Com. v. Salter, S. ( 2022 )

J-S36020-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SHARNIECE LASHAE SALTER :
:
Appellant : No. 336 WDA 2022
Appeal from the Judgment of Sentence Entered November 8, 2021
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0001030-2020
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: NOVEMBER 28, 2022
Appellant, Sharniece Lashae Salter, appeals nunc pro tunc from the
judgment of sentence entered in the Erie County Court of Common Pleas,
following her bench trial conviction for disorderly conduct (summary offense)
and jury trial conviction for retail theft.1 We affirm.
The relevant facts and procedural history of this case are as follows. On
April 26, 2020, Appellant and her cohorts entered a Walmart in Millcreek
Township. After shopping, Appellant proceeded to a self-checkout kiosk. Mark
Radomski, the store’s asset protection associate, noticed suspicious activity
at the kiosk. Specifically, Appellant was “bypassing the scanner” with certain
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 5503(a)(3) and 3929(a)(1), respectively.
J-S36020-22
items from her shopping cart. (N.T. Trial, 9/14/21, at 24).
Mr. Radomski attempted to stop Appellant at the store’s exit to ask her
about the items at issue. Appellant responded with “a hostile, aggressive,
vulgar reaction.” (Id. at 27). Appellant refused to go to the loss prevention
office with Mr. Radomski, and she exited the store. Mr. Radomski then called
the police. Millcreek Township Police Officer Jeffrey Keller responded to the
scene, where he encountered Appellant and her cohorts inside their vehicle in
the store’s parking lot. When Officer Keller approached the vehicle, Appellant
“immediately started yelling [and] using vulgar language, screaming that they
were doing nothing wrong[.]” (Id. at 57). Officer Keller asked Appellant to
calm down, but she refused to cooperate. Thereafter, Officer Keller spoke
with Mr. Radomski and viewed a surveillance video “where it clearly showed
items weren’t being scanned in the cart and that they were, in fact, being
stolen.” (Id. at 60).
On July 16, 2020, the Commonwealth filed a criminal information
charging Appellant with offenses related to the incident. Appellant proceeded
to trial, and a jury found her guilty of retail theft. The court also found
Appellant guilty of the summary offense of disorderly conduct. On November
8, 2021, the court sentenced Appellant to an aggregate term of thirty-six (36)
months of probation. Appellant timely filed a post-sentence motion on
November 9, 2021, which included a challenge to the weight of the evidence.
(See Post-Sentence Motion, filed 11/9/21, at ¶¶8-10). On November 10,
-2-
J-S36020-22
2021, the court denied the post-sentence motion. Appellant did not
immediately file a notice of appeal.
On March 16, 2022, Appellant requested reinstatement of her direct
appeal rights nunc pro tunc. The court granted Appellant’s request that same
day. Appellant timely filed a notice of appeal nunc pro tunc on March 22,
2022. On March 23, 2022, the court ordered Appellant to file a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. Appellant
timely filed her Rule 1925(b) statement on March 29, 2022.
Appellant now raises one issue for our review:
The jury’s verdict was against the weight of the evidence to
sustain Appellant’s convictions for retail theft and disorderly
conduct.
(Appellant’s Brief at 2).
On appeal, Appellant “argues that the [fact-finder’s] decision finding her
guilty of both of the charges in this case shocks the conscience.” (Id. at 6).
Appellant emphasizes that she attempted to scan items with the hand scanner
at the self-checkout kiosk, and she used the flat scanner when the hand
scanner did not work. Appellant asserts there was some confusion because
“there were three individuals with items shared in a cart attempting to check
out” at the kiosk. (Id. at 8). Complicating matters further, Appellant
contends that she “was in an electric motorized cart due to difficulty …
standing,” and she could not stand up to complete her purchase at the kiosk.
(Id.) Regarding her interaction with Mr. Radomski, Appellant maintains that
-3-
J-S36020-22
she cooperated, “requesting that she be allowed to go back and pay for the
item,” and she “vehemently argued that she did not take anything.” (Id.)
Further, Appellant argues that there were other people in the store who
directed vulgarities at Mr. Radomski. Appellant posits, however, that Mr.
Radomski caused all of the disorder by raising his voice when threatening to
have Appellant arrested. Considering Mr. Radomski’s tone, Appellant
maintains that “it would be natural for the accused individuals’ voices to also
be raised.” (Id. at 9). On this record, Appellant concludes that the trial court
should have granted relief on her challenge to the weight of the evidence
supporting her convictions. We disagree.
In reviewing a challenge to the weight of the evidence, our standard of
review is as follows:
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. An appellate court cannot substitute its
judgment for that of the finder of fact. Thus, we may
only reverse the … verdict if it is so contrary to the
evidence as to shock one’s sense of justice.
Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d
666, 672-73 (1999). Moreover, where the trial court has
ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the
verdict is against the weight of the evidence. Rather,
appellate review is limited to whether the trial court palpably
abused its discretion in ruling on the weight claim.
Commonwealth v. Champney, 574 Pa. 435, 444, 832 A.2d 403, 408
(2003), cert. denied, 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)
-4-
J-S36020-22
(most internal citations omitted).
The Crimes Code defines the offense of disorderly conduct, in relevant
part, as follows:
§ 5503. Disorderly conduct
(a) Offense defined.—A person is guilty of disorderly
conduct if, with intent to cause public inconvenience,
annoyance or alarm, or recklessly creating a risk thereof,
[s]he:
* * *
(3) uses obscene language, or makes an
obscene gesture[.]
18 Pa.C.S.A. § 5503(a)(3).
Our Supreme Court has cautioned that the offense of
disorderly conduct is not intended as a catchall for every act
which annoys or disturbs people and it is not to be used as
a dragnet for all the irritations which breed in the ferment
of a community. Rather, the offense of disorderly conduct
has the specific purpose … to preserve the public peace. The
cardinal feature of the crime of disorderly conduct is public
unruliness which can or does lead to tumult and disorder.
Commonwealth v. McConnell, 244 A.3d 44, 49 (Pa.Super. 2020) (internal
citations and quotation marks omitted).
The Crimes Code defines the offense of retail theft, in relevant part, as
follows:
§ 3929. Retail theft
(a) Offense defined.—A person is guilty of a retail
theft if [s]he:
(1) takes possession of, carries away, transfers
or causes to be carried away or transferred, any
-5-
J-S36020-22
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).
Instantly, the trial court evaluated the evidence and concluded that the
“verdicts do not shock one’s sense of justice.” (Trial Court Opinion, filed
6/22/22 at 10). In analyzing Appellant’s disorderly conduct conviction, the
court stated:
[T]he record amply establishes the requisite intent to cause
public inconvenience, annoyance or alarm or the reckless
creation of the risk thereof. The evidence established
Appellant yelled and used vulgarities inside the Walmart
store and/or its parking lot area, areas “affecting or likely to
affect persons” since they are areas to which the public or a
substantial group has access. Appellant admitted to
becoming upset, and using vulgarities directed at the
officer. The testimony of Radomski and the officer is in stark
contrast to Appellant’s claims. The [fact-finder was] free to
accept or reject the evidence introduced by the
Commonwealth.
(Id. at 7-8).
Regarding the offense of retail theft, the court noted:
Appellant’s actions in intentionally concealing unpurchased
property of Walmart, inside and/or outside the store and the
finding of the unpurchased merchandise concealed, upon
Appellant’s person or among her belongings, was prima
facie evidence of intentional concealment. Video
surveillance depicted items weren’t scanned at the self-
checkout counter. As to some of the merchandise for which
Appellant testified the scan gun didn’t “work,” Appellant was
unable to explain or recall how or if, in any way, she
addressed scanning those items to assure they appeared on
a receipt. Appellant attempted to muddle things by
-6-
J-S36020-22
explaining some items were for her and other items were
for her friend. Nonetheless, Appellant testified it was she
who was to pay for all her friend’s items because Appellant
owed the friend money. While it is clear some items were
properly scanned and rung up, it is clear that items totaling
a value of approximately $97.00 were not properly checked
out. When approached by loss prevention staff and given
the opportunity to rectify and sort things out, Appellant
became uncooperative, belligerent and vulgar, leading
Radomski to call the police. Appellant demonstrated similar
behaviors in the patrolman’s presence. The record defies
Appellant’s claims she was cooperative.
(Id. at 8).
Our review confirms the court’s characterization of the record, and we
cannot say that the court palpably abused its discretion in ruling on the weight
claim. See Champney, supra. The Commonwealth demonstrated that
Appellant disturbed the public peace by acting in an unruly manner, both
inside and outside of the store. See McConnell, supra. Contrary to
Appellant’s claims, the record also supports the finding that Appellant
possessed the requisite intent to deprive a merchant of the possession, use,
or benefit of merchandise without paying full retail price. See 18 Pa.C.S.A. §
3929(a)(1). Here, we decline Appellant’s invitation to substitute our judgment
for that of the fact-finder, and we conclude that Appellant is not entitled to
relief on her weight claim. See Champney, supra. Accordingly, we affirm
the judgment of sentence.
Judgment of sentence affirmed.
-7-
J-S36020-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2022
-8-