J-A01018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

C.W., JUVENILE

Appellant No. 3470 EDA 2014

Appeal from the Dispositional Order November 5, 2014

In the Court of Common Pleas of Lehigh County

Juvenile Division at No(s): CP-39-JV-0000302-2014

SID NO. 41678445

BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.: FILED JUNE 27, 2016

C.W., a minor,1appeals from the dispositional order entered November 

5, 2014, by the Lehigh County Court of Common Pleas, Juvenile Division. 

The juvenile court adjudicated C.W. delinquent on charges of harassment 

and ethnic intimidation,2and entered a dispositional order placing C.W. on 

official probation. On appeal, C.W. argues the juvenile court erred in finding 

that he knowingly, intelligently, and voluntarily waived his Miranda3rights, 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1

 C.W.’s date of birth is August 22, 1999.

2

 18 Pa.C.S. §§ 2709(a)(1) and 2710, respectively. 

3

 Miranda v. Arizona, 384 U.S. 436 (1966).
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and there was insufficient evidence to support his adjudications for 

harassment and ethnic intimidation. For the reasons that follow, we affirm.

The trial court set forth the facts as follows:

On April 24, 2014, at approximately 1 p.m., N.G., a 12th

grader at William Allen High School, located in Allentown, Lehigh 

County, Pennsylvania, was seated at a lunchroom table in the 

12th grade cafeteria during a Study Hall. N.G. was seated with 

two friends, G.S. and G.Z. By way of background, N.G. and G.Z. 

are Caucasian and G.S. is Hispanic. The three boys were playing 

a card game. A short time later, [C.W.] and his two friends, F.R. 

and J.W., entered the room and started to congregate near 

where N.G. and his friends were sitting. The entire interaction 

was captured on video, which the Court was able to review at 

the time of the Adjudicatory Hearing.

The video begins with F.R. operating the camera and J.W. 

describing the video as “Smack Cam Part 3.” F.R. trains the 

camera on an Allen High School security guard, but then focuses 

the camera on N.G. and his table. Thereafter, F.R. directs J.W. 

to “mop his shit” and J.W. smacks N.G. on the back of the head, 

causing N.G. to turn around and look in the direction from where 

the smack came. At the time of the Hearing, N.G. testified that 

he did not feel pain and that he wanted to avoid a confrontation. 

Therefore, N.G. turned back around and continued to try to 

concentrate on the cards he was shuffling.

After smacking N.G., F.R. turned the camera on himself 

and declared that they “mopped that shit.” J.W. is next seen in 

the corner of the cafeteria and F.R. handed the video camera to 

[C.W.] to continue to film the exchange between J.W., F.R. and 

N.G.

F.R. again approaches N.G. from behind and began to run 

his fingers through N.G.’s hair and to speak with N.G. N.G. 

recalled that F.R. stated that N.G.’s hair was pretty smooth and 

that he could be F.R.’s daughter. [C.W.] is clearly heard 

laughing in the background of the video as he films F.R. fondling 

N.G.’s hair. F.R. and J.W. then asked G.Z. to use his cellular 

telephone to call F.R.’s mother. G.Z. says no, stating that there 

was not a lot of battery power left on the telephone. J.W. then 

told him that he is making up excuses and that there is power on 
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the telephone. While filming the exchange, [C.W.] continues to 

giggle, and then to moan/sigh. [C.W.] uses the zoom function 

on the camera to zoom in and out on N.G. and G.Z.

[C.W.] then sits down at the table with N.G., G.Z., and 

G.S., handing the video camera back to F.R. to continue to film 

the exchange. F.R. films G.Z., calling him a “pink ass nigger.”

On April 25, 2014, Detective Bill Williams of the Allentown 

Police Department went to William Allen High School to 

investigate what had transpired at the school the day before. A 

video had been posted to F.R.’s Facebook page and 

administration officials had viewed the video and summoned the 

police. Detective Williams viewed the video and through 

investigation, was able to determine the identity of the juveniles 

seen on the video. 

When he arrived at school on April 25, 2014, [C.W.] was 

summoned to the Principal’s Office at the high school. There, he 

was told that he would not be permitted to leave the office for 

any purpose until he gave a written account of the incident of 

the previous day. In the office were the Assistant Principal, a 

school security office and a uniformed member of the Allentown 

Police Department. Ultimately, [C.W.] wrote a statement, 

implicating himself in the incident involving N.G., G.Z. and G.S.

[C.W.]’s mother eventually arrived at school. She and 

[C.W.] were told that they needed to go to the Allentown Police 

Department to talk about the incident in the cafeteria. They 

were transported by a uniformed officer to the police 

department. After issuing Miranda warnings to [C.W.], in the 

presence of his mother, [C.W.] gave a statement where he 

admitted to knowing that F.R. and J.W. had approached N.G., 

G.Z. and G.S. because of their race, recording the Smack Cam 

incident, and provoking the situation.

Trial Court Opinion, 6/5/2015, at 3-5.

On June 10, 2014, a petition alleging delinquency was filed, charging 

C.W. with ethnic intimidation and harassment. On August 14, 2014, C.W.’s 

counsel made an oral motion to suppress and a suppression hearing was 
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held before a juvenile master. On September 8, 2014, the juvenile master 

submitted her recommendation that the motion to suppress be denied. On 

September 9, 2014, the juvenile court adopted the recommendation as an 

order of the court. No challenge to the master’s recommendation was filed 

pursuant to Pa.R.J.C.P. 192.4

The matter proceeded to an adjudication hearing on October 15, 

2014.5 At the conclusion of the hearing, both charges were sustained. On 

November 5, 2014, C.W. was placed on official probation.6 This appeal 

follows.

In C.W.’s first argument, he claims the juvenile court erred by failing 

to suppress his custodial statements7 because it was his mother who waived 

his Miranda rights, and not C.W. Specifically, he states, “There is not a 

____________________________________________

4

 Rule 192 provides, in pertinent part: “Time limitation. A party may 

challenge the master’s recommendation by filing a motion with the clerk of 

courts within three days of receipt of the recommendation. The motion shall 

request a rehearing by the judge and aver reasons for the challenge.” 

Pa.R.J.C.P. 192(a).

5

 All three juveniles were tried together.

6

 C.W. was permitted to remain at home under the care and responsibility 

of his mother.

7

 The juvenile court noted that at the conclusion of the suppression hearing, 

“counsel for [C.W.] and the Commonwealth agreed to the admissibility of 

[C.W.’s] statement made at the school. Therefore, the writings later 

submitted to [the master] for her consideration of the [m]otion only 

addressed the oral and written statements made at police headquarters.” 

Juvenile Court Opinion, 6/5/2015, at 6.
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single, reported Pennsylvania case that addresses the precise question of 

whether or not a parent has the authority to waive a juvenile’s constitutional 

right to be free from self-incrimination in the context of custodial 

interrogation.” C.W.’s Brief at 9. Relying on the Juvenile Act, 42 Pa.C.S. § 

6301 et seq., C.W. asserts the Pennsylvania Legislature did not intend to 

allow parental waivers generally. Id. Moreover, he argues, 

[E]very single case – federal or state – that has examined a 

juvenile Miranda waiver has used a test that examines the 

juvenile’s competency. See Com. v. Harvey, 571 Pa. 533, 547 

(2002) (When looking at the confession of a juvenile, the court 

must consider the juvenile’s age, experience and sophistication 

and whether an interested adult was present.). If a parent could 

waive the juvenile’s Miranda rights, this test would either be 

unnecessary or would be supplemented by a similar evaluation 

of the “interested adult.” 

Id. at 11. C.W. contends the Commonwealth did not present any evidence 

as to his competency. Id.

With respect to this issue, we are guided by the following principles:

Our standard of review in considering an order denying a 

suppression motion is as follows:

An appellate court may consider only the Commonwealth’s 

evidence and so much of the evidence for the defense as 

remains uncontradicted when read in the context of the 

record as a whole. Where the record supports the factual 

findings of the suppression court, the appellate court is 

bound by those facts and may reverse only if the legal 

conclusions drawn therefrom are in error. It is also well 

settled that the appellate court is not bound by the 

suppression court’s conclusions of law. However, 

[w]hether a confession is constitutionally admissible is a 

question of law and subject to plenary review.
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Thus, this Court does not, nor is it required to, defer to the 

suppression court’s legal conclusions that a confession or 

Miranda waiver was knowing or voluntary. Instead, we 

examine the record to determine if it supports the 

suppression court’s findings of fact and if those facts 

support the conclusion that, as a matter of law, [the 

juvenile] knowingly and intelligently waived his Miranda

rights.

[Commonwealth v. Knox, 50 A.3d 749, 756-757 (Pa. Super. 

2012)] (citations and quotations omitted).

With regard to a juvenile waiving his Miranda rights, we 

preliminarily note:

Regardless of whether a waiver of Miranda is voluntary, 

the Commonwealth must prove by a preponderance of the 

evidence that the waiver is also knowing and intelligent.

Miranda holds that “[t]he [juvenile] may waive 

effectuation” of the rights conveyed in the warnings 

“provided the waiver is made voluntarily, knowingly and 

intelligently.” The inquiry has two distinct dimensions. 

First, the relinquishment of the right must have been 

voluntary in the sense that it was the product of a free and 

deliberate choice rather than intimidation, coercion or 

deception. Second, the waiver must have been made with 

a full awareness both of the nature of the right being 

abandoned and the consequences of the decision to 

abandon it. Only if the “totality of the circumstances 

surrounding the interrogation” reveals both an uncoerced 

choice and the requisite level of comprehension may a 

court properly conclude that Miranda rights have been 

waived.

A determination of whether a juvenile knowingly waived 

his Miranda rights and made a voluntary confession is to 

be based on a consideration of the totality of the 

circumstances, including a consideration of the juvenile’s 

age, experience, comprehension, and the presence or 

absence of an interested adult. In examining the totality 

of circumstances, we also consider: (1) the duration and 

means of an interrogation; (2) the defendant’s physical 

and psychological state; (3) the conditions attendant to 
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the detention; (4) the attitude of the interrogator; and (5) 

“any and all other factors that could drain a person’s ability 

to withstand suggestion and coercion.” 

...

Knox, 50 A.3d at 756-757 (quotations and citations omitted) 

(italics in original).

In re V.C., 66 A.3d 341, 350-351 (Pa. Super. 2013).

Additionally, with respect waiver, we note:

The basic precepts regarding what constitutes a sufficient waiver 

of Miranda rights have been defined through a line of cases 

beginning with Commonwealth v. Bussey, 486 Pa. 221, 404 

A.2d 1309, 1314 (Pa. 1979) (plurality opinion). In that plurality 

opinion, our Supreme Court rejected the more lenient Federal 

constitutional rule that a defendant can implicitly waive his 

Miranda rights, instead holding that “an explicit waiver is a 

mandatory requirement.” Id. at 1314 (emphasis added); See 

also North Carolina v. Butler, 441 U.S. 369, 99 S. Ct. 1755, 

60 L. Ed. 2d 286 (1979) (holding that under Federal 

constitutional law, an implicit waiver of Miranda rights could be 

found where an accused expresses an understanding of his 

rights and gives a statement without expressly waiving the 

same). Our Supreme Court elaborated that an “explicit waiver” 

meant “an outward manifestation of a waiver such as an oral, 

written or physical manifestation.” Id. at 1314 n. 11.

In Commonwealth v. Hughes, 536 Pa. 355, 639 A.2d 763 (Pa. 

1994), the Court applied Bussey without acknowledging its 

limited precedential value as a plurality decision. There, the 

Court found that the defendant had “explicitly waived” his 

Miranda rights by “clearly and unequivocally” indicating that he 

understood his rights and then responding to the officer’s 

questions. Id. at 770. In other words, the defendant’s conduct 

“clearly manifested an intent to waive his rights.” Id. Similarly, 

in Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (Pa. 

2003), our Supreme Court held that the defendant’s twice 

stating he understood his Miranda rights after they were read to 

him, and answering questions immediately thereafter, 

sufficiently “manifested the intent to waive his rights.” Id. at 

844 n. 13. Finally, in [Commonwealth v. Baez, 21 A.3d 1280 
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(Pa. Super. 2011)], this Court relied on all of the above-cited 

Supreme Court cases in concluding that the defendant had 

sufficiently manifested his intent to waive his Miranda rights 

where those rights were read to him, he indicated one time that 

he understood them, and then he answered the questions asked 

by police. Baez, 21 A.3d at 1286.

Commonwealth v. Cohen, 53 A.3d 882, 886 (Pa. Super. 2012) (footnote 

omitted).

Lastly, “the per se requirement of the presence of an interested adult 

during a police interview of a juvenile is no longer required. Nevertheless, it 

remains one factor in determining the voluntariness of a juvenile’s waiver of 

his Miranda rights.” In the Interest of T.B., 11 A.3d 500, 507 (Pa. Super. 

2010). Moreover, in Commonwealth v. Starkes, 335 A.2d 698 (Pa. 

1975), which both the juvenile master and juvenile court relied on, the 

Pennsylvania Supreme Court stated:

Where an informed adult is present the inequality of the position 

of the accused and police is to some extent neutralized and due 

process satisfied. However, where the adult is ignorant of the 

constitutional rights that surround a suspect in a criminal case 

and exerts his or her influence upon the minor in reaching the 

decision, it is clear that due process is offended. An uninformed 

adult present during custodial interrogation presents an even 

greater liability. The minor in such a situation is given the 

illusion of protection, but is in fact forced to rely upon one who is 

incapable of providing the advice and counsel needed in such a 

situation.

Unless we require police officers to also advise parents, who are 

in the position to counsel minor suspects during custodial 

interrogation, we will not only fail to assure the full benefits 

sought to be attained by this type of counseling but we will also 

increase the likelihood that the suspect will be misinformed as to 

his rights.
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Commonwealth v. Starkes, 335 A.2d 698, 703 (Pa. 1975) (footnote 

omitted).

Here, in finding C.W. did not invoke his Miranda rights prior to 

speaking with the detectives, the juvenile court found the following:

In the case at bar, [C.W.] was fourteen (14) years old at 

the time of the interview and was in the 9th grade at William 

Allen High School. On April 25, 2014, [C.W.] was summoned to 

the principal’s office. At some point in time later, [C.W.]’s 

mother, Keyanda Pierce, arrived at the school and was informed 

that she and her son had to report to the police station to be 

interviewed. [C.W.] was not told that he was free to leave or 

that he could refuse to report to the police station. Ms. Pierce 

and [C.W.] were escorted to the police station by a uniformed 

officer.

Upon arrival at the police station, Ms. Pierce and [C.W.] 

were seated in an unlocked interview room, but were not 

informed that they could leave either the room or the police 

department. At approximately 2:05 p.m., Detective Williams 

began his interview with [C.W.]. Ms. Pierce and [C.W.] 

consented to having the interview audio recorded.

The detectives explained to [C.W.] that he wished to get 

some background information and explained the criminal nature 

of the investigation. Thereafter, Detective Williams read [C.W.], 

the presence of his mother, his Miranda rights. Detective 

Williams asked [C.W.] if he understood his rights and [C.W.] 

confirmed that he did. Detective Williams turned off the audio 

recording and allowed Ms. Pierce and [C.W.] to speak privately.

No testimony was presented as to what was discussed 

between [C.W.] and his mother. When Detective Williams 

returned to the room, he asked if they had made their decision 

as to whether they wished to speak to him. He received an 

affirmative response from [C.W.]’s mother and the substantive 

portion of the interview began. [C.W.] did not specifically waive 

his right to remain silent either orally or by executing a written 

waiver. However, he never indicated that he did not want to 

speak with Detective Williams and did, in fact, give oral 

statements to the detective during the interview.
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The interview lasted approximately one hour and forty 

minutes. Ms. Pierce was present the entire time and was 

present when [C.W.] penned a written statement after he spoke 

with the detective. [C.W.], Ms. Pierce, and the detective signed 

the written statement. Detective Williams testified that he was 

dressed in plain clothes and did not use any physical, verbal or 

psychological intimidation during the interview and did not 

coerce or force [C.W.] to speak to him or to provide a written 

statement.

Based on the evidence presented at the Suppression 

Hearing on August 14, 2014, we believe that [the juvenile 

master’s] decision to deny suppression of [C.W.]’s statements to 

Detective Williams was correct. [C.W.], age 14, appeared to be 

of normal intelligence and gave responsive answers to the 

detective.2 His mother was present during the entire process 

and no evidence of psychological or physical abuse was 

presented. [C.W.] himself testified that he was not threatened 

to give any statements or to talk with the detective. [C.W.] and 

his mother were informed of [C.W.]’s Miranda rights and were 

provided an opportunity to discuss those rights in private. See 

Commonwealth v. Waters, 483 A.2d 855, 859 (Pa. Super. 

1984). Further we agree that Ms. Pierce acted as an interested 

adult on behalf of [C.W.]. Though she may have been angry and 

frustrated with the actions of [C.W.], such disposition does not 

render her uninterested. See Commonwealth v. 

Laudenberger, 715 A.2d 1156, 1159 (Pa. Super. 1998) 

(determining that “the fact that appellant’s mother was upset 

with him is as indicative of concern as it is of disinterest.”).

_____________________

2

 Although counsel for [C.W.] argued that [C.W.] 

possessed below level intelligence, no evidence was 

presented to substantiate that argument. As highlighted in 

the Commonwealth’s Letter Brief, no intelligence testing 

results, school performance records or education 

plans/placement records were submitted to [the juvenile 

master] for her consideration. Defense counsel suggested 

that [C.W.] demonstrated below average intelligence when 

he did not know his social security number and made a 

minor mistake reciting his address during his interview. 

The Commonwealth highlighted that [C.W.] did, in fact, 

correctly state his full name, age, birth date, height, 
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weight, and city of birth. We do not believe that a minor 

mistake and unawareness of a social security number 

equates to below average intelligence in a 14 year old. 

Furthermore, Detective Williams testified that [C.W.] 

appeared to understand the questions posed by the 

detective and gave appropriate answers to those questions 

during the interview.

_____________________

While it is true that [C.W.]’s mother indicated their desire 

to speak with the police, and [C.W.] himself did not, evidence 

was presented that [he] answered questions during the interview 

and did not give any indication to Detective Williams that he 

either wished to speak to an attorney, wished to stop the 

interview, or refused to answer any questions posed to him by 

the detective. Pursuant to Commonwealth v. Marrero, 687 

A.2d 1102, 1106 (Pa. 1996), “where a defendant neither 

explicitly invokes his Miranda rights nor declines to answer 

questions asked of him, there is no invocation of those rights.” 

(citing Commonwealth v. Beavers, 492 Pa. 522, 532, 424 

A.2d 1313, 1318 (1981)). We do not believe that [C.W.]’s 

actions constituted an invocation of his Miranda rights. 

Juvenile Court Opinion, 6/5/2015, at 8-11.

We agree with the juvenile court’s well-reasoned decision. Based on 

the record, C.W.’s conduct, in conjunction with his mother’s actions, “clearly 

manifested an intent to waive his rights[.]” Cohen, 53 A.3d at 886. We 

emphasize the following factors: (1) C.W. consented to having the interview 

audio-recorded; (2) the officer read C.W. his Miranda rights and C.W. 

indicated that he understood them; (3) C.W. was given time to speak with 

his mother privately before answering any questions; (4) although his 

mother indicated he was ready to speak, C.W. did not indicate that he did 

not want to speak with the officer; (5) C.W. did give an oral statement to 

police; and (6) C.W. provided a written statement as well. As such, we 
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conclude C.W.’s conduct manifested his understanding of his Miranda

rights, and he validly waived the same by speaking with the interrogating 

officer. C.W.’s argument that he, himself, did not explicitly waive his rights, 

but rather it was his mother,8 does not persuade us otherwise. Further, in 

accordance with Marrero, supra, and Beavers, supra, C.W. never 

attempted to invoked his Fifth Amendment privilege when he began to speak 

freely with the officer and never failed to respond to a question. Therefore, 

we find no abuse of discretion in this regard, and the juvenile court did not 

err in denying his motion to suppress.

In C.W.’s next issue, he claims the juvenile court erred in finding he 

was an accomplice to harassment under 18 Pa.C.S. § 2709(a)(1).9 C.W.’s 

Brief at 12. First, C.W. contends his mere presence at the scene does not 

make him an accomplice. Id. at 13. Second, he argues that his filming of 

____________________________________________

8

 Moreover, we note his mother’s presence was just one factor to consider 

in assessing the validity of his waiver.

9

 With respect to the harassment offense, the juvenile court indicated the 

June 10, 2014, petition alleging delinquency as well as Exhibit A (Offenses 

Alleged on the Juvenile Petition) of the October 15, 2014, adjudicatory 

hearing order pertain to harassment under Subsection 2709(a)(3) (“engages 

in a course of conduct or repeatedly commits acts which serve no legitimate 

purpose”). Juvenile Court Opinion, 6/5/2015, at 1 n.1. While the 

Commonwealth did not move to amend the subsection, both parties and the 

juvenile court proceeded with the hearing and ultimate adjudication as if 

C.W. was charged with Subsection 2709(a)(1). Id. Accordingly, because 

there was no surprise during the adjudication proceeding and C.W. does not 

raise any prejudice argument with respect to the apparent scrivener’s error 

on appeal, we will treat the matter as though C.W. was adjudicated pursuant 

to Subsection 2709(a)(1).
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the incident does not make him an accomplice because he did not initiate 

the attack and he was not the initial recorder. Id. Moreover, C.W. states, 

“No evidence was presented that [he] was involved in that posting or that it 

was viewable on any of [his] social media sites.” Id. Lastly, he alleges he 

did not make any statements inciting or encouraging his co-defendants to 

act. Id. at 14.

“In reviewing the sufficiency of the evidence, we consider 

whether the evidence presented at trial, and all reasonable 

inferences drawn therefrom, viewed in a light most favorable to 

the Commonwealth as the verdict winner, support the jury’s 

verdict beyond a reasonable doubt.” Commonwealth v. 

Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. 

denied, Patterson v. Pennsylvania, 135 S. Ct. 1400, 191 L. 

Ed. 2d 373, 2015 U.S. LEXIS 1333, 2015 WL 731963 (U.S. 

2015). “The Commonwealth can meet its burden by wholly 

circumstantial evidence and any doubt about the defendant’s 

guilt is to be resolved by the fact finder unless the evidence is so 

weak and inconclusive that, as a matter of law, no probability of 

fact can be drawn from the combined circumstances.” 

Commonwealth v. Watley, 2013 PA Super 303, 81 A.3d 108, 

113 (Pa. Super. 2013) (en banc) (internal quotation marks and 

citation omitted), appeal denied, 95 A.3d 277 (Pa. 2014). As an 

appellate court, we must review “the entire record ... and all 

evidence actually received[.]” Id. (internal quotation marks and 

citation omitted). “[T]he trier of fact while passing upon the 

credibility of witnesses and the weight of the evidence produced 

is free to believe all, part or none of the evidence.” 

Commonwealth v. Kearney, 2014 PA Super 97, 92 A.3d 51, 

64 (Pa. Super. 2014) (citation omitted), appeal denied, 101 A.3d 

102 (Pa. 2014). “Because evidentiary sufficiency is a question of 

law, our standard of review is de novo and our scope of review is 

plenary.” Commonwealth v. Diamond, 623 Pa. 475, 83 A.3d 

119, 126 (Pa. 2013) (citation omitted), cert. denied, Diamond 

v. Pennsylvania, 135 S. Ct. 145, 190 L. Ed. 2d 107 (2014).

In re C.R., 113 A.3d 328, 333-334 (Pa. Super. 2015).

The offense of harassment is defined, in relevant part, as follows: 
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A person commits the crime of harassment when, with intent to 

harass, annoy or alarm another, the person:

(1) strikes, shoves, kicks or otherwise subjects the other 

person to physical contact, or attempts or threatens to do 

the same[.]

18 Pa.C.S. § 2709(a)(1). In order to meet its burden of proof under this 

section, the Commonwealth must “prove [the] appellant had the intent to 

harass, annoy or alarm.” Commonwealth v. Wheaton, 598 A.2d 1017, 

1020 (Pa. Super. 1991). “Anything less than a showing of intent is 

insufficient.” Id. (citation omitted). “An intent to harass may be inferred 

from the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 

719, 721 (Pa. Super. 2013) (citation omitted).

C.W. was found to be an accomplice to the harassment charge 

pursuant to 18 Pa.C.S § 306, which provides, in pertinent part:

§ 306. Liability for conduct of another; complicity

(a) General rule.—A person is guilty of an offense if it is 

committed by his own conduct or by the conduct of another 

person for which he is legally accountable, or both.

...

(c) Accomplice defined.—A person is an accomplice of another 

person in the commission of an offense if:

(1) with the intent of promoting or facilitating the 

commission of the offense, he:

...

(ii) aids or agrees or attempts to aid such other 

person in planning or committing it[.]
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18 Pa.C.S. § 306.

Here, the evidence presented at the adjudication hearing, including the 

video at issue, established that C.W. and his two co-defendants entered the 

cafeteria together. They congregated near the table where the victim and 

his two friends were playing cards. One co-defendant, F.R., operated the 

camera, announced the video they were making was called “Smack Cam 

Part 3,” and told the second co-defendant, J.W., to hit the victim’s head. 

J.W. then walked up to the victim from behind and smacked him on the back 

of the head. F.R. handed the camera to C.W. to continue filming the 

incident. While C.W. filmed, F.R. ran his hand through the victim’s hair, 

commented on its smoothness, and said the victim could be his daughter. 

F.R. tried to procure the phone of the victim’s friend to call his mother. 

During the filming, C.W. is heard giggling, moaning, and sighing. C.W. then 

gave the camera to F.R., who continued filming and made a derogatory 

comment toward the victim’s friend. 

As provided above, the totality of the evidence presented in the matter 

at issue, viewed in the light most favorable to the Commonwealth, 

establishes that C.W. acted as an accomplice in committing the harassment 

offense. He entered the cafeteria with his two co-defendants, he stood by as 

F.R. smacked or struck the victim on the back of the head, and he also took 

part in filming the incident. F.R.’s intent to harass can be established by 

circumstantial evidence, in which he interacted with the victim and struck 
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him with the purpose of annoying him. See 18 Pa.C.S. § 2709(a)(1); see 

also Wheaton, supra. Moreover, C.W. was not merely present at the 

scene as his actions demonstrated an intent to aid F.R. in committing the 

offense. See Pa.C.S. § 306. Likewise, the fact that he did not engage in 

any activity regarding the uploading of the video to social media is of no 

consequence. It is the juveniles’ actions at the time of the incident that is 

the focus of our inquiry. Therefore, C.W. is criminally responsible for the 

acts of his co-defendants, and he was properly adjudicated of harassment.

In C.W.’s final argument, he claims the juvenile court erred in finding 

the Commonwealth proved he was an accomplice to the offense of ethnic 

intimidation under Section 2710. See C.W.’s Brief at 14. He notes, “There 

are no reported cases addressing accomplice liability for ethnic intimidation, 

and this Court has never upheld a conviction for ethnic intimidation in the 

absence of either extreme violence or an ongoing course of conduct.” Id. at 

15. Moreover, C.W. asserts case law has demonstrated that “a person does 

not commit ethnic intimidation simply by using an isolated racial slur during 

the commission of an offense; more is needed to demonstrate the 

requirement of hatred.” Id. at 16. Lastly, he contends:

[T]he Commonwealth presented no evidence that [C.W.] acted 

with the intent to promote or aid that offense, as is required to 

be an accomplice under Section 306. Ethnic intimidation is not a 

result-based offense; it is not concerned with the outcome of 

prohibited conduct. Rather, it is an intent-based offense 

concerned only with why some prohibited conduct occurred. It is 

an offense committed, or not committed, solely within the heart 

and mind of a particular actor. In adjudicating [C.W.] as an 
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accomplice to ethnic intimidation, the Court necessarily found 

that he specifically intended to promote or facilitate the offense 

of ethnic intimidation, and further he took or attempted some 

action in furtherance of that offense. In so finding, the Court 

must also have found that [C.W.] was aware of, and supported, 

F.R.’s internal motivation and racial animus. The Commonwealth 

simply presented no evidence from which that finding can be 

reasonably inferred.

Id. at 16-17.

Keeping our standard of review in mind with respect to sufficiency of 

the evidence, we note the following. The offense of ethnic intimidation is 

defined as:

A person commits the offense of ethnic intimidation if, with 

malicious intention toward the race, color, religion or national 

origin of another individual or group of individuals, he commits 

an offense under any other provision of this article or under 

Chapter 33 (relating to arson, criminal mischief and other 

property destruction) exclusive of section 3307 (relating to 

institutional vandalism) or under section 3503 (relating to 

criminal trespass) with respect to such individual or his or her 

property or with respect to one or more members of such group 

or to their property.

18 Pa.C.S. § 2710(a).10 “Malicious intention,” under this section, “means 

the intention to commit any act, the commission of which is a necessary 

element of any offense referred to in subsection (a) motivated by hatred 

____________________________________________

10 “Ethnic intimidation is by its explicit terms a contingent crime, proof of 

which is dependent upon the establishment of a predicate crime.” 

Commonwealth v. Magliocco, 806 A.2d 1280, 1285 (Pa. Super. 2002). 

As indicated above, the juvenile court found that C.W. committed the 

predicate offense of harassment. 18 Pa.C.S. § 2709(a)(1).
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toward the race, color, religion or national origin of another individual or 

group of individuals.” 18 Pa.C.S. § 2710(c).

Our Courts have had limited opportunity to apply [S]ection 

2710. Nevertheless, our decisions suggest that “malicious 

intention” as required by the language of [S]ection 2710(c) may 

be found to exist only where the circumstances establish that the 

defendant was motivated by animus toward the victim’s race or 

ethnicity and targeted the victim expressly on that basis. 

Commonwealth v. Sinnott, 976 A.2d 1184, 1189-1190 (Pa. Super. 2009).

In finding there was sufficient evidence to support the charge of ethnic 

intimidation, the juvenile court opined:

There are a limited number of decisions by the appellate 

courts pertaining to ethnic intimidation. In Commonwealth v. 

Rink, 574 A.2d 1078 (Pa. Super. 1990), a conviction of ethnic 

intimidation was upheld where “the defendant participated with a 

group of teenagers in the beating of a black male in front of the 

black male’s residence. During the incident, the defendant was 

heard urging the group to “kill the nigger; get him.” In re: 

M.J.M.[,858 A.2d 1259, 1263-1264 (Pa. Super. 2004)] (citing 

Rink at 1080). The defendant also punched the victim’s wife 

and called her “bitch” and “nigger.” Id. The Superior Court 

affirmed the decision of the lower court, determining that the 

remarks were racially motivated and not the result of 

emotionally charged behavior. In re: M.J.M., at 1263-1264 

(citing Rink at 1081).

In Commonwealth v. Ferino, 640 A.2d 934, 935 (Pa. 

Super. 1994), however, the Superior Court determined that 

shouting, “I’m going to kill you, you f—king nigger” immediately 

prior to firing a gun at the victims (one black and one white) 

[]did not constitute sufficient evidence that racial prejudice was 

the [“]underlying cause for the prohibited behavior.” Id. at 938. 

The Court explained that “the [defendant’s] conduct was isolated 

in nature, brief in its execution and unattended by any trappings 

consistent with a finding that the terroristic threat [the predicate 

crime] had an origin of malicious intent ‘motivated by a hatred 

toward race, color ... or national origin’ of the victim.” Id.
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In Commonwealth v. Sinnott, 30 A.3d 1105 (Pa. 2011), 

the Supreme Court of Pennsylvania was called upon to 

determine “[w]hether, to prove ethnic intimidation pursuant to 

18 Pa.C.S. § 2710, the Commonwealth must prove the 

defendant targeted the victim solely based on the victim’s race, 

color, religion, or national origin.” Id. at 1107. In that case, the 

victim left her mother’s home to investigate screaming and 

cursing that she heard outside. Outside, the victim encountered 

the defendant, “a tenant and employee of her father, throwing 

power tools her father had given him against the concrete 

steps.” 

When [the victim] asked [the defendant] what was 

wrong, he said her father cheated him, he was going to 

take every house her father owned, and then told her, 

“[Y]ou, M-F’ers, are going to have to go back to Mexico, 

you wetbacks.” He also called [the victim] a “fucking 

bitch” and “fucking whore.” [The victim] told [the 

defendant that] she was not Mexican, but Puerto Rican, 

and therefore had as much right to be in the United States 

as he did; [the defendant] replied, “No you don’t, you 

wetback, go back to the Alamo.” [The victim] testified 

[the defendant] kept talking about the Alamo and how her 

father “did him dirty,” and threatened to kill her father for 

cheating him.

Sinnott at 1106 (internal citations omitted).

The defendant eventually went back in his own home, only 

to emerge again, “wielding a power drill, which he kept revving. 

He walked around the block for about 45 minutes, and [the 

victim called the police.] Id. The police arrived and the 

defendant went back in his home. After the police left, the 

defendant came back outside, and approached the victim and 

her mother. The victim “instinctively put her hands up to stop 

him. Her long nails got caught in his shirt, and as the two 

struggled, four of her nails were ripped from their nail beds, 

causing her fingers to bleed.” Id. The defendant was charged 

with a variety of crimes, including ethnic intimidation.

After a discussion of the facts and reasoning behind the 

Ferino decision and examination of a Court of Appeals of 

Michigan decision regarding a similar issue, the Court in Sinnott

determined that “all that is required [of the ethnic intimidation 
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statute] is that the ethnically malicious intent be present, 

concurrent with the underlying criminal act,” holding that “the 

intent element is satisfied if there is evidence that ethnic malice 

was a motivator for the defendant’s criminal act, it need not be 

the sole motivator.” Sinnott at 1110.

In the case at bar, the entire criminal episode was 

captured on video, and posted to the Internet as a “smack cam.” 

After Detective Williams learned about the incident and reviewed 

the video recording of the incident, he interviewed [C.W.] 

concerning the use of the term “pinks.” 

[ADA Dimmig]. So, did you ask ... C.W. about the term 

“pink?”

[Detective Williams]. Yes.

Q. And what did C.W. tell you about the term “pink?”

A. It was a racial term.

Q. A racial term?

A. Yes.

Q. Not a pinko commie.

A. No.

Q. And not a “pink” homosexual.

A. No.

Tr. at 103-104:19-5.

While it is undisputed that [C.W.] was not the individual 

who actually smacked N.G. in the head, it is clear from the 

videotape, and from [C.W.]’s statements to Detective Williams 

that he “aided or agreed or attempted to aid” the actual 

aggressor in smacking N.G., an action that was based, at least in 

part, on N.G.’s race. When [C.W.] and his friends initially 

approached N.G. and his friends seated at the table in the lunch 

room, they did so as a unit. It was clear that [C.W.] did not just 

happen to be in the room in close proximity to the incident. 
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[C.W.] is initially seen on the approach to the table. Later, the 

initial person filming the “smack cam” hands the camera over to 

[C.W.], who continues to film the interactions and is heard 

laughing, giggling, and making other noises. Additionally, the 

Commonwealth introduced [C.W.]’s statement, which appears to 

address the victim, N.G.:

I know you guys are probably mad at the fact that my 

friends were making front of you because your race and 

how different ya’ll look from every body else, and when 

one of my friends slaped cam you, and tryed to take you 

guys phone.

Comm. Exhibit 2, October 15, 2014 (spelling errors in original).

Juvenile Court Opinion, 6/5/2015, at 18-21.

We agree with the court’s analysis. Contrary to C.W.’s argument, and 

as explained above, C.W. was not merely present at the scene and his 

actions were sufficient to conclude that he acted as an accomplice. 

Moreover, we point to his confession, which confirms C.W. and his friends 

targeted and antagonized the victim because of his race. 

Furthermore, C.W.’s reliance on case law that a single derogatory 

comment cannot support a finding of ethnic intimidation is misplaced as 

Ferino is distinguishable from the present matter. In Ferino, the evidence 

merely established the defendant aimed and fired a weapon in the direction 

of the victims, which was preceded by a pejorative and derogatory threat. 

Here, C.W. and his cohorts entered the cafeteria with the intent to film and 

assault the victim because he was of a different race. C.W. admits that their 

actions were based on race, which establishes a malicious racial animus. 

See Sinnott, 976 A.2d at 1189-1190. Accordingly, we conclude the record 
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contains sufficient evidence to sustain C.W.’s adjudication for ethnic 

intimidation. Therefore, we affirm the order of disposition.

Dispositional order affirmed.

Judge Lazarus joins the memorandum.

Justice Fitzgerald files a concurring and dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/27/2016