Appeal From the Sentence of the Court of Common Pleas-- Criminal of Northampton County at No. 111 of 1976. No. 1315 October Term, 1976.
Frank W. Mulderig, Pittston, for appellant.
Richard J. Shiroff, Asst. Dist. Atty., and John E. Gallagher, Dist. Atty., Easton, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 244 Pa. Super. Page 316]
This is an appeal from a conviction for retail theft under the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 C.P.S.A. § 3929.
Appellant, Dorothy D. Bonn, was completing some Christmas shopping in the K-Mart Store, Bethlehem, Pennsylvania, when Frank Connors, a K-Mart security guard, saw her place a packaged bra in her purse. She then placed the open purse in the seat part of the shopping cart, which contained other merchandise she had selected, and continued her shopping. A short time later Mr. Connors approached Mrs. Bonn and informed her that he had seen her place the bra in her purse. She had not yet gone through the check-out line or attempted to leave the store. Because Mrs. Bonn's purse was not closed, the package with the $1.97 price tag attached was visible to Mr. Connors when he stopped Mrs. Bonn. At Mr. Connors' request, she accompanied him to the security office where she denied any intent to take the bra without paying for it.
At the hearing appellant testified that she was preoccupied and upset while she was shopping. Her mind was on her mother, dying of cancer in a local hospital, and
[ 244 Pa. Super. Page 317]
she did not realize what she was doing when she put the bra in her purse. She testified she had no intention of taking the bra but had taken her wallet out of her purse to check a shopping list and her money. The package with the bra was in her hand, and without realizing what she was doing, she put the package in her purse when she put the wallet back.
Appellant claims the Commonwealth failed to prove beyond a reasonable doubt an essential element of the offense of retail theft. She asserts a lack of sufficient proof to establish her intent to deprive the store of its property without payment. The test of the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth, the trier of fact could reasonably have found all the elements of the crime had been established beyond a reasonable doubt. Commonwealth v. Smallwood, 465 Pa. 392, 350 A.2d 822 (1976); Commonwealth v. Robson, 461 Pa. 615, 337 A.2d 573 (1975); Commonwealth v. Moore, 226 Pa. Super. 32, 311 A.2d 704 (1973). The Commonwealth may sustain this burden by means of wholly circumstantial evidence, though it cannot rest solely on mere suspicion or conjecture. Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976); Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); Commonwealth v. Stevens, 237 Pa. Super. 457, 352 A.2d 509 (1976).
The only circumstantial evidence in the instant case was the observation of the placement of the bra in the purse and the finding of it in the open purse. To prove beyond a reasonable doubt her intent to shoplift the property, the Commonwealth relied on the statutory presumption set out in 18 C.P.S.A. § 3929(c) which provides:
"Any person intentionally concealing unpurchased property of any store or other mercantile establishment, either on the premises or outside the premises of such ...