J-S48002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                      v.

CAMEO WITHERSPOON

                            Appellant                      No. 94 WDA 2014


           Appeal from the Judgment of Sentence August 29, 2013
             In the Court of Common Pleas of Allegheny County
            Criminal Division at No(s): CP-02-CR-0006392-2011
                                        CP-02-CR-0011704-2013


BEFORE: PANELLA, J., DONOHUE, J., and WECHT, J.

MEMORANDUM BY PANELLA, J.                            FILED OCTOBER 26, 2015

       Appellant,   Cameo      Witherspoon,   appeals   from      the   judgment   of

sentence entered after a jury convicted him of robbery and conspiracy and

the trial court convicted him of illegal possession of a firearm. We conclude

that   police   officers’   testimony   regarding   what   they    observed   on   a

surveillance video, which was displayed to the jury and the trial court, did

not violate the Pennsylvania Rules of Evidence. Further, Witherspoon’s claim

that the verdict was against the weight of the evidence is waived, as it was

not included in his court-ordered Rule 1925(b) statement.               We therefore

affirm.

       The Commonwealth charged Witherspoon with robbing a travelling

tattoo artist in conjunction with an accomplice.            Witherspoon and his
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accomplice waited for the victim in an apartment building’s staircase. As the

victim reached the second floor landing, Witherspoon’s accomplice grabbed

the victim from behind and placed the victim in a full-nelson hold.

      Witherspoon then approached the victim from the first floor stairs, and

placed shotgun to the victim’s head, saying, “It’s not worth it, cuz.”

Witherspoon proceeded to search the victim, taking the victim’s cell phone,

knife, and $120.00 in cash. Witherspoon and his accomplice then ran from

the apartment building.

      The robbery was caught on the building’s surveillance camera. Police

officers reviewed the video and identified Witherspoon as the man holding

what appeared to be a shotgun. They then provided the victim with a photo

array including a photo of Witherspoon, and the victim immediately

identified Witherspoon.

      Police arrested Witherspoon, and he was brought to trial on the

aforementioned charges.     At trial, Witherspoon conceded that he was the

man in the video, but denied that he was carrying a shotgun. In contrast,

Detective Jeffrey Wingard opined that he believed Witherspoon was carrying

a shotgun.    At the close of testimony, the jury convicted Witherspoon of

robbery and criminal conspiracy, while the trial court convicted him of illegal

possession of a firearm.




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      After the trial court sentenced Witherspoon to a period of confinement

of 7.5 to 15 years, Witherspoon filed post-sentence motions. The trial court

denied his motions, and this timely appeal followed.

      On appeal, Witherspoon seeks to raise two issues for our review.

First, that the trial court erred in permitting Detective Wingard to testify to

his opinion of what the surveillance video showed.       Second, Witherspoon

argues that the trial court erred in not granting a new trial as the verdicts

were against the weight of the evidence at trial.       We will address these

issues in order.

      Witherspoon’s first issue asks us to review the trial court’s ruling on

the admissibility of evidence.

      We evaluate the trial court’s determinations regarding the
      admissibility of evidence by an abuse of discretion standard.
      We will not disturb the trial court’s ruling unless that ruling
      reflects “manifest unreasonableness, or partiality, prejudice,
      bias, or ill-will, or such lack of support as to be clearly
      erroneous.”

Commonwealth v. Einhorn, 911 A.2d 960, 972 (Pa. Super. 2006)

(citations omitted).

      Witherspoon splits his first issue into two separate arguments. First,

he contends that Detective Wingard’s testimony was impermissible expert

testimony from a witness that was not qualified as an expert. Pennsylvania

Rule of Evidence 701 provides that “[i]f a witness is not testifying as an

expert, testimony in the form of an opinion is limited to one that is rationally

based on the witness’s perception, helpful to clearly understand the

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witness’s testimony or a fact in issue, and not based on scientific, technical,

or other specialized knowledge[.]”      Pa.R.E., Rule 701(a)-(c).    Thus, lay

opinion testimony is admissible if it is rationally based on the perception of

the witness and helps a fact-finder reach a clear understanding of the

witness’s testimony. See Deeds v. University of Pennsylvania Medical

Center, 110 A.3d 1009, 1018 (Pa. Super. 2015). “Although the admission

of an opinion on an ultimate issue of fact does not constitute error per se, ...

if its admission would confuse, mislead, or prejudice the jury, it should be

excluded.” McManamon v. Washko, 906 A.2d 1259, 1276 (Pa. Super.

2006) (citation omitted).

      At issue here is the following portion of Detective Wingard’s testimony:

“[Y]ou have to look closely on the bigger screen because from his left hand,

especially as he rounds the building, there is something in his left hand. In

my opinion it is exactly a pistol grip shotgun and it is swinging.” N.T., Trial,

5/29-31/15, at 77.    We agree with the trial court that this testimony is

rationally based upon the perception of Detective Wingard and helpful to the

clear understanding of his testimony. It was therefore not impermissible lay

opinion testimony.

      Furthermore, the surveillance video itself was presented as evidence to

the jury and the trial court for review during Detective Wingard’s testimony.

It was played again, at the jury’s request, during deliberation. See id., at




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175.    The jury and trial court were capable of watching the video and

determining whether they agreed with Detective Wingard’s opinion.

       Finally, Detective Wingard’s testimony was not the only evidence

supporting an inference that Witherspoon brandished a shotgun during the

robbery.    The victim repeatedly testified that Witherspoon was visibly

holding a pump-action shotgun while robbing him. See id., at 40-41; 51-

52; 54.    As such, we cannot conclude that Detective Wingard’s opinion

testimony confused or misled the fact-finders, nor can we conclude that it

was unduly prejudicial to Witherspoon.

       Witherspoon’s second argument is that Detective Wingard’s testimony

violated the “best evidence” rule.       The best evidence rule, Rule 1002,

provides that “[a]n original writing, recording, or photograph is required in

order to prove its content.” Pa.R.E., Rule 1002. A primary purpose of the

rule is to “inhibit fraud because it allows the parties to examine the original

documents to detect alterations and erroneous testimony about the contents

of the document.” Id., Comment. Video surveillance footage falls within the

scope of the best evidence rule. See Commonwealth v. Lewis, 623 A.2d

355, 358 (Pa. Super. 1993).

       However,   we   conclude   that   Rule   1002   is   inapposite   to   the

circumstances of this issue.      The surveillance footage was provided to

defense counsel and presented to the finders of fact.         This satisfies the

requirements and policy underlying Rule 1002. See id. (“the best evidence


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rule was designed to guard against [] a witness … attempting to testify

regarding the contents of a videotape when the tape itself has not been

admitted into evidence”).       Defense counsel was able to cross-examine

Detective Wingard on what the video showed, and the fact-finders were

allowed to observe the video and draw their own conclusions.             Thus,

Witherspoon’s second argument against the admissibility of Detective

Wingard’s testimony merits no relief.

      In his final argument, Witherspoon contends that the trial court erred

in refusing to grant a new trial based on the weight of the evidence

presented at trial. However, Witherspoon failed to preserve this issue in his

court-ordered Rule 1925(b) statement of issues presented on appeal. As a

result, the trial court’s opinion does not address this issue, and it is waived

for purposes of appeal. See Pa.R.A.P. 1925(b)(4)(vii) (issues not included

in the statement are waived).

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/26/2015




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