### J-S41022-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA

v. DANIELL MONIQUE SCOTT

Appellant : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 215 MDA 2020 Appeal from the Judgment of Sentence Entered December 31, 2019 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000752-2019 BEFORE: KUNSELMAN, J., McLAUGHLIN, J., and STRASSBURGER, J.* 

### MEMORANDUM BY McLAUGHLIN, J.: FILED: NOVEMBER 6, 2020 Daniell Monique Scott appeals from the judgment of sentence entered after a jury found her guilty of Retail Theft and Conspiracy. 1 

### Scott challenges the admission of testimony that she claims was precluded by the best evidence rule. We affirm based on the trial court’s opinion. In December 2018, Scott was arrested and charged with retail theft and conspiracy. She and a co-defendant proceeded to a joint jury trial at which a store employee, Andrew Young, testified that he told police that Scott and her co-defendant had attempted to steal a hoverboard. Trial Ct. 1925(a) Op., filed 4/22/20, at 1. Young said that he had viewed a surveillance video and given the police officer copies of timestamped, still photos from the video. He stated

_________________ ____________________ _______ * 

### Retired Senior Judge assigned to the Superior Court. 1 

### 18 Pa.C.S.A. §§ 3929(a)(1) and 903, respectively.

### J-S41022-20

- 2 -

that following the incident, when he attempted to transfer the surveillance video to a disk for the police, he discovered that the video and other files on the system were corrupted. He explained that such corruption cannot result from human error. Young then testified about the contents of the video, over a defense objection based on the best evidence rule. The jury found Scott guilty of the above offenses and the trial court sentenced Scott to six to 12 months’ incarceration. Scott filed a post sentence motion seeking a new trial due to, among other things, an alleged best evidence rule violation. The court denied the motion and this timely appeal followed. Scott raises one issue: “Whether the Trial Court erred by not applying the best evidence rule to prohibit the testimony of witnesses at trial regarding the contents of a surveillance video which was not presented to the defense or presented at trial.” Scott’s Br. at 4 (footnote omitted). We review the admission of evidence for an abuse of discretion. Commonwealth v. Green, 162 A.3d 509, 516 (Pa.Super. 2017) (en banc). Admission of evidence depends on its relevance. “Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.” Id. (quoting Commonwealth v. Resse, 31 A.3d 708, 716 (Pa.Super. 2011) (en banc)). The best evidence rule provides, “An 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.”

### J-S41022-20

- 3 -

Pa.R.E. 1002. If the original has been lost or destroyed, other evidence is admissible to prove the content of the writing, recording, or photograph, so long as the loss or destruction of the original is not by the proponent of the other content having acted in bad faith. See Pa.R.E. 1004; Commonwealth v. Dent, 837 A.2d 571, 589 (Pa.Super. 2003). Here, the trial court determined that the Commonwealth was not required to produce the original surveillance footage because it had been corrupted. The court concluded that “the Commonwealth did not act in bad faith in failing to preserve the video evidence” and it therefore allowed into evidence Young’s testimony. See 1925(a) Op. at 16. After a review of the parties' briefs, the certified record, and the relevant law, we find no error in the trial court's analysis. We thus affirm based on the well-reasoned opinion of the Honorable Maria Musti Cook. We add only that Scott’s reliance on Commonwealth v. Lewis, 623 A.2d 355, 359 (Pa.Super. 1993), is misplaced. There, we held that the explanation for the loss of a videotape subject to the best evidence rule – it could not be found because the filing system for storing tapes was “imprecise”
– was “unsatisfactory” and “secondary evidence” about the content of the videotape was therefore inadmissible. Here, the loss of the video was not due to negligence. Rather, the testimony (which the trial court credited) was that it resulted from computer “corruption” that human error cannot cause. Judgment of sentence affirmed.

### J-S41022-20

- 4 -

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary
Date: 11/06/2020

### IN 

### THE COURT 

### OF COMMON 

### PLEAS OF 

### YORK COUNTY, PENNSYLVANIA CRIMINAL 

### DIVISION COMMONWEALTH OF 

### PENNSYLVANIA
V. 

### DANIELL MONIQUE SCOTT, 

### Defendant/Appellant CP-67-C R-0752-2019



### STATEMENT 

### OF 

### LOWER COURT 

### PURSUANT 

### TO PA.R.A.P. 1925(a)

AND 

### NOW, this 22nd day 

### of April, 2020, 

### upon 

### receipt 

### of a notice 

### that an appeal has been filed in this matter, and in 

### consideration 

### of the Statement 

### of Matters Complained 

### of on 

### Appeal, filed on 

### behalf

### of Daniell 

### Monique Scott (" Defendant"), 

### by and 

### through her attorney, Marc J. Semke, Esquire, the 

### undersigned files 

### this 

### statement pursuant to PA.R.A.P. 1925(a). The reasons for this 

### Court's denial 

### of Defendant's post - sentence 

### motion can be found herein.



### Page 1 

### of 18 Circulated 10/14/2020 08:46 AM

### Factual 

### and Relevant 

### Procedural History: Defendant was charged with 

### retail 

### theft-take merchandise ( Count 1) 

### under 18 PA. CONS. STAT. § 

### 3929(a)( 1), and 

### criminal conspiracy to 

### retail theft (Count 2) under 18 PA. CONS. STAT. §§ 

### 903(a)( 1) 

### and 3929(a)( 1). On 

### March 13, 2019, this 

### Court appointed Attorney 

### Christopher Moore, Esquire, to 

### represent 

### Defendant in the trial proceedings. 

### At 6:07 p.m. on 

### December 12, 2018, 

### Officer Adam Bruckhart was 

### dispatched to Walmart, 1000 

### Town Center Dr. 

### York, PA 17408, 

### for a retail 

### theft. Upon arrival, Andrew 

### Young, a loss 

### prevention officer (" LPO"), reported 

### that Defendant and 

### her co-defendant, Eric Santos, attempted to steal a 

### hoverboard valued at $241.68.
A 

### criminal 

### jury trial 

### took place 

### from 

### November 19 

### to 20, 2019. 

### At the conclusion 

### ofthe

### jury trial, the 

### jury unanimously convicted Defendant, 

### and her co-defendant, Eric Santos, guilty 

### ofboth counts.
A 

### sentencing hearing was held on 

### December 31, 2019. 

### Defendant
was sentenced to 6 to 12 

### months' incarceration in the York 

### County Prison.

Page 2 

### of 18Upon 

### completion 

### of her 

### period 

### of incarceration or her parole, Defendant is 

### required to 

### complete the Courage 

### to Change Program. On January 8, 2020, Attorney Marc J. Semke, 

### Esquire, entered his 

### appearance as 

### Defendant's counsel 

### of record. On January 10, 2020, Defendant, by and through 

### Attorney Semke, filed 

### post - sentence motions for a new trial,

### judgment 

### ofacquittal, and bail after sentencing. On January 22, 2020, this 

### Court 

### Defendant's post - sentence motions. A 

### hearing to 

### address bail was scheduled on February 3, 2020. On February 3, 2020, Defendant, by and through Attorney Semke, filed a notice 

### of appeal to the 

### Superior Court from the 

### judgment 

### of sentence on 

### December 31, 2019, and the denial 

### of her post - sentence motion on January 22, 2020. At the same time, 

### Defendant filed a petition for leave to file an appeal in

### forma pauperis, which was granted. On February 5, 2020, this Court issued an order directing 

### Defendant to file a 

### statement 

### of errors complained 

### ofon appeal. 

### After an 

### extension 

### of time to file, 

### Defendant filed the Rule 1925(b) 

### statement on March 25, 2020. In 

### her Rule 1925(b) statement, Defendant raises four issues: Page 3 

### of 181. The 

### Commonwealth presented insufficient 

### evidence to prove beyond a reasonable 

### doubt that 

### Appellant was 

### guilty 

### of Retail Theft. 

### There was no 

### proof Appellant intended to 

### deprive the 

### merchant 

### of possession 

### of the merchandise as 

### Appellant had not passed the entrance to the 

### customer service desk.
2. The 

### Commonwealth presented insufficient evidence to prove 

### beyond a 

### reasonable doubt that Appellant 

### was guilty 

### of conspiracy to commit Retail Theft. There was no 

### proof Appellant intended to deprive the 

### merchant 

### of possession 

### of the merchandise, and no 

### proof Appellant had agreed or conspired 

### with the co-defendant to commit Retail theft. 3. The Trial 

### Court erred 

### by allowing hearsay testimony regarding 

### the contents 

### of the 

### surveillance video 

### that was 

### not provided 

### to defense counsel 

### or presented at trial. 4. The Trial Court erred by 

### not applying the 

### best evidence rule to 

### prohibit the testimony 

### of witnesses at trial 

### regarding the contents 

### ofa surveillance 

### video. Rule 1925(b) Statement, 03/25/2020.


### Discussion: I. 

### The evidence 

### and testimony 

### presented 

### at 

### trial was sufficient in 

### proving 

### Defendant's intent to 

### deprive the 

### merchant of possession 

### of 

### the merchandise. The 

### Commonwealth sustained its 

### burden in a 

### conviction 

### for 

### retail theft. Defendant alleges 

### that the Commonwealth presented insufficient evidence to prove beyond a 

### reasonable doubt 

### that Defendant was guilty 

### of retail theft. Rule 1925(b) Statement, 03/25/2020, ¶ 1. Specifically, Page 4 

### of 18

### Defendant argues that the Commonwealth failed its 

### burden in 

### proving 

### Defendant's intent to deprive the 

### merchant 

### of possession 

### of the merchandise " as [ Defendant] had not passed the entrance to the 

### customer service 

### desk." Id. This Court finds 

### Defendant's claim 

### unsupported by the evidence 

### of record. Thus, no 

### relief is due. 

### Regarding 

### Defendant's sufficiency claim, the 

### evidence must be 

### reviewed in light most favorable to the verdict winner, 

### giving the prosecution the benefit 

### of all reasonable inferences 

### to be 

### drawn from 

### the evidence. Commonwealth v. Widmer, 744 A.2d 745, 751 ( Pa. 2000). Where 

### the evidence offered to support the 

### verdict contradicts the physical facts, contravenes human experience and the laws 

### of nature, the 

### evidence is 

### insufficient as a 

### matter 

### of law. Id. 

### Evidence is sufficient to support the 

### verdict when it 

### establishes each material element 

### of the crime charged and 

### the commission 

### thereof by the accused, beyond a 

### reasonable doubt. Id.

18 PA. CONS. STAT. § 3929(a)( 1) 

### defines retail 

### theft as follows: A person is guilty 

### of a retail theft 

### if she: takes possession of, carries away, transfers or causes to be carried away or 

### transferred, any merchandise displayed, held, stored or offered for sale by any store or other retail mercantile 

### establishment with 

### the intention 

### of depriving the 

### merchant 

### ofthe possession, 

### Page 5 

### of 18use or benefit 

### of such merchandise without 

### paying the full retail value thereoff.] 18 PA. CONS. STAT. § 3929(a)( 1). The 

### Pennsylvania Superior Court has 

### recognized that " 

### intent can be 

### proven by direct or 

### circumstantial evidence; it may be 

### inferred from acts 

### or conduct or from 

### the attendant circumstances." Commonwealth v. 

### Franklin, 69 A.3d 719, 723 ( Pa. Super. 2013).

This 

### Court finds 

### that there was sufficient evidence for 

### the jury to to deprive 

### Walmart 

### of the possession 

### ofthe hoverboard.
Both Defendant and co-defendant, Eric Santos, 

### provided testimony at trial. 

### Defendants 

### testified that they went to the store 

### with a 

### vacuum 

### cleaner, and a 

### receipt to 

### exchange it for a 

### hoverboard. Id. at 191-92. However, all 

### three 

### witnesses 

### of the 

### Commonwealth-Sabrina Santiago, 

### Andrew Young, and Sergeant Adam 

### Bruckhart-offered drastically different 

### testimonies from 

### both defendants' statement.
Sabrina Santiago, customer host for Walmart, 

### provided her 

### testimony 

### for the 

### Commonwealth at trial. Sabrina Santiago was 

### trained 

### to Page 6 

### of 18look for signs 

### of theft to help Walmart prevent thefts. N.T. Trial, 11/19/2019, at 

### 90-91. Based on 

### her testimony, Sabrina Santiago was 

### stationed at the 

### general merchandise exit 

### of Walmart when Defendant 

### and Eric Santos came to her door. Id. at 

### 92-94. She noticed 

### that Defendant 

### and Eric 

### Santos had an expensive hoverboard in 

### their cart. Id. at 

### 92-93. She then 

### stopped them and 

### asked for a receipt. Id. at 93. 

### During the entire


### course 

### of the interaction, 

### neither Defendant nor Eric Santos was able to 

### produce a 

### receipt for the hoverboard. Id. Sabrina Santiago further explained 

### that 

### Defendant and Eric Santos had to turn in the opposite direction 

### ofthe customer service desk in 

### order to get to her. Id. at 98. 

### Andrew Young, loss 

### prevention officer for Walmart at 

### the time 

### of incident, also presented his testimony for the 

### Commonwealth at trial. 

### Andrew Young stated 

### that he was called over by Sabrina Santiago. N.T. Trial, 11/20/2019, at 

### 136-37. According to his testimony, Defendant 

### and Eric Santos told 

### Andrew Young that " they 

### brought the hoverboard 

### and a vacuum cleaner in for a return and 

### that they were items 

### that belong to 

### them." Id. at 

### 138-39. However, at no time did 

### Defendant and Eric Santos provide 

### a 

### receipt for the 

### hoverboard to 

### Andrew Young. Id. at 147. Also, Page 7 

### of 18

### Andrew Young pointed out 

### that he 

### watched the surveillance video 

### twice to 

### confirm that Defendant 

### and Eric Santos came into 

### the store only with a vacuum cleaner. Id. at 139-42.

In addition, Andrew Young provided his testimony as to the contents 

### of the surveillance video at trial, as well as the 

### timestamped still 

### photographs from the video. Based on 

### Andrew 

### Young's testimony and 

### exhibits proffered at trial, 

### Defendant and Eric Santos did 

### enter the store, 

### but only with the vacuum cleaner." Id. at 140-41. Defendant and Eric Santos then placed the vacuum cleaner into a shopping cart. Id. at 141. There was 

### nothing else in 

### that cart 

### besides the 

### vacuum cleaner. Id. at 142. 

### Defendant and Eric Santos proceeded to the toy department with only the
vacuum in the cart and no hoverboard. Id. at 143. In the toy department, after Defendant and Eric Santos selected the 

### hoverboard from the shelf, they 

### placed it on the bottom 

### of their cart. Id. at 144. 

### Defendant and Eric Santos subsequently went towards the front 

### of the store. Id. " 

### They then both proceeded to walk through the [ 

### self - checkouts] and attempted to exit the store." Id.

Page 8 

### of 18Defendants disagreed 

### with Andrew Young. Co-defendant, 

### Eric Santos, 

### testified that, after he and 

### Defendant placed the 

### hoverboard 

### underneath the cart, they " 

### did [ their] little 

### shopping," and 

### purchased 

### knickknacks for the house," " 

### toiletries," or deodorant. Id. at 192. Eric Santos emphasized 

### that they paid for 

### their items at the checkout. Id. 

### Defendant also offered 

### her testimony, consistent with Eric 

### Santos' statement. Id. at 

### 200-01. However, evidence and testimony 

### proffered at trial showed that 

### Defendant and Eric Santos walked 

### towards the front 

### of the store almost instantly after they placed the 

### hoverboard into 

### their cart. The timestamped photographs presented at trial indicated that, there were no 

### other items except 

### the vacuum cleaner in Eric 

### Santos' cart 

### around 5:31 p.m. 

### Exhibit 3. 

### Defendant and Eric Santos selected the 

### hoverboard and 

### placed it on the bottom 

### oftheir cart around 5:33 p.m. 

### Exhibit 4. Police were called at 6:07 p.m. 

### Both Defendant and Eric Santos confirmed 

### that it was approximately 30 minutes that they stood at the front 

### of the store after 

### they were confronted by 

### Sabrina Santiago. Id. at 196, 204.

Page 9 

### of 18

### Officer Adam 

### Bruckhart, Sergeant 

### of the West 

### Manchester Township 

### Police Department, provided his testimony at trial. 

### Sergeant Bruckhart indicated 

### that he was able to find Defendant in the parking lot and 

### talk 

### to her. Id. at 167. Sergeant 

### Bruckhart stated 

### that 

### he asked Defendant 

### whether she had a 

### receipt for the hoverboard. Id. at 168. " 

### She told me 

### that she 

### did." Id. However, " she was not able to find the hoverboard receipt." Id. 

### Consistent with 

### Andrew 

### Young's testimony, Sergeant 

### Bruckhart provided that:

Defendant] explained to me that she arrived at the store with her 

### boyfriend. They came in an Uber. When they 

### arrived at the store, they had a vacuum 

### cleaner 

### and a 

### hoverboard in 

### their possession and that 

### they took 

### these items from the 

### Uber into the store. Then they 

### intended to exchange those items 

### for a return and had not done so and 

### that they were leaving the 

### merchandise that they had brought in. Id. at 169. Considering the 

### foregoing evidence and testimony offered at trial, this Court finds 

### Defendant and her 

### co-defendant's testimony not credible. Under Franklin, there was ample circumstantial evidence 

### proving that 

### Defendant intentionally took possession 

### of the 

### hoverboard, without 

### paying the full retail value. Page 10 

### of 18

### Therefore, under Widmer, 

### viewing the 

### combination 

### of evidence in the light most favorable to the 

### Commonwealth as 

### verdict winner, the 

### jury could 

### properly infer 

### that Defendant had the intent to deprive 

### the Walmart 

### of its 

### possession 

### of the hoverboard. Accordingly, 

### Defendant's first claim 

### merits no relief.


### II. The evidence 

### and testimony 

### presented 

### at trial was 

### sufficient in 

### proving 

### that Defendant had 

### agreed 

### or conspired with the co

### defendant to 

### commit 

### retail theft. Defendant asserts that the 

### Commonwealth 

### presented insufficient evidence to 

### prove beyond a reasonable 

### doubt that Defendant 

### was guilty 

### of conspiracy to 

### commit retail 

### theft. Rule 1925(b) Statement, 03/25/2020, ¶ 2. 

### Specifically, Defendant argues that 

### there was no 

### proof Defendant " had agreed or conspired with the co-defendant to 

### commit retail 

### theft." Id. 

### Defendant's claim has no basis. 

### Pursuant to 18 PA. CONS. STAT. § 903(a), conspiracy is defined as follows: A person is guilty 

### of conspiracy with 

### another person or persons to 

### commit a crime 

### if with the intent 

### of promoting or facilitating its 

### commission he: 1) agrees with such 

### other person or persons that they or one or more 

### ofthem will engage in 

### conduct which constitutes such crime or an attempt or solicitation to commit such crime[.] Page 11 

### of 1818 PA. CONS. STAT. § 903(a)( 1). The 

### Pennsylvania 

### Superior Court, in 

### Commonwealth v. 

### Lambert, acknowledged 

### that a 

### conspiracy can be proved by circumstantial 

### evidence: A conspiracy is almost always proved through 

### circumstantial evidence. The conduct 

### of the parties and the circumstances surrounding 

### their conduct may create a web 

### of evidence linking the accused to the alleged 

### conspiracy beyond a reasonable doubt. 795 A.2d 1010, 1016 ( Pa. Super. 2002). The circumstantial evidence in this 

### case, as 

### previously outlined, supports the conclusion 

### that 

### Defendant was 

### involved in a 

### conspiracy with her 

### co-defendant, Eric Santos, to commit 

### the retail theft at the Walmart. Defendants told both 

### Andrew Young and Sergeant 

### Bruckhart that they had brought the vacuum cleaner 

### and the 

### hoverboard into the store for exchange. This was 

### contradicted by the photographic evidence. 

### Defendant's statements are evidence 

### of the conspiracy. 

### Therefore, under Widmer, 

### Defendant's second 

### claim is meritless.

Page 12 

### of 18

### III. Trial 

### Court did 

### not 

### err in 

### admitting the testimony 

### regarding 

### the contents of 

### the surveillance video. 

### Trial Court did not 

### err in 

### not 

### applying the best evidence 

### rule. Defendant argues 

### that this Court erred by 

### allowing the testimony as to the contents 

### of the surveillance video, which was not 

### provided to the defense counsel or 

### presented at trial. Rule 1925(b) Statement, 03/25/2020, 3. Further, Defendant alleges 

### that this Court erred in not applying the 

### best evidence rule by 

### admitting the 

### testimony 

### ofwitnesses at trial 

### regarding the 

### contents 

### ofthe surveillance video. Id. ¶ 4.
The 

### best evidence rule in the 

### Pennsylvania Rules 

### of Evidence provides that: " 

### An 

### 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. Evid. 1002. With 

### respect to the " 

### missing evidence," the 

### Pennsylvania Supreme 

### Court has explained that:
The Due Process Clause 

### of the Fourteenth 

### Amendment requires 

### defendants be 

### provided access to certain kinds 

### of evidence prior to trial, so they may ' 

### be afforded a 

### meaningful opportunity to present a complete defense.' This guarantee 

### of access to evidence requires the 

### prosecution to turn over, 

### if requested, any evidence which is exculpatory and material to Page 13 

### of 18

### guilt or 

### punishment, 

### and to 

### turn over 

### exculpatory evidence which might raise 

### a reasonable 

### doubt about a 

### defendant's guilt, 

### even 

### if the defense fails to 

### request it. 

### If a 

### defendant 

### asserts 

### a Brady or Agurs violation, he is not required to 

### show bad faith. 

### There is 

### another category 

### of constitutionally 

### guaranteed access 

### to 

### evidence, which involves evidence that is 

### not 

### materially exculpatory, but is potentially 

### useful, 

### that is 

### destroyed by 

### the state before the defense has an opportunity to 

### examine it. 

### When the 

### state fails 

### to preserve evidence 

### that is ' 

### potentially 

### useful,' there is no federal due process violation ' 

### unless a 

### criminal defendant 

### can show 

### bad faith on the 

### part 

### of the 

### police.' Potentially useful evidence is 

### that 

### ofwhich ' 

### no more can 

### be said than that it could 

### have been subjected to tests, the 

### results 

### of which might have 

### exonerated the defendant.' 

### In evaluating a 

### claim that the 

### Commonwealth's failure to preserve evidence 

### violated a criminal 

### defendant's federal due process rights, a 

### court must first determine 

### whether the 

### missing evidence is 

### materially exculpatory or potentially 

### useful. Commonwealth v. 

### Chamberlain, 30 A.3d 381, 402 ( Pa. 

### 2011) ( internal citations 

### omitted).

In 

### Commonwealth v. Williams, 

### the Pennsylvania Superior Court reversed the trial 

### court's decision in 

### suppressing testimony 

### relating to the contents 

### of a 

### surveillance video that had 

### been lost. 154 

### A.3d 336, 341 ( Pa. Super. 2017). The Williams court reasoned 

### that the testimony 

### relating 

### to the contents 

### of the video should be allowed because " 

### the lost 

### surveillance

Page 14 

### of 18video footage was only 

### potentially useful and the police did not act in 

### bad faith in 

### failing to 

### preserve it." Id. (emphasis added).


### Andrew Young offered his testimony as to the 

### unavailability 

### of the surveillance 

### video at trial. 

### Andrew Young had been a loss 

### prevention officer at the 

### Walmart for four years at the time 

### of the incident. N.T. Trial, 11/19/2019, at 101. He confirmed 

### that he is familiar with the surveillance system in the Walmart. Id. at 102. He had previously 

### utilized the system
as a 

### part 

### of his 

### job as a loss 

### prevention officer. Id.


### Andrew Young testified that he did save the footage before burning 

### the footage onto a disk. Id. at 103-04. 

### When he was 

### told by Sergeant Bruckhart 

### that he was on his way to pick up the discs, 

### Andrew Young 

### attempted to burn the footage onto a disk for his arrival. Id. However, when he 

### went to do 

### that, Andrew 

### Young discovered that footage along with other saved files had been corrupted. Id. at 104. He pointed out that,


### never in the four years 

### of being a loss prevention 

### officer, had he been able to 

### recover video 

### with this 

### type 

### of corruption. Id. In addition, Andrew

Page 15 

### of 18

### Young denied that he caused the corruption in the video footage. Id. Also, he stated that human error cannot cause this type 

### of corruption. Id. at 108.

In addition, Sergeant Bruckhart provided his 

### testimony that he followed 

### the standard 

### procedure. Id. at 115. He 

### stated that it was not the standard procedure to obtain a copy 

### ofthe video during the incident where there is someone in custody. Id. He 

### further stated that 

### he did not 

### cause the video to be 

### unavailable for the trial. Id. at 116. 

### Both Andrew Young and 

### Sergeant Bruckhart testified that they had an 

### opportunity to 

### watch 

### the video on the day 

### of incident. Id. at 102, 115. 

### Considering that the 

### Commonwealth 

### provided the timestamped still 

### photographs from the video 

### of the incident; 

### parties stipulated that both defendants 

### were in the Walmart on the date 

### of incident; and 

### there was no dispute as to the 

### existence 

### of the hoverboard in the cart, this 

### Court finds that the surveillance video is 

### not materially exculpatory under Chamberlain. Further, based on the testimony 

### made by 

### Andrew Young and Sergeant 

### Bruckhart at trial, 

### the Commonwealth did not 

### act in 

### bad faith in failing to 

### preserve the 

### video evidence. Like Williams, since the video Page 16 

### of 18evidence 

### herein was only 

### potentially useful and the 

### Commonwealth did 

### not act in bad faith in 

### not preserving the evidence, this Court concludes 

### that Andrew Young 

### and Sergeant Bruckhart were properly allowed 

### to testify regarding 

### their observations 

### of the surveillance video. See N.T. Trial, 11/19/2019, at 

### 126-27. Accordingly, 

### Defendant's claim as to the 

### admissibility 

### of the 

### testimony regarding the contents 

### ofthe surveillance video, again, merits no relief.


### Conclusion: Based on the above reasons, this Court respectfully 

### urges affirmance 

### ofthis 

### Court'sjudgment 

### of sentence entered on 

### December 

### 31,2019.
The 

### Clerk 

### of Courts is directed to provide notice 

### of the entry 

### ofthis Statement to the York County District 

### Attorney's Office, Attorney Marc J. Semke, Esquire, Counsel for Defendant and Defendant, Daniell Monique Scott.

Page 17 

### of 18BY 

### THE COURT,



### MARIA MUSTI COOK, JUDGE

Page 18 

### of 18