In the Interest of: J.G., a Minor

J-S55043-16
2016 PA Super 191IN THE INTEREST OF: J.G., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
APPEAL OF: J.G., A MINOR
No. 1884 EDA 2015
Appeal from the Dispositional Order June 2, 2015
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0003238-2014
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED AUGUST 26, 2016
J.G. (hereinafter “Juvenile”) appeals from the dispositional order
entered in the Court of Common Pleas of Philadelphia County on June 2,
2015, following his delinquency adjudication for Robbery, Conspiracy, Theft
by Unlawful Taking and Simple Assault.1 Although we find Juvenile’s
challenges to the suppression court’s denial of his motion to suppress lack
merit and that his sufficiency of the evidence issue has been waived, we are
constrained to remand to provide Juvenile the opportunity to file a post-
dispositional motion nunc pro tunc challenging the weight of the evidence.
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1
18 Pa.C.S.A. §§ 3701(A)(1)(iii); 903(C); 3921(A); 2701(A), respectively.
The juvenile court dismissed a charge for possession of an instrument of
crime (PIC), 18 Pa.C.S.A. § 907(A).
*Former Justice specially assigned to the Superior Court.
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The juvenile court set forth the relevant procedural and factual history
2
herein as follows:
PROCEDURAL HISTORY
Prior to their juvenile delinquency hearing co-defendants JJ
and [Juvenile] jointly filed a motion to suppress in court and out
of court identification evidence alleging the process and
identifications violated the co-defendants' due process rights.
The motion was denied and an adjudication hearing was held
wherein defendants were adjudicated delinquent of robbery as a
felony of the second degree, conspiracy, theft, and simple
assault. This appeal followed.
STATEMENT OF FACTS
At the suppression hearing and subsequent trial, the
Commonwealth offered the testimony of the complainant and
Philadelphia Police Officers Joseph Campbell, Colin Gershert
[sic], and Jeffrey Thompson. The evidence established the
following:
On December 10, 2014, at approximately 10:30 P.M. the
complainant was walking in the area of the 6900 Block of Haines
Street in Philadelphia, Pennsylvania. (N.T. 1/20/15 pgs. 62-63)
As the complainant was walking, five young males approached
him. Id. One of the males approached the complainant from the
back, and placed his arm around the complainant's body. Id.
Another male held an unknown object to the complainant's neck
and said "give it up old head, give it up." (N.T. 1/20/15 pg. 63)
The other three males went through the complainant's pants
pockets. Id. The complainant testified that at this moment he
thought he was going to get shot for nothing. (N.T. 1/20/15 pg.
66) After approximately three minutes, there was a loud noise in
the area and the males scattered. (N.T. 1/20/15 pg. 63) The
complainant was able to see that all of the males were young,
black, and wearing dark hooded sweatshirts. (N.T. 1/20/15 pgs.
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2
The facts and procedural history are derived from the transcripts of
Juvenile’s adjudicatory hearing at which time Juvenile was tried together
with his codefendant, J.J. J.J.’s case is on appeal separately with this Court
at No. 2071 EDA 2015.
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70 -71) One male in the group stood out to the complainant
because he was wearing a red hooded sweatshirt. (N.T. 1/20/15
pg. 70)
The complainant then went directly to his home and
contacted the police. (N.T. 1/20/15 pgs. 63, 67, 10) Police
Officers arrived at the complainant's home within five minutes.
(N.T. 1/20/15 pgs. 8-9) There, the complainant told the Officers
about the incident and described the males. (N.T. 1/20/15 pgs.
9, 84) Based on the description the complainant provided, the
Officers sent out a flash description of the five assailants. (N.T.
1/20/15 pg. 9)
Officer Goshert and his partner Officer Thompson received
the flash information while at a location just two blocks from the
6900 block of Haines Street. (N.T. 1/20/15 pgs. 27) At that
location, Officer Goshert observed a group of three young black
males matching the flash information, including the defendant
JJ, who was wearing a red hood sweatshirt, [Juvenile] who was
wearing a dark hooded sweatshirt, and another young black
male wearing a dark hooded sweatshirt. Id. As Officer Goshert
and his partner, both in full uniform, approached the males, two
fled on foot while the defendant JJ remained. (N.T. 1/20/15 pgs.
27-28) Officer Thompson pursued [Juvenile] and the other male,
while Officer Goshert detained defendant JJ so that the
complaining witness could be transported to the location to make
an identification. (N.T. 1/20/15 pg. 30) After a brief chase,
[Juvenile] was apprehended and detained by Officer Thompson
so that the complaining witness could be transported to make an
identification. The complainant positively identified defendant JJ
as the same individual wearing the red hooded sweatshirt
involved in the incident, and [Juvenile] as one of the other males
wearing a dark hooded sweatshirt involved in the incident. Id.
[The juveniles] were then handcuffed and placed under arrest.
(N.T. 1/20/15 pgs. 33 -34)
Juvenile Court Opinion, filed 11/9/15, at 1-3.
On January 20, 2015, the juvenile court heard testimony on Juvenile’s
and his co-defendant’s joint motion to suppress identification and an
adjudicatory hearing immediately followed. At the conclusion of the hearing,
the juvenile court held the matter under advisement. Ultimately, the
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juvenile court entered an order adjudicating Juvenile delinquent of one
count each of the aforementioned charges on April 29, 2015. Juvenile did
not file a post-dispositional motion.
On June 26, 2016, Juvenile filed a notice of appeal. On June 30, 2015,
the juvenile court ordered Juvenile to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b), although Juvenile
had filed what he titled “Preliminary Statement of Matters Complained of on
Appeal” contemporaneously with his notice of appeal on June 26, 2015. On
November 9, 2015, the juvenile court filed an opinion pursuant to Pa.R.A.P.
1925(a).
In his brief, Juvenile presents the following Statement of Questions
Involved:
[1] Did the [juvenile] [c]ourt err by denying [Juvenile’s]
Motion to Suppress the out of court identification by the
Complainant after an unlawful stop?
[2] Did the [juvenile] [c]ourt err by denying [Juvenile’s]
Motion to Suppress the out of court identification by the
Complainant after [ ] J.G. was stopped by the police because the
identification procedure was unduly suggestive?
[3] Whether the verdict was so contrary to the weight of
the evidence as to shock one’s sense of justice when the
Commonwealth’s sole eyewitness misidentified [Juvenile] in
Court as a co-defendant[?]
[4] Whether the verdict was so contrary to the
sufficiency of the evidence when the Complainant misidentified
[Juvenile] in Court as a co-defendant.
Juvenile’s Brief at 5.
This Court’s standard of review of dispositional orders in juvenile
proceedings is well-settled. The Juvenile Act grants broad discretion to
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juvenile courts in determining appropriate dispositions. In re C.A.G., 89
A.3d 704, 709 (Pa.Super. 2014). In addition, this 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).
Juvenile’s first two issues challenge the juvenile court’s denial of his
motion to suppress the complainant’s out of court identification of Juvenile.
When reviewing a suppression order:
an appellate court is required to determine whether the record
supports the suppression court's factual findings and whether
the inferences and legal conclusions drawn by the suppression
court from those findings are appropriate. Where the record
supports the factual findings of the suppression court, we are
bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error. However, where the
appeal of the determination of the suppression court turns on
allegations of legal error, the suppression court's conclusions of
law are not binding on an appellate court, whose duty it is to
determine if the suppression court properly applied the law to
the facts.
Whether an out of court identification is to be suppressed
as unreliable, and therefore violative of due process, is
determined from the totality of the circumstances.
Suggestiveness in the identification process is a factor to be
considered in determining the admissibility of such evidence, but
suggestiveness alone does not warrant exclusion. Identification
evidence will not be suppressed unless the facts demonstrate
that the identification procedure was so impermissibly suggestive
as to give rise to a very substantial likelihood of irreparable
misidentification. Photographs used in line-ups are not unduly
suggestive if the suspect's picture does not stand out more than
the others, and the people depicted all exhibit similar facial
characteristics.
Commonwealth v. Fulmore, 25 A.3d 340, 346 (Pa.Super. 2011) (internal
citations and quotation marks omitted). Moreover, our scope of review from
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a suppression ruling is limited to the evidentiary record that was created at
the suppression hearing. In re L.J., 622 Pa. 126, 148, 79 A.3d 1073, 1086
(2013).
There are three types of encounters between law enforcement officials
and private citizens. A “mere encounter” need not be supported by any level
of suspicion but carries no official compulsion to stop or respond.
Commonwealth v. Clinton, 905 A.2d 1026, 1030 (Pa.Super. 2006), appeal
denied, 594 Pa. 685, 934 A.2d 71 (2007). An “investigative detention” must
be supported by reasonable suspicion and subjects the suspect to a stop and
a period of detention, but it does not have the coercive conditions that would
constitute an arrest. Id. The courts determine whether reasonable suspicion
exists by examining the totality of the circumstances. In the interest of
DM, 556 Pa. 160, 167, 727 A.2d 556, 559 (1999). An arrest, or “custodial
detention,” must be supported by probable cause. Clinton, 905 A.2d at
1030.
Juvenile first claims the victim’s identification of him should have been
suppressed as the “fruit of an unlawful seizure.” Juvenile’s Brief at 10.
Juvenile avers police had neither reasonable suspicion to stop nor probable
cause to arrest him as he ran from them because the information that
Officer Campbell provided over police radio failed to include a description of
the perpetrators’ height, weight, and any distinctive features or to indicate
their direction of travel. Id. at 10-11. Juvenile stresses officers observed
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him clad in dark clothing and begin to run at a different location from that
where the incident had occurred. Id. at 12.
In D.M., supra, police responded to the flash information provided by
a victim. Officers promptly arrived on the scene of a reported armed
robbery and saw several men who matched the description. When the men
saw the officers, they abruptly changed their direction and quickly walked
away. Our Supreme Court noted that the police report was particularly
reliable because it came from the victim, rather than an anonymous source.
D.M., 556 Pa. at 164-65, 727 A.2d at 558. The Court concluded that under
those circumstances, an experienced police officer reasonably would believe
that the men were engaged in criminal activity.
Instantly, we find police officers possessed reasonable suspicion of
criminal activity to justify an investigatory stop of Juvenile on December 10,
2014. Just minutes after the robbery, Officers Goshert and Thompson
encountered Juvenile walking with a group of other young African American
males within two blocks of the area where the complainant had been robbed.
Matching the description the complainant had provided police, two of the
individuals were wearing dark jackets and tan pants and one of them wore a
red, hooded sweatshirt. They began to disperse as the officers advanced.
N.T., 1/10/15, at 28, 46. In addition, upon seeing the officers, Juvenile and
another fled on foot in opposite directions. Id. Juvenile hid under a car in
effort to avoid police detection. Id. at 48.
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In light of these facts, the juvenile court did not err in denying
Juvenile’s suppression motion on the basis that he had been unlawfully
seized. See Commonwealth v. Ellis, 541 Pa. 285, 296, 662 A.2d 1043,
1049 (1995) (police may briefly detain a suspect in order to allow an on-
scene identification). Juvenile and his companions matched the race of the
suspects, were traveling in a group and were dressed as described in the
flash broadcast over police radio. Officers observed Juvenile and his cohorts
just about two blocks away within minutes of the crime. In addition,
Juvenile acted evasively when he saw the police vehicle. See In re D.M.,
556 Pa. 160, 165, 727 A.2d 556, 558 (1999).
Juvenile next maintains the identification procedure had been unduly
suggestive. Juvenile’s Brief at 13. Juvenile posits that in light of the fact
the complainant identified Juvenile while Juvenile was in the presence of
multiple police officers, even though he had not been handcuffed, and
admitted at the adjudicatory hearing that he primarily based his
identification upon the clothing Juvenile wore, his identification is not
reliable. Juvenile’s Brief at 14-15.
This Court has found that “on-scene, one-on-one identifications, even
where an appellant is handcuffed and officers ask a victim to identify him as
the perpetrator, are not so suggestive as to give rise to an irreparable
likelihood of misidentification.” Commonwealth v. Armstrong, 74 A.3d
228, 239 (Pa.Super. 2013) (citation and internal quotation marks omitted),
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appeal granted on other grounds, 623 Pa. 560, 83 A.3d 411 (Jan. 8, 2014).
Herein, the complainant testified that he was able to identify the males by
their clothing and their complexion. He also informed the juvenile court he
saw the face of the individual wearing the red jacket, and that the person
holding the instrument to his neck was a light-skinned African American.
N.T., 1/20/15, at 70, 76. He explained he does not wear glasses and was
not intoxicated at the time of his identification which occurred within several
minutes of the incident. Id. at 71.
Appellant’s argument conflates an unduly suggestive identification
process with the weight to be afforded a witness’ identification. See
Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa.Super. 2012) (holding
allegations the victim was not sufficiently lucid to make a pretrial
identification go to the weight of the evidence and not to the admissibility of
the identification). In this regard, the trial court correctly reasoned as
follows:
[T]he totality of the circumstances surrounding the victim’s
identifications, particularly the promptness with which they were
completed, indicated to this court that the out of court
identifications were completely reliable. There was no evidence
presented that indicated the presence of special elements of
unfairness that would have given rise to an irreparable likelihood
of misidentification by the witness. While one on one
confrontations between the suspect and victim are highly
suggestive, an on the scene identification made shortly after the
occurrence of the crime does not, by itself, offend a suspect’s
due process rights. Commonwealth v. Moye, 836 A.2d 973(Pa.Super. 2003). Officer Goshert testified that the complainant
identified the defendant JJ without hesitation as the perpetrator
in the red hooded sweatshirt, and [Juvenile] as one of the
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perpetrators in a dark hooded sweatshirt within minutes of the
incident. (N.T. 1/20/1015 [sic] pg. 30). Additionally, no
corrupting effect was shown to have resulted from the on the
scene identification. Finding no special elements of unfairness,
coupled with the close proximity in time and place to the actual
offense, the identification procedure so enhances the reliability
of the on the scene identification as to outweigh any possibility
of irreparable misidentification that might arise from the witness’
observance of the suspect in police custody. See,
Commownealth v. Allen, 429 A.2d 1113 (Pa.Super. 1981).
Juvenile Court Opinion, filed 11/9/15, at 4-5. Upon our review of the
record, we agree with the juvenile court and reject Juvenile’s claim.
Next, Juvenile asserts the verdict was against the weight of the
evidence in light of the complainant’s misidentification of Juvenile at the
adjudicatory hearing as the individual wearing the red jacket. Juvenile
maintains the complainant’s statement that he had based his identification
upon the clothing the juveniles were wearing rather than their actual faces
shocks one’s sense of justice. Juvenile’s Brief at 15.
This Court applies the same standard for reviewing weight of the
evidence claims in juvenile cases as those involving adults. In re R.N., 951
A.2d 363, 370 (Pa.Super. 2008), called into question on other grounds, In
re J.B., 106 A.3d 76 (Pa. 2014). An allegation that the verdict is against
the weight of the evidence is addressed to the discretion of the trial court.
Commonwealth v. Ramtahal, 613 Pa. 316, 33 A.3d 602 (2011). “An
appellate court, therefore, reviews the exercise of discretion, not the
underlying question whether the verdict is against the weight of the
evidence.” Id. 613 Pa. at 327-28, 33 A.3d at 609. Moreover, a court’s
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denial of a motion for a new trial based upon a weight of the evidence claim
is the least assailable of its rulings. Commonwealth v. Rivera, 603 Pa.
340, 363, 983 A.2d 1211, 1225 (2009).
While the comment to Pa.R.Crim.P. 607(A) specifies that weight of the
evidence claims in criminal proceedings are waived unless they are raised
with the trial court in a motion for a new trial, “the Pennsylvania Rules of
Juvenile Procedure have no counterpart requiring the same manner of
preservation.” In re J.B., ___ Pa. ___, ____, 106 A.3d 76, 91 (2014).
Indeed, “the current Rules of Juvenile Court Procedure—which ‘govern
delinquency proceedings in all courts'—are utterly silent as to how a weight
of the evidence claim must be presented to the juvenile court so that it may
rule on the claim in the first instance, which is ... a necessary prerequisite
for appellate review.” Id. ___ Pa. at ____, 106 A.3d at 98 (footnote
omitted). Pa.R.J.C.P. 620(A)(2) governs the filing of what it expressly
designates as an “optional post-dispositional motion.” See Pa.R.J.C.P.
620(A)(2) (“Issues raised before or during the adjudicatory hearing shall be
deemed preserved for appeal whether or not the party elects to file a post-
dispositional motion on those issues”).
Herein, Juvenile did not file an optional post-dispositional motion
pursuant to Pa.R.J.C.P. 620 alleging that the verdict was against the weight
of the evidence nor did he otherwise raise such a challenge prior to the
juvenile court’s entry of its dispositional order. Instead, Juvenile presented
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his weight of the evidence claim for the first time in his Pa.R.A.P. 1925(b)
statement. However, the juvenile court did not consider the merits of this
issue in its Pa.R.A.P. 1925(a) opinion and focused its analysis upon
Juvenile’s challenge to the sufficiency of the evidence. See Juvenile Court
Opinion, filed 11/9/15, at 5-6.3 Under such circumstances, we are
compelled by controlling precedent to remand the matter to the juvenile
court to allow Juvenile to file a post-dispositional motion nunc pro tunc. In
re J.B., ___ Pa. at ____, 106 A.3d at 99.4
Finally we address Juvenile’s contention the verdict was “contrary to
the sufficiency of the evidence.” Brief of Juvenile at 16. Essentially, Juvenile
avers the evidence when viewed in a light most favorable to the
Commonwealth as the verdict winner was “unreliable and contradictory”
because complainant identified Juvenile by his “race and the description of a
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3
While the Commonwealth acknowledges the holding of In re J.B., and
concedes challenges to the sufficiency and weight of the evidence are
distinct, the Commonwealth combines its discussion of Juvenile’s challenges
in its brief in the interest of avoiding repetition. See Brief for Appellee at 13
n.2; 14-18.
4
Then-Justice Stevens filed a dissent wherein he stressed he would have
found J.B. had waived his weight of the evidence claim for failure to raise it
properly in the juvenile court below and specifically disagreed with any
suggestion by the Majority that J.B. may have avoided waiver by raising his
weight claim for the first time in his Pa.R.A.P. 1925(b) statement, as it is his
view that Pennsylvania law clearly provides a Pa.R.A.P. 1925(b) statement
may not be used as a vehicle to resurrect previously waived claims. In re
J.B., ___ Pa. at ____, 106 A.3d at 102 (Stevens, J. dissenting).
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jacket” and “misidentified [Juvenile] in court and stated he wore the red
jacket during the crime.” Juvenile’s Brief at 17.
When examining a challenge to the sufficiency of the evidence
supporting an adjudication of delinquency, this Court employs a well-settled
standard of review:
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, 348–349 (Pa.Super. 2013) (quoting In re A.V., 48
A.3d 1251, 1252–1253 (Pa.Super. 2012)). 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). Herein, we first consider
whether Juvenile has waived this issue.
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Pennsylvania Rule of Appellate Procedure 1925(b) provides, inter alia,
“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived.”
Pa.R.A.P.1925(b)(4)(vii).5 In Commonwealth v. Garland, 63 A.3d 339(Pa.Super. 2013), this Court found the appellant had waived his sufficiency
of the evidence claim where his 1925(b) statement simply averred the
evidence was legally insufficient to support the convictions and in doing so
reasoned:
In order to preserve a challenge to the sufficiency of the
evidence on appeal, an appellant's Rule 1925(b) statement must
state with specificity the element or elements upon which the
appellant alleges that the evidence was insufficient. “Such
specificity is of particular importance in cases where, as here,
the appellant was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth must
prove beyond a reasonable doubt.” Here, as is evident, [the
a]ppellant ... failed to specify which elements he was challenging
in his Rule 1925(b) statement .... Thus, we find [his] sufficiency
claim waived on this basis.
Id. at 344 (citations omitted).
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5
Rule 1925(b)(4) provides:
Requirements; waiver.
***
(ii) The Statement shall concisely identify each ruling or error
that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge. The judge shall not
require the citation to authorities; however, appellant may
choose to include pertinent authorities in the Statement.
Pa.R.A.P. 1925(b)(4)(ii).
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In his concise statement, Juvenile’s sufficiency and weight of the
evidence challenges read verbatim as follows:6
Counsel intends to raise a claim that the verdicts were
against the sufficiency of the evidence where the complaining
witness presented by the Commonwealth at trial was the
[victim] who identified [Juvenile] as the person wearing the
clothes by the co-defendant [J.J.] at the time or arrest. He also
testified that co-defendant [J.J.] was wearing the clothes of
[Juvenile] at the time of arrest.
Juvenile’s Preliminary Statement of Matters Complained of on Appeal, filed
6/26/16, at ¶ 2.
Juvenile was adjudicated delinquent of four crimes each of which
contained numerous elements, yet in his concise statement he merely
repeated his weight of the evidence challenge and failed clearly to state any
element upon which he alleged the evidence was insufficient. Therefore,
Juvenile has waived this final issue. See Garland, supra.7
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6
Juvenile merely replaced “weight of the evidence” with “sufficiency of the
evidence” See Preliminary Statement of Matters Complained of on Appeal at
¶¶ 1-2.
7
We note that even had Juvenile properly preserved this issue in his
“1925(b) Statement,” he devotes just one paragraph of argument to this
claim in his appellate brief wherein he reiterates his general averments in
support of his challenge to the weight of the evidence and again fails to
specify which element(s) of which crime(s) for which the evidence had been
insufficient; therefore, this claim is further waived for utter lack of
development. See Pa.R.A.P. 2119(a), (b) (requiring a properly developed
argument for each question presented including a discussion of and citation
to authorities in appellate brief); Commonwealth v. Buterbaugh, 91 A.3d
1247, 1262 (Pa.Super. 2014) (en banc) (failure to conform to the Rules of
Appellate Procedure results in waiver of the underlying issue).
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Case remanded for proceedings consistent with this Opinion.
Jurisdiction is relinquished.
Judge Dubow joins the Opinion.
Judge Lazarus files a Concurring/Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/26/2016
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