*1 124 EAKIN, concurring.
Justice analysis concerning majority’s in full with the I agree of the action” “gist agree merit. I also certifícate of statements action because present not bar the doctrine does of the insurance scope outside the toxicity are concerning I what deem to caution separately but I write policy, is majority per the extent To language. troublesome brush,” any negli suggesting a broad ceived to “paint perform manner of contracting party’s on a gence claim based see contract, Majority underlying ance does not arise from 69-70, In some 114, disagree. I must 106 A.3d Op., However, here, cases, synthe be the case. may such as does pronouncement for such a broad case law to stand sizing inher the action” doctrine —an “gist with the comport not eToll, Inc. v. See analysis. circumstantial Elias/Savion ently (“[Wjhether Inc., 10, 17 (Pa.Super.2002) Advertising, 811 A.2d appears vary the doctrine actually claim barred [is] [a] allegations^]”). on the individual circumstances based joins concurring opinion. CASTILLE Chief Justice A.3d 76 In the Interest of J.B. Pennsylvania. Appeal of Commonwealth Pennsylvania. Supreme Court of Argued 2014. March Dec. Decided *2 Barker, Esq., Patrick for Common- Harrisburg, James Pennsylvania. wealth of Valsamidis, Colafella, Colafella & Esq., Domenic
Stephen Elisco, Castle, New Lauren Andrea Anthony Esq., Dennis Rosado, Center, Fine, Law Esq., Lourdes M. Esq., Juvenile for J.A.B. EAKIN, TODD,
CASTILLE, C.J., SAYLOR, BAER, McCAFFERY, STEVENS, JJ.
OPINION TODD.* Justice Superior from order of the appeals *3 Commonwealth the order of Court of vacating dispositional the Juvenile
Court County remanding this matter to that tribunal Lawrence proceedings. hereby for further We vacate the order Court, remand this matter to the court Superior may be to file a motion given opportunity so that J.B. tunc, nunc adjudication hearing, pro challenging new of the evidence his conviction for one count supporting one count of of an unborn first-degree murder and homicide child. Background
I. Factual adjudication hearing The evidence of adduced at the record facts, in this matter which are following held established to the court’s at issue this relevant (an male), along During February C.B. adult appeal: victim”) (“the daughters, his fiancée—K.M.H. two —her 7) 4), son Il-year-old and A.H. and C.B.’s J.B. (age (age J.H. The house living together two-story in a rented house. were in a farmland and by was located rural area surrounded woods, Pennsylvania. the town of Wampum, and situated near reassigned to this author.
*Thiscase hours on the Febru- During predawn morning Friday, 20, 2009, go According C.B. left the house to to work. ary C.B., overnight, it had snowed and at the time he was leav- Adjudi- snow on the N.T. ing ground. a.m.—there was —6:45 4/11/12, departed cation at 147. recalled that he Hearing, C.B. in his usual fashion his vehicle out of a backing parking adjoining long area the rear of house and onto driveway storage which led from a combination barn and located behind the house to the garage complex (“garage”) (“road”).1 Road nearby thoroughfare Wampum-New Galilee He arrived at work fifteen minutes later at approximately around 7:00 a.m. Id.
Later that came downstairs from his morning, upstairs bedroom in the at get house dressed for school. 68. time, then During period C.B. and victim —who was pregnant over 8 months’ been of relocat- process —had the contents of their shared bedroom on the first floor of ing bedroom, their home to attached to which was upstairs J.B.’s another smaller into previously bedroom had converted Adjudication for use once their was born. N.T. nursery baby 4/10/12, 108; 4/11/12, Hearing, at 68-69. This shared directly bedroom was located front of house 4/10/12, right Adjudication Hearing, of the front door. N.T. move, In preparation for the final which was to take place weekend, belong- some of J.B.’s upcoming personal clothes, including already had been downstairs ings, placed Adjudication N.T. inside shared first floor bedroom. 4/11/12, Hearing, awakening, 68-69. After J.B. went down- *4 stairs, bedroom, entered that the was at sleeping where victim time, clothes, the retrieved his and dressed in a got nearby Id. at 69. After bathroom. sat on the couch dressing, J.B. Id. A.H. was still asleep. J.H. and watched television. road, and, 1. The front of the house faced the as viewed from that perspective, parking immediately the area was located behind the house side, on the left hand with the bam some distance further back situated descriptions the All hereinafter to left and rear of the house. locational provided opinion proceed vantage point a a viewer from facing the house from the road. watching were he and J.H. recalled that while Id. at 66. J.B. phone click her cell television, the victim he heard —either time. checking her the presumed or shut—which open thereafter, to them that victim called out the Immediately late for the bus.” Id. they or would be “they needed to leave later, the one or two minutes and left house at 70. J.B. J.H. a.m., since both 8:13-8:14 estimated was around which J.B. them transported bus that the school normally caught children a.m. morn- every around 8:12 Elementary School to Mohawk house, large he noticed a exited the Id. at 89. As J.B. ing. Hear- Adjudication N.T. the parked by garage.2 black truck 4/11/12, at 65-66. ing, pick up bus which arrived
The driver of the school J.H., that, they had he first saw J.B. and children noted when driveway, and were way down the made it a third of road, a little bit ahead J.H. toward the with J.B. walking 4/10/12, children at 152. Once the Adjudication Hearing, N.T. however, both bus, they the driver recalled the school saw toward the bus with J.B. driveway run down the began to during ten the run. Id. yards about outpacing J.H. bus, did not notice the driver they As ran towards and, were way acting, the children anything unusual them, he observe them did watching no time while he was 154, Id. at 156. Once anything. or throw driveway, leave bus, respective each took their they the children got 153-54. seats, normal routine. Id. at as their assigned per ordinary observing nothing out of The bus driver recalled had on the bus they gotten the children’s behavior after about to school. being transported the time were entrances, J.B., noted, had four In re Superior Court the house 2. As the 3, 4, 8, (Pa.Super.2013); Exhibits and 29 Trial 69 A.3d 280 n. that, house). practice, their usual (photos testified as was C.B. through laundry likely the house would have exited J.H. opposite right the house hand side of room door located on exit, person driveway driveway. get to the from In order to and, thus, facing garage immediately turn be have to would left — stairs, again, flight proceed turn left the house—then down behind garage. the house and through parking area between and walk C.B., 4/11/12, According Hearing, Adjudication at 156-57. N.T. 157-58. of the house. family never used the front door *5 45 minutes after the children the Approximately got on school after shortly six-person 9:00 a.m.—a work crew bus— company from a tree service arrived at the to finish premises firewood had cut and the collecting they previous day collected 13, from the wooded area located in front of the house. Id. at trucks, 29. The crew came in three the lead truck driven by owner of the Gary entering business— Cable— driveway first. and his parked Cable workers their trucks between the front of the house and the woods line which was house, also in front of the but to closer the road. Cable and his crew day. remained that area all Id. at 18. Cable remembered that there was “light” coating of snow at the time on the ground, which he estimated was approximately of an inch in at 20. depth. Id. Cable did not recall 1/8—1/4 arrival, tire seeing any driveway tracks on his although he did note that the center of driveway up” was “humped when he in. pulled Id. at 31.3 crew began working, Cable his after which one of his workers him came to the screen reported seeing door one of the entrances to the standing open. house Id. at 23. told the Cable worker that he would an on it. keep eye later, Approximately ten minutes noticed the open Cable door again and observed a little girl A.H.—crying; whereupon, — Cable went up porch to see what was the matter.4 A.H. told that “her mother Cable was dead.” Id. at 25. Cable called 911 and sent one of Gary his Suhanec—to the workers — end of the driveway flag police down the state officers who Cable, house, dispatched. had been without entering attempted to console A.H. to her speaking through that, testimony adjudication hearing, In 3. his at the Cable conceded observed, based on amount of snow he had a vehicle been driven on driveway "definitely” at 6:45 a.m. it would have left tire tracks. adjudication hearing 32. C.B. also testified that Cable in- him, 20, 2009, February evening formed when conversed on the employees one had seen tire tracks and that C.B. had requested investigating tell the Cable officers about this. N.T. 4/11/12, Adjudication Hearing, any at 153. Cable did not recall of his employees commenting presence Adjudica- on the of tire tracks. N.T. 4/10/12, Hearing, tion It was not clear from the record which entrance the worker and referring Cable were to. blanket from get her to her door, instructed and Cable to her and he could talk to the door so and come over couch at 26-27. calm. Id. keep her *6 arrive, called Cable to Suhanec police for the waiting
While on footprints him there were informed and cellphone on that Cable point It was at that Id. at 37. driveway. center of footprints sets of small two observed either side tracks run on the tire between driveway “[w]here this was 38, 40. estimated Id. at Cable driveway.” 9:45 a.m. after he arrived —around 45 minutes approximately Id. at 36. Harry Troopers Gustafson police state
The first officers— at 10:13 on the scene Jeremy Bowser—arrived Corporal and A.H., who encountered Trooper 43-46. Gustafson a.m. Id. at then took up her and picked front door. He crying, was at the couch to watch sat her on the the residence and her into the front through the residence entering Upon television. her victim body lying door, immediately he saw “very pool large” in the bedroom with on the bed left side the sheet soaking and her head and shoulders upper blood Bowser Troopers Id. at Gustafson beneath. paramedics measures until ventilation engaged emergency arrived. efforts, the of these resuscitative
During performance speak to requesting cell phone nurse called the victim’s school identified phone, answered Trooper to her. Gustafson was nurse, that J.B. himself, who indicated and talked and that feeling he was not well in her office because Trooper Id. at 59-60. day. come home for the to requesting until could J.B. “baby-sit” asked the nurse Gustafson Id. at 60. up. him pick to have someone arrangements make began 10:40 a.m. and arrived at around The paramedics examination, one During Id. at 85. examine the victim. of her to the back wound gunshot noted paramedics life any could not detect The paramedics head. Id. at 81-82. at 81. At victim, heartbeat. any nor fetal from the signs Pennsylva- from the investigators crime scene other point, Office County nia Police and the Lawrence Coroner’s State scene, the victim and her unborn were sent to the after which dead. In a short of time pronounced period fetus were thereafter, confirmed that C.B. was police investigators state claimed, and, after morning gunshot at work that as he he was elimi- negative, quickly residue test of his hands was 4/11/12, Adjudication Hearing, nated as a N.T. suspect. 82,138,147. of the state officers who arrived at the home was police
One Wilson, who, arrival, briefly with Trooper upon spoke Janice shock, not A.H. Because A.H. was in a state of she could Trooper questions. coherent answers to Wilson’s provide Elementary next went to Mohawk Trooper 60-61. Wilson school to interview J.H. Trooper arrival at the after
Upon shortly noon — school— *7 J.B., asked to but was informed he was speak Wilson he a stomach ache. sleeping the nurse’s office because had Id. J.H., then who Trooper spoke 70. Wilson with initially was because she she was in trou- distraught thought ble; however, guidance she calmed down after the school Id. Trooper counselor informed her she was not. minutes, for about ten but recalled Wilson interviewed J.H. have much to offer about what had really that didn’t “[s]he Id.5 testify that did not happened morning.” J.H. adjudication hearing. by was then awakened in the nurse’s office and brought
J.B. his counselor to be interviewed guidance by Trooper Wilson conference room. did not inform nearby Trooper Wilson victim, but, instead, asked him who J.B. death house, had been that and he present morning replied mom, victim], that “it was his and his two referring [the sisters and himself.” Id. at 65-66. He noted that his dad had work, already left for and A.H. was and did not wake asleep before he and J.H. left for school. Id. next up Trooper Wilson recorded, testimony trooper’s 5. None of the interviews were and her regarding reports the interviews she conducted was based on two interviews, days days respectively. prepared and 13 after the N.T. 4/11/12, Hearing, Adjudication at 106-07. any around or vehicles anyone else “if he had seen asked J.B. van green his mom’s day?” replied there that Id. J.B. school, and, also, A.H. to used to drive was there which she back parked truck large pickup “that he saw a black for details about J.B. Trooper pressed Wilson garage.” to the truck, belonged that it possibly since she believed Trooper victim. Wilson had killed the individual who that “he ... and he stated running, if the truck was asked J.B. any- if “saw J.B. Trooper inquired know.” Id. Wilson didn’t around,” no. Id. J.B. replied and she recalled that one kind that he would the truck was of the same remarked another man of the farm and usually see when the owner cows. Id. at 66-67. came to feed the would be in when about what he had done queried further Trooper Wilson above, recounted, as his actions and he detailed morning, clothes, going dressed and J.H. retrieving getting to hurry up, to them after the victim’s admonition bus truck upon exiting of the black and then his first observation at that point. the home. The interview concluded afternoon Meanwhile, morning early the late hours, Harvey for Adam searching state police began —the history he had a of mak- of the victim—because ex-boyfriend her. Id. at 125-26. At this against threats of violence ing sister, victim, and brother-in- time, as her parents, as well (“PFA”) From Abuse order law had a Protection permanent from an incident which occurred Harvey, stemming incident, living in Harvey February During —then and “threat- called the victim’s mother North Carolina—had *8 B, Exhibit family whole out.” Juvenile’s ened to take [her] the owner of a black Harvey was also PFA Order 2/4/2008. re- Harvey at 222-26. had F-150 truck. Id. pickup Ford had, 2008, in late and from North October turned Carolina weeks, results received test paternity within the two previous 151, Id. at biological daughter. not his that A.H. was showing Also, evening point during preceding 207. at some in 19, 2009, parents confronted the victim’s February Harvey in resulting pick up he had nightclub gone where food— 126,150. Id. at ejection his from the club.
Trooper dispatched by supervi- Dominick Caimona was his sor to find who was with a that Harvey, staying family Caimona knew—the Trooper Klingensmiths, City at Trooper New Castle. 220-23. When Caimona arrived residence, at the he was informed Thomas Klingensmith Klingensmith Harvey at an address in residing Union Lawrence Township, County, Klingensmith and that would show him the address. into Klingensmith got Trooper Caimo- na’s car which main proceeded along State Street —the thor- oughfare Union As the state cruiser Township. police Avenue, approached intersection of State Street and Miller afternoon, at around p.m. Klingensmith 1:20 saw Har- vey’s black truck at the intersection it pointed and out to 221, 223, Trooper Caimona. at 226. Caimona Trooper truck; parked police car and walked over to the he asked Harvey accompany him to the state barracks to talk police him, Harvey agreed. Id. at 221.
Trooper Caimona noted that the intersection was located approximately city blocks from the home of Harvey’s par- ents where Harvey was Id. at 222. staying. Trooper Caimo- na Harvey’s observed that truck had a of snow light coating dirty, hood and roof and that it was as if it had been driven. Id. at 225. was taken to the Harvey police state barracks and 2:23 p.m. interviewed around Id. at 139. alibi, an Harvey provided stating that he had been home in the basement of parents’ p.m. house since 10:00 the previous and that the evening, only way out of the house was through the upstairs floor where his dad was. Id. at 133. Harvey’s hands were by investigators tested time for the residue, presence of but was detected. gunshot none Id. at alibi, 137. Based on his proffered presence snow truck, which, on the investigators’ opinion, suggested that it Wampum could not have been driven to distance —a estimated to be 8-10 then Trooper Caimona miles—and back off, to his home without coming Harvey was excluded as 132-33, Id. at suspect. February
Also the afternoon of Andrew Corporal Pennsylvania Pannelle of the State Police conducted a visual *9 that all of He observed inside of the house. inspection unlocked, and, also, that the front were to the house the doors Hearing, Adjudication N.T. on its frame. had blood door Pannelle, walking through while 124,134.6 4/10/12, Corporal on the floor house, a blue blanket noticed first floor of the it, a hole in door, it because it had and he seized the front near shotgun of a have been indicative could which he believed subjected subsequently was at 127. The blanket blast. gunshot and no testing and chemical examination microscopic Hearing, blood, Adjudication N.T. residue, found on it. or was 4/11/12,at 12-123. the victim’s where the first floor bedroom entering
Upon television, found, noted that the Pannelle Corporal was body hand side right in the an armoire located top sat on which Adjudication Hearing, room, on. N.T. was turned were to the armoire 4/10/12, doors Observing at 102. armoire, he Inside the closed, them. Id. at 103. opened shelf, later which was safe on the bottom gun saw a locked theOn and ammunition. handguns to contain two determined two boxes helmet and shelf, Pannelle saw a work Corporal top at 104. one closed. and opened shells—one shotgun Premium” brand 16 unfired “Federal box contained open shells. Id. gauge shotgun .20 Markilinski, Pannelle, by Sergeant accompanied Corporal Police, proceeded then Pennsylvania State also of entering the Upon the house. the second floor of examine bedroom— the stairwell —J.B.’s right front bedroom guns” partially “long of six presence noted troopers both which, blanket, as observed from orange an covered hand side bedroom, in the left standing were entrance to door, between a dresser nearest the corner of the room .30-30 gun The butt of one Id. at 108-09. the wall. —a it leaned into the room as the furthest protruding rifle—was muzzleloader, right immediate wall. To its the right-hand weapon, leaning directly against and Richardson “Harrington side, shotgun gauge was a .20 —a testing, informa- no further Although was sent for forensic the blood origin. hearing regarding its provided at the tion was 110-11,121. like guns, Both of these youth ... model.” Id. standing upright were found group, the other four *10 at 139. Corporal the back of the bedroom wall. Id. from the one guns group, to remove individual began Pannelle time, for him to Sergeant at a and hand them to Markilinski if were loaded. Id. at 141. they examine and determine the flint- by The first removed Pannelle was gun Corporal rifle, Markilinski examined and noted Sergeant lock which at 141. The second nothing weapon unusual about it. was the .20 Sergeant Pannelle handed to Markilinski Corporal Markilinski the breech of gauge shotgun. Sergeant opened breech, in and smelled burnt shotgun gunpowder Pannelle, he out to who also smelled pointed Corporal which Markilinski observed Sergeant the odor. Id. at 113. also and in the barrel. Id. at residue the breech gunpowder Pannelle and Markilinski Corporal Sergeant 141-42. Both that, fire- personal experience testified based on their with arms, had been or “recent- they shotgun “freshly” believed the 130-31, However, acknowledged 142. both ly” fired. Id. at they offering expert opinions regard, that were not and certain- any degree could not with of scientific opine 132-33, been fired. Id. at ty exactly shotgun when the had gauge shotgun by troopers 143. The .20 was seized for examination. Id. at 147. sent forensic on the discovery shotgun, p.m. Because of the at 10:00 re-interviewed J.B. at evening February Trooper Wilson Adjudi- staying. his home where he was N.T. grandmother’s 4/11/12, at 71-72. had not been informed Hearing, cation J.B. so, by anyone prior Trooper of the victim’s death to previously father, J.B., C.B., took J.B. aside and speaking Wilson him isn’t “something happened” “[the victim] told bad had anymore, Upon hearing with us she’s heaven.” Id. this, he crying. became emotional and started Id. Once down, Wilson, with another Trooper along trooper, had calmed J.B., Trooper with his father began question observing. “low-key” described his demeanor as and that he was Wilson nervous, excited, Id. at fidgety. not or 87. the black details about asked J.B. for more Wilson
Trooper recalled it. Id. at 73. J.B. he had first seen truck and when house, when he as he exited the he saw the truck first money cream if he had ice in his to see pocket reached and, a mass of fuzz from his school, dislodged process, N.T. Id. at When ground. fell to the pocket which parked noticed the truck it it was then he pick up, over to bent if had seen Wilson asked J.B. J.H. Trooper by garage. it to her but she truck, that he mentioned replied and he was, too far point, she at that as he believed respond, didn’t also mentioned him to hear him. Id. at 74. J.B. ahead of in a that, out that afternoon while he was Trooper Wilson relatives, a white of his he observed S- driven one vehicle the truck that his relative resembled truck which he said to farm farm, the truck at the he stated that except was at the *11 at 94-95. than the S-10. Id. larger was black and that he had seen a Wilson Trooper also informed J.B. the truck he hat over inside ducking in a white person why of J.B. he Trooper inquired at the farm. Wilson observed him that morn- that when she talked with had not mentioned he first at the truck glanced and he that when ing, explained recounted his Id. at 75. J.B. also anybody. he didn’t see truck, inside of the and that the were on lights observation not tell her that stated that he did Trooper when Wilson interview, J.B., then de- hesitating, first after during the Id. at 75. as “sort of half on.” lights being scribed the and he any guns, next asked J.B. if he had Trooper Wilson Trooper rifle. Id. at 76. her he had a .30-30 informed he a and he shotgun, as to whether had questioned Wilson J.B. it gauge he knew what inquired whether replied yes. She further was, “it a and 20-gauge,” and he stated that was and, also, that he had outside only gun that he shot the related 77, 101. Trooper month. Id. at shot it with his dad last and he morning, if fired the gun asked J.B. he had Wilson point. interview ended at that “no.” Id. at 101. The answered at 78. 21, 2009, state February morning At 3:30 a.m. on the residence grandmother’s arrested at his J.B. police 137 him charged with the murder of the victim and her unborn 4/10/12, Adjudication fetus. N.T. at 217.7 No Hearing, gun- shot residue testing performed. J.B.’s hands was ever arrested, shirt, When he was wearing polo blue Id. These were the jeans, jacket, a brown and tennis shoes. same clothes J.B. had on when interviewed Trooper Wilson at his February Adjudication school at noon on 20. N.T. 4/11/12, Hearing, 21, sunrise,
Later morning February after team of police state officers searched the exterior grounds residence, vicinity immediate and along J.B.’s its drive- way. Adjudication N.T. 211. Hearing, Ser- 4/1Ó/12 Brooks, Daniel geant of several company other state officers, police began from walking porch outward down driveway toward the road. Just outside of the residence, area, adjacent porch “very found rusty” spent shell. shotgun 202. As the officers road, walked further driveway down the direction of the they discovered a second shell. This spent shell —a “Federal Number 6” .20 gauge brand found approximately —was away feet from the left house on the hand side of the driveway old, adult, Although only years charged J.B. was as an and he subsequently petition filed a decertification to transfer case to the County. Juvenile Division of the Court of Common Pleas of Lawrence Judge The trial petition Dominick Motto—denied the on the court— that, grounds consistently having since J.B. denied committed the charged during psychologi- crimes which he was interviews with had, view, experts, responsibility cal in the court's not taken for his *12 actions; therefore, culpability, based on these denials of the trial court "prospects likely reasoned that J.B.’s of rehabilitation ... [were] to be Brown, (Pa.Su- unsuccessful.” Commonwealth v. 490 A.3d per.2011). granted permission interlocutory appeal J.B. was for an of order, Judge Superior Superior and Motto's the Court vacated it. The requiring accept responsibility Court held that J.B. to the conduct alleged he was to have committed order to obtain decertification require effectively guilt particular would him to admit his of the and, thus, charged, right against offenses violated his Fifth Amendment compulsory Consequently, id. self-incrimination. See the court re- which, hearing, manded for a new decertification after the recusal of Motto, Judge Judge Hodge was held before John of the Court of County. Judge Hodge granted Common Pleas of Lawrence the decerti- petition presided adjudication dispositional fication and over the and hearings held thereafter. of length line that ran the entire beginning the of a fence at Id. at 195-96, 198, 210. driveway. left side of the the fence, of a few was near the base the wire shell located spent under- driveway, lying the middle of the and it was feet from and ice and snow. by leaves which were frozen covered neath Id. at 210. When asked adjudication the at the by prosecutor sliding of to describe the condition the shell—on hearing8 being ranging spectrum from other “pristine scale the characterized rusted and broken Brooks up” Sergeant — the that it was prosecutor as and he pristine, agreed shell Id. at 201-02. weathered. not road, near the and embedded along driveway Further the itself, found a the officers driveway searching the dirt of house, which, shell like the shell found near spent third crushed into the “very rusty,” physically was and it was also Id. at 204. Brooks’ Sergeant In driveway. surface view, time.” rusty had been there “for some quite both shells However, there opined Brooks also Sergeant how the three way exactly long any no to estimate was Id. at 209. These three spent had been outside. lying shells search of troopers’ shells were ones found only and, original after in their property, being photographed Id. at 205, 207. they were collected as evidence. positions, hearing, presented At Commonwealth testimony of Dr. forensic pathologist James Smith —a —as Dr. noted gunshot to the nature the victim’s wound.9 Smith single gunshot that he determined that the victim sustained a neck, which, to the back of the presence wound of her because wound, around the shotgun pellets opined and Adjudication by Hearing, inflicted N.T. shotgun. 4/10/12 as being shape 161. Dr. Smith described wound Id. i.e., large “tangential,” “a oval or slanted. ellipse” Due to trajectory proceeding 160-61. wound — recognized by District Because of a conflict of interest the current 8. County Attorney of Office of Lawrence Lamancusa —the —Joshua currently Pennsylvania Attorney prosecution over the General took appeal. represents the Commonwealth in this expert testify his behalf. No forensic was called J.B.’s counsel *13 to the front and body from the back of victim’s “slightly” believed it had been inflicted as upward Smith —Dr. Id. at 161, 179. on her left side on the bed. lying victim was from the blast gas shotgun Dr. further noted that hot Smith and muscle of the victim’s through entered the wound the skin caused the skin to out and near the bulge rupture neck and Id. at 168. This phenomenon, of known as point entry. “blowback,” formed a “tract” or laceration the skin. To Smith, the nature indicated that the type damage Dr. shotgun mostly from the blast was contained within the gas Id. at 168-69. entry dissipate. wound and did not have time to factor, This with the in the wound coupled presence powder point and “soot” around the surface of the skin near the at skin, him pellets which the entered the caused to conclude that to, close or even shotgun “very, very maybe touching, the back of the neck” when it was fired. Id. at 183-85. distance, he could not he estimated Although give precise the shot was fired from a distance of closer than two inches neck, gun from the victim’s and the barrel of the was in “close Id. contact” with her skin at the time. that,
Dr. pellets Smith found as the entered the soft tissues neck, a small of the portion pellets discharged piece (rear) bone from the of the victim’s skull near occipital region base, cavity. its and then entered the interior of her cranial estimation, at In pellets damage 161-62. these caused to the centers of the victim’s brain which controlled her functions, autonomic nervous the death of thereby causing and, both the victim because of the cessation of the victim’s her unborn fetus. Id. circulation, 160-61, 165; blood 173-78. noted, however, Dr. that the vast majority pellets Smith had observed “rebounded back downward” and traveled entered, back in the direction from which had resulting Id. them in the back of the neck. becoming lodged victim’s of whether which Regarding question blowback entry occurred near the wound could have caused blood or along other tissue material to travel backwards the track of pellets shotgun, and enter the barrel of the Dr. Smith common whenever that, is more blowback opined generally, *14 the skin beneath penetrates wound gunshot hot from a gas Dr. Id. at 190-91. yield. which does not and encounters bone the victim’s entered that the shot which acknowledged Smith Id. at 191. Dr. Smith of her skull. the bones impacted wound therefore, could was, impact that this possible it agreed back have been propelled and blood to have caused tissue the and into the barrel by channel created shot through the however, of the at the time angle gun he believed gun; blowback, and, minimized the amount of was made the wound as much thus, not to find expect that one would opined was inflicted if the wound present tissue as would be blood or a 90 skin, i.e., barrel held at gun into the straight 170-72,186-92. thereto. Id. degree angle on behalf of adjudication hearing at the testifying Also firearm examin- certified toolmark and was a Commonwealth Po- Pennsylvania State Burlingame Paul Trooper er— shotgun .20 gauge examined the Trooper Burlingame lice. firing shotgun, After test from residence. seized J.B.’s test, and he determined drop” it to a “shock subjecting and Adjudication N.T. malfunctioning. was not weapon that the that he related Trooper Burlingame at 40. Hearing, 4/11/12 wadding pellets pieces the 27 and compared shotgun also victim with from one of body pellets from the recovered shells shotgun No. 6 brand gauge .20 Federal unspent Trooper victim’s bedroom.10 found in the armoire of the from wadding discharged Burlingame pellets noted recovered from J.B.’s gauge bore like the .20 shotguns, smooth bedroom, which would make have marks on them any do not individual examina- conducting an generally them usable therefore, could Burlingame, 47.11 Trooper tion. normally plastic or Shotgun wadding of either 10. shell is constructed material, Trooper Burlingame explained that there are nor- fiber shotgun every "an mally wadding which is found in shell: two areas in powder and a over-powder post-type which in the shell wad” covers Hearing, Adjudication N.T. "cup wad” which holds the shot itself. 4/11/12, at 45. Burlingame process of individual examination Trooper described the examine, side, by microscope side an article using comparison as not perform pellets an individual examination of the recovered from the victim pellets and the the unfired .20 shells gauge note, taken from the armoire. did though, He that the recovered from the victim shotgun pellets were “consistent” size, material,12 shape, and construction with the weight, pel- shells, and, also, lets in the unfired that the pieces wadding taken body from the of the victim were “consistent” with the type of in the unfired .20 shells. wadding gauge Trooper Burlingame also testified that created markings the manufacturing process, which were found on the dis- shell from charged shotgun along recovered fence line of driveway, were the same the markings as on the unfired .20 gauge shells the armoire. Id. at 44. This led to his conclusion that discharged shell had been fired from the *15 gauge .20 taken from bedroom. at shotgun J.B.’s Id. 47. Additionally, Elana the Somple, manager of the forensic department science of R.J. Lee test- Laboratory materials —a ing laboratory at the hearing regarding —testified the results of her of the shirt testing pants and J.B. was wearing at the time of his arrest for the of presence gunshot that, residue.13 Ms. Somple explained whenever a firearm is discharged, the firing pin impacts primer cap the firearm, ammunition loaded which causes the chemical lead, barium, elements and antimony ignite, and therein — —to this force of ignition propels projectile the bullet or in the ammunition out of front of the muzzle of the Id. at gun. 8-9. to Ms. According Somple, rapid ignition of these 3 after impact firing elements with the pin primer cap discharged of ammunition recovered from a crime scene and an article discharged particular gun, of ammunition test fired from a in order to markings discharged determine whether the tool on each article of ammunition, uniquely produced by every gun manufactured, individual match. Id. at 42-43. appear Trooper Burlingame 12. It not does from the record that con- any comparative metallurgical analysis ducted of the shot recovered shells, unspent from the victim and the shot contained within the but only comparison a their of exterior characteristics. Attorney County' Bongivengo— 13. The then-District of Lawrence —John elected not to have R.J. Lee Laboratories test J.B.'s coat and shoes for gunshot residue. N.T. at 136. 4/11/12 cloud, plume, a around vaporize them to and form or causes Id. Eventually, at particles the firearm. airborne immediately surrounding and areas cloud coalesce land on Id. Ms. firearm, such as the hands or clothes. shooter’s all 3 noted that a is found with particle whenever Somple lead, barium, it can antimony together, of and fused elements gunshot is certainty particle with scientific be said discharge of firearm. 9-10. produced residue from the a sides of the Somple Ms. described how she dabbed both of with double- jeans front of J.B.’s shirt and the front lifted sticky tape and then examined particles sided a Her examination tape scanning microscope. under electron side of particle gunshot right revealed one residue on the leg the left particle gunshot shirt one residue on J.B.’s Somple Ms. not jeans. pinpoint of his at 16-17. could area that the individ- specific clothing which on each article Id. that the particles opined ual were found. She also three could have onto one of particles gotten clothing the fire- ways: discharged could have separate person “[t]he arm[;] else who proximity somebody or been close firearm[;] they a came into contact with some- discharged or Id. Somple had on it.” 21. Ms. thing gunshot residue enduring further related that such can have an particles I clothing, noting: discharged on articles of “If presence off, my my put firearm and took clothes them in the corner month, months, two room were undisturbed *16 clothes, you gun- and then still find year, tested those could them.” Id. at 23. contrast, on By explained shot residue she who a firearm went about person discharged that a and then daily her have residue on any gunshot his or activities would Id. at 13. Ms. or her hands those activities. his removed related, thumb,” that she additionally a rule of Somple “[a]s gunshot deposit- to see more residue expect particles would house, there gun ed on someone who fired a inside where airflow, than who fired a outside where gun is no someone Id. at 27-28. particles. wind could affect the deposition Police Jeffrey Martin of the State Corporal Pennsylvania adjudication the results of hearing regarding testified at clothing, spent forensic tests on J.B.’s performed other the fence on the left-hand side of along shell found shotgun home, the .20 surrounding gauge J.B.’s property Martin testified Corporal taken from the residence. shotgun shirt, seized the jacket, jeans morning and sneakers J.B.’s stains, of blood presence of his arrest were all tested for Id. at 123-24. No finger- and no such stains were found. shotgun or DNA material were found on the prints spent itself revealed no shotgun shell. Forensic examination of the latent on the and no blood was detected fingerprints weapon, barrel, on the exterior of the shotgun the interior of the barrel, shotgun. or on the frame of the he, victim, at the hearing C.B. testified J.B., all a close and that daughters relationship and her had “[j]ust with the victim was as normal as it relationship J.B.’s Id. at 141. With between her and her own daughters.” was property, to the use of firearms on the C.B. related respect guns that he would shoot the area of the quite frequently located in front of the house near where the work property Id. at 20, morning February crew on the 2009. 142. parked turkey also described his and in a participation C.B. J.B.’s Saturday, February shoot at an indoor shooting range the .20 was gauge shotgun 2012 —less than a week before at recalled that used the seized. 182-83. C.B. J.B. shotgun turkey .20 shoot and that he loaded and gauge Id. at it shotgun unloaded the for J.B. each time was fired. that, it winter 145.14 C.B. also recounted because was cold evening, place large garage and the shoot took like structure, coat wearing entirety winter shoot, coat on the wearing which was same he was Id. of his arrest. 146. day further testified that he and the victim chose to have
C.B. an number at their house in order to ensure phone unlisted Id. at 149. C.B. that Adam could not contact them. Harvey had left on Harvey related that he listened to 10-12 voicemails “turkey Trooper participation in 14. Wilson confirmed J.B.'s shoot” 4/11/12, Hearing, gauge shotgun. Adjudication with the .20 N.T. *17 victim threatened the Harvey in which cellphone, the victim’s 149, Harvey. feared and that the victim family, and her Harvey whether knowledge of 177. had no personal C.B. the victim lived. Id. where he and knew adjudication hearing as well. testified at the Harvey Adam calls to the victim and making threatening phone He denied led to PFA which petition averments in the victim’s denied the 200-01. him. Id. at of the PFA order entry about the blood test upset that he was not Harvey also stated father of A.H. Id. at 207. he was not the results which showed of evening seeing parents admitted the victim’s Harvey while 19, 2009, nightclub out of a walking as he was February and that he was told to wings, order of chicken picking up an home there- claimed that went Harvey leave. Id. at 208. house, in the base- living where he was after to his parents’ on the ment, upstairs a side door through which was accessible 20, night February out at all on the going floor. He denied home until parent’s that he did not leave and he stated return an auto- morning the next somewhere around 9:00 disavowed Harvey Id. at 211-12. part motive store. he acknowl- living, although victim was where the knowing previously had police people told the state edged having Id. at living Wampum.” him “somewhere informed she History II. Procedural 12, 2012, argu- court entertained oral April On regarding ment from counsel for J.B. and Commonwealth The follow- adjudication hearing. adduced at the the evidence 13, 2012, to Pa. pursuant ing day, April court— 408(A) fact findings adjudicating written R.J.C.P. —issued homicide, 18 Pa. of criminal delinquent charge victim, 2501(a), delinquent for the death of C.S.A. child, 18 Pa. of an unborn of criminal homicide charge 2603(a), unborn fetus. for the death of the C.S.A. court filed an
Thereafter, on April fact and con- findings previous opinion supplementing adjudica- delinquency of its support clusions of law it made *18 tion. In the court as a for opinion, this cited reason determin- committed the ing killing gauge that J.B. fact that the .20 shotgun taken from bedroom was “established upstairs J.B.’s 4/20/12, to be the murder Trial at weapon.” Opinion, Court 12. The court clothing also noted that the which J.B. was when he left for wearing gunshot school “had residue on the right jeans.” side of his shirt and the left side of his at 12- 13. gave
The court for following excluding reasons Adam Harvey as a its suspect: finding Pennsylvania “[t]he State Police promptly Harvey located Adam on the morning 20, 2009;”15 February police when the him near his stopped parents’ house “the hood and roof of his vehicle were covered cold;”16 with snow and the was engine gunshot the lack of hands; Harvey’s residue on and his averment that he did not lived, know where the victim coupled the fact that there was no other presented to establish that he had such Id. at 13. knowledge.
The court also found there a lack suggest- was of evidence ing anyone else entered the residence on the morning 20, The February only 2009. court found that imprints “[t]he observed the snow on that were the children’s morning footprints from the house to the bus There leading stop. residence, no indication that another person approached either foot or in a vehicle after the left children and before Mr. Cable arrived with his 14. The employees.” Id. at court stated that it the absence “especially any considered] unaccounted for or tire tracks around the home.” footprints Id. at 15. The court also period relied on “the time after the arrival of Steve Cable and his tree service employees, during which time no one was approaching leaving seen or opinion, Trooper 15. stated earlier in As Caimona testified that he 20, 2009, pulled Harvey p.m. February over at 1:20 in the afternoon of 4/11/12, report. Adjudication Hearing, which he noted in his N.T. 221, 223, 226. Harvey up leaving testified that he had warmed his truck before 4/11/12, 213, parents’ Adjudication Hearing, Troop- house. N.T. any opinion temperature engine er Caimona did not offer as to of its pulled at the time he the truck over. Smith, of Dr. James residence, testimony and the forensic The court deter- Burlingame.” David Somple Elana evidence, the Commonwealth that, of this on all mined based reasonable doubt. beyond case its proved had May hearing dispositional court held a residential to a secured it committed J.B. after which order stated commitment facility. The treatment 10 days, within motion post-dispositional to file a right had the 620(A)(2),17also but, Pa.R.J.C.P. tracking language “[ijssues before and raised stated that file a elect to you whether or not appeal preserved shall be 5/18/12, Order, 8at Court motion.” Juvenile post-dispositional *19 ¶ motion. post-dispositional did not file a 16. J.B. dispositional from the
Instead, appeal a notice of J.B. filed court directed J.B. order, which following of on matters complained a statement of and file prepare 1925(b). timely lodged to Pa.R.A.P. appeal pursuant juve- on with appeal of complained of matters statement of his court, that the alleged in which he nile the evidence for of delinquency following reasons: gauge that a .20
(1) indicating evidence The lack of forensic fact, was, in family home recovered from J.B.’s shotgun victim; kill the used to weapon murder that J.B. (2) indicating any forensic The absence morning shotgun the .20 gauge handled or fired either home; family inside the of the murder on (3) residue was found no blood or tissue The fact that thereof; examination or after forensic clothing person J.B.’s provides: Rule 620 17. Post-Dispositional Motions Rule 620. Post-Dispositional Motion. Optional A. post-dispositional (1) right to make parties The shall have the court shall be stated requests All for relief from motion. post- be consolidated particularity, and shall specificity and dispositional motion. hearing adjudicatory be (2) shall or raised before Issues party to file a not the elects preserved appeal whether or for deemed post-dispositional motion on those issues.
Pa.R.J.C.P. (4) were two residue only particles gunshot The fact that after forensic examination— clothing discovered on J.B.’s and the other on the left on the side of his shirt right one analyst forensic jeans regarding of his which the side — transfer- and the result of likely possibly testified “[were] ence; residue likely it was that much more extensive had a been clothing shotgun would have been found on the outdoors; indoors, that particles rather than discharged residue can on ... for weeks or gunshot stay clothing months;” even
(5) adjudi- in its placed emphasis The court undue of observations of tire tracks regarding cation the absence in snow around the victim’s home that morn- footprints employees as neither law enforcement nor ing, personnel on the the morn- cutting property a tree service which was ing placed any significance of the murder “looked for or tracks;” or tire footprints whatsoever (6) uncontradicted ignored following court hearing the delinquency evidence of record adduced on the family the timeline of events home regarding J.B., which, according of the murder demon- morning that he lacked sufficient time or to have opportunity strated committed it: school; hurriedly getting ready children were
[B]oth the victim called out from her bedroom for the *20 because the to be hurry up going children to bus that, thereafter, a.m., soon 8:15 coming; approximately the school they both left the house and ran off to catch bus; ordinary that out of the that nothing happened the departure; (per before their and that testi- morning driver), they normally of the bus behaved as mony to school.... Nevertheless did bus ride that, essentially departing court concluded before for the bus, bedroom, J.B. went to his retrieved his upstairs downstairs, came went into the bedroom where shotgun, bed, opened the victim was on her an armoire and lying ammunition, shotgun retrieved a box of loaded his his father’s fiancée in the back of her head near shot 148 bedroom, up- went back exited from range,
contact stairs, ran off with the victim’s and then replaced gun bus. to catch the school daughter 7 old year 8/2/12, on Appeal, of Complained of Errors Concise Statement at 1-3. weight court did not find J.B.’s juvenile
The
to file a post-dispositional
to his failure
claim waived due
weight
of
Instead,
court ruled
J.B.’s
motion.
...
its
been
addressed
“adequately
the evidence claim had
Law issued on April
of Fact and Conclusions
Findings
20, 2012.”
April
issued on
Opinion
and supplemental
Order, 8/8/12, at 1.
Juvenile Court
adjudicating
opinion
and well-written
comprehensive
In its
J.B.,
(Pa.Super.2013),
In re
Further,
in its
our Court’s
the court noted
D.S.,
650,
The court
while
speci-
Pa.R.Crim.P.
weight
fies that
of the evidence claims in criminal proceedings
are
waived unless
are raised with the trial court in a
trial,
motion for a new
Rules
Pennsylvania
of Juvenile
Procedure have no counterpart requiring the same manner of
The
preservation.
only
court found that
other rule of
procedure which could possibly apply to render J.B.’s claim
“[ijssues
302(a),
waived was Pa.R.A.P.
provides
which
not
raised
the lower court are waived and cannot be raised for
302(a).
court,
the first
time on
Pa.R.A.P.
appeal.”
however, refused to
this rule as it
apply
regarded
appli-
such
cation to be “a
sanction
defendant
motion,”
failure to file an optional post-adjudication
which the
J.B.,
court deemed our In re
decision to prohibit.
D.S.
In re
A.3d
that,
The court further determined
if it
weight
found J.B.’s
it,
claim waived due to his counsel’s failure to
preserve
relief,
would have no recourse to seek PCRA
which would be a
harsher result than that
an
faced
adult criminal defendant
weight
whose
claim was waived on direct
for the
appeal
same
Next,
reason.
the court found that the juvenile court “ad-
dressed J.B.’s
of the evidence
arguments
its Pa.
1925(a)
R.A.P.
opinion,” by incorporating,
its
opinion,
prior
of fact from
findings
April
its order
2012 and its
reasons for adjudicating
delinquent,
opin-
set forth in its
J.B.,
Thus,
ion of
2012. In
April
re
19. See
ered In re that, decision, in that noting D.S., that distinguished court the or at arguments defenses case, any did not raise juvenile the that, by found whereas the court hearing, adjudication the court, juvenile contrast, J.B., argument in closing his he now ... that arguments the same precisely “presented the evidence of of support on appeal asserts that, because reasoned the court Consequently, claim.” court, juvenile before the arguments these had raised in a 620(A)(2) again him to raise them not require did Rule motion. post-dispositional merits, claim review, J.B.’s on the court proceeded
The of the evidence. the was that his court, on our decision Commonwealth relying primarily (2013), its review to 1049 confined Pa. 64 A.3d v. Clay, record to determine evidence in the certified examining the by made of fact findings certain supported whether it or whether adjudication, in its upon court relied juvenile deter- The court first its discretion. court abused fact that no other finding of that the court’s mined any “absence of residence due to the person approached the home” or tire tracks around for foot prints unaccounted at the record introduced the evidence of not supported was J.B., The court In re 69 A.3d adjudicatory hearing. any im- regarding testimony Gary of Cable noted that observa- confined to his in the that he saw was snow prints in the middle of the footprints the two sets of small tions of testimony any not other provide and that he did driveway, on else anywhere in the snow observing imprints regarding further observed: The court property. arriving officers first any police of (including No witness scene) footprints an absence of observing testified to on the residence, any side of the morning, property on the even entrances. No witness of its four any or at or around in the footprints to look for making attempt an testified same), (or and no photographs snow the absence (including on the anywhere property snow undisturbed residence) were entered into either of the entrances to fact, In other than Cable’s unremarkable point evidence. the children’s in the drive- testimony regarding footprints any the record on this case does not establish way, appeal or absence of any finding regarding presence basis on the footprints anywhere property. snow Id. Thus, court’s court held that no on the finding person fact entered the residence February body 2009 until after the victims’ morning disregarded. discovered was erroneous and should be The court next examined the evidence of record to deter- *23 if it that “no supported mine the trial court’s conclusion one approaching leaving was seen or the residence” after Cable arrived at around 9:00 a.m. Id. The Court employees and his either, concluded that the record not support finding did this Cable, witness, as neither nor evidence on any provided other this issue. To the the evidence established that contrary, Cable and his work crew remained at all times in the area house, between the of the woods and the front of the edge not could all four of the testify he did as to whether he see entrances to the home from the time he came onto the Also, the arrival the the court property police. until emphasized presented that Commonwealth no evidence “[t]he to establish whether or not entered or exited the anybody span residence 45 minute from 8:15 a.m. until [the] Id. at 281 approximately 9:00 a.m.” when Cable arrived. omitted). (parentheses juvenile
The court observed that the court relied on these of fact to conclude that “the Commonwealth’s evi- findings dence the that someone could have precluded possibility ap- the proached morning February the residence on child.” Id. Hence, and killed and her [the victim] unborn juvenile these of fact a substantial findings played part court’s decision that J.B. committed the homicides for which Id. view, In the these charged. court’s because record, findings support lacked court a palpable rendering “committed a abuse of discretion ruling plainly contrary is evidence.” Accord- order and remanded the dispositional the court vacated ingly, for further proceedings. remaining whether
The court did not address to sustain the of adequate of record was The court killings. committed finding court’s that J.B. speculate not know and cannot stated, in do regard, “[w]e or, finding support evidence would remaining whether Thus, our instead, court. the conscience of shock has not asserted because counsel review ends appeal.” the evidence claim sufficiency of Court, from our we sought review After the Commonwealth three following to consider appeal allowance of granted questions:
(1) waiver that the law of holding Did the Court’s Superior file a post-dispositional the failure to apply does not adjudication hearing based on seeking a new motion holding panel of a prior the evidence contradict weight of by a may not be overturned Court Superior court that does holding on a of this subsequent panel, based of this case? to the circumstances apply not (2) substitute for a acceptable not an closing argument Is a adjudication hearing motion for new post-dispositional purposes because the of the evidence based on *24 of review re- and because the standard vary each event a motion? quires
(3) juvenile court’s ulti- supports the record [sic] Does present were persons mate conclusion that no other was the occurred and that J.B. house where the crime act, such that delinquent committed the person who justice? of not shock one’s sense verdict does (2013). J.B., 554, A.3d 408 In re 623 Pa. Arguments the Parties
III. of begin by we dispositive, find the first two issues Because we parties respect of the briefly recounting arguments below panel first that the argues thereto. The Commonwealth good be law longer found In re R.N. to no improperly which, it, thereby purported panel to overrule as a Court, it could not do as one of that tribunal Superior panel cannot overrule another The Commonwealth asserts panel. R.N., that, juvenile under In re a is to raise an required issue court, before the appeal. or it is waived for The Commonwealth posits our Court’s decision In re D.S. did not overrule In re R.N. since In re dealt with the D.S. issue of the proper preservation sufficiency of a of the evi- claim, Thus, weight dence not a one. the Commonwealth reasons In re R.N. still good respect remains law with to the necessity of claims to the presenting weight court for and, preservation, because did not file a post-dispositional claim, motion presenting though even his claim is optional, waived. further distinguishes Commonwealth In re D.S. on the
grounds that a sufficiency evidence claim has a constitu- dimension, tional any as conviction which is not supported by legally sufficient evidence violates the convicted individual’s due under process rights the Fourteenth Amendment. By contrast, Commonwealth, according there is no similar constitutional concern implicated weight in a of the evidence claim. Additionally, points Commonwealth out J.B. is currently in a facility detained secure so he could seek relief for waiver of his claim by filing petition for a writ of habeas corpus, whereas the re could not. Finally, In D.S. Commonwealth notes that a of the evidence claim law, but, rather, pure question does not involve a challenges discretion; hence, view, the trial exercise court’s its it logically follows there must first be a decision of the trial court in which it exercised its discretion by ruling evidence, appellate so that an court review it. may rejects
The Commonwealth also that a suggestion weight of the evidence claim be raised in a may closing argument, as that would conflict with the well-settled principle may of law that an issue not be raised at any other time than law, that, R.N., as established re pursuant post- In motion is the dispositional proper way preserve weight *25 claim, analogous filing post evidence to the of a sentence criminal of the claim in a weight motion to a evidence preserve Further, the different highlights matter. Commonwealth relating argument served and a motion by closing a purposes view, In the a weight of the evidence. Commonwealth’s to to to convince the fact-finder closing argument is undertaken party, in favor the arguing make an initial determination of credibility and suggested on the evidence of record based determinations; whereas, asks the trial a motion post-hearing prior whether a to examine the record and determine judge justice. court’s sense of Com- determination offends the judicially argument a argues closing monwealth that to allow motion, Superior as the post-decisional to substitute done, exercise in rulemak- has would be an procedural Court authority exclusively promul- to ing usurps which our Court’s to procedure court governing juvenile pursuant rules gate V, Pennsylvania In Article Section 10 of the Constitution. sum, presented contends that never the Commonwealth J.B. court, that, we and consequently, his claim find it should waived. by given that the three reasons responds asserting
J.B. finding juvenile’s in In re not sufficien- our Court D.S. for to his the evidence claim are cy equally applicable of waived case, also similar that his finding support claim not waived. the rationale Echoing the evidence was below, filing that the Superior argues Court decision case; finding in his optional motion post-dispositional for a his claim waived would cause a harsher result than defendant, ad- and the court similarly-situated adult in its Pa.R.A.P. dressed claim 1925(a) review. opinion impediment appellate so there is no In distinguish avers that the attempt J.B. Commonwealth’s it involved grounds sufficiency re D.S. on “each deals with unavailing [of evidence is since these cases] to due right court and the constitutional process [the] more not with generally, type appeal process before brought Appellee’s this court.” Brief R.N., his that, under the of In re argues holding even waived, all for a requires claim is not inasmuch as that case
155 a of waiver of a juvenile finding particular to avoid litigant juvenile has the issue to the issue is that raised weight maintains that he did raise his court. J.B. adjudication issue to the court evidence are, and that motions closing argument, post-dispositional 620, merely optional. urges the terms of Pa.R.J.C.P. by endorsing we not render the commands of that rule moot motion is post-dispositional the Commonwealth’s view that a when, here, even a of the evidence claim is required, weight as to the court. otherwise raised Analysis
IV. re question appellate of whether J.B. waived law, weight question view of his of the evidence claim is a and, Pocono our accordingly, plenary. standard review is Investors, Bd., Manor LP v. Pennsylvania Gaming Control (2007). 625, 209, Further, general 592 Pa. 927 A.2d 216 “[t]he weight rule in this Commonwealth is that a of the evidence claim to the who primarily judge is addressed discretion Horowitz, at trial.” Armbruster v. actually 572 Pa. presided Edwards, v. 1, 698, (2002); Commonwealth 813 A.2d 702 588 (2006). 151, 1139, Pa. A.2d 1148 In a trial reviewing 903 claim, court’s of a “an weight of appellate court determines whether the trial court abused its record; not upon discretion based review of the its role is to in the first instance.” Com consider the underlying question (2008). 510, 645, Blakeney, monwealth v. 596 Pa. 946 653 A.2d Thus, a of the evidence claim must be to the weight presented trial court so that it address it in the first instance. may Widmer, Commonwealth v. 137, 211, 212 547 Pa. 689 A.2d Karkaria, (1997). 412, See also Commonwealth v. Pa. 625 533 (1993) (“An 1167, 1170 n. 3 that the verdict is allegation A.2d ‘weight’ of the evidence is a matter to be resolved court.”). by the trial of the evidence claim has been pre
Once
court,
to the trial
it then
sented
reviews
evidence adduced
facts,
“notwithstanding
at trial and determines whether
all the
clearly
ignore
certain facts are so
that
to
greater weight
deny
the facts is to
with all
equal weight
them
give
them or
award a
A trial court should
question, is whether manner of presentation, cou- with the fact that the court pled ruled on it its 1925(a) opinion, sufficiently preserved Pa.R.A.P. his claim for appellate review. The Rules of Juvenile Court Procedure do not, present, adjudicat- how a who has been specify ed delinquent present must of the evidence claim to court so that the claim preserved appellate is However, matter, review. in a procedurally identical our Court, Widmer, addressed, supra, in the context of criminal proceedings, a similar in the rules gap procedural governing presentation appellate review of a of the evidence Therein, claim. our Court unanimously refused find criminal defendant’s weight of the evidence claim waived where it was raised defendant’s statement of matters of on complained appeal and ruled on the trial court. of fundamental Principles equal fairness and administration of justice that we demand treat J.B.’s case in the identical manner.
By way of background, prior preserve order to *28 review, any issue for appellate a criminal defendant had to present the issue to the trial court in a post-verdict written See, Metz, 341, motion. e.g., Commonwealth v. 534 Pa. 633 (1993). 125, 1994, A.2d 127 In the Rules of Criminal Proce- dure were amended to make such which optional, motions defendant, allowed a once his or her of sentence judgment final, filing became to the of such motions bypass altogether proceed and to file a direct To achieve immediately appeal. result, 1410, this Pa.R.Crim.P. now renumbered Pa. as 720, promulgated by R.Crim.P. our and became Court 1, effective rule January provided, This relevant that a part, right optional defendant retained the to make an post-sentence motion after a of had been ren- guilty verdict dered and sentence but that raised pronounced, “[i]ssues before or trial shall be deemed for during preserved appeal
158 file a post-sentence elects to the defendant or not whether 1410(B)(1)(c). Howev- Pa.R.Crim.P. those issues.” motion on Proce- rule, Rule of Criminal nor other er, any that neither present motion to dure, post-sentence the of a required filing court, that it could trial so claim to the of the evidence weight were The rules first instance. claim in the the consider “challenges to though even subject, silent on altogether ‘before or never be raised can of the evidence weight be raised only can trial’; challenges rather such after J., Widmer, concurring) (Cappy, A.2d at 213 trial.” offered no clear Thus, criminal rules original). (emphasis weight of challenging to a claim present on how guidance court, exercise the trial court’s the trial so that evidence to an by be reviewed the claim could ruling of discretion Brown, 538 Pa. See, v. e.g., court. Commonwealth appellate (1994) weight (requiring 648 A.2d in the first trial court to the presented claim be evidence weight of a of instance, review clarifying appellate trial court’s review of the is limited to the evidence claim it). presented the claim deciding exercise of discretion Widmer, the defendant rape, his conviction following In instead, motions, but, as permitted file post-sentence did not ap- a direct immediately took former Pa.R.Crim.P. by 1925(b) state- In his Pa.R.A.P. Court. peal Superior The trial of the evidence. ment, weight challenged 1925(a) opinion in its Rule the claim court addressed to the contrary verdict was found that to take jurisdiction evidence, deprived that it was but noted Superior appeal, On appeal. action due any further on the ruling the trial court’s did not review Court had instead, the defendant claim; it found that it in the failing to raise review of the claim appellate waived to consider appeal allowance granted Court trial court. Our 1410(B)(1)(c) finding on this of Pa.R.Crim.P. impact waiver. Highlighting reversed. our Court opinion,
In a unanimous *29 of the evidence weight raised his fact that the defendant the 1925(b) statement, that emphasized we in his Pa.R.A.P. claim the present not a case where the defendant failed to this was instance, and, result, in as a claim to the trial court the first a was “no need for the Court to review cold Superior there concerning and make an initial determination the record Widmer, of the evidence.” 689 A.2d Conse- weight “to rule Superior we deemed it error for the Court quently, that failure to file a motion for post-sentence [the defendant’s] claim the verdict waiving a new trial had the effect of his that contrary Accordingly, was to the of the evidence.” Id. weight we remanded the case to the trial court to the defen- permit tunc, file, of pro challenging weight dant to nunc motion seeking the evidence and a new trial on that basis. concurred, that “fairness Cappy observing Then-Justice dictates that the instant case be remanded to the trial court permitted defendant to file motion for new [the be] trial nunc pro challenging weight tunc evidence.” J., However, Id. at 213 (Cappy, concurring). Cappy Justice also Procedural Rules suggested Criminal Committee address this “clear void” in the rules and remedial propose clarify weight amendments evidence claims must court, be raised first the trial or else be deemed waived. by Id. His sense of urgency compelled prediction there would be instances where a of the evidence weight 1925(b) either challenge raised a Pa.R.A.P. statement would be in a Rule cursory reviewed fashion trial court its 1925(a) or In opinion, Cap- not addressed at all. Id. Justice view, rule 1410 as it now py’s “given language [former] stands, a defendant in those circumstances should not caught be denied his or her right challenge evidence.” Id. end, decided, eight
Towards this months after Widmer was 1124A, our now renumbered promulgated Court Pa.R.Crim.P. provides: as Pa.R.Crim.P. 607. This rule Challenges Weight Rule 607. of the Evidence (A) A claim that the verdict was evidence shall be raised with the trial in a motion for judge a new trial: *30 record, sentencing;
(1) time before any orally, on (2) or sentencing; time before any written motion at by (3) motion. post-sentence in a proceedings, in criminal Consequently, Pa.R.Crim.P. 607. of the weight how a uncertainty regarding any rule eliminates by provid- the trial court to be presented evidence claim is written motion orally by either or it must be raised ing that sentencing. after or written motion sentencing, before of the litigants warns specifically to the rule also comment procedures review if these appellate of waiver of consequence (“The Pa.R.Crim.P. Comment are not followed. See to the challenge it clear that a rule is to make of this purpose trial or it judge raised with the the evidence must be weight of waived.”). will be Widmer, in Procedure at issue the Rules of
Like Criminal “gov- Procedure —which Rules of Court the current Juvenile si- utterly in all courts”20—are ern delinquency proceedings be the evidence claim must weight lent as to how a the claim may that it rule on juvenile court so presented above, instance, is, necessary as discussed in the first which Further, review. Pa.R.J.C.P. appellate for prerequisite 620(A)(2), desig- it filing expressly of what governs which motion,” uses language “optional post-dispositional nates as an 1410(B)(1)(c), to that of former Pa.R.Crim.P. nearly identical “[ijssues be stated, during or trial shall raised before which not the defendant whether or preserved appeal deemed for those issues.” See motion on post-sentence elects to file (“Issues 620(A)(2) before or raised Pa.R.J.C.P. appeal preserved shall be deemed adjudicatory hearing to file a post-dispositional or not the elects party whether issues.”). motion on those Widmer, faced result, J.B., the defendant just
As a as post- of a optional filing that made rules procedural how motion, specify did not otherwise and which dispositional in the first was to be presented of the evidence claim weight it for preserve court in order instance to the 100(A). 20. Pa.R.J.C.P. Also, Widmer, review. as did the defendant in
appellate claim presented weight to the lower court 1925(b) statement, it in by raising his Pa.R.A.P. which he view, comprehensively set forth reasons in his specific why, court’s evidence. Widmer, as the trial
Just court did court claim, here considered of the evidence and then J.B.’s 1925(a) must, therefore, ruled on it in its Rule opinion. We *31 treat claim in J.B.’s the same manner Widmer, words, as we did the defendant’s claim in in other find that it is not waived and remand this case to allow to J.B. file a post-dispositional pro seeking motion nunc tunc a new adjudication on the that his hearing grounds was delinquency weight of the evidence. Princi- of fundamental ples equal jus- fairness and administration of tice demand that such in similarly-situated litigants be treated See, Castillo, e.g., same fashion. v. Commonwealth 585 (2005) 395, 775, Pa. 888 A.2d 779 to (refusing interpret Pa. 1925(b) R.A.P. “yield a manner that would unsupportable distinctions between similarly litigants.”); situated Common- Marshall, (2002) wealth v. 570 Pa. 810 A.2d (Castille, J., (“[T]he concurring and most dire dissenting). circumstance that can characterize a high appellate Court’s jurisprudence: similarly-situated an inconsistent to approach litigants.”).
Indeed, approach we took in Widmer is even more justified in the instant matter because this is a D.S., proceeding. As our Court in In re as emphasized below, the Superior panel recognized finding Court a of waiver proceedings consequence has a harsher for a defendant, juvenile than a similarly-situated criminal inasmuch as if a “claim is found to be waived on appeal, cannot raise such a under the because that challenge [PCRA] not, terms, act does apply juvenile proceedings.” its Thus, the absence of that avenue of collateral relief provides stronger reason to decline to waiver impose in this matter. finding J.B.’s sum, we conclude
In because circumstances under these be waived claim to the evidence our Court of affairs unjust state manifestly would be —a of funda- unacceptable principles recognized Widmer — take that our Court reason counsel and sound justice mental matter, and remand this instant in the path prudent the same post- file a allow J.B. juvenile court to matter tunc,21,22 pro motion nunc dispositional vacated, matter is and this is Superior Court Order Pleas County Court Common the Lawrence remanded to with this consistent for further proceedings Juvenile Court is relinquished. Jurisdiction Opinion. did not participate
Former Justice McCAFFERY this case. decision of BAER EAKIN and and Justices Justice CASTILLE
Chief join the opinion. concurring opinion. files Justice CASTILLE
Chief
dissenting opinion.
concurring
files
Justice SAYLOR
dissenting opinion.
files a
STEVENS
Justice
*32
CASTILLE, concurring.
Chief Justice
separately
in full.
I write
Opinion
join
Majority
I
the
argued
nor
the
neither cited
the Commonwealth
note that
Widmer,
547 Pa.
689
v.
of Commonwealth
applicability
holds,
which,
plainly
(1997),
Majority properly
as
A.2d
of the
weight
to raise his
remand to allow J.B.
counsels a
tunc
pro
motion nunc
in a post-dispositional
evidence issue
similarly-situated
approach
to maintain a consistent
order
with the
institutional co-counsel
counsel and
J.B.’s
litigants.
warrants a remand to
of this issue
21. Given our resolution
court,
remaining argument
the Commonwealth’s
we need not address
deeming
weight
J.B.’s
Superior Court erred in
appeal that the
claim meritorious.
promul-
gap
procedural
rules
highlighted a
case has
22. Because this
Court,
Rules Committee
our Juvenile Court
gated by
we also direct
our
amendments.
appropriate
curative
rapidly as feasible
to address as
Law
likewise
did not find the
apparently
Juvenile
Center
A
the briefs in the
Court
Superior
Widmer case.
review of
either,
argued
panel
shows that the case was not
to the
below
panel’s
grapple
which
at least in
failure to
explains,
part,
briefing
with the most
situation. The
logically analogous
lapse
below,
ironic since both
and the
cite to a later
parties,
panel
is
case,
question.
albeit not on the waiver
appeal
Widmer
Widmer,
v.
560 Pa.
In author herself more any Majority proves formidable at research than the which is a legal parties, good The fact are thing. parties controlling, unaware of or relevant cabin the persuasive, decisions Court cannot approach, Majority goes Court’s and the about dispensing justice I notwithstanding lapse. parties would remind the research, of the value in more and conducting thorough legal particularly docket, in cases on the allocatur arising Court’s cases accepted precisely impor- which are often because of the tant the issue impact may have statewide. SAYLOR, concurring dissenting.
Justice I to which it support majority’s approach degree declines to enforce an waiver outright against however, I differ with the remand for appellee; decision to redundant review. weight-of-the-evidence
In the reasons its the ma- explaining underlying approach, jority conceptual closing arguments envisions a divide between judge non-jury made to a as the fact-finder in proceedings a claim that acquittal/dis- of the evidence favors 156-57, Majority Opinion, missal. See 106 A.3d First, majority temporal alludes to a distinction. See id. (“[I]t adjudica- is a matter of that a claim that an plain logic tion of is of the evidence delinquency that the court has made such a presupposes already adjudication.” (emphasis original)). majority final also *33 difference, perceives closing arguments a substantive that on whether the government guilt beyond focus has established doubt; whereas, weight-of-the-evidence a reasonable a chai- 164 “to whether to reassess determine asks the fact-finder
lenge warrant that weighty of record are so certain facts id., or, a analogously, adjudication hearing,” new of a grant context. trial in the adult criminal new view, however, both the temporal From my point majority are illuso- by relied upon distinctions substantive way in an abstract First, posit one can while I realize that ry. logically cannot or challenge a to a verdict Majority adjudication, Opinion, see the verdict or precede Widmer, 547 Pa. 156-57, 95; v. Commonwealth 106 A.3d (1997) J., 211, concurring), 137, 141, (Cappy, 213 689 A.2d every about rou- could be made temporal similar observation in trial or of evidence to the admission ruling pertaining tine However, rule—and with general at least as a adjudication. are objected-to rulings to exceptions reason —redundant good v. 584 Pa. Pressley, required. no Commonwealth longer Cf. 603). (2005) 624, 630, Pa.R.Crim.P. (citing A.2d 224 887 attorneys argue to regularly criminal defense Substantively, heavily weighs that the evidence closing factfinders in remarks (or juvenile charges), obvious- dismissal acquittal in favor of to evidence favorable the defense strengths of ly highlighting See, government. that presented and weaknesses of (“In J.B., (Pa.Super.2013) A.3d e.g., In re case, presented during closing argument ... present court that to arguments same precisely of his of the evidence support appeal now asserts claim.”). to the contention way is in no confined defense proof failed to adduce sufficient that the has Commonwealth (albeit is, pursued, often obviously, strategy also no evidence presents in cases in which the defense example, own). its to reasons, impediment little rational above I see
For the argue judge, during to a juveniles defendants or permitting non-jury proceedings, the course such perfect requires acquittal/dismissal them statements by advancing review appellate claims for Appellate Rule of per of on complained appeal of matters
165 1925, as in the present Along Procedure occurred case.1 these lines, agree fully I with the Court’s stated rationale Superior rejection in its of the waiver assertion. id. at outright See 276-77. I would to address the merits Accordingly, proceed adjudication Superior holding Court’s evidence, weight per upon third issue This, course, which was allowed. would alleviate the appeal inefficiency and of the outcome incongruity by directed majority, which is to remand court consider already claim which that court has resolved and which also in fully already has been vetted the intermediate court on direct appellate review. STEVENS,
Justice dissenting. I dissent from the to vacate respectfully Majority’s decision the Superior Court’s order and remand this matter to the juvenile court to to file a motion for a new permit J.B. tunc, adjudication nunc hearing, pro challenging weight of supporting his for delinquency one count of first-degree murder and one count of homicide an unborn child. For the infra, reasons discussed J.B. waived court, weight his of the evidence claim in the thus, I would reverse the Court’s order and reinstate Superior the dispositional order. I it
Initially, note is uncontested that J.B. did not file a post- dispositional raising weight motion his of the evidence claim and, Majority, agree similar to the I with the Commonwealth that J.B. could not raise a of the evidence challenge However, closing his I argument. disagree any sugges- tion by Majority may preserved have 1925(b) it, time, claim by raising for the first his Pa.R.A.P. statement or that the matter procedurally instant is identical jury proceedings 1. Because bench and trials in adult criminal are materially judge different in that the trial serves as fact-finder in the context, tell, former but latter I not the so far as can the most salient justification equating weight-of-the-evidence challenges for as between (insofar jury proceedings post- bench and trials in adult criminal as both) proceedings consistency. required verdict are for the is sake 166 Widmer, A.2d 211 689 v. Pa.
to Commonwealth (1997). part: in relevant provides,
Pa.R. J.C.P. Post-Dispositional Rule 620. Motions Optional Post-Dispositional Motion. A.
(1) right post- have the to make parties shall the court requests motion. All relief from dispositional *35 and shall particularity, be stated and specificity shall consolidated in the motion. post-dispositional be
(2) hear- during adjudicatory or the Issues raised before for or not the appeal shall be deemed whether ing preserved those to motion on party post-dispositional elects file a issues. (bold 620(A)(1),(2) original). in
Pa.R.J.C.P. is viewed under the lens When Pa.R.J.C.P. 620 Act, 476, 79 see In re 621 Pa. Statutory Carney, Construction (2013) the Statutory A.3d 490 we utilize Construc- (indicating Act, 1501-1991, 1 in this Court’s examining § tion Pa.C.S. rules), of and language it is evident that the the Rule is clear and no in rules unambiguous, “gap” procedural there is of presentation appellate review governing Rather, language pursuant plain the evidence claims. to post- has the to make a juvenile right of Pa.R.J.C.P. a motion; however, juvenile prop- to the extent the dispositional during adjudicatory hearing, an or erly raised issue before file juvenile additionally post-dispositional need not in order to the issue for preserve appeal. motion precept to 620 this legal The Comment Pa.R.J.C.P. confirms provides, part: in that it in relevant (A)(2), during or paragraph any issue raised before Under is whether preserved appeal deemed chooses the issue party post-dispositional to raise an issue argue motion. It follows that the failure brief or issue motion would not waive that post-dispositional
167 properly preserved, as as the issue was appeal long instance, adjudication. during the first before or 620 cmt. Pa.R.J.C.P.
Thus,
of a
provides
making
post-
while Pa.R.J.C.P.
is,
motion is
it
as the Comment
dispositional
“optional,”
confirms,
to the extent the issue is
“optional”
Pa.R.J.C.P.
raised before or
capable
properly
during
otherwise
is,
provides post-
That
Pa.R.J.C.P. 620
adjudicatory hearing.
motions are not
intended to be an additional
dispositional
of issues other-
procedural step necessary
preservation
for the
juvenile
wise
raised before or
court’s
properly
during
or an additional
for those claims
proceedings,
procedural step
deemed,
which
have
an
appellate
we
due to
court’s standard
review,
to be raised for the first
time on
permitted
appeal.
D.S.,
(2012) (indicating
See In re
614 Pa.
1. The Comment to 620 Pa.R.J.C.P. may opt preserve weight post- in niles of the evidence claims provides alleging dispositional "motions that the court's motions findings against weight specify why the were of the evidence are to findings weight were of the evidence.” Pa.R.J.C.P. 620 cmt. not, may, weight 2. Juveniles but need raise their of the evidence claims post-dispositional properly in motions if otherwise raised their 168 Majority any suggestion with disagree
I specifically
claim,
his
by raising
weight
waiver
have avoided
may
that J.B.
1925(b)
Penn
time,
statement.
in his Pa.R.A.P.
for the first
1925(b)
may
statement
is clear that a Pa.R.A.P.
sylvania law
waived claims.
previously
vehicle to resurrect
not be used as a
(2011),
Sanchez,
1,
24
36 A.3d
v.
614 Pa.
See Commonwealth
—
122,
denied,
—,
Additionally, the Pa.R.A.P. advisory evidence claim its waived 1925(b) application should not alter Court’s opinion fact, previously In this Court has waiver doctrine in this case. Sherwood, v. such an See Commonwealth rejected approach. denied, (2009), 92, 110, 483, 494 cert. 559 U.S. Pa. 982 A.2d 603 (2010) (holding waiver 176 L.Ed.2d S.Ct. trial court ad the fact the remedy despite was appropriate appellant’s weight the adult criminal dressed the merits of claim, for the first time which was raised the evidence statement). 1925(b) Pa.R.A.P. case is that the instant Majority I
Finally, disagree Widmer, which was neither supra, identical to procedurally *37 adjudicated delinquent. weight them claims after the court weight governing of the evidence with our rules This is consistent regard criminal defendants. See Pa.R.Crim.P. claims with to adult (“When sentencing, [weight] before the defendant cmt. claim is raised motion.") not, again post-sentence in a may, but need raise the issue 720(B)(l)(a)(iv)). (citing Pa.R.Crim.P. nor argued by cited either the Commonwealth or J.B. their Widmer, In respective appellate briefs. this Court was faced Superior panel with a situation where a Court found a weight of the evidence claim to be waived since it was not presented motions, but was raised for the first time in post-sentence 1925(b) Pa.R.A.P. appellant’s Concluding statement. there was some in then ambiguity Pa.R.Crim.P. 1410 as it claims, related to preserving weight and the circumstances in Widmer were otherwise from distinguishable precedent upon which the had relied in Superior panel Court waiver, remanded, finding reversed and concluding Court the appellant permitted should be to file a motion for a new trial nunc 1410(B)(l)(a)(iv). pro tune under then Pa.R.Crim.P. However, judice, sub in the case the text of Pa.R.J.C.P. Comments, particularly as its supported by sets forth a proper, juveniles clear mechanism providing present court, their challenges and J.B. should have been aware of the preservation requirements.
Therefore, since J.B. failed to raise his below, evidence claim properly court unlike the Majority, I would Superior reverse the Court’s order and reinstate the dispositional Accordingly, order. I dissent.
106A.3d583 Pennsylvania, Appellant COMMONWEALTH of
v.
Christopher WILLIAMS,Appellee.
Supreme Pennsylvania. Court of
July