In Re: D.W. Appeal of: D.W. ( 2019 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN RE: D.W., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.W., A MINOR : No. 2974 EDA 2017
Appeal from the Order Dated August 9, 2017,
in the Court of Common Pleas of Lehigh County
Criminal Division at No. CP-39-JV-0000418-2017
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 02, 2019
D.W., a minor, appeals from the August 9, 2017 dispositional order
entered following his adjudication of delinquency for robbery, simple assault,
and criminal conspiracy to commit robbery.1 After careful review, we affirm.
The relevant facts and procedural history of this case, as gleaned from
the certified record, are as follows. On June 30, 2017, the Commonwealth
filed a delinquency petition against D.W. alleging that he committed the
delinquent acts of robbery, criminal conspiracy to commit robbery, and simple
assault. This petition stemmed from an incident that occurred on March 26,
2017, in which D.W. and three other juvenile males2 attempted to rob
12 year-old victim, C.D., of his bicycle in Allentown, Pennsylvania. (See notes
1 18 Pa.C.S.A. §§ 3701(a)(1)(iv), 2701(a)(3), and 903(a), respectively.
2These individuals were later identified as R.S., ZAY.B-B., and ZAI.B-B. (See
notes of testimony, 8/9/17 at 76.)
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of testimony, 8/9/17 at 27-31.) On August 9, 2017, a juvenile adjudication
hearing was conducted before the Honorable Kelly L. Banach, at the conclusion
of which D.W. was adjudicated delinquent of the aforementioned offenses.
That same day, the juvenile court placed D.W. on formal probation and
ordered him to pay restitution. D.W. did not file a post-dispositional motion.
This timely appeal followed on September 8, 2017. In lieu of filing a formal
opinion, the juvenile court indicated “that the reasons why this Court
substantiated [D.W.’s] delinquent acts and the reasons for disposition of
probation” are set forth on pages 133-144 of the adjudication hearing
transcript. (See juvenile court order, 7/23/18 at ¶ 3.)
On appeal, D.W. raises the following issues for our review:
A. Was the circumstantial evidence insufficient to
prove, beyond a reasonable doubt that [D.W.]
did, in the course of committing a theft, inflict
bodily injury upon another or threaten another
with or intentionally put him in fear of
immediate bodily injury?
B. Was the circumstantial evidence insufficient to
prove, beyond a reasonable doubt that [D.W.]
did, with the intent of promoting or facilitating
the commission of a crime, agree with another
person or persons that they or one or more of
them would engage in conduct which
constitutes such crime or an attempt or
solicitation to commit such crime, or agree 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?
C. Was the circumstantial evidence insufficient to
prove, beyond a reasonable doubt that [D.W.]
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did attempt by physical menace to put another
in fear of imminent serious bodily injury?
Appellant’s brief at 7.
All of D.W.’s claims challenge the sufficiency of the evidence to support
his adjudications. We apply the following standard of review when examining
a challenge to the sufficiency of the evidence supporting an adjudication of
delinquency:
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. The finder of fact is free to
believe some, all, or none of the evidence presented.
In the Interest of P.S., 158 A.3d 643, 650 (Pa.Super. 2017) (citation
omitted), appeal denied, 174 A.3d 1029 (Pa. 2017).
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“A person is guilty of robbery if, in the course of committing a theft, he
. . . inflicts bodily injury upon another or threatens another with or
intentionally puts him in fear of immediate bodily injury.” 18 Pa.C.S.A.
§ 3701(a)(1)(iv). “An act shall be deemed ‘in the course of committing a
theft’ if it occurs in an attempt to commit theft or in flight after the attempt
or commission.” Id. at § 3701(a)(2).
The crime of simple assault requires proof of attempting “by physical
menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S.A.
§ 2701(a)(3). Serious bodily injury is defined as a “[b]odily injury which
creates a substantial risk of death or which causes serious, permanent
disfigurement, or protracted loss or impairment of the function of any bodily
member or organ.” Id. at § 2301. We have held this proof may be met by
evidence of pointing a gun at another person under circumstances
demonstrating an intent to cause fear of serious injury. See In re Maloney,
636 A.2d 671, 674 (Pa.Super. 1994) (stating, “the act of pointing a gun at
another person [can] constitute simple assault as an attempt by physical
menace to put another in fear of imminent serious bodily injury” (citations and
internal quotation marks omitted)).
Criminal conspiracy, in turn, requires the Commonwealth to prove that
appellant “(1) entered into an agreement to commit or aid in an unlawful act
with another person or persons; (2) with a shared criminal intent; and (3) an
overt act was done in furtherance of the conspiracy.” Commonwealth v.
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Mitchell, 135 A.3d 1097, 1102 (Pa.Super. 2016), appeal denied, 145 A.3d
725 (Pa. 2016); see also 18 Pa.C.S.A. § 903(a). A conspiratorial agreement
can be proven by circumstantial evidence and “inferred from a variety of
circumstances including, but not limited to, the relation between the parties,
knowledge of and participation in the crime, and the circumstances and
conduct of the parties surrounding the criminal episode.” Commonwealth
v. Feliciano, 67 A.3d 19, 26 (Pa.Super. 2013) (en banc) (citation and
internal quotation marks omitted), appeal denied, 81 A.3d 75 (Pa. 2013).
Viewing the evidence, and all reasonable inferences drawn therefrom,
in the light most favorable to the Commonwealth, the verdict winner, we
conclude that the Commonwealth presented ample circumstantial evidence to
support D.W.’s adjudication of delinquency for robbery, simple assault, and
criminal conspiracy to commit robbery. The evidence presented at the
adjudication hearing established that D.W. and his cohorts actively worked in
concert to rob C.D. of his bicycle on the day in question, and placed him in
fear of imminent serious bodily injury in attempting to do so.
Specifically, the record establishes that on the afternoon of March 26,
2017, C.D. was riding his bike in an alley near his aunt’s home in Allentown,
Pennsylvania, with a GoPro camera attached to his helmet when he observed
D.W. and three other juvenile males, one of whom briefly displayed a gun.3
3This gun was later determined to be a metallic BB-gun. (Notes of testimony,
8/9/17 at 20.)
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(Notes of testimony, 8/9/17 at 27-29, 55-56.) C.D. testified that these four
boys approached him; and as he began to ride away, they accosted him in a
nearby alley and attempted to wrangle his bicycle away from him. (Id. at
30-31.) Specifically, C.D. testified that one of the boys grabbed the
handlebars of his bike; another stood behind him and placed a gun into his
back; a third boy began “fumbling” with his helmet, attempting to turn the
GoPro camera off; and the fourth boy stood by brandishing a large stick or
tree branch. (Id. at 31-33.) C.D. further testified that one of the four boys
had a bandana over his face and the other three boys had their hoods up.
(Id. at 33-34.) During the ensuing struggle, C.D.’s GoPro camera fell to the
ground and broke, and when he bent over to retrieve it, one of the juveniles
began to strike him with a large tree branch or stick. (Id. at 32-33.) C.D.
managed to escape on his bike and rode to his aunt’s home to call the police,
as D.W. and the other juveniles fled. (Id. at 33, 60-61.)
Allentown Police Officer Jacob Glenny testified that he arrived at the
scene shortly after receiving a call from dispatch for an armed robbery in
progress and was able to locate D.W. and the three other juveniles in a yard
approximately two blocks away. (Id. at 62-63.) At the time of his
apprehension, D.W. was observed in possession of a black and silver metallic
BB-gun, and an identical BB-gun was recovered from one of D.W.’s cohorts.
(Id. at 64-67.) Allentown video cameras further confirmed that all four
juveniles had fled the scene together after C.D. escaped. (Id. at 77.)
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Additionally, Officer Neil Battoni, an investigator with the Youth Division of the
Allentown Police Department, testified that one of D.W.’s cohorts, R.S.,
informed him that the two other juveniles he and D.W. were with on the day
of this incident and decided to take C.D.’s bicycle when they saw him ride
past, and that R.S. acknowledged that they all pulled up their hoods in attempt
to obscure their faces. (Id. at 76-77.)
Based on the foregoing, we agree with the juvenile court that there was
sufficient circumstantial evidence to support D.W.’s adjudication of
delinquency for robbery, simple assault, and criminal conspiracy to commit
robbery. See, e.g., In re Maloney, 636 A.2d at 674; Commonwealth v.
McKeever, 689 A.2d 272, 274 (Pa.Super. 1997) (holding, inter alia, that the
evidence was sufficient to support defendant’s conviction for criminal
conspiracy to commit robbery where he was associated with his accomplices,
had knowledge of the crime, and was present and participated in the crime).
Accordingly, we affirm the August 9, 2017 dispositional order.
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/2/19
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