In the Interest of: G.G., a Minor ( 2019 )

J-S41021-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: G.G., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
Appellant :
:
:
:
:
: No. 414 MDA 2019
Appeal from the Dispositional Order Entered January 23, 2019
In the Court of Common Pleas of Berks County Juvenile Division at
No(s): CP-06-JV-0000473-2018
BEFORE: LAZARUS, J., MURRAY, J., and STRASSBURGER*, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 05, 2019
G.G. (Appellant) appeals from the dispositional order1 entered after the
juvenile court adjudicated Appellant delinquent of six offenses: two counts
each of involuntary deviate sexual intercourse with a child and criminal
solicitation to commit involuntary deviate sexual intercourse; and one count
each of rape of a child and indecent assault. Upon review, we affirm.
The juvenile court related the factual and procedural background as
follows:
This case concerns [Appellant’s] perpetration of certain sex crimes
against [the victim]. We note at the outset that none of the
witnesses testified as to the exact dates these crimes occurred,
but the parties stipulated that they took place between November
1, 2017, and the middle of January 2018. (N.T.p.107). [The
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1 In juvenile proceedings, the final order from which a direct appeal may be
taken is the order of disposition, entered after the juvenile is adjudicated
delinquent. See Commonwealth v. S.F., 912 A.2d 887, 888-89 (Pa. Super.
2006).
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* Retired Senior Judge assigned to the Superior Court.
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victim] was . . . either five (5) or six (6) years old, depending on
when the offenses occurred. [Appellant] was fifteen (15) years
old during this time period.
[The victim] lived . . . with her Mother [and] her Mother’s
boyfriend . . . On weekends [the victim] would stay at her Father’s
house . . . where he lived with his wife and her son, [Appellant].
[The victim] and [Appellant] would play together in [Appellant]’s
. . . bedroom. At one point, [the victim] and [Appellant] engaged
in what [the victim] called “sexing.” They both removed their
pants and [Appellant] coerced [the victim] into performing oral
sex on him by threatening to tell her parents that she was bad.
[The victim] engaged in oral sex with [Appellant] at least three
different times, usually when [Appellant] babysat [the victim] and
there were no adults in the house. On one occasion, at
[Appellant]’s insistence, [the victim] and [Appellant] removed all
of their clothing and [Appellant] had vaginal and anal intercourse
with [the victim].
[Appellant] was friends with three (3) brothers, A.O., J.V., and
E.V. ages 12, 11 and 6 respectively when the following events
occurred. On weekends the boys would visit [Appellant] at his
home. During one of these visits [Appellant] and the brothers
were in [Appellant]’s bedroom playing a game. [The victim]
entered and [Appellant] pulled down her pants and she performed
oral sex on him. [Appellant] then told her to perform oral sex on
A.O. and J.V. which she did. A.O. said that [Appellant] made him
engage in oral sex with [the victim]. J.V. said that [Appellant]
told him if he told anyone what had happened he would “get” him.
After the above incidents took place, [the victim] told her Mother
what had happened. [The victim] later met with a representative
of the Children’s Alliance center where her testimony about these
matters was recorded on a digital video disc which was later
viewed at the adjudication hearing.
On October 2, 2018, the Commonwealth filed a petition alleging
delinquency, charging [Appellant] with two (2) counts of
Involuntary Deviate Sexual Intercourse 18 Pa.C.S.A. §3123(b),
one (1) count each of Rape of a Child 18 Pa.C.S.A. §3121(c) and
Indecent Assault 18 Pa.C.S.A. §3126(a)(7), and six (6) counts of
Criminal Solicitation to Commit Involuntary Deviate Sexual
Intercourse 18 Pa.C.S.A. §902(a). The hearing on these charges
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was held on December 6, 2018. At the conclusion of the hearing
we found [Appellant] involved in two (2) counts of Involuntary
Deviate Sexual Intercourse, Rape of a Child, Indecent Assault, and
two (2) counts of Criminal Solicitation to Commit Involuntary
Deviate Sexual Intercourse and adjudicated him delinquent. The
Court held a dispositional hearing on January 17, 2019, and
ordered [Appellant] to be placed in a residential facility.
[Appellant] filed a timely Post Dispositional Motion [challenging
the weight of the evidence], which we denied. This appeal
followed.
Juvenile Court Opinion, 4/5/19, at 1-3.
Both the juvenile court and Appellant have complied with Pennsylvania
Rule of Appellate Procedure 1925. On appeal, Appellant presents a single
issue:
1. Whether the lower court abused its discretion in denying
Appellant’s post-dispositional motion for a new trial where the
inconsistencies presented at trial were so extensive and
irreconcilable as to render the finding of involvement contrary to
the weight of the evidence.
Appellant’s Brief at 8.
We review Appellant’s weight of the evidence claim mindful of the
following:
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
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province of the fact finder. In re R.D., 44 A.3d 657, 664 (Pa. Super. 2012)
(citations omitted). “This Court applies the same standard for reviewing
weight of the evidence claims in juvenile cases as those involving adults.” In
re J.G., 145 A.3d 1179, 1187 (Pa. Super. 2016) (citation omitted). “An
appellate court’s standard of review when presented with a weight of the
evidence claim is distinct from the standard of review applied by the trial
court[.]” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013). An
allegation that the verdict is against the weight of the evidence is addressed
to the discretion of the trial court; an appellate court reviews the exercise of
discretion, not the underlying question of whether the verdict is against the
weight of the evidence. In re J.G., 145 A.3d at 1187 (citations omitted).
Appellant does not individually challenge the weight of the evidence as
to his adjudication of six separate offenses. Rather, he holistically claims that
the juvenile court’s finding that he “was involved was so contrary to the weight
of the evidence presented as to shock one’s sense of justice.” Appellant’s
Brief at 14. Appellant argues “no testimony was credible, as each story
presented to [the juvenile court] in the Commonwealth’s case in chief
presented irreconcilable differences. Each incident testified to by [the victim]
was contradicted, whether by herself or the other so-called witnesses.” Id.
at 13. Appellant further states that “the case is rife with inconsistencies,”
where “not one person testified consistently on the incident . . .” Id. at 15-
16. Appellant’s argument is meritless.
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The juvenile court recognized the contradictions in some of the
testimony. See generally, Juvenile Court Opinion, 4/5/19, at 5-7. However,
the court also referenced the sometimes “faulty memory of [the] 6 year old
[victim]” and the use of anatomical drawings at the hearing in opining that
“contradiction in her testimony . . . did not compromise [the victim’s]
credibility[.]” Id. at 6. The court explained:
We heard and observed all the witnesses. Although only six years
old, and understandably engaging in childish behavior at times,
[the victim] testified about the essential facts in this case
forthrightly, at times graphically, and always credibly. This Court
has no doubt that what she described actually happened.
Likewise, the testimony of A.O. and J.V., also juveniles, was
straightforward and unshaken on cross-examination. Finally, the
Children’s Alliance’s DVD of [the victim’s] explanation of what
transpired between herself and [Appellant] was compelling,
heartbreaking, and credible. Therefore, the finding of
[Appellant’s] involvement with the above crimes was not against
the weight of the evidence but fully supported by the record.
Juvenile Court Opinion, 4/5/19, at 7.
It is well settled that any conflicts or contradictions in testimony are for
the juvenile court to resolve. See, e.g., In re J.M., 89 A.3d 688, 692 (Pa.
Super. 2014). Accordingly, the juvenile court did not err in rejecting
Appellant’s weight claim.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/5/2019
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