In the Interest of: J.J., a Minor ( 2016 )

J-S55044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.J., A MINOR, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
APPEAL OF: J.J., A MINOR
No. 2071 EDA 2015
Appeal from the Dispositional Order June 9, 2015
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0003239-2014
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 18, 2016
J.J. (hereinafter “Juvenile”) appeals from the dispositional order
entered in the Court of Common Pleas of Philadelphia County on June 9,
2015, following his delinquency adjudication for Robbery, Conspiracy, Theft
by Unlawful Taking, and Simple Assault.1 Following a review of the record,
we affirm.
The juvenile court set forth the relevant procedural and factual history
herein as follows:2
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1
18 Pa.C.S.A. §§ 3701(a)(1)(ii); 903(c); 3921(a); 2701(a), respectively.
The Juvenile Court dismissed a charge for Possession of an Instrument of
Crime, 18 Pa.C.S.A. § 907(a).
2
The facts and procedural history are derived from the transcripts of
Juvenile’s adjudication hearing at which time Juvenile was tried together
(Footnote Continued Next Page)
*Former Justice specially assigned to the Superior Court.
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PROCEDURAL HISTORY
Prior to their juvenile delinquency hearing co-defendants
[Juvenile] and JG jointly filed a motion to suppress in court and
out of court identification evidence alleging the process and
identifications violated the co-defendants' due process rights.
The motion was denied and an adjudication hearing was held
wherein defendants were adjudicated delinquent of robbery as a
felony of the second degree, conspiracy, theft, and simple
assault. This appeal followed.
STATEMENT OF FACTS
At the suppression hearing and subsequent trial, the
Commonwealth offered the testimony of the complainant and
Philadelphia Police Officers Joseph Campbell, Colin Gershert
[sic], and Jeffrey Thompson. The evidence established the
following:
On December 10, 2014, at approximately 10:30 P.M. the
complainant was walking in the area of the 6900 Block of Haines
Street in Philadelphia, Pennsylvania. (N.T. 1/20/15 pgs. 62-63)
As the complainant was walking, five young males approached
him. Id. One of the males approached the complainant from the
back, and placed his arm around the complainant's body. Id.
Another male held an unknown object to the complainant's neck
and said "give it up old head, give it up." (N.T. 1/20/15 pg. 63)
The other three males went through the complainant's pants
pockets. Id. The complainant testified that at this moment he
thought he was going to get shot for nothing. (N.T. 1/20/15 pg.
66) After approximately three minutes, there was a loud noise in
the area and the males scattered. (N.T. 1/20/15 pg. 63) The
complainant was able to see that all of the males were young,
black, and wearing dark hooded sweatshirts. (N.T. 1/20/15 pgs.
70-71) One male in the group stood out to the complainant
because he was wearing a red hooded sweatshirt. (N.T. 1/20/15
pg. 70)
The complainant then went directly to his home and
contacted the police. (N.T. 1/20/15 pgs. 63, 67, 10) Police
Officers arrived at the complainant's home within five minutes.
_______________________
(Footnote Continued)
with his codefendant, J.G. J.G.’s case is on appeal separately with this Court
at No. 1884 EDA 2015.
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(N.T. 1/20/15 pgs. 8-9) There, the complainant told the Officers
about the incident and described the males. (N.T. 1/20/15 pgs.
9, 84) Based on the description the complainant provided, the
Officers sent out a flash description of the five assailants. (N.T.
1/20/15 pg. 9)
Officer Goshert and his partner Officer Thompson received
the flash information while at a location just two blocks from the
6900 block of Haines Street. (N.T. 1/20/15 pgs. 27) At that
location, Officer Goshert observed a group of three young black
males matching the flash information, including the [Juvenile],
who was wearing a red hood sweatshirt, the defendant JG who
was wearing a dark hooded sweatshirt, and another young black
male wearing a dark hooded sweatshirt. Id. As Officer Goshert
and his partner, both in full uniform, approached the males, two
fled on foot while [Juvenile] remained. (N.T. 1/20/15 pgs. 27-
28) Officer Thompson pursued defendant JG and the other male,
while Officer Goshert detained [Juvenile] so that the complaining
witness could be transported to the location to make an
identification. (N.T. 1/20/15 pg. 30) After a brief chase,
defendant JG was apprehended and detained by Officer
Thompson so that the complaining witness could be transported
to make an identification. The complainant positively identified
[Juvenile] as the same individual wearing the red hooded
sweatshirt involved in the incident, and defendant JG as one of
the other males wearing a dark hooded sweatshirt involved in
the incident. Id. [The juveniles] were then handcuffed and
placed under arrest. (N.T. 1/20/15 pgs. 33 -34)
Juvenile Court Opinion, filed 11/9/15, at 1-3.
On January 20, 2015, the juvenile court heard testimony on Juvenile’s
and his co-defendant’s motion to suppress identification and an adjudication
hearing immediately followed. At the conclusion of the hearing, the juvenile
court held the matter under advisement. Ultimately, the juvenile court
entered an order adjudicating Juvenile delinquent of one count each of the
aforementioned charges on April 29, 2015. Juvenile did not file a post-
dispositional motion.
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On July 8, 2015, Juvenile filed a notice of appeal. On July 20, 2015,
the juvenile court ordered Juvenile to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b) “no later than 21
days after entry of such order (on or before August 11, 2015).” 3 On August
11, 2015, Juvenile filed his Statement of Errors Complained of on Appeal
along with his Request for an Extension of Time to File a Supplemental
Statement of Errors Complained of on Appeal wherein he indicated that he
had not yet received the notes of testimony from the adjudicatory hearing
and that upon receiving the complete record in the matter, he may to raise
additional challenges. These documents were filed together with a proof of
service; however, the juvenile court never ruled on Juvenile’s petition for
extension of time.
Notwithstanding, on September 10, 2015, Juvenile filed his
Supplemental Statement of Errors Complained of on Appeal. In his
supplemental statement, Juvenile raised an additional claim of juvenile court
error for permitting the complainant to read into evidence and testify
regarding his statement to police. He also reiterated therein the two
challenges to the juvenile court’s denial of his suppression motion and his
challenge to the sufficiency of the evidence that he had asserted in his initial
concise statement. With regard to the latter, Juvenile expanded his
____________________________________________
3
As we will discuss more fully infra, a timely concise statement was due on
or before August 10, 2015.
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sufficiency challenge to include the crimes of Conspiracy, Theft and Simple
Assault. The juvenile court filed an opinion pursuant to Pa.R.A.P. 1925(a) on
November 9, 2015, wherein it considered the merits of the four issues
Juvenile presented in his Supplemental Statement of Errors Complained of
on Appeal.
In his brief, Juvenile presents the following Statement of the Questions
Involved:
1. Was not the evidence insufficient as a matter of law to
prove robbery, conspiracy, theft and simple assault beyond a
reasonable doubt because [Juvenile’s] involvement is based
upon nothing more than a general similarity of clothing and the
properly admitted circumstantial evidence amounted to little
more than [Juvenile’s] proximity to another male who was also
identified based upon clothing exclusively?
2. Did not the [juvenile] court err in denying [Juvenile’s]
motion to suppress the out-of-court identification because the
show up was unnecessarily suggestive and not otherwise reliable
in violation of the Due Process Clauses of the Pennsylvania and
Federal Constitutions?
3. Did not the [juvenile] court err in admitting the
complainant’s statement to the police over objection where the
complainant had neither been impeached nor did he testify to a
lack of recollection?
Brief for Juvenile at 4.4
____________________________________________
4
In a footnote, Juvenile explained that upon further consideration he had
chosen to abandon his second suppression challenge because officers had
reasonable suspicion to detain him for investigation. Brief for Juvenile at 4.
n. 1.
(Footnote Continued Next Page)
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At the outset, we note that while counsel for Juvenile, apparently
relying upon the erroneous instruction of the juvenile court, indicated that
he had until August 11, 2015, to file his Pa.R.A.P. 1925(b) statement, see
Supplemental Statement of Errors Complained of on Appeal, filed 9/10/15,
at ¶2, twenty-one days from July 21, 2015, was Monday, August 10, 2015.
Furthermore, although Juvenile presented a challenge to the sufficiency of
the evidence and the juvenile court’s denial of his suppression motion in his
Statement of Errors Complained of on Appeal, Juvenile did not raise therein
the third question he presents for our review. Moreover, the sufficiency
challenge Juvenile initially asserted pertained only to the robbery
adjudication, while he lists conspiracy, theft and simple assault in his
supplemental statement. As such, we must consider whether Juvenile’s
initial concise statement and the first and third issues he presents for this
Court’s review, which he first raised in his Supplemental Statement of Errors
Complained of on Appeal, were properly preserved for our review.
We begin by noting it is well-settled in Pennsylvania that the failure to
file a timely Rule 1925(b) statement automatically results in waiver of all
issues on appeal, regardless of the length of the delay in filing. See
Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011). We
further acknowledge that Rule 1925(b) provides that appellants may seek an
_______________________
(Footnote Continued)
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extension of time in which to file a Rule 1925(b) statement beyond the initial
timeframe ordered by the trial court.5 However, this Court has concluded
that a late 1925(b) statement by a criminal defendant represented by
counsel constitutes per se ineffectiveness, and the proper remedy is to
remand for the filing of such a statement nunc pro tunc. Commonwealth v.
Grohowski, 980 A.2d 113, 114 (Pa.Super. 2009), citing Commonwealth
v. Burton, 972 A.2d 428, 433 (Pa.Super. 2009) (en banc); see also
Commonwealth v. Myers, 86 A.3d 286, 289 (Pa.Super. 2014) (observing
that if appellant's Rule 1925(b) statement were late, “we would be obligated
as a matter of our rules of procedure to deem appellate counsel ineffective[]
____________________________________________
5
Rule 1925. Opinion in Support of Order
...
(b) Direction to file statement of errors complained of on appeal;
instructions to the appellant and the trial court.
...
(2) Time for filing and service. The judge shall allow the appellant at least 21
days from the date of the order's entry on the docket for the filing and
service of the Statement. Upon application of the appellant and for
good cause shown, the judge may enlarge the time period initially
specified or permit an amended or supplemental Statement to be
filed. Good cause includes, but it is not limited to, delay in the
production of a transcript necessary to develop the Statement so
long as such delay is not attributable to a lack of diligence in
ordering or paying for such transcript by the party or counsel on
appeal. In extraordinary circumstances, the judge may allow for the filing of
a Statement of amended or supplemental Statement nunc pro tunc.
Pa.R.A.P.1925(b)(2) (emphasis added).
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and to remand for the filing of a Statement nunc pro tunc.”) citing
Pa.R.A.P.1925(c)(3).
Clearly, contrary to counsel’s apparently good-faith belief the initial
concise statement had been timely filed in light of the juvenile court’s
erroneous directive, Juvenile’s Statement of Errors Complained of on Appeal
was untimely; however, he followed the proper procedure for seeking an
extension of time in which to file a supplemental concise statement along
with a proposed order. He also presented a good reason for requesting an
extension of time. In addition, Juvenile promptly filed his supplemental
statement approximately thirty days after the initial filing, and the juvenile
court considered the issues he raised therein. Inexplicably, the juvenile
court never entered an order granting or denying Juvenile’s petition, yet it
did issue a Rule 1925(a) opinion wherein it considered the four issues
Juvenile presented in his supplemental statement without a discussion of
Juvenile’s possible waiver of those claims in light of the aforementioned
procedural anomalies. As such, we find Juvenile properly preserved his
claims for our review, and we will proceed to a consideration of the merits
thereof. See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super.
2009) (stating that even where a concise statement is untimely filed, this
Court may decide the appeal on the merits if the trial court had adequate
opportunity to prepare an opinion addressing the issues being raised on
appeal).
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Juvenile first challenges the sufficiency of the evidence to sustain his
delinquency adjudication. When examining a challenge to the sufficiency of
the evidence supporting an adjudication of delinquency, this Court employs a
well-settled standard of review:
When a juvenile is charged with an act that would
constitute a crime if committed by an adult, the Commonwealth
must establish the elements of the crime by proof beyond a
reasonable doubt. When considering a challenge to the
sufficiency of the evidence following an adjudication of
delinquency, we must review the entire record and view the
evidence in the light most favorable to the Commonwealth.
In determining whether the Commonwealth presented sufficient
evidence to meet its burden of proof, the test to be applied is
whether, viewing the evidence in the light most favorable to the
Commonwealth and drawing all reasonable inferences therefrom,
there is sufficient evidence to find every element of the crime
charged. The Commonwealth may sustain its burden of proving
every element of the crime beyond a reasonable doubt by wholly
circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not be absolutely incompatible with a
defendant's innocence. Questions of doubt are for the hearing
judge, unless the evidence is so weak that, as a matter of law,
no probability of fact can be drawn from the combined
circumstances established by the Commonwealth.
In re V.C., 66 A.3d 341, 348–349 (Pa.Super. 2013) (quoting In re A.V., 48
A.3d 1251, 1252–1253 (Pa.Super. 2012)). The finder of fact is free to
believe some, all, or none of the evidence presented. Commonwealth v.
Gainer, 7 A.3d 291, 292 (Pa.Super. 2010).
The Pennsylvania Crimes Code defines Robbery, in relevant part, as
follows:
(a) Offense defined.
(1) A person is guilty of robbery if, in the course of
committing a theft, he:
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***
(iv) inflicts bodily injury upon another or threatens
another with or intentionally puts him in fear of immediate
bodily injury;
(v) physically takes or removes property from the
person of another by force however slight;
18 Pa.C.S.A. § 3701(a)(1). “Bodily injury” means an “impairment of physical
condition or substantial pain.” Id. § 2301.
The Crimes Code also defines Theft by Unlawful Taking or Disposition
as follows:
(a) Movable property.—A person is guilty of theft if he
unlawfully takes, or exercises unlawful control over, movable
property of another with intent to deprive him thereof.
18 Pa.C.S.A. § 3921(a).
One is guilty of conspiracy to commit a crime with another person or
persons if with the intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one
or more of them will engage in conduct which constitutes
such crime or an attempt or solicitation to commit such
crime; or
(2) agrees to aid such other person or persons in the planning
or commission of such crime or of an attempt or
solicitation to commit such crime.
18 Pa.C.S.A. § 903(a). This requires proof that: 1) the defendant entered
into an agreement with another to commit or aid in the commission of a
crime; 2) he shared the criminal intent with that other person; and 3) an
overt act was committed in furtherance of the conspiracy. Commonwealth
v. Devine, 26 A.3d 1139, 1147 (Pa.Super. 2011). “This overt act need not
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be committed by the defendant; it need only be committed by a co-
conspirator.” Commonwealth v. Murphy, 795 A.2d 1025, 1038 (Pa.Super.
2002) (citation omitted).
Finally, the Crimes Code provides the following definition for Simple
Assault:
(a) Offense defined.—Except as provided under section 2702
(relating to aggravated assault), a person is guilty of assault if
he:
(1) attempts to cause or intentionally, knowingly or
recklessly causes bodily injury to another[.]
18 Pa.C.S.A. § 2701(a)(1).
A review of Juvenile’s argument pertaining to his sufficiency of the
evidence claim, wherein he casts the evidence in a light most favorable to
himself, reveals that he has failed to list, let alone discuss, the
aforementioned elements of robbery, conspiracy, theft by unlawful taking or
simple assault or explain why the evidence did not establish each of those
elements beyond a reasonable doubt. Indeed,
[i]nstead of proffering a proper sufficiency claim, Appellant
instead makes assertions that correspond with an attack raising
weight of the evidence claims. See Commonwealth v.
Dougherty, 580 Pa. 183, 860 A.2d 31, 36 (2004) (holding
sufficiency claim that “there is no credible evidence” is not
sufficiency claim at all; it is a weight claim); Commonwealth v.
Small, 559 Pa. 423, 741 A.2d 666, 672 (1999) (stating
appellate court will not review sufficiency claim where argument
in support of claim goes to weight, not sufficiency, of the
evidence); Commonwealth v. Mack, 850 A.2d 690, 693
(Pa.Super. 2004) (providing no relief where appellant alleged
sufficiency but argued weight; weight issue was reserved for
fact-finder below).
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Commonwealth v. Sherwood, 603 Pa. 92, 106-07, 982 A.2d 483, 492
(2009). Juvenile’s attack on weight rather than sufficiency is clear from
statements like the following contained in his brief:
The record simply does not support the trial court’s
conclusion that [the complainant] made an identification of
anything more than a pair of hoodies and some pants. The
[juvenile] court’s conclusion rests on nothing more than a guess.
Brief for Juvenile at 25.
Although the failure to provide this Court with appropriate argument
and citation to applicable legal authority usually results in waiver, see
Sherwood, 603 Pa. at 107, 982 A.2d at 492; Commonwealth v. Spotz,
552 Pa. 499, 716 A.2d 580, 585 n. 5 (1998), to the extent Juvenile develops
an argument pertaining to the sufficiency of the identification evidence, no
relief is due.
Juvenile’s argument centers around the fact that the complainant was
confused in his identification of Juvenile and J.G. at the hearing and
admitted he identified them to police based upon their clothing. Juvenile
stresses the complainant’s confusion was evident at the hearing, at which
time neither Juvenile nor J.G. was wearing a hoodie, and maintains that the
complainant, in fact, never identified him as an assailant. Brief for Juvenile
at 13-14, 19-20. Juvenile posits “[h]e was adjudicated because when [the
complainant] saw a young man in a red hoodie, he mistakenly believed it
was the same hoodie worn by the person who robbed him fifteen minutes
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earlier.” Id. at 20. Juvenile spends the bulk of argument on this issue
relaying statistics regarding mistaken identifications and discussing caselaw
from this and other jurisdictions in this regard as well as caselaw wherein
the evidence failed to establish probable cause to arrest. Id. at 20-32. For
instance, he notes that red and black hoodies are “common apparel in the
United States” and faults the complainant for failing to mention zippers,
logos, fabric and pocket type or color shade. He posits this is particularly
relevant in a populated area such as Philadelphia, where dozens of people in
the area may have matched the complainant’s description. Id. at 23-24.
Rather than challenge the sufficiency of the evidence to support any of
the applicable elements of any offense, Juvenile contends the evidence was
insufficient to prove that he was one of the individuals who robbed the
complainant. As such, we need not conduct a thorough review of the
evidence to determine whether it can support a finding that all of the
elements of the offenses has been met. Rather, we will focus on the specific
sufficiency issue raised by Appellant: whether the evidence was sufficient to
establish that the complainant properly identified juvenile. When viewed in
a light most favorable to the Commonwealth at the adjudication hearing, we
find it was.
In Commonwealth v. Orr, 38 A.3d 868, 874–75 (Pa.Super. 2011)
this Court stating that despite a victim’s inability to make an in-court
identification of a defendant, a review of entire record including
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circumstantial evidence, the victim’s description of common items of clothing
and of general physical characteristics, along with the victim’s unequivocal
out-of-court-identification to police provided shortly after the crime, may be
considered to establish the identity of that defendant. This Court stressed
that the victim at no time stated he had misidentified the appellant shortly
after the incident, but simply indicated he had been unable to view clearly
the face of one of the perpetrators during the robbery. We further noted
that the trial court, as the finder of fact, had heard the testimony of all
witnesses, was free to make credibility determinations and determined the
evidence had been sufficient to sustain the convictions and that this Court’s
function was not to reevaluate or disturb those credibility determinations.
Id. at 879 n. 5.
Herein, the complainant testified at the adjudication hearing that he
observed the complexion and clothing of the juveniles during the several
minutes the incident ensued and indicated that he did so clearly, for he does
not wear glasses and was not intoxicated at the time. N.T., 1/20/15, at 71.
Complainant also stated he saw the face of the individual wearing the red
jacket and that the person holding the instrument to his neck was a light-
skinned African American. Id. at 70, 76. Complainant unequivocally
identified Juvenile to police whom officers observed wearing a red hooded
sweatshirt less than two blocks from the scene within minutes of the
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incident. Id. We find that such evidence was sufficient to establish that
Appellant was the individual who committed the aforesaid crimes.
Next, Juvenile avers the juvenile court erred in denying his motion to
suppress the complainant’s out-of-court identification of Juvenile because
the procedure utilized to obtain it was unnecessary and unduly suggestive.
Brief for Appellant at 35. In support of this assertion, Juvenile contends at
the time he was identified he was handcuffed, surrounded by police, and
transported to the same block where J.G. had been apprehended. He
further posits he was in the presence of an excessive number of officers and
police cruisers during which time suggestive discussion could be heard over
police radio. Brief for Juvenile at 38-39.
Juvenile also states that, “most importantly” the complainant’s
identification was “patently unreliable.” Id. at 34, 40. Juvenile reiterates
that the Commonwealth presented evidence only that the complainant was
robbed by five African American youth whom he vaguely described based
upon their clothing. Juvenile urges that absent more detailed and reliable
evidence pertaining to the complainant’s opportunity to observe the
individuals, his identification was unreliable and should have been
suppressed. Id. at 40-42.
In reviewing the propriety of identification evidence, the central
inquiry is whether, under the totality of the circumstances, the
identification was reliable. The purpose of a “one on one”
identification is to enhance reliability by reducing the time
elapsed after the commission of the crime. Suggestiveness in the
identification process is but one factor to be considered in
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determining the admissibility of such evidence and will not
warrant exclusion absent other factors.
As this Court has explained, the following factors are to be
considered in determining the propriety of admitting
identification evidence: the opportunity of the witness' [sic] to
view the perpetrator at the time of the crime, the witness'
degree of attention, the accuracy of his prior description of the
perpetrator, the level of certainty demonstrated at the
confrontation, and the time between the crime and
confrontation. The corrupting effect of the suggestive
identification, if any, must be weighed against these factors.
Absent some special element of unfairness, a prompt “one on
one” identification is not so suggestive as to give rise to an
irreparable likelihood of misidentification.
Commonwealth v. Brown, 23 A.3d 544, 558 (Pa.Super. 2011) (en banc)
(internal citations and quotation marks omitted). This Court has found that
“on-scene, one-on-one identifications, even where an appellant is
handcuffed and officers ask a victim to identify him as the perpetrator, are
not so suggestive as to give rise to an irreparable likelihood of
misidentification.” Commonwealth v. Armstrong, 74 A.3d 228, 239
(Pa.Super. 2013) (citation and internal quotation marks omitted), appeal
granted on other grounds, 623 Pa. 560, 83 A.3d 411 (Jan. 8, 2014).
Herein, as we stated supra, the complainant testified he was able to
identify the young males by their clothing and their complexion. He also
informed the juvenile court he saw the face of the individual wearing the red
jacket and holding the instrument to his neck demanding “Give it up, old
head, give it up.” N.T., 1/20/15, at 70. He explained he does not wear
glasses and was not intoxicated at the time of his identification which
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occurred within several minutes of the incident. Id. at 71. While Officer
Campbell testified Juvenile had been handcuffed after the initial stop, Id. at
15, Officer Goshert testified Juvenile was handcuffed after the identification,
and the trial court found Juvenile was not handcuffed when the complainant
identified him. Id. at 30, 33-34, 59-60. In this regard, the trial court
correctly reasoned as follows:
[T]he totality of the circumstances surrounding the victim’s
identifications, particularly the promptness with which they were
completed, indicated to this court that the out of court
identifications were completely reliable. There was no evidence
presented that indicated the presence of special elements of
unfairness that would have given rise to an irreparable likelihood
of misidentification by the witness. While one on one
confrontations between the suspect and victim are highly
suggestive, an on the scene identification made shortly after the
occurrence of the crime does not, by itself, offend a suspect’s
due process rights. Commonwealth v. Moye, 836 A.2d 973
(Pa.Super. 2003). Officer Goshert testified that the complainant
identified [Juvenile] without hesitation as the perpetrator in the
red hooded sweatshirt, and defendant JG as one of the
perpetrators in a dark hooded sweatshirt within minutes of the
incident. (N.T. 1/20/1015 [sic] pg. 30). Additionally, no
corrupting effect was shown to have resulted from the on the
scene identification. Finding no special elements of unfairness,
coupled with the close proximity in time and place to the actual
offense, the identification procedure so enhances the reliability
of the on the scene identification as to outweigh any possibility
of irreparable misidentification that might arise from the witness’
observance of the suspect in police custody. See,
Commownealth v. Allen, 429 A.2d 1113 (Pa.Super. 1981).
Juvenile Court Opinion, filed 11/9/15 at 4-5. Upon our review of the record,
we find the record supports the juvenile court’s factual findings and the legal
conclusions drawn therefrom.
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Indeed, the linchpin in assessing the admissibility of an identification is
reliability. McElrath v. Commonwealth, 592 A.2d 740, 743 (Pa.Super.
1991) (citations omitted). Despite Juvenile’s claim, the reliability of the
complainant’s identification of Juvenile within two blocks of the scene of the
incident is not outweighed by undue suggestion based upon police presence
at the time of the identification or by the fact that he was transported a
short distance to the other end of the block where his codefendant was
being detained. See Commonwealth v. Moye, 836 A.2d 973, 977–978
(Pa.Super. 2003), appeal denied, 851 A.2d 142 (Pa. 2004) (holding that
reliability of victim's identification of defendant made after victim observed
defendant and unhesitatingly identified him in very close temporal proximity
to the commission of the crime was not outweighed by police remarks made
to victim about defendant prior to the identification and when victim
identified defendant while defendant sat in a police van).
Nor is the complainant’s identification outweighed by Juvenile’s
speculation that the complainant may have heard transmissions over police
radio, for the record is devoid of any evidence that he, in fact, did so. Also,
contrary to Juvenile’s assertions, the complainant’s unequivocal identification
of Juvenile on December 10, 2014, is not negated by his later confusion at
the adjudication hearing about which juvenile seated in the hearing room
had been wearing the red hoodie that evening. Consequently, we find no
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special element of unfairness exists so as to give rise to an irreparable
likelihood of misidentification.
Finally, Juvenile avers the juvenile court improperly admitted the
complainant’s police statement into evidence at the adjudicatory hearing as
an exception to Pa.R.E. 803.1.6 Juvenile maintains that because the
complainant did not testify he could not remember the incident or that he
was confused about the relevant details thereof, and to the contrary
answered each question clearly and concisely, his memory did not need to
be refreshed. Brief for Juvenile at 43.7 Moreover, Juvenile claims the
“impermissible introduction of the statement attempts to bolster an
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6
This relevant portion of this Rule provides:
(3) Recorded Recollection of Declarant-Witness. A memorandum
or record made or adopted by a declarant-witness that:
(A) is on a matter the declarant-witness once knew
about but now cannot recall well enough to testify fully and
accurately;
(B) was made or adopted by the declarant-witness when
the matter was fresh in his or her memory; and
(C) the declarant-witness testifies accurately reflects his
or her knowledge at the time when made.
If admitted, the memorandum or record may be read into
evidence and received as an exhibit, but may be shown to the
jury only in exceptional circumstances or when offered by an
adverse party.
Pa.R.E. 803.1(3).
7
Juvenile placed a timely objection on the record to complainant’s reading of
the statement. N.T., 1/20/15, at 72, 74-75.
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otherwise completely insufficient identification” because it suggests the
complainant observed specific characteristics of Juvenile such as his age and
height which had not been included in the initial description the complainant
had provided to police. Id. at 44.
In response to this argument, the juvenile court indicated that during
the hearing,
the complainant appeared to lack sufficient present recollection
to enable him to testify fully and accurately. After the
complainant misidentified the clothing worn by each of the
assailants, the Commonwealth presented the witness with his
statement made to police in an attempt to refresh the witness[’]
recollection. The witness could not testify fully from present
memory. . . The prior statement of the complainant to police
had the indicia of trustworthiness required by the rules and was
never categorically disowned by the complainant. Moreover,
[Juvenile’s] counsel cross-examined the witness concerning his
lack or present recollection.
Juvenile Court Opinion, 11/9/15, at 6-7.
Juvenile’s assertions at this juncture in his brief contradict those he
made earlier in support of his sufficiency of the evidence challenge at which
time he posited the complainant had never been able to identify him and
that the complainant was confused in his identification of Juvenile and J.G.
at the adjudication hearing. Indeed, when objecting to the Commonwealth’s
attempt to show the complainant his statement to police, counsel for
Juvenile admitted “[t]he witness hasn’t testified that he can recall anything--
-and---so I don’t see the basis of showing him something prepared by
another individual.” Id. at 74. After the juvenile court overruled the
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objection, the complainant read his statement wherein he had indicated the
individual who had placed something to his neck and whose face he
observed had been wearing a red jacket. Id. at 75-76. This statement was
in line with Officer Goshert’s earlier testimony that Juvenile had been
wearing a red hooded sweatshirt and was stopped in the immediate area of
the robbery where the complainant identified him. Id. at 35. In light of the
foregoing, we find no error in the juvenile court’s allowing him to read his
statement to police into the record.8
Dispositional Order Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/18/2016
____________________________________________
8
As the trial court notes, any error in this regard would have been harmless,
as the complainant’s statement was merely cumulative of the substantially
similar, properly admitted testimony of officers regarding the complainant’s
contemporaneous identifications of Juvenile and J.G. as two of the co-
conspirators. Trial Court Opinion, filed 11/9/15, at 7. Moreover, where, as
herein, the juvenile court acted as the finder of fact, it is presumed to know
the law and disregard inadmissible evidence. Commonwealth v. Smith,
97 A.3d 782, 788 (Pa.Super. 2014).
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