J-S06007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

KENNETH ALLEN

                            Appellant                  No. 2589 EDA 2016


               Appeal from the Judgment of Sentence July 13, 2016
                In the Court of Common Pleas of Delaware County
               Criminal Division at No(s): CP-23-CR-0007335-2015


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

MEMORANDUM BY MOULTON, J.:                               FILED JUNE 19, 2017

       Kenneth Allen appeals from the July 13, 2016 judgment of sentence

entered in the Delaware County Court of Common Pleas following his

conviction for retail theft.1     Allen’s appellate counsel has filed an Anders2

brief and a petition to withdraw from representation. We affirm and grant

counsel’s petition to withdraw.

       This case stems from a November 29, 2015 retail theft.           At trial,

Anthony Sapp testified that at the time of the offense he was working as a

loss prevention officer for Burlington Coat Factory in Upper Darby.        N.T.,
____________________________________________


       *
           Former Justice specially assigned to the Superior Court.
       1
           18 Pa.C.S. § 3929(a)(1).
       2
           Anders v. California 386 U.S. 738 (1967).
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5/19/16, at 22-23.     Sapp testified that at approximately 2:00 p.m. on

November 29, 2015, he observed Allen walk into the store and place four

watches, a bottle of fragrance, and a bottle of cologne into a shopping cart.

Id. at 24-27. Sapp then saw Allen ride the elevator to the ground floor. Id.

at 27-28. Sapp used the escalator to follow Allen downstairs and “to give

him customer service.” Id. at 28. Sapp stated that when he arrived at the

ground floor, he located Allen in a fitting room. Id. at 28-29. Sapp asked

Allen if he needed help, to which Allen responded “no.” Id. at 49-50. Sapp

observed Allen exit the fitting room empty-handed and take the escalator

upstairs.   Id. at 30-31.    Sapp then observed empty watch boxes and

perfume cases inside the fitting room. Id. at 31.

      Sapp testified that he watched Allen walk past the registers and

approach the front entrance to the store. Id. at 33. Before Allen passed the

front door, Sapp approached him and asked if he knew anything about the

empty boxes in the fitting room. Id. at 33-34. Allen responded that he did

not want any trouble, and Sapp took him into the loss prevention office. Id.

at 34, 52. When Sapp asked Allen to return any store merchandise he had

on his person, Allen removed three watches from the inside of his pants. Id.

at 34-35. Sapp contacted the Upper Darby Police Department and, within

five minutes, Officer James Fiore arrived. Id. at 36.

      Officer Fiore testified that when he arrived at the loss prevention

office, he spoke with Allen and conducted a pat-down of Allen’s person,

which revealed other items in Allen’s pants, as well as another watch on

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Allen’s wrist. Id. at 65-67.

       On cross-examination, Sapp explained that he had made a compact

disc (“CD”) of the surveillance video but that another loss prevention officer

accidentally discarded it.       Id. at 55, 58.    Sapp further explained that he

could not make an additional CD because the server deletes the recording

after 60 days and he did not learn that the CD had been discarded until after

the 60 day period. Id. at 56-57.

       On May 19, 2016, a jury convicted Allen of retail theft. On July 13,

2016, the trial court sentenced Allen to 16 to 32 months’ incarceration,

followed by three years’ probation.            Allen did not file a post-sentence

motion. On August 11, 2016, Allen filed a timely notice of appeal.

       Because counsel has filed a petition to withdraw pursuant to Anders

and its Pennsylvania counterpart, Santiago,3 we must address counsel’s

petition     before   reviewing     the   merits   of   Allen’s   underlying   claims.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007).                      We

first address whether counsel’s petition to withdraw satisfies the procedural

requirements of Anders. To be permitted to withdraw, counsel must:

            1) petition the court for leave to withdraw stating that,
            after making a conscientious examination of the record,
            counsel has determined that the appeal would be frivolous;
            2) furnish a copy of the brief to the defendant; and 3)
            advise the defendant that he or she has the right to retain

____________________________________________


       3
           Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).



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         private counsel or raise additional arguments that the
         defendant deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa.Super. 2013) (en

banc).

      Here,   appellate   counsel   has    stated     that   after    a      conscientious

examination of the record, he “found no issues to raise in this appeal and he

believes this appeal to be wholly frivolous.” App. to Withdraw, 11/3/16, at

1. Appellate counsel furnished a copy of the Anders brief to Allen, as well

as a letter advising him that “[i]f you have any issues that you wish to bring

to the Court’s attention, you must do it now.          You may submit your own

brief o[r] hire another attorney to do it for you.”          Ltr. to Allen, 11/30/16.

We conclude that counsel’s petition to withdraw has complied with the

procedural dictates of Anders.

      We   next   address   whether       counsel’s    Anders        brief    meets   the

requirements established by the Pennsylvania Supreme Court in Santiago.

The brief 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.




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       Here, appellate counsel has provided a summary of the procedural

history and the facts with appropriate citations to the record. Anders Br. at

4-6.   Counsel’s brief states that he conducted a thorough review of the

record and determined that any appeal would be frivolous, and set forth his

reasons for that conclusion. Id. at 8-9. Accordingly, appellate counsel has

substantially complied with the requirements of Anders and Santiago.

       Allen has not filed a pro se brief or a counseled brief with new,

privately-retained counsel.    We, therefore, review the issue raised in the

Anders brief.

       Allen raises the following issue: “Did the Commonwealth fail to prove

[Allen] guilty of the offense of Retail Theft because it failed to produce video

footage showing him committing the offense when Defense [sic] witness

Anthony Sapp testified it had been ‘preserved’ at the preliminary hearing in

this case?” Anders Br. at 3.

       Counsel’s issue presented and the brief’s argument section appear to

commingle two separate arguments:        (1) the evidence was insufficient to

convict Allen because of the Commonwealth’s failure to produce the video;

and (2) the destruction of the video violated his due process rights.

       First, Allen contends that, without the surveillance video, the evidence

was insufficient to support his conviction.

       We apply the following standard when reviewing a sufficiency of the

evidence claim:




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         [W]hether 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. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (quoting

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa.Super. 2014)) (some

alterations in original).

      We conclude that the Commonwealth presented sufficient evidence for

the jury to find every element of retail theft beyond a reasonable doubt.

Sapp testified that he observed Allen remove the watches and the fragrance

and cologne bottles from the shelves and take them into the fitting room.

Sapp further testified that when Allen left the fitting room, Sapp saw empty

boxes inside. As Allen walked toward the front door, Sapp stopped him and

took him to the loss prevention office where Allen removed stolen

merchandise from his person.      Officer Fiore also testified that when he

arrived, he found more stolen items on Allen. This evidence was sufficient,

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and the absence of a surveillance video does not alter this conclusion. See

Commonwealth v. Dent, 837 A.2d 571, 576-77 (Pa.Super. 2003) (holding

evidence of retail theft sufficient without video); Commonwealth v.

Steward, 762 A.2d 721, 723 (Pa.Super. 2000) (holding video of theft was

not “crucial evidence” when security officer “observe[d] appellant’s action

contemporaneously with the crime”).

       Second, Allen claims a violation of his due process rights because the

Commonwealth failed to preserve the surveillance video.4 The Pennsylvania

Supreme      Court    has    explained         that   there   are    two   categories   of

“constitutionally guaranteed access [to evidence]:                    evidence that is

exculpatory     and    material,    and    evidence      that   is   potentially   useful.”

Commonwealth v. Chamberlain, 30 A.3d 381, 402 (Pa. 2011).

       The first category implicates a Brady/Agurs5 claim, which entitles

“defendants [to] access . . . certain kinds of evidence prior to trial, so they

may ‘be afforded a meaningful opportunity to present a complete defense.’”

Chamberlain, 30 A.3d at 402 (quoting Commonwealth v. Snyder, 963

A.2d 396, 401 (Pa. 2009)). “This guarantee of access to evidence requires

the prosecution to turn over, if requested, any evidence which is exculpatory


____________________________________________


       4
     We note that nothing in the certified record suggests that the
Commonwealth was ever in possession of the video.
       5
       Brady v. Maryland, 373 U.S. 83 (1963); United States v. Agurs,
427 U.S. 97 (1976).



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and material to guilt or punishment, and to turn over exculpatory evidence

which might raise a reasonable doubt about a defendant’s guilt, even if the

defense fails to request it.”     Id. (internal citations omitted).    In this

situation, a defendant need not show bad faith. Id.

      The second category “involves evidence that is not materially

exculpatory, but is potentially useful, that is destroyed by the state before

the defense has an opportunity to examine it.” Id. “When the state fails to

preserve evidence that is ‘potentially useful,’ there is no federal due process

violation ‘unless a criminal defendant can show bad faith on the part of the

police.’”   Id. (quoting Arizona v. Youngblood, 488 U.S. 51, 58 (1988)).

“Potentially useful evidence is that of which ‘no more can be said than that it

could have been subjected to tests, the results of which might have

exonerated the defendant.’” Id. (quoting Youngblood, 488 U.S. at 57).

      We “must first determine whether the missing evidence is materially

exculpatory or potentially useful.”   Id.   Because Allen does not claim that

the surveillance video had exculpatory value, and based on the evidence

presented, we have no reason to believe it would be materially exculpatory,

we focus on the second category – that is, whether the Commonwealth

withheld potentially useful information and acted in bad faith.

      Even assuming that the video might have been useful, Allen has not

established that the Commonwealth destroyed the evidence in bad faith.

First, nothing in the certified record suggests that the Commonwealth was

ever in possession of the video.      Second, the relevant testimony at trial

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would not support a finding of bad faith on anyone’s part. During trial, Sapp

testified about the loss of the video:

         [COMMONWEALTH]: Do you know how the CD was -- the
         DVD was discarded, how it was thrown out? What were
         the circumstances?

         [SAPP]: We had a prior visit maybe not too long ago by
         our regional manager.       So we were doing like some
         cleaning in the office just to make sure it looked squared
         away by the time the visit came. And then I guess one of
         the [loss prevention officers] just threw it away.

                                         ...

         [COMMONWEALTH]: So at the time you suspect it was
         discarded there were other people in loss prevention
         capacity?

         [SAPP]: Yes.

         [COMMONWEALTH]: How many others?

         [SAPP]: There’s two others.

         [COMMONWEALTH]: And did you approach them and ask
         them if they were aware of [sic] this DVD was thrown out?

         [SAPP]: Yes.

         [COMMONWEALTH]: And did they recall the event?

         [SAPP]: Yes.

         [COMMONWEALTH]: Did you have any prior knowledge of
         [Allen], did you know him?

         [SAPP]: No.

         [COMMONWEALTH]: Do you have any reason to try to
         abscond or try to conceal the evidence in this case?

         [SAPP]: No.

         [COMMONWEALTH]: Did you -- after finding out that the
         DVD was discarded did you attempt to go back to the hard
         drive to retrieve the information a second time?

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           [SAPP]: Yes. I went to the server that it should have
           been on and it was already too late to record again.

           [COMMONWEALTH]:            And by saying too late what had
           transpired?

           [SAPP]: It was -- like I said it was 60 days that it should
           have been recorded but it wasn’t. It’s 60 days that you
           have until it gets deleted.

           [COMMONWEALTH]: So you’re confident you didn’t have
           access to that tape any further?

           [SAPP]: Correct.

           [COMMONWEALTH]: Or that information, I should say.

           [SAPP]: Correct.

N.T., 5/19/16, at 58-59.         Sapp’s uncontradicted testimony establishes the

tape was not destroyed in bad faith.6
____________________________________________


       6
       We further note that the trial court instructed the jury on the missing
evidence:

           THE COURT: . . . There’s been a discussion about the
           DVD that was not produced in this case.            There’s a
           question of what weigh [sic] if any you should give to the
           failure of Burlington Coat Factory to produce the DVD in
           question. If three factors are present and there is no
           satisfactory explanation for a party failure to produce an
           item the jury is allowed to draw a common sense inference
           that the evidence would have been unfavorable to that
           party. The three necessary factors are, first, that the item
           is available to that party and not for the others. Second, it
           appears that the item contains or shows special
           information material to the issue. And third, the item
           would not be merely cumulative evidence. Let me talk to
           counsel at sidebar at this point.

                                           ...

           THE COURT: Ladies and gentlemen, with respect to the
           missing item I want to talk one further -- add something
(Footnote Continued Next Page)


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      Thus, we conclude that Allen has failed to establish that the video was

potentially useful and that the Commonwealth acted in bad faith.

      Judgment of sentence affirmed.                Petition for leave to withdraw as

counsel granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/19/2017




                       _______________________
(Footnote Continued)

          further to that. That is if you find the three factors are
          present and there is no satisfactory explanation for
          Burlington/Commonwealth failure to produce the item you
          may infer, if you chose to do so, that would have been
          evidence unfavorable to Burlington/Commonwealth in this
          matter.

N.T., 5/19/16, at 96-98.



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