In Re: C.W., Juvenile Appeal of: C.W., Juveni

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
C.W., JUVENILE
Appellant No. 3470 EDA 2014
Appeal from the Dispositional Order November 5, 2014
In the Court of Common Pleas of Lehigh County
Juvenile Division at No(s): CP-39-JV-0000302-2014
SID NO. 41678445
BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J.* FILED JUNE 27, 2016
CONCURRING AND DISSENTING MEMORANDUM BY FITZGERALD, J.:
I concur with the majority decision to affirm the denial of Appellant’s
suppression motion. I also agree the evidence was sufficient to establish
Appellant was an accomplice to the harassment of N.G. However, I
respectfully dissent from the majority’s decision to affirm the adjudication of
delinquency for ethnic intimidation. In my view, the juvenile court’s findings
do not support the conclusion that Appellant “with the intent of promoting or
facilitating the offense” solicited, aided in, agreed to, or attempted to aid in
planning or commission of that offense. See 18 Pa.C.S. § 306(b)(3), (c).
A review of the evidence presented at the adjudication hearing
established the following. Approximately two days before the incident in
*
Former Justice specially assigned to the Superior Court.
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question, Appellant complimented N.G. on a deck of cards N.G. was
shuffling. N.T. Adjudication Hr’g 10/15/14, at 132. N.G. described that
interaction as “fairly positive.” Id. N.G. had no prior contact with F.R. or
J.W.
On the day in question, N.G was playing cards with his friend, G.S., in
study hall, and G.Z. joined them at their table.1 Before the events captured
on the video recording, Appellant, J.W., and F.R. entered the study hall and
were “hanging around [N.G.’s] table” and “messing around.” Id. at 133.
F.R. asked to see G.Z.’s cellphone. Id. F.R. ran out of the room with it, but
returned and gave the phone back to G.Z. N.G. testified that he was not a
target of this teasing. Id. at 134. Later, Appellant was “off to the side” of
the group, asked to play in the card game, and, according to N.G., “wasn’t
doing anything harmful.” Id. at 142.
The video recording, Commonwealth’s Exhibit 1, showed the following.
F.R’s smartphone camera turns on and focuses on J.W. See
Commonwealth’s Ex. 1, at 00:01. Appellant is seen briefly either at the
same table as N.G. N.T. at 97. F.R., who is holding the camera, narrates
that the recording is a “smack cam,” and F.R. and J.W. discuss whether it is
part three or four. Commonwealth’s Ex. 1 at 00:05. F.R. focuses the
camera on N.G. and states “mop that shit.” Id. at 00:21. J.W. strikes N.G.
1
As it is relevant to this appeal, N.G. and G.Z. are Caucasian, and G.S. is
Hispanic. F.R. is Hispanic and J.W. and Appellant are African-American. The
study hall was held in a cafeteria.
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F.R. stands in place and narrates as J.W. runs away, laughing, down the
hallway behind F.R. F.R. softly states “I’m about to jack his phone,” then
hands the camera to Appellant. Id. at 00:44. F.R. repeatedly uses the term
“nigger” when referring to N.G. and G.Z.
Appellant continues recording as F.R. and J.W. stand back from N.G.’s
table and F.R. approaches N.G. Id. at 00:44-00:58. F.R. plays with N.G.’s
hair, and states he could be his daughter. Appellant can be heard laughing
on camera. Id. at 01:00-01:10. F.R. and J.W. then stand around N.G. and
G.Z. and ask for their cellphones. Id. at 01:17. Appellant begins moaning
or sighing. Id. at 01:44. He briefly zooms in on N.G. as J.W. is talking to
N.G. Id. at 02:00. Appellant apparently places the camera on or near the
table. Id. at 02:11. F.R. takes the camera and aims it at G.Z. F.R. states,
“pink ass nigger” as he pinches his fingers around the image of G.Z.’s head
on the camera. Id. at 02:24; see also Aff. of Probable Cause, 5/1/14, at 2.
The recording ends.
Additionally, the juvenile court received the following testimony. A
school guidance counselor spoke to F.R. after the incident and testified that
F.R. denied choosing the victims of the “smack cam.” F.R. told the guidance
counselor that “the kid who filmed the video”—presumably referring to
Appellant—selected them, “probably because they were white [and] they are
pussies.” Id. at 117, 119.
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Detective Bill Williams described his investigation, identified the parties
on the recording, narrated portions of the events depicted, and opined that
the term “pink” was a pejorative term for a Caucasian. The detective
authenticated Appellant’s and J.W.’s handwritten apologies,2 which were
entered into the record.
Appellant’s statement, in it’s original form, read:
I know you guys are probably mad at the fact that my
friends were making front of you because your race and
how different ya’ll look from every body else, and when
one of my friends slaped cam you, and tryed to take you
guys phone. I’m sincely sorry for recording and provicing
the situation because if someone do the same thing to me
I would be mad especially if someone was recording. But
when I came over and ask to play cards I didn’t mean
them to come over even though I should have told them to
stop I recorded so I’m sorry and I hope ya’ll feel generous
to accepted my apolgey because when they left and I
stoped recording I got to know yall really well.
Commonwealth’s Ex. 2.
On redirect examination of Detective Williams by the Commonwealth,
the following exchange occurred:
[Commonwealth]. [E]verybody has asked you about
“pink” and they asked you specifically and also about in
your affidavit of probable cause because you addressed
the issue of “pink” in your affidavit. Is that correct?
[Detective Williams]. Yes.
2
J.W. stated, in part, “we saw these boys playing cards we started talking to
them then we started making fun of them then a boy came in ask about a
smack cam then we chose these boys because they were much smaller than
us and looked different from us then we started recording . . .”
Commonwealth’s Ex. 3.
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Q. And, in fact, this is admitted into evidence at this point,
so you write that [Appellant], J.[W.] and F.[R.] started
making fun of the boy because of their race, statute and
appearance such as the glasses they were wearing, they
used racial terms like “pink” and Harry Potter looking
mother fucker, all parties understood “pink” to be a slang
term for a white person. That’s in your affidavit of
probable cause. Right?
A. Yes.
Id. at 99-100.
The detective later clarified to whom he spoke regarding the term
“pink”. Id. at 106.
[T]he reference -- when I spoke with [Appellant], he
explained that there was a pretext to this event that was
not captured on the video and it was that pretext of this
event where the boys were selected for what was going to
happen to them and then among that selection criteria was
the comments of the Harry Potter looking person, the
reference to “pink” and that was explained as a racial term
and set in the context of as the subsequent video
supported that everybody knew what was about to happen
and why. And that is why I framed it in that context.
Id. The detective, in his affidavit of probable cause, previously indicated
that Appellant and J.W. “said they selected the victims because they looked
different, appeared weak, and were white.”3 Aff. of Probable Cause at 2.
3
The detective also authored a supplemental offense report that indicated
Appellant, J.W., and F.R. “started cutting on the boys because of their race,
stature and appearance such as the glasses they were wearing” and used
racial terms like “pink” and “Harry Potter looking motherfucker.”
Supplemental Report, 5/1/14, at 3. That incident allegedly occurred before
the F.R. took G.Z.’s phone and before the video recording.
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The Commonwealth, in closing arguments, asserted all three juveniles,
F.R., J.W., and Appellant, attributed their involvement in the incident to
race, noting in relevant part that C.W. stated that “his friends were making
fun of you because of your race . . . .” N.T. at 175. In discussing F.R. and
J.W., the Commonwealth argued F.R. uttered the slur “pink,” emphasized
they were “acting out of a desire, a malicious intent towards the race of the
two white kids at the table[,]” and noted F.R. and J.W. did not harass G.S.,
N.G.’s Hispanic friend. Id. at 176. Appellant’s case, the Commonwealth
observed, was “more complicated.” Id. It argued that Appellant was aware
that “something [wa]s going on before this and . . . these guys are being
targeted for their race.” Id. at 177. The Commonwealth argued:
So, once you know that these kids are getting picked on
for being white and you decide to hang around and then
you decide to videotape it so we can put it on Facebook so
everybody can get a good laugh about it later, you’re an
accomplice.
Id.
The juvenile court adjudicated Appellant delinquent for harassment
and ethnic intimidation. With respect to ethnic intimidation, the court
determined that “[i]t is clear that [Appellant] acted as an accomplice in the
harassment and that he was fully aware that N.G. was selected, at least in
part, due to his race.” See Juvenile Ct. Op., 6/5/15, at 21. Although the
majority affirms the adjudication for ethnic intimidation on that basis, I
respectfully disagree.
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Ethnic intimidation requires proof beyond a reasonable doubt that an
individual committed a predicate offense—here, harassment—and did so
“with malicious intention.” See 18 Pa.C.S. § 2710(a); Commonwealth v.
Sinnott, 30 A.3d 1105, 1111 (Pa. 2011). “‘Malicious intention’ means the
intention to commit any act, the commission of which is a necessary element
of [the predicate offense] motivated by hatred toward the race, color,
religion or national origin of another individual of group of individuals.” 18
Pa.C.S. § 2710(c) (emphasis added). The required “racial animus” need not
be the sole motivation for the commission of the act, and once established,
its existence “cannot be negated by establishing that a second intent
coexisted in the mind of the actor.” Sinnott, 30 A.3d at 1110.
The Pennsylvania Crimes Code defines accomplice liability as follows:
(b) Conduct of another.—A person is legally accountable
for the conduct of another person when:
(1) acting with the kind of culpability that is sufficient
for the commission of the offense, he causes an
innocent or irresponsible person to engage in such
conduct;
(2) he is made accountable for the conduct of such
other person by this title or by the law defining the
offense; or
(3) he is an accomplice of such other person in the
commission of the offense.
(c) Accomplice defined.—A person is an accomplice of
another person in the commission of an offense if:
(1) with the intent of promoting or facilitating the
commission of the offense, he:
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(i) solicits such other person to commit it; or
(ii) aids or agrees or attempts to aid such other
person in planning or committing it; or
(2) his conduct is expressly declared by law to
establish his complicity.
18 Pa.C.S. § 306(b)-(c).
The Pennsylvania Supreme Court has noted that Section 306 is
modeled after the Model Penal Code, which has been criticized for its lack of
clarity. See Commonwealth v. Roebuck, 32 A.3d 613, 621 (Pa. 2011).
The Pennsylvania Supreme Court, however, has provided guidance in two
decisions regarding accomplice liability: Roebuck and Commonwealth v.
Knox, 105 A.3d 1194, 1196-97 (Pa. 2014).
In Roebuck, the defendant participated with others in luring the
victim to an apartment complex, where he was ambushed, shot, and
mortally wounded. Roebuck, 32 A.3d at 614. The defendant did not shoot
the victim. Id. He was convicted of murder of the third-degree as an
accomplice. Id. On appeal, the defendant asserted that his conviction was
a logical impossibility because:
accomplice liability attaches only where the defendant
intends to facilitate or promote an underlying offense;
third-degree murder is an unintentional killing committed
with malice; therefore, to adjudge a criminal defendant
guilty of third-degree murder as an accomplice would be to
accept that the accused intended to aid an unintentional
act . . . .
Id.
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This Court affirmed, holding that the “complicity theory applies in
third-degree murder scenarios—even if homicide was not the intended
underlying crime—where the intentional acts demonstrate a disregard for
human life amounting to malice.” Id. at 615. The Roebuck Court granted
allowance of appeal.
The Roebuck Court rejected the defendant’s logical impossibility
argument, noting:
Section 306(d) of the Crimes Code directs the focus, for
result-based elements, to the level of culpability required
of a principal.[4] In the present factual scenario, the
purport is to avoid elevating a recklessness-oriented
culpability requirement to a purposeful one relative to an
accomplice. The policy basis for such treatment is readily
discernable,[ ] and a homicide committed with the degree
of recklessness predicate to murder provides a
paradigmatic example.
Id. at 621.
Thus, the Roebuck Court concluded that with respect to “results”
accomplice liability could be sustained based upon “recklessness” as to the
result. Id. However, the Court further suggested that an individual must be
4
Section 306(d) states:
Culpability of accomplice.—When causing a particular
result is an element of an offense, an accomplice in the
conduct causing such result is an accomplice in the
commission of that offense, if he acts with the kind of
culpability, if any, with respect to that result that is
sufficient for the commission of the offense.
18 Pa.C.S. § 306(d).
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an “accomplice to the conduct,” i.e., “aids another in planning or committing
the conduct with the purpose of promoting or facilitating it.” See id. at 620
(discussing the Model Penal Code). The Court observed that “the
interconnection between accomplice mens rea and the mental state required
of a principal actor represents an important restraint on accountability. In
terms of such limiting principles, it is also necessary to determine whether
the principal has taken actions beyond those that the accomplice intended.”
Id. at 619 n.11.
In Knox, the Pennsylvania Supreme Court again expounded on the
scope of accomplice liability. In that case, the defendant was unarmed when
he and his identical twin brother approached a vehicle. Commonwealth v.
Knox, 50 A.3d 749, 752 (Pa. Super. 2012). His brother ordered the driver
to “get out” and lifted his shirt to reveal a firearm. Id. When the driver did
not comply, the defendant’s brother drew the firearm, aimed it at the
driver’s head, and eventually fired the weapon as the driver attempted to
flee in his vehicle. Id. The driver was mortally wounded. Id. Two
witnesses identified the defendant and his brother as the perpetrators and
specifically identified defendant’s brother as the shooter. Id.The defendant was convicted of second-degree murder and carrying a
firearm without a license. Of relevance to this appeal, this Court affirmed
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the conviction for carrying a firearm without a license based on co-
conspirator and accomplice liability.5 Id. at 757-58.
The Pennsylvania Supreme Court, in Knox, granted allowance of
appeal to consider the sufficiency of the evidence underlying the defendant’s
conviction for carrying a firearm without a license, when the defendant did
not possess the firearm. Commonwealth v. Knox, 68 A.3d 323 (Pa. 2013)
(order). Although the Knox Court affirmed the conviction based on co-
conspiracy liability, it addressed accomplice liability as follows.
Per the express terms of the Crimes Code,[ ] however,
accomplice liability has been made offense-specific.
Accordingly, the general rule is that a person is an
accomplice of another in the commission of “an offense” if,
acting with the intent to promote or facilitate the
commission of “the offense,” he solicits the other person to
commit it or aids, agrees, or attempts to aid the other
person in planning or committing it. 18 Pa.C.S. § 306(c).
The broader approaches—including the common-design
theory and the related precept that an accomplice was
liable for all of natural and probable consequences of the
principal’s actions in the commission of a target offense—
were supplanted by the General Assembly with the
adoption of the Crimes Code and its incorporation of core
restraints on criminal liability taken from the Model Penal
Code. See generally Commonwealth v. Roebuck, 612
Pa. 642, 651-56, 32 A.3d 613, 618-22 (2011) (discussing
the interrelationship between the culpability provisions of
the Crimes Code and the Model Penal Code in terms of the
treatment of accomplice liability).
5
In Knox, this Court also affirmed the conviction for second-degree murder,
but vacated the then-mandatory life sentence for second-degree murder
based on Miller v. Alabama, 132 S. Ct. 2455 (2012). Knox, 50 A.3d at
752.
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In particular, the salient terms of Section 306 of the
Crimes Code (“Liability for conduct of another; complicity”)
are derived from Section 2.06 of the Model Penal Code,
which expressly rejected the expansive common-design
and natural-and-probable-consequences doctrines,
refocusing liability for complicity squarely upon intent and
conduct, not merely results. See AMERICAN LAW
INSTITUTE, MODEL PENAL CODE AND COMMENTARIES §
2.06 cmt. 6(b), at 312 (1985) (“[T]he liability of an
accomplice ought not to be extended beyond the purposes
that he shares. Probabilities have an important evidential
bearing on these issues; to make them independently
sufficient is to predicate the liability on negligence when,
for good reason, more is normally required before liability
is found.”).[ ] After the passage of the Crimes Code,
status as an accomplice relative to some crimes within a
larger criminal undertaking or episode no longer per se
renders a defendant liable as an accomplice for all other
crimes committed. See Commonwealth v. Flanagan,
578 Pa. 587, 607–08 & n. 11, 854 A.2d 489, 501 & n. 11
(2004). Rather, closer, offense-specific analysis of intent
and conduct is required.[ ]
Knox, 105 A.3d at 1196-97. Knox thus emphasized accomplice liability as
requiring a “focused examination,” which in that case required a
determination regarding whether the defendant, “acting with the intent to
promote or facilitate his brother’s unlicensed carrying of a concealed firearm,
solicited his brother to commit such offense or aided, agreed, or attempted
to aid his brother in doing.” Id. at 1197 (citation omitted).
Lastly, with respect to culpability, the Crimes Code provides:
(1) A person acts intentionally with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct or a
result thereof, it is his conscious object to engage
in conduct of that nature or to cause such a result;
and
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(ii) if the element involves the attendant circumstances,
he is aware of the existence of such
circumstances or he believes or hopes that they
exist.
(2) A person acts knowingly with respect to a material
element of an offense when:
(i) if the element involves the nature of his conduct or
the attendant circumstances, he is aware that his
conduct is of that nature or that such circumstances
exist; and
(ii) if the element involves a result of his conduct, he is
aware that it is practically certain that his conduct will
cause such a result.
18 Pa.C.S. § 302(b)(1)-(2) (emphasis added).
The parsing of an offense into elements (“conduct,” “attendant
circumstances,” and “result”) and applying the concepts of culpability
(“purposeful,” “knowing,” “reckless,” and “negligent”) to each element is
sometimes a difficult task. See Roebuck, 32 A.3d at 620. Instantly, as to
harassment, the conduct is the “strik[ing]” or “engag[ing] in a course of
conduct or repeatedly commit[ting] acts which serve no legitimate
purpose[.]” See 18 Pa.C.S. § 2709(a)(1), (3). “Culpability” for harassment
is the “intent to harass, annoy or alarm another.” Id. As to ethnic
intimidation, the conduct is the commission of a predicate offense, i.e.,
harassment with “malicious intention.” 18 Pa.C.S. § 2710(a). The
“culpability” for ethnic intimidation refers to two mental states: (1) “the
intention to commit any act,” which is an element of the predicate offense,
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and (2) the act be “motivated by hatred” toward race. Id. § 2710(c)
(emphasis added).
Instantly, I agree that the record, when read in a light most
favorable to the Commonwealth, established that Appellant acted with an
intent to promote or facilitate the harassment of N.G. After F.R. recorded
J.W. striking N.G, Appellant moved from his seat at N.G.’s table and took
F.R.’s cellphone to record the incident. F.R. stated he was going to “jack”
N.G. or G.Z.’s cellphones. Appellant continued to record as J.W. and F.R.
lingered around the table and then confronted N.G. and G.Z. anew.
Appellant giggled as F.R. teased N.G. about his hair and F.R. and J.W. asked
N.G. and G.Z. for their cell phones. Read in a light most favorable to the
Commonwealth, this evidence establishes an intent to promote the
harassment.
However, because an accomplice must have a “conscious object” to
promoting or facilitating the principal offense, I do not agree a finding
Appellant was “fully aware” of his cohorts’ alleged malicious intent is
sufficient to sustain the conviction. Such a finding expands accomplice
liability beyond the “conscious object” standard and would apply a broader
“knowing” standard with respect to the nature of the conduct of the principal
offense, or transform the malicious intent element from a specific state of
mind to an “attendant circumstance.” See 18 Pa.C.S. § 302(b)(1)-(2).
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I acknowledge that Detective Williams and F.R.’s statements
suggested that Appellant was involved in the selection of the victims based
on race. However, the juvenile court did not find that Appellant planned or
agreed to aid his cohorts in their racial animus, nor is there any indication
the court credited or weighed those statements in reaching its findings.6
Thus, I respectfully dissent from the decision to affirm the adjudication
of delinquency for ethnic intimidation.
6
Although there was evidence that Appellant stopped recording before F.R.
uttered the slur “pink” and some indication that Appellant sat down at the
table after the incident and stayed with N.G., the juvenile court did not
discuss or render a finding on that evidence. See Commonwealth’s Ex. 2
(indicating C.W. apologized, in part, because “when they [F.R. and C.W.] left
and I stoped recording I got to know yall really well.”) Therefore, such
evidence does not affect this review of the sufficiency of the evidence. See
In re C.R., 113 A.3d 328, 333-34 (Pa. Super. 2015).
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