr. Bouchat harbored a subjective 

expectation of privacy and whether her expectation was one that society 

would recognize as objectively reasonable. Agnew, supra. It is uncontested 

that Dr. Bouchat had a subjective expectation of privacy. See Appellant’s 

Brief at 36 and 38 (acknowledging Dr. Bouchat’s subjective expectations). 

Rather, the focus of our analysis centers upon whether her expectation was 

objectively reasonable under the totality of the circumstances. Prisk, supra.

For purposes of our review, we briefly recount the relevant 

circumstances of the incident. Appellant emailed Dr. Bouchat to request a 

meeting for the sole purpose of discussing his final grade. N.T. Non-Jury Trial, 

8/18/20, at 17, 55. Prior to the meeting, Appellant purposely declined to 

notify Dr. Bouchat that his true intent was to confront her about her perceived 

bias against him. Id. at 55.3 Appellant began his video outside of Stright Hall 

by explaining what he planned to do and that he intentionally hid the camera 

____________________________________________

3 Appellant testified, “[i]n the past I tried to talk to her [about the alleged 

discrimination,] and she just refused to talk to me. So, I did not [notify her] 

in the email prior to the meeting.” Id. at 55. 
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in his backpack before he walked into Stright Hall. See Commonwealth Exhibit 

One (hereinafter “Videotape”).

Dr. Bouchat was the sole occupant of her office and she possessed a key 

to lock it when she was not present. Appellant entered Dr. Bouchat’s office

and asked to see his final exam. See Commonwealth Exhibit One (hereinafter 

“Videotape”). At that time, the door to Dr. Bouchat’s office remained open 

and Appellant positioned himself between her and the doorway. No others 

were present within the office. Individuals in the hallway outside Dr. Bouchat’s 

office could not understand the conversation between Appellant and Dr. 

Bouchat when it commenced. Eventually, however, Appellant revealed his 

surreptitious recording and accused Dr. Bouchat of treating him unfairly 

because his political beliefs differed from hers. Id.; N.T. Non-Jury Trial, 

8/18/20, at 19. When she learned that Appellant was recording the 

encounter, Dr. Bouchat raised her voice, expressed her non-consent to the 

videotape recording, and immediately asked Appellant to leave her office. 

Appellant, however, continued to record. Id. at 19, 59. No one outside Dr. 

Bouchat’s office understood the parties’ conversation until Dr. Bouchat raised 

her voice and asked Appellant to depart from her office. See id. at 36 

(defense witness Eric Seidel testifying that the words he overheard were “get 

out; get out”).

Based upon the aforementioned circumstances, we conclude that 

sufficient evidence allowed the trial court, as fact-finder, to find that Dr. 
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Bouchat possessed an objectively reasonable expectation of privacy and 

non-interception during a private office conversation with a student ostensibly 

intended to review the student’s class performance and final grade. The 

evidence demonstrated that the exchange between the parties occurred within 

Dr. Bouchat’s private office where she maintained the authority to exclude 

others.4 The only individuals within the office during the communication were 

Appellant and Dr. Bouchat. See Trial Court Opinion, 12/21/20, at 6. Prior to 

entering the office, Appellant concealed his recording equipment to facilitate 

his plan to surreptitiously capture a recording of Dr. Bouchat “answer[ing] for 

something before he even entered the building to go to her office.” N.T. 

Non-Jury Trial, 8/18/20, at 66 (trial court articulating its findings of fact). No 

one overheard the parties’ in-office conversation until Appellant revealed his 

recording activities and caused Dr. Bouchat to elevate her voice when asking 

Appellant to leave. Thus, despite an open door and limited third-party 

disclosure, the facts depict a private office meeting between a teacher and a 

student to which a reasonable expectation of privacy would extend.

____________________________________________

4 Appellant’s own actions belie his arguments to the contrary. Appellant 

scheduled a meeting with Dr. Bouchat to ensure he could meet with her at the 

office. Moreover, Appellant temporarily complied when Dr. Bouchat’s directed 

him to leave. See Videotape. Therefore, viewed in the light most favorable 

to the Commonwealth, Appellant’s own actions demonstrate his belief that this 

was Dr. Bouchat’s private office rather than a public office “in a public building” 

that is “open to the public at any time.” See Appellant’s Brief at 24. 
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Appellant cites the presence of third parties who overheard parts of his 

exchange with Dr. Bouchat and an open door to suggest that no reasonable 

expectation of privacy could exist in this case. This position is unavailing and 

runs counter to the applicable standard, which focuses on the totality of the 

circumstances. It is the circumstances that exist when an exchange 

commences which are most relevant to the objective expectations of privacy 

and non-interception. See Commonwealth v. Parrella, 610 A.2d 1006, 

1011 (Pa. Super. 1992) (a speaker does not lose his or her reasonable 

expectation of privacy when the interception commenced prior to that 

speaker’s actions). At the time of the interception, Appellant led Dr. Bouchat 

to believe he was in her private office to discuss his final grade, not to discuss 

her alleged bias against him. It was not until after the interception 

commenced that Appellant revealed the true purpose for his visit and the fact 

that he was capturing the encounter on videotape. These revelations caused 

Dr. Bouchat to raise her voice, which then allowed individuals in the hallway 

outside her office to hear parts of the ongoing exchange. Under these 

circumstances, the trial court rightfully emphasized the stated purpose for the 

parties’ meeting, not the circumstances – previously unbeknownst to Dr. 

Bouchat - that emerged after the commencement of the recording, when 

measuring the objective reasonableness of Dr. Bouchat’s expectation of 

privacy and non-interception.
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Moreover, Appellant’s emphasis on the open door of Dr. Bouchat’s 

private office is unpersuasive. While important to consider in the totality of 

the circumstances, an isolated feature of a physical layout such as an open 

door is not, in and of itself, dispositive. See Commonwealth v. Myers, 676 

A.2d 662 (Pa. Super. 1996) (reasonable expectation of privacy existed despite 

open door because communication was between childhood friends in remote

area); Commonwealth v. Henlen, 564 A.2d 905 (Pa. 1989); 

Commonwealth v. Dewar, 674 A.2d 714, 718-719 (Pa. Super. 1996). Here, 

the totality of the circumstances demonstrated a private office setting to which 

a reasonable expectation of privacy extended, notwithstanding the presence 

of an open door. Hence, Appellant’s sufficiency challenge merits no relief.

Appellant next claims that the verdict was against the weight of the 

evidence. In an argument identical to his sufficiency claim, Appellant contends 

that the trial court “gives little or no consideration to the objective factors 

which clearly undercut the notion that [Appellant] committed a felony by 

recording this confrontation.” Appellant’s Brief at 39. In Appellant’s view, the 

trial court improperly “relies primarily on its sympathetic views of the 

subjective reaction of the professor, a matter irrelevant to the ultimate 

determination.” Id. at 39-40. 

Our standard of review of a weight of the evidence claim is well-settled.

Appellate review of a weight claim is a review of the exercise of 

discretion, not of the underlying question of whether the verdict 

is against the weight of the evidence. Because the trial judge has 

had the opportunity to hear and see the evidence presented, an 
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appellate court will give the gravest consideration to the findings 

and reasons advanced by the trial judge when reviewing a trial 

court's determination that the verdict is against the weight of the 

evidence. One of the least assailable reasons for granting or 

denying a new trial is the lower court's conviction that the verdict 

was or was not against the weight of the evidence and that a new 

trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (quotation, citation, 

and emphasis omitted). Moreover,

[t]he weight of the evidence is exclusively for the finder of fact 

who is free to believe all, part, or none of the evidence and to 

determine the credibility of the witnesses. An appellate court 

cannot substitute its judgment for that of the finder of fact. Thus, 

we may only reverse the lower court's verdict if it is so contrary 

to the evidence as to shock one's sense of justice. 

Commonwealth v. Morgan, 913 A.2s 906, 909 (Pa. Super. 2006) (internal 

citations omitted). Stated otherwise, an appellant may prevail on a weight of 

the evidence claim only where “the award of a new trial is imperative so that 

right may be given another opportunity to prevail.” Commonwealth v. 

Morales, 91 A.3d 80, 91 (Pa. 2014) (quotation and citation omitted). 

Based upon our review of the record and our analysis above pertaining 

to the sufficiency of the evidence, we find that Appellant’s convictions do not 

shock one’s sense of justice. Bohlen, supra. In denying Appellant’s weight 

of the evidence claim, the trial court noted Appellant’s concession that the 

facts and credibility determinations are not at issue, thus Appellant’s weight 

argument “merely reframes his prior argument on the sufficiency of the 

evidence” which the court determined was meritless. Trial Court Opinion, 

12/21/20, at 9-10. While Appellant argues that the isolated factors of an open 
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door and bystanders overhearing a limited and irrelevant portion of the 

conversation are of such greater significance as to outweigh all other 

circumstances and entitle him to a new trial, we find these two factors, 

amongst other circumstances of this case, are not of such an imperative 

nature in and of themselves as to require a new trial “so that right may be 

given another opportunity to prevail.” Morales, supra. The trial court, sitting 

as fact-finder, was free to believe all, part, or none of the evidence. This Court 

may not step into the shoes of the trial judge to reweigh the evidence in a 

light more favorable to Appellant. Commonwealth v. Clay, 64 A.3d 1049, 

1056 (Pa. 2013). As the trial court’s well-reasoned determination enjoys 

record support, we conclude that it did not abuse its discretion. 

In his final claim, Appellant takes issue with the trial court’s decision to 

impose certain special conditions of probation which restricted his internet 

activities. Appellant’s final claim, therefore, implicates the discretionary 

aspects of sentencing. See Commonwealth v. Fenton, 750 A.2d 863, 867 

n.4 (Pa. Super. 2000) (a challenge to conditions of probation implicates the 

discretionary aspects of sentencing) (citation omitted).

When an appellant challenges the discretionary aspects of a sentence, 

the right to appeal is not absolute. Commonwealth v. Dunphy, 20 A.3d 

1215, 1220 (Pa. Super. 2011). Instead, the appellant must petition this Court 

for review. See 42 Pa.C.S.A. § 9781(b). An appellant challenging the 
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discretionary aspects of his sentence must invoke this Court’s jurisdiction by 

satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, see

Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, 

Pa.R.A.P. 2119(f); and (4) whether there is a substantial question 

that the sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013) (internal 

case citations omitted). An appellate court will not review the merits of an 

appeal unless the appellant meets all four criteria. Commonwealth v. 

Luketic, 162 A.3d 1149, 1159-1160 (Pa. Super. 2017) (“Only if the appeal 

satisfies these requirements may we proceed to decide the substantive merits 

of Appellant’s claim.”). 

Appellant filed a timely notice of appeal, properly preserved his claims, 

and filed an appropriate Rule 2119(f) statement in his brief. Appellant argues 

within his Rule 2119(f) statement that this appeal presents a substantial 

question because the conditions of probation impermissibly burden his First 

Amendment free speech rights, lack reasonable relation to his rehabilitative 

needs, and are otherwise inappropriate pursuant to 42 Pa.C.S.A. §§ 9754 and 

9763. Appellant’s Brief at 42-43.5 An argument that a condition of probation 

____________________________________________

5 To the extent that Appellant raised the substantial question that the 

conditions of probation are not consistent with his unique rehabilitative needs, 

(Footnote Continued Next Page)
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unduly restricts one’s freedom of speech raises a substantial question. See

Commonwealth v. Starr, 234 A.3d 755, 759-760 (Pa. Super. 2020);

Fenton, 750 A.2d at 867. Therefore, we shall proceed to the merits of his 

discretionary sentencing challenge.

We recently explained:

As a general matter, the sentencing court is charged to impose a 

sentence that is “consistent” with “the protection of the public, the 

gravity of the offense as it relates to the impact on the life of the 

victim and on the community, and the rehabilitative needs of the 

defendant.” 42 Pa.C.S.[A.] § 9721(b). Our standard of review in 

this context is well-established:

Sentencing is a matter vested in the sound discretion of the 

sentencing judge, and a sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this context, 

an abuse of discretion is not shown merely by an error in 

judgment. Rather, the appellant must establish, by reference 

to the record, that the sentencing court ignored or misapplied 

the law, exercised its judgment for reasons of partiality, 

prejudice, bias or ill will, or arrived at a manifestly 

unreasonable decision. 

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 

2006). “The rationale behind such broad discretion and the 

concomitantly deferential standard of appellate review is that the 

sentencing court is in the best position to determine the proper 

penalty for a particular offense based upon an evaluation of the 

individual circumstances before it.” Commonwealth v. Walls, 

926 A.2d 957 ([Pa.] 2007). In conducting our review, this Court 

must also “have regard” for: (1) the nature and circumstances of 

the offense and the history and characteristics of the defendant; 

(2) the opportunity of the sentencing court to observe the 

defendant, including any presentence investigation; (3) the 

findings upon which the sentence was based; and (4) the 

____________________________________________

he failed to develop this argument within his brief to this Court. Consequently, 

Appellant waived this issue. See Commonwealth v. Heggins, 809 A.2d 

908, 912 n.2 (Pa. Super. 2002) (“an issue identified on appeal but not 

developed in the appellant’s brief is abandoned and, therefore, waived.”).
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Pennsylvania Sentencing Guidelines. 42 Pa.C.S.[A.] 

§ 9781(d)(1)-(4).

With specific reference to probation conditions, the sentencing 

court is required to impose “reasonable conditions” that “it deems 

necessary to ensure or assist the defendant in leading a lawabiding life.” 42 Pa.C.S.[A.] § 9754(c). The scope and substance 

of probation conditions is governed by 42 Pa.C.S.[A.] § 9763(b), 

which provides a non-exhaustive list of potential conditions. 

Pursuant to a catchall provision in this statute, the sentencing 

court is generally empowered to impose probation conditions that 

require a defendant “to do things” that are “reasonably related to 

rehabilitation.” 42 Pa.C.S.[A.] § 9763(b)(15). This Court has 

interpreted this statutory rubric as follows:

A probation order is unique and individualized. It is constructed 

as an alternative to imprisonment and is designed to 

rehabilitate a criminal defendant while still preserving the 

rights of law-abiding citizens to be secure in their persons and 

property. When conditions are placed on probation orders they 

are formulated to insure or assist a defendant in leading a lawabiding life. Moreover, as long as conditions placed on 

probation are reasonable, it is within a trial court’s discretion 

to order them.

Commonwealth v. Hartman, 908 A.2d 316, 320 (Pa. Super. 

2006) (internal citations omitted). Thus, “[w]hile sentencing 

courts have discretion to impose conditions of probation, such 

conditions must be reasonable and devised to serve rehabilitative 

goals, such as recognition of wrongdoing, deterrence of future 

criminal conduct, and encouragement of law-abiding conduct.” 

Commonwealth v. Hall, 80 A.3d 1204, 1215 ([Pa.] 2013).

Commonwealth v. Carr, 2021 WL 3852320 at *5-*6 (Pa. Super. Aug. 30, 

2021) (parallel citation omitted). 

Appellant challenges his special conditions of probation as a violation of 

his free speech rights. Here, Appellant makes the blanket assertion that the 

conditions “compromise the core First Amendment freedoms [Appellant] 

enjoys” because they allegedly “extend to all speech.” Appellant’s Brief at 
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43-44 (emphasis in original).6 Appellant concedes, however, that narrowly 

tailored restrictions on speech for the protection of victims can be 

constitutional, so long as they do not apply to all speech by the defendant. 

Id. at 46.

In this case, the trial court contemplated a sentence of incarceration. 

See N.T. Sentencing Hearing, 10/9/20, at 12.7 Instead, it imposed a 

seven-year period of probation with special conditions including, inter alia,

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.” Trial Court Order, 

____________________________________________

6 Notably, all caselaw binding on this Court to which Appellant cites in support 

of his claim involve either broadly applicable statutes or civil injunctions. See,

e.g., Packingham v. North Carolina, 137 S.Ct. 1730 (2017) (striking down 

broad statute imposing automatic and complete restrictions on computer and 

internet access both during and after completion of sentence on entire class 

of people); Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971) 

(vacating broad civil injunction against organization that prohibited its 

members from leafletting or distributing literature of any kind within an entire 

city). This case involves neither. Rather, this case involves individualized 

conditions of probation imposed as part of a sentence after a specific individual 

was convicted of a crime for his conduct against a victim. See Starr, 234 

A.3d at 766 n.6 (appellant’s “sole reliance on Packingham would not 

necessarily warrant him relief” because the statute at issue in that case 

“differs from Appellant’s situation, insomuch as he is subject to probation 

supervision that is reviewed regularly”); Commonwealth v. Sperber, 177 

A.3d 212, 220-221 (Pa. Super. 2017) (Bowes, J., concurring) (suggesting that 

Packingham may not apply to a condition of probation restricting individual

internet access).

7 The standard range of the Sentencing Guidelines recommended punishments 

from restorative sanctions up to and including nine months of incarceration. 

See N.T. Sentencing Hearing, 10/9/20, at 8-9.
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10/9/20. This special condition is limited to the time period during which 

Appellant serves his criminal sentence. During that time, Appellant may

continue to speak out about unfair grading systems, political bias, or any other 

topic on the internet or social media so long as he does not include information 

about the victim in this case – Dr. Bouchat. Moreover, it does not limit 

Appellant from speaking about Dr. Bouchat in any other offline forum. For 

example, the trial court’s sentencing order does not preclude Appellant from 

engaging in expressive conduct regarding Dr. Bouchat through traditional 

pen-and-paper means, distributing literature, or public oration. Although the 

special condition directed Appellant “to the extent possible” to delete existing 

posts referencing Dr. Bouchat, the trial court did not prohibit Appellant from 

engaging in social media platforms or restrict his internet access as a whole. 

The sole restrictions imposed by the probation conditions here were (1) to 

refrain from posting about Dr. Bouchat on the internet for the duration of 

Appellant’s probation and (2) to delete his existing posts referencing Dr. 

Bouchat to the extent Appellant is reasonably able to do so. Id. In short, the 

challenged order did not impose a limitless ban on expressive activity but, 

instead, simply barred online speech discussing Dr. Bouchat and directed the 

retracting (if possible) of existing posts. 

Where a sentence, as here, is within the sentencing guidelines, we will 

only reverse the order where it is clearly unreasonable. Commonwealth v. 

Koren, 646 A.2d 1205, 1208 (Pa. Super. 1994). We remain mindful that “a 
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person placed on probation does not enjoy the full panoply of constitutional 

rights otherwise enjoyed by those who have not run afoul of the law. A 

[probationary] order with conditions placed on it will to some extent always 

restrict a person’s freedom.” Id. at 1209 (emphasis added). 

Similarly, we recognize that a person’s free speech rights are not 

absolute. Commonwealth v. Knox, 190 A.3d 1146, 1153-1154 (Pa. 2018). 

Rather, restrictions on speech are upheld “so long as they are designed to 

serve a substantial governmental interest and do not unreasonably limit 

alternative avenues of communication.” Friends of Danny DeVito v. Wolf, 

227 A.3d 872, 902 (Pa. 2020). In the context of a challenge to conditions of 

probation under § 9763(b)(15), restrictions on free speech will be deemed to 

validly serve the rehabilitative needs of the defendant if the facts of the case 

establish a reasonable nexus between the restriction imposed and the charged 

offense. Carr, 2021 WL 3852320 at *8-*9; Commonwealth v. Houtz, 982 

A.2d 537, 541 (Pa. Super. 2009); see also Starr, 234 A.3d at 763-764 (no 

abuse of discretion where trial court-imposed internet restriction as special 

condition of probation within an individualized assessment of what best served

the aims of rehabilitation and deterrence). While our own research has failed 

to uncover a test which governs the permissive scope of restrictions on 

expression within the context of a probationary order, we are guided by the 

analytical framework of United States v. O’Brien, where a restriction is 

deemed valid if:
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(1) it is within the constitutional power of the government; 

(2) it furthers an important or substantial government interest; 

(3) that governmental interest is unrelated to the suppression of 

free expression; and 

(4) the incidental restriction on alleged First Amendment freedoms 

is no greater than is essential to the furtherance of that interest.

United States v. O’Brien, 391 U.S. 367, 377 (1968); see S.B. v. S.S., 243 

A.3d 90 (Pa. 2020), cert. denied - - S.Ct. - - , 2021 WL 4509036 (Oct. 4, 

2021); Commonwealth v. Lambert, 147 A.3d 1221, 1229 (Pa. Super. 

2019). 

Under the first factor of O’Brien, a restriction must be within the 

constitutional power of the government to impose. Id. Clearly, it is within 

the power of a trial court judge to impose conditions of probation as part of a 

sentence. See 42 Pa.C.S.A. § 9721(a) (listing an order of probation as one 

of the available sentencing options); 42 Pa.C.S.A. § 9754(b) (“the court shall 

attach reasonable conditions . . . necessary to ensure or assist the defendant 

in leading a law-abiding life.”). This authority extends to special conditions of 

probation that reasonably restrict free speech rights. E.g., Fenton, 750 A.2d 

at 868. Therefore, in fashioning Appellant’s sentence, the trial court was 

authorized to impose an order of probation containing conditions of probation 

that reasonably restrict Appellant’s free speech rights.

Under the second and third factors of O’Brien, the restriction must 

further an important governmental interest unrelated to the suppression of 

free expression. O’Brien, supra. Conditions of probation validly serve 
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multiple important governmental interests, none of which are related to 

suppression of free expression. See 42 Pa.C.S.A. § 9754 (ensure or assist 

defendant in leading a law-abiding life); Carr, 2021 WL 3852320 at *5 

(protection of public, the offense’s impact on the victim and community, and 

rehabilitative needs of the defendant); Starr, 234 A.3d at 763 (rehabilitation 

and deterrence of criminal activity); Lambert, 147 A.3d at 1229 (cessation 

of abuse); Commonwealth v. Hartman, 908 A.2d 316, 321 (Pa. Super. 

2006) (protecting the public and preventing recidivism). 

Here, the trial court fashioned a probationary sentence with concomitant 

conditions designed to serve the aforementioned governmental interests. 

Unlike Houtz, where the record revealed “the absence of any facts” 

connecting the restriction imposed to a governmental interest, Houtz, 982 

A.2d at 541, the certified record in this case demonstrates a sufficient nexus 

that the restriction furthers the important governmental interests at stake. 

The evidence indicates that Appellant committed the crime for which he was 

sentenced with the intent of posting the video on the internet and social media 

for his own benefit and notoriety. See N.T. Sentencing Hearing, 10/9/20, at 

9. The record demonstrates that the trial court thoroughly examined the facts 

of this case in order to make an individualized assessment of what conditions 

of probation would best serve the rehabilitative needs of Appellant and 

protection of the victim and society. Id. at 8-12. After highlighting Appellant’s 

intent, immaturity, lack of remorse, and inability to take responsibility for the 
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considerable abuse his actions caused Dr. Bouchat, the trial court found that 

restricting Appellant’s ability to post about Dr. Bouchat on the internet and 

requiring the deletion of previous posts referencing her would protect Dr. 

Bouchat, protect society, and aid Appellant in taking responsibility for his 

actions. Id. at 12. These interests are unrelated to the suppression of free 

expression. O’Brien.

The last factor of the O’Brien test analyzes whether the restriction is 

“narrowly-tailored to advance the important governmental interest at stake ... 

while remaining silent as to other channels of communication available to [the 

a]ppellant.” Lambert, 147 A.3d at 1229. Our Supreme Court recently upheld 

an order which, as here, prohibited the appellants from referencing a specific 

person. See S.B. v. S.S., 243 A.3d 90 (Pa. 2020), cert. denied - - S.Ct. - -, 

2021 WL 4509036 (Oct. 4, 2021). The “gag order” restricted a mother and 

her counsel from speaking publicly or communicating about her custody case 

in forums “including, but not limited to, print and broadcast media, on-line or 

web-based communications,” or inviting, directing, or encouraging third 

parties to view or post the same. Id. at 97. Moreover, it directed the mother 

and counsel to remove any prior posts. Id. In upholding the gag order, our 

Supreme Court concluded: 

[W]hen read in context, the order affords [the a]ppellants ample 

opportunity to disseminate all of their thoughts into the 

marketplace of ideas without restriction on the content of their 

message. The gag order further allows [the a]ppellants to voice 

all of their opinions regarding issues important to them ... and to 

testify about these issues before governmental bodies in an effort 
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to remedy these vital societal concerns. The only limitation on 

[the a]ppellants’ speech lies in the manner of 

communication, as they are precluded from conveying such 

public speech in a way that exposes Child’s identity and subjects 

him to harm.

Id. at 107 (emphasis added). The Court noted that a restriction, while 

required to be narrowly-tailored, “need not be the least restrictive or least 

intrusive means of [achieving its permitted goal].” Id. at 105 n.12, quoting 

Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989). Consequently, 

the Court upheld the gag order’s restrictions on free speech as narrowly 

tailored to further the important government interest of preventing harm to 

the target of the gag order’s protection. Id. at 111.

Similarly, here, the conditions on Appellant’s probation are valid. The 

restrictions do not constitute a blanket prohibition on Appellant’s internet 

usage or expressive activity. Appellant is free to speak anywhere regarding 

topics important to him, as long as his online speech is not conveyed “in a 

way that exposes [Dr. Bouchat’s] identity and subjects [her] to harm.” See 

S.B., supra. Moreover, by its terms, Appellant is free to refer to Dr. Bouchat 

in public speech outside of the internet and social media platforms. See id.

at 111 (valid order left open “ample alternatives for communication”);

Lambert, 147 A.3d at 1229 (valid order remained “silent as to other channels 

of communication available); Fenton, 750 A.2d at 868 (valid order did not 

“bar appellant from expressing his views in an appropriate manner in the 

appropriate forum.”). Contrary to Appellant’s assertions, the conditions of 
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probation here were narrowly-tailored to serve his unique rehabilitative needs 

and to further the protections required under the facts of the present case. 

We discern no abuse of discretion in the imposition of Appellant’s special 

conditions of probation. Therefore, Appellant’s discretionary sentencing 

challenge is without merit. 

Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/17/2021