J-S38014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL DORSEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2370 EDA 2018

Appeal from the Judgment of Sentence Entered March 1, 2018

In the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0008236-2016

BEFORE: OTT, J., DUBOW, J., and COLINS, J.

MEMORANDUM BY OTT, J.: FILED AUGUST 26, 2019

Michael Dorsey appeals, nunc pro tunc, from the judgment of sentence 

imposed on March 1, 2018, in the Philadelphia County Court of Common Pleas. 

The trial court sentenced Dorsey to a term of 21⁄2 to 5 years’ imprisonment

following his non-jury conviction of receiving stolen property.

1 On appeal, 

Dorsey challenges an evidentiary ruling. For the reasons that follow, we 

affirm.

____________________________________________

 Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 3925.
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We take the underlying facts and procedural history in this matter from 

our review of the certified record. The instant matter arises out of Dorsey’s 

theft of $260.00 in petty cash from his employer, who is also Dorsey’s brother. 

At trial, Dorsey’s sister-in-law, Juanita Dorsey (“Sister-in-law”) testified 

that, on May 31, 2017, she placed a white envelope containing $260.00 in 

petty cash in her husband’s,

2 John Dorsey’s (“Brother”) desk at his auto body 

shop. Sister-in-law testified that, after so doing, she locked Brother’s office 

door and left for the day. She explained that Brother’s office has a separate 

key from the main shop door. She said that only four people have keys to 

that door: herself, Brother, Brother’s son Cecil (“Nephew”), and another 

employee. Dorsey did not have a key to the door. The next morning, at 

around 8:00 a.m., Sister-in-law was the first to arrive at the business, and 

indicated this was surprising to her because Dorsey normally arrived first. 

When Sister-in-law opened Brother’s office door and checked his desk, the 

money was gone. A few minutes after Sister-in-law arrived, she saw Dorsey 

getting off his bus. Sister-in-law also noted the business had a video 

surveillance system. She stated that she was unfamiliar with the system and 

Nephew was the only person who knew how to use it.

____________________________________________

2 At the time of the incident, Sister-in-law was engaged to Brother. They 

subsequently married.
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Brother also testified at trial. He stated that, immediately upon his 

arrival, Sister-in-law informed him about the missing money. He gathered his 

employees and spoke with them but no one confessed to taking the money. 

One of them reminded him about the video surveillance system. Although 

Brother had installed the system approximately five years previously, he had 

never read the manual or used the system. Over defense counsel’s objection, 

as discussed in detail below, the trial court permitted Brother to testify about 

what he viewed on the footage.

Brother averred that the video footage showed the arrival of the tenant 

who rented the other half of the building at approximately 7:30 a.m. Dorsey 

arrived right behind him and the two men greeted each other. Dorsey walked 

past the reception area, past Brother’s office, and into the work area. Less 

than ten minutes passed before Dorsey walked back past the camera holding 

the same bag he carried in, went down the stairs, and outside the building. 

The video showed Dorsey stuffing a white envelope into his right front pants’ 

pocket. After Dorsey left, the video did not show him again until he came 

back to work from the direction of the bus stop approximately 45 minutes 

later.

After Brother accused Dorsey of the theft, they got into a physical 

altercation that other employees broke up. Brother fired Dorsey and ordered 

him to leave the residence, owned by Brother, in which Dorsey lived. Dorsey

ran into the work area and grabbed his bag. He then returned holding a gun, 
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which the police later determined to be a b.b. gun, and pointed it at Brother. 

Dorsey threatened to kill everyone and burn down the house he was living in. 

Ultimately, Dorsey left the area. Brother called the police and reported the 

crime. The police arrested Dorsey as he was getting out of the passenger side 

of a car at his residence. They found $244.00, in the denominations of cash 

detailed to them by Brother, in his right front pants’ pocket. 

Brother testified he showed a female police detective the video footage. 

He could not remember her name. He did not remember when she viewed it. 

He stated she did not have equipment with her to store a copy of the video

footage. Brother acknowledged the detective told him that she would be 

returning to make a copy of it. Brother averred that, when he installed the 

video system, he left all the settings on automatic; this meant that the system 

deleted footage and recorded over it every 24 hours. Thus, when the detective

returned, the footage was gone. Brother did not remember what day she 

returned but said it was very close in time to when she originally viewed the 

footage. He stated he did not remember that the video system would record 

over old footage. He testified the police officer did not ask him to preserve 

the footage. Brother admitted he did not furnish the police officer with any 

information about the video system.

As noted above, defense counsel objected strenuously to Brother’s 

testimony about the contents of the video footage pursuant to the best 

evidence rule and the Confrontation Clause of the Sixth Amendment of the 
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United States Constitution. Counsel acknowledged that, under the current 

law, it was the defense’s burden to prove that the Commonwealth acted in 

bad faith by failing to preserve the video. See N.T., 8/15/2017, at 45. 

Defense counsel admitted that Brother did not act in bad faith but claimed 

that, by not bringing equipment with her on the first visit and by not telling 

Brother to preserve the video, the detective acted in bad faith. Id. at 60. 

Counsel maintained that the detective knew or should have known that the 

system would reset itself in the interim between the first and second visits. 

Id. The trial court disagreed, holding that, as the record stood, the 

Commonwealth did not act in bad faith. Id. at 62-63. 

Following the close of Brother’s testimony, defense counsel requested 

the court bifurcate the trial with respect to the video footage. Counsel argued

there was a discrepancy between the testimony of Sister-in-law and Brother 

with respect to Nephew’s role in the maintenance of the video system and 

wished to call both Nephew and the detective who viewed the video footage 

as part of defense’s case-in-chief. Id. 102-104. The trial court agreed to 

issue subpoenas for Nephew and the detective. Id. at 122-124.

The trial resumed on December 20, 2017. Defense counsel did not call 

either witness and there was no further discussion regarding the video

footage. The trial court found Dorsey guilty of receiving stolen property and 

not guilty of a plethora of other offenses.
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During the interval between the end of the trial and sentencing, the trial 

judge left the bench. On March 1, 2018, after receipt of a pre-sentence 

investigation report, the new judge sentenced Dorsey as noted above. Dorsey 

did not file a notice of appeal.

On April 4, 2018, Dorsey, acting pro se, filed a petition pursuant to the 

Post-Conviction Relief Act seeking reinstatement of his direct appeal rights.3 

Following appointment of counsel, the PCRA court granted the petition on July 

31, 2018. Dorsey filed a timely notice of appeal on August 2, 2018.4 

In his only issue on appeal, Dorsey argues the trial court’s ruling 

permitting Brother to testify regarding his observations of Dorsey’s actions on 

the body shop surveillance video violated the “best evidence rule.”5 See

Dorsey’s Brief at 4. Our review of an evidentiary challenge is well established:

The admission of evidence is solely within the discretion of the

trial court, and a trial court’s evidentiary rulings will be reversed 

on appeal only upon an abuse of that discretion.” An abuse of 

discretion will not be found based on a mere error of judgment, 

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3 42 Pa.C.S.A. §§ 9541-9546.

4 On August 23, 2018, the trial court issued an order directing Dorsey to file 

a concise statement of errors complained of on appeal. Dorsey filed a timely 

Rule 1925(b) statement on September 11, 2018. On September 21, 2018, 

the trial court issued a letter stating that the only issued raised on appeal 

concerned an evidentiary ruling by the first trial judge and, therefore, referred

this Court to the portion of the transcript containing the ruling.

5 At trial, defense counsel also argued that the testimony violated the 

Confrontation Clause of the Sixth Amendment to the United States 

Constitution. See N.T. Trial, 8/15/2017, at 42-44. However, counsel has not 

raised this claim on appeal and we will not address it. Dorsey’s Brief, at 17-

26.
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but rather occurs where the court has reached a conclusion that 

overrides or misapplies the law, or where the judgment exercised 

is manifestly unreasonable, or the result of partiality, prejudice, 

bias or ill-will.

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (internal 

citations omitted), cert. denied, 137 S.Ct. 92 (2016).

We have codified the “best evidence rule” in the Pennsylvania Rules of 

Evidence. Specifically, Rule 1002, in pertinent part, requires a party to 

introduce “[a]n original writing, recording, or photograph ... in order to prove 

its content[.]” Pa.R.E. 1002. However, Rule 1004 provides an exception to 

this general rule when, inter alia, “all the originals are lost or destroyed, and 

not by the proponent acting in bad faith[.]” Pa.R.E. 1004(a). As we have 

explained, “[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), appeal 

denied, 863 A.2d 1143 (Pa. 2004).

Dorsey claims the trial court erred in permitting Brother to testify 

regarding the contents of the missing surveillance footage. He maintains the 

police mishandled the situation by allowing the video footage to remain with 

Brother without making their own copy. See Dorsey’s Brief at 15. Dorsey 

maintains the admission of Brother’s testimony about the contents of the 

footage was not harmless error because there was no other evidence 

connecting Dorsey with the theft. Id. at 15-16. Dorsey asserts this Court’s 
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decision in Commonwealth v. Lewis, 623 A.2d 355 (Pa. Super. 1993), is 

controlling. We disagree.

In Lewis, supra, the police arrested the defendant after he and a cohort 

attempted to shoplift from a store. A store security guard, who observed their 

activities, apprehended the pair as they left the store. See id. at 356–357. 

At trial, and over defense counsel’s objection, the responding police officer 

testified regarding his observations of the defendant as recorded on a store 

security camera. The Commonwealth did not present the actual recording as 

evidence. See id.

On appeal, a panel of this Court held the police officer’s testimony, 

absent introduction of the video itself, violated the best evidence rule. A panel 

of this Court stated:

We find that the facts in the instant case present the same type 

of circumstances which the best evidence rule was designed to 

guard against: a witness is attempting to testify regarding the 

contents of a videotape when the tape itself has not been admitted 

into evidence. The need to secure the original evidence itself, in 

order to insure that the contents of the evidence be given the 

proper weight, is apparent in this case. Thus, the best evidence 

rule should apply, in order to prevent any mistransmission of the 

facts surrounding Appellant’s acts in the Sears store which might 

mislead the jury.

Id. at 358. In addition, the panel found the explanation provided for the 

unavailability of the videotape was unsatisfactory, namely, that the tapes were 

stored in the basement of the Sears store and the classification system was 

“imprecise.” Id. at 359. Furthermore, the panel concluded the admission of 

the officer’s testimony was not harmless error. Id.
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Here, we conclude the facts in the present matter are distinguishable 

from Lewis. Pursuant to Rule 1004, other evidence of the contents of a video 

recording is admissible when, inter alia, the original is lost or destroyed 

“unless the proponent lost or destroyed [it] in bad faith[.]” Pa.R.E. 1004(a). 

In Lewis, this Court found the explanation for the unavailability of the original 

surveillance tape “unsatisfactory.” Lewis, 623 A.2d at 359. The record did 

not show that the tape was lost or destroyed; the security guard simply 

testified he was unable to locate the tape because the classification system 

was “imprecise.” Id.

However, here, there is no dispute the surveillance video was 

unavailable at the time of trial. See N.T. Trial, 8/15/2017, at 48-49. Also, 

the record reflects the detective did attempt to secure a copy of the video 

footage but because of the system settings, it was erased. Id. at 56, 59-60. 

As noted above, defense counsel agreed that no fault attached to Brother. 

Moreover, her contention that the detective knew or should have known that 

the video system would reset itself is mere speculation. Further, while counsel 

made much of the fact that the detective did not specifically tell Brother to 

preserve the video, she did tell him she would be returning to make a copy of 

it. Certainly, implicit in that statement is an expectation that, when she 

returned, the footage would still be available. Importantly, we note that 

counsel acknowledged it was the defense’s burden to prove bad faith. Id. at 

45; see also Commonwealth v. Williams, 154 A.3d 336, 340 (Pa. Super. 
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2017) (holding defense required to show Commonwealth acted in bad faith in 

failing to preserve evidence). Counsel asked for, and the trial court gave her,

a bifurcation in order to call the detective in question as a witness. For reasons 

that are not apparent on the record, counsel chose note to do so. The trial 

court stated, “I see no bad faith[.]” N.T., 8/15/2017, at 62. Based on our 

standard of review, we find no reason to disagree. Dorsey is not entitled to 

relief on this issue. See Williams, 154 A.3d at 340-341 (holding that trial 

court erred in not permitting store owner and police officer to testify as to 

what they saw on video footage because there was no bad faith shown on part 

of Commonwealth when store owner inadvertently destroyed footage).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/26/19