PA Superior Court: Prosecution May Not Introduce Facebook Posts Without Proving Defendant Authored Posts

When can the prosecution use Facebook messages against the defendant?

 Criminal Defense Attorney Zak Goldstein

Criminal Defense Attorney Zak Goldstein

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Mangel. In Mangel, the Superior Court held that the trial court properly denied the Commonwealth’s motion to admit supposedly incriminating Facebook messages against the defendant because the Commonwealth failed to prove that the defendant wrote the messages. 

Commonwealth v. Mangel

Mangel involved the assault of a man at a graduation party.  Prosecutors charged the defendant with Aggravated Assault, Simple Assault, and Harassment after the complainant told police that several fights ensued as a result of multiple people arriving uninvited at the party. The complainant stated that as he was walking away from the fights, he was struck in the back of the head, knocked to the ground, and repeatedly punched and kicked by the defendant and a co-defendant. The complainant did not know either defendant and had not spoken with them during the party, but he was able to identify them after family members showed him Facebook photos of the defendants. The complainant suffered facial lacerations, broken bones, and lost several of his teeth during the assault. 

The Admission of Facebook Evidence

In order to prove the case against Mangel, the prosecution sought to obtain his Facebook records. The prosecution obtained a court order directing Facebook to provide records to them. The Commonwealth then filed a Motion in Limine asking the trial court to permit the introduction of screenshots of certain pages of a Facebook account for a “Tyler Mangel.” The screenshots showed various online and mobile device Facebook messenger messages. The Commonwealth also sought to introduce a photograph from the Facebook account of bloody hands which had been posted by a different individual on the Tyler Mangel page.

The trial court conducted a hearing on the Motion in Limine. At the hearing, an Erie County Detective attempted to authenticate the messages and photos for the Commonwealth. After being qualified as an expert witness in computer forensics, the detective testified that she had been asked to determine the owner of the Tyler Mangel profile page by the prosecution. In order to do so, she searched Facebook for the name Tyler Mangel. She testified that only one result appeared. She then compared that page to the screenshots that the prosecutors had given to her. She determined that both the screenshots and the page that she found bore the name Tyler Mangel, listed the account holder as living in Meadville, PA, and that some of the photographs on both the screenshots and the Facebook page were the same. The about section of the page also provided that the individual attended Meadville High School and that the username associated with the Facebook account was Mangel17.

The detective requested subscriber records from Facebook. Using those records, she determined that when the owner of the account created it, that person provided the name Tyler Mangel and email addresses with the name Mangel in them. The account was also linked to a specific cell phone number. The detective obtained a court order for Verizon records and traced the cell phone number to Stacy Mangel and a specific address in Meadville, PA. The court took judicial notice that this was the same address listed as the address for the defendant in the Criminal Complaint.

The detective concluded that the screenshots the Commonwealth wanted to introduce must have come from that account because both accounts 1) had the same name, 2) listed the account holder as living in Meadville, 3) listed the account holder as having attended the same high school, and 4) displayed photographs of the same individual. The trial court, however, asked the detective if she could provide that opinion to a reasonable degree of computer and scientific certainty that the account belonged to the defendant and whether the detective could testify that no one else accessed and posted things on the account. The detective testified that she could not provide that opinion with any certainty.

In addition to not being certain that no one else could have owned or used the Facebook account, the detective also confirmed that she did not obtain an IP address for the Facebook account. The defense lawyer also searched for the same name on his own phone and found five listings for Tyler Mangel. Finally, the detective did not link the cell phone information which she had obtained to the defendant.

The trial court denied the Commonwealth’s Motion in Limine to admit the Facebook evidence, and the prosecution appealed. The Superior Court affirmed the decision of the trial court. The Court found that the prosecution had simply failed to prove that the account belonged to the defendant, that the defendant had sent the messages in question or posted the pictures, and that the account could not have been used by someone else to do so. The Court also dismissed the Commonwealth's argument that the detective should not have been required to testify to a reasonable degree of certainty, noting that it is well-settled that all expert witnesses must be able to provide their opinions to a reasonable degree of certainty in the relevant field of study. 

The Authentication of Facebook Messages in a Criminal Case

The Superior Court noted that there is relatively little case law in Pennsylvania on authenticating Facebook evidence and text messages in criminal cases. In general, Pennsylvania Rule of Evidence 901 provides that authentication is required prior to the admission of evidence. The party that seeks to introduce evidence must show to the court that the evidence is what it purports to be. In some cases, that can be shown through the testimony of a witness with personal knowledge. For example, had a friend testified that they had watched the defendant access the Facebook account, that could have been sufficient to show that it was the defendant’s account. Here, the prosecution had no direct evidence or witnesses with personal knowledge that could link the account to the defendant.

When the party seeking to admit the evidence does not have a witness with personal knowledge, the evidence may be authenticated through circumstantial evidence. Circumstantial evidence involves the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances surrounding it.

Here, the circumstantial evidence simply did not prove to a sufficient degree of reliability that the account belonged to the defendant or that the defendant had posted the information which the prosecution sought to introduce. Facebook accounts, like email and messaging accounts, can be accessed from any computer or smart phone with the appropriate user identification and password. The Court noted that social media presents unique challenges because of the great ease with which a social media account may be falsified. A legitimate account may also be accessed by an imposter.

In some cases, there may be sufficient circumstantial evidence with which to authenticate a social media account. Therefore, the Court ruled that social media evidence must be evaluated on a case-by-case basis to determine whether or not there has been an adequate foundational showing both of its relevance and its authenticity. The proponent of the evidence must show either direct or circumstantial evidence that tends to corroborate the identity of the author of the message or post. This could include testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender. For example, if a message from the defendant's account arranged a meeting with a witness and then the defendant showed up to the meeting, the circumstantial evidnece would suggest that it was the defendant's account. However, social media can easily be hacked and forged, so the mere fact that an account has a person’s name or photo on it is simply insufficient to show that the account belongs to that person. The party introducing the evidence must be able to show more than that. 

Here, the trial court properly prohibited the admission of the evidence because the prosecution showed only that the account appeared to belong to the defendant. The defendant never admitted ownership of it, and the prosecution did not call any witnesses to testify that they had communicated with the defendant using that account. Anyone could have created the account, added photos, and claimed that they went to Meadville High School and were Tyler Mangel. The prosecution also failed to provide date and time stamps to show when the posts were created, and the posts were ambiguous and did not clearly reference the allegations in the case. Accordingly, the Superior Court agreed with the defense attorney that the evidence was not sufficiently relevant and authentic. Therefore, it upheld the trial court’s ruling excluding the Facebook screenshots.


 Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

Philadelphia Criminal Defense Lawyers Zak Goldstein and Demetra Mehta

If you are facing criminal charges, we can help. Our Philadelphia criminal defense lawyers have successfully defended thousands of cases in state and federal courts throughout Pennsylvania and New Jersey. We offer a complimentary 15-minute criminal defense strategy session to any potential client who is facing criminal charges or who may be under investigation by law enforcement. Call 267-225-2545 to speak with an experienced and understanding defense attorney today. 

PA Appellate Court Again Recognizes False ID to Law Enforcement Statute Requires Police to Explicitly Inform Defendant That They Are the Subject of an Official Investigation

 Philadelphia Criminal Defense Lawyer Zak Goldstein

Philadelphia Criminal Defense Lawyer Zak Goldstein

False Identification to Law Enforcement 

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Kitchen. In Kitchen, the court once again recognized that Pennsylvania’s False Identification to Law Enforcement Statute requires the Commonwealth to prove that the officer specifically informed the defendant that he or she was the subject of an official investigation prior to the defendant providing false identifying information to the officer. The court once again rejected the Commonwealth’s argument, which has been made repeatedly in prior cases, that the Commonwealth may prove a violation of the statute by showing that a defendant should have inferred the existence of an official investigation.

Commonwealth v. Kitchen

In Kitchen, Philadelphia police pulled the defendant over for making a right turn without activating her turn signal. The defendant pulled over, and police approached the vehicle. The officer testified that he asked the defendant for her license, registration, and insurance. The defendant did not have any paperwork for the vehicle, and she told the officer that she had rented the car. She also could not provide any paperwork for the car rental. After failing to provide any paperwork to the officer, the defendant gave the officer a fake name.

After the fake name she gave came back as a person with a suspended driver’s license, the officer decided to impound the vehicle. The officer used Philadelphia’s Live Stop procedure and called the Parking Authority to come tow the car. The officer removed the defendant from the car and conducted an inventory search of it. The officer found 76 packets of crack cocaine during the inventory search as well as a driver’s license with a different name on it from the name that the defendant had provided. The officer found additional packets of cocaine and some money throughout the car.

After finding more drugs and what may have been the defendant's real driver's license, the officer questioned the defendant further about her name. He told her that he believed that the name she had previously provided was actually the name of her girlfriend and that he had discovered that both the name provided and the name on the driver’s license he had found had suspended licenses. By this point, he had removed her from the vehicle and placed her in handcuffs, but she continued to give a fake name. The officer eventually arrested the defendant and charged her with Possession with the Intent to Deliver, False Identification to Law Enforcement, and related charges.

Is It a Crime to Give a Police Officer a Fake Name? 

The defendant was found guilty of all charges in the trial court after the trial court ruled that she should have inferred from the circumstances that she was under official investigation for a violation of law. The defendant appealed, and the Superior Court reversed the conviction for False ID to Law Enforcement. Pennsylvania’s False ID statute simply does not make it a crime to merely provide police with a fake name. Instead, the statute provides:

A person commits an offense if he furnishes law enforcement authorities with false information about his identity after being informed by a law enforcement officer who is in uniform or who has identified himself as a law enforcement officer that the person is the subject of an official investigation of a violation of law.

Thus, the statute requires that a defendant first be informed that the person is the subject of an official investigation of a violation of law. Trial courts and prosecutors have frequently tried to argue that defendants should be expected to infer that they are under official investigation for a violation of law from the circumstances, meaning that if a defendant is placed in handcuffs and interrogated by police officers, the defendant should realize that they are under investigation and therefore be able to violate the statute. The courts have rejected this theory repeatedly. Instead, as the court again recognized in Kitchen, the statute requires the police to actually speak to the defendant and explicitly tell them that they are under official investigation for a violation of law. If the officer does not testify to having made that statement to the defendant, then a defendant cannot be properly convicted of False ID to Law Enforcement for providing a fake name or other incorrect identifying information. The Pennsylvania Supreme Court had already reached this conclusion in the case of In re D.S., and here, the Superior Court found that the rule still applies. Accordingly, the Court reversed the defendant’s conviction for false identification to law enforcement.

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 Criminal Defense Attorneys

Criminal Defense Attorneys

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Merely Getting Arrested Is Not a Probation Violation

 Philadelphia Criminal Lawyer Zak Goldstein  

Philadelphia Criminal Lawyer Zak Goldstein  

Is Getting Arrested a Probation Violation? 

The Superior Court has just decided the case of Commonwealth v. Moriarty, finding that violation of probation counsel was ineffective in failing to challenge the trial court’s finding that the defendant violated his probation solely by incurring an arrest on new charges. Moriarty involved the appeal of a Post-Conviction Relief Act (“PCRA”) Petition. 

Commonwealth v. Moriarty

In Moriarty, the defendant first pleaded guilty to Recklessly Endangering Another Person and Resisting Arrest. Pursuant to the negotiations, the trial court sentenced the defendant to one to twenty-three months and twenty nine days of incarceration on the REAP charge and one year of consecutive probation on the Resisting Arrest charge. The court then immediately paroled the defendant, thereby releasing him from custody. The terms of the probation and parole provided that he would commit a violation thereof by committing any other crimes. 

Daisy Kates Motions

The defendant was subsequently arrested on a new case and charged with Aggravated Assault and Terroristic Threats. The defendant’s back judge immediately lodged a probation detainer and appointed a defense attorney to represent the defendant. The Commonwealth, likely fearing it would not be able to prove its case beyond a reasonable doubt, filed a motion to revoke probation prior to the resolution of the defendant’s new Aggravated Assault case. This type of motion is called a “Daisy Kates” motion. A Daisy Kates motion asks the back judge to find the defendant in violation even though the defendant has not yet been convicted in the new case.

The constitutionality of these motions is currently debatable in light of the recent Pennsylvania Supreme Court case of Commonwealth v. Arter, but the defense failed to raise that issue in this case. The burden of proof in these types of probation hearings is lower than the beyond a reasonable doubt standard of a criminal trial. Instead, the Commonwealth must show that the defendant committed the crimes charged only by a preponderance of the evidence, which is a much lower standard. It is not uncommon for prosecutors to proceed in this manner when they have concerns that they may not be able to obtain a conviction at trial. These hearings are outrageously unfair both because the burden of proof is lower and the judge who will rule on the defendant’s guilt knows that the defendant has committed crimes previously and is on probation. Thus, the judge is already prejudiced against the defendant prior to hearing the evidence because the defendant was on the judge’s probation at the time that the defendant picked up the new case. 

The probation court scheduled a Daisy Kates hearing while the new charges were still pending against the defendant. At the hearing, the defendant’s back judge asked defense counsel if he wished to say anything on behalf of the defendant. Counsel responded that he had consulted with his client and the probation department and that he agreed with the actions that would be taken. In other words, counsel agreed that the defendant should be found in violation of his probation and parole. The judge asked the defendant if he acknowledged the violations of his probation or parole, and defense counsel interjected that the violations were that he had been arrested on new charges. The defendant agreed, so the court found him in violation of his probation and parole and sentenced him to his back time followed by an additional year of probation on the Resisting Arrest charge.

Ineffective Assistance of Counsel

Of course, the defendant was eventually acquitted in the new Aggravated Assault and Terroristic Threats case which served as the basis for the supposed probation violation. The defendant promptly filed motions seeking immediate parole, reconsideration of his sentence, and a Post-Conviction Relief Act Petition alleging that probation counsel had been ineffective in failing to challenge the alleged probation violation. The court granted the motion for immediate parole but denied the other motions, including the PCRA Petition. The defendant appealed.

The Appeal

On appeal, the Superior Court found that probation counsel had in fact provided ineffective assistance of counsel in failing to challenge the alleged probation violation. Counsel was ineffective because the Commonwealth proved only that the defendant had been arrested on new charges and waived the preliminary hearing on those charges.

In order to win a PCRA based on the ineffective assistance of counsel, a petitioner must show that counsel was ineffective, counsel lacked a reasonable, strategic basis for the actions taken in the representation, and that the petitioner was prejudiced due to the counsel’s failures. Here, the Superior Court concluded that counsel was ineffective in failing to challenge the probation violation.

An Arrest Is Not a Probation Violation

First, the Superior Court noted that an arrest, standing alone, does not constitute a probation or parole violation under Pennsylvania law. This is true even where a defendant waives the preliminary hearing as a preliminary hearing does not end in a finding of guilt. Instead, the Commonwealth must introduce at least some evidence beyond the mere arrest and waiver of a preliminary hearing to show that a violation of probation occurred. Typically, the Commonwealth must call at least some live witnesses to show that the defendant committed a crime. Here, the Commonwealth did not introduce any other evidence, so counsel was ineffective in conceding a probation violation based on an arrest alone.

Second, the Court held that the defense lawyer had no reasonable, strategic basis for failing to challenge the violation. Although defense counsel testified that he had recommended conceding the violation so that the defendant would be sentenced and thereby become eligible for work release, it actually turned out that the defendant was not eligible for work release under the general terms of work release enacted by the County Prison. Thus, the defendant gained nothing other than a 23 month jail sentence by failing to fight the alleged probation violation.

Third, the Court held that the defendant was prejudiced because he was sentenced to jail. Had the defendant asked the trial court to defer the probation violation hearing until the new case was resolved or challenged the Commonwealth’s ability to prove that he committed a crime, the defendant may have been released without any additional sentence. Notably, the Court suggested that it is preferable that probation violation hearings not take place until new charges are resolved because of the possibility that a defendant could be found in violation at a Daisy Kates hearing for committing a crime for which the defendant will later be acquitted at trial.

Given that the defendant established all three prongs of the test, the Superior Court granted the PCRA and vacated the trial court’s order revoking probation and re-sentencing him. The Superior Court went further and found that the defendant did not violate his probation. Therefore, it ordered the trial court to re-instate the original sentence and provide the defendant with time credit towards that sentence for the time spent in custody.

Award-Winning Philadelphia Probation Violation Lawyers

 Philadelphia Criminal Defense Attorneys

Philadelphia Criminal Defense Attorneys

If you or a loved one are facing a potential probation violation or probation detainer, we can help. In many cases, it may be possible to have the detainer lifted pending the resolution of a new case or to seek alternatives to incarceration for established violations of probation. Our Philadelphia criminal defense attorneys have successfully helped thousands of clients navigate Gagnon I and Gagnon II probation hearings. We are also able to provide sueprior We offer a free criminal defense strategy session to any potential client. Call 267-225-2545 to speak with an experienced and understanding advocate today.

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