In re Interest of P.S.

• Decision Date: 17 March 2017
• Docket Number: No. 577 WDA 2016,577 WDA 2016
• Citation: 158 A.3d 643
• Parties: IN the INTEREST OF: P.S., a Minor Appeal of P.S., a Minor
• Court: Pennsylvania Superior Court

158 A.3d 643

IN the INTEREST OF: P.S., a Minor

Appeal of P.S., a Minor

No. 577 WDA 2016

Superior Court of Pennsylvania.

Argued January 10, 2017

Filed March 17, 2017

Reargument Denied May 24, 2017

Scott B. Rudolf, Public Defender, Pittsburgh, for appellant.

Francesco L. Nepa, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, OLSON and STRASSBURGER,^* JJ.

OPINION BY OLSON, J.:

Appellant, P.S., a juvenile, appeals from the order entered on March 28, 2016 adjudicating him delinquent of three offenses¹ without further disposition, as well as a subsequent dispositional order, following the revocation of his probation, entered on April 11, 2016. Upon careful consideration, we affirm Appellant's adjudications for receiving stolen property and fleeing or attempting to elude a police officer, but vacate his adjudication for flight to avoid apprehension. Further, we affirm the dispositional order entered on April 11, 2016.

The trial court summarized the facts of this case as follows:

Officer Steven Kester[,] a police officer with the North Braddock Police Department[,] stated that on Sunday, January 17, 2016 at approximately [8:10 p.m.], he and a fellow officer were on patrol when they came into contact with a Jeep SUV. According to Officer Kester, he ran the license plate number of the Jeep SUV because moments before, he had learned from the East Pittsburgh Police Department that a Jeep SUV had been reported stolen.

Upon confirmation that the license plate on the vehicle matched that of the Jeep SUV that was reported stolen, Officer Kester testified that they activated their lights and siren on the police vehicle and attempted to stop the Jeep SUV. Officer Kester testified that instead of stopping, the Jeep SUV ‘took off, went down a couple [of] streets, turned down a back alley along the train tracks, lost control on a dirt road and smashed into a tree.’ Officer Kester added that once the vehicle took off, it traveled at a rate above the speed limit for approximately one-half mile before the driver lost control of the Jeep SUV on an icy, dirt road, which caused the vehicle to slide sideways and impact a tree head-on. The collision with the tree then caused the Jeep SUV to be knocked down onto the railroad tracks. Officer Kester testified that when the Jeep SUV crashed, the police car was approximately twenty feet behind the Jeep forcing them to slam on their brakes.

Once the vehicle stopped, Officer Kester was able to determine the number of occupants in the Jeep SUV vehicle because both the headlights of the police vehicle and the ‘overhead take down lights' were extremely bright and illuminated the interior of the Jeep SUV. Officer Kester saw three occupants ‘bail’ out of the Jeep SUV from the passenger side of the vehicle and flee the scene. Officer Kester stated he was pretty sure that the individual behind the steering wheel was wearing a puffy, blue coat. This person was also the last one to exit the vehicle. The other two occupants were wearing black hoodies.

Officer Kester pursued the person wearing the blue jacket. He followed him down a hill, at times tripping and falling. Officer Kester stated that during the foot chase, the person in the blue jacket was never more than twenty to thirty feet ahead of him.

Once they reached Corey Street, Officer Kester stated he began yelling ‘Taser’ as he was running close behind the individual. Shortly afterwards, the individual ‘put his hands up and turned around.’ He then surrendered himself to the officer. This person was later determined to be P.S., [Appellant] in this case.

In court, Officer Kester testified that Appellant was ‘wearing basically the same thing’ in court that day that he was wearing the night of his arrest: a blue jacket similar to the one hanging from [A]ppellant's chair and a headband he observed [A]ppellant wearing in the hallway. Officer Kester identified [Appellant] as the person who ‘was driving the car that night.’

Continuing in his testimony, Officer Kester explained that [A]ppellant told him that he had been at a friend's home earlier that evening, that the friend had called a ‘jitney’ for him, and that this jitney was the same vehicle in which he was riding when the police pulled up behind them. Appellant also denied knowing the other two passengers in the vehicle.

The Commonwealth called [R.C.² ] as its second witness. [R.C.] testified that she had been the owner of a green, 2003 Jeep Liberty that was stolen from her residence located in the Regent Square neighborhood of the City of Pittsburgh. While [R.C.] could not remember the exact date her 2003 Jeep was stolen, [R.C.] testified it was taken on a Friday because when she went out on Saturday morning to use the vehicle, her car was missing. The police were called and a report was made. [R.C.] testified that she was notified on Monday or Tuesday by the police that her vehicle had been found abandoned and damaged in North Braddock. She testified that she had not left the keys in her vehicle, that she did not know Appellant and that she had not given him permission to operate or drive her vehicle. The Commonwealth rested its case after the conclusion of the testimony of [R.C.]. Appellant presented no witnesses.

Trial Court Opinion, 7/12/2016, at 5–8 (record citations omitted).

Procedurally, the case progressed as follows. On January 25, 2016, the Commonwealth filed a delinquency petition against Appellant charging him with the aforementioned charges, as well as possession of a controlled substance,³ a charge the Commonwealth eventually withdrew. Because Appellant was on probation as the result of a prior adjudication of delinquency for retail theft, the trial court scheduled a joint hearing on February 22, 2016, to address the alleged probation violations and the new offenses. The trial court, however, continued the hearing because the alleged victim was unavailable.

On March 28, 2016, the trial court found Appellant delinquent of the aforementioned charges. The trial court, however, did not impose a disposition on the new adjudications. Instead, it entered an order on March 28, 2016 stating, "[Appellant] is ADJUDICATED DELINQUENT and no further disposition is ordered because [Appellant] is currently under the court's supervision" on his previous adjudication for retail theft. Order, 5/28/2016, at 1. Immediately after the adjudication hearing, the trial court proceeded to a review hearing on the alleged probation violations. The trial court found that Appellant was not meeting the terms and conditions of his probation and that probation was no longer appropriate. Accordingly, the trial court revoked Appellant's probation on the underlying retail theft adjudication and ordered that Appellant be committed to the Penn Hills Community Intensive Supervision Program (CISP). When the trial court ordered the commitment to CISP, Appellant became agitated. Thus, the trial court continued the dispositional hearing on the probation violation until the following day to reconsider whether CISP was an appropriate placement for Appellant and to explain his post-dispositional rights. On March 29, 2016, the trial court deferred further disposition on the probation violation until April 11, 2016. On April 11, 2016, the trial court entered a probation violation dispositional order, directing placement with the Outside–In Residential Program. On April 22, 2016, Appellant filed a single notice of appeal from the March 28, 2016 order adjudicating him delinquent and imposing no further disposition on the new delinquency adjudications. Appellant's April 22, 2016 notice also appealed from the dispositional order entered on April 11, 2016 for violating the terms of probation following the prior adjudication for retail theft.

Before we turn to the merits of this case, we must address several procedural irregularities. Initially, we note that the trial court recommends in its Rule 1925(a) opinion that "because the [A]ppellant has not filed an appeal as to the April 11, 2016 order entered, that his appeal should be quashed for failing to timely file his appeal." Trial Court Opinion, 7/12/2016, at 4. However, upon review of the record, Appellant filed a single notice of appeal captioned with the docket numbers from both the underlying retail theft adjudication and new adjudications, purporting to appeal "from the March 28, 2016, March 29, 2016, and April 11, 2016 dispositional orders." Notice of Appeal, 4/22/2016. Thus, we reject the trial court's suggestion that we quash the appeal for failing to file a notice of appeal from the April 11, 2016 order.

We recognize however, that "[w]here [ ] one or more orders resolves issues arising on more than one docket or relating to more than one judgment, separate notices of appeal must be filed." Note to Pa.R.A.P. 341, citing Commonwealth v. C.M.K. , 932 A.2d 111, 113 n.3 (Pa. Super. 2007). In C.M.K. , this Court quashed a single appeal from two judgments of sentence imposed on codefendants who were convicted and sentenced individually on different charges. C.M.K. , 932 A.2d at 112. We noted that the filing of the joint appeal in that instance was unworkable because the appeals required individualized arguments, separate appellate analyses of the evidence, and distinct examination of the different sentences imposed. Id. This case is distinguishable from C.M.K.

While our Supreme Court recognized that the practice of appealing multiple orders in a single appeal is discouraged under Pa.R.A.P. 512 (joint appeals), it previously determined that "appellate courts have not generally quashed [such] appeals, provided that the issues involved are nearly identical, no objection to the appeal has been raised, and the period for appeal has expired." K.H. v. J.R. , 573 Pa. 481,826 A.2d 863, 870 (2003) (citation omitted). Here, Appellant presents intertwined issues related to his new adjudications and revocation disposition, the Commonwealth has not objected,⁴ and the appeal period...