101 Ga. App. 638 (1960)
114 S.E.2d 924
McCOY GROCERY COMPANY
v.
TRAVELERS INDEMNITY COMPANY.
38119.
Court of Appeals of Georgia.
Decided April 27, 1960.
Rehearing Denied May 12, 1960.
James H. Fort, for plaintiff in error.
Hatcher, Smith, Stubbs & Rothschild, Albert W. Stubbs, contra.
NICHOLS, Judge.
1. "`When a court passes upon a motion for a non-suit it decides only one question, that is, do the allegations and the proof correspond? In sustaining such a motion the court does not hold that the plaintiff is not entitled, under the law, to recover on the facts alleged; neither does the overruling ruling of the motion decide that the plaintiff is entitled under the law to recover. The right to recover under the facts alleged is not involved in the decision of such a motion. If a plaintiff "proves his case as laid," he is entitled to prevail as against a nonsuit; but it by no means follows from this that he is entitled to recover on the facts "as laid." Kelly v. Strouse, 116 Ga. 872, 883 (43 S. E. 280). See also Flewellen v. Flewellen, 114 Ga. 403 (40 S. E. 301); Barge v. Robinson, 115 Ga. 41 (41 S. E. 258); McCandless v. Conley, 115 Ga. 48 (41 S. E. 256)." Gray v. Schlapp, 92 Ga. App. 261 (88 S. E. 2d 536).
2. The plaintiff in this case sought to recover, under a policy of burglary insurance, a copy of which is attached to the petition, issued by the defendant insurance company for "the felonious abstraction of insured property from within a vault or safe described in the declarations and located within the premises by a person making felonious entry into such vault or such safe and any vault containing the safe, when all doors thereof are duly closed and locked by all combination locks thereon, provided such entry shall be made by actual force and violence, of which force and violence there are visible marks made by tools, explosives . . . upon the exterior of all of said doors of such vault or safe . . . if entry is made through such doors . . ." (Emphasis ours). The plaintiff introduced evidence to show there had been a felonious abstraction of funds from within a safe located within the plaintiff's premises by some person making felonious entry *639 into such safe; that such felonious entry into said safe was made when all the doors thereof were duly closed and locked by all combination locks thereon; that there were visible marks of actual force and violence made by tools of some description and covered by the policy upon the exterior door to the safe, which door was the only door, under the evidence, upon which there was a combination lock, as contemplated by the policy.
3. Whether or not there was any evidence of the insured's liability for the physical damage done to the building in the alleged wrongful entry to same, and for which the plaintiff seeks to recover under the policy, need not be considered here since there was sufficient evidence to go to the jury on the question of the defendant's liability for the money allegedly stolen from the safe.
Judgment reversed. Gardner, P. J., Townsend, Carlisle and Frankum, JJ., concur. Felton, C. J., and Bell, J., dissent.
FELTON, Chief Judge., dissenting.
The plaintiff alleged in his amended petition that entry to the safe was made by actual force and violence of which there were visible marks upon the exterior of all doors of such safe. While there is evidence of visible marks on certain portions of the safe, in my opinion the plaintiff has not proved that entry to the safe was made by actual force and violence and has therefore failed to prove his case as laid. The sum and substance of the evidence is that on the evening of May 2, 1959, the inner and outer doors of the safe were locked by an employee of the plaintiff who left the premises about 7:30 p. m.; that when the store was opened the next morning the safe had been moved 12 to 18 inches from the wall; there was a small dent or scratch on the dial which is located on the outside door; the inner door was open and the key to it *640 was broken off; that the knob on the outside was absolutely clean before this occasion and had no scratches on it at all. There were also some scratches around the hinges and the edge of the outer door. The plaintiff's manager had the combination to the safe changed immediately after this occurrence and about a week or ten days later he noticed that the knob did not twirl freely as it had done previously and that there was a sort of bind in it.
While there is no precise precedent in Georgia, a number of decisions from other jurisdictions support the proposition that the mere presence of marks or scratches upon a safe which has been opened in some manner is not sufficient, in and of itself, to satisfy the policy provisions requiring the showing of an entry by actual force and violence. See in this connection Newark Dance Palace v. Maryland Cas. Co., 125 Misc. Rep. 869 (212 N.Y.S. 286); Brill v. Metropolitan Surety Co., 113 N.Y.S. 476; Wagner v. London Guar. Co., 86 Pa. Super. Ct. 542; Grayson v. Maryland Cas. Co., 110 Neb. 354 (160 N.W. 85); Inglis v. General Cas. Co., 211 Ore. 116 (316 P. 2d 546). We are not called upon to decide in this case the quantum of evidence necessary to make a jury question on this point, except as to whether the evidence set forth above makes out a prima facia case of entry by actual force and violence as alleged in the petition, so as to withstand the motion for a nonsuit. Code § 110-310.
The plaintiff's evidence is circumstantial, and in order to withstand a nonsuit, it not only must reasonably tend to establish the theory of the case made by the petition, but must also preponderate to that theory rather than to any other reasonable hypothesis. Callaway v. Hall, 58 Ga. App. 795 (199 S. E. 899). While the evidence of marks and scratches is consistent with the theory of entry by actual force and violence, as alleged, it certainly does not preponderate towards that theory rather than to any other, particularly in the absence of evidence indicating that the outside lock was damaged in any manner. There is nothing to show that the lock was not in proper working order when the combination was changed on May 3rd by a locksmith. The probability that a successful opening of the safe by means of manipulating the combination was a result of violence is too *641 remote to be considered, especially when the violence did not damage the combination or lock. To my mind, a construction of the policy to the effect that coverage applies where there are signs of violence on the combination knob whether the violence effected or helped effect the entrance into the safe is a most farfetched and unreasonable interpretation, if such is given in this case expressly or impliedly. The petition alleges that in making the entry to the building the burglars caused damage to the roof in the amount of $45.52. The plaintiff's president testified that the roof had been repaired by two companies and "I believe the total cost of that repair was forty-five dollars and some cents. The cost of that repair has not been paid for. It was billed to us." Even if this evidence is sufficient to support this allegation of damage the policy specifically covers "damage to the premises by such safe burglarly or attempt thereat, provided. . . the insured is owner thereof or is liable for such damage." There is certainly no evidence that the plaintiff was the owner of the premises or was for any reason legally liable for this damage, despite the fact that repair charges were billed to it.
The plaintiff's evidence is of the weakest kind and in my opinion is manifestly insufficient to establish a prima facie case of entry by force and violence or for recoverable damage to the premises as laid in the petition. I therefore think that the court did not err in granting defendant's motion for a nonsuit.
Bell, J., concurs in the foregoing dissent.

ON MOTION FOR REHEARING.
On motion for rehearing counsel for the defendant in error complains that the court overlooked (b) "The fact that there was no proof whatsoever of a visible mark on the exterior door of the inner compartment which was designed to be opened by a key." The plaintiff in error's witness Joe Young testified: "The bottom of the safe was open and there was no inside door on that, I meant it was just like a cabinet  and then the bottom part is open. I mean that you can put a big object in such as a register pan, but the upper part had compartments in it where you might keep papers or something and lock. You didn't have to open anything but the big door to put the drawers in the safe." *642 Earlier in the testimony of the same witness is found the following: "As the cash drawers were pulled out of the register, they were stacked up and stacked in the bottom of the safe  each register's change." The plaintiff in error's witness Mrs. Betty Johnson testified in part as follows: "I put $3,272.48 in the safe. I had not counted that, but the reason I didn't count it is because the drawers were checked out and then more money was taken into the drawers after I had checked them out but those drawers were just put into the safe."
Placing a reasonable construction on the above testimony, the conclusion is inescapable that the only door necessary to be opened in order to reach the money that was abstracted or taken, if it was abstracted or taken from the safe, as contended by the plaintiff in error, was the big swinging outside door to the safe and upon which was located the combination lock. There was and is evidence in the record of visible marks on that door.
Rehearing denied.


                             2014 IL App (2d) 121368
                                  No. 2-12-1368
                          Opinion filed November 6, 2014
______________________________________________________________________________

                                           IN THE

                            APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 10-CF-1621
                                       )
RICARDO JAIMES,                        ) Honorable
                                       ) John R. Truitt,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Justices Jorgensen and Birkett concurred in the judgment and opinion.

                                          OPINION

¶1     Following a jury trial, the defendant, Ricardo Jaimes, was convicted of first degree

murder (720 ILCS 5/9-1(a)(1) (West 2010)) and attempted first-degree murder (720 ILCS 5/8-

4(a), 9-1(a)(1), (West 2010)). He was sentenced to a total of 70 years’ imprisonment. On

appeal, the defendant argues that: (1) he was not convicted beyond a reasonable doubt; (2) the

trial court erred in admitting gang-related evidence; and (3) he was deprived of the effective

assistance of counsel. We affirm.

¶2                                    BACKGROUND

¶3     On June 23, 2010, the defendant and his brother Isaac were charged by indictment with

the first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2010)) of Demarkis Robinson
2014 IL App (2d) 121368

and the attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)) of William

Patrick. The trial court granted the defendant’s motion to sever the brothers’ trials.

¶4      Between September 24 and 27, 2012, the trial court conducted a jury trial. The State’s

evidence established that Patrick had prior convictions of mob action and possession of a firearm

without a firearm owner’s identification (FOID) card and that he was a member of the Insane

Unknowns street gang. That gang was a rival of the Latin Kings. Robinson was his close friend

and also a member of the Insane Unknowns.

¶5      On May 27, 2010, Patrick and his aunt, Wanda Perez, were visiting his grandmother’s

house at 1129 6th Avenue in Rockford. Robinson was also there. Robinson spent time on the

front porch with Patrick, Perez, and other family members. While on the porch, Perez noticed a

gray Tahoe sport utility vehicle (SUV) quickly approach and then stop near the 8th Street and 6th

Avenue intersection. Because its approach grabbed her attention, she told Patrick and Robinson

to watch the SUV. Patrick watched it drive past the house slowly, with the driver’s side of the

vehicle facing the house. Perez momentarily played with her phone, but when she looked up she

noticed the driver make a hand gesture with two fingers pointing downward. Perez did not

closely view the vehicle’s occupants. Perez believed that the gesture was a gang sign. Both

Robinson and Patrick were present when the gesture was made. Patrick explained that the hand

gesture was an act of disrespect to the Insane Unknowns. Then, Patrick observed the driver

display a gang sign for the Latin Kings. Patrick testified that the driver’s hand gestures were

grounds to start a fight.

¶6      Patrick took his nieces into the house because “anything could start to happen.” The

Tahoe was traveling toward 7th Street, but Robinson and Patrick walked toward 9th Street.

Shortly after Robinson and Patrick left, Perez heard what sounded like one close gunshot. She

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2014 IL App (2d) 121368

then called Robinson’s father, Samuel, and told him that she heard a gunshot and that Robinson

and Patrick were running toward his house. The call was made at 3 p.m.

¶7     Patrick and Robinson passed through an alley and turned onto 5th Avenue. When they

exited the alley 15 to 20 minutes after first seeing the Tahoe, Patrick, while speaking on his

phone, saw the Tahoe, with the same driver, pass them very slowly. Patrick observed that the

passenger had a bandana around his face, which signified to Patrick that the occupants of the

Tahoe were going to start shooting. Patrick picked up a brick and threw it at the Tahoe so that it

would keep moving. Geraldine Horton was walking by as this occurred. (Horton had previously

been convicted of drug-related charges and she had other charges pending against her.) She

heard glass break and saw the SUV stop a few feet before a stop sign. Lacressa Dangel was

driving by as this occurred. (Dangel had previously been convicted of prostitution, theft, and

drug-related charges. She also had traffic charges pending against her.) Dangel felt and saw

something hit the back of her car on her northbound journey along 9th Street, between 2:45 and 3

p.m. She stopped her car north of 5th Avenue and saw a silver SUV facing west on 5th Avenue.

She observed the scene unfold through her rearview mirror.

¶8     Horton, Patrick, and Dangel watched as: (1) the Tahoe’s passenger door opened; (2) a

passenger exited and walked toward the back of the vehicle; and (3) the passenger used two

hands to hold, point, and fire a firearm four or five times. Dangel believed that the gun looked

like a skinny BB gun and that the shooter was a Hispanic male. Patrick believed that the firearm

looked like a rifle, and he heard five to eight shots fired. He ducked behind a tree, and Robinson

veered off into an alleyway.

¶9     After the passenger stopped firing, he returned inside the waiting vehicle, and the vehicle

sped off down 5th Avenue. Horton saw the driver as he passed; his eyes were wide open, and he

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2014 IL App (2d) 121368

gripped the steering wheel with locked and tensed arms. Horton later told the police that the

driver looked scared. At trial, she testified that the driver was surprised to see her. She

described both the driver and the passenger as Hispanic.

¶ 10   In response to the phone call from Perez, Samuel ran toward the area where the shots

were fired. About 15 to 20 minutes later, Samuel found Robinson’s shirt and then saw Robinson

lying naked under a faucet. Samuel picked up the clothing from the yard and brought it to his

son. Samuel saw that Robinson was in and out of consciousness and he called 911. Robinson

then told Samuel, “that damn Richard shot me.” From a previous discussion with his son,

Samuel had learned that Richard and Robinson had been in a fight at Rockford East High

School, Richard was a Latin King who attended East High School, and Robinson had

encountered Richard at Perez’s mother’s house a month before the shooting.

¶ 11   Police officers responded to the scene and discovered five spent .22-caliber shell casings

in the street. The casings were run over and deformed, but they were in a small grouping.

Robinson was transported to SwedishAmerican Hospital, where he was pronounced dead.

¶ 12   On May 28, 2010, Dr. Mark Peters performed an autopsy on Robinson. Dr. Peters opined

that Robinson died of a gunshot wound to the abdomen that caused internal bleeding,

hemorrhagic shock, and blood loss. Though such an injury could cause instant death, a person

could walk and live with such an injury for 30 minutes before dying. Dr. Peters recovered from

Robinson’s body a bullet that appeared consistent with .22-caliber ammunition.

¶ 13   On May 28, 2010, Patrick spoke to Rockford police officers about the incident and gave

his statement. He was upset, shaking, and crying. In his statement, Patrick did not mention that

he threw a brick at the silver Tahoe or that Robinson walked up to the vehicle and spoke to the

occupants. Though he had not seen the driver before, Patrick knew that the driver was a Latin

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2014 IL App (2d) 121368

King, based upon the display of the Latin Kings’ gang sign. From a photo array, Patrick

identified the defendant as the driver of the Tahoe and Isaac as the shooter.

¶ 14   Also on May 28, 2010, Rockford police officers interviewed Dangel. She identified Isaac

as the shooter. She was not able to identify the driver of the vehicle.

¶ 15   On May 29, 2010, the police arrested both the defendant and Isaac.               The police

discovered the defendant’s Tahoe at the house where he was arrested. When the Tahoe was

inspected, the police found a spent .22-caliber casing under the rear passenger seat.

¶ 16   Patrick and Perez subsequently identified the defendant’s Tahoe as the one they saw on

the day of the shooting. Both Horton and Dangel told the police that the defendant’s Tahoe

looked like the one involved in the shooting.

¶ 17   Illinois State Police forensic scientist David Welte compared the five spent cartridges

found on the street with the one found in the Tahoe. He concluded that all six casings were fired

from the same .22-caliber firearm. Although he determined that the bullet recovered from

Robinson was the same caliber as the six casings, he could not determine if it was fired from the

same firearm, because, as the firearm used in the shooting was never recovered, he was not able

to compare it to that firearm.

¶ 18   On February 7, 2011, Patrick went to the office of the defendant’s attorney, David Vella.

He was accompanied by someone who identified himself as a Vice Lord from Chicago. Patrick

told Vella that the written statement he had given to the police was false and that he had laughed

when it was read. He told Vella that he could not identify the driver or the shooter, because

hoods and masks covered their faces. At trial, Patrick testified that his statement to Vella was

false and that he had made it because he had been threatened.

                                                -5-
2014 IL App (2d) 121368

¶ 19   In September 2012, Patrick told an assistant State’s Attorney that he did not want to

testify. Patrick explained that people had threatened him. He was concerned about his safety.

Patrick indicated that he could still identify the driver of the Tahoe from a photo array, but not

the shooter. (At trial, he testified that he could identify the shooter as well.) Patrick also made

no reference to Robinson talking to the occupants of the Tahoe. (At trial, he testified that

Robinson and the occupants said a couple of words when the vehicle first pulled up.)

¶ 20   The State introduced evidence that the defendant was a Latin King. Specifically, Gary

Anderson, a Winnebago County corrections officer, said that the defendant told him that he was

a Latin King and that he needed to be segregated from other gangs. The State also introduced

testimony from Rockford police officer Marc Posley, an expert on street gangs. He explained

the significance of gang members’ hand gestures and their rivalries with other gangs.

¶ 21   Following the denial of his motion for a directed verdict, the defendant presented two

witnesses. Rockford police officer Courtney Tillman Listhrup, a school liaison officer at East

High School, testified that on May 14, 2010, Isaac complained to her that someone had broken

the driver’s-side and rear windows of his Chevy Suburban. Officer Jeffrey Schroder was called

to impeach Patrick’s testimony.

¶ 22   At the close of the trial, the jury found the defendant guilty of first-degree murder and

attempted first-degree murder. Following the denial of his posttrial motion, the trial court

sentenced the defendant to a total of 70 years’ imprisonment. The defendant thereafter filed a

timely notice of appeal.

¶ 23                                       ANALYSIS

¶ 24   The defendant’s first contention on appeal is that he was not convicted beyond a

reasonable doubt. Specifically, the defendant argues that the State failed to prove that he was

                                               -6-
2014 IL App (2d) 121368

present at the shooting or that he possessed the requisite intent for convictions of the charged

offenses.

¶ 25   It is not the province of this court to retry the defendant. People v. Collins, 106 Ill. 2d

237, 261 (1985). 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.’ ” (Emphasis in original.) Id. (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “The sufficiency of the evidence and the relative

weight and credibility to be given the testimony of the witnesses are considerations within the

exclusive jurisdiction of the fact finder.” People v. Atherton, 406 Ill. App. 3d 598, 608 (2010).

The evaluation of the testimony and the resolution of any conflicts or inconsistencies that appear

are also wholly within the province of the finder of fact. Collins, 106 Ill. 2d at 261-62.

¶ 26   The offense of first-degree murder is shown when the State proves, beyond a reasonable

doubt, that, in performing the acts that cause the death of an individual, the defendant “either

intends to kill or do great bodily harm to that individual or another, or knows that such acts will

cause death to that individual or another.” 720 ILCS 5/9-1(a)(1) (West 2010).

¶ 27   The offense of attempted murder is shown when the State proves, beyond a reasonable

doubt, that the defendant, with the specific intent to kill, commits any act that constitutes a

substantial step toward the commission of murder. 720 ILCS 5/8-4, 9-1 (West 2010). The

question of a defendant’s intent is one of fact, to be determined by the trier of fact, and can be

inferred from the surrounding circumstances, such as the character of the attack, the use of a

deadly weapon, and the severity of injury. People v. Valentin, 347 Ill. App. 3d 946, 951 (2004).

¶ 28   Considering the evidence in the light most favorable to the State, we first address whether

the evidence established that the defendant was the driver of the vehicle involved in the shooting.

                                                -7-
2014 IL App (2d) 121368

We believe that it did. Patrick identified the defendant as the driver, one day after the murder

and at trial. Patrick and Dangel identified Isaac as the passenger. Patrick and Perez identified

the defendant’s vehicle as the one involved in the shooting. Horton and Dangel indicated that

the defendant’s vehicle looked similar to the one involved in the shooting. Further, a shell casing

found in the defendant’s vehicle matched the casings recovered at the crime scene. Based on this

evidence, the jury could reasonably conclude that (1) the defendant’s vehicle was at the shooting;

(2) Isaac was the passenger in the vehicle; and (3) the defendant was driving the vehicle.

¶ 29   In so ruling, we reject the defendant’s argument that, because Patrick gave numerous

accounts as to what occurred, and because of his bias against the Latin Kings, his testimony was

not credible. We note that all of the inconsistencies in his statements as well as his bias against

the Latin Kings were brought to the jury’s attention. Further, other than the statement that he

made to Vella, which the circumstances suggest was made under duress, he consistently

identified the defendant as the driver of the vehicle. It was within the purview of the jury to

determine that Patrick’s identification of the defendant was credible. See Collins, 106 Ill. 2d at

261-62.

¶ 30   We also reject the defendant’s argument that Patrick did not have a sufficient opportunity

to observe who was driving the vehicle. In assessing identification testimony, a court considers

the following factors: (1) the witness’s opportunity to view the criminal at the time of the crime;

(2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the

criminal; (4) the witness’s level of certainty at the identification confrontation; and (5) the length

of time between the crime and the identification confrontation. Neil v. Biggers, 409 U.S. 188,

199-200 (1972); People v. Slim, 127 Ill. 2d 302, 307-08 (1989). The trier of fact determines the

                                                -8-
2014 IL App (2d) 121368

weight to be given identification testimony. People v. Calderon, 369 Ill. App. 3d 221, 232

(2006).

¶ 31      As to the first factor, Patrick twice encountered the defendant in daylight on a “hot, nice

day.” When the defendant first drove past Patrick and Robinson, the driver’s side of the vehicle

faced them and the windows were rolled down. Patrick saw the driver flash gang signs. Around

2:45 p.m., as Patrick exited the alley onto 5th Avenue while speaking on his phone, he saw the

Tahoe, with the same driver, slowly passing again. Thus, Patrick’s testimony demonstrated that

he observed the defendant prior to the shooting without any obstruction. See People v. Masse,

237 Ill. App. 3d 348, 354 (1992). Because Patrick had two chances to see the defendant in broad

daylight, the jury could reasonably conclude that Patrick had a sufficient opportunity to observe

the defendant.

¶ 32      As to the second factor, the defendant argues that Patrick’s degree of attention was

insufficient to allow him to make a positive identification of the defendant. Specifically, the

defendant contends that Patrick’s cell-phone use distracted him during the shooting. We note

that, although Patrick was using his cell phone during his second encounter with the vehicle, he

was not using it during the first encounter, when he observed the vehicle from the porch. The

jury could conclude that Patrick was paying sufficient attention to what was occurring so as to

identify the defendant.

¶ 33      As to the third factor—the accuracy of the witness’s description—there was no detailed

testimony. The record indicates only that Patrick described the events to police officers a day

after the shooting.

¶ 34      As to the fourth factor—the witness’s level of certainty—we note that Patrick identified

the defendant one day after the incident and again at trial. The defendant asserts that Patrick’s

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2014 IL App (2d) 121368

identification was uncertain, because his identification statements equivocated during the two-

year span before trial. However, the only time that Patrick could not identify the defendant was

when he gave a statement of recantation to Vella. Recantation statements are highly suspect and

unreliable. People v. Brooks, 187 Ill. 2d 91, 132 (1999). As such, the jury was free to reject

Patrick’s recantation statement and find sufficient certainty from his other statements and his

trial testimony.

¶ 35   Finally, as to the fifth factor—the length of time between the crime and the

identification—Patrick identified the defendant only one day after the murder occurred. This

clearly supports a finding that the identification was valid.      Cf. Slim, 127 Ill. 2d at 313

(determining that identification made 11 days after crime supported finding that identification

was valid).

¶ 36   We next address the defendant’s argument that the State failed to prove the defendant

accountable for the offenses because it failed to present any evidence that the defendant intended

to aid and abet a murder and an attempted murder.

¶ 37   To sustain a conviction based upon an accountability theory, the State must establish that

the defendant: (1) solicited, ordered, abetted, or agreed or attempted to aid another in the

planning or commission of the offense; (2) participated before or during the commission of the

offense; and (3) had the concurrent, specific intent to promote or facilitate the commission of the

offense. 720 ILCS 5/5-2(c) (West 2010); People v. Craigen, 2013 IL App (2d) 111300, ¶ 33. To

prove intent, the State must present evidence that the defendant shared the criminal intent of the

principal or that there was a common criminal design. People v. Fernandez, 2014 IL 115527, ¶

13.

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2014 IL App (2d) 121368

¶ 38   While mere presence at the scene of a crime, alone, does not render a person accountable,

it is a factor that may be considered with other circumstances when the trier of fact determines

accountability. 720 ILCS 5/5-2(c) (West 2010). Other factors that may be considered are the

maintenance of a close affiliation with the companion after the commission of the crime, flight

from the scene, and the failure to report the crime. Craigen, 2013 IL App (2d) 111300, ¶ 33.

Active participation in the offense is not a requirement for guilt under a theory of accountability.

People v. Taylor, 164 Ill. 2d 131, 140 (1995). A jury can infer a defendant’s accountability from

his approving presence at the scene of the crime and from evidence of conduct showing a design

on the defendant’s part to aid in the offense. People v. Tinoco, 185 Ill. App. 3d 816, 823 (1989).

Further, to obtain a conviction based on accountability, the State must prove that the principal

actually committed the offense. People v. Chirchirillo, 393 Ill. App. 3d 916, 922 (2009).

¶ 39   Again, taking the evidence in the light most favorable to the State, we believe that the

jury could conclude beyond a reasonable doubt that the defendant was guilty of murder and

attempted murder under a theory of accountability. The evidence indicates that the defendant

instigated the altercation when he disparaged the gang that Robinson and Patrick were in. Based

on Samuel’s testimony, the jury could find that the defendant knew that Robinson was in a rival

gang and that Robinson would find his hand gestures insulting. Patrick explained that the

defendant’s actions indicated that he was looking to start a fight. Consistent with this perceived

desire to start a fight, the defendant was driving very slowly while Isaac was wearing a bandana

around his face and holding a rifle. Patrick explained that Isaac’s wearing the bandana indicated

that he was about to start shooting. After Patrick threw a brick at the defendant’s vehicle, the

defendant stopped abruptly, which allowed Isaac to get out of the vehicle and shoot at both

Robinson and Patrick. The defendant drove away quickly after Isaac returned to the vehicle.

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2014 IL App (2d) 121368

Based on all of this evidence, the jury could reasonably infer that the defendant intended to aid

and abet the murder of Robinson and the attempted murder of Patrick.

¶ 40   In so ruling, we note that the defendant correctly points out that flashing gang symbols

does not by itself establish an intent to commit a crime. See People v. Gonzalez, 142 Ill. 2d 481,

485 (1991) (citing instances of flashing gang symbols that did not immediately precede violent

altercations). Similarly, a defendant’s knowledge that his passenger has a gun does not establish

by itself that the defendant approved of his passenger using that gun to commit a crime. See

People v. 186 Ill. 2d 439, 448 (1999) (driver found not guilty of aggravated discharge of a

firearm even when he knew that his passenger had a gun). However, in Gonzalez and Taylor, the

defendant’s actions were much less indicative of an intent to assist with the commission of a

crime. As set forth above, considering the totality of the defendant’s conduct in this case, the

jury could infer that the defendant aided and abetted Isaac in committing the charged crimes.

¶ 41   The defendant further argues that the State did not establish that he and Isaac were acting

in concert, because it did not establish that Isaac was in a gang. The defendant contends that, as

Isaac was the alleged principal in a “gang-related” shooting, Isaac’s lack of gang status was

relevant. Because there was no evidence that Isaac was a gang member, the defendant insists

that there is absolutely nothing that proves that he should have known that Isaac intended to step

out of the Tahoe and shoot at two people who were not his rivals.

¶ 42   Although the record does not establish that Isaac and the defendant were in the same

gang, the evidence does establish that the defendant and Isaac are brothers. The jury could

reasonably infer that Isaac and the defendant’s familial relationship was a basis for them to work

in concert. Moreover, even absent a shared gang affiliation, there was other evidence that

suggested that the defendant was aware of and approved of Isaac’s plan to shoot at the victims.

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2014 IL App (2d) 121368

As described above, the defendant instigated the altercation by flashing provocative gang

symbols at the victims. Shortly thereafter, the defendant was slowly driving by the victims while

Isaac was wearing a bandana across his face and was armed with a rifle. It would be counter to

human experience for the jury to conclude that the defendant was not aware that Isaac was about

to commit a crime. See People v. Calahan, 272 Ill. App. 3d 293, 299-300 (1995) (explaining

that it is a well-recognized aspect of criminal conduct that the perpetrator will seek to conceal his

identity). The defendant gave Isaac an opportunity to shoot at the victims when he stopped his

vehicle abruptly. He then fled from the scene and did not report the crime. These circumstances

support a finding that the defendant was accountable for Isaac’s actions.

¶ 43    The defendant also emphasizes that one cannot be found guilty on a theory of

accountability if the principal is not guilty. See Chirchirillo, 393 Ill. App. 3d at 922. He points

out that Isaac was acquitted of the charged offenses. However, just because a different jury

acquitted Isaac does not mean that the jury in the instant case could not find that he was in fact

the shooter. Cf. People v. Martinez, 389 Ill. App. 3d 413, 418 (2009) (acquittal of a codefendant

does not establish the defendant’s innocence and should not be given conclusive effect against

the State in favor of a stranger to that trial).

¶ 44    Further, the defendant points out that, after the shooting, Horton described the driver as

appearing scared. The defendant argues that the logical inference from this observation was that

the driver was scared at what the shooter was doing and that he did not acquiesce in the shooter’s

actions. An equally plausible inference, however, was that the driver was scared or surprised at

seeing someone who might be able to identify him later as having been involved in the crime.

Of course, it was for the jury to determine which of these competing inferences was correct.

People v. Janik, 127 Ill. 2d 390, 401 (2001).

                                                   - 13 -
2014 IL App (2d) 121368

¶ 45    The defendant next argues that he was deprived of a fair trial when Samuel falsely

testified that his son’s dying words were “that damn Ricardo shot me.” The defendant contends

that, because the evidence against him was so threadbare, Samuel’s false testimony necessarily

had a devastating impact on the fairness of his trial. The defendant insists that the trial court

therefore erred in not granting a mistrial sua sponte.

¶ 46    Prior to trial, the trial court ruled that Robinson’s statement to Samuel, “that damn

Richard shot me,” would be admissible as a dying declaration. At trial, on direct examination,

Samuel testified that Robinson’s statement was “that damn Ricardo shot me.” Samuel then

testified to how his son was taken to a hospital and how he subsequently learned that his son had

died.   At this point, defense counsel objected, arguing that Samuel’s testimony, using the

defendant’s name, “Ricardo,” was substantially different from the statement using the name

“Richard,” which the trial court had allowed as a dying declaration. The trial court responded

that defense counsel could cross-examine Samuel as to the exact name that Robinson had used.

After the trial court’s ruling, the State asked for “the record [to] reflect that [Samuel] is clearly

distraught on the witness stand, weeping, audibly sobbing.” On cross-examination, Samuel

acknowledged that the name his son had actually used was “Richard.”

¶ 47    Even where defense counsel does not request a mistrial, the trial court has the discretion

to grant one. People v. Monroe, 366 Ill. App. 3d 1080, 1094 (2006); see also People v. Williams,

201 Ill. App. 3d 207, 221 (1990) (the trial court has the responsibility to see that the proceedings

are conducted in an orderly manner with proper decorum, and the control of the conduct of the

trial rests within its discretion). However, we do not believe that the trial court here abused its

discretion in not granting a mistrial. See People v. Sambo, 197 Ill. App. 3d 574, 584 (1990)

(determining that whether to order a mistrial is within the trial court’s discretion). Although the

                                               - 14 -
2014 IL App (2d) 121368

defendant complains about Samuel’s “highly emotional” testimony that Robinson identified the

defendant (“Ricardo”) as the person who shot him, the record is not clear as to whether Samuel

was “clearly distraught” when discussing his son’s dying declaration or when discussing how he

learned of his son’s death. In any event, the trial court was in a better position to assess whether

Samuel’s “highly emotional” testimony had an improper effect on the jury. See People v.

Beltran, 2011 IL App (2d) 090856, ¶ 68 (trial court was in better position to assess whether

prosecutor’s use of an “emotional voice” improperly inflamed the passions of the jury or

prejudiced the defendant); see also People v. Davis, 378 Ill. App. 3d 1, 13 (2007) (trial court is in

far superior position than reviewing court to assess witness’s tone of voice). Based on this

record, we believe that the trial’s court handling of this issue—allowing defense counsel to bring

out on cross-examination that in fact Robinson had identified “Richard,” not “Ricardo,” as his

shooter—did not deprive the defendant of a fair trial.

¶ 48   The defendant’s next contention on appeal is that the trial court abused its discretion

when it allowed evidence of his past gang activity. The defendant argues that, since he had

already conceded his gang affiliation, such evidence constituted improper character evidence,

which deprived him of a fair trial.

¶ 49   In response, the State argues that this issue is forfeited because the defendant did not raise

it at trial or in his posttrial motion. However, a review of the record indicates that the defendant

preserved this issue by raising it both at trial and in his posttrial motion. Thus, we will consider

the merits of his contention.

¶ 50   The State presented four witnesses to establish that the defendant was in the Latin Kings

street gang. Gary Anderson testified that on June 4, 2010, the defendant approached him and

informed him that he was a Latin King and that “he needed to stay away from other gangs.”

                                               - 15 -
2014 IL App (2d) 121368

¶ 51     Westley Kemp of the Winnebago County sheriff’s department testified that he was

assigned to Harlem High School as a school resource officer. On January 22, 2008, he learned

that graffiti had been discovered in one of the bathrooms. The defendant acknowledged that he

had drawn the markings.

¶ 52     John Anderson testified that he worked at a juvenile detention center. On October 15,

2006, he conducted a booking interview with the defendant. The defendant indicated that he was

a member of the Latin Kings.

¶ 53     Posley testified that he had specialized training in street gangs. He was familiar with

gang symbols, handshakes, hand gestures, codes, territories, and other indicia. He described the

symbols and hand gestures of the Latin Kings and the Insane Unknowns. He described those

two gangs as rivals. Posley reviewed a picture that the defendant had drawn in the Harlem High

School bathroom on January 22, 2008, and he testified that the markings were Latin Kings

graffiti. Based on the defendant’s drawing the graffiti as well as telling John Anderson and Gary

Anderson of his gang affiliation, Posley believed that the defendant was a member of the Latin

Kings.

¶ 54     Although jurors might have negative feelings about street gangs, it is not necessary to

exclude gang-affiliation evidence if it is otherwise relevant and admissible. People v. Blue, 205

Ill. 2d 1, 15 (2001). Evidence that relates to the defendant’s gang membership or activities may

be admitted at trial, despite its prejudicial effect, to establish a common purpose or design or to

provide a motive for an otherwise inexplicable act. People v. Patterson, 154 Ill. 2d 414, 458

(1992); People v. Knox, 241 Ill. App. 3d 205, 211 (1993). Relevant gang-related evidence is not

excluded simply because it is prejudicial; rather, it is admissible as long as it is relevant to an

issue in dispute and its probative value is not substantially outweighed by its prejudicial effect.

                                              - 16 -
2014 IL App (2d) 121368

People v. Johnson, 208 Ill. 2d 53, 102 (2003); Knox, 241 Ill. App. 3d at 211. A trial court’s

decision regarding the admission of gang-related evidence will not be disturbed absent an abuse

of discretion. People v. Villarreal, 198 Ill. 2d 209, 232 (2001).

¶ 55   We do not believe that the trial court abused its discretion in admitting the gang-related

evidence. The State’s theory of why the defendant and Robinson were involved in an altercation

at school was that they were in rival gangs. Gary Anderson’s and John Anderson’s testimony

was therefore relevant, as both testified that the defendant had identified himself to them as a

Latin King. Posley’s testimony was relevant, as it established that, not only did the defendant

claim to be a Latin King, he acted like a Latin King when he drew Latin Kings graffiti at school.

Posley’s testimony that the Latin Kings and the Insane Unknowns were rival gangs was also

clearly relevant. See People v. Hamilton, 328 Ill. App. 3d 195, 202 (2002) (evidence of gang

membership and rivalries is relevant when it establishes reasons for deadly gang behavior).

¶ 56   In so ruling, we reject the defendant’s argument that the presentation of any gang-related

evidence was unnecessary, and therefore unduly prejudicial, because defense counsel conceded

in opening statements that the defendant was in a gang. Opening statements are not evidence.

Defense counsel’s concession did not preclude the State from presenting evidence to support its

theory of the case. See People v. Mason, 274 Ill. App. 3d 715, 723 (1995) (State had the right to

present evidence that the defendant was a gang member, in order to demonstrate motive).

¶ 57   We also find that the defendant overstates how “excessive” the State’s gang-related

evidence was. Gary Anderson and John Anderson testified to little more than that the defendant

had identified himself as a Latin King. Kemp testified that the defendant had acknowledged

drawing graffiti in the school bathroom. Posley’s testimony, although more extensive, pertained

only to the issues in the case (significance of gang hand gestures and symbols, rivalries between

                                               - 17 -
2014 IL App (2d) 121368

gangs). We do not believe that the trial court abused its discretion in allowing such evidence to

establish the defendant’s gang affiliation. Cf. id. at 720-22 (gang-related evidence found to be

excessive where State presented evidence that had no bearing on case, such as elements of gang

life and details on various Chicago gangs and their affiliations with two large national

organizations).

¶ 58   The defendant further asserts that evidence that he had been at a juvenile detention center

was improper in light of our supreme court’s decisions in People v. Villa, 2011 IL 110777, ¶ 41,

and People v. Montgomery, 47 Ill. 2d 510 (1971). In those cases, our supreme court held that

juvenile adjudications are not admissible against a defendant unless they are used to impeach a

testifying defendant who has misled the jury about his criminal history or opened the door by

testifying about his prior adjudications. Villa, 2011 IL 110777, ¶¶ 46, 49; Montgomery, 47 Ill.

2d at 516. The defendant acknowledges that the State did not actually introduce any evidence of

a juvenile adjudication. However, he complains that evidence of his interaction with a juvenile

detention officer was just as bad because “[c]ommon sense dictates that one is not subject to

detention as a juvenile without some process and adjudication for wrongdoing.”

¶ 59   We find the defendant’s argument unpersuasive. As noted above, the State had the right

to present evidence that the defendant was in a gang. See Mason, 274 Ill. App. 3d at 723. In

presenting that evidence, the State also had the obligation to provide a proper foundation for it.

See People v. Nieves, 193 Ill. 2d 513, 537-38 (2000) (testimony that lacks a proper foundation as

to the witness’s personal knowledge of events amounts to no evidence at all). Thus, it was not

improper for the State to solicit John Anderson’s testimony that he was working at a juvenile

detention facility when he learned from the defendant that the defendant was a Latin King.

Moreover, the testimony was minimal, as Anderson did not testify to why the defendant was at

                                              - 18 -
2014 IL App (2d) 121368

the juvenile detention facility. Cf. People v. Markiewicz, 246 Ill. App. 3d 31, 40 (1993) (trial

court does not err where it carefully limits evidence of other crimes to that which is relevant to

the issues on which the other-crime evidence is admitted). As neither Knox nor Montgomery

barred the evidence at issue, and as the evidence was limited to the defendant’s identifying

himself as a Latin King, we cannot say that the trial court abused its discretion in admitting that

evidence. See Villarreal, 198 Ill. 2d at 232.

¶ 60   That being said, we do not believe that it was necessary for the State to introduce John

Anderson’s testimony, because it was duplicative of Gary Anderson’s testimony, i.e, the

defendant identified himself as a Latin King. Just because a prosecutor can introduce certain

evidence does not mean that he or she should.             The prosecutor’s interest in a criminal

prosecution “ ‘is not that it shall win a case, but that justice shall be done.’ ” Strickler v. Greene,

527 U.S. 263, 281 (1999) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)). Although

we have determined that the gang-related evidence described above was not excessive to the

point of being unduly prejudicial, we believe that the evidence was close to crossing that

forbidden threshold. We therefore urge the State to be more circumspect in its use of such

cumulative evidence in similar cases in the future.

¶ 61   The defendant’s final contention on appeal is that he was deprived of the effective

assistance of counsel.    Specifically, he argues that defense counsel was ineffective for (1)

eliciting evidence in support of the State’s case and (2) proceeding with a strategy that, if taken

to its logical conclusion, supported the State’s theory of the defendant’s guilt.

¶ 62   In his opening statement, defense counsel asserted that the jury might be presented with

credible evidence that (1) Isaac was at the scene of the crime; (2) Isaac had a motive to be there;

                                                - 19 -
2014 IL App (2d) 121368

and (3) the defendant’s vehicle was there. However, defense counsel insisted that there would be

no credible evidence that the defendant was there or that he had any motive to help Isaac.

¶ 63    In questioning Samuel, defense counsel elicited testimony that Robinson had been in a

fight with “Richard” at East High School and that “Richard” was a Latin King. Defense counsel

elicited from Lithsrup that, at school on May 14, 2010, Isaac complained to her that someone had

broken windows on his Chevy Suburban.

¶ 64    In closing arguments, defense counsel argued that “Richard really is Isaac.” He noted

that Isaac and Robinson went to the same high school. Defense counsel argued that Isaac had a

motive to shoot Robinson, because he “was getting revenge for his car windows getting broken

out.”   Defense counsel then pointed to both Robinson’s dying declaration and Dangel’s

testimony that Isaac was in fact the one who had shot Robinson. Defense counsel further argued

that the defendant’s vehicle’s presence at the scene did not mean that the defendant was there.

Defense counsel further insisted that the defendant had no motive to shoot Robinson and that

there was no proof that he had helped Isaac.

¶ 65    In reviewing a claim of ineffective assistance of counsel, the standards set forth in

Strickland v. Washington, 466 U.S. 668 (1984), apply. People v. Albanese, 104 Ill. 2d 504, 526-

27 (1984).    To succeed on such a claim, a defendant must show both that his counsel’s

performance “fell below an objective standard of reasonableness” (Strickland, 466 U.S. at 688)

and that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result

of the proceeding would have been different” (id. at 694). A defendant is entitled to competent

representation, not perfect representation. People v. West, 187 Ill. 2d 418, 432 (1999). Errors in

strategy do not constitute ineffective assistance of counsel. People v. Gonzalez, 407 Ill. App. 3d

1026, 1038 (2011). Only when a strategic decision is shown to be so ill-chosen that it permeates

                                               - 20 -
2014 IL App (2d) 121368

the entire trial with obvious unfairness will the strategy constitute ineffective assistance of

counsel. People v. Manning, 241 Ill. 2d 319, 343 (2011).

¶ 66   Here, we do not believe that defense counsel’s strategy rose to the level of ineffective

assistance of counsel. Defense counsel was confronted with some difficult evidence: two

witnesses placed Isaac at the scene of the crime and four witnesses placed the defendant’s

vehicle there. Rather than argue that all of those witnesses were mistaken, and thereby possibly

undermine his own credibility, defense counsel chose to concede that evidence and instead argue

that there was no credible evidence that placed the defendant himself at the scene of the crime.

As Patrick was the State’s only witness who placed the defendant at the crime scene—and as he

gave multiple conflicting accounts about what happened on the day in question―defense

counsel’s strategy that focused on attacking Patrick’s credibility was not unreasonable.

¶ 67   In so ruling, we reject the defendant’s argument that defense counsel was ineffective for

eliciting evidence that Isaac had an independent motive to kill Robinson, i.e., revenge. Although

defense counsel, not the State, presented evidence that provided a motive for Isaac’s actions, the

record indicates that this was part of defense counsel’s strategy to point all of the blame away

from the defendant and toward Isaac. This evidence did not help the State prove part of its case

that it otherwise failed to prove. Cf. People v. Jackson, 318 Ill. App. 3d 321, 327-28 (2000)

(defense counsel was ineffective where his strategy established an element of the offense that

had not been established in the State’s case).

¶ 68                                      CONCLUSION

¶ 69   For the reasons stated, the judgment of the circuit court of Winnebago County is

affirmed.

¶ 70   Affirmed.

                                                 - 21 -


                                          NOT PRECEDENTIAL

   UNITED STATES COURT OF APPEALS
        FOR THE THIRD CIRCUIT
            ______________

                No. 09-4013
              ______________

      BRUCE BAYER, on his own behalf,
        and on behalf of minor children
             G.Z., P.Z., and J.B.;
     ANGELA BAYER, on her own behalf,
        and on behalf of minor children
              G.Z., P.Z., and J.B.

                                                  Appellants

                     v.

             MONROE COUNTY
     CHILDREN AND YOUTH SERVICES;
   COMMONWEALTH OF PENNSYLVANIA;
       MONROE COUNTY; SAT BAHL;
    WILLIAM BROWNING; HEATHER DRY;
        BRENDA RANTE; P. J. GEESE;
  ELIZA LONCOLA-HICKS; TARA SURRAGO;
    IRETHA NOLLS; DETECTIVE ROBSON;
 SGT. BOWMAN; CHIEF JOHN LAMBERTON;
       MARGHERITA WORTHINGTON;
     PRESIDENT JUDGE RONALD VICAN;
  ELIZABETH WEEKS; DAVID WILLIAMSON;
      BARRY COHEN; DAWN THORTON;
     ADEL HEINLEIN; DR. JUDY MUNOZ;
    DONNA ASURE; ROBERT NOTHSTEIN;
      WALTER CLATCH; ELLIS KARLE;
      DR. TAROLI; DR. COLEEN COPPER;
            DISTRICT ATTORNEY
       MARK PAZUHANICH, Former DA;
       DISTRICT ATTORNEY'S OFFICE
             MONROE COUNTY;
     REGIONAL CHILDREN AND YOUTH;
FOSTER CARE DIVISION OF MONROE COUNTY

                     1
                                     ______________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                        (D.C. Civil Action No. 3-04-cv-02505)
                     Honorable A. Richard Caputo, District Judge
                                   ______________

                                 Argued December 16, 2010

    BEFORE: SLOVITER, GREENAWAY, JR., and GREENBERG, Circuit Judges

                                 (Filed: February 9, 2011)
                                      ______________

Peter G. Loftus (argued)
Loftus Law Firm
P.O. Box V, 1207 N. Abington Rd.
Waverly, PA 18471

   Attorney for appellants

Gerald J. Geiger (argued)
Newman, Williams, Mishkin, Corveleyn, Wolfe & Fareri
712 Monroe St.
Stroudsburg, PA 18360

   Attorneys for Monroe County appellees

Harry T. Coleman (argued)
41 North Main St.
3rd Floor Suite 316
Carbondale, PA 18407

   Attorneys for Pocono Mountain Regional
   Police Department appellees

Calvin R. Koons
John G. Knorr, III
Office of the Attorney General
Appellate Litigation Section
15th Floor, Strawberry Square
Harrisburg, PA 17102

                                            2
      Attorneys for Commonwealth of Pennsylvania appellees

                                     ______________

                               OPINION OF THE COURT
                                   ______________

GREENBERG, Circuit Judge.

       This matter comes on before this Court on appeal from a series of seven orders the

District Court entered, the last one on September 23, 2009, granting the various

defendants summary judgment and leaving plaintiffs-appellants without any cognizable

claims and without any defendants against whom to assert any possible claims. In

particular the orders from which plaintiffs appeal were entered on September 12, 2005,

September 29, 2005, February 16, 2006, June 29, 2006, January 10, 2007, October 15,

2007, and September 23, 2009. For the reasons we discuss in this opinion, we will affirm

all of the orders from which plaintiffs have appealed.

                                             I.

       Because this case has been before this Court on an earlier appeal, we rely in part

on our prior opinion in this case in Bayer v. Monroe County Children and Youth

Services., 577 F.3d 186 (3d Cir. 2009), in reciting the relevant factual and procedural

history. As we described in our prior opinion:

                     Plaintiffs P.Z. and G.Z. were minor children (9 and 11
              years old, respectively) at the time of the events at issue in
              this case. Plaintiff Angela Bayer is their biological mother,
              and Bruce Bayer, Angela's second husband, is their
              stepfather. Angela Bayer had primary custody of the
              children, and the children's biological father, Gabriel Zhanay,
              lived elsewhere and had visitation rights. According to

                                             3
              Angela Bayer's testimony, Zhanay was allowed to take the
              children for visits for part of one day each month.

Id. at 188-89. On Friday, January 10, 2003, an unidentified individual placed a telephone

call to the Monroe County Children and Youth Services (MCCYS) reporting that the two

minor children, G.Z. and P.Z., had been abused sexually by their biological father,

Gabriel Zhanay. Id. at 189. This call did not initiate the first contact between plaintiffs

and MCCYS, as

              [a]ccording to defendants, „[p]rior to January 14, 2003, P.Z.
              and G.Z. were interviewed not less than ten times by CYS
              regarding allegations of abuse.‟ These allegations included
              that their biological father had been serving the children
              alcohol, teaching them to steal, physically abusing them,
              showing them pornography, engaging in sexual acts in their
              presence, and encouraging self-mutilation. Defendants note
              that, when interviewed, the children „often recanted their
              statements.‟ Plaintiffs do not dispute the frequency of prior
              contact with Monroe County Children and Youth Services,
              but deny P.Z. and G.Z. „“often” recanted their stories.‟ The
              parties also dispute whether the Bayers, or the children
              themselves or their therapists, were responsible for reporting
              abusive conduct to Monroe County Children and Youth
              Services.

Id. at 189 n.1 (citations omitted) (alteration in original). On the same date as the

telephone call, January 10, 2003, as a result of the allegations, Detective Michael Robson

of the Pocono Regional Police Department served plaintiffs Angela and Bruce Bayer, the

mother and step-father of G.Z. and P.Z., with a notice of placement regarding protective

custody. Id. at 189. Pursuant to that notice, the children were removed from their home

                                              4
and placed in protective custody during an investigation of the children‟s biological

father concerning the allegations of sexual abuse.1 Id.

       Three days later, on Monday January 13, MCCYS caseworker Heather Dry

forwarded the information regarding the alleged abuse and removal of the children from

the home to Elizabeth Weeks, the agency‟s solicitor. Id. The following day, January 14,

Weeks filed an emergency petition in the Monroe County Court of Common Pleas

seeking an order authorizing MCCYS to take custody of the children, and Common Pleas

Judge Margherita Worthington granted the petition on the same day. Id. at 189-90.

       Two days later, there was a hearing on the custody matter before Judge

Worthington at which the biological parents, as well as the children, appeared and were

represented by counsel. Id. at 190. At that hearing the parties reached an agreement that

the children would remain in the custody of MCCYS and undergo psychological

evaluation and that there would be no contact between the parents and the children until

the next court hearing on February 20. The biological parents stated on the record that

they understood and consented to that agreement, though Angela Bayer claims that she

was under duress at that time.

       On January 28, MCCYS determined that the sexual assault allegations against the

children‟s biological father were unfounded.2 In accord with that finding, at the February

1
 The parties dispute whether the police took the children into custody or whether Angela
and Bruce Bayer brought the children to MCCYS. See Bayer, 577 F.3d at 189. It is not
necessary for us to resolve that dispute on this appeal or to remand the case to the District
Court for resolution of that question.

                                              5
20 hearing MCCYS recommended that MCCYS return the children to the Bayers‟

custody and the Court concurred with that recommendation and ordered the return of the

children. The Court specifically noted that there had been reasonable efforts to prevent

placement with MCCYS, but that the parties agreed on protective custody while

represented by counsel. Moreover, the Court believed that the allegations of sexual abuse

and the need for psychological evaluations showed that protective custody had been

necessary and was in the best interest of the children.

       In the aftermath of the foregoing proceedings, Angela and Bruce Bayer, on behalf

of themselves and the minor children, G.Z. and P.Z., and the Bayers‟ biological son J.B.,

who was not removed from the home, filed a pro se complaint on November 18, 2004,

asserting numerous claims against almost equally numerous defendants under various

provisions of state and federal law.3

       The District Court issued a series of six orders and associated written opinions in

response to motions filed by the parties, the end result being that only plaintiffs‟ section

1983 procedural due process claims against two defendants—Heather Dry, a caseworker

2
  MCCYS continued its investigation into the psychological health of the children and
investigated whether the children had been coached to claim that their father sexually
abused them or had made up the stories on their own.
3
  On December 22, 2004, the District Court ordered plaintiffs to retain an attorney to
represent the minor children, but plaintiffs did not comply with that order and
consequently the court dismissed the children from the suit on April 8, 2005.
Subsequently, however, the children came to be represented and the Court reinstated
them as plaintiffs on June 23, 2006. On January 10, 2007, the Court clarified that,
although the minor children had been reinstated as plaintiffs, they were entitled to pursue
only the claims that had not been dismissed prior to plaintiffs‟ June 23, 2006 motion to
reinstate the minor children as plaintiffs. Plaintiffs do not challenge that ruling on appeal.

                                              6
at MCCYS, and Sat Bahl, her supervisor—survived summary judgment. Though Dry

and Bahl claimed that they were immune from plaintiffs‟ action, the District Court ruled

that neither was entitled to either absolute or qualified immunity, and that plaintiffs could

present evidence in support of their section 1983 Fourteenth Amendment procedural due

process claim against them. The crux of plaintiffs‟ claim was that the failure to hold a

court hearing until six days after the minor children had been removed from the Bayer

household and placed in protective custody was a violation of plaintiffs‟ constitutional

rights.

          Dry and Bahl appealed to this Court, and in an opinion dated August 14, 2009, we

reversed the order of the District Court denying Dry and Bahl immunity as we concluded

that they were entitled to at least qualified immunity.4 Bayer, 577 F.3d at 191-93. We

held that even assuming “that plaintiffs had a constitutional right to a post-deprivation

hearing within 72 hours and that this right was clearly established at the relevant time, we

consider it objectively reasonable for defendants to have believed, under the law existing

at the time, that their particular conduct in this case was lawful and in keeping with this

right.” Id. at 193. We agreed with Dry and Bahl

                that they could reasonably have believed they had discharged
                their responsibilities with respect to plaintiffs‟ procedural due
                process rights by advancing the case to the point where a
                hearing could take place within the constitutionally prescribed
                time frame, and could reasonably have expected that their

4
  Although we discussed the issue, we did not decide whether Dry and Bahl were entitled
to absolute immunity because our ruling that they were entitled to qualified immunity
rendered a determination with respect to absolute immunity unnecessary to a resolution
of the case.
                                               7
              attorney and the court would hold the hearing in a timely
              fashion.

Id. (citation and internal quotation marks omitted). We explicitly declined to impose a

duty on MCCYS employees to “intervene in the court‟s scheduling of the subsequent

dependency hearing.” Id. On remand, the District Court on September 23, 2009, entered

an order granting Dry and Bahl summary judgment.

       Inasmuch as the District Court had dismissed plaintiffs‟ case against all of the

defendants except for Dry and Bahl before their appeal, the order on remand left

plaintiffs without any claims to assert and without any defendants against whom to assert

any possible claim. Plaintiffs now appeal to this Court, contending that the District Court

erred in: (1) dismissing their section 1983 Fourteenth Amendment procedural due

process claims; (2) dismissing their section 1983 Fourteenth Amendment substantive due

process claims; (3) ruling that certain defendants were entitled to qualified immunity; (4)

invoking the Rooker-Feldman doctrine; (5) dismissing their claims brought pursuant to

Pennsylvania state law; and (6) ruling that punitive damages were not appropriate in the

circumstances of this case.5 At oral argument plaintiffs‟ counsel clarified that they were

limiting their challenges to the District Court‟s rulings with respect to the following

defendants: P.J. Geese, a caseworker at MCCYS; Detective Michael Robson of the

Pocono Mountain Regional Police; and Monroe County/ MCCYS. The District Court

5
 Plaintiffs also challenge the District Court‟s determination that Bruce Bayer, the step-
father of P.Z. and G.Z., lacked standing to bring suit. Here, the crux of plaintiffs‟
complaint relates to the custody of P.Z. and G.Z., and, because Bruce Bayer lacked any
legal or other right to custody of those children, we conclude that the District Court
correctly ruled that he lacked standing to bring this suit.
                                              8
had jurisdiction over this case under 28 U.S.C. §§ 1331 and 1343 and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of the order of the

District Court and, to the extent that the Court dismissed this case under Fed. R. Civ. P.

12(b)(6), we review the complaint to ascertain if it contains sufficient factual matter, that,

accepted as true, states a claim for relief that is plausible on its face. Ashcroft v. Igbal,

129 S.Ct. 1937, 1949 (2009).

                                              II.

       A district court‟s decision on a motion for summary judgment is subject to plenary

review. See McKenna v. City of Phila., 582 F.3d 447, 460 (3d Cir 2009). Summary

judgment is only appropriate if there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). On the

appeal we view all of the facts in the light most favorable to the nonmoving party.

Gottshall v. Consolidated Rail Corp., 56 F.3d 530, 533 (3d Cir. 1995).

                                              III.

       We will analyze plaintiffs‟ section 1983 due process claims first, because they are

the only federal law claims that they maintain on appeal. Plaintiffs, however, did not

name Detective Robson as a defendant in the counts of their complaint asserting

Fourteenth Amendment procedural and substantive due process violations under section

1983. We therefore will not analyze those claims as to him.

       As we have discussed, in our prior decision in Bayer we held that MCCYS

caseworker Dry and her supervisor, Bahl, were entitled to qualified immunity. 577 F.3d

at 191-93. Plaintiffs now appeal the dismissal of their claims against MCCYS

                                               9
caseworker P.J. Geese. But plaintiffs do not raise any claims against Geese separate and

distinct from those they brought against Dry and Bahl or allege that Geese was involved

in the underlying matter in a manner different than Dry and Bahl had been.6 Therefore,

Geese is entitled to qualified immunity just as we held that Dry and Bahl were.

         The foregoing determination leaves Monroe County/MCCYS as the sole potential

remaining defendant with respect to plaintiffs‟ section 1983 procedural and substantive

due process claims. “[A] local government may not be sued under § 1983 for an injury

inflicted solely by its employees or agents. Instead, it is when execution of a

government's policy or custom, whether made by its lawmakers or by those whose edicts

or acts may fairly be said to represent official policy, inflicts the injury that the

government as an entity is responsible under § 1983.” Monell v. Dep‟t of Soc. Servs. of

City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037-38 (1978). A plaintiff can

show a local government‟s custom and/or policy in the following manner:

                Policy is made when a decisionmaker possess[ing] final
                authority to establish municipal policy with respect to the
                action issues an official proclamation, policy, or edict.
                Custom, on the other hand, can be proven by showing that a
                given course of conduct, although not specifically endorsed or
                authorized by law, is so well-settled and permanent as
                virtually to constitute law.

                       In either instance, a plaintiff must show that an official
                who has the power to make policy is responsible for either the
                affirmative proclamation of a policy or acquiescence in a
                well-settled custom.

6
    In fact, if anything, Geese was less involved in this matter than Dry and Bahl.
                                               10
Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir. 1990) (internal citations and quotation

marks omitted) (alteration in original).

       The District Court dismissed Monroe County/MCCYS as a defendant because,

              reading the Complaint in the light most favorable to the
              Plaintiffs, no policy, practice, or custom of Monroe County
              has been alleged. Plaintiffs make only conclusory allegations
              that MCCYS has a policy of profiting illegally from removing
              children from their homes, however, the crux of Plaintiffs‟
              allegations is that Defendants overstepped the bounds of
              current procedures governing the removal of children.
              Plaintiffs simply do not allege a direct causal link between a
              policy, practice, or custom of Monroe County and the alleged
              violations of their constitutional rights.

App. at 42. We agree with the District Court that plaintiffs‟ conclusory allegations are

insufficient to support their contention that Monroe County/MCCYS has a policy,

custom, or practice of “seiz[ing] minor children from their parents without prior judicial

authorization, and without any reasonable basis to believe such a seizure is necessary to

protect children from imminent harm.” App. at 300, 305. We therefore will affirm the

Court‟s judgment dismissing Monroe County/MCCYS as a defendant in plaintiffs‟

complaint for failure to state a cognizable claim upon which relief may be granted insofar

as the complaint asserted section 1983 procedural and substantive due process claims.

       Because of our disposition of plaintiffs‟ section 1983 procedural and substantive

due process claims, which, as mentioned, are the only federal claims that plaintiffs

maintain on appeal, we need not discuss in detail the remainder of the issues that they

raise on appeal. We, however, do add the following.

                                            11
       Plaintiffs, in their brief on this appeal, argue that the District Court erred in ruling

that some defendants, not specified by name in the brief, were entitled to immunity. But,

because at oral argument plaintiffs‟ counsel clarified that their arguments on appeal were

limited to Geese, Robson and Monroe County/MCCYS, and the District Court did not

rule that any of those defendants were entitled to immunity, there is no reason for us to

address the issue.

       Plaintiffs‟ brief also urges that the District Court erred in dismissing their state law

claims. Plaintiffs do not, however, specify which state law claims should not have been

dismissed. In any event, we do not find any error in the Court‟s dismissal of the various

state law claims, and, as plaintiffs do not provide any supporting rationale for their

argument to the contrary,7 we will not reverse the District Court‟s rulings with respect to

the state law claims.

       Although plaintiffs challenge the District Court‟s application of the Rooker-

Feldman doctrine in this case, to the extent that the Court relied on the Rooker-Feldman

doctrine, it did so only with respect to defendants Dry, Geese, and Robson. But, as we

have discussed, both Dry and Geese are entitled to qualified immunity, and Robson was

7
  Plaintiffs claim that the District Court “dismissed the State Pendente Claims without a
discussion on the validity of each claim based upon the Rooker-Feldman doctrine.”
Appellants‟ br. at 21. That characterization of the Court‟s reasoning is incorrect, as the
Court analyzed each of plaintiffs‟ state law claims in its written opinions. The only state
law claim that the Court ruled that the Rooker-Feldman doctrine barred was plaintiffs‟
substantive due process claim pursuant to Article I, Section 1 of the Pennsylvania
Constitution. But even without regard for the Rooker-Feldman doctrine, the Court found
that that claim also was barred because there is no private right of action for damages
arising from violations of the Pennsylvania Constitution. Thus, a reversal of the
application of the Rooker-Feldman doctrine would not help plaintiffs.

                                              12
not named as a defendant in the counts of plaintiffs‟ complaint alleging section 1983

procedural and substantive due process violations—the only federal claims that plaintiffs

maintain on appeal—so we need not review the District Court‟s application of the

Rooker-Feldman doctrine.8

                                                 IV.

       In summary, because our affirmance of the District Court‟s orders leaves plaintiffs

without any viable claims or any defendants against whom to assert any possible claims

their case must fail. Therefore we will affirm the District Court‟s orders of September

12, 2005, September 29, 2005, February 16, 2006, June 29, 2006, January 10, 2007,

October 15, 2007, and September 23, 2009. Thus, we are affirming the orders granting

summary judgment and dismissing plaintiffs‟ case in its entirety.

8
 Of course, in view of our outcome plaintiffs are not entitled to punitive damages or,
indeed, compensatory damages either.
                                            13


Order                                                                                Michigan Supreme Court
                                                                                Lansing, Michigan

  December 23, 2013                                                                                Robert P. Young, Jr.,
                                                                                Chief Justice

                                                                                Michael F. Cavanagh
                                                                                Stephen J. Markman
  147740                                                                                Mary Beth Kelly
                                                                                Brian K. Zahra
                                                                                Bridget M. McCormack
                                                                                David F. Viviano,
  PEOPLE OF THE STATE OF MICHIGAN,                                                                                Justices
            Plaintiff-Appellee,
  v                                                                SC: 147740
                                                                   COA: 312464
                                                                   Van Buren CC: 11-017850-FH;
  JAMES LEE JUSTICE,                                               11-017999-FH; 11-018002-FH;
            Defendant-Appellant.                                   11-018003-FH

  _________________________________________/

        On order of the Court, the application for leave to appeal the August 14, 2013
  order of the Court of Appeals is considered, and it is DENIED, because we are not
  persuaded that the question presented should be reviewed by this Court.

                          I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                    foregoing is a true and complete copy of the order entered at the direction of the Court.
                          December 23, 2013
           d1216
                                                                              Clerk


272 So.2d 605 (1973)
Clarence SHEPPARD, alias
v.
STATE.
6 Div. 390.
Court of Criminal Appeals of Alabama.
March 20, 1973.
*606 Graydon L. Newman, Jr., Birmingham, for appellant.
William J. Baxley, Atty. Gen. and Herbert H. Henry, Asst. Atty. Gen., for the State.
TYSON, Judge.
The December, 1965, Term of the Grand Jury of Jefferson County, Alabama, indicted the appellant, Clarence Sheppard, for first degree murder. The appellant entered pleas of not guilty and not guilty by reason of insanity, and was taken to Searcy Hospital at Mt. Vernon, Alabama, where he was evaluated, and remained there until March, 1970. At this time appellant was declared competent to stand trial and was taken back to Birmingham where he was arraigned in December, 1970, accompanied by counsel. Trial was had in February, 1972. Appellant was found guilty of murder in the first degree, and the Jury's verdict and judgment fixed punishment at death.
The State's evidence established that the deceased, Lillian Lee Cunningham, had employed the appellant to do odd jobs around her home for several years prior to her death. This was established through testimony of her husband. Evidence at the trial showed that the appellant had been working around the house of the deceased on the morning she was killed by strangulation. The husband of Lillian Lee Cunningham found her body when he returned home from work near midnight on December 5, 1965; that items of clothing, a television set, a record player, some jewelry and a watch had been taken from his house. Testimony indicated that the deceased had been stabbed numerous times; that her throat had been cut; that a cord had been placed round her throat; and a towel had been forced down her throat, which caused her false teeth to strangle her. Testimony of a witness, Alex Welch, Jr., who accompanied the appellant to Mississippi, was that the appellant entered the house of the deceased, Lillian Lee Cunningham, on the night of her death and that he removed a television set, some clothes, a record player, and other items from the house; that the appellant accompanied the witness, Alex Welch, Jr., in his car to Meridian, Mississippi with another party, "Icie Mae," and that all the parties had a drinking party on the way to Meridian. Further testimony indicated that when they arrived in Meridian, the appellant hocked the television set, a watch, and record player, all being identified as belonging to the deceased, Lillian Lee Cunningham, and her husband. The money received by disposing of the above items was used by both the appellant and Alex *607 Welch, Jr., to buy whiskey and rent a room in Meridian, Mississippi; that when the appellant and Alex Welch, Jr., were arrested in Meridian, Mississippi, items of clothing, being identified as belonging to the deceased's husband, were found in the back seat of the car belonging to the State witness, Alex Welch, Jr.; that the other items that were hocked in Meridian, including a television, record player, and wrist watch, were recovered by the police and identified by the deceased's husband as belonging to the deceased and himself. A transistor radio was removed by the police from the home of Alex Welch, Jr.'s aunt in Cuba, Alabama, which was identified as having been left there by the appellant in route to Meridian.
Coroner W. L. Allen testified that the cause of death was "from strangulation due to the denture being in the larynx."
The trial court originally ordered the appellant to Searcy Hospital in Mt. Vernon, Alabama, where he had remained from February, 1966, until March, 1970, and had been diagnosed as a Schizophrenia Paranoid type.

I
Prior to trial, appellant's counsel filed a motion with the trial court for a dismissal of the case in that the appellant desired to require the doctor who had examined him within a month or two after the incident in question to appear in open court pursuant to subpoena and testify. The doctor had written appellant's counsel that pursuant to the provisions of Title 45, Section 226, Code of Alabama 1940, recompiled 1958, due to the nature of his duties and the welfare of his patients, he would be unable to personally appear but was sending the complete medical record of the appellant, properly authenticated for introduction at trial. These records were, of course, placed in evidence in the trial of this cause, but a letter written by Dr. Condom to appellant's counsel, wherein his condition was summarized, was disallowed by the trial judge as it had not been authenticated as a part of the medical record of the appellant.
Under the provisions of Title 45, Section 226, and Title 15, Section 297, Code, supra, we find that the trial court correctly ruled that the proper procedure to obtain the testimony of the physician in charge of the State mental hospital is by way of deposition under the aforesaid statutes, therefore, the trial court's ruling in this regard is free from error. See also Argo v. State, 282 Ala. 509, 213 So.2d 244.

II
Appellant objected to the introduction of several photographs made at the scene. We deem these photographs properly admitted under the rules set forth in Smarr v. State, 260 Ala. 30, 68 So.2d 6, and authorities therein cited.

III
At the close of the State's evidence, the appellant moved to exclude same and for a dismissal, contending that the State had not established a prima facie case. Our Court in Kizziah v. State, 42 Ala.App. 303, 162 So.2d 889, defined "prima facie evidence" as follows:
"`Prima facie evidence' means that which brings about a measure of proof which, unless it is self contradictory or is contradicted by the defense, would support the jury's inferring the existence of one or more elements of a crime."
In McDowell v. State, 238 Ala. 101, 189 So. 183, we find the following:
"It is well settled in this jurisdiction that it is the province of the judge to determine whether there is testimony sufficient to make it appear prima facie that the offense has been committed. The evidence on which the judge acts may not necessarily establish the corpus delicti. It may be, and often is, conflicting *608 and contradictory. In such case, the credibility of the witnesses and the sufficiency of the entire evidence are for the ultimate decision of the jury. Winslow v. State, 76 Ala. 42; Ryan v. State, 100 Ala. 94, 14 So. 868; Martin v. State, 125 Ala. 64, 28 So. 92.
"The corpus delicti is a fact, proof of which may be made by circumstantial evidence. If there is a reasonable inference deducible from the evidence of its existence, the court must submit the question of the sufficiency and weight of the evidence tending to support that inference to the jury. Martin v. State, supra; Lewis v. State, 220 Ala. 461, 125 So. 802; Wilson v. State, 191 Ala. 7, 67 So. 1010; Newell v. State, 115 Ala. 54, 22 So. 572."
Under the above authorities, we believe the trial court correctly overruled the appellant's motions.

IV
Finally, appellant's counsel cites us to Furman v. Georgia, and companion cases, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346.
The question presented in this case is identical to that presented in Hubbard v. State of Alabama [1973], 290 Ala., 274 So.2d 298, decided by the Supreme Court of Alabama that day.
On authority of Hubbard v. State of Alabama, supra, the sentence of death imposed on the defendant, Clarence Sheppard, is vacated and set aside. In lieu and instead thereof, the sentence is corrected to provide that the said Clarence Sheppard be imprisoned in the State Penitentiary for the term of his natural life. The clerk of this court shall furnish a certified copy of this order to the clerk of the Circuit Court of Jefferson County, and the clerk of that court shall issue a commitment in this case based upon this sentence of life imprisonment and shall forward the commitment to the Board of Corrections.
We have carefully examined the record in this cause as is our duty pursuant to Title 15, Section 389, Code of Alabama 1940, and find same to be free from error.
It follows that except as to the death sentence, the judgment of the circuit court is affirmed. With regard to the death sentence, the judgment of the circuit court is modified and the sentence is reduced to life imprisonment, and as modified, the judgment is affirmed.
Modified and affirmed.
ALMON, HARRIS and DeCARLO, JJ., concur.
CATES, P. J., concurs specially.
CATES, Presiding Judge (concurring).
I concur in Parts II, III and IV of my brother Tyson's opinion.
However, as to Part I, I consider that Code 1940, T. 45, § 226 cannot be used by the doctors of the State's insane hospitals as a refugefrom compulsory attendance as witnesses (after subpoena) in a criminal prosecution. The deposition called for in § 226 requires consent of the defendant.
First, the State Constitutionas well as the Federalgives the defendant the right of compulsory process for the attendance of witnesses. Our statute for attendance of witnesses (T. 7, § 448) extends the reach of a subpoena (under conditions) to the length and breadth of the State. The right to compulsory process is elaborated on in McElroy, Evidence (2d ed.) § 338.01.
Since the trial judge expressly stated that § 226, supra, was "no good in criminal cases"with which I agreethat section is not good authority on which to hang our decision in this case.
Here, I think that since the defendant failed to file the affidavit required by *609 Code 1940, T. 7, § 448, he was not entitled to a subpoena for a witness residing more than 100 miles from Birmingham.
Hence, I would substitute the foregoing for Part I of Judge Tyson's opinion.