In Re: C.W., Juvenile Appeal of: C.W., Juveni

J-A01018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

C.W., JUVENILE

Appellant No. 3470 EDA 2014

Appeal from the Dispositional Order November 5, 2014
In the Court of Common Pleas of Lehigh County
Juvenile Division at No(s): CP-39-JV-0000302-2014
SID NO. 41678445

BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.: FILED JUNE 27, 2016

C.W., a minor,1 appeals from the dispositional order entered November

5, 2014, by the Lehigh County Court of Common Pleas, Juvenile Division.

The juvenile court adjudicated C.W. delinquent on charges of harassment

and ethnic intimidation,2 and entered a dispositional order placing C.W. on

official probation. On appeal, C.W. argues the juvenile court erred in finding

that he knowingly, intelligently, and voluntarily waived his Miranda3 rights,

____________________________________________

*
Former Justice specially assigned to the Superior Court.
1
C.W.’s date of birth is August 22, 1999.
2
18 Pa.C.S. §§ 2709(a)(1) and 2710, respectively.
3
Miranda v. Arizona, 384 U.S. 436 (1966).
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and there was insufficient evidence to support his adjudications for

harassment and ethnic intimidation. For the reasons that follow, we affirm.

The trial court set forth the facts as follows:

On April 24, 2014, at approximately 1 p.m., N.G., a 12 th
grader at William Allen High School, located in Allentown, Lehigh
County, Pennsylvania, was seated at a lunchroom table in the
12th grade cafeteria during a Study Hall. N.G. was seated with
two friends, G.S. and G.Z. By way of background, N.G. and G.Z.
are Caucasian and G.S. is Hispanic. The three boys were playing
a card game. A short time later, [C.W.] and his two friends, F.R.
and J.W., entered the room and started to congregate near
where N.G. and his friends were sitting. The entire interaction
was captured on video, which the Court was able to review at
the time of the Adjudicatory Hearing.

The video begins with F.R. operating the camera and J.W.
describing the video as “Smack Cam Part 3.” F.R. trains the
camera on an Allen High School security guard, but then focuses
the camera on N.G. and his table. Thereafter, F.R. directs J.W.
to “mop his shit” and J.W. smacks N.G. on the back of the head,
causing N.G. to turn around and look in the direction from where
the smack came. At the time of the Hearing, N.G. testified that
he did not feel pain and that he wanted to avoid a confrontation.
Therefore, N.G. turned back around and continued to try to
concentrate on the cards he was shuffling.

After smacking N.G., F.R. turned the camera on himself
and declared that they “mopped that shit.” J.W. is next seen in
the corner of the cafeteria and F.R. handed the video camera to
[C.W.] to continue to film the exchange between J.W., F.R. and
N.G.

F.R. again approaches N.G. from behind and began to run
his fingers through N.G.’s hair and to speak with N.G. N.G.
recalled that F.R. stated that N.G.’s hair was pretty smooth and
that he could be F.R.’s daughter. [C.W.] is clearly heard
laughing in the background of the video as he films F.R. fondling
N.G.’s hair. F.R. and J.W. then asked G.Z. to use his cellular
telephone to call F.R.’s mother. G.Z. says no, stating that there
was not a lot of battery power left on the telephone. J.W. then
told him that he is making up excuses and that there is power on

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the telephone. While filming the exchange, [C.W.] continues to
giggle, and then to moan/sigh. [C.W.] uses the zoom function
on the camera to zoom in and out on N.G. and G.Z.

[C.W.] then sits down at the table with N.G., G.Z., and
G.S., handing the video camera back to F.R. to continue to film
the exchange. F.R. films G.Z., calling him a “pink ass nigger.”

On April 25, 2014, Detective Bill Williams of the Allentown
Police Department went to William Allen High School to
investigate what had transpired at the school the day before. A
video had been posted to F.R.’s Facebook page and
administration officials had viewed the video and summoned the
police. Detective Williams viewed the video and through
investigation, was able to determine the identity of the juveniles
seen on the video.

When he arrived at school on April 25, 2014, [C.W.] was
summoned to the Principal’s Office at the high school. There, he
was told that he would not be permitted to leave the office for
any purpose until he gave a written account of the incident of
the previous day. In the office were the Assistant Principal, a
school security office and a uniformed member of the Allentown
Police Department. Ultimately, [C.W.] wrote a statement,
implicating himself in the incident involving N.G., G.Z. and G.S.

[C.W.]’s mother eventually arrived at school. She and
[C.W.] were told that they needed to go to the Allentown Police
Department to talk about the incident in the cafeteria. They
were transported by a uniformed officer to the police
department. After issuing Miranda warnings to [C.W.], in the
presence of his mother, [C.W.] gave a statement where he
admitted to knowing that F.R. and J.W. had approached N.G.,
G.Z. and G.S. because of their race, recording the Smack Cam
incident, and provoking the situation.

Trial Court Opinion, 6/5/2015, at 3-5.

On June 10, 2014, a petition alleging delinquency was filed, charging

C.W. with ethnic intimidation and harassment. On August 14, 2014, C.W.’s

counsel made an oral motion to suppress and a suppression hearing was

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held before a juvenile master. On September 8, 2014, the juvenile master

submitted her recommendation that the motion to suppress be denied. On

September 9, 2014, the juvenile court adopted the recommendation as an

order of the court. No challenge to the master’s recommendation was filed

pursuant to Pa.R.J.C.P. 192.4

The matter proceeded to an adjudication hearing on October 15,

2014.5 At the conclusion of the hearing, both charges were sustained. On

November 5, 2014, C.W. was placed on official probation.6 This appeal

follows.

In C.W.’s first argument, he claims the juvenile court erred by failing

to suppress his custodial statements7 because it was his mother who waived

his Miranda rights, and not C.W. Specifically, he states, “There is not a

____________________________________________

4
Rule 192 provides, in pertinent part: “Time limitation. A party may
challenge the master’s recommendation by filing a motion with the clerk of
courts within three days of receipt of the recommendation. The motion shall
request a rehearing by the judge and aver reasons for the challenge.”
Pa.R.J.C.P. 192(a).
5
All three juveniles were tried together.
6
C.W. was permitted to remain at home under the care and responsibility
of his mother.
7
The juvenile court noted that at the conclusion of the suppression hearing,
“counsel for [C.W.] and the Commonwealth agreed to the admissibility of
[C.W.’s] statement made at the school. Therefore, the writings later
submitted to [the master] for her consideration of the [m]otion only
addressed the oral and written statements made at police headquarters.”
Juvenile Court Opinion, 6/5/2015, at 6.

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single, reported Pennsylvania case that addresses the precise question of

whether or not a parent has the authority to waive a juvenile’s constitutional

right to be free from self-incrimination in the context of custodial

interrogation.” C.W.’s Brief at 9. Relying on the Juvenile Act, 42 Pa.C.S. §

6301 et seq., C.W. asserts the Pennsylvania Legislature did not intend to

allow parental waivers generally. Id. Moreover, he argues,

[E]very single case – federal or state – that has examined a
juvenile Miranda waiver has used a test that examines the
juvenile’s competency. See Com. v. Harvey, 571 Pa. 533, 547
(2002) (When looking at the confession of a juvenile, the court
must consider the juvenile’s age, experience and sophistication
and whether an interested adult was present.). If a parent could
waive the juvenile’s Miranda rights, this test would either be
unnecessary or would be supplemented by a similar evaluation
of the “interested adult.”

Id. at 11. C.W. contends the Commonwealth did not present any evidence

as to his competency. Id.

With respect to this issue, we are guided by the following principles:

Our standard of review in considering an order denying a
suppression motion is as follows:

An appellate court may consider only the Commonwealth’s
evidence and so much of the evidence for the defense as
remains uncontradicted when read in the context of the
record as a whole. Where the record supports the factual
findings of the suppression court, the appellate court is
bound by those facts and may reverse only if the legal
conclusions drawn therefrom are in error. It is also well
settled that the appellate court is not bound by the
suppression court’s conclusions of law. However,
[w]hether a confession is constitutionally admissible is a
question of law and subject to plenary review.

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Thus, this Court does not, nor is it required to, defer to the
suppression court’s legal conclusions that a confession or
Miranda waiver was knowing or voluntary. Instead, we
examine the record to determine if it supports the
suppression court’s findings of fact and if those facts
support the conclusion that, as a matter of law, [the
juvenile] knowingly and intelligently waived his Miranda
rights.

[Commonwealth v. Knox, 50 A.3d 749, 756-757 (Pa. Super.
2012)] (citations and quotations omitted).

With regard to a juvenile waiving his Miranda rights, we
preliminarily note:

Regardless of whether a waiver of Miranda is voluntary,
the Commonwealth must prove by a preponderance of the
evidence that the waiver is also knowing and intelligent.

Miranda holds that “[t]he [juvenile] may waive
effectuation” of the rights conveyed in the warnings
“provided the waiver is made voluntarily, knowingly and
intelligently.” The inquiry has two distinct dimensions.
First, the relinquishment of the right must have been
voluntary in the sense that it was the product of a free and
deliberate choice rather than intimidation, coercion or
deception. Second, the waiver must have been made with
a full awareness both of the nature of the right being
abandoned and the consequences of the decision to
abandon it. Only if the “totality of the circumstances
surrounding the interrogation” reveals both an uncoerced
choice and the requisite level of comprehension may a
court properly conclude that Miranda rights have been
waived.

A determination of whether a juvenile knowingly waived
his Miranda rights and made a voluntary confession is to
be based on a consideration of the totality of the
circumstances, including a consideration of the juvenile’s
age, experience, comprehension, and the presence or
absence of an interested adult. In examining the totality
of circumstances, we also consider: (1) the duration and
means of an interrogation; (2) the defendant’s physical
and psychological state; (3) the conditions attendant to

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the detention; (4) the attitude of the interrogator; and (5)
“any and all other factors that could drain a person’s ability
to withstand suggestion and coercion.”

…

Knox, 50 A.3d at 756-757 (quotations and citations omitted)
(italics in original).

In re V.C., 66 A.3d 341, 350-351 (Pa. Super. 2013).

Additionally, with respect waiver, we note:

The basic precepts regarding what constitutes a sufficient waiver
of Miranda rights have been defined through a line of cases
beginning with Commonwealth v. Bussey, 486 Pa. 221, 404
A.2d 1309, 1314 (Pa. 1979) (plurality opinion). In that plurality
opinion, our Supreme Court rejected the more lenient Federal
constitutional rule that a defendant can implicitly waive his
Miranda rights, instead holding that “an explicit waiver is a
mandatory requirement.” Id. at 1314 (emphasis added); See
also North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755,
60 L. Ed. 2d 286 (1979) (holding that under Federal
constitutional law, an implicit waiver of Miranda rights could be
found where an accused expresses an understanding of his
rights and gives a statement without expressly waiving the
same). Our Supreme Court elaborated that an “explicit waiver”
meant “an outward manifestation of a waiver such as an oral,
written or physical manifestation.” Id. at 1314 n. 11.

In Commonwealth v. Hughes, 536 Pa. 355, 639 A.2d 763 (Pa.
1994), the Court applied Bussey without acknowledging its
limited precedential value as a plurality decision. There, the
Court found that the defendant had “explicitly waived” his
Miranda rights by “clearly and unequivocally” indicating that he
understood his rights and then responding to the officer’s
questions. Id. at 770. In other words, the defendant’s conduct
“clearly manifested an intent to waive his rights.” Id. Similarly,
in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa.
2003), our Supreme Court held that the defendant’s twice
stating he understood his Miranda rights after they were read to
him, and answering questions immediately thereafter,
sufficiently “manifested the intent to waive his rights.” Id. at
844 n. 13. Finally, in [Commonwealth v. Baez, 21 A.3d 1280

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(Pa. Super. 2011)], this Court relied on all of the above-cited
Supreme Court cases in concluding that the defendant had
sufficiently manifested his intent to waive his Miranda rights
where those rights were read to him, he indicated one time that
he understood them, and then he answered the questions asked
by police. Baez, 21 A.3d at 1286.

Commonwealth v. Cohen, 53 A.3d 882, 886 (Pa. Super. 2012) (footnote

omitted).

Lastly, “the per se requirement of the presence of an interested adult

during a police interview of a juvenile is no longer required. Nevertheless, it

remains one factor in determining the voluntariness of a juvenile’s waiver of

his Miranda rights.” In the Interest of T.B., 11 A.3d 500, 507 (Pa. Super.

2010). Moreover, in Commonwealth v. Starkes, 335 A.2d 698 (Pa.

1975), which both the juvenile master and juvenile court relied on, the

Pennsylvania Supreme Court stated:

Where an informed adult is present the inequality of the position
of the accused and police is to some extent neutralized and due
process satisfied. However, where the adult is ignorant of the
constitutional rights that surround a suspect in a criminal case
and exerts his or her influence upon the minor in reaching the
decision, it is clear that due process is offended. An uninformed
adult present during custodial interrogation presents an even
greater liability. The minor in such a situation is given the
illusion of protection, but is in fact forced to rely upon one who is
incapable of providing the advice and counsel needed in such a
situation.

Unless we require police officers to also advise parents, who are
in the position to counsel minor suspects during custodial
interrogation, we will not only fail to assure the full benefits
sought to be attained by this type of counseling but we will also
increase the likelihood that the suspect will be misinformed as to
his rights.

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Commonwealth v. Starkes, 335 A.2d 698, 703 (Pa. 1975) (footnote

omitted).

Here, in finding C.W. did not invoke his Miranda rights prior to

speaking with the detectives, the juvenile court found the following:

In the case at bar, [C.W.] was fourteen (14) years old at
the time of the interview and was in the 9th grade at William
Allen High School. On April 25, 2014, [C.W.] was summoned to
the principal’s office. At some point in time later, [C.W.]’s
mother, Keyanda Pierce, arrived at the school and was informed
that she and her son had to report to the police station to be
interviewed. [C.W.] was not told that he was free to leave or
that he could refuse to report to the police station. Ms. Pierce
and [C.W.] were escorted to the police station by a uniformed
officer.

Upon arrival at the police station, Ms. Pierce and [C.W.]
were seated in an unlocked interview room, but were not
informed that they could leave either the room or the police
department. At approximately 2:05 p.m., Detective Williams
began his interview with [C.W.]. Ms. Pierce and [C.W.]
consented to having the interview audio recorded.

The detectives explained to [C.W.] that he wished to get
some background information and explained the criminal nature
of the investigation. Thereafter, Detective Williams read [C.W.],
the presence of his mother, his Miranda rights. Detective
Williams asked [C.W.] if he understood his rights and [C.W.]
confirmed that he did. Detective Williams turned off the audio
recording and allowed Ms. Pierce and [C.W.] to speak privately.

No testimony was presented as to what was discussed
between [C.W.] and his mother. When Detective Williams
returned to the room, he asked if they had made their decision
as to whether they wished to speak to him. He received an
affirmative response from [C.W.]’s mother and the substantive
portion of the interview began. [C.W.] did not specifically waive
his right to remain silent either orally or by executing a written
waiver. However, he never indicated that he did not want to
speak with Detective Williams and did, in fact, give oral
statements to the detective during the interview.

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The interview lasted approximately one hour and forty
minutes. Ms. Pierce was present the entire time and was
present when [C.W.] penned a written statement after he spoke
with the detective. [C.W.], Ms. Pierce, and the detective signed
the written statement. Detective Williams testified that he was
dressed in plain clothes and did not use any physical, verbal or
psychological intimidation during the interview and did not
coerce or force [C.W.] to speak to him or to provide a written
statement.

Based on the evidence presented at the Suppression
Hearing on August 14, 2014, we believe that [the juvenile
master’s] decision to deny suppression of [C.W.]’s statements to
Detective Williams was correct. [C.W.], age 14, appeared to be
of normal intelligence and gave responsive answers to the
detective.2 His mother was present during the entire process
and no evidence of psychological or physical abuse was
presented. [C.W.] himself testified that he was not threatened
to give any statements or to talk with the detective. [C.W.] and
his mother were informed of [C.W.]’s Miranda rights and were
provided an opportunity to discuss those rights in private. See
Commonwealth v. Waters, 483 A.2d 855, 859 (Pa. Super.
1984). Further we agree that Ms. Pierce acted as an interested
adult on behalf of [C.W.]. Though she may have been angry and
frustrated with the actions of [C.W.], such disposition does not
render her uninterested. See Commonwealth v.
Laudenberger, 715 A.2d 1156, 1159 (Pa. Super. 1998)
(determining that “the fact that appellant’s mother was upset
with him is as indicative of concern as it is of disinterest.”).
_____________________
2
Although counsel for [C.W.] argued that [C.W.]
possessed below level intelligence, no evidence was
presented to substantiate that argument. As highlighted in
the Commonwealth’s Letter Brief, no intelligence testing
results, school performance records or education
plans/placement records were submitted to [the juvenile
master] for her consideration. Defense counsel suggested
that [C.W.] demonstrated below average intelligence when
he did not know his social security number and made a
minor mistake reciting his address during his interview.
The Commonwealth highlighted that [C.W.] did, in fact,
correctly state his full name, age, birth date, height,

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weight, and city of birth. We do not believe that a minor
mistake and unawareness of a social security number
equates to below average intelligence in a 14 year old.
Furthermore, Detective Williams testified that [C.W.]
appeared to understand the questions posed by the
detective and gave appropriate answers to those questions
during the interview.
_____________________

While it is true that [C.W.]’s mother indicated their desire
to speak with the police, and [C.W.] himself did not, evidence
was presented that [he] answered questions during the interview
and did not give any indication to Detective Williams that he
either wished to speak to an attorney, wished to stop the
interview, or refused to answer any questions posed to him by
the detective. Pursuant to Commonwealth v. Marrero, 687
A.2d 1102, 1106 (Pa. 1996), “where a defendant neither
explicitly invokes his Miranda rights nor declines to answer
questions asked of him, there is no invocation of those rights.”
(citing Commonwealth v. Beavers, 492 Pa. 522, 532, 424
A.2d 1313, 1318 (1981)). We do not believe that [C.W.]’s
actions constituted an invocation of his Miranda rights.

Juvenile Court Opinion, 6/5/2015, at 8-11.

We agree with the juvenile court’s well-reasoned decision. Based on

the record, C.W.’s conduct, in conjunction with his mother’s actions, “clearly

manifested an intent to waive his rights[.]” Cohen, 53 A.3d at 886. We

emphasize the following factors: (1) C.W. consented to having the interview

audio-recorded; (2) the officer read C.W. his Miranda rights and C.W.

indicated that he understood them; (3) C.W. was given time to speak with

his mother privately before answering any questions; (4) although his

mother indicated he was ready to speak, C.W. did not indicate that he did

not want to speak with the officer; (5) C.W. did give an oral statement to

police; and (6) C.W. provided a written statement as well. As such, we

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conclude C.W.’s conduct manifested his understanding of his Miranda

rights, and he validly waived the same by speaking with the interrogating

officer. C.W.’s argument that he, himself, did not explicitly waive his rights,

but rather it was his mother,8 does not persuade us otherwise. Further, in

accordance with Marrero, supra, and Beavers, supra, C.W. never

attempted to invoked his Fifth Amendment privilege when he began to speak

freely with the officer and never failed to respond to a question. Therefore,

we find no abuse of discretion in this regard, and the juvenile court did not

err in denying his motion to suppress.

In C.W.’s next issue, he claims the juvenile court erred in finding he

was an accomplice to harassment under 18 Pa.C.S. § 2709(a)(1). 9 C.W.’s

Brief at 12. First, C.W. contends his mere presence at the scene does not

make him an accomplice. Id. at 13. Second, he argues that his filming of
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8
Moreover, we note his mother’s presence was just one factor to consider
in assessing the validity of his waiver.
9
With respect to the harassment offense, the juvenile court indicated the
June 10, 2014, petition alleging delinquency as well as Exhibit A (Offenses
Alleged on the Juvenile Petition) of the October 15, 2014, adjudicatory
hearing order pertain to harassment under Subsection 2709(a)(3) (“engages
in a course of conduct or repeatedly commits acts which serve no legitimate
purpose”). Juvenile Court Opinion, 6/5/2015, at 1 n.1. While the
Commonwealth did not move to amend the subsection, both parties and the
juvenile court proceeded with the hearing and ultimate adjudication as if
C.W. was charged with Subsection 2709(a)(1). Id. Accordingly, because
there was no surprise during the adjudication proceeding and C.W. does not
raise any prejudice argument with respect to the apparent scrivener’s error
on appeal, we will treat the matter as though C.W. was adjudicated pursuant
to Subsection 2709(a)(1).

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the incident does not make him an accomplice because he did not initiate

the attack and he was not the initial recorder. Id. Moreover, C.W. states,

“No evidence was presented that [he] was involved in that posting or that it

was viewable on any of [his] social media sites.” Id. Lastly, he alleges he

did not make any statements inciting or encouraging his co-defendants to

act. Id. at 14.

“In reviewing the sufficiency of the evidence, we consider
whether the evidence presented at trial, and all reasonable
inferences drawn therefrom, viewed in a light most favorable to
the Commonwealth as the verdict winner, support the jury’s
verdict beyond a reasonable doubt.” Commonwealth v.
Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert.
denied, Patterson v. Pennsylvania, 135 S. Ct. 1400, 191 L.
Ed. 2d 373, 2015 U.S. LEXIS 1333, 2015 WL 731963 (U.S.
2015). “The Commonwealth can meet its burden by wholly
circumstantial evidence and any doubt about the defendant’s
guilt is to be resolved by the fact finder unless the evidence is so
weak and inconclusive that, as a matter of law, no probability of
fact can be drawn from the combined circumstances.”
Commonwealth v. Watley, 2013 PA Super 303, 81 A.3d 108,
113 (Pa. Super. 2013) (en banc) (internal quotation marks and
citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an
appellate court, we must review “the entire record ... and all
evidence actually received[.]” Id. (internal quotation marks and
citation omitted). “[T]he trier of fact while passing upon the
credibility of witnesses and the weight of the evidence produced
is free to believe all, part or none of the evidence.”
Commonwealth v. Kearney, 2014 PA Super 97, 92 A.3d 51,
64 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d
102 (Pa. 2014). “Because evidentiary sufficiency is a question of
law, our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Diamond, 623 Pa. 475, 83 A.3d
119, 126 (Pa. 2013) (citation omitted), cert. denied, Diamond
v. Pennsylvania, 135 S. Ct. 145, 190 L. Ed. 2d 107 (2014).

In re C.R., 113 A.3d 328, 333-334 (Pa. Super. 2015).

The offense of harassment is defined, in relevant part, as follows:

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A person commits the crime of harassment when, with intent to
harass, annoy or alarm another, the person:

(1) strikes, shoves, kicks or otherwise subjects the other
person to physical contact, or attempts or threatens to do
the same[.]

18 Pa.C.S. § 2709(a)(1). In order to meet its burden of proof under this

section, the Commonwealth must “prove [the] appellant had the intent to

harass, annoy or alarm.” Commonwealth v. Wheaton, 598 A.2d 1017,

1020 (Pa. Super. 1991). “Anything less than a showing of intent is

insufficient.” Id. (citation omitted). “An intent to harass may be inferred

from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d

719, 721 (Pa. Super. 2013) (citation omitted).

C.W. was found to be an accomplice to the harassment charge

pursuant to 18 Pa.C.S § 306, which provides, in pertinent part:

§ 306. Liability for conduct of another; complicity

(a) General rule.—A person is guilty of an offense if it is
committed by his own conduct or by the conduct of another
person for which he is legally accountable, or both.

…

(c) Accomplice defined.—A person is an accomplice of another
person in the commission of an offense if:

(1) with the intent of promoting or facilitating the
commission of the offense, he:

…

(ii) aids or agrees or attempts to aid such other
person in planning or committing it[.]

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18 Pa.C.S. § 306.

Here, the evidence presented at the adjudication hearing, including the

video at issue, established that C.W. and his two co-defendants entered the

cafeteria together. They congregated near the table where the victim and

his two friends were playing cards. One co-defendant, F.R., operated the

camera, announced the video they were making was called “Smack Cam

Part 3,” and told the second co-defendant, J.W., to hit the victim’s head.

J.W. then walked up to the victim from behind and smacked him on the back

of the head. F.R. handed the camera to C.W. to continue filming the

incident. While C.W. filmed, F.R. ran his hand through the victim’s hair,

commented on its smoothness, and said the victim could be his daughter.

F.R. tried to procure the phone of the victim’s friend to call his mother.

During the filming, C.W. is heard giggling, moaning, and sighing. C.W. then

gave the camera to F.R., who continued filming and made a derogatory

comment toward the victim’s friend.

As provided above, the totality of the evidence presented in the matter

at issue, viewed in the light most favorable to the Commonwealth,

establishes that C.W. acted as an accomplice in committing the harassment

offense. He entered the cafeteria with his two co-defendants, he stood by as

F.R. smacked or struck the victim on the back of the head, and he also took

part in filming the incident. F.R.’s intent to harass can be established by

circumstantial evidence, in which he interacted with the victim and struck

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him with the purpose of annoying him. See 18 Pa.C.S. § 2709(a)(1); see

also Wheaton, supra. Moreover, C.W. was not merely present at the

scene as his actions demonstrated an intent to aid F.R. in committing the

offense. See Pa.C.S. § 306. Likewise, the fact that he did not engage in

any activity regarding the uploading of the video to social media is of no

consequence. It is the juveniles’ actions at the time of the incident that is

the focus of our inquiry. Therefore, C.W. is criminally responsible for the

acts of his co-defendants, and he was properly adjudicated of harassment.

In C.W.’s final argument, he claims the juvenile court erred in finding

the Commonwealth proved he was an accomplice to the offense of ethnic

intimidation under Section 2710. See C.W.’s Brief at 14. He notes, “There

are no reported cases addressing accomplice liability for ethnic intimidation,

and this Court has never upheld a conviction for ethnic intimidation in the

absence of either extreme violence or an ongoing course of conduct.” Id. at

15. Moreover, C.W. asserts case law has demonstrated that “a person does

not commit ethnic intimidation simply by using an isolated racial slur during

the commission of an offense; more is needed to demonstrate the

requirement of hatred.” Id. at 16. Lastly, he contends:

[T]he Commonwealth presented no evidence that [C.W.] acted
with the intent to promote or aid that offense, as is required to
be an accomplice under Section 306. Ethnic intimidation is not a
result-based offense; it is not concerned with the outcome of
prohibited conduct. Rather, it is an intent-based offense
concerned only with why some prohibited conduct occurred. It is
an offense committed, or not committed, solely within the heart
and mind of a particular actor. In adjudicating [C.W.] as an

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accomplice to ethnic intimidation, the Court necessarily found
that he specifically intended to promote or facilitate the offense
of ethnic intimidation, and further he took or attempted some
action in furtherance of that offense. In so finding, the Court
must also have found that [C.W.] was aware of, and supported,
F.R.’s internal motivation and racial animus. The Commonwealth
simply presented no evidence from which that finding can be
reasonably inferred.

Id. at 16-17.

Keeping our standard of review in mind with respect to sufficiency of

the evidence, we note the following. The offense of ethnic intimidation is

defined as:

A person commits the offense of ethnic intimidation if, with
malicious intention toward the race, color, religion or national
origin of another individual or group of individuals, he commits
an offense under any other provision of this article or under
Chapter 33 (relating to arson, criminal mischief and other
property destruction) exclusive of section 3307 (relating to
institutional vandalism) or under section 3503 (relating to
criminal trespass) with respect to such individual or his or her
property or with respect to one or more members of such group
or to their property.

18 Pa.C.S. § 2710(a).10 “Malicious intention,” under this section, “means

the intention to commit any act, the commission of which is a necessary

element of any offense referred to in subsection (a) motivated by hatred

____________________________________________

10
“Ethnic intimidation is by its explicit terms a contingent crime, proof of
which is dependent upon the establishment of a predicate crime.”
Commonwealth v. Magliocco, 806 A.2d 1280, 1285 (Pa. Super. 2002).
As indicated above, the juvenile court found that C.W. committed the
predicate offense of harassment. 18 Pa.C.S. § 2709(a)(1).

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toward the race, color, religion or national origin of another individual or

group of individuals.” 18 Pa.C.S. § 2710(c).

Our Courts have had limited opportunity to apply [S]ection
2710. Nevertheless, our decisions suggest that “malicious
intention” as required by the language of [S]ection 2710(c) may
be found to exist only where the circumstances establish that the
defendant was motivated by animus toward the victim’s race or
ethnicity and targeted the victim expressly on that basis.

Commonwealth v. Sinnott, 976 A.2d 1184, 1189-1190 (Pa. Super. 2009).

In finding there was sufficient evidence to support the charge of ethnic

intimidation, the juvenile court opined:

There are a limited number of decisions by the appellate
courts pertaining to ethnic intimidation. In Commonwealth v.
Rink, 574 A.2d 1078 (Pa. Super. 1990), a conviction of ethnic
intimidation was upheld where “the defendant participated with a
group of teenagers in the beating of a black male in front of the
black male’s residence. During the incident, the defendant was
heard urging the group to “kill the nigger; get him.” In re:
M.J.M.[,858 A.2d 1259, 1263-1264 (Pa. Super. 2004)] (citing
Rink at 1080). The defendant also punched the victim’s wife
and called her “bitch” and “nigger.” Id. The Superior Court
affirmed the decision of the lower court, determining that the
remarks were racially motivated and not the result of
emotionally charged behavior. In re: M.J.M., at 1263-1264
(citing Rink at 1081).

In Commonwealth v. Ferino, 640 A.2d 934, 935 (Pa.
Super. 1994), however, the Superior Court determined that
shouting, “I’m going to kill you, you f—king nigger” immediately
prior to firing a gun at the victims (one black and one white)
[]did not constitute sufficient evidence that racial prejudice was
the [“]underlying cause for the prohibited behavior.” Id. at 938.
The Court explained that “the [defendant’s] conduct was isolated
in nature, brief in its execution and unattended by any trappings
consistent with a finding that the terroristic threat [the predicate
crime] had an origin of malicious intent ‘motivated by a hatred
toward race, color … or national origin’ of the victim.” Id.

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In Commonwealth v. Sinnott, 30 A.3d 1105 (Pa. 2011),
the Supreme Court of Pennsylvania was called upon to
determine “[w]hether, to prove ethnic intimidation pursuant to
18 Pa.C.S. § 2710, the Commonwealth must prove the
defendant targeted the victim solely based on the victim’s race,
color, religion, or national origin.” Id. at 1107. In that case, the
victim left her mother’s home to investigate screaming and
cursing that she heard outside. Outside, the victim encountered
the defendant, “a tenant and employee of her father, throwing
power tools her father had given him against the concrete
steps.”

When [the victim] asked [the defendant] what was
wrong, he said her father cheated him, he was going to
take every house her father owned, and then told her,
“[Y]ou, M-F’ers, are going to have to go back to Mexico,
you wetbacks.” He also called [the victim] a “fucking
bitch” and “fucking whore.” [The victim] told [the
defendant that] she was not Mexican, but Puerto Rican,
and therefore had as much right to be in the United States
as he did; [the defendant] replied, “No you don’t, you
wetback, go back to the Alamo.” [The victim] testified
[the defendant] kept talking about the Alamo and how her
father “did him dirty,” and threatened to kill her father for
cheating him.

Sinnott at 1106 (internal citations omitted).

The defendant eventually went back in his own home, only
to emerge again, “wielding a power drill, which he kept revving.
He walked around the block for about 45 minutes, and [the
victim called the police.] Id. The police arrived and the
defendant went back in his home. After the police left, the
defendant came back outside, and approached the victim and
her mother. The victim “instinctively put her hands up to stop
him. Her long nails got caught in his shirt, and as the two
struggled, four of her nails were ripped from their nail beds,
causing her fingers to bleed.” Id. The defendant was charged
with a variety of crimes, including ethnic intimidation.

After a discussion of the facts and reasoning behind the
Ferino decision and examination of a Court of Appeals of
Michigan decision regarding a similar issue, the Court in Sinnott
determined that “all that is required [of the ethnic intimidation

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statute] is that the ethnically malicious intent be present,
concurrent with the underlying criminal act,” holding that “the
intent element is satisfied if there is evidence that ethnic malice
was a motivator for the defendant’s criminal act, it need not be
the sole motivator.” Sinnott at 1110.

In the case at bar, the entire criminal episode was
captured on video, and posted to the Internet as a “smack cam.”
After Detective Williams learned about the incident and reviewed
the video recording of the incident, he interviewed [C.W.]
concerning the use of the term “pinks.”

[ADA Dimmig]. So, did you ask … C.W. about the term
“pink?”

[Detective Williams]. Yes.

Q. And what did C.W. tell you about the term “pink?”

A. It was a racial term.

Q. A racial term?

A. Yes.

Q. Not a pinko commie.

A. No.

Q. And not a “pink” homosexual.

A. No.

Tr. at 103-104:19-5.

While it is undisputed that [C.W.] was not the individual
who actually smacked N.G. in the head, it is clear from the
videotape, and from [C.W.]’s statements to Detective Williams
that he “aided or agreed or attempted to aid” the actual
aggressor in smacking N.G., an action that was based, at least in
part, on N.G.’s race. When [C.W.] and his friends initially
approached N.G. and his friends seated at the table in the lunch
room, they did so as a unit. It was clear that [C.W.] did not just
happen to be in the room in close proximity to the incident.

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[C.W.] is initially seen on the approach to the table. Later, the
initial person filming the “smack cam” hands the camera over to
[C.W.], who continues to film the interactions and is heard
laughing, giggling, and making other noises. Additionally, the
Commonwealth introduced [C.W.]’s statement, which appears to
address the victim, N.G.:

I know you guys are probably mad at the fact that my
friends were making front of you because your race and
how different ya’ll look from every body else, and when
one of my friends slaped cam you, and tryed to take you
guys phone.

Comm. Exhibit 2, October 15, 2014 (spelling errors in original).

Juvenile Court Opinion, 6/5/2015, at 18-21.

We agree with the court’s analysis. Contrary to C.W.’s argument, and

as explained above, C.W. was not merely present at the scene and his

actions were sufficient to conclude that he acted as an accomplice.

Moreover, we point to his confession, which confirms C.W. and his friends

targeted and antagonized the victim because of his race.

Furthermore, C.W.’s reliance on case law that a single derogatory

comment cannot support a finding of ethnic intimidation is misplaced as

Ferino is distinguishable from the present matter. In Ferino, the evidence

merely established the defendant aimed and fired a weapon in the direction

of the victims, which was preceded by a pejorative and derogatory threat.

Here, C.W. and his cohorts entered the cafeteria with the intent to film and

assault the victim because he was of a different race. C.W. admits that their

actions were based on race, which establishes a malicious racial animus.

See Sinnott, 976 A.2d at 1189-1190. Accordingly, we conclude the record

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contains sufficient evidence to sustain C.W.’s adjudication for ethnic

intimidation. Therefore, we affirm the order of disposition.

Dispositional order affirmed.

Judge Lazarus joins the memorandum.

Justice Fitzgerald files a concurring and dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/27/2016

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