Com. v. Valentin, M.
2118 MDA 2015
| Pa. Super. Ct. | Oct 12, 2016Background
- Valentin, a Walmart employee, used self-checkout and scanned his employee discount card while his mother and stepfather bought a steam cleaner whose UPC had been switched to a cheaper item; asset protection reviewed video and identified multiple self-checkout transactions where Valentin failed to scan items or swapped tags.
- Asset protection manager Figard estimated at least $275.78 in merchandise was stolen across several dates in May–June 2014 based on video review.
- Commonwealth charged Valentin with one count of retail theft (18 Pa.C.S.A. § 3929(a)(1)); following a jury trial he was convicted and sentenced to 24 months’ probation on November 2, 2015.
- Valentin requested new counsel for appeal (trial counsel had also represented his mother); new counsel was appointed and Valentin filed a timely appeal and a Rule 1925(b) concise statement.
- On appeal Valentin argued (1) insufficient evidence for a § 3929(a)(1) taking (he contended his conduct fit only (a)(2) or (a)(4)), and (2) trial counsel was ineffective for joint representation of him and his mother. The Superior Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for retail theft under § 3929(a)(1) | Commonwealth: video and testimony showed Valentin took merchandise/under-rang and intended to deprive merchant; evidence supports conviction | Valentin: statute (a)(1) covers taking; his conduct was altering/under-ringing addressed by (a)(2)/(a)(4), so (a)(1) not proven | Waived (Rule 1925(b) insufficiently specific); alternatively, evidence supported conviction under (a)(1),(a)(2),(a)(4) and § 3902 allows proof by any theft theory; no relief |
| Ineffective assistance for joint representation of Valentin and his mother | Commonwealth: ineffective-claim review reserved for collateral relief; record lacks developed ineffectiveness evidence | Valentin: counsel’s joint representation prevented blaming his mother and prejudiced defense; seeks new trial | Not reviewed on direct appeal: claim must be raised in post-sentence motion/evidentiary hearing or collateral PCRA; claim dismissed without prejudice to PCRA review |
Key Cases Cited
- Commonwealth v. Castillo, 888 A.2d 775 (Pa. 2005) (appellate waiver for issues not preserved in a Rule 1925(b) statement)
- Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998) (general rule that issues not raised in Rule 1925(b) are waived)
- Commonwealth v. Manley, 985 A.2d 256 (Pa. Super. 2009) (Rule 1925(b) must specify which element of sufficiency is challenged)
- Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002) (ineffective-assistance claims generally reserved for collateral review)
- Commonwealth v. Holmes, 79 A.3d 562 (Pa. 2013) (exceptions allowing direct-review of record-based ineffectiveness claims require waiver of PCRA rights)
- Commonwealth v. Baker, 72 A.3d 652 (Pa. Super. 2013) (valid PCRA-waiver prerequisite for appellate review of ineffectiveness on direct appeal)
- Commonwealth v. Lewis, 445 A.2d 798 (Pa. Super. 1982) (charging document alleging one theft theory may permit evidence of another theft theory if defendant has fair notice)