J-A23006-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                       :        PENNSYLVANIA
                                       :
            v.                         :
                                       :
                                       :
ERIC RATHMANN                          :
                                       :
                    Appellant          :   No. 3257 EDA 2016

        Appeal from the Judgment of Sentence September 23, 2016
             In the Court of Common Pleas of Chester County
           Criminal Division at No(s): CP-15-CR-0004713-2015


BEFORE:   PANELLA, J., DUBOW, J., and FITZGERALD*, J.

MEMORANDUM BY PANELLA, J.                     FILED DECEMBER 01, 2017

     Appellant, Eric Rathmann, appeals from the judgment of sentence

entered on September 23, 2016, in the Court of Common Pleas of Chester

County. A video of Rathmann in his neighbor’s bedroom, created on a

motion-activated web camera, formed the basis for his convictions of

burglary and criminal trespass. On appeal, he raises three evidentiary

challenges. We affirm.

     Rathmann resided at Summit House Condominiums in West Chester,

Pennsylvania. Gregory Greenly lived in the residence next door. Summit

House is a complex comprised of multi-floor adjoining residences. The

neighbors’ condominiums share an exterior fence on the ground level and

share a partitioned balcony on the second floor. The partition is just three

feet high. In Greenly’s residence, a sliding glass door separates a bedroom

from the balcony.

____________________________________
* Former Justice specially assigned to the Superior Court.
J-A23006-17



     In his bedroom, Greenly had a motion-activated web camera set on his

computer. On November 5, 2015, the camera captured Rathmann, wearing a

hoodie cinched close to his face, in Greenly’s room. He had climbed over the

partition and entered the residence through an unlocked sliding glass door.

The bedroom contained items of value, golf clubs and a television, among

other things, but Rathmann took no items from the residence. Based on the

video, the police arrested Rathmann.

     The matter proceeded to a jury trial. At trial, the Commonwealth

offered two photographs into evidence, Commonwealth Exhibits 1 and 2,

portraying   two   views   of   the   outside   of   Greenly’s   and   Rathmann’s

condominiums. Greenly answered “[y]es” when asked by the Commonwealth

if the photographs “fairly and accurately show what those portions of your

house looked like back in November of 2015?” Id., at 22.

     Rathmann objected to the introduction of the photographs, arguing

they were not properly authenticated as “[t]he photos clearly were taken in

the summertime. There are leaves on the tress, the grass is green.” N.T.,

Trial, 7/14/16, at 22. “[O]bviously,” Rathmann maintained, “it … can’t

accurately reflect what it looked like in November of 2015.” Id. The trial

court overruled the objection, explaining the purpose of the photographs

was “simply” to show “what type of apartment it is and the connection

between the two apartments. The fact that the vegetation is different is not

of a major concern here.” Id., at 23.




                                       -2-
J-A23006-17



        Later in his testimony, the Commonwealth asked Greenly what he saw

on the surveillance video.1 Greenly responded that he “saw the defendant.”

Id., at 32. Rathmann objected to this line of questioning. At sidebar, he

explained to the trial court that the video had not been properly

authenticated pursuant to Rule 901(a) of the Pennsylvania Rules of

Evidence. Rathmann noted the video is a digital copy from a computer and

“there is [sic] numerous ways this video could have been manipulated

before it was even turned over to the police.” Id., at 33. The trial court ruled

the testimony proper so long as “he can simply lay a little more foundation

that this is the guy that took the video” and that he “didn’t tamper with it at

all….” Id., at 34. Greenly resumed his testimony. He methodically explained

how the web camera video system worked, how it time-stamped the date,

and that he did not alter or tamper with the footage when he made a copy

for the police. See id., at 40-46.

        At the conclusion of Greenly’s testimony, the Commonwealth offered

the video, marked as Commonwealth’s Exhibit 7, into evidence. Rathmann

lodged a further objection—“that it’s not the best evidence under Rule

1002.” Id., at 47. The trial court denied the objection. It then briefly

instructed the jury that it was for them to weigh the evidence and not to




____________________________________________


1   The Commonwealth also played the video for the jury.



                                           -3-
J-A23006-17



form any opinions on the case until they heard the entire case. See id., at

47-48. Rathmann lodged no objection to this instruction.2

       Rathmann testified at trial. He admitted it was he in the video and in

the still frame captures from the video; he admitted he climbed over the

partition on the day in question; he admitted he entered the residence; he

admitted he walked around Greenly’s bedroom; and he admitted he had no

permission to be in the bedroom. See N.T., Trial, 7/15/16, at 16-20.

Although he admitted to all that, he also testified he had no memory of

actually entering the bedroom and being there. The Commonwealth argued

he was there with an intent to steal items of value. But Rathmann disagreed,

countering he was in the bedroom out of “curiosity” about “[h]ow the house

looked.” Id., at 22.

       The jury disbelieved Rathmann. They found him guilty of burglary and

criminal trespass. The trial court later sentenced him to an aggregate term

of six to twenty-three months’ imprisonment. This timely appeal followed.

       On appeal, Rathmann raises three issues alleging the trial court erred

in admitting evidence.

             The admission or exclusion of evidence is within the sound
       discretion of the trial court, and in reviewing a challenge to the
____________________________________________


2 Rathmann takes issue with this eminently reasonable instruction on appeal.
See Appellant’s Brief, at 6. As he lodged no objection to this instruction at
trial, we find this issue waived. See Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.”)



                                           -4-
J-A23006-17


     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).

     Rathmann first claims the trial court erred in admitting Commonwealth

Exhibits 1 and 2 without proper authentication. “The authenticating witness

declared on direct examination that the photographs ‘fairly and accurately

showed what those portions of your house looked like back in November of

2015.’” Appellant’s Brief, at 17 (emphasis in original) (quoting N.T., Trial,

7/14/16, at 22). According to Rathmann, that statement was patently false

as “the photographs did not accurately depict what the house looked like in

the autumn or early winter, and that is what the Commonwealth specifically

offered them to show….” Id. Candidly, this claim is absurd.

     The photographs were demonstrative evidence. That is, “evidence …

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) (citation omitted). “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 such as

photographs, motion pictures, diagrams, and models have long been

                                    -5-
J-A23006-17


permitted to be entered into evidence provided that the demonstrative

evidence fairly and accurately represents that which it purports to depict.”

McKellick, 24 A.3d at 986-987 (citation omitted).

     The Commonwealth used the photographs as demonstrative evidence

to show what the residences looked like and their proximity to each other—

not for what they looked like at a particular time of year. Foliage is

irrelevant. The structures did not change. And Greenly testified the

photographs fairly and accurately depict his residence. The trial court

committed no error in admitting the photographs.

     Rathmann next argues the trial court erred in admitting the testimony

about the video as there was a failure of proper authentication. Video is also

demonstrative evidence. “Videotape requires an authenticating witness who

has seen the event or transaction and can testify to the accuracy of the

portrayal.” Hon. Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of

Evidence, § 901.08[5][e] Videotape (2016 ed.) (citation omitted). Simply

put, as with the photographs, the video 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).

     Here, that the video is an accurate depiction of Rathmann in Greenly’s

bedroom. And that is exactly what Greenly offered at trial. Greenly explained

how the web camera system worked and that it took video of Rathmann in




                                    -6-
J-A23006-17


his bedroom. See N.T., Trial, 7/14/16, at 40-46. Greenly properly

authenticated the video before it was entered into evidence.

       Even putting aside this legal reality and assuming the video was

improperly authenticated, this error would be harmless. The conclusion of

Rathmann’s argument on this issue is that the video “served as the

foundation upon which three witnesses, Gregory Greenly, Thomas Greenly

and Detective Large, identified the person on the video.” Appellant’s Brief, at

23. Rathmann testified that on November 5, 2015, he climbed over the

partition and entered Greenly’s bedroom—and that he was the man in the

video. See N.T., Trial, 7/15/16, at 20. Thus, he cannot now argue the

identification derived from the video prejudiced him.

       Lastly, Rathmann argues the trial court erred in admitting a copy of

the digital video file from the computer’s hard drive contained on a CD-R

disk.3 Rathmann asserts the Commonwealth was required, under Pa.R.E.

1002, to admit “the original video,” which “was on the hard disk drive” of

Greenly’s computer. Appellant’s Brief, at 24. Greenly made a copy of the




____________________________________________


3A “CD-R (Compact Disc-Recordable) is a digital optical disc storage format.
A CD-R disc is a compact disc that can be written once and read arbitrarily
many         times.”       CD-R,         Wikipedia,       available       at
https://en.wikipedia.org/wiki/CD-R (last visited November 3, 2017).




                                           -7-
J-A23006-17


video file onto a thumb drive,4 which the police then copied onto a CD-R

disc.

        Rule 1002 “corresponds to the common law ‘best evidence rule,’”

Pa.R.E. 1002 Comment, and provides that “[a]n 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.” “The best evidence rule applies where the contents of the item in

question must be proven to make a case.” Commonwealth v. Janda, 14

A.3d 147, 161-162 (Pa. Super. 2011) (citation omitted). That is clearly the

case here.

        “Original” is defined, in pertinent part, as follows: “For electronically

stored information, ‘original’ means any printout--or other output readable

by sight--if it accurately reflects the information.” Pa.R.E. 1001(d). See also

Hon. Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence, §

1001.09 Computer Data (2016 ed.) (“If data are stored in a computer or


____________________________________________


4 “A USB flash drive, also variously known as a … thumb drive … is a data
storage device that includes flash memory with an integrated USB interface.”
USB         flash         drive,       Wikipedia,        available        at
https://en.wikipedia.org/wiki/USB_flash_drive (last visited November 3,
2017). What is USB? We have the answer: “USB, short for Universal Serial
Bus, is an industry standard that defines cables, connectors and
communications protocols for connection, communication, and power supply
between computers and devices.” USB, Wikipedia, available at
https://en.wikipedia.org/wiki/USB (last visited November 3, 2017).




                                           -8-
J-A23006-17


similar device, any print out or other output that accurately reflects the data

is an ‘original’ under Rule 1001(3).”)

      It is the definition of “original” that defeats Rathmann’s claim. The

digital video file on the CD-R disc was played for the jury. And Greenly

testified the video was an accurate portrayal of his bedroom and that

Rathmann was the individual in the video. Indeed, as mentioned, even

Rathmann corroborated Greenly’s testimony by identifying himself on the

video in Greenly’s bedroom.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/1/2017




                                     -9-
