                            [J-88-2017] [MO: Todd, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                               WESTERN DISTRICT


 IN THE INTEREST OF: J.B.                     :   No. 31 WAP 2017
                                              :
                                              :   Appeal from the Order of the Superior
 APPEAL OF: J.B.                              :   Court entered September 1, 2016 at
                                              :   No. 980 WDA 2015, affirming the
                                              :   Order of the Court of Common Pleas
                                              :   of Lawrence County entered May 18,
                                              :   2012 at No. 113 of 2011, JUV.
                                              :
                                              :   ARGUED: November 29, 2017


                               CONCURRING OPINION


JUSTICE MUNDY                                     DECIDED: JULY 18, 2018
      I agree with the Majority that the evidence introduced at Appellant’s adjudicatory

hearing was insufficient, as a matter of law, to establish his delinquency beyond a

reasonable doubt. As the Majority comprehensively concludes, the body of evidence

when viewed as a whole was equally consistent with two plausible possibilities. Majority

Opinion at 29 (citing Commonwealth v. Woong Knee New, 47 A.2d 450, 468 (Pa. 1946)

(“When two equally reasonable and mutually inconsistent inferences can be drawn from

the same set of circumstances, a jury must not be permitted to guess which inference it

will adopt, especially when one of the two guesses may result in depriving a defendant of

his life or his liberty.”)). Therefore, I agree the Commonwealth failed to meet its burden

of establishing Appellant’s guilt beyond a reasonable doubt.

      I write separately to emphasize that today’s decision does not alter the standard

for circumstantial evidence. “It is hornbook law that the Commonwealth may prove its

case using wholly circumstantial evidence, and that circumstantial evidence can itself be

sufficient to prove any or every element of the crime.” Commonwealth v. Burno, 154 A.3d
764, 792 (Pa. 2017) (citing Commonwealth v. Perez, 93 A.3d 829, 841 (Pa. 2014)). In

Commonwealth v. Cimaszewski, 288 A.2d 805 (Pa. 1972), this Court noted that when

reviewing circumstantial evidence “[t]he line between the requisite degree of persuasion

and impermissible speculation is, admittedly, sometimes difficult to draw.” Id. at 806.

“There is no general rule to determine the quantity of circumstantial evidence necessary

to overcome the presumption of innocence[.]” Commonwealth v. Karmendi, 195 A. 62,

67 (Pa. 1937).       “In determining the sufficiency of the evidence, be it direct or

circumstantial, the test is whether, accepting as true all of the evidence and all reasonable

inferences arising therefrom, upon which, if believed, the jury could have based its verdict,

it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of

the crime or crimes of which he has been convicted.” Commonwealth v. Whitaker, 269

A.2d 886, 887 (Pa. 1970) (citing Commonwealth v. Myers, 266 A.2d 756 (Pa. 1970), and

Commonwealth v. Commander, 260 A.2d 773 (Pa.1970)).

       The jury or the trial court sitting without a jury are the ultimate fact-finders. The

instant matter is the atypical situation where upon appellate review, the evidence although

found sufficient by the fact-finder, when viewed in its entirety is deemed insufficient as a

matter of law. Commonwealth v. Kennedy, 789 A.2d 731, 732 (Pa. Super. 2001) (quoting

Commonwealth v. Seibert, 622 A.2d 361, 363 (Pa. Super. 1993) (“The facts and

circumstances established by the Commonwealth need not be absolutely incompatible

with the defendant's innocence, but the question of any doubt is for the fact finder unless

the evidence is so weak and inconclusive that, as a matter of law, no probability of fact

can be drawn from the combined circumstances.”)). Recognizing the extraordinary nature

of this case, I join the Majority.



       Justice Baer joins this concurring opinion.




                                [J-88-2017] [MO: Todd, J.] - 2
