Pennsylvania Superior Court Affirms Decision Authenticating Defendant’s Social Media Accounts
Grimes was walking to his parked car on 9th and Somerset Streets in Philadelphia when an individual (later determined to be“Jackson”) wearing black clothing and a mask chased him, shot at him, and fled the scene. The perpetrator shot Grimes fourteen times with a .40 caliber gun that had an extended magazine. Video surveillance from a nearby store showed the shooter using his left hand to operate the firearm.
Walton, a friend of both Jackson and Grimes, witnessed the shooting and testified at trial. Walton identified Jackson as the shooter when he met with the Philadelphia Homicide Unit upon being arrested for unrelated charges. Walton testified Jackson called Walton from Jackson’s girlfriend’s phone to ask him to look for Jackson’s phone, which Jackson believed he had lost at the scene of the shooting. Jackson subsequently called Walton back to say that he found it.
Jackson was arrested on May 10, 2019, for Grimes’ murder. At trial, the Commonwealth presented evidence from three Instagram accounts with the following usernames: “cod boosie,” “jackboy_boosie,” and “jackboy_x2.” The Defendant conceded he was the owner of the “cod_boosie” account, but denied ownership of the other two accounts. The Commonwealth presented pictures from the “jackboy_boosie” account and “jackboy_x2” account, which included pictures of Jackson’s nickname, “Boosie,” spelled out in cash, a firearm with an extended magazine, and a video of Jackson holding a gun in his left hand at 9th and Somerset Streets. The video was posted on the internet two weeks before Grimes’ murder. The Commonwealth also introduced the biographical sections of all these accounts, which are all similar to each other, and established the accounts featured pictures of Jackson, taken by both Jackson himself and by others.
A jury convicted Jackson of first-degree murder, and the trial court sentenced him to life in prison. Jackson appealed the trial court’s decision to admit the information contained in the social media accounts. Commonwealth v. Jackson, 2022 Pa. Super 156 (Pa. Super. Sept. 13, 2022). Jackson argued the circumstantial evidence of ownership of the accounts or authorship of the posts presented by the Commonwealth did not satisfy the admissibility requirements under Rule 901901(b)(11).
Pennsylvania Rule of Evidence 901 governs the authentication of evidence, requiring authentication prior to the admission of electronic evidence. See Commonwealth v. Murray, 174 A.3d 1147, 1157 (Pa. Super. 2017).
The proponent of the evidence must introduce sufficient evidence that the matter is what it purports to be. See Pa.R.E. 901(a). Testimony of a witness with personal knowledge that a matter is what it is claimed to be can be sufficient. See Pa.R.E. 901(b)(1). Evidence that cannot be authenticated by a knowledgeable person, pursuant to [Pa.R.E. 901(b)(1)], may be authenticated by other parts of [Pa.R.E. 901(b)], including circumstantial evidence pursuant to [Pa.R.E. 901(b)(4)]. See Pa.R.E. 901(b)(4).
Commonwealth v. Mangel, 181 A.3d 1154, 1160 (Pa. Super. 2018). Pennsylvania Rule of Evidence 901 was amended prior to Jackson’s trial to address digital evidence, including social media posts. See Pa.R. E. 901(b)(11) & cmt.12.
This section provides:
(11) Digital Evidence. To connect digital evidence with a person or entity: (A) direct evidence such as testimony of a person with personal knowledge; or
(B) circumstantial evidence such as:
(i) identifying content; or
(ii) proof of ownership, possession, control, or access to a device or account at the relevant time when corroborated by circumstances indicating authorship.
Pa.R.E. 901(b)(11) & cmt. The proponent of digital evidence is not required to prove that no one else could be the author. Rather, the proponent must produce sufficient evidence to support a finding that a particular person or entity was the author. Pa.R.E. 901 cmt. “Circumstantial evidence of ownership, possession, control, or access to a device or account alone is insufficient for authentication [but such evidence may be enough] in combination with other evidence of the author’s identity.” Id. See also Commonwealth v. Mosley, 114 A.3d 1072, 1081- 82 (Pa. Super. 2015) (authentication of electronic communications requires more than mere confirmation that number or addresses belonged to a particular individual; circumstantial evidence that tends to corroborate the identity of the sender, required).
The proponent of social media evidence must present direct or circumstantial evidence that tends to corroborate the identity of the author of the communication in question, such as testimony from the person who sent or received the communication, or contextual clues in the communication tending to reveal the identity of the sender. The mere fact that an electronic communication, on its face, purports to originate from a certain person’s social networking account is generally insufficient, standing alone, to authenticate that person as the author of the communication.
See In re F.P., 878 A.2d 91, 95 (Pa. Super. 2005); see Mosley, 114 A.3d at 1082. Ultimately, based upon the information contained in the social media accounts, the Superior Court agreed with the trial court that the Commonwealth properly authenticated the Defendant’s social media accounts because there was substantial circumstantial evidence linking the accounts to the Defendant.