Commonwealth v. Koch

• Decision Date: 30 December 2014
• Docket Number: No. 45 MAP 2012,45 MAP 2012
• Citation: 106 A.3d 705 (Mem)
• Parties: COMMONWEALTH of Pennsylvania, Appellant v. Amy N. KOCH, Appellee.
• Court: Pennsylvania Supreme Court

106 A.3d 705 (Mem)

COMMONWEALTH of Pennsylvania, Appellant

v.Amy N. KOCH, Appellee.

No. 45 MAP 2012

Supreme Court of Pennsylvania.

Argued Oct. 16, 2012.

Resubmitted Feb. 19, 2014.

Decided Dec. 30, 2014.

David James Freed, Esq., Matthew Peter Smith, Esq., Cumberland County District Attorney's Office, for Commonwealth of Pennsylvania.

Michael Oresto Palermo Jr., Esq., Carlisle, Palermo Law Offices, for Amy N. Koch.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, STEVENS, JJ.

ORDER

PER CURIAM.

AND NOW, this 30th day of December, 2014, the Court being evenly divided, the Order of the Superior Court is AFFIRMED.

Chief Justice CASTILLE files an opinion in support of affirmance in which Justices BAER and TODD join.

Justice SAYLOR files an opinion in support of reversal.

Justice EAKIN files an opinion in support of reversal in which Justice STEVENS joins.

Chief Justice CASTILLE, in support of affirmance.

This discretionary appeal concerns the proper manner in which cell phone text messages can be authenticated and whether and when such messages are inadmissible hearsay. The trial court admitted the messages as sufficiently authenticated and not hearsay; the Superior Court reversed on both grounds in a unanimous published opinion that ordered a new trial. This Court accepted the Commonwealth's appeal, but has evenly divided. For the reasons set forth below, we would affirm.

On March 14 and 24, 2009, North Middleton Township Police Officer Richard Grove and another officer, acting on suspicion that unlawful controlled substances were present and that drug sales activity was being transacted, conducted “trash pulls” of discarded garbage at a residence lived in by Amy Koch (appellee), her boyfriend, Dallas Conrad, and her brother, Norman Koch, also known as “Matt.” Appellee's brother was the original target of the officers' suspicions after a confidential informant indicated that he was living at the residence and selling cocaine from his car. Based upon evidence recovered from the trash pulls, including plastic “baggies” containing residue of both cocaine and marijuana, the police obtained a search warrant, which was served and executed at appellee's residence on March 25, 2009, by Officer Grove and North Middleton Township Police Detective Timothy Lively. During the search, the officers found two baggies, each containing roughly ten grams of marijuana, and $700 cash in the drawer of a dresser in the master bedroom; in a shoebox on top of the same dresser, the officers found a used “bong,” two marijuana pipes, a grinder (commonly used to separate marijuana seeds and stems from the leaves that are smoked), an open package of “Philly Blunts,” empty baggies of various sizes, and the “end portion of a joint.” Searching the basement of the residence, the officers found a small bag of marijuana inside a freezer and a “bud” of marijuana in a small woven basket.

During the search, the officers also found a used marijuana pipe and an electronic scale covered with marijuana residue on top of the refrigerator in the kitchen. Detective Lively looked for cell phones in the residence because drug dealers and users commonly use cell phones to communicate and arrange transactions. He seized two cell phones, one of which he found on the kitchen table near where appellee was during the search; appellee asked him several times “why her cell phone was being taken.” Appellee was arrested, along with Dallas Conrad and Norman Koch.

After obtaining a warrant, Detective Lively searched for drug-related communications and information on appellee's cell phone. He read text messages stored on the phone, both sent and received, and transcribed the messages that he considered to be indicative of drug sales activity. These included the following outgoing messages, which were sent between March 15 and 21, 2009:

To “Pam”: “I got a nice gram of that gd Julie to get rid of dude didn't have enuff cash so I had 2 throw in but I can't keep it 8og.”

To “Matt”: “Can I get that other o from u”

To “Tiff”: “Sorry I didn't wait I wanted 2 smoke but call me then if u r cuming out.”

To “Pam”: “Not lookn good on my end can u get a g 4 me”

To “Pam”: “no go 2 nite he only could split a ball w me but I got a new hook up and its cheap”To “Brian”: “Call me I nd trees”

To “Pam”: “If do happen to cum across any 2 nite let me know this is not that gr8”

Detective Lively subsequently testified at trial that he believed these messages reflected drug sales activity due to references he understood from his training and experience: “Julie” refers to cocaine, an “O” is an ounce of drugs, “G” is a gram of drugs, “trees” refers to marijuana, and a “ball” is about 3.33 grams of cocaine, a common quantity about the size of a pool ball, which is also referred to as an “eight ball.”

Along similar lines, Detective Lively transcribed the following incoming messages that were received on appellee's phone between March 18 and 21, 2009:

From “Tam”: “was wondering if u could hook me up then after work”

From “Tam”: “cool I neED a half r u gonna text me then”

From “Tam”: “cool when did u want me to come out”

From “Pam”: “let me know asap”

From “Pam”: [17 minutes later] “sweet how much?”

From “Pam”: [3 minutes later] “K”

From “Pam”: [45 minutes later] “well?”

From “Pam”: [1 minute later] “k”

From “Pam”: [33 minutes later] “hey u”

From “Pam”: [6 minutes later] “can u part with any?”

From “Pam”: [2 minutes later] “tks tree looks good”

Detective Lively interpreted the messages from “Tam” as drug-related, understanding “a half” to mean some manner in which drugs are measured, such as a half an ounce of marijuana, and the terms “hook me up” and “come out” to be arrangements for a sale. Likewise, Detective Lively concluded that the messages from “Pam” reflected a request for a price and, ultimately, a successful deal made for marijuana (“tree”) nearly two hours later the same night.

In light of the foregoing, along with the physical evidence recovered from the search, appellee was charged with felony possession with intent to deliver (PWID) marijuana, both as a principal and an accomplice; criminal conspiracy with regard to the PWID charge; and unlawful possession (of marijuana), a misdemeanor.¹ Dallas Conrad's case was severed from appellee's prior to trial, and Norman Koch's case concluded after a preliminary hearing during which he pled guilty to possession of drug paraphernalia, leaving appellee the only defendant to stand trial.

At appellee's jury trial in May 2010, the Commonwealth called Officer Grove, who testified to the physical evidence of drug activity-marijuana, cash, baggies, and scales—that was found during the search; a forensic chemistry expert who confirmed that the confiscated substances were marijuana; and Detective Lively. When the prosecutor began to question Detective Lively about his interpretation of the text messages on appellee's cell phone, defense counsel, at sidebar, objected to the messages as hearsay, describing them as “unreliable because the phone was shared between two people” and protesting against the detective “read[ing] a conversation between two people that have not been called as a witness [sic].... He cannot testify to the contents of ... a text message if he wasn't a party to it.” The prosecutor responded that the messages were not hearsay because their import was only “that these things were said on this phone ... and that these [statements] would constitute drug receipts, drug statements, and orders.” N.T., Trial, 5/26/10, at 10–75.

The court ruled that Detective Lively could testify about his impression of the messages on appellee's phone to show that, in the prosecutor's words, “[appellee's] phone was used in drug transactions, and, therefore, it makes it more probable than not when [appellee] possessed this marijuana that she did so with the intent to deliver as opposed to personal use.” Defense counsel reiterated his objection, arguing that admission of the contents of the messages invited speculation by the jury as to “who is making those calls,” and was prejudicial to appellee in regards to both the PWID and conspiracy charges. The court overruled appellee's objection but agreed to provide a cautionary instruction based on the outcome of Detective Lively's testimony regarding the text messages. Id. at 76–79.

Thereafter, Detective Lively read aloud and discussed the text messages and his understanding that they were related to drug sales activity; the messages were referred to neutrally as appearing on “this phone” as opposed to “appellee's phone” or to or from appellee herself. The detective's substantive testimony during direct examination focused on terms used in the text messages and his opinion of their drug-related meanings, such as “g's” and “o's” for grams and ounces, “Julie” for cocaine, “ball” for an “8–ball” of cocaine. Id. at 80–89.

During cross-examination, appellee elicited the detective's admission that he had not followed up by attempting to contact the purported recipients and authors of the text messages, whose numbers were in the phone, in order to ascertain whether appellee or someone else was the correspondent. Id. at 105–06. During both direct and cross-examination, Detective Lively testified that although the messages were in a phone that appellee had asserted she owned, he could not determine whether appellee had been the correspondent in the purported drug sales messages. At least one outgoing message, although non-incriminating in its content, suggested that appellee was not the author of certain messages, since appellee was referred to in the third person in an exchange concerning a baked goods fundraiser: “Let me know total, and I'll give [appellee] money 4 u.” Id. at 82–84, 92, 103–06, 128–29. Appellee did not take the stand in her own defense.

The jury convicted appellee of felony PWID (as an accomplice) and the misdemeanor possession charge (also as an accomplice), but found her not guilty of the conspiracy charge. Appellee filed a post-verdict motion challenging...