J-S67034-18

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

IN THE INTEREST OF: T.C., A MINOR         :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                                          :
                                          :
APPEAL OF: T.C.                           :     No. 1404 EDA 2018

              Appeal from the Dispositional Order April 10, 2018
              in the Court of Common Pleas of Delaware County
             Juvenile Division at No(s): CP-23-JV-0000792-2017

BEFORE:      OTT, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:           FILED APRIL 26, 2019

      T.C. (Appellant) appeals from the dispositional order entered on April

10, 2018, following his adjudication of delinquency for burglary and related

offenses.   Appellant’s counsel has filed a petition to withdraw and a brief

pursuant    to   Anders    v.   California,   386    U.S.   738   (1967),   and

Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). On January 17,

2019, we remanded the case for counsel to comply with the requirements of

Anders.     Counsel has filed an amended petition to withdraw and ensured

the inclusion of necessary materials in the certified record. The case is now

ready for disposition.    Upon review, we affirm the dispositional order and

grant counsel’s petition to withdraw.

      We provide the following background.          On June 24, 2017, Officer

Brady McHale responded to a call for a reported theft at a concession stand,

known as the Snack Shack, located inside the facilities at a local ballpark in

Radnor Township.    N.T., 4/10/2018, at 9.    Officer McHale investigated the



*Retired Senior Judge assigned to the Superior Court.
J-S67034-18


bathroom adjacent to the Snack Shack and observed damage to a handrail

and ceiling tile in the handicapped stall, as well as debris on the ground,

indicating that someone had climbed through the ceiling in the bathroom to

enter the Snack Shack. Id. at 9-11. A surveillance camera located inside

the Snack Shack recorded the theft. Id. at 11. Upon watching the footage,

Officer McHale immediately recognized 15-year-old Appellant. Id. at 14-15.

Specifically, he testified to his observations of the video recording as follows.

      [Appellant] enters from the ceiling area, opens up his backpack,
      [opens a refrigerator], and takes some sodas, then proceed[s]
      over to [] boxes, which are a variety of candy and chips and
      typical concession-stand-type food, places them into the
      backpack, returns the backpack to an unknown person and/or
      persons [in the ceiling] … and then returns back up with the
      assistance of a hand.

Id. at 13-14. As part of his investigation, Officer McHale executed a search

warrant at Appellant’s home, recovering a pellet gun. Id. at 16.

      Based upon the foregoing, the Commonwealth filed a juvenile petition

averring that Appellant engaged in the delinquent acts of burglary, receiving

stolen property, theft by unlawful taking, criminal mischief, and unlawful

possession of a pellet gun. At the adjudicatory hearing on April 10, 2018,

the juvenile court heard testimony from Officer McHale, Appellant, and an

alibi witness; watched the Snack Shack surveillance video recording, which

clearly depicted the perpetrator; and viewed photographs of the damage to

the bathroom.     At the conclusion of the hearing, the court found the

testimony of Officer McHale credible, Appellant’s alibi defense incredible, and



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determined that Appellant had committed the aforementioned delinquent

acts. Id. at 33. Additionally, at the recommendation of Juvenile Probation

and without objection from Appellant, the court found Appellant in need of

treatment, supervision, and rehabilitation. See N.T., 4/10/2018, at 34-36.

Therefore, the court issued a dispositional order that same day, placing

Appellant on probation and scheduling a dispositional review hearing for

October 3, 2018.     Adjudicatory/Dispositional Review Order – Amended,

4/10/2018.

      This timely-filed appeal followed.1   In this Court, Appellant’s counsel

filed both an Anders brief and a petition to withdraw as counsel.




1 The Commonwealth argues that this order was not a final, appealable
order, and therefore this appeal is premature. Commonwealth’s Brief at 1,
6. “In juvenile proceedings, the final order from which a direct appeal may
be taken is the order of disposition, entered after the juvenile is adjudicated
delinquent.” Commonwealth v. S.F., 912 A.2d 887, 889 (Pa. Super. 2006)
(unnecessary capitalization omitted). Before entering an adjudication of
delinquency, “the Juvenile Act requires a juvenile court to find that a child
has committed a delinquent act and that the child is in need of treatment,
supervision, or rehabilitation.” Commonwealth v. M.W., 39 A.3d 958, 964
(Pa. 2012) (emphasis in original). “If the court determines the juvenile is in
need of treatment, supervision, or rehabilitation, the court shall enter an
order adjudicating the juvenile delinquent and proceed in determining a
proper disposition[.]” In Interest of N.C., 171 A.3d 275, 280–81 (Pa.
Super. 2017) (quoting Pa.R.J.C.P. 409(2)(a)). Here, at the April 10, 2018
hearing, the juvenile court found Appellant to have committed delinquent
acts and determined that Appellant was in need of treatment, supervision,
and rehabilitation. It then entered a disposition as discussed supra. Thus,
the dispositional order was a final, appealable order entered after Appellant
was adjudicated delinquent. Accordingly, this appeal is properly before us.




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     Accordingly, the following principles guide our review of this matter

following remand.

            Direct appeal counsel seeking to withdraw under Anders
     must file a petition averring that, after a conscientious
     examination of the record, counsel finds the appeal to be wholly
     frivolous. Counsel must also file an Anders brief setting forth
     issues that might arguably support the appeal along with any
     other issues necessary for the effective appellate presentation
     thereof….

            Anders counsel must also provide a copy of the Anders
     petition and brief to the appellant, advising the appellant of the
     right to retain new counsel, proceed pro se or raise any
     additional points worthy of this Court’s attention.

            If counsel does not fulfill the aforesaid technical
     requirements of Anders, this Court will deny the petition to
     withdraw and remand the case with appropriate instructions
     (e.g., directing counsel either to comply with Anders or file an
     advocate’s brief on Appellant’s behalf). By contrast, if counsel’s
     petition and brief satisfy Anders, we will then undertake our
     own review of the appeal to determine if it is wholly frivolous. If
     the appeal is frivolous, we will grant the withdrawal petition and
     affirm …. However, if there are non-frivolous issues, we will deny
     the petition and remand for the filing of an advocate’s brief.

Commonwealth v. Wrecks, 931 A.2d 717, 720-21 (Pa. Super. 2007)

(citations omitted). Our Supreme Court has clarified portions of the Anders

procedure as follows.

     [I]n the Anders brief that accompanies court-appointed
     counsel’s petition to withdraw, counsel must: (1) provide a
     summary of the procedural history and facts, with citations to
     the record; (2) refer to anything in the record that counsel
     believes arguably supports the appeal; (3) set forth counsel’s
     conclusion that the appeal is frivolous; and (4) state counsel’s
     reasons for concluding that the appeal is frivolous. Counsel
     should articulate the relevant facts of record, controlling case




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        law, and/or statutes on point that have led to the conclusion that
        the appeal is frivolous.

Santiago, 978 A.2d at 361. Additionally, counsel seeking to withdraw from

an appeal in a juvenile delinquency proceeding must provide notice of that

request     to   both   the   juvenile   and   the    juvenile’s   parents.   See

Commonwealth v. Heron, 674 A.2d 1138, 1140 (Pa. Super. 1996) (“We

find the requirement of the Juvenile Act that notice be given to a juvenile

and his/her parents applicable to Anders cases involving juveniles.”).

        Based upon our examination of counsel’s petition to withdraw and

Anders brief, we conclude that counsel has complied substantially with the

technical requirements set forth above.2             Therefore, we now have the

responsibility “‘to make a full examination of the proceedings and make an

independent judgment to decide whether the appeal is in fact wholly

frivolous.’” Commonwealth v. Flowers, 113 A.3d 1246, 1249 (Pa. Super.

2015) (quoting Santiago, 978 A.2d at 354 n. 5).

        The sole issue arguably supporting an appeal cited by Appellant’s

counsel is whether the evidence was sufficient to establish Appellant’s

identity as the culprit in the above-mentioned theft. Anders Brief at 3. The

same standard of review applies when reviewing a challenge to a juvenile

adjudication as in a challenge in an adult criminal case.           In Interest of

J.B., 189 A.3d 390, 414 (Pa. 2018). “Because evidentiary sufficiency is a

2   Appellant has not filed a response to counsel’s motion.




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pure question of law, our standard of review is de novo and our scope of

review is plenary.” Id. at 414 n.24 (citation omitted).

             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.

In re V.C., 66 A.3d 341, 348–49 (Pa. Super. 2013) (citation and quotation

marks omitted). The finder of fact is free to believe some, all, or none of the

evidence presented.    Commonwealth v. Gainer, 7 A.3d 291, 292 (Pa.

Super. 2010).

      Appellant’s counsel does not present a claim that the evidence was

insufficient to prove any of the elements of the charged offenses, but rather

that the evidence was insufficient to prove that Appellant was the culprit.

Anders Brief at 6-7. In order for the juvenile court to adjudicate Appellant



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delinquent of the theft-related crimes, the Commonwealth was required to

prove beyond a reasonable doubt that Appellant was the individual who

broke into the Snack Shack and stole the concession items.

      At the April 10, 2018 hearing, the juvenile court heard the testimony

of Officer McHale, as outlined supra, and viewed the surveillance video.

Additionally, the Commonwealth admitted into evidence photographs of the

damage to the bathroom railing and ceiling tile. N.T., 4/10/2018, at 10-11,

Exhibits C1, C2. Appellant testified on his own behalf and presented an alibi

witness.   The juvenile court ultimately found that based on “the arresting

officer’s testimony, the photographs indicating damage done to the

premises, and the video surveillance[,]” the Commonwealth met its burden

to prove beyond a reasonable doubt that Appellant was the individual who

committed the delinquent acts. Juvenile Court Opinion, 6/26/2018, at 7.

      The juvenile court was free to reach its own conclusions, particularly

after viewing the surveillance video depicting the perpetrator, which included

a clear shot of the perpetrator’s face, and observing Appellant in court, to

credit the officer’s testimony and identification, and to disbelieve Appellant’s

alibi defense. Accordingly, viewing the evidence in the light most favorable

to the Commonwealth, there was sufficient evidence for the juvenile court to

find Appellant had committed the delinquent acts.

      Based upon the foregoing, we agree with counsel that a challenge to

the sufficiency of the evidence is frivolous.         Moreover, after “a full



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examination of the proceedings” we conclude “the appeal is in fact wholly

frivolous.” Flowers, 113 A.3d at 1248.          Accordingly, we affirm the

dispositional order and grant counsel’s petition to withdraw.

      Dispositional order affirmed. Petition to withdraw granted.

Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary


Date: 4/26/19




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