J-A25005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: K.B., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: K.B. : : : : : No. 202 EDA 2018
Appeal from the Dispositional Order December 27, 2017 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-JV-0002352-2017
BEFORE: PANELLA, J., DUBOW, J., and KUNSELMAN, J.
MEMORANDUM BY DUBOW, J.: FILED DECEMBER 3, 2018
Appellant, K.B., appeals from the December 27, 2017 Dispositional
Order entered in the Philadelphia Court of Common Pleas, which ordered
Appellant to be committed and placed forthwith at The Glen Mills School
residential facility (“Glen Mills”) after the juvenile court adjudicated him
delinquent for Robbery, Conspiracy, and Possessing an Instrument of Crime.
After careful review, we find that the juvenile court did not abuse its discretion
regarding all issues except the weight of the evidence issue, for which we
remand with instructions.
The relevant factual and procedural history, as gleaned from the juvenile
court’s Pa.R.A.P. 1925(a) Opinion, are as follows. On June 30, 2017, at
approximately 10:30 PM, then-17-year-old J.V. (“Victim”) went for a jog in his
neighborhood. During his jog, he saw three young men walking around
together, including then-15-year-old Appellant, M.L., and Z, a person he J-A25005-18
recognized from the neighborhood. The Victim was able to observe their
faces. Approximately ten minutes later, he saw the three males crouched
behind a car, periodically standing up and then crouching back down again.
As the Victim jogged past, the three young men stepped out from behind the
car and stopped the Victim. Appellant and M.L. were both wearing ski masks.
Appellant held a gun to the Victim’s head and ordered the Victim to hand over
everything he had. The Victim handed over his cellphone. Appellant, M.L.,
and Z fled the scene.
The Victim immediately went home and called the police to report the
robbery. Police Officer James Alderfer responded to the call and the Victim
gave Officer Alderfer a detailed description of the three young males. The
Victim described all of the offenders as male, fifteen to seventeen years of
age, medium height, and skinny. The Victim stated that the gunman was
wearing a black sweatshirt with a logo on the front, black pants, and a grey
mask.
Police Officer Colin Goshert observed three males that matched the
description standing on the side of the street within a few blocks of the scene
of the reported robbery. Officer Goshert approached the males; one began to
run and the other two began to walk in a different direction. Officer Goshert
stopped the two males who were walking and detained them; the males were
later identified as Appellant and M.L. Officer Goshert also recovered a black
hooded sweatshirt with a logo on the front and a dark grey knitted ski mask
from the ground nearby.
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Officer Alderfer transported the Victim to the area where police detained
Appellant and M.L. The Victim identified Appellant and M.L. as two of the
three males who just robbed him at gunpoint. The Victim specifically identified
Appellant as the gunman. At that time, the Victim identified the sweatshirt
and mask recovered by police as the clothing that Appellant wore during the
robbery.
On July 1, 2017, the police arrested Appellant. The Commonwealth
charged him as an adult with Robbery, Conspiracy, Violations of the Uniform
Firearms Act, Possessing an Instrument of Crime, and related charges.
On November 1, 2017, the lower court transferred Appellant’s case to
the Juvenile Delinquent Division of Family Court by agreement of the parties
pursuant to 42 Pa.C.S. § 6322.1
On December 7, 2017, the juvenile court held an adjudicatory hearing
where the Victim testified and positively identified Appellant as the gunman
during the robbery. The juvenile court found Appellant guilty of Robbery,
Conspiracy, and Possessing an Instrument of Crime. On the same date, the
juvenile court adjudicated Appellant delinquent and deferred disposition. On
December 27, 2017, the juvenile court committed Appellant to Glen Mills.
Appellant timely appealed. Both Appellant and the juvenile court
complied with Pa.R.A.P 1925.
____________________________________________
1 If the defendant is a child in a criminal proceeding, Section 6322 permits a court to transfer the case to a juvenile division or juvenile court if certain requirements are met. See 42 Pa.C.S. § 6322(a).
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Appellant raises the following issues on appeal:
1. Was not the evidence of [A]ppellant’s identification insufficient to sustain a verdict of guilt for any of the charges in violation of [A]ppellant’s state and federal constitutional rights, where the identification was based on a general description of height and clothing, [A]ppellant did not match the description, all three perpetrators were wearing masks covering all but their eyes, and [A]ppellant presented evidence of good character?
2. Was not the verdict against the weight of the evidence where the identification testimony was so inherently contradictory and unreliable inasmuch as all three alleged perpetrators were wearing masks covering all but their eyes, the complainant provided contradictory testimony regarding who was wearing what shirt and mask, and he had limited opportunity to observe the perpetrators, such that the juvenile court’s adjudication of guilt was manifestly unreasonable and a new trial should be granted in the interest of justice?
3. Did not the juvenile court err and abuse its discretion in adjudicating [A]ppellant delinquent where the court failed to hear evidence as to whether [A]ppellant was in need of treatment, rehabilitation, or supervision, and as such, the finding of delinquency was based on insufficient evidence and not proven beyond a reasonable doubt?
4. Did not the juvenile court err and abuse its discretion by committing [A]ppellant to an out-of-home placement facility inasmuch as it failed to set forth adequate reasons as to why commitment was the least restrictive alternative available as required by the Juvenile Act?
Appellant’s Brief at 4-5.
Our standard of review of dispositional orders in juvenile proceedings is
well settled. The Juvenile Act grants broad discretion to juvenile courts when
determining an appropriate disposition. In re C.A.G., 89 A.3d 704, 709 (Pa.
Super. 2014). We will not disturb the juvenile court’s disposition absent a
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manifest abuse of discretion. In Interest of J.G., 145 A.3d 1179, 1184 (Pa.
Super. 2016).
Appellant first challenges the sufficiency of the identification evidence,
averring that the evidence presented at trial was insufficient to establish
beyond a reasonable doubt that Appellant was the person who committed the
crimes. Appellant’s Brief at 18.
When we review a challenge to the sufficiency of the evidence
supporting an adjudication of delinquency, we must determine “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.” In re V.C., 66 A.3d 341, 349 (Pa.
Super. 2013) (citation omitted). The Commonwealth must establish each
element of the crimes charged by proof beyond a reasonable doubt and may
sustain its burden by wholly circumstantial evidence. Id. “In addition to
proving the statutory elements of the crimes charged beyond a reasonable
doubt, the Commonwealth must also establish the identity of the defendant
as the perpetrator of the crimes.” Commonwealth v. Brooks, 7 A.3d 852,
857 (Pa. Super. 2010). “Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak and inconclusive
that as a matter of law no probability of fact may be drawn from the combined
circumstances.” In re K.A.T., Jr., 69 A.3d 691, 696 (Pa. Super. 2013)
(citation omitted). Moreover, “[t]he fact-finder is free to believe all, part, or
none of the evidence presented at trial.” Id. (citation omitted).
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Notably, this Court has consistently held that a victim’s in-court
testimony, which identifies a defendant as the perpetrator of a crime, is by
itself sufficient to establish the identity element of that crime.
Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa. Super. 2018). Claims
that identification evidence are “unconvincing” or “vague” are directed entirely
to the credibility of a victim’s testimony and, thus, challenge the weight rather
than the sufficiency of the evidence. Commonwealth v. Kinney, 157 A.3d
968, 971-72 (Pa. Super. 2017).
Instantly, Appellant argues that the identification evidence consisted of
general and inconsistent descriptions of height and clothing, and that the
Victim had limited opportunity to observe the masked perpetrators and could
only see their eyes. Appellant’s Brief at 17. Appellant contends that police
never recovered the stolen cell phone or a weapon. Id. Finally, Appellant
argues that he presented character evidence, which served as substantive
evidence to raise a reasonable doubt of guilt. Id. at 24. Appellant asserts
that the sum of the inconsistent and unreliable testimony coupled with the
lack of physical evidence rendered insufficient evidence to establish that
Appellant was one of the perpetrators of the crime. Id. at 26.
Appellant’s challenge ignores the critical facts that on the night of the
robbery, and again during trial, the Victim identified Appellant as the person
who held the gun to his head during the robbery. See N.T. Trial, 12/7/17, at
7-10, 17. The juvenile court found the Victim’s testimony to be credible, and
we are bound by the juvenile court’s credibility determinations. See Trial Ct.
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Op., filed 3/26/18, at 5. Because the Victim’s in-court identification was
sufficient, by itself, to prove the identity element of the crime, the
Commonwealth presented sufficient evidence to prove that Appellant was the
perpetrator of the crime.
Appellant cites Commonwealth v. Crews, 260 A.2d 771 (Pa. 1970),
to argue that identification evidence in this case was insufficient. However,
Crews is easily distinguished from the instant case. In Crews, our Supreme
Court held that the identification testimony, which was based solely on race,
height, and a description of common clothing, was insufficient to sustain a
conviction. Id. at 772. Unlike Crews, in this case, the trial court found
credible the Commonwealth’s descriptive evidence of Appellant’s height and
clothing but also – and most importantly – found credible the evidence of the
Victim’s in-court identification of Appellant as the male who held a gun to his
head. Accordingly, Appellant’s reliance on Crews is misplaced.
We acknowledge that most of Appellant’s argument centers on claims
that the identification evidence was inconsistent, unconvincing, or vague.
These challenges are more properly characterized as challenges to the weight
of the evidence, discussed infra. See Kinney, supra at 971-72.
In sum, the Victim’s in-court identification of Appellant was sufficient
evidence to prove that Appellant was the perpetrator of the crime and,
therefore, Appellant’s first issue lacks merit.
In his second issue, Appellant avers that the verdict is against the weight
of the evidence and that a new trial should be granted in the interest of justice.
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Appellant’s Brief at 26. Appellant once again argues that the Victim’s
identification testimony was inconsistent, unconvincing, or vague. Id. at 28.
Appellant also acknowledges that he failed to file a post-dispositional motion
pursuant to Pa.R.J.C.P. 6202 in juvenile court raising his weight of the evidence
challenge, and asserts that we should remand this case to allow him to file a
post-dispositional motion nunc pro tunc. Id. at 29. We agree.
Generally, a weight of evidence claim is “addressed to the discretion of
the judge who actually presided at trial.” In re J.B., 106 A.3d 76, 95 (Pa.
2014) (citations and quotation omitted). Once a trial court rules on a weight
claim, this Court can then review the trial court’s ruling for an abuse of
discretion. Id.
In In re J.B., supra, our Supreme Court determined that in juvenile
delinquency matters, unlike in adult criminal cases, the failure to preserve a
weight of the evidence challenge in a post-dispositional motion does not result
in automatic waiver of the claim on appeal. Id. at 98. The Court determined
that, even if an appellant raised the weight claim in a 1925(b) Statement and
the juvenile court addressed it in a 1925(a) Opinion, the appropriate remedy
is to remand the case to the juvenile court for the filing of a post-dispositional
2 Rule 620(A), entitled “Optional Post-Dispositional Motion[,]” gives parties the right to make a post-dispositional motion and states, inter alia, that “[c]laims properly raised before or during the adjudicatory hearing shall be deemed issues preserved for appeal whether or not the party elects to file a post-dispositional motion on those claims.” Pa.R.J.C.P. 620(A).
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motion nunc pro tunc challenging the weight upon which the court could then
make a specific ruling. Id.
Like the juvenile appellant in In re J.B., Appellant here raised his
challenge to the weight of the evidence for the first time in his Rule 1925(b)
Statement. Although the juvenile court addressed the weight of the evidence
challenge in its Rule 1925(a) Opinion, In re J.B. requires that we remand the
case to give Appellant the opportunity to file a post-dispositional motion nunc
pro tunc challenging the weight of the evidence. See also Interest of J.G.,
supra at 1187-88 (following In re J.B. and remanding to permit the juvenile
to file a post-dispositional motion nunc pro tunc challenging the weight of
evidence).3
In his third issue, Appellant avers that the juvenile court abused its
discretion when it failed to hear any evidence as to whether Appellant was in
need of treatment, rehabilitation, or supervision. Appellant’s Brief at 30.
Appellant argues that in order to sustain an adjudication of delinquency, the
juvenile court needs to make a finding that a juvenile is in need of treatment,
rehabilitation, or supervision, and there is no evidence in the record to support
such a finding in this case. Id. at 34-35. Appellant further argues that the
juvenile court did not give him an opportunity to present any evidence ____________________________________________
3 According to the Rules of Juvenile Court Procedure that were in place at the time of the December 27, 2017 Dispositional Order, we are constrained to remand this case. However, we note that effective October 1, 2018, in delinquency proceedings, a juvenile must raise a challenge to the weight of the evidence with the juvenile court judge or it will be waived pursuant to Rule 415. See Pa.R.J.C.P. 415.
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regarding his need for treatment, rehabilitation, or supervision. Id. at 33.
Appellant’s argument lacks merit.
Before a juvenile court enters an adjudication, Section 6341 of the
Juvenile Act provides, in relevant part, that after the juvenile court makes a
finding that the child committed delinquent acts:
The court shall then proceed immediately or at a postponed hearing, which shall occur not later than 20 days after such finding if the child is in detention or not more than 60 days after such finding if the child is not in detention, to hear evidence as to whether the child is in need of treatment, supervision or rehabilitation, as established by a preponderance of the evidence, and to make and file its findings thereon.
42 Pa.C.S. § 6341(b). Section 6351 explicitly states: “[i]n the absence of
evidence to the contrary, evidence of the commission of acts which constitute
a felony shall be sufficient to sustain a finding that the child is in need of
treatment, supervision or rehabilitation.” Id.
Here, the juvenile court found that Appellant committed Robbery and
Conspiracy, both as felonies of the first degree. As neither party presented
evidence to the contrary, the evidence of the commission of the Robbery and
Conspiracy acts itself was sufficient to show that Appellant was in need of
treatment, supervision, or rehabilitation.
Appellant next argues that the juvenile court did not give him an
opportunity to present evidence to the contrary. However, the juvenile court
explains, and the record reflects, that Appellant did not request an opportunity
to present evidence regarding whether he was in need of treatment,
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supervision, or rehabilitation and, if he had, the juvenile court would have
allowed it. Trial Ct. Op., filed 3/26/18, at 7 n.5. Further, Appellant failed to
object when the juvenile court made a finding of delinquency without hearing
additional treatment, supervision, or rehabilitation evidence from Appellant.
Id. Accordingly, Appellant has waived this challenge. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”); Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa.
Super. 2008) (“A party may not remain silent and afterwards complain of
matters which, if erroneous, the court would have corrected.”).
Finally, Appellant contends that the juvenile court abused its discretion
when it committed him to an out-of-home placement. Appellant’s Brief at 36.
Appellant argues that the juvenile court failed to set forth adequate reasons
why commitment was the least restrictive alternative and focused solely on
the gravity of the offense rather than Appellant’s individual circumstances.
Id.
As stated above, we will not disturb the juvenile court’s disposition
absent a manifest abuse of discretion. In Interest of J.G., supra at 1184.
Section 6301 states that the Juvenile Act should be interpreted and construed
to effectuate the following purpose concerning delinquent children:
Consistent with the protection of the public interest, to provide for children committing delinquent acts programs of supervision, care and rehabilitation which provide balanced attention to the protection of the community, the imposition of accountability for offenses committed and the development of competencies to enable children to become responsible and productive members of the community.
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42 Pa.C.S. § 6301(b)(2). Section 6301 also directs that juvenile courts use
the least restrictive intervention consistent with community protection. In
Interest of D.C.D., 171 A.3d 727, 738 (Pa. 2017) (citing 42 Pa.C.S. §
6301(b)(3)(i)).
Section 6352 of the Juvenile Act governs disposition of a delinquent child
and essentially mirrors the language in Section 6301. Section 6352 provides
that a court’s disposition should be “consistent with the protection of the public
interest and best suited to the child’s treatment, supervision, rehabilitation,
and welfare[.]” 42 Pa.C.S. § 6352(a). Further, “disposition shall, as
appropriate to the individual circumstances of the child's case, provide
balanced attention to the protection of the community, the imposition of
accountability for offenses committed and the development of competencies
to enable the child to become a responsible and productive member of the
community.” Id.
Section 6352 provides a juvenile court with a variety of options available
for placement of a delinquent child ranging from permitting the child to remain
with his or her parents to committing the child to an institution. In Interest
of D.C.D., 171 A.3d 727, 739 (Pa. 2017) (citing 42 Pa.C.S. § 6352(a)).
Notably, Section 6352 provides “when confinement is necessary, the court
shall impose the minimum amount of confinement that is consistent with the
protection of the public and the rehabilitation needs of the child.” 42 Pa.C.S.
§ 6352(a).
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Instantly, the juvenile court considered testimony from Appellant’s
family members, reference letters from the community, and a psychological
evaluation report, which included information that Appellant was excessively
absent from school. See Trial Ct. Op., filed 3/26/18, at 7-8; N.T. Hearing,
12/17/17, at 3-22. The juvenile court heard evidence that Appellant’s parents
had recently divorced, which had placed a financial and emotional strain on
the family. N.T. Hearing, 12/27/17, at 7. Additionally, Appellant’s father
testified that he did not believe his son had committed the crime. Id. at 11-
13. The juvenile court considered the above information, as well as the gravity
of the offense – that Appellant held a gun to the Victim’s head and robbed
him. The juvenile court determined that committing Appellant to out-of-home
placement at Glen Mills was “consistent with the protection of public interest
and best suited to [Appellant]’s treatment, supervision, rehabilitation, and
welfare.” Trial Ct. Op., filed 3/26/18, at 7-8. The juvenile court stated on the
record that given the gravity of the offense, commitment was the least
restrictive alternative. See N.T. Hearing, 12/27/17, at 9. Our review of the
record supports the juvenile court’s findings, and, thus, we find no abuse of
discretion.
In sum, we conclude that the juvenile court did not abuse its discretion
when it determined that there was sufficient identification evidence to
adjudicate Appellant delinquent. Likewise, the juvenile court did not abuse its
discretion when it determined that Appellant was in need of treatment,
supervision, and rehabilitation and made a finding that commitment was the
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least restrictive alternative. We remand for further proceedings limited to
Appellant’s challenge to the weight of the evidence.
Case remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/3/18
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