This post examines an opinion from the Superior Court of Pennsylvania: Commonwealth v. Williams, 2015 WL 7722254 (2015). The court begins its opinion by explaining
that
[a]ppellant, Stephen Thomas Williams,
Jr., appeals from the judgment of sentence of, inter alia, a
one-year probation and restitution entered in the Montgomery County Court of
Common Pleas after his conviction for theft by unlawful taking, theft of property lost, and receiving stolen property at a nonjury trial. Appellant claims: (1) the evidence was
insufficient to sustain the convictions; (2) the trial court erred in admitting
testimony regarding the results of a `Find My iPhone’ search; and (3) the verdicts were against the weight of the evidence. We find an abuse of discretion in the trial
court's denial of the Appellant's motion for a new trial, vacate the judgment
of sentence, and remand for further proceedings consistent with this
memorandum.
Commonwealth v.
Williams, supra.
The Superior Court went on to explain that the trial court
judge summarized the prosecution’s evidence as follows:
[The complainant] was working at
Genesis HealthCare in Glenside, Montgomery County, on April 28, 2012. As part
of his duties, he was delivering a cart from the second floor to the maintenance
office in the basement of the building. He proceeded to the basement using an
elevator. Prior to entering the elevator, [the complainant] checked the time on
his iPhone 4s and put it back in his pocket. After exiting the elevator, and
while pushing the cart up a steep ramp toward the maintenance office, he heard
a sound. Within twenty seconds, he arrived at the maintenance office, found his
iPhone was missing and ran back to the area where he had heard the sound to
look for it.
While looking for the iPhone, [the
complainant] encountered [Appellant], who asked if he had lost something. [The
complainant] did not see anyone else in the area. [Appellant] began to help
[the complainant] look for the iPhone. When it was not located, [the
complainant] returned to the maintenance office to call the iPhone, but it went
directly to voicemail. [The complainant] then used a computer in the maintenance
office to access a `Find My iPhone' application. The application did not indicate a
location for the iPhone at that time. A couple of days later, [the complainant]
tried the application again and it tracked the iPhone to 436 Manton Street in
Philadelphia. [The complainant] learned this was [Appellant's] address and made
a report to police. In addition to the address matching information in
[Appellant's] employment records, police used a LexisNexis program that
indicated [Appellant's] address was 436 Manton Street in Philadelphia. The
database of the Pennsylvania Department of Motor Vehicles also indicated the
same address for [Appellant].
Commonwealth v.
Williams, supra (quoting Trial Ct. Op., 2/5/15, at 1–2). The court also
noted that “the phone was not recovered by the complainant or the police, and
the complainant purchased a replacement phone.” Commonwealth v. Williams, supra.
The Superior Court went on to explain that
Appellant testified at trial. He denied
seeing the complainant on April 28th or picking up his phone. He conceded his
employment and official records listed his address as 436 Manton Street, but
asserted he did not live there at the time of the incident. Appellant also
called a coworker to testify that he no longer resided at 436 Manton Street.
The trial court, on November 3, 2014,
found Appellant guilty of theft by unlawful taking, theft of property lost, and
receiving stolen property. Appellant waived the preparation of a presentence report, and the court sentenced him that same day to concurrent probationary
terms of one year for theft by unlawful taking and receiving stolen property,
restitution of $211.99, a fine of $250.00, and costs. Appellant timely filed a
post-sentence motion challenging the weight of the evidence, which the trial
court denied on November 19, 2014.
Appellant timely filed a notice of
appeal and complied with the trial court's order to submit a [PennsylvaniaRules of Appellate Procedure] 1925(b) statement. This appeal follows.
Commonwealth v.
Williams, supra.
The § 1925(b) statement, under the Pennsylvania Rules of
Appellate Procedure, is filed by the judge who entered “the order
giving rise to the notice of appeal . . . desires clarification of the errors
complained of on appeal,” he or she “may enter an order directing the appellant
to file of record in the trial court and serve on the judge a concise statement
of the errors complained of on appeal”, i.e., the “Statement.” Commonwealth v. Williams, supra. In this case, Williams claimed there were
three errors:
Are
appellant's convictions for theft by unlawful taking, theft of property lost or
misplaced, and receiving stolen property supported by legally sufficient
evidence of record?
Did
the trial court abuse its discretion when it permitted, over defence objection,
testimony regarding the victim's use of a `find my iphone’
application to allegedly find the location of the his lost cellular telephone?
Did
the trial court abuse its discretion when it denied appellant's motion for a
new trial on the ground that the guilty verdicts were against the weight of the
evidence?
Commonwealth v.
Williams, supra. This post only examines the first two of the alleged
errors outlined above, because the third to a great extent goes to the issue
involved in the first alleged error, above.
The Superior Court addressed each issue, in this order. It
began by noting that
[Williams] first claims the evidence
was insufficient to sustain his conviction for theft. According to [Williams] the
evidence of his `mere presence’ and `the address [the complainant] allegedly
obtained using the ‘Find My iPhone’ application . . .’ was too conjectural and speculative to
conclude he took and kept the phone. . . . `The key piece of
evidence’ was the complainant's testimony that a `computer programme told him
that his missing cellular telephone was located at 436 Manton Street in
Philadelphia.’ . . . `There was no law
enforcement co[rroboration] of the accuracy of the information [the
complainant] claims he received from his use of the ‘Find My iPhone’ and the missing cellular
telephone was never found in Appellant['s] possession or in a location that
could be connected to him.’ . . . No relief is due.
Our standards of review are
well-settled.
In reviewing a claim regarding the
sufficiency of the evidence, an appellate court must determine whether the
evidence was sufficient to allow the fact finder to find every element of the
crimes charged beyond a reasonable doubt. In doing so, a reviewing court views
all the evidence and reasonable inferences therefrom in the light most
favorable to the Commonwealth. Furthermore, in applying this standard, the
Commonwealth may sustain its burden of proof by means of wholly circumstantial evidence. When performing its review, an appellate court should evaluate the
entire record and all
evidence received is to be considered, whether or not the trial court's rulings
thereon were correct. Additionally, we note that the
trier of fact, while passing on the credibility of witnesses and the weight of
the evidence, is free to believe all, part, or none of the evidence.
Commonwealth v. Galvin, 985 A.2d 783 (Supreme
Court of Pennsylvania 2009) (citations omitted) (emphases added). . . .
The court went on to explain that,
`[t]o uphold a conviction for theft by
unlawful taking, the Commonwealth must establish the accused “unlawfully takes,
or exercises unlawful control over, movable property of another with intent to
deprive him thereof.”’ Commonwealth v. Galvin, supra (quoting 18 Pennsylvania
Consolidated Statutes § 3921(a)). Theft of property lost 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 Pennsylvania Consolidated Statutes §
3924. `Receiving stolen property is established by proving that the accused “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 of with intent to restore it to the
owner.”’ Commonwealth v. Galvin, supra (quoting 18 Pennsylvania Consolidated Statutes § 3925(a)).
. . .
Appellant's arguments focus on the
evidence that he took control of the phone after the complainant dropped it.
The trial evidence, when viewed in a light most favorable to the Commonwealth,
provides three pieces of circumstantial evidence that Appellant took control of
the phone. First, the complainant dropped his phone in the basement hallway
between the elevator and the maintenance office. . . . Second, Appellant was
the only person the complainant saw in that location when he returned to look
for his phone less than a minute later. . . .Third, a tracking
application located the phone at Appellant's address several days later. .
. .
Because a review of the sufficiency of
the evidence focuses on the quantum of evidence based on an undiminished
record, see Commonwealth v. Galvin, supra. . ., we do not reassess or discount the record evidence that
the complainant's electronic search revealed the phone was located at
Appellant's address. Thus, the totality of the circumstances provided an
adequate basis for the trial court to infer Appellant took control of the
complainant's phone.
Commonwealth v.
Williams, supra.
The Superior Court then took up the second error Williams
alleged, as noted above. As the court
explained, Williams
contends the complainant's testimony
violated the `best evidence rule’ and suggests `the Commonwealth was required
to produce either a copy of the computer screen . . . or a computer printout’
of the results. Id. at
28–29.
In response, the trial court asserts [that].
. . . `the best evidence rule did not apply’ because the complainant did not
have the means to generate an original writing and there was no evidence of a
bad faith failure to produce a writing. . . .
As to Appellant's `best evidence’
argument, the Commonwealth agrees with the trial court that an original writing
was not required because `there was no recording of the results of the
tracking application. . . . Lastly, the Commonwealth argues any
error in the admission of the complainant's testimony was harmless. . .
Commonwealth v.
Williams, supra.
Earlier, the opinion provides the factual context for the
best evidence rule argument:
We first consider whether Appellant has
waived his hearsay argument. Appellant framed his objections to the subject
testimony as follows:
[Appellant's Counsel]: I have an oral
motion in limine to exclude any
testimony regarding a GPS tracking system that is vaguely referenced in the
Affidavit of Probable Cause.
THE COURT: What is the basis of your
objection?
* * *
[Appellant's Counsel]: Judge, the
Affidavit of Probable Cause makes a vague reference to, quote, GPS tracking
feature. And it is alleged that this tracking feature tracked the missing phone
to a particular address.
So what we have is an out-of-court
basically statement used to—as proof of the matter asserted.
It would be the same thing and they
provided no discovery on the GPS tracking.
* * *
. . . It just says GPS tracking
feature, Your Honor. And I would submit to the Court much like a video that,
first of all, they need a foundation. They need to lay a foundation that this
GPS tracking system is actually something, that it is legitimate, that it has
some sort of accuracy.
And I would submit that I should be
able to cross-examine on that foundation.
THE COURT: Well, I think you do. But
that will go to the weight of the evidence. I am going to deny your motion.
. . . . After the trial court's ruling,
Appellant's counsel placed the following on the record: `[M]y objection to it
is based on two reasons: One, the lack of foundation; and two, the best
evidence rule.’ Id. at 6.
Commonwealth v.
Williams, supra. The Superior Court
went on to point out that, as noted above, Williams had waived the hearsay
objection he tried to argue, but said it would “address his best evidence
argument.” Commonwealth v. Williams, supra.
The Superior Court explained that when it rules on a trial
court’s decision to grant or deny a motion in
limine,
we apply an
evidentiary abuse of discretion standard of review. The admission of evidence
is committed to the sound discretion of the trial court, 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.’
Commonwealth v. Minich, 4 A.3d 1063, 1068 (Pennsylvania Superior Court). . . .
Commonwealth v.
Williams, supra.
The court then outlined the applicable legal standards:
Pennsylvania Rule of Evidence 1002 states: `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.’ Pennsylvania Rules of Evidence
Rule 1002. Rule 1004, however, provides:
An 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;
(b) an original cannot be obtained by
any available judicial process;
(c) the party against whom the original
would be offered had control of the original; was at that time put on notice,
by pleadings or otherwise, that the original would be a subject of proof at the
trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or
photograph is not closely related to a controlling issue.
Pennsylvania Rules of Evidence Rule
1004(a)-(d)
`[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 (Pennsylvania
Superior Court 2003). . . . `If 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 recording.’ Commonwealth v. Dent, supra. . . .
Commonwealth v.
Williams, supra.
The Superior Court went on to find that
[f]ollowing our review, we find no
reversible error. As noted by the Commonwealth, the complainant's testimony was
admissible for non-hearsay purposes, that is, to establish a foundation for a
course of conduct and not prove an element of an offense. See Commonwealth's
Brief at 11–12. Thus, an `original’ was unnecessary to show why the detective
initiated an investigation into [Williams’] association with 436 Manton
Street. See Pennsylvania Rules of Evidence Rule 1002, 1004(d).
Moreover, even if the trial court
admitted the complainant's testimony for the truth of the matter asserted, we
discern no abuse of discretion in its reasoning that there were adequate
explanations for the absence of an original writing. See Pennsylvania
Rules of Evidence1004(a), (b); cf. Commonwealth v. Lewis, 623
A.2d 355 (Pennsylvania Superior Court 1993) (holding best evidence rule
precluded officer's `secondary’ evidence that video recording showed
defendant's companion taking item from store shelf and explanation for
unavailability of tape was unsatisfactory). Thus, we agree with the trial court
that the best evidence rule did not preclude the admission of the complainant's
testimony regarding the results of his electronic search for his phone and that
[Williams’] objections went to the weight rather than admissibility.
Commonwealth v.
Williams, supra.
Finally, the Superior Court explained that
circumstantial evidence was critical to
the trial court's denial of Appellant's motion for a new trial. Although our
review reveals inconsistencies in the complainant's testimony regarding where
he dropped the phone in the basement, it was within the province of the
trial court, as finder of fact, to resolve those inconsistencies. Further, the
gist of the complainant's testimony was unequivocal: he dropped his phone
somewhere in the basement hallway and when he searched for the phone less than
a minute later, Appellant was the only person he saw in the area.
However, the complainant's testimony
regarding the day he lost his phone only established Appellant's presence in
the area of the lost phone. The complainant's electronic tracking of his phone
was the critical evidence underlying Appellant's conviction for unlawfully
taking possession of the phone.
As the proponent of the evidence, the
Commonwealth bore the burden of adducing indicia of reliability supporting the
complainant's testimony regarding the results from the tracking
application. . . . The record, however, is devoid of any foundation
upon which to conclude that his search was reliable or could produce the
purported result. The complainant described the technology as one `that you use
for your Apple devices that show you exactly where the location at for the
device that you may have lost.’ . . .
The investigating detective testified
only that when the complainant reported the incident, he passed along a
handwritten note bearing the 436 Manton Street address. The Commonwealth
adduced no further evidence regarding the actual capabilities of the
application used, i.e., whether it could produce a specific
street address, rather than depict a location on a map. Further, the
Commonwealth failed to establish a foundation that the complainant possessed
the experience or knowledge to use the application properly. Such indicia of
reliability and authenticity were particularly important given the absence of
any objective evidence of results of a tracking application.
Commonwealth v.
Williams, supra.
The court went on to point out that,
[f]urther, the record reveals no
evidence establishing how long the complainant was able to track the phone at
the location or address or whether the phone was stationary or moving. Thus,
even assuming the complainant's testimony was reliable, it established no more
than a passing connection to the purported address.
The totality of the evidence in this
appeal may have been `so clear, direct, weighty, and convincing as to enable
[the fact-finder] to come to a clear conviction, without hesitancy, of the
truth of the precise facts [in] issue.' See Commonwealth v.
Maldonado, 838 A.2d 710 (Pennsylvania Supreme Court 2003) (citations
omitted) (discussing clear and convincing standard). However, the beyond a
reasonable doubt standard requires more.
That latter standard applies in
criminal cases `due to the gravity of the private interests affected[, and] a
societal judgment that, given the severe loss that occurs when an individual is
erroneously convicted of a crime, the public should bear virtually the entire
risk of error.’ Commonwealth v. Maldonado, supra. `The heavy
standard applied in criminal cases manifests our concern that the risk of error
to the individual must be minimized even at the risk that some who are guilty
might go free.’ Commonwealth v. Maldonado, supra.
In light of the foregoing, the trial
court's review of the record and its application of the relevant burden of
proof evince an abuse of discretion in its denial of [Williams’] motion for a
new trial. Further, having reviewed the entire record, a conviction for
unlawfully taking the complainant's phone based on the Commonwealth's decision
to prosecute based upon its acceptance of a hunch, a handwritten note with [Williams’]
address of questionable foundation, and a confirmation that the address was
Appellant's `shocks the conscience.’ Thus, the court's order denying a new
trial must be reversed.
Judgment of sentence vacated. Case
remanded for further proceedings. Jurisdiction relinquished.
Commonwealth v.
Williams, supra. So . . . Williams won.
So . . . Williams won.
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