J-S70024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA


                       v.

DAVID M. COOK

                            Appellant                No. 3598 EDA 2015


           Appeal from the Judgment of Sentence November 2, 2015
                In the Court of Common Pleas of Bucks County
             Criminal Division at No(s): CP-09-CR-0003466-2015


BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                         FILED NOVEMBER 17, 2016

        David M. Cook appeals from the judgment of sentence imposed on

November 2, 2015, in the Bucks County Court of Common Pleas. The trial

court sentenced Cook to an aggregate term of 15 to 24 months’

incarceration following his jury conviction of simple assault, harassment and

disorderly conduct1 for punching his girlfriend in her face. On appeal, Cook

challenges an evidentiary ruling and the weight of the evidence supporting

his convictions. For the reasons that follow, we affirm.

        The facts underlying Cook’s convictions are summarized by the trial

court as follows:


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1
    See 18 Pa.C.S. §§ 2701(a)(1), 2709(a)(1), and 5503(a)(1), respectively.
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              The incident underlying [Cook’s] convictions occurred on
       February 6, 2014, at approximately 5:30 p.m., at a Sunoco gas
       station in Warminster Township, Bucks County. [Cook] was at
       that gas station when his girlfriend, Kristin Ricci, arrived in a
       separate vehicle with their three-year-old daughter and her
       seven-year-old son from a prior relationship. During the course
       of a loud argument between [Cook] and Ms. Ricci, [Cook]
       reached into Ms. Ricci’s car and punched her in the mouth,
       splitting her lip. He then fled the scene at a high rate of speed.

Trial Court Opinion, 4/18/2016, at 1. Ricci made a 911 call at the scene and

stated her daughter’s father had punched her in the face. She also provided

a corroborating written statement to police.              Cook was subsequently

arrested and charged with aforementioned offenses.

       However, at both Cook’s preliminary hearing and jury trial, Ricci

denied Cook had hit her. Rather, she stated she was on medication and got

in a heated argument with Cook. She claims that when Cook attempted to

prevent her from leaving with the children, she put the car in reverse and

slammed her foot on the gas pedal, hitting a snow bank and cutting her lip

when her face hit the steering wheel.            See N.T., 8/25/2015, at 110-111,

113. She also declared she lied to police when she told them Cook hit her.2

       On August 26, 2015, a jury returned a verdict of guilty on all charges.

The next day, the trial court sentenced Cook to a term of one to two years’

imprisonment for simple assault, and a consecutive 90 days’ imprisonment

____________________________________________


2
  At Cook’s trial, Ricci also admitted she and Cook were engaged. See N.T.,
8/25/2015, at 100. The Commonwealth presented her 911 call and her
written statement, both implicating Cook, to impeach her testimony. See
id. at 160-162, 169.



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for   disorderly conduct.3         Cook filed    a timely   post-sentence   motion

challenging the weight of the evidence, and seeking modification of his

sentence.4     On September 14, 2015, the trial court entered an order

vacating the sentence imposed, and scheduling a resentencing hearing for

November 2, 2015.5 At the resentencing hearing, the court reimposed the

same sentence for the offenses sub judice.6 This timely appeal follows.7



____________________________________________


3
  The court found the harassment offense merged with simple assault for
sentencing purposes.
4
  The same day Cook was sentenced in the present case, the trial court also
imposed sentence on a parole violation of a prior guilty plea, and a contempt
of a Protection from Abuse (PFA) order. Both prior incidents involved Ricci,
the same victim as in the present matter. See N.T., 8/27/2015, at 5, 25.
The trial court sentenced Cook to 19 months, 18 days back time for the
parole violation, and six months’ imprisonment for his contempt of the PFA
order. The court ran all of the sentences consecutively. See id. at 53.

      In his post-sentence motion, Cook asserted the aggregate sentence
was excessive, and that the consecutive sentence for the contempt finding
violated double jeopardy because it involved the same conduct as the
sentence for the crimes herein. See Post-Sentence Motions, 9/4/2015, at
¶¶ 8-19. Cook did not raise any sentencing claims on appeal.
5
 The trial court also separated the parole violation matter and directed it to
be heard by another judge. See Order, 9/14/2015.
6
   The trial court also reimposed the consecutive contempt sentence, finding
it did not violate double jeopardy. See N.T., 11/2/2015, at 12.
7
  On December 3, 2015, the trial court ordered Cook to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Cook complied with the court’s directive, and filed a concise statement on
December 21, 2015.



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      In his first issue, Cook argues the trial court’s ruling permitting a

police officer to testify regarding her observations of Cook’s actions on the

gas station store surveillance video violated the “best evidence rule.” See

Cook’s Brief at 12.      Our review of an evidentiary challenge is well-

established:

      The admission of evidence is solely within the discretion of the
      trial court, and a trial court’s evidentiary rulings will be reversed
      on appeal only upon an abuse of that discretion.” An abuse of
      discretion will not be found based on a mere error of judgment,
      but rather occurs where the court has reached a conclusion that
      overrides or misapplies the law, or where the judgment
      exercised is manifestly unreasonable, or the result of partiality,
      prejudice, bias or ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (internal

citations omitted), cert. denied, 2016 WL 3059357 (U.S. Oct. 3, 2016).

      The “best evidence rule” is codified in the Pennsylvania Rules of

Evidence. Specifically, Rule 1002 requires a party to introduce “[a]n original

writing, recording, or photograph … in order to prove its content[.]” Pa.R.E.

1002. However, Rule 1004 provides an exception to the general rule when,

inter alia, “all the originals are lost or destroyed, and not by the proponent

acting in bad faith[.]” Pa.R.E. 1004(a). As this Court has explained: “If the

originals are not available at trial in criminal cases, through no fault of the

Commonwealth, secondary evidence is permissible.”          Commonwealth v.

Dent, 837 A.2d 571, 589 (Pa. Super. 2003), appeal denied, 863 A.2d 1143

(Pa. 2004).




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      In the present case, Warminster Township Police Officer Renee Fox

testified that she arrived at the gas station shortly after the 911 call, and

attempted to obtain video surveillance footage of the incident.      See N.T.,

8/26/2015, at 10, 17. Officer Fox explained that although she tried to copy

the footage onto a flash drive,

      I apparently, didn’t export it properly or the system needed
      something else or it wasn’t working, or my flash drive wasn’t
      working and it wasn’t on my flash drive when I got back to the
      station.

Id. at 20. Moreover, while Officer Fox was aware video surveillance tapes

are stored for only a short period, typically less than 48 hours, she admitted

she did not attempt to secure another copy until a few weeks prior to trial.

See id. at 34, 35.     At that point, she learned the video was no longer

available. See id. at 36. Nevertheless, the trial court permitted Officer Fox

to testify as to what she observed on the video. See id. at 21-23.

      Cook asserts the trial court erred in permitting Officer Fox to testify

regarding the contents of the missing surveillance footage. He maintains the

officer’s “attempts to secure the surveillance footage were unsatisfactory”

and she provided no explanation why she failed to return to the station to

preserve the footage until a year later.   Cook’s Brief at 13, 14.    Further,

Cook contends the court’s erroneous admission of Officer Fox’s testimony

was not harmless error because the officer’s description of Cook’s actions on

the video as a “punch” was directly relevant to Cook’s “mental state for the

crime charged.”      Id. at 14.     Cook asserts this Court’s decision in


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Commonwealth v. Lewis, 623 A.2d 355 (Pa. Super. 1994), is controlling.

We disagree.

      In Lewis, supra, the defendant was arrested after he and a cohort

attempted to steal a “walkman” from a Sears Department store.          A store

security guard, who observed their actions, apprehended the two as they left

the store. See id. at 356-357. At trial, and over the defendant’s objection,

the responding police officer testified regarding his observations of the

defendant as recorded on a store security camera.         The actual recording,

however, was not presented as evidence. See id.

      On appeal, a panel of this Court held the officer’s testimony, absent

introduction of the video itself, violated the best evidence rule.

      We find that the facts in the instant case present the same type
      of circumstances which the best evidence rule was designed to
      guard against: a witness is attempting to testify regarding the
      contents of a videotape when the tape itself has not been
      admitted into evidence.      The need to secure the original
      evidence itself, in order to insure that the contents of the
      evidence be given the proper weight, is apparent in this case.
      Thus, the best evidence rule should apply, in order to prevent
      any mistransmission of the facts surrounding Appellant’s acts in
      the Sears store which might mislead the jury.

Id. at 358. Furthermore, the panel found the explanation provided for the

unavailability of the videotape was unsatisfactory, namely, that the tapes

were stored in the basement of the Sears store and the classification system

was “imprecise.” Id. at 359. Lastly, the panel concluded the admission of

the officer’s testimony was not harmless error. The panel explained:

      [W]e have determined that the properly admitted testimony of
      security guard Stephen Fee does not demonstrate that Appellant

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      knew that his companion Lohnes placed the radio in his
      (Lohnes’) coat. Therefore, without Officer Barclay’s testimony,
      the remaining evidence is not so overwhelming to have resulted
      in a conviction absent Barclay’s testimony. Nor is Barclay’s
      testimony of a cumulative nature in regard to the other
      admissible evidence; rather, it is contradictory to Fee’s
      testimony, since Barclay’s testimony permits the inference that
      Appellant knew what his companion was doing.

Id.

      We find the facts in the present case distinguishable from Lewis.

Pursuant to Rule 1004, other evidence of the contents of a video recording is

admissible when, inter alia, the original is lost or destroyed “unless the

proponent lost or destroyed [it] in bad faith[.]” Pa.R.E. 1004(1). In Lewis,

the panel found the explanation for the unavailability of the original

surveillance tape “unsatisfactory.” Lewis, supra, 623 A.2d at 359. There

was no evidence the tape was lost or destroyed; the security guard simply

testified he was unable to locate the tape because the classification system

was “imprecise.”   Id.   Here, however, there is no dispute the surveillance

video was unavailable at the time of trial.    See N.T., 8/26/2015, at 36.

Further, the trial court found Officer Fox attempted to secure a copy of the

footage but “due to a malfunction somewhere in the process, the file had

not, in fact, successfully downloaded or was for some other reason not

retrievable.” Trial Court Opinion, 4/18/16, at 4. The court opined: “[I]t is

clear that the Commonwealth did not act in bad faith in failing to preserve

the video surveillance recording.” Id. at 4-5 (footnote omitted). We find no

reason to disagree.



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     Nevertheless, even if we were to conclude the trial court erred in

permitting Officer Fox’s testimony regarding what she viewed on the video

surveillance footage, we would find the error was harmless.

     Harmless error exists if the record demonstrates either: (1) the
     error did not prejudice the defendant or the prejudice was de
     minimis; or (2) the erroneously admitted 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 was so
     insignificant by comparison that the error could not have
     contributed to the verdict.

Commonwealth v. Hairston, 84 A.3d 657, 671–672 (Pa. 2014) (quotation

omitted), cert. denied, 135 S. Ct. 164 (U.S. 2014).    “The Commonwealth

has the burden of proving harmless error beyond a reasonable doubt.”

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015), cert.

denied, 2016 WL 3032734 (U.S. Oct. 3, 2016).

     In Lewis, the panel found the error in admitting the officer’s

testimony was not harmless because the testimony of the security guard,

who witnessed the incident first-hand, did not definitively establish the

defendant’s culpability. See Lewis, supra, 623 A.2d at 359. Conversely,

here, three disinterested eyewitnesses testified they observed Cook punch

Ricci, while she was seated in her car, after which he immediately fled the

scene.   See N.T., 8/25/2015, at 49 (James Evanitsky); 83-84 (Craig

Schermerhorn); N.T., 8/26/2015, at 47-48 (Dana Martin).        Officer Fox’s

description of the events she observed on the surveillance video did not, in

any way, deviate from the account provided by the eyewitnesses. See N.T.,

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8/26/2015, at 21-23. Accordingly, we find any error on the part of the trial

court in permitting Officer Fox to testify about her observations of the

surveillance footage was cumulative of the properly admitted evidence, and

harmless beyond a reasonable doubt. See Dent, supra, 837 A.2d at 590

(officer’s testimony regarding his observations of defendant on surveillance

video, which was not available at the time of trial, was “cumulative of

[eyewitness’s] properly admitted identification testimony.”)        Therefore,

Cook is entitled to no relief on his first claim.

       In his second issue, Cook challenges the weight of the evidence

supporting his convictions. When a defendant challenges the weight of the

evidence, he “concedes that the evidence is sufficient to sustain the verdict,

but seeks a new trial on the ground that the evidence was so one-sided or

so weighted in favor of acquittal that a guilty verdict shocks one’s sense of

justice.” Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert.

denied, 134 S.Ct. 1792 (U.S. 2014). Our review of a weight claim is well-

established:8

       The weight of the evidence is a matter exclusively for the finder
       of fact, who is free to believe all, part, or none of the evidence
       and to determine the credibility of the witnesses. A new trial is
       not warranted because of “a mere conflict in the testimony” and
____________________________________________


8
  We note Cook properly preserved his weight of the evidence claim in his
post-sentence motion. See Pa.R.Crim.P. 607(A)(1). Although the record
does not reflect that the trial court specifically denied the motion, the court
did address this issue in its Pa.R.A.P. 1925(a) opinion. See Trial Court
Opinion, 4/18/2016, at 2-4.



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      must have a stronger foundation than a reassessment of the
      credibility of witnesses. Rather, the role of the trial judge is to
      determine that notwithstanding all the facts, certain facts are so
      clearly of greater weight that to ignore them or to give them
      equal weight with all the facts is to deny justice. On appeal, our
      purview is extremely limited and is confined to whether the trial
      court abused its discretion in finding that the jury verdict did not
      shock one’s conscience. Thus, appellate review of a weight claim
      consists of a review of the trial court’s exercise of discretion, not
      a review of the underlying question of whether the verdict is
      against the weight of the evidence. An appellate court may not
      reverse a verdict unless it is so contrary to the evidence as to
      shock one’s sense of justice.

Commonwealth v. Rosser, 135 A.3d 1077, 1090 (Pa. Super. 2016) (en

banc), quoting Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa.

Super. 2015), appeal denied, 125 A.3d 1196 (Pa. 2015) (citations omitted).

      The trial court addressed Cook’s weight of the evidence claim as

follows:

             Despite Ms. Ricci’s testimony that [Cook] did not punch
      her, the Commonwealth called three eyewitnesses who testified
      that [Cook] did, in fact, assault Ms. Ricci. James Evanitsky
      testified that he was at the gas station getting gas and that,
      while there, he saw [Cook] punch Ms. Ricci in the face. Craig
      Schermerhorn testified that he had stopped at the gas station to
      get a snack for his son at the Sunoco Mini-Mart. He testified
      that he heard [Cook] yelling at Ms. Ricci and then saw him
      punch her in the face. Dana Martin testified that she arrived at
      the gas station with Mr. Schermerhorn and that she too saw
      [Cook] punch Ms. Ricci. In addition, Warminster Township Police
      Officer Renee Fox testified that she reviewed a video digital
      recording of the incident on the Sunoco station surveillance
      system. She testified that the recording showed [Cook] open
      the driver’s side door of Ms. Ricci’s car and punch her in the
      face. Photographs of the injury to Ms. Ricci’s mouth, taken by
      police on the night of this incident, were admitted at trial. The
      Commonwealth also introduced statements made by Ms. Ricci at
      the scene. Although Ms. Ricci testified at trial that she was not
      assaulted, she admitted that she called 911 from her vehicle
      while she was still at the gas station and reported that “my

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      daughter’s father punched my face, my mouth is split open.” A
      recording of the 911 call was admitted into evidence. Mr. Ricci
      also admitted executing and signing a written statement wherein
      she wrote: “My boyfriend and I were fighting & he punched me
      in my mouth and caused my lip to split open when I tried pulling
      away from him in my car. He then got into his car & sped off.”
      That written statement was also admitted into evidence.

             As finders of fact, the jury was free to reject Ms. Ricci’s in-
      court testimony and find [Cook] guilty based on the testimony of
      three impartial eyewitnesses, Officer Fox’s description of the
      surveillance video and Ms. Ricci’s statements to 911 and police,
      all of which were consistent in establishing that [Cook] reached
      into Ms. Ricci’s vehicle and punched her in the face. The jury’s
      verdict cannot be said to be “so contrary to the evidence that it
      shock’s one’s sense of justice.”            [Commonwealth v.]
      Rakowski, 987 A.2d [1215, 1219 (Pa. Super. 2010), appeal
      denied, 9 A.3d 629 (Pa. 2010)]. Therefore, the verdict was not
      against the weight of the evidence.

Trial Court Opinion, 4/18/2016, at 2-4 (footnotes omitted).

      Cook’s argument concerning the weight of the evidence focuses solely

on Ricci’s testimony that Cook did not punch her, but rather, she hit her face

on the steering wheel when she reversed into a snow bank.            See Cook’s

Brief at 16-17.   He emphasizes that Ricci’s trial testimony was consistent

with her testimony at his preliminary hearing, and her version of the events

in a letter she wrote to the magisterial district justice shortly before that

hearing.    Id. at 17.     Accordingly, he contends “Ms. Ricci’s consistent

testimony shows that the jury’s verdict was manifestly against the weight of

the evidence.” Id.

      We conclude Cook has failed to establish the trial court abused its

discretion in determining the verdict was not against the weight of the

evidence.     See Rossner, supra.          We remind Cook that credibility


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determinations are within the sole province of the fact finder. See id. Here,

Ricci, despite her later recantations, told the police immediately following the

incident that Cook punched her in the face.            Her initial report was

corroborated by three disinterested witnesses who saw the events unfold.

Further, Ricci admitted during cross-examination that Cook had previously

pled guilty to simple assault for pushing her into a wall in February of 2013.

See N.T., 8/25/2015, at 181-185. We find no basis to disagree with the trial

court’s assessment that the jury’s verdict, and its concomitant credibility

determinations, did not shock the conscience.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2016




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