J-S42018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

MARDEA SHAREE FREEMAN

                            Appellant                  No. 2584 EDA 2014


             Appeal from the Judgment of Sentence August 5, 2014
                 In the Court of Common Pleas of Bucks County
              Criminal Division at No(s): CP-09-CR-0007735-2013

BEFORE: SHOGAN, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                         FILED SEPTEMBER 18, 2015

        Appellant, Mardea Sharee Freeman, appeals from the August 5, 2014

judgment of sentence of six months’ probation, imposed after the trial court

found her guilty of one count of criminal conspiracy.1 After careful review,

we affirm.

        The trial court summarized the relevant facts of this case as follows.

                     [Sheldon] Campbell[, a loss prevention
              officer,] [] testified that he had been working at the
              Bensalem Home Depot store [in Bucks County,
              Pennsylvania,] around 9:45 p.m. [on October 18,
              2013] when two African-American females, later
              identified as Appellant and Dawn Smalley, entered
              the store pushing a shopping cart. The store was
              “pretty much empty” and preparing to close.
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S.A. § 903.
J-S42018-15


              Appellant and Ms. Smalley were not carrying any
              Home [D]epot merchandise when they entered the
              store and Appellant was pushing the cart. They
              proceeded to the paint department where Ms.
              Smalley selected a gallon can of Behr paint and
              placed it in the cart. The pair then proceeded side-
              by-side to the faucet aisle where Ms. Smalley
              selected two filters and placed them in the cart.
              With Appellant still pushing the cart, the pair then
              proceeded to the front of the store to the service
              desk area.

                     When Appellant and Ms. Smalley arrived at the
              desk, Campbell testified that he was standing next to
              the cashier and Ms. Smalley asked to “return this
              merchandise” without a return receipt. The cashier
              informed Ms. Smalley that without a receipt, a
              driver’s license was required to complete the return
              of the merchandise. Appellant then handed over her
              license to complete the transaction. Appellant was
              then issued a return receipt and a card for “a store
              credit for $132 and some cents” for merchandise
              “they took off the shelf.” After Campbell observed
              Appellant sign the electronic pad for the receipt, he
              apprehended Appellant at which point Ms. Smalley
              “fled the store.” Store personnel were able to catch
              up to [Ms. Smalley] and detain her. Appellant was
              subsequently turned over to the custody of the
              Bensalem Township police.

Trial Court Opinion, 8/14/15, at 6-7 (citation omitted).

        By   criminal    information,     filed   on    December      18,   2013,    the

Commonwealth        charged     Appellant      with    one   count   each   of   criminal

conspiracy and theft by deception.2            On March 17, 2014, Appellant was

admitted into the Bucks County Accelerated Rehabilitative Disposition (ARD)

____________________________________________


2
    18 Pa.C.S.A. 3922(a)(1).



                                           -2-
J-S42018-15


program for 12 months. After an arrest on new criminal charges, however,

Appellant’s participation in the ARD program was revoked on August 5,

2014. Immediately thereafter, Appellant, represented by retained counsel,

proceeded to a bench trial on the two charges. At the conclusion of the trial,

the trial court found Appellant guilty of criminal conspiracy, but not guilty of

theft by deception. That same day, the trial court sentenced Appellant to six

months’ probation.

       On August 27, 2014, Appellant’s counsel timely filed a notice of appeal

with a letter explaining that he had not been retained to represent Appellant

on appeal. Trial counsel, however, did not withdraw his representation, and

later failed to comply with the trial court’s September 15, 2014 order to file

a Pennsylvania Rule of Appellate Procedure 1925(b) statement. 3 As detailed

in our July 23, 2015 memorandum, we concluded this was per se

ineffectiveness. Commonwealth v. Freeman, --- A.3d ---, 2584 EDA 2014

(Pa. Super. 2015) (unpublished memorandum at 4).                Therefore, we

remanded this case under Rule 1925(c)(3) for Appellant to file a Rule

____________________________________________


3
  On October 14, 2014, the trial court issued a Rule 1925(a) opinion, finding
Appellant had waived her appeal based on her failure to file a Rule 1925(b)
statement and suggesting that we quash this appeal. Also on that date,
Appellant’s trial counsel filed with this Court a motion to withdraw as
counsel. On November 5, 2014, this Court, per curiam, granted counsel’s
motion to withdraw and directed the trial court to determine Appellant’s
eligibility for court-appointed counsel within 60 days. Consequently, on
November 26, 2014, the trial court held a hearing and appointed the public
defender to represent Appellant in this appeal.



                                           -3-
J-S42018-15


1925(b) statement nunc pro tunc within 30 days and for the trial court to

prepare an opinion 30 days thereafter. On remand, Appellant and the trial

court complied with Rule 1925, and the case returns to us for disposition.

      On appeal, Appellant presents three issues for our review, which we

have reordered for our discussion as follows.

            [1.]   Whether the evidence introduced at trial was
                   sufficient to establish that [] Appellant was
                   guilty of criminal conspiracy to theft by
                   deception?

            [2.]   Whether the Commonwealth’s failure to
                   provide [] Appellant with the Home Depot
                   security surveillance video violated her right to
                   due process as guaranteed by the Fourteenth
                   Amendment to the United States Constitution?

            [3.]   Whether the trial court erred in denying []
                   Appellant’s motion for an adverse inference
                   concerning the non-preserved Home Depot
                   security surveillance video in this case, when
                   Appellant believes that said video contained
                   exculpatory evidence which was critical to []
                   Appellant’s defense?

Appellant’s Brief at 5.

      In her first issue on appeal, Appellant challenges the sufficiency of the

evidence that the Commonwealth presented to convict her of criminal

conspiracy to commit theft by deception.        Appellant’s Brief at 23.     Our

standard of review for challenges to the sufficiency of the evidence is as

follows. “In reviewing the sufficiency of the evidence, we consider whether

the evidence presented at trial, and all reasonable inferences drawn

therefrom, viewed in a light most favorable to the Commonwealth as the

                                      -4-
J-S42018-15


verdict winner, support the [trial court]’s verdict beyond a reasonable

doubt.” Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation

omitted), cert. denied, Patterson v. Pennsylvania, 135 S. Ct. 1400

(2015). “The Commonwealth can meet its burden by wholly circumstantial

evidence and any doubt about the defendant’s guilt is to be resolved by the

fact finder unless the evidence is so weak and inconclusive that, as a matter

of   law,   no   probability   of   fact   can   be   drawn   from   the   combined

circumstances.” Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super.

2013) (en banc) (internal quotation marks and citation omitted), appeal

denied, 95 A.3d 277 (Pa. 2014). As an appellate court, we must review “the

entire record … and all evidence actually received[.]” Id. (internal quotation

marks and citation omitted).        “[T]he trier of fact while passing upon the

credibility of witnesses and the weight of the evidence produced, is free to

believe all, part or none of the evidence.”           Commonwealth v. Orie, 88

A.3d 983, 1014 (Pa. Super. 2014) (citation omitted), appeal denied, 99 A.3d

925 (Pa. 2014). “Because evidentiary sufficiency is a question of law, our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Diamond, 83 A.3d 119, 126 (Pa. 2013) (citation

omitted), cert. denied, Diamond v. Pennsylvania, 135 S. Ct. 145 (2014).

      In this case, Appellant was convicted of criminal conspiracy, which is

defined as follows.

             § 903. Criminal conspiracy


                                           -5-
J-S42018-15


            (a) Definition of conspiracy.--A person is guilty of
            conspiracy with another person or persons to commit
            a crime if with the intent of promoting or facilitating
            its commission he:

                   (1) agrees with such other person or persons
                   that they or one or more of them will engage
                   in conduct which constitutes such crime or an
                   attempt or solicitation to commit such crime;
                   or

                   (2) agrees to aid such other person or persons
                   in the planning or commission of such crime or
                   of an attempt or solicitation to commit such
                   crime.

18 Pa.C.S.A. § 903(a). Further, the crime of theft by deception is codified in

part as follows.


            § 3922. Theft by deception

            (a) Offense defined.--A person is guilty of theft if
            he intentionally obtains or withholds property of
            another by deception. A person deceives if he
            intentionally:

                   (1) creates or reinforces a false impression,
                   including false impressions as to law, value,
                   intention or other state of mind; but deception
                   as to a person's intention to perform a promise
                   shall not be inferred from the fact alone that
                   he did not subsequently perform the promise;

                                      …

Id. § 3922(a)(1).    Specifically, Appellant argues that the evidence did not

establish that Appellant intended to, or actually did, enter into an agreement

with Smalley to withhold the property of Home Depot by creating or

reinforcing a false impression. Appellant’s Brief at 23. Appellant proceeds

                                     -6-
J-S42018-15


to highlight the evidence that was most favorable to her while ignoring the

Commonwealth’s evidence. Id. at 23-24.

         “[A] conviction for conspiracy requires proof of the existence of a

shared criminal intent.” Commonwealth v. McCoy, 69 A.3d 658, 664 (Pa.

Super.     2013),   appeal   denied,   83    A.3d   414   (Pa.   2014),   quoting

Commonwealth v. Swerdlow, 636 A.2d 1173, 1176-1177 (Pa. Super.

1994). Further, the proof of an agreement to commit crimes almost always

relies on circumstantial evidence because there is rarely a formal agreement

between conspirators. Commonwealth v. Kinard, 95 A.3d 279, 293 (Pa.

Super. 2014) (en banc). Accordingly, a conspiracy may be inferred from the

conduct of the parties, taking into account the following factors: “(1) an

association between alleged conspirators, (2) knowledge of the commission

of the crime, (3) presence at the scene of the crime, and (4) participation in

the object of the conspiracy.” Id. (citation omitted). Still, a person can be

convicted of conspiracy even if that person does not participate in the

commission of the underlying crime.           McCoy, supra at 665 (citation

omitted).

      Here, the totality of the evidence, viewed in the light most favorable to

the Commonwealth, was sufficient to convict Appellant of conspiracy.

Appellant testified that she drove Smalley to Home Depot. N.T., 8/5/14, at

74-76. She also admitted that she accompanied Smalley around the store,

and she watched Smalley take the paint and faucet filters from the shelves


                                       -7-
J-S42018-15


and put them into bags inside the shopping cart. Id. at 76-77. Campbell

similarly testified that he watched Appellant push the cart while Smalley

took the paint and faucet filters from the shelves and place them in the cart.

Id. at 38-42. Appellant conceded that she went to the service desk register

with Smalley and was present while Smalley attempted to return the paint

and faucet filters that they had not paid for.     Id. at 78-79.   When the

cashier requested identification to process the return, Appellant gave her

driver’s license to the cashier. Id. at 43. Thus, Appellant associated with

Smalley, knew about the plan to defraud Home Depot, was present at the

scene, and participated in the theft by deception. See Kinard, supra.

      Further, even if we accept Appellant’s version of the incident, the

evidence would still be sufficient to convict her of conspiracy.    Appellant

contends that she did not select the items or place them in the shopping

cart, but she does not dispute that she closely accompanied Smalley

throughout the incident.    Moreover, Appellant contends that she did not

directly pass her identification card to the cashier, but she does not contest

that her driver’s license was used to attempt to return the unpaid-for items.

Therefore, the evidence was sufficient to allow the trial court to conclude

that Appellant intended to, and actually did, enter an agreement with

Smalley to commit theft by deception, and Appellant’s first issue is

meritless. See id.; McCoy, supra.




                                    -8-
J-S42018-15


        In her second issue, Appellant claims there was a Brady4 violation

because the Commonwealth did not provide her with the Home Depot video

surveillance of the incident. Appellant’s Brief at 18. To establish a violation

of Brady, or of Pennsylvania Rule of Criminal Procedure 573, the defendant

must show, in part, that the prosecution suppressed evidence, i.e., that the

Commonwealth withheld evidence in its possession.          Pa.R.Crim.P. 573;

Commonwealth v. Melvin, 103 A.3d 1, 32-33 (Pa. Super. 2014).             Here,

Appellant concedes that the Commonwealth never had possession of the

video surveillance evidence. Appellant’s Brief at 17 (noting that the security

footage was destroyed because “neither [the police nor the district attorney]

bothered to get Home Depot to burn the video in [] Appellant’s case to a

CD[,] so that said information could be preserved[]”). Therefore, there was

no violation of Brady or Rule 573 because neither the Commonwealth nor

the police ever exercised control over the surveillance video and, thus, had

no ability or duty to produce it to Appellant. 5    See Commonwealth v.


____________________________________________


4
    Brady v. Maryland, 393 U.S. 83 (1963).
5
  Even if the surveillance video were available, Appellant has not established
that it would be favorable to her defense. She states merely that the video
“would have supported her assertion that she never selected any of the
items in question from the shelves and never personally handed the sales
clerk her license to complete the return in question.” Appellant’s Brief at 17.
Neither fact is exculpatory. As noted above, the trial court could find
Appellant guilty of conspiracy even if she did not participate in the theft.
See McCoy, supra.          Moreover, Appellant does not dispute that she
(Footnote Continued Next Page)


                                           -9-
J-S42018-15


Collins, 857 A.2d 237, 253 (Pa. 2008). Accordingly, we conclude this issue

is meritless.

      In her third issue, Appellant argues the trial court erred by denying

Appellant’s motion for an adverse inference concerning the non-preserved

Home Depot video surveillance.             Appellant’s Brief at 15.   To warrant an

adverse inference regarding missing evidence, the defendant must show that

“evidence which would properly be part of a case is within control of the

party whose interest it would naturally be to produce it, and, without

satisfactory    explanation         he    fails     to   [produce   the   evidence].”

Commonwealth v. Trignani, 138 A.2d 215, 219 (Pa. Super. 1958)

(citation omitted), affirmed, 142 A.2d 160 (Pa. 1958). If the defendant can

do so, then “the [factfinder] may draw an inference that it would be

favorable to [the party that fails to produce the evidence].” Id.

      Here, Appellant complains that the surveillance video of the incident

was not available to her because neither the Commonwealth nor the police

preserved the video before Home Depot converted to a new surveillance

system in January 2014, in the ordinary course of business.               Appellant’s

Brief at 17. This “missing evidence” does not warrant an adverse instruction

for several reasons. Appellant concedes that neither the Commonwealth nor

the police had the surveillance video in their actual possession at any time.
                       _______________________
(Footnote Continued)

accompanied Smalley throughout the incident and that her driver’s license
was used to attempt to obtain money for the unpaid-for merchandise.



                                           - 10 -
J-S42018-15


Appellant’s Brief at 17; see also Trignani, supra. Moreover, until the time

Home Depot converted to a new surveillance system, the video of the

incident was equally available to Appellant. Significantly, Appellant does not

contend that she did not have knowledge of the video nor does she provide

a reason that it was not available for her to obtain. Appellant’s Brief at 17.

Further, Appellant admits that the Commonwealth and the police had a

satisfactory explanation that they could not produce the video; Home Depot

discarded it in the normal course of business. Id. Appellant does not assert

that the Commonwealth or police intentionally did not obtain or preserve the

video because it was exculpatory.      Therefore, we conclude this issue is

without merit, as Appellant was not entitled to an adverse inference based

on the failure of a third party, Home Depot, to preserve the surveillance

video of the incident when the video was never exclusively available to the

Commonwealth. See Trignani, supra.

      Based on the above reasons, we conclude all of Appellant’s issues are

meritless. Accordingly, we affirm the trial court’s August 5, 2014 judgment

of sentence.

      Judgment of sentence affirmed.




                                    - 11 -
J-S42018-15




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2015




                          - 12 -
