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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
DEVON JAMES VENABLE, :
:
Appellant : No. 421 WDA 2015
Appeal from the Judgment of Sentence January 29, 2015
in the Court of Common Pleas of Allegheny County
Criminal Division, at No(s): CP-02-CR-0011210-2014
BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED FEBRUARY 05, 2016
Devon James Venable (Appellant) appeals from the judgment of
sentence entered January 29, 2015, following his convictions for theft of
property lost, mislaid, or delivered by mistake and receiving stolen property.
We affirm.
On July 16, 2014, Lyle Monson arrived at the Pittsburgh International
Airport with his wife. N.T., 1/29/2015, at 6-7. They proceeded to
Uniontown, Pennsylvania, after obtaining a rental car. Id. at 7. On their
way, they realized that their small green carry-on bag containing numerous
personal effects, including a Samsung tablet, was missing. Id. at 7-8. Mr.
Monson and his wife returned to the airport and, following their unsuccessful
attempts at locating the bag, notified Mark Restori of the Allegheny County
*Retired Senior Judge assigned to the Superior Court.
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Police, who was working at the airport as a patrol officer at the time. Id. at
9-10, 13-14.
Upon investigation, Officer Restori identified Appellant, who had also
arrived in the Pittsburgh area by plane on the day in question, as a suspect.
Id. at 14-16, 23. Officer Restori encountered Appellant at the airport days
later when Appellant arrived for his return flight. Id. at 17. Appellant
admitted to Officer Restori that he had taken the bag and then left it at a
hotel on his way to Pittsburgh. Id. at 17, 20. Eventually, it was discovered
that Appellant was in possession of certain items of Mr. Monson’s, including
the tablet. Id. at 17-19, 22. After Appellant’s arrest, while they were en
route to the Allegheny County Jail, Appellant identified a hotel as the one at
which he left the green bag. Id. at 20. Officer Restori later returned to the
hotel, where the bag containing more of Mr. Monson’s belongings was found.
Id. at 20-21. Ultimately, Mr. Monson retrieved the items and observed that
the tablet had “a thousand -- over a thousand pictures uploaded and they
were of varying degrees of vulgarity.” Id. at 10-11, 35.
According to Appellant, he saw Mr. Monson’s green bag upon locating
his rental car. Id. at 24, 28-29. He took the bag in the car with him and
began looking for someone to turn it in to. Id. In the process, he opened
the bag to find out whose it was and left it unzipped; as a result, certain
items fell out of the bag into the car. Id. at 25-26, 30-31. Appellant
eventually dropped the bag off at a Marriott Hotel, which was the closest
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business he could find.1 Id. at 24-25, 29-30. Appellant stated that when he
reached the Marriott, he zipped the bag, took it inside, left the bag at the
counter, and exited without talking to anyone. Id. at 25, 30-31. Appellant
further explained that he discovered the items that had fallen out when he
was cleaning the vehicle at a gas station before he returned to the airport, at
which point he put everything into his luggage. Id. at 26-27, 31. Appellant
admitted that he did not contact the Marriott once he found the items to see
if anyone had claimed the bag. Id. at 32. Appellant also admitted to
“play[ing] with” the tablet. Id.
Appellant was found guilty of the aforementioned crimes following a
non-jury trial on January 29, 2015. The matter immediately proceeded to
sentencing, and the trial court sentenced Appellant to a one-year term of
probation for his conviction of theft of property lost, mislaid, or delivered by
mistake; no further penalty was imposed for Appellant’s conviction of
receiving stolen property. Appellant then filed post-sentence motions, which
the trial court denied on February 11, 2015. This appeal followed.
On appeal, Appellant presents one issue for our consideration: “Did
the trial court abuse its discretion by allowing Commonwealth witness Lyle
1
The bag and tablet were labeled with Mr. Monson’s personal identification
information. N.T., 1/29/2015, at at 8-9, 19-20. Although Appellant
admitted to seeing a name and phone number on the bag, he explained that
he did not call the number because he did not have a phone at the time and
“was leaving it up to somebody else to call it in.” Id. at 25, 30. Appellant
further explained that he did not turn the bag in to the rental car company
because he found it in the parking lot. Id. at 24.
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Monson to testify regarding the content of photographs without requiring the
Commonwealth to present the original photographs at trial, in violation of
Pa.R.E. 1002?” Appellant’s Brief at 4 (unnecessary capitalization omitted).
Our review of a trial court’s ruling concerning the admission of
evidence is well-settled:
Admission of evidence rests within the discretion of the trial
court, and we will not reverse absent an abuse of discretion.
Discretion is abused when 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.
Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa. Super. 2014) (en banc)
(citation and internal quotation marks omitted).
The “best evidence rule,” codified at Pa.R.E. 1002, 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. Pennsylvania Rule of Evidence
1004 further provides that “[a]n original is not required and other evidence
of the content of a writing, recording, or photograph is admissible if[, inter
alia,] the writing, recording, or photograph is not closely related to a
controlling issue.” Pa.R.E. 1004(d). This Court has observed that “[i]f the
Commonwealth does not need to prove the contents of the writing or
recording to prove the elements of the offense charged, then the
Commonwealth is not required to introduce the original writing or
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recording.” Commonwealth v. Dent, 837 A.2d 571, 590 (Pa. Super.
2003); see also Commonwealth v. Janda, 14 A.3d 147, 161-62 (Pa.
Super. 2011) (“The best evidence rule applies where the contents of the
item in question must be proven to make a case.”).
Appellant’s issue relates to the following exchange, which occurred
upon the Commonwealth calling Mr. Monson on rebuttal:
[The Commonwealth:] Mr. Monson, I just have a few brief
questions. One follow-up question.
When you did get the tablet back from the detective did
you have an opportunity to turn the tablet on and view the
tablet?
[Mr. Monson:] I certainly did.
[The Commonwealth:] And did you observe any images
uploaded to the tablet that you were unfamiliar with?
[Appellant’s Counsel:] I would object under the best evidence
rule[]. If she is going to offer any type of evidence regarding
the picture, the picture no longer exists or are not -- presently
cannot be introduced.
The Court: Overruled.
[The Commonwealth:] Were there any pictures of [Appellant]
on the tablet?
[Mr. Monson:] I didn’t know who [Appellant] was. There was a
thousand -- over a thousand pictures uploaded and they were of
varying degrees of vulgarity.
N.T., 1/29/2015, at 34-35.
Appellant contends that the trial court abused its discretion by allowing
Mr. Monson’s testimony above without requiring the Commonwealth to
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present the original photographs at trial, in violation of the best evidence
rule. Appellant’s Brief at 12. Appellant further argues that the testimony
was not otherwise admissible under Pa.R.E. 1004. Id. at 16-18. In support
of his argument, Appellant contends that the existence of the photographs
and their content bore directly upon the determination of Appellant’s intent,
an element required to prove the offenses at issue.2 Id. at 16-17.
According to Appellant, Mr. “Monson’s testimony that his tablet contained
over a thousand vulgar photographs strongly suggested that [Appellant] had
made the tablet his own,” as demonstrated by the trial court’s reasoning in
reaching its verdict:
I believe that gentleman, Lyle Monson, is honest, and he has
come back here and he has told his story, and I believe that
[Appellant] put perverted photos on, [sic] as this man said,
which is evidence that he had no intent of returning it. I believe
that he could have just left it there if he didn’t want to take it. I
2
The offense of theft of property lost, mislaid, or delivered by mistake is
defined as follows:
A person who comes into control of property of another that he
knows to have been lost, mislaid, or delivered under a mistake
as to the nature or amount of the property or the identity of the
recipient is guilty of theft if, with intent to deprive the owner
thereof, he fails to take reasonable measures to restore the
property to a person entitled to have it.
18 Pa.C.S. § 3924. A person is guilty of receiving stolen property “if he
intentionally receives, retains, or disposes of movable property of another
knowing that it has been stolen, or believing that it has probably been
stolen, unless the property is received, retained, or disposed with intent to
restore it to the owner.” 18 Pa.C.S. § 3925(a).
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think that but for the officer being vigilant, he would be in Mesa,
Arizona with perverted pictures on this man’s laptop – whatever,
instrument. I find him guilty of both crimes.
Id. at 17-18 (quoting N.T., 1/29/2015, at 37).
Upon review, we conclude that Appellant’s argument is without merit.
The contents of the photographs found on Mr. Monson’s tablet were not
necessary to the Commonwealth’s case against Appellant for the theft-
related charges. That is, although Appellant’s actions in putting photographs
on the tablet evidenced his intent to keep the tablet, as indicated by the trial
court, the Commonwealth was not required to prove the contents of the
photos in order to establish that intent or any other element of the offenses
at issue. Thus, the Commonwealth was not required to introduce the
original photographs. See Commonwealth v. Fisher, 764 A.2d 82, 88-89
(Pa. Super. 2000) (concluding that the Commonwealth was not required to
introduce original voicemail recordings of Appellant discussing the failure of
his relationship with his fiancée, expressing anger over certain accusations,
and taunting his fiancée, where the messages did not provide proof of the
elements of the offenses charged, which were assault, endangering the
welfare of a child, and possession of an instrument of crime).
Based on the above, the trial court did not abuse its discretion in
allowing Mr. Monson’s testimony regarding the photographs found on the
tablet. Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/5/2016
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