Judges Opinions Public Notices, — February 3, 2021 12:14 — 0 Comments

Public Notices, February 3, 2021

Volume 58, No. 27

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

FICTITIOUS NAMES

 

TABLE OF CONTENTS

Commonwealth of Pennsylvania v. Ana Trinidad-Sanchez

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF CAMELIA A. UNDERKOFFLER, late of 440 E. Lincoln Ave., Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.


Colleen J. Hoch, Co-Executor

835 Blattadahl Rd.

Mohrsville, PA 19541

 

Sharon L. Gruber, Co-Executor

26 North Rd.

Robesonia, PA 19551

 

Robert R. Kreitz, Esquire

Kreitz | Gallen-Schutt

1210 Broadcasting Road, Suite 103

Wyomissing, PA 19610

 

ESTATE OF JOANNE M. ROBB, A/K/A, JOANNE MOYER, A/K/A, JOANNE MARIE ROBB, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.


Samantha Schaeffer, Administratrix

 

Loreen M. Burkett, Esquire

Weiss Burkett

802 Walnut Street

Lebanon, PA 17042

 

ESTATE OF THOMAS A. SHAAK, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrixes.

 

Cathy L. Wise & Caren A. Butera, Co-Executrixes

 

James K. Noel, IV, Esquire

McNees Wallace & Nurick LLC

570 Lausch Lane, Suite 200

Lancaster, PA 17601-3057

 

ESTATE OF RUTH E. DUNDORE, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Cynthia L. Liskey, Co-Executor

494 Kutztown Road

Myerstown, PA 17067

 

Lynnea Pellissier, Co-Executor

206 Peach Avenue

Hershey, PA 17033

 

Susan Dundore, Co-Executor

490 Stracks Dam Road

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA, 17067

 

ESTATE OF GERALDINE J. BOHR, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrixes.

 

Lois M. Padilione, Deborah L. Lutz and Rosanne E. Lutz, Co-Executrixes

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF DOROTHY B. LASHINSKY, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.


Mary A. Lashinsky, Executrix

William G. Fenwick, Jr., Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF SUZANNE M. SHANKROFF, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.


Benjamin B. Shankroff, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF AMELIA R. GALBRAITH, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration, c.t.a. have been granted to the undersigned Administrator.

 

  1. Kenneth Carpenter, Jr., Administrator, c.t.a.

108 Sandra Drive

Lebanon, PA 17046

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA, 17067

 

ESTATE OF GARY E. LOY, late of Swatara Township, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Michael K. Loy, Co-Executor

Kelly A. Loy, Co-Executor

 

Gerald J. Brinser, Esquire

  1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF ALLEN A. MILLER, late of North Londonderry Township, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

Nathan S. Shearer, Co-Executor

Katherine E. Shearer, Co-Executor

 

Gerald J. Brinser, Esquire

  1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF DONNA J. ZIMA, A/K/A DONNA JEAN ZIMA, A/K/A DONNA ZIMA, late of South Londonderry Township, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

Joshua D. Zima, Co-Executor

Tracy V. M. Deck, Co-Executor

 

Keith D. Wagner, Esquire

  1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF ROBERT P. YOKLISCH, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters of Administration, c.t.a. have been granted to the undersigned Administrator.

 

Paul A. Lundberg, Administrator, c.t.a.

 

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

SECOND PUBLICATION

 

ESTATE OF ELIZABETH M. PHILLIPS, late of StoneRidge Poplar Run, 440 E. Lincoln Ave., Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.


Ms. Mary S. Strickler, Executor

107 N. Elm St.

Wernersville, PA 19565

 

Robert R. Kreitz, Esquire

Kreitz | Gallen-Schutt

1210 Broadcasting Road, Suite 103

Wyomissing, PA 19610

 

ESTATE OF PAULINE F. MANWILLER, late of No. 12 Brookside Circle, Township of Jackson, Lebanon County, Pennsylvania, Deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

Linda L. Manwiller, Co-Executor

12 Brookside Circle

Myerstown, PA 17067

 

Larry L. Manwiller, Co-Executor

3995 Conrad Weiser Parkway

Womelsdorf, PA 19567

 

Jonathan B. Batdorf, Esquire

317 East Lancaster Avenue

Shillington, PA 19607

 

ESTATE OF DOLORES A. MILLER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

Michael R. Miller, Co-Executor

Thomas W. Miller, Co-Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF DEBORAH A. KENEAGY A/K/A DEBORAH ANN KENEAGY, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.


Tyler S. Keneagy, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF FRANKLIN D. BOHR, A/K/A FRANKLIN DELANO ROOSEVELT BOHR, late of the Union Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Linda Mease, Executrix

 

Caleb J. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF KATIE M. MARTIN, late of the North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Patricia M. McPoyle, Executrix

 

Gerald J. Brinser, Esquire

  1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF ALBERTA M. SIMPSON, late of Myerstown Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Jeffrey S. Simpson

429 Royers Road

Myerstown, PA 17067

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF WALTER G. MCANNEY, JR., late of Mount Gretna, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Gillian M. Hewitt, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF MIRIAM M. PATRICK, late of North Londonderry Township, Lebanon County, Pennsylvania, died 11/27/2020. Letters Testamentary have been granted to the undersigned Executor.

Ferlin E. Patrick, Executor

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF JOANNE M. STROHM, late of North Londonderry Township, Lebanon County, Pennsylvania, died 10/28/2020. Letters Testamentary have been granted to the undersigned Executrix.

Kathleen M. Leo, Executrix

 

George W. Porter, Esquire

909 E. Chocolate Ave.

Hershey, PA 17033

 

ESTATE OF ROBERT T. WIERINGA, JR., late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Eric R. Wieringa, Executor

4096 Silver Valley Drive

Lake Orion, Michigan 48359

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

Attorney

 

ESTATE OF RODNEY L. KELLER, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Megan N. Warner, Administrator

 

Jessica Fisher Greene, Esquire

Walters & Galloway, PLLC

39 West Main Street, Mechanicsburg PA 17055

 

ESTATE OF JUNE L. MOONSHINE, late of the North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Janine M. Patrick, Executrix

 

Keith D. Wagner, Esquire

  1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF JACOB R. STOLTZFUS, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Elam G. Stoltzfus, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

THIRD PUBLICATION

 

ESTATE OF STANLEY J. LIENTI, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Robert S. Lienti, Executor

216 Beta Circle

Wernersville, PA 19565

 

Elizabeth Roberts Fiorini, Esquire

Fiorini Law, P.C.

1150 West Penn Avenue

Womelsdorf, PA 19567

 

ESTATE OF EDWARD C. MILLER, A/K/A EDWARD CLAUDE MILLER, late of Swatara Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Frederick David Miller, Executor

 

Charles A. Ritchie, Jr., Esquire

Feather and Feather, P.C.

22 West Main Street

Annville, PA 17003

ATTORNEY

 

ESTATE OF ELIZABETH M. STREICHER A/K/A BETTY MARGARET STREICHER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Kathy S. Bentz, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF ROBERT E. SHAFFER, late of Pine Grove, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

Christian Ellis Shaffer, Executor

Laura Jean Henton, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF BARBARA H. ZUCK A/K/A BARBARA R. ZUCK, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

  1. Norman Zuck, Executor

444 Schaeffer Road

Lebanon, PA 17042

 

Patrick M. Reb, Esquire

547 South 10th Street

Lebanon, PA 17042

 

ESTATE OF MAE I. DONOUGH, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

Kenneth R. and Jaqueline Sholl, Executors

945 Schubert Road

Bethel, PA 19507

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF VANESSA S. BROWN, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Jay H. Brown, Executor

630 King Street

Lebanon , PA 17042

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA 17067

 

ESTATE OF JOSEPH D. DUNLAP, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Mariellen Lantz, Executor

315 S. Lincoln Avenue

Lebanon , PA 17042

 

Donna Long Brightbill, Attorney

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF JERRY R. NAFZINGER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Ken A. Nafzinger, Administrator

524 Jonestown Road

Jonestown, PA 17038

 

Andrew S. Withers, Esquire

Etzweiler and Withers, LLC

105 N. Front Street

Harrisburg, PA 17101

(717) 234-5600

 

FICTITIOUS NAMES

 

NOTICE IS HEREBY GIVEN, pursuant to the provisions of the Fictitious Names Act (54 Pa. C.S. §311 and §312) and its amendments, that on February 01, 2021, Jordan Fancovic of 416 South Railroad Street, Myerstown, PA 17067 and the sole member of Jordan Leigh LLC filed in the Office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, Pennsylvania, an amendment to its existing fictitious name Natural Being Wellness. Jordan Leigh LLC shall continue to conduct business in Lebanon County, Pennsylvania, under the amended fictitious name Jordan Leigh Wellness with its principal place of business at 416 South Railroad Street, Myerstown, PA 17067.

 

Hilary J. Sumner, Esquire

752 Willow Street, Suite B

Lebanon, PA 17046

NOTICE IS HEREBY GIVEN, pursuant to the provisions of the Fictitious Names Act (54 Pa. C.S. §311 and §312) and its amendments, that on February 01, 2021, Jordan Fancovic of 416 South Railroad Street, Myerstown, PA 17067 and the sole member of Jordan Leigh LLC filed in the Office of the Secretary of the Commonwealth of Pennsylvania, at Harrisburg, Pennsylvania, an amendment to its existing fictitious name Natural Being Photography. Jordan Leigh LLC shall continue to conduct business in Lebanon County, Pennsylvania, under the amended fictitious name Jordan Leigh Photography with its principal place of business at 416 South Railroad Street, Myerstown, PA 17067.

 

Hilary J. Sumner, Esquire

752 Willow Street, Suite B

Lebanon, PA 17046

 

 

 

 

JUDGES OPINION

 

Commonwealth of Pennsylvania v. Ana Trinidad-Sanchez

 

Criminal Action-Law-Retail Theft-Hearsay-Spanish Speaking Declarant-Qualification of Interpreter-Statements in Representative Capacity-Statements Against Interest-Sufficiency of the Evidence-Weight of the Evidence

 

Defendant was convicted of one (1) count of Retail Theft graded as a first degree misdemeanor following a trial by jury for failing to pay for various items while using a self check register at Walmart.  Defendant was sentenced to six (6) months’ probation.  Defendant filed an appeal to the Pennsylvania Superior Court, asserting that the Court erred in permitting the Commonwealth to introduce hearsay evidence that the claimant answered affirmatively through a non-certified Spanish speaking employee of Walmart regarding whether she knew why she had been detained when attempting to leave the store.  Defendant also challenged the sufficiency and the weight of the evidence supporting her conviction.

 

  1. A non-English speaking defendant is not presumptively prejudiced by the assignment of law enforcement to act as an interpreter.

 

  1. A contention that an interpreter was biased, prejudiced or unfair toward the affected non-English speaking defendant must be borne out by the record.

 

  1. Pa.R.E. Rule 803(25) provides that a person’s statements made in a representative capacity are admissible as evidence.

 

  1. Pa.R.E. Rule 804(b)(3)(B) provides that a person’s statements against his or her interest are admissible in a criminal matter.

 

  1. In light of the fact that the record establishes that the Spanish speaking employee of Walmart acted as Defendant’s agent or language conduit in communication between Defendant and Walmart’s asset protection assistant manager, Defendant did not object to the interpretation by the Spanish speaking employee, Defendant introduced an exhibit at trial containing a verbal admission and Defendant failed to identify any motive of the employee interpreter to mislead or to distort what Defendant said to her, the Court committed no error in permitting admission of her utterance as interpreted by the Spanish speaking interpreter employee.

 

  1. The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, there is sufficient evidence to enable the trier of fact to find every element of the crime charged beyond a reasonable doubt.

 

  1. Viewing the evidence in the light most favorable to the Commonwealth, the record establishes more than sufficient evidence sustaining the claimant’s conviction where Walmart employees testified that Defendant attempted to leave the store without paying for unscanned merchandise, surveillance footage portrayed Defendant bagging and attempting to remove items from the store without scanning or paying for them and evidence was presented to establish the value of items Defendant attempted to remove from the store without payment.

 

  1. Pa.R.Crim.P. Rule 607 requires that challenges to the weight of the evidence be raised before the trial judge in order for the issue to be preserved upon appeal.

 

  1. Defendant waived the challenge to the weight of the evidence on appeal by failing to present her challenge before the or in a post sentence motion.

 

L.C.C.C.P. No. CP-38-CR-0001041-2019, Opinion by John C. Tylwalk, President Judge, August 28, 2020.

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA           :           NO. CP-38-CR-1041-2019

:

  1. :

:

ANA TRINIDAD-SANCHEZ                                    :

 

ORDER OF COURT

 

AND NOW, to wit, this 28th day of August, 2020, it appearing to the Court that the Defendant has filed an appeal of our Order of June 3, 2020, the Clerk of Courts of Lebanon County is directed to transmit the record of this case, together with this Order and accompanying Opinion, to the Pennsylvania Superior Court for its review, pursuant to the requirements of Pa.R.A.P. 1931.

BY THE COURT:

 

                                                                                    _________________________, P.J.

                                                                                    JOHN C. TYLWALK

 

JCT/jah

 

Cc:  District Attorney

       Matthew Kopecki, Esquire

       Leslie Fillak/Court Administration

       Judith Huber, Esquire/Law Clerk

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF PENNSYLVANIA           :           NO. CP-38-CR-1041-2019

:

  1. :

:

ANA TRINIDAD-SANCHEZ                                    :

 

APPEARANCES:

 

PATRICK DONOVAN, ESQUIRE                          FOR THE COMMONWEALTH

ASSISTANT DISTRICT ATTORNEY

 

MATTHEW KOPECKI, ESQUIRE                          FOR ANA TRINIDAD-SANCHEZ

BENTLEY , GIBSON, KOPECKI,

   SMITH, P.C.

 

OPINION, TYLWALK, P.J., AUGUST 28, 2020.

 

After a jury trial was conducted on February 25, 2020, Defendant was found guilty of one count of Retail Theft, a first-degree misdemeanor, 18 Pa.C.S.A. §3929(a)(1), for an incident that occurred at the Walmart in North Lebanon Township, Lebanon County on May 26, 2019.  On June 3, 2020, we sentenced her to six months’ probation and a fine of $100.00.  She has filed an appeal to the Superior Court of Pennsylvania contending that the Court erred in permitting the Commonwealth to introduce hearsay evidence and challenging the sufficiency and weight of the evidence.

The evidence adduced at the jury trial indicated that on May 26, 2019, at approximately 9:00 p.m., Defendant was at the Walmart store, a retail establishment, in North Lebanon Township with her adult daughter, Jatnna Nolasco, and her seventeen-year-old son.  After completing their shopping, the three brought two shopping carts to the self-checkout section.  The self-checkout was described by Jarrod Anderson, an asset protection assistant manager at the time of the incident, as a “bullpen” or a square which contained eleven self-checkout registers, with one way in and one way out.  The area is attended by associates who observe the registers at the entrance and exit.

There are two systems in place which allow the associates to monitor customers’ activities at each register.  (N.T. at 10)  The first is called a pay station.  It is the size of a television and shows in real time what the customers scan and pay for at each register.  (N.T. at 10)  The other is a cellphone app called Upfrontos which enables the associate to see in real time what is passed over at each register.  (N.T. at 10)

Anderson explained that at the time of the incident, he was standing approximately six feet away from the register being used by Defendant and Nolasco.   (N.T. at 7)  Nolasco was standing in front of Defendant with the first shopping cart and Defendant was standing behind her with the second cart.  He first observed Nolasco scan three bunches of bananas which she had removed from the first cart.  She then placed the bananas into a bag in the bagging area along with a number of empty shopping bags.  Anderson observed Defendant walk over to the bagging area, remove the bag of bananas and take it to the second shopping cart.  She then removed the empty bags, and placed items from the second cart into the empty bags without first removing them from the cart or having them scanned.  (N.T. at 8)  Defendant tied the bags off as she finished filling them with the unscanned items.  Anderson also observed Nolasco pass a number of items over the register and place them into the bagging area without actually scanning them.  Nolasco paid for the items which were scanned by splitting up the payments between two debit cards.  She did not pay for the unscanned items.

The group then attempted to leave the store.  They were stopped in the store vestibule after they left the self-checkout area and had passed all points of purchase.  Anderson recalled that Defendant did not offer to pay for the items when they were taken to the front office.  At that point, Anderson found that Defendant spoke only Spanish and had a Spanish-speaking customer service representative translate for him.  (N.T. at 20)  When he asked Defendant whether she knew why she had been taken to the office, Anderson was told by the translator that Defendant had responded “yes.”  (N.T. 20-22)

When asked about the interpreter on cross-examination, Anderson acknowledged that the employee who translated Defendant’s comments was an employee who happened to speak Spanish and was not a trained interpreter.  (N.T. at 36)[1]  Defendant offered into evidence a recorded narrative of the incident which was produced through a computer program called “Apis.”[2]  This report did not recount the exact conversation between Anderson and Defendant, but indicated that Defendant had made a verbal admission regarding the theft.  (Exhibit “4;” N.T. at 33-34)   Anderson acknowledged that the report contained no information about the substance of the verbal “admission.”  (N.T. at 35)

During Anderson’s testimony, the Commonwealth showed a CCTV video recording of the incident which showed Defendant, Nolasco and Defendant’s son at the self-checkout register on May 26, 2019. (Exhibit “1”)  In the footage, Defendant can be seen removing the bag of bananas from the bagging area and removing the empty bags from that bag in the second cart.  She then proceeds to bag items in the second cart without removing them from the cart or scanning them with the handheld scanner.  She continued to bag multiple items which had not been scanned, tying off the bags when they were full, for several additional minutes before the group left the self- checkout area.

Next, the Commonwealth presented the testimony of Courtney Lemin, an asset protection manager at Walmart.  Lemin was also monitoring the self-checkout registers at the time of this incident.  Lemin testified that she observed Nolasco running items over the scanner with the barcodes covered by her hands so that they did not scan.  She also observed Nolasco give empty bags to Defendant who then placed grocery and apparel items into the shopping bags without bringing them anywhere near the register.  (N.T. at 38-39)   In her experience as a loss prevention officer, she recognized  these techniques to be consistent with attempts to avoid payment.

Lemin explained that she accompanied Anderson when the group was stopped in the vestibule and was able to compare the sales receipt with the items in their cart.  Lemin identified a training receipt (Exhibit “2”) which was produced when the customer service manager scanned the unpaid items in Defendant’s cart.  (N.T. 41)   The receipt indicated 78 unscanned items which totaled $461.89.  Exhibit “3,” a receipt for the paid-for items, indicated that the group paid $127.16, divided between two debit cards, for the 33 items which had been scanned.

Defendant’s son, who was with Defendant and Nolasco at the time of this incident, testified that his mother does not speak English, that the family grew up in the Dominican Republic, having only been in the United States for a short period of time, and that his mother needs the help of family members when shopping and dealing with computers and technology.  (N.T. at 52-53)  He explained that in the Dominican Republic, there are no self-checkout registers in grocery stores and that checkout and payment are facilitated by a store employee. (N.T. at 51)  He was not aware of any plan to commit a theft during this shopping trip. (N.T. at 53)

Defendant testified that she believed that Nolasco was scanning all the items and that she thought that her daughter had paid for everything in the grocery carts.   (N.T. at 60)  She explained that they had a large household of eight people and that they were purchasing multiples of various articles due to their household size.  (N.T. at 58)  She explained that she and Nolasco split the costs for their household, that she had money on her card to pay for items that day, and that she had given her daughter her card to pay for some of the items.  (N.T. at 64)  She did not know how much she paid that day because Nolasco had used her card to make the payment.

Defendant testified that she did not remove items from the cart because they had multiples of the same item and she thought that her daughter scanned one item the appropriate number of times.  (N.T. at 60)  She did whatever her daughter told her to do and insisted that she had no idea that Nolasco was committing a crime.  It was only after the incident that she learned that her daughter was not scanning the items sufficient times to reflect the number of the articles they actually had in the cart.  (N.T. at 61)  When asked on cross-examination about clothing items that were never removed from the cart, Defendant stated that her daughter told her they had already been scanned.  (N.T. at 68)

Defendant explained that her daughter told her that they were being taken to the office because there were some articles that were not paid for and that she pulled out her card and offered to pay for them when she learned that some were missing from the receipt; however, the store would not take the payment from her at that time.  (N.T. at 62)  She insisted that no one from the store asked whether she understood why they were taken to the office and that she did not understand that they were being accused of committing a crime until the police arrived and her daughter explained the situation to her.  (N.T. at 62, 65)  At that point, her daughter admitted to committing the theft; however, Defendant was not given an opportunity to explain her side of the story to the store associates or the police.

On recross-examination, Defendant acknowledged that everything listed on the receipt for items that had been scanned and paid for were food items, while the unscanned items also included multiple articles of clothing and some candles.  (N.T. at 67-68)  Defendant admitted that she did not see Nolasco scan any clothing items.  However, she insisted that she did not actually take notice that Nolasco was not scanning the clothing and that Nolasco told her they had been scanned when she bagged them. (N.T. at 68)

Finally, the defense presented Nolasco’s testimony.  Nolasco testified that she lives with Defendant and her two brothers along with her own two children and their father.  She moved to Lebanon from the Dominican Republic in 2009 and Defendant moved in with her when she came to the United States in 2016.  She explained that her family always gets two shopping carts at Walmart due to the size of their household and that she and her mother split the expenses in half when they shop for groceries and other items.  Nolasco explained that she always runs the scanner when they shop at Wal Mart and that Defendant always stands behind her and bags items when Nolasco instructs her to do so.

She admitted that on the date of this incident, as she passed the items from their carts over the scanner, some of the items did not register.  She handed these items to her mother to be bagged and told her that they had been scanned with a code or with similar items.  She told her that she had paid for all of the items.  She further admitted that she did not pay for all the bagged items and knew that she was committing a crime.  She insisted that she acted alone and her mother did not know of her plan.  When they were stopped on the way out of the store, her mother asked why they were being stopped.  Nolasco told her that they had some items that did not get passed through the scanner.  She did not tell Defendant that she had committed a crime until they were placed in handcuffs by the police.

Hearsay Evidence

In her Concise Statement of Matters Complaint of on Appeal, Defendant first asserts that we erred in permitting the Commonwealth to present hearsay testimony of Defendant’s alleged admission to the crime.  As noted earlier, Anderson was permitted to testify, over objection, that when he learned that Defendant did not speak English, he had the Walmart customer service representative ask whether she knew why she had been taken to the office and that Defendant had given the translator an affirmative response which was then related to Anderson.  On cross-examination, Anderson acknowledged that although the customer service representative was Spanish-speaking, she was not a certified interpreter.  The individual who translated this exchange between Anderson and Defendant did not appear to testify at the jury trial.

We have located little Pennsylvania precedent involving the issue of whether a witness may testify as to a statement made by a suspect through an interpreter or whether such testimony constitutes inadmissible hearsay.  In Commonwealth v. Pava, 112 A. 103 (Pa. 1920), the Pennsylvania Supreme Court affirmed the defendant’s conviction for murder, noting that the action of the trial judge in permitting a witness to testify to the admissions made in his presence by the defendant through an interpreter was error.  The specific circumstances under which the translation was rendered were not discussed in the Court’s opinion.  The court further held that since the testimony was a mere repetition of that of the interpreter himself, its admission under the circumstances was not sufficient cause for a reversal.

Other jurisdictions dealing with this issue have reached various results, usually dependent on the circumstances of each particular case.

…[A]n out-of-court translation of a non-English speaker’s statements to a third party usually constitutes hearsay because the interpreter’s translation constitutes an assertion of the English meaning of the original statement, but the jurisdictions are divided on the admissibility of the testimony given as a result of the information obtained by the use of interpreters. For example, in State v. Montoya-Franco, 250 Or. App. 665, 282 P.3d 939, 97 A.L.R.6th 817 (2012), review denied, 352 Or. 666, 293 P.3d 1045 (2012), the statements made in Spanish by the defendant to an English-speaking police officer, via a translator, were admissible under a residual exception to the hearsay rule.[3] Other cases have reached contrary results depending upon the circumstances presented and the varying rules applied by the courts.

 

97 A.L.R. 6th 567 (2014).

Under the Federal Rules of Evidence, such testimony may be admissible as an admission by a party-opponent:

Although hearsay testimony generally is excluded under the Federal Rules of Evidence, Rule 801(d) provides that certain admissions by a party–opponent are not hearsay. The rule includes out–of–court declarations made by an individual authorized to speak for the party–opponent (Rule 801(d)(2)(C)), serving as the party–opponent’s agent (Rule 801(d)(2)(D)), and statements by an individual. Where, as in United States v Nazemian (1991, CA9 Cal) 948 F2d 522, 91 CDOS 8383, 91 Daily Journal DAR 12903, 34 Fed Rules Evid Serv 188, 121 ALR Fed 809, testimony is offered as to statements made by a party–opponent in a language the witness could not understand, translated by a third person into a language understood by the witness, courts have admitted testimony as to the translated statements on the theory that the third person interpreting the statements acted as the party–opponent’s agent or was otherwise authorized to speak for him.

 

121 A.L.R. Fed 611 (Originally published in 1994). Other courts allowing such evidence have applied the “language conduit rule” where, absent a motive to mislead or distort, or some other indication of inaccuracy, when persons speaking different languages rely upon a translator as a conduit for their communication, the statements of the translator should be regarded as the statements  of the persons themselves without creating an additional layer of hearsay.  97 A.L.R. 6th, Section (B)(5).

At trial, Defendant pointed out that the Walmart customer service representative was not a trained interpreter and was a Walmart employee.  In Commonwealth v. Carrillo, 465 A.2d 1256 (Pa. Super. 1983), the Pennsylvania Superior Court dealt with the issue of whether the failure to appoint an official disinterested interpreter during interrogation was a violation of the defendant’s due process rights.  In that case, a policeman who was not a certified interpreter, acted as an interpreter when the defendant confessed to having shot the victim at the police station.  At his trial, the interrogating homicide detective was permitted to testify to the police officer’s translation of the confession.  The defendant filed a Post Conviction Hearing Act Petition (“PCHA”),[4] charging ineffective assistance of counsel as issues regarding the interpreter had been waived in the appeal.  The defendant complained that he had not been provided with an interpreter who was trained, experienced and impartial and that the use of the policeman as an interpreter during his interrogation was improper.[5]  In determining that this issue was without merit, the PCHA Court did not address any hearsay issues, but noted that “[w]hatever problems there may be with the testimony of [an interpreter], go to the sufficiency of the evidence.”  Id., citing Soap v. Carter, 632 F.2d 872 (874-75 (10th Cir. 1980), cert. denied 451 U.S. 939 (1981).

… [W]e are of the mind that a contention that an interpreter was biased, prejudiced or unfair toward the affected non-English-speaking defendant must be borne out by the record. See Wainwright v. LaSalle, 414 F.2d 1235 (5th Cir.1969); Lujan v. United States, supra; LaCount v. State, supra; People v. Torres, supra; People v. Murphy, 276 Ill. 304, 114 N.E. 609 (1916); State v. Banusik, 84 N.J.L. 640, 64 A. 994 (1906); see also Chee v. United States, supra; State v. Coria, supra; but see Gonzales v. State, 372 A.2d 191 (Del.Supr.1977); People v. Gutierrez, 137 Cal.App.3d 542, 187 Cal.Rptr. 130 (1982) (Staniforth, J., Concurring Opinion). Thus, having ruled that a non-English-speaking defendant is not presumptively prejudiced by the assignment of a police officer to act as his interpreter, appellant has failed to satisfy the first prong (arguably meritorious claim) of the ineffectiveness test. A fortiori, counsel will not be deemed inept so as to warrant appellant the relief of a new trial.

 

Even assuming, arguendo, that it was error for the suppression court to hold that no impropriety occurred by the assignment of a police officer to act as appellant’s interpreter at the interrogation, we conclude that it was harmless at best.

 

Commonwealth v. Carrillo, 465 A.2d at 1264-65.  The court noted that there was sufficient evidence to support the conviction and further noted the problems that a delay in questioning a suspect would present if official interpreters were required in all instances.

Pursuant to the Pennsylvania Rules of Evidence, a person’s statements made in a representative capacity are admissible as evidence.   Pa.R.E. 803(25).  In addition, a person’s statements against interest in a criminal matter are admissible.  Pa.R.E. 804(b)(3)(B).  Under the circumstances of this particular incident, we permitted the Commonwealth to introduce Anderson’s testimony of the translation provided by the customer services representative because that individual acted as Defendant’s agent or a language conduit between Anderson and Defendant.  Defendant did not object to having the customer service representative translate for her at the time of the incident.  Defendant herself introduced Exhibit “4” which indicated her “verbal” admission.    Also, as in Carrillo, Defendant has failed to identify any motive on the part of that individual to have been misleading or to otherwise distort what Defendant said to her.

Moreover, we believe that even if this evidence was improperly admitted, no relief would be warranted.  The Commonwealth produced ample evidence of Defendant’s guilt through the observations of Anderson and Lemin, the video footage, and the exhibits without reference to the admissions related by the individual who translated Defendant’s statements at Walmart.

Sufficiency of Evidence

In assessing claims challenging the sufficiency of the evidence, the following standard is applicable:

 

The test of the sufficiency of the evidence in a criminal case is whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth’s favor, there is sufficient evidence to enable the trier of fact to find every element of the (crime) charged beyond a reasonable doubt.

Commonwealth v. Hlatky, 626 A.2d 581 (Pa. Super. 1993).  The trier of fact, in this case the jury, is entitled to believe, all, part, or none of the evidence adduced at trial. Commonwealth v. DaSilva, 655 A.2d 568, 574 (Pa.Super.1995).  Moreover, it is within the province of the trier of fact to determine the weight to be given each witness’ testimony. Commonwealth v. Molinaro,  631 A.2d 1040, 1042 (Pa.Super.1993).

The Crimes Code, at Section 3929(a)(1), defines the offense of Retail Theft as follows:

  • 3929. Retail theft
  • Offense defined.–A person is guilty of a retail theft if he:

 

  • 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.A. §3929(a)(1).  This offense is graded as a misdemeanor of the first degree when the offense is a first or second offense and the value of the merchandise is $150 or more.  18 Pa.C.S.A. §3929(b)(iii).

Viewing the evidence in the light most favorable to the Commonwealth as the verdict winner, we believe there was sufficient evidence to support the jury’s verdict.  The testimony of Anderson and Lemin established that Defendant bagged multiple items which had not been scanned, tied off those bags, and attempted to leave the store with those items without making payment for the unscanned merchandise.  On the surveillance footage, she can be seen taking the empty grocery bags from the bag of bananas and filling them with the unscanned merchandise without removing the merchandise from the cart or making any attempt to have the items scanned.  Comparison of the two receipts indicated that the unscanned items totaled $461.89, well over the $150 threshold of Subsection (b)(iii) as set forth in the statute.   Even without consideration of Defendant’s admissions, there was overwhelming evidence to establish all elements of this offense.

Weight of the Evidence

In her Concise Statement, Defendant also charges that the jury’s verdict was against the weight of the evidence.  Pursuant to Pa.R.Crim.P. 607, challenges to the weight of the evidence must be raised with the trial judge via oral, written, or post-sentence motions in order for the issue to be preserved for appeal.  Pa.R.Crim.P. 607(A)(1)-(3).  The purpose of this rule is to make it clear that if this challenge is not raised with the trial judge, it is waived.  Pa.R.Crim.P. 607 – Comment.  Defendant did not raise this claim at any time before sentencing or by post-sentence motion, and has therefore failed to preserve the issue for appeal.   See, Commonwealth v. Filer, 846 A.2d 139 (Pa. Super. 2004), appeal denied 863 A.2d 1143 (Pa. 2004).

Moreover, even if Defendant’s right to pursue this argument had been preserved for appeal, we would find no basis for granting her relief.  The trial court, in the exercise of its discretion, may award a new trial on the basis that the verdict is against the weight of the evidence if the verdict is so contrary to the evidence as to shock one’s sense of justice. Commonwealth v. Washington, 825 A.2d 1264 (Pa. Super.2003).  The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses.  Commonwealth v. Hunter, 768 A.2d 1136 (Pa. Super. 2001), appeal denied 796 A.2d 979 (Pa. 2001).

The jury obviously found the Commonwealth’s evidence to be credible and did not accept Defendant’s version of the incident.  We were by no means shocked by its verdict in this case in view of the video evidence and testimony proffered by the Commonwealth and, had we been presented with this argument, would have found no justification for disturbing the jury’s verdict.

 

 

 

[1] The employee/translator did not testify at the jury trial.

[2] Anderson explained that “Apis” is a system for maintaining case records for retail asset protection.

 

 

[3] Pennsylvania has not adopted the “residual” exception to the hearsay rule.

[4] 19 P.S. 1180-1 et seq., as amended; reenacted as 42 Pa.C.S.A. 9541-9551.

[5] Although the Pennsylvania Supreme Court had upheld the conviction, it had declined to decide the propriety of the circumstances under which the inculpatory statement was secured and its admissibility at trial based on the defendant’s waiver of the issue on appeal.

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