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Commonwealth v. Norton

SUPERIOR COURT OF PENNSYLVANIA
Sep 7, 2016
No. J-S59035-16 (Pa. Super. Ct. Sep. 7, 2016)

Opinion

J-S59035-16 No. 3387 EDA 2015

09-07-2016

COMMONWEALTH OF PENNSYLVANIA v. MARK NORTON Appellant


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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.:

Former Justice specially assigned to the Superior Court.

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, criminal conspiracy, and possession of an instrument of crime. 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 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 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
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.
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 "get-away" 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.

Judgment of sentence affirmed.' Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/7/2016

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Summaries of

Commonwealth v. Norton

SUPERIOR COURT OF PENNSYLVANIA
Sep 7, 2016
No. J-S59035-16 (Pa. Super. Ct. Sep. 7, 2016)
Case details for

Commonwealth v. Norton

Case Details

Full title:COMMONWEALTH OF PENNSYLVANIA v. MARK NORTON Appellant

Court:SUPERIOR COURT OF PENNSYLVANIA

Date published: Sep 7, 2016

Citations

No. J-S59035-16 (Pa. Super. Ct. Sep. 7, 2016)