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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

MEMORANDUM BY OTT, J.:                                  FILED JUNE 27, 2016

        C.W., a minor,1 appeals from the dispositional order entered November

5, 2014, by the Lehigh County Court of Common Pleas, Juvenile Division.

The juvenile court adjudicated C.W. delinquent on charges of harassment

and ethnic intimidation,2 and entered a dispositional order placing C.W. on

official probation. On appeal, C.W. argues the juvenile court erred in finding

that he knowingly, intelligently, and voluntarily waived his Miranda3 rights,

____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    C.W.’s date of birth is August 22, 1999.
2
    18 Pa.C.S. §§ 2709(a)(1) and 2710, respectively.
3
    Miranda v. Arizona, 384 U.S. 436 (1966).
J-A01018-16


and there was insufficient evidence to support his adjudications for

harassment and ethnic intimidation. For the reasons that follow, we affirm.

     The trial court set forth the facts as follows:

           On April 24, 2014, at approximately 1 p.m., N.G., a 12 th
     grader at William Allen High School, located in Allentown, Lehigh
     County, Pennsylvania, was seated at a lunchroom table in the
     12th grade cafeteria during a Study Hall. N.G. was seated with
     two friends, G.S. and G.Z. By way of background, N.G. and G.Z.
     are Caucasian and G.S. is Hispanic. The three boys were playing
     a card game. A short time later, [C.W.] and his two friends, F.R.
     and J.W., entered the room and started to congregate near
     where N.G. and his friends were sitting. The entire interaction
     was captured on video, which the Court was able to review at
     the time of the Adjudicatory Hearing.

           The video begins with F.R. operating the camera and J.W.
     describing the video as “Smack Cam Part 3.” F.R. trains the
     camera on an Allen High School security guard, but then focuses
     the camera on N.G. and his table. Thereafter, F.R. directs J.W.
     to “mop his shit” and J.W. smacks N.G. on the back of the head,
     causing N.G. to turn around and look in the direction from where
     the smack came. At the time of the Hearing, N.G. testified that
     he did not feel pain and that he wanted to avoid a confrontation.
     Therefore, N.G. turned back around and continued to try to
     concentrate on the cards he was shuffling.

           After smacking N.G., F.R. turned the camera on himself
     and declared that they “mopped that shit.” J.W. is next seen in
     the corner of the cafeteria and F.R. handed the video camera to
     [C.W.] to continue to film the exchange between J.W., F.R. and
     N.G.

            F.R. again approaches N.G. from behind and began to run
     his fingers through N.G.’s hair and to speak with N.G. N.G.
     recalled that F.R. stated that N.G.’s hair was pretty smooth and
     that he could be F.R.’s daughter.        [C.W.] is clearly heard
     laughing in the background of the video as he films F.R. fondling
     N.G.’s hair. F.R. and J.W. then asked G.Z. to use his cellular
     telephone to call F.R.’s mother. G.Z. says no, stating that there
     was not a lot of battery power left on the telephone. J.W. then
     told him that he is making up excuses and that there is power on

                                     -2-
J-A01018-16


     the telephone. While filming the exchange, [C.W.] continues to
     giggle, and then to moan/sigh. [C.W.] uses the zoom function
     on the camera to zoom in and out on N.G. and G.Z.

           [C.W.] then sits down at the table with N.G., G.Z., and
     G.S., handing the video camera back to F.R. to continue to film
     the exchange. F.R. films G.Z., calling him a “pink ass nigger.”

           On April 25, 2014, Detective Bill Williams of the Allentown
     Police Department went to William Allen High School to
     investigate what had transpired at the school the day before. A
     video had been posted to F.R.’s Facebook page and
     administration officials had viewed the video and summoned the
     police.    Detective Williams viewed the video and through
     investigation, was able to determine the identity of the juveniles
     seen on the video.

           When he arrived at school on April 25, 2014, [C.W.] was
     summoned to the Principal’s Office at the high school. There, he
     was told that he would not be permitted to leave the office for
     any purpose until he gave a written account of the incident of
     the previous day. In the office were the Assistant Principal, a
     school security office and a uniformed member of the Allentown
     Police Department.       Ultimately, [C.W.] wrote a statement,
     implicating himself in the incident involving N.G., G.Z. and G.S.

           [C.W.]’s mother eventually arrived at school. She and
     [C.W.] were told that they needed to go to the Allentown Police
     Department to talk about the incident in the cafeteria. They
     were transported by a uniformed officer to the police
     department. After issuing Miranda warnings to [C.W.], in the
     presence of his mother, [C.W.] gave a statement where he
     admitted to knowing that F.R. and J.W. had approached N.G.,
     G.Z. and G.S. because of their race, recording the Smack Cam
     incident, and provoking the situation.

Trial Court Opinion, 6/5/2015, at 3-5.

     On June 10, 2014, a petition alleging delinquency was filed, charging

C.W. with ethnic intimidation and harassment. On August 14, 2014, C.W.’s

counsel made an oral motion to suppress and a suppression hearing was


                                    -3-
J-A01018-16


held before a juvenile master. On September 8, 2014, the juvenile master

submitted her recommendation that the motion to suppress be denied. On

September 9, 2014, the juvenile court adopted the recommendation as an

order of the court. No challenge to the master’s recommendation was filed

pursuant to Pa.R.J.C.P. 192.4

       The matter proceeded to an adjudication hearing on October 15,

2014.5 At the conclusion of the hearing, both charges were sustained. On

November 5, 2014, C.W. was placed on official probation.6                  This appeal

follows.

       In C.W.’s first argument, he claims the juvenile court erred by failing

to suppress his custodial statements7 because it was his mother who waived

his Miranda rights, and not C.W.               Specifically, he states, “There is not a

____________________________________________


4
   Rule 192 provides, in pertinent part: “Time limitation. A party may
challenge the master’s recommendation by filing a motion with the clerk of
courts within three days of receipt of the recommendation. The motion shall
request a rehearing by the judge and aver reasons for the challenge.”
Pa.R.J.C.P. 192(a).
5
    All three juveniles were tried together.
6
   C.W. was permitted to remain at home under the care and responsibility
of his mother.
7
  The juvenile court noted that at the conclusion of the suppression hearing,
“counsel for [C.W.] and the Commonwealth agreed to the admissibility of
[C.W.’s] statement made at the school.         Therefore, the writings later
submitted to [the master] for her consideration of the [m]otion only
addressed the oral and written statements made at police headquarters.”
Juvenile Court Opinion, 6/5/2015, at 6.



                                           -4-
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single, reported Pennsylvania case that addresses the precise question of

whether or not a parent has the authority to waive a juvenile’s constitutional

right to be free from self-incrimination in the context of custodial

interrogation.” C.W.’s Brief at 9. Relying on the Juvenile Act, 42 Pa.C.S. §

6301 et seq., C.W. asserts the Pennsylvania Legislature did not intend to

allow parental waivers generally. Id. Moreover, he argues,

      [E]very single case – federal or state – that has examined a
      juvenile Miranda waiver has used a test that examines the
      juvenile’s competency. See Com. v. Harvey, 571 Pa. 533, 547
      (2002) (When looking at the confession of a juvenile, the court
      must consider the juvenile’s age, experience and sophistication
      and whether an interested adult was present.). If a parent could
      waive the juvenile’s Miranda rights, this test would either be
      unnecessary or would be supplemented by a similar evaluation
      of the “interested adult.”

Id. at 11. C.W. contends the Commonwealth did not present any evidence

as to his competency. Id.

      With respect to this issue, we are guided by the following principles:

      Our standard of review in considering an order denying a
      suppression motion is as follows:

         An appellate court may consider only the Commonwealth’s
         evidence and so much of the evidence for the defense as
         remains uncontradicted when read in the context of the
         record as a whole. Where the record supports the factual
         findings of the suppression court, the appellate court is
         bound by those facts and may reverse only if the legal
         conclusions drawn therefrom are in error. It is also well
         settled that the appellate court is not bound by the
         suppression court’s conclusions of law.         However,
         [w]hether a confession is constitutionally admissible is a
         question of law and subject to plenary review.




                                     -5-
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       Thus, this Court does not, nor is it required to, defer to the
       suppression court’s legal conclusions that a confession or
       Miranda waiver was knowing or voluntary. Instead, we
       examine the record to determine if it supports the
       suppression court’s findings of fact and if those facts
       support the conclusion that, as a matter of law, [the
       juvenile] knowingly and intelligently waived his Miranda
       rights.

     [Commonwealth v. Knox, 50 A.3d 749, 756-757 (Pa. Super.
     2012)] (citations and quotations omitted).

     With regard to a juvenile waiving his Miranda rights, we
     preliminarily note:

       Regardless of whether a waiver of Miranda is voluntary,
       the Commonwealth must prove by a preponderance of the
       evidence that the waiver is also knowing and intelligent.

       Miranda holds that “[t]he [juvenile] may waive
       effectuation” of the rights conveyed in the warnings
       “provided the waiver is made voluntarily, knowingly and
       intelligently.” The inquiry has two distinct dimensions.
       First, the relinquishment of the right must have been
       voluntary in the sense that it was the product of a free and
       deliberate choice rather than intimidation, coercion or
       deception. Second, the waiver must have been made with
       a full awareness both of the nature of the right being
       abandoned and the consequences of the decision to
       abandon it. Only if the “totality of the circumstances
       surrounding the interrogation” reveals both an uncoerced
       choice and the requisite level of comprehension may a
       court properly conclude that Miranda rights have been
       waived.

       A determination of whether a juvenile knowingly waived
       his Miranda rights and made a voluntary confession is to
       be based on a consideration of the totality of the
       circumstances, including a consideration of the juvenile’s
       age, experience, comprehension, and the presence or
       absence of an interested adult. In examining the totality
       of circumstances, we also consider: (1) the duration and
       means of an interrogation; (2) the defendant’s physical
       and psychological state; (3) the conditions attendant to

                                   -6-
J-A01018-16


        the detention; (4) the attitude of the interrogator; and (5)
        “any and all other factors that could drain a person’s ability
        to withstand suggestion and coercion.”

                                      …

     Knox, 50 A.3d at 756-757 (quotations and citations omitted)
     (italics in original).

In re V.C., 66 A.3d 341, 350-351 (Pa. Super. 2013).

     Additionally, with respect waiver, we note:

     The basic precepts regarding what constitutes a sufficient waiver
     of Miranda rights have been defined through a line of cases
     beginning with Commonwealth v. Bussey, 486 Pa. 221, 404
     A.2d 1309, 1314 (Pa. 1979) (plurality opinion). In that plurality
     opinion, our Supreme Court rejected the more lenient Federal
     constitutional rule that a defendant can implicitly waive his
     Miranda rights, instead holding that “an explicit waiver is a
     mandatory requirement.” Id. at 1314 (emphasis added); See
     also North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755,
     60 L. Ed. 2d 286 (1979) (holding that under Federal
     constitutional law, an implicit waiver of Miranda rights could be
     found where an accused expresses an understanding of his
     rights and gives a statement without expressly waiving the
     same). Our Supreme Court elaborated that an “explicit waiver”
     meant “an outward manifestation of a waiver such as an oral,
     written or physical manifestation.” Id. at 1314 n. 11.

     In Commonwealth v. Hughes, 536 Pa. 355, 639 A.2d 763 (Pa.
     1994), the Court applied Bussey without acknowledging its
     limited precedential value as a plurality decision. There, the
     Court found that the defendant had “explicitly waived” his
     Miranda rights by “clearly and unequivocally” indicating that he
     understood his rights and then responding to the officer’s
     questions. Id. at 770. In other words, the defendant’s conduct
     “clearly manifested an intent to waive his rights.” Id. Similarly,
     in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa.
     2003), our Supreme Court held that the defendant’s twice
     stating he understood his Miranda rights after they were read to
     him, and answering questions immediately thereafter,
     sufficiently “manifested the intent to waive his rights.” Id. at
     844 n. 13. Finally, in [Commonwealth v. Baez, 21 A.3d 1280

                                    -7-
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      (Pa. Super. 2011)], this Court relied on all of the above-cited
      Supreme Court cases in concluding that the defendant had
      sufficiently manifested his intent to waive his Miranda rights
      where those rights were read to him, he indicated one time that
      he understood them, and then he answered the questions asked
      by police. Baez, 21 A.3d at 1286.

Commonwealth v. Cohen, 53 A.3d 882, 886 (Pa. Super. 2012) (footnote

omitted).

      Lastly, “the per se requirement of the presence of an interested adult

during a police interview of a juvenile is no longer required. Nevertheless, it

remains one factor in determining the voluntariness of a juvenile’s waiver of

his Miranda rights.” In the Interest of T.B., 11 A.3d 500, 507 (Pa. Super.

2010).      Moreover, in Commonwealth v. Starkes, 335 A.2d 698 (Pa.

1975), which both the juvenile master and juvenile court relied on, the

Pennsylvania Supreme Court stated:

      Where an informed adult is present the inequality of the position
      of the accused and police is to some extent neutralized and due
      process satisfied. However, where the adult is ignorant of the
      constitutional rights that surround a suspect in a criminal case
      and exerts his or her influence upon the minor in reaching the
      decision, it is clear that due process is offended. An uninformed
      adult present during custodial interrogation presents an even
      greater liability. The minor in such a situation is given the
      illusion of protection, but is in fact forced to rely upon one who is
      incapable of providing the advice and counsel needed in such a
      situation.

      Unless we require police officers to also advise parents, who are
      in the position to counsel minor suspects during custodial
      interrogation, we will not only fail to assure the full benefits
      sought to be attained by this type of counseling but we will also
      increase the likelihood that the suspect will be misinformed as to
      his rights.


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Commonwealth v. Starkes, 335 A.2d 698, 703 (Pa. 1975) (footnote

omitted).

      Here, in finding C.W. did not invoke his Miranda rights prior to

speaking with the detectives, the juvenile court found the following:

             In the case at bar, [C.W.] was fourteen (14) years old at
      the time of the interview and was in the 9th grade at William
      Allen High School. On April 25, 2014, [C.W.] was summoned to
      the principal’s office. At some point in time later, [C.W.]’s
      mother, Keyanda Pierce, arrived at the school and was informed
      that she and her son had to report to the police station to be
      interviewed. [C.W.] was not told that he was free to leave or
      that he could refuse to report to the police station. Ms. Pierce
      and [C.W.] were escorted to the police station by a uniformed
      officer.

            Upon arrival at the police station, Ms. Pierce and [C.W.]
      were seated in an unlocked interview room, but were not
      informed that they could leave either the room or the police
      department. At approximately 2:05 p.m., Detective Williams
      began his interview with [C.W.].        Ms. Pierce and [C.W.]
      consented to having the interview audio recorded.

            The detectives explained to [C.W.] that he wished to get
      some background information and explained the criminal nature
      of the investigation. Thereafter, Detective Williams read [C.W.],
      the presence of his mother, his Miranda rights. Detective
      Williams asked [C.W.] if he understood his rights and [C.W.]
      confirmed that he did. Detective Williams turned off the audio
      recording and allowed Ms. Pierce and [C.W.] to speak privately.

             No testimony was presented as to what was discussed
      between [C.W.] and his mother.          When Detective Williams
      returned to the room, he asked if they had made their decision
      as to whether they wished to speak to him. He received an
      affirmative response from [C.W.]’s mother and the substantive
      portion of the interview began. [C.W.] did not specifically waive
      his right to remain silent either orally or by executing a written
      waiver. However, he never indicated that he did not want to
      speak with Detective Williams and did, in fact, give oral
      statements to the detective during the interview.

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J-A01018-16



           The interview lasted approximately one hour and forty
     minutes.    Ms. Pierce was present the entire time and was
     present when [C.W.] penned a written statement after he spoke
     with the detective. [C.W.], Ms. Pierce, and the detective signed
     the written statement. Detective Williams testified that he was
     dressed in plain clothes and did not use any physical, verbal or
     psychological intimidation during the interview and did not
     coerce or force [C.W.] to speak to him or to provide a written
     statement.

           Based on the evidence presented at the Suppression
     Hearing on August 14, 2014, we believe that [the juvenile
     master’s] decision to deny suppression of [C.W.]’s statements to
     Detective Williams was correct. [C.W.], age 14, appeared to be
     of normal intelligence and gave responsive answers to the
     detective.2 His mother was present during the entire process
     and no evidence of psychological or physical abuse was
     presented. [C.W.] himself testified that he was not threatened
     to give any statements or to talk with the detective. [C.W.] and
     his mother were informed of [C.W.]’s Miranda rights and were
     provided an opportunity to discuss those rights in private. See
     Commonwealth v. Waters, 483 A.2d 855, 859 (Pa. Super.
     1984). Further we agree that Ms. Pierce acted as an interested
     adult on behalf of [C.W.]. Though she may have been angry and
     frustrated with the actions of [C.W.], such disposition does not
     render    her    uninterested.       See      Commonwealth       v.
     Laudenberger, 715 A.2d 1156, 1159 (Pa. Super. 1998)
     (determining that “the fact that appellant’s mother was upset
     with him is as indicative of concern as it is of disinterest.”).
     _____________________
        2
             Although counsel for [C.W.] argued that [C.W.]
        possessed below level intelligence, no evidence was
        presented to substantiate that argument. As highlighted in
        the Commonwealth’s Letter Brief, no intelligence testing
        results, school performance records or education
        plans/placement records were submitted to [the juvenile
        master] for her consideration. Defense counsel suggested
        that [C.W.] demonstrated below average intelligence when
        he did not know his social security number and made a
        minor mistake reciting his address during his interview.
        The Commonwealth highlighted that [C.W.] did, in fact,
        correctly state his full name, age, birth date, height,

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       weight, and city of birth. We do not believe that a minor
       mistake and unawareness of a social security number
       equates to below average intelligence in a 14 year old.
       Furthermore, Detective Williams testified that [C.W.]
       appeared to understand the questions posed by the
       detective and gave appropriate answers to those questions
       during the interview.
     _____________________

            While it is true that [C.W.]’s mother indicated their desire
     to speak with the police, and [C.W.] himself did not, evidence
     was presented that [he] answered questions during the interview
     and did not give any indication to Detective Williams that he
     either wished to speak to an attorney, wished to stop the
     interview, or refused to answer any questions posed to him by
     the detective. Pursuant to Commonwealth v. Marrero, 687
     A.2d 1102, 1106 (Pa. 1996), “where a defendant neither
     explicitly invokes his Miranda rights nor declines to answer
     questions asked of him, there is no invocation of those rights.”
     (citing Commonwealth v. Beavers, 492 Pa. 522, 532, 424
     A.2d 1313, 1318 (1981)). We do not believe that [C.W.]’s
     actions constituted an invocation of his Miranda rights.

Juvenile Court Opinion, 6/5/2015, at 8-11.

     We agree with the juvenile court’s well-reasoned decision. Based on

the record, C.W.’s conduct, in conjunction with his mother’s actions, “clearly

manifested an intent to waive his rights[.]”   Cohen, 53 A.3d at 886.      We

emphasize the following factors: (1) C.W. consented to having the interview

audio-recorded; (2) the officer read C.W. his Miranda rights and C.W.

indicated that he understood them; (3) C.W. was given time to speak with

his mother privately before answering any questions; (4) although his

mother indicated he was ready to speak, C.W. did not indicate that he did

not want to speak with the officer; (5) C.W. did give an oral statement to

police; and (6) C.W. provided a written statement as well.       As such, we

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conclude C.W.’s conduct manifested his understanding of his Miranda

rights, and he validly waived the same by speaking with the interrogating

officer. C.W.’s argument that he, himself, did not explicitly waive his rights,

but rather it was his mother,8 does not persuade us otherwise. Further, in

accordance with Marrero, supra, and Beavers, supra, C.W. never

attempted to invoked his Fifth Amendment privilege when he began to speak

freely with the officer and never failed to respond to a question. Therefore,

we find no abuse of discretion in this regard, and the juvenile court did not

err in denying his motion to suppress.

       In C.W.’s next issue, he claims the juvenile court erred in finding he

was an accomplice to harassment under 18 Pa.C.S. § 2709(a)(1). 9 C.W.’s

Brief at 12. First, C.W. contends his mere presence at the scene does not

make him an accomplice. Id. at 13. Second, he argues that his filming of
____________________________________________


8
   Moreover, we note his mother’s presence was just one factor to consider
in assessing the validity of his waiver.
9
   With respect to the harassment offense, the juvenile court indicated the
June 10, 2014, petition alleging delinquency as well as Exhibit A (Offenses
Alleged on the Juvenile Petition) of the October 15, 2014, adjudicatory
hearing order pertain to harassment under Subsection 2709(a)(3) (“engages
in a course of conduct or repeatedly commits acts which serve no legitimate
purpose”).    Juvenile Court Opinion, 6/5/2015, at 1 n.1.        While the
Commonwealth did not move to amend the subsection, both parties and the
juvenile court proceeded with the hearing and ultimate adjudication as if
C.W. was charged with Subsection 2709(a)(1). Id. Accordingly, because
there was no surprise during the adjudication proceeding and C.W. does not
raise any prejudice argument with respect to the apparent scrivener’s error
on appeal, we will treat the matter as though C.W. was adjudicated pursuant
to Subsection 2709(a)(1).



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J-A01018-16


the incident does not make him an accomplice because he did not initiate

the attack and he was not the initial recorder. Id. Moreover, C.W. states,

“No evidence was presented that [he] was involved in that posting or that it

was viewable on any of [his] social media sites.” Id. Lastly, he alleges he

did not make any statements inciting or encouraging his co-defendants to

act. Id. at 14.

     “In reviewing the sufficiency of the evidence, we consider
     whether the evidence presented at trial, and all reasonable
     inferences drawn therefrom, viewed in a light most favorable to
     the Commonwealth as the verdict winner, support the jury’s
     verdict beyond a reasonable doubt.”            Commonwealth v.
     Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert.
     denied, Patterson v. Pennsylvania, 135 S. Ct. 1400, 191 L.
     Ed. 2d 373, 2015 U.S. LEXIS 1333, 2015 WL 731963 (U.S.
     2015). “The Commonwealth can meet its burden by wholly
     circumstantial evidence and any doubt about the defendant’s
     guilt is to be resolved by 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.”
     Commonwealth v. Watley, 2013 PA Super 303, 81 A.3d 108,
     113 (Pa. Super. 2013) (en banc) (internal quotation marks and
     citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an
     appellate court, we must review “the entire record ... and all
     evidence actually received[.]” Id. (internal quotation marks and
     citation omitted). “[T]he trier of fact while passing upon the
     credibility of witnesses and the weight of the evidence produced
     is free to believe all, part or none of the evidence.”
     Commonwealth v. Kearney, 2014 PA Super 97, 92 A.3d 51,
     64 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d
     102 (Pa. 2014). “Because evidentiary sufficiency is a question of
     law, our standard of review is de novo and our scope of review is
     plenary.” Commonwealth v. Diamond, 623 Pa. 475, 83 A.3d
     119, 126 (Pa. 2013) (citation omitted), cert. denied, Diamond
     v. Pennsylvania, 135 S. Ct. 145, 190 L. Ed. 2d 107 (2014).

In re C.R., 113 A.3d 328, 333-334 (Pa. Super. 2015).

     The offense of harassment is defined, in relevant part, as follows:

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J-A01018-16


      A person commits the crime of harassment when, with intent to
      harass, annoy or alarm another, the person:

          (1) strikes, shoves, kicks or otherwise subjects the other
          person to physical contact, or attempts or threatens to do
          the same[.]

18 Pa.C.S. § 2709(a)(1).      In order to meet its burden of proof under this

section, the Commonwealth must “prove [the] appellant had the intent to

harass, annoy or alarm.”      Commonwealth v. Wheaton, 598 A.2d 1017,

1020 (Pa. Super. 1991).         “Anything less than a showing of intent is

insufficient.”   Id. (citation omitted).   “An intent to harass may be inferred

from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d

719, 721 (Pa. Super. 2013) (citation omitted).

      C.W. was found to be an accomplice to the harassment charge

pursuant to 18 Pa.C.S § 306, which provides, in pertinent part:

      § 306. Liability for conduct of another; complicity

      (a) General rule.—A person is guilty of an offense if it is
      committed by his own conduct or by the conduct of another
      person for which he is legally accountable, or both.

                                           …

      (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:

                                           …

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


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18 Pa.C.S. § 306.

      Here, the evidence presented at the adjudication hearing, including the

video at issue, established that C.W. and his two co-defendants entered the

cafeteria together. They congregated near the table where the victim and

his two friends were playing cards.    One co-defendant, F.R., operated the

camera, announced the video they were making was called “Smack Cam

Part 3,” and told the second co-defendant, J.W., to hit the victim’s head.

J.W. then walked up to the victim from behind and smacked him on the back

of the head.    F.R. handed the camera to C.W. to continue filming the

incident.   While C.W. filmed, F.R. ran his hand through the victim’s hair,

commented on its smoothness, and said the victim could be his daughter.

F.R. tried to procure the phone of the victim’s friend to call his mother.

During the filming, C.W. is heard giggling, moaning, and sighing. C.W. then

gave the camera to F.R., who continued filming and made a derogatory

comment toward the victim’s friend.

      As provided above, the totality of the evidence presented in the matter

at issue, viewed in the light most favorable to the Commonwealth,

establishes that C.W. acted as an accomplice in committing the harassment

offense. He entered the cafeteria with his two co-defendants, he stood by as

F.R. smacked or struck the victim on the back of the head, and he also took

part in filming the incident.   F.R.’s intent to harass can be established by

circumstantial evidence, in which he interacted with the victim and struck


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him with the purpose of annoying him. See 18 Pa.C.S. § 2709(a)(1); see

also Wheaton, supra.        Moreover, C.W. was not merely present at the

scene as his actions demonstrated an intent to aid F.R. in committing the

offense. See Pa.C.S. § 306. Likewise, the fact that he did not engage in

any activity regarding the uploading of the video to social media is of no

consequence. It is the juveniles’ actions at the time of the incident that is

the focus of our inquiry.   Therefore, C.W. is criminally responsible for the

acts of his co-defendants, and he was properly adjudicated of harassment.

      In C.W.’s final argument, he claims the juvenile court erred in finding

the Commonwealth proved he was an accomplice to the offense of ethnic

intimidation under Section 2710. See C.W.’s Brief at 14. He notes, “There

are no reported cases addressing accomplice liability for ethnic intimidation,

and this Court has never upheld a conviction for ethnic intimidation in the

absence of either extreme violence or an ongoing course of conduct.” Id. at

15. Moreover, C.W. asserts case law has demonstrated that “a person does

not commit ethnic intimidation simply by using an isolated racial slur during

the commission of an offense; more is needed to demonstrate the

requirement of hatred.” Id. at 16. Lastly, he contends:

      [T]he Commonwealth presented no evidence that [C.W.] acted
      with the intent to promote or aid that offense, as is required to
      be an accomplice under Section 306. Ethnic intimidation is not a
      result-based offense; it is not concerned with the outcome of
      prohibited conduct.     Rather, it is an intent-based offense
      concerned only with why some prohibited conduct occurred. It is
      an offense committed, or not committed, solely within the heart
      and mind of a particular actor. In adjudicating [C.W.] as an

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       accomplice to ethnic intimidation, the Court necessarily found
       that he specifically intended to promote or facilitate the offense
       of ethnic intimidation, and further he took or attempted some
       action in furtherance of that offense. In so finding, the Court
       must also have found that [C.W.] was aware of, and supported,
       F.R.’s internal motivation and racial animus. The Commonwealth
       simply presented no evidence from which that finding can be
       reasonably inferred.

Id. at 16-17.

       Keeping our standard of review in mind with respect to sufficiency of

the evidence, we note the following.           The offense of ethnic intimidation is

defined as:

       A person commits the offense of ethnic intimidation if, with
       malicious intention toward the race, color, religion or national
       origin of another individual or group of individuals, he commits
       an offense under any other provision of this article or under
       Chapter 33 (relating to arson, criminal mischief and other
       property destruction) exclusive of section 3307 (relating to
       institutional vandalism) or under section 3503 (relating to
       criminal trespass) with respect to such individual or his or her
       property or with respect to one or more members of such group
       or to their property.

18 Pa.C.S. § 2710(a).10         “Malicious intention,” under this section, “means

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

element of any offense referred to in subsection (a) motivated by hatred



____________________________________________


10
   “Ethnic intimidation is by its explicit terms a contingent crime, proof of
which is dependent upon the establishment of a predicate crime.”
Commonwealth v. Magliocco, 806 A.2d 1280, 1285 (Pa. Super. 2002).
As indicated above, the juvenile court found that C.W. committed the
predicate offense of harassment. 18 Pa.C.S. § 2709(a)(1).



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J-A01018-16


toward the race, color, religion or national origin of another individual or

group of individuals.” 18 Pa.C.S. § 2710(c).

      Our Courts have had limited opportunity to apply [S]ection
      2710.     Nevertheless, our decisions suggest that “malicious
      intention” as required by the language of [S]ection 2710(c) may
      be found to exist only where the circumstances establish that the
      defendant was motivated by animus toward the victim’s race or
      ethnicity and targeted the victim expressly on that basis.

Commonwealth v. Sinnott, 976 A.2d 1184, 1189-1190 (Pa. Super. 2009).

      In finding there was sufficient evidence to support the charge of ethnic

intimidation, the juvenile court opined:

             There are a limited number of decisions by the appellate
      courts pertaining to ethnic intimidation. In Commonwealth v.
      Rink, 574 A.2d 1078 (Pa. Super. 1990), a conviction of ethnic
      intimidation was upheld where “the defendant participated with a
      group of teenagers in the beating of a black male in front of the
      black male’s residence. During the incident, the defendant was
      heard urging the group to “kill the nigger; get him.” In re:
      M.J.M.[,858 A.2d 1259, 1263-1264 (Pa. Super. 2004)] (citing
      Rink at 1080). The defendant also punched the victim’s wife
      and called her “bitch” and “nigger.” Id. The Superior Court
      affirmed the decision of the lower court, determining that the
      remarks were racially motivated and not the result of
      emotionally charged behavior. In re: M.J.M., at 1263-1264
      (citing Rink at 1081).

            In Commonwealth v. Ferino, 640 A.2d 934, 935 (Pa.
      Super. 1994), however, the Superior Court determined that
      shouting, “I’m going to kill you, you f—king nigger” immediately
      prior to firing a gun at the victims (one black and one white)
      []did not constitute sufficient evidence that racial prejudice was
      the [“]underlying cause for the prohibited behavior.” Id. at 938.
      The Court explained that “the [defendant’s] conduct was isolated
      in nature, brief in its execution and unattended by any trappings
      consistent with a finding that the terroristic threat [the predicate
      crime] had an origin of malicious intent ‘motivated by a hatred
      toward race, color … or national origin’ of the victim.” Id.


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J-A01018-16


            In Commonwealth v. Sinnott, 30 A.3d 1105 (Pa. 2011),
     the Supreme Court of Pennsylvania was called upon to
     determine “[w]hether, to prove ethnic intimidation pursuant to
     18 Pa.C.S. § 2710, the Commonwealth must prove the
     defendant targeted the victim solely based on the victim’s race,
     color, religion, or national origin.” Id. at 1107. In that case, the
     victim left her mother’s home to investigate screaming and
     cursing that she heard outside. Outside, the victim encountered
     the defendant, “a tenant and employee of her father, throwing
     power tools her father had given him against the concrete
     steps.”

              When [the victim] asked [the defendant] what was
        wrong, he said her father cheated him, he was going to
        take every house her father owned, and then told her,
        “[Y]ou, M-F’ers, are going to have to go back to Mexico,
        you wetbacks.” He also called [the victim] a “fucking
        bitch” and “fucking whore.”        [The victim] told [the
        defendant that] she was not Mexican, but Puerto Rican,
        and therefore had as much right to be in the United States
        as he did; [the defendant] replied, “No you don’t, you
        wetback, go back to the Alamo.” [The victim] testified
        [the defendant] kept talking about the Alamo and how her
        father “did him dirty,” and threatened to kill her father for
        cheating him.

     Sinnott at 1106 (internal citations omitted).

           The defendant eventually went back in his own home, only
     to emerge again, “wielding a power drill, which he kept revving.
     He walked around the block for about 45 minutes, and [the
     victim called the police.]     Id.   The police arrived and the
     defendant went back in his home. After the police left, the
     defendant came back outside, and approached the victim and
     her mother. The victim “instinctively put her hands up to stop
     him. Her long nails got caught in his shirt, and as the two
     struggled, four of her nails were ripped from their nail beds,
     causing her fingers to bleed.” Id. The defendant was charged
     with a variety of crimes, including ethnic intimidation.

           After a discussion of the facts and reasoning behind the
     Ferino decision and examination of a Court of Appeals of
     Michigan decision regarding a similar issue, the Court in Sinnott
     determined that “all that is required [of the ethnic intimidation

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J-A01018-16


     statute] is that the ethnically malicious intent be present,
     concurrent with the underlying criminal act,” holding that “the
     intent element is satisfied if there is evidence that ethnic malice
     was a motivator for the defendant’s criminal act, it need not be
     the sole motivator.” Sinnott at 1110.

           In the case at bar, the entire criminal episode was
     captured on video, and posted to the Internet as a “smack cam.”
     After Detective Williams learned about the incident and reviewed
     the video recording of the incident, he interviewed [C.W.]
     concerning the use of the term “pinks.”

        [ADA Dimmig].       So, did you ask … C.W. about the term
        “pink?”

        [Detective Williams]. Yes.

        Q. And what did C.W. tell you about the term “pink?”

        A. It was a racial term.

        Q. A racial term?

        A. Yes.

        Q. Not a pinko commie.

        A. No.

        Q. And not a “pink” homosexual.

        A. No.

     Tr. at 103-104:19-5.

           While it is undisputed that [C.W.] was not the individual
     who actually smacked N.G. in the head, it is clear from the
     videotape, and from [C.W.]’s statements to Detective Williams
     that he “aided or agreed or attempted to aid” the actual
     aggressor in smacking N.G., an action that was based, at least in
     part, on N.G.’s race. When [C.W.] and his friends initially
     approached N.G. and his friends seated at the table in the lunch
     room, they did so as a unit. It was clear that [C.W.] did not just
     happen to be in the room in close proximity to the incident.

                                     - 20 -
J-A01018-16


     [C.W.] is initially seen on the approach to the table. Later, the
     initial person filming the “smack cam” hands the camera over to
     [C.W.], who continues to film the interactions and is heard
     laughing, giggling, and making other noises. Additionally, the
     Commonwealth introduced [C.W.]’s statement, which appears to
     address the victim, N.G.:

            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.

     Comm. Exhibit 2, October 15, 2014 (spelling errors in original).

Juvenile Court Opinion, 6/5/2015, at 18-21.

     We agree with the court’s analysis. Contrary to C.W.’s argument, and

as explained above, C.W. was not merely present at the scene and his

actions were sufficient to conclude that he acted as an accomplice.

Moreover, we point to his confession, which confirms C.W. and his friends

targeted and antagonized the victim because of his race.

     Furthermore, C.W.’s reliance on case law that a single derogatory

comment cannot support a finding of ethnic intimidation is misplaced as

Ferino is distinguishable from the present matter. In Ferino, the evidence

merely established the defendant aimed and fired a weapon in the direction

of the victims, which was preceded by a pejorative and derogatory threat.

Here, C.W. and his cohorts entered the cafeteria with the intent to film and

assault the victim because he was of a different race. C.W. admits that their

actions were based on race, which establishes a malicious racial animus.

See Sinnott, 976 A.2d at 1189-1190. Accordingly, we conclude the record

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J-A01018-16


contains sufficient evidence to sustain C.W.’s adjudication for ethnic

intimidation. Therefore, we affirm the order of disposition.

      Dispositional order affirmed.

      Judge Lazarus joins the memorandum.

      Justice Fitzgerald files a concurring and dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/27/2016




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