[J-88-2017]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

IN THE INTEREST OF: J.B.

APPEAL OF: J.B.

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No. 31 WAP 2017

Appeal from the Order of the Superior 

Court entered September 1, 2016 at No. 

980 WDA 2015, affirming the Order of 

the Court of Common Pleas of 

Lawrence County entered May 18, 2012

at No. 113 of 2011, JUV.

ARGUED: November 29, 2017

OPINION

JUSTICE TODD DECIDED: JULY 18, 2018

J.B., a juvenile, appeals from the Superior Court’s order affirming the

dispositional order of the juvenile court entered after its adjudication of J.B. delinquent

of the offenses of first-degree murder and homicide of an unborn child in connection 

with the shooting death of his stepmother inside their family home on the morning of 

February 20, 2009. J.B. asserts that there was insufficient evidence to support his 

adjudication of delinquency beyond a reasonable doubt for these offenses, and, 

alternatively, that the juvenile court’s adjudication was against the weight of the 

evidence. Our careful review of the evidentiary record in this matter compels our

conclusion that the evidence introduced at his adjudicatory hearing was insufficient, as 

a matter of law, to establish his delinquency for these offenses beyond a reasonable 

doubt. As a result, we are obligated to reverse the Superior Court’s order which 

affirmed the juvenile court’s order of disposition for these offenses.
[J-88-2017] - 2

I. Factual Background

In our prior opinion in this matter, In re J.B., 106 A.3d 76 (Pa. 2014) (“In re J.B. 

II”), we recounted the factual circumstances surrounding the criminal offenses for which 

J.B. was adjudicated delinquent. As these facts must be scrutinized as part of our 

consideration of J.B.’s present claims, we set forth those facts from that opinion in full:

During February 2009, C.B. (an adult male), along with his fiancée 

— K.M.H (“the victim”) — her two daughters, J.H. (age 7) and A.H. (age 

4), and C.B.’s 11-year-old son J.B. were living together in a two-story 

rented house. The house was located in a rural area surrounded by 

farmland and woods, and situated near the town of Wampum, 

Pennsylvania. During the predawn hours on the morning of Friday, 

February 20, 2009, C.B. left the house to go to work. According to C.B., it 

had snowed overnight, and at the time he was leaving — 6:45 a.m. —

there was snow on the ground. N.T. Adjudication Hearing, 4/11/12, at 

147. C.B. recalled that he departed in his usual fashion by backing his 

vehicle out of a parking area adjoining the rear of the house and onto the 

long driveway which led from a combination storage barn and garage 

complex (“garage”) located behind the house to the nearby thoroughfare 

of Wampum-New Galilee Road (“road”).1 He arrived at work 

approximately fifteen minutes later at around 7:00 a.m. Id. at 146.

Later that morning, J.B. came downstairs from his upstairs 

bedroom in the house to get dressed for school. Id. at 68. During this 

period of time, C.B. and the victim — who was then over 8 months’ 

pregnant — had been in the process of relocating the contents of their 

shared bedroom on the first floor of their home to J.B.’s upstairs bedroom, 

attached to which was another smaller bedroom they had previously 

converted into a nursery for use once their baby was born. N.T. 

Adjudication Hearing, 4/10/12, at 108; 4/11/12, at 68-69. This shared 

bedroom was located in the front of the house directly to the right of the 

front door. N.T. Adjudication Hearing, 4/10/12, at 95. 

 

1

 The front of the house faced the road, and, as viewed from that 

perspective, the parking area was located immediately behind the house 

on the left hand side, with the barn situated some distance further back to 

the left and rear of the house. All locational descriptions hereinafter 

provided in this opinion proceed from a vantage point of a viewer facing 

the house from the road. 
[J-88-2017] - 3

In preparation for the final move, which was to take place during the 

upcoming weekend, some of J.B.’s personal belongings, including his 

clothes, had already been placed downstairs inside of the shared first floor 

bedroom. N.T. Adjudication Hearing, 4/11/12, 68-69. After awakening, 

J.B. went downstairs, entered that bedroom, where the victim was 

sleeping at the time, retrieved his clothes, and got dressed in a nearby 

bathroom. Id. at 69. After dressing, J.B. sat on the couch with J.H. and 

watched television. Id. A.H. was still asleep. Id. at 66. J.B. recalled that 

while he and J.H. were watching television, he heard the victim click her 

cell phone — either open or shut — which he presumed was her checking 

the time. Immediately thereafter, the victim called out to them that “they 

needed to leave or they would be late for the bus.” Id. at 70. J.B. and J.H. 

left the house one or two minutes later, which J.B. estimated was around 

8:13-8:14 a.m., since both children normally caught the school bus that 

transported them to Mohawk Elementary School around 8:12 a.m. every 

morning. Id. at 89. As J.B. exited the house, he noticed a large black 

truck parked by the garage.2 N.T. Adjudication Hearing, 4/11/12, at 65-66.

 

The driver of the school bus which arrived to pick up the children 

noted that, when he first saw J.B. and J.H., they had made it a third of the 

way down the driveway, and were walking toward the road, with J.B. a 

little bit ahead of J.H. N.T. Adjudication Hearing, 4/10/12, at 152. Once 

the children saw the school bus, however, the driver recalled they both 

began to run down the driveway toward the bus with J.B. outpacing J.H. 

by about ten yards during the run. Id. at 153. As they ran towards the 

bus, the driver did not notice anything unusual in the way the children 

were acting, and, at no time while he was watching them, did he observe 

them leave the driveway, or throw anything. Id. at 154, 156. Once the 

children got to the bus, they each took their respective assigned seats, as 

per their normal routine. Id. at 153-54. The bus driver recalled observing 

nothing out of the ordinary about the children’s behavior after they had 

gotten on the bus and during the time they were being transported to 

school. Id. 

 

2

 As the Superior Court noted, the house had four entrances, In re J.B., 69 

A.3d 268, 280 n. 11 (Pa. Super. 2013); Trial Exhibits 3, 4, 8, and 29 

(photos of the house). C.B. testified that, as was their usual practice, J.B. 

and J.H. would likely have exited the house through a laundry room door 

located on the right hand side of the house opposite the driveway. In 

order to get to the driveway from that exit, a person would have to 

immediately turn left — and, thus, be facing the garage behind the house 

— then proceed down a flight of stairs, turn left again, and walk through 

the parking area between the house and garage. N.T. Adjudication 

Hearing, 4/11/12, at 156-57. According to C.B., the family never used the 

front door of the house. Id. at 155, 157-58. 
[J-88-2017] - 4

Approximately 45 minutes after the children got on the school bus 

— shortly after 9:00 a.m. — a six-person work crew from a tree service 

company arrived at the premises to finish collecting firewood they had cut 

and collected the previous day from the wooded area located in front of 

the house. Id. at 13, 19, 29. The crew came in three trucks, with the lead 

truck driven by the owner of the business — Gary Cable — entering the 

driveway first. Cable and his workers parked their trucks between the 

front of the house and the woods line which was also in front of the house, 

but closer to the road. Cable and his crew remained in that area all day. 

Id. at 18. Cable remembered that there was a “light” coating of snow at 

the time on the ground, which he estimated was approximately 1/8-1/4 of 

an inch in depth. Id. at 20. Cable did not recall seeing any tire tracks in 

the driveway on his arrival, although he did note that the center of the 

driveway was “humped up” when he pulled in. Id. at 22, 31.3

Cable and his crew began working, after which one of his workers 

came to him and reported seeing the screen door to one of the entrances 

to the house standing open. Id. at 23. Cable told the worker that he 

would keep an eye on it. Id. Approximately ten minutes later, Cable 

noticed the door open again and observed a little girl — A.H. — crying; 

whereupon, Cable went up to the porch to see what was the matter.4 A.H. 

told Cable that “her mother was dead.” Id. at 25. Cable called 911 and 

sent one of his workers — Gary Suhanec — to the end of the driveway to

flag down the state police officers who had been dispatched. Cable, 

without entering the house, attempted to console A.H. by speaking to her 

through the door, and Cable instructed her to get her blanket from the 

couch and come over to the door so he could talk to her and keep her 

calm. Id. at 26-27. 

While waiting for the police to arrive, Suhanec called Cable on his 

cellphone and informed him there were footprints on the driveway. Id. at 

37. It was at that point that Cable observed two sets of small footprints in 

 

3

 In his testimony at the adjudication hearing, Cable conceded that, based 

on the amount of snow he observed, had a vehicle been driven on the 

driveway at 6:45 a.m. it would “definitely” have left tire tracks. Id. at 32. 

C.B. also testified at the adjudication hearing that Cable informed him, 

when they conversed on the evening of February 20, 2009, that one of his 

employees had seen tire tracks and that C.B. had requested that Cable 

tell the investigating officers about this. N.T. Adjudication Hearing, 

4/11/12, at 153. Cable did not recall any of his employees commenting on 

the presence of tire tracks. N.T. Adjudication Hearing, 4/10/12, at 39. 

4

 It was not clear from the record which entrance the worker and Cable 

were referring to. 
[J-88-2017] - 5

the center of the driveway between “[w]here the tire tracks run on either 

side of the driveway.” Id. at 38, 40. Cable estimated this was 

approximately 45 minutes after he arrived — around 9:45 a.m. Id. at 36.

The first state police officers — Troopers Harry Gustafson and 

Corporal Jeremy Bowser — arrived on the scene at 10:13 a.m. Id. at 43-

46. Trooper Gustafson encountered A.H., who was crying, at the front 

door. He picked her up and then took her into the residence and sat her 

on the couch to watch television. Upon entering the residence through the 

front door, he immediately saw the body of the victim lying on her left side 

on the bed in the bedroom with a “very large” pool of blood by her head 

and upper shoulders and soaking the sheet beneath. Id. at 49, 71. 

Troopers Gustafson and Bowser engaged in emergency ventilation 

measures until paramedics arrived. 

During the performance of these resuscitative efforts, the school 

nurse called the victim’s cell phone requesting to speak to her. Trooper 

Gustafson answered the phone, identified himself, and talked to the nurse, 

who indicated that J.B. was in her office because he was not feeling well 

and that he was requesting to come home for the day. Id. at 59-60. 

Trooper Gustafson asked the nurse to “baby-sit” J.B. until they could make 

arrangements to have someone pick him up. Id. at 60.

The paramedics arrived at around 10:40 a.m. and began to 

examine the victim. Id. at 85. During the examination, one of the 

paramedics noted a gunshot wound to the back of her head. Id. at 81-82. 

The paramedics could not detect any life signs from the victim, nor any 

fetal heartbeat. Id. at 81. At this point, other crime scene investigators 

from the Pennsylvania State Police and the Lawrence County Coroner’s 

Office were sent to the scene, after which the victim and her unborn fetus 

were pronounced dead. In a short period of time thereafter, state police 

investigators confirmed that C.B. was at work that morning as he claimed, 

and, after a gunshot residue test of his hands was negative, he was 

quickly eliminated as a suspect. N.T. Adjudication Hearing, 4/11/12, at 63, 

82, 138, 147.

One of the state police officers who arrived at the home was 

Trooper Janice Wilson, who, upon arrival, spoke briefly with A.H. 

Because A.H. was in a state of shock, she could not provide coherent 

answers to Trooper Wilson’s questions. Id. at 60-61. Trooper Wilson next 

went to Mohawk Elementary school to interview J.H. and J.B. 

Upon arrival at the school — shortly after noon — Trooper Wilson 

asked to speak to J.B., but was informed he was sleeping in the nurse’s 

office because he had a stomach ache. Id. at 63, 70. Trooper Wilson 

then spoke with J.H., who initially was distraught because she thought she 
[J-88-2017] - 6

was in trouble; however, she calmed down after the school guidance 

counselor informed her she was not. Id. at 64. Trooper Wilson 

interviewed J.H. for about ten minutes, but recalled that “[s]he really didn’t 

have much to offer about what happened that morning.” Id.5 J.H. did not 

testify at the adjudication hearing.

J.B. was then awakened in the nurse’s office and brought by his 

guidance counselor to be interviewed by Trooper Wilson in a nearby 

conference room. Trooper Wilson did not inform J.B. of the death of the

victim, but, instead, asked him who had been present that morning in the 

house, and he replied that “it was his mom, referring to [the victim], and 

his two sisters and himself.” Id. at 65-66. He noted that his dad had 

already left for work, and A.H. was asleep and did not wake up before he 

and J.H. left for school. Id. Trooper Wilson next asked J.B. “if he had 

seen anyone else around or any vehicles there that day?” Id. J.B. replied 

that his mom’s green van was there which she used to drive A.H. to 

school, and, also, “that he saw a black large pickup truck parked back by 

the garage.” Id. Trooper Wilson pressed J.B. for details about the truck, 

since she believed that it possibly belonged to the individual who had 

killed the victim. Id. Trooper Wilson asked J.B. if the truck was running, 

and he stated that “he . . . didn’t know.” Id. Trooper Wilson inquired if J.B. 

“saw anyone around,” and she recalled that he replied no. Id. J.B. 

remarked the truck was of the same kind that he would usually see when 

the owner of the farm and another man would be in when they came to 

feed the cows. Id. at 66-67. Trooper Wilson further queried J.B. about 

what he had done that morning, and he recounted, as detailed above, his 

actions of retrieving his clothes, getting dressed and going with J.H. to the 

bus after the victim’s admonition to them to hurry up, and then his first 

observation of the black truck upon exiting the home. The interview 

concluded at that point.

Meanwhile, during the late morning and early afternoon hours, the 

state police began searching for Adam Harvey — the ex-boyfriend of the 

victim — because he had a history of making threats of violence against 

her. Id. at 125-26. At this time, the victim, as well as her parents, sister, 

and brother-in-law had a permanent Protection From Abuse (“PFA”) order 

against Harvey, stemming from an incident which occurred in February 

2008. During this incident, Harvey — then living in North Carolina — had 

called the victim’s mother and “threatened to take [her] whole family out.” 

Juvenile’s Exhibit B, PFA Order 2/4/2008. Harvey was also the owner of a 

 

5

 None of the trooper’s interviews were recorded, and her testimony 

regarding the interviews she conducted was based on two reports 

prepared 6 days and 13 days after the interviews, respectively. N.T. 

Adjudication Hearing, 4/11/12, at 106-07. 
[J-88-2017] - 7

black Ford F-150 pickup truck. Id. at 222-26. Harvey had returned from 

North Carolina in late October 2008, and had, within the previous two 

weeks, received paternity test results showing that A.H. was not his 

biological daughter. Id. at 151, 191, 207. Also, at some point during the 

preceding evening of February 19, 2009, Harvey confronted the victim’s 

parents in a nightclub where he had gone to pick up food — resulting in 

his ejection from the club. Id. at 126, 150. 

Trooper Dominick Caimona was dispatched by his supervisor to 

find Harvey, who was staying with a family that Trooper Caimona knew —

the Klingensmiths, in the City of New Castle. Id. at 220-23. When 

Trooper Caimona arrived at the Klingensmith residence, he was informed 

by Thomas Klingensmith that Harvey was residing at an address in Union 

Township, Lawrence County, and that Klingensmith would show him the 

address. Klingensmith got into Trooper Caimona’s car which proceeded 

along State Street — the main thoroughfare in Union Township. As the 

state police cruiser approached the intersection of State Street and Miller 

Avenue, at around 1:20 p.m. in the afternoon, Klingensmith saw Harvey’s 

black truck at the intersection and pointed it out to Trooper Caimona. Id.

at 221, 223, 226. Trooper Caimona parked the police car and walked over 

to the truck; he asked Harvey to accompany him to the state police 

barracks to talk with him, and Harvey agreed. Id. at 221. 

Trooper Caimona noted that the intersection was located 

approximately 2 city blocks from the home of Harvey’s parents where 

Harvey was staying. Id. at 222. Trooper Caimona observed that Harvey’s 

truck had a light coating of snow on the hood and roof and that it was dirty, 

as if it had been driven. Id. at 225. Harvey was taken to the state police 

barracks and interviewed at around 2:23 p.m. Id. at 139. Harvey provided 

an alibi, stating that he had been home in the basement of his parents’ 

house since 10:00 p.m. the previous evening, and that the only way out of 

the house was through the upstairs floor where his dad was. Id. at 133. 

Harvey’s hands were tested at that time by investigators for the presence 

of gunshot residue, but none was detected. Id. at 137. Based on his 

proffered alibi, and the presence of snow on the truck, which, in the 

investigators’ opinion, suggested that it could not have been driven to 

Wampum — a distance Trooper Caimona estimated to be 8-10 miles —

and then back to his home without coming off, Harvey was excluded as a 

suspect. Id. at 132-33, 223. 

Also during the afternoon of February 20, Corporal Andrew 

Pannelle of the Pennsylvania State Police conducted a visual inspection of 

the inside of the house. He observed that all of the doors to the house 

were unlocked, and, also, that the front door had blood on its frame. N.T. 
[J-88-2017] - 8

Adjudication Hearing, 4/10/12, at 124, 134.6 Corporal Pannelle, while 

walking through the first floor of the house, noticed a blue blanket on the 

floor near the front door, and he seized it because it had a hole in it, which 

he believed could have been indicative of a shotgun blast. Id. at 127. The 

blanket was subsequently subjected to microscopic examination and 

chemical testing and no gunshot residue, or blood, was found on it. N.T. 

Adjudication Hearing, 4/11/12, at 121-23. 

Upon entering the first floor bedroom where the victim’s body was 

found, Corporal Pannelle noted that the television, which sat on top of an 

armoire located in the right hand side of the room, was turned on. N.T. 

Adjudication Hearing, 4/10/12, at 102. Observing that the doors to the 

armoire were closed, he opened them. Id. at 103. Inside the armoire, he 

saw a locked gun safe on the bottom shelf, which was later determined to 

contain two handguns and ammunition. On the top shelf, Corporal 

Pannelle saw a work helmet and two boxes of shotgun shells — one 

opened and one closed. Id. at 104. The open box contained 16 unfired 

“Federal Premium” brand .20 gauge shotgun shells. Id. at 106. 

Corporal Pannelle, accompanied by Sergeant Markilinski, also of

the Pennsylvania State Police, then proceeded to examine the second 

floor of the house. Upon entering the front bedroom to the right of the 

stairwell — J.B.’s bedroom — both troopers noted the presence of six 

“long guns” partially covered by an orange blanket, which, as observed 

from the entrance to the bedroom, were standing in the left hand side 

corner of the room nearest the door, between a dresser and the wall. Id.

at 108-09. The butt of one gun — a .30-.30 rifle — was protruding the 

furthest into the room as it leaned against the wall. To its immediate right 

was a muzzleloader, and leaning directly against that weapon, on the 

right-hand side, was a .20 gauge shotgun — a “Harrington and 

Richardson . . . youth model.” Id. at 110-11, 121. Both of these guns, like 

the other four in the group, were found standing upright against the back 

of the bedroom wall. Id. at 139. Corporal Pannelle began to remove 

individual guns from the group, one at a time, and hand them to Sergeant 

Markilinski for him to examine and determine if they were loaded. Id. at 

141.

The first gun removed by Corporal Pannelle was the flintlock rifle, 

which Sergeant Markilinski examined and noted nothing unusual about it. 

Id. at 141. The second weapon Corporal Pannelle handed to Sergeant 

Markilinski was the .20 gauge shotgun. Sergeant Markilinski opened the 

breech of the shotgun and smelled burnt gunpowder in the breech, which 

 

6

 Although the blood was sent for forensic testing, no further information 

was provided at the hearing regarding its origin. 
[J-88-2017] - 9

he pointed out to Corporal Pannelle, who also smelled the odor. Id. at 

113. Sergeant Markilinski also observed gunpowder residue in the breech 

and in the barrel. Id. at 141-42. Both Corporal Pannelle and Sergeant 

Markilinski testified that, based on their personal experience with firearms, 

they believed the shotgun had been “freshly” or “recently” fired. Id. at 130-

31, 142. However, both acknowledged that they were not offering expert 

opinions in this regard, and that they could not opine with any degree of 

scientific certainty exactly when the shotgun had been fired. Id. at 132-33, 

143. The .20 gauge shotgun was seized by the troopers and sent for 

forensic examination. Id. at 147. 

Because of the discovery of the shotgun, at 10:00 p.m. on the 

evening of February 20, Trooper Wilson re-interviewed J.B. at his 

grandmother’s home where he was staying. N.T. Adjudication Hearing, 

4/11/12, at 71-72. J.B. had not been informed of the victim’s death 

previously by anyone so, prior to Trooper Wilson speaking with J.B., his 

father, C.B., took J.B. aside and told him “something bad had happened” 

and “[the victim] isn’t with us anymore, she’s in heaven.” Id. at 72. Upon 

hearing this, J.B. became emotional and started crying. Id. Once he had 

calmed down, Trooper Wilson, along with another trooper, began to 

question J.B., with his father observing. Trooper Wilson described his 

demeanor as “low-key” and that he was not nervous, excited, or fidgety. 

Id. at 87. 

Trooper Wilson asked J.B. for more details about the black truck 

and when he had first seen it. Id. at 73. J.B. recalled that he first saw the 

truck as he exited the house, when he reached in his pocket to see if he 

had ice cream money for school, and, in the process, dislodged a mass of 

fuzz from his pocket which fell to the ground. N.T. Id. at 73. When he 

bent over to pick it up, it was then he noticed the truck parked by the 

garage. Id. Trooper Wilson asked J.B. if J.H. had seen the truck, and he 

replied that he mentioned it to her but she didn’t respond, as he believed 

she was, at that point, too far ahead of him to hear him. Id. at 74. J.B.

also mentioned to Trooper Wilson that, while he was out that afternoon in 

a vehicle driven by one of his relatives, he observed a white S-10 truck 

which he said to his relative resembled the truck that was at the farm, 

except he stated that the truck at the farm was black and larger than the 

S-10. Id. at 94-95.

J.B. also informed Trooper Wilson that he had seen a person in a 

white hat ducking over inside the truck he observed at the farm. Trooper 

Wilson inquired of J.B. why he had not mentioned that when she talked 

with him that morning, and he explained that when he first glanced at the 

truck he didn’t see anybody. Id. at 75. J.B. also recounted his 

observation that the lights were on inside of the truck, and when Trooper 

Wilson stated that he did not tell her that during the first interview, J.B., 
[J-88-2017] - 10

after hesitating, then described the lights as being “sort of half on.” Id. at 

75. 

Trooper Wilson next asked J.B. if he had any guns, and he 

informed her that he had a .30-.30 rifle. Id. at 76. Trooper Wilson 

questioned J.B. as to whether he had a shotgun, and he replied yes. She 

inquired whether he knew what gauge it was, and he stated that “it was a 

20-gauge,” and further related that he only shot the gun outside and, also, 

that he had shot it with his dad last month. Id. at 77, 101. Trooper Wilson 

asked J.B. if he had fired the gun that morning, and he answered “no.” Id.

at 101. The interview ended at that point. Id. at 78. 

At 3:30 a.m. on the morning of February 21, 2009, state police 

arrested J.B. at his grandmother’s residence and charged him with the 

murder of the victim and her unborn fetus. N.T. Adjudication Hearing, 

4/10/12, at 217.7 No gunshot residue testing of J.B.’s hands was ever 

performed. When J.B. was arrested, he was wearing a polo shirt, blue 

jeans, a brown jacket, and tennis shoes. Id. These were the same 

clothes J.B. had on when interviewed by Trooper Wilson at his school at 

noon on February 20. N.T. Adjudication Hearing, 4/11/12, at 78. 

Later during the morning of February 21, after sunrise, a team of 

state police officers searched the exterior grounds in the immediate 

 

7

 Although only 11 years old, J.B. was charged as an adult, and he 

subsequently filed a decertification petition to transfer his case to the 

Juvenile Division of the Court of Common Pleas of Lawrence County. The 

[juvenile] court — Judge Dominick Motto — denied the petition on the 

grounds that, since J.B. consistently denied having committed the crimes 

with which he was charged during interviews with psychological experts, 

he had, in the court’s view, not taken responsibility for his actions; 

therefore, based on these denials of culpability, the [juvenile] court 

reasoned that J.B.’s “prospects of rehabilitation [were] . . . likely to be 

unsuccessful.” Commonwealth v. Brown, 26 A.3d 485, 490 (Pa. Super. 

2011). J.B. was granted permission for an interlocutory appeal of Judge 

Motto’s order, and the Superior Court vacated it. The Superior Court held 

that requiring J.B. to accept responsibility for the conduct he was alleged 

to have committed in order to obtain decertification would require him to 

effectively admit his guilt of the particular offenses charged, and, thus, 

violated his Fifth Amendment right against compulsory self-incrimination. 

See id. Consequently, the court remanded for a new decertification 

hearing, which, after the recusal of Judge Motto, was held before Judge 

John Hodge of the Court of Common Pleas of Lawrence County. Judge 

Hodge granted the decertification petition and presided over the 

adjudication and dispositional hearings held thereafter. 
[J-88-2017] - 11

vicinity of J.B.’s residence, and along its driveway. N.T. Adjudication 

Hearing, 4/10/12 at 207, 211. Sergeant Daniel Brooks, in the company of 

several other state police officers, began walking outward from the porch 

and down the driveway toward the road. Just outside of the residence, 

adjacent to the porch area, they found a “very rusty” spent shotgun shell. 

Id. at 199, 202. As the officers walked further down the driveway in the 

direction of the road, they discovered a second spent shell. This shell — a 

“Federal Number 6” brand .20 gauge — was found approximately 100 feet 

away from the house on the left hand side of the driveway at the beginning 

of a fence line that ran the entire length of the left side of the driveway. Id.

at 195-96, 198, 210. The spent shell was located near the base of the 

wire fence, a few feet from the middle of the driveway, and it was lying 

underneath leaves which were frozen and covered by ice and snow. Id. at 

210. When asked by the prosecutor at the adjudication hearing8to 

describe the condition of the shell — on a sliding scale ranging from 

“pristine to the other spectrum being rusted and broken up” — Sergeant 

Brooks characterized the shell as pristine, and he agreed with the 

prosecutor that it was not weathered. Id. at 201-02. 

Further along the driveway near the road, and embedded in the dirt 

of the driveway itself, the searching officers found a third spent shell 

which, like the shell found near the house, was “very rusty,” and it was 

also physically crushed into the surface of the driveway. Id. at 204. In 

Sergeant Brooks’ view, both rusty shells had been there “for quite some 

time.” Id. at 199. However, Sergeant Brooks also opined that there was 

no way to estimate exactly how long any of the three shells had been lying 

outside. Id. at 209. These three spent shells were the only ones found 

during the troopers’ search of the property, and, after being photographed 

in their original positions, they were collected as evidence. Id. at 205, 207. 

At the adjudication hearing, the Commonwealth presented the 

testimony of Dr. James Smith — a forensic pathologist — as to the nature 

of the victim’s gunshot wound.9 Dr. Smith noted that he determined that 

the victim sustained a single gunshot wound to the back of her neck, 

which, because of the presence of shotgun pellets in and around the 

wound, he opined was inflicted by a shotgun. N.T. Adjudication Hearing, 

4/10/12 at 161. Dr. Smith described this wound as being in the shape of 

“a large oval or ellipse” and “tangential,” i.e., slanted. Id. at 160-61. Due 

to the trajectory of the wound — proceeding “slightly” from the back of the 

 

8

 Because of a conflict of interest recognized by the current District 

Attorney of Lawrence County — Joshua Lamancusa — the Office of the 

Pennsylvania Attorney General took over the prosecution and currently 

represents the Commonwealth in this appeal. 

9

 No forensic expert was called by J.B.’s counsel to testify on his behalf. 
[J-88-2017] - 12

victim’s body to the front and upward — Dr. Smith believed it had been 

inflicted as the victim was lying on her left side on the bed. Id. at 161, 179. 

Dr. Smith further noted that hot gas from the shotgun blast entered 

the wound through the skin and muscle of the victim’s neck and caused 

the skin to bulge out and rupture near the point of entry. Id. at 168. This 

phenomenon, known as “blowback,” formed a “tract” or laceration in the 

skin. Id. To Dr. Smith, the nature of this type of damage indicated that the 

gas from the shotgun blast was mostly contained within the entry wound 

and did not have time to dissipate. Id. at 168-69. This factor, coupled with 

the presence of powder in the wound and “soot” around the surface of the 

skin near the point at which the pellets entered the skin, caused him to 

conclude that the shotgun was “very, very close to, or maybe even 

touching, the back of the neck” when it was fired. Id. at 168, 183-85. 

Although he could not give a precise distance, he estimated the shot was 

fired from a distance of closer than two inches from the victim’s neck, and 

the barrel of the gun was in “close contact” with her skin at the time. Id. at 

185. 

Dr. Smith found that, as the pellets entered the soft tissues of the 

neck, a small portion of the pellets discharged a piece of bone from the 

occipital (rear) region of the victim’s skull near its base, and then entered 

the interior of her cranial cavity. Id. at 161-62. In his estimation, these 

pellets caused damage to the centers of the victim’s brain which controlled 

her autonomic nervous functions, thereby causing the death of both the 

victim and, because of the cessation of the victim’s blood circulation, her 

unborn fetus. Id. at 160-61, 165; 173-78. Dr. Smith noted, however, that 

the vast majority of the pellets he observed had “rebounded back 

downward” and traveled back in the direction from which they had 

entered, resulting in them becoming lodged in the back of the victim’s 

neck. Id. at 162. 

Regarding the question of whether the blowback which occurred 

near the entry wound could have caused blood or other tissue material to 

travel backwards along the track of the pellets and enter the barrel of the 

shotgun, Dr. Smith opined that, generally, blowback is more common 

whenever hot gas from a gunshot wound penetrates beneath the skin and 

encounters bone which does not yield. Id. at 190-91. Dr. Smith 

acknowledged that the shot which entered the victim’s wound impacted 

the bones of her skull. Id. at 191. Dr. Smith agreed that it was, therefore, 

possible that this impact could have caused tissue and blood to have been 

propelled back through the channel created by the shot and into the barrel 

of the gun; however, he believed the angle of the gun at the time the 

wound was made minimized the amount of blowback, and, thus, he 

opined that one would not expect to find as much blood or tissue as would 
[J-88-2017] - 13

be present if the wound was inflicted straight into the skin, i.e., with the 

gun barrel held at a 90 degree angle thereto. Id. at 170-72, 186-92. 

Also testifying at the adjudication hearing on behalf of the 

Commonwealth was a certified toolmark and firearm examiner — Trooper 

Paul Burlingame of the Pennsylvania State Police. Trooper Burlingame 

examined the .20 gauge shotgun seized from J.B.’s residence. After test 

firing the shotgun, and subjecting it to a “shock and drop” test, he 

determined that the weapon was not malfunctioning. N.T. Adjudication 

Hearing, 4/11/12 at 40. Trooper Burlingame related that he also 

compared the 27 shotgun pellets and pieces of wadding recovered from 

the body of the victim with pellets from one of the unspent .20 gauge 

Federal No. 6 brand shotgun shells found in the armoire of the victim’s 

bedroom.10 Trooper Burlingame noted that pellets and wadding 

discharged from smooth bore shotguns, like the .20 gauge recovered from 

J.B.’s bedroom, do not have any marks on them which would make them 

generally usable for conducting an individual examination. Id. at 40, 47.11 

Trooper Burlingame, therefore, could not perform an individual 

examination of the pellets recovered from the victim and the pellets in the 

unfired .20 gauge shells taken from the armoire. He did note, though, that 

the 27 shotgun pellets recovered from the victim were “consistent” in size, 

shape, weight, material,12 and construction with the pellets in the unfired 

shells, and, also, that the pieces of wadding taken from the body of the 

victim were “consistent” with the type of wadding in the unfired .20 gauge 

shells. Id. at 45. Trooper Burlingame also testified that markings created 

by the manufacturing process, which were found on the discharged 

shotgun shell recovered from along the fence line of the driveway, were 

the same as the markings on the unfired .20 gauge shells in the armoire. 

 

10

 Shotgun shell wadding is normally constructed of either plastic or fiber 

material, and Trooper Burlingame explained that there are normally two 

areas in which wadding is found in every shotgun shell: “an over-powder 

post-type wad” which covers the powder in the shell and a “cup wad” 

which holds the shot itself. N.T. Adjudication Hearing, 4/11/12, at 45. 

11

 Trooper Burlingame described the process of individual examination as 

using a comparison microscope to examine, side by side, an article of 

discharged ammunition recovered from a crime scene and an article of 

discharged ammunition test fired from a particular gun, in order to 

determine whether the tool markings on each article of discharged 

ammunition, uniquely produced by every individual gun manufactured, 

match. Id. at 42-43. 

12

 It does not appear from the record that Trooper Burlingame conducted 

any comparative metallurgical analysis of the shot recovered from the 

victim and the shot contained within the unspent shells, but only a 

comparison of their exterior characteristics. 
[J-88-2017] - 14

Id. at 44. This led to his conclusion that the discharged shell had been 

fired from the .20 gauge shotgun taken from J.B.’s bedroom. Id. at 44, 47.

Additionally, Elana Somple, the manager of the forensic science 

department of R.J. Lee Laboratory — a materials testing laboratory —

testified at the adjudication hearing regarding the results of her testing of 

the shirt and pants J.B. was wearing at the time of his arrest for the 

presence of gunshot residue.13 Ms. Somple explained that, whenever a 

firearm is discharged, the firing pin impacts with the primer cap of the 

ammunition loaded in the firearm, which causes the chemical elements 

therein — lead, barium, and antimony — to ignite, and this force of ignition 

propels the bullet or projectile in the ammunition out of the front of the 

muzzle of the gun. Id. at 8-9. According to Ms. Somple, the rapid ignition 

of these 3 elements after the impact of the firing pin with the primer cap 

causes them to vaporize and form a plume, or cloud, around the firearm. 

Id. at 9. Eventually, the airborne particles in the cloud coalesce and land 

on areas immediately surrounding the firearm, such as the shooter’s 

hands or clothes. Id. Ms. Somple noted that whenever a particle is found 

with all 3 elements of lead, barium, and antimony fused together, it can be 

said with scientific certainty that the particle is gunshot residue produced 

from the discharge of a firearm. Id. at 9-10.

Ms. Somple described how she dabbed both sides of the front of 

J.B.’s shirt and the front of his jeans with double-sided sticky tape and 

then examined the particles lifted by the tape under a scanning electron 

microscope. Her examination revealed one particle of gunshot residue on 

the right side of J.B.’s shirt and one particle of gunshot residue on the left 

leg of his jeans. Id. at 16-17. Ms. Somple could not pinpoint which 

specific area on each article of clothing that the individual particles were 

found. Id. at 16. She also opined that the particles could have gotten onto 

the clothing in one of three separate ways: “[t]he person could have 

discharged the firearm[;] or been in close proximity to somebody else who 

discharged a firearm[;] or they came into contact with something that had 

gunshot residue on it.” Id. at 21. Ms. Somple further related that such 

particles can have an enduring presence on articles of clothing, noting: “If 

I discharged a firearm and took my clothes off, put them in the corner of 

my room and they were undisturbed for a month, two months, a year, and 

then tested those clothes, you could still find gunshot residue on them.” 

Id. at 23. By contrast, she explained that a person who discharged a 

firearm and then went about his or her daily activities would have any 

gunshot residue on his or her hands removed by those activities. Id. at 

 

13

 The then-District Attorney of Lawrence County — John Bongivengo —

elected not to have R.J. Lee Laboratories test J.B.’s coat and shoes for 

gunshot residue. N.T. 4/11/12 at 136. 
[J-88-2017] - 15

13. Ms. Somple additionally related, “[a]s a rule of thumb,” that she would 

expect to see more particles of gunshot residue deposited on someone 

who fired a gun inside of a house, where there is no airflow, than someone 

who fired a gun outside where the wind could affect the deposition of the 

particles. Id. at 27-28. 

Corporal Jeffrey Martin of the Pennsylvania State Police testified at 

the adjudication hearing regarding the results of other forensic tests 

performed on J.B.’s clothing, the spent shotgun shell found along the 

fence on the left-hand side of the property surrounding J.B.’s home, and 

the .20 gauge shotgun taken from the residence. Corporal Martin testified 

that J.B.’s jacket, shirt, jeans and sneakers seized the morning of his 

arrest were all tested for the presence of blood stains, and no such stains 

were found. Id. at 123-24. No fingerprints or DNA material were found on 

the spent shotgun shell. Forensic examination of the shotgun itself 

revealed no latent fingerprints on the weapon, and no blood was detected 

in the interior of the shotgun barrel, on the exterior of the barrel, or on the 

frame of the shotgun. Id. at 122.

C.B. testified at the adjudication hearing that he, the victim, J.B., 

and her daughters all had a close relationship and that J.B.’s relationship 

with the victim was “[j]ust as normal as it was between her and her own 

daughters.” Id. at 141. With respect to the use of firearms on the 

property, C.B. related that he would quite frequently shoot guns in the 

area of the property located in front of the house near where the work 

crew parked on the morning of February 20, 2009. Id. at 142. C.B. also 

described his and J.B.’s participation in a turkey shoot at an indoor 

shooting range on Saturday, February 14, 2012 — less than a week 

before the .20 gauge shotgun was seized. Id. at 143, 182-83. C.B. 

recalled that J.B. used the .20 gauge shotgun in the turkey shoot and that 

he loaded and unloaded the shotgun for J.B. each time it was fired. Id. at 

145.14 C.B. also recounted that, because it was a cold winter evening, 

and the shoot took place in a large garage like structure, J.B. was wearing 

his winter coat during the entirety of the shoot, which was the same coat 

he was wearing on the day of his arrest. Id. at 146. 

C.B. further testified that he and the victim chose to have an 

unlisted phone number at their house in order to ensure that Adam Harvey 

could not contact them. Id. at 149. C.B. related that he listened to 10-12 

voicemails Harvey had left on the victim’s cellphone, in which Harvey 

threatened the victim and her family, and that the victim feared Harvey. 

 

14 Trooper Wilson confirmed J.B.’s participation in the “turkey shoot” with 

the .20 gauge shotgun. N.T. Adjudication Hearing, 4/11/12, at 102. 
[J-88-2017] - 16

Id. at 149, 177. C.B. had no personal knowledge of whether Harvey knew 

where he and the victim lived. Id. at 174. 

Adam Harvey testified at the adjudication hearing as well. He 

denied making threatening phone calls to the victim and denied the 

averments in the victim’s PFA petition which led to the entry of the PFA 

order against him. Id. at 200-01. Harvey also stated that he was not 

upset about the blood test results which showed he was not the father of 

A.H. Id. at 207. Harvey admitted seeing the victim’s parents on the 

evening of February 19, 2009, as he was walking out of a nightclub while 

picking up an order of chicken wings, and that he was told to leave. Id. at 

208. Harvey claimed that he went home thereafter to his parents’ house, 

where he was living in the basement, which was accessible through a side 

door on the upstairs floor. He denied going out at all on the night of 

February 20, and he stated that he did not leave his parent’s home until 

somewhere around 9:00 the next morning to return an automotive part to 

a store. Id. at 211-12. Harvey disavowed knowing where the victim was 

living, although he acknowledged having told the state police that people 

had previously informed him she was living “somewhere in Wampum.” Id.

at 210. 

In re J.B. II, 106 A.3d at 77-88.

II. Procedural History

At the conclusion of the juvenile hearing, counsel for J.B. orally moved for a 

judgment of acquittal, contending that the evidence was insufficient as a matter of law to 

sustain a guilty verdict since it did not establish beyond a reasonable doubt that J.B.

had committed the homicides. The juvenile court denied this motion and adjudicated 

J.B. delinquent of all charges. In its dispositional order, the juvenile court remanded 

J.B. to the custody of a secured facility until he reached the age of 21.

1

 J.B. did not file 

post-dispositional motions but instead filed a notice of appeal to the Superior Court. 

 

1 J.B., who has consistently maintained his innocence throughout the entirety of these 

proceedings, was released from custodial detention after successfully completing all of 

the goals set forth in his rehabilitation plan, and with the acquiescence of the Attorney 

General. He is reportedly attending college in another state. Nevertheless, he remains 

entitled to appellate review of his adjudication which, of course, carries with it a public 

stigma.
[J-88-2017] - 17

In his Statement of Matters Complained of on Appeal, J.B. raised the sole claim 

that the verdict was against the weight of the evidence. Although the juvenile court 

issued findings of fact and authored an opinion in support of its adjudication, it did not 

address this claim therein; rather, it issued a terse order denying the weight-of-theevidence claim.

Although the Commonwealth argued to the Superior Court that J.B.’s weight-ofthe-evidence claim was waived due to his failure to file post-dispositional motions, that 

court rejected this argument and proceeded to conduct appellate review of J.B.’s 

weight-of-the-evidence claim. In re J.B., 69 A.3d 268 (Pa. Super. 2013) (“In re J.B. I”). 

The court reviewed all of the evidence in the certified record in order to determine 

whether the juvenile court abused its discretion in making certain key findings of fact in 

support of its adjudication, namely its finding that there were no unaccounted for 

footprints or tire tracks around the home, and that no one was seen approaching or 

leaving the residence. In the juvenile court’s view, this precluded any possibility that 

another individual could have entered the residence after the children had left for school 

and the victim’s body was found. Id. at 279. The Superior Court determined these 

findings to be unsupported by the record and, indeed, contrary to the evidence. Thus, 

that tribunal ruled that the juvenile court palpably abused its discretion in making its 

weight-of-the-evidence ruling, vacated the dispositional order, and remanded for further 

proceedings.

2

 Id. at 281. The court did not address whether the evidence was 

insufficient to sustain the verdict, as J.B. had not asserted such a claim in his appeal.

The Commonwealth sought review of this decision from our Court, again 

contending that J.B.’s weight-of-the-evidence claim was waived due to his failure to file 

 

2 This opinion was authored by then-Judge, now-Justice Donohue, and joined by Judge

Shogan and then-Judge, now-Justice Wecht.
[J-88-2017] - 18

post-dispositional motions. Our Court accepted review, but held that J.B.’s weight-ofthe-evidence claim was not waived for failure to file post-dispositional motions,

inasmuch as the Juvenile Rules of Procedure did not require the filing of postdispositional motions in order to preserve a weight-of-the-evidence claim for appellate 

review, and as J.B. had preserved this issue when he raised it in his statement of 

matters complained of on appeal. In J.B. II, supra. Our Court remanded this case to 

the juvenile court so that J.B. could file post-dispositional motions nunc pro tunc.

Following remand, J.B. filed a post-dispositional motion nunc pro tunc in which 

he alleged that the adjudication must be vacated because the evidence was insufficient 

as a matter of law to sustain his conviction, and, alternatively that he was entitled to a 

new adjudication hearing since the adjudication was against the weight of the evidence. 

The juvenile court conducted no new hearings, but, rather, heard argument and 

accepted briefing from both parties on the issue. The court then issued an opinion on 

May 19, 2015 in which it found that the evidence was sufficient as a matter of law to 

establish J.B. as the perpetrator of the homicides, and that its verdict was not against 

the weight of that evidence.

3

 

In ruling on J.B.’s sufficiency claim, the juvenile court did not rely on the absence 

of footprints around the residence as it had in its first opinion. Instead, the court relied 

on the following facts to support its adjudication of J.B. delinquent beyond a reasonable 

doubt: (1) J.B. owned a .20 gauge shotgun “that was established to be the murder 

 

3

 According to J.B., the juvenile court purportedly made new findings of fact and 

credibility determinations in its post-remand opinion, and J.B. challenged the propriety 

of this action in his petition for allowance of appeal. We did not accept this question for 

review; moreover, inasmuch as a challenge to the sufficiency of the evidence raises a 

pure question of law, and, in addressing such a challenge, we review the record de 

novo, we need not address this question presently. See, e.g., Commonwealth v. 

Packer, 168 A.3d 161, 163 n.2 (Pa. 2017).
[J-88-2017] - 19

weapon”; (2) the gun smelled as if it had recently been fired; (3) only a limited number of 

people knew where the gun was stored, including J.B.; (4) J.B. knew how to fire a 

shotgun; (5) J.B. had one particle of “gunshot residue” on the right side of his shirt, and, 

found in that same location, were 14 particles which contained two of the three 

elements that, together, constitute gunshot residue (lead, barium and antimony), which 

the court viewed as suggestive;

4 and J.B. had one additional particle of gunshot residue 

on the left side of his jeans, in addition to, in that the same location, 17 particles 

containing two of the three constituent elements of gunshot residue and 15 particles 

containing a single constituent element of gunshot residue; (6) a “pristine” spent 

shotgun shell, consistent with the type of shotgun shells found in a box in the armoire in 

the victim’s bedroom, was found along a fence running parallel to the driveway where 

J.B. and J.H. walked on the way to the bus, thus supporting the Commonwealth’s 

hypothesis that J.B. discarded the shell while on the way to the school bus; and (7)

there was no sign of forced entry into the home, or of a struggle inside or outside of it. 

Juvenile Court Opinion, 5/19/15, at 39-41.5 

 

4

 As explained more fully herein, Elana Somple testified that, for a particle to be 

scientifically identified as gunshot residue, it must contain all three of these elements, 

and the mere presence in a particle of one or two of these elements is insufficient from 

a scientific standpoint to conclude that the elements were deposited there by the 

discharge of a firearm. 

5

 The juvenile court also found, based solely on the Commonwealth’s closing 

arguments, that J.B. was “adversely affected by his father’s relationship with the victim 

and the expected arrival of a baby boy,” as well as the fact that J.B. felt left out of family 

affairs. Juvenile Court Opinion, 5/19/15, at 36. The juvenile court theorized these 

feelings of estrangement, coupled with the move of his belongings to the downstairs 

bedroom, may have given J.B. motive to commit the crime. Id. Based on our review of 

the record, we agree with J.B.’s argument that these assertions are wholly speculative 

and based upon no evidence whatsoever. Indeed, as recited above, the only evidence 

of record regarding the relationship between J.B. and his stepmother was that provided 

by his father, who indicated the relationship was a positive one. Moreover, and in any 

event, arguments of counsel are not evidence, see Commonwealth v. Roney, 79 A.3d 

595 (Pa. 2013), and motive is not an element of the offense of first-degree murder, see

(continued...)
[J-88-2017] - 20

Based on this evidence, the juvenile court found that it was unrealistic to 

conclude that an unidentified individual had entered the residence without disturbing its 

contents, retrieved the shotgun from the upstairs bedroom, taken the ammunition from 

the armoire, and, after shooting the victim, replaced the gun in the upstairs bedroom 

and then discarded the spent shell along the fence line. Accordingly, the juvenile court

found the evidence sufficient to establish beyond a reasonable doubt that J.B. was the 

perpetrator. The juvenile court relied on this same evidence to conclude that its 

adjudication of J.B.’s delinquency was not against the weight of the evidence. 

J.B. appealed to the Superior Court which, in a split panel decision, In re J.B. III, 

147 A.3d 1204 (Pa. Super. 2016) (“In re J.B. III”),

6 affirmed the juvenile court. The 

Superior Court rejected J.B.’s claims that the juvenile court improperly reassessed the 

evidence and made new credibility determinations in ruling on J.B.’s post-dispositional 

motions. That tribunal also rejected his sufficiency and weight-of-the-evidence claims, 

relying on the same evidence recited by the juvenile court in its opinion. 

J.B. petitioned our Court for review of this decision, which we granted, in order to 

consider his claims that the evidence was insufficient as a matter of law to sustain the 

adjudication of the juvenile court, and that its adjudication was against the weight of the 

evidence. 

III. Standard of Review

As this case involves the interpretation and application of the standard for 

appellate review of a sufficiency-of-the-evidence claim, and because we find this claim 

dispositive for reasons set forth herein, we begin with a review of the development and 

 

(...continued)

18 Pa.C.S. § 2501. Consequently, in performing our sufficiency review, we completely 

disregard the trial court’s findings in this regard. 

6

 This opinion was authored by Judge Stabile and joined by Judge Olsen, with Judge 

Musmanno noting his dissent but not authoring a separate writing.
[J-88-2017] - 21

use of this standard by our Court from its inception at the common law to the present,

where it has attained the status of a constitutionally mandated requirement of appellate 

review of a criminal conviction under the Due Process Clause of the United States 

Constitution. 

From the earliest days of our Commonwealth, our Court has reversed criminal 

convictions of individuals on the basis that the evidence relied upon by the prosecution 

to obtain those convictions was “insufficient.” See Krause v. Commonwealth, 93 Pa. 

418, 422 (Pa. 1880) (“In favor of the liberty of the citizen, the court may, and in a proper 

case, should declare the evidence insufficient to convict.”). In making the determination 

as to whether sufficient evidence was introduced at trial to support an appellant’s 

criminal conviction, our Court incorporated into the process of appellate review the by 

then widely accepted common law principle that, in order for a criminal conviction to be 

lawful — such that the Commonwealth is empowered to deprive an individual of his or 

her life, liberty, or property as punishment — the prosecution bears the burden of 

establishing, beyond a reasonable doubt, that the individual committed all of the 

requisite elements of the criminal offense with which he is charged. By the 1930s, our 

Court’s practice of reviewing the trial evidence to determine whether the Commonwealth 

had proven each of the elements of the offense charged beyond a reasonable doubt 

was well established. See, e.g., Commonwealth v. Karmendi, 195 A. 62, 63 (Pa. 1937)

(in review of claim that trial evidence was insufficient to sustain first-degree murder 

conviction, we examined the evidence introduced by the Commonwealth at trial to 

determine if the elements of that offense had been established — i.e., “was there 

sufficient evidence, direct or circumstantial, from which the jury might 
[J-88-2017] - 22

find beyond a reasonable doubt a homicide of the first degree, committed by the 

accused?”).7 

Thereafter, our Court formulated the following standard of review to assess a 

sufficiency-of-the-evidence claim, which explicitly considers whether the evidence 

proved at trial established the appellant’s guilt of each element of the offenses charged 

beyond a reasonable doubt:

8

The facts and circumstances proved must, in order to 

warrant a conviction, be such as to establish the guilt of the 

defendant, not necessarily beyond a moral certainty, nor as 

being absolutely incompatible with his innocence, but at 

least beyond a reasonable doubt. 

Commonwealth v. Bausewine, 46 A.2d 491, 493 (Pa. 1946).

However, our Court was also careful to later emphasize that, in undertaking 

sufficiency review, we would not act in the capacity of a “super-jury” to reconsider and 

re-determine the facts of the case adduced at trial and decide, anew, an appellant’s guilt 

or innocence. Therefore, we specifically admonished advocates presenting this type of

claim to our Court to refrain from essentially retrying their cases before our tribunal by 

marshalling facts and evidence of record which favors only their theory of the 

appellant’s innocence and disregards the Commonwealth’s evidence:

 

7

It is noteworthy that appellate review of the sufficiency of the evidence using the 

beyond a reasonable doubt standard became normative at a time when there was 

widespread national interest in the problem of wrongful convictions in the aftermath of 

the notorious Sacco and Vanzetti case. See Chad M. Oldfather, Appellate Courts, 

Historical Facts, and the Civil Criminal Distinction, 57 Vanderbilt Law Review 437 n.141 

(2004).

8 As we discuss infra, the question of whether the defendant’s guilt has been 

established by the Commonwealth for each element of the offense beyond a reasonable 

doubt remains the pivotal inquiry in our analysis of a sufficiency of the evidence claim. 

See Packer, 168 A.3d at 163 n.2.
[J-88-2017] - 23

It has become customary for a defendant in his argument 

before an Appellate Court to base his claims and contentions 

upon his own testimony or that of his witnesses even after a 

jury has found him guilty. This, of course, is basic error. 

After a plea or verdict or guilty, ‘We accept as true all of the 

Commonwealth's evidence upon which, if believed, the jury 

[or a Judge sitting as a jury] could have properly based its 

verdict.’ . . . Moreover, it is well settled that a jury or a trial 

Court can believe all or a part of or none of a defendant's 

statements, confessions or testimony, or the testimony of 

any witness.

Commonwealth v. Kirkland, 195 A.2d 338, 342–43 (Pa. 1963) (quoting Commonwealth 

v. Gooslin, 189 A.2d 157, 158 (Pa. 1963)). Likewise, we have established that the 

Commonwealth, as verdict winner, is entitled to the benefit of all reasonable inferences 

which could be drawn from the evidence it presented at trial. Commonwealth v. Moore, 

157 A.2d 65, 68 (Pa. 1959).9 We regard this deferential manner of appellate review as 

according appropriate respect to the role of the jury or a trial judge sitting without a jury 

to make credibility determinations and factual findings based on their weighing of the 

evidence which they hear firsthand. 

Critically, however, our Court has also long made an exception to this principle of 

appellate deference in recognition of the fact that, in some cases, the entire body of 

evidence introduced at trial which furnished the basis for an appellant’s conviction is so

deficient that it does not reasonably support a finding of guilt beyond a reasonable 

 

9

 The Moore Court incorporated this requirement into our sufficiency of the evidence 

standard of review from a statute, 19 P.S. § 871 (repealed), Act of June 15, 1951, P.L. 

585, § 1, governing the manner in which a court was to dispose of a motion in arrest of 

judgment after a verdict of guilt. Even though this statute has since been repealed, and 

it is well established that, after the passage of the Constitution of 1968 by the voters, 

this Court has exclusive authority to set standards of procedure for all courts in the 

Unified Judicial System, our Court nevertheless retains this aspect of sufficiency review 

in our jurisprudence. 
[J-88-2017] - 24

doubt, as a matter of law. See, e.g., Commonwealth v. Jackson, 66 A.2d 841, 843 (Pa. 

1949) (“Because of the insufficiency of the evidence as a matter of law, the conviction 

cannot stand.”).

Thus, in those atypical situations, our Court has consistently held that we are not 

bound by the factual findings and credibility determinations rendered by the finder of 

fact, and we are compelled in such circumstances to reverse a legally erroneous 

conviction. See Commonwealth v. Libonati, 31 A.2d 95, 97 (Pa. 1946) (holding that 

question of whether the trial evidence established guilt beyond a reasonable doubt is for 

the finder of fact “unless the evidence ‘be so weak and inconclusive that as matter of 

law no probability of fact can be drawn from the combined circumstances’” 

(quoting Commonwealth v. DuBoise, 112 A. 461, 463 (Pa. 1921)); Bausewine, 46 A.2d 

at 493 (“[I]t must be remembered that guilt must be proved and not conjectured. The 

reasonable inference of guilt must be based on facts and conditions proved; it cannot 

rest solely on suspicion or surmise. These do not take the place of testimony.”).

Notably, this principle was applied by our Court in the case of Commonwealth v. 

Woong Knee New, 47 A.2d 450 (Pa. 1946), to reverse a murder conviction when all of 

the circumstantial evidence of record presented at trial, which our Court accepted as 

true, did not establish the defendant’s guilt beyond a reasonable doubt, but, rather, was 

in “equipoise” on this question. That is to say, the trial evidence equally supported two 

reasonable but diametrically opposed ultimate inferences: one that the defendant 

committed the murder, and the second that he did not commit the murder. 

In Woong Knee New, the victim, a proprietor of a laundromat in Chester County, 

was found dead on Sunday, June 24, 1943, lying in a pool of blood on the floor in his 

apartment, having been bludgeoned to death with a hammer. The apartment had been 

ransacked and money that the victim had stored therein was missing. The apartment 
[J-88-2017] - 25

bore gruesome testament to the viciousness of the crime, as there was extensive blood 

spatter evidence throughout. A brown hat with a red feather in the band and a human 

hair inside was discovered on his bed, and a half empty bottle of beer was observed 

sitting on the kitchen table. The defendant, who was an acquaintance of the victim, and 

who visited him fairly regularly, was being detained in New York on an immigration 

violation. He became a suspect in the murder and was questioned extensively by 

detectives. During the interrogation, according to the detectives, the defendant, who 

was of limited fluency in the English language, admitted to being with the victim on 

Sunday morning until 4:00 a.m. and drinking beer in his apartment; however, when the 

detectives inquired further about his interactions with the victim, he terminated the 

interview, claiming illness. While in custody, the defendant, who had quit his job in a 

shipyard earlier in the week, was found in possession of over $1,200 dollars, after he 

denied having any money on his person.

The defendant was arrested and charged with first-degree murder. At trial, the 

Commonwealth introduced a panoply of circumstantial evidence to establish that the 

defendant had murdered the victim: the defendant’s alleged statements to detectives 

admitting that he was with the victim until 4:00 a.m. Sunday morning and that he left for 

New York later that morning at 10:30 a.m., which was characterized by the prosecution 

as flight, and, thus, was evidence of his consciousness of guilt; testimony of witnesses 

who claimed to have seen the defendant in Chester County on the night of the murder; 

testimony from the coroner who approximated the time of the victim’s death at between 

2:30 and 4:30 a.m. based on the progress of rigor mortis in the victim’s body; testimony 

that, on the Saturday evening preceding the murder, a witness saw the defendant

wearing a brown hat that looked like the one found in the victim’s bedroom, which the

Commonwealth theorized was left behind by the defendant in his haste to flee the 
[J-88-2017] - 26

apartment after committing the crime; the fact that there was no evidence of forced 

entry into the apartment, suggesting that the killer was a person, like the defendant, 

known to the victim so that the victim let him into the apartment voluntarily; the victim 

was known to carry large sums of money, and the defendant was, at the time of his 

arrest, found with a substantial sum of money, even though witnesses testified that they 

had never seen the defendant carrying large amounts of cash on his person before, and 

he did not earn substantial pay in his employment. 

The defendant, through cross-examination and the testimony of his own 

witnesses, presented the following evidence to the jury: the coroner’s admission under 

cross examination that he could not fix the exact time of death, given the varying 

speeds with which rigor mortis progresses that are dependent on the age and physical 

condition of the body; testimony that the murder weapon, the hammer, was examined 

by the FBI and no fingerprints or other physical evidence were found on the hammer to 

establish that the defendant had used it to commit the murder; the fact that the 

defendant’s fingerprints were not found on the half-empty beer bottle; expert testimony 

that the hair found in the brown hat was the victim’s, and other testimony showing that,

on the few occasions defendant was observed wearing a brown hat, it did not have a 

red feather in the band; testimony that, despite the considerable amount of blood 

sprayed about in the commission of the crime, the clothes the defendant was wearing at 

the time of his arrest had no trace of blood on them; the testimony of three witnesses 

that the defendant was in New York on the night of the murder gambling with them; the 

testimony of the defendant in which he denied giving the statements which the 

detectives testified that he gave, claiming he did not understand their questions and that 

they physically coerced him; evidence that he was preparing for deportation during the 

week of the murder and had shipped his clothes to New York the preceding Thursday 
[J-88-2017] - 27

before the murder, and had actually left Chester County the following Friday morning at 

1:00 a.m.; testimony that some of the money in his possession was from his savings 

which he had withdrawn from his bank earlier in the week, as he feared he would be 

deported; and bank records showing withdrawals of money, albeit not the entire amount 

he was found with. The jury, after hearing all of this evidence, returned a verdict of guilty 

of the charge of first-degree murder.

Our Court reversed the defendant’s conviction on the grounds that the evidence 

was insufficient for a jury to have been convinced beyond a reasonable doubt that the 

defendant murdered the victim. Specifically, our Court examined all of the abovediscussed evidence, highlighted its contradictory nature, and found that it, at most,

supported two equal but fundamentally inconsistent inferences on this question. Our 

Court noted the testimony of the coroner did not fix the exact time of death and only 

provided a range of times based on rigor mortis in which the death could have occurred; 

thus, this did not prove beyond a reasonable doubt that the defendant was with the 

deceased at the time of death. In any event, our Court reasoned that, even if the 

defendant was in the company of the victim at or near the time of his death, this fact 

alone did not justify an inference that he killed the defendant; rather, it merely raised a 

conjectural suspicion which was in and of itself insufficient to convict. Our Court also 

observed that the money found in the defendant’s possession was just as plausibly 

explained by the withdrawal of his savings and gambling activities to which the 

witnesses testified, as it was that the money was taken from the victim, particularly 

since the money found in defendant’s possession was never identified as belonging to 

the victim. 

As to the question of whether the defendant was in Chester County on the night 

of the murder, or in New York as he claimed, our Court found the evidentiary value of 
[J-88-2017] - 28

the evidence allegedly furnished by the defendant in his statement to the detectives was 

considerably attenuated by the defendant’s poor understanding of the English language. 

Additionally, our Court determined from scrutinizing the testimony of the 

Commonwealth’s witnesses that there was a likelihood that they had the dates wrong as 

to when they observed the defendant in Chester County, which, in our Court’s view, 

called their reliability into question; whereas our Court considered the testimony of the 

defendant’s witnesses placing him in New York to suffer no such infirmity of credibility. 

Our Court found the inference that the defendant was in New York, as he claimed, to be 

bolstered by the uncontradicted evidence that the defendant shipped all of his clothes to 

New York on Thursday, supporting the inference that he knew he would be departing 

soon thereafter, and also the uncontradicted fact that his landlady heard someone 

exiting the building early Friday morning near the time the defendant claimed he had left

for New York.

Critically, our Court found the Commonwealth’s central theory of the case —

that only the defendant had the opportunity to kill the victim as he was the last one to be 

with the victim before he was found dead, and, thus, no one else could have committed 

the crime — was unsupported by the evidence, inasmuch as the Commonwealth failed 

to prove that the defendant was the only person with the exclusive opportunity to kill the 

victim. In this regard, we emphasized that:

All the circumstances proved by the Commonwealth are 

consistent with the theory that some person as yet unknown 

entered [the victim’s] habitation on the morning of June 24th 

and killed him . . . . It was not necessary for this defendant, 

in order to be acquitted, to identify the unknown [person]

who may have committed this murder. It was the duty of the 

Commonwealth in order to obtain the accused’s conviction to 

show circumstances that are consistent only with the 

hypothesis of his guilt.
[J-88-2017] - 29

Woong Knee New, 47 A.2d at 467-68. Our Court also found the Commonwealth’s 

desired inference further undercut by the fact that, despite the savagery of the crime, no 

blood or other evidence was found on defendant’s clothing, and no other physical 

evidence established that the defendant was in the apartment at the time the victim was 

killed. Further, the forensic evidence introduced by the Commonwealth yielded an 

equally if not more likely conclusion that defendant was not in the apartment at any time 

that evening, given that the defendant’s fingerprints were not found on the murder 

weapon or the half-consumed beer. Nor was there any other evidence establishing the 

defendant’s presence in the apartment, inasmuch as the hat was not shown to have 

been his, due to the fact the hair inside it was established to be the victim’s. Our Court 

also pointed out that the defendant lacked a criminal record and the accompanying 

sophistication learned from past criminal enterprises to conceal his crime through the 

use of gloves.

Because the evidence supporting the inference of the defendant’s guilt was in 

equipoise with the evidence supporting the conclusion that the defendant did not 

commit the offense, we held that, in this admittedly rare situation, the Commonwealth 

failed to meet its requisite burden of establishing the defendant’s guilt beyond a 

reasonable doubt. We articulated the parameters of this principle, thusly:

When two equally reasonable and mutually inconsistent 

inferences can be drawn from the same set of 

circumstances, a [finder of fact] must not be permitted to 

guess which inference it will adopt, especially when one of 

the two guesses may result in depriving a defendant of his 

life or his liberty. When a party on whom rests the burden of 

proof in either a criminal or a civil case, offers evidence 

consistent with two opposing propositions, he proves neither. 

Id. at 468.
[J-88-2017] - 30

In the time since our Woong Knee New decision, our Court has likewise reversed

convictions on the grounds the evidence was insufficient, as a matter of law, to establish 

the defendant’s guilt of the offense charged where the entirety of the evidence adduced

at trial, viewed in a light most favorable to the Commonwealth, yields competing 

ultimate inferences equally consistent with the defendant’s innocence as with his guilt, 

thereby rendering the factfinder’s guilty verdict the product of surmise or conjecture. 

See, e.g., Bausewine, 46 A.2d at 493 (reversing defendant’s conviction on the grounds 

of evidentiary insufficiency, as “[t]he facts shown were consistent with defendant's 

innocence, and could reasonably be explained on a theory other than that of guilt”);

Commonwealth v. Garrett, 222 A.2d 902, 905 (Pa. 1966) (evidence insufficient to 

sustain defendant’s robbery conviction since it established only that defendant was in 

the company of four individuals, one of whom robbed a pedestrian, and defendant was 

found and arrested in the vicinity of the robbery immediately thereafter, and defendant 

gave a written statement admitting to committing other crimes and being with the group 

prior to the robbery, but disclaimed participation in the robbery; thus inference that he 

participated in the robbery was “no more cogent than the version of the events 

contained in his statement”); Commonwealth v. Tribble, 467 A.2d 1130 (Pa. 1983) 

(where Commonwealth’s evidence showed that defendant’s fingerprints were on trucks 

which had been broken into, but evidence of record also showed that defendant had 

been in regular physical contact with the trucks as part of his employment, the evidence, 

as a whole, yielded two mutually inconsistent inferences — that defendant transferred 

the fingerprints while breaking into the truck, or that he did so on a previous occasion 

while working — hence it was insufficient to sustain defendant’s conviction).

Although our Court has always conducted sufficiency review in accordance with

the beyond a reasonable doubt standard, until the late 1970s, we did so as an extension 
[J-88-2017] - 31

of our Commonwealth’s long established common law principles, and we had not, prior 

to that time, formally recognized any constitutional underpinnings for it in our 

jurisprudence. However, in 1979, the United States Supreme Court, in Jackson v. 

Virginia, 443 U.S. 307 (1979), established that a criminal conviction must be supported 

by sufficient evidence, i.e., “evidence necessary to convince a trier of fact beyond a 

reasonable doubt of the existence of every element of the offense,” in order to ensure 

that it did not violate the Due Process Clause of the Fourteenth Amendment of the 

United States Constitution. The high Court viewed this requirement to be necessary in 

order to give full effect to its prior holding of In re Winship, 397 U.S. 358 (1970), that the 

requirement that an accused be convicted at trial on proof beyond a reasonable doubt, 

though derived from the common law, was, also, a constitutional guarantee afforded 

every defendant under the Due Process Clause of the Fourteenth Amendment.

The Court explained its rationale for recognizing that appellate sufficiency review 

of a criminal conviction is governed by the Due Process Clause:

The Winship doctrine requires more than simply a trial ritual. 

A doctrine establishing so fundamental a substantive 

constitutional standard must also require that the factfinder 

will rationally apply that standard to the facts in evidence. A 

“reasonable doubt,” at a minimum, is one based upon 

“reason.” Yet a properly instructed jury may occasionally 

convict even when it can be said that no rational trier of fact 

could find guilt beyond a reasonable doubt, and the same 

may be said of a trial judge sitting as a jury . . . . 

Under Winship, which established proof beyond a 

reasonable doubt as an essential of Fourteenth Amendment 

due process, it follows that when such a conviction occurs in 

a state trial, it cannot constitutionally stand.

Jackson, 443 U.S. at 316-18 (footnotes and citations omitted).
[J-88-2017] - 32

The high Court then held that an appellate court must, at a minimum, apply the 

following standard in order to ensure that a criminal conviction does not violate the Due 

Process Clause of the Fourteenth Amendment: 

[The appellate court must determine] whether the record 

evidence could reasonably support a finding of guilt beyond 

a reasonable doubt. But this inquiry does not require a court 

to “ask itself whether it believes that the evidence at the trial 

established guilt beyond a reasonable doubt.” Instead, the 

relevant question is whether, after viewing the evidence in 

the light most favorable to the prosecution, any rational trier 

of fact could have found the essential elements of the crime 

beyond a reasonable doubt. This familiar standard gives full 

play to the responsibility of the trier of fact fairly to resolve 

conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts. 

Once a defendant has been found guilty of the crime 

charged, the factfinder's role as weigher of the evidence is 

preserved through a legal conclusion that upon judicial 

review all of the evidence is to be considered in the light 

most favorable to the prosecution. The criterion thus 

impinges upon “jury” discretion only to the extent necessary 

to guarantee the fundamental protection of due process of 

law.

Jackson, 443 U.S. at 318-19 (citations and footnotes omitted) and (emphasis original).

After Jackson, the high Court reiterated that this standard of review is the 

minimum standard for sufficiency review necessary to comport with the Due Process 

Clause. See Tibbs v. Florida, 457 U.S. 31, 45 (1982) (“The Due Process Clause . . . 

sets a lower limit on an appellate court’s definition of evidentiary sufficiency.”). As our 

Court has previously recognized, because Jackson sets only a minimum federal 

constitutional standard for sufficiency review, “states may, of course, under their own 

laws or constitution, elect to utilize a different more stringent standard of sufficiency

review.” Commonwealth v. Brown, 52 A.3d 1139, 1164 (Pa. 2012); see, e.g., Hale v. 

State, 31 S.W.3d 850 (Ark. 2000) (declining to adopt Jackson and continuing to 
[J-88-2017] - 33

following its traditional requirement under state law that there be “substantial evidence” 

to support a criminal conviction).

Jackson therefore did not effectuate a sea change in Pennsylvania law, 

inasmuch as our Court’s standard of sufficiency review at the time Jackson was decided 

was already utilizing a substantially similar analytical framework. See Commonwealth 

v. Long, 368 A.2d 265 (Pa. 1977) (“[I]n evaluating the sufficiency of the evidence after a 

guilty verdict, all of the evidence, be it direct or circumstantial, must be read in a light 

most favorable to the Commonwealth, and the Commonwealth must be given the 

benefit of all reasonable inferences arising therefrom. But, before a conviction will be 

sustained, ‘the facts and circumstances proved must be of such a character as to 

establish guilt beyond a reasonable doubt.’”). Jackson was significant, however, in that 

it transformed our common law standards for sufficiency review to irreducible federal 

constitutional mandates. As we have previously recognized, our current oft-articulated 

standard of review of a sufficiency-of-the-evidence claim, set forth infra, likewise 

provides a convicted defendant with the due process protections mandated by Jackson. 

See Brown, 52 A.3d at 1164-65 (explaining the parallels between our standard of review 

of evidentiary insufficiency and the Jackson formulation). 

This standard of review is applicable to appellate review of juvenile delinquency 

adjudication. In re Johnson, 284 A.2d 780, 781 (Pa. 1971). We, therefore, evaluate 

J.B.’s sufficiency claim in the instant matter in accordance with our present standard of 

review which inquires “whether the evidence, viewed in the light most favorable to the 

Commonwealth as the verdict winner, supports the [factfinder’s] finding that every 
[J-88-2017] - 34

element of the offense was proven beyond a reasonable doubt.” Commonwealth v. 

Hicks, 156 A.3d 1114, 1123 (Pa. 2017).

10

 

In conducting this review, “the entire record must be evaluated and all evidence 

actually received must be considered.” Commonwealth v. Ratsamy, 934 A.2d 1233, 

1236, n.2 (Pa. 2007); see also Commonwealth v. DeMoss, 165 A.2d 14, 16 (Pa. 1960) 

(“In determining the sufficiency of the evidence to sustain [the defendant’s] conviction it 

is our duty to examine and scrutinize in detail all the evidence in this record and to 

attempt to place in juxtaposition each act, scene and character in this macabre drama” 

(emphasis original)).

When examining the evidence in the trial record in a light most favorable to the 

Commonwealth, we do not make new factual determinations based on the trial evidence 

introduced; rather, we accept the evidence of record, and all reasonable inferences 

drawn therefrom on which the factfinder could properly have based its verdict, as 

factually true. Commonwealth v. Erney, 698 A.2d 56, 58 (Pa. 1997).11 If the evidence 

of record viewed in the light most favorable to the Commonwealth, as well as all 

reasonable inferences derived therefrom, does not establish the defendant’s guilt 

beyond a reasonable doubt of any element of the offense for which he was tried, then 

the evidence is insufficient to sustain the defendant’s conviction as a matter of law, and 

he must be discharged. Commonwealth v. Hart, 28 A.3d 898, 912 (Pa. 2011). The 

 

10 Because evidentiary sufficiency is a pure question of law, our standard of review is de 

novo and our scope of review is plenary. Commonwealth v. Sanchez, 36 A.3d 24, 37 

(Pa. 2011).

11

 As a general proposition, an inference in a criminal prosecution used to establish a 

defendant’s guilt cannot be considered reasonable, and thus comport with the Due 

Process Clause of the United States Constitution, unless the inference is “more likely 

than not to flow from” the basic facts proven by the prosecution on which the inference 

is founded. County Court of Ulster v. Allen, 442 U.S. 140, 165 (1979). 
[J-88-2017] - 35

equipoise principle our Court applied in Woong Knee New, Tribble, and our related

jurisprudence discussed supra, is wholly consistent with these precepts. Thus, if the 

trial evidence of record viewed in the light most favorable to the Commonwealth and all

reasonable inferences drawn from that evidence is only, at most, equally consistent with 

a defendant’s innocence as it is with his guilt, the Commonwealth has not sustained its 

burden of proving the defendant’s guilt beyond a reasonable doubt.12 

IV. Arguments of the Parties

With these legal precepts in mind, we turn to J.B.’s claim that the evidence of 

record from his adjudicatory hearing, and the reasonable inferences therefrom when 

viewed in a light most favorable to the Commonwealth, were insufficient to sustain his 

conviction for first-degree murder. As we have frequently stated, evidence is sufficient 

to sustain a conviction for first-degree murder when the Commonwealth establishes,

beyond a reasonable doubt, “that a human being was unlawfully killed, the defendant 

perpetrated the killing, and the defendant acted with malice and a specific intent to kill.” 

Commonwealth v. Johnson, 160 A.3d 127, 136 (Pa. 2017); 18 Pa.C.S. § 2502(a). J.B.

contests the sufficiency of the evidence supporting the second requirement for a 

homicide conviction — the juvenile court’s finding that he was the individual who killed 

K.M.H. and her unborn child on the morning of February 20, 2009. 

 

12

 We have also held that the evidence in the trial record, viewed in a light most 

favorable to the Commonwealth as well as all reasonable inferences derived therefrom, 

can be so unreliable or contradictory that it is insufficient as a matter of law to convict. 

In such circumstances, the Commonwealth does not meet its burden of proof beyond a 

reasonable doubt, because the evidence and all reasonable inferences rise no further 

than mere suspicion or conjecture. See Commonwealth v. Karkaria, 625 A.2d 1167 

(Pa. 1993) (reversing defendant’s conviction for sexual assault of his stepsister on 

sufficiency grounds, because the victim, the Commonwealth’s chief witness, gave 

unreliable and contradictory testimony as to how and when the assaults occurred).
[J-88-2017] - 36

J.B. principally argues that the evidence was insufficient to sustain his conviction 

because the juvenile court relied on weak and inconclusive forensic evidence to reach 

conclusions that such evidence did not support. First, J.B. highlights the fact that, in his 

view, the evidence of record did not support the juvenile court’s conclusion that the .20 

gauge shotgun recovered from the upstairs bedroom was the murder weapon. In this 

regard, J.B. initially notes that the .20 gauge shotgun shell, which was recovered from 

an area in which he and his father had routinely shot such weapons on previous 

occasions, was found buried under ice and leaves, raising doubt as to whether it had 

been fired from the shotgun on the day of the murder. Further, J.B. points out that the 

Commonwealth’s firearms expert could not directly link the pellets recovered from the 

victim’s body to the shotgun taken from J.B.’s room, inasmuch as the tests which he ran 

showed, at most, that the pellets recovered from the victim’s skull were “consistent” in 

their size, shape, weight, and material with the pellets in an unfired shotgun shell 

located inside the armoire. Appellant’s Brief at 17.

J.B. calls attention to the fact that only 27 pellets were recovered from the 

victim’s body during the autopsy, yet the type of .20 gauge shotgun shell which Trooper 

Burlingame used for comparison purposes contains 225 pellets. Additionally, J.B. notes 

the absence of any blood or tissue residue on the inside of the shotgun, or on its frame, 

even though the forensic pathologist testifying on behalf of the Commonwealth indicated 

only that the amount of blowback would be “less” due to the angle of the entry wound, 

suggesting that there would be at least some blowback if a shotgun was discharged in 

such close proximity to the back of the victim’s head. Id. at 19. Further, J.B. stresses 

that there were no fingerprints or DNA evidence found on the shotgun or the spent shell. 

J.B. also claims that the trial court disregarded the significant fact that there was no 
[J-88-2017] - 37

blood or biological material found on his clothing, which was the same clothing that he 

wore the morning of the shooting.

Turning to the juvenile court’s conclusion that the evidence showed that there 

was a large volume of gunshot residue present on Appellant’s clothing, which, in its 

view, established that he fired the shotgun on the morning of the crime, J.B. points out 

this is contrary to what the Commonwealth’s expert Elena Somple testified to, as she 

related that she found only one particle of residue. Moreover, Somple could not say 

definitively how this residue got onto J.B.’s clothing and noted that such residue could 

linger for months after a firearm was discharged and be transferred from one article of 

clothing to another. J.B. contends that the evidence of record showed that this alternate 

means of transfer was a likely means of explaining how such residue got on his jeans 

given that the evidence showed he had only one winter coat, which he wore all the time, 

and that he wore the coat to a turkey shoot the preceding weekend.

J.B. also maintains that the trial court’s conclusion that, because there was no 

evidence of forced entry into the home, nor any ransacking thereof, this furnished proof 

that he was the perpetrator. J.B. points out that the evidence showed that the victim 

was found in bed and was shot from behind; and, given that the doors to the house 

were unlocked and 48 minutes had elapsed between the time the children left for school 

and the tree cutting crew arrived, an assailant could have entered the home without the 

victim knowing and shot her while she was lying in bed. J.B. concludes by arguing that 

none of the facts upon which the trial court relied, even taken together, overcame his 

presumption of innocence.

The Commonwealth responds by contending that the evidence establishes that 

the .20 gauge shotgun in the residence was the only one which smelled as if it had been 

recently fired, and the pellets and wadding from the victim’s wound were consistent with 
[J-88-2017] - 38

the unfired .20 gauge shotgun shells found in the victim’s bedroom, as was the pristine 

.20 gauge shell found outside. The Commonwealth notes that the juvenile court found 

that J.B. was present in the residence on the morning of the crime, was only one of 

three people with firsthand knowledge of the weapon’s location, had access to the 

weapon and the ammunition, and that his clothing tested positive for gunshot residue. 

Because J.B. had the time and opportunity to shoot his stepmother and then discard the 

shell along the driveway as he made his way to the school bus, all of these factors, in 

the Commonwealth’s view, were sufficient to establish that J.B. was the one who fired 

the fatal shot. The Commonwealth submits that this conclusion is further supported by 

the fact that none of the investigating troopers found any signs of forced entry, and the 

observations of the condition of the snow in the driveway made by the tree service 

employee who called the police on the morning the body was discovered established

that no one traveled up the driveway between the time the children left for school and 

the time he and his crew arrived, particularly since the driveway was the only means of 

access to the property. 

V. Analysis

As developed by the parties, the primary factor relied on by the juvenile court to 

adjudicate J.B. as delinquent was its finding that the .20 gauge shotgun recovered from 

J.B.’s room was “established to be the murder weapon.” Juvenile Court Opinion, 

5/19/15, at 39. However, the evidence of record which the Commonwealth presented 

on this issue, even when accepted as true, did not make this the only reasonable 

inference which could be drawn therefrom. 

First, the Commonwealth’s expert firearms examiner, Paul Burlingame, testified 

that smooth bore shotguns, unlike rifles or pistols, have no unique grooves in their 

barrels, and, hence, they do not produce any identifying marks on shotgun shell pellets 
[J-88-2017] - 39

discharged from a particular shotgun. As a result, he could not perform an 

individualized comparison analysis of the pellets which were recovered from the victim’s 

body with the pellets in the box of shells located in the armoire; nor did he, alternatively, 

perform any comparative metallurgical analysis of the two groups of pellets which could 

have established whether they came from the same manufacturer and the same batch 

of pellets. N.T. Adjudication Hearing, 4/11/12, at 42-43. The extent of his expert 

opinion in this regard was only that the pellets recovered from the victim’s body were 

“consistent” with the pellets in the box of unfired shells, id. at 45 – an unremarkable 

conclusion, given that such a finding could be made any time two groups of pellets from 

any two .20 gauge shotgun shells are compared. Consequently, it appears this

evidence reasonably supports only the inference that the pellets could have come from 

any commercially available .20 gauge shotgun shell, but it is not reasonable to infer that 

they could have only come from the box of shells found in the armoire. See, e.g., Long, 

368 A.2d at 267 (expert testimony that pieces of forensic evidence found at the crime 

scene and on the defendant’s person were merely “consistent with” one another is not 

proof beyond a reasonable doubt that they originated from the same source).

Second, the juvenile court supported its finding that the .20 gauge shotgun 

recovered from J.B.’s room was the murder weapon because the state police officers 

who examined it opined that it “smelled” as if it had been recently fired. However, this 

testimony did not reasonably support the sole inference that the shotgun had been fired 

on the morning of the murder, inasmuch as both officers acknowledged they were not 

offering an expert opinion on when the shotgun had been fired, and, in fact, admitted 

they could not determine with any degree of scientific certainty exactly when the 

shotgun had been fired based on its smell. N.T. Adjudication Hearing, 4/10/12, at 130. 

Given the scant utility of the troopers’ testimony in determining when the shotgun had 
[J-88-2017] - 40

last been fired, the testimony of J.B.’s father, that J.B. had repeatedly fired this weapon 

at a turkey shoot in an indoor facility less than a week before it had been seized from 

his room, which was confirmed by the state police, yields an equally likely inference that 

the shotgun odor lingered from its use at the turkey shoot. 

In point of fact, the trial evidence introduced through the Commonwealth’s 

witnesses and accepted as true supported an equally reasonable conclusion that this 

.20 gauge shotgun was not the murder weapon: First, the forensic pathologist 

concluded that the shotgun which delivered the lethal blast to the victim was discharged 

from a distance of less than two inches from her neck, and, second, the barrel of the 

gun was in close proximity to the victim’s skin at the time of discharge; however, when 

the .20 gauge shotgun retrieved from J.B.’s room was examined by the state police 

crime laboratory, no blood, skin, or other biological material was detected in the interior 

of the shotgun barrel, on the exterior of the barrel, or on the frame of the weapon. 

Although the juvenile court and two of the three judges on the Superior Court 

panel below placed great emphasis on the testimony of the forensic pathologist, Dr. 

Smith, that the amount of this blowback of blood and other tissue would be minimized 

by the angle of the wound, critically, as argued by J.B., Dr. Smith, in his testimony, did 

not rule out the possibility of blowback. Indeed, Dr. Smith found during his examination 

of the victim that the vast majority of the shotgun pellets had, after encountering the 

bones of the victim’s skull, rebounded backwards towards the direction of their entry 

and became lodged in the back of the victim’s neck. Id. at 162. Dr. Smith agreed that 

the shot which entered the back of the victim’s head could have, upon impacting the 

bones of the skull, caused tissue and blood to be propelled back through the channel 

created by the shot and into the barrel of the gun, and he opined that it was plausible 
[J-88-2017] - 41

under these circumstances that there would have been blowback. Id. at 170-72, 191-

92.

To explain the absence of such residual evidence, the Commonwealth theorizes 

that J.B. may have wiped the gun clean of any such evidence after he used it to commit 

the murder, but this is a wholly speculative assertion which is not supported by any 

evidence of record. Indeed, the evidence of record regarding the time frame in which 

the events of that morning unfolded raises serious questions as to whether J.B., then 

11, would have had sufficient time to perform such a thorough cleaning of the murder 

weapon in order to eliminate all traces of forensic evidence prior to his catching the 

school bus. Further, when J.B. was arrested, he was still wearing the clothes that he 

wore to school on the morning of the shooting. Despite the undisputed fact that the 

murder weapon was discharged when it was almost touching the victim’s head, and the 

large quantity of blood lost by the victim as a result from the wound, when J.B.’s clothes 

were tested, no blood stains or other biological material was found on them. N.T. 

Adjudication Hearing, 4/11/12, at 132-34. 

The juvenile court coupled its conclusion that the shotgun recovered from J.B.’s 

room was the murder weapon with its other findings: that only a limited number of 

people knew where the .20 gauge shotgun recovered from J.B.’s room was kept; that 

J.B. knew how to handle a shotgun; that he had a large amount of gunshot residue on 

his clothes which he was wearing on the day of the murder; the presence of an 

unweathered .20 gauge shotgun shell found the day after the murder near the driveway 

which J.B. walked down on his way to catch the school bus; the fact that only J.B., the 

victim, and the victim’s children were present in the family home after J.B.’s father left 

for work; and the lack of evidence of any forced entry to the family home. The court 

concluded these facts, taken together, support its ultimate determination that the 
[J-88-2017] - 42

evidence was sufficient to convict J.B. beyond a reasonable doubt of the murders. We 

disagree.

We note that J.B.’s knowledge of where his own shotgun was stored becomes 

relevant to the question of his guilt only if the juvenile court’s conclusion that this 

particular shotgun was the murder weapon was adequately founded on the evidence of 

record. However, for the reasons discussed above, the evidentiary record does not 

make the juvenile court’s inference – that this was, in fact, the murder weapon – more 

likely than the equally reasonable inference that it was not, and hence it establishes, at 

most, two equally contrary conclusions. 

Once the juvenile court concluded that the shotgun was the murder weapon, that

court examined the other evidence which it viewed as establishing beyond a reasonable 

doubt that J.B. used it in the commission of the murder. First, the court inferred that 

J.B. knew how to handle a shotgun because he had previously fired shotguns with his 

father. This fact, in and of itself, however, does not reasonably lead to the exclusive 

inference that J.B., as an 11-year-old boy, had the requisite skills in handling such 

weapons to kill the victim in the manner in which the Commonwealth postulated she 

was slain. Indeed, the uncontroverted evidence presented at the adjudication hearing 

establishes that J.B.’s abilities to operate his shotgun were limited. His father recounted 

that, at the turkey shoot, J.B. could not independently load the shotgun, and that he had 

to load and unload the gun for J.B. each time he fired it. N.T. Adjudication Hearing, 

4/11/12, at 145. Thus, an equally plausible inference which can be drawn from this 

undisputed evidence is that J.B. lacked the capability to surreptitiously retrieve the 

shells from the armoire, quickly load them into the shotgun, and fire one lethally precise 

shot into the victim in the calculated and efficient manner which the Commonwealth 

contended he acted. 
[J-88-2017] - 43

The juvenile court next heavily relied on the fact that two particles of gunshot 

residue, and various one component or two component particles of lead, bismuth, and 

antimony — the three chemical elements which, when joined together, comprise such 

residue — were found on J.B.’s shirt and pants in sufficient quantity to infer that such 

particles could only have been deposited there by his firing of a shotgun on the morning 

of the victim’s death. However, this evidence, at best, supports only a lesser, more 

equivocal inference. Although the juvenile court and Superior Court opinions place 

great emphasis on the numbers of “single component,” or double component,

components of gunshot residue found on defendant’s clothes, the mere presence of 

such particles does not scientifically establish that they originated from the discharge of 

a firearm. As the Commonwealth’s expert, Somple, specifically noted in her testimony, 

such single or double component particles “could come from other sources.” Id. at 10.

Moreover, Somple provided unrebutted testimony that gunshot residue can be 

deposited on clothing if it “came into contact with something that had gunshot residue 

on it.” Id. at 21. The record establishes that, on the day of his arrest, J.B. was wearing, 

over his clothing, the jacket he wore while shooting his gun at the turkey shoot a week 

earlier. Somple explained that the presence of gunshot residue on clothing can have 

enduring longevity, noting: “[i]f I discharged a firearm and took my clothes off, put them 

in the corner of my room and they were undisturbed for a month, two months, a year, 

and then tested those clothes, you could still find gunshot residue on them.” Id. at 23. 

Additionally, Somple observed that, when a gun is discharged inside of an enclosed 

structure like a house, one would expect to find “a lot of gunshot residue,” due to the 

large cloud of particles of gunshot residue generated by the firing of the weapon and the 

lack of airflow to disperse that cloud. Id. at 28. This evidence, presented through the 

Commonwealth’s own expert witness, therefore, reasonably supports at least an equally 
[J-88-2017] - 44

likely inference that the two particles of gunshot residue were deposited on J.B.’s 

clothing through means other than the firing of his shotgun inside the victim’s room.

Additionally, the juvenile court determined that a spent shotgun shell found by 

investigating officers early in the morning the day after the murder, along the fence line 

running parallel to the driveway down which the children walked on their way to catch 

the school bus, reasonably supported an inference that this was the shell J.B. had used 

in the murder, and that he had discarded it on the way to the bus in an effort to conceal 

it. The juvenile court’s determination rested on the apparently un-weathered condition 

of the shell and the fact that it was of the same general type as the unused shells found 

in the box in the armoire. However, once more, other uncontradicted evidence of record 

reasonably supports an equally strong inference that the shell was not discarded by J.B. 

on the morning of the murder. 

First, the shell was found in a location where J.B. and his father routinely fired 

their weapons during target practice, and there were other older shells of the same type 

found nearby on the property. N.T. Adjudication Hearing, 4/11/12, at 142. Second, 

when the spent shell was discovered by the investigating officers, it was buried 

underneath frozen leaves, which were, in turn, covered by ice and snow, thereby 

diminishing the likelihood that it had attained that position by having been thrown there 

by J.B. the previous day during his walk to the bus. Id. at 210. Importantly, the 

uncontroverted testimony of the school bus driver, who observed J.B. and his sister for 

the entire time they were walking toward the bus, was that he did not observe J.B. throw 

anything away during his journey, or leave the driveway. N.T. Adjudication Hearing, 

4/10/12, at 154, 156. Thus, all of this evidence, accepted as true, supports the equally 

reasonable inference that the shell had been deposited there at some time prior to the 
[J-88-2017] - 45

day of the shooting, and that it was not the shell which was used in the killing of the 

victim. 

Finally, the evidence that J.B., the victim, and the victim’s children were present 

in the family home after J.B.’s father left for work, and the lack of evidence of any forced 

entry to the family home, does not yield the sole reasonable inference that J.B. was the 

murderer. As we have held, mere presence at the scene of a murder before, or even 

during its commission, does not establish sufficient evidence of a defendant’s guilt of 

that offense. Woong Knee New, supra. Additionally, the apparent lack of evidence of 

forced entry does not, as the juvenile court suggests, lead only to a reasonable 

inference that no one entered the home after the children departed for school. Notably, 

the evidence of record was uncontradicted that the home was unlocked, including the 

front door near the victim’s bedroom, which was found to have blood on its frame, and, 

after J.B. and his sister departed for school, a full 45 minutes elapsed before the tree 

cutting crew arrived at the premises. This afforded a sufficient amount of time for an 

intruder to surreptitiously enter the premises of the farmhouse, kill the victim, and then 

leave.13 

Most critically, however, a reasonable inference that J.B. was not the person who 

fired the lethal shotgun blast which killed the victim can be drawn from a key and 

 

13 As set forth above, the evidence was equivocal on the existence of tire tracks in the 

driveway at the time Cable arrived on the premises to begin work; additionally, the 

evidence of record showed, contrary to the Commonwealth’s contention, the house 

was accessible from the road by foot as well, and there was no evidence regarding the 

existence or absence of footprints around the house. Moreover, and most importantly, 

as we stated in Woong Knee New, “[i]t was not necessary for this defendant, in order to 

be acquitted, to identify the unknown [person] who may have committed the murder. It 

was the duty of the Commonwealth in order to obtain the accused’s conviction to show 

circumstances that are consistent only with the hypothesis of his guilt.” 47 A.2d at 467-

68.
[J-88-2017] - 46

unrebutted evidentiary factor — the fact that J.B.’s 7-year-old stepsister J.H. was 

present in the home with J.B. the entire morning on the day of the murder before they 

left for school. Had J.B. discharged his shotgun inside of the family home, as the 

Commonwealth claims, it is reasonable to conclude that the cacophonous noise from 

the discharge would have been heard by J.H., who was downstairs on the first floor of 

the home watching TV in the room near where the victim was murdered. Yet, when J.H. 

was questioned later that morning at school by Trooper Wilson, she recounted nothing 

out of the ordinary regarding what transpired at home, and, notably, she did not testify 

at J.B.’s adjudication hearing on behalf of the Commonwealth. Likewise, the school bus 

driver who observed both J.B. and J.H. on the morning of the murder observed nothing 

unusual about how the children were acting; rather, he remembered they behaved as 

they did every other morning when he picked them up. N.T. Adjudication Hearing, 

4/10/12, at 152-62. This evidence therefore gives rise to the equally reasonable

inference that J.B. did not use his shotgun inside the farmhouse to kill his stepmother. 

In sum, then, all of the Commonwealth’s forensic and eyewitness testimony, and 

all reasonable inferences derived therefrom, viewed in a light most favorable to it, was, 

at best, in equipoise, as it was equally consistent with two possibilities: first, that a 

person or persons unknown entered the house in which J.B.’s stepmother was sleeping 

and shot her to death after J.B. and his sister had left for school on the morning of 

February 20, 2009; second, the Commonwealth’s theory that, after J.B.’s father left for 

work, J.B., in full view of J.H., walked upstairs and retrieved a .20 gauge shotgun from 

his bedroom, walked back downstairs, retrieved a shotgun shell from a box of shells 

located in an armoire in the victim’s bedroom on which the television set she was 

watching was located, shot the victim in the back of the head as she lay on the bed 

facing that television, took the shotgun back upstairs and returned it to its former 
[J-88-2017] - 47

position — after wiping it clean of any physical evidence caused by the shooting — then 

caught the school bus with J.H., and went to school as if it were any other normal 

morning. The Commonwealth’s evidence was, therefore, insufficient as a matter of law

to overcome Appellant’s presumption of innocence, and the juvenile court’s adjudication 

of his delinquency for these serious crimes must be reversed. See Woong Knee New,

47 A.2d at 468 (“When a party on whom rests the burden of proof in either a criminal or 

a civil case, offers evidence consistent with two opposing propositions, he proves 

neither.”); Tribble, 467 A.2d at 1132 (“[S]ince the testimony presented by the 

Commonwealth to establish appellant's guilt is at least equally consistent with 

appellant's innocence, there is insufficient evidence to sustain appellant's conviction.”).14 

The order of the Superior Court affirming the juvenile court’s order of disposition 

is reversed, Appellant’s adjudication of delinquency is vacated, and Appellant is 

discharged.

Chief Justice Saylor and Justice Dougherty join the opinion.

Justice Mundy files a concurring opinion in which Justice Baer joins.

Justices Donohue and Wecht did not participate in the consideration or decision 

of this case.

 

14 Given our disposition of Appellant’s sufficiency of the evidence claim, we need not 

address his weight of the evidence claim.