In the Interest of: D.C., a Minor ( 2018 )

J-S42042-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
IN THE INTEREST OF: D.C., A MINOR : IN THE SUPERIOR COURT OF
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APPEAL OF D.C., A MINOR : No. 1998 MDA 2017
Appeal from the Dispositional Order October 16, 2017
in the Court of Common Pleas of Dauphin County Juvenile Division
at No(s): CP-22-JV-0000488-2017
BEFORE: BOWES, MCLAUGHLIN, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED: OCTOBER 17, 2018
D.C. (Appellant) appeals from the dispositional order entered on October
16, 2017, following his adjudication of delinquency for possession of a firearm
by a minor, burglary, receiving stolen property,1 and conspiracy to commit
burglary. We affirm in part, reverse in part, and remand the matter to the
juvenile court for proceedings consistent with this memorandum.
The juvenile court summarized the relevant factual history of this case
as follows.
During the weekend of July 7, 2017, the victim, Mark Keller,
Sr. [(Mr. Keller)] and his family were out of town, and their home
[was] left unoccupied. Upon arriving home, Mr. Keller noticed that
the air conditioning unit in his daughter’s bedroom was missing
1
The Commonwealth originally charged Appellant with theft by unlawful
taking. However, at the beginning of the adjudication hearing, and without
an objection by Appellant, the Commonwealth sought to amend the charge to
receiving stolen property, which the juvenile court subsequently granted.
N.T., 9/27/2017, at 4.
*Retired Senior Judge assigned to the Superior Court.
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and not visible from the street. He then went through the inside
of the home and discovered that numerous items, including two
[] PlayStation gaming systems, a .380 handgun, a 12 [gauge]
pump, a necklace, and an iPod[] were missing. Mr. Keller
immediately reported the incident to the Borough of Highspire
Police Department.
A short time after the burglary, a video was posted on the
social media application [Snapchat2] of a firearm that was taken
from Mr. Keller’s home. The video was personally viewed by Mr.
Keller, as well as his son, Mark Keller, Jr. (hereinafter “Junior”),
who identified the firearm as the .380 Ruger that was taken from
his home. Junior stated that the video was not sent to his
[Snapchat account], but was sent to an unidentified person.
Despite viewing the video in the presence of the person who
received it, Junior did not recall the name of the individual who
actually received the video. Both Mr. Keller and Junior identified
[Appellant] as the individual in the video with the firearm. Mr.
Keller was familiar with [Appellant] because he and Junior used to
be friends, and [Appellant] spent a lot of time with their family.
[Mr. Keller] testified that [Appellant] was aware that firearms
were kept in the home, but not of where they were physically
located. [The video was played at the adjudication hearing.]
Approximately one [] month after the burglary, Junior
began receiving messages through [Snapchat] from [Appellant.
Appellant’s] username on [Snapchat] is “Trey[,”] and the
messages that Junior received were from the same username.6
Junior testified that he received a message from [Appellant]
asking to meet up to return the stolen items.7 [Appellant]
requested $350 in exchange for the .380 Ruger and a pair of
Junior’s shoes. Junior stated that he asked [Appellant] why he
broke into the home, and [Appellant] responded that he needed
money. The two planned to meet in the middle of the night for
the exchange, but Junior never went.
______
2“Snapchat is a social media platform where users share photographs and
messages ....” Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d
585, 585 n.1 (S.D.N.Y. 2018).
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6 Junior knew the person sending the messages through
[Snapchat] was [Appellant] because they would continue
their [Snapchat] conversations when they next saw each
other in person. [Additionally, Appellant admitted he was
the one who sent the messages to Junior.]
7 Although the screenshots of the conversation admitted [at
the adjudication hearing were] one-sided wherein only
[Appellant’s] messages were shown, Junior testified as to
what his messages purportedly stated.
Thereafter, Junior sent a message to [Appellant] asking for
a picture of the .380 Ruger and the shoes. [Appellant] declined,
commenting that Junior was just going to use it as evidence
against him. Junior also testified that [Appellant] sent him a
message threatening to beat him up and take his money.
During the course of the investigation, Officer Jeffrey Levan
with the Borough of Highspire Police Department interviewed
[Appellant]. Officer Levan went to [Appellant’s] home, read him
his [Miranda3] rights, and interviewed him in the presence of his
grandmother. [Appellant] stated that he did not know where the
.380 Ruger was because he gave it to a friend, but refused to
disclose the name of the friend. [Appellant] and his grandmother
consented to a search of [Appellant’s] room and none of the items
w[as] found.
Juvenile Court Opinion, 2/21/2018, at 3-5 (record citations omitted).
In addition to the foregoing, Gloria Bechtel, who lives next door to the
Kellers, testified at Appellant’s adjudication hearing that during the weekend
of July 7, she was walking “out back” to her car when she noticed there were
children swimming in the Kellers’ pool. N.T., 9/27/2017, at 5. Ms. Bechtel
stated that she “didn’t think anything of it at first[,]” until the Kellers arrived
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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home and informed her that their home had been vandalized. Id. It was then
that Ms. Bechtel informed the Kellers of the children swimming in the pool.
Id. She testified that from her vantage point she saw “a young colored
gentleman [with dreadlocks and] two other people with” him. Id. at 5-6.
Although she was looking through a fence at the time and admitted that she
only saw the “back of [his] head[,]” Ms. Bechtel identified Appellant as the
individual with dreadlocks that she saw in the backyard that day. Id.
On July 12, 2017, a delinquency petition was filed against Appellant.
An adjudication hearing was held on September 27, 2017. At the
conclusion of the hearing, the [juvenile] court substantiated all
counts, as amended, concluding that the Commonwealth proved
the delinquent acts beyond a reasonable doubt. [Appellant] was
adjudicated delinquent and found in need of treatment,
supervision, or rehabilitation. A Dispositional Hearing was held on
October 16, 2017, wherein [Appellant] was put on formal
probation, placed in a residential facility at Adelphoi Village, and
ordered to pay restitution in the amount of $500.00 to [Mr.
Keller].
On October 26, 2017, [Appellant] filed a timely post-
dispositional motion. The Commonwealth filed a response on
November 24, 2017. After a review of the pleadings[, the juvenile
c]ourt denied [Appellant’s] post-dispositional motion.
Juvenile Court Opinion, 2/21/2018, at 2 (footnotes and unnecessary
capitalization omitted).
Appellant filed a notice of appeal, and both Appellant and the juvenile
court complied with Pa.R.A.P. 1925. On appeal, Appellant presents the
following issues for our review.
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1. Whether the evidence presented at [the] adjudication hearing
was insufficient to sustain the adjudication of delinquency for
burglary, receiving stolen property, possession of [a] firearm
by a minor, and criminal conspiracy to commit burglary?
2. Did the [juvenile] court err when it denied [Appellant’s] motion
for a new adjudication hearing based on the adjudication of
delinquency was [sic] against the weight of the evidence?
3. Did the [juvenile] court err when it did not take into
consideration that the Commonwealth had charged [Appellant]
with theft by receiving stolen property because the
Commonwealth could not show that the juvenile was involved
in the burglary?
4. Did the [juvenile] court err when it allowed the one[-]sided
Snapchat conversations into evidence due to the fact that they
were not properly preserved and lacked a foundation?
Appellant’s Brief at 9 (unnecessary capitalization and suggested answers
omitted).
We begin with our standard of review of dispositional orders in juvenile
proceedings. The Juvenile Act grants broad discretion to juvenile courts in
determining appropriate dispositions. In re C.A.G., 89 A.3d 704, 709 (Pa.
Super. 2014). Indeed, the Superior Court will not disturb the juvenile court’s
disposition absent a manifest abuse of discretion. In the Interest of J.D.,
798 A.2d 210, 213 (Pa. Super. 2002). “Not merely an error in judgment, an
abuse of discretion occurs when the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will, as shown by the evidence on record.”
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Commonwealth v. Handfield, 34 A.3d 187, 208 (Pa. Super. 2011) (quoting
Commonwealth v. Cain, 29 A.3d 3, 6 (Pa. Super. 2011)).
We review Appellant’s sufficiency claim, mindful of the following.
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).
On appeal, Appellant contends that the Commonwealth failed to prove
the elements of the aforementioned crimes beyond a reasonable doubt,
although he cites little case law to support his argument. Appellant’s Brief at
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18-22. Appellant baldly asserts that the juvenile court’s conclusions are not
supported by the record. Specifically, Appellant argues that the testimony of
the Commonwealth’s witnesses and evidence introduced at the adjudication
hearing failed to establish the elements of the crimes charged. Id.
First, we observe that Appellant preserved only his sufficiency challenge
with respect to his adjudication of delinquency for conspiracy to commit
burglary. The rest of his sufficiency claim is waived due to his inadequate
Pa.R.A.P. 1925(b) concise statement. Specifically, with respect to burglary,
receiving stolen property, and possession of a firearm by a minor, Appellant’s
concise statement raised only a generic challenge and did not specify precisely
which elements of the crimes he contends the Commonwealth failed to prove.
This Court has repeatedly required an appellant to specify in the Rule
1925(b) statement the particular element or elements upon which the
evidence was insufficient. See Commonwealth v. Tyack, 128 A.3d 254,
260 (Pa. Super. 2015) (“Appellant’s Rule 1925(b) statement simply declared,
in boilerplate fashion, that the evidence was insufficient to support his
conviction. … The statement thus failed to specify the element or elements
upon which the evidence was insufficient to support Appellant’s conviction—
and we must conclude that Appellant’s sufficiency of the evidence claim is
waived on appeal.”) (quotation marks omitted).
Regarding his sufficiency claims with respect to his adjudication of
delinquency for burglary, possession of a firearm by a minor, and theft by
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receiving property, we note that even if Appellant did not waive these
challenges based upon his deficient Rule 1925(b) statement, Appellant would
still not be entitled to relief. When evaluating Appellant’s sufficiency claim
the entire record must be evaluated and all evidence actually
received must be considered. … When examining the evidence in
the trial record in a light most favorable to the Commonwealth,
we do not make new factual determinations based on the trial
evidence introduced; rather, we accept the evidence of record,
and all reasonable inferences drawn therefrom on which the
factfinder could properly have based its verdict, as factually true.
In Interest of J.B., 189 A.3d 390, 414–15 (Pa. 2018) (quotations, citations,
and footnote omitted).
In order for the juvenile court to adjudicate Appellant delinquent for
burglary, the Commonwealth had to prove that Appellant “enter[ed] a building
or occupied structure, or separately secured or occupied portion thereof that
is adapted for overnight accommodations in which at the time of the offense
no person is present” with the intent to commit a crime therein. 18 Pa.C.S. §
3502(a)(2). For possession of a firearm by a minor, the Commonwealth was
required to prove that (1) the weapon was a firearm as defined by the statute,
(2) that Appellant was in possession of the firearm, and (3) that Appellant was
under the age of 18 at the time of the offense. 18 Pa.C.S. § 6110.1(a). Lastly,
to prove theft by receiving stolen property, the Commonwealth must present
evidence to prove that Appellant received, retained or disposed of “moveable
property of another knowing that it ha[d] been stolen, or believing that it
ha[d] probably been stolen[.]” 18 Pa.C.S. § 3925.
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In addressing Appellant’s sufficiency claim, the juvenile court stated that
“[t]he testimony and evidence presented at the adjudication hearing, together
with all reasonable inferences derived therefrom, is [sic] sufficient to sustain
Appellant’s adjudications[.]” Juvenile Court Opinion, 2/21/2018, at 7. Our
review of the record confirms that the juvenile court did not abuse its
discretion when finding the evidence was sufficient to prove the
aforementioned crimes.4 Upon viewing the evidence in light most favorable
to the Commonwealth, we agree with the juvenile court that the testimony at
the adjudication hearing established that during the weekend of July 7, while
Mr. Keller was away with his family, his home was burglarized. N.T.,
9/27/2017, at 9-10. A Ruger .380 handgun was among the items stolen from
Mr. Kellers’ home. Id. at 10. That same weekend, Ms. Bechtel, a neighbor
of the Kellers, witnessed three boys in the Keller’s swimming pool, and she
identified one of the individuals as Appellant. Id. at 5-6. Approximately a
week after the burglary, Mr. Keller and his son, Junior, viewed a video on
Snapchat, which depicted Appellant holding a Ruger .380. Id. at 13, 19.
Junior identified the weapon seen in the video as his “dad’s gun.” Id. at 18-
4 We note that our references infra, to the Snapchat video and messages
entered into evidence as Commonwealth’s Exhibits 1-8, are based upon the
testimony of Mr. Keller, Junior, and Appellant. These exhibits were not
included in the certified record received by this Court. “[I]t is appellant’s duty
to ensure that the certified record is complete for purposes of review.”
Commonwealth v. Wall, 953 A.2d 581, 586 n.6 (Pa. Super. 2008) (citation
and quotation marks omitted).
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19. Mr. Keller testified that he knew Appellant prior to viewing this incident
because Appellant and Junior used to be friends. Id. at 15. Mr. Keller
confirmed that Appellant was aware there were firearms in Mr. Keller’s home.
Id.
Officer Levan testified that during his investigation of the burglary he
spoke with Appellant, explained to Appellant he had viewed the Snapchat
video of Appellant with a handgun and loaded magazine and asked where the
firearm was. Id. at 31. Appellant responded that “he didn’t know, and then
[Appellant] stated he gave it to a friend.” Id. When asked to identify who
currently had the firearm, Appellant refused. Id.
In addition, Junior testified about a conversation he had with Appellant
via Snapchat. Due to the nature of Snapchat, only Appellant’s messages were
preserved, but Junior testified, without objection, as to what he said in
response to the messages. These messages, which Appellant admitted he
sent, involved the burglary and items stolen from the home. Id. at 21-27,
37. Specifically, Appellant had agreed to meet Junior to return the firearm
and a pair of sneakers in exchange for money. Id. at 25. Further, Appellant
sent a message to Junior explaining he burglarized the home because he was
“down bad.”5 Id. at 24.
5
Junior testified that “down bad” meant not having money. N.T., 9/27/2017,
at 24.
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Based on the foregoing, the evidence was sufficient to allow the juvenile
court to conclude that Appellant: (1) entered Mr. Keller’s home, without
permission, and with the intention to commit a crime; and (2) was in
possession of stolen property, namely a Ruger .380.6 Thus, with respect to
the charges of burglary, possession of a firearm by a minor, and receiving
stolen property, Appellant’s sufficiency challenge fails.
We now address Appellant’s claim that the evidence was insufficient to
prove conspiracy to commit burglary. On appeal, Appellant argues the
Commonwealth failed to prove conspiracy because it did not introduce any
evidence to prove “that there was an agreement between Appellant and the
co-defendant[7] to burglarize [Mr. Keller’s] home.” Appellant’s Brief at 22.
To prove conspiracy, the evidence must show that Appellant agreed with
a “person or persons that they or one or more of them will engage in [or aid
in] conduct which constitutes such crime or an attempt or solicitation to
commit such crime[.]” 18 Pa.C.S. § 903.
6
Notably, at the close of testimony, Appellant’s counsel conceded “that the
possession of [a] firearm by a minor has been met by the Commonwealth due
to the videos that were presented today in evidence.” N.T., 9/27/2017, at 9-
10.
7
The record reflects that there is a co-defendant in this case. See Petition for
Appointment of Counsel Outside the Public Defender’s Officer, 8/14/2017
(requesting appointment of outside counsel because a conflict of interest
exists with representing Appellant since a co-defendant “is currently being
represented by the Public Defender’s Office.”). However, there is no mention
or introduction of any testimony regarding this co-defendant at the
adjudication hearing.
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[Conspiracy] requires proof that: 1) the [juvenile] entered
into an agreement with another to commit or aid in the
commission of a crime; 2) he shared the criminal intent with that
other person; and 3) an overt act was committed in furtherance
of the conspiracy. This overt act need not be committed by the
[juvenile]; it need only be committed by a co-conspirator.
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a particular
criminal objective be accomplished. Therefore, [an adjudication of
delinquency] for conspiracy requires proof of the existence of a
shared criminal intent. An explicit or formal agreement to commit
crimes can seldom, if ever, be proved and it need not be, for proof
of a criminal partnership is almost invariably extracted from the
circumstances that attend its activities. Thus, a conspiracy may
be inferred where it is demonstrated that the relation, conduct, or
circumstances of the parties, and the overt acts of the co-
conspirators sufficiently prove the formation of a criminal
confederation. The conduct of the parties and the circumstances
surrounding their conduct may create a web of evidence linking
the accused to the alleged conspiracy beyond a reasonable doubt.
Even if the conspirator did not act as a principal in committing the
underlying crime, he is still criminally liable for the actions of his
co-conspirators in furtherance of the conspiracy.
[M]ere presence at the scene of a crime and knowledge of
the commission of criminal acts is not sufficient [to establish a
conspiracy]. Nor is flight from the scene of a crime, without more,
enough. However, such factors, combined with other direct or
circumstantial evidence, may provide sufficient evidence
sustaining an adjudication of delinquency for conspiracy.
In re V.C., 66 A.3d 341, 349–50 (Pa. Super. 2013).
In this case, the juvenile court found sufficient evidence to adjudicate
Appellant delinquent of conspiracy based on: (1) Ms. Bechtel’s identification
of Appellant being present in the Kellers’ pool the weekend of the burglary
with two unidentified juveniles; (2) evidence that established Appellant was
involved in burglarizing the Kellers’ home; and (3) Appellant’s admission to
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Officer Levan that he had given the firearm to a friend, which the juvenile
court found “reinforce[d] the existence of at least one [] co-conspirator.”
Juvenile Court Opinion, 2/21/2018, at 7-8.
In its brief to this Court, the Commonwealth echoed the juvenile court’s
conclusions, averring “[t]he presence of the group of persons at the scene of
the crime in addition to the possession of stolen property by [Appellant] may
therefore be used to draw the inference that a conspiracy to commit burglary
and theft existed between the parties.” Commonwealth’s Brief at 7
(unnumbered).
Upon review of the evidence submitted and the applicable case law cited
supra, we disagree with the juvenile court’s conclusion that there was
sufficient evidence to establish a conspiracy. “The facts and circumstances
show neither a criminal agreement nor an overt act in furtherance of a criminal
agreement.” Commonwealth v. Paschall, 482 A.2d 589, 592 (Pa. Super.
1984). Here, the only evidence presented at the adjudication hearing with
respect to the involvement of additional individuals with whom Appellant is
alleged to have conspired is the testimony of Ms. Bechtel who stated she
observed Appellant and two other juveniles in the Kellers’ pool. Juvenile Court
Opinion, 2/21/2018, at 7. Notably, she did not testify that she saw the
juveniles engaging in any criminal activity. “Mere association or presence at
the scene of a crime is insufficient to establish a conspiracy.” In Interest of
J.F., 714 A.2d 467, 474 (Pa. Super.1998). See also In re Amos, 430 A.2d
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688, 690 (Pa. Super. 1981) (The “presence at the scene of a crime in company
with the alleged perpetrator [] has been held not sufficient to sustain a
conviction” for conspiracy); Commonwealth v. Chambers, 188 A.2d 400
(Pa. 2018) (“Mere association with the perpetrators, mere presence at the
scene, or mere knowledge of the crime is insufficient to prove that a particular
actor was involved in a criminal conspiracy.”) (quotation marks omitted).
Nor are we able to infer, as the juvenile court has, that Appellant’s
admission that he gave the firearm to a friend “reinforced” the existence of a
conspiracy. This act, without more, does not establish a shared criminal intent
between Appellant and this unnamed friend. In fact, there is no evidence this
unnamed friend was one of the individuals seen by Mrs. Bechtel. “A conspiracy
cannot be established based only upon mere suspicion and conjecture.
Preexisting relationships or ‘mere association of participants,’ without more,
will not suffice to establish a prosecutable criminal conspiracy.” Id. at 410.
(some quotation marks omitted; emphasis in original). Thus, we find the
evidence at the adjudication hearing was insufficient to prove the existence of
a conspiracy, and reverse his adjudication of delinquency with respect to this
charge. See In Interest of J.B., 189 A.3d at 415 (“If the evidence of record
viewed in the light most favorable to the Commonwealth, as well as all
reasonable inferences derived therefrom, does not establish the defendant’s
guilt beyond a reasonable doubt of any element of the offense for which he
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was tried, then the evidence is insufficient to sustain the defendant's
conviction as a matter of law, and he must be discharged.”)
Next, we begin our review of Appellant’s weight claim 8 by setting forth
our standard of review.
This Court applies the same standard for reviewing weight of the
evidence claims in juvenile cases as those involving adults. An
allegation that the verdict is against the weight of the evidence is
addressed to the discretion of the [juvenile] court. An appellate
court, therefore, reviews the exercise of discretion, not the
underlying question whether the verdict is against the weight of
the evidence. Moreover, a court’s denial of a motion for a new
trial based upon a weight of the evidence claim is the least
assailable of its rulings.
In Interest of J.G., 145 A.3d 1179, 1187 (Pa. Super. 2016) (citations and
quotation marks omitted).
A [] court should award a new trial on this ground only when the
verdict is so contrary to the evidence as to shock one’s sense of
justice. A motion alleging the verdict was against the weight of
the evidence should not be granted where it merely identifies
contradictory evidence presented by the Commonwealth and the
defendant. Our review on appeal is limited to determining
whether the [] court abused its discretion in denying the motion
for a new trial on this ground.
Commonwealth v. Chamberlain, 30 A.3d 381, 396 (Pa. 2011) (citations
omitted).
In support of his argument, Appellant contends the juvenile court
afforded “improper weight” to the testimony of Ms. Bechtel and Junior.
8
Because we find the evidence insufficient to sustain an adjudication of
dependency for conspiracy, we address Appellant’s weight claim only as it
pertains to the remaining crimes.
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Appellant’s Brief at 22. Specifically, Appellant avers the juvenile court: (1)
“improperly assumed that [] Appellant was actually involved” in the burglary
based on Ms. Bechtel’s testimony “even though based on her own testimony,
she did not see Appellant engaged in any criminal conduct during the entire
episode[,]” and did not see the face of the juvenile who[m] she described as
“a young colored gentleman” with dreadlocks; and (2) “improperly relied on
[Junior’s] statements when it came to the conversation [Junior] had with
Appellant, which w[as] not preserved” on Snapchat. Id. at 23. Additionally,
Appellant argues that Junior’s testimony that he could not identify the
individual who received the Snapchat video from Appellant, even though
Junior testified that he was in this individual’s presence at the time he viewed
the video, called into doubt Junior’s credibility. Id.
With respect to its verdict, the juvenile court noted that the evidence
presented, which included additional evidence beyond the testimony of Ms.
Bechtel and Junior, supported the court’s adjudication. Additionally, the court
credited Junior’s testimony regarding the conversation he had with Appellant.
Id. In doing so, the court presumably disbelieved Appellant’s testimony that
he did not break into the Kellers’ home and that he “wasn’t thinking” when he
sent the messages to Junior. N.T., 9/21/2017, at 33-34.
We discern no abuse of discretion in the court’s conclusion. In this case,
the court reviewed all the evidence presented, including the Snapchat video
and conversations involving Appellant, as well as the testimony of Appellant,
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the investigating officer, Ms. Bechtel, Mr. Keller, and Junior. After doing so,
the juvenile court was within its discretion to disbelieve Appellant’s testimony
in favor of the other witnesses and evidence presented. See Commonwealth
v. Kinney, 157 A.3d 968, 972, n.3 (Pa. Super. 2017) (“The weight of the
evidence is exclusively for the finder of fact, which is free to believe all, part,
or none of the evidence, and to assess the credibility of the witnesses.... An
appellate court cannot substitute its judgment for that of the jury on issues of
credibility.”) (citation omitted). No relief is due.
With respect to his third issue, Appellant avers the juvenile court erred
in failing to “take into consideration the fact that the Commonwealth”
amended Appellant’s charge from theft by unlawful taking to theft by receiving
stolen property. Appellant’s Brief at 24. Appellant contends this amendment
was made because “the Commonwealth could not show that Appellant was
involved in the [b]urglary to be able to prove a [t]heft by [u]nlawful [t]aking
offense.” Id.
We begin by noting that Appellant’s issue as presented is confusing, and
like the juvenile court, this Court is “unable to discern the precise issue
Appellant is trying to raise.” Juvenile Court Opinion, 2/21/2018, at 10. The
juvenile court opined that Appellant is “attempting to assert a challenge to the
amended charge[,]” and such a claim is waived.9 Id.
9
The court’s interpretation of this issue is based on the language in Appellant’s
concise statement, in which he set forth the following, verbatim:
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Based on our review of Appellant’s brief, although inarticulately phrased,
it appears to this Court that Appellant is attempting to argue that he could not
be adjudicated delinquent of both burglary and theft by receiving stolen
property, although Appellant provides no real argument in support of this
contention. Appellant’s Brief at 24-25 (“If Appellant was found [guilty] on the
[b]urglary charge[, …] he could not have received property that was stolen
from another.”).
To the extent Appellant is attempting to challenge the amended charge,
we agree with the juvenile court that, because Appellant did not object to the
Commonwealth’s request to modify the charge, Appellant failed to preserve
this issue for appeal and it is waived. N.T., 9/27/2017, at 4 (When asked
whether there was any objection to the Commonwealth’s proposed
modification, Appellant’s counsel answered “[n]o objection[.]”).
Furthermore, any claim that the juvenile court erred in granting the
Commonwealth’s request is similarly waived. See Pa.R.A.P. 320(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
The trial court erred when it did not take into consideration the
fact that the Commonwealth had charged the Juvenile with Theft
by Receiving Stolen Property because the Commonwealth could
not show that the Juvenile was involved in the Burglary to be able
to prove a Theft by Unlawful Taking offense.
Concise Statement, 1/24/18, at 3 (unnumbered).
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We likewise find that because the issue raised in Appellant’s concise
statement is vague and confusing, Appellant has failed to preserve properly
his claim that the juvenile court erred when it adjudicated Appellant delinquent
of both burglary and theft by receiving stolen property.
Rule 1925 is intended to aid trial judges in identifying and focusing
upon those issues which the parties plan to raise on appeal. Rule
1925 is thus a crucial component of the appellate process. When
a court has to guess what issues an appellant is appealing, that is
not enough for meaningful review. When an appellant fails
adequately to identify in a concise manner the issues sought to be
pursued on appeal, the trial court is impeded in its preparation of
a legal analysis which is pertinent to those issues. In other words,
a Concise Statement which is too vague to allow the court to
identify the issues raised on appeal is the functional equivalent of
no Concise Statement at all.
Commonwealth v. Ray, 134 A.3d 1109, 1114 (Pa. Super. 2016) (citation
omitted).
Regardless, even if Appellant preserved this issue for our review, he
would not be entitled to relief. First, as set forth supra, the evidence was
sufficient to adjudicate Appellant delinquent of burglary and theft by receiving
stolen property. Second, we categorically reject any attempted argument
made by Appellant that, because the basis of his adjudication for burglary was
his intention to commit a theft therein, he could not have been found to have
committed the crime of theft by receiving stolen property. Appellant’s Brief
at 25. See Commonwealth v. Kuykendall 465 A.2d 29 (Pa. Super. 1983)
(holding, inter alia, that a defendant who stole a vehicle and retained it could
be convicted of receiving stolen property that he himself had stolen).
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With respect to Appellant’s final claim, Appellant contends the juvenile
“court erred when it allowed [one-sided Snapchat] conversations into
evidence due to the fact that they were not properly preserved and lacked a
foundation.” Appellant’s Brief at 25. Appellant avers the entry of these
conversations “improperly shifted the burden to [Appellant] to testify during
the proceedings in order to explain” the conversations. Id.
The admissibility of evidence is at the discretion of the trial court
and only a showing of an abuse of that discretion, and resulting
prejudice, constitutes reversible error. Evidence is relevant if it
tends to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable
than it would be without the evidence. But, [a]lthough relevant,
evidence may be excluded if its probative value is outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
Commonwealth v. Sanchez, 36 A.3d 24, 48–49 (Pa. 2011) (citations and
quotation marks omitted).
In its opinion to this Court, the juvenile court noted that while “Appellant
objected to the lack of foundation of Commonwealth’s Exhibit 1- a Snapchat
video- he failed to object to the remainder of the Commonwealth’s exhibits.”
Juvenile Court Opinion, 2/21/2018, at 10. Thus, the court opined, Appellant
waived this issue. After review of the transcript, we agree.
“We have long held that [f]ailure to raise a contemporaneous objection
to the evidence at trial waives that claim on appeal.” Commonwealth v.
Thoeun Tha, 64 A.3d 704, 713 (Pa. Super. 2013) (citations and quotation
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marks omitted). See also Commonwealth v. Tucker, 143 A.3d 955, 961
(Pa. Super. 2016) (“[T]he failure to make a timely and specific objection
before the trial court at the appropriate stage of the proceedings will result in
waiver of the issue.”); Pa.R.E. 103(a)(1).
In this case, Appellant’s counsel did not object to the entry of the
Snapchat conversations at trial. N.T., 9/27/2017, at 22-23. In fact, when
the Commonwealth requested the Snapchat messages be entered into
evidence, counsel for Appellant stated he had “no objection.” Id.
Accordingly, we find Appellant’s final claim waived.10
In light of the foregoing, we reverse Appellant’s adjudication of
delinquency with regard to the conspiracy charge, but affirm the adjudication
in all other respects. As this may affect the juvenile court’s disposition, we
vacate the disposition order of October 16, 2017 and remand for entry of a
new disposition order.
Adjudication affirmed in part, reversed in part, and case remanded for
proceedings consistent with this memorandum. Jurisdiction relinquished.
10 Furthermore, as stated supra, Appellant has failed to include these exhibits
in the certified record. Thus, even if this claim were not waived for the
foregoing reason, we would find waiver based on Appellant’s failure to ensure
the inclusion of the exhibits in the record. See Commonwealth v. Manley,
985 A.2d 256, 263 (Pa. Super. 2009) (“A failure by [A]ppellant to insure that
the original record certified for appeal contains sufficient information to
conduct a proper review constitutes waiver of the issue sought to be
examined.”) (citation omitted).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/17/2018
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