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decided: September 23, 1974.


Appeal from order of Court of Common Pleas of Montgomery County, Nos. 690 and 691 of 1973, in the interest of Dennis Helman and John Helman, minors.


Rhonda Lee Jordan and Calvin S. Drayer, Jr., Assistant Public Defenders, for appellants.

Stewart J. Greenleaf, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.

Author: Cercone

[ 230 Pa. Super. Page 486]

Dennis Helman, age 14, and his brother John Helman, age 15, were adjudged "delinquent" following a hearing in the Juvenile Division of the Montgomery County Court of Common Pleas. The appeals of both brothers have been consolidated and will be dealt with in a single opinion as the same question is involved in each. Since the appellants contend the evidence was insufficient to support the adjudication of delinquency, we examine that evidence in the light most favorable to the Commonwealth, recognizing, "that the Due Process Clause of the United States Constitution requires proof 'beyond a reasonable doubt' at the adjudication stage when a juvenile is charged with an act which would constitute a crime if committed by an adult." Johnson Appeal, 445 Pa. 270, 272 (1971), citing In Re Winship, 397 U.S. 358 (1970), and Terry Appeal, 438 Pa. 339 (1970). So viewed, the evidence presented by the Commonwealth is not sufficient to support a finding that either of the Helman brothers is a "delinquent child" as defined by the Juvenile Act, 11 P.S. ยง 50-101 et seq.*fn1

A complete review of the testimony reveals the following chain of events. On October 6, 1973, the Helman brothers were met at their house by the Rudella brothers, Frank and Robert, ages 15 and 13, respectively. As the Helman boys were engaged in some lawn

[ 230 Pa. Super. Page 487]

    mowing chores, the Rudellas waited until the work was completed and then the four walked to Heyser's barn for the purpose of smoking some cigars that Frank and Robert Rudella had brought with them.*fn2 The barn was located near the Helman home, and the boys had apparently visited it on prior occasions. They did not, however, have Heyser's permission to enter the barn, and in fact had on previous occasions been told to stay out of it.*fn3 The barn was used as a storage building by the Heyser Landscaping Co., and contained various landscaping equipment and materials including hemp matting and straw such as is used to cover newly seeded ground to prevent erosion. This hemp matting was in large rolls, each approximately one foot in diameter by four feet in length; the rolls were stacked on top of each other. The boys entered the barn, and after "getting situated" next to the pile of hemp matting rolls, the cigars were distributed and they proceeded to light their cigars and to smoke them.*fn4 Shortly thereafter, Frank Rudella stated that the fiber ends of this hemp matting would produce a sparkling effect when touched with the end of a lighted cigar. This he proceeded to demonstrate and the hemp fiber sparkled briefly and then went out. He then took a match and attempted to light the fiber with the match. He stated on direct examination as a witness for the Commonwealth, "I wanted to show the Helmans the little sparkling effect you get by the lit end of it [the hemp] and when I lit it, it got

[ 230 Pa. Super. Page 488]

    all out of control." Later he repeated this saying, "I lit the little end of the stuff, and then it started sparkling, and then one roll of it caught." On cross-examination he was asked the following series of questions: "Q. Who mentioned it [lighting the hemp] first? A. Me. Q. What exactly did you say? A. I was going to show them that the stuff did [sic] burn, it sparkled. Q. That it didn't burn? A. Right." Furthermore, Frank Rudella stated on direct examination that he had to apply the match twice before the hemp ignited: "Q. But the hemp didn't light at any rate? A. I had to apply the match twice. Q. All right. Now, when it didn't work the first time, did either of the Helman boys say anything to you? A. (Pause). I think so, sir. Q. What did they say, and who said it? A. I think Jay [John Helman] said 'Stop it.' Q. He said to stop it? A. Yes. Q. Did he try to stop you? A. No.*fn5 Q. Then what did you do? You lit a second time? A. Yes, sir. Q. And that was when it got out of hand? A. Yes, sir." The resulting fire totally destroyed the barn and its contents; total damages exceeded $20,000.

On October 25, 1973, petitions charging John and Dennis Helman with Criminal Mischief were filed with Juvenile Court, alleging that they were ". . . delinquent for the following reasons: on Saturday, October 6th, 1973, subject along with three other boys while trespassing on the property of Heyser, 400 W. Park Avenue, Troop, Pa., while one of the boys was smoking a cigar, it did cause a ...

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