Com. v. Lewis

• Decision Date: 16 April 1993
• Citation: 623 A.2d 355,424 Pa.Super. 531
• Parties: COMMONWEALTH of Pennsylvania v. Dennis D. LEWIS, Appellant.
• Court: Pennsylvania Superior Court

Page 355

623 A.2d 355

424 Pa.Super. 531

COMMONWEALTH of Pennsylvania v. Dennis D. LEWIS, Appellant.

Superior Court of Pennsylvania.

Argued Dec. 1, 1992.

Filed April 16, 1993.

James F. Donohue, Butler, for appellant.

Before ROWLEY, President Judge, and DEL SOLE and CERCONE, JJ.

DEL SOLE, Judge:

This is an appeal from a judgment of sentence for retail theft. We find that the trial court erred in admitting certain testimony, and that such error was not harmless; therefore, we reverse and remand for a new trial.

At trial, the testimony of Officer Timothy Barclay established that Appellant, Dennis D. Lewis, was shopping at the Town Mall in New Castle, Pennsylvania on December 2, 1989, with Donald Lohnes, a co-worker. The two men entered the mall through an entrance to a Sears store, and stopped in the Sears electronics section. Appellant picked up several radio "walkmans" from the display case, and after examining them, returned them to the display case. Appellant then knelt, picked up another "walkman," and handed it to Lohnes, who was standing in close proximity to him. Lohnes placed the "walkman" in his jacket, as Appellant glanced around the store. Appellant then proceeded to leave Sears and enter the mall, with Lohnes following him. Neither of the two made any attempt to pay for the merchandise before exiting Sears. As they entered the mall, Appellant and Lohnes were apprehended by Stephen Fee, a store security guard, who escorted them to Sears. Fee then contacted the local police, and Officer Timothy Barclay arrived and placed the two men under arrest. The actions of Appellant and Lohnes while they were in the electronics department had been recorded by a video camera in the Sears store. Officer Barclay had the opportunity to view the tape, which was subsequently stored in the basement of the Sears store.

The testimony of Officer Barclay was introduced at Appellant's jury trial over defense counsel's objections. Barclay testified regarding what he observed on the tape, although he had not had the opportunity to observe Appellant's actions contemporaneously with the crime. Prior to Barclay's testimony, security guard Stephen Fee had testified regarding his personal observations of Appellant and Lohnes and their respective actions in the store, which led to his apprehending them in the mall. Appellant was convicted of retail theft, and following the denial of his post-verdict motions, was sentenced to two to four years imprisonment. This appeal followed.

Appellant raises three issues for review:

1) Whether Officer Barclay's testimony concerning Appellant's actions is hearsay evidence; and if so, whether the admission of such evidence constitutes prejudicial error which would warrant a new trial?

2) Whether the Best Evidence Rule applies to the contents of the video tape; and if so, whether the admission of Barclay's testimony violated the Rule?

3) Whether the evidence is sufficient to support Appellant's conviction of retail theft?

Hearsay evidence is defined as in-court evidence of an out-of-court declaration, whether oral or written, which is offered to show the truth of the out-of-court assertion. Kemp v. Qualls, 326 Pa.Super. 319, 473 A.2d 1369 (1984). In the instant case, the alleged "declaration" is the conduct of Appellant as recorded on the video tape. Since Appellant's actions do not fall within the category of assertive conduct, i.e., conduct which is intended to convey a message, neither the hearsay rule or the hearsay exception of the admission of a party-opponent is applicable. Instead, the facts in the instant case warrant an analysis under the best evidence rule.

The best evidence rule, followed in Pennsylvania, is expressed in Warren v. Mosites Construction Company, 253 Pa.Super. 395, 385 A.2d 397 (1978):

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 (2d 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. Furthermore, where the testimony does not divulge the contents of the instrument, the best evidence rule does not apply. 2 Jones, Evidence § 7:5 (6th ed. 1972).

In the instant case, the issue is not simply whether the contents of a writing are in issue and would thus implicate the best evidence rule, but whether the same principles which warrant the application of the best evidence rule to documentary evidence are present in the instant case, which involves a videotape. Although the Federal Rules of Evidence apply the rule to writings, recordings and photographs, See F.R.E. 1002, Pennsylvania courts have been reluctant to extend the rule to provide similar application.

Although repeatedly declining to apply the best evidence rule to cases involving sound recordings, Pennsylvania courts have never expressly limited the application of the rule to documentary evidence alone. Furthermore, we find no case in which the term "writing" is specifically defined within the meaning of the best evidence rule. In Commonwealth v. Farrar, 271 Pa.Super. 434, 413 A.2d 1094 (1979), this court, faced with an issue involving the best evidence rule, stated, "The 'best evidence rule' applies only to the proof of writings. (What is meant by a 'writing' is a question not at issue here.)" Id. at 445-46, 413 A.2d at 1100.

Durkin v. Equine Clinics, Inc., 313 Pa.Super. 75, 459 A.2d 417 (1983), involved the application of the best evidence rule to a sound recording. In that case, the appellants argued that the trial court erred in refusing to permit a recorded interview to be played for the jury. Instead, the trial court had admitted a written transcript of the recording into evidence. The appellants argued that the introduction of the written transcript, rather than of the sound recording itself, violated the best evidence rule. We stated:

Even if we were to consider the tape recording to be a "writing," the Best Evidence Rule would not apply in this case. The Best Evidence Rule is only applicable to the proof of the contents of the documents when the contents of those documents are material to, rather than mere evidence of, the issues at bar ... In this case, the contents of the interview were merely collateral to the issue of appellees' negligence. Proof of its content was not necessary in order to make a case or provide a defense.

Id. at 79, 459 A.2d at 419.

Commonwealth v. Schauffler, 397 Pa.Super. 310, 580 A.2d 314 (1990) also concerned the application of the best evidence rule to a sound recording. The appellant in Schauffler argued that his trial counsel had been ineffective for not attempting to keep the trial court from hearing a taped conversation between the appellant and a police officer to whom he had offered a bribe. The Commonwealth did not prove the conversation by a transcript of the recorded conversation, but by introduction of the recorded conversation itself. Citing Durkin, we held that the tape recording was not excludable under the best evidence rule.

Anderson v. Commonwealth, 121 Pa.Cmwlth. 521, 550 A.2d 1049 (1988) is the only case involving the application of the best evidence rule to a videotape. In Anderson, the owner of a bookstore appealed the trial court's finding that he had violated a township pornography ordinance. At trial, the township elicited the testimony of the Township Zoning Officer and an interested citizen concerning the allegedly pornographic...