Criminal Conspiracy, “Alleged Drug Activity” and Authentication of Evidence

This post examines an opinion from the Superior Court of Pennsylvania:  Commonwealth v. Howard, 2016 WL 5266632 (2016).  The opinion begins by explaining that “Nathan Howard, appeals from the judgment of sentence entered in the Court of Common Pleas of Erie County for his conviction of criminal conspiracy.” Commonwealth v. Howard, supra. The conspiracy charge was filed under 18 PennsylvaniaStatutes and Consolidates Statutes § 903. Commonwealth v. Howard, supra.

The opinion goes on to explain how, and why, Howard was charged with, and convicted of conspiracy:

On April 26, 2014, police officers conducted surveillance of the El Patio Motel in Millcreek Township as part of an investigation of alleged drug activity. N.T. Jury Trial, 1/15/15, at 34-36. Officers received information that an individual known as `NASS’ (Carnell Tinson) had been selling heroin from motel room 123. Id. at 35. While conducting surveillance of the motel, officers observed Appellant and Tinson enter room 123 at 5:07 p.m. N.T. Jury Trial, 1/16/15, at 17, 18, 23. At approximately 7:45 p.m., the officers saw Tinson exit room 123, enter a vehicle, and drive away. Id. at 32-35. Officers followed Tinson but did not apprehend him. Id.

At approximately 8:45 p.m., police officers executed a search of room 123 pursuant to a warrant. N.T. Jury Trial, 1/15/15, at 37. Inside the room the officers found Appellant, another individual, an envelope containing a quantity of heroin approximately half the size of a golf ball in plain view on the bed, a digital scale, lottery tickets, and a duffel bag belonging to Appellant. Id. at 37, 39-40. Inside of the duffel bag was a denim jacket with $1,610 in cash in one of the pockets. Id. Detective Adam Hardner found a cell phone in plain view in a bedroom. N.T. Jury Trial, 1/16/15, at 51-53. Appellant admitted the cell phone belonged to him and consented to a search of the phone. Id.

James Krayeski, a police informant, testified that he had purchased heroin from Tinson on several prior occasions and had contacted Tinson by cell phone to arrange the transactions. Id. at 4-6. Krayeski had Tinson's cell number and gave it to the officers. Id. 4-6, 8. There were two incoming text messages on Appellant's cell phone originating from Tinson's cell phone number. Id. at 53-57. When Detective Hardner read the text messages out loud to Appellant, Appellant stated, `that mother fucker set me up.’ Id. at 54. These text messages, sent at 8:31 p.m. and 8:42 p.m., stated, respectively, `flush the work’ and `they are out back behind the building.’ Id. at 57.

Detective Hardner testified that, in his experience, `work’ is a term that refers to drugs. Id. Lieutenant Michael Nolan of the Erie Police Department Drug and Vice Unit testified that drug dealers typically accumulate large amounts of cash and use lottery tickets as packing material for heroin. N.T. Jury Trial, 1/15/15, at 46-47). Detective Hardner testified that, based on his experience, the text message `flush the work’ would mean `flush the drugs down the toilet because the police are there.’ N.T. Jury Trial, 1/16/15, at 57.

Commonwealth v. Howard, supra.

The opinion then notes that

[a]fter being found guilty of criminal conspiracy, Appellant filed a post-sentence motion for a new trial. The trial court denied Appellant's motion and filed a memorandum opinion on June 4, 2015. Appellant timely appealed.

Commonwealth v. Howard, supra.

In his appeal, Howard made two arguments:

1) The jury's verdict in this case was against the weight of the evidence.

2) The court erred in admitting the text messages since they were not authenticated by law enforcement as being those of the defendant in accordance with Pennsylvania Rule of Evidence901.

Commonwealth v. Howard, supra.

This post only examines the second argument, e.g., whether the text messages were properly authenticated under Pennsylvania Rule of Evidence 901.  The court began its analysis of that argument by noting that

[a]ppellant next argues the trial court erred in admitting text messages from Appellant's cell phone into evidence as they were not properly authenticated under Pa.R.E. No. 901. Appellant claims that without these messages the Commonwealth could not prove a criminal conspiracy. The messages received on Appellant's cell phone from Tinson's cell phone stated, `flush the work’ and `they are in the back of the building.’ 

Commonwealth v. Howard, supra.

The court then explained that its “standard of review for admissibility of evidence is well-established”, e.g.,

[t]he admission of evidence is solely within the province of the trial court, and a decision thereto will not be disturbed absent a showing of an abuse of discretion. An abuse of discretion is not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias[,] or ill-will discretion . . . is abused.

Commonwealth v. Murray, 83 A.3d 137, 155-56 (Pa. 2013) (citations and quotation marks omitted).

Commonwealth v. Howard, supra.

The Howard Superior Court went on to explain that,

[a]s [Howard] correctly notes, this Court in Commonwealth v. Koch, 39 A.3d 996 (Pa. Super. 2011), in an apparent case of first impression, addressed authentication of a text message as a prerequisite to its admissibility into evidence. We held that emails and text messages are documents subject to the same requirements for authenticity as non-electronic documents generally. The consistent difficulty in authenticating emails and text messages is establishing authorship, as it is generally conceded that cellular phones are not always exclusively used by the person to whom the phone number is assigned.

Accordingly, authentication of electronic communications requires more than confirmation that the phone number or address belongs to a particular person. Authentication requires some evidence tending to show the identity of the defendant as the person who either sent or received the message(s). This may be shown through circumstantial evidence. In Koch, we held that the Commonwealth failed to authenticate the text messages in question, as there were no contextual clues in the messages that revealed that the defendant was the sender. We further concluded that the defendant's physical proximity to the phone was of no probative value as to whether she authored the messages days and weeks before.

Significantly, the Commonwealth conceded it could not confirm that the defendant was the author of the text messages and acknowledged that the defendant did not write some of the messages that referred to her in the third person. The Commonwealth was able to establish only that it accurately transcribed the text messages from the defendant's phone. Without some evidence, even circumstantial, that the defendant sent the messages, we held that the trial court in Koch improperly admitted the messages, since they were not properly authenticated.

Commonwealth v. Howard, supra.

The Superior Court explained why it reached that conclusion, e.g., that

[i]n its memorandum opinion, the trial court held that the text messages were properly admitted into evidence based upon `the phone numbers, relation of the parties, attendant circumstances before and after the texts and distinctive characteristics of the texts in light of the events occurring.’ T.C.O., 6/4/15, at 1 n.1. We find no error as to sufficient authenticity of the text messages as a prerequisite to their admission into evidence in this case. Appellant does not dispute that the messages at issue were sent from the phone owned by Tinson, a known drug dealer. Nor does Appellant dispute the meaning of the messages intended to relate to the recipient that the drugs should be flushed down the toilet, as the police were outside the building.

The question remaining is whether the text messages were intended for and received by Appellant. Sufficient circumstantial evidence exists here to indicate that Appellant was the intended recipient and in fact the recipient of the text messages. The police previously observed Tinson, a known drug dealer, enter the motel room with Appellant. A short time later, Tinson left and thereafter, pursuant to a warrant, the room was searched by police.

Drugs and a cell phone admittedly owned by Appellant were found in the room. When police read the subject messages to Appellant, he did not deny they were intended for him, but rather, tacitly admitted receipt of the messages by his response that Tinson had set him up. Moreover, there is no evidence that anyone other than Appellant and one other person were in the motel room during the relevant time period. The temporal proximity of these events, together with Appellant's admission of ownership and response to the text messages present sufficient circumstantial evidence to authenticate the text messages as intended for and received by Appellant immediately prior to the police entering the motel room.

Although Appellant's second issue as phrased does not contend the trial court erred by admitting text messages that constituted inadmissible hearsay, Appellant did raise the argument in post-trial motions and developed the issue in the argument section of his brief. Because the hearsay issue is fairly contemplated by the overall issue of admissibility of the test messages, we shall address his hearsay argument. See PennsylvaniaRules of Appellate Procedure 2116(a) (`The statement [of questions involved] will be deemed to include every subsidiary question fairly comprised therein.’).

Commonwealth v. Howard, supra.

The Superior Court went on to explain that

[h]ere, the trial court found the texts were admissible as a co-conspirator's statement. See Commonwealth v. Stocker, 622 A.2d 333, 344 (Pa. Super. 1993) (`The co-conspirator exception applies to hearsay statements made during the course of, and in furtherance of a conspiracy. The foundation required is proof, by a fair preponderance of the evidence, that a conspiracy existed’).

Howard argues that the Commonwealth had not met its burden of demonstrating a conspiracy existed before introducing the texts. However, the record shows that Howard and Tinson were seen entering the motel together, that Howard remained in the motel room when Tinson left, and that Howard acknowledged the text messages were intended for him. These factors, combined with the totality of the circumstances surrounding the text conversation, were sufficient to meet the preponderance of the evidence burden of proof of a conspiracy.

Commonwealth v. Howard, supra.

The court therefore held that the

text messages were properly authenticated. Further, the text messages at issue were admissible as an exception to the rule against hearsay since they were statements made by Tinson, a co-conspirator, in furtherance of the conspiracy to possess heroin with intent to deliver. We find no error in the trial court's admission of the text messages.

Commonwealth v. Howard, supra.

The court therefore affirmed the “[j]udgment of sentence.” Commonwealth v. Howard, supra.