J-S72024-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAMES RICHARD SCHWENK, :
:
Appellant : No. 565 WDA 2014
Appeal from the Judgment of Sentence Entered March 14, 2014,
In the Court of Common Pleas of Erie County,
Criminal Division, at No. CP-25-CR-0002496-2013.
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED JUNE 26, 2015
Appellant, James Richard Schwenk, appeals from the judgment of
sentence of twelve to sixty months of imprisonment entered in the Court of
Common Pleas of Erie County on March 14, 2014, following Appellant’s
conviction by a jury of one count of retail theft. We affirm.
The trial court summarized the facts of this case as follows:
This matter involves a theft that occurred on May 9, 2013,
at Lowe’s in Summit Township, Pennsylvania. On that date,
Lowe’s greeter, Ronald Mello, observed Appellant pushing a
shopping cart containing a DeWalt power tool and leaving the
store through the entrance, rather than the exit door. N.T. Trial
01/23/14, at 13, 16, 19. Mr. Mello asked Appellant to see his
receipt, and Appellant ignored him and continued to exit the
store. Id., at 13-14. Mr. Mello followed Appellant and
repeatedly requested to see his receipt. Appellant refused and
walked towards the bus stop. Id., at 14. Police were
subsequently dispatched and recovered the stolen item from
*
Retired Senior Judge assigned to the Superior Court.
J-S72024-14
Appellant. Id. at 29. Appellant told police that he purchased the
saw and had a receipt, but was unable to produce it for police.
Id., at 30.
After he was placed in custody, Appellant and the Lowe’s
merchandise were transported back to Lowe’s where employees
identified Appellant as the individual who removed the box from
the store. Id., at 30-31, 37. Lowe’s manager, Mario Loredo,
reviewed the surveillance tape moments after the theft and
observed Appellant walk into the store empty-handed, enter and
exit the tool department, and walk towards the entrance with the
box partially hidden underneath the shopping cart. Id., at 34-
36. Additionally, a Lowe’s employee checked the bar code from
the stolen box and confirmed that it had not been sold that day.
Id., at 37-38.
Trial Court Opinion, 3/11/15, at 1–2.
Following imposition of sentence, as described above, Appellant filed a
motion to reconsider sentence, which the trial court denied on March 24,
2014. On April 8, 2014, Appellant filed a timely notice of appeal, and
concurrently, Appellant’s counsel filed a statement of intent to file an
Anders/McClendon1 brief and a motion for bail pending appeal. On April
16, 2014, the trial court denied bail and issued an order pursuant to
Pa.R.A.P. 1925(b). Thereafter, on May 6, 2014, in lieu of filing an opinion
pursuant to Pa.R.A.P. 1925(a), the trial court issued an order directing the
transmittal of the record to this Court, noting that it “improvidently issued a
Concise Statement Order . . . given [defense counsel’s] Statement of Intent
to File an Anders/McClendon Brief . . . .” Order, 5/6/14, at 1 n.1
1
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981), respectively.
-2-
J-S72024-14
(emphasis added). On June 2, 2014, new counsel entered her appearance
on Appellant’s behalf and filed an advocate’s brief without seeking to file a
Rule 1925(b) statement nunc pro tunc.
We stated in Commonwealth v. Myers, 897 A.2d 493 (Pa. Super.
2006): “[T]he proper course for this Court is to forbid the use of Anders as
a vehicle to circumvent the Rules of Appellate Procedure.” Id. at 496; see
also Pa.R.A.P. 1925(c)(3) (instructing that if a criminal appellant “was
ordered to file a [Concise] Statement and failed to do so, such that the
appellate court is convinced that counsel has been per se ineffective, the
appellate court shall remand for the filing of a Statement nunc pro tunc and
for the preparation and filing of an opinion by the judge.”). Thus, we
remanded the instant case for the filing of a proper Pa.R.A.P. 1925(b)
statement followed by a trial court opinion. The parties have filed briefs, the
trial court has complied with our remand order, and the case is ready for
disposition.
Appellant raises the following two issues for our review:
The evidence in this case was insufficient to establish that
[Appellant] committed the crime of retail theft.
The sentence in this case was manifestly excessive and clearly
unreasonable, particularly in its consecutiveness.
Appellant’s Brief at 2.
-3-
J-S72024-14
Appellant first asserts that there was insufficient evidence to support
the verdict because “he could have purchased the item.” Id. at 7. In
reviewing the sufficiency of the evidence, we must determine whether the
evidence admitted at trial and all reasonable inferences drawn therefrom,
viewed in the light most favorable to the Commonwealth as verdict winner,
were sufficient to prove every element of the offense beyond a reasonable
doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013). It is within
the province of the fact-finder to determine the weight to be accorded to
each witness’s testimony and to believe all, part, or none of the evidence.
Commonwealth v. James, 46 A.3d 776 (Pa. Super. 2012). The
Commonwealth may sustain its burden of proving every element of the
crime by means of wholly circumstantial evidence. Commonwealth v.
Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014). “[I]n applying the above
test, the entire record must be evaluated and all evidence actually received
must be considered.” Commonwealth v. Estepp, 17 A.3d 939, 944 (Pa.
Super. 2011). Moreover, as an appellate court, we may not re-weigh the
evidence and substitute our judgment for that of the fact-finder.
Commonwealth v. Ratsamy, 934 A.2d 1233 (Pa. 2007).
The critical inquiry on review of the sufficiency of the evidence to
support a criminal conviction . . . does not require a court to
“ask itself whether it believes that the evidence at the trial
established guilt beyond a reasonable doubt.” Instead, it must
determine simply whether the evidence believed by the fact-
finder was sufficient to support the verdict.
-4-
J-S72024-14
Id. at 1235–1236 (emphasis in original, internal citation omitted).
Retail theft is defined, in pertinent part, 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
merchant of the possession, use or benefit of such
merchandise without paying the full retail value
thereof[.]
18 Pa.C.S. § 3929(a)(1).
The trial court determined that Appellant’s claim of insufficient
evidence lacked merit. Following our thorough review of the record, we
agree. The Commonwealth presented the testimony of Mario Loredo, the
Lowe’s assistant manager on duty the day in question. Mr. Loredo testified
that he reviewed the store’s videotape2 that showed Appellant enter the
store without any packages, go into the tool area, and then leave with a
circular saw underneath his shopping cart. N.T., 1/23/14, at 34–35. Mr.
Loredo also testified that he “ran the sku” on the box containing the saw,
and the store had not sold that item “in weeks.” Id. at 37.
2
The videotape was unavailable at trial because “about a month after the
incident . . . [Lowe’s] went through a system update,” and the footage was
lost. N.T., 1/23/14, at 36.
-5-
J-S72024-14
The Commonwealth also presented the testimony of Ronald Mello, the
Lowe’s greeter who was working on the day of the incident. Mr. Mello
testified he observed Appellant leaving the store through the entrance with a
circular saw box underneath his cart. N.T., 1/23/14, at 13. When Mr. Mello
asked Appellant for his receipt, Appellant ignored him and continued
walking. Id. at 13–14. Mr. Mello followed Appellant through the parking lot
and continued to ask for the receipt, stopping only when Appellant reached
the highway. Id. at 14. Mr. Mello returned to the store and reported his
observations to Mr. Loredo. Id.
The Commonwealth also presented the testimony of Pennsylvania
State Trooper Timothy J. McConnell. N.T., 1/23/14, at 22. Trooper
McConnell testified that he responded to a report of a theft in progress at
Lowe’s on Peach Street in Summit Township. Id. at 23. Upon arrival at
Lowe’s, the trooper inquired of people standing in the area if they had seen
anyone carrying a saw box, and they directed him toward Peach Street. Id.
at 24. Trooper McConnell approached Appellant, observed the saw box, and
detained him. Id. at 27. Pennsylvania State Trooper Robert Harris, who
originally received the police call but who was not in the area, took over the
investigation. Id. at 28–29. Trooper Harris testified that Appellant could
not produce a receipt for the circular saw. Id. at 30. Appellant eventually
-6-
J-S72024-14
was returned to the scene, where he was identified by Mr. Loredo and Mr.
Mello, and he was arrested and charged with retail theft. Id. at 30–31.
This testimony establishes that the Appellant took “possession of, [or]
carrie[d] away . . . merchandise . . . offered for sale by any store or other
retail mercantile establishment with the intention of depriving the merchant
of the possession . . . without paying the full retail value thereof.” 18
Pa.C.S. § 3929(a)(1). Viewed in the light most favorable to the
Commonwealth as the verdict winner, the evidence supports the verdict
beyond a reasonable doubt. Thus, we reject Appellant’s first claim.
Next, Appellant asserts that the trial court imposed an unreasonable
sentence “particularly in its consecutiveness.” Appellant’s Brief at 8.
Appellant’s claim challenges the discretionary aspects of his sentence. A
challenge to the discretionary aspects of a sentence is a petition for
permission to appeal, as the right to pursue such a claim is not absolute.
Commonwealth v. Treadway, 104 A.3d 597, 599 (Pa. Super. 2014).
Before this Court may review the merits of a challenge to the discretionary
aspects of a sentence, we must engage in the following four-pronged
analysis:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
-7-
J-S72024-14
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S. § 9781(b).
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citing
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006)).
Additionally, “issues challenging the discretionary aspects of a sentence
must be raised in a post-sentence motion or by presenting the claim to the
trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.”
Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. Super. 2013)
(quoting Commonwealth v. Kittrell, 19 A.3d 532, 538 (Pa. Super. 2011)).
We note that Appellant has met the first three parts of the four-prong
test required prior to our review of the merits of a discretionary challenge to
a sentence: Appellant timely filed an appeal; Appellant preserved the issue
in a post-sentence motion; and Appellant included a statement pursuant to
Pa.R.A.P. 2119(f) in his brief. Thus, we assess whether Appellant has raised
a substantial question.
A determination as to whether a substantial question exists is made on
a case-by-case basis. Commonwealth v. Sierra, 752 A.2d 910 (Pa. Super.
2000). This Court will grant the appeal “only when the appellant advances a
colorable argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary
-8-
J-S72024-14
to the fundamental norms which underlie the sentencing process.” Id. at
912–913.
It is well settled that bald claims of excessiveness due to the
consecutive nature of sentences imposed will not raise a substantial
question. Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.
2013). In his Rule 2119 statement, Appellant asserts only that the sentence
imposed, consecutive to “his prior docket number for which he was
revoked,” was not individualized. Appellant’s Brief at 5. “Generally,
Pennsylvania law ‘affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed. Any challenge to the
exercise of this discretion ordinarily does not raise a substantial question.’”
Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011) (quoting
Commonwealth v. Pass, 914 A.2d 442, 446–447 (Pa. Super. 2006)); 42
Pa.C.S. § 9721. We conclude that Appellant’s unsupported claim is not
sufficient to raise a substantial question that his standard-range sentence
was inappropriate.
Even if a substantial question had been raised, Appellant’s issue lacks
merit, as explained by the trial court, as follows:
As the record shows, before imposing sentence, this Court
considered the following: (1) the pre-sentence investigative
report; (2) Pennsylvania Sentencing Code and all its factors; (3)
the Pennsylvania Sentencing Guidelines; (4) the statements
-9-
J-S72024-14
made at time of sentencing; (5) Appellant’s schizoaffective
disorder; and, (6) Appellant’s prior record score. N.T.
Sentencing, N.T. Sentencing, 03/14/14, at 10-18. The sentence
was within the standard range of the sentencing guidelines and
tailored to Appellant’s individual situation. Any lesser sentence
than the one imposed would have depreciated the nature of
Appellant’s conduct. Furthermore, imposition of a consecutive
sentence was appropriate given the nature of Appellant’s actions
and he was not entitled to a “volume discount.”
Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super.
1995). Because Appellant’s sentence was within the statutory
limits and not manifestly excessive, there was no sentencing
error.
Trial Court Opinion, 3/11/15, at 7.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/2015
-10-