J-S75024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

RUBEN JAMES DUNKLE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 839 WDA 2019

Appeal from the Judgment of Sentence Entered April 24, 2019,

in the Court of Common Pleas of Clarion County,

Criminal Division at No(s): CP-16-CR-0000365-2018.

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 25, 2020

Ruben James Dunkle appeals from the judgment of sentence imposed 

following his conviction of three counts of retail theft.1 Additionally, Dunkle’s

court-appointed counsel, Erich R. Spessard, Esquire, has filed a petition to 

withdraw as counsel and an accompanying brief pursuant to Anders v. 

California, 386 U.S. 738, 744 (1967) (hereinafter the “Anders Brief”). We 

grant counsel’s petition, and affirm Dunkle’s judgment of sentence.

The facts underlying the instant appeal are as follows. On three 

consecutive days, October 4, 5, and 6 of 2017, Dunkle went to a Walmart 

store and selected expensive Lego products from the toy department. He then 

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. 3929(a)(4).
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modified the bar codes on the products in a manner that caused them to 

reflect a different Lego product with a much lower price. On each occasion, 

he chose to use the self-checkout, where he could scan and pay for the items 

without assistance from a store clerk. Walmart later detected an unexplained 

reduction in inventory. It conducted an internal investigation which revealed 

the underpayments by Dunkle. Police then charged Dunkle with three counts 

of retail theft.

The matter proceeded to trial on March 29, 2019. The Commonwealth 

presented the testimony of Walmart Asset Protection Officer Corey Becker, 

who detailed his internal investigation following a report from the toy 

department that several expensive Lego products were missing. Becker 

introduced surveillance video footage from the three days in October of 2017. 

The video surveillance on each day showed Dunkle follow the same routine. 

He entered the store and went to the toy aisle. He left the toy aisle with 

various expensive Lego products in his cart, then scanned and paid for these 

items at the self-checkout.2 Becker also introduced the receipts from those 

transactions, and explained that when Dunkle scanned the various expensive 

Lego items at self-checkout, they all rang up as an entirely different, and 

considerably less-expensive, Lego product namely, a Star Wars Lego Imperial 

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2 The parties stipulated that Dunkle is the individual depicted in the 

surveillance video footage. Additionally, Dunkle did not dispute the accuracy 

of the transaction receipts.
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Trooper Battle Pack. See N.T. Trial, 3/29/19, at 39-64. Becker introduced a 

photograph of that particular item, which depicted a Lego product far smaller 

than the larger and more expensive Lego products Dunkle was seen 

purchasing in the videos. Id. at 43. The Star Wars Lego Imperial Trooper 

Battle Pack was valued at $11.97 (hereinafter the “$11.97 Lego kit”).

On October 4, 2017, the video showed Dunkle purchase three items: a 

Star Wars BB-8 Lego Kit (retail price $95.00); a Star Wars Heavy Assault 

Walker Lego Kit (retail price $149.95); and a Millennial Falcon Lego Kit (retail 

price $119.00). Id. at 40-42, 51-53. This purchase should have totaled

$363.96. Id. at 54. However, Becker introduced the transaction receipt which 

showed that Dunkle purchased three $11.97 Lego kits, and paid a total of 

$35.91 with his credit card. Id. at 44-46. The difference between the retail 

value of the items Dunkle actually purchased on October 4, 2017, and the 

price he paid was $328.05. Id. at 54.

On October 5, 2017, the video showed Dunkle purchase four items: two

Millennial Falcon Lego Kits (retail price $119.00 each), and two Star Wars BB8 Lego Kits (retail price $95.00 each). Id. at 56. This purchase should have

totaled $428. Id. at 59. However, Becker introduced the transaction receipt 

which showed that Dunkle purchased four $11.97 Lego kits, and paid a total 

of $47.88 with his credit card. Id. at 55. The difference between the retail 

value of the items Dunkle actually purchased on October 5, 2017, and the 

price he paid was $380.12. Id. at 59. 
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Finally, on October 6, 2017, the video showed Dunkle purchase six 

items. Id. at 61-62. According to Becker, Dunkle paid the full retail price for 

the first three items. Id. at 61. The last three items that Dunkle purchased

were two Star Wars Heavy Assault Walker Lego Kits (retail price $149.95 

each), and one Millennial Falcon Lego Kit (retail price $119.00). Id. at 61-62. 

The retail value of these three items totaled $418.92. Id. at 63. However, 

Becker introduced the transaction receipt which showed that the last three 

items scanned were the $11.97 Lego kits. Id. at 62. Dunkle paid total of 

$35.91 for these three items. Id. at 63. The difference between the retail 

value of the last three items Dunkle actually purchased on October 6, 2017, 

and the price he paid was $383.01. Id.

Becker testified that, to his knowledge, there was no type of malfunction 

with the self-checkout system on any of the dates in question. Id. Nor was 

he aware of any problem with the bar codes placed on the more expensive 

Lego products by the manufacturer. Id. at 64. He indicated that the only 

way that the more expensive Lego items could have scanned as less expensive 

Lego items was by placing a small Lego box bar code on the large Lego boxes.

Id. 

Becker conceded on cross-examination that the surveillance videos did 

not specifically show Dunkle modifying the bar codes. Id. at 109. Nor did the

video footage show any visible modifications to the bar codes on the scanned 

items. Id. at 112. However, Becker explained on redirect that no security 
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camera was directly aimed at the toy aisle, such that you “have to look over 

part of [another] aisle to see the Lego aisle.” Id. at 188-19. 

At the conclusion of trial, a jury convicted Dunkle of three counts of 

retail theft. On April 29, 2019, the trial court sentenced him to an aggregate 

term of thirty to ninety months in prison. Dunkle filed a timely post-sentence

motion, which the trial court denied. Dunkle then filed a timely notice of 

appeal. Both Dunkle and the trial court complied with Pa.R.A.P. 1925. In this 

Court, Dunkle’s counsel has filed petition to withdraw as counsel and an 

Anders brief. Dunkle did not file a response to either the petition or the 

Anders brief.

“When presented with an Anders brief, this Court may not review the 

merits of the underlying issues without first passing on the request to 

withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010) 

(citation omitted). Pursuant to Anders, when counsel believes an appeal is 

frivolous and wishes to withdraw from representation, counsel must do the 

following:

(1) petition the court for leave to withdraw stating that after 

making a conscientious examination of the record, counsel has 

determined the appeal would be frivolous; (2) file a brief referring 

to any issues that might arguably support the appeal, but which 

does not resemble a no-merit letter; and (3) furnish a copy of the 

brief to the defendant and advise him of his right to retain new 

counsel, proceed pro se, or raise any additional points he deems 

worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006) 

(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa. 
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2009), our Supreme Court addressed the second requirement of Anders, i.e., 

the contents of an Anders brief, and required that the brief:

(1) provide a summary of the procedural history and facts, with 

citations to the record;

(2) refer to anything in the record that counsel believes 

arguably supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous; 

and

(4) state counsel’s reasons for concluding that the appeal is 

frivolous. Counsel should articulate the relevant facts of 

record, controlling case law, and/or statutes on point that 

have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “to conduct a simple review 

of the record to ascertain if there appear on its face to be arguably meritorious 

issues that counsel, intentionally or not, missed or misstated.” 

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).

Here, counsel has substantially complied with each of the requirements 

of Anders. Counsel indicates that he conscientiously examined the record 

and determined that an appeal would be frivolous. Further, the Anders brief 

substantially comports with the requirements set forth by the Supreme Court 

of Pennsylvania in Santiago. Finally, the record includes a copy of the letter 

that counsel sent to Dunkle, advising him of his right to proceed pro se or 

retain alternate counsel and file additional claims, and stating counsel’s 

intention to seek permission to withdraw. Accordingly, counsel has complied 
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with the procedural requirements for withdrawing from representation, and 

we will conduct an independent review to determine whether Dunkle’s appeal 

is wholly frivolous.

In the Anders Brief, counsel raises the following issue for our review: 

“Did sufficient evidence exist to prove the case beyond a reasonable doubt?” 

Anders Brief at 4. 

Our standard of review of sufficiency claims is as follows: 

[W]e evaluate the record in the light most favorable to the 

verdict winner giving the prosecution the benefit of all reasonable 

inferences to be drawn from the evidence. Evidence will be 

deemed sufficient to support the verdict when it establishes each 

material element of the crime charged and the commission thereof 

by the accused, beyond a reasonable doubt. Nevertheless, the 

Commonwealth need not establish guilt to a mathematical 

certainty. [T]he facts and circumstances established by the 

Commonwealth need not be absolutely incompatible with the 

defendant’s innocence. Any doubt about the defendant’s guilt is 

to be resolved by the fact finder unless the evidence is so weak 

and inconclusive that, as a matter of law, no probability of fact 

can be drawn from the combined circumstances.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations 

and quotation marks omitted). The Commonwealth may sustain its burden of 

proof by means of wholly circumstantial evidence, and the jury, which passes 

upon the weight and credibility of each witness’s testimony, is free to believe 

all, part, or none of the evidence. Commonwealth v. Jacoby, 170 A.3d 

1065, 1078 (Pa. 2017).

The crime of retail theft is established when the Commonwealth 

demonstrates that “[a] person . . . under-rings with the intention of depriving 

the merchant of the full retail value of the merchandise.” 18 Pa.C.S.A. § 
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3929(a)(4). “Under-ring” is defined as “[t]o cause the cash register or other 

sales recording device to reflect less than the full retail value of the 

merchandise.” Id. at § 3929(f). The “full retail value” is defined as “[t]he 

merchant’s stated or advertised price of the merchandise.” Id. 

In discussing Dunkle’s sufficiency challenge, counsel states that the 

claim has arguable merit because there was no direct video evidence showing 

him altering the bar codes, or showing that the bar codes on the merchandise 

he purchased had been modified. Counsel additionally points out that there 

was no evidence presented at trial regarding the accuracy or inaccuracy of the 

self-checkout scanners at the time Dunkle made his purchases. For these 

reasons. Dunkle asserts that the Commonwealth’s evidence amounted to 

speculation or conjecture as to the elements of causation and intent to underring.

Nevertheless, counsel indicates his belief that Dunkle’s insufficiency 

claim is frivolous because (1) video surveillance footage shows that the 

specific, more expensive Lego products were in Dunkle’s possession; (2) 

receipts of the three sales transactions unequivocally show that the items 

Dunkle purchased were scanned as though they were entirely different, less 

expensive items; (3) Dunkle paid a price far less than the full retail value for 

each item; and (4) the inability to see Dunkle for a length of time on the video 

footage for each incident provided enough circumstantial evidence that he 

modified the bar codes while he was out of view of the security cameras.
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Based on our review of the certified record,

3 we conclude that the 

evidence presented at trial, when viewed in the light most favorable to the 

Commonwealth, was sufficient to support the jury’s finding that all elements 

of the offense of retail theft were proven beyond a reasonable doubt. The 

Commonwealth presented the testimony of Becker, who introduced the 

surveillance video footage that showed Dunkle purchasing expensive Lego 

products on three consecutive days. The Commonwealth also presented the 

receipts for those three transactions, which established that Dunkle paid for 

entirely different, and far less expensive products. In fact, the receipts show 

that all ten of the expensive Lego products that Dunkle purchased scanned as 

the exact same cheaper product (i.e., the Star Wars Lego Imperial Trooper 

Battle Pack, valued at $11.97). 

Although there was no direct video footage showing Dunkle modifying 

the bar codes, nor any video footage showing modified bar codes on the Lego 

items, the Commonwealth was not required to produce such evidence in order 

to secure a conviction. As noted above, the Commonwealth need not establish 

Dunkle’s guilt to a mathematical certainty. Franklin, 69 A.3d at 722. 

Moreover, the facts and circumstances established by the Commonwealth 

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3 While the Commonwealth’s Exhibit 6 (the DVD of the surveillance video 

footage) is included in the record, it is not viewable. While our inability to 

view the video footage is regrettable, it does not affect our disposition, as 

there is no dispute among the parties as to what the video footage shows and 

does not show, and the circumstantial evidence of Dunkle’s guilt is 

overwhelming. 
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need not be absolutely incompatible with Dunkle’s innocence. Id. Instead, 

the Commonwealth may sustain its burden of proving every element of the 

crime beyond a reasonable doubt by means of wholly circumstantial evidence. 

See Jacoby, 170 A.3d at 1078. 

We conclude that the mass of circumstantial evidence produced by the 

Commonwealth, when considered collectively, was legally sufficient to prove 

beyond a reasonable doubt that Dunkle committed retail theft. Ample

evidence was presented for the jury to find that Dunkle took the ten expensive 

Lego items and, when out of view of surveillance cameras, placed different 

bar codes on those items so that they would reflect a cheaper product when 

he scanned them himself. From this evidence, the jury could infer that Dunkle 

acted with the intention of under-ringing the items to deprive Walmart of their 

full retail value. Accordingly, we agree that Dunkle’s sufficiency challenge is, 

in fact, wholly frivolous. 

Finally, as required by Anders, we have independently reviewed the 

record in order to determine whether there are any non-frivolous issues 

present in this case. Our independent review of the record discloses no other 

non-frivolous issues that Dunkle could raise that his counsel overlooked. 

Dempster, supra. Having concluded that there are no meritorious issues, 

we grant Attorney Spessard’s petition to withdraw as counsel, and affirm the 

judgment of sentence.
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Petition to withdraw as counsel granted. Judgment of sentence 

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/25/2020