As a matter of first impression, text messages are inadmissible hearsay without proper authentication and circumstantial evidence corroborating the identity of the sender.

Text messages admitted into evidence by the trial court constitute inadmissible hearsay. Authentication of electronic communications requires circumstantial evidence that tends to corroborate the identity of the sender. In this case, appellant Amy Koch appealed the judgment of sentence imposed following her conviction of possession with intent to deliver marijuana and possession of a controlled substance as an accomplice. A confidential informant told police that Norman Koch was selling cocaine. Koch resided with his sister, the appellant. During a search of the residence, police found marijuana, cash and other paraphernalia in the house. In addition, the appellant's cell phone was seized. The text messages on her phone were transcribed, and the Commonwealth offered, over objections to authenticity and hearsay, testimony and a transcript of 13 drug-related text messages.

As a matter of first impression, the appellant challenged the admissibility of the text message evidence and what is necessary to authenticate a text message. Here, the appellant claimed that because there was no evidence substantiating that she was the author of the text messages or evidence that the texts were directed to her because there was evidence that another person was using her phone for some of the time. The court noted that electronic communications, such as e-mail and instant messages, can be authenticated under Pa.R.E. 901 and case law. Such evidence is evaluated on a case-by-case basis as any other document. In this case, police could not confirm that the appellant was the author. The court found that "authentication of electronic communications, like documents, requires more than mere confirmation that the number or address belonged to a particular person. Circumstantial evidence, which tends to corroborate the identity of the sender, is required."

Here, there was no evidence to substantiate that the appellant wrote the drug-related text messages, nor was there testimony from persons who sent or received the messages, and no contextual clues revealing the identity of the sender. Accordingly, the court found that the text messages constituted inadmissible hearsay.

Case Law Alert, 1st Qtr 2012