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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: Z.M., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: Z.M.
No. 1645 EDA 2015
Appeal from the Dispositional Order March 23, 2015
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0003138-2014
BEFORE: BENDER, P.J.E., STABILE, J. AND MUSMANNO. J.
MEMORANDUM BY BENDER, P.J.E.: FILED MAY 06, 2016
Z.M. appeals from the dispositional order entered following the
adjudication of his delinquency on March 23, 2015, for acts constituting
aggravated assault, simple assault, and conspiracy.1 We affirm.
The Commonwealth adduced the following evidence:
At the [hearing] on March 23, 2015, Jose Luciano testified that
on October 9, 2014, he went to the Septa [elevated train]
station and there were children jumping the admissions gate and
getting onto the crowded Septa train. The police were chasing
them but did not intercept them. He noted that he boarded the
train with his friend and, when the train stopped at the Church
Street station, his friend was pushed off the Septa train and
punched. He testified that he got off the train to help his friend
when he came face to face with [Appellant], Z.M. Mr. Luciano
then identified [Appellant] at the bar of the court. Mr. Luciano
indicated that he pushed [Appellant] and [Appellant] then
pushed him back and started punching him. The witness
attempted to defend himself when a group of other individuals
started hitting and punching [and] backing him into a corner on
the Church Street station platform. Mr. Luciano explained that
[he] put his arms up to protect his face but the group still
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1
Respectively, see 18 Pa.C.S. §§ 2702(a), 2701(a), and 903(c).
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continued to hit him in the face and arms more than ten (10)
times. Mr. Luciano also identified the Co-Defendant at the bar of
the court as being involved in the incident. The witness
indicated that the incident lasted approximately ten (10) minutes
when a Septa employee intervened to stop the flight. Mr.
Luciano suffered a broken arm and a black eye. He underwent
surgery at St. Christopher’s Hospital[,] and the fracture was
secured with surgical plates and screws. Mr. Luciano testified
that he missed approximately one month of school due to his
injuries and he took pain medicine for longer than that. He still
has scars on the underside of his left arm. Mr. Luciano explained
that he had seen [Appellant] and Co-Defendant in the hallways
of Frankford High School, where they were all students.
[Appellant] was identified in a photo array.
Next, counsel stipulated to the authenticity of a cell phone video
obtained by School Police Officer Linda Sands. The video
depicted part of the incident. The video was marked as C-1.
The second witness was Detective Jason Connor, Septa Transit
Police Officer, Badge #16. Detective Connor investigated the
October 9, 2014[] incident that occurred on the Church Street
[elevated train] platform[,] which led him to interview
[Appellant], Z.M. Counsel stipulated that the interview took
place on November 20, 2014. Detective Connor identified
[Appellant], Z.M., at the bar of the court by name and clothing.
Detective Connor said he spoke to the complainant on the day of
the incident and he indicated that he attended Frankford High
School. Detective Connor then spoke to the School Police
Officer, [Officer] Sands, who informed him that witnesses
implicated [Appellant], Z.M., in the assault. Detective Connor
then spoke with [Appellant’s] mother and requested her to bring
her son to Septa Police Headquarters at 1234 Market Street,
Philadelphia, PA for a formal interview. [Appellant] agreed and,
prior to questioning, he was mirandized. He was interviewed in
the presence of his mother. During the interview, [Appellant]
acknowledged involvement in [the] October 9, 2014 incident.
He also admitted that he “punched” the complainant and then
other individuals jumped in to “help him[.”] He also saw other
individuals “punching” the complainant. [Appellant’s] statement
was entered into evidence as C-2[,] and the Commonwealth
rested.
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Following Detective Connor’s testimony, counsel stipulated that
Barbara Martin would testify that [Appellant], Z.M., has the
reputation and character in the community as being a peaceful
and law-abiding person.
Juvenile Court Opinion, 07/07/2015, at 3-5 (citations to notes of testimony
omitted). To these facts, we note further that Mr. Luciano testified expressly
that Appellant and his associates first attacked his friend, and thereafter
attacked him when he tried to intervene. See Notes of Testimony (N.T.),
03/23/2015, at 10.
Following a hearing in March 2015, the juvenile court adjudicated
Appellant delinquent and placed him on probation. Appellant timely
appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The
juvenile court issued a responsive opinion.
Appellant raises the following issue:
Was not the evidence insufficient to sustain [dispositions of
delinquency] against [A]ppellant for aggravated assault and
conspiracy, where the evidence did not establish that [A]ppellant
caused or attempted to cause serious bodily injury to the
complainant, and did not prove that there was any criminal
agreement between [Appellant] and another assailant?
Appellant’s Brief at 3.
Appellant contends that there was no evidence that he was individually
responsible for Mr. Luciano’s serious injuries. See Appellant’s Brief at 10.
Thus, according to Appellant, his liability for aggravated assault may only be
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sustained if there is sufficient evidence of his participation in a conspiracy. 2
Id. Appellant submits that the evidence of a conspiracy is merely
speculative, in particular suggesting that the incident was spontaneous and
without a common plan or understanding. See Appellant’s Brief at 13-16
(citing in support Commonwealth v. Kennedy, 453 A.2d 927, 930 (Pa.
1982); Commonwealth v. Wilson, 296 A.2d 719, 721-22 (Pa. 1972)).
Thus, Appellant concludes, the evidence of conspiracy was insufficient to
support his adjudication. See Appellant’s Brief at 17.
In a juvenile proceeding, the hearing judge sits as the finder of
fact. The weight to be assigned the testimony of the witnesses
is within the exclusive province of the fact finder. In reviewing
the sufficiency of the evidence, we must determine whether the
evidence, and all reasonable inferences deducible therefrom,
viewed in the light most favorable to the Commonwealth as
verdict winner, are sufficient to establish all of the elements of
the offenses beyond a reasonable doubt. The Commonwealth
may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial
evidence.
In re L.A., 853 A.2d 388, 391 (Pa. Super. 2004) (internal citations
omitted). Moreover, the fact finder “is free to believe all, part, or none of
the evidence.” Commonwealth v. Newton, 994 A.2d 1127, 1132 (Pa.
Super. 2010).
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2
Appellant concedes he is liable for simple assault. See Appellant’s Brief at
17 n.2. Moreover, though Appellant does not expressly concede that Mr.
Luciano suffered serious bodily injury, such as would result from an
aggravated assault, we infer this from his argument.
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A juvenile may be adjudicated delinquent for conspiracy if the
Commonwealth proves the following:
1) [T]he [juvenile] entered into an agreement with another to
commit or aid in the commission of a crime; 2) he shared the
criminal intent with that other person; and 3) an overt act was
committed in furtherance of the conspiracy. This overt act need
not be committed by the [juvenile]; it need only be committed
by a co-conspirator.
The essence of a criminal conspiracy is a common
understanding, no matter how it came into being, that a
particular criminal objective be accomplished. Therefore, [an
adjudication of delinquency] for conspiracy requires proof of the
existence of a shared criminal intent.
In re V.C., 66 A.3d 341, 349 (Pa. Super. 2013), appeal denied, 80 A.3d 778
(Pa. 2013) (internal punctuation modified; citations omitted); see also 18
Pa.C.S. § 903(a).
In the context of an assault, it is well settled that “[p]ersons do not
commit the offense of conspiracy when they join into an affray
spontaneously, rather than pursuant a common plan, agreement, or
understanding.” Kennedy, 453 A.2d at 930 (citing Wilson, 296 A.2d at
721-22). However,
[a]n explicit or formal agreement to commit crimes can seldom,
if ever, be proved and it need not be, for proof of a criminal
partnership is almost invariably extracted from the
circumstances that attend its activities. Thus, a conspiracy may
be inferred where it is demonstrated that the relation, conduct,
or circumstances of the parties, and the overt acts of the co-
conspirators sufficiently prove the formation of a criminal
confederation. The conduct of the parties and the circumstances
surrounding their conduct may create a web of evidence linking
the accused to the alleged conspiracy beyond a reasonable
doubt. Even if the conspirator did not act as a principal in
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committing the underlying crime, he is still criminally liable for
the actions of his co-conspirators in furtherance of the
conspiracy.
In re V.C., 66 A.3d at 349; see also Kennedy, 453 A.2d at 930.
In Kennedy, a physical altercation ensued following an intense
argument between the defendant, his friend, and defendant’s landlord.
Kennedy, 453 A.2d at 928. The defendant and his friend “viciously beat”
the landlord, who eventually died of his wounds. Id. The defendant was
convicted of conspiracy (among other crimes), but our Supreme Court
arrested the judgment of sentence with respect to conspiracy. The Court
acknowledged that the Commonwealth’s evidence established that a brawl
occurred and that the defendant and his friend were participants. Id. at
930. However, the Court concluded that their “mere association” and
“simultaneous participation in the assault” was insufficient to establish an
agreement or common design. Id.; see also Wilson, 296 A.2d at 721-22
(concluding that there was insufficient evidence of conspiracy where the
defendant spontaneously fought with the victim and where the defendant’s
friends thereafter joined the fight without encouragement or invitation).
In our view, Kennedy and Wilson are inapposite, and thus,
Appellant’s argument is unpersuasive. Mindful of our standard of review,
see In re L.A., 853 A.2d at 391, the evidence established that Appellant
and his confederates jumped the turnstiles and boarded the train,
successfully escaping from police pursuit. At a subsequent station, members
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of the group pushed Mr. Luciano’s friend off the train and assaulted him.
When Mr. Luciano intervened on his friend’s behalf, members of the group,
including Appellant, assaulted him. This group assault caused Mr. Luciano to
suffer serious bodily injury. Based upon these overt acts, the evidence
suggests more than a mere association between Appellant and his
confederates - more than the simultaneous participation of multiple
assailants in an assault. To the contrary, the evidence suggests that
Appellant and his confederates acted with common, criminal purpose.
Accordingly, the juvenile court properly inferred that Appellant
conspired to commit the crime of aggravated assault. See In re V.C., 66
A.3d at 349. We affirm the dispositional order.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/6/2016
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