Bail Revocation; Best Evidence Rule – Screenshots of Text Messages

Commonwealth v. Talley, 236 A.3d 42 (Pa. Super. 2020), allocatur granted March 9, 2021, appeal docket 14 MAP 2021

In this case, the Pennsylvania Supreme Court will consider the Commonwealth’s burden of proof at a bail-revocation hearing and the scope of the Best Evidence Rule as applied to screenshots of text messages offered as evidence.

Following the dissolution of her relationship with Appellant Talley, Ms. Nesbitt began to receive threatening and harassing text messages and e-mails from unfamiliar addresses. Ms. Nesbitt stated that she had never received such messages prior to leaving Talley and did not know of any grudges that anyone else might hold toward her at that time. Based on the content, the messages appeared to be intended to lead Ms. Nesbitt to believe the messages were being sent from her child’s biological father; however, the father testified that he did not send the messages and Ms. Nesbitt confirmed that there was no animosity between her and the father at the time the messages were sent and that the father was in her presence and she did not observe him sending any messages at those times. The trial court summarized the relevant subsequent events as follows:

On June 2, 2017, Ms. Nesbitt received a text message saying that the sender was observing her at a Friendly’s restaurant. Ms. Nesbitt was, in fact, at a Friendly’s restaurant with her daughter and a friend when she received this text message. Ms. Nesbitt went to the Springfield Police Department to report this incident. An investigation of her [telephone] by Detective Robert Chiarlanza revealed that an application on her [telephone], unbeknownst to her, was sharing her location with “Daniel Talley.”

Ms. Nesbitt continued to receive vulgar, harassing and, at times, threatening text messages every day, multiple times a day until approximately mid-July 2017. She estimated that she received hundreds of messages of this nature during that time. The messages referenced elements of [Appellant’s] and Ms. Nesbitt’s prior sexual relationship that only [Appellant] knew about, such as when [Appellant] would pressure Ms. Nesbitt to have anal sex with him. The messages also used expressions that were specific to [Appellant], such as “fake love,” an expression [Appellant] would often use when accusing Ms. Nesbitt of cheating on him. Ms. Nesbitt repeatedly asked the sender of the messages to stop sending her messages. On June 14, 2017, Detective Chiarlanza confronted [Appellant] at his home and warned him to stop sending Ms. Nesbitt threatening and harassing text messages.

On June 19, 2017, Ms. Nesbitt received a message with the subject “Tick tock” which read, in part, “It gonna happen, slut. You gonna pay. Comin’ soon mybe on Fox stet. You seem to like it der.” Ashley-Lynn Donnelly, a friend and neighbor of Ms. Nesbitt, testified that on the night of June 19, 2017, between 11:30 p.m. and midnight, she was sitting on a neighbor’s porch on Plymouth Avenue when she saw [Appellant’s] truck idling [without its headlights]. It began driving up and down Plymouth Avenue. After passing her a third time, she heard two loud bangs and she then went inside. She suspected these bangs may have been gunshots. Ms. Donnelly sent Ms. Nesbitt a text that night [saying] that [Appellant’s] truck was near Ms. Nesbitt’s parent’s house where Ms. Nesbitt was staying. The following day, June 20, 2017, Ms. Nesbitt noticed a bullet hole in her vehicle.

On June 20, 2017, Detective Chiarlanza went to investigate a report that a car was shot on Plymouth Avenue. His investigation revealed that “there was a bullet hole on the driver’s side that entered into the passenger compartment behind the rear door.” A small bullet fragment was recovered from the rear passenger compartment of the vehicle. That same day the police obtained and executed two search warrants for [Appellant’s] home and an arrest warrant for [Appellant]. [Appellant] was in the driveway of his residence next to his truck armed with a loaded Kel-Tec .380 semiautomatic pistol when the police arrived. Detective Chiarlanza testified the gun in [Appellant’s] possession was capable of producing a bullet hole similar to the one found in Ms. Nesbitt’s vehicle.

Investigation of [Appellant’s] home revealed a security camera. The video from the night of June 19, 2017 showed [Appellant] entering his home at 11:56 p.m., shortly after the time Ms. Donnelly testified [Appellant] was driving his truck on Plymouth Avenue when she heard two loud bangs. [Appellant] lived only a few blocks from where the shooting occurred and had time to return home within a few minutes of the shooting.

A search of [Appellant’s] computer revealed that he had searched the internet for terms including, inter alia, “VPN [Virtual Private Network],” “Torproject.org” and “Private Internet access.” [Appellant] had searched for these terms on June 16, 2017, two days after Detective Chiarlanza first visited [Appellant’s] house. Using a VPN and Tor, a web browser, allows a person to [conduct anonymous searches] or hide their online presence and activity. [Appellant] also had a virtual machine installed on his computer allowing him to conceal any activity conducted on that computer by completely compartmentalizing that activity within the virtual machine so that it could later be deleted without a trace. Analysis of [Appellant’s] computer further revealed that he had been learning how to send e-mails from fictionalized e-mail addresses to cellular telephone numbers using a website. There was also evidence that on June 20, 2017, [Appellant] accessed the online schedule that Ms. Nesbitt used for her job.

An extraction of [Appellant’s cellular telephone] data revealed deleted text messages to a David Wolf which included, inter alia, a message asking “Is there a way to spam a [cellular telephone] with so many texts and call[s] it just totally fucks it up?” When Mr. Wolf responded that this would likely be illegal and could easily be traced, [Appellant] stated “That’s what TOR is for.” Mr. Wolf then responded, “I guess. Then you’d have to find an online script that sends SMS [short message service] anonymously, and will accept input from an anonymized browser.”

Ms. Nesbitt did not receive any more threatening or harassing messages after [Appellant’s] arrest on July 18, 2017 when he no longer had access to [cellular telephones] or computers.

[Appellant testified in his own defense and] denied sending any of the subject messages[. He also] testified that such messages had been coming from Mr. McClellan for months before [Appellant’s] breakup with Ms. Nesbitt. He testified that there was animosity between Ms. Nesbitt and Mr. McClellan and that Ms. Nesbitt was afraid of Mr. McClellan. [Appellant] also testified that the virtual machine installed on his computer was to avoid viruses when his daughter used the computer to play games. The VPN, he explained, was required for work. Detective Chiarlanza testified in rebuttal that based on his experience and similar investigations it was not feasible the VPN software [Appellant] installed on his computer was being used for [Appellant’s] employment.

Slip op. at 2-4. Police arrested Talley on July 18, 2017 and a criminal complaint was filed on August 7, 2017. After Talley’s bail was set at $250,000.00, he moved for release on nominal bail on the basis of Pa.R.Crim.P. 600(B) and (D)(2), which permit an individual who has been incarcerated in excess of 180 days from the filing of a criminal complaint to file a written motion seeking release on nominal bail, subject to any nonmonetary condition imposed by the court and permitted by law. The trial court denied Appellant’s motion for release on nominal bail, concluding that no condition, or combination of conditions, could ensure the safety of the community or Ms. Nesbitt. 

During trial, the Commonwealth offered screenshots of the text messages Talley allegedly sent to Ms. Nesbitt and provided the following evidence in support of authentication:

Ms. Nesbitt, as the recipient of the text messages depicted in the screenshots, offered direct authenticating testimony in which she confirmed that the screenshots accurately reflected the messages she received. See Mangel, 181 A.3d at 1162 (recognizing recipient or sender testimony as direct evidence of authenticity). In addition, the Commonwealth proffered circumstantial evidence that identified Appellant as the sender of the messages. Ms. Nesbitt testified that she never received harassing text messages before terminating her relationship with Appellant. Ms. Nesbitt also testified that she received a harassing text message stating that the sender was observing her in a restaurant and police officials were later able to determine that an application installed on her cellular telephone was sharing her location with an individual named “Daniel Talley.” In addition, the text messages received by Ms. Nesbitt referred to specific sexual acts that occurred during intimate moments in the relationship between Appellant and Ms. Nesbitt. Apart from Ms. Nesbitt, only Appellant possessed knowledge of those acts. Id. The text messages received by Ms. Nesbitt also included phrases such as “fake love,” an idiom commonly used by Appellant. Lastly, police officials uncovered software on Appellant’s computer that enabled him to send anonymous text messages. In sum, the Commonwealth introduced direct testimony showing that the screenshots accurately reflected the text messages Ms. Nesbitt received. In addition, the Commonwealth produced circumstantial evidence linking Appellant to the messages received by Ms. Nesbitt, including Appellant’s access to a device capable of sending anonymous text messages, displays of knowledge known only to Appellant and Ms. Nesbitt, and the use of distinct linguistic phrases commonly used by Appellant.

Slip op. at 30 (internal record citations omitted). The trial court accepted the screenshots into evidence, concluding that the original text messages were electronically stored information which represented data stored on the devices of both the sender and recipient, as well as on the servers of the service providers; therefore, the screenshots of the text messages received by Ms. Nesbitt were printouts of the electronic communications she received, which fell within the definition of an original writing under Rule 1001(d). The trial court also rejected Talley’s claim that only access to full downloads of the text messages received by Ms. Nesbitt, with accompanying access to related metadata, would facilitate authentication of the screenshots as accurate reproductions of original material. In particular, the court noted Ms. Nesbitt’s testimony in which she confirmed that the screenshots accurately reflected the messages she received. Thus, the trial court determined that the omission of metadata from the printed screenshots did not preclude their admission into evidence as originals pursuant to Pa.R.E. 1001(d) and 1002.

Finally, since the screenshots were generated as digital photographs of the original text messages, a reliable form of reproduction recognized in Rule 1001(e), the court suggested in the alternative that the screenshots were properly admitted as duplicates under Rule 1003. Following trial, the jury found Talley guilty of two counts of stalking, pursuant to 18 Pa.C.S.A. § 2709.1(a)(1) and § 2709.1(a)(2), and one count each of terroristic threats (18 Pa.C.S.A. § 2706(a)(1)) and harassment (18 Pa.C.S.A. § 2709(a)(2)).

Talley appealed to Superior Court alleging that the trial court improperly denied nominal bail pursuant to Pa.R.Crim.P. 600(D)(2) because the Commonwealth failed to present witnesses or offer other proof that no condition or combination of conditions could reasonably assure the safety of the victim or the community. Therefore, Talley argued, the Commonwealth failed to meet its burden of proof at the bail hearing. The Commonwealth countered that the following conduct met the criteria to deny nominal bail:

 (1) Appellant observed Ms. Nesbitt at a Friendly’s restaurant without her consent on June 2, 2017, as evidenced by his text message to that effect, Ms. Nesbitt’s testimony confirming her presence at the restaurant on that date, and forensic evidence showing that Appellant installed an application on Ms. Nesbitt’s cellular telephone which shared, without her consent, the location of her mobile telephone with Appellant; (2) observations made by Ms. Nesbitt’s neighbor of Appellant in his truck in the vicinity of Ms. Nesbitt’s parent’s home between 11:30 p.m. and midnight on the evening of June 19, 2017 when a bullet was fired into Ms. Nesbitt’s vehicle; and, (3) forensic evidence which showed that Appellant accessed, without Ms. Nesbitt’s consent, an online schedule used by Ms. Nesbitt in her employment.

Slip op. at 15.

Talley additionally argued that the trial court erred in admitting screenshots of the text messages depicted on Ms. Nesbitt’s cellular telephone, in contravention of the best evidence rule as adopted in Pa.R.E. 1001, 1002, 1003, and 1004. Talley asserted that neither the screenshots, nor any testimony relating to their content, were admissible since the screenshots did not meet the criteria of “original” writings or “duplicates” under the evidentiary rules and that “the screenshots needed to qualify either as originals or duplicates since the Commonwealth’s ‘entire case against [Appellant] hinged on whether he was the sender of a slew of vulgar and anonymous text messages” and Appellant’s defense centered on his claim that ‘he was not the sender, but that, in fact, his [former]-girlfriend Ms. Nesbitt had been receiving similar messages even before [their relationship ended].’” Slip op. at 17. Moreover, Talley argued, that the screenshots omitted certain content found within the messages, including “hyperlinks to a website that could have shed light on who sent the messages” and “important metadata such as a full list of the participants [in] the messages, the source [of the message], the number of attachments, and the start time and time of last activity” and that the police’s failure to secure the original text messages was inexcusable because authorities had both the capability and opportunity to fully download Ms. Nesbitt’s cellular telephone. Slip op. at 18.

Superior Court held that the record contained sufficient evidence to show that no condition or combination of conditions could reasonably assure the safety of Ms. Nesbitt or the community. Specifically, Superior Court emphasized that:

…the affidavit of probable cause linked Appellant to numerous harassing text messages and violent threats issued to Ms. Nesbitt and set forth compelling proof that Appellant used a firearm to damage Ms. Nesbitt’s vehicle. In addition, the trial court learned that house arrest with electronic monitoring was not available prior to sentencing.

Slip op. at 12. Thus, Superior Court concluded that the trial court did not abuse its discretion in refusing Talley’s request for nominal bail.

Superior Court further held that the screenshots were properly authenticated and admitted into evidence, reasoning that Talley’s arguments implicated only the identify of the sender rather than accuracy of content in screenshots, and therefore fell outside scope of best evidence rule as Talley did not claim that omissions in screenshots led to inaccuracies in depiction of substantive content of original text messages, and did not claim that omitted features, including hyperlinks and metadata, were essential in proving the identity of the sender.

The Pennsylvania Supreme Court granted allocatur as to the following issues:

(1) Is the Commonwealth required under Art. I, [S]ection 14 of the Pennsylvania Constitution to produce clear and convincing evidence at a bail revocation hearing in order to meet its burden of proof that there is “no condition or combination of conditions other than imprisonment that will reasonably assure the safety of any person and the community when the proof is evident or presumption great”?

(2) Is it a violation of the Best Evidence Rule to permit the introduction of screenshots of text messages, and supporting testimony thereto, when those screenshots omit portions of the messages, all hyperlinks, and all metadata, and the original was in the possession of the offering party but has never been produced to the non-offering party?

For more information, contact Kevin McKeon or Dennis Whitaker.