J-S84040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

RAYMOND CHARLES CANTWELL, JR.

Appellant No. 1248 EDA 2016

Appeal from the Judgment of Sentence March 23, 2016

in the Court of Common Pleas of Bucks County Criminal Division

at No(s): CP-09-CR-0007644-2015

BEFORE: OLSON, SOLANO, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 16, 2016

Appellant, Raymond Charles Cantwell, Jr., appeals from the judgment 

of sentence entered in the Bucks County Court of Common Pleas, following a 

jury trial1and his conviction for retail theft.2 Appellant contends the 

evidence was insufficient to convict him of retail theft. We affirm.

The trial court summarized the facts of this case as follows:

On November 25, 2015, [Appellant] was observed on 

video surveillance selecting several items from the shelves 

of the Home Depot . . . by John Baran, the store’s head of 

loss prevention. When he was first observed, [Appellant] 

had an item identified as a “mailbox in a box” in his 

shopping cart. [Appellant] was seen entering what was 

identified as the “tool corral” of the store, the area where 

 

*

Former Justice specially assigned to the Superior Court.

1 We note that the notes of testimony from the jury trial are erroneously 

dated March 22, 2014.

2 18 Pa.C.S. § 3929(a)(1).
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the high-priced tools and related items are displayed. 

[Appellant] selected two items, a Milwaukee brand power 

tool valued at $79 and Milwaukee brand batteries for 

power tools valued at $99, and placed them in his cart. 

After observing what he believed to be suspicious

behavior, Mr. Baran then began to follow [Appellant] as he 

moved around the store. In Aisle 12, [Appellant] selected 

a thermostat from a shelf and placed it in his cart. He 

then moved down Aisle 11 and proceeded to the garden 

department. While there, [Appellant] took the Milwaukee 

batteries from his cart and attempted to remove the 

security sensor from the Milwaukee batteries. He was 

unsuccessful. He then placed both of the Milwaukee 

products that he had in his possession in his jacket, zipped 

the jacket approximately three quarters of the way up and 

moved into the greenhouse section of the garden 

department. When Mr. Baran followed, [Appellant] walked 

behind a large cart of plants, removed the items from his 

jacket and placed them on the shelf among the plants. He 

then proceeded to the cashier at the exit of the garden 

department and paid for the mailbox in the box. The 

thermostat that [Appellant] had previously placed in the 

cart was no longer present and was never located. After 

[Appellant] left the store, Mr. Baran identified himself and 

asked [Appellant] to return to the store. [Appellant] was 

initially confrontational and refused to comply. He then 

attempted to flee on foot. Mr. Baran then retrieved the 

two power tool items concealed in the greenhouse and 

called the police. While Mr. Baran and [Appellant] waited 

for the police to arrive, [Appellant] told Mr. Baran that he 

never picked up any Milwaukee products. He later offered 

to pay for those items.

Trial Ct. Op., 6/21/16, at 1-2 (footnotes omitted).

Appellant was sentenced to one to two years’ imprisonment. This 

timely appeal followed. Appellant filed a court ordered Pa.R.A.P. 1925(b) 

statement of errors complained of on appeal. The trial court filed a 

responsive opinion.

Appellant raises the following issue for our review:
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A. Whether the evidence was sufficient to prove the 

Appellant guilty of retail theft beyond a reasonable doubt 

where the Commonwealth did not prove that Appellant did 

take possession of, carry away, transfer or cause to be 

carried away or transferred, merchandise displayed, held 

stored or offered for sale by Home Depot with the intention 

of depriving the merchant of the possession, use or benefit 

of such merchandise without paying full retail value.[3]

Appellant’s Brief at 4.

Appellant argues the evidence was insufficient to prove beyond a 

reasonable doubt that he was guilty of retail theft because he lacked “the 

requisite intent to deprive the merchant of any items.” Appellant’s Brief at 

11.4 He avers the Commonwealth failed to establish that Appellant had “the 

 

3 Appellant did not file post-sentence motions. However, challenges to the 

sufficiency of the evidence can be raised for the first time on appeal. See

Pa.R.Crim.P. 606(A)(7).

4 We consider whether Appellant also challenges the weight of the evidence. 

Appellant contends that “[t]he Commonwealth’s evidence presented through 

the loss prevention employee is incredible and unbelievable.” Appellant’s 

Brief at 13. 

In Commonwealth v. DeJesus, 860 A.2d 102 (Pa. 2004), the 

Pennsylvania Supreme Court opined:

The [a]ppellant’s claim challenges the weight, not the 

sufficiency, of the evidence. The weight of the evidence is 

exclusively for the finder of fact, which is free to believe 

all, part, or none of the evidence, and to assess the 

credibility of the witnesses. Questions concerning 

inconsistent testimony . . . go to the credibility of the 

witnesses. This Court cannot substitute its judgment for 

that of the jury on issues of credibility.

Id. at 107 (citations omitted and emphases added). Instantly, Appellant 

argues the testimony of the Commonwealth’s witness was not credible. See 
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intent to permanently deprive the merchant of the value of the merchandise 

concealed on his person.” Id. at 13.

“A claim challenging the sufficiency of the evidence is a question of 

law.” Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). 

As this case involves a question of law, our scope of 

review is plenary. Our standard of review is de novo.

 * * *

[T]he critical inquiry on review of the sufficiency of the 

evidence to support a criminal conviction . . . does not 

require a court to ask itself whether it believes that the 

evidence at the trial established guilt beyond a reasonable 

doubt. Instead, it must determine simply whether the 

evidence believed by the fact-finder was sufficient to 

support the verdict. . . .

 * * *

When reviewing the sufficiency of the evidence, an 

appellate court must determine whether the evidence, and 

all reasonable inferences deducible from that, viewed in 

the light most favorable to the Commonwealth as verdict 

winner, are sufficient to establish all of the elements of the 

offense beyond a reasonable doubt. 

 

id. Appellant, however, failed to raise his weight claim before the trial 

court; therefore, he has waived it on appeal. See Pa.R.Crim.P. 607(A); 

Commonwealth v. Sherwood, 982 A.2d 483, 494 (Pa. 2009) (holding 

weight claim waived where the “[a]ppellant did not make a motion raising a 

weight of the evidence claim before the trial court as the Pennsylvania Rules 

of Criminal Procedure require”). Appellant did not raise a weight of the 

evidence claim in his Rule 1925(b) statement, and thus, he waived the 

claim. See Pa.R.A.P. 1925(b)(4)(vii) (holding “[i]ssues not included in the 

Statement and/or not raised in accordance with the provisions of this 

paragraph (b)(4) are waived.)
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Commonwealth v. Ratsamy, 934 A.2d 1233, 1235-36, 1237 (Pa. 2007) 

(citations and quotation marks omitted). “The Commonwealth may sustain 

its burden of proving every element of the crime beyond a reasonable doubt 

by means of wholly circumstantial evidence.” Commonwealth v. Caban, 

60 A.3d 120, 132 (Pa. Super. 2012) (citation omitted).

Section 3929 of the Crimes Code defines retail theft:

(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[5] 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. § 3929(a)(1). There is a presumption that

[a]ny person intentionally concealing[6] 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 

 

5 Merchandise is defined as follows: “Any goods, chattels, foodstuffs or 

wares of any type and description, regardless of the value thereof.” 18 

Pa.C.S. § 3929(f).

6 The term conceal is statutorily defined as follows: “To conceal merchandise 

so that, although there may be some notice of its presence, it is not visible 

through ordinary observation.” Id.
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among the belongings of such person, shall be prima facie

evidence of intentional concealment, and, if such person 

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.

Id. § 3929(c). “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).” Commonwealth v. 

Martin, 446 A.2d 965, 968 (Pa. Super. 1982). 

In Commonwealth v. Jones, 528 A.2d 1360 (Pa. Super. 1987), this 

Court found the defendant had the intent to deprive the merchant of certain 

items. The Jones Court opined:

The evidence received at trial established that [the 

defendant] concealed the unpurchased meat under his 

coat. The Commonwealth’s witness testified that he 

observed appellant picking up two or three pieces of meat 

and that when he started following appellant down the 

aisle, appellant had already “put the meat inside his coat 

and his coat was maybe zipped halfway up.” The witness 

then described appellant as having “a big bulge you could 

see” under his coat. From this testimony, the trial court 

could presume that appellant harbored the requisite intent.

Id. at 1362 (citations omitted). “Further, [f]light does indicate 

consciousness of guilt, and a trial court may consider this as evidence, along 

with other proof, from which guilt may be inferred.” Commonwealth v. 

Dent, 837 A.2d 571, 576 (Pa. Super. 2003) (quotation marks and citation 

omitted).

In the case sub judice, the trial court opined:
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Viewing all the evidence admitted at trial in the light 

most favorable to the Commonwealth as verdict winner, 

the evidence clearly established each element of the crime 

of retail theft. . . . The property in question, the 

Milwaukee power tool and batteries clearly constitute 

“merchandise” within the meaning of the retail theft 

statute. The evidence established that merchandise was 

“offered for sale” at Home Depot, a retailer of home 

improvement and construction products. The only 

remaining element question is whether there was sufficient 

evidence for the jury to conclude that [Appellant] intended 

to deprive the store of its property without paying for it. 

In meeting its burden of proof with regard to this element, 

the Commonwealth is not required to show that the 

merchandise was removed from the building or that 

[Appellant] passed all points of sale. . . . [T]he intent to 

deprive may be inferred from a defendant’s act of 

concealing the property, either on his person or within the 

store. Here, [Appellant] concealed items inside his jacket. 

. . . The jury’s finding of intent was also supported by 

evidence [Appellant] attempted to remove the security 

sensor from one of the items, that he conceal[ed] both 

items in another area of the store after store security 

began to follow him and that, when confronted by store 

security, he attempted to flee the scene. 

Trial Ct. Op. at 4-5 (citations and footnotes omitted). We agree no relief is 

due.

At trial, Mr. Baran, the store’s head of loss prevention, testified as 

follows:

[The Commonwealth]: What does [Appellant] do when he 

gets to Aisle 2, the garden department?

A: When he gets to Aisle 2, he stands between two 

displays that are in the aisle in an attempt to conceal 

himself and begins trying to remove the security sensor 

from one of the Milwaukee items.

Q: And are you watching him do all this on the floor?
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A: Yes. I am at the opposite end of the aisle.

Q: Do you recall which item it was that he was trying to 

remove the security item?

A: It was the batteries valued at $99.

 * * *

Q: So basically what is the purpose of that security tag?

A: To prevent or deter theft.

 * * *

Q: Was [Appellant] successful in trying to pull that off by 

himself?

A: No, he was not.

Q: What did he do then?

A: Walked several more feet carrying both of the 

Milwaukee products and concealed them in his jacket.

Q: Could you describe, what do you mean by that?

A: Basically place them inside his jacket, whether in a 

pocket or something, and then zipped his coat up three 

quarters of the way.

Q: And then what did you [sic] do from there?

A: Then he proceeds to the outside greenhouse of the 

garden department.

 * * *

Q: Is there anyone else outside of that greenhouse section 

of the store when [Appellant] goes out there?

 * * *

A: No, there was nobody else out there.
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 * * *

Q: . . . What happened in the greenhouse section of the 

store?

A: I followed him out . . . . I observed him walk behind a 

large cart of plants . . . .

This cart is approximately 6 feet wide by about 7 feet 

tall, full of plants. I observed him walk behind there, at 

which time I came around to get a different angle so I 

could see him, and then watched him remove the item 

from his jacket and place it in the plants.

 * * *

Q: From the place where [Appellant] placed the power 

tools, about how much further is it towards a register, a 

register?

A: . . . I would say approximately 30 feet, 35 feet. . . .

Q: And is that the exit out of the store, also?

A: Yes. That is one of the exits, yes, sir.

 * * *

Q: . . . Did you confront [Appellant] outside of the store?

A: Yes. As he walked out of the garden gates . . . .

Q: What happened during that incident?

A: I walked in front of him, identified myself as loss 

prevention, asked him to come back into the store. He 

immediately became confrontational. Probably spent 

maybe approximately ten seconds asking him repeatedly 

to come back in the store. He refused, and then 

attempted to run from me.

 * * *

Q: Where did he try to go?
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A: He attempted to run to my right. I was able to grab 

him by the jacket. We scuffed around, ended up falling to 

the ground. And then with the assistance of two 

customers I was able to handcuff him and then escort him 

back into the store.

N.T., 3/22/16, at 76-81, 87-88.

Instantly, Appellant concealed merchandise on his person and in the 

store which was sufficient evidence of his intent to deprive the merchant of 

the items. See 18 Pa.C.S. § 3929(c); Jones, 528 A.2d at 1362; Martin, 

446 A.2d at 968. Appellant attempted to flee which is indicative of 

consciousness of guilt. See Dent, 837 A.2d at 576. Viewing the evidence in 

the light most favorable to the Commonwealth as verdict winner, we find the 

evidence was sufficient to convict Appellant of retail theft. See 18 Pa.C.S. § 

3929(a)(1); Ratsamy, 934 A.2d at 1237; Caban, 60 A.3d at 132. 

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/16/2016
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