Com. v. Green, K. , 162 A.3d 509 ( 2017 )

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2017 Pa. Super. 140
COMMONWEALTH OF PENNSYLVANIA 1 IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KASHAMARA GREEN
Appellant No. 1324 WDA 2014
Appeal from the Judgment of Sentence March 18, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0001078-2012
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
and OTT, J.
OPINION BY GANTMAN, P.J.: FILED MAY 09, 2017
Appellant, Kashamara Green, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his jury
trial conviction for one (1) count of theft by failure to make required
disposition of funds received.' We affirm.
The relevant facts and procedural history of this case are as follows.
In 2011, Appellant worked as the manager of a Family Dollar store located in
Penn Hills, Pennsylvania. One of Appellant's responsibilities was to make
regular deposits of cash generated by the store's business. The normal
procedure was for the store manager, Appellant in this case, to bring the
' 18 Pa.C.S.A. § 3927(a).
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cash to the bank in a bag, make the deposit, and return to the store to fill
out a deposit log. A different employee had to verify the cash deposit.
Generally, Appellant obtained a verifying signature from the assistant
manager by showing her either a validated deposit slip from the bank or an
empty cash bag. Nobody had to accompany Appellant to the bank when he
made the deposits.
The testimony at trial revealed the following. In September 2011,
Shaun McDonald, a regional Loss Prevention Director for Family Dollar,
received notice of a missing deposit from the Family Dollar store in Penn
Hills. Upon investigation, Mr. McDonald discovered four missing deposits
from that store. After reviewing the store deposit logs, Mr. McDonald
established that Appellant was the person who was responsible for the four
missing cash deposits: proceeds for July 10, 2011 ($2,900.83), August 7,
2011 ($2,943.31), August 19, 2011 ($2,302.13), and September 1, 2011
($3,302.56). Mr. McDonald interviewed Appellant, who confirmed he was
responsible for making the four deposits in question, had signed for the
deposits, and had taken each of them to the bank as noted in the store
deposit log. The Family Dollar store deposit log, however, registered
$2,900.83 in-store proceeds for July 10, 2011, and dropped at the bank on
July 12, 2011. Appellant also gave Mr. McDonald a deposit slip for
$2,900.83 that purported to be for the business day of July 10, 2011. The
proffered deposit slip noted a deposit date of July 14, 2011. Mr. McDonald
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confirmed the deposit slip from Appellant had been altered, as the sequence
number (#70) and other information on the slip corresponded to a different
deposit made the month before, on June 7, 2011. Mr. McDonald said he was
able to verify that the four deposits in question were not ever made as
documented. Mr. McDonald also stated he had personally seen the one
"altered" deposit slip from Appellant. As a result of his investigation, Mr.
McDonald contacted the police, who then contacted the bank.
On cross-examination, Mr. McDonald confirmed the deposits in this
case were logged as having been deposited at an outside drop box at the
bank. He said Appellant was cooperative, answered all questions, denied
keeping those deposits for personal gain, and agreed to assist with any
police investigation. Mr. McDonald also confirmed both the log and the bank
receipts should have been under lock and key but occasionally bank deposit
slips would "go missing." Likewise, at times the person physically making
the deposit might not get a bank deposit receipt on the same day. Defense
counsel objected to the admission of the "altered" deposit slip and logs
because they were copies of the originals; counsel did not object to Mr.
McDonald's testimony regarding the information contained in the documents
where Mr. McDonald had personal knowledge of the originals. (See N.T.
Trial, 3/17/14, at 24-62.)
Ms. Colleen Doheny, an Internal Fraud Investigator for PNC Bank, also
investigated the matter. Ms. Doheny reviewed the deposit slip Appellant had
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given to Mr. McDonald, but she could not find that deposit in the bank's
teller journals. She also recognized that the information on the slip did not
line up evenly, and the font was inconsistent with the bank's practice of
using all capital letters to identify the month in the date field. Ms. Doheny
suspected the deposit slip had been modified. Moreover, PNC Bank reported
that teller cash box #5 referenced on the slip was not in operation on July
14, 2011, the date on the deposit slip. Additionally, the dollar amount and
sequence number on the slip did not match any other cash box in operation
on that date. The cash box and sequence numbers, however, matched the
information for a deposit made the previous month on June 7, 2011. (Id. at
64-69).
Ms. Doheny also reviewed the bank's surveillance videos, looking for a
person or a vehicle that matched the verbal descriptions, obtained from the
police, of Appellant and his car, a 1996 light blue Buick Riviera. Defense
counsel objected to her testimony about the tapes on the ground that the
tapes were not produced at trial, in violation of the best evidence rule at
Pa.R.E. 1002. (Id. at 70-72). The Commonwealth explained it did not have
the videos because "they are no longer available." (Id. at 70).2 The court
2 The Commonwealth states in its brief that the videos were unavailable at
trial because the bank's surveillance system periodically recycles old tape.
The Commonwealth, however, did not share this information with the trial
court or make any showing of a diligent search to locate the original
videotapes, which were not lost or destroyed through the fault of the
(Footnote Continued Next Page)
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allowed Ms. Doheny's limited testimony that she had seen no one, on the
tapes she viewed, who matched Appellant's description or any vehicle that
matched Appellant's car. (Id. at 72-73). Ms. Doheny admitted on cross-
examination that she had not met Appellant and had only a verbal
description of him from the police. She also conceded the possibility of
errors on the bank's end of a deposit generally, for example, deposits made
to the wrong account or a night -box jam. Ms. Doheny reconfirmed that
teller cash box #5, referenced on the "altered" slip, was not in operation on
July 14, 2011, so there was no sequence #70 at teller cash box #5 for that
day. (Id. at 73-79).
Detective Joseph Blaze conducted the police investigation in this case.
He identified Appellant as the person the detective had interviewed
regarding the missing deposits. Together, Detective Blaze and Appellant
reviewed the store deposit log, and Appellant acknowledged he was the
person responsible for the deposits at issue. Appellant gave Detective Blaze
no explanation for why the money was missing, but Appellant did confirm
the dates and times associated with each deposit in the log were correct.
Detective Blaze also said he provided Ms. Doheny with Appellant's
description, along with the dates and times stated in the log as Appellant
had verified. On cross-examination, Detective Blaze agreed Appellant
(Footnote Continued)
proponent. Thus, we give this supplemental information no further
consideration.
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denied taking any of the money. Detective Blaze also said his investigation
was primarily based on the deposit log and Appellant's admission that he
was responsible for the deposits at issue. Detective Blaze asked Ms. Doheny
to investigate the deposits and review the surveillance tapes associated with
the particular deposits. No one actually witnessed Appellant tampering with
the deposit slip or taking the money, but Appellant openly admitted he
carried the money from the store to the bank on the dates and times
recorded. No one actually knew if Appellant did not make the deposits, but
there was no evidence of the deposits or of him making the deposits either.
(Id. at 80-91). At the close of the Commonwealth's case -in -chief, defense
counsel moved for judgment of acquittal on the forgery count, because the
original deposit slip was not produced. The court granted the motion on that
count.
Next, Appellant testified he had worked for the Family Dollar store for
three years, during which he was promoted from a clerk position to assistant
manager and then to store manager. Appellant was the store manager in
September 2011. Appellant's duties as assistant manager and as manager
included taking cash deposits to the bank at least several times each week.
On the dates of the deposits at issue, the deposit log demonstrated someone
other than Appellant had verified the deposits in the log. Specifically, on
those dates Appellant either showed his assistant an empty bag or the bank
receipt. Appellant said he was shocked over the missing deposits. Appellant
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had no idea where the money went, but he assured the jury he did not keep
the money for "his personal gain." Appellant also stated he did not ever
change or alter any deposit receipts. On cross-examination, Appellant
confirmed no one ever went with him to make the bank deposits, he always
followed the store rules with respect to the deposits, but occasionally he
signed the log by mistake (in the wrong column) as the person who verified
a deposit. The transactions in question were all night drops, with no hand-
to-hand contacts with bank tellers during regular business hours. Appellant
claimed the deposit slip he gave to Mr. McDonald was exactly how the bank
had printed it and given it to Appellant. (Id. at 93-105). Following
Appellant's testimony, the defense rested. The court then colloquied
Appellant to confirm his choice to testify at trial, without presenting
character evidence, was freely and voluntarily made.
The Commonwealth's remaining charges against Appellant included
the four counts of theft by failure to make required disposition of funds
received. The jury convicted Appellant of only one count of theft, related to
the missing deposit of $2,900.83 for July 2011. The jury found Appellant
not guilty on the remaining theft counts.
The court sentenced Appellant on March 18, 2014, to three (3) years'
probation and ordered restitution in the amount of $2,900.83. On March 28,
2014, Appellant timely filed a post -sentence motion for a new trial,
challenging the weight of the evidence. Following a hearing, the court
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denied post -sentence relief by order entered July 14, 2014. Appellant timely
filed a notice of appeal on August 13, 2014. The court ordered Appellant to
file a concise statement of errors complained of on appeal pursuant to
Pa.R.A.P. 1925(b), and Appellant timely complied.
In a memorandum decision filed on December 22, 2015, a panel of
this Court (with one dissent) reversed Appellant's judgment of sentence and
remanded for a new trial. The panel majority agreed with Appellant that Ms.
Doheny's testimony on the bank surveillance videos violated the best
evidence rule. The panel addressed only this claim and, without further
analysis, simply concurred with the trial court's opinion that it had erred in
admitting that testimony at trial, the error was not harmless, and it
constituted per se reversible error. The trial court arrived at its conclusion,
citing Commonwealth v. Lewis, 623 A.2d 355, 358 (Pa.Super. 1993) as
dispositive. Due to this Court's treatment of Appellant's first issue, the panel
majority declined to address his second issue challenging the sufficiency of
the evidence.
The dissent took the position that Ms. Doheny's testimony on the
surveillance tapes arguably violated the best evidence rule in theory, but
admission of that limited testimony was harmless error, given its limited
substance compared to the other properly -admitted evidence of Appellant's
guilt. The dissent distinguished the Lewis case on several grounds,
including: (1) Lewis did not hold that any violation of the best evidence rule
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is reversible error per se; (2) the objectionable testimony in Lewis
concerned Mr. Lewis' actions on the videos along with the arresting officer's
interpretation of those actions, which raised the unfair inference that Mr.
Lewis knew his companion intended to remove merchandise from a store
without paying for it; (3) the arresting officer obtained his knowledge of Mr.
Lewis' actions solely from watching the videos; and (4) the properly
admitted testimony of the security guard was not independently cumulative
of the inferences raised in the objectionable testimony. The Lewis Court
also noted that the explanation given for the unavailability of the videos was
unsatisfactory. Therefore, the dissent concluded Lewis was distinguishable
from the present case and not dispositive. The dissent also addressed
Appellant's second issue challenging the sufficiency of the evidence as this
Court did in Lewis, even though Mr. Lewis obtained relief on appeal in the
form of a new trial. On March 1, 2016, this Court granted the
Commonwealth's application for en banc reargument and withdrew the
original memorandum decisions.
Appellant raises the following issues for en banc review:
DID THE TRIAL COURT ERR WHEN IT PERMITTED
TESTIMONY FROM A BANK ADMINISTRATOR REGARDING
WHAT SHE OBSERVED IN A SURVEILLANCE VIDEO, WHEN
THE VIDEO ITSELF WAS NOT ADMITTED INTO EVIDENCE,
IN VIOLATION OF THE BEST EVIDENCE RULE?
WAS THE EVIDENCE SUFFICIENT TO SUPPORT THE GUILTY
VERDICT IN THIS CASE WHERE THERE WAS NO PROOF OF
ANY CRIMINAL INTENT OR THAT [APPELLANT] BENEFITED
FROM THE MISSING FUNDS, RENDERING ANY GUILTY
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VERDICT THE PRODUCT OF CONJECTURE AND SURMISE?
(Appellant's en banc brief at 7).
In his first issue, Appellant argues Ms. Doheny had no first-hand
knowledge of what was depicted on the bank surveillance videos.
Specifically, Appellant contends Ms. Doheny's knowledge of the surveillance
videos was based solely on viewing the videos after the fact, without
contemporaneous observations of what was also captured on the videos.
Appellant avers Ms. Doheny reviewed the surveillance videos based on an
estimation of when the deposits might have been made, but she did not
review the videos for the entire nights in question; and she also viewed the
videos with a mere verbal description of Appellant and his car. Appellant
asserts Ms. Doheny's testimony relating her observations of the bank
surveillance videos violated the best evidence rule because the
Commonwealth failed to introduce at trial the actual videos Ms. Doheny had
viewed. Appellant avers the jury convicted him of the theft count linked to
Ms. Doheny's testimony regarding the surveillance videos. Appellant claims
admission of Ms. Doheny's testimony on the surveillance videos was not
harmless error because there was a reasonable possibility her testimony
contributed to the guilty verdict. Appellant concludes he is entitled to a new
trial. We disagree.
This Court has held:
"Admission of evidence is within the sound discretion of
the trial court and will be reversed only upon a showing
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that the trial court clearly abused its discretion."
Commonwealth v. Drumheller, 570 Pa. 117, 135, 808
A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123
S. Ct. 2284, 156 L. Ed. 2d 137 (2003) (quoting
Commonwealth v. Stallworth, 566 Pa. 349, 363, 781
A.2d 110, 117 (2001)). "Admissibility depends on
relevance and probative value. Evidence is relevant if it
logically tends to establish a material fact in the case,
tends to make a fact at issue more or less probable or
supports a reasonable inference or presumption regarding
a fact."
material Drumheller, supra (quoting
Stallworth, supra at 363,781 A.2d at 117-18).
Commonwealth v. Reese, 31 A.3d 708,716 (Pa.Super. 2011) (en banc).
The best evidence rule provides:
Rule 1002. Requirement of the Original
An original writing, recording, or photograph is required in
order to prove its content unless these rules, other rules
prescribed by the Supreme Court, or a statute provides
otherwise.
Comment: Pa.R.E. 1002 differs from F.R.E. 1002 to
eliminate the reference to Federal law.
This rule corresponds to the common law "best evidence
rule." See Hera v. McCormick, 425 Pa.Super. 432,625
A.2d 682 (1993). The rationale for the rule was not
expressed in Pennsylvania cases, but commentators
have mentioned four reasons justifying the rule.
(1) The exact words of many documents, especially
operative or dispositive documents, such as deeds,
wills or contracts, are so important in determining a
party's rights accruing under those documents.
(2) Secondary evidence of the contents of
documents, whether copies or testimony, is
susceptible to inaccuracy.
(3) The rule inhibits fraud because it allows the
parties to examine the original documents to detect
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alterations and erroneous testimony about the
contents of the document.
(4) The appearance of the original may furnish
information as to its authenticity.
5 Weinstein & Berger, Weinstein's Evidence § 1002(2)
(Sandra D. Katz rev. 1994).
The common law formulation of the rule provided that
the rule was applicable when the terms of the document
were "material." The materiality requirement has not
been eliminated, but is now dealt with in Pa.R.E.
1004(d). That rule provides that the original is not
required when the writing, recording or photograph is not
closely related to a controlling issue.
The case law has not been entirely clear as to when a
party is trying "to prove the content of a writing,
recording, or photograph." However, writings that are
viewed as operative or dispositive have usually been
considered to be subject to the operation of the rule. On
the other hand, writings are not usually treated as
subject to the rule if they are only evidence of the
transaction, thing or event. See Hamill-Quinlan, Inc.
v. Fisher, 404 Pa.Super. 482, 591 A.2d 309 (1991);
Noble C. Quandel Co. v. Slough Flooring, Inc., 384
Pa.Super. 236, 558 A.2d 99 (1989). Thus, testimony as
to a person's age may be offered; it is not necessary to
produce a birth certificate. See Commonwealth ex rel.
Park v. Joyce, 316 Pa. 434, 175 A. 422 (1934). Or, a
party's earnings may be proven by testimony; it is not
necessary to offer business records. See Noble C.
Quandel Co., supra.
Traditionally, the best evidence rule applied only to
writings, but Pa.R.E. 1002 may be applicable to
recordings or photographs. However, recordings and
photographs are usually only evidence of the transaction,
thing or event. It is rare that a recording or photograph
would be operative or dispositive, but in cases involving
matters such as infringement of copyright, defamation,
pornography and invasion of privacy, the requirement for
the production of the original should be applicable.
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There is support for this approach in Pennsylvania law.
See Commonwealth v. Lewis, 424 Pa.Super. 531, 623
A.2d 355 (1993) (video tape); Anderson v.
Commonwealth, 121 Pa.Cmwlth. 521, 550 A.2d 1049
(1988) (film).
Pa.R.E. 1002 and Comment. "The rationale for the rule is readily apparent:
in light of the added importance that the fact -finder may attach to the
written word, it is better to have available the exact words of a writing, to
prevent the mistransmitting [of] critical facts which accompanies the use of
written copies or recollection, and to prevent fraud." Lewis, supra at 358.
Surveillance videotapes "present the same type of circumstances which the
best evidence rule was designed to guard against," namely testimony about
the content of a videotape when the original tape has not been produced or
admitted. Id.
Rule 1004 of the Pennsylvania Rules of Evidence further provides:
Rule 1004. Admissibility of Other Evidence of
Content
An original is not required and other evidence of the
content of a writing, recording, or photograph is admissible
if:
(a) all the originals are lost or destroyed, and not by the
proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial
process;
(c) the party against whom the original would be offered
had control of the original; was at that time put on notice,
by pleadings or otherwise, that the original would be a
subject of proof at the trial or hearing; and fails to produce
it at the trial or hearing; or
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(d) the writing, recording, or photograph is not closely
related to a controlling issue.
Pa.R.E. 1004. Thus, Rule 1002 is subject to the exceptions found in Rule
1004. Commonwealth v. Loughnane, 128 A.3d 806, 813 (Pa.Super.
2015). Where the best evidence rule is at issue, and an original cannot be
produced, the proponent must show that a diligent search was conducted to
locate the original and the original was lost or destroyed through no fault of
the proponent. Id. Upon a satisfactory showing in this regard, the
production of the original will be excused and secondary evidence is
admissible. Id.
"Nevertheless Rule 1002 is applicable only in circumstances where the
contents of the writing, recording or photograph are integral to proving the
central issue in a trial. ... Consequently, if the Commonwealth is introducing
a writing, recording, or photograph at trial, Rule 1002 requires that the
original be introduced only if the Commonwealth must prove the contents of
the writing, recording or photograph to establish the elements of its case."
Commonwealth v. Fisher, 764 A.2d 82, 88 (Pa.Super. 2000) (citing
Commonwealth v. Townsend, 747 A.2d 376, 380 (Pa.Super. 2000),
appeal denied, 563 Pa. 661, 759 A.2d 385 (2000) (stating: "The best
evidence rule is controlling only if the terms of [the proposed evidence] must
be proved to make a case or provide a defense")). "The rule is not
implicated just because evidence is relevant;" the rule applies if the writing,
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recording, or photograph is necessary to prove the elements of a case. Id.
at 381. In other words, the content of the video must be material to, and
not just mere evidence of, the issues at bar for the best evidence rule to
apply. Lewis, supra at 358. "If the Commonwealth does not need to prove
the content of the writing or recording to prove the elements of the offense
charged, then the Commonwealth is not required to introduce the original
writing or recording." Commonwealth v. Dent, 837 A.2d 571, 590
(Pa.Super. 2003). See also Fisher, supra (holding no violation of best
evidence rule occurred with admission of duplicate tape recordings of
defendant's taunting voice mail messages, where tapes did not establish
fundamental components of any offenses charged); Townsend, supra
(holding no violation of best evidence rule occurred where trial court allowed
detective to testify regarding content of defendant's written confession, even
though written confession was not admitted into evidence; content of
confession made persuasive evidence for Commonwealth's case but was not
necessary to establish elements of crimes of burglary and assault, which had
no elements requiring proof of content of confession or any other writing).
The Comment to Rule 1002 suggests "recordings and photographs are
usually only evidence of the transaction, thing or event. It is rare that a
recording or photograph would be operative or dispositive...." Pa.R.E. 1002
Comment.
Neither case law nor the rules of evidence are entirely clear on the
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distinction between "material to," "operative," "dispositive," and "proof of"
the transaction, thing, or event, as opposed to "mere evidence of" or
"compelling evidence" of the transaction, thing, or event. See, e.g., Hera
v. McCormick, 625 A.2d 682 (Pa.Super. 1993) (stating application of best
evidence rule is limited to those situations where content of item is at issue
and must be proved to make case or provide defense); Hamill-Quinlan,
supra (suggesting secondary evidence is admissible if relevant but not if it
is dispositive of issues).
Case law, however, does unequivocally demonstrate that a violation of
the best evidence rule is subject to the harmless error test and does not
automatically rise to the level of reversible error per se in every case where
the rule is truly violated. See Lewis, supra. "Not all errors at trial,
however, entitle an appellant to a new trial, and [t]he harmless error
doctrine, as adopted in Pennsylvania, reflects the reality that the accused is
entitled to a fair trial, not a perfect trial...." Reese, supra at 719 (quoting
Commonwealth v. West, 834 A.2d 625, 634 (Pa.Super. 2003), appeal
denied, 586 Pa. 712, 889 A.2d 1216 (2005)). Harmless error is "a technique
of appellate review designed to advance judicial economy by obviating the
necessity for a retrial where the appellate court is convinced that a trial error
was harmless beyond a reasonable doubt." Commonwealth v. Koch, 39
A.3d 996, 1006 (Pa.Super. 2011). "An error will be deemed harmless where
the appellate court concludes beyond a reasonable doubt that the error could
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not have contributed to the verdict." Commonwealth v. Mitchell, 576 Pa.
258, 280, 839 A.2d 202, 214 (2003).
The Commonwealth bears the burden to establish that the error was
harmless. Id. at 280, 839 A.2d at 215. The Commonwealth satisfies the
harmless error burden when the Commonwealth is able to show:
(1) the error did not prejudice the defendant or the
prejudice was de minimis; or (2) the erroneously admitted
evidence was merely cumulative of other untainted
evidence which was substantially similar to the erroneously
admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and
the prejudicial effect of the error so insignificant by
comparison that the error could not have contributed to
the verdict.
Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa.Super. 2004),
appeal denied, 582 Pa. 673, 868 A.2d 1199 (2005) (internal citation
omitted) (emphasis added). The harmless error test is expressed in the
disjunctive. See id.
Theft by failure to make required disposition of funds received is
defined as follows:
§ 3927. Theft by failure to make required
disposition of funds received
(a) Offense defined.-A person who obtains property
upon agreement, or subject to a known legal obligation, to
make specified payments or other disposition, whether
from such property or its proceeds or from his own
property to be reserved in equivalent amount, is guilty of
theft if he intentionally deals with the property obtained as
his own and fails to make the required payment or
disposition. The foregoing applies notwithstanding that it
may be impossible to identify particular property as
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belonging to the victim at the time of the failure of the
actor to make the required payment or disposition.
18 Pa.C.S.A. § 3927(a).
Instantly, the Commonwealth originally charged Appellant with one
count of forgery and four counts of theft by failure to make required
disposition of funds received, related to four missing bank deposits for the
Family Dollar store located in Penn Hills, Pennsylvania. At the end of the
Commonwealth's case -in -chief, the court granted the defense motion for
acquittal on the forgery charge. Ultimately, the jury convicted Appellant
only of the one theft count corresponding to the missing deposit associated
with the altered deposit slip Appellant had offered to the investigation. The
court sentenced Appellant to three years' probation and ordered restitution
in the amount of $2,900.83, which was the specific amount associated with
the single theft conviction for the missing deposit of July 2011.
At Appellant's jury trial, Ms. Doheny briefly testified regarding her
review of PNC bank surveillance videos. Before her testimony about the
videos, defense counsel objected citing the best evidence rule, because Ms.
Doheny had viewed the videos after the events at issue, she had no personal
knowledge of the events, and the original videos were not offered into
evidence. The court overruled the objection, declined to preclude this
particular testimony, and invited defense counsel to cross-examine the
witness vigorously. Ms. Doheny testified as follows:
PROSECUTOR: Ma'am, were you able to view any
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surveillance video from PNC?
MS. DOHENY: Yes.
PROSECUTOR: Were you given a description of
[Appellant]?
MS. DOHENY: Yes. They would call me. I would ask
them [for a] general description, and also I always ask for
type of vehicle just in case I see them going in and out of
the lot.
PROSECUTOR: Were you asked to view the video for
certain days?
MS. DOHENY: Yes. I don't recall the days, but they
do ask me in any investigation to view video. I would
review it for half an hour before the time and half an hour
after the time, so I'll look for an hour. If somebody says
they are at the bank at 12:00, I'll look at 11:30 to 12:30,
giving some leeway there.
PROSECUTOR: Where do those cameras point to?
What is the angle on those cameras?
MS. DOHENY: There [are] angles everywhere. They
are on the teller line. They are on the night depository
outside. They are on the ATM outside. They are on the
ATM inside, night depository inside also.
PROSECUTOR: At any point while you were viewing
those videos, did you see someone matching the
description of [Appellant] on those videos?
MS. DOHENY: No, not during the time frame that
they gave me to look at.
PROSECUTOR: What about his vehicle?
MS. DOHENY: No, not during the time frame.
(N.T. Trial, 3/17-18/14, at 72-73.) On cross examination, Ms. Doheny
testified as follows:
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DEFENSE COUNSEL: Good afternoon, ma'am. I'll ask you
some questions as well. The video you're speaking of, the
time frame you were given, that was provided to you by
the police; is that correct?
MS. DOHENY: Yes.
DEFENSE COUNSEL: So that was not a time frame that was
provided to you by [Appellant], correct?
MS. DOHENY: Correct.
DEFENSE COUNSEL: You've never met-at the time that
you were viewing these videos, you had never met
[Appellant], correct?
MS. DOHENY: Correct.
DEFENSE COUNSEL: And so your only physical description
of him was a photo that you looked at; is that correct?
MS. DOHENY: I don't ask for a photo. I ask for
No.
a description, and then I look at the area where they are
making the deposit and then the date and the time.
DEFENSE COUNSEL: So you didn't even look at a photo of
[Appellant]. You just had a verbal description of what he
looked like?
MS. DOHENY: Yes.
(See id. at 73-74.) On redirect examination, the Commonwealth inquired:
PROSECUTOR: If you noticed anybody-while you
were viewing the video, if you noticed anybody closely
matching the description that you were given, would you
have told the police?
MS. DOHENY: I would have told them, and I would
have printed a photo.
(See id. at 78-79.) This narration represents the entirety of Ms. Doheny's
testimony on the surveillance videos, which was based wholly on her viewing
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the videos at a time and date after the recordings had been made. Her
testimony was not based on any contemporaneous personal observations or
personal knowledge of what was depicted on the videos. Likewise, Ms.
Doheny did not identify the exact dates and times of the surveillance videos
she had viewed. To the extent she spoke generally about how and what she
does to conduct an investigation like this one, her testimony was proper and
cannot be deemed violative of the best evidence rule.
No one disputes that Appellant had to be physically at the bank to
make deposits. Under Fisher, supra and Townsend, supra, however, the
"best evidence rule" analysis requires us to ascertain whether the
Commonwealth had to prove the factual content of the videos to establish
the elements of the theft offense(s). When Ms. Doheny spoke about
watching surveillance videos to look for Appellant and/or his vehicle, that
testimony was related to the crimes charged.
Here, the Commonwealth had to prove Appellant was responsible for
but did not make the cash deposits. Appellant's nonappearance at the bank
at various unclear times was relevant to the Commonwealth's case. See 18
Pa.C.S.A. § 3927(a). If Ms. Doheny did not see Appellant on the tapes she
viewed, then her testimony established only that no one matching a verbal
description of Appellant and no vehicle matching a verbal description of his
vehicle appeared at the bank at those limited, unidentified dates and times.
Thus, Ms. Doheny's testimony on the factual content of the videos she saw
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was related to the case, but it was arguably mere evidence of Appellant's
complete failure to make the required disposition of the funds in his
possession at any time.
We conscientiously defer to the best evidence rule when the case
requires proof of the factual content of a writing, document, photograph, or
videotape of someone's actions to prove a culpable deed, or to show the
nonexistence of a guilty act. The present case, however, involved testimony
about videotapes where Appellant did not appear at all. So the best
evidence rule seems more attenuated and arguably did not require
production of the original surveillance tapes Ms. Doheny referred to in her
testimony. See Fisher, supra; Townsend, supra.
To prove Appellant did not make the deposits, the Commonwealth
introduced other evidence, including an altered deposit slip and the lack of
bank records for any of the four deposits in question. At trial, Ms. Doheny
also testified she conducted a search of the records and teller electronic
journals from the PNC branch at Penn Hills for any deposits made to the
Family Dollar account on July 14, 2011, in the amount of $2,900.83. Ms.
Doheny testified the bank had no record of a deposit in that amount on the
date of the deposit slip Appellant produced. Moreover, Ms. Doheny testified
the deposit slip did not appear to be genuine; not only did the deposit slip
appear to be doctored from an earlier confirmed deposit slip, but also the
deposit slip indicated it was associated with a cash box that was not in
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operation on July 14, 2011. This additional evidence further signified
Appellant had not made a deposit of $2,900.83 on July 14, 2011, as his
deposit slip indicated. (See N.T. Trial at 64-69.)
The properly admitted evidence at trial demonstrated: (1) Appellant
was the sole person responsible for depositing $2,900.83 into the Family
Dollar corporate PNC account; (2) a specific cash deposit was not placed in
the account or received by PNC Bank on the date of the deposit slip; (3) an
internal investigation revealed the missing $2,900.83 deposit was not a
mistake on the part of the bank or its employees, and the amount in
question had not been received or deposited into any other PNC account;
and (4) after learning of the investigation, Appellant offered a deposit slip for
the amount of $2,900.83, which had been altered. In reviewing previous
deposits from Family Dollar, Ms. Doheny was able to determine that a
deposit had been made with the same sequence number and in the same
cash box during June 2011, one month earlier, but not on July 14, 2011.
Ms. Doheny reconfirmed that teller cash box #5, referenced on the "altered"
slip, was not in operation on July 14, 2011, so there was no sequence #70
at teller cash box #5 for that day.
The jury's verdict makes clear the admission of the challenged
testimony did not control the verdict. Plainly, the jury was able to sort out
the relevant evidence, acquit Appellant of three theft offenses, and convict
him solely of the theft related to the modified deposit slip. Given this
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verdict, we hold that any prejudicial effect associated with Ms. Doheny's
limited testimony was de minimis by comparison to the properly admitted
and uncontradicted evidence of Appellant's guilt. See Passmore, supra.
Therefore, even if the admission of Ms. Doheny's limited testimony regarding
the surveillance videos was error, it was harmless error. See Mitchell,
supra. Accordingly, we reject Appellant's contention that his conviction on
the one count of theft was tied directly to Ms. Doheny's testimony about
what she did not see on the bank surveillance tapes, suggesting her video
testimony was essential to the jury's verdict. Nowhere did Ms. Doheny state
she only reviewed the video from July 14, 2011. In fact, Ms. Doheny did not
mention any specific dates in her testimony. Her testimony simply indicated
she had reviewed surveillance footage from multiple days. (See N.T. Trial at
72-73.) We similarly decline the trial court's invitation to remand the case
for a new trial on this basis.
Nonetheless, we can extract two principles from reading the best
evidence rule in harmony with prevailing case law: (1) whether the best
evidence rule applies to bar admission of evidence depends on the facts and
circumstances of the particular case; and (2) nothing in Pennsylvania law
renders a violation of the best evidence rule as per se reversible error.
Thus, Appellant's first issue merits no relief.
In his second issue, Appellant argues he made the deposits and the
deposits were verified by an assistant manager at the store. Appellant
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asserts a district manager also reviewed and signed the deposit log.
Appellant contends he accepted ultimate responsibility for ensuring the cash
proceeds were properly deposited but consistently denied that he kept any
of the money for himself. Appellant emphasizes his willingness to work with
authorities to discover what happened to the deposits. Appellant avers Mr.
McDonald testified that deposit slips sometimes went missing from the store
because they were kept in an unlocked filing cabinet accessible to many
people. Appellant also accentuates how the Commonwealth failed to
produce any evidence that Appellant had used the money for personal
expenditures or otherwise intentionally dealt with the money as his own.
Appellant asserts Detective Blaze did not search Appellant's home, car, or
personal bank account, or try to discover if Appellant had kept the missing
money for himself. Appellant submits the Commonwealth introduced no
evidence of the location of the money in question. Appellant maintains he
loved his job at Family Dollar, where he had worked for three years without
incident, and no evidence suggested he had a motive to steal money from
the store. Appellant concludes the evidence was insufficient to convict him
of theft by failure to make required disposition of funds. We disagree.
Review of a challenge to the sufficiency of the evidence implicates
these principles:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted...in
the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact -finder to find every
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element of the crime beyond a reasonable doubt. In
applying [the above] test, we may not weigh the evidence
and substitute our judgment for the fact -finder. In
addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant's guilt may be resolved by the fact -finder unless
the evidence is so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the
combined circumstances. The Commonwealth may sustain
its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire
record must be evaluated and all evidence actually
received must be considered. Finally, the [trier] of fact
while passing upon the credibility of witnesses and the
weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.
Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)). Theft by failure to make
required disposition of funds received has four elements:
1) the obtaining of the property of another; 2) subject to
an agreement or known legal obligation upon the receipt to
make specified payments or other disposition thereof; 3)
intentional dealing with the property obtained as the
defendant's own; and 4) failure of the defendant to make
the required disposition of the property.
Commonwealth v. Morrissey, 540 Pa. 1, 8, 654 A.2d 1049, 1052 (1995);
18 Pa.C.S.A. § 3927.
Instantly, in addition to Ms. Doheny's testimony regarding the bank
records and evidence of the deceptive deposit slip, the Commonwealth
introduced the testimony of Mr. McDonald, the Loss Prevention Director at
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Family Dollar at the time of Appellant's employment. Mr. McDonald testified
at trial: (1) he was asked to conduct an investigation for the Penn Hills
Family Dollar in September 2011, regarding missing deposits; (2) he
reviewed the store's deposit logs and saw Appellant's signature was located
next to a deposit of $2,900.83 that Appellant claimed he made at PNC Bank
in July 2011; Mr. McDonald further verified with the Family Dollar corporate
office that this deposit was not received; he then interviewed Appellant, who
admitted he was responsible for the July 2011 deposit and signed off on it in
the logbook after he purportedly made the deposit at the bank; Appellant
also gave Mr. McDonald a written statement documenting what Appellant
had told Mr. McDonald; (3) Mr. McDonald examined the deposit slip
Appellant offered, from July 14, 2011, and determined it was an altered,
previous deposit slip because the sequence number and other information on
it actually corresponded to a deposit made the previous month, on June 7,
2011; (4) Mr. McDonald verified that the store managers were not permitted
to keep the nightly deposits. (See N.T. Trial at 24-62.)
The Commonwealth also presented the testimony of Detective Joseph
Blaze from the Penn Hills Police Department who conducted an outside
investigation in 2011. Detective Blaze said he interviewed Appellant
regarding the missing deposits, and Appellant explained that he took the
$2,900.83 to PNC and deposited it. Detective Blaze stated Appellant could
not account for the missing money. (Id. at 81-84). Viewed in the light
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most favorable to the Commonwealth as verdict winner, the evidence was
sufficient to prove Appellant had the Family Dollar funds for deposit, he was
responsible to make the deposit, he failed to make the required deposit, and
produced fabricated evidence. The Commonwealth did not have to prove
what Appellant actually did with the money. Thus, the evidence was
sufficient to sustain the verdict. See Morrissey, supra; Hansley, supra;
18 Pa.C.S.A. § 3927(a). Accordingly, we affirm.
Judgment of sentence affirmed.
Judgment Entered.
J seph D. Seletyn,
Prothonotary
Date: 5/9/2017
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