J-S71042-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAMETRIS GRAHAM 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1742 EDA 2018

Appeal from the Judgment of Sentence Entered February 14, 2018

In the Court of Common Pleas of Delaware County Criminal Division at 

No(s): CP-23-CR-0005703-2017

BEFORE: PANELLA, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.: FILED FEBRUARY 11, 2019

Appellant Dametris Graham appeals from the judgment of sentence 

imposed following his conviction for retail theft at a bench trial.1 Appellant 

claims the Commonwealth presented insufficient evidence to support the 

conviction, and the court illegally included restitution as part of his sentence. 

We affirm. 

The trial court summarized the relevant facts and procedural history of 

this appeal as follows:

The Commonwealth presented testimony from Mr. Stephen 

Trombetti . . . . Trombetti testified that he works for Acme 

Markets as a Loss Prevention Officer, covering multiple stores 

including the 24-hour Acme Market, located at 801 North 

Lansdowne Avenue, in Upper Darby, PA. As a Loss Prevention 

Officer, his duties include investigating external and internal theft. 

____________________________________________

1 18 Pa.C.S. § 3929(a)(1). 
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On August 9, 2017, between 8:00 a.m. and 9:00 a.m., Trombetti 

was called to the Acme Market located at 801 North Lansdowne 

Avenue in order to investigate an overnight theft. When he 

responded to Acme, Trombetti viewed the video surveillance, 

which covers most of the store. Trombetti testified that Acme has 

two separate entrances consisting of an entrance door and exit 

door. Although Acme is open twenty-four hours, it is their practice 

to lock one entrance/exit to the store around 9:00 p.m. This 

leaves customers to enter and exit on only one side of the building. 

While watching the surveillance video, Trombetti observed a black 

male with a shopping cart going down aisles of the store that 

contain Dove products and Tide products; the male on the video 

was loading his cart with Dove soaps and Tide Pods. From the 

angle of the surveillance video, Trombetti could only see the 

male’s head. From the video surveillance, Trombetti could tell 

that after the male walked down the aisles, the shelves were bare 

which alerted him as to what items were specifically targeted 

because it is not common practice for the shelves to be bare; 

rather, the shelves are usually always full as part of the restocking process. 

Trombetti also viewed the video surveillance of the exit and 

entrances, both the accessible side and the previously locked side. 

Trombetti saw the same male approach the side that was locked 

to the public; the male proceeded to unlock the door from the 

inside of the store and walk out into the vestibule, where he then 

pried open the sliding doors that lead from the vestibule to the 

outside, looked around for a couple of minutes, and then 

completely exited the store with his cart full of unbagged 

merchandise. Trombetti told the [c]ourt that if the merchandise 

had gone through a register line, as it should have, it would have 

certainly been bagged. 

At trial, the Commonwealth marked the video surveillance as C1. While the video was played, Trombetti pointed out to the 

[c]ourt what was occurring on the video; the timeframe was 

stamped as 3:09 a.m. Trombetti pointed out where the male can 

be seen physically opening the locked door (which is typically 

automatic) leading into the vestibule and then prying open the 

door from the vestibule to the outside of the store and pushing his 

full cart of unbagged Dove and Tide items through the doors and 

into the outside. The man then comes back and physically closes 

the doors that he pried open. 
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As part of his investigation, Trombetti also reviewed the register 

logs and found that nothing of that amount or value was rung up 

at any of the registers during that time of the early morning. 

Based upon his eleven years of experience at Acme, Trombetti 

told the [c]ourt that it would not have been possible within the 

timeframe that the male was in the store to enter and have all of 

the items in his cart rung up at register. In addition, based upon 

the empty shelves and his years of experience, Trombetti 

estimated that the value of the stolen merchandise was 

approximately $1,500.00. 

Trombetti testified that the man on the video was not an employee 

of Acme and did not have permission from anyone at Acme to 

enter the store and remove the items. Based upon his 

investigation, Trombetti called the police, who later informed him 

that they [identified] the subject as Appellant. 

The attorney for the Commonwealth and attorney for Appellant 

agreed as follows:

If called to testify, Officer Redheffer from the Upper Darby 

Police Department would have testified that he responded, 

gathered the information and made an initial report. 

Detective Lydon of the Upper Darby Police Department was 

the initial investigator and . . . they put out still frames of 

the video and tried to gather information. Information came 

in from a separate incident where a license plate was 

recorded. That license plate belonged to an individual 

female and it gave an address. The address also had a 

known occupant, Appellant. Detective Lydon then took a 

photo, had a photo of Appellant, and compared it to the 

video and was able to [identify] Appellant as the man in the 

surveillance video. If called to testify, he would state on

record that this is how he made the [identification] of 

Appellant from this incident.

Trial Ct. Op., 7/30/18, at 1-4 (record citations omitted). 

On October 18, 2017, the Commonwealth filed a criminal information, 

charging Appellant with retail theft. The court conducted a bench trial on 
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January 10, 2018, finding Appellant guilty of felony retail theft.2 On February 

14, 2018, the court sentenced Appellant to one to two years’ imprisonment

and restitution in the amount of $1,500. 

On February 23, 2018, Appellant timely filed a post-sentence motion

challenging the weight and sufficiency of the evidence. Following a hearing, 

the court denied Appellant’s post-sentence motion on May 1, 2018. 

On May 30, 2018, Appellant timely filed a notice of appeal. On June 4, 

2018, the court ordered Appellant to file a Pa.R.A.P. 1925(b) statement, which 

Appellant timely filed. The trial court filed a responsive Pa.R.A.P. 1925(a)

opinion, concluding Appellant was not entitled to relief. 

Appellant now presents two issues for our review:

1) Whether the evidence is legally insufficient to sustain the 

conviction for retail theft since Appellant was not identified as the 

offender beyond a reasonable doubt, where there was no in-court 

identification and video of the purported incident was not admitted 

into evidence[.] 

2) Whether the restitution order is illegal and must be vacated 

since the amount imposed is unsupported by the record[.] 

Appellant’s Brief at 5. 

In his first issue, Appellant contends that the Commonwealth’s lone 

witness, Trombetti, was not present at the supermarket at the time of the 

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2 Retail theft is graded as a third degree felony when it is a third or subsequent 

offense or the amount involved exceeds $1,000. 18 Pa.C.S. § 3929(b)(1)(iv), 

(v). Here, Appellant was convicted of retail theft on three prior occasions, and 

the amount at issue for the instant offense exceeded $1,000. Criminal 

Information, 10/18/17, at 1.
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theft, but viewed the incident on the surveillance video after it occurred. Id.

at 12. Appellant maintains Trombetti could not identify the individual depicted 

in the surveillance video, and his testimony failed to establish that Appellant 

committed the offense. Id. Appellant acknowledges that the trial court also 

viewed the surveillance video and relied on it to identify Appellant as the 

perpetrator. Id. Nevertheless, Appellant asserts that the court’s conclusion 

that Appellant was the same man in the video was legally insufficient. Id. at 

13. Further, Appellant claims that the court should not have relied on the 

video, because no party moved for its admission into evidence. Id. 

Appellant insists that his trial counsel’s defense strategy was to argue 

that Appellant was not the same individual depicted in the video. Id. at 14. 

Regarding the parties’ stipulation about testimony from Detective Lydon, 

Appellant emphasizes that the detective would have explained how he 

compared a photograph to the surveillance video to conclude that Appellant 

was a suspect. Id. Because the parties merely intended for the stipulation 

to show how the police established Appellant as a suspect, Appellant argues 

that the court should not have utilized it as a means to defeat Appellant’s 

misidentification defense. Id. 

We apply the following standard when reviewing a sufficiency claim:

Because a determination of evidentiary sufficiency presents a 

question of law, our standard of review is de novo and our scope 

of review is plenary. In reviewing the sufficiency of the evidence, 

we must determine whether the evidence admitted at trial and all 

reasonable inferences drawn therefrom, viewed in the light most 

favorable to the Commonwealth as verdict winner, were sufficient 
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to prove every element of the offense beyond a reasonable doubt. 

The facts and circumstances established by the Commonwealth 

need not preclude every possibility of innocence. It is within the 

province of the fact-finder to determine the weight to be accorded 

to each witness’s testimony and to believe all, part, or none of the 

evidence. The Commonwealth may sustain its burden of proving 

every element of the crime by means of wholly circumstantial 

evidence. Moreover, as an appellate court, we may not re-weigh 

the evidence and substitute our judgment for that of the factfinder. 

Commonwealth v. Palmer, 192 A.3d 85, 89 (Pa. Super. 2018) (brackets 

and citation omitted). “Moreover, in applying the above test, the entire record 

must be evaluated and all evidence actually received must be considered.” 

Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super. 2018) (citation 

omitted); see also Commonwealth v. Lovette, 450 A.2d 975 (Pa. 1982) 

(explaining that a sufficiency claim will not be assessed on a diminished 

record, but rather on the evidence actually presented to the finder of fact).

A person is guilty of retail theft if he “takes possession of . . . any 

merchandise . . . offered for sale by any store . . . 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). 

Instantly, the Commonwealth presented Trombetti, who testified about 

his investigation into the theft at the supermarket. As part of his investigation, 

Trombetti reviewed surveillance video, including footage of Appellant loading 

a shopping cart with soap and laundry detergent. The video showed the 

individual identified as Appellant forcing open a locked door and departing the 
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supermarket with a cart full of merchandise that was not paid for at any of 

the cashiers’ counters. 

During Trombetti’s testimony, the Commonwealth played the 

surveillance video. The parties also stipulated that, if called to testify, Upper 

Darby Police would explain how they utilized the video to identify Appellant as 

a suspect. Significantly, the court viewed the video and determined that 

Appellant committed the theft based on Appellant’s “facial features, height 

and mannerisms.” Trial Ct. Op. at 4. Therefore, it was within the court’s 

province as fact-finder to draw its own conclusions after viewing the 

surveillance video, and this evidence alone could establish Appellant’s identity 

as the perpetrator. See Palmer, 192 A.3d at 89; see also Commonwealth 

v. Childs, 63 A.3d 323 (Pa. Super. 2013) (reiterating that video surveillance 

footage was sufficient evidence for the fact finder to identify defendant). 

To the extent that Appellant complains that the parties did not move for 

admission of the video into evidence, the prosecutor marked the compact disc

containing the video footage as exhibit C-1. The prosecutor indicated that 

defense counsel “agrees that this video is the evidence that we would bring in 

today.” N.T., 1/10/18, at 10. Appellant’s trial counsel confirmed that he had 

received a copy of the video and raised no objection before the prosecutor 

played the video. Although the court did not formally admit the video into 

evidence, the parties regarded the video as admissible for purposes of trial. 

Under these circumstances, we deem the video part of the entire record that 

we must evaluate. See Thomas, 194 A.3d at 166. Based upon the foregoing, 
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we conclude that sufficient evidence supported Appellant’s conviction for retail 

theft. 

In his second issue, Appellant argues that the restitution amount in his 

case is excessive, speculative, unsupported by the record, and illegal, because 

Trombetti provided a mere estimate regarding the value of the items removed 

from the supermarket. Appellant’s Brief at 16. Appellant emphasizes that the 

Commonwealth did not submit logs to establish the prices of the stolen goods. 

Id. Further, Appellant claims that the quantities of stolen goods remained 

unknown, because the supermarket conducted inventory on a sporadic basis. 

Id. Absent more, Appellant insists there was no way for the court to 

determine whether $1,500 worth of product could even fit into a single 

shopping cart.3 Id.

Initially, we note that:

[i]n the context of criminal proceedings, an order of restitution is 

not simply an award of damages, but, rather, a sentence. An 

appeal from an order of restitution based upon a claim that a 

restitution order is unsupported by the record challenges the 

legality, rather than the discretionary aspects, of sentencing. The 

determination as to whether the trial court imposed an illegal 

sentence is a question of law; our standard of review in cases 

dealing with questions of law is plenary. 

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3 Appellant did not object to the amount of restitution at the sentencing 

hearing or in his post-sentence motion. Nevertheless, Appellant’s claim that 

the restitution order is unsupported by the record challenges the legality of 

his sentence and cannot be waived. Commonwealth v. Stradley, 50 A.3d 

769, 772 (Pa. Super. 2012). 
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Commonwealth v. Holmes, 155 A.3d 69, 78 (Pa. Super. 2017) (en banc) 

(citation omitted).

“It is the Commonwealth’s burden of proving its entitlement to 

restitution.” Commonwealth v. Atanasio, 997 A.2d 1181, 1183 (Pa. Super. 

2010) (citation omitted). 

When fashioning an order of restitution, the . . . court must ensure 

that the record contains the factual basis for the appropriate 

amount of restitution. The dollar value of the injury suffered by 

the victim as a result of the crime assists the court in calculating 

the appropriate amount of restitution. The amount of the 

restitution award may not be excessive or speculative. It is wellsettled that [a]lthough it is mandatory under section 1106(c) to 

award full restitution, it is still necessary that the amount of the 

full restitution be determined under the adversarial system with 

considerations of due process. 

Id. (citations and quotation marks omitted). 

Instantly, Trombetti testified that Appellant loaded his shopping cart 

with Dove soap and Tide Pods. The surveillance video revealed “the shelves 

were bare” where these items would normally be found. N.T. at 9. Trombetti 

confirmed that the shelves are usually full during business hours. Based on 

his eleven years of experience working for Acme, and the amount of product

that would normally occupy the shelves, Trombetti estimated that Appellant 

removed $1,500 worth of product from the supermarket. At sentencing, the 

prosecutor requested $1,500 in restitution, which the court included in its 

sentencing order. Because Trombetti’s trial testimony provided a sufficient 

factual basis for the restitution amount, Appellant is not entitled to relief on 

this claim. See Atanasio, 997 A.2d at 1183. 
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/11/19