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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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,
J-A26005-14



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

                                   -2-
J-A26005-14



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



                                    -3-
J-A26005-14


        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




____________________________________________
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.


                                               -4-
J-A26005-14



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



                                    -5-
J-A26005-14


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




                                     -6-
J-A26005-14


      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.




                                         -7-
J-A26005-14


                         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

                                          -8-
J-A26005-14


      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.




                                      -9-
J-A26005-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/7/2014




                          - 10 -
