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In the Interest of: J.B.

May 8, 2013


Appeal from the Order May 18, 2012, Court of Common Pleas, Lawrence County, Criminal Division at No. 113 of 2011, JUV

The opinion of the court was delivered by: Donohue, J.



Appellant, J.B., appeals from the dispositional order imposed following his adjudication as delinquent for committing the offenses of criminal homicide, 18 Pa.C.S.A. § 2501(A), and criminal homicide of an unborn child, 18 Pa.C.S.A. § 2603(A). J.B. raises a single issue on appeal, in which he challenges the juvenile court's findings that he committed the crimes charged on the grounds that they are against the weight of the evidence. Because the evidence of record does not support certain of the juvenile court's crucial factual findings, we vacate the dispositional order and remand the case to the juvenile court for further proceedings consistent with this Opinion.

On February 20, 2009, the Pennsylvania State Police responded to a call at the residence of C.B. and K.M.H., J.B.'s father and stepmother,*fn1 in Lawrence County, Pennsylvania. The State Police found K.M.H., and her unborn male child (estimated delivery date of March 8, 2009) dead in the first floor bedroom. K.M.H. died from a shotgun wound to the back of her head, and the unborn child died of anoxia (lack of oxygen, directly resulting from the death of his mother). At approximately 3:30 a.m. on the morning of the next day, the police arrested J.B. (age 11), and on March 25, 2009, an adult criminal complaint was filed in the Court of Common Pleas of Lawrence County, charging J.B. with the two above-referenced counts of criminal homicide.

On October 6, 2009, J.B. filed a petition to transfer his case to the juvenile division. 42 Pa.C.S.A. § 6322. After evidentiary hearings, on March 29, 2010, the trial court denied the petition to transfer the case to the juvenile court. In so doing, the trial court indicated that it denied the petition in substantial part because J.B. refused to admit responsibility for committing the crimes at issue. J.B. then filed with the trial court a motion to amend its March 29, 2010 order to permit an interlocutory appeal. On May 12, 2010, the trial court did so, and on June 11, 2010, J.B. filed with this Court a petition for permission to appeal from an interlocutory order. We granted J.B.'s petition on July 27, 2010. On March 11, 2011, this Court concluded that the basis for the trial court's denial of J.B.'s section 6322 transfer petition violated his right against self-incrimination. Accordingly, we vacated the trial court's order and remanded the case for a new decertification hearing. By order dated August 23, 2011, the trial court granted J.B.'s petition and transferred his case to the juvenile court.

The juvenile court scheduled an adjudication hearing for August 24, 2011 and entered an order excluding the public from attending. Various media corporations filed petitions to intervene and open proceedings to permit their attendance, which the juvenile court denied by order dated September 23, 2011. On February 22, 2012, this Court affirmed the juvenile court's decision in a published decision. In re J.B., 39 A.3d 421 (Pa. Super. 2012).

During the pendency of the media appeal, J.B. filed a writ of habeas corpus with the juvenile court requesting his release from detention. 42 Pa.C.S.A. § 6335. The juvenile court, believing that it had no jurisdiction to enter orders during the pending appeal, denied the request. This Court subsequently remanded the case back to the juvenile court with instructions to immediately schedule and conduct a detention hearing. The juvenile court did so on April 3, 2012, at which time it decided that J.B. should remain in detention until the adjudication hearing.

The adjudication hearing took place on April 10-13, 2012. The evidence demonstrated that on the morning of February 20, 2009, K.M.H. called out from the first floor bedroom to J.B. and his stepsister, J.H. (then age 7), to tell them to get ready for the school bus, and that J.B. and J.H. left the house and ran down the driveway to catch the bus at approximately 8:13-8:14 a.m. N.T., 4/11/12, at 89. The school bus driver, Martin Gwin, testified that consistent with their normal pattern, J.B. ran about ten yards ahead of J.H. N.T., 4/10/12, at 153. Mr. Gwin did not observe anything at all unusual about the behavior or demeanor of either child as he transported them to school. Id. at 154.

Steve Cable ("Cable"), the owner of Steve Cable's Tree Service, testified that he and his crew of five arrived at the residence in three trucks at around 9:00 a.m., to continue the job, which began the prior day, of gathering firewood on the property. Id. at 14-15, 19. According to Cable, it was snowing that morning and approximately one-eighth to one-quarter of an inch of snow covered the ground. Id. at 20. Upon arrival, Cable stated that he did not observe any tire tracks in the driveway leading to the residence when his trucks arrived. Id. at 21, 35. At some point after his crew began to work, one of the workers came to him and told him that he had seen a screen door to the house open. Id. at 23. About ten minutes later, Cable saw a little girl, A.H. (then age 4 and K.M.H.'s youngest daughter), open the screen door. Id. at 24. She was crying, and when asked what was wrong, she said that her mother was dead. Id. A.H. remained inside the residence and Cable remained outside of the residence. Id. at 24-27. Cable testified that he initially called Bob Taylor, the owner/lessor of the property, but after getting no answer he called 911. Id. at 25.

Soon after calling 911, the state police returned the call and said they were having difficulty locating the address Cable had provided to them, apparently because of some confusion regarding the name of the road off of which the driveway to the residence was located. Id. at 36. Cable sent one of his workers (Gary Suchanec) to the end of the driveway to get the proper address and to wait for the police and ambulance to arrive. Id. at 37. Suchanec called Cable and provided him with the address, at which time Suchanec indicated that he could see footprints in the middle of the driveway. Id. Cable did not walk the entire length of the driveway, but he testified that he saw two sets of small footprints in the middle of the driveway between the tire tracks that his trucks had made. Id. at 38. The footprints aimed towards the road, and based upon their size, Cable assumed they were probably made by the children living at the residence going to catch the bus. Id. at 21.

Trooper Harry Gustafson and Corporal Jeremy Bowser arrived at the residence at 10:13 a.m. Id. at 45. Trooper Gustafson found K.M.H.'s body in the first floor bedroom. Id. at 49. After the crime scene had been secured, Corporal Andrew Panelle and Trooper Kenneth Markilinski took possession of six long guns stacked in one corner of the upstairs bedroom, one of which was a 20-gauge shotgun. Id. at 109-11. While making sure that the guns were unloaded (for their safety), both Corporal Panelle and Trooper Markilinski noted that the 20-gauge shotgun was the only one that had the odor of burnt gunpowder and residue in the breech -- which in their (non-expert) opinions was evidence that it had been fired within the past day. Id. at 114-15, 141-44.

Trooper Janice Wilson went to the school to interview J.B. and J.H. N.T., 4/11/12, at 61.*fn2 J.H. "didn't have much to offer about what had happened that morning." Id. at 64. She was initially upset when Trooper Wilson arrived, but calmed down when assured that she was not in trouble. Id. J.B. had earlier reported to the nurse's office with a stomachache and was asleep when Trooper Wilson arrived. Id. at 63. According to Trooper Wilson, in response to questions regarding his activities that morning, J.B. explained that the family was in the process of switching bedrooms, as his father and stepmother were going to move into the larger upstairs bedroom and he was going to move down to their first floor bedroom. Id. at 68. His clothes had been moved to the first floor bedroom, but they were not changing where they slept until the weekend. Id. Accordingly, J.B. told Trooper Wilson that he had gone down to get his clothes from the bedroom where his stepmother was sleeping, gotten his clothes for school, and changed in the bathroom. Id. After getting dressed, he and J.H. were sitting on the couch watching television when he heard his stepmother's cell phone click open or shut (suggesting that she was checking the time), and he then heard her tell them they needed to leave or they were going to be late for the bus. Id. at 70. J.B. said that he and J.H. then got up and hurried to the bus. Id. In response to questioning, J.B. also told Trooper Wilson that as they went to the bus, he had seen a "large" or "full-size" black truck near the house by the garage, but did not see any people around that morning. Id. at 66-67. J.B. could not tell if the truck was running. Id. at 66. J.B. said that he told J.H. about the black truck, but that she was too far ahead of him and probably did not hear him. Id. at 70.

Trooper Wilson interviewed J.B. again at approximately 10:00 p.m. Id. at 72. Prior to this interview, J.B.'s father informed him for the first time that K.M.H. had died, at which time he cried, but did not ask any questions. Id. J.B. told Trooper Wilson that he had seen the black truck on the way to the bus when he reached down to pick up some "fur" or "fuzz" that he had dropped. Id. at 73. J.B. said that earlier that day he had seen a white truck that was like the black truck, and that he was told that the white truck was an S-10. Id. at 75. J.B. further indicated that he had seen a person wearing a white hat "ducking over" inside the black truck, and that its lights were on. Id. Trooper Wilson asked J.B. about his guns, at which time J.B. said that he had two, one of which was a 20-gauge shotgun that he only shoots when outside. Id. at 77. J.B. indicated that he had shot the 20-gauge shotgun within the past month, but not that morning. Id. at 77-78.

At 3:30 a.m. the next morning, the police arrested J.B. and charged him with two counts of criminal homicide. Upon J.B.'s arrest, the shirt, pants, tennis shoes, and winter coat he had worn that day were collected. N.T., 4/10/12, at 217-218. The police provided these four items to Elana Somple ("Somple"), the manager of the forensic science department at R.J. Lee Group, an independent laboratory. N.T., 4/11/12, at 5-6, 14. Somple tested two of these items, the shirt and pants, for the presence of gunshot residue.*fn3 Id. at 14. On the right side of the shirt (including the entire area from the top seam to the bottom as well as the sleeve), Somple testified that she found one particle of gunshot residue. Id. at 16. Similarly, on the left side of the pants (including the entire area from the waistband to the bottom cuff), Somple testified that she found a single particle of gunshot residue. Id. at 18. Other than to indicate the left or right side of the garment, Somple could not say where specifically the single particles were found. Id. at 16. Somple offered no opinion regarding how the two particles were deposited on the garments, indicating that it could have occurred in either of three ways: (1) the person discharged a firearm, (2) the person was in close proximity to someone who discharged a firearm, or (3) the person came into contact with something that had gunshot residue on it. Id. at 15-16.

On February 21, 2009, the day after the discovery of the shooting, Sergeant Daniel Brooks participated in a search of the exterior of the residence looking for shotgun shells or other potential evidence. N.T., 4/10/12, at 195, 207. While other officers found rusty casings in the yard, Sergeant Brooks found an un-weathered "Federal 20-gauge No. 6 shot" shell casing in what he described as "pristine" condition. Id. at 195-96, 201. Sergeant Brooks located this shell casing about 100 yards from the residence beside a fence running parallel along the right of the driveway, under leaves covered with ice and snow. Id. at 196-97, 210. Firearms and ballistics expert David Burlingame ("Burlingame") testified that the spent shell found by Sergeant Brooks had been fired by the 20-gauge shotgun found inside the residence. Id. at 40-41. Burlingame also testified that he examined 27 shotgun pellets removed from K.M.H.'s skull during the autopsy, N.T., 4/10/12, at 160, and that these pellets were consistent in size, shape, weight, and material as pellets found in 16 unspent 20-gauge shells found in the armoire of the first floor bedroom of the residence. N.T., 4/11/12, at 37, 44-45; N.T., 4/10/12, at 103-106.

Dr. James Smith ("Dr. Smith"), a forensic pathologist, opined that the shotgun was very near, or perhaps even touching, the back of K.M.H.'s skull when it was fired. Id. at 168. Because of the upward angle at which the weapon was fired, however, Dr. Smith opined that one would "not necessarily" expect to find blood or DNA tissue (commonly referred to as "blowback") on the barrel of the gun. Id. at 170-72. Corporal Jeffrey Martin testified that testing revealed no blood or DNA material on the inside of the barrel of the 20-gauge shotgun found in the upstairs bedroom, and no blood was found anywhere on J.B.'s clothing. N.T., ...

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