J-S26037-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,            :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                 Appellee                :
                                         :
                    v.                   :
                                         :
MAYA N. BENNETT,                         :
                                         :
                 Appellant               :     No. 977 EDA 2015

          Appeal from the Judgment of Sentence March 11, 2015
           in the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0005081-2014

BEFORE:    OLSON, STABILE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED APRIL 20, 2016

     Maya N. Bennett (Appellant) appeals from the judgment of sentence of

four years of probation following her non-jury conviction for retail theft.

Appellant’s counsel has filed a petition to withdraw and a brief pursuant to

Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.

Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence

and grant the petition to withdraw.

     The trial court summarized the evidence offered at trial as follows.

           Curtisha Wallace was working as an employee for Dollar
     General Store on March 24, 2014. She was working at the cash
     register when she observed [Appellant] enter the store. Ms.
     Wallace left the register to put out new merchandise.

           [Appellant] approached Ms. Wallace and asked for her help
     in finding an item. As Ms. Wallace started to walk to show
     [Appellant] the aisle where the item was located, [Appellant]
     backed away from Ms. Wallace, shielding her purse.


*Retired Senior Judge assigned to the Superior Court.
J-S26037-16


            As [Appellant] was leaving the store, Ms. Wallace noticed
      that [Appellant’s] purse, which had appeared empty when she
      entered, now appeared full. Ms. Wallace stopped [Appellant]
      after she had passed the registers and was approaching the exit
      door.

             Inside [Appellant’s] purse Ms. Wallace found eleven (11)
      miscellaneous items from the store.       The items had Dollar
      General labels. One of the items was Glade air freshener that
      Ms. Wallace had earlier seen [Appellant] holding while walking
      down an aisle in the store.       When the items were found,
      [Appellant] pleaded to be let go, saying she was sorry, that she
      didn’t have money to pay and that she wouldn’t do it again.

Trial Court Opinion, 9/17/2015, at 2 (citations omitted).

      Upon this evidence, the trial court convicted Appellant of retail theft

and imposed a sentence of four years of probation.1 This timely-filed appeal

followed.

      In this Court, Appellant’s counsel filed both an Anders brief and a

petition to withdraw as counsel. Accordingly, the following principles guide

our review of this matter.

             Direct appeal counsel seeking to withdraw under Anders
      must file a petition averring that, after a conscientious
      examination of the record, counsel finds the appeal to be wholly
      frivolous. Counsel must also file an Anders brief setting forth
      issues that might arguably support the appeal along with any
      other issues necessary for the effective appellate presentation
      thereof….




1
  Because it is Appellant’s third such conviction, it is graded as a felony of
the third degree. 18 Pa.C.S. § 3929(b)(1)(iv) (“Retail theft constitutes a: …
[f]elony of the third degree when the offense is a third or subsequent
offense, regardless of the value of the merchandise.)


                                     -2-
J-S26037-16


            Anders counsel must also provide a copy of the Anders
     petition and brief to the appellant, advising the appellant of the
     right to retain new counsel, proceed pro se or raise any
     additional points worthy of this Court’s attention.

            If counsel does not fulfill the aforesaid technical
     requirements of Anders, this Court will deny the petition to
     withdraw and remand the case with appropriate instructions
     (e.g., directing counsel either to comply with Anders or file an
     advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
     petition and brief satisfy Anders, we will then undertake our
     own review of the appeal to determine if it is wholly frivolous. If
     the appeal is frivolous, we will grant the withdrawal petition and
     affirm the judgment of sentence. However, if there are non-
     frivolous issues, we will deny the petition and remand for the
     filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure:

     [I]n the Anders brief that accompanies court-appointed
     counsel’s petition to withdraw, counsel 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
     conclusion 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.

     Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has complied with the technical




                                    -3-
J-S26037-16


requirements set forth above.2      Therefore, we now have the responsibility

“‘to make a full examination of the proceedings and make an independent

judgment to decide whether the appeal is in fact wholly frivolous.’”

Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015)

(quoting Santiago, 978 A.2d at 354 n. 5).

        Counsel presented this Court with one issue of arguable merit

concerning the sufficiency of the evidence to sustain Appellant’s conviction.

Anders Brief at 3. We begin with the law applicable to the first issue.

              As a general matter, our standard of review of sufficiency
        claims requires that we evaluate the record in the light most
        favorable to the verdict winner giving the prosecution the benefit
        of all reasonable inferences to be drawn from the evidence.
        Evidence will be deemed sufficient to support the verdict when it
        establishes each material element of the crime charged and the
        commission thereof by the accused, beyond a reasonable doubt.
        Nevertheless, the Commonwealth need not establish guilt to a
        mathematical certainty. Any doubt about the defendant’s guilt is
        to be resolved by the fact finder unless the evidence is so weak
        and inconclusive that, as a matter of law, no probability of fact
        can be drawn from the combined circumstances.

              The Commonwealth may sustain its burden by means of
        wholly circumstantial evidence. Accordingly, [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. Significantly, we may
        not substitute our judgment for that of the fact finder; thus, so
        long as the evidence adduced, accepted in the light most
        favorable to the Commonwealth, demonstrates the respective



2
    Appellant has not responded to counsel’s petition to withdraw.



                                      -4-
J-S26037-16


      elements of a defendant’s crimes beyond a reasonable doubt,
      the appellant’s convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal citations and quotation marks omitted).

      A person is guilty of 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).        The statute also provides for the following

presumption:

      Any person intentionally concealing unpurchased property of any
      store or other mercantile establishment, either on the premises
      or outside the premises of such store, shall be prima facie
      presumed to have so concealed such property with the intention
      of depriving the merchant of the possession, use or benefit of
      such merchandise without paying the full retail value thereof…,
      and the finding of such unpurchased property concealed, upon
      the person or among the belongings of such person, shall be
      prima facie evidence of intentional concealment….

18 Pa.C.S. § 3929(c).

      The trial court found that the Commonwealth sufficiently proved

Appellant’s violation of subsection 3929(a)(1):

            Here the evidence, viewed in the light most favorable to
      the Commonwealth as the verdict winner, established that
      [Appellant] concealed retail merchandise of Dollar General Store
      in her purse. She transported the concealed merchandise past
      the register area of the store and was approaching the exit door
      when she was stopped and found in possession of the eleven



                                       -5-
J-S26037-16


      items with Dollar General labels, including a Glade air freshener
      that she had been seen carrying in the store. When caught,
      [Appellant] made statements demonstrating both her intent to
      take the merchandise without paying and her knowledge of the
      wrongfulness of her acts.

             This evidence was clearly sufficient to prove [Appellant]
      guilty of the crime of retail theft, beyond a reasonable doubt.

Trial Court Opinion, 9/17/2015, at 4.

      We discern no error in the trial court’s analysis: Ms. Wallace’s

testimony,    including   Appellant’s   statements   acknowledging     her   guilt,

established    that   Appellant   purposefully   concealed    Dollar    General’s

merchandise in her purse with the intention of depriving Dollar General of it

without paying the full retail value.    See, e.g., Commonwealth v. Dent,

837 A.2d 571, 576 (Pa. Super. 2003) (holding evidence was sufficient where

Dent had two sets of fake nails in her handbag when she attempted to exit

the store and fled when informed the police would be called).

      Therefore, we agree with counsel that Appellant’s issue regarding the

sufficiency of the evidence is frivolous. Moreover, we have conducted “a full

examination of the proceedings” and conclude that “the appeal is in fact

wholly frivolous.” Flowers, 113 A.3d at 1248.        Accordingly, we affirm the

judgment of sentence and grant counsel’s petition to withdraw.

      Judgment of sentence affirmed. Petition to withdraw granted.




                                        -6-
J-S26037-16


Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 4/20/2016




                          -7-
