J-S40037-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DOMINIQUE NICOLE BROWN                     :
                                               :
                       Appellant               :    No. 3013 EDA 2017

            Appeal from the Judgment of Sentence August 14, 2017
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0007963-2016


BEFORE:      LAZARUS, J., DUBOW, J., and PLATT*, J.

MEMORANDUM BY LAZARUS, J.:                                  FILED JULY 24, 2018

        Dominique Nicole Brown appeals from the judgment of sentence entered

in the Court of Common Pleas of Delaware County, after a jury convicted her

of retail theft,1 a misdemeanor of the first degree.2 Brown also challenges her

non-jury conviction of possession of small amount of marijuana,3 an ungraded

misdemeanor. After careful review, we affirm.

        Brown entered a Walmart located at 1570 Chester Pike in Eddystone,

Delaware County, on October 29, 2016.              She was seen entering the self-

checkout station with approximately seventy-five to one hundred items in her

shopping cart. At the self-checkout station, Brown allegedly scanned and paid

____________________________________________


1   18 Pa.C.S.A. § 3929(a)(1).

2   18 Pa.C.S.A. § 3929(b)(1)(iii).

3   35 P.S. § 780-113(a)(31).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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for $95.81 worth of merchandise, bagging an additional $172.86 worth of

unpaid merchandise. She was seen exiting the store with all of the items,

both paid and unpaid. Two Walmart loss prevention officers stopped Brown

and brought her to the store’s loss prevention office where they proceeded to

take inventory of the unpaid items. Police were called to the scene.

        At the loss prevention office, Sergeant Michael McNamee asked Brown

to provide him with identification. As Brown opened her purse to retrieve her

identification, Sergeant McNamee saw what he believed to be marijuana in

the purse. Brown refused to comply with Sergeant McNamee’s request to see

her purse, and a struggle ensued.              Brown was restrained and escorted to

Sergeant McNamee’s vehicle, where she attempted to flee by foot. Brown was

restrained again and taken to the Ridley Township Police Department. There

it was confirmed that the substance in her purse was marijuana.

        Brown was charged with one count of retail theft,4 one count of receiving

stolen property,5 two counts of resisting arrest,6 two counts of recklessly

endangering another person,7 and one count of possession of a small amount

of marijuana.8 She was convicted of retail theft and possession and sentenced
____________________________________________


4   18 Pa.C.S.A. § 3929(a)(1).

5   18 Pa.C.S.A. § 3925(a).

6   18 Pa.C.S.A. § 5104.

7   18 Pa.C.S.A. § 2705.

8   35 P.S. § 780-113(a)(31).


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to eighteen months’ probation and forty hours of community service for the

retail theft charge and a concurrent sentence of thirty day’s probation for the

possession charge.           Brown was also ordered to pay $100.00 in cost

assessment and $113.00 for the State Police Laboratory fee.

       On appeal, Brown asserts that the trial court erred in refusing to admit

into evidence a subpoena requesting all video surveillance tape from the

Walmart for October 29, 2016.9            The trial court denied admission of the

subpoena, claiming it was not authenticated.

       “Admissibility of evidence is within the sound discretion of the trial court

and we will not disturb an evidentiary ruling absent an abuse of that

discretion.” Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017). It

is well established that, “‘[a]n abuse of discretion may not be found merely

because an appellate court might have reached a different conclusion, but

requires a result of manifest unreasonableness, or partiality, prejudice, bias,

or ill-will, or such lack of support so as to be clearly erroneous.’”

Commonwealth v. Dillon, 925 A.2d 131, 136 (Pa. 2007) (quoting Grady v.

Frito–Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003)).

       Admissibility    of    evidence    requires:   (1)   that   the   evidence   be

authenticated; and (2) that the evidence is relevant. See Commonwealth

v. Brooks, 508 A.2d 316, 318 (Pa. Super. 1986); see also Pa.R.E. 901, 402.

____________________________________________


9 The subpoena Brown submitted was extremely broad and does not
specifically request video of the self-checkout area, which is the focus of her
appeal.

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Authentication of evidence requires that the proponent “produce evidence

sufficient to support a finding that the item is what the proponent claims it is.”

Pa.R.E. 901(a). Evidence may be considered relevant if it “has any tendency

to make a fact more or less probable than it would be without the evidence”

and if “the fact is of consequence in determining the action.” Pa.R.E. 401.

      Brown claims that subpoenas are self-authenticating, and therefore do

not require extrinsic evidence of authenticity in order to be admitted.

Alternatively, Brown claims that Raymond Trent, the Walmart employee who

assembled surveillance video for the police and observed Brown at the self-

checkout station, authenticated the subpoena when he stated that he was

familiar with the document. See N.T. Trial, 7/13/17, at 151. We need not

address the issue of whether the subpoena was self-authenticated or,

alternatively, authenticated by Trent, because we agree with the trial court

that it was irrelevant.

      Here, Brown wanted to use the subpoena to challenge Trent’s credibility.

Brown claims that she was not finished ringing up her items when she was

stopped by loss prevention, and that she never put money into the self-

checkout register. Brown claims that the subpoena supports her position that

Walmart deliberately excluded video from the vantage point of the self-

checkout area.

      The existence of the unanswered subpoena does not affect the credibility

of, or weight given to, Trent’s testimony.   Trent testified that the request for

the videotape would not have come straight to him, and that it was likely the

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loss prevention manager who would be responsible for such requests. See

N.T. 7/13/17, at 152-53. Trent also testified that he had not previously seen

the subpoena before it was presented to him during cross-examination. Id.

Furthermore, Trent could not confirm that footage of the self-checkout area

at the time of the incident existed, testifying that “if the police asked me for

it they would have had it.” N.T. Trail, 7/13/17, at 130. Even if the tape does

exist, however, the presence of the subpoena does not discredit Trent’s

account of the incident.    If Brown wanted to use the subpoena to show

Walmart’s willful non-compliance, she should have identified the exact

individual who received service of the document.

      Trent, not having received the subpoena personally, could not confirm

that Walmart did not willfully comply with the subpoena.         Therefore the

subpoena was irrelevant. In addition, the existence of the subpoena does not

pass the test for relevance enumerated in Pennsylvania Rule of Evidence 401

because “it does not tend to make it more or less probable that the Defendant

committed Retail Theft.” Trial Court Opinion, 2/12/18, at 7. Nothing in the

record supports the conclusion that the trial court’s decision was manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will. Nor was

there such lack of support for the court’s conclusions as to be clearly

erroneous. Dillion, supra.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/24/18




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