Commonwealth v. McKellick

¶1DISSENTING OPINION BY

¶2The trial court found Appellant Michael Timothy McKellick (“McKellick”) guilty of Driving Under the Influence — Highest Rate of Alcohol, 75 Pa.C.S.A. § 3802(c) (“DUI”), even though no witness at trial testified that McKellick was driving while intoxicated on the night of his arrest. Before the time of trial, Trooper Joshua D. Miller (the arresting officer) tragically died in the line of duty in another case. Trooper Miller was the only person with personal knowledge of the events leading to McKellick’s arrest (other than McKellick himself), and thus the Commonwealth could not produce a witness at tidal to establish the elements of proof required for a DUI conviction. Instead, the Commonwealth offered a video recording of a traffic stop taken by a dashboard-mounted video camera. In Trooper Miller’s absence, however, no witness could provide the basic foundational testimony required to authenticate the videodisk to permit its admission into evidence, including that it fairly and accurately depicts the events occurring during the traffic stop.1 With *993all due respect to the learned Majority, it affirmed the trial court’s decision to admit the videodisk principally by ignoring long-established evidentiary rules regarding the authentication of video evidence. Because the videodisk was not properly authenticated in accordance with Pennsylvania law, I respectfully dissent.

¶3The use of motion pictures and video recordings in Pennsylvania courtrooms is by no means a recent phenomenon. This Court affirmed the use of a “talking motion picture, or movietone” of a confession, upon proof of proper authentication, as far back as 1930. Commonwealth v. Roller, 100 Pa.Super. 125, 1930 WL 3698 at *1 (1930). Video images may serve as different types of evidence, depending upon their relationship to the case. For example, a video of a crime in progress, recorded by an eyewitness or a surveillance camera, may be admitted as substantive evidence of a defendant’s guilt upon proper authentication. See, e.g., Commonwealth v. Wyatt, 455 Pa.Super. 404, 688 A.2d 710, 714 (1997), appeal denied, 548 Pa. 681, 699 A.2d 735 (1997); Korin v. Department of Corrections, State Correctional Inst., 137 Pa.Cmwlth. 94, 585 A.2d 559, 561 (1991), appeal denied, 528 Pa. 615, 596 A.2d 160 (1991). On the other hand, a video re-creation of a crime, e.g., a computer animation, if sufficiently faithful to other admitted evidence, may be illustrative of events that occurred at the scene and thus be admitted to assist jurors in understanding what happened. Bergman & Hollander, Wharton’s Criminal Evidence § 16.23 (15th ed.1999). Video recordings have also been admitted into evidence, upon proper authentication, for the limited purpose of corroborating a police officer’s description regarding events taking place at the scene depicted on the video. See, e.g., Commonwealth v. Weaver, 768 A.2d 331, 332 (Pa.Super.), appeal denied, 567 Pa. 741, 788 A.2d 376 (2001).

¶4The Majority contends that the videodisk at issue here is “demonstrative evidence.” Our Supreme Court has defined demonstrative evidence as evidence that is “tendered for the purpose of rendering other evidence more comprehensible for the trier of fact.” Commonwealth v. Serge, 586 Pa. 671, 682, 896 A.2d 1170, 1177 (2006) (quoting Broun, Kenneth S., 2 McCormick On Evidence § 212 (5th ed.1999)), cert. denied, 549 U.S. 920, 127 S.Ct. 275, 166 L.Ed.2d 211 (2006). Demonstrative evidence is thus illustrative in nature, as it assists the trier of fact in better understanding other substantive evidence admitted at trial. For this reason, the videodisk at issue in this case cannot be demonstrative evidence — it cannot “render other evidence more comprehensible” because there is no other evidence to establish what occurred in connection with the traffic stop. If anything, the videodisk must be viewed as purported substantive evidence of McKellick’s guilt.

¶5Whether improperly described as demonstrative evidence, or as substantive evidence of McKellick’s guilt, the videodisk here was not admissible at trial absent proper authentication under Pennsylvania law. See Commonwealth v. Impellizzeri, *994443 Pa.Super. 296, 661 A.2d 422, 428 (1995) (“[L]ike a photograph, a videotape must be authenticated.”)» appeal denied, 543 Pa. 725, 673 A.2d 332 (1996). The starting point for authentication is Rule 901(a), which provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Pa.R.E. 901(a). Rule 901(b)(1) provides that one method of satisfying this requirement is through the testimony of a witness with knowledge that “a matter is what it is claimed to be.” Pa.R.E. 901(b)(1).2

¶6What proof is necessary to satisfy the requirement under Rule 901(a) that the matter in question “is what its proponent claims” depends upon the type of evidence at issue. For example, a signed document may be authenticated by, inter alia, testimony by the signer or someone who saw the author sign it, admission of authenticity by an adverse party, or other proof that the signature is in the author’s handwriting. See, e.g., Commonwealth v. Brooks, 352 Pa.Super. 394, 508 A.2d 316, 318 (1986). Conversely, the authentication of real evidence (i.e., items that played an actual and direct part in the events at issue, like a murder weapon) typically requires proof to support a finding that the item in question was likely to have been directly involved in the incident or transaction before the court. See, e.g., Commonwealth v. Edwards, 588 Pa. 151, 182, 903 A.2d 1139, 1156-57 (2006) (“[T]he Commonwealth need only lay a foundation that would justify an inference by the finder of *995fact of the likelihood that the weapon was used in the commission of the crime.”), cert. denied, 549 U.S. 1344, 127 S.Ct. 2030, 167 L.Ed.2d 772 (2007).

¶7To authenticate photographs, motion pictures, and video recordings, Pennsylvania courts have always and without exception held that the photograph or recording must be authenticated through testimony from a witness with personal knowledge who can testify that it “fairly and accurately represents that which it purports to depict.” See, e.g., Serge, 586 Pa. at 682, 896 A.2d at 1177. In Kopytin v. Aschinger, 947 A.2d 739 (Pa.Super.2008), appeal denied, 600 Pa. 740, 964 A.2d 2 (2009), for example, this Court held that “[w]here, e.g., motion pictures are concerned, the authentication must be sufficient to support a finding that” the exhibit “fairly and accurately represents that which it purports to depict.” Id. at 747 (quoting Binder, David F., Binder On Pennsylvania Evidence § 9.01)(4th ed.2005); see also Taylor v. Borough of Modena, 370 Pa. 100, 102, 87 A.2d 195, 196 (1952) (authentication of photograph requires testimony that it “fairly and truthfully represents the object or place reproduced”); Roller, 1930 WL 3698 at *2 (movietone authenticated by “abundant evidence” that it “was a true portrayal of the actions and words of the defendant at the time it was taken”); Commonwealth v. Schwartz, 419 Pa.Super. 251, 615 A.2d 350, 357 (1992) (photographs must “accurately and fairly depict what they purport to show”), appeal denied,, 535 Pa. 617, 629 A.2d 1379 (1993); cf. Commonwealth v. Rosarius, 771 A.2d 29, 32 (Pa.Super.2001) (photographs by defendant of officer’s location not admitted into evidence where officer testified that they did not accurately depict the area where he was located).

¶8Authentication testimony may be provided by the person who took the photograph or video, or by some other witness “with sufficient knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time” of recording. Nyce v. Muffley, 384 Pa. 107, 111, 119 A.2d 530, 532 (1956); see also Impellizzeri, 661 A.2d at 428 (“[A] witness familiar with the subject matter can testify that the tape was an accurate and fair depiction of the events sought to be shown.”) (citing Commonwealth v. Hindi, 429 Pa.Super. 169, 631 A.2d 1341, 1346 (1993)); Aiello v. Southeastern Pennsylvania Transp. Authority, 687 A.2d 399, 403 (Pa.Cmwlth.1997) (same), appeal denied, 554 Pa. 244, 720 A.2d 1050 (1998).

¶9Pennsylvania appellate courts have not hesitated to reverse trial court decisions when sufficient authentication evidence is lacking. In our recent decision in Kopy-tin, for example, this Court reversed a trial court’s decision to admit a videotape into evidence in the absence of any authenticating testimony that it constituted a fair and accurate representation of the events portrayed on the tape. In Kopytin, the appellant alleged that he sustained multiple severe painful injuries that interfered with his ability to work as a result of a vehicular collision caused by the appellee. The appellee retained the services of an investigative agency, which conducted surveillance on the appellant and shot videotape of him performing activities calling into question the severity of the appellant’s injuries. On appeal, the appellant objected to the trial court’s decision to admit the videotape into evidence because it was not properly authenticated. Specifically, the appellant contended that the two employees who had shot the video had left the agency and thus had not testified. The appellant further argued that the principal of the agency could not authenticate the videotape because he “was neither present at the taping nor had personal knowledge of the circumstances surrounding it,” and *996he was thus “unable to state that the tape was in fact a fair and accurate depiction of appellant at that time.” Kopytin, 947 A.2d at 747. This Court agreed, concluding that the principal’s testimony was insufficient authentication evidence “as it provides no demonstration of knowledge that ‘a matter is what it is claimed to be.’ ” Id.(quoting Pa.R.E. 901(b)(1)).

¶10In reaching our decision in Kopytin, we found illuminating the Commonwealth Court’s reasoning in the case of McMenamin v. Tartaglione, 139 Pa.Cmwlth. 269, 590 A.2d 802 (1991), affirmed, 527 Pa. 286, 590 A.2d 753 (1991). In McMenamin, an elector filed a complaint in equity seeking a declaration that Ronald D. Castille3 was ineligible to run for the office of mayor of Philadelphia. At trial, the trial court refused to admit into evidence a videotape of comments made by Castille at a press conference on the grounds that, inter alia, the witness called to authenticate the videotape had not actually seen the events recorded on the tape. The Commonwealth Court affirmed the ruling excluding the videotape, agreeing with the trial court that “the witness had no ability to attest that the tape portrayed events accurately.” Id. at 811.

¶11Thé lack of evidence to authenticate the videodisk is not a mere technicality. Pennsylvania appellate courts, including our Supreme Court, have long stressed the potential of captured visual images (including both photographs and video recordings) to mislead, rather than assist, a trier of fact:

A photograph is merely pictorial testimony. While it is properly assumed that the lens of a camera will not lie, the reliability of the resulting product, insofar as evidence in a factual controversy is concerned, depends on many factors which have little or nothing to do with the fidelity of the mechanical process which transfers a physical object from tangible reality to an intangible image on paper. Many questions must be answered before a photograph may be accepted as incontrovertible. When was the picture taken? Had the photographed objects been moved since the happening which is the subject of dispute? Who took the picture? At what angle was the shot made? It is common knowledge that a given condition may be so photographed from different angles as to produce conflicting views of the situation under the camera’s lens.

¶12Heimbach v. Peltz, 384 Pa. 308, 311-12, 121 A.2d 114, 116 (1956). In this regard, our Supreme- Court emphasized the need for testimony from a witness regarding the accuracy of the photograph:

We are to remember, then, that a document purporting to be a map, picture, or diagram, is, for evidential purposes simply nothing, except so far as it has a human being’s credit to support it. It is mere waste paper, a testimonial nonentity. It speaks to us no more than a stick or a stone. It can of itself tell us no more as to the existence of the thing portrayed upon it than can a tree or an ox. We must somehow put a testimonial human being behind it (as it were) before it can be treated as having any testimonial standing in court. It is somebody’s testimony, or it is nothing.

¶13Id.(quoting III Wigmore On Evidence § 790). In a subsequent case, Commonwealth v. Newman, 323 Pa.Super. 394, 470 A.2d 976 (1984), this Court recognized that *997the same reliability issues exist for video recordings:

A videotape recording, although capable of a more sequential reproduction than a still photograph, is nevertheless subject to the same uncertainties that render photographic evidence fallible.

¶14Id.at 979 (citing and quoting Heimbach). Among other things, testimony that a proffered video recording fairly and accurately depicts what it purports to depict provides assurance that the video has not been altered or changed in any way, and precludes the probative danger that the exhibit may mislead the trier of fact due to, e.g., variations of scale, distortions of perspective, inadequate lighting, or failure to capture the entirety of the events depicted. Broun, Kenneth S., 2 McCormick On Evidence § 214 (6th ed.2006).

¶15At trial in the case stib jndice, no witness testified that the videodisk admitted into evidence as Commonwealth Exhibit #2 constituted a fair and accurate depiction of the events occurring at the traffic stop in question. The two witnesses the Commonwealth called to testify, Corporal Riehl and Corporal Hothouse, were not at the scene of the traffic stop and thus had no personal knowledge of events on the night in question. Corporal Riehl could testify only that he followed departmental procedures in retrieving a videotape from Trooper Miller’s vehicle and in transferring a portion of it to the videodisk marked as Commonwealth Exhibit # 2. N.T., 1/29/10, at 6-12. Corporal Riehl’s involvement in processing the video recording for display in the courtroom did not qualify him to authenticate the videodisk in this case, just as the person developing film at the Ritz Camera store cannot authenticate the accuracy of images on photographs picked up by customers at the store.

¶16Corporal Hothouse likewise had no personal knowledge of the traffic stop or the events that occurred in connection therewith. Instead, his testimony was of necessity limited only to his observations gleaned from watching the videodisk. The Majority’s contention that a witness may authenticate a videodisk merely by watching it and then offering that it “is what it purports to be” is at best tautological and circular, as such testimony amounts to nothing more than “the video appears to show what it appears to show” — which is worthless for authentication purposes. Corporal Hothouse could not testify that the videodisk fairly and accurately depicts the events occurring during Trooper Miller’s traffic stop, since he was not there and thus had no personal knowledge of those events. After viewing the videodisk, the most to which Corporal Hothouse could testify was that it appeared to be a video recording of a traffic stop. He could not testify that it accurately depicted the traffic stop of McKel-lick because he was not there and did not witness it. To the contrary, Corporal Hothouse admitted that he did not even know the exact location where the traffic stop occurred — offering only that it was “on 209 up in the Marshall Creek area.” N.T., 1/29/10, at 38. He further acknowledged that he did not know whether the sobriety tests were administered on level ground or on a slanted grade. Id. (“some [portions of berm in that area] are slanted and some are level”).

¶17In conclusion, I recognize that Trooper Miller’s tragic death in the line of duty may have resulted in an apparent benefit to McKelliek. As is often said, however, “bad facts make bad law,” and in my view the Majority’s decision here to ignore fundamental principles of Pennsylvania evidence law to achieve a result that compensates for Trooper Miller’s absence will most certainly have unintended conse*998quences. Nothing in the Majority’s Opinion today limits the admission of unauthenticated video recordings to those situations in which the arresting officer is unavailable to testify, and thus in future criminal cases where video exists, there will be no requirement that arresting officers appear, testify, and/or respond to cross-examination. Moreover, the requirement of authentication is not limited to criminal cases, and thus the Majority’s holding— namely, that a video recording may be admitted into evidence without any testimony that it fairly and accurately depicts the events at issue — will have wide application in many areas, including civil cases and administrative proceedings.

¶18For the foregoing reasons, I believe that the Majority Opinion is a radical departure from established, tested and correct principles of the law of evidence in this Commonwealth. Thus, I dissent.