J-A24017-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.M., A MINOR                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA

APPEAL OF: K.M., A MINOR

                                                      No. 2721 EDA 2014


              Appeal from the Dispositional Order of April 15, 2014
              In the Court of Common Pleas of Philadelphia County
                Juvenile Division at No.: CP-51-JV-0000284-2014


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY WECHT, J.:                          FILED NOVEMBER 20, 2015

       K.M. (“Appellant”) appeals his dispositional order upon the juvenile

court’s findings of delinquency on the charges of aggravated assault,

criminal conspiracy, recklessly endangering another person, simple assault,

and attempted robbery.1          Appellant contends that, because the evidence

established only that he was a bystander to the events underlying his

adjudication, it was insufficient to establish his delinquency on the

underlying charges beyond a reasonable doubt.            After careful review,

viewing the evidence as our standard of review requires, we reject

Appellant’s argument.



____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
     See 18 Pa.C.S. §§ 2702, 903, 2705, 2701, 901 (18 Pa.C.S. § 3701,
attempt), respectively.
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       The    evidence,     viewed     in      the   light   most   favorable   to   the

Commonwealth, establishes an account of the underlying events consistent

with the juvenile court’s summary, which provides as follows:

       On January 28, 2014, at or about 5:15 p.m., the complainant
       K.Z. (“Victim”) was walking home from school with his friend,
       S.T.[,] down Princeton Avenue near Large Street in Northeast
       Philadelphia. At about this time, Victim was approached by
       Appellant and codefendants B.R. and R.K. (collectively,
       “Codefendants”). Appellant recorded a video as Codefendants,
       unprovoked, began punching, kicking and kneeing Victim in
       various parts of his body including his back, head, arms and
       stomach.[2] Codefendants pulled Victim’s jacket over his head
       so he would be vulnerable. One of the defendants, unknown to
       Victim as his jacket was over his head, asked Victim if he had a
       phone and searched his pockets. Victim then fell to the ground
       and Codefendants continued aggressively punching and kicking
       Victim, with Appellant recording, until they decided to leave.
       After the vicious attack, Victim suffered from dizziness for a few
       minutes and swelling on both his forehead and cheek, which hurt
       to touch. Officer [William] Helsel, from the organized crime,
       criminal intelligence unit, testified that Northeast Detectives sent
       a video from [YouTube], which appeared to be a video of a
       “knock[-]out game,” to his unit for review. Officer Helsel, via
       facial recognition on Facebook and other investigation, received
       positive identifications [of] the actors in the video, which were
       Appellant and Codefendants. Officer Helsel and his partner,
       Officer [John] Pasquerello[,] then went to the schools that the
       males attended and all three were arrested. Recovered from
       Appellant was a Galaxy cell phone. A warrant was prepared for
       the phone and recovered from the phone was the video of the
       beating that was observed on [YouTube]. Appellant offered no

____________________________________________


2
      Although the video evidence is not included in the certified record,
uncontradicted hearing testimony indicates that Appellant began recording
before the first blow was struck. It further indicates that Appellant can be
heard laughing throughout the recording.




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       factual or character evidence in his case-in-chief.[3] At the close
       of trial the [juvenile court] entered findings of [delinquency].
       After the adjudicatory hearing, the [juvenile court] learned that
       Appellant had a history of mental health treatment.            The
       [juvenile court] also learned that other videos were found on the
       phone including Appellant and Codefendants together playing
       video games and smoking marijuana, as well as a video
       depicting Appellant breaking into and rummaging through a car
       registered in the state of New Jersey. Appellant was adjudicated
       delinquent as the [juvenile court] found that he was in need of
       treatment, supervision, and rehabilitation.

Juvenile Court Opinion, 12/8/2014, at 1-2 (names changed to protect the

juveniles’ identities).

       On September 16, 2014, Appellant filed the instant appeal.            On

September 25, 2014, the juvenile court entered an order directing Appellant

to file a concise statement of errors complained of on appeal pursuant to

Pa.R.A.P. 1925(b).      On October 16, 2014, Appellant timely complied.      The

juvenile court filed its Rule 1925(a) opinion on December 8, 2014, ripening

this case for our review.

       Appellant raises the following challenge to his adjudication:

       Whether the evidence at the adjudicatory hearing was sufficient
       to sustain the court’s verdict pursuant to Pa.R.J.C.P. 408
       [concerning rulings on delinquency] that Appellant was
       [delinquent] beyond a reasonable doubt of conspiracy and guilty
       of the related substantive offenses on the grounds of accomplice
       liability.

Brief for Appellant at 1.

____________________________________________


3
       Neither of Codefendants, who were tried at the same proceeding,
testified or presented evidence in their defense.



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     When presented with a challenge to the sufficiency of the evidence we

apply the following standard of review:

     In reviewing the sufficiency of the evidence to support the
     adjudication below, . . . the Due Process Clause of the United
     States Constitution requires proof beyond a reasonable doubt at
     the adjudication stage when a juvenile is charged with an act
     which would constitute a crime if committed by an adult.
     Additionally, . . . in reviewing the sufficiency of the evidence to
     support the adjudication of delinquency, just as in reviewing the
     sufficiency of the evidence to sustain a conviction, though we
     review the entire record, we must view the evidence in the light
     most favorable to the Commonwealth.

In re K.J.V., 939 A.2d 426, 427-28 (Pa. Super. 2007) (quoting In re A.D.,

771 A.2d 45, 48 (Pa. Super. 2001)).

     [W]hen examining sufficiency issues, we bear in mind that: the
     Commonwealth’s burden may be sustained by means of wholly
     circumstantial evidence; the entire trial record is evaluated and
     all evidence received against the defendant considered; and the
     trier of fact is free to believe all, part, or none of the evidence
     when evaluating witness credibility.

Commonwealth v. Crabill, 926 A.2d 488, 490-91 (Pa. Super. 2007)

(quoting Commonwealth v. Markman, 916 A.2d 586, 598 (Pa. 2007)).

     To sustain a charge of criminal conspiracy, the Commonwealth must

prove the following statutory criteria beyond a reasonable doubt:

     (a) Definition of conspiracy.—A person is guilty of
     conspiracy with another person or persons to commit a crime if
     with the intent of promoting or facilitating its commission he:

        (1)      agrees with such other person or persons that
        they or one or more of them will engage in conduct which
        constitutes such crime or an attempt or solicitation to
        commit such crime; or



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         (2)        agrees 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.

                                    ****

      (e) Overt act.—No person may be convicted of conspiracy to
      commit a crime unless an overt act in pursuance of such
      conspiracy is alleged and proved to have been done by him or by
      a person with whom he conspired.

18 Pa.C.S. § 903.

      To sustain a conviction for criminal conspiracy, the
      Commonwealth must establish, beyond a reasonable doubt,
      that: (1) the defendant 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. This overt act need not be
      committed by the defendant; it need only be committed by a co-
      conspirator.

Commonwealth v. Smith, 69 A.3d 259, 263 (Pa. Super. 2013) (citations

and internal quotation marks omitted). The evidence must establish more

than “mere suspicion or possibility of guilty collusion.” Commonwealth v.

Lambert, 795 A.2d 1010, 1016 (Pa. Super. 2002).

      With regard to accomplice liability, our Crimes Code provides, in

relevant part, as follows:

      § 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.

      (b) Conduct of another.—A person is legally accountable for
      the conduct of another person when:

                                    ****


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        (3)    he is an accomplice of such person in the
        commission of the offense.

     (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:

            (i)   solicits such other person to commit; or

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

     (d) Culpability of accomplice.—When causing a particular
     result is an element of an offense, an accomplice in the conduct
     causing such result is an accomplice in the commission of that
     offense, if he acts with the kind of culpability, if any, with
     respect to that result that is sufficient for the commission of the
     offense.

18 Pa.C.S. § 306; see Commonwealth v. Murphy, 844 A.2d 1228, 1234

(Pa. 2004) (“A person is deemed an accomplice of a principal if, with the

intent of promoting or facilitating the commission of the offense, he: (i)

solicited the principal to commit it; or (ii) aided or agreed or attempted to

aid such other person in planning or committing it.” (brackets and internal

quotation marks omitted)). “Only the least degree of concert or collusion in

the commission of the offense is sufficient to sustain a finding of

responsibility as an accomplice.     No agreement is required, only aid.”

Commonwealth v. Kimbrough, 872 A,2d 1244, 1251 (Pa. Super. 2005)

(internal quotation marks, citation, and brackets omitted).

     “The intent required for criminal conspiracy is identical to that required

for accomplice liability. In both [instances], a defendant must act with the

‘intent of promoting or facilitating the commission of the offense.’”

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Commonwealth v. Davenport, 452 A.2d 1058, 1062 (Pa. Super. 1982)

(quoting     Commonwealth         v.   Gardner,     371    A.2d    986,   989

(Pa. Super. 1977)).

     In proving a conspiracy, direct and positive testimony of the
     corrupt agreement is not necessary.           Commonwealth v.
     Tumminello,         437     A.2d    435   (Pa.    Super.    1981);
     Commonwealth v. Holman, 352 A.2d 159 (Pa. Super. 1975).
     This is so, for the unlawful agreement, which is at the heart of
     every conspiracy and the nexus which will invoke principles of
     vicarious liability, will rarely be proven by direct evidence of a
     formal agreement with precise terms. Indeed, the very nature
     of the crime of conspiracy makes it susceptible to proof usually
     by circumstantial evidence. Thus, the courts have traditionally
     looked to the relation, conduct, and circumstances of the parties
     and the overt acts of the co-conspirators in order to find a
     corrupt confederation. Commonwealth v. Dolfi, 396 A.2d 635
     (Pa. 1979); Commonwealth v. Waters, 345 A.2d 613
     (Pa. 1975); Tumminello, supra; Commonwealth v. Minnich,
     344 A.2d 525 (Pa. Super. 1975).          Additionally, it must be
     remembered that “[t]he fact that the evidence establishing a
     defendant’s participation in a crime is circumstantial does not
     preclude a conviction where the evidence coupled with the
     reasonable inferences drawn therefrom overcomes the
     presumption of innocence.” Commonwealth v. Lovette, 450
     A.2d 975, 977 (Pa. 1982) (citations omitted). Restated, the
     facts and circumstances need not be absolutely incompatible
     with [the] defendant’s innocence, but the question of any doubt
     is for the fact-finder unless the evidence “be so weak and
     inconclusive that as a matter of law no probability of fact can be
     drawn from the combined circumstances.” Commonwealth v.
     Libonati, 31 A.2d 95, 97 (Pa. 1943); accord Commonwealth
     v. Sullivan, 371 A.2d 468 (Pa. 1977).

     As this Court has stated recently:

           “Regardless of the type of proof advanced by the
           Commonwealth,      however,     proof  of     a    common
           understanding among the alleged co-conspirators is an
           indispensable element of the crime. Thus, the courts have
           held that mere association is not sufficient; . . . nor is
           mere presence at the scene of the crime sufficient to prove

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          the agreement without a showing that the accused had
          prior knowledge of his alleged co-conspirator’s criminal
          intent. Indeed, one’s knowledge that another proposes
          unlawful action will not establish a conspiracy . . . absent
          proof that the accused became an active partner in the
          criminal enterprise with knowledge of the agreement.”

     Commonwealth        v.    Lynch,    411   A.2d    1224,     1232
     (Pa. Super. 1979) (citations omitted; emphasis in original); see
     also Commonwealth v. Yobbagy, 188 A.2d 750 (Pa. 1963);
     Commonwealth v. Henderson, 378 A.2d 393 (Pa.
     Super. 1977).

Davenport, 452 A.2d at 1060-61 (citations modified). However, accomplice

liability and conspiracy differ insofar as “[c]onspiracy requires proof of an

additional factor [which] accomplice liability does not—the existence of an

agreement.”       Commonwealth v. McLendon, 874 A.2d 1223, 1229

(Pa. Super. 2005).

     While the intent requirement may be the same for conspiracy and

accomplice liability, the establishment of accomplice liability as to one

offense    does   not   necessarily   establish   such   liability   as   to   all

contemporaneous offenses: “After the passage of the Crimes Code, status

as an accomplice relative to some crimes within a larger criminal

undertaking or episode no longer per se renders a defendant liable as an

accomplice for all other crimes committed. Rather, closer, offense-specific

analysis of intent and conduct is required.” Commonwealth v. Knox, 105

A.3d 1194, 1197 (Pa. 2014) (footnote omitted). For example, in the instant

case, affirming Appellant’s adjudication on simple assault on an accomplice




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liability theory would not require us as a matter of law to affirm Appellant’s

adjudication of aggravated assault.

      Appellant argues as follows:

      Appellant was guilty of the deplorable and despicable conduct of
      taking pleasure in the bullying and victimization of another youth
      by laughing at it, and even worse, by taking a video recording of
      it for the perverse enjoyment of himself and others. However,
      the evidence presented to the court was insufficient to prove
      beyond a reasonable doubt that Appellant was guilty of
      conspiracy to commit the assault and robbery, and similarly was
      insufficient to prove beyond a reasonable doubt that Appellant
      was an accomplice to the commission of the attempted robbery
      and assault. That is, to be more precise, other than Appellant’s
      possible (though hardly definite) association with Codefendants
      and his mere presence at the scene of the attack on [Victim],
      the evidence was insufficient to prove beyond a reasonable
      doubt that Appellant entered into an agreement with
      Codefendants for them to assault and attempt to rob Victim, and
      insufficient to prove beyond a reasonable doubt that Appellant
      aided the assault and robbery. Thus, the court’s finding that
      Appellant was guilty of the delinquent acts with which he was
      charged necessarily was based on speculation by the court.

Brief for Appellant at 8.

      Because each crime stems from the initial decision to approach and

assault Victim in the first instance, we first must assess whether the

evidence was sufficient to establish that Appellant intended to “promot[e] or

facilitate[e] the commission of the offense.” Davenport, 452 A.2d at 1062.

Appellant directs our attention to several cases that establish various facets

of the above-stated legal standards.        See Brief for Appellant at 9-11.

However, none is entirely on-point and, while our research discloses

numerous cases involving alleged accomplices who presented as mere


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bystanders, we have not found a bystander case that involves the implied

prior knowledge and approval that Appellant’s act of recording the event

while laughing led the juvenile court to find in this case.     Indeed, that

Appellant began recording Codefendants before the first blow was struck

strongly suggests, at an absolute minimum, that Appellant anticipated the

imminent occurrence of a notable event. Thus, the question we face distills

further to the question whether this evidence that Appellant was familiar

with Codefendants and that he anticipated the occurrence of an event that

he deemed worth memorializing was sufficient to support the juvenile court’s

finding beyond a reasonable doubt that Appellant intended to promote or

facilitate the commission of the assault that followed shortly after he began

recording.

     At the close of the hearing, the juvenile court noted the defendants’

collective “ingenious decision to video tape and play for the world this

vicious and notorious attack of [sic] a man’s life.”    Notes of Testimony,

3/5/2014, at 46.   In so doing, the juvenile court appeared to accept the

Commonwealth’s argument to that effect:

     I would submit that the conspiracy here and the agreement
     between these three was to video tape themselves brutalizing
     another human being on the streets of Philadelphia.

     In order to do that, you need the muscle, and I would submit
     that that’s [Codefendants]. They provided the muscle. You’re
     going to need a camera man, and that is [Appellant], and you do
     have that here and also a sound track, and [Appellant] provided
     that.



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      Your honor saw the video tape and the camera was rolling before
      the first blow was landed. So, [Appellant] was already prepared
      to video something that he knew was going to happen. He had
      the camera rolling.”

Id. at 41-42.    In effect, the juvenile court found under these facts a

collective intention to document an assault and to share it with the public via

a video-sharing service or by another mode of dissemination.       Appellant’s

laughter during the course of Codefendants’ assault upon Victim provides

further circumstantial evidence of Appellant’s prior intent and expectations.

In Commonwealth v. Burton, in determining whether an assailant had the

requisite intent to sustain a conviction for aggravated assault when he

punched his victim only once in the head, we underscored the fact that,

despite visible evidence immediately after the blow that the victim had been

severely injured, the attacker stood over the victim “saying I got you, I got

you, I told you I was going to get you,” while laughing. 2 A.3d 598, 603

(Pa. Super. 2010) (en banc).

      This is a very close case, standing, as it does, astride the fuzzy

boundary between being a bystander who declines to participate in a

criminal activity of which one may not approve, but with which one has no

legal obligation to interfere, and being a full participant in a coordinated

effort to perpetrate an assault on an innocent victim not as assailant but as

documentarian.    Put simply, the evidence supported the juvenile court’s

inference that Appellant had prior knowledge that something worth recording

was afoot before it began. Furthermore, his decision to continue faithfully



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recording the events while laughing does little to suggest that he did not

anticipate and approve of what Codefendants were doing. Balancing these

considerations against our obligation to grant the Commonwealth the benefit

of all favorable evidence and inferences therefrom,4 we cannot conclude that

the trial record lacked sufficient evidence to establish beyond a reasonable

doubt that Appellant was complicit in promoting and/or facilitating the

assault.

       Our conclusion that the juvenile court had a sufficient basis to

conclude that the Commonwealth had established the requisite mens rea to

support a conviction for conspiracy and accomplice liability for the other

offenses does not conclude our inquiry. We still must assess the remaining

elements of conspiracy.          Insofar as any overt act committed by one
____________________________________________


4
      Interesting, Appellant comes very close to conceding the importance of
our standard of review to this case, albeit in an unavailing effort to spin the
several possible interpretations of the evidence as equally credible, and
hence inadequate to support a finding beyond a reasonable doubt:

       Of these three equally conceivable scenarios, the latter two did
       not constitute criminal behavior on the part of [Appellant]. And
       this Court—reviewing the evidence de novo, albeit . . . in the
       light most favorable to the Commonwealth—simply cannot
       conclude beyond a reasonable doubt that the first scenario
       occurred as opposed to the second or third scenarios.

See Brief for Appellant at 11-12. This argument is at odds with the time-
honored principle that “the facts and circumstances established by the
Commonwealth need not preclude every possibility of innocence.”
Commonwealth v. Dupre, 866 A.2d 1089, 1100 (Pa. Super. 2005)
(quoting Commonwealth v. DiStefano, 7782 A.2d 574, 582
(Pa. Super. 2001)).



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conspirator may be imputed to his coconspirators, there is no question that

that element is satisfied with regard to Appellant.         The assault itself

establishes that much.      The question then becomes whether the evidence

sufficed to establish that Appellant agreed with Codefendants that one or

more of them would engage in the underlying criminal conduct, or that he

agreed to aid one or more of Codefendants in the planning and commission

of the crime. See 18 Pa.C.S. § 903(a); Smith, supra. We conclude that the

evidence sufficed to establish either alternative element.    That Appellant’s

phone’s camera was running before the assault commenced suggested

planning and expectation, and that Appellant and Codefendant obviously

were working in concert in the moments before the assault further suggests

that they agreed that one or more of them would engage in the assaultive

conduct.      Accordingly, we find that the evidence was sufficient to sustain

Appellant’s conspiracy adjudication.

        With regard to accomplice liability, having found that the evidence

sufficed to establish the requisite mens rea, we are left with the question

whether the evidence sufficed to support the juvenile court’s finding beyond

a reasonable doubt that Appellant “aided or agreed or attempted to aid such

other person in planning or committing” the act. See Murphy, 844 A.2d at

1234.     For the reasons set forth above, we find that the evidence was

sufficient.

        As noted, supra, under Knox, establishing accomplice liability as to

one crime does not suffice, without more, to establish such liability as to all

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crimes.   However, Appellant offers nothing approaching argument, in the

alternative or otherwise, to the effect that, even if we affirmed accomplice

liability as to one or more of the adjudications, we should reverse as to one

or more of the remaining adjudications. Accordingly, any such argument is

waived.

     Dispositional order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2015




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