J-S71041-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

DARLA GREEN

                               Appellant               No. 2759 EDA 2015


            Appeal from the Judgment of Sentence August 27, 2015
     in the Court of Common Pleas of Philadelphia County Criminal Division
                       at No(s): CP-51-CR-0002034-2015

BEFORE: BOWES, PANELLA, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                      FILED OCTOBER 26, 2016

        Appellant, Darla Green, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas after her bench

trial conviction of retail theft.1   Appellant’s counsel has filed a petition to

withdraw pursuant to Anders v. California, 386 U.S. 738 (1967), and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).               Counsel’s brief

presents the sole issue of whether there was insufficient evidence to support

Appellant’s conviction. We grant counsel’s petition to withdraw and affirm

the judgment of sentence.

        We adopt the facts and procedural history set forth by the trial court’s

opinion. See Trial Ct. Op., 1/7/16, at 1-3. Counsel identified the following

issue in the Anders brief:

*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3929(a)(1).
J-S71041-16


        Was the evidence insufficient to support [A]ppellant’s
        conviction for retail theft, graded as a misdemeanor of the
        first degree?

Anders Brief at 3.

     As a prefatory matter, we review counsel’s petition to withdraw.

        This Court must first pass upon counsel’s petition to
        withdraw before reviewing the merits of the underlying
        issues presented by [the appellant].

           Prior to withdrawing as counsel on a direct appeal under
        Anders, counsel must file a brief that meets the
        requirements established by our Supreme Court in
        Santiago. The brief must:

           (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 reasons for concluding 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. Counsel also must provide a
        copy of the Anders brief to his client. Attending the brief
        must be a letter that advises the client of his right to: “(1)
        retain new counsel to pursue the appeal; (2) proceed pro
        se on appeal; or (3) raise any points that the appellant
        deems worthy of the court[’]s attention in addition to the
        points raised by counsel in the Anders brief.”

Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014)

(some citations omitted). If counsel complies with these requirements, “we



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J-S71041-16


will make a full examination of the proceedings in the lower court and render

an independent judgment [as to] whether the appeal is in fact ‘frivolous.’”

Id. at 882 n.7 (citation omitted).

        Instantly, counsel provided a factual and procedural summary of the

case with citations to the record. Anders Brief at 4-6. Counsel explained

the relevant law and discussed why Appellant’s issue is meritless, noted that

counsel made a conscientious examination of the record, and determined the

appeal is wholly frivolous. Id. at 9-14. Counsel for Appellant provided her

with a copy of the Anders brief and a letter advising Appellant of her rights.

Counsel’s Pet. to Withdraw, 4/18/16.        In light of the foregoing, we hold

counsel has complied with the requirements of Santiago.          See Orellana,

86 A.3d at 879-80. Appellant has not filed a pro se or counseled brief. We

now examine the record to determine whether the appeal is wholly frivolous.

See id. at 882 n.7.

        After careful consideration of the Anders brief,2 the record, and the

decision of the trial court, we affirm on the basis of the trial court’s opinion.

See Trial Ct. Op. at 3-5 (summarizing evidence as follows: Appellant

intended to carry away the sneakers from Macy’s when she left the store’s

shoe department with the sneakers on her feet, passed ten to fifteen cash

registers without paying for the shoes, and attempted to exit the door when

security staff stopped her; Appellant’s actions constituted the requisite

2
    The Commonwealth did not file a brief in this appeal.



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J-S71041-16


taking possession of and carrying away of retail merchandise; Appellant’s

claim that there was no indication of the shoes’ ownership because of a lack

of a price tag was not credible, as the shoes had a store tag and a SKU

number; even if the shoes did not have a price tag, Appellant’s allegation

that new shoes in a store’s shoe department without a price tag are free to

be taken is not a cognizable defense; the value of the shoes was $195 and,

thus, exceeded $150 to be graded as a first-degree misdemeanor).        Our

independent review of the record reveals no other issues of arguable merit.

See Orellana, 86 A.3d at 882 n.7. Accordingly, we grant counsel’s petition

to withdraw and affirm the judgment of sentence.

     Counsel’s petition to withdraw granted.        Judgment of sentence

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/26/2016




                                   -4-
                                                                                               Circulated 09/21/2016 04:38 PM




                            IN THE COURT OF COMMON PLEAS
                   FOR THE FIRST JUDICIAL DISTRICT OF PENNSYLVANIA
                               TRIAL DIVISION - CRIMINAL

 COMMONWEAL TH OF PA                                                CP-5 I -CR-0002034-20 IS   F \LE
         v.
                                                                                                JAN O'l 20\6
 DARLA GREEN
                                                                                               . . \ Appea\s Un\t
                                       MEMORANDUM                    OPINION            f\~\lT~~f  c\a\ oistrlct o1 PA
                                      CP-5!-CR-0002034-2015 Comm.   v. Green,   Darla
 CA1\tfPBELL, J.                                         Opinion                        December      3 / , 2015
 Prnccdurnl Riston'
                                            I
                                          II I II llll 111111111111111
                                                  7390626301
        On August 26, 2015, Defendant Darla Green proceeded to trial before this Court, sitting

without a jury. Defendant was convicted of Retail Theft as a misdemeanor of the first degree (18

Pa. C.S. § 3929(a)(l)).    Sentencing was deferred to August 27, 2015, when Defendant was

sentenced to 4 years probation.

        A Notice of Appeal was filed on, September 10, 2015.

        Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the Court entered an order on October 7, 2015,

directing the filing of a Statement of Errors Complained of on Appeal, not later than twenty-one

(21) days after entry of the order.

        On October 26, 2015, a "Preliminary Statement of Errors Complained of on Appeal" was

filed. The Statement contained to allegations of error.

       On that same date, Defendant filed a Petition for leave to file a supplemental Rule

1925(b) statement of errors upon preparation of the notes of testimony. That petition was denied

without prejudice to seek leave to file an amended statement of errors upon receipt of the notes

of testimony on November 9, 2015.

       The notes of testimony became available on December 14, 2015.                       On December 23,

2015, Defense counsel filed a supplemental statement of errors, stating:
           Counsel has reviewed the notes of testimony for this matter and believes there are no
           non-frivolous issues preserved for appeal. See Anders v. California, 386 U.S. 738 (1967);
           Commonwealth v. Santiago, 2009 Pa. LEXIS 1784 (Pa. 2009). Counsel, therefore,
           intends to file a brief pursuant to Anders and Santiago.

 Factual Histon·

           Ralph DeRita testified that he is assistant security director for Macy's Department Store.

 On November 2, 2014, DeRita was working at Macy's at 1300 Market Street. NT 8/26/15, pp.

 15-16,31.

           After being contacted by detectives working for him, DeRita observed Defendant through

 a video security camera.     That video was recorded.     NT 8/26/ l 5, pp. 18-19; C-1.   At about

 12: 15,. DeRita observed, and the video showed, Defendant trying on a pair Michael Kors

sneaker.     NT 8/26/15, p. 20.    Defendant was subsequently stopped by Macy's personnel and

escorted to DeRita's officer, where a pair of Helen High Top sneakers by Michael Kors, were

recovered.     The sneakers were ascertained to have been priced at $195. NT 8/26/15, pp.22-23,

25, 32-33.     Defendant was wearing the sneakers at the time they were recovered from her in

DeRita's office. NT 8/26/15, p. 26.

       Defendant was stopped at the partially open doorway. NT 8/26/15, p. 33. At the point

where Defendant was stopped, she had passed 10-15 active registers, and was beyond all points

of purchase. NT 8/26/15, p. 26.

       Defendant testified that the shoes in question did not have a price tag on them, from

which she said she concluded they could have been anybody's.          She further testified that she

never walked out of the store with the shoes. NT 8/26/15, pp. 35-36.

       There was a stipulation that Defendant has a prior conviction for retail theft as a summary

offense. NT 8/26/15, pp.37-38.

                                                  2
        The parties agreed that Defendant's        offense gravity score under the Pennsylvania

 Sentencing Guidelines was 3, and her prior record score was zero, yielding a sentencing range of

RS to one, plus or minus 3. NT 8/26/15, p. 39. Sentencing was bifurcated to permit Defendant

to discuss the sentencing process and allocution with her counsel.

        On August     27, 201 S, Defendant was sentenced        to 4 years' probation,        under the

supervision of the Mental Health Unit, with the first two years to be reporting probation, and the

last two years to be non-reporting.   NT 8/27/1 S, p. S.

Discussion

        Although Defense counsel has not identified any errors for appeal, we will nonetheless

discuss the sufficiency of the evidence, including grading of the offense.

        The evidence was sufficient to establish the crime of retail theft as a misdemeanor of
        the first degree.

        A claim challenging     the sufficiency    of the evidence    presents   a question     of law.

Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751 (2000). We must determine "whether

the evidence is sufficient to prove every element of the crime beyond a reasonable doubt."

Commonwealth v. Hughes, 521 Pa. 423, SSS A.2d 1264, 1267 (1989). We "must view evidence

in the light most favorable to the Commonwealth        as the verdict winner, and accept as true all

evidence and all reasonable inferences        therefrom upon which,    if believed, the fact finder

properly could have based its verdict." Id.

       Our Supreme Court has instructed:

       [T]he 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. Moreover, in applying the above test, the entire record

                                                  3
        must be evaluated and all evidence actually received must be considered. Finally,
        the trier 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. Ratsamy, 594 Pa. 176, 934 A.2d 1233, 1236 n. 2 (2007).

Commonwealth v. Thomas, 65 A.3d 939, 943 (Pa.Super, 2013).

        Moreover,       a conviction   may stand on circumstantial     evidence.    Commonwealth v.

Roscioli, 309 A.2d 396, 398 (1973) ("Although the Commonwealth does not have to establish

guilt to a mathematical certainty, and may in the proper case rely wholly on circumstantial

evidence, the conviction          must be based on more than mere suspicion          or conjecture.");

Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa.Super. 2005) ("[T]he fact that the evidence

establishing      a defendant's   participation in a crime is circumstantial   does not preclude a

conviction     where the evidence       coupled with the reasonable    inferences   drawn therefrom

overcomes the presumption of innocence." ( quoting Commonwealth v. Murphy, 795 A.2d l 025,

l 038-39 (Pa.Super, 2002)).

        The Crimes Code defines the offense of Retail Theft (18           Pa. C.S. § 3929(a)(l)), in

pertinent part:

        § 3929. Retail theft.
        (a) Offense defined. -A person is guilty of a retail theft if he:(l) 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;


        (b) Grading.
        (1) Retail theft constitutes a:
               (i) Summary offense when the offense is a first offense and the value of the
               merchandise is less than$ 150.
               (ii) Misdemeanor of the second degree when the offense is a second offense and
               the value of the merchandise is less than $ 150.


                                                    4
                (iii) Misdemeanor of the first degree when the offense is a first or second offense
                and the value of the merchandise is$ 150 or more ...

        Here, the evidence established that Defendant intended to and did carry away the

sneakers.   She left the shoe area of the store, with the shoes on her feet, passed numerous cash

registers without attempting to pay for the shoes, and was exiting the door, beyond any payment

opportunity, when she was intercepted by Macy's security staff. This conduct constituted the

requisite taking possession of and carrying away of the retail merchandize.      Nor did the Court

find credible her claim that there was no evident ownership of the shoes because they did not

have a price tag and could have been anybody's.      NT 8/26/15, pp. 35-36. To the contrary, the

credible evidence demonstrated that the shoes had a store tag with a SKU number. NT 8/26/15,

pp. 24, 32-33. Further, even if we had believed Defendant that the shoes did not have a tag, the

notion that new shoes in a store's shoe department are there for the taking in the absence of a tag,

in not a cognizable defense.

        Further, the Court found credible the evidence that the value of the shoes was $195.

Accordingly, the value of the merchandise exceeded $150, and the retail theft was properly

graded as a misdemeanor of the first degree. 18 Pa. C.S. § 3929(b )(1 )(iii).

       Accordingly,   for all the reasons set forth here, Defendant's conviction         should be

affirmed.

                                              By The Court:




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