In the Interest of: A.G.C., a Minor , 2016 Pa. Super. 128 ( 2016 )

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2016 PA Super 128IN THE INTEREST OF: A.G.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.G.C.
No. 1324 MDA 2015
Appeal from the Dispositional Order May 26, 2015
In the Court of Common Pleas of Berks County
Juvenile Division at No(s): CP-06-JV-0000487-2014
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
OPINION BY STEVENS, P.J.E.: FILED JUNE 16, 2016
A.G.C. (hereinafter “Juvenile”) appeals the dispositional order entered
in the Court of Common Pleas of Berks County by the Honorable Jeffrey K.
Sprecher on May 26, 2015. After a careful review, we affirm A.G.C.’s
adjudication of delinquency.
The Honorable Scott E. Lash, who presided over the adjudicatory
hearing, set forth the relevant facts and procedural history herein as follows:
The Commonwealth charged Juvenile with violating 18
Pa.C.S.A., Section 3126 (a)(7), indecent assault with person less
than 13 years of age, 18 Pa.C.S.A., Section 3126 (a) (8),
indecent assault with person less than 16 years of age, and 18
Pa.C.S.A., Section 3127, (a) indecent exposure. This [c]ourt held
an adjudicatory hearing on February 17, 2015. At the conclusion
of the hearing, this [c]ourt found the Juvenile involved in the
charge of indecent assault of person less than 13 years of age.
The remaining two charges were dismissed. On May 27, 2015,
the Juvenile was adjudicated delinquent and placed in a
*Former Justice specially assigned to the Superior Court.
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residential facility. On June 3, 2015, the Juvenile filed a Post-
Dispositional Motion, which was scheduled for a hearing on June
19, 2015. On July 31, 2015, the Juvenile filed a Notice of Appeal
to the Superior Court from the order of Adjudication of
Delinquency entered on May 26, 2015.
In his Concise Statement of Errors Complained Of On
Appeal, the Juvenile raises one issue for this court's review:1
The Court's finding that [Juvenile] was involved was so
contrary to the weight of the evidence presented as to
shock one's sense of justice, where the victim's
testimony was not credible as the offenses were not
reported until three to four months after they had
allegedly occurred, the victim testified that she was in
a relationship with [Juvenile] even though she never
wanted to be, the victim testified that [Juvenile] came
over [sic.] her house on several occasions when she
did not want him to and yet the victim's mother
testified that the victim had given permission for
[Juvenile] to come over, the three separate times that
the victim reported these offenses all vary considerably
and get progressively worse and the victim admitted
that she was angry with Appellant following a bad
breakup.
The Commonwealth presented one witness at the hearing,
the victim, M.C. M.C. testified she first met the Juvenile, age 16,
on or about her twelfth birthday, November 14, 2013, when a
friend introduced her to the Juvenile. She told him she was
turning twelve that day. Before they separated, he asked her out
multiple times but she declined.
Approximately three days later, she saw the Juvenile
again, this time outside her school. He insisted on accompanying
her to her home in the City of Reading. At his request, M.C.
allowed him into her house. They sat in the living room for two
hours and then he left.
The Juvenile returned to M.C.'s house every day for the
next four to five days. Every time he visited, the Juvenile and
M.C. sat on a couch in her living room with the T.V. on. During
this time, the Juvenile asked to kiss M.C. and despite her
refusals, they eventually kissed about ten times. Each time they
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kissed, the Juvenile placed his hand under M.C.’s shirt and bra
and touch her breasts with his bare hand. She also testified that
he took her hand, held it over his pants and used it to rub his
penis. On at least one occasion, the Juvenile tried to put his
hands down M.C.’s pants and said he wanted to finger her. His
hands got as far as the top of her panties but she stopped him
before he could go further. The Juvenile also asked her for oral
sex but she refused. On one occasion, the Juvenile exposed his
penis to M.C., who told him to pull up his pants.
On their last day together, the Juvenile and M.C. went to a
local park where he kissed her on the lips and touched her
breasts. The final personal interaction between the Juvenile and
M.C. occurred at her school at the close of the school year. The
Juvenile approached M.C. in the hallway but he was chased away
by a teacher.
Thereafter, the Juvenile texted M.C.’s iPod with a post
from his Facebook page stating that he wanted to be friends
again. In response, she said she wanted nothing to do with him.
The Juvenile then posted derogatory remarks about M.C.
On cross[-]examination, M.C. admitted that she had a
“bad breakup” with the Juvenile, that she was angry at him and
that both sides sent inappropriate Facebook messages to each
other. M.C. denied she told the Juvenile she was going to get
back at him and further denied that she reported what had
happened to her to stop the Juvenile from calling her names.
M.C. later reported the Juvenile's actions as described
above to the Reading School District in March 2014, to a camp
counselor in the summer of 2014, who in turn informed the
Berks County children & Youth Services, and finally to a Kelsey
Tothero in November 2014.
____
1
The Juvenile’s second issue arises from the denial of his Post-
Dispositional Motion by Senior Judge Arthur E. Grim. Senior
Judge Grim will address that issue in a separate opinion.
Judge Lash Opinion, filed 10/15/15, at 1-4. Judge Lash ultimately concluded
beyond a reasonable doubt that Juvenile had engaged in inappropriate
contact with M.C. and found him involved in one act of indecent assault. He
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further ordered that disposition be deferred to enable Juvenile to cooperate
with a sexuality evaluation.
Following a dispositional hearing held on May 26, 2015, Judge
Sprecher entered an Order adjudicating Juvenile delinquent in the instant
case and a related one and ordered placement.1 Juvenile filed a timely Post-
Dispositional Motion on June 3, 2015, wherein he raised three arguments.
On June 23, 2015, a hearing was held before Judge Sprecher as to part
three of Juvenile’s Post-Dispositional Motion. On July 20, 2015, a hearing
was held before Judge Grim regarding the first two parts of the motion.
Juvenile’s Post-Dispositional Motion was denied in its entirety on July 20,
2015, and Juvenile filed a timely notice of appeal in both dockets on August
3, 2015.2
On August 11, 2015, Judge Sprecher entered an Order directing
Juvenile to file a concise statement of the errors complained of on appeal
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1
Juvenile also had been charged at docket CP-06-JV-352-2014 with
misdemeanor possession of a weapon on school property pursuant to 18
Pa.C.S.A. § 912(b); however, the recommendation for placement from the
Juvenile Probation Office was based upon the results of the sexuality
evaluation which indicated Juvenile was at a high risk to recidivate.
2
In our Order of April 25, 2016, this Court quashed Juvenile’s appeal filed in
1323 MDA 2015, upon discerning that he had filed two appeals to one
dispositional order. We further directed counsel to file either a proper
petition for leave to withdraw as counsel and appropriate brief pursuant to
Anders v. California, 386 U.S. 738 (1967) and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981) or an advocate’s brief in 1324 MDA
2016. Counsel chose the latter and raises two issues therein.
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pursuant to Pa.R.A.P. 1925, and he filed the same on August 28, 2015. On
October 15, 2015, Judge Lash filed a Memorandum Opinion addressing
Juvenile’s challenge to the weight of the evidence presented at his hearing,
and on October 20, 2015, Judge Grim authored his Memorandum Opinion
pertaining to Juvenile’s challenge to the denial of a pre-adjudicatory
discovery request.3 In his brief, Juvenile presents the following questions for
our review:
[1] Whether the court abused its discretion and violated
[Juvenile’s] Federal and State constitutional rights for
compulsory due process to obtain witnesses by the court[’s]
ultimately denying [Juvenile’s] pretrial discovery request for
disclosure of information regarding the camp counselor to whom
the victim had reported the incident and/or in sustaining the
Commonwealth’s objection when [Juvenile] questioned the
victim about the name of the camp counselor and therefor erred
in denying [Juvenile’s] post-dispositional request for a new
adjudicatory hearing.
[2] The court’s finding that [Juvenile] was involved was so
contrary to the weight of the evidence presented as to shock
one’s sense of justice where the victim’s testimony was not
credible as the offenses were not reported until three to four
months after they had allegedly occurred, the victim testified
that she was in a relationship with [Juvenile] even though she
never wanted to be, the victim testified that [Juvenile] came
over to her house on several occasions when she did not want
him to, and yet, the victim’s mother testified that the victim had
given permission to [Juvenile] to come over, the three separate
times that the victim reported these offenses all vary
considerably and get progressively worse and the victim
admitted that she was angry with [juvenile] following a bad
breakup.
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3
We refer to Judges Lash, Grim, and Sprecher both by name and generally
as “the juvenile court” throughout this Opinion.
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Brief for [Juvenile] at 5.
Generally, information sought during the pre-adjudicatory discovery
and inspection process is governed by Pa.R.J.C.P. 340 (pertaining to
informal, mandatory and discretionary pre-adjudicatory discovery).4 Herein,
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4
Relevant herein, Pa.R.J.C.P. 340(c) states:
C. Discretionary. Upon motion of the attorney for the
Commonwealth, the juvenile's attorney, or the juvenile, if
unrepresented, for pre-adjudicatory discovery, the court may
order, subject to the juvenile's right against self-incrimination,
any discovery upon a showing that the evidence is material to
the preparation of the case and that the request is reasonable.
Comment: Under paragraph (C), the following are examples of
evidence that may be material to the preparation of the case: 1)
the names and contact information of eyewitnesses; 2) all
written or recorded statements, and substantially verbatim oral
statements, of eyewitnesses; 3) all written and recorded
statements, and substantially verbatim oral statements, made
by the juvenile, and by conspirators or accomplices, whether
such individuals have been charged or not; and 4) any other
evidence specifically identified, provided the requesting party
can additionally establish that its disclosure would be in the
interests of justice, including any information concerning any
person involved in the case who has received either valuable
consideration, or an oral or written promise or contract for
valuable consideration, for information concerning the case, or
for the production of any work describing the case, or for the
right to depict the character of the person in connection with his
or her involvement in the case.
Any evidence or material requested cannot interfere with the
juvenile's right against self-incrimination.
***
(Footnote Continued Next Page)
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Juvenile initially contends the disclosure of the camp counselor’s identity was
required for impeachment purposes and in doing so relies both upon
Pa.R.J.C.P. 340(c) and 23 Pa.C.S.A. § 6340(c), the latter of which provides
that individuals who report cases of suspected child abuse are treated as
confidential informants for purposes of prohibiting the disclosure of
identifying information.5 Brief for [Juvenile] at 19-20. Juvenile contends he
_______________________
(Footnote Continued)
This rule is not intended to affect the admissibility of evidence
that is discoverable under this rule or evidence that is the fruits
of discovery, nor the standing of the juvenile to seek suppression
of such evidence.
***
It should also be noted that as to material which is discretionary
with the court, or which is not enumerated in the rule, if such
information contains exculpatory evidence as would come under
the Brady rule, it is to be disclosed. Nothing in this rule is
intended to limit in any way disclosure of evidence
constitutionally required to be disclosed.4
Pa.R.J.C.P. 340 (c).
5
Specifically, this Subsection states:
(c) Protecting identity.--Except for reports under subsection
(a)(9) and (10) and in response to a law enforcement official
investigating allegations of false reports under 18 Pa.C.S. §
4906.1 (relating to false reports of child abuse), the release of
data by the department, county, institution, school,
facility or agency or designated agent of the person in
charge that would identify the person who made a report
of suspected child abuse or who cooperated in a
subsequent investigation is prohibited. Law enforcement
officials shall treat all reporting sources as confidential
informants.
23 Pa.C.S.A. § 6340(c) (emphasis added).
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had a constitutional right to obtain the name of all witnesses who would
have testified in his favor and proceeds to engage in an analysis as to when
the identity of a confidential informant must be disclosed in a criminal case,
likening such a situation to the facts of the within matter. Id. at 17-22.
In doing so, Juvenile avers his request to compel the production of the
identity of the camp counselor was material to his defense as M.C. told
varying accounts of her interactions with Juvenile to three, different
individuals over the span of a few months. Id. at 23. Juvenile maintains
that as a result of the juvenile court’s refusal to disclose this information, he
was prevented from directly impeaching M.C.’s testimony pertaining to the
camp counselor’s report and to the number of times the alleged incident had
occurred. Id. at 24. Juvenile maintains that “M.C. was the sole witness for
the Commonwealth; consequently, M.C.’s credibility was of extreme
importance. [Juvenile] does not contest the fact that he was given an
opportunity to cross-examine M.C. as to the inconsistent reports[;] however,
[Juvenile] was unable to inquire as to whether M.C. did in fact tell the camp
counselor that the incident only happened on one occasion.” Id. at 26.
Juvenile also stresses that on January 8, 2014, the juvenile court
ordered that the camp counselor’s identity be revealed to the parties, only to
rescind that order later the same day after which it noted Juvenile’s
objection. Id. at 28 (citing N.T. hearing, 1/8/15, at 7). Juvenile further
reasons that as a camp counselor is required to report suspected child abuse
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pursuant to 23 Pa.C.S.A. § 6311, (defining adults who are mandated
reporters of suspected child abuse), the disclosure of the counselor’s identity
herein would not hinder the flow of information. Id. at 30. Finally, Juvenile
contends the juvenile court abused its discretion and deprived him of his due
process rights in sustaining the Commonwealth’s objection to questions
posed to M.C. on cross-examination regarding the camp counselor’s name.
Juvenile reasons that his right to prepare his defense outweighed any desire
to protect the flow of information and the camp counselor’s identity. Id. at
32-33.
While both Juvenile and Judge Grim rely upon caselaw pertaining to
when the identity of a confidential informant who was an eyewitnesses to a
crime may be revealed, we find such an analysis inapplicable to the within
matter wherein Juvenile sought the identity of a mandatory reporter of
suspected sexual abuse for the purpose of impeaching M.C.’s testimony at
his adjudicatory hearing. However, for the reasons that follow and upon
consideration and application of Pa.R.J.C.P. 340(c) and 23 Pa. C.S.A. §
6340(c), supra, we find the juvenile court correctly denied Juvenile’s
request for disclosure of the identity of the camp counselor both during the
pre-adjudicatory discovery request stage and at the adjudicatory hearing.
Our analysis is guided by the principles embodied in our Statutory
Construction Act. See 1 Pa.C.S. 1921. Several sections are particularly
relevant herein including Section 1921(a), which specifies that “[t]he object
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of all interpretation and construction of statutes is to ascertain and
effectuate the intention of the General Assembly”, and that “[e]very statute
shall be construed, if possible, to give effect to all its provisions,” 1 Pa.C.S. §
1921(a). In addition, Section 1921(b), further instructs: “When the words of
a statute are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit,” id. § 1921(b).
Pa.R.J.C.P. 340(c)’s discussion of matters subject to discretionary, pre-
adjudicatory discovery must be read along with 23 Pa.C.S.A. § 6340(c)
which, as stated previously, unequivocally prohibits the release of identifying
information that pertains to one who made a report of suspected child abuse
or cooperated in a subsequent investigation thereof. While 23 Pa.C.S.A. §
6340(c) contains a statement that “[l]aw enforcement officials shall treat all
reporting sources as confidential informants,” the use of the term
“confidential informant” when read in context is a direction to law
enforcement to protect the identity of such mandatory reporters when
preparing documents such as reports, complaints and affidavits.
Contrary to Juvenile’s argument, the reference that reporting sources
should be deemed confidential sources does not mandate that their identity
is subject to disclosure as that of a confidential informant in a criminal case
may be. The analysis behind a determination to reveal the identity of the
latter, who has first-hand knowledge of a crime and often interacts with and
engages in certain transactions with a suspect at the direction of and under
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the supervision of law enforcement officials, is not analogous to the situation
presented herein, nor is it in keeping with the spirit of Section 6340(c) which
clearly is to prohibit the revelation of a mandatory reporter’s identity in most
circumstances.
Nor can we determine the identity of the camp counselor was
producible under Pa.R.J.C.P. 340(c) as either material to the preparation of
Juvenile’s case or reasonable. The counselor was not an eyewitness to the
contact between M.C. and Juvenile, nor was his or her testimony sought to
be used as exculpatory evidence. Moreover, Juvenile entered into a
stipulation on February 17, 2015, that the counselor’s report was later
reproduced in a separate document prepared by Berks County Children and
Youth Services. The parties also stipulated that the report of suspected child
abuse prepared by Children and Youth Services contained an account of the
camp counselor’s words and it was introduced into evidence at the hearing
as Defendant’s Exhibit 2. Id. at 4-5; Defense Exhibit 2. Counsel for
Appellant further indicated that were she called to testify, the Children and
Youth worker would indicate that the language in the report was taken
verbatim from that which she was provided from the reporter. Id. at 4.
Indeed, even without the camp counselor’s testimony, Juvenile was able to
impeach M.C. with regard to the statement she made to that individual.
M.C. testified on direct examination at the adjudicatory hearing that
Juvenile kissed and groped her multiple times in her home during the week
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of her twelfth birthday. N.T. hearing, 2/17/15, at 12-19. She also explained
that on the last day they were together, the pair left M.C.’s home to go to a
local park where Juvenile again kissed and fondled her. Id. at 19-20. On
cross-examination, M.C. indicated that she reported Juvenile’s actions to her
camp counselor in the summer of 2014. Id. at 32-33. When questioned
further regarding the inconsistencies in her testimony and the language
contained the report, M.C. stated the report was inaccurate because she had
told the camp counselor the kissing and fondling had occurred on multiple
occasions, although she admitted the report indicated the touching
happened only once. Id. at 33, 36. She also admitted she could not
remember whether she ever reported that Juvenile had exposed his penis to
her. Id. at 36-37.
To establish Juvenile had been involved in one count of indecent
assault, the Commonwealth was required to prove the following beyond a
reasonable doubt:
A person is guilty of indecent assault if the person has indecent
contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine or
feces for the purpose of arousing sexual desire in the person or
the complainant and the complainant is less than thirteen (13)
years of age.
18 Pa.C.S.A. § 3126(a)(7). In his Opinion, Judge Grim, although analyzing
the denial of the disclosure request under jurisprudence concerning the
disclosure of confidential informants generally, stated the revelation of the
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identity of the camp counselor was not crucial to Juvenile’s case for his or
her testimony would not have offered any evidence that would have
exonerated Juvenile. Judge Grim stressed that it became clear at the
adjudication hearing that M.C. provided differing accounts of her version of
the events leading to the Juvenile’s adjudication and that other charges
brought against him were dismissed. Judge Grim Opinion, 10/20/15, at 4-5
(citing N.T. hearing, 2/17/15, at 32-39). Indeed, Juvenile ultimately was
found to be involved in only one count of 18 Pa.C.S.A. § 3126(a)(7) despite
M.C.’s conflicting reports of and testimony concerning several encounters
with him. In light of the record herein, Juvenile failed to establish the
identification and subsequent testimony of the camp counselor would have
been exculpatory such that his or her absence at the hearing deprived him
of his constitutional rights.
Juvenile next argues that his delinquency adjudication was contrary to
the weight of the evidence. Specifically, Juvenile avers M.C.’s testimony was
not credible because she waited three or four months following the contact
before she reported Juvenile’s behavior. Brief for [Juvenile] at 36. Juvenile
states M.C.’s testimony that she did not want Juvenile to come to her home
contradicted her mother’s statements that she had given him permission to
do so. Id. Juvenile also maintains M.C. provided a different and
progressively more serious account of Juvenile’s offenses each of the three
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times she reported them. Finally, Juvenile stresses M.C. admitted she was
angry with Juvenile following their “bad breakup.” Id. at 16, 36.
“A weight of the evidence claim concedes that the evidence is
sufficient to sustain the verdict, but seeks a new trial on the grounds that
the evidence was so one-sided or so weighted in favor of acquittal that a
guilty verdict shocks one's sense of justice.” In re J.B., 106 A.3d 76, 95
(Pa. 2014) (citation omitted). Thus, we may reverse the juvenile court's
adjudication of delinquency only if it is so contrary to the evidence as to
shock one's sense of justice. In re J.M., 89 A.3d 688, 692 (Pa.Super.
2014), appeal denied, 102 A.3d 986 (Pa. 2014) (citation omitted).
Moreover, where the juvenile court has ruled on the weight claim below, an
appellate court's role is not to consider the underlying question of whether
the verdict is against the weight of the evidence. Id. Rather, this Court is
limited to a consideration of whether the juvenile court palpably abused its
discretion in ruling on the weight claim. Id. Hence, a juvenile court's denial
of a weight claim is the least assailable of its rulings, as conflicts in the
evidence and contradictions in the testimony of any witnesses are for the
fact finder to resolve. Id.In the matter sub judice, Judge Lash found the testimony of M.C. to be
credible and in support of this finding stated the following:
This [c]ourt concluded that M.C.’s testimony was credible. She
appeared to have testified in a forthright manner. Although
there were inconsistencies in her reporting of the Juvenile’s
behavior, particularly frequency of contact, for the most part,
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the written statements and in-court testimony were consistent
on the key facts: he kissed her, touched her breasts, and placed
his hand down her pants. The discrepancies were not sufficient
to create reasonable doubt. This [c]ourt thus concluded beyond
a reasonable doubt that the Juvenile engaged in inappropriate
conduct and found him involved in the act of indecent assault.
Judge Lash Opinion, filed 10/15/15, at 5.
Juvenile simply asks this Court to re-weigh the evidence and re-
evaluate the juvenile court’s credibility determinations, a task that is beyond
our scope of review. Following our review of the entire record, we conclude
the verdict is not so contrary to the evidence as to shock the conscience,
and, thus, the juvenile court properly denied Appellant’s weight of the
evidence claim.
Dispositional Order Affirmed. 6
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/16/2016
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6
“[I]t is established that we can affirm the trial court on any valid basis.”
Commonwealth v. Kemp, 961 A.2d 1247, 1254 (Pa.Super. 2008).
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