Opinion
665 MDA 2023 J-S43042-23
11-18-2024
COMMONWEALTH OF PENNSYLVANIA v. JOSE A. DEJESUS-PEREZ Appellant
Benjamin D. Kohler, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered April 6, 2023 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000553-2022.
Benjamin D. Kohler, Esq.
BEFORE: McLAUGHLIN, J., KING, J., and COLINS, J.[*]
MEMORANDUM
McLAUGHLIN, J.:
Jose A. DeJesus-Perez appeals from the judgment of sentence following his conviction for driving under the influence of a controlled substance - first offense (DUI), possession of drug paraphernalia, and driving without a license. We affirm.
75 Pa.C.S.A. § 3802(d)(2), 35 P.S. § 780-113(a)(32), and 75 Pa.C.S.A. § 1501(a), respectively.
The trial court summarized the facts and procedural history as follows:
Manely Houghtalen (hereinafter "Mr. Houghtalen") is the owner of H&S Motors, Incorporated, an auto repair company, located at 1100 North Cameron Street, Harrisburg, Pennsylvania. (Notes of Testimony, Bench Trial 4/6/23 ("N.T.") at 17). On July 28, 2021, Mr. Houghtalen and an employee, Sharon Purkey (hereinafter "Ms. Purkey") were headed out to lunch when Ms. Purkey came inside and said there was a "really weird person" outside. (Id.) She testified that she saw a male standing near a vehicle in the
parking lot and approached him to let him know the shop was closed for lunch. (N.T. at 2[8]). The male was subsequently identified as [DeJesus-Perez]. [DeJesus-Perez] got very close to her, and Ms. P[ur]key testified that she was very uncomfortable. (Id.) Although [DeJesus-Perez] was speaking to her, Ms. Purkey testified that it was incoherent. (Id.) She further testified that [DeJesus-Perez] kept going back and forth to his vehicle, then would walk around and talk to himself. (Id.)
Thereafter, Mr. Houghtalen went outside, approached the male, and reiterated that they were closed. (N.T. at 18). Mr. Houghtalen also testified that [DeJesus-Perez] was acting very bizarrely - he approached them several times, circled Mr. Houghtalen's vehicle several times, appeared very menacing, and stood in front of them with a big grin on his face. (Id.) [DeJesus-Perez] was sweating and speaking in broken English, but not making any sense. (Id.) Mr. Houghtalen testified that [DeJesus-Perez] also went to his vehicle and fidgeted around several times. (N.T. at 23).
At some point, Mr. Houghtalen called 911 to report the bizarre behavior. (N.T. at 20, 24). Mr. Houghtalen reported that [DeJesus-Perez] had arrived in a white Dodge Caliber and that it was parked in partially in the alley and partially in the parking lot of H&S Motors, Inc. (N.T. at 21). Although the vehicle was not parked in a designated parking space, it was not completely blocking traffic in the alleyway. (Id.) Mr. Houghtalen also provided police with the license plate for the Dodge Caliber. (N.T. at 22).
H&S Motors, Inc. is equipped with sixteen (16) high-definition surveillance cameras that capture every inch of the property, as well as lighting for nighttime. (N.T. at 19). Although neither Mr. Houghtalen nor Ms. Purkey observed [DeJesus-Perez] driving, it was captured on the surveillance cameras. (Id.) Mr. Houghtalen testified that he sat down with police the day of the incident to review the surveillance videos. (Id.) He testified that the videos showed [DeJesus-Perez] made a wide turn off Herr Street into the alleyway behind H&S Motors, Inc., pulled across several designated parking spaces in H&S Motors, Inc. parking lot, and parked. (N.T. at 20). The vehicle was not parked there earlier in the day. (N.T. at 23).
Officers Erik Henry (hereinafter "Officer Henry") and Cynthia Kreiser (hereinafter "Officer Kre[is]er") of the City of Harrisburg Bureau of Police were dispatched to H&S Motors, Inc. (N.T. at 32). Upon arriving on scene, Officers Henry and Kreiser observed [DeJesus-Perez] walking across H&S Motors, Inc. parking lot toward North Cameron and Herr Streets. (N.T. at 39). Officer Kreiser asked [DeJesus-Perez] to stop several times as there was heavy traffic in the area, and it appeared [DeJesus-Perez] was going to walk into the street. (Id.) She testified that [DeJesus-Perez] was dazed and ignored her requests to stop. (N.T. at 39-40).
Both officers were equipped with body cameras and their entire interaction with [DeJesus-Perez] was recorded and preserved. Portions were played during the non-jury trial, including a portion where [DeJesus-Perez] offered to move his vehicle when he was told his vehicle was partially in the alleyway. Officer Kreiser testified that [DeJesus-Perez] showed signs of impairment and intended to arrest him only for public drunkenness until Mr. Houghtalen informed her that there was video footage of [DeJesus-Perez] driving. (N.T. at 40-41).
Although Officer Kreiser did not personally observe [DeJesus-Perez] drive, she did watch the surveillance video footage with Mr. Houghtalen. (N.T. at 43). She testified that she observed [DeJesus-Perez] drive the white Dodge Caliber west on Herr Street at a slow speed. (Id.) [DeJesus-Perez] then made a wide right turn on to Julia Alley and almost struck a building. (N.T. at [43]-44). He then parked halfway on H&S Motors, Inc. parking lot, halfway on the street. (Id. [at 44]). Mr. Houghtalen provided Officer [Kreiser] a USB drive of the video that day. (Id.) Officer Kreiser turned it over to Officer Henry who put the video onto two (2) discs and placed them into evidence. (Id.) Officer Kreiser did not conduct standard field sobriety tests because [DeJesus-Perez] indicated that he had a herniated disc and a pinched nerve. (N.T. at 41). She testified that based on her observations and attempted communication with [DeJesus-Perez] that he was not capable of safely driving, and after watching the video, [DeJesus-Perez] was arrested for DUI. (N.T. at [45], 49).
Due to [DeJesus-Perez's] vehicle partially blocking a roadway, Officer Kreiser requested supervisor permission to
tow the vehicle. (N.T. at 44). An inventory search was conducted prior to the vehicle being towed. (N.T. at 45). Officer Henry searched the driver's side and found a partially smoked marijuana blunt on the driver's side floorboard in plain view. (N.T. at 32-33). He also found two (2) syringes in the driver's side door pocket. (N.T. at 33). Officer Kreiser conceded that the police report does not indicate that there was residue in either syringe, nor whether it was used. (N.T. at 35-36). Officer Kreiser searched the passenger side and recovered an empty pack of Hi5 2020 (like potpourri) in a little compartment above the radio, as well as a syringe with a needle and an empty cigar wrapper in the glove compartment. (N.T. at 45). The potpourri bag did not contain any residue. (Id.)Trial Court Opinion, filed June 28, 2023, at 3-6.
Before the trial began, the Commonwealth disclosed that the video recording from the repair shop showing DeJesus-Perez driving into the parking lot, which Houghtalen and the police officers viewed on the date of the incident, was not available because the Commonwealth had received the wrong video and had not checked it until just before trial, at which point the video was no longer available. N.T. at 5-6, 11-13. DeJesus-Perez moved to preclude Houghtalen and the police officers from testifying to what they saw on the video on the ground that their testimony concerning the video's contents was barred by the best evidence rule. Id. at 6-16. The trial court denied DeJesus-Perez's motion and permitted the witnesses who viewed the repair shop video to testify as to its contents. Id. at 16, 19-20, 43-44.
After a bench trial, the court found DeJesus-Perez guilty of the above offenses. It sentenced DeJesus-Perez to six months' probation with the first 10 days on house arrest plus a $1,000 fine for the DUI conviction, 12 months' concurrent probation and a $50 fine for possession of drug paraphernalia, and a $200 fine for driving without a license. This appeal followed.
DeJesus-Perez raises the following issue: "Whether the trial court erred when it allowed the Commonwealth to proceed without the video of Mr. Dejesus-Perez's driving when the Commonwealth had ample opportunity to acquire the original or the copy of the video surveillance and failed to do so[?]" DeJesus-Perez's Br. at 5 (suggested answer omitted).
DeJesus-Perez argues that the admission of the testimony of Houghtalen and the officers concerning the content of the repair shop's video should have been precluded by the best evidence rule because the video was not preserved. He maintains that the video was the best evidence to establish whether he was under the influence while he was driving. Id. at 11. He argues that "[w]ithout this evidence, whether he had been driving erratically prior to contact with Mr. Houghtalen, or if he became inebriated after he pulled into the parking lot, is pure speculation." Id. (emphasis removed). DeJesus-Perez points out that no one observed him driving until the viewing of the video. Id. at 23. He maintains that the Commonwealth's failure to verify the video until the eve of trial after having it in its possession for 21 months constituted bad faith such that the testimony as to the video's contents should have been excluded. Id. at 10.
"The admissibility of evidence is a matter addressed to the discretion of the trial court and may be reversed on appeal only upon a showing that the court abused its discretion." Buchhalter v. Buchhalter, 959 A.2d 1260, 1263 (Pa.Super. 2008) (citation omitted).
The best evidence rule requires that the original writing, recording, or photograph, or a duplicate of the original, must generally be produced to prove its content. See Pa.R.E. 1002, 1003. Although the best evidence rule traditionally applied only to writings, it has been extended to surveillance video recordings. See Commonwealth v. Green, 162 A.3d 509, 517-18 (Pa.Super. 2017) (en banc). Thus, the best evidence rule requires the admission of the original video, rather than testimony about the content of the video, where the video is necessary to prove the elements of the case. Id. at 518.
An exception to the best evidence rule allows the admission of testimony as to the contents of a video recording where it is shown that the video is lost or destroyed through no fault of the party that seeks to introduce such testimony. See Pa.R.E. 1004(a); Green, 162 A.3d at 518. Pennsylvania Rule of Evidence 1004 provides, in relevant part:
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[.]Pa.R.E. 1004(a). Under this provision, "[i]f the originals are not available at trial in criminal cases, through no fault of the Commonwealth, secondary evidence is permissible." Commonwealth v. Dent, 837 A.2d 571, 589 (Pa.Super. 2003).
Here, following the incident, the police reviewed the videos with the owner of the shop, who then put them on a USB stick that he gave to the police. The police put the USB stick in an evidence locker, in August 2021, where it remained until shortly before trial. A few weeks before trial, the prosecution asked the police for the videos. It turned out that the videos on the USB stick were from the wrong day. The police could not get the videos of the correct day from the shop at that time because they had been automatically written over. The videos were thus destroyed through no fault of the Commonwealth acting in bad faith. Certainly, the police or the prosecution could have reviewed the videos and discovered the shop owner's error before the videos were written over, but the failure to do so here did not amount to bad faith. The Commonwealth reasonably expected that the USB stick contained the correct videos.
Moreover, any error in this regard was at most harmless. "[A] violation of the best evidence rule is subject to the harmless error test and does not automatically rise to the level of reversible error per se in every case where the rule is truly violated." Green, 162 A.3d at 519. An evidentiary error is harmless if an appellate court concludes, beyond a reasonable doubt, that the error could not have contributed to the verdict. See Commonwealth v. Fitzpatrick, 255 A.3d 452, 500 (Pa. 2021). The Commonwealth has the burden of establishing the harmlessness of the error. Commonwealth v. Passmore, 857 A.2d 697, 711 (Pa.Super. 2004). The Commonwealth satisfies the harmless error burden when it is able to show:
(1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial [e]ffect of the error so insignificant by comparison that the error could not have contributed to the verdict.Id. (citation omitted) (alteration in original).
Here, the trial court found that there was evidence other than the videos that showed DeJesus-Perez drove the car. See Trial Ct. Op. at 7-8. We agree that the evidence, without the videos, was sufficient to prove that fact beyond a reasonable doubt. The prosecution introduced at trial the officers' body camera footage showing police telling DeJesus-Perez that they were going to have to tow his car because it was blocking an alley. DeJesus-Perez responded that if they let him go, he would move it, and said for the second time that he needed a mechanic. He then said, "I came over here to the mechanic shop, that's it."
The trial court treated DeJesus-Perez's statements as an admission that he had driven to the shop. DeJesus-Perez's statements were sufficient to prove inferentially beyond a reasonable doubt that he had driven. The admission of the officers' testimony describing the content of the missing video would therefore not have contributed to the verdict and was harmless.
Judgment of sentence affirmed.
Judge King joins the memorandum. Judge Colins files a concurring and dissenting memorandum.
Judgment Entered.
CONCURRING/DISSENTING MEMORANDUM
COLINS, J.:
Because I disagree with the learned majority's conclusion that testimony concerning the contents of the video was admissible and with its conclusion that admission of this testimony was harmless with respect to Appellant's DUI conviction, I dissent from the majority's affirmance of that conviction.
As the majority correctly holds, testimony concerning the contents of a surveillance video recording is subject to the best evidence rule. Therefore, testimony by a witness as to what such a video shows must be excluded where the witness did not observe the events at the time that they occurred, the witness testifies that the video showed the defendant committing acts that constitute elements of the crime with which the defendant is charged, the video is not produced, and no exception to the best evidence rule applies. Commonwealth v. Green, 162 A.3d 509, 518-19, 522 (Pa. Super. 2017) (en banc); Commonwealth v. Lewis, 623 A.2d 355, 358-59 (Pa. Super. 1993). Here, the content of the video was closely related to a controlling issue in this case, as Appellant was charged with DUI and the witnesses testified that the video showed Appellant driving on a public street in an impaired fashion. N.T. Trial at 19-20, 43-44. In addition, the witnesses testified to the content of the video, as they testified concerning what they saw on the video when they viewed it, not to anything that they witnessed at the time that it occurred. Id. at 19, 43. The best evidence rule therefore applied to the admissibility of their testimony concerning what the video showed. Green, 162 A.3d at 518; Lewis, 623 A.2d at 358-59.
As the majority also correctly holds, an exception to the best evidence rule allows admission of testimony as to the contents of a video recording where it is shown that the video was lost or destroyed through no fault of the party that seeks to introduce the testimony. Pa.R.E. 1004(a); Green, 162 A.3d at 518; Commonwealth v. Dent, 837 A.2d 571, 589 (Pa. Super. 2003); Lewis, 623 A.2d at 357. I disagree, however, with the majority's conclusion that this exception was satisfied here.
The burden was on the Commonwealth, as the proponent of the testimony, to show both that the video had been lost or destroyed and that it was not at fault in the loss or destruction of the video. Green, 162 A.3d at 518; see also Commonwealth v. Weber, 701 A.2d 531, 535 (Pa. 1997) (burden of proof is on proponent of evidence to establish its admissibility). The Commonwealth failed to satisfy that burden.
It was undisputed that the video was lost and that no copies were in existence at the time of trial. N.T. Trial at 5. This Court has held that loss of a video by third party before the Commonwealth was able to obtain a copy does not constitute fault by the Commonwealth, and that the best evidence does not preclude testimony as to the video's contents under those circumstances. Commonwealth v. Williams, 154 A.3d 336, 338, 341 (Pa. Super. 2017) (third party lost video when attempting to copy it for the police); Commonwealth v. Loughnane, 128 A.3d 806, 810, 813-14 (Pa. Super. 2015) (video had already been recorded over before police requested it), rev'd on other issue, 173 A.3d 733 (Pa. 2017).
Here, however, the record showed that the loss of the video occurred after the Commonwealth was able to obtain it from the repair shop. Moreover, contrary to the majority's assertion, Majority Memorandum at 7, the evidence did not show that the police merely failed to check whether they had received the correct video. The arresting officer testified that the police received the video from the owner of the repair shop on a thumb drive and transferred the video to discs shortly after Appellant's arrest, which was before the video was lost. N.T. Trial at 5, 44. There was no evidence that the Commonwealth made any attempt at that time to check that the video that it received was what it had requested or that the necessary portions had been successfully transferred. To the contrary, the Commonwealth admitted that it did not look at its copies of the video from the repair shop's cameras for over a year, and the record shows that it did not even provide the video to Appellant in response to Appellant's discovery requests. Id. at 11-15.
Nor was there was even evidence that the discs made and retained by the Commonwealth contained all of the video that the repair shop had supplied. While the Commonwealth asserted that the shop owner provided the wrong day of video, N.T. Trial at 5, 11, the record is equally consistent with the possibility that the Commonwealth received video that included both the wrong day and the correct day, but failed to successfully copy all of that video to the discs before it placed them in the evidence locker, as there was no testimony that it checked the discs after the transfer. Because it was the Commonwealth's burden to show that it was without fault in causing the loss of the video and the Commonwealth failed to show that it did not cause the loss of the video, the trial court erred in permitting the shop owner and arresting officer to testify to what they saw on the video. Green, 162 A.3d at 518; Lewis, 623 A.2d at 358-59.
Although the admissibility of evidence is generally reviewed on an abuse of discretion standard, whether the trial court properly applied our rules of evidence involves a question of law as to which our standard of review is de novo and our scope of review is plenary. Commonwealth v. Raboin, 258 A.3d 412, 422 (Pa. 2021); Commonwealth v. Brown, 52 A.3d 1139, 1176 (Pa. 2012).
I also cannot agree that Appellant's DUI conviction can be affirmed on the alternative ground that the admission of the testimony concerning the contents of the video was harmless error. An appellate court may affirm a conviction despite the erroneous admission of evidence if the Commonwealth shows beyond a reasonable doubt that the admission of the evidence was harmless. Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015); Commonwealth v. Radecki, 180 A.3d 441, 461 (Pa. Super. 2018). An error in admitting evidence is harmless and does not require a new trial where the evidence in question did not prejudice the defendant or any prejudice was de minimis, where the evidence in question was cumulative of other, substantially similar evidence that was properly admitted, or where the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect was so insignificant by comparison that the error could not have contributed to the verdict. Poplawski, 130 A.3d at 716; Commonwealth v. Taylor, 209 A.3d 444, 450 (Pa. Super. 2019); Green, 162 A.3d at 519.
While there was other properly admitted evidence that Appellant had driven the car to the repair shop and there was properly admitted evidence that Appellant was acting in an impaired fashion while he was seen later walking around in the parking lot, the issue of when Appellant became intoxicated was in dispute. Appellant asserted that there was no evidence that he was intoxicated before he was already parked in the repair shop's parking lot, and the Commonwealth argued in its closing that the testimony concerning the video showed that Appellant was impaired while he was driving. N.T. Trial at 53, 58-59. Even though the other evidence that
Appellant had driven the car and that he was impaired while in the parking lot would be sufficient to support an inference that Appellant was impaired when he drove the car, the testimony as to the contents of the video was the only direct evidence of when Appellant was driving and that he was driving in an impaired fashion. Because the testimony concerning the contents of the video was materially different and stronger proof of an element of DUI than the other evidence admitted at Appellant's trial, its admission cannot be harmless error and a new trial is required. Lewis, 623 A.2d at 356-37, 359 (admission in shoplifting case of testimony that missing video showed defendant taking radio from store shelf and glancing around the store while he handed it to his accomplice and the accomplice hid it in his jacket was not harmless error where other evidence did not show those acts).
For the foregoing reasons, I would affirm Appellant's possession of drug paraphernalia and driving without a license convictions but vacate Appellant's judgment of sentence and DUI conviction and remand for a new trial on that charge.
I do agree that the error was harmless with respect to Appellant's possession of drug paraphernalia and driving without a license convictions and therefore cannot be a basis for reversal of those convictions. The testimony concerning the video could not have prejudiced Appellant in any way with respect to the possession of drug paraphernalia charge, as it related only to Appellant driving his car and contained no evidence whatsoever of any controlled substance or of any item used to produce, package, or ingest any controlled substance. In addition, although the testimony concerning the video provided evidence of an element of the offense of driving without a license, it was cumulative of other evidence that supported that conviction, as video from the officers' body cameras that was played at trial showed that Appellant admitted that he had driven the car to the repair shop parking lot. Trial Court Opinion at 7-8.
[*] Retired Senior Judge assigned to the Superior Court.