Commonwealth, Aplt v. Koch, A., 106 A.3d 705

Background

Police conducted trash pulls and a search warrant at Amy Koch's residence after a confidential informant implicated her brother; officers seized marijuana, paraphernalia, cash, and two cell phones.
Detective Lively read and transcribed incoming and outgoing text messages from one seized phone; he interpreted slang terms as reflecting drug sales but conceded he could not prove who authored many messages.
Koch was charged with PWID (possession with intent to deliver), conspiracy, and possession; at trial the Commonwealth introduced the transcribed texts and Detective Lively’s interpretation; Koch was convicted of PWID (as an accomplice) and possession.
Koch objected at trial that the text messages were unauthenticated and hearsay; the trial court admitted them as authenticated and non-hearsay (offered to show the phone’s use), and reserved a cautionary instruction.
The Superior Court reversed, holding the texts were not adequately authenticated and were inadmissible hearsay used for their truth; the Pennsylvania Supreme Court would have affirmed the reversal on hearsay grounds but was evenly divided, and this opinion supports affirmance.

Issues

Issue	Commonwealth's Argument	Koch's Argument	Held
Authentication of text messages	Possession of the physical phone and admission that it belonged to Koch plus message content is sufficient circumstantial proof that the texts were what the Commonwealth claimed (i.e., phone used in drug transactions).	Mere possession of a phone does not establish authorship; Commonwealth failed to provide direct or corroborating circumstantial evidence that Koch authored the incriminating messages.	Trial court did not abuse discretion in finding authentication sufficient given low Rule 901 standard and case facts (ownership + content); authorship relevant but here not fatal because charged as accomplice/conspirator.
Hearsay—admission of message contents	Messages were offered not for truth but to show the phone was used in drug transactions (non-hearsay, comparable to records showing association). Alternatively, co-conspirator exception or other hearsay exceptions apply.	Messages were plainly offered and used for the truth of their contents (to prove intent to deliver); expert testimony interpreting the texts turned them into substantive evidence against Koch; hearsay objection was valid.	Admission of the message contents was an abuse of discretion: prosecutor admitted purpose was to prove substantive truth; messages were hearsay and not admissible for that purpose; error was not harmless given weakness of other evidence on intent.
Use of detective’s interpretive testimony	Detective’s interpretation was permissible to explain context and show phone usage.	Detective’s testimony impermissibly relayed and bolstered hearsay content and vocabulary to prove guilt.	Detective’s testimony magnified the hearsay problem; it effectively presented the messages’ substantive content to the jury and thus was improper.
Harmless error / need for new trial	Any evidentiary error was harmless because other circumstantial evidence supported PWID conviction.	The texts were central to proving intent; without them conviction on PWID would be unlikely—error was not harmless.	Error was not harmless—the messages were pivotal to intent proof—requiring reversal/new trial (opinion would affirm the Superior Court on hearsay ground).

Key Cases Cited

In re F.P., 878 A.2d 91 (Pa. Super. 2005) (electronic messages may be authenticated under existing Rule 901 standards).
Commonwealth v. Glover, 582 A.2d 1111 (Pa. Super. 1990) (a written record admitted to show its existence/possession rather than truth of its contents).
Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012) (authentication of text messages generally requires corroborating evidence of authorship).
State v. Forde, 315 P.3d 1200 (Ariz. 2014) (possession of phone and subscriber info may suffice to authenticate texts).
Commonwealth v. Collins, 957 A.2d 237 (Pa. 2008) (distinctive characteristics and circumstances can authenticate communications).
Commonwealth v. Busanet, 54 A.3d 35 (Pa. 2012) (distinguishing hearsay admitted for non-truth purposes from substantive hearsay).