J-A31017-16

                                  2017 PA Super 262



COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

ANGEL RIBOT

                            Appellee                   No. 1190 EDA 2015


                      Appeal from the Order March 27, 2015
               In the Court of Common Pleas of Philadelphia County
               Criminal Division at No(s): CP-51-CR-0009168-2014


BEFORE: BENDER, P.J.E., MOULTON, J., and FITZGERALD, J.*

OPINION BY MOULTON, J.:                               FILED AUGUST 15, 2017

       The Commonwealth of Pennsylvania appeals from the March 27, 2015

order entered in the Philadelphia County Court of Common Pleas granting

Angel Ribot’s motion in limine to exclude evidence.1 We reverse.

       On July 26, 2014, Officer Thomas Donahue met with a confidential

informant (“CI”) to arrange a controlled buy of illegal narcotics and gave the
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
        In its notice of appeal, the Commonwealth certified that the trial
court’s order granting Ribot’s motion to exclude evidence substantially
handicaps the prosecution. See Pa.R.A.P. 311(d) (permitting interlocutory
appeal where Commonwealth certifies with its notice of appeal that order
terminates or substantially handicaps prosecution); Commonwealth v.
Belani, 101 A.3d 1156, 1157 n.1 (Pa.Super. 2014) (stating that this Court
may not inquire into Commonwealth’s good-faith certification that exclusion
of evidence handicaps prosecution). Thus, the appeal is properly before us.
See Commonwealth v. Ivy, 146 A.3d 241, 244 n.2 (Pa.Super. 2016).
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CI a $20 bill. Before giving the bill to the CI, Officer Donahue recorded the

bill’s serial number into a computer database, printed out a time-stamped

copy of the computer entry, and circled the serial number of the bill on the

computer printout. Officer Donahue transported the CI to the 2800 block of

North Hope Street in Philadelphia, where the CI approached Ribot, engaged

him in a brief conversation, and handed him money in exchange for packets

of heroin. The Commonwealth charged Ribot with possession of a controlled

substance with intent to deliver (“PWID”) and possession of a controlled

substance.2

       On November 4, 2014, Ribot filed a motion requesting the production

of the pre-recorded buy money used in the July 26, 2014 transaction. On

November 6, 2014, the trial court ordered the Commonwealth to make the

$20 bill available to Ribot for inspection.        The Commonwealth did not

produce the $20 bill because the bill had been placed back into circulation

for use in future controlled buys. It did, however, produce a printout of the

time-stamped computer entry showing that the bill’s serial number had been

recorded the day before the controlled buy.

       On March 26, 2015, Ribot orally moved to preclude the Commonwealth

from introducing into evidence any reference to the pre-recorded buy

money. At the hearing on the motion,


____________________________________________


       2
           35 P.S. § 780-113(a)(30) and (a)(16).



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        the Commonwealth presented the testimony of [Officer]
        Donahue . . . . The officer’s testimony [was] as follows:
        That he has been a narcotics agent for the past five years,
        using [CIs] and pre-recorded buy money on hundreds of
        occasions. That he only records serial numbers of the pre-
        recorded buy money at this juncture and that the former
        protocol was to make photocopies of the funds. Officer
        Donahue also stated on cross examination that he has
        photocopied pre-recorded buy money in the past. Counsel
        for [Ribot] showed the officer a written directive to
        photocopy all pre-recorded serial numbers of the funds
        utilized in the investigation. The officer stated that he
        believed the directive was changed and that it was done
        orally . . . .

Opinion, 1/19/16, at 2 (“1925(a) Op.”) (citations omitted). Officer Donahue

testified about his method of pre-recording the buy money as follows:
        Prior to leaving my office every day I receive buy money
        from my sergeant whether it’s $200, $300, $400 in cash.
        I have to go to a computer, we pull up a specific screen,
        then document all the serial numbers that are on every
        $20 bill, or $10 bill[,] whatever the denominations happen
        to be. You have to document that in the computer. You
        send it, it becomes a general [sic] in the police department
        which means it can be pulled up at a later time, and then
        you printout a copy. You take that copy out with you,
        circle the specific serial number that you use for specific
        jobs and then you use that pre-recorded buy money to
        purchase illegal narcotics.

N.T., 3/26/15, at 11-12.

     At the conclusion of the hearing, the trial court granted Ribot’s motion

in limine and “precluded the Commonwealth from mentioning that buy

money was exchanged or recovered from [Ribot].         However, the police

officer can mention that he witnessed an exchange of money between the

[CI] and [Ribot].” 1925(a) Op. at 1; see N.T., 3/27/15, at 3-4. The trial

court further “stated that the buy money that is in question should have


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been photocopied and not just the serial numbers placed into the computer.”

1925(a) Op. at 1; see N.T., 3/27/15, at 4.       The Commonwealth timely

appealed to this Court.

      On appeal, the Commonwealth raises the following issue:        “Did the

lower court err in excluding evidence that money police had pre-recorded for

use in the controlled buy was recovered from [Ribot] following the drug deal,

on the ground that the police had not photocopied the buy money?”

Cmwlth.’s Br. at 4.

      We review a trial court’s decision to grant a motion in limine for an

abuse of discretion.      Commonwealth v. Belani, 101 A.3d 1156, 1160

(Pa.Super. 2014). “‘A trial court has broad discretion to determine whether

evidence is admissible,’ and [its] ruling regarding the admission of evidence

‘will not be disturbed on appeal unless that ruling reflects manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support to    be clearly erroneous.’”   Id. (quoting Commonwealth v.

Huggins, 68 A.3d 962, 966 (Pa.Super. 2013)).

      The Commonwealth contends that the trial court abused its discretion

in precluding the Commonwealth from introducing:       (1) a printout of the

time-stamped computer entry showing that Officer Donahue had recorded

the buy money’s serial number before giving it to the CI; and (2) Officer

Donahue’s testimony regarding his personal knowledge of recording the buy

money in the computer, giving the bill to the CI, and identifying the bill

among the currency recovered from Ribot after the drug buy. In excluding

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this evidence, the trial court reasoned that “it would be highly prejudicial to

allow the buy money to get into evidence at this point when it would have

been more appropriate if the buy money had been photocopied as well as

the serial numbers put in the computer[].”        N.T., 3/27/15, at 5-6; see

1925(a) Op. at 5 (emphasis added). We disagree.

        Both the trial court in its opinion and Ribot in his brief reference the

“best-evidence rule.” That rule is codified in 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.” Pa.R.E.

1002.      Courts apply the best-evidence rule when the contents of

documentary evidence are at issue – that is, if the terms of a writing must

be proven to make a case or provide a defense.             Commonwealth v.

Townsend, 747 A.2d 376, 380 (Pa.Super. 2000). Thus, Rule 1002 requires

that an original writing, recording, or photograph be introduced at trial only

if the proponent must prove the contents of the writing, recording, or

photograph to prove the elements of its case. Id.

        We agree with the Commonwealth that Commonwealth v. Harris,

719 A.2d 1049 (Pa.Super. 1998), is controlling here.         In Harris, a jury

convicted the defendant of PWID and related offenses based on his sale of

cocaine to an undercover officer during a controlled buy.      Id. at 1250-51.

On appeal, the defendant argued that the trial court violated the best-

evidence rule when it admitted into evidence a photocopy of the $20 bill

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used by the undercover officer to purchase cocaine from the defendant and

allowed the officer to testify that the $20 bill retrieved from the defendant

matched the bill on the photocopy. Id. at 1051. This Court held that the

best-evidence rule did not apply. Id. at 1052. We explained:
         The material issues in this case were whether [the
         defendant] knowingly possessed and delivered a controlled
         substance. The Commonwealth clearly made out its case
         with the testimony of the undercover officer who identified
         appellant as the individual who sold him the substance
         identified as cocaine. The testimony about the twenty
         dollar bill, specifically, the serial number, was mere
         cumulative evidence, corroborating a crime which had
         already been established.      In these circumstances,
         where the “contents of the documentary evidence”
         (i.e. the writing on the bill) were not at issue, the
         best evidence rule does not apply, and the trial court
         did not abuse its discretion in admitting the
         photocopy of the marked twenty dollar bill9 or the
         oral testimony.
            9
              Because we find that the best evidence rule was not
            applicable, we do not address the issue of whether
            the Commonwealth offered a satisfactory explanation
            for failing to produce the original bill. Clearly, in
            this instance where the terms of the writing
            were not necessary to proof of the crime,
            secondary evidence was admissible and the
            rationale was adequate.

Id. (emphases added) (internal citation omitted).

      Applying Harris’s rationale to the facts of this case, we conclude that

the trial court abused its discretion in excluding evidence of the pre-recorded

buy money.      Here, as in Harris, the material issue is whether Ribot

knowingly   possessed    and   delivered   a   controlled   substance.     The

Commonwealth would be able to prove its case with the testimony of Officer


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Donahue regarding his observation of the transaction between the CI and

Ribot or the testimony of the CI identifying Ribot as the person who sold him

the drugs.   Officer Donahue’s proposed testimony about the pre-recorded

$20 bill and its serial number would simply be additional evidence in support

of that identification testimony.       Because the Commonwealth was not

required to prove the bill’s serial number in order to prove the elements of

PWID or possession of a controlled substance, the best-evidence rule is

inapplicable. See Harris, 719 A.2d at 1052; see also Commonwealth v.

Dent, 837 A.2d 571, 590 (Pa.Super. 2003) (“If the Commonwealth does not

need to prove the contents of the writing or recording to prove the elements

of the offense charged, then the Commonwealth is not required to introduce

the original writing or recording.”).    Therefore, secondary evidence of the

pre-recorded buy money – namely, the time-stamped computer printout

showing the bill’s serial number – is admissible. See Harris, 719 A.2d at

1052 n.9.

      The trial court’s decision appears to have been based less on the best-

evidence rule than on its dissatisfaction, as a matter of policy, with the

police department’s approach to these cases. The trial court stated:
         In this case the pre-recorded buy money was not recorded
         to the satisfaction of the Court. The defense presented
         written evidence of a protocol to be followed as to the
         police investigators photocopying serial numbers.    The
         response from Office Donahue was that he believed it was
         changed orally in the summer of 2011 but wasn’t sure if a
         hand written copy of that changed directive was
         distributed. The Court only precluded reference to pre-


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        recorded buy money and permitted the officer to testify as
        to the exchange of currency between the [CI] and [Ribot].

                                    ...

        [I]f the Commonwealth was going to utilize the phrase
        “pre-recorded buy money” then there should have been
        some semblance of its existence rather than the oral
        testimony of the officer stating that he entered the serial
        numbers of record into a computer and then introduce that
        writing to the Court or to a jury. To the extent that Rule
        1002 has any applicability, this Court would have
        preferred the best evidence available, namely a
        reproduction of pre-recorded buy money, since the original
        bills were no longer available and presumably in use again
        in other investigations.

1925(a) Op. at 3, 5 (emphasis added).

     However understandable the trial court’s preference for a photocopy of

the buy money may be, the Commonwealth was not required to produce a

photocopy, particularly where none exists. As the Commonwealth correctly

points out, the officer’s method of recording the buy money goes to the

weight of the evidence, not its admissibility.    In our adversary system,

litigants retain the freedom to choose to present weaker evidence over

stronger evidence. Here, the strongest evidence might be $20 bill itself; the

second strongest, perhaps, would be a photocopy of the bill. While evidence

of the officer’s entry of the bill’s serial number into the computer may be

less strong than either of those alternatives, that means only that such

evidence is more vulnerable to attack, not that it is inadmissible. At trial,

Ribot’s counsel would have ample opportunity to cross-examine Officer




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Donahue about the buy money and his method of pre-recording its serial

number.

     We also reject Ribot’s contention that the trial court properly excluded

evidence of the pre-recorded buy money and its serial number as a sanction

for the Commonwealth’s alleged violation of the November 6, 2014 discovery

order. See Pa.R.Crim.P. 573(E) (allowing trial court to prohibit introduction

of evidence not disclosed during pretrial discovery).   It is undisputed that

the original $20 bill could not be produced because it had been placed back

into circulation; nor is there a viable claim that re-using buy money in this

fashion is in any way inappropriate.   The Commonwealth does not violate

mandatory disclosure rules by failing to produce evidence that it reasonably

does not possess. See Commonwealth v. Collins, 957 A.2d 237, 253 (Pa.

2008) (“The Commonwealth does not violate Rule 573 when it fails to

disclose to the defense evidence that it does not possess . . . .”)

(emphasis added).

     Accordingly, we conclude that the trial court abused its discretion in

precluding evidence of the pre-recorded buy money.

     Order reversed.

     President Judge Emeritus Bender joins the opinion.

     Justice Fitzgerald files a concurring statement.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/2017




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