J-S22037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DEWAYNE HOLLAND                            :
                                               :
                       Appellant               :      No. 11 EDA 2017


          Appeal from the Judgment of Sentence November 18, 2016
             in the Court of Common Pleas of Philadelphia County
              Criminal Division at No.: CP-51-CR-0007559-2015


BEFORE:      BENDER, P.J.E., STABILE, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                 FILED JUNE 26, 2018

        Appellant, Dewayne Holland, appeals from the judgment of sentence

imposed following his bench conviction of attempting to acquire a controlled

substance by misrepresentation, fraud, forgery, deception or subterfuge.1 We

affirm.

        We take the following pertinent facts and procedural background from

the trial court’s May 16, 2017 opinion and our independent review of the

record. Appellant was arrested on November 17, 2014 after presenting an

altered prescription for oxycodone tablets at Walgreens Pharmacy. On April

26, 2016, Appellant waived his right to a jury trial. A bench trial commenced

that day.

____________________________________________


1   18 Pa.C.S.A. § 901(a) and 35 P.S. § 780-113(a)(12).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Amanda Dinmore, Walgreen’s pharmacy manager, testified that

Appellant presented a prescription for oxycodone. The prescription appeared

to be altered, from a quantity of twenty-one to eighty pills.         When the

Commonwealth showed her a copy, made by the pharmacy, of the original

prescription, defense counsel objected, stating, “There’s a genuine question

here that we’re raising about the authenticity of that photocopy.” (N.T. Trial,

4/26/16, at 13); (see id. at 12). When questioned by the trial court about

the location of the original, Ms. Dinmore stated that she could not remember

whether it was in her file, or if she gave it to the police. (See id. at 13-14).

When the prosecutor observed that defense counsel was only raising a general

objection, but not identifying any actual discrepancies between the original

and the copy, defense counsel stated that that was a question of fact for the

trial court. (See id. at 15). The court denied counsel’s objection.

      Thereafter, Ms. Dinmore testified that, when Appellant presented her

with the oxycodone prescription, it appeared that the quantity was altered.

(See id. at 17).    Specifically, she testified that “[t]he quantity said 80 in

numbers 8 zero, but underneath in Roman Numerals it said XXI[,] which is

21. So I took a closer look and I could see that it looks like it was 21 and then

written over 80.” (Id.). On cross-examination, defense counsel presented

her with a carbon copy of the prescription from the prescribing doctor’s pad.

When asked why the “1” on the photocopy of the original given to her, and on

the carbon copy from the doctor’s pad, appeared to be in slightly different


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places, Ms. Dinmore explained that the “carbon copy [] could have slid a

little[]” while the doctor was writing the prescription, causing the number to

shift. (Id. at 27). She affirmed that she had not altered the prescription, and

that the photocopy was the same as the original she observed on November

17, 2014. (See id. at 26-27).

       Dr. Brent Weinerman testified that he wrote the prescription for twenty-

one oxycodone pills for the treatment of Appellant’s pain. (See id. at 30-31,

35).   He stated that he wrote the number twenty-one, and then XXI, the

Roman numeral representing the number. (See id. at 34). He explained that

he would never prescribe eighty oxycodone pills to anyone, and had not

written the number eighty on Appellant’s prescription. (See id. at 31-32, 35).

When Appellant’s counsel asked him about an alleged loop on the “O” on the

carbon copy that was not on the photocopy, Dr. Weinerman said, “[T]here’s

not really a loop. It looks like something was impressed over it[.] [I]t’s an

‘O’.” (Id. at 38).

       Appellant testified on his own behalf.        He denied altering the

prescription.   He maintained that the copy provided in evidence by the

pharmacy was different from the original he had given them to be filled. (See

id. at 46-47). Specifically, the following exchange occurred:

       Q.    You reviewed copies of the prescriptions that were contained
       in the discovery?

       A.    Yes.




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       Q.    Did you notice anything in comparing those prescriptions[,]
       did you notice anything of concern to you?

       A.      Yes.

       Q.      Tell us what that was?

       A.      On them scripts, okay, is different handwritings.

       Q.      How do you know?

       A.     I could see it. I could see it. The “X” is small, on my script,
       but big on his script. The “O” is cursive on his fax cover sheet,
       and on his carbon copy that he says is a carbon copy is different.
       It says . . . 11/11/14. But on my script it looks like 11/12/14. It’s
       right here because the police even wrote on their copy that my
       script says 12, it says it in the paperwork that my script says 12,
       but on here it says 11. So I reviewed everything. The “T” right
       here, the “T” right here is crossed but on his it’s not crossed. At
       the top it got an [sic] DEA Roman numerals.

(Id. at 46).

       At the conclusion of the bench trial, the trial court convicted Appellant

of the aforementioned crime. On November 18, 2016, it sentenced him to a

term of incarceration of not less than three nor more than six years. The court

denied Appellant’s timely post-sentence motion on November 28, 2016.

Appellant timely appealed.2

       Appellant raises one question for this Court’s review:       “Whether the

[c]ourt erred when it overruled a defense objection pursuant to Pa. Rules of

Evidence 1002 and 1003 to the admission of written evidence?” (Appellant’s



____________________________________________


2Appellant filed a statement of errors complained of on appeal on January 26,
2017. The court filed an opinion on May 16, 2017. See Pa.R.A.P. 1925.

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Brief, at 6). Specifically, Appellant maintains that, because “[t]he contents of

the original prescription form constituted one of the elements of the

offense[,]” and he “needed the original prescription form to prove during his

testimony that the original and the photocopies contained discrepancies[,]”

the trial court abused its discretion in allowing the admission of the photocopy.

(Id. at 14). We disagree.

      The following legal principles guide our analysis of Appellant’s issue.

            In reviewing a trial court’s ruling on the admissibility of
      evidence, our standard of review is one of deference. It is firmly
      established that [q]uestions concerning the admissibility of
      evidence lie within the sound discretion of the trial court, and [a
      reviewing court] will not reverse the court’s decision on such a
      question absent a clear abuse of discretion. An abuse of discretion
      requires:

            not merely an error of judgment, but where the
            judgment is manifestly unreasonable or where the law
            is not applied or where the record shows that the
            action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Giles, 182 A.3d 460, 461-62 (Pa. Super. 2018) (citations

and quotation marks omitted).

             [The common-law best evidence] rule is codified in
      Pennsylvania Rule of Evidence 1002, which 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.” Pa.R.E. 1002. Courts
      apply the best-evidence rule when the contents of documentary
      evidence are at issue—that is, if the terms of a writing must be
      proven to make a case or provide a defense. Thus, Rule 1002
      requires that an original writing, recording, or photograph be
      introduced at trial only if the proponent must prove the contents
      of the writing, recording, or photograph to prove the elements of
      its case.


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Commonwealth v. Ribot, 169 A.3d 64, 67 (Pa. Super. 2017) (citations,

emphasis, and quotation marks omitted). However, Rule 1003 provides, “[a]

duplicate is admissible to the same extent as the original unless a

genuine question is raised about the original’s authenticity or the

circumstances make it unfair to admit the duplicate.” Pa.R.E. 1003 (emphasis

added). The Comment to Rule 1003 observes that:

             Under the traditional best evidence rule, copies of
      documents were not routinely admissible. This view dated back
      to the time when copies were made by hand copying and were
      therefore subject to inaccuracy. On the other hand, Pennsylvania
      courts have admitted copies made by techniques that are more
      likely to produce accurate copies. For example, when a writing is
      produced in duplicate or multiplicate each of the copies is treated
      as admissible for purposes of the best evidence rule.

                                     *      *   *

      . . . As a result, Pa.R.E. 1003 should tend to eliminate purely
      technical objections and unnecessary delay. In those cases where
      the opposing party raises a genuine question as to authenticity or
      the fairness of using a duplicate, the trial court may require the
      production of the original under this rule.

Pa.R.E. 1003, Comment (case citations omitted).

      Here, the trial court found that the “minor little differences” about which

Appellant testified did not render the two copies of the prescription “totally

different[,]” as alleged by Appellant.   (Trial Court Opinion, 5/16/17, at 3);

(N.T. Trial, at 47). It explained that these inconsistencies

      are more readily explained by the pharmacist’s account of the
      simple movements of the original or the carbon copy[.] . . . [T]hey
      in no way posed any genuine questions as to the authenticity and
      accuracy of the copies, particularly since none of those variations
      had anything to do with the obvious and undisputed fact that there

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      was an attempt to replace the 21 with an 80. The defense did not
      dispute that the original prescription contained the 80 when it was
      presented to the pharmacist[,] but did not when it was written by
      the doctor and, presumably, given to [Appellant].

(Trial Ct. Op., at 3-4).

      We agree with the sound reasoning of the trial court that Appellant failed

to raise a genuine question about the authenticity of the photocopy to which

Ms. Dinsmore testified.    Appellant complained about minor inconsistencies

between the photocopy of the original and the carbon copy, which were

explained by the copying process.       Even more importantly, the alleged

discrepancies did not implicate the central issue of the case, whether the

prescription Appellant provided to the pharmacist was altered to include an

order for eighty oxycodone pills. See Pa.R.E. 1003. Therefore, we conclude

that the court did not abuse its discretion when it allowed the admission of

the photocopy into evidence.       See Giles, supra at *2; Pa.R.E. 1003.

Appellant’s issue lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/18




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