J-S13040-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

MICHELLE UHRIN

                            Appellant                        No. 1575 WDA 2014


      Appeal from the Judgment of Sentence entered September 23, 2014
                In the Court of Common Pleas of Fayette County
               Criminal Division at No: CP-26-CR-0000246-2014


BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                                     FILED JUNE 23, 2015

        Appellant Michelle Uhrin appeals from the September 23, 2014

judgment of sentence entered in the Court of Common Pleas of Fayette

County (“trial court”), following her jury conviction for retail theft and defiant

trespass.1 Upon review, we affirm.

        The   facts   and    procedural        history   underlying   this   appeal   are

undisputed.      On October 19, 2013, Pennsylvania State Trooper Nathan

Swink charged Appellant with retail theft and defiant trespass.                The case

proceeded to trial, at which the Commonwealth presented the testimony of

Arthur Engle, among others. Engle testified he was employed as an asset

protection associate by Wal-Mart in Connellsville, Fayette County. See N.T.

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1
    18 Pa.C.S.A. §§ 3929(a)(1), 3503(b)(1)(i).
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Trial, 9/11/14, at 7-8.      Engle testified that, on October 19, 2013, he

“observed [Appellant] selecting merchandise, concealing that merchandise

into a purse that she had sitting on the top of a shopping cart as well as

selecting additional merchandise and placing it under the purse that was

sitting in the shopping cart.” Id. at 8-9. He further testified Appellant paid

for some of the merchandise at a pharmacy checkout counter.          Id. at 9.

Appellant, however, did not pay for the items concealed inside and under the

purse.    Id.   Engle testified that after checking out at the pharmacy,

Appellant “proceed[ed] to exit the store.” Id. In describing the location of

the exit, Engle testified:

      Our checkout counters, I mean most people that go to Wal-Mart,
      it is usually the same set-up. We have our row of cash registers
      or checkouts and when you come from the pharmacy, you will go
      around the corner around some water bottle display, and then
      out our general merchandising exit which is past the checkouts
      and through our EAS, or Electronic Article Surveillance System,
      out into the vestibule.

Id. at 10. Engle also testified that, to exit the store, customers have to walk

“past the last point of sale, and past those Electronic Article Surveillance

pedestals.” Id. Engle explained that Wal-Mart allows “every opportunity for

merchandise to be paid for.”    Id.   He testified that he observed Appellant

leaving the store and approached her “past the EAS Systems and in the

vestibule.” Id. at 11.

      Engle testified that he accompanied Appellant to “the Asset Protection

Office,” where Appellant returned the concealed merchandise to him.        Id.

He also testified that when he asked Appellant whether she had any


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additional    unpaid     merchandise,      “[Appellant]   started   removing   more

merchandise and handing it to me.” Id. at 12. He testified that the unpaid

merchandise included “deodorant, chewable Tums, body sprays, hair dye,

and lip balm,” totaling $37.83.          Id. at 14, 21.   Engle testified that upon

entering Appellant’s name into Wal-Mart’s database, he discovered a

“trespass notice” issued to Appellant on September 9, 2012. Id. at 16-18.

Engle explained the notice meant Appellant was “no longer welcome or

wanted on Wal-Mart property.” Id. at 18. He further testified that Appellant

“recall[ed] receiving that notice and signing for it.” Id. at 20.

       The jury, thereafter, found Appellant guilty of retail theft and defiant

trespass.2    On September 23, 2014, the trial court sentenced Appellant to

sixteen to thirty-two months’ imprisonment for retail theft. See N.T. Trial,

9/23/14, at 3. The trial court did not impose upon Appellant any term of

incarceration for the defiant trespass conviction. Id. Appellant filed a timely

appeal.

       In her Pa.R.A.P. 1925(b) statement of errors complained of on appeal,

Appellant raised only one assertion of error: “The evidence was insufficient

to find [Appellant] guilty beyond a reasonable doubt of retail theft and

defiant trespass.”        Appellant’s Rule 1925(b) statement, 10/1/14.           In


____________________________________________


2
  On direct examination, Appellant testified that she was convicted for retail
theft once in 2007 and three times in 2009. See N.T. Trial, 9/11/14, at 57-
58.



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response, the trial court issued a Pa.R.A.P. 1925(a) opinion. The trial court

concluded     Appellant’s    assertion    of   error   was   meritless   because   the

Commonwealth presented sufficient credible evidence to establish retail theft

and defiant trespass. Trial Court Opinion, 11/19/14, at 5.

       On appeal, Appellant repeats the same assertion of error.3,         4
                                                                               Because

Appellant challenges both convictions based upon a sufficiency of the

evidence, we address her challenge with respect to each conviction

separately.




____________________________________________


3
  We note with disapproval that Appellant failed to specify in her Rule
1925(b) statement and questions presented section of her brief the element
or elements of retail theft and defiant trespass upon which the evidence was
insufficient.  Although ordinarily we would consider such failure to be
sufficient grounds for waiver, we make an exception in the instant case in
part because the Commonwealth does not object. Commonwealth v.
Garang, 9 A.3d 237, 244 (Pa. Super. 2010).
4
  We likewise note with disapproval Appellant’s failure to provide the facts of
this case in the “statement of the case” section of his brief. Instead, she
provided a five-sentence summary of procedural history irrelevant to the
issues raised. Appellant’s brief violates Rule 2117(a)(4), which requires an
appellant to set forth “[a] closely condensed chronological statement, in
narrative form, of all the facts which are necessary to be known in
order to determine the points in controversy, with an appropriate
reference in each instance to the place in the record where the
evidence substantiating the fact relied on may be found.” Pa.R.A.P.
2117(a)(4) (emphasis added); see also Commonwealth v. Maris, 629
A.2d 1014, 1016 (Pa. Super. 1993) (quashing appeal because, among other
reasons, appellant’s statement of the case “only attempts to provide some
minimal information regarding the procedural and factual history of the
case”). Nevertheless, we decline to find waiver on this basis.



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

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

      The standard we apply in reviewing the sufficiency of the
      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
      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 of the crime 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
      finder 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)

(emphasis added), appeal denied, 95 A.3d 275 (Pa. 2014).

      We first address Appellant’s contention that the evidence was

insufficient to sustain a conviction for retail theft.

      Section 3929 of the Crimes Code, relating to retail theft, provides in

pertinent part:

      (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
             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).

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      Here, the evidence presented at trial, viewed in a light most favorable

to the Commonwealth, establishes the Commonwealth proved the necessary

elements of retail theft. As the trial court found “[t]he testimony established

that Appellant secreted in her purse, and under her purse, merchandise

displayed and offered for sale by Wal-Mart and attempted to leave the

premises without paying for the merchandise.”             Trial Court Opinion,

11/19/14, at 5.      Specifically, the evidence in this case demonstrates

Appellant walked past the last point of sale and through Wal-Mart’s EAS

System with the unpaid items in her possession and was stopped by Engle in

the vestibule.

      Appellant’s argument that her conviction for retail theft was based on

conjecture and that she had not exited the store is entirely without merit, as

it ignores our    applicable   standard of review.        The totality of the

circumstances plainly establish beyond a reasonable doubt that Appellant did

not intend to pay for the items when she was stopped in the vestibule after

walking past the last point of sale and through the EAS System. The jury

verdict, therefore, was not based on conjecture or speculation.

      To the extent Appellant, in proffering her version of the facts, argues

the Commonwealth failed to carry its burden, we reject such argument as

meritless.   We construe Appellant’s argument as challenging the weight of

the evidence and credibility determinations. As we stated above, this Court

may not re-weigh the evidence or substitute its judgment for that of the

finder of fact. In fact, the finder of fact while passing upon the credibility of

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witnesses and the weight of the evidence produced, is free to believe all,

part or none of the evidence. See Antidormi, supra.

      We now turn to Appellant’s contention that the evidence is insufficient

to sustain a conviction for defiant trespass. Specifically, Appellant argues:

      the Commonwealth failed to establish that [A]ppellant was given
      actual communication and defied a direct order to leave the
      store. The Commonwealth failed to prove [A]ppellant knowing
      she was not authorized or privileged to do so, did enter or
      remain in Walmart as to which notice against trespass was given
      by actual communication by the owner.

Appellant’s Brief at 16.

      Section 3503 of the Crimes Code, relating to criminal trespass,

provides in pertinent part:

      (b) Defiant trespasser.--

         (1) A person commits an offense if, knowing that he is not
         licensed or privileged to do so, he enters or remains in any
         place as to which notice against trespass is given by:

            (i) actual communication to the actor[.]

18 Pa.C.S.A. § 3503(b)(1)(i).

      Instantly, the evidence presented at trial, viewed in a light most

favorable to the Commonwealth, establishes the Commonwealth proved the

necessary elements of defiant trespass.          The evidence in this case

establishes Appellant went to Wal-Mart, knowing that she was barred from

Wal-Mart property.         In this regard, the trial court specifically noted

“[Appellant] also acknowledged that she had been previously given actual




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notice that she was not permitted on any Wal-Mart property.”5 Trial Court

Opinion, 11/19/14, at 5 (emphasis added).

       In sum, given the evidence presented at trial, the jury could, and did,

reasonably infer Appellant violated Sections 3929(a)(1) and 3503(b)(1)(i) of

the Crimes Code.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/23/2015




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5
  At trial, Appellant testified she recalled signing the trespass notice. See
N.T. Trial, 9/11/14, at 63-64.



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