J-A15025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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




APPEAL OF: Q.C., A MINOR

                                                        No. 2237 EDA 2014


                 Appeal from the Dispositional Order July 8, 2014
              In the Court of Common Pleas of Philadelphia County
               Juvenile Division at No(s): CP-51-JV-0004347-2013


BEFORE: BOWES, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                            FILED OCTOBER 07, 2015

        Appellant, Q.C., a juvenile, appeals from the juvenile court’s July 8,

2014 order of disposition, following an adjudication of delinquency for

burglary and conspiracy.         Q.C. challenges the sufficiency of the evidence

supporting his adjudication. After careful review, we reverse.

        The certified record reveals the history of this case. On December 13,

2013, a delinquency petition was filed, alleging Q.C. committed the offenses

of burglary, criminal trespass, criminal mischief, theft by unlawful taking,

receiving stolen property, and loitering and prowling at night. 1        It was

averred that Q.C., together with others, took a vehicle from the premises of
____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
 18 Pa.C.S.A. §§ 3502(a)(4), 3503(a)(1)(ii), 3304(a)(4), 3921(a), 3925(a),
and 5506, respectively.
J-A15025-15


Complainant, Harrison Motors, a used car dealership.           By oral motion,

granted by the juvenile court prior to the adjudication hearing, the petition

was amended to add the charges of unauthorized use of a motor vehicle,

and conspiracy to commit burglary.2 An adjudication hearing took place on

June 18, 2014.

        At the adjudication hearing, the Commonwealth called four witnesses.

Officer Katie Lankford testified about the initial investigation into an accident

at 30th Street and Girard Avenue in Philadelphia on July 6, 2013, involving

an abandoned Dodge Caravan. The investigation led to Complainant’s used

car establishment, where police noticed a damaged open gate and several

apparently disturbed and damaged vehicles. Officer Lankford testified about

the damage observed on five vehicles on the lot and identified a photograph

of the damaged gate, marked as Commonwealth exhibit C-1(A).

        William Bland, property manager for Complainant, testified that he had

secured the premises the evening before, and that there was no damage to

the gate or vehicles at that time. Bland described photographs of the scene,

marked as Commonwealth exhibits C-1(B) to (J), depicting the state of the

damage on the night of the incident.             Bland acknowledged the Dodge

Caravan involved in the accident on Girard Avenue came from Complainant’s

lot.   Bland described Complainant’s security system and stated he pulled

video and still shots from the surveillance equipment.      He described three
____________________________________________
2
    18 Pa.C.S.A. §§ 3928, and 903, respectively.


                                           -2-
J-A15025-15


still shots marked as Commonwealth exhibits C-2(A) to (C). Bland testified

that the premises upon which the vehicles were located was routinely open

to the public during regular business hours.         Marvin Harrison, also a

proprietor of Complainant, testified that the total damage to the vehicles and

the gate was $26,000.00.

      Detective Earl Martin, testified that, as part of his investigation, he

obtained two useful prints, including a partial right hand palm and right little

finger print found on the outside front driver-side window of one of the

damaged vehicles on the lot. The parties stipulated that the prints were a

match for Q.C. Q.C. was not a match for prints obtained from the Dodge

Caravan.

      Q.C. did not testify or present any witnesses. Following the testimony

and arguments by counsel, the juvenile court adjudicated Q.C. delinquent on

the burglary and the conspiracy charges and determined the remaining

charges had not been proven beyond a reasonable doubt.          A dispositional

hearing was held on July 8, 2014, at which the juvenile court, noting Q.C.

was subject to placement through an unrelated dependency matter, ordered




                                     -3-
J-A15025-15


Q.C. to remain in current placement per that matter. 3          Q.C. filed a timely

notice of appeal on July 30, 2014.4

       On appeal, Q.C. raises the following single issue for our review.

              Was not the evidence insufficient to prove beyond a
              reasonable doubt that the juvenile committed
              delinquent acts which, if committed by an adult,
              would constitute the crimes of burglary and
              conspiracy because the evidence failed to prove
              beyond a reasonable doubt that it was the juvenile
              who committed said delinquent acts?

Q.C.’s Brief at 3.

       We note the following standards guiding our review of this issue. Our

Supreme Court explained that, “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, before the court may enter an

____________________________________________
3
  At a subsequent dispositional review hearing held August 5, 2014, the
juvenile court placed Q.C. on probation.
4
   Appellant has complied with Pennsylvania Rule of Appellate procedure
1925(b). In lieu of a Rule 1925(a) opinion, the trial court filed a “Request
the Matter be Remanded and Jurisdiction be Relinquished,” stating as
follows.

              Based upon in depth legal research and review of the
              case law balanced with the specific fact pattern in
              the matter sub judice, [the trial] court, respectfully,
              requests that the case be remanded and jurisdiction
              be relinquished back to the trial court to reverse it[s]
              ruling and enter an appropriate verdict consistent
              with [the trial c]ourt’s discovered findings.

Trial Court’s Request the           Matter     be   Remanded   and   Jurisdiction   be
Relinquished, 9/30/14, at 1.


                                           -4-
J-A15025-15


adjudication of delinquency.” Commonwealth v. M.W., 39 A.3d 958, 964

(Pa. 2012) (emphasis in original).

                 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 [juvenile’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.




                                     -5-
J-A15025-15


In re V.C., 66 A.3d 341, 348-349 (Pa. Super 2013), quoting In re A.V., 48

A.3d 1251, 1252–1253 (Pa. Super. 2012), appeal denied, 80 A.3d 778 (Pa.

2013).

      Q.C. concedes the Commonwealth proved that the crimes of burglary

and conspiracy indeed occurred at Complainant’s premises between July 5,

2013 and July 6, 2013. Q.C.’s Brief at 11. Q.C. contends, however that “the

evidence presented which putatively identified [Q.C.] as one of the

perpetrators was insufficient as a matter of law.” Id. Q.C. maintains that

the sole evidence linking him to the burglary is the presence of his handprint

on the exterior front driver-side window of one of the damaged vehicles on

the lot.   Id. at 13.   Because the evidence established that the car lot in

question was open to the public during business hours, and no testimony

was elicited that the prints could not have been innocently impressed upon

the window prior to the evening of July 5, 2013, Q.C. argues that the

fingerprint evidence is insufficient to identify him as a perpetrator of the

crimes. Id. at 13-14.

      In support of his argument, Q.C. cites this Court’s seminal decision in

Commonwealth v. Cichy, 323 A.2d 817 (Pa. Super. 1974).               Therein,

reviewing cases from other state and federal jurisdictions, the Cichy Court

concluded “the mere discovery of prints in a public place with which a

number of people may have had innocent contact is insufficient by itself to

convict.” Id. at 818.


                                     -6-
J-A15025-15


            If the Commonwealth[] can establish that the prints
            were impressed at or about the time the crime was
            committed     or     other  circumstances     indicate
            impression at that time, and the defendant’s
            innocent presence is excluded, such evidence has
            been held sufficient to convict. On the other hand,
            the evidence loses all probative value if the time of
            impression is not reasonably limited to the time of
            the crime, and the prints found in a generally
            accessible location.

Id. at 227 (citations omitted). Thus, the Cichy Court noted the probative

value of fingerprint evidence “depends entirely on the circumstances of each

case.” Id. at 118.

      In Cichy, the defendant’s fingerprints were found on a cigarette pack

located on the floor near a vending machine in a public area of the

burglarized premises.    Id.   The Cichy Court held that the fingerprint

evidence, standing alone, was insufficient to identify Appellant as a

perpetrator of the burglary.    Id. at 819; see also In the Interest of

M.J.H., 988 A.2d 694, 699 (Pa. Super. 2010) (holding that the appellant’s

fingerprints located on a clothes rack in a clothes store open to the public

during business hours were insufficient to identify Appellant as a perpetrator

of the burglary); Commonwealth v. Henry, 875 A.2d 302, 306 (Pa. Super.

2005) (holding that the appellant’s fingerprints located on a placard located

inside a stolen vehicle, that had been abandoned for a period of time before

discovery, were insufficient to identify the appellant as a perpetrator of the

unauthorized use of the motor vehicle, because the appellant could have had




                                    -7-
J-A15025-15


access to the interior during the period of abandonment without an intent to

exercise control or dominion over it).

      Q.C. concludes, therefore, as follows.

             Under these circumstances, where the prints in
             question could have reasonably been left at a public
             location    by   a    defendant     under    innocent
             circumstances, and there is otherwise a lack of
             circumstantial evidence suggesting guilt, the law in
             Pennsylvania is clear that fingerprint evidence alone
             is insufficient to establish identification of that
             defendant as the perpetrator of the charged crimes.

Q.C.’s Brief at 13-14.

      The Commonwealth counters that the circumstances of this case

distinguish it from Cichy and other cases relied on by Q.C. Commonwealth’s

Brief at 9-11. First, the Commonwealth distinguishes Cichy by citing cases

where the fingerprints were in a location “not susceptible to a reasonable

inference of innocent contact.”     Id. at 9, quoting Commonwealth v.

Marrero, 914 A.2d 870, 872 (Pa. Super. 2006).            The Commonwealth

additionally attempts to distinguish Cichy and M.J.H, averring that in those

cases, unlike the instant case, “specific evidence was presented that the

accused had in fact previously visited the victimized business as a legitimate

customer.”

             [Q.C.’s] argument ignores that the thirteen-year-old
             defendant was not a potential buyer of a used car,
             and that his prints were found not on some
             innocuous public surface within the lot likely to be
             grazed by a licensee but impressed on the driver’s
             side window of one of the five cars which were
             driven and damaged during the burglary. To reach

                                     -8-
J-A15025-15


            the conclusion defendant suggests, this Court would
            not only have to read the record in the light most
            favorable to him, and draw all reasonable inferences
            in his favor, but to assume a highly unlikely
            coincidence.

Commonwealth’s Brief at 12. We disagree.

      We   find   the   cases    relied    on   by    the   Commonwealth    to   be

distinguishable. In those cases, either the location of the print was not in a

place open to the public or to which the defendant had access, or other

circumstances     demonstrated     the     prints    were   deposited   during   the

commission of the offense in question. In Marrero, this court found that a

fingerprint provided sufficient evidence of identification where Marrero’s

prints were found inside the engine compartment of a stolen vehicle that had

its engine removed and there was no legitimate public access to that

location. Marrero, supra at 873; see also Commonwealth v. Donohue,

62 A.3d 1033, 1037 (Pa. Super. 2013) (holding that defendant’s fingerprint

found on an opened soda bottle in victim’s basement, which had been

unopened in the kitchen the evening before the subject burglary where

copper piping had been stolen from the basement, was sufficient to identify

the appellant, who was unknown to the victim, as a perpetrator of the

burglary), appeal denied, 74 A.3d 125 (Pa. 2013); Commonwealth v.

Wilson, 392 A.2d 769, 771 (Pa. Super. 1978) (holding that defendant’s

fingerprint found on a closet door and an electric cord used to bind a victim

during a home invasion was sufficient to identify the appellant as a


                                          -9-
J-A15025-15


perpetrator of the burglary where the victims testified that the defendant

had not been in their home before); Commonwealth v. Hunter, 338 A.2d

623, 624 (Pa. Super 1975) (holding that defendant’s fingerprint found on a

piece of sheet metal used to cover a window 10 feet off the ground, through

which access to the building was gained during a burglary, was sufficient to

identify the appellant as a perpetrator of the burglary).

      Unlike the cases cited, the fingerprints found in the instant case were

not in an area restricted from public access or at an entry point of a burglary

where innocent contact is improbable.        Contrary to the Commonwealth’s

assertion, we conclude the possibility of Q.C.’s innocent presence on the car

lot during business hours sometime prior to the burglary is not dependent on

his status as a potential customer. Nor do we conclude the location of the

prints on the exterior of a driver-side window is an unlikely location to be

contacted by one casually browsing and inspecting cars on the lot. Critical

to our analysis, as well, is the fact that the Commonwealth, in the evidence

presented at the adjudication hearing, provided no indication of the age of

the prints, no indication that Q.C. was not or could not have been on the

premises prior to the burglary, and no indication of the last time the subject

surface had been cleaned.     Compare Marrero, supra, Donohue, supra,

Hunter, supra, and Wilson, supra. Thus, the inferences urged on us by

the Commonwealth, that the fingerprints could only have been made during

the burglary, stem merely from the existence of the prints themselves and


                                    - 10 -
J-A15025-15


not from any additional evidence of the circumstances of the case as

required by Cichy.          See Cichy, supra at 227.       For these reasons, we

conclude the Commonwealth’s claim that the fingerprint evidence in this

case was sufficient to identify Q.C. as a perpetrator in the burglary is

meritless.

      The Commonwealth also argues that the instant case is distinguishable

from Cichy because there is additional photographic evidence of Q.C’s

presence      during    the   burglary.        Commonwealth’s    Brief   at   10-11.

“Importantly, in all of the cases [Q.C.] cites, fingerprints were the only

evidence that the accused was the perpetrator.                  Here, by contrast,

defendant’s participation was corroborated by the photograph stills taken

from the security surveillance video.” Id. at 13.

      The photographs alluded to by the Commonwealth were identified as

exhibits     C-2(A)    to   (C)   and   were    authenticated   and   described   by

Commonwealth witness, Bland. See N.T., 6/18/14, at 22-25. However, as

pointed out by Q.C., the Commonwealth never moved for the admission of

the photographs. See Q.C.’s Brief at 12. Our review of the entire record

confirms this. Accordingly, the photographs themselves are not evidence in

this case and could not be considered by the trial court as fact-finder. See

Commonwealth v. Canales, 311 A.2d 572, 575 (Pa. 1973) (holding that

when items are not admitted into evidence, they do not qualify as exhibits

for consideration by a jury); Commonwealth v. Hemingway, 534 A.2d


                                          - 11 -
J-A15025-15


1104, 1106 (Pa. Super. 1987) (noting that a failure to move a photo into

evidence waives any right to admission).5 Accordingly, only the testimony

elicited from Bland relative to what the photographs depict may be

considered to determine if they provide corroborating evidence of Q.C.’s

presence during, and participation in, the burglary.        As can readily be

discerned, the relevant testimony from Bland is not corroborative evidence

because he acknowledged that he could not identify Q.C. as a perpetrator

based on the images. The relevant testimony is set forth in full as follows.

                      [ASSISTANT DISTRICT ATTORNEY]:       Your
              Honor, I’m going to show the witness for
              identification purposes what I’m marking as C-2, A
              through C.

              BY [ASSISTANT DISTRICT ATTORNEY]:

              Q.   Mr. Bland, I show you what I have marked as
              C-2. Do you recognize C-2?

              A.     Yes.

              Q.     Okay, what is C-2.

              A.     Inside the lot.

              Q.     Okay, what is depicted there?

              A.     It shows someone in the lot.

____________________________________________
5
  Both the Commonwealth and Q.C. reference certain comments by the trial
court made during the parties’ closing argument relative to what the
photographs depict. See Commonwealth’s Brief at 11, 13-14; Q.C.’s Brief at
12-13. As the photographs are not themselves evidence, we deem these
musings by the trial court to be irrelevant, as they constitute neither findings
of fact nor evidence in this case.


                                          - 12 -
J-A15025-15


          Q.    And is this one of the still shots that you
          turned over to the police?

          A.   Yes.

          Q.    That was letter (A).     What about letters (B)
          and (C)?

          A.   Yeah.

          Q.   Those are from your system?

          A.   Yes.

          Q.    And does your system date and time stamp
          video and photographs?

          A.   Yes.

          Q.   And to your knowledge is that accurate?

          A.   Yes.

                                   …

               THE COURT:         Did you look at this video
          yourself, where [sic] you able to run it, and look at
          it?

               THE WITNESS:      Yeah.

                THE COURT:       Okay, was there any problem
          with seeing the video?

                THE WITNESS:     It was like dark, it was a little
          dark. I mean you –

                                   …

               THE COURT:        … You looked at the video,
          you were able to see it even though it was dark, or
          no? Was it too dark to see anything on it?




                                 - 13 -
J-A15025-15


                 THE WITNESS:       You could see people moving
            around but like –

                 THE COURT:         You      couldn’t       identify
            anybody.

                  THE WITNESS:      Right, but you could see –

                  THE COURT:        -- and you turned it over to
            the police.

                  THE WITNESS:      Yes.

                  THE COURT:       But the stills you can identify
            a person, you can see a face? …

                  THE WITNESS:      No, not really.

                 THE COURT:       …   Do you think the still
            photos are easier to see than the video that you
            saw?

                 THE WITNESS: Me, personally,           I   think   it
            would be on the same order.

N.T., 6/18/14, at 22-25 (emphasis added).

      From the above, it is clear that the Commonwealth never elicited any

testimony that the photographs depicted or purported to depict Q.C.         In

response to the trial court’s question, Bland specifically stated that he could

not identify anyone from the video or the still shots. Therefore, we conclude

the Commonwealth’s assertion that the photographs in this case provide

corroboration of the fingerprint evidence in identifying Q.C. as a participant

in the burglary is disingenuous at best.

      Our close review of the entire record leads us to agree with Q.C. that

the only evidence linking him to the subject burglary is the partial handprint

                                    - 14 -
J-A15025-15


and fingerprint found on the exterior driver-side window of one of the

damaged vehicles.     It is undisputed that the premises, upon which the

vehicle was situated, was open to the public during regular business hours.

Absent further evidence of the attendant circumstances tending to bolster an

inference that the prints could only have been made during the burglary, we

conclude Cichy and its progeny apply. We therefore conclude the evidence

in this case was insufficient to prove Q.C. committed the subject burglary

and conspiracy. Accordingly, we reverse the juvenile court’s June 18, 2014

adjudication of delinquency and its July 8, 2014 order of disposition.

      Orders reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/7/2015




                                    - 15 -
