J-S15029-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: A.J.W., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: A.J.W.                          :
                                               :
                                               :
                                               :
                                               :   No. 1489 WDA 2018

          Appeal from the Dispositional Order Entered August 22, 2018
    In the Court of Common Pleas of Washington County Criminal Division at
                        No(s): CP-63-JV-0000227-2018


BEFORE:      GANTMAN, P.J.E., SHOGAN, J., and COLINS*, J.

MEMORANDUM BY SHOGAN, J.:                                 FILED JULY 16, 2019

       Appellant, A.J.W., a minor, appeals from the dispositional order entered

after he was adjudicated delinquent on charges of receiving stolen property

and possession of a firearm by a minor.1 We affirm.

       The juvenile court summarized the history of this case as follows:

              The merit hearing transcript reveals the following facts.
       [Appellant], an adjudicated delinquent, has been on probation
       with the Washington County Juvenile Probation Office as of August
       13, 2018. Jonathan Gould, the probation officer assigned to
       [Appellant’s] case, decided to visit [Appellant] at his home in the
       City of Washington for failing to comply with the terms of his
       juvenile probation order. Specifically, [Appellant] had been failing
       to attend the Jobs Program. Mr. Gould asked a fellow probation
       officer, Josh Hanley, to accompany him to [Appellant’s] residence.

            The two probation officers arrived at [Appellant’s] home and
       knocked on the front door. Subsequently, [Appellant’s] father
       answered the front door and the officers were invited into the
____________________________________________


1   18 Pa.C.S. §§ 3925(a) and 6110.1, respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     house. The probation officers and [Appellant’s] mother and father
     went to the back porch of the house to discuss why [Appellant]
     did not attend the Jobs Program. According to Mr. Hanley,
     [Appellant’s] father told him that his son was refusing to wake up
     in the mornings and not abiding by the rules of the home (i.e.,
     missing curfews). [Appellant’s] father also indicated that he and
     his son had a verbal altercation the morning of the visit regarding
     a backpack. Thereafter, [Appellant] came downstairs from [the]
     bedroom, located on the second story, and entered the back
     porch. Mr. Gould confronted [Appellant] about the problems he
     was having with his parents, but [Appellant] was not forthcoming
     with any information.

           At some point later, the probation officers asked to conduct
     a search of [Appellant’s] room for the backpack, and [Appellant’s]
     parents consented. [Appellant’s] mother led Mr. Hanley upstairs
     to [Appellant’s] bedroom. Mr. Hanley informed [Appellant’s]
     mother that he was going to conduct a search and she returned
     downstairs to join Mr. Gould and the others on the back porch.
     Mr. Hanley found the backpack behind a door inside [Appellant’s]
     bedroom that leads to the attic. According to Mr. Hanley, the only
     way to access the attic is through this door to [Appellant’s]
     bedroom. The backpack was found just beyond the door leading
     to the attic on the stairs. Within the backpack, Mr. Hanley found
     a loaded .38 Special Revolver manufactured by Taurus located
     under a pair of Air Jordan Nike Sneakers. Consequently, Mr.
     Hanley went back downstairs and placed [Appellant] in custody.

           On August 14, 2018, a delinquency petition was filed against
     [Appellant] charging him with Receiving Stolen Property (F-2),
     Firearms Carried Without a License (F-3), and Possession of
     Firearm by a Minor (M-1). On August 21, 2018, this [c]ourt held
     a merit hearing on the charges. On that date, [Appellant]
     acknowledged the charge of Possession of a Firearm by a Minor,
     but not the remaining two charges. Therefore, the [c]ourt held a
     hearing to determine whether [Appellant] committed the
     delinquent acts of Receiving Stolen Property and Firearms Carried
     without a License. After taking testimony and hearing argument
     by the attorneys, the [c]ourt ruled that the Commonwealth was
     unable to prove beyond a reasonable doubt that [Appellant]
     committed the delinquent act of Firearms Carried without a
     License, but concluded that the Commonwealth proved by beyond
     a reasonable doubt that [Appellant] committed the delinquent act


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       of Receiving Stolen Property.           The [c]ourt then imposed a
       consented disposition.2

Juvenile Court Order, 10/1/18, at 1-3.

       On August 31, 2018, Appellant filed a timely post-dispositional motion

pursuant to Pa.R.J.C.P. 620.            The Commonwealth filed a response to

Appellant’s motion on September 17, 2018. On October 1, 2018, the juvenile

court entered an order denying Appellant’s post-dispositional motion. This

timely appeal followed. The juvenile court did not direct Appellant to file a

statement pursuant to Pa.R.A.P. 1925(b).           Thereafter, the juvenile court

issued its Pa.R.A.P. 1925(a) opinion.

       Appellant presents the following issues for our review:

       I. Did the lower court err in adjudicating the minor delinquent as
       to the charge of receiving stolen property (specifically a firearm)
       beyond a reasonable doubt when it found that the evidence was
       sufficient to prove the element of having knowledge or belief that
       the firearm in question was probably stolen?

                                          * * *

       III. Did the lower err by adjudicating the minor delinquent as to
       the charge of receiving stolen property (specifically a firearm)
       beyond a reasonable doubt when the weight of the evidence was
       against such an adjudication?

Appellant’s Brief at 8.3




____________________________________________


2   Appellant was ordered placed at Glenn Mills Schools. Order, 8/22/18.

3  Appellant has withdrawn the second issue from our consideration.
Appellant’s Brief at 8, 20.

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      Appellant first argues that his adjudication of delinquency on the charge

of receiving stolen property was based upon insufficient evidence. Appellant’s

Brief at 15-20. Appellant asserts that the juvenile court improperly inferred

that Appellant knew or should have known that the firearm was stolen because

there was no evidence as to how Appellant came into possession of the gun.

Id. at 16-17. Also, Appellant claims that the circumstantial evidence that the

gun was located in a hidden location and that there were scratches over the

serial number is not sufficient proof that Appellant had knowledge that it was

stolen. Id. at 17-20. We disagree.

      We begin our review mindful of the following standard:

            In evaluating a challenge to the sufficiency of the evidence,
      we must determine whether, viewing the evidence in the light
      most favorable to the Commonwealth as verdict winner, together
      with all reasonable inferences therefrom, the trier of fact could
      have found that each and every element of the crimes charged
      was established beyond a reasonable doubt. In making this
      determination, we must evaluate the entire trial record and
      consider all the evidence actually received. It is within the
      province of the fact finder to determine the weight to be accorded
      each witness’s testimony and to believe all, part, or none of the
      evidence introduced at trial.

In the Interest of J.C., 751 A.2d 1178, 1180 (Pa. Super. 2000). Moreover,

the Commonwealth may sustain its burden of proving every element of the

crime beyond a reasonable doubt by wholly circumstantial evidence. In the

Interest of J.D., 798 A.2d 210, 212 (Pa. Super. 2002).

      Receiving stolen property is defined as follows:

            (a) A person is guilty of theft if he intentionally
            receives, retains, or disposes of movable property of

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           another knowing that it has been stolen, or believing
           that it has probably been stolen, unless the property
           is received, retained, or disposed with intent to
           restore it to the owner.

18 Pa.C.S. § 3925(a).

     In order to establish that a person has committed the offense of

receiving stolen property, the Commonwealth must prove: “(1) the property

was stolen; (2) the defendant was in possession of the property; and (3) the

defendant knew or had reason to believe the property was stolen.”

Commonwealth v. Foreman, 797 A.2d 1005, 1011 (Pa. Super. 2002).

                 [A] permissible inference of guilty knowledge
           may be drawn from the unexplained possession of
           recently stolen goods without infringing upon an
           accused’s right of due process or his right against self-
           incrimination, as well as other circumstances, such as
           the accused’s conduct at the time of arrest.
           Nonetheless, the mere possession of stolen property
           is insufficient to prove guilty knowledge, and the
           Commonwealth must introduce other evidence, which
           can be either circumstantial or direct, that
           demonstrates that the defendant knew or had reason
           to believe that the property was stolen.            This
           additional evidence can include the nature of the
           goods, the quantity of the goods involved, the lapse
           of time between possession and theft, and the ease
           with which the goods can be assimilated into trade
           channels.      Further, whether the property has
           alterations indicative of being stolen can be used to
           establish guilty knowledge.       Finally, even if the
           accused offers an explanation for his possession of
           stolen property, the trier of fact may consider the
           possession as unexplained if it deems the explanation
           unsatisfactory.

Foreman, 797 A.2d at 1012-1013 (citations omitted).




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      The Commonwealth can prove that the defendant in possession of the

property “knew or had reason to know” that the property was stolen by wholly

circumstantial evidence, such as “a short time between the theft and

defendant’s possession.” Commonwealth v. Marrero, 914 A.2d 870, 873

(Pa. Super. 2006). In addition, “[w]e have previously held that possession of

a vehicle twelve days after it had been stolen allowed for an inference of guilty

knowledge.” Id. (citing Commonwealth v. Williams, 362 A.2d 244, 250

(Pa. 1976)).

      The juvenile court offered the following thorough analysis regarding the

challenge to the sufficiency of the evidence claim raised by Appellant:

             Herein, it was established that the backpack was located
      behind a door leading to the attic in which [Appellant] resided (a
      single-family dwelling) and that the door was only accessible
      through [Appellant’s] bedroom. N.T., 10, 17-18, August 21,
      2018. Mr. Hanley testified that he found the gun under a pair of
      Air Jordan sneakers. See id. at 18. The serial numbers on the
      gun had distinctive or intentionally made scratches on them. See
      id. at 19; Exhibit 3. No other distinctive scratch marks appear on
      the gun. See Exhibits 1 & 2. Additionally, the owner of the gun
      reported it as missing to the City of Washington Police Department
      on August 8, 2018 (6 days before it was recovered). See N.T.,
      29-30, August 21, 2018.1 Further, upon [Appellant] being placed
      into custody, Mr. Hanley asked [Appellant] if he wanted to inform
      his mother why he was detained. See id. at 20. In response,
      [Appellant] said to his mother, “They found a gun.” Id.

            1 In his post-dispositional motion, [Appellant] argues
            that the Commonwealth did not “invoke” the recency
            inference to prove his knowledge or belief that the
            weapon was stolen, citing Commonwealth v. Robinson
            in support thereof. 128 A.3d 261, 264-65 (Pa. Super.
            Ct. 2015). This [c]ourt does not read the Robinson
            case as requiring the Commonwealth to “invoke” the
            recency inference. The [c]ourt can distill all the facts

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          as testified to by the witnesses and make its own
          determination of whether the facts, as a whole,
          indicate whether a particular delinquent act was
          committed.

           The situation at hand is distinguishable from Commonwealth
     v. Owens, 271 A.2d 230 (Pa. 1970). In that case, the Supreme
     Court held that a conviction could not stand where a handgun had
     been stolen approximately seven weeks prior to the appellant’s
     arrest, without any other evidence of guilty knowledge from the
     Commonwealth. See id. at 233. It is also different than the facts
     in Robinson where the Commonwealth was unable to produce any
     evidence of the recency requirement, as well as no evidence
     supporting an inference of guilty knowledge. As the Superior
     Court stated,

          The handgun in Robinson’s possession was located in
          an unremarkable location (his coat pocket), and it had
          not been altered in any way to conceal its stolen
          status, as the manufacturer’s serial number remained
          plainly visible. Robinson’s conduct at the time of
          arrest likewise provided no indicia of guilty
          knowledge, as he merely stared “stone–faced” in
          response to Officer Dinger’s inquiries, and he did not
          offer any false explanation for his possession of the
          handgun or make any effort to flee apprehension. In
          sum, the Commonwealth introduced no evidence
          whatsoever at trial regarding how, when, or where
          Robinson acquired the handgun, or from whom.
          Instead, the Commonwealth proved only that
          Robinson possessed stolen property, which, as
          indicated, by itself is not sufficient to prove guilty
          knowledge.

     Robinson, 128 A.3d at 269.

           The [c]ourt finds instructive Commonwealth v. Williams,
     362 A.2d 244 (Pa. 1976). In Williams, the defendant was charged
     and convicted of receiving stolen property (car) that had been
     stolen 11 days earlier. See id. at 247. In addition to the vehicle
     being recently stolen, the Supreme Court found significant these
     factors, which demonstrated circumstantial evidence of the
     defendant’s knowledge of the car’s theft: (1) that the victim and
     the defendant were unknown to each other and unrelated; (2) the

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     defendant drove through a gas station while being pursued by the
     police; and (3) and the interior of the car evidenced an attempt to
     remove the radio. See id. at 250. Additionally, in Commonwealth
     v. Hogan, 468 A.2d 493 (Pa. Super. Ct. 1983), the defendant was
     charged and convicted of receiving stolen property (car) that had
     been stolen 28 days earlier. In addition to the recency of the
     vehicle being stolen, the [c]ourt found the circumstantial evidence
     of the defendant’s knowledge of the car’s theft was that the
     defendant was unable to produce an owner's registration card, nor
     a driver’s license. Further, the owner of the car did not know the
     defendant. See id. at 494.

           In this case, the [c]ourt could find that the recency (6 days)
     plus a lack of explanation as to how [Appellant] came to possess
     the recently stolen property (gun) would have been sufficient to
     adjudicate [Appellant] delinquent. See Williams.2 There was
     other indicia, however, of guilty knowledge or belief that the
     weapon was stolen aside from the mere recency of it being stolen,
     such as how the gun was hidden or sequestered, that it was
     located in an area only accessible through [Appellant’s] bedroom,
     that there were distinct scratch marks over the serial numbers,
     and that there were no similar scratch marks on other parts of the
     gun.3

           2  Once the Commonwealth proved the recency of the
           thefts, the [finder of fact] was free to infer the
           defendant’s guilt (that he could have been the thief)
           unless the defendant could offer a satisfactory
           alternative explanation for his possession of the stolen
           goods. See Commonwealth v. Williams, 362 A.2d 244
           (Pa. 1976) (citations omitted).

           3  The serial numbers on the gun are located on the
           outside of the gun and imprinted on it; they are
           located in areas not requiring the gun to be
           dismantled.    See N.T., 26-27, August 21, 2018;
           Exhibit 3.

Juvenile Court Order, 10/1/18, at 5-7.

     Upon review of the record in the light most favorable to the

Commonwealth, we are likewise convinced that the juvenile court judge,


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sitting as the finder of fact, properly could infer that Appellant possessed the

requisite guilty knowledge beyond a reasonable doubt.           Therefore, this

evidence permits the finder of fact to believe that Appellant either knew or

had reason to believe that the gun was stolen.        Thus, we conclude that

Appellant’s sufficiency of the evidence claim with regard to the adjudication of

delinquency for receiving stolen property lacks merit.

      Appellant next argues that his adjudication of delinquency on the charge

of receiving stolen property was against the weight of the evidence.

Appellant’s Brief at 21-24. Appellant contends that the juvenile court failed

to give proper weight to the evidence that he claims refutes the conclusion

that he had knowledge or belief that the firearm was stolen. Id. at 22. For

example, Appellant asserts that, although the firearm was reported missing

six days prior to its recovery in Appellant’s possession, the gun was not

reported as “stolen” until the same day that it was recovered from Appellant.

Id. Appellant also claims that, although there were scratch marks on the

serial numbers of the firearm, the identifying number was still visible. Id. at

23.

      Our standard of review is as follows:

      The determination of whether a verdict is against the weight of
      the evidence is governed by the standard set forth in
      Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403 (Pa.
      2003):

            The weight of the evidence is 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

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           witnesses. An appellate court cannot substitute its
           judgment for that of the finder of fact. Thus, we may
           only reverse the lower court’s verdict if it is so
           contrary to the evidence as to shock one’s sense of
           justice. Moreover, where the trial court has ruled on
           the weight claim below, an appellate court’s role is not
           to consider the underlying question of whether the
           verdict is against the weight of the evidence. Rather,
           appellate review is limited to whether the trial court
           palpably abused its discretion in ruling on the weight
           claim.

     Champney, 832 A.2d at 408 (citations omitted). This Court
     applies the same standard for reviewing weight claims in juvenile
     cases. McElrath v. Commonwealth, 405 Pa. Super. 431, 592
     A.2d 740, 745 (Pa. Super. 1991). In considering weight of the
     evidence claims, it is not the function of an appellate court to
     substitute its judgment based on a cold record for that of the judge
     who conducted the juvenile adjudication hearing. Id. Credibility
     is for the trier of fact, who is free to believe all, part or none of
     the evidence presented. Id. A challenge to the weight of the
     evidence concedes that sufficient evidence exists to sustain the
     verdict, but questions which evidence is to be believed.
     Commonwealth v. Charlton, 2006 PA Super 149, 902 A.2d 554,
     561 (Pa. Super. 2006), appeal denied, 590 Pa. 655, 911 A.2d 933
     (Pa. 2006). An appellate court reviews the trial court’s exercise
     of discretion, not the underlying question of whether the verdict
     is against the weight of the evidence. Commonwealth v.
     Gibson, 553 Pa. 648, 720 A.2d 473, 480 (Pa. 1998).

In the Interest of: R.N., Jr., 951 A.2d 363, 370-371 (Pa. Super. 2008).

     Here, the juvenile court judge, sitting as the finder of fact, was free to

believe all, part, or none of the evidence against Appellant and to make

inferences of guilty knowledge. The juvenile court weighed the evidence and

concluded Appellant perpetrated the crime of receiving stolen property. As

the juvenile court stated, “It cannot conclude that the adjudication would

shock the conscious.” Juvenile Court Order, 10/1/18, at 8. We agree that


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this determination is not so contrary to the evidence so as to shock one’s

sense of justice.   We decline Appellant’s invitation to assume the role of

factfinder and reweigh the evidence.       Accordingly, we conclude that the

juvenile court did not abuse its discretion in determining Appellant’s weight of

the evidence claim lacks merit.

      Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/2019




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