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Commonwealth v. Koch, 2011 Pa. Super. LEXIS 2716 (Pa. Super. Ct. Sept. 16, 2011).  Premium Content - Sign on to View
Defendant's sentence for being an accomplice to drug possession was reversed because text messages on which her conviction was based were not properly authenticated. Another person had used defendant's cell phone on occasion, and no testimony was presented from persons who sent or received the messages.

Police obtained a search warrant for defendant's house where she lived with her partner and her brother. Residue of illegal drugs had been found during "trash pulls" outside the house that followed a tip from an informant that the brother was selling illegal drugs. During the search of the house, police seized drugs and two cell phones, including one belonging to defendant. After being presented with text messages from defendant's cell phone, the jury convicted her of being an accomplice to drug possession.

The court reversed defendant's sentence and remanded for a new trial. There was evidence that she was not the only person with access to her cell phone, and the text messages had not been authenticated as messages that necessarily were authored by her or directed to her. A detective acknowledged that the author of drug-related messages could not be determined and that some of the messages referred to defendant in the third person.

According to the court, "the question of what is necessary to authenticate a text message appears to be an issue of first impression in Pennsylvania." The court held that “e-mails and text messages are documents and subject to the same requirements for authenticity as non-electronic documents generally." While a document could be authenticated by direct or circumstantial evidence, cell phones through which messages were texted were not always exclusively used by the person to whom the phone number was assigned. In this case, the court stated:

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.
The text messages thus were inadmissible hearsay, and the error in presenting them to the jury was highly prejudicial to defendant. Since the error was not harmless, she was entitled to a new trial.