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

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.

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PA Superior Court: Commonwealth May Not Rebut Claim of Self-Defense by Showing Defendant Has Prior Conviction for Violent Offense

Philadelphia Criminal Defense Lawyer Zak Goldstein

The Superior Court just announced its decision in Commonwealth v. Crosley, holding that the Commonwealth cannot use a defendant’s prior conviction for a violent offense in order to rebut a defendant’s claim that the complainant was a violent person who started the altercation. Instead, testimony to this effect by a criminal defendant in an assault or homicide trial would open the door only to evidence of the defendant’s reputation for violence. This decision limits the Commonwealth’s ability to rebut claims of self-defense in that the Commonwealth may not tell a judge or jury that the defendant has a prior conviction for assault or some other violent crime.

Commonwealth v. Crosley

This case had an unusual set of the facts. It is unclear how the defendant and the decedent met, but at some point the decedent gave the defendant permission to live in his shed. The defendant was not allowed inside the house without permission. When it was cold, the decedent would permit the defendant to live in the basement of the house. Additionally, the decedent was married and had a child living at the residence.

Eventually, the decedent’s wife tired of this arrangement. She wanted the defendant off of the property, so the decedent went and told the defendant that he would have to move out. The decedent’s wife testified that the decedent was unarmed when he went to speak with the defendant.

While she was in the shower, the decedent’s wife heard what she believed to be a gun shot. She instructed her daughter to go check on the decedent. The daughter then went to the basement where she observed the decedent and the defendant struggling for a gun. Upon seeing this, the daughter ran upstairs and told her mother what she saw. The decedent’s wife then went to her window where she observed the defendant chasing the victim and shooting at him. She yelled at the defendant to stop, and the defendant replied that the decedent “takes me for a fool.”  The wife went outside and found the decedent lying on the sidewalk with a bullet hole in his chest. He was alive at this point and taken to a local hospital, where he succumbed to his injuries.   

Police arrested the defendant and questioned him. He waived his Miranda rights and gave a statement to the police. He claimed that he had shot the decedent in self-defense. He further told the police about prior incidents in which the decedent had possessed a gun and threatened the defendant with the gun. He mentioned one specific instance where he had disarmed the decedent and hid the decedent’s gun. He took the police to the location where he had hidden the gun. The police recovered the gun and some ammunition.

Prior Bad Acts in Self-Defense Cases

After the decedent died, prosecutors charged the defendant with Murder, gun charges, and possession of an instrument of a crime. Prior to trial, the Commonwealth filed a Motion in Limine asking the trial court to allow the introduction of the defendant’s existing Aggravated Assault conviction. The trial court held a hearing, and the court ruled that the Commonwealth could introduce evidence of the Aggravated Assault conviction if the defendant took the stand and told the jury that the decedent was a violent person and that he had acted in self-defense. Undeterred, the defendant took the stand and testified that the decedent was a violent person who had attacked him first. The defendant also testified that he, the defendant, never carried a weapon and was not a violent person. The jury convicted the defendant of third-degree murder and the gun charges. The Court sentenced him to a lengthy period of state incarceration followed by a period of probation and also ordered him to pay $7,864.72 in restitution to the Pennsylvania Victim’s Compensation Fund. The defendant appealed.  

What is Character Evidence?

The defendant raised several issues on appeal. First, he argued that the trial court erred in permitting the Commonwealth to introduce evidence of his prior Aggravated Assault conviction in order to rebut his assertion that the complainant was the violent aggressor. In general, character evidence is extremely important in Pennsylvania. Pennsylvania law permits criminal defendants to introduce character evidence to show that they are not the type of person who would commit the crime charged. In other words, a defendant who has no prior record may introduce evidence about his or her law abidingness, truthfulness, and non-violence to show that he or she would not have committed a crime. Under Pennsylvania law, the jury will then be instructed that character evidence alone may be enough for the jury to find reasonable doubt. Typically, in Philadelphia, if a defendant has good character, meaning no prior record, the Commonwealth will stipulate to it and the defendant may not have to call live witnesses to testify to the character evidence. When the defense does call character witnesses, the witnesses must testify only about the defendant’s good reputation for the relevant character traits; the witness may not testify about specific good things that the defendant has done or the witness’s own personal opinion.   

Although the defense may introduce character evidence, the Commonwealth generally may not introduce evidence of a defendant’s bad character or prior criminal history for the purposes of proving that the defendant is a bad person who would commit the crimes charged. The logic behind the rule is that just because an individual committed a crime at some point in their life, it does not necessarily follow that they committed this particular crime. However, there are exceptions to the rule. The Commonwealth may try to introduce evidence of prior convictions through Pa.R.Crim.P. 404(b).   

What is a 404(b) motion?

Although the Commonwealth may not introduce character evidence to show that a defendant committed a crime because he has a character for criminality, the Commonwealth can introduce prior criminal contacts to rebut certain defenses. The rules permit the Commonwealth to file a 404(b) Motion. A 404(b) motion is commonly referred to as a “Prior Bad Acts Motion,” and prosecutors file them to rebut certain defenses such as mistake, fabrication, lack of knowledge. The Commonwealth may also introduce these “bad acts” to show that it was part of the defendant’s Modus Operandi or was part of a common scheme.

Let’s do an example of common scheme. Suppose that an individual is charged with Possession with Intent to Deliver a Controlled Substance, or selling drugs. More specifically, let’s say that he is accused of selling heroin with an X stamp on the package on the southwest corner of D and Allegheny Streets. Let’s also assume that he has a prior conviction for selling heroin with an X stamp on the package on the southwest corner of D and Allegheny Streets from a month prior to the arrest of his current case. If the Commonwealth were to file a 404(b) motion to introduce that prior conviction, they would have a decent argument that the defendant is engaged in a common scheme to sell heroin with X stamps on the package at the southwest corner of D and Allegheny Streets. Technically, this example did not address the defendant’s character. However, if a judge or a jury hears that a defendant has a prior conviction for selling drugs and is currently on trial for selling drugs, it is much more likely that he will be found guilty of the current offense because juries have a very hard time disregarding the fact that the defendant has a prior conviction. Accordingly, these 404(b) motions can make or break a case.    

The Pennsylvania Superior Court Limits the Commonwealth’s Introduction of Character Evidence to Rebut a Claim of Self-Defense

In cases involving crimes of violence, however, the Commonwealth may sometimes introduce character evidence when the defendant raises the issue of self-defense. The prosecution may not introduce this evidence as part of its case-in-chief, but if the defendant introduces evidence that the complainant was the aggressor and a violent person, it opens the door for the prosecution to attack the defendant’s character.

As previously explained, there are different rules for the Commonwealth and defendants when it comes to introducing character evidence. The rule governing character evidence is Rule 405. Typically, as the Crosley court explained, only defendants can introduce specific instances of conduct and this can only be done for alleged victims. As such, a defendant cannot introduce specific instances of conduct to show his character for non-violence. He would need a witness to discuss his reputation for non-violence. However, if a defendant is attacking a victim’s character, he can then use specific examples (i.e. a prior conviction of the witness for assault) to show that the witness was a violent person.

In rebuttal, the Commonwealth may only attack the defendant’s character through reputation evidence. The Commonwealth cannot bring in specific instances (i.e. a prior conviction) to rebut his claim. Therefore, in Crosley, the lower court erred in admitting Mr. Crosley’s prior aggravated assault conviction to rebut his self-defense claim. The Commonwealth would have had to call someone who knew the defendant to speak about his reputation for violence to rebut his self-defense claim.

Unfortunately for the defendant, the Superior Court held that the trial court did not completely err in allowing the Commonwealth to introduce the conviction. The defendant testified at his trial that “[he] never [carries] a weapon.” The problem with this statement is that his prior conviction involved a weapon. Therefore, the Superior Court held that the Commonwealth was allowed to introduce this conviction (which was a guilty plea) to impeach him. The defendant’s other grounds for appeal were also denied. Specifically, there was sufficient evidence to show that he committed third degree murder (as stated above, there was a witness who saw him shooting at the victim) and that the record supported a factual finding that there were costs incurred in trying to save the victim’s life and ultimately the  disposition of his remains.

Call the Award-Winning Criminal Law Office of Goldstein Mehta LLC if You Are Charged with a Crime of Violence

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The rules of evidence can be complicated. If you are facing serious criminal charges, you need a defense attorney who will use them to your advantage. Our award-winning Philadelphia criminal defense lawyers have successfully fought countless cases at trial and on appeal. We offer a 15-minute criminal defense strategy session to any potential client. Call 267-225-2545 to discuss your case with an experienced and understanding criminal defense attorney today. 

PA Supreme Court Agrees Police May Not Search Cell Phone Without Warrant

Zak Goldstein - Philadelphia Criminal Defense Attorney

Warrantless Searches of Cell Phones in Pennsylvania

The Pennsylvania Supreme Court has just decided the case of Commonwealth v. Fulton, agreeing with the United States Supreme Court that law enforcement officers generally may not search a cell phone incident to a defendant’s arrest without first obtaining a search warrant. The Court further concluded that the introduction of the evidence obtained from the illegal search of the defendant’s phone in this homicide case did not amount to harmless error. Therefore, the Court reversed the defendant’s conviction and ordered a new trial.  

The Facts of Commonwealth v. Fulton

On June 15, 2010, Philadelphia police received a call from Michael Toll reporting that he had been shot. Police responded to the call and found Toll in a vehicle on the sidewalk with gunshot wounds on the right side of his body. Toll told the police that Jeff shot him, and he gave them a description of Jeff. Police took Toll to the hospital and searched the car. They recovered a cell phone, and the cell phone showed that Toll had exchanged phone calls with someone listed in the phone as Jeff. Police determined that the number for Jeff was linked to a prepaid phone with no subscriber information.

Toll eventually died from his wounds. On the morning that he died, police received a call concerning drug activity and a man with a gun at a specific address. Police responded to the call and found several individuals in and around a 2002 green Mercury Marquis. The police saw a gun, a gun holster, and cell phones in the vehicle. They arrested the four men who were nearby. One of those men was Fulton, the defendant in this case. Police took a cell phone from Fulton incident to his arrest and obtained a search warrant for the vehicle but not the phone.

The Search of the Phone

The phones were given to Homicide Detectives who were investigating Toll’s death. The detectives opened the phones, turned them on, and examined them in order to determine the phone number associated with each phone. One of the phones turned out to have the same number as the phone number for Jeff that was in the decedent’s phone. Homicide detectives did not obtain a warrant prior to going through the phones. Further, detectives began answering incoming calls to the phone that had been linked to Jeff.

One person called and eventually told detectives that the phone number belonged to Fulton and that she regularly purchased heroin from him. Armed with this information, detectives interrogated Fulton, and Fulton promptly incriminated himself in the shooting. Police obtained a search warrant for Fulton’s residence and found ammunition which was the same as that used in the fatal shooting. Police also interviewed some of the other men who they had arrested along with Fulton and obtained statements from them which implicated Fulton in the murder. Accordingly, police charged Fulton with murder.

The Motion to Suppress

Prior to trial, Fulton moved to suppress the evidence obtained from the warrantless search and use of the cell phone. The trial court denied the motion, but the trial court made its decision prior to the United States Supreme Court’s decision in Riley v. California holding that police must obtain a warrant prior to searching a cell phone. Fulton went to trial and was eventually convicted of third-degree murder and sentenced to 15-30 years of incarceration. Fulton appealed to the Superior Court, and the Superior Court denied the appeal.

By the time of the Superior Court’s decision, the United States Supreme Court had held that police may not search a phone without a warrant. The Superior Court recognized that police should have obtained a search warrant for the phone, but it held that the intrusion into the phone was minimal because police did not review personal data or social media located on the phone. Therefore, the Superior Court held that Riley did not apply. It also found that to the extent that the police violated Fulton’s rights, the introduction of the illegal evidence amounted to harmless error which would not justify overturning the third-degree murder conviction.

Petition for Allowance of Appeal

Fulton filed a Petition for Allowance of Appeal to the Pennsylvania Supreme Court, and the Pennsylvania Supreme Court ultimately overturned the defendant’s conviction. The Court concluded that there was really no dispute. Riley’s holding could not be clearer: in order to access any information on a cell phone, police must first obtain a warrant. The Supreme Court did not create an exception for what police or courts may deem a minimally invasive search of a cell phone. The Court specifically rejected a case-by-case test for searches of phones. Instead, it held that police simply must get a warrant or they cannot use the results of the search of a cell phone in court. Any search of a cell phone requires a warrant.

The Court concluded that homicide detectives conducted three separate searches of the phone without a warrant. First, they searched the phone by powering it on. Second, they searched the phone by going into it and obtaining its phone number. Third, they searched the phone by monitoring incoming calls and text messages.

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Having concluded that the police violated Fulton’s rights by searching the phone without a warrant, the Court next found that the constitutional violation did not amount to harmless error. The Court ruled that all of the evidence that was found due to the searches of the phone must be suppressed. This included the existence of the woman who identified Fulton as a drug dealer, her statement, and the evidence that the phone number was the same number as that for Jeff. Given the extensive use of this evidence against the defendant at trial and the fact that much of the evidence was contradicted and inconsistent, the Supreme Court rejected the idea that the conviction could stand under the harmless error doctrine. Accordingly, the Court vacated the conviction and ordered a new trial for Fulton without the illegally seized evidence. 

PA Superior Court Reverses Robbery Conviction Because Prosecutors Struck Jurors Due to Race

Prosecutors May Not Discriminate Against Jurors Based On Race

Philadelphia Criminal Defense Attorney Zak T. Goldstein, Esq.

The Pennsylvania Superior Court has just decided the case of Commonwealth v. Edwards. The Court reversed Edwards’ multiple convictions for gunpoint robbery after finding that the prosecution improperly struck jurors because they were African American. The Court concluded that the defendant successfully raised a challenge to the prosecution’s decisions during jury selection under the United States Supreme Court’s decision in Batson v. Kentucky.

Edwards was charged with multiple gunpoint robberies and related charges for allegedly robbing five men and shooting one of them. His co-defendant took a plea deal and testified against him in exchange for a reduced sentence, and the jury found Edwards guilty of all of the charges. After he was convicted, he was sentenced to 22 to 44 years of incarceration.

Edwards appealed, raising challenges to the sufficiency of the evidence as well as what is called a Batson challenge. The Superior Court rejected the challenges to the sufficiency of the evidence, but it found that the trial court should have granted the defendant’s motion to seat excluded African American jurors pursuant to Batson. A Batson challenge involves challenging the prosecution’s use of race as a factor in picking and striking jurors during jury selection. In Batson, the United States Supreme Court held that the prosecution violates the Equal Protection Clause of the United States Constitution by striking potential jurors solely on the basis of race.

Batson Challenges

In Pennsylvania, the analysis under Batson involves three stages. First, the defendant must make a prima facie showing that the circumstances give rise to an inference that the prosecutor struck one or more prospective jurors due to their race. Second, when the defense can make such a showing, the burden shifts to the prosecutor to provide race-neutral reasons for why the prosecutor struck the jurors at issue. Third, the trial court must then make the ultimate determination as to whether the defense has proven purposeful discrimination against jurors based on race.

Here, the defendant was able to show that the prosecution had discriminated against the jurors based on race for a number of reasons. First, the trial court used an incredibly suspect method of jury selection in which the list of jurors from which the parties made their peremptory challenges (strikes) included the race and gender of every juror. Second, in making its eight strikes, the prosecutor struck seven African Americans and an eigth non-caucasian potential juror, meaning that every single prosecution strike was of a minority. Third, the Superior Court found that the prosecution’s reasons for striking the jurors were not plausible. For example, the prosecutor stated that the Commonwealth struck jurors because they were joking with each other or because of they way they were sitting. Although those reasons would be facially race-neutral for purposes of the second part of the test, the Superior Court found that the reasons simply were not persuasive given the improper juror list and statistics involved.

Ultimately, during jury selection, the parties considered 30 potential jurors. Of those 30, 13 were African-American. The Commonwealth used seven of its eight strikes on African-Americans, and it used the eighth strike on a member of a different minority group. The Commonwealth did not strike a single white juror. Although statistics alone cannot prove a discriminatory intent on the part of the prosecutor, the Court was appalled by the fact that the prosecution used all eight strikes on minorities and then attempted to explain its decision to do so by stating that it did not like the way one of the potential African American jurors was leaning while sitting. This was particularly true in light of the fact that the trial court had actually instructed the jurors at the beginning of jury selection to sit back and relax because the process would take some time. Thus, the Court found that the Commonwealth’s reason was implausible. The Court reversed the defendant’s conviction and remanded the case for a new trial.

Pennsylvania and United States law prohibit the Government from excluding jurors based on race. In most cases, this rule is difficult to enforce because prosecutors will be able to protect themselves by striking some white jurors. It is also typically easy to come up with reasons for striking the jurors which are unrelated to race. However, where the Commonwealth seems to be engaging in a pattern of racial discrimination during jury selection, it is important to raise a Batson challenge in order to either have the jurors seated or preserve the issue for appeal. It is also important to remember that Pennsylvania law requires the party making a Batson challenge to include on the record the race of the stricken prospective jurors, the race of prospective jurors who were acceptable to the striking party but stricken by the party making the challenge, and the racial composition of the jury seated for trial.

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