In the Int. of: A.G.-M., Appeal of: A.G.-M.

• Court: Superior Court of Pennsylvania
• Decided: August 15, 2024
• Docket: 742 EDA 2023
• Status: Unpublished

Opinion

J-S06043-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

IN THE INTEREST OF: A.G.-M., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: A.G.-M., MINOR : : : : : No. 742 EDA 2023

Appeal from the Dispositional Order Entered February 24, 2023 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-JV-0000081-2023

BEFORE: DUBOW, J., McLAUGHLIN, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED AUGUST 15 2024

A.G.-M. appeals from the dispositional order entered after the juvenile

court adjudicated him delinquent for acts constituting possession of a firearm

with an altered manufacturer’s number, possession of a firearm by a minor,

and possession of a weapon on school property.1 We affirm.

We summarize the factual and procedural background of this appeal as

follows. On February 1, 2023, at approximately 1:00 p.m., Jay Melber

(“Officer Melber”), a school resource officer at Louis E. Dieruff High School,

received a report of a student possibly carrying a firearm inside the school.

See N.T., 2/23/23, at 28, 74. When Officer Melber arrived at the reported

location, other security officers removed a student, L.S., from a classroom.

See id. at 29. Officer Melber took L.S. to a nearby office, and L.S. admitted

he had a gun. See id. Officer Melber recovered from L.S.’s pocket a loaded ____________________________________________

1 See 18 Pa.C.S.A. §§ 6110.2, 6110.1(a), 912. J-S06043-24

9-mm pistol, which had its serial number filed off. See id. at 29-31. L.S. was

also carrying a black and white backpack (“the backpack”) at the time. See

id. at 36, 38.2 Officer Melber searched the backpack and, inside, found a 9-

mm bullet and school identifications belonging to A.G.-M. See id. at 39. L.S.

stated the gun was not his and he got it from a backpack in the vice principal’s

office. See id. at 101-02, 108.

Officer Melber learned that earlier that day, at approximately 11:50

a.m., a teacher had sent A.G.-M. to a vice principal’s office because he failed

to display or show his school identification. See id. at 50.3 Although A.G.-M.

went to and remained inside the office, the vice principal was in the cafeteria

at the time. See id. at 63, 85-86. Officer Melber also reviewed and collected

security camera videos, which showed a security officer escorting A.G.-M.,

who was carrying the backpack at the time, to the vice principal’s office at

approximately 11:54 a.m. See id. at 50-51, 62-63.4 Videos from around

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2 There was no dispute that the backpack belonged to A.G.-M. See N.T., 2/23/23, at 112-13 (A.G.-M.’s mother identifying the backpack as A.G.-M.’s).

3 Officer Melber explained that students must display their identifications while

at school. See N.T., 2/23/23, at 42. If a student does not display or provide a school identification upon request by a teacher or staff, the student may be sent to a principal’s office and searched. See id. at 43-44.

4 Earlier portions of the video evidence apparently showed A.G.-M. entering

the school with the backpack in the morning, at approximately 8:24 a.m. and interacting with L.S. See N.T., 2/23/23, at 60-61. There were no videos showing A.G.-M., the backpack, or L.S. after 8:25 a.m. until approximately 11:54 a.m. See id. at 79-80. We note the parties referenced the time-stamps on videos when discussing the chronology of events. See id. at 54-55.

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12:00 p.m. showed A.G.-M.’s girlfriend approach and interact with L.S. in the

hallway, after which they, and another girl, went to the office where A.G.-M.

had been left. See id. at 65-66. Videos also showed L.S. go into the office

without a backpack and then leave the office with the backpack. See id. at

66-70, 73.5

The Commonwealth filed a petition alleging A.G.-M. committed the

above-mentioned delinquent acts by possessing the firearm at school. The

juvenile court held a hearing at which Officer Melber testified to the evidence

summarized above, and the Commonwealth played the video evidence. L.S.

testified that he was “high” that day and got the gun from a backpack he stole

from the vice principal’s office while looking for marijuana. See N.T., 2/23/23,

at 95-97, 106.6 A.G.-M.’s mother testified that she looked in the backpack

right before A.G.-M. went to school and the backpack did not contain a gun.

See id. at 114. A.G.-M.’s stepfather testified he drove A.G.-M. to school that

day and saw A.G.-M. go directly from the car and into the school. See id. at

122-23. At the conclusion of the hearing, the court found that A.G.-M.

possessed the gun, see id. at 133, and proceeded to a dispositional hearing

that same day. ____________________________________________

5 A.G.-M. did not include the video evidence as part of the record in this appeal. However, Officer Melber testified as to the contents of the videos, and the contents of the videos are not in dispute.

6 L.S. stated that he did not know who owned the backpack. See N.T., 2/23/23, at 95-96. He also admitted the Commonwealth filed a petition alleging his delinquency for his role in the incident and was awaiting a hearing. See id. at 102-03.

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On February 24, 2023, the juvenile court entered the order of

adjudication and disposition that placed A.G.-M. in a secure residential facility.

A.G.-M. timely appealed, and the trial court issued a scheduling order, which

inter alia, directed A.G.-M. to file and serve a Pa.R.A.P. 1925(b) statement.

A.G.-M. did not comply, and the court authored an opinion suggesting that we

dismiss the appeal for A.G.-M.’s noncompliance with Rule 1925. See Juvenile

Court Opinion, 6/5/23, at 2 (citing, inter alia, Commonwealth v. Lord, 719

A.2d 306 (Pa. 1998)).

A.G.-M. did not address his noncompliance with Rule 1925, but

subsequently filed an appellant’s brief raising the following issue:

Whether or not the evidence as presented at the time of [the ]adjudication hearing was sufficient as a matter of law to support the adjudication when there was no evidence introduced that [A.G.-M.] ever possessed the firearm at the school?

A.G.-M.’s Brief at 4.

Before addressing the merits of this appeal, we consider the juvenile

court’s suggestion that A.G.-M.’s noncompliance with Rule 1925 requires a

finding of waiver. Here, the court’s order for a Rule 1925(b) statement was

captioned and docketed as a “scheduling order,” and the order directed the

clerk of the court serve A.G.-M. and his counsel. See Order, 3/30/23, at 2.

However, neither the order nor the docket contains a notation of service of

the order on any party. Absent any indication in the record that the court’s

order for a Rule 1925(b) statement had been served on A.G.-M.’s counsel, we

conclude that there was a breakdown in court operations excusing A.G.-M.’s

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noncompliance with Rule 1925(b). Cf. In re L.M., 923 A.2d 505, 509-10 (Pa.

Super. 2007) (noting, in a termination of parental rights appeal, that strict

application of Lord necessitates strict interpretation of the rules governing

notice of an order for a Rule 1925(b) statement); cf. also Pa.R.J.C.P. 166-

167, (outlining the responsibilities of the clerk of the juvenile courts with

respect to maintaining the record and serving and noting service of orders on

the docket). Thus, we decline to find waiver due to A.G.-M.’s failure to file a

Rule 1925(b) statement.

Although we do not find waiver, we note that this Court may remand for

a determination of whether the order for a Rule 1925(b) statement had been

served or for the filing of Rule 1925(b) statement nunc pro tunc and a

responsive Rule 1925(a) opinion. Cf. Commonwealth v. Chester, 163 A.3d

470, 472 n.2 (Pa. Super. 2017). However, we conclude a remand is

unnecessary to review the narrow legal issue presented and the relatively

straight-forward record evidence involved in this appeal. Accordingly, we

consider the merits of A.G.-M.’s argument that the evidence was insufficient

to sustain the adjudication of delinquency . See id.

A challenge to the sufficiency of the evidence presents a pure question

of law. See In re D.S., 39 A.3d 968, 973 (Pa. 2012). This Court’s standard

of review is de novo, and our scope of review is plenary. See Interest of

E.L.W., 273 A.3d 1202, 1205 (Pa. Super. 2022). Furthermore, it is well

settled that:

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[w]hen a juvenile is charged with an act that would constitute a crime if committed by an adult, the Commonwealth must establish the elements of the crime by proof beyond a reasonable doubt. When considering a challenge to the sufficiency of the evidence following an adjudication of delinquency, we must review the entire record and view the evidence in the light most favorable to the Commonwealth. In determining whether the Commonwealth presented sufficient evidence to meet its burden of proof, the test to be applied is whether, viewing the evidence in the light most favorable to the Commonwealth and drawing all reasonable inferences therefrom, there is sufficient evidence to find every element of the crime charged. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by wholly circumstantial evidence.

The facts and circumstances established by the Commonwealth need not be absolutely incompatible with a [juvenile’s] innocence. Questions of doubt are for the hearing judge, unless the evidence is so weak that, as a matter of law, no probability of fact can be drawn from the combined circumstances established by the Commonwealth. The finder of fact is free to believe some, all, or none of the evidence presented.

Id. (internal citation omitted).

Here, the juvenile court adjudicated A.G.-M. delinquent based on its

finding that A.G.-M. possessed the firearm, which had been in his backpack,

and which Officer Melber later recovered from L.S. As this Court has stated:

Where a [juvenile] is not in actual possession of the prohibited items, the Commonwealth must establish that [he] had constructive possession to support the conviction. Constructive possession is a legal fiction, a pragmatic construct to deal with the realities of criminal law enforcement. We have defined constructive possession as conscious dominion, meaning that the [juvenile] has the power to control the contraband and the intent to exercise that control. To aid application, we have held that constructive possession may be established by the totality of the circumstances.

It is well established that, as with any other element of a crime, constructive possession may be proven by circumstantial evidence. In other words, the Commonwealth must establish

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facts from which the trier of fact can reasonably infer that the defendant exercised dominion and control over the contraband at issue. . . . [K]nowledge of the existence and location of the contraband is a necessary prerequisite to proving the [juvenile’s] intent to control, and, thus, his constructive possession.

If the only inference that the fact finder can make from the facts is a suspicion of possession, the Commonwealth has failed to prove constructive possession. It is well settled that facts giving rise to mere association, suspicion or conjecture, will not make out a case of constructive possession.

Commonwealth v. Wright, 255 A.3d 542, 553 (Pa. Super. 2021) (internal

citations, quotation marks, and brackets omitted).

A.G.-M. argues the Commonwealth failed to establish that he possessed

the firearm because: there was no direct evidence the gun was in his backpack

when he was carrying it; the Commonwealth’s case relied on circumstantial

evidence; and L.S. was high and scared when he told Officer Melber that he

took the gun from the backpack. See A.G.-M.’s Brief at 7-8. Additionally,

A.G.-M. notes that the Commonwealth failed to show where A.G.-M., the

backpack, and L.S. were in the three three hours after A.G.-M. arrived at

school but before A.G.-M. went to the vice principal’s office. See id. at 8.

Following our review, we conclude A.G.-M.’s arguments lack merit. Not

only do A.G.-M.’s arguments disregard our standard of review, which requires

that we view the evidence in a light most favorable to the Commonwealth,

see E.L.W., 273 A.3d at 1205, but they also ignore the precepts that

circumstantial evidence alone is sufficient to find constructive possession and

support an adjudication of delinquency, see id.; accord Wright, 255 A.3d at

553.

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Furthermore, when properly viewed in light of our standard of review,

the record contains reasoned basis to sustain the juvenile court’s finding that

A.G.-M. possessed or constructively possessed the firearm. L.S. testified he

found the gun in the backpack he took from the vice principal’s office, see

N.T., 2/23/23, at 95-97, and the juvenile court, as the finder of fact, was

entitled to credit that evidence, see E.L.W., 273 A.3d at 1205 (stating that

the finder of fact is free to believe some, all, or none of the evidence

presented). The court further viewed evidence showing A.G.-M. enter the

office with the backpack, L.S. then enter the office shortly thereafter without

a backpack, only to exit moments later with the backpack. See N.T., 2/23/23,

at 50-51, 62-63. Additional circumstantial evidence included the videos which

showed that after A.G.-M. went to the vice principal’s office and shortly before

L.S. went to the office, A.G.-M.’s girlfriend approached and interacted with

L.S. in the hallway while using her phone, after which they, and another girl,

went to the office. See id. at 65-70. Such evidence provided a reasoned

basis for the court to infer that A.G.-M. had arranged for someone to take the

gun and bookbag out of the office. Cf. id. at 131-32.7 Lastly, there is no

dispute that when Officer Melber interviewed L.S. was carrying the bookbag

7 We add that the juvenile court had reasoned basis to infer that the A.G.-M.

had the gun in his backpack and knew it was there, when he elected to go to the vice principal’s office rather than retrieve his identification from his backpack and show it to the teacher who requested it. See N.T., 2/23/23, at 87-88.

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which contained a loose 9-mm bullet and A.G.-M.’s identifications. See id. at

36-39

For these reasons, we conclude that A.G.-M.’s arguments do not merit

relief, and a remand due A.G.-M.’s failure to file a Rule 1925(b) statement

would be an inefficient use of judicial resources. Cf. Chester, 163 A.3d at

472 n.2 (declining to remand in the interest of judicial economy);

Commonwealth v. Hart, 911 A.2d 939, 942 (Pa. Super. 2006) (noting that

“the law does not require the performance of a futile act”). Accordingly, we

affirm the dispositional order on the merits of this appeal.

Order affirmed.

Date: 8/15/2024

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