Com. v. Scott, D.

J-S41022-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DANIELL MONIQUE SCOTT :
:
Appellant : No. 215 MDA 2020
Appeal from the Judgment of Sentence Entered December 31, 2019
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0000752-2019
BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 6, 2020
Daniell Monique Scott appeals from the judgment of sentence entered
after a jury found her guilty of Retail Theft and Conspiracy.1 Scott challenges
the admission of testimony that she claims was precluded by the best evidence
rule. We affirm based on the trial court’s opinion.
In December 2018, Scott was arrested and charged with retail theft and
conspiracy. She and a co-defendant proceeded to a joint jury trial at which a
store employee, Andrew Young, testified that he told police that Scott and her
co-defendant had attempted to steal a hoverboard. Trial Ct. 1925(a) Op., filed
4/22/20, at 1. Young said that he had viewed a surveillance video and given
the police officer copies of timestamped, still photos from the video. He stated
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3929(a)(1) and 903, respectively.
J-S41022-20
that following the incident, when he attempted to transfer the surveillance
video to a disk for the police, he discovered that the video and other files on
the system were corrupted. He explained that such corruption cannot result
from human error. Young then testified about the contents of the video, over
a defense objection based on the best evidence rule.
The jury found Scott guilty of the above offenses and the trial court
sentenced Scott to six to 12 months’ incarceration. Scott filed a post sentence
motion seeking a new trial due to, among other things, an alleged best
evidence rule violation. The court denied the motion and this timely appeal
followed. Scott raises one issue: “Whether the Trial Court erred by not
applying the best evidence rule to prohibit the testimony of witnesses at trial
regarding the contents of a surveillance video which was not presented to the
defense or presented at trial.” Scott’s Br. at 4 (footnote omitted).
We review the admission of evidence for an abuse of discretion.
Commonwealth v. Green, 162 A.3d 509, 516 (Pa.Super. 2017) (en banc).
Admission of evidence depends on its relevance. “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.” Id. (quoting Commonwealth v. Resse, 31 A.3d
708, 716 (Pa.Super. 2011) (en banc)).
The best evidence rule 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.”
-2-
J-S41022-20
Pa.R.E. 1002. If the original has been lost or destroyed, other evidence is
admissible to prove the content of the writing, recording, or photograph, so
long as the loss or destruction of the original is not by the proponent of the
other content having acted in bad faith. See Pa.R.E. 1004; Commonwealth
v. Dent, 837 A.2d 571, 589 (Pa.Super. 2003).
Here, the trial court determined that the Commonwealth was not
required to produce the original surveillance footage because it had been
corrupted. The court concluded that “the Commonwealth did not act in bad
faith in failing to preserve the video evidence” and it therefore allowed into
evidence Young’s testimony. See 1925(a) Op. at 16.
After a review of the parties' briefs, the certified record, and the relevant
law, we find no error in the trial court's analysis. We thus affirm based on the
well-reasoned opinion of the Honorable Maria Musti Cook. We add only that
Scott’s reliance on Commonwealth v. Lewis, 623 A.2d 355, 359 (Pa.Super.
1993), is misplaced. There, we held that the explanation for the loss of a
videotape subject to the best evidence rule – it could not be found because
the filing system for storing tapes was “imprecise”– was “unsatisfactory” and
“secondary evidence” about the content of the videotape was therefore
inadmissible. Here, the loss of the video was not due to negligence. Rather,
the testimony (which the trial court credited) was that it resulted from
computer “corruption” that human error cannot cause.
Judgment of sentence affirmed.
-3-
J-S41022-20
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/06/2020
-4-
Circulated 10/14/2020 08:46 AM
IN THE COURT OF COMMON PLEAS
OF YORK COUNTY,
PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF
CP-67-C R-0752-2019
PENNSYLVANIA
V.
DANIELL MONIQUE SCOTT,
Defendant/Appellant
STATEMENT OF LOWER COURT
PURSUANT TO PA.R.A.P. 1925(a)
AND NOW, this 22nd day of April, 2020, upon
receipt of a notice
that an appeal has been filed in this matter,
and in consideration of the
Statement of Matters Complained of on Appeal, filed on
behalf of Daniell
Monique Scott (" Defendant"), by and through her
attorney, Marc J. Semke,
Esquire, the undersigned files this statement pursuant
to PA.R.A.P. 1925(a).
The reasons for this Court's denial of
Defendant's post -sentence
motion can be found herein.
Page 1 of 18
Factual and Relevant Procedural History:
Defendant was charged with retail theft-take
merchandise ( Count
1) under 18 PA. CONS. STAT. §
3929(a)( 1), and criminal conspiracy to retail
theft (Count 2) under 18 PA. CONS. STAT. §§
903(a)( 1) and 3929(a)( 1).
On March 13, 2019, this Court appointed Attorney Christopher
Moore, Esquire, to represent Defendant in the
trial proceedings.
At 6:07 p.m. on December 12, 2018, Officer
Adam Bruckhart was
dispatched to Walmart, 1000 Town Center Dr. York, PA
17408, for a retail
theft. Upon arrival, Andrew Young, a loss
prevention officer (" LPO"),
reported that Defendant and her co-defendant, Eric
Santos, attempted to
steal a hoverboard valued at $241.68.
A criminal jury trial took place from
November 19 to 20, 2019. At
the conclusion of the jury trial, the jury
unanimously convicted Defendant,
and her co-defendant, Eric Santos, guilty of both
counts.
A sentencing hearing was held on
December 31, 2019. Defendant
was sentenced to 6 to 12 months' incarceration
in the York County Prison.
Page 2 of 18
Upon completion of her period of
incarceration or her parole, Defendant is
required to complete the Courage to
Change Program.
On January 8, 2020, Attorney
Marc J. Semke, Esquire, entered
his
appearance as Defendant's counsel of
record. On January 10, 2020,
Defendant, by and through Attorney
Semke, filed post -sentence motions
for a new trial, judgment of
acquittal, and bail after sentencing. On
January
22, 2020, this Court Defendant's
post -sentence motions. A hearing to
address bail was scheduled on February 3,
2020.
On February 3, 2020, Defendant, by
and through Attorney Semke,
filed a notice of appeal to the
Superior Court from the judgment of
sentence on December 31, 2019, and the
denial of her post -sentence motion
on January 22, 2020. At the same
time, Defendant filed a petition for
leave
to file an appeal in forma pauperis,
which was granted.
On February 5, 2020, this Court
issued an order directing Defendant
to file a statement of errors
complained of on appeal. After an extension
of
time to file, Defendant filed the Rule
1925(b) statement on March 25, 2020.
In her Rule 1925(b) statement,
Defendant raises four issues:
Page 3 of 18
1. The Commonwealth presented
insufficient evidence to
prove beyond a reasonable doubt that
Appellant was guilty of
Retail Theft. There was no proof
Appellant intended to
deprive the merchant of possession of
the merchandise as
Appellant had not passed the entrance to the
customer service
desk.
2. The Commonwealth presented insufficient
evidence to
prove beyond a reasonable doubt that
Appellant was guilty of
conspiracy to commit Retail Theft. There
was no proof
Appellant intended to deprive the merchant
of possession of
the merchandise, and no proof
Appellant had agreed or
conspired with the co-defendant to commit Retail
theft.
3. The Trial Court erred by allowing
hearsay testimony
regarding the contents of the surveillance video
that was not
provided to defense counsel or presented at
trial.
4. The Trial Court erred by not applying
the best evidence
rule to prohibit the testimony of
witnesses at trial regarding
the contents of a surveillance video.
Rule 1925(b) Statement, 03/25/2020.
Discussion:
I. The evidence and testimony presented
at trial was sufficient in
proving Defendant's intent to deprive the
merchant of possession
of the merchandise. The
Commonwealth sustained its burden in
a conviction for retail theft.
Defendant alleges that the Commonwealth
presented insufficient
evidence to prove beyond a reasonable doubt
that Defendant was guilty of
retail theft. Rule 1925(b) Statement, 03/25/2020, ¶ 1. Specifically,
Page 4 of 18
Defendant argues that the Commonwealth
failed its burden in proving
Defendant's intent to deprive the merchant of possession of the
merchandise " as [ Defendant] had not passed the
entrance to the customer
service desk." Id. This Court finds
Defendant's claim unsupported by the
evidence of record. Thus, no relief is due.
Regarding Defendant's sufficiency claim, the
evidence must be
reviewed in light most favorable to the verdict winner, giving the
prosecution the benefit of all reasonable inferences
to be drawn from the
evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 ( Pa.
2000).
Where the evidence offered to support the
verdict contradicts the physical
facts, contravenes human experience and the
laws of nature, the evidence is
insufficient as a matter of law. Id. Evidence is sufficient to support the
verdict when it establishes each material element
of the crime charged and
the commission thereof by the accused,
beyond a reasonable doubt. Id.18 PA. CONS. STAT. § 3929(a)( 1)
defines retail theft as follows:
A person is guilty of a retail theft if
she: takes possession of,
carries away, transfers or causes to be
carried away or
transferred, any merchandise displayed, held, stored or
offered
for sale by any store or other retail
mercantile establishment
with the intention of depriving the merchant of
the possession,
Page 5 of 18
use or benefit of such merchandise without paying the full
retail value thereoff.]
18 PA. CONS. STAT. § 3929(a)( 1).
The Pennsylvania Superior Court has recognized that "
intent can be
proven by direct or circumstantial evidence; it may be inferred from
acts or
conduct or from the attendant circumstances." Commonwealth v.
Franklin,
69 A.3d 719, 723 ( Pa. Super. 2013).
This Court finds that there was sufficient evidence for the jury
to
to deprive Walmart of the
possession of the hoverboard.
Both Defendant and co-defendant, Eric Santos, provided testimony
at trial. Defendants testified that they went to the store with a vacuum
cleaner, and a receipt to exchange it for a hoverboard. Id. at 191-92.
However, all three witnesses of the Commonwealth-Sabrina
Santiago,
Andrew Young, and Sergeant Adam Bruckhart-offered drastically
different testimonies from both defendants' statement.
Sabrina Santiago, customer host for Walmart, provided her
testimony for the Commonwealth at trial. Sabrina Santiago was
trained to
Page 6 of 18
look for signs of theft to help Walmart prevent
thefts. N.T. Trial,
11/19/2019, at 90-91. Based on her testimony, Sabrina Santiago was
stationed at the general merchandise exit of Walmart
when Defendant and
Eric Santos came to her door. Id. at 92-94. She noticed that Defendant
and Eric Santos had an expensive hoverboard in
their cart. Id. at 92-93.
She then stopped them and asked for a receipt.
Id. at 93. During the entire
course of the interaction, neither Defendant nor Eric
Santos was able to
produce a receipt for the hoverboard. Id. Sabrina Santiago further
explained that Defendant and Eric Santos had to
turn in the opposite
direction of the customer service desk in order to get to her.
Id. at 98.
Andrew Young, loss prevention officer for Walmart at the
time of
incident, also presented his testimony for the
Commonwealth at trial.
Andrew Young stated that he was called over by Sabrina
Santiago. N.T.
Trial, 11/20/2019, at 136-37. According to his testimony, Defendant and
Eric Santos told Andrew Young that " they brought
the hoverboard and a
vacuum cleaner in for a return and that they were items
that belong to
them." Id. at 138-39. However, at no time did Defendant
and Eric Santos
provide a receipt for the hoverboard to Andrew Young. Id. at 147. Also,
Page 7 of 18
Andrew Young pointed out that he watched the
surveillance video twice to
confirm that Defendant and Eric Santos came into the
store only with a
vacuum cleaner. Id. at 139-42.
In addition, Andrew Young provided his testimony as
to the contents
of the surveillance video at trial, as well as the timestamped still
photographs from the video. Based on Andrew Young's testimony and
exhibits proffered at trial, Defendant and Eric Santos did enter
the store,
but only with the vacuum cleaner." Id. at 140-41. Defendant and Eric
Santos then placed the vacuum cleaner into a shopping cart.
Id. at 141.
There was nothing else in that cart besides the vacuum cleaner.
Id. at 142.
Defendant and Eric Santos proceeded to the toy department with
only the
vacuum in the cart and no hoverboard. Id. at 143. In the toy department,
after Defendant and Eric Santos selected the hoverboard
from the shelf,
they placed it on the bottom of their cart. Id. at 144. Defendant and Eric
Santos subsequently went towards the front of the store.
Id. " They then
both proceeded to walk through the [ self -checkouts]
and attempted to exit
the store." Id.
Page 8 of 18
Defendants disagreed with Andrew Young. Co-defendant, Eric
Santos, testified that, after he and Defendant placed the hoverboard
underneath the cart, they " did [ their] little shopping," and purchased
knickknacks for the house," " toiletries," or deodorant. Id. at 192. Eric
Santos emphasized that they paid for their items at
the checkout. Id.
Defendant also offered her testimony, consistent with Eric Santos'
statement. Id. at 200-01.
However, evidence and testimony proffered at trial
showed that
Defendant and Eric Santos walked towards the front of the
store almost
instantly after they placed the hoverboard into their cart. The
timestamped
photographs presented at trial indicated that, there were no other
items
except the vacuum cleaner in Eric Santos' cart around 5:31
p.m. Exhibit 3.
Defendant and Eric Santos selected the hoverboard and
placed it on the
bottom of their cart around 5:33 p.m. Exhibit 4. Police
were called at 6:07
p.m. Both Defendant and Eric Santos confirmed that it
was approximately
30 minutes that they stood at the front of the store after they were
confronted by Sabrina Santiago. Id. at 196, 204.
Page 9 of 18
Officer Adam Bruckhart, Sergeant of the West Manchester
Township Police Department, provided his testimony
at trial. Sergeant
Bruckhart indicated that he was able to find Defendant
in the parking lot
and talk to her. Id. at 167. Sergeant Bruckhart stated that he asked
Defendant whether she had a receipt for the hoverboard.
Id. at 168. " She
told me that she did." Id. However, " she was not able to find the
hoverboard receipt." Id. Consistent with Andrew Young's testimony,
Sergeant Bruckhart provided that:
Defendant] explained to me that she arrived at the store with
her boyfriend. They came in an Uber. When they
arrived at
the store, they had a vacuum cleaner and a hoverboard in
their
possession and that they took these items from the Uber into
the store. Then they intended to exchange those items
for a
return and had not done so and that they were leaving the
merchandise that they had brought in.
Id. at 169.
Considering the foregoing evidence and testimony offered at
trial,
this Court finds Defendant and her co-defendant's
testimony not credible.
Under Franklin, there was ample circumstantial
evidence proving that
Defendant intentionally took possession of the hoverboard,
without paying
the full retail value.
Page 10 of 18
Therefore, under Widmer, viewing the
combination of evidence in
the light most favorable to the
Commonwealth as verdict winner, the jury
could properly infer that Defendant had the
intent to deprive the Walmart
of its possession of the hoverboard.
Accordingly, Defendant's first claim
merits no relief.
II. The evidence and testimony presented at
trial was sufficient in
proving that Defendant had agreed or
conspired with the co-
defendant to commit retail theft.
Defendant asserts that the Commonwealth
presented insufficient
evidence to prove beyond a reasonable doubt that
Defendant was guilty of
conspiracy to commit retail theft. Rule 1925(b)
Statement, 03/25/2020, ¶ 2.
Specifically, Defendant argues that there was no proof
Defendant " had
agreed or conspired with the co-defendant to
commit retail theft." Id.
Defendant's claim has no basis.
Pursuant to 18 PA. CONS. STAT. § 903(a), conspiracy is
defined as
follows:
A person of conspiracy with another person or
is guilty
persons to commit a crime if with the intent of
promoting or
facilitating its commission he:
1) agrees with such other person or persons
that they or one
or more of them will engage in conduct
which constitutes such
crime or an attempt or solicitation to commit such
crime[.]
Page 11 of 18
18 PA. CONS. STAT. § 903(a)( 1).
The Pennsylvania Superior Court,
in Commonwealth v. Lambert,
acknowledged that a conspiracy can be proved
by circumstantial evidence:
A conspiracy is almost always
proved through circumstantial
evidence. The conduct of the parties and
the circumstances
surrounding their conduct may create a
web of evidence
linking the accused to the alleged
conspiracy beyond a
reasonable doubt.
795 A.2d 1010, 1016 ( Pa. Super.
2002).
The circumstantial evidence in this
case, as previously outlined,
supports the conclusion that Defendant was
involved in a conspiracy with
her co-defendant, Eric Santos, to
commit the retail theft at the Walmart.
Defendants told both Andrew Young and Sergeant
Bruckhart that they had
brought the vacuum cleaner and the hoverboard
into the store for exchange.
This was contradicted by the photographic evidence. Defendant's
statements are evidence of the conspiracy.
Therefore, under Widmer,
Defendant's second claim is meritless.
Page 12 of 18
III. Trial Court did not err in admitting the
testimony regarding the
contents of the surveillance video. Trial Court
did not err in not
applying the best evidence rule.
Defendant argues that this Court erred by
allowing the testimony as
to the contents of the surveillance video,
which was not provided to the
defense counsel or presented at trial. Rule
1925(b) Statement, 03/25/2020,
3. Further, Defendant alleges that this Court
erred in not applying the
best evidence rule by admitting the testimony
of witnesses at trial regarding
the contents of the surveillance video. Id. ¶
4.
The best evidence rule in the
Pennsylvania Rules of Evidence
provides that: " 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." Pa.
R. Evid. 1002.
With respect to the " missing evidence," the
Pennsylvania Supreme
Court has explained that:
The Due Process Clause of the Fourteenth Amendment
requires defendants be provided access to certain
kinds of
evidence prior to trial, so they may ' be afforded a
meaningful
opportunity to present a complete defense.' This
guarantee of
access to evidence requires the prosecution to
turn over, if
requested, any evidence which is exculpatory and
material to
Page 13 of 18
guilt or punishment, and to turn over
exculpatory evidence
which might raise a reasonable doubt about a
defendant's guilt,
even if the defense fails to request it. If a
defendant asserts a
Brady or Agurs violation, he is not required to
show bad faith.
There is another category of constitutionally
guaranteed access
to evidence, which involves evidence
that is not materially
exculpatory, but is potentially useful, that is
destroyed by the
state before the defense has an
opportunity to examine it.
When the state fails to preserve evidence that
is ' potentially
useful,' there is no federal due process
violation ' unless a
criminal defendant can show bad faith on the
part of the
police.' Potentially useful evidence is that of
which ' no more
can be said than that it could have been
subjected
to tests, the
results of which might have exonerated the
defendant.' In
evaluating a claim that the Commonwealth's
failure to
preserve evidence violated a criminal defendant's
federal due
process rights, a court must first determine
whether the
missing evidence is materially exculpatory
or potentially
useful.
Commonwealth v. Chamberlain, 30 A.3d 381, 402 ( Pa.
2011) ( internal
citations omitted).
In Commonwealth v. Williams, the
Pennsylvania Superior Court
reversed the trial court's decision in suppressing
testimony relating to the
contents of a surveillance video that had been lost.
154 A.3d 336, 341 ( Pa.
Super. 2017). The Williams court reasoned that the testimony
relating to
the contents of the video should be allowed
because " the lost surveillance
Page 14 of 18
video footage was only potentially useful
and the police did not act in bad
faith in failing to preserve it." Id. (
emphasis added).
Andrew Young offered his testimony as to the
unavailability of the
surveillance video at trial. Andrew Young had been a loss prevention
officer at the Walmart for four years at the time of
the incident. N.T. Trial,
11/19/2019, at 101. He confirmed that he is familiar with
the surveillance
system in the Walmart. Id. at 102. He had previously utilized the system
as a part of his job as a loss prevention officer.
Id.
Andrew Young testified that he did save the
footage before burning
the footage onto a disk. Id. at 103-04. When he was told by Sergeant
Bruckhart that he was on his way to pick up the
discs, Andrew Young
attempted to burn the footage onto a disk for his arrival.
Id. However,
when he went to do that, Andrew Young
discovered that footage along
with other saved files had been corrupted. Id.
at 104. He pointed out that,
never in the four years of being a loss prevention
officer, had he been able
to recover video with this type of corruption.
Id. In addition, Andrew
Page 15 of 18
Young denied that he caused the corruption in
the video footage. Id. Also,
he stated that human error cannot cause
this type of corruption. Id. at 108.
In addition, Sergeant Bruckhart provided
his testimony that he
followed the standard procedure. Id. at 115. He
stated that it was not the
standard procedure to obtain a copy of the video during
the incident where
there is someone in custody. Id. He further stated
that he did not cause the
video to be unavailable for the trial. Id. at 116. Both Andrew Young and
Sergeant Bruckhart testified that they had an
opportunity to watch the
video on the day of incident. Id. at 102, 115.
Considering that the Commonwealth provided the
timestamped still
photographs from the video of the incident; parties
stipulated that both
defendants were in the Walmart on the date of incident;
and there was no
dispute as to the existence of the hoverboard in the
cart, this Court finds
that the surveillance video is not materially
exculpatory under Chamberlain.
Further, based on the testimony made by
Andrew Young and
Sergeant Bruckhart at trial, the Commonwealth did
not act in bad faith in
failing to preserve the video evidence. Like Williams, since the video
Page 16 of 18
evidence herein was only potentially useful and
the Commonwealth did not
act in bad faith in not preserving the
evidence, this Court concludes that
Andrew Young and Sergeant Bruckhart were
properly allowed to testify
regarding their observations of the surveillance
video. See N.T. Trial,
11/19/2019, at 126-27.
Accordingly, Defendant's claim as to the admissibility of the
testimony regarding the contents of the surveillance
video, again, merits no
relief.
Conclusion:
Based on the above reasons, this Court
respectfully urges affirmance
of this Court's judgment of sentence entered on
December 31,2019.
The Clerk of Courts is directed to provide
notice of the entry of this
Statement to the York County District Attorney's
Office, Attorney Marc J.
Semke, Esquire, Counsel for Defendant and
Defendant, Daniell Monique
Scott.
Page 17 of 18
BY THE COURT,
MARIA MUSTI COOK, JUDGE
Page 18 of 18