J-S25037-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: T.S. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: T.S.
No. 1850 WDA 2014
Appeal from the Dispositional Order July 1, 2014
in the Court of Common Pleas of Allegheny County
Juvenile Division at No.: 11-1252, JID #87248-A Caselog 178274
BEFORE: BENDER, P.J.E., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MAY 06, 2015
Appellant, T.S., a minor, appeals from the juvenile court’s dispositional
order1 following his adjudication of delinquency for committing delivery of a
controlled substance and criminal conspiracy.2 Appellant challenges the
sufficiency and weight of the evidence. We affirm.
The juvenile court aptly summarized factual history of this case as
follows:
. . . [On] January 3, 2014, City of Pittsburgh police officers
Lieutenant Jason Lando, along with Sergeant Tom Huerbin
worked an undercover drug detail. As part of that detail, Lt.
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*
Retired Senior Judge assigned to the Superior Court.
1
The court’s order is dated June 26, 2014, but was entered on the docket on
July 1, 2014. We have amended the caption accordingly.
2
35 P.S. § 780-113(a)(30), and 18 Pa.C.S.A. § 903(a)(1), respectively.
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Lando began communicating with an unknown male via text
messaging and arranged a drug buy at approximately noon that
same day. As a result of this communication, Lt. Lando, and
Sgt. Huerbin operating as close cover, along with a surveillance
team proceeded to Capri Pizza, located at the corner of Penn
Avenue and North Highland in the East Liberty section of the City
of Pittsburgh. Once at the restaurant Lt. Lando was to purchase
a bundle, or ten (10) stamp bags of heroin, for eighty (80)
dollars. While acting undercover, Lt. Lando and Sgt. Huerbin
positioned themselves inside Capri Pizza. Lt. Lando sat at a
table near the front of the restaurant near the front glass
window and Sgt. Huerbin was positioned a few tables behind Lt.
Lando. As 12:45 p.m., Lt. Lando received a telephone call from
the same unknown male, stating that he was parking the car and
would be there soon. Lt. Lando gave the unknown male details
of his physical description and where he was seated inside the
restaurant. Approximately two (2) minutes later, Lt. Lando
observed two (2) black males, one later identified as James
Kendrick and the second, minor [Appellant3], approach the pizza
shop together and then engage in a conversation. Lt. Lando
next testified that [Appellant], who was wearing a red hooded
sweatshirt with white lettering on the front that read “Fame U”,
entered Capri Pizza after Kendrick motioned for him to do so.
[Appellant] then walked directly to the area where Lt. Lando was
seated, looked him up and down, made eye contact and then
exited the restaurant to meet up with Kendrick, who had
remained outside. Lt. Lando then followed [Appellant] outside.
The trio stood together in front of the restaurant, and at that
time [Appellant] said to Kendrick, “he is cool man.” Upon
hearing this, Lt. Lando told Kendrick that he wanted to conduct
the drug transaction in the bathroom inside Capri Pizza. The trio
then proceeded to the back of the restaurant, where the
bathroom is located. Lt. Lando and Kendrick entered the
bathroom, where Kendrick handed him a bundle of heroin and
received eighty (80) dollars from Lt. Lando in return.
[Appellant], who was observed by Sgt. Huerbin, stood at
the pizza counter during the drug transaction and ordered some
food while keeping an eye on the bathroom door. After
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3
Appellant was fourteen-years-old at the time of the incident. (See
Appellant’s Brief, at 9).
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delivering the heroin, Kendrick walked out of the bathroom and
exited Capri Pizza. Lt. Lando went back to his table and left
shortly thereafter. Sgt. Huerbin remained inside until
[Appellant] left the restaurant and then followed [him] for a
short while outside. Officer Gary Spory, who was part of the
surveillance team, was positioned outside to photograph any
portions of the drug transaction and photographed [Appellant] as
he was walking on North Highland after he left Capri Pizza.
(Trial Court Opinion, 12/08/14, at 2-4 (footnotes omitted)).
The juvenile court held an adjudicatory hearing on June 5, 2014, and
adjudicated Appellant delinquent based on its determination that he
committed the above-mentioned offenses. On July 1, 2014, the court
entered its dispositional order committing Appellant to The Summit
Academy. On July 3, 2014, Appellant filed post-dispositional motions, see
Pa.R.J.C.P. 620, which the court denied by order entered August 6, 2014.
Appellant filed a timely notice of appeal.
On September 2, 2014, the court entered an order directing Appellant
to file a Rule 1925(b) statement within seven days, advising: “[a]ny issue
not properly included in the Statement timely filed and served shall be
deemed waived.” (Concise Statement Order, 9/02/14, at 1); see Pa.R.A.P.
1925(b). On September 10, 2014, the court issued an order superseding its
previous Rule 1925(b) order, directing Appellant to file a concise statement
within twenty-one days of the original order.4 The court again advised: “Any
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4
Twenty-one days from the original order was September 23, 2014.
(Footnote Continued Next Page)
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issue not properly included in the Statement timely filed and served shall be
deemed waived.” (Concise Statement Order, 9/10/14, at 1). Appellant filed
a Rule 1925(b) statement on October 1, 2014, eight days past the deadline
set by the court, but within twenty-one days of entry of the September 10,
2014 order on the docket. The court filed an opinion on December 8, 2014,
in which it addressed the issues raised in Appellant’s Rule 1925(b)
statement. See Pa.R.A.P. 1925(a).
Appellant raises two issues for our review:
1. Whether the trial court erred in holding that the evidence
presented at trial was sufficient to support the delinquency
adjudications for delivery of a controlled substance, 35
Pa.C.S.[]§ 780-113(a)(1)[sic], and criminal conspiracy 18
Pa.C.S.A.[]§ 903?
2. Whether the trial court erred in holding that the delinquency
adjudications for delivery of a controlled substance, 35 Pa.C.S.
§[]780-113(a)(1) [sic] and criminal conspiracy under 18 Pa.C.S.
§[]903(a)(1) were not against the weight of the evidence?
(Appellant’s Brief, at 6).
Before we may address Appellant’s issues, we must determine if he
properly preserved them, as required by Rule 1925(b).
The Rule provides, in relevant part:
(b) Direction to file statement of errors complained of on
appeal; instructions to the appellant and the trial court.—
If the judge entering the order giving rise to the notice of appeal
_______________________
(Footnote Continued)
Although the order directed that the statement be filed within twenty-
one days of “this order,” it further noted that “[t]he effective date of this
order is Sept. 2, 2014.” (Concise Statement Order, 9/10/14, at 1).
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(“judge”) desires clarification of the errors complained of on
appeal, the judge may enter an order directing the appellant to
file of record in the trial court and serve on the judge a concise
statement of the errors complained of on appeal (“Statement”).
* * *
(2) Time for filing and service.—The judge shall allow the
appellant at least 21 days from the date of the order’s entry on
the docket for the filing and service of the Statement. Upon
application of the appellant and for good cause shown, the judge
may enlarge the time period initially specified or permit an
amended or supplemental Statement to be filed. . . . In
extraordinary circumstances, the judge may allow for the filing
of a Statement or amended or supplemental Statement nunc pro
tunc.
(3) Contents of order.—The judge’s order directing the
filing and service of a Statement shall specify:
(i) the number of days after the date of entry of the
judge’s order within which the appellant must file
and serve the Statement;
(ii) that the Statement shall be filed of record;
(iii) that the Statement shall be served on the judge
pursuant to paragraph (b)(1);
(iv) that any issue not properly included in the
Statement timely filed and served pursuant to
subdivision (b) shall be deemed waived.
(4) Requirements; waiver.
* * *
(vii) Issues not included in the Statement and/or not
raised in accordance with the provisions of this
paragraph (b)(4) are waived.
Pa.R.A.P. 1925(b)(2), (3), (4)(vii).
An en banc panel of this Court has held:
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Our Supreme Court intended the holding in
[Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)] to operate
as a bright-line rule, such that “failure to comply with the
minimal requirements of Pa.R.A.P. 1925(b) will result in
automatic waiver of the issues raised.” Commonwealth v.
Schofield, . . . 888 A.2d 771, 774 ([Pa.] 2005). . . ; see also
[Commonwealth v.] Castillo, 888 A.2d [775, 780 (Pa. 2005)].
Given the automatic nature of this type of waiver, we are
required to address the issue once it comes to our attention.
Indeed, our Supreme Court does not countenance anything less
than stringent application of waiver pursuant to Rule 1925(b):
“[A] bright-line rule eliminates the potential for inconsistent
results that existed prior to Lord, when . . . appellate courts had
discretion to address or to waive issues raised in non-compliant
Pa.R.A.P. 1925(b) statements.” Id. Succinctly put, it is no
longer within this Court’s discretion to ignore the internal
deficiencies of Rule 1925(b) statements.
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d
222, 224 (Pa. Super. 2014) (en banc) (some citations, quotation marks and
emphasis omitted).
Here, the record reflects that, on September 2, 2014, the juvenile
court issued an order directing Appellant to file a concise statement within
only seven days, in violation of Rule 1925(b)(2). (See Concise Statement
Order, 9/02/14, at 1); see also Pa.R.A.P. 1925(b)(2) (requiring trial courts
to allow a minimum of twenty-one days for filing). The court then corrected
this error by issuing a superseding order on September 10, 2014 in technical
compliance with Rule 1925(b), requiring Appellant to file a concise statement
within twenty-one days of its original order. (See Order, 9/10/14, at 1).
The order provided: “Any issue not properly included in the Statement timely
filed and served shall be deemed waived.” (Id.) Appellant filed a Rule
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1925(b) statement on October 1, 2014, eight days after the deadline set by
the court.
Based on the foregoing, we conclude that Appellant failed to comply
with the requirements of Rule 1925(b). Therefore, he has waived his issues
on appeal. See Pa.R.A.P. 1925(b)(3)(iv), (4)(vii); see also Greater Erie
Indus. Dev. Corp., supra at 224.
Moreover,5 even if Appellant’s issues on appeal were not waived, they
would not merit relief. “Our standard of review of dispositional orders in
juvenile proceedings is well settled: . . . We will not disturb a disposition
absent a manifest abuse of discretion.” In re R.D., 44 A.3d 657, 664 (Pa.
Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012) (citation omitted).
As noted above, Appellant first challenges the sufficiency of the
evidence supporting his adjudication of delinquency for delivery of a
controlled substance and criminal conspiracy. (See Appellant’s Brief, at 14).
He argues “there was absolutely no evidence whatsoever that [he] actually
possessed heroin, let alone delivered heroin to Lt. Lando[,]” and that he was
merely present at the pizza shop where he went to buy his lunch. (Id.; see
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5
We recognize that this Court generally does not address the issues an
appellant raises on appeal where he or she files an untimely Rule 1925(b)
statement. See Greater Erie Indus. Dev. Corp., supra at 227. However,
given the unique circumstances of this case, where the court issued two Rule
1925(b) orders, the first of which failed to comply with Rule 1925(b)(2), and
Appellant filed his concise statement within twenty-one days of entry of the
second order on the docket, we will address Appellant’s issues in the interest
of judicial economy. See Pa.R.A.P. 105.
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id. at 16). He also argues that there “is insufficient evidence to establish
any agreement between Kendrick and himself.” (Id. at 17). This issue
would not merit relief.
A challenge to the sufficiency of the evidence is a question of law
subject to plenary review. We must determine whether the
evidence admitted at trial and all reasonable inferences drawn
therefrom, when viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to support all
elements of the offenses. A reviewing court may not weigh the
evidence or substitute its judgment for that of the trial court.
Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal
denied, —A.3d— (Pa. 2015) (citation and quotation marks omitted).
The Controlled Substance, Drug, Device and Cosmetic Act prohibits
“the . . . delivery . . . [of] a controlled substance by a person not registered
under this act[.] . . . ” 35 P.S. § 780-113(a)(30).
In the instant case, the court found that Appellant was liable as an
accomplice to the delivery of heroin to Lt. Lando. (See Trial Ct. Op. at 7).
“It is well-established . . . that a defendant, who was not a principal actor in
committing the crime, may nevertheless be liable for the crime if he was an
accomplice of a principal actor.” Commonwealth v. Murphy, 844 A.2d
1228, 1234 (Pa. 2004) (citations omitted). “A person is an accomplice of
another person in the commission of an offense if . . . with the intent of
promoting or facilitating the commission of the offense, he . . . aids or
agrees or attempts to aid such other person in planning or committing it[.] .
. .” 18 Pa.C.S.A. § 306(c)(1)(ii). “[A] defendant cannot be an accomplice
simply based on evidence that he knew about the crime or was present at
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the crime scene.” Murphy, supra at 1234 (citation omitted). “There must
be some additional evidence that the defendant intended to aid in the
commission of the underlying crime, and then did or attempted to do so.”
Id. (citation omitted).
Section 903 of the Crimes Code sets forth the crime of criminal
conspiracy, in pertinent part, as follows:
(a) Definition of conspiracy.—A person is guilty of conspiracy
with another person or persons to commit a crime if with the
intent of promoting or facilitating its commission he:
(1) agrees with such other person or persons that they or one or
more of them will engage in conduct which constitutes such
crime or an attempt or solicitation to commit such crime[.]
18 Pa.C.S.A. § 903(a)(1).
“To sustain a conviction for criminal conspiracy, the Commonwealth
must establish the defendant: 1) entered into an agreement to commit or
aid in an unlawful act with another person or persons; 2) with a shared
criminal intent; and 3) an overt act was done in furtherance of the
conspiracy.” Commonwealth v. Feliciano, 67 A.3d 19, 25-26 (Pa. Super.
2013) (en banc), appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted).
“The conduct of the parties and the circumstances surrounding such conduct
may create a web of evidence linking the accused to the alleged conspiracy
beyond a reasonable doubt.” Id. at 26 (citation omitted).
Here, the juvenile court explained why Appellant’s sufficiency of the
evidence claim lacks merit:
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The Commonwealth conceded that [Appellant] did not
possess or physically deliver the heroin to Lt. Lando himself.
However, the evidence clearly established that [Appellant] acted
as an accomplice to the crime, and was not merely present at
the crime scene. As Lt. Lando testified, within minutes after
receiving a call from the unknown male confirming the drug deal,
[Appellant] arrived with Kendrick. [(See N.T. Hearing, 6/05/14,
at 13-14)]. The subsequent actions by [Appellant] of entering
the restaurant and “looking over”, essentially screening Lt.
Lando, demonstrated his intent to aid in the delivery. ([See id.
at 15-18)]. Shortly thereafter, [Appellant] vouched that Lt.
Lando was not a police officer by indicating to Kendrick “he is
cool, man” giving the green light for the drug transaction to take
place. [(Id. at 17; see id. at 18)]. [Appellant] was present
when Lt. Lando and Kendrick discussed where the drug deal
would take place and followed then inside the restaurant,
providing surveillance over the bathroom to ensure that the
delivery would be effectuated without interference. ([See id. at
17-19, 35)]. As the linchpin that connected Lt. Lando to the
principle actor, [Appellant] was an accomplice under the law and
thus delinquent of the crime of delivery of a controlled
substance.
* * *
. . . [With respect to criminal conspiracy,] [t]he circumstantial
evidence in this case, viewed in the light most favorable to the
Commonwealth, demonstrated not only that [Appellant]
intended for the drugs to be sold, but also made an agreement
with Kendrick that [Appellant] would assume an active role in
the delivery. As stated above, [Appellant] and Kendrick arrived
together outside Capri Pizza and engaged in a brief conversation.
[(See id. at 14-15)]. Immediately thereafter, Lt. Lando
observed Kendrick nod at [Appellant] to enter the restaurant.
([See id. at 15)]. Later, Lt. Lando stood outside with both
actors and discussed were the drug deal was to take place.
([See id. at 17)]. [Appellant] then followed them inside and
stationed himself outside the bathroom while the delivery
occurred. ([See id. at 18-19)]. [Appellant] sanctioned the
commission of the crime when he committed the overt act of
assuring Kendrick that Lt. Lando was not a police officer, by
stating “he is cool, man”. [(Id. at 17)]. As such, the [c]ourt
found sufficient evidence to support the existence of a criminal
conspiracy between [Appellant] and Kendrick. . . .
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(Trial Ct. Op., at 7-9) (emphases omitted).
After review of the record, viewing the evidence in the light most
favorable to the Commonwealth, (see Colon, supra at 1041), we conclude
that it fully supports the court’s determination that the evidence was
sufficient to sustain Appellant’s adjudication. Accordingly, Appellant’s first
issue would not merit relief.
In his second issue, Appellant challenges the weight of the evidence to
support his adjudication.6 Specifically, Appellant asserts that the court gave
undue consideration to Lt. Lando’s testimony, which was not credible, was
self-serving, and inconsistent with police reports. (See Appellant’s Brief, at
18-22). He maintains that the court dismissed inconsistencies in the
testimony where Lt. Lando testified that Appellant entered the restaurant by
himself at the direction of Kendrick, while Sgt. Huerbin testified that the two
men entered together. (See id. at 20). This issue would not merit relief.
The law pertaining to weight of the evidence claims is well-
settled. The weight of the evidence is a matter exclusively for
the finder of fact, who is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses. A
new trial is not warranted because of a mere conflict in the
testimony and must have a stronger foundation than a
reassessment of the credibility of witnesses. Rather, the role of
the trial judge is to determine that notwithstanding all the facts,
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6
Appellant preserved this claim by including it in his post-dispositional
motion. (See Post-Dispositional Motion, 7/03/14, at unnumbered page 2);
see also Pa.R.J.C.P. 620; In re J.B., supra at 99.
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certain facts are so clearly of greater weight that to ignore them
or to give them equal with all the facts is to deny justice.
On appeal, our purview is extremely limited and is
confined to whether the trial court abused its discretion in
finding that the jury verdict did not shock its conscience. Thus,
appellate review of a weight claim consists of a review of the
trial court’s exercise of discretion, not a review of the underlying
question of whether the verdict is against the weight of the
evidence. An appellate court may not reverse a verdict unless it
is so contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. Gonzalez, 2015 WL 252446, at *7-8 (Pa. Super. Jan.
21, 2015) (citations and quotation marks omitted).
Here, after review of the record, and mindful of our “extremely
limited” purview, we cannot conclude that the court’s ruling on Appellant’s
weight of the evidence claim constituted abuse of discretion. Id. at *8. The
court, as finder of fact, while passing upon the credibility of witnesses’
testimony and the weight of the evidence produced, was free to believe all,
part, or none of the evidence, and to resolve any inconsistencies in the
testimony. See id. at *7-8. Therefore, Appellant’s weight claim would not
merit relief. Accordingly, we affirm the dispositional order entered by the
juvenile court.
Dispositional order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2015
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