November 6, 1981
COMMONWEALTH OF PENNSYLVANIA
CARL S. MOORE, APPELLANT.
No. 573 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Montgomery County, No. 293-79
Before Hester, DiSALLE and Popovich, JJ. DiSALLE, J. files a Memorandum Dissenting Opinion.
The lower court's Opinion comprehensively states the case; therefore, the judgment of sentence will be affirmed with the Opinion of Richard S. Lowe, P.J. to be used for allocature purposes.
DiSALLE, J. files a Memorandum Dissenting Opinion.
IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA VS. CARL S. MOORE
LOWE, P.J., April 29, 1980
Defendant has appealed to The Superior Court of Pennsylvania from a judgment of sentence imposed by this Court on January 24, 1980 following the defendant's conviction of retail theft.
On December 23, 1978 defendant Carl S. Moore entered the Sears, Roebuck and Company store in Abington Township, this county, and took into his possession a chain saw with a value in excess of $209.99. The defendant removed the merchandise from the department in which it was displayed without making provision for its purchase with the customer service desk located in that department. Several store employees subsequently observed the defendant walking through other departments of the store in possession of the unpurchased chain saw. Store Security Officer Stanley Kadelski, who is also a Montgomery County Detective, observed the defendant making his way through the store, in the process passing six (6) cash registers or customer check-out desks, without attempting to purchase the chain saw. The defendant then entered a main aisle of the store which led to an exit, furtively glanced around the store several times, and walked toward the exit. As the defendant was leaving the premises with the unpurchased merchandise he was detained by Officer Kadelski who subsequently contacted the Abington Township Police Department for assistance.
On December 23, 1978 the defendant was arrested and a Criminal Complaint was filed charging him with retail theft. A Preliminary Hearing convened January 12, 1979 before District Justice M. William Peterson, at which time it was determined the Commonwealth had established a prima facie case against the defendant. Subsequent to the filing of an Information, the defendant executed a waiver of formal arraignment and entered a plea of not guilty to the charge. Trial proceeded before the undersigned, without a jury, on November 5, 1979.*fn1 Following presentation of the Commonwealth's case-in-chief, defendant demurred to the evidence, which Motion was denied, whereupon the defendant proceeded to put in a case in defense. At the conclusion of the testimony, the defendant was found guilty of retail theft (the value of the merchandise being in excess of $150.00), a misdemeanor of the first degree.*fn2
On November 15, 1979 defendant filed a Motion for New Trial and in Arrest of Judgment contending, inter alia, that the denial of his demurrer at the conclusion of the Commonwealth's case-in-chief constituted error and that there was insufficient evidence to support a finding of defendant's guilt beyond a reasonable doubt. Following argument and upon consideration of the briefs of counsel, the aforesaid Motion was dismissed and the prayer for relief denied by Order of this Court dated January 3, 1980. On January 24, 1980 defendant appeared in Open Court with counsel and was placed on probation for a period of eighteen (18) months in the custody of the County Probation Department.Defendant now appeals to The Superior Court of Pennsylvania from the judgment of sentence urging in support thereof the two alleged points of error raised by the Motion for New Trial and in Arrest of Judgment.
Initially, defendant contends the Court erred in not sustaining his demurrer at the conclusion of the Commonwealth's case-in-chief. This issue has not been properly preserved for appellate review. It is well settled law that in the event a demurrer is denied by the trial court and the defendant does not rest following the adverse ruling, but elects to offer evidence in defense, the correctness of the court's ruling on the demurrer is no longer an available issue for appellate review. Commonwealth vs. Sourbeer, Pa. , 410 A.2d 768 (1980), Commonwealth vs. Pritchard, Pa. Superior Ct. , 411 A.2d 810 (1979), Commonwealth vs. Smith, Pa. Superior Ct. , 408 A.2d 1155 (1979), Commonwealth vs. Hurd, Pa. Superior Ct. , 407 A.2d 418 (1979). Because the defendant elected to testify and put in a case in defense, his allegation of error concerning this Court's denial of his demurrer is deemed to have been waived and the issue is moot.*fn3
Defendant also maintains there was insufficient evidence to support a finding of defendant's guilt beyond a reasonable doubt. It is fundamental that evaluating the credibility of the witnesses, weighing the evidence, and drawing a verdict from the evidence presented are functions of the factfinder. Commonwealth vs. Tate, 485 Pa. 180 (1979), Commonwealth vs. Zimmerman, Pa. Superior Ct. , 399 A.2d 1064 (1979). The finding of a judge sitting without a jury should be accorded the same weight as that of a jury. Commonwealth vs. Truss, 230 Pa. Superior Ct. 262 (1974), Commonwealth vs. Dawkins, 227 Pa. Superior Ct. 558 (1974). The determination of whether to grant a new trial on the ground that the evidence is insufficient to support a criminal conviction is committed to the sound discretion of the trial court. Commonwealth vs. Hinchcliffe, 479 Pa. 551 (1978), cert. denied 439 U.S. 989 (1978); Commonwealth vs. Zapata, 447 Pa. 332 (1972); Commonwealth vs. Reidenbaugh, Pa. Superior Ct. , 404 A.2d 697 (1978).
A two-step process must be employed in determining whether evidence is sufficient to support a criminal conviction. First, the evidence must be evaluated in a light most favorable to the prevailing party, accepting as true all evidence upon which the fact finder could have properly based its verdict. Commonwealth vs. Turner, Pa. Superior Ct. , 410 A.2d 895 (1979), Commonwealth vs. Laurin, Pa. Superior Ct. , 409 A.2d 1367 (1979), Commonwealth vs. Middleton, Pa. Superior Ct. , 409 A.2d 41 (1979). Secondly, it must be determined whether that evidence, with all reasonable inferences arising therefrom, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth vs. Sample, Pa. Superior Ct. , 410 A.2d 889 (1979), Commonwealth vs. Diamond, Pa. Superior Ct. , 408 A.2d 488 (1979), Commonwealth vs. Humphreys, Pa. Superior Ct. , 406 A.2d 1060 (1979).
It is axiomatic that the Commonwealth must prove every essential element of a crime beyond a reasonable doubt, Commonwealth vs. Alston, Pa. Superior Ct. , 410 A.2d 849 (1979), and defendant's guilt must be proven, not conjectured. Commonwealth vs. Turner, supra; Commonwealth vs. McKee, Pa. Superior Ct. , 410 A.2d 847 (1979); Commonwealth vs. Hurd, Pa. Superior Ct. , 407 A.2d 418 (1979). The Commonwealth is not obliged to establish guilt to a mathematical certainty or beyond all possible doubt. Commonwealth vs. Tinsley, 465 Pa. 329 (1976), Commonwealth vs. Hunter, 234 Pa. Superior Ct. 463 (1975), Commonwealth vs. Cichy, 227 Pa. Superior Ct. 480 (1974). Circumstantial evidence alone may be sufficient to prove guilt beyond a reasonable doubt. Commonwealth vs. Ciamaszewski, 447 Pa. 141 (1972); Commonwealth vs. McKee, supra; Commonwealth vs. Roman, Pa. Superior Ct. , 411 A.2d 805 (1979); Commonwealth vs. Kennerty, Pa. Superior Ct. , 410 A.2d 319 (1979). Particularly, the element of criminal intent need not be established by evidence to a certainty or beyond all possible doubt, but may be proven by circumstantial evidence which establishes that element beyond a reasonable doubt. Commonwealth vs. Phillips, Pa. Superior Ct. , 410 A.2d 832 (1979). In re Interest of DelSignore, 249 Pa. Superior Ct. 149 (1977).
To obtain a conviction for retail theft the Commonwealth must establish beyond a reasonable doubt that the accused took possession of or carried away merchandise offered for sale by a store or retail mercantile establishment with the intention of depriving the merchant of the possession of that merchandise without paying the retail value thereof. The Act of December 6, 1972, P.L. 1482, No. 334, § 1, as amended, December 2, 1976, P.L. 1230, No. 272, § 1, 18 Pa. C.S.A. 3929. Guided by the foregoing principles, it is clear that the Commonwealth has established each and every element of the crime beyond a reasonable doubt. The Commonwealth's uncontradicted evidence established that the defendant took the chain saw into his possession and removed it from the store where it had been offered for sale without making payment therefor.
Defendant contends that the evidence presented by the Commonwealth was insufficient to establish the element of criminal intent beyond a reasonable doubt. In support of this argument defendant relies on a series of cases decided by The Superior Court of Pennsylvania Commonwealth vs. Ruger, 245 Pa. Superior Ct. 576 (1977), Commonwealth vs. Bonn, 244 Pa. Superior Ct. 315 (1976), Commonwealth vs. Shapiro, 223 Pa. Superior Ct. 15 (1972), which dealt with the intent that must be established to support a conviction of retail theft. The precedents cited by defendant, while relevant, are not determinative of this controversy. Specifically, in Commonwealth vs. Born, supra, and Commonwealth vs. Shapiro, supra, The Superior Court dealt with the applicability of a statutory presumption or standardized inference to prove the element of intent. The Court held that the evidence established at trial, in those prosecutions, relative to the concealment of merchandise, was insufficient to raise the statutory presumption that the defendants intended to deprive the stores of the merchandise without making payment therefor. Absent any other evidence of criminal intent the Court held the convictions could not stand. Instantly, the Commonwealth has not relied on evidence of concealment to raise a presumption of defendant's intent to deprive the store of its merchandise without making payment therefor. Furthermore, the merchandise which was the subject of the thefts in each of the cases cited by the defendant, unlike the chain saw in the instant matter, was of such a size that the failure to make payment therefor could be explained as mere oversight. The chain saw was of such dimension as to prevent its concealment upon the defendant's person. The defendant was necessarily aware of his possession of the merchandise because of its bulk and was further reminded of its presence when he stopped to place it on the floor while examining other goods and then retrieving it from its resting place. While walking through the store, defendant passed six (6) cash registers or customer check-out desks without attempting to purchase the chain saw. Finally, as the defendant entered a main aisle of the store which led to the exit, he made several furtive gestures, looking from side to side around the store as if to ensure that he had not been observed, and proceeded toward the exit.
Patently, the evidence and reasonable inferences arising therefrom were sufficient to establish the element of criminal intent beyond a reasonable doubt and to sustain defendant's conviction of retail theft. The defendant's contrary assertions are without merit and the fact finder's decision should not be disturbed as there is no "fundamental error in the verdict which is so shocking to the sense of justice" as to require reversal. Commonwealth vs. Ashford, 277 Pa. Superior Ct. 351, 354 (1974). See also Commonwealth vs. Hinchcliffe, supra, and Commonwealth vs. Smith, 484 Pa. 71 (1979).
BY THE COURT: Richard S. Lowe, P.J.
The majority opinion correctly states that "the Commonwealth must prove every essential element of a crime beyond a reasonable doubt,... and [that a] defendant's guilt must be proven, not conjectured." Slip op. at 6. I dissent because I believe that the Commonwealth has failed to prove every essential element of the crime in this case.
A person is guilty of 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 merchantile establishment 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.A. § 3929 (Supp. 1981-82) (Emphasis added).
Here, the record clearly shows that appellant was apprehended, not as he was about to leave the premises, but as he was in the process of going through a set of doors leading to a vestibule where pay phones are available for public use. It is appellant's testimony that he was on his way to use the pay phones when he was apprehended. Appellant explained that he intended to call a woman who had asked him to purchase a lock for her, and that he wanted to make certain what type of lock she wanted. The security guard's testimony verified that appellant had stopped and examined locks prior to walking toward the pay phones. The guard also testified that when he grabbed appellant, appellant's response was "Wait a minute. I am going out here to use the telephone."
In Commonwealth v. Ruger, 245 Pa. Super. 576, 369 A.2d 777 (1977), our court reversed a retail theft conviction where the accused was apprehended after he had passed through the first of two doors which led to the parking lot. The accused explained that he had placed the allegedly stolen item, a child's cap, on his head as a joke without any intention to purchase or remove it from the store. He stated that he was looking for his companions when he was apprehended. Our court held that "the evidence was clearly insufficient to support a verdict of guilty." Id. at , 369 A.2d at 778. Accord Commonwealth v. Shapiro, 233 Pa. Super. 15, 297 A.2d 161 (1972) (the accused's retail theft conviction was reversed because the Commonwealth failed to prove the requisite intent even though the accused had overtly carried a box of bushings from the store).
Here, appellant was still on the store's premises, about to enter the vestibule between the inner and outer doors of the store's entrance way, when he was apprehended. It is pure conjecture that he intended to leave the store at that time, or that he was "carrying away" the chainsaw. None of appellant's other activities support a finding of intent to deprive the store of the merchandise without paying for it.*fn1 See Commonwealth v. Bonn, 244 Pa. Super. 315, 368 A.2d 738 (1976). The Commonwealth, therefore, failed to prove an essential element of the offense of retail theft, i.e., intent, beyond a reasonable doubt.
I would therefore reverse.