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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: J.L.W., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: J.L.W. :
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:
: No. 187 WDA 2020
Appeal from the Dispositional Order Entered August 23, 2019
In the Court of Common Pleas of Mercer County Criminal Division at
No(s): CP-43-JV-0000074-2017
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY LAZARUS, J.: FILED: APRIL 9, 2021
J.L.W. appeals from the dispositional order, entered in the Court of
Common Pleas of Mercer County, following his adjudication of delinquency for
receiving stolen property (RSP),1 a second-degree felony. J.L.W. was placed
on administrative supervision and ordered to pay court costs. After careful
review, we affirm.
On June 27, 2017, the Mercer County Juvenile Probation Office filed a
delinquency petition against J.L.W.2 alleging that on June 22, 2017, J.L.W.
stole a firearm from Joseph Gaston, the father of one of J.L.W.’s life-long
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1 18 Pa.C.S. § 3925(a).
2J.L.W. was sixteen years old at the time of the alleged offense. By the time
of the disposition, he had already reached his eighteenth birthday.
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friends, L.G. Gaston, a police officer, filed a report with the Sharon Police
Department when he realized the gun was missing from his home safe.
Prior to hearings on the delinquency petition, J.L.W. filed an omnibus
pre-trial motion to suppress statements he made while in custody.3 At the
suppression hearing,4 Sharon Police Officer Ryan M. Chmura, a co-worker and
personal friend of Gaston’s, testified. Officer Chmura testified that on June
23, 2017, Gaston had called him and told him that “he had reason to believe
that his stolen firearm” was at 185 Logan Avenue in the City of Sharon. N.T.
Suppression/Adjudicatory Hearing, 7/22/19, at 11. Officer Chmura proceeded
to the address armed and in full police uniform; when he arrived at the
residence, he observed Gaston and J.L.W. on the porch of the abode. Id. at
11, 15. Patrolman Paul Lehman, also from the Sharon Police Department,
was on the scene, armed and in uniform, and was “clearing the semiautomatic
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3 Several motions and petitions were submitted after the juvenile petition was
filed and prior to the adjudication, resulting in more than a two-year delay
before the dispositional order was entered against J.L.W. Those motions
included: a motion to disqualify the district attorney and dismissal of the
criminal information, a notice of insanity or mental infirmity defense, a motion
for appointment of a special prosecutor, a petition for specialist fees, a motion
to rescind referral to another district attorney, a motion to compel discovery,
a motion to exclude expert report, and a motion in limine. Juvenile’s Brief, at
7-11.
4 At the beginning of the adjudicatory hearing, the court heard argument on
J.L.W.’s pre-trial suppression motion. The parties agreed to incorporate
Officer Chmura’s suppression hearing testimony into the Commonwealth’s
adjudicatory hearing testimony in its case-in-chief. See N.T.
Suppression/Adjudicatory Hearing, 7/23/19, at 92-93; see also N.T.
Adjudicatory/Dispositional Hearing, 8/23/19, at 6.
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pistol” to make it safe to handle. Id. at 11-12.5 Officer Chmura testified that
when he arrived on the scene, he asked J.L.W. “how could you do this . . . for
all [Gaston] did for you.?” Id. at 43.
Officer Chmura transported J.L.W. to the local police department,
unrestrained, in his police cruiser. At the station, he interviewed J.L.W. about
the incident, with his mother present, after having administered J.L.W. his
Miranda6 rights. During the interview, J.L.W. admitted to taking the firearm
from Gaston’s residence, stating that he had done so for “protection.” Id. at
21. Officer Chmura also testified that J.L.W. gave two written statements to
the police; they were both introduced into evidence during the suppression
hearing, with no objection by defense counsel. Id. at 22-23.7 In the first
statement, J.L.W. admitted to taking the gun, specifically stating, “L[.G.] had
left the guns out of the safe and I took one thinking I could use it for
protection.” Id. (emphasis added). In a separate letter, J.L.W. wrote, “Hey,
[Gaston]. This is me apologizing for stealing from you. I don’t know what
I was thinking when I did it, I hope you forgive me one day. No matter what,
just know that I love you and the family.” Id. at 22 (emphasis added).
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5 Officer Chmura also testified that an armed, uniformed corporal arrived a
couple seconds after he arrived on the scene. Id. at 38.
6 Miranda v. Arizona, 384 U.S. 436 (1966).
7 The Commonwealth noted at the adjudicatory hearing that it was “going to
resubmit th[e four exhibits it entered at the suppression hearing] for the
actual adjudication.” N.T. Suppression/Adjudicatory Hearing, 7/23/19, at 77.
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Following the pre-trial hearing, the court found that J.L.W. was in custody at
the police department, where he was properly advised of his Miranda
warnings prior to making any statements, and, thus, denied J.L.W.’s motion
to suppress. Id. at 62. The court then proceeded to the first of two days of
adjudicatory hearings, held on July 23, 20198 and August 23, 2019.
Gaston testified at the July 23, 2019 adjudication hearing that he
received a text from his son, L.G., who told him “J.M. has a Beretta .40.” N.T.
Juvenile Hearing, 7/23/19, at 69. Gaston received that text two days after he
noticed the gun was missing from the safe. After receiving the text, Gaston
called J.L.W., who had spent the night at Gaston’s house the day before
Gaston realized his gun was missing. Id. Gaston asked J.L.W. “where he was
at [sic]” and J.L.W. told he him he was at J.M.’s house. Id. Gaston then told
J.L.W. that he “want[ed his] F-ing gun back now.” Id. Gaston hung up the
phone, called 9-1-1, and then called Officer Chmura on his personal cell phone
to tell him that J.L.W. had stolen his firearm. Id. at 74-75. Officer Chmura
met Gaston at J.M.’s residence. Id. at 11-12. When Gaston arrived at the
scene, he received a text message from J.L.W. telling him that that gun was
outside on the porch. Id. 77, 79.
Gaston further testified that L.G. and J.L.W. had been friends for 13
years, that he and his son had a close relationship with J.L.W., that he was a
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8 The dates on the docket and on the transcript of the notes of testimony from
the first adjudicatory hearing are inconsistent. For consistency purposes, we
will use July 23, 2019, the date on the transcribed hearing notes, as the
appropriate date.
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father figure to J.L.W., and that J.L.W. spent at least one night a week at his
house. Id. at 63-64, 81. Gaston also coached J.L.W. in high school football
and wrestling. Id. at 82. Gaston testified that L.G. had access to his safe,
which is operated by a keypad, and that he had given L.G. permission in the
past to go into the safe. Id. at 65-66, 82.
After Gaston’s testimony, the Commonwealth stated that it decided not
to call L.G. as a witness,9 and rested its case. At that time, J.L.W. orally
moved for a judgment of acquittal. Id. at 92-93. The trial court denied the
motion. Id. at 93. J.L.W. renewed his motion for judgment of acquittal at
the beginning of the second day of the adjudicatory hearings. N.T.
Adjudicatory/Dispositional Hearings, 8/23/19, at 6. The court denied the
motion for a second time. Id. At the August 23, 2019 adjudicatory hearing,
Officer Lehman and J.L.W. testified. Officer Lehman testified that on June 23,
2017, he responded to a call at 185 Logan Street in Sharon. When he arrived
at the residence, Officer Lehman observed a black handgun on the front porch.
Id. at 11. He photographed it, secured it, unloaded it, and placed it in his
patrol vehicle. Id. Several other officers arrived on the scene. Id. at 12. At
some point thereafter, J.L.W. came to the front porch of the house. Id.
Officer Lehman testified that he was present when J.L.W. was read his rights
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9 The defense indicated that it intended to call L.G. at the continued
adjudicatory hearing. However, only J.L.W. testified at the second hearing
date. The defense rested its case immediately following his testimony. See
N.T. Adjudicatory/Dispositional Hearing, 8/23/19, at 31.
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at the police station and when he executed the Miranda waiver form, but that
he did not participate in interviewing J.L.W. Id. at 13-14.
J.L.W. testified that on the day before the gun was reported stolen,
Gaston had taken him and the entire high school football team to a football
camp. J.L.W. testified that L.G. and J.M. also traveled with him and Gaston
to the camp. Id. at 17. At the camp, J.L.W. testified that football players
from another team tried to fight his team. Id. at 18. J.L.W. also testified that
on the drive back from camp, he and some of his teammates, including L.G.,
discussed the situation with the other team in Gaston’s car. Id. at 18-19.
J.L.W. testified that he and his teammates received threatening text messages
from the other team indicating that they had guns and that they were going
to be in Sharon. Id. at 20. J.L.W. told L.G. about the threats and told L.G.
that he was scared. Id. L.G. said that “if he could help [J.L.W.] in any way[,]
that he would.” Id. J.L.W. testified that he watched L.G. retrieve his father’s
gun from the safe and gave it to J.L.W. Id. at 21. J.L.W. testified that after
L.G. gave him the gun, he went to J.M.’s house with it, but that he did not
intend to keep the gun because he did not need it for more than a few days
to protect himself. Id. at 22. J.L.W. testified that he only wanted the gun to
scare off any opposing players that came to Sharon, and that he never planned
to use the weapon. Id. at 25. J.L.W. also testified that he did not have
permission from Gaston to take the firearm. Id. at 24.
After the defense rested, it recalled J.L.W. to the stand to question him
about his written statements made to Officer Chmura at the police station.
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On re-direct examination, J.L.W. admitted that he had, in fact, written those
statements in which he “apologiz[ed] for stealing from [Gaston]” and indicated
that “L.G. had brought the guns out of the safe.” Id. at 41-42. J.L.W. noted
that these statements were inconsistent with his prior testimony that he had
not, in fact, stolen the gun, but that L.G. had given him permission to take it
and handed the gun to him to keep for a few days for protection. Id. at 42.
J.L.W. testified that at the time he made the statements, he was “confused .
. . scared [and] never thought that this was going to happen as a result of
having the gun.” Id.
At the conclusion of the hearing, the court adjudicated J.L.W.
delinquent, finding him guilty, beyond a reasonable doubt, of RSP, and not
guilty of theft by unlawful taking and possession10 of a firearm by a minor.11
Id. at 43-44.12 J.L.W. filed a timely post-dispositional motion on September
3, 2019. The trial court failed to rule on the motion, and also failed to enter
an order deeming the order denied by operation of law after 30 days. See
Pa.R.J.C.P. 620(B)(2)(b).13 On February 3, 2020, J.L.W. filed a notice of
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10 18 Pa.C.S. § 3921(a).
11 18 Pa.C.S. § 6110(a).
12The court made two points before issuing its disposition: “First off, I do
agree that the fact that Gaston never gave permission to [J.L.W.] speaks
volumes. Number 2, the fact that [J.L.W.] wrote a letter apologizing speaks
volumes and had he continued along that route, things may be different.” Id.
13After several rules to show cause filed by this Court, the trial court ultimately
determined that J.L.W. did, in fact, file a timely post-dispositional motion on
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appeal.14 He also filed a timely court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. J.L.W. presents the following
issue for our consideration: “Did the [c]ourt abuse its discretion and commit
an error of law by failing to grant [J.L.W.]’s [m]otion for [j]udgment of
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September 3, 2019, but acknowledged that it had not timely ruled on the
motion in accordance with Pa.R.J.C.P. 620. We decline to accept the trial
judge’s invitation to dismiss J.L.W.’s appeal because he failed to file his notice
of appeal within the proscribed 30-day appeal period after his motion would
have been deemed denied by operation of law, despite no such entry of an
order by the clerk of court denying of the post-dispositional motion under Rule
620. Pennsylvania Rule of Juvenile Court Procedure 620(B)(2)(b) clearly
states that, “[]i]f a timely post-dispositional motion is filed, the notice of
appeal shall be filed within thirty days of the date of entry of the post-
dispositional order denying the motion by operation of law in a case
where the judge fails to decide the motion[.]” Pa.R.J.C.P. 620(B)(2)(b)
(emphasis added). Here, the trial court ultimately entered an order denying
the post-dispositional motion by operation of law on June 30, 2020. See
Pa.R.A.P. 108(a)(1) (“[T]he day of entry shall be the day the clerk of the court
. . . mails or delivers copies of the order to the parties[.]”). To fault J.L.W.
for the court’s apparent operational breakdown and deny him the right to have
his appeal decided on its merits is simply contrary to established precedent.
See Commonwealth v. B.H., 138 A.3d 15, 19 n.7 (Pa. Super. 2016) (when
juvenile court took no action on juvenile’s post-dispositional motions for
months, juvenile’s delay in filing appeal excusable due to breakdown in court’s
operations); see also Pa.R.J.C.P. 620 (Disposition) (“If the motion is deemed
denied by operation of law, paragraph (D)(3) requires that the clerk of
courts enter an order denying the motion on behalf of the court and
immediately notify the attorneys . . . that the motion has been denied.
This notice is intended to protect the party’s right to appeal.”)
(emphasis added); Id. at (D)(3) (“When a post-dispositional motion is denied
by operation of law, the clerk of courts shall forthwith enter an order on behalf
of the court. Pursuant to Rule 167, the clerk of courts shall serve a copy of
the order [deeming the post-dispositional motion denied by operation of law]
upon each attorney and the juvenile, if unrepresented, that states the post-
dispositional motion is denied.”) (emphasis added).
14 See Pa.R.A.P. 905(a)(5) (“notice of appeal filed after the announcement of
a determination[,] but before the entry of an appealable order[,] shall be
treated as filed after such entry and on the day thereof”).
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[a]cquittal and in finding [J.L.W.] guilty beyond a reasonable doubt?”
Appellant’s Brief, at 6.
J.L.W. contends that the Commonwealth did not meet its burden to
prove his guilt for RSP where the “record is devoid of testimony evidencing
[his] knowledge or belief that the firearm was stolen,” Appellant’s Brief, at 19,
or of J.L.W.’s “intent to keep the gun.” Id. Specifically, J.L.W. argues that
the Commonwealth’s only evidence regarding how J.L.W. obtained the firearm
consisted of the testimony of Gaston, who testified that he had given his son,
L.G., permission to enter his safe in the past.
“A motion for judgment of acquittal challenges the sufficiency of the
evidence to sustain a conviction on a particular charge and is granted only in
cases where the Commonwealth fails to carry its burden regarding that
charge.” Commonwealth v. Sunealitis, 153 A.3d 414, 420 (Pa. Super.
2016). When reviewing a sufficiency of the evidence claim on an appeal from
a dispositional order following an adjudication of delinquency, our standard of
review is similar to the standard employed in criminal appeals alleging
insufficient evidence. We review the evidence to support the adjudication of
delinquency in the light most favorable to the Commonwealth as verdict
winner. See In re A.D., 771 A.2d 45, 48 (Pa. Super. 2001) (en banc).
In reviewing the sufficiency of the evidence to support the
adjudication below, we recognize that the Due Process Clause of
the United States Constitution requires proof beyond a reasonable
doubt at the adjudication stage when a juvenile is charged with
an act which would constitute a crime if committed by an adult.
Id. (citations and quotation marks omitted).
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Moreover,
[i]n 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) (citations omitted).
To sustain a conviction of receiving stolen property, the Commonwealth
must establish that the defendant “intentionally receive[d], retain[ed], or
dispose[d] of movable property of another knowing that it has been
stolen, or believing that it has probably been stolen, unless the property
is received, retained or disposed [of] with intent to restore it to the owner.”
18 Pa.C.S. § 3925(a) (emphasis added). In Commonwealth v. Stafford,
623 A.2d 838 (Pa. Super. 1993) (en banc), our Court further elaborated on
section 3925(a)’s element requiring knowledge of the property being stolen
or belief that it has been stolen:
[W]e expressly rule that the Commonwealth must first
establish that the goods in question are actually stolen in
order to sustain a conviction for receiving stolen property.
It is not enough that the Commonwealth proves only that: [(]1)
[t]he defendant received property of another; and [(]2) [h]e
received the property knowing it was stolen or believing it had
probably been stolen. The Commonwealth also must establish
that the property was actually stolen. By so ruling, we simply
require the Commonwealth to continue to prove an element of
the crime which “is both sound and firmly established in the case
law[.]”
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Id. at 840-41 (emphasis added). In Commonwealth v. Newton, 994 A.2d
1127 (Pa. Super. 2010), our Court noted that a defendant cannot be found
guilty of RSP “simply by retaining property that a reasonable person would
conclude is probably stolen. Under the [current statute], the defendant must,
at a minimum, harbor the personal belief that the item is probably stolen.”
Id. at 1131-32.
Instantly, J.L.W. testified at the adjudicatory hearing that: he watched
L.G. remove the handgun from his father’s safe in the basement; L.G. then
gave the gun to J.L.W. and told him to keep it for a few days for protection;
that he intended to return the gun after a few days; and J.L.W. knew he did
not have permission from Gaston to keep the gun. N.T.
Adjudicatory/Dispositional Hearing, 8/23/19, at 22-24, 30. However,
consistent with Officer Chmura’s testimony, J.L.W. also testified that he
executed two written statements while in custody: in the first statement,
J.L.W. admitted that he took a gun that “L[.G.] had left . . . out of [Gaston’s]
safe . . . thinking [he] could use it for protection;” and in the second
statement, J.L.W. apologized to Gaston “for stealing from [him].”15 Under
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15 The trial court also concluded that because J.L.W. retained the gun knowing
it belonged to someone else and knowing he did not have Gaston’s permission
to keep the gun, he was guilty of RSP. We do not believe that J.L.W.’s
admission that he took the gun without Gaston’s permission, alone, proves
that he also knew the gun was stolen or believed it was stolen for purposes of
finding him guilty under section 3925. See Commonwealth v. Campbell,
505 A.2d 262, 268 (Pa. Super. 1986) (en banc) (“For receiving stolen
property, the act is receiving[.] The mental element for receiving is that
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such circumstances, we conclude that the Commonwealth proved that J.L.W.
“intentionally receive[d], retain[ed], or dispose[d] of movable property of
another knowing that it ha[d] been stolen, or believing that it ha[d]
probably been stolen.” 18 Pa.C.S. § 3925 (emphasis added). See
Commonwealth v. Robinson, 128 A.3d 261, 268 (Pa. Super. 2015) (en
banc) (circumstantial evidence of guilty knowledge may include “the
defendant’s conduct or statements at the time of arrest”); see also
Commonwealth v. Rippy, 732 A.2d 1216 (Pa. Super. 1999) (factfinder free
to conclude vehicle returned to owners only because police were able to
recover it; factfinder free to believe defendant lied to owners when he
indicated it was his intent to return vehicle). Thus, the evidence, viewed in
the light most favorable to the Commonwealth as the verdict winner, was
sufficient to establish the elements of RSP beyond a reasonable doubt. In re
L.A, supra.16
Order affirmed.
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the defendant knew the property was stolen.”). However, because
J.L.W. apologized to Gaston for “stealing” from him, admitting to the fact that
the gun was stolen, we affirm the trial court’s dispositional order. See
Commonwealth v. Thompson, 778 A.2d 1215, 1223 n.6 (Pa. Super. 2001)
(it is well settled that we may affirm trial court on different grounds).
16Despite the fact that J.L.W. testified that L.G. had permission to retrieve
the gun from the safe and that L.G. gave the gun to J.L.W. for a few days for
protection, the trial court as the finder of fact, determined the weight to be
assigned to J.L.W.’s testimony. Id. We will not disturb these findings on
appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/2021
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