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