from the Judgment of Sentence March 18, 2014 In the Court of
Common Pleas of Allegheny County Criminal Division at No(s):
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., BENDER, P.J.E.,
BOWES, J., PANELLA, J., SHOGAN, J., LAZARUS, J., OLSON, J.,
and OTT, J.
Kashamara Green, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas,
following his jury trial conviction for one (1) count of
theft by failure to make required disposition of funds
received. We affirm.
relevant facts and procedural history of this case are as
follows. In 2011, Appellant worked as the manager of a Family
Dollar store located in Penn Hills, Pennsylvania. One of
Appellant's responsibilities was to make regular deposits
of cash generated by the store's business. The normal
procedure was for the store manager, Appellant in this case,
to bring the cash to the bank in a bag, make the deposit, and
return to the store to fill out a deposit log. A different
employee had to verify the cash deposit. Generally, Appellant
obtained a verifying signature from the assistant manager by
showing her either a validated deposit slip from the bank or
an empty cash bag. Nobody had to accompany Appellant to the
bank when he made the deposits.
testimony at trial revealed the following. In September 2011,
Shaun McDonald, a regional Loss Prevention Director for
Family Dollar, received notice of a missing deposit from the
Family Dollar store in Penn Hills. Upon investigation, Mr.
McDonald discovered four missing deposits from that store.
After reviewing the store deposit logs, Mr. McDonald
established that Appellant was the person who was responsible
for the four missing cash deposits: proceeds for July 10,
2011 ($2, 900.83), August 7, 2011 ($2, 943.31), August 19,
2011 ($2, 302.13), and September 1, 2011 ($3, 302.56). Mr.
McDonald interviewed Appellant, who confirmed he was
responsible for making the four deposits in question, had
signed for the deposits, and had taken each of them to the
bank as noted in the store deposit log. The Family Dollar
store deposit log, however, registered $2, 900.83 in-store
proceeds for July 10, 2011, and dropped at the bank on July
12, 2011. Appellant also gave Mr. McDonald a deposit slip for
$2, 900.83 that purported to be for the business day of July
10, 2011. The proffered deposit slip noted a deposit date of
July 14, 2011. Mr. McDonald confirmed the deposit slip from
Appellant had been altered, as the sequence number (#70) and
other information on the slip corresponded to a different
deposit made the month before, on June 7, 2011. Mr. McDonald
said he was able to verify that the four deposits in question
were not ever made as documented. Mr. McDonald also stated he
had personally seen the one "altered" deposit slip
from Appellant. As a result of his investigation, Mr.
McDonald contacted the police, who then contacted the bank.
cross-examination, Mr. McDonald confirmed the deposits in
this case were logged as having been deposited at an outside
drop box at the bank. He said Appellant was cooperative,
answered all questions, denied keeping those deposits for
personal gain, and agreed to assist with any police
investigation. Mr. McDonald also confirmed both the log and
the bank receipts should have been under lock and key but
occasionally bank deposit slips would "go missing."
Likewise, at times the person physically making the deposit
might not get a bank deposit receipt on the same day. Defense
counsel objected to the admission of the "altered"
deposit slip and logs because they were copies of the
originals; counsel did not object to Mr. McDonald's
testimony regarding the information contained in the
documents where Mr. McDonald had personal knowledge of the
originals. (See N.T. Trial, 3/17/14, at 24-62.)
Colleen Doheny, an Internal Fraud Investigator for PNC Bank,
also investigated the matter. Ms. Doheny reviewed the deposit
slip Appellant had given to Mr. McDonald, but she could not
find that deposit in the bank's teller journals. She also
recognized that the information on the slip did not line up
evenly, and the font was inconsistent with the bank's
practice of using all capital letters to identify the month
in the date field. Ms. Doheny suspected the deposit slip had
been modified. Moreover, PNC Bank reported that teller cash
box #5 referenced on the slip was not in operation on July
14, 2011, the date on the deposit slip. Additionally, the
dollar amount and sequence number on the slip did not match
any other cash box in operation on that date. The cash box
and sequence numbers, however, matched the information for a
deposit made the previous month on June 7, 2011.
(Id. at 64-69).
Doheny also reviewed the bank's surveillance videos,
looking for a person or a vehicle that matched the verbal
descriptions, obtained from the police, of Appellant and his
car, a 1996 light blue Buick Riviera. Defense counsel
objected to her testimony about the tapes on the ground that
the tapes were not produced at trial, in violation of the
best evidence rule at Pa.R.E. 1002. (Id. at 70-72).
The Commonwealth explained it did not have the videos because
"they are no longer available." (Id. at
The court allowed Ms. Doheny's limited testimony that she
had seen no one, on the tapes she viewed, who matched
Appellant's description or any vehicle that matched
Appellant's car. (Id. at 72-73). Ms. Doheny
admitted on cross-examination that she had not met Appellant
and had only a verbal description of him from the police. She
also conceded the possibility of errors on the bank's end
of a deposit generally, for example, deposits made to the
wrong account or a night-box jam. Ms. Doheny reconfirmed that
teller cash box #5, referenced on the "altered"
slip, was not in operation on July 14, 2011, so there was no
sequence #70 at teller cash box #5 for that day.
(Id. at 73-79).
Joseph Blaze conducted the police investigation in this case.
He identified Appellant as the person the detective had
interviewed regarding the missing deposits. Together,
Detective Blaze and Appellant reviewed the store deposit log,
and Appellant acknowledged he was the person responsible for
the deposits at issue. Appellant gave Detective Blaze no
explanation for why the money was missing, but Appellant did
confirm the dates and times associated with each deposit in
the log were correct. Detective Blaze also said he provided
Ms. Doheny with Appellant's description, along with the
dates and times stated in the log as Appellant had verified.
On cross-examination, Detective Blaze agreed Appellant denied
taking any of the money. Detective Blaze also said his
investigation was primarily based on the deposit log and
Appellant's admission that he was responsible for the
deposits at issue. Detective Blaze asked Ms. Doheny to
investigate the deposits and review the surveillance tapes
associated with the particular deposits. No one actually
witnessed Appellant tampering with the deposit slip or taking
the money, but Appellant openly admitted he carried the money
from the store to the bank on the dates and times recorded.
No one actually knew if Appellant did not
make the deposits, but there was no evidence of the deposits
or of him making the deposits either. (Id. at
80-91). At the close of the Commonwealth's case-in-chief,
defense counsel moved for judgment of acquittal on the
forgery count, because the original deposit slip was not
produced. The court granted the motion on that count.
Appellant testified he had worked for the Family Dollar store
for three years, during which he was promoted from a clerk
position to assistant manager and then to store manager.
Appellant was the store manager in September 2011.
Appellant's duties as assistant manager and as manager
included taking cash deposits to the bank at least several
times each week. On the dates of the deposits at issue, the
deposit log demonstrated someone other than Appellant had
verified the deposits in the log. Specifically, on those
dates Appellant either showed his assistant an empty bag or
the bank receipt. Appellant said he was shocked over the
missing deposits. Appellant had no idea where the money went,
but he assured the jury he did not keep the money for
"his personal gain." Appellant also stated he did
not ever change or alter any deposit receipts. On
cross-examination, Appellant confirmed no one ever went with
him to make the bank deposits, he always followed the store
rules with respect to the deposits, but occasionally he
signed the log by mistake (in the wrong column) as the person
who verified a deposit. The transactions in question were all
night drops, with no hand-to-hand contacts with bank tellers
during regular business hours. Appellant claimed the deposit
slip he gave to Mr. McDonald was exactly how the bank had
printed it and given it to Appellant. (Id. at
93-105). Following Appellant's testimony, the defense
rested. The court then colloquied Appellant to confirm his
choice to testify at trial, without presenting character
evidence, was freely and voluntarily made.
Commonwealth's remaining charges against Appellant
included the four counts of theft by failure to make required
disposition of funds received. The jury convicted Appellant
of only one count of theft, related to the missing deposit of
$2, 900.83 for July 2011. The jury found Appellant not guilty
on the remaining theft counts.
court sentenced Appellant on March 18, 2014, to three (3)
years' probation and ordered restitution in the amount of
$2, 900.83. On March 28, 2014, Appellant timely filed a
post-sentence motion for a new trial, challenging the weight
of the evidence. Following a hearing, the court denied
post-sentence relief by order entered July 14, 2014.
Appellant timely filed a notice of appeal on August 13, 2014.
The court ordered Appellant to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),
and Appellant timely complied.
memorandum decision filed on December 22, 2015, a panel of
this Court (with one dissent) reversed Appellant's
judgment of sentence and remanded for a new trial. The panel
majority agreed with Appellant that Ms. Doheny's
testimony on the bank surveillance videos violated the best
evidence rule. The panel addressed only this claim and,
without further analysis, simply concurred with the trial
court's opinion that it had erred in admitting that
testimony at trial, the error was not harmless, and it
constituted per se reversible error. The trial court
arrived at its conclusion, citing Commonwealth v.
Lewis, 623 A.2d 355, 358 (Pa.Super. 1993) as
dispositive. Due to this Court's treatment of
Appellant's first issue, the panel majority declined to
address his second issue challenging the sufficiency of the
dissent took the position that Ms. Doheny's testimony on
the surveillance tapes arguably violated the best evidence
rule in theory, but admission of that limited testimony was
harmless error, given its limited substance compared to the
other properly-admitted evidence of Appellant's guilt.
The dissent distinguished the Lewis case on several
grounds, including: (1) Lewis did not hold that any
violation of the best evidence rule is reversible error
per se; (2) the objectionable testimony in
Lewis concerned Mr. Lewis' actions on the videos
along with the arresting officer's interpretation of
those actions, which raised the unfair inference that Mr.
Lewis knew his companion intended to remove merchandise from
a store without paying for it; (3) the arresting officer
obtained his knowledge of Mr. Lewis' actions solely from
watching the videos; and (4) the properly admitted testimony
of the security guard was not independently cumulative of the
inferences raised in the objectionable testimony. The
Lewis Court also noted that the explanation given
for the unavailability of the videos was unsatisfactory.
Therefore, the dissent concluded Lewis was
distinguishable from the present case and not dispositive.
The dissent also addressed Appellant's second issue
challenging the sufficiency of the evidence as this Court did
in Lewis, even though Mr. Lewis obtained relief on
appeal in the form of a new trial. On March 1, 2016, this
Court granted the Commonwealth's application for en
banc reargument and withdrew the original memorandum
raises the following issues for en banc review:
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?
WAS THE EVIDENCE SUFFICIENT TO SUPPORT THE GUILTY VERDICT IN
THIS CASE WHERE THERE WAS NO PROOF OF ANY CRIMINAL INTENT OR
THAT [APPELLANT] BENEFITED FROM THE MISSING FUNDS, RENDERING
ANY GUILTY VERDICT THE PRODUCT OF CONJECTURE AND SURMISE?
(Appellant's en banc brief at 7).
first issue, Appellant argues Ms. Doheny had no first-hand
knowledge of what was depicted on the bank surveillance
videos. Specifically, Appellant contends Ms. Doheny's
knowledge of the surveillance videos was based solely on
viewing the videos after the fact, without contemporaneous
observations of what was also captured on the videos.
Appellant avers Ms. Doheny reviewed the surveillance videos
based on an estimation of when the deposits might have been
made, but she did not review the videos for the entire nights
in question; and she also viewed the videos with a mere
verbal description of Appellant and his car. Appellant
asserts Ms. Doheny's testimony relating her observations
of the bank surveillance videos violated the best evidence
rule because the Commonwealth failed to introduce at trial
the actual videos Ms. Doheny had viewed. Appellant avers the
jury convicted him of the theft count linked to Ms.
Doheny's testimony regarding the surveillance videos.
Appellant claims admission of Ms. Doheny's testimony on
the surveillance videos was not harmless error because there
was a reasonable possibility her testimony contributed to the
guilty verdict. Appellant concludes he is entitled to a new
trial. We disagree.
Court has held:
"Admission of evidence is within the sound discretion of
the trial court and will be reversed only upon a showing that
the trial court clearly abused its discretion."
Commonwealth v. Drumheller, 570 Pa. 117, 135, 808
A.2d 893, 904 (2002), cert, denied, 539 U.S. 919,
123 S.Ct. 2284, 156 L.Ed.2d 137 (2003) (quoting
Commonwealth v. Stall worth, 566 Pa. 349, 363, 781
A.2d 110, 117 (2001)). "Admissibility depends on
relevance and probative value. Evidence is relevant if it
logically tends to establish a material fact in the case,
tends to make a fact at issue more or less probable or
supports a reasonable inference or presumption regarding a
material fact." Drumheller, supra (quoting
Stallworth, supra at 363, 781 A.2d at 117-18).
Commonwealth v. Reese, 31 A.3d 708, 716 (Pa.Super.
2011) (en banc).
best evidence rule provides:
Rule 1002. Requirement of the Original
An 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
Comment: Pa.R.E. 1002 differs from F.R.E. 1002 to
eliminate the reference to Federal law.
This rule corresponds to the common law "best evidence
rule." See Hera v. McCormlck, 425 Pa.Super.
432, 625 A.2d 682 (1993). The rationale for the rule was not
expressed in Pennsylvania cases, but commentators have
mentioned four reasons justifying the rule.
(1) The exact words of many documents, especially operative
or dispositive documents, such as deeds, wills or contracts,
are so important in determining a party's rights accruing
under those documents.
(2) Secondary evidence of the contents of documents, whether
copies or testimony, is susceptible to inaccuracy.
(3) The rule inhibits fraud because it allows the parties to
examine the original documents to detect alterations and
erroneous testimony ...