In the Interest of: C.R., a Minor ( 2015 )

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2015 Pa. Super. 67
IN THE INTEREST OF: C.R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.R., A MINOR
No. 1166 EDA 2014
Appeal from the Dispositional Order February 10, 2014
In the Court of Common Pleas of Monroe County
Juvenile Division at No(s): CP-45-JV-0000016-2013
IN THE INTEREST OF: C.R., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: C.R., A MINOR
No. 1586 EDA 2014
Appeal from the Dispositional Order April 23, 2014
In the Court of Common Pleas of Monroe County
Juvenile Division at No(s): CP-45-JV-0000016
BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*
OPINION BY MUNDY, J.: FILED APRIL 06, 2015
Appellant, C.R., a minor, appeals from the February 10, 2014
dispositional order entered following his adjudication of delinquency for
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*
Retired Senior Judge assigned to the Superior Court.
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involuntary deviate sexual intercourse with a person who suffers from a
mental disability, indecent exposure, and open lewdness, 1 and his
commitment to Diversified Treatment Alternatives (DTA) juvenile facility.
Additionally, Appellant appeals from the juvenile court’s subsequent April 23,
2014 order granting the Commonwealth’s petition for re-disposition and
placing Appellant in the Mathom House juvenile facility after Appellant was
denied admission into DTA.2 After careful review, we affirm.
The juvenile court has summarized the relevant factual and procedural
history of this case as follows.
An adjudication hearing was held on December 19,
2013, where D.D., a minor victim, D.D.’s father and
Trooper Nicholas De La Iglesia testified. The facts
elicited at the hearing are as follows[.] In December
2012, [Appellant] was 12 years old and D.D., the
victim, was 9 years old. After a complaint was
lodged, Trooper De La Iglesia conducted an
investigation of an alleged sexual assault on a school
bus in December 2012. Trooper De La Iglesia went
to the home of [Appellant], where his mother was
present. Trooper De La Igelesia read [Appellant] his
Miranda Rights after which [Appellant] and his
mother waived those rights and agreed to speak to
Trooper De La Iglesia. During the interview,
[Appellant] admitted that he pulled down his pants
on the school bus and told D.D. to “suck it.”
[Appellant] stated that D.D. performed oral sex on
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1
18 Pa.C.S.A. §§ 3123(a)(5), 3127(a), and 5901, respectively.
2
This Court has sua sponte consolidated Appellant’s appeals as the outcome
of Appellant’s appeal at 1166 EDA 2014 necessarily implicates our
jurisdiction to review Appellant’s claims at 1568 EDA 2014. See generally
Pa.R.A.P. 513.
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him on two separate occasions three weeks prior to
that day. [Appellant] also related that he knew D.D.
was mentally challenged.
D.D. also testified at the adjudication hearing.
D.D. was permitted to testify by contemporaneous
alternative methods after an in-camera-hearing.
D.D. stated that he sits next to [Appellant] on the
school bus. While on the bus, [Appellant], “sucked
his weewee” and then [Appellant] asked him to “suck
his weewee,” but he refused. D.D. then stated that
he touched [Appellant]’s “weewee” with his hand. In
addition, D.D.’s father testified about his son’s
mental limitations. D.D.’s father stated that D.D. is
mentally disabled and that D.D. was diagnosed with
autism, bipolar disorder and oppositional defiance.
D.D. has an Individual Educational Plan (IEP) at
Pleasant Valley School District and he rides to school
on a regular scheduled bus with other children.
At the end of the [December 19, 2013]
hearing, [the juvenile court] adjudicated [Appellant]
delinquent for the acts of Involuntary Deviate Sexual
Intercourse (F-1); Indecent Exposure (M-1); and
Open Lewdness (M-2).
Juvenile Court Opinion, 5/14/14, at 1-2.3
Following a disposition hearing on February 10, 2014, the juvenile
court ordered Appellant placed in the custody of Monroe County Children &
Youth Agency (CYA) for placement at DTA. Juvenile Court Order, 2/12/14,
at 1. On February 18, 2014, Appellant filed a timely post-disposition motion
pursuant to Pennsylvania Rule of Juvenile Court Procedure 620(B)(1). On
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3
The Juvenile Court’s opinion does not contain pagination. For ease of
review, we have assigned each page a corresponding number.
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March 20, 2014, the juvenile court denied Appellant’s post-disposition
motion and filed an opinion in support of said decision.
On April 3, 2014, the Commonwealth filed an “Expedited Motion for
Re-Disposition[.]”4 In said motion, the Commonwealth asserted that “[o]n
March 31, 2014, [Appellant] along with his parents, visited DTA as
scheduled[,]” and that after meeting with the program supervisor and
touring the facility, “[Appellant] and his parents were obstinate and wholly
uncooperative with the treatment process.” Commonwealth’s Expedited
Motion for Re-Disposition, 4/3/14, at ¶¶ 3-5. As a result, the DTA program
supervisor informed the Commonwealth that he felt “[Appellant]’s placement
with DTA would be detrimental to other juveniles at the facility and
unsuccessful for [Appellant] himself, and therefore rescinded DTA’s offer of
admission.” Id. at ¶ 6. The Commonwealth requested a re-disposition
hearing be scheduled to address the matter. Id. at ¶ 8. A hearing was held
on April 23, 2014, and on April 24, 2014, the juvenile court granted the
Commonwealth’s petition for re-disposition, and ordered that Appellant be
placed in the custody of Monroe County CYA and placed at the Mathom
House. Juvenile Court Order, 4/24/14, at 1.
While the re-disposition motion was pending, on April 10, 2014,
Appellant filed a timely notice of appeal from the December 19, 2013
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4
The Commonwealth’s motion was filed pursuant to Pa.R.J.C.P. 610.
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adjudication of delinquency and the juvenile court’s subsequent February 10,
2014 dispositional order. On April 11, 2014, Appellant was directed to file a
concise statement of errors complained of on appeal pursuant to
Pennsylvania Rule of Appellate Procedure 1925(b). On April 23, 2014,
Appellant timely complied, and on May 14, 2014, the juvenile court issued
its Rule 1925(a) opinion.
Thereafter, on May 20, 2014, Appellant filed a second notice of appeal
from the juvenile court’s April 23, 2014 order granting the Commonwealth’s
motion for re-disposition. On May 22, 2014, the juvenile court adopted its
May 14, 2014 Rule 1925(a) opinion for purposes of Appellant’s appeal at
docket number 1166 EDA 2014.5
On appeal, Appellant raises the following issues for our review.
[1.] Did the [juvenile] court violate Rule 1701 of the
Pennsylvania Rules of Appellate Procedure when it
granted the Commonwealth’s petition for re-
disposition after … Appellant had already filed a
notice of appeal to the Superior Court of
Pennsylvania?
Appellant’s Brief (1166 EDA 2014) at 7.
[2.] Where the testimony presented in the contested
hearing established that … Appellant and Victim,
both of whom are incapable of consenting to sexual
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5
We note that no portion of the juvenile court’s May 14, 2014 Rule 1925(a)
opinion addresses the issue Appellant raised in his appeal at docket number
1166 EDA 2014. Additionally, the Commonwealth has filed one brief under
both docket numbers, however, the Commonwealth has also failed to
address Appellant’s sole issue raised at docket number 1166 EDA 2014.
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activity as a result of their age, willingly took part in
sexual experimentation, was the decision of the
[juvenile] court to find only … Appellant delinquent of
crimes stemming from those acts against the weight
of the evidence, based upon insufficient evidence
and contrary to the law?
[3.] At the time of the disposition, did the [juvenile]
court fail to adequately state upon the record
reasons sufficient to justify placing … Appellant in a
juvenile rehabilitation facility?
Appellant’s Brief (1586 EDA 2014) at 7.
We begin by addressing Appellant’s appeal at 1166 EDA 2014,
asserting that the juvenile court violated Pennsylvania Rule of Appellate
Procedure 1701 by granting the Commonwealth’s motion for re-disposition.
Appellant’s Brief (1166 EDA 2014) at 12. Specifically, Appellant asserts that
the juvenile court “altered the disposition [of the February 10, 2014 order]
by changing the location of placement after … Appellant had already filed an
appeal.” Id.
Rule 1701, in pertinent part, states the following.
Rule 1701. Effect of Appeal Generally
(a) General rule. Except as otherwise prescribed by
these rules, after an appeal is taken or review of a
quasijudicial order is sought, the trial court or other
government unit may no longer proceed further in
the matter.
(b) Authority of a trial court or agency after
appeal. After an appeal is taken or review of a
quasijudicial order is sought, the trial court or other
government unit may:
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(1) Take such action as may be necessary to
preserve the status quo, correct formal errors
in papers relating to the matter, cause the
record to be transcribed, approved, filed and
transmitted, grant leave to appeal in forma
pauperis, grant supersedeas, and take other
action permitted or required by these rules or
otherwise ancillary to the appeal or petition for
review proceeding.
(2) Enforce any order entered in the matter,
unless the effect of the order has been
superseded as prescribed in this chapter.
…
Pa.R.A.P. 1701.
In his brief, Appellant argues that Rule 1701(a) “authorizes the trial
court to take action necessary to preserve the status quo,” but that “[t]hese
exceptions do not permit the trial court to make any substantive
modifications to any order which is the subject of this appeal.” Appellant’s
Brief (1166 EDA 2014) at 12. However, pursuant to Rule 610, the juvenile
court may conduct a dispositional review hearing at any time. Specifically,
Rule 610 states, in pertinent part, as follows.
Rule 610. Dispositional and Commitment
Review
A. Dispositional Review Hearing. The court shall
review its disposition and conduct dispositional
review hearings for the purpose of ensuring that the
juvenile is receiving necessary treatment and
services and that the terms and conditions of the
disposition are being met.
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(1) In all cases, the court shall conduct
dispositional review hearings at least every six
months.
(2) In all cases, the juvenile shall appear in
person at least once a year.
(3) The court may schedule a review hearing
at any time.
B. Change in dispositional order. Whenever there
is a request for a change in the dispositional order,
other than a motion to revoke probation as provided
in Rule 612, notice and an opportunity to be heard
shall be given to the parties and the victim.
(1) The juvenile may be detained pending a
court hearing.
(2) A detention hearing shall be held within
seventy-two hours of the juvenile’s detention,
if detained.
(3) The juvenile shall be given a statement of
reasons for the discharge from a placement
facility or request for change in the
dispositional order.
(4) A review hearing shall be held within
twenty days of the discharge from the
placement facility or request for change in the
dispositional order.
….
Pa.R.J.C.P. 610.
Accordingly, upon receipt of the Commonwealth’s motion for
redisposition, the juvenile court scheduled a hearing to evaluate if the
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disposition was still serving the interest of Appellant and the protection of
society.6 The juvenile court had both the authority and obligation, under
Rule 610, to ensure that Appellant was “receiving necessary treatment and
services and that the terms and conditions of the disposition are being
met[.]” Further, Appellant’s pending appeal would not divest the juvenile
court of its reviewing authority, as it is required to continually evaluate
events and circumstances that occur after the original disposition. Appellant
filed his notice of appeal on April 10, 2014, after the parties had been made
aware that DTA had rescinded its invitation, and after the Commonwealth
had filed a petition for re-disposition as the juvenile court’s February 10,
2014 order could no longer be enforced as entered. Instantly, the terms of
the disposition could not be met because DTA had rescinded Appellant’s
invitation; therefore, the juvenile court properly entered a new dispositional
order pursuant to Rule 610 directing Appellant be placed in Mathom House.
As a result, Appellant’s first issue fails.
We turn now to Appellant’s two remaining issues in his appeal
docketed at 1586 EDA 2014. In his second issue, Appellant argues that the
evidence was insufficient because both Appellant and the victim are
incapable of consenting; therefore, they are equally incapable of being held
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6
We note that the record does not contain a copy of the April 23, 2014 re-
disposition hearing. It is the responsibility of Appellant to ensure all
necessary transcripts are included in the certified record. See generally
Pa.R.A.P. 1911(a).
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criminally liable. Appellant’s Brief (1586 EDA 2014) at 13-14. Appellant
further asserts that the verdict was against the weight of the evidence for
the same reason. Id. at 15-16. For the reasons that follow, we conclude
that both of Appellant’s arguments raised in his second issue lack merit.
“In reviewing the sufficiency of the evidence, we consider whether the
evidence presented at trial, and all reasonable inferences drawn therefrom,
viewed in a light most favorable to the Commonwealth as the verdict winner,
support the jury’s verdict beyond a reasonable doubt.” Commonwealth v.
Patterson, 91 A.3d 55, 66 (Pa. 2014) (citation omitted), cert. denied,
Patterson v. Pennsylvania, 2015 WL 731963 (U.S. 2015). “The
Commonwealth can meet its burden by wholly circumstantial evidence and
any doubt about the defendant’s guilt is to be resolved by the fact finder
unless the evidence is so weak and inconclusive that, as a matter of law, no
probability of fact can be drawn from the combined circumstances.”
Commonwealth v. Watley, 81 A.3d 108, 113 (Pa. Super. 2013) (en banc)
(internal quotation marks and citation omitted), appeal denied, 95 A.3d 277
(Pa. 2014). As an appellate court, we must review “the entire record … and
all evidence actually received[.]” Id. (internal quotation marks and citation
omitted). “[T]he trier of fact while passing upon the credibility of witnesses
and the weight of the evidence produced is free to believe all, part or none
of the evidence.” Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super.
2014) (citation omitted), appeal denied, 101 A.3d 102 (Pa. 2014). “Because
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evidentiary sufficiency is a question of law, our standard of review is de novo
and our scope of review is plenary.” Commonwealth v. Diamond, 83 A.3d
119, 126 (Pa. 2013) (citation omitted), cert. denied, Diamond v.
Pennsylvania, 135 S. Ct. 145 (2014).
Instantly, Appellant challenges his convictions for involuntary deviate
sexual intercourse with a person who suffers from a mental disability,
indecent exposure, and open lewdness, the respective statutes for which
provide, in relevant part, as follows.
§ 3123. Involuntary deviate sexual intercourse
(a) Offense defined.--A person commits a felony
of the first degree when the person engages in
deviate sexual intercourse with a complainant:
…
(5) who suffers from a mental disability which
renders him or her incapable of consent; or
18 Pa.C.S.A. § 3123(a)(5).
§ 3127. Indecent exposure
(a) Offense defined.--A person commits indecent
exposure if that person exposes his or her genitals in
any public place or in any place where there are
present other persons under circumstances in which
he or she knows or should know that this conduct is
likely to offend, affront or alarm.
Id. § 3127(a).
§ 5901. Open lewdness
A person commits a misdemeanor of the third degree
if he does any lewd act which he knows is likely to be
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observed by others who would be affronted or
alarmed.
Id. § 5901.
In reviewing the sufficiency of the evidence regarding the
aforementioned statutes, we note that Appellant solely argues that the
Commonwealth failed to provide “testimony or evidence indicating that [the]
victim was somehow forced to take part in these acts with [Appellant] or
even that he did not want to engage in these acts.” Appellant’s Brief at 13.
Accordingly, the only element Appellant challenges on appeal is consent.
Relying on the case of In the Interest of B.A.M., 806 A.2d 893 (Pa.
Super. 2002), Appellant asserts that while the statutes do not exclude “from
criminal liability a child less than 13 years of age who engages in sexual
activity with another child less than 13, such a result would be absurd
because children younger than 13 are deemed by the legislature to be
incapable of consenting to (or initiating) sexual activity.” Appellant’s Brief
(1586 EDA 2014) at 14. First, we specifically disagree with Appellant’s
interpretation of B.A.M. We note that B.A.M. does not hold that a 13-year-
old cannot be held criminally liable for initiating sexual activity; rather, it
held that one child could not be held criminally liable for the acts of two 11-
year-olds who consensually engaged in the conduct. Id. at 897. Further, in
B.A.M., the record evidence supported that the act between the two minors
was consensual based on the victim’s testimony at trial. Id. at 898 (holding
“[i]t is therefore absurd to penalize one youngster while the other faces no
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sanction for precisely the same behavior. Either both boys must be punished
… or neither can be; as the trial court definitively found, both boys were
willingly participants”). This Court therefore concluded that the juvenile
could not be held criminally liable for IDSI with a child under what is now
Section 3123(b) or rape under what is presently Section 3121(c).
Further, a decade after B.A.M. was decided, this Court clarified our
intended holding.
We acknowledge that our use of the term
“consensual” in In re B.A.M. can be confusing and
may appear to be in conflict. Specifically, in In re
B.A.M. we held that “[t]here can be no legitimate
interest in prosecuting consensual sexual activity
between two children under 13,” but then go on to
state that children under the age of 13 are incapable
of consent. Appellant seeks to exploit that conflict,
while turning the intent of our holding in In re
B.A.M. on its head. According to Appellant’s
interpretation, any sexual activity between children
under the age of 13 is not a crime. Applying
Appellant’s interpretation of In re B.A.M. to other
scenarios, he would have that case determine that,
regardless of the level of forcible compulsion used, a
child under the age of 13 is incapable of rape. Such
a dangerous result was certainly not our intent and is
not supported by In re B.A.M.
To the contrary, we rendered the decision in In
re B.A.M. to protect children while avoiding
absurdities in application of our Legislature’s
statutes. The entire basis of our holding in In re
B.A.M. and the cases relied upon in reaching that
decision focused on the fact that “the statutes before
us are deliberately protective, specifically intended
by the Legislature to shield young children from
sexual predation by older teenagers and adults.” Id.
at 895. As was expressly noted by this Court in In re
B.A.M. “[o]ur appellate courts have stated
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definitively that those enactments were
designed to protect children from exploitation
by their elders.” Id. at 897 (emphasis added).
Were we to have worded our holding in In re B.A.M.
more precisely, we would have strictly limited the
holding to its facts wherein mutually agreed upon
sexual activity between peers under the age of 13 is
not a crime. ….
Commonwealth v. Bricker, 41 A.3d 872, 879-880 (Pa. Super. 2012)
(citation omitted).
Instantly, a review of the transcripts reveals that D.D., the victim in
this case is a nine-year-old boy who “has mental retardation and he also has
a degree of autism. He’s also bipolar and [has] oppositional defiance.” N.T.,
12/19/13, at 28. D.D. was riding the bus to school when twelve-year-old
Appellant “pulled his own pants down and told [D.D.] to suck it.” Id. at 35.
Appellant told police that he had wanted oral sex and asked D.D. to perform
it on him. Id. at 35, 37. Pursuant to Section 3123(a)(5), a person commits
a felony of the first degree when the person engages in deviate sexual
intercourse with a complainant who “suffers from a mental disability which
renders him or her incapable of consent[.]” 18 Pa.C.S.A. § 3123(a)(5). This
is precisely the conduct distinguished by the Bricker Court and specifically
found to be beyond the scope of our holding in B.A.M. We continue to
decline the invitation to extend B.A.M. Accordingly, we conclude that
Appellant’s assertion that the Commonwealth failed to show the acts were
not consensual, and that Appellant was incapable of criminal liability based
on his age, must fail.
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Appellant also asserts that the finding of the juvenile court “shocks
one’s sense of justice, and was therefore against the weight of the
evidence.” Appellant’s Brief (1586 EDA 2014) at 16. However, Appellant
devotes a mere two paragraphs to this argument without developing his
claim whatsoever. See id. Further, the entire basis of Appellant’s argument
contained in the two paragraphs is a reiteration of his sufficiency argument
relying on B.A.M. Generally, appellate briefs are required to conform to the
Rules of Appellate Procedure. Pa.R.A.P. 2101. Pennsylvania Rule of
Appellate Procedure 2119(a) requires that the argument section of an
appellate brief include “citation of authorities as are deemed pertinent.” Id.
at 2119(a). This Court will not consider an argument where an appellant
fails to cite to any legal authority or otherwise develop the issue.
Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009), cert. denied,
Johnson v. Pennsylvania, 131 S. Ct. 250 (2010); see also, e.g., In re
Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (stating, “[f]ailure
to cite relevant legal authority constitutes waiver of the claim on appeal[]”)
(citation omitted), appeal denied, 69 A.3d 603 (Pa. 2013). Therefore,
Appellant’s failure to develop said issue results in waiver.7 See id.
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7
Even if we were to address Appellant’s claim, we would conclude the
verdict was not against the weight of the evidence. An argument that the
jury’s verdict was against the weight of the evidence concedes that the
evidence was sufficient to sustain the convictions. Commonwealth v.
Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied, Lyons v.
(Footnote Continued Next Page)
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Finally, in his last issue Appellant asserts that the juvenile court “failed
to adequately set forth reasons why [] Appellant’s placement was the least
restrictive alternative available.” Appellant’s Brief (1586 EDA 2014).
Specifically, Appellant asserts that “the record does not demonstrate that
[the juvenile court] weighed and considered any less restrictive forms of
rehabilitation as required by [Pennsylvania] Rule [of Juvenile Court
Procedure] 512D.” Id. at 18.
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(Footnote Continued)
Pennsylvania, 134 S. Ct. 1792 (2014). Our Supreme Court has
admonished that “[a] new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same facts would have
arrived at a different conclusion.” Commonwealth v. Clay, 64 A.3d 1049,
1055 (Pa. 2013) (citation omitted). Instead, “the trial judge is to determine
that notwithstanding all the facts, certain facts are so clearly of greater
weight that to ignore them or to give them equal weight with all the facts is
to deny justice.” Id. (internal quotation marks and citation omitted). “[A]
new trial should be awarded when the jury’s verdict is so contrary to the
evidence as to shock one’s sense of justice ….” Id.
As an appellate court, it “is not [our role] to consider the underlying
question of whether the verdict is against the weight of the evidence.”
Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014) (citation omitted).
An argument that the jury’s verdict was against the weight of the evidence
remains “[o]ne of the least assailable reasons for granting … a new trial ….”
Id. (citation omitted). “Thus, only where the facts and inferences disclose a
palpable abuse of discretion will the denial of a motion for a new trial based
on the weight of the evidence be upset on appeal.” Id. (citation omitted;
emphasis in original).
Instantly, the evidence adduced at trial showed that Appellant, a 12-
year-old, committed conduct in the presence of D.D., a 9-year-old victim
incapable of consent, sufficient to convict him of involuntary deviate sexual
intercourse with a person who suffers from a mental disability, indecent
exposure, and open lewdness. The cumulative testimony of the witnesses at
trial corroborated D.D.’s allegations, and the trial court was free to believe
the testimony of the witnesses. See Clay, supra.
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Rule 512 states the following.
Rule 512. Dispositional Hearing
…
D. Court’s findings. The court shall enter its
findings and conclusions of law into the record and
enter an order pursuant to Rule 515. On the record
in open court, the court shall state:
(1) its disposition;
(2) the reasons for its disposition;
(3) the terms, conditions, and limitations of the
disposition; and
(4) if the juvenile is removed from the home:
(a) the name or type of any agency or
institution that shall provide care, treatment,
supervision, or rehabilitation of the juvenile,
and
(b) its findings and conclusions of law that
formed the basis of its decision consistent with
42 Pa.C.S. §§ 6301 and 6352, including why
the court found that the out-of-home
placement ordered is the least restrictive type
of placement that is consistent with the
protection of the public and best suited to the
juvenile’s treatment, supervision,
rehabilitation, and welfare;
Pa.R.J.C.P. 512(D).
A review of the dispositional hearing reveals the juvenile court
considered all the factors listed in Rule 512(D) and that it found the least
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restrictive option to be sentencing Appellant to DTA.8 At sentencing the
juvenile court made the following findings.
These cases, juvenile cases, in general, are
difficult. Dealing with juveniles that are as young as
[Appellant] is, he’s - - I recognize he’s only 13 years
old, he’s a very young man. And any time the
[juvenile c]ourt is faced with the prospect of taking a
young juvenile, or any juvenile for that matter, out
of the home, that decision is not taken lightly. And I
gave a lot of thought in this case. And I have some
concerns about [Appellant]’s behavior in this
particular incident for a young man. And the fact
that he’s clearly had problems at the Pleasant Valley
School District. According to the social summary
report that I have reviewed, he had a history of 37
disciplinary infractions ranging from disrespectful to
physical confrontations. And that record essentially
culminated with this incident, which again, I
indicated is disturbing. The young victim in this case
was only nine years old, a special needs student by
all accounts. That [Appellant] essentially took
advantage of him in a serious manner. And then as
a result of that, he’s expelled or suspended from
school. He’s enrolled at Pius and apparently the
nature of his expulsion from Pleasant Valley was
made known to Pius at the time. But he enrolled in
Pius and he’s been engaged in some counseling. I
certainly recognize that. It sounds like he’s doing,
academically, well. That things are not the same for
[Appellant], that things are improving for him, and
that’s a very positive sign. But it seems that there
have been some setbacks. You know, the
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8
We note, as discussed at length above, Appellant’s dispositional order
sentencing him to DTA was amended following the Commonwealth’s petition
for re-disposition placing Appellant in the Mathom House juvenile facility
after Appellant was denied admission into DTA. Nevertheless, as Appellant’s
challenge is to the juvenile court’s findings on the record regarding the least
restrictive option being placement outside of the home, we are not precluded
from reviewing Appellant’s issue.
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infractions for making noise in mass and not wearing
his – wearing sneakers with his uniform can certainly
be overlooked. But there’s another troubling
allegation that he was cited for bullying and teasing
or some inappropriate conduct with a female student
that, in and of itself, for a 13 year old probably could
be overlooked, but given his history, and the sexual
history for this adjudication of delinquency in this
particular case, it gives the [juvenile c]ourt some
added concern. But I don’t think there’s any
question that [Appellant] has made progress. And,
quite frankly, I think that he’s got a very positive
future ahead of him. He’s a young man. And I think
things will go well for him in the future. But I think
something more than leaving him in the present
situation without some more intensive type of
therapy or counseling I think the [juvenile c]ourt
would be remiss [to] do that.
And, again, it’s very difficult for me to place
any student, especially a young student like
[Appellant]. The bottom line here is what is the best
thing for him under the circumstances. And I feel,
given my understanding of this program, the
Diversified Treatment Alternative Program, that I feel
that that is the best option for [Appellant].
Therefore, I’m going to adopt the recommendation of
probation in this matter and I am not going to
suspend that placement pending appeal in this
matter.
…
[T]he [juvenile c]ourt finds that to allow [Appellant]
to remain in the home would be contrary to the
child’s welfare and reasonable efforts have been
made to prevent removal of the child from the home.
This disposition is consistent with the protection of
the public and best suited to the treatment,
supervision, rehabilitation and welfare of the child.
…
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J-S70029-14
J-S70030-14
Okay, [Appellant], good luck to you. This is a good
program. I think you’re going to get a benefit out of
it. And I think it’s going to help you. You got a long
way to go, you’re 13, okay. You’ve got a long way
to go, and we just want to make sure things get
better for you and you keep improving.
N.T., 2/10/14, 14-15. The juvenile court thoroughly discussed its reasoning
and conclusion for placing Appellant outside of the home. Accordingly,
Appellant’s final issue fails.
Based on the foregoing, we conclude that Appellant’s issues are either
waived or devoid of merit. Therefore, we affirm the juvenile court’s
February 10, 2014 dispositional order, and the juvenile court’s subsequent
April 23, 2014 order granting the Commonwealth’s petition for re-
disposition.
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/6/2015
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