Com. v. Caliente, C. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
CHERYL A. CALIENTE :
:
Appellant : No. 140 MDA 2020
Appeal from the Judgment of Sentence Entered December 3, 2019
In the Court of Common Pleas of Bradford County Criminal Division at
No: CP-08-CR-0000378-2019
BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED FEBRUARY 4, 2022
Appellant, Cheryl A. Caliente, appeals from the aggregate judgment of
sentence of 39 months’ to 92 months’ incarceration, which was imposed after
her jury trial conviction for two counts of retail theft, graded as a third-degree
felony, and two counts of theft by receiving stolen property (theft-RSP).1 We
vacate the judgment of sentence and remand for resentencing.
The facts underlying this appeal are as follows.
Walmart Asset Protection employee, Ms. [Tonya] Steele,
testified that on February 20, 20[19] she observed Appellant
acting suspicious “doing the shoplifter lean” where her arms
were down in [the] top basket of [her] cart “playing” with
merchandise; Ms. Steele continued to observe Appellant
until she checked out at the self-check-out (where an
individual scans price tags themselves) and left the store;
she then retrieved Appellant’s receipt and reviewed the
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3929(a)(2) and 3925(a), respectively.
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overhead video of Appellant checking out to determine if
items scanned matched; Ms. Steele determined that
Appellant used a $1.00 merchandise tag hidden in her hand
to scan while passing more expensive items over the
register to a bag; at one point in time the tag fell out of
Appellant’s hand and Appellant picked it up; Appellant also
held a pad with a price tag of $0.94 on the bottom of 3
$25.00 candles; and did not scan the actual items’ price
tags; on February 21, while investigating the February 20,
2019 incident, she noticed on the live feed from self-check-
out, the Appellant again checking out; Appellant “skipped
scanned” meaning she just did not scan something and put
it in her bag; and again used different tags for other items.
Trial Court Opinion (TCO), at 1-2 (citations to notes of testimony omitted).
Appellant was arrested and charged with two counts of retail theft and
two counts of theft-RSP. Information, 6/11/19. Appellant proceeded to a jury
trial on September 19, 2019. Appellant absconded from the courtroom after
the evidence was presented to the jury but before the jury returned with a
verdict. The jury found Appellant guilty in absentia of two counts of retail
theft and two counts of theft-RSP.
On December 3, 2019, the Appellant appeared for sentencing and the
trial court sentenced Appellant to consecutive sentences of 14 months’ to 28
months’ imprisonment on each count of retail theft. On the first count of theft-
RSP, a misdemeanor of the second degree, the trial court sentenced Appellant
to 6 months’ to 24 months’ imprisonment, consecutive to the prior charge.
On the second count of theft-RSP, a misdemeanor of the third degree, the trial
court sentenced Appellant to 5 months’ to 12 months’ imprisonment, to run
consecutive to the prior charge. Appellant received an aggregate sentence of
39 months’ to 92 months’ incarceration.
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Appellant filed a timely post-sentence motion on December 10, 2019,
challenging the weight of the evidence, the sufficiency of the evidence
presented to prove that Appellant altered price tags, and discretionary aspects
of her sentence. Post-Sentence Motion, 12/10/19. The trial court denied
Appellant’s post-sentence motion on December 17, 2019. On January 15,
2020, Appellant filed a timely notice of appeal.
On April 15, 2021, this Court filed a Judgment Order finding appellate
counsel per se ineffective for failure to file a Pa.R.A.P. 1925(b) statement
when one was ordered by the trial court. Order, 4/15/21. The appeal was
remanded to the trial court to appoint new counsel and to permit newly
appointed counsel time to file a Pa.R.A.P. 1925(b) statement. Id. Both the
trial court and counsel have complied with Pa.R.A.P. 1925. The trial court filed
a supplemental 1925(a) opinion on July 7, 2021.2
Appellant presents the following issues for our review:
1. Was the evidence presented at trial insufficient to sustain
the convictions for Retail Theft?
2. Was Appellant improperly convicted of both Retail Theft
under 18 Pa.C.S. Section 3929(a)(2) and Receiving
Stolen Property under 18 Pa.C.S. Section 3925 for the
same transactions?
3. Was the imposition of consecutive sentences in the
aggravated range, excessive for conduct that occurred
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2 On August 3, 2021, this Court entered an Order setting a new briefing
schedule for the parties in light of the appointment of new counsel and the
filing of the Rule 1925(b) statement. Both parties complied and submitted
new briefs to this Court as of December 19, 2021.
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within a short period of time and involved a small amount
of financial loss?
4. Was the imposition of non-mandatory fines improper
without a finding by the Court that the Appellant had the
ability to pay?
Appellant’s Brief, at 4 (reordered for ease of discussion).
Appellant first argues the evidence was insufficient to sustain the
convictions for retail theft. Appellant’s Brief, at 4. “Whether sufficient
evidence exists to support the verdict is a question of law; our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Hutchison, 164 A.3d 494, 497 (Pa. Super. 2017) (citation omitted).
We must determine,
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 the fact-
finder. . . . 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. Fortson, 165 A.3d 10, 14–15 (Pa. Super. 2017) (citation
and internal brackets in original). Additionally, “[t]he evidence need not
preclude every possibility of innocence and the fact-finder is free to believe
all, part, or none of the evidence presented.” Hutchison, 164 A.3d at 497.
Appellant argues that the Commonwealth should have charged her with
“under-ringing” the merchandise. Appellant’s Brief, at 17. Appellant argues
“the only items which had allegedly altered price tags were the candles . . .
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[and] there was no evidence presented that Appellant had switched the tags,
that she was aware that the incorrect price tag was on the candles, or that
she intentionally purchased the candles knowing that the price tags had
purportedly been switched.” Id., at 17-18. Appellant challenges the
sufficiency of the evidence presented that she “committed the actus reus
required for retail theft under [Section] (a)(2).” Id., at 17.
A person is guilty of a retail theft if [s]he:
alters, transfers or removes any label, price tag marking,
indicia of value or any other markings which aid in
determining value affixed to any merchandise displayed,
held, stored or offered for sale in a store or other retail
mercantile establishment and attempts to purchase such
merchandise personally or in consort with another at less
than the full retail value with the intention of depriving the
merchant of the full retail value of such merchandise[.]
18 Pa.C.S. § 3929(a)(2).
At trial, Ms. Steele, an asset protection employee of Walmart, testified
that she observed Appellant in Walmart on February 20, 2019. N.T. 9/19/19,
at 17-18. Ms. Steele observed Appellant go to “register 48” of the “self-check-
out registers.” Id., at 18. Ms. Steele testified, “I could see [Appellant]
scanning the items . . . and left the store.” Id., at 18-19. Ms. Steele stated
she “went to her office and brought up . . . the receipt and was verifying[,]
using the video[,] what was scanned and wasn’t scanned.” Id., at 19. Ms.
Steele identified copies of the receipts she obtained from February 20, 2019.
Id. The Commonwealth played a video of Appellant scanning items at the
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self-check-out on February 20, 2019. Id., at 21. Ms. Steele narrated the
video as follows:
Okay, [Appellant] scans the first item, which was shirt, it scans at
a dollar, puts that in the bag. Put’s a bunch over to the side, the
second thing is supposed to be a pair of jeans for a dollar,
obviously that’s a grey sweatshirt, men’s sweatshirt. Next item
on the receipt is another pair of jeans, jeans for one dollar. This
is a, obviously a long sleeve black shirt. By watching the video,
I can see where she has the - - the tag in her hand, she
keeps her fingers tucked under her right hand. That’s a pair
of socks, er, a package of socks that are on clearance for a dollar,
and that was the next thing on the list that she scanned. Next
item comes up a touch glove, which is a mitten that you can use
your phones and so forth with, those were on clearance for a
dollar. Here she puts an actual pair of gloves in place of that. She
tries to scan the pair of underwear there and you can see the tag
popped out of there. . . . [T]here was a tag in her hand and
she was trying to swipe the briefs and skid them across the
register right there separate from – that was the tag for
the touch glove.
Id., at 22-23 (emphasis added).
Ms. Steele continued, “[t]hese next two items she scans are large
candles valued around $25.00, she has a pad on the bottom of it for $0.94
three-ounce candles that she puts in, that she scans but she puts the $25.00
candles into the bag.” Id., at 25. Ms. Steele testified, “[t]he third transaction
she has two packages, these are contractor garbage bags valued at $4.96 . .
. [s]he scans another one of the touch glove tags for a dollar each.” Ms. Steele
points out, “[a]t one point here is where she flips the package over, you can
see the label in her – in her right hand holding against the package . . . [t]he
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ticket in her right hand, right there[.] . . . This one they end up paying $2.00
for cash[.]” Id., at 25-26.
The evidence presented at trial is sufficient to sustain Appellant’s
conviction for retail theft occurring on February 20, 2019. The evidence
demonstrated that Appellant transferred the price tags of lower priced items
to the higher priced items when she held the lower priced tag in her hand and
scanned that tag while passing the higher priced item through the scan
machine into her bag. The transfer of the price tags was complete, however
momentarily, when Appellant covertly scanned the lower priced tag held in
her hand in place of the tag of the higher priced item. Additionally, the
evidence demonstrated that Appellant altered the price tags because the items
she scanned that appeared on her receipt did not match the items she placed
in her bag. Lastly, the Commonwealth presented evidence that Appellant
scanned “large candles valued around $25.00” but had “a pad on the bottom
of it for $0.94 three-ounce candles that she . . . scans but she puts the $25.00
candles into the bag.” Id., at 24. We find that there is sufficient evidence for
the jury to find Appellant “alter[ed], transfer[ed] or remove[d] any label, price
tag, marking indicating value or other marking that aids in determining the
value affixed to the merchandise.” 18 Pa.C.S. § 3929(a)(2).
For the February 21, 2019 count of retail theft, Ms. Steele testified that
on that date, she observed Appellant on the live-feed camera. Id., at 27. Ms.
Steele testified that Appellant was at the self-check-out register number 43
and “skip scanned,” meaning “she didn’t just scan something and she put it
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in the bag.” Id., at 27. Ms. Steele identified the receipt from February 21,
2019 and it was admitted into evidence. Id., at 27-28. The Commonwealth
played video from the self-check-out register from February 21, 2019. Id.,
at 28. Ms. Steele testified that Appellant “comes up to the register, she has
two drinks . . . [s]cans the – both of those, a Dove type of body spray thing
and right there was the razors, she just skip scanned those . . . the flashlight
and the candles, the large candles, again rang up as a three-ounce
candle.” Id., at 29-30 (emphasis added). The receipt for February 21, 2019,
shows that Appellant rang up a three-ounce candle for $0.94 cents. See,
Commonwealth Exhibit, 5.
In addition to the testimony of Ms. Steele, after viewing the
Commonwealth’s Exhibit, 6, the video surveillance of the check-out, we find
the jury had sufficient evidence to find Appellant guilty of retail theft. Ms.
Steele testified that Appellant scanned a “large candle” but that the receipt
reflected “a three-ounce candle.” N.T. 9/19/19, at 29-30. The video
demonstrated that Appellant scanned a large item, as large as her hand,
where a 3-ounce candle is reflected on the receipt. Appellant also used her
entire body to scan that item, when she uses only her hands and arms to scan
the other items in her shopping cart. “Viewing all the evidence admitted at
trial in the light most favorable to the Commonwealth as verdict winner,” see
Fortson, 165 A.3d at 14, the evidence is sufficient to establish retail theft for
February 21, 2019.
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Appellant next argues that she was improperly convicted of both retail
theft and theft-RSP for the same conduct. In her brief, Appellant raises a
statutory argument and a legality of the sentence argument. We will address
her legality of the sentence argument first, as it is dispositive. Appellant
argues that the trial court erred in sentencing her on both retail theft and
theft-RSP because they merge for sentencing purposes. Appellant’s Brief, at
9-12.
A claim that crimes should have merged for sentencing
purposes raises a challenge to the legality of the sentence.
Therefore, our standard of review is de novo and our scope
of review is plenary. A challenge to the legality of the
sentence may be raised as a matter of right, is non-
waivable, and may be entertained so long as the reviewing
court has jurisdiction.
Commonwealth v. Leaner, 202 A.3d 749, 784 (Pa. Super. 2019) (internal
citation and quotation marks omitted).
Section 9765 of the Judicial Code provides that:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the other
offense. Where crimes merge for sentencing purposes, the court
may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765.
A plain language interpretation of § 9765 reveals the General
Assembly's intent to preclude the courts of this Commonwealth
from merging sentences for two offenses that are based on a
single criminal act unless all of the statutory elements of one of
the offenses are included in the statutory elements of the other.
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Commonwealth v. Calhoun, 52 A.3d 281, 284 (Pa. Super. 2012) (internal
citation omitted).
In the Criminal Information, Appellant was charged with retail theft and
theft-RSP for conduct occurring on February 20, 2019 and again charged with
retail theft and theft-RSP for conduct occurring on February 21, 2019.
Criminal Information, counts 1-4. The Commonwealth and trial court do not
contend that retail theft or theft-RSP convictions for each date were based on
different acts, therefore, the crimes of retail theft and theft-RSP did “arise
from a single criminal act” on each occasion, the act of Appellant covertly
scanning a lower priced merchandise tag in her hand while passing higher
priced merchandise into her bag. 42 Pa.C.S. § 9765. The other element
required for merger, that “all of the statutory elements of one offense are
included in the statutory elements of the other offense,” 42 Pa.C.S. § 9765,
is also satisfied here because all the elements of theft-RSP are included in
retail theft.
A person is guilty of a retail theft if [s]he:
alters, transfers or removes any label, price tag, marking, indicia
of value or any other markings which aid in determining value
affixed to any merchandise displayed, held, stored or offered for
sale in a store or other retail mercantile establishment and
attempts to purchase such merchandise personally or in consort
with another at less than the full retail value with the intention of
depriving the merchant of the full retail value of such
merchandise[.]
18 Pa.C.S. § 3929(a)(2). For theft-RSP, the Crimes Code provides:
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[a]person is guilty of theft if [s]he intentionally receives, retains,
or disposes of movable property of another knowing that it has
been stolen, or believing that it has probably been stolen, unless
the property is received, retained, or disposed with intent to
restore it to the owner.
18 Pa.C.S. § 3925(a).
Retail theft includes the elements: (1) alters, transfers, or removes any
label, price tag, marking, indicia of value or any other markings which aid in
determining value affixed to any merchandise displayed, held, stored or
offered for sale in a store or other retail mercantile establishment and (2)
attempts to purchase such merchandise personally or in consort with another
at less than the full retail value with the intention of depriving the merchant
of the full retail value of such merchandise. See Commonwealth v. Black,
380 A.2d 911, 913 (Pa. Super. 1977) (holding that criminal intent to deprive
the merchant of the full retail value of such merchandise was an element of
18 Pa.C.S. § 3929(a)(2)).3
The elements of receiving stolen property may be stated as: (1)
intentionally acquiring possession, control or title, retaining, disposing, or
lending on the security of movable property of another; (2) with knowledge
or belief that it was probably stolen; and (3) intent to deprive permanently.
See Commonwealth v. Young, 35 A.3d 54, 63 (Pa. Super. 2011).
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3 18 Pa.C.S. § 3929(a)(2) was amended to include the second element. See
18 Pa.C.S. § 3929(a)(2) (Amended 1976, Dec. 2, P.L. 1230, No. 272, § 1,
imd. effective).
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This Court recently reiterated a long standing proposition “that
convictions for theft by unlawful taking and receiving stolen property merge
for sentencing purposes.” See Commonwealth v. Crawford, 254 A.3d 769,
781-82 (Pa. Super. 2021), appeal denied, Commonwealth v. Crawford,
2021 WL 5353258 (Pa., filed Nov. 21, 2021) (table). Although decided before
the Pennsylvania legislature adopted 42 Pa.C.S. § 9765, this Court has
previously held that theft by unlawful taking and retail theft merged for
sentencing where “both convictions arose out of the single act of theft of the
diamond ring.” Commonwealth v. Boerner, 422 A.2d 583, 517 (Pa. Super.
1980). This Court determined,
[o]nce proof of the theft by unlawful taking was complete, so was
proof of the retail theft, and vice-versa. It is therefore
unquestionable that the two crimes merged for sentencing
purposes, and appellant could be sentenced for only one.
Id.This Court’s discussion of the elements of theft by unlawful taking and
theft-RSP, albeit in the context of double jeopardy, is instructive.
We begin our analysis by comparing the first element of both
statutes. Although theft by receiving stolen property does not
expressly prohibit “unlawful taking or unlawful control over
movable property,” . . . the statute's requirement that a person
intentionally acquire possession, control or title, retain, dispose or
lend on the security of moveable property of another knowing or
believing that it is stolen necessitates either theft of the
property or unlawful control over the movable property of
another. Similarly, the second element of theft by unlawful
taking, that the movable property belong to another, is necessary
to establish the second element of theft by receiving stolen
property because a person cannot have knowledge or belief that
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property was stolen unless it belonged to another. Finally, both
statutes require the intent to deprive permanently.
Young, 35 A.3d at 63 (emphasis added) (citations omitted). This Court
ultimately concluded that “when a defendant is found not guilty of receiving
stolen property or not guilty of theft by unlawful taking, a second trial on the
other charge would violate his protection against double jeopardy.” Id.Retail theft and theft-RSP both require intent to deprive the owner (of
the full value of the merchandise and possession of the item, respectively).
For retail theft, a person must have the intent to “deprive the merchant of the
full value of the merchandise” and “without intent to restore possession” for
theft-RSP. Subsumed in the “attempt to purchase the item with intent to
deprive the merchant of the full value of the merchandise” is “without the
intent to restore.” See Crawford, 254 A.3d at 781-82 (finding the intent is
identical in theft by unlawful taking and theft-RSP); Young, 35 A.3d at 63(theft by unlawful taking and theft-RSP both require the intent to deprive
permanently).
Theft-RSP requires that a person intentionally receives, retains, or
disposes of movable property of another with knowledge or belief that it was
probably stolen. 18 Pa.C.S. § 3925. “As used in this section the word
“receiving” means acquiring possession [or] control . . . of the property.” 18
Pa.C.S. § 3925(b) (emphasis in original). Retail theft requires that a person
alters, transfers, or removes any label, price tag and attempt to purchase the
merchandise at less than retail value. 18 Pa.C.S. § 3929(a)(2). See Black,
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380 A.2d at 913 (removal of a store price tag, in itself, is not unlawful without
the criminal intent to deprive the owner of the full value of the merchandise);
c.f. Commonwealth v. Rodriquez, 989 A.2d 29, 32 (Pa. Super. 2010) (retail
theft judgment of sentence vacated for insufficient evidence where appellant
did not have possession of the item with the requisite intent when Appellant
removed stereo from Walmart shelf and took it directly to returns counter to
obtain money).4 In Rodriguez, this Court found the appellant’s criminal
conduct began when he placed the item into the possession of the store clerk
to request a refund and, therefore, Appellant did not have possession of the
item with the requisite intent for retail theft. Id.Once a person attempts to purchase the altered merchandise at less
than retail value, with the requisite intent, they have completed the crime of
retail theft, likewise, they have acquired “possession” of the property of
another and clearly have knowledge it has been stolen. See Rodriquez, 989
A.2d at 32; Black, 380 A.2d at 913. “Receipt” of the item, acquiring
possession or control of the property is included in the elements of retail theft.
See Rodriquez, 989 A.2d at 32; Black, 380 A.2d at 913. We conclude that
retail theft includes all the elements of theft-RSP that the person “receive”
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4In Rodriquez, 989 A.2d at 29, appellant was convicted of retail theft, theft
by deception and theft-RSP. This Court noted, “[t]he trial court did not
sentence Appellant on the theft by deception or receiving stolen property
convictions because the trial court determined that those convictions merged
with the conviction for retail theft.” Id. However, merger was not at issue
before this Court.
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property of another, “knowing it has probably been stolen,” and has the
requisite intent to permanently deprive the owner. Because the crimes of
retail theft and theft-RSP arose from the same criminal act and the crime of
retail theft contains all the elements of theft-RSP, the crimes merge for
sentencing. 42 Pa.C.S. § 9765.
Because we find that retail theft includes all the elements of theft-RSP,
Appellant’s sentences for theft-RSP must be vacated. The trial court
sentenced Appellant to consecutive sentences for the retail theft and theft-
RSP convictions for both occurrences, thus, our disposition has disturbed the
trial court’s overall sentencing scheme. Therefore, we vacate Appellant’s
judgment of sentence in its entirety and remand for resentencing. See
Commonwealth v. Tanner, 61 A.3d 1043, 1048 (Pa. Super. 2013); “[I]f a
correction by this Court may upset the sentencing scheme envisioned by the
trial court, the better practice is to remand [for resentencing]”)
Commonwealth v. Williams, 997 A.2d 1205, 1210-1200 (Pa. Super. 2010)
(internal quotations, citations, and corrections omitted).5
Judgment of sentence vacated. Remanded for resentencing.
Jurisdiction relinquished.
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5 Based on this disposition, we will not discuss Appellant’s issue regarding the
discretionary aspects of her sentence, that the trial court erred in imposing
consecutive sentences and in imposing court costs without determining if she
had the ability to pay.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/04/2022
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