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

J-S60005-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.N., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: N.N., A MINOR
No. 1938 EDA 2014
Appeal from the Dispositional Order June 30, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-JV-0001969-2013
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 20, 2015
Appellant, N.N., a juvenile,1 appeals from the dispositional order
entered on June 30, 2014, after the juvenile court adjudicated him
delinquent for committing indecent assault.2 N.N. contends that the
evidence was insufficient to support his adjudication of delinquency. After
careful review, we affirm.
The facts which led to N.N.’s adjudication were summarized by the
juvenile court as follows:
On May 13, 2013 at approximately 9:50[a.m.], Dawn
Marie Geiger was teaching her classroom at Beaver Middle
School, located at 5925 Malvern Avenue. Ms. Geiger asked the
students to sit in close proximity, but requested for them not to
sit behind her desk. N.N., then a thirteen-year-old student,
refused and sat behind [Ms.] Geiger. N.N. had been a full-time
student in Ms. Geiger’s class since September 7, 2012. N.N.
reached through an opening in the back of Ms. Geiger’s chair and
grabbed Ms. Geiger’s buttocks. Ms. Geiger was facing the front
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1
N.N. was born in March of 2000.
2
18 Pa.C.S. § 3126(a)(1).
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of the room, when she felt N.N.’s entire hand grab her buttocks.
[Ms.] Geiger described a grabbing motion with her left hand
extended palm up. The grab was not hard, but Ms. Geiger could
feel the grab for two seconds. The grab did not leave any marks
or bruises, and did not require any medical assistance.
After the grab, Ms. Geiger stood up, turned around, and
said to N.N. “Are you serious?” N.N. looked at Ms. Geiger and
laughed. N.N. was the only student directly behind Ms. Geiger.
There was another student behind her to the left, but said
student was not within reaching distance. Ms. Geiger walked
away, because as she was turned around facing N.N., another
student hit her in the back of the head. Ms. Geiger walked to
the board to compose herself. Two other students walked over
and summoned assistance from another school official to begin
the disciplinary process. The co-worker summoned another
school official and the school police officer to prepare a report.
Juvenile Court Opinion (“JCO”), 1/5/15, at 2 (unpaginated).
The juvenile court further summarized the relevant procedural history
of this case as follows:
On May 20, 2013, Philadelphia police arrested [], N.N., and
charged him with Simple Assault (18 Pa.C.S. § 2701 § A-M2),
Indecent Assault (18 Pa.C.S. § 3126 § A1-M2), and Harassment-
Subjecting Others to Physical Contact (18 Pa.C.S. § 2709 § A1-
S).
On August 13, 2013, after an adjudicatory hearing, this
court issued a guilty verdict on the charge of Indecent Assault-
M2, dismissed the remaining charges, and deferred adjudicating
[N.N.] delinquent. On June 30, 2014, the Honorable Walter
Olszewski adjudged N.N. delinquent. On July 9, 2014, N.N. filed
Notice of Appeal to the Superior Court of Pennsylvania. On July
31, 2014, Judge Olszewski committed N.N. to a Residential
Facility – Mid-Atlantic Pennsylvania Child Case in Luzerne Sex
Offenders/Fire Setters Program. On September 8, 2014, Judge
Olszewski filed an Opinion in this matter. On October 14, 2014,
the Superior Court remanded the matter to this court for filing of
a Statement of Errors. On October 27, 2014, N.N. filed a
Statement of Errors Complained of On Appeal.
JCO at 1 (unpaginated).
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Herein, N.N. presents the following sole issue for our review: “Was
not the evidence insufficient as a matter of law to prove indecent assault
where [N.N.], a thirteen year-old boy, grabbed his teacher’s bottom for two
seconds, in full view of his friends and classmates and then laughed when
confronted by his teacher?” N.N.’s Brief at 4.
Our standard of review in a sufficiency of the evidence challenge is
well-settled:
When a challenge to the sufficiency of the evidence is made, our
task is to determine whether the evidence and all reasonable
inferences drawn therefrom, when viewed in the light most
favorable to the Commonwealth as the verdict winner, were
sufficient to enable the fact-finder to find every element of the
crime charged beyond a reasonable doubt. In applying the
above test, we may not weigh the evidence and substitute our
judgment for the fact-finder. Moreover, we must defer to the
credibility determinations of the [juvenile] court, as these are
within the sole province of the finder of fact. The trier of fact,
while passing upon the credibility of witnesses, is free to believe
all, part, or none of the evidence.
In re J.M., 89 A.3d 688, 691 (Pa. Super. 2014) (citation omitted).
Specifically, Appellant challenges the sufficiency of the evidence to
support his adjudication for indecent assault under 18 Pa.C.S. § 3126, which
provides, in relevant part, as follows:
(a) Offense defined.--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:
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(1) The person does so without the complainant’s
consent.
18 Pa.C.S. § 3126(a)(1). “Indecent Contact” is defined by section 3101 of
the Crimes Code as: “Any touching of the sexual or other intimate parts of
the person for the purpose of arousing or gratifying sexual desire in either
person.” 18 Pa.C.S. § 3101. N.N. acknowledges that the buttocks has been
recognized as an “intimate part.” N.N.’s Brief at 9, n.1.
N.N. concedes that his action was worthy of punishment; however, he
contends that the evidence was insufficient to support an adjudication for
indecent assault where there was no evidence that the act was done “for the
purpose of arousing or gratifying sexual desire.” N.N.’s Brief at 7. N.N.
suggests that he rather “made an immature and impulsive decision to grab
his teacher for a laugh.” Id.
We note the well-reasoned explanation provided by the juvenile court
in support of its finding of indecent assault:
This court has no doubt that N.N. was the person that grabbed
Ms. Geiger’s buttocks. N.N. was the only student within arm’s
reach of Ms. Geiger. In addition, N.N. looked at Ms. Geiger and
laughed, when confronted by Ms. Geiger. This court believes
that N.N.’s conduct demonstrated his guilt. Clearly, Ms. Geiger
did not consent to said touch.
This court also has no doubt that N.N. did so for the purpose of
sexual gratification. The touch was to Ms. Geiger’s sexual or
intimate body part. N.N. was a thirteen-year-old male who
touched the body of a twenty-six year-old female. This court
believes that N.N. purposely situated himself behind Ms. Geiger,
despite having been instructed not to do so, with the intent of
touching her. Ms. Geiger felt N.N.’s entire hand grab her
buttocks for two seconds. This touching is more significant than
a pinch or a slap to the buttocks, which may have been more
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consistent with a prank or simple harassment. If the touch had
been to any other part of Ms. Geiger’s body, the argument that
N.N. was pulling a prank would have been more persuasive.
JCO at 3 (unpaginated). As we noted above, the juvenile court was free to
believe all, part, or none of the evidence, and we must defer to the court’s
credibility determinations. In re J.M., 89 A.3d at 691.
In further support of the juvenile court’s finding that N.N. acted for the
purpose of sexual gratification, the record indicates that N.N. has been
receiving services since 2006, specifically for inappropriate sexual behavior.3
N.T. Delinquency Hearing, 8/13/14, at 21. Additionally, N.N. has been
receiving multiple other services, including family therapy, as well as both
learning support and emotional support at school. Id. at 20-21.
Based on our review of the facts in the light most favorable to the
Commonwealth as the verdict winner, we conclude there was sufficient
evidence to support the juvenile court’s finding that N.N. committed indecent
assault. Therefore, we uphold the order adjudicating N.N. delinquent.
Order affirmed.
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3
We note that N.N.’s counsel did not object to the court’s consideration of
N.N.’s prior history of inappropriate sexual behavior at the delinquency
hearing and does not raise any issues in regard to the same on appeal.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/20/2015
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