Commonwealth v. Wallace, J., Aplt.Commonwealth v. Wallace, J., Aplt.
CHIEF JUSTICE TODD
Pennsylvania Rule of Evidence 801 defines hearsay as an out-of-court statement made by a declarant, which is offered into evidence to prove the truth of the matter asserted.
I. Background
On April 6, 2018, Kamaal Dutton was shot and critically injured in the vicinity of Spruce and Willow Streets in Norristown, Montgomery County. Responding officers from the Norristown Police Department found Dutton a few blocks away, where he was observed on the ground, bleeding from the head.
As part of their investigation into the shooting, officers surveyed the area and discovered that several local businesses near where the shooting occurred had video surveillance systems. Police were able to recover videos which depicted, inter alia, two adult males, later identified as Mason Clary and Appellant Jamal Wallace, together in the area during the hours leading up to the shooting. Of significance, video captured Clary and Appellant walking in and out of a local deli, and, at one point, Appellant is seen retrieving a firearm from a vehicle parked just outside. Appellant concealed the firearm in his waistband, although there is a visible bulge on his right side. Eventually, the two men connected with a third individual, later identified as C.S., a minor, who was a neighbor of Clary who lived nearby.
Together, the trio walked to Willow and Spruce Streets, passing Dutton as they approached the intersection. The men then suddenly turned, confronted Dutton, and began to assault him. During the altercation, Appellant retrieved the gun from his waistband, pointed it at Dutton in full view of his companions, and, as Dutton began to flee, chased him while firing multiple shots. The men then fled the scene together, leaving Dutton bleeding on the ground. Dutton sustained a gunshot wound to the side of his face, behind his ear. He was transported to a local hospital for treatment and survived. Initially,
Through their investigation, police learned that, at the time of the shooting, Clary was wearing a GPS monitoring device on his ankle.2 Data extracted from this device aided investigating officers in piecing together the whereabouts of Clary and, in turn, Appellant, during the relevant time. Ultimately, both men were arrested and charged with a litany of offenses related to the shooting. Specifically, Appellant was charged with two counts of aggravated assault and one count each of criminal conspiracy, persons not to possess a firearm, and carrying a firearm without a license. See
Prior to trial, Clary filed a motion in limine, seeking, inter alia, the exclusion of the GPS data collected by police on the basis that the evidence constituted hearsay, which was compiled in anticipation of litigation, see Clary‘s Motion in Limine, 2/25/2019, at 4, and the trial court held a hearing. At that time, Appellant‘s counsel presented an oral motion regarding the GPS data from Clary‘s ankle monitor, informing the court that, if the Commonwealth attempted to introduce this evidence at trial, he would lodge a hearsay objection. N.T., 3/4/2019, at 86. Counsel also explained that it was his understanding that the Commonwealth did indeed plan to present this evidence at trial and that, in response to any objection, it would attempt to introduce the data under the business
A joint trial for Appellant and Clary began the next day. Relevantly, as part of its case-in-chief, the Commonwealth sought to introduce the GPS records. At that time, consistent with their pre-trial motions, both Appellant and Clary objected to the introduction of the records, reasserting that they were inadmissible hearsay and, as such, that the Commonwealth was obligated to establish, through a records custodian, that the data was kept in the ordinary course of business pursuant to
Dethlefsen, an account manager at Attenti, testified that he oversees the Parole Board‘s account and that, for each of Attenti‘s accounts, in addition to providing the electronic tracking equipment such as ankle monitors, the company maintains records generated from the monitors. Dethlefsen explained that Clary‘s monitor had a unique serial number and that it tracked his location by utilizing the cellular network. Id. at 132.
At the conclusion of Dethlefsen‘s testimony, the Commonwealth moved for admission of the GPS data, asserting that it had established the records as business records, authenticated by a custodian. See id. at 145-46 (contending that Dethlefsen, as an employee of Attenti with full access to the records, is a custodian thereof). In response, Clary‘s counsel, joined by Appellant‘s attorney, argued that the records were not admissible under the business records exception because: (1) the records were prepared solely for the purpose of litigation; and (2) Dethlefsen was not “the appropriate person to testify as custodian.” Id. at 147.
The trial court disagreed with counsel‘s claims, opining that the Commonwealth established that the challenged evidence fell within the business records exception to the hearsay rule. Id. at 148. Accordingly, the court overruled the objection and permitted the Commonwealth to enter the records in their entirety.
Appellant was found guilty of aggravated assault–serious bodily injury, aggravated assault–attempting to cause serious bodily injury, criminal conspiracy, and carrying a firearm without a license.8 On May 23, 2019, he was sentenced to an aggregate term of 32 to 65 years of imprisonment.
On June 3, 2019, Appellant filed a post-sentence motion contesting the sufficiency and weight of the evidence to sustain his convictions, as well as requesting that the trial court reconsider the sentence imposed. The trial court denied Appellant‘s motion.
In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court maintained that the GPS records were properly admitted as business records, reiterating its finding during trial that the Commonwealth established, through a proper custodian, that the records, automatically generated and stored electronically without any human intervention, were not created and maintained for the purposes of litigation but, rather, were preserved for purposes of supervision and, potentially, sanctions for those found in violation of their parole conditions. Trial Court Opinion, 10/21/2019, at 15-16.
The trial court opined in the alternative that, even if the evidence at issue did not meet the requirements necessary to fall within the business records exception, Appellant would still not be entitled to relief because the records were not hearsay, as they were “computer generated and d[id] not constitute an assertion made by a person.” Id. at 16. Although acknowledging that this was an issue of first impression in Pennsylvania, the court found that decisions from other jurisdictions, which “ruled that GPS data cannot be hearsay because it is not an assertion made by a person,” supported its alternative holding. See id. (“For example, the Supreme Court of Wisconsin [in State v. Kandutsch, 799 N.W.2d 865 (Wis. 2011) (superseded by statute on other grounds),] concluded that a computer-generated report is not hearsay ‘when it is the result of an automated process free from human input or intervention.‘“).
As in the Wisconsin case, the trial court emphasized that, here, the record established that Clary‘s GPS records were computer records that were generated and automatically stored electronically, as opposed to records created by Attenti or the Parole
On appeal to the Superior Court, Appellant reiterated his argument that the trial court erred in admitting the data from Clary‘s GPS monitor into evidence, contending the records constituted inadmissible hearsay. In setting forth his argument, Appellant claimed that there is a “national split on whether GPS records qualify as hearsay records,” an issue which he conceded has yet to be directly addressed by this Court. Appellant‘s Brief to Superior Court at 7. Although aware of the competing views on GPS data as it relates to hearsay, Appellant relied heavily on a case from Florida, Channell v. State, 200 So.3d 247 (Fla. Dist. Ct. App. 2016). Therein, the Florida court held that GPS data created from the defendant‘s electronic monitoring bracelet was hearsay.9 Appellant urged the Superior Court to “adopt Florida‘s position and hold that GPS records qualify as hearsay.”10 Appellant‘s Brief to Superior Court at 8.
The Superior Court affirmed Appellant‘s judgment of sentence in a published opinion authored by Judge Anne Lazarus and joined by Judges John Bender and Correale Stevens. Commonwealth v. Wallace, 244 A.3d 1261 (Pa. Super. 2021). In
That said, the court explained it was aware that, in Channell, the Florida District Court of Appeal held that GPS records are hearsay. However, the panel emphasized that, in relying on this case, Appellant failed “to acknowledge that the relevant definitions framing the hearsay analysis are materially different under the Florida Evidence Code and the Pennsylvania Rules of Evidence.” See id. at 1271-72 (comparing
We granted review to address whether the Superior Court erred in this determination. See Commonwealth v. Wallace, 270 A.3d 428 (Pa. 2021) (order). In resolving this question, we are tasked with deciding whether GPS data, collected from Clary‘s electronic monitor device, is hearsay and, thus, was inadmissible at Appellant‘s trial. This is an evidentiary question, for which our standard of review is well settled: “Questions concerning the admissibility of evidence are within the sound discretion of the trial court, and this Court will not reverse the trial court‘s decision absent an abuse of that discretion.” Commonwealth v. Laich, 777 A.2d 1057, 1060 (Pa. 2001); see also Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996) (explaining that “[d]iscretion is abused when the course pursued [by the trial court] represents not merely an error of judgement, but where the judgement is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will” (internal citation omitted)).
II. Parties’ Arguments
Appellant asserts that the Superior Court erred in finding that computer-generated data is exempt from the hearsay rule. Highlighting that the court‘s affirmation of the trial court‘s evidentiary ruling was based upon a theory that was never pursued by the
For example, acknowledging that this Court has not directly addressed whether data collected from a GPS ankle monitor constitutes hearsay, Appellant cites Commonwealth v. Le, 208 A.3d 960 (Pa. 2019) (in addressing challenge to admissibility of cell phone, determining that Le was not entitled to relief because his claim on appeal was waived), and Commonwealth v. Carter, 932 A.2d 1261 (Pa. 2007) (holding that the trial court did not abuse its discretion in admitting a state laboratory report, which indicated the presence of cocaine in materials seized from Carter, pursuant to the business records exception). Appellant claims that, in these cases, this Court “recognized that comparable items such as cell phone location data and other cell phone records are hearsay which must be introduced under an exception to the rule against hearsay” and, thus, supports a determination that GPS records are hearsay statements, which must meet an enumerated exception for them to be admissible. Appellant‘s Brief at 27-28.
Appellant argues that the GPS data introduced at his trial “plainly constitute[d] a statement under this Court‘s existing precedent,” and that Superior Court herein neither offered “justification for such a dramatic change in the rules of evidence,” nor considered the above-cited cases when conducting its analysis. Id. at 30-31; see also id. at 30 (emphasizing that, until the intermediate court issued its opinion in this case,
Additionally, Appellant criticizes the manner in which the Superior Court interpreted the Florida decision in Channell, supra. Although recognizing that there is no national consensus on whether GPS data falls within the rule against hearsay, and conceding that some states have found that computer-generated data is not hearsay, see e.g., Lizarraga-Tirado, 789 F.3d at 1109 (satellite image and GPS coordinates where Lizarraga-Tirado was arrested were not hearsay), Appellant asserts that the Superior Court‘s attempt to distinguish Florida‘s hearsay rule at issue in Channell from Pennsylvania‘s was based on an incorrect reading of Florida‘s definition of hearsay. See Appellant‘s Brief at 34-35 (noting that Florida‘s hearsay rule refers to a statement made by a “declarant” and defines a “declarant” as a person). Moreover, in Appellant‘s view, Channell‘s analysis “makes sense” because computers are “programmed by people,” id. at 37, and he emphasizes that, even if we determine that GPS data is hearsay, in many cases, computer-generated data will be admissible as a business record, or through expert testimony, id. at 39-40.13
However, with respect to the instant matter, Appellant maintains that, in addition to concluding that GPS data is hearsay, we should also find that the data introduced at trial in this case was not admissible under the business records exception. In his view, the records failed to meet the requirements of this exception as they were both unreliable and prepared for the purposes of litigation. Id. at 41-42. More specifically, Appellant asserts that “the records show a lack of trustworthiness” because Dethlefsen, the Attenti
The Commonwealth also challenges Appellant‘s claim that previous decisions from this Court and the intermediate courts validate his position that GPS records are statements. Rather, the Commonwealth submits that the cited cases did not involve a question of whether device-generated records constituted statements under Rule 801(a), but, rather, that it was merely assumed they did. For example, the Commonwealth explains that, in Le, supra, in addressing the admissibility of cell phone records, this Court
Further, the Commonwealth contends the fact that humans create computer programs is irrelevant to Rule 801‘s “person” requirement. See id. at 22 (arguing that, according to Appellant‘s reasoning, “the instant brief would be a statement by Bill Gates and Microsoft, since the undersigned used a Microsoft program to write the brief“). Simply put, the Commonwealth insists that device-generated information is nothing more than data and, thus, is not a person‘s assertion.16 Id. at 23.
Finally, the Commonwealth maintains that any concern regarding the accuracy of computer-generated records is not encompassed in the question presented to this Court. Rather, the Commonwealth argues, “questions of accuracy and reliability are determined under
III. Discussion
This Court has acknowledged that, “[a]t times, the line that divides hearsay from non-hearsay can be difficult to discern.” Commonwealth v. Fitzpatrick, 255 A.3d 452, 458 (Pa. 2021). Nevertheless, generally speaking, “[t]o constitute hearsay, a statement first must be uttered out-of-court, and then it must be offered in court for the truth of the matter asserted in the statement.” Id. We accord special scrutiny to hearsay because a “hearsay statement lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence.” Heddings v. Steele, 526 A.2d 349, 351 (Pa. 1987); see also id. (“Perhaps such a statement‘s most telling deficiency is it cannot be tested by cross-examination.“).
In Pennsylvania, hearsay is a statement that: “(1) the declarant [did] not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”
With this in mind, we turn to the question before us. As acknowledged by the parties and lower courts, this Court has yet to directly address whether data collected from a GPS ankle monitor constitutes hearsay. However, upon review, we find that the language in Rule 801 is clear: a statement is a written or oral assertion of a person. Here, the relevant assertion – the GPS location data – was not made by a person but collected electronically by the GPS monitoring device attached to Clary‘s ankle. Thus, by definition, this evidence cannot constitute hearsay. Cf. Commonwealth v. Davis, 168 N.E.3d 294, 310 (Mass. 2021) (holding that, because “[c]omputer-generated records are created solely by the mechanical operation of a computer and do not require human participation[,] . . . they cannot be hearsay“).
In that regard, we find unavailing Appellant‘s argument that computer-generated data constitutes a statement for hearsay purposes because a person created the computer program that produced the data. Indeed, we find Appellant‘s citations to cases from this Court, which he suggests indicate our recognition of similar evidence as hearsay, to be unpersuasive. This is so because, in each of the cases cited, the contested evidence was merely presumed to be hearsay for the purposes of analyzing a hearsay exception. See Le, 208 A.3d at 970-71 (assuming that cell phone records were hearsay when considering whether the Commonwealth properly introduced them at trial under the business records exception but never reaching the merits of the claim); Carter, 932 A.2d
Rather, we agree with the Superior Court that, to adopt Appellant‘s (and Florida‘s) position regarding GPS records, “we would have to ignore the evidentiary definitions of Pennsylvania law.” See Wallace, 244 A.3d at 1272. Moreover, our determination comports with the decisions of other jurisdictions, which, when interpreting similar evidentiary rules, have reached the same conclusion. For example, in Lizarraga-Tirado, supra, the Ninth Circuit held that GPS coordinates on a satellite image from a Google Earth program were not hearsay because, under the applicable federal evidentiary rule, a “statement” must be made by a person and, in that case, the relevant assertion was made by a computer program. See Lizarraga-Tirado, 789 F.3d at 1110 (“Though a person types in the GPS coordinates, he has no role in figuring out where the tack will be placed” and, therefore, because “the program makes the relevant assertion—that the tack is accurately placed at the labeled GPS coordinates—there‘s no statement as defined by the hearsay rule“). Similarly, in Rodriguez, supra, a California appellate court addressed a claim that GPS data generated from a defendant‘s ankle monitor was inadmissible hearsay. Like the Ninth Circuit in Lizarraga-Tirado, the Rodriguez court concluded that “data that is automatically generated by a computer is not hearsay because it is not a statement of a person.” Rodriguez, 16 Cal. App. 5th at 379; see also City of LaVergne v. Gure, 2022 WL 3709387, at *3 n.2 (Tenn. Ct. App. 2022) (“[g]enerally speaking, machines
That said, arguably, Appellant‘s best argument is that there is a lack of consistency on this issue nationwide. See, e.g., Channell, supra; R.L.G. v. State, 322 So.3d 721, 724 (Fla. Dist. Ct. App. 2021) (explaining that, in Florida, “GPS records of third parties have traditionally been treated as hearsay and thus ordinarily admissible only under the business records exception to the hearsay rule“); State v. Lawson, 154 N.E.3d 658, 664 (Ohio App. Ct. 2020) (noting that, under the relevant Ohio evidentiary rule, a “statement” is an oral or written assertion and, thus, “GPS data constitutes an out-of-court ‘statement‘” for hearsay purposes). Indeed, before this Court, Appellant relies almost exclusively on cases from Florida, which, as indicated supra, have held that GPS records are hearsay, and he suggests that this Court should follow suit.
In response to Appellant, the Commonwealth argues that a comparison of Florida‘s hearsay rule against our own reveals a flaw in Appellant‘s position. Specifically, the relevant Florida evidentiary rule describes hearsay as an out-of-court statement and defines “statement” as either: “(1) [a]n oral or written assertion; or (2) [n]onverbal conduct of a person if it is intended by the person as an assertion.”
For example, in Channell, the court cited Florida‘s hearsay rule but did not address the person requirement in
Finally, our conclusion that GPS data is not hearsay comports with the purpose of the rule against hearsay, especially as it pertains to a defendant‘s right to confrontation. In that regard, we agree with the observation of the Eleventh Circuit in United States v. Lamons, 532 F.3d 1251 (11th Cir. 2008): “Although the right to subject witnesses to the crucible of cross-examination has some symbolic purpose in promoting the ‘perception as well as the reality of fairness,’ . . . [t]hese purposes are ill-served through confrontation of the machine‘s human operator.” Id. at 1264-65. That is, hearsay statements are generally inadmissible because their introduction robs a defendant of his ability to cross-examine the declarant to test his truthfulness or challenge his statements – but a machine cannot be cross-examined. Accordingly, “[t]he best way to advance the truth-seeking process with respect to such ‘statements’ is not through cross-examination of the machine
Appellant seemingly acknowledges as much, contending that computer programs are susceptible to error and, thus, computer-generated data can be inaccurate and unreliable. Appellant‘s Brief at 23-24. Here, however, an authentication challenge was not raised by Appellant before the Superior Court and, accordingly, to the extent one is presented now, it is waived. See Pa.R.A.P. 302 (issues not raised in the lower court are waived and cannot be raised for the first time on appeal). Consequently, while this Court can foresee issues arising with regard to the reliability and authentication of computer-
In conclusion, we hold that GPS data does not constitute hearsay under the plain language of Rule 801 because it does not constitute a statement as defined therein.22 We leave for another day whether, and under what circumstances, such evidence may be challenged on reliability, authentication, or other grounds.
For these reasons, we affirm the order of the Superior Court.
Justices Donohue, Dougherty, Mundy and Brobson join the opinion.
Justice Wecht files a concurring opinion.
The Late Chief Justice Baer did not participate in the decision of this matter.
Notes
[a] record (which includes a memorandum, report, or data compilation in any form) of an act, event or condition if:
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a “business“, which term includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
Florida‘s Evidence Code defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted[,]” see
Similarly, Defense Amici assert that, regardless of whether computer-generated evidence, such as GPS data, is deemed to be hearsay, such evidence must meet a threshold determination of reliability before it is admitted in a criminal proceeding. See Defense Amici‘s Brief at 4 (explaining that, while they take no position on whether GPS data constitutes hearsay, because such information is increasingly used in criminal prosecutions, this Court should “render its decision cognizant of the need for GPS and other data evidence to meet the threshold of reliability“).