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Commonwealth v. Koch - 2011 PA Super 201, 39 A.3d 996

Rule:

Authentication is a prerequisite to admissibility. 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.

Facts:

Amy N. Koch appeals the July 20, 2010 judgment of sentence of twenty-three months probation imposed following her conviction of possession with intent to deliver ("PWID") (marijuana) and possession of a controlled substance (marijuana) as an accomplice. A confidential informant had advised police that defendant's brother was involved with selling drugs. Defendant's brother resided with her at her home. Defendant was arrested after various contraband was found in the house. Defendant's conviction was primarily based on test messages and transcripts of text messages. 

Issue:

Did the trial court err in admitting text messages and transcripts of text messages over the objection of defense counsel, where the text messages were not authenticated, and the author of the text messages could not be ascertained?

Answer:

Yes.

Conclusion:

The court held that the trial court abused its discretion by admitting the evidence of the text messages because they were not properly authenticated. The court noted that Commonwealth witnesses conceded that another person had used defendant's cell phone at least some of the time. The court held that the author of the text messages could not be ascertained as no testimony was presented from persons who sent or received the text messages. The court also held that the text messages constituted inadmissible hearsay. The court found that the admission of the text messages was not harmless error as the improper admission of the text message evidence could have contributed to the jury's verdict.

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