In the matter of: M.A. Appeal of: M.A.

J-A15013-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE MATTER OF: M.A., A JUVENILE IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: M.A., A JUVENILE
No. 1450 EDA 2013
Appeal from the Dispositional Order May 3, 2013
In the Court of Common Pleas of Montgomery County
Juvenile Division at No(s): CP-46-JV-0000570-2012
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY PANELLA, J.: FILED JULY 29, 2014
Appellant, M.A., a juvenile, appeals from the dispositional order
entered May 3, 2013, after the juvenile court adjudicated him delinquent for
committing harassment1 and ethnic intimidation.2 We affirm.
In
in the 9th grade at Perkiomen Valley High School. On March 15, 2013,
Appellant came into health class with three swastikas drawn on his left hand
and sat down next to the victim, who is Jewish. Thereafter, the victim left to
go to the bathroom. When the victim returned, he observed that someone
had drawn swastikas on every page of his health class packet. When
confronted by school officials, Appellant admitted that he drew the swastikas
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1
18 Pa.C.S.A. § 2709(a)(4).
2
18 Pa.C.S.A. § 2710.
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aware that the swastika was the symbol used by Adolf Hitler and that it was
used during a period in which millions of Jewish people were killed, but that
he had forgotten the victim was Jewish. Appellant received a 5-day in-
school suspension because of the incident. On the first day of the in-school
suspension, school officials called the state police because students began to
harass the victim.
On March 27, 2013, Appellant was charged with ethnic intimidation,
criminal mischief,3 and two counts of harassment. On March 29, 2013, a
detention hearing was conducted, after which the juvenile court judge
determined that Appellant was a danger to the community and ordered him
detained pending the adjudication hearing. On April 12, 2013, an
adjudication hearing was conducted, after which the juvenile court
adjudicated Appellant delinquent on the charges of harassment and ethnic
intimidation. This timely appeal followed.
On appeal, Appellant raises the following issues for our review:
announcing in open court that she was Jewish and proceeded to
find the juvenile
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3
18 Pa.C.S.A. § 3304.
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Did the juvenile court err when it denied the juvenile the
adjudication and sanctions for lying to challenge his credibility?
delinquent with respect to the offences of ethnic intimidation and
harassment supported by legally sufficient evidence of record?
Appellant first claims that the juvenile court judge violated his due
process rights when she announced in open court that she was Jewish and
proceeded to detain Appellant prior to his adjudication hearing. 4 Appellant
f bias towards him
Preliminarily, we note that Appellant did not raise an objection to the
ther at the time they were made during the
Status filed April 2, 2013. Rather, he raises this claim for the first time on
appeal. Pennsylvania Rule of Appellate Procedure 302(a) provides that
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4
repeatedly challenges his detention, he assures this Court in a footnote that
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detention decis
n.2. We therefore limit our discussion of this issue to that of the juvenile
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Coulter v. Ramsden, --- A.3d ---, ---, 2014 WL 2787216 at *8 (Pa. Super.,
filed June 20, 2014) (citation omitted). As Appellant failed to raise his claim
of alleged juvenile court bias and deprivation of due process rights in the
court below, we are constrained to conclude that this issue is waived.
Even if we were to address this issue, however, it would not merit
or prejudice:
So, at the end of the day, when all the facts come out from both
sides
You should only know, really know about the Holocaust and to
drawing it and bringing it to bear with respect to someone who
has suffered in their heritage.
There were
millions of people that were not Jewish that were devastated by
the Holocaust, murdered, slaughtered, and affected and
impacted by the Holocaust.
. Not at all.
N.T., Detention Hearing, 3/29/13 at 18-19 (emphasis added). Clearly, the
juvenile court judge took great pains to make it clear that her heritage was
not a factor in detaining Appellant. There is simply no evidentiary support
s issue is wholly without merit.
Appellant next argues that the juvenile court erred in granting the
disciplinary record for impeachment purposes pursuant to Pa.R.E. 608(b)(1).
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Id.
court and will be reversed only upon a showing that the trial court clearly
In re F.P., 878 A.2d 91, 93 (Pa. Super. 2005)
(citation omitted). Pennsylvania Rule of Evidence 608(b)(1) provides that
supported by cross-examination or extrinsic evidence concerning specific
(relating to evidence of conviction of crime). Pa.R.E. 608(b)(1).
Appellant argues that while the high school disciplinary report
constitutes
608(b)(1), the juvenile court should have admitted the report under Rule
any witness, evidence that the witness has been convicted of a crime,
whether by verdict or by plea of guilty or nolo contendere, must be admitted
may be used to impeach the credibility of a witness if conviction of the
609(d).
In essence, Appellant would have us equate a disciplinary action for
lying initiated by a school administrator to an adjudication of delinquency for
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an offense involving dishonesty or false statement. This argument is
meritless on its face. Rule 609 clearly limits the type of evidence with which
o convictions or
adjudications of delinquency. See, e.g., Commonwealth v. Chmiel, 585
Pa. 547, 889 A.2d 501, 534-534 (2005) (trial court properly precluded
defense from questioning witness on a burglary he had admitted committing,
but for which he was never convicted). The use of any other specific
instance of conduct for impeachment purposes is strictly prohibited under
Pa.R.E. 608(b)(1). Appellant cannot and does not seriously argue that a
high school disciplinary report constitutes either a conviction or adjudication
of delinquency. Therefore, the trial court properly precluded the introduction
of the report for impeachment purposes.
abridged his constitutional right to confront and cross-examine adverse
e
paradoxical proposition that the exclusion of patently inadmissible evidence
constitutes a violation of his constitutional rights. We decline to
countenance such a notion here.
Lastly, Appellant argues that there was insufficient evidence to support
his adjudication of delinquency on the charges of harassment and ethnic
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
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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).
The Crimes Code defines the offense of harassment, as is relevant to
this case, as follows:
A person commits the crime of harassment when, with the intent
communicates to or about such other person any lewd,
lascivious, threatening or obscene words, language, drawings or
caricatures[.]
18 Pa.C.S.A. § 2709(a)(4).
Commonwealth v. Cox, 72 A.3d 719, 721
(Pa. Super. 2013) (citation omitted)
papers. It is also apparent that, in this context, the swastika was utilized as
a threatening symbol to an individual of the Jewish faith. 5 Appellant testified
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5
Appellant claims that the swastika is not a threatening symbol but is
completely disingenuous. Notably, Appellant offers no explanation for
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school in September 2012. The principal at Perkiomen High School testified
that Appellant told her following the incident that he was aware the swastika
was a symbol of the Nazi Party and that millions of Jewish people were killed
under Nazi rule. Id. at 15. Thus, Appellant knew of the history of the
swastika and communicated to the victim the threatening drawing.
Additionally, the totality of the circumstances permits the inference that
harass, annoy or alarm the victim. The victim testified that in December
2012 the Appellant looked at him and spat on the floor of the classroom
during a discussion of Hanukkah in English class. Id. at 39-40. This
testimony not only establishes that Appellant was aware that J.L. was
Jewish, but is also suggestive that he harbored animosity towards the Jewish
faith and J.L. in particular.6 Based on the foregoing, we do not hesitate to
find the evidence was sufficient to support the adjudication of harassment.
We are
adjudication of ethnic intimidation. Section 2710 of the Criminal Code
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6
Although Appellant offered testimony contrary to that of the victim at the
adjudication hearing, we reiterate that the juvenile court was free to believe
all, part, or none of the evid
determinations. See In re B.T., 82 A.3d 431, 435 (Pa. Super. 2013) (where
ill not be
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intention toward the race ... of another individual or group of individuals, he
commits an offense under any other provision of this article ... with respect
a conviction for ethnic intimidation, the Commonwealth must prove that the
def
Commonwealth v. Miller, 613 Pa.
584, 594, 35 A.3d 1206, 1212 (2012). In this regard, Appellant argues only
that if the adjudication for the predicate offense here, harassment
cannot stand, than the ethnic intimidation adjudication must also fail. As we
have already determined that the adjudication of harassment was proper,
this claim fails.
Dispositional order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/29/2014
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