A man sends a woman threatening messages, nude photographs, and videos over Facebook and Instagram. When she blocks him, he builds new accounts and starts again. He is charged with stalking. He is charged with harassment. And he is charged with possessing an instrument of crime.
The instrument? His cell phone.
In Commonwealth v. Hernandez, 2026 PA Super 161 (Pa. Super. filed July 29, 2026), the Superior Court held for the first time in a published opinion that a cell phone used to send threatening messages over social media is an “instrument of crime” under 18 Pa.C.S. § 907. The panel — Judge King writing, joined by President Judge Emeritus Panella and President Judge Emeritus Ford Elliott — affirmed the convictions but vacated the harassment sentences, which should have merged with stalking.
The Case in Short
The victim testified that from 2019 through 2021 the defendant contacted her through Facebook messaging and suggested he wanted to date her. She said no. He kept messaging. She ignored him and he stopped — for about a year.
Then he started again. She blocked his account; he made a new one. He moved to Instagram; she blocked him there; he made new profiles there too. The messages turned violent and threatening. He sent nude photos of himself and a video of himself skateboarding at a skatepark she frequented. The Commonwealth introduced fifteen screenshot exhibits she had captured. She testified the messages made her feel uncomfortable and paranoid about her safety.
On the second day of trial in Delaware County, the court learned that the defendant had cut off his GPS monitor and absconded. Trial continued in his absence. The jury convicted him of two counts of stalking under 18 Pa.C.S. § 2709.1(a)(2), two counts of harassment under 18 Pa.C.S. § 2709(a)(4), and one count of possessing an instrument of crime. The one stalking and one harassment count for Facebook, one of each for Instagram.
He remained a fugitive until September 2024. At sentencing in March 2025, after he refused to stop swearing at the court and was removed from the courtroom, the trial court imposed 33 to 84 months on the Facebook stalking count, a consecutive 33 to 84 months on the Instagram stalking count, a consecutive 12 to 24 months on the PIC count, and concurrent terms of 6 to 12 months on each harassment count.
What “Instrument of Crime” Actually Means
Section 907 makes it a first-degree misdemeanor to possess “any instrument of crime with intent to employ it criminally.” The statute defines an instrument of crime two ways. The first covers anything “specially made or specially adapted for criminal use” — a lockpick, a sawed-off shotgun. The second, and the one that matters here, covers “[a]nything used for criminal purposes and possessed by the actor under circumstances not manifestly appropriate for lawful uses it may have.” 18 Pa.C.S. § 907(d)(2).
That second definition used to be narrower. It once read “anything commonly used for criminal purposes.” The Legislature deleted “commonly.” What remains is a clause about ordinary objects put to criminal use.
Two cases mark the boundaries. In Commonwealth v. Vida, 715 A.2d 1180 (Pa. Super. 1998), a paint stick used to write graffiti on a lamp pole was an instrument of crime — the stick was the thing by which the criminal mischief was committed. In Commonwealth v. Williams, 808 A.2d 213 (Pa. Super. 2002), a walkie-talkie used to direct a police informant to a house before a drug sale was not. The court held that “the mere use of an item to facilitate a crime does not transform the item into an instrument of crime,” and drew the line at equipment “not used in the crime itself, but used only to facilitate the crime.” A walkie-talkie during a drug sale, the court said, is like a truck used to haul away stolen property.
So the question in every § 907(d)(2) case is which side of that line the object falls on. Is it the thing the crime was committed with, or the thing that helped the crime along?
Why the Phone Fell on the Vida Side
The defendant argued the phone was the walkie-talkie. It merely facilitated communications, he said, and Facebook and Instagram could have been reached from a computer just as easily. He pressed this to the extreme: if a phone is an instrument of crime, then so is the pen used to write a harassing letter, and the envelope, and the stamp.
The court disagreed, and the reasoning turned on a feature of the underlying offenses. Stalking under § 2709.1(a)(2) is committed by repeatedly communicating with someone under circumstances demonstrating an intent to place them in fear of bodily injury or cause substantial emotional distress. Harassment under § 2709(a)(4) is committed by communicating lewd, lascivious, threatening, or obscene words. Both crimes are the communications. So when the phone sent the messages, it did not help the crime happen alongside it — it was the means by which the elements were satisfied. As the court put it, the phone “was crime equipment used to post messages on social media applications to communicate the threats that constituted the crimes of stalking and harassment.”
The panel took two steps to contain that reasoning.
First, it declined to rely on Interest of K.M.M.B., No. 821 EDA 2020, 2021 WL 2447123 (Pa. Super. filed June 15, 2021), the unpublished memorandum both the trial court and the Commonwealth had cited. In K.M.M.B., a panel affirmed a PIC adjudication where the instrument was a phone used to post threats on Snapchat — but the appellant there had challenged only intent, and the court never analyzed whether the phone qualified as an instrument at all. Judge Kunselman concurred separately in that case to voice reservations about “the potentially far-reaching application of the PIC statute,” echoing Judge Beck’s concurrence in Vida two decades earlier, which had asked whether a telephone used to harass, or a megaphone used to incite a riot, would now qualify. Judge Kunselman wrote that she doubted the Legislature intended the PIC statute to mean “that whenever a person is charged with one crime, he or she will automatically be charged with a second.”
Second, the Hernandez panel wrote a footnote of its own. Mindful of both concurrences, it said the holding “is limited to the facts of this case and should not be read to mean that one’s use of a cell phone during the commission of a crime will necessarily support a conviction for PIC under all fact patterns.”
Two Platforms, Two Stalking Counts
The defendant also argued that his repeated messaging was one course of conduct, and should have produced one stalking count and one harassment count rather than two of each. He raised it as a charging problem and as a merger problem.
The charging version was waived. He claimed he had raised it orally at a January 2023 hearing, but that hearing was never transcribed — the Superior Court went so far as to contact the trial court prothonotary to confirm no transcript existed — and nothing else in the record showed the issue being raised. Under Commonwealth v. Rush, 959 A.2d 945 (Pa. Super. 2008), the burden is on the appellant to show where in the certified record an issue was preserved.
The merger version was not waived, because a merger claim goes to the legality of the sentence and can be raised for the first time on appeal. Merger is governed by 42 Pa.C.S. § 9765: no crimes merge unless they arise from a single criminal act and all the statutory elements of one are included in the other. Both conditions must be met.
The court held they were not, because the Facebook stalking and the Instagram stalking were separate criminal acts. The foundation is Commonwealth v. Leach, 729 A.2d 608 (Pa. Super. 1999), where a defendant who vandalized a car on nine separate occasions was properly convicted of nine counts of stalking. Leach held that stalking “occurs with each act involved in an established course of conduct, and forms the basis for an independent charge” — each act is not merely cumulative evidence of stalking but a stalking in itself. The trial court applied that to platforms: each time the victim opened Facebook she was victimized, and each time she opened Instagram she was victimized again. The Superior Court agreed, noting the repeated use of each platform independently caused substantial emotional distress.
Harassment Merges — and He Still Gets Nothing
Here the defendant won, on paper. Harassment is a lesser-included offense of stalking, and the sentences must merge. Commonwealth v. Cruz, 348 A.3d 1199, 1215 (Pa. Super. 2025) (citing Commonwealth v. Reese, 725 A.2d 190 (Pa. Super. 1999)). The same conduct that amounts to harassment, if committed repeatedly with intent to place the victim in fear of bodily injury or cause substantial emotional distress, becomes stalking. The Commonwealth agreed. The court affirmed the harassment convictions but vacated the sentences imposed on them.
The practical effect is zero. The harassment terms were 6 to 12 months, concurrent with each other and concurrent with the stalking and PIC sentences. Because vacating them does not disturb the overall sentencing scheme, no remand for resentencing was necessary. Commonwealth v. Thur, 906 A.2d 552, 569 (Pa. Super. 2006). He walks away with the same aggregate sentence he came in with.