In the Int. of: R.J.R., Appeal of: R.J.R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INT. OF: R.J.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
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APPEAL OF: R.J.R., A MINOR :
:
:
:
:
: No. 1546 MDA 2020
Appeal from the Dispositional Order Entered November 16, 2020
In the Court of Common Pleas of Berks County Juvenile Division at
No(s): CP-06-JV-0000588-2019
BEFORE: NICHOLS, J., KING, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 27, 2021
R.J.R., a minor, appeals from the Dispositional Order entered following
her adjudication of delinquency for aggravated indecent assault and indecent
assault.1 We affirm.
In December 2018, the victim (a female born in June 2012) stayed at
the home of R.J.R.’s mother, T.M.-A., while the victim’s mother attended a job
interview. The victim used the bathroom, which was located downstairs, near
R.J.R.’s bedroom. R.J.R., who was 12 years old at the time, knocked on the
bathroom door, and entered while the victim was sitting on the toilet. R.J.R.
then digitally penetrated the victim’s vagina.
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1 18 Pa.C.S.A. §§ 3125(a)(1), 3126(a)(1).
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Several weeks later, the victim told her mother about the assault. The
victim’s mother contacted police. The victim subsequently underwent a
forensic interview with the Children’s Alliance Center.
On October 28, 2019, the Commonwealth filed a Delinquency Petition,
charging R.J.R. with the delinquent acts of involuntary deviate sexual
intercourse (“IDSI”),2 aggravated indecent assault, and indecent assault.
On January 6, 2020, the Commonwealth filed a Notice of its intention to
present evidence pursuant to the “tender years” exception to the rule against
hearsay.3 The Commonwealth subsequently filed a Motion in limine seeking
to introduce at trial the DVD recording of the victim’s forensic interview under
the “tender years” exception. On February 10, 2020, the juvenile court
conducted a hearing, during which the DVD recording of the victim’s forensic
interview was presented. The juvenile court granted the Commonwealth’s
Motion in limine.
On July 20, 2020, the juvenile court conducted an adjudicatory hearing.
At the close of the adjudicatory hearing, the juvenile court found sufficient
evidence to establish that R.J.R. had committed the delinquent offenses of
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2 18 Pa.C.S.A. § 3123(a)(1).
3 “The tender years exception allows for the admission of a child’s out-of-court
statement because of the fragile nature of young victims of sexual abuse.”
Commonwealth v. Lukowich, 875 A.2d 1169, 1172 (Pa. Super. 2005); see
also 42 Pa.C.S.A. § 5985.1 (permitting admission of a child’s out-of-court
statement, where the child is less than 12 years old, the statement described
an enumerated offense, and the statement possessed indicia of reliability).
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IDSI, aggravated indecent assault, and indecent assault. The juvenile court
deferred disposition, but placed R.J.R. on temporary supervision, and ordered
R.J.R. to cooperate with a sexuality evaluation and a psychological/psychiatric
evaluation. By an Order entered on July 21, 2020, the trial court dismissed
the IDSI charge.4
On November 16, 2020, the juvenile court adjudicated R.J.R. delinquent
of the offenses of aggravated indecent assault and indecent assault. The
juvenile court entered a Dispositional Order placing R.J.R. on probation for an
indeterminate period of time, and directing R.J.R. to “pay restitution in the
amount of $1 or an amount as agreed upon later or as [o]rdered by the [c]ourt
for the benefit of [the victim].” Dispositional Order, 11/16/20, at 1. The
juvenile court also ordered that R.J.R. shall not 1) view or possess
pornography, 2) be permitted on the Internet or access an Internet device
without adult supervision, or 3) be permitted in the presence of any person
two or more years younger without adult supervision.
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4 In its Opinion, the juvenile court stated that it “granted the joint request [for
dismissal]—not because of any perceived flaw in process or lack of evidence—
but rather because [it] agreed that a dismissal of this charge would help to
preserve community safeguards while also serving the treatment and
rehabilitative needs of the juvenile.” Juvenile Court Opinion, 1/19/21, at 1
n.4.
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On December 7, 2020, R.J.R. filed a Post-Dispositional Motion
challenging the weight of the evidence.5 The juvenile court denied the Post-
Dispositional Motion. R.J.R. filed a timely Notice of Appeal and a Pa.R.A.P.
1925(b) Concise Statement of errors complained of on appeal.
R.J.R. now raises the following issue for review: “Was the finding of
involvement and subsequent for [sic] aggravated indecent assault without
consent and indecent assault without consent in error and against the weight
of the evidence?” Brief for Appellant at 8 (unnumbered).
R.J.R. argues that her adjudication of delinquency was against the
weight of the evidence. Id. at 15 (unnumbered). R.J.R. claims that the
victim’s testimony was incredible, because it was “riddled with contradictory
testimony and prior inconsistent statements….” Id. According to R.J.R., the
victim’s testimony at trial contradicted statements she previously had made
to her mother, and during the forensic interview. Id. at 15-17 (unnumbered).
R.J.R. points out that the victim’s testimony contradicted the testimony of
T.M.-A. Id. at 17 (unnumbered). R.J.R. also challenges the victim’s
truthfulness, arguing that
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5 We note that the Post-Dispositional Motion was entered on the docket on
December 21, 2020. However, the Motion bears two timestamps by the clerk
of courts—one for December 7, 2020, and another for December 21, 2020.
Additionally, there is a note on the first page of the Motion that reads, “Judge
already held the hearing. Order is in file & docketed.” Further, although no
petition for permission to file the Post-Dispositional Motion nunc pro tunc
appears in the docket, the parties and the juvenile court agree that R.J.R.
requested, and was granted, permission to file the Motion, nunc pro tunc.
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[the victim] did not tell T.M.-A., someone she calls Grandma,
about the incident. She did not tell her mother about the incident
when she came to pick her up. She never acted differently after
that incident or in distress. [The victim] waited six (6) weeks
before telling her mother. She never gave any reason why she
waited so long to tell her [mother].
Id. at 18 (unnumbered).
In reviewing a weight of the evidence challenge,
[w]e may only reverse the juvenile court’s adjudication of
delinquency if it is so contrary to the evidence as to shock one’s
sense of justice. Moreover, where the court has ruled on the
weight claim below, an appellate court’s role is not to consider the
underlying question of whether the verdict is against the weight
of the evidence. Rather, appellate review is limited to whether
the juvenile court palpably abused its discretion in ruling on the
weight claim. Hence, a juvenile court’s denial of a weight claim is
the last assailable of its rulings. Conflicts in the evidence and
contradictions in the testimony of any witnesses are for the fact
finder to resolve[.]
In re J.M., 89 A.3d 688, 692 (Pa. Super. 2014) (citation, some brackets, and
paragraph break omitted).
Here, R.J.R. simply asks this Court to reweigh the evidence and reassess
the juvenile court’s credibility determinations, tasks which we may not
undertake. See id. The juvenile court reviewed the testimony presented at
the adjudicatory hearing, as well as the DVD of the victim’s forensic interview,
and had the opportunity to consider the alleged inconsistencies. See Juvenile
Court Opinion, 1/19/21, at 5-9. The juvenile court specifically credited the
victim’s testimony,
acknowledg[ing] that slight inconsistencies are understandable
and can be expected when examining the veracity of a young
child/victim. However, it is worth noting that the testimony of
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[the victim] was highly consistent in the fundamental facts that
led [the juvenile c]ourt to the undeniable conclusion that she was
the victim of the [delinquent] acts that were charged against
R.[J.]R.
Juvenile Court Opinion, 1/19/21, at 8-9. From our review of the record, we
cannot conclude that the adjudication of delinquency is so contrary to the
evidence as to shock one’s sense of justice. In re J.M., supra. Accordingly,
the juvenile court did not abuse its discretion in denying R.J.R.’s weight of the
evidence claim.
Dispositional Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 08/27/2021
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