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Commonwealth v. Green

Superior Court of Pennsylvania

May 9, 2017


         Appeal from the Judgment of Sentence March 18, 2014 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0001078-2012



          GANTMAN, P.J.

         Appellant, 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.[1] We affirm.

         The 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.

         The 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.

         On 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.)

         Ms. 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).

         Ms. 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 70).[2] 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).

         Detective 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.

         Next, 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.

         The 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.

         The 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.

         In a 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 evidence.

         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 decisions.

         Appellant raises the following issues for en banc review:


(Appellant's en banc brief at 7).

         In his 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.

         This 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).

         The 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 otherwise.
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 ...

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