J-S59035-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

MARK NORTON

 Appellant No. 3387 EDA 2015

Appeal from the Judgment of Sentence August 13, 2015

in the Court of Common Pleas of Bucks County Criminal Division

at No(s): CP-09-CR-0000754-2015

BEFORE: BENDER, P.J.E., OLSON, J., and FITZGERALD,*J.

MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 07, 2016

Appellant, Mark Norton, appeals from the judgment of sentence 

entered in the Bucks County Court of Common Pleas following a jury trial 

and conviction for retail theft,1criminal conspiracy,2and possession of an 

instrument of crime.3 Appellant challenges the sufficiency and weight of the 

evidence. We affirm. 

We adopt the facts set forth in the trial court’s opinion. See Trial Ct. 

Op., 2/29/16, at 1-5. Following a jury conviction, the court sentenced 

Appellant on August 13, 2015, to fifteen to sixty months’ imprisonment. 

Appellant filed a timely post-sentence motion challenging, inter alia, the 

 

*

Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S. § 3929(a)(1).

2 18 Pa.C.S. § 903(a).

3 18 Pa.C.S. § 907(a).
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weight of the evidence. The court denied Appellant’s motion on October 28, 

2015, specifically stating:

[Court] . . . I don’t think I should overturn a jury’s verdict 

unless the evidence is obviously not sufficient; in other 

words, whether it’s clear to me that the verdict is 

erroneous, and, frankly, it’s not. I believe that the 

evidence was presented to the jury, and I believe the jury 

considered all the evidence and determined that this-these 

crimes took place. And I believe it was a fair and—the 

evidence was fairly presented. 

 

N.T., 10/28/15, 12-13.

Appellant timely appealed and timely filed a court-ordered Pa.R.A.P. 

1925(b) statement. The court filed a responsive Pa.R.A.P. 1925(a) opinion.

On appeal, Appellant raises the following issues for review:

A. Was the evidence sufficient to support the verdict for 

retail theft, conspiracy to commit retail theft and 

possessing instruments of crime?

B. Was the verdict against the weight of the evidence?

Appellant’s Brief at 4.

Appellant argues that the evidence was insufficient to support his 

convictions because no direct evidence proved that he actually removed 

stolen property from a department store. Instead, Appellant claims that the 

evidence presented at trial only established that he was merely present at 

the store and not necessarily helping the other two individuals involved 

engage in retail theft. Likewise, in his second issue, Appellant avers that his 

convictions were against the weight of the evidence because he testified that 

he did not intend to steal anything from the department store at issue and 
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because there was no evidence of him directly removing any items from the 

store. 

The standard of review for a challenge to the sufficiency of the 

evidence is de novo, as it is a question of law. Commonwealth v. 

Ratsamy, 934 A.2d 1233, 1235 (Pa. 2007). As our Supreme Court has 

explained:

[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. at 1235-37 (citations and quotation marks omitted). 

Appellant was convicted under the following statutes:

§ 3929. 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 

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 
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such merchandise without paying the full retail value 

thereof;

18 Pa.C.S. § 3929(a)(1).

§ 903. Criminal conspiracy

(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.

(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. § 903(a)(1)-(2).

§ 907. Possessing instruments of crime

(a) Criminal instruments generally.─A person commits 

a misdemeanor of the first degree if he possesses any 

instrument of crime with intent to employ it criminally.

18 Pa.C.S. § 907(a).

In addition, we note our standard of review regarding challenges to 

the weight of the evidence: 

The weight of the evidence is exclusively for the finder of 

fact who is free to believe all, part, or none of the evidence 

and to determine the credibility of the witnesses. An 

appellate court cannot substitute its judgment for that of 

the finder of fact. Thus, we may only reverse the . . . 

verdict if it is so contrary to the evidence as to shock one’s 

sense of justice.
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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 limited 

to whether the trial court palpably abused its discretion in 

ruling on the weight claim.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa. Super. 2011) 

(citations omitted). 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Wallace H. 

Bateman, Jr., we conclude Appellant’s first issue merits no relief. The trial 

court opinion comprehensively discusses and properly disposes of the first 

question presented. See Trial Ct. Op. at 5-12 (finding evidence sufficient to 

support Appellant’s convictions where trial testimony and video surveillance 

established that Appellant helped two other men abscond from a department 

store with stolen clothing by taking such clothing to a dressing room, helping 

to remove security devices with wire cutters, renting and driving a “getaway” van, fleeing when confronted by police, and abandoning the van in an 

unrelated residential drive-way). Further, the trial court found that 

Appellant’s convictions were not against the weight of the evidence where 

the verdict was clearly “not erroneous.” Id. We agree. As aptly noted by 

the trial court, significant evidence supported Appellant’s convictions. Id. 

Thus, the verdict certainly did not shock one’s sense of justice and 

Appellant’s second issue also lacks merit. See Devine, 26 A.3d at 1146. 

Accordingly, we affirm Appellant’s judgment of sentence.
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Judgment of sentence affirmed.’

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/7/2016

 
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1 

1 18 Pa.C.S. §3929(a)( I). 

2 18 Pa.C.S. §903(c). 

3 18 Pa.C.S. §907(a). 

Township, Bucks County. Mr Dicicco was working in the camera room monitoring the store via 

Dicicco. Mr. Dicicco is the Director oflnvestigation oflnternal Theft at Macy's in Bensalem 

The Commonwealth began its case-in-chief by presenting the testimony of Frank 

FACTUAL BACKGROUND 

2015. Appellant then filed a timely Notice of Appeal to Superior Court on November 4, 2015. 

Appellant filed Post-Sentence Motions on August 17, 2015, which were denied on October 28, 

than fifteen (15) months, nor more than sixty (60) months, in a state correctional institution. 

sentencing was deferred until August 13, 2015, this Court sentenced Appellant to serve not less 

Retail Theft1, cirf~ninal Conspiracy2, and Possession of an Instrument of Crime". After 

held betweendune 10, 2015 and June 11, 2015, a jury found Appellant guilty of the offenses of 

.::, 11;: 

?\ppellant was arrested by Bensalem Township Police on October 21, 2014. After a trial 

Appell~ Procedure 1925(a). 

:,_;- 

(~ -\ 

PROCEDURAL HISTORY 

*, . ·. 

Order Denying Post-Sentence Motions. We file this Opinion pursuant to Pennsylvania Rule of 

Defendant Mark Norton (hereinafter "Appellant") appeals this Court's October 28, 2015 

OPINION 

MARK NORTON 

v. 

COMMONWEALTH OF PENNSYLVANIA CP-09-CR-0000754-2015 

IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

Circulated 08/26/2016 10:06 AM
2 

closed-circuit television on the evening of October 15, 2014 when he came to encounter 

Appellant. N.T. 06/11/15, pp. 32-35. 

A store associate initially notified Mr. Dicicco of a man near the entrance of the mall who 

was acting in a suspicious manner. When Mr. Dicicco turned his attention toward that area of the 

store, he observed Appellant at the mall entrance talking on what appeared to be a cell phone 

while pacing back and forth into and out of the store, watching employees. N.T. 06/11/15, pp. 

34-35. Appellant then met with another individual, Obdol Bailey, who seemed nervous and 

fidgety. After a brief conversation, Appellant returned to pacing while Mr. Bailey went to the 

men's department and began selecting articles of clothing. N.T. 06/11/15, pp. 35-36. 

Specifically, Mr. Bailey selected numerous pairs of jeans without looking at prices or 

sizes and immediately took them to a nearby fitting room. Mr. Bailey was in the fitting room for 

approximately fifteen (15) to twenty (20) seconds before reemerging with nothing in his arms. 

N.T. 06/11/15, pp. 37-38. Mr. Dicicco observed that there was no one else in the fitting room at 

that time. At this point, Mr. Dicicco developed a belief that Appellant and Mr. Bailey were 

conducting what is known as a "hit and run," which occurs when subjects stage a large amount 

of merchandise in a fitting room to place it in bags or remove security tags, then leave the store 

quickly so security has little time to react. N.T. 06/11/15, p. 38. 

During this time, Appellant continued to talk into what Mr. Dicicco eventually came to 

identify as a two-way Motorola walkie-talkie while pacing the men's department, Appellant met 

with Mr. Bailey near the Polo clothing once Mr. Bailey left the fitting room, and together they 

selected multiple articles of Polo brand clothing including four (4) of the same Polo jackets. N.T. 

06/11/15, pp. 38-39. Appellant gave this clothing to Mr. Bailey, who entered the same fitting 

room as he used previously, and again reappeared after approximately one minute without any 
3 

clothing in his arms. Meanwhile, Appellant selected items from the Nautica section, then entered 

the fitting room himself and left after only fifteen (15) to twenty (20) seconds passed with no 

clothing in his arms. N.T. 06/11/15, pp. 39-40. 

At this point, Appellant selected an Under Armour hooded sweatshirt from a display, and 

while returning to the fitting room, Appellant approached a signage cm1 near an aisle that was 

used by employees to change advertising signs. Appellant removed a Macy's shopping bag that 

was filled with garbage, and together with the sweatshirt, went back into the fitting room and 

reemerged with nothing. N.T. 06/11/15, pp. 40-41. Mr. Bailey then went into the fitting room as 

Mr. Dicicco contacted the police. N.T. 06/11/15, p. 41. 

Meanwhile, Appellant stood by the Polo doors while still holding the walkie-talkie to his 

ear. Mr. Bailey and another individual, Lamar Alston, then exited the fitting room while carrying 

a Macy's bag overflowing with clothing. N.T. 06/11/15, p. 42. After the suspects left the store, 

Mr. Dicicco went into the fitting room, which was empty except for one stall that contained 

numerous hangars, a pile of trash with signing paperwork on the floor, and several damaged 

security tags that appeared to have been cut off of the clothing using some sort of tool. N.T. 

06/11/15, pp. 44-46. A video tape of surveillance of these events was produced in evidence and 

played for the jury. See Exhibit C-1; N.T. 06/11/15, pp. 49-79. 

When the men fled the Macy's store, police officers from Bensalem Township Police 

Department were waiting in the parking lot after having responded to Mr. Dicicco's call. N.T. 

06/11/15, p. 98. Officer Marshall pursued two men carrying a large Macy's bag to a white work 

van in the parking lot. Upon hearing the van sound like it was preparing to drive away, the 

Officer ran to the driver's door and attempted to open it. However, the van pulled away before he 

could open the door and before the one suspect, who was later found to be Mr. Alston, could 
Upon further investigation, officers recovered the white van in a local residential 

driveway. The license plate of the van matched the number that was observed on the van in the 

Macy's parking lot, and it was also observed that the passenger's side door of the van was in a 

partially open state. N.T. 06/11/15, pp. 103-04. Detectives further investigated the van, 

uncovering that it was a rental van from Enterprise that was listed under Appellant's name. 

Additionally, detectives found a large black duffle bag in the van that contained numerous 

receipts featuring Appellant's name and credit card number, two (2) walkie-talkies, as well as an 

opened pack of three (3) wire cutters with one missing from the pack. N.T. 06/11/15, pp. 114-20. 

Appellant testified that he was at Macy's with Mr. Alston, his brother, and Mr. Bailey, 

his cousin's father in order to buy Mr. Alston and his cousin" clothes for their birthdays, N.T. 

06/11/15, pp. 132-33. Appellant confirmed that he rented a van and drove himself and the two 

(2) men to Macy's. Appellant testified that they each picked out clothes and he picked out some 

clothes for them before being asked over the phone to bring the clothes and a bag to the fitting 

room. N.T. 06/11/15, pp. 134-36. Appellant claims that he was waiting by the register when Mr. 

Alston called to inform him that they had left the store. Appellant went to his van, but then he 

4 Appellant testified that his cousin was a thirteen (13) year old girl. N.T. 06/11/15, p. 133. 

4 

enter the passenger's side door. N.T. 06/11/15, pp. 99-100. Officers then pursued Mr. Alston, 

who had dropped the Macy's bag in the parking lot prior to fleeing, and apprehended him in a 

nearby cemetery. Officers were able to recover wire-cutters and a walkie-talkie on Mr. Alston's 

person at that time. N.T. 06/11/15, pp. 102-03. Mr. Dicicco recovered much of the clothing he 

observed Appellant and Mr. Bailey selecting in the store from the bag that Mr. Alston had 

dropped in the parking lot, yet several of the items had ink stains and holes where the security 

devices were removed. This clothing was valued at approximately twelve hundred dollars 

($1,200). N.T. 06/11/15, pp. 47-48. 
5 

in judging the sufficiency of the evidence is whether, when viewing the evidence in a light most 

The Pennsylvania Supreme Court has articulated that the well-settled standard of review 

was convicted. 

the jury to prove beyond a reasonable doubt that Appellant committed the crimes of which he 

jury's verdict. We demonstrate herein that the Commonwealth presented sufficient evidence to 

Appellant contends that the evidence presented at trial was not sufficient to sustain the 

I. Sufficiency of the Evidence 

ANALYSIS 

2. For similar reasons, the evidence was insufficient to support the verdicts of guilty. 

1. The verdicts were against the weight of the evidence, as there was no physical 

evidence linking defendant to these crimes; to the contrary, the physical evidence 

exculpated him. Indeed, Norton was never seen leaving the store with any 

property. There was no evidence that Norton ever possessed an instrument of 

cnme. 

verbatim: 

December 2, 2015, Appellant filed his Concise Statement, which raised the following issues, 

directing Appellant to file a Concise Statement of Matters Complained of on Appeal. On 

On November 20, 2015, this Court issued an Order pursuant to Pa.R.A.P. 1925(b) 

MATTERS COMPLAINED OF ON APPEAL 

Theft, one count of Criminal Conspiracy, and one count of Possession of an Instrument of Crime. 

Based upon the above evidence, the jury returned a guilty verdict on one count of Retail 

later fix the van or call a tow truck. N.T. 06/11/15, p. I 41. 

Macy's, he "ran something over," so he parked the van in a residential driveway so that he could 

could get in the van. N.T. 06/11/1\ pp. 139-40. Appellant further claims that while leaving 

saw Mr. Alston "run out the store ... being chased by a cop," and he left before Mr. Alston 
6 

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 

Pursuant to 18 Pa.C.S.A. 3929(a), a person is guilty of Retail Theft if he: 

A. Retail Theft 

offenses. 

sufficient evidence to the jury to prove beyond a reasonable doubt that Appellant committed the 

facts most favorable to the Commonwealth, it is apparent that the Commonwealth presented 

reasonable doubt the elements of these offenses. Based on the foregoing facts and in viewing the 

witnesses and accepted the Commonwealth's evidence to the extent it established beyond a 

Possession of an Instrument of Crime, the jury believed the testimony of the Commonwealth's 

Clearly, in finding Appellant guilty of one count each of Retail Theft, Criminal Conspiracy, and 

Commonwealth v. Ventrini. 734 A.2d 404, 406-07 (Pa. Super. 1999) (internal citations omitted). 

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. 

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. 

1996). The Superior Court has elaborated: 

654 A.2d 54 I, 543 (Pa. 1995); Commonwealth v. Heberling, 678 A.2d 794, 795 (Pa. Super. 

elements of the crime were established beyond a reasonable doubt. Commonwealth v. Hagan, 

favorable to the Commonwealth, the trier of fact could reasonably have found that all of the 

favorable to the Commonwealth as the verdict winner and drawing the proper inferences 
7 

from the men's department and deposited them in a fitting room. N.T. 06/11/15, pp. 35-36, 39- 

79. The evidence also showed that Appellant and Mr. Bailey selected various articles of clothing 

Motorola walkie-talkie that he constantly held to his ear. See Exhibit C-1; N.T. 06/11/15, pp. 49- 

Appellant was likely in communication with the two (2) other men through the use of a two-way 

and the video surveillance tape played in its entirety confirm that over a forty ( 40) minute period, 

Mr. Alston, Appellant committed the crime of Retail Theft. Testimony presented by Mr. Dicicco 

The evidence introduced at trial was sufficient to show that together with Mr. Bailey and 

Super. 2012), citing Conunonwealth v. McCall, 911 A.2d 992, 996-97 (Pa. Super. 2006). 

conspirators in furtherance of the conspiracy." Commonwealth v. Knox, 50 A.3d 749, 755 (Pa. 

committing the underlying crime, he is still criminally liable for the actions of his cofurther detail below, it is well-settled that"[ e ]ven if [a] conspirator did not act as a principal in 

18 Pa.C.S.A. 306(c)(l)(ii). In addition, where there is a criminal conspiracy, as is discussed in 

offense, he ... aids or agrees or attempts to aid such other person in planning or committing it." 

commission of an offense if ... with the intent of promoting or facilitating the commission of the 

of the offense." 18 Pa.C.S.A. 306(b)(3). "A person is an accomplice of another person in the 

conduct of another person when ... he is an accomplice of such other person in the commission 

he is legally accountable, or both." 18 Pa.C.S.A. 306(a). "A person is legally accountable for the 

an offense if it is committed by his own conduct or by the conduct of another person for which 

ignores the accomplice liability and conspiracy which pertain to his action. "A person is guilty of 

the merchandise with the intent of depriving Macy's of the full retail value. However, Appellant 

Appellant's argument seems to suggest that he is not guilty because he did not take or carry away 

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. 
8 

conspiracy." Commonwealth v. Galindes, 786 A.2d I 004, IO 10 (Pa. Super. 2001 ), citing 

an unlawful act, (2) an agreement with a co-conspirator and (3) an overt act in furtherance of the 

following elements must be proven beyond a reasonable doubt: "(1) an intent to commit or aid in 

18 Pa.C.S.A. 903(a). In other words, in order to find Appellant guilty of conspiracy, the 

... with the intent of promoting or facilitating the commission of a crime, 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. 

of conspiracy if: 

Appellant has also challenged his conviction for Criminal Conspiracy. A person is guilty 

B. Criminal Conspiracy 

sufficient for a jury to find that Appellant committed Retail Theft. 

Macy's bag, and removing the clothing from the store without paying, the evidence was 

damaging articles by forcibly removing any security devices, placing the remains in a large 

As Appellant aided Mr. Bailey and Mr. Alston in moving clothing to the fitting room, 

46-48. 

items were now damaged after the security devices were forcibly removed. N.T. 06/11/15, pp. 

merchandise that Appellant and Mr. Bailey earlier selected from the displays, and many of the 

44. Once the bag was recovered by Mr. Dicicco, he observed that it contained much of the 

attempted to make his way to a white van that was rented by Appellant. N.T. 06/11/15, pp. 43- 

N.T. 06/11/15, pp. 40, 42-43. Mr. Alston removed the items from the store without paying and 

Appellant previously removed from an employee signage cart and placed in the fitting room. 

jackets that Appellant selected and carrying a large amount of clothing in a Macy's bag that 

40. Mr. Bailey and Mr. Alston then left the fitting room, with Mr. Alston wearing one of the Polo 
9 

Conunonwealth v. Spotz, 756 A.2d 1139, 1 I 62 (Pa. 2000). "Because it is difficult to prove an 

explicit or formal agreement to commit an unlawful act, such an act may be proved inferentially 

by circumstantial evidence, i.e., the relations, conduct or circumstances of the parties or overt 

actson the part of the co-conspirators." Knox, supra, 50 A.3d at 755 (internal citation omitted). 

The evidence in the light most favorable to the Commonwealth was sufficient to support 

the jury's finding that Appellant was involved in a conspiracy. The jury heard testimony 

establishing that Appellant constantly met with Mr. Bailey over a period of approximately forty 

(40) minutes where he aided in selecting clothing that was taken en masse to a fitting room. N.T. 

06/11/15, pp. 35-36, 39-40. The jury then heard testimony and witnessed video of Mr. Bailey and 

Mr. Alston flee the dressing room with merchandise in a large bag that Appellant had previously 

acquired and placed in that same fitting room area. See Exhibit C-1; N.T. 06/11/15, pp. 40, 42- 

43. When Mr. Alston was being apprehended by police outside of Macy's, he dropped the bag 

that was found to contain much of the clothing that Appellant had been seen on camera removing 

from Macy's displays. N.T. 06/11/15, pp. 46-47, 91. 

Additionally, Appellant was seen on surveillance talking into a walkie-talkie radio for 

near the entirety of his time in Macy's. N.T. 06/11/15, pp. 35-42. A similar walkie-talkie was 

recovered from Mr. Alston when he was apprehended fleeing the store. N.T. 06/11/15, p. 103. 

Additionally, while Mr. Alston attempted to escape from the police, he ran towards a van that 

was rented in Appellant's name. N.T. 06/11/15, pp. 113-14. Within this van, a duffle bag was 

recovered that contained Appellant's receipts, two walkie-talkies, and an opened pack of three 

(3) wire cutters where one was missing. N.T. 06/11/15, pp. 114-19. In a related discovery, a pair 

of wire-cutters was found on Mr. Alston's person along with the previously mentioned walkietalkie. N.T. 06/11/15, p. 103. When viewed in the aggregate, the evidence overwhelmingly 
10 

supports the notion that Appellant intended to aid in the theft from Macy's, agreed with both Mr. 

Bailey and Mr. Alston to so aid in this attempt, and committed overt acts in furtherance of the 

conspiracy by renting the van, helping to select the merchandise that was later stolen, and 

providing the bag used in the theft. As such, the evidence was sufficient to support that Appellant 

committed the crime of Criminal Conspiracy. 

C. Possession of an Instrument of Crime 

A person commits the crime of possession of an instnunent of crime when "he possesses 

any instrument of crime with intent to employ it criminally." 18 Pa.C.S.A 907. Specifically, an 

"instrument of crime" is defined as "anything specially made or specially adapted for criminal 

use' or 'anything used for criminal purposes and possessed by the actor under circumstances not 

manifestly appropriate for lawful uses it may have." Id. The Commonwealth must prove each 

element of the offense, "including criminal intent, beyond a reasonable doubt.. .. Although 

criminal intent can be inferred beyond a reasonable doubt from the surrounding circumstances, it 

cannot be inferred from mere possession." Commonwealth v. Foster, 651 A.2d 163, 165 (Pa. 

Super. 1994 ). 

There was sufficient evidence presented that Appellant possessed an instrument of crime 

by using the walkie-talkie to aid in the commission of the theft. For nearly the entire duration 

that Appellant was in the Macy's, he was speaking with someone on a walkie-talkie that he 

constantly held to his ear. N.T. 06/11/15, pp. 35-42. When Mr. Alston was apprehended after 

fleeing the Macy's with the stolen merchandise, a walkie-talkie was found on his person. N.T. 

06/11/15, p. 103. Moreover, when Appellant's van was located after the theft, two walkie-talkies 

were recovered from a duffle bag that also contained Appellant's receipts and pairs of wirecutters. N.T. 06/11/15, p. 114. Given the circumstantial evidence surrounding Appellant's time in 
11 

For the foregoing reasons, this Court perceives that the issues of which Appellant has 

complained in this appeal are without merit, and that this Court's October 28, 2015 Order 

CONCLUSION 

the Macy's, the jury could have found that Appellant was using the walkie-talkie to 

communicate with his co-conspirators during the commission of the theft. As such, the evidence 

was sufficient in the light most favorable to the Commonwealth to show that Appellant intended 

to use the walkie-talkie for a criminal purpose, namely to commit retail theft from Macy's. 

Furthermore, the evidence was likewise sufficient to show that Appellant possessed a pair 

of wire-cutters through being a member of the conspiracy. Specifically, Mr. Alston and Mr. 

Bailey were in the fitting room with the selected merchandise prior to Mr. Alston leaving the 

store with a bag of clothes that were later found to have ink damage and holes from where 

security tags were forcibly removed. N.T. 06/11/15, pp. 42-43, 47-48. When Mr. Alston was 

apprehended, a pair of wire-cutters were found on his person, and a pile of damaged security tags 

that appeared to have been physically cut off clothing using some sort of tool were located in the 

fitting room from where he left. N.T. 06111/15, pp. 45, 103. Considering these circumstances 

together, the evidence strongly points to Mr. Alston using the wire-cutters to remove the security 

devices attached to the clothing prior to leaving the store without paying for that clothing. As 

such, the wire-cutters were used for the criminal purpose of aiding in the commission of the 

theft, and it is clear that in so using them, Mr. Alston did so with the intent to commit that crime. 

As Appellant engaged in this conspiracy, he is similarly responsible for the offense as if he had 

brandished the wire-cutters himself. The evidence in light of the Commonwealth was therefore 

sufficient to find that Appellant possessed an instrument of crime. 
12 

LLACE H. BATEMAN, JR. J. 

BY THE COURT: 

respectfully request the Superior Court to affirm this Court's decision. 

Denying Post-Sentence Motions was supported by both the law and the record in this case. We 
13 

Matt Lannetti, Esquire 

Office of the District Attorney 

Bucks County Courthouse 

55 East Court Street 

Doylestown, PA 18901 

John J. Fioravanti, Jr., Esquire 

93 East Court Street 

Doylestown, PA 18901 

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