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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

COMMONWEALTH OF PENNSYLVANIA, 1 IN THE SUPERIOR COURT OF 

PENNSYLVANIA 

v. 

TAKISHA MADISON, 

Appellee 

Appellant No. 1956 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. 

MEMORANDUM BY BENDER, P.J.E.: FILED FEBRUARY 3, 2017 

Appellant, Takisha Madison, appeals from the judgment of sentence of 

court costs, with no further penalty, imposed after she was convicted, 

following a non -jury trial, of one count of retail theft, 18 Pa.C.S. § 

3929(a)(1). After careful review, we affirm. 

In September of 2015, a Magisterial District Judge convicted Appellant 

of retail theft and sentenced her to pay the costs of prosecution. Appellant 

appealed her conviction to the Allegheny County Court of Common Pleas. 

On November 18, 2015, a trial de novo was conducted, at which Appellant 

represented herself. The trial court summarized the evidence presented at 

that trial, as follows: 

Andre Mitchell testified for the Commonwealth. Mr. 

Mitchell was a loss prevention officer for Gabriel Brothers for 21 

years. On July 1, 2015, a bag -check was performed on all the 

employees, including [Appellant,] since she was an employee of 
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Gabriel Brothers. Merchandise from the store was found inside 

[Appellant's] bag. The merchandise [items] that [were] found in 

[her] bag did not have tags on them. The tags were 

subsequently found in [a] trash [can in the area of the 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 in the trash 

[can]. Mr. Mitchell received the tags from the trash [can] and 

matched the tags to the merchandise that was found inside of 

[Appellant's] bag. Mr. Mitchell did not see [Appellant] put the 

items into her bag. 

Initially, [Appellant] told Mr. Mitchell that she had bought 

the merchandise from the store during the week before. Mr. 

Mitchell checked the prior week's purchases and the cameras, 

finding that [Appellant's purported purchases] did not show up ... but the cameras showed [Appellant] with the merchandise. 

[Appellant] was taken into [an] interview room, where she 

remained for about 45 minutes. [] During the 45 minutes in the 

interview room, Mr. Mitchell interviewed [Appellant] and [she] 

admitted that she took the merchandise and she wrote a 

statement admitting it. [Appellant] made a general objection to 

the ... admission [of the statement], saying she was threatened 

and held for five hours, but the [c]ourt admitted the statement 

into evidence, since the [c]ourt found her testimony 

unbelievable. The value of the merchandise was $50.96. 

Trial Court Opinion (TCO), 10/28/16, at 1-2 (unnumbered; citations to the 

record omitted). 

Based on this evidence, the trial court convicted Appellant of retail 

theft and sentenced her to pay the costs of prosecution, without further 

penalty. Appellant filed a timely, pro se notice of appeal. The court then 

ordered her to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. While Appellant filed a pro se motion for an 

extension of time within which to file her Rule 1925(b) statement, the trial 

court never ruled on that motion, and Appellant did not file any concise 

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statement. On May 3, 2016, an attorney from the Office of the Public 

Defender of Allegheny County entered his appearance on 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 and remanded Appellant's case to the 

trial court for her to file a nunc pro tunc Rule 1925(b) statement, and for the 

court to prepare a responsive opinion. See Per Curiam Order, 5/23/16. 

Upon remand, Appellant filed her concise statement, and the court issued an 

opinion on October 28, 2016. 

Herein, Appellant raises three issues for our review: 

1. Is Appellant's [r]etail [t]heft conviction void ab initio due to 

the absence of subject matter jurisdiction for any court in the 

Commonwealth of Pennsylvania? 

2. Should Appellant receive a new trial due to the violation of the 

Best Evidence Rule that occurred when the prosecutor's sole 

witness was permitted to testify, over objection, to observations 

made based on an after -the -fact viewing of a videotape rather 

than based on his own personal contemporaneous observations? 

3. Should Appellant receive a new trial due to the trial court's 

error in eliciting from her, via its sua sponte questioning of her, 

of the fact that she had previously been convicted of a non -theft 

offense? 

Appellant's Brief at 3. 

In Appellant's first issue, she claims that the Court of Common Pleas of 

Allegheny County (and/or any court in this Commonwealth) lacked subject 

matter jurisdiction over her case because the specific location of her crime 

was never established. This argument is meritless. Our Court has stated: 

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The locus of a crime is always in issue, for a court has no 

jurisdiction of the offense unless committed in the county where 

tried. Usually the question is not specifically raised but, in such 

case, the conviction of a defendant is conclusive that the 

crime was committed where laid in the indictment, for a 

verdict of guilt includes such finding. Accordingly[,] even 

where the charge is murder[,] although some evidence of the 

locality of the crime should be adduced[,] ... if the place of its 

commission is not disputed, the defect is cured by [a] 

verdict of guilty. 

Commonwealth v. Tarsnane, 85 A.2d 606, 607 (Pa. Super. 1952) 

(internal citations and quotation marks omitted; emphasis added). 

Here, the criminal complaint filed against Appellant stated that she 

was accused of "violating the penal laws of the Commonwealth of 

Pennsylvania at Gabriel[] Brothers in Allegheny County on or about July 1, 

2015." See Private Criminal Complaint, 7/20/15, at 1 (Docket Entry 1; 

emphasis added; unnecessary capitalization omitted). Appellant never 

disputed that her crime was committed in Allegheny County and, thus, the 

court's verdict necessarily found that fact to be true. See Tarsnane, 

supra. Moreover, contrary to Appellant's argument on appeal, the 

Commonwealth did present evidence regarding the location of her crime. 

For instance, Andre Mitchell's testimony established that Appellant's crime 

was committed at the Gabriel Brothers store where he and Appellant both 

worked. See N.T. Trial, 11/18/15, at 3, 5. The Commonwealth also entered 

into evidence the "Admission Statement" completed by Appellant, in which 

she conceded that she "took [three] dresses" from the Gabriel Brothers store 

in the "North Hills." See Admission Statement, 7/2/15. Based on this 

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record, we conclude that Appellant's challenge to the jurisdiction of the 

Court of Common Pleas of Allegheny County is meritless. 

Appellant next argues that the Commonwealth violated the 'Best 

Evidence Rule.d This Court has explained: 

The "Best Evidence Rule," as articulated by the common law, 

very literally only pertained to writings or other documentary 

evidence. As our Court has described the common-law rule in a 

prior case: 

The "best evidence" rule limits the method of proving the 

terms of a writing to the presentation of the original 

writing, where the terms of the instrument are material to 

the issue at hand, unless the original is shown to be 

unavailable through no fault of the proponent. The 

Pennsylvania courts use the "best evidence" rule when the 

contents of documentary evidence are at issue. The best 

evidence rule is controlling only if the terms of a writing 

must be proved to make a case or provide a defense. 

Commonwealth v. Harris, 719 A.2d 1049, 1051 (Pa. Super. 

1998). 

1 Initially, we note that: 

The admission of evidence is solely within the discretion of the 

trial court, and a trial court's evidentiary rulings will be reversed 

on appeal only upon an abuse of that discretion. An abuse of 

discretion will not be found based on a mere error of judgment, 

but rather occurs where the court has reached a conclusion that 

overrides or misapplies the law, or where the judgment 

exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias or ill -will. 

Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (internal 

citations and quotation marks omitted). 

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However, the Pennsylvania Rules of Evidence have expanded 

the scope of the common-law rule by applying it to other forms 

of evidence such as recordings and photographs. The commonlaw rule has been incorporated into and amplified by 

Pennsylvania Rule of Evidence 1002[,] which provides: 

To prove the content of a writing, recording, or 

photograph, the original writing, recording, or photograph 

is required, except as otherwise provided in these rules, by 

other rules prescribed by the Supreme Court, or by 

statute. 

Pa.R.E. 1002.[2] 

Nevertheless Rule 1002 is applicable only in circumstances 

where the contents of the writing, recording or photograph are 

integral to proving the central issue in a trial. See Pa.R.E. 

1004(4) ("The original is not required, and other evidence of the 

contents of a writing, recording or photograph is admissible if: 

The writing, recording, or photograph is not closely related to a 

controlling issue.")[.] Consequently, if the Commonwealth is 

introducing a writing, recording, or photograph at trial, Rule 

1002 requires that the original be introduced only if the 

Commonwealth must prove the contents of the writing, 

recording or photograph to establish the elements of its 

case. Commonwealth v. Townsend, 747 A.2d 376, 380 (Pa. 

Super. 2000)...; Harris, supra, 719 A.2d at 1052. 

Commonwealth v. Fisher, 764 A.2d 82, 87-88 (Pa. Super. 2000) (some 

internal citations omitted; emphasis added). 

2 An amended version of Rule 1002 became effective in March of 2013. The 

current rule (which applied at the time of Appellant's trial) states: "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. 

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In the present case, the Commonwealth argues, and we agree, that 

the videotape was not required to prove the elements of retail theft. See 

Commonwealth's Brief at 10. That offense is defined as: 

(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). 

At Appellant's trial, the Commonwealth presented sufficient evidence - aside from Mitchell's testimony about what he viewed on the videotape - to 

prove the elements of this offense. Specifically, Mitchell testified that he 

personally observed "merchandise from the store" inside Appellant's purse. 

N.T. Trial at 5. Mitchell stated that the items did not have tags on them, 

and when he checked the store's purchase records, he found no entry for 

that merchandise.3 Id. at 5, 8. He further testified that he interviewed 

Appellant and she completed an Admission Statement. Id. at 7. In that 

statement, Appellant confessed that she "took 3 dresses [and] 2 pairs of 

shoes [and] put them in [her] bag an[d] walk[ed] towards the door where 

3 Appellant did not argue at trial, and does not assert on appeal, that the 

Best Evidence Rule also required that the Commonwealth present the 

original purchase records from the store. 

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Security was checking bags." Admission Statement, 7/2/15. Because 

Mitchell's testimony about his own observations, and Appellant's admitting to 

taking the merchandise, were sufficient to prove the elements of retail theft, 

the Commonwealth was not required to present the cumulative evidence of 

the video recording.4 Consequently, the Best Evidence Rule was not 

violated. 

In Appellant's third and final issue, she claims that the trial court erred 

by questioning her in such a manner that elicited improper testimony about 

her prior convictions. Specifically, Appellant takes issue with the following 

exchange between her and the court: 

[Appellant]: I'm being accused of taking something that was 

already mine. I worked at Gabe's and I'm not going to be 

labeled a thief. 

THE COURT: You don't have any criminal record? 

[Appellant]: Not for what I'm being accused of. 

THE COURT: You said you don't want to be labeled a thief. Do 

you have a record of being a thief? 

4 We note that Appellant contends that her "alleged confession would have 

been subject to exclusion via the corpus delecti rule." Appellant's Brief at 

32. As Appellant acknowledges, the corpus delecti rule "prohibits the 

conviction of a criminal defendant on the basis of his statements alone and 

requires that the crime be corroborated by independent evidence." Id. at 32 

n.16 (quoting Commonwealth v. Crosby, 791 A.2d 366, 371 (Pa. 2002)). 

While Appellant essentially suggests that there was no evidence 

corroborating her confession aside from the videotape, our discussion supra 

clearly defeats this claim. Again, Mitchell saw tag -less merchandise in 

Appellant's bag, and the purchase records of the store showed that those 

items had not been bought. Because this independent evidence 

corroborated Appellant's confession, the corpus delecti rule is inapplicable. 

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[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 and a thief. 

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

Preliminarily, the Commonwealth argues that Appellant waived this 

claim by failing to object to the court's questioning. Appellant counters that, 

[s]he was a pro se defendant, and was asked, point-blank, the 

questions that she was asked by the man who was to decide 

whether she was guilty or not guilty of the crime charged. It is 

unreasonable to expect a person in that situation to object. As 

our [S]upreme [C]ourt has noted, 

a judge who poses a question or makes a comment during 

trial is predisposed to believe that the question or 

comment is proper, lest it not be spoken. Given that 

predisposition, the likelihood that the judge will be well - cautioned by counsel's objection is negligible. In that 

context, the rationale underlying the waiver doctrine, that 

timely objection gives the court the opportunity to cure the 

error, becomes a relatively empty one. Indeed, the 

possibility exists that counsel's objection will be viewed as 

a source of annoyance and may well aggravate the 

situation. 

Appellant's Brief at 42 (quoting Commonwealth v. Hammer, 494 A.2d 

1054, 1059 (Pa. 1985), abrogated on other grounds by Commonwealth v. 

Grant, 813 A.2d 726 (Pa. 2002)). 

Given the specific circumstances in this case - where Appellant was 

representing herself, yet was also testifying on her own behalf when the trial 

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court began questioning her - we decline to find that Appellant waived her 

challenge to 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 trial court were improper, and that the testimony elicited by 

the court was inadmissible evidence concerning her prior, non-crimen falsi 

conviction(s). Nevertheless, we reject Appellant's claim that the admission 

of this evidence constitutes reversible error. In this regard, Appellant 

essentially contends that because the court elicited the at -issue testimony, 

the court must have considered the evidence of her non-crimen falsi 

offense(s) in finding her guilty. See Appellant's Brief at 41-42. The 

Commonwealth responds that Appellant's argument "amounts to nothing 

more than pure speculation...." Commonwealth's Brief at 16. The 

Commonwealth continues: 

Id. 

Appellant's brief, isolated response to the court's original 

question regarding a criminal record did not even refer to any 

specific criminal conduct, and by its follow-up questions, the 

court was merely clarifying that she did not have a prior theft 

offense. Moreover, there is absolutely no indication in the record 

that the court, as the trier of fact, considered anything other 

than the properly presented evidence establishing that 

[A]ppellant was guilty of retail theft, i.e., the loss prevention 

officer's testimony that he discovered untagged store 

merchandise in her purse and that she had not paid for it. 

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The Commonwealth's argument convinces us that the court's error in 

eliciting testimony about Appellant's prior 

this Court has explained: 

We have identified 

conviction (s) was harmless. As 

three scenarios where the erroneous 

admission of evidence may constitute harmless error. 

Harmless error exists where: (1) the error did not 

prejudice the defendant or the prejudice was de minimis; 

(2) the erroneously admitted evidence was merely 

cumulative of other untainted evidence which was 

substantially similar to the erroneously admitted evidence; 

or (3) the properly admitted and uncontradicted evidence 

of guilt was so overwhelming and the prejudicial effect of 

the error was so insignificant by comparison that the error 

could not have contributed to the verdict. 

Commonwealth v. Fransen, 42 A.3d 1100, 1112-13 (Pa. Super. 2012) 

(internal citations omitted). 

Here, we agree with the Commonwealth that Appellant's brief mention 

of her prior criminal conduct caused only de minimis prejudice. Appellant 

did not identify any specific prior crime; instead, she only alluded to having 

committed some other, non -theft offense(s) in the past. Moreover, the 

purpose of the court's questioning was clearly to ascertain whether Appellant 

had committed any prior theft offenses, and she steadfastly maintained that 

she had not. Additionally, the court had before it the properly admitted 

evidence of Appellant's admission that she took the merchandise, as well as 

Mitchell's testimony that he found untagged merchandise in her bag, and 

that there was no record of Appellant's purchasing those items. In light of 

this strong evidence proving Appellant's guilt, we are convinced that the de 
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minimis prejudice stemming from her remark about her prior criminal 

conviction(s) did not impact the court's verdict. 

Judgment of sentence affirmed. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 2/3/2017 

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