In Commonwealth v. Koch, No. 45 MAP 2012 (S.Ct. Dec. 30, 2014), the Pennsylvania Supreme Court gave us a present in the form of an affirmance of a Superior Court panel decision that reversed the trial court's denial of the exclusion of text messages on the grounds that they were hearsay. Because the affirmance was the result of a six-justice court being evenly divided at 3-3, none of the opinions is controlling. Nevertheless, they provide insight into the issues arising from the attempt, at least in a criminal matter, to move into evidence text messages without the sender or receiver of those messages being the witness introducing them.

Factual Background

Police searched the trash bins outside of the residence of the defendant, Amy Koch, her boyfriend and her brother. The search yielded plastic baggies containing cocaine and marijuana residue. Police executed a search warrant for the location and found two baggies, each containing 10 grams of marijuana, and a third bag containing marijuana, as well as a bong, a grinder used to separate seeds and stems from the marijuana leaves smoked, empty bags, a scale, and the butt of a marijuana joint. They also seized two cellphones, one on the kitchen table near some of the other evidence described; when they seized that phone, the defendant asked them repeatedly “why her cellphone was being taken.” The defendant, her brother and her boyfriend were arrested.

Police obtained a separate search warrant for the phone and searched it, finding several texts sent and received four to 10 days prior to the search. None of the names of the parties to the text chats were the defendant's. A detective later testified that the text messages “reflected drug sales activity due to references he understood from his training and experience,” with slang for cocaine, marijuana, various quantities of drugs, including an “eight ball” (about 3.33 grams) of cocaine, and arrangements for drug sales being used.

Koch was convicted of felony possession with intent to deliver marijuana, both as a principal and an accomplice, and misdemeanor marijuana possession. She was acquitted of criminal conspiracy. At trial, she objected to admission of the texts as hearsay, and said they had not been properly authenticated, as the detective introducing them was not a party and they were “unreliable because the phone was shared between two people.” The state argued that the texts were not hearsay because they were introduced only to show “that these things were said on this phone … and that these [statements] would constitute drug receipts, drug statements and orders.” The trial court ruled the texts admissible, to show that, in the prosecutor's words, “[Koch's] phone was used in drug transactions, and, therefore, it makes it more probable than not when [she] possessed this marijuana that she did so with the intent to deliver as opposed to personal use.”

The Court's Opinions

Chief Justice Ronald D. Castille, writing in affirmance, and Justices Thomas G. Saylor and J. Michael Eakin, writing for reversal, agreed that, given the low burden of proof regarding authentication, the texts were properly authenticated. The justices disagreed as to how valuable evidence of authorship was in this calculus, but all agreed that because Koch admitted ownership of the phone, other evidence was sufficient to establish that the texts “indicated drug sales activity,” and Koch was charged as both an accomplice and conspirator, the evidence presented was sufficient to authenticate the texts.