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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

MATHIAS POLHEMUS

                            Appellant                 No. 2817 EDA 2015


              Appeal from the Judgment of Sentence July 10, 2015
                In the Court of Common Pleas of Chester County
              Criminal Division at No(s): CP-15-CR-0001262-2014


BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J.                        FILED NOVEMBER 22, 2016

        Appellant, Mathias Polhemus, appeals from the judgment of sentence

entered on July 10, 2015, in the Court of Common Pleas of Chester County.

We affirm.

        The relevant facts and procedural history are as follows. The

Commonwealth charged Polhemus in the same criminal information with,

among other charges, two counts of retail theft, 18 Pa.C.S.A. § 3929(a)(1).

The counts arise from two separate incidents: one occurring on March 23,

2014, and the other on March 25, 2014.

        On the morning of trial, Polhemus, proceeding pro se, filed pre-trial

motions, including a motion to sever. The trial court heard argument on the
____________________________________________



    Former Justice specially assigned to the Superior Court.
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motions and denied them. Immediately prior to the start of the trial,

Polhemus changed his mind about proceeding pro se and decided to have his

standby counsel represent him. The jury trial commenced.

      The Commonwealth presented evidence that on March 25, 2014,

Polhemus purchased three cans of beer at the supermarket. The employee

who sold the beer was Jackson Hyde. When Polhemus turned to leave after

purchasing the beer, Hyde noticed two bottles of beer protruding from

Polhemus’s pockets. Polhemus left the store. Hyde followed him outside,

observed Polhemus get into the passenger side of a waiting vehicle, and

drive away. Two minutes later, the vehicle returned and Polhemus

attempted to return one of the bottles of beer to Hyde. Hyde informed

Polhemus that he saw him take not one, but two bottles. Polhemus returned

to the car and came back with the other bottle, stating that he forgot to pay

for both. Polhemus attempted to pay for the bottles, but the store manager

declined and returned the bottles to the store stock.

      On March 28, 2014, the supermarket’s management requested the

store’s loss prevention officer to review the surveillance footage of the March

25 incident and from a March 23 incident. The loss prevention officer was

able to identify Polhemus as the perpetrator of a theft on March 23 where he

took beer and other items from the store.

      Polhemus’s defense to the March 25 incident was that he mistakenly

took the two bottles of beer. Since his defense centered on an intent not to


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deprive the supermarket of the beer on that date, he requested the trial

court to instruct the jury as to the meaning of “deprive” as defined in 18

Pa.C.S.A. § 3901. That definitions statute defines “deprive” in pertinent part,

as “[t]o withhold property of another permanently….” The trial court refused

Polhemus’s request. And it duly instructed the jury according to the

Pennsylvania Suggested Standard Criminal Jury Instructions. The jury

convicted Polhemus of all the charges.

      The trial court later imposed an aggregate sentence of imprisonment

of 11½ to 23 months. This timely appeal followed the denial of Polhemus’s

post-sentence motions. On appeal, he raises two issues for our review.

      Polhemus first argues that the trial court erred in denying his motion

to sever.

      [A] motion for severance is addressed to the sound discretion of
      the trial court, and ... its decision will not be disturbed absent a
      manifest abuse of discretion. The critical consideration is
      whether [the] appellant was prejudiced by the trial court’s
      decision not to sever. [The a]ppellant bears the burden of
      establishing such prejudice.

Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010) (citation

omitted) (alterations in original).

      To address Polhemus’s challenge, we must determine:

      [1] whether the evidence of each of the offenses would be
      admissible in a separate trial for the other; [2] whether such
      evidence is capable of separation by the jury so as to avoid
      danger of confusion; and, if the answers to these inquiries are in
      the affirmative; [3] whether the defendant will be unduly
      prejudiced by the consolidation of offenses.


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Commonwealth v. Boyle, 733 A.2d 633, 635 (Pa. Super. 1999) (citation

omitted) (alterations in original). See also Pa.R.Crim.P. 582 and 583.

      Accordingly, our first step is to determine whether the evidence

regarding each incident would be admissible in a separate trial for the other.

It is impermissible to present evidence at trial of a defendant’s prior bad acts

or crimes to establish the defendant’s criminal character or proclivities. See

Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008). Such

evidence, however, may be admissible “where it is relevant for some other

legitimate purpose and not utilized solely to blacken the defendant’s

character.” Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super.

2007) (citation omitted). The Rules of Evidence specifically provide that

“[e]vidence of other crimes, wrongs, or acts may be admitted for other

purposes, such as proving … intent … identity, absence of mistake, or lack of

accident.” Pa.R.E. 404(b)(2).

      Polhemus concedes that evidence of the March 25 incident would be

admissible to prove his identity as the perpetrator of the theft that occurred

on March 23. See Appellant’s Brief, at 11. But he claims that “evidence of

the March 23rd incident would not be admissible in a separate trial on the

March 25th incident.” Id. His “entire defense at trial to the March 25, 2014

incident was that he had mistakenly taken the two bottles of beer….” Id., at

6. Evidence that he took several cans of beer and other items on March 23




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would thus prove intent and absence of mistake or lack of accident,

specifically disproving his defense for the March 25 incident.

      And, importantly, the evidence was not admitted merely to show

Polhemus acted in conformity with a character trait.

      The next step is to determine whether joinder of the offenses for trial

posed a danger of confusing the jury. “Where a trial concerns distinct

criminal offenses that are distinguishable in time, space and the characters

involved, a jury is capable of separating the evidence.” Commonwealth v.

Collins, 703 A.2d 418, 423 (Pa. 1997) (citation omitted).

      Polhemus entirely ignores the danger of confusion in his brief. The

crimes occurred on different days and at different times. The subject matter

at issue for the jury—retail theft—was simplistic. There was no danger of

confusing the jury with evidence of each crime.

      Finally, we must determine whether joinder of the offenses for trial

unfairly prejudiced Talley.

      The “prejudice” of which Rule [583] speaks is not simply
      prejudice in the sense that appellant will be linked to the crimes
      for which he is being prosecuted, for that sort of prejudice is
      ostensibly the purpose of all Commonwealth evidence. The
      prejudice of which Rule [583] speaks is, rather, that which would
      occur if the evidence tended to convict appellant only by showing
      his propensity to commit crimes, or because the jury was
      incapable of separating the evidence or could not avoid
      cumulating the evidence.

Commonwealth v. Newman, 598 A.2d 275, 279 (Pa. 1991) (citation

omitted).


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      The burden for establishing prejudice falls squarely on Polhemus. He

devotes just one sentence in his brief to establishing it: “[T]rying the cases

together, particularly where the entire defense for one incident was mistake,

was overly prejudicial to Appellant and denied him a fair trial.” Appellant’s

Brief, at 11. We have already explained that the evidence regarding each

theft would be admissible in a separate trial for the other. And we noted how

the jury was readily capable of separating the evidence of the two distinct

crimes. We can discern no unfair prejudice to Polhemus in joining the two

offenses for a single trial.

      Polhemus next argues that the trial court erred by failing to instruct

the jury on the definition of “deprive” as defined in 18 Pa.C.S.A. § 3901.

      In reviewing a challenge to the trial court’s refusal to give a
      specific jury instruction, it is the function of this Court to
      determine whether the record supports the trial court’s decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. A jury charge
      will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error. Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties
      and its refusal to give a requested charge does not require
      reversal unless the Appellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)

(citation omitted).


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      Section 3929(a)(1) requires proof that a person “takes possession of,

carries away, transfers or causes to be carried away or transferred,” store

merchandise “with the intention of depriving the merchant of the possession,

use or benefit of such merchandise without paying the full retail value

thereof[.]” (emphasis added). The retail theft statute provides definitions,

see 18 Pa.C.S.A. § 3929(f), but deprive is not a defined term in that

subsection. “Deprive,” however, is defined in Chapter 39 of the Crimes Code.

It has two defined meanings, but we are concerned with just one: “To

withhold property of another permanently….” 18 Pa.C.S.A. § 3901.

      When instructing the jury, the trial court refused Polhemus’s request

to define “deprive” for the jury. In pertinent part, the trial court instructed

the jury as follows:

            I will now define for you the crime of retail theft. The
      defendant has been charged with two counts of retail theft, one
      for each of the dates in question.

           To find the defendant guilty of the offense of retail theft,
      you must find that each of the following four elements has been
      proven beyond a reasonable doubt: first, that the defendant took
      possession of or carried away some item.

           Second, that the item was merchandise offered for sale by
      the merchant, here, Giant Food Stores.

            Third, the Giant was a store or other retail establishment.

           Fourth, that the defendant took possession of or carried
      away the items in question with the intention of depriving the
      merchant of the possession, use or benefit of such merchandise
      without paying full retail value thereof

            If after considering all of the evidence, you are satisfied
      that the Commonwealth has proved beyond a reasonable doubt
      each of the elements I have just stated, you should find the

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     defendant guilty. If you are not satisfied, you must find the
     defendant not guilty.

          Regarding one of the counts of retail theft, evidence has
     been presented that the defendant intentionally concealed,
     unpurchased merchandise of the Giant store while the defendant
     was still inside the store.

            If you find that this evidence has been established to your
     satisfaction beyond a reasonable doubt, you may find that the
     defendant concealed the property with the intention of depriving
     the merchant of the possession, use or benefit of such
     merchandise without paying the full retail value of it.

           You, as the trier of fact, are free to credit or reject the
     inference arising from the concealment and the inference does
     not shift the burden of proof, nor the application of the beyond a
     reasonable doubt standard.

           Whether or not to apply this permissive presumption to the
     facts of this case is left to your discretion and common sense
     based on all of the evidence presented.

           Some definitions relating to retail theft are as follows:
     Conceal means to conceal merchandise so that although there
     may be some notice of its presence, it is not visible through
     ordinary observation.

           Full retail value means the merchant's stated or advertised
     price of the merchandise. Merchandise means any goods,
     chattels, food or wares of any type and description regardless of
     the value thereof.

            Merchant means an owner or operator of any
     retailestablishment or any agent, employee, lessee, officer or
     independent contractor of such owner.

          Store or other retail establishment means a place where
     merchandise is displayed or sold or offered to the public for sale.

N.T., Trial, 5/19/15, at 132-135.

     The trial court’s jury instructions quoted above come from the

pertinent sections of the Pennsylvania Suggested Standard Criminal Jury



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Instructions. See Pa.S.S.Crim.J.I. 15.2939A; 15.2939F; 15.2939G. The

defined terms in the court’s instructions come from Pa.S.S.Crim.J.I.

15.2939G, which are the same as those provided in § 3929(f). The court

declined to define “deprive” for the jury as it found that the definition

provided in § 3901 for that word “is not specific to retail theft.” Trial Court

Opinion, 11/16/15, at 11. The court reasons that “[i]f the definition of

‘deprive’ found in Section 3901 was to be specifically applicable to the crime

of retail theft, it would have been included with the other definitions in

Section 3929(f).” Id.

      There is a problem with the trial court’s reasoning. The definitions

provided in § 3901 apply throughout Chapter 39, “unless the context clearly

indicates otherwise.” 18 Pa.C.S.A. § 3901. The context does not clearly

indicate otherwise in § 3929(a)(1).

      Polhemus argues that the statutory definition of “deprive” is essential

as it contains the word “permanently” whereas the ordinary definition of the

term as defined in most dictionaries does not. See Appellant’s Brief, at 13

(quoting   Webster’s    New   Collegiate   Dictionary   303   (8th   ed.   1980)).

Polhemus’s defense to the March 25 incident was, as mentioned, “that he

took the property by mistake, and the jury should have been permitted to

properly evaluate Appellant’s claim that he did not mean to ‘deprive’ Giant of

the merchandise permanently….” Id.




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      Presumably, the jury utilized the ordinary definition of “deprive” since

the trial court did not define it for them. This ordinary definition misled the

jury, Polhemus maintains, as they “easily could have come to the conclusion

that it was of no consequence whether or not Appellant meant to

permanently deprive Giant of merchandise since they were never instructed

on the correct definition of “deprive” as stated in Chapter 31 [sic].” Id., at

13-14.

      We see no danger of juror confusion. While the trial court’s reasoning

in refusing to instruct the jury on § 3901’s definition of “deprive” does not

pass muster, its jury instruction does; it accurately presented the law to the

jury. The key portion of the charge in this regard is the following: “that the

defendant took possession of or carried away the items in question with the

intention of depriving the merchant of the possession, use or benefit of such

merchandise without paying full retail value thereof.” This language is

quoted verbatim from the Pennsylvania Suggested Standard Criminal Jury

Instructions. See Pa.S.S.Crim.J.I. 15.2939A. It conveys to the jury that an

“intent to deprive is an essential element of the crime of retail theft….”

Commonwealth v. Martin, 446 A.2d 965, 969 (Pa. Super. 1982) (citation

and footnote omitted). And the language further conveys that the intent to

deprive is to permanently deprive the merchant of the property. Cf.

Commonwealth v. Lipford, 331 A.2d 889 (Pa. Super. 1974). It permits of

no reasonable consideration that the taking was temporary.


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     Judgment of sentence affirmed.

     Judge Bowes joins the memorandum.

     Justice Fitzgerald concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/22/2016




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