In The Interest of J.B., Appeal of: J.B.

J-A13020-16
2016 PA Super 198IN THE INTEREST OF: J.B. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: J.B.
No. 980 WDA 2015
Appeal from the Dispositional Order Entered May 18, 2012
In the Court of Common Pleas of Lawrence County
Juvenile Division at No: 113 of 2011
BEFORE: OLSON, STABILE, and MUSMANNO, JJ.
OPINION BY STABILE, J.: FILED SEPTEMBER 1, 2016
Appellant, J.B., appeals from the May 18, 2012 order of disposition.
We affirm.
This action arises from the February 20, 2009 murder of K.M.H. (the
“Victim”). On that date, the Victim was engaged to and living with C.B.,
Appellant’s father, in a rented two-story farmhouse situated near wooded
areas and farmland in Wampum, Pennsylvania. Appellant (then 11 years
old) and the Victim’s two daughters, J.H. (then age 7) and A.H. (then age 4)
also lived in the house. The Victim was eight months pregnant.
A light snowfall covered the ground that morning. C.B. left for work at
6:45 a.m. and arrived around 7:00 a.m. N.T. Adjudication Hearing,
4/11/2012 at 146-47. State police subsequently confirmed that C.B. was at
work during the commission of the crime and C.B.’s hands tested negative
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for gunshot residue. Id. at 63, 82, 138, 147. Police quickly eliminated C.B.
as a suspect.
In preparation for their new baby, C.B. and the Victim were trading
bedrooms with Appellant. They were relocating their belongings from their
first floor bedroom to Appellant’s upstairs bedroom. The upstairs bedroom
adjoined a smaller bedroom the couple intended to use as a nursery.
Appellant was moving to the first floor bedroom. N.T. Adjudication Hearing,
4/10/2012 at 95, 108; N.T. Adjudication Hearing, 4/11/2012 at 68-69. On
the morning of the murder, Appellant had to go downstairs to get dressed
because his clothes had been moved to the first floor bedroom. N.T.
Adjudication Hearing, 4/11/2012 at 68-69.
Appellant gave a statement to Trooper Janice Wilson, of the
Pennsylvania State Police, describing his actions on the morning of the
murder. Appellant said he awoke in the upstairs bedroom, retrieved clothes
from the downstairs bedroom, and dressed in a downstairs bathroom. Id. at
69. Once he was dressed and ready, Appellant and J.H. sat on the couch
watching television. Id. A.H. was still asleep. Id. at 66. Appellant heard
the Victim click her cell phone either open or shut, presumably to check the
time. Id. at 69-70. According to Appellant, the Victim told him and J.H. to
leave or they would miss the bus. Id. at 70. Appellant and J.H. left the
house at 8:13-8:14 a.m. Id. at 89. As Appellant traversed the driveway,
he noticed a large black truck parked by the garage. Id. at 65-66.
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The school bus driver testified that Appellant and J.H. were about a
third of the way down the driveway as the bus approached, with Appellant
leading J.H. by about ten yards. N.T. Adjudication Hearing, 4/10/2012 at
152. Normally, they were halfway or three quarters of the way down their
long driveway as the bus approached. Id. at 151. As the children ran
toward the bus, the driver did not observe either child stray from the
driveway or discard anything. Id. at 153-56. Appellant and J.H. took their
assigned seats and exhibited no unusual behavior. Id.
Just after 9:00 a.m., a tree service crew arrived at the residence to
collect firewood purchased from the property owner. Id. at 13-14, 19, 150.
The driveway was the only way in or out of the property by vehicle. Id. at
42; N.T. Adjudication Hearing, 4/11/2012 at 147. The crew came in three
trucks, with Steven Cable’s truck in the lead. N.T. Adjudication Hearing,
4/10/2012 at 14, 20. Cable, the owner of the tree service, observed a light
coating of snow on the driveway approximately 1/8 to 1/4 of an inch in
depth. Id. at 20. Cable did not observe any tire tracks in the driveway. Id.
at 17, 31. He did observe two sets of children’s footprints in the center of
the driveway. Id. at 21-22, 38. Shortly after the crew began its work,
Cable noticed a little girl (A.H.) at the door crying. Id. at 23. As Cable
approached, A.H. told him “her mother was dead.” Id. at 25. Cable was
unable to reach the property owner to get permission to enter the residence,
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so he called 911. Id. at 25. Cable remained at the door with A.H. until
police arrived. Id. at 26.
Trooper Harry Gustafson and Corporal Jeremy Bowser of the
Pennsylvania State Police arrived at 10:13 a.m. Id. at 43-46. Trooper
Gustafson entered the house and observed the Victim lying on her left side
in a large pool of blood on the bed in the first-floor bedroom. Id. at 49, 71.
The cause of the injury was not immediately apparent, but the Victim was
obviously dead. Id. at 49-50. Trooper Gustafson immediately summoned
paramedics. While awaiting their arrival, Trooper Gustafson and his partner
took turns using a valve mask in an attempt to get air to the unborn baby.
Id. While that effort was ongoing, Trooper Gustafson heard A.H. talking.
Id. at 59. Trooper Gustafson investigated and found A.H. talking on a cell
phone. Id. Trooper Gustafson asked A.H. for the phone and spoke to the
caller. Id. at 59-60. It was the Mohawk Elementary School nurse calling
the Victim to inform her that Appellant was ill and wanted to come home.
Id. at 59-60. Trooper Gustafson identified himself, explained that he was
investigating a serious situation, and asked the nurse to keep Appellant at
school until police could arrange for someone to pick him up. Id. at 60.
The paramedics arrived at 10:40 a.m. Their examination revealed a
gunshot wound to the back of the Victim’s neck. Id. at 82, 85. Neither the
Victim nor her unborn child displayed any vital signs. Id. at 81. Paramedics
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notified the coroner’s office, and the Victim and her unborn child were
pronounced dead. Id. at 81.
Corporal Andrew Pannelle of the Pennsylvania State Police Forensic
Services Unit testified that he arrived at the scene around noon, and, after
obtaining a search warrant, he examined the interior and exterior of the
residence. Id. at 89-90. As Corporal Pannelle did an initial walk through of
the residence for security purposes, he observed the Victim lying on the bed
in the first floor bedroom. Id. He testified that he did not notice any signs
of forced entry or signs of a struggle in the residence. Id. at 93. Corporal
Pannelle did not notice any obvious evidence outside the residence. Id. at
96-97. Corporal Pannelle testified that all of the doors to the house were
unlocked. Id. at 124. He opened the doors to the armoire in the first floor
bedroom and found a gun safe on the bottom shelf, containing two
handguns and ammunition. Id. at 103. On the top shelf, he found a work
helmet and two boxes of shotgun shells—one opened and one closed. Id. at
104. The open box contained sixteen unfired rounds of Federal Premium
Wing-Shok .20 gauge shotgun ammunition. Id. at 104-06.
Sergeant Ken Markilinski, also of the Pennsylvania State Police,
accompanied Corporal Pannelle to examine the second floor of the residence.
They found six long guns in Appellant’s upstairs bedroom, partially covered
by an orange cloth. Id. at 108-109. One of the guns, a Harrington and
Richardson youth model .20 gauge shotgun, smelled as if it had been freshly
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fired. Id. at 113, 130-131, 142. It had gunpowder residue in the breech.
Id. at 141. Based on his personal experience as a hunter for over forty
years and as a twelve-year participant in a skeet shooting league, Sergeant
Markilinski testified that the odor and presence of residue indicated to him
that the weapon had been fired “within recent hours.” Id. at 141-142. The
odor of burnt gunpowder was “still pungent,” and Sergeant Markilinski was
able to wipe away some of the residue with his finger because the residue
did not have time to harden. Id. at 142. Sergeant Markilinski said it is
possible for the odor of burnt gunpowder to remain on a gun for up to a day.
Id. at 144. The Commonwealth did not offer Sergeant Markilinski as an
expert witness. Id. at 144.
Trooper Wilson attempted to speak with A.H. at the scene, but she
was in a state of shock and incapable of answering questions. N.T.
Adjudication Hearing, 4/11/2012 at 60-61. At approximately 12:00 p.m.,
Trooper Wilson went to Mohawk Elementary School to interview J.H. and
Appellant. Trooper Wilson testified that, during a ten-minute interview J.H.
“really didn’t have much to offer about what had happened that morning.”
Id. at 64. J.H. was “very, very distraught” when Trooper Wilson first
arrived, but she calmed down when told she was not in trouble. Id. J.H.
and A.H. did not testify at the adjudication hearing.
After J.H.’s interview, Trooper Wilson interviewed Appellant in a
conference room in the presence of the school guidance counselor. Id.
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Appellant had been sleeping in the nurses office, but he was responsive
during the interview. Id. at 65. Trooper Wilson, without informing
Appellant of the death of the Victim, asked him who was at the residence
that morning. Appellant stated that the Victim, J.H., and A.H. were the only
other persons present after C.B. left for work. Id. at 65-66. Appellant
stated that that A.H. was still asleep when he and J.H. left for school. Id.
Appellant also saw a “black, large pickup truck parked back by the garage”
as he was walking down the driveway to catch the school bus. Id. at 66.
When Trooper Wilson asked for more details about the black truck,
Appellant said he did not know if it was running, and he did not see anyone
inside. Id. Appellant said the truck was the same kind as the property
owner and another man used when they came to feed cows. Id. at 66-67.
Appellant also described his own actions that morning, as we have already
set forth above.
The night before the murder, Adam Harvey, the Victim’s ex-boyfriend,
was escorted out of a nightclub after having a verbal altercation with the
Victim’s parents. Id. at 126. He testified that he subsequently went back to
his parents’ house, where he was living in the basement. Id. at 211-12
Harvey claimed he remained at his parents’ house through the following
morning. Id. at 133, 212.
At the time of the murder, Harvey had an enforceable Protection From
Abuse (“PFA”) order against him, naming the Victim and her family
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(including her parents, sister, and brother-in-law) as persons to be
protected. Id. at 131, 205. The PFA, enforceable from March 2008 to
March 2011, was entered after Harvey allegedly threatened to kill the Victim
and her family. Id. at 200, 202, 204. Although Harvey did not appear in
court to contest the PFA, he testified at the adjudication hearing that the
allegations were false. Id. at 200-06. The Victim had previously filed a PFA
petition against Harvey in 2006, after he allegedly abused and threatened to
have her killed. Id. at 194. Harvey denied those allegations at the
adjudication hearing. Id. at 195-96. In early 2009, a DNA test confirmed
that Harvey was not A.H.’s father. Id. at 127, 206. Harvey testified that he
was prepared for that result and was only “a little bit” upset about it. Id. at
207. Harvey knew the Victim lived somewhere in Wampum, but denied
knowing the location of the Victim’s house. Id. at 210.
At 1:20 p.m. on the day of the murder, Pennsylvania State Police
Trooper Dominick Caimona found Harvey in his black Ford F-150 pickup
truck at an intersection approximately two blocks from Harvey’s parents’
house. Id. at 131, 189, 221-22. This intersection was approximately eight
to ten miles from the Victim’s house. Id. at 223. Trooper Caimona testified
that the snow on the hood and roof of the truck would not have remained
had Harvey driven it to Wampum and back. Id. at 223. Harvey
accompanied Trooper Caimona to the police station. Harvey’s hands tested
negative for gunshot residue, and a search of his truck produced no
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incriminating evidence. Id. at 132, 137. Based on his alibi, the snow on his
black truck, and the absence of other incriminating evidence, police
eliminated Harvey as a suspect.
At 10:00 p.m. on the day of the murder, Trooper Wilson interviewed
Appellant a second time, this time in the presence of C.B. Id. at 72. Before
the interview commenced, C.B. told Appellant something bad had happened
to the Victim and that she was in heaven. Id. Appellant cried for
approximately thirty seconds, but did not ask questions. Id. After he
stopped crying, Wilson asked Appellant for more details about the truck he
had seen that morning. Id. at 73. Appellant stated that after leaving the
house, he checked his pocket for ice cream money and accidentally dropped
a piece of fuzz onto the ground. Id. After bending down to pick up the fuzz,
he saw the truck. Id. Appellant said he told J.H. about the truck, but he did
not think she heard him because she was too far down the driveway ahead
of him. Id. at 74. Appellant also stated that he saw a person wearing a
white hat “ducking over” inside the truck, and that the lights were “sort of
half on.” Id. at 75. Appellant did not mention these observations in his
initial interview with Trooper Wilson. Id. at 76. Trooper Wilson confirmed
that a man who tends the cattle on the farmland adjacent to the house
drives a large dark truck. Id. at 100. Trooper Wilson also asked Appellant if
he had any guns, and Appellant replied that he had a .30-30. Id. at 76.
Trooper Wilson asked Appellant if he had a shotgun. Appellant said that he
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had a .20 gauge and volunteered that he only shot it outside. Id. at 76-77,
101. Trooper Wilson asked Appellant if he fired his .20 gauge that morning.
He said “no,” hesitated, and then said “no” again. Id. at 78.
On February 21, 2009 at 3:30 a.m., police arrested Appellant and
charged him with two counts of criminal homicide. N.T. Adjudication
Hearing, 4/10/2012 at 217. At the time of the arrest, police collected the
shirt, jeans, tennis shoes, and winter coat Appellant wore on the day of the
murder. Id. at 217-218. Later that day, Sergeant Daniel Brooks of the
Pennsylvania State Police searched the exterior of the residence for shotgun
shells or other potential evidence. Id. at 195, 207. In addition to two rusty
shell casings in the yard found by other officers, Brooks found a spent
“Federal 20-gauge No. 6 shot” shell casing in “pristine” condition by a fence
along the side of the driveway. Id. at 195-96, 201. Sergeant Brooks found
the shell approximately 100 feet from the house, closer to the house than
the road. Id. at 196-97. The pristine shell—found amongst some icy
leaves—was near the top third of the driveway, approximately 100 yards
from the residence. Id. at 196-97, 202, 210.
Trooper David Burlingame, a certified firearm examiner, inspected
Appellant’s .20 gauge shotgun, the pristine shotgun shell, and the twenty-
seven shotgun pellets and pieces of wadding recovered from the body of the
Victim. N.T. Adjudication Hearing, 4/11/2012 at 30-31, 36. Trooper
Burlingame testified that the .20 gauge was functional. Id. at 38-40.
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Trooper Burlingame used Appellant’s shotgun to test-fire one of the unspent
.20 gauge shells found in the armoire, and he compared the test-fired shell
with the pristine shell recovered near the driveway. Id. at 42-43. The
markings on the two shells were identical, leading Trooper Burlingame to
conclude that the pristine shell had been fired from the Appellant’s .20
gauge shotgun. Id. at 44. Trooper Burlingame compared the twenty-seven
shotgun pellets and pieces of wadding recovered from the Victim’s body to
pellets and wadding in one of the unspent .20 gauge shells recovered from
the armoire. The size, shape, weight, and construction details of the pellets
in the unspent shell were consistent with the pellets removed from the
Victim’s body. Id. at 44-45. The wadding also was consistent with wadding
retrieved from the victim’s body. Id.
Forensic expert Elana Somple examined Appellant’s clothing for
gunshot residue. She explained that when a firearm discharges, the firing
pin strikes the primer cap of the ammunition, causing the primer
components within—lead, barium, and antimony—to ignite. Id. at 8. The
vaporized lead, barium, and antimony solidify and form particulate, some of
which lands on the hands and clothing of the person who discharged the
firearm. Id. at 9. Particulate with all three components fused together
conclusively establishes the presence of gunshot residue. Id. at 8-9.
Particulate with two of the three components is considered to be consistent
with gunshot residue. Id. at 10. One-and two-component particles could
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come from a gunshot or from other sources. Id. Gunshot residue can get
on clothing when the wearer discharges a firearm or stands in close
proximity to a person discharging a firearm. Id. at 10, 12, 21. In addition,
clothing can have gunshot residue on it if it comes into contact with another
object that has gunshot residue on it. Id. Somple said that gunshot residue
has a lasting presence on clothing if the clothing is not disturbed. Id. at 23.
Somple also said she would expect to find more gunshot residue on someone
who discharged a firearm indoors than someone who discharged a firearm
outdoors. Id. at 28.
Somple tested Appellant’s shirt and pants and found one conclusive
particle of gunshot residue on the right front side of the shirt and one
conclusive particle on the left leg of his jeans. Id. at 15, 17-18.
Additionally, she found 14 two-component particles and at least 14 one-
component particles on the right front side of the shirt. Id. at 15. Somple
found 17 two-component particles and at least 15 one-component particles
on the left front side of the shirt. Id. Somple found six two-component
particles and at least 29 one-component particles on the right leg of the
jeans. Id. at 18. Somple found 11 two-component particles and at least 29
one-component particles, in addition to the one conclusive particle of
gunshot residue, on the left leg of the jeans. Id.
Corporal Jeffrey Martin testified that Appellant’s clothing tested
negative for the presence of blood stains and that no DNA or fingerprints
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were found on the spent shotgun shell. Id. at 121, 123-24. Forensic testing
revealed no latent fingerprints or blood on the shotgun. Id. at 122-23.
Forensic pathologist Dr. James Smith performed the Victim’s autopsy.
N.T. Adjudication Hearing, 4/10/2012 at 157. The only trauma on the
Victim’s body was a single gunshot wound to the back of her neck. Id. at
160. The wound was produced by a shotgun. Id. at 161. Dr. Smith opined
that the shotgun was within a few inches of or touching the Victim’s neck
when fired. Id. at 185. When asked whether “blowback”—blood or tissue
traveling from the Victim to the shotgun barrel—occurred, Dr. Smith said
blowback was possible but the angle at which the blast occurred would have
minimized the amount. Id. at 170-72, 186-190. Asked if he would
“necessarily expect to find blood or tissue on the barrel of the gun,” Dr.
Smith said “[n]ot necessarily, no.” Id. at 170-71.
C.B. testified that he, the Victim, Appellant, and the Victim’s daughters
had a close relationship. N.T. Adjudication Hearing, 4/11/2012 at 140, 141.
According to C.B., Appellant’s relationship with the Victim was “[j]ust as
normal as it was between her and her own daughters.” Id. C.B. explained
that he and Appellant frequently shot guns in front of the house, near where
Cable and his work crew parked on the morning of February 20, 2009. Id.
at 142. The week before the murder, C.B. and Appellant participated in a
turkey shoot at which Appellant wore the winter coat seized after his arrest.
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Id. at 143, 146. Appellant used the .20 gauge shotgun in the turkey shoot,
but C.B. loaded it and unloaded it for him. Id. at 145.
When asked about potential suspects, C.B. told police he believed
Harvey would kill the Victim Id. at 148. C.B. testified that he had listened
to ten to twelve voicemails Harvey left on the Victim’s cell phone, in which
Harvey threatened the Victim and her family. Id. at 149. C.B. further noted
that the Victim feared Harvey, and that he and the Victim had an unlisted
phone number in order to prevent Harvey from contacting them. Id. at
148-49, 177.
Appellant’s adjudication hearing commenced on April 10, 2012. On
April 13, 2012, the juvenile court adjudicated Appellant delinquent on counts
of homicide and homicide of an unborn child.1 At the conclusion of a
dispositional hearing held on May 18, 2012, the juvenile court committed
Appellant to a secured residential treatment facility. Appellant did not file a
post-dispositional motion. Instead, he filed a timely appeal from the
dispositional order.
On May 8, 2013, this Court vacated the dispositional order, finding
merit in Appellant’s argument that the juvenile court’s verdict was contrary
to the weight of the evidence because the juvenile court’s adjudication of
delinquency rested in large part on findings of fact not supported in the
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1
18 Pa.C.S.A. §§ 2501(a) and 2603(a), respectively.
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record. In re J.B., 69 A.3d 268, 282 (Pa. Super. 2013), vacated, 106 A.3d
76 (Pa. 2014). Specifically, we found no record support for the juvenile
court’s factual findings in support of its conclusion that no one entered the
residence between Appellant and J.H.’s departure and the arrival of state
police. Id. at 278-81. Prior to addressing the merits, we concluded
Appellant’s failure to file a post-dispositional motion did not result in waiver
of his challenge to the weight of the evidence. Id. at 274-77.
On December 15, 2014, our Supreme Court vacated this Court’s
decision. In re J.B., 106 A.3d 76 (Pa. 2014). The Supreme Court
concluded a post-dispositional motion was necessary to preserve Appellant’s
challenge to the weight of the evidence, and remanded to the juvenile court
to permit Appellant to file a post-dispositional motion nunc pro tunc. Id. at
98-99. On January 16, 2015, Appellant filed a motion challenging both the
sufficiency and weight of the evidence in support of Appellant’s conviction.
The juvenile court permitted the parties to file briefs, and the court
conducted a hearing on the motion on March 15, 2015. The juvenile court
denied Appellant’s motion on May 19, 2015. This timely appeal followed.
Appellant presents three questions for review:
1. Did the juvenile court err in finding that the evidence
adduced at trial, when viewed in the light most favorable
to the Commonwealth as the verdict winner, was sufficient
to establish beyond a reasonable doubt that Appellant J.B.
committed the crimes in question?
2. Did the juvenile court commit a palpable abuse of
discretion in finding that Appellant J.B. committed the
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crimes in question when the verdict was against the weight
of the evidence introduced at trial?
3. Did the juvenile court err in making redeterminations of
facts and reevaluating the credibility of witnesses in
denying Appellant J.B.’s motion for post-dispositional
relief?
Appellant’s Brief at 7. We will address these arguments in turn.
We review Appellant’s challenge to the sufficiency of the evidence as
follows:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
trier of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en
banc).
Criminal homicide occurs where the defendant “intentionally,
knowingly, recklessly or negligently causes the death of another human
being.” 18 Pa.C.S.A. § 2501(a). The parties do not dispute that the
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perpetrator intentionally caused the death of the Victim. The sole matter in
dispute is whether Appellant was the perpetrator. Appellant argues (1) the
juvenile court erred in finding that no one entered the residence in between
Appellant’s departure and the arrival of the investigating police officers; (2)
the juvenile court erred in finding that the .20 gauge youth-model shotgun
was the murder weapon; (3) the gunshot residue on Appellant’s clothing
does not prove Appellant fired his .20 gauge shotgun on the morning in
question; and (4) the record contains no other evidence that Appellant
handled the shotgun on the morning in question. Appellant’s Brief at 16-30.
In the first of his sufficiency of the evidence challenges, Appellant
relies on this Court’s basis for vacating the dispositional order. In that
opinion, we explained:
In its written opinion, the juvenile court made clear that its
decision depended in substantial part on its finding that
[Appellant], his two step-sisters (J.H. and A.H.), and K.M.H.
were the only people inside the residence on the morning of
February 20, 2009, and that the evidence demonstrated that no
other person entered the residence after the departure of
[Appellant] and his seven-year-old sister and prior to the arrival
of the Pennsylvania State Police. In its written opinion, the
juvenile court found that ‘[t]he only imprints observed in the
snow on that morning were the children’s footprints leading from
the house to the bus stop,’ from which the juvenile court
concluded that ‘[t]here is no indication that another person
approached the residence, either by foot or in a vehicle after the
children left and before [Cable] arrived with his employees.’
Juvenile Court Opinion, 4/20/12, at 14. The juvenile court
emphasized this point again, stating on the next page of its
opinion that, in addition to forensic evidence, it ‘especially
considers the absence of any unaccounted for foot prints or tire
tracks around the home, the time period after the arrival of
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[Cable] and the tree service employees, during which no one
was seen approaching or leaving the residence....’ Id. at 15.
J.B., 69 A.3d at 278–79. We found the juvenile court’s findings unsupported
because “[n]o witness (including any of the police officers first arriving on
the scene) testified to observing an absence of footprints on the property
that morning.” Id. at 280.
In its post-remand opinion, the juvenile court no longer relies on the
absence of evidence that any unidentified individual entered the residence.
Juvenile Court Opinion, 7/29/15, at 5 (“In evaluating [Appellant’s] post-trial
motion, the court carefully reevaluated its own findings, and specifically
excluded all conclusions that the Superior Court determined to be improperly
made.”). Rather, the court emphasized other evidence implicating
Appellant:
The testimony established that [Appellant] lived with the
Victim. N.T. April 11, 2012, at 61-62. [Appellant] owned the
Harrington and Richardson .20 gauge youth shotgun that was
established to be the murder weapon. N.T. April 11, 2012, at
77-78. The Harrington and Richardson .20 gauge youth shotgun
was discovered in [Appellant’s] upstairs bedroom immediately
after the crime, which smelled as if it had been recently fired.
N.T. April 10, 2012, at 89, 111-114, 142. [C.B.] stated that all
of the guns, including the Harrington and Richardson .20 gauge
youth shotgun, were normally located in the bedroom he shared
with the Victim. N.T. April 11, 2012, at 167. He elaborated that
the guns were stored in a cubbyhole. Id. Only a day or two
prior to the Victim’s murder, the guns were moved upstairs by
[Appellant] and J.H. Id. at p. 168. [C.B.’s] testimony
established that even he did not know the guns were moved to
another location in the residence prior to his fiancé’s death. Id.
at 167-169. From this testimony, the court infers that a limited
group of people had knowledge of the murder weapon’s location:
the Victim, J.H. and [Appellant]. Additionally, [Appellant] had
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access to the shotgun shells, as they were located in the Victim’s
bedroom, N.T. April 10, 2012, at 103-104, where [Appellant]
had to go on the morning of the crime to retrieve his clothing.
N.T. April 11, 2012, at 68-70. [C.B.] stated he had been
teaching [Appellant] about gun safety, which included
‘instructing [Appellant] on how to properly load and unload a
gun.’ N.T. April 11, 2012, at 143. [Appellant] knew how to fire
a shotgun.
Forensic evidence established that [Appellant] had one
gunshot residue particle and fourteen particles consistent with
gunshot residue on the right side of his shirt. N.T. April [11],
2012, at 15. 18. On the left side of [Appellant’s] jeans forensic
experts found seventeen particles consistent with gunshot
residue and fifteen particles consistent with any one of the three
particles comprising gunshot residue. Id. at 15. The particles
on [Appellant’s] clothing correspond and are consistent in
location with firing a shotgun. N.T. April [11], 2012, at 18. The
shirt and jeans tested were the same articles of clothing
[Appellant] was wearing when he left for school on February 20,
2009, and when he was later interviewed by Trooper Wilson.
N.T. April 11, 2012, at 78-79. The Commonwealth established
that one pristine shotgun shell was retrieved outside the
residence along the drive near an adjacent fence line. N.T. April
10, 2012, at 195, 199. As opposed to two other rusted shotgun
shells found outside the residence, this shell was apparently
pristine and new. N.T. April 10, 2012, at 201. The fence line,
along which the pristine shell was found, ran parallel to the
driveway utilized by [Appellant] when walking to the bus stop.
N.T. April 10, 2012, at 151-152. [Appellant] used this route on
the morning of the crime. Id. These facts support the
Commonwealth’s argument that [Appellant] had the ability to
discard the shotgun shell as he walked to the bus stop on the
morning of February 20, 2009.
Juvenile Court Opinion, 5/19/15, at 39-41.
Concerning the possibility of an unidentified perpetrator murdering the
Victim after Appellant and J.H. left for school, the juvenile court reasoned as
follows:
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The court’s summary set forth above obviously establishes
that there is an unaccounted for period of time, being the time
between when the children left for school at 8:12 a.m. and when
Mr. Cable and his crew arrived at 9:00 a.m. In order to impose
fault on some unaccounted individual, the court would have to
find that this person was able to enter the Victim’s residence
without disturbing any of the contents, the Victim or [A.H.], and
retrieve the Harrington and Richardson .20 gauge youth shotgun
from [Appellant’s] bedroom along with the ammunition from the
Victim’s bedroom. After murdering the Victim, the gun would be
replaced and the shotgun shell discarded along the driveway.
This hypothetical characterization of the evidence is an
unrealistic portrayal of the events[.]
Id. at 47.
In summary, the juvenile court did not rely on the absence of evidence
of an unidentified assailant. The court’s May 19, 2015 opinion relies on
circumstantial evidence implicating Appellant. The court’s July 29, 2015
opinion expressly disavowed any reliance on findings this Court deemed
lacking in record support.
The May 19, 2015 opinion relies on facts supported in the record.
Police believed Appellant’s .20 gauge shotgun smelled freshly fired.
Appellant denied having recently fired the .20 gauge shotgun. Police
recovered a pristine shell under some leaves and ice near the driveway—
which Appellant traversed on his way to the school bus on the morning of
the murder. Forensic testing confirmed the pristine shell was fired from
Appellant’s shotgun. The record also confirms that Appellant’s .20 gauge
shotgun was moved to the upstairs bedroom only days before the murder,
and that only Appellant, J.H., and the Victim knew the gun’s location. The
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.20 gauge ammunition remained downstairs in an armoire in the Victim’s
bedroom. Based on these facts, the juvenile court found it unrealistic that
an unidentified assailant could have entered the residence, located
Appellant’s shotgun upstairs, located the ammunition in the armoire
downstairs, murdered the Victim, replaced the shotgun upstairs, discarded
the shell by the driveway, and left undetected. The juvenile court did not
rely on the absence of any footprints or other evidence indicating the
presence of a third party. The court found that the circumstantial evidence
implicating Appellant also excludes any reasonable possibility of an
unidentified assailant. We therefore reject Appellant’s argument that the
juvenile court relied on the absence of evidence that an unidentified
assailant entered the house.
Next, Appellant argues that the trial court erred in finding that
Appellant’s shotgun was the murder weapon. Appellant notes, correctly,
that Appellant and C.B. commonly shot guns near the residence. Thus,
Appellant believes that the pristine shotgun shell recovered near the
driveway is not noteworthy, especially since it could not be determined
precisely how long the shell was there. Appellant concedes that the pellets
retrieved from the Victim’s body were consistent with the pellets from an
unfired .20 gauge shell retrieved from the armoire, but argues that mere
consistency of the pellets is insufficient to prove Appellant’s shotgun was the
murder weapon. Appellant also notes the absence of blood on or in the
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shotgun’s barrel, despite evidence that the barrel was close to or touching
the Victim’s neck when it was discharged. As explained above, Dr. Smith
testified that the angle of the gun would have minimized blowback, i.e. blood
or tissue attaching to the shotgun barrel. Appellant nonetheless contends
that forensic analysis would have retrieved at least a minimal amount of
blood or tissue on the shotgun barrel if it was the murder weapon. Likewise,
Appellant believes the juvenile court erred because forensic analysis
retrieved no fingerprints from the gun. Finally, Appellant notes that police
could not testify with certainty how recently the shotgun had been fired.
Under the governing standard of review, which requires us to view the
evidence in a light most favorable to the Commonwealth as verdict winner,
we make the following observations. The record demonstrates that
Appellant’s .20 gauge shotgun—which had been recently moved and whose
location was known only to Appellant, J.H. and possibly the Victim—was
recently fired. Police located a pristine shell fired from Appellant’s shotgun
under leaves and ice along the driveway. It is impossible to prove
conclusively that the pellets retrieved from the Victim were fired from the
pristine spent shell. The record confirms, however, that the pellets and
wadding retrieved from the Victim’s wound were consistent with pellets and
wadding from an unfired .20 gauge shell retrieved from the box of
ammunition in the Victim’s bedroom. As for the absence of forensic
evidence, the record establishes that blowback was possible, but that it
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would not necessarily occur because of the position of the gun barrel relative
to the Victim’s neck. This evidence does not command a finding that
minimal blowback occurred. Furthermore, the absence of fingerprints on the
gun supports a reasonable inference that the assailant wiped it clean. The
presence of Appellant’s fingerprints on his own shotgun would have been
unsurprising and not necessarily incriminating. The total absence of
fingerprints renders the gun suspicious, especially since it smelled as if it
had been recently fired. Viewing the evidence in a light most favorable to
the Commonwealth, we conclude the record supports the juvenile court’s
finding that Appellant’s shotgun was the murder weapon.
Appellant also argues that the presence of gunshot residue on the
clothing he wore on the day of the murder does not prove he fired a gun
that morning. As explained above, the Commonwealth confiscated the coat,
shirt, and jeans Appellant wore on the day of the murder. Appellant wore
the coat to a turkey shoot the week before. Appellant relies on Somple, who
testified that gunshot residue can transfer from one item to another on
contact. The expert also testified that residue could remain on clothing for
long periods of time if left undisturbed. The import of Appellant’s argument
is that the residue on Appellant’s shirt and jeans could have transferred from
the coat he wore to the turkey shoot.
As noted above, Appellant had conclusive three-component particles of
gunshot residue on the right front side of his shirt and the left leg of his
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jeans. Appellant had one- and two-component particles on both sides of his
shirt and both legs of his jeans. The juvenile court found it unlikely that
gunshot residue from Appellant’s coat—assuming the coat still had residue
from the turkey shoot the week before—would transfer to an inner layer of
clothing. Id. at 47-48. We find the juvenile court’s finding reasonable and
supported by the evidence.2
In summary, we have considered and rejected Appellant’s arguments
that the evidence was insufficient. We conclude that the record, viewed in a
light most favorable to the Commonwealth as verdict winner, supports the
juvenile court’s findings of fact. Viewed in that light, the record also
supports the juvenile court’s conclusion that Appellant was the perpetrator.
Next, we consider Appellant’s weight of the evidence argument. As
explained above, our Supreme Court remanded this matter to the juvenile
court so that Appellant could present this issue in a post-dispositional
____________________________________________
2
The juvenile court also opined that the location of the residue on
Appellant’s clothing was consistent with firing a shotgun while wearing those
clothes. Juvenile Court Opinion, 5/19/15, at 40-41. The court cited
Somple’s testimony. Our review of Somple’s testimony confirms only that
she sampled the front side of Appellant’s shirt (her testimony is not specific
as to whether she sampled the front or back of the jeans). N.T. Adjudication
Hearing, 4/11/2012, at 17. Somple did not testify that the location of the
residue on the clothing was consistent with the wearer having fired a
shotgun. The juvenile court presumably reached that finding because
residue was on the front of Appellant’s shirt. The court’s finding is not
unreasonable, but we need not rely on it to support our decision. As we
explained in the main text, the record supports the juvenile court’s finding
that gunshot residue would not likely transfer from an outer layer of clothing
to jeans or a shirt.
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motion. Appellant did so, and the juvenile court denied relief. We must
discern whether the juvenile court abused its discretion:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of whether
the verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the interest of
justice.
However, the exercise of discretion by the trial court in
granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is not unfettered. The
propriety of the exercise of discretion in such an instance may be
assessed by the appellate process when it is apparent that there
was an abuse of that discretion. This court summarized the
limits of discretion as follows:
The term ‘discretion’ imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion,
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion must
be exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary actions.
Discretion is abused when the course pursued represents not
merely an error of judgment, but where the judgment is
manifestly unreasonable or where the law is not applied or
where the record shows that the action is a result of partiality,
prejudice, bias or ill will.
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000).
A challenge to the weight of the evidence is distinct from a challenge
to the sufficiency of the evidence in that the former concedes that the
Commonwealth has produced sufficient evidence of each element of the
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crime, “but questions which evidence is to be believed.” Commonwealth v.
Charlton, 902 A.2d 554, 561 (Pa. Super. 2006), appeal denied, 911 A.2d
933 (Pa. 2006). “A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts would have
arrived at a different conclusion.” Commonwealth v. Clay, 64 A.3d 1049,
1055 (Pa. 2013). “Rather, the role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly of greater weight
that to ignore them or to give them equal weight with all the facts is to deny
justice.” Id. (citation omitted). “It has often been stated that a new trial
should be awarded when the jury’s verdict is so contrary to the evidence as
to shock one’s sense of justice and the award of a new trial is imperative so
that right may be given another opportunity to prevail.” Id.The Supreme Court has provided the following guidance for an
appellate court’s review of the record when the appellant challenges the
weight of the evidence:
In reviewing the entire record to determine the propriety
of a new trial, an appellate court must first determine whether
the trial judge’s reasons and factual basis can be supported.
Unless there are facts and inferences of record that disclose a
palpable abuse of discretion, the trial judge’s reasons should
prevail. It is not the place of an appellate court to invade the
trial judge's discretion any more than a trial judge may invade
the province of a jury, unless both or either have palpably
abused their function.
To determine whether a trial court’s decision constituted a
palpable abuse of discretion, an appellate court must examine
the record and assess the weight of the evidence; not however,
as the trial judge, to determine whether the preponderance of
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the evidence opposes the verdict, but rather to determine
whether the court below in so finding plainly exceeded the limits
of judicial discretion and invaded the exclusive domain of the
jury. Where the record adequately supports the trial court, the
trial court has acted within the limits of its judicial discretion.
Id. at 1056.
Appellant’s weight of the evidence argument spans only two
paragraphs in his brief. Appellant’s Brief at 31-32. In those two
paragraphs, he simply asserts that the findings he challenged in his
sufficiency of the evidence argument lack record support and, therefore, the
adjudication of delinquency is contrary to the weight of the evidence. We
already have set forth a detailed review of the record and explained our
reasons for concluding that the record supports the juvenile court’s findings.
For the reasons we explained in addressing Appellant’s challenge to the
sufficiency of the evidence, we cannot conclude that the juvenile court’s
adjudication is so contrary to the evidence as to shock our sense of justice.
See Clay, 64 A.3d at 1055.
We are cognizant that Appellant was only 11 years old at the time of
the murder. In adjudicating Appellant delinquent, the juvenile court found
that Appellant was able to murder the Victim and replace and wipe clean his
shotgun while J.H. and A.H. were in the house, then discard the spent shell
on his way to the school bus with J.H. The school bus driver noticed no
unusual behavior from either child. The record is silent on whether or how
Appellant explained the shotgun blast to the Victim’s two young daughters.
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The record also is silent on whether or how Appellant kept J.H. and A.H. out
of the Victim’s bedroom before he and J.H. left for school. No evidence
reveals whether J.H. was aware of her mother’s death before she left for
school. We do not envy the juvenile court’s difficult task of deciding whether
an 11-year-old child was capable of such a gruesome and calculated crime.
However, under the standards governing appellate court review of weight
and sufficiency of the evidence challenges, we discern no reversible error in
the juvenile court’s decision.
In Appellant’s third and final argument, he asserts the juvenile court
improperly reassessed the credibility of several witnesses. “Following the
rendering of a verdict, the trial court is limited to rectifying trial errors and
cannot make redeterminations concerning credibility and the weight of the
evidence.” Commonwealth v. Melechio, 658 A.2d 1385, 1389 (Pa. Super.
1995). Recently, this Court explained:
[A] post-verdict court may not reweigh the evidence and
change its mind as the trial court did herein. Although a post-
verdict judge may question a verdict, his discretionary powers
are limited to a determination of whether the evidence was
sufficient to uphold the original verdict, and he may not alter the
original verdict and substitute a new one. Commonwealth v.
Rawles, 501 Pa. 514, 462 A.2d 619 (1983). The trial court’s
verdict must be accorded the same legal effect as a jury verdict.
Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266,
1268 n. 5 (1977). Post-trial, the court cannot re-deliberate as it
is no longer the fact finder. Just as jurors are not permitted to
testify as to the mental processes that led to their verdict, so is
the trial court precluded from testifying as to its flawed thought
process as a fact finder.
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Commonwealth v. Robinson, 33 A.3d 89, 94 (Pa. Super. 2011), appeal
denied, 42 A.3d 292 (Pa. 2012).
This doctrine prohibits a trial court from altering its verdict. In
Robinson, the trial court found the defendant guilty and then sua sponte
issued a not guilty verdict because, according to the trial court, it failed to
consider and weigh character evidence favoring the defendant. Id. at 91.
Likewise, in Melechio, the trial court found the defendant guilty of third-
degree murder after trial, and subsequently vacated the convictions because
it did not credit the testimony of a significant witness against the defendant.
Melechio, 658 A.2d at 1387.
Appellant also cites Commonwealth v. Parker, 451 A.2d 767, (Pa.
Super. 1982), in which the trial court sua sponte changed its guilty verdicts
to not guilty two weeks after the original verdicts were entered and recorded
on the docket. In its order, the trial court noted that it reconsidered the
facts. Id. at 768-69. We held that a trial court could not change a guilty
verdict to not guilty based on reconsideration of the facts. Id. at 769.
The foregoing case law is inapplicable because the juvenile court did
not alter its adjudication. Furthermore, all of the reasoning the juvenile
court offered in its May 19, 2015 post-remand opinion is consistent with its
original adjudication of delinquency. Appellant offers four specific instances
of allegedly improper reassessment of facts. First, he argues the juvenile
court improperly reassessed facts in finding it unlikely that an unidentified
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intruder could have located Appellant’s shotgun, used it to commit the
murder, and replaced it in the upstairs bedroom. It is true that the juvenile
court did not previously offer this reasoning in support of its adjudication. In
employing that reasoning, the trial court relied on its findings that
Appellant’s .20 gauge shotgun was the murder weapon, that the shotgun
was moved upstairs to Appellant’s bedroom days before the murder, and
that only Appellant, J.H. and the Victim knew the shotgun’s location on the
morning of the murder. The juvenile court’s post-remand opinion merely
draws reasonable inferences from the facts of record. The court’s reasoning
is consistent with its adjudication and consistent with the legal standard for
assessing the sufficiency of the evidence.
Next, Appellant argues that the juvenile court now rejects the
credibility of Elana Somple, the forensic expert who testified as to the
gunshot residue on Appellant’s clothing. Appellant believes the juvenile
court has belatedly determined that Somple was not credible in testifying
that residue can transfer from one object to another. Appellant misreads
the juvenile court’s opinion. The juvenile court did not reject Somple’s
testimony that residue transfer can occur. The court simply found that no
residue transfer occurred in this case. The juvenile court deemed it unlikely
that gunshot residue transferred from an outer layer of clothing to jeans or a
shirt. Once again, the court’s reasoning is consistent with the established
facts and its original adjudication.
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Third, Appellant argues that the juvenile court improperly reassessed
C.B.’s testimony. In its post-remand opinion, the juvenile court noted that it
did not believe C.B.’s testimony about the close relationship among
Appellant, the Victim, and the Victim’s daughters. Juvenile Court Opinion,
5/19/15, at 25, 36-37. The juvenile court discounted C.B.’s testimony based
on C.B.’s obvious incentive to protect his son. It is true that the juvenile
court did not explicitly reject C.B.’s credibility prior to its post-remand
opinion. Regardless, the juvenile court’s post-remand opinion is consistent
with its original adjudication. In adjudicating Appellant delinquent, the
juvenile court implicitly did not believe that Appellant and the Victim had a
good relationship. Likewise, the juvenile court credited the evidence
eliminating Harvey as a suspect even though C.B. implicated Harvey as a
person who would murder the Victim. Clearly, the juvenile court either
found C.B. not credible or discounted his testimony because he is Appellant’s
father.
Finally, Appellant argues the juvenile court improperly reassessed the
credibility of Appellant’s statements to Trooper Wilson. In its post-remand
opinion, the juvenile court noted, among other things, that Appellant gave
two different accounts of the black truck he allegedly saw when he was
leaving for school on the morning of the murder. In his first statement,
Appellant did not mention that a person was in the truck. Later that
evening, he told Trooper Wilson a person was “ducking over” in the truck
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and the truck’s lights were “sort of half on.” N.T. Trial, 4/11/12, at 75. In
its post-remand opinion, the juvenile court noted that it disbelieved
Appellant’s account based on those inconsistencies. Juvenile Court Opinion,
5/19/15, at 49-50. Again, it is true that the juvenile court never addressed
this discrepancy until its post-remand opinion. Regardless, the juvenile
court’s adjudication of delinquency clearly establishes that the court
disbelieved Appellant’s account of his actions that morning. We observe, for
example, that Appellant denied having fired his .20 gauge shotgun on the
morning in question. Despite this, the juvenile court found that Appellant
committed the killing with that weapon.
Appellant’s third and final argument lacks merit because it relies
entirely on case law involving altered verdicts. Instantly, the juvenile court
did not alter its adjudication of delinquency. Furthermore, Appellant has
failed to cite any instances of a reassessment of facts or a redetermination
of credibility. The juvenile court’s reasoning in its post-remand opinion is
consistent with its original adjudication and consistent with the standards
governing challenges to the weight and sufficiency of the evidence.
In summary, we have reviewed Appellant’s three arguments—a
challenge to the sufficiency of the evidence, a challenge to the weight of the
evidence, and a challenge to the juvenile court’s post-remand findings and
analysis—and discerned no error on the part of the juvenile court. We
therefore affirm the order of disposition.
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Order of disposition affirmed.
Judge Olson Joins the Opinion.
Judge Musmanno Notes Dissent.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2016
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