Amanda concentrates her practice...Read More by Author
Authenticating Text Message Evidence in Protection from Abuse Cases
In 2020, the Pennsylvania Superior Court heard an appeal in Tomasovich v. Tomasovich. The Court recently issued an opinion in the matter¹, which provides guidance to attorneys and pro se litigants seeking to admit text messages as evidence in Protection From Abuse (“PFA”) cases.
To provide some brief background, Appellant, Kathleen G. Tomasovich (“Kathleen”), appealed a three-year Protection From Abuse Order entered on January 22, 2020, in favor of Appellee, Kaitlyn M. Tomasovich (“Kaitlyn”). Kathleen’s son was married to Kaitlyn at this time and they shared a 15-month old daughter. At the final PFA hearing, Kaitlyn testified to the ongoing harassment she experienced. The Court noted a number of specific instances, including:
- August 2019 – While Kaitlyn was packing the car outside Kathleen’s home, Kathleen came outside screaming and slammed Kaitlyn’s arm in the car door.
- October/November 2019 – Kaitlyn was involved in a very serious car accident on her way to work when her brakes completely failed at a stoplight. Weeks later, Kathleen texted Kaitlyn implying she was responsible for the car tampering.
- Fall 2019 – Kathleen stalked Kaitlyn for months, called her in the middle of the night, followed Kaitlyn to and from work, sent threatening text messages, and showed up repeatedly uninvited at Kaitlyn’s home.
In Kathleen’s appeal of the final PFA, the Superior Court examined, among other issues, 1) whether two text messages allegedly sent by Kathleen should have been admitted as evidence and 2) whether Kaitlyn should have been allowed to testify about the contents of text messages allegedly sent by Kathleen instead of presenting the documents themselves.
The Superior Court ruled against Kathleen and found the text messages were properly admitted as evidence. In its opinion, the Superior Court highlighted that the purpose of the PFA Act, to protect victims from imminent harm or abuse, required “some flexibility” in the admission of evidence. The Court looked to Pennsylvania Rule of Evidence 901, indicating that emails and text messages are subject to the same authenticity requirements as non-electronic documents. Thus, “a document may be authenticated by direct proof, such as the testimony of a witness who saw the author sign the document” or it can be authenticated by circumstantial evidence. In this case, the circumstantial evidence that supported the authentication of the texts messages included testimony 1) that the content of the messages was similar to that of other messages, 2) confirming the messages were sent from the number associated with Kathleen, and 3) that the timing of the messages was consistent with particular events. Any testimony elicited from a witness attempting to authenticate texts through circumstantial evidence should bear this in mind.
The Tomasovich case is a reminder that introducing and admitting text messages as evidence in a PFA case is a complicated matter. If you want more information about Tomasovich, read Amanda’s full case note in the summer edition of the PBA’s Pennsylvania Family Lawyer newsletter. If you have questions about your own PFA case, whether prosecuting or defending one, the attorneys at Obermayer Rebmann Maxwell & Hippel are experienced and ready to help.
¹ Tomasovich v. Tomasovich, 349 MDA 2020 (Pa. Super. 2021) (Unpublished Disposition).
The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.