J-S53042-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                 v.                            :
                                               :
                                               :
    WILLIAM DEKEYSER                           :
                                               :
                       Appellant               :   No. 3292 EDA 2018

      Appeal from the Judgment of Sentence Entered September 14, 2018
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                       No(s): CP-51-CR-0003079-2017


BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                          FILED NOVEMBER 19, 2019

        Appellant William Dekeyser appeals from the judgment of sentence

imposed following his jury trial convictions for persons not to possess firearms,

carrying a firearm without a license, carrying firearms on public streets in

Philadelphia, possessing instruments of crime, and simple assault.1 Appellant

argues that the trial court abused its discretion by allowing the jury to watch

an     altered   version   of   the    Commonwealth’s    video   evidence   during

deliberations. We affirm.

        The trial court opinion set forth the relevant facts of this appeal as

follows:

        [Appellant] pointed a loaded gun at Jervine Oates on March 13,
        2017 at about 5:30 p.m., as both men stood less than two feet
        apart from each other at the corner of 16th Street and Nedro
        Avenue. Officers Timothy McGonigle and Judith Kinniry observed
____________________________________________


1   18 Pa.C.S. §§ 6105, 6106, 6108, 907, and 2701, respectively.
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     [Appellant] pointing the gun as they travelled eastbound along
     Nedro Avenue in their marked police car. Both officers got out of
     the car, drew their weapons, announced that they were police,
     and told [Appellant] to drop the weapon. [Appellant] turned to
     look at the officers and then ran. Because [Appellant] was about
     fifty to sixty feet away from the officers, they got back into the
     car and drove to catch up to him, turning northbound on 16th
     Street, but ultimately lost sight of him after about ten seconds.

     After losing sight of [Appellant], the officers exited the car. Officer
     Kinniry noticed that people outside were pointing to where there
     was a gun on the ground, about fifteen to twenty feet away from
     where she initially saw [Appellant] pointing the gun at Mr. Oates.
     She stood by the gun to preserve the chain of custody, and
     radioed other officers for backup. Mr. Oates nervously stood
     nearby until [Appellant] was apprehended.

     Meanwhile, Officer McGonigle went into a store at the corner of
     16th and Nedro, where he knew that surveillance cameras were
     trained on that corner. By reviewing the surveillance video of
     three separate cameras, he could see [Appellant] point the gun,
     run, and enter the rear door of a property at 1602 Widener Place,
     which is at the next block north of Nedro. Officer Kinniry briefly
     asked another officer to stand by the gun, and then she entered
     the store to confirm that this was [Appellant’s] flight path. Officer
     McGonigle exited the store and told backup officers to try to
     surround the front and back entrances of 1602 Widener Place.

     Officer McGonigle then stood by the gun, as Officer Kinniry and
     another officer went to one entrance of 1602 Widener Place, and
     Officer John DeSanto and his partner went to the other entrance
     of 1602 Widener Place. The officers yelled into the property for
     [Appellant] to come out. [Appellant] told the officers that he did
     not have any guns, exited a back door or basement door of the
     property with his hands up, and was then arrested. Officer Kinniry
     testified that about ten minutes, at most, passed between the
     time that she recovered the gun and the time that [Appellant] was
     arrested.

                                  *    *    *

     DNA analysis of the gun recovered revealed that at least three
     individuals with distinct DNA profiles touched the gun. One of
     those individuals was [Appellant] and [Appellant] left most of the

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        DNA on the sample. There were no fingerprints recovered from
        the gun.

Trial Ct. Op., 4/24/19, at 2-4 (record citations and footnotes omitted).

        On April 12, 2017, the Commonwealth filed a criminal information

charging Appellant with multiple offenses related to his possession of the

firearm and assault. Appellant proceeded to a jury trial on April 2, 2018. At

trial, the Commonwealth played a recording of the surveillance videos for the

jury.

        During the Commonwealth’s case-in-chief, this evidence was
        presented in a split-screen format that compiled simultaneous
        footage from four separate surveillance cameras as a 2x2 grid.
        During deliberations, the jury asked to review this video evidence
        again. Outside of the jury’s presence, [the trial c]ourt directed
        the Commonwealth to play one video camera [angle] at a time,
        and to play only the clips from the three video cameras that
        allegedly depicted [Appellant].

Id. at 7 (record citations and footnote omitted). By showing one camera angle

at a time, the altered video appeared larger than the video shown during the

Commonwealth’s case-in-chief. Id.

        Appellant objected to the trial court’s decision to alter the format of the

video:

        [Appellant’s Counsel]: Your Honor, my basis of objection is that
        the video should be replayed in the same manner it was [played]
        for trial. [The prosecutor] could have―if he wanted to play this
        video [featuring one camera angle at a time] for the jury, he could
        have . . . done that during trial. However, . . . it didn’t happen
        that way. He played . . . the version that had three different
        videos playing at the same time. That’s the decision that the
        Commonwealth made. They can’t go back now and try to―

        THE COURT: It’s not a different video. It’s the same video.


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                                       *       *   *

       [Appellant’s Counsel]: But I’m saying they can’t . . . make
       highlights or alter the manner in which it was played for the jury.
       It’s counsel’s job and the Commonwealth’s job to present their
       evidence as clear as possible. I mean, when he presented
       evidence, he presented it in a manner that he chose to. You can’t
       look back and say I should have presented evidence differently.

N.T. Trial, 4/4/18, at 10-11. The trial court overruled Appellant’s objection.

       Shortly thereafter, the jurors entered the courtroom and the trial court

permitted them to watch the altered video. The trial court did not allow the

jurors to leave the jury box, but it did permit the jurors to stand up within the

box for a better view of the screen. After the jurors watched the altered video,

they exited the courtroom and continued deliberations.

       Ultimately, the jury convicted Appellant of the aforementioned offenses.

On September 14, 2018, the trial court sentenced Appellant to five to ten

years’ imprisonment for persons not to possess firearms.         The trial court

imposed no further penalties for the remaining convictions. Appellant timely

filed a post-sentence motion on September 24, 2018, which the trial court

denied on October 26, 2018.

       On November 13, 2018, Appellant timely filed a notice of appeal. The

trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal, which Appellant timely filed on November 20,

2018.2 The trial court filed a responsive opinion, concluding that it did not

abuse its discretion by allowing the jury to view the video evidence during
____________________________________________


2Appellant’s Rule 1925(b) statement raised three issues. However, Appellant
now presents only one of those issues for this Court’s review.

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deliberations. The trial court emphasized that “[w]hile the format of the video

presented to the deliberating jury differed from the format of the same video

played three times for the jury during trial, the enlarged single-[camera angle]

format did not distort the exhibit to the extent that it could be characterized

as ‘different’ evidence.” Trial Ct. Op. at 8 (emphasis in original). Moreover,

the trial court determined that any error was harmless. See id. at 9-10.

      Appellant now raises one issue for our review:

      Did not the [trial] court abuse its discretion in permitting the jury
      to view a magnified version of a video clip during deliberations,
      where the video had not been magnified when it was shown during
      the trial and admitted into evidence?

Appellant’s Brief at 3.

      Relying on Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super.

1999), Appellant argues that a deliberating jury may only review trial exhibits

“in the same manner as [the exhibits] were presented during trial.” Id. at

12.   In the instant case, Appellant contends that “the video shown to the

deliberating jurors was shown in an altered and magnified format.” Id. at 11.

Because of the altered format, Appellant asserts that video was fundamentally

different from the video shown to the jury during the Commonwealth’s case-

in-chief. Id. Further, Appellant insists that the trial “court’s conscious object

was to have the jury review the evidence in a different manner from the

manner in which the evidence was initially presented at trial.”       Id. at 12

(emphasis in original). Under these circumstances, Appellant maintains that




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“it was an abuse of discretion for the [trial] court to order the videos replayed

for the jury in magnified form.” Id. at 16.

      Our review is informed by Pa.R.Crim.P. 646, which states:

             (A) Upon retiring, the jury may take with it such exhibits as
      the trial judge deems proper, except as provided in paragraph (C).

                                     *    *     *

               (C) During deliberations, the jury shall not be permitted to
      have:

               (1) a transcript of any trial testimony;

            (2) a copy of any written or otherwise recorded confession
      by the defendant;

               (3) a copy of the information or indictment; and

            (4) except as provided in paragraph (B), written jury
      instructions.

Pa.R.Crim.P. 646(A), (C); see also Commonwealth v. Morton, 774 A.2d

750, 753 (Pa. Super. 2001) (holding the trial court did not violate the prior

version of Rule 646 where, during deliberations, the jury was placed in the

jury box, permitted to review a written confession briefly, not permitted to

deliberate while in the jury box, and given a cautionary instruction).

      “Whether an exhibit should be allowed to go out with the jury during its

deliberation     is   within   the   sound     discretion   of   the   trial   judge.”

Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012) (citations

omitted).

      We point out that the trial is the forum for finding truth. The jury’s
      deliberations represent the process by which the fact finders

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      establish what they believe to be true. For policy reasons, where
      materials inform a jury and aid it in the difficult task of
      determining facts, the jury should be permitted to study those
      materials during its deliberations.

Commonwealth v. Strong, 836 A.2d 884, 886 (Pa. 2003) (citation and

emphasis omitted).

      “The underlying reason for excluding certain items from the jury’s

deliberations is to prevent placing undue emphasis or credibility on the

material, and de-emphasizing or discrediting other items not in the room with

the jury.” Barnett, 50 A.3d at 194 (citations omitted). “If there is a likelihood

the importance of the evidence will be skewed, prejudice may be found; if not,

there is no prejudice per se and the error is harmless.” Id. (citations omitted).

“Under this doctrine, an error may be harmless where the properly admitted

evidence of guilt is so overwhelming and the prejudicial effect of the error is

so insignificant by comparison that it is clear beyond a reasonable doubt that

the error could not have contributed to the verdict.” Strong, 836 A.2d at 887

(citation and quotation marks omitted).

      In Lilliock, “both parties used a [video] presenter, a video machine that

enlarges a regular photograph on a video monitor, to assist them in presenting

photographic evidence to the jury.”         Lilliock, 740 A.2d at 243.        During

deliberations,   the   jury   did   not   have   access   to   a   video   presenter.

Consequently, the trial court allowed the jury to use a magnifying glass to

review the photographs during deliberations.

      On appeal, the appellant argued that the jury’s use of the magnifying

glass violated a prior version of Rule 646. The Lilliock Court disagreed:

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        The expert witnesses relied upon an examination of the
        photograph during their testimony, and the Commonwealth
        presented the evidence via the video presenter. The magnifying
        lens was used by the jury to view the photographs in the same
        manner as they were presented during trial. This procedure
        assisted the jury in its truth-determining process. Thus, we
        conclude that the trial court did not err or abuse its discretion in
        allowing the jury to utilize a magnifying lens during deliberations.

Id. (emphasis added).

        Instantly, the Commonwealth presented a “split-screen format that

compiled simultaneous footage from four separate surveillance cameras as a

2x2 grid” during its case-in-chief. Trial Ct. Op. at 7. During deliberations,

however, the trial court responded to the jury’s request to review this evidence

by directing the Commonwealth to present video from one camera angle at a

time.    Id.   The trial court determined that it did not err in ordering the

presentation of a different version of the video, because “the enlarged, single-

[camera angle] format of the video played for the deliberating jury was the

same evidence already played for the jury.” Id. at 6 (emphasis omitted).

Although the trial court correctly noted that the deliberating jury viewed “the

same evidence,” it was not presented “in the same manner” as the video

played during the Commonwealth’s case-in-chief. See Lilliock, 740 A.2d at

243.

        Nevertheless, the Commonwealth’s properly admitted evidence was

overwhelming. See Strong, 836 A.2d at 887. As the trial court noted:

        Officers McGonigle and Kinniry directly observed [Appellant] point
        a gun at someone and then flee after they announced their
        presence. Bystanders pointed Officer Kinniry to a firearm on the


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      ground along [Appellant’s] flight path. There are no discernible
      issues with the chain of custody of that firearm, and the DNA on
      the firearm belongs primarily to [Appellant]. Officer McGonigle
      looked at nearby surveillance footage to determine [Appellant’s]
      flight pattern, leading to the discovery of [Appellant] inside of a
      nearby vacant building where there was only one item of
      clothing―the hoodie that the officers allegedly saw [Appellant]
      wearing as he fled from them. The surveillance footage merely
      corroborates the officers’ eyewitness testimony and aspects of
      their investigation. . . .

Trial Ct. Op. at 10-11 (citations omitted).

      Additionally,    the    Commonwealth     entered       into   evidence    two

photographs, which were “still shots” taken directly from the surveillance

videos.   See N.T. Trial, 4/3/18, 38-39.        The photographs depicted an

individual in a gray sweatshirt pointing a gun at another individual.           See

Commonwealth’s        Exs.   22-23.   Unlike   the   video    played   during   the

Commonwealth’s case-in-chief, the photographs each featured one image

from a single camera angle. Id.

      In light of the Commonwealth’s overwhelming evidence, the prejudicial

effect of allowing the deliberating jury to view the altered video was so

insignificant by comparison that it is clear beyond a reasonable doubt that any

error was harmless. See Strong, 836 A.2d at 887. Accordingly, we affirm

the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/19/19




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