J-S77037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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




APPEAL OF: M.C.R.

                                                      No. 319 MDA 2016


             Appeal from the Dispositional Order December 3, 2015
                 in the Court of Common Pleas of Berks County
               Juvenile Division at No.: CP-06-JV-0000804-2015


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




APPEAL OF: M.C.R.

                                                      No. 320 MDA 2016


             Appeal from the Dispositional Order December 3, 2015
                 in the Court of Common Pleas of Berks County
               Juvenile Division at No.: CP-06-JV-0000473-2015


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED NOVEMBER 16, 2016

        In these consolidated cases,1 M.C.R., a minor, appeals from the

dispositional orders entered by the juvenile court following his adjudication
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S77037-16



as delinquent on the charges of arson, 18 Pa.C.S.A. § 3301(a)(1)(i), at

Docket No. 473-JV-2015, and burglary, 18 Pa.C.S.A. § 3502(a)(4), at

Docket No. 804-JV-2015. We affirm.

        The juvenile court set forth the factual and procedural history of the

arson case at Docket No. 473-JV-2015, as follows:

        Around midnight on October 13, 2014, [M.C.R.] met two female
        friends, V.W.[, his former girlfriend,] and A.W., also juveniles, to
        “hang out.” As the three of them walked the streets and
        alleyways of the borough of Bernville, [M.C.R.] cut down
        Halloween decorations and smashed pumpkins. At one point,
        A.W. left the group and returned home.

              Sometime between 2:30 a.m. and 3:00 a.m., [M.C.R.] and
        V.W. came upon a detached garage that faced an alleyway and
        was located behind the house at 117 West Third Street,
        Bernville. A bag of trash was sitting approximately one foot in
        front of the garage. [M.C.R.] asked V.W. for a zipper pouch
        which she was carrying. He opened it and removed his lighter.
        He then used the lighter to set the trash bag on fire. [M.C.R.]
        and V.W. then ran and hid in a recycling dumpster located
        approximately one-half block from the garage. After a short
        period, [M.C.R.] and V.W. left the dumpster.         Later that
        morning, [M.C.R.]’s mother found him and took him home and
        V.W. returned to her house.

              [M.H.] and her two children . . . were asleep in the house
        at 113 West Third Street when the fire was started. [M.H.] was
        awakened at 3:30 a.m. by the barking of her dog and the sound
        of someone pounding on her door. As she was proceeding
        downstairs to investigate, she saw smoke coming up the
        stairway. She then awakened her children and the three of them
        escaped through a patio door at the back of the house. When
        she exited, she saw that the garage was on fire and observed a
        neighbor nearby, the person who had been banging on her door.
                       _______________________
(Footnote Continued)
1
    This Court consolidated the appeals sua sponte on April 14, 2016.



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J-S77037-16


       [M.H.] remained at the house until the fire was extinguished.
       Several hours later, her younger child complained that he felt
       sick. She took both children to the emergency room of St.
       Joseph’s Hospital where they were diagnosed with carbon
       monoxide poisoning and smoke inhalation.

             Because the house sustained smoke damage from the fire,
       [M.H.], her boyfriend, and their two children had to live at a
       hotel for six weeks. Damage to the garage and house totaled
       approximately sixty-four thousand dollars ($64,000.00).

             After an extensive investigation, the Pennsylvania State
       Police charged [M.C.R.] with arson [and several related
       offenses].

              The court held a hearing on October 13, 2015 and found
       [M.C.R.] had committed the crime of arson.[2] On December 3,
       2015, the court adjudicated him delinquent. [M.C.R.] filed a
       post-dispositional motion on December 8, 2015, [challenging the
       sufficiency and weight of the evidence supporting the arson
       adjudication,] which was denied on February 11, 2016[,
       following a hearing]. This [timely] appeal followed.

(Juvenile Court Opinion, 5/31/16, at 1-3) (some capitalization omitted).

M.C.R. filed a timely court-ordered concise statement of errors complained

of on appeal on March 18, 2016, challenging the sufficiency and weight of
____________________________________________


2
  Relevant to this appeal, among the witnesses to testify at the hearing were
V.W., M.C.R., A.M.T. (a classmate of M.C.R.), and Pennsylvania State
Trooper John Burns, who investigated the fire and testified as an expert for
the Commonwealth. V.W. and M.C.R. essentially blamed one another for
setting fire to the bag of trash. (See N.T. Hearing, 10/13/15, at 50, 73).
On cross-examination, V.W. admitted that she set two fires subsequent to
October 13, 2014, to a sweatshirt and a book, when she was with M.C.R.
(See id. at 56-58). A.M.T. testified that M.C.R. admitted to her during class
that he set the October 13, 2014 fire with a lighter. (See id. at 38, 40-41).
She also testified that she is friends with V.W. and that she does not like
M.C.R. because of his distracting behavior in class. (See id. at 43). Trooper
Burns testified to his expert opinion that the fire was intentionally set. (See
id. at 27).



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the evidence supporting the arson adjudication.    See Pa.R.A.P. 1925(b).

The court filed an opinion on May 31, 2016. See Pa.R.A.P. 1925(a).

     The juvenile court set forth the factual and procedural history of the

burglary case at Docket No. 804-JV-2015, as follows:

     [O]n November 20, 2015, [M.C.R.] broke into a detached, two-
     car garage associated with [a] premises located on Lancaster
     Avenue, Tulpehocken Township, Berks County, Pennsylvania,
     and unlawfully took twelve firearms. . . . [M.C.R.] made a
     written false statement to a Tulpehocken Township police officer
     when he stated he had received the firearms from a friend,
     knowing he had acquired them earlier from the burglary.

          The Commonwealth charged [M.C.R.] with burglary [and
     several other offenses arising from the incident].

           On December 3, 2015, [M.C.R.] signed an admission form
     while being represented by counsel and admitted that he
     committed the crime of burglary. On that same day, based on
     the admission, the court found beyond a reasonable doubt that
     [M.C.R.] committed the crime of burglary and the remaining
     charges were withdrawn without prejudice.            Immediately
     thereafter, the court adjudicated [M.C.R.] delinquent on the
     charge of burglary and, inter alia, ordered him detained pending
     placement at George Junior Republic Special Needs Program.

           On December 8, 2015, [M.C.R.] filed a post-dispositional
     motion and a hearing was scheduled for February 11, 2016.
     However, this motion concerned issues that arose out of an
     unrelated case[, the arson adjudication at Docket No. 473-JV-
     2015.] The motion had nothing to do with the present case.
     After the hearing, the court on February 11, 2016, denied the
     post-dispositional motion. Thereafter, on February 23, 2016,
     [M.C.R.] filed this [timely] appeal.

           On March 3, 2016, the court ordered [M.C.R.] to file a
     concise statement of errors complained of on appeal. In lieu of




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       the concise statement, [M.C.R.]’s counsel, on March 18, 2016,
       filed a statement of intent to file an Anders/McClendon brief[3]
       because she believed there were no meritorious to appeal.

(Juvenile Ct. Op., 6/01/16, at 1-2) (quotation marks and some capitalization

omitted).

       On appeal, M.C.R. raises the following two questions for our review,

both of which relate to the adjudication of delinquency for arson:

       [1.] Whether the court erred in adjudicating [M.C.R.] delinquent
       for [a]rson, 18 Pa.C.S.A. § 3301(a)(1)(i), where the evidence
       presented at trial was insufficient to prove beyond a reasonable
       doubt that [he] intentionally started the fire[?]

       [2.] Whether the adjudication of delinquency against [M.C.R.] for
       [a]rson, 18 Pa.C.S.A. § 3301(a)(1)(i), is so contrary to the
       weight of the evidence presented as to shock one’s sense of
       justice where the testimony provided by V.W. and A.M.T. was
       incredible, unclear, influenced by ulterior motives, and
       contradicted by the testimony of other witnesses[?]

(M.C.R.’s Brief, at 6 (statement of the questions involved)).4

       In his first issue, M.C.R. argues the Commonwealth failed to present

sufficient evidence to support his adjudication of delinquency for arson.

(See M.C.R.’s Brief, at 15-18). M.C.R. challenges the element of intent, and

contends the Commonwealth failed to establish that he intentionally started

____________________________________________


3
  See Pa.R.A.P. 1925(c)(4); see also Anders v. California, 386 U.S. 738
(1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
Counsel filed an advocate’s brief in this Court, and did not file an Anders
brief.
4
  As we more fully discuss infra, M.C.R. attempts to raise a third claim,
relating to the burglary offense, at the end of the argument section of his
appellate brief. (See M.C.R.’s Brief, at 22-23).



                                           -5-
J-S77037-16



the fire.   (See id.).     M.C.R. takes issue with the testimony of the

Commonwealth’s expert witness, Trooper Burns, and he asserts that the

trooper’s testimony that the fire was intentionally set was speculative and

uncertain. (See id. at 16-17). M.C.R. also claims that the Commonwealth

did not offer any other witnesses who could state what caused the fire.

(See id. at 18). This issue does not merit relief.

            In evaluating a challenge to the sufficiency of the evidence
      supporting an adjudication of delinquency, our standard of
      review is as follows:

                  When a juvenile is charged with an act that
            would constitute a crime if committed by an adult,
            the Commonwealth must establish the elements of
            the crime by proof beyond a reasonable doubt.
            When considering a challenge to the sufficiency of
            the   evidence   following    an   adjudication   of
            delinquency, we must review the entire record and
            view the evidence in the light most favorable to the
            Commonwealth.

                  In determining whether the Commonwealth
            presented sufficient evidence to meet its burden of
            proof, the test to be applied is whether, viewing the
            evidence in the light most favorable to the
            Commonwealth,       and    drawing   all   reasonable
            inferences therefrom, there is sufficient evidence to
            find every element of the crime charged.         The
            Commonwealth may sustain its burden of proving
            every element of the crime beyond a reasonable
            doubt by wholly circumstantial evidence.

                  The facts and circumstances established by the
            Commonwealth need not be absolutely incompatible
            with a defendant’s innocence. Questions of doubt
            are for the hearing judge, unless the evidence is so
            weak that, as a matter of law, no probability of fact
            can be drawn from the combined circumstances
            established by the Commonwealth.

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In re V.C., 66 A.3d 341, 348–49 (Pa. Super. 2013), appeal denied, 80 A.3d

778 (Pa. 2013) (citation omitted).

      The juvenile court adjudicated M.C.R. delinquent on the charge of

arson. Arson is defined, in relevant part, as follows:

      (a) Arson endangering persons.—

            (1) A person commits a felony of the first degree if he
      intentionally starts a fire or causes an explosion, or if he aids,
      counsels, pays or agrees to pay another to cause a fire or
      explosion, whether on his own property or on that of another,
      and if:

            (i) he thereby recklessly places another person in
            danger of death or bodily injury, including but not
            limited to a firefighter, police officer or other person
            actively engaged in fighting the fire[.]

18 Pa.C.S.A. § 3301(a)(1)(i).

      With respect to intent, the Crimes Code provides in pertinent part:

           (1) A person acts intentionally with respect to a material
      element of an offense when:

            (i) if the element involves the nature of his conduct
            or a result thereof, it is his conscious object to
            engage in conduct of that nature or to cause such a
            result[.]

18 Pa.C.S.A. § 302(b)(1)(i).

      Regarding expert testimony, Pennsylvania Rule of Evidence 703

provides: “[a]n expert may base an opinion on facts or data in the case that

the expert has been made aware of or personally observed. . . .” Pa.R.E.

703. This Court has stated:




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J-S77037-16


      expert testimony is incompetent if it lacks an adequate basis in
      fact. While an expert’s opinion need not be based on absolute
      certainty, an opinion based on mere possibilities is not
      competent evidence. This means that expert testimony cannot
      be based solely upon conjecture or surmise. Rather, an expert’s
      assumptions must be based upon such facts as the jury would be
      warranted in finding from the evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).

      Here, on direct examination, Trooper Burns testified “that the most

likely cause of this fire was an intentionally set fire[.]”    (N.T. Hearing,

10/13/15, at 27). During cross-examination, Trooper Burns further testified

“I believe this is an intentionally set fire, but I wasn’t priv[y] to the—my

ultimate conclusion was I didn’t know what caused the fire. . . . I found no

accidental causes[.]”   (Id. at 28).    M.C.R. maintains that Trooper Burns’

testimony in this regard was incompetent “speculation” and “does not rise to

the level of certainty required to provide an expert opinion.” (M.C.R.’s Brief,

at 16-17; see also id. at 13). We disagree.

      Preliminarily, we observe that M.C.R. stipulated to Trooper Burns’

qualifications as a fire investigator and expert in the area of fire cause and

origin, and that M.C.R. did not object to Trooper Burns’ expert opinion that

the fire was intentionally set. (See N.T. Hearing, 10/13/15, at 21-22, 27).

Therefore, we agree with the Commonwealth that, to the extent M.C.R.

challenges the admission of Trooper Burns’ expert testimony regarding the

origin of the fire, that portion of his sufficiency argument is waived.   See

Pa.R.A.P. 302(a); see also Commonwealth v. Baumhammers, 960 A.2d


                                       -8-
J-S77037-16



59, 73 (Pa. 2008), cert. denied, 558 U.S. 821 (2009) (“[I]t is axiomatic that

issues are preserved when objections are made timely to the error or

offense.”) (citations omitted); (see also Commonwealth’s Brief, at 8-9).

      Further, after review of Trooper Burns’ testimony, we agree with the

juvenile court that his opinion regarding causation of the fire was not based

on speculation. The court explained:

             Trooper Burns testified that he found no accidental causes
      of the fire. The lack of an accidental source, plus the timeframe
      from when the trash was placed at the curb until the time of the
      fire, led the [t]rooper to conclude that the fire was intentional.
      He said a randomly tossed cigarette probably would not have
      ignited the material in the trash bags and that there was nothing
      outside the garage, other than the trash bag, that would have
      ignited in the presence of a flame. Once given the opportunity
      to develop his initial statement, Trooper Burns’ opinion was that
      the cause of the fire was intentional, not accidental[.] . . .

                               *    *      *

      . . . [Trooper Burns’] opinion was not based upon conjecture or
      surmise. He arrived at the scene shortly after the fire, examined
      the garage’s interior and exterior, and applied his expertise in
      determining that location of the fire’s origin and ruled out all
      accidental causes. [The court] concluded that Trooper Burns’
      opinion rested on a sturdy foundation and was competent to
      prove that the fire was intentionally set[.]

(Juvenile Ct. Op., 5/31/16, at 6-8) (record citations omitted).

      We also observe M.C.R.’s sufficiency claim centered on Trooper Burns’

testimony ignores V.W.’s testimony that she saw M.C.R. use his lighter to

ignite the bag of trash on fire.   (See N.T. Hearing, 10/13/15, at 49-51).

Additionally, A.M.T.’s testimony corroborated V.W.’s testimony. (See id. at




                                     -9-
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37-40). Thus, the Commonwealth presented ample evidence in addition to

Trooper Burns’ testimony indicating that M.C.R. intentionally set the fire.

          Therefore, viewing the evidence in the light most favorable to the

Commonwealth, we determine the record fully supports the juvenile court’s

finding that M.C.R. intentionally set the fire. See In re V.C., supra at 348–

49. Accordingly, we conclude the evidence was sufficient to support M.C.R.’s

adjudication of arson under section 3301(a)(1)(i). M.C.R.’s first issue merits

no relief.

          In his second issue, M.C.R. challenges the weight of the evidence

supporting his adjudication of arson.       (See M.C.R.’s Brief, at 18-21).    He

argues the testimony of V.W. and A.M.T. was incredible, contradictory, and

motivated by bias against him. (See id. at 19-21). With respect to V.W.,

he emphasizes that he used to date her, and that she admitted responsibility

for setting two other fires.       (See id. at 19).    Regarding A.M.T., M.C.R.

asserts that her testimony is tainted by the fact that she is friends with

V.W., and by her admission that she does not like M.C.R. because of his

distracting behavior in class.     (See id. at 21).    This issue does not merit

relief.

                 A weight of the evidence claim concedes that the evidence
          is sufficient to sustain the verdict, but seeks a new trial on the
          grounds that the evidence was so one-sided or so weighted in
          favor of acquittal that a guilty verdict shocks one’s sense of
          justice. Thus, we may reverse the juvenile court’s adjudication
          of delinquency only if it is so contrary to the evidence as to
          shock one’s sense of justice. Moreover, where the juvenile court
          has ruled on the weight claim below, an appellate court’s role is
          not to consider the underlying question of whether the verdict is

                                        - 10 -
J-S77037-16


      against the weight of the evidence. Rather, this Court is limited
      to a consideration of whether the juvenile court palpably abused
      its discretion in ruling on the weight claim. Hence, a juvenile
      court’s denial of a weight claim is the least assailable of its
      rulings, as conflicts in the evidence and contradictions in the
      testimony of any witnesses are for the fact finder to resolve.

In re A.G.C., 142 A.3d 102, 109 (Pa. Super. 2016) (citations and quotations

marks omitted).

      In the instant case, the juvenile court found the testimony of V.W. and

A.M.T. credible.   (See N.T. Hearing, 2/11/16, at 7).     In support of this

finding, the court stated the following:

            The court had an opportunity during the hearing to
      observe all the witnesses and judge their credibility based upon
      their testimony and demeanor.        Any inconsistencies in the
      evidence were minor and did not seriously impair the
      truthfulness of V.W. and A.M.T. The credible testimony of these
      two witnesses was consistent on the salient fact that [M.C.R.]
      ignited the trash bag that caused the garage to catch fire. Thus,
      the adjudication of delinquency was not contrary to the weight of
      the evidence.

(Juvenile Ct. Op., 5/31/16, at 9-10).

      In his appellate brief, M.C.R. simply asks this Court to re-weigh the

evidence and reevaluate the juvenile court’s credibility determinations

regarding V.W. and A.M.T., a task that is beyond our scope of review. See

In re A.G.C., supra at 109.         Following our review of the record, we

conclude that the juvenile court did not palpably abuse its discretion in

denying M.C.R.’s weight of the evidence claim.    See id.   M.C.R.’s second

issue merits no relief.




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      Finally, we note that M.C.R. purports to raise, for the first time, a third

argument near the conclusion of his brief, relating to his adjudication of

burglary at Docket No. 804-JV-2015.           (See M.C.R.’s Brief, at 22-23).

Specifically, M.C.R. requests that this Court remand the matter to the

juvenile court for a determination of whether its disposition is consistent

with his need for treatment and rehabilitation, and the protection of the

public. (See id.). Relying on Commonwealth v. M.W., 39 A.3d 958 (Pa.

2012), M.C.R. asserts the juvenile court’s determination that he committed

the delinquent act of burglary does not, on its own, warrant an adjudication

of delinquency. (See M.C.R.’s Brief, at 22); see also M.W., supra at 959

(“hold[ing] that the Juvenile Act requires a juvenile court to find both (1)

that the juvenile has committed a delinquent act; and (2) that the juvenile is

in need of treatment, supervision, or rehabilitation, before the juvenile court

may enter an adjudication of delinquency.”).       However, this argument is

waived for myriad reasons.

      First, M.C.R. did not raise this issue in the juvenile court; his post-

dispositional motion challenged only his adjudication of delinquency for

arson. See Pa.R.A.P. 302(a). Furthermore, in his appellate brief, M.C.R. did

not include the issue in his statement of the questions involved; he did not

set forth the facts relating to the burglary charge in the statement of the

case; and he did not discuss his argument relating to burglary in the

summary of the argument, in violation of our rules of appellate procedure.




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See Pa.R.A.P. 2116(a), 2117(a)(4), 2118.            Accordingly, the argument is

waived.

          Moreover, we note for the sake of completeness that M.C.R.’s claim is

not supported by the record, which reflects that in entering its dispositional

order for burglary, the court made an express determination that: “It is

contrary to the welfare of [M.C.R.] to remain in the home of [his mother]. . .

. [M.C.R.] is in need of treatment, supervision or rehabilitation. . . . [He]

shall be placed in a Residential Facility at George Junior Special Needs

Program which is the least restrictive type of placement that is consistent

with the protection of the public and best suited to [his] treatment,

supervision, rehabilitation and welfare[.]” (Dispositional Order at Docket No.

804-JV-2015, 12/03/15, at 1-2; see also N.T. Hearing, 12/03/15, at 2

(court adjudicating M.C.R. delinquent on charge of burglary after making

determination that he was in “need of treatment, rehabilitation, and

supervision[.]”)).      The record also reflects that the court presided over

M.C.R.’s adjudicatory hearing for arson and was well aware of his

background.        Accordingly, this argument is waived and would not merit

relief.

          Dispositional orders affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2016




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