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In re D.G.

Superior Court of Pennsylvania

April 21, 2015

IN THE INTEREST OF: D.G., A MINOR APPEAL OF: D.G

Argued,  February 24, 2015

Appeal from the Order Entered July 3, 2014, in the Court of Common Pleas of Erie County, Criminal Division at No(s): CP-25-JV-0000059-2014, CP-25-JV-0000343-2013. Before TRUCILLA, J.

Adam J. Williams, Erie, for APPELLANT.

Jonathan W. Neenan, Assistant District Attorney, Erie, for Commonwealth, APPELLEE.

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, JJ.

OPINION

Page 1092

LAZARUS, J.

D.G. appeals from the disposition order entered following his adjudication of delinquency by the Court of Common Pleas of Erie County based on the following offenses: (1) conspiracy to commit criminal trespass,[1] and (2) criminal trespass.[2] Upon review, we affirm.

The facts of this case are as follows. On August 24, 2013, at approximately midnight, Karar Al-Dafaai received a phone call from ADT Security Services, Inc., notifying him that the security alarm had gone off at his property located at 928 East Avenue in Erie. Al-Dafaai is the owner of a Stop N Go convenience store at this location. The building also contains a vacant upstairs apartment that is connected to the Stop N Go.

After receiving the call from ADT, Al-Dafaai drove directly to the property, located two blocks from his home. When he arrived, he saw two juveniles standing outside the property, whom he identified as D.G. and S.J. Upon arrival, he also observed that the building was shaking, consistent with an attempt to kick in the secure door to gain access to the Stop N Go.

After he got out of his car, Al-Dafaai engaged in a brief confrontation with the two juveniles, during which time he flagged down an approaching police car. At that time, the two juveniles fled. As they fled, Al-Dafaai noticed a third individual, Q.M., jump off the building's roof and into the adjacent alley, where D.G. and S.J. had also fled.[3]

At that time, Lieutenant Steven Goozdich of the Erie Police Department, having been waived down by Al-Dafaai and informed of the suspected robbery, approached the scene. Lieutenant Goozdich drew his weapon and entered the alley, where he saw three to four individuals coming off the roof and gathering at a fence near the end of the alley. He yelled, " police, stop," and one person went over the fence and at least one other individual ran off in the opposite direction. Q.M. stood directly in front of Lieutenant Goozdich and hesitated, deciding which way to run. Lieutenant Goozdich, with gun

Page 1093

drawn, commanded the juveniles to stop, but was only able to apprehend Q.M.

Al-Dafaai later testified that he was preparing the apartment to be rented; the barbed wire on the window to the apartment had been pulled back; and the ADT security sensors on the window had been tripped. Additionally, the door that leads into the upstairs apartment from the first floor had been kicked in. The downstairs landing had a second door that led into the Stop N Go and was secured by ADT sensors. That door had been kicked in and the sensors were jarred loose.

Subsequently, Lieutenant Goozdich put out a radio call regarding the incident. Sergeant Edward Noble received that call and within minutes, observed two individuals matching the juveniles' descriptions in a parking lot approximately one block north of the Stop N Go. Sergeant Noble detained these individuals, and Al-Dafaai identified one of them as S.J. The other individual was released.

A second nearby officer, Patrolman Jason Russell, also received the radio call in an unmarked police car, and saw a juvenile matching the description of one of the perpetrators approximately one block south of the Stop N Go. Patrolman Russell apprehended the juvenile, later determined to be D.G., observing that he was breathing heavily and sweating profusely. Al-Dafaai later positively identified D.G. as one of the individuals he had seen at the Stop N Go.

On August 28, 2013, D.G., S.J., and Q.M., were charged with criminal conspiracy to commit burglary,[4] and burglary.[5] An arraignment was held on August 30, 2013, at which time each of the juveniles denied the allegations.

On September 19, 2013, Al-Dafaai completed a restitution claim form for $1,466.00. Attached to that form were copies from his accounts book which set forth the following expenses: a $300.00 payment in cash to Kraus Hardware on August 27, 2013 for the costs of the door and frame; a $500.00 payment in cash to ADT on August 27, 2013, for the costs of the ADT alarm repair; and a $186.00 payment in cash to Kraus on August 27, 2013, for the costs of window repair.

A combined denial hearing[6] was held before the court on February 26, 2014, at which all three juveniles were represented by counsel. Following testimony and argument of counsel, the court concluded that the juveniles engaged in a conspiracy. However, the court concluded that the facts supported criminal trespass, rather than burglary. Consequently, the court made findings that the juveniles had committed acts constituting conspiracy to commit criminal trespass and criminal trespass.

Counsel for D.G. objected to the court's findings, which the court construed as an oral motion to reconsider. The court took the motion under advisement and, following the receipt of briefs and oral argument, the court denied the motion on April 4, 2014.

At a separate adjudication hearing on June 5, 2014, D.G. admitted to attempting to commit robbery by removing a wallet from a student's pants pocket at East High School.

Following a consolidated dispositional hearing on July 3, 2014, the court adjudicated D.G. delinquent and placed him at

Page 1094

the Glen Mills School. Further, the court ordered that D.G. pay restitution based on the accounting submitted by Al-Dafaai. The Court apportioned the total damages equally among the juveniles, ordering each to pay $488.67. Also, the Court's finding of restitution against D.G. was made without prejudice to allow him the opportunity to request a restitution hearing. D.G. never requested such a hearing.

D.G. then filed a timely notice of appeal on July 24, 2014. On August 12, 2014, D.G. filed a court-ordered statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).

On appeal, D.G. raises the following issues:

(1) Whether the trial court erred when it amended the allegations of delinquency to include different allegations, and such amendment was made sua sponte, at the conclusion of the ...

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