J-S54022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

TIFFANY LYONS

                            Appellant                   No. 125 WDA 2017


            Appeal from the Judgment of Sentence November 29, 2016
                   In the Court of Common Pleas of Erie County
               Criminal Division at No(s): CP-25-CR-0000360-2016


BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*

MEMORANDUM BY MOULTON, J.:                     FILED: SEPTEMBER 29, 2017

       Tiffany Lyons appeals from the November 29, 2016 judgment of

sentence entered in the Erie County Court of Common Pleas following her

conviction for conspiracy to commit retail theft.1 We affirm.

       The trial court summarized the factual history of this matter as

follows:

               On the morning of December 14, 2015, [Lyons] went to
            the home of her friend, Antoinette Blue, and said “let’s go
            hustling.”      Ms.   Blue       explained  the     phrase
            “let’s go hustling” meant “let’s go make some money,” and
            that she and [Lyons] understood this to mean “let’s go
            shoplifting.”


____________________________________________


       *   Former Justice specially assigned to the Superior Court.

       1   18 Pa.C.S. § 903.
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            [Lyons] and Ms. Blue decided to go to the GameStop in
         Wesleyville, Pennsylvania. The two travelled to the store
         together. Before exiting their vehicle, they formed a plan
         to distract the people working in the store because “that’s
         what [they] do all the time.” The two agreed [Lyons]
         would distract the store clerks while Ms. Blue physically
         took the merchandise. Ms. Blue admitted to taking an X-
         Box from the store that day, and later pled guilty to the
         crime of retail theft.

             The testimony of Aaron Findley, the store leader of the
         GameStop in Wesleyville, revealed a Limited Edition X-Box
         One [console] was taken from the store on December 14,
         2015.     Review of security footage recorded that day
         showed [Lyons] and Ms. Blue entering the store together.
         On the video, [Lyons] approached a store clerk, Valerie
         Prindle, and pulled her away from the register area of the
         store where the [consoles] were kept. A few minutes later,
         the video showed Ms. Blue taking an X-Box One. [Lyons]
         left the store not long after Ms. Blue. [Lyons] did not
         purchase anything from the store.

1925(a) Op., 2/28/17, at 1-2 (citations omitted; some alterations in

original).

      On October 18, 2016, a jury convicted Lyons of conspiracy to commit

retail theft. On November 29, 2016, the trial court sentenced Lyons to 12 to

24 months’ incarceration, with credit for 19 days served. On December 9,

2016, Lyons filed a motion for reconsideration/modification of sentence,

which the trial court denied on December 12, 2016. On January 11, 2017,

Lyons timely filed a notice of appeal.

      Lyons   raises   the   following    issue   on   appeal:   “Whether   the

Commonwealth presented sufficient evidence to find [Lyons] guilty of

criminal conspiracy to commit retail theft?”             Lyons’ Br. at 3 (full

capitalization omitted).

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      Lyons contends that the Commonwealth failed to present sufficient

evidence to prove both that she and Blue had an agreement and that an

overt act in furtherance of a conspiracy occurred.

      Our standard of review for a challenge to the sufficiency of the

evidence is well-settled:

              The standard we apply . . . 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 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. Antidormi, 84 A.3d 736, 756 (Pa.Super. 2014)

(quoting Commonwealth v. Estepp, 17 A.3d 939, 943-44 (Pa.Super.

2011)).

      We have previously held:

             To sustain a conviction for criminal conspiracy, the
          Commonwealth must establish that the defendant (1)
          entered an agreement to commit or aid in an unlawful act
          with another person or persons, (2) with a shared criminal


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        intent and, (3) an overt act was done in furtherance of the
        conspiracy. This overt act need not be committed by the
        defendant; it need only be committed by a co-conspirator.

           The essence of a criminal conspiracy is a common
        understanding, no matter how it came into being, that a
        particular criminal objective be accomplished. Therefore, a
        conviction for conspiracy requires proof of the existence of
        a shared criminal intent. An explicit or formal agreement
        to commit crimes can seldom, if ever, be proved and it
        need not be, for proof of a criminal partnership is almost
        invariably extracted from the circumstances that attend its
        activities. Thus, a conspiracy may be inferred where it is
        demonstrated that the relation, conduct, or circumstances
        of the parties, and the overt acts of the co-conspirators
        sufficiently prove the formation of a criminal confederation.

            The conduct of the parties and the circumstances
        surrounding their conduct may create a web of evidence
        linking the accused to the alleged conspiracy beyond a
        reasonable doubt.

Commonwealth v. Ruiz, 819 A.2d 92, 97 (Pa.Super. 2003) (quoting

Commonwealth v. Johnson, 719 A.2d 778, 794-85 (Pa.Super. 1998)).

“[W]hen viewed in conjunction with each other and in the context in which

they occurred,” circumstances which may prove conspiracy include: “(1) an

association between alleged conspirators; (2) knowledge of the commission

of the crime; (3) presence at the scene of the crime; and (4) in some

situations, participation in the object of the conspiracy.”   Id. (quotation

omitted).

     The trial court concluded that the Commonwealth presented sufficient

evidence to sustain the conviction, reasoning:

           At the time of trial, the Commonwealth presented
        evidence [that Lyons] entered into an agreement with
        Antoinette Blue to go “hustling.” The term “hustling” is

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        described by Ms. Blue as meaning “shoplifting.” According
        to Ms. Blue, she and [Lyons] agreed [Lyons] would distract
        the store clerks while Ms. Blue stole from the store. Jury
        Trial Transcript, 10/18/16, p. 24-27, 30-31.

           Subsequently, [Lyons] and Ms. Blue are seen on video
        at the Game Stop, entering the store together. [Lyons]
        pulls one clerk away from the register area of the store.
        Ms. Blue then steals the X-Box. See Testimony of Aaron
        Findlay, Jury Trial Transcript, 10/18/16, p. 7-17.

1925(a) Op. at 5. We agree with the trial court’s conclusion.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2017




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