Com. v. Rathmann, E. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ERIC RATHMANN :
:
Appellant : No. 3257 EDA 2016
Appeal from the Judgment of Sentence September 23, 2016
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0004713-2015
BEFORE: PANELLA, J., DUBOW, J., and FITZGERALD*, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 01, 2017
Appellant, Eric Rathmann, appeals from the judgment of sentence
entered on September 23, 2016, in the Court of Common Pleas of Chester
County. A video of Rathmann in his neighbor’s bedroom, created on a
motion-activated web camera, formed the basis for his convictions of
burglary and criminal trespass. On appeal, he raises three evidentiary
challenges. We affirm.
Rathmann resided at Summit House Condominiums in West Chester,
Pennsylvania. Gregory Greenly lived in the residence next door. Summit
House is a complex comprised of multi-floor adjoining residences. The
neighbors’ condominiums share an exterior fence on the ground level and
share a partitioned balcony on the second floor. The partition is just three
feet high. In Greenly’s residence, a sliding glass door separates a bedroom
from the balcony.
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* Former Justice specially assigned to the Superior Court.
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In his bedroom, Greenly had a motion-activated web camera set on his
computer. On November 5, 2015, the camera captured Rathmann, wearing a
hoodie cinched close to his face, in Greenly’s room. He had climbed over the
partition and entered the residence through an unlocked sliding glass door.
The bedroom contained items of value, golf clubs and a television, among
other things, but Rathmann took no items from the residence. Based on the
video, the police arrested Rathmann.
The matter proceeded to a jury trial. At trial, the Commonwealth
offered two photographs into evidence, Commonwealth Exhibits 1 and 2,
portraying two views of the outside of Greenly’s and Rathmann’s
condominiums. Greenly answered “[y]es” when asked by the Commonwealth
if the photographs “fairly and accurately show what those portions of your
house looked like back in November of 2015?” Id., at 22.
Rathmann objected to the introduction of the photographs, arguing
they were not properly authenticated as “[t]he photos clearly were taken in
the summertime. There are leaves on the tress, the grass is green.” N.T.,
Trial, 7/14/16, at 22. “[O]bviously,” Rathmann maintained, “it … can’t
accurately reflect what it looked like in November of 2015.” Id. The trial
court overruled the objection, explaining the purpose of the photographs
was “simply” to show “what type of apartment it is and the connection
between the two apartments. The fact that the vegetation is different is not
of a major concern here.” Id., at 23.
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Later in his testimony, the Commonwealth asked Greenly what he saw
on the surveillance video.1 Greenly responded that he “saw the defendant.”
Id., at 32. Rathmann objected to this line of questioning. At sidebar, he
explained to the trial court that the video had not been properly
authenticated pursuant to Rule 901(a) of the Pennsylvania Rules of
Evidence. Rathmann noted the video is a digital copy from a computer and
“there is [sic] numerous ways this video could have been manipulated
before it was even turned over to the police.” Id., at 33. The trial court ruled
the testimony proper so long as “he can simply lay a little more foundation
that this is the guy that took the video” and that he “didn’t tamper with it at
all….” Id., at 34. Greenly resumed his testimony. He methodically explained
how the web camera video system worked, how it time-stamped the date,
and that he did not alter or tamper with the footage when he made a copy
for the police. See id., at 40-46.
At the conclusion of Greenly’s testimony, the Commonwealth offered
the video, marked as Commonwealth’s Exhibit 7, into evidence. Rathmann
lodged a further objection—“that it’s not the best evidence under Rule
1002.” Id., at 47. The trial court denied the objection. It then briefly
instructed the jury that it was for them to weigh the evidence and not to
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1 The Commonwealth also played the video for the jury.
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form any opinions on the case until they heard the entire case. See id., at
47-48. Rathmann lodged no objection to this instruction.2
Rathmann testified at trial. He admitted it was he in the video and in
the still frame captures from the video; he admitted he climbed over the
partition on the day in question; he admitted he entered the residence; he
admitted he walked around Greenly’s bedroom; and he admitted he had no
permission to be in the bedroom. See N.T., Trial, 7/15/16, at 16-20.
Although he admitted to all that, he also testified he had no memory of
actually entering the bedroom and being there. The Commonwealth argued
he was there with an intent to steal items of value. But Rathmann disagreed,
countering he was in the bedroom out of “curiosity” about “[h]ow the house
looked.” Id., at 22.
The jury disbelieved Rathmann. They found him guilty of burglary and
criminal trespass. The trial court later sentenced him to an aggregate term
of six to twenty-three months’ imprisonment. This timely appeal followed.
On appeal, Rathmann raises three issues alleging the trial court erred
in admitting evidence.
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
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2 Rathmann takes issue with this eminently reasonable instruction on appeal.
See Appellant’s Brief, at 6. As he lodged no objection to this instruction at
trial, we find this issue waived. See Pa.R.A.P. 302(a) (“Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.”)
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admissibility of evidence, we will only reverse a ruling by the
trial court upon a showing that it abused its discretion or
committed an error of law. Thus our standard of review is very
narrow. To constitute reversible error, an evidentiary ruling must
not only be erroneous, but also harmful or prejudicial to the
complaining party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (quotation
marks and citation omitted).
Rathmann first claims the trial court erred in admitting Commonwealth
Exhibits 1 and 2 without proper authentication. “The authenticating witness
declared on direct examination that the photographs ‘fairly and accurately
showed what those portions of your house looked like back in November of
2015.’” Appellant’s Brief, at 17 (emphasis in original) (quoting N.T., Trial,
7/14/16, at 22). According to Rathmann, that statement was patently false
as “the photographs did not accurately depict what the house looked like in
the autumn or early winter, and that is what the Commonwealth specifically
offered them to show….” Id. Candidly, this claim is absurd.
The photographs were demonstrative evidence. That is, “evidence …
tendered for the purpose of rendering other evidence more comprehensible
to the trier of fact.” Commonwealth v. McKellick, 24 A.3d 982, 986 (Pa.
Super. 2011) (citation omitted). “The requirement of authentication or
identification as a condition precedent to admissibility is satisfied by
evidence sufficient to support a finding that the matter in question is what
its proponent claims.” Pa.R.E. 901(a). “Demonstrative evidence such as
photographs, motion pictures, diagrams, and models have long been
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permitted to be entered into evidence provided that the demonstrative
evidence fairly and accurately represents that which it purports to depict.”
McKellick, 24 A.3d at 986-987 (citation omitted).
The Commonwealth used the photographs as demonstrative evidence
to show what the residences looked like and their proximity to each other—
not for what they looked like at a particular time of year. Foliage is
irrelevant. The structures did not change. And Greenly testified the
photographs fairly and accurately depict his residence. The trial court
committed no error in admitting the photographs.
Rathmann next argues the trial court erred in admitting the testimony
about the video as there was a failure of proper authentication. Video is also
demonstrative evidence. “Videotape requires an authenticating witness who
has seen the event or transaction and can testify to the accuracy of the
portrayal.” Hon. Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of
Evidence, § 901.08[5][e] Videotape (2016 ed.) (citation omitted). Simply
put, as with the photographs, the video may be authenticated by testimony
from a witness who has knowledge “that a matter is what it is claimed to
be.” Pa.R.E. 901(b)(1).
Here, that the video is an accurate depiction of Rathmann in Greenly’s
bedroom. And that is exactly what Greenly offered at trial. Greenly explained
how the web camera system worked and that it took video of Rathmann in
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his bedroom. See N.T., Trial, 7/14/16, at 40-46. Greenly properly
authenticated the video before it was entered into evidence.
Even putting aside this legal reality and assuming the video was
improperly authenticated, this error would be harmless. The conclusion of
Rathmann’s argument on this issue is that the video “served as the
foundation upon which three witnesses, Gregory Greenly, Thomas Greenly
and Detective Large, identified the person on the video.” Appellant’s Brief, at
23. Rathmann testified that on November 5, 2015, he climbed over the
partition and entered Greenly’s bedroom—and that he was the man in the
video. See N.T., Trial, 7/15/16, at 20. Thus, he cannot now argue the
identification derived from the video prejudiced him.
Lastly, Rathmann argues the trial court erred in admitting a copy of
the digital video file from the computer’s hard drive contained on a CD-R
disk.3 Rathmann asserts the Commonwealth was required, under Pa.R.E.
1002, to admit “the original video,” which “was on the hard disk drive” of
Greenly’s computer. Appellant’s Brief, at 24. Greenly made a copy of the
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3A “CD-R (Compact Disc-Recordable) is a digital optical disc storage format.
A CD-R disc is a compact disc that can be written once and read arbitrarily
many times.” CD-R, Wikipedia, available at
https://en.wikipedia.org/wiki/CD-R (last visited November 3, 2017).
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video file onto a thumb drive,4 which the police then copied onto a CD-R
disc.
Rule 1002 “corresponds to the common law ‘best evidence rule,’”
Pa.R.E. 1002 Comment, and provides that “[a]n 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.” “The best evidence rule applies where the contents of the item in
question must be proven to make a case.” Commonwealth v. Janda, 14
A.3d 147, 161-162 (Pa. Super. 2011) (citation omitted). That is clearly the
case here.
“Original” is defined, in pertinent part, as follows: “For electronically
stored information, ‘original’ means any printout--or other output readable
by sight--if it accurately reflects the information.” Pa.R.E. 1001(d). See also
Hon. Daniel J. Anders, Ohlbaum on the Pennsylvania Rules of Evidence, §
1001.09 Computer Data (2016 ed.) (“If data are stored in a computer or
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4 “A USB flash drive, also variously known as a … thumb drive … is a data
storage device that includes flash memory with an integrated USB interface.”
USB flash drive, Wikipedia, available at
https://en.wikipedia.org/wiki/USB_flash_drive (last visited November 3,
2017). What is USB? We have the answer: “USB, short for Universal Serial
Bus, is an industry standard that defines cables, connectors and
communications protocols for connection, communication, and power supply
between computers and devices.” USB, Wikipedia, available at
https://en.wikipedia.org/wiki/USB (last visited November 3, 2017).
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similar device, any print out or other output that accurately reflects the data
is an ‘original’ under Rule 1001(3).”)
It is the definition of “original” that defeats Rathmann’s claim. The
digital video file on the CD-R disc was played for the jury. And Greenly
testified the video was an accurate portrayal of his bedroom and that
Rathmann was the individual in the video. Indeed, as mentioned, even
Rathmann corroborated Greenly’s testimony by identifying himself on the
video in Greenly’s bedroom.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2017
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