J-S63018-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

CURTIS ROBERT MOYER

Appellant No. 254 MDA 2014

Appeal from the Judgment of Sentence July 29, 2013

In the Court of Common Pleas of York County

Criminal Division at No(s): CP-67-CR-0008594-2012

BEFORE: BOWES, J., PANELLA, J., and PLATT, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 06, 2014

Appellant, Curtis Robert Moyer, appeals from the judgment of 

sentence entered July 29, 2013, in the Court of Common Pleas of York 

County. We affirm.

Robert Holjes parked his car and entered a Giant supermarket. While 

shopping he was paged to see the store manager. The store manager took 

Holjes outside to the parking lot and showed him damage to his car. There 

was damage to the driver’s side door, to the panel under that door, and to 

the hood of the car. The manager informed Holjes that the store had 

security cameras and permitted him to watch a segment of the surveillance 

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 Retired Senior Judge assigned to the Superior Court.
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video. Holjes left the store, but returned later to canvas the area for the 

suspect. 

Eventually he located a man, later identified as Moyer, and asked him 

if he recognized his car. Moyer said he did, responding that he had earlier 

been sitting on it in the parking lot of the nearby supermarket. To Holjes, 

Moyer did not “seem completely coherent” and Holjes offered to drive him to 

the police station. N.T., Trial, 4/1-2/13, at 125. Moyer declined the ride to 

the police station, but agreed to drive to Giant where Holjes took Moyer to 

the store manager. 

The manager called the police. To Officer Michael Bennage, Moyer 

seemed to be in “an altered state of reality,” looked “disheveled,” his pants 

were soaked, and he was holding a rolled newspaper up to his one eye. Id., 

at 131, 138. Officer Bennage asked Moyer why he thought the police were 

there and Moyer responded because of what he did to the car—that he sat 

on the car, repeatedly, and pushed a shopping cart into its driver’s side 

door. Officer Bennage arrested Moyer.

The police never obtained the security camera footage. Officer 

Bennage was under the impression that another officer at the scene, Officer 

William Buzzard, requested the footage from the store. When the footage 

failed to arrive at the police department, Officer Bennage never followed up 

with the store, and the loss prevention officer at the store never contacted 

the police department. Officer Buzzard acknowledged that there was a 
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failure to request the footage due to a miscommunication between him, the 

police department and the store, but that when he left the store that night 

he thought someone had requested the footage. He explained: 

Within our police department, we have a system of checks and 

balances to make sure that that’s followed up with [i.e., 

obtaining the footage], and I do take responsibility for not 

having the video. It was a – an error on my part that I didn’t get 

it. I was under the impression I was going to get it, and the 

system of checks and balances that we used also failed, and we 

just don’t have it.

Id., at 141. The footage, stored on a 30-day loop, was eventually copied

over. 

Prior to trial, with the surveillance footage irretrievably lost, the 

Commonwealth filed a motion in limine seeking to admit oral testimony as to 

what Officer Buzzard and the store manager observed on the footage. The 

trial court held a hearing on the matter and ruled, citing Rule 1004 of the 

Pennsylvania Rules of Evidence, that it would permit the testimony as the 

Commonwealth did not act in bad faith and the footage was irretrievably 

lost. 

The matter proceed to a jury trial. Officer Buzzard and the store 

manager testified as to what they observed on the surveillance footage, and 

the jury convicted Moyer of criminal mischief and found him not guilty of 

public drunkenness. The trial court sentenced Moyer to time served to 23 

months’ incarceration. 
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Moyer filed a timely post-sentence motion, and then a notice of appeal 

on February 6, 2014. On May 14, 2014, this Court ordered Moyer to show 

cause why this appeal should not be dismissed. On May 21, 2014, Moyer 

filed an answer indicating he had filed a praecipe in the trial court for entry 

of an order denying the post-sentence motion by operation of law. On the 

same day, the trial court entered an order denying the post-sentence motion 

by operation of law.

Preliminarily, we must first determine whether this appeal is properly 

before us. Rule 905 of the Pennsylvania Rules of Appellate Procedure 

provides, that “[a] notice of appeal filed after the announcement of a 

determination but before the entry of an appealable order shall be treated as 

filed after such entry and on the day thereof.” Pa.R.A.P. 905(a)(5). 

Before entry of the May 21, 2014 order denying Moyer’s post-sentence 

motion by operation of law, his February 6, 2014 notice of appeal would 

have been premature. See Commonwealth v. Claffey, 80 A.3d 780, 783 

(Pa. Super. 2013) (appeal filed while timely post-sentence motions are 

pending may be premature). See also Pa.R.Crim.P. 720, Note. Because the 

trial court subsequently entered the final order, however, we will treat the 

notice of appeal as filed on May 21, 2014. We proceed to the merits.

On appeal, Moyer maintains that the trial court erred in not applying 

Rule 1002 of the Pennsylvania Rules of Evidence, commonly known as the 

Best Evidence Rule. See Appellant’s Brief, at 4. 
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Our standard of review is as follows.

In evaluating the denial or grant of a motion in limine, our 

standard of review is well-settled. When ruling on a trial court’s 

decision to grant or deny a motion in limine, we apply an 

evidentiary abuse of discretion standard of review. A trial court 

has broad discretion to determine whether evidence is 

admissible, and a trial court’s ruling regarding the admission of 

evidence will not be disturbed on appeal unless that ruling 

reflects manifest unreasonableness, or partiality, prejudice, bias, 

or ill-will, or such lack of support to be clearly erroneous. If the 

evidentiary question is purely one of law, our review is plenary. 

Commonwealth v. Belani, ___ A.3d ___, ___, 2014 WL 4748045, *3 (Pa. 

Super., filed September 25, 2014) (citations and quotation marks omitted).

The Best Evidence Rule 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. Rule 1004, which the trial court relied on, is a rule 

that provides otherwise. That rule states that “[a]n 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).

The trial court found that secondary evidence was admissible, under 

Rule 1004, as the surveillance footage was irretrievably lost and the 

Commonwealth did not act in bad faith. It is undisputed that the surveillance 
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footage is irretrievably lost. The admission of the secondary evidence turns 

on whether the Commonwealth, through the police, acted in bad faith.1

“Bad faith” is defined as “[d]ishonesty of belief or purpose[.]” BLACK’S 

LAW DICTIONARY 149 (8th ed. 2004). The testimony established that the police 

simply failed to timely request the footage. As Officer Buzzard explained it, 

“the system of checks and balances failed.” The trial court found that the 

Commonwealth did not act in bad faith. We agree. This is negligence, not 

bad faith. See, e.g., Montoya v. Romero, 956 F.Supp.2d 1268, 1280 

(D.N.M. 2013) (“[N]egligent destruction of the original or the possibility that 

the proponent tampered with the secondary evidence is likely insufficient for 

bad faith—the purposeful destruction or withholding of original[s] ... and the 

fabrication of secondary evidence will support a finding of bad faith.”) 

(internal quotation marks omitted).2

Unfortunately, this negligence led to the destruction of the evidence. 

But as the Commonwealth did not act in bad faith we cannot find that the 

trial court abused its discretion in admitting the secondary evidence in the 

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1 Moyer relies heavily on Commonwealth v. Ware, 623 A.2d 355 (Pa. 

Super. 1993), which dealt solely with the application of the old common law 

Best Evidence Rule and no exceptions thereto. The Best Evidence Rule was 

codified in the Rules of Evidence in 1998 and while the “rule corresponds to 

the common law,” Pa.R.E. 1002 Comment, also codified was Rule 1004, 

which specifically provides for the admissibility of other secondary evidence. 

Ware is simply inapposite. 

2

“This rule is identical to F.R.E. 1004.” Pa.R.E. 1004 Comment.
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form of the testimony of Officer Buzzard and the store manager. See 1 

WEST’S PA. PRAC., EVIDENCE § 1004-1 (4th ed.) (“If presentation of the original 

is excused under this rule, the proffering party may offer any available 

evidence of the content of the original.”); United States v. Ross, 33 F.3d 

1507, 1513 (CA 11 1994) (“Once the terms of Rule 1004 are satisfied, the 

party seeking to prove the contents of the recording—here, the 

government—may do so by any kind of secondary evidence.”).3

Judgment of sentence affirmed.

Judge Bowes joins in the memorandum.

Judge Platt concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2014

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3 Moyer argues, “[w]ithout the video there was no effective way for the 

Commonwealth to establish Moyer’s intent.” Appellant’s Brief, at 12. But 

there was. That evidence came from the secondary evidence of the 

testimony of Officer Buzzard and the store manager explaining what they 

observed in the video. See, e.g., N.T., Trial, 4/1-2/13, at 148 (store 

manager noting that Moyer laid on the hood of the car and took a shopping 

cart and “then pushed [it] into the yellow Honda[]”); id., at 156 (Officer 

Buzzard noting that Moyer “reared back and shoved the cart forcefully into 

the car[]”). Moyer had the opportunity to cross-examine both of these 

witnesses.