Com. v. Valentin, M.

J-S58043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL ERVIN VALENTIN
Appellant No. 2118 MDA 2015
Appeal from the Judgment of Sentence November 2, 2015
In the Court of Common Pleas of Northumberland County
Criminal Division at No(s): CP-49-CR-0000969-2014
BEFORE: GANTMAN, P.J., BOWES, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 12, 2016
Appellant, Michael Ervin Valentin, appeals from the judgment of
sentence entered in the Northumberland County Court of Common Pleas,
following his jury trial conviction of retail theft.1 We affirm.
The relevant facts and procedural history of this case are as follows.
Appellant, who was an employee at a Walmart in Coal Township,
Pennsylvania, scanned his employee discount card at a self-checkout station
before his mother and stepfather purchased a carpet steam cleaner on June
17, 2014. The steam cleaner UPC code had been switched with a less
expensive floor cleaner UPC code, for a difference in price of $150.00. The
____________________________________________
1
18 Pa.C.S.A. § 3929(a)(1).
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S58043-16
transaction caused an alert to be sent to the store’s asset protection team.
The same day, Robert Figard, the Walmart asset protection manager in that
store, reviewed security tapes of the suspicious transaction. Mr. Figard then
examined video of all purchases Appellant had made in the preceding 30
days and discovered Appellant habitually “under-rung,” or failed to scan,
certain items at the self-checkout. Based on Mr. Figard’s analysis of the
tapes, he estimated Appellant had stolen at least $275.78 worth of
merchandise by switching price tags and under-ringing certain items on
several different occasions.
On September 4, 2014, the Commonwealth charged Appellant with
one count of retail theft. The court appointed counsel, and on October 30,
2014, Appellant filed a motion for writ of habeas corpus. Following a
hearing, the court denied the motion on January 8, 2015. Appellant
proceeded to a jury trial and was convicted on August 20, 2015. The court
ordered a pre-sentence investigation report and sentenced Appellant on
November 2, 2015, to 24 months’ probation, plus costs and fines. At
sentencing, Appellant requested new counsel on appeal, as trial counsel had
also represented Appellant’s mother on her separate shoplifting charges
stemming from the June 17, 2014 incident. The court granted counsel’s
motion to withdraw and appointed new counsel on November 6, 2015.
Appellant timely filed a notice of appeal on December 2, 2015. The court
ordered Appellant on December 14, 2015, to file a concise statement of
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errors pursuant to Pa.R.A.P. 1925(b), and Appellant timely complied the
same day.
Appellant raises two issues for our review:
DID THE COMMONWEALTH PRESENT SUFFICIENT
EVIDENCE TO PROVE [APPELLANT’S] GUILT FOR RETAIL
THEFT, [18 Pa.C.S.A.] § 3929(A)(1)?
WAS [APPELLANT’S] RIGHT TO EFFECTIVE
REPRESENTATION DENIED BY HIS TRIAL COUNSEL’S
JOINT REPRESENTATION OF HIM AND HIS ALLEGED
ACCOMPLICE?
(Appellant’s Brief at 6).
In his first issue, Appellant argues 18 Pa.C.S.A. § 3929(a)(1) pertains
only to retail theft defendants who take items from a store without paying
for them. Appellant contends his actions fall instead within the ambit of
either 18 Pa.C.S.A. § 3929(a)(2), which involves altering or tampering with
a price tag, or 18 Pa.C.S.A. § 3929(a)(4), which addresses specifically
under-ringing merchandise. Appellant maintains the Commonwealth would
have been able to prove “altering” per 18 Pa.C.S.A. § 3929(a)(2) or “under-
ringing” per 18 Pa.C.S.A. § 3929(a)(4), but failed to present sufficient
evidence to show an outright “taking” per 18 Pa.C.S.A. § 3929(a)(1).
Appellant concludes this Court must vacate his conviction. We disagree.
As a preliminary matter, “to preserve their claims for appellate review,
appellants must comply whenever the trial court orders them to file a
Statement of [Errors] Complained of on Appeal pursuant to [Rule] 1925.
[As a general rule, a]ny issues not raised in a [Rule] 1925(b) statement will
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be deemed waived.” Commonwealth v. Castillo, 585 Pa. 395, 403, 888
A.2d 775, 780 (2005) (quoting Commonwealth v. Lord, 553 Pa. 415, 420,
719 A.2d 306, 309 (1998)). “If [an appellant] wants to preserve a claim
that the evidence was insufficient, then the [Rule] 1925(b) statement needs
to specify the element or elements upon which the evidence was
insufficient.” Commonwealth v. Manley, 985 A.2d 256, 262 (Pa.Super.
2009), appeal denied, 606 Pa. 671, 996 A.2d 491 (2010).
Instantly, Appellant’s Rule 1925(b) statement generically asserts,
“[t]he verdict was against the sufficiency of the evidence.” (See Appellant’s
Rule 1925(b) Statement, filed 12/14/15, at 1). Appellant’s Rule 1925(b)
statement fails to preserve his specific sufficiency claim that the
Commonwealth erroneously prosecuted him under 18 Pa.C.S.A. §
3929(a)(1). Consequently, Appellant waived this claim on appeal. See
Castillo, supra; Lord, supra; Manley, supra.Moreover, Appellant would not be entitled to relief even if he had
properly preserved his issue for appeal. With respect to a sufficiency claim:
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
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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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)
(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.
2003)).
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 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;
(2) alters, transfers or removes any label, price tag
marking, indicia of value or any other markings which
aid in determining value affixed to any merchandise
displayed, held, stored or offered for sale in a store or
other retail mercantile establishment and attempts to
purchase such merchandise personally or in consort
with another at less than the full retail value with the
intention of depriving the merchant of the full retail
value of such merchandise;
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* * *
(4) under-rings with the intention of depriving the
merchant of the full retail value of the merchandise.
* * *
18 Pa.C.S.A. § 3929(a)(1-2, 4). The Crimes Code also makes clear:
§ 3902. Consolidation of theft offenses.
Conduct denominated theft in this chapter constitutes a
single offense. An accusation of theft may be supported
by evidence that it was committed in any manner that
would be theft under this chapter, notwithstanding the
specification of a different manner in the complaint or
indictment, subject only to the power of the court to
ensure fair trial by granting a continuance or other
appropriate relief where the conduct of the defense would
be prejudiced by lack of fair notice or by surprise.
18 Pa.C.S.A. § 3902. Thus, the concept of “theft” embraces all of the
various forms of a taking of something without a claim of right, as long as
the charging documents state facts to justify the conclusion that the person
charged committed a theft. See, e.g., Commonwealth v. Lewis, 445 A.2d
798, 800 (Pa.Super. 1982) (stating: “This statute means that a specific
charge of theft will permit evidence showing another type of theft; provided
only, that the defendant must be given adequate opportunity to respond so
that he…will not be prejudiced or surprised”).
Instantly, the trial court addressed the general sufficiency of the
evidence in Appellant’s case, and stated:
At trial, there was extensive testimony by Robert Figard,
Walmart’s Asset Protection Manager, as to [Appellant’s]
transactions at the register; whereby [Appellant] would
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use [self-checkout] machines to scan some of his
purchases, but not others. Additionally, the
Commonwealth showed a number of videos [that]
recorded [Appellant’s] transactions as to his covert
attempts not to scan [merchandise] on May 16th, 22nd,
25th, 28th, June 3rd, 4th, 6th, and 17th of 2014.
(Trial Court Opinion, filed January 15, 2016, at 2). Thus, the evidence at
trial was sufficient to show Appellant was guilty of subsection (a)(1) as well
as subsections (a)(2) and (a)(4). Therefore, we conclude Appellant’s claim
would merit no relief even if he had properly preserved it.
In his second issue, Appellant acknowledges that allegations of
ineffective assistance of counsel must be deferred to collateral review.
Appellant argues, however, this Court has discretion to consider
ineffectiveness claims raised on direct appeal where trial counsel’s
ineffectiveness is apparent from the record and addressing such claims
would best serve the interests of justice. Appellant contends this Court
should review his claim, as his trial counsel rendered ineffective assistance
by representing both Appellant and Appellant’s mother in a separate case.
Appellant avers his mother was charged also with retail theft following the
incident at Walmart on June 17, 2014. Appellant maintains counsel’s
representation of Appellant’s mother in her theft case, which resulted in her
entry into an ARD program, prejudiced Appellant’s defense by preventing
him from attributing fault to his mother. Appellant concludes he is entitled
to a new trial, given counsel’s ineffectiveness. We decline to address this
claim.
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Ineffective assistance of counsel claims are generally reserved for
collateral review. Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726(2002). Ineffectiveness claims may be raised on direct appeal only if: (1)
the appellant raised his claim(s) in a post-sentence motion; (2) an
evidentiary hearing was held on the claim(s); and (3) a record devoted to
the claim(s) has been developed. Commonwealth v. Leverette, 911 A.2d
998, 1004 (Pa.Super. 2006).
The Pennsylvania Supreme Court recognizes two exceptions to the
Grant rule, both of which fall within the discretion of the trial court.
First, we appreciate that there may be extraordinary
circumstances where a discrete claim (or claims) of trial
counsel ineffectiveness is apparent from the record and
meritorious to the extent that immediate consideration
best serves the interests of justice; and we hold that trial
courts retain their discretion to entertain such claims.
Second, with respect to other cases and claims…where the
defendant seeks to litigate multiple or prolix claims of
counsel ineffectiveness, including non-record-based claims,
on post-verdict motions and direct appeal, we repose
discretion in the trial courts to entertain such claims, but
only if (1) there is good cause shown, and (2) the unitary
review so indulged is preceded by the defendant’s knowing
and express waiver of his entitlement to seek PCRA review
from his conviction and sentence, including an express
recognition that the waiver subjects further collateral
review to the time and serial petition restrictions of the
PCRA.
Commonwealth v. Holmes, 621 Pa. 595, 598-99, 79 A.3d 562, 563-64
(2013) (internal citations and footnotes omitted).
As the law currently stands, a valid waiver of PCRA review
is a prerequisite to appellate review of ineffectiveness
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claims on direct appeal. Because our Supreme Court and
this Court en banc have instructed that ineffectiveness
claims are generally not reviewable on direct appeal,
before reviewing such a claim on direct appeal it is
incumbent upon this Court to determine whether a
defendant expressly, knowingly and voluntarily waived his
or her right to PCRA review.
Commonwealth v. Baker, 72 A.3d 652, 665 (Pa.Super. 2013).
Instantly, Appellant failed to raise his ineffectiveness claim in a post-
sentence motion, and the court did not hold an evidentiary hearing to
address the issue. See Grant, supra; Leverette, supra. Likewise, there
is nothing in the record to indicate Appellant waived his right to raise an
ineffectiveness claim in a timely filed petition pursuant to the Post Conviction
Relief Act, at 42 Pa.C.S.A. §§ 9541-9546. See Holmes, supra; Baker,
supra. Therefore, we decline to review on direct appeal Appellant’s
allegation that his trial counsel was ineffective and dismiss his
ineffectiveness claim without prejudice to his right to raise it in a timely
petition for collateral review. See Grant, supra. Accordingly, we affirm
Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judge Platt joins this memorandum.
Judge Bowes concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/12/2016
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