J-S71021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MATHIAS POLHEMUS

Appellant No. 2817 EDA 2015

Appeal from the Judgment of Sentence July 10, 2015

In the Court of Common Pleas of Chester County

Criminal Division at No(s): CP-15-CR-0001262-2014

BEFORE: BOWES, J., PANELLA, J., and FITZGERALD, J.

MEMORANDUM BY PANELLA, J. FILED NOVEMBER 22, 2016

Appellant, Mathias Polhemus, appeals from the judgment of sentence 

entered on July 10, 2015, in the Court of Common Pleas of Chester County. 

We affirm.

The relevant facts and procedural history are as follows. The 

Commonwealth charged Polhemus in the same criminal information with, 

among other charges, two counts of retail theft, 18 Pa.C.S.A. § 3929(a)(1). 

The counts arise from two separate incidents: one occurring on March 23, 

2014, and the other on March 25, 2014.

On the morning of trial, Polhemus, proceeding pro se, filed pre-trial 

motions, including a motion to sever. The trial court heard argument on the 

____________________________________________



Former Justice specially assigned to the Superior Court.
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motions and denied them. Immediately prior to the start of the trial, 

Polhemus changed his mind about proceeding pro se and decided to have his 

standby counsel represent him. The jury trial commenced.

The Commonwealth presented evidence that on March 25, 2014, 

Polhemus purchased three cans of beer at the supermarket. The employee 

who sold the beer was Jackson Hyde. When Polhemus turned to leave after 

purchasing the beer, Hyde noticed two bottles of beer protruding from 

Polhemus’s pockets. Polhemus left the store. Hyde followed him outside, 

observed Polhemus get into the passenger side of a waiting vehicle, and 

drive away. Two minutes later, the vehicle returned and Polhemus 

attempted to return one of the bottles of beer to Hyde. Hyde informed 

Polhemus that he saw him take not one, but two bottles. Polhemus returned 

to the car and came back with the other bottle, stating that he forgot to pay 

for both. Polhemus attempted to pay for the bottles, but the store manager 

declined and returned the bottles to the store stock. 

On March 28, 2014, the supermarket’s management requested the 

store’s loss prevention officer to review the surveillance footage of the March 

25 incident and from a March 23 incident. The loss prevention officer was 

able to identify Polhemus as the perpetrator of a theft on March 23 where he 

took beer and other items from the store. 

Polhemus’s defense to the March 25 incident was that he mistakenly 

took the two bottles of beer. Since his defense centered on an intent not to 
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deprive the supermarket of the beer on that date, he requested the trial 

court to instruct the jury as to the meaning of “deprive” as defined in 18 

Pa.C.S.A. § 3901. That definitions statute defines “deprive” in pertinent part, 

as “[t]o withhold property of another permanently....” The trial court refused 

Polhemus’s request. And it duly instructed the jury according to the 

Pennsylvania Suggested Standard Criminal Jury Instructions. The jury 

convicted Polhemus of all the charges. 

The trial court later imposed an aggregate sentence of imprisonment 

of 111⁄2 to 23 months. This timely appeal followed the denial of Polhemus’s 

post-sentence motions. On appeal, he raises two issues for our review. 

Polhemus first argues that the trial court erred in denying his motion 

to sever. 

[A] motion for severance is addressed to the sound discretion of 

the trial court, and ... its decision will not be disturbed absent a 

manifest abuse of discretion. The critical consideration is 

whether [the] appellant was prejudiced by the trial court’s 

decision not to sever. [The a]ppellant bears the burden of 

establishing such prejudice. 

Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010) (citation 

omitted) (alterations in original). 

To address Polhemus’s challenge, we must determine: 

[1] whether the evidence of each of the offenses would be 

admissible in a separate trial for the other; [2] whether such 

evidence is capable of separation by the jury so as to avoid 

danger of confusion; and, if the answers to these inquiries are in 

the affirmative; [3] whether the defendant will be unduly 

prejudiced by the consolidation of offenses.
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Commonwealth v. Boyle, 733 A.2d 633, 635 (Pa. Super. 1999) (citation 

omitted) (alterations in original). See also Pa.R.Crim.P. 582 and 583. 

Accordingly, our first step is to determine whether the evidence 

regarding each incident would be admissible in a separate trial for the other. 

It is impermissible to present evidence at trial of a defendant’s prior bad acts 

or crimes to establish the defendant’s criminal character or proclivities. See 

Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008). Such 

evidence, however, may be admissible “where it is relevant for some other 

legitimate purpose and not utilized solely to blacken the defendant’s 

character.” Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super. 

2007) (citation omitted). The Rules of Evidence specifically provide that 

“[e]vidence of other crimes, wrongs, or acts may be admitted for other 

purposes, such as proving ... intent ... identity, absence of mistake, or lack of 

accident.” Pa.R.E. 404(b)(2).

Polhemus concedes that evidence of the March 25 incident would be 

admissible to prove his identity as the perpetrator of the theft that occurred 

on March 23. See Appellant’s Brief, at 11. But he claims that “evidence of 

the March 23rd incident would not be admissible in a separate trial on the 

March 25th incident.” Id. His “entire defense at trial to the March 25, 2014 

incident was that he had mistakenly taken the two bottles of beer....” Id., at 

6. Evidence that he took several cans of beer and other items on March 23 
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would thus prove intent and absence of mistake or lack of accident, 

specifically disproving his defense for the March 25 incident. 

And, importantly, the evidence was not admitted merely to show 

Polhemus acted in conformity with a character trait.

The next step is to determine whether joinder of the offenses for trial 

posed a danger of confusing the jury. “Where a trial concerns distinct 

criminal offenses that are distinguishable in time, space and the characters 

involved, a jury is capable of separating the evidence.” Commonwealth v. 

Collins, 703 A.2d 418, 423 (Pa. 1997) (citation omitted). 

Polhemus entirely ignores the danger of confusion in his brief. The 

crimes occurred on different days and at different times. The subject matter 

at issue for the jury—retail theft—was simplistic. There was no danger of 

confusing the jury with evidence of each crime.

Finally, we must determine whether joinder of the offenses for trial 

unfairly prejudiced Talley.

The “prejudice” of which Rule [583] speaks is not simply 

prejudice in the sense that appellant will be linked to the crimes 

for which he is being prosecuted, for that sort of prejudice is 

ostensibly the purpose of all Commonwealth evidence. The 

prejudice of which Rule [583] speaks is, rather, that which would 

occur if the evidence tended to convict appellant only by showing 

his propensity to commit crimes, or because the jury was 

incapable of separating the evidence or could not avoid 

cumulating the evidence.

Commonwealth v. Newman, 598 A.2d 275, 279 (Pa. 1991) (citation 

omitted). 
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The burden for establishing prejudice falls squarely on Polhemus. He 

devotes just one sentence in his brief to establishing it: “[T]rying the cases 

together, particularly where the entire defense for one incident was mistake, 

was overly prejudicial to Appellant and denied him a fair trial.” Appellant’s 

Brief, at 11. We have already explained that the evidence regarding each 

theft would be admissible in a separate trial for the other. And we noted how 

the jury was readily capable of separating the evidence of the two distinct 

crimes. We can discern no unfair prejudice to Polhemus in joining the two 

offenses for a single trial. 

Polhemus next argues that the trial court erred by failing to instruct 

the jury on the definition of “deprive” as defined in 18 Pa.C.S.A. § 3901.

In reviewing a challenge to the trial court’s refusal to give a 

specific jury instruction, it is the function of this Court to 

determine whether the record supports the trial court’s decision. 

In examining the propriety of the instructions a trial court 

presents to a jury, our scope of review is to determine whether 

the trial court committed a clear abuse of discretion or an error 

of law which controlled the outcome of the case. A jury charge 

will be deemed erroneous only if the charge as a whole is 

inadequate, not clear or has a tendency to mislead or confuse, 

rather than clarify, a material issue. A charge is considered 

adequate unless the jury was palpably misled by what the trial 

judge said or there is an omission which is tantamount to 

fundamental error. Consequently, the trial court has wide 

discretion in fashioning jury instructions. The trial court is not 

required to give every charge that is requested by the parties 

and its refusal to give a requested charge does not require 

reversal unless the Appellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013) 

(citation omitted).
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Section 3929(a)(1) requires proof that a person “takes possession of, 

carries away, transfers or causes to be carried away or transferred,” store 

merchandise “with the intention of depriving the merchant of the possession, 

use or benefit of such merchandise without paying the full retail value 

thereof[.]” (emphasis added). The retail theft statute provides definitions, 

see 18 Pa.C.S.A. § 3929(f), but deprive is not a defined term in that 

subsection. “Deprive,” however, is defined in Chapter 39 of the Crimes Code. 

It has two defined meanings, but we are concerned with just one: “To 

withhold property of another permanently....” 18 Pa.C.S.A. § 3901. 

When instructing the jury, the trial court refused Polhemus’s request 

to define “deprive” for the jury. In pertinent part, the trial court instructed 

the jury as follows:

I will now define for you the crime of retail theft. The 

defendant has been charged with two counts of retail theft, one 

for each of the dates in question. 

To find the defendant guilty of the offense of retail theft, 

you must find that each of the following four elements has been 

proven beyond a reasonable doubt: first, that the defendant took 

possession of or carried away some item.

Second, that the item was merchandise offered for sale by 

the merchant, here, Giant Food Stores.

Third, the Giant was a store or other retail establishment.

Fourth, that the defendant took possession of or carried 

away the items in question with the intention of depriving the 

merchant of the possession, use or benefit of such merchandise 

without paying full retail value thereof

If after considering all of the evidence, you are satisfied 

that the Commonwealth has proved beyond a reasonable doubt 

each of the elements I have just stated, you should find the 
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defendant guilty. If you are not satisfied, you must find the 

defendant not guilty.

Regarding one of the counts of retail theft, evidence has 

been presented that the defendant intentionally concealed, 

unpurchased merchandise of the Giant store while the defendant 

was still inside the store.

If you find that this evidence has been established to your 

satisfaction beyond a reasonable doubt, you may find that the 

defendant concealed the property with the intention of depriving 

the merchant of the possession, use or benefit of such 

merchandise without paying the full retail value of it.

You, as the trier of fact, are free to credit or reject the 

inference arising from the concealment and the inference does 

not shift the burden of proof, nor the application of the beyond a

reasonable doubt standard.

Whether or not to apply this permissive presumption to the 

facts of this case is left to your discretion and common sense 

based on all of the evidence presented.

Some definitions relating to retail theft are as follows: 

Conceal means to conceal merchandise so that although there 

may be some notice of its presence, it is not visible through 

ordinary observation.

Full retail value means the merchant's stated or advertised 

price of the merchandise. Merchandise means any goods, 

chattels, food or wares of any type and description regardless of 

the value thereof.

Merchant means an owner or operator of any 

retailestablishment or any agent, employee, lessee, officer or 

independent contractor of such owner. 

Store or other retail establishment means a place where 

merchandise is displayed or sold or offered to the public for sale.

N.T., Trial, 5/19/15, at 132-135.

The trial court’s jury instructions quoted above come from the 

pertinent sections of the Pennsylvania Suggested Standard Criminal Jury 
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Instructions. See Pa.S.S.Crim.J.I. 15.2939A; 15.2939F; 15.2939G. The 

defined terms in the court’s instructions come from Pa.S.S.Crim.J.I. 

15.2939G, which are the same as those provided in § 3929(f). The court 

declined to define “deprive” for the jury as it found that the definition 

provided in § 3901 for that word “is not specific to retail theft.” Trial Court 

Opinion, 11/16/15, at 11. The court reasons that “[i]f the definition of 

‘deprive’ found in Section 3901 was to be specifically applicable to the crime 

of retail theft, it would have been included with the other definitions in 

Section 3929(f).” Id.

There is a problem with the trial court’s reasoning. The definitions 

provided in § 3901 apply throughout Chapter 39, “unless the context clearly 

indicates otherwise.” 18 Pa.C.S.A. § 3901. The context does not clearly 

indicate otherwise in § 3929(a)(1). 

Polhemus argues that the statutory definition of “deprive” is essential 

as it contains the word “permanently” whereas the ordinary definition of the 

term as defined in most dictionaries does not. See Appellant’s Brief, at 13 

(quoting Webster’s New Collegiate Dictionary 303 (8th ed. 1980)). 

Polhemus’s defense to the March 25 incident was, as mentioned, “that he 

took the property by mistake, and the jury should have been permitted to 

properly evaluate Appellant’s claim that he did not mean to ‘deprive’ Giant of 

the merchandise permanently....” Id. 
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Presumably, the jury utilized the ordinary definition of “deprive” since 

the trial court did not define it for them. This ordinary definition misled the 

jury, Polhemus maintains, as they “easily could have come to the conclusion 

that it was of no consequence whether or not Appellant meant to 

permanently deprive Giant of merchandise since they were never instructed 

on the correct definition of “deprive” as stated in Chapter 31 [sic].” Id., at 

13-14.

We see no danger of juror confusion. While the trial court’s reasoning 

in refusing to instruct the jury on § 3901’s definition of “deprive” does not 

pass muster, its jury instruction does; it accurately presented the law to the 

jury. The key portion of the charge in this regard is the following: “that the 

defendant took possession of or carried away the items in question with the 

intention of depriving the merchant of the possession, use or benefit of such 

merchandise without paying full retail value thereof.” This language is 

quoted verbatim from the Pennsylvania Suggested Standard Criminal Jury 

Instructions. See Pa.S.S.Crim.J.I. 15.2939A. It conveys to the jury that an 

“intent to deprive is an essential element of the crime of retail theft....” 

Commonwealth v. Martin, 446 A.2d 965, 969 (Pa. Super. 1982) (citation 

and footnote omitted). And the language further conveys that the intent to 

deprive is to permanently deprive the merchant of the property. Cf. 

Commonwealth v. Lipford, 331 A.2d 889 (Pa. Super. 1974). It permits of 

no reasonable consideration that the taking was temporary. 
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Judgment of sentence affirmed.

Judge Bowes joins the memorandum.

Justice Fitzgerald concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/22/2016