J-A01018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                       IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA


                      v.

C.W., JUVENILE

                            Appellant                  No. 3470 EDA 2014


             Appeal from the Dispositional Order November 5, 2014
                In the Court of Common Pleas of Lehigh County
              Juvenile Division at No(s): CP-39-JV-0000302-2014
                               SID NO. 41678445

BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J.*               FILED JUNE 27, 2016



CONCURRING AND DISSENTING MEMORANDUM BY FITZGERALD, J.:

        I concur with the majority decision to affirm the denial of Appellant’s

suppression motion.        I also agree the evidence was sufficient to establish

Appellant was an accomplice to the harassment of N.G.               However, I

respectfully dissent from the majority’s decision to affirm the adjudication of

delinquency for ethnic intimidation. In my view, the juvenile court’s findings

do not support the conclusion that Appellant “with the intent of promoting or

facilitating the offense” solicited, aided in, agreed to, or attempted to aid in

planning or commission of that offense. See 18 Pa.C.S. § 306(b)(3), (c).

        A review of the evidence presented at the adjudication hearing

established the following.      Approximately two days before the incident in

*
    Former Justice specially assigned to the Superior Court.
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question, Appellant complimented N.G. on a deck of cards N.G. was

shuffling.   N.T. Adjudication Hr’g 10/15/14, at 132.      N.G. described that

interaction as “fairly positive.” Id. N.G. had no prior contact with F.R. or

J.W.

        On the day in question, N.G was playing cards with his friend, G.S., in

study hall, and G.Z. joined them at their table.1 Before the events captured

on the video recording, Appellant, J.W., and F.R. entered the study hall and

were “hanging around [N.G.’s] table” and “messing around.”           Id. at 133.

F.R. asked to see G.Z.’s cellphone. Id. F.R. ran out of the room with it, but

returned and gave the phone back to G.Z. N.G. testified that he was not a

target of this teasing. Id. at 134. Later, Appellant was “off to the side” of

the group, asked to play in the card game, and, according to N.G., “wasn’t

doing anything harmful.” Id. at 142.

        The video recording, Commonwealth’s Exhibit 1, showed the following.

F.R’s    smartphone    camera    turns    on   and   focuses   on   J.W.    See

Commonwealth’s Ex. 1, at 00:01.          Appellant is seen briefly either at the

same table as N.G. N.T. at 97. F.R., who is holding the camera, narrates

that the recording is a “smack cam,” and F.R. and J.W. discuss whether it is

part three or four.     Commonwealth’s Ex. 1 at 00:05.         F.R. focuses the

camera on N.G. and states “mop that shit.” Id. at 00:21.       J.W. strikes N.G.

1
  As it is relevant to this appeal, N.G. and G.Z. are Caucasian, and G.S. is
Hispanic. F.R. is Hispanic and J.W. and Appellant are African-American. The
study hall was held in a cafeteria.



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F.R. stands in place and narrates as J.W. runs away, laughing, down the

hallway behind F.R. F.R. softly states “I’m about to jack his phone,” then

hands the camera to Appellant. Id. at 00:44. F.R. repeatedly uses the term

“nigger” when referring to N.G. and G.Z.

      Appellant continues recording as F.R. and J.W. stand back from N.G.’s

table and F.R. approaches N.G. Id. at 00:44-00:58. F.R. plays with N.G.’s

hair, and states he could be his daughter. Appellant can be heard laughing

on camera. Id. at 01:00-01:10. F.R. and J.W. then stand around N.G. and

G.Z. and ask for their cellphones.   Id. at 01:17. Appellant begins moaning

or sighing. Id. at 01:44. He briefly zooms in on N.G. as J.W. is talking to

N.G. Id. at 02:00. Appellant apparently places the camera on or near the

table. Id. at 02:11. F.R. takes the camera and aims it at G.Z. F.R. states,

“pink ass nigger” as he pinches his fingers around the image of G.Z.’s head

on the camera. Id. at 02:24; see also Aff. of Probable Cause, 5/1/14, at 2.

The recording ends.

      Additionally, the juvenile court received the following testimony.   A

school guidance counselor spoke to F.R. after the incident and testified that

F.R. denied choosing the victims of the “smack cam.” F.R. told the guidance

counselor that “the kid who filmed the video”—presumably referring to

Appellant—selected them, “probably because they were white [and] they are

pussies.” Id. at 117, 119.




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     Detective Bill Williams described his investigation, identified the parties

on the recording, narrated portions of the events depicted, and opined that

the term “pink” was a pejorative term for a Caucasian.           The detective

authenticated Appellant’s and J.W.’s handwritten apologies,2 which were

entered into the record.

     Appellant’s statement, in it’s original form, read:

        I know you guys are probably mad at the fact that my
        friends were making front of you because your race and
        how different ya’ll look from every body else, and when
        one of my friends slaped cam you, and tryed to take you
        guys phone. I’m sincely sorry for recording and provicing
        the situation because if someone do the same thing to me
        I would be mad especially if someone was recording. But
        when I came over and ask to play cards I didn’t mean
        them to come over even though I should have told them to
        stop I recorded so I’m sorry and I hope ya’ll feel generous
        to accepted my apolgey because when they left and I
        stoped recording I got to know yall really well.

Commonwealth’s Ex. 2.

     On redirect examination of Detective Williams by the Commonwealth,

the following exchange occurred:

        [Commonwealth].        [E]verybody has asked you about
        “pink” and they asked you specifically and also about in
        your affidavit of probable cause because you addressed
        the issue of “pink” in your affidavit. Is that correct?

        [Detective Williams]. Yes.

2
  J.W. stated, in part, “we saw these boys playing cards we started talking to
them then we started making fun of them then a boy came in ask about a
smack cam then we chose these boys because they were much smaller than
us and looked different from us then we started recording . . .”
Commonwealth’s Ex. 3.



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         Q. And, in fact, this is admitted into evidence at this point,
         so you write that [Appellant], J.[W.] and F.[R.] started
         making fun of the boy because of their race, statute and
         appearance such as the glasses they were wearing, they
         used racial terms like “pink” and Harry Potter looking
         mother fucker, all parties understood “pink” to be a slang
         term for a white person.        That’s in your affidavit of
         probable cause. Right?

         A. Yes.

Id. at 99-100.

      The detective later clarified to whom he spoke regarding the term

“pink”. Id. at 106.

         [T]he reference -- when I spoke with [Appellant], he
         explained that there was a pretext to this event that was
         not captured on the video and it was that pretext of this
         event where the boys were selected for what was going to
         happen to them and then among that selection criteria was
         the comments of the Harry Potter looking person, the
         reference to “pink” and that was explained as a racial term
         and set in the context of as the subsequent video
         supported that everybody knew what was about to happen
         and why. And that is why I framed it in that context.

Id.   The detective, in his affidavit of probable cause, previously indicated

that Appellant and J.W. “said they selected the victims because they looked

different, appeared weak, and were white.”3 Aff. of Probable Cause at 2.



3
  The detective also authored a supplemental offense report that indicated
Appellant, J.W., and F.R. “started cutting on the boys because of their race,
stature and appearance such as the glasses they were wearing” and used
racial terms like “pink” and “Harry Potter looking motherfucker.”
Supplemental Report, 5/1/14, at 3. That incident allegedly occurred before
the F.R. took G.Z.’s phone and before the video recording.



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      The Commonwealth, in closing arguments, asserted all three juveniles,

F.R., J.W., and Appellant, attributed their involvement in the incident to

race, noting in relevant part that C.W. stated that “his friends were making

fun of you because of your race . . . .” N.T. at 175. In discussing F.R. and

J.W., the Commonwealth argued F.R. uttered the slur “pink,” emphasized

they were “acting out of a desire, a malicious intent towards the race of the

two white kids at the table[,]” and noted F.R. and J.W. did not harass G.S.,

N.G.’s Hispanic friend.   Id.   at 176.   Appellant’s case, the Commonwealth

observed, was “more complicated.” Id.       It argued that Appellant was aware

that “something [wa]s going on before this and . . . these guys are being

targeted for their race.” Id. at 177. The Commonwealth argued:

         So, once you know that these kids are getting picked on
         for being white and you decide to hang around and then
         you decide to videotape it so we can put it on Facebook so
         everybody can get a good laugh about it later, you’re an
         accomplice.

Id.

      The juvenile court adjudicated Appellant delinquent for harassment

and ethnic intimidation.    With respect to ethnic intimidation, the court

determined that “[i]t is clear that [Appellant] acted as an accomplice in the

harassment and that he was fully aware that N.G. was selected, at least in

part, due to his race.” See Juvenile Ct. Op., 6/5/15, at 21. Although the

majority affirms the adjudication for ethnic intimidation on that basis, I

respectfully disagree.



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      Ethnic intimidation requires proof beyond a reasonable doubt that an

individual committed a predicate offense—here, harassment—and did so

“with malicious intention.” See 18 Pa.C.S. § 2710(a); Commonwealth v.

Sinnott, 30 A.3d 1105, 1111 (Pa. 2011). “‘Malicious intention’ means the

intention to commit any act, the commission of which is a necessary element

of [the predicate offense] motivated by hatred toward the race, color,

religion or national origin of another individual of group of individuals.” 18

Pa.C.S. § 2710(c) (emphasis added). The required “racial animus” need not

be the sole motivation for the commission of the act, and once established,

its existence “cannot be negated by establishing that a second intent

coexisted in the mind of the actor.” Sinnott, 30 A.3d at 1110.

      The Pennsylvania Crimes Code defines accomplice liability as follows:

         (b) Conduct of another.—A person is legally accountable
         for the conduct of another person when:

            (1) acting with the kind of culpability that is sufficient
            for the commission of the offense, he causes an
            innocent or irresponsible person to engage in such
            conduct;

            (2) he is made accountable for the conduct of such
            other person by this title or by the law defining the
            offense; or

            (3) he is an accomplice of such other person in the
            commission of the offense.

         (c) Accomplice defined.—A person is an accomplice of
         another person in the commission of an offense if:

            (1) with the intent of promoting or facilitating the
            commission of the offense, he:


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               (i) solicits such other person to commit it; or

               (ii) aids or agrees or attempts to aid such other
               person in planning or committing it; or

               (2) his conduct is expressly declared by law to
               establish his complicity.

18 Pa.C.S. § 306(b)-(c).

      The Pennsylvania Supreme Court has noted that Section 306 is

modeled after the Model Penal Code, which has been criticized for its lack of

clarity. See Commonwealth v. Roebuck, 32 A.3d 613, 621 (Pa. 2011).

The Pennsylvania Supreme Court, however, has provided guidance in two

decisions regarding accomplice liability: Roebuck and Commonwealth v.

Knox, 105 A.3d 1194, 1196-97 (Pa. 2014).

      In Roebuck, the defendant participated with others in luring the

victim to an apartment complex, where he was ambushed, shot, and

mortally wounded. Roebuck, 32 A.3d at 614. The defendant did not shoot

the victim.   Id.   He was convicted of murder of the third-degree as an

accomplice. Id. On appeal, the defendant asserted that his conviction was

a logical impossibility because:

         accomplice liability attaches only where the defendant
         intends to facilitate or promote an underlying offense;
         third-degree murder is an unintentional killing committed
         with malice; therefore, to adjudge a criminal defendant
         guilty of third-degree murder as an accomplice would be to
         accept that the accused intended to aid an unintentional
         act . . . .

Id.


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        This Court affirmed, holding that the “complicity theory applies in

third-degree murder scenarios—even if homicide was not the intended

underlying crime—where the intentional acts demonstrate a disregard for

human life amounting to malice.” Id. at 615. The Roebuck Court granted

allowance of appeal.

        The Roebuck Court rejected the defendant’s logical impossibility

argument, noting:

           Section 306(d) of the Crimes Code directs the focus, for
           result-based elements, to the level of culpability required
           of a principal.[4] In the present factual scenario, the
           purport is to avoid elevating a recklessness-oriented
           culpability requirement to a purposeful one relative to an
           accomplice. The policy basis for such treatment is readily
           discernable,[ ] and a homicide committed with the degree
           of recklessness predicate to murder provides a
           paradigmatic example.

Id. at 621.

        Thus, the Roebuck Court concluded that with respect to “results”

accomplice liability could be sustained based upon “recklessness” as to the

result. Id. However, the Court further suggested that an individual must be


4
    Section 306(d) states:

           Culpability of accomplice.—When causing a particular
           result is an element of an offense, an accomplice in the
           conduct causing such result is an accomplice in the
           commission of that offense, if he acts with the kind of
           culpability, if any, with respect to that result that is
           sufficient for the commission of the offense.

18 Pa.C.S. § 306(d).



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an “accomplice to the conduct,” i.e., “aids another in planning or committing

the conduct with the purpose of promoting or facilitating it.” See id. at 620

(discussing the Model Penal Code).           The Court observed that “the

interconnection between accomplice mens rea and the mental state required

of a principal actor represents an important restraint on accountability. In

terms of such limiting principles, it is also necessary to determine whether

the principal has taken actions beyond those that the accomplice intended.”

Id. at 619 n.11.

      In Knox, the Pennsylvania Supreme Court again expounded on the

scope of accomplice liability. In that case, the defendant was unarmed when

he and his identical twin brother approached a vehicle. Commonwealth v.

Knox, 50 A.3d 749, 752 (Pa. Super. 2012). His brother ordered the driver

to “get out” and lifted his shirt to reveal a firearm. Id. When the driver did

not comply, the defendant’s brother drew the firearm, aimed it at the

driver’s head, and eventually fired the weapon as the driver attempted to

flee in his vehicle.   Id.   The driver was mortally wounded.       Id.   Two

witnesses identified the defendant and his brother as the perpetrators and

specifically identified defendant’s brother as the shooter. Id.

      The defendant was convicted of second-degree murder and carrying a

firearm without a license. Of relevance to this appeal, this Court affirmed




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the conviction for carrying a firearm without a license based on co-

conspirator and accomplice liability.5 Id. at 757-58.

      The Pennsylvania Supreme Court, in Knox, granted allowance of

appeal to consider the sufficiency of the evidence underlying the defendant’s

conviction for carrying a firearm without a license, when the defendant did

not possess the firearm. Commonwealth v. Knox, 68 A.3d 323 (Pa. 2013)

(order).    Although the Knox Court affirmed the conviction based on co-

conspiracy liability, it addressed accomplice liability as follows.

               Per the express terms of the Crimes Code,[ ] however,
           accomplice liability has been made offense-specific.
           Accordingly, the general rule is that a person is an
           accomplice of another in the commission of “an offense” if,
           acting with the intent to promote or facilitate the
           commission of “the offense,” he solicits the other person to
           commit it or aids, agrees, or attempts to aid the other
           person in planning or committing it. 18 Pa.C.S. § 306(c).
           The broader approaches—including the common-design
           theory and the related precept that an accomplice was
           liable for all of natural and probable consequences of the
           principal’s actions in the commission of a target offense—
           were supplanted by the General Assembly with the
           adoption of the Crimes Code and its incorporation of core
           restraints on criminal liability taken from the Model Penal
           Code. See generally Commonwealth v. Roebuck, 612
           Pa. 642, 651-56, 32 A.3d 613, 618-22 (2011) (discussing
           the interrelationship between the culpability provisions of
           the Crimes Code and the Model Penal Code in terms of the
           treatment of accomplice liability).



5
 In Knox, this Court also affirmed the conviction for second-degree murder,
but vacated the then-mandatory life sentence for second-degree murder
based on Miller v. Alabama, 132 S. Ct. 2455 (2012). Knox, 50 A.3d at
752.



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            In particular, the salient terms of Section 306 of the
         Crimes Code (“Liability for conduct of another; complicity”)
         are derived from Section 2.06 of the Model Penal Code,
         which expressly rejected the expansive common-design
         and       natural-and-probable-consequences         doctrines,
         refocusing liability for complicity squarely upon intent and
         conduct, not merely results. See AMERICAN LAW
         INSTITUTE, MODEL PENAL CODE AND COMMENTARIES §
         2.06 cmt. 6(b), at 312 (1985) (“[T]he liability of an
         accomplice ought not to be extended beyond the purposes
         that he shares. Probabilities have an important evidential
         bearing on these issues; to make them independently
         sufficient is to predicate the liability on negligence when,
         for good reason, more is normally required before liability
         is found.”).[ ] After the passage of the Crimes Code,
         status as an accomplice relative to some crimes within a
         larger criminal undertaking or episode no longer per se
         renders a defendant liable as an accomplice for all other
         crimes committed. See Commonwealth v. Flanagan,
         578 Pa. 587, 607–08 & n. 11, 854 A.2d 489, 501 & n. 11
         (2004). Rather, closer, offense-specific analysis of intent
         and conduct is required.[ ]

Knox, 105 A.3d at 1196-97. Knox thus emphasized accomplice liability as

requiring   a   “focused   examination,”   which   in   that   case   required   a

determination regarding whether the defendant, “acting with the intent to

promote or facilitate his brother’s unlicensed carrying of a concealed firearm,

solicited his brother to commit such offense or aided, agreed, or attempted

to aid his brother in doing.” Id. at 1197 (citation omitted).

      Lastly, with respect to culpability, the Crimes Code provides:

         (1) A person acts intentionally with respect to a material
         element of an offense when:

            (i) if the element involves the nature of his conduct or a
            result thereof, it is his conscious object to engage
            in conduct of that nature or to cause such a result;
            and


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               (ii) if the element involves the attendant circumstances,
               he      is   aware    of   the    existence     of  such
               circumstances or he believes or hopes that they
               exist.

          (2) A person acts knowingly with respect to a material
          element of an offense when:

               (i) if the element involves the nature of his conduct or
               the attendant circumstances, he is aware that his
               conduct is of that nature or that such circumstances
               exist; and

               (ii) if the element involves a result of his conduct, he is
               aware that it is practically certain that his conduct will
               cause such a result.

18 Pa.C.S. § 302(b)(1)-(2) (emphasis added).

     The parsing of an offense into elements (“conduct,” “attendant

circumstances,” and “result”) and applying the concepts of culpability

(“purposeful,” “knowing,” “reckless,” and “negligent”) to each element is

sometimes a difficult task. See Roebuck, 32 A.3d at 620. Instantly, as to

harassment, the conduct is the “strik[ing]” or “engag[ing] in a course of

conduct   or     repeatedly   commit[ting]      acts   which   serve   no   legitimate

purpose[.]” See 18 Pa.C.S. § 2709(a)(1), (3). “Culpability” for harassment

is the “intent to harass, annoy or alarm another.”               Id.   As to ethnic

intimidation, the conduct is the commission of a predicate offense, i.e.,

harassment with “malicious intention.” 18 Pa.C.S. § 2710(a).                      The

“culpability” for ethnic intimidation refers to two mental states: (1) “the

intention to commit any act,” which is an element of the predicate offense,



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and (2) the act be “motivated by hatred” toward race.           Id. § 2710(c)

(emphasis added).

     Instantly,   I agree that the record, when read in a light most

favorable to the Commonwealth, established that Appellant acted with an

intent to promote or facilitate the harassment of N.G. After F.R. recorded

J.W. striking N.G, Appellant moved from his seat at N.G.’s table and took

F.R.’s cellphone to record the incident. F.R. stated he was going to “jack”

N.G. or G.Z.’s cellphones.   Appellant continued to record as J.W. and F.R.

lingered around the table and then confronted N.G. and G.Z. anew.

Appellant giggled as F.R. teased N.G. about his hair and F.R. and J.W. asked

N.G. and G.Z. for their cell phones. Read in a light most favorable to the

Commonwealth,     this evidence   establishes an intent    to   promote   the

harassment.

     However, because an accomplice must have a “conscious object” to

promoting or facilitating the principal offense, I do not agree a finding

Appellant was “fully aware” of his cohorts’ alleged malicious intent is

sufficient to sustain the conviction.   Such a finding expands accomplice

liability beyond the “conscious object” standard and would apply a broader

“knowing” standard with respect to the nature of the conduct of the principal

offense, or transform the malicious intent element from a specific state of

mind to an “attendant circumstance.” See 18 Pa.C.S. § 302(b)(1)-(2).




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      I   acknowledge   that   Detective     Williams   and   F.R.’s   statements

suggested that Appellant was involved in the selection of the victims based

on race. However, the juvenile court did not find that Appellant planned or

agreed to aid his cohorts in their racial animus, nor is there any indication

the court credited or weighed those statements in reaching its findings.6

      Thus, I respectfully dissent from the decision to affirm the adjudication

of delinquency for ethnic intimidation.




6
  Although there was evidence that Appellant stopped recording before F.R.
uttered the slur “pink” and some indication that Appellant sat down at the
table after the incident and stayed with N.G., the juvenile court did not
discuss or render a finding on that evidence. See Commonwealth’s Ex. 2
(indicating C.W. apologized, in part, because “when they [F.R. and C.W.] left
and I stoped recording I got to know yall really well.”) Therefore, such
evidence does not affect this review of the sufficiency of the evidence. See
In re C.R., 113 A.3d 328, 333-34 (Pa. Super. 2015).



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