Amy N. Koch appealed her July 20, 2010 sentence of 23 months probation following her conviction as an accomplice for possession with intent to deliver (“PWID”) (marijuana) and possession of a controlled substance (marijuana) as an accomplice.
Ms. Koch appealed on the grounds that the Court admitted text messages from her cell phone as evidence. She contends the text messages were hearsay and inadmissible.
The evidence revealed the following course of events.
- An informant told police that Norman Koch, a/k/a Matt Koch, was selling cocaine and that he resided with his sister, Amy Koch (the Appellant), and Dallas Conrad, Amy’s “paramour”.
- Police conducted 2 trash pulls at Amy’s residence. Those yielded 2 baggies, 1 containing cocaine residue, the other marijuana residue.
- Detectives searched Ms. Koch’s residence on found evidence of drugs. They also seized 2 cell phones, one identified as hers and the other identified as her brother’s.
- Text messages were transcribed. Prosecutor’s offered testimony and a transcript of what they described as 13 drug-related text messages.
- Ms. Koch’s attorneys objected due to authenticity and hearsay. Objections were overruled.
Ms. Koch appealed and the Pennsylvania Superior Court found there was no showing that the defendant wrote the 13 drug-related text messages and they were inadmissible hearsay.
While the detective who testified at trial said that the cellular phone from which the messages were recovered belonged to Ms. Koch, he conceded that the author of the drug-related text messages could not be ascertained and that some of the text messages referenced Ms. Koch in the third person so were clearly not written by her. Further, the text messages were not complete; it was evident that some had been deleted.
The trial court reasoned that doubts about the identity of the sender or recipient of text messages went to the weight of the evidence rather than admissibility. The appeals court disagreed,
“We disagree,” the appeals court opinion said. “Authentication is a prerequisite to admissibility. … Circumstantial evidence, which tends to corroborate the identity of the sender, is required.”
The question as to what is necessary to authenticate a text message appears to be an issue of first impression in Pennsylvania.
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*. The court said that such authentication evidence was not offered in Koch’s case.
“Glaringly absent in this case is 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 are no contextual clues in the drug-related text messages themselves tending to reveal the identity of the sender.”
Ms. Koch’s sentence was overturned and her case has been remanded for a new trial. To read the full text of the Court’s Opinion, follow this link.
* The Federal Wiretap Act of 1968 made it illegal to record telephone communications; this was amended by the Electronic Communications Privacy Act of 1986 to include oral, wire, or electronic communications.