Com. v. Wagner, B. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
BENJAMIN ALEXANDER WAGNER
Appellant No. 1121 MDA 2018
Appeal from the Judgment of Sentence Entered May 30, 2018
In the Court of Common Pleas of Berks County
Criminal Division at No.: CP-06-CR-0002269-2017
BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2019
Appellant Benjamin Alexander Wagner appeals from the May 30, 2018
judgment of sentence entered in the Court of Common Pleas of Berks County
(“trial court”), following his jury conviction for retail theft under Section
3929(a)(1) of the Crimes Code, 18 Pa.C.S.A. § 3929(a)(1). Upon review, we
affirm.
The facts and procedural history of this case are undisputed. Briefly, on
March 31, 2017, Officer Charles N. Miller, III, Spring Township Police
Department, charged Appellant with, inter alia, retail theft, accusing him of
stealing a pair of black Adidas CloudFoam Revival Sneakers, valued at $85.00,
from Kohl’s department store in Wyomissing, Pennsylvania. On April 11,
2018, the case proceeded to trial, following which a jury found Appellant guilty
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* Former Justice specially assigned to the Superior Court.
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of retail theft of merchandise of some value less than $150.00. On May 30,
2018, the trial court sentenced Appellant to eighteen to thirty-six months’
imprisonment followed by four years’ probation. On June 8, 2018, Appellant
filed post-sentence motions, asserting, among other things, that the verdict
was against the weight of the evidence. On June 12, 2018, the trial court
denied Appellant’s motion. Appellant timely to appealed to this Court. Both
the trial court and Appellant complied with Pa.R.A.P. 1925.
On appeal, Appellant raises two issues for our review.
I. Did the trial court err in denying the post-sentence motion
given that there was insufficient evidence to find [Appellant]
guilty of retail theft in light of the fact that the
Commonwealth witnesses who testified did not prove that
there was concealment and the video does not show a
concealment?
II. Did the trial court err in denying the post-sentence motion
given that the verdict was against the weight of the evidence
in light of the fact that the Commonwealth witnesses who
testified did not prove that there was concealment and the
video does not show a concealment?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
We first address Appellant’s argument that the evidence was insufficient
to sustain his conviction for retail theft because the Commonwealth failed to
establish concealment. Appellant’s Brief at 11. In support, Appellant argues
that the Commonwealth’s witness, Jared Martin, “never actually observed
Appellant conceal the shoes and never observed Appellant leave the store with
the shoes.” Id. at 12.
A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
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The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that the facts and circumstances established by
the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant’s guilt may be
resolved by the fact-finder unless the evidence is so weak and
inconclusive that as a matter of law no probability of fact may be
drawn from the combined circumstances. 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. Finally, the finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)
(emphasis added), appeal denied, 95 A.3d 275 (Pa. 2014).
Section 3929 of the Crimes Code, relating to retail theft, provides in
pertinent part:
(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[.]
....
(c) Presumptions.--Any person intentionally concealing
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 among the belongings of such person, shall be prima
facie evidence of intentional concealment, and, if such person
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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.
18 Pa.C.S.A. § 3929(a)(1), (c); see Commonwealth v. Martin, 446 A.2d
965, 968 (Pa. Super. 1982) (“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).”).
To the extent Appellant argues that Section 3929(c) requires the
Commonwealth to prove concealment as an element of retail theft, such
argument lacks merit. First, as the trial court and the Commonwealth point
out, Section 3929(c)’s presumption is not an element of retail theft under
Section 3929(a). This Court has stated that “intent can be proven by direct
or circumstantial evidence; it may be inferred from acts or conduct or from
the attendant circumstances.” Commonwealth v. Franklin, 69 A.3d 719,
723 (Pa. Super. 2013). Second, as the Commonwealth astutely notes,
Appellant “offers no precedential support for his claim that the presumption
found in [Section] 3929(c) operates as an additional element to the offense
of retail theft defined under [Section] 3929(a)(1).” Commonwealth’s Brief at
8. Indeed, no such support exists. Finally, our review of the record indicates
that the Commonwealth did not rely on the Section 3929(c) presumption in
prosecuting Appellant for retail theft. Rather, the Commonwealth proved
through circumstantial evidence that Appellant possessed the requite intent
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to deprive Kohl’s of the Adidas sneakers. The Commonwealth offered the
testimony of Mr. Martin at trial. As recounted by the trial court:
Jared Martin, who was working as a loss prevention supervisor for
Kohl’s Department Store on January 30, 2017, testified that on
that day he was monitoring the store for unusual activity. Mr.
Martin grew suspicious of Appellant because [Appellant] was
wearing a baggy jacket. Due to his suspicion, Mr. Martin returned
to his office and began to observe Appellant with the store’s
surveillance system. Mr. Martin saw Appellant go to the shoe
department, remove a pair of sneakers from a box, and then put
the box back onto the shelf. Mr. Martin subsequently walked to
the shoe department, opened the box, and confirmed that it was
empty.
Mr. Martin then followed Appellant, who had passed all
points of sale, outside the store, identified himself as a loss
prevention officer, and asked Appellant to come back into the
store. Mr. Martin told Appellant that if he did not come back into
the store, he would be forced to call the police. As soon as Mr.
Martin dialed 911, Appellant ran away in the direction of a
shopping center located on Peppermill Road in Wyomissing,
Pennsylvania.
Mr. Martin testified that he then wrote a report about the
incident that was introduced into evidence[.] . . . Mr. Martin also
testified that the merchandise that was stolen was a pair of Adidas
Neoblack/White Cloudfoam Revival Mid Size 10 shoes that had a
retail value of eighty-five dollars. Finally, Mr. Martin testified that
he burnt a copy of the surveillance video to a CD, which was
admitted into evidence[.]
Trial Court Opinion, 10/3/18, at 3-4 (record citations omitted).
Based on the foregoing evidence presented at trial, viewed in the light
most favorable to the Commonwealth, we agree with the trial court’s
conclusion that the Commonwealth proved the necessary elements of retail
theft. Thus, as the trial court explained: “Mr. Martin’s testimony, taken alone,
provided sufficient circumstantial evidence to support Appellant’s conviction.
The fact the jury was also was able to view a video of the incident only served
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to bolster his testimony.” Id. at 4. Accordingly, Appellant’s sufficiency claim
fails.
We next address Appellant’s contention that the verdict was against the
weight of the evidence. As this Court has explained:
On this issue, our role is not to consider the underlying question
of whether the verdict was against the weight of the evidence.
Rather, we are to decide if the trial court palpably abused its
discretion when ruling on the weight claim. When doing so, we
keep in mind that the initial determination regarding the weight
of the evidence was for the factfinder. The factfinder was free to
believe all, some or none of the evidence. Additionally, a court
must not reverse a verdict based on a weight claim unless that
verdict was so contrary to the evidence as to shock one’s sense of
justice.
Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007)
(internal citations omitted), appeal denied, 954 A.2d 575 (Pa. 2008). “[A]
trial court’s denial of a post-sentence motion ‘based on a weight of the
evidence claim is the least assailable of its rulings.’” Commonwealth v.
Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v.
Diggs, 949 A.2d 873, 880 (Pa. 2008)).
Appellant argues that the “the testimony of Officer Miller shows that the
weight of the evidence is heavily in favor of Appellant as the shoes recovered
from Appellant’s residence by the police pursuant to a search warrant were
size 13 and yet the shoes that were allegedly stolen by Appellant were size
10.” Appellant’s Brief at 14. Appellant claims that “the size of the shoes is
critical as Mr. Martin generated a report which seems to indicate that the
empty box was for “Adidas Neoblack/White CouldFoam Revival Mid Size 10.”
Id. (emphasis omitted).
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It is within the province of the jury to make credibility determinations
and this Court will not reweigh credibility determinations on appeal. “Conflicts
in the evidence and contradictions in the testimony of any witnesses are for
the fact finder to resolve.” Sanders, 42 A.3d at 331 (citing Commonwealth
v. Tharp, 830 A.2d 519, 528 (Pa. 2003)). “A jury decision to credit certain
evidence and reject other testimony is appropriate; therefore, the trial court
did not abuse its discretion in concluding that its sense of justice was not
shocked by the verdict.” Id.
Here, based upon our review of the record, as detailed above in
connection with Appellant’s sufficiency claim, we find no abuse of discretion
on the part of the trial court for concluding its sense of justice was not shocked
by the verdict. In particular, our review of the trial transcript reveals that the
defense called as its witness, Officer Miller, who only testified that, pursuant
to a search warrant, he located a pair of size 13 shoes, “roughly 11 months”
after the theft. N.T. Trial, 4/11/18, 85-86. No evidence was elicited at trial
to establish whether the discovery of the size 13 shoes in any was related to
the theft at issue.1 Thus, Appellant invites us to presume that because the
search warranted resulted in the discovery of size 13 shoes, he could not have
stolen the size 10 Adidas sneakers. We decline the invitation. As the trial
court noted, “the jury heard testimony from Mr. Martin and also viewed a
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1 Section 3929(c.1) provides that “[t]o the extent that there is other
competent evidence to substantiate the offense, the conviction shall not be
avoided because the prosecution cannot produce the stolen merchandise.” 18
Pa.C.S.A. § 3929(c.1).
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video of Appellant committing retail theft.” Trial Court Opinion, 10/3/18, at
6. Accordingly, Appellant’s second and final issue, therefore, fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/22/2019
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