In the Interest of: M.C.R., a Minor

J-S77037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: M.C.R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: M.C.R.

No. 319 MDA 2016

Appeal from the Dispositional Order December 3, 2015
in the Court of Common Pleas of Berks County
Juvenile Division at No.: CP-06-JV-0000804-2015

IN THE INTEREST OF: M.C.R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA

APPEAL OF: M.C.R.

No. 320 MDA 2016

Appeal from the Dispositional Order December 3, 2015
in the Court of Common Pleas of Berks County
Juvenile Division at No.: CP-06-JV-0000473-2015

BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED NOVEMBER 16, 2016

In these consolidated cases,1 M.C.R., a minor, appeals from the

dispositional orders entered by the juvenile court following his adjudication
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
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as delinquent on the charges of arson, 18 Pa.C.S.A. § 3301(a)(1)(i), at

Docket No. 473-JV-2015, and burglary, 18 Pa.C.S.A. § 3502(a)(4), at

Docket No. 804-JV-2015. We affirm.

The juvenile court set forth the factual and procedural history of the

arson case at Docket No. 473-JV-2015, as follows:

Around midnight on October 13, 2014, [M.C.R.] met two female
friends, V.W.[, his former girlfriend,] and A.W., also juveniles, to
“hang out.” As the three of them walked the streets and
alleyways of the borough of Bernville, [M.C.R.] cut down
Halloween decorations and smashed pumpkins. At one point,
A.W. left the group and returned home.

Sometime between 2:30 a.m. and 3:00 a.m., [M.C.R.] and
V.W. came upon a detached garage that faced an alleyway and
was located behind the house at 117 West Third Street,
Bernville. A bag of trash was sitting approximately one foot in
front of the garage. [M.C.R.] asked V.W. for a zipper pouch
which she was carrying. He opened it and removed his lighter.
He then used the lighter to set the trash bag on fire. [M.C.R.]
and V.W. then ran and hid in a recycling dumpster located
approximately one-half block from the garage. After a short
period, [M.C.R.] and V.W. left the dumpster. Later that
morning, [M.C.R.]’s mother found him and took him home and
V.W. returned to her house.

[M.H.] and her two children . . . were asleep in the house
at 113 West Third Street when the fire was started. [M.H.] was
awakened at 3:30 a.m. by the barking of her dog and the sound
of someone pounding on her door. As she was proceeding
downstairs to investigate, she saw smoke coming up the
stairway. She then awakened her children and the three of them
escaped through a patio door at the back of the house. When
she exited, she saw that the garage was on fire and observed a
neighbor nearby, the person who had been banging on her door.
_______________________
(Footnote Continued)
1
This Court consolidated the appeals sua sponte on April 14, 2016.

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[M.H.] remained at the house until the fire was extinguished.
Several hours later, her younger child complained that he felt
sick. She took both children to the emergency room of St.
Joseph’s Hospital where they were diagnosed with carbon
monoxide poisoning and smoke inhalation.

Because the house sustained smoke damage from the fire,
[M.H.], her boyfriend, and their two children had to live at a
hotel for six weeks. Damage to the garage and house totaled
approximately sixty-four thousand dollars ($64,000.00).

After an extensive investigation, the Pennsylvania State
Police charged [M.C.R.] with arson [and several related
offenses].

The court held a hearing on October 13, 2015 and found
[M.C.R.] had committed the crime of arson.[2] On December 3,
2015, the court adjudicated him delinquent. [M.C.R.] filed a
post-dispositional motion on December 8, 2015, [challenging the
sufficiency and weight of the evidence supporting the arson
adjudication,] which was denied on February 11, 2016[,
following a hearing]. This [timely] appeal followed.

(Juvenile Court Opinion, 5/31/16, at 1-3) (some capitalization omitted).

M.C.R. filed a timely court-ordered concise statement of errors complained

of on appeal on March 18, 2016, challenging the sufficiency and weight of
____________________________________________

2
Relevant to this appeal, among the witnesses to testify at the hearing were
V.W., M.C.R., A.M.T. (a classmate of M.C.R.), and Pennsylvania State
Trooper John Burns, who investigated the fire and testified as an expert for
the Commonwealth. V.W. and M.C.R. essentially blamed one another for
setting fire to the bag of trash. (See N.T. Hearing, 10/13/15, at 50, 73).
On cross-examination, V.W. admitted that she set two fires subsequent to
October 13, 2014, to a sweatshirt and a book, when she was with M.C.R.
(See id. at 56-58). A.M.T. testified that M.C.R. admitted to her during class
that he set the October 13, 2014 fire with a lighter. (See id. at 38, 40-41).
She also testified that she is friends with V.W. and that she does not like
M.C.R. because of his distracting behavior in class. (See id. at 43). Trooper
Burns testified to his expert opinion that the fire was intentionally set. (See
id. at 27).

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the evidence supporting the arson adjudication. See Pa.R.A.P. 1925(b).

The court filed an opinion on May 31, 2016. See Pa.R.A.P. 1925(a).

The juvenile court set forth the factual and procedural history of the

burglary case at Docket No. 804-JV-2015, as follows:

[O]n November 20, 2015, [M.C.R.] broke into a detached, two-
car garage associated with [a] premises located on Lancaster
Avenue, Tulpehocken Township, Berks County, Pennsylvania,
and unlawfully took twelve firearms. . . . [M.C.R.] made a
written false statement to a Tulpehocken Township police officer
when he stated he had received the firearms from a friend,
knowing he had acquired them earlier from the burglary.

The Commonwealth charged [M.C.R.] with burglary [and
several other offenses arising from the incident].

On December 3, 2015, [M.C.R.] signed an admission form
while being represented by counsel and admitted that he
committed the crime of burglary. On that same day, based on
the admission, the court found beyond a reasonable doubt that
[M.C.R.] committed the crime of burglary and the remaining
charges were withdrawn without prejudice. Immediately
thereafter, the court adjudicated [M.C.R.] delinquent on the
charge of burglary and, inter alia, ordered him detained pending
placement at George Junior Republic Special Needs Program.

On December 8, 2015, [M.C.R.] filed a post-dispositional
motion and a hearing was scheduled for February 11, 2016.
However, this motion concerned issues that arose out of an
unrelated case[, the arson adjudication at Docket No. 473-JV-
2015.] The motion had nothing to do with the present case.
After the hearing, the court on February 11, 2016, denied the
post-dispositional motion. Thereafter, on February 23, 2016,
[M.C.R.] filed this [timely] appeal.

On March 3, 2016, the court ordered [M.C.R.] to file a
concise statement of errors complained of on appeal. In lieu of

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the concise statement, [M.C.R.]’s counsel, on March 18, 2016,
filed a statement of intent to file an Anders/McClendon brief[3]
because she believed there were no meritorious to appeal.

(Juvenile Ct. Op., 6/01/16, at 1-2) (quotation marks and some capitalization

omitted).

On appeal, M.C.R. raises the following two questions for our review,

both of which relate to the adjudication of delinquency for arson:

[1.] Whether the court erred in adjudicating [M.C.R.] delinquent
for [a]rson, 18 Pa.C.S.A. § 3301(a)(1)(i), where the evidence
presented at trial was insufficient to prove beyond a reasonable
doubt that [he] intentionally started the fire[?]

[2.] Whether the adjudication of delinquency against [M.C.R.] for
[a]rson, 18 Pa.C.S.A. § 3301(a)(1)(i), is so contrary to the
weight of the evidence presented as to shock one’s sense of
justice where the testimony provided by V.W. and A.M.T. was
incredible, unclear, influenced by ulterior motives, and
contradicted by the testimony of other witnesses[?]

(M.C.R.’s Brief, at 6 (statement of the questions involved)).4

In his first issue, M.C.R. argues the Commonwealth failed to present

sufficient evidence to support his adjudication of delinquency for arson.

(See M.C.R.’s Brief, at 15-18). M.C.R. challenges the element of intent, and

contends the Commonwealth failed to establish that he intentionally started

____________________________________________

3
See Pa.R.A.P. 1925(c)(4); see also Anders v. California, 386 U.S. 738
(1967); Commonwealth v. McClendon, 434 A.2d 1185 (Pa. 1981).
Counsel filed an advocate’s brief in this Court, and did not file an Anders
brief.
4
As we more fully discuss infra, M.C.R. attempts to raise a third claim,
relating to the burglary offense, at the end of the argument section of his
appellate brief. (See M.C.R.’s Brief, at 22-23).

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the fire. (See id.). M.C.R. takes issue with the testimony of the

Commonwealth’s expert witness, Trooper Burns, and he asserts that the

trooper’s testimony that the fire was intentionally set was speculative and

uncertain. (See id. at 16-17). M.C.R. also claims that the Commonwealth

did not offer any other witnesses who could state what caused the fire.

(See id. at 18). This issue does not merit relief.

In evaluating a challenge to the sufficiency of the evidence
supporting an adjudication of delinquency, our standard of
review is as follows:

When a juvenile is charged with an act that
would constitute a crime if committed by an adult,
the Commonwealth must 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.

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In re V.C., 66 A.3d 341, 348–49 (Pa. Super. 2013), appeal denied, 80 A.3d

778 (Pa. 2013) (citation omitted).

The juvenile court adjudicated M.C.R. delinquent on the charge of

arson. Arson is defined, in relevant part, as follows:

(a) Arson endangering persons.—

(1) A person commits a felony of the first degree if he
intentionally starts a fire or causes an explosion, or if he aids,
counsels, pays or agrees to pay another to cause a fire or
explosion, whether on his own property or on that of another,
and if:

(i) he thereby recklessly places another person in
danger of death or bodily injury, including but not
limited to a firefighter, police officer or other person
actively engaged in fighting the fire[.]

18 Pa.C.S.A. § 3301(a)(1)(i).

With respect to intent, the Crimes Code provides in pertinent part:

(1) A person acts intentionally with respect to a material
element of an offense when:

(i) if the element involves the nature of his conduct
or a result thereof, it is his conscious object to
engage in conduct of that nature or to cause such a
result[.]

18 Pa.C.S.A. § 302(b)(1)(i).

Regarding expert testimony, Pennsylvania Rule of Evidence 703

provides: “[a]n expert may base an opinion on facts or data in the case that

the expert has been made aware of or personally observed. . . .” Pa.R.E.

703. This Court has stated:

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expert testimony is incompetent if it lacks an adequate basis in
fact. While an expert’s opinion need not be based on absolute
certainty, an opinion based on mere possibilities is not
competent evidence. This means that expert testimony cannot
be based solely upon conjecture or surmise. Rather, an expert’s
assumptions must be based upon such facts as the jury would be
warranted in finding from the evidence.

Commonwealth v. Gonzalez, 109 A.3d 711, 727 (Pa. Super. 2015),

appeal denied, 125 A.3d 1198 (Pa. 2015) (citation omitted).

Here, on direct examination, Trooper Burns testified “that the most

likely cause of this fire was an intentionally set fire[.]” (N.T. Hearing,

10/13/15, at 27). During cross-examination, Trooper Burns further testified

“I believe this is an intentionally set fire, but I wasn’t priv[y] to the—my

ultimate conclusion was I didn’t know what caused the fire. . . . I found no

accidental causes[.]” (Id. at 28). M.C.R. maintains that Trooper Burns’

testimony in this regard was incompetent “speculation” and “does not rise to

the level of certainty required to provide an expert opinion.” (M.C.R.’s Brief,

at 16-17; see also id. at 13). We disagree.

Preliminarily, we observe that M.C.R. stipulated to Trooper Burns’

qualifications as a fire investigator and expert in the area of fire cause and

origin, and that M.C.R. did not object to Trooper Burns’ expert opinion that

the fire was intentionally set. (See N.T. Hearing, 10/13/15, at 21-22, 27).

Therefore, we agree with the Commonwealth that, to the extent M.C.R.

challenges the admission of Trooper Burns’ expert testimony regarding the

origin of the fire, that portion of his sufficiency argument is waived. See

Pa.R.A.P. 302(a); see also Commonwealth v. Baumhammers, 960 A.2d

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59, 73 (Pa. 2008), cert. denied, 558 U.S. 821 (2009) (“[I]t is axiomatic that

issues are preserved when objections are made timely to the error or

offense.”) (citations omitted); (see also Commonwealth’s Brief, at 8-9).

Further, after review of Trooper Burns’ testimony, we agree with the

juvenile court that his opinion regarding causation of the fire was not based

on speculation. The court explained:

Trooper Burns testified that he found no accidental causes
of the fire. The lack of an accidental source, plus the timeframe
from when the trash was placed at the curb until the time of the
fire, led the [t]rooper to conclude that the fire was intentional.
He said a randomly tossed cigarette probably would not have
ignited the material in the trash bags and that there was nothing
outside the garage, other than the trash bag, that would have
ignited in the presence of a flame. Once given the opportunity
to develop his initial statement, Trooper Burns’ opinion was that
the cause of the fire was intentional, not accidental[.] . . .

* * *

. . . [Trooper Burns’] opinion was not based upon conjecture or
surmise. He arrived at the scene shortly after the fire, examined
the garage’s interior and exterior, and applied his expertise in
determining that location of the fire’s origin and ruled out all
accidental causes. [The court] concluded that Trooper Burns’
opinion rested on a sturdy foundation and was competent to
prove that the fire was intentionally set[.]

(Juvenile Ct. Op., 5/31/16, at 6-8) (record citations omitted).

We also observe M.C.R.’s sufficiency claim centered on Trooper Burns’

testimony ignores V.W.’s testimony that she saw M.C.R. use his lighter to

ignite the bag of trash on fire. (See N.T. Hearing, 10/13/15, at 49-51).

Additionally, A.M.T.’s testimony corroborated V.W.’s testimony. (See id. at

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37-40). Thus, the Commonwealth presented ample evidence in addition to

Trooper Burns’ testimony indicating that M.C.R. intentionally set the fire.

Therefore, viewing the evidence in the light most favorable to the

Commonwealth, we determine the record fully supports the juvenile court’s

finding that M.C.R. intentionally set the fire. See In re V.C., supra at 348–

49. Accordingly, we conclude the evidence was sufficient to support M.C.R.’s

adjudication of arson under section 3301(a)(1)(i). M.C.R.’s first issue merits

no relief.

In his second issue, M.C.R. challenges the weight of the evidence

supporting his adjudication of arson. (See M.C.R.’s Brief, at 18-21). He

argues the testimony of V.W. and A.M.T. was incredible, contradictory, and

motivated by bias against him. (See id. at 19-21). With respect to V.W.,

he emphasizes that he used to date her, and that she admitted responsibility

for setting two other fires. (See id. at 19). Regarding A.M.T., M.C.R.

asserts that her testimony is tainted by the fact that she is friends with

V.W., and by her admission that she does not like M.C.R. because of his

distracting behavior in class. (See id. at 21). This issue does not merit

relief.

A weight of the evidence claim concedes that the evidence
is sufficient to sustain the verdict, but seeks a new trial on the
grounds that the evidence was so one-sided or so weighted in
favor of acquittal that a guilty verdict shocks one’s sense of
justice. Thus, we may reverse the juvenile court’s adjudication
of delinquency only if it is so contrary to the evidence as to
shock one’s sense of justice. Moreover, where the juvenile court
has ruled on the weight claim below, an appellate court’s role is
not to consider the underlying question of whether the verdict is

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against the weight of the evidence. Rather, this Court is limited
to a consideration of whether the juvenile court palpably abused
its discretion in ruling on the weight claim. Hence, a juvenile
court’s denial of a weight claim is the least assailable of its
rulings, as conflicts in the evidence and contradictions in the
testimony of any witnesses are for the fact finder to resolve.

In re A.G.C., 142 A.3d 102, 109 (Pa. Super. 2016) (citations and quotations

marks omitted).

In the instant case, the juvenile court found the testimony of V.W. and

A.M.T. credible. (See N.T. Hearing, 2/11/16, at 7). In support of this

finding, the court stated the following:

The court had an opportunity during the hearing to
observe all the witnesses and judge their credibility based upon
their testimony and demeanor. Any inconsistencies in the
evidence were minor and did not seriously impair the
truthfulness of V.W. and A.M.T. The credible testimony of these
two witnesses was consistent on the salient fact that [M.C.R.]
ignited the trash bag that caused the garage to catch fire. Thus,
the adjudication of delinquency was not contrary to the weight of
the evidence.

(Juvenile Ct. Op., 5/31/16, at 9-10).

In his appellate brief, M.C.R. simply asks this Court to re-weigh the

evidence and reevaluate the juvenile court’s credibility determinations

regarding V.W. and A.M.T., a task that is beyond our scope of review. See

In re A.G.C., supra at 109. Following our review of the record, we

conclude that the juvenile court did not palpably abuse its discretion in

denying M.C.R.’s weight of the evidence claim. See id. M.C.R.’s second

issue merits no relief.

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Finally, we note that M.C.R. purports to raise, for the first time, a third

argument near the conclusion of his brief, relating to his adjudication of

burglary at Docket No. 804-JV-2015. (See M.C.R.’s Brief, at 22-23).

Specifically, M.C.R. requests that this Court remand the matter to the

juvenile court for a determination of whether its disposition is consistent

with his need for treatment and rehabilitation, and the protection of the

public. (See id.). Relying on Commonwealth v. M.W., 39 A.3d 958 (Pa.

2012), M.C.R. asserts the juvenile court’s determination that he committed

the delinquent act of burglary does not, on its own, warrant an adjudication

of delinquency. (See M.C.R.’s Brief, at 22); see also M.W., supra at 959

(“hold[ing] that the Juvenile Act requires a juvenile court to find both (1)

that the juvenile has committed a delinquent act; and (2) that the juvenile is

in need of treatment, supervision, or rehabilitation, before the juvenile court

may enter an adjudication of delinquency.”). However, this argument is

waived for myriad reasons.

First, M.C.R. did not raise this issue in the juvenile court; his post-

dispositional motion challenged only his adjudication of delinquency for

arson. See Pa.R.A.P. 302(a). Furthermore, in his appellate brief, M.C.R. did

not include the issue in his statement of the questions involved; he did not

set forth the facts relating to the burglary charge in the statement of the

case; and he did not discuss his argument relating to burglary in the

summary of the argument, in violation of our rules of appellate procedure.

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See Pa.R.A.P. 2116(a), 2117(a)(4), 2118. Accordingly, the argument is

waived.

Moreover, we note for the sake of completeness that M.C.R.’s claim is

not supported by the record, which reflects that in entering its dispositional

order for burglary, the court made an express determination that: “It is

contrary to the welfare of [M.C.R.] to remain in the home of [his mother]. . .

. [M.C.R.] is in need of treatment, supervision or rehabilitation. . . . [He]

shall be placed in a Residential Facility at George Junior Special Needs

Program which is the least restrictive type of placement that is consistent

with the protection of the public and best suited to [his] treatment,

supervision, rehabilitation and welfare[.]” (Dispositional Order at Docket No.

804-JV-2015, 12/03/15, at 1-2; see also N.T. Hearing, 12/03/15, at 2

(court adjudicating M.C.R. delinquent on charge of burglary after making

determination that he was in “need of treatment, rehabilitation, and

supervision[.]”)). The record also reflects that the court presided over

M.C.R.’s adjudicatory hearing for arson and was well aware of his

background. Accordingly, this argument is waived and would not merit

relief.

Dispositional orders affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/16/2016

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