J-S20029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: B.R., JUVENILE,           IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA




APPEAL OF: B.R.,

                        Appellant                 No. 1636 WDA 2014


      Appeal from the Dispositional Order Entered September 4, 2014
            In the Court of Common Pleas of Clearfield County
           Criminal Division at No(s): CP-17-JV-0000068-2014


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                              FILED MAY 1, 2015

      B.R. (“Appellant”) appeals from the dispositional order entered

following his adjudication of delinquency on charges of theft by unlawful

taking and receiving stolen property. Appellate counsel has filed a petition

to withdraw his representation and a brief pursuant to Anders v.

California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978

A.2d 349 (Pa. 2009), which govern a withdrawal from representation on

direct appeal.     We grant counsel’s petition to withdraw and affirm the

dispositional order.

      The trial court summarized the factual and procedural history of this

case as follows:

            On May 24th, 2014, [Jon] C. Mikesell’s son parked his
      bicycle in front of the Clearfield YMCA. Trial Transcr. 5:4
      (Sept. 4, 2014). The bicycle was then stolen. Id. at 5:9[.] In a
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     bench trial held on Thursday, September 4th, 2014, B.R.
     [(Appellant)] was adjudicated delinquent for the theft of that
     bicycle.   Id. at 41:7-15.     At trial, [Appellant], who was
     represented by counsel, testified on his own behalf. Id. at
     24:11[.] [Appellant’s] father, Donald, also testified on his son’s
     behalf. Id. at 34:19. The Commonwealth’s witnesses were
     Officer Jacob A. Rhymstine, the investigating officer; and Jon C.
     Mikesell (Mr. Mikesell). See generally Trial Transcr. (Sept. 4,
     2014). Mr. Mikesell was not only the victim’s father, but also
     [Appellant’s] guidance counselor at school. Trial Transcr. 7:16
     (Sept. 4, 2014).

            Mr. Mikesell testified as the Commonwealth’s first witness
     with regard to the events on the day the bicycle was stolen and
     the day Mr. Mikesell and his son discovered the bicycle in the
     possession of [Appellant’s] brother and father. Trial Transcr. 3-
     15 (Sept, 4, 2014). However, during the Commonwealth’s direct
     examination, Mr. Mikesell indicated that he was [Appellant’s]
     guidance counselor at school. Id. at 7:16. Following direct
     examination by the Commonwealth, and cross-examination by
     counsel for the defense, the Court questioned Mr. Mikesell
     regarding [Appellant’s] attendance, performance, and behavioral
     issues at school.       Trial Transcr. 12-15 (Sept. 4, 2014).
     Mr. Mikesell informed the Court that [Appellant] “had a very high
     attendance problem and [Appellant] had some issues of not
     wanting to go to class and some outbursts and things along
     those lines.” Id. at 13:10-12. In summation, [Appellant] had
     failed three classes the previous school year, had 40 unexcused
     absences and 21 unexcused tardies. Id. at 13:14-14:7. During
     the Court’s brief examination of Mr. Mikesell regarding
     [Appellant’s] school performance, neither party objected to any
     of the Court’s questions, nor to the testimony offered in
     response. Following the Court’s inquiry, the Court offered the
     witness to counsel for both parties for further questioning.
     Counsel for both parties declined to ask any further questions of
     Mr. Mikesell. Id. at 15:7-11.

           The remaining witnesses, including [Appellant] and his
     father, offered testimony which indicated that [Appellant] took
     possession of the bicycle and intended to keep it. See Trial
     Transcr. 15-41 (Sept. 4, 2014). The ultimate result of the trial
     was that [Appellant] was adjudicated delinquent on the theft of
     the bicycle, with a charge of receiving stolen property merging


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      with the lead offense, and was placed on probation for one year
      less one day. Trial Transcr. 41:7-42:2 (Sept. 4, 2014).

Trial Court Opinion, 12/2/14, at 1–2.

      As noted, counsel has filed a petition to withdraw from representation.

Before we address the questions raised on appeal, we first must resolve

appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83

A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing

requirements imposed upon an attorney who seeks to withdraw on appeal.

The procedural mandates are that counsel must:

      1) petition the court for leave to withdraw stating that, after
      making a conscientious examination of the record, counsel has
      determined that the appeal would be frivolous; 2) furnish a copy
      of the brief to the defendant; and 3) advise the defendant that
      he or she has the right to retain private counsel or raise
      additional arguments that the defendant deems worthy of the
      court’s attention.

Id. at 1032 (citation omitted).

      In this case, counsel has satisfied those directives. Within his petition

to withdraw, counsel averred that he conducted an examination of the

record. Following that review, counsel concluded that the present appeal is

frivolous. Counsel sent to Appellant a copy of the Anders brief and petition

to withdraw, as well as a letter, a copy of which is attached to the petition to

withdraw. In the letter, counsel advised Appellant that he could represent

himself or that he could retain private counsel to represent him.

      We now examine whether the brief satisfies the Supreme Court’s

dictates in Santiago, which provide that:

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

Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).

      Counsel’s brief is compliant with Santiago. It sets forth the history of

this case and outlines pertinent case authority. We thus conclude that the

procedural and briefing requirements for withdrawal have been met.

      Counsel presents the following issues for our review:

      I.    Whether the Court of Common Pleas of Clearfield County
            [hereinafter “Lower Court”] erred when, on September 4,
            2014, it questioned Mr. John [sic] Mikesell concerning the
            Juvenile’s school record during the Juvenile’s hearing,
            which introduced irrelevant and prejudicial information into
            the record.

      II.   Whether the Lower Court erred when, on September 4,
            2014, it adjudicated the Juvenile delinquent on the charges
            of Theft by Unlawful Taking (M2) and Receiving Stolen
            Property (M2) and ordered its disposition, despite the lack
            of sufficiency of [sic] evidence.

Anders Brief at 6.

      The first issue challenges the trial court’s questioning of Mr. Mikesell as

resulting in the introduction of irrelevant and prejudicial information.     The

trial court disposed of this issue succinctly:

            Initially, the Court notes that counsel for neither party
      objected to the trial Court’s line of questioning of Mr. Mikesell

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       regarding [Appellant’s] school attendance and performance. In
       fact, counsel was quite correct not to object, as nothing in the
       line of questioning was improper or objectionable. However,
       assuming arguendo that there even was a plausible objection to
       be raised it must be noted that no objection actually was raised.
       It is axiomatic that an objection or issue not timely raised, is
       waived.      Because [Appellant] raised no timely objection
       contemporaneous to the trial Court’s line of questioning, the
       issue is waived.

Trial Court Opinion, 12/2/14, at 3 (internal citations omitted).    We agree.

       Our rules of evidence require a contemporaneous objection in order to

preserve a claim of error in the admission of evidence:

       (a) Preserving a Claim of Error. A party may claim error in a
       ruling to admit or exclude evidence only:

       (1) if the ruling admits evidence, a party, on the record:

             (A) makes a timely objection, motion to strike, or motion
             in limine; and

             (B) states the specific ground, unless it was apparent from
             the context. . . .

Pa.R.E. 103(a).

       Here, the trial court found, and our review of the record confirms, that

defense counsel did not object to the line of questioning now challenged on

appeal.   N.T., 9/4/14, at 12–15.    Thus, the first issue is waived.    Pa.R.E.

103.

       The second issue challenges the sufficiency of the evidence supporting

the 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

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     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, 348–349 (Pa. Super. 2013), appeal denied, 80

A.3d 778 (Pa. 2013) (quoting In re A.V., 48 A.3d 1251, 1252–1253 (Pa.

Super. 2012)).

     Viewing     the   evidence   in   the   light    most   favorable   to   the

Commonwealth, the trial court disposed of this challenge as follows:

            B.R. was convicted of theft by unlawful taking or
     disposition-movable property. Pennsylvania Crimes Code states
     that a person is guilty of this offense “if he unlawfully takes, or
     exercises unlawful control over, movable property of another
     with intent to deprive him thereof,” 18 Pa.C.S. § 3921(a). Even
     a cursory review of the trial transcript reveals that there was
     ample evidence, including [Appellant’s] own testimony, to
     sufficiently support the Court’s adjudication and disposition.
     There is no dispute that [Appellant] exercised control over the
     movable     property,   namely     the    bicycle,  belonging    to
     Mr. Mikesell’s son, and that [Appellant] intended to deprive
     Mr. Mikesell’s son of the same.1 Trial Transcr. 15-41 (Sept. 4,
     2014).

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            1
               The only issue of any possible dispute is whether
            the act was “unlawful.” [Appellant] and his father
            offered testimony to suggest that [Appellant]
            thought the bicycle actually belonged to [Appellant]
            in the first place and that he was stealing it back.
            See Trial Transcr. 27:11-22 (Sept. 4, 2014); see also
            Trial Transcr. 36:12-21 (Sept. 4, 2014). However,
            whether “stealing back” the bicycle could be of any
            legal consequence is irrelevant as the Court did not
            find this story to be credible in the least.

            The trial Court heard and weighed the testimony of all of
      the witnesses at the trial. The trial Court found the testimony of
      Mr. Mikesell and Officer Rhymstine to be highly credible.
      Conversely, the trial Court found the testimony of [Appellant]
      and his father to lack credibility; and the trial Court ruled
      accordingly.

            The trial Court was free to draw reasonable inferences
      from the evidence offered at trial. Though [Appellant] may
      disagree with the trial Court’s inferences and findings, those
      inferences and findings of fact rest squarely within the trial
      Court’s discretion when acting as fact finder.

Trial Court Opinion, 12/2/14, at 6-7.

      Upon review, we conclude that the record supports the trial court’s

findings and that its conclusion of law is without error. The Commonwealth

introduced photographic and testimonial evidence—including Appellant’s

admission to the investigating officer—proving beyond a reasonable doubt

that Appellant took the bicycle from the YMCA with the intent to deprive

Mr. Mikesell’s son of it. N.T., 9/4/14, at 17–18. Also, the trial court acted

within its discretion in finding Appellant’s testimony incredible. Contrary to

Appellant’s description of the tires of the bicycle he owned, the front tire of

the Mikesell bicycle was secured by bolts, washers, and pegs, and the rear


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tire was original to the bicycle.   Id. at 18.   Moreover, Appellant told the

investigating officer that he took the bicycle from the YMCA.        At trial,

though, Appellant testified that his younger brother actually took the bike

from the YMCA. Accordingly, we conclude that Appellant’s sufficiency claim

lacks merit.

      Lastly, we have independently reviewed the record in order to

determine whether there are any non-frivolous issues present in this case.

Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having

concluded there are no meritorious issues, we grant Appellant’s counsel

permission to withdraw, and affirm the dispositional order.

      Petition of counsel to withdraw is granted.         Dispositional order

affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/1/2015




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