J-S33025-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
               v.                               :
                                                :
                                                :
    DAVID MAURICE SPRINGER                      :
                                                :
                      Appellant                 :   No. 1833 MDA 2016

            Appeal from the Judgment of Sentence October 4, 2016
              In the Court of Common Pleas of Lancaster County
             Criminal Division at No(s): CP-36-CR-0002822-2015


BEFORE:      BENDER, P.J.E., OTT, J. and STRASSBURGER, J.*

MEMORANDUM BY OTT, J.:                                          FILED JUNE 09, 2017

         David Maurice Springer appeals from the judgment of sentence

imposed on October 4, 2016, in the Lancaster County Court of Common

Pleas.      Springer    was     sentenced      to   nine   to   twenty-three   months’

incarceration, followed by a three-year probationary term, after his jury

conviction of retail theft.1,   2
                                    Springer’s sole issue on appeal is a challenge to

the sufficiency of the evidence supporting his conviction. For the reasons set

below, we affirm.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3929(a)(1).
2
  The nine month minimum sentence was divided with the first four months
at Lancaster County Prison, work release eligible, and the remainder on
house arrest with electronic monitoring.
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       The facts surrounding Springer’s arrest and conviction are aptly

summarized by the trial court, as follows:

       On May 15, 2015, [Springer] was shopping at a Giant Foods
       Store when he was observed taking a box of Advil from a shelf,
       removing the bottle of Advil from the box, and hiding the empty
       box in the deodorant shelving section. After discarding the
       empty box, [Springer] added a few items to his cart and then
       proceeded to the checkout line, where he paid for other items,
       but not for the bottle of Advil. He then passed all points of sale
       and began to exit the store. Video footage of these actions was
       shown to the jury. After observing this, the store’s loss
       prevention officer, Brian Weeks, stopped [Springer] in the
       vestibule of the store, and took [Springer] to the manager’s
       office. While being escorted back to the office, [Springer] was
       seen dropping the bottle of Advil into a display basket of
       [children’s] bubbles. The store’s pharmacist, who witnessed
       [Springer] attempt to hide the Advil in the basket of bubbles,
       retrieved the Advil bottle, and informed Mr. Weeks that
       [Springer] had “ditched” the bottle of Advil into a basket on his
       way back into the store. Mr. Weeks then called the police.

       The jury returned a verdict of guilty [of retail theft]. …

Trial Court Opinion, 1/3/2017, at 1–2 (record citations omitted).      Springer

was sentenced as stated above, and this appeal followed.3

       Springer contends the evidence failed to establish “he had the specific

intent to deprive the merchant, Giant Food Stores, of the full retail value of

the merchandise.” Springer’s Brief at 7. Specifically, Springer argues “the

Advil bottle was not found concealed on Mr. Springer’s person [and] no one

saw Mr. Springer conceal the Advil on his person.” Id. at 11. He claims he
____________________________________________


3
 Springer timely complied with the order of the trial court to file a Pa.R.A.P.
1925(b) statement of errors complained of on appeal.



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“was merely seen removing the Advil from its box, and the next time the

Advil was found, it was in a basket at the front of the store.” Id. He further

asserts, “Although [pharmacy manager] Grady testified that he saw Mr.

Springer drop something into a basket as he was being directed back into

the store, the [p]harmacy [m]anager was unable to say which pocket the

item came from or which hand Mr. Springer used.”         Id. at 12.   Springer

maintains “the Advil had a value of $4.94, Mr. Springer paid for

approximately $30 worth of items, and when he was arrested $103.65 was

found on his person. Thus, this evidence suggests that it would be illogical

for Mr. Springer to intend to deprive Giant Food Stores of the retail value of

the Advil bottle when he could have easily paid for it.” Id.

      Our standard of review of a sufficiency challenge is well settled:

      A claim impugning the sufficiency of the evidence presents us
      with a question of law. Our standard of review is well-
      established:

         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

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         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.

     This standard is equally applicable to cases where the evidence
     is circumstantial rather than direct so long as the combination of
     the evidence links the accused to the crime beyond a reasonable
     doubt. Although a conviction must be based on more than mere
     suspicion or conjecture, the Commonwealth need not establish
     guilt to a mathematical certainty.

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014)

(quotations and citations omitted).

     The Crimes Code defines retail theft as follows:

     § 3929 Retail theft

     (a) Offense defined.--A person is guilty of a retail theft if she:

         (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. § 3929(a)(1).

     This Court has stated that “intent can be proven by direct or

circumstantial evidence; it may be inferred from acts or conduct or from the

attendant circumstances.” Commonwealth v. Franklin, 69 A.3d 719, 723

(Pa. Super. 2013). Further, in cases of retail theft, the Crimes Code

expressly provides:



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      Any person intentionally concealing unpurchased property of any
      store or other mercantile establishment, either on the premises
      or outside the premises of such store, shall be prima facie
      presumed to have so concealed such property with the intention
      of depriving the merchant of the possession, use or benefit of
      such merchandise without paying the full retail value thereof
      within the meaning of subsection (a)[.]

18 Pa.C.S. § 3929(c); see also Commonwealth v. Martin, 446 A.2d 965,

968 (Pa. Super. 1982) (“If a person conceals merchandise either in a store

or outside of it, without first having paid for it, it reasonably follows that he

intends to deprive the merchant of the item(s).”).

      The trial court, in assessing the sufficiency of the evidence, concluded:

      The evidence clearly supports the factfinder’s conclusions in this
      case: (1) [Springer] took a box of Advil from a shelf in the store;
      (2) [Springer] removed the outer packaging; (3) [Springer]
      discarded the packaging in a deodorant display; (4) [Springer]
      placed several other items in his cart; (5) [Springer] paid for
      those items, but not for the Advil; (6) [Springer] began leaving
      the store; and (7) when [Springer] was ushered back to the
      manager’s office, he tried to hide the stolen bottle by covertly
      dropping it into the basket of bubbles.

      While it is certainly possible to speculate that [Springer] had
      merely forgotten the bottle was in his pocket after inexplicably
      removing and hiding the outer packaging, or while we might also
      wonder if the bottle found in the basket of bubbles was an
      incredible coincidence, such speculation would greatly exceed
      the clear standard set by our appellate courts: looking at the
      record as a whole, one cannot find that the evidence in this case
      “is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances.” To the contrary, the most logical and obvious
      conclusion is the one reached by the jury-that [Springer]
      intentionally took the bottle of Advil, and intended to keep it
      without paying for it. As precedent clearly indicates, it is
      therefore not within the Court’s discretion to substitute its
      judgment for that of the jury in this case.



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Trial Court Opinion, 1/3/2017, at 3–4.           We agree with the sound reasoning

of the trial court.

       Springer’s reliance on the fact that no one saw him actually pocket the

Advil bottle, that the Advil bottle was not found on his person, and that the

video presented by the Commonwealth did not capture Springer pocketing

the Advil is misplaced. Here, there was evidence that Springer removed the

Advil bottle from its box and discarded the empty box in the deodorant

display, that the Advil was not among the grocery items Springer presented

to the cashier, that Springer proceeded to the vestibule to exit the store

without paying for the Advil, and thereafter, as store security ushered

Springer back to the manager’s office, Springer was observed by the

pharmacy manager inconspicuously dropping the Advil into a basket of

bubbles. This combination of evidence, viewed in the light most favorable to

the Commonwealth as verdict winner, allowed the jury to properly infer that

Springer had the intent to steal the Advil from the store.4          Therefore, no

relief is due.

       Accordingly, we affirm.

       Judgment of sentence affirmed.
____________________________________________


4
  It bears mention that the store security video, which was admitted as
Commonwealth Exhibit 1, and viewed by the jury, is not included in the
certified record. However, the trial transcript is included in the certified
record. The testimony presented by the Commonwealth at trial, by itself,
was sufficient to establish the elements of retail theft beyond a reasonable
doubt.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




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