In the Int. of: T.C., Appeal of: T.C. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF: T.C., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
APPEAL OF: T.C. : No. 1404 EDA 2018
Appeal from the Dispositional Order April 10, 2018
in the Court of Common Pleas of Delaware County
Juvenile Division at No(s): CP-23-JV-0000792-2017
BEFORE: OTT, J., NICHOLS, J. and STRASSBURGER, J.*
MEMORANDUM BY STRASSBURGER, J.: FILED APRIL 26, 2019
T.C. (Appellant) appeals from the dispositional order entered on April
10, 2018, following his adjudication of delinquency for burglary and related
offenses. Appellant’s counsel has filed a petition to withdraw and a brief
pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). On January 17,
2019, we remanded the case for counsel to comply with the requirements of
Anders. Counsel has filed an amended petition to withdraw and ensured
the inclusion of necessary materials in the certified record. The case is now
ready for disposition. Upon review, we affirm the dispositional order and
grant counsel’s petition to withdraw.
We provide the following background. On June 24, 2017, Officer
Brady McHale responded to a call for a reported theft at a concession stand,
known as the Snack Shack, located inside the facilities at a local ballpark in
Radnor Township. N.T., 4/10/2018, at 9. Officer McHale investigated the
*Retired Senior Judge assigned to the Superior Court.
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bathroom adjacent to the Snack Shack and observed damage to a handrail
and ceiling tile in the handicapped stall, as well as debris on the ground,
indicating that someone had climbed through the ceiling in the bathroom to
enter the Snack Shack. Id. at 9-11. A surveillance camera located inside
the Snack Shack recorded the theft. Id. at 11. Upon watching the footage,
Officer McHale immediately recognized 15-year-old Appellant. Id. at 14-15.
Specifically, he testified to his observations of the video recording as follows.
[Appellant] enters from the ceiling area, opens up his backpack,
[opens a refrigerator], and takes some sodas, then proceed[s]
over to [] boxes, which are a variety of candy and chips and
typical concession-stand-type food, places them into the
backpack, returns the backpack to an unknown person and/or
persons [in the ceiling] … and then returns back up with the
assistance of a hand.
Id. at 13-14. As part of his investigation, Officer McHale executed a search
warrant at Appellant’s home, recovering a pellet gun. Id. at 16.
Based upon the foregoing, the Commonwealth filed a juvenile petition
averring that Appellant engaged in the delinquent acts of burglary, receiving
stolen property, theft by unlawful taking, criminal mischief, and unlawful
possession of a pellet gun. At the adjudicatory hearing on April 10, 2018,
the juvenile court heard testimony from Officer McHale, Appellant, and an
alibi witness; watched the Snack Shack surveillance video recording, which
clearly depicted the perpetrator; and viewed photographs of the damage to
the bathroom. At the conclusion of the hearing, the court found the
testimony of Officer McHale credible, Appellant’s alibi defense incredible, and
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determined that Appellant had committed the aforementioned delinquent
acts. Id. at 33. Additionally, at the recommendation of Juvenile Probation
and without objection from Appellant, the court found Appellant in need of
treatment, supervision, and rehabilitation. See N.T., 4/10/2018, at 34-36.
Therefore, the court issued a dispositional order that same day, placing
Appellant on probation and scheduling a dispositional review hearing for
October 3, 2018. Adjudicatory/Dispositional Review Order – Amended,
4/10/2018.
This timely-filed appeal followed.1 In this Court, Appellant’s counsel
filed both an Anders brief and a petition to withdraw as counsel.
1 The Commonwealth argues that this order was not a final, appealable
order, and therefore this appeal is premature. Commonwealth’s Brief at 1,
6. “In juvenile proceedings, the final order from which a direct appeal may
be taken is the order of disposition, entered after the juvenile is adjudicated
delinquent.” Commonwealth v. S.F., 912 A.2d 887, 889 (Pa. Super. 2006)
(unnecessary capitalization omitted). Before entering an adjudication of
delinquency, “the Juvenile Act requires a juvenile court to find that a child
has committed a delinquent act and that the child is in need of treatment,
supervision, or rehabilitation.” Commonwealth v. M.W., 39 A.3d 958, 964
(Pa. 2012) (emphasis in original). “If the court determines the juvenile is in
need of treatment, supervision, or rehabilitation, the court shall enter an
order adjudicating the juvenile delinquent and proceed in determining a
proper disposition[.]” In Interest of N.C., 171 A.3d 275, 280–81 (Pa.
Super. 2017) (quoting Pa.R.J.C.P. 409(2)(a)). Here, at the April 10, 2018
hearing, the juvenile court found Appellant to have committed delinquent
acts and determined that Appellant was in need of treatment, supervision,
and rehabilitation. It then entered a disposition as discussed supra. Thus,
the dispositional order was a final, appealable order entered after Appellant
was adjudicated delinquent. Accordingly, this appeal is properly before us.
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Accordingly, the following principles guide our review of this matter
following remand.
Direct appeal counsel seeking to withdraw under Anders
must file a petition averring that, after a conscientious
examination of the record, counsel finds the appeal to be wholly
frivolous. Counsel must also file an Anders brief setting forth
issues that might arguably support the appeal along with any
other issues necessary for the effective appellate presentation
thereof….
Anders counsel must also provide a copy of the Anders
petition and brief to the appellant, advising the appellant of the
right to retain new counsel, proceed pro se or raise any
additional points worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical
requirements of Anders, this Court will deny the petition to
withdraw and remand the case with appropriate instructions
(e.g., directing counsel either to comply with Anders or file an
advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
petition and brief satisfy Anders, we will then undertake our
own review of the appeal to determine if it is wholly frivolous. If
the appeal is frivolous, we will grant the withdrawal petition and
affirm …. However, if there are non-frivolous issues, we will deny
the petition and remand for the filing of an advocate’s brief.
Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)
(citations omitted). Our Supreme Court has clarified portions of the Anders
procedure as follows.
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (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
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law, and/or statutes on point that have led to the conclusion that
the appeal is frivolous.
Santiago, 978 A.2d at 361. Additionally, counsel seeking to withdraw from
an appeal in a juvenile delinquency proceeding must provide notice of that
request to both the juvenile and the juvenile’s parents. See
Commonwealth v. Heron, 674 A.2d 1138, 1140 (Pa. Super. 1996) (“We
find the requirement of the Juvenile Act that notice be given to a juvenile
and his/her parents applicable to Anders cases involving juveniles.”).
Based upon our examination of counsel’s petition to withdraw and
Anders brief, we conclude that counsel has complied substantially with the
technical requirements set forth above.2 Therefore, we now have the
responsibility “‘to make a full examination of the proceedings and make an
independent judgment to decide whether the appeal is in fact wholly
frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.
2015) (quoting Santiago, 978 A.2d at 354 n. 5).
The sole issue arguably supporting an appeal cited by Appellant’s
counsel is whether the evidence was sufficient to establish Appellant’s
identity as the culprit in the above-mentioned theft. Anders Brief at 3. The
same standard of review applies when reviewing a challenge to a juvenile
adjudication as in a challenge in an adult criminal case. In Interest of
J.B., 189 A.3d 390, 414 (Pa. 2018). “Because evidentiary sufficiency is a
2 Appellant has not filed a response to counsel’s motion.
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pure question of law, our standard of review is de novo and our scope of
review is plenary.” Id. at 414 n.24 (citation omitted).
When 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
defendant’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.
In re V.C., 66 A.3d 341, 348–49 (Pa. Super. 2013) (citation and quotation
marks omitted). The finder of fact is free to believe some, all, or none of the
evidence presented. Commonwealth v. Gainer, 7 A.3d 291, 292 (Pa.
Super. 2010).
Appellant’s counsel does not present a claim that the evidence was
insufficient to prove any of the elements of the charged offenses, but rather
that the evidence was insufficient to prove that Appellant was the culprit.
Anders Brief at 6-7. In order for the juvenile court to adjudicate Appellant
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delinquent of the theft-related crimes, the Commonwealth was required to
prove beyond a reasonable doubt that Appellant was the individual who
broke into the Snack Shack and stole the concession items.
At the April 10, 2018 hearing, the juvenile court heard the testimony
of Officer McHale, as outlined supra, and viewed the surveillance video.
Additionally, the Commonwealth admitted into evidence photographs of the
damage to the bathroom railing and ceiling tile. N.T., 4/10/2018, at 10-11,
Exhibits C1, C2. Appellant testified on his own behalf and presented an alibi
witness. The juvenile court ultimately found that based on “the arresting
officer’s testimony, the photographs indicating damage done to the
premises, and the video surveillance[,]” the Commonwealth met its burden
to prove beyond a reasonable doubt that Appellant was the individual who
committed the delinquent acts. Juvenile Court Opinion, 6/26/2018, at 7.
The juvenile court was free to reach its own conclusions, particularly
after viewing the surveillance video depicting the perpetrator, which included
a clear shot of the perpetrator’s face, and observing Appellant in court, to
credit the officer’s testimony and identification, and to disbelieve Appellant’s
alibi defense. Accordingly, viewing the evidence in the light most favorable
to the Commonwealth, there was sufficient evidence for the juvenile court to
find Appellant had committed the delinquent acts.
Based upon the foregoing, we agree with counsel that a challenge to
the sufficiency of the evidence is frivolous. Moreover, after “a full
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examination of the proceedings” we conclude “the appeal is in fact wholly
frivolous.” Flowers, 113 A.3d at 1248. Accordingly, we affirm the
dispositional order and grant counsel’s petition to withdraw.
Dispositional order affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/19
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