Com. v. Moyer, C.

J-S63018-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CURTIS ROBERT MOYER
Appellant No. 254 MDA 2014
Appeal from the Judgment of Sentence July 29, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0008594-2012
BEFORE: BOWES, J., PANELLA, J., and PLATT, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 06, 2014
Appellant, Curtis Robert Moyer, appeals from the judgment of
sentence entered July 29, 2013, in the Court of Common Pleas of York
County. We affirm.
Robert Holjes parked his car and entered a Giant supermarket. While
shopping he was paged to see the store manager. The store manager took
Holjes outside to the parking lot and showed him damage to his car. There
was damage to the driver’s side door, to the panel under that door, and to
the hood of the car. The manager informed Holjes that the store had
security cameras and permitted him to watch a segment of the surveillance
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
Retired Senior Judge assigned to the Superior Court.
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video. Holjes left the store, but returned later to canvas the area for the
suspect.
Eventually he located a man, later identified as Moyer, and asked him
if he recognized his car. Moyer said he did, responding that he had earlier
been sitting on it in the parking lot of the nearby supermarket. To Holjes,
Moyer did not “seem completely coherent” and Holjes offered to drive him to
the police station. N.T., Trial, 4/1-2/13, at 125. Moyer declined the ride to
the police station, but agreed to drive to Giant where Holjes took Moyer to
the store manager.
The manager called the police. To Officer Michael Bennage, Moyer
seemed to be in “an altered state of reality,” looked “disheveled,” his pants
were soaked, and he was holding a rolled newspaper up to his one eye. Id.,
at 131, 138. Officer Bennage asked Moyer why he thought the police were
there and Moyer responded because of what he did to the car—that he sat
on the car, repeatedly, and pushed a shopping cart into its driver’s side
door. Officer Bennage arrested Moyer.
The police never obtained the security camera footage. Officer
Bennage was under the impression that another officer at the scene, Officer
William Buzzard, requested the footage from the store. When the footage
failed to arrive at the police department, Officer Bennage never followed up
with the store, and the loss prevention officer at the store never contacted
the police department. Officer Buzzard acknowledged that there was a
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failure to request the footage due to a miscommunication between him, the
police department and the store, but that when he left the store that night
he thought someone had requested the footage. He explained:
Within our police department, we have a system of checks and
balances to make sure that that’s followed up with [i.e.,
obtaining the footage], and I do take responsibility for not
having the video. It was a – an error on my part that I didn’t get
it. I was under the impression I was going to get it, and the
system of checks and balances that we used also failed, and we
just don’t have it.
Id., at 141. The footage, stored on a 30-day loop, was eventually copied
over.
Prior to trial, with the surveillance footage irretrievably lost, the
Commonwealth filed a motion in limine seeking to admit oral testimony as to
what Officer Buzzard and the store manager observed on the footage. The
trial court held a hearing on the matter and ruled, citing Rule 1004 of the
Pennsylvania Rules of Evidence, that it would permit the testimony as the
Commonwealth did not act in bad faith and the footage was irretrievably
lost.
The matter proceed to a jury trial. Officer Buzzard and the store
manager testified as to what they observed on the surveillance footage, and
the jury convicted Moyer of criminal mischief and found him not guilty of
public drunkenness. The trial court sentenced Moyer to time served to 23
months’ incarceration.
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Moyer filed a timely post-sentence motion, and then a notice of appeal
on February 6, 2014. On May 14, 2014, this Court ordered Moyer to show
cause why this appeal should not be dismissed. On May 21, 2014, Moyer
filed an answer indicating he had filed a praecipe in the trial court for entry
of an order denying the post-sentence motion by operation of law. On the
same day, the trial court entered an order denying the post-sentence motion
by operation of law.
Preliminarily, we must first determine whether this appeal is properly
before us. Rule 905 of the Pennsylvania Rules of Appellate Procedure
provides, that “[a] notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5).
Before entry of the May 21, 2014 order denying Moyer’s post-sentence
motion by operation of law, his February 6, 2014 notice of appeal would
have been premature. See Commonwealth v. Claffey, 80 A.3d 780, 783
(Pa. Super. 2013) (appeal filed while timely post-sentence motions are
pending may be premature). See also Pa.R.Crim.P. 720, Note. Because the
trial court subsequently entered the final order, however, we will treat the
notice of appeal as filed on May 21, 2014. We proceed to the merits.
On appeal, Moyer maintains that the trial court erred in not applying
Rule 1002 of the Pennsylvania Rules of Evidence, commonly known as the
Best Evidence Rule. See Appellant’s Brief, at 4.
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Our standard of review is as follows.
In evaluating the denial or grant of a motion in limine, our
standard of review is well-settled. When ruling on a trial court’s
decision to grant or deny a motion in limine, we apply an
evidentiary abuse of discretion standard of review. A trial court
has broad discretion to determine whether evidence is
admissible, and a trial court’s ruling regarding the admission of
evidence will not be disturbed on appeal unless that ruling
reflects manifest unreasonableness, or partiality, prejudice, bias,
or ill-will, or such lack of support to be clearly erroneous. If the
evidentiary question is purely one of law, our review is plenary.
Commonwealth v. Belani, ___ A.3d ___, ___, 2014 WL 4748045, *3 (Pa.
Super., filed September 25, 2014) (citations and quotation marks omitted).
The Best Evidence Rule 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.” Pa.R.E. 1002. Rule 1004, which the trial court relied on, is a rule
that provides otherwise. That rule states that “[a]n 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[.]” Pa.R.E. 1004(a).
The trial court found that secondary evidence was admissible, under
Rule 1004, as the surveillance footage was irretrievably lost and the
Commonwealth did not act in bad faith. It is undisputed that the surveillance
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footage is irretrievably lost. The admission of the secondary evidence turns
on whether the Commonwealth, through the police, acted in bad faith. 1
“Bad faith” is defined as “[d]ishonesty of belief or purpose[.]” BLACK’S
LAW DICTIONARY 149 (8th ed. 2004). The testimony established that the police
simply failed to timely request the footage. As Officer Buzzard explained it,
“the system of checks and balances failed.” The trial court found that the
Commonwealth did not act in bad faith. We agree. This is negligence, not
bad faith. See, e.g., Montoya v. Romero, 956 F. Supp. 2d 1268, 1280
(D.N.M. 2013) (“[N]egligent destruction of the original or the possibility that
the proponent tampered with the secondary evidence is likely insufficient for
bad faith—the purposeful destruction or withholding of original[s] ... and the
fabrication of secondary evidence will support a finding of bad faith.”)
(internal quotation marks omitted).2
Unfortunately, this negligence led to the destruction of the evidence.
But as the Commonwealth did not act in bad faith we cannot find that the
trial court abused its discretion in admitting the secondary evidence in the
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1
Moyer relies heavily on Commonwealth v. Ware, 623 A.2d 355 (Pa.
Super. 1993), which dealt solely with the application of the old common law
Best Evidence Rule and no exceptions thereto. The Best Evidence Rule was
codified in the Rules of Evidence in 1998 and while the “rule corresponds to
the common law,” Pa.R.E. 1002 Comment, also codified was Rule 1004,
which specifically provides for the admissibility of other secondary evidence.
Ware is simply inapposite.
2
“This rule is identical to F.R.E. 1004.” Pa.R.E. 1004 Comment.
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form of the testimony of Officer Buzzard and the store manager. See 1
WEST’S PA. PRAC., EVIDENCE § 1004-1 (4th ed.) (“If presentation of the original
is excused under this rule, the proffering party may offer any available
evidence of the content of the original.”); United States v. Ross, 33 F.3d
1507, 1513 (CA 11 1994) (“Once the terms of Rule 1004 are satisfied, the
party seeking to prove the contents of the recording—here, the
government—may do so by any kind of secondary evidence.”).3
Judgment of sentence affirmed.
Judge Bowes joins in the memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2014
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3
Moyer argues, “[w]ithout the video there was no effective way for the
Commonwealth to establish Moyer’s intent.” Appellant’s Brief, at 12. But
there was. That evidence came from the secondary evidence of the
testimony of Officer Buzzard and the store manager explaining what they
observed in the video. See, e.g., N.T., Trial, 4/1-2/13, at 148 (store
manager noting that Moyer laid on the hood of the car and took a shopping
cart and “then pushed [it] into the yellow Honda[]”); id., at 156 (Officer
Buzzard noting that Moyer “reared back and shoved the cart forcefully into
the car[]”). Moyer had the opportunity to cross-examine both of these
witnesses.
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