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### -S96007-16
NON-PRECEDENTIALDECISION - SEE 

### SUPERIORCOURT

### I.O.P. 

### 65.37 COMMONWEALTH OF PENNSYLVANIA,

1 IN THE SUPERIORCOURT OF PENNSYLVANIA

v. TAKISHA MADISON, Appellee



### Appellant No. 1956 WDA 2015 Appeal

### fromtheJudgmentofSentence Entered November 18, 2015 Inthe CourtofCommon Pleas of

### AlleghenyCounty 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 ofsentence 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). Aftercareful review, we 

### affirm. In 

### September of2015, a Magisterial 

### District Judge convicted 

### Appellant of retail 

### theft and sentenced herto 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 

### thattrial, 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 ofJ

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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 notshow 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 

### statementadmitting it. 

### [Appellant] made a general 

### objection to the

... admission 

### [ofthe 

### 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. Thevalueofthe merchandisewas 

### $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 

### forrelief, requesting

### thatwe remand 

### for Appellant to file a Rule 

### 1925(b) 

### statement 

### nuncpro tunc. This Court 

### ultimately granted counsel's request and remanded 

### Appellant's case to the 

### trial courtforhertofile a 

### nuncprotunc Rule 

### 1925(b) statement, and 

### forthe 

### court to prepare a responsive opinion. 

### See Per Curiam Order, 

### 5/23/16. Upon remand,

### Appellantfiled her concise

### statement, and

### the court issued an opinion on October 28, 2016. Herein,

### Appellant raises

### three issues

### forour review:
1. Is 

### Appellant's 

### [r]etail 

### [t]heft conviction void ab 

### initio due to the absence of subject 

### matterjurisdiction for any 

### court in the Commonwealth of Pennsylvania? 2. Should

### Appellant receive a new

### trial dueto the

### violation ofthe 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 

### contemporaneousobservations? 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, ofthe 

### fact

### that she had 

### previously been convicted of a non

### -theft offense? 

### Appellant's Briefat 3. In

### Appellant's

### first issue, sheclaims

### thatthe Court ofCommon Pleas of Allegheny County 

### (and/or any 

### court in this 

### Commonwealth) lacked 

### subject 

### matterjurisdiction over her case because the specific location of her crime
was neverestablished. This 

### argument is meritless. OurCourt has 

### stated: 

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The locus of a crime is always in issue, 

### for a 

### court has no 

### jurisdiction ofthe offense unless

### committed in the 

### countywhere 

### tried. Usuallythe question is not specifically raised but, in such case,

### the conviction 

### of a 

### defendant is 

### conclusive 

### thatthe 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[,]

... 

### ifthe place

### of its commission is 

### not disputed, the defect is 

### cured by 

### [a] verdictof

### guilty. Commonwealth v. 

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

### (internal citationsand 

### 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

### AlleghenyCounty on oraboutJuly 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"fromthe Gabriel Brothersstore 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 CourtofCommon Pleas ofAllegheny County is meritless. Appellant next argues 

### that the Commonwealth 

### violated the 

### 'Best Evidence Rule.d This Court hasexplained: 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 ofthe 

### 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 

### "bestevidence" 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 Ruleof 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 inthese 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 ofthe 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 

### ifthe 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, 719A.2d at 1052. 

### Commonwealth v. 

### Fisher, 764 A.2d 82, 

### 87-88 (Pa. Super. 2000) (some internal citations

### omitted; emphasisadded).

2An amended version of Rule 1002 became 

### effective in March of2013. 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'sBriefat 10. Thatoffense isdefined as: 

### (a) Offense

### defined.--A person is

### guiltyof 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 ofthe 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 

### sufficientevidence - aside 

### from Mitchell's

### testimony about what he viewed on thevideotape - 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 doorwhere

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

### fromthe store. 

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Security was checking 

### bags." Admission 

### Statement, 

### 7/2/15. Because Mitchell's

### testimonyabout his own 

### observations, and 

### Appellant's

### admittingto taking the merchandise,were

### sufficient to provethe 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

### thatthe

### trial court erred by questioning her in such a manner

### that elicited 

### impropertestimony about her 

### prior convictions. Specifically, Appellant takes issue 

### with the following exchangebetween her andthe 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

### forwhat

## I'mbeingaccused of. THE COURT: You said you 

### don't want to be labeled a 

### thief. Do you have a record of being athief?

4 We note

### that Appellant contends 

### that her "alleged confessionwould 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

### thatthe crime be 

### corroborated by 

### independentevidence." 

### 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 thevideotape, 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 

### corroboratedAppellant'sconfession, 

### thecorpus

### delecti rule is inapplicable. 

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### -S96007-16 [Appellant]: No, I do not,Your Honor. THE COURT: Areyou sure? 

### [Appellant]: Yes. THE COURT: I can look it up. 

### [Appellant]: Yes,you can. THE COURT: So, 

### [y]ou neverstoleanything? 

### [Appellant]: That iscorrect. 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 byfailing to

### objecttothe court's questioning. 

### Appellantcounters

### 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 questionor makes a 

### commentduring 

### 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 timelyobjection givesthe 

### courtthe

### opportunityto cure 

### the error, becomes a 

### relatively empty one. 

### Indeed, the possibility exists

### that counsel's 

### objection will beviewed 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), 

### abrogatedon 

### othergrounds by

### Commonwealth v. 

### Grant, 813 A.2d 726 (Pa. 

### 2002)). Given the specific circumstances in 

### this case - where 

### Appellant was representing herself,

### yetwas also

### testifying on her own behalfwhenthe

### 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 Commonwealthcontinues:



### 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 inthe 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 

### thatshe 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 hasexplained: We have identified conviction(s) was harmless. As



### three scenarios where the erroneous admission ofevidencemay

### 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 

### substantiallysimilarto 

### theerroneously 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

### thatthe 

### error could not have 

### contributedto the

### verdict. 

### Commonwealth v. 

### Fransen, 42 A.3d 1100, 

### 1112-13 (Pa. Super. 2012) 

### (internal citationsomitted). Here, we agree 

### with the Commonwealth 

### thatAppellant's briefmention 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 purposeofthe 

### court's questioningwas 

### clearlyto ascertain

### whetherAppellant had 

### committed any 

### prior

## theftoffenses, and she 

### steadfastly maintained 

### that she had not. 

### Additionally, the 

### court had before it 

### the properly admitted evidence ofAppellant's admission

### that she 

### tookthe merchandise, aswell as Mitchell's 

### testimony that he found untagged merchandise in her bag, and 

### that there was no record ofAppellant's purchasing those items. In 

### light of this strong evidence proving Appellant's 

### guilt, we are convinced 

### that the deJ

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minimis prejudice stemming from her 

### remark about her 

### prior criminal conviction(s) did not impactthe court's

### verdict. Judgmentofsentence

### affirmed.
Judgment Entered.

J seph D. Seletyn, Prothonotary

Date: 

### 2/3/2017

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