J-S57010-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

KAREEM MEARS

                         Appellant                   No. 3386 EDA 2016


          Appeal from the Judgment of Sentence October 5, 2016
           In the Court of Common Pleas of Montgomery County
            Criminal Division at No(s): CP-46-CR-0002039-2015


BEFORE: PANELLA, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, J.                       FILED NOVEMBER 03, 2017

      After a bench trial, the court convicted Appellant, Kareem Mears, of

receiving stolen property and attempted theft of two comforters from a retail

store. On appeal, Means only argues that the evidence at trial was

insufficient to establish he intended to take the comforters from the store

without paying for them. After careful review, we conclude the evidence at

trial was sufficient to allow the finder of fact to infer Means was attempting

to steal the comforters. We therefore affirm.

      Our standard of review for a challenge to the sufficiency of the

evidence is to determine whether, when viewed in a light most favorable to

the verdict winner, the evidence at trial and all reasonable inferences

therefrom are sufficient for the trier of fact to find that each element of the
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crimes    charged      is   established        beyond   a   reasonable    doubt.   See

Commonwealth v. Dale, 836 A.2d 150, 152 (Pa. Super. 2003).

       “[T]he facts and circumstances established by the Commonwealth

need not preclude every possibility of innocence.” Commonwealth v.

Bruce, 916 A.2d 657, 661 (Pa. Super. 2007) (citation omitted). Any doubt

raised as to the accused’s guilt is to be resolved by the fact-finder. See

Commonwealth v. Kinney, 863 A.2d 581, 584 (Pa. Super. 2004). “As an

appellate court, we do not assess credibility nor do we assign weight to any

of the testimony of record.” Id. (citation omitted). Therefore, we will not

disturb the verdict “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.” Bruce, 916 A.2d at 661 (citation omitted). Evidence is weak

and inconclusive “[w]hen two equally reasonable and mutually inconsistent

inferences    can    be     drawn    from      the   same   set   of   circumstances…”

Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946).

       In the instant case, Mears was convicted of two crimes: receiving

stolen property (“RSP”), and attempted retail theft.1 For the RSP conviction,


____________________________________________


1A person is guilty of criminal attempt when, acting with an intent to commit
a crime, performs an act that is a substantial step towards the commission
of the crime. See 18 Pa.C.S.A. § 901(a) Mears does not independently
address the applicability of § 901(a) in his argument. In any event, we
conclude the evidence capable of supporting a finding that Mears intended to
deprive the retail store of its possession of the comforters is equally capable
(Footnote Continued Next Page)


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the Commonwealth was required to prove Mears “intentionally … retain[ed]

… movable property of another knowing that it ha[d] been stolen, or

believing that it ha[d] probably been stolen ….” 18 Pa.C.S.A. § 3925(a). In

order to sustain a conviction for retail theft, the Commonwealth was

required to prove Mears took “possession of, carrie[d] away, [or] cause[d] 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[.]” 18 Pa.C.S.A. §

3929(a)(1). Thus, both crimes require the Commonwealth to establish Mears

acted with an intent to deprive the retail store of its rights to the comforters.

      Mears argues the evidence at trial was equally capable of supporting

an inference he merely forgot that he had not paid for the comforters when

he walked out the door. He contends he realized his mistake as he stepped

outside the store, and immediately attempted to return to the store.

      A review of the testimony at trial demonstrates Mears is incorrect in

his assessment. Michael Mowery was an asset protection manager employed

by Macy’s. See N.T., Bench Trial, 6/20/16, at 10. In February, 2015, he was

concerned by a recent string of “door hits,” or incidents where thieves would

stop their vehicle outside a store entrance, enter the store and take items

from a display near the door, run back out to their waiting vehicle, and
(Footnote Continued) _______________________

of supporting a finding that Mears intended to commit retail theft of the
comforters.



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quickly drive away. See id., at 11-12. Thieves using this tactic had

successfully evaded capture by store security. See id., at 12.

      On February 7, he watched as Mears stopped his vehicle in the fire

lane outside an entrance to the store. Mears activated his hazard signals and

walked into the Macy’s. See id, at 13. Mears walked into the store and

picked up two comforters from a display near the door. See id., at 14.

Mowery notified, via radio, Officer Andrew Gibbs of the Abington Police

Department that he suspected a door hit was in progress. See id., at 14,

28-29.

      Officer Gibbs testified he responded by parking down the roadway

from Mears’s stopped vehicle. See id., at 29. He parked so that he could

observe Mears’s vehicle, but that Mears would be unable to see Gibbs’s

marked police vehicle until he left the store. See id.

      Mowery testified he watched Mears walk quickly through the theft

detectors in front of the first set of doors leading outside the store. See id.,

at 15. Mears then proceeded through both sets of doors leading outside. See

id.

      Officer Gibbs testified he watched as Mears walked outside the store

with the comforters in hand. See id., at 29. Mears looked right at Gibbs’s

marked police vehicle and walked back into the store. See id. After some

discussion between Mears, Mowery, and Officer Gibbs, Officer Gibbs arrested

Mears and charged him with attempted retail theft and RSP. See id., at 30.


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      Crediting the testimony of the Commonwealth’s witnesses, as we

must, we cannot conclude this evidence was as supportive of Mears’s

innocence as it was of his guilt. Mears illegally stopped his vehicle near the

exit of the store, walked in, took two comforters and walked directly back

out of the store. These actions fit the pattern of a strategy for retail theft

that security personnel and police officers identified as common.

      While Mears offers he merely forgot he hadn’t paid for the comforters,

this inference is certainly not equally justified with the inference that Mears

was intending to steal the comforters. He argues this case is controlled by

Commonwealth v. Shapiro, wherein a panel of this Court held that intent

was not established given it was undisputed the defendant made no attempt

to conceal the items he was charged with stealing as he left the store. See

297 A.2d 161, at 162-163. However, according to both Mowery and officer

Gibbs, concealment was not a necessary part of the scheme, speed was.

See N.T., Bench Trial, 6/20/16, at 12, 27. Shapiro is easily distinguishable.

      The evidence at trial was sufficient to establish Mears intended to

deprive Macy’s of its rights to the two comforters. Mears’s sole issue on

appeal merits no relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/3/2017




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