Case Information

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

Appellee

v.

TAKISHA MADISON,

Appellant No. WDA 2015 Appeal from the Judgment of Sentence Entered November 18, 2015

In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-SA-0002028-2015 BEFORE: BENDER, P.J.E., BOWES, J., and SOLANO, J. FILED FEBRUARY 3, 2017

MEMORANDUM BY BENDER, P.J.E.: Appellant, Takisha Madison, appeals from the judgment sentence of costs, with further penalty, imposed after she was convicted, following non -jury trial, one count of retail theft, 18 Pa.C.S. § 3929(a)(1). After careful review, we affirm. September of 2015, Magisterial District Judge convicted Appellant

of retail theft sentenced her to pay costs of prosecution. Appellant appealed her conviction the Allegheny County Court of Common Pleas. On November 18, 2015, de novo conducted, at which Appellant represented herself. trial court summarized the evidence presented at that trial, follows:

Andre Mitchell testified for the Commonwealth. Mr. Mitchell loss prevention officer Gabriel Brothers for 21 years. On July 2015, bag -check performed on all employees, including [Appellant,] since she was an employee of Gabriel Brothers. Merchandise from the store was found inside [Appellant's] bag. The merchandise [items] that [were] found in [her] bag did not tags on them. tags were The subsequently found [a] trash [can in the area store] where [Appellant] worked. [A] video showed [Appellant's] exiting the warehouse with the merchandise, walking into the fitting room, coming out and throwing the tags the trash [can]. Mr. Mitchell received the tags from the trash [can] and matched the tags to the merchandise found inside of [Appellant's] bag. Mr. Mitchell did see [Appellant] put the items into her bag.

Initially, [Appellant] told Mr. Mitchell she bought the merchandise from the store during the week before. Mr. Mitchell checked the prior week's purchases and the cameras, finding [Appellant's purported purchases] did not show up ... but the cameras showed [Appellant] with the merchandise. [Appellant] taken into [an] interview room, where she remained for about minutes. [] During minutes the interview room, Mr. Mitchell interviewed [Appellant] [she] admitted took the merchandise and she wrote a statement admitting it. [Appellant] made general objection ... admission [of statement], saying she was threatened and held for five hours, but the [c]ourt admitted statement [c]ourt testimony into evidence, since the found her unbelievable. The value of the merchandise $50.96.

Trial Court Opinion (TCO), 10/28/16, at 1-2 (unnumbered; citations record omitted).

Based on this evidence, the trial court convicted Appellant of retail theft sentenced her to pay costs of prosecution, without further penalty. Appellant filed timely, pro se notice of appeal. court then ordered her to file Pa.R.A.P. 1925(b) concise statement errors complained of appeal. While Appellant filed pro se motion an extension of time within which file Rule 1925(b) statement, the trial never ruled motion, not file any concise statement. On May 3, 2016, an attorney from Office of Public Defender of Allegheny County entered his appearance Appellant's behalf with this Court, and filed an application for relief, requesting that we remand for Appellant to file a Rule 1925(b) statement nunc pro tunc. This Court ultimately granted counsel's request remanded Appellant's case the trial court for her to file a nunc pro tunc Rule 1925(b) statement, for the court prepare responsive opinion. See Per Curiam Order, 5/23/16. Upon remand, Appellant filed her concise statement, the court issued an opinion October 2016.

Herein, Appellant raises three issues our review: 1. Is Appellant's [r]etail [t]heft conviction void ab initio due to absence of subject matter jurisdiction for any court Commonwealth of Pennsylvania?

2. Should Appellant receive new trial due to the violation of the Best Evidence Rule occurred when the prosecutor's sole witness permitted testify, over objection, observations made based on an after -the -fact viewing videotape rather than based on his own personal contemporaneous observations? Should receive new due to trial court's error eliciting from her, via its sua sponte questioning of her, fact previously been convicted of non -theft offense?

Appellant's Brief 3. first issue, she claims that the Court of Common Pleas of

Allegheny County (and/or any this Commonwealth) lacked subject matter jurisdiction over case because the specific location of crime never established. This argument meritless. Our Court stated:

The locus of crime is always in issue, for no jurisdiction of the offense unless committed in county where tried. Usually the question is specifically raised but, in such case, the conviction of defendant is conclusive the crime committed where laid in indictment, a verdict guilt includes such finding. Accordingly[,] even where the charge is murder[,] although some evidence of the locality of the crime should be adduced[,] ... if place of its commission not disputed, the defect cured by [a] verdict of guilty.

Commonwealth Tarsnane, A.2d 606, Super. 1952) (internal citations quotation marks omitted; emphasis added).

Here, the criminal complaint filed against Appellant stated she was accused "violating penal laws Commonwealth of Pennsylvania at Gabriel[] Brothers in Allegheny County or about July 1, 2015." See Private Criminal Complaint, 7/20/15, at (Docket Entry 1; emphasis added; unnecessary capitalization omitted). Appellant never disputed crime committed Allegheny County and, thus, the court's verdict necessarily found fact true. See Tarsnane, supra. Moreover, contrary argument appeal, Commonwealth present evidence regarding the location crime. For instance, Andre Mitchell's established Appellant's crime committed at the Gabriel Brothers store where he both worked. See N.T. Trial, 11/18/15, also entered into evidence the "Admission Statement" completed Appellant, which conceded she "took [three] dresses" from the Gabriel Brothers store "North Hills." See Admission Statement, 7/2/15. Based on this record, we conclude challenge the jurisdiction of the Court of Common Pleas of Allegheny County is meritless.

Appellant next argues the Commonwealth violated the 'Best Evidence Rule.d This Court has explained:

The "Best Evidence Rule," articulated the common law, very literally only pertained writings or other documentary evidence. As our Court has described common-law rule a prior case:

The "best evidence" rule limits the method of proving the terms a writing presentation of the original writing, where the terms instrument are material issue at hand, unless the original is shown be unavailable through fault of the proponent. The Pennsylvania courts use "best evidence" rule when contents of documentary evidence are issue. The best evidence rule is controlling only if terms a writing must be proved to make case or provide defense. Commonwealth v. Harris, 719 A.2d 1049, 1051 (Pa. Super. 1998). Initially, we note that: admission of evidence solely within the discretion of the court, trial court's evidentiary rulings will be reversed appeal only upon an abuse discretion. An abuse of

discretion will found based on mere error of judgment, but rather occurs where the reached conclusion overrides or misapplies the law, or where the judgment exercised manifestly unreasonable, or the result of partiality, prejudice, bias or ill -will. Woodard, A.3d 2015) (internal

citations quotation marks omitted).

However, the Pennsylvania Rules of Evidence have expanded scope common-law rule by applying it to other forms of evidence such as recordings photographs. The common- rule been incorporated into amplified by law Pennsylvania Rule of Evidence 1002[,] which provides: content of writing,

To prove recording, or photograph, the original writing, recording, or photograph is required, except otherwise provided in these rules, by other rules prescribed by the Supreme Court, or by statute.

Pa.R.E. 1002.[2]

Nevertheless Rule is applicable only in circumstances where the contents of the writing, recording or photograph are integral proving the central issue trial. See Pa.R.E. 1004(4) ("The original is required, other evidence of the contents of writing, recording or photograph is admissible if: writing, recording, or photograph not closely related a controlling issue.")[.] Consequently, if the Commonwealth is introducing writing, recording, or photograph trial, Rule requires original introduced only if Commonwealth must prove the contents of writing, recording or photograph establish the elements of its case. Commonwealth v. Townsend, 747 A.2d 376, 380 (Pa. Super. 2000)...; Harris, supra, 719 A.2d at 1052. Fisher, 764 A.2d 82, 87-88 Super. 2000) (some

internal citations omitted; emphasis added). An amended version Rule 1002 became effective March The

current rule (which applied at time trial) states: "An original writing, recording, or photograph required order prove its content unless these rules, other rules prescribed the Supreme Court, or statute provides otherwise." Pa.R.E. 1002.

In the present case, the Commonwealth argues, and we agree, that the videotape not required to prove the elements of retail theft. See Commonwealth's Brief at 10. That offense defined as:

(a) Offense defined. --A person guilty retail theft if he:

(1) takes possession of, carries away, transfers or causes carried away or transferred, any merchandise displayed, held, stored or offered sale by any store or other retail mercantile establishment with intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof;

18 Pa.C.S. § 3929(a)(1).

At Appellant's trial, the Commonwealth presented sufficient evidence - aside from Mitchell's about what he viewed on the videotape prove the elements of this offense. Specifically, Mitchell testified that he personally observed "merchandise from store" inside purse. N.T. Trial at Mitchell stated the items did tags them, when he checked the store's purchase records, he found entry for merchandise.3 Id. at 5, 8. He further testified he interviewed Appellant and she completed an Admission Statement. Id. 7. statement, Appellant confessed "took dresses [and] pairs of shoes [and] put them [her] bag an[d] walk[ed] towards the door where not argue at trial, and does not assert appeal, Best Evidence Rule also required the Commonwealth present the original purchase records from the store.

Security was checking bags." Admission Statement, 7/2/15. Because Mitchell's about his own observations, and Appellant's admitting taking the merchandise, were sufficient prove the elements of retail theft, the Commonwealth not required to present the cumulative evidence of the video recording.4 Consequently, the Best Evidence Rule not violated. Appellant's third final issue, claims erred

by questioning her such a manner elicited improper testimony about her prior convictions. Specifically, Appellant takes issue with the following exchange between the court:

[Appellant]: I'm being accused taking something was I worked at Gabe's I'm not going be already mine. labeled thief.

THE COURT: You don't any criminal record?

[Appellant]: Not for what I'm being accused of. THE COURT: You said you don't want be labeled thief. Do you have record being thief? We note contends "alleged confession would have

been subject exclusion via the corpus delecti rule." Appellant's Brief at As Appellant acknowledges, the corpus delecti rule "prohibits conviction of criminal defendant basis his statements alone and requires that the crime corroborated independent evidence." Id. 32 n.16 (quoting Crosby, A.2d 2002)). While Appellant essentially suggests there evidence corroborating her confession aside from the videotape, our discussion supra clearly defeats this claim. Again, Mitchell saw tag -less merchandise in bag, and purchase records of the store showed those items been bought. this independent evidence Because corroborated Appellant's confession, corpus delecti rule inapplicable.

[Appellant]: No, I do not, Your Honor.

THE COURT: Are you sure?

[Appellant]: Yes.

THE COURT: I can look it up.

[Appellant]: Yes, you can.

THE COURT: So, [y]ou never stole anything?

[Appellant]: That is correct. I am not a liar a thief.

N.T. Trial at 13-14 (emphasis added).

Preliminarily, the Commonwealth argues Appellant waived this claim by failing object the court's questioning. Appellant counters that,

[s]he a pro se defendant, asked, point-blank, the questions she was asked by man who was to decide whether guilty or not guilty of the crime charged. It is unreasonable expect a person situation object. As our [S]upreme [C]ourt noted, judge who poses question or makes comment during

trial to believe the question or is predisposed comment proper, lest it be spoken. Given that predisposition, the likelihood judge will be well - cautioned counsel's objection negligible. In that context, the rationale underlying the waiver doctrine, timely objection gives the opportunity to cure the error, becomes relatively empty one. Indeed, possibility exists counsel's objection will viewed as source of annoyance may well aggravate the situation.

Appellant's Brief (quoting Commonwealth Hammer, 494 A.2d (Pa. 1985), abrogated other grounds by v. Grant, 813 A.2d 726 2002)).

Given specific circumstances this case - where was representing herself, yet was also testifying own behalf when trial - court began questioning her - we decline to find that waived her challenge the court's questions, which elicited testimony about her prior conviction(s).

Moreover, we will accept Appellant's argument that the questions posed by the court were improper, that the elicited by the court inadmissible evidence concerning her prior, non-crimen falsi conviction(s). Nevertheless, we reject Appellant's claim the admission of this evidence constitutes reversible error. this regard, Appellant essentially contends because the court elicited the at -issue testimony, the court must have considered the evidence non-crimen falsi offense(s) finding guilty. See Appellant's Brief at 41-42. The responds argument "amounts nothing more than pure speculation...." Commonwealth's Brief 16. The Commonwealth continues:

Appellant's brief, court's original isolated response question regarding criminal record not even refer any specific criminal conduct, and by its follow-up questions, the merely clarifying she did not prior theft offense. Moreover, there absolutely indication record court, trier fact, considered anything other than the properly presented evidence establishing [A]ppellant guilty retail theft, i.e., loss prevention testimony he discovered untagged store officer's merchandise her purse that paid it.

Id. - Commonwealth's argument convinces us the court's error in

eliciting about Appellant's prior conviction (s) was harmless. As this Court explained: identified three scenarios where the erroneous

We have admission of evidence may constitute harmless error.

Harmless error exists where: the error did not (1) prejudice the defendant or the prejudice was de minimis; the erroneously admitted evidence was merely (2) cumulative of other untainted evidence which was substantially similar the erroneously admitted evidence; or (3) the properly admitted uncontradicted evidence guilt was so overwhelming the prejudicial effect of error so insignificant comparison error could not contributed the verdict. Fransen, 42 A.3d 1112-13 Super. 2012)

(internal citations omitted).

Here, we agree with the Commonwealth Appellant's brief mention prior criminal conduct caused only de minimis prejudice. Appellant identify any specific prior crime; instead, she only alluded having committed some other, non -theft offense(s) past. Moreover, the purpose of the court's questioning clearly ascertain whether Appellant had committed any prior theft offenses, and she steadfastly maintained she not. Additionally, had before it the properly admitted evidence of Appellant's admission took the merchandise, well as Mitchell's testimony that he found untagged merchandise bag, and there record of Appellant's purchasing those items. light of this strong evidence proving Appellant's guilt, we are convinced de minimis prejudice stemming from remark about prior criminal conviction(s) impact the court's verdict.

Judgment of sentence affirmed.

Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 2/3/2017 -