J-S69035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY S. MANEVAL                         :
                                               :
                       Appellant               :   No. 1008 MDA 2018

       Appeal from the Judgment of Sentence Entered February 27, 2018
      In the Court of Common Pleas of Snyder County Criminal Division at
                        No(s): CP-55-CR-0000335-2016


BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                           FILED DECEMBER 07, 2018

        Anthony S. Maneval (Appellant) appeals from the judgment of sentence

imposed after the trial court convicted him of two counts of indecent assault.1

Appellant challenges the admission of a surveillance video and the weight of

the evidence presented at trial. We affirm.

        Appellant was charged with committing indecent assault at his place of

employment, in the “receiving” or stockroom area of a Bon-Ton department

store. N.T. Trial, 10/20/17, at 36. In addition to indecent assault, Appellant

was charged with possessing an instrument of crime (PIC) and harassment.2

The indecent assault counts included a misdemeanor of the first degree under


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1   18 Pa.C.S.A. § 3126(a)(1), (4).

2   18 Pa.C.S.A. §§ 907(a), 2709(a)(3).
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18 Pa.C.S.A. § 3126(a)(4), and a misdemeanor of the second degree under

18 Pa.C.S.A. § 3126(a)(1).

      The case proceeded to a bench trial on October 20, 2017.           Jenelle

Longacre, the human resources manager at Bon-Ton, testified that she

participated in installing a hidden surveillance camera near Appellant’s desk,

which was “hooked into” the store’s surveillance system. N.T., 10/20/17, at

6. On August 25, 2016, around 8:25 a.m., Ms. Longacre, along with David

Nuss, the store’s loss prevention officer, reviewed the surveillance video taken

earlier that morning. Id. at 34, 36, 38. Ms. Longacre described what she

observed on the video: shortly after Appellant arrived at work at 6:10 a.m.,

when no one else was present, he began masturbating. Id. at 9. He left the

room but returned with a pair of pink shorts and a sandwich, unwrapped the

sandwich, “continue[d] to masturbate, pick[ed] up the sandwich and [held] it

close to his body, put[ ] the sandwich down, finish[ed] . . . [and] rewrap[ped]

the sandwich, and carrie[d] on with his day.” Id. at 9-10. At approximately

7:00 a.m., another employee, Rebecca Parent, arrived, and she consumed the

sandwich. Id. at 10. Ms. Parent also testified at trial, stating that she did not

know what Appellant had done with the sandwich and would not have wanted

him to engage in such conduct. Id. at 16.

      Ms. Longacre further testified that when questioned about the incident,

Appellant stated, “[W]hat you saw I was doing is what I was doing. There’s

been problems at home.” N.T., 10/20/17, at 11. Ms. Longacre stated that


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the surveillance video was kept in the custody of Christopher Hoffman3 for five

days until “Christopher Hoffman and our investigation for the Bon-Ton” made

a copy and provided it to state police. Id. at 12, 38.

       State Trooper James Ballantyne testified that he reviewed the

surveillance video provided by Bon-Ton, which showed “an overhead bird’s

eye view” of the area near Appellant’s desk. N.T., 10/20/17, at 18-19. The

trooper’s description of the video corroborated Ms. Longacre’s testimony,

although Trooper Ballantyne added that “[i]t appeared [Appellant] place[d]

his penis directly onto the sandwich while masturbating.” Id. at 19. On cross-

examination, Trooper Ballantyne acknowledged that the view of Appellant’s

penis and the sandwich was “partially obscured by [Appellant’s] head.” Id. at

46. Trooper Ballantyne testified that after Appellant appeared to ejaculate,

“he re-secure[d] the sandwich with his hands and rewrap[ped] it up in tinfoil

. . . to make it look like it was not opened.” Id.

       Trooper Ballantyne also testified that five days after the incident,

Appellant went to the state police barracks and gave a videotaped statement.

N.T., 10/20/17, at 20, 42. According to the trooper, Appellant “admitted to

all the actions about the masturbation” and stated that he had “pictured Ms.

Parent in the shorts and that’s why he specifically selected those from the

young girl-teen section.” Id. 20-21. In his statement, however, Appellant


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3 Ms. Longacre did not explain, and the record does not specify, Mr. Hoffman’s
title or his connection to Bon-Ton. See N.T., 10/20/17, at 38.

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denied ejaculating on the sandwich. Id. at 21-22.

      Following the above testimony, the Commonwealth sought to play the

surveillance video. N.T., 10/20/17, at 23. Appellant objected. He argued

that there was no foundation for introducing the video because the person

who created it was not available to testify that: (1) the video system was

operating properly; and (2) the video was unedited and accurately depicted

what occurred. Id. at 23, 26. The trial court responded that Pa.R.E. 901

requires evidence to be authenticated, which may be accomplished by

producing evidence, including witness testimony, “sufficient to support a

finding that the item is what the proponent claims it is.” Id. at 24 (quoting

Pa.R.E. 901(a), (b)(1)). The court noted that in this case, no one (other than

Appellant) could testify to being present in the room that morning. Id. at 25.

The court referenced Ms. Longacre’s testimony that she helped install the

surveillance camera and viewed the surveillance video, although she did not

testify that the video “accurately depict[ed] the scene in the shipping room[.]”

Id. at 24-25.   The Commonwealth re-called Ms. Longacre and played the

surveillance video for the purpose of her identifying Appellant and confirming

that the video gave “a fair and accurate depiction of the loading area.” Id. at

26, 28-29. The court then overruled Appellant’s objection to the admission of

the video. Id. at 35. Ms. Longacre and Trooper Ballantyne testified that the

video played at trial was the same video — not edited or changed in any way

— that they initially viewed. Id. at 38, 39.


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       The Commonwealth also played the video of Appellant’s statement to

police. N.T., 10/20/17, at 40-41. When Trooper Ballantyne asked Appellant

“about Law and Order and black light and is it going to glow [sic],” Appellant

admitted “yeah, my hands would have been glowing when I touched that

sandwich.” See id. at 51.

       Following the conclusion of the Commonwealth’s evidence, Appellant

moved to dismiss all charges on the basis that the Commonwealth failed “to

introduce sufficient evidence.”        N.T., 10/20/17, at 49-50.   He argued that

there was no evidence of touching or indecent contact, or evidence

establishing “the mens rea element [of the victim] coming into contact with

seminal fluid.”     Id. at 50.4      The Commonwealth responded that it could

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4 Appellant was charged and convicted under the following subsections of the
indecent assault statute:

           (a) Offense defined.—A person is guilty of indecent assault
       if the person has indecent contact with the complainant, causes
       the complainant to have indecent contact with the person or
       intentionally causes the complainant to come into contact with
       seminal fluid, urine or feces for the purpose of arousing sexual
       desire in the person or the complainant and:

             (1) the person does so without the complainant’s consent;
          [or]

                                       *       *   *

             (4) the complainant is unconscious or the person knows that
          the complainant is unaware that the indecent contact is
          occurring[.]




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establish indecent assault by showing that a defendant intentionally caused

the complainant to come into contact with his seminal fluid for the purpose of

arousing sexual desire. Id. at 50-51. The Commonwealth argued that the

evidence established Appellant intended to ejaculate or put his bodily fluids

on the sandwich for his sexual gratification, and regardless of whether

Appellant’s penis touched the sandwich, Appellant admitted to Trooper

Ballantyne that his hands had seminal fluid on them when he handled the

sandwich. Id. at 51-52. The trial court granted Appellant’s motion to dismiss

the counts of PIC and harassment, but denied his motion to dismiss the two

counts of indecent assault. Id. at 53.

       Appellant declined to testify or present any evidence. The trial court

found him guilty of both counts of indecent assault. N.T., 10/20/17, at 65.

On February 27, 2018, the court sentenced Appellant to 90 days to 12 months

of imprisonment, followed by 4 years of probation. Appellant did not file a

post-sentence motion, but took a timely appeal. Appellant complied with the

court’s order to file a Pa.R.A.P. 1925(b) statement.

       Appellant presents two issues for our review:

       I. Did the Trial Court abuse its discretion by permitting the
       Commonwealth to play, taking narrative testimony regarding, and
       subsequently admitting into evidence video recordings that were
       not properly authenticated pursuant to Pa.R.Crim.P. 901 and over
       the continuing objection by Appellant?


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18 Pa.C.S.A. § 3126(a)(1), (4).


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      II. Did the trial court abuse its discretion in holding Appellant
      guilty of indecent assault when the verdict was not supported by
      the weight of the evidence before the Court at trial?

Appellant’s Brief at 4-6.

      In his first issue, Appellant argues that the trial court abused its

discretion in admitting the Bon-Ton surveillance video, as well as “narrative

testimony regarding” the video, because the video was not properly

authenticated pursuant to Pa.R.E. 901. Id. at 13. Appellant maintains that

the Commonwealth failed to authenticate the video by: (1) presenting a

witness who observed the recorded event and testified that the recording is a

fair and accurate record; or (2) presenting a witness who testified that the

recording process produced an accurate representation of the event and that

the recording has not been altered. Appellant analogizes the facts in this case

to those in Kopytin v. Aschinger, 947 A.2d 739 (Pa. Super. 2008), which

held that a surveillance video should not have been entered into evidence

where the “employees who made the recording had not testified” and the

witness who did testify was not present at the taping and thus could not say

whether the tape was “a fair and accurate depiction of [the defendant] at that

time.” Appellant’s Brief at 16-17.

      This Court has stated:

      [O]ur standard of review in assessing the trial court’s evidentiary
      rulings is extremely narrow. Such decisions are referred to the
      court’s discretion, and will not be disturbed absent both error and
      harm or prejudice to the complaining party. When legal issues
      such as the interpretation of a rule are concerned, “our standard
      of review is de novo and our scope of review is plenary.”

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Kopytin, 947 A.2d at 744 (citations omitted).

      [D]emonstrative evidence . . . is “tendered for the purpose of
      rendering other evidence more comprehensible to the trier of
      fact.” As in the admission of any other evidence, a trial court may
      admit demonstrative evidence whose relevance outweighs any
      potential prejudicial effect. The offering party must authenticate
      such evidence.        “The requirement of authentication or
      identification as a condition precedent to admissibility 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 authenticated by testimony from
      a witness who has knowledge “that a matter is what it is claimed
      to be.” Pa.R.E. 901(b)(1). Demonstrative evidence such as . . .
      motion pictures . . . have long been permitted to be entered into
      evidence provided that the demonstrative evidence fairly and
      accurately represents that which it purports to depict.

Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006) (some citations

omitted).

      As stated above, the trial court reasoned that in this case, no one

observed Appellant’s conduct as it occurred and thus the Commonwealth could

not present a witness who could testify that the surveillance video accurately

depicted the incident. N.T., 10/20/17, at 25; see also Commonwealth’s Brief

at 2 (“[T]he Commonwealth could not produce a witness with knowledge of

the facts depicted in the video per Pa.R.E. 901(b)(1) . . . .”). Nonetheless,

the trial court accepted Ms. Longacre’s testimony that she participated in

installing the surveillance camera and reviewed the particular video

approximately 2 hours and 15 minutes after it recorded Appellant; that

Appellant was the person in the video; that the video accurately depicted the

area surrounding Appellant’s desk; and that the video was kept in the custody

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of the store’s investigation team for five days before it was provided to the

state police. See N.T., 10/20/17, at 28-29, 34, 36. Ms. Longacre testified

that the surveillance video played at trial was not edited from what she

reviewed at the store, and Trooper Ballantyne likewise testified that the video

shown at trial was the same as what he received from the store. Id. at 38,

39.

      We agree with the trial court’s determination that the facts of Kopytin

are distinguishable from the fact of this case. See N.T., 10/20/17, at 32-33.

In Kopytin, the plaintiff sought damages for injuries sustained in a car

accident. Kopytin, 947 A.2d at 741-742. At trial, the defendant presented a

video taken by “two former employees” of a private investigative agency,

which showed the plaintiff in the community carrying heavy groceries. Id. at

742, 747. At trial, only the principal of the investigative agency testified about

the video, and he stated that “his knowledge of the circumstances surrounding

the surveillance of [the defendant’s] activities was derived from the

handwritten notes submitted with the tape by the two employees who actually

shot the film.” Id. at 747. This Court held that the principal’s testimony was

insufficient to authenticate the video under Pa.R.E. 901, “as it provide[d] no

demonstration of knowledge that ‘a matter is what it is claimed to be.’” Id.

Conversely, in the instant case, the surveillance video was taken from a

stationary camera inside a store, and Ms. Longacre testified that she helped

install the camera, knew where it was located, regularly reviewed the


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surveillance videos, viewed the particular video, and identified Appellant and

the area around his desk. N.T., 10/20/17, at 28-29, 33. Ms. Longacre had

firsthand knowledge about the surveillance camera, its location, and

Appellant’s identity and work area; she did not, like the witness in Kopytin,

rely on information from anyone else to testify. We thus discern no abuse of

discretion in the trial court’s determination that the Commonwealth properly

authenticated the surveillance video pursuant to Pa.R.E. 901. See Kopytin,

947 A.2d at 744.

      Further, Appellant has not claimed any prejudice by the admission of

the video, and the video was cumulative of other evidence presented by the

Commonwealth.      See N.T., 10/20/17, at 9-10 (testimony of Ms. Longacre

about Appellant’s conduct), 18-20 (testimony of Trooper Ballantyne about

Appellant’s conduct), 22-23 (Commonwealth’s request to play surveillance

video). It is undisputed that Appellant did not deny his behavior, see id. at

11 (“[W]hat you saw I was doing is what I was doing.”). Appellant admitted

to police that he masturbated with the pink shorts and the sandwich and he

had seminal fluid on his hand when he rewrapped the sandwich that would

later be eaten by Ms. Parent. Id. at 23, 51-52. Accordingly, we do not disturb

the trial court’s admission of the store’s surveillance video. See Kopytin, 947

A.2d at 744; Serge, 896 A.2d at 1177.

      In Appellant’s second issue, he claims that the verdict was against the

weight of the evidence. Specifically, Appellant contends that the weight of the


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evidence did not support the trial court’s findings that Ms. Parent came into

contact with seminal fluid and that it was Appellant’s intention that she do so.

Appellant maintains that Trooper Ballantyne’s testimony about whether

Appellant’s penis touched the sandwich was inconsistent; Appellant denied to

police that he ejaculated onto the sandwich; the Commonwealth’s evidence

consisted merely of the “contested” store surveillance video and Trooper

Ballantyne’s testimony about, and video recording of, his interview with

Appellant; and neither the sandwich nor its wrapper was available for

examination. Id. at 23-24. Upon review, we find that Appellant has waived

his weight issue. This Court has explained:

      [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, “but questions which
      evidence is to be believed.”

Commonwealth v. Richard, 150 A.3d 504, 516 (Pa. Super. 2016). “It is . .

. well-settled that a defendant must present his challenge to the weight of the

evidence to the trial court for a review in the first instance either in a post-

sentence motion, by written motion before sentencing, or orally prior to

sentencing. See Pa.R.Crim.P. 607(A)[.]” Id. (one citation omitted).

      At trial, Appellant moved to dismiss the charges on the basis that the

Commonwealth failed to present sufficient evidence. N.T., 10/20/17, at 49-

50. Our review of the trial transcript reveals that Appellant never challenged

the weight of the evidence. Additionally, Appellant did not file any post-trial


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motion. See Pa.R.Crim.P. 607(A). As he presents the weight issue for the

first time on appeal, it is waived. See Richard, 150 A.3d at 516.

      Moreover, even if Appellant had preserved and presented his weight

claim to the trial court, we would find it meritless. The trial court accepted

the Commonwealth’s evidence, including Appellant’s statement to Trooper

Ballantyne that Appellant’s hand would have glowed under a black light due

to the presence of seminal fluid when he handled the sandwich. See N.T.,

10/20/17, at 9, 19, 51-52. The trial court’s verdict would not shock one’s

sense of justice. See Richard, 150 A.3d at 517. For the foregoing reasons,

we affirm the judgment of sentence.

      Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/07/2018




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