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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ELIZABETH DALTON
Appellant No. 89 MDA 2016
Appeal from the Judgment of Sentence December 2, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0000809-2015
BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J. FILED DECEMBER 09, 2016
Appellant, Elizabeth Dalton, appeals from the judgment of sentence
entered following a bench trial in the Berks County Court of Common Pleas.
Dalton argues that the evidence adduced at trial was insufficient to support
her convictions and that the verdict was against the weight of the evidence.
After careful review, we affirm.
The relevant facts and procedural history are as follows. On December
1, 2014, Rachel Merkel, asset protection manager for Target in Exeter, Berks
County, Pennsylvania, discovered that baby formula was missing from the
store. Merkel reviewed the previous day’s security footage and observed that
a man, later identified as Eric Carr, had removed all of the baby formula
from the shelf and concealed it in a tote. Merkel then began to track Carr’s
movements throughout the store, and determined that Carr entered the
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Target alone and went directly to the health and beauty section. Dalton and
her husband, Larry Brown, were already located in that section of the store.
Before Carr entered the health and beauty section, Dalton appeared to ask a
nearby Target employee a question, and Dalton and the Target employee
walked away together. As Carr entered the health and beauty section, Brown
met Carr in the toothpaste aisle. Brown and Carr removed teeth whitening
products from a shelf and concealed the items in Carr’s tote. Dalton, Brown,
and Carr then met in the shaving product aisle, where Brown and Carr
placed shaving products in Carr’s tote. Following the removal of the shaving
products, Carr walked towards the baby formula aisle, while Brown and
Dalton left their shopping cart in the center of the store, and exited without
purchasing any items. Once Carr removed the baby formula, he exited the
store without paying for the items he was carrying in the tote. Exterior
footage of the store revealed that Dalton and Brown left the premises via a
car parked in an adjoining parking lot, while Carr exited by taxicab.
Dalton was charged with two counts of retail theft and one count of
conspiracy to commit retail theft. Dalton proceeded to a bench trial on July
29, 2015, and was found guilty on all three counts. On December 2, 2015,
Dalton was sentenced to 12 to 24 months’ imprisonment followed by
probation. Dalton filed post-sentence motions, which were denied. This
timely appeal follows.
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Dalton raises two issues on appeal. First, Dalton argues that the
Commonwealth failed to present sufficient evidence to prove that she
conspired with Brown and Carr to commit retail theft and that she was an
accomplice to Carr’s retail theft. See Appellant’s Brief, at 5. Dalton contends
that the Commonwealth only established her mere presence at the scene of
the crime. See id. Dalton avers that, without additional evidence that she
aided or intended to aid in the commission of retail theft, she cannot be held
responsible for the actions of Brown and Carr. See id.
The standard we apply in reviewing the sufficiency of
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
that of 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 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 trier 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. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012)
(citation omitted; brackets in original).
Section 903 of the Crimes Code defines the crime of conspiracy.
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(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.
18 Pa.C.S.A. § 903(a)(1)-(2).
[T]o sustain a conviction for criminal conspiracy, the
Commonwealth must establish that the defendant (1) entered
into an agreement to commit or aid in an unlawful act with
another person or persons, (2) with a shared criminal intent and
(3) an overt act was done in furtherance of the conspiracy. This
overt act need not be committed by the defendant; it need only
be committed by a co-conspirator.
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, a
conviction for conspiracy requires proof of the existence of a
shared criminal intent. An explicit or formal agreement to
commit crimes can seldom, if ever, be proved and it need not
be, for proof of criminal partnership is almost invariably
extracted from the circumstances that attend its activities. Thus,
a conspiracy may be inferred where it is demonstrated that the
relation, conduct, or circumstances of the parties, and the overt
acts of the co-conspirators sufficiently prove the formation of a
criminal confederation.
Commonwealth v. Knox, 50 A.3d 732, 740 (Pa. Super. 2012) (citation
omitted).
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An accomplice is also legally accountable for the conduct of the other
person involved in committing the crimes. See 18 Pa.C.S.A. § 306(b)(3).
The Crimes Code defines an accomplice as follows.
A person is an accomplice of another person in the commission
of an offense if:
(1) with the intent of promoting or facilitating the commission
of the offense he:
(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other
person in planning or committing it; or
(2) his conduct is expressly declared by law to establish his
complicity.
18 Pa.C.S.A. § 306(c). “Both requirements may be established wholly by
circumstantial evidence. Only the least degree of concert or collusion in the
commission of the offense is sufficient to sustain a finding of responsibility
as an accomplice. No agreement is required, only aid.” Commonwealth v.
Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005) (en banc) (citations
and quotations omitted). Dalton’s conviction for retail theft was premised
upon the theory of accomplice liability. Section 3929 of the Crimes Code
enumerates retail theft 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
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merchant of the possession, use or benefit of such
merchandise without paying the full retail value
thereof[.]
18 Pa.C.S.A. § 3929(a)(1).
Here, the Commonwealth presented evidence that Dalton and Brown
parked in an adjoining parking lot and entered and exited the store together.
Merkel testified that Dalton asked the Target employee a question, which
resulted in the Target employee and Dalton walking away from the health
and beauty section of the store. Once the Target employee left the section,
Brown met Carr in an aisle in the health and beauty section and the two
began to steal items and conceal the items in Carr’s tote. The surveillance
footage shows that after Brown helped Carr steal items, Dalton and Brown
left the store without purchasing anything. It is undisputed that Carr
committed retail theft.
Based upon our review of the record, we agree with the trial court that
the evidence is sufficient to find that Dalton engaged in a conspiracy to
commit retail theft. As discussed above, a conspiracy can be inferred from
the relation, conduct and circumstances of the co-conspirators. The evidence
shows that Dalton is married to Brown, entered and exited the store with
Brown, and was present while Brown and Carr concealed items in Carr’s
tote. The Commonwealth also presented evidence that Dalton performed an
“overt act in furtherance of the conspiracy” when she distracted the Target
employee. This sufficiently proves the formation of a conspiracy under the
statute.
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Further, the evidence was sufficient to establish that Dalton assisted
Carr commit retail theft. The Commonwealth presented evidence from which
the trial court reasonably inferred that Dalton aided Carr by distracting the
Target employee and leading the employee away from the health and beauty
section so Carr could steal the items. This act is sufficient to establish
Dalton’s liability as an accomplice for the crime of retail theft. Therefore,
viewing the evidence in the light most favorable to the Commonwealth as
verdict winner, we find the evidence sufficient to convict Dalton of
conspiracy to commit retail theft and retail theft. Thus, Dalton’s first
argument on appeal fails.
Lastly, Dalton argues that her convictions were against the weight of
the evidence. A challenge to the weight of the evidence “concedes that the
evidence is sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in favor of
acquittal that a guilty verdict shocks one’s sense of justice.”
Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal
denied, 99 A.3d 925 (Pa. 2014) (citation omitted).
When the challenge to the weight of the evidence is predicated
on the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is
so unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not
cognizable on appellate review. Moreover, where the trial court
has ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the verdict is
against the weight of the evidence. Rather, appellate review is
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limited to whether the trial court palpably abused its discretion in
ruling on the weight claim.
Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal
quotes and citations omitted).
To support her weight of the evidence claim, Dalton essentially
reiterates her sufficiency of the evidence argument. See Appellant’s Brief, at
10-17. Dalton argues that the verdict “shocks one’s sense of justice” and
should not be allowed to stand. See id. at 5. At trial, the Commonwealth
presented evidence in the form of the testimony of Merkel and the
surveillance footage. Dalton did not testify or call any witnesses on her
behalf. Therefore, Dalton’s guilt hinged on the trial court’s determination of
Merkel’s credibility and its interpretation of Dalton’s actions in the
surveillance footage. It is clear that the trial court found Merkel’s testimony
credible, and concluded that Dalton conspired with Brown and Carr to steal
from the store. We discern no abuse of discretion in the court’s assessment
of the credibility of the witnesses or the weight of evidence at trial. We
cannot agree with Dalton that the trial court’s guilty verdict “shocks one’s
sense of justice.” Thus, we conclude that Dalton’s second issue merits no
relief.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2016
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