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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: B.R., JUVENILE, IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: B.R.,
Appellant No. 1636 WDA 2014
Appeal from the Dispositional Order Entered September 4, 2014
In the Court of Common Pleas of Clearfield County
Criminal Division at No(s): CP-17-JV-0000068-2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and WECHT, JJ.
MEMORANDUM BY SHOGAN, J.: FILED MAY 1, 2015
B.R. (“Appellant”) appeals from the dispositional order entered
following his adjudication of delinquency on charges of theft by unlawful
taking and receiving stolen property. Appellate counsel has filed a petition
to withdraw his representation and a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), and Commonwealth v. Santiago, 978
A.2d 349 (Pa. 2009), which govern a withdrawal from representation on
direct appeal. We grant counsel’s petition to withdraw and affirm the
dispositional order.
The trial court summarized the factual and procedural history of this
case as follows:
On May 24th, 2014, [Jon] C. Mikesell’s son parked his
bicycle in front of the Clearfield YMCA. Trial Transcr. 5:4
(Sept. 4, 2014). The bicycle was then stolen. Id. at 5:9[.] In a
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bench trial held on Thursday, September 4th, 2014, B.R.
[(Appellant)] was adjudicated delinquent for the theft of that
bicycle. Id. at 41:7-15. At trial, [Appellant], who was
represented by counsel, testified on his own behalf. Id. at
24:11[.] [Appellant’s] father, Donald, also testified on his son’s
behalf. Id. at 34:19. The Commonwealth’s witnesses were
Officer Jacob A. Rhymstine, the investigating officer; and Jon C.
Mikesell (Mr. Mikesell). See generally Trial Transcr. (Sept. 4,
2014). Mr. Mikesell was not only the victim’s father, but also
[Appellant’s] guidance counselor at school. Trial Transcr. 7:16
(Sept. 4, 2014).
Mr. Mikesell testified as the Commonwealth’s first witness
with regard to the events on the day the bicycle was stolen and
the day Mr. Mikesell and his son discovered the bicycle in the
possession of [Appellant’s] brother and father. Trial Transcr. 3-
15 (Sept, 4, 2014). However, during the Commonwealth’s direct
examination, Mr. Mikesell indicated that he was [Appellant’s]
guidance counselor at school. Id. at 7:16. Following direct
examination by the Commonwealth, and cross-examination by
counsel for the defense, the Court questioned Mr. Mikesell
regarding [Appellant’s] attendance, performance, and behavioral
issues at school. Trial Transcr. 12-15 (Sept. 4, 2014).
Mr. Mikesell informed the Court that [Appellant] “had a very high
attendance problem and [Appellant] had some issues of not
wanting to go to class and some outbursts and things along
those lines.” Id. at 13:10-12. In summation, [Appellant] had
failed three classes the previous school year, had 40 unexcused
absences and 21 unexcused tardies. Id. at 13:14-14:7. During
the Court’s brief examination of Mr. Mikesell regarding
[Appellant’s] school performance, neither party objected to any
of the Court’s questions, nor to the testimony offered in
response. Following the Court’s inquiry, the Court offered the
witness to counsel for both parties for further questioning.
Counsel for both parties declined to ask any further questions of
Mr. Mikesell. Id. at 15:7-11.
The remaining witnesses, including [Appellant] and his
father, offered testimony which indicated that [Appellant] took
possession of the bicycle and intended to keep it. See Trial
Transcr. 15-41 (Sept. 4, 2014). The ultimate result of the trial
was that [Appellant] was adjudicated delinquent on the theft of
the bicycle, with a charge of receiving stolen property merging
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with the lead offense, and was placed on probation for one year
less one day. Trial Transcr. 41:7-42:2 (Sept. 4, 2014).
Trial Court Opinion, 12/2/14, at 1–2.
As noted, counsel has filed a petition to withdraw from representation.
Before we address the questions raised on appeal, we first must resolve
appellate counsel’s request to withdraw. Commonwealth v. Cartrette, 83
A.3d 1030 (Pa. Super. 2013) (en banc). There are procedural and briefing
requirements imposed upon an attorney who seeks to withdraw on appeal.
The procedural mandates are that counsel must:
1) petition the court for leave to withdraw stating that, after
making a conscientious examination of the record, counsel has
determined that the appeal would be frivolous; 2) furnish a copy
of the brief to the defendant; and 3) advise the defendant that
he or she has the right to retain private counsel or raise
additional arguments that the defendant deems worthy of the
court’s attention.
Id. at 1032 (citation omitted).
In this case, counsel has satisfied those directives. Within his petition
to withdraw, counsel averred that he conducted an examination of the
record. Following that review, counsel concluded that the present appeal is
frivolous. Counsel sent to Appellant a copy of the Anders brief and petition
to withdraw, as well as a letter, a copy of which is attached to the petition to
withdraw. In the letter, counsel advised Appellant that he could represent
himself or that he could retain private counsel to represent him.
We now examine whether the brief satisfies the Supreme Court’s
dictates in Santiago, which provide that:
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in the Anders brief that accompanies court-appointed counsel’s
petition to withdraw, counsel must: (1) provide a summary of
the procedural history and facts, with citations to the record; (2)
refer to anything in the record that counsel believes arguably
supports the appeal; (3) set forth counsel’s conclusion that the
appeal is frivolous; and (4) state counsel’s reasons for
concluding that the appeal is frivolous. Counsel should articulate
the relevant facts of record, controlling case law, and/or statutes
on point that have led to the conclusion that the appeal is
frivolous.
Cartrette, 83 A.3d at 1032 (quoting Santiago, 978 A.2d at 361).
Counsel’s brief is compliant with Santiago. It sets forth the history of
this case and outlines pertinent case authority. We thus conclude that the
procedural and briefing requirements for withdrawal have been met.
Counsel presents the following issues for our review:
I. Whether the Court of Common Pleas of Clearfield County
[hereinafter “Lower Court”] erred when, on September 4,
2014, it questioned Mr. John [sic] Mikesell concerning the
Juvenile’s school record during the Juvenile’s hearing,
which introduced irrelevant and prejudicial information into
the record.
II. Whether the Lower Court erred when, on September 4,
2014, it adjudicated the Juvenile delinquent on the charges
of Theft by Unlawful Taking (M2) and Receiving Stolen
Property (M2) and ordered its disposition, despite the lack
of sufficiency of [sic] evidence.
Anders Brief at 6.
The first issue challenges the trial court’s questioning of Mr. Mikesell as
resulting in the introduction of irrelevant and prejudicial information. The
trial court disposed of this issue succinctly:
Initially, the Court notes that counsel for neither party
objected to the trial Court’s line of questioning of Mr. Mikesell
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regarding [Appellant’s] school attendance and performance. In
fact, counsel was quite correct not to object, as nothing in the
line of questioning was improper or objectionable. However,
assuming arguendo that there even was a plausible objection to
be raised it must be noted that no objection actually was raised.
It is axiomatic that an objection or issue not timely raised, is
waived. Because [Appellant] raised no timely objection
contemporaneous to the trial Court’s line of questioning, the
issue is waived.
Trial Court Opinion, 12/2/14, at 3 (internal citations omitted). We agree.
Our rules of evidence require a contemporaneous objection in order to
preserve a claim of error in the admission of evidence:
(a) Preserving a Claim of Error. A party may claim error in a
ruling to admit or exclude evidence only:
(1) if the ruling admits evidence, a party, on the record:
(A) makes a timely objection, motion to strike, or motion
in limine; and
(B) states the specific ground, unless it was apparent from
the context. . . .
Pa.R.E. 103(a).
Here, the trial court found, and our review of the record confirms, that
defense counsel did not object to the line of questioning now challenged on
appeal. N.T., 9/4/14, at 12–15. Thus, the first issue is waived. Pa.R.E.
103.
The second issue challenges the sufficiency of the evidence supporting
the adjudication of delinquency. Our standard of review is as follows:
When a juvenile is charged with an act that would constitute a
crime if committed by an adult, the Commonwealth must
establish the elements of the crime by proof beyond a
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reasonable doubt. When considering a challenge to the
sufficiency of the evidence following an adjudication of
delinquency, we must review the entire record and view the
evidence in the light most favorable to the Commonwealth.
In determining whether the Commonwealth presented sufficient
evidence to meet its burden of proof, the test to be applied is
whether, viewing the evidence in the light most favorable to the
Commonwealth, and drawing all reasonable inferences
therefrom, there is sufficient evidence to find every element of
the crime charged. The Commonwealth may sustain its burden
of proving every element of the crime beyond a reasonable
doubt by wholly circumstantial evidence.
The facts and circumstances established by the Commonwealth
need not be absolutely incompatible with a defendant’s
innocence. Questions of doubt are for the hearing judge, unless
the evidence is so weak that, as a matter of law, no probability
of fact can be drawn from the combined circumstances
established by the Commonwealth.
In re V.C., 66 A.3d 341, 348–349 (Pa. Super. 2013), appeal denied, 80
A.3d 778 (Pa. 2013) (quoting In re A.V., 48 A.3d 1251, 1252–1253 (Pa.
Super. 2012)).
Viewing the evidence in the light most favorable to the
Commonwealth, the trial court disposed of this challenge as follows:
B.R. was convicted of theft by unlawful taking or
disposition-movable property. Pennsylvania Crimes Code states
that a person is guilty of this offense “if he unlawfully takes, or
exercises unlawful control over, movable property of another
with intent to deprive him thereof,” 18 Pa.C.S. § 3921(a). Even
a cursory review of the trial transcript reveals that there was
ample evidence, including [Appellant’s] own testimony, to
sufficiently support the Court’s adjudication and disposition.
There is no dispute that [Appellant] exercised control over the
movable property, namely the bicycle, belonging to
Mr. Mikesell’s son, and that [Appellant] intended to deprive
Mr. Mikesell’s son of the same.1 Trial Transcr. 15-41 (Sept. 4,
2014).
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1
The only issue of any possible dispute is whether
the act was “unlawful.” [Appellant] and his father
offered testimony to suggest that [Appellant]
thought the bicycle actually belonged to [Appellant]
in the first place and that he was stealing it back.
See Trial Transcr. 27:11-22 (Sept. 4, 2014); see also
Trial Transcr. 36:12-21 (Sept. 4, 2014). However,
whether “stealing back” the bicycle could be of any
legal consequence is irrelevant as the Court did not
find this story to be credible in the least.
The trial Court heard and weighed the testimony of all of
the witnesses at the trial. The trial Court found the testimony of
Mr. Mikesell and Officer Rhymstine to be highly credible.
Conversely, the trial Court found the testimony of [Appellant]
and his father to lack credibility; and the trial Court ruled
accordingly.
The trial Court was free to draw reasonable inferences
from the evidence offered at trial. Though [Appellant] may
disagree with the trial Court’s inferences and findings, those
inferences and findings of fact rest squarely within the trial
Court’s discretion when acting as fact finder.
Trial Court Opinion, 12/2/14, at 6-7.
Upon review, we conclude that the record supports the trial court’s
findings and that its conclusion of law is without error. The Commonwealth
introduced photographic and testimonial evidence—including Appellant’s
admission to the investigating officer—proving beyond a reasonable doubt
that Appellant took the bicycle from the YMCA with the intent to deprive
Mr. Mikesell’s son of it. N.T., 9/4/14, at 17–18. Also, the trial court acted
within its discretion in finding Appellant’s testimony incredible. Contrary to
Appellant’s description of the tires of the bicycle he owned, the front tire of
the Mikesell bicycle was secured by bolts, washers, and pegs, and the rear
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tire was original to the bicycle. Id. at 18. Moreover, Appellant told the
investigating officer that he took the bicycle from the YMCA. At trial,
though, Appellant testified that his younger brother actually took the bike
from the YMCA. Accordingly, we conclude that Appellant’s sufficiency claim
lacks merit.
Lastly, we have independently reviewed the record in order to
determine whether there are any non-frivolous issues present in this case.
Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super. 2014). Having
concluded there are no meritorious issues, we grant Appellant’s counsel
permission to withdraw, and affirm the dispositional order.
Petition of counsel to withdraw is granted. Dispositional order
affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/1/2015
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