J-S55044-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: J.J., A MINOR, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

APPEAL OF: J.J., A MINOR

No. 2071 EDA 2015

Appeal from the Dispositional Order June 9, 2015

In the Court of Common Pleas of Philadelphia County

Juvenile Division at No(s): CP-51-JV-0003239-2014

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 18, 2016

J.J. (hereinafter “Juvenile”) appeals from the dispositional order 

entered in the Court of Common Pleas of Philadelphia County on June 9, 

2015, following his delinquency adjudication for Robbery, Conspiracy, Theft 

by Unlawful Taking, and Simple Assault.1 Following a review of the record, 

we affirm. 

The juvenile court set forth the relevant procedural and factual history 

herein as follows:2

____________________________________________

1 18 Pa.C.S.A. §§ 3701(a)(1)(ii); 903(c); 3921(a); 2701(a), respectively. 

The Juvenile Court dismissed a charge for Possession of an Instrument of 

Crime, 18 Pa.C.S.A. § 907(a). 

2 The facts and procedural history are derived from the transcripts of 

Juvenile’s adjudication hearing at which time Juvenile was tried together 

(Footnote Continued Next Page)
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PROCEDURAL HISTORY

Prior to their juvenile delinquency hearing co-defendants 

[Juvenile] and JG jointly filed a motion to suppress in court and 

out of court identification evidence alleging the process and 

identifications violated the co-defendants' due process rights. 

The motion was denied and an adjudication hearing was held 

wherein defendants were adjudicated delinquent of robbery as a 

felony of the second degree, conspiracy, theft, and simple 

assault. This appeal followed.

STATEMENT OF FACTS

At the suppression hearing and subsequent trial, the 

Commonwealth offered the testimony of the complainant and 

Philadelphia Police Officers Joseph Campbell, Colin Gershert 

[sic], and Jeffrey Thompson. The evidence established the 

following:

On December 10, 2014, at approximately 10:30 P.M. the 

complainant was walking in the area of the 6900 Block of Haines 

Street in Philadelphia, Pennsylvania. (N.T. 1/20/15 pgs. 62-63) 

As the complainant was walking, five young males approached 

him. Id. One of the males approached the complainant from the 

back, and placed his arm around the complainant's body. Id. 

Another male held an unknown object to the complainant's neck 

and said "give it up old head, give it up." (N.T. 1/20/15 pg. 63) 

The other three males went through the complainant's pants 

pockets. Id. The complainant testified that at this moment he 

thought he was going to get shot for nothing. (N.T. 1/20/15 pg. 

66) After approximately three minutes, there was a loud noise in 

the area and the males scattered. (N.T. 1/20/15 pg. 63) The 

complainant was able to see that all of the males were young, 

black, and wearing dark hooded sweatshirts. (N.T. 1/20/15 pgs. 

70-71) One male in the group stood out to the complainant 

because he was wearing a red hooded sweatshirt. (N.T. 1/20/15 

pg. 70)

The complainant then went directly to his home and 

contacted the police. (N.T. 1/20/15 pgs. 63, 67, 10) Police 

Officers arrived at the complainant's home within five minutes. 

(Footnote Continued) _______________________

with his codefendant, J.G. J.G.’s case is on appeal separately with this Court 

at No. 1884 EDA 2015. 
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(N.T. 1/20/15 pgs. 8-9) There, the complainant told the Officers 

about the incident and described the males. (N.T. 1/20/15 pgs. 

9, 84) Based on the description the complainant provided, the 

Officers sent out a flash description of the five assailants. (N.T. 

1/20/15 pg. 9)

Officer Goshert and his partner Officer Thompson received 

the flash information while at a location just two blocks from the 

6900 block of Haines Street. (N.T. 1/20/15 pgs. 27) At that 

location, Officer Goshert observed a group of three young black 

males matching the flash information, including the [Juvenile], 

who was wearing a red hood sweatshirt, the defendant JG who 

was wearing a dark hooded sweatshirt, and another young black 

male wearing a dark hooded sweatshirt. Id. As Officer Goshert 

and his partner, both in full uniform, approached the males, two 

fled on foot while [Juvenile] remained. (N.T. 1/20/15 pgs. 27-

28) Officer Thompson pursued defendant JG and the other male, 

while Officer Goshert detained [Juvenile] so that the complaining 

witness could be transported to the location to make an 

identification. (N.T. 1/20/15 pg. 30) After a brief chase, 

defendant JG was apprehended and detained by Officer 

Thompson so that the complaining witness could be transported 

to make an identification. The complainant positively identified 

[Juvenile] as the same individual wearing the red hooded 

sweatshirt involved in the incident, and defendant JG as one of 

the other males wearing a dark hooded sweatshirt involved in 

the incident. Id. [The juveniles] were then handcuffed and 

placed under arrest. (N.T. 1/20/15 pgs. 33 -34)

Juvenile Court Opinion, filed 11/9/15, at 1-3. 

On January 20, 2015, the juvenile court heard testimony on Juvenile’s 

and his co-defendant’s motion to suppress identification and an adjudication 

hearing immediately followed. At the conclusion of the hearing, the juvenile 

court held the matter under advisement. Ultimately, the juvenile court 

entered an order adjudicating Juvenile delinquent of one count each of the 

aforementioned charges on April 29, 2015. Juvenile did not file a postdispositional motion. 
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On July 8, 2015, Juvenile filed a notice of appeal. On July 20, 2015, 

the juvenile court ordered Juvenile to file a concise statement of matters 

complained of on appeal pursuant to Pa.R.A.P. 1925(b) “no later than 21 

days after entry of such order (on or before August 11, 2015).”3 On August

11, 2015, Juvenile filed his Statement of Errors Complained of on Appeal 

along with his Request for an Extension of Time to File a Supplemental 

Statement of Errors Complained of on Appeal wherein he indicated that he 

had not yet received the notes of testimony from the adjudicatory hearing 

and that upon receiving the complete record in the matter, he may to raise 

additional challenges. These documents were filed together with a proof of 

service; however, the juvenile court never ruled on Juvenile’s petition for 

extension of time. 

Notwithstanding, on September 10, 2015, Juvenile filed his 

Supplemental Statement of Errors Complained of on Appeal. In his 

supplemental statement, Juvenile raised an additional claim of juvenile court 

error for permitting the complainant to read into evidence and testify 

regarding his statement to police. He also reiterated therein the two 

challenges to the juvenile court’s denial of his suppression motion and his 

challenge to the sufficiency of the evidence that he had asserted in his initial 

concise statement. With regard to the latter, Juvenile expanded his 

____________________________________________

3 As we will discuss more fully infra, a timely concise statement was due on 

or before August 10, 2015.
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sufficiency challenge to include the crimes of Conspiracy, Theft and Simple 

Assault. The juvenile court filed an opinion pursuant to Pa.R.A.P. 1925(a) on 

November 9, 2015, wherein it considered the merits of the four issues 

Juvenile presented in his Supplemental Statement of Errors Complained of 

on Appeal. 

In his brief, Juvenile presents the following Statement of the Questions 

Involved:

1. Was not the evidence insufficient as a matter of law to 

prove robbery, conspiracy, theft and simple assault beyond a 

reasonable doubt because [Juvenile’s] involvement is based 

upon nothing more than a general similarity of clothing and the 

properly admitted circumstantial evidence amounted to little 

more than [Juvenile’s] proximity to another male who was also 

identified based upon clothing exclusively?

2. Did not the [juvenile] court err in denying [Juvenile’s] 

motion to suppress the out-of-court identification because the 

show up was unnecessarily suggestive and not otherwise reliable 

in violation of the Due Process Clauses of the Pennsylvania and 

Federal Constitutions?

3. Did not the [juvenile] court err in admitting the 

complainant’s statement to the police over objection where the 

complainant had neither been impeached nor did he testify to a 

lack of recollection? 

Brief for Juvenile at 4.4 

____________________________________________

4

In a footnote, Juvenile explained that upon further consideration he had 

chosen to abandon his second suppression challenge because officers had 

reasonable suspicion to detain him for investigation. Brief for Juvenile at 4. 

n. 1.

(Footnote Continued Next Page)
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At the outset, we note that while counsel for Juvenile, apparently 

relying upon the erroneous instruction of the juvenile court, indicated that 

he had until August 11, 2015, to file his Pa.R.A.P. 1925(b) statement, see 

Supplemental Statement of Errors Complained of on Appeal, filed 9/10/15, 

at ¶2, twenty-one days from July 21, 2015, was Monday, August 10, 2015. 

Furthermore, although Juvenile presented a challenge to the sufficiency of 

the evidence and the juvenile court’s denial of his suppression motion in his 

Statement of Errors Complained of on Appeal, Juvenile did not raise therein 

the third question he presents for our review. Moreover, the sufficiency 

challenge Juvenile initially asserted pertained only to the robbery 

adjudication, while he lists conspiracy, theft and simple assault in his 

supplemental statement. As such, we must consider whether Juvenile’s 

initial concise statement and the first and third issues he presents for this 

Court’s review, which he first raised in his Supplemental Statement of Errors 

Complained of on Appeal, were properly preserved for our review. 

We begin by noting it is well-settled in Pennsylvania that the failure to 

file a timely Rule 1925(b) statement automatically results in waiver of all 

issues on appeal, regardless of the length of the delay in filing. See 

Commonwealth v. Hill, 609 Pa. 410, 427, 16 A.3d 484, 494 (2011). We 

further acknowledge that Rule 1925(b) provides that appellants may seek an 

(Footnote Continued) _______________________
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extension of time in which to file a Rule 1925(b) statement beyond the initial 

timeframe ordered by the trial court.5 However, this Court has concluded 

that a late 1925(b) statement by a criminal defendant represented by 

counsel constitutes per se ineffectiveness, and the proper remedy is to 

remand for the filing of such a statement nunc pro tunc. Commonwealth v. 

Grohowski, 980 A.2d 113, 114 (Pa.Super. 2009), citing Commonwealth 

v. Burton, 972 A.2d 428, 433 (Pa.Super. 2009) (en banc); see also

Commonwealth v. Myers, 86 A.3d 286, 289 (Pa.Super. 2014) (observing 

that if appellant's Rule 1925(b) statement were late, “we would be obligated 

as a matter of our rules of procedure to deem appellate counsel ineffective[] 

____________________________________________

5 Rule 1925. Opinion in Support of Order

...

(b) Direction to file statement of errors complained of on appeal; 

instructions to the appellant and the trial court.

...

(2) Time for filing and service. The judge shall allow the appellant at least 21 

days from the date of the order's entry on the docket for the filing and 

service of the Statement. Upon application of the appellant and for 

good cause shown, the judge may enlarge the time period initially 

specified or permit an amended or supplemental Statement to be 

filed. Good cause includes, but it is not limited to, delay in the 

production of a transcript necessary to develop the Statement so 

long as such delay is not attributable to a lack of diligence in 

ordering or paying for such transcript by the party or counsel on 

appeal. In extraordinary circumstances, the judge may allow for the filing of 

a Statement of amended or supplemental Statement nunc pro tunc.

Pa.R.A.P.1925(b)(2) (emphasis added).
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and to remand for the filing of a Statement nunc pro tunc.”) citing

Pa.R.A.P.1925(c)(3). 

Clearly, contrary to counsel’s apparently good-faith belief the initial 

concise statement had been timely filed in light of the juvenile court’s 

erroneous directive, Juvenile’s Statement of Errors Complained of on Appeal 

was untimely; however, he followed the proper procedure for seeking an 

extension of time in which to file a supplemental concise statement along 

with a proposed order. He also presented a good reason for requesting an 

extension of time. In addition, Juvenile promptly filed his supplemental 

statement approximately thirty days after the initial filing, and the juvenile 

court considered the issues he raised therein. Inexplicably, the juvenile 

court never entered an order granting or denying Juvenile’s petition, yet it 

did issue a Rule 1925(a) opinion wherein it considered the four issues 

Juvenile presented in his supplemental statement without a discussion of 

Juvenile’s possible waiver of those claims in light of the aforementioned 

procedural anomalies. As such, we find Juvenile properly preserved his 

claims for our review, and we will proceed to a consideration of the merits 

thereof. See Commonwealth v. Burton, 973 A.2d 428, 433 (Pa.Super. 

2009) (stating that even where a concise statement is untimely filed, this 

Court may decide the appeal on the merits if the trial court had adequate 

opportunity to prepare an opinion addressing the issues being raised on 

appeal). 
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Juvenile first challenges the sufficiency of the evidence to sustain his 

delinquency adjudication. When examining a challenge to the sufficiency of 

the evidence supporting an adjudication of delinquency, this Court employs a 

well-settled standard of review:

When a juvenile is charged with an act that would 

constitute a crime if committed by an adult, the Commonwealth 

must establish the elements of the crime by proof beyond a 

reasonable doubt. When considering a challenge to the 

sufficiency of the evidence following an adjudication of 

delinquency, we must review the entire record and view the 

evidence in the light most favorable to the Commonwealth.

In determining whether the Commonwealth presented sufficient 

evidence to meet its burden of proof, the test to be applied is 

whether, viewing the evidence in the light most favorable to the 

Commonwealth and drawing all reasonable inferences therefrom, 

there is sufficient evidence to find every element of the crime 

charged. The Commonwealth may sustain its burden of proving 

every element of the crime beyond a reasonable doubt by wholly 

circumstantial evidence.

The facts and circumstances established by the 

Commonwealth need not be absolutely incompatible with a 

defendant's innocence. Questions of doubt are for the hearing 

judge, unless the evidence is so weak that, as a matter of law, 

no probability of fact can be drawn from the combined 

circumstances established by the Commonwealth.

In re V.C., 66 A.3d 341, 348–349 (Pa.Super. 2013) (quoting In re A.V., 48 

A.3d 1251, 1252–1253 (Pa.Super. 2012)). The finder of fact is free to 

believe some, all, or none of the evidence presented. Commonwealth v. 

Gainer, 7 A.3d 291, 292 (Pa.Super. 2010).

The Pennsylvania Crimes Code defines Robbery, in relevant part, as 

follows:

(a) Offense defined.

(1) A person is guilty of robbery if, in the course of 

committing a theft, he:
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* * *

(iv) inflicts bodily injury upon another or threatens 

another with or intentionally puts him in fear of immediate 

bodily injury;

(v) physically takes or removes property from the 

person of another by force however slight;

18 Pa.C.S.A. § 3701(a)(1). “Bodily injury” means an “impairment of physical 

condition or substantial pain.” Id. § 2301.

The Crimes Code also defines Theft by Unlawful Taking or Disposition 

as follows:

(a) Movable property.—A person is guilty of theft if he 

unlawfully takes, or exercises unlawful control over, movable 

property of another with intent to deprive him thereof.

18 Pa.C.S.A. § 3921(a).

One is guilty of conspiracy to commit a crime with another person or 

persons if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one 

or more of them will engage in conduct which constitutes 

such crime or an attempt or solicitation to commit such 

crime; or

(2) agrees to aid such other person or persons in the planning 

or commission of such crime or of an attempt or 

solicitation to commit such crime.

18 Pa.C.S.A. § 903(a). This requires proof that: 1) the defendant entered 

into an agreement with another to commit or aid in the commission of a 

crime; 2) he shared the criminal intent with that other person; and 3) an 

overt act was committed in furtherance of the conspiracy. Commonwealth 

v. Devine, 26 A.3d 1139, 1147 (Pa.Super. 2011). “This overt act need not 
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be committed by the defendant; it need only be committed by a coconspirator.” Commonwealth v. Murphy, 795 A.2d 1025, 1038 (Pa.Super. 

2002) (citation omitted).

Finally, the Crimes Code provides the following definition for Simple 

Assault:

(a) Offense defined.—Except as provided under section 2702 

(relating to aggravated assault), a person is guilty of assault if 

he:

(1) attempts to cause or intentionally, knowingly or 

recklessly causes bodily injury to another[.]

18 Pa.C.S.A. § 2701(a)(1).

A review of Juvenile’s argument pertaining to his sufficiency of the 

evidence claim, wherein he casts the evidence in a light most favorable to 

himself, reveals that he has failed to list, let alone discuss, the 

aforementioned elements of robbery, conspiracy, theft by unlawful taking or 

simple assault or explain why the evidence did not establish each of those 

elements beyond a reasonable doubt. Indeed, 

[i]nstead of proffering a proper sufficiency claim, Appellant 

instead makes assertions that correspond with an attack raising 

weight of the evidence claims. See Commonwealth v. 

Dougherty, 580 Pa. 183, 860 A.2d 31, 36 (2004) (holding 

sufficiency claim that “there is no credible evidence” is not 

sufficiency claim at all; it is a weight claim); Commonwealth v. 

Small, 559 Pa. 423, 741 A.2d 666, 672 (1999) (stating 

appellate court will not review sufficiency claim where argument 

in support of claim goes to weight, not sufficiency, of the 

evidence); Commonwealth v. Mack, 850 A.2d 690, 693 

(Pa.Super. 2004) (providing no relief where appellant alleged 

sufficiency but argued weight; weight issue was reserved for 

fact-finder below). 
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Commonwealth v. Sherwood, 603 Pa. 92, 106-07, 982 A.2d 483, 492 

(2009). Juvenile’s attack on weight rather than sufficiency is clear from 

statements like the following contained in his brief:

The record simply does not support the trial court’s 

conclusion that [the complainant] made an identification of 

anything more than a pair of hoodies and some pants. The 

[juvenile] court’s conclusion rests on nothing more than a guess.

Brief for Juvenile at 25. 

Although the failure to provide this Court with appropriate argument 

and citation to applicable legal authority usually results in waiver, see

Sherwood, 603 Pa. at 107, 982 A.2d at 492; Commonwealth v. Spotz,

552 Pa. 499, 716 A.2d 580, 585 n. 5 (1998), to the extent Juvenile develops 

an argument pertaining to the sufficiency of the identification evidence, no 

relief is due. 

Juvenile’s argument centers around the fact that the complainant was 

confused in his identification of Juvenile and J.G. at the hearing and 

admitted he identified them to police based upon their clothing. Juvenile 

stresses the complainant’s confusion was evident at the hearing, at which 

time neither Juvenile nor J.G. was wearing a hoodie, and maintains that the 

complainant, in fact, never identified him as an assailant. Brief for Juvenile 

at 13-14, 19-20. Juvenile posits “[h]e was adjudicated because when [the 

complainant] saw a young man in a red hoodie, he mistakenly believed it 

was the same hoodie worn by the person who robbed him fifteen minutes 
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earlier.” Id. at 20. Juvenile spends the bulk of argument on this issue 

relaying statistics regarding mistaken identifications and discussing caselaw 

from this and other jurisdictions in this regard as well as caselaw wherein 

the evidence failed to establish probable cause to arrest. Id. at 20-32. For 

instance, he notes that red and black hoodies are “common apparel in the 

United States” and faults the complainant for failing to mention zippers, 

logos, fabric and pocket type or color shade. He posits this is particularly 

relevant in a populated area such as Philadelphia, where dozens of people in 

the area may have matched the complainant’s description. Id. at 23-24. 

Rather than challenge the sufficiency of the evidence to support any of 

the applicable elements of any offense, Juvenile contends the evidence was 

insufficient to prove that he was one of the individuals who robbed the 

complainant. As such, we need not conduct a thorough review of the 

evidence to determine whether it can support a finding that all of the 

elements of the offenses has been met. Rather, we will focus on the specific 

sufficiency issue raised by Appellant: whether the evidence was sufficient to 

establish that the complainant properly identified juvenile. When viewed in 

a light most favorable to the Commonwealth at the adjudication hearing, we 

find it was. 

In Commonwealth v. Orr, 38 A.3d 868, 874–75 (Pa.Super. 2011) 

this Court stating that despite a victim’s inability to make an in-court 

identification of a defendant, a review of entire record including 
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circumstantial evidence, the victim’s description of common items of clothing 

and of general physical characteristics, along with the victim’s unequivocal 

out-of-court-identification to police provided shortly after the crime, may be 

considered to establish the identity of that defendant. This Court stressed 

that the victim at no time stated he had misidentified the appellant shortly 

after the incident, but simply indicated he had been unable to view clearly 

the face of one of the perpetrators during the robbery. We further noted 

that the trial court, as the finder of fact, had heard the testimony of all 

witnesses, was free to make credibility determinations and determined the 

evidence had been sufficient to sustain the convictions and that this Court’s 

function was not to reevaluate or disturb those credibility determinations. 

Id. at 879 n. 5. 

Herein, the complainant testified at the adjudication hearing that he 

observed the complexion and clothing of the juveniles during the several 

minutes the incident ensued and indicated that he did so clearly, for he does 

not wear glasses and was not intoxicated at the time. N.T., 1/20/15, at 71. 

Complainant also stated he saw the face of the individual wearing the red 

jacket and that the person holding the instrument to his neck was a lightskinned African American. Id. at 70, 76. Complainant unequivocally 

identified Juvenile to police whom officers observed wearing a red hooded 

sweatshirt less than two blocks from the scene within minutes of the 
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incident. Id. We find that such evidence was sufficient to establish that 

Appellant was the individual who committed the aforesaid crimes. 

Next, Juvenile avers the juvenile court erred in denying his motion to 

suppress the complainant’s out-of-court identification of Juvenile because 

the procedure utilized to obtain it was unnecessary and unduly suggestive. 

Brief for Appellant at 35. In support of this assertion, Juvenile contends at 

the time he was identified he was handcuffed, surrounded by police, and 

transported to the same block where J.G. had been apprehended. He 

further posits he was in the presence of an excessive number of officers and 

police cruisers during which time suggestive discussion could be heard over 

police radio. Brief for Juvenile at 38-39. 

Juvenile also states that, “most importantly” the complainant’s 

identification was “patently unreliable.” Id. at 34, 40. Juvenile reiterates 

that the Commonwealth presented evidence only that the complainant was 

robbed by five African American youth whom he vaguely described based 

upon their clothing. Juvenile urges that absent more detailed and reliable 

evidence pertaining to the complainant’s opportunity to observe the 

individuals, his identification was unreliable and should have been 

suppressed. Id. at 40-42. 

In reviewing the propriety of identification evidence, the central 

inquiry is whether, under the totality of the circumstances, the 

identification was reliable. The purpose of a “one on one” 

identification is to enhance reliability by reducing the time 

elapsed after the commission of the crime. Suggestiveness in the 

identification process is but one factor to be considered in 
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determining the admissibility of such evidence and will not 

warrant exclusion absent other factors.

As this Court has explained, the following factors are to be 

considered in determining the propriety of admitting 

identification evidence: the opportunity of the witness' [sic] to 

view the perpetrator at the time of the crime, the witness' 

degree of attention, the accuracy of his prior description of the 

perpetrator, the level of certainty demonstrated at the 

confrontation, and the time between the crime and 

confrontation. The corrupting effect of the suggestive 

identification, if any, must be weighed against these factors. 

Absent some special element of unfairness, a prompt “one on 

one” identification is not so suggestive as to give rise to an 

irreparable likelihood of misidentification.

Commonwealth v. Brown, 23 A.3d 544, 558 (Pa.Super. 2011) (en banc) 

(internal citations and quotation marks omitted). This Court has found that 

“on-scene, one-on-one identifications, even where an appellant is 

handcuffed and officers ask a victim to identify him as the perpetrator, are 

not so suggestive as to give rise to an irreparable likelihood of 

misidentification.” Commonwealth v. Armstrong, 74 A.3d 228, 239 

(Pa.Super. 2013) (citation and internal quotation marks omitted), appeal 

granted on other grounds, 623 Pa. 560, 83 A.3d 411 (Jan. 8, 2014). 

Herein, as we stated supra, the complainant testified he was able to 

identify the young males by their clothing and their complexion. He also 

informed the juvenile court he saw the face of the individual wearing the red 

jacket and holding the instrument to his neck demanding “Give it up, old 

head, give it up.” N.T., 1/20/15, at 70. He explained he does not wear 

glasses and was not intoxicated at the time of his identification which 
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occurred within several minutes of the incident. Id. at 71. While Officer 

Campbell testified Juvenile had been handcuffed after the initial stop, Id. at 

15, Officer Goshert testified Juvenile was handcuffed after the identification, 

and the trial court found Juvenile was not handcuffed when the complainant 

identified him. Id. at 30, 33-34, 59-60. In this regard, the trial court 

correctly reasoned as follows: 

[T]he totality of the circumstances surrounding the victim’s 

identifications, particularly the promptness with which they were 

completed, indicated to this court that the out of court 

identifications were completely reliable. There was no evidence 

presented that indicated the presence of special elements of 

unfairness that would have given rise to an irreparable likelihood 

of misidentification by the witness. While one on one 

confrontations between the suspect and victim are highly 

suggestive, an on the scene identification made shortly after the 

occurrence of the crime does not, by itself, offend a suspect’s 

due process rights. Commonwealth v. Moye, 836 A.2d 973 

(Pa.Super. 2003). Officer Goshert testified that the complainant 

identified [Juvenile] without hesitation as the perpetrator in the 

red hooded sweatshirt, and defendant JG as one of the 

perpetrators in a dark hooded sweatshirt within minutes of the 

incident. (N.T. 1/20/1015 [sic] pg. 30). Additionally, no 

corrupting effect was shown to have resulted from the on the 

scene identification. Finding no special elements of unfairness, 

coupled with the close proximity in time and place to the actual 

offense, the identification procedure so enhances the reliability 

of the on the scene identification as to outweigh any possibility 

of irreparable misidentification that might arise from the witness’ 

observance of the suspect in police custody. See, 

Commownealth v. Allen, 429 A.2d 1113 (Pa.Super. 1981). 

Juvenile Court Opinion, filed 11/9/15 at 4-5. Upon our review of the record, 

we find the record supports the juvenile court’s factual findings and the legal 

conclusions drawn therefrom. 
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Indeed, the linchpin in assessing the admissibility of an identification is 

reliability. McElrath v. Commonwealth, 592 A.2d 740, 743 (Pa.Super. 

1991) (citations omitted). Despite Juvenile’s claim, the reliability of the 

complainant’s identification of Juvenile within two blocks of the scene of the 

incident is not outweighed by undue suggestion based upon police presence 

at the time of the identification or by the fact that he was transported a 

short distance to the other end of the block where his codefendant was 

being detained. See Commonwealth v. Moye, 836 A.2d 973, 977–978 

(Pa.Super. 2003), appeal denied, 851 A.2d 142 (Pa. 2004) (holding that 

reliability of victim's identification of defendant made after victim observed 

defendant and unhesitatingly identified him in very close temporal proximity 

to the commission of the crime was not outweighed by police remarks made 

to victim about defendant prior to the identification and when victim 

identified defendant while defendant sat in a police van). 

Nor is the complainant’s identification outweighed by Juvenile’s 

speculation that the complainant may have heard transmissions over police 

radio, for the record is devoid of any evidence that he, in fact, did so. Also, 

contrary to Juvenile’s assertions, the complainant’s unequivocal identification 

of Juvenile on December 10, 2014, is not negated by his later confusion at 

the adjudication hearing about which juvenile seated in the hearing room 

had been wearing the red hoodie that evening. Consequently, we find no 
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special element of unfairness exists so as to give rise to an irreparable 

likelihood of misidentification.

Finally, Juvenile avers the juvenile court improperly admitted the 

complainant’s police statement into evidence at the adjudicatory hearing as 

an exception to Pa.R.E. 803.1.

6

 Juvenile maintains that because the 

complainant did not testify he could not remember the incident or that he 

was confused about the relevant details thereof, and to the contrary 

answered each question clearly and concisely, his memory did not need to 

be refreshed. Brief for Juvenile at 43.7 Moreover, Juvenile claims the 

“impermissible introduction of the statement attempts to bolster an 

____________________________________________

6 This relevant portion of this Rule provides:

(3) Recorded Recollection of Declarant-Witness. A memorandum 

or record made or adopted by a declarant-witness that:

(A) is on a matter the declarant-witness once knew 

about but now cannot recall well enough to testify fully and 

accurately; 

(B) was made or adopted by the declarant-witness when 

the matter was fresh in his or her memory; and

(C) the declarant-witness testifies accurately reflects his 

or her knowledge at the time when made. 

If admitted, the memorandum or record may be read into 

evidence and received as an exhibit, but may be shown to the 

jury only in exceptional circumstances or when offered by an 

adverse party.

Pa.R.E. 803.1(3). 

7

Juvenile placed a timely objection on the record to complainant’s reading of 

the statement. N.T., 1/20/15, at 72, 74-75.
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otherwise completely insufficient identification” because it suggests the 

complainant observed specific characteristics of Juvenile such as his age and 

height which had not been included in the initial description the complainant 

had provided to police. Id. at 44. 

In response to this argument, the juvenile court indicated that during 

the hearing, 

the complainant appeared to lack sufficient present recollection 

to enable him to testify fully and accurately. After the 

complainant misidentified the clothing worn by each of the 

assailants, the Commonwealth presented the witness with his 

statement made to police in an attempt to refresh the witness[’] 

recollection. The witness could not testify fully from present 

memory. . . The prior statement of the complainant to police 

had the indicia of trustworthiness required by the rules and was 

never categorically disowned by the complainant. Moreover, 

[Juvenile’s] counsel cross-examined the witness concerning his 

lack or present recollection. 

Juvenile Court Opinion, 11/9/15, at 6-7. 

Juvenile’s assertions at this juncture in his brief contradict those he

made earlier in support of his sufficiency of the evidence challenge at which 

time he posited the complainant had never been able to identify him and 

that the complainant was confused in his identification of Juvenile and J.G. 

at the adjudication hearing. Indeed, when objecting to the Commonwealth’s 

attempt to show the complainant his statement to police, counsel for 

Juvenile admitted “[t]he witness hasn’t testified that he can recall anything--

-and---so I don’t see the basis of showing him something prepared by 

another individual.” Id. at 74. After the juvenile court overruled the 
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objection, the complainant read his statement wherein he had indicated the 

individual who had placed something to his neck and whose face he 

observed had been wearing a red jacket. Id. at 75-76. This statement was 

in line with Officer Goshert’s earlier testimony that Juvenile had been 

wearing a red hooded sweatshirt and was stopped in the immediate area of 

the robbery where the complainant identified him. Id. at 35. In light of the 

foregoing, we find no error in the juvenile court’s allowing him to read his 

statement to police into the record.8 

Dispositional Order Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/18/2016

____________________________________________

8 As the trial court notes, any error in this regard would have been harmless, 

as the complainant’s statement was merely cumulative of the substantially 

similar, properly admitted testimony of officers regarding the complainant’s 

contemporaneous identifications of Juvenile and J.G. as two of the coconspirators. Trial Court Opinion, filed 11/9/15, at 7. Moreover, where, as 

herein, the juvenile court acted as the finder of fact, it is presumed to know 

the law and disregard inadmissible evidence. Commonwealth v. Smith, 

97 A.3d 782, 788 (Pa.Super. 2014).