J-S74033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: R.F., A                :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: R.F., A MINOR                   :
                                               :
                                               :
                                               :
                                               :   No. 606 EDA 2016

             Appeal from the Dispositional Order January 25, 2016
    In the Court of Common Pleas of Philadelphia County Juvenile Division at
                       No(s): CP-51-JV-0002488-2015


BEFORE: BOWES, J., LAZARUS, J., and RANSOM, J.

MEMORANDUM BY RANSOM, J.:                             FILED FEBRUARY 27, 2018

        R.F., a minor, appeals from the dispositional order of January 25, 2016,

following his adjudication of delinquency for robbery and conspiracy to commit

robbery.1 We affirm.

        In November 2015, the complainant, K.C., had just finished riding his

bicycle with a friend, when he approached his home in Philadelphia. Upon

approaching his home, K.C. saw about ten boys across the street, including

Appellant and his co-defendant, J.S. Notes of Testimony (N.T.), 1/4/2016 at

4, 6-7. One of the boys, known only as Tymir, walked up to K.C. and grabbed

him by the shirt. Id. at 5. Tymir claimed that K.C. owed him money for

marijuana. Id. at 5, 12-13. K.C. denied any debt, grabbed Tymir’s shirt, and

the two began to tussle. Id. at 5, 13. At that time, the boys who were sitting

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1   18 Pa.C.S. §§ 3701(a)(1)(iv) and 903, respectively.
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across the street walked over to where he and Tymir were tussling. Id. at 6,

13.

      K.C. testified that the boys grabbed him, then punched, kicked, and

kneed him for about thirty minutes. Id. at 8, 13-14. K.C. identified Appellant

as a member of the group, but could not determine who was punching,

kicking, or kneeing him, as he had bent over and covered his head. Id. at 7,

13-14. K.C. could not be sure that all ten boys participated in the onslaught.

Id. at 20. K.C. testified that he "saw [Appellant] at the scene. Everybody as

a group, but I did not see him hit me, because I had my head down." Id. at

16. K.C. also testified that he knew Tymir and Appellant to hang out prior to

the incident. Id. at 11.

      After the group stopped beating him, they began to beat K.C.’s friend,

and K.C. went to get help. Id. at 8. Then K.C. saw one of the boys pick up

K.C.'s bike and walk away with the rest of the group. Id. at 17. K.C. could

not discern who walked away with the bike. Id. K.C. testified that he suffered

no injuries or pain because of the incident. Id. at 9. The bike, which cost

$300, was not recovered. Id. at 10.

      K.C. was the only witness at the hearing on January 4, 2016, and no

exhibits were entered.     Id.   That same day, the juvenile court found that

Appellant committed the acts of robbery and conspiracy to commit robbery,

both graded as felonies of the second degree, and entered a dispositional

order requiring Appellant to pay restitution as part of an adjudication of

delinquency.   On January 25, 2016, following a dispositional hearing, the

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juvenile court entered a second dispositional order requiring that Appellant

placed at the Glen Mills School for Boys. See Dispositional Hearing Order,

1/25/16, at 2; Statement in Absence of Transcript Pursuant to Pa.R.A.P. 1923.

       Appellant timely filed a notice of appeal in February 2016. In March

2016, the court issued an order directing the filing of a statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b).          In April 2016,

Appellant timely filed a statement of errors, which outlined that the Appellant

was unable to assert any errors as he had not received any notes of testimony.

Appellant contemporaneously filed a motion for extension of time to comply

with the juvenile court’s order upon receipt of the complete notes of

testimony. The juvenile court took no action on Appellant's request for an

extension of time.

       In October 2016, the juvenile court issued an Opinion, explaining that it

found much of K.C.’s testimony not credible.          Juvenile Court Opinion,

10/12/2016, at 1, 4. Specifically, the juvenile court rejected K.C.’s testimony

that (1) he went to get assistance when the group of boys beat his companion

and that (2) K.C. suffered no injury as a result of his beating from the group

of boys. Id. at 1, 4.2 In this Court, Appellant timely filed a motion to remand

the matter for filing of a supplemental 1925(b) statement and to obtain the

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2 In its opinion, the juvenile court suggested that K.C.’s companion provided
information that he was uninjured following this incident. Juvenile Court
Opinion, 10/12/2016, at 1. However, this is not supported by the record as
K.C. was the only individual to testify, did not testify as to his companion’s
injuries, and no exhibits were entered. Id.

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outstanding notes of testimony from the dispositional hearing.       This Court

granted the motion and remanded the matter to the juvenile court with

instructions (1) to have the notes of testimony from the dispositional hearing

made available within thirty days of the remand, (2) to permit Appellant to

file a supplemental statement of errors, and (3) for the juvenile court to file a

supplemental opinion in response to Appellant’s supplemental statement of

errors.

      However, the judge who presided over the hearing retired. Statement

in Absence of Transcript, 2/28/2017, at 2. Additionally, notes of testimony

from the dispositional hearing were unavailable, and Appellant submitted a

statement in absence of transcript to complete the record. Id. In February

2017, Appellant filed a supplemental statement of errors raising detailed

challenges to the sufficiency and weight of the evidence. In June 2017, the

Philadelphia Court of Common Pleas Family Division sent a letter to this Court

providing that no opinion was filed in the instant matter as the juvenile court

judge was no longer on the bench.         Letter, 6/30/2017, from Jennifer E.

Haughton, to Office of the Prothonotary.

      Appellant presents the following questions for our review:

      1.     Was not the evidence insufficient as a matter of law to find
      Appellant guilty of robbery as a felony of the second degree, 18
      Pa.C.S. § 3701(a)[(1)(iv)], and conspiracy to commit robbery as a
      felony of the second degree, 18 Pa.C.S. § 903, because the
      evidence failed to establish beyond a reasonable doubt that
      Appellant intended to commit, committed, or agreed to commit a
      theft or took part in any act or agreement which caused or intended
      to cause the complainant bodily injury, and the conviction resulted


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      from mere speculation, mere presence at the scene, and guilt by
      association, especially considering the juvenile court found the sole
      witness [not credible] and did not believe an assault occurred?

      2.    Was not the verdict against the weight of the evidence
      because the juvenile court found the complainant unbelievable,
      and the complainant did not see or hear Appellant engage in any
      criminal conduct, did not see Appellant take any of the
      complainant's items, no items were ever recovered, and despite
      Appellant's failure to file a post-dispositional motion, is Appellant
      permitted to raise the issue in his Statement of Errors, In re J.G.,
      145 A.3d 1179 (Pa. Super. 2016)?

Appellant’s Brief at 4 (some formatting added).

      In its first issue, Appellant claims that the evidence was insufficient to

sustain his adjudication of delinquent. Appellant’s Brief at 12-24. According

to Appellant, the sole evidence presented, the testimony of a witness that the

court admittedly found largely not credible, could not sustain the verdict and,

even if believed, established the mere presence of the Appellant. Id. at 12-

13.

      We review Appellant's challenge to the sufficiency of the evidence as

follows:

      The standard we apply in reviewing the sufficiency of the evidence
      is whether viewing all the evidence admitted at trial in the light
      most favorable to the verdict winner, there is sufficient evidence
      to enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. Any doubts regarding a defendant's guilt may be
      resolved by the fact-finder unless the evidence is so weak and
      inconclusive that as a matter of law no probability of fact may be
      drawn from the combined circumstances. The Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial

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        evidence. Moreover, in applying the above test, the entire record
        must be evaluated and all evidence actually received must be
        considered. Finally, the 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.

Interest of J.B., 147 A.3d 1204, 1213–14 (Pa. Super. 2016) (citing

Commonwealth v. Brown, 23 A.3d 544, 559–60 (Pa. Super. 2011) (en

banc)), appeal granted in part, In Interest of J.B., 169 A.3d 587 (Pa. 2017).

        “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. § 3701(a)(1). “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.” 18

Pa.C.S. § 3701(a)(2). Additionally, a robbery is complete if there is the taking

in the presence of the owner rather than from his person. Commonwealth

v. Mullin, 166 A.2d 555, 557 (Pa. Super. 1960).

        A conviction for conspiracy requires the trier of fact to find:

        (1) the defendant intended to commit or aid in the commission of
        the criminal act; (2) the defendant entered into an agreement with
        another (a “co-conspirator”) to engage in the crime; and (3) the
        defendant or one or more of the other co-conspirators committed
        an overt act in furtherance of the agreed upon crime.

Commonwealth v. Murphy, 844 A.2d 1228, 1238 (Pa. 2004) (citing

Commonwealth v. Spotz, 716 A.2d 580, 592 (Pa. 1998), and 18 Pa.C.S. §

903).

        Additionally,




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      [M]ere association with the perpetrators, mere presence at the
      scene, or mere knowledge of the crime is insufficient to establish
      that a defendant was part of a conspiratorial agreement to commit
      the crime. There needs to be some additional proof that the
      defendant intended to commit the crime along with his co-
      conspirator. Direct evidence of the defendant's criminal intent or
      the conspiratorial agreement, however, is rarely available.
      Consequently, the defendant's intent as well as the agreement is
      almost always proven through circumstantial evidence, such as by
      the relations, conduct or circumstances of the parties or overt acts
      on the part of the co-conspirators. Once the trier of fact finds that
      there was an agreement and the defendant intentionally entered
      into the agreement, that defendant may be liable for the overt
      acts committed in furtherance of the conspiracy regardless of
      which co-conspirator committed the act.

Commonwealth v. Golphin, 161 A.3d 1009, 1019 (Pa. Super. 2017), appeal

denied, 170 A.3d 1051 (Pa. 2017) (citing Murphy, 844 A.2d at 1238 (citations

and quotations omitted).

      In the instant case, viewed in the light most favorable to the

Commonwealth as verdict winner, the evidence and the reasonable inferences

therefrom were sufficient to establish all of the elements of robbery and

conspiracy to commit robbery, as Appellant, acting in concert with Tymir and

the group of boys, established a “unity of criminal purpose.” Commonwealth

v. French, 578 A.2d 1292, 1294-1295 (Pa. Super.                 1990) (finding

relationships of sisters and their boyfriends coupled with their conduct before,

during and after their collective assault on a victim established a unity of

criminal purpose sufficient for the jury to find conspiracy beyond a reasonable

doubt).

      K.C.’s testimony established that Tymir approached K.C., claiming that

K.C. owed him money. Following K.C.’s assertion that he did not owe money,


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Tymir grabbed him by the shirt collar. At this juncture, Tymir had intentionally

put K.C. in fear of immediate bodily injury in the name of a debt. K.C. noted

that when he grabbed Tymir’s shirt collar in response, he identified Appellant,

an associate of Tymir, among the boys congregated across the street. K.C.

was already tussling with Tymir when the boys from across the street came

over to them. The group of boys then grabbed K.C. and collectively beat him.

Although K.C. could not discern who specifically hit, kicked, or kneed him, K.C.

identified Appellant as one of the boys who was at the scene and beat him.

After the altercation, one of the members of the group picked up K.C.’s bike

and left with the group.

      The evidence believed by the juvenile court as a fact finder was sufficient

to establish that Appellant manifested an intent and agreement to rob K.C.

when he and others converged around K.C. following Tymir’s asserted

grievance and grip on K.C.’s shirt collar. The juvenile court believed K.C’s

testimony that Appellant participated in beating K.C. This overt act completed

the conspiracy, which was furthered by the taking of K.C.’s bicycle from his

presence and the group of boys walking away together with it. Additionally,

Appellant and Tymir were known to hang out prior to the incident.         These

facts, viewed together, where sufficient to establish a “unity of criminal

purpose” and convict Appellant of conspiracy to commit robbery and robbery.

French, 578 A.2d at 1294–95.

      We also note that Appellant’s argument attacks the credibility of K.C.

An argument regarding the credibility of a witness's testimony “goes to the

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weight of the evidence, not the sufficiency of the evidence.” Commonwealth

v. Gibbs, 981 A.2d 274, 281–82 (Pa. Super. 2009), appeal denied, 3 A.3d

670 (Pa. 2010). As such, we address Appellant’s credibility concerns in his

next issue.

       Appellant contends in his second claim that the verdict is against the

weight of the evidence, as K.C.’s testimony was uncorroborated and

incredible. See Appellant’s Brief at 25.3

       The following well-settled principles apply to our review of a weight of

the evidence claim:

          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 witnesses. An
          appellate court cannot substitute its judgment for that of the
          finder of fact. Thus, we may only reverse the ... verdict if it
          is so contrary to the evidence as to shock one’s sense of
          justice.

       Commonwealth v. Small, 741 A.2d 666, 672-73 (Pa. 1999).
       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.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003), cert. denied,

542 U.S. 939 (2004) (most internal citations omitted).


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3As discussed, infra, Appellant correctly states that his challenge to the weight
of evidence, raised in the first instance in his 1925(b) statement, is preserved
pursuant to In re J.G., 145 A.3d 1179 (Pa. Super. 2016), and may be properly
addressed by this Court in the permanent absence of the juvenile court judge.
Appellant’s Brief at 29-31.

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        “The general rule in this Commonwealth is that a weight of the evidence

claim is primarily addressed to the discretion of the judge who actually

presided at trial.” Armbruster v. Horowitz, 813 A.2d 698, 702 (Pa. 2002).

Further,

        “[w]hen the challenge to the weight of the evidence is predicated
        on the credibility of trial testimony, our review of the trial court's
        decision is extremely limited. Generally, unless the evidence is so
        unreliable and/or contradictory as to make any verdict based
        thereon pure conjecture, these types of claims are not cognizable
        on appellate review.”

Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007) (quoting

Commonwealth v. Rossetti, 863 A.2d 1185, 1191 (Pa. Super. 2004)

(citation omitted). “This Court applies the same standard for reviewing weight

of the evidence claims in juvenile cases as those involving adults.” In re R.N.,

951 A.2d 363, 370 (Pa. Super. 2008), called into question on other

grounds, In re J.B., 106 A.3d 76 (2014).

        In In re J.G., this Court relied on controlling precedent to hold that,

unlike adult criminal cases, in juvenile delinquency matters the failure to

preserve a weight of the evidence challenge in a post-dispositional motion

does not result in automatic waiver of the claim on appeal. 4 In re J.G., 145

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4   Specifically, this Court reasoned:
      While the comment to Pa.R.Crim.P. 607(A) specifies that weight of the
      evidence claims in criminal proceedings are waived unless they are
      raised with the trial court in a motion for a new trial, “the Pennsylvania
      Rules of Juvenile Procedure have no counterpart requiring the same
      manner of preservation.” In re J.B., 106 A.3d at 91. Indeed, “the



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A.3d at 1187 (citing In re J.B., 106 A.3d at 91). Due to a lack of guidance in

the current Rules of Juvenile Court Procedure, a juvenile may properly

preserve a weight of the evidence claim by raising it for the first time in his

Pa.R.A.P. 1925(b) statement, and we will remand the matter to the juvenile

court to allow the juvenile to file a post-dispositional motion nunc pro tunc.

In re J.G., 145 A.3d at 1187–88; see also In re J.B., 106 A.3d at 99;

Commonwealth v. Widmer, 547 A.2d 137, 139 (Pa. 1997).

       However, in this instance, a remand to grant the juvenile court the

jurisdiction to act on a challenge to the weight of the evidence would be of no

avail, as the presiding juvenile court judge is no longer available to consider

Appellant’s claim. See Widmer, 547 A.2d at 139. In such circumstances,

our Supreme Court has held that a properly preserved claim must be reviewed

by the appellate tribunal in the first instance. Armbruster v. Horowitz, 813

A.2d 698, 705 (Pa. 2002).




____________________________________________


    current Rules of Juvenile Court Procedure—which ‘govern delinquency
    proceedings in all courts'—are utterly silent as to how a weight of the
    evidence claim must be presented to the juvenile court so that it may
    rule on the claim in the first instance, which is ... a necessary
    prerequisite for appellate review.” Id. at 98 (footnote omitted).
    Pa.R.J.C.P. 620(A)(2) governs the filing of what it expressly designates
    as an “optional post-dispositional motion.” See Pa.R.J.C.P. 620(A)(2)
    (“Issues raised before or during the adjudicatory hearing shall be
    deemed preserved for appeal whether or not the party elects to file a
    post-dispositional motion on those issues”).
In re J.G., 145 A.3d at 1187 (some formatting added).

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      Here, the juvenile court functioned as fact-finder in the Appellant’s

adjudication, complete with the exclusive responsibility to determine K.C.’s

credibility. K.C.’s testimony was the only evidence presented at the hearing.

The juvenile court had the unique opportunity to observe K.C. firsthand and

necessarily assessed K.C.’s credibility prior       to   adjudicating   Appellant

delinquent for acts constituting conspiracy and robbery. The juvenile court

was free to believe all, some, or none of K.C.’s testimony, and as a result of

an opinion particularly abundant in editorial commentary, we have some

insight into the elements of testimony that the court found particularly not

credible.

      Bound as we are in this instance to the standards adhered to by a trial

court considering an appellant’s weight claim challenging a jury verdict, we

“cannot grant a new trial ‘because of a mere conflict in testimony or because

the trial judge on the same facts would have arrived at a different conclusion.’”

Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994); see also

Ambruster, 813 A.2d 698, 705. Thus, we may only reverse the verdict if it

is so contrary to the evidence as to shock one’s sense of justice. Small, 741

A.2d at 672-73.

      In this case, the verdict does not shock one's sense of justice.       The

juvenile court expressly provided that it “disbelieved much of the story told

by [K.C.] under oath and believed with any certainty only the portion of the

story in which [K.C.] had the [Appellant] taking part in the theft of their


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bicycles [sic].” Juvenile Court Opinion, 10/12/2016, at 1, 4 (The juvenile court

rejected K.C.’s testimony that (1) he went for assistance when the group of

boys beat his companion and that (2) K.C. suffered no injury as a result of his

beating from the group of boys). Additionally, the court specifically noted that

it “recognized the force involved in taking [the bicycle.]” Id. at 4. Accordingly,

as we must defer to these credibility findings, we are constrained to deny

Appellant relief. Brown, 648 A.2d at 1189, Small, 741 A.2d at 672-73.

      Order affirmed. Jurisdiction relinquished.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/27/18




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