In the Interest of: D.S., a Minor

J-S70021-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: D.S., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: D.S., A MINOR

No. 3512 EDA 2015

Appeal from the Dispositional Order November 2, 2015
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0002195-2015
CP-51-JV-0002196-2015

BEFORE: OLSON, J., OTT, J., and MUSMANNO, J.

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

D.S., a minor,1 appeals from the order entered November 2, 2015, in

the Juvenile Division of the Philadelphia County Court of Common Pleas. The

juvenile court adjudicated D.S. delinquent on charges of possessing an

instrument of crime (“PIC”) and receiving stolen property (“RSP”), 2 and

entered a dispositional order placing him on probation and directing that he

remain in shelter care under the supervision of the Department of Human

Services. On appeal, D.S. challenges the sufficiency of the evidence

supporting his adjudication of PIC. For the reasons that follow, we affirm.

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1
D.S. was born in August of 1998.
2
18 Pa.C.S. §§ 907 and 3925(a), respectively.
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The juvenile court summarized the facts recounted during the

adjudication hearing as follows:

On October 20, 2015, Officer Daniel Levitt, Badge # 5482,
was assigned to the Northwest Task Force in the vicinity of the
2800 block of North 20th Street at 10:29PM. PO Levitt was
operating a police vehicle and pulled up to D.S. PO Levitt
approached D.S. to stop him for a curfew violation, because D.S.
appeared very young. D.S. stopped when requested. PO Levitt
asked D.S. for his age and D.S. informed PO Levitt that he was
seventeen years old. As a result of the curfew violation, PO
Levitt requested identification. D.S. reached into his bag and
swung his body around. The bag was a normal camping/book
bag, with a strap. [D.S.] repeatedly spun around, as PO Levitt
attempted to shine his flashlight into the bag, and [D.S.] kept
reaching in his bag. PO Levitt’s partner instructed D.S. to stop
spinning around. PO Levitt observed that D.S. was attempting
to shove a gun in the bag. D.S. readily stated that it was a “BB
gun.”

From the moment that the officers commenced the
investigation, D.S. appeared nervous, and was looking all
around. D.S.’s hands were shaking. D.S.’s heart was thumping
really heavily. The described interaction took place near a street
light.

PO Levitt recovered the firearm and placed it on a property
receipt. Said firearm was an extremely realistic looking pellet
gun. The firearm had a slide that racked, just like a real gun.
The CO2 cartridge part looked very real. The firearm had a
magazine that slid over like a real gun.

After recovering said firearm, PO Levitt searched the bag
and recovered two GPS systems, a knit hat and a knit mask, and
a pair of female Fuji sun glasses.

The GPS devices were placed on Property Receipt #
3224516. Lorraine Townsend was the lawful owner of one of the
GPS devices, valued at $140.00, that had been placed in her
2004 Jeep Liberty parked at 2144 Stenton Avenue at 9 pm that
night. Ms. Townsend did not know D.S., nor did she give him
permission to enter her vehicle or take the GPS device. Ms.
Townsend’s vehicle had not been damaged.

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Albert Foyer was the lawful owner of the second GPS
device, a Garm[i]n GPS valued at $300.00, that had been placed
in his 2005 gold Honda Pilot parked at 7900 Cedarbrook Avenue
at 5 pm that night. Mr. Foyer’s vehicle had not been damaged.

D.S. testified that he was on his way home from a friend’s
house, when he was stopped by the two police officers. D.S.
claims that the officers asked him for identification, and that
D.S. openly revealed that he had a BB gun. D.S. claims that he
was not nervous. D.S. claims that he was aware that the BB gun
was in the bag, but he did not know that anything else was in
the bag. D.S. admits that the book bag belonged to him, but
claimed that the book bag was in the possession of his “play
cousin,” Khalil Palmer. D.S. testified that Mr. Palmer had the
book bag at 8 or 9 o’clock that day, and that D.S. received the
book bag at 9:30 or 10 o’clock. D.S. claims that he did not look
inside of the book bag upon its return. Despite claiming not to
know what was in the bag on direct examination, D.S. admitted
knowledge of the “wave cap” which had been described by the
officer to be a knit hat and knit mask.

Juvenile Court Opinion, 3/21/2016, at 1-3.

On October 21, 2015, two juvenile petitions were filed against D.S.,

each charging him with one count of theft from a motor vehicle, receiving

stolen property, and possessing an instrument of crime. 3 An adjudication

hearing was held on November 2, 2015. At the conclusion of the hearing,

the juvenile court found D.S. committed the offenses of RSP and PIC at

Docket No. 2195-2015, and RSP at Docket No. 2196-2015, and adjudicated

him delinquent on those charges. The court found acquitted him of both

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3
See 18 Pa.C.S. §§ 3934(a), 3925(a), and 907.

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counts of theft from a motor vehicle.4 The same day, the juvenile court

directed D.S. remain in shelter care at CBS-Vision Quest, and placed him on

probation. This timely appeal followed.5

D.S.’s sole claim on appeal challenges the sufficiency of the evidence

supporting his delinquency adjudication on the charge of PIC.6 He argues,

first, the Commonwealth failed to prove the BB gun was a weapon or an

instrument of crime, as those terms are defined in the Pennsylvania Crimes

Code. D.S.’s Brief at 9. Next, he contends that, even if the BB gun

recovered from his book bag is considered an instrument of crime, the

Commonwealth failed to prove the requisite intent element of the crime,

namely, that he possessed the BB gun with the intent to employ it

criminally. Id. at 14.

Our review of a challenge to to the sufficiency of the evidence

supporting a delinquency adjudication is well settled:

When a juvenile is charged with an act that would constitute a
crime if committed by an adult, the Commonwealth must
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4
The court also dismissed the charge of PIC at Docket No. 2196-2015
because both PIC charges were based on D.S.’s possession of the BB gun.
See N.T., 11/2/2015, at 17.
5
On February 5, 2016, the juvenile court ordered D.S. to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
D.S. complied with the court’s directive and filed a concise statement on
February 25, 2016.
6
D.S. does not challenge his adjudication on two counts of RSP.

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establish the elements of the crime by proof beyond a
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 A.V., 48 A.3d 1251, 1252–1253 (Pa. Super. 2012) (quotation

omitted).

Here, D.S. challenges his adjudication on the charge of PIC. Section

907 of the Crimes Code provides, in relevant part:

(a) Criminal instruments generally.--A person commits a
misdemeanor of the first degree if he possesses any instrument
of crime with intent to employ it criminally.

(b) Possession of weapon.--A person commits a
misdemeanor of the first degree if he possesses a firearm or
other weapon concealed upon his person with intent to employ it
criminally.

****

(d) Definitions.--As used in this section, the following words
and phrases shall have the meanings given to them in this
subsection:

****

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“Instrument of crime.” Any of the following:

(1) Anything specially made or specially adapted for
criminal use.

(2) Anything used for criminal purposes and possessed by
the actor under circumstances not manifestly appropriate
for lawful uses it may have.

“Weapon.” Anything readily capable of lethal use and
possessed under circumstances not manifestly appropriate for
lawful uses which it may have. The term includes a firearm
which is not loaded or lacks a clip or other component to render
it immediately operable, and components which can readily be
assembled into a weapon.

18 Pa.C.S. § 907.

D.S. first contends the evidence was insufficient to establish the BB

gun recovered from his book bag was either a weapon or an instrument of

crime as defined by the statute. He argues a BB gun does not meet the

definition of a weapon because it is not “readily capable of lethal use.”

D.S.’s Brief at 11, citing 18 Pa.C.S. § 907(d). Moreover, he emphasizes the

Commonwealth failed to introduce any photographs of the gun, or ballistics

reports, and, without this additional evidence, a “functioning BB gun does

not automatically qualify as a weapon pursuant to Section 907[.]” Id. at 12.

Further, D.S. asserts the Commonwealth also provided “no evidence that

[the BB gun] was specifically made or adapted for criminal use,” and

therefore, it could not be considered an “instrument of crime.” Id. at 13.

The trial court, however, determined the recovered BB gun constituted

an “instrument of crime” under Section 907(d). Specifically, the court found

the gun was “used for criminal purposes and possessed by the actor under

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circumstances not manifestly appropriate for lawful uses it may have.”

Juvenile Court Opinion, 3/21/2016, at 3, quoting 18 Pa.C.S. § 907(d). The

juvenile court stated it was “well aware that BB guns can be used to commit

gun-point robberies, as well as for the thief’s self-protection during the

commission of thefts.” Id. at 4.

Our review of the record reveals the following. Officer Levitt testified

he stopped D.S. for a curfew violation at 10:30 p.m. N.T., 11/2/2015, at 2-

3. When the officer asked D.S. for identification, D.S. acted “very nervous”

and kept “spinning around” as he reached into his book bag. Id. at 4. The

officer then shined his flashlight in the bag, and observed D.S. “shoving a

gun into the book bag.” Id. Officer Levitt described the BB gun as “very,

very realistic looking.” Id. at 5. He explained:

[I]t looked like a real gun, your Honor. In fact, it even had a
slide on there that racks, just like a real gun would. There was
no – fake guns are supposed to have the plastic inserts on there,
different colors and it had none of that. It was so realistic where
the CO 2 cartridge part where you go to fire pellets with a pellet
gun. Actually had a magazine that slid over also like a real gun.

Id. Moreover, Officer Levitt also recovered from the book bag two recently

stolen GPS systems, a pair of female sunglasses, and a knit hat and mask.

Id. at 5-6.

Under these facts, we find no reason to disagree with the

determination of the juvenile court that the BB gun constituted an

“instrument of crime” as defined in the statute. As the juvenile court

explained in its opinion: “The totality of the circumstances leads this court

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to infer that D.S. possessed the BB gun, an instrument which this court

knows to be commonly used for criminal purposes, under circumstances not

manifestly appropriate for the lawful uses it may have.” Juvenile Court

Opinion, 3/21/2016, at 4-5. The Commonwealth was not required to also

prove the BB gun was “specially made or specially adapted for criminal use”

or that it met the definition of a “weapon.” 18 Pa.C.S. § 907. The statute is

disjunctive; proof that the BB gun was something “used for criminal

purposes and possessed [] under circumstances not manifestly appropriate

for lawful uses it may have” was sufficient to establish the gun was an

“instrument of crime.” 18 Pa.C.S. § 907(d). Accordingly, D.S.’s first

argument fails.7

Next, D.S. contends that, even if we conclude the BB gun constituted

an “instrument of crime,” the evidence was insufficient to demonstrate he

had the requisite “intent to employ it criminally.” D.S.’s Brief at 14. D.S.

asserts mere possession of an instrument of crime does not prove intent,

and the other items recovered from the book bag do not support an

inference that he used or intended to use the BB gun in the perpetration of a

crime, particularly when, as here, he was found not guilty of theft from a

motor vehicle. Id. at 14, 16. Rather, D.S. argues the juvenile court made
____________________________________________

7
The fact that the Commonwealth did not introduce into evidence any
photos or ballistics reports regarding the BB gun is of no moment. Police
Officer Levitt described the gun in detail in his testimony.

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“improper inferences based on the other items found in [his] book bag” and

engaged in “rampant speculation and conjecture.” Id. at 18, 19. He

contends the facts of his case are similar to those presented in In Re A.C.,

763 A.2d 889 (Pa. Super. 2000), and A.V., supra.

In A.C., the defendant cut the complainant’s ear with a knife during an

altercation. A.C., supra, 763 A.2d at 890. The court acquitted the

defendant on assault charges based upon its finding she used the knife in

self-defense. However, the juvenile court adjudicated her delinquent on the

charge of PIC. Id. On appeal, a panel of this Court reversed, concluding the

defendant’s acquittal of the assault charges on the basis of self-defense,

“precluded the trial court from finding that [she] possessed the requisite

intent to employ the knife criminally.” Id. at 891. Relying on the

Pennsylvania Supreme Court decision, Commonwealth v. Gonzalez, 527

A.2d 106 (Pa. 1987),8 the panel observed: “[A] conviction for PIC cannot

stand if the appellant is acquitted on the underlying charge on the basis of

self defense, because the factfinder cannot reasonably infer that the

defendant intended to make criminal use of a weapon that she employed
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8
In Gonzalez, the Supreme Court reversed the defendant’s jury conviction
of PIC, finding the evidence was insufficient to prove he possessed a shotgun
with the intent to employ it criminally when the jury acquitted him of murder
and voluntary manslaughter. Gonzalez, supra, 527 A.2d at 107. The
Court held “since [the defendant] did not commit a crime with the shotgun,
and no other evidence sufficient to support a finding of criminal intent was
presented at trial, [his] conviction or possessing an instrument of crime
must be reversed.” Id. at 108.

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solely in her defense.” Id. Moreover, the panel also rejected the trial

court’s inference that, because the defendant “experienced significant

discomfort from concealing and carrying the unsheathed six-inch knife[,]”

she must have intended to “employ the weapon criminally.” Id. at 891-892.

Likewise, in A.V., a panel rejected the trial court’s finding that the

defendant’s mere possession of counterfeit money, while outside his home in

violation of the terms of his probation, was sufficient to support a conviction

of PIC. In that case, the defendant was confined to house arrest during non-

school hours, as part of a probationary sentence. A.V., supra, 48 A.3d at

1252. A police officer stopped the defendant when the officer observed him

running down the street at 7:00 p.m. Id. A subsequent pat-down search

revealed four counterfeit $20 bills in the defendant’s pocket.

The panel declined to disturb the trial court’s first determination that

the bills met the definition of an “instrument of crime.” The panel reasoned:

“[T]he counterfeit bills were made for criminal use as [they] resembled

legitimate U.S. currency and could be illegally exchanged in a transaction,

which would constitute forgery and theft by deception.” Id. at 1253.

Nevertheless, the panel rejected the court’s subsequent determination

“that A.V.’s mere possession of counterfeit money showed his intent to use

the bills for a criminal purpose simply because there is ‘no lawful use’ for

counterfeit bills.” Id. at 1254. Rather, the panel explained the court’s

finding that the bills had no lawful purpose, “does not relieve the

Commonwealth of its burden to prove an actor’s intent to use the counterfeit

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money for a criminal purpose beyond a reasonable doubt.” Id. In that

case, the panel found there was no evidence demonstrating the defendant

intended to use the counterfeit bills for a criminal purpose. Id.

Conversely, in the present case, the juvenile court’s finding that D.S.

possessed the BB gun with the intent to employ it criminally was based on

more than D.S.’s mere possession of the gun. The court opined:

D.S. completely ignores the fact that the BB gun, was an
extremely realistic looking pellet gun, which was found alongside
a knit mask, a knit hat, a pair of female sun glasses, and two
stolen GPS devices, which appear to have been taken within a
few hours. D.S. is not a female. D.S. did not claim lawful
possession of any of the items mentioned. D.S. possessed all of
these items in the same bookbag, which he carried while
violating curfew. D.S. appeared to be hiding the contents of the
bookbag from the police officers, upon approach. D.S.’s evasive
behavior indicates consciousness of guilt, with regard to both the
possession of the instrument of crime, as well as the possession
of the stolen goods. When he testified, D.S. claimed that he
knew that the BB gun was in the bookbag, but he did not know
the stolen goods were in the same bag. D.S. did not provide any
explanation for why he had the BB gun. This court does not
believe that D.S. would know that the BB gun was in the bag,
while being unaware that the recently stolen items were also in
the bag.

Juvenile Court Opinion, 3/21/2016, at 3-4.

The juvenile court found the fact that D.S. had “all the tools of a

robber”9 in his book bag at the time of his arrest, which was within 90

minutes of when at least one of the GPS devices had been stolen, supported

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9
Juvenile Court Opinion, 3/21/2016, at 4.

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an inference that D.S. had stolen the devices himself. We agree this

inference is supported by the record.

Moreover, while we acknowledge the juvenile court acquitted D.S. on

the charges of theft from a motor vehicle, we do not find the decision in A.C.

controlling. First, the holding in A.C. is undermined by the Pennsylvania

Supreme Court’s recent decision in Commonwealth v. Moore, 103 A.3d

1240 (Pa. 2014).

In Moore, a jury acquitted the defendant of murder and assault

charges, presumably based on his claim of self-defense. However, the same

jury found him guilty of PIC. Id. at 1242. On appeal, a panel of this Court

reversed the PIC conviction, finding that the jury’s acceptance of the

defendant’s self-defense claim precluded a finding that the defendant

possessed the weapon with the intent to employ it criminally. Moore,

supra, 103 A.3d at 1243. In doing so, the panel specifically relied upon the

decision in Gonzalez, supra. On appeal, however, the Supreme Court

vacated the order of this Court, and remanded the case to the trial court for

reinstatement of the verdict. Id. at 1250. Specifically, the Supreme Court

held:

Gonzalez departed from the long line of cases from both this
Court and the United States Supreme Court which unequivocally
permit inconsistent jury verdicts and prohibit drawing inferences
from a jury’s verdict of acquittal. … As emphasized above, “[a]n
acquittal cannot be interpreted as a specific finding in relation to
some of the evidence.” In reversing the defendant’s PIC
conviction therein, Gonzalez departed from that longstanding
precept. Thus, given the lack of meaningful analysis in
Gonzalez, that the Gonzalez Court misconstrued

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[Commonwealth v. ]Watson, [431 A.2d 949 (1981),] and,
critically, that the decision was at odds with well established
case law, we now come to the conclusion that it must be
overruled.

Without resort to Gonzalez, the Superior Court’s decision
in the instant case cannot be supported, as none of the other
cases upon which the court relies permit a reviewing court to
reject a jury’s inconsistent verdict. Accordingly, although [the
defendant’s] murder and attempted murder acquittals may be
logically inconsistent with [his] PIC conviction, in light of our
enduring acceptance of inconsistent verdicts in Pennsylvania, we
conclude that the acquittals are not grounds for reversal of [the
defendant’s] PIC conviction, and, thus, we find the Superior
Court erred in holding otherwise.

Id. (internal citation omitted). Because the panel in A.C. also relied upon

the holding in Gonzalez, we find the decision in A.C. is no longer good law

on this point based upon the Supreme Court’s ruling in Moore.

Accordingly, turning to the present matter, the fact the juvenile court

entered inconsistent adjudications is not, itself, grounds for reversal of

D.S.’s PIC adjudication. Indeed, the fact D.S. was carrying a realistic

looking BB gun, at night, while also in the possession of stolen GPS systems,

supports the reasonable inference that he intended to “employ [the BB gun]

criminally.”10 18 Pa.C.S. § 907(a).
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10
We note the Commonwealth’s claim that D.S. “held the BB gun in his hand
when the officers approached” is not supported by the record.
Commonwealth’s Brief at 10. First, Officer Levitt never testified D.S. was
holding a BB gun in his hand. See N.T., 11/2/2015, at 2-8. Rather, the
officer stated that when he shined his flashlight in D.S.’s bag, D.S. was
“shoving a gun into the book bag.” Id. at 4. The more logical inference
from this testimony is that D.S. was attempting to further secrete the BB
gun in his book bag in the hopes that the officer would not see it while he
retrieved his identification.

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Therefore, because we conclude the evidence was sufficient to support

D.S.’s adjudication on the charge of PIC, we affirm the dispositional order on

appeal.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/27/2016

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