A blog of the Philadelphia Bar Association’s Criminal Justice Section

By Burt Rose

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The Superior Court of Pennsylvania has decided the case of COMMONWEALTH of Pennsylvania v. Amy N. KOCH, Appellant, 1669 MDA 2010, 2011 WL 4336634, 2011 PA Super 201 (Sept. 16, 2011), an appeal from a Judgment of Sentence of July 20, 2010, in the Court of Common Pleas of Cumberland County, Criminal Division, at CP–21–CR–0002876–2009. The case was before Judges BOWES, FREEDBERG, and COLVILLE. Judge Bowes wrote the Opinion for the Panel, without dissent.

Amy N. Koch was convicted of possession with intent to deliver marijuana. On appeal, she raised a question of what was necessary to authenticate a text message, an issue of first impression in Pennsylvania. Appellant alleged that the trial court erred in admitting text messages into evidence that were not properly authenticated. Appellant insisted there was no evidence substantiating that she was the author of the text messages, nor evidence that drug-related texts were directed to her because Commonwealth witnesses conceded that another person was using Appellant’s phone at least some of the time.

Text messages are defined as writings or other data transmitted electronically by cellular telephones that constitute an electronic communication for purposes of the Wiretap Act. E-mails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally. 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.

While e-mails and instant messages can be sent and received from any computer or smart phone, text messages are sent from the cellular phone bearing the telephone number identified in the text message and received on a phone associated with the number to which they are transmitted. The identifying information is contained in the text message on the cellular telephone. However, as with e-mail accounts, cellular telephones are not always exclusively used by the person to whom the phone number is assigned.

In this case, a detective testified that he transcribed the text messages, together with identifying information, from the cellular phone belonging to Appellant. He acknowledged that he could not confirm that Appellant was the author of the text messages and that it was apparent that she did not write some of the messages. Regardless, the trial court found that the text messages were sufficiently authenticated to be admissible. The court reasoned that doubts as to the identity of the sender or recipient went to the weight of the evidence, rather than to its admissibility. The Superior Court disagreed.

The detective’s description of how he transcribed the text messages, together with his representation that the transcription was an accurate reproduction of the text messages on Appellant’s cellular phone, was insufficient for purposes of authentication where the Commonwealth conceded that the Appellant did not author all of the text messages on her phone. Authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required.

Absent in this case was any evidence tending to substantiate that Appellant wrote the drug-related text messages. No testimony was presented from persons who sent or received the text messages. There were no contextual clues in the drug-related text messages themselves tending to reveal the identity of the sender. In addition to evidence that Appellant identified the phone as hers, the trial court relied upon the fact that the cellular phone was found on the table in close proximity to Appellant. However, Appellant’s physical proximity to the telephone was of no probative value in determining whether she authored text messages days and weeks before. Therefore, the admission of the text messages constituted an abuse of discretion.

Furthermore, the Court found merit in the Appellant’s position that the text messages constituted inadmissible hearsay. The Commonwealth argued at trial that the out-of-court statements were not offered for the truth of the matter asserted, and thus were not hearsay. Instead, they were offered to “prove the fact that these things were said on this phone.” However, the Court concluded that the text messages constituted inadmissible hearsay as the only relevance of the text messages was because they demonstrated an intent to deliver. The relevance was not that statements were made, but the content of the statements. The evidentiary value of the text messages depended entirely on the truth of their content.

Nor was there any exception to the hearsay rule that would render these text messages admissible, such as under the exception to the Pennsylvania hearsay rule for admissions of a party opponent sur Pa.R.E. 803(25). However, they were not party admissions because the Commonwealth was unable to prove that Appellant was the author. Thus, on the basis of hearsay as well, the admission of the text messages constituted an abuse of discretion.

The prejudicial effect of the improperly admitted text message evidence was so pervasive in tending to show that Appellant took an active role in an illicit enterprise that it could not be deemed harmless. Even with the improperly admitted evidence, the jury only found Appellant liable as an accomplice. Accordingly, the Court concluded that the erroneous admission of these highly prejudicial electronic communications was not harmless error and that a new trial was warranted.

Michael Oresto Palermo, Jr., of Rominger & Associates, 155 S Hanover St., Carlisle, PA 17013 represented the Appellant.

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