J-S18019-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

ROBERT L. LONGO 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1812 MDA 2019

Appeal from the Judgment of Sentence Entered February 8, 2018

In the Court of Common Pleas of Snyder County

Criminal Division at No(s): CP-55-CR-0000404-2016

BEFORE: KUNSELMAN, J., KING, J., and STEVENS, P.J.E.*

MEMORANDUM BY KING, J.: FILED JUNE 23, 2020

Appellant, Robert L. Longo, appeals from the judgment of sentence 

entered in the Snyder County Court of Common Pleas, following his jury trial 

convictions for two counts of stalking and one count of witness intimidation.1 

We affirm. 

The relevant facts and procedural history of this appeal are as follows. 

Previously, [Appellant] had pled guilty to simple assault and 

terroristic threats, arising out of a January 2016 incident in 

which he physically assaulted his then-wife, Alicia [Durkin].

2

 

In March 2016, while he was in prison, [Appellant] sent two 

letters to Alicia, conveying threats to her and her family 

from other inmates, detailing physical abuses he had 

suffered in prison, and stating that he did not want a 

divorce. [Appellant] also asked Alicia to tell the District 

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* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 2709.1(a)(1), (2), and 4952(a)(2), respectively. 
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Attorney that she lied (presumably about the assault), and 

stated that he would let “them” kill him if she did not recant. 

2 [Appellant] and Alicia were married on October 2, 

2015. Alicia testified at trial that she and [Appellant] 

were married for approximately one year, but that 

they had been separated for most of that time. Their 

divorce was final at the time of trial. 

In September 2016, after [Appellant] was released from 

prison, and while he was under supervision, Alicia began 

receiving emails from “Anthony Falcone” with an email 

address of TJFalconeMafia1@gmail.com.3, 4 In the emails, 

“Anthony Falcone” threatened to kill [Appellant] if Alicia did 

not respond, or if she told the police about the threats, and 

indicated on several occasions that Alicia was being 

watched. The emails progressed to include threats to Alicia. 

In one email to Alicia, “Anthony Falcone” stated, “You want 

out of the family it’s going to have to be your life.” 

3 Alicia’s mother, Kathleen Durkin ..., also received 

emails from the TJFalconeMafia1@gmail.com account. 

4 At trial, Alicia testified that [Appellant] had 

previously led her to believe that his family was 

involved in the mafia, and that there had been 

incidents in which [Appellant] threatened her by 

telling her that his cousin Anthony would kill her 

family. Alicia also testified that she had asked 

[Appellant’s] father whether there was anyone in his 

family named Anthony, and his father replied that 

there was not. 

After receiving information that [Appellant] had violated a 

condition of supervision prohibiting threatening 

communications, Northumberland County Probation5 made 

contact with Appellant and conducted a search, during which 

two cell phones were recovered. 

5 [Appellant] had originally been placed under the 

supervision of Snyder County Probation. However, as 

[Appellant] was residing in Northumberland County, 

his supervision was transferred to Northumberland 

County Probation. 
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The cell phones were eventually turned over to the 

Selinsgrove Police Department, and the police applied for 

and obtained a search warrant to examine the contents of 

the phones. During the search, the police discovered that 

the TJFalconeMafia1@gmail.com account was set up on one 

of the cell phones. The police saw the messages that had 

been sent to Alicia, and confirmed that the emails that Alicia 

and [Kathleen] Durkin had received were sent from the 

account open on the cell phone. 

Following a jury trial, [Appellant] was convicted of two 

counts of stalking and one count of intimidation of a witness. 

On February 8, 2018, the trial court sentenced [Appellant]

to concurrent prison terms of 14 months to 5 years for the 

stalking charges, and a consecutive prison term of 16 

months to 7 years for the intimidation of a witness charge. 

The trial court also ordered [Appellant’s] sentence to be 

served consecutively to his Northumberland County 

sentence. 

Commonwealth v. Longo, No. 376 MDA 2018, unpublished memorandum 

at 1-3 (Pa.Super. filed December 12, 2018) (internal record citations omitted). 

On December 12, 2018, this Court affirmed Appellant’s judgment of 

sentence. Specifically, this Court determined that Appellant had waived all

issues due to a defective appellate brief. Appellant subsequently filed a 

petition for allowance of appeal, which the Pennsylvania Supreme Court 

denied on August 26, 2019. 

On September 17, 2019, Appellant timely filed a counseled petition 

pursuant to the Post Conviction Relief Act (“PCRA”).2 Among other things, 

Appellant’s petition argued that prior counsel was ineffective for submitting a 

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2 42 Pa.C.S.A. §§ 9541-9546. 
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defective appellate brief to the Superior Court. On October 24, 2019, the 

PCRA court reinstated Appellant’s direct appeal rights nunc pro tunc. 

Appellant timely filed a notice of appeal nunc pro tunc on October 31, 

2019. On November 1, 2019, the court ordered Appellant to file a Pa.R.A.P. 

1925(b) concise statement of errors complained of on appeal. Appellant 

timely filed his Rule 1925(b) statement on November 12, 2019.

Appellant now raises two issues for our review: 

WHETHER [APPELLANT] WAS DEPRIVED OF HIS 

CONSTITUTIONAL RIGHT TO A FAIR TRIAL BECAUSE THE 

PROSECUTION MADE PREJUDICIAL STATEMENTS TO THE 

JURY DURING CLOSING ARGUMENT WHICH IMPLIED THAT 

[APPELLANT] HAD THE BURDEN OF PROOF. 

WHETHER THE TRIAL COURT ERRED BY PERMITTING THE 

ADMISSION OF EMAILS THAT WERE NOT PROPERLY 

AUTHENTICATED. 

(Appellant’s Brief at 6). 

In his first issue, Appellant contends the prosecutor’s closing argument 

improperly implied that Appellant bore the burden of proof at trial. Appellant 

emphasizes the following comment from the prosecutor: “There’s no Anthony 

Falcone. [Appellant] had the opportunity to bring that guy here today but no, 

he’s not going to ....” (Appellant’s Brief at 12) (quoting N.T. Trial, 11/28/17, 

at 194-95). Appellant insists this comment misled the jury into thinking that 

Appellant had the burden of presenting “Anthony Falcone” as a witness, and 

Appellant failed to satisfy that burden. Appellant concludes the prosecutor’s 

closing argument violated his due process rights, and he is entitled to a new 
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trial. We disagree. 

As a prefatory matter, “the lack of a contemporaneous objection 

constitutes a waiver of any challenge to the prosecutor’s closing remarks.” 

Commonwealth v. Rivera, 603 Pa. 340, 370, 983 A.2d 1211, 1229 (2009), 

cert. denied, 560 U.S. 909, 130 S.Ct. 3282, 176 L.Ed.2d 1191 (2010). See 

also Pa.R.A.P. 302(a) (providing general rule that issues not raised in trial 

court are waived and cannot be raised for first time on appeal). Here, 

Appellant did not object to the prosecutor’s closing argument or seek any type 

of curative instruction.3 Consequently, Appellant’s claim is waived in this 

appeal. 

In his second issue, Appellant asserts a party seeking to admit evidence 

of electronic communications, such as emails, must properly authenticate the 

evidence before a court may admit it. Appellant argues the Commonwealth 

failed to properly authenticate the emails sent from the “Anthony Falcone” 

account to Alicia and Kathleen Durkin, because it did not present evidence to 

show that the emails were actually sent from the cell phone that police 

recovered from Appellant. Appellant relies on Commonwealth v. Koch, 39 

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3

In his counseled PCRA petition, Appellant conceded that trial counsel failed 

to object to the prosecutor’s closing argument, and Appellant requested PCRA 

relief on this basis. (See PCRA Petition, filed 9/17/19, at ¶ 21). The PCRA 

court, however, did not explicitly provide relief on this basis. (See Order, filed 

10/24/19, at 1). Moreover, the trial court also determined that Appellant had 

waived this claim, albeit due to an impermissibly vague Rule 1925(b) 

statement. (See Trial Court Opinion, filed November 20, 2019, at 2). 
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A.3d 996 (Pa.Super. 2011), for the proposition that a person’s physical 

proximity to a cell phone is not probative of whether that person authored 

electronic communications sent from that cell phone. Further, Appellant 

insists the Commonwealth failed to prove that he created the “TJFalcone” 

email account. Absent proper authentication of the emails at issue, Appellant 

concludes the trial court abused its discretion by admitting the emails into 

evidence. We disagree. 

This Court’s standard of review for issues regarding the admissibility of 

evidence is well settled: 

Questions concerning the admissibility of evidence are within the 

sound discretion of the trial court . . . [and] we will not reverse a 

trial court’s decision concerning admissibility of evidence absent 

an abuse of the trial court’s discretion. An abuse of discretion is 

not merely an error of judgment, but is rather the overriding or 

misapplication of the law, or the exercise of judgment that is 

manifestly unreasonable, or the result of bias, prejudice, ill-will or 

partiality, as shown by the evidence of record. [I]f in reaching a 

conclusion the trial court [overrides] or misapplies the law, 

discretion is then abused and it is the duty of the appellate court 

to correct the error. 

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa.Super. 2014), appeal 

denied, 632 Pa. 667, 117 A.3d 294 (2015) (internal citations and quotation 

marks omitted). 

“Relevance is the threshold for admissibility of evidence.” 

Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa.Super. 2015) (en banc), 

appeal denied, 633 Pa. 787, 128 A.3d 220 (2015). 

Evidence is relevant if it logically tends to establish a material fact 

in the case, tends to make a fact at issue more or less probable, 
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or tends to support a reasonable inference or proposition 

regarding a material fact. Relevant evidence may nevertheless be 

excluded if its probative value is outweighed by the danger of 

unfair prejudice, confusion of the issues, or misleading the jury, 

or by considerations of undue delay, waste of time, or needless 

presentation of cumulative evidence. 

Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa.Super. 2019), appeal 

denied, ___ Pa. ___, 219 A.3d 597 (2019) (internal quotation marks omitted). 

Pennsylvania Rule of Evidence 901 governs the authentication of 

evidence as follows: 

Rule 901. Authenticating or Identifying Evidence

(a) In General. Unless stipulated, to satisfy the 

requirement of authenticating or identifying an item of 

evidence, the proponent must produce evidence sufficient 

to support a finding that the item is what the proponent 

claims it is. 

(b) Examples. The following are examples only—not 

a complete list—of evidence that satisfies the requirement:

(1) Testimony of a Witness with Knowledge. 

Testimony that an item is what it is claimed to be. 

* * *

(4) Distinctive Characteristics and the Like. The 

appearance, contents, substance, internal patterns, or other 

distinctive characteristics of the item, taken together with 

all the circumstances. 

Pa.R.E. 901(a), (b)(1), (4).4 

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4 On May 20, 2020, the Pennsylvania Supreme Court announced the 

amendment of Rule 901(b) to include the following language: 
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“[E]-mails and text messages are documents and subject to the same 

requirements for authenticity as non-electronic documents generally.” Koch, 

supra at 1004. See also Danzey, supra at 337-38 (explaining Pennsylvania 

appellate courts have also considered authentication of computerized instant 

messages and communications made on Facebook and other social media 

platforms). 

A document may be authenticated by direct proof, such as 

the testimony of a witness who saw the author sign the 

document, acknowledgment of execution by the signer, 

admission of authenticity by an adverse party, or proof that 

the document or its signature is in the purported author’s 

handwriting. A document also may be authenticated by 

circumstantial evidence, a practice which is uniformly 

recognized as permissible. 

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(11) Digital Evidence. To connect digital evidence with 

a person or entity: 

(A) direct evidence such as testimony of a person 

with personal knowledge; or 

(B) circumstantial evidence such as: 

(i) identifying content; or 

(ii) proof of ownership, possession, 

control, or access to a device or account at the 

relevant time when corroborated by circumstances 

indicating authorship. 

In Re: Order Approving the Amendment of Pa. Rule of Evid. 901, No. 

841, Supreme Court Rules Docket (Pa. May 20, 2020) (effective Oct. 1, 2020) 

(per curiam). The amended comment explains that “Digital evidence” includes 

emails, and: “The proponent of digital evidence is not required to prove that 

no one else could be the author. Rather, the proponent must produce 

sufficient evidence to support a finding that a particular person or entity was 

the author.” Id. 
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* * *

[T]he difficulty that frequently arises in e-mail and text 

message cases is establishing authorship. Often more than 

one person uses an e-mail address and accounts can be 

accessed without permission. In the majority of courts to 

have considered the question, the mere fact that an e-mail 

bears a particular e-mail address is inadequate to 

authenticate the identity of the author; typically, courts 

demand additional evidence. 

Koch, supra at 1004 (internal citations and quotation marks omitted). 

Instantly, Alicia Durkin testified that Appellant had manipulated her with 

threats of violence during their marriage. (See N.T. Trial at 100). Specifically, 

Appellant claimed to have a cousin named “Anthony Falcone.” (Id.) Appellant 

insisted that Anthony was a member of the mafia, and Anthony would do harm 

to Alicia or her family if Alicia ever told anyone about Appellant’s misconduct. 

(Id.) 

Fearing that Anthony might harm her or her family, Alicia Durkin 

contacted Appellant’s father to ask whether Anthony actually existed. (Id. at 

101). Alicia’s mother, Kathleen Durkin, was present for Alicia’s conversation 

with Appellant’s father. (Id. at 53). Significantly, Appellant’s father denied 

that Appellant has a cousin named Anthony. (Id. at 53-54, 101). 

The Commonwealth also introduced several emails sent from the 

“TJFalcone” email account to Alicia and Kathleen Durkin. Alicia Durkin began 

receiving the emails on September 16, 2016, a few days after Appellant was 

released from jail. (Id. at 120, 140). Even though the emails came from the 
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“TJFalcone” account, Alicia Durkin testified that the content of the messages 

“looked like stuff [Appellant would] say” in prior letters he sent to her. (Id.

at 128, 137). Alicia Durkin also explained that Appellant had a penchant for 

creating alter egos to express different aspects of his personality and to 

further his ambition of becoming a professional wrestler. (Id. at 104-05). 

Additionally, Kathleen Durkin explained that Alicia Durkin began 

forwarding the emails to her. Kathleen Durkin would read the forwarded 

emails, because Alicia Durkin “didn’t want to look at them.” (Id. at 51). 

Kathleen Durkin immediately concluded that “Anthony Falcone” did not exist, 

as was apparent from the prior conversation with Appellant’s father. Kathleen 

Durkin posited that the emails from “Anthony Falcone” were authored by 

Appellant as a way “to make the fear factor stronger” for his prior threats to 

Alicia Durkin. (Id. at 145). 

Selinsgrove Police Officer Francis Petrovich testified that he obtained a 

warrant to examine the contents of the cell phones that the probation 

department recovered from Appellant. Officer Petrovich “did see the e-mail 

account set up on one of the phones back to this 

TJFalconeMafia1@gmail.com.” (Id. at 87). Officer Petrovich elaborated on 

his investigation during the following exchange on cross-examination: 

[COUNSEL]: Officer Petrovich, there [were] two phones, 

is that correct? 

[WITNESS]: Yes there was. 

[COUNSEL]: And which phone sent the e-mails? 
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[WITNESS]: I would have to recall back [sic] to my report. 

[COUNSEL]: But you can be able to tell which phone sent 

those e-mails, right? 

[WITNESS]: One of the two phones recovered by 

probation. 

* * *

[COUNSEL]: You could tell that that e-mail was written on 

that phone and sent? 

[WITNESS]: Yes out of one of the two phones, correct. 

(Id. at 88-89). 

Although Appellant objected to the Commonwealth’s authentication of 

the emails, the trial court determined that the Commonwealth properly

established that Appellant sent the emails using the “TJFalcone” account. 

(See Trial Court Opinion at 4). We agree that sufficient circumstantial 

evidence supported the court’s decision, including testimony that: 1) the 

content of the emails was similar to that of other letters Alicia Durkin had 

received from Appellant; 2) Appellant’s father said that Appellant did not have 

a cousin named Anthony Falcone; 3) Appellant had a penchant for creating 

alter egos; and 4) police connected the emails to the account on Appellant’s 

cell phone. Compare Koch, supra at 1005 (emphasizing detective’s 

testimony regarding his transcription of text messages from defendant’s cell 

phone was insufficient to authenticate defendant as author; Commonwealth 

did not present testimony from persons who received messages, and 
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messages did not include context clues tending to reveal sender’s identity). 

Under these circumstances, the trial court did not abuse its discretion by 

admitting Appellant’s emails into evidence. See Belknap, supra. 

Accordingly, we affirm the judgment of sentence. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 06/23/2020