J-S71042-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAMETRIS GRAHAM :
:
Appellant : No. 1742 EDA 2018
Appeal from the Judgment of Sentence Entered February 14, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005703-2017
BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 11, 2019
Appellant Dametris Graham appeals from the judgment of sentence
imposed following his conviction for retail theft at a bench trial.1 Appellant
claims the Commonwealth presented insufficient evidence to support the
conviction, and the court illegally included restitution as part of his sentence.
We affirm.
The trial court summarized the relevant facts and procedural history of
this appeal as follows:
The Commonwealth presented testimony from Mr. Stephen
Trombetti . . . . Trombetti testified that he works for Acme
Markets as a Loss Prevention Officer, covering multiple stores
including the 24-hour Acme Market, located at 801 North
Lansdowne Avenue, in Upper Darby, PA. As a Loss Prevention
Officer, his duties include investigating external and internal theft.
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1 18 Pa.C.S. § 3929(a)(1).
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On August 9, 2017, between 8:00 a.m. and 9:00 a.m., Trombetti
was called to the Acme Market located at 801 North Lansdowne
Avenue in order to investigate an overnight theft. When he
responded to Acme, Trombetti viewed the video surveillance,
which covers most of the store. Trombetti testified that Acme has
two separate entrances consisting of an entrance door and exit
door. Although Acme is open twenty-four hours, it is their practice
to lock one entrance/exit to the store around 9:00 p.m. This
leaves customers to enter and exit on only one side of the building.
While watching the surveillance video, Trombetti observed a black
male with a shopping cart going down aisles of the store that
contain Dove products and Tide products; the male on the video
was loading his cart with Dove soaps and Tide Pods. From the
angle of the surveillance video, Trombetti could only see the
male’s head. From the video surveillance, Trombetti could tell
that after the male walked down the aisles, the shelves were bare
which alerted him as to what items were specifically targeted
because it is not common practice for the shelves to be bare;
rather, the shelves are usually always full as part of the re-
stocking process.
Trombetti also viewed the video surveillance of the exit and
entrances, both the accessible side and the previously locked side.
Trombetti saw the same male approach the side that was locked
to the public; the male proceeded to unlock the door from the
inside of the store and walk out into the vestibule, where he then
pried open the sliding doors that lead from the vestibule to the
outside, looked around for a couple of minutes, and then
completely exited the store with his cart full of unbagged
merchandise. Trombetti told the [c]ourt that if the merchandise
had gone through a register line, as it should have, it would have
certainly been bagged.
At trial, the Commonwealth marked the video surveillance as C-
1. While the video was played, Trombetti pointed out to the
[c]ourt what was occurring on the video; the timeframe was
stamped as 3:09 a.m. Trombetti pointed out where the male can
be seen physically opening the locked door (which is typically
automatic) leading into the vestibule and then prying open the
door from the vestibule to the outside of the store and pushing his
full cart of unbagged Dove and Tide items through the doors and
into the outside. The man then comes back and physically closes
the doors that he pried open.
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As part of his investigation, Trombetti also reviewed the register
logs and found that nothing of that amount or value was rung up
at any of the registers during that time of the early morning.
Based upon his eleven years of experience at Acme, Trombetti
told the [c]ourt that it would not have been possible within the
timeframe that the male was in the store to enter and have all of
the items in his cart rung up at register. In addition, based upon
the empty shelves and his years of experience, Trombetti
estimated that the value of the stolen merchandise was
approximately $1,500.00.
Trombetti testified that the man on the video was not an employee
of Acme and did not have permission from anyone at Acme to
enter the store and remove the items. Based upon his
investigation, Trombetti called the police, who later informed him
that they [identified] the subject as Appellant.
The attorney for the Commonwealth and attorney for Appellant
agreed as follows:
If called to testify, Officer Redheffer from the Upper Darby
Police Department would have testified that he responded,
gathered the information and made an initial report.
Detective Lydon of the Upper Darby Police Department was
the initial investigator and . . . they put out still frames of
the video and tried to gather information. Information came
in from a separate incident where a license plate was
recorded. That license plate belonged to an individual
female and it gave an address. The address also had a
known occupant, Appellant. Detective Lydon then took a
photo, had a photo of Appellant, and compared it to the
video and was able to [identify] Appellant as the man in the
surveillance video. If called to testify, he would state on
record that this is how he made the [identification] of
Appellant from this incident.
Trial Ct. Op., 7/30/18, at 1-4 (record citations omitted).
On October 18, 2017, the Commonwealth filed a criminal information,
charging Appellant with retail theft. The court conducted a bench trial on
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January 10, 2018, finding Appellant guilty of felony retail theft.2 On February
14, 2018, the court sentenced Appellant to one to two years’ imprisonment
and restitution in the amount of $1,500.
On February 23, 2018, Appellant timely filed a post-sentence motion
challenging the weight and sufficiency of the evidence. Following a hearing,
the court denied Appellant’s post-sentence motion on May 1, 2018.
On May 30, 2018, Appellant timely filed a notice of appeal. On June 4,
2018, the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement, which
Appellant timely filed. The trial court filed a responsive Pa.R.A.P. 1925(a)
opinion, concluding Appellant was not entitled to relief.
Appellant now presents two issues for our review:
1) Whether the evidence is legally insufficient to sustain the
conviction for retail theft since Appellant was not identified as the
offender beyond a reasonable doubt, where there was no in-court
identification and video of the purported incident was not admitted
into evidence[.]
2) Whether the restitution order is illegal and must be vacated
since the amount imposed is unsupported by the record[.]
Appellant’s Brief at 5.
In his first issue, Appellant contends that the Commonwealth’s lone
witness, Trombetti, was not present at the supermarket at the time of the
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2 Retail theft is graded as a third degree felony when it is a third or subsequent
offense or the amount involved exceeds $1,000. 18 Pa.C.S. § 3929(b)(1)(iv),
(v). Here, Appellant was convicted of retail theft on three prior occasions, and
the amount at issue for the instant offense exceeded $1,000. Criminal
Information, 10/18/17, at 1.
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theft, but viewed the incident on the surveillance video after it occurred. Id.
at 12. Appellant maintains Trombetti could not identify the individual depicted
in the surveillance video, and his testimony failed to establish that Appellant
committed the offense. Id. Appellant acknowledges that the trial court also
viewed the surveillance video and relied on it to identify Appellant as the
perpetrator. Id. Nevertheless, Appellant asserts that the court’s conclusion
that Appellant was the same man in the video was legally insufficient. Id. at
13. Further, Appellant claims that the court should not have relied on the
video, because no party moved for its admission into evidence. Id.
Appellant insists that his trial counsel’s defense strategy was to argue
that Appellant was not the same individual depicted in the video. Id. at 14.
Regarding the parties’ stipulation about testimony from Detective Lydon,
Appellant emphasizes that the detective would have explained how he
compared a photograph to the surveillance video to conclude that Appellant
was a suspect. Id. Because the parties merely intended for the stipulation
to show how the police established Appellant as a suspect, Appellant argues
that the court should not have utilized it as a means to defeat Appellant’s
misidentification defense. Id.
We apply the following standard when reviewing a sufficiency claim:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. 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
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to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. 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. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (brackets
and citation omitted). “Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be considered.”
Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super. 2018) (citation
omitted); see also Commonwealth v. Lovette, 450 A.2d 975 (Pa. 1982)
(explaining that a sufficiency claim will not be assessed on a diminished
record, but rather on the evidence actually presented to the finder of fact).
A person is guilty of retail theft if he “takes possession of . . . any
merchandise . . . offered for sale by any store . . . 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).
Instantly, the Commonwealth presented Trombetti, who testified about
his investigation into the theft at the supermarket. As part of his investigation,
Trombetti reviewed surveillance video, including footage of Appellant loading
a shopping cart with soap and laundry detergent. The video showed the
individual identified as Appellant forcing open a locked door and departing the
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supermarket with a cart full of merchandise that was not paid for at any of
the cashiers’ counters.
During Trombetti’s testimony, the Commonwealth played the
surveillance video. The parties also stipulated that, if called to testify, Upper
Darby Police would explain how they utilized the video to identify Appellant as
a suspect. Significantly, the court viewed the video and determined that
Appellant committed the theft based on Appellant’s “facial features, height
and mannerisms.” Trial Ct. Op. at 4. Therefore, it was within the court’s
province as fact-finder to draw its own conclusions after viewing the
surveillance video, and this evidence alone could establish Appellant’s identity
as the perpetrator. See Palmer, 192 A.3d at 89; see also Commonwealth
v. Childs, 63 A.3d 323 (Pa. Super. 2013) (reiterating that video surveillance
footage was sufficient evidence for the fact finder to identify defendant).
To the extent that Appellant complains that the parties did not move for
admission of the video into evidence, the prosecutor marked the compact disc
containing the video footage as exhibit C-1. The prosecutor indicated that
defense counsel “agrees that this video is the evidence that we would bring in
today.” N.T., 1/10/18, at 10. Appellant’s trial counsel confirmed that he had
received a copy of the video and raised no objection before the prosecutor
played the video. Although the court did not formally admit the video into
evidence, the parties regarded the video as admissible for purposes of trial.
Under these circumstances, we deem the video part of the entire record that
we must evaluate. See Thomas, 194 A.3d at 166. Based upon the foregoing,
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we conclude that sufficient evidence supported Appellant’s conviction for retail
theft.
In his second issue, Appellant argues that the restitution amount in his
case is excessive, speculative, unsupported by the record, and illegal, because
Trombetti provided a mere estimate regarding the value of the items removed
from the supermarket. Appellant’s Brief at 16. Appellant emphasizes that the
Commonwealth did not submit logs to establish the prices of the stolen goods.
Id. Further, Appellant claims that the quantities of stolen goods remained
unknown, because the supermarket conducted inventory on a sporadic basis.
Id. Absent more, Appellant insists there was no way for the court to
determine whether $1,500 worth of product could even fit into a single
shopping cart.3 Id.
Initially, we note that:
[i]n the context of criminal proceedings, an order of restitution is
not simply an award of damages, but, rather, a sentence. An
appeal from an order of restitution based upon a claim that a
restitution order is unsupported by the record challenges the
legality, rather than the discretionary aspects, of sentencing. The
determination as to whether the trial court imposed an illegal
sentence is a question of law; our standard of review in cases
dealing with questions of law is plenary.
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3 Appellant did not object to the amount of restitution at the sentencing
hearing or in his post-sentence motion. Nevertheless, Appellant’s claim that
the restitution order is unsupported by the record challenges the legality of
his sentence and cannot be waived. Commonwealth v. Stradley, 50 A.3d
769, 772 (Pa. Super. 2012).
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Commonwealth v. Holmes, 155 A.3d 69, 78 (Pa. Super. 2017) (en banc)
(citation omitted).
“It is the Commonwealth’s burden of proving its entitlement to
restitution.” Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super.
2010) (citation omitted).
When fashioning an order of restitution, the . . . court must ensure
that the record contains the factual basis for the appropriate
amount of restitution. The dollar value of the injury suffered by
the victim as a result of the crime assists the court in calculating
the appropriate amount of restitution. The amount of the
restitution award may not be excessive or speculative. It is well-
settled that [a]lthough it is mandatory under section 1106(c) to
award full restitution, it is still necessary that the amount of the
full restitution be determined under the adversarial system with
considerations of due process.
Id. (citations and quotation marks omitted).
Instantly, Trombetti testified that Appellant loaded his shopping cart
with Dove soap and Tide Pods. The surveillance video revealed “the shelves
were bare” where these items would normally be found. N.T. at 9. Trombetti
confirmed that the shelves are usually full during business hours. Based on
his eleven years of experience working for Acme, and the amount of product
that would normally occupy the shelves, Trombetti estimated that Appellant
removed $1,500 worth of product from the supermarket. At sentencing, the
prosecutor requested $1,500 in restitution, which the court included in its
sentencing order. Because Trombetti’s trial testimony provided a sufficient
factual basis for the restitution amount, Appellant is not entitled to relief on
this claim. See Atanasio, 997 A.2d at 1183.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/19
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Com. v. Graham, D.
Combined Opinion