Com. v. Dunkle, R.

• Court: Superior Court of Pennsylvania
• Decided: February 25, 2020
• Docket: 839 WDA 2019
• Status: Unpublished

Opinion

J-S75024-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : RUBEN JAMES DUNKLE : : Appellant : No. 839 WDA 2019

Appeal from the Judgment of Sentence Entered April 24, 2019, in the Court of Common Pleas of Clarion County, Criminal Division at No(s): CP-16-CR-0000365-2018.

BEFORE: STABILE, J., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 25, 2020

Ruben James Dunkle appeals from the judgment of sentence imposed

following his conviction of three counts of retail theft.1 Additionally, Dunkle’s

court-appointed counsel, Erich R. Spessard, Esquire, has filed a petition to

withdraw as counsel and an accompanying brief pursuant to Anders v.

California, 386 U.S. 738, 744 (1967) (hereinafter the “Anders Brief”). We

grant counsel’s petition, and affirm Dunkle’s judgment of sentence.

The facts underlying the instant appeal are as follows. On three

consecutive days, October 4, 5, and 6 of 2017, Dunkle went to a Walmart

store and selected expensive Lego products from the toy department. He then

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* Retired Senior Judge assigned to the Superior Court.

1 See 18 Pa.C.S.A. 3929(a)(4). J-S75024-19

modified the bar codes on the products in a manner that caused them to

reflect a different Lego product with a much lower price. On each occasion,

he chose to use the self-checkout, where he could scan and pay for the items

without assistance from a store clerk. Walmart later detected an unexplained

reduction in inventory. It conducted an internal investigation which revealed

the underpayments by Dunkle. Police then charged Dunkle with three counts

of retail theft.

The matter proceeded to trial on March 29, 2019. The Commonwealth

presented the testimony of Walmart Asset Protection Officer Corey Becker,

who detailed his internal investigation following a report from the toy

department that several expensive Lego products were missing. Becker

introduced surveillance video footage from the three days in October of 2017.

The video surveillance on each day showed Dunkle follow the same routine.

He entered the store and went to the toy aisle. He left the toy aisle with

various expensive Lego products in his cart, then scanned and paid for these

items at the self-checkout.2 Becker also introduced the receipts from those

transactions, and explained that when Dunkle scanned the various expensive

Lego items at self-checkout, they all rang up as an entirely different, and

considerably less-expensive, Lego product namely, a Star Wars Lego Imperial

2 The parties stipulated that Dunkle is the individual depicted in the surveillance video footage. Additionally, Dunkle did not dispute the accuracy of the transaction receipts.

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Trooper Battle Pack. See N.T. Trial, 3/29/19, at 39-64. Becker introduced a

photograph of that particular item, which depicted a Lego product far smaller

than the larger and more expensive Lego products Dunkle was seen

purchasing in the videos. Id. at 43. The Star Wars Lego Imperial Trooper

Battle Pack was valued at $11.97 (hereinafter the “$11.97 Lego kit”).

On October 4, 2017, the video showed Dunkle purchase three items: a

Star Wars BB-8 Lego Kit (retail price $95.00); a Star Wars Heavy Assault

Walker Lego Kit (retail price $149.95); and a Millennial Falcon Lego Kit (retail

price $119.00). Id. at 40-42, 51-53. This purchase should have totaled

$363.96. Id. at 54. However, Becker introduced the transaction receipt which

showed that Dunkle purchased three $11.97 Lego kits, and paid a total of

$35.91 with his credit card. Id. at 44-46. The difference between the retail

value of the items Dunkle actually purchased on October 4, 2017, and the

price he paid was $328.05. Id. at 54.

On October 5, 2017, the video showed Dunkle purchase four items: two

Millennial Falcon Lego Kits (retail price $119.00 each), and two Star Wars BB-

8 Lego Kits (retail price $95.00 each). Id. at 56. This purchase should have

totaled $428. Id. at 59. However, Becker introduced the transaction receipt

which showed that Dunkle purchased four $11.97 Lego kits, and paid a total

of $47.88 with his credit card. Id. at 55. The difference between the retail

value of the items Dunkle actually purchased on October 5, 2017, and the

price he paid was $380.12. Id. at 59.

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Finally, on October 6, 2017, the video showed Dunkle purchase six

items. Id. at 61-62. According to Becker, Dunkle paid the full retail price for

the first three items. Id. at 61. The last three items that Dunkle purchased

were two Star Wars Heavy Assault Walker Lego Kits (retail price $149.95

each), and one Millennial Falcon Lego Kit (retail price $119.00). Id. at 61-62.

The retail value of these three items totaled $418.92. Id. at 63. However,

Becker introduced the transaction receipt which showed that the last three

items scanned were the $11.97 Lego kits. Id. at 62. Dunkle paid total of

$35.91 for these three items. Id. at 63. The difference between the retail

value of the last three items Dunkle actually purchased on October 6, 2017,

and the price he paid was $383.01. Id.

Becker testified that, to his knowledge, there was no type of malfunction

with the self-checkout system on any of the dates in question. Id. Nor was

he aware of any problem with the bar codes placed on the more expensive

Lego products by the manufacturer. Id. at 64. He indicated that the only

way that the more expensive Lego items could have scanned as less expensive

Lego items was by placing a small Lego box bar code on the large Lego boxes.

Id.

Becker conceded on cross-examination that the surveillance videos did

not specifically show Dunkle modifying the bar codes. Id. at 109. Nor did the

video footage show any visible modifications to the bar codes on the scanned

items. Id. at 112. However, Becker explained on redirect that no security

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camera was directly aimed at the toy aisle, such that you “have to look over

part of [another] aisle to see the Lego aisle.” Id. at 188-19.

At the conclusion of trial, a jury convicted Dunkle of three counts of

retail theft. On April 29, 2019, the trial court sentenced him to an aggregate

term of thirty to ninety months in prison. Dunkle filed a timely post-sentence

motion, which the trial court denied. Dunkle then filed a timely notice of

appeal. Both Dunkle and the trial court complied with Pa.R.A.P. 1925. In this

Court, Dunkle’s counsel has filed petition to withdraw as counsel and an

Anders brief. Dunkle did not file a response to either the petition or the

Anders brief.

“When presented with an Anders brief, this Court may not review the

merits of the underlying issues without first passing on the request to

withdraw.” Commonwealth v. Garang, 9 A.3d 237, 240 (Pa. Super. 2010)

(citation omitted). Pursuant to Anders, when counsel believes an appeal is

frivolous and wishes to withdraw from representation, counsel must do the

following:

(1) petition the court for leave to withdraw stating that after making a conscientious examination of the record, counsel has determined the appeal would be frivolous; (2) file a brief referring to any issues that might arguably support the appeal, but which does not resemble a no-merit letter; and (3) furnish a copy of the brief to the defendant and advise him of his right to retain new counsel, proceed pro se, or raise any additional points he deems worthy of this Court’s attention.

Commonwealth v. Edwards, 906 A.2d 1225, 1227 (Pa. Super. 2006)

(citation omitted). In Commonwealth v. Santiago, 978 A.2d 349 (Pa.

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2009), our Supreme Court addressed the second requirement of Anders, i.e.,

the contents of an Anders brief, and required that the brief:

(1) provide a summary of the procedural history and facts, with citations to the record;

(2) refer to anything in the record that counsel believes arguably supports the appeal;

(3) set forth counsel’s conclusion that the appeal is frivolous; and

(4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361. Once counsel has satisfied the Anders

requirements, it is then this Court’s responsibility “to conduct a simple review

of the record to ascertain if there appear on its face to be arguably meritorious

issues that counsel, intentionally or not, missed or misstated.”

Commonwealth v. Dempster, 187 A.3d 266, 272 (Pa. Super. 2018).

Here, counsel has substantially complied with each of the requirements

of Anders. Counsel indicates that he conscientiously examined the record

and determined that an appeal would be frivolous. Further, the Anders brief

substantially comports with the requirements set forth by the Supreme Court

of Pennsylvania in Santiago. Finally, the record includes a copy of the letter

that counsel sent to Dunkle, advising him of his right to proceed pro se or

retain alternate counsel and file additional claims, and stating counsel’s

intention to seek permission to withdraw. Accordingly, counsel has complied

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with the procedural requirements for withdrawing from representation, and

we will conduct an independent review to determine whether Dunkle’s appeal

is wholly frivolous.

In the Anders Brief, counsel raises the following issue for our review:

“Did sufficient evidence exist to prove the case beyond a reasonable doubt?”

Anders Brief at 4.

Our standard of review of sufficiency claims is as follows:

[W]e evaluate the record in the light most favorable to the verdict winner giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Evidence will be deemed sufficient to support the verdict when it establishes each material element of the crime charged and the commission thereof by the accused, beyond a reasonable doubt. Nevertheless, the Commonwealth need not establish guilt to a mathematical certainty. [T]he facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant’s innocence. Any doubt about the defendant’s guilt is to be resolved by the fact finder unless the evidence is so weak and inconclusive that, as a matter of law, no probability of fact can be drawn from the combined circumstances.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations

and quotation marks omitted). The Commonwealth may sustain its burden of

proof by means of wholly circumstantial evidence, and the jury, which passes

upon the weight and credibility of each witness’s testimony, is free to believe

all, part, or none of the evidence. Commonwealth v. Jacoby, 170 A.3d

1065, 1078 (Pa. 2017).

The crime of retail theft is established when the Commonwealth

demonstrates that “[a] person . . . under-rings with the intention of depriving

the merchant of the full retail value of the merchandise.” 18 Pa.C.S.A. §

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3929(a)(4). “Under-ring” is defined as “[t]o cause the cash register or other

sales recording device to reflect less than the full retail value of the

merchandise.” Id. at § 3929(f). The “full retail value” is defined as “[t]he

merchant’s stated or advertised price of the merchandise.” Id.

In discussing Dunkle’s sufficiency challenge, counsel states that the

claim has arguable merit because there was no direct video evidence showing

him altering the bar codes, or showing that the bar codes on the merchandise

he purchased had been modified. Counsel additionally points out that there

was no evidence presented at trial regarding the accuracy or inaccuracy of the

self-checkout scanners at the time Dunkle made his purchases. For these

reasons. Dunkle asserts that the Commonwealth’s evidence amounted to

speculation or conjecture as to the elements of causation and intent to under-

ring.

Nevertheless, counsel indicates his belief that Dunkle’s insufficiency

claim is frivolous because (1) video surveillance footage shows that the

specific, more expensive Lego products were in Dunkle’s possession; (2)

receipts of the three sales transactions unequivocally show that the items

Dunkle purchased were scanned as though they were entirely different, less

expensive items; (3) Dunkle paid a price far less than the full retail value for

each item; and (4) the inability to see Dunkle for a length of time on the video

footage for each incident provided enough circumstantial evidence that he

modified the bar codes while he was out of view of the security cameras.

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Based on our review of the certified record,3 we conclude that the

evidence presented at trial, when viewed in the light most favorable to the

Commonwealth, was sufficient to support the jury’s finding that all elements

of the offense of retail theft were proven beyond a reasonable doubt. The

Commonwealth presented the testimony of Becker, who introduced the

surveillance video footage that showed Dunkle purchasing expensive Lego

products on three consecutive days. The Commonwealth also presented the

receipts for those three transactions, which established that Dunkle paid for

entirely different, and far less expensive products. In fact, the receipts show

that all ten of the expensive Lego products that Dunkle purchased scanned as

the exact same cheaper product (i.e., the Star Wars Lego Imperial Trooper

Battle Pack, valued at $11.97).

Although there was no direct video footage showing Dunkle modifying

the bar codes, nor any video footage showing modified bar codes on the Lego

items, the Commonwealth was not required to produce such evidence in order

to secure a conviction. As noted above, the Commonwealth need not establish

Dunkle’s guilt to a mathematical certainty. Franklin, 69 A.3d at 722.

Moreover, the facts and circumstances established by the Commonwealth

3 While the Commonwealth’s Exhibit 6 (the DVD of the surveillance video footage) is included in the record, it is not viewable. While our inability to view the video footage is regrettable, it does not affect our disposition, as there is no dispute among the parties as to what the video footage shows and does not show, and the circumstantial evidence of Dunkle’s guilt is overwhelming.

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need not be absolutely incompatible with Dunkle’s innocence. Id. Instead,

the Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by means of wholly circumstantial evidence.

See Jacoby, 170 A.3d at 1078.

We conclude that the mass of circumstantial evidence produced by the

Commonwealth, when considered collectively, was legally sufficient to prove

beyond a reasonable doubt that Dunkle committed retail theft. Ample

evidence was presented for the jury to find that Dunkle took the ten expensive

Lego items and, when out of view of surveillance cameras, placed different

bar codes on those items so that they would reflect a cheaper product when

he scanned them himself. From this evidence, the jury could infer that Dunkle

acted with the intention of under-ringing the items to deprive Walmart of their

full retail value. Accordingly, we agree that Dunkle’s sufficiency challenge is,

in fact, wholly frivolous.

Finally, as required by Anders, we have independently reviewed the

record in order to determine whether there are any non-frivolous issues

present in this case. Our independent review of the record discloses no other

non-frivolous issues that Dunkle could raise that his counsel overlooked.

Dempster, supra. Having concluded that there are no meritorious issues,

we grant Attorney Spessard’s petition to withdraw as counsel, and affirm the

judgment of sentence.

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Petition to withdraw as counsel granted. Judgment of sentence

affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/25/2020

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