J-S25037-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: T.S.                          IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA




APPEAL OF: T.S.

                                                      No. 1850 WDA 2014


                Appeal from the Dispositional Order July 1, 2014
               in the Court of Common Pleas of Allegheny County
       Juvenile Division at No.: 11-1252, JID #87248-A Caselog 178274


BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                                   FILED MAY 06, 2015

        Appellant, T.S., a minor, appeals from the juvenile court’s dispositional

order1 following his adjudication of delinquency for committing delivery of a

controlled substance and criminal conspiracy.2        Appellant challenges the

sufficiency and weight of the evidence. We affirm.

        The juvenile court aptly summarized factual history of this case as

follows:
      . . . [On] January 3, 2014, City of Pittsburgh police officers
      Lieutenant Jason Lando, along with Sergeant Tom Huerbin
      worked an undercover drug detail. As part of that detail, Lt.
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  The court’s order is dated June 26, 2014, but was entered on the docket on
July 1, 2014. We have amended the caption accordingly.
2
    35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 903(a)(1), respectively.
J-S25037-15


       Lando began communicating with an unknown male via text
       messaging and arranged a drug buy at approximately noon that
       same day. As a result of this communication, Lt. Lando, and
       Sgt. Huerbin operating as close cover, along with a surveillance
       team proceeded to Capri Pizza, located at the corner of Penn
       Avenue and North Highland in the East Liberty section of the City
       of Pittsburgh. Once at the restaurant Lt. Lando was to purchase
       a bundle, or ten (10) stamp bags of heroin, for eighty (80)
       dollars. While acting undercover, Lt. Lando and Sgt. Huerbin
       positioned themselves inside Capri Pizza. Lt. Lando sat at a
       table near the front of the restaurant near the front glass
       window and Sgt. Huerbin was positioned a few tables behind Lt.
       Lando. As 12:45 p.m., Lt. Lando received a telephone call from
       the same unknown male, stating that he was parking the car and
       would be there soon. Lt. Lando gave the unknown male details
       of his physical description and where he was seated inside the
       restaurant. Approximately two (2) minutes later, Lt. Lando
       observed two (2) black males, one later identified as James
       Kendrick and the second, minor [Appellant3], approach the pizza
       shop together and then engage in a conversation. Lt. Lando
       next testified that [Appellant], who was wearing a red hooded
       sweatshirt with white lettering on the front that read “Fame U”,
       entered Capri Pizza after Kendrick motioned for him to do so.
       [Appellant] then walked directly to the area where Lt. Lando was
       seated, looked him up and down, made eye contact and then
       exited the restaurant to meet up with Kendrick, who had
       remained outside. Lt. Lando then followed [Appellant] outside.
       The trio stood together in front of the restaurant, and at that
       time [Appellant] said to Kendrick, “he is cool man.” Upon
       hearing this, Lt. Lando told Kendrick that he wanted to conduct
       the drug transaction in the bathroom inside Capri Pizza. The trio
       then proceeded to the back of the restaurant, where the
       bathroom is located.      Lt. Lando and Kendrick entered the
       bathroom, where Kendrick handed him a bundle of heroin and
       received eighty (80) dollars from Lt. Lando in return.

             [Appellant], who was observed by Sgt. Huerbin, stood at
       the pizza counter during the drug transaction and ordered some
       food while keeping an eye on the bathroom door.           After
____________________________________________


3
  Appellant was fourteen-years-old at the time of the incident.            (See
Appellant’s Brief, at 9).



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        delivering the heroin, Kendrick walked out of the bathroom and
        exited Capri Pizza. Lt. Lando went back to his table and left
        shortly thereafter.      Sgt. Huerbin remained inside until
        [Appellant] left the restaurant and then followed [him] for a
        short while outside. Officer Gary Spory, who was part of the
        surveillance team, was positioned outside to photograph any
        portions of the drug transaction and photographed [Appellant] as
        he was walking on North Highland after he left Capri Pizza.

(Trial Court Opinion, 12/08/14, at 2-4 (footnotes omitted)).

        The juvenile court held an adjudicatory hearing on June 5, 2014, and

adjudicated Appellant delinquent based on its determination that he

committed the above-mentioned offenses.          On July 1, 2014, the court

entered its dispositional order committing Appellant to The Summit

Academy. On July 3, 2014, Appellant filed post-dispositional motions, see

Pa.R.J.C.P. 620, which the court denied by order entered August 6, 2014.

Appellant filed a timely notice of appeal.

        On September 2, 2014, the court entered an order directing Appellant

to file a Rule 1925(b) statement within seven days, advising: “[a]ny issue

not properly included in the Statement timely filed and served shall be

deemed waived.” (Concise Statement Order, 9/02/14, at 1); see Pa.R.A.P.

1925(b). On September 10, 2014, the court issued an order superseding its

previous Rule 1925(b) order, directing Appellant to file a concise statement

within twenty-one days of the original order.4 The court again advised: “Any


____________________________________________


4
    Twenty-one days from the original order was September 23, 2014.

(Footnote Continued Next Page)


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issue not properly included in the Statement timely filed and served shall be

deemed waived.” (Concise Statement Order, 9/10/14, at 1). Appellant filed

a Rule 1925(b) statement on October 1, 2014, eight days past the deadline

set by the court, but within twenty-one days of entry of the September 10,

2014 order on the docket. The court filed an opinion on December 8, 2014,

in which it addressed the issues raised in Appellant’s Rule 1925(b)

statement. See Pa.R.A.P. 1925(a).

      Appellant raises two issues for our review:

      1. Whether the trial court erred in holding that the evidence
      presented at trial was sufficient to support the delinquency
      adjudications for delivery of a controlled substance, 35
      Pa.C.S.[]§ 780-113(a)(1)[sic], and criminal conspiracy 18
      Pa.C.S.A.[]§ 903?

      2. Whether the trial court erred in holding that the delinquency
      adjudications for delivery of a controlled substance, 35 Pa.C.S.
      §[]780-113(a)(1) [sic] and criminal conspiracy under 18 Pa.C.S.
      §[]903(a)(1) were not against the weight of the evidence?

(Appellant’s Brief, at 6).

      Before we may address Appellant’s issues, we must determine if he

properly preserved them, as required by Rule 1925(b).

      The Rule provides, in relevant part:

      (b) Direction to file statement of errors complained of on
      appeal; instructions to the appellant and the trial court.—
      If the judge entering the order giving rise to the notice of appeal
                       _______________________
(Footnote Continued)

      Although the order directed that the statement be filed within twenty-
one days of “this order,” it further noted that “[t]he effective date of this
order is Sept. 2, 2014.” (Concise Statement Order, 9/10/14, at 1).



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      (“judge”) desires clarification of the errors complained of on
      appeal, the judge may enter an order directing the appellant to
      file of record in the trial court and serve on the judge a concise
      statement of the errors complained of on appeal (“Statement”).

                                   *    *    *

            (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. . . . In
      extraordinary circumstances, the judge may allow for the filing
      of a Statement or amended or supplemental Statement nunc pro
      tunc.

             (3) Contents of order.—The judge’s order directing the
      filing and service of a Statement shall specify:

            (i) the number of days after the date of entry of the
            judge’s order within which the appellant must file
            and serve the Statement;

            (ii) that the Statement shall be filed of record;

            (iii) that the Statement shall be served on the judge
            pursuant to paragraph (b)(1);

            (iv) that any issue not properly included in the
            Statement timely filed and served pursuant to
            subdivision (b) shall be deemed waived.

            (4) Requirements; waiver.

                                  *    *     *
            (vii) Issues not included in the Statement and/or not
            raised in accordance with the provisions of this
            paragraph (b)(4) are waived.

Pa.R.A.P. 1925(b)(2), (3), (4)(vii).

      An en banc panel of this Court has held:


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            Our    Supreme      Court    intended    the    holding    in
     [Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] to operate
     as a bright-line rule, such that “failure to comply with the
     minimal requirements of Pa.R.A.P. 1925(b) will result in
     automatic waiver of the issues raised.” Commonwealth v.
     Schofield, . . . 888 A.2d 771, 774 ([Pa.] 2005). . . ; see also
     [Commonwealth v.] Castillo, 888 A.2d [775, 780 (Pa. 2005)].
     Given the automatic nature of this type of waiver, we are
     required to address the issue once it comes to our attention.
     Indeed, our Supreme Court does not countenance anything less
     than stringent application of waiver pursuant to Rule 1925(b):
     “[A] bright-line rule eliminates the potential for inconsistent
     results that existed prior to Lord, when . . . appellate courts had
     discretion to address or to waive issues raised in non-compliant
     Pa.R.A.P. 1925(b) statements.” Id. Succinctly put, it is no
     longer within this Court’s discretion to ignore the internal
     deficiencies of Rule 1925(b) statements.

Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d

222, 224 (Pa. Super. 2014) (en banc) (some citations, quotation marks and

emphasis omitted).

     Here, the record reflects that, on September 2, 2014, the juvenile

court issued an order directing Appellant to file a concise statement within

only seven days, in violation of Rule 1925(b)(2). (See Concise Statement

Order, 9/02/14, at 1); see also Pa.R.A.P. 1925(b)(2) (requiring trial courts

to allow a minimum of twenty-one days for filing). The court then corrected

this error by issuing a superseding order on September 10, 2014 in technical

compliance with Rule 1925(b), requiring Appellant to file a concise statement

within twenty-one days of its original order.   (See Order, 9/10/14, at 1).

The order provided: “Any issue not properly included in the Statement timely

filed and served shall be deemed waived.”       (Id.)   Appellant filed a Rule


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1925(b) statement on October 1, 2014, eight days after the deadline set by

the court.

       Based on the foregoing, we conclude that Appellant failed to comply

with the requirements of Rule 1925(b). Therefore, he has waived his issues

on appeal. See Pa.R.A.P. 1925(b)(3)(iv), (4)(vii); see also Greater Erie

Indus. Dev. Corp., supra at 224.

       Moreover,5 even if Appellant’s issues on appeal were not waived, they

would not merit relief.       “Our standard of review of dispositional orders in

juvenile proceedings is well settled: . . . We will not disturb a disposition

absent a manifest abuse of discretion.” In re R.D., 44 A.3d 657, 664 (Pa.

Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012) (citation omitted).

       As noted above, Appellant first challenges the sufficiency of the

evidence supporting his adjudication of delinquency for delivery of a

controlled substance and criminal conspiracy. (See Appellant’s Brief, at 14).

He argues “there was absolutely no evidence whatsoever that [he] actually

possessed heroin, let alone delivered heroin to Lt. Lando[,]” and that he was

merely present at the pizza shop where he went to buy his lunch. (Id.; see
____________________________________________


5
  We recognize that this Court generally does not address the issues an
appellant raises on appeal where he or she files an untimely Rule 1925(b)
statement. See Greater Erie Indus. Dev. Corp., supra at 227. However,
given the unique circumstances of this case, where the court issued two Rule
1925(b) orders, the first of which failed to comply with Rule 1925(b)(2), and
Appellant filed his concise statement within twenty-one days of entry of the
second order on the docket, we will address Appellant’s issues in the interest
of judicial economy. See Pa.R.A.P. 105.



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id. at 16). He also argues that there “is insufficient evidence to establish

any agreement between Kendrick and himself.”          (Id. at 17).   This issue

would not merit relief.

      A challenge to the sufficiency of the evidence is a question of law
      subject to plenary review. We must determine whether the
      evidence admitted at trial and all reasonable inferences drawn
      therefrom, when viewed in the light most favorable to the
      Commonwealth as the verdict winner, is sufficient to support all
      elements of the offenses. A reviewing court may not weigh the
      evidence or substitute its judgment for that of the trial court.

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal

denied, —A.3d— (Pa. 2015) (citation and quotation marks omitted).

      The Controlled Substance, Drug, Device and Cosmetic Act prohibits

“the . . . delivery . . . [of] a controlled substance by a person not registered

under this act[.] . . . ” 35 P.S. § 780-113(a)(30).

      In the instant case, the court found that Appellant was liable as an

accomplice to the delivery of heroin to Lt. Lando. (See Trial Ct. Op. at 7).

“It is well-established . . . that a defendant, who was not a principal actor in

committing the crime, may nevertheless be liable for the crime if he was an

accomplice of a principal actor.”    Commonwealth v. Murphy, 844 A.2d

1228, 1234 (Pa. 2004) (citations omitted).     “A person is an accomplice of

another person in the commission of an offense if . . . with the intent of

promoting or facilitating the commission of the offense, he . . . aids or

agrees or attempts to aid such other person in planning or committing it[.] .

. .” 18 Pa.C.S.A. § 306(c)(1)(ii). “[A] defendant cannot be an accomplice

simply based on evidence that he knew about the crime or was present at


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the crime scene.” Murphy, supra at 1234 (citation omitted). “There must

be some additional evidence that the defendant intended to aid in the

commission of the underlying crime, and then did or attempted to do so.”

Id. (citation omitted).

      Section 903 of the Crimes Code sets forth the crime of criminal

conspiracy, in pertinent part, as follows:

      (a) Definition of conspiracy.—A person is guilty of conspiracy
      with another person or persons to commit a crime 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[.]

18 Pa.C.S.A. § 903(a)(1).

      “To sustain a conviction for criminal conspiracy, the Commonwealth

must establish the defendant: 1) entered into an agreement to commit or

aid in an unlawful act with another person or persons; 2) with a shared

criminal intent; and 3) an overt act was done in furtherance of the

conspiracy.” Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa. Super.

2013) (en banc), appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).

“The conduct of the parties and the circumstances surrounding such conduct

may create a web of evidence linking the accused to the alleged conspiracy

beyond a reasonable doubt.” Id. at 26 (citation omitted).

      Here, the juvenile court explained why Appellant’s sufficiency of the

evidence claim lacks merit:


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           The Commonwealth conceded that [Appellant] did not
     possess or physically deliver the heroin to Lt. Lando himself.
     However, the evidence clearly established that [Appellant] acted
     as an accomplice to the crime, and was not merely present at
     the crime scene. As Lt. Lando testified, within minutes after
     receiving a call from the unknown male confirming the drug deal,
     [Appellant] arrived with Kendrick. [(See N.T. Hearing, 6/05/14,
     at 13-14)]. The subsequent actions by [Appellant] of entering
     the restaurant and “looking over”, essentially screening Lt.
     Lando, demonstrated his intent to aid in the delivery. ([See id.
     at 15-18)]. Shortly thereafter, [Appellant] vouched that Lt.
     Lando was not a police officer by indicating to Kendrick “he is
     cool, man” giving the green light for the drug transaction to take
     place. [(Id. at 17; see id. at 18)]. [Appellant] was present
     when Lt. Lando and Kendrick discussed where the drug deal
     would take place and followed then inside the restaurant,
     providing surveillance over the bathroom to ensure that the
     delivery would be effectuated without interference. ([See id. at
     17-19, 35)]. As the linchpin that connected Lt. Lando to the
     principle actor, [Appellant] was an accomplice under the law and
     thus delinquent of the crime of delivery of a controlled
     substance.

                                *     *      *

     . . . [With respect to criminal conspiracy,] [t]he circumstantial
     evidence in this case, viewed in the light most favorable to the
     Commonwealth, demonstrated not only that [Appellant]
     intended for the drugs to be sold, but also made an agreement
     with Kendrick that [Appellant] would assume an active role in
     the delivery. As stated above, [Appellant] and Kendrick arrived
     together outside Capri Pizza and engaged in a brief conversation.
     [(See id. at 14-15)].       Immediately thereafter, Lt. Lando
     observed Kendrick nod at [Appellant] to enter the restaurant.
     ([See id. at 15)]. Later, Lt. Lando stood outside with both
     actors and discussed were the drug deal was to take place.
     ([See id. at 17)]. [Appellant] then followed them inside and
     stationed himself outside the bathroom while the delivery
     occurred. ([See id. at 18-19)]. [Appellant] sanctioned the
     commission of the crime when he committed the overt act of
     assuring Kendrick that Lt. Lando was not a police officer, by
     stating “he is cool, man”. [(Id. at 17)]. As such, the [c]ourt
     found sufficient evidence to support the existence of a criminal
     conspiracy between [Appellant] and Kendrick. . . .

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(Trial Ct. Op., at 7-9) (emphases omitted).

       After review of the record, viewing the evidence in the light most

favorable to the Commonwealth, (see Colon, supra at 1041), we conclude

that it fully supports the court’s determination that the evidence was

sufficient to sustain Appellant’s adjudication.    Accordingly, Appellant’s first

issue would not merit relief.

       In his second issue, Appellant challenges the weight of the evidence to

support his adjudication.6 Specifically, Appellant asserts that the court gave

undue consideration to Lt. Lando’s testimony, which was not credible, was

self-serving, and inconsistent with police reports. (See Appellant’s Brief, at

18-22).     He maintains that the court dismissed inconsistencies in the

testimony where Lt. Lando testified that Appellant entered the restaurant by

himself at the direction of Kendrick, while Sgt. Huerbin testified that the two

men entered together. (See id. at 20). This issue would not merit relief.

              The law pertaining to weight of the evidence claims is well-
       settled. The weight of the evidence is a matter exclusively for
       the finder of fact, who is free to believe all, part, or none of the
       evidence and to determine the credibility of the witnesses. A
       new trial is not warranted because of a mere conflict in the
       testimony and must have a stronger foundation than a
       reassessment of the credibility of witnesses. Rather, the role of
       the trial judge is to determine that notwithstanding all the facts,

____________________________________________


6
  Appellant preserved this claim by including it in his post-dispositional
motion. (See Post-Dispositional Motion, 7/03/14, at unnumbered page 2);
see also Pa.R.J.C.P. 620; In re J.B., supra at 99.



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      certain facts are so clearly of greater weight that to ignore them
      or to give them equal with all the facts is to deny justice.

             On appeal, our purview is extremely limited and is
      confined to whether the trial court abused its discretion in
      finding that the jury verdict did not shock its conscience. Thus,
      appellate review of a weight claim consists of a review of the
      trial court’s exercise of discretion, not a review of the underlying
      question of whether the verdict is against the weight of the
      evidence. An appellate court may not reverse a verdict unless it
      is so contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. Gonzalez, 2015 WL 252446, at *7-8 (Pa. Super. Jan.

21, 2015) (citations and quotation marks omitted).

      Here, after review of the record, and mindful of our “extremely

limited” purview, we cannot conclude that the court’s ruling on Appellant’s

weight of the evidence claim constituted abuse of discretion. Id. at *8. The

court, as finder of fact, while passing upon the credibility of witnesses’

testimony and the weight of the evidence produced, was free to believe all,

part, or none of the evidence, and to resolve any inconsistencies in the

testimony. See id. at *7-8. Therefore, Appellant’s weight claim would not

merit relief.   Accordingly, we affirm the dispositional order entered by the

juvenile court.

      Dispositional order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2015




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