In re M.,

IN THE INTEREST OF: C.M., JR., A MINOR

APPEAL OF: C.M., JR.

J-S35023-14

No. 1917 MDA 2013

SUPERIOR COURT OF PENNSYLVANIA

AUGUST 19, 2014

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Dispositional Order of July 25, 2013

In the Court of Common Pleas of Lancaster County

Criminal Division at No.: CP-36-JV-0000107-2013

BEFORE: DONOHUE, J., WECHT, J., and STRASSBURGER, J.^*

MEMORANDUM BY WECHT, J.:

C.M. appeals the July 25, 2013 dispositional order of the Court of Common Pleas of Lancaster County following his delinquency adjudication. The juvenile court found C.M. delinquent of aggravated assault,¹ resisting arrest,² and disorderly conduct.³ We affirm.

The juvenile court aptly set forth the factual and procedural history of this case as follows:

At the time of the adjudicatory hearing, [C.M.] was 15 years old. On or about January 23, [2]013, [o]fficers from the Lancaster City Bureau of Police were executing a search warrant at 526Pershing Avenue in Lancaster, Pennsylvania. At approximately 10:00 a.m., [C.M.] approached the residence. Officer Eluid Tirado was standing on the porch providing premise security. Officer Tirado informed [C.M.] that he could not come up on the porch or [go] into the house. [C.M.] ignored the command and attempted to go onto the porch. Officer Tirado then pushed [C.M.] back down the steps in an attempt to keep him from entering the porch. [C.M.] then said "Nah fuck this" and charged Officer Tirado. A struggle ensued[,] which caused officers that were inside the residence to exit and help Officer Tirado subdue [C.M.] A crowd of [fifteen to twenty] people, already present to witness the search warrant activity, grew to [twenty to thirty] people. At some point during the scuffle, [C.M.] swung at Officer Tirado, connecting at least one time, causing a red mark on the left side of his face. Although Officer Tirado did not recall [C.M.] striking him, because[,] according to his testimony[,] he was focused on "trying to maintain control of him", several other officers testified to witnessing Officer Tirado being struck in addition to the Commonwealth's offering of a video taken from a street-level surveillance camera that had direct view of 526 Pershing Avenue. Officers testified that after they [exited] the residence to assist Officer Tirado, [C.M.] would not comply when instructed, repeatedly, to put his hands behind his back and to stop resisting[.] It was only after receiving 2 strikes to his right leg that [C.M.] finally relented and was able to be subdued and handcuffed by the officers. Thereafter, [C.M.] resisted the officer[s'] attempts to place him into the police cruiser in order to be transported, and he had to be forced into the car by the officers. For these offenses, [C.M.] was charged with one count each of [a]ggravated [a]ssault (F1), [r]esisting [a]rrest or other [l]awful enforcement (MS)[,] and [d]isorderly [c]onduct (M3).

Juvenile Court Opinion, 12/9/2013 ("J.C.O."), at 3-4 (citations to notes of testimony omitted).

On February 20, 2013, C.M. was charged by juvenile petition with the above-referenced offenses. On June 5, 2013, the juvenile court held an adjudication hearing and found C.M. delinquent on all counts. Notes of Testimony ("N.T."), 6/5/2013, at 78-80. In an order dated July 25, 2013,the juvenile court ordered that C.M. complete the CHOICES program, complete thirty hours of community service, submit a buccal sample for DNA testing (and pay the associated cost of $250.00), submit to fingerprinting, and pay the mandatory juvenile processing fee of $100.00. Order, 8/5/2013, at 1.

On August 5, 2013, C.M. filed a post-dispositional motion, in which he requested a judgment of acquittal. In this motion, C.M. argued that the Commonwealth failed to establish that C.M. assaulted a police officer, because there was no credible evidence that C.M. punched any officer. Post-dispositional motion, 8/5/2013, at 2-3. C.M. also argued that he did not resist arrest, because he was detained as soon as he stepped onto the porch, and that he did not possess the requisite intent to create a public inconvenience for his disorderly conduct charge. Id. Finally, C.M. alleged that his trial counsel was ineffective for failure to call C.M. and several other witnesses at trial to corroborate his story. Id.

On September 10, 2013, the juvenile court held a post-dispositional hearing on C.M.'s ineffective counsel claim only. After hearing testimony from several witnesses uncalled at the adjudication hearing, and from C.M.'s trial counsel, the court ultimately denied C.M.'s post-dispositional motion. N.T., 9/10/2013, at 119-21. The juvenile court noted that C.M. may not have received a perfect defense, but that he received an adequate one that was based upon a cogent trial strategy. Id. The juvenile court also stated that it believed trial counsel when she testified that she had conversationswith C.M. and his parents about the decision to testify. Finally, the juvenile court explained that it found no evidence that would have changed the court's opinion on whether C.M. had committed the offenses. Id.

On October 11, 2013, C.M. filed a notice of appeal and a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On December 9, 2013, the juvenile court issued its opinion pursuant to Pa.R.A.P. 1925(a).

C.M. raises the following issues for our review:

I. Whether the lower court committed a reversible abuse of discretion in denying C.M.'s motion for a new trial as the adjudication of C.M. for the charges of aggravated assault, resisting arrest, and disorderly conduct were against the weight of the evidence when the court admitted a stipulation that the video was an accurate depiction of events occurring on 1/25/13 and police provided inconsistent testimony to what was shown by the video but the court found in favor of the police?

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II. Whether the evidence was so weak and inconclusive to be insufficient to sustain the adjudication that was based on conjecture and speculation for the charges of aggravated assault, resisting arrest, and disorderly conduct.

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III. Whether the lower court committed a reversible abuse of discretion in failing to find that C.M.'s adjudication counsel rendered ineffective assistance of counsel?

Brief for C.M. at 4.

For ease of disposition, we will first address C.M.'s challenge to the sufficiency of the evidence offered to support his convictions. Our standard of review is well-settled:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the 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. Palo, 24 A.3d 1050, 1054-55 (Pa. Super. 2011) (citation omitted).

C.M. first attacks the sufficiency of the evidence with regards to his aggravated assault adjudication, asserting that the video does not show C.M. throwing any punches at Officer Tirado, and that Officer Tirado probably sustained his injury when C.M. fell through the glass door. The aggravated assault statute states, in relevant part, as follows:

(a) Offense defined.--A person is guilty of aggravated assault if he:

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(3) attempts to cause or intentionally or knowingly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty;

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(c) Officers, employees, etc., enumerated.--The officers, agents, employees and other persons referred to in subsection (a) shall be as follows:

(1) Police officer . . . .

18 Pa.C.S. §§ 2702(a)(3),(c). Viewing the facts in the light most favorable to the Commonwealth, Officers Jonathan Caple and Juanita Martinez-Bender testified that they saw C.M. hit Officer Tirado with a closed fist N.T., 6/5/2013, at 6, 22, and Officer Caple testified that the video shows C.M. throw at least one punch. Id. at 15-16. Sections (a)(3) and (c) of the statute clearly state that the attempt to cause any bodily injury to a police officer constitutes aggravated assault. Therefore, sufficient evidence supported C.M.'s adjudication of aggravated assault.

C.M. next argues that there was insufficient evidence to support his delinquency adjudication for resisting arrest. 18 Pa.C.S. § 5104 states, in relevant part, as follows:

A person commits a misdemeanor of the second degree if, with the intent of preventing a public servant from effecting a lawful arrest or discharging any other duty, the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance.

Id. For the evidence to be sufficient to sustain a resisting arrest adjudication, the Commonwealth must have demonstrated: (1) that C.M. intended to prevent the police from discharging a duty; and (2) that he created a substantial risk of bodily injury to the police officer. Given the testimony of the police officers, these two elements were established...