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HomeMy WebLinkAbout93-0118 CriminalCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA lis CRIMINAL 1993 V CHARGE: RETAIL THEFT Ord or subsequent offense) DIEDRA ELIZABETH WALKER OTN: E073844-1 AFFIANT: CPL. BRIAN McKAY IN RE: DEFENDANT'S POST -VERDICT MOTION BEFORE OLER, J. ORDER OF COURT AND NOW, this 30?4day of November, 1993, after careful consideration of Defendant's post -verdict motion for a new trial, the motion is DENIED, a presentence investigation report is ORDERED, and Defendant is DIRECTED to appear for sentencing at the call of the District Attorney. BY THE COURT, Oesley Oler, 4ir -J. William I. Gabig, Esq. Sr. Assistant District Attorney William Braught, Esq. Assistant Public Defender :rc COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 118 CRIMINAL 1993 V. CHARGE: RETAIL THEFT (3rd or subsequent offense) DIEDRA ELIZABETH WALKER OTN: E073844-1 AFFIANT: CPL. BRIAN McKAY IN RE: DEFENDANT'S POST -VERDICT MOTION BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. The present criminal case arises out of an alleged retail theft' in which Defendant concealed two compact discs beneath her coat2 and attempted to leave a certain department in a store without paying for them.3 Following a jury trial on June 28, 1993, Defendant was found guilty as charged .4 She filed a post -verdict motion for a new trial asserting the Court erred in refusing to exclude testimony to the effect that she gave store employees an incorrect name.' For the reasons stated in this Opinion, the motion must be denied. Evidence was presented at trial tending to show the following facts: Defendant and a companion were observed by Thomas A. Hoag and Jeffrey D. Kurtz, store detectives at the Ames Department Store in the Capital City Mall, Lower Allen ' N.T. 26, Trial, Commonwealth v. Walker, No. 118 Criminal 1993 (June 28, 1993) (hereinafter N.T. ). 2 N.T. 21-22. 3 N.T. 24. ' N.T. 97. ' See generally Defendant's Post -trial Motions. 118 Criminal 1993 Township, Cumberland County, Pennsylvania, entering the electronics department.e Mr. Hoag observed Defendant pick up a compact disc and place it underneath her coat, under her left arm, so that it was completely out of sight.' A moment later, Defendant picked up another compact disc and concealed it in a similar manner.' Following this, Mr. Hoag observed Defendant walking out of the electronics department.' In order to leave this department, Defendant had to pass a sign which indicated that all items purchased in that department should be paid for at the register near the entrance to the department. io After passing the cash register and exiting the department, Defendant was approached by Mr. Kurtz, who identified himself as a store detective." Mr. Kurtz took hold of Defendant's arm, at which time the two compact discs fell to the floor." Defendant was then taken to the store's loss prevention office for the purpose of an interview." 6 N.T. 16-17. ' N.T. 20-21. a N.T. 21. 9 N.T. 24. 10 N.T. 24. 11 N.T. 59-60. 12 N.T. 60. 13 N.T. 27. 4 118 Criminal 1993 Mr. Kurtz conducted the interview in the presence of Mr. Hoag.1' Defendant was asked for certain personal information, such as her name and address." It was standard procedure for this information to be entered on a store "apprehension report.i18 During the interview, Defendant Walker told Mr. Kurtz that her name was Gaynetta Layton, 17 and this was the name placed on the apprehension report, which was given to the police when they arrived.1e At trial, when the prosecution attempted to elicit the testimony of Thomas Hoag as to Defendant's having given a false name in the interview, the defense objected.19 The basis for this objection was that information as to the statement of Defendant was not provided to the defense during discovery.20 At this point, the Court excused the jury, and an on -the -record discussion was held with the defense and prosecution. During this discussion, Defendant's counsel, William R. Braught, Esq., Assistant Public Defender, indicated that an informal request for discovery had been made on 14 N.T. 61. " N.T. 61. 16 N.T. 28. 17 N.T. 61. Gaynetta Layton was, in fact, the name of a companion of the Defendant. N.T. 77-78. 18 N.T. 61. 19 N.T. 29. 20 N.T. 29. 3 118 Criminal 1993 May 20, 1993.21 Although the prosecutor, Senior Assistant District Attorney William I. Gabig, Esq., stated that he did not recall this specific request, he did recall meeting with defense counsel on several occasions regarding thecase.22 Mr. Gabig related that on the morning of trial, while having a discussion about the "handwritten statement of the Defendant ... in terms of the identification issue" with the affiant, former corporal Brian McKay, he saw in his file no indication of a police report or reference to any occurrence of discovery.21 Mr. Gabig said that he called Mr. Braught, who also was unsure as to whether discovery had taken place, and told him of the statement, which was then provided to Mr. Braught .2' According to Mr. Gabig, Officer McKay told Mr. Gabig that the contents of this statement were contained in his police report, and that the report was reviewed at the preliminary hearing stage with another public defender representing Defendant.25 Officer McKay was called to the stand and testified that on the day of the preliminary hearing he informed Timothy Clawges, Esq., the public defender who preceded Mr. Braught in the handling of this case, of the fact that Defendant had 21 N.T. 32. 22 N.T. 32. 23 N.T. 33. 24 N.T. 33. 25 N.T. 33-34. 4 118 Criminal 1993 given a false name.28 Additionally, Officer McKay testified that the apprehension sheet from Ames was part of his police report, and that this report was available for defense counsel to review at any time.27 Officer McKay's testimony was unrefuted by Defendant and was found to be credible by the Court.28 Following this discussion and testimony, conducted and received out of the jury's presence, Defendant's objection was overruled and testimony was permitted pertaining to Defendant's having given a false name to the store security officers.29 At the conclusion of the Commonwealth's case, Defendant chose to present no evidence.30 After being found guilty, she filed a post -verdict motion for a new trial claiming that the court had erred in admitting into evidence testimony as to her having given a false name to store employees." The defense relies on Pennsylvania Rule of Criminal Procedure 30513(1)(b) to support its position that the evidence of Defendant's statement should not have been admitted. Defendant contends that she had not been provided with the statement as 26 N.T. 38. 27 N.T. 39. 28 N. T. 39, 40, 41. 29 N.T. 41. 30 N.T. 84-85. 31 See generally Defendant's Post -trial Motions. 5 118 Criminal 1993 part of discovery initiated on May 20, 1993.32 Pennsylvania Rule of Criminal Procedure 305B(1)(b) provides: (1) Mandatory: In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photograph such items.... (b) any written confession or inculpatory statement, or the substance of any oral confession or inculpatory statement, and the identity of the person to whom the confession or inculpatory statement was made, which is in the possession or control of the attorney for the Commonwealth. Several factors, however, militate against granting Defendant's request for relief. First, in Commonwealth v. Bonacurso, 500 Pa. 247,455 A.2d 1175, cert. denied, 462 U.S. 1120, 103 S. Ct. 30901 77 L. Ed. 2d 1350 (1983), the Pennsylvania Supreme Court was confronted with a case involving facts somewhat similar to those in the case at bar, and denied relief to the defendant. In Bonacurso, the prosecutor was unaware of the existence of certain statements by a witness in time to provide them to the defense during pretrial discovery. The Court stated that, "[u]nder these circumstances, the prevailing view in this Commonwealth is that the prosecution does not violate 32 N.T. 32. 0 118 Criminal 1993 discovery rules when it fails to provide the defense with evidence that it does not possess and of which it is unaware during pre-trial discovery, even if the evidence is in police custody." Id. at 251 n.3, 455 A.2d at 1177 n.3 (emphasis added). In the present case, it appears that until the morning of trial the prosecutor was unaware of the police report containing the false name given by Defendant when apprehended by the store detectives. Upon learning of this, he immediately telephoned Defendant's attorney, Mr. Braught, and sent him statements provided by Corporal McKay that morning. Without suggesting that under no circumstances could a statement of which a prosecutor was unaware be the subject of an exclusion order pursuant to Pennsylvania Rule of Criminal Procedure 305B(1) (b), the Court does not believe that such an order was automatically required in this case. Second, the information at issue was in fact provided to Defendant's counsel prior to formal arraignment. In this regard, the Court found credible the unrefuted testimony of former Corporal McKay that he had informed the prior public defender, Mr. Clawges, of Defendant's having initially provided a false name. Finally, even if the Court erred in permitting the testimony at issue, it is believed that the ruling did not rise to the level of reversible error. The offense of retail theft is set forth in Section 3929 of the Crimes Code.33 Subsection (c) of this provision reads as follows: 33 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §3929. 7 118 Criminal 1993 Any person intentionally concealing unpurchased property of any store ..., either on the premises or outside the premises of such store, shall be prima facie presumed to have so concealed such property with the intention of depriving the merchant of the possession, use or benefit of such merchandise without paying the full retail value thereof ..., and the finding of such unpurchased property concealed, upon the person or among the belongings of such person, shall be prima facie evidence of intentional concealment ....34 Not all trial court errors are reversible. 17 Standard Pennsylvania Practice 2d §92:42 (1983). Following a trial on the merits, "the question is not whether the case was tried with strict correctness in every respect, but whether substantial error was committed in any material particular." Id., at 85. Error by the trial court is considered harmless where: (1) the error did not prejudice the defendant or the prejudice was de minimis; or (2) the erroneously admitted evidence was merely cumulative of other, untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict. Commonwealth v. Foy, 531 Pa. 322, 327, 612 A.2d 1349, 1352 (1992). In the present case, there was uncontradicted testimony to the effect that Defendant intentionally concealed two compact discs beneath her coat on the premises 34 Id., 18 Pa. C.S.A. §3929(c). E: 118 Criminal 1993 of the Ames store and tried to leave without paying for them. In light of the overwhelming nature of this evidence, it is difficult to believe that a verdict different from that which was obtained would have resulted from the exclusion of testimony as to Defendant's initial misidentification. For the foregoing reasons, the following Order will be entered: ORDER OF COURT AND NOW, this - day of November, 1993, after careful consideration of Defendant's post -verdict motion for a new trial, the motion is DENIED, a presentence investigation report is ORDERED, and Defendant is DIRECTED to appear for sentencing at the call of the District Attorney. William I. Gabig, Esq. Sr. Assistant District Attorney William Braught, Esq. Assistant Public Defender :rc BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr. J. �c