J-S66026-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

ELIZABETH DALTON

Appellant No. 89 MDA 2016

Appeal from the Judgment of Sentence December 2, 2015

In the Court of Common Pleas of Berks County

Criminal Division at No(s): CP-06-CR-0000809-2015

BEFORE: BOWES, J., PANELLA, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J. FILED DECEMBER 09, 2016

Appellant, Elizabeth Dalton, appeals from the judgment of sentence 

entered following a bench trial in the Berks County Court of Common Pleas. 

Dalton argues that the evidence adduced at trial was insufficient to support 

her convictions and that the verdict was against the weight of the evidence. 

After careful review, we affirm. 

The relevant facts and procedural history are as follows. On December 

1, 2014, Rachel Merkel, asset protection manager for Target in Exeter, Berks 

County, Pennsylvania, discovered that baby formula was missing from the 

store. Merkel reviewed the previous day’s security footage and observed that 

a man, later identified as Eric Carr, had removed all of the baby formula 

from the shelf and concealed it in a tote. Merkel then began to track Carr’s 

movements throughout the store, and determined that Carr entered the 
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Target alone and went directly to the health and beauty section. Dalton and 

her husband, Larry Brown, were already located in that section of the store. 

Before Carr entered the health and beauty section, Dalton appeared to ask a 

nearby Target employee a question, and Dalton and the Target employee 

walked away together. As Carr entered the health and beauty section, Brown 

met Carr in the toothpaste aisle. Brown and Carr removed teeth whitening 

products from a shelf and concealed the items in Carr’s tote. Dalton, Brown, 

and Carr then met in the shaving product aisle, where Brown and Carr 

placed shaving products in Carr’s tote. Following the removal of the shaving 

products, Carr walked towards the baby formula aisle, while Brown and 

Dalton left their shopping cart in the center of the store, and exited without 

purchasing any items. Once Carr removed the baby formula, he exited the 

store without paying for the items he was carrying in the tote. Exterior 

footage of the store revealed that Dalton and Brown left the premises via a 

car parked in an adjoining parking lot, while Carr exited by taxicab. 

Dalton was charged with two counts of retail theft and one count of 

conspiracy to commit retail theft. Dalton proceeded to a bench trial on July 

29, 2015, and was found guilty on all three counts. On December 2, 2015, 

Dalton was sentenced to 12 to 24 months’ imprisonment followed by 

probation. Dalton filed post-sentence motions, which were denied. This 

timely appeal follows. 
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Dalton raises two issues on appeal. First, Dalton argues that the 

Commonwealth failed to present sufficient evidence to prove that she 

conspired with Brown and Carr to commit retail theft and that she was an 

accomplice to Carr’s retail theft. See Appellant’s Brief, at 5. Dalton contends 

that the Commonwealth only established her mere presence at the scene of 

the crime. See id. Dalton avers that, without additional evidence that she 

aided or intended to aid in the commission of retail theft, she cannot be held 

responsible for the actions of Brown and Carr. See id. 

The standard we apply in reviewing the sufficiency of 

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 

that of 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 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. 

Commonwealth v. Helsel, 53 A.3d 906, 917-18 (Pa. Super. 2012) 

(citation omitted; brackets in original). 

Section 903 of the Crimes Code defines the crime of conspiracy. 
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(a) Definition of conspiracy.- A person is guilty of 

conspiracy with another person or persons to commit a 

crime if with the intent of promoting or facilitating its 

commission he: 

(1) agrees with such other person or persons that they 

or one or more of them will engage in conduct which 

constitutes such crime or an attempt or solicitation 

to commit such crime; or 

(2) agrees to aid such other person or persons in the 

planning or commission of such crime or of an 

attempt or solicitation to commit such crime. 

18 Pa.C.S.A. § 903(a)(1)-(2). 

[T]o sustain a conviction for criminal conspiracy, the 

Commonwealth must establish that the defendant (1) entered 

into an agreement to commit or aid in an unlawful act with 

another person or persons, (2) with a shared criminal intent and 

(3) an overt act was done in furtherance of the conspiracy. This 

overt act need not be committed by the defendant; it need only 

be committed by a co-conspirator. 

The essence of a criminal conspiracy is a common 

understanding, no matter how it came into being, that a 

particular criminal objective be accomplished. Therefore, a 

conviction for conspiracy requires proof of the existence of a 

shared criminal intent. An explicit or formal agreement to 

commit crimes can seldom, if ever, be proved and it need not 

be, for proof of criminal partnership is almost invariably 

extracted from the circumstances that attend its activities. Thus, 

a conspiracy may be inferred where it is demonstrated that the 

relation, conduct, or circumstances of the parties, and the overt 

acts of the co-conspirators sufficiently prove the formation of a 

criminal confederation. 

Commonwealth v. Knox, 50 A.3d 732, 740 (Pa. Super. 2012) (citation 

omitted). 
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An accomplice is also legally accountable for the conduct of the other 

person involved in committing the crimes. See 18 Pa.C.S.A. § 306(b)(3). 

The Crimes Code defines an accomplice as follows. 

A person is an accomplice of another person in the commission 

of an offense if: 

(1) with the intent of promoting or facilitating the commission 

of the offense he: 

(i) solicits such other person to commit it; or 

(ii) aids or agrees or attempts to aid such other 

person in planning or committing it; or 

(2) his conduct is expressly declared by law to establish his 

complicity. 

18 Pa.C.S.A. § 306(c). “Both requirements may be established wholly by 

circumstantial evidence. Only the least degree of concert or collusion in the 

commission of the offense is sufficient to sustain a finding of responsibility 

as an accomplice. No agreement is required, only aid.” Commonwealth v. 

Kimbrough, 872 A.2d 1244, 1251 (Pa. Super. 2005) (en banc) (citations 

and quotations omitted). Dalton’s conviction for retail theft was premised 

upon the theory of accomplice liability. Section 3929 of the Crimes Code 

enumerates retail theft as follows. 

(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 
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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).

Here, the Commonwealth presented evidence that Dalton and Brown 

parked in an adjoining parking lot and entered and exited the store together. 

Merkel testified that Dalton asked the Target employee a question, which 

resulted in the Target employee and Dalton walking away from the health 

and beauty section of the store. Once the Target employee left the section, 

Brown met Carr in an aisle in the health and beauty section and the two 

began to steal items and conceal the items in Carr’s tote. The surveillance 

footage shows that after Brown helped Carr steal items, Dalton and Brown 

left the store without purchasing anything. It is undisputed that Carr 

committed retail theft. 

Based upon our review of the record, we agree with the trial court that 

the evidence is sufficient to find that Dalton engaged in a conspiracy to

commit retail theft. As discussed above, a conspiracy can be inferred from 

the relation, conduct and circumstances of the co-conspirators. The evidence 

shows that Dalton is married to Brown, entered and exited the store with 

Brown, and was present while Brown and Carr concealed items in Carr’s 

tote. The Commonwealth also presented evidence that Dalton performed an 

“overt act in furtherance of the conspiracy” when she distracted the Target 

employee. This sufficiently proves the formation of a conspiracy under the 

statute. 
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Further, the evidence was sufficient to establish that Dalton assisted 

Carr commit retail theft. The Commonwealth presented evidence from which 

the trial court reasonably inferred that Dalton aided Carr by distracting the 

Target employee and leading the employee away from the health and beauty 

section so Carr could steal the items. This act is sufficient to establish 

Dalton’s liability as an accomplice for the crime of retail theft. Therefore, 

viewing the evidence in the light most favorable to the Commonwealth as 

verdict winner, we find the evidence sufficient to convict Dalton of 

conspiracy to commit retail theft and retail theft. Thus, Dalton’s first 

argument on appeal fails. 

Lastly, Dalton argues that her convictions were against the weight of 

the evidence. A challenge to the weight of the evidence “concedes that the 

evidence is sufficient to sustain the verdict, but seeks a new trial on the 

ground that the evidence was so one-sided or so weighted in favor of 

acquittal that a guilty verdict shocks one’s sense of justice.” 

Commonwealth v. Orie, 88 A.3d 983, 1015 (Pa. Super. 2014), appeal 

denied, 99 A.3d 925 (Pa. 2014) (citation omitted). 

When the challenge to the weight of the evidence is predicated 

on the credibility of trial testimony, our review of the trial court’s 

decision is extremely limited. Generally, unless the evidence is 

so unreliable and/or contradictory as to make any verdict based 

thereon pure conjecture, these types of claims are not 

cognizable on appellate review. Moreover, where the trial court 

has ruled on the weight claim below, an appellate court’s role is 

not to consider the underlying question of whether the verdict is 

against the weight of the evidence. Rather, appellate review is 
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limited to whether the trial court palpably abused its discretion in 

ruling on the weight claim. 

Commonwealth v. Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009) (internal 

quotes and citations omitted). 

To support her weight of the evidence claim, Dalton essentially 

reiterates her sufficiency of the evidence argument. See Appellant’s Brief, at 

10-17. Dalton argues that the verdict “shocks one’s sense of justice” and 

should not be allowed to stand. See id. at 5. At trial, the Commonwealth 

presented evidence in the form of the testimony of Merkel and the 

surveillance footage. Dalton did not testify or call any witnesses on her 

behalf. Therefore, Dalton’s guilt hinged on the trial court’s determination of 

Merkel’s credibility and its interpretation of Dalton’s actions in the 

surveillance footage. It is clear that the trial court found Merkel’s testimony 

credible, and concluded that Dalton conspired with Brown and Carr to steal 

from the store. We discern no abuse of discretion in the court’s assessment 

of the credibility of the witnesses or the weight of evidence at trial. We 

cannot agree with Dalton that the trial court’s guilty verdict “shocks one’s 

sense of justice.” Thus, we conclude that Dalton’s second issue merits no 

relief. 
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/2016