J-S01042-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

CICERO JAMES QUINN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1045 MDA 2020

Appeal from the Judgment of Sentence Entered August 10, 2020

In the Court of Common Pleas of Schuylkill County Criminal Division at 

No(s): CP-54-CR-0002024-2019

BEFORE: LAZARUS, J., McCAFFERY, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 29, 2021

Appellant Cicero James Quinn appeals from the judgment of sentence 

entered in Schuylkill County after a jury convicted Appellant of retail theft, 

receiving stolen property, and criminal conspiracy. Appellant challenges the 

sufficiency of the evidence supporting his convictions and argues that the trial 

court improperly graded his convictions as first-degree misdemeanors in 

violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348 (2000). 

We vacate Appellant’s sentence and remand for resentencing.

The trial court summarized the factual background as follows:

On approximately July 29, 2019, Desirae Somers, the asset 

protection manager at the Tamaqua Walmart, was notified by a 

Walmart associate that empty Yo-Gi-Oh! card packets were found 

in the Garden Center. Ms. Somers then began her investigation. 

Initially Ms. Somers totaled the cost of the empty card packages, 

which totaled $306.36. Then, through the use of Walmart’s 

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* Former Justice specially assigned to the Superior Court.
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camera system, Ms. Somers was able to reconstruct 

Defendant/Appellant’s time throughout Walmart. The video, 

which was played during the trial, showed Defendant/Appellant 

entering Walmart with another male, walking through Walmart 

with the same male, discarding empty card packages, concealing 

the cards on his person, and leaving with the other male. The 

video played for the jury showed the pair hanging around the 

Garden Center for an extended period of time where the empty 

packages were found, and the pair made no purchases from the 

entire store. Ms. Somers testified she had absolutely no doubt 

that the suspect in the video and picture taken from the video of 

the night of the incident was the Defendant/Appellant.

Officer Weaver testified that he became involved in the 

investigation. Officer Weaver was given the report from Ms. 

Somers regarding the theft of the cards and he ultimately was the 

one who arrested the Defendant/Appellant and filed the charges. 

Officer Weaver identified the Defendant/Appellant as the 

individual from the video footage.

Trial Court Opinion (T.C.O.), 10/6/20, at 2.

On June 23, 2020, a jury convicted Appellant of the aforementioned 

charges, which were all graded as first-degree misdemeanors. On August 10, 

2020, the trial court sentenced Appellant to one to twelve months’ 

imprisonment for retail theft and twelve months’ probation for conspiracy to 

run consecutive to his prison sentence. This timely appeal followed.

Appellant raises the following issues on review:

1. Was the evidence presented at trial legally insufficient to 

support the jury’s finding of guilt for the charges of retail theft, 

receiving stolen property, and criminal conspiracy?

2. Is [Appellant’s] sentence unlawful insofar as he was sentenced 

for the crimes of retail theft, receiving stolen property, and 

criminal conspiracy graded as first-degree misdemeanors 

where the jury did not make a finding of fact with regards to 

the value of the items stolen?

Appellant’s Brief, at 4.
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In reviewing Appellant’s challenge to the sufficiency of the evidence

supporting his convictions, our standard of review is as follows:

The standard we apply when reviewing the sufficiency of the 

evidence is 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.

In addition, we note that the facts and circumstances established 

by the Commonwealth need not preclude every possibility of 

innocence. Any doubts regarding a defendant's guilt may be 

resolved by the fact-finder unless the evidence is so weak and 

inconclusive that as a matter of law no probability of fact may be 

drawn from the combined circumstances. The Commonwealth 

may sustain its burden of proving every element of the crime 

beyond a reasonable doubt by means of wholly circumstantial 

evidence. Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be 

considered. 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. Furthermore, 

when reviewing a sufficiency claim, our Court is required to give 

the prosecution the benefit of all reasonable inferences to be 

drawn from the evidence.

However, the inferences must flow from facts and circumstances 

proven in the record, and must be of such volume and quality as

to overcome the presumption of innocence and satisfy the jury of 

an accused's guilt beyond a reasonable doubt. The trier of fact 

cannot base a conviction on conjecture and speculation and a 

verdict which is premised on suspicion will fail even under the 

limited scrutiny of appellate review.

Commonwealth v. Ovalles, 144 A.3d 957, 968–69 (Pa.Super. 2016) 

(citation omitted).
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As noted above, Appellant was convicted of retail theft, receiving stolen 

property, and criminal conspiracy. Section 3929 of the Crimes Code provides 

that an individual can be convicted of retail theft if he or she:

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 mercantile 

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(a)(1).

Section 3925(a) of the Crimes Code provides that an individual is guilty 

of receiving stolen property if he or she: “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 of with intent to restore it to the owner.’” 18 Pa.C.S.A. 

§ 3925(a).

With respect to the crime of conspiracy, this Court has provided:

To convict a defendant of conspiracy, the trier of fact must find 

that: (1) the defendant intended to commit or aid in the 

commission of the criminal act; (2) the defendant entered into an 

agreement with another (a “co-conspirator”) to engage in the 

crime; and (3) the defendant or one or more of the other coconspirators committed an overt act in furtherance of the agreed 

upon crime. 18 Pa.C.S.[A.] § 903. The essence of a criminal 

conspiracy, which is what distinguishes this crime from accomplice 

liability, is the agreement made between the co-conspirators.

“[M]ere association with the perpetrators, mere presence at the 

scene, or mere knowledge of the crime is insufficient” to establish 

that a defendant was part of a conspiratorial agreement to commit 

the crime. There needs to be some additional proof that the 

defendant intended to commit the crime along with his co-
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conspirator. Direct evidence of the defendant's criminal intent or 

the conspiratorial agreement, however, is rarely available. 

Consequently, the defendant's intent as well as the agreement is 

almost always proven through circumstantial evidence, such as by 

“the relations, conduct or circumstances of the parties or overt 

acts on the part of the co-conspirators.” Once the trier of fact finds 

that there was an agreement and the defendant intentionally 

entered into the agreement, that defendant may be liable for the 

overt acts committed in furtherance of the conspiracy regardless 

of which co-conspirator committed the act.

Commonwealth v. Golphin, 161 A.3d 1009, 1018–19 (Pa.Super. 2017), 

(quoting Commonwealth v. Murphy, 577 Pa. 275, 292, 844 A.2d 1228, 

1238 (2004) (citations and quotations omitted)).

Appellant specifically claims there was insufficient evidence to show he 

had knowledge that his co-defendant, identified as Brandon Outridge, did not 

purchase the trading cards. While Appellant concedes that one of the 

surveillance video clips captured footage of Appellant opening several trading 

card packs with Outridge, Appellant points out that the video evidence fails to 

show Appellant was with Outridge when he initially selected the trading cards. 

As there are gaps in the video surveillance which were not timestamped, Appellant asserts that it is possible that Outridge paid for the 

selected cards and met with Appellant at another part of the store. In 

addition, Appellant argues that his mere presence at the Walmart with 

Outridge was not sufficient evidence to convict him of conspiracy.

Walmart’s surveillance videos captured footage of Appellant and 

Outridge entering the store together and also recorded Appellant and Outridge 

acting in tandem when they were ripping open the card packages, concealing 
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Yu-Gi-Oh! cards on their person, and discarding the package wrappers on a 

shelf in the Garden Center. Notes of Testimony (N.T.), 6/23/20, at 37. 

Walmart associates discovered wrappers for thirty-two packets of the trading 

cards on a shelf in the Garden Center. N.T. at 34-35. 

Walmart’s asset protection manager, Desirae Somers, indicated that the 

value of the thirty-two packets of trading cards was $306.36. N.T. at 35. 

Neither Appellant nor Outridge made any purchases and left the Walmart 

together.

When reviewing the evidence in the light most favorable to the 

Commonwealth as verdict winner, we find there was sufficient evidence to 

allow the jury to infer that Appellant knew that the trading cards were stolen 

and worked with Outridge according to a common plan to intentionally retain 

the cards, conceal them on their persons, and leave the store without paying 

for them. Appellant’s own admission that he opened several packets of cards 

belies his assertion that he was “merely present” while Outridge committed 

the thefts. As such, Appellant’s sufficiency claim fails.

Appellant also argues that the trial court erred in grading his convictions 

for retail theft, receiving stolen property, and criminal conspiracy as firstdegree misdemeanors when the jury was never asked to make a finding of 

fact as to the value of the items stolen. Appellant argues that his sentence 

was rendered illegal under Apprendi in which the Supreme Court of the 

United States held that “[o]ther than the fact of a prior conviction, any fact 

that increases the penalty for a crime beyond the prescribed statutory
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maximum must be submitted to a jury, and proved beyond a reasonable 

doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348.

As an initial matter, we recognize that Appellant raised this claim for the 

first time in his appellate brief. However, this Court has recognized that 

“because a challenge to a sentence premised upon Apprendi implicates the 

legality of that sentence, it cannot be waived on appeal.” Commonwealth

v. Newman, 99 A.3d 86, 90 (Pa.Super. 2014) (quoting Commonwealth v.

Roney, 581 Pa. 587, 866 A.2d 351 n. 32 (2005)).

Section 3929(b)(1) of the Crimes Code governs the grading of the 

offense of Retail Theft and provides in relevant part:

(1) Retail theft constitutes a:

(i) Summary offense when the offense is a first offense and 

the value of the merchandise is less than $150.

(ii) Misdemeanor of the second degree when the offense is 

a second offense and the value of the merchandise is less 

than $150.

(iii) Misdemeanor of the first degree when the offense is a 

first or second offense and the value of the merchandise is 

$150 or more.

18 Pa.C.S.A. § 3929(b)(1).

Section 3903 of the Crimes Code governs the grading of a Receiving 

Stolen Property charge and provides in pertinent part, that the offense 

constitutes a first-degree misdemeanor when the property value is $200 or 

greater, a second-degree misdemeanor if the amount involved was $50 or 
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more but less than $200, and a misdemeanor of the third degree when the 

amount involved was less than $50. 18 Pa.C.S.A. § 3903(b).

Further, Section 905(a) provides that a criminal conspiracy conviction 

must have the same grading as the most serious offense which is the object 

of the conspiracy. 18 Pa.C.S.A. § 905(a).

In reviewing the record in this case, we find that the prosecution

charged Appellant with retail theft, receiving stolen property, and conspiracy

as first-degree misdemeanors, and alleged that Appellant stole multiple packs 

of Yu-Gi-Oh trading cards valued at $306.36. At trial, Walmart’s asset 

protection manager testified that she recovered thirty-two empty wrappers 

for the trading cards, which were scanned and determined to have a pre-tax 

value of $306.36. The defense did not stipulate to the value of the cards.

However, the jury was never asked to make any factual determination 

with respect to the value of the stolen property. The Commonwealth did not 

object to the trial court’s failure to present the jury with the questions 

necessary to elevate the grading of the aforementioned offenses to firstdegree misdemeanors, that is, whether the value of the stolen property 

exceeded the amount set forth in each statute. In addition, the 

Commonwealth concedes that the prosecution did not assert that Appellant 

had been previously convicted of retail theft.

As such, pursuant to Apprendi, the jury’s verdict did not authorize the 

trial court to grade Appellant’s offenses as first-degree misdemeanors. The 

jury did not reach a factual finding with respect to the value of the stolen 
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property and the prosecution did not show that Appellant had a previous 

conviction for retail theft.

As a result, Appellant’s retail theft conviction should be reduced to a 

summary conviction and Appellant’s convictions for receiving stolen property 

and criminal conspiracy should be both be graded as third-degree 

misdemeanors. Accordingly, we vacate Appellant’s sentence and remand for

resentencing.

Judgment of sentence vacated. Case remanded for resentencing 

consistent with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/29/2021