Photographs • Authentication • Silent Witness • Admissions

Commonwealth v. Woffard, PICS Case No. 14-0185 (C.P. Lehigh Jan. 17, 2014) Steinberg, J. (7 pages).

Woffard was charged with various weapons charges, 18 Pa.C.S. §6105(a) and (a)(1), based on photographs showing him in possession of a TEC-9 semi-automatic handgun. Woffard admitted that he was holding a real TEC-9 in the photograph and that the photographs were taken approximately two hours before a homicide occurred in August 2013. Woffard filed a motion for habeas corpus alleging that his statements cannot be used to establish a prima facie case and that the commonwealth failed to establish that the firearms not to be carried without a license occurred within the jurisdiction or within the statute of limitations. Request for habeas corpus denied.

The photographs were extracted from a cell phone. They were admitted into evidence as illustrative of a witness’ testimony and as silent witness photographs, as independent substantive evidence to prove the existence of what the photos depicted. Woffard authenticated the photographs by admitting to the detectives that the group photo was taken only hours before a murder in August 2013, that he was holding a real TEC-9 in the photos, that he was familiar with the magazine capacity and use of a suppressor, that the group photo included the defendant and the homicide victim, that he knew all of the individuals in the group photograph and identified them for the detectives and that the group shot was taken on the same street in Allentown in which the murder occurred several hours later.

Woffard challenges the photo authentication based on the fact that the photographs were recovered from the cell phone of third party, who consented to the extraction of the photos but who was not called as a witness at the pretrial hearing. The ability to authenticate photographs is not limited to either the owner of the cell phone or the photographer. Anyone with personal knowledge of what the photograph depicts can authenticate it. Woffard was in a position to authenticate the photographs because he could identify the persons in the photos, his possession of the gun, the date and time he was photographed and he was familiar with the scene photographed and the accuracy of the photographs. His admissions authenticated the photographs.

The commonwealth adequately established when and where the photos showing Woffard holding the gun were taken through Woffard’s admissions.