J-S84040-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                      v.

RAYMOND CHARLES CANTWELL, JR.

                           Appellant                   No. 1248 EDA 2016


             Appeal from the Judgment of Sentence March 23, 2016
        in the Court of Common Pleas of Bucks County Criminal Division
                       at No(s): CP-09-CR-0007644-2015

BEFORE: OLSON, SOLANO, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                    FILED NOVEMBER 16, 2016

        Appellant, Raymond Charles Cantwell, Jr., appeals from the judgment

of sentence entered in the Bucks County Court of Common Pleas, following a

jury trial1 and his conviction for retail theft.2      Appellant contends the

evidence was insufficient to convict him of retail theft. We affirm.

        The trial court summarized the facts of this case as follows:

           On November 25, 2015, [Appellant] was observed on
           video surveillance selecting several items from the shelves
           of the Home Depot . . . by John Baran, the store’s head of
           loss prevention. When he was first observed, [Appellant]
           had an item identified as a “mailbox in a box” in his
           shopping cart. [Appellant] was seen entering what was
           identified as the “tool corral” of the store, the area where

*
    Former Justice specially assigned to the Superior Court.
1
  We note that the notes of testimony from the jury trial are erroneously
dated March 22, 2014.
2
    18 Pa.C.S. § 3929(a)(1).
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         the high-priced tools and related items are displayed.
         [Appellant] selected two items, a Milwaukee brand power
         tool valued at $79 and Milwaukee brand batteries for
         power tools valued at $99, and placed them in his cart.
         After observing what he believed to be suspicious
         behavior, Mr. Baran then began to follow [Appellant] as he
         moved around the store. In Aisle 12, [Appellant] selected
         a thermostat from a shelf and placed it in his cart. He
         then moved down Aisle 11 and proceeded to the garden
         department. While there, [Appellant] took the Milwaukee
         batteries from his cart and attempted to remove the
         security sensor from the Milwaukee batteries. He was
         unsuccessful.     He then placed both of the Milwaukee
         products that he had in his possession in his jacket, zipped
         the jacket approximately three quarters of the way up and
         moved into the greenhouse section of the garden
         department. When Mr. Baran followed, [Appellant] walked
         behind a large cart of plants, removed the items from his
         jacket and placed them on the shelf among the plants. He
         then proceeded to the cashier at the exit of the garden
         department and paid for the mailbox in the box. The
         thermostat that [Appellant] had previously placed in the
         cart was no longer present and was never located. After
         [Appellant] left the store, Mr. Baran identified himself and
         asked [Appellant] to return to the store. [Appellant] was
         initially confrontational and refused to comply. He then
         attempted to flee on foot. Mr. Baran then retrieved the
         two power tool items concealed in the greenhouse and
         called the police. While Mr. Baran and [Appellant] waited
         for the police to arrive, [Appellant] told Mr. Baran that he
         never picked up any Milwaukee products. He later offered
         to pay for those items.

Trial Ct. Op., 6/21/16, at 1-2 (footnotes omitted).

      Appellant was sentenced to one to two years’ imprisonment.         This

timely appeal followed.   Appellant filed a court ordered Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.          The trial court filed a

responsive opinion.

      Appellant raises the following issue for our review:


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         A. Whether the evidence was sufficient to prove the
         Appellant guilty of retail theft beyond a reasonable doubt
         where the Commonwealth did not prove that Appellant did
         take possession of, carry away, transfer or cause to be
         carried away or transferred, merchandise displayed, held
         stored or offered for sale by Home Depot with the intention
         of depriving the merchant of the possession, use or benefit
         of such merchandise without paying full retail value.[3]

Appellant’s Brief at 4.

      Appellant argues the evidence was insufficient to prove beyond a

reasonable doubt that he was guilty of retail theft because he lacked “the

requisite intent to deprive the merchant of any items.” Appellant’s Brief at

11.4 He avers the Commonwealth failed to establish that Appellant had “the


3
  Appellant did not file post-sentence motions. However, challenges to the
sufficiency of the evidence can be raised for the first time on appeal. See
Pa.R.Crim.P. 606(A)(7).
4
  We consider whether Appellant also challenges the weight of the evidence.
Appellant contends that “[t]he Commonwealth’s evidence presented through
the loss prevention employee is incredible and unbelievable.” Appellant’s
Brief at 13.

     In Commonwealth v. DeJesus, 860 A.2d 102 (Pa. 2004), the
Pennsylvania Supreme Court opined:

         The [a]ppellant’s claim challenges the weight, not the
         sufficiency, of the evidence. The weight of the evidence is
         exclusively for the finder of fact, which is free to believe
         all, part, or none of the evidence, and to assess the
         credibility of the witnesses.       Questions concerning
         inconsistent testimony . . . go to the credibility of the
         witnesses. This Court cannot substitute its judgment for
         that of the jury on issues of credibility.

Id. at 107 (citations omitted and emphases added). Instantly, Appellant
argues the testimony of the Commonwealth’s witness was not credible. See



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intent to permanently deprive the merchant of the value of the merchandise

concealed on his person.” Id. at 13.

     “A claim challenging the sufficiency of the evidence is a question of

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).

              As this case involves a question of law, our scope of
        review is plenary. Our standard of review is de novo.

                                 *     *   *

           [T]he critical inquiry on review of the sufficiency of the
        evidence to support a criminal conviction . . . does not
        require a court to ask itself whether it believes that the
        evidence at the trial established guilt beyond a reasonable
        doubt. Instead, it must determine simply whether the
        evidence believed by the fact-finder was sufficient to
        support the verdict. . . .

                                 *     *   *

            When reviewing the sufficiency of the evidence, an
        appellate court must determine whether the evidence, and
        all reasonable inferences deducible from that, viewed in
        the light most favorable to the Commonwealth as verdict
        winner, are sufficient to establish all of the elements of the
        offense beyond a reasonable doubt.




id. Appellant, however, failed to raise his weight claim before the trial
court; therefore, he has waived it on appeal. See Pa.R.Crim.P. 607(A);
Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding
weight claim waived where the “[a]ppellant did not make a motion raising a
weight of the evidence claim before the trial court as the Pennsylvania Rules
of Criminal Procedure require”).    Appellant did not raise a weight of the
evidence claim in his Rule 1925(b) statement, and thus, he waived the
claim. See Pa.R.A.P. 1925(b)(4)(vii) (holding “[i]ssues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.)




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Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007)

(citations and quotation marks omitted). “The Commonwealth may sustain

its burden of proving every element of the crime beyond a reasonable doubt

by means of wholly circumstantial evidence.” Commonwealth v. Caban,

60 A.3d 120, 132 (Pa. Super. 2012) (citation omitted).

     Section 3929 of the Crimes Code defines retail theft:

        (a) Offense defined.─A person is guilty of a retail theft if
        he:

           (1) takes possession of, carries away, transfers or
           causes to be carried away or transferred, any
           merchandise[5] 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). There is a presumption that

        [a]ny person intentionally concealing[6] 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 within the
        meaning of subsection (a), and the finding of such
        unpurchased property concealed, upon the person or

5
  Merchandise is defined as follows: “Any goods, chattels, foodstuffs or
wares of any type and description, regardless of the value thereof.” 18
Pa.C.S. § 3929(f).
6
  The term conceal is statutorily defined as follows: “To conceal merchandise
so that, although there may be some notice of its presence, it is not visible
through ordinary observation.” Id.



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           among the belongings of such person, shall be prima facie
           evidence of intentional concealment, and, if such person
           conceals, or causes to be concealed, such unpurchased
           property, upon the person or among the belongings of
           another, such fact shall also be prima facie evidence of
           intentional concealment on the part of the person so
           concealing such property.

Id. § 3929(c).      “If a person conceals merchandise either in a store or

outside of it, without first having paid for it, it reasonably follows that he

intends to deprive the merchant of the item(s).”            Commonwealth v.

Martin, 446 A.2d 965, 968 (Pa. Super. 1982).

      In Commonwealth v. Jones, 528 A.2d 1360 (Pa. Super. 1987), this

Court found the defendant had the intent to deprive the merchant of certain

items. The Jones Court opined:

              The evidence received at trial established that [the
           defendant] concealed the unpurchased meat under his
           coat.    The Commonwealth’s witness testified that he
           observed appellant picking up two or three pieces of meat
           and that when he started following appellant down the
           aisle, appellant had already “put the meat inside his coat
           and his coat was maybe zipped halfway up.” The witness
           then described appellant as having “a big bulge you could
           see” under his coat. From this testimony, the trial court
           could presume that appellant harbored the requisite intent.

Id.   at    1362   (citations   omitted).    “Further,   [f]light   does   indicate

consciousness of guilt, and a trial court may consider this as evidence, along

with other proof, from which guilt may be inferred.”         Commonwealth v.

Dent, 837 A.2d 571, 576 (Pa. Super. 2003) (quotation marks and citation

omitted).

      In the case sub judice, the trial court opined:


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              Viewing all the evidence admitted at trial in the light
           most favorable to the Commonwealth as verdict winner,
           the evidence clearly established each element of the crime
           of retail theft.   . . .   The property in question, the
           Milwaukee power tool and batteries clearly constitute
           “merchandise” within the meaning of the retail theft
           statute. The evidence established that merchandise was
           “offered for sale” at Home Depot, a retailer of home
           improvement and construction products.            The only
           remaining element question is whether there was sufficient
           evidence for the jury to conclude that [Appellant] intended
           to deprive the store of its property without paying for it.
           In meeting its burden of proof with regard to this element,
           the Commonwealth is not required to show that the
           merchandise was removed from the building or that
           [Appellant] passed all points of sale. . . . [T]he intent to
           deprive may be inferred from a defendant’s act of
           concealing the property, either on his person or within the
           store. Here, [Appellant] concealed items inside his jacket.
           . . . The jury’s finding of intent was also supported by
           evidence [Appellant] attempted to remove the security
           sensor from one of the items, that he conceal[ed] both
           items in another area of the store after store security
           began to follow him and that, when confronted by store
           security, he attempted to flee the scene.

Trial Ct. Op. at 4-5 (citations and footnotes omitted). We agree no relief is

due.

       At trial, Mr. Baran, the store’s head of loss prevention, testified as

follows:

           [The Commonwealth]: What does [Appellant] do when he
           gets to Aisle 2, the garden department?

           A: When he gets to Aisle 2, he stands between two
           displays that are in the aisle in an attempt to conceal
           himself and begins trying to remove the security sensor
           from one of the Milwaukee items.

           Q: And are you watching him do all this on the floor?



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       A: Yes. I am at the opposite end of the aisle.

       Q: Do you recall which item it was that he was trying to
       remove the security item?

       A: It was the batteries valued at $99.

                               *       *   *

       Q: So basically what is the purpose of that security tag?

       A: To prevent or deter theft.

                               *       *   *

       Q: Was [Appellant] successful in trying to pull that off by
       himself?

       A: No, he was not.

       Q: What did he do then?

       A: Walked several more feet carrying both of                the
       Milwaukee products and concealed them in his jacket.

       Q: Could you describe, what do you mean by that?

       A: Basically place them inside his jacket, whether in a
       pocket or something, and then zipped his coat up three
       quarters of the way.

       Q: And then what did you [sic] do from there?

       A: Then he proceeds to the outside greenhouse of the
       garden department.

                               *       *   *

       Q: Is there anyone else outside of that greenhouse section
       of the store when [Appellant] goes out there?

                               *       *   *

       A: No, there was nobody else out there.


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                                *    *    *

       Q: . . . What happened in the greenhouse section of the
       store?

       A: I followed him out . . . . I observed him walk behind a
       large cart of plants . . . .

           This cart is approximately 6 feet wide by about 7 feet
       tall, full of plants. I observed him walk behind there, at
       which time I came around to get a different angle so I
       could see him, and then watched him remove the item
       from his jacket and place it in the plants.

                                *    *    *

       Q: From the place where [Appellant] placed the power
       tools, about how much further is it towards a register, a
       register?

       A: . . . I would say approximately 30 feet, 35 feet. . . .

       Q: And is that the exit out of the store, also?

       A: Yes. That is one of the exits, yes, sir.

                                *    *    *

       Q: . . . Did you confront [Appellant] outside of the store?

       A: Yes. As he walked out of the garden gates . . . .

       Q: What happened during that incident?

       A: I walked in front of him, identified myself as loss
       prevention, asked him to come back into the store. He
       immediately became confrontational.     Probably spent
       maybe approximately ten seconds asking him repeatedly
       to come back in the store.     He refused, and then
       attempted to run from me.

                                *    *    *

       Q: Where did he try to go?


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        A: He attempted to run to my right. I was able to grab
        him by the jacket. We scuffed around, ended up falling to
        the ground.      And then with the assistance of two
        customers I was able to handcuff him and then escort him
        back into the store.

N.T., 3/22/16, at 76-81, 87-88.

     Instantly, Appellant concealed merchandise on his person and in the

store which was sufficient evidence of his intent to deprive the merchant of

the items. See 18 Pa.C.S. § 3929(c); Jones, 528 A.2d at 1362; Martin,

446 A.2d at 968.      Appellant attempted to flee which is indicative of

consciousness of guilt. See Dent, 837 A.2d at 576. Viewing the evidence in

the light most favorable to the Commonwealth as verdict winner, we find the

evidence was sufficient to convict Appellant of retail theft. See 18 Pa.C.S. §

3929(a)(1); Ratsamy, 934 A.2d at 1237; Caban, 60 A.3d at 132.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2016




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