J-S53042-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

WILLIAM DEKEYSER 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3292 EDA 2018

Appeal from the Judgment of Sentence Entered September 14, 2018

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-0003079-2017

BEFORE: OLSON, J., STABILE, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED NOVEMBER 19, 2019

Appellant William Dekeyser appeals from the judgment of sentence 

imposed following his jury trial convictions for persons not to possess firearms, 

carrying a firearm without a license, carrying firearms on public streets in 

Philadelphia, possessing instruments of crime, and simple assault.1 Appellant 

argues that the trial court abused its discretion by allowing the jury to watch 

an altered version of the Commonwealth’s video evidence during 

deliberations. We affirm. 

The trial court opinion set forth the relevant facts of this appeal as 

follows: 

[Appellant] pointed a loaded gun at Jervine Oates on March 13, 

2017 at about 5:30 p.m., as both men stood less than two feet 

apart from each other at the corner of 16th Street and Nedro 

Avenue. Officers Timothy McGonigle and Judith Kinniry observed 

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1 18 Pa.C.S. §§ 6105, 6106, 6108, 907, and 2701, respectively. 
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[Appellant] pointing the gun as they travelled eastbound along 

Nedro Avenue in their marked police car. Both officers got out of 

the car, drew their weapons, announced that they were police, 

and told [Appellant] to drop the weapon. [Appellant] turned to 

look at the officers and then ran. Because [Appellant] was about 

fifty to sixty feet away from the officers, they got back into the 

car and drove to catch up to him, turning northbound on 16th 

Street, but ultimately lost sight of him after about ten seconds. 

After losing sight of [Appellant], the officers exited the car. Officer 

Kinniry noticed that people outside were pointing to where there 

was a gun on the ground, about fifteen to twenty feet away from 

where she initially saw [Appellant] pointing the gun at Mr. Oates. 

She stood by the gun to preserve the chain of custody, and 

radioed other officers for backup. Mr. Oates nervously stood 

nearby until [Appellant] was apprehended. 

Meanwhile, Officer McGonigle went into a store at the corner of 

16th and Nedro, where he knew that surveillance cameras were 

trained on that corner. By reviewing the surveillance video of 

three separate cameras, he could see [Appellant] point the gun, 

run, and enter the rear door of a property at 1602 Widener Place, 

which is at the next block north of Nedro. Officer Kinniry briefly 

asked another officer to stand by the gun, and then she entered 

the store to confirm that this was [Appellant’s] flight path. Officer 

McGonigle exited the store and told backup officers to try to 

surround the front and back entrances of 1602 Widener Place. 

Officer McGonigle then stood by the gun, as Officer Kinniry and 

another officer went to one entrance of 1602 Widener Place, and 

Officer John DeSanto and his partner went to the other entrance 

of 1602 Widener Place. The officers yelled into the property for 

[Appellant] to come out. [Appellant] told the officers that he did 

not have any guns, exited a back door or basement door of the 

property with his hands up, and was then arrested. Officer Kinniry 

testified that about ten minutes, at most, passed between the 

time that she recovered the gun and the time that [Appellant] was 

arrested. 

* * *

DNA analysis of the gun recovered revealed that at least three 

individuals with distinct DNA profiles touched the gun. One of 

those individuals was [Appellant] and [Appellant] left most of the 
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DNA on the sample. There were no fingerprints recovered from 

the gun. 

Trial Ct. Op., 4/24/19, at 2-4 (record citations and footnotes omitted). 

On April 12, 2017, the Commonwealth filed a criminal information 

charging Appellant with multiple offenses related to his possession of the 

firearm and assault. Appellant proceeded to a jury trial on April 2, 2018. At 

trial, the Commonwealth played a recording of the surveillance videos for the 

jury. 

During the Commonwealth’s case-in-chief, this evidence was 

presented in a split-screen format that compiled simultaneous 

footage from four separate surveillance cameras as a 2x2 grid. 

During deliberations, the jury asked to review this video evidence 

again. Outside of the jury’s presence, [the trial c]ourt directed 

the Commonwealth to play one video camera [angle] at a time, 

and to play only the clips from the three video cameras that 

allegedly depicted [Appellant]. 

Id. at 7 (record citations and footnote omitted). By showing one camera angle 

at a time, the altered video appeared larger than the video shown during the 

Commonwealth’s case-in-chief. Id. 

Appellant objected to the trial court’s decision to alter the format of the 

video: 

[Appellant’s Counsel]: Your Honor, my basis of objection is that 

the video should be replayed in the same manner it was [played]

for trial. [The prosecutor] could have―if he wanted to play this 

video [featuring one camera angle at a time] for the jury, he could 

have . . . done that during trial. However, . . . it didn’t happen 

that way. He played . . . the version that had three different 

videos playing at the same time. That’s the decision that the 

Commonwealth made. They can’t go back now and try to―

THE COURT: It’s not a different video. It’s the same video. 
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* * *

[Appellant’s Counsel]: But I’m saying they can’t . . . make 

highlights or alter the manner in which it was played for the jury. 

It’s counsel’s job and the Commonwealth’s job to present their 

evidence as clear as possible. I mean, when he presented 

evidence, he presented it in a manner that he chose to. You can’t 

look back and say I should have presented evidence differently. 

N.T. Trial, 4/4/18, at 10-11. The trial court overruled Appellant’s objection. 

Shortly thereafter, the jurors entered the courtroom and the trial court 

permitted them to watch the altered video. The trial court did not allow the 

jurors to leave the jury box, but it did permit the jurors to stand up within the 

box for a better view of the screen. After the jurors watched the altered video, 

they exited the courtroom and continued deliberations. 

Ultimately, the jury convicted Appellant of the aforementioned offenses. 

On September 14, 2018, the trial court sentenced Appellant to five to ten 

years’ imprisonment for persons not to possess firearms. The trial court 

imposed no further penalties for the remaining convictions. Appellant timely 

filed a post-sentence motion on September 24, 2018, which the trial court 

denied on October 26, 2018. 

On November 13, 2018, Appellant timely filed a notice of appeal. The 

trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of 

errors complained of on appeal, which Appellant timely filed on November 20, 

2018.2 The trial court filed a responsive opinion, concluding that it did not 

abuse its discretion by allowing the jury to view the video evidence during 

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2 Appellant’s Rule 1925(b) statement raised three issues. However, Appellant 

now presents only one of those issues for this Court’s review. 
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deliberations. The trial court emphasized that “[w]hile the format of the video 

presented to the deliberating jury differed from the format of the same video 

played three times for the jury during trial, the enlarged single-[camera angle]

format did not distort the exhibit to the extent that it could be characterized 

as ‘different’ evidence.” Trial Ct. Op. at 8 (emphasis in original). Moreover, 

the trial court determined that any error was harmless. See id. at 9-10. 

Appellant now raises one issue for our review: 

Did not the [trial] court abuse its discretion in permitting the jury 

to view a magnified version of a video clip during deliberations, 

where the video had not been magnified when it was shown during 

the trial and admitted into evidence? 

Appellant’s Brief at 3. 

Relying on Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 

1999), Appellant argues that a deliberating jury may only review trial exhibits 

“in the same manner as [the exhibits] were presented during trial.” Id. at 

12. In the instant case, Appellant contends that “the video shown to the 

deliberating jurors was shown in an altered and magnified format.” Id. at 11. 

Because of the altered format, Appellant asserts that video was fundamentally 

different from the video shown to the jury during the Commonwealth’s casein-chief. Id. Further, Appellant insists that the trial “court’s conscious object 

was to have the jury review the evidence in a different manner from the 

manner in which the evidence was initially presented at trial.” Id. at 12

(emphasis in original). Under these circumstances, Appellant maintains that 
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“it was an abuse of discretion for the [trial] court to order the videos replayed 

for the jury in magnified form.” Id. at 16. 

Our review is informed by Pa.R.Crim.P. 646, which states: 

(A) Upon retiring, the jury may take with it such exhibits as 

the trial judge deems proper, except as provided in paragraph (C). 

* * *

(C) During deliberations, the jury shall not be permitted to 

have:

(1) a transcript of any trial testimony;

(2) a copy of any written or otherwise recorded confession 

by the defendant;

(3) a copy of the information or indictment; and

(4) except as provided in paragraph (B), written jury 

instructions.

Pa.R.Crim.P. 646(A), (C); see also Commonwealth v. Morton, 774 A.2d 

750, 753 (Pa. Super. 2001) (holding the trial court did not violate the prior 

version of Rule 646 where, during deliberations, the jury was placed in the 

jury box, permitted to review a written confession briefly, not permitted to 

deliberate while in the jury box, and given a cautionary instruction). 

“Whether an exhibit should be allowed to go out with the jury during its 

deliberation is within the sound discretion of the trial judge.” 

Commonwealth v. Barnett, 50 A.3d 176, 194 (Pa. Super. 2012) (citations 

omitted). 

We point out that the trial is the forum for finding truth. The jury’s 

deliberations represent the process by which the fact finders 
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establish what they believe to be true. For policy reasons, where 

materials inform a jury and aid it in the difficult task of 

determining facts, the jury should be permitted to study those 

materials during its deliberations. 

Commonwealth v. Strong, 836 A.2d 884, 886 (Pa. 2003) (citation and 

emphasis omitted). 

“The underlying reason for excluding certain items from the jury’s 

deliberations is to prevent placing undue emphasis or credibility on the 

material, and de-emphasizing or discrediting other items not in the room with 

the jury.” Barnett, 50 A.3d at 194 (citations omitted). “If there is a likelihood 

the importance of the evidence will be skewed, prejudice may be found; if not, 

there is no prejudice per se and the error is harmless.” Id. (citations omitted). 

“Under this doctrine, an error may be harmless where the properly admitted 

evidence of guilt is so overwhelming and the prejudicial effect of the error is 

so insignificant by comparison that it is clear beyond a reasonable doubt that 

the error could not have contributed to the verdict.” Strong, 836 A.2d at 887 

(citation and quotation marks omitted). 

In Lilliock, “both parties used a [video] presenter, a video machine that 

enlarges a regular photograph on a video monitor, to assist them in presenting 

photographic evidence to the jury.” Lilliock, 740 A.2d at 243. During 

deliberations, the jury did not have access to a video presenter. 

Consequently, the trial court allowed the jury to use a magnifying glass to 

review the photographs during deliberations. 

On appeal, the appellant argued that the jury’s use of the magnifying 

glass violated a prior version of Rule 646. The Lilliock Court disagreed:
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The expert witnesses relied upon an examination of the 

photograph during their testimony, and the Commonwealth 

presented the evidence via the video presenter. The magnifying 

lens was used by the jury to view the photographs in the same 

manner as they were presented during trial. This procedure 

assisted the jury in its truth-determining process. Thus, we 

conclude that the trial court did not err or abuse its discretion in 

allowing the jury to utilize a magnifying lens during deliberations. 

Id. (emphasis added). 

Instantly, the Commonwealth presented a “split-screen format that 

compiled simultaneous footage from four separate surveillance cameras as a 

2x2 grid” during its case-in-chief. Trial Ct. Op. at 7. During deliberations, 

however, the trial court responded to the jury’s request to review this evidence 

by directing the Commonwealth to present video from one camera angle at a 

time. Id. The trial court determined that it did not err in ordering the 

presentation of a different version of the video, because “the enlarged, single-

[camera angle] format of the video played for the deliberating jury was the 

same evidence already played for the jury.” Id. at 6 (emphasis omitted). 

Although the trial court correctly noted that the deliberating jury viewed “the 

same evidence,” it was not presented “in the same manner” as the video 

played during the Commonwealth’s case-in-chief. See Lilliock, 740 A.2d at 

243. 

Nevertheless, the Commonwealth’s properly admitted evidence was

overwhelming. See Strong, 836 A.2d at 887. As the trial court noted: 

Officers McGonigle and Kinniry directly observed [Appellant] point 

a gun at someone and then flee after they announced their 

presence. Bystanders pointed Officer Kinniry to a firearm on the 
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ground along [Appellant’s] flight path. There are no discernible

issues with the chain of custody of that firearm, and the DNA on 

the firearm belongs primarily to [Appellant]. Officer McGonigle 

looked at nearby surveillance footage to determine [Appellant’s] 

flight pattern, leading to the discovery of [Appellant] inside of a 

nearby vacant building where there was only one item of 

clothing―the hoodie that the officers allegedly saw [Appellant] 

wearing as he fled from them. The surveillance footage merely 

corroborates the officers’ eyewitness testimony and aspects of 

their investigation. . . . 

Trial Ct. Op. at 10-11 (citations omitted).

Additionally, the Commonwealth entered into evidence two 

photographs, which were “still shots” taken directly from the surveillance 

videos. See N.T. Trial, 4/3/18, 38-39. The photographs depicted an 

individual in a gray sweatshirt pointing a gun at another individual. See

Commonwealth’s Exs. 22-23. Unlike the video played during the 

Commonwealth’s case-in-chief, the photographs each featured one image 

from a single camera angle. Id. 

In light of the Commonwealth’s overwhelming evidence, the prejudicial 

effect of allowing the deliberating jury to view the altered video was so 

insignificant by comparison that it is clear beyond a reasonable doubt that any

error was harmless. See Strong, 836 A.2d at 887. Accordingly, we affirm 

the judgment of sentence. 

Judgment of sentence affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/19/19