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In re K.A.T.

Superior Court of Pennsylvania

June 11, 2013

IN THE INTEREST OF: K.A.T., JR. Appellant

Appeal from the Order Entered on May 10, 2011 In the Court of Common Pleas of Allegheny County Juvenile Division at No(s): JV-10-001198

BEFORE: MUSMANNO, J., BOWES, J., and WECHT, J.

OPINION

WECHT, J.

K.A.T. ("Appellant"), a minor, appeals the adjudication of delinquency and disposition order entered in the Court of Common Pleas of Allegheny County on May 10, 2011, after Appellant was adjudicated delinquent of simple assault.[1] In this direct appeal, Appellant raises two claims of ineffective assistance of counsel, as well as a challenge to the sufficiency of the evidence. We affirm.

The juvenile court reported the salient facts of this case as follows:
Nathan Toliver resides in Coraopolis, Pennsylvania. On February 12, 2011, Mr. Toliver went to Barto's Bar on Fifth Avenue in Coraopolis where he purchased two 40[-]ounce bottles of beer to take home. He had not had any alcohol at the bar. As he was walking home, he noticed a shadow or an individual walking behind him. The individual then asked Mr. Toliver if he had a "square, " which [Mr. Toliver] understood to mean a cigarette.
There was a distance of about 23 feet between the individuals. Mr. Toliver then turned around to answer no and the other individual began walking faster. This made Mr. Toliver feel uncomfortable and therefore Mr. Toliver stood there and waited for the individual to pass. At that point, Mr. Toliver was grabbed from behind and turned around. Mr. Toliver was then only four or five inches away from the assailant's face. At that time, a light was shining on the actor's face. The assailant then pepper sprayed Mr. Toliver in the face. The assailant then started demanding "Give up the money" over and over again, getting louder each time. Mr. Toliver then began to use his beer bottles to swing at the assailant since he was unable to see because of the pepper spray. Mr. Toliver then returned to the bar and told the individuals at the bar what had happened and they escorted him to the bathroom to wash his face. Mr. Toliver called 911 from the bathroom.
When the police arrived at the scene, Mr. Toliver was still suffering symptoms from the pepper spray. He was however able to describe the assailant as a light-skinned black male, on the young side, thin and tall. Mr. Toliver was treated by the ambulance at the scene. Mr. Toliver was then escorted home by the police.
About 10 or 15 minutes after returning home, the police officers called Mr. Toliver about making an identification, this was approximately a half an hour after the incident. Once outside the station, Mr. Toliver was told the importance of being absolutely certain that the person he [identified] is the actual perpetrator. Mr. Toliver believed that he was going to be shown photos. When Mr. Toliver entered the police station, he saw one civilian male and a civilian female that appeared to be mother and son. As soon as Mr. Toliver heard the civilian male speak, he identified the male as the perpetrator. This identification was based both upon both [sic] a recognition of the male's face and voice. The male that Mr. Toliver identified that night was the same male he identified in court as [Appellant].
Officer John Michael Haring of the Coraopolis Police Department then testified. At approximately 1:03 a.m., he was sent to Barto's Bar on Fifth Avenue in Coraopolis where he encountered the victim. It was apparent that the victim had suffered some sort of aerosol spray to his face. Based upon information received from the victim, Officer Haring did locate two broken 40-ounce bottles across the street from the bar. An ambulance arrived and Officer Haring made sure the victim was treated. As part of the investigation, [a police officer] viewed surveillance video at the Uni-Mart convenience store which is in close proximity to where the incident occurred. An individual on that videotape matched the description of the perpetrator given by the victim.
About 20 to 25 minutes after the officers arrived on the scene, they received a call from dispatch regarding a witness to the incident. The witness who came forward was [Appellant]. When police saw [Appellant], they noticed that he closely resembled the description given by the victim and the person on the surveillance tape. A copy of the tape was not able to be made and was unavailable for court because it was taped over. During the interview with [Appellant], he indicated to the police that he was going to go to the Uni-Mart to purchase chocolate milk. [Appellant] indicated to the police that he was about to leave for the Uni-Mart [when] he saw an altercation between a couple of males and believes that beer bottles were thrown. After the scuffle was over, he went to the Uni-Mart to make a purchase. When he went home he changed black hoodies. [Appellant] was asked to go to the station to give a written witness statement. Outside of the station, Officer Haring [indicated] that he told Mr. Toliver that a possible suspect was there and Mr. Toliver must be 100 percent certain if he is going to make an identification. Mr. Toliver then identified [Appellant] at the station.
[Appellant] then testified. The minor indicated that he had been at home with friends when he became thirsty and was craving chocolate milk. At that point he decided to go to the Uni-Mart to purchase some milk. The minor indicated as he was about to leave the house, he heard people arguing or talking to each other and glass break. The minor also noted that it was windy and he went back inside to change into a different hooded sweatshirt. The minor then [left] the house and [did] not see anyone, the street[s] are empty. He entered the Uni-Mart and was unable to purchase the chocolate milk because he only wanted a pint and they did not have any. Afterward he continued to walk home. After arriving home, [Appellant] received a call from his boss, Richard Kuster, indicating that he had seen the minor's picture on a surveillance tape at the Uni-Mart where the police were watching the video. It was then that the minor's mother called 911 and reported what the minor had seen earlier that night. [Appellant] then admitted that he and his mother only called the police because [Appellant] was concerned that he would be implicated in the crime.
Officer Haring testified in rebuttal that he in fact saw smaller containers of chocolate milk in the Uni-Mart on the night in question. Officer Haring also stated that he did not smell any lingering odor of alcohol or pepper spray on the minor when he met him.

Trial Court Opinion ("T.C.O."), 9/28/2011, at 1-5 (citations to notes of testimony omitted).

On May 10, 2011, following a delinquency hearing, Appellant was adjudicated delinquent of simple assault.[2] Thereafter, Appellant was placed on probation, ordered to pay the costs associated with the adjudication, and directed to serve five hours of community service. Notably, no post- dispositional motions were filed.

On June 7, 2011, Appellant filed a notice of appeal. On June 9, 2011, the juvenile court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On August 3, 2011, Appellant timely complied. In response, on September 28, 2011, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Appellant raises three issues for our consideration:
1. Was prior trial counsel ineffective for failing to file a pretrial motion to suppress Toliver's pretrial identification of K.A.T., where the identification was made during a highly suggestive procedure, the equivalent of a one man lineup, and the circumstances indicated that the identification was unreliable?
2. Was prior trial counsel ineffective for failing to object to inadmissible hearsay evidence, the admission of which proved crucial in the trial court's adjudicating K.A.T. delinquent of simple assault?
3. Was the evidence presented during K.A.T.'s adjudicatory hearing sufficient for the trial court to adjudicate K.A.T. delinquent of simple assault?

Brief for Appellant at 4.

We begin with Appellant's sufficiency claim because, if successful, it would moot Appellant's ineffective assistance of counsel claims. See Commonwealth v. Yanoff, 690 A.2d 260, 263 (Pa. Super. 1997) (the proper remedy for a successful sufficiency claim is discharge, not a new trial). Appellant purports to challenge the sufficiency of the evidence presented at trial to sustain Appellant's delinquency adjudication for simple assault. Appellant concedes that "there may have been sufficient evidence that someone attempted to cause or 'intentionally, knowingly or recklessly' caus[ed] bodily injury to another, " but contends that "the Commonwealth did not prove, beyond a reasonable doubt, that [Appellant] was the perpetrator of this crime." Brief for Appellant at 31.

Appellant admits that there were two specific items of evidence offered to prove that Appellant was the perpetrator of the assault: (1) the victim's identification of Appellant at the police station; and (2) the image of an actor who fit Appellant's description in the convenience store surveillance video. Appellant contends that the victim's identification was marred by the suggestiveness of the identification procedure and that the surveillance video was not sufficiently clear to identify him. However, Appellant argues that, even if the person in the surveillance video was Appellant, that evidence was insufficient to prove that Appellant was the perpetrator of the assault. According to Appellant, that evidence merely placed Appellant at or near the scene of the crime, but did not prove beyond a reasonable doubt that Appellant committed the assault.

Appellant notes that, when Appellant met with the police shortly after the incident occurred, he did not smell of pepper spray or alcohol. The victim testified that the assailant used pepper spray to blind him, and that the victim threw beer bottles at the assailant to fend off the attack. The lack of any odor of either pepper spray or alcohol demonstrated that the Commonwealth failed to prove beyond a reasonable doubt that Appellant was the perpetrator.

Our standard of review in a sufficiency of the evidence challenge is well-settled:

In reviewing sufficiency of evidence claims, we must determine whether the evidence admitted at trial, as well as all reasonable inferences drawn therefrom, when viewed in the light most favorable to the verdict winner, are sufficient to support all the elements of the offense. Additionally, to sustain a conviction, the facts and circumstances which the Commonwealth must prove[] must be such that every essential element of the crime is established beyond a reasonable doubt. Admittedly, guilt must be based on facts and conditions proved, and not on suspicion or surmise. Entirely circumstantial evidence is sufficient so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The fact[-]finder is free to believe all, part, or none of the evidence presented at trial.

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa. Super. 2011) (internal citations omitted). In every criminal case, "[p]roof beyond a reasonable doubt of the identity of the accused as the person who committed the crime is essential to a conviction." Commonwealth v. Hickman, 309 A.2d 564, 566 (Pa. 1973). However, identification evidence "need not be positive and certain to sustain a conviction." Commonwealth v. Jones, 954 A.2d 1194, 1197 (Pa. Super. 2008). A witness may identify an alleged perpetrator from his voice alone, and the weight to be assigned to that identification is a question for the trier of fact. Jones, 954 A.2d at 1197.

Appellant focuses primarily upon the surveillance video, and ignores the remainder of the evidence. However, when viewing the evidence as a whole and in the light most favorable to the Commonwealth as verdict winner, the facts presented in the instant case establish proof beyond a ...


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