In the Interest of: S.R., A Minor, Appeal of: S.R.

J-S85007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: S.R., A MINOR :
:
:
:
:
: No. 290 WDA 2017
Appeal from the Order Dated December 15, 2016
In the Court of Common Pleas of Allegheny County Juvenile Division at
No(s): CP-02-JV-0001638-2016
BEFORE: BOWES, J., PANELLA, J., and STABILE, J.
MEMORANDUM BY BOWES, J.: FILED MAY 14, 2018
S.R. appeals from the dispositional order entered on December 15,
2016, following her adjudication of delinquency for indecent assault. We
affirm.
The juvenile court offered the following summary of the relevant facts.
The case initiated when a counselor filed a childline report
on April 28, 2016, reporting that the victim, H.R., had alleged that
a child from her neighborhood had touched her inappropriately.
As a result of that childline, the case was referred to . . . the
Allegheny County Police Department, [which] began investigating
H.R.’s claims. The victim underwent a forensic interview on May
18, 2016, at Mercy Hospital. In this interview, the victim alleged
that she was playing outside with [Appellant] in their
neighborhood. She reported to playing a game called “ding dong
ditch.”1 During one of these incidents, the victim reported that
they were hiding behind [Appellant’s] house when [Appellant]
touched her “privates” under her underwear. She also reported
that [Appellant] asked her to touch [Appellant’s] “privates” during
this incident. . . . The victim reported that she told her mother
and her counselor the next day about the incident. This report
and subsequent childline led to the filing of the instant delinquency
petition.
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1 A game in which children ring doorbells and run from the
homes before anyone can answer the door.
In [its] case in chief, [the Commonwealth] called the victim,
H.R., as [its] first witness. The following is a summary of her
testimony. H.R. was seven years old at the time of her testimony
and six when the incident occurred. H.R. testified that she had
asked her mother for permission to play with [Appellant] before
her mom went to bible study. Her mother agreed and H.R. went
to [Appellant’s] neighborhood to play. The victim testified that
the two were playing ding, dong, ditch. At some point during the
game, the victim reported that [Appellant] had thrown a rock at
one of the home’s windows. She reported that the two ran behind
[Appellant’s] house after they saw a police car. After some
hesitation, H.R. testified that [Appellant] had touched her privates
on the day in question. H.R. also testified that [Appellant] touched
her under her underwear and that it was skin on skin. She
reported that she continued to play with [Appellant] after this
incident occurred. At some point during this time, she also started
playing with [Appellant’s] sister, A.R. Shortly thereafter,
[Appellant] and the victim were playing in an adjacent yard when
she alleged that [Appellant] again touched her vagina skin to skin.
The victim then testified that [Appellant] asked her to touch
[Appellant’s] private parts . . . .
The next day, the victim reported telling her mother and a
counselor about the incidents that had occurred the night before
with [Appellant]. During cross-examination, the child reported to
playing with [Appellant] from 7:00[ p.m.] to 10:00[ p.m.] on a
Wednesday. She remembered that it was warm because she was
wearing green shorts and a short-sleeved shirt. She also said that
[Appellant] had used one hand and that she put it underneath
each layer of her clothing until she reached her bare skin under
her underwear. The victim revealed that she had previously been
“touched” by a family friend and her grandfather. The victim
demonstrated knowledge about the nature of inappropriate
touching. She was able to articulate the difference between being
touched and being touched “inappropriately.” [The
Commonwealth] asked that the forensic interview DVD be
admitted into evidence and viewed by the court. There was no
objection to this request from defense counsel. The court watched
the interview and it was admitted into evidence.
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During her case in chief, [Appellant’s counsel] called
[Appellant’s] eleven-year-old sister, A.R. She testified that she
was only a few feet away from Appellant and the victim while they
were playing on that day. She testified that she had not wanted
to play ding, dong, ditch but instead wanted to talk to her neighbor
and draw with chalk. She testified that she was drawing with the
chalk for about an hour and that she observed [Appellant] and
victim knocking on a door and then hiding near a bush on the side
of the house. She reported having her eyes on the two for the
entire time that she was outside talking to the neighbor and
drawing with chalk. A.R. also testified that she observed
[Appellant] and the victim during the alleged rock throwing
incident. She testified that one of the girls threw a rock at the
window and then the police arrived. She reported that she and
[Appellant] went into their home while her mother talked to the
police. She testified that they went to bed after that and did not
go back outside. A.R. also reported that she had talked to
[Appellant] before coming into court so that she could remember
things right and get her “story straight.” A.R. had never reported
this information to the police or anyone else in this case.
[Appellant’s counsel] also called [Appellant] during her case
in chief. [Appellant] testified that the girls had been playing ding
dong ditch and that they had been hiding behind a bush near the
home. She reported that they hid behind the bush a number of
times while playing the game. [Appellant] testified that they
threw rocks up onto the porch of one of those homes. She
reported that the resident opened the door and one of the rocks
hit the door. The police came shortly after. After some discussion
with the police, she reported that she remained in the house with
her father and that her sister and mother left to see a movie.
Juvenile Court Opinion, 5/22/17, at 3-6 (footnote, unnecessary capitalization,
and some internal quotation marks omitted).
In the subsequent delinquency petition, Appellant, who was twelve
years old at the time of the incident, was charged with conduct constituting
aggravated indecent assault. The Commonwealth later amended the petition
to include indecent assault. Following a hearing, the juvenile court concluded
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that the Commonwealth proved that Appellant committed acts of indecent
assault, and adjudicated Appellant dependent by order of December 15, 2016.
Having also determined that Appellant was in need of treatment, supervision,
or rehabilitation, the juvenile court placed Appellant on probation until further
order of court, directed that she participate in counseling, and ordered that
she pay standard court costs.
Appellant filed a post-dispositional motion in which she contended that
the adjudication was against the weight of the evidence. The juvenile court
denied the motion without a hearing. Appellant timely filed a notice of appeal,
and both Appellant and the juvenile court complied with Pa.R.A.P. 1925.
Appellant presents the following questions for this Court’s consideration.
I. Is the adjudication of delinquency not supported by
sufficient evidence in that the Commonwealth failed to prove that
any indecent contact that occurred was done without [H.R.’s]
consent and/or was done with the intent of arousing sexual
desire?
II. Is the disposition in this case improper as the length
of [Appellant’s] probation is indefinite and the exact costs that
[she] is required to pay are not included in the Order, and neither
is an inquiry into [Appellant’s] ability to pay?
Appellant’s brief at 8.
We begin with our standard of review of dispositional orders in juvenile
proceedings. The Juvenile Act grants broad discretion to juvenile courts in
determining appropriate dispositions. In re C.A.G., 89 A.3d 704, 709
(Pa.Super. 2014). Indeed, the Superior Court will not disturb the lower court’s
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disposition absent a manifest abuse of discretion. In the Interest of J.D.,
798 A.2d 210, 213 (Pa.Super. 2002).
Where an appellant challenges the sufficiency of the evidence to support
the adjudication the following principles are applicable.
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
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, 348–49 (Pa.Super. 2013) (citation and quotation
marks omitted).
“A person is guilty of indecent assault if the person has indecent contact
with the complainant[ or] causes the complainant to have indecent contact
with the person . . . and: (1) the person does so without the complainant’s
consent[.]” 18 Pa.C.S. § 3126(a)(1). Indecent contact is defined as “Any
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touching of the sexual or other intimate parts of the person for the purpose of
arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.
Appellant claims that the Commonwealth failed to prove beyond a
reasonable doubt either that Appellant “ever touched H.R. inappropriately” or
that any touching was done to satisfy Appellant’s sexual desire. Appellant’s
brief at 17. Our review of the evidence does not support Appellant’s
contentions.
H.R. testified that she and Appellant were playing outside on a warm
Wednesday evening. N.T., 12/15/16, at 8, 14. On two occasions, while hiding
from neighbors whose doorbells they had rung, Appellant reached under H.R.’s
shorts and underwear, and used her hand and fingers to touch the part of
H.R.’s body that she uses “to go to the bathroom,” specifically “to pee.” Id.
at 18-21, 39. Additionally, Appellant requested that H.R. touch Appellant’s
“private part,” i.e., the part she uses to pee. Id. at 22.
This Court has repeatedly affirmed convictions for indecent assault
based on similar evidence. For example, in Commonwealth v. McClintic,
851 A.2d 214, 216 (Pa.Super. 2004), rev’d on other grounds, 909 A.2d 1241
(Pa. 2006), McClintic likewise argued that the evidence failed to show that the
touching at issue, the grasping of the victim’s breast, was for the purpose of
sexual arousal rather than “an act of physical violence and intimidation.” We
disagreed, explaining as follows.
Although the evidence indicates that [the defendant]
intended to intimidate his victim, and initially was successful in
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doing so, that fact did not prevent the jury from concluding that
the manner in which he accomplished his intimidation indeed had
a sexual component. [McClintic] surprised the sleeping victim in
her bedroom. He sat close to her as she lay in her bed in the
middle of the night. After getting the money he sought, he
reached out, grabbed her breast and pinched it forcefully. The
defense argued that the circumstances surrounding the touching
established that it was not sexually motivated, but the jury was
free to determine [McClintic’s] intent based on the circumstances
presented. Because those circumstances support the jury’s
ultimate decision, the evidence was sufficient to establish the
crime and [McClintic] is not entitled to relief.
Id. at 216. See also Commonwealth v. Richter, 676 A.2d 1232, 1236
(Pa.Super. 1996) (holding evidence was sufficient to sustain indecent assault
conviction where “Richter ‘put his hands under [the complainant’s] shirt and
fondled her breasts’ against her wishes”); In Interest of J.R., 648 A.2d 28,
34 (Pa.Super. 1994) (rejecting J.R.’s argument that the evidence was
insufficient to show that there was any sexual touching for the purpose of
arousing sexual desire by stating “it does not strain the very limits of credulity
to suggest that, when J.R. removed A.B.’s clothing, lifted her up, and licked
her vaginal area, his conduct fell within the purview of the indecent assault
statute”).
In asserting that the evidence was insufficient, Appellant largely attacks
H.R.’s credibility, making arguments more appropriate to a claim that the
adjudication is against the weight of the evidence. Appellant maintains that
H.R.’s testimony is so riddled with “‘I don’t remember’s and other
inconsistencies” as to make the adjudication “the product of conjecture and
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surmise.” Appellant’s brief at 17. The juvenile court had a very different
assessment:
There was no evidence that [H.R.’s] testimony had been
tainted, either by another party or by prior experiences of sexual
abuse. [H.R.] was articulate and was able to explain the
difference between the truth and a lie. Although [H.R.] was able
to testify about more specific details at trial [than she offered
during the forensic interview], the court attributed that to the
different questions that were asked by the Assistant District
Attorney versus in the forensic interview. Additionally, [H.R.]
reported the incident almost immediately after it occurred. Her
recollection of the incident to the counselor, the forensic
interviewer, and at trial was substantially similar. This court finds
that any inconsistencies were minor and were attributable to
[H.R.’s] age at the time of this incident and at trial.
Juvenile Court Opinion, 5/22/17, at 8 (unnecessary capitalization omitted).
The juvenile court was entitled to believe H.R.’s allegations, and its
factual findings are supported by the record. Accordingly, they will not be
disturbed by this Court. See In re B.T., 82 A.3d 431, 434 (Pa.Super. 2013)
(“[C]redibility determinations in juvenile proceedings are within the exclusive
province of the hearing judge.”); In re A.D., 771 A.2d 45, 53 (Pa.Super.
2001) (“The factual finding . . . was based upon a credibility determination
and we, as an appellate court, will not substitute our judgment for that of the
fact finder.”).
Having concluded that the adjudication was based upon sufficient
evidence, we turn to Appellant’s objections to the juvenile court’s disposition.
We initially observe that the alternatives for disposition of a delinquent child
are statutorily prescribed as follows, in relevant part.
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(a) General rule.--If the child is found to be a delinquent child
the court may make any of the following orders of disposition
determined to be consistent with the protection of the public
interest and best suited to the child’s treatment, supervision,
rehabilitation and welfare, which disposition shall, as appropriate
to the individual circumstances of the child’s case, provide
balanced attention to the protection of the community, the
imposition of accountability for offenses committed and the
development of competencies to enable the child to become a
responsible and productive member of the community:
....
(2) Placing the child on probation under supervision of the
probation officer of the court . . . under conditions and
limitations the court prescribes.
....
(5) Ordering payment by the child of reasonable amounts of
money as fines, costs, fees or restitution as deemed
appropriate as part of the plan of rehabilitation considering
the nature of the acts committed and the earning capacity
of the child. . . .
42 Pa.C.S. § 6352(a)(2), (5).
Appellant first attacks the juvenile court’s imposition of an indefinite
term of probation. In doing so, Appellant makes many of the arguments this
Court rejected in In re S.A.S., 839 A.2d 1106, 1106 (Pa.Super. 2003), a case
Appellant argues was wrongly decided. Appellant’s brief at 25. Specifically,
Appellant suggests that an indefinite term of probation should be illegal for a
juvenile, as it would be for an adult, and that a definite term no longer than
the maximum available for a convicted adult is required. Id. at 24-25.
Appellant also contends that a disposition of probation until further order of
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court is fundamentally unfair, and thus a violation of due process. Id. at 21-
24.
In In re S.A.S., the juvenile was adjudicated delinquent at age 15 for
possession of a small amount of marijuana. Like Appellant, S.A.S. was placed
on probation “until further order of court.” S.A.S. claimed that his disposition
was illegal because it exceeded the maximum penalty available under the
crimes code for the offense. In re S.A.S., supra at 1107. This Court rejected
S.A.S.’s challenge as follows.
[W]e agree with [S.A.S.] that a juvenile’s term of commitment
may not exceed four years or the maximum term of imprisonment
he could have received if convicted as an adult. We also agree
that under the sentencing code for adult offenders, a term of
probation may not exceed the possible maximum term of
imprisonment. However, juvenile proceedings are not criminal
proceedings. The Juvenile Act vests the court with authority to
set a term of probation under conditions and limitations the court
prescribes, so long as the disposition is consistent with the
protection of the public interest and best suited to the child’s
treatment, supervision, rehabilitation, and welfare. The probation
limitations set forth in the crimes code are simply inapposite to
the Juvenile Act; the two statutes encompass independently
different systems with different purposes and rules. In contrast
to the general adult sentencing code, the Juvenile Act empowers
juvenile courts with wide latitude to render probationary terms
that are appropriate to the individual circumstances of the child’s
case.
We hold that the juvenile court had the authority under the
Juvenile Act to impose upon [S.A.S.] a period of probation that
exceeded the maximum possible term of incarceration for the
particular offense at issue and [S.A.S.’s] disposition is not illegal.
Nevertheless, [S.A.S.’s] term of probation is still limited by the
jurisdictional constraints of the Juvenile Act. Moreover, given the
quasi-open nature of [S.A.S.’s] probation, [S.A.S.] may choose to
petition the Juvenile Court for relief at the earliest appropriate
time. Accordingly, we affirm [S.A.S.’s] dispositional order.
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Id. at 1109.
Thus, based upon controlling precedent, the statutory maximum
sentence for an adult convicted of indecent assault has no bearing on the
validity of Appellant’s disposition. Appellant’s arguments to the contrary, and
her disapproval of In re S.A.S., entitle her to no relief.
Further, Appellant has not convinced us that her disposition constitutes
a violation of due process. Appellant’s probation is subject to specific terms.
Adjudicatory/Dispositional Order, 12/15/16, at 2 (providing Appellant is
placed on probation until further order of court, is subject to the rules and
regulations of the probation office, must have no contact with the victim, shall
participate in the SSU/SAFE community-based program, and must report for
fingerprinting, photographs, and provision of a DNA sample). The juvenile
court will consider the propriety of continued supervision at least every six
months at dispositional review hearings, and Appellant herself may at any
time move for clarification, modification, or termination of the terms of her
probation. See Pa.R.J.C.P. 610 (“Dispositional and Commitment Review”);
Pa.R.J.C.P. 612 (“Modification or Revocation of Probation”). Moreover, as
Appellant acknowledges and this Court has previously noted, a term of
probation with no prescribed end date cannot extend beyond the jurisdiction
of the juvenile court. Appellant’s brief at 27 (“Granted, the juvenile court
loses authority over the juvenile when he or she attains the age of 21. At the
latest, probation should end at that time.”); In re S.A.S., supra at 1109
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(“[The juvenile’s] term of probation is still limited by the jurisdictional
constraints of the Juvenile Act.”).
With her last issue, Appellant contends that the juvenile court erred in
requiring her to pay costs without first determining her ability to pay, and in
not specifying the exact amount of costs in the dispositional order.
Specifically, Appellant presents the following argument.
Here, the record does not indicate any attempt by the
[c]ourt to determine [Appellant’s] ability to pay costs. Moreover,
due process requires that she be informed of the amount that she
must pay at the time of disposition, just like she must be informed
of the length of time she can expect to be on probation. Costs
could be 5 dollars, 50 dollars, 500 dollars, or 5,000 dollars. Maybe
[Appellant] can handle earning some of the lesser amounts to pay
costs, but there is no indication at all that she has the earning
capacity at this time to make a $5,000 payment to the juvenile
court. If there is such a “standard” amount imposed upon all
juvenile defenders, surely the juvenile court can figure out that
amount and tell the juveniles at their disposition hearings.
Fundamental fairness requires it.
Appellant’s brief at 30-31.
Appellant did not raise these issues before the juvenile court at the
dispositional hearing or in her post-disposition motion, thereby depriving the
juvenile court of the opportunity to address Appellant’s claim.1 Therefore, the
claims are waived. See, e.g., In re B.T.C., 868 A.2d 1203, 1205 (Pa.Super.
2005) (“B.T.C. argues that the trial court imposed the restitution without
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1Appellant raised the claim for the first time in her Rule 1925(b) statement;
however, the juvenile court did not address the issue in its Rule 1925(a)
opinion.
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considering . . . B.T.C.’s earning capacity. However, we find this claim to be
waived. We have thoroughly scrutinized the transcript of the disposition
hearing and B.T.C. . . . [never] objected to the restitution on these grounds.
. . .”).
Even if Appellant had not waived the claim, we would grant her no relief.
The Juvenile Act provides that the court may order the juvenile to pay fines,
costs, fees, or restitution upon consideration of, inter alia, the earning capacity
of the child. 42 Pa.C.S. § 6352(a)(5). This Court has explained that
a juvenile’s earning capacity can be determined by examining
relevant factors such as:
the juvenile’s mental ability, maturity and education;
work history, if any; the likelihood of future
employment and extent to which the juvenile can
reasonably meet a restitution obligation; the impact
of a restitution award on the juvenile’s ability to
acquire higher education and thus increase the
juvenile’s earning capacity; and the juvenile’s present
ability to make restitution.
Commonwealth v. B.D.G., 959 A.2d 362, 367-68 (Pa.Super. 2008) (en
banc) (quoting In Interest of Dublinski, 695 A.2d 827, 830 (Pa. Super.
1997)).
The record includes two pre-disposition reports, detailing Appellant’s
development and family circumstances. Pre-Disposition Report, 11/8/16, at
1-2; Pre-Disposition Report, 12/8/16, at 1-2. Appellant testified at the
adjudicatory hearing, enabling the juvenile court to gauge Appellant’s verbal
skills. Appellant’s testimony included reference to past employment. N.T.,
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12/15/16, at 81-82. Thus, although the record contains no express inquiry
by the juvenile court specific to Appellant’s earning capacity and ability to pay,
the record does not support Appellant’s claim that the juvenile court had no
information relevant to the issue. Further, no relief is due on Appellant’s
complaint that “there is no indication at all that she has the earning capacity
at this time” to make more than a small amount. While it is one factor to be
considered, the law does not require that the juvenile have a present financial
ability to make immediate payment. Dublinski, supra at 830. Appellant was
thirteen years old at the time of the adjudication, suggesting that she has
ample time to earn money before she turns twenty-one.
We do agree with Appellant that she is entitled to an itemized lists of
costs for which she is responsible. However, she offers no authority for the
proposition that the juvenile court is obligated to specify the numbers at the
dispositional hearing or that the amounts must be detailed in the dispositional
order itself. We have no doubt that Appellant has access to that information
through the juvenile court or probation office.2 See also In re C.A.G., supra
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2 This circumstance highlights the reason this Court requires issues to be
raised prior to appeal. Had Appellant timely sought to make that information
part of the record, and thereby learned that the amount is higher than is
appropriate for her earning capacity, she could have presented this Court with
an argument not based upon speculation. Further, had she made such a
request and been denied the information, we would be in a position to address
that issue.
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at 710-11 (discussing various statutorily-defined costs imposed on juveniles
who are adjudicated delinquent).
In conclusion, Appellant has failed to persuade us that the juvenile
court’s dispositional order is the product of a manifest abuse of discretion. In
Interest of J.D., supra.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/14/2018
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