Com. v. Dunkle, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RUBEN JAMES DUNKLE :
:
Appellant : No. 839 WDA 2019
Appeal from the Judgment of Sentence Entered April 24, 2019,
in the Court of Common Pleas of Clarion County,
Criminal Division at No(s): CP-16-CR-0000365-2018.
BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 25, 2020
Ruben James Dunkle appeals from the judgment of sentence imposed
following his conviction of three counts of retail theft.1 Additionally, Dunkle’s
court-appointed counsel, Erich R. Spessard, Esquire, has filed a petition to
withdraw as counsel and an accompanying brief pursuant to Anders v.
California, 386 U.S. 738, 744 (1967) (hereinafter the “Anders Brief”). We
grant counsel’s petition, and affirm Dunkle’s judgment of sentence.
The facts underlying the instant appeal are as follows. On three
consecutive days, October 4, 5, and 6 of 2017, Dunkle went to a Walmart
store and selected expensive Lego products from the toy department. He then
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. 3929(a)(4).
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modified the bar codes on the products in a manner that caused them to
reflect a different Lego product with a much lower price. On each occasion,
he chose to use the self-checkout, where he could scan and pay for the items
without assistance from a store clerk. Walmart later detected an unexplained
reduction in inventory. It conducted an internal investigation which revealed
the underpayments by Dunkle. Police then charged Dunkle with three counts
of retail theft.
The matter proceeded to trial on March 29, 2019. The Commonwealth
presented the testimony of Walmart Asset Protection Officer Corey Becker,
who detailed his internal investigation following a report from the toy
department that several expensive Lego products were missing. Becker
introduced surveillance video footage from the three days in October of 2017.
The video surveillance on each day showed Dunkle follow the same routine.
He entered the store and went to the toy aisle. He left the toy aisle with
various expensive Lego products in his cart, then scanned and paid for these
items at the self-checkout.2 Becker also introduced the receipts from those
transactions, and explained that when Dunkle scanned the various expensive
Lego items at self-checkout, they all rang up as an entirely different, and
considerably less-expensive, Lego product namely, a Star Wars Lego Imperial
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2 The parties stipulated that Dunkle is the individual depicted in the
surveillance video footage. Additionally, Dunkle did not dispute the accuracy
of the transaction receipts.
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Trooper Battle Pack. See N.T. Trial, 3/29/19, at 39-64. Becker introduced a
photograph of that particular item, which depicted a Lego product far smaller
than the larger and more expensive Lego products Dunkle was seen
purchasing in the videos. Id. at 43. The Star Wars Lego Imperial Trooper
Battle Pack was valued at $11.97 (hereinafter the “$11.97 Lego kit”).
On October 4, 2017, the video showed Dunkle purchase three items: a
Star Wars BB-8 Lego Kit (retail price $95.00); a Star Wars Heavy Assault
Walker Lego Kit (retail price $149.95); and a Millennial Falcon Lego Kit (retail
price $119.00). Id. at 40-42, 51-53. This purchase should have totaled
$363.96. Id. at 54. However, Becker introduced the transaction receipt which
showed that Dunkle purchased three $11.97 Lego kits, and paid a total of
$35.91 with his credit card. Id. at 44-46. The difference between the retail
value of the items Dunkle actually purchased on October 4, 2017, and the
price he paid was $328.05. Id. at 54.
On October 5, 2017, the video showed Dunkle purchase four items: two
Millennial Falcon Lego Kits (retail price $119.00 each), and two Star Wars BB-
8 Lego Kits (retail price $95.00 each). Id. at 56. This purchase should have
totaled $428. Id. at 59. However, Becker introduced the transaction receipt
which showed that Dunkle purchased four $11.97 Lego kits, and paid a total
of $47.88 with his credit card. Id. at 55. The difference between the retail
value of the items Dunkle actually purchased on October 5, 2017, and the
price he paid was $380.12. Id. at 59.
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Finally, on October 6, 2017, the video showed Dunkle purchase six
items. Id. at 61-62. According to Becker, Dunkle paid the full retail price for
the first three items. Id. at 61. The last three items that Dunkle purchased
were two Star Wars Heavy Assault Walker Lego Kits (retail price $149.95
each), and one Millennial Falcon Lego Kit (retail price $119.00). Id. at 61-62.
The retail value of these three items totaled $418.92. Id. at 63. However,
Becker introduced the transaction receipt which showed that the last three
items scanned were the $11.97 Lego kits. Id. at 62. Dunkle paid total of
$35.91 for these three items. Id. at 63. The difference between the retail
value of the last three items Dunkle actually purchased on October 6, 2017,
and the price he paid was $383.01. Id.
Becker testified that, to his knowledge, there was no type of malfunction
with the self-checkout system on any of the dates in question. Id. Nor was
he aware of any problem with the bar codes placed on the more expensive
Lego products by the manufacturer. Id. at 64. He indicated that the only
way that the more expensive Lego items could have scanned as less expensive
Lego items was by placing a small Lego box bar code on the large Lego boxes.
Id.
Becker conceded on cross-examination that the surveillance videos did
not specifically show Dunkle modifying the bar codes. Id. at 109. Nor did the
video footage show any visible modifications to the bar codes on the scanned
items. Id. at 112. However, Becker explained on redirect that no security
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camera was directly aimed at the toy aisle, such that you “have to look over
part of [another] aisle to see the Lego aisle.” Id. at 188-19.
At the conclusion of trial, a jury convicted Dunkle of three counts of
retail theft. On April 29, 2019, the trial court sentenced him to an aggregate
term of thirty to ninety months in prison. Dunkle filed a timely post-sentence
motion, which the trial court denied. Dunkle then filed a timely notice of
appeal. Both Dunkle and the trial court complied with Pa.R.A.P. 1925. In this
Court, Dunkle’s counsel has filed petition to withdraw as counsel and an
Anders brief. Dunkle did not file a response to either the petition or the
Anders brief.
“When presented with an Anders brief, this Court may not review the
merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)
(citation omitted). Pursuant to Anders, when counsel believes an appeal is
frivolous and wishes to withdraw from representation, counsel must do the
following:
(1) petition the court for leave to withdraw stating that after
making a conscientious examination of the record, counsel has
determined the appeal would be frivolous; (2) file a brief referring
to any issues that might arguably support the appeal, but which
does not resemble a no-merit letter; and (3) furnish a copy of the
brief to the defendant and advise him of his right to retain new
counsel, proceed pro se, or raise any additional points he deems
worthy of this Court’s attention.
Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)
(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.
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2009), our Supreme Court addressed the second requirement of Anders, i.e.,
the contents of an Anders brief, and required that the brief:
(1) provide a summary of the procedural history and facts, with
citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders
requirements, it is then this Court’s responsibility “to conduct a simple review
of the record to ascertain if there appear on its face to be arguably meritorious
issues that counsel, intentionally or not, missed or misstated.”
Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).
Here, counsel has substantially complied with each of the requirements
of Anders. Counsel indicates that he conscientiously examined the record
and determined that an appeal would be frivolous. Further, the Anders brief
substantially comports with the requirements set forth by the Supreme Court
of Pennsylvania in Santiago. Finally, the record includes a copy of the letter
that counsel sent to Dunkle, advising him of his right to proceed pro se or
retain alternate counsel and file additional claims, and stating counsel’s
intention to seek permission to withdraw. Accordingly, counsel has complied
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with the procedural requirements for withdrawing from representation, and
we will conduct an independent review to determine whether Dunkle’s appeal
is wholly frivolous.
In the Anders Brief, counsel raises the following issue for our review:
“Did sufficient evidence exist to prove the case beyond a reasonable doubt?”
Anders Brief at 4.
Our standard of review of sufficiency claims is as follows:
[W]e evaluate the record in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. [T]he facts and circumstances established by the
Commonwealth need not be absolutely incompatible with the
defendant’s innocence. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations
and quotation marks omitted). The Commonwealth may sustain its burden of
proof by means of wholly circumstantial evidence, and the jury, which passes
upon the weight and credibility of each witness’s testimony, is free to believe
all, part, or none of the evidence. Commonwealth v. Jacoby, 170 A.3d
1065, 1078 (Pa. 2017).
The crime of retail theft is established when the Commonwealth
demonstrates that “[a] person . . . under-rings with the intention of depriving
the merchant of the full retail value of the merchandise.” 18 Pa.C.S.A. §
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3929(a)(4). “Under-ring” is defined as “[t]o cause the cash register or other
sales recording device to reflect less than the full retail value of the
merchandise.” Id. at § 3929(f). The “full retail value” is defined as “[t]he
merchant’s stated or advertised price of the merchandise.” Id.
In discussing Dunkle’s sufficiency challenge, counsel states that the
claim has arguable merit because there was no direct video evidence showing
him altering the bar codes, or showing that the bar codes on the merchandise
he purchased had been modified. Counsel additionally points out that there
was no evidence presented at trial regarding the accuracy or inaccuracy of the
self-checkout scanners at the time Dunkle made his purchases. For these
reasons. Dunkle asserts that the Commonwealth’s evidence amounted to
speculation or conjecture as to the elements of causation and intent to under-
ring.
Nevertheless, counsel indicates his belief that Dunkle’s insufficiency
claim is frivolous because (1) video surveillance footage shows that the
specific, more expensive Lego products were in Dunkle’s possession; (2)
receipts of the three sales transactions unequivocally show that the items
Dunkle purchased were scanned as though they were entirely different, less
expensive items; (3) Dunkle paid a price far less than the full retail value for
each item; and (4) the inability to see Dunkle for a length of time on the video
footage for each incident provided enough circumstantial evidence that he
modified the bar codes while he was out of view of the security cameras.
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Based on our review of the certified record,3 we conclude that the
evidence presented at trial, when viewed in the light most favorable to the
Commonwealth, was sufficient to support the jury’s finding that all elements
of the offense of retail theft were proven beyond a reasonable doubt. The
Commonwealth presented the testimony of Becker, who introduced the
surveillance video footage that showed Dunkle purchasing expensive Lego
products on three consecutive days. The Commonwealth also presented the
receipts for those three transactions, which established that Dunkle paid for
entirely different, and far less expensive products. In fact, the receipts show
that all ten of the expensive Lego products that Dunkle purchased scanned as
the exact same cheaper product (i.e., the Star Wars Lego Imperial Trooper
Battle Pack, valued at $11.97).
Although there was no direct video footage showing Dunkle modifying
the bar codes, nor any video footage showing modified bar codes on the Lego
items, the Commonwealth was not required to produce such evidence in order
to secure a conviction. As noted above, the Commonwealth need not establish
Dunkle’s guilt to a mathematical certainty. Franklin, 69 A.3d at 722.
Moreover, the facts and circumstances established by the Commonwealth
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3 While the Commonwealth’s Exhibit 6 (the DVD of the surveillance video
footage) is included in the record, it is not viewable. While our inability to
view the video footage is regrettable, it does not affect our disposition, as
there is no dispute among the parties as to what the video footage shows and
does not show, and the circumstantial evidence of Dunkle’s guilt is
overwhelming.
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need not be absolutely incompatible with Dunkle’s innocence. Id. Instead,
the Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial evidence.
See Jacoby, 170 A.3d at 1078.
We conclude that the mass of circumstantial evidence produced by the
Commonwealth, when considered collectively, was legally sufficient to prove
beyond a reasonable doubt that Dunkle committed retail theft. Ample
evidence was presented for the jury to find that Dunkle took the ten expensive
Lego items and, when out of view of surveillance cameras, placed different
bar codes on those items so that they would reflect a cheaper product when
he scanned them himself. From this evidence, the jury could infer that Dunkle
acted with the intention of under-ringing the items to deprive Walmart of their
full retail value. Accordingly, we agree that Dunkle’s sufficiency challenge is,
in fact, wholly frivolous.
Finally, as required by Anders, we have independently reviewed the
record in order to determine whether there are any non-frivolous issues
present in this case. Our independent review of the record discloses no other
non-frivolous issues that Dunkle could raise that his counsel overlooked.
Dempster, supra. Having concluded that there are no meritorious issues,
we grant Attorney Spessard’s petition to withdraw as counsel, and affirm the
judgment of sentence.
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Petition to withdraw as counsel granted. Judgment of sentence
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/25/2020
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