J-A23007-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                         IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                           Appellee

                     v.

KASHAMARA GREEN

                           Appellant                      No. 1324 WDA 2014


           Appeal from the Judgment of Sentence March 18, 2014
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0001078-2012


BEFORE: GANTMAN, P.J., LAZARUS, J., and MUSMANNO, J.

DISSENTING MEMORANDUM BY GANTMAN, P.J.:FILED DECEMBER 22, 2015

      I   respectfully    disagree    with   the   majority’s    decision   to   vacate

Appellant’s judgment of sentence and remand for a new trial.                     In my

opinion, the admission of the limited testimony regarding the surveillance

video was at most harmless error, in light of the other properly admitted

evidence at trial as well as the jury’s verdict.                The Commonwealth’s

evidence, even without that particular testimony, was sufficient to convict

Appellant of theft by failure to make a required disposition of funds received.

Therefore, I dissent.

      This Court has held:

          “Admission of evidence is within the sound discretion of
          the trial court and will be reversed only upon a showing
          that the trial court clearly abused its discretion.”
          Commonwealth v. Drumheller, 570 Pa. 117, 135, 808
          A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123
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         S.Ct.    2284,   156   L.Ed.2d   137    (2003)   (quoting
         Commonwealth v. Stallworth, 566 Pa. 349, 363, 781
         A.2d 110, 117 (2001)).        “Admissibility depends on
         relevance and probative value. Evidence is relevant if it
         logically tends to establish a material fact in the case,
         tends to make a fact at issue more or less probable or
         supports a reasonable inference or presumption regarding
         a material fact.”         Drumheller, supra (quoting
         Stallworth, supra at 363, 781 A.2d at 117–18).

Commonwealth v. Reese, 31 A.3d 708, 716 (Pa.Super. 2011) (en banc).

      The “best evidence” rule provides “[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.”

Pa.R.E. 1002.    Rule 1004 of the Pennsylvania Rules of Evidence further

provides, in relevant part:

         Rule 1004.       Admissibility of Other Evidence of
         Content

         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;

         (b) an original cannot be obtained by an available judicial
         process;

                                 *    *    *

         (d) the writing, recording, or photograph is not closely
         related to a controlling issue.

Pa.R.E. 1004(a)-(b), (d). Furthermore, Rule 1008 of the Pennsylvania Rules

of Evidence provides:


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           Rule 1008. Functions of the Court and Jury

           Ordinarily, the court determines whether the proponent
           has fulfilled the factual conditions for admitting other
           evidence of the content of a writing, recording, or
           photograph under Rule 1004 or 1005. But in a jury trial,
           the jury determines—in accordance with Rule 104(b)—any
           issue about whether:

                                     *     *     *

           (c) other evidence of content accurately reflects the
           content.

Pa.R.E. 1008(c). “The Best Evidence Rule is only applicable to the proof of

the contents of the documents when the contents of those documents are

material    to,   rather   than   mere    evidence    of,    the    issues    at   bar….”

Commonwealth v. Lewis, 623 A.2d 355, 358 (Pa.Super. 1993).                          Thus,

“[i]f 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.” Commonwealth v. Dent, 837 A.2d 571, 590 (Pa.Super. 2003).

      An error at trial, however, does not automatically entitle an appellant

to a new trial. Reese, supra at 719. “‘[T]he harmless error doctrine, as

adopted in Pennsylvania, reflects the reality that the accused is entitled to a

fair trial, not a perfect trial….’” Id. (quoting Commonwealth v. West, 834

A.2d 625, 634 (Pa.Super. 2003), appeal denied, 586 Pa. 712, 889 A.2d 1216

(2005)). Harmless error exists when:

           (1) the error did not prejudice the defendant or the
           prejudice was de minimis; or (2) the erroneously admitted

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           evidence was merely cumulative of other untainted
           evidence which was substantially similar to the erroneously
           admitted evidence; or (3) the properly admitted and
           uncontradicted evidence of guilt was so overwhelming and
           the prejudicial effect of the error so insignificant by
           comparison that the error could not have contributed to
           the verdict.

Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa.Super. 2004),

appeal denied, 582 Pa. 673, 868 A.2d 1199 (2005) (internal citation

omitted).    Harmless error is “a technique of appellate review designed to

advance judicial economy by obviating the necessity for a retrial where the

appellate court is convinced that a trial error was harmless beyond a

reasonable doubt.”       Commonwealth v. Koch, 39 A.3d 996, 1006

(Pa.Super. 2011). “An error will be deemed harmless where the appellate

court concludes beyond a reasonable doubt that the error could not have

contributed to the verdict. If there is a reasonable possibility that the error

may have contributed to the verdict, it is not harmless.” Commonwealth

v. Mitchell, 576 Pa. 258, 280, 839 A.2d 202, 214-15 (2003).                The

Commonwealth bears the burden to establish that the error was harmless.

Id. at 280, 839 A.2d at 215.

      Instantly, the Commonwealth charged Appellant with four counts of

theft by failing to make the required disposition of funds and one count of

forgery.    Following trial, the jury convicted Appellant of only one count of

theft and found him not guilty on the remaining counts.             The court

sentenced Appellant to three years’ probation and restitution in the amount


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of $2,900.83, which was the specific amount associated with the one-count

conviction.

      At Appellant’s jury trial, the Commonwealth introduced the testimony

of Shaun McDonald, the Loss Prevention Director at Family Dollar, PNC Bank

and Internal Fraud Investigator, Colleen Doheny, and investigating detective

Joseph Blaze. Chronologically speaking, Mr. McDonald received notice of a

cash shortage at the Family Dollar store where Appellant was manager.

Upon investigation, Mr. McDonald discovered four missing deposits from that

store. After reviewing the store paperwork, Mr. McDonald was able to verify

that several dollar amounts marked for deposit and signed by Appellant were

not placed in the bank drop box or deposited; specifically, the July 10, 2011

proceeds ($2,900.83), the August 7, 2011 proceeds ($2,943.31), the August

19, 2011 proceeds ($2,302.31), and the September 1, 2011 proceeds

($3,302.56).   Appellant gave a written, signed statement that he was

responsible to take the deposits to the bank and was the only employee with

a vehicle to do so.   Appellant also gave Mr. McDonald a deposit slip for

Family Dollar in the amount of $2,900.83, which stated it was for the

business day of July 10, 2011 and was deposited on July 14, 2011.        The

Family Dollar deposit log, however, indicated that the $2,900.83 from the

business day of July 10, 2011, was taken to the bank on July 12, 2011. Mr.

McDonald was able to determine that the deposit slip Appellant gave him

had been altered, because the sequence number and other information


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Appellant provided corresponded to another deposit made the previous

month (June 7, 2011). Mr. McDonald verified that the store managers were

not permitted to keep the nightly deposits. (See N.T. Trial, 3/17-18/14, at

24-62.)

      Ms. Doheny was initially asked to investigate a missing Family Dollar

deposit. At trial, she testified that she reviewed the teller journals and was

unable to locate that deposit for the date in question. She also reviewed the

deposit ticket that Appellant had given to Mr. McDonald, representing a

deposit of $2,900.83.   Ms. Doheny recognized that the information on the

slip did not line up evenly, and the printing was inconsistent with the bank’s

practice of using all capital letters for the month(s). Ms. Doheny suspected

the deposit ticket was not genuine. Moreover, the ticket referenced a teller

cash box that was not in operation on the date of the proposed deposit, July

14, 2011, as represented on the ticket. The sequence number on the ticket

was also invalid. There was, however, a matching sequence number for a

deposit the prior month, on June 7, 2011.

      Ms. Doheny also reviewed surveillance tapes from PNC for the dates in

question and saw no one on the tapes who matched Appellant’s description.

Before her testimony regarding the surveillance tapes, defense counsel

objected based on the best evidence rule, because Ms. Doheny viewed the

videos after the fact and the original videos were unavailable at trial.

Instead of precluding this particular testimony, the court invited defense


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counsel to cross-examine the witness vigorously. Regarding the surveillance

videos, Ms. Doheny then testified as follows:

        PROSECUTOR:           Ma’am, were you able to view any
        surveillance video from PNC?

        MS. DOHENY:          Yes.

        PROSECUTOR:          Were    you   given   a   description   of
        [Appellant]?

        MS. DOHENY:           Yes. They would call me. I would ask
        them a general description, and also I always ask for type
        of vehicle just in case I see them going in and out of the
        lot.

        PROSECUTOR:          Were you asked to view the video for
        certain days?

        MS. DOHENY:           Yes. I don’t recall the days, but they
        do ask me in any investigation to view video. I would
        review it for half an hour before the time and half an hour
        after the time, so I’ll look for an hour. If someone says
        they are at the bank of 12:00, I’ll look at 11:30 to 12:30,
        giving some leeway there.

        PROSECUTOR:         Where do those cameras point to?
        What is the angle on those cameras?

        MS. DOHENY:          There [are] angles everywhere. They
        are on the teller line. They are on the night depository
        outside. They are on the ATM outside. They are on the
        ATM inside, night depository inside also.

        PROSECUTOR:          At any point while you were viewing
        those videos, did you see someone matching the
        description of the defendant on those videos?

        MS. DOHENY:         No, not during the time frame that
        they gave me to look at.

        PROSECUTOR:          What about his vehicle?


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         MS. DOHENY:          No, not during the time frame.

                                  *      *   *

(See id. at 72-73.) On cross examination, Ms. Doheny testified with respect

to the surveillance videos as follows:

         DEFENSE COUNSEL: Good afternoon, ma’am. I’ll ask you
         some questions as well. The video you’re speaking of, the
         time frame you were given, that was provided to you by
         the police; is that correct?

         MS. DOHENY:          Yes.

         DEFENSE COUNSEL: So that was not a time frame that was
         provided to you by [Appellant], correct?

         MS. DOHENY:          Correct.

         DEFENSE COUNSEL: You’ve never met—at the time that
         you were viewing these videos, you had never met
         [Appellant], correct?

         MS. DOHENY:          Correct.

         DEFENSE COUNSEL: And so your only physical description
         of him was a photo that you looked at; is that correct?

         MS. DOHENY:          No. I don’t ask for a photo. I ask for
         a description, and then I look at the area where they are
         making the deposit and then the date and the time.

         DEFENSE COUNSEL: So you didn’t even look at a photo of
         [Appellant]. You just had a verbal description of what he
         looked like?

         MS. DOHENY:          Yes.

(See id. at 73-74.) On redirect examination, the Commonwealth inquired

the following:

         PROSECUTOR:          If you noticed anybody—while you

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        were viewing the video, if you noticed anybody closely
        matching the description that you were given, would you
        have told the police?

        MS. DOHENY:         I would have told them, and I would
        have printed a photo.

                                 *    *    *

(See id. at 78-79.) This recounting represents the entirety of Ms. Doheny’s

limited testimony on the subject of the surveillance videos.     As the text

makes clear, defense counsel effectively called Ms. Doheny’s testimony into

question. Only later, in its March 2, 2015 opinion, the court second-guessed

itself on allowing this testimony, based solely on this Court’s decision in

Lewis, supra.      Without any analysis whatsoever, the court simply

announced in its opinion that Lewis controlled and the error was not

harmless. The majority simply mirrors this position.

     Nevertheless, I think Lewis is not dispositive of the present case for

several reasons. First, Lewis does not necessarily stand for the proposition

that any violation of the best evidence rule is per se reversible error.

Instead, Lewis turned on the facts and circumstances specific to that case.

Second, the objectionable testimony in Lewis was about what the witness

actually saw Appellant do on the videos, followed by the witness’

interpretation of those actions, which raised the unfair inference that the

appellant knew what his companion was doing.           All the knowledge the

witness possessed was solely from viewing the videos. This Court reasoned

“the best evidence rule should apply to prevent mistransmission of the facts

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surrounding [the appellant’s] acts in the Sears store which might mislead

the jury.” See Lewis, supra at 358. Significantly, this Court said the error

was not harmless because the properly admitted testimony of another

witness was not independently cumulative1 to prove the appellant knew his

companion intended to remove merchandise from the store without paying

for it. Therefore, admission of that particular video testimony violated the

best evidence rule and was not harmless error. Id. at 359.

       Presently, the Commonwealth introduced Ms. Doheny’s testimony

regarding her observation that Appellant did not appear on the surveillance

videos, presumably to show Appellant failed to make the required deposit at

the time he said he had made it. Because this testimony could possibly be

related to a controlling issue, i.e., whether Appellant made the missing

deposit when he claimed he did, the Commonwealth probably should have

introduced the original surveillance videos.2 See Pa.R.E. 1002 and Pa.R.E.

1004(d).     Therefore, Ms. Doheny’s testimony arguably violated the best

evidence rule.

       I am convinced, however, that the admission of Ms. Doheny’s limited

____________________________________________


1
 In fact, this Court remarked that the only other evidence against Appellant
was actually contradictory. Id. at 359.
2
  The Commonwealth insists it offered the surveillance video testimony only
to show whether Appellant physically appeared at the bank, not to prove an
element of the crime. The Commonwealth’s intent, however, does not
strictly control the potential effect this evidence could have on the jury.



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surveillance video testimony was harmless error. For example, Ms. Doheny

testified she also conducted a search of the records and teller electronic

journals from the PNC at Penn Hills to determine whether any deposits had

been made to Family Dollar’s account on July 14, 2011 for $2,900.83. Ms.

Doheny testified there was no record a deposit in that amount had ever been

made on July 14, 2011. Moreover, Ms. Doheny testified the deposit slip that

indicated $2,900.83 had been placed into Family Dollar’s account, allegedly

on July 14, 2011, did not appear to be genuine. Ms. Doheny stated that, not

only did the deposit slip appear to be doctored from an earlier deposit, but

also the deposit slip indicated it was from a cash box that was not working

on July 14, 2011. Thus, Ms. Doheny gave additional testimony that showed

Appellant did not make a deposit of $2,900.83 on July 14, 2011, as he had

claimed. (See N.T. Trial at 64-69.) Thus, the admission of Ms. Doheny’s

limited testimony regarding the surveillance videos, if error, was harmless;

and, beyond reasonable doubt it did not contribute to the verdict.       See

Mitchell, supra at 280, 839 A.2d at 214-15.

     Moreover, other properly admitted evidence at trial overwhelmingly

established Appellant’s guilt of theft by failure to dispose of funds.   The

Commonwealth demonstrated (1) Appellant was the sole person in charge of

depositing the $2,900.83 from the day’s business of July 10, 2011 into

Family Dollar’s corporate PNC account; (2) a specific cash deposit was not

placed in Family Dollar’s Corporate Banking account or received by PNC


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Bank; (3) an internal investigation revealed the $2,900.83 missing from the

appropriate account, was not the bank’s fault or the fault of one of its

employees, and the amount in question was not received or deposited into

any other PNC account; and (4) after learning of the investigation, Appellant

offered a deposit receipt for the amount of $2,900.83, which proved to have

been fabricated.    In reviewing previous deposits from Family Dollar, Ms.

Doheny was able to determine that a true deposit had been made at the

exact time, with the exact sequence number and by the same cash deposit

box a month earlier than purported on the proffered receipt.          Thus, the

Commonwealth’s       properly   admitted   and   uncontradicted    evidence    of

Appellant’s guilt was sufficient to support the verdict.      In fact, the jury

acquitted Appellant of three of the theft counts and convicted him only of the

one associated with the fake deposit slip.       Especially in light of the final

outcome at trial, any prejudicial effect of the testimony at issue was so de

minimus by comparison that it could not have contributed to the jury’s

verdict.   See Passmore, supra.      Given the relevant law and the facts of

this case, I see absolutely no need for a new trial.

      Additionally, I think we should address Appellant’s argument that the

evidence was insufficient to support his conviction on the one count of theft

by failure to make a required disposition of funds received. In so doing, I

observe:

           The standard we apply in reviewing the sufficiency of the
           evidence is whether viewing all the evidence admitted…in

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         the light most favorable to the verdict winner, there is
         sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder.           In
         addition, we note that the facts and circumstances
         established by the Commonwealth need not preclude every
         possibility of innocence.      Any doubts regarding a
         defendant’s guilt may be resolved by the fact-finder 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. The Commonwealth may sustain
         its burden of proving every element of the crime beyond a
         reasonable doubt by means of wholly circumstantial
         evidence. Moreover, in applying the above test, the entire
         record must be evaluated and all evidence actually
         received must be considered. Finally, the [trier] of fact
         while passing upon the credibility of witnesses and the
         weight of the evidence produced, is free to believe all, part
         or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super. 2011), appeal

denied, 613 Pa. 642, 32 A.3d 1275 (2011) (quoting Commonwealth v.

Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)).

      Theft by failure to make a required disposition of funds received is

defined in relevant part as follows:

         §   3927.     Theft by failure to         make     required
               disposition of funds received

         (a) Offense defined.─A person who obtains property
         upon agreement, or subject to a known legal obligation, to
         make specified payments or other disposition, whether
         from such property or its proceeds or from his own
         property to be reserved in equivalent amount, is guilty of
         theft if he intentionally deals with the property obtained as
         his own and fails to make the required payment or
         disposition. The foregoing applies notwithstanding that it
         may be impossible to identify particular property as


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         belonging to the victim at the time of the failure of the
         actor to make the required payment or disposition.

18 Pa.C.S.A. § 3927(a). This offense has four elements:

         1) the obtaining of the property of another; 2) subject to
         an agreement or known legal obligation upon the receipt to
         make specified payments or other disposition thereof; 3)
         intentional dealing with the property obtained as the
         defendant’s own; and 4) failure of the defendant to make
         the required disposition of the property.

Commonwealth v. Morrissey, 540 Pa. 1, 8, 654 A.2d 1049, 1052 (1995).

      Here, in addition to Ms. Doheny’s testimony, the Commonwealth also

introduced the testimony of Mr. McDonald, the Loss Prevention Director at

Family Dollar at the time of Appellant’s employment. Mr. McDonald testified

at trial: (1) he was asked to conduct an investigation for the Penn Hills

Family Dollar in September 2011, regarding missing deposits; (2) he

reviewed the store’s deposit logs and saw Appellant’s signature was located

next to a deposit of $2,900.83 that he claimed he made at PNC on July 14,

2011; he further testified, however, that he spoke with Family Dollar’s

corporate office and verified that this deposit was never received; he then

interviewed Appellant, who admitted he was responsible for the July 14,

2011 deposit and signed off on it in the logbook after he made the deposit at

the   bank;   Appellant   also   gave    Mr.     McDonald   a   written   statement

corroborating what Appellant had told Mr. McDonald; (3) he examined the

deposit slip from July 14, 2011, and determined it was altered from a

previous deposit slip because the sequence number and other information


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Appellant provided actually corresponded to another deposit made the

previous month (June 7, 2011); (4) he verified that the store managers

were not permitted to keep the nightly deposits.       (See N.T. Trial, 3/17-

18/14, at 24-62.)

      The Commonwealth also presented the testimony of Detective Joseph

Blaze from the Penn Hills Police Department who conducted an outside

investigation in 2011.     Detective Blaze said he interviewed Appellant

regarding the missing deposits, and Appellant acknowledged that on July 14,

2011, he had the $2,900.83, which he took to PNC to deposit. (See id. at

81-82.) Detective Blaze stated Appellant had no explanation as to why the

money was missing. (Id. at 81-84).

      Viewed in the light most favorable to the Commonwealth as verdict

winner, I am certain the evidence was sufficient to sustain the jury’s verdict.

See Morrissey, supra; Hansley, supra; 18               Pa.C.S.A. §    3927(a).

Therefore, I would affirm Appellant’s judgment of sentence. Accordingly, I

dissent.




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