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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

ELIZABETH DALTON

                         Appellant                  No. 89 MDA 2016


         Appeal from the Judgment of Sentence December 2, 2015
              In the Court of Common Pleas of Berks County
           Criminal Division at No(s): CP-06-CR-0000809-2015


BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                     FILED DECEMBER 09, 2016

      Appellant, Elizabeth Dalton, appeals from the judgment of sentence

entered following a bench trial in the Berks County Court of Common Pleas.

Dalton argues that the evidence adduced at trial was insufficient to support

her convictions and that the verdict was against the weight of the evidence.

After careful review, we affirm.

      The relevant facts and procedural history are as follows. On December

1, 2014, Rachel Merkel, asset protection manager for Target in Exeter, Berks

County, Pennsylvania, discovered that baby formula was missing from the

store. Merkel reviewed the previous day’s security footage and observed that

a man, later identified as Eric Carr, had removed all of the baby formula

from the shelf and concealed it in a tote. Merkel then began to track Carr’s

movements throughout the store, and determined that Carr entered the
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Target alone and went directly to the health and beauty section. Dalton and

her husband, Larry Brown, were already located in that section of the store.

Before Carr entered the health and beauty section, Dalton appeared to ask a

nearby Target employee a question, and Dalton and the Target employee

walked away together. As Carr entered the health and beauty section, Brown

met Carr in the toothpaste aisle. Brown and Carr removed teeth whitening

products from a shelf and concealed the items in Carr’s tote. Dalton, Brown,

and Carr then met in the shaving product aisle, where Brown and Carr

placed shaving products in Carr’s tote. Following the removal of the shaving

products, Carr walked towards the baby formula aisle, while Brown and

Dalton left their shopping cart in the center of the store, and exited without

purchasing any items. Once Carr removed the baby formula, he exited the

store without paying for the items he was carrying in the tote. Exterior

footage of the store revealed that Dalton and Brown left the premises via a

car parked in an adjoining parking lot, while Carr exited by taxicab.

      Dalton was charged with two counts of retail theft and one count of

conspiracy to commit retail theft. Dalton proceeded to a bench trial on July

29, 2015, and was found guilty on all three counts. On December 2, 2015,

Dalton was sentenced to 12 to 24 months’ imprisonment followed by

probation. Dalton filed post-sentence motions, which were denied. This

timely appeal follows.




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      Dalton raises two issues on appeal. First, Dalton argues that the

Commonwealth failed to present sufficient evidence to prove that she

conspired with Brown and Carr to commit retail theft and that she was an

accomplice to Carr’s retail theft. See Appellant’s Brief, at 5. Dalton contends

that the Commonwealth only established her mere presence at the scene of

the crime. See id. Dalton avers that, without additional evidence that she

aided or intended to aid in the commission of retail theft, she cannot be held

responsible for the actions of Brown and Carr. See id.

             The standard we apply in reviewing the sufficiency of
      evidence is whether, 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
      that of 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 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 trier 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. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012)

(citation omitted; brackets in original).

      Section 903 of the Crimes Code defines the crime of conspiracy.



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     (a)    Definition of conspiracy.- 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 an attempt or solicitation
                  to commit such crime; or

            (2)   agrees to aid such other person or persons in the
                  planning or commission of such crime or of an
                  attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a)(1)-(2).

     [T]o sustain a conviction for criminal conspiracy, the
     Commonwealth must establish that the defendant (1) entered
     into an agreement to commit or aid in an unlawful act with
     another person or persons, (2) with a shared criminal intent and
     (3) an overt act was done in furtherance of the conspiracy. This
     overt act need not be committed by the defendant; it need only
     be committed by a co-conspirator.

     The essence of a criminal conspiracy is a common
     understanding, no matter how it came into being, that a
     particular criminal objective be accomplished. Therefore, a
     conviction for conspiracy requires proof of the existence of a
     shared criminal intent. An explicit or formal agreement to
     commit crimes can seldom, if ever, be proved and it need not
     be, for proof of criminal partnership is almost invariably
     extracted from the circumstances that attend its activities. Thus,
     a conspiracy may be inferred where it is demonstrated that the
     relation, conduct, or circumstances of the parties, and the overt
     acts of the co-conspirators sufficiently prove the formation of a
     criminal confederation.

Commonwealth v. Knox, 50 A.3d 732, 740 (Pa. Super. 2012) (citation

omitted).




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      An accomplice is also legally accountable for the conduct of the other

person involved in committing the crimes. See 18 Pa.C.S.A. § 306(b)(3).

The Crimes Code defines an accomplice as follows.

      A person is an accomplice of another person in the commission
      of an offense if:

      (1)   with the intent of promoting or facilitating the commission
            of the offense he:

                  (i)      solicits such other person to commit it; or

                  (ii)     aids or agrees or attempts to aid such other
                           person in planning or committing it; or

      (2)   his conduct is expressly declared by law to establish his
            complicity.

18 Pa.C.S.A.      § 306(c). “Both requirements may be established wholly by

circumstantial evidence. Only the least degree of concert or collusion in the

commission of the offense is sufficient to sustain a finding of responsibility

as an accomplice. No agreement is required, only aid.” Commonwealth v.

Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005) (en banc) (citations

and quotations omitted). Dalton’s conviction for retail theft was premised

upon the theory of accomplice liability. Section 3929 of the Crimes Code

enumerates retail theft as follows.

      (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 displayed, held, stored or offered for
                     sale by any store or other retail mercantile
                     establishment with the intention of depriving the

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                  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).

      Here, the Commonwealth presented evidence that Dalton and Brown

parked in an adjoining parking lot and entered and exited the store together.

Merkel testified that Dalton asked the Target employee a question, which

resulted in the Target employee and Dalton walking away from the health

and beauty section of the store. Once the Target employee left the section,

Brown met Carr in an aisle in the health and beauty section and the two

began to steal items and conceal the items in Carr’s tote. The surveillance

footage shows that after Brown helped Carr steal items, Dalton and Brown

left the store without purchasing anything. It is undisputed that Carr

committed retail theft.

      Based upon our review of the record, we agree with the trial court that

the evidence is sufficient to find that Dalton engaged in a conspiracy to

commit retail theft. As discussed above, a conspiracy can be inferred from

the relation, conduct and circumstances of the co-conspirators. The evidence

shows that Dalton is married to Brown, entered and exited the store with

Brown, and was present while Brown and Carr concealed items in Carr’s

tote. The Commonwealth also presented evidence that Dalton performed an

“overt act in furtherance of the conspiracy” when she distracted the Target

employee. This sufficiently proves the formation of a conspiracy under the

statute.


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      Further, the evidence was sufficient to establish that Dalton assisted

Carr commit retail theft. The Commonwealth presented evidence from which

the trial court reasonably inferred that Dalton aided Carr by distracting the

Target employee and leading the employee away from the health and beauty

section so Carr could steal the items. This act is sufficient to establish

Dalton’s liability as an accomplice for the crime of retail theft. Therefore,

viewing the evidence in the light most favorable to the Commonwealth as

verdict winner, we find the evidence sufficient to convict Dalton of

conspiracy to commit retail theft and retail theft. Thus, Dalton’s first

argument on appeal fails.

      Lastly, Dalton argues that her convictions were against the weight of

the evidence. A challenge to the weight of the evidence “concedes that the

evidence is sufficient to sustain the verdict, but seeks a new trial on the

ground that the evidence was so one-sided or so weighted in favor of

acquittal   that   a   guilty   verdict   shocks   one’s   sense    of   justice.”

Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal

denied, 99 A.3d 925 (Pa. 2014) (citation omitted).

      When the challenge to the weight of the evidence is predicated
      on the credibility of trial testimony, our review of the trial court’s
      decision is extremely limited. Generally, unless the evidence is
      so unreliable and/or contradictory as to make any verdict based
      thereon pure conjecture, these types of claims are not
      cognizable on appellate review. Moreover, where the trial court
      has ruled on the weight claim below, an appellate court’s role is
      not to consider the underlying question of whether the verdict is
      against the weight of the evidence. Rather, appellate review is



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          limited to whether the trial court palpably abused its discretion in
          ruling on the weight claim.

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal

quotes and citations omitted).

          To support her weight of the evidence claim, Dalton essentially

reiterates her sufficiency of the evidence argument. See Appellant’s Brief, at

10-17. Dalton argues that the verdict “shocks one’s sense of justice” and

should not be allowed to stand. See id. at 5. At trial, the Commonwealth

presented evidence in the form of the testimony of Merkel and the

surveillance footage. Dalton did not testify or call any witnesses on her

behalf. Therefore, Dalton’s guilt hinged on the trial court’s determination of

Merkel’s credibility      and its   interpretation of Dalton’s     actions in the

surveillance footage. It is clear that the trial court found Merkel’s testimony

credible, and concluded that Dalton conspired with Brown and Carr to steal

from the store. We discern no abuse of discretion in the court’s assessment

of the credibility of the witnesses or the weight of evidence at trial. We

cannot agree with Dalton that the trial court’s guilty verdict “shocks one’s

sense of justice.” Thus, we conclude that Dalton’s second issue merits no

relief.




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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/9/2016




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