Appeal from the Order entered April 1, 2009, in the Court of Common Pleas, Philadelphia County, Juvenile Division, at No. 0719-08-12
The opinion of the court was delivered by: Allen, J.
BEFORE: STEVENS, P.J., FORD ELLIOTT, P.J.E., MUSMANNO, BENDER, GANTMAN, PANELLA, ALLEN, LAZARUS, and MUNDY, JJ.
D.Y. ("Appellant") appeals from the dispositional order entered after he was adjudicated delinquent on charges of burglary, criminal trespass, theft by unlawful taking, receiving stolen property and criminal mischief.*fn1 We affirm.
On April 1, 2009, an adjudicatory hearing convened, during which Appellant and the Commonwealth stipulated to the following facts. Between 6:00 and 7:00 p.m. on October 10, 2008, Rasheedah Francis returned to the home she shared with her husband and daughter at 1520 North 60th Street in Philadelphia. When Ms. Francis arrived, she found her front door wide open, her back door damaged, and a back window open. The house had been ransacked, and jewelry, electronics and cash totaling $14,000 had been stolen.
The Commonwealth thereafter presented the only two witnesses to testify at the hearing: Philadelphia Police Detective Roseanna Filippello, and Fingerprint Technician Clifford Parson.
Detective Filippello testified to being called to Ms. Francis' home on the evening of October 10, 2008, and lifting fingerprints from the glass pane of the open back window. N.T., 4/1/09, at 9-12. Detective Filippello sent the lifted fingerprints to the latent print section of the Philadelphia Police Department to be compared with fingerprints kept on record. Id. at 14-15.
Fingerprint Technician Clifford Parson testified to working in the Philadelphia Police Department for fifteen years, where he analyzed and observed crime scene prints. Id. at 17. Technician Parson explained that in this case, he received the fingerprints collected by Detective Filippello, and entered them in the automatic fingerprint identification system, where the prints came back as a positive match for a "ten print card."*fn2 Id. at 21-22. Technician Parson averred that "the unique characteristics matched. That's where you get a positive identification...what I saw is that the unique characteristics from the latent print matched the known print of [Appellant]." Id. at 24-25.
At the conclusion of the April 1, 2009 hearing, the juvenile court adjudicated Appellant delinquent on all charges and entered a disposition continuing Appellant's placement at a juvenile facility. Appellant filed a timely notice of appeal on April 17, 2009.
On December 3, 2010, a three-judge panel of this Court filed an opinion in which the majority reversed Appellant's adjudication. The Commonwealth filed an application for reargument en banc. By per curiam order on February 1, 2011, this Court granted the Commonwealth's application for reargument, withdrew its December 3, 2010 decision, directed the case to be listed before an en banc panel, and instructed the parties to refile the briefs previously filed, together with supplemental briefs, or prepare and file substituted briefs. Both parties filed substituted briefs.
Appellant disputes the admissibility of the evidence presented by the Commonwealth through the testimony of the fingerprint technician. Appellant asserts that the juvenile court improperly admitted Technician Parson's hearsay testimony. Appellant expressly presents the following issue:
Did not the [juvenile] court err in admitting at [Appellant's] adjudicatory hearing, under the rubric of "expert testimony," hearsay information establishing [Appellant's] identity (to wit, that the fingerprints on a "10 print card," which matched latent prints taken from the scene of the crime, were [Appellant's] fingerprints), where that hearsay information was not necessary to the expert's testimony, where the expert's testimony was used to bypass the otherwise applicable rules of evidence and where the expert merely functioned as a conduit for the otherwise inadmissible hearsay?
Appellant's Substituted Brief at 3.
Similarly, the Commonwealth frames the issue: Did the juvenile court act within its discretion in permitting a fingerprint examiner to offer his expert opinion that a fingerprint lifted from a window of the burglarized property was [Appellant's]?
Commonwealth Substituted Reply Brief at 1.
At the outset, we note that the admission of the fingerprint technician's hearsay testimony is the sole issue before us. We agree with the Commonwealth that "the questions of whether the fingerprint examiner's testimony was sufficient to prove [Appellant's] identity as the burglar beyond a reasonable doubt and whether [Appellant's] constitutional rights would be somehow violated by a finding that the burden of proof was met in this case are not before this Court." Commonwealth Substituted Reply Brief at 1. Citing Commonwealth v. Rolan, 964 A.2d 398, 409 (Pa. Super. 2008) and Commonwealth v. Constant, 925 A.2d 810, 824 (Pa. Super. 2007), the Commonwealth accurately notes that these issues were not raised in Appellant's original or supplemental Pa.R.A.P. 1925(b) statements, nor were they developed by Appellant in his briefs. Id. We further note that when the Commonwealth rested its case, Appellant did not make a motion for dismissal. Nor did Appellant file an optional post-dispositional motion as provided for in Pa.R.J.C.P. 520(A) ((1) "The parties shall have the right to make a post-dispositional motion. All requests for relief from the court shall be stated with specificity and particularity, and shall be consolidated in the post-dispositional motion." (2) Issues raised before or during the adjudicatory hearing shall be deemed preserved for appeal whether or not the party elects to file a post-dispositional motion on those issues.")). Accordingly, the juvenile court in its Pa.R.A.P. 1925(a) opinion did not address the issues of whether the fingerprint expert's testimony was sufficient to sustain Appellant's adjudication, or whether Appellant's constitutional rights had somehow been violated. Those issues are not properly before us.
Although Appellant has waived any challenge to the sufficiency of the evidence, we direct Appellant to Commonwealth v. Meals, 912 A.2d 213 (Pa. 2006), in which our Supreme Court affirmed the trial court's reliance on expert testimony to determine that the defendant was a sexually violent predator. Our Supreme Court in Meals found the defendant's sufficiency challenge to be meritless, and in its analysis opined that defendant's sufficiency claim was truly a weight claim. The Pennsylvania Supreme Court reasoned:
To the extent [defendant] felt that the expert's 'diagnosis' was not fully explained, did not square with accepted analyses of this disorder, or was simply erroneous, [defendant] certainly was free to introduce evidence to that effect and/or to argue to the factfinder that the Commonwealth's expert's conclusions should be discounted or ignored. But that argument would affect the weight, and not the sufficiency of the evidence.
Meals at 223-224 (citation and footnote omitted).
Similarly, Appellant in this case could have introduced evidence to contradict the fingerprint expert's evidence presented by the Commonwealth. He did not. In fact, Appellant did not avail himself of the opportunity to present any evidence on behalf of his defense. It is wellsettled that "the trier of fact, while passing on the credibility of the witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence." See In re J.M., 5 A.3d 323, 330 (Pa. Super. 2010) (citation omitted). We have explained:
For this Court to reverse the jury's verdict on weight of the evidence grounds, we must determine that the verdict is so contrary to the evidence as to 'shock one's sense of justice.' Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.
Commonwealth v. Brown, 23 A.3d 544, 557 (Pa. Super. 2011) (citations omitted). Clearly the juvenile court in this case acted within its discretion in crediting the expert testimony of Fingerprint Technician Parson. We therefore proceed to address the admission of the fingerprint technician's testimony.
Our careful review of both the record and applicable law indicates that the juvenile court properly admitted the fingerprint technician's testimony. The Commonwealth qualified Mr. Parson, a fingerprint technician, as an expert in analyzing crime scene fingerprints. N.T., 4/1/09, at 19.
Technician Parson worked for as a fingerprint expert with the Philadelphia Police Department for fifteen years, and during that time received specialized training from the Philadelphia Police, the Pennsylvania Police and the FBI. Id. at 18-19. Technician Parson testified that his job was to "analyze and observe crime scene prints." Id. at 18.
In this particular case, Technician Parson compared latent fingerprints taken from the scene of the burglary at Ms. Francis' home with a "ten print card" on file with the Philadelphia Police Department, and determined that the fingerprints taken from Ms. Francis' home belonged to Appellant. The only issue is whether the trial court abused its discretion in permitting Technician Parson to testify to an alleged hearsay statement - i.e. that Appellant's name and fingerprints were on the ten print card. We find that because Technician Parson was an expert and relied upon the hearsay statement to form his opinion, he was properly permitted to testify to the hearsay statement under Pa.R.E. 703 and 705.
The governing authority in this case is Pa.R.E. 703 and Pa.R.E. 705. In its entirety, Pa.R.E. 703 states:
Rule 703. Bases of opinion testimony by experts
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
"In Pennsylvania . . . Pa.R.E. 705 requires an expert witness to testify as to the facts or data upon which the witness's opinion is based, whether or not the facts or data would otherwise be admissible in evidence." Id., Comment; see Pa.R.E. 705 ("[T]he expert must testify as to the facts or data on which the opinion or inference is based."). "When an expert testifies about the underlying facts and data that support the expert's opinion and the evidence [is] inadmissible, the trial judge, upon request, shall instruct the jury to ...