Com. v. Dekeyser, W. ( 2019 )

J-S53042-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM DEKEYSER :
:
Appellant : No. 3292 EDA 2018
Appeal from the Judgment of Sentence Entered September 14, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0003079-2017
BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 19, 2019
Appellant William Dekeyser appeals from the judgment of sentence
imposed following his jury trial convictions for persons not to possess firearms,
carrying a firearm without a license, carrying firearms on public streets in
Philadelphia, possessing instruments of crime, and simple assault.1 Appellant
argues that the trial court abused its discretion by allowing the jury to watch
an altered version of the Commonwealth’s video evidence during
deliberations. We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
[Appellant] pointed a loaded gun at Jervine Oates on March 13,
2017 at about 5:30 p.m., as both men stood less than two feet
apart from each other at the corner of 16th Street and Nedro
Avenue. Officers Timothy McGonigle and Judith Kinniry observed
____________________________________________
1 18 Pa.C.S. §§ 6105, 6106, 6108, 907, and 2701, respectively.
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[Appellant] pointing the gun as they travelled eastbound along
Nedro Avenue in their marked police car. Both officers got out of
the car, drew their weapons, announced that they were police,
and told [Appellant] to drop the weapon. [Appellant] turned to
look at the officers and then ran. Because [Appellant] was about
fifty to sixty feet away from the officers, they got back into the
car and drove to catch up to him, turning northbound on 16th
Street, but ultimately lost sight of him after about ten seconds.
After losing sight of [Appellant], the officers exited the car. Officer
Kinniry noticed that people outside were pointing to where there
was a gun on the ground, about fifteen to twenty feet away from
where she initially saw [Appellant] pointing the gun at Mr. Oates.
She stood by the gun to preserve the chain of custody, and
radioed other officers for backup. Mr. Oates nervously stood
nearby until [Appellant] was apprehended.
Meanwhile, Officer McGonigle went into a store at the corner of
16th and Nedro, where he knew that surveillance cameras were
trained on that corner. By reviewing the surveillance video of
three separate cameras, he could see [Appellant] point the gun,
run, and enter the rear door of a property at 1602 Widener Place,
which is at the next block north of Nedro. Officer Kinniry briefly
asked another officer to stand by the gun, and then she entered
the store to confirm that this was [Appellant’s] flight path. Officer
McGonigle exited the store and told backup officers to try to
surround the front and back entrances of 1602 Widener Place.
Officer McGonigle then stood by the gun, as Officer Kinniry and
another officer went to one entrance of 1602 Widener Place, and
Officer John DeSanto and his partner went to the other entrance
of 1602 Widener Place. The officers yelled into the property for
[Appellant] to come out. [Appellant] told the officers that he did
not have any guns, exited a back door or basement door of the
property with his hands up, and was then arrested. Officer Kinniry
testified that about ten minutes, at most, passed between the
time that she recovered the gun and the time that [Appellant] was
arrested.
* * *
DNA analysis of the gun recovered revealed that at least three
individuals with distinct DNA profiles touched the gun. One of
those individuals was [Appellant] and [Appellant] left most of the
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DNA on the sample. There were no fingerprints recovered from
the gun.
Trial Ct. Op., 4/24/19, at 2-4 (record citations and footnotes omitted).
On April 12, 2017, the Commonwealth filed a criminal information
charging Appellant with multiple offenses related to his possession of the
firearm and assault. Appellant proceeded to a jury trial on April 2, 2018. At
trial, the Commonwealth played a recording of the surveillance videos for the
jury.
During the Commonwealth’s case-in-chief, this evidence was
presented in a split-screen format that compiled simultaneous
footage from four separate surveillance cameras as a 2x2 grid.
During deliberations, the jury asked to review this video evidence
again. Outside of the jury’s presence, [the trial c]ourt directed
the Commonwealth to play one video camera [angle] at a time,
and to play only the clips from the three video cameras that
allegedly depicted [Appellant].
Id. at 7 (record citations and footnote omitted). By showing one camera angle
at a time, the altered video appeared larger than the video shown during the
Commonwealth’s case-in-chief. Id.
Appellant objected to the trial court’s decision to alter the format of the
video:
[Appellant’s Counsel]: Your Honor, my basis of objection is that
the video should be replayed in the same manner it was [played]
for trial. [The prosecutor] could have―if he wanted to play this
video [featuring one camera angle at a time] for the jury, he could
have . . . done that during trial. However, . . . it didn’t happen
that way. He played . . . the version that had three different
videos playing at the same time. That’s the decision that the
Commonwealth made. They can’t go back now and try to―
THE COURT: It’s not a different video. It’s the same video.
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* * *
[Appellant’s Counsel]: But I’m saying they can’t . . . make
highlights or alter the manner in which it was played for the jury.
It’s counsel’s job and the Commonwealth’s job to present their
evidence as clear as possible. I mean, when he presented
evidence, he presented it in a manner that he chose to. You can’t
look back and say I should have presented evidence differently.
N.T. Trial, 4/4/18, at 10-11. The trial court overruled Appellant’s objection.
Shortly thereafter, the jurors entered the courtroom and the trial court
permitted them to watch the altered video. The trial court did not allow the
jurors to leave the jury box, but it did permit the jurors to stand up within the
box for a better view of the screen. After the jurors watched the altered video,
they exited the courtroom and continued deliberations.
Ultimately, the jury convicted Appellant of the aforementioned offenses.
On September 14, 2018, the trial court sentenced Appellant to five to ten
years’ imprisonment for persons not to possess firearms. The trial court
imposed no further penalties for the remaining convictions. Appellant timely
filed a post-sentence motion on September 24, 2018, which the trial court
denied on October 26, 2018.
On November 13, 2018, Appellant timely filed a notice of appeal. The
trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, which Appellant timely filed on November 20,
2018.2 The trial court filed a responsive opinion, concluding that it did not
abuse its discretion by allowing the jury to view the video evidence during
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2Appellant’s Rule 1925(b) statement raised three issues. However, Appellant
now presents only one of those issues for this Court’s review.
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deliberations. The trial court emphasized that “[w]hile the format of the video
presented to the deliberating jury differed from the format of the same video
played three times for the jury during trial, the enlarged single-[camera angle]
format did not distort the exhibit to the extent that it could be characterized
as ‘different’ evidence.” Trial Ct. Op. at 8 (emphasis in original). Moreover,
the trial court determined that any error was harmless. See id. at 9-10.
Appellant now raises one issue for our review:
Did not the [trial] court abuse its discretion in permitting the jury
to view a magnified version of a video clip during deliberations,
where the video had not been magnified when it was shown during
the trial and admitted into evidence?
Appellant’s Brief at 3.
Relying on Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super.
1999), Appellant argues that a deliberating jury may only review trial exhibits
“in the same manner as [the exhibits] were presented during trial.” Id. at
12. In the instant case, Appellant contends that “the video shown to the
deliberating jurors was shown in an altered and magnified format.” Id. at 11.
Because of the altered format, Appellant asserts that video was fundamentally
different from the video shown to the jury during the Commonwealth’s case-
in-chief. Id. Further, Appellant insists that the trial “court’s conscious object
was to have the jury review the evidence in a different manner from the
manner in which the evidence was initially presented at trial.” Id. at 12
(emphasis in original). Under these circumstances, Appellant maintains that
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“it was an abuse of discretion for the [trial] court to order the videos replayed
for the jury in magnified form.” Id. at 16.
Our review is informed by Pa.R.Crim.P. 646, which states:
(A) Upon retiring, the jury may take with it such exhibits as
the trial judge deems proper, except as provided in paragraph (C).
* * *
(C) During deliberations, the jury shall not be permitted to
have:
(1) a transcript of any trial testimony;
(2) a copy of any written or otherwise recorded confession
by the defendant;
(3) a copy of the information or indictment; and
(4) except as provided in paragraph (B), written jury
instructions.
Pa.R.Crim.P. 646(A), (C); see also Commonwealth v. Morton, 774 A.2d
750, 753 (Pa. Super. 2001) (holding the trial court did not violate the prior
version of Rule 646 where, during deliberations, the jury was placed in the
jury box, permitted to review a written confession briefly, not permitted to
deliberate while in the jury box, and given a cautionary instruction).
“Whether an exhibit should be allowed to go out with the jury during its
deliberation is within the sound discretion of the trial judge.”
Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012) (citations
omitted).
We point out that the trial is the forum for finding truth. The jury’s
deliberations represent the process by which the fact finders
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establish what they believe to be true. For policy reasons, where
materials inform a jury and aid it in the difficult task of
determining facts, the jury should be permitted to study those
materials during its deliberations.
Commonwealth v. Strong, 836 A.2d 884, 886 (Pa. 2003) (citation and
emphasis omitted).
“The underlying reason for excluding certain items from the jury’s
deliberations is to prevent placing undue emphasis or credibility on the
material, and de-emphasizing or discrediting other items not in the room with
the jury.” Barnett, 50 A.3d at 194 (citations omitted). “If there is a likelihood
the importance of the evidence will be skewed, prejudice may be found; if not,
there is no prejudice per se and the error is harmless.” Id. (citations omitted).
“Under this doctrine, an error may be harmless where the properly admitted
evidence of guilt is so overwhelming and the prejudicial effect of the error is
so insignificant by comparison that it is clear beyond a reasonable doubt that
the error could not have contributed to the verdict.” Strong, 836 A.2d at 887
(citation and quotation marks omitted).
In Lilliock, “both parties used a [video] presenter, a video machine that
enlarges a regular photograph on a video monitor, to assist them in presenting
photographic evidence to the jury.” Lilliock, 740 A.2d at 243. During
deliberations, the jury did not have access to a video presenter.
Consequently, the trial court allowed the jury to use a magnifying glass to
review the photographs during deliberations.
On appeal, the appellant argued that the jury’s use of the magnifying
glass violated a prior version of Rule 646. The Lilliock Court disagreed:
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The expert witnesses relied upon an examination of the
photograph during their testimony, and the Commonwealth
presented the evidence via the video presenter. The magnifying
lens was used by the jury to view the photographs in the same
manner as they were presented during trial. This procedure
assisted the jury in its truth-determining process. Thus, we
conclude that the trial court did not err or abuse its discretion in
allowing the jury to utilize a magnifying lens during deliberations.
Id. (emphasis added).
Instantly, the Commonwealth presented a “split-screen format that
compiled simultaneous footage from four separate surveillance cameras as a
2x2 grid” during its case-in-chief. Trial Ct. Op. at 7. During deliberations,
however, the trial court responded to the jury’s request to review this evidence
by directing the Commonwealth to present video from one camera angle at a
time. Id. The trial court determined that it did not err in ordering the
presentation of a different version of the video, because “the enlarged, single-
[camera angle] format of the video played for the deliberating jury was the
same evidence already played for the jury.” Id. at 6 (emphasis omitted).
Although the trial court correctly noted that the deliberating jury viewed “the
same evidence,” it was not presented “in the same manner” as the video
played during the Commonwealth’s case-in-chief. See Lilliock, 740 A.2d at
243.
Nevertheless, the Commonwealth’s properly admitted evidence was
overwhelming. See Strong, 836 A.2d at 887. As the trial court noted:
Officers McGonigle and Kinniry directly observed [Appellant] point
a gun at someone and then flee after they announced their
presence. Bystanders pointed Officer Kinniry to a firearm on the
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ground along [Appellant’s] flight path. There are no discernible
issues with the chain of custody of that firearm, and the DNA on
the firearm belongs primarily to [Appellant]. Officer McGonigle
looked at nearby surveillance footage to determine [Appellant’s]
flight pattern, leading to the discovery of [Appellant] inside of a
nearby vacant building where there was only one item of
clothing―the hoodie that the officers allegedly saw [Appellant]
wearing as he fled from them. The surveillance footage merely
corroborates the officers’ eyewitness testimony and aspects of
their investigation. . . .
Trial Ct. Op. at 10-11 (citations omitted).
Additionally, the Commonwealth entered into evidence two
photographs, which were “still shots” taken directly from the surveillance
videos. See N.T. Trial, 4/3/18, 38-39. The photographs depicted an
individual in a gray sweatshirt pointing a gun at another individual. See
Commonwealth’s Exs. 22-23. Unlike the video played during the
Commonwealth’s case-in-chief, the photographs each featured one image
from a single camera angle. Id.
In light of the Commonwealth’s overwhelming evidence, the prejudicial
effect of allowing the deliberating jury to view the altered video was so
insignificant by comparison that it is clear beyond a reasonable doubt that any
error was harmless. See Strong, 836 A.2d at 887. Accordingly, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/19
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