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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


                                      -2-
J-S58043-16


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

                                    -3-
J-S58043-16


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

                                             -4-
J-S58043-16


           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;


                                       -5-
J-S58043-16


                                   *     *   *

            (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

                                       -6-
J-S58043-16


         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.

                                         -7-
J-S58043-16


      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

                                      -8-
J-S58043-16


         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.




                                         -9-
J-S58043-16


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/12/2016




                          - 10 -
