In Re: K.M., a Minor ( 2018 )

J-S10038-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: K.M., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: K.M., A MINOR :
:
:
:
:
: No. 3196 EDA 2016
Appeal from the Dispositional Order September 2, 2016
In the Court of Common Pleas of Philadelphia County Juvenile Division at
No(s): CP-51-JV-0001172-2016
BEFORE: BOWES, J., OLSON, J., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED MARCH 16, 2018
Appellant K.M., a minor, appeals from the dispositional order entered
following an adjudication of delinquency for simple assault.1 Appellant asserts
that the evidence was insufficient to sustain the adjudication of delinquency
for simple assault because the Commonwealth presented no substantive
evidence of assaultive behavior. The Commonwealth agrees that “it is clear
that the trial judge did not permit the Commonwealth to enter the victim’s
prior record[ed] statement [regarding the assaultive behavior] into
evidence[.] . . . Accordingly, the Commonwealth does not oppose vacating
K.M.’s adjudication for simple assault.” Commonwealth’s Brief at 4. We
vacate the adjudication of delinquency for simple assault and discharge
Appellant.
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1 18 Pa.C.S. § 2701.
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Appellant and his girlfriend, N.C., were arguing by text message on the
day in question. N.C. was at a friend’s house, and Appellant arrived there,
wishing to speak with her. N.C. was not interested in doing so. Appellant
banged on the door. When N.C. later left the residence, Appellant approached
her and attempted to grab her by the arms. N.C.’s friend’s mother called the
police, and N.C. told police that Appellant had punched her and left a bruise
on her arm. Appellant was charged with committing acts constituting simple
assault and recklessly endangering another person.
An adjudicatory hearing was held on August 31, 2016, during which N.C.
testified that she had told the police that Appellant had punched her right arm
and left a bruise. N.C. also maintained that Appellant did not actually hit her
and that any injuries the police may have seen on the day in question pre-
dated her encounter with Appellant. On September 2, 2016, the juvenile court
granted Appellant’s motion for judgment of acquittal for recklessly
endangering another person, adjudicated Appellant delinquent on the charge
of simple assault, and entered a dispositional order for supervised probation.
Appellant filed a timely notice of appeal and court-ordered statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).2 Appellant
presents the following issue for our review:
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2The juvenile court did not issue an opinion pursuant to Pa.R.A.P. 1925(a)
because the presiding judge was no longer sitting. Given that the issues are
apparent from the face of the record, we need not remand for the filing of an
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Was not the evidence insufficient as a matter of law to sustain an
adjudication of delinquency for simple assault where the
Commonwealth presented no substantive evidence of assaultive
behavior?
Appellant’s Brief at 3.
In determining the sufficiency of the evidence, the test is
whether, viewing all evidence admitted at trial, together with all
reasonable inferences therefrom, in a light most favorable to the
Commonwealth as verdict winner, the trier of fact could have
found that the [juvenile’s] guilt was established beyond a
reasonable doubt.
In order to sustain its burden of proof for simple assault, the
Commonwealth must show that the [juvenile] “attempt[ed] to
cause or intentionally, knowingly or recklessly cause[d] bodily
injury to another.” 18 Pa.C.S. § 2701(a)(1)
In re M.H., 758 A.2d 1249, 1250-51 (Pa. Super. 2000) (some citations
omitted). Instantly, the Commonwealth did not introduce any evidence that
Appellant caused bodily injury to N.C., but merely elicited from N.C. the fact
that she had made a statement to police that Appellant had punched her. See
N.T., 8/31/16, at 25-26 (“I said that he did hit me and he did punch me. Yes,
I did say that.” (emphasis added)). However, as Appellant points out, the
actual statement averring that he had punched N.C. was not admitted into
evidence.
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opinion since we are not precluded from meaningful review. See
Commonwealth v. Hood, 872 A.2d 175, 178 (Pa. Super. 2005) (noting that
the purpose of Rule 1925(a) is to provide our Court with a statement of
reasons for the order entered in the lower court “to permit effective and
meaningful review of the lower court[’s] decisions. However, the lack of a
Rule 1925(a) opinion is not always fatal to our review, because we can look
to the record to ascertain the reasons for the order.”)
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Because the alleged prior inconsistent statement upon which the
delinquency disposition rests was not admitted into evidence, it is not part of
the record available for a review of the sufficiency of the evidence. See
Commonwealth v. D'Alonzo, 566 A.2d 1211, 1213 (Pa. Super. 1989)
(noting that “[i]n passing on the sufficiency of the evidence, we decline to
consider evidence which was not admitted into evidence and was therefore
not before the trial court.”).
Accordingly, we vacate the adjudication of delinquency for simple
assault and discharge Appellant.
Dispositional order reversed. Adjudication vacated. Appellant
discharged.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/16/18
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