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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IN RE: D.W., A MINOR                      :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                                          :
APPEAL OF: D.W., A MINOR                  :         No. 2974 EDA 2017


                  Appeal from the Order Dated August 9, 2017,
                 in the Court of Common Pleas of Lehigh County
                Criminal Division at No. CP-39-JV-0000418-2017


BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED APRIL 02, 2019

        D.W., a minor, appeals from the August 9, 2017 dispositional order

entered following his adjudication of delinquency for robbery, simple assault,

and criminal conspiracy to commit robbery.1 After careful review, we affirm.

        The relevant facts and procedural history of this case, as gleaned from

the certified record, are as follows. On June 30, 2017, the Commonwealth

filed a delinquency petition against D.W. alleging that he committed the

delinquent acts of robbery, criminal conspiracy to commit robbery, and simple

assault. This petition stemmed from an incident that occurred on March 26,

2017, in which D.W. and three other juvenile males2 attempted to rob

12 year-old victim, C.D., of his bicycle in Allentown, Pennsylvania. (See notes




1   18 Pa.C.S.A. §§ 3701(a)(1)(iv), 2701(a)(3), and 903(a), respectively.

2These individuals were later identified as R.S., ZAY.B-B., and ZAI.B-B. (See
notes of testimony, 8/9/17 at 76.)
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of testimony, 8/9/17 at 27-31.) On August 9, 2017, a juvenile adjudication

hearing was conducted before the Honorable Kelly L. Banach, at the conclusion

of which D.W. was adjudicated delinquent of the aforementioned offenses.

That same day, the juvenile court placed D.W. on formal probation and

ordered him to pay restitution. D.W. did not file a post-dispositional motion.

This timely appeal followed on September 8, 2017. In lieu of filing a formal

opinion, the juvenile court indicated “that the reasons why this Court

substantiated [D.W.’s] delinquent acts and the reasons for disposition of

probation” are set forth on pages 133-144 of the adjudication hearing

transcript. (See juvenile court order, 7/23/18 at ¶ 3.)

     On appeal, D.W. raises the following issues for our review:

           A.    Was the circumstantial evidence insufficient to
                 prove, beyond a reasonable doubt that [D.W.]
                 did, in the course of committing a theft, inflict
                 bodily injury upon another or threaten another
                 with or intentionally put him in fear of
                 immediate bodily injury?

           B.    Was the circumstantial evidence insufficient to
                 prove, beyond a reasonable doubt that [D.W.]
                 did, with the intent of promoting or facilitating
                 the commission of a crime, agree with another
                 person or persons that they or one or more of
                 them would engage in conduct which
                 constitutes such crime or an attempt or
                 solicitation to commit such crime, or agree to
                 aid such other person or persons in the planning
                 or commission of such crime or of an attempt or
                 solicitation to commit such crime?

           C.    Was the circumstantial evidence insufficient to
                 prove, beyond a reasonable doubt that [D.W.]



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                   did attempt by physical menace to put another
                   in fear of imminent serious bodily injury?

Appellant’s brief at 7.

      All of D.W.’s claims challenge the sufficiency of the evidence to support

his adjudications. We apply the following standard of review when examining

a challenge to the sufficiency of the evidence supporting an adjudication of

delinquency:

            When a juvenile is charged with an act that would
            constitute a crime if committed by an adult, the
            Commonwealth must establish the elements of the
            crime by proof beyond a reasonable doubt. When
            considering a challenge to the sufficiency of the
            evidence following an adjudication of delinquency, we
            must review the entire record and view the evidence
            in the light most favorable to the Commonwealth. In
            determining whether the Commonwealth presented
            sufficient evidence to meet its burden of proof, the
            test to be applied is whether, viewing the evidence in
            the light most favorable to the Commonwealth and
            drawing all reasonable inferences therefrom, there is
            sufficient evidence to find every element of the crime
            charged. The Commonwealth may sustain its burden
            of proving every element of the crime beyond a
            reasonable doubt by wholly circumstantial evidence.

            The facts and circumstances established by the
            Commonwealth need not be absolutely incompatible
            with a defendant’s innocence. Questions of doubt are
            for the hearing judge, unless the evidence is so weak
            that, as a matter of law, no probability of fact can be
            drawn from the combined circumstances established
            by the Commonwealth. The finder of fact is free to
            believe some, all, or none of the evidence presented.

In the Interest of P.S., 158 A.3d 643, 650 (Pa.Super. 2017) (citation

omitted), appeal denied, 174 A.3d 1029 (Pa. 2017).



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      “A person is guilty of robbery if, in the course of committing a theft, he

. . . inflicts bodily injury upon another or threatens another with or

intentionally puts him in fear of immediate bodily injury.”       18 Pa.C.S.A.

§ 3701(a)(1)(iv).   “An act shall be deemed ‘in the course of committing a

theft’ if it occurs in an attempt to commit theft or in flight after the attempt

or commission.” Id. at § 3701(a)(2).

      The crime of simple assault requires proof of attempting “by physical

menace to put another in fear of imminent serious bodily injury.” 18 Pa.C.S.A.

§ 2701(a)(3).   Serious bodily injury is defined as a “[b]odily injury which

creates a substantial risk of death or which causes serious, permanent

disfigurement, or protracted loss or impairment of the function of any bodily

member or organ.” Id. at § 2301. We have held this proof may be met by

evidence of pointing a gun at another person under circumstances

demonstrating an intent to cause fear of serious injury. See In re Maloney,

636 A.2d 671, 674 (Pa.Super. 1994) (stating, “the act of pointing a gun at

another person [can] constitute simple assault as an attempt by physical

menace to put another in fear of imminent serious bodily injury” (citations and

internal quotation marks omitted)).

      Criminal conspiracy, in turn, requires the Commonwealth to prove that

appellant “(1) entered into an agreement to commit or aid in an unlawful act

with another person or persons; (2) with a shared criminal intent; and (3) an

overt act was done in furtherance of the conspiracy.” Commonwealth v.



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Mitchell, 135 A.3d 1097, 1102 (Pa.Super. 2016), appeal denied, 145 A.3d

725 (Pa. 2016); see also 18 Pa.C.S.A. § 903(a). A conspiratorial agreement

can be proven by circumstantial evidence and “inferred from a variety of

circumstances including, but not limited to, the relation between the parties,

knowledge of and participation in the crime, and the circumstances and

conduct of the parties surrounding the criminal episode.” Commonwealth

v. Feliciano, 67 A.3d 19, 26 (Pa.Super. 2013) (en banc) (citation and

internal quotation marks omitted), appeal denied, 81 A.3d 75 (Pa. 2013).

      Viewing the evidence, and all reasonable inferences drawn therefrom,

in the light most favorable to the Commonwealth, the verdict winner, we

conclude that the Commonwealth presented ample circumstantial evidence to

support D.W.’s adjudication of delinquency for robbery, simple assault, and

criminal conspiracy to commit robbery.       The evidence presented at the

adjudication hearing established that D.W. and his cohorts actively worked in

concert to rob C.D. of his bicycle on the day in question, and placed him in

fear of imminent serious bodily injury in attempting to do so.

      Specifically, the record establishes that on the afternoon of March 26,

2017, C.D. was riding his bike in an alley near his aunt’s home in Allentown,

Pennsylvania, with a GoPro camera attached to his helmet when he observed

D.W. and three other juvenile males, one of whom briefly displayed a gun.3




3This gun was later determined to be a metallic BB-gun. (Notes of testimony,
8/9/17 at 20.)


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(Notes of testimony, 8/9/17 at 27-29, 55-56.) C.D. testified that these four

boys approached him; and as he began to ride away, they accosted him in a

nearby alley and attempted to wrangle his bicycle away from him. (Id. at

30-31.)   Specifically, C.D. testified that one of the boys grabbed the

handlebars of his bike; another stood behind him and placed a gun into his

back; a third boy began “fumbling” with his helmet, attempting to turn the

GoPro camera off; and the fourth boy stood by brandishing a large stick or

tree branch. (Id. at 31-33.) C.D. further testified that one of the four boys

had a bandana over his face and the other three boys had their hoods up.

(Id. at 33-34.) During the ensuing struggle, C.D.’s GoPro camera fell to the

ground and broke, and when he bent over to retrieve it, one of the juveniles

began to strike him with a large tree branch or stick. (Id. at 32-33.) C.D.

managed to escape on his bike and rode to his aunt’s home to call the police,

as D.W. and the other juveniles fled. (Id. at 33, 60-61.)

     Allentown Police Officer Jacob Glenny testified that he arrived at the

scene shortly after receiving a call from dispatch for an armed robbery in

progress and was able to locate D.W. and the three other juveniles in a yard

approximately two blocks away.       (Id. at 62-63.)    At the time of his

apprehension, D.W. was observed in possession of a black and silver metallic

BB-gun, and an identical BB-gun was recovered from one of D.W.’s cohorts.

(Id. at 64-67.)   Allentown video cameras further confirmed that all four

juveniles had fled the scene together after C.D. escaped.       (Id. at 77.)



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Additionally, Officer Neil Battoni, an investigator with the Youth Division of the

Allentown Police Department, testified that one of D.W.’s cohorts, R.S.,

informed him that the two other juveniles he and D.W. were with on the day

of this incident and decided to take C.D.’s bicycle when they saw him ride

past, and that R.S. acknowledged that they all pulled up their hoods in attempt

to obscure their faces. (Id. at 76-77.)

      Based on the foregoing, we agree with the juvenile court that there was

sufficient   circumstantial   evidence    to   support   D.W.’s   adjudication   of

delinquency for robbery, simple assault, and criminal conspiracy to commit

robbery. See, e.g., In re Maloney, 636 A.2d at 674; Commonwealth v.

McKeever, 689 A.2d 272, 274 (Pa.Super. 1997) (holding, inter alia, that the

evidence was sufficient to support defendant’s conviction for criminal

conspiracy to commit robbery where he was associated with his accomplices,

had knowledge of the crime, and was present and participated in the crime).

Accordingly, we affirm the August 9, 2017 dispositional order.

      Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 4/2/19




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