J.A22043/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
                                            :
BRICE EDWARD BENNETT JR.,                   :
                                            :
                          Appellant         :     No. 2231 MDA 2013


            Appeal from the Judgment of Sentence October 30, 2013
                 In the Court of Common Pleas of York County
               Criminal Division No(s).: CP-67-CR-0000822-2013

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

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 16, 2014

        Appellant, Brice Edward Bennett, Jr., appeals from the judgment of

sentence entered in the York County Court of Common Pleas following his

jury conviction for retail theft.1 He challenges the sufficiency and weight of

the evidence. We affirm.

        Appellant was charged with leaving a Giant grocery store, with food

items hidden in his jacket, without paying for them. The case proceeded to

a jury trial on July 11 and 12, 2013, at which Appellant was pro se with




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3929(a)(1).
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appointed, stand-by counsel.2

trial

grocery store and the responding police officer.3 See Trial Ct. Op. at 2-3.

We add that Appellant did not testify or present evidence or witnesses.

        The jury returned a guilty verdict for retail theft. Appellant filed a pro

se motion for relief, which was denied. On October 30, 2013, the trial court

held a sentencing hearing, at which Appellant was represented by the same

attorney. The court imposed a sentence in the aggravated range of eighteen

to thirty-six months.4      Appellant filed a timely, counseled post-sentence

motion, which was denied,5 and then filed a timely notice of appeal.6




2
    The same attorney now represents Appellant in this appeal.
3
 The retail value of the food items was $45.07. Trial Ct. Op., 2/12/14, at 7.
To stop Appellant from fleeing, the officer attempted to taser him as he ran

jacket but did not hit his body.
4
  Appellant raised a challenge to the discretionary aspects of his sentence in
his Pa.R.A.P. 1925(b) statement. However, he abandons that claim on


5
  On December 2, 2013, after the court denied the post-sentence motion but
before counsel filed the notice of appeal, Appellant filed a pro se Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546, petition. While it is not
clear whether the court forwarded a copy of the petition to counsel, the
court did not rule on it. See Pa.R.Crim.P. 576(A)(4) (stating that when
criminal defendant, who is represented by attorney, submits motion for filing
that has not been signed by attorney, clerk of court shall accept it for filing
and forward copy to counsel).




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      On appeal, Appellant first challenges the sufficiency of the evidence for

retail theft.   He asserts that the surveillance video played at trial did not

show, and there was no testimony that he took anything from the store.

                                                                that he saw a

                                                             pellant ran away

from him in the parking lot

probable cause, which stated he saw hot dogs and other meat products.

Appellant also contends that although other items were found on his person,

he was not seen with these items in the store.        Appellant concludes the

evidence was speculative and thus not sufficient.

      Appellant next challenges the weight of the evidence.7 His argument,



the




Brief at 13. We find no relief is due.

      We set forth the relevant standard of review:

             The standard we apply in reviewing the sufficiency of
          the evidence is whether viewing all the evidence admitted

6

statement of errors complained of on appeal, and the court issued a
responsive opinion.
7
                                                                     -sentence
motion. See Pa.R.Crim.P. 607(A)(1)-(3).



                                         -3-
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         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
         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 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.

                                  *    *    *

         An allegation that the verdict is against the weight of the
         evidence is addressed to the discretion of the trial court. A
         new trial should not be granted because of a mere conflict
         in the testimony or because the judge on the same facts
         would have arrived at a different conclusion. A trial judge
         must do more than reassess the credibility of the
         witnesses and allege that he would not have assented to
         the verdict if he were a juror. Trial judges, in reviewing a
         claim that the verdict is against the weight of the
         evidence[,] do not sit as the thirteenth juror. Rather, the
         role of the trial judge is to determine that notwithstanding
         all the facts, certain facts are so clearly of greater weight
         that to ignore them or to give them equal weight with all
         the facts is to deny justice.

Commonwealth v. Bruce, 916 A.2d 657, 661, 665 (Pa. Super. 2007)

(citations omitted).

      After review of the certified record, including the trial transcript, the



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and relev

                                  See Trial Ct. Op. at 2-3, 5-8 ((1) stating



credibility determinations are within sole province of jury; (2) noting: (a)




requests to stop, and (b) police officer testified he respond



parking lot was empty, Appellant was only person in this area, officer tried

to stop Appellant but Appellant fled, officer observed hot dogs fall from




identity; and (3) holding evidence was sufficient for jury to find Appellant

took items that were offered for sale away from store, without paying full

retail value for them, with intent to deprive store of items). We likewise no



                                                   See id. at 8 (stating jury

found testimony of cashier and officer credible, any inconsistencies in



sense of justice).




                                    -5-
J. A22043/14

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/16/2014




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