PA Superior Court: Tracing IP Addresses at Trial Requires Authentic Evidence and Expert Witnesses

Philadelphia Criminal Defense Lawyer Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has decided the case of Commonwealth v. Manivannan. In Manivannan, the Superior Court reversed the defendant’s cyber-stalking related convictions after finding that prosecutors improperly failed to prove that the defendant was the person who accessed the complainant’s e-mail account without permission. This is an important decision because it continues a trend of Pennsylvania appellate courts recognizing that electronic evidence can easily be fabricated and therefore must be properly authenticated in order to be admitted into evidence.

The Facts of Commonwealth v. Manivannan

In August 2011, the defendant worked at the United States Department of Energy. While employed there, he met and began dating the complainant. The complainant would occasionally use his computer to access her email, but she never gave him permission to access her email account. In November 2013, the complainant ended the relationship with the defendant and began seeing another man.

The defendant did not take the breakup well. By January 2014, the defendant was regularly contacting the complainant through various means of communication despite being asked to stop. On one night, the complainant and her new boyfriend were sitting in her car when the defendant pulled up behind them. The defendant proceeded to follow the two after the complainant drove away. Thereafter, the complainant confronted the defendant and told him that he needed to stop following her.

The defendant continued to engage in this type of behavior. For example, the complainant and her new boyfriend planned a weekend trip to Morgantown, West Virginia. While there, she became aware that the defendant was in the area, as well. Obviously, she became suspicious that the defendant’s presence was not coincidental. She then learned that the accommodation emails she obtained from the hotel were forwarded to her mother, even though the complainant did not send them herself.

The complainant checked the log-in records for her email account and learned that her email account had been accessed twenty-one times from thirteen different Internet Protocol (“IP”) addresses located in various states. She screenshotted the suspicious activity and gave the photos to the police. The police then used a website called Geektools.com to determine which internet service providers owned the IP addresses, and the police then subpoenaed the account information for those IP Addresses from Comcast.

Comcast provided the police with a fax on Comcast letterhead with information stating that the IP addresses used to access the complainant’s e-mail account belonged to the defendant. The defendant was then charged criminally with five counts of unlawful use of a computer and one count of harassment.

The defendant pleaded not guilty and went to trial. At trial, the judge permitted the Commonwealth to introduce the screenshots taken from the complainant’s log-in records despite the defendant’s objection that there was no basis for authenticating that those IP addresses were actually the addresses that accessed the complainant’s e-mail account. The trial court also permitted the Commonwealth to introduce the letter from Comcast. This letter did not indicate an individual author, but it was signed “Comcast Legal Response Center.” The defendant objected to the introduction of this letter because it failed to identify an individual author and it was not an original as required under Rule 1002 of the Pennsylvania Rules of Evidence. To overcome this, the Commonwealth provided a separate, faxed, boilerplate Pa.R.E. 902(11) declaration that was dated on April 18, 2016 that gave no context for the document its signor purported to certify. This document made no reference to the Comcast letter, and the Commonwealth also presented no evidence that the certification it offered had actually accompanied the Comcast letter. The Commonwealth argued that it qualified as a Business Record and thus an exception to the rule against hearsay. After argument, the trial court allowed the introduction of this letter.

The trial court further allowed the police officer and the complainant to testify that the defendant was in Los Angeles, California when someone accessed the complainant’s email account with an IP address that was located in Los Angeles. However, neither the complainant nor the officer were qualified as expert witnesses. At the conclusion of the trial, the jury convicted the defendant, and the court sentenced him to nearly five years of probation. The court also attempted to ban the defendant from the Commonwealth of Pennsylvania, although it later rescinded that unconstitutional provision. The defendant appealed his conviction based on the unreliable electronic evidence, and the Commonwealth appealed the fact that the court did not sentence the defendant to jail time.

The Superior Court Appeal

The Superior Court reversed the conviction. It found both that the Commonwealth failed to properly authenticate the IP address tracking that the police had done and that authenticating these documents required the testimony of an expert witness.

What is the Business Record Exception to the Hearsay Rule?

Typically, hearsay is not admissible in trial. Hearsay is an out of court statement offered to prove the truth of the matter asserted. Hearsay is typically not admissible because it is not trustworthy and because the defense has no opportunity to cross-examine the person that made the statement. However, there are exceptions to the general ban on hearsay. One such exception is the Business Records Exception. This rule allows statements that would otherwise be hearsay to be admitted into evidence if certain requirements are met. The logic behind is the rule these records are inherently reliable because businesses have an interest in having accurate records. It is important to remember that the record does not have to come from the traditional definition of a business. Associations, institutions, non-profit organizations, etc. can all produce documents that qualify as a “business record” for purposes of this rule.

Prosecutors routinely use the Business Records Exception in their cases. In Pennsylvania, there is a five part test that must be satisfied for a statement to qualify as an Business Record: 1) the record was made at or near the time by-or from information transmitted by-someone with knowledge; 2) the record was kept in the course of regularly conducted activity of a “business”; 3) making the record was a regular practice of that activity; 4) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12), or with a statute permitting certification; and 5) neither the source of the information nor other circumstances indicate a lack of trustworthiness (i.e. a document that was made in anticipation of litigation would not be deemed reliable). All of these elements must be met before a document can be entered into evidence.

The Court’s Ruling

In Manivannan, one of the main issues was whether the Commonwealth properly authenticated the Comcast letter. Notably, the Commonwealth failed to present testimony from a custodian of records or other qualified witness. Instead, it attempted to authenticate the Comcast letter using the vague certification. The problem with the certification was that it was not specific. Specifically, the court stated that there was “no discernable correlation between this document and the evidence it purports to authenticate.”

This is very significant because prosecutors frequently attempt to introduce documents under the Business Record Exception without complying with all of the requirements. Here, the court held that the trial court erred when it admitted this letter into evidence. The Court further held that this was reversible error because the letter provided the only direct evidence of the defendant’s connection to the IP address that unlawfully accessed the complainant’s e-mail account.

The Commonwealth Must Present Expert Witnesses to Trace IP Addresses At Trial

The Superior Court also found that the trial court should have required the Commonwealth to present expert witnesses as to the IP address tracing. The court found that lay witnesses cannot draw conclusions from highly technical issues such as ascertaining geographic locations from IP addresses and testify to these conclusions at trial. In Manivannan’scase, the Commonwealth introduced evidence of various IP accounts, testimony about how IP addresses work, and how those addresses were traced back to the defendant without ever offering evidence that the officer or complainant were expert witnesses in the relevant field. The Superior Court rejected the introduction of this testimony without an expert witness, finding that expert testimony is required when the Commonwealth seeks to introduce this highly technical evidence. In other words, subjects such as IP addresses, how e-mail accounts are maintained, the ability to link a physical addresses to an IP address, and other computer science related issues are not common knowledge. Therefore, the trial court should have prohibited this testimony without an expert witness. Accordingly, the court reversed the defendant’s conviction for this reason, as well.

Facing Criminal Charges? We Can Help

Manivannan illustrates that a case can be won or lost based on challenges to the evidence that is allowed to be presented to the jury. If you are charged with a highly technical crime, you need a skilled defense attorney who is up-to-date on the rules of evidence and able to use them to your advantage. Our award-winning Philadelphia criminal defense lawyers have successfully defended thousands of clients at trial and on appeal. We offer a free 15-minute criminal defense strategy session to anyone who is facing criminal charges or under investigation. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today.

Zak Goldstein 6/2/18 Zak Goldstein 6/2/18

PA Supreme Court Finds Autopsy Reports Testimonial under Confrontation Clause

Philadelphia Criminal Defense Attorney Zak Goldstein

The Pennsylvania Supreme Court has decided the case of Commonwealth v. Brown, holding that autopsy reports are testimonial and therefore may not be introduced at trial unless the witness who prepared the report testifies. In this case, however, the court found that the improper admission of the autopsy report was harmless error, so the defendant did not receive a new trial.

The Facts of Commonwealth v. Brown

In Brown, the defendant attended a party on Stanley Street in Philadelphia. Before arriving at the party, he hid a gun in the wheel well of a nearby parked car. The defendant argued with someone during the party, and his co-defendant then retrieved the gun from the car and gave it to the defendant. The defendant shot the person with whom he was arguing four times, killing him. A doctor with the Philadelphia Medical Examiner’s Office performed an autopsy and prepared a report of the findings. The report found that the decedent had been shot four times, the shots struck the ribs, heart, lungs, and shoulder of the victim, and three of the bullets entered the front of the victim’s body while one entered his back. The report also described the trajectory of the bullets in the victim’s body and noted that there was no soot, stippling, or muzzle imprints around any of the gunshot wounds. The report noted that the cause of death was multiple gunshot wounds and the manner of death was homicide.

At the time of trial, the doctor who performed the report no longer worked for the city. The Commonwealth did not call him to testify at the trial. Instead, the Commonwealth admitted the report into evidence by calling a different doctor who had reviewed the report to testify to the other doctor’s report. The defendants objected, arguing that the admission of the report without the testimony of the doctor who prepared it violated the Confrontation Clause of the Sixth Amendment of the United States. Based on the other doctor’s report, the testifying doctor told the jury that the wounds were consistent with a scenario in which someone shot the victim from a distance of six to eight feet away while facing him, and then shot the victim in the back after the victim turned away. He further testified that the victim could have walked a few feet before collapsing.

The jury convicted the defendant of third-degree murder and related offenses, and the court sentenced him to 25 – 50 years in prison. The defendant appealed, and the Superior Court affirmed his conviction. The court first ruled that the report should not have been admitted, but it found harmless error because there was no real dispute about the cause of death.

The Criminal Appeal

The defendants again appealed to the Pennsylvania Supreme Court, and the Supreme Court agreed to review the case. On appeal, the Commonwealth argued that autopsy reports are not testimonial because they are not necessarily created for trial in the same way that a BAC report or drug test report is prepared specifically for trial. Instead, state law requires coroners to prepare autopsy reports regardless of whether there is an ongoing criminal activity. The defendant argued that although some autopsy reports are prepared regardless of whether there is a suspicion of criminal activity, the law requires the coroner to prepare a report in response to any suspicious death and cooperate with the prosecutor. Further, the report in this case was prepared for the prosecution of homicide charges.

What is the Confrontation Clause?

The Pennsylvania Supreme Court agreed with the Superior Court that the report was testimonial and therefore should not have been admitted without the testimony of the doctor who prepared it. The Confrontation Clause, which is part of the Sixth Amendment, provides criminal defendants with the right to confront the witnesses against them. This means that they have the right to cross-examine witnesses under oath at trial.

The Pennsylvania Supreme Court noted that in Crawford v. Washington, the United States Supreme Court created the modern analysis of the Confrontation Clause. The Court barred the admission of testimonial statements of a witness who did not appear at trial unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. Thus, the key question for whether a statement violates the Confrontation Clause is whether the statement is testimonial. In general, statements are testimonial when their primary purpose is to establish or prove past events for purposes of proof at a criminal trial. This means that statements made to police officers who are investigating cases are typically going to be testimonial. Likewise, lab reports prepared to prosecute a criminal defendant at trial will also generally be found to be testimonial. On the other hand, statements which are not made for the purposes of criminal prosecution – such as a phone call to 911 in order to obtain emergency assistance – will often be found non-testimonial.

The Court's Decision

Ultimately, the Court concluded that the autopsy report was testimonial. Pennsylvania law requires the preparation of autopsy reports in all cases of sudden, violent, and suspicious deaths, or deaths by other than natural causes, and in such cases, the autopsy and subsequent report are designed to determine whether the death occurred as the result of a criminal act. The law also requires the coroner to advise and cooperate with the District Attorney. Therefore, the primary purpose of an autopsy report is to establish or prove past events potentially relevant to a later criminal prosecution. Any person creating the report would reasonably believe it would be available for use at a later criminal trial. Therefore, an autopsy report is testimonial.

What is Harmless Error?

At the same time, the Supreme Court concluded that the defendant was not entitled to a new trial because the admission of the report amounted to harmless error. Even where the trial court has made a mistake in an evidentiary ruling, an appellate court may find harmless error where 1) the error did not prejudice the defendant or the prejudice was de minimis, 2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence, or 3) the property admitted and un-contradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Here, the Court found that the error was harmless error because the report was merely cumulative to the properly admitted testimony of the testifying doctor relating to the cause of death. Specifically, it was harmless error because the doctor had reached his own independent opinion regarding the cause of death which did not rely entirely on the inadmissible autopsy report. Further, an expert witness generally may rely on inadmissible evidence if it is the type of evidence that an expert in the field would normally rely on in reaching a determination. Thus, the report itself should not have been admitted, but the doctor was properly permitted to rely on it in reaching his own conclusions. Therefore, the defendant was not entitled to a new trial.

Facing Criminal Charges? We Can Help.

If you are facing criminal charges or may be under investigation by law enforcement, we can help. Our Philadelphia criminal defense attorneys have successfully defended thousands of clients in Pennsylvania and New Jersey. We offer a free 15-criminal defense strategy session to each potential client, and we can help you build a defense to pending criminal charges or evaluate the merits of filing a PCRA or direct appeal. Call 267-225-2545 to speak with an experienced and understanding criminal defense lawyer today.