J-S04042-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HEIDI LOUISA KROEMMELBEIN                  :
                                               :
                       Appellant               :   No. 766 EDA 2019

       Appeal from the Judgment of Sentence Entered October 31, 2018
      In the Court of Common Pleas of Lehigh County Criminal Division at
                       No(s): CP-39-CR-0002177-2018


BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                               FILED MARCH 11, 2020

        Heidi Louisa Kroemmelbein (Appellant) appeals from the judgment of

sentence imposed after a jury convicted her of retail theft and criminal

conspiracy.1 We affirm.

        The trial court summarized the facts presented at trial as follows:

              On February 25, 2018, [Appellant]; her cousin, Danielle
        Kroemmelbein; and three children went shopping at the Wal-Mart
        on Mill Creek Road in Lower Macungie Township, Lehigh County,
        Pennsylvania.     After placing multiple items from various
        departments in their cart, they proceeded to a self-checkout
        register.  The women scanned and paid for 61 items, and
        attempted to leave without paying for 49 items valued at $240.61.
        The women were stopped while exiting by a Wal-Mart loss
        prevention officer.

              Video security footage at the self-checkout captured the
        women’s activities. On the video [Appellant] is seen taking items
        from the cart and scanning them. She places some items in bags,

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1   18 Pa.C.S.A. §§ 3929, 903.
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       some items back in the cart, and hands other items to Danielle.
       On at least two occasions, [Appellant] is seen handing empty
       plastic bags to Danielle. Danielle is seen moving multiple items
       around in the cart, and placing her coat on top of the cart over
       unscanned items. After several bags were full, Danielle is seen
       taking the bags and placing them on top of unscanned items in
       the cart.

Trial Court Opinion, 2/13/19, at 1-2.

       The Commonwealth charged Appellant with the above crimes, and a jury

convicted Appellant following trial on October 31, 2018. That same day, the

trial court sentenced Appellant to 18 months of probation.       Appellant filed

post-sentence motions. The trial court held a hearing on December 5, 2018,

and on February 13, 2019 entered an order denying the motions. Appellant

filed this timely appeal on March 12, 2019. Both the trial court and Appellant

have complied with Pennsylvania Rule of Appellate Procedure 1925.2

       Appellant raises a single issue for our review:

       WHETHER THE EVIDENCE WAS SUFFICIENT                 TO SUSTAIN
       [APPELLANT’S] CONVICTIONS FOR RETAIL                THEFT AND
       CONSPIRACY - RETAIL THEFT.

Appellant’s Brief at 7.

       We review Appellant’s claim mindful of the following:

       Because a determination of evidentiary sufficiency presents a
       question of law, our standard of review is de novo and our scope
       of review is plenary. In reviewing the sufficiency of the evidence,
       we must determine whether the evidence admitted at trial and all
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2On May 13, 2019, the trial court entered an order stating that its “opinion
dated February 13, 2019, addresses the issues raised by [Appellant] in [her]
Concise Statement of Matters Complained of On Appeal” and referencing that
opinion in satisfaction of “the requirements of Pa.R.A.P. 1925(a).” Order,
5/13/19.

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      reasonable inferences drawn therefrom, viewed in the light most
      favorable to the Commonwealth as verdict winner, were sufficient
      to prove every element of the offense beyond a reasonable doubt.
      The facts and circumstances established by the Commonwealth
      need not preclude every possibility of innocence. It is within the
      province of the fact-finder to determine the weight to be accorded
      to each witness’s testimony and to believe all, part, or none of the
      evidence. The Commonwealth may sustain its burden of proving
      every element of the crime by means of wholly circumstantial
      evidence. Moreover, as an appellate court, we may not re-weigh
      the evidence and substitute our judgment for that of the fact-
      finder.

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (brackets

and citation omitted). When reviewing a sufficiency claim, “the entire record

must be evaluated and all evidence actually received must be considered.”

Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super. 2018) (citation

omitted); see also Commonwealth v. Lovette, 450 A.2d 975 (Pa. 1982)

(explaining that a sufficiency claim will not be assessed on a diminished

record, but rather on the evidence actually presented to the finder of fact).

      Instantly, Appellant argues that the evidence was insufficient to prove

“she was actively involved as a partner in the criminal action.” Appellant’s

Brief at 9. The essence of Appellant’s argument is that she did not intend to

steal the items, and her cousin, Danielle, acted alone.     See id. at 10-15.

Appellant asserts:

      the primary circumstantial proof of the hiding of items or
      attempting to obscure them from view were all done by Danielle.
      The question must therefore be whether or not [Appellant’s]
      presence with Danielle is supported by other evidence to show
      that she was part of the attempt to take those 49 items out of the
      store without paying for them or that she even knew that unpaid
      items had not been handed to her from the cart by Danielle. There

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      is her presence there with Danielle and her involvement in
      selecting the items but that was insufficient to show that she
      agreed to or was part of the plan to take items without paying for
      them.

Id. at 15.

      A person is guilty of retail theft if he “takes possession of ... any

merchandise ... offered for sale by any store ... 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.A. § 3929(a)(1) (emphasis

added). 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.A. § 903(a)

(emphasis added).        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).

      Appellant argues that the Commonwealth failed to prove the intent

element of the above crimes beyond a reasonable doubt. However, our review

of the record, particularly the notes of testimony, comports with the trial

court’s summary of the evidence reproduced above. The court reasoned:




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      [T]he video clearly shows [Appellant] turned toward the cart on
      numerous occasions and [she] was interacting with Danielle the
      entire time. [Appellant] was the only one scanning items; some
      items she placed in bags and some items she handed to Danielle;
      and she handed empty bags to Danielle. Based on the conduct of
      [Appellant], there was certainly enough circumstantial evidence
      to show that [Appellant] intended to deprive Wal-Mart of
      merchandise and the she conspired with Danielle to do so.

Trial Court Opinion, 2/13/19, at 3.

      Upon review, we agree that the evidence was sufficient to support the

jury’s verdicts. Prior to trial, the court instructed the jury, among other things,

“to keep an open mind” and “use your understanding of human nature and

common sense.”      N.T., 10/31/18, at 12.      Thereafter, the Commonwealth

presented the testimony of Walmart’s loss prevention professional, Keirrie

Fichter.   Ms. Fichter testified that she first noticed Appellant and Danielle

because “they weren’t really paying attention to prices,” and “were just going

along, pulling stuff off the shelves . . . and they also had a baby blanket with

them and the baby blanket was like draped over the top of the cart, which

then I continued to follow them and then they . . . used the blanket to cover

up some merchandise.” Id. at 28. Ms. Fichter testified that Appellant and

Danielle “switched off and on within the store of who was pushing and who

wasn’t pushing.” Id. at 30. She also stated, “[b]oth of them were selecting

merchandise and putting it in the same shopping cart” and both “were just

throwing it in the cart.” Id. at 32-33, 59. Ms. Fichter followed “right behind”

the women to the self-checkout, where Appellant “continue[d] to scan

merchandise” and was “the only one scanning the items.” Id. at 34-35. After

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Ms. Fichter observed that the women did not pay for all of the items, and

proceeded to exit the store, she approached them and identified herself as a

loss prevention employee. Id. at 36. Ms. Fichter testified that the women

checking out was documented on video, which — along with the receipt

showing that the women only paid for 51 of 110 items in their cart — the

Commonwealth introduced into evidence.           Id. at 41; Exhibits C-1, C-3.3

Notably, Appellant’s counsel objected during the Commonwealth’s questioning

of Ms. Fichter, stating: “Objection. She is asking what she sees on the video.

That is the jury’s province.” Id. at 49-50 (emphasis added). In addition,

Appellant did not present any defense witnesses.

       On this record, we find no merit to Appellant’s claim that the evidence

was insufficient to show her intent to deprive Walmart of merchandise, or her

agreement with Danielle to do so. As Appellant’s counsel recognized during

trial, “[i]t is within the province of the fact-finder to determine the weight to

be accorded to each witness’s testimony and to believe all, part, or none of

the evidence.” Palmer, 192 A.3d at 89.

       Judgment of sentence affirmed.




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3Exhibit C-2 is Walmart’s documentation of the unscanned items and their
value of $240.64. N.T., 10/31/18, at 44.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/20




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