J-A26005-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEEANNE FOUST,
Appellant No. 1275 MDA 2013
Appeal from the Judgment of Sentence July 1, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0007276-2012
BEFORE: BOWES, MUNDY, and JENKINS, JJ.
MEMORANDUM BY BOWES, J.: FILED OCTOBER 07, 2014
Leeanne Foust appeals from the judgment of sentence of three years
probation, the first thirty days of which were to be spent on house arrest
with electronic monitoring. The sentence was imposed by the trial court
after a jury convicted Appellant of retail theft. We affirm.
Appellant was convicted of retail theft based upon the following
evidence. On May 23, 2012, Irena Bones was working as a cashier at the
Dollar General Store located on Edgar Street, York. Sometime between five
and six p.m., Ms. Bones observed Appellant enter the store, take a recycling
bag that retailed for .75 cents, place various items in the bag, and leave the
store without paying for the merchandise. When Appellant entered the well-
lit store, Ms. Bones was a couple of feet away from her. During the
remainder of the incident, Appellant was about fifteen feet from the witness.
Ms. Bones immediately reported the theft to her store manager,
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Lori Kaufman, and police were notified. Ms. Bones was able to describe the
On July 25, 2012, Spring Garden Police Officer Richard Morris showed
Ms. Bones a picture created from the surveillance tape. The photograph
depicted Appellant entering the Dollar General, and Ms. Bones identified
Appellant as the perpetrator of the May 23, 2012 theft. She was then shown
Ap
-16/13, at 85.
Ms. Kaufman reported that there were seven surveillance cameras in
the store that constantly recorded. After Ms. Bones told her about the
incident, Ms. Kaufman checked the cameras, contacted police, burned a DVD
of the surveillance tapes showing the shoplifting incident, and gave the DVD
to police. It was ascertained from viewing the surveillance tape that
Appellant took $13.34 in merchandise. The DVD was played for the jury.
Appellant were married for over twenty-four years, and they separated in
July 2011. At the end of June, 2012, he was looking at some pictures on the
Crime Stoppers Website and noticed an image of what appeared to be
Appellant. Mr. Foust contacted police and asked to see the original picture,
which was taken from the surveillance tapes and depicted the perpetrator of
the May 23, 2012 retail theft. After being shown the original picture by
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Officer Morris, Mr. Foust identified it as an image of Appellant entering the
Dollar General. Id. at 134. He was ninety percent sure that the photograph
was of Appellant based upon her facial features, posture, hair, and the
manner in which she clutched her purse under her left arm.
Mr. Foust produced a credit card receipt, which Appellant had given
next door to the Dollar General in question. Mr. Foust authenticated
3:44 p.m. on May 23, 2012.
Based upon this evidence, the jury found Appellant guilty of retail
theft. The matter proceeded to sentencing on July 1, 2013. The offense in
requested a sentence of imprisonment, but the trial court imposed three
years probation with thirty days of that period spent on house arrest with
electronic monitoring. The court also indicated that Appellant was
responsible for paying the costs of house arrest with monitoring and that, if
she failed to tender payment, she would spend that period in jail. In this
appeal from the judgment of sentence, Appellant raises these contentions:
Issue I. Was eye[witness] identification evidence properly
admitted at trial, when the witness was shown a single picture of
Foust alone for identification, without an independent basis for
t
Issue II. Was a medical receipt properly admitted into evidence
at trial, when it was provided by Foust's estranged husband
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which he obtained only for purposes of record keeping for a
Health Savings Account?
Issue III. Was there sufficient evidence to convict Foust, when
the eyewitness' testimony was shown to be clearly erroneous,
and the remaining, properly admitted evidence was
circumstantial?
1
trial court improperly permitted
Ms. Bones to identify her as the perpetrator at trial due to a suggestive pre-
ruling on the admission of evidence at trial. Commonwealth v. Kendricks,
evidence are within the sound discretion of the trial court and will not be
Id. at 503.
Appellant notes that the initial identification procedure employed by
Officer Morris on July 25, 2012, with Ms. Bones was unduly suggestive since
Ms. Bones was shown only photographs of Appellant. When police employ
an improper pre-trial identification procedure, a witness may nonetheless
identify a defendant as the perpetrator at trial if the tainted identification
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1
Normally, we would address a sufficiency challenge first since, if Appellant
was to prevail on that contention, she would be entitled to be discharged.
Commonwealth v. Koch, 39 A.3d 996 (Pa.Super. 2011), appeal granted
on different grounds, 44 A.3d 1147 (Pa. 2012). However, as analyzed in the
text infra
relating to the sufficiency of the evidence. Hence, we will address the issues
in the order raised in the brief.
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procedure was not the cause of the identification of the defendant at trial.
The law is as follows:
When an out-of-court identification is alleged to be tainted,
an in-court identification may still stand if, considering the
Commonwealth v. Abdul Salaam, 544 Pa. 514, 678 A.2d 342
(1996); see also Commonwealth v. James, 506 Pa. 526, 486
A.2d 376 (1985). The factors a court should consider in
determining whether there was an independent basis for the
identification include: (1) the opportunity of the witness to view
the criminal at the time of the crime; (2) the witness's degree of
attention; (3) the accuracy of the witness's prior description of
the criminal; (4) the level of certainty demonstrated by the
witness during the confrontation; and (5) the length of time
between the crime and the confrontation. Id. at 380.
Commonwealth v. Kendricks, 30 A.3d 499, 506 (Pa.Super. 2011).
At the pre-trial hearing on this issue, Ms. Bones articulated that, even
though it was dark outside, the inside of the store was extremely well lit.
Omnibus Pretrial Hearing, 1/29/13, at 5. She observed Appellant enter the
store, go directly to where the reusable recycling bags were located, and
retrieve one. Although Ms. Bones was waiting on another customer, she
Id
witness. Id. at 8.
Ms. Bones recalled that Appellant walked over to the Tastykake aisle
and placed some items in her bag and that Appellant then proceeded to
leave the store without paying for the items or the black bag. Ms. Bones
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saw Appellant for over ninety seconds. Id. at 15. That witness testified that
there were not many customers in the store since it was not a busy time of
the day for the establishment.
Ms. Bones immediately reported the incident to the store manager.
color of her shirt, the style and color of her pants, and her shoes, which
were sandals. Id. at 7. When asked what it was in particular that made the
Id. at 10. The witness was
completely positive that Appellant was the culprit.
In light of these circumstances, the trial court did not abuse its
discretion in concluding that there was an independent basis for admission of
-court identification of Appellant and that the suggestive pre-
trial identification procedure was purged of its taint. Kendricks, supra.
her payment for her Wellspan visit. She first asserts that the receipt was
subject to the spousal privilege outlined in 42 Pa.C.S. § 5914, which states,
neither husband nor wife shall be competent or permitted to testify to
confidential communications made by one to the other, unless this privilege
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In rendering its ruling herein, the trial court relied upon
Commonwealth v. Dubin, 581 A.2d 944, 947 (Pa.Super. 1990). In that
for purposes of a pending divorce lawsuit. She discovered bank records,
income tax returns, and daily work sheets. She delivered those documents
to the prosecuting authorities. We ruled that giving the authorities the
from the spousal privilege. Id. at 947. We continued that
confidential communications. The documents evidenced business
transactions with third persons and were not confidential communications
Id. We concluded that since the records in question
Id.
Dubin controls this issue. The credit card receipt from Wellspan was
entered between Wellspan and Appellant and did not involve a
communication between Appellant and her spouse. It evidenced a business
transaction that Appellant conducted with a third party. The receipt was not
tantamount to Mr. Foust offering testimony against Appellant. Hence, the
spousal privilege did not apply in this case.
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1. However, that objection was not preserved below.
Appellant objected to the admission of the credit card receipt on the basis
that it was a confidential communication between spouses and that it
prejudicially revealed that Appellant was receiving behavioral health
treatment. N.T. Trial, 5/14-16/13, at 136, 143. She raised no HIPAA
violation as a basis for exclusion of the evidence in question. Hence, this
are waived and ca
Finally, Appellant purports to raise a sufficiency challenge. However,
insufficient to prove, beyond a reasonable doubt, that Foust was guilty of
adduced against her at trial without use of the proof that she previously
argued should not have been introduced, i.e.
identification of Appellant as the perpetrator of the May 23, 2012 retail theft
and the credit card receipt evidencing her financial transaction at Wellspan.
This type of argument does not actually raise a sufficiency argument. As our
Supreme Court noted in Commonwealth v. Brown, 52 A.3d 1139, 1188
(Pa. 2012) (citations and quotation marks omitted), a sufficiency claim is not
reviewed based upon a diminished record:
It is important to maintain the distinction between
sufficiency review and rulings on evidence. When reviewing the
sufficiency of the evidence, this Court must determine whether
the evidence at trial, and all reasonable inferences derived
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therefrom, when viewed in the light most favorable to the
verdict winner, are sufficient to support the verdict. A
sufficiency claim will not be reviewed on a diminished record, but
rather on the evidence actually presented to the finder of fact
rendering the questioned verdict. If some of the evidence relied
upon to render the verdict was inadmissible, the appropriate
remedy is to remand for a new hearing without the prohibited
evidence. Only a successful sufficiency challenge considering the
full record at trial may lead to the outright grant of relief.
Herein, Appellant is asking us to review her sufficiency claim without
the use of evidence that she contends was improperly admitted. We cannot
accede to this request. We conclude that the evidence supported the
conviction in question. A person commits retail theft if he, inter alia,
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(1).
In this case, Ms. Bones unequivocally identified Appellant. She saw
Appellant enter the store, take a bag that was not free, place items in the
bag, and leave the store without paying for any of the items. This evidence
supported the retail theft offense.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2014
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