J-S07033-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BENJAMIN MARTIN FORSYTHE                   :
                                               :
                       Appellant               :   No. 1624 MDA 2018

        Appeal from the Judgment of Sentence Entered August 15, 2018
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0002081-2017


BEFORE:      OLSON, J., McLAUGHLIN, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                       FILED FEBRUARY 27, 2019

        Benjamin Martin Forsythe (Forsythe) appeals from the judgment of

sentence imposed by the Court of Common Pleas of Franklin County (trial

court) following his jury conviction of one count of Criminal Conspiracy to

Commit Retail Theft.1 We affirm.

        We derive the following relevant facts and procedural history from our

independent review of the certified record. On July 1, 2017, at approximately

1:50 p.m., Forsythe and his long-time girlfriend Cheyenne Crouse (Crouse)

went to Franklin Hardware & Pet Center located in Chambersburg, Franklin

County to purchase a dog license. While employees were organizing the store

the following day, they found empty packaging for a nylon dog toy on a shelf.

This signaled to the vice president of operations and store manager William
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1   18 Pa.C.S. § 903, 18 Pa.C.S. § 3929(a)(1).


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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Monn (Monn) that merchandise had been stolen prompting him to review

video surveillance footage from inside of the store. The video showed Crouse

putting dog-related goods in her purse and Forsythe’s apparent participation

in the offense. Monn contacted the state police to report the theft of $186.50

in merchandise.

       Forsythe proceeded to a jury trial in June 2018 and was convicted of the

above-referenced offense.2 The court sentenced Forsythe to a term of not

less than two nor more than twenty-three months’ incarceration, a fine of

$200.00, and restitution in the amount of $186.50. Following the trial court’s

denial of his timely post-sentence motion, Forsythe timely appealed.

       On appeal, Forsythe challenges the sufficiency of the evidence

supporting his conviction.3 (See Forsythe’s Brief, at 7-9). Forsythe argues

that the Commonwealth failed to establish his involvement in the theft where




____________________________________________


2 Crouse admitted to taking merchandise and entered a guilty plea to retail
theft. At Forsythe’s trial, she testified for the defense and stated that he did
not assist her in the theft.

3 “Whether the evidence was sufficient to support the conviction presents a
matter of law; our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Smyser, 195 A.3d 912, 915 (Pa. Super. 2018)
(citation omitted). “In conducting our inquiry, we examine whether the
evidence admitted at trial, and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as verdict winner,
support the jury’s finding of all the elements of the offense beyond a
reasonable doubt.” Id. (citation omitted). “The Commonwealth may sustain
its burden by means of wholly circumstantial evidence.” Id. (citation
omitted).

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there was no evidence that he took any merchandise from the store and

Crouse represented that she acted alone. This issue merits no relief.

      The Crimes Code provides that “[a] person is guilty of conspiracy with

another person or persons to commit a crime if with the intent of promoting

or facilitating its commission he:         (1) agrees with such other person or

persons that they or one or more of them will engage in conduct which

constitutes such crime . . . ; or (2) agrees to aid such other person or persons

in the planning or commission of such crime . . . .” 18 Pa.C.S. § 903(a). A

conspiracy is almost always proved through circumstantial evidence of the

conduct   of   the   parties   and   the    surrounding   circumstances.     See

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002),

appeal denied, 805 A.2d 521 (Pa. 2002). A person commits retail theft if he

or she “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[.]”       18 Pa.C.S. §

3929(a)(1).

      Here, Monn testified that the video surveillance footage showed that

Forsythe and Crouse were in the store for about thirty to forty minutes and

that during that time, Crouse put several items of merchandise into her purse.

(See N.T. Trial, at 31-32, 34). Although Crouse did not have the purse when

she initially entered the store, Forsythe went outside to retrieve it for her from

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his truck. (See id. at 33, 43-44). Forsythe then pointed at certain items that

ended up in Crouse’s purse.       (See id. at 26, 33).      The couple held

conversations while items were concealed in Crouse’s purse, and Crouse

showed Forsythe merchandise on the shelves that she had taken. (See id. at

33, 44). They exited the store together after purchasing a few pet-related

items and left the property in Forsythe’s vehicle. (See id. at 34-35).

      After review of the record, we conclude that although Forsythe did not

physically remove any items from the store, a conspiracy can be inferred from

the circumstantial evidence regarding his and Crouse’s actions. Therefore,

viewing the evidence in the light most favorable to the Commonwealth as

verdict-winner, the evidence was sufficient to support Forsythe’s Criminal

Conspiracy to Commit Retail Theft conviction.     Accordingly, we affirm the

judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 02/27/2019




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