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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


                                       - 21 -
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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

                                       - 25 -
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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


                                         - 26 -
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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


                                             - 27 -
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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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