HomeMy WebLinkAboutCP-21-CR-1443-2005
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
CHARGE; RETAIL THEFT
LARRY JEROME
BRICKHOUSE
OTN: H929655-6
CP-2l-CR-1443-2005
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., February 23, 2006.
Defendant was found guilty following a jury trial of retail theft, a second
offense and misdemeanor of the second degree. 1 He received a sentence in the
standard range of the guidelines of not less than four months nor more than
twenty-three months in the county prison? From the judgment of sentence,
Defendant has filed an appeal to the Pennsylvania Superior Court. 3
On appeal, Defendant challenges the sufficiency of the evidence to sustain
the jury's verdict. 4 This position is particularized in a statement of matters
complained of on appeal as follows:
The evidence introduced, at trial, by the Commonwealth
was not sufficient to sustain the conviction for the offense of
retail theft. The store security individual did not see Mr.
Brickhouse conceal any merchandise. He saw Mr. Brickhouse
enter the store's dressing room with items. Then the store
security camera shows Mr. Brickhouse exiting the dressing
room with items. The security personnel unsuccessfully
attempted to stop Mr. Brickhouse after he exited the store.5
1 Notes of Testimony 66-67, Trial, September 14,2005 (hereinafter NT ~.
2 Order of Court, October 25,2005.
3 Notice of Appeal, filed February 2,2006.
4 Concise Statement of Matter Complained of on Appeal, filed February 6, 2006.
5 Concise Statement of Matter Complained of on Appeal, filed February 6, 2006.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925.6
STATEMENT OF FACTS
On a challenge to the sufficiency of the evidence in a criminal case, the
evidence is to be viewed "in the light most favorable to the Commonwealth" and
"all reasonable inferences in the Commonwealth's favor" are to be entertained.
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996)
(quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286,
1288 (1984)).
Viewed in this light, the evidence in this case may be summarized as
follows: At 8:45 p.m. on Thursday, March 24, 2005, Defendant was in Boscov's
Department Store in Camp Hill, Cumberland County, Pennsylvania. 7 He was
wearing a loose-fitting, quilted-type winter jacket. 8
Defendant was in the men's department of the store.9 He took seven or
eight shirts from a Chaps display section and proceeded into a dressing room, 10
where he stayed for one minute and forty seconds. 11 When he came out of the
room, he was carrying fewer items than when he went in, and a subsequent search
of the room revealed no shirts left behind. 12
Defendant left the store without paying for any merchandise. 13 Upon being
confronted in the parking lot by a female security officer, Defendant fled toward a
white Chevrolet Corsica14 occupied by another male, IS while a second security
6 Pa. RA.P. 1925.
7NT 6-7.
8 NT 7; Commonwealth's Exhibits 1-8.
9 NT 7.
10 NT 8; Com. Ex. 1-6,8.
11 NT 16; Com. Ex. 6-8.
12 NT 9-10,20; Com. Ex. 6-8.
13 NT 10.
14NT 11-12.
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officer (who happened to be an off-duty police officerl6) ran after him yelling,
"Stop, police!,,17 Defendant got into the driver's seat of the Chevrolet18 and tried
to close the door on the arm of the second security officer. 19 Defendant succeeded
in making his escape by driving off. 20
However, the second security officer had gotten most of the license plate
number of the vehicle,21 and a surveillance camera in the store captured Defendant
on videotape immediately before and after his brief stop at the fitting room.22
Defendant's picture was run in the newspaper, which resulted in his identification
by a tipster,23 and it later transpired that the car was owned by his girlfriend?4
In a telephone interview with police on April 27, 2005, Defendant denied
being the person in the store.25 However, in a second telephone interview, on June
8, 2005, he advised the police that he wanted to clear the matter up and admitted
that he had taken the items in question?6 On June 10, 2005, in a face-to-face
meeting with Camp Hill Borough Police Officer Douglas Hockenberry, Defendant
again confessed to the crime?7 The testimony of Officer Hockenberry regarding
this interview was as follows:
Q Okay. After reading the Defendant his rights, what
did he tell you?
15 NT 13.
16 See NT 5.
17NT 11-12.
18 NT 13.
19 NT 26.
20 NT 13.
21 NT 13.
22 NT 14-19; Com. Ex. 1-8.
23 NT 30.
24 NT 30.
25 NT 32.
26 NT 33.
27 NT 34-35.
3
A He advised me that he was the one that was in
Boscov[']s, and that he stole items from Boscov['s] on the date
in question. I asked him why did he steal, because most of our
thefts are usually drug related. I asked him if he had a drug
problem, and he advised, no, that he didn't. He had to pay
bills, and that's what the clothing went to, is to pay bills?8
At the conclusion of the trial, the jury found Defendant guilty as charged of
retail theft.29 In reaching this verdict, the jury obviously did not find credible
Defendant's version of the events: (a) that he decided to buy a bunch of shirts at
Boscov's although he was unemployed at the time; (b) that he tried on a number of
shirts in the dressing room, realized that the store was closing, left some of the
shirts in the dressing room and put others back on the shelf, and departed the store;
( c) that he fled from the female security guard because she was, as far as he was
concerned, an unknown assailant; (d) that there was no other person in the car he
got into; (e) that he never saw the male security guard on whose arm he
purportedly closed the car door; (f) that he had not lied to police in his initial
interview by claiming he had not been in the store; (g) that he never told police
that he needed money to pay bills; and (h) that he never admitted to police that he
had stolen anything. 30
Defendant was sentenced on October 25, 2005.31 His prior record included
three separate felony drug convictions, one misdemeanor drug conviction, a theft
conviction and another shoplifting conviction. 32 As noted, the sentence imposed
was within the standard range of the guidelines.
DISCUSSION
In an evaluation of the sufficiency of the evidence presented at trial, the
proper test is "whether, viewing the evidence admitted at trial in the light most
28 NT 35.
29 NT 66.
30 NT 40-44.
31 Order of Court, October 25,2005.
32 Court's Exhibit 1, Hearing on Defendant's Post-Sentence Motion, January 4,2006.
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favorable to the Commonwealth and drawing all reasonable inferences in the
Commonwealth's favor, there is sufficient evidence to enable the trier of fact to
find every element of the [crime] charged beyond a reasonable doubt."
Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996)
(quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286,
1288 (1984)). The trier of fact is "free to believe all, part or none of the
evidence." Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257
(1986).
The elements of the offense of retail theft under Section 3929(a)(1) of the
Crimes Code are (1) that the defendant took possession of, carried away or
transferred, caused to be carried away or transferred, a certain item, (2) that the
item was merchandise displayed, held, stored or offered for sale by a merchant, (3)
that the location of the alleged theft was a store or other retail mercantile
establishment, and (4) that the defendant took possession of, carried away,
transferred, or caused to be carried away or transferred, the item with the intention
of depriving the merchant of the possession, use, or benefit of such merchandise
without paying the full retail value thereof. See Act of December 6, 1972, P.L.
1482, 91, as amended, 18 Pa. C.S. 93929(a)(1) (2005 Supp.).
As with any crime, the elements of retail theft, including the requisite mens
rea, may be proven by circumstantial evidence. Commonwealth v. Kim, 2005 P A
Super. 383, ,-rll, 888 A.2d 847, 852. It was Thoreau who observed that "[s]ome
circumstantial evidence is very strong, as when you find a trout in the milk. ,,33
By statute, concealment of unpurchased merchandise of a store by a person
gives rise to a permissible inference that the act was done with the intent to
deprive the merchant of the benefit of the item without paying its full value. Act
of December 6, 1972, P.L. 1482, 91, as amended, 18 Pa. C.S. 93929(c) (2005
33 Thoreau, Henry David, Journal, November 11, 1854.
5
Supp.). Flight can be an indicator of consciousness of guilt. Commonwealth v.
Dent, 2003 PA Super. 457, ,-r7, 837 A.2d 571,576.
A prior inconsistent statement can impeach a defendant's credibility. Pa.
R.E. 613(a); Commonwealth v. Woods, 710 A.2d 626, 630 (Pa. Super. Ct. 1998).
A confession, of course, is one of the strongest indicia of a defendant's guilt
available. "The most devastating evidence against one accused of crime is a
confession or admission of guilt." Commonwealth v. Wilson, 485 Pa. 409, 412,
402 A.2d 1027, 1029 (1979).
In the present case, the absence of shirts in the fitting room after
Defendant's emergence from the fitting room with fewer shirts in view than when
he had entered the fitting room strongly suggested that he was concealing
merchandise on his person. This implication, combined with his departure from
the store and flight from security guards, his untruth to police about having been in
the store, and his ultimate confession on two occasions to police that he had
committed the crime charged, represented ample evidence from which a
reasonable jury could have concluded that the elements of retail theft had been
proven beyond a reasonable doubt. The jury was not required to accept
Defendant's version of the events, which it could have found was inconsistent
with prior statements he had made and, certainly, in direct conflict on material
points with the testimony and physical evidence presented by the Commonwealth.
F or the foregoing reasons, it is believed that the evidence was sufficient to
support the jury's verdict of guilty of retail theft, and that the judgment of sentence
was therefore properly entered.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Jaime M. Keating, Esq.
Chief Deputy District Attorney
6
Aria M. Waller, Esq.
Deputy Public Defender
7