J-S64018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

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




APPEAL OF: M.H.

                                                      No. 342 MDA 2017


                Appeal from the Order Entered January 4, 2017
               In the Court of Common Pleas of Dauphin County
              Juvenile Division at No(s): CP-22-JV-0000267-2016


BEFORE: PANELLA, SHOGAN, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                       FILED NOVEMBER 20, 2017

       Appellant, M.H., a minor, appeals from the dispositional order 1 entered

on January 4, 2017, after he was adjudicated delinquent on October 25,

2016, for the crimes of riot, simple assault, and disorderly conduct.2 After

careful review, we affirm.

       The juvenile court set forth the relevant factual background in this

matter as follows:
____________________________________________


*   Former Justice specially assigned to the Superior Court.

1  Although Appellant styles his appeal as being from the February 1, 2017
order denying his post-disposition motion, the appealable order is the
January 4, 2017 dispositional order, which is the equivalent of the judgment
of sentence in a criminal matter. In re J.D., 798 A.2d 210, 211 n.1 (Pa.
Super. 2002). We have corrected the caption accordingly.

2   18 Pa.C.S. §§ 5501(1), 2701(a)(1), and 5503(a)(1), respectively.
J-S64018-17


            The instant case involves two (2) separate fights that
     occurred after school on March 10, 2016. Portions of both fights
     were recorded on bystanders’ cell phone[s] and were admitted
     at trial as Commonwealth’s Exhibits 2 (first fight) and 7 (second
     fight). The first fight occurred on Orchard Drive approximately
     half-way between North Harrisburg and Sixth Streets. The
     second fight occurred on Lincoln Street near Daron Alley.

           The Commonwealth presented testimony from [“T.M.,” a
     juvenile], who sustained head injuries as a result of the fights.
     T.M. testified that he was walking home from school on March
     10, 2016 when he came across other juveniles fighting and tried
     to break it up when someone swung at him. (Notes of
     Testimony, Adjudication Hearing 10/25/16 (“N.T.”) at 12.) After
     becoming involved in the fight, T.M. testified that he was holding
     Appellant, who was on top of him, and trying to stand up, but
     other people were fighting around him. (N.T. at 16). T.M. was
     trying to protect himself when he was picked up and fell down
     again. (Id.) According to T.M., approximately forty (40) people
     were in the general vicinity of the first fight. (N.T. at 18). The
     fight was eventually broken up by some of the by-standers, and
     no one was injured. (Id.)

            As for the second fight, T.M. testified that he continued to
     walk home when he was approached by Appellant and his two
     brothers. (N.T. at 19). T.M. testified that he and Appellant were
     fighting one-on-one in the beginning, and then when T.M. got on
     top of Appellant, he was “swooped” by Appellant’s brothers.
     (N.T. at 23). Thereafter, T.M. blacked out and he “came to” on
     the floor in his friend’s home. (N.T. at 24). As a result of the
     fight, T.M. sustained a wound to his head as depicted in
     Commonwealth’s Exhibit 4.

            Appellant also testified during the adjudication hearing. He
     stated that he was walking home from school with a group of
     people when all of a sudden someone next to him threw a punch
     at him. (N.T. at 61). It was a closed fist punch to the left cheek.
     (Id.) Appellant backed up and saw T.M. throwing his hands up,
     and then T.M. grabbed him. (N.T. at 62). Appellant testified that
     he felt that he was “swooped” by T.M. and was not trying to fight
     him at that time. (N.T. at 63). According to Appellant, the first
     fight was broken up by Appellant’s friend [R]. (Id.).




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            After the first fight was broken up, Appellant testified that
     T.M. continued to walk behind him cracking jokes and saying
     things to him. (N.T. at 64-65). Appellant then saw his brothers
     walking towards him, and he and T.M. began to fight one-on-
     one. (N.T. at 64-65). Appellant did not call them or send for
     them, however, he testified that he heard someone went to get
     them. (Id.) Appellant stated that he “grabbed T.M.’s head and he
     fell on his head and I just held on there” which caused T.M.’s
     head injury. (Id.) Thereafter, Appellant stood up and saw that
     there were other people fighting around him. (N.T. at 66).

           The Commonwealth also presented testimony from Officer
     Dory Thompson (hereinafter “Officer Thompson”) of the Steelton
     Borough Police Department. Officer Thompson testified that the
     police department received several calls of fights breaking out
     after school let out throughout the Borough on March 10, 2016.
     (N.T. at 33). The first 911 call came in at approximately 3:00
     P.M. wherein the caller advised that there was a fight occurring
     at the intersection of Lincoln and Bailey Streets. (N.T. at 34-35).
     The fight had already disbursed when she arrived, but she made
     contact with the caller who advised that one of the juveniles
     involved in the fight left with a head injury. (N.T. at 35).

           At approximately 3:30 P.M., Officer Thompson was
     dispatched for another call for a fight at the intersection of North
     Second and Pine Streets. (N.T. at 35-36). Upon her arrival, she
     observed a group of juvenile males on the porch of 109 Second
     Street, and a gold vehicle parked across the street with T.M. in
     the passenger seat. (N.T. at 37). The males were later identified
     as Appellant and his brothers, [J.Z.H. and W.H.] (N.T. at 39).
     Officer Thompson then made contact with T.M. and called for an
     ambulance to attend to his head injury. (Id.) When questioned
     about his injury, T.M. “pointed to the group of males that -
     juvenile males that were standing on the porch across the street
     and he said that they had jumped him on Lincoln.” (N.T. at 37).

           Due to concerns for her safety, as well as the safety of the
     public, Officer Thompson requested back-up assistance as there
     were four (4) other groups of five (5) to six (6) individuals
     congregating in the area. (N.T. at 38). Approximately four (4)
     other townships responded to the call - Lower Swatara, Swatara,
     Highspire, and Royalton. (Id.)




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           Thereafter, Officer Thompson made contact with … T.M.’s
     mother, who became agitated and started to walk towards the
     juvenile males on the porch. (N.T. at 39). Officer Thompson
     stopped her and advised her not to make contact. (Id.) Next,
     Officer Thompson made contact with … Appellant’s mother, who
     advised her that Appellant was jumped first by T.M. (N.T. at 41).
     However, [Appellant’s Mother] was not present during the fight,
     and the only information she had was provided to her by
     Appellant. (Id.) [Appellant’s Mother] provided Officer Thompson
     with a video of the first fight that was entered into evidence as
     Commonwealth’s Exhibit 2. (N.T. at 42).

           [Appellant’s Mother] testified on behalf of Appellant, her
     son. She testified that she had received some telephone calls at
     work telling her about the fights. (N.T. at 54). Based on
     information that she received, [Appellant’s Mother] placed a 911
     call on her way home from work that someone was attempting
     to kick in her door with a gun. (N.T. at 54-55). When she arrived
     home, [Appellant’s Mother] ran straight to the front door [which]
     looked as though it had been kicked out and would not close.
     (N.T. at 56). Thereafter, [Appellant’s Mother] had a conversation
     with Officer Thompson based on the information she received
     through telephone calls earlier, and had not yet had a chance to
     speak with Appellant. (N.T. at 57). As previously stated,
     [Appellant’s Mother] did not personally witness any of the events
     that occurred on March 10, 2016. (N.T. at 58).

            Appellant resides near the intersection of Pine and North
     Second Streets. On cross-examination, he testified that to get
     home from school he typically walks west on Orchard Drive,
     turns right travelling north on North Harrisburg Street, and then
     left on to Pine Street until he reaches his home. (N.T. at 69-70).
     Appellant testified that he was travelling that route on March 10,
     2016 when T.M. was following him. (N.T. at 70). On rebuttal,
     Officer Thompson testified that he would have had to travel a
     different route in order to be present at the second fight. (N.T.
     at 73). The second fight occurred near the intersection of Lincoln
     and Daron Alley, which is approximately two (2) to three (3)
     blocks north of where Appellant resides. Therefore, Appellant
     would have had to travel approximately three (3) blocks past the
     direction of his home, and another block down, in order to be
     present for the second fight. (N.T. at 74).

Juvenile Court Opinion, 4/7/17, at 3-7.

                                    -4-
J-S64018-17


      As noted above, Appellant was adjudicated delinquent on October 25,

2016, for the crimes of riot, simple assault, and disorderly conduct.         A

dispositional order was entered on January 4, 2017, and Appellant was

placed on formal probation with school-based supervision, ordered to

complete twenty-five hours of community service, write an essay on conflict

resolution, and attend and comply with cyber school regulations.           N.T.,

Disposition, 1/4/17, at 5-6; Juvenile Court Opinion, 4/7/17, at 1-2.

      Appellant filed a post-dispositional motion on January 17, 2017. The

juvenile court denied Appellant’s motion on February 1, 2017, and Appellant

filed his notice of appeal on February 16, 2017.      Both Appellant and the

juvenile court have complied with Pa.R.A.P. 1925.

      Before we address the merits of Appellant’s appeal, we must

determine if this matter is properly before our Court.      A notice of appeal

must be filed within thirty days of the entry of the order being appealed.

Pa.R.A.P. 903(a).    Pursuant to the Pennsylvania Rules of Juvenile Court

Procedure, a party may file a post-dispositional motion within ten days from

the entry of the order.   Pa.R.J.C.P. 620(A).    If a timely post-dispositional

motion is filed, the appeal period is tolled, and the party has thirty days from

the entry of the order disposing of the post-dispositional motion in which to

file a timely appeal. Pa.R.J.C.P. 620(B). Because Appellant’s dispositional




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J-S64018-17


order was entered on January 4, 2017, he had until January 17, 2017, in

which to file a post-dispositional motion.3

       When this matter was appealed to this Court, neither the juvenile

court docket nor the certified record reflected the filing of a post-

dispositional motion.      Accordingly, Appellant’s February 16, 2017 notice of

appeal appeared untimely having been filed more than thirty days from the

entry of the January 4, 2017 dispositional order. On March 28, 2017, this

Court directed Appellant to show cause why this appeal should not be

quashed as untimely, and on March 31, 2017, we directed the juvenile court

to ensure the accuracy of the juvenile court docket.       Appellant responded

that he had filed a post-dispositional motion on January 17, 2017, and the

juvenile court supported Appellant’s assertion. The juvenile court responded

that Appellant had filed a post-dispositional motion, but the motion had been

filed at a docket number associated with a separate case involving Appellant.

Juvenile Court Opinion, 4/7/17, at 2. The juvenile court explained:

       The Post-Dispositional Motion was filed to Docket Number 239-
       JV-2015 (which was one of [Appellant’s] previous cases).
       However, because [the juvenile court] was served with a copy of
       the motion, the incorrect number was not recognized, and it was
____________________________________________


3 The tenth day after the entry of the dispositional order fell on Saturday,
January 14, 2017; Monday, January 16, 2017, was Dr. Martin Luther King Jr.
Day. Thus, Appellant had until Tuesday, January 17, 2017, to file a timely
post-dispositional motion.   See 1 Pa.C.S. § 1908 (stating that, for
computations of time, whenever the last day of any such period shall fall on
Saturday or Sunday, or a legal holiday, such day shall be omitted from the
computation). Pa.R.A.P. 107; Pa.R.A.P. 903, note.



                                           -6-
J-S64018-17


      disposed of accordingly. On March 28, 2017, the Superior Court
      issued a rule upon Appellant to show cause why this appeal
      should not be quashed as untimely as the Post-Dispositional
      Motion was not docketed to Docket Number 267-JV-2016.
      Counsel for Appellant filed a response attaching a copy of the
      filed Post-Dispositional Motion (with the wrong docket number).
      Thereafter, the Superior Court directed this Court to docket the
      Post-Dispositional Motion within fourteen (14) days of the March
      31, 2017 Order. It was at this time that this Court realized that
      the Post-Dispositional Motion was filed to the wrong docket, and
      notified counsel for Appellant to file a praceipe requesting the
      Post-Dispositional Motion to be docketed to the correct docket
      number.

Juvenile Court Opinion, 4/7/17, at 2, n.4. Although it appears that counsel

has yet to praecipe to have the post-dispositional motion docketed at the

correct docket number, we will consider as done that which should have

been done. We decline to delay the disposition of this appeal and remand to

allow Appellant to complete the ministerial task of filing the aforementioned

praecipe.    Accord Commonwealth v. Allen, 420 A.2d 653, 654 n.3 (Pa.

Super. 1980) (deeming “done that which ought to have been done,” and

reaching the merits of an appeal where trial court’s order had not been

entered on the docket); see also Pa.R.A.P. 105(a) (permitting this court to

disregard the strict requirements of the appellate rules in order to expedite a

decision).   We are, therefore, satisfied that the January 17, 2017 post-

dispositional motion was timely, it tolled the appeal period, and as a result,

Appellant’s appeal was timely.

      On appeal, Appellant raises the following issues for this Court’s

consideration:


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      1. Whether the evidence presented at trial was insufficient to
      sustain the ajudication [sic] of deliquency [sic] for riot and
      disorderly conduct?

      2. Did the trial court erred [sic] when it denied [Appellant’s]
      motion for a new ajudication [sic] hearing based on the
      ajudication [sic] of delinquency was [sic] against the weight of
      the evidence?

      3. Did the trial court err when it overruled [Appellant’s] objection
      to [the] Commonwealth’s introduction of [Appellant’s] pre-arrest
      silence?

Appellant’s Brief at 8 (full capitalization and underscoring omitted).

      In his first issue on appeal, Appellant challenges the sufficiency of the

evidence underlying his adjudications.     When examining a challenge to the

sufficiency of the evidence supporting an adjudication of delinquency, this

Court employs a well-settled standard of review:

      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


                                     -8-
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      of fact can be drawn from the               combined   circumstances
      established by the Commonwealth.

In Interest of J.G., 145 A.3d 1179, 1188 (Pa. Super. 2016) (citations

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

evidence presented. Id.

      Appellant avers that the Commonwealth failed to produce sufficient

evidence to establish disorderly conduct.        Disorderly conduct is defined as

follows:

      (a) Offense defined.--A person is guilty of disorderly conduct
      if, with intent to cause public inconvenience, annoyance or
      alarm, or recklessly creating a risk thereof, he:

            (1) engages in fighting or threatening, or in violent
            or tumultuous behavior[.]

18 Pa.C.S. § 5503(a)(1).

      In the record certified to this Court on appeal, there are video

recordings that reveal Appellant engaging in two fights with T.M.            N.T.,

10/25/16, at 13-14, 22-23. Additionally, Appellant admitted to participating

in these fights. Id. at 63, 65. Accordingly, there is sufficient evidence to

establish the elements of disorderly conduct.

      Appellant also argues that the evidence was insufficient to establish

the crime of riot. Riot is defined as follows:

      A person is guilty of riot, a felony of the third degree, if he
      participates with two or more others in a course of disorderly
      conduct:

            (1) with intent to commit or facilitate the commission
            of a felony or misdemeanor[.]

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18 Pa.C.S. § 5501(1).

       “The essential element of a riot is group action.” Commonwealth v.

Crawford, 483 A.2d 916, 918 (Pa. Super. 1984) (citing Commonwealth v.

McGavin, 451 A.2d 773, 775 n.4 (Pa. Super. 1982)). As discussed above,

Appellant engaged in fights with T.M., and this behavior constituted

disorderly conduct.      The record further reveals that in Appellant’s second

fight with T.M., Appellant’s two brothers joined Appellant in the assault4 on

T.M.     N.T., 10/25/16, at 13-27.             Thus, Appellant and his brothers

commenced in a “group action” with the intent to fight with and cause bodily

injury to T.M., and this concerted assault and disorderly conduct resulted in

injuries to T.M. We discern no error of law in the juvenile court’s conclusion

that the evidence was sufficient to satisfy the elements of riot.

       In Appellant’s second issue, he argues that the adjudication of

delinquency was against the weight of the evidence.              We begin our

discussion of this issue with our well-settled standard of review:

       We may only reverse the juvenile court’s adjudication of
       delinquency if it is so contrary to the evidence as to shock one’s
____________________________________________


4 As discussed above, Appellant was also adjudicated delinquent of simple
assault. “A person is guilty of assault if he … attempts to cause or
intentionally, knowingly or recklessly causes bodily injury to another[.]” 18
Pa.C.S. § 2701(a)(1). Simple assault committed during a fight or scuffle
entered into by mutual consent, as is the case here, is graded as a
misdemeanor of the third degree. 18 Pa.C.S. § 2701(b)(1). Appellant does
not challenge the sufficiency of the evidence related to the adjudication for
simple assault.



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      sense of justice. Moreover, where the 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 against the
      weight of the evidence. Rather, appellate review is limited to
      whether the juvenile court palpably abused its discretion in
      ruling on the weight claim.

In re J.M., 89 A.3d 688, 692 (Pa. Super. 2014) (citation omitted). “Hence,

a juvenile court’s denial of a weight claim is the least assailable of its rulings.

Conflicts in the evidence and contradictions in the testimony of any

witnesses are for the fact finder to resolve.” Id. (citation omitted).

      After review, we conclude that there was no abuse of discretion in the

juvenile court’s conclusion.     The record reveals that Appellant and T.M.

engaged in two fights on March 10, 2016, and both instances were captured

in video recordings.    N.T., 10/25/16, at 13-14, 22-23.        The video of the

second fight reflects that while Appellant and T.M. were fighting, two

additional people joined Appellant in assaulting T.M.         Id. at 11, 22-23.

These individuals were Appellant’s brothers. Id. at 11. There is no dispute

that Appellant was involved in the fight, that the fights occurred on a public

street, that T.M. sustained bodily injury, or that Appellant was aided in his

assault on T.M. by his two brothers. We conclude that the juvenile court did

not abuse its discretion in denying Appellant’s motion for a new hearing.

Accordingly, Appellant is entitled to no relief.

      In his final issue on appeal, Appellant argues that the juvenile court

erred when it overruled Appellant’s objection to the introduction of

Appellant’s pre-arrest silence. We disagree.

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      Appellant correctly points out that the Commonwealth cannot use a

non-testifying defendant’s pre-arrest silence to support its contention that

the defendant is guilty because such use infringes on a defendant’s right to

be   free   from   self-incrimination.    Appellant’s   Brief   at   20   (citing

Commonwealth v. Molina, 33 A.3d 51, 62 (Pa. Super. 2011)).                  The

testimony at issue occurred during the Commonwealth’s questioning of

Police Officer Dory Thompson.      At the adjudication hearing, the following

exchange took place on the record:

      [Deputy District Attorney] Q: Were you able to identify who was
      across the street at that time?

      [Police Officer Dory Thompson] A: I was, yes.

      Q: And who was standing there?

      A: [Appellant and his two brothers].

      Q: Did you approach them regarding this case?

      A: I did, yes. And also present with them was their mother ….

      Q: What happened at that point?

      A: The juvenile males, [Appellant and his brothers], were - -

            [Counsel for Appellant]: Objection. Judge, this calls for
      whether or not he’s going to make statements before the
      defense has an opportunity to present its case. So, you know,
      basically whether he remains silent or didn’t or whatever his
      comments were I ask that they not get into that during the
      Commonwealth’s case in chief.

            THE COURT: This would be whose statements?

             [Counsel for Appellant]: I think they’re going to - - the
      officer is going to testify as to what [Appellant] might have said

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J-S64018-17


      or didn’t say. And I would suggest that he has - - they can’t
      introduce his right to remain silent even at the day of the
      incident.

            THE COURT: Well, except those are statements,
      adverse statements by your client. Whether they come in
      is something that - - he may decide whether he’s going to
      testify or not but there’s no basis to object to them
      coming in at this point - -

            [Counsel for Appellant]: All right.

            THE COURT: -- I believe. So I’m going to overrule the
      objection.

            [Counsel for Appellant]: Okay.

            THE COURT: And you may proceed

      [Deputy District Attorney]:

      Q: What happens after you approach the juveniles on the porch?
      How does your investigation continue at this point?

      A: I attempted to get their side of the story and ask, you know,
      why they were standing there, what happened, and not one of
      them would answer my questions.

N.T., 10/25/16, at 39-41 (emphasis added).

      It appears that there was some confusion regarding what Appellant’s

counsel was objecting to and upon what objection the juvenile court was

ruling. The juvenile court addressed this issue as follows:

            During the adjudication hearing, the objection was not
      specific. It appears that Appellant’s attorney was unsure whether
      Appellant made a statement or remained silent. This Court was
      made to believe that Appellant made statements adverse to his
      interest, which would be admissible as a hearsay exception to
      the Pennsylvania Rules of Evidence. However, when it became
      obvious that there was no statement made, that Appellant
      apparently did not say anything at all, counsel failed to renew

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         the objection. Therefore, this Court finds that the objection was
         defective, and failed to give notice to the Court as to a specific
         objection. Moreover, when it became obvious that no statements
         were made, counsel for Appellant failed to preserve the issue.
         Accordingly, the Court did not commit reversible error and the
         alleged pre-arrest silence did not play a role in the Court’s
         decision.

Juvenile Court Opinion, 4/7/17, at 14.          We agree with the juvenile court’s

assessment. “In order to preserve an issue for review, a party must make a

timely and specific objection.” Commonwealth v. Duffy, 832 A.2d 1132,

1136 (Pa. Super. 2003); Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

         The notes of testimony reveal that the juvenile court was under the

impression that Officer Thompson was being asked about a statement

Appellant had made, and Appellant’s counsel’s objection did not clarify the

issue.     Moreover, when Officer Thompson stated that Appellant gave no

statement, and the grounds for an objection regarding pre-arrest silence

manifested, Appellant’s counsel failed to object on this proper basis.         For

these reasons, we agree with the juvenile court that Appellant failed to make

a timely and specific objection, and therefore, this objection to the mention

of pre-arrest silence was waived. Duffy, 832 A.2d at 1136.

         Assuming arguendo, that Appellant’s counsel had lodged a proper

objection and that the juvenile court erred in ruling that Officer Thompson’s

testimony was admissible, any error was harmless. “Harmless error exists if

... the properly admitted and uncontradicted evidence of guilt was so


                                       - 14 -
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overwhelming and the prejudicial effect of the error so insignificant by

comparison that the error could not have contributed to the verdict.”

Commonwealth v. Mitchell, 135 A.3d 1097, 1106 (Pa. Super. 2016). As

set forth above, Appellant engaged in a fight with T.M. on a public street,

caused bodily injury to T.M., and Appellant’s brothers joined Appellant in his

assault on T.M.   Moreover, there was recorded video evidence of the assault

on T.M.     Thus, the properly admitted evidence was overwhelming.

Therefore, even if Appellant had objected and preserved this issue regarding

pre-arrest silence, we would conclude that any error was harmless.

      For the reasons set forth above, we conclude that Appellant is entitled

to no relief. Accordingly, we affirm the January 4, 2017 dispositional order.

      Order affirmed.

      Judge Panella joins this Memorandum.

      Justice Fitzgerald notes dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2017




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