In the Interest of: N.A.P., a Minor ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: N.A.P., : IN THE SUPERIOR COURT OF
A MINOR : PENNSYLVANIA
:
APPEAL OF: N.A.P. : No. 1525 MDA 2017
Appeal from the Dispositional Order, September 1, 2017,
in the Court of Common Pleas of Franklin County
Juvenile Division at No. CP-28-JV-0000038-2017
BEFORE: PANELLA, J., MURRAY, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED AUGUST 09, 2018
N.A.P. (“juvenile”) appeals the September 1, 2017 juvenile dispositional
order entered in the Court of Common Pleas of Franklin County, adjudicating
him as a delinquent and in need of treatment, supervision, and rehabilitation
after the juvenile court adjudged him delinquent of rape and strangulation.1
We vacate the juvenile dispositional order and remand with instructions.
The juvenile court set forth the following:
Pennsylvania State Police Trooper Cortney Patillo
(“Trooper Patillo”) submitted to the Franklin County
Juvenile Probation Department (“Juvenile Probation”)
a Written Allegation against [the juvenile] describing
offenses in the nature of rape and strangulation. The
Allegation described acts committed on or about
January 17, 2017, at the juvenile’s home against his
then 15[-]year-old girlfriend, N.M. In light of the
1 18 Pa.C.S.A. §§ 3121(a)(1) and 2718(a)(1), respectively.
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allegation, Juvenile Probation filed a Petition Alleging
Delinquency on February 21, 2017.[2]
A detention hearing was held on February [203], 2017,
before the Juvenile Court Master (“Master”). The
Master found probable cause for rape and
strangulation and determined that it was contrary to
the juvenile’s welfare to remain in his mother’s home.
The juvenile was ordered held in secure detention.
Upon demand of the juvenile, a second detention
hearing was held before this Court on March 3, 2017.
The juvenile was ordered to remain in secure
detention.
After several continuance requests by both the
juvenile and the Commonwealth, a finding of fact
hearing was held on June 23, 2017. After hearing the
testimony of N.M., the juvenile, and seven other
witnesses, this Court found the juvenile committed
the offenses of rape and strangulation, beyond a
reasonable doubt.
An adjudication/disposition hearing was ultimately
held on September 1, 2017. Based on the evidence
presented the juvenile was found in need of
treatment, supervision, and rehabilitation. The
juvenile was adjudicated delinquent, placed on
probation supervision until further Order of Court, and
placed at Adelphi Village, Loyalhanna Home. The
Court found the placement to be the least restrictive
placement consistent with the protection of the public
and best suited to the juvenile’s treatment,
supervision, rehabilitation, and welfare. The
disposition ensured balanced attention to the
protection of the community, the imposition of
accountability for the offenses committed, and the
development of competencies to enable the juvenile
2 The petition alleging delinquency is dated February 17, 2017, but was
docketed on February 21, 2017.
3 In its Pa.R.A.P. 1925(a) opinion, the juvenile court states that the detention
hearing was held on February 16, 2017. The record, however, reflects that
the detention hearing was held on February 20, 2017.
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to become a responsible and productive member of
the community.
The juvenile filed a Notice of Appeal on September 29,
2017. The Court directed the juvenile to file a concise
statement of the [errors] complained of on appeal
[pursuant to Pa.R.A.P. 1925(b)]. The juvenile’s
Pa.R.A.P. 1925(b) Statement was timely filed
October 11, 2017.
Juvenile court opinion, 11/9/17 at 1-3 (footnotes omitted).
In his Rule 1925(b) statement, the juvenile raised a weight of the
evidence challenge.4 Thereafter, on October 17, 2017, the juvenile filed a
“motion for leave to file post-disposition motion nunc pro tunc.” (Docket
# 30.) The juvenile court denied the motion “without prejudice to the
[j]uvenile to file if the [j]uvenile withdraws his appeal” to this court because
the juvenile court recognized that the juvenile’s filing of a notice of appeal
divested it of jurisdiction. (Order of court, 11/7/17.) In its Rule 1925(a)
opinion, the juvenile court requests that this matter be remanded so that it
may properly address the juvenile’s weight challenge.
In order for a weight of the evidence claim to be preserved for appellate
review, the claim must be presented in some manner to the juvenile court for
adjudication in the first instance. In re J.B., 106 A.3d 76, 95 (Pa. 2014).
When a weight of the evidence claim is raised for the first time in a
4 The juvenile framed this challenge as “[w]hether the weight of the evidence
at the adjudication hearing was so greatly against the Commonwealth and in
favor of [the juvenile] as to warrant a new adjudication hearing.” (Juvenile’s
Rule 1925(b) statement, 10/11/17 at ¶ 1.)
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Rule 1925(b) statement, the failure to present the claim to the juvenile court
in a post-dispositional motion does not result in waiver. Id. at 98. That is
because post-dispositional motions are optional in juvenile matters. See
Pa.R.J.C.P. 620(A)(2) (“Issues raised before or during the adjudicatory
hearing shall be deemed preserved for appeal whether or not the party elects
to file a post-dispositional motion on those issues.”). When a juvenile raises
a weight claim for the first time in a Rule 1925(b) statement, the juvenile
court has no jurisdiction to act on the claim and, consequently, cannot fulfill
“a necessary prerequisite for appellate review.” Id. at 98.
Like in In re J.B., the juvenile first raised his weight of the evidence
claim in his Rule 1925(b) statement after filing a notice of appeal. In re J.B.
determined that where the issue is preserved in the juvenile’s Rule 1925(b)
statement, the matter must be remanded to the juvenile court to provide the
juvenile with an opportunity to file a post-dispositional motion nunc pro tunc.
Id. at 97 (noting “fairness dictates that the instant case be remanded to the
[juvenile] court and [the defendant be] permitted to file a motion for a new
trial nunc pro tunc challenging the weight of the evidence”), quoting
Commonwealth v. Widmer, 689 A.2d 211, 213 (Pa. 1997) (Cappy, J.,
concurring) (some brackets in original). Accordingly, we vacate the juvenile
dispositional order and remand to the juvenile court to allow the juvenile to
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file a post-dispositional motion nunc pro tunc challenging the weight of the
evidence.5
Juvenile dispositional order vacated. Case remanded for proceedings
consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2018
5We note that on May 23, 2018, the Supreme Court of Pennsylvania adopted
a new Rule of Juvenile Court Procedure 415 and amended Rule of Juvenile
Court Procedure 620 to provide a procedural mechanism for weight of the
evidence claims to be raised before the juvenile court. The amendments will
be effective October 1, 2018.
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