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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MAYA N. BENNETT, :
:
Appellant : No. 977 EDA 2015
Appeal from the Judgment of Sentence March 11, 2015
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0005081-2014
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 20, 2016
Maya N. Bennett (Appellant) appeals from the judgment of sentence of
four years of probation following her non-jury conviction for retail theft.
Appellant’s counsel has filed a petition to withdraw and a brief pursuant to
Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
Santiago, 978 A.2d 349 (Pa. 2009). We affirm the judgment of sentence
and grant the petition to withdraw.
The trial court summarized the evidence offered at trial as follows.
Curtisha Wallace was working as an employee for Dollar
General Store on March 24, 2014. She was working at the cash
register when she observed [Appellant] enter the store. Ms.
Wallace left the register to put out new merchandise.
[Appellant] approached Ms. Wallace and asked for her help
in finding an item. As Ms. Wallace started to walk to show
[Appellant] the aisle where the item was located, [Appellant]
backed away from Ms. Wallace, shielding her purse.
*Retired Senior Judge assigned to the Superior Court.
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As [Appellant] was leaving the store, Ms. Wallace noticed
that [Appellant’s] purse, which had appeared empty when she
entered, now appeared full. Ms. Wallace stopped [Appellant]
after she had passed the registers and was approaching the exit
door.
Inside [Appellant’s] purse Ms. Wallace found eleven (11)
miscellaneous items from the store. The items had Dollar
General labels. One of the items was Glade air freshener that
Ms. Wallace had earlier seen [Appellant] holding while walking
down an aisle in the store. When the items were found,
[Appellant] pleaded to be let go, saying she was sorry, that she
didn’t have money to pay and that she wouldn’t do it again.
Trial Court Opinion, 9/17/2015, at 2 (citations omitted).
Upon this evidence, the trial court convicted Appellant of retail theft
and imposed a sentence of four years of probation.1 This timely-filed appeal
followed.
In this Court, Appellant’s counsel filed both an Anders brief and a
petition to withdraw as counsel. Accordingly, the following principles guide
our review of this matter.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
1
Because it is Appellant’s third such conviction, it is graded as a felony of
the third degree. 18 Pa.C.S. § 3929(b)(1)(iv) (“Retail theft constitutes a: …
[f]elony of the third degree when the offense is a third or subsequent
offense, regardless of the value of the merchandise.)
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Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm the judgment of sentence. However, if there are non-
frivolous issues, we will deny the petition and remand for the
filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations to
the record; (2) refer to anything in the record that counsel
believes arguably supports the appeal; (3) set forth counsel’s
conclusion that the appeal is frivolous; and (4) state counsel’s
reasons for concluding that the appeal is frivolous. Counsel
should articulate the relevant facts of record, controlling case
law, and/or statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361.
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has complied with the technical
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requirements set forth above.2 Therefore, we now have the responsibility
“‘to make a full examination of the proceedings and make an independent
judgment to decide whether the appeal is in fact wholly frivolous.’”
Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super. 2015)
(quoting Santiago, 978 A.2d at 354 n. 5).
Counsel presented this Court with one issue of arguable merit
concerning the sufficiency of the evidence to sustain Appellant’s conviction.
Anders Brief at 3. We begin with the law applicable to the first issue.
As a general matter, our standard of review of sufficiency
claims requires that we evaluate the record in the light most
favorable to the verdict winner giving the prosecution the benefit
of all reasonable inferences to be drawn from the evidence.
Evidence will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. Any doubt about the defendant’s guilt is
to be resolved by the fact finder unless the evidence is so weak
and inconclusive that, as a matter of law, no probability of fact
can be drawn from the combined circumstances.
The Commonwealth may sustain its burden by means of
wholly circumstantial evidence. Accordingly, [t]he fact that the
evidence establishing a defendant's participation in a crime is
circumstantial does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn therefrom
overcomes the presumption of innocence. Significantly, we may
not substitute our judgment for that of the fact finder; thus, so
long as the evidence adduced, accepted in the light most
favorable to the Commonwealth, demonstrates the respective
2
Appellant has not responded to counsel’s petition to withdraw.
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elements of a defendant’s crimes beyond a reasonable doubt,
the appellant’s convictions will be upheld.
Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)
(internal citations and quotation marks omitted).
A person is guilty of retail theft if he or she
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 statute also provides for the following
presumption:
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…,
and the finding of such unpurchased property concealed, upon
the person or among the belongings of such person, shall be
prima facie evidence of intentional concealment….
18 Pa.C.S. § 3929(c).
The trial court found that the Commonwealth sufficiently proved
Appellant’s violation of subsection 3929(a)(1):
Here the evidence, viewed in the light most favorable to
the Commonwealth as the verdict winner, established that
[Appellant] concealed retail merchandise of Dollar General Store
in her purse. She transported the concealed merchandise past
the register area of the store and was approaching the exit door
when she was stopped and found in possession of the eleven
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items with Dollar General labels, including a Glade air freshener
that she had been seen carrying in the store. When caught,
[Appellant] made statements demonstrating both her intent to
take the merchandise without paying and her knowledge of the
wrongfulness of her acts.
This evidence was clearly sufficient to prove [Appellant]
guilty of the crime of retail theft, beyond a reasonable doubt.
Trial Court Opinion, 9/17/2015, at 4.
We discern no error in the trial court’s analysis: Ms. Wallace’s
testimony, including Appellant’s statements acknowledging her guilt,
established that Appellant purposefully concealed Dollar General’s
merchandise in her purse with the intention of depriving Dollar General of it
without paying the full retail value. See, e.g., Commonwealth v. Dent,
837 A.2d 571, 576 (Pa. Super. 2003) (holding evidence was sufficient where
Dent had two sets of fake nails in her handbag when she attempted to exit
the store and fled when informed the police would be called).
Therefore, we agree with counsel that Appellant’s issue regarding the
sufficiency of the evidence is frivolous. Moreover, we have conducted “a full
examination of the proceedings” and conclude that “the appeal is in fact
wholly frivolous.” Flowers, 113 A.3d at 1248. Accordingly, we affirm the
judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed. Petition to withdraw granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/20/2016
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