In the Interest of R.M., Appeal of: R.M., A Minor ( 2017 )

 Circulated 03/23/2017 04:03 PM
. IN THE INTEREST OF : IN THECOURT OF COMMON PLEAS
R.M. : OF ERIE COUNTY, PENNSYLVANIA
: JUVENILE DIVISION - DELINQUENCY
A Minor : No. 7 of 2016
MEMORANDUM OPINION
July 1, 2016: This matter is before the Court upon the appeal of R.M. (hereinafter
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"Appellant") from this Court's Order dated March 9, 2016. For the reasons set f9-,:tli.belo~;~thei·
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appeal should be dismissed.
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FACTUAL & PROCEDURAL HISTORY :. I
A. Procedural History
On January 19, 2016, the Commonwealth filed Allegations of Delinquency against
Appellant charging him with the following delinquent acts: Allegation 13, Aggravated Assault
(in violation of 18 Pa. C.S. § 2702(a)(3)); Allegation 14, Burglary (in violation of 18 Pa. C.S.
§ 3502(a)(4)); Allegation 15, Criminal Trespass (in violation of 18 Pa. C.S. § 3503(a)(l)(i));
Allegation 16, Receiving Stolen Property (in violation of 18 Pa. C.S. § 3925(a)); Allegation 17,
Resisting Arrest or Other Law Enforcement (in violation of 18 Pa. C.S. § 5104); Allegation 18,
Theft by Unlawful Taking or Disposition (in violation of 18 Pa. C.S. § 3921(a)); Allegation 19,
Receiving Stolen Property (in violation of 18 Pa. C.S. § 3925(a)); and Allegation 20, Disorderly
Conduct (in violation of 18 Pa. C.S. § 5503(a)(4)).
A Delinquency Hearing was scheduled before the Honorable Daniel J. Brabender for
January 26, 2016. On January 22, 2016, Appellant, represented by Jason A. Checque, Esquire,
filed a Motion to Continue, seeking to continue the Delinquency Hearing due to a scheduling
conflict and additional time needed to gather medical records and interview witnesses. Judge
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Brabender granted Appellant's Motion to Continue.rand a Delinquency Hearing was scheduled
for February 4, 2016 at 1 :30 p.m. before this Court.
On February 4, 2016, the day of the Delinquency Hearing, Appellant filed another
Motion to Continue, seeking to continue the Delinquency Hearing due to Appellant's medical
appointment at 2:30 p.m. This Court denied Appellant's Motion to Continue. However, this
Court spoke with Appellant's medical personnel and agreed to make Appellant available
between 3:00 p.m. and 3:30 p.m. so that Appellant could attend his medical appointment.
Accordingly, the Delinquency Hearing was held on February 4, 2016. The
Commonwealth, represented by Jonathan W. Neenan, Esquire, called its first two witnesses,
Officer Gabriel Carducci and Officer Nicholas Bernatowicz. After the two officers testified, the
Court recessed and the trial was continued so that Appellant could attend his scheduled medical
appointment. On February 11, 2016, the Court reconvened. The Commonwealth called Officer
Jason Russell and the victims, Destiny Belle and Latasha Barnett. Following this testimony, the
Commonwealth rested its case. Counsel for Appellant made a Motion for Judgment for
Acquittal for Allegation 14, Burglary and Allegation 16, Receiving Stolen Property. The Court
denied Appellant's request and the matter proceeded.
The Court subsequently conducted a colloquy with Appellant concerning his
constitutional rights, including his right not to testify. Appellant informed the Court of his desire
to testify on his own behalf and forego his constitutional right to remain silent. The Court found
that Appellant knowingly and voluntarily waived his right not to testify. Following Appellant's
testimony, Appellant rested. Both Appellant and the Commonwealth made a closing statement.
Following the conclusion of the Delinquency Hearing, the Court stated its findings of fact
on the record. The Court did not find the testimony of Appellant credible. The Court found that
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Commonwealth's witnesses were credible. The Court found that the Commonwealth had proven
beyond a reasonable doubt that Appellant had committed: Allegation 13, Aggravated Assault;
Allegation 14, Burglary; Allegation 15, Criminal Trespass; Allegation 17, Resisting Arrest or
Other Law Enforcement; Allegation 18, Theft by Unlawful Taking or Disposition; and
Allegation 20, Disorderly Conduct. The Court held that Allegation 19, Receiving Stolen
Property, merged with Allegation 18, Theft by Unlawful Taking or Disposition. The Court held
in abeyance its ruling on Allegation 16, Receiving Stolen Property, to allow counsel for
Appellant the opportunity to submit a brief on the issue of whether a person who is a passenger
in a stolen vehicle could commit the crime of Receiving Stolen Property with respect to the
stolen vehicle.
On February 17, 2016, Counsel for Appellant submitted a Motion to Reconsider
Adjudication(s) of Delinquency. In addition to addressing the issue relating to Allegation 16,
Receiving Stolen Property as it related to being a passenger in a stolen vehicle, Appellant also
asked this Court to reconsider Allegation 13, Aggravated Assault; Allegation 14, Burglary; and
Allegation 15, Criminal Trespass.
A Dispositional Hearing was held on February 23, 2016. The Court heard arguments
from Appellant and the Commonwealth regarding Appellant's Motion to Reconsider
Adjudications of Delinquency. The Court sustained its findings that Appellant committed
Allegation 14, Burglary and Allegation 15, Criminal Trespass. The Court further found that the
Commonwealth had proven beyond a reasonable doubt that Appellant committed Allegation 16,
Receiving Stolen Property. This Court granted Appellant's request regarding Allegation 13 and
thereby amended Aggravated Assault to Simple Assault. After considering the Court Summary
and statements of the parties, the Court then found Appellant in need of treatment, supervision,
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and rehabilitation and, consequently, adjudicated him delinquent. The Court ordered Appellant
to be placed at Loysville Youth Development Center (hereinafter "Loysville") for two to three
months, with a possible transition to George Junior Republic if Appellant was on positive status
at Loysville. Also the Court ordered Appellant to pay $1,620.99 in restitution. In an Order dated
February 25, 2016, the Court modified its previous Order and thereby ordered Appellant to pay
restitution in the amount of $1,361.00.
On March 4, 2016, Appellant filed Post Dispositional Motions, which included a
"Motion to Reconsider Juvenile's Motion to Reconsider Adjudications of Delinquency,"
"Motion for [sicJ Reconsider Juvenile to Pay Restitution," and "Motion to Reconsider Placement
at Loysville YDC." On March 8, 2016, this Court issued an Order denying Appellant's Motions.
Appellant filed the instant Notice of Appeal on April 8, 2016.1 On April 19, 2016, this
Court ordered Appellant to file a concise statement of matters complained of on appeal, pursuant
to Pa. R.A.P. 1925(b), within twenty-one days. On May 11, 2016, Appellant filed his "Statement
of Matters Complained of on Appeal."
The Court will now address the relevant facts of the instant case.
B. Factual History
The Commonwealth first called Officer Gabriel A. Carducci, a patrolman with the City of
Erie Police Department, to testify. Delinquency Hearing Transcript (hereinafter "D.H.T."),
February 4, 2016 at 4-5. Officer Carducci testified that while working third shift at
approximately 1 :00 a.m. on Monday, January 18, 2016,2 during a routine patrol in the City of
Erie, he spotted a late model white Ford Explorer at West 18th Street and Liberty Street. Id. at 6,
1
This Court was not, however, served a copy of the Notice of Appeal until April 19, 2016, eleven days after the
Notice of Appeal was filed and Counsel for Appellant certified that he served this Court.
2
The Court takes judicial notice that Monday, January 18, 2016 was Martin Luther King, Jr. Day.
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12; 3 7. The Ford Explorer matched the description of a vehicle that had been reported stolen
within the previous few days. Id. at 6. Officer Carducci testified that the description of the
vehicle had been given to him on roll call for several days. Id. Officer Carducci turned his
police cruiser around so he could follow the Ford Explorer. Id. at 6- 7. By the time he turned
around, the Ford Explorer was no longer visible. Id. at 7. On this particular late evening and
early morning, there had been a severe snow storm, and Officer Carducci was able to catch up to
the Ford Explorer by following the vehicle's tracks in the fresh snow. Id. Due to the inclement
weather and early morning hours, there were not many vehicles on the road and it was therefore
easier to follow the tracks ofthe Ford Explorer. Id at 12-13, 37. Officer Carducci spotted the
Ford Explorer again at zo" Street and Sassafras Street within five minutes. Id. at 7. He began
following the vehicle, and called on the radio to report he was following a vehicle matching the
description of the Ford Explorer that had been reported stolen. Id. Another Erie Police
Department vehicle occupied by Office Nicholas Bernatowicz crossed paths with the Ford
Explorer on State Street, and the Ford Explorer began to rapidly accelerate. Id. at 8-9. Officer
Carducci activated his emergency lights and sirens as he continued to follow the Ford Explorer.
Id. at 10. In an apparent attempt to evade police, the Ford Explorer went through traffic lights
and stop signs at a speed of upwards of fifty miles per hour in a twenty-five mile per hour zone.
Id. at 11, 14. At 245 East 22nd Street, the driver of the vehicle lost control, hit a tree, and the
Ford Explorer came to a stop. Id. at 14.
Officer Carducci observed two people exit the vehicle: a driver, who went northbound,
and a front seat passenger, who went southbound. Id at 14-15. Officer Carducci exited his
vehicle and chased the driver of the vehicle. Id. at 15. Officer Bernatowicz gave chase to the
passenger of the vehicle. Id Officer Carducci apprehended the driver of the vehicle, J.G. Id. at
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16. Officer Carducci returned to the Ford Explorer, and was able to identify the owner of the
vehicle as Latasha Barnett. Id. at 17-18. He also verified that this Ford Explorer was the same
vehicle that had been reported stolen by using the vehicle's identification number. Id at 18.
Finally, Officer Carducci testified that Appellant's booking sheet listed the items Appellant had
on his person, which included a prescription pill bottle for Venlafaxine belonging to Latasha
Barnett. Id. at 3 4.
The Commonwealth next called Officer Nicholas Bernatowicz, a patrolman and SW AT
operator with the City of Erie Police Department. Id. at 43-44. Officer Bernatowicz testified
that he responded to Officer Carducci's radio call around 1 :00 a.m. while he was working third
shift. Id. at 46. He was on East 24th Street headed toward State Street. Id. at 46-47. Officer
Bernatowicz saw the Ford Explorer coming down the hill on State Street as he went through the
intersection of State Street and East 24th Street. Id. at 47. Officer Bernatowicz saw that there
were two black males in the vehicle, and identified Appellant as the person sitting in the front
passenger seat. Id. at 47-48. The Ford Explorer went through the intersection without stopping,
and began to accelerate at a high rate of speed. Id. at 49. Officer Bernatowicz turned his vehicle
around, turned on his emergency lights and siren, and pursued the Ford Explorer. Id. at 49, 62.
Officer Carducci's vehicle was directly behind the Ford Explorer, and Officer Bernatowicz's
vehicle was directly behind Officer Carducci's vehicle. Id. at 49-50. Officer Bernatowicz
observed the Ford Explorer lose control and hit a tree. Id. at 50. As Officer Bernatowicz was
pulling up to the scene of the crash, he saw two people exit from the vehicle. Id. at 50, 64. As
the driver ran north and Appellant ran south, Officer Bernatowicz pursued Appellant and Officer
Carducci followed the driver. Id. at 50-51.
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Officer Bernatowicz cleared the Ford Explorer and found no other occupants. Id. at 51,
64. Next, Officer Bernatowicz, in full police uniform, gave chase to Appellant. Id. at 51, 57.
Officer Bernatowicz gave Appellant verbal commands to stop, but Appellant did not comply. Id.
at 51. Instead, Appellant ran south toward an alley. Id. Appellant was ahead of Officer
Bernatowicz, but Officer Bernatowicz was able to follow Appellant because he could easily
identify Appellant's footprints in the recent snowfall. Id. at 52. Officer Bernatowicz followed
the footprints west through a backyard, over two fences, and through an alley. Id. at 51-52, 65.
In the alley, the footprints led to a vehicle with an open door, and went in one side and out the
other. Id. at 51-52, 65, 67. Officer Bernatowicz cleared the open vehicle with the help of
Officer Jason Russell who joined him in the pursuit of Appellant at the open vehicle. Id. at 51.
The Officers continued to follow the footprints over fences, across a park, and ultimately to a
single car detached garage located at 2224 Holland Street. Id. at 52, 65, 69. Officer
Bernatowicz testified that Appellant did not live at 2224 Holland Street. Id. at 61. In total, the
Officer Bernatowicz pursued Appellant for one and a half to two blocks. Id. at 51-52, 66. At no
point during the.chase did Appellant stop, despite being pursued by two uniformed police
officers and their repeated verbal commands. Id. at 67.
The footprints led into the garage. Id at 52. Officer Bernatowicz gave Appellant
commands from outside the garage to show his hands. D. HT., February 11, 2016 at 10, 21. As
he did not receive a response, Officer Bernatowicz went through the partially open man door to
the garage with his weapon drawn and turned left. D.H T., February 4, 2016 at 53, 68. The
garage was pitch black, but Officer Bernatowicz had a flashlight attached to his weapon. Id. at
53, 55, 74. Appellant was standing in the left comer of the garage. Id. at 53. Officer Russell
entered the garage after Officer Bernatowicz. Id. at 53, 71- 72. Officer Bernatowicz testified that
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Appellant was six to seven feet away, had a black object in his right hand, and stood at a "bladed
stance" with half his body turned away from Officer Bernatowicz. Id. at 54-55, 69, 72-73.
Officer Bernatowicz repeatedly commanded Appellant to show him his hands. Id. at 55.
Appellant failed to comply, turned his back towards Officer Bernatowicz, and reached towards
the waistband of his pants.' Id. at 55, 71. Officer Bernatowicz re-holstered his weapon,
approached Appellant, and grabbed ahold of him. Id. at 56. Appellant attempted to get free
from Officer Bernatowicz's grasp and to escape through the man door. Id. at 56, 77. Officer
Bernatowicz could feel force as Appellant struggled and resisted arrest, ultimately striking
Officer Bernatowicz in the right knee. Id. at 56-57, 77-78. Officer Bernatowicz got Appellant to
the ground, where Appellant continued to struggle and tried to break free. Id. at 57, 80.
Appellant moved his hands underneath him, in a further attempt to resist arrest. Id. at 57. With
the help of Officer Russell, Officer Bernatowicz was able to get Appellant's hands behind his
back and handcuff him. Id. at 57-58, 80. While Appellant was on the ground, Officer
Bernatowicz gave him repeated commands to stop resisting, to release his hands from under his
body, and to let go of objects he was holding. Id. at 58. Officer Bernatowicz and Officer Russell
conducted a search incident to arrest of Appellant. Id. at 59-60. They recovered multiple items,
including a prescription pill bottle that was found in Appellant's left pocket. Id. at 60. The
booking sheet indicated that the pill bottle contained Venlafaxine belonging to Latasha Barnett.
Id. at 34.
The Commonwealth next called Officer Jason Russell, a patrolman with the City of Erie
Police Department. D. HT, February 11, 2016 at 4. Officer Russell testified that on January 18,
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It is worthy to note that in spite of Appellant's conduct and level of defiance, Officer Bernatowicz established a
factual predicate that may have warranted the use of deadly force. This Court recognized that this issue is thankfully
not before the Court and it is only because of the sound judgment and exercised experience of a seasoned veteran.
As noted, the Court found that the conduct of the officers, especially Officer Bernatowicz, was particularly
commendable.
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2016, he was working third shift. Id. at 5. He heard Officer Carducci's radio broadcast that the
Ford Explorer was eluding him and joined in the pursuit. Id. at 5-6. Officer Russell heard on the
radio that the Ford Explorer had crashed in the 200 block of East 24th Street and that both
occupants had fled from the vehicle on foot. Id. at 6. He stopped his vehicle in the 200 block
East 25th Street to establish a perimeter. Id. Officers Carducci and Bernatowicz were already at
the scene. Id. Officer Russell assisted Officer Bernatowicz in the pursuit of the passenger of the
Ford Explorer, and joined Officer Bernatowicz at the vehicle in the alley. Id. at 6-7. The
Officers cleared the vehicle, and followed the footprints westbound. Id. at 7. Officer Russell
testified that they scaled two fences and followed the footprints across Holland Street into a park,
leading to a garage at 2224 Holland Street. Id. at 7-8. The footprints led to the garage's man
door, located at the comer of the garage. Id. at 8.
Officer Russell heard Officer Bernatowicz give the individual inside the garage
commands to show his hands while both officers were outside the garage. Id. at 21. As was
testified to by Appellant, Appellant heard police voices outside of the garage but did not come
out, and instead backed into the comer of the garage. Id. at 67-69. As no one exited the garage,
Officer Bernatowicz entered the garage through the man door, followed by Officer Russell. Id.
at 8. Officer Russell cleared the back comers of the garage as Officer Bernatowicz focused on
the individual inside the garage. Id. at 8-9. Officer Russell heard Officer Bernatowicz ordering
the individual to show his hands and get on the ground. Id. at 9-10. When Officer. Russell
finished clearing the back comers of the garage, he turned around and saw Officer Bernatowicz
in contact with the individual. Id. at 23-24. Officer Russell identified R.M. as the individual in
the garage at 2224 Holland Street. Id. at 9. Officer Russell testified that Officer Bernatowicz
closed the distance between himself and R.M. and then grabbed Appellant in an attempt to
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handcuff him .: Id. at 10. Officer Russell testified that Appellant was 'not coin pliant, and that
Appellant was trying to get through or around Officer Bernatowicz. Id. at 9. Officer Russell
holstered his weapon and helped Officer Bernatowicz get Appellant to the ground. Id.
Appellant struggled on the ground and resisted the officers. Id. Officer Russell got Appellant's
left arm out from underneath him, while Officer Bernatowicz got Appellant's right arm out from
underneath him, and the two were able to handcuff Appellant. Id. at 10-11. Officer Russell did
not see any objects in Appellant's hand. Id. at 23. No weapons were found on Appellant or in
the garage. Id. at 29. Officer Russell testified that he and Officer Russell performed a search
incident to arrest of Appellant and found an orange pill bottle in Appellant's left pocket. Id. at
11-12. The pill bottle listed the name Latasha Barnett and identified the prescriptive drug as
Venlafaxine. Id. at 18.
The Commonwealth then called Destiny Belle, the owner of the one-car garage located at
2224 Holland Street. Id at 34-35. Ms. Belle testified that she was sleeping in the early morning
hours of January 18, 2016, when her children woke her up because they saw, from their bedroom
window, police officers outside of their garage. Id. at 35, 40-41. Ms. Belle testified that she
knew Appellant because he was her son's friend and had been over to her house on multiple
occasions. Id. at 36, 39. Ms. Belle had always given Appellant permission to come into her
house, but had never given him permission to be in her garage at 1 :00 a.m. Id. at 41-43. Ms.
Belle testified that she had not given Appellant permission to be in her garage on January 18,
2016. Id. at 37. Ms. Belle testified that no one had permission to be in her garage that night, and
that her garage was not open to the public nor was it abandoned. Id. at 35-36.
The Commonwealth called its last witness Latasha Barnett, the owner of the Ford
Explorer. Id. at 44-45. Ms. Barnett testified that she owned a 2013 pearl white Ford Explorer.
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Id. at 45. -The Ford Explorer was titled in her name, with Maurice Martin, the father of her
children, as the co-owner. Id. at 46, 55. Ms. Barnett reported her Ford Explorer stolen on
January 16, 2016. Id. at 45. Ms. Barnett testified that the last time she saw the vehicle before it
was stolen was at 12:00 a.m. on January 16, 2016 when it was parked in front of her house at 242
East 251h Street. Id. at 45-46. Ms. Barnett testified that she does not know Appellant. Id. at 46.
Ms. Barnett stated that Mr. Martin had permission to use the vehicle, but that Appellant did not
have permission to use the vehicle. Id. at 46, 56. Ms. Barnett had never seen Appellant before,
and had not seen Appellant get into the vehicle. Id. at 49. Ms. Barnett testified that on January
18, 2016, she received a call from the City of Erie Police Department that they had recovered her
vehicle. Id. at 45. When Ms. Barnett saw her Ford Explorer after January 18, 2016, it was
totaled. Id. at 47. Ms. Barnett testified that she kept jewelry, car seats, two televisions, games,
and her medication in her vehicle. Id. at 47-48. Ms. Barnett testified that she kept her
medication in the center console of her vehicle. Id. at 49.
After the Commonwealth rested, Appellant waived his right to remain silent and testified
in his own defense. Id at 61, 65. Appellant admitted that he knew the Ford Explorer was stolen.
Id. at 84. Appellant admitted that he was the passenger in the stolen Ford Explorer. Id.
Appellant also admitted to possessing Ms. Barnett's prescription pill bottle for Venlafaxine. Id.
at 79. Appellant admitted to knowing he was being chased by police officers from 24th Street
and Sassafras Street. Id. at 83. Appellant further admitted that he was trying to "get away" from
the officers. Id.
Despite having previously been to Ms. Belle's house, Appellant conceded that he did not
have permission to be on her property at approximately 1 :20 a.m. or in her garage. Id. Appellant
testified that once inside the garage, he leaned on the man door for five to ten minutes before he
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. heard police voices outside. Id. at 67-69. Appellant heard commands and a police officer say "Is
anyone inside the garage?" Id. at 69, 84. Appellant testified that he did not respond or go
outside, but instead started to go towards the corner of the garage. Id. at 69, 82.
Appellant testified that three officers came into the garage. Id. at 69. Appellant
identified Officers Bernatowicz and Russel as two of the officers that came into the garage. Id.
at 70. Appellant did not provide a name for the third officer. Id. According to Appellant, all
three officers had their weapons drawn. Id. at 69, 71 - 72. Appellant said that when the officers
entered the garage, he put his hands up in the air and immediately got down on the ground. Id. at
71, 73. Appellant testified that Officer Russell picked him up off the ground and then threw him
to the ground. Id. at 71. According to Appellant, the three officers proceeded to stomp on him,
kick him, and punch him in his ribs. Id. Appellant testified that Officer Bernatowicz stomped on
his right hand with his boot, and that the officers kicked him in his face. Id. at 74-75. Appellant
denied striking any of the officers. Id. at 80. Appellant testified that police officers from the
City of Erie Police Department took him to the hospital on January 18, 2016 and that his hand
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was broken. Id. at 76-77, 88-89. The Court questioned Appellant about this alleged police
brutality. Id. at 85-87. The Court asked Appellant if he received any stitches, to which he
replied no. Id. at 86. The Court asked Appellant if he broke any ribs, to which he replied no. Id.
The Court asked if his eyes were swollen shut from being kicked in the face, and Appellant again
responded no. Id. at 86-87. The Court did not find Appellant's testimony regarding the alleged
police brutality credible. Id. at 111. The Court later found that the trauma to Appellant's right
hand was a result of Appellant's struggle, defiance, and resistance to his arrest, notthe result of
police brutality. Id. at 114.
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DISCUSSION I.
Appellant raises three issues on appeal. The Court will address each issue in seriatim.
A. Sufficiency of Evidence
In his first issue raised on appeal, Appellant states:
Appellant avers and believes that the verdict goes against the sufficiency of the
evidence for the following allegations:
a) Appellant avers and believes that the trial court erred when it
adjudicated Appellant delinquent and subsequently denied Appellant's Post-
Dispositional Motions for Allegation 14 (Burglary) because Appellant did not
have the intent to commit the crime of burglary and/or the evidence does not
substantiate the crime of burglary and/or the Commonwealth cannot meet the
"beyond a reasonable doubt" burden of proof for purposes of the aforementioned
adjudication of delinquency;
b) Appellant avers and believes that the trial court erred when it
adjudicated Appellant delinquent and subsequently denied Appellant's Post-
Dispositional Motions for Allegation 15 (Criminal Trespass) because the
Appellant did not have the intent to commit the crime of criminal trespass and/or
the evidence does not substantiate the crime of criminal trespass and/or the
Commonwealth cannot meet the "beyond a reasonable doubt" burden of proof for
purposes of the aforementioned adjudication of delinquency; and
c) Appellant avers and believes that the trial court erred when it
adjudicated Appellant delinquent and substantially denied Appellant's Post-
Dispositional Motions for Allegation 16 (Receiving Stolen Property) because the
Appellant did not have the intent to commit the crime of receiving stolen property
and/or the evidence does not substantiate the crime of receiving stolen property
and/or the Commonwealth cannot meet the "beyond a reasonable doubt" burden
of proof for purposes of the aforementioned adjudication of delinquency.
App. 's 1925(B) Statement at 1 1.
The standard of review for a sufficiency of the evidence claim is well-settled:
The standard we apply in reviewing the sufficiency of 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 factfinder 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 that of the fact-finder. In
addition, we note that the facts and circumstances established by the
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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. Lambert, 795 A.2d 10 l 0, 1014 (Pa. Super. Ct. 2002) ( quoting Commonwealth
v. Hennigan, 753 A.2d 245 (Pa. Super. Ct. 1996)) (internal citations and quotations omitted);
See also, Commonwealth v. Ratsamy, 934 A.2d 1233, 1236 n.2 (Pa. 2007).
A person commits Burglary in violation of 18 Pa. C.S. § 3502(a)(4) when he "enters a
building or occupied structure, or separately secured or occupied portion thereof that is not
adapted for overnight accommodations in which at the time of the offense no person is present,"
with the intent to commit a crime therein. 18 Pa. C.S. § 3502(a)(4). It is a defense to Burglary
if, at the time of the commission of the offense, the building or structure was abandoned, the
premise was open to the public, or the actor is licensed or privileged to enter. 18 Pa. C.S.
§ 3502(b). Stated simply, "[a] person is guilty of burglary ifhe or she enters a building or
occupied structure with the intent to commit a crime therein, unless he or she is licensed or
privileged to enter." Lambert, 795 A.2d at 1015.
The intent to commit a crime after entry may be inferred from the circumstances
surrounding the incident. While this intent may be inferred from actions as well
as words, the actions must bear a reasonable relation to the commission of a
crime. Once one has entered a private residence by criminal means, we can
infer that the person intended a criminal purpose based on the totality of
circumstances. The Commonwealth is not required to allege or prove what
particular crime a defendant intended to commit after his forcible entry into the
private residence.
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Id. at 1022 (internal citations omitted; emphasis.supplied).
The Commonwealth proved beyond a reasonable doubt each element of Burglary. The
Commonwealth first established that Appellant entered a building not adapted for overnight
accommodations: Destiny Belle's garage. Appellant himself admitted that he entered Ms.
Belle's garage in the middle of the night, and further admitted that he entered the garage to "get
away" from police officers. D.H.T, February 11, 2016 at 67, 79, 82~83. Appellant did not raise
any defense to Burglary, and the record reflects that no defense exists. Ms. Belle testified that
she had not given Appellant permission to be in her garage on that night, no one had permission
to be in her garage that night, her garage was not open to the public, and her garage was not
abandoned. Id. at 35~37. Appellant himself admitted that he did not have permission to enter the
garage. Id. at 83. The Commonwealth was not required to allege or prove what particular crime
Appellant intended to commit after his entrance by criminal means. Lambert, 795 A.2d at 1022.
The record reflects that Appellant entered the garage in the middle of the night without license,
privilege, or permission. These actions permit the inference that Appellant intended a criminal
purpose. See Lambert, supra. For these reasons, Appellant's argument that there was
insufficient evidence for Burglary lacks merit.
A person commits Criminal Trespass in violation of 18 Pa. C.S. § 3503(a)(l)(i) when he,
knowing that he is not licensed or privileged to do so, "enters, gains entry by subterfuge or
surreptitiously remains in any building or occupied structure or separately secured or occupied
portion thereof." 18 Pa. C.S. § 3503(a)(l)(i). It is a defense to Criminal Trespass if the building
or structure was abandoned, the premise was open to the public and the actor complied with all
lawful conditions imposed on access to or remaining in the premises, or the actor reasonably
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believedthat the owner of the premises, or other person empowered to license access thereto,
would have licensed him to enter or remain. 18 Pa. C.S. § 3503(d).
The Commonwealth proved beyond a reasonable doubt each element of Criminal
Trespass. Again, the Commonwealth established that Appellant entered a building: Destiny
Belle's garage. Appellant himself admitted that he entered Ms. Belle's garage in the middle of
the night. D.H T, February 11, 2016 at 67. Ms. Belle testified that her garage was not
abandoned, that no one was permitted to be in her garage, and specifically Appellant was not
permitted to be in her garage. Id. at 35-37. Appellant did not testify that he thought that Ms.
Belle would permit him to be in her garage in the middle of the night. In fact, Appellant
admitted that he did not have permission to enter the garage that night. Id. at 83. Therefore, no
defense to Criminal Trespass is present in this case. Consequently, Appellant's second
insufficiency of evidence claim lacks merit.
A person commits the crime ofreceiving stolen property in violation of 18 Pa. C.S.
§ 3925(a) when "he intentionally receives, retains, or disposes of movable property of another
knowing that it has been stolen, or believing that it has probably been stolen, unless the property
is received, retained, or disposed with intent to restore it to the owner." 18 Pa. C.S. § 3925(a).
"Receiving" is defined as "acquiring possession, control or title, or lending on the security of the
property." 18 Pa. C.S. § 3925(b). "To convict [A]ppellant of theft by receiving stolen property,
the Commonwealth was required to prove beyond a reasonable doubt that the car had been
stolen, that [A]ppellant had been in possession of it, and that he had known or had reason to
know it was stolen." In re Scott, 566 A.2d 266, 267 (Pa. Super. Ct. 1989).
The Commonwealth proved beyond a reasonable doubt each element of receiving stolen
property. First, the Commonwealth established that the vehicle was stolen. The Commonwealth
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· offered testimony to prove that Latasha Barnett was the owner of the Ford Explorer in question:
Officer Carducci testified that the vehicle identification number from the Ford Explorer that he
gave chase to matched the vehicle identification number from the vehicle that Latasha Barnett
reported stolen. D.H T., February 4, 2016 at 18. Second, the Commonwealth proved that
Appellant was in joint and constructive possession of the stolen Ford Explorer. The evidence
reflects that Appellant was the passenger in the Ford Explorer. In fact, Appellant himself
admitted that he was the passenger in the Ford Explorer. D.HT., February 11, 2016 at 84.
Additionally, Appellant was in possession of Latasha Barnett's pill bottle, which she testified she
kept in the center console of her Ford Explorer. Id. at 49. The fact that Appellant had the pill
bottle illustrates that he had dominion and control over the vehicle under a theory of joint and
constructive possession. Third, the Commonwealth established that Appellant knew that the
vehicle was stolen. Appellant admitted on the stand that he knew the Ford Explorer was stolen.
Id. at 84.
Appellant has argued that he cannot be guilty of receiving stolen property because he was
only a passenger in the stolen vehicle and did not drive the stolen vehicle. This argument is
without legal merit. The case sub Judice is almost factually identical to In re Scott, supra. In
Scott, police officers observed a car speeding, going through a stop sign, and ultimately striking
two parked vehicles. 566 A.2d at 267. The driver and the passenger of the vehicle leaped from
the vehicle and ran in different directions. Id. Officer Panikowski pursued the passenger of the
vehicle as he ran down an alley. Id. Officer Panikowski lost sight of the passenger, but
moments later saw the passenger walking towards him. Id. Officer Panikowski apprehended the
passenger, who he identified as Andre Scott. Id. The vehicle was found to have been stolen. Id.
17
Scott testified that he had not been a passenger in the vehicle and had not run from the police.
Id. Scott was adjudicated delinquent for, inter alia, receiving stolen property. Id. at 266.
Since there was no evidence that Scott had been driving the stolen vehicle, the
Commonwealth contended that Scott had been in joint or constructive possession of the vehicle.
Id. at 267. The Superior Court held that it was not fatal to the Commonwealth's case if they
could not prove that a passenger in a stolen vehicle actually drove the vehicle. Id. at 268. In
Scott the Court stated that where "the trier of fact finds that appellant was either driving or riding
in a vehicle he knew was stolen" and "attempted to escape with his companion ... there is a
sufficient basis for the fact finder to apply the doctrine of joint possession, which is appropriate
when the ' ... totality of the circumstances justify a finding that all of the occupants of the vehicle
were acting in concert.'" Id. (citing to Commonwealth v. Murray, 371 A.2d 910 (Pa. Super. Ct.
1977)). "Under this doctrine, it is immaterial that appellant may not have been behind the
wheel of the stolen vehicle." Id. (emphasis supplied). The Scott Court went on to state that:
"[W]here a passenger in a stolen vehicle flees for the purpose of avoiding arrest, a fact finder
may infer therefrom the dominion and guilty knowledge necessary to convict." Id. at 269.
Based on these standards, the Superior Court held that there was sufficient evidence to convict
Scott of theft by receiving stolen property. Id.
Scott makes clear that a passenger of a vehicle can be convicted of theft by receiving
stolen property. In this case, Appellant was in joint or constructive possession of stolen the Ford
Explorer. Appellant, like Scott, fled from the vehicle to avoid arrest. Appellant admitted that he
was trying to "get away" from the police officers. D.HT., February 11, 2016 at 83. This fleeing
allows the fact finder to infer guilty knowledge. See In re Scott, 566 A.2d at 266. However, this
inference is not even necessary in this case because Appellant admitted that he knew the vehicle
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. he was a passenger in was stolen. D.HT.; Febmary 11, 2016 at 83-84. Appellant had the
dominion and guilty knowledge necessary to convict him of theft by receiving stolen property.
Thus, there was sufficient evidence to support Appellant's adjudication and his claim of
insufficiency thereby warrants dismissal.
B. Restitution
In his second issue raised on appeal, Appellant argues:
Appellant avers and believes that the trial court erred when it determined that
Appellant owed restitution for damages to the motor vehicle, for damages to any
tangible property located within the motor vehicle (except with regards to
Allegations 18 and 19), and/or for damages to any tangible property not located in
the motor vehicle ( except with regards to Allegations 18 and 19), especially with
the trial court's finding that Appellant was adjudicated delinquent at Allegation
16 (Receiving Stolen Property).
App.' s 1925(B) Statement at 12.
The Pennsylvania Supreme Court has held:
[O]ne of the purposes of the Juvenile Act is to hold children accountable for their
behavior. Accordingly, the Juvenile Act authorizes the court to "order [ ]
payment by the child of reasonable amounts of money as fines, costs or restitution
as deemed appropriate as part of the plan of rehabilitation concerning the nature
of the acts committed and the earning capacity of the child." 42 Pa.C.S.A.
§ 6352, Disposition of delinquent child, (a) General rule.-(5). Consistent with the
protection of the public interest and the community, the rehabilitative purpose of
the Juvenile Act is attained through accountability and the development of
personal qualities that will enable the juvenile offender to become a responsible
and productive member of the community. Thus, the policies underlying the
Juvenile Act and its restitution provision, as well as the plain language of Section
6352, serve to invest the juvenile court with a broad measure of discretion to
apportion responsibility for damages based upon the nature of the delinquent act
and the earning capacity of the juvenile.
19
In re .M.W,-725 A.2d 729, 732--33 (Pa. 1999). Trial courts have broad discretion in
awarding restitution. In re D.G., 114 AJd 1091, 1098 (Pa. Super. Ct. 2015). "In
reviewing an order of restitution, discretion is abused where the order is speculative or
excessive or lacks support in the record." Id. at 1097.
Appellant is not objecting to the calculation ofrestitution that he was ordered to
pay, but rather is objecting to the fact that he has to pay any restitution other than for the
pill bottle. Counsel for Appellant has never raised an objection this Court's calculation
of the amount of restitution. For the reasons set forth below, Appellant's argument that
he is not responsible for any restitution other than for the pill bottle is without merit.
The Court acted within its broad discretion in awarding restitution in this case.
Ms. Barnett's Ford Explorer was totaled when it hit a tree during the police chase on
January 18, 2016. D.H.T. February 11, 2016 at 47. As recognized previously, this Court
found Appellant responsible for Receiving Stolen Property of the Ford Explorer.
Additionally, a number of items contained in the Ford Explorer were damaged or never
found, including: jewelry (bangles and three rings), $250.00 cash, two booster seats, 40
caliber clip with ammunition, two DS XL hand games, two RCA portable televisions, and
kids games. These were itemized by the victim, Latasha Barnett, and the receipts were
set forth on the record. Dispositional Transcript ("D.T"), February 23, 2016 at 10-12.
The Court was also provided receipts of items documenting the amount of loss to Ms.
Barnett. The Commonwealth argued that the loss to the victim was $3,241.99, and that
Appellant should be responsible forhalf($1,620.99). Id. at 10-12, 25. After hearing
arguments from Attorney Neenan and Attorney Checque at the February 23, 2016
Dispositional Hearing, the Court ordered Appellant to pay $1,620.99. Id. at 10-12, 25-26.
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However, as stated on the record.fhe.Court reviewed the receipts again and on February
25, 2016 modified the restitution order and lowered the amount of restitution to
$1,361.00. See February 25, 2016 Order attached as Exhibit 1. This illustrates the
Court's willingness to be fair and not arbitrary in its award. This amount also signified
that this adjusted loss amount was half of the total loss as determined by the Court. The
total loss was to be split with Appellant's co-defendant, J.G. Restitution is within the
sound discretion of the Court. See In re D.G., supra. This record is saturated with facts
illustrating that this Court considered not only the statements of the victim regarding her
loss, but also receipts admitted by the Commonwealth to support the value of the items
which were missing. The Court also reduced the value of the items and, out of fairness to
Appellant, only ordered he pay half of the amount as opposed to holding him jointly and
severally liable. The Court also considered Appellant's ability to pay and placed him at
Loysville where he would be able to earn restitution. D. T. at 32, 34.
As discussed above, there was sufficient evidence to adjudicate Appellant
delinquent for theft by receiving stolen property in regards to the motor vehicle.
Appellant exercised dominion and control over the Ford Explorer and the items in the
Ford Explorer. Accordingly, it was appropriate that Appellant pay a one-half share of the
restitution for the damages to the motor vehicle and for the items located within the
motor vehicle at the time of the theft. The amount of $1,361.00 represents a fair and
reasonable amount for Appellant to pay as a foreseeable consequence of his criminal
actions regarding the Receiving Stolen Property of the vehicle. This amount reasonably
accounts for the victim's loss, and is an adequate measure of accountability for
Appellant. Accordingly, this claim is without merit.
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C. Placement
In his third and final issue, Appellant states:
Appellant avers and believes that the trial court erred when it determined that
Appellant's best placement option was Loysville Youth Development Center
(YDC) near Loysville, Pennsylvania, which is further from the Juvenile's home
county than other placements that could accomplish the same "treatment,
supervision and rehabilitation" goals such as George Junior Republic near Grove
City, Pennsylvania, especially in this particular case as Juvenile's mother and
sisters visited Juvenile on a daily basis while Juvenile was detained and/or the
denial process was ongoing.
App.'s 1925(B) Statement at ,r 3.
The Juvenile Act "grants the juvenile court broad discretion in determining the
appropriate disposition for a delinquent child," which the Superior Court will not disturb
absent a manifest abuse of discretion. In re D.C.D., 124 A.3d 736, 739 (Pa. Super. Ct.
2015), appeal granted, 134 A.3d 50 (Pa. 2016). If a child is found to be delinquent, the
Court may commit "the child to an institution, youth development center, camp, or other
facility for delinquent children operated under the direction or supervision of the court or
other public authority and approved by the Department of Public Welfare.'' 42 Pa. C.S.
§ 6352(a)(3).
In placing Appellant at Loysville Youth Development Center, the Court
considered Appellant's need for treatment, supervision, and rehabilitation, including his
need for a structured environment. The current acts that Appellant was adjudicated
delinquent on are serious crimes. Three of the acts for which Appellant was adjudicated
delinquent are felonies: Burglary (Allegation 14), Criminal Trespass (Allegation 15), and
Receiving Stolen Property (Allegation 16). Moreover, Appellant had committed six past
22
delinquent acts: Defiant Trespass (in violation of 18 Pa. C.S. § 3505(b)(ii)),4 Simple
Assault (in violation of 18 Pa. C.S. § 2701(a)(l)),5 Harassment (in violation of 18 Pa.
C.S. § 2709(a)(l)),6 Disorderly Conduct (in violation of 18 Pa. C.S. § 5503(a)(3)),7
Terroristic Threats (in violation of 18 Pa. C.S. § 2706(a)(l )), 8 and Disorderly Conduct (in
violation of 18 Pa. C.S. § 5503(a)(l )).9 In fact, Appellant had previously been placed out
of his home for acts of delinquency. On August 11, 2015, Appellant was placed at the
Cornell Abraxas Leadership Development Program (hereinafter "Abraxas"). It is not
lost on the Court that Appellant had been discharged from Abraxas on December 12,
2015, just over a month before he committed the delinquent acts that are the subject of
this appeal. D. T. at 2.
Also in this matter, the Court indicated that it had read and considered the Court
Summary and made it part of the record. Id at 3. The Court considered that Appellant
needed a program with a strong educational component, which Loysville offers. Id. at
32, 34. The Court also considered that Appellant would be able to earn restitution at
Loysville. Id at 32, 34. The Court did take into account Appellant's request to be placed
closer to home so that his family could visit him. Id. at 33-34. The Court ordered that
Appellant remain at Loysville for only two to three months, with a possible transition to
George Junior Republic if Appellant was on positive status at Loysville. Id. at 38.
Again, the Court considered in great detail the juvenile's need for treatment, supervision,
and rehabilitation, and balanced those considerations with the need to protect the
4
At Juvenile Docket 216 of 2014.
5
At Juvenile Docket 93 of 2015.
6
At Juvenile Docket 93 of 2015.
7
At Juvenile Docket295 of 2015 ..
8
At Juvenile Docket 322 of 2015.
9
At Juvenile Docket 322 of 2015.
23
·. community.and to account for the impact on the victim and the need to financially
compensate her. Accordingly, the Court did not abuse its broad discretion in placing
Appellant at Loysville.
CONCLUSION
For the reasons set forth above, R.M.'s appeal should be dismissed.
BY THE COURT:
cc: .!Jonathan W. Neenan, Esquire, Assistant District Attorney
./ Jason A. Checque, Esquire
vRobert J. Blakely, Chief Juvenile Probation Officer
24