Author: Patrick J. Healey
The Pennsylvania Superior Court recently decided a criminal case which could have broad implications in civil matters. In Commonwealth v. Koch, 2011 WL 4336634 (Pa.Super.), a man was charged with possession of marijuana with the intent to deliver. He resided in the same household with his sister, Amy Koch, and another adult. He was arrested after a search of his residence. During the search, police seized marijuana and two cellular phones. When the cell phone was confiscated, Ms. Koch acknowledged that the phone was hers. A detective then downloaded the text messages. He interpreted some of them to be related to delivery of illegal drugs. The messages were taken from the phone and transcribed. Based upon the messages found on the cell phone, Ms. Koch was charged with possession with intent to deliver and possession of a controlled substance as an accomplice.
At trial, the detective testified that he transcribed the text messages, together with identifying information, from the cellular phone belonging to Ms. Koch. There was also testimony that the phone was found on a table, in close proximity to Ms. Koch when she was arrested. However, the detective acknowledged that he could not confirm that she was the author of the text messages. He also stated that it was apparent that she did not write some of the messages. In addition, there was no testimony from anyone who sent or received the text messages. There were also no clues in the drug-related text messages themselves revealing the identity of the sender.
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