We don’t write much about criminal law although “domestic” cases do sometimes merge into the world of crime. Commonwealth v. Stallworth came to our attention because Susquehanna County Common Pleas Judge Jason Legg also reads appellate cases and writes about them for the local newspaper in Montrose, PA.
Nia Stallworth and Timothy Rawls were once married and had children. That ended in divorce but, as we are learning, a fair number of divorced people seem to recall where they buried the hatchet and are sometimes disposed to dig it back up. In November 2019 Mr. Rawls was awakened by his current wife who smelled smoke in their home. He found his garage was on fire. Since he is a fireman by trade, he addressed the problem quickly and successfully. A fellow firefighter assessed the cause and determined that an accelerant of some kind was involved, suggesting that the fire had been set. The night preceding the fire Ms. Stallworth and Rawls’ current wife had an altercation and later that evening Stallworth had driven her car into the Rawls garage, damaging it.
Circumstances seemed suspicious. Then, as happens more and more, Facebook intervened. Mr. Rawls’ friends and family caught a posting on the social media outlet by Ms. Stallworth. A woman identified as Consuela Stallworth posted photos of the burned Rawls garage with some offensive language and a confession to setting a fire because she is “crazy.” Nia Stallworth’s middle name is Consuela and she has used that name with other Facebook accounts. Mr. Rawls was familiar with that history although he had no direct access to the incriminating posting as he had blocked his former spouse.
The next sentence of the appellate decision will send professors of evidence into paroxysms. “…[T]he Commonwealth introduced a copy of the text message and the screenshot and authenticated it through Rawl’s testimony.” Realize this is a criminal case and Stallworth had been charged with felony arson. Counsel for the defendant objected under Rule of Evidence 901(b)(11) but the court overruled it and admitted the evidence. On appeal, Stallworth contend the statements were “double hearsay” or what in elementary law school we might have termed “double doggy hearsay.” The statement was not seen by Mr. Rawls. In fact, what he was “authenticating” was a screenshot of a statement that had once appeared on an electronic device by another person who had brought the screenshot to him.
Here are the problems. We dwell on them because we now live in a world of keyboards. In olden times (about 30 years ago) the defendant would have handwritten her statement or at least typed it on a typewriter which could be traced to a particular machine. Today, if I wanted to make problems for Nia Stallworth and I have access to her social media accounts and passwords, I could set a fire at the Rawls garage and then log on to Ms. Stallworth’s accounts and post photos of the fire I set and a confession of her responsibility. Of course, I would do that in the first person, where I profess to be Nia Consuela Stallworth.
In 2020 the Supreme Court amended Evidence Rule 901 allowing circumstantial evidence of digital communications to be admitted if there is “identifying content” or “proof of ownership, possession, control or access to a device or account at the relevant time when corroborate[d] by circumstances indicating authorship.” Pa.R.E. 901(b)(11)(B).
On a first read, the rule seems a fair attempt to address our electronic age issues. But here, we don’t know when the person offering the evidence (Mr. Rawls) was last present in the place Ms. Stallworth keeps or accesses her Facebook account. We don’t know whether she had an active Facebook account when the confessional post was published. We don’t see any evidence otherwise confirming that she was making personal use of Facebook at or about the time the inculpating evidence was posted.
In his article in the Susquehanna County Independent on May 7, Judge Legg summed up the challenges modern day judges face. Almost any of us has the capacity to create a social media account using Stallworth’s name or a similar identity (e.g., Consuela) Once access is secured, the miscreant can post under the guise of being Stallworth and can employ artificial intelligence to mimic media postings made by Stallworth in the past. The imposter can use a photo of her to add authenticity. Today you can even use photo editing devices to make it appear that she was in the garage and setting the fire.
In this case, the trial judge hearing the case dismissed the arson charge but found her guilty of criminal mischief, a third degree felony. The sentence imposed was two years of supervision. But the charge could have produced a seven year sentence and had the arson charge stuck, that sentence could range up to 20 years.
Accepting that this was a proper conviction, it illustrates the length to which people will go to inflict pain on those we have come to revile. But, in theory, the alleged victim in this case could have set and then extinguished his own fire and then deployed social media accounts to make it appear that his former wife was the perpetrator. The May 2020 amendment to Pa. Rule of Evidence 901 imposes little if any restraint on the admission of electronic evidence and essentially ignores any risk of fraud in creating that evidence. Thirty months later our electronic world was forever altered with the introduction of ChatGPT.
We aren’t going to require Facebook, “X”, Instagram and Reddit to open offices in our courthouses to help us authenticate what might or might not be our communications. But courts need to address with clarity how this evidence is proferred and admitted. Every family court litigator has blanched when his witness or his opponent’s reaches for a palmtop computer to “show the court” what was communicated electronically. Yes, there are “statements” on the screen and they are typically submitted for the truth of the matter asserted. But who authored these statements, how they were prepared, stored and retrieved is largely a mystery to everyone in the courtroom. That’s a danger that state supreme courts across the country need to re-evaluate in the wake of break neck changes in our new “artificial” electronic world.
Com. v. Stallworth, 76 EDA 2024