In the Interest of J.B., Appeal of: Comm

[J-10-2014]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, STEVENS, JJ.

IN THE INTEREST OF J.B. : No. 34 WAP 2013
:
: Appeal from the Order of the Superior
APPEAL OF: COMMONWEALTH OF : Court entered May 8, 2013 at No. 940
PENNSYLVANIA : WDA 2012, vacating the Order of the
: Court of Common Pleas of Lawrence
: County entered May 18, 2012 at No. 113
: of 2011, JUV and remanding.
:
: ARGUED: March 12, 2014

OPINION

MADAME JUSTICE TODD* DECIDED: DECEMBER 15, 2014

The Commonwealth appeals from the order of the Superior Court vacating the

dispositional order of the Juvenile Court of Lawrence County and remanding this matter

to that tribunal for further proceedings. We hereby vacate the order of the Superior

Court, and remand this matter to the juvenile court so that J.B. may be given the

opportunity to file a motion for a new adjudication hearing, nunc pro tunc, challenging

the weight of the evidence supporting his conviction for one count of first-degree murder

and one count of homicide of an unborn child.

I. Factual Background

The evidence of record adduced at the adjudication hearing held in this matter

established the following facts, which are relevant to the juvenile court’s adjudication at

issue in this appeal: During February 2009, C.B. (an adult male), along with his fiancée

*
This case was reassigned to this author.
— K.M.H (“the victim”) — her two daughters, J.H. (age 7) and A.H (age 4), and C.B.’s

11-year-old son J.B. were living together in a two-story rented house. The house was

located in a rural area surrounded by farmland and woods, and situated near the town

of Wampum, Pennsylvania. During the predawn hours on the morning of Friday,

February 20, 2009, C.B. left the house to go to work. According to C.B., it had snowed

overnight, and at the time he was leaving — 6:45 a.m. — there was snow on the

ground. N.T. Adjudication Hearing, 4/11/12, at 147. C.B. recalled that he departed in

his usual fashion by backing his vehicle out of a parking area adjoining the rear of the

house and onto the long driveway which led from a combination storage barn and

garage complex (“garage”) located behind the house to the nearby thoroughfare of

Wampum-New Galilee Road (“road”).1 He arrived at work approximately fifteen minutes

later at around 7:00 a.m. Id. at 146.

Later that morning, J.B. came downstairs from his upstairs bedroom in the house

to get dressed for school. Id. at 68. During this period of time, C.B. and the victim —

who was then over 8 months’ pregnant — had been in the process of relocating the

contents of their shared bedroom on the first floor of their home to J.B.’s upstairs

bedroom, attached to which was another smaller bedroom they had previously

converted into a nursery for use once their baby was born. N.T. Adjudication Hearing,

4/10/12, at 108; 4/11/12, at 68-69. This shared bedroom was located in the front of the

house directly to the right of the front door. N.T. Adjudication Hearing, 4/10/12, at 95.

1
The front of the house faced the road, and, as viewed from that perspective, the
parking area was located immediately behind the house on the left hand side, with the
barn situated some distance further back to the left and rear of the house. All locational
descriptions hereinafter provided in this opinion proceed from a vantage point of a
viewer facing the house from the road.

[J-10-2014] - 2
 In preparation for the final move, which was to take place during the upcoming

weekend, some of J.B.’s personal belongings, including his clothes, had already been

placed downstairs inside of the shared first floor bedroom. N.T. Adjudication Hearing,

4/11/12, 68-69. After awakening, J.B. went downstairs, entered that bedroom, where

the victim was sleeping at the time, retrieved his clothes, and got dressed in a nearby

bathroom. Id. at 69. After dressing, J.B. sat on the couch with J.H. and watched

television. Id. A.H. was still asleep. Id. at 66. J.B. recalled that while he and J.H. were

watching television, he heard the victim click her cell phone — either open or shut —

which he presumed was her checking the time. Immediately thereafter, the victim called

out to them that “they needed to leave or they would be late for the bus.” Id. at 70. J.B.

and J.H. left the house one or two minutes later, which J.B. estimated was around 8:13-

8:14 a.m., since both children normally caught the school bus that transported them to

Mohawk Elementary School around 8:12 a.m. every morning. Id. at 89. As J.B. exited

the house, he noticed a large black truck parked by the garage.2 N.T. Adjudication

Hearing, 4/11/12, at 65-66.

The driver of the school bus which arrived to pick up the children noted that,

when he first saw J.B. and J.H., they had made it a third of the way down the driveway,

and were walking toward the road, with J.B. a little bit ahead of J.H. N.T. Adjudication

2
As the Superior Court noted, the house had four entrances, In re J.B., 69 A.3d 268,
280 n. 11 (Pa. Super. 2013); Trial Exhibits 3, 4, 8, and 29 (photos of the house). C.B.
testified that, as was their usual practice, J.B. and J.H. would likely have exited the
house through a laundry room door located on the right hand side of the house opposite
the driveway. In order to get to the driveway from that exit, a person would have to
immediately turn left — and, thus, be facing the garage behind the house — then
proceed down a flight of stairs, turn left again, and walk through the parking area
between the house and garage. N.T. Adjudication Hearing, 4/11/12, at 156-57.
According to C.B., the family never used the front door of the house. Id. at 155, 157-58.

[J-10-2014] - 3
Hearing, 4/10/12, at 152. Once the children saw the school bus, however, the driver

recalled they both began to run down the driveway toward the bus with J.B. outpacing

J.H. by about ten yards during the run. Id. at 153. As they ran towards the bus, the

driver did not notice anything unusual in the way the children were acting, and, at no

time while he was watching them, did he observe them leave the driveway, or throw

anything. Id. at 154, 156. Once the children got to the bus, they each took their

respective assigned seats, as per their normal routine. Id. at 153-54. The bus driver

recalled observing nothing out of the ordinary about the children’s behavior after they

had gotten on the bus and during the time they were being transported to school. Id.

Approximately 45 minutes after the children got on the school bus — shortly after

9:00 a.m. — a six-person work crew from a tree service company arrived at the

premises to finish collecting firewood they had cut and collected the previous day from

the wooded area located in front of the house. Id. at 13, 19, 29. The crew came in

three trucks, with the lead truck driven by the owner of the business — Gary Cable —

entering the driveway first. Cable and his workers parked their trucks between the front

of the house and the woods line which was also in front of the house, but closer to the

road. Cable and his crew remained in that area all day. Id. at 18. Cable remembered

that there was a “light” coating of snow at the time on the ground, which he estimated

was approximately 1/8-1/4 of an inch in depth. Id. at 20. Cable did not recall seeing

any tire tracks in the driveway on his arrival, although he did note that the center of the

driveway was “humped up” when he pulled in. Id. at 22, 31.3

3
In his testimony at the adjudication hearing, Cable conceded that, based on the
amount of snow he observed, had a vehicle been driven on the driveway at 6:45 a.m. it
(continued…)

[J-10-2014] - 4
 Cable and his crew began working, after which one of his workers came to him

and reported seeing the screen door to one of the entrances to the house standing

open. Id. at 23. Cable told the worker that he would keep an eye on it. Id.

Approximately ten minutes later, Cable noticed the door open again and observed a

little girl — A.H. — crying; whereupon, Cable went up to the porch to see what was the

matter.4 A.H. told Cable that “her mother was dead.” Id. at 25. Cable called 911 and

sent one of his workers — Gary Suhanec — to the end of the driveway to flag down the

state police officers who had been dispatched. Cable, without entering the house,

attempted to console A.H. by speaking to her through the door, and Cable instructed

her to get her blanket from the couch and come over to the door so he could talk to her

and keep her calm. Id. at 26-27.

While waiting for the police to arrive, Suhanec called Cable on his cellphone and

informed him there were footprints on the driveway. Id. at 37. It was at that point that

Cable observed two sets of small footprints in the center of the driveway between

“[w]here the tire tracks run on either side of the driveway.” Id. at 38, 40. Cable

estimated this was approximately 45 minutes after he arrived — around 9:45 a.m. Id. at

36.

(…continued)
would “definitely” have left tire tracks. Id. at 32. C.B. also testified at the adjudication
hearing that Cable informed him, when they conversed on the evening of February 20,
2009, that one of his employees had seen tire tracks and that C.B. had requested that
Cable tell the investigating officers about this. N.T. Adjudication Hearing, 4/11/12, at
153. Cable did not recall any of his employees commenting on the presence of tire
tracks. N.T. Adjudication Hearing, 4/10/12, at 39.
4
It was not clear from the record which entrance the worker and Cable were referring
to.

[J-10-2014] - 5
 The first state police officers — Troopers Harry Gustafson and Corporal Jeremy

Bowser — arrived on the scene at 10:13 a.m. Id. at 43-46. Trooper Gustafson

encountered A.H., who was crying, at the front door. He picked her up and then took

her into the residence and sat her on the couch to watch television. Upon entering the

residence through the front door, he immediately saw the body of the victim lying on her

left side on the bed in the bedroom with a “very large” pool of blood by her head and

upper shoulders and soaking the sheet beneath. Id. at 49, 71. Troopers Gustafson and

Bowser engaged in emergency ventilation measures until paramedics arrived.

During the performance of these resuscitative efforts, the school nurse called the

victim’s cell phone requesting to speak to her. Trooper Gustafson answered the phone,

identified himself, and talked to the nurse, who indicated that J.B. was in her office

because he was not feeling well and that he was requesting to come home for the day.

Id. at 59-60. Trooper Gustafson asked the nurse to “baby-sit” J.B. until they could make

arrangements to have someone pick him up. Id. at 60.

The paramedics arrived at around 10:40 a.m. and began to examine the victim.

Id. at 85. During the examination, one of the paramedics noted a gunshot wound to the

back of her head. Id. at 81-82. The paramedics could not detect any life signs from the

victim, nor any fetal heartbeat. Id. at 81. At this point, other crime scene investigators

from the Pennsylvania State Police and the Lawrence County Coroner’s Office were

sent to the scene, after which the victim and her unborn fetus were pronounced dead.

In a short period of time thereafter, state police investigators confirmed that C.B. was at

work that morning as he claimed, and, after a gunshot residue test of his hands was

[J-10-2014] - 6
negative, he was quickly eliminated as a suspect. N.T. Adjudication Hearing, 4/11/12,

at 63, 82, 138, 147.

One of the state police officers who arrived at the home was Trooper Janice

Wilson, who, upon arrival, spoke briefly with A.H. Because A.H. was in a state of shock,

she could not provide coherent answers to Trooper Wilson’s questions. Id. at 60-61.

Trooper Wilson next went to Mohawk Elementary school to interview J.H. and J.B.

Upon arrival at the school — shortly after noon — Trooper Wilson asked to speak

to J.B., but was informed he was sleeping in the nurse’s office because he had a

stomach ache. Id. at 63, 70. Trooper Wilson then spoke with J.H., who initially was

distraught because she thought she was in trouble; however, she calmed down after the

school guidance counselor informed her she was not. Id. at 64. Trooper Wilson

interviewed J.H. for about ten minutes, but recalled that “[s]he really didn’t have much to

offer about what had happened that morning.” Id.5 J.H. did not testify at the

adjudication hearing.

J.B. was then awakened in the nurse’s office and brought by his guidance

counselor to be interviewed by Trooper Wilson in a nearby conference room. Trooper

Wilson did not inform J.B. of the death of the victim, but, instead, asked him who had

been present that morning in the house, and he replied that “it was his mom, referring to

[the victim], and his two sisters and himself.” Id. at 65-66. He noted that his dad had

already left for work, and A.H. was asleep and did not wake up before he and J.H. left

for school. Id. Trooper Wilson next asked J.B. “if he had seen anyone else around or

5
None of the trooper’s interviews were recorded, and her testimony regarding the
interviews she conducted was based on two reports prepared 6 days and 13 days after
the interviews, respectively. N.T. Adjudication Hearing, 4/11/12, at 106-07.

[J-10-2014] - 7
any vehicles there that day?” Id. J.B. replied that his mom’s green van was there which

she used to drive A.H. to school, and, also, “that he saw a black large pickup truck

parked back by the garage.” Id. Trooper Wilson pressed J.B. for details about the

truck, since she believed that it possibly belonged to the individual who had killed the

victim. Id. Trooper Wilson asked J.B. if the truck was running, and he stated that “he . .

. didn’t know.” Id. Trooper Wilson inquired if J.B. “saw anyone around,” and she

recalled that he replied no. Id. J.B. remarked the truck was of the same kind that he

would usually see when the owner of the farm and another man would be in when they

came to feed the cows. Id. at 66-67. Trooper Wilson further queried J.B. about what he

had done that morning, and he recounted, as detailed above, his actions of retrieving

his clothes, getting dressed and going with J.H. to the bus after the victim’s admonition

to them to hurry up, and then his first observation of the black truck upon exiting the

home. The interview concluded at that point.

Meanwhile, during the late morning and early afternoon hours, the state police

began searching for Adam Harvey — the ex-boyfriend of the victim — because he had

a history of making threats of violence against her. Id. at 125-26. At this time, the

victim, as well as her parents, sister, and brother-in-law had a permanent Protection

From Abuse (“PFA”) order against Harvey, stemming from an incident which occurred in

February 2008. During this incident, Harvey — then living in North Carolina — had

called the victim’s mother and “threatened to take [her] whole family out.” Juvenile’s

Exhibit B, PFA Order 2/4/2008. Harvey was also the owner of a black Ford F-150

pickup truck. Id. at 222-26. Harvey had returned from North Carolina in late October

2008, and had, within the previous two weeks, received paternity test results showing

[J-10-2014] - 8
that A.H. was not his biological daughter. Id. at 151, 191, 207. Also, at some point

during the preceding evening of February 19, 2009, Harvey confronted the victim’s

parents in a nightclub where he had gone to pick up food — resulting in his ejection

from the club. Id. at 126, 150.

Trooper Dominick Caimona was dispatched by his supervisor to find Harvey, who

was staying with a family that Trooper Caimona knew — the Klingensmiths, in the City

of New Castle. Id. at 220-23. When Trooper Caimona arrived at the Klingensmith

residence, he was informed by Thomas Klingensmith that Harvey was residing at an

address in Union Township, Lawrence County, and that Klingensmith would show him

the address. Klingensmith got into Trooper Caimona’s car which proceeded along State

Street — the main thoroughfare in Union Township. As the state police cruiser

approached the intersection of State Street and Miller Avenue, at around 1:20 p.m. in

the afternoon, Klingensmith saw Harvey’s black truck at the intersection and pointed it

out to Trooper Caimona. Id. at 221, 223, 226. Trooper Caimona parked the police car

and walked over to the truck; he asked Harvey to accompany him to the state police

barracks to talk with him, and Harvey agreed. Id. at 221.

Trooper Caimona noted that the intersection was located approximately 2 city

blocks from the home of Harvey’s parents where Harvey was staying. Id. at 222.

Trooper Caimona observed that Harvey’s truck had a light coating of snow on the hood

and roof and that it was dirty, as if it had been driven. Id. at 225. Harvey was taken to

the state police barracks and interviewed at around 2:23 p.m. Id. at 139. Harvey

provided an alibi, stating that he had been home in the basement of his parents’ house

since 10:00 p.m. the previous evening, and that the only way out of the house was

[J-10-2014] - 9
through the upstairs floor where his dad was. Id. at 133. Harvey’s hands were tested at

that time by investigators for the presence of gunshot residue, but none was detected.

Id. at 137. Based on his proffered alibi, and the presence of snow on the truck, which,

in the investigators’ opinion, suggested that it could not have been driven to Wampum

— a distance Trooper Caimona estimated to be 8-10 miles — and then back to his

home without coming off, Harvey was excluded as a suspect. Id. at 132-33, 223.

Also during the afternoon of February 20, Corporal Andrew Pannelle of the

Pennsylvania State Police conducted a visual inspection of the inside of the house. He

observed that all of the doors to the house were unlocked, and, also, that the front door

had blood on its frame. N.T. Adjudication Hearing, 4/10/12, at 124, 134.6 Corporal

Pannelle, while walking through the first floor of the house, noticed a blue blanket on the

floor near the front door, and he seized it because it had a hole in it, which he believed

could have been indicative of a shotgun blast. Id. at 127. The blanket was

subsequently subjected to microscopic examination and chemical testing and no

gunshot residue, or blood, was found on it. N.T. Adjudication Hearing, 4/11/12, at 121-

23.

Upon entering the first floor bedroom where the victim’s body was found,

Corporal Pannelle noted that the television, which sat on top of an armoire located in

the right hand side of the room, was turned on. N.T. Adjudication Hearing, 4/10/12, at

102. Observing that the doors to the armoire were closed, he opened them. Id. at 103.

Inside the armoire, he saw a locked gun safe on the bottom shelf, which was later

6
Although the blood was sent for forensic testing, no further information was provided
at the hearing regarding its origin.

[J-10-2014] - 10
determined to contain two handguns and ammunition. On the top shelf, Corporal

Pannelle saw a work helmet and two boxes of shotgun shells — one opened and one

closed. Id. at 104. The open box contained 16 unfired “Federal Premium” brand .20

gauge shotgun shells. Id. at 106.

Corporal Pannelle, accompanied by Sergeant Markilinski, also of the

Pennsylvania State Police, then proceeded to examine the second floor of the house.

Upon entering the front bedroom to the right of the stairwell — J.B.’s bedroom — both

troopers noted the presence of six “long guns” partially covered by an orange blanket,

which, as observed from the entrance to the bedroom, were standing in the left hand

side corner of the room nearest the door, between a dresser and the wall. Id. at 108-09.

The butt of one gun — a .30-.30 rifle — was protruding the furthest into the room as it

leaned against the wall. To its immediate right was a muzzleloader, and leaning directly

against that weapon, on the right-hand side, was a .20 gauge shotgun — a “Harrington

and Richardson . . . youth model.” Id. at 110-11, 121. Both of these guns, like the other

four in the group, were found standing upright against the back of the bedroom wall. Id.

at 139. Corporal Pannelle began to remove individual guns from the group, one at a

time, and hand them to Sergeant Marklinski for him to examine and determine if they

were loaded. Id. at 141.

The first gun removed by Corporal Pannelle was the flintlock rifle, which

Sergeant Markilinski examined and noted nothing unusual about it. Id. at 141. The

second weapon Corporal Pannelle handed to Sergeant Markilinski was the .20 gauge

shotgun. Sergeant Marklinski opened the breech of the shotgun and smelled burnt

gunpowder in the breech, which he pointed out to Corporal Pannelle, who also smelled

[J-10-2014] - 11
the odor. Id. at 113. Sergeant Markilinski also observed gunpowder residue in the

breech and in the barrel. Id. at 141-42. Both Corporal Pannelle and Sergeant

Marklinski testified that, based on their personal experience with firearms, they believed

the shotgun had been “freshly” or “recently” fired. Id. at 130-31, 142. However, both

acknowledged that they were not offering expert opinions in this regard, and that they

could not opine with any degree of scientific certainty exactly when the shotgun had

been fired. Id. at 132-33, 143. The .20 gauge shotgun was seized by the troopers and

sent for forensic examination. Id. at 147.

Because of the discovery of the shotgun, at 10:00 p.m. on the evening of

February 20, Trooper Wilson re-interviewed J.B. at his grandmother’s home where he

was staying. N.T. Adjudication Hearing, 4/11/12, at 71-72. J.B. had not been informed

of the victim’s death previously by anyone so, prior to Trooper Wilson speaking with

J.B., his father, C.B., took J.B. aside and told him “something bad had happened” and

“[the victim] isn’t with us anymore, she’s in heaven.” Id. at 72. Upon hearing this, J.B.

became emotional and started crying. Id. Once he had calmed down, Trooper Wilson,

along with another trooper, began to question J.B., with his father observing. Trooper

Wilson described his demeanor as “low-key” and that he was not nervous, excited, or

fidgety. Id. at 87.

Trooper Wilson asked J.B. for more details about the black truck and when he

had first seen it. Id. at 73. J.B. recalled that he first saw the truck as he exited the

house, when he reached in his pocket to see if he had ice cream money for school, and,

in the process, dislodged a mass of fuzz from his pocket which fell to the ground. N.T.

Id. at 73. When he bent over to pick it up, it was then he noticed the truck parked by the

[J-10-2014] - 12
garage. Id. Trooper Wilson asked J.B. if J.H. had seen the truck, and he replied that he

mentioned it to her but she didn’t respond, as he believed she was, at that point, too far

ahead of him to hear him. Id. at 74. J.B. also mentioned to Trooper Wilson that, while

he was out that afternoon in a vehicle driven by one of his relatives, he observed a

white S-10 truck which he said to his relative resembled the truck that was at the farm,

except he stated that the truck at the farm was black and larger than the S-10. Id. at 94-

95.

J.B. also informed Trooper Wilson that he had seen a person in a white hat

ducking over inside the truck he observed at the farm. Trooper Wilson inquired of J.B.

why he had not mentioned that when she talked with him that morning, and he

explained that when he first glanced at the truck he didn’t see anybody. Id. at 75. J.B.

also recounted his observation that the lights were on inside of the truck, and when

Trooper Wilson stated that he did not tell her that during the first interview, J.B., after

hesitating, then described the lights as being “sort of half on.” Id. at 75.

Trooper Wilson next asked J.B. if he had any guns, and he informed her that he

had a .30-.30 rifle. Id. at 76. Trooper Wilson questioned J.B. as to whether he had a

shotgun, and he replied yes. She inquired whether he knew what gauge it was, and he

stated that “it was a 20-gauge,” and further related that he only shot the gun outside

and, also, that he had shot it with his dad last month. Id. at 77, 101. Trooper Wilson

asked J.B. if he had fired the gun that morning, and he answered “no.” Id. at 101. The

interview ended at that point. Id. at 78.

At 3:30 a.m. on the morning of February 21, 2009, state police arrested J.B. at

his grandmother’s residence and charged him with the murder of the victim and her

[J-10-2014] - 13
unborn fetus. N.T. Adjudication Hearing, 4/10/12, at 217.7 No gunshot residue testing

of J.B.’s hands was ever performed. When J.B. was arrested, he was wearing a polo

shirt, blue jeans, a brown jacket, and tennis shoes. Id. These were the same clothes

J.B. had on when interviewed by Trooper Wilson at his school at noon on February 20.

N.T. Adjudication Hearing, 4/11/12, at 78.

Later during the morning of February 21, after sunrise, a team of state police

officers searched the exterior grounds in the immediate vicinity of J.B.’s residence, and

along its driveway. N.T. Adjudication Hearing, 4/10/12 at 207, 211. Sergeant Daniel

Brooks, in the company of several other state police officers, began walking outward

from the porch and down the driveway toward the road. Just outside of the residence,

adjacent to the porch area, they found a “very rusty” spent shotgun shell. Id. at 199,

202. As the officers walked further down the driveway in the direction of the road, they

discovered a second spent shell. This shell — a “Federal Number 6” brand .20 gauge

7
Although only 11 years old, J.B. was charged as an adult, and he subsequently filed a
decertification petition to transfer his case to the Juvenile Division of the Court of
Common Pleas of Lawrence County. The trial court — Judge Dominick Motto — denied
the petition on the grounds that, since J.B. consistently denied having committed the
crimes with which he was charged during interviews with psychological experts, he had,
in the court’s view, not taken responsibility for his actions; therefore, based on these
denials of culpability, the trial court reasoned that J.B.’s “prospects of rehabilitation
[were] . . . likely to be unsuccessful.” Commonwealth v. Brown, 26 A.3d 485, 490 (Pa.
Super. 2011). J.B. was granted permission for an interlocutory appeal of Judge Motto’s
order, and the Superior Court vacated it. The Superior Court held that requiring J.B. to
accept responsibility for the conduct he was alleged to have committed in order to
obtain decertification would require him to effectively admit his guilt of the particular
offenses charged, and, thus, violated his Fifth Amendment right against compulsory
self-incrimination. See id. Consequently, the court remanded for a new decertification
hearing, which, after the recusal of Judge Motto, was held before Judge John Hodge of
the Court of Common Pleas of Lawrence County. Judge Hodge granted the
decertification petition and presided over the adjudication and dispositional hearings
held thereafter.

[J-10-2014] - 14
— was found approximately 100 feet away from the house on the left hand side of the

driveway at the beginning of a fence line that ran the entire length of the left side of the

driveway. Id. at 195-96, 198, 210. The spent shell was located near the base of the

wire fence, a few feet from the middle of the driveway, and it was lying underneath

leaves which were frozen and covered by ice and snow. Id. at 210. When asked by the

prosecutor at the adjudication hearing8 to describe the condition of the shell — on a

sliding scale ranging from “pristine to the other spectrum being rusted and broken up” —

Sergeant Brooks characterized the shell as pristine, and he agreed with the prosecutor

that it was not weathered. Id. at 201-02.

Further along the driveway near the road, and embedded in the dirt of the

driveway itself, the searching officers found a third spent shell which, like the shell found

near the house, was “very rusty,” and it was also physically crushed into the surface of

the driveway. Id. at 204. In Sergeant Brooks’ view, both rusty shells had been there

“for quite some time.” Id. at 199. However, Sergeant Brooks also opined that there was

no way to estimate exactly how long any of the three shells had been lying outside. Id.

at 209. These three spent shells were the only ones found during the troopers’ search

of the property, and, after being photographed in their original positions, they were

collected as evidence. Id. at 205, 207.

At the adjudication hearing, the Commonwealth presented the testimony of Dr.

James Smith — a forensic pathologist — as to the nature of the victim’s gunshot

8
Because of a conflict of interest recognized by the current District Attorney of
Lawrence County — Joshua Lamancusa — the Office of the Pennsylvania Attorney
General took over the prosecution and currently represents the Commonwealth in this
appeal.

[J-10-2014] - 15
wound.9 Dr. Smith noted that he determined that the victim sustained a single gunshot

wound to the back of her neck, which, because of the presence of shotgun pellets in

and around the wound, he opined was inflicted by a shotgun. N.T. Adjudication

Hearing, 4/10/12 at 161. Dr. Smith described this wound as being in the shape of “a

large oval or ellipse” and “tangential,” i.e., slanted. Id. at 160-61. Due to the trajectory

of the wound — proceeding “slightly” from the back of the victim’s body to the front and

upward — Dr. Smith believed it had been inflicted as the victim was lying on her left side

on the bed. Id. at 161, 179.

Dr. Smith further noted that hot gas from the shotgun blast entered the wound

through the skin and muscle of the victim’s neck and caused the skin to bulge out and

rupture near the point of entry. Id. at 168. This phenomenon, known as “blowback,”

formed a “tract” or laceration in the skin. Id. To Dr. Smith, the nature of this type of

damage indicated that the gas from the shotgun blast was mostly contained within the

entry wound and did not have time to dissipate. Id. at 168-69. This factor, coupled with

the presence of powder in the wound and “soot” around the surface of the skin near the

point at which the pellets entered the skin, caused him to conclude that the shotgun was

“very, very close to, or maybe even touching, the back of the neck” when it was fired.

Id. at 168, 183-85. Although he could not give a precise distance, he estimated the shot

was fired from a distance of closer than two inches from the victim’s neck, and the

barrel of the gun was in “close contact” with her skin at the time. Id. at 185.

Dr. Smith found that, as the pellets entered the soft tissues of the neck, a small

portion of the pellets discharged a piece of bone from the occipital (rear) region of the

9
No forensic expert was called by J.B.’s counsel to testify on his behalf.

[J-10-2014] - 16
victim’s skull near its base, and then entered the interior of her cranial cavity. Id. at 161-

62. In his estimation, these pellets caused damage to the centers of the victim’s brain

which controlled her autonomic nervous functions, thereby causing the death of both the

victim and, because of the cessation of the victim’s blood circulation, her unborn fetus.

Id. at 160-61, 165; 173-78. Dr. Smith noted, however, that the vast majority of the

pellets he observed had “rebounded back downward” and traveled back in the direction

from which they had entered, resulting in them becoming lodged in the back of the

victim’s neck. Id. at 162.

Regarding the question of whether the blowback which occurred near the entry

wound could have caused blood or other tissue material to travel backwards along the

track of the pellets and enter the barrel of the shotgun, Dr. Smith opined that, generally,

blowback is more common whenever hot gas from a gunshot wound penetrates

beneath the skin and encounters bone which does not yield. Id. at 190-91. Dr. Smith

acknowledged that the shot which entered the victim’s wound impacted the bones of her

skull. Id. at 191. Dr. Smith agreed that it was, therefore, possible that this impact could

have caused tissue and blood to have been propelled back through the channel created

by the shot and into the barrel of the gun; however, he believed the angle of the gun at

the time the wound was made minimized the amount of blowback, and, thus, he opined

that one would not expect to find as much blood or tissue as would be present if the

wound was inflicted straight into the skin, i.e., with the gun barrel held at a 90 degree

angle thereto. Id. at 170-72, 186-92.

Also testifying at the adjudication hearing on behalf of the Commonwealth was a

certified toolmark and firearm examiner — Trooper Paul Burlingame of the

[J-10-2014] - 17
Pennsylvania State Police. Trooper Burlingame examined the .20 gauge shotgun

seized from J.B.’s residence. After test firing the shotgun, and subjecting it to a “shock

and drop” test, he determined that the weapon was not malfunctioning. N.T.

Adjudication Hearing, 4/11/12 at 40. Trooper Burlingame related that he also compared

the 27 shotgun pellets and pieces of wadding recovered from the body of the victim with

pellets from one of the unspent .20 gauge Federal No. 6 brand shotgun shells found in

the armoire of the victim’s bedroom.10 Trooper Burlingame noted that pellets and

wadding discharged from smooth bore shotguns, like the .20 gauge recovered from

J.B.’s bedroom, do not have any marks on them which would make them generally

usable for conducting an individual examination. Id. at 40, 47.11 Trooper Burlingame,

therefore, could not perform an individual examination of the pellets recovered from the

victim and the pellets in the unfired .20 gauge shells taken from the armoire. He did

note, though, that the 27 shotgun pellets recovered from the victim were “consistent” in

size, shape, weight, material,12 and construction with the pellets in the unfired shells,

10
Shotgun shell wadding is normally constructed of either plastic or fiber material, and
Trooper Burlingame explained that there are normally two areas in which wadding is
found in every shotgun shell: “an over-powder post-type wad” which covers the powder
in the shell and a “cup wad” which holds the shot itself. N.T. Adjudication Hearing,
4/11/12, at 45.
11
Trooper Burlingame described the process of individual examination as using a
comparison microscope to examine, side by side, an article of discharged ammunition
recovered from a crime scene and an article of discharged ammunition test fired from a
particular gun, in order to determine whether the tool markings on each article of
discharged ammunition, uniquely produced by every individual gun manufactured,
match. Id. at 42-43.
12
It does not appear from the record that Trooper Burlingame conducted any
comparative metallurgical analysis of the shot recovered from the victim and the shot
contained within the unspent shells, but only a comparison of their exterior
characteristics.

[J-10-2014] - 18
and, also, that the pieces of wadding taken from the body of the victim were “consistent”

with the type of wadding in the unfired .20 gauge shells. Id. at 45. Trooper Burlingame

also testified that markings created by the manufacturing process, which were found on

the discharged shotgun shell recovered from along the fence line of the driveway, were

the same as the markings on the unfired .20 gauge shells in the armoire. Id. at 44. This

led to his conclusion that the discharged shell had been fired from the .20 gauge

shotgun taken from J.B.’s bedroom. Id. at 44, 47.

Additionally, Elana Somple, the manager of the forensic science department of

R.J. Lee Laboratory — a materials testing laboratory — testified at the adjudication

hearing regarding the results of her testing of the shirt and pants J.B. was wearing at

the time of his arrest for the presence of gunshot residue.13 Ms. Somple explained that,

whenever a firearm is discharged, the firing pin impacts with the primer cap of the

ammunition loaded in the firearm, which causes the chemical elements therein — lead,

barium, and antimony — to ignite, and this force of ignition propels the bullet or

projectile in the ammunition out of the front of the muzzle of the gun. Id. at 8-9.

According to Ms. Somple, the rapid ignition of these 3 elements after the impact of the

firing pin with the primer cap causes them to vaporize and form a plume, or cloud,

around the firearm. Id. at 9. Eventually, the airborne particles in the cloud coalesce and

land on areas immediately surrounding the firearm, such as the shooter’s hands or

clothes. Id. Ms. Somple noted that whenever a particle is found with all 3 elements of

13
The then-District Attorney of Lawrence County — John Bongivengo — elected not to
have R.J. Lee Laboratories test J.B.’s coat and shoes for gunshot residue. N.T. 4/11/12
at 136.

[J-10-2014] - 19
lead, barium, and antimony fused together, it can be said with scientific certainty that

the particle is gunshot residue produced from the discharge of a firearm. Id. at 9-10.

Ms. Somple described how she dabbed both sides of the front of J.B.’s shirt and

the front of his jeans with double-sided sticky tape and then examined the particles lifted

by the tape under a scanning electron microscope. Her examination revealed one

particle of gunshot residue on the right side of J.B.’s shirt and one particle of gunshot

residue on the left leg of his jeans. Id. at 16-17. Ms. Somple could not pinpoint which

specific area on each article of clothing that the individual particles were found. Id. at

16. She also opined that the particles could have gotten onto the clothing in one of

three separate ways: “[t]he person could have discharged the firearm[;] or been in close

proximity to somebody else who discharged a firearm[;] or they came into contact with

something that had gunshot residue on it.” Id. at 21. Ms. Somple further related that

such particles can have an enduring presence on articles of clothing, noting: “If I

discharged a firearm and took my clothes off, put them in the corner of my room and

they were undisturbed for a month, two months, a year, and then tested those clothes,

you could still find gunshot residue on them.” Id. at 23. By contrast, she explained that

a person who discharged a firearm and then went about his or her daily activities would

have any gunshot residue on his or her hands removed by those activities. Id. at 13.

Ms. Somple additionally related, “[a]s a rule of thumb,” that she would expect to see

more particles of gunshot residue deposited on someone who fired a gun inside of a

house, where there is no airflow, than someone who fired a gun outside where the wind

could affect the deposition of the particles. Id. at 27-28.

[J-10-2014] - 20
 Corporal Jeffrey Martin of the Pennsylvania State Police testified at the

adjudication hearing regarding the results of other forensic tests performed on J.B.’s

clothing, the spent shotgun shell found along the fence on the left-hand side of the

property surrounding J.B.’s home, and the .20 gauge shotgun taken from the

residence. Corporal Martin testified that J.B.’s jacket, shirt, jeans and sneakers seized

the morning of his arrest were all tested for the presence of blood stains, and no such

stains were found. Id. at 123-24. No fingerprints or DNA material were found on the

spent shotgun shell. Forensic examination of the shotgun itself revealed no latent

fingerprints on the weapon, and no blood was detected in the interior of the shotgun

barrel, on the exterior of the barrel, or on the frame of the shotgun. Id. at 122.

C.B. testified at the adjudication hearing that he, the victim, J.B., and her

daughters all had a close relationship and that J.B.’s relationship with the victim was

“[j]ust as normal as it was between her and her own daughters.” Id. at 141. With

respect to the use of firearms on the property, C.B. related that he would quite

frequently shoot guns in the area of the property located in front of the house near

where the work crew parked on the morning of February 20, 2009. Id. at 142. C.B. also

described his and J.B.’s participation in a turkey shoot at an indoor shooting range on

Saturday, February 14, 2012 — less than a week before the .20 gauge shotgun was

seized. Id. at 143, 182-83. C.B. recalled that J.B. used the .20 gauge shotgun in the

turkey shoot and that he loaded and unloaded the shotgun for J.B. each time it was

fired. Id. at 145.14 C.B. also recounted that, because it was a cold winter evening, and

14
Trooper Wilson confirmed J.B.’s participation in the “turkey shoot” with the .20 gauge
shotgun. N.T. Adjudication Hearing, 4/11/12, at 102.

[J-10-2014] - 21
the shoot took place in a large garage like structure, J.B. was wearing his winter coat

during the entirety of the shoot, which was the same coat he was wearing on the day of

his arrest. Id. at 146.

C.B. further testified that he and the victim chose to have an unlisted phone

number at their house in order to ensure that Adam Harvey could not contact them. Id.

at 149. C.B. related that he listened to 10-12 voicemails Harvey had left on the victim’s

cellphone, in which Harvey threatened the victim and her family, and that the victim

feared Harvey. Id. at 149, 177. C.B. had no personal knowledge of whether Harvey

knew where he and the victim lived. Id. at 174.

Adam Harvey testified at the adjudication hearing as well. He denied making

threatening phone calls to the victim and denied the averments in the victim’s PFA

petition which led to the entry of the PFA order against him. Id. at 200-01. Harvey also

stated that he was not upset about the blood test results which showed he was not the

father of A.H. Id. at 207. Harvey admitted seeing the victim’s parents on the evening of

February 19, 2009, as he was walking out of a nightclub while picking up an order of

chicken wings, and that he was told to leave. Id. at 208. Harvey claimed that he went

home thereafter to his parents’ house, where he was living in the basement, which was

accessible through a side door on the upstairs floor. He denied going out at all on the

night of February 20, and he stated that he did not leave his parent’s home until

somewhere around 9:00 the next morning to return an automotive part to a store. Id. at

211-12. Harvey disavowed knowing where the victim was living, although he

acknowledged having told the state police that people had previously informed him she

was living “somewhere in Wampum.” Id. at 210.

[J-10-2014] - 22
 II. Procedural History

On April 12, 2012, the juvenile court entertained oral argument from counsel for

J.B. and the Commonwealth regarding the evidence adduced at the adjudication

hearing. The following day, April 13, 2012, the juvenile court — pursuant to Pa.R.J.C.P.

408(A) — issued written findings of fact adjudicating J.B. delinquent of the charge of

criminal homicide, 18 Pa.C.S.A. 2501(a), for the death of the victim, and delinquent of

the charge of criminal homicide of an unborn child, 18 Pa.C.S.A. 2603(a), for the death

of the unborn fetus.

Thereafter, on April 20, 2012, the juvenile court filed an opinion supplementing

the previous findings of fact and conclusions of law it made in support of its delinquency

adjudication. In this opinion, the court cited as a reason for determining that J.B.

committed the killing the fact that the .20 gauge shotgun taken from J.B.’s upstairs

bedroom was “established to be the murder weapon.” Trial Court Opinion, 4/20/12, at

12. The court also noted that the clothing which J.B. was wearing when he left for

school “had gunshot residue on the right side of his shirt and the left side of his jeans.”

Id. at 12-13.

The court gave the following reasons for excluding Adam Harvey as a suspect:

its finding that “[t]he Pennsylvania State Police promptly located Adam Harvey on the

morning of February 20, 2009;”15 when the police stopped him near his parents’ house

15
As stated earlier in this opinion, Trooper Caimona testified that he pulled Harvey over
at 1:20 p.m. in the afternoon of February 20, 2009, which he noted in his report. N.T.
Adjudication Hearing, 4/11/12, at 221, 223, 226.

[J-10-2014] - 23
“the hood and roof of his vehicle were covered with snow and the engine was cold;”16

the lack of gunshot residue on Harvey’s hands; and his averment that he did not know

where the victim lived, coupled with the fact that there was no other evidence presented

to establish that he had such knowledge. Id. at 13.

The court also found there was a lack of evidence suggesting anyone else

entered the residence on the morning of February 20, 2009. The court found that “[t]he

only imprints observed in the snow on that morning were the children’s footprints

leading from the house to the bus stop. There was no indication that another person

approached the residence, either by foot or in a vehicle after the children left and before

Mr. Cable arrived with his employees.” Id. at 14. The court stated that it “especially

consider[ed] the absence of any unaccounted for footprints or tire tracks around the

home.” Id. at 15. The court also relied on “the time period after the arrival of Steve

Cable and his tree service employees, during which time no one was seen approaching

or leaving the residence, and the forensic testimony of Dr. James Smith, Elana Somple

and David Burlingame.” Id. The court determined that, based on all of this evidence,

the Commonwealth had proved its case beyond a reasonable doubt.

The juvenile court held a dispositional hearing on May 18, 2012, after which it

committed J.B. to a secured residential treatment facility. The commitment order stated

that J.B. had the right to file a post-dispositional motion within 10 days, but, tracking the

language of Pa.R.J.C.P. 620(A)(2),17 also stated that “[i]ssues raised before and during

16
Harvey testified that he had warmed his truck up before leaving his parents’ house.
N.T. Adjudication Hearing, 4/11/12, at 213, and Trooper Caimona did not offer any
opinion as to the temperature of its engine at the time he pulled the truck over.
17
Rule 620 provides:
(continued…)

[J-10-2014] - 24
adjudication shall be preserved for appeal whether or not you elect to file a post-

dispositional motion.” Juvenile Court Order, 5/18/12, at 3 ¶ 16. J.B. did not file a post-

dispositional motion.

Instead, J.B. filed a notice of appeal from the dispositional order, following which

the juvenile court directed J.B. to prepare and file a statement of matters complained of

on appeal pursuant to Pa.R.A.P. 1925(b). J.B. timely lodged his statement of matters

complained of on appeal with the juvenile court, in which he alleged that the

adjudication of his delinquency was against the weight of the evidence for the following

reasons:

(1) The lack of forensic evidence indicating that a .20 gauge
shotgun recovered from J.B.’s family home was, in fact, the
murder weapon used to kill the victim;

(2) The absence of any forensic evidence indicating that J.B.
either handled or fired the .20 gauge shotgun the morning of
the murder inside the family home;

(3) The fact that no blood or tissue residue was found on
J.B.’s person or clothing after forensic examination thereof;

(4) The fact that only two particles of gunshot residue were
discovered on J.B.’s clothing after forensic examination —
one on the right side of his shirt and the other on the left side

(…continued)
Rule 620. Post-Dispositional Motions
A. Optional Post-Dispositional Motion.
(1) The parties shall have the right to make a post-dispositional motion. All
requests for relief from the court shall be stated with specificity and
particularity, and shall be consolidated in the post-dispositional motion.
(2) Issues raised before or during the adjudicatory hearing shall be
deemed preserved for appeal whether or not the party elects to file a post-
dispositional motion on those issues.
Pa.R.J.C.P. 620.

[J-10-2014] - 25
of his jeans — regarding which the forensic analyst testified
“[were] likely and possibly the result of transference; that it
was likely that much more extensive residue would have
been found on the clothing had a shotgun been discharged
indoors, rather than outdoors; and that particles of gunshot
residue can stay on . . . clothing for weeks or even months;”

(5) The juvenile court placed undue emphasis in its
adjudication regarding the absence of observations of tire
tracks and footprints in snow around the victim’s home that
morning, as neither law enforcement personnel nor
employees of a tree cutting service which was on the
property the morning of the murder “looked for or placed any
significance whatsoever on footprints or tire tracks;”

(6) The juvenile court ignored the following uncontradicted
evidence of record adduced at the delinquency hearing
regarding the timeline of events in the family home on the
morning of the murder which, according to J.B.,
demonstrated that he lacked sufficient time or opportunity to
have committed it:

[B]oth children were hurriedly getting ready for
school; that the victim called out from her
bedroom for the children to hurry up because
the bus was going to be coming; that, soon
thereafter, at approximately 8:15 a.m., they
both left the house and ran off to catch the
school bus; that nothing out of the ordinary
happened that morning before their departure;
and that (per the testimony of the bus driver),
they behaved as they normally did during the
bus ride to school. . . . Nevertheless the court
essentially concluded that, before departing for
the bus, J.B. went upstairs to his bedroom,
retrieved his shotgun, came downstairs, went
into the bedroom where the victim was lying on
her bed, opened an armoire and retrieved a
box of ammunition, loaded his shotgun and
shot his father’s fiancée in the back of her head
at near contact range, exited from the
bedroom, went back upstairs, replaced his gun

[J-10-2014] - 26
 and then ran off with the victim’s 7 year old
daughter to catch the school bus.

Concise Statement of Errors Complained of on Appeal, 8/2/12, at 1-3.

The juvenile court did not find J.B.’s weight of the evidence claim waived due to

his failure to file a post-dispositional motion. Instead, the juvenile court ruled that J.B.’s

weight of the evidence claim had been “adequately addressed . . . in its Findings of Fact

and Conclusions of Law issued on April 13, 2012 and supplemental Opinion issued on

April 20, 2012.” Juvenile Court Order, 8/8/12, at 1.

In its comprehensive and well-written opinion adjudicating J.B.’s direct appeal, In

re J.B., 69 A.3d 268 (Pa. Super. 2013), the Superior Court first considered the

Commonwealth’s claim that J.B.’s weight of the evidence claim was waived due to

J.B.’s failure to raise it in a post-dispositional motion. The court acknowledged its prior

precedent of In re R.N., 951 A.2d 363 (Pa. Super. 2008) (holding that juvenile had failed

to preserve his weight of the evidence claim for appellate review since he did not raise it

at any point during the adjudication or dispositional hearings); however, the court noted

that case was decided prior to our Court’s promulgation of Pa.R.J.C.P. 620, and, thus,

the application of that rule was not considered therein.

Further, the court noted that, in its view, our Court’s decision in the case of In re

D.S., 39 A.3d 968 (Pa. 2012) — in which we declined to find appellate waiver of a

juvenile’s sufficiency of the evidence challenge whenever he failed to file an optional

post-dispositional motion under Pa.R.J.C.P. 620 — “calls into question the continued

validity of R.N. to such an extent that we do not believe R.N. remains good law.” In re

J.B., 69 A.3d at 275. The court highlighted the three reasons proffered by our Court in

In re D.S. for refusing to find waiver of the juvenile’s sufficiency claim: (1) Pa.R.J.C.P.

[J-10-2014] - 27
620 makes the filing of post-dispositional motions optional; thus, a juvenile should not

be sanctioned for failing to file such an optional motion raising an appellate issue; (2)

juvenile defendants cannot seek relief for waived claims under the Post Conviction

Relief Act (“PCRA”);18 and (3) the juvenile court may provide its analysis of the

sufficiency claim in its Pa.R.A.P. 1925(a) opinion, which an appellate court can review

de novo, as such a claim involves a pure question of law. The court found these

reasons applied equally to preclude it from finding that J.B.’s weight of the evidence

claim was waived.

The court explained that, while Pa.R.Crim.P. 607(a)19 specifies that weight of the

evidence claims in criminal proceedings are waived unless they are raised with the trial

court in a motion for a new trial, the Pennsylvania Rules of Juvenile Procedure have no

counterpart requiring the same manner of preservation. The court found that the only

other rule of procedure which could possibly apply to render J.B.’s claim waived was

Pa.R.A.P. 302(a), which provides that “[i]ssues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a). The court,

however, refused to apply this rule as it regarded such application to be “a sanction

against the juvenile defendant for the failure to file an optional post-adjudication motion,”

which the court deemed our In re D.S. decision to prohibit. In re J.B., 69 A.3d at 276.

The court further determined that, if it found J.B.’s weight claim waived due to his

counsel’s failure to preserve it, he would have no recourse to seek PCRA relief, which

would be a harsher result than that faced by an adult criminal defendant whose weight

18
42 Pa.C.S.A. §§ 9541-9546.
19
See infra at p. 40.

[J-10-2014] - 28
claim was waived on direct appeal for the same reason. Next, the court found that the

juvenile court “addressed J.B.’s weight of the evidence arguments in its Pa.R.A.P.

1925(a) opinion,” by incorporating, in that opinion, its prior findings of fact from its order

of April 13, 2012 and its reasons for adjudicating J.B. delinquent, set forth in its opinion

of April 20, 2012. In re J.B., 69 A.3d at 276. Thus, the court perceived no obstacle to its

review of the weight of the evidence claim. Lastly, to the extent that the court

considered In re R.N. to have any continuing viability after In re D.S., the court

distinguished that decision, noting that, in that case, the juvenile did not raise any

defenses or arguments at the adjudication hearing, whereas the court found that, by

contrast, J.B., in his closing argument to the juvenile court, “presented precisely the

same arguments . . . that he now asserts on appeal in support of his weight of the

evidence claim.” Id. Consequently, the court reasoned that, because J.B. had raised

these arguments before the juvenile court, Rule 620(A)(2) did not require him to raise

them again in a post-dispositional motion.

The court proceeded to review, on the merits, J.B.’s claim that his adjudication

was against the weight of the evidence. The court, relying primarily on our decision in

Commonwealth v. Clay, 64 A.3d 1049 (Pa. 2013), confined its review to examining the

evidence in the certified record to determine whether it supported certain findings of fact

made by the juvenile court relied upon in its adjudication, or whether the juvenile court

abused its discretion. The court first determined that the juvenile court’s finding of fact

that no other person approached the residence due to the “absence of any unaccounted

for foot prints or tire tracks around the home” was not supported by the evidence of

record introduced at the adjudicatory hearing. In re J.B., 69 A.3d at 279. The court

[J-10-2014] - 29
noted that the testimony of Gary Cable regarding any imprints in the snow that he saw

was confined to his observations of the two sets of small footprints in the middle of the

driveway, and that he did not provide any other testimony regarding observing imprints

in the snow anywhere else on the property. The court further observed:

No witness (including any of the police officers first arriving
on the scene) testified to observing an absence of footprints
on the property that morning, on any side of the residence,
or at or around any of its four entrances. No witness even
testified to making an attempt to look for footprints in the
snow (or the absence of the same), and no photographs of
undisturbed snow anywhere on the property (including at
either of the entrances to the residence) were entered into
evidence. In point of fact, other than Cable's unremarkable
testimony regarding the children's footprints in the driveway,
the record on appeal in this case does not establish any
basis for any finding regarding the presence or absence of
footprints in the snow anywhere on the property.

Id. at 280. Thus, the court held that the juvenile court’s finding of fact that no person

entered the residence on the morning of February 20, 2009 until after the victims’ body

was discovered was erroneous and should be disregarded. Id.

The court next examined the evidence of record to determine if it supported the

trial court’s conclusion that “no one was seen approaching or leaving the residence”

after Cable and his employees arrived at around 9:00 a.m. Id. The Court concluded

that the record did not support this finding either, as neither Cable, nor any other

witness, provided evidence on this issue. To the contrary, the evidence established that

Cable and his work crew remained at all times in the area between the edge of the

woods and the front of the house, and he did not testify as to whether he could see all

four of the entrances to the home from the time he came onto the property until the

arrival of the police. Also, the court emphasized that “[t]he Commonwealth presented

[J-10-2014] - 30
no evidence to establish whether or not anybody entered or exited the residence during

[the] 45 minute span from 8:15 a.m. until approximately 9:00 a.m.” when Cable arrived.

Id. at 281 (parentheses omitted).

The court observed that the juvenile court relied on these findings of fact to

conclude that “the Commonwealth’s evidence precluded the possibility that someone

could have approached the residence on the morning of February 20, 2009 and killed

[the victim] and her unborn child.” Id. Hence, these findings of fact played a substantial

part in the juvenile court’s decision that J.B. committed the homicides for which he was

charged. Id. In the court’s view, because these findings lacked support in the record,

the juvenile court “committed a palpable abuse of discretion in rendering a ruling that is

plainly contrary to the evidence.” Id. Accordingly, the court vacated the dispositional

order and remanded for further proceedings.

The court did not address whether the remaining evidence of record was of

adequate weight to sustain the juvenile court’s finding that J.B. committed the killings.

The court stated, in this regard, “[w]e do not know and cannot speculate whether the

remaining evidence would support the finding or, instead, shock the conscience of the

juvenile court. Thus, our review ends because counsel for J.B. has not asserted a

sufficiency of the evidence claim on appeal.” Id.

After the Commonwealth sought review from our Court, we granted allowance of

appeal to consider the following three questions:

(1) Did the Superior Court's holding that the law of waiver
does not apply to the failure to file a post-dispositional
motion seeking a new adjudication hearing based on the
weight of the evidence contradict a prior holding of a panel of
the Superior Court that may not be overturned by a

[J-10-2014] - 31
 subsequent panel, based on a holding of this court that does
not apply to the circumstances of this case?

(2) Is a closing argument not an acceptable substitute for a
post-dispositional motion for a new adjudication hearing
based on the weight of the evidence because the purposes
of each event vary and because the standard of review
requires a motion?

(3) Does the record supports [sic] the juvenile court's
ultimate conclusion that no other persons were present in
the house where the crime occurred and that J.B. was the
person who committed the delinquent act, such that the
verdict does not shock one's sense of justice?
In re J.B., 83 A.3d 408 (Pa. 2013).

III. Arguments of the Parties

Because we find the first two issues dispositive, we begin by briefly recounting

the arguments of the parties with respect thereto. The Commonwealth first argues that

the panel below improperly found In re R.N. to no longer be good law and thereby

purported to overrule it, which, as a panel of the Superior Court, it could not do as one

panel of that tribunal cannot overrule another panel. The Commonwealth asserts that,

under In re R.N., a juvenile is required to raise an issue before the juvenile court, or it is

waived for appeal. The Commonwealth posits that our Court’s decision in In re D.S. did

not overrule In re R.N. since In re D.S. dealt with the issue of the proper preservation of

a sufficiency of the evidence claim, not a weight one. Thus, the Commonwealth

reasons In re R.N. still remains good law with respect to the necessity of presenting

weight claims to the juvenile court for preservation, and, because J.B. did not file a post-

dispositional motion presenting the claim, even though optional, his claim is waived.

The Commonwealth further distinguishes In re D.S. on the grounds that a

sufficiency of the evidence claim has a constitutional dimension, as any conviction

which is not supported by legally sufficient evidence violates the convicted individual’s

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due process rights under the Fourteenth Amendment. By contrast, according to the

Commonwealth, there is no similar constitutional concern implicated in a weight of the

evidence claim. Additionally, the Commonwealth points out J.B. is currently detained in

a secure facility so he could seek relief for waiver of his claim by filing a petition for a

writ of habeas corpus, whereas the juvenile in In re D.S. could not. Finally, the

Commonwealth notes that a weight of the evidence claim does not involve a pure

question of law, but, rather, challenges the trial court’s exercise of discretion; hence, in

its view, it logically follows there must first be a decision of the trial court in which it

exercised its discretion by ruling on the weight of the evidence, so that an appellate

court may review it.

The Commonwealth also rejects the suggestion that a weight of the evidence

claim may be raised in a closing argument, as that would conflict with the well-settled

principle of law that an issue may not be raised at any other time than as established by

law, and that, pursuant to In re R.N., a post-dispositional motion is the proper way to

preserve a weight of the evidence claim, analogous to the filing of a post sentence

motion to preserve a weight of the evidence claim in a criminal matter. Further, the

Commonwealth highlights the different purposes served by a closing argument and a

motion relating to the weight of the evidence. In the Commonwealth’s view, a closing

argument is undertaken to convince the fact-finder to make an initial determination in

favor of the arguing party, based on the evidence of record and suggested credibility

determinations; whereas, a post-hearing motion asks the trial judge to examine the

record and determine whether a prior determination offends the court’s sense of justice.

The Commonwealth argues that to judicially allow a closing argument to substitute for a

post-decisional motion, as the Superior Court has done, would be an exercise in

procedural rulemaking which usurps our Court’s authority to exclusively promulgate

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rules governing juvenile court procedure pursuant to Article V, Section 10 of the

Pennsylvania Constitution. In sum, the Commonwealth contends that J.B. never

presented his claim to the juvenile court, and that, consequently, we should find it

waived.

J.B. responds by asserting that the three reasons given by our Court in In re D.S.

for not finding the juvenile’s sufficiency of the evidence claim waived are equally

applicable to his case, and they also support a similar finding that his weight of the

evidence claim was not waived. Echoing the rationale of the Superior Court decision

below, he argues that the filing of a post-dispositional motion was optional in his case;

finding his claim waived would cause a harsher result than for a similarly-situated adult

defendant, and the juvenile court addressed his weight of the evidence claim in its

Pa.R.A.P. 1925(a) opinion so there is no impediment to appellate review. J.B. avers

that the Commonwealth’s attempt to distinguish In re D.S. on the grounds that it

involved the sufficiency of the evidence is unavailing since “each [of these cases] deals

with [the] juvenile court process and the constitutional right to due process more

generally, and not with the type of appeal brought before this court.” Appellee’s Brief at

15.

J.B. argues that, even under the holding of In re R.N., his claim is not waived,

inasmuch as all that case requires for a juvenile litigant to avoid a finding of waiver of a

particular issue is that the juvenile has raised the issue to the juvenile court. J.B.

maintains that he did raise his weight of the evidence issue to the juvenile court during

the adjudication in his closing argument, and that post-dispositional motions are, by the

terms of Pa.R.J.C.P. 620, merely optional. J.B. urges we not render the commands of

that rule moot by endorsing the Commonwealth’s view that a post-dispositional motion

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is required, even when, as here, a weight of the evidence claim is otherwise raised to

the juvenile court.

IV. Analysis

The question of whether J.B. waived appellate review of his weight of the

evidence claim is a question of law, and, accordingly, our standard of review is plenary.

Pocono Manor Investors, LP v. Pennsylvania Gaming Control Bd., 927 A.2d 209, 216

(Pa. 2007). Further, “[t]he general rule in this Commonwealth is that a weight of the

evidence claim is primarily addressed to the discretion of the judge who actually

presided at trial.” Armbruster v. Horowitz, 813 A.2d 698, 702 (Pa. 2002);

Commonwealth v. Edwards, 903 A.2d 1139, 1148 (Pa. 2006). In reviewing a trial

court’s adjudication of a weight of the evidence claim, “an appellate court determines

whether the trial court abused its discretion based upon review of the record; its role is

not to consider the underlying question in the first instance.” Commonwealth v.

Blakeney, 946 A.2d 645, 653 (Pa. 2008). Thus, a weight of the evidence claim must be

presented to the trial court so that it may address it in the first instance. Commonwealth

v. Widmer, 689 A.2d 211, 212 (Pa. 1997). See also Commonwealth v Karkaria, 625

A.2d 1167, 1170 n.3 (Pa. 1993) (“An allegation that the verdict is against the ‘weight’ of

the evidence is a matter to be resolved by the trial court.”).

Once a weight of the evidence claim has been presented to the trial court, it then

reviews the evidence adduced at trial and determines whether “notwithstanding all the

facts, certain facts are so clearly of greater weight that to ignore them or to give them

equal weight with all the facts is to deny justice.” Clay, 64 A.3d at 1055. A trial court

should award a new trial if the verdict of the fact finder “is so contrary to the evidence as

to shock one’s sense of justice and the award of a new trial is imperative so that right

may be given another opportunity to prevail.” Id. Stated another way, “[a] weight of the

[J-10-2014] - 35
evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks

a new trial on the ground that the evidence was so one-sided or so weighted in favor of

acquittal that a guilty verdict shocks one's sense of justice.” Commonwealth v. Lyons,

79 A.3d 1053, 1067 (Pa. 2013). These principles have been deemed equally applicable

to the adjudication of weight of the evidence challenges brought in juvenile court

proceedings. McElrath v. Commonwealth, 592 A.2d 740, 745 (Pa. Super. 1991).

Consequently, in order for J.B.’s weight of the evidence claim to have been

preserved for appellate review, he needed to present the claim in some manner to the

juvenile court so that it could adjudicate it in the first instance. It is uncontested that J.B.

did not file a post-dispositional motion raising this claim, although post-dispositional

motions are deemed optional under Pa.R.J.C.P. 620. Further, we agree with the

Commonwealth that J.B. could not raise a weight of the evidence challenge in his

closing argument. In the context of a juvenile matter, a weight of the evidence claim

may not be raised via closing argument, inasmuch as it is a matter of plain logic that a

claim that an adjudication of delinquency is against the weight of the evidence

presupposes that the juvenile court has already made such a final adjudication. Closing

argument by a juvenile in a delinquency proceeding, which takes place prior to final

adjudication, is geared towards convincing the trier of fact that the evidence adduced at

the hearing does not prove, beyond a reasonable doubt, that the juvenile was

delinquent of the criminal offenses charged. By contrast, a weight of the evidence

challenge in a juvenile matter assumes the evidence was sufficient to adjudicate the

juvenile delinquent beyond a reasonable doubt, but asks the juvenile court to reassess

its adjudication to determine whether certain facts of record are so weighty that they

warrant the grant of a new adjudication hearing.

[J-10-2014] - 36
 J.B. did, however, present his weight of the evidence claim to the juvenile court in

his Pa.R.A.P 1925(b) statement. The question, then, is whether this manner of

presentation, coupled with the fact that the juvenile court ruled on it in its Pa.R.A.P.

1925(a) opinion, sufficiently preserved his claim for appellate review. The Juvenile

Rules of Court Procedure do not, at present, specify how a juvenile who has been

adjudicated delinquent must present a weight of the evidence claim to the juvenile court

so that the claim is preserved for appellate review. However, in a procedurally identical

matter, our Court, in Widmer, supra, addressed, in the context of criminal proceedings,

a similar gap in the procedural rules governing presentation and appellate review of a

weight of the evidence claim. Therein, our Court unanimously refused to find a criminal

defendant’s weight of the evidence claim waived where it was raised in the defendant’s

statement of matters complained of on appeal and ruled on by the trial court. Principles

of fundamental fairness and equal administration of justice demand that we treat J.B.’s

case in the identical manner.

By way of background, prior to 1994, in order to preserve any issue for appellate

review, a criminal defendant had to present the issue to the trial court in a written post-

verdict motion. See, e.g., Commonwealth v. Metz, 633 A.2d 125, 127 (Pa. 1993). In

1994, the Rules of Criminal Procedure were amended to make such motions optional,

which allowed a defendant, once his or her judgment of sentence became final, to

bypass the filing of such motions altogether and proceed immediately to file a direct

appeal. To achieve this result, Pa.R.Crim.P. 1410, now renumbered as Pa.R.Crim.P.

720, was promulgated by our Court and became effective January 1, 1994. This rule

provided, in relevant part, that a defendant retained the right to make an optional post-

sentence motion after a verdict of guilty had been rendered and sentence pronounced,

but that “[i]ssues raised before or during trial shall be deemed preserved for appeal

[J-10-2014] - 37
whether or not the defendant elects to file a post-sentence motion on those issues.”

Pa.R.Crim.P. 1410(B)(1)(c). However, neither that rule, nor any other Rule of Criminal

Procedure, required the filing of a post-sentence motion to present a weight of the

evidence claim to the trial court, so that it could consider the claim in the first instance.

The rules were altogether silent on this subject, even though “challenges to the weight

of the evidence can never be raised ‘before or during trial’; rather such challenges can

only be raised after trial.” Widmer, 689 A.2d at 213 (Cappy, J., concurring) (emphasis

original). Thus, the criminal rules offered no clear guidance on how to present a claim

challenging the weight of the evidence to the trial court, so that the trial court’s exercise

of discretion in ruling on the claim could be reviewed by an appellate court. See, e.g.,

Commonwealth v. Brown, 648 A.2d 1177 (Pa. 1994) (requiring that a weight of the

evidence claim be presented to the trial court in the first instance, and clarifying that

appellate review of a weight of the evidence claim is limited to review of the trial court’s

exercise of discretion in deciding the claim presented to it).

In Widmer, following his conviction for rape, the defendant did not file post-

sentence motions, but, instead, as permitted by former Pa.R.Crim.P. 1410, immediately

took a direct appeal to the Superior Court. In his Pa.R.A.P. 1925(b) statement, he

challenged the weight of the evidence. The trial court addressed the claim in its Rule

1925(a) opinion and found that the verdict was contrary to the weight of the evidence,

but noted that it was deprived of jurisdiction to take any further action due to the appeal.

On appeal, the Superior Court did not review the trial court’s ruling on the weight of the

evidence claim; instead, it found that the defendant had waived appellate review of the

claim by failing to raise it in the trial court. Our Court granted allowance of appeal to

consider the impact of Pa.R.Crim.P. 1410(B)(1)(c) on this finding of waiver.

[J-10-2014] - 38
 In a unanimous opinion, our Court reversed. Highlighting the fact that the

defendant raised his weight of the evidence claim in his Pa.R.A.P. 1925(b) statement,

we emphasized that this was not a case where the defendant failed to present the claim

to the trial court in the first instance, and, as a result, there was “no need for the

Superior Court to review a cold record and make an initial determination concerning the

weight of the evidence.” Widmer, 689 A.2d at 212. Consequently, we deemed it error

for the Superior Court “to rule that [the defendant’s] failure to file a post-sentence motion

for a new trial had the effect of waiving his claim that the verdict was contrary to the

weight of the evidence.” Id. Accordingly, we remanded the case to the trial court to

permit the defendant to file, nunc pro tunc, a motion challenging the weight of the

evidence and seeking a new trial on that basis.

Then-Justice Cappy concurred, observing that “fairness dictates that the instant

case be remanded to the trial court and [the defendant be] permitted to file a motion for

a new trial nunc pro tunc challenging the weight of the evidence.” Id. at 213 (Cappy, J.,

concurring). However, Justice Cappy also suggested the Criminal Procedural Rules

Committee address this “clear void” in the rules and propose remedial amendments to

clarify that weight of the evidence claims must be raised first in the trial court, or else be

deemed waived. Id. His sense of urgency was compelled by his prediction that there

would be instances where a weight of the evidence challenge raised in a Pa.R.A.P.

1925(b) statement would either be reviewed in a cursory fashion by the trial court in its

Rule 1925(a) opinion, or not addressed at all. Id. In Justice Cappy’s view, “given the

language of [former] rule 1410 as it now stands, a defendant caught in those

circumstances should not be denied his or her right to challenge the weight of the

evidence.” Id.

[J-10-2014] - 39
 Towards this end, eight months after Widmer was decided, our Court

promulgated Pa.R.Crim.P. 1124A, now renumbered as Pa.R.Crim.P. 607. This rule

provides:
Rule 607. Challenges to the Weight of the Evidence

(A) A claim that the verdict was against the weight of the
evidence shall be raised with the trial judge in a motion for a
new trial:

(1) orally, on the record, at any time before sentencing;
(2) by written motion at any time before sentencing; or
(3) in a post-sentence motion.

Pa.R.Crim.P. 607. Consequently, in criminal proceedings, this rule eliminates any

uncertainty regarding how a weight of the evidence claim is to be presented to the trial

court by providing that it must be raised either orally or by written motion before

sentencing, or by written motion after sentencing. The comment to the rule also

specifically warns litigants of the consequence of waiver of appellate review if these

procedures are not followed. See Pa.R.Crim.P. 607, Comment (“The purpose of this

rule is to make it clear that a challenge to the weight of the evidence must be raised with

the trial judge or it will be waived.”).

Like the Rules of Criminal Procedure at issue in Widmer, the current Rules of

Juvenile Court Procedure — which “govern delinquency proceedings in all courts”20 —

are utterly silent as to how a weight of the evidence claim must be presented to the

juvenile court so that it may rule on the claim in the first instance, which is, as discussed

above, a necessary prerequisite for appellate review. Further, Pa.R.J.C.P. 620(A)(2),

which governs the filing of what it expressly designates as an “optional post-

20
Pa.R.J.C.P. 100(A).

[J-10-2014] - 40
dispositional motion,” uses language nearly identical to that of former Pa.R.Crim.P.

1410(B)(1)(c), which stated, “[i]ssues raised before or during trial shall be deemed

preserved for appeal whether or not the defendant elects to file a post-sentence motion

on those issues.” See Pa.R.J.C.P. 620(A)(2) (“Issues raised before or during the

adjudicatory hearing shall be deemed preserved for appeal whether or not the party

elects to file a post-dispositional motion on those issues.”).

As a result, J.B., just as the defendant in Widmer, faced procedural rules that

made optional the filing of a post-dispositional motion, and which did not otherwise

specify how a weight of the evidence claim was to be presented in the first instance to

the juvenile court in order to preserve it for appellate review. Also, as did the defendant

in Widmer, J.B. presented his weight of the evidence claim to the lower court by raising

it in his Pa.R.A.P. 1925(b) statement, in which he comprehensively set forth specific

reasons why, in his view, the juvenile court’s adjudication was against the weight of the

evidence.

Just as the trial court did in Widmer, the juvenile court here considered J.B.’s

weight of the evidence claim, and then ruled on it in its Rule 1925(a) opinion. We must,

therefore, treat J.B.’s weight of the evidence claim in the same manner as we did the

defendant’s claim in Widmer, in other words, find that it is not waived and remand this

case to allow J.B. to file a post-dispositional motion nunc pro tunc seeking a new

adjudication hearing on the grounds that his adjudication of delinquency was against the

weight of the evidence. Principles of fundamental fairness and equal administration of

justice demand that such similarly-situated litigants be treated in the same fashion.

See, e.g., Commonwealth v. Castillo, 888 A.2d 775, 779 (Pa. 2005) (refusing to

[J-10-2014] - 41
interpret Pa.R.A.P. 1925(b) in a manner that would “yield unsupportable distinctions

between similarly situated litigants.”); Commonwealth v. Marshall, 810 A.2d 1211, 1230

(Pa. 2002) (Castille, J., concurring and dissenting). (“[T]he most dire circumstance that

can characterize a high Court's appellate jurisprudence: an inconsistent approach to

similarly-situated litigants.”).

Indeed, the approach we took in Widmer is even more justified in the instant

matter because this is a juvenile proceeding. As our Court emphasized in In re D.S.,

and as the Superior Court panel recognized below, a finding of waiver in juvenile

proceedings has a harsher consequence for a juvenile than a similarly-situated criminal

defendant, inasmuch as if a “claim is found to be waived on appeal, the juvenile cannot

raise such a challenge under the [PCRA] because that act does not, by its terms, apply

to juvenile proceedings.” Id. at 973. Thus, the absence of that avenue of collateral

relief for J.B. provides a stronger reason to decline to impose waiver in this matter.

In sum, because we conclude that finding J.B.’s weight of the evidence claim to

be waived under these circumstances would be manifestly unjust — a state of affairs

our Court recognized in Widmer was unacceptable — principles of fundamental justice

and sound reason counsel that our Court take the same prudent path in the instant

matter, and remand this matter to the juvenile court to allow J.B. to file a post-

dispositional motion nunc pro tunc.21 22

21
Given our resolution of this issue warrants a remand to the juvenile court, we need
not address the Commonwealth’s remaining argument on appeal that the Superior
Court erred in deeming J.B.’s weight of the evidence claim meritorious.
22
Because this case has highlighted a gap in procedural rules promulgated by our
Court, we also direct our Juvenile Court Rules Committee to address as rapidly as
feasible appropriate curative amendments.

[J-10-2014] - 42
 Order of the Superior Court is vacated, and this matter is remanded to the

Lawrence County Court of Common Pleas Juvenile Court for further proceedings

consistent with this Opinion. Jurisdiction is relinquished.

Former Justice McCaffery did not participate in the decision of this case.

Mr. Chief Justice Castille and Messrs. Justice Eakin and Baer join the opinion.

Mr. Chief Justice Castille files a concurring opinion.

Mr. Justice Saylor files a concurring and dissenting opinion.

Mr. Justice Stevens files a dissenting opinion.

[J-10-2014] - 43