J-S44005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MARK ALLEN SCOTT                           :
                                               :
                       Appellant               :   No. 877 EDA 2018

            Appeal from the Judgment of Sentence February 5, 2018
     In the Court of Common Pleas of Delaware County Criminal Division at
                       No(s): CP-23-CR-0005732-2017


BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                             FILED AUGUST 15, 2018

        Mark Allen Scott appeals from the judgment of sentence, entered in the

Court of Common Pleas of Delaware County, after he was convicted of criminal

conspiracy (retail theft).1 After careful review, we affirm.

        On April 18, 2017, Scott and his co-worker, Dawn McGraft, entered a

Giant Supermarket to use the restroom. At times they were together and at

times they were apart: Scott entered and left the Giant twice, the second

time supposedly to check on McGraft, while McGraft stayed in the store the

entire time. A manager observed McGraft conceal some store products in her

pocket and walk past the checkout aisles. He and another manager confronted

McGraft, who fled the supermarket. During the chase, McGraft dropped the

stolen merchandise and ran across the parking lot into another strip mall.

____________________________________________


1   18 Pa.C.S.A. §§ 903, 3929(a)(1).
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Scott was waiting in his van and observed the entire chase; he later admitted

it was “obvious” that McGraft stole the merchandise. N.T. Trial, 2/5/18, at

37. One of the managers stopped Scott and told him not to pick up McGraft,

because she had just committed a crime and the police were on their way.

Scott contacted McGraft via cellphone, drove to pick her up, and the two left

the scene.

      Scott was arrested the same day, and after a non-jury trial he was found

guilty of conspiracy to commit retail theft. On February 5, 2018, the court

imposed a fine of $300.00. Scott’s timely appeal raises the following issue for

our review: “Whether the trial court was correct in finding that there was

sufficient evidence submitted at trial to convict Mr. Scott of conspiracy to

[commit] retail theft?” Brief of Appellant, at 6.

      We first note that the Commonwealth challenges the adequacy of Scott’s

Pa.R.A.P. 1925(b) statement, asserting he did not identify the unproven

elements of his crime with adequate specificity. Generally, if the appellant

fails to specifically identify the allegedly unproven elements of his crime, the

issue is waived for purposes of review. See Commonwealth v. Williams,

959 A.2d 1252, 1257 (Pa. Super. 2008); see also Commonwealth v.

Heggins, 809 A.2d 908, 911 (Pa. Super. 2011) (“[A Rule 1925(b)]

[s]tatement which is too vague to allow the court to identify the issues raised

on appeal is the functional equivalent to no [c]oncise [s]tatement at all.”).

However, we have previously overlooked a deficient Rule 1925(b) statement

where the appellant raises a single, straightforward issue, and the trial court

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addressed that issue in substantial detail. See Commonwealth v. Laboy,

936 A.2d 1058, 1060 (Pa. 2007) (allowing review of appellant’s claim in

absence of proper Rule 1925(b) statement due to appellant’s “relatively

straightforward drug case . . . [that] spans a mere thirty pages of transcript,”

where trial court “readily apprehended Appellant’s claim and addressed it in

substantial detail.”).

      Scott’s Rule 1925(b) statement alleges insufficiency of evidence

generally and in broad terms, but in his brief he devotes the majority of his

argument to a claim that he did not have the requisite shared intent to

conspire to commit retail theft.     The trial court reviewed the facts and

concluded that Scott did indeed have the requisite intent, so it accordingly did

not find his Rule 1925(b) statement too vague to review.             This is a

straightforward retail theft case with one issue raised for review. Thus, we

proceed to the merits of Scott’s claim.

      Our standard of review regarding insufficient evidence is well-settled:

      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.

Commonwealth v. Roberts, 133 A.3d 759, 767 (Pa. Super. 2016).

      Conspiracy is defined in 18 Pa.C.S.A. § 903, which provides, in pertinent

part, as follows:

      (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.
                                         ...

       (e) Overt act. -- No person may be convicted of conspiracy to
      commit a crime unless an overt act in pursuance of such
      conspiracy is alleged and proved to have been done by him or by
      a person with whom he conspired.

18 Pa.C.S.A. § 903.

      “The essence of criminal conspiracy is a common understanding, no

matter how it came into being, that a particular criminal objective be

accomplished.” Commonwealth v. Carter, 416 A.2d 523, 524 (Pa. Super.

1979).    A conspiracy is almost always proven by circumstantial evidence.

Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002). The

evidence must rise above the mere possibility of guilty collusion. Id.


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      When reviewing the circumstances surrounding an alleged conspiracy,

this Court considers four factors:        (1) an association between alleged

conspirators; (2) knowledge of the commission of the crime; (3) presence at

the scene of the crime; and (4) in some situations, participation in the object

of the conspiracy.    Lambert, supra.        These factors are relevant when

determining a conspiracy, but are not sufficient by themselves. Id.

      Viewing the evidence in the light most favorable to the Commonwealth,

we find there is sufficient evidence to sustain Scott’s conviction. The record

reveals circumstantial evidence that creates an inference of conspiracy.

Scott and McGraft traveled to the supermarket together. Scott was waiting

outside while McGraft stole the merchandise, and subsequently observed the

entire chase between McGraft and the store managers. The manager informed

Scott that McGraft had just committed a crime, he had just called the police,

and that Scott should not leave or pick up McGraft. With this knowledge, Scott

still voluntarily contacted and picked up McGraft to help her elude capture by

driving away.    Accordingly, we hold there was sufficient evidence for the

factfinder to find guilt beyond a reasonable doubt. Scott is entitled to no relief.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/15/18




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