Com. v. Kroemmelbein, H. ( 2020 )

J-S04042-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HEIDI LOUISA KROEMMELBEIN :
:
Appellant : No. 766 EDA 2019
Appeal from the Judgment of Sentence Entered October 31, 2018
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0002177-2018
BEFORE: BENDER, P.J.E., STABILE, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED MARCH 11, 2020
Heidi Louisa Kroemmelbein (Appellant) appeals from the judgment of
sentence imposed after a jury convicted her of retail theft and criminal
conspiracy.1 We affirm.
The trial court summarized the facts presented at trial as follows:
On February 25, 2018, [Appellant]; her cousin, Danielle
Kroemmelbein; and three children went shopping at the Wal-Mart
on Mill Creek Road in Lower Macungie Township, Lehigh County,
Pennsylvania. After placing multiple items from various
departments in their cart, they proceeded to a self-checkout
register. The women scanned and paid for 61 items, and
attempted to leave without paying for 49 items valued at $240.61.
The women were stopped while exiting by a Wal-Mart loss
prevention officer.
Video security footage at the self-checkout captured the
women’s activities. On the video [Appellant] is seen taking items
from the cart and scanning them. She places some items in bags,
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1 18 Pa.C.S.A. §§ 3929, 903.
J-S04042-20
some items back in the cart, and hands other items to Danielle.
On at least two occasions, [Appellant] is seen handing empty
plastic bags to Danielle. Danielle is seen moving multiple items
around in the cart, and placing her coat on top of the cart over
unscanned items. After several bags were full, Danielle is seen
taking the bags and placing them on top of unscanned items in
the cart.
Trial Court Opinion, 2/13/19, at 1-2.
The Commonwealth charged Appellant with the above crimes, and a jury
convicted Appellant following trial on October 31, 2018. That same day, the
trial court sentenced Appellant to 18 months of probation. Appellant filed
post-sentence motions. The trial court held a hearing on December 5, 2018,
and on February 13, 2019 entered an order denying the motions. Appellant
filed this timely appeal on March 12, 2019. Both the trial court and Appellant
have complied with Pennsylvania Rule of Appellate Procedure 1925.2
Appellant raises a single issue for our review:
WHETHER THE EVIDENCE WAS SUFFICIENT TO SUSTAIN
[APPELLANT’S] CONVICTIONS FOR RETAIL THEFT AND
CONSPIRACY - RETAIL THEFT.
Appellant’s Brief at 7.
We review Appellant’s claim mindful of the following:
Because a determination of evidentiary sufficiency presents a
question of law, our standard of review is de novo and our scope
of review is plenary. In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted at trial and all
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2On May 13, 2019, the trial court entered an order stating that its “opinion
dated February 13, 2019, addresses the issues raised by [Appellant] in [her]
Concise Statement of Matters Complained of On Appeal” and referencing that
opinion in satisfaction of “the requirements of Pa.R.A.P. 1925(a).” Order,
5/13/19.
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reasonable inferences drawn therefrom, viewed in the light most
favorable to the Commonwealth as verdict winner, were sufficient
to prove every element of the offense beyond a reasonable doubt.
The facts and circumstances established by the Commonwealth
need not preclude every possibility of innocence. It is within the
province of the fact-finder to determine the weight to be accorded
to each witness’s testimony and to believe all, part, or none of the
evidence. The Commonwealth may sustain its burden of proving
every element of the crime by means of wholly circumstantial
evidence. Moreover, as an appellate court, we may not re-weigh
the evidence and substitute our judgment for that of the fact-
finder.
Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (brackets
and citation omitted). When reviewing a sufficiency claim, “the entire record
must be evaluated and all evidence actually received must be considered.”
Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super. 2018) (citation
omitted); see also Commonwealth v. Lovette, 450 A.2d 975 (Pa. 1982)
(explaining that a sufficiency claim will not be assessed on a diminished
record, but rather on the evidence actually presented to the finder of fact).
Instantly, Appellant argues that the evidence was insufficient to prove
“she was actively involved as a partner in the criminal action.” Appellant’s
Brief at 9. The essence of Appellant’s argument is that she did not intend to
steal the items, and her cousin, Danielle, acted alone. See id. at 10-15.
Appellant asserts:
the primary circumstantial proof of the hiding of items or
attempting to obscure them from view were all done by Danielle.
The question must therefore be whether or not [Appellant’s]
presence with Danielle is supported by other evidence to show
that she was part of the attempt to take those 49 items out of the
store without paying for them or that she even knew that unpaid
items had not been handed to her from the cart by Danielle. There
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is her presence there with Danielle and her involvement in
selecting the items but that was insufficient to show that she
agreed to or was part of the plan to take items without paying for
them.
Id. at 15.
A person is guilty of retail theft if he “takes possession of ... any
merchandise ... offered for sale by any store ... 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(a)(1) (emphasis
added). The Crimes Code provides that “[a] person is guilty of conspiracy
with another person or persons to commit a crime if with the intent of
promoting or facilitating its commission he: (1) agrees with such other person
or persons that they or one or more of them will engage in conduct which
constitutes such crime ...; or (2) agrees to aid such other person or persons
in the planning or commission of such crime ....” 18 Pa.C.S.A. § 903(a)
(emphasis added). A conspiracy is almost always proved through
circumstantial evidence of the conduct of the parties and the surrounding
circumstances. See Commonwealth v. Lambert, 795 A.2d 1010, 1016 (Pa.
Super. 2002).
Appellant argues that the Commonwealth failed to prove the intent
element of the above crimes beyond a reasonable doubt. However, our review
of the record, particularly the notes of testimony, comports with the trial
court’s summary of the evidence reproduced above. The court reasoned:
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[T]he video clearly shows [Appellant] turned toward the cart on
numerous occasions and [she] was interacting with Danielle the
entire time. [Appellant] was the only one scanning items; some
items she placed in bags and some items she handed to Danielle;
and she handed empty bags to Danielle. Based on the conduct of
[Appellant], there was certainly enough circumstantial evidence
to show that [Appellant] intended to deprive Wal-Mart of
merchandise and the she conspired with Danielle to do so.
Trial Court Opinion, 2/13/19, at 3.
Upon review, we agree that the evidence was sufficient to support the
jury’s verdicts. Prior to trial, the court instructed the jury, among other things,
“to keep an open mind” and “use your understanding of human nature and
common sense.” N.T., 10/31/18, at 12. Thereafter, the Commonwealth
presented the testimony of Walmart’s loss prevention professional, Keirrie
Fichter. Ms. Fichter testified that she first noticed Appellant and Danielle
because “they weren’t really paying attention to prices,” and “were just going
along, pulling stuff off the shelves . . . and they also had a baby blanket with
them and the baby blanket was like draped over the top of the cart, which
then I continued to follow them and then they . . . used the blanket to cover
up some merchandise.” Id. at 28. Ms. Fichter testified that Appellant and
Danielle “switched off and on within the store of who was pushing and who
wasn’t pushing.” Id. at 30. She also stated, “[b]oth of them were selecting
merchandise and putting it in the same shopping cart” and both “were just
throwing it in the cart.” Id. at 32-33, 59. Ms. Fichter followed “right behind”
the women to the self-checkout, where Appellant “continue[d] to scan
merchandise” and was “the only one scanning the items.” Id. at 34-35. After
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Ms. Fichter observed that the women did not pay for all of the items, and
proceeded to exit the store, she approached them and identified herself as a
loss prevention employee. Id. at 36. Ms. Fichter testified that the women
checking out was documented on video, which — along with the receipt
showing that the women only paid for 51 of 110 items in their cart — the
Commonwealth introduced into evidence. Id. at 41; Exhibits C-1, C-3.3
Notably, Appellant’s counsel objected during the Commonwealth’s questioning
of Ms. Fichter, stating: “Objection. She is asking what she sees on the video.
That is the jury’s province.” Id. at 49-50 (emphasis added). In addition,
Appellant did not present any defense witnesses.
On this record, we find no merit to Appellant’s claim that the evidence
was insufficient to show her intent to deprive Walmart of merchandise, or her
agreement with Danielle to do so. As Appellant’s counsel recognized during
trial, “[i]t is within the province of the fact-finder to determine the weight to
be accorded to each witness’s testimony and to believe all, part, or none of
the evidence.” Palmer, 192 A.3d at 89.
Judgment of sentence affirmed.
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3Exhibit C-2 is Walmart’s documentation of the unscanned items and their
value of $240.64. N.T., 10/31/18, at 44.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/20
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