J-S63018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CURTIS ROBERT MOYER

                            Appellant                 No. 254 MDA 2014


              Appeal from the Judgment of Sentence July 29, 2013
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0008594-2012


BEFORE: BOWES, J., PANELLA, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 06, 2014

        Appellant, Curtis Robert Moyer, appeals from the judgment of

sentence entered July 29, 2013, in the Court of Common Pleas of York

County. We affirm.

        Robert Holjes parked his car and entered a Giant supermarket. While

shopping he was paged to see the store manager. The store manager took

Holjes outside to the parking lot and showed him damage to his car. There

was damage to the driver’s side door, to the panel under that door, and to

the hood of the car. The manager informed Holjes that the store had

security cameras and permitted him to watch a segment of the surveillance


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
    Retired Senior Judge assigned to the Superior Court.
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video. Holjes left the store, but returned later to canvas the area for the

suspect.

     Eventually he located a man, later identified as Moyer, and asked him

if he recognized his car. Moyer said he did, responding that he had earlier

been sitting on it in the parking lot of the nearby supermarket. To Holjes,

Moyer did not “seem completely coherent” and Holjes offered to drive him to

the police station. N.T., Trial, 4/1-2/13, at 125. Moyer declined the ride to

the police station, but agreed to drive to Giant where Holjes took Moyer to

the store manager.

     The manager called the police. To Officer Michael Bennage, Moyer

seemed to be in “an altered state of reality,” looked “disheveled,” his pants

were soaked, and he was holding a rolled newspaper up to his one eye. Id.,

at 131, 138. Officer Bennage asked Moyer why he thought the police were

there and Moyer responded because of what he did to the car—that he sat

on the car, repeatedly, and pushed a shopping cart into its driver’s side

door. Officer Bennage arrested Moyer.

     The police never obtained the security camera footage. Officer

Bennage was under the impression that another officer at the scene, Officer

William Buzzard, requested the footage from the store. When the footage

failed to arrive at the police department, Officer Bennage never followed up

with the store, and the loss prevention officer at the store never contacted

the police department. Officer Buzzard acknowledged that there was a


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failure to request the footage due to a miscommunication between him, the

police department and the store, but that when he left the store that night

he thought someone had requested the footage. He explained:

        Within our police department, we have a system of checks and
        balances to make sure that that’s followed up with [i.e.,
        obtaining the footage], and I do take responsibility for not
        having the video. It was a – an error on my part that I didn’t get
        it. I was under the impression I was going to get it, and the
        system of checks and balances that we used also failed, and we
        just don’t have it.

Id., at 141. The footage, stored on a 30-day loop, was eventually copied

over.

        Prior to trial, with the surveillance footage irretrievably lost, the

Commonwealth filed a motion in limine seeking to admit oral testimony as to

what Officer Buzzard and the store manager observed on the footage. The

trial court held a hearing on the matter and ruled, citing Rule 1004 of the

Pennsylvania Rules of Evidence, that it would permit the testimony as the

Commonwealth did not act in bad faith and the footage was irretrievably

lost.

        The matter proceed to a jury trial. Officer Buzzard and the store

manager testified as to what they observed on the surveillance footage, and

the jury convicted Moyer of criminal mischief and found him not guilty of

public drunkenness. The trial court sentenced Moyer to time served to 23

months’ incarceration.




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      Moyer filed a timely post-sentence motion, and then a notice of appeal

on February 6, 2014. On May 14, 2014, this Court ordered Moyer to show

cause why this appeal should not be dismissed. On May 21, 2014, Moyer

filed an answer indicating he had filed a praecipe in the trial court for entry

of an order denying the post-sentence motion by operation of law. On the

same day, the trial court entered an order denying the post-sentence motion

by operation of law.

      Preliminarily, we must first determine whether this appeal is properly

before us. Rule 905 of the Pennsylvania Rules of Appellate Procedure

provides, that “[a] notice of appeal filed after the announcement of a

determination but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5).

      Before entry of the May 21, 2014 order denying Moyer’s post-sentence

motion by operation of law, his February 6, 2014 notice of appeal would

have been premature. See Commonwealth v. Claffey, 80 A.3d 780, 783

(Pa. Super. 2013) (appeal filed while timely post-sentence motions are

pending may be premature). See also Pa.R.Crim.P. 720, Note. Because the

trial court subsequently entered the final order, however, we will treat the

notice of appeal as filed on May 21, 2014. We proceed to the merits.

      On appeal, Moyer maintains that the trial court erred in not applying

Rule 1002 of the Pennsylvania Rules of Evidence, commonly known as the

Best Evidence Rule. See Appellant’s Brief, at 4.


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      Our standard of review is as follows.

             In evaluating the denial or grant of a motion in limine, our
      standard of review is well-settled. When ruling on a trial court’s
      decision to grant or deny a motion in limine, we apply an
      evidentiary abuse of discretion standard of review. A trial court
      has broad discretion to determine whether evidence is
      admissible, and a trial court’s 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. If the
      evidentiary question is purely one of law, our review is plenary.

Commonwealth v. Belani, ___ A.3d ___, ___, 2014 WL 4748045, *3 (Pa.

Super., filed September 25, 2014) (citations and quotation marks omitted).

      The Best Evidence Rule 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.” Pa.R.E. 1002. Rule 1004, which the trial court relied on, is a rule

that provides otherwise. That rule states that “[a]n 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[.]” Pa.R.E. 1004(a).

      The trial court found that secondary evidence was admissible, under

Rule 1004, as the surveillance footage was irretrievably lost and the

Commonwealth did not act in bad faith. It is undisputed that the surveillance




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footage is irretrievably lost. The admission of the secondary evidence turns

on whether the Commonwealth, through the police, acted in bad faith. 1

        “Bad faith” is defined as “[d]ishonesty of belief or purpose[.]” BLACK’S

LAW DICTIONARY 149 (8th ed. 2004). The testimony established that the police

simply failed to timely request the footage. As Officer Buzzard explained it,

“the system of checks and balances failed.” The trial court found that the

Commonwealth did not act in bad faith. We agree. This is negligence, not

bad faith. See, e.g., Montoya v. Romero, 956 F.Supp.2d 1268, 1280

(D.N.M. 2013) (“[N]egligent destruction of the original or the possibility that

the proponent tampered with the secondary evidence is likely insufficient for

bad faith—the purposeful destruction or withholding of original[s] ... and the

fabrication of secondary evidence will support a finding of bad faith.”)

(internal quotation marks omitted).2

        Unfortunately, this negligence led to the destruction of the evidence.

But as the Commonwealth did not act in bad faith we cannot find that the

trial court abused its discretion in admitting the secondary evidence in the
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1
  Moyer relies heavily on Commonwealth v. Ware, 623 A.2d 355 (Pa.
Super. 1993), which dealt solely with the application of the old common law
Best Evidence Rule and no exceptions thereto. The Best Evidence Rule was
codified in the Rules of Evidence in 1998 and while the “rule corresponds to
the common law,” Pa.R.E. 1002 Comment, also codified was Rule 1004,
which specifically provides for the admissibility of other secondary evidence.
Ware is simply inapposite.
2
    “This rule is identical to F.R.E. 1004.” Pa.R.E. 1004 Comment.




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form of the testimony of Officer Buzzard and the store manager. See 1

WEST’S PA. PRAC., EVIDENCE § 1004-1 (4th ed.) (“If presentation of the original

is excused under this rule, the proffering party may offer any available

evidence of the content of the original.”); United States v. Ross, 33 F.3d

1507, 1513 (CA 11 1994) (“Once the terms of Rule 1004 are satisfied, the

party    seeking    to   prove     the   contents   of   the   recording—here,   the

government—may do so by any kind of secondary evidence.”).3

        Judgment of sentence affirmed.

        Judge Bowes joins in the memorandum.

        Judge Platt concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/6/2014

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3
  Moyer argues, “[w]ithout the video there was no effective way for the
Commonwealth to establish Moyer’s intent.” Appellant’s Brief, at 12. But
there was. That evidence came from the secondary evidence of the
testimony of Officer Buzzard and the store manager explaining what they
observed in the video. See, e.g., N.T., Trial, 4/1-2/13, at 148 (store
manager noting that Moyer laid on the hood of the car and took a shopping
cart and “then pushed [it] into the yellow Honda[]”); id., at 156 (Officer
Buzzard noting that Moyer “reared back and shoved the cart forcefully into
the car[]”). Moyer had the opportunity to cross-examine both of these
witnesses.



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