HomeMy WebLinkAbout94-0562 Criminal COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
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ARTIE ALLEN : 94-0562 CRIMINAL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., December 8, 1994
This case arises out of Defendant's alleged receipt of stolen
property from three department stores~ and his alleged
participation in a retail theft at one of the stores.2 Defendant
was found guilty of the offenses following a jury trial,3 and was
thereafter sentenced.4 From the judgment of sentence Defendant has
appealed to the ~uperior Court.5
In a Statement of Matters Complained of on Appeal, the
following reasons for the appeal are given:
1. The Commonwealth failed to prove a loss in
any of the thefts.
2. The Commonwealth asserted that [Defendant]
participated in a retail theft, taking things
from Walmart, Ollies and Hills. However, all
evidence submitted was only evidence that the
merchandise might have come from any of those
~ Count B, Information, Commonwealth v. Allen, 562 Criminal
1994.
Count A, Information Commonwealth v. Allen, 562 Criminal
1994. '
N.T. 146-47, Trial, Commonwealth v. Allen, 562 Criminal
1994 (hereinafter N.T. ~).
4 N.T. 4-5. In re: Sentencing Colloquy, Commonwealth v.
Allen, 562 Criminal 1994.
s Notice of Appeal, October 25, 1994. No post-sentence
motion was filed by Defendant.
94-0562 CRIMINAL TERM
stores. Each of those stores has more than
one branch, and the testimony from all people
who worked in all the stores was that you
could not tell by looking at the garment
whether or not it had been bought or stolen.
3. The Commonwealth submitted no evidence of
inventory or cash register receipts or cash
register tapes which would show that the
merchandise was missing from each of the
stores. Consequently, the Commonwealth failed
to prove a loss. A loss is essential when
making out a case for theft.6
This Opinion is written pursuant to Pennsylvania Rule of
Appellate Procedure 1925, in support of the judgment of sentence.
STATEMENT OF FACTS
At trial, the Commonwealth presented evidence tending to show
that on Tuesday, March 15, 1994, around 5:00 p.m. Defendant and two
other males were observed in Hills Department Store in a mall in
Carlisle, Cumberland County, Pennsylvania, concealing items of
clothing upon their persons.7 When confronted by a security guard,
they fled in different directions.8
Police were called.9 The guard gave them the license number
of a car containing a female driver who had been seen earlier with
6 Statement of Matters Complained of on Appeal, filed
November 3, 1994
N.T. 13-18, 89.
N.T. 15.
N.T. 15.
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the three males.~° Defendant was apprehended almost immediately by
police near a theater at the mall,~ and the car with the female and
a second male in it was stopped as it left the mall parking lot.~2
In response to police concerns as to whether the occupants of the
car were armed, Defendant told the officer who had arrested him
that "they ain't got no guns.''~3 The third male was located and
arrested about an hour later.TM
Defendant had several sporting-wear jackets on his person
under his own coat;~ more sports-wear garments were found hidden
near an air-conditioning unit at the theater where Defendant had
been spotted by the officer who arrested him;~6 and the car
contained voluminous amounts of merchandise in the form of
sporting-wear garments from Hills Department Store, Wal-Mart, and
a bargain outlet called Ollie's, as well as stickers, tags and
tickets from those stores.~7 The items were "thrown in clumps";~8
~0 N.T. 18.
~ N.T. 94-96.
~2 N.T. 51-52.
~3 N.T. 97.
~4. N.T. 101-02.
~ N.T. 98-99.
~6 N.T. 104-05.
See Commonwealth's Exhibits 1-6 (bags full of merchandise);
N.T. 80-92 (testimony of Hills representative); N.T. 67-80
(testimony of Wal-mart representative); N.T. 56-67 (testimony of
Ollie's representative).
~8 N.T. 53.
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there were no bags for them, no boxes, and no receipts.~9 The value
of Hills merchandise was given by a police officer as $452.70, that
of Wal-Mart merchandise as $176.26, and that of the Ollie's
merchandise as $179.96.20 Each of the establishments in question
has at least one store in Cumberland County.2~
At the Carlisle Police Station shortly after his arrest,
Defendant gave a false name to police.22 However, he subsequently
made a statement, indicating where the car had come from and
admitting that he and his companions had used it to go to Wal-Mart,
Ollie's and Hills and that they had removed clothing from those
stores.23
At trial, Defendant presented testimony from his younger
brother, who identified two photographs as'being of Defendant, and
from his girlfriend, who described his outerwear on the day of the
alleged offenses.24 One photograph showed Defendant wearing a
"green quarter-length jacket," and the other showed him wearing a
~9 N.T. 53.
20 N.T. 38. The jury, however, placed a valuation on the
Hill's merchandise of less than $150. N.T. 147.
2~ N.T. 12 (Hills); N.T. 67 (Wal-Mart); N.T. 56-57.
N.T. 36.
N.T. 36-39.
N.T. 121-23.
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"quarter-length [White] Sox jacket."25 Defendant's girlfriend
testified that on the morning of March 15, 1994, he had been
wearing a green khaki jacket, a White Sox jacket and green jeans.2~
Defendant was charged with retail theft (third or subsequent
offense) in connection with the Hills incident,~7 and theft by
receiving stolen property in connection with merchandise from all
three stores.28 On each count, liability as both a principal and
an accomplice was alleged.~9
The jury was instructed on accomplice liability.3° With
respect to the receiving charge, the Court also instructed the jury
that an element of the offense which the Commonwealth was required
to prove beyond a reasonable doubt was that the property in
question was stolen property.3~
Following the jury's verdicts of guilty, and after receipt of
a presentence investigation report, the Court imposed concurrent
N.T. 122.
N.T. 123-25. Defendant did not himself testify.
Act of December 6, 1972, P.L. 1482, ~1, as amended, 18 Pa.
C.S. ~3929.
Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §3925.
Information, Commonwealth v. Allen, 562 Criminal 1994.
N.T. 135-36.
N.T. 133. The Court also defined stolen property in
accordance with the standard instruction. N.T. 134.
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94-0562 CRIMINAL TERM
sentences for the two offenses.32 The sentence for the more serious
crime of retail theft (third or subsequent offense), a felony, was
in the mitigated range because of the absence of any violence.3~
STATEMENT OF LAW
Sufficiency of the evidence. In reviewing a challenge to the
sufficiency of the evidence, a court "views the evidence presented
and all reasonable inferences taken therefrom in the light most
favorable to the Commonwealth as verdict winner. The test is
whether the evidence, viewed in this light, is sufficient to prove
guilt beyond a reasonable doubt." Commonwealth v. Douglass, 403
Pa. Super. 105, 115, 588 A.2d 53, 58 (1991) (emphasis added). It
is within the province of the factfinder to determine the weight to
be given to each witness's testimony and to believe all, part or
none of the evidence. Commonwealth v. Tullius, 399 Pa. Super. 172,
175, 582 A.2d 1, 2 (1990), allocatur denied, 527 Pa. 645, 593 A.2d
418 (1991).
"'[T]he Commonwealth may sustain its burden of proving every
element of [a] crime beyond a reasonable doubt by means of wholly
circumstantial evidence.'" Commonwealth v. Donahue, 428 Pa. Super.
259, 272, 630 A.2d 1238, 1244, quoting Commonwealth v. Harper, 485
Pa. 572, 576, 403 A.2d 536, 538 (1979).
32 N.T. 4-5, In re: Sentencing Colloquy, Commonwealth v.
Allen, 562 Criminal 1994.
23 N.T. 5, In re: Sentencing Colloquy, Commonwealth v. Allen,
562 Criminal 1994.
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94-0562 CRIMINAL TERM
Accomplice liability. Under Section 306 of the Crimes Code,
"[a] person is legally accountable for the conduct of another
person when ... he is an accomplice of such other person in the
commission of the offense."34 A person is an accomplice of another
person in the commission of an offense if, with the intent of
promoting or facilitating the commission of the offense, he (a)
solicits such other person to commit it or (b) aids or agrees or
attempts to aid such other person in planning or committing it.3s
Where possession is an element of a crime, proof of the element as
to a defendant may be based upon accomplice liability.
Commonwealth v. Allen, 425 Pa. Super. 615, 625 A.2d 1266 (1993);
see Commonwealth v. Donahue, 428 Pa. Super. 259, 630 A.2d 1238
(1993).
Requirement of proof in the theft cases that property was
stolen. Retail theft is committed when a person "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
~4 Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S.
~306(b)(3).
~s Act of December 6, 1972, P.L. 1482, ~1, 18 Pa. C.S.
§306(c).
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94-0562 CRIMINAL TERM
thereof."36 The statute regarding retail theft further provides
that
[ a ] ny 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
Theft by receiving stolen property is committed when a person
"intentionally receives, retains, or disposes of movable property
of another knowing that it has been stolen, or believing that it
has probably been stolen .... ..38 An element of the offense of
receiving stolen property is that the property received is in fact
stolen. Commonwealth v. Tillery, 417 Pa. Super. 26, 611 A.2d 1245,
appeal denied, 532 Pa. 663, 616 A.2d 984 (1992).
Under the corpus delicti doctrine, the conviction of a
36 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa.
C.S. §~929(a)(1) .....
37 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa.
C.S. §3929(c).
38 Act of December 6, 1972, P.L. 1482, 1, 18 Pa. C.S.
~3925(a).
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94-0562 CRIMINAL TERM
defendant may not rest solely upon an extrajudicial confession.39
"The corpus delicti, meaning the body or substance of the crime
charged ... must be established by evidence independent of any
extrajudicial confession or admission of the defendant .... " 1
Wharton's Criminal Law ~28, at 172-75 (15th ed. 1993). The corpus
delicti, however, may be proven by circumstantial evidence, and
need not be proven beyond a reasonable doubt.4° In. the case of
theft by receiving stolen property, the stolen nature of the
property involved is essential to the existence of a corpus
delicti. Commonwealth v. Elder, 305 Pa. Super. 49, 451 A.2d 236
(1982).
Circumstantial evidence, however, may be utilized by the
Commonwealth to show that property has been the subject of a theft.
As Judge Elliott of the Superior Court has stated, "it bears
emphasizing that circumstantial evidence may be utilized to
establish [the element of theft]. The focus must be on proving the
status of the goods - not on attempting to identify the 'victim' of
the crime or the circumstances of the theft .... " Commonwealth v.
Stafford, 424 Pa. Super. 591, 601, 623 A.2d 838, 843 (1993)
(concurring and dissenting). For example,
in situations where the defendant is in
possession of goods or automobile parts with
obliterated identification numbers, such as a
warehouse storage area or "chop shop," the
39 Commonwealth v. Forman, 404 Pa. Super. 376, 590 A.2d 1282
(1991).
4o Commonwealth v. Forman, 404 Pa. Super. 376, 590 A.2d 1282
(1991).
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identity of the true owner, and therefore
evidence of a theft, may never been capable of
proof. However, under such circumstances, the
introduction of the goods, their quantity and
character, the obliterated identification
numbers, and the circumstances under which the
property was discovered should all be
admissible on the question of whether the
goods were stolen.
Id.
APPLICATION OF LAW TO FACTS
In the present case, the retail theft at Hills Department
Store was observed by a witness. Without more, this observation
was sufficient to establish a corpus delicti, and in combination
with the remainder of the Commonwealth's case, including
Defendant's confession, the Commonwealth's evidence was more than
sufficient to prove Defendant's guilt of' that offense beyond a
reasonable doubt.
With respect to receiving stolen property, the evidence that
the various items of merchandise found by police were in fact
stolen included (a) the physical condition of the new, unfolded and
unpackaged clothing, all of the same type and in voluminous
amounts, (b) the absence of any accompanying indicia of purchase
from the stores selling the merChandise, (c) the concealment of
numerous items in various places, including Defendant's person, (d)
the flight of Defendant and his coconspirators upon confrontation,
and (e) the similarity of the merchandise discovered in their
possession to that which they were engaged in stealing from Hills.
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Although the evidence was circumstantial, the inference that all of
the merchandise found by police was stolen was not unreasonable.
As Thoreau observed, "[s]ome circumstantial evidence is very
strong, as when you find a trout in the milk.''4~
Such evidence was sufficient to support the existence of a
corpus delicti as to receiving stolen property, and in combination
with Defendant's admission to police, inter alia, the
Commonwealth's evidence was also sufficient to prove Defendant's
guilt of that offense beyond a reasonable doubt.
Travis N. Gery, Esq.
Assistant District Attorney
Ellen K. Barry, Esq.
First Assistant Public Defender
:rc
4~ Journal, November 11, 1854; see Commonwealth v. Ilgenfritz,
466 Pa. 345, 351, 353 A.2d 387, 390 (1976).
The Defendant's contention that the evidence did not admit of
a determination as to which of the victims' stores some of the
merchandise came from does not seem to .the Court to be dispositive
of this case. Certainly, the Hills merchandise could reasonably be
assumed to have come from the Cumberland County store, where the
retail theft was observed as it was occurring. For purposes of the
receiving charge, the possession of all of the property in
Cumberland County would seem sufficient for jurisdictional
purposes, regardless of the points of origin of the merchandise.
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