J-A13020-16

                             2016 PA Super 198



IN THE INTEREST OF: J.B.                       IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA




APPEAL OF: J.B.

                                                    No. 980 WDA 2015


         Appeal from the Dispositional Order Entered May 18, 2012
            In the Court of Common Pleas of Lawrence County
                   Juvenile Division at No: 113 of 2011


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

OPINION BY STABILE, J.:                        FILED SEPTEMBER 1, 2016

      Appellant, J.B., appeals from the May 18, 2012 order of disposition.

We affirm.

      This action arises from the February 20, 2009 murder of K.M.H. (the

“Victim”).   On that date, the Victim was engaged to and living with C.B.,

Appellant’s father, in a rented two-story farmhouse situated near wooded

areas and farmland in Wampum, Pennsylvania.        Appellant (then 11 years

old) and the Victim’s two daughters, J.H. (then age 7) and A.H. (then age 4)

also lived in the house. The Victim was eight months pregnant.

      A light snowfall covered the ground that morning. C.B. left for work at

6:45 a.m. and arrived around 7:00 a.m.           N.T. Adjudication Hearing,

4/11/2012 at 146-47. State police subsequently confirmed that C.B. was at

work during the commission of the crime and C.B.’s hands tested negative
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for gunshot residue. Id. at 63, 82, 138, 147. Police quickly eliminated C.B.

as a suspect.

     In preparation for their new baby, C.B. and the Victim were trading

bedrooms with Appellant. They were relocating their belongings from their

first floor bedroom to Appellant’s upstairs bedroom. The upstairs bedroom

adjoined a smaller bedroom the couple intended to use as a nursery.

Appellant was moving to the first floor bedroom. N.T. Adjudication Hearing,

4/10/2012 at 95, 108; N.T. Adjudication Hearing, 4/11/2012 at 68-69. On

the morning of the murder, Appellant had to go downstairs to get dressed

because his clothes had been moved to the first floor bedroom.           N.T.

Adjudication Hearing, 4/11/2012 at 68-69.

     Appellant gave    a   statement to     Trooper   Janice   Wilson, of the

Pennsylvania State Police, describing his actions on the morning of the

murder. Appellant said he awoke in the upstairs bedroom, retrieved clothes

from the downstairs bedroom, and dressed in a downstairs bathroom. Id. at

69. Once he was dressed and ready, Appellant and J.H. sat on the couch

watching television. Id. A.H. was still asleep. Id. at 66. Appellant heard

the Victim click her cell phone either open or shut, presumably to check the

time. Id. at 69-70. According to Appellant, the Victim told him and J.H. to

leave or they would miss the bus.   Id. at 70.    Appellant and J.H. left the

house at 8:13-8:14 a.m. Id. at 89. As Appellant traversed the driveway,

he noticed a large black truck parked by the garage. Id. at 65-66.


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     The school bus driver testified that Appellant and J.H. were about a

third of the way down the driveway as the bus approached, with Appellant

leading J.H. by about ten yards.    N.T. Adjudication Hearing, 4/10/2012 at

152. Normally, they were halfway or three quarters of the way down their

long driveway as the bus approached.       Id. at 151.    As the children ran

toward the bus, the driver did not observe either child stray from the

driveway or discard anything. Id. at 153-56. Appellant and J.H. took their

assigned seats and exhibited no unusual behavior. Id.

     Just after 9:00 a.m., a tree service crew arrived at the residence to

collect firewood purchased from the property owner. Id. at 13-14, 19, 150.

The driveway was the only way in or out of the property by vehicle. Id. at

42; N.T. Adjudication Hearing, 4/11/2012 at 147. The crew came in three

trucks, with Steven Cable’s truck in the lead.    N.T. Adjudication Hearing,

4/10/2012 at 14, 20. Cable, the owner of the tree service, observed a light

coating of snow on the driveway approximately 1/8 to 1/4 of an inch in

depth. Id. at 20. Cable did not observe any tire tracks in the driveway. Id.

at 17, 31. He did observe two sets of children’s footprints in the center of

the driveway.   Id. at 21-22, 38.    Shortly after the crew began its work,

Cable noticed a little girl (A.H.) at the door crying.   Id. at 23.   As Cable

approached, A.H. told him “her mother was dead.” Id. at 25. Cable was

unable to reach the property owner to get permission to enter the residence,




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so he called 911.   Id. at 25.   Cable remained at the door with A.H. until

police arrived. Id. at 26.

      Trooper   Harry   Gustafson   and   Corporal   Jeremy   Bowser   of   the

Pennsylvania State Police arrived at 10:13 a.m.       Id. at 43-46.    Trooper

Gustafson entered the house and observed the Victim lying on her left side

in a large pool of blood on the bed in the first-floor bedroom. Id. at 49, 71.

The cause of the injury was not immediately apparent, but the Victim was

obviously dead. Id. at 49-50. Trooper Gustafson immediately summoned

paramedics. While awaiting their arrival, Trooper Gustafson and his partner

took turns using a valve mask in an attempt to get air to the unborn baby.

Id.   While that effort was ongoing, Trooper Gustafson heard A.H. talking.

Id. at 59. Trooper Gustafson investigated and found A.H. talking on a cell

phone. Id. Trooper Gustafson asked A.H. for the phone and spoke to the

caller. Id. at 59-60. It was the Mohawk Elementary School nurse calling

the Victim to inform her that Appellant was ill and wanted to come home.

Id. at 59-60. Trooper Gustafson identified himself, explained that he was

investigating a serious situation, and asked the nurse to keep Appellant at

school until police could arrange for someone to pick him up. Id. at 60.

      The paramedics arrived at 10:40 a.m. Their examination revealed a

gunshot wound to the back of the Victim’s neck. Id. at 82, 85. Neither the

Victim nor her unborn child displayed any vital signs. Id. at 81. Paramedics




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notified the coroner’s office, and the Victim and her unborn child were

pronounced dead. Id. at 81.

       Corporal Andrew Pannelle of the Pennsylvania State Police Forensic

Services Unit testified that he arrived at the scene around noon, and, after

obtaining a search warrant, he examined the interior and exterior of the

residence. Id. at 89-90. As Corporal Pannelle did an initial walk through of

the residence for security purposes, he observed the Victim lying on the bed

in the first floor bedroom. Id.   He testified that he did not notice any signs

of forced entry or signs of a struggle in the residence. Id. at 93. Corporal

Pannelle did not notice any obvious evidence outside the residence. Id. at

96-97. Corporal Pannelle testified that all of the doors to the house were

unlocked. Id. at 124. He opened the doors to the armoire in the first floor

bedroom and found a gun safe on the bottom shelf, containing two

handguns and ammunition. Id. at 103. On the top shelf, he found a work

helmet and two boxes of shotgun shells—one opened and one closed. Id. at

104.   The open box contained sixteen unfired rounds of Federal Premium

Wing-Shok .20 gauge shotgun ammunition. Id. at 104-06.

       Sergeant Ken Markilinski, also of the Pennsylvania State Police,

accompanied Corporal Pannelle to examine the second floor of the residence.

They found six long guns in Appellant’s upstairs bedroom, partially covered

by an orange cloth. Id. at 108-109.      One of the guns, a Harrington and

Richardson youth model .20 gauge shotgun, smelled as if it had been freshly


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fired. Id. at 113, 130-131, 142. It had gunpowder residue in the breech.

Id. at 141.   Based on his personal experience as a hunter for over forty

years and as a twelve-year participant in a skeet shooting league, Sergeant

Markilinski testified that the odor and presence of residue indicated to him

that the weapon had been fired “within recent hours.” Id. at 141-142. The

odor of burnt gunpowder was “still pungent,” and Sergeant Markilinski was

able to wipe away some of the residue with his finger because the residue

did not have time to harden.     Id. at 142.   Sergeant Markilinski said it is

possible for the odor of burnt gunpowder to remain on a gun for up to a day.

Id. at 144.   The Commonwealth did not offer Sergeant Markilinski as an

expert witness. Id. at 144.

      Trooper Wilson attempted to speak with A.H. at the scene, but she

was in a state of shock and incapable of answering questions.            N.T.

Adjudication Hearing, 4/11/2012 at 60-61.      At approximately 12:00 p.m.,

Trooper Wilson went to Mohawk Elementary School to interview J.H. and

Appellant. Trooper Wilson testified that, during a ten-minute interview J.H.

“really didn’t have much to offer about what had happened that morning.”

Id. at 64.    J.H. was “very, very distraught” when Trooper Wilson first

arrived, but she calmed down when told she was not in trouble. Id. J.H.

and A.H. did not testify at the adjudication hearing.

      After J.H.’s interview, Trooper Wilson interviewed Appellant in a

conference room in the presence of the school guidance counselor.         Id.


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Appellant had been sleeping in the nurses office, but he was responsive

during the interview.     Id. at 65.    Trooper Wilson, without informing

Appellant of the death of the Victim, asked him who was at the residence

that morning. Appellant stated that the Victim, J.H., and A.H. were the only

other persons present after C.B. left for work.   Id. at 65-66.   Appellant

stated that that A.H. was still asleep when he and J.H. left for school. Id.

Appellant also saw a “black, large pickup truck parked back by the garage”

as he was walking down the driveway to catch the school bus. Id. at 66.

When Trooper Wilson asked for more details about the black truck,

Appellant said he did not know if it was running, and he did not see anyone

inside.   Id.   Appellant said the truck was the same kind as the property

owner and another man used when they came to feed cows. Id. at 66-67.

Appellant also described his own actions that morning, as we have already

set forth above.

      The night before the murder, Adam Harvey, the Victim’s ex-boyfriend,

was escorted out of a nightclub after having a verbal altercation with the

Victim’s parents. Id. at 126. He testified that he subsequently went back to

his parents’ house, where he was living in the basement.     Id. at 211-12

Harvey claimed he remained at his parents’ house through the following

morning. Id. at 133, 212.

      At the time of the murder, Harvey had an enforceable Protection From

Abuse (“PFA”) order against him, naming the Victim and her family


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(including her parents, sister, and brother-in-law) as persons to be

protected.   Id. at 131, 205.     The PFA, enforceable from March 2008 to

March 2011, was entered after Harvey allegedly threatened to kill the Victim

and her family. Id. at 200, 202, 204. Although Harvey did not appear in

court to contest the PFA, he testified at the adjudication hearing that the

allegations were false. Id. at 200-06. The Victim had previously filed a PFA

petition against Harvey in 2006, after he allegedly abused and threatened to

have her killed.    Id. at 194.     Harvey denied those allegations at the

adjudication hearing. Id. at 195-96. In early 2009, a DNA test confirmed

that Harvey was not A.H.’s father. Id. at 127, 206. Harvey testified that he

was prepared for that result and was only “a little bit” upset about it. Id. at

207.   Harvey knew the Victim lived somewhere in Wampum, but denied

knowing the location of the Victim’s house. Id. at 210.

       At 1:20 p.m. on the day of the murder, Pennsylvania State Police

Trooper Dominick Caimona found Harvey in his black Ford F-150 pickup

truck at an intersection approximately two blocks from Harvey’s parents’

house. Id. at 131, 189, 221-22. This intersection was approximately eight

to ten miles from the Victim’s house. Id. at 223. Trooper Caimona testified

that the snow on the hood and roof of the truck would not have remained

had Harvey driven it to Wampum and back.               Id. at 223.     Harvey

accompanied Trooper Caimona to the police station. Harvey’s hands tested

negative for gunshot residue, and a search of his truck produced no


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incriminating evidence. Id. at 132, 137. Based on his alibi, the snow on his

black truck, and the absence of other incriminating evidence, police

eliminated Harvey as a suspect.

      At 10:00 p.m. on the day of the murder, Trooper Wilson interviewed

Appellant a second time, this time in the presence of C.B. Id. at 72. Before

the interview commenced, C.B. told Appellant something bad had happened

to the Victim and that she was in heaven.          Id.   Appellant cried for

approximately thirty seconds, but did not ask questions.      Id.    After he

stopped crying, Wilson asked Appellant for more details about the truck he

had seen that morning. Id. at 73. Appellant stated that after leaving the

house, he checked his pocket for ice cream money and accidentally dropped

a piece of fuzz onto the ground. Id. After bending down to pick up the fuzz,

he saw the truck. Id. Appellant said he told J.H. about the truck, but he did

not think she heard him because she was too far down the driveway ahead

of him. Id. at 74. Appellant also stated that he saw a person wearing a

white hat “ducking over” inside the truck, and that the lights were “sort of

half on.”   Id. at 75.   Appellant did not mention these observations in his

initial interview with Trooper Wilson. Id. at 76. Trooper Wilson confirmed

that a man who tends the cattle on the farmland adjacent to the house

drives a large dark truck. Id. at 100. Trooper Wilson also asked Appellant if

he had any guns, and Appellant replied that he had a .30-30.        Id. at 76.

Trooper Wilson asked Appellant if he had a shotgun. Appellant said that he


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had a .20 gauge and volunteered that he only shot it outside. Id. at 76-77,

101. Trooper Wilson asked Appellant if he fired his .20 gauge that morning.

He said “no,” hesitated, and then said “no” again. Id. at 78.

      On February 21, 2009 at 3:30 a.m., police arrested Appellant and

charged him with two counts of criminal homicide.          N.T. Adjudication

Hearing, 4/10/2012 at 217. At the time of the arrest, police collected the

shirt, jeans, tennis shoes, and winter coat Appellant wore on the day of the

murder.     Id. at 217-218.    Later that day, Sergeant Daniel Brooks of the

Pennsylvania State Police searched the exterior of the residence for shotgun

shells or other potential evidence. Id. at 195, 207. In addition to two rusty

shell casings in the yard found by other officers, Brooks found a spent

“Federal 20-gauge No. 6 shot” shell casing in “pristine” condition by a fence

along the side of the driveway. Id. at 195-96, 201. Sergeant Brooks found

the shell approximately 100 feet from the house, closer to the house than

the road.     Id. at 196-97.    The pristine shell—found amongst some icy

leaves—was near the top third of the driveway, approximately 100 yards

from the residence. Id. at 196-97, 202, 210.

      Trooper David Burlingame, a certified firearm examiner, inspected

Appellant’s .20 gauge shotgun, the pristine shotgun shell, and the twenty-

seven shotgun pellets and pieces of wadding recovered from the body of the

Victim.     N.T. Adjudication Hearing, 4/11/2012 at 30-31, 36.        Trooper

Burlingame testified that the .20 gauge was functional.         Id. at 38-40.


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Trooper Burlingame used Appellant’s shotgun to test-fire one of the unspent

.20 gauge shells found in the armoire, and he compared the test-fired shell

with the pristine shell recovered near the driveway.    Id. at 42-43.    The

markings on the two shells were identical, leading Trooper Burlingame to

conclude that the pristine shell had been fired from the Appellant’s .20

gauge shotgun. Id. at 44. Trooper Burlingame compared the twenty-seven

shotgun pellets and pieces of wadding recovered from the Victim’s body to

pellets and wadding in one of the unspent .20 gauge shells recovered from

the armoire. The size, shape, weight, and construction details of the pellets

in the unspent shell were consistent with the pellets removed from the

Victim’s body. Id. at 44-45. The wadding also was consistent with wadding

retrieved from the victim’s body. Id.

     Forensic expert Elana Somple examined Appellant’s clothing for

gunshot residue. She explained that when a firearm discharges, the firing

pin strikes the primer cap of the ammunition, causing the primer

components within—lead, barium, and antimony—to ignite. Id. at 8. The

vaporized lead, barium, and antimony solidify and form particulate, some of

which lands on the hands and clothing of the person who discharged the

firearm.   Id. at 9.   Particulate with all three components fused together

conclusively establishes the presence of gunshot residue.       Id. at 8-9.

Particulate with two of the three components is considered to be consistent

with gunshot residue. Id. at 10. One-and two-component particles could


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come from a gunshot or from other sources. Id. Gunshot residue can get

on clothing when the wearer discharges a firearm or stands in close

proximity to a person discharging a firearm. Id. at 10, 12, 21. In addition,

clothing can have gunshot residue on it if it comes into contact with another

object that has gunshot residue on it. Id. Somple said that gunshot residue

has a lasting presence on clothing if the clothing is not disturbed. Id. at 23.

Somple also said she would expect to find more gunshot residue on someone

who discharged a firearm indoors than someone who discharged a firearm

outdoors. Id. at 28.

      Somple tested Appellant’s shirt and pants and found one conclusive

particle of gunshot residue on the right front side of the shirt and one

conclusive particle on the left leg of his jeans.           Id. at 15, 17-18.

Additionally, she found 14 two-component particles and at least 14 one-

component particles on the right front side of the shirt. Id. at 15. Somple

found 17 two-component particles and at least 15 one-component particles

on the left front side of the shirt.    Id.     Somple found six two-component

particles and at least 29 one-component particles on the right leg of the

jeans. Id. at 18. Somple found 11 two-component particles and at least 29

one-component particles, in addition to the one conclusive particle of

gunshot residue, on the left leg of the jeans. Id.

      Corporal Jeffrey Martin testified that Appellant’s clothing tested

negative for the presence of blood stains and that no DNA or fingerprints


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were found on the spent shotgun shell. Id. at 121, 123-24. Forensic testing

revealed no latent fingerprints or blood on the shotgun. Id. at 122-23.

     Forensic pathologist Dr. James Smith performed the Victim’s autopsy.

N.T. Adjudication Hearing, 4/10/2012 at 157.         The only trauma on the

Victim’s body was a single gunshot wound to the back of her neck. Id. at

160. The wound was produced by a shotgun. Id. at 161. Dr. Smith opined

that the shotgun was within a few inches of or touching the Victim’s neck

when fired. Id. at 185. When asked whether “blowback”—blood or tissue

traveling from the Victim to the shotgun barrel—occurred, Dr. Smith said

blowback was possible but the angle at which the blast occurred would have

minimized the amount.      Id. at 170-72, 186-190.        Asked if he would

“necessarily expect to find blood or tissue on the barrel of the gun,” Dr.

Smith said “[n]ot necessarily, no.” Id. at 170-71.

     C.B. testified that he, the Victim, Appellant, and the Victim’s daughters

had a close relationship. N.T. Adjudication Hearing, 4/11/2012 at 140, 141.

According to C.B., Appellant’s relationship with the Victim was “[j]ust as

normal as it was between her and her own daughters.” Id. C.B. explained

that he and Appellant frequently shot guns in front of the house, near where

Cable and his work crew parked on the morning of February 20, 2009. Id.

at 142. The week before the murder, C.B. and Appellant participated in a

turkey shoot at which Appellant wore the winter coat seized after his arrest.




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Id. at 143, 146. Appellant used the .20 gauge shotgun in the turkey shoot,

but C.B. loaded it and unloaded it for him. Id. at 145.

       When asked about potential suspects, C.B. told police he believed

Harvey would kill the Victim Id. at 148. C.B. testified that he had listened

to ten to twelve voicemails Harvey left on the Victim’s cell phone, in which

Harvey threatened the Victim and her family. Id. at 149. C.B. further noted

that the Victim feared Harvey, and that he and the Victim had an unlisted

phone number in order to prevent Harvey from contacting them.           Id. at

148-49, 177.

       Appellant’s adjudication hearing commenced on April 10, 2012.        On

April 13, 2012, the juvenile court adjudicated Appellant delinquent on counts

of homicide and homicide of an unborn child.1          At the conclusion of a

dispositional hearing held on May 18, 2012, the juvenile court committed

Appellant to a secured residential treatment facility. Appellant did not file a

post-dispositional motion.         Instead, he filed a timely appeal from the

dispositional order.

       On May 8, 2013, this Court vacated the dispositional order, finding

merit in Appellant’s argument that the juvenile court’s verdict was contrary

to the weight of the evidence because the juvenile court’s adjudication of

delinquency rested in large part on findings of fact not supported in the

____________________________________________


1
    18 Pa.C.S.A. §§ 2501(a) and 2603(a), respectively.



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record. In re J.B., 69 A.3d 268, 282 (Pa. Super. 2013), vacated, 106 A.3d

76 (Pa. 2014).     Specifically, we found no record support for the juvenile

court’s factual findings in support of its conclusion that no one entered the

residence between Appellant and J.H.’s departure and the arrival of state

police.     Id. at 278-81.   Prior to addressing the merits, we concluded

Appellant’s failure to file a post-dispositional motion did not result in waiver

of his challenge to the weight of the evidence. Id. at 274-77.

      On December 15, 2014, our Supreme Court vacated this Court’s

decision.     In re J.B., 106 A.3d 76 (Pa. 2014).         The Supreme Court

concluded a post-dispositional motion was necessary to preserve Appellant’s

challenge to the weight of the evidence, and remanded to the juvenile court

to permit Appellant to file a post-dispositional motion nunc pro tunc. Id. at

98-99. On January 16, 2015, Appellant filed a motion challenging both the

sufficiency and weight of the evidence in support of Appellant’s conviction.

The juvenile court permitted the parties to file briefs, and the court

conducted a hearing on the motion on March 15, 2015. The juvenile court

denied Appellant’s motion on May 19, 2015. This timely appeal followed.

      Appellant presents three questions for review:

      1.      Did the juvenile court err in finding that the evidence
              adduced at trial, when viewed in the light most favorable
              to the Commonwealth as the verdict winner, was sufficient
              to establish beyond a reasonable doubt that Appellant J.B.
              committed the crimes in question?

      2.      Did the juvenile court commit a palpable abuse of
              discretion in finding that Appellant J.B. committed the

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            crimes in question when the verdict was against the weight
            of the evidence introduced at trial?

      3.    Did the juvenile court err in making redeterminations of
            facts and reevaluating the credibility of witnesses in
            denying Appellant J.B.’s motion for post-dispositional
            relief?

Appellant’s Brief at 7. We will address these arguments in turn.

      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 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.

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

banc).

      Criminal   homicide   occurs    where   the   defendant   “intentionally,

knowingly, recklessly or negligently causes the death of another human

being.”    18 Pa.C.S.A. § 2501(a).     The parties do not dispute that the


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perpetrator intentionally caused the death of the Victim. The sole matter in

dispute is whether Appellant was the perpetrator. Appellant argues (1) the

juvenile court erred in finding that no one entered the residence in between

Appellant’s departure and the arrival of the investigating police officers; (2)

the juvenile court erred in finding that the .20 gauge youth-model shotgun

was the murder weapon; (3) the gunshot residue on Appellant’s clothing

does not prove Appellant fired his .20 gauge shotgun on the morning in

question; and (4) the record contains no other evidence that Appellant

handled the shotgun on the morning in question. Appellant’s Brief at 16-30.

      In the first of his sufficiency of the evidence challenges, Appellant

relies on this Court’s basis for vacating the dispositional order.      In that

opinion, we explained:

            In its written opinion, the juvenile court made clear that its
      decision depended in substantial part on its finding that
      [Appellant], his two step-sisters (J.H. and A.H.), and K.M.H.
      were the only people inside the residence on the morning of
      February 20, 2009, and that the evidence demonstrated that no
      other person entered the residence after the departure of
      [Appellant] and his seven-year-old sister and prior to the arrival
      of the Pennsylvania State Police. In its written opinion, the
      juvenile court found that ‘[t]he only imprints observed in the
      snow on that morning were the children’s footprints leading from
      the house to the bus stop,’ from which the juvenile court
      concluded that ‘[t]here is no indication that another person
      approached the residence, either by foot or in a vehicle after the
      children left and before [Cable] arrived with his employees.’
      Juvenile Court Opinion, 4/20/12, at 14. The juvenile court
      emphasized this point again, stating on the next page of its
      opinion that, in addition to forensic evidence, it ‘especially
      considers the absence of any unaccounted for foot prints or tire
      tracks around the home, the time period after the arrival of


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      [Cable] and the tree service employees, during which no one
      was seen approaching or leaving the residence....’ Id. at 15.

J.B., 69 A.3d at 278–79. We found the juvenile court’s findings unsupported

because “[n]o witness (including any of the police officers first arriving on

the scene) testified to observing an absence of footprints on the property

that morning.” Id. at 280.

      In its post-remand opinion, the juvenile court no longer relies on the

absence of evidence that any unidentified individual entered the residence.

Juvenile Court Opinion, 7/29/15, at 5 (“In evaluating [Appellant’s] post-trial

motion, the court carefully reevaluated its own findings, and specifically

excluded all conclusions that the Superior Court determined to be improperly

made.”).     Rather,   the   court   emphasized   other   evidence   implicating

Appellant:

            The testimony established that [Appellant] lived with the
      Victim. N.T. April 11, 2012, at 61-62. [Appellant] owned the
      Harrington and Richardson .20 gauge youth shotgun that was
      established to be the murder weapon. N.T. April 11, 2012, at
      77-78. The Harrington and Richardson .20 gauge youth shotgun
      was discovered in [Appellant’s] upstairs bedroom immediately
      after the crime, which smelled as if it had been recently fired.
      N.T. April 10, 2012, at 89, 111-114, 142. [C.B.] stated that all
      of the guns, including the Harrington and Richardson .20 gauge
      youth shotgun, were normally located in the bedroom he shared
      with the Victim. N.T. April 11, 2012, at 167. He elaborated that
      the guns were stored in a cubbyhole. Id. Only a day or two
      prior to the Victim’s murder, the guns were moved upstairs by
      [Appellant] and J.H.      Id. at p. 168.       [C.B.’s] testimony
      established that even he did not know the guns were moved to
      another location in the residence prior to his fiancé’s death. Id.
      at 167-169. From this testimony, the court infers that a limited
      group of people had knowledge of the murder weapon’s location:
      the Victim, J.H. and [Appellant]. Additionally, [Appellant] had

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      access to the shotgun shells, as they were located in the Victim’s
      bedroom, N.T. April 10, 2012, at 103-104, where [Appellant]
      had to go on the morning of the crime to retrieve his clothing.
      N.T. April 11, 2012, at 68-70. [C.B.] stated he had been
      teaching [Appellant] about gun safety, which included
      ‘instructing [Appellant] on how to properly load and unload a
      gun.’ N.T. April 11, 2012, at 143. [Appellant] knew how to fire
      a shotgun.

             Forensic evidence established that [Appellant] had one
      gunshot residue particle and fourteen particles consistent with
      gunshot residue on the right side of his shirt. N.T. April [11],
      2012, at 15. 18. On the left side of [Appellant’s] jeans forensic
      experts found seventeen particles consistent with gunshot
      residue and fifteen particles consistent with any one of the three
      particles comprising gunshot residue. Id. at 15. The particles
      on [Appellant’s] clothing correspond and are consistent in
      location with firing a shotgun. N.T. April [11], 2012, at 18. The
      shirt and jeans tested were the same articles of clothing
      [Appellant] was wearing when he left for school on February 20,
      2009, and when he was later interviewed by Trooper Wilson.
      N.T. April 11, 2012, at 78-79. The Commonwealth established
      that one pristine shotgun shell was retrieved outside the
      residence along the drive near an adjacent fence line. N.T. April
      10, 2012, at 195, 199. As opposed to two other rusted shotgun
      shells found outside the residence, this shell was apparently
      pristine and new. N.T. April 10, 2012, at 201. The fence line,
      along which the pristine shell was found, ran parallel to the
      driveway utilized by [Appellant] when walking to the bus stop.
      N.T. April 10, 2012, at 151-152. [Appellant] used this route on
      the morning of the crime.        Id.    These facts support the
      Commonwealth’s argument that [Appellant] had the ability to
      discard the shotgun shell as he walked to the bus stop on the
      morning of February 20, 2009.

Juvenile Court Opinion, 5/19/15, at 39-41.

      Concerning the possibility of an unidentified perpetrator murdering the

Victim after Appellant and J.H. left for school, the juvenile court reasoned as

follows:




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            The court’s summary set forth above obviously establishes
      that there is an unaccounted for period of time, being the time
      between when the children left for school at 8:12 a.m. and when
      Mr. Cable and his crew arrived at 9:00 a.m. In order to impose
      fault on some unaccounted individual, the court would have to
      find that this person was able to enter the Victim’s residence
      without disturbing any of the contents, the Victim or [A.H.], and
      retrieve the Harrington and Richardson .20 gauge youth shotgun
      from [Appellant’s] bedroom along with the ammunition from the
      Victim’s bedroom. After murdering the Victim, the gun would be
      replaced and the shotgun shell discarded along the driveway.
      This hypothetical characterization of the evidence is an
      unrealistic portrayal of the events[.]

Id. at 47.

      In summary, the juvenile court did not rely on the absence of evidence

of an unidentified assailant.   The court’s May 19, 2015 opinion relies on

circumstantial evidence implicating Appellant.   The court’s July 29, 2015

opinion expressly disavowed any reliance on findings this Court deemed

lacking in record support.

      The May 19, 2015 opinion relies on facts supported in the record.

Police believed Appellant’s .20 gauge shotgun smelled freshly fired.

Appellant denied having recently fired the .20 gauge shotgun.             Police

recovered a pristine shell under some leaves and ice near the driveway—

which Appellant traversed on his way to the school bus on the morning of

the murder.    Forensic testing confirmed the pristine shell was fired from

Appellant’s shotgun.   The record also confirms that Appellant’s .20 gauge

shotgun was moved to the upstairs bedroom only days before the murder,

and that only Appellant, J.H., and the Victim knew the gun’s location. The



                                    - 20 -
J-A13020-16


.20 gauge ammunition remained downstairs in an armoire in the Victim’s

bedroom. Based on these facts, the juvenile court found it unrealistic that

an   unidentified   assailant   could   have     entered   the   residence,   located

Appellant’s shotgun upstairs, located the ammunition in the armoire

downstairs, murdered the Victim, replaced the shotgun upstairs, discarded

the shell by the driveway, and left undetected. The juvenile court did not

rely on the absence of any footprints or other evidence indicating the

presence of a third party. The court found that the circumstantial evidence

implicating Appellant also       excludes    any reasonable       possibility of an

unidentified assailant.   We therefore reject Appellant’s argument that the

juvenile court relied on the absence of evidence that an unidentified

assailant entered the house.

      Next, Appellant argues that the trial court erred in finding that

Appellant’s shotgun was the murder weapon.             Appellant notes, correctly,

that Appellant and C.B. commonly shot guns near the residence.                 Thus,

Appellant believes that the pristine shotgun shell recovered near the

driveway is not noteworthy, especially since it could not be determined

precisely how long the shell was there. Appellant concedes that the pellets

retrieved from the Victim’s body were consistent with the pellets from an

unfired .20 gauge shell retrieved from the armoire, but argues that mere

consistency of the pellets is insufficient to prove Appellant’s shotgun was the

murder weapon.      Appellant also notes the absence of blood on or in the


                                        - 21 -
J-A13020-16


shotgun’s barrel, despite evidence that the barrel was close to or touching

the Victim’s neck when it was discharged.     As explained above, Dr. Smith

testified that the angle of the gun would have minimized blowback, i.e. blood

or tissue attaching to the shotgun barrel.    Appellant nonetheless contends

that forensic analysis would have retrieved at least a minimal amount of

blood or tissue on the shotgun barrel if it was the murder weapon. Likewise,

Appellant believes the juvenile court erred because forensic analysis

retrieved no fingerprints from the gun. Finally, Appellant notes that police

could not testify with certainty how recently the shotgun had been fired.

      Under the governing standard of review, which requires us to view the

evidence in a light most favorable to the Commonwealth as verdict winner,

we make the following observations.          The record demonstrates that

Appellant’s .20 gauge shotgun—which had been recently moved and whose

location was known only to Appellant, J.H. and possibly the Victim—was

recently fired. Police located a pristine shell fired from Appellant’s shotgun

under leaves and ice along the driveway.          It is impossible to prove

conclusively that the pellets retrieved from the Victim were fired from the

pristine spent shell.   The record confirms, however, that the pellets and

wadding retrieved from the Victim’s wound were consistent with pellets and

wadding from an unfired .20 gauge shell retrieved from the box of

ammunition in the Victim’s bedroom.          As for the absence of forensic

evidence, the record establishes that blowback was possible, but that it


                                    - 22 -
J-A13020-16


would not necessarily occur because of the position of the gun barrel relative

to the Victim’s neck.    This evidence does not command a finding that

minimal blowback occurred. Furthermore, the absence of fingerprints on the

gun supports a reasonable inference that the assailant wiped it clean. The

presence of Appellant’s fingerprints on his own shotgun would have been

unsurprising and not necessarily incriminating.       The total absence of

fingerprints renders the gun suspicious, especially since it smelled as if it

had been recently fired. Viewing the evidence in a light most favorable to

the Commonwealth, we conclude the record supports the juvenile court’s

finding that Appellant’s shotgun was the murder weapon.

      Appellant also argues that the presence of gunshot residue on the

clothing he wore on the day of the murder does not prove he fired a gun

that morning. As explained above, the Commonwealth confiscated the coat,

shirt, and jeans Appellant wore on the day of the murder. Appellant wore

the coat to a turkey shoot the week before. Appellant relies on Somple, who

testified that gunshot residue can transfer from one item to another on

contact. The expert also testified that residue could remain on clothing for

long periods of time if left undisturbed. The import of Appellant’s argument

is that the residue on Appellant’s shirt and jeans could have transferred from

the coat he wore to the turkey shoot.

      As noted above, Appellant had conclusive three-component particles of

gunshot residue on the right front side of his shirt and the left leg of his


                                    - 23 -
J-A13020-16


jeans. Appellant had one- and two-component particles on both sides of his

shirt and both legs of his jeans.         The juvenile court found it unlikely that

gunshot residue from Appellant’s coat—assuming the coat still had residue

from the turkey shoot the week before—would transfer to an inner layer of

clothing. Id. at 47-48. We find the juvenile court’s finding reasonable and

supported by the evidence.2

       In summary, we have considered and rejected Appellant’s arguments

that the evidence was insufficient. We conclude that the record, viewed in a

light most favorable to the Commonwealth as verdict winner, supports the

juvenile court’s findings of fact.             Viewed in that light, the record also

supports the juvenile court’s conclusion that Appellant was the perpetrator.

       Next, we consider Appellant’s weight of the evidence argument.            As

explained above, our Supreme Court remanded this matter to the juvenile

court so that Appellant could present this issue in a post-dispositional
____________________________________________


2
    The juvenile court also opined that the location of the residue on
Appellant’s clothing was consistent with firing a shotgun while wearing those
clothes.   Juvenile Court Opinion, 5/19/15, at 40-41.        The court cited
Somple’s testimony. Our review of Somple’s testimony confirms only that
she sampled the front side of Appellant’s shirt (her testimony is not specific
as to whether she sampled the front or back of the jeans). N.T. Adjudication
Hearing, 4/11/2012, at 17. Somple did not testify that the location of the
residue on the clothing was consistent with the wearer having fired a
shotgun.    The juvenile court presumably reached that finding because
residue was on the front of Appellant’s shirt. The court’s finding is not
unreasonable, but we need not rely on it to support our decision. As we
explained in the main text, the record supports the juvenile court’s finding
that gunshot residue would not likely transfer from an outer layer of clothing
to jeans or a shirt.



                                          - 24 -
J-A13020-16


motion.   Appellant did so, and the juvenile court denied relief.    We must

discern whether the juvenile court abused its discretion:

             Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. Because the
      trial judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court’s determination that the verdict is against
      the weight of the evidence. One of the least assailable reasons
      for granting or denying a new trial is the lower court’s conviction
      that the verdict was or was not against the weight of the
      evidence and that a new trial should be granted in the interest of
      justice.

             However, the exercise of discretion by the trial court in
      granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is not unfettered. The
      propriety of the exercise of discretion in such an instance may be
      assessed by the appellate process when it is apparent that there
      was an abuse of that discretion. This court summarized the
      limits of discretion as follows:

            The term ‘discretion’ imports the exercise of judgment,
      wisdom and skill so as to reach a dispassionate conclusion,
      within the framework of the law, and is not exercised for the
      purpose of giving effect to the will of the judge. Discretion must
      be exercised on the foundation of reason, as opposed to
      prejudice, personal motivations, caprice or arbitrary actions.
      Discretion is abused when the course pursued represents not
      merely an error of judgment, but where the judgment is
      manifestly unreasonable or where the law is not applied or
      where the record shows that the action is a result of partiality,
      prejudice, bias or ill will.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000).

      A challenge to the weight of the evidence is distinct from a challenge

to the sufficiency of the evidence in that the former concedes that the

Commonwealth has produced sufficient evidence of each element of the


                                    - 25 -
J-A13020-16


crime, “but questions which evidence is to be believed.” Commonwealth v.

Charlton, 902 A.2d 554, 561 (Pa. Super. 2006), appeal denied, 911 A.2d

933 (Pa. 2006).    “A new trial should not be granted because of a mere

conflict in the testimony or because the judge on the same facts would have

arrived at a different conclusion.” Commonwealth v. Clay, 64 A.3d 1049,

1055 (Pa. 2013).    “Rather, the role of the trial judge is to determine that

notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.” Id. (citation omitted).   “It has often been stated that a new trial

should be awarded when the jury’s verdict is so contrary to the evidence as

to shock one’s sense of justice and the award of a new trial is imperative so

that right may be given another opportunity to prevail.” Id.

      The Supreme Court has provided the following guidance for an

appellate court’s review of the record when the appellant challenges the

weight of the evidence:

             In reviewing the entire record to determine the propriety
      of a new trial, an appellate court must first determine whether
      the trial judge’s reasons and factual basis can be supported.
      Unless there are facts and inferences of record that disclose a
      palpable abuse of discretion, the trial judge’s reasons should
      prevail. It is not the place of an appellate court to invade the
      trial judge's discretion any more than a trial judge may invade
      the province of a jury, unless both or either have palpably
      abused their function.

            To determine whether a trial court’s decision constituted a
      palpable abuse of discretion, an appellate court must examine
      the record and assess the weight of the evidence; not however,
      as the trial judge, to determine whether the preponderance of

                                     - 26 -
J-A13020-16


     the evidence opposes the verdict, but rather to determine
     whether the court below in so finding plainly exceeded the limits
     of judicial discretion and invaded the exclusive domain of the
     jury. Where the record adequately supports the trial court, the
     trial court has acted within the limits of its judicial discretion.

Id. at 1056.

     Appellant’s   weight   of    the    evidence    argument   spans   only   two

paragraphs in his brief.         Appellant’s Brief at 31-32.       In those two

paragraphs, he simply asserts that the findings he challenged in his

sufficiency of the evidence argument lack record support and, therefore, the

adjudication of delinquency is contrary to the weight of the evidence. We

already have set forth a detailed review of the record and explained our

reasons for concluding that the record supports the juvenile court’s findings.

For the reasons we explained in addressing Appellant’s challenge to the

sufficiency of the evidence, we cannot conclude that the juvenile court’s

adjudication is so contrary to the evidence as to shock our sense of justice.

See Clay, 64 A.3d at 1055.

     We are cognizant that Appellant was only 11 years old at the time of

the murder. In adjudicating Appellant delinquent, the juvenile court found

that Appellant was able to murder the Victim and replace and wipe clean his

shotgun while J.H. and A.H. were in the house, then discard the spent shell

on his way to the school bus with J.H.           The school bus driver noticed no

unusual behavior from either child. The record is silent on whether or how

Appellant explained the shotgun blast to the Victim’s two young daughters.



                                        - 27 -
J-A13020-16


The record also is silent on whether or how Appellant kept J.H. and A.H. out

of the Victim’s bedroom before he and J.H. left for school.        No evidence

reveals whether J.H. was aware of her mother’s death before she left for

school. We do not envy the juvenile court’s difficult task of deciding whether

an 11-year-old child was capable of such a gruesome and calculated crime.

However, under the standards governing appellate court review of weight

and sufficiency of the evidence challenges, we discern no reversible error in

the juvenile court’s decision.

      In Appellant’s third and final argument, he asserts the juvenile court

improperly reassessed the credibility of several witnesses.      “Following the

rendering of a verdict, the trial court is limited to rectifying trial errors and

cannot make redeterminations concerning credibility and the weight of the

evidence.” Commonwealth v. Melechio, 658 A.2d 1385, 1389 (Pa. Super.

1995). Recently, this Court explained:

             [A] post-verdict court may not reweigh the evidence and
      change its mind as the trial court did herein. Although a post-
      verdict judge may question a verdict, his discretionary powers
      are limited to a determination of whether the evidence was
      sufficient to uphold the original verdict, and he may not alter the
      original verdict and substitute a new one. Commonwealth v.
      Rawles, 501 Pa. 514, 462 A.2d 619 (1983). The trial court’s
      verdict must be accorded the same legal effect as a jury verdict.
      Commonwealth v. Meadows, 471 Pa. 201, 369 A.2d 1266,
      1268 n. 5 (1977). Post-trial, the court cannot re-deliberate as it
      is no longer the fact finder. Just as jurors are not permitted to
      testify as to the mental processes that led to their verdict, so is
      the trial court precluded from testifying as to its flawed thought
      process as a fact finder.




                                     - 28 -
J-A13020-16


Commonwealth v. Robinson, 33 A.3d 89, 94 (Pa. Super. 2011), appeal

denied, 42 A.3d 292 (Pa. 2012).

      This doctrine prohibits a trial court from altering its verdict.      In

Robinson, the trial court found the defendant guilty and then sua sponte

issued a not guilty verdict because, according to the trial court, it failed to

consider and weigh character evidence favoring the defendant. Id. at 91.

Likewise, in Melechio, the trial court found the defendant guilty of third-

degree murder after trial, and subsequently vacated the convictions because

it did not credit the testimony of a significant witness against the defendant.

Melechio, 658 A.2d at 1387.

      Appellant also cites Commonwealth v. Parker, 451 A.2d 767, (Pa.

Super. 1982), in which the trial court sua sponte changed its guilty verdicts

to not guilty two weeks after the original verdicts were entered and recorded

on the docket.   In its order, the trial court noted that it reconsidered the

facts. Id. at 768-69. We held that a trial court could not change a guilty

verdict to not guilty based on reconsideration of the facts. Id. at 769.

      The foregoing case law is inapplicable because the juvenile court did

not alter its adjudication.   Furthermore, all of the reasoning the juvenile

court offered in its May 19, 2015 post-remand opinion is consistent with its

original adjudication of delinquency. Appellant offers four specific instances

of allegedly improper reassessment of facts.    First, he argues the juvenile

court improperly reassessed facts in finding it unlikely that an unidentified


                                    - 29 -
J-A13020-16


intruder could have located Appellant’s shotgun, used it to commit the

murder, and replaced it in the upstairs bedroom. It is true that the juvenile

court did not previously offer this reasoning in support of its adjudication. In

employing that reasoning, the trial court relied on its findings that

Appellant’s .20 gauge shotgun was the murder weapon, that the shotgun

was moved upstairs to Appellant’s bedroom days before the murder, and

that only Appellant, J.H. and the Victim knew the shotgun’s location on the

morning of the murder.       The juvenile court’s post-remand opinion merely

draws reasonable inferences from the facts of record. The court’s reasoning

is consistent with its adjudication and consistent with the legal standard for

assessing the sufficiency of the evidence.

         Next, Appellant argues that the juvenile court now rejects the

credibility of Elana Somple, the forensic expert who testified as to the

gunshot residue on Appellant’s clothing.        Appellant believes the juvenile

court has belatedly determined that Somple was not credible in testifying

that residue can transfer from one object to another.       Appellant misreads

the juvenile court’s opinion.     The juvenile court did not reject Somple’s

testimony that residue transfer can occur. The court simply found that no

residue transfer occurred in this case. The juvenile court deemed it unlikely

that gunshot residue transferred from an outer layer of clothing to jeans or a

shirt.    Once again, the court’s reasoning is consistent with the established

facts and its original adjudication.


                                       - 30 -
J-A13020-16


      Third, Appellant argues that the juvenile court improperly reassessed

C.B.’s testimony. In its post-remand opinion, the juvenile court noted that it

did not believe C.B.’s testimony about the close relationship among

Appellant, the Victim, and the Victim’s daughters. Juvenile Court Opinion,

5/19/15, at 25, 36-37. The juvenile court discounted C.B.’s testimony based

on C.B.’s obvious incentive to protect his son.     It is true that the juvenile

court did not explicitly reject C.B.’s credibility prior to its post-remand

opinion. Regardless, the juvenile court’s post-remand opinion is consistent

with its original adjudication.   In adjudicating Appellant delinquent, the

juvenile court implicitly did not believe that Appellant and the Victim had a

good relationship.    Likewise, the juvenile court credited the evidence

eliminating Harvey as a suspect even though C.B. implicated Harvey as a

person who would murder the Victim.          Clearly, the juvenile court either

found C.B. not credible or discounted his testimony because he is Appellant’s

father.

      Finally, Appellant argues the juvenile court improperly reassessed the

credibility of Appellant’s statements to Trooper Wilson. In its post-remand

opinion, the juvenile court noted, among other things, that Appellant gave

two different accounts of the black truck he allegedly saw when he was

leaving for school on the morning of the murder.        In his first statement,

Appellant did not mention that a person was in the truck.            Later that

evening, he told Trooper Wilson a person was “ducking over” in the truck


                                    - 31 -
J-A13020-16


and the truck’s lights were “sort of half on.” N.T. Trial, 4/11/12, at 75. In

its post-remand opinion, the juvenile court noted that it disbelieved

Appellant’s account based on those inconsistencies. Juvenile Court Opinion,

5/19/15, at 49-50. Again, it is true that the juvenile court never addressed

this discrepancy until its post-remand opinion.      Regardless, the juvenile

court’s adjudication of delinquency clearly establishes that the court

disbelieved Appellant’s account of his actions that morning. We observe, for

example, that Appellant denied having fired his .20 gauge shotgun on the

morning in question.     Despite this, the juvenile court found that Appellant

committed the killing with that weapon.

      Appellant’s third and final argument lacks merit because it relies

entirely on case law involving altered verdicts. Instantly, the juvenile court

did not alter its adjudication of delinquency.    Furthermore, Appellant has

failed to cite any instances of a reassessment of facts or a redetermination

of credibility.   The juvenile court’s reasoning in its post-remand opinion is

consistent with its original adjudication and consistent with the standards

governing challenges to the weight and sufficiency of the evidence.

      In summary, we have reviewed Appellant’s three arguments—a

challenge to the sufficiency of the evidence, a challenge to the weight of the

evidence, and a challenge to the juvenile court’s post-remand findings and

analysis—and discerned no error on the part of the juvenile court.        We

therefore affirm the order of disposition.


                                     - 32 -
J-A13020-16


     Order of disposition affirmed.

     Judge Olson Joins the Opinion.

     Judge Musmanno Notes Dissent.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2016




                                      - 33 -
