Com. v. Baker, R.

J. S06040/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROBLETTE BAKER, :
:
Appellant : No. 1372 EDA 2014
Appeal from the Judgment of Sentence April 1, 2014
In the Court of Common Pleas of Bucks County
Criminal Division No(s).: CP-09-CR-0006848-2013
BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 4, 2015
Appellant, Roblette Baker, appeals from the judgment of sentence
entered in the Bucks County Court of Common Pleas following a jury trial
and her convictions for retail theft,1 conspiracy,2 corruption of minors,3 and
hindering apprehension or prosecution.4 Appellant contends the evidence
was insufficient to convict her of retail theft, conspiracy, and corruption of
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3929(a)(1).
2
18 Pa.C.S. § 903(a).
3
18 Pa.C.S. § 6301(a)(1).
4
18 Pa.C.S. § 5105(a)(5).
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minors. We affirm and grant the Commonwealth’s Motion to Correct and/or
Modify the Record.
The trial court summarized the facts of this case as follows:
On January 25, 2013, in response to a Richland Township
Police alert, Hilltown Township Police Officer John Gildea
effectuated a vehicle stop. The alert was related to a retail
theft that had just occurred at Walmart in Richland
Township, Bucks County, Pennsylvania. The vehicle, a
black SUV with chrome wheels, was occupied by Appellant
and three males,[5] one of whom was Appellant’s [minor
son]. Appellant provided Officer Gildea a fictitious name
for [him] and a fictitious date of birth (May 8, 1986) [ ].
[Her minor son’s] correct date of birth is October 14, 1996.
During the stop, officers observed, in plain view,
numerous electronic items including a large screen TV,
computers and video games. The Richland Township
Police verified with Walmart’s Asset Protection Officer that
the three males entered the Walmart Store and removed
the previously mentioned items without paying for them.
Video surveillance in the store recorded the above events
between 1:01 a.m. and 1:33 a.m. The total amount of
merchandise recovered had a retail value of two thousand
five hundred five dollars and twenty eight cents
($2,505.28).
After obtaining a court order for Appellant’s cell phone
records, it was determined that during the thirty two (32)
minutes that the males were in the store, one of them
communicated with Appellant three times. Specifically, the
cellphone records established that she was on the phone
with one of the co-defendants at 1:11 a.m., 1:14 a.m. and
1:23 a.m., the precise time of the retail theft.
The investigative evidence presented at trial also
established that . . . the four individuals, including
5
The three males in the vehicle with Appellant were her step-son,
Maurkeece Foreman, her minor son, and her brother, Rashi Baker. See
N.T., 3/20/14, at 5, 6, 14.
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Appellant, were at a Giant grocery store in Hilltown
Township, Bucks County, Pennsylvania. . . .
Trial Ct. Op., 7/16/14, at 2-3.
Appellant was sentenced to not less than time served, nor more than
twenty-three months’ incarceration for retail theft. She received no further
penalty for conspiracy. Appellant was sentenced to thirty-six months’
probation for corruption of minors to run concurrently with the sentence for
retail theft. This timely appeal followed. Appellant filed a court ordered
Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial
court filed a responsive opinion.
Appellant raises the following issues for our review:
[1]. Whether the evidence was sufficient to prove the
Appellant guilty of retail theft beyond a reasonable doubt
where the Commonwealth did not prove that Appellant had
any involvement in the theft of any items from the
Walmart?[6]
[2]. Whether the evidence was sufficient to prove the
Appellant guilty of conspiracy beyond a reasonable doubt
where the Commonwealth did not prove that Appellant had
any part in an agreement to engage in a theft from the
Walmart?
[3]. Whether the evidence was sufficient to prove the
Appellant guilty of corruption of minors beyond a
reasonable doubt where the Commonwealth did not prove
that Appellant had aided or encouraged [her minor son] to
commit a retail theft from Walmart?
6
We note that Appellant did not file post-sentence motions. However,
challenges to the sufficiency of the evidence can be raised for the first time
on appeal. See Pa.R.Crim.P. 606(A)(7).
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[4]. Whether the aforesaid issues raised on appeal are
waived because Appellant did not provide the notes of
testimony to the trial court?
Appellant’s Brief at 4.7
We will address Appellant’s last issue first. The instant certified record
did not include the trial transcript.8 However, Appellant included the notes
of testimony from the jury trial in the reproduced record. The
Commonwealth requests the record on appeal be corrected to include the
notes of testimony from the jury trial held on March 19 and 20, 2014. See
Commonwealth’ Mot. to Correct and/or Modify R., 12/10/14.
We have held that any document which is not part of the officially
certified record is deemed non-existent─a deficiency which cannot be
remedied merely by including copies of the missing documents in a brief or
in the reproduced record. Commonwealth v. Kennedy, 868 A.2d 582,
7
In her Rule 1925(b) statement, Appellant also raised the following issue:
“The Commonwealth failed to present sufficient evidence to establish that
Appellant was guilty beyond a reasonable doubt of 18 Pa.C.S. § 5105(a)(5)
as there was no evidence she did anything to hinder the prosecution or
conviction of [her minor son].” Appellant’s Statement of Matters Complained
of on Appeal, 5/21/14, at 2 (unpaginated). This issue was not raised in
Appellant’s statement of questions presented. Our Supreme Court has
stated that it “should disregard as abandoned issues not raised in list of
questions presented on appeal.” Eiser v. Brown & Williamson Tobacco
Corp., 938 A.2d 417, 429 (Pa. 2007). We consider this issue abandoned.
See id.8
We note the trial court suggested the instant appeal be dismissed based
upon Appellant’s failure to timely provide the transcript of her jury trial. See
Trial Ct. Op. at 1-2. The trial court addressed the issues on appeal
nonetheless. See id. at 3-8.
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593 (Pa. Super. 2005). Furthermore, “[w]here a review of an appellant’s
claim may not be made because of such a defect in the record, we may find
the issue waived.” Id. (citation omitted). More recently, however, our
Supreme Court held: “that where the accuracy of a pertinent document is
undisputed, the Court could consider that document if it was in the
Reproduced Record, even though it was not in the record that had been
transmitted to the Court.” Pa.R.A.P. 1921 note (citing Commonwealth v.
Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012)). In this case, because the trial
transcript is part of the reproduced record and its accuracy is undisputed, we
will grant the Commonwealth’s motion to correct the record and address
Appellant’s claims on their merits. See id.We will address issues one and two together because they are
interrelated. Appellant argues the evidence was insufficient to prove beyond
a reasonable doubt that she was guilty of retail theft because she lacked
“the requisite intent to deprive the merchant of any items.” Appellant’s Brief
at 16. Appellant remained in the vehicle in the parking lot while the males
went into the Walmart. Id. at 21. Appellant did not assist in unloading the
cart or putting the items into the vehicle. Id. She was unaware of the fact
that Foreman was stealing merchandise until she spoke with him on her cell
phone from the vehicle. Id.
Appellant argues the Commonwealth failed to present sufficient
evidence that she conspired to commit retail theft. Id. at 26. Appellant did
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not enter the Walmart. Id. at 28. There was no evidence that there was an
agreement to commit the crime. Id. She avers there was no circumstantial
evidence to establish an agreement. Id.
“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur
scope of review is plenary and our standard of review is de novo.”9
Commonwealth v. Gerald, 47 A.3d 858, 859 (Pa. Super. 2012).
[T]he critical inquiry on review of the sufficiency of the
evidence to support a criminal conviction . . . does not
require a court to ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable
doubt. Instead, it must determine simply whether the
evidence believed by the fact-finder was sufficient to
support the verdict. . . .
* * *
When reviewing the sufficiency of the evidence, an
appellate court must determine whether the evidence, and
all reasonable inferences deducible from that, viewed in
the light most favorable to the Commonwealth as verdict
winner, are sufficient to establish all of the elements of the
offense beyond a reasonable doubt.
Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)
(citations and quotation marks omitted).
9
Appellant avers the trial court erred in stating she “assisted in loading the
items into the vehicle’ after the theft.” Appellant’s Brief at 23. Given our
scope of review, this is of no moment. See Gerald, 47 A.3d at 859.
Moreover, as the trial court stated: “Because we do not have the notes of
testimony in the instant matter, we are forced to recall what happened at
the jury trial from our personal notes and memory.” Trial Ct. Op. at 2.
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“The Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the entire record must be
evaluated and all evidence actually received must be considered.”
Commonwealth v. Caban, 60 A.3d 120, 132 (Pa. Super. 2012), appeal
denied, 79 A.3d 1097 (Pa. 2013).
Section 3929 of the Crimes Code defines retail theft:
(a) Offense defined.─A person is guilty of a retail theft if
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. § 3929(a)(1).
Section 903 of the Crimes Code defines conspiracy:
(a) Definition of conspiracy.─A person is guilty of
conspiracy with another person or persons to commit a
crime if with the intent of promoting or facilitating its
commission he:
(1) agrees with such other person or persons that they
or one or more of them will engage in conduct which
constitutes such crime or an attempt or solicitation to
commit such crime; or
(2) agrees to aid such other person or persons in the
planning or commission of such crime or of an attempt
or solicitation to commit such crime.
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18 Pa.C.S. § 903(a)(1)-(2).10
[T]o sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant
(1) entered into an agreement to commit or aid in an
unlawful act with another person or persons, (2) with
a shared criminal intent and (3) an overt act was
done in furtherance of the conspiracy. This overt act
need not be committed by the defendant; it need
only be committed by a co-conspirator.
Commonwealth v. Murphy, 795 A.2d 1025, 1037-38
(Pa. Super. 2002) (citations and internal quotation marks
omitted).
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being,
that a particular criminal objective be accomplished.
Therefore, a conviction for conspiracy requires proof
of the existence of a shared criminal intent. An
explicit or formal agreement to commit crimes can
seldom, if ever, be proved and it need not be, for
proof of a criminal partnership is almost invariably
extracted from the circumstances that attend its
activities. Thus, a conspiracy may be inferred
where it is demonstrated that the relation, conduct,
or circumstances of the parties, and the overt acts of
the co-conspirators sufficiently prove the formation
of a criminal confederation.
10
We note the docket refers to the charge under subsection (c) which
provides:
(c) Conspiracy with multiple criminal objectives.─If a
person conspires to commit a number of crimes, he is
guilty of only one conspiracy so long as such multiple
crimes are the object of the same agreement or
continuous conspiratorial relationship.
18 Pa.C.S. § 903(c) (emphasis added).
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Commonwealth v. Johnson, 719 A.2d 778, 784-785 (Pa.
Super. 1998) (citations and internal quotation marks
omitted).
Commonwealth v. Knox, 50 A.3d 732, 740 (Pa. Super. 2012) (emphasis
added). Furthermore, “a defendant can be held accountable for the actions
of his or her co-conspirators although the defendant did not specifically
intend for the co-conspirators to perform these acts.”
Commonwealth v. Simpson, 754 A.2d 1264, 1274 (Pa. 2000) (emphasis
added).
The following testimony was adduced at trial. Foreman testified that
he was with Appellant, her minor son, and Rahshi Baker on the date of the
incidents between 12:00 a.m. and 3:00 a.m. N.T., 3/20/14, at 6, 14. He
stole some things from Walmart and “put the stuff in the car and went back
in and grabbed a couple other things . . . .” Id. at 7. Appellant remained in
the car. Id. at 10. Appellant contacted him on his cell phone and told him
she was cold in the car. Id. at 11. He “informed her that [he] was
stealing.” Id. He “came out to the car and put the stuff in the car.” Id. at
10-11. Appellant did not tell him to take the items back. Id. at 12. He
went back to Walmart to get Appellant’s son and “took some more stuff.”
Id. He brought the items back to the car and put them in the trunk. Id. at
13. Appellant was still in the car in the front seat. Id. Appellant’s minor
son and her brother came out and they all went to Giant. Id. at 14.
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After they arrived at Giant, they all got out of the vehicle and went
into the store separately. Id. at 15. He stole grocery items. Id. at 16. A
woman from Giant came out of the store. Id. Her supervisor or manager
came out and said he was calling the police. Id. They were about to leave
and Appellant came out to the car and sat in the front seat. Id. at 17. After
they left Giant, they “got pulled over by a bunch of cops.” Id. at 18.
Officer Gildea testified that the cell phone records show the calls
between Foreman and Appellant were at the time they were at the Walmart
from approximately 1:00 a.m. until 1:33 a.m. Id. at 55. The video from
Walmart shows they were at the Walmart at that time. Id.
Jennifer DeLuca, an employee at Giant Food Store on the date of the
incident, testified at trial. N.T., 3/19/14, at 27. She “saw a gentleman walk
out of the door with a full shopping cart worth of merchandise.” Id. at 29.
She stated:
When I got back to the register, I saw a young man run
across the front end of the store towards the produce
section and run back with something in his hand. Then
when the gentleman walked out with the shopping cart, I
ran after him, came back in to call my manager and the
police, and I saw three individuals walking out of the store
after him.
Id. at 30. She positively identified Appellant as one of the three individuals.
Id. She called the police and gave a description of the vehicle as a black
SUV. Id. at 31. The store was equipped with video surveillance which is
recording all the time. Id. at 32. She saw the video surveillance of the
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incident she described.11 Id. at 32. It accurately depicted what she
described. Id.
Richard Tucholski, a patrolman for the Hilltown Township Police
Department, testified. Id. at 39. He “was advised to conduct a traffic stop”
on a black SUV. Id. at 44. Following procedure when making a traffic stop
of a vehicle with tinted windows, he had the occupants of the vehicle put the
windows down. Id. He “noticed that there was [sic] three males in the
vehicle and a female. [He] also noticed behind the rear passengers there
was a 55-inch Visio─a box for a 55-inch Visio TV and numerous unbagged
grocery items.” Id. at 45. He identified Appellant as the female in the
vehicle. Id. at 46.
Zachary Herb, a patrolman with the Richland Township Police
Department, testified. Id. at 51. He was dispatched to Giant for a retail
theft. Id. at 53. He saw the video surveillance showing “several African
Americans going through the store selecting merchandise, putting it in the
cart, and then ultimately pushing that cart out of the store, entering their
SUV and leaving without paying─.” Id. at 55. He received a report of a
traffic stop and went to the location of the SUV. Id. at 57. He determined
that the individuals in the SUV were involved in the incident at Giant. Id. at
58. He identified Appellant as being involved in the incident. Id. at 59. He
11
The video was played for the jury. Id. at 33.
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saw unbagged groceries, “a 55-inch video [sic] TV, an HP computer, a
Gateway computer, and there were other items scattered all throughout the
back of the vehicle . . . .” Id. at 59-60.
Brad Antalosky, a Walmart employee, testified. Id. at 88. On the
date of the incident he was the asset protection associate. Id. Walmart has
a “closed circuit television system, which is connected to a DVR, digital video
recorder, which is running 24 hours a day, seven days a week . . . .” Id. at
91. There are 230 cameras in the store. Id. He watched the video from
the time the three males involved in this incident entered the Walmart
parking lot. Id. at 94. They walked into the door that was the direct route
to the electronics department. Id. at 98. He described the items that were
taken from the store based upon the video. Id. at 101. He was able to
identify the merchandise that Officer Gildea showed him by the shipping
labels which indicated that the items came from this Walmart. Id. at 102.
The total amount for the stolen items was determined to be $2,505. Id. at
105. All three males placed items in the shopping cart. Id. at 112.
Appellant’s arguments that the Commonwealth failed to prove that she
was guilty of retail theft or conspiracy to commit retail theft from Walmart
based upon the fact that she did not ”physically take, remove, or conceal
any Walmart merchandise” is unavailing. Viewing the evidence in the light
most favorable to the Commonwealth, a conspiracy can be inferred from the
overt acts of her co-conspirators. See Knox, 50 A.3d at 740. It is
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undisputed that items were taken from Walmart. Appellant had several
phone calls with Foreman and knew he was stealing items from Walmart.
Appellant was in the car with the stolen items and accompanied her co-
conspirators to the Giant Food Store. Appellant can be guilty of conspiracy
to commit retail theft even if she did not specifically intend for the co-
conspirators to steal the items from Walmart. See Simpson, 754 A.2d at
1274. Appellant need not commit an overt act. See Knox, 50 A.3d at 740.
We find Appellant is accountable for the actions of her co-conspirators,
namely, retail theft. See id.; Simpson, 754 A.2d at 1274. Viewing the
evidence in the light most favorable to the Commonwealth as verdict winner,
we find the evidence was sufficient to convict Appellant of conspiracy and
retail theft. See 18 Pa.C.S. §§ 903(c), 3929(a)(1); Ratsamy, 934 A.2d at
1237; Caban, 60 A.3d at 132; Knox, 50 A.3d at 740; Simpson, 754 A.2d
at 1274.
Lastly, Appellant contends the evidence was insufficient to prove she
was guilty of corruption of minors because the Commonwealth did not prove
that she aided or encouraged her minor son to commit retail theft. She
avers the statute requires “an act that corrupts or tends to corrupt a minor
into committing a crime.”12 Appellant’s Brief at 32 (emphasis supplied).
12
We note that Appellant’s only citation to legal authority is to the statute.
The Pennsylvania Supreme Court has stated:
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Appellant contends that because she “did not commit any actions that
corrupted or tended to corrupt [her minor son] the verdict must be
reversed.” Id.
Section 6301 of the Crimes Code defines corruption of minors:
(a) Offense defined.─
(1)(i) Except as provided in subparagraph (ii), whoever,
being of the age of 18 years and upwards, by any act
corrupts or tends to corrupt the morals of any minor
less than 18 years of age, or who aids, abets, entices
or encourages any such minor in the commission of any
crime, or who knowingly assists or encourages such
minor in violating his or her parole or any order of
court, commits a misdemeanor of the first degree.
18 Pa.C.S. § 6301(a)(1)(i) (emphases added).
Our Supreme Court has explained:
The Commonwealth need not prove that the minor’s
morals were actually corrupted. Rather, a conviction
for corrupting morals will be upheld where the
conduct of the defendant tends to corrupt the
minor’s morals. The statute speaks to conduct
toward a child in an unlimited variety of ways
which tends to produce or to encourage or to
continue conduct of the child which would amount to
delinquent conduct.
[W]here an appellate brief fails to provide any discussion
of a claim with citation to relevant authority or fails to
develop the issue in any other meaningful fashion capable
of review, that claim is waived. It is not the obligation of
this Court, even in a capital case, to formulate Appellant’s
arguments for him.
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations
omitted). Because our review is not hampered, we decline to find the issue
waived.
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Commonwealth v. Mumma, [ ] 414 A.2d 1026, 1030
([Pa.] 1980) (citations and quotation marks omitted)
(emphasis added).
Similarly, this Court has explained that:
The statute requires that the knowing, intentional
acts of the perpetrator tend to have the effect of
corrupting the morals of a minor.
This court has visited the question of what
constitutes “corruption” of a minor’s morals before.
In Commonwealth v. Decker, 698 A.2d 99, 101
(Pa. Super. 1997) [ ], we held that actions that
tended to corrupt the morals of a minor were those
that “would offend the common sense of the
community and the sense of decency, propriety and
morality which most people entertain.”
Commonwealth v. DeWalt, 752 A.2d 915, 918 (Pa.
Super. 2000) (emphasis in original, one citation omitted).
* * *
Corruption of a minor can involve conduct towards a
child in an unlimited number of ways. The purpose
of such statutes is basically protective in nature.
These statutes are designed to cover a broad range
of conduct in order to safeguard the welfare and
security of our children. Because of the diverse
types of conduct that must be proscribed, such
statutes must be drawn broadly. It would be
impossible to enumerate every particular act against
which our children need be protected.
Commonwealth v. Slocum, 86 A.3d 272, 277-78 (Pa. Super. 2014) (some
citations and footnote omitted) (emphasis supplied).
In order to find sufficient evidence of corruption of minors, an overt
act is not required. See 18 Pa.C.S. § 6301(a)(1)(i). It is sufficient if the
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“conduct of the defendant tends to corrupt the minor's morals.” See
Slocum, 86 A.3d at 277. Appellant knew that her minor son was in
Walmart while items were being stolen and accompanied him in Giant.
Appellant’s actions “would offend the common sense of the community and
the sense of decency, propriety and morality which most people entertain.”
See id. Viewing the evidence in the light most favorable to the
Commonwealth, we find the evidence sufficient for the jury to convict
Appellant of corruption of minors. See 18 Pa.C.S. § 6301(a)(1)(i);
Ratsamy, 934 A.2d at 1237; Slocum, 86 A.3d at 277-78.
Judgment of sentence affirmed. Commonwealth’s Mot. to Correct
and/or Modify R. granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/4/2015
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