J. A18010/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
JAMES O. PRESGRAVES, III,               :         No. 1832 MDA 2014
                                        :
                       Appellant        :


          Appeal from the Judgment of Sentence, June 18, 2014,
             in the Court of Common Pleas of Franklin County
            Criminal Division at No. CP-28-CR-0000808-2012


BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:             FILED JANUARY 22, 2016

      James O. Presgraves, III, appeals from the judgment of sentence of

June 18, 2014, following his conviction of one count each of driving under

the influence (“DUI”) -- high rate of alcohol, DUI -- general impairment, and

recklessly endangering another person (“REAP”).     After careful review, we

affirm.

      The facts of this matter, as gleaned from the trial transcripts, may be

summarized as follows:

      Officer Matthew Lynch testified that in the early morning hours of

January 21, 2012, at approximately 2:00 a.m., he was on routine patrol

when he came upon a single vehicle accident near the intersection of Wayne

Avenue and Second Street in Chambersburg. (Notes of testimony, 4/8/14 at

7.) Conditions were poor due to heavy snowfall. (Id. at 8.) Officer Lynch
J. A18010/15


was directed by a group of bystanders to a Jeep Grand Cherokee which had

apparently crashed into a telephone pole.         (Id. at 13.)      Officer Lynch

observed a female seated in the back seat, passenger side, who was in need

of medical assistance.    (Id. at 14.)    She was moaning and her face was

covered in blood.    (Id.)      Officer Lynch tried talking to her but she was

nonresponsive. (Id. at 15.) Officer Lynch tried to keep her stationary until

EMS arrived. (Id.)

      Subsequently, Corporal Darren Helsel arrived on the scene with

appellant.    (Id. at 18.)   Appellant indicated that the woman inside the

vehicle was his wife, Stacey.          (Id. at 19.)    When appellant exited

Corporal Helsel’s vehicle, he had a significant amount of blood on his face

and an injury to the upper-right portion of his head. (Id. at 20.) According

to appellant, he and Stacey had met two people that night at a bar, a friend

of hers and an unknown male individual. (Id. at 20-21.) They decided to

leave the bar to go to the friend’s house. (Id.) Appellant stated that the

unknown male individual was driving the Jeep when it crashed. (Id. at 21.)

Appellant did not know their names and had never met them before. (Id.)

When Officer Lynch asked appellant why he left the accident scene, he

claimed that he was chasing after the unknown male driver. (Id.)

      After   appellant   and    Stacey   were   transported   to   the   hospital,

Officer Lynch noticed an impact point on the inside of the windshield

containing blood and hair. (Id. at 26-27; Commonwealth’s Exhibit 12.) The



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hair stuck in the glass matched appellant’s hair color. (Id. at 27-28.) Later,

at the hospital, Officer Lynch questioned appellant further about the details

of the accident. At that time, appellant stated that they were at the Relax

Lounge where they met up with Stacey’s friend and her boyfriend. (Id. at

30.) Appellant reiterated that he had never met these people before. (Id.)

After they left the bar, the unknown male was driving, Stacey was in the

front passenger seat, appellant was seated behind Stacey in the right rear

passenger seat, and the unknown male’s girlfriend was seated in the left

rear passenger seat. (Id.) According to appellant, there was a road rage

incident with another vehicle, which caused the driver to lose control and

strike the telephone pole. (Id. at 30-31.)

      While he was talking, Officer Lynch noticed that appellant was giving

off a strong odor of alcohol.      (Id. at 32.)   When Officer Lynch asked

appellant how much he had to drink that night, appellant stated that he

consumed four or five beers. (Id.) Appellant stated that he did not know

how he hurt his head; however, Officer Lynch observed that the hair

imbedded in the glass of the front windshield was the same color and length

as appellant’s. (Id. at 32, 36.)

      Officer Lynch thought it was strange that no one else was found in the

vicinity of the crash other than appellant. (Id. at 36-37.) Officer Lynch also

found it odd that appellant would let his wife sit up front with a strange man,

while he sat in the back with the man’s girlfriend. (Id. at 37.) Officer Lynch



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advised appellant that he believed he was the driver of the vehicle, and was

intoxicated, and requested that he submit to chemical testing. (Id. at 37-

38.) Appellant agreed, and they obtained a blood sample as well as a hair

sample and a Buccal swab from the inside of appellant’s cheek for DNA

analysis.    (Id. at 38, 57.)     Appellant’s blood alcohol concentration was

0.127 percent. (Id. at 39.)

        Corporal Helsel testified that he was on routine patrol at 2:00 a.m. on

January 21, 2012, when he received a dispatch regarding a traffic accident

at the intersection of Catherine and Second Streets.      (Notes of testimony,

4/7/14 at 125.) Corporal Helsel received information over police radio that

witnesses saw an occupant of the vehicle leave the accident scene, traveling

east on Catherine Street. (Id. at 126.) Corporal Helsel proceeded to the

area and observed an individual in a dark hoodie.           (Id. at 127-128.)

Corporal Helsel did not see anyone else in the area at that time.       (Id. at

128.) Corporal Helsel parked his patrol car and walked up to the individual.

(Id.)    He observed blood on the right side of his face, as well as a small

laceration on his forehead. (Id.) Corporal Helsel identified this individual as

appellant.    (Id. at 129-130.)    Corporal Helsel asked appellant if he was

okay; appellant gave no response.       (Id. at 130.)   At that point, Corporal

Helsel transported appellant back to the accident scene. (Id.)

        Officer Matthew Bietsch testified that when he arrived on scene,

Officer Lynch was already present. (Id. at 73.) Officer Lynch informed him



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that there appeared to be someone missing.        (Id. at 74.)      Officer Bietsch

observed footprints in the snow, leading away from the driver’s side door of

the Jeep. (Id. at 75.) Officer Bietsch saw only one set of footprints. (Id.)

Officer Bietsch did not see any other footprints leading away from the

vehicle.    (Id. at 78.)   Officer Bietsch testified that conditions were snowy

and there was a fresh blanket of snow in the area.          (Id.)   Officer Bietsch

followed the footprints east on Catherine Street and made contact with

appellant and Corporal Helsel. (Id. at 76-79.) Appellant appeared to have

an injury to the right side of his forehead. (Id. at 80.)

      Thaddeus Ballard (“Ballard”) testified that in the early morning hours

of January 21, 2012, he was going home from the Relax Lounge on Orchard

Drive in Chambersburg. (Notes of testimony, 4/7/14 at 3-4.) Ballard was

accompanied by two of his cousins, and his brother.          (Id. at 4.)   Ballard

could not remember who was driving. (Id. at 4-5.) Ballard came upon an

accident at the corner of Second and Catherine Streets. (Id. at 5.) Ballard

saw a Jeep that had struck a telephone pole. (Id. at 5-6.) They stopped

and put their hazard lights on. (Id. at 8.) Ballard testified that a woman

who appeared to be injured was inside the vehicle, on the passenger side.

(Id.) The woman was moaning and bleeding from her head. (Id. at 8-9.)

      While Ballard was looking inside the car, a man approached him. (Id.

at 9.) Ballard described the man as Caucasian with long hair and blood on

his face.   (Id. at 10-11.) Ballard could not identify the individual at trial.



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(Id. at 10.) Ballard told him that the female passenger looked like she was

in trouble and he needed to call the police. (Id. at 9.) The male individual

responded, “Don’t call the cops; don’t call the cops,” and instructed Ballard

“to say that a Mexican did it.” (Id.) Ballard called 911, at which point the

male individual ran away.      (Id. at 10-11.)     Ballard characterized his

demeanor as “very, very scared.” (Id. at 11.)

      On January 26, 2012, a few days after the accident, Officer Lynch

re-interviewed appellant. At this time, appellant’s version of events changed

significantly. Appellant stated that the vehicle was driven by an individual

with the alias “Bear,” who appellant knew from playing pool at Jim’s Tavern

in Greencastle.   (Notes of testimony, 4/8/14 at 68-69.)       There was no

mention of a fourth person in the vehicle. (Id. at 69.) In addition, appellant

now stated that at the moment of impact, he was leaning forward from the

back seat giving his wife a kiss, instead of seated directly behind his wife

next to the window on the rear passenger side. (Id. at 68.) Officer Lynch

found this to be significant, as he had mentioned to appellant previously that

there were hairs recovered from inside the front windshield.            (Id.)

Officer Lynch was unable to find anyone who went by the alias, “Bear.” (Id.

at 69-70.)

      Officer Lynch testified that on January 31, 2012, he went to the Relax

Lounge and Orchard’s Restaurant to review video surveillance footage from




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the night of the accident.   (Id. at 73.)1   Officer Lynch observed appellant

and Stacey seated at a table in the bar by themselves. (Id. at 75.)2 There

was no one else around them. (Id.) At some point, appellant and Stacey

got up and exited the bar.      (Id.)   Officer Lynch testified that although

several other people left around the same time, it did not appear that

appellant and Stacey were conversing with them or had any kind of

relationship with them. (Id. at 75-76.)

      Appellant and Stacey proceeded to the northeast corner of the parking

lot. (Id. at 77.)3 Their vehicle was just outside camera range. (Id. at 78.)

After approximately 30 seconds, appellant walked back into view, and

re-entered the bar using the same door. (Id. at 79-80.) Appellant was by

himself; Officer Lynch could not see Stacey at that time.        (Id. at 80.)

According to Officer Lynch, appellant was “kind of mingling around.” (Id.)

Appellant spoke briefly to an unidentified female but no one else.       (Id.)

After several minutes, appellant left the bar again, returning to the northeast

corner of the parking lot. (Id. at 80-81.) Appellant passed out of camera

range.   (Id. at 81.)   After several seconds, Officer Lynch saw light from


1
  The Relax Lounge and Orchard’s Restaurant are connected and owned by
the same proprietor. (Notes of testimony, 4/7/14 at 47-48.)
2
  As discussed below, the actual video recordings were unavailable to play
for the jury. Officer Lynch was permitted to testify to the contents of the
recordings, with an appropriate cautionary instruction.
3
  The premises has 16 cameras both inside and outside the building. (Notes
of testimony, 4/7/14 at 48.)


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headlamps and a car appeared, driving across the parking lot towards

Orchard Drive. (Id. at 81-82.) The vehicle appeared to be the same Jeep

Grand Cherokee which was involved in the accident a short time later. (Id.

at 82.) Officer Lynch was unable to see the occupants of the vehicle. (Id.)

Officer Lynch testified that when he exited the bar, appellant was wearing a

baseball cap. (Id. at 84.) Later, at the accident scene, Officer Lynch did not

see a baseball cap. (Id.)

      Timothy J. Gavel is a forensic scientist employed by the Pennsylvania

State Police.   (Id. at 156-157.)    Mr. Gavel testified that appellant’s DNA

matched the blood sample from the interior windshield of the Jeep. (Id. at

162-163.)   In addition, appellant’s DNA matched a blood sample collected

from the driver’s side door, lower interior rocker panel. (Id. at 164-165.)

      Appellant testified in his own defense. Appellant testified that he and

Stacey went to the Relax Lounge to see a Led Zeppelin cover band called

“Cashmere.”     (Notes of testimony, 4/9/14 at 32.)      Appellant had been

drinking and Stacey did not want to drive home in the snow. (Id. at 36-38.)

According to appellant, Bear agreed to drive them home.          (Id. at 39.)

Appellant took Bear’s baseball hat and put it on to ensure that Bear would

not leave them.    (Id. at 40.)     Later, in the car, appellant returned the

baseball hat to Bear. (Id. at 43-44.)

      Appellant testified that Stacey was in the front passenger seat and he

was in the back seat, in the middle, between the two front seats. (Id. at



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44.) Appellant stated that he was leaning forward to kiss Stacey when he

heard a loud noise and hit the windshield.        (Id. at 44-46.)     Appellant

testified that after the accident, Bear left the scene. (Id. at 47.) Appellant

chased after him, which is when he encountered Corporal Helsel. (Id. at 48-

50.) Stacey testified on appellant’s behalf and substantially corroborated his

account of the accident. (Notes of testimony, 4/8/14 at 187-202.)

      On April 9, 2014, following a jury trial, appellant was found guilty of

two counts of DUI and one count of REAP. Appellant was found not guilty of

aggravated assault by vehicle, aggravated assault by vehicle while DUI, and

accident involving death or personal injury. (Notes of testimony, 4/9/14 at

186-189.) On June 18, 2014, appellant was sentenced to 12 to 60 months’

imprisonment followed by 24 months of probation.          On June 30, 2014,

appellant filed a timely post-sentence motion,4 including a challenge to the

weight of the evidence, which was denied on October 28, 2014. Appellant

complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has

filed an opinion.

      Appellant has raised the following issues for this court’s review:

            A.      ISSUE 1:
                    WHETHER THE TRIAL COURT ABUSED ITS
                    DISCRETION IN PERMITTING OFFICER LYNCH
                    TO NARRATE THE CONTENTS OF THE RELAX
                    LOUNGE VIDEO RECORDING IN LIEU OF
                    PRODUCING THE ACTUAL RECORDINGS AND

4
  The actual tenth day following sentencing was Saturday, June 28, 2014;
therefore, appellant had until the following Monday, June 30, 2014, to file
his post-sentence motion. 1 Pa.C.S.A. § 1908.


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                    WHETHER FROM A PRAGMATIC RELEVANCE
                    PERSPECTIVE   SUCH    TESTIMONY  [SIC]
                    PROBATIVE    VALUE   OUTWEIGHED   THE
                    DANGERS OF UNFAIR PREJUDICE AND
                    POTENTIAL TO MISLEAD THE JURY[?]

              B.    ISSUE 2: DID THE TRIAL COURT’S DECISION
                    TO DENY APPELLANT’S MOTION FOR A NEW
                    TRIAL MISAPPLY THE LAW TO THE EXTENT IT
                    FAILED   TO    EXERCISE  ITS    JUDICIAL
                    “JUDGMENT” IN REACHING A DISPASSIONATE
                    CONCLUSION WITHIN THE FRAMEWORK OF
                    THE LAW[?]

Appellant’s brief at 8.5

      In his first issue on appeal, appellant argues that the trial court erred

in granting the Commonwealth’s pre-trial motion in limine to permit

Officer Lynch to testify regarding the contents of the videotape recordings

from the Relax Lounge. Appellant argues that the Commonwealth acted in

bad   faith   by   failing   to   preserve   the   original   recordings   and   that

Officer Lynch’s testimony was barred by the best evidence rule. In addition,

appellant contends that any probative value Officer Lynch’s testimony had

was outweighed by the danger of unfair prejudice, confusion of the issues,

and misleading the jury. We disagree.

              Our standard of review regarding the admissibility of
              evidence is an abuse of discretion.            “[T]he
              admissibility of evidence is a matter addressed to the
              sound discretion of the trial court and . . . an
              appellate court may only reverse upon a showing
              that the trial court abused its discretion.”

5
 Remaining issues raised in appellant’s Rule 1925(b) statement, including a
challenge to the discretionary aspects of his sentence, have been abandoned
on appeal. (Id. n.2.)


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           Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d
           958, 967 (2001) (citations omitted). “An abuse of
           discretion is not a mere error in judgment but,
           rather, involves bias, ill will, partiality, prejudice,
           manifest unreasonableness, or misapplication of
           law.” Commonwealth v. Hoover, 16 A.3d 1148,
           1150 (Pa.Super.2011).

Commonwealth v. Collins, 70 A.3d 1245, 1251-1252 (Pa.Super. 2013),

appeal denied, 80 A.3d 774 (Pa. 2013).

           The “Best Evidence Rule,” as articulated by the
           common law, very literally only pertained to writings
           or other documentary evidence. As our Court has
           described the common-law rule in a prior case:

                 The “best evidence” rule limits the
                 method of proving the terms of a writing
                 to the presentation of the original
                 writing, where the terms of the
                 instrument are material to the issue at
                 hand, unless the original is shown to be
                 unavailable through no fault of the
                 proponent.    McCormick, Evidence 560
                 (2nd ed. 1972). The Pennsylvania courts
                 use the “best evidence” rule when the
                 contents of documentary evidence are at
                 issue. Ledford v. Pittsburgh & Lake
                 Erie R.R. Co., 236 Pa.Super. 65, 345
                 A.2d 218 (1975). The best evidence rule
                 is controlling only if the terms of a
                 writing must be proved to make a case
                 or provide a defense.         McCormick,
                 supra.

Commonwealth v. Fisher, 764 A.2d 82, 87-88 (Pa.Super. 2000), appeal

denied, 782 A.2d 542 (Pa. 2001), quoting Commonwealth v. Harris, 719

A.2d 1049, 1051 (Pa.Super. 1998).

           However, the Pennsylvania Rules of Evidence have
           expanded the scope of the common-law rule by


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            applying it to other forms of evidence such as
            recordings and photographs. The common-law rule
            has been incorporated into and amplified by
            Pennsylvania Rule of Evidence 1002 which provides:

                   [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.]

Id., quoting Pa.R.E. 1002 (rescinded and replaced Jan. 17, 2013, effective

March 18, 2013).

      However, Pa.R.E. 1004 provides, inter alia, that “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[.]” See Commonwealth v. Dent,

837 A.2d 571, 589 (Pa.Super. 2003), appeal denied, 863 A.2d 1143 (Pa.

2004) (“If the originals are not available at trial in criminal cases, through no

fault of the Commonwealth, secondary evidence is permissible.”) (citations

omitted).

            At common law, the “best evidence” rule limited
            proof of the terms of a writing to production of the
            original document, if the terms of the instrument
            were material to the issue under review, unless the
            original was shown to be unavailable through no
            fault of the proponent. Traditionally, Pennsylvania
            courts applied the “best evidence” rule when the
            content of documentary evidence was at issue; that
            is, when the terms of the writing had to be proved to
            make a case or provide a defense.




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Id. at 588-589, citing Fisher, supra; Binder on Pennsylvania Evidence

§ 10.02 at 613.

        The trial court held an evidentiary hearing on the Commonwealth’s

motion on April 1, 2013.    Officer Lynch testified that after reviewing the

surveillance tape, he asked the owner, Michael Kalathas (“Kalathas”), for a

copy.    (Notes of testimony, 4/1/13 at 20.)   Kalathas stated that he could

save it on his computer; however, he did not know how to copy or “burn” it

onto a compact disc (“CD”). (Id.) Kalathas said that he would have to call

the security company, TelePlus, and have them burn a copy onto a CD. (Id.

at 20-21.) Officer Lynch testified that he was unfamiliar with the security

system and would have been unable to burn a copy himself. (Id. at 21.)

Officer Lynch asked Kalathas to save a copy of the video, and Kalathas

assured him that it would be stored indefinitely.      (Id.)   Officer Lynch

testified, “I asked him if there was any kind of time frame of when it would

be deleted and he told me that they were stored indefinitely until he would

go and delete it from that point.” (Id.)

        Approximately two months later, Officer Lynch was advised by the

district attorney’s office that they would need to preserve the video onto a

CD for trial. (Id. at 22.) Officer Lynch immediately contacted Kalathas and

asked him to have the security company copy the video onto a CD. (Id.) At

that point, Officer Lynch was informed by Kalathas that the hard drive had

been replaced and that he would need to contact the security company



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directly.   (Id. at 23.)   Officer Lynch called the security company and was

told they would have to look at the hard drive to determine whether the

video was still available. (Id.) Officer Lynch asked the security company to

contact Kalathas and get back to him if the footage was able to be saved,

but no one ever got back to him. (Id. at 23-24.)

      Kalathas testified that after viewing the video, Officer Lynch asked him

to save the footage from two cameras, one showing the parking lot and one

showing the inside of the bar area. (Id. at 6.) Kalathas testified that he

saved the relevant portions onto a recording device connected to the camera

system. (Id.) However, he was not able to burn a copy onto a CD. (Id.)

According to Kalathas, approximately two months later, they were having

trouble with the security camera system and TelePlus came in and revamped

it. (Id. at 7.) As a result, Kalathas lost the video footage that Officer Lynch

asked him to save, as well as some other recordings.          (Id.)    Kalathas

testified that the video footage was not able to be recovered. (Id.)

      Clearly, the video recordings were unavailable through no fault of the

Commonwealth.        Officer Lynch watched Kalathas save them and was

assured that they would remain on the recording device. Immediately after

being informed by the district attorney’s office that they needed a CD of the

video, Officer Lynch contacted Kalathas. Unfortunately, in the interim, the

hard drive had been removed and the video was irretrievably lost.          See

Dent, 837 A.2d at 590 (surveillance videotape at issue was unavailable at



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trial where the computer system failed soon after the incident and the hard

drive had to be completely replaced).

     There is simply no evidence of bad faith misconduct on the

Commonwealth’s part.        Appellant contends that Officer Lynch did not

immediately request Kalathas to contact TelePlus and have the video burned

onto a CD because of concerns about cost. Officer Lynch did testify that he

assumed the security company would charge Kalathas for burning the videos

onto a CD.      (Notes of testimony, 4/1/13 at 22.)   However, Officer Lynch

explained that at that point, he was not even sure the video footage would

be necessary and he did not want Kalathas to incur unnecessary cost. (Id.)

Officer Lynch testified that cost was not the only reason he did not ask

Kalathas to have a CD made at the outset.        (Id. at 31.)   Officer Lynch

explained,

             It was my belief that there’s going to be a cost
             incurred for calling up a security company to come
             there to download that video. Based upon what
             Mr. Kalathas said was that the video would be saved
             indefinitely and that it was something if it would be
             needed at a later time we would be able to attain
             that. And, to be quite honest, very few of our cases
             go to this point, that actually go to trial. So if we
             were pursuing every single case with every piece of
             evidence, you know, the people who are maintaining
             these security systems, then when we do have a
             stabbing or some other related nature there, we
             sometimes will meet resistance.

Id. at 29-30.




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       The bottom line is that Officer Lynch had no reason to believe the

video recordings would not be saved indefinitely, in case he needed them in

the future. He had no reason to anticipate any problems with the security

system.      What   occurred   with   the      hard   drive   was   an   unforeseen

circumstance.   The trial court accepted the testimony of Kalathas that the

security company inadvertently deleted the relevant video footage along

with several other recordings during its overhaul of the security system.

(Order, 4/3/14 at 2; docket #28.)              The trial court found that while

Officer Lynch could have been more diligent in securing the recordings, his

actions did not constitute bad faith. (Id.)

       Appellant also argues that the evidence had little probative value, as

Officer Lynch admitted he could not see inside the Jeep and did not know

how many people were inside when it pulled out of the bar parking lot.

(Appellant’s brief at 30.) Officer Lynch could not see inside the windows of

the Jeep and did not know who was driving. (Id.) In addition, Officer Lynch

was unfamiliar with Bear and so there was no reason to think he would be

able to identify him, even if he were present in the bar that night. (Id. at

31.)    According to appellant, Officer Lynch’s testimony regarding the

contents of the video merely served to distract the jury from its critical

fact-finding determination of whether appellant was driving.             (Id.)   We

disagree.

            Otherwise relevant evidence may be excluded if its
            probative value is outweighed by its potential for


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           prejudice. “The probative value of the evidence
           might be outweighed by the danger of unfair
           prejudice, confusion of the issues, misleading the
           jury, undue delay, pointlessness of presentation, or
           unnecessary presentation of cumulative evidence.”
           Commonwealth v. Page, 965 A.2d 1212, 1220
           (Pa.Super. 2009) (citing Commonwealth v. Dillon,
           592 Pa. 351, 925 A.2d 131, 141 (2007) (citing
           Pa.R.E. 403)).     “The comment to Pa.R.E. 403
           instructs that: ‘“Unfair prejudice” means a tendency
           to suggest decision on an improper basis or to divert
           the jury’s attention away from its duty of weighing
           the evidence impartially.’”     Id. (quoting Pa.R.E.
           403). However, “[e]vidence will not be prohibited
           merely because it is harmful to the defendant.”
           Dillon, 925 A.2d at 141. “[E]xclusion is limited to
           evidence so prejudicial that it would inflame the jury
           to make a decision based upon something other than
           the legal propositions relevant to the case.”
           Commonwealth v. Owens, 929 A.2d 1187, 1191
           (Pa.Super. 2007) (citing Commonwealth v.
           Broaster, 863 A.2d 588, 592 (Pa.Super. 2004)).

Commonwealth v. Antidormi, 84 A.3d 736, 750 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014).

     Instantly, Officer Lynch’s testimony concerning the video surveillance

footage he viewed at Relax Lounge was relevant to prove appellant was the

driver of the Jeep the night of the accident.         As recounted above,

Officer Lynch saw appellant and Stacey seated at a table in the bar by

themselves. They were not speaking with anyone. When they left the bar,

although other people left around the same time, they did not appear to be

interacting with anyone.   Although the Jeep was out of camera range and




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Officer Lynch could not see how many people were in the Jeep when it left

the parking lot, the testimony was clearly relevant.6

      In addition, we agree with the trial court that the probative value of

the testimony was not outweighed by its potential for unfair prejudice,

confusion of the issues or misleading the jury.         (Order, 4/3/14 at 4.)

Officer Lynch admitted that he could not see inside the vehicle and did not

know how many people were inside. Officer Lynch could not see who was

driving the vehicle.   Officer Lynch noted that appellant was wearing a

baseball hat inside the bar, but none was found at the scene of the accident,

which actually supports appellant’s story about taking Bear’s baseball hat to

make sure he would drive them home.

      We also note that the trial court gave an appropriate cautionary

instruction to the jury.   (Notes of testimony, 4/8/14 at 71-72.)    The trial


6
   The trial court determined that evidence of the content of the video
recordings was admissible because it was not closely related to a controlling
issue in the case, and was merely collateral. (Order, 4/3/14 at 2-3.) See
Pa.R.E. 1004(d) (“An original is not required and other evidence of the
content of a writing, recording, or photograph is admissible if: (d) the
writing, recording, or photograph is not closely related to a controlling
issue.”). We respectfully disagree with this analysis. Clearly, the evidence
was being admitted to establish that appellant was driving the vehicle, which
is an essential element of the crimes charged. Appellant did not dispute that
he was drinking that night and was inside the vehicle when it crashed. The
only issue at trial was who was driving the vehicle. Therefore, the evidence
was not merely collateral. However, it is well established that this court may
affirm the trial court on any basis. See Commonwealth v. Harper, 611
A.2d 1211, 1213 n.1 (Pa.Super. 1992) (this court “may affirm the decision
of the trial court if there is any basis on the record to support the trial
court’s action. This is so even if we rely upon a different basis in our
decision to affirm[]”) (citations omitted).


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court did not err in granting the Commonwealth’s motion in limine and

allowing Officer Lynch to testify regarding the content of the surveillance

videos.

      Next, appellant challenges the weight of the evidence to support the

jury’s verdict. According to appellant, a finding that he was driving the Jeep

at the time of the accident amounts to little more than conjecture and

speculation. (Appellant’s brief at 33.) Appellant argues that there was no

direct evidence to prove he was driving the Jeep at the time of the accident.

(Id. at 34.)   Appellant points to Officer Lynch’s testimony regarding his

observations of the Relax Lounge video footage as corroborating his version

of events, i.e., reentering the bar to find Bear. (Id. at 35.) Appellant points

out that Ballard, who was drinking that evening, was unable to positively

identify appellant as the man he encountered at the scene.        (Id. at 37.)

Appellant argues that he and Stacey offered the only first-person,

eyewitness testimony of who was driving the vehicle that night. (Id. at 36.)

                  A weight of the evidence claim concedes
                  that the evidence is sufficient to sustain
                  the verdict, but seeks a new trial on the
                  ground that the evidence was so
                  one-sided or so weighted in favor of
                  acquittal that a guilty verdict shocks
                  one’s sense of justice.

            Commonwealth v. Lyons,              Pa.     , 79 A.3d
            1053, 1067 (2013).

                  The     Pennsylvania  Supreme     Court    has
            reiterated the proper standard of review of a weight
            claim as follows:


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J. A18010/15



               A motion for a new trial based on a claim
               that the verdict is against the weight of
               the evidence is addressed to the
               discretion of the trial court. A new trial
               should not be granted because of a mere
               conflict in the testimony or because the
               judge on the same facts would have
               arrived at a different conclusion. Rather,
               “the role of the trial judge is to
               determine that ‘notwithstanding all the
               facts, certain facts are so clearly of
               greater weight that to ignore them or to
               give them equal weight with all the facts
               is to deny justice.’” It has often been
               stated that “a new trial should be
               awarded when the jury’s verdict is so
               contrary to the evidence as to shock
               one’s sense of justice and the award of a
               new trial is imperative so that right may
               be given another opportunity to prevail.”

               An appellate court’s standard of review
               when presented with a weight of the
               evidence claim is distinct from the
               standard of review applied by the trial
               court:

                     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.
                     Because the trial judge has
                     had the opportunity to hear
                     and     see   the     evidence
                     presented, an appellate court
                     will    give    the    gravest
                     consideration to the findings
                     and reasons advanced by the
                     trial judge when reviewing a
                     trial court’s determination
                     that the verdict is against the


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J. A18010/15


                     weight of the evidence. One
                     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 and that a new trial
                     should be granted in the
                     interest of justice.

               This does not mean that the exercise of
               discretion by the trial court in granting or
               denying a motion for a new trial based
               on a challenge to the weight of the
               evidence is unfettered. In describing the
               limits of a trial court’s discretion, we
               have explained:

                     The term “discretion” imports
                     the exercise of judgment,
                     wisdom and skill so as to
                     reach      a      dispassionate
                     conclusion       within      the
                     framework of the law, and is
                     not exercised for the purpose
                     of giving effect to the will of
                     the judge. Discretion must
                     be     exercised      on     the
                     foundation of reason, as
                     opposed       to      prejudice,
                     personal motivations, caprice
                     or      arbitrary       actions.
                     Discretion is abused where
                     the       course        pursued
                     represents not merely an
                     error of judgment, but where
                     the judgment is manifestly
                     unreasonable or where the
                     law is not applied or where
                     the record shows that the
                     action is a result of partiality,
                     prejudice, bias or ill-will.



                                  - 21 -
J. A18010/15


            Commonwealth v. Clay,               Pa.      , 64 A.3d
            1049,  1054-1055        (2013)    (citations   omitted)
            (emphasis in original).

Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014),

appeal denied, 99 A.3d 925 (Pa. 2014).

      In denying appellant’s post-sentence weight of the evidence claim, the

trial court determined there was sufficient circumstantial evidence for the

jury to find that appellant was, in fact, the driver of the vehicle.         As

recounted in depth supra, the video footage from the Relax Lounge did not

show appellant and Stacey speaking with anyone at the bar. When Ballard

arrived on scene shortly after the crash, he encountered appellant, who told

him not to call the cops and to say a Mexican did it. As the trial court states,

while Ballard could not identify appellant at trial, the jury could fairly make

that inference. (Trial court opinion, 10/28/14 at 3.) Appellant fled from the

scene and was discovered by Corporal Helsel a short distance away, bleeding

from the head.    There were no other footprints in the freshly fallen snow

leading away from the Jeep. When he was brought back to the crash site,

appellant told Officer Lynch that there were four people in the car, himself,

Stacey and two others whom he had never met before.             Appellant also

related that he was seated directly behind Stacey, in the right rear

passenger seat. Later, after Officer Lynch told him that blood and hair was

found on the interior windshield, appellant changed his story and stated that

he was sitting in the middle of the back seat, giving his wife a kiss when the



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accident occurred and he was thrown into the windshield.          Also, appellant

stated for the first time that an individual named “Bear,” who police could

not locate, was actually driving the car.      Appellant’s DNA matched blood

recovered from inside the windshield and also from the driver’s side door.

      Clearly, the jury rejected as not credible appellant’s self-serving story

about someone named “Bear” driving the Jeep.            There was simply no

evidence, other than the testimony of appellant and his wife Stacey, to

support the theory that anyone else was in the vehicle. The jury’s verdict

hardly shocks the judicial conscience.       The trial court did not abuse its

discretion in denying appellant’s weight of the evidence claim.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/22/2016




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