3-3 Tie in PA Supreme Court Tightens Admissibility of Electronic Messages

In a split decision, the Pennsylvania Supreme Court in Commonwealth v. Koch, 2014 Pa. LEXIS 3491, affirmed the lower court’s decision that text messages discovered during a drug investigation were inadmissible hearsay.

Believe it or not, in 2015, Pennsylvania (like many other states) still does not have a coherent legal rule for the authentication and admissibility of electronic messages such as texts.  Koch gave the Court an opportunity to address the novel evidentiary issues that these “new” technologies raise.  However, because of former Justice McCaffery’s departure, the Pennsylvania Supreme Court was unable to come to a majority consensus in this case, leaving the question open for another day.  Nevertheless, this decision gives defense attorneys ample incentive to further attack the admissibility of electronic evidence in pending and future cases.

In 2009, North Middletown Township Police, after obtaining a search warrant, executed a search warrant of the defendant’s residence.  The search turned up drugs and other paraphernalia.  Two cell phones were seized.  After obtaining another warrant to search the phones, police discovered numerous text messages indicating to them that the defendant was dealing drugs.   The defendant was charged with felony possession with intent to deliver, criminal conspiracy, and unlawful possession.

At trial, the Commonwealth attempted to question a detective about his interpretation of the messages on the defendant’s cellphone (which the defendant had admitted ownership of).  Defense counsel objected, arguing that the texts were both unauthenticated and inadmissible hearsay in any event.  The trial court ruled that the ownership of the phone and the corresponding messages therein could be introduced only as circumstantial evidence of the defendant’s participation in the drug trade (“non-hearsay”).

Chief Justice Castille,  author of the controlling opinion, agreed with the trial court that the messages could  be authenticated based on the evidence the Commonwealth provided, namely that the defendant admitted ownership.  Still, he recognized that there was absolutely no evidence establishing that the defendant wrote the incriminating messages.  Chief Justice Castille emphasized that authentication was largely available in this case because the defendant had been charged as a member of a criminal conspiracy, highlighting that authorship is not as crucial to authentication in conspiracy cases as it may be under other facts.

While the controlling opinion countenances that the messages could be authenticated under the low-bar of Rule 901, Chief Justice Castille’s opinion states at length that the normal inquiry into whether something is hearsay (an out-of-court statement introduced as proof for the matter asserted) is not a difficult question in this case.  The three-member plurality believed the only relevance of the messages would be as substantive evidence probative of the defendant’s alleged intent to engage in a drug transaction and therefore the text messages were inadmissible hearsay.

The members of the minority, who would have supported reversal of the Superior Court’s decision, disagreed on the manner of authenticating electronic messages.  Justice Eakin wrote that he did not believe modern communications technology presented any novel question at all, and that most of the materials were non-hearsay.  Likewise, Justice Saylor would have reversed the Superior Court’s order relative to the hearsay issue because any error in allowing the inadmissible hearsay was, on the whole, harmless error.

It seems evident that the Court will again have to take up the issue of how to properly authenticate electronic messages in the near future–with the real possibility of a very different result.  Chief Justice Castille turned 70 this past year — the mandatory retirement age.  Dissenting in Koch, Justice Saylor was just sworn in as the new Chief Justice earlier this month.  In November, Pennsylvania voters will elect three new members of the high court, including replacements for two members of Koch’s controlling three-Justice plurality.