Com. v. Presgraves, J., III

J. A18010/15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMES O. PRESGRAVES, III, : No. 1832 MDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, June 18, 2014,
in the Court of Common Pleas of Franklin County
Criminal Division at No. CP-28-CR-0000808-2012
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JANUARY 22, 2016
James O. Presgraves, III, appeals from the judgment of sentence of
June 18, 2014, following his conviction of one count each of driving under
the influence (“DUI”) -- high rate of alcohol, DUI -- general impairment, and
recklessly endangering another person (“REAP”). After careful review, we
affirm.
The facts of this matter, as gleaned from the trial transcripts, may be
summarized as follows:
Officer Matthew Lynch testified that in the early morning hours of
January 21, 2012, at approximately 2:00 a.m., he was on routine patrol
when he came upon a single vehicle accident near the intersection of Wayne
Avenue and Second Street in Chambersburg. (Notes of testimony, 4/8/14 at
7.) Conditions were poor due to heavy snowfall. (Id. at 8.) Officer Lynch
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was directed by a group of bystanders to a Jeep Grand Cherokee which had
apparently crashed into a telephone pole. (Id. at 13.) Officer Lynch
observed a female seated in the back seat, passenger side, who was in need
of medical assistance. (Id. at 14.) She was moaning and her face was
covered in blood. (Id.) Officer Lynch tried talking to her but she was
nonresponsive. (Id. at 15.) Officer Lynch tried to keep her stationary until
EMS arrived. (Id.)
Subsequently, Corporal Darren Helsel arrived on the scene with
appellant. (Id. at 18.) Appellant indicated that the woman inside the
vehicle was his wife, Stacey. (Id. at 19.) When appellant exited
Corporal Helsel’s vehicle, he had a significant amount of blood on his face
and an injury to the upper-right portion of his head. (Id. at 20.) According
to appellant, he and Stacey had met two people that night at a bar, a friend
of hers and an unknown male individual. (Id. at 20-21.) They decided to
leave the bar to go to the friend’s house. (Id.) Appellant stated that the
unknown male individual was driving the Jeep when it crashed. (Id. at 21.)
Appellant did not know their names and had never met them before. (Id.)
When Officer Lynch asked appellant why he left the accident scene, he
claimed that he was chasing after the unknown male driver. (Id.)
After appellant and Stacey were transported to the hospital,
Officer Lynch noticed an impact point on the inside of the windshield
containing blood and hair. (Id. at 26-27; Commonwealth’s Exhibit 12.) The
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hair stuck in the glass matched appellant’s hair color. (Id. at 27-28.) Later,
at the hospital, Officer Lynch questioned appellant further about the details
of the accident. At that time, appellant stated that they were at the Relax
Lounge where they met up with Stacey’s friend and her boyfriend. (Id. at
30.) Appellant reiterated that he had never met these people before. (Id.)
After they left the bar, the unknown male was driving, Stacey was in the
front passenger seat, appellant was seated behind Stacey in the right rear
passenger seat, and the unknown male’s girlfriend was seated in the left
rear passenger seat. (Id.) According to appellant, there was a road rage
incident with another vehicle, which caused the driver to lose control and
strike the telephone pole. (Id. at 30-31.)
While he was talking, Officer Lynch noticed that appellant was giving
off a strong odor of alcohol. (Id. at 32.) When Officer Lynch asked
appellant how much he had to drink that night, appellant stated that he
consumed four or five beers. (Id.) Appellant stated that he did not know
how he hurt his head; however, Officer Lynch observed that the hair
imbedded in the glass of the front windshield was the same color and length
as appellant’s. (Id. at 32, 36.)
Officer Lynch thought it was strange that no one else was found in the
vicinity of the crash other than appellant. (Id. at 36-37.) Officer Lynch also
found it odd that appellant would let his wife sit up front with a strange man,
while he sat in the back with the man’s girlfriend. (Id. at 37.) Officer Lynch
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advised appellant that he believed he was the driver of the vehicle, and was
intoxicated, and requested that he submit to chemical testing. (Id. at 37-
38.) Appellant agreed, and they obtained a blood sample as well as a hair
sample and a Buccal swab from the inside of appellant’s cheek for DNA
analysis. (Id. at 38, 57.) Appellant’s blood alcohol concentration was
0.127 percent. (Id. at 39.)
Corporal Helsel testified that he was on routine patrol at 2:00 a.m. on
January 21, 2012, when he received a dispatch regarding a traffic accident
at the intersection of Catherine and Second Streets. (Notes of testimony,
4/7/14 at 125.) Corporal Helsel received information over police radio that
witnesses saw an occupant of the vehicle leave the accident scene, traveling
east on Catherine Street. (Id. at 126.) Corporal Helsel proceeded to the
area and observed an individual in a dark hoodie. (Id. at 127-128.)
Corporal Helsel did not see anyone else in the area at that time. (Id. at
128.) Corporal Helsel parked his patrol car and walked up to the individual.
(Id.) He observed blood on the right side of his face, as well as a small
laceration on his forehead. (Id.) Corporal Helsel identified this individual as
appellant. (Id. at 129-130.) Corporal Helsel asked appellant if he was
okay; appellant gave no response. (Id. at 130.) At that point, Corporal
Helsel transported appellant back to the accident scene. (Id.)
Officer Matthew Bietsch testified that when he arrived on scene,
Officer Lynch was already present. (Id. at 73.) Officer Lynch informed him
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that there appeared to be someone missing. (Id. at 74.) Officer Bietsch
observed footprints in the snow, leading away from the driver’s side door of
the Jeep. (Id. at 75.) Officer Bietsch saw only one set of footprints. (Id.)
Officer Bietsch did not see any other footprints leading away from the
vehicle. (Id. at 78.) Officer Bietsch testified that conditions were snowy
and there was a fresh blanket of snow in the area. (Id.) Officer Bietsch
followed the footprints east on Catherine Street and made contact with
appellant and Corporal Helsel. (Id. at 76-79.) Appellant appeared to have
an injury to the right side of his forehead. (Id. at 80.)
Thaddeus Ballard (“Ballard”) testified that in the early morning hours
of January 21, 2012, he was going home from the Relax Lounge on Orchard
Drive in Chambersburg. (Notes of testimony, 4/7/14 at 3-4.) Ballard was
accompanied by two of his cousins, and his brother. (Id. at 4.) Ballard
could not remember who was driving. (Id. at 4-5.) Ballard came upon an
accident at the corner of Second and Catherine Streets. (Id. at 5.) Ballard
saw a Jeep that had struck a telephone pole. (Id. at 5-6.) They stopped
and put their hazard lights on. (Id. at 8.) Ballard testified that a woman
who appeared to be injured was inside the vehicle, on the passenger side.
(Id.) The woman was moaning and bleeding from her head. (Id. at 8-9.)
While Ballard was looking inside the car, a man approached him. (Id.
at 9.) Ballard described the man as Caucasian with long hair and blood on
his face. (Id. at 10-11.) Ballard could not identify the individual at trial.
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(Id. at 10.) Ballard told him that the female passenger looked like she was
in trouble and he needed to call the police. (Id. at 9.) The male individual
responded, “Don’t call the cops; don’t call the cops,” and instructed Ballard
“to say that a Mexican did it.” (Id.) Ballard called 911, at which point the
male individual ran away. (Id. at 10-11.) Ballard characterized his
demeanor as “very, very scared.” (Id. at 11.)
On January 26, 2012, a few days after the accident, Officer Lynch
re-interviewed appellant. At this time, appellant’s version of events changed
significantly. Appellant stated that the vehicle was driven by an individual
with the alias “Bear,” who appellant knew from playing pool at Jim’s Tavern
in Greencastle. (Notes of testimony, 4/8/14 at 68-69.) There was no
mention of a fourth person in the vehicle. (Id. at 69.) In addition, appellant
now stated that at the moment of impact, he was leaning forward from the
back seat giving his wife a kiss, instead of seated directly behind his wife
next to the window on the rear passenger side. (Id. at 68.) Officer Lynch
found this to be significant, as he had mentioned to appellant previously that
there were hairs recovered from inside the front windshield. (Id.)
Officer Lynch was unable to find anyone who went by the alias, “Bear.” (Id.
at 69-70.)
Officer Lynch testified that on January 31, 2012, he went to the Relax
Lounge and Orchard’s Restaurant to review video surveillance footage from
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the night of the accident. (Id. at 73.)1 Officer Lynch observed appellant
and Stacey seated at a table in the bar by themselves. (Id. at 75.)2 There
was no one else around them. (Id.) At some point, appellant and Stacey
got up and exited the bar. (Id.) Officer Lynch testified that although
several other people left around the same time, it did not appear that
appellant and Stacey were conversing with them or had any kind of
relationship with them. (Id. at 75-76.)
Appellant and Stacey proceeded to the northeast corner of the parking
lot. (Id. at 77.)3 Their vehicle was just outside camera range. (Id. at 78.)
After approximately 30 seconds, appellant walked back into view, and
re-entered the bar using the same door. (Id. at 79-80.) Appellant was by
himself; Officer Lynch could not see Stacey at that time. (Id. at 80.)
According to Officer Lynch, appellant was “kind of mingling around.” (Id.)
Appellant spoke briefly to an unidentified female but no one else. (Id.)
After several minutes, appellant left the bar again, returning to the northeast
corner of the parking lot. (Id. at 80-81.) Appellant passed out of camera
range. (Id. at 81.) After several seconds, Officer Lynch saw light from
1
The Relax Lounge and Orchard’s Restaurant are connected and owned by
the same proprietor. (Notes of testimony, 4/7/14 at 47-48.)
2
As discussed below, the actual video recordings were unavailable to play
for the jury. Officer Lynch was permitted to testify to the contents of the
recordings, with an appropriate cautionary instruction.
3
The premises has 16 cameras both inside and outside the building. (Notes
of testimony, 4/7/14 at 48.)
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headlamps and a car appeared, driving across the parking lot towards
Orchard Drive. (Id. at 81-82.) The vehicle appeared to be the same Jeep
Grand Cherokee which was involved in the accident a short time later. (Id.
at 82.) Officer Lynch was unable to see the occupants of the vehicle. (Id.)
Officer Lynch testified that when he exited the bar, appellant was wearing a
baseball cap. (Id. at 84.) Later, at the accident scene, Officer Lynch did not
see a baseball cap. (Id.)
Timothy J. Gavel is a forensic scientist employed by the Pennsylvania
State Police. (Id. at 156-157.) Mr. Gavel testified that appellant’s DNA
matched the blood sample from the interior windshield of the Jeep. (Id. at
162-163.) In addition, appellant’s DNA matched a blood sample collected
from the driver’s side door, lower interior rocker panel. (Id. at 164-165.)
Appellant testified in his own defense. Appellant testified that he and
Stacey went to the Relax Lounge to see a Led Zeppelin cover band called
“Cashmere.” (Notes of testimony, 4/9/14 at 32.) Appellant had been
drinking and Stacey did not want to drive home in the snow. (Id. at 36-38.)
According to appellant, Bear agreed to drive them home. (Id. at 39.)
Appellant took Bear’s baseball hat and put it on to ensure that Bear would
not leave them. (Id. at 40.) Later, in the car, appellant returned the
baseball hat to Bear. (Id. at 43-44.)
Appellant testified that Stacey was in the front passenger seat and he
was in the back seat, in the middle, between the two front seats. (Id. at
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44.) Appellant stated that he was leaning forward to kiss Stacey when he
heard a loud noise and hit the windshield. (Id. at 44-46.) Appellant
testified that after the accident, Bear left the scene. (Id. at 47.) Appellant
chased after him, which is when he encountered Corporal Helsel. (Id. at 48-
50.) Stacey testified on appellant’s behalf and substantially corroborated his
account of the accident. (Notes of testimony, 4/8/14 at 187-202.)
On April 9, 2014, following a jury trial, appellant was found guilty of
two counts of DUI and one count of REAP. Appellant was found not guilty of
aggravated assault by vehicle, aggravated assault by vehicle while DUI, and
accident involving death or personal injury. (Notes of testimony, 4/9/14 at
186-189.) On June 18, 2014, appellant was sentenced to 12 to 60 months’
imprisonment followed by 24 months of probation. On June 30, 2014,
appellant filed a timely post-sentence motion,4 including a challenge to the
weight of the evidence, which was denied on October 28, 2014. Appellant
complied with Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has
filed an opinion.
Appellant has raised the following issues for this court’s review:
A. ISSUE 1:
WHETHER THE TRIAL COURT ABUSED ITS
DISCRETION IN PERMITTING OFFICER LYNCH
TO NARRATE THE CONTENTS OF THE RELAX
LOUNGE VIDEO RECORDING IN LIEU OF
PRODUCING THE ACTUAL RECORDINGS AND
4
The actual tenth day following sentencing was Saturday, June 28, 2014;
therefore, appellant had until the following Monday, June 30, 2014, to file
his post-sentence motion. 1 Pa.C.S.A. § 1908.
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WHETHER FROM A PRAGMATIC RELEVANCE
PERSPECTIVE SUCH TESTIMONY [SIC]
PROBATIVE VALUE OUTWEIGHED THE
DANGERS OF UNFAIR PREJUDICE AND
POTENTIAL TO MISLEAD THE JURY[?]
B. ISSUE 2: DID THE TRIAL COURT’S DECISION
TO DENY APPELLANT’S MOTION FOR A NEW
TRIAL MISAPPLY THE LAW TO THE EXTENT IT
FAILED TO EXERCISE ITS JUDICIAL
“JUDGMENT” IN REACHING A DISPASSIONATE
CONCLUSION WITHIN THE FRAMEWORK OF
THE LAW[?]
Appellant’s brief at 8.5
In his first issue on appeal, appellant argues that the trial court erred
in granting the Commonwealth’s pre-trial motion in limine to permit
Officer Lynch to testify regarding the contents of the videotape recordings
from the Relax Lounge. Appellant argues that the Commonwealth acted in
bad faith by failing to preserve the original recordings and that
Officer Lynch’s testimony was barred by the best evidence rule. In addition,
appellant contends that any probative value Officer Lynch’s testimony had
was outweighed by the danger of unfair prejudice, confusion of the issues,
and misleading the jury. We disagree.
Our standard of review regarding the admissibility of
evidence is an abuse of discretion. “[T]he
admissibility of evidence is a matter addressed to the
sound discretion of the trial court and . . . an
appellate court may only reverse upon a showing
that the trial court abused its discretion.”
5
Remaining issues raised in appellant’s Rule 1925(b) statement, including a
challenge to the discretionary aspects of his sentence, have been abandoned
on appeal. (Id. n.2.)
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Commonwealth v. Weiss, 565 Pa. 504, 776 A.2d
958, 967 (2001) (citations omitted). “An abuse of
discretion is not a mere error in judgment but,
rather, involves bias, ill will, partiality, prejudice,
manifest unreasonableness, or misapplication of
law.” Commonwealth v. Hoover, 16 A.3d 1148,
1150 (Pa.Super.2011).
Commonwealth v. Collins, 70 A.3d 1245, 1251-1252 (Pa.Super. 2013),
appeal denied, 80 A.3d 774 (Pa. 2013).
The “Best Evidence Rule,” as articulated by the
common law, very literally only pertained to writings
or other documentary evidence. As our Court has
described the common-law rule in a prior case:
The “best evidence” rule limits the
method of proving the terms of a writing
to the presentation of the original
writing, where the terms of the
instrument are material to the issue at
hand, unless the original is shown to be
unavailable through no fault of the
proponent. McCormick, Evidence 560
(2nd ed. 1972). The Pennsylvania courts
use the “best evidence” rule when the
contents of documentary evidence are at
issue. Ledford v. Pittsburgh & Lake
Erie R.R. Co., 236 Pa.Super. 65, 345
A.2d 218 (1975). The best evidence rule
is controlling only if the terms of a
writing must be proved to make a case
or provide a defense. McCormick,
supra.
Commonwealth v. Fisher, 764 A.2d 82, 87-88 (Pa.Super. 2000), appeal
denied, 782 A.2d 542 (Pa. 2001), quoting Commonwealth v. Harris, 719
A.2d 1049, 1051 (Pa.Super. 1998).
However, the Pennsylvania Rules of Evidence have
expanded the scope of the common-law rule by
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applying it to other forms of evidence such as
recordings and photographs. The common-law rule
has been incorporated into and amplified by
Pennsylvania Rule of Evidence 1002 which provides:
[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.]
Id., quoting Pa.R.E. 1002 (rescinded and replaced Jan. 17, 2013, effective
March 18, 2013).
However, Pa.R.E. 1004 provides, inter alia, that “An original is not
required and other evidence of the content of a writing, recording, or
photograph is admissible if: (a) all the originals are lost or destroyed, and
not by the proponent acting in bad faith[.]” See Commonwealth v. Dent,
837 A.2d 571, 589 (Pa.Super. 2003), appeal denied, 863 A.2d 1143 (Pa.
2004) (“If the originals are not available at trial in criminal cases, through no
fault of the Commonwealth, secondary evidence is permissible.”) (citations
omitted).
At common law, the “best evidence” rule limited
proof of the terms of a writing to production of the
original document, if the terms of the instrument
were material to the issue under review, unless the
original was shown to be unavailable through no
fault of the proponent. Traditionally, Pennsylvania
courts applied the “best evidence” rule when the
content of documentary evidence was at issue; that
is, when the terms of the writing had to be proved to
make a case or provide a defense.
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Id. at 588-589, citing Fisher, supra; Binder on Pennsylvania Evidence
§ 10.02 at 613.
The trial court held an evidentiary hearing on the Commonwealth’s
motion on April 1, 2013. Officer Lynch testified that after reviewing the
surveillance tape, he asked the owner, Michael Kalathas (“Kalathas”), for a
copy. (Notes of testimony, 4/1/13 at 20.) Kalathas stated that he could
save it on his computer; however, he did not know how to copy or “burn” it
onto a compact disc (“CD”). (Id.) Kalathas said that he would have to call
the security company, TelePlus, and have them burn a copy onto a CD. (Id.
at 20-21.) Officer Lynch testified that he was unfamiliar with the security
system and would have been unable to burn a copy himself. (Id. at 21.)
Officer Lynch asked Kalathas to save a copy of the video, and Kalathas
assured him that it would be stored indefinitely. (Id.) Officer Lynch
testified, “I asked him if there was any kind of time frame of when it would
be deleted and he told me that they were stored indefinitely until he would
go and delete it from that point.” (Id.)
Approximately two months later, Officer Lynch was advised by the
district attorney’s office that they would need to preserve the video onto a
CD for trial. (Id. at 22.) Officer Lynch immediately contacted Kalathas and
asked him to have the security company copy the video onto a CD. (Id.) At
that point, Officer Lynch was informed by Kalathas that the hard drive had
been replaced and that he would need to contact the security company
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directly. (Id. at 23.) Officer Lynch called the security company and was
told they would have to look at the hard drive to determine whether the
video was still available. (Id.) Officer Lynch asked the security company to
contact Kalathas and get back to him if the footage was able to be saved,
but no one ever got back to him. (Id. at 23-24.)
Kalathas testified that after viewing the video, Officer Lynch asked him
to save the footage from two cameras, one showing the parking lot and one
showing the inside of the bar area. (Id. at 6.) Kalathas testified that he
saved the relevant portions onto a recording device connected to the camera
system. (Id.) However, he was not able to burn a copy onto a CD. (Id.)
According to Kalathas, approximately two months later, they were having
trouble with the security camera system and TelePlus came in and revamped
it. (Id. at 7.) As a result, Kalathas lost the video footage that Officer Lynch
asked him to save, as well as some other recordings. (Id.) Kalathas
testified that the video footage was not able to be recovered. (Id.)
Clearly, the video recordings were unavailable through no fault of the
Commonwealth. Officer Lynch watched Kalathas save them and was
assured that they would remain on the recording device. Immediately after
being informed by the district attorney’s office that they needed a CD of the
video, Officer Lynch contacted Kalathas. Unfortunately, in the interim, the
hard drive had been removed and the video was irretrievably lost. See
Dent, 837 A.2d at 590 (surveillance videotape at issue was unavailable at
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trial where the computer system failed soon after the incident and the hard
drive had to be completely replaced).
There is simply no evidence of bad faith misconduct on the
Commonwealth’s part. Appellant contends that Officer Lynch did not
immediately request Kalathas to contact TelePlus and have the video burned
onto a CD because of concerns about cost. Officer Lynch did testify that he
assumed the security company would charge Kalathas for burning the videos
onto a CD. (Notes of testimony, 4/1/13 at 22.) However, Officer Lynch
explained that at that point, he was not even sure the video footage would
be necessary and he did not want Kalathas to incur unnecessary cost. (Id.)
Officer Lynch testified that cost was not the only reason he did not ask
Kalathas to have a CD made at the outset. (Id. at 31.) Officer Lynch
explained,
It was my belief that there’s going to be a cost
incurred for calling up a security company to come
there to download that video. Based upon what
Mr. Kalathas said was that the video would be saved
indefinitely and that it was something if it would be
needed at a later time we would be able to attain
that. And, to be quite honest, very few of our cases
go to this point, that actually go to trial. So if we
were pursuing every single case with every piece of
evidence, you know, the people who are maintaining
these security systems, then when we do have a
stabbing or some other related nature there, we
sometimes will meet resistance.
Id. at 29-30.
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The bottom line is that Officer Lynch had no reason to believe the
video recordings would not be saved indefinitely, in case he needed them in
the future. He had no reason to anticipate any problems with the security
system. What occurred with the hard drive was an unforeseen
circumstance. The trial court accepted the testimony of Kalathas that the
security company inadvertently deleted the relevant video footage along
with several other recordings during its overhaul of the security system.
(Order, 4/3/14 at 2; docket #28.) The trial court found that while
Officer Lynch could have been more diligent in securing the recordings, his
actions did not constitute bad faith. (Id.)
Appellant also argues that the evidence had little probative value, as
Officer Lynch admitted he could not see inside the Jeep and did not know
how many people were inside when it pulled out of the bar parking lot.
(Appellant’s brief at 30.) Officer Lynch could not see inside the windows of
the Jeep and did not know who was driving. (Id.) In addition, Officer Lynch
was unfamiliar with Bear and so there was no reason to think he would be
able to identify him, even if he were present in the bar that night. (Id. at
31.) According to appellant, Officer Lynch’s testimony regarding the
contents of the video merely served to distract the jury from its critical
fact-finding determination of whether appellant was driving. (Id.) We
disagree.
Otherwise relevant evidence may be excluded if its
probative value is outweighed by its potential for
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prejudice. “The probative value of the evidence
might be outweighed by the danger of unfair
prejudice, confusion of the issues, misleading the
jury, undue delay, pointlessness of presentation, or
unnecessary presentation of cumulative evidence.”
Commonwealth v. Page, 965 A.2d 1212, 1220
(Pa.Super. 2009) (citing Commonwealth v. Dillon,
592 Pa. 351, 925 A.2d 131, 141 (2007) (citing
Pa.R.E. 403)). “The comment to Pa.R.E. 403
instructs that: ‘“Unfair prejudice” means a tendency
to suggest decision on an improper basis or to divert
the jury’s attention away from its duty of weighing
the evidence impartially.’” Id. (quoting Pa.R.E.
403). However, “[e]vidence will not be prohibited
merely because it is harmful to the defendant.”
Dillon, 925 A.2d at 141. “[E]xclusion is limited to
evidence so prejudicial that it would inflame the jury
to make a decision based upon something other than
the legal propositions relevant to the case.”
Commonwealth v. Owens, 929 A.2d 1187, 1191
(Pa.Super. 2007) (citing Commonwealth v.
Broaster, 863 A.2d 588, 592 (Pa.Super. 2004)).
Commonwealth v. Antidormi, 84 A.3d 736, 750 (Pa.Super. 2014),
appeal denied, 95 A.3d 275 (Pa. 2014).
Instantly, Officer Lynch’s testimony concerning the video surveillance
footage he viewed at Relax Lounge was relevant to prove appellant was the
driver of the Jeep the night of the accident. As recounted above,
Officer Lynch saw appellant and Stacey seated at a table in the bar by
themselves. They were not speaking with anyone. When they left the bar,
although other people left around the same time, they did not appear to be
interacting with anyone. Although the Jeep was out of camera range and
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Officer Lynch could not see how many people were in the Jeep when it left
the parking lot, the testimony was clearly relevant.6
In addition, we agree with the trial court that the probative value of
the testimony was not outweighed by its potential for unfair prejudice,
confusion of the issues or misleading the jury. (Order, 4/3/14 at 4.)
Officer Lynch admitted that he could not see inside the vehicle and did not
know how many people were inside. Officer Lynch could not see who was
driving the vehicle. Officer Lynch noted that appellant was wearing a
baseball hat inside the bar, but none was found at the scene of the accident,
which actually supports appellant’s story about taking Bear’s baseball hat to
make sure he would drive them home.
We also note that the trial court gave an appropriate cautionary
instruction to the jury. (Notes of testimony, 4/8/14 at 71-72.) The trial
6
The trial court determined that evidence of the content of the video
recordings was admissible because it was not closely related to a controlling
issue in the case, and was merely collateral. (Order, 4/3/14 at 2-3.) See
Pa.R.E. 1004(d) (“An original is not required and other evidence of the
content of a writing, recording, or photograph is admissible if: (d) the
writing, recording, or photograph is not closely related to a controlling
issue.”). We respectfully disagree with this analysis. Clearly, the evidence
was being admitted to establish that appellant was driving the vehicle, which
is an essential element of the crimes charged. Appellant did not dispute that
he was drinking that night and was inside the vehicle when it crashed. The
only issue at trial was who was driving the vehicle. Therefore, the evidence
was not merely collateral. However, it is well established that this court may
affirm the trial court on any basis. See Commonwealth v. Harper, 611
A.2d 1211, 1213 n.1 (Pa.Super. 1992) (this court “may affirm the decision
of the trial court if there is any basis on the record to support the trial
court’s action. This is so even if we rely upon a different basis in our
decision to affirm[]”) (citations omitted).
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court did not err in granting the Commonwealth’s motion in limine and
allowing Officer Lynch to testify regarding the content of the surveillance
videos.
Next, appellant challenges the weight of the evidence to support the
jury’s verdict. According to appellant, a finding that he was driving the Jeep
at the time of the accident amounts to little more than conjecture and
speculation. (Appellant’s brief at 33.) Appellant argues that there was no
direct evidence to prove he was driving the Jeep at the time of the accident.
(Id. at 34.) Appellant points to Officer Lynch’s testimony regarding his
observations of the Relax Lounge video footage as corroborating his version
of events, i.e., reentering the bar to find Bear. (Id. at 35.) Appellant points
out that Ballard, who was drinking that evening, was unable to positively
identify appellant as the man he encountered at the scene. (Id. at 37.)
Appellant argues that he and Stacey offered the only first-person,
eyewitness testimony of who was driving the vehicle that night. (Id. at 36.)
A weight of the evidence claim concedes
that the evidence is sufficient to sustain
the verdict, but seeks a new trial on the
ground that the evidence was so
one-sided or so weighted in favor of
acquittal that a guilty verdict shocks
one’s sense of justice.
Commonwealth v. Lyons, Pa. , 79 A.3d
1053, 1067 (2013).
The Pennsylvania Supreme Court has
reiterated the proper standard of review of a weight
claim as follows:
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A motion for a new trial based on a claim
that the verdict is against the weight of
the evidence is addressed to the
discretion of the trial court. A new trial
should not be granted because of a mere
conflict in the testimony or because the
judge on the same facts would have
arrived at a different conclusion. Rather,
“the role of the trial judge is to
determine that ‘notwithstanding all the
facts, certain facts are so clearly of
greater weight that to ignore them or to
give them equal weight with all the facts
is to deny justice.’” It has often been
stated that “a new trial should be
awarded when the jury’s verdict is so
contrary to the evidence as to shock
one’s sense of justice and the award of a
new trial is imperative so that right may
be given another opportunity to prevail.”
An appellate court’s standard of review
when presented with a weight of the
evidence claim is distinct from the
standard of review applied by the trial
court:
Appellate review of a weight
claim is a review of the
exercise of discretion, not of
the underlying question of
whether the verdict is against
the weight of the evidence.
Because the trial judge has
had the opportunity to hear
and see the evidence
presented, an appellate court
will give the gravest
consideration to the findings
and reasons advanced by the
trial judge when reviewing a
trial court’s determination
that the verdict is against the
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weight of the evidence. One
of the least assailable
reasons for granting or
denying a new trial is the
lower court’s conviction that
the verdict was or was not
against the weight of the
evidence and that a new trial
should be granted in the
interest of justice.
This does not mean that the exercise of
discretion by the trial court in granting or
denying a motion for a new trial based
on a challenge to the weight of the
evidence is unfettered. In describing the
limits of a trial court’s discretion, we
have explained:
The term “discretion” imports
the exercise of judgment,
wisdom and skill so as to
reach a dispassionate
conclusion within the
framework of the law, and is
not exercised for the purpose
of giving effect to the will of
the judge. Discretion must
be exercised on the
foundation of reason, as
opposed to prejudice,
personal motivations, caprice
or arbitrary actions.
Discretion is abused where
the course pursued
represents not merely an
error of judgment, but where
the judgment is manifestly
unreasonable or where the
law is not applied or where
the record shows that the
action is a result of partiality,
prejudice, bias or ill-will.
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Commonwealth v. Clay, Pa. , 64 A.3d
1049, 1054-1055 (2013) (citations omitted)
(emphasis in original).
Commonwealth v. Orie, 88 A.3d 983, 1015-1016 (Pa.Super. 2014),
appeal denied, 99 A.3d 925 (Pa. 2014).
In denying appellant’s post-sentence weight of the evidence claim, the
trial court determined there was sufficient circumstantial evidence for the
jury to find that appellant was, in fact, the driver of the vehicle. As
recounted in depth supra, the video footage from the Relax Lounge did not
show appellant and Stacey speaking with anyone at the bar. When Ballard
arrived on scene shortly after the crash, he encountered appellant, who told
him not to call the cops and to say a Mexican did it. As the trial court states,
while Ballard could not identify appellant at trial, the jury could fairly make
that inference. (Trial court opinion, 10/28/14 at 3.) Appellant fled from the
scene and was discovered by Corporal Helsel a short distance away, bleeding
from the head. There were no other footprints in the freshly fallen snow
leading away from the Jeep. When he was brought back to the crash site,
appellant told Officer Lynch that there were four people in the car, himself,
Stacey and two others whom he had never met before. Appellant also
related that he was seated directly behind Stacey, in the right rear
passenger seat. Later, after Officer Lynch told him that blood and hair was
found on the interior windshield, appellant changed his story and stated that
he was sitting in the middle of the back seat, giving his wife a kiss when the
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accident occurred and he was thrown into the windshield. Also, appellant
stated for the first time that an individual named “Bear,” who police could
not locate, was actually driving the car. Appellant’s DNA matched blood
recovered from inside the windshield and also from the driver’s side door.
Clearly, the jury rejected as not credible appellant’s self-serving story
about someone named “Bear” driving the Jeep. There was simply no
evidence, other than the testimony of appellant and his wife Stacey, to
support the theory that anyone else was in the vehicle. The jury’s verdict
hardly shocks the judicial conscience. The trial court did not abuse its
discretion in denying appellant’s weight of the evidence claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/22/2016
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