In the Interest of: Q.C., a Minor, Appeal of: Q.C. ( 2015 )

J-A15025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Q.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: Q.C., A MINOR
No. 2237 EDA 2014
Appeal from the Dispositional Order July 8, 2014
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0004347-2013
BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*
MEMORANDUM BY MUNDY, J.: FILED OCTOBER 07, 2015
Appellant, Q.C., a juvenile, appeals from the juvenile court’s July 8,
2014 order of disposition, following an adjudication of delinquency for
burglary and conspiracy. Q.C. challenges the sufficiency of the evidence
supporting his adjudication. After careful review, we reverse.
The certified record reveals the history of this case. On December 13,
2013, a delinquency petition was filed, alleging Q.C. committed the offenses
of burglary, criminal trespass, criminal mischief, theft by unlawful taking,
receiving stolen property, and loitering and prowling at night. 1 It was
averred that Q.C., together with others, took a vehicle from the premises of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3502(a)(4), 3503(a)(1)(ii), 3304(a)(4), 3921(a), 3925(a),
and 5506, respectively.
J-A15025-15
Complainant, Harrison Motors, a used car dealership. By oral motion,
granted by the juvenile court prior to the adjudication hearing, the petition
was amended to add the charges of unauthorized use of a motor vehicle,
and conspiracy to commit burglary.2 An adjudication hearing took place on
June 18, 2014.
At the adjudication hearing, the Commonwealth called four witnesses.
Officer Katie Lankford testified about the initial investigation into an accident
at 30th Street and Girard Avenue in Philadelphia on July 6, 2013, involving
an abandoned Dodge Caravan. The investigation led to Complainant’s used
car establishment, where police noticed a damaged open gate and several
apparently disturbed and damaged vehicles. Officer Lankford testified about
the damage observed on five vehicles on the lot and identified a photograph
of the damaged gate, marked as Commonwealth exhibit C-1(A).
William Bland, property manager for Complainant, testified that he had
secured the premises the evening before, and that there was no damage to
the gate or vehicles at that time. Bland described photographs of the scene,
marked as Commonwealth exhibits C-1(B) to (J), depicting the state of the
damage on the night of the incident. Bland acknowledged the Dodge
Caravan involved in the accident on Girard Avenue came from Complainant’s
lot. Bland described Complainant’s security system and stated he pulled
video and still shots from the surveillance equipment. He described three
____________________________________________
2
18 Pa.C.S.A. §§ 3928, and 903, respectively.
-2-
J-A15025-15
still shots marked as Commonwealth exhibits C-2(A) to (C). Bland testified
that the premises upon which the vehicles were located was routinely open
to the public during regular business hours. Marvin Harrison, also a
proprietor of Complainant, testified that the total damage to the vehicles and
the gate was $26,000.00.
Detective Earl Martin, testified that, as part of his investigation, he
obtained two useful prints, including a partial right hand palm and right little
finger print found on the outside front driver-side window of one of the
damaged vehicles on the lot. The parties stipulated that the prints were a
match for Q.C. Q.C. was not a match for prints obtained from the Dodge
Caravan.
Q.C. did not testify or present any witnesses. Following the testimony
and arguments by counsel, the juvenile court adjudicated Q.C. delinquent on
the burglary and the conspiracy charges and determined the remaining
charges had not been proven beyond a reasonable doubt. A dispositional
hearing was held on July 8, 2014, at which the juvenile court, noting Q.C.
was subject to placement through an unrelated dependency matter, ordered
-3-
J-A15025-15
Q.C. to remain in current placement per that matter. 3 Q.C. filed a timely
notice of appeal on July 30, 2014.4
On appeal, Q.C. raises the following single issue for our review.
Was not the evidence insufficient to prove beyond a
reasonable doubt that the juvenile committed
delinquent acts which, if committed by an adult,
would constitute the crimes of burglary and
conspiracy because the evidence failed to prove
beyond a reasonable doubt that it was the juvenile
who committed said delinquent acts?
Q.C.’s Brief at 3.
We note the following standards guiding our review of this issue. Our
Supreme Court explained that, “the Juvenile Act requires a juvenile court to
find that a child has committed a delinquent act and that the child is in need
of treatment, supervision, or rehabilitation, before the court may enter an
____________________________________________
3
At a subsequent dispositional review hearing held August 5, 2014, the
juvenile court placed Q.C. on probation.
4
Appellant has complied with Pennsylvania Rule of Appellate procedure
1925(b). In lieu of a Rule 1925(a) opinion, the trial court filed a “Request
the Matter be Remanded and Jurisdiction be Relinquished,” stating as
follows.
Based upon in depth legal research and review of the
case law balanced with the specific fact pattern in
the matter sub judice, [the trial] court, respectfully,
requests that the case be remanded and jurisdiction
be relinquished back to the trial court to reverse it[s]
ruling and enter an appropriate verdict consistent
with [the trial c]ourt’s discovered findings.
Trial Court’s Request the Matter be Remanded and Jurisdiction be
Relinquished, 9/30/14, at 1.
-4-
J-A15025-15
adjudication of delinquency.” Commonwealth v. M.W., 39 A.3d 958, 964
(Pa. 2012) (emphasis in original).
In evaluating a challenge to the sufficiency of
the evidence supporting an adjudication of
delinquency, our standard of review is as follows:
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 [juvenile’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.
-5-
J-A15025-15
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), appeal denied, 80 A.3d 778 (Pa.
2013).
Q.C. concedes the Commonwealth proved that the crimes of burglary
and conspiracy indeed occurred at Complainant’s premises between July 5,
2013 and July 6, 2013. Q.C.’s Brief at 11. Q.C. contends, however that “the
evidence presented which putatively identified [Q.C.] as one of the
perpetrators was insufficient as a matter of law.” Id. Q.C. maintains that
the sole evidence linking him to the burglary is the presence of his handprint
on the exterior front driver-side window of one of the damaged vehicles on
the lot. Id. at 13. Because the evidence established that the car lot in
question was open to the public during business hours, and no testimony
was elicited that the prints could not have been innocently impressed upon
the window prior to the evening of July 5, 2013, Q.C. argues that the
fingerprint evidence is insufficient to identify him as a perpetrator of the
crimes. Id. at 13-14.
In support of his argument, Q.C. cites this Court’s seminal decision in
Commonwealth v. Cichy, 323 A.2d 817 (Pa. Super. 1974). Therein,
reviewing cases from other state and federal jurisdictions, the Cichy Court
concluded “the mere discovery of prints in a public place with which a
number of people may have had innocent contact is insufficient by itself to
convict.” Id. at 818.
-6-
J-A15025-15
If the Commonwealth[] can establish that the prints
were impressed at or about the time the crime was
committed or other circumstances indicate
impression at that time, and the defendant’s
innocent presence is excluded, such evidence has
been held sufficient to convict. On the other hand,
the evidence loses all probative value if the time of
impression is not reasonably limited to the time of
the crime, and the prints found in a generally
accessible location.
Id. at 227 (citations omitted). Thus, the Cichy Court noted the probative
value of fingerprint evidence “depends entirely on the circumstances of each
case.” Id. at 118.
In Cichy, the defendant’s fingerprints were found on a cigarette pack
located on the floor near a vending machine in a public area of the
burglarized premises. Id. The Cichy Court held that the fingerprint
evidence, standing alone, was insufficient to identify Appellant as a
perpetrator of the burglary. Id. at 819; see also In the Interest of
M.J.H., 988 A.2d 694, 699 (Pa. Super. 2010) (holding that the appellant’s
fingerprints located on a clothes rack in a clothes store open to the public
during business hours were insufficient to identify Appellant as a perpetrator
of the burglary); Commonwealth v. Henry, 875 A.2d 302, 306 (Pa. Super.
2005) (holding that the appellant’s fingerprints located on a placard located
inside a stolen vehicle, that had been abandoned for a period of time before
discovery, were insufficient to identify the appellant as a perpetrator of the
unauthorized use of the motor vehicle, because the appellant could have had
-7-
J-A15025-15
access to the interior during the period of abandonment without an intent to
exercise control or dominion over it).
Q.C. concludes, therefore, as follows.
Under these circumstances, where the prints in
question could have reasonably been left at a public
location by a defendant under innocent
circumstances, and there is otherwise a lack of
circumstantial evidence suggesting guilt, the law in
Pennsylvania is clear that fingerprint evidence alone
is insufficient to establish identification of that
defendant as the perpetrator of the charged crimes.
Q.C.’s Brief at 13-14.
The Commonwealth counters that the circumstances of this case
distinguish it from Cichy and other cases relied on by Q.C. Commonwealth’s
Brief at 9-11. First, the Commonwealth distinguishes Cichy by citing cases
where the fingerprints were in a location “not susceptible to a reasonable
inference of innocent contact.” Id. at 9, quoting Commonwealth v.
Marrero, 914 A.2d 870, 872 (Pa. Super. 2006). The Commonwealth
additionally attempts to distinguish Cichy and M.J.H, averring that in those
cases, unlike the instant case, “specific evidence was presented that the
accused had in fact previously visited the victimized business as a legitimate
customer.”
[Q.C.’s] argument ignores that the thirteen-year-old
defendant was not a potential buyer of a used car,
and that his prints were found not on some
innocuous public surface within the lot likely to be
grazed by a licensee but impressed on the driver’s
side window of one of the five cars which were
driven and damaged during the burglary. To reach
-8-
J-A15025-15
the conclusion defendant suggests, this Court would
not only have to read the record in the light most
favorable to him, and draw all reasonable inferences
in his favor, but to assume a highly unlikely
coincidence.
Commonwealth’s Brief at 12. We disagree.
We find the cases relied on by the Commonwealth to be
distinguishable. In those cases, either the location of the print was not in a
place open to the public or to which the defendant had access, or other
circumstances demonstrated the prints were deposited during the
commission of the offense in question. In Marrero, this court found that a
fingerprint provided sufficient evidence of identification where Marrero’s
prints were found inside the engine compartment of a stolen vehicle that had
its engine removed and there was no legitimate public access to that
location. Marrero, supra at 873; see also Commonwealth v. Donohue,
62 A.3d 1033, 1037 (Pa. Super. 2013) (holding that defendant’s fingerprint
found on an opened soda bottle in victim’s basement, which had been
unopened in the kitchen the evening before the subject burglary where
copper piping had been stolen from the basement, was sufficient to identify
the appellant, who was unknown to the victim, as a perpetrator of the
burglary), appeal denied, 74 A.3d 125 (Pa. 2013); Commonwealth v.
Wilson, 392 A.2d 769, 771 (Pa. Super. 1978) (holding that defendant’s
fingerprint found on a closet door and an electric cord used to bind a victim
during a home invasion was sufficient to identify the appellant as a
-9-
J-A15025-15
perpetrator of the burglary where the victims testified that the defendant
had not been in their home before); Commonwealth v. Hunter, 338 A.2d
623, 624 (Pa. Super 1975) (holding that defendant’s fingerprint found on a
piece of sheet metal used to cover a window 10 feet off the ground, through
which access to the building was gained during a burglary, was sufficient to
identify the appellant as a perpetrator of the burglary).
Unlike the cases cited, the fingerprints found in the instant case were
not in an area restricted from public access or at an entry point of a burglary
where innocent contact is improbable. Contrary to the Commonwealth’s
assertion, we conclude the possibility of Q.C.’s innocent presence on the car
lot during business hours sometime prior to the burglary is not dependent on
his status as a potential customer. Nor do we conclude the location of the
prints on the exterior of a driver-side window is an unlikely location to be
contacted by one casually browsing and inspecting cars on the lot. Critical
to our analysis, as well, is the fact that the Commonwealth, in the evidence
presented at the adjudication hearing, provided no indication of the age of
the prints, no indication that Q.C. was not or could not have been on the
premises prior to the burglary, and no indication of the last time the subject
surface had been cleaned. Compare Marrero, supra, Donohue, supra,Hunter, supra, and Wilson, supra. Thus, the inferences urged on us by
the Commonwealth, that the fingerprints could only have been made during
the burglary, stem merely from the existence of the prints themselves and
- 10 -
J-A15025-15
not from any additional evidence of the circumstances of the case as
required by Cichy. See Cichy, supra at 227. For these reasons, we
conclude the Commonwealth’s claim that the fingerprint evidence in this
case was sufficient to identify Q.C. as a perpetrator in the burglary is
meritless.
The Commonwealth also argues that the instant case is distinguishable
from Cichy because there is additional photographic evidence of Q.C’s
presence during the burglary. Commonwealth’s Brief at 10-11.
“Importantly, in all of the cases [Q.C.] cites, fingerprints were the only
evidence that the accused was the perpetrator. Here, by contrast,
defendant’s participation was corroborated by the photograph stills taken
from the security surveillance video.” Id. at 13.
The photographs alluded to by the Commonwealth were identified as
exhibits C-2(A) to (C) and were authenticated and described by
Commonwealth witness, Bland. See N.T., 6/18/14, at 22-25. However, as
pointed out by Q.C., the Commonwealth never moved for the admission of
the photographs. See Q.C.’s Brief at 12. Our review of the entire record
confirms this. Accordingly, the photographs themselves are not evidence in
this case and could not be considered by the trial court as fact-finder. See
Commonwealth v. Canales, 311 A.2d 572, 575 (Pa. 1973) (holding that
when items are not admitted into evidence, they do not qualify as exhibits
for consideration by a jury); Commonwealth v. Hemingway, 534 A.2d
- 11 -
J-A15025-15
1104, 1106 (Pa. Super. 1987) (noting that a failure to move a photo into
evidence waives any right to admission).5 Accordingly, only the testimony
elicited from Bland relative to what the photographs depict may be
considered to determine if they provide corroborating evidence of Q.C.’s
presence during, and participation in, the burglary. As can readily be
discerned, the relevant testimony from Bland is not corroborative evidence
because he acknowledged that he could not identify Q.C. as a perpetrator
based on the images. The relevant testimony is set forth in full as follows.
[ASSISTANT DISTRICT ATTORNEY]: Your
Honor, I’m going to show the witness for
identification purposes what I’m marking as C-2, A
through C.
BY [ASSISTANT DISTRICT ATTORNEY]:
Q. Mr. Bland, I show you what I have marked as
C-2. Do you recognize C-2?
A. Yes.
Q. Okay, what is C-2.
A. Inside the lot.
Q. Okay, what is depicted there?
A. It shows someone in the lot.
____________________________________________
5
Both the Commonwealth and Q.C. reference certain comments by the trial
court made during the parties’ closing argument relative to what the
photographs depict. See Commonwealth’s Brief at 11, 13-14; Q.C.’s Brief at
12-13. As the photographs are not themselves evidence, we deem these
musings by the trial court to be irrelevant, as they constitute neither findings
of fact nor evidence in this case.
- 12 -
J-A15025-15
Q. And is this one of the still shots that you
turned over to the police?
A. Yes.
Q. That was letter (A). What about letters (B)
and (C)?
A. Yeah.
Q. Those are from your system?
A. Yes.
Q. And does your system date and time stamp
video and photographs?
A. Yes.
Q. And to your knowledge is that accurate?
A. Yes.
…
THE COURT: Did you look at this video
yourself, where [sic] you able to run it, and look at
it?
THE WITNESS: Yeah.
THE COURT: Okay, was there any problem
with seeing the video?
THE WITNESS: It was like dark, it was a little
dark. I mean you –
…
THE COURT: … You looked at the video,
you were able to see it even though it was dark, or
no? Was it too dark to see anything on it?
- 13 -
J-A15025-15
THE WITNESS: You could see people moving
around but like –
THE COURT: You couldn’t identify
anybody.
THE WITNESS: Right, but you could see –
THE COURT: -- and you turned it over to
the police.
THE WITNESS: Yes.
THE COURT: But the stills you can identify
a person, you can see a face? …
THE WITNESS: No, not really.
THE COURT: … Do you think the still
photos are easier to see than the video that you
saw?
THE WITNESS: Me, personally, I think it
would be on the same order.
N.T., 6/18/14, at 22-25 (emphasis added).
From the above, it is clear that the Commonwealth never elicited any
testimony that the photographs depicted or purported to depict Q.C. In
response to the trial court’s question, Bland specifically stated that he could
not identify anyone from the video or the still shots. Therefore, we conclude
the Commonwealth’s assertion that the photographs in this case provide
corroboration of the fingerprint evidence in identifying Q.C. as a participant
in the burglary is disingenuous at best.
Our close review of the entire record leads us to agree with Q.C. that
the only evidence linking him to the subject burglary is the partial handprint
- 14 -
J-A15025-15
and fingerprint found on the exterior driver-side window of one of the
damaged vehicles. It is undisputed that the premises, upon which the
vehicle was situated, was open to the public during regular business hours.
Absent further evidence of the attendant circumstances tending to bolster an
inference that the prints could only have been made during the burglary, we
conclude Cichy and its progeny apply. We therefore conclude the evidence
in this case was insufficient to prove Q.C. committed the subject burglary
and conspiracy. Accordingly, we reverse the juvenile court’s June 18, 2014
adjudication of delinquency and its July 8, 2014 order of disposition.
Orders reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/7/2015
- 15 -