J. S06040/15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :      IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
                           Appellee         :
                                            :
                    v.                      :
                                            :
ROBLETTE BAKER,                             :
                                            :
                           Appellant        :      No. 1372 EDA 2014


              Appeal from the Judgment of Sentence April 1, 2014
                In the Court of Common Pleas of Bucks County
               Criminal Division No(s).: CP-09-CR-0006848-2013

BEFORE: BENDER, P.J.E., LAZARUS, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                             FILED MAY 4, 2015

        Appellant, Roblette Baker, appeals from the judgment of sentence

entered in the Bucks County Court of Common Pleas following a jury trial

and her convictions for retail theft,1 conspiracy,2 corruption of minors,3 and

hindering apprehension or prosecution.4         Appellant contends the evidence

was insufficient to convict her of retail theft, conspiracy, and corruption of




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3929(a)(1).
2
    18 Pa.C.S. § 903(a).
3
    18 Pa.C.S. § 6301(a)(1).
4
    18 Pa.C.S. § 5105(a)(5).
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minors. We affirm and grant the Commonwealth’s Motion to Correct and/or

Modify the Record.

     The trial court summarized the facts of this case as follows:

        On January 25, 2013, in response to a Richland Township
        Police alert, Hilltown Township Police Officer John Gildea
        effectuated a vehicle stop. The alert was related to a retail
        theft that had just occurred at Walmart in Richland
        Township, Bucks County, Pennsylvania. The vehicle, a
        black SUV with chrome wheels, was occupied by Appellant
        and three males,[5] one of whom was Appellant’s [minor
        son]. Appellant provided Officer Gildea a fictitious name
        for [him] and a fictitious date of birth (May 8, 1986) [ ].
        [Her minor son’s] correct date of birth is October 14, 1996.

           During the stop, officers observed, in plain view,
        numerous electronic items including a large screen TV,
        computers and video games.         The Richland Township
        Police verified with Walmart’s Asset Protection Officer that
        the three males entered the Walmart Store and removed
        the previously mentioned items without paying for them.
        Video surveillance in the store recorded the above events
        between 1:01 a.m. and 1:33 a.m. The total amount of
        merchandise recovered had a retail value of two thousand
        five hundred five dollars and twenty eight cents
        ($2,505.28).

           After obtaining a court order for Appellant’s cell phone
        records, it was determined that during the thirty two (32)
        minutes that the males were in the store, one of them
        communicated with Appellant three times. Specifically, the
        cellphone records established that she was on the phone
        with one of the co-defendants at 1:11 a.m., 1:14 a.m. and
        1:23 a.m., the precise time of the retail theft.

           The investigative evidence presented at trial also
        established that . . . the four individuals, including

5
  The three males in the vehicle with Appellant were her step-son,
Maurkeece Foreman, her minor son, and her brother, Rashi Baker. See
N.T., 3/20/14, at 5, 6, 14.



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         Appellant, were at a Giant grocery store in Hilltown
         Township, Bucks County, Pennsylvania. . . .

Trial Ct. Op., 7/16/14, at 2-3.

      Appellant was sentenced to not less than time served, nor more than

twenty-three months’ incarceration for retail theft. She received no further

penalty for conspiracy.      Appellant was sentenced to thirty-six months’

probation for corruption of minors to run concurrently with the sentence for

retail theft.   This timely appeal followed.   Appellant filed a court ordered

Pa.R.A.P. 1925(b) statement of errors complained of on appeal.        The trial

court filed a responsive opinion.

      Appellant raises the following issues for our review:

         [1]. Whether the evidence was sufficient to prove the
         Appellant guilty of retail theft beyond a reasonable doubt
         where the Commonwealth did not prove that Appellant had
         any involvement in the theft of any items from the
         Walmart?[6]

         [2]. Whether the evidence was sufficient to prove the
         Appellant guilty of conspiracy beyond a reasonable doubt
         where the Commonwealth did not prove that Appellant had
         any part in an agreement to engage in a theft from the
         Walmart?

         [3]. Whether the evidence was sufficient to prove the
         Appellant guilty of corruption of minors beyond a
         reasonable doubt where the Commonwealth did not prove
         that Appellant had aided or encouraged [her minor son] to
         commit a retail theft from Walmart?

6
  We note that Appellant did not file post-sentence motions. However,
challenges to the sufficiency of the evidence can be raised for the first time
on appeal. See Pa.R.Crim.P. 606(A)(7).




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         [4]. Whether the aforesaid issues raised on appeal are
         waived because Appellant did not provide the notes of
         testimony to the trial court?

Appellant’s Brief at 4.7

      We will address Appellant’s last issue first. The instant certified record

did not include the trial transcript.8 However, Appellant included the notes

of   testimony   from      the   jury   trial   in   the   reproduced   record.   The

Commonwealth requests the record on appeal be corrected to include the

notes of testimony from the jury trial held on March 19 and 20, 2014. See

Commonwealth’ Mot. to Correct and/or Modify R., 12/10/14.

      We have held that any document which is not part of the officially

certified record is deemed non-existent─a deficiency which cannot be

remedied merely by including copies of the missing documents in a brief or

in the reproduced record.         Commonwealth v. Kennedy, 868 A.2d 582,

7
  In her Rule 1925(b) statement, Appellant also raised the following issue:
“The Commonwealth failed to present sufficient evidence to establish that
Appellant was guilty beyond a reasonable doubt of 18 Pa.C.S. § 5105(a)(5)
as there was no evidence she did anything to hinder the prosecution or
conviction of [her minor son].” Appellant’s Statement of Matters Complained
of on Appeal, 5/21/14, at 2 (unpaginated). This issue was not raised in
Appellant’s statement of questions presented. Our Supreme Court has
stated that it “should disregard as abandoned issues not raised in list of
questions presented on appeal.” Eiser v. Brown & Williamson Tobacco
Corp., 938 A.2d 417, 429 (Pa. 2007). We consider this issue abandoned.
See id.
8
  We note the trial court suggested the instant appeal be dismissed based
upon Appellant’s failure to timely provide the transcript of her jury trial. See
Trial Ct. Op. at 1-2. The trial court addressed the issues on appeal
nonetheless. See id. at 3-8.



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593 (Pa. Super. 2005).    Furthermore, “[w]here a review of an appellant’s

claim may not be made because of such a defect in the record, we may find

the issue waived.”    Id. (citation omitted).   More recently, however, our

Supreme Court held: “that where the accuracy of a pertinent document is

undisputed, the Court could consider that document if it was in the

Reproduced Record, even though it was not in the record that had been

transmitted to the Court.” Pa.R.A.P. 1921 note (citing Commonwealth v.

Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012)). In this case, because the trial

transcript is part of the reproduced record and its accuracy is undisputed, we

will grant the Commonwealth’s motion to correct the record and address

Appellant’s claims on their merits. See id.

      We will address issues one and two together because they are

interrelated. Appellant argues the evidence was insufficient to prove beyond

a reasonable doubt that she was guilty of retail theft because she lacked

“the requisite intent to deprive the merchant of any items.” Appellant’s Brief

at 16. Appellant remained in the vehicle in the parking lot while the males

went into the Walmart. Id. at 21. Appellant did not assist in unloading the

cart or putting the items into the vehicle. Id. She was unaware of the fact

that Foreman was stealing merchandise until she spoke with him on her cell

phone from the vehicle. Id.

      Appellant argues the Commonwealth failed to present sufficient

evidence that she conspired to commit retail theft. Id. at 26. Appellant did



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not enter the Walmart. Id. at 28. There was no evidence that there was an

agreement to commit the crime. Id. She avers there was no circumstantial

evidence to establish an agreement. Id.

      “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “[O]ur

scope of review is plenary and our standard of review is de novo.”9

Commonwealth v. Gerald, 47 A.3d 858, 859 (Pa. Super. 2012).

            [T]he critical inquiry on review of the sufficiency of the
         evidence to support a criminal conviction . . . does not
         require a court to ask itself whether it believes that the
         evidence at the trial established guilt beyond a reasonable
         doubt. Instead, it must determine simply whether the
         evidence believed by the fact-finder was sufficient to
         support the verdict. . . .

                                  *    *    *

             When reviewing the sufficiency of the evidence, an
         appellate court must determine whether the evidence, and
         all reasonable inferences deducible from that, viewed in
         the light most favorable to the Commonwealth as verdict
         winner, are sufficient to establish all of the elements of the
         offense beyond a reasonable doubt.

Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)

(citations and quotation marks omitted).



9
  Appellant avers the trial court erred in stating she “assisted in loading the
items into the vehicle’ after the theft.” Appellant’s Brief at 23. Given our
scope of review, this is of no moment. See Gerald, 47 A.3d at 859.
Moreover, as the trial court stated: “Because we do not have the notes of
testimony in the instant matter, we are forced to recall what happened at
the jury trial from our personal notes and memory.” Trial Ct. Op. at 2.



                                      -6-
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     “The Commonwealth may sustain its burden of proving every element

of the crime beyond a reasonable doubt by means of wholly circumstantial

evidence. Moreover, in applying the above test, the entire record must be

evaluated   and   all   evidence   actually   received   must   be   considered.”

Commonwealth v. Caban, 60 A.3d 120, 132 (Pa. Super. 2012), appeal

denied, 79 A.3d 1097 (Pa. 2013).

     Section 3929 of the Crimes Code defines retail theft:

        (a) Offense defined.─A person is guilty of 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 of the
            possession, use or benefit of such merchandise without
            paying the full retail value thereof[.]

18 Pa.C.S. § 3929(a)(1).

     Section 903 of the Crimes Code defines conspiracy:

        (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.




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18 Pa.C.S. § 903(a)(1)-(2).10

           [T]o sustain a conviction for criminal conspiracy, the
           Commonwealth must establish that the defendant
           (1) entered into an agreement to commit or aid in an
           unlawful act with another person or persons, (2) with
           a shared criminal intent and (3) an overt act was
           done in furtherance of the conspiracy. This overt act
           need not be committed by the defendant; it need
           only be committed by a co-conspirator.

        Commonwealth v. Murphy, 795 A.2d 1025, 1037-38
        (Pa. Super. 2002) (citations and internal quotation marks
        omitted).

           The essence of a criminal conspiracy is a common
           understanding, no matter how it came into being,
           that a particular criminal objective be accomplished.
           Therefore, a conviction for conspiracy requires proof
           of the existence of a shared criminal intent. An
           explicit or formal agreement to commit crimes can
           seldom, if ever, be proved and it need not be, for
           proof of a criminal partnership is almost invariably
           extracted from the circumstances that attend its
           activities. Thus, a conspiracy may be inferred
           where it is demonstrated that the relation, conduct,
           or circumstances of the parties, and the overt acts of
           the co-conspirators sufficiently prove the formation
           of a criminal confederation.



10
   We note the docket refers to the charge under subsection (c) which
provides:

        (c) Conspiracy with multiple criminal objectives.─If a
        person conspires to commit a number of crimes, he is
        guilty of only one conspiracy so long as such multiple
        crimes are the object of the same agreement or
        continuous conspiratorial relationship.

18 Pa.C.S. § 903(c) (emphasis added).



                                   -8-
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          Commonwealth v. Johnson, 719 A.2d 778, 784-785 (Pa.
          Super. 1998) (citations and internal quotation marks
          omitted).

Commonwealth v. Knox, 50 A.3d 732, 740 (Pa. Super. 2012) (emphasis

added). Furthermore, “a defendant can be held accountable for the actions

of his or her co-conspirators although the defendant did not specifically

intend     for   the   co-conspirators     to    perform     these    acts.”

Commonwealth v. Simpson, 754 A.2d 1264, 1274 (Pa. 2000) (emphasis

added).

     The following testimony was adduced at trial. Foreman testified that

he was with Appellant, her minor son, and Rahshi Baker on the date of the

incidents between 12:00 a.m. and 3:00 a.m. N.T., 3/20/14, at 6, 14. He

stole some things from Walmart and “put the stuff in the car and went back

in and grabbed a couple other things . . . .” Id. at 7. Appellant remained in

the car. Id. at 10. Appellant contacted him on his cell phone and told him

she was cold in the car.     Id. at 11.   He “informed her that [he] was

stealing.” Id. He “came out to the car and put the stuff in the car.” Id. at

10-11. Appellant did not tell him to take the items back.     Id. at 12. He

went back to Walmart to get Appellant’s son and “took some more stuff.”

Id. He brought the items back to the car and put them in the trunk. Id. at

13. Appellant was still in the car in the front seat. Id. Appellant’s minor

son and her brother came out and they all went to Giant. Id. at 14.




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      After they arrived at Giant, they all got out of the vehicle and went

into the store separately. Id. at 15. He stole grocery items. Id. at 16. A

woman from Giant came out of the store. Id. Her supervisor or manager

came out and said he was calling the police. Id. They were about to leave

and Appellant came out to the car and sat in the front seat. Id. at 17. After

they left Giant, they “got pulled over by a bunch of cops.” Id. at 18.

      Officer Gildea testified that the cell phone records show the calls

between Foreman and Appellant were at the time they were at the Walmart

from approximately 1:00 a.m. until 1:33 a.m. Id. at 55. The video from

Walmart shows they were at the Walmart at that time. Id.

      Jennifer DeLuca, an employee at Giant Food Store on the date of the

incident, testified at trial. N.T., 3/19/14, at 27. She “saw a gentleman walk

out of the door with a full shopping cart worth of merchandise.” Id. at 29.

She stated:

         When I got back to the register, I saw a young man run
         across the front end of the store towards the produce
         section and run back with something in his hand. Then
         when the gentleman walked out with the shopping cart, I
         ran after him, came back in to call my manager and the
         police, and I saw three individuals walking out of the store
         after him.

Id. at 30. She positively identified Appellant as one of the three individuals.

Id. She called the police and gave a description of the vehicle as a black

SUV. Id. at 31. The store was equipped with video surveillance which is

recording all the time.   Id. at 32.   She saw the video surveillance of the



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incident she described.11           Id. at 32.     It accurately depicted what she

described. Id.

         Richard Tucholski, a patrolman for the Hilltown Township Police

Department, testified. Id. at 39. He “was advised to conduct a traffic stop”

on a black SUV. Id. at 44. Following procedure when making a traffic stop

of a vehicle with tinted windows, he had the occupants of the vehicle put the

windows down.       Id.    He “noticed that there was [sic] three males in the

vehicle and a female. [He] also noticed behind the rear passengers there

was a 55-inch Visio─a box for a 55-inch Visio TV and numerous unbagged

grocery items.”        Id. at 45.    He identified Appellant as the female in the

vehicle. Id. at 46.

         Zachary Herb, a patrolman with the Richland Township Police

Department, testified.      Id. at 51.    He was dispatched to Giant for a retail

theft.    Id. at 53.    He saw the video surveillance showing “several African

Americans going through the store selecting merchandise, putting it in the

cart, and then ultimately pushing that cart out of the store, entering their

SUV and leaving without paying─.”           Id. at 55.   He received a report of a

traffic stop and went to the location of the SUV. Id. at 57. He determined

that the individuals in the SUV were involved in the incident at Giant. Id. at

58. He identified Appellant as being involved in the incident. Id. at 59. He


11
     The video was played for the jury. Id. at 33.




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saw unbagged groceries, “a 55-inch video [sic] TV, an HP computer, a

Gateway computer, and there were other items scattered all throughout the

back of the vehicle . . . .” Id. at 59-60.

      Brad Antalosky, a Walmart employee, testified.      Id. at 88.   On the

date of the incident he was the asset protection associate. Id. Walmart has

a “closed circuit television system, which is connected to a DVR, digital video

recorder, which is running 24 hours a day, seven days a week . . . .” Id. at

91. There are 230 cameras in the store. Id. He watched the video from

the time the three males involved in this incident entered the Walmart

parking lot. Id. at 94. They walked into the door that was the direct route

to the electronics department. Id. at 98. He described the items that were

taken from the store based upon the video.      Id. at 101.    He was able to

identify the merchandise that Officer Gildea showed him by the shipping

labels which indicated that the items came from this Walmart. Id. at 102.

The total amount for the stolen items was determined to be $2,505. Id. at

105. All three males placed items in the shopping cart. Id. at 112.

      Appellant’s arguments that the Commonwealth failed to prove that she

was guilty of retail theft or conspiracy to commit retail theft from Walmart

based upon the fact that she did not ”physically take, remove, or conceal

any Walmart merchandise” is unavailing. Viewing the evidence in the light

most favorable to the Commonwealth, a conspiracy can be inferred from the

overt acts of her co-conspirators.      See Knox, 50 A.3d at 740.         It is



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undisputed that items were taken from Walmart.         Appellant had several

phone calls with Foreman and knew he was stealing items from Walmart.

Appellant was in the car with the stolen items and accompanied her co-

conspirators to the Giant Food Store. Appellant can be guilty of conspiracy

to commit retail theft even if she did not specifically intend for the co-

conspirators to steal the items from Walmart. See Simpson, 754 A.2d at

1274. Appellant need not commit an overt act. See Knox, 50 A.3d at 740.

      We find Appellant is accountable for the actions of her co-conspirators,

namely, retail theft.   See id.; Simpson, 754 A.2d at 1274.      Viewing the

evidence in the light most favorable to the Commonwealth as verdict winner,

we find the evidence was sufficient to convict Appellant of conspiracy and

retail theft. See 18 Pa.C.S. §§ 903(c), 3929(a)(1); Ratsamy, 934 A.2d at

1237; Caban, 60 A.3d at 132; Knox, 50 A.3d at 740; Simpson, 754 A.2d

at 1274.

      Lastly, Appellant contends the evidence was insufficient to prove she

was guilty of corruption of minors because the Commonwealth did not prove

that she aided or encouraged her minor son to commit retail theft.        She

avers the statute requires “an act that corrupts or tends to corrupt a minor

into committing a crime.”12    Appellant’s Brief at 32 (emphasis supplied).



12
  We note that Appellant’s only citation to legal authority is to the statute.
The Pennsylvania Supreme Court has stated:




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Appellant contends that because she “did not commit any actions that

corrupted or tended to corrupt [her minor son] the verdict must be

reversed.” Id.

     Section 6301 of the Crimes Code defines corruption of minors:

        (a) Offense defined.─

           (1)(i) Except as provided in subparagraph (ii), whoever,
           being of the age of 18 years and upwards, by any act
           corrupts or tends to corrupt the morals of any minor
           less than 18 years of age, or who aids, abets, entices
           or encourages any such minor in the commission of any
           crime, or who knowingly assists or encourages such
           minor in violating his or her parole or any order of
           court, commits a misdemeanor of the first degree.

18 Pa.C.S. § 6301(a)(1)(i) (emphases added).

           Our Supreme Court has explained:

           The Commonwealth need not prove that the minor’s
           morals were actually corrupted. Rather, a conviction
           for corrupting morals will be upheld where the
           conduct of the defendant tends to corrupt the
           minor’s morals.     The statute speaks to conduct
           toward a child in an unlimited variety of ways
           which tends to produce or to encourage or to
           continue conduct of the child which would amount to
           delinquent conduct.

        [W]here an appellate brief fails to provide any discussion
        of a claim with citation to relevant authority or fails to
        develop the issue in any other meaningful fashion capable
        of review, that claim is waived. It is not the obligation of
        this Court, even in a capital case, to formulate Appellant’s
        arguments for him.

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009) (citations
omitted). Because our review is not hampered, we decline to find the issue
waived.



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        Commonwealth v. Mumma, [ ] 414 A.2d 1026, 1030
        ([Pa.] 1980) (citations and quotation marks omitted)
        (emphasis added).

           Similarly, this Court has explained that:

           The statute requires that the knowing, intentional
           acts of the perpetrator tend to have the effect of
           corrupting the morals of a minor.

           This court has visited the question of what
           constitutes “corruption” of a minor’s morals before.
           In Commonwealth v. Decker, 698 A.2d 99, 101
           (Pa. Super. 1997) [ ], we held that actions that
           tended to corrupt the morals of a minor were those
           that “would offend the common sense of the
           community and the sense of decency, propriety and
           morality which most people entertain.”

        Commonwealth v. DeWalt, 752 A.2d 915, 918 (Pa.
        Super. 2000) (emphasis in original, one citation omitted).

                                *     *      *

           Corruption of a minor can involve conduct towards a
           child in an unlimited number of ways. The purpose
           of such statutes is basically protective in nature.
           These statutes are designed to cover a broad range
           of conduct in order to safeguard the welfare and
           security of our children. Because of the diverse
           types of conduct that must be proscribed, such
           statutes must be drawn broadly.        It would be
           impossible to enumerate every particular act against
           which our children need be protected.

Commonwealth v. Slocum, 86 A.3d 272, 277-78 (Pa. Super. 2014) (some

citations and footnote omitted) (emphasis supplied).

     In order to find sufficient evidence of corruption of minors, an overt

act is not required. See 18 Pa.C.S. § 6301(a)(1)(i). It is sufficient if the



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“conduct of the defendant tends to corrupt the minor's morals.”       See

Slocum, 86 A.3d at 277.      Appellant knew that her minor son was in

Walmart while items were being stolen and accompanied him in Giant.

Appellant’s actions “would offend the common sense of the community and

the sense of decency, propriety and morality which most people entertain.”

See id.    Viewing the evidence in the light most favorable to the

Commonwealth, we find the evidence sufficient for the jury to convict

Appellant of corruption of minors.     See 18 Pa.C.S. § 6301(a)(1)(i);

Ratsamy, 934 A.2d at 1237; Slocum, 86 A.3d at 277-78.

     Judgment of sentence affirmed.        Commonwealth’s Mot. to Correct

and/or Modify R. granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/4/2015




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