J. S69026/15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Q.S., A MINOR           :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
APPEAL OF: Q.S.,                            :
                                            :           No. 275 EDA 2015
                         Appellant          :


           Appeal from the Dispositional Order, October 15, 2014,
            in the Court of Common Pleas of Philadelphia County
              Juvenile Division at No. CP-51-JV-0002385-2014


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


JUDGMENT ORDER BY FORD ELLIOTT, P.J.E.:             FILED FEBRUARY 26, 2016

      This appeal arises from an adjudicatory hearing which found appellant

delinquent for commission of a robbery, graded as a felony of the first

degree, and directed placement at a juvenile residential treatment facility.

The only properly raised issue on appeal is a challenge to the sufficiency of

the evidence of robbery. We affirm on the careful and well-reasoned opinion

of the Honorable Abram Frank Reynolds which was filed on April 8, 2015.

      Appellant did not file a Rule 1925(b) statement with the juvenile court

although ordered to do so.         We could find his sufficiency claim waived;

however,   this    failure   constitutes   ineffectiveness   per   se.   Pa.R.A.P.

Rule 1925(a)(3).     Commonwealth v. Scott, 952 A.2d 1190 (Pa.Super.

2008).     Instantly, the juvenile court has thoroughly addressed the

sufficiency claim in its opinion, and therefore a remand is not necessary.
J. S69026/15


      Additionally, appellant appears, within the context of a sufficiency

claim, to raise an issue as to alleged tainted identification by the victim.

Although we find this issue waived for failure to properly raise the challenge

in a suppression motion below, we find the totality of the evidence

demonstrates that the victim’s identification of appellant from a single photo

was not so suggestive as to taint the subsequent photo array or the

independent in-court identification.      This victim had adequate time to

observe appellant at the time of the encounter on the street, and gave a

clear description to the police regarding appellant’s appearance and his

unique speech pattern prior to being shown the photo of a person known to

police as fitting the same description.

      Adjudication of delinquency is affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/26/2016




                                     -2-
                                                                                Circulated 02/02/2016 03:09 PM




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                                             OPINION

REYNOLDS, J.                                                                  April 8, 2015



          This opinion arises from an adjudicatory hearing before this Court on October 1, 2014
after which the Appellant was found to have committed the delinquent act of Robbery, graded as
a felony of the first degree. Immediately following this hearing, the Court adjudicated the
Appellant delinquent and ordered the probation department to plan for placement. This appeal
followed. On February 4, 2015, this Court filed an order directing Appellant to file a Statement
of Errors Complained of on Appeal pursuant to Pa.RAP. 1925(b). No response was filed nor
received by this Court. Consequently, this Court prepared the following Opinion addressing
sufficiency of the evidence. The relevant facts elicited at the adjudicatory hearing are stated
below.

          On Monday, August 18, 2014, at about 5:10 a.m., the complainant, Chinule Levy, while
on his way to work, only 20-30 feet away from his home located across from Fem Hill Park in
the Germantown section of Philadelphia, observed a male, later identified as the Appellant, come
out of the park. (N.T. October l, 2014, p.3-4). The Appellant, who was wearing a black T-shirt,
jeans and black sneaker boots, stopped by an unoccupied car and then began to travel in the
opposite direction of Mr. Levy, (October l, 2014, p. 3-4). Mr. Levy turned around to look at the
Appellant, who was riding a bike, at which time he circled back around toward the complainant,
(N.T. October l, 2014, p.3). As he got closer, the Appellant, who had his left hand on the handle·


                                                 1
bar and his right hand under his shirt, stated "I know you have something for me Oldhead."
When Mr. Levy replied that he didn't have anything, the Appellant responded by saying, "Don't
make me pull the strap." (N.T. October I, 2014, p.4). Mr. Levy understood this to mean that the
appellant had a gun. (N. T. October 1, 2014). He fled to his sister's house which was only two
doors away on the corner of Abbotsford and Laurens Street and began ringing the doorbell, (N.T.
October 1, 2014, p.4-5). Once his sister came to the door, the Appellant circled back toward the
area where he had originally been seen. (N.T. October 1, 2014, p.4). The complainant called the
police who responded and interviewed him a couple of hours later. (N. T. October 1, 2014, p.4-5).
At that time the complainant gave a description of the Appellant as being very nervous and
whose speech was very gargled, like he had marbles in his mouth. (N.T. October 1, 2014, p.5).

        Earlier that same day, at approximately 4:34 a.m., Officer Monte and his partner Officer
Tauscher saw the Appellant sitting in the rear driver's side seat of a parked car with the ignition
off, located at 226 West Seymore Street. (N.T. October 1, 2014, p.9, 12). They stopped to
investigate what appeared to be a curfew violation. (N.T. October 1, 2014, p.9). In the course of
obtaining biographical information, Officer Monte noticed that the Appellant was wearing a
black T-shirt and bluejeans. (N.T. October 1, 2014, p.9-10).    Officer Monte could barely
understand the Appellant because he mumbled the entire time. (N:T. October l , 2014, p.10).
After filling out a Pedestrian Incident Report (Form 75-48A), Officer Monte warned the
Appellant not to be out at that time in the future. (N.T. October 1, 2014, p.11 ). After issuing the
curfew violation the officer remembered that the Appellant remained standing by the car.

       Approximately two hours later, at about 6:42 a.m., Officer Tauscher proceeded to 409
West Abbotsford Street in response to a radio call of a robbery which reportedly occurred a few
blocks away from where the officer had initially encountered the Appellant. (N.T. October I,
2014, p.13-15). Officer Tauscher reviewed the description of the perpetrator and interviewed the
complainant. (N.T. October 1, 2014, p.14). Officer Tauscher, interviewed the complainant, who
described his assailant as having matching clothing to that of the Appellant. (N.T. October l,
2014, p.15). Based upon these factors, Officer Tauscher believed that the appellant may have
been the perpetrator of the robbery which prompted him to show the complainant a picture of the
Appellant. Mr. Levy immediately identified the Appellant as the person who had threatened him.
(N.T. October I, 2014, p.14, 16). The complainant went to Northwest Detective Division where




                                                  2
                                                                         a ... ~.
    he was shown a photo array which included another photo of the Appellant. Mr. Levy again
    identified the Appellant. (N.T. October l, 2014, p.16-18). Additionally, Mr. Levy made a
    positive identification of the Appellant at the adjudicatory hearing. (N.T. October l, 2014, p.18-
     19).

            When reviewing the sufficiency of the evidence, an appellant court must view all of the
    evidence presented at trial in a light most favorable to the verdict winner in determining whether
    every element of the crime has been proven beyond a reasonable doubt. Commonwealth v
I
    Devine, 26A.3d 1139 (Pa Super.2011 ). The findings of a hearing judge in a juvenile delinquency
    proceeding will not be reversed by the Superior Court unless it appears that the judge has clearly
    abused his discretion or committed an error of law. In re Love, 646 A2d 1233 (Pa. Super. 1994).

            This Court finds that the Appellant had committed the delinquent act of Robbery based
    upon a finding that in the course of committing a theft, he intentionally put the complainant in
    fear of immediate serious bodily injury. 18 Pa.C.S.A. §3701 (a) (1) (ii). To sustain a conviction
    for Robbery under this subsection, a Court must focus upon the nature of the threat and whether
    the defendant reasonably placed another person in fear of immediate serious bodily injury.
    Commonwealth v Valentine. 101 A.3d 801 (Pa Super. 2014). In Commonwealth v Hurd, 407
    A.2d 418 (Pa. Super. 1979), the Court found that where the defendant threatened the robbery
    victim with what he intended him to believe to be a gun, evidence was sufficient to sustain a
    connection for robbery based upon a threat to cause immediate serious bodily injury in the
    course of committing a theft.

            In the instant case, this Court found that the Appellant's actions reasonably caused the
    complainant to believe that he was in possession of a gun. The Appellant's words and actions
    clearly constituted a demand for money accompanied by a threat to cause serious bodily injury to
    the complainant. It was reasonable for the complainant to believe that the Appellant had a
    weapon which he was prepared to use if necessary. Furthermore, it was equally clear that the
    complainant reasonably believed that he was in danger of immediate serious bodily injury based
    upon his actions in fleeing to his sister's house.




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For all of the above reasons the findings of this Court should be affirmed.




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