Opinion
No. 3384 EDA 2004.
Filed: October 26, 2005.
Appeal from the Order entered November 12, 2004, In the Court of Common Pleas of Bucks County, Criminal Division at No. 883 JUV 2004.
BEFORE: MELVIN, BENDER and BECK, JJ.
¶ 1 Appellant, the minor child F.L., appeals the trial court's determination that he committed criminal mischief and the resulting adjudication of delinquency. We reverse and remand.
¶ 2 Appellant was charged with criminal mischief, based on an incident on June 18, 2004 in which a motor vehicle parked in its owner's driveway was damaged by scratching along the side. At the time of the incident, appellant was fourteen years of age. A hearing was held on September 14, 2004, at which time the Commonwealth and defense witnesses offered incompatible testimonies. The witnesses for the prosecution testified that appellant had made unfriendly, aggressive comments earlier in the day to the son of the vehicle owner; that appellant was at the scene of the damage to the vehicle; and that he fled when he was observed. In contrast, the testimony of the defense witnesses offered an alibi for appellant. Finally, the vehicle owner testified as to the monetary cost of repair of the damage to her vehicle, based on oral estimates she had received from auto repair shops.
18 Pa.C.S.A. § 3304(a)(2).
¶ 3 Faced with conflicting testimonies, the court based its conclusions on credibility determinations. The judge found credible the Commonwealth witnesses, and did not believe the witnesses for the defense. He therefore determined that appellant had committed criminal mischief and adjudicated him delinquent. Appellant was placed on indefinite probation and ordered to participate in the Youth Services Community Supervision Program, to perform community service, and to pay restitution in the amount of $1200.
¶ 4 In his appeal, appellant contends that the juvenile court lacked jurisdiction to adjudicate him delinquent, since no evidence outside of inadmissible hearsay was presented as to the pecuniary loss caused by damage to the vehicle, an essential element of the offense charged.
Appellant also contends that the evidence was insufficient to prove that he committed the crime charged. Because of our resolution of the hearsay issue, we do not reach this other issue.
¶ 5 A delinquent child is statutorily defined as one who is "ten years of age or older whom the court has found to have committed a delinquent act and is in need of treatment, supervision or rehabilitation." 42 Pa.C.S.A. § 6302. A delinquent act is defined as a crime; however, the definition excludes summary offenses. Id.; see also Commonwealth v. Bursick, 526 Pa. 6, 14, 584 A.2d 291, 295 (1990). Under 18 Pa.C.S.A. § 3304(a)(2), the provision under which appellant was charged, a person is guilty of criminal mischief if he "intentionally or recklessly tampers with tangible property of another so as to endanger person or property." However, the grading of criminal mischief depends upon the extent of the pecuniary loss resulting from the act. Most relevant to the case at bar, criminal mischief under 18 Pa.C.S.A. § 3304(a)(2) is graded as a summary offense if the pecuniary loss is less than or equal to $500. 18 Pa.C.S.A. § 3304(b). Thus, criminal mischief under 18 Pa.C.S.A. § 3304(a)(2) does not constitute a delinquent act if the pecuniary loss involved is less than or equal to $500, because under such circumstances, it is classified as a summary offense.
¶ 6 Consistent with the statutory provision that a summary offense does not constitute a delinquent act, juvenile courts do not have original jurisdiction to hear summary offenses. See Commonwealth v. Bursick, 526 Pa. 6, 15, 584 A.2d 291, 296 (1990) (holding that "summary proceedings are an exception to the exercise of juvenile court jurisdiction"); In the Matter of Huff, 582 A.2d 1093, 1098 (Pa.Super. 1990) (en banc), aff'd, 527 Pa. 587, 588 A.2d 510 (1991).
Juvenile court may obtain jurisdiction over summary offenses in two other ways that are not relevant to the present case. First, transfer jurisdiction over summary offenses has been clarified by case law. See Bursick, 526 Pa. at 6, 584 A.2d at 291; Commonwealth v. Kirk J., 439 A.2d 680 (Pa.Super. 1981); Commonwealth v. Alan D., 435 A.2d 1231 (Pa.Super. 1981). Second, juvenile courts also may assume jurisdiction over summary offenses that arise "out of the same episode or transaction involving a delinquent act for which a petition alleging delinquency is filed." 42 Pa.C.S.A. § 6303(a)(5).
¶ 7 This Court has previously applied the limitations on juvenile court jurisdiction and adjudication of delinquency to a case in which the facts are strikingly similar to the case at bar. See In re Gillen, 344 A.2d 706, 708 (Pa.Super. 1975). In Gillen, a juvenile was adjudicated delinquent, based on the trial court's determination that he had damaged two parked cars and thereby committed criminal mischief. At the adjudicatory hearing, the only evidence of the amount of damage was a written estimate for repair work obtained by each car owner from an auto repair shop. The estimates were not authenticated during the hearing by the shop owners-authors. Id.
¶ 8 This Court determined that the Commonwealth had failed to prove the amount of damage to the cars — an essential element of the Commonwealth's case. The repair estimates on which the Gillen court relied were hearsay, not subject to any exception, and thus were improperly admitted. Id. Since the Commonwealth had not otherwise proven that the damage in question was greater than $500, the offense of criminal mischief under which the juvenile was charged was a summary offense, which could not form the basis for an adjudication of delinquency. Furthermore, without proof that the damage to the cars was greater than $500, the Commonwealth failed to establish an essential element of the juvenile court's jurisdiction. This Court therefore reversed the adjudication of delinquency and remanded for new hearings.
¶ 9 Based on Gillen, appellant contends in the present case that the juvenile court did not have jurisdiction to declare him delinquent because no competent evidence proved the extent of damage caused by the criminal mischief. The only evidence presented by the Commonwealth as to pecuniary damage to the vehicle was the owner's testimony. Specifically, the owner testified that she had obtained three estimates indicating that the damage totaled $2600. Appellant contends that this testimony was hearsay and inadmissible.
¶ 10 We agree with appellant. The vehicle owner merely testified as to what the auto shop personnel had told her would be the cost of repair. This testimony was hearsay, to which no exception applied, and thus was inadmissible. Since the Commonwealth did not establish the pecuniary loss caused by appellant's criminal mischief, it failed to establish that appellant had committed anything other than a summary offense. A summary offense cannot form the basis for an adjudication of delinquency. Furthermore, because the Commonwealth established nothing more than a summary offense, the juvenile court did not retain subject matter jurisdiction in this case. Juvenile courts are courts of limited jurisdiction — and they do not have original jurisdiction over summary offenses. See Bursick, 526 Pa. at 15, 584 A.2d at 296; Huff, 582 A.2d at 1098. We therefore reverse the juvenile court's finding of delinquency and remand for new proceedings.
In reaching this conclusion, we must reject the arguments presented to us by both the Commonwealth and appellant. The Commonwealth argues that appellant waived the issue of inadmissible hearsay because he did not object to the testimony when it was offered, nor in post disposition motions. We agree with the Commonwealth that the record reveals no objection to the hearsay evidence until appeal to this Court. However, "jurisdiction of the court over the subject matter can be raised at any time by either the parties or by the court on its own motion." In re Estate of Cantor, 621 A.2d 1021, 1022 (Pa.Super. 1993). Therefore, because subject matter jurisdiction is implicated, we address the merits of this appeal even though the hearsay issue was not preserved by appellant.
Appellant has framed the hearsay issue as one of insufficiency of the evidence. Specifically, he argues that, because no evidence other than inadmissible hearsay was offered to prove pecuniary loss, the adjudication of delinquency was based on insufficient evidence. However, appellant has not taken into account the clear directive from our Supreme Court regarding review of sufficiency challenges: when an appellate court reviews a challenge to the sufficiency of the evidence, it must consider all of the evidence presented to the factfinder, "without consideration as to the admissibility of that evidence." Commonwealth v. Sanford, ___ Pa. ___, 863 A.2d 428, 431-32 (2004). In other words, "[t]he question of sufficiency is not assessed upon a diminished record. Where improperly admitted evidence has been allowed to be considered by the jury, its subsequent deletion does not justify a finding of insufficient evidence." Id. Thus in reviewing appellant's challenge to the sufficiency of the evidence, we must include in our consideration the hearsay testimony concerning pecuniary loss. We cannot justify a finding of insufficient evidence based on deletion of that evidence, even though it was improperly admitted.
¶ 11 Reversed and remanded. Jurisdiction is relinquished.
¶ 12 Orie Melvin, J. concurs in the result.