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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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 JANUARY 17, 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). We remand with
instructions.
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 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.
*Retired Senior Judge assigned to the Superior Court.
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A surveillance camera located inside the Snack Shack recorded the theft.1
Id. at 11. Upon watching the footage, Officer McHale immediately
recognized 15-year-old Appellant. Id. a 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 from within a pellet gun. Id. at 16.
Based upon the foregoing, the Commonwealth filed a juvenile petition
charging Appellant with 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, and viewed the Snack
Shack surveillance video recording and photographs of the damage in the
1 The video recording was not included as part of the certified record on
appeal. See Commonwealth v. Bongiorno, 905 A.2d 998, 1000-01 (Pa.
Super. 2006) (“[T]he ultimate responsibility of ensuring that the transmitted
record is complete rests squarely upon the appellant and not upon the
appellate courts.”). See also Commonwealth v. Kennedy, 151 A.3d
1117, 1127 (Pa. Super. 2016) (finding claim waived where review of issue
raised was dependent upon materials not included in the certified record).
In light of our disposition, we direct counsel on remand to ensure that this
video recording is included in the certified record.
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bathroom. At the conclusion of the hearing, the court found the testimony
of Officer McHale credible, Appellant’s alibi defense incredible, and
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,
4/10/2018.2
2 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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This timely appeal followed.3 In this Court, Appellant’s counsel filed
both an Anders brief and a petition to withdraw as counsel. Accordingly,
the following principles guide our review of this matter.
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
3 The juvenile court did not order Appellant to file a concise statement of
matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). The
juvenile court complied with Pa.R.A.P. 1925(a).
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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
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 failed to comply with the
technical requirements set forth above. Specifically, counsel failed to
provide notice to Appellant’s parents of counsel’s request to withdraw as
counsel on appeal. See Application to Withdraw Appearance, 9/26/2018
(providing certificate of service solely to Appellant and the Commonwealth).
Additionally, the record is incomplete because counsel failed to ensure the
inclusion of the video recording, which was essential evidence at trial, in the
certified record.
Accordingly, we remand. As in Heron, on remand, counsel “must
notify both [A]ppellant and his parents of the request to withdraw,
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[A]ppellant’s right to retain new counsel or proceed pro se, and his right to
raise any points he deems worthy of consideration. Counsel is directed to
file within thirty (30) days an amended petition for leave to withdraw
complying in all respects with the requirements [set forth above].” 674 A.2d
at 1140 (emphasis in original; citation omitted).
Remanded with instructions. Panel jurisdiction retained.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/17/19
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