J-S19014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: Z.M., A MINOR                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
APPEAL OF: Z.M.
                                                      No. 1645 EDA 2015


               Appeal from the Dispositional Order March 23, 2015
              In the Court of Common Pleas of Philadelphia County
               Juvenile Division at No(s): CP-51-JV-0003138-2014


BEFORE: BENDER, P.J.E., STABILE, J. AND MUSMANNO. J.

MEMORANDUM BY BENDER, P.J.E.:                            FILED MAY 06, 2016

        Z.M. appeals from the dispositional order entered following the

adjudication of his delinquency on March 23, 2015, for acts constituting

aggravated assault, simple assault, and conspiracy.1 We affirm.

        The Commonwealth adduced the following evidence:

        At the [hearing] on March 23, 2015, Jose Luciano testified that
        on October 9, 2014, he went to the Septa [elevated train]
        station and there were children jumping the admissions gate and
        getting onto the crowded Septa train. The police were chasing
        them but did not intercept them. He noted that he boarded the
        train with his friend and, when the train stopped at the Church
        Street station, his friend was pushed off the Septa train and
        punched. He testified that he got off the train to help his friend
        when he came face to face with [Appellant], Z.M. Mr. Luciano
        then identified [Appellant] at the bar of the court. Mr. Luciano
        indicated that he pushed [Appellant] and [Appellant] then
        pushed him back and started punching him.           The witness
        attempted to defend himself when a group of other individuals
        started hitting and punching [and] backing him into a corner on
        the Church Street station platform. Mr. Luciano explained that
        [he] put his arms up to protect his face but the group still
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1
    Respectively, see 18 Pa.C.S. §§ 2702(a), 2701(a), and 903(c).
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     continued to hit him in the face and arms more than ten (10)
     times. Mr. Luciano also identified the Co-Defendant at the bar of
     the court as being involved in the incident.         The witness
     indicated that the incident lasted approximately ten (10) minutes
     when a Septa employee intervened to stop the flight. Mr.
     Luciano suffered a broken arm and a black eye. He underwent
     surgery at St. Christopher’s Hospital[,] and the fracture was
     secured with surgical plates and screws. Mr. Luciano testified
     that he missed approximately one month of school due to his
     injuries and he took pain medicine for longer than that. He still
     has scars on the underside of his left arm. Mr. Luciano explained
     that he had seen [Appellant] and Co-Defendant in the hallways
     of Frankford High School, where they were all students.
     [Appellant] was identified in a photo array.

     Next, counsel stipulated to the authenticity of a cell phone video
     obtained by School Police Officer Linda Sands.          The video
     depicted part of the incident. The video was marked as C-1.

     The second witness was Detective Jason Connor, Septa Transit
     Police Officer, Badge #16. Detective Connor investigated the
     October 9, 2014[] incident that occurred on the Church Street
     [elevated train] platform[,] which led him to interview
     [Appellant], Z.M. Counsel stipulated that the interview took
     place on November 20, 2014.          Detective Connor identified
     [Appellant], Z.M., at the bar of the court by name and clothing.
     Detective Connor said he spoke to the complainant on the day of
     the incident and he indicated that he attended Frankford High
     School.    Detective Connor then spoke to the School Police
     Officer, [Officer] Sands, who informed him that witnesses
     implicated [Appellant], Z.M., in the assault. Detective Connor
     then spoke with [Appellant’s] mother and requested her to bring
     her son to Septa Police Headquarters at 1234 Market Street,
     Philadelphia, PA for a formal interview. [Appellant] agreed and,
     prior to questioning, he was mirandized. He was interviewed in
     the presence of his mother. During the interview, [Appellant]
     acknowledged involvement in [the] October 9, 2014 incident.
     He also admitted that he “punched” the complainant and then
     other individuals jumped in to “help him[.”] He also saw other
     individuals “punching” the complainant. [Appellant’s] statement
     was entered into evidence as C-2[,] and the Commonwealth
     rested.




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      Following Detective Connor’s testimony, counsel stipulated that
      Barbara Martin would testify that [Appellant], Z.M., has the
      reputation and character in the community as being a peaceful
      and law-abiding person.

Juvenile Court Opinion, 07/07/2015, at 3-5 (citations to notes of testimony

omitted). To these facts, we note further that Mr. Luciano testified expressly

that Appellant and his associates first attacked his friend, and thereafter

attacked him when he tried to intervene.      See Notes of Testimony (N.T.),

03/23/2015, at 10.

      Following a hearing in March 2015, the juvenile court adjudicated

Appellant delinquent and placed him on probation.            Appellant timely

appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement.           The

juvenile court issued a responsive opinion.

      Appellant raises the following issue:

      Was not the evidence insufficient to sustain [dispositions of
      delinquency] against [A]ppellant for aggravated assault and
      conspiracy, where the evidence did not establish that [A]ppellant
      caused or attempted to cause serious bodily injury to the
      complainant, and did not prove that there was any criminal
      agreement between [Appellant] and another assailant?

Appellant’s Brief at 3.

      Appellant contends that there was no evidence that he was individually

responsible for Mr. Luciano’s serious injuries.   See Appellant’s Brief at 10.

Thus, according to Appellant, his liability for aggravated assault may only be




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sustained if there is sufficient evidence of his participation in a conspiracy. 2

Id.    Appellant submits that the evidence of a conspiracy is merely

speculative, in particular suggesting that the incident was spontaneous and

without a common plan or understanding.          See Appellant’s Brief at 13-16

(citing in support Commonwealth v. Kennedy, 453 A.2d 927, 930 (Pa.

1982); Commonwealth v. Wilson, 296 A.2d 719, 721-22 (Pa. 1972)).

Thus, Appellant concludes, the evidence of conspiracy was insufficient to

support his adjudication. See Appellant’s Brief at 17.

       In a juvenile proceeding, the hearing judge sits as the finder of
       fact. The weight to be assigned the testimony of the witnesses
       is within the exclusive province of the fact finder. In reviewing
       the sufficiency of the evidence, we must determine whether the
       evidence, and all reasonable inferences deducible therefrom,
       viewed in the light most favorable to the Commonwealth as
       verdict winner, are sufficient to establish all of the elements of
       the offenses beyond a reasonable doubt. The Commonwealth
       may sustain its burden of proving every element of the crime
       beyond a reasonable doubt by means of wholly circumstantial
       evidence.

In re L.A., 853 A.2d 388, 391 (Pa. Super. 2004) (internal citations

omitted). Moreover, the fact finder “is free to believe all, part, or none of

the evidence.”      Commonwealth v. Newton, 994 A.2d 1127, 1132 (Pa.

Super. 2010).


____________________________________________


2
 Appellant concedes he is liable for simple assault. See Appellant’s Brief at
17 n.2. Moreover, though Appellant does not expressly concede that Mr.
Luciano suffered serious bodily injury, such as would result from an
aggravated assault, we infer this from his argument.



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     A juvenile may be adjudicated delinquent for conspiracy if the

Commonwealth proves the following:

     1) [T]he [juvenile] entered into an agreement with another to
     commit or aid in the commission of a crime; 2) he shared the
     criminal intent with that other person; and 3) an overt act was
     committed in furtherance of the conspiracy. This overt act need
     not be committed by the [juvenile]; it need only be committed
     by a co-conspirator.

     The essence of a criminal conspiracy is a common
     understanding, no matter how it came into being, that a
     particular criminal objective be accomplished. Therefore, [an
     adjudication of delinquency] for conspiracy requires proof of the
     existence of a shared criminal intent.

In re V.C., 66 A.3d 341, 349 (Pa. Super. 2013), appeal denied, 80 A.3d 778

(Pa. 2013) (internal punctuation modified; citations omitted); see also 18

Pa.C.S. § 903(a).

     In the context of an assault, it is well settled that “[p]ersons do not

commit   the   offense   of   conspiracy   when   they   join   into   an   affray

spontaneously, rather than pursuant a common plan, agreement, or

understanding.”     Kennedy, 453 A.2d at 930 (citing Wilson, 296 A.2d at

721-22). However,

     [a]n explicit or formal agreement to commit crimes can seldom,
     if ever, be proved and it need not be, for proof of a criminal
     partnership    is   almost   invariably   extracted   from    the
     circumstances that attend its activities. Thus, a conspiracy may
     be inferred where it is demonstrated that the relation, conduct,
     or circumstances of the parties, and the overt acts of the co-
     conspirators sufficiently prove the formation of a criminal
     confederation. The conduct of the parties and the circumstances
     surrounding their conduct may create a web of evidence linking
     the accused to the alleged conspiracy beyond a reasonable
     doubt. Even if the conspirator did not act as a principal in

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       committing the underlying crime, he is still criminally liable for
       the actions of his co-conspirators in furtherance of the
       conspiracy.

In re V.C., 66 A.3d at 349; see also Kennedy, 453 A.2d at 930.

       In Kennedy, a physical altercation ensued following an intense

argument between the defendant, his friend, and defendant’s landlord.

Kennedy, 453 A.2d at 928. The defendant and his friend “viciously beat”

the landlord, who eventually died of his wounds.      Id.   The defendant was

convicted of conspiracy (among other crimes), but our Supreme Court

arrested the judgment of sentence with respect to conspiracy.       The Court

acknowledged that the Commonwealth’s evidence established that a brawl

occurred and that the defendant and his friend were participants.       Id. at

930.    However, the Court concluded that their “mere association” and

“simultaneous participation in the assault” was insufficient to establish an

agreement or common design. Id.; see also Wilson, 296 A.2d at 721-22

(concluding that there was insufficient evidence of conspiracy where the

defendant spontaneously fought with the victim and where the defendant’s

friends thereafter joined the fight without encouragement or invitation).

       In our view, Kennedy and Wilson are inapposite, and thus,

Appellant’s argument is unpersuasive.      Mindful of our standard of review,

see In re L.A., 853 A.2d at 391, the evidence established that Appellant

and his confederates jumped the turnstiles and boarded the train,

successfully escaping from police pursuit. At a subsequent station, members


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of the group pushed Mr. Luciano’s friend off the train and assaulted him.

When Mr. Luciano intervened on his friend’s behalf, members of the group,

including Appellant, assaulted him. This group assault caused Mr. Luciano to

suffer serious bodily injury.   Based upon these overt acts, the evidence

suggests more than a mere association between Appellant and his

confederates - more than the simultaneous participation of multiple

assailants in an assault. To the contrary, the evidence suggests that

Appellant and his confederates acted with common, criminal purpose.

     Accordingly, the juvenile court properly inferred that Appellant

conspired to commit the crime of aggravated assault. See In re V.C., 66

A.3d at 349. We affirm the dispositional order.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/6/2016




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