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holding that the automated production of GPS data was not a "statement" for hearsay purposes, as there is no declarant
Summary of this case from Commonwealth v. WeedenOpinion
No. 93 MAP 2021
02-22-2023
COMMONWEALTH of Pennsylvania, Appellee v. Jamal WALLACE, Appellant
Meghan Binford, Esq., Julia Sarah Simon-Mishel, Esq., Aaron Michael Sommer, Esq., Philadelphia Legal Assistance, for Amicus Curiae Philadelphia Legal Assistance. Cheryl Ann Brooks, Esq., Jules Epstein, Esq., Peter E. Kratsa, Esq., MacElree Harvey, Ltd., Meredith Ann Lowry, Esq., Klehr Harrison Harvey Branzburg LLP, Defender Association of Philadelphia, for Amicus Curiae Defender Association of Philadelphia and PA Association of Criminal Defense Lawyers. Michelle Ann Henry, Esq., Benjamin Garrett Minegar, Esq., Pennsylvania Office of Attorney General, for Amicus Curiae Pennsylvania Office of Attorney General. Zak Taylor Goldstein, Esq., Goldstein Mehta LLC, for Appellant. Todd N. Barnes, Esq., Robert Martin Falin, Esq., Kevin R. Steele, Esq., Montgomery County District Attorney's Office, for Appellee.
Meghan Binford, Esq., Julia Sarah Simon-Mishel, Esq., Aaron Michael Sommer, Esq., Philadelphia Legal Assistance, for Amicus Curiae Philadelphia Legal Assistance.
Cheryl Ann Brooks, Esq., Jules Epstein, Esq., Peter E. Kratsa, Esq., MacElree Harvey, Ltd., Meredith Ann Lowry, Esq., Klehr Harrison Harvey Branzburg LLP, Defender Association of Philadelphia, for Amicus Curiae Defender Association of Philadelphia and PA Association of Criminal Defense Lawyers.
Michelle Ann Henry, Esq., Benjamin Garrett Minegar, Esq., Pennsylvania Office of Attorney General, for Amicus Curiae Pennsylvania Office of Attorney General.
Zak Taylor Goldstein, Esq., Goldstein Mehta LLC, for Appellant.
Todd N. Barnes, Esq., Robert Martin Falin, Esq., Kevin R. Steele, Esq., Montgomery County District Attorney's Office, for Appellee.
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
CHIEF JUSTICE TODD
Pennsylvania Rule of Evidence 801 defines hearsay as an out-of-court statement made by a declarant, which is offered into evidence to prove the truth of the matter asserted. Pa.R.E. 801. This type of evidence is generally inadmissible at trial unless it falls into an exception to the hearsay rule. See generally Pa.R.E. 803 (setting forth hearsay exceptions). In this discretionary appeal, we consider whether Global Positioning System ("GPS") data (hereinafter, "GPS data" or "GPS records"), compiled from a GPS monitoring device on a parolee, is inadmissible hearsay. For the reasons that follow, we hold that the challenged evidence is not hearsay because it does not constitute a statement made by a declarant, as outlined in Rule 801, as it is not an assertion (or the nonverbal conduct) of a person. Accordingly, we affirm the Superior Court.
See also Pa.R.E. 801(a) (defining a statement as "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion"); Pa.R.E. 801(b) (explaining that a declarant is "the person who made the statement") (emphasis added).
I. Background
On April 6, 2018, Kamaal Dutton was shot and critically injured in the vicinity of Spruce and Willow Streets in Norristown, Montgomery County. Responding officers from the Norristown Police Department found Dutton a few blocks away, where he was observed on the ground, bleeding from the head.
As part of their investigation into the shooting, officers surveyed the area and discovered that several local businesses near where the shooting occurred had video surveillance systems. Police were able to recover videos which depicted, inter alia , two adult males, later identified as Mason Clary and Appellant Jamal Wallace, together in the area during the hours leading up to the shooting. Of significance, video captured Clary and Appellant walking in and out of a local deli, and, at one point, Appellant is seen retrieving a firearm from a vehicle parked just outside. Appellant concealed the firearm in his waistband, although there is a visible bulge on his right side. Eventually, the two men connected with a third individual, later identified as C.S., a minor, who was a neighbor of Clary who lived nearby.
Together, the trio walked to Willow and Spruce Streets, passing Dutton as they approached the intersection. The men then suddenly turned, confronted Dutton, and began to assault him. During the altercation, Appellant retrieved the gun from his waistband, pointed it at Dutton in full view of his companions, and, as Dutton began to flee, chased him while firing multiple shots. The men then fled the scene together, leaving Dutton bleeding on the ground. Dutton sustained a gunshot wound to the side of his face, behind his ear. He was transported to a local hospital for treatment and survived. Initially, Dutton told police that he could not identify the men that attacked him. Later, however, he identified Appellant as one of his assailants.
Through their investigation, police learned that, at the time of the shooting, Clary was wearing a GPS monitoring device on his ankle. Data extracted from this device aided investigating officers in piecing together the whereabouts of Clary and, in turn, Appellant, during the relevant time. Ultimately, both men were arrested and charged with a litany of offenses related to the shooting. Specifically, Appellant was charged with two counts of aggravated assault and one count each of criminal conspiracy, persons not to possess a firearm, and carrying a firearm without a license. See 18 Pa.C.S. § 2702(a)(1), id. § 2702(a)(4), id. § 903, id. § 6105(a)(1), and id. § 6106(a)(1).
Clary was on parole. As a condition of his supervision, he was required to wear a GPS monitoring device on his ankle, which tracked his movements.
C.S. was also charged for his role in the conspiracy and assault. Eventually, C.S.'s case was decertified to juvenile court, and he entered an admission to conspiracy to commit aggravated assault. During the investigation, C.S. cooperated with law enforcement, identifying Appellant and Clary as the two men with whom he conspired to attack Dutton, and admitting that the trio acted in concert to assault him.
Prior to trial, Clary filed a motion in limine , seeking, inter alia , the exclusion of the GPS data collected by police on the basis that the evidence constituted hearsay, which was compiled in anticipation of litigation, see Clary's Motion in Limine, 2/25/2019, at 4, and the trial court held a hearing. At that time, Appellant's counsel presented an oral motion regarding the GPS data from Clary's ankle monitor, informing the court that, if the Commonwealth attempted to introduce this evidence at trial, he would lodge a hearsay objection. N.T., 3/4/2019, at 86. Counsel also explained that it was his understanding that the Commonwealth did indeed plan to present this evidence at trial and that, in response to any objection, it would attempt to introduce the data under the business records exception. It was counsel's position that the records did not meet this exception. Id. at 86-87 (contending that the GPS records "are kept for the purpose of litigation"). Following the hearing, the trial court disposed of the majority of Clary's motions, but informed the parties that any hearsay objections would be addressed contemporaneous to the time they were made during trial. Id. at 87-88.
This exception permits the introduction of
[a] record (which includes a memorandum, report, or data compilation in any form) of an act, event or condition if:
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a "business", which term includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) 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
(E) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
A joint trial for Appellant and Clary began the next day. Relevantly, as part of its case-in-chief, the Commonwealth sought to introduce the GPS records. At that time, consistent with their pre-trial motions, both Appellant and Clary objected to the introduction of the records, reasserting that they were inadmissible hearsay and, as such, that the Commonwealth was obligated to establish, through a records custodian, that the data was kept in the ordinary course of business pursuant to Pa.R.E. 803(6).
In response, the trial court excused the jury and the Commonwealth presented the testimony of Harry Gaab, Clary's parole officer, and David Dethlefsen, an employee with Attenti, the company that contracted with the Pennsylvania Board of Probation and Parole ("Parole Board") to supply electronic monitoring equipment. Gaab explained that the primary purpose of placing a parolee on GPS monitoring is to verify the parolee's whereabouts for curfew purposes. Gaab added that, when a parolee under his supervision violates their curfew or disregards any of the other parole conditions, he will receive an email or text message and will then follow up with the parolee regarding the alleged violation or consult the GPS records, to which he has access at all times. With respect to Clary, Gaab testified that he received an email sometime after the shooting informing him that Clary committed a violation of his parole by cutting off his ankle monitor. N.T., 3/5/2019, at 121.
Before the jury, Gaab was identified only as an employee of the Commonwealth. In an attempt to shield the jury from the exact nature of Gaab's employment or his relation to Clary, the trial court held the hearing on the GPS records outside of the presence of the jury.
Earlier, Gaab testified that he was familiar with Clary and aware that he was wearing an ankle monitoring device on the day in question, and that he turned over data created from the electronic device to the Norristown Police Department. Gaab added that the data from the device placed Clary at the corner of Willow and Spruce Streets "at two or three points at the time of th[e] shooting." N.T., 3/5/2019, at 111.
Gaab testified that, although he has unlimited access to the records, he is not considered the "keeper" of those records. Rather, Attenti stores the data. N.T., 3/5/2019, at 124.
Dethlefsen, an account manager at Attenti, testified that he oversees the Parole Board's account and that, for each of Attenti's accounts, in addition to providing the electronic tracking equipment such as ankle monitors, the company maintains records generated from the monitors. Dethlefsen explained that Clary's monitor had a unique serial number and that it tracked his location by utilizing the cellular network. Id. at 132. According to Dethlefsen, the collected data was automatically saved on Attenti's mainframe, without any human involvement or intervention, and the compilation of the data is an activity that is done as a regular practice of Attenti, and is not stored merely for litigation purposes. Id. at 136-38.
At the conclusion of Dethlefsen's testimony, the Commonwealth moved for admission of the GPS data, asserting that it had established the records as business records, authenticated by a custodian. See id. at 145-46 (contending that Dethlefsen, as an employee of Attenti with full access to the records, is a custodian thereof). In response, Clary's counsel, joined by Appellant's attorney, argued that the records were not admissible under the business records exception because: (1) the records were prepared solely for the purpose of litigation; and (2) Dethlefsen was not "the appropriate person to testify as custodian." Id. at 147.
The trial court disagreed with counsel's claims, opining that the Commonwealth established that the challenged evidence fell within the business records exception to the hearsay rule. Id. at 148. Accordingly, the court overruled the objection and permitted the Commonwealth to enter the records in their entirety.
Appellant was found guilty of aggravated assault–serious bodily injury, aggravated assault–attempting to cause serious bodily injury, criminal conspiracy, and carrying a firearm without a license. On May 23, 2019, he was sentenced to an aggregate term of 32 to 65 years of imprisonment.
At a separate bench trial, Appellant was also found guilty of persons not to possess a firearm.
On June 3, 2019, Appellant filed a post-sentence motion contesting the sufficiency and weight of the evidence to sustain his convictions, as well as requesting that the trial court reconsider the sentence imposed. The trial court denied Appellant's motion. Appellant timely filed a notice of appeal, raising several issues. Germane to this appeal, Appellant challenged the trial court's decision to admit the GPS records from Clary's device into evidence, contending that they were hearsay and did not fall with the business records exception under Pa.R.E. 803(6).
In its opinion pursuant to Pa.R.A.P. 1925(a), the trial court maintained that the GPS records were properly admitted as business records, reiterating its finding during trial that the Commonwealth established, through a proper custodian, that the records, automatically generated and stored electronically without any human intervention, were not created and maintained for the purposes of litigation but, rather, were preserved for purposes of supervision and, potentially, sanctions for those found in violation of their parole conditions. Trial Court Opinion, 10/21/2019, at 15-16. The trial court opined in the alternative that, even if the evidence at issue did not meet the requirements necessary to fall within the business records exception, Appellant would still not be entitled to relief because the records were not hearsay, as they were "computer generated and d[id] not constitute an assertion made by a person." Id. at 16. Although acknowledging that this was an issue of first impression in Pennsylvania, the court found that decisions from other jurisdictions, which "ruled that GPS data cannot be hearsay because it is not an assertion made by a person," supported its alternative holding. See id. ("For example, the Supreme Court of Wisconsin [in State v. Kandutsch , 336 Wis.2d 478, 799 N.W.2d 865 (2011) (superseded by statute on other grounds ),] concluded that a computer-generated report is not hearsay ‘when it is the result of an automated process free from human input or intervention.’ ").
As in the Wisconsin case, the trial court emphasized that, here, the record established that Clary's GPS records were computer records that were generated and automatically stored electronically, as opposed to records created by Attenti or the Parole Board. Thus, the court concluded that the records were produced free from human input or intervention and, consequently, were not an assertion by a person.
On appeal to the Superior Court, Appellant reiterated his argument that the trial court erred in admitting the data from Clary's GPS monitor into evidence, contending the records constituted inadmissible hearsay. In setting forth his argument, Appellant claimed that there is a "national split on whether GPS records qualify as hearsay records," an issue which he conceded has yet to be directly addressed by this Court. Appellant's Brief to Superior Court at 7. Although aware of the competing views on GPS data as it relates to hearsay, Appellant relied heavily on a case from Florida, Channell v. State , 200 So.3d 247 (Fla. Dist. Ct. App. 2016). Therein, the Florida court held that GPS data created from the defendant's electronic monitoring bracelet was hearsay. Appellant urged the Superior Court to "adopt Florida's position and hold that GPS records qualify as hearsay." Appellant's Brief to Superior Court at 8.
See also Ruise v. State , 43 So.3d 885, 886 (Fla. Dist. Ct. App. 2010) (holding that "GPS data is clearly hearsay because it purports to show [an offender's] locations ... and it is being offered for the truth of the matter asserted, i.e. , to prove that [the offender] was in the locations away from his residence reflected in the GPS data").
Florida's Evidence Code defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted[,]" see Fla. Stat. Ann. § 90.801(1)(c), and a "statement" as, inter alia , "[a]n oral or written assertion," id. § 90.801(1)(a)(1).
Alternatively, Appellant asked the intermediate court to reject the trial court's determination that the challenged GPS records fell within the business record exception to the hearsay rule. See Appellant's Brief to Superior Court at 8 (reasserting his position that the GPS records presented in this case were created in anticipation of litigation and, thus, could not be considered business records for the purpose of Rule 803(6) ).
The Superior Court affirmed Appellant's judgment of sentence in a published opinion authored by Judge Anne Lazarus and joined by Judges John Bender and Correale Stevens. Commonwealth v. Wallace , 244 A.3d 1261 (Pa. Super. 2021). In addressing Appellant's claim concerning the admissibility of the GPS records, the intermediate court noted that, while "Pennsylvania courts have not ruled on whether GPS records are hearsay[,] ... some state and federal courts have ruled that computer-generated GPS data cannot be deemed hearsay because it is an assertion made by a machine, not an assertion made by a person." Wallace , 244 A.3d at 1271 (citing, inter alia , United States v. Lizarraga-Tirado , 789 F.3d 1107, 1109 (9th Cir. 2015) ("[a] tack placed by the Google Earth program and automatically labeled with GPS coordinates isn't hearsay"); United States v. Khorozian , 333 F.3d 498, 506 (3rd Cir. 2003) (header of fax bearing the transmission date was not hearsay because, under the Federal Rules of Evidence, "a statement is something uttered by ‘a person’ [and thus,] nothing ‘said’ by a machine ... is hearsay"); People v. Rodriguez , 16 Cal. App. 5th 355, 381, 224 Cal.Rptr.3d 295 (2017) ("The computer-generated report of the GPS data generated by defendant's ankle monitor did not consist of statements of a person as defined by the Evidence Code, and did not constitute hearsay as statutorily defined." (emphasis omitted))).
That said, the court explained it was aware that, in Channell , the Florida District Court of Appeal held that GPS records are hearsay. However, the panel emphasized that, in relying on this case, Appellant failed "to acknowledge that the relevant definitions framing the hearsay analysis are materially different under the Florida Evidence Code and the Pennsylvania Rules of Evidence." See id. at 1271-72 (comparing Fla. Stat. Ann. § 90.801(1)(a)(1) (defining a statement as "[a]n oral or written assertion") with Pa.R.E. 801 (explaining that a statement for the purposes of hearsay is a written or oral assertion of a person)). Thus, the Superior Court determined that, in order to adopt Florida's position on GPS data, it would "have to ignore the evidentiary definitions of Pennsylvania law," something it was not permitted to do. See id. at 1272.
Accordingly, the Superior Court rejected Appellant's claim because, "as it stands, GPS data automatically generated by a computer, free from interference by any person, does not constitute a ‘statement,’ and therefore, cannot qualify as hearsay." Id.
Given the intermediate court's determination that GPS data is not hearsay, it did not address whether the challenged evidence fell within an exception to the rule against hearsay. However, the court did not discount the possibility, in a future case, of excluding such evidence on another basis, such as where an opponent questioned the procedure for generating the data, or argued that the data produced by the machine or software was erroneous.
We granted review to address whether the Superior Court erred in this determination. See Commonwealth v. Wallace , 270 A.3d 428 (Pa. 2021) (order). In resolving this question, we are tasked with deciding whether GPS data, collected from Clary's electronic monitor device, is hearsay and, thus, was inadmissible at Appellant's trial. This is an evidentiary question, for which our standard of review is well settled: "Questions concerning the admissibility of evidence are within the sound discretion of the trial court, and this Court will not reverse the trial court's decision absent an abuse of that discretion." Commonwealth v. Laich , 566 Pa. 19, 777 A.2d 1057, 1060 (2001) ; see also Commonwealth v. Smith , 545 Pa. 487, 681 A.2d 1288, 1290 (1996) (explaining that "[d]iscretion is abused when the course pursued [by the trial court] represents not merely an error of judgement, but where the judgement is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will" (internal citation omitted)). II. Parties' Arguments
Appellant asserts that the Superior Court erred in finding that computer-generated data is exempt from the hearsay rule. Highlighting that the court's affirmation of the trial court's evidentiary ruling was based upon a theory that was never pursued by the Commonwealth at trial, Appellant contends that the lower court "usurped this Court's role in the rule-making process by concluding that any time a witness, no matter how unqualified, claims that some data or some result was generated by a computer, that item becomes admissible evidence without any further thought." Appellant's Brief at 25. Appellant insists that this holding is not only unsupportable by our Rules of Evidence and related case law, but is also contrary to decisions from other jurisdictions.
As noted supra , at trial, Appellant sought to exclude the GPS records as hearsay. In response, the Commonwealth maintained that the records were admissible under the business records exception to the hearsay rule.
For example, acknowledging that this Court has not directly addressed whether data collected from a GPS ankle monitor constitutes hearsay, Appellant cites Commonwealth v. Le , 652 Pa. 425, 208 A.3d 960 (2019) (in addressing challenge to admissibility of cell phone, determining that Le was not entitled to relief because his claim on appeal was waived), and Commonwealth v. Carter , 593 Pa. 562, 932 A.2d 1261 (2007) (holding that the trial court did not abuse its discretion in admitting a state laboratory report, which indicated the presence of cocaine in materials seized from Carter, pursuant to the business records exception). Appellant claims that, in these cases, this Court "recognized that comparable items such as cell phone location data and other cell phone records are hearsay which must be introduced under an exception to the rule against hearsay" and, thus, supports a determination that GPS records are hearsay statements, which must meet an enumerated exception for them to be admissible. Appellant's Brief at 27-28.
Appellant argues that the GPS data introduced at his trial "plainly constitute[d] a statement under this Court's existing precedent," and that Superior Court herein neither offered "justification for such a dramatic change in the rules of evidence," nor considered the above-cited cases when conducting its analysis. Id. at 30-31; see also id. at 30 (emphasizing that, until the intermediate court issued its opinion in this case, "Pennsylvania had not adopted a ‘computer-generated document exception’ to the rule against hearsay," nor did any party in this matter argue below that such an exception existed).
Additionally, Appellant criticizes the manner in which the Superior Court interpreted the Florida decision in Channell , supra . Although recognizing that there is no national consensus on whether GPS data falls within the rule against hearsay, and conceding that some states have found that computer-generated data is not hearsay, see e.g. , Lizarraga-Tirado , 789 F.3d at 1109 (satellite image and GPS coordinates where Lizarraga-Tirado was arrested were not hearsay), Appellant asserts that the Superior Court's attempt to distinguish Florida's hearsay rule at issue in Channell from Pennsylvania's was based on an incorrect reading of Florida's definition of hearsay. See Appellant's Brief at 34-35 (noting that Florida's hearsay rule refers to a statement made by a "declarant" and defines a "declarant" as a person). Moreover, in Appellant's view, Channell 's analysis "makes sense" because computers are "programmed by people," id. at 37, and he emphasizes that, even if we determine that GPS data is hearsay, in many cases, computer-generated data will be admissible as a business record, or through expert testimony, id. at 39-40.
Appellant further asserts that "Florida's concerns about trial-by-algorithm are justified," asserting that, in the present case, inputting the coordinates produced by the ankle monitor revealed a different location in Google Maps than what was reported by the data sheet generated by Attenti. Appellant's Brief at 36-37.
However, with respect to the instant matter, Appellant maintains that, in addition to concluding that GPS data is hearsay, we should also find that the data introduced at trial in this case was not admissible under the business records exception. In his view, the records failed to meet the requirements of this exception as they were both unreliable and prepared for the purposes of litigation. Id. at 41-42. More specifically, Appellant asserts that "the records show a lack of trustworthiness" because Dethlefsen, the Attenti employee, and Gaab, Clary's parole officer, both of whom testified on behalf of the Commonwealth, were unaware of how the GPS system worked. Id. at 46-47. He also views these records as having been created in anticipation of litigation, because GPS monitoring is part of a court-ordered process, and when an individual required to wear an ankle monitor fails to comply with his requirements, the records produced from the bracelet are used to prove that a violation has occurred. Id. at 43-45; see also id. 45-46 (insisting that GPS records "are used to monitor parolees on behalf of a court, ... they are regularly brought into parole board hearings and courts of law when agents need to testify to parole violations," and there "is no purpose for these records other than litigation").
Both the Pennsylvania Association of Criminal Defense Lawyers, together with the Defender Association of Philadelphia (collectively, "Defense Amici ") and Philadelphia Legal Assistance ("PLA") filed amicus briefs in favor of Appellant. (PLA is a legal aid program which assists low-income individuals residing in Philadelphia with civil legal issues.) PLA agrees with Appellant that GPS data should be considered hearsay because, in its view, machines "are not infallible," and information generated by a computer, such as GPS technology, is not "untouched by human error" but, rather, qualifies as statements, as a person had a role in programming "certain assumptions and procedures that impact the outputted data." PLA's Amicus Curiae Brief at 7-8. PLA also explains that it has particular interest in this issue because the use of GPS data is not limited to criminal matters but is used in a variety of proceedings, including employment litigation, as employers "use electronic tracking, including GPS, to monitor and control workers, and often use such data to support disciplinary action, including discharge." Id. at 4. In essence, PLA believes that "[r]equiring that GPS data and calculations be evaluated under the hearsay rule is paramount to protecting the rights of workers in unemployment proceedings, the vast majority of whom are pro se ." Id. at 5; see also id. at 6 ("Under the holding of the Superior Court, a fact finder could rely on GPS data to disqualify a claimant from receiving unemployment benefits without important context about the reliability of that data."). This is because, PLA asserts, GPS data is not always accurate. Id. at 12-13.
Similarly, Defense Amici assert that, regardless of whether computer-generated evidence, such as GPS data, is deemed to be hearsay, such evidence must meet a threshold determination of reliability before it is admitted in a criminal proceeding. See Defense Amici 's Brief at 4 (explaining that, while they take no position on whether GPS data constitutes hearsay, because such information is increasingly used in criminal prosecutions, this Court should "render its decision cognizant of the need for GPS and other data evidence to meet the threshold of reliability").
In response, the Commonwealth asserts that the Superior Court properly found that GPS records are not hearsay and that Appellant's claim to the contrary, supported nearly exclusively by Florida law, is meritless. The Commonwealth emphasizes that Pennsylvania's hearsay rule requires an assertion by a person, whereas, "under Florida's evidentiary definition of what constitutes a ‘statement,’ any oral or written assertion qualifies as such no matter who or what is making that assertion." Commonwealth's Brief at 10 (comparing Fla. Stat. § 90.801 (defining a "statement" as either: (1) an oral or written assertion; or (2) nonverbal conduct of a person) with Pa.R.E. 802(a) (explaining that a statement is "a person's oral assertion, written assertion, or nonverbal conduct")). Accordingly, the Commonwealth contends that to adopt Florida's position, as espoused in cases such as Channell , would require us to ignore the language of our own Rules of Evidence. See id. at 12 ("As it stands, under the plain language of Pennsylvania's Rules of Evidence, an automatically generated GPS record such as the record at issue in this case does not constitute a statement, and therefore cannot qualify as hearsay.").
The Commonwealth argues that adopting Florida law would be inappropriate in the context of this case, as it relied on the Rules of Evidence, as written, when presenting the GPS data as evidence in Appellant's trial. Commonwealth's Brief at 26-27. Rather, in its view, if we conclude that a change is warranted, "the most appropriate course of action" would be for us to refer this issue to the rules committee for consideration. Id. at 28.
The Commonwealth also challenges Appellant's claim that previous decisions from this Court and the intermediate courts validate his position that GPS records are statements. Rather, the Commonwealth submits that the cited cases did not involve a question of whether device-generated records constituted statements under Rule 801(a), but, rather, that it was merely assumed they did. For example, the Commonwealth explains that, in Le , supra , in addressing the admissibility of cell phone records, this Court stated that "the trial court permitted the introduction of the cell phone records, admittedly hearsay, pursuant to the ‘business records’ exception." See Le , 208 A.3d at 970. However, the Commonwealth emphasizes that there was no challenge in that case to whether the contested evidence was hearsay, and this Court upheld the admission of the records based on waiver: "Thus, the question of whether such records are actually hearsay under the Rules of Evidence was never [ ] litigated in that case." Commonwealth's Brief at 14.
Further, the Commonwealth contends the fact that humans create computer programs is irrelevant to Rule 801's "person" requirement. See id. at 22 (arguing that, according to Appellant's reasoning, "the instant brief would be a statement by Bill Gates and Microsoft, since the undersigned used a Microsoft program to write the brief"). Simply put, the Commonwealth insists that device-generated information is nothing more than data and, thus, is not a person's assertion. Id. at 23.
Because the only question before this Court is whether the Superior Court erred in concluding that GPS records are not hearsay, the Commonwealth states that it declined to respond to Appellant's argument that the trial court erred when it admitted the GPS data under the business records exception to the hearsay rule. Commonwealth's Brief at 8.
Finally, the Commonwealth maintains that any concern regarding the accuracy of computer-generated records is not encompassed in the question presented to this Court. Rather, the Commonwealth argues, "questions of accuracy and reliability are determined under Pa.R.E. 901, a different part of the Pennsylvania's Rules of Evidence altogether." Commonwealth's Brief at 20; see also id. at 25 (maintaining that while it is "entirely reasonable to question the programming of a system under [Rule] 901" that issue is not before us).
Rule 901 sets forth the requirements of authenticating or identifying evidence. In particular, the rule provides that, "to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Pa.R.E. 901(a).
The Office of the Attorney General of Pennsylvania ("OAG") has filed an amicus brief in support of the Commonwealth. In particular, the OAG agrees with the Commonwealth that GPS data is not hearsay under the plain language of Rule 801 "because a computer is not a ‘person’ and therefore cannot be a ‘declarant' who makes a hearsay ‘statement’ under the plain language" of Rule 801. OAG's Amicus Curiae Brief at 2. It further asserts that Appellant's claim that computer programs are created by humans and, thus, the resulting data constitutes a statement made by a person, fails because the "people who created the GPS software at issue, potentially years ago, were not specifically involved in tracking Clary's GPS movements in this case," nor "could a human being even physically make such a ‘statement’ of raw GPS data, as no human has the brain power to pinpoint another person's precise GPS location without the aid of a computer." Id. at 12-13. In addition, the OAG argues, even assuming arguendo that GPS data is hearsay, it would still be admissible under several exceptions to the hearsay rule, including the business records exception. Id. at 15-17.
III. Discussion
This Court has acknowledged that, "[a]t times, the line that divides hearsay from non-hearsay can be difficult to discern." Commonwealth v. Fitzpatrick , ––– Pa. ––––, 255 A.3d 452, 458 (2021). Nevertheless, generally speaking, "[t]o constitute hearsay, a statement first must be uttered out-of-court, and then it must be offered in court for the truth of the matter asserted in the statement." Id. We accord special scrutiny to hearsay because a "hearsay statement lacks guarantees of trustworthiness fundamental to the Anglo-American system of jurisprudence." Heddings v. Steele , 514 Pa. 569, 526 A.2d 349, 351 (1987) ; see also id. ("Perhaps such a statement's most telling deficiency is it cannot be tested by cross-examination.").
In Pennsylvania, hearsay is a statement that: "(1) the declarant [did] not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement." Pa.R.E. 801(c)(1)-(2). Key to our analysis herein is whether the challenged evidence is a "statement" offered for the truth of the matter asserted. As noted supra , our Rules of Evidence define a "statement" as "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion," and define a "declarant" as "the person who made the statement." Pa.R.E. 801(a)-(b).
None of the parties dispute that the GPS data was offered for the truth of the matter asserted – i.e., to establish Clary's location.
With this in mind, we turn to the question before us. As acknowledged by the parties and lower courts, this Court has yet to directly address whether data collected from a GPS ankle monitor constitutes hearsay. However, upon review, we find that the language in Rule 801 is clear: a statement is a written or oral assertion of a person . Here, the relevant assertion – the GPS location data – was not made by a person but collected electronically by the GPS monitoring device attached to Clary's ankle. Thus, by definition, this evidence cannot constitute hearsay. Cf. Commonwealth v. Davis , 487 Mass. 448, 168 N.E.3d 294, 310 (2021) (holding that, because "[c]omputer-generated records are created solely by the mechanical operation of a computer and do not require human participation[,] ... they cannot be hearsay"). In that regard, we find unavailing Appellant's argument that computer-generated data constitutes a statement for hearsay purposes because a person created the computer program that produced the data. Indeed, we find Appellant's citations to cases from this Court, which he suggests indicate our recognition of similar evidence as hearsay, to be unpersuasive. This is so because, in each of the cases cited, the contested evidence was merely presumed to be hearsay for the purposes of analyzing a hearsay exception. See Le , 208 A.3d at 970-71 (assuming that cell phone records were hearsay when considering whether the Commonwealth properly introduced them at trial under the business records exception but never reaching the merits of the claim); Carter , 932 A.2d at 1262 (reviewing a state police laboratory report, created by a forensic scientist, under the business record exception to the hearsay rule). At best, the portion of the cases upon which he relies constitute dicta . See Williams v. United States , 289 U.S. 553, 568, 53 S.Ct. 751, 77 L.Ed. 1372 (1933) (deeming expressions obiter dicta on grounds that they did not involve the question under consideration, which "may be respected, but ought not to control the judgment in a subsequent suit, when the very point is presented for decision" (internal quotation marks omitted)).
Rather, we agree with the Superior Court that, to adopt Appellant's (and Florida's) position regarding GPS records, "we would have to ignore the evidentiary definitions of Pennsylvania law." See Wallace , 244 A.3d at 1272. Moreover, our determination comports with the decisions of other jurisdictions, which, when interpreting similar evidentiary rules, have reached the same conclusion. For example, in Lizarraga-Tirado , supra , the Ninth Circuit held that GPS coordinates on a satellite image from a Google Earth program were not hearsay because, under the applicable federal evidentiary rule, a "statement" must be made by a person and, in that case, the relevant assertion was made by a computer program. See Lizarraga-Tirado , 789 F.3d at 1110 ("Though a person types in the GPS coordinates, he has no role in figuring out where the tack will be placed" and, therefore, because "the program makes the relevant assertion—that the tack is accurately placed at the labeled GPS coordinates—there's no statement as defined by the hearsay rule"). Similarly, in Rodriguez , supra , a California appellate court addressed a claim that GPS data generated from a defendant's ankle monitor was inadmissible hearsay. Like the Ninth Circuit in Lizarraga-Tirado , the Rodriguez court concluded that "data that is automatically generated by a computer is not hearsay because it is not a statement of a person." Rodriguez , 16 Cal. App. 5th at 379 ; see also City of LaVergne v. Gure , 2022 WL 3709387, at *3 n.2 (Tenn. Ct. App. 2022) ("[g]enerally speaking, machines are not declarants" (citations and internal quotation marks omitted)); Davis , 168 N.E.3d at 310 (noting that, under Massachusetts Guide to Evidence, a "statement" is a person's oral assertion, written assertion, or nonverbal conduct, and, because the contested evidence was "computer generated[,]" it did not "contain a statement").
That said, arguably, Appellant's best argument is that there is a lack of consistency on this issue nationwide. See, e.g. , Channell, supra ; R.L.G. v. State , 322 So.3d 721, 724 (Fla. Dist. Ct. App. 2021) (explaining that, in Florida, "GPS records of third parties have traditionally been treated as hearsay and thus ordinarily admissible only under the business records exception to the hearsay rule"); State v. Lawson , 154 N.E.3d 658, 664 (Ohio App. Ct. 2020) (noting that, under the relevant Ohio evidentiary rule, a "statement" is an oral or written assertion and, thus, "GPS data constitutes an out-of-court ‘statement’ " for hearsay purposes). Indeed, before this Court, Appellant relies almost exclusively on cases from Florida, which, as indicated supra , have held that GPS records are hearsay, and he suggests that this Court should follow suit.
In response to Appellant, the Commonwealth argues that a comparison of Florida's hearsay rule against our own reveals a flaw in Appellant's position. Specifically, the relevant Florida evidentiary rule describes hearsay as an out-of-court statement and defines "statement" as either: "(1) [a]n oral or written assertion; or (2) [n]onverbal conduct of a person if it is intended by the person as an assertion." Fla. Stat. § 90.801(a)(1) - (2) and (c). In contrast, the Commonwealth observes, our hearsay rule defines a "statement" as "a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion." Pa.R.E. 801(a) (emphasis added).
Ohio, in which courts have also held that GPS data constitutes an out-of-court statement, similarly defines a "statement" under its hearsay rule. See Ohio Evid. R. 801.
While the Commonwealth points out that Florida's definition of "statement" arguably is broader than our own, we observe that Florida nevertheless defines hearsay as a "statement, other than one made by the declarant," and defines "declarant" as "a person who makes a statement." See Fla. Stat. § 90.801(a)-(c) (emphasis added). Thus, the Commonwealth's distinction is not entirely persuasive. Regardless, it is well settled that "decisions of sister states are not binding precedent on this Court," see Commonwealth v. Nat'l Bank & Tr. Co. of Cent. Pennsylvania , 469 Pa. 188, 364 A.2d 1331, 1335 (1976), and, most critically, we note a logical lapse in the decisions from Florida that Appellant relies so heavily upon. Indeed, the courts in those cases did not discuss, or explicitly declined to address, the "person" requirement in Florida's hearsay rule which we have just discussed.
For example, in Channell , the court cited Florida's hearsay rule but did not address the person requirement in Fla. Stat. § 90.801(b), nor did any party therein argue that the at-issue data should be considered non-hearsay because it was created by a machine as opposed to a statement uttered by an individual. Likewise, in Ruise , supra , the court cited to its hearsay rule and determined that the GPS data was "clearly hearsay" because it purported to show Ruise's locations on a certain date, and was "being offered for the truth of the matter asserted[.]" See Ruise , 43 So.3d at 886. However, the court did not acknowledge the person requirement, nor did it explicitly address how the data, created by a machine, fell within the definition of hearsay, and focused instead on the State's argument that the GPS data was admissible under the business records exception to the hearsay rule. Id. ; see also Lawson , supra (same); R.L.G. , 322 So.3d at 725-26 (declining to address the State's argument that the location information was not hearsay because the evidence constituted statements by machines and not persons, as the claim was raised for the first time on appeal and the record before it was insufficient to resolve whether the location information was generated entirely without human input). Thus, we are unpersuaded by these decisions. Finally, our conclusion that GPS data is not hearsay comports with the purpose of the rule against hearsay, especially as it pertains to a defendant's right to confrontation. In that regard, we agree with the observation of the Eleventh Circuit in United States v. Lamons , 532 F.3d 1251 (11th Cir. 2008) : "Although the right to subject witnesses to the crucible of cross-examination has some symbolic purpose in promoting the ‘perception as well as the reality of fairness,’ ... [t]hese purposes are ill-served through confrontation of the machine's human operator." Id. at 1264-65. That is, hearsay statements are generally inadmissible because their introduction robs a defendant of his ability to cross-examine the declarant to test his truthfulness or challenge his statements – but a machine cannot be cross-examined. Accordingly, "[t]he best way to advance the truth-seeking process with respect to such ‘statements’ is not through cross-examination of the machine operator, but through the process of authentication." Id. (internal quotation marks added); see also United States v. Espinal-Almeida , 699 F.3d 588, 610 (1st Cir. 2012) (assessing the authenticity of GPS data under Rule 901, "Authenticating or Identifying Evidence," and stating that "evidence derived from the operation of a machine or instrument normally depends for its validity on the premise that the device was in proper working order" (citation omitted)). Indeed, to prove that "the proffered evidence is what it purports to be," see Concurring Opinion (Wecht, J.) at 912, a proponent may be asked to prove that a machine or process produces an accurate result. See Pa.R.E. 901(9) (detailing that evidence about a "process or system" can be authenticated with "[e]vidence describing a process or system and showing that it produces an accurate result"); see also United States v. Washington , 498 F.3d 225, 231 (4th Cir. 2007) ("Any concerns about the reliability of such machine-generated information is addressed through the process of authentication not by hearsay or Confrontation Clause analysis. When information provided by machines is mainly a product of mechanical measurement or manipulation of data by well-accepted scientific or mathematical techniques, reliability concerns are addressed [under F.R.E. 901(9) ] by requiring the proponent to show that the machine and its functions are reliable, that it was correctly adjusted or calibrated, and that the data ... put into the machine was accurate ...." (citation and internal quotation marks omitted)).
Justice Wecht interprets our analysis of these cases as suggesting that we deem these courts to have "simply ignored the clear textual commands of federal and state rules" when analyzing computer-generated evidence. See Concurring Opinion (Wecht, J.) at 910–11. To the contrary, we observe instead that these cases did not acknowledge or address the person requirement of the implicated hearsay rule, presumably because it was deemed unnecessary to do so in resolving the matter on the business records exception, for example. It is common practice for courts to forego addressing what might be viewed as a more difficult legal question – especially in the absence of briefing or argument – where it may be resolved on an alternative basis. Indeed, many of the cases relied on by the concurrence appear to have used this same analytical approach. See e.g. Kilgore v. State , 295 Ga. 729, 763 S.E.2d 685 (2014) (addressing whether the trial court erred in admitting cell phone records pursuant to the business records exception, without addressing the threshold hearsay issue); Commonwealth v. McEnany , 732 A.2d 1263, 1273 (Pa. Super. 1999) (concluding that "the trial court properly exercised its discretionary power, within the Uniform Business Records Act, regarding the admission of the phone records" without addressing the threshold hearsay issue).; U.S. v. Bonomolo , 566 Fed. Appx. 71 (2nd Cir. 2014) (reviewing the admission of evidence under the business records exception without first considering whether the evidence constituted hearsay under the rule). We eschew construing such cases as having "sub silentio endorsed" Appellant's position on the hearsay question before us. See Concurring Opinion (Wecht, J.) at 911.
Appellant seemingly acknowledges as much, contending that computer programs are susceptible to error and, thus, computer-generated data can be inaccurate and unreliable. Appellant's Brief at 23-24. Here, however, an authentication challenge was not raised by Appellant before the Superior Court and, accordingly, to the extent one is presented now, it is waived. See Pa.R.A.P. 302 (issues not raised in the lower court are waived and cannot be raised for the first time on appeal). Consequently, while this Court can foresee issues arising with regard to the reliability and authentication of computer-generated evidence, we take no position on the merits of Appellant's assertion with respect to the instant matter.
In conclusion, we hold that GPS data does not constitute hearsay under the plain language of Rule 801 because it does not constitute a statement as defined therein. We leave for another day whether, and under what circumstances, such evidence may be challenged on reliability, authentication, or other grounds.
We have no quarrel with the concurrence's well-founded concern that advancements in software systems may eventually call into question the efficacy of our hearsay and perhaps other evidentiary rules. However, in our view, the appropriate response is to amend those rules, and not to stretch the common sense meanings of oral or written statements under Rule 801 to include the output of any human-created machine.
For these reasons, we affirm the order of the Superior Court.
Justices Donohue, Dougherty, Mundy and Brobson join the opinion.
Justice Wecht files a concurring opinion.
The Late Chief Justice Baer did not participate in the decision of this matter.
JUSTICE WECHT, concurring
The Majority concludes that GPS data transmitted from an ankle monitor—which placed Jamal Wallace at the intersection of Spruce and Willow Streets in Norristown on the night of the relevant assault —does not constitute hearsay under the plain language of the Pennsylvania Rules of Evidence. In doing so, it effectuates a significant change in our law to which I cannot assent. For decades, Pennsylvania courts have analyzed the admission of computer-generated evidence under the business records exception to the rule against hearsay. While this Court's precedent may not compel endorsing that evidentiary categorization today, the Majority discards the status quo using logic that threatens to erode evidentiary protections and reinvent how courts treat the output of machines. For the reasons that follow, I concur in the result only.
Wallace himself was not wearing the ankle monitor. Rather, his co-defendant, Mason Clary, was wearing it as a condition of his release on state parole. The statement of a third man, C.S., placed both Wallace and Clary at the shooting. See Notes of Testimony ("N.T."), 3/5/19, at 225-26.
See Maj. Op. at 904–05; Pa.R.E. 801(a).
See Pa.R.E. 803(6).
In the interest of clarity to the bench and bar, two critical distinctions must be made at the outset. First, computer-stored evidence and computer-generated evidence present different analytical starting points. Emails, word processing files, and voice recordings are examples of assertions that human beings make and store electronically, and the hearsay framework applies to them as comfortably as it would to a handwritten letter or to a recording on a cassette tape. But evidence generated by a computer—such as a test result in a laboratory, a reading from a radar gun, records of phone calls, or ATM receipts—poses a different challenge, in that it becomes less clear the degree to which human beings, as opposed to the computer itself, are responsible for the output. This second category might be separated further into evidence that requires human operation or initiation (i.e. , a DNA test) and that which does not (i.e. , metadata).
See Rudolph J. Peritz, Computer Data and Reliability: A Call for Authentication of Business Records Under the Federal Rules of Evidence , 80 Nw. U. L. Rev. 956, 980 (1986).
See, e.g. , Commonwealth v. Fitzpatrick , ––– Pa. ––––, 255 A.3d 452, 470-72 (2021) (analyzing an email under the hearsay framework).
See generally Andrea Roth, Trial by Machine , 104 Geo. L.J. 1245, 1270-76 (2016) ; Brian Sites, Machines Ascendant , 3 Geo. L. Tech. Rev. 1, 23-24 (2018) ; Adam Wolfson, Note, "Electronic Fingerprints": Doing Away with the Conception of Computer-Generated Records as Hearsay , 104 Mich. L. Rev. 151, 151 (2005).
The next critical distinction, which pertains to computer-generated evidence, is between the individual responsible for designing the algorithm, program, or machine at issue and the individual who operates it. In the case sub judice , someone developed and programmed the ankle monitors and the GPS system that Attenti—the company that contracted with the Pennsylvania Board of Probation and Parole to supply electronic monitoring equipment—used to track state parolees; but it presumably was not the same person who provided this particular information about this particular ankle monitor in service of the Commonwealth's case.
The Majority observes that our Rules of Evidence, for purposes of the hearsay rule, define a statement as "a person's oral assertion, written assertion, or nonverbal conduct," and thereby concludes that, because "the relevant assertion ... was not made by a person but collected electronically by the GPS monitoring device," it "cannot constitute hearsay." The Majority finds no barrier to such a conclusion in Commonwealth v. Le , 652 Pa. 425, 208 A.3d 960 (2019), or in Commonwealth v. Carter , 593 Pa. 562, 932 A.2d 1261 (2007), because "the contested evidence [in those cases] was merely presumed to be hearsay for purposes of analyzing a hearsay exception." The Superior Court, meanwhile, appeared to conclude that the GPS system itself was the declarant.
Pa.R.E. 801 (emphasis added).
Maj. Op. at 904–95 (emphasis in original).
Id. (emphasis in original); id. at 905 (finding that the portions of Le and Carter upon which Wallace relies constitute, "[a]t best ... dicta ").
Commonwealth v. Wallace , 244 A.3d 1261, 1271 (Pa. Super. 2021) (citing with approval United States v. Lizarraga-Tirado , 789 F.3d 1107, 1109-10 (9th Cir. 2015) (holding that, because "the program makes the relevant assertion," there is "no statement as defined by the hearsay rule"); United States v. Khorozian , 333 F.3d 498, 506 (3d Cir. 2003) ("a statement is something uttered by a person, so nothing ‘said’ by a machine ... is hearsay") (cleaned up); People v. Rodriguez , 16 Cal.App.5th 355, 224 Cal.Rptr.3d 295, 314 (2017) ("there was ‘no statement being made by a person’ "); Wisconsin v. Kandutsch , 336 Wis.2d 478, 799 N.W.2d 865, 879 (2011) ("the report was generated as the result of an automated process free of human intervention") (cleaned up)).
While I agree that Le and Carter do not compel any particular result here, that treatment of these cases fails to grapple with the complexity of the question before us. A computer program does not make statements. Like any other tool of fallible human design, people use it to make statements. After all, "[a] computer program is nothing more than an organized series of commands given by a human computer programmer," and "[e]very action taken by a computer is taken only at the command of a human programmer." Just as a clock cannot wind itself to line up with Eastern Standard Time, a computer cannot teach itself how to locate an ankle monitor on a plane of coordinates, nor can it instruct itself to do so in a particular instance. Furthermore, for an assertion to be "collected" from somewhere, it must be made in the first place.
In Le , this Court found that a challenge to the admission of phone records had not been preserved, and therefore did not consider the merits. 208 A.3d at 970-71. In Carter , this Court explicitly reached its conclusion "regardless of whether [a lab report fell] within" the business record exception. 932 A.2d at 1269.
Christian Chessman, Note, A "Source" of Error: Computer Code, Criminal Defendants, and the Constitution , 105 Calif. L. Rev. 179, 181 (2017). While "program sophistication and speed may create the illusion that the programs function autonomously," all of the computer's actions stem from source code created by a human. Id. at 182. As Chessman further opines:
[p]rogram output is neither neutral nor objective because programs are, at their base, written human speech. That humans are one step removed from program output is not equivalent to the removal of the human element. If computer programs are no more reliable ... than human statements, then many established concerns about human witness testimony readily apply to evidence produced by computer programs, including bias, malfeasance, and even simple mistakes. Thus, computer programs are not more reliable than human statements because they are human statements--and no more than human statements.
Id. at 185-86.
Maj. Op. at 904–05.
The Majority seems to suggest that courts analyzing computer-generated evidence like cell phone records and drug test results on hearsay grounds have simply ignored the clear textual commands of federal and state rules of evidence. In Melendez-Diaz v. Massachusetts , the United States Supreme Court scrutinized the admission of a lab report identifying a white powdery substance as cocaine under the business records exception. Like our rules, the Federal Rules of Evidence define "statement" as "a person's oral assertion, written assertion or nonverbal conduct." But that definition did not hinder or impede the Court's analysis. Years earlier, and before this Court's comments in Le and Carter , the Superior Court held that cell phone records—which showed that the last phone number the defendant dialed before the murder was the victim's—were admissible under the business records exception. The Commonwealth Court similarly has considered a former employee's drug test results under the same framework. Examples like this from both state courts and federal courts abound. I find it improbable that judge after judge has overlooked the word "person" in deciding these cases. The more likely explanation for their conclusions, in my view, is that those courts have sub silentio endorsed Wallace's position, and recognized that some "person" (e.g. , a designer or an operator) was responsible for the statement's creation.
557 U.S. 305, 321, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009).
F.R.E. 801(a) (emphasis added).
See Commonwealth v. McEnany , 732 A.2d 1263, 1272-73 (Pa. Super. 1999) ; see also Commonwealth v. Lewis , 1673-1679 EDA 2021, 2022 WL 3714540 (Pa. Super. Aug. 29, 2022) (non-precedential decision) (admitting cell phone records under the business records exception).
See Turner v. Unemployment Compensation Bd. of Review , 899 A.2d 381, 386-87 (Pa. Cmwlth. 2006)
See Kilgore v. State , 295 Ga. 729, 763 S.E.2d 685, 687 (2014) (holding that phone records were admissible under the business records exception to the hearsay rule); Ga. Code Ann. § 24-8-801 (defining "statement" as the "oral or written assertion or nonverbal conduct of a person ") (cleaned up) (emphasis added); People v. McDaniel , 469 Mich. 409, 670 N.W.2d 659, 661 (2003) ("The laboratory report at issue is, without question, hearsay."); M.R.E. 801(a) (defining "statement" as "an oral or written assertion or nonverbal conduct of a person ") (cleaned up) (emphasis added); see also United States v. Moore , 923 F.2d 910, 914 (1st Cir. 1991) (holding that computer-generated "loan histories" constituted hearsay); United States v. Bonomolo , 566 Fed.Appx. 71, 73-74 (2nd Cir. 2014) (admitting computer-generated spreadsheets detailing federal grants under the business records exception to the rule against hearsay); Perkins v. Rock-Tenn Serv., Inc. , 700 Fed.Appx. 452, 461 (6th Cir. 2017) (admitting computer-generated evidence of notices being sent under the business records exception to the rule against hearsay).
The Majority defends its treatment of these cases by positing that those courts have engaged in the "common practice" of "forego[ing] addressing what might be viewed as a more difficult legal question ... where it maybe resolved on an alternative basis." Maj. Op. at 907 n.21. But would the more straightforward and simpler resolution not have been to forego any analysis of exceptions by determining that the proffered evidence fell outside of the hearsay framework in the first place? Per the Majority's rationale, there is no difficult legal question to avoid, because computers are not people. Furthermore, none of the cases in question stated an assumption that the proffered evidence was hearsay for purposes of analyzing an exception, nor did they hold that the proffered evidence was inadmissible. Rather, they held that evidence was admissible under the business records exception to the hearsay rule . See Kilgore , 763 S.E.2d at 687 (holding that cell phone records "were admissible under the business records exception to the hearsay rule"); McEnany , 732 A.2d at 1273 ("[W]e are satisfied that the Commonwealth presented sufficient evidence to justify a presumption of the trustworthiness of [the cell phone records] so as to offset the hearsay character of the evidence.") (emphasis added); Bonomolo , 566 Fed.Appx. at 73 ("Rule 803(6) creates an exception to the hearsay rule"). A necessary analytical prerequisite to any such finding, unless it has been assumed, is that the evidence is subject to the hearsay rule, and can only be saved by an exception. To admit something as a business record is to deem it hearsay.
Critically, Wallace is not calling for total exclusion of the GPS evidence. Rather, he asserts that, because "a human created [the] algorithm" in question, an individual "with actual knowledge of how it works should be available for cross-examination on its reliability[.]" The Commonwealth offered the testimony of David Dethlefson, "a sales representative for Attenti who had absolutely no idea how the GPS system worked," who could not comment upon the "process of generating or obtaining the records," or "whether the process had produced accurate results." Dethlefsen
Wallace Br. at 33.
Id. at 46.
had not had any training on how to determine if the data was accurate, he did not think any calibration was performed on the devices, and he noted that the accuracy of the device was determined using a proprietary algorithm which was not given to the defense or evaluated by experts. Instead, it was based on a company secret, and the accuracy was certainly not evaluated by peer review studies.
Id. at 47 (citing N.T., 3/5/19, at 161).
In other words, Dethlefson indicated that he had neither designed nor operated the technology that located Clary's ankle monitor, and he implied that someone else at Attenti knew how it worked. Wallace's most compelling argument is that this testimony confirms that Dethlefsen cannot be the declarant because he was in no way responsible for the statement coming into existence, and that this case therefore equates to the traditional hearsay scenario of an individual saying, "Someone told me that John Doe stole the victim's car, and I have reason to believe that she was telling the truth."
The same can be said of Clary's parole agent, Harry Gaab. Although he collected the GPS data from Attenti, he was not responsible for its creation nor was he knowledgeable about its function or accuracy.
The Majority suggests that "[t]he best way to advance the truth-seeking process with respect to [machine-generated] ‘statements’ is not through cross-examination of the machine operator, but through the process of authentication." I am (at best) skeptical of this contention. Authentication is a relatively low threshold, asking only whether the proffered evidence is what it purports to be. Wallace does not contest that the print-out of coordinates and movements that the prosecution submitted is GPS data, or that it originated from Attenti's supervision of Clary. In other words, he concedes that it is what it purports to be. Wallace instead asserts that without someone from Attenti to substantiate this evidence and answer questions about what conclusions might be drawn therefrom, allowing it into court in the first place would be prejudicial. He certainly might have been able to convince the jury not to trust or ascribe weight to the GPS data after its admission, but the same could be said of any out-of-court statement. The entire hearsay framework stems from the basic premise that it is often best to exclude allegedly untrustworthy evidence before it can shape a factfinder's perception of the events in question. That is the ruling that Wallace seeks, and to shoehorn determinations about the trustworthiness, weight, and credibility of the GPS data into an authentication inquiry misunderstands both the purpose of Rule 901 and the nature of his challenge.
Maj. Op. at 906–07 (quoting United States v. Lamons , 532 F.3d 1251, 1264-54 (11th Cir. 2008) ); see also Pa.R.E. 104(e) (establishing that even when a "court rules that evidence is admissible"—i.e. , that it is relevant and authentic—"this does not preclude a party from offering other evidence relevant to the weight or credibility of that evidence.")
See, e.g. , United States v. Lundy , 676 F.3d 444, 453 (5th Cir. 2012) ("the low threshold for authentication"); Mullens v. State , 197 So. 3d 16, 25 (Fla. 2016) ("authentication is a relatively low threshold that only requires a prima facie showing that the proffered evidence is authentic; the ultimate determination of the authenticity of the evidence is a question for the fact-finder").
See Pa.R.E. 901 ; see also Commonwealth v. Brooks , 352 Pa.Super. 394, 508 A.2d 316, 318 (1986) ("Generally, two requirements must be satisfied for a document to be admissible: it must be authenticated and it must be relevant. In other words, a proponent must show that the document is what it purports to be and that it relates to an issue or issues in the truth determining process.").
See Laurence H. Tribe, Comment, Triangulating Hearsay , 87 Harv. L. Rev. 957, 958 (1974) (describing how "the perceived untrustworthiness" of out-of-court acts and utterances has led "the Anglo-Saxon legal system to exclude [them] as hearsay despite [their] potentially probative value").
If the concern animating Wallace's challenge is that the algorithm underlying Attenti's GPS monitoring system is faulty or otherwise unreliable, the best way to raise it would not be through hearsay or authentication. There are other ways of discrediting evidence. Wallace could have enlisted an expert in GPS evidence to discuss its shortcomings, or subpoenaed employees at Attenti more familiar with the nuts-and-bolts of the technology than Dethlefsen. Defendants in his position are not without a path to meaningfully challenge this type of evidence, but it may not lead through hearsay or authentication.
In light of my understanding that computers do not make statements "in a vacuum," my doubts as to the ability of an authentication challenge to remedy the prejudice that Wallace foresees, and a bevy of case law that I find persuasive, I would hold that the GPS data used to locate Wallace constituted hearsay, and I respectfully disagree with the Majority's contrary conclusion. The statement—that Clary and therefore Wallace were at the intersection of Spruce and Willow Streets in Norristown at 8:21 PM on April 6, 2018—was not Dethlefsen's or Gaab's to make. It was made out of court, either by the designer of Attenti's GPS tracking system or the operator of that system who documented Clary's movements, and repeated by Dethlefsen and Gaab for the truth of the matter asserted. I concur in the result, however, on the grounds that the GPS data was admissible under the business records exception to the hearsay rule.
Wallace Br. at 37; see also supra note 5. The Majority counters that, per Rule 901(b)(9), a proponent of evidence "may be asked to prove that a machine or process produces an accurate result." Maj. Op. at 907. This point is not persuasive for two reasons. First, this language in no way indicates a requirement ("may be asked"), and it appears in a non-exhaustive list of examples. See Pa.R.E. 901(b). Second, the Majority's reading is inverted. The language it cites allows the proponent of "[e]vidence describing a process or system " to authenticate that evidence by showing that the process or system "produces an accurate result." Id. (emphasis added). But Wallace is not challenging evidence that describes Attenti's GPS system, he is challenging its result . In fact, what he seeks is evidence that describes the system. Per Rule 901(b)(9), the proponent of evidence describing a GPS system could demonstrate its authenticity by showing—by way of tests or examples—that it accomplishes its intended purpose. It does not follow, however, that the appropriate avenue for challenging a result of that system lies in authentication.
See supra notes 13-17 and accompanying text.
The business records exception is found in Pa.R.E. 803, which provides in pertinent part:
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
...
(6) Records of a Regularly Conducted Activity . A record (which includes a memorandum, report, or data compilation in any form) of an act, event or condition if:
(A) the record was made at or near the time by--or from information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a "business", which term includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit;
(C) making the record was a regular practice of that activity;
(D) 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
(E) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
As long as an "authenticating witness can provide sufficient information relating to the preparation and maintenance of the records to justify a presumption of [their] trustworthiness," the proponent of a business record has provided "a sufficient basis ... to offset the hearsay character of the evidence." Though Dethlefsen could not have qualified as the declarant given his lack of knowledge about how Attenti's GPS tracking worked, he unquestionably qualified as a custodian of the company's records because he had access to them and could provide information about their preparation and maintenance.
In re Indyk's Estate , 488 Pa. 567, 413 A.2d 371, 373 (1979).
See Virgo v. W.C.A.B. (Cnty. of Lehigh-Cedarbrook) , 890 A.2d 13, 20 (Pa. Cmwlth. 2005) ("[I]t is not essential to produce either the person who made the entries or the custodian of the record at the time the entries were made or that the witness qualifying the business records even has personal knowledge of the facts reported in the business record.").
Wallace's argument that the GPS data does not qualify as a business record because it was prepared in anticipation of litigation is unavailing. In Melendez-Diaz , the United States Supreme Court explained that:
[d]ocuments kept in the regular course of business may ordinarily be admitted at trial despite their hearsay status. See Fed. Rule Evid. 803(6). But that is not the case if the regularly conducted business activity is the production of evidence for use at trial. Our decision in Palmer v. Hoffman , 318 U.S. 109 [63 S.Ct. 477, 87 L.Ed. 645] (1943), made that distinction clear. There we held that an accident report provided by an employee of a railroad company did not qualify as a business record because, although kept in the regular course of the railroad's operations, it was "calculated for use essentially in the court, not in the business." Id. at 114 . The analysts' certificates—like police reports generated by law enforcement officials—do not qualify as business or public records for precisely the same reason. See [Fed.] Rule [Evid.] 803(8) (defining public records as "excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel").
Melendez-Diaz , 557 U.S. at 321-22, 129 S.Ct. 2527 (cleaned up); see contra Commonwealth v. May , 587 Pa. 184, 898 A.2d 559, 565 (2006) (admitting a police report under the business records exception).
Unlike the accident report in Palmer and the laboratory report in Melendez-Diaz , the GPS data at issue here did not spawn into being for purposes of this or any trial. Rather, as a company whose sole purpose is to track parolees, Attenti continuously produced and maintained records of Clary's movements. Furthermore, the records were not "calculated for use ... in the court," as opposed to in business; tracking parolees is Attenti's business and, as the trial court noted, the records' primary purposes are "supervision and sanction" by Attenti's client, the Pennsylvania Board of Probation and Parole The company would have kept them regardless of whether Clary ever violated parole, and though parole violations certainly may result in litigation, not all do. Accordingly, the GPS data here are more akin to the phone records that were admitted in McEnany than they are to, for instance, results from a state police crime lab. I would affirm the Superior Court's judgment on those grounds. Though it may not be felt in this case (because of the applicability of the business records exception), sooner or later, the Majority's approach will prove untenable. Prosecutors will rely upon computer-generated evidence and, without having to demonstrate why that evidence should be entitled to a presumption of trustworthiness through an exception to the hearsay rule, wield it to put defendants on their back foot. They will shield their cases from evidentiary objections by laundering evidence and conclusions through algorithms and code. It will become defendants' unenviable burden to convince jurors and judges that complex, inscrutable machinery—despite its "mechanical appearance and apparently simple output," along with its "veneer of objectivity and certainty" —has erred. This Court's guidance will have undercut the relevance of the business records exception and bought into the fiction that when a series of human commands is complicated enough, no one is speaking at all.
Palmer , 318 U.S. at 114, 63 S.Ct. 477.
Tr. Ct. Op. at 14-16.
See 732 A.2d at 1273 (emphasizing that the records were "generated at the moment a phone call is made").
While I reserve judgment upon other questions in this vein should they come before this Court, it should be noted that my analysis is grounded in the record, and should not be construed as a per se rule. See N.T., 3/5/2019, at 154-57 (Dethlefsen testifying about what information is collected in Attenti's GPS records and his access to them). If, for instance, Attenti did not regularly maintain records of parolees' movements, and only turned on a device or extracted GPS data at the direction of state police when a monitored individual was suspected to have committed a violation, the "anticipation of litigation" exception to the business records exception conceivably might apply.
Roth, Trial by Machine , supra n.6, at 1269-70; see also id. (opining that complex computer programs and machines not only "obscured how the sausage is made, they obscure that their output is sausage at all"). For more on the "black box" problem, see Brian Sites, Machines Ascendant: Robots and the Rules of Evidence , 3 Geo. L. Tech. Rev. 1, 23-24 (2018) (quoting Andrea Roth, Machine Testimony , 166 Yale L. J. 1972, 1977-78 (2017)).
Cf. Commonwealth Fin. Sys., Inc. v. Smith , 15 A.3d 492, 499 (Pa. Super. 2011) (finding that computer-generated billing statements and account information were not admissible under the business records exception where the proponent of the evidence failed to "establish circumstantial trustworthiness").
While the Majority suggests that "advancements in software systems may eventually call into question the efficacy of our hearsay and perhaps other evidentiary rules," Maj. Op. at 908 n.22, I believe that day has come. In order to meet it, this Court does not need to "stretch ... common sense meanings of oral or written statements under Rule 801." Id. It could simply recognize that "[a] computer program is nothing more than an organized series of commands given by a human computer programmer," and that "[e]very action taken by a computer is taken only at the command of a human programmer." Chessman, supra note 12, at 181.