Com. v. Dent

• Decision Date: 25 November 2003
• Citation: 837 A.2d 571
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Monica Lynette DENT, Appellant.
• Court: Pennsylvania Superior Court

837 A.2d 571

COMMONWEALTH of Pennsylvania, Appellee, v. Monica Lynette DENT, Appellant.

Superior Court of Pennsylvania.

Submitted March 3, 2003.

Filed November 25, 2003.

Candace Cain, Public Defender, Pittsburgh, for appellant.

Michael W. Streily, Asst. Dist. Atty., Pittsburgh, for Com., appellee.

Before: TODD, GRACI, and KELLY, JJ.

KELLY, J.

¶ 1 Appellant, Monica Lynette Dent, asks us to determine whether the evidence admitted at trial was sufficient to sustain her conviction for retail theft. Appellant also claims the court erred in allowing the investigating police officer to testify at trial regarding statements made by Appellant's sister to the police officer during the course of the officer's investigation, where Appellant's sister did not testify at Appellant's trial. Specifically, Appellant contends her sister's statements were inadmissible hearsay and erroneously admitted under the guise of the police officer's "course of investigation." Finally, Appellant questions the trial court's decision to allow testimony concerning a surveillance videotape, where the videotape itself was not produced or available at trial. We hold that the totality of the evidence admitted at trial was sufficient to sustain Appellant's conviction for retail theft. Further, the police officer's testimony that he had obtained a photograph of Appellant based upon a conversation in which Appellant's sister identified Appellant by name as the person fleeing the scene of the crime constituted inadmissible hearsay. Nevertheless, Appellant is not entitled to a new trial on this basis. Finally, we reject Appellant's challenges to the admissibility of the testimony concerning the surveillance videotape that was "unavailable" at trial. Accordingly, we affirm Appellant's judgment of sentence.

¶ 2 The relevant facts and procedural history of this case are set forth in the trial court's opinion as follows:

[Appellant] was charged with one count of Retail Theft, 18 Pa.C.S. § 3929(a)(1) & (b)(1)(ii); and one count of Disorderly Conduct, 18 Pa.C.S. § 5503(a)(1), (2), (3) & (4).

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FACTS

James Conrad, manager of Pharmor at Robinson Town Center, testified that on July 17, 2001, [Appellant] tripped the electronic article surveillance alarm at the front of his store. Mr. Conrad approached [Appellant] and explained that the alarm went off, and asked her if there was anything she forgot to purchase. He then asked to look in her purse, and [Appellant] obliged. Two sets of fingernails were found, only one set was still in its original packaging. The alarm code sticker that set off the alarm was contained inside the packaging. At one point during the encounter, [Appellant] asked Mr. Conrad to page her sister from the store. However, he was reluctant to page her to the front of the store because he did not want to deal with two individuals at that time. Mr. Conrad then announced that he would have to call the police as this was a shoplifting incident, whereupon [Appellant] ran out the door and drove off in a white car.

After [Appellant] fled the store, Mr. Conrad reviewed the store's security camera images of [Appellant] and her sister. He also directed an employee to search the store, and the discarded wrapper for [one set of] the fake nails [was] found. The wrapper matched the nails found in [Appellant's] purse.

The Commonwealth next introduced the testimony of Officer Frank J. Marko of the Robinson Township Police Department. Officer Marko was called to the store at 1:12 p.m., and upon his arrival, he spoke with Mr. [Conrad]. Based on this conversation, he spoke with a [woman] whom he believed to be [Appellant's] sister. The woman identified the suspect who fled in the white car as [Appellant]. Officer Marko then obtained a photo of [Appellant] from B.C.I. He then reviewed the store security tape, and determined that the photo of [Appellant] matched the store tape, and was in fact the defendant present in the courtroom.

(Trial Court Opinion, dated November 7, 2002, at 1-2). To this rendition, we add the following facts established at trial. Mr. Conrad positively identified Appellant in court, based upon his confrontation with her at the store. He was unable to produce the videotape at trial because the store surveillance system was computerized and recycled itself automatically. Although still pictures could conceivably have been preserved, Mr. Conrad testified that the computer system had failed soon after the incident and the hard drive had to be completely replaced. He stated that Appellant had fled the store before he could check for a sales receipt for the nails.

¶ 3 The surveillance videotape was not offered as evidence. Initially, the trial court barred all testimony relating to the videotape. Following the prosecution's explanation, however, the court subsequently allowed some testimony concerning the videotape, over defense counsel's objection.

¶ 4 Following Appellant's bench trial on June 27-28, 2002, the court found her guilty of retail theft, graded as a second degree misdemeanor, and acquitted her of disorderly conduct. On July 17, 2002, the court sentenced Appellant to one year of probation, immediately effective¹ and concurrent with a sentence Appellant was already serving on an unrelated conviction, plus twenty-one dollars in restitution. This appeal followed.

¶ 5 On appeal, Appellant raises the following issues for our review:

DID THE COMMONWEALTH PRESENT SUFFICIENT EVIDENCE THAT [APPELLANT] POSSESSED THE ITEMS REPORTEDLY TAKEN FROM THE PHARMOR TO SUPPORT THE CONVICTION FOR RECEIPT OF STOLEN PROPERTY?

DID THE TRIAL COURT ERR BY ADMITTING TESTIMONY CONCERNING THE STATEMENTS OF [APPELLANT'S] SISTER AND NOT DETERMINING THEY WERE INADMISSIBLE HEARSAY?

DID THE TRIAL COURT ERR BY ADMITTING TESTIMONY CONCERNING THE PHARMOR SURVEILLANCE CAMERA VIDEOTAPES DESPITE LACK OF PRODUCTION AT TRIAL AND DURING DISCOVERY?

(Appellant's Brief at 4).

¶ 6 Initially, Appellant argues the evidence was insufficient to prove beyond a reasonable doubt that she had removed the fake nails from the Pharmor store with the intent to deprive the store of property. Appellant contends neither the store manager nor the surveillance camera caught her in the act of shoplifting. Appellant further submits it is impossible to prove that any items were actually taken from the Pharmor store on July 17, 2001, absent evidence of a formal inventory completed after the incident. Appellant maintains the Commonwealth failed to prove that the alarm system was not triggered accidentally, because the alarm is triggered accidentally on a daily basis and an employee simply may have failed to deactivate the alarm code sticker. Appellant concludes the evidence was insufficient to convict her of retail theft and she is entitled to an acquittal. We disagree.

¶ 7 When evaluating a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the Commonwealth as the verdict winner and accept as true all of its evidence, together with all reasonable inferences from that evidence, to determine whether the trier of fact could have found that each and every element of the crimes charged was established beyond a reasonable doubt. Commonwealth v. Hargrave, 745 A.2d 20, 22 (2000), appeal denied, 563 Pa. 683, 760 A.2d 851 (2000) (internal citations omitted). "This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt." Id. Our legislature has defined the offense of retail theft as follows:

§ 3929. Retail theft

(a) Offense defined.—A person is guilty of a retail theft if [s]he:

(1) 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 of the possession, use or benefit of such merchandise without paying the full retail value thereof[.]

18 Pa.C.S.A. § 3929(a)(1). Further, "[f]light does indicate consciousness of guilt, and a trial court may consider this as evidence, along with other proof, from which guilt may be inferred." Hargrave, supra at 23 (internal citations omitted).

¶ 8 Instantly, when we review the evidence adduced at trial in favor of the Commonwealth as the verdict winner, the evidence demonstrates that Appellant was present at the Pharmor store on July 17, 2001. She had two sets of fake nails concealed in her handbag when she attempted to exit the store. One of the nail sets still had the security device affixed to its package. Appellant produced no evidence of a completed purchase of the nails. See 18 Pa.C.S.A. § 3929(a)(1). Moreover, upon learning that the store manager was going to call the police, Appellant fled the store and quickly drove away in a white car. See Hargrave, supra. Thus the evidence admitted at trial was sufficient to prove each element of the offense of retail theft. See id.

¶ 9 Next, Appellant directs our attention to Officer Marko's testimony regarding the conversation he had with Appellant's sister. Appellant asserts her sister's comments were inadmissible hearsay, because they were out-of-court statements offered to prove the truth of the matter asserted. Specifically, Appellant objects to that portion of Officer Marko's testimony in which he revealed that Appellant's sister had identified Appellant by name as the person fleeing the scene on the day in question. Appellant maintains that Officer Marko's testimony regarding the identification statements made by Appellant's sister did not qualify as an exception to the hearsay rule, as her sister did not testify at trial. Appellant concludes it was reversible error to admit the prejudicial hearsay and she is entitled to a new trial on this basis. Although we agree that the identification was inadmissible hearsay, if offered...