In the Interest of: A.M., Appeal of: A.M. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF A.M. IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.M.
No. 1647 EDA 2012
Appeal from the Dispositional Order dated May 2, 2012
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No: CP-51-JV-0000584-2012
BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2014
Appellant A.M. appeals from the May 2, 2012, dispositional order of
the Court of Common Pleas of Philadelphia County (juvenile court), which
adjudicated her delinquent of harassment under Section 2709(a)(1), (2),
and (4) of the Crimes Code (Code), 18 Pa.C.S. § 2709(a)(1), (2), and (4). 1
Upon review, we affirm.
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1
adjudication of delinquency (the equivalent of a finding of guilt in criminal
matters), but rather is the dispositional order (the equivalent of the
judgment of sentence in criminal matters). In re J.D., 798 A.2d 210, 211
n.1 (Pa. Super. 2002). We have corrected the caption accordingly.
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The facts underlying this appeal are undisputed. On February 8, 2012,
a delinquency petition2 was filed against Appellant, alleging:
On or around 2/8/2012, at or near 5901 Malvern Avenue
(Beeber Middle School) in the City of Philadelphia, [Appellant]
knowingly, intentionally, recklessly caused/attempted to cause
bodily injury to the complainant, [School Police Officer] Johnnie
Baker, by slapping his hand and pushing him into a wall, thereby
causing injury including [back] pain. [Appellant] also threatened
the complainant.
Delinquency Petition, 2/8/12, ¶4. Appellant was charged with terroristic
threats with intent to terrorize another, harassment, simple assault,
recklessly endangering another person, and aggravated assault. 3 On May 2,
2012, the juvenile court conducted an adjudicatory hearing at which only the
finished up an arrest of another student, a narcotics arrest, in which
-5.
Explaining how Appellant had attempted to interfere with the arrest, he
testified:
As I was scuffling with the suspect, [Appellant] kept
bursting into the room screaming for me to let suspect go, then
asking him several times to give her his phone or his phone
number so she could call his people to come up to the school.
She was put out of the room several times. She kept bursting
into the room. She had my foot on the door while I was scuffling
with the suspect. Philadelphia Police showed up and assisted me
in removing her from the area. After we got that arrest taken
care of, [Appellant] was taken to the in-house room which is
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2
Unlike criminal prosecutions, juvenile court proceedings are initiated by a
petition pursuant to Section 6334(a) of the Juvenile Act, 42 Pa.C.S.A.
§ 6334(a), rather than by indictment, information, or criminal complaint.
3
18 Pa.C.S. §§ 2706(a)(1), 2709(a)(1), 2701(a), 2705, and 2702(a),
respectively.
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downstairs. The arrest was taking place on the second floor in
Room 215. She was sent to the in-house room on the first floor
which is Room 106, where she was to remain.
She kept coming up to the second floor, where she was
not to be. I asked her several times to return. She would not
return. I kept blocking her from going into Room 216. She
it, she was cussing. She would move one way, I stopped her
from going just standing in front of her. Finally, she slapped my
hand down, took both her hands and shoved me against the
wall. As I went to go place her under arrest, she told me I
better not come to work tomorrow.
God. After I was able to get her handcuffed down to the room
which is the school police office, 107B, I started to do the
paperwork, she was sitting down. She got up, ran out of the
room, ran through the marble hallway in the front of the
buildings, ran through the auditorium, around the back of the
bu
was encouraging children, but they were stopping me from
catching up to her. I was unable to locate her at the time.
Finally, I got a call from the house director who indicated she
was back in Room 216, where I came and was able to apprehend
her again. She was in the room again making a large
disturbance.
Id. at 5-
suggestion, the Commonwealth moved to amend the harassment charge
contained in the delinquency petition to add Subsection (4) of Section
2709(a) of the Code. As the hearing transcript reveals:
The [juvenile court]: I find this to be harassment. I find her
guilty of harassment. What do you have?
How is that one
going to be graded, as a summary?
summary offense.
The [juvenile court]: Why?
summary offense.
The [juvenile court]: Well, if it was charged as a summary
offense
2709 A1, a strike, shove, kick. Under 2709 C1, that is the
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grading section, Your Honor, an offense under subsection A1
constitutes a summary offense under the plain language.
The [juvenile court]: You may respond.
[Commonwealth]: Subsection A1 is a summary offense, Your
Honor; but, typically, a lesser included offense would be included
in the lead charge.
[Commonwealth]: The Crimes Code; right?
The [juvenile court]: Yes, A1.
summary offense.
The [juvenile court]: I did find her guilty of A1.
[Commonwealth]: Then it is a summary.
The [juvenile court]:
engages in a course of conduct or repeatedly commits acts which
serve no legitimate purpose, I find her guilty of that too.
[Commonwealth]: I would also ask for A4, Your Honor,
communicates threating or obscene words.
The [juvenile court]: And I find her guilty of 4. Anything else?
The [juvenile court]: Why? What about it?
be harassment, she has to be doing it to harass, annoy, or alarm
The [juvenile court]: Wait. On 4 it says communicates to or
about such other person any lewd, lascivious, threatening, or
obscene words, language, drawings, or characters. He said
The [juvenile court
offense in A, before any of the subsections, says that it has to be
done with the intent to harass someone.
e been a lawyer all
my life, pretty near all of my life, and there are sometimes
the Crimes Code to the point that what she did
say that what she did in that school was illegal,
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could, I would
guilty. I found her not guilty of everything I could find her not
Id. at 19-23 (emphasis added). The juvenile court adjudicated Appellant
delinquent under Section 2709(a)(1), (2), and (4) and dismissed the
remaining charges.4 Appellant filed a Pa.R.A.P. 1925(b) statement of errors
of complained of on appeal, in which she alleged, inter alia, that the juvenile
court erred in adjudicating her delinquent for harassment under Section
2709(a)(4) of the Code, a third-degree misdemeanor, when she was
charged with harassment only under Section 2709(a)(1), a summary
offense. Disagreeing with her argument, the juvenile court concluded in its
summary of her alleged delinquent behavior as contained in the
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4
Section 2709(a) provides in relevant part:
A person commits the crime of harassment when, with intent to
harass, annoy or alarm another, the person:
(1) strikes, shoves, kicks or otherwise subjects the other person
to physical contact, or attempts or threatens to do the same;
(2) follows the other person in or about a public place or places;
...
(4) communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language, drawings or
caricatures[.]
18 Pa.C.S. § 2709(a).
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juvenile court reasoned:
[A]s indicated in the attached [delinquency] [p]etition the
alleged acts included allegations that [Appellant] threatened the
complainant. These allegations unquestionably would suggest a
finding of guilty under Section 2709(a)(4) which requires proof
that a person, with the intent to harass, annoy or alarm another
person, communicates to such other person in any threatening
words. This [c]ourt found beyond a reasonable doubt that
Appellant made a threat to the complainant by stating that he
better not come to work the next day.
Id. at 3.
On appeal,5 Appellant argues only that the juvenile court erred as a
[her] guilty of harassment under [Section 2709(a)(4)], a misdemeanor of
the third degree, where the [delinquency] petition filed against her only
charged her with harassment under [Section 2709(a)(1)], graded as a
al notice of the charges, guaranteed by the Sixth
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5
Our standard of review of dispositional orders is well-
Act grants broad discretion to the court when determining an appropriate
disposition. We will not disturb a disposition absent a manifest abuse of
In the Interest of R.D., 44 A.3d 657, 664 (Pa. Super. 2012),
appeal denied, 56 A.3d 398 (Pa. 2012) (quoting In the Interest of
R.D.R., 876 A.2d 1009, 1013 (Pa. Super. 2005)). An abuse of discretion
bias, or ill-
Commonwealth v. Rodriguez, 81 A.3d 103, 106 (Pa. Super. 2013)
(quotation omitted).
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Amendment to the Federal Constitution and by Article I, Section 9 of the
Id. at 14. Specifically, she argues
never put on notice that she could be adjudicated of harassment as a
Id. at 15.
At the outset, based upon our review of the record, we note that
Appellant has failed to preserve this issue for appellate review. As the
hearing transcript indicates, Appellant failed to challenge before the trial
harassment under Section 2709(a)(4) on constitutional grounds. Rather,
Appellant challenged only the resulting delinquency adjudication on the basis
remarked at the hearing:
I would simply say, Your Honor, for it to be harassment, she has
to be doing it to harass, annoy, or alarm another person. I
would argu
her mouth quickly.
....
before any of the subsections, says that it has to be done with
the intent to harass someone.
N.T., 5/2/13, at 21-22. Further, the record indicates that Appellant, for the
first time, raised the constitutional (due process) issues in her Rule 1925(b)
statement. It is well-settled that issues not raised before the trial court
cannot be advanced for the first time on appeal. See Pa.R.A.P. 302(a).
Issue preservation is foundational to proper appellate review
. . . . By requiring that an issue be considered waived if raised
for the first time on appeal, our courts ensure that the trial court
that initially hears a dispute has had an opportunity to consider
the issue. This jurisprudential mandate is also grounded upon
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the principle that a trial court . . . must be given the opportunity
to correct its errors as early as possible. Related thereto, we
have explained in detail the importance of this preservation
requirement as it advances the orderly and efficient use of our
judicial resources. Finally, concepts of fairness and expense to
the parties are implicated as well.
In re F.C. III, 2 A.3d 1201, 1212 (Pa. 2010) (citations omitted). Thus,
Commonwealth v. Kohan, 825 A.2d
702, 706 (Pa. Super. 2003). As in this case, even if the trial court decides
complained of on appeal, such issue is still not properly preserved for
appellate review. See Commonwealth v. Melendez-Rodriguez, 856 A.2d
1278, 1287-89 (Pa. Super. 2004) (en banc). Nonetheless, because Appellee
does not raise the issue of waiver in its brief, we do not reject as waived
In support of her argument that her delinquency adjudication under
Section 2709(a)(4) be set aside, Appellant chiefly relies on Commonwealth
, 449 A.2d 642 (Pa. Super. 1982). We, however, conclude that
such reliance is misplaced because the instant case is distinguishable from
. In O
third degree because the information only charged him with disorderly
Id. at 643. As we explained in :
A purported variance between the indictment and the offense
could mislead the defendant at trial, involves an element of
prepare his
defense, precludes the defendant from anticipating the
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the defendant. Generally stated, the requirement is that a
defendant be given clear notice of the charges against him so
that he can properly prepare a defense.
Id. (internal citations and quotation marks omitted). Thus, we concluded
because the appellant was not charged with disorderly conduct as a
misdemeanor of third degree, and no facts suggesting the same were
alleged in the information, he lacked the requisite notice to prepare his
defense. See id. at 644. Specifically, we reasoned that the difference in
the potential penalty between disorderly conduct as a summary offense and
a third- tial that had [the] appellant been
aware from the trial inception that the jury would be at liberty to convict him
Id.Instantly, although Appellant may not have been specifically aware of
the fact that she would be adjudicated delinquent for harassment under
Section 2709(a)(4) of the Code (a third-degree misdemeanor), sufficient
facts were contained in the delinquency petition indicating that she was
subject to harassment under Section 2709(a)(4). In particular, as the
juvenile court found, the delinquency petition alleged that Appellant
threatened the complainant, i.e.
-3.
M
impeach [Officer Baker] through the statement he gave to the police
regarding the allegation that [Appellant] communicated any threatening
e notice of a potential
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delinquency adjudication for harassment under Section 2709(a)(4). Id.Thus, based on the evidence of record, we conclude that Appellant was
sufficiently aware of the facts necessary to adjudicate her delinquent under
Section 2709(a)(4). But see Commonwealth v. Bricker, 882 A.2d 1008,
1020 (Pa. Super. 2005) (concluding the appellant was prejudiced because
information, [as a result of which the] [a]ppellant did not have knowledge of
In any event, even if we had determined that Appellant lacked notice
of a possible delinquency adjudication under Section 2709(a)(4), we still
would have to determine whether Appellant was prejudiced by such
adjudication. In Commonwealth v. Page, 965 A.2d 1212 (Pa. Super.
2009), appeal denied, 74 A.3d 125 (Pa. 2013), we explained:
Pursuant to Pennsylvania Rule of Criminal Procedure 564, an
t in form,
the description of the offense(s), the description of any person or
any property, or the date charged, provided the information as
[6]
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6
We find the reasoning in Page instructive and apropos to the instant case.
Particularly, Rule 334 of the Pennsylvania Rules of Juvenile Court Procedure
is substantially similar to Pa.R.Crim.P. 564. Like Pa.R.Crim.P. 564, Rule 334
provides in relevant part:
A. Amendment.
(1) The court shall allow a petition to be amended when there is
a defect in:
(a) form;
(b) the description of the offense;
(c) the description of any person or property; or
(Footnote Continued Next Page)
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Pa.R.Crim.P. 564. The purpose of this rule is t
defendant is fully apprised of the charges, and to avoid prejudice
by prohibiting the last minute addition of alleged criminal acts of
Commonwealth v.
Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006);
Commonwealth v. Hoke, 928 A.2d 300, 303 (Pa. Super.
2007). The test to be applied when evaluating a challenge to an
amended information was set forth in [] Bricker, 882 A.2d [at]
1019 [] (citation omitted), as follows:
Whether the crimes specified in the original
indictment or information involve the same basic
elements and evolved out of the same factual
situation as the crimes specified in the amended
indictment or information. If so, then the defendant
is deemed to have been placed on notice regarding
his alleged criminal conduct. If, however, the
amended provision alleges a different set of events,
or defenses to the amended crime are materially
different from the elements or defenses to the crime
originally charged, such that the defendant would be
prejudiced by the change, then the amendment is
not permitted.
Relief is warranted only when the amendment to the information
prejudices a defendant. Commonwealth v. Roser, 914 A.2d
447, 454 (Pa. Super. 2006), appeal denied, [] 927 A.2d 624(Pa. 2007); Sinclair, 897 A.2d at 1223. Factors to be
considered when determining whether Appellant was prejudiced
amendment changes the factual scenario; whether new facts,
previously unknown to appellant, were added; whether the
description of the charges changed; whether the amendment
necessitated a change in defense strategy; and whether the
timing of the request for the amendment allowed for ample
notice and preparation by appellant. Roser, 914 A.2d at 454;
Sinclair, 897 A.2d at 1223.
Page, 965 A.2d at 122-24 (emphasis added). Here, with the above
_______________________
(Footnote Continued)
(d) the date alleged.
(2) The court shall not allow a petition to be amended if the
petition alleges a different set of events or offenses, where the
elements or defenses are materially different from the elements
or defenses to the offense originally petitioned.
Pa.R.J.C.P. 334(A) (emphasis added).
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add harassment under Section 2709(a)(4) of the Code was not prejudicial to
Appellant. In fact, we observe that, in her brief, Appellant has failed to
allege any harm or prejudice that she has suffered as a result of her
delinquency adjudication under Section 2709(a)(4). Regardless, because
her adjudication under Section 2709(a)(4) arose from the same set of
events and offenses (harassment), we necessarily would conclude Appellant
has failed to demonstrate that her delinquency adjudication for harassment
under Section 2709(a)(4) of the Code was prejudicial. Accordingly, the
juvenile court did not err in adjudicating her delinquent under Section
2709(a)(4), a third-degree misdemeanor.
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2014
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