In re Interest of J.G.

145 A.3d 1179

2016 PA Super 191

In the Interest of: J.G., A Minor, Appellant

Appeal of: J.G., A Minor

No. 1884 EDA 2015

Superior Court of Pennsylvania.

Submitted June 20, 2016

Filed August 26, 2016

Andre Martino, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, and Anthony J. Carissimi, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

J.G. (hereinafter “Juvenile”) appeals from the dispositional order entered in the Court of Common Pleas of Philadelphia County on June 2, 2015, following his delinquency adjudication for Robbery, Conspiracy, Theft by Unlawful Taking and Simple Assault.¹ Although we find Juvenile's challenges to the suppression court's denial of his motion to suppress lack merit and that his sufficiency of the evidence issue has been waived, we are constrained to remand to provide Juvenile the opportunity to file a post-dispositional motion nunc pro tunc challenging the weight of the evidence.

The juvenile court set forth the relevant procedural and factual history herein as follows:²

PROCEDURAL HISTORY

Prior to their juvenile delinquency hearing co-defendants JJ and [Juvenile] jointly filed a motion to suppress in court and out of court identification evidence alleging the process and identifications violated the co-defendants' due process rights. The motion was denied and an adjudication hearing was held wherein defendants were adjudicated delinquent of robbery as a felony of the second degree, conspiracy, theft, and simple assault. This appeal followed.

STATEMENT OF FACTS

At the suppression hearing and subsequent trial, the Commonwealth offered the testimony of the complainant and Philadelphia Police Officers Joseph Campbell, Colin Gershert [sic], and Jeffrey Thompson. The evidence established the following:

On December 10, 2014, at approximately 10:30 P.M. the complainant was walking in the area of the 6900 Block of Haines Street in Philadelphia, Pennsylvania. (N.T. 1/20/15 pgs. 62-63) As the complainant was walking, five young males approached him. Id. One of the males approached the complainant from the back, and placed his arm around the complainant's body. Id. Another male held an unknown object to the complainant's neck and said “give it up old head, give it up.” (N.T. 1/20/15 pg. 63) The other three males went through the complainant's pants pockets. Id. The complainant testified that at this moment he thought he was going to get shot for nothing. (N.T. 1/20/15 pg. 66) After approximately three minutes, there was a loud noise in the area and the males scattered. (N.T. 1/20/15 pg. 63) The complainant was able to see that all of the males were young, black, and wearing dark hooded sweatshirts. (N.T. 1/20/15 pgs. 70-71) One male in the group stood out to the complainant because he was wearing a red hooded sweatshirt. (N.T. 1/20/15 pg. 70)

The complainant then went directly to his home and contacted the police. (N.T. 1/20/15 pgs. 63, 67, 10) Police Officers arrived at the complainant's home within five minutes. (N.T. 1/20/15 pgs. 8-9) There, the complainant told the Officers about the incident and described the males. (N.T. 1/20/15 pgs. 9, 84) Based on the description the complainant provided, the Officers sent out a flash description of the five assailants. (N.T. 1/20/15 pg. 9)

Officer Goshert and his partner Officer Thompson received the flash information while at a location just two blocks from the 6900 block of Haines Street. (N.T. 1/20/15 pgs. 27) At that location, Officer Goshert observed a group of three young black males matching the flash information, including the defendant JJ, who was wearing a red hood sweatshirt, [Juvenile] who was wearing a dark hooded sweatshirt, and another young black male wearing a dark hooded sweatshirt. Id. As Officer Goshert and his partner, both in full uniform, approached the males, two fled on foot while the defendant JJ remained. (N.T. 1/20/15 pgs. 27-28) Officer Thompson pursued [Juvenile] and the other male, while Officer Goshert detained defendant JJ so that the complaining witness could be transported to the location to make an identification. (N.T. 1/20/15 pg. 30) After a brief chase, [Juvenile] was apprehended and detained by Officer Thompson so that the complaining witness could be transported to make an identification. The complainant positively identified defendant JJ as the same individual wearing the red hooded sweatshirt involved in the incident, and [Juvenile] as one of the other males wearing a dark hooded sweatshirt involved in the incident. Id. [The juveniles] were then handcuffed and placed under arrest. (N.T. 1/20/15 pgs. 33-34)

Juvenile Court Opinion, filed 11/9/15, at 1-3.

On January 20, 2015, the juvenile court heard testimony on Juvenile's and his co-defendant's joint motion to suppress identification and an adjudicatory hearing immediately followed. At the conclusion of the hearing, the juvenile court held the matter under advisement. Ultimately, the juvenile court entered an order adjudicating Juvenile delinquent of one count each of the aforementioned charges on April 29, 2015. Juvenile did not file a post-dispositional motion.

On June 26, 2016, Juvenile filed a notice of appeal. On June 30, 2015, the juvenile court ordered Juvenile to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), although Juvenile had filed what he titled “Preliminary Statement of Matters Complained of on Appeal” contemporaneously with his notice of appeal on June 26, 2015. On November 9, 2015, the juvenile court filed an opinion pursuant to Pa.R.A.P. 1925(a).

In his brief, Juvenile presents the following Statement of Questions Involved:

[1] Did the [juvenile] [c]ourt err by denying [Juvenile's] Motion to Suppress the out of court identification by the Complainant after an unlawful stop?

[2] Did the [juvenile] [c]ourt err by denying [Juvenile's] Motion to Suppress the out of court identification by the Complainant after [ ] J.G. was stopped by the police because the identification procedure was unduly suggestive?

[3] Whether the verdict was so contrary to the weight of the evidence as to shock one's sense of justice when the Commonwealth's sole eyewitness misidentified [Juvenile] in Court as a co-defendant[?]

[4] Whether the verdict was so contrary to the sufficiency of the evidence when the Complainant misidentified [Juvenile] in Court as a co-defendant.

Juvenile's Brief at 5.

This Court's standard of review of dispositional orders in juvenile proceedings is well-settled. The Juvenile Act grants broad discretion to juvenile courts in determining appropriate dispositions. In re C.A.G. , 89 A.3d 704, 709 (Pa.Super.2014). In addition, this Court will not disturb the juvenile court's disposition absent a manifest abuse of discretion. In the Interest of J.D. , 798 A.2d 210, 213 (Pa.Super.2002).

Juvenile's first two issues challenge the juvenile court's denial of his motion to suppress the complainant's out of court identification of Juvenile. When reviewing a suppression order:

an appellate court is required to determine whether the record supports the suppression court's factual findings and whether the inferences and legal conclusions drawn by the suppression court from those findings are appropriate. Where the record supports the factual findings of the suppression court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error. However, where the appeal of the determination of the suppression court turns on allegations of legal error, the suppression court's conclusions of law are not binding on an appellate court, whose duty it is to determine if the suppression court properly applied the law to the facts.

Whether an out of court identification is to be suppressed as unreliable, and therefore violative of due process, is determined from the totality of the circumstances. Suggestiveness in the identification process is a factor to be considered in determining the admissibility of such evidence, but suggestiveness alone does not warrant exclusion. Identification evidence will not be suppressed unless the facts demonstrate that the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Photographs used in line-ups are not unduly suggestive if the suspect's picture does not stand out more than the others, and the people depicted all exhibit similar facial characteristics.

Commonwealth v. Fulmore , 25 A.3d 340, 346 (Pa.Super.2011) (internal citations and quotation marks omitted). Moreover, our scope of review from a suppression ruling is limited to the evidentiary record that was created at the suppression hearing. In re L.J. , 622 Pa. 126, 148, 79 A.3d 1073, 1086 (2013).

There are three types of encounters between law enforcement officials and private citizens. A “mere encounter” need not be supported by any level of suspicion but carries no official compulsion to stop or respond. Commonwealth v. Clinton , 905 A.2d 1026, 1030 (Pa.Super.2006), appeal denied, 594 Pa. 685, 934 A.2d 71 (2007). An “investigative detention” must be supported by reasonable suspicion and subjects the suspect to a stop and a period of detention, but it does not have the coercive conditions that would constitute an arrest. Id . The courts determine whether reasonable suspicion exists by examining the totality of the circumstances. In the interest of D. M. , 556 Pa. 160, 167, 727 A.2d 556, 559 (1999). An arrest, or “custodial detention,” must be supported by probable cause. Clinton , 905 A.2d at 1030.

Juvenile first claims the victim's identification of him should have been suppressed as the “fruit of an unlawful seizure.” Juvenile's Brief at 10. Juvenile avers police had neither reasonable suspicion to stop nor probable cause to arrest him as he ran from them because the information that Officer Campbell...