Com. v. Cantwell, R. ( 2016 )

J-S84040-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RAYMOND CHARLES CANTWELL, JR.
Appellant No. 1248 EDA 2016
Appeal from the Judgment of Sentence March 23, 2016
in the Court of Common Pleas of Bucks County Criminal Division
at No(s): CP-09-CR-0007644-2015
BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 16, 2016
Appellant, Raymond Charles Cantwell, Jr., appeals from the judgment
of sentence entered in the Bucks County Court of Common Pleas, following a
jury trial1 and his conviction for retail theft.2 Appellant contends the
evidence was insufficient to convict him of retail theft. We affirm.
The trial court summarized the facts of this case as follows:
On November 25, 2015, [Appellant] was observed on
video surveillance selecting several items from the shelves
of the Home Depot . . . by John Baran, the store’s head of
loss prevention. When he was first observed, [Appellant]
had an item identified as a “mailbox in a box” in his
shopping cart. [Appellant] was seen entering what was
identified as the “tool corral” of the store, the area where
*
Former Justice specially assigned to the Superior Court.
1
We note that the notes of testimony from the jury trial are erroneously
dated March 22, 2014.
2
18 Pa.C.S. § 3929(a)(1).
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the high-priced tools and related items are displayed.
[Appellant] selected two items, a Milwaukee brand power
tool valued at $79 and Milwaukee brand batteries for
power tools valued at $99, and placed them in his cart.
After observing what he believed to be suspicious
behavior, Mr. Baran then began to follow [Appellant] as he
moved around the store. In Aisle 12, [Appellant] selected
a thermostat from a shelf and placed it in his cart. He
then moved down Aisle 11 and proceeded to the garden
department. While there, [Appellant] took the Milwaukee
batteries from his cart and attempted to remove the
security sensor from the Milwaukee batteries. He was
unsuccessful. He then placed both of the Milwaukee
products that he had in his possession in his jacket, zipped
the jacket approximately three quarters of the way up and
moved into the greenhouse section of the garden
department. When Mr. Baran followed, [Appellant] walked
behind a large cart of plants, removed the items from his
jacket and placed them on the shelf among the plants. He
then proceeded to the cashier at the exit of the garden
department and paid for the mailbox in the box. The
thermostat that [Appellant] had previously placed in the
cart was no longer present and was never located. After
[Appellant] left the store, Mr. Baran identified himself and
asked [Appellant] to return to the store. [Appellant] was
initially confrontational and refused to comply. He then
attempted to flee on foot. Mr. Baran then retrieved the
two power tool items concealed in the greenhouse and
called the police. While Mr. Baran and [Appellant] waited
for the police to arrive, [Appellant] told Mr. Baran that he
never picked up any Milwaukee products. He later offered
to pay for those items.
Trial Ct. Op., 6/21/16, at 1-2 (footnotes omitted).
Appellant was sentenced to one to two years’ imprisonment. 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 issue for our review:
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A. 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 did
take possession of, carry away, transfer or cause to be
carried away or transferred, merchandise displayed, held
stored or offered for sale by Home Depot with the intention
of depriving the merchant of the possession, use or benefit
of such merchandise without paying full retail value.[3]
Appellant’s Brief at 4.
Appellant argues the evidence was insufficient to prove beyond a
reasonable doubt that he was guilty of retail theft because he lacked “the
requisite intent to deprive the merchant of any items.” Appellant’s Brief at
11.4 He avers the Commonwealth failed to establish that Appellant had “the
3
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).
4
We consider whether Appellant also challenges the weight of the evidence.
Appellant contends that “[t]he Commonwealth’s evidence presented through
the loss prevention employee is incredible and unbelievable.” Appellant’s
Brief at 13.
In Commonwealth v. DeJesus, 860 A.2d 102 (Pa. 2004), the
Pennsylvania Supreme Court opined:
The [a]ppellant’s claim challenges the weight, not the
sufficiency, of the evidence. The weight of the evidence is
exclusively for the finder of fact, which is free to believe
all, part, or none of the evidence, and to assess the
credibility of the witnesses. Questions concerning
inconsistent testimony . . . go to the credibility of the
witnesses. This Court cannot substitute its judgment for
that of the jury on issues of credibility.
Id. at 107 (citations omitted and emphases added). Instantly, Appellant
argues the testimony of the Commonwealth’s witness was not credible. See
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intent to permanently deprive the merchant of the value of the merchandise
concealed on his person.” Id. at 13.
“A claim challenging the sufficiency of the evidence is a question of
law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
As this case involves a question of law, our scope of
review is plenary. Our standard of review is de novo.
* * *
[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.
id. Appellant, however, failed to raise his weight claim before the trial
court; therefore, he has waived it on appeal. See Pa.R.Crim.P. 607(A);
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding
weight claim waived where the “[a]ppellant did not make a motion raising a
weight of the evidence claim before the trial court as the Pennsylvania Rules
of Criminal Procedure require”). Appellant did not raise a weight of the
evidence claim in his Rule 1925(b) statement, and thus, he waived the
claim. See Pa.R.A.P. 1925(b)(4)(vii) (holding “[i]ssues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.)
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Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)
(citations and quotation marks omitted). “The Commonwealth may sustain
its burden of proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence.” Commonwealth v. Caban,
60 A.3d 120, 132 (Pa. Super. 2012) (citation omitted).
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[5] 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). There is a presumption that
[a]ny person intentionally concealing[6] unpurchased
property of any store or other mercantile establishment,
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 within the
meaning of subsection (a), and the finding of such
unpurchased property concealed, upon the person or
5
Merchandise is defined as follows: “Any goods, chattels, foodstuffs or
wares of any type and description, regardless of the value thereof.” 18
Pa.C.S. § 3929(f).
6
The term conceal is statutorily defined as follows: “To conceal merchandise
so that, although there may be some notice of its presence, it is not visible
through ordinary observation.” Id.
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among the belongings of such person, shall be prima facie
evidence of intentional concealment, and, if such person
conceals, or causes to be concealed, such unpurchased
property, upon the person or among the belongings of
another, such fact shall also be prima facie evidence of
intentional concealment on the part of the person so
concealing such property.
Id. § 3929(c). “If a person conceals merchandise either in a store or
outside of it, without first having paid for it, it reasonably follows that he
intends to deprive the merchant of the item(s).” Commonwealth v.
Martin, 446 A.2d 965, 968 (Pa. Super. 1982).
In Commonwealth v. Jones, 528 A.2d 1360 (Pa. Super. 1987), this
Court found the defendant had the intent to deprive the merchant of certain
items. The Jones Court opined:
The evidence received at trial established that [the
defendant] concealed the unpurchased meat under his
coat. The Commonwealth’s witness testified that he
observed appellant picking up two or three pieces of meat
and that when he started following appellant down the
aisle, appellant had already “put the meat inside his coat
and his coat was maybe zipped halfway up.” The witness
then described appellant as having “a big bulge you could
see” under his coat. From this testimony, the trial court
could presume that appellant harbored the requisite intent.
Id. at 1362 (citations omitted). “Further, [f]light does indicate
consciousness of guilt, and a trial court may consider this as evidence, along
with other proof, from which guilt may be inferred.” Commonwealth v.
Dent, 837 A.2d 571, 576 (Pa. Super. 2003) (quotation marks and citation
omitted).
In the case sub judice, the trial court opined:
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Viewing all the evidence admitted at trial in the light
most favorable to the Commonwealth as verdict winner,
the evidence clearly established each element of the crime
of retail theft. . . . The property in question, the
Milwaukee power tool and batteries clearly constitute
“merchandise” within the meaning of the retail theft
statute. The evidence established that merchandise was
“offered for sale” at Home Depot, a retailer of home
improvement and construction products. The only
remaining element question is whether there was sufficient
evidence for the jury to conclude that [Appellant] intended
to deprive the store of its property without paying for it.
In meeting its burden of proof with regard to this element,
the Commonwealth is not required to show that the
merchandise was removed from the building or that
[Appellant] passed all points of sale. . . . [T]he intent to
deprive may be inferred from a defendant’s act of
concealing the property, either on his person or within the
store. Here, [Appellant] concealed items inside his jacket.
. . . The jury’s finding of intent was also supported by
evidence [Appellant] attempted to remove the security
sensor from one of the items, that he conceal[ed] both
items in another area of the store after store security
began to follow him and that, when confronted by store
security, he attempted to flee the scene.
Trial Ct. Op. at 4-5 (citations and footnotes omitted). We agree no relief is
due.
At trial, Mr. Baran, the store’s head of loss prevention, testified as
follows:
[The Commonwealth]: What does [Appellant] do when he
gets to Aisle 2, the garden department?
A: When he gets to Aisle 2, he stands between two
displays that are in the aisle in an attempt to conceal
himself and begins trying to remove the security sensor
from one of the Milwaukee items.
Q: And are you watching him do all this on the floor?
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A: Yes. I am at the opposite end of the aisle.
Q: Do you recall which item it was that he was trying to
remove the security item?
A: It was the batteries valued at $99.
* * *
Q: So basically what is the purpose of that security tag?
A: To prevent or deter theft.
* * *
Q: Was [Appellant] successful in trying to pull that off by
himself?
A: No, he was not.
Q: What did he do then?
A: Walked several more feet carrying both of the
Milwaukee products and concealed them in his jacket.
Q: Could you describe, what do you mean by that?
A: Basically place them inside his jacket, whether in a
pocket or something, and then zipped his coat up three
quarters of the way.
Q: And then what did you [sic] do from there?
A: Then he proceeds to the outside greenhouse of the
garden department.
* * *
Q: Is there anyone else outside of that greenhouse section
of the store when [Appellant] goes out there?
* * *
A: No, there was nobody else out there.
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* * *
Q: . . . What happened in the greenhouse section of the
store?
A: I followed him out . . . . I observed him walk behind a
large cart of plants . . . .
This cart is approximately 6 feet wide by about 7 feet
tall, full of plants. I observed him walk behind there, at
which time I came around to get a different angle so I
could see him, and then watched him remove the item
from his jacket and place it in the plants.
* * *
Q: From the place where [Appellant] placed the power
tools, about how much further is it towards a register, a
register?
A: . . . I would say approximately 30 feet, 35 feet. . . .
Q: And is that the exit out of the store, also?
A: Yes. That is one of the exits, yes, sir.
* * *
Q: . . . Did you confront [Appellant] outside of the store?
A: Yes. As he walked out of the garden gates . . . .
Q: What happened during that incident?
A: I walked in front of him, identified myself as loss
prevention, asked him to come back into the store. He
immediately became confrontational. Probably spent
maybe approximately ten seconds asking him repeatedly
to come back in the store. He refused, and then
attempted to run from me.
* * *
Q: Where did he try to go?
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A: He attempted to run to my right. I was able to grab
him by the jacket. We scuffed around, ended up falling to
the ground. And then with the assistance of two
customers I was able to handcuff him and then escort him
back into the store.
N.T., 3/22/16, at 76-81, 87-88.
Instantly, Appellant concealed merchandise on his person and in the
store which was sufficient evidence of his intent to deprive the merchant of
the items. See 18 Pa.C.S. § 3929(c); Jones, 528 A.2d at 1362; Martin,
446 A.2d at 968. Appellant attempted to flee which is indicative of
consciousness of guilt. See Dent, 837 A.2d at 576. Viewing the evidence in
the light most favorable to the Commonwealth as verdict winner, we find the
evidence was sufficient to convict Appellant of retail theft. See 18 Pa.C.S. §
3929(a)(1); Ratsamy, 934 A.2d at 1237; Caban, 60 A.3d at 132.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/16/2016
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