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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA

                 v.


    JESSICA L. GAMROD

                        Appellant              :   No. 180 WDA 2018

              Appeal from the Judgment of Sentence May 31, 2017
              In the Court of Common Pleas of Washington County
              Criminal Division at No(s): CP-63-CR-0000916-2013


BEFORE:      PANELLA, P.J., LAZARUS, J., and STRASSBURGER*, J.

MEMORANDUM BY PANELLA, P.J.:                             FILED AUGUST 13, 2019

        Appellant, Jessica    L.    Gamrod, challenges the judgment of sentence

entered in the Washington County Court of Common Pleas, following her

conviction for criminal mischief.' We affirm.

        On the evening of November 23, 2012, Appellant arrived at the

apartment of her ex -boyfriend, Frank Tustin. Appellant and Tustin informally

shared custody of their young son, and              so   remained in constant,   if

quarrelsome, contact. On the date in question, Appellant began pounding on

the apartment door and yelling at Tustin to open it. Tustin declined to do so,

as   Appellant had previously fought with Tustin about his relationship with

Celeste Marshall, who was in Tustin's apartment at the time.



     Retired Senior Judge assigned to the Superior Court.

'   18 Pa.C.S.A. §    3304(a)(5).
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        Appellant continued banging on the door and shouting for five to ten

minutes. During this time, Appellant threatened to slash Tustin's car tires.

Tustin warned Appellant not to harm his car, as the apartment building had

surveillance cameras. Appellant eventually left, and Tustin and Marshall went

outside to confirm Tustin's car was undamaged. Marshall departed       a   few hours

later without further incident.

        One or two days later, Marshall noticed    a   long, jagged scrape running

down the passenger side of her vehicle. She told Tustin she believed Appellant

had caused the damage. Tustin contacted the manager of his apartment

building, who checked the complex's security tapes and alerted Tustin to

footage of   a   woman using keys to scratch Marshall's vehicle. Marshall gave

the videotape to police.

        Appellant was charged with criminal mischief, and proceeded to      a   bench

trial. Following trial on July 30, 2014, the court convicted Appellant. On

Appellant's request, the court ordered      a   pre -sentence investigation report

("PSI") and delayed sentencing. However, the probation office did not receive

the order.

        After realizing Appellant had not been sentenced, the court issued          a

second order for preparation of    a PSI   on April 4, 2017, and held sentencing

shortly thereafter. The court did not impose jail time or probation, but ordered

Appellant to pay prosecution costs and restitution of $2,087.69     - the expense
Marshall and her insurance company incurred in repairing Marshall's car.



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Appellant filed   a   timely notice of appeal, and this case   is   now properly before

us.

        We begin with Appellant's challenge to the admission of the video

evidence from the apartment building's parking lot. She claims the video

lacked proper authentication, and was therefore inadmissible. We disagree.

        The admission or exclusion of evidence is within the sound
        discretion of the trial court, and in reviewing a challenge to the
        admissibility of evidence, we will only reverse a ruling by the trial
        court upon a showing that it abused its discretion or committed
        an error of law. Thus our standard of review is very narrow. To
        constitute reversible error, an evidentiary ruling must not only be
        erroneous, but also harmful or prejudicial to the complaining
        party.

Commonwealth v. Lopez,             57 A.3d 74, 81 (Pa. Super. 2012) (quotation

marks and citation omitted).

        "Physical evidence may be properly admitted despite gaps in testimony

regarding custody." Commonwealth v. Witmayer, 144 A.3d 939, 950 (Pa.

Super. 2016) (citation omitted). Objections to the chain of custody are

properly directed to the weight of the evidence, not its admissibility. See id.

Even where a court rules evidence is admissible, the party opposing the

admission may still offer other evidence relevant to its weight or credibility.

See Pa.R.E. 104(e).

        Demonstrative evidence, like the videotape here, "is tendered for the

purpose of rendering other evidence more comprehensible to the trier of fact."

Commonwealth v. McKellick, 24 A.3d 982, 986                         (Pa.   Super. 2011)



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(quotation marks and citation omitted). A party offering such evidence must

first authenticate it. See Pa.R.E. 901(a). "[A]uthentication generally entails            a


relatively low burden of proof[.]" Commonwealth v. Murray, 174 A.3d 1147,

1157 (Pa. Super. 2017) (citations omitted). The authentication requirement

"is satisfied by evidence sufficient to support           a    finding that the matter in

question    is   what its proponent claims." Pa.R.E. 901(a).

        Demonstrative evidence may be permissibly entered into evidence, so

long as its proponent establishes that the "evidence fairly and accurately

represents that which it purports to depict." McKellick, 24 A.3d at 987

(citation omitted). Where         a   party wishes to authenticate video evidence, "[i]t

is   not necessary that the maker of the videotape testify to the tape's accuracy;

any witness familiar with the subject matter can testify that the tape was an

accurate         and   fair   depiction    of   the   events    sought    to   be   shown."

Commonwealth v. Impellizzeri, 661 A.2d 422, 428                          (Pa. Super. 1995)

(emphasis added; citations omitted).

        Here, the Commonwealth moved to admit security footage of the

parking lot at the time Appellant allegedly damaged Marshall's car. See N.T.

Trial, 7/30/14, at 21. Appellant objected on the grounds that the maker of the

video was not present in the courtroom to authenticate it. See id., at 23. In

response, the Commonwealth elicited testimony from Marshall that she was

familiar with the area pictured in the video. See id., at 22. Marshall stated

that the camera displayed the side of Tustin's apartment complex, the parking


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lot for residents, and the road abutting the building. See id., at 23. Marshall

also attested that she could see her car in the video, parked parallel to Tustin's

car, in the same spot where it was parked on the night of November 23, 2012.

See id. She affirmed the area in the video looked just as it did on that night.

See id. Based on the foregoing, the trial court overruled Appellant's objection

and deemed the evidence admissible. See               id., at 24.
        Despite Appellant's objection, the Commonwealth was not required to

present testimony from the manager of the apartment complex whose

cameras recorded the video. Rather, the Commonwealth's obligation was to

ensure   a   witness familiar with the subject matter         -   Marshall,   a   frequent visitor

to the apartment building         - testified that    the video was       a   fair and accurate

depiction of events. To the extent Appellant wished to discredit Marshall as an

interested party, that argument relates to the weight of the evidence and not

its admissibility. We conclude the trial court did not abuse its discretion in

admitting the videotape.

        Appellant's next challenge      is   to the sufficiency of the evidence. Rather

than objecting to proof of    a   particular element of the offense, Appellant argues

her sufficiency claim in tandem with           a   weight of the evidence claim, despite

acknowledging different standards of review for each. We note that                              a


"challenge to the weight of the evidence             is   distinct from   a   challenge to the

sufficiency     of   the   evidence     in    that the former concedes that the

Commonwealth has produced sufficient evidence of each element of the crime,


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but questions which evidence is to be believed." Commonwealth v. Richard,

150 A.3d 504, 516 (Pa. Super. 2016) (internal quotation marks and citation

omitted).

        Insofar as we are able to distinguish between Appellant's sufficiency and

weight arguments, we will address these. In her sufficiency challenge,

Appellant contests the trial court's finding that she was the perpetrator of the

damage to Marshall's car. In Appellant's view, Marshall's claim that she could

identify Appellant by the sound of her voice was unsupported by the evidence.

We disagree.

        Our standard of review for   a   challenge to the sufficiency of the evidence

is   to determine whether, when viewed in       a   light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crimes charged

is   established beyond   a   reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003). "The Commonwealth may sustain its burden

of proving every element of the crime beyond            a   reasonable doubt by means

of wholly circumstantial evidence." Commonwealth v. Bruce, 916 A.2d 657,

661 (Pa. Super. 2007) (citation omitted)

        "The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence."        Id. (citation omitted). Any doubt
raised as to the accused's guilt is to be resolved by the fact -finder. See id.

"As an appellate court, we do not assess credibility nor do we assign weight


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to any of the testimony of record."        Commonwealth v. Kinney, 863 A.2d
581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not disturb

the verdict "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."

Bruce, 916 A.2d at 661 (citation omitted).

        "A person is guilty of criminal mischief if [she] intentionally damages

real or personal property of another[.]" 18 Pa.C.S.A.    §   3304(a)(5). This Court

has previously held that a witness may testify to a person's identity based on

her voice alone. See Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa.

Super. 2008).

        At trial, the Commonwealth presented evidence from Celeste Marshall,

the victim. Marshall stated she had several previous run-ins with Appellant,

including an incident where Appellant allegedly struck Marshall. See N.T. Trial,

7/30/14, at 28. Marshall asserted Appellant had also sent her previous

harassing messages, warning her to stay away from Appellant's ex -boyfriend,

Frank Tustin. See id., at 27. Marshall claimed Appellant had also threatened

to damage Marshall's vehicle in the messages. See id.

        Though Marshall could not recall the exact time, she stated that on the

evening of November 23, 2012, she saw Appellant's dark -colored minivan pull

into the parking lot outside of Tustin's apartment complex, where Marshall

had been spending time with Tustin. See          id., at 30. Marshall recognized




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Appellant's vehicle after having seen Appellant driving it around the parking

lot on several previous occasions. See id., at 14, 31.

        Marshall indicated that Appellant came to Tustin's apartment door and

began shouting and banging on the door. See       id., at 12. Marshall was familiar
with Appellant's voice from their previous altercations. See id., at 28. Marshall

heard Appellant threaten to flatten Tustin's car tires. See id., at 12.

        Tustin warned Appellant not to touch his car, as the apartment building

had surveillance cameras in place. See         id. After five or ten minutes of

shouting, Appellant left. See id. Tustin and Marshall then went outside to

check Tustin's car for damage, but did not examine Marshall's car. See id., at

12, 13. Marshall left Tustin's apartment later that evening, but did not inspect

her car for damage at that time either. See id., at 12.

        Marshall testified that one or two days later, she noticed the passenger

side of her vehicle bore     a    large, jagged scrape. See id., at 14. Marshall

believed Appellant was responsible for the damage, and called Tustin to tell

him about the scratch. See id.

        Tustin   and   Marshall   then   contacted Tustin's   apartment building

manager,     who   checked    the security tapes taken        from the building's

surveillance cameras. See id., at 16, 17. The Commonwealth introduced            a


copy of the surveillance tape into evidence. See id., at 21. Marshall confirmed

the video showed her vehicle, parked in the spot she had used on the night of

November 23. See id., at 23. Marshall identified Appellant as the woman in


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the video scratching her car. See id., at 25, 28. Marshall then explained one

of the Commonwealth's exhibits was       a   receipt from the repair estimate she

submitted to her car insurance agent. See id., at 19.

        The Commonwealth also presented testimony from Police Sergeant

Anthony Popeck, who filed       a   report of the incident. Popeck affirmed he

observed damage on Marshall's vehicle, in the form of        a   "scratch mark all of

the way down the passenger's side of her vehicle."       Id., at   35. He also stated

he reviewed the security tapes from Tustin's      apartment complex. See id., at

37. Popeck recounted    a   telephone conversation he had with Appellant in the

course of his investigation. See id., at 36. Appellant admitted to having prior

problems with Marshall, and stated she "didn't like [] Marshall messing around

with her man[,]" Tustin. Id. However, Appellant did not admit to having

damaged Marshall's vehicle. See id., at 41.

        In her defense, Appellant presented testimony from her stepfather,

Joseph Smith, who stated he had been doing repairs on Appellant's vehicle in

his shop around the time of the incident. See           id., at 45. Smith claimed
Appellant's van had been towed to his shop on November 16, 2012, before

the incident, but the order he wrote for repairs to the vehicle was dated

November 29, 2012. See id. Smith also admitted that he believed Appellant

had a second vehicle at the time. See     id., at 49.
        Appellant testified she had been home with her children at the time of

the incident. See id., at 55. She stated that while she was familiar with


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Marshall, she had not seen Marshall that day or damaged her vehicle. See id.

Appellant's husband, Ryan Wingertsahn, also testified that Appellant was

home all evening. See id., at 77. Finally, Appellant's former neighbor testified

she had seen Appellant between 8:20 and 8:30 p.m. that evening. See                 id.,
at 88-89. However, the neighbor stated she had no idea of Appellant's

whereabouts before or after that sighting. See id., at 91.

        Viewing   the above evidence in the light most favorable to the

Commonwealth as verdict -winner, we agree the Commonwealth presented

sufficient evidence to sustain Appellant's conviction for criminal mischief.

While Appellant's counsel elicited       a   statement on cross-examination that

Marshall did not have "a relationship" with Appellant, the evidence clearly

shows Marshall was familiar with Appellant and could accurately identify her.

Id., at 29. Appellant does not contest any other elements of the offense - that
Marshall's personal     property was damaged, or that the damage was

intentional. Thus, we find she   is   due no relief on her sufficiency challenge.

        We turn to Appellant's claim that her conviction is against the weight of

the evidence.

        An appellant wishing to challenge the weight of the evidence must

properly preserve his claim for review. Such      a   claim must be preserved orally

prior to sentencing, by    a   written motion before sentencing, or       in a post -

sentence motion. See Pa.R.Crim.P. 607(A).




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        We do not review challenges to the weight of the evidence de novo on

appeal. See Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).

"Appellate review of    a   weight claim   is a   review of the exercise of discretion,

not of the underlying question of whether the verdict is against the weight of

the evidence." Commonwealth v. Chine, 40 A.3d 1239, 1243 (Pa. Super.

2012) (citation omitted).

        In order to grant   a   new trial on the grounds that the verdict is against

the weight of the evidence, "the evidence must be so tenuous, vague and

uncertain that the verdict shocks the conscience of the court."          Id.,   at 1243-

1244 (internal quotation marks and citations omitted). A verdict shocks the

judicial conscience when "the figure of Justice totters on her pedestal," or

when "the jury's verdict, at the time of its rendition, causes the trial judge to

lose his breath, temporarily, and causes him to almost fall from the bench[.]"

Commonwealth v. Davidson, 860 A.2d 575, 581                        (Pa. Super.    2004)

(citations omitted). We note, "[o]ne of the least assailable reasons for granting

or denying   a   new trial is the lower court's conviction that the verdict was or

was not against the weight of the evidence."               Id.,   at 581-582 (citation

omitted).

        Appellant preserved her weight claim for our review in her post -sentence

motion. However, as noted above, Appellant's weight argument is carelessly

commingled with her sufficiency claim. See Appellant's Brief, at 15.

Appellant's weight claim reiterates her belief that the surveillance video should
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have     been    accorded       no   weight   because    of   its   allegedly   improper

authentication. As we have already disposed of this authentication claim

above, we will not consider additional authentication claims in the guise of           a


challenge to the weight of the evidence.

        Appellant also asserts the "credible testimony" from Joseph Smith that

Appellant's van was in his shop at the time of the incident should have

outweighed the surveillance video. Appellant's Brief, at 14. Rather than

challenge   a   distinct abuse of the trial court's discretion, Appellant seeks to

have this Court instead reweigh two pieces of evidence presented at trial and

decide in her favor. This we decline to do.

        Here, the trial court itself examined the surveillance video, and

determined it showed        a   female "similar in stature to [Appellant] intentionally

doing damage to [Marshall's] car." Trial Court Opinion, filed 8/24/18, at 7.

The trial court also found convincing the footage showing the woman entering

a   minivan, which Marshall had identified as belonging to Appellant. See id.,

at 10. The court then listened to testimony from Appellant's stepfather, Joseph

Smith, that Appellant's minivan was in his shop that week, and found that

testimony incredible. See id., at 11.

        We do not find the foregoing evidence to be "so tenuous, vague and

uncertain" that it shocks the conscience of this Court. Chine, 40 A.3d at 1243-

1244 (citation omitted). Moreover, Appellant presents               a   false comparison

between these two pieces of evidence. In addition to the surveillance video,


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the trial court heard and credited extensive testimony from Marshall,

regarding    her rocky relationship with Appellant. And the court noted

Appellant's threats to Tustin and Marshall to inflict car damage on the night of

the incident. Thus, we cannot conclude the trial court committed an abuse of

discretion in denying Appellant's post -sentence motion.

        Finally, we evaluate Appellant's claim that the court erred in denying

her request for discharge due to the delay in sentencing.

        Pennsylvania Rule of Criminal Procedure 704 provides that "sentence in

a    court case shall ordinarily be imposed within 90 days of conviction[.]"

Pa.R.Crim.P. 704. A court's failure to comply with Rule 704 by holding               a


sentencing    hearing within    ninety days does not automatically require

discharge. See Commonwealth v. Null, 186 A.3d 424, 433 (Pa. Super.

2018). "Discharge is appropriate only when         a   delay of more than ninety days

prejudices the defendant."    Id. (citation omitted).
        This Court does not "look at the sentencing delay in             a   vacuum."

Commonwealth v. McLean, 869 A.2d 537, 540                   (Pa. Super. 2005). When

determining whether discharge       is   appropriate, we must consider: 1) the

length of the delay; 2) the reason for the delay; 3) the appellant's timely or

untimely assertion of her rights; and 4) any prejudice to the appellant's

interests    protected   by   speedy     trial    and    due   process   rights.   See

Commonwealth v. Diaz,          51 A.3d 884, 889 (Pa. Super. 2012). "The court

should examine the totality of the circumstances, as no one factor is


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necessary, dispositive, or of sufficient importance to prove             a   violation." Id.,

at 887. (citation omitted). This Court has previously found that even                   a   delay

of   over      two   years   does   not     necessarily      require     discharge.          See

Commonwealth v. Brockway, 633 A.2d 188,                        191     (Pa. Super. 1993)

(holding defendant's failure to be sentenced for over two years after conviction

does not demonstrate prejudice requiring discharge).

      Here, Appellant requested that         a PSI   report be provided to the court

before her sentencing. The court acceded to her request, and ordered the

probation office to prepare the report. However, the probation office never

received the order. After realizing two years later Appellant's sentence had

not yet been imposed, the court issued         a   second order requesting         a PSI     and

scheduling sentencing proceedings.         It was only then that Appellant asserted
her right to be sentenced within ninety days under Rule 704 by filing               a   motion

for discharge, which the court denied. The court then imposed                 a   sentence of

restitution.

      The delay in Appellant's sentencing was lengthy            -   over two years after

the date of her conviction. However, the delay began due to Appellant's

request that the court order a PSI, and continued due to         a   clerical error. During

the pendency of sentencing, Appellant failed to invoke her right to sentencing

until the court identified the error and issued        a   second order. This failure to

assert her rights militates against   a   finding that the delay in sentencing caused

Appellant any prejudice. See id. at 190-191. Indeed, during the hearing on


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her motion for discharge, Appellant failed to demonstrate any prejudice

resulting from the failure to timely sentence her. See N.T. Hearing, 5/31/17,

at 18-19. Thus, based on Appellant's failure to timely assert her rights or prove

any resulting prejudice to her rights from the delay, we decline to grant relief

on this issue. Therefore, we affirm the   judgment of sentence.

        Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn,
Prothonotary



Date: 8/13/2019




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