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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, No. CP-02-CR-0001078-2012

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

MEMORANDUM BY MUSMANNO, J.:                    FILED DECEMBER 22, 2015

      Kashamara Green (“Green”) appeals from the judgment of sentence

entered following his conviction of theft by failure to make required

disposition of funds. We vacate Green’s judgment of sentence and remand

for a new trial.

      The trial court set forth the relevant factual and procedural history in

its Opinion, which we adopt herein for purposes of this appeal.      See Trial

Court Opinion, 4/30/15, at 2-3.

      On appeal, Green raises the following issues for our review:

      1. Did the trial court err when it permitted testimony from a
         bank administrator[,] regarding what she observed in a
         surveillance video, when the video itself was not admitted
         into evidence, in violation of the best evidence rule?

      2. Was the evidence sufficient to support the guilty verdict in
         this case where there was no proof of any criminal intent or
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         that [Green] benefitted from the missing funds, rendering any
         guilty verdict the product of conjecture and surmise?

Brief for Appellant at 7 (capitalization omitted).

      In his first issue, Green contends that his conviction must be reversed

because the Commonwealth’s testimonial evidence, regarding the contents

of PNC Bank’s surveillance videotapes, violated the best evidence rule,

codified at Pa.R.E. 1002. Id. at 11. Specifically, Green asserts that the trial

court should not have permitted bank employee Colleen Doheny (“Doheny”)

to testify regarding her observations of the contents of the bank’s

surveillance videotapes, because she had no personal knowledge regarding

the transactions depicted therein. Id. at 15. Rather, Green claims, Doheny

viewed only select portions of the bank’s surveillance videotapes, and

testified that she did not see Green making a night deposit in the portions

that she had viewed.     Id. at 16.   For this reason, Green argues, the best

evidence rule required production of the original surveillance videotapes,

which were never produced to Green and were unavailable at the time of

trial. Id. at 12, 15. Green also contends that the admission of Doheny’s

testimony regarding the contents of the videotapes constituted prejudicial

error, requiring the reversal of his conviction. Id. at 15.

      Questions concerning the admission and exclusion of evidence are

within the sound discretion of the trial court and will not be reversed on

appeal absent an abuse of discretion. Commonwealth v. Freidl, 834 A.2d

638, 641 (Pa. Super. 2003).


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         Here, the trial court addressed Green’s first claim, set forth the

relevant law, and determined that the court violated the best evidence rule

by permitting Doheny to testify regarding the contents of the bank’s

surveillance videotapes, when the videotapes no longer existed.        See Trial

Court Opinion, 3/2/15, at 3-6. The trial court also determined that the error

was not harmless. See id. We concur with the trial court’s reasoning and,

on this basis, vacate Green’s judgment of sentence and remand for a new

trial.

         Based on our disposition of Green’s first issue, we need not address his

remaining issues.

         Judgment of sentence vacated.        Case remanded for a new trial.

Jurisdiction relinquished.

         Lazarus, J., joins the memorandum.

         Gantman, P.J., files a dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/22/2015




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     IN THE FIFTH JUDICIAL DISTRICT OF THE COMMONWEALTH          OF PENNSYLVANIA
                              COUNTY OF ALLEGHENY
                                 CRIMINAL DIVISION




 COMMONWEALTH      OF PENNSYLVANIA             ) CC No. 201201078
         vs.                                   ) Superior Court No. 1324WDA2014
 KASHAMARA GREEN                               )

                                       OPINION


       The appellant, Kashamara Green, (hereinafter referred to as "Green"), was

 originally charged with four counts of theft by failure to make required disposition

 and one count of forgery. Green proceeded with a jury trial on March 17, 2014, and
                                                                                                              ;



 following the conclusion of the Commonwealth's case, this Court granted his motion                       i'

for judgment of acquittal on the charge of forgery. On March 18, 2014, the jury

returned a verdict of guilty with respect to one count of theft by failure to make

required disposition and found Green not guilty on the remaining three counts of
                                                                                                          !I
theft by failure to make required disposition. Green was sentenced to three years
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probation, required to undergo random drug screening and was required to pay
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restitution in the amount of $2,900.38.                                                                   Ii
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                                                                                                          I

       Green filed timely post-sentence motions and following a hearing on those
                                                                                                          l,j,i
motions, this Court denied his post-sentence motions. After the denial of his post-                       1.
                                                                                                          :1i· l
sentence motions, Green filed a timely appeal and was directed to file a concise                          i'
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                                                                                                          !
                                                                                                          i
statement of matters complained of on appeal. In complying with that directive,

Green maintains three claims of error. Initially Green maintains that the Court

erred in allowing testimony from a bank administrator concerning what she viewed

on surveillance videotapes when those tapes were not introduced into evidence.

Green also maintains that the evidence was insufficient to support the verdict of
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 guilty and, in the alternative, that the weight of the evidence does not support the

 verdict in this case.

        Green was employed as the manager of a Family Dollar Store located in Penn

 Hills, Pennsylvania.      Among his numerous responsibilities   was to make daily

 deposits of the cash generated at that business.     During a routine audit of the

business, it was determined that there were four deposits that were missing during

the month of June 2013. In reviewing the records in this case, it was determined

that Green would have been responsible for making all four of those deposits

During the course of trial, the Commonwealth presented the testimony of Colleen

Doheny, who was employed by PNC Bank in 'their internal frauds investigation.            As

part of her testimony, she described what she viewed on the surveillance tapes,

which were maintained by PNC at the bank where Green should have made his

deposits.   In that testimony, she stated that she never viewed Green on those

surveillance tapes.      Prior to her testimony about the surveillance tapes, Green's

counsel made an objection on the basis that her testimony would violate the best

evidence since the tapes had not been introduced into evidence and, in fact, that the

tapes no longer existed.

       Green maintains that the testimony of Doheny should have been restricted so

as not to let her testify as to what she viewed on the videotapes since it violated the

best evidence rule. Pennsylvania        Rule of Evidence 102 sets forth the best

evidence rule as follows:

      Rule 102. Purpose                                                                                     !I




              These rules should be construed so as to administer every proceeding                          11
                                                                                                            :i
                                                                                                            'I
              fairly, eliminate unjustifiable expense and delay, and promote the                            'I
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             development of evidence law, to the end of ascertaining the truth and
             securing a just determination.




In Commonwealth v. Lewis, 424 Pa. Super. 531, 623 A2d 355, 358-359 (1993),

the Court was confronted with the question of whether or not a witness could testify

to what he observed on a videotape when that videotape was not introduced into

evidence.

             Anderson u. Comrnonuiealth, 121 Pa.Cmwlth. 521, 550 A.2d 1049
      (1988) is the only case involving the application of the best evidence rule to a
      videotape. In Anderson, the owner of a bookstore appealed the trial court's
      finding that he had violated a township pornography ordinance. At trial, the
      township elicited the testimony of the Township Zoning Officer and an
      interested citizen concerning the allegedly pornographic contents of reading
      material and videotapes which were available at the bookstore. The township
      did not produce any of the material alleged to be pornographic. On appeal,
      the Commonwealth Court held that without the production of the alleged
      pornographic material, it was an error of law for the trial court to admit the
      testimony of the two witnesses. The court stated:

             Clearly, the best evidence concerning the alleged pornographic
      material was the material itself ... Since the witnesses did not actually read
      the written material or view the film in its entirety the best evidence rule
      precludes their testimony to establish the contents.
      Id. at 523, 550 A.2d at 1050.

            The rationale for the best evidence rule was discussed in Hamill-
      Quinlan, Inc. v. Fisher, 404 Pa.Super. 482. 591 A.2d 309 (1991):

            The rationale for the rule is readily apparent: in light of the added
            importance that the fact-finder may attach to the written word, it is
            better to have available the exact words of a writing, to prevent 'the
            mistransmitting [of] critical facts which accompanies the use of written
            copies or recollection,' and to prevent fraud. See L. Packel & A. Poulin,
            Pennsylvania Evidence, § 1001 at 694 (1987 & Suppl.1990), (quoting
            McCormick, Evidence, § 231 (3d ed. 1984)).

     Hamill-Qu.inlan, Inc. at 489, 591 A.2d at 313.

           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
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•
     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.

             Furthermore, the contents of the tape i.e., Appellant's alleged act of
     retail theft, were very much at issue in the present case, since Appellant had
     been charged with retail theft. The interpretation of exactly what occurred
     between Appellant and his companion in the Sears store was crucial to a
     determination of whether Appellant had intended to remove the radio from
     the store without paying for it, and whether he had in fact known what his
     companion was doing when Lohnes exited the store with the radio in his
    jacket. Therefore, because Officer Barclay attempted to testify regarding the
    contents of the videotape, the best evidence rule bars the admission of his
    testimony. Unlike the witnesses in Anderson, Officer Barclay had viewed the
    tape; nevertheless, he did not have first-hand knowledge of Appellant's
    alleged act of theft; rather, whatever knowledge he possessed was gained
    from his viewing of the videotape. Thus, the original tape should have been
    produced. Security guard Stephen Fee testified at trial that he was unable to
    locate the videotape of Appellant's actions, as such tapes were stored in the
    basement *538 of the Sears store, and the system whereby they are classified
    for storage is imprecise. Because this explanation concerning the
    unavailability of the tape was unsatisfactory, application of the rule to the
    instant case renders the testimony of Officer Barclay inadmissible as
    secondary evidence. Therefore, the trial court erred in admitting Barclay's
    testimony.

          Furthermore, the admission of Officer Barclay's testimony concerning
    the content of the video tape does not constitute harmless error. The general
    harmless error standard is set forth in Commonwealth v. Norris, 498 Pa. 308,
    446 A.2d 246 (1982):

           Under the test adopted by this court, evidence improperly admitted
    can be treated as harmless on any one of three grounds, namely, that the
    evidence of guilt, without regard to the tainted evidence, is so overwhelming
    that conviction would have followed beyond a reasonable doubt without
    regard to it, that the tainted evidence is merely cumulative of other proper
    persuasive evidence on the issue for which it is offered, or that it is so slight
    or tangential in its effect that its influence on the jury can be determined to
    have been de minimis.

    Id.   at.   317, 446 A.2d at. 250.




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I
    ,.
I               In viewing Green's case in light of the holding Commonwealth v. Lewis,


I        supra., it is clear that it was error for this Court to allow the representative from

         PNC to testify to what she had observed on the surveillance videotapes when they
I        no longer existed. It is also clear that it was not a harmless error and, accordingly,


I        Green's conviction for theft should be vacated and the case should be remanded for

         the purpose of a new trial. In light of the disposition of this claim of error, it is
I        unnecessary to consider Green's remaining claims of error.


I                                    BY THE COURT:



I                                            Cl.~~- ..·.-~J
I
         DATED:       March 2, 2015




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