In the Interest of: M.B., Appeal of: M.B. ( 2019 )

J-A05043-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: M.B., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
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APPEAL OF: M.B. :
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: No. 605 WDA 2018
Appeal from the Dispositional Order November 14, 2017
In the Court of Common Pleas of Crawford County Criminal Division at
No(s): CP-20-JV-0000123-2016
BEFORE: GANTMAN, P.J.E., SHOGAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED FEBRUARY 11, 2019
M.B. (Appellant) appeals from the Juvenile Court’s dispositional order
entered after it adjudicated Appellant delinquent of attempted rape,
attempted sexual assault, indecent assault, terroristic threats, indecent
exposure, simple assault, and open lewdness.1 We affirm.
The adjudication hearing occurred on November 1, 2017. H.F. (Victim)
testified to meeting Appellant when she moved into his neighborhood. N.T.,
11/1/17, at 14. She stated that she and Appellant were “just friends.” Id. at
44. On November 6, 2016, the Victim was 15 years old and Appellant was 14
years old. The Victim was riding her bicycle past Appellant’s home during the
early evening when she saw Appellant standing outside. The Victim testified
that she “stopped and wanted to talk to” Appellant. Id. at 17. The Victim
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1 18 Pa.C.S.A. §§ 901/3121(a), 901/3124.1, 3126, 2706(a), 3127(a),
2701(a), and 5901, respectively.
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stated that she was talking to Appellant when he “pulled” her from her bicycle
onto the ground, and “tried choking” her. Id. at 18-20. She explained:
I got him off of me at one point, and then he went back onto me
and he started choking me. And I tried to scream for help, and I
kept on yelling. He covered my mouth, told me to shut up or he
would kill me. . . . I kept on trying to move my head away from
[Appellant’s hand] at first, until [] like the third or fourth time that
he was covering my mouth from me screaming, that I bit him
down on his hand. I know I took a chunk out.
Id. at 21-22. The Victim testified that her throat “hurt” when Appellant
choked her. Id. at 22. She also relayed that Appellant “told me to shut up
or he’ll kill me. Or if I tell anyone, he would kill me.” Id. at 23. The Victim
further stated that after pulling down her pants and his own, Appellant:
was trying to hump me. And I crossed my legs over each other,
and I kept on trying to make sure he couldn’t get it into me or
anything. And he got on top of me, and I kept on making sure
that he couldn’t. And he finished like humping me, and he sat
there and got up, pulled up his – he sat there and started putting
his [penis] away and then like zipping up his pants, buttoning it
and fixing his belt and then he ran off.
Id. at 25.
The Victim clarified that Appellant’s penis touched her skin, “that was
it.” Id. at 26. The Victim then fled home on her bicycle and once she was
inside her home, “started yelling, [Appellant] just raped me and I don’t know
what to do, because I was just like lost.” Id. at 28. The Victim’s family
immediately called the police.
In addition to the Victim, Commonwealth witnesses included the Victim’s
mother, the Intake Supervisor at Crawford County Human Services, a
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Pennsylvania State Police (PSP) scientist (accepted as an expert in the field of
forensics and specializing in serology), another PSP scientist (accepted as an
expert in the field of forensic DNA), PSP Troopers John Michalak and Zakary
Kosko, and PSP Detective Todd Giliberto. See Juvenile Court Opinion,
5/29/18, at 3. Exhibits introduced by the Commonwealth, and admitted
without objection, included police photographs of the Victim taken on the day
of the incident, her pink underwear, buccal swabs from the Victim and
Appellant, and a serology report. Id.
Appellant testified on his own behalf. He described the November 6,
2016 encounter with the Victim:
I stopped to think about what was going on for a minute,
since I do think stuff over thoroughly and slower than most
people, being I’m autistic. And then I proceeded to step back a
couple feet, zip up my pants, and told her this can’t happen. She
needed to go home, and I would be letting my parents know about
it.
N.T., 11/1/17, at 140.
Appellant’s mother and father also testified on his behalf, corroborating
Appellant’s version of events. Also, family cellphone photographs taken the
day and week following the incident were admitted as defense exhibits. See
Juvenile Court Opinion, 5/29/18, at 3. The Juvenile Court accurately
recounted:
Defense counsel, in her opening and closing statements,
contended that the sexual encounter that occurred on November
6, 2016, had been consensual. There was no evidence supporting
that contention. On the contrary, [Appellant] maintained
(unconvincingly) that the Victim had sexually assaulted him, as
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she had done on a previous occasion. According to him, there was
no attempt at sexual intercourse. Notably, he first provided this
version of events only shortly before the hearing, previously
telling his parents nothing had happened. [Appellant] explained
that the cut on his hand was from cutting out a pebble lodged
there when he crashed his bicycle later in the day.
Id. at 5 (citations to notes of testimony omitted).
On this record, the Juvenile Court adjudicated Appellant delinquent of
the aforementioned offenses, noting that it had “listened very carefully to the
evidence” and taken notes. N.T., 11/1/17, at 243. The Juvenile Court stated
that Appellant’s testimony “strains the imagination beyond any possible
credibility,” while, conversely, the court found that the Victim “was very
credible.” Id. at 245. The Juvenile Court deferred disposition to November
14, 2017, when it ordered that Appellant be placed in a secure sex offender
treatment program.
On November 27, 2017, Appellant filed a timely post-dispositional
motion challenging the sufficiency and weight of the evidence.2 The Juvenile
Court scheduled a hearing for February 5, 2018. Appellant’s counsel
requested a continuance and the hearing was rescheduled for April 27, 2018.
However, on March 28, 2018, Appellant’s counsel presented a motion to cancel
the hearing because counsel did “not anticipate the Court reversing its finding
of delinquency.” Counsel expressly requested that “the Court enter an
appropriate Order so the juvenile may proceed with his Direct Appeal.” The
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2 The motion was timely because the Clerk of Courts was closed from
November 23-26, 2017 for the Thanksgiving holiday and weekend. See
Juvenile Court Opinion, 5/29/18, at 2 n.2.
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Juvenile Court granted the motion, with the added handwritten notation that
“the Juvenile may file a timely Notice of Appeal . . .” Order, 3/29/18.
Appellant filed this timely appeal, after which the Juvenile Court and Appellant
complied with Pennsylvania Rule of Appellate Procedure 1925. Appellant
presents two issues for our review:
1.) WHETHER THERE WAS SUFFICIENT EVIDENCE PRESENTED
TO PROVE BEYOND A REASONABLE DOUBT THAT
APPELLANT COMMITTED THE CRIMES OF ATTEMPTED RAPE,
ATTEMPTED SEXUAL ASSAULT, INDECENT ASSAULT,
TERRORISTIC THREATS, INDECENT EXPOSURE, SIMPLE
ASSAULT, AND OPEN LEWDNESS AS REQUIRED TO
SUSTAIN THE ALLEGATION OF DELINQUENCY?
2.) WAS THE COURT’S FINDING APPELLANT DELINQUENT FOR
THE CRIMES OF ATTEMPTED RAPE, ATTEMPTED SEXUAL
ASSAULT, INDECENT ASSAULT, TERRORISTIC THREATS,
INDECENT EXPOSURE, SIMPLE ASSAULT AND OPEN
LEWDNESS AGAINST THE WEIGHT OF THE EVIDENCE?
Appellant’s Brief at 6.
Sufficiency of the Evidence
We note at the outset:
When examining a challenge to the sufficiency of the evidence
supporting an adjudication of delinquency, this Court employs a
well-settled standard of review:
When a juvenile is charged with an act that would
constitute a crime if committed by an adult, the
Commonwealth must establish the elements of the
crime by proof beyond a reasonable doubt. When
considering a challenge to the sufficiency of the
evidence following an adjudication of delinquency, we
must review the entire record and view the evidence
in the light most favorable to the Commonwealth. In
determining whether the Commonwealth presented
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sufficient evidence to meet its burden of proof, the
test to be applied is whether, viewing the evidence in
the light most favorable to the Commonwealth and
drawing all reasonable inferences therefrom, there is
sufficient evidence to find every element of the crime
charged. The Commonwealth may sustain its burden
of proving every element of the crime beyond a
reasonable doubt by wholly circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not be absolutely incompatible
with a defendant’s innocence. Questions of doubt are
for the hearing judge, unless the evidence is so weak
that, as a matter of law, no probability of fact can be
drawn from the combined circumstances established
by the Commonwealth.
In re V.C., 66 A.3d 341, 348–349 (Pa.Super.2013) (quoting In
re A.V., 48 A.3d 1251, 1252–1253 (Pa.Super.2012)). The finder
of fact is free to believe some, all, or none of the evidence
presented. Commonwealth v. Gainer, 7 A.3d 291, 292
(Pa.Super.2010).
In Interest of J.G., 145 A.3d 1179, 1188 (Pa. Super. 2016).
Instantly, Appellant recognizes that “it is necessary to examine the
elements of each of the crimes of which Appellant was adjudicated.”
Appellant’s Brief at 17. With regard to attempted rape and sexual assault:
A person commits an attempt when, with intent to commit a
specific crime, he does any act which constitutes a substantial
step toward the commission of that crime.
18 Pa.C.S.A. § 901 (emphasis added).
Appellant argues that “the Commonwealth did not establish that
Appellant committed an act which constitutes a ‘substantial step toward the
commission’ of Rape or Sexual Assault.” Appellant’s Brief at 18. He maintains
that because “the record in the instant case is devoid of any evidence of
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penetration . . . however slight” the sexual intercourse element for both the
charges of Attempted Rape and Attempted Sexual Intercourse have not been
met.” Id. at 18-19. This argument does not make sense. First, Appellant
was convicted of attempted rape and attempted sexual assault, not
“attempted sexual intercourse.” See id. at 19. Rape occurs when “the person
engages in sexual intercourse with a complainant . . . [b]y forcible
compulsion.” 18 Pa.C.S.A. § 3121(a)(1). Sexual assault occurs when the
person “engages in sexual intercourse or deviate sexual intercourse with a
complainant without the complainant’s consent.” 18 Pa.C.S.A. § 3124.1. As
noted above, the Victim testified that Appellant pulled her off of her bicycle,
forced her onto the ground, pulled down the Victim’s pants as well as his own,
“humped” the Victim and touched his penis to her skin. Thus, the record
supports a finding that Appellant took a “substantial step” – in this case
multiple steps – to commit rape and sexual assault.
Appellant also contends that with regard to indecent assault, “there is
no evidence of record that Appellant touched the sexual or other intimate part”
of the Victim. Appellant’s Brief at 19. “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 . . . for the purpose
of arousing sexual desire in the person or the complainant and: (1) the person
does so without the complainant’s consent; (2) the person does so by forcible
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compulsion.” 18 Pa.C.S.A. § 3126. In addition to the evidence cited above,
the Commonwealth presented the testimony of Allison Miller. The Juvenile
Court accepted Ms. Miller, without objection from Appellant, as an expert in
DNA forensic science. N.T., 11/1/17, at 87. Ms. Miller testified to testing the
underpants worn by the Victim at the time of the incident, and matching
Appellant’s DNA to the sperm recovered from “the crotch panel of the
underpants.” Id. at 95; Commonwealth Exhibit 8. The evidence was thus
sufficient to support a finding that Appellant “caused the complainant to have
indecent contact with the person or intentionally cause[d] the complainant to
come into contact with seminal fluid.” Appellant’s argument with regard to
indecent assault is meritless.
Next, Appellant assails the sufficiency of the evidence supporting his
indecent exposure adjudication. “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.” 18
Pa.C.S.A. § 3127. Appellant’s entire argument is that the Commonwealth “did
not present evidence which established beyond a reasonable doubt that
Appellant knew that the conduct alleged by [the Victim] was likely to offend,
affront, or alarm [the Victim].” Appellant’s Brief at 20. Because it is simply
conclusory and undeveloped, Appellant’s argument is waived. See
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Commonwealth v. McMullen, 745 A.2d 683 (Pa. Super. 2000) (holding that
blanket assertions of error are insufficient to permit meaningful review).
Appellant also claims that the Commonwealth failed to prove that he
committed simple assault, suggesting that despite the Victim’s mother and
the State Trooper testifying to observing scratches on the Victim’s body and
red marks on her neck, the Victim stated that being choked “hurt,
but it didn’t hurt like a lot,” N.T., 11/1/17, at 2, such that the “testimony does
not meet the requirement that a bodily injury was caused.” Appellant’s Brief
at 20. The section of the simple assault statute under which Appellant was
adjudicated reads:
a person is guilty of assault if he:
(1) attempts to cause or intentionally, knowingly or recklessly
causes bodily injury to another;
18 Pa.C.S.A. § 2701 (emphasis added). In addition to discounting that
choking, scratching and red marks may constitute bodily injury, Appellant
disregards the attempt component of the statute. Thus, the evidence of
Appellant’s actions, as credited by the Juvenile Court, support his adjudication
of simple assault.
With respect to his adjudication for open lewdness, defined as “any lewd
act which [a person] knows is likely to be observed by others who would be
affronted or alarmed,” 18 Pa.C.S.A. § 5901, Appellant again makes an
undeveloped, one-sentence, conclusory argument that “the Commonwealth
did not present evidence beyond a reasonable doubt Appellant knew that the
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acts alleged by [the Victim] were likely to affront or alarm her.” Appellant’s
Brief at 21. Therefore, the claim is waived. McMullen, supra.
Finally, Appellant “concedes” that the Commonwealth established the
elements of terroristic threats of which he was adjudicated. See Appellant’s
Brief at 21. Accordingly, in sum, we find no merit to Appellant’s sufficiency
claims.
Weight of the Evidence
In his second issue and four total pages of argument, Appellant does
not individually challenge the weight of the evidence as to his adjudication of
separate offenses; rather, Appellant states holistically that the Juvenile
Court’s delinquency finding “for the crimes of Attempted Rape, Attempted
Sexual Assault, Indecent Assault, Terroristic Threats, Indecent Exposure,
Simple Assault, and Open Lewdness was against the weight of the evidence
presented.” Id. Appellant does not cite any case law, and in the body of his
weight argument simply recites the hearing testimony and maintains that “the
lower court failed to give appropriate weight to the evidence presented by
Appellant.” Id.
We note that although Appellant raised the weight issue in his post-
dispositional motion, he later withdrew that motion, and the Juvenile Court
never ruled on the weight claim. See Pa.R.J.C.P. 620 (providing for post-
dispositional motions in juvenile delinquency matters). Thereafter, Appellant
filed his appeal and his Rule 1925(b) concise statement, but did not include a
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weight claim in the statement. We thus find that Appellant’s weight claim is
waived. See Pa.R.A.P. 1925(b)(4)(vii) (issues not raised in the concise
statement are waived); compare with Interest of J.G., 145 A.3d 1179 (Pa.
Super. 2016) (declining to waive weight challenge where juvenile did not file
post-dispositional motion but presented weight of evidence claim for first time
in Rule 1925(b) statement).
Although Appellant failed to preserve his weight claim, we nonetheless
recognize:
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. 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 A.G.C., 142 A.3d 102, 109 (Pa. Super. 2016) (citations omitted). It is
well-settled that the hearing judge sits as the finder of fact, and the weight to
be assigned the testimony of the witnesses is within the exclusive province of
the fact finder. In re R.D., 44 A.3d 657, 664 (Pa. Super. 2012) (citation
omitted). Instantly, the Juvenile Court expressly and repeatedly found the
Victim’s testimony “to be very credible,” see, e.g., N.T., 11/1/17, at 245, and
our review of the record reveals nothing that would shock one’s sense of
justice.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/11/2019
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