Com. v. Reynolds, E., III

J-S20037-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERNEST WILLIAM REYNOLDS, III :
:
Appellant : No. 32 MDA 2018

Appeal from the Judgment of Sentence March 29, 2016
In the Court of Common Pleas of Lycoming County
Criminal Division at No(s): CP-41-CR-0001937-2014

BEFORE: GANTMAN, P.J., OTT, J., and KUNSELMAN, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 11, 2018

Appellant, Ernest William Reynolds, III, appeals nunc pro tunc from the

judgment of sentence entered in the Lycoming County Court of Common

Pleas, following his jury trial convictions for retail theft, conspiracy to commit

retail theft, attempted retail theft, and receiving stolen property.1 We affirm.

The relevant facts and procedural history of this case are as follows. On

several dates in September 2014, Appellant and two cohorts stole, inter alia,

DVDs from a Target store in Williamsport, Pennsylvania and sold them to an

FYE store. On October 28, 2014, the Commonwealth charged Appellant with

one count each of retail theft, conspiracy to commit retail theft, attempted

retail theft, and receiving stolen property.

____________________________________________

1 18 Pa.C.S.A. §§ 3929(a)(1), 903(a), 901(a), and 3925(a), respectively.
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Appellant proceeded to a jury trial on January 29, 2016. At trial, Ronald

Hollenbach, one of Appellant’s co-conspirators, testified he and Appellant

made an agreement in September 2014 to steal DVDs from Target and sell

them. Mr. Hollenbach explained he drove his black Volvo to Target with

Appellant several times in September 2014. On those occasions, Mr.

Hollenbach and/or Appellant entered the Target, took a backpack from off the

shelf, placed several DVDs in the backpack, left the Target without paying for

any items, removed the retail packaging from the DVDs, and sold them as

used DVDs to FYE. Mr. Hollenbach stated Joel Martinez-Colon joined him and

Appellant to carry out their plan on a few occasions. Mr. Hollenbach explained

he and Appellant split the proceeds from the sales to FYE and used the money

to purchase heroin.

Specifically, Mr. Hollenbach testified he went to the Target with

Appellant on September 13, 20, and 30, 2014. Mr. Hollenbach identified his

signature on receipts from FYE respectively dated September 13 and 20, 2014,

which indicate Mr. Hollenbach received payment for several DVDs. Mr.

Hollenbach said he and Appellant entered the Target again on September 30,

2014, and proceeded to gather backpacks and DVDs. When Mr. Hollenbach

saw police positioned outside the store, he abandoned a backpack and DVDs,

attempted to leave the store, and observed Appellant exit the store and run

through the parking lot to flee the police. Mr. Hollenbach explained police

arrested him at Target on September 30, 2014, and he admitted to authorities

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that he and Appellant had committed the offenses of September 13 and 20,

2014.

Mr. Martinez-Colon, another co-conspirator, also testified. He stated he

agreed with Mr. Hollenbach and Appellant to steal and sell DVDs, a plan that

Appellant had developed. Mr. Martinez-Colon explained the trio split the

proceeds from the DVD sales and used the money to buy heroin.

Mr. Martinez-Colon testified he went to the Target with Mr. Hollenbach

and Appellant on September 7, 9, and 24, 2014. Mr. Martinez-Colon said on

September 7, 2014, the three men went to Target in a black Volvo. That day,

Mr. Martinez-Colon entered the Target, placed several DVDs into a backpack,

left the store without paying, and removed the retail packaging from the

DVDs. Then, Mr. Martinez-Colon, Mr. Hollenbach, and Appellant went to FYE

to sell the DVDs. Mr. Martinez-Colon identified his signature on a receipt from

FYE dated September 7, 2014, indicating FYE paid him for DVDs. Mr.

Martinez-Colon testified the trio returned to Target in the black Volvo on

September 9, 2014. This time, Mr. Martinez-Colon stayed in the car, while

Appellant went into Target. Mr. Martinez-Colon stated he sold to FYE the DVDs

Appellant took from Target on September 9th and identified his signature on

an FYE receipt dated September 9, 2014. Similarly, Mr. Martinez-Colon, Mr.

Hollenbach, and Appellant went to Target on September 20, 2014. Mr.

Martinez-Colon explained only Appellant and Mr. Hollenbach entered the store.

Mr. Martinez-Colon stated he sold to FYE the DVDs Mr. Hollenbach and

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Appellant took from Target and identified his signature on an FYE receipt dated

September 20, 2014.

Next, Ryan Schlopy testified. Mr. Schlopy explained he worked in asset

protection in the Williamsport Target during September 2014. Mr. Schlopy

stated he contacted Police Chief Christopher McKibben in mid-September

2014, after he investigated several similar thefts which occurred that month.

Each time, individuals took a backpack from the shelf, placed DVDs inside the

backpack, left the store without paying for those items, and returned to a

black sedan.

Mr. Schlopy testified he called Chief McKibben again on September 30,

2014, when Mr. Schlopy observed Mr. Hollenbach and Appellant enter the

store and followed them through the sales floor. Mr. Schlopy explained he

watched Mr. Hollenbach take a black backpack from the shelf. Mr. Schlopy

saw both Mr. Hollenbach and Appellant place DVDs into bags they had in

separate shopping carts. Mr. Schlopy testified he observed Mr. Hollenbach

abandon his shopping cart and its contents before Chief McKibben

apprehended him. Mr. Schlopy stated Mr. Hollenbach’s arrest was within

Appellant’s line of sight. After police arrested Mr. Hollenbach, Mr. Schlopy saw

Appellant pause in a check-out lane, walk out of the store, and run across the

parking lot. Subsequently, Mr. Schlopy discovered Appellant’s photo ID and

Social Security card in the check-out lane.

Mr. Schlopy testified he studied surveillance video and Target’s

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inventory system to determine what items Appellant and/or his cohorts

removed from the store and the retail value of those items. Mr. Schlopy

identified the approximate retail value of merchandise Target lost as a result

of each theft: on September 7th, Target lost $393.89; on September 9th,

Target lost $500.86; on September 13th, Target lost $560.83; and on

September 20th, Target lost $924.23.

Mr. Schlopy also explained he investigated a unique theft that occurred

on September 24, 2014. Mr. Schlopy observed via surveillance video

Appellant remove a Garmin GPS bracelet from the store without paying. Mr.

Schlopy noted the retail value of the Garmin item is $249.99.

Finally, Chief McKibben testified he worked with Mr. Schlopy throughout

September 2014 to investigate the thefts and determine the value of the items

Appellant and/or his co-conspirators took from the Target store. Chief

McKibben reviewed Target surveillance video and obtained transaction

receipts from FYE. Chief McKibben stated Appellant removed from Target, in

September 2014, merchandise with a cumulative retail value of $2,235.91.

Mr. Hollenbach stole merchandise totaling $1,485.06 in retail value, and Mr.

Martinez-Colon stole merchandise with a total retail value of $1,958.95.

On January 29, 2016, the jury convicted Appellant of one count each of

retail theft, conspiracy to commit retail theft, attempted retail theft, and

receiving stolen property. The court sentenced Appellant on March 29, 2016,

to an aggregate term of thirty (30) to ninety-six (96) months’ incarceration,

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plus costs, fines, and restitution. On November 6, 2017, the court reinstated

Appellant’s direct appeal rights nunc pro tunc, upon Appellant’s request.

Appellant filed a timely notice of appeal on November 9, 2017. On November

14, 2017, the court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b), and Appellant complied. 2 On

February 12, 2018, Appellant’s counsel filed in this Court an application to

withdraw as counsel and an Anders brief.

As a preliminary matter, counsel seeks to withdraw his representation

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

493 (1967) and Commonwealth v. Santiago, 602 Pa. 159, 978 A.2d 349

(2009). Anders and Santiago require counsel to: 1) petition the Court for

leave to withdraw, certifying that after a thorough review of the record,

counsel has concluded the issues to be raised are wholly frivolous; 2) file a

brief referring to anything in the record that might arguably support the

appeal; and 3) furnish a copy of the brief to the appellant and advise him of

his right to obtain new counsel or file a pro se brief to raise any additional

points the appellant deems worthy of review. Santiago, supra at 173-79,

978 A.2d at 358-61. Substantial compliance with these requirements is

____________________________________________

2 Appellant’s Rule 1925(b) statement was not timely filed. Nevertheless, we
decline to waive Appellant’s issue because the trial court received the
statement and addressed Appellant’s issue in a written opinion. See
Commonwealth v. Burton, 973 A.2d 428 (Pa.Super. 2009) (en banc)
(allowing for immediate review under these circumstances).

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sufficient. Commonwealth v. Wrecks, 934 A.2d 1287, 1290 (Pa.Super.

2007). After establishing that counsel has met the antecedent requirements

to withdraw, this Court makes an independent review of the record to confirm

that the appeal is wholly frivolous. Commonwealth v. Palm, 903 A.2d 1244,

1246 (Pa.Super. 2006). See also Commonwealth v. Dempster, 2018 PA

Super 121 (filed May 8, 2018) (en banc).

In Santiago, supra, our Supreme Court addressed the briefing

requirements where court-appointed appellate counsel seeks to withdraw

representation:

Neither Anders nor McClendon[3] requires that
counsel’s brief provide an argument of any sort, let
alone the type of argument that counsel develops in a
merits brief. To repeat, what the brief must provide
under Anders are references to anything in the record
that might arguably support the appeal.

* * *

Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record
and counsel’s references to anything in the record that
arguably supports the appeal.

Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:

[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
____________________________________________

3 Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).

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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.

Id. at 178-79, 978 A.2d at 361.

Instantly, the petition to withdraw states counsel conducted a

conscientious review of the record and determined the appeal is wholly

frivolous. Counsel also supplied Appellant with a copy of the brief and a letter

explaining Appellant’s right to retain new counsel or to proceed pro se to raise

any additional issues Appellant deems worthy of this Court’s attention. In the

Anders brief, counsel provides a summary of the relevant facts and

procedural history of the case. Counsel’s argument refers to relevant law that

might arguably support Appellant’s issue. Counsel further states the reasons

for his conclusion that the appeal is wholly frivolous. Therefore, counsel has

substantially complied with the requirements of Anders and Santiago.

Appellant has not responded to the Anders brief pro se or with newly retained

counsel.

Counsel raises the following issue on Appellant’s behalf:

WAS THE EVIDENCE PRESENTED SUFFICIENT TO PROVE
THAT…APPELLANT CONSPIRED WITH TWO OTHERS AND
COMMITTED THE COGNATE OFFENSES AS CHARGED?

(Anders Brief at 6).4

____________________________________________

4Counsel also included an issue regarding his petition to withdraw as counsel,
which we have omitted from the statement of questions presented.

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Appellant argues the Commonwealth presented insufficient evidence to

support his convictions, because the Commonwealth failed to introduce

physical evidence corroborating the testimony of Appellant’s co-conspirators.

Appellant avers the evidence also supported his renunciation defense to the

charge for attempt to commit retail theft. Appellant concludes this Court

should vacate his convictions. We disagree.

With respect to a sufficiency claim:

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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003))

(emphasis added).

The Crimes Code defines the offense of retail theft in relevant part as

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follows:

§ 3929. Retail theft

(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;

* * *

(b) Grading.—

(1) Retail theft constitutes a:

* * *

(i) Felony of the third degree when the amount
involved exceeds $1,000….

* * *

18 Pa.C.S.A. § 3929(a)(1), (b)(1)(i).

The Crimes Code defines conspiracy, in part, as follows:

§ 903. Criminal conspiracy

(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

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(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(a), (e). To sustain a conviction for criminal conspiracy,

the Commonwealth must establish the defendant: (i) entered into an

agreement to commit or aid in an unlawful act with another person or persons;

(ii) with a shared criminal intent; and (iii) an overt act was done in furtherance

of the conspiracy. Commonwealth v. Jones, 874 A.2d 108, 121 (Pa.Super.

2005). Additionally:

Circumstantial evidence may provide proof of the
conspiracy. The conduct of the parties and the
circumstances surrounding such conduct may create a web
of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt.

* * *

An agreement can be inferred from a variety of
circumstances including, but not limited to, the relation
between the parties, knowledge of and participation in the
crime, and the circumstances and conduct of the parties
surrounding the criminal episode. These factors may
coalesce to establish a conspiratorial agreement beyond a
reasonable doubt where one factor alone might fail.

Id. at 121-22 (internal citations and quotation marks omitted) (emphasis

added). Nevertheless, circumstances such as an association between alleged

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conspirators, knowledge of the commission of the crime, presence at the scene

of the crime, and/or participation in the object of the conspiracy, are relevant

to prove a conspiracy, when “viewed in conjunction with each other and in the

context in which they occurred.” Commonwealth v. Lambert, 795 A.2d

1010, 1016 (Pa.Super. 2002), appeal denied, 569 Pa. 701, 805 A.2d 521

(2002).

Section 901 of the Crimes Code defines criminal attempt in pertinent

part as follows:

§ 901. Criminal attempt

(a) Definition of attempt.—A person commits an
attempt when, with intent to commit a specific crime, he
does any act which constitutes a substantial step toward the
commission of that crime.

* * *

(c) Renunciation.—

(1) In any prosecution for an attempt to commit a
crime, it is a defense that, under circumstances
manifesting a voluntary and complete renunciation of his
criminal intent, the defendant avoided the commission of
the crime attempted by abandoning his criminal effort
and, if the mere abandonment was insufficient to
accomplish such avoidance, by taking further and
affirmative steps which prevented the commission
thereof.

(2) A renunciation is not “voluntary and complete”
within the meaning of this subsection if it is motivated in
whole or part by:

(i) a belief that circumstances exist which increase
the probability of detection or apprehension of the
defendant or another participant in the criminal

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enterprise, or which render more difficult the
accomplishment of the criminal purpose; or

* * *

18 Pa.C.S.A. § 901(a), (c).

Additionally, the Crimes Code defines the offense of receiving stolen

property as follows:

§ 3925. Receiving stolen property

(a) Offense defined.—A person is guilty of theft if he
intentionally receives, retains, or disposes of movable
property of another knowing that it has been stolen, or
believing that it has probably been stolen, unless the
property is received, retained, or disposed with intent to
restore it to the owner.

(b) Definition.—As used in this section the word
“receiving” means acquiring possession, control or title, or
lending on the security of the property.

18 Pa.C.S.A. § 3925. To sustain a conviction for receiving stolen property,

the Commonwealth must prove the defendant: (1) intentionally acquired

possession of movable property of another; (2) with knowledge or belief it

was probably stolen; and (3) with the intent to permanently deprive the owner

of his property. Commonwealth v. Robinson, 128 A.3d 261, 265 (Pa.Super.

2015) (en banc). A “guilty knowledge” inference arises from the unexplained

possession of recently stolen goods. Id. at 267. Recency of theft, however,

is not the only evidence that can support an inference of guilty knowledge.

Id. at 268. “Circumstantial evidence of guilty knowledge may include, inter

alia, the place or manner of possession, alterations to the property indicative

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of theft, the defendant’s conduct or statements at the time of arrest (including

attempts to flee apprehension), a false explanation for the possession, the

location of the theft in comparison to where the defendant gained possession,

the value of the property compared to the price paid for it, or any other

evidence connecting the defendant to the crime.” Id. Nevertheless, absent

any other circumstantial evidence of guilty knowledge, mere possession of the

property at issue alone is insufficient to sustain a conviction for receiving

stolen property. Id. at 269.

Instantly, Mr. Hollenbach testified he and Appellant agreed in

September 2014 to steal DVDs from Target and sell them as used DVDs. He

stated he drove to Target in his black Volvo with Appellant several times that

month. Mr. Hollenbach explained each time, he and Appellant entered the

store, placed several DVDs in a backpack they had taken from inside the store,

left Target without paying, and sold the DVDs as used to FYE. Mr. Hollenbach

also identified his signature on several receipts from FYE, indicating FYE had

paid him in exchange for DVDs. Mr. Hollenbach said he and Appellant together

used the proceeds from the sales to FYE to buy heroin. He also testified he

and Appellant entered the Target on September 30, 2014, again to steal DVDs,

when police arrested him. Mr. Hollenbach said he saw Appellant leave the

Target and run through the parking lot after the arrest.

Mr. Martinez-Colon also testified he went to Target with Appellant and

Mr. Hollenbach in a black Volvo several times in September 2014. Mr.

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Martinez-Colon said the trio agreed to carry out Appellant’s plan to steal and

resell DVDs for money to buy heroin. He said on the occasions he

accompanied Mr. Hollenbach and Appellant to Target, he and/or the other two

men placed DVDs into a backpack from the store and exited without paying

for any items. Mr. Martinez-Colon also said he sold stolen DVDs to FYE several

times and identified his signature on receipts from FYE, which showed FYE

paid him for DVDs.

Mr. Schlopy, a Target asset protection employee, testified he

investigated the thefts in September 2014. He said during each incident, the

perpetrators removed a backpack from the sales floor, placed DVDs inside it,

left the store without paying for those items, and returned to a black sedan.

Mr. Schlopy explained when he recognized Mr. Hollenbach and Appellant as

they entered Target on September 30, 2014, he called Chief McKibben, and

followed the men through the store. He watched the duo take DVDs from the

shelf and place them into bags. Mr. Schlopy stated he saw Chief McKibben

arrest Mr. Hollenbach at the Target that day. He also explained Mr.

Hollenbach’s arrest was within Appellant’s line of sight. Mr. Schlopy testified

he saw Appellant run across the parking lot after police arrested his cohort.

He said later that day, he found Appellant’s photo ID and Social Security card

in the store. Mr. Schlopy noted the total retail value of the items Appellant

removed from Target exceeded $2,000.00. Mr. Schlopy also testified he

investigated an anomalous theft that occurred on September 24, 2014, during

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which Appellant removed from the Target a Garmin accessory with a retail

value of $249.99.

Finally, Chief McKibben testified he investigated the September 2014

thefts from Target with Mr. Schlopy. Chief McKibben reviewed surveillance

video and transactions receipts from FYE. He said Appellant removed from

Target merchandise with a cumulative retail value of $2,235.91.

The evidence demonstrated Appellant entered into an agreement with

two individuals to steal DVDs from Target and resell them for money to buy

heroin. The testimony of Mr. Hollenbach, Mr. Martinez-Colon, and Mr. Schlopy

showed Appellant and/or his cohorts executed their plan several times in

September 2014. Mr. Hollenbach’s and Mr. Schlopy’s testimony demonstrated

Appellant entered the Target on September 30, 2014, collected DVDs from

the sales floor, but did not leave the store with any merchandise after police

arrested Mr. Hollenbach that day. Consequently, the Commonwealth

established each element of the offenses at issue. See 18 Pa.C.S.A. §§

3929(a)(1), 903(a), 901(a), and 3925(a). To the extent Appellant complains

the evidence supported a renunciation defense to the attempt to commit retail

theft charge, the testimony of Mr. Hollenbach and Mr. Schlopy show Appellant

fled the Target on September 30, 2014, only after police arrested Mr.

Hollenbach. Further, Mr. Schlopy testified Mr. Hollenbach’s arrest was within

Appellant’s line of sight. Thus, Appellant’s act of abandoning the DVDs on

September 30, 2014, did not constitute renunciation. See 18 Pa.C.S.A. §

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901(c)(2)(i). Based upon the foregoing, the evidence supported Appellant’s

convictions. See Jones, supra. Following our independent review of the

record, we conclude the appeal is frivolous. See Palm, supra. Accordingly,

we affirm the judgment of sentence and grant counsel’s petition to withdraw.

Judgment of sentence affirmed; petition to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/11/2018

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