J-S81012-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

BENJAMIN ALEXANDER WAGNER

Appellant No. 1121 MDA 2018

Appeal from the Judgment of Sentence Entered May 30, 2018

In the Court of Common Pleas of Berks County

Criminal Division at No.: CP-06-CR-0002269-2017

BEFORE: STABILE, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STABILE, J.: FILED MARCH 22, 2019

Appellant Benjamin Alexander Wagner appeals from the May 30, 2018 

judgment of sentence entered in the Court of Common Pleas of Berks County 

(“trial court”), following his jury conviction for retail theft under Section 

3929(a)(1) of the Crimes Code, 18 Pa.C.S.A. § 3929(a)(1). Upon review, we 

affirm. 

The facts and procedural history of this case are undisputed. Briefly, on 

March 31, 2017, Officer Charles N. Miller, III, Spring Township Police 

Department, charged Appellant with, inter alia, retail theft, accusing him of 

stealing a pair of black Adidas CloudFoam Revival Sneakers, valued at $85.00, 

from Kohl’s department store in Wyomissing, Pennsylvania. On April 11, 

2018, the case proceeded to trial, following which a jury found Appellant guilty 

____________________________________________

* Former Justice specially assigned to the Superior Court.
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of retail theft of merchandise of some value less than $150.00. On May 30, 

2018, the trial court sentenced Appellant to eighteen to thirty-six months’ 

imprisonment followed by four years’ probation. On June 8, 2018, Appellant 

filed post-sentence motions, asserting, among other things, that the verdict 

was against the weight of the evidence. On June 12, 2018, the trial court 

denied Appellant’s motion. Appellant timely to appealed to this Court. Both 

the trial court and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant raises two issues for our review.

I. Did the trial court err in denying the post-sentence motion 

given that there was insufficient evidence to find [Appellant] 

guilty of retail theft in light of the fact that the 

Commonwealth witnesses who testified did not prove that 

there was concealment and the video does not show a 

concealment?

II. Did the trial court err in denying the post-sentence motion 

given that the verdict was against the weight of the evidence 

in light of the fact that the Commonwealth witnesses who 

testified did not prove that there was concealment and the 

video does not show a concealment?

Appellant’s Brief at 5 (unnecessary capitalization omitted). 

We first address Appellant’s argument that the evidence was insufficient 

to sustain his conviction for retail theft because the Commonwealth failed to 

establish concealment. Appellant’s Brief at 11. In support, Appellant argues 

that the Commonwealth’s witness, Jared Martin, “never actually observed 

Appellant conceal the shoes and never observed Appellant leave the store with 

the shoes.” Id. at 12. 

A claim challenging the sufficiency of the evidence is a question of law.” 

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000).
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The standard we apply in 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 finder 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. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) 

(emphasis added), appeal denied, 95 A.3d 275 (Pa. 2014).

Section 3929 of the Crimes Code, relating to retail theft, provides in 

pertinent part:

(a) Offense defined.--A person is guilty of a 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 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[.]

 . . . .

(c) Presumptions.--Any person intentionally concealing 

unpurchased property of any store or other mercantile 

establishment, either on the premises or outside the premises of 

such store, shall be prima facie presumed to have so concealed 

such property with the intention of depriving the merchant of the 

possession, use or benefit of such merchandise without paying the 

full retail value thereof within the meaning of subsection (a), and 

the finding of such unpurchased property concealed, upon the 

person or among the belongings of such person, shall be prima 

facie evidence of intentional concealment, and, if such person 
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conceals, or causes to be concealed, such unpurchased property, 

upon the person or among the belongings of another, such fact 

shall also be prima facie evidence of intentional concealment on 

the part of the person so concealing such property.

18 Pa.C.S.A. § 3929(a)(1), (c); see Commonwealth v. Martin, 446 A.2d 

965, 968 (Pa. Super. 1982) (“If a person conceals merchandise either in a 

store or outside of it, without first having paid for it, it reasonably follows that 

he intends to deprive the merchant of the item(s).”). 

To the extent Appellant argues that Section 3929(c) requires the 

Commonwealth to prove concealment as an element of retail theft, such 

argument lacks merit. First, as the trial court and the Commonwealth point 

out, Section 3929(c)’s presumption is not an element of retail theft under 

Section 3929(a). This Court has stated that “intent can be proven by direct 

or circumstantial evidence; it may be inferred from acts or conduct or from 

the attendant circumstances.” Commonwealth v. Franklin, 69 A.3d 719, 

723 (Pa. Super. 2013). Second, as the Commonwealth astutely notes, 

Appellant “offers no precedential support for his claim that the presumption 

found in [Section] 3929(c) operates as an additional element to the offense 

of retail theft defined under [Section] 3929(a)(1).” Commonwealth’s Brief at 

8. Indeed, no such support exists. Finally, our review of the record indicates 

that the Commonwealth did not rely on the Section 3929(c) presumption in 

prosecuting Appellant for retail theft. Rather, the Commonwealth proved 

through circumstantial evidence that Appellant possessed the requite intent 
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to deprive Kohl’s of the Adidas sneakers. The Commonwealth offered the 

testimony of Mr. Martin at trial. As recounted by the trial court:

Jared Martin, who was working as a loss prevention supervisor for 

Kohl’s Department Store on January 30, 2017, testified that on 

that day he was monitoring the store for unusual activity. Mr. 

Martin grew suspicious of Appellant because [Appellant] was 

wearing a baggy jacket. Due to his suspicion, Mr. Martin returned

to his office and began to observe Appellant with the store’s 

surveillance system. Mr. Martin saw Appellant go to the shoe 

department, remove a pair of sneakers from a box, and then put 

the box back onto the shelf. Mr. Martin subsequently walked to 

the shoe department, opened the box, and confirmed that it was 

empty.

Mr. Martin then followed Appellant, who had passed all 

points of sale, outside the store, identified himself as a loss 

prevention officer, and asked Appellant to come back into the 

store. Mr. Martin told Appellant that if he did not come back into 

the store, he would be forced to call the police. As soon as Mr. 

Martin dialed 911, Appellant ran away in the direction of a 

shopping center located on Peppermill Road in Wyomissing, 

Pennsylvania. 

Mr. Martin testified that he then wrote a report about the 

incident that was introduced into evidence[.] . . . Mr. Martin also 

testified that the merchandise that was stolen was a pair of Adidas 

Neoblack/White Cloudfoam Revival Mid Size 10 shoes that had a 

retail value of eighty-five dollars. Finally, Mr. Martin testified that 

he burnt a copy of the surveillance video to a CD, which was 

admitted into evidence[.]

Trial Court Opinion, 10/3/18, at 3-4 (record citations omitted). 

Based on the foregoing evidence presented at trial, viewed in the light 

most favorable to the Commonwealth, we agree with the trial court’s 

conclusion that the Commonwealth proved the necessary elements of retail 

theft. Thus, as the trial court explained: “Mr. Martin’s testimony, taken alone, 

provided sufficient circumstantial evidence to support Appellant’s conviction. 

The fact the jury was also was able to view a video of the incident only served 
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to bolster his testimony.” Id. at 4. Accordingly, Appellant’s sufficiency claim 

fails. 

We next address Appellant’s contention that the verdict was against the 

weight of the evidence. As this Court has explained:

On this issue, our role is not to consider the underlying question 

of whether the verdict was against the weight of the evidence. 

Rather, we are to decide if the trial court palpably abused its 

discretion when ruling on the weight claim. When doing so, we 

keep in mind that the initial determination regarding the weight 

of the evidence was for the factfinder. The factfinder was free to 

believe all, some or none of the evidence. Additionally, a court 

must not reverse a verdict based on a weight claim unless that 

verdict was so contrary to the evidence as to shock one’s sense of 

justice.

Commonwealth v. Habay, 934 A.2d 732, 736-37 (Pa. Super. 2007) 

(internal citations omitted), appeal denied, 954 A.2d 575 (Pa. 2008). “[A] 

trial court’s denial of a post-sentence motion ‘based on a weight of the 

evidence claim is the least assailable of its rulings.’” Commonwealth v. 

Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting Commonwealth v. 

Diggs, 949 A.2d 873, 880 (Pa. 2008)).

Appellant argues that the “the testimony of Officer Miller shows that the 

weight of the evidence is heavily in favor of Appellant as the shoes recovered 

from Appellant’s residence by the police pursuant to a search warrant were 

size 13 and yet the shoes that were allegedly stolen by Appellant were size 

10.” Appellant’s Brief at 14. Appellant claims that “the size of the shoes is 

critical as Mr. Martin generated a report which seems to indicate that the 

empty box was for “Adidas Neoblack/White CouldFoam Revival Mid Size 10.” 

Id. (emphasis omitted). 
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It is within the province of the jury to make credibility determinations 

and this Court will not reweigh credibility determinations on appeal. “Conflicts 

in the evidence and contradictions in the testimony of any witnesses are for 

the fact finder to resolve.” Sanders, 42 A.3d at 331 (citing Commonwealth 

v. Tharp, 830 A.2d 519, 528 (Pa. 2003)). “A jury decision to credit certain 

evidence and reject other testimony is appropriate; therefore, the trial court 

did not abuse its discretion in concluding that its sense of justice was not 

shocked by the verdict.” Id. 

Here, based upon our review of the record, as detailed above in 

connection with Appellant’s sufficiency claim, we find no abuse of discretion 

on the part of the trial court for concluding its sense of justice was not shocked 

by the verdict. In particular, our review of the trial transcript reveals that the 

defense called as its witness, Officer Miller, who only testified that, pursuant 

to a search warrant, he located a pair of size 13 shoes, “roughly 11 months” 

after the theft. N.T. Trial, 4/11/18, 85-86. No evidence was elicited at trial 

to establish whether the discovery of the size 13 shoes in any was related to 

the theft at issue.1 Thus, Appellant invites us to presume that because the 

search warranted resulted in the discovery of size 13 shoes, he could not have 

stolen the size 10 Adidas sneakers. We decline the invitation. As the trial 

court noted, “the jury heard testimony from Mr. Martin and also viewed a 

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1 Section 3929(c.1) provides that “[t]o the extent that there is other 

competent evidence to substantiate the offense, the conviction shall not be 

avoided because the prosecution cannot produce the stolen merchandise.” 18 

Pa.C.S.A. § 3929(c.1). 
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video of Appellant committing retail theft.” Trial Court Opinion, 10/3/18, at 

6. Accordingly, Appellant’s second and final issue, therefore, fails.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/22/2019