J-A04025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF S.M.F., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: S.M.F.
No. 1032 WDA 2014
Appeal from the Judgment Entered May 30, 2014
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-JV-0000014-2014
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 13, 2015
Juvenile Appellant, S.M.F., appeals from the judgment of sentence
entered on May 30, 2014, following her summary conviction1 for
harassment, 18 Pa.C.S.A. § 2709(a)(1). Upon review, we affirm.
The juvenile court set forth the facts and procedural history of this
case as follows:
[O]n or about February 27, 2014, [] Appellant, a twelve-
year-old female, while attending school at the Tidioute
Community Charter School, was directed by a teacher [] to
enter the office at the school due to her misbehavior.
[] Appellant closed the door to that office, would not allow
the teacher in, and [] Appellant and teacher began pushing
against each other with the door to the office. The teacher
suffered a shoulder injury as a result. [On March 3, 2014,
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1
A summary offense is not an act of delinquency under the Juvenile Act. 42
Pa.C.S.A. § 6302. “Thus, an individual who is under the age of 18 and
convicted of a summary offense has not been adjudicated delinquent.” In
re J.M., 42 A.3d 348, 353 (Pa. Super. 2012). However, as discussed infra,
Appellant was originally charged with aggravated assault, as well. Thus, this
case proceeded in juvenile court as an adjudication hearing.
*Retired Senior Judge assigned to the Superior Court.
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the Commonwealth filed a written juvenile allegation and
juvenile petition alleging dependency charging Appellant
with harassment and one count of aggravated assault
pursuant to 18 Pa.C.S.A. § 2702(a)(3).] At [the
adjudication] hearing, the Commonwealth moved to add a
count of [a]ggravated [a]ssault under 18 Pa.C.S.A.
§ 2702(a)(5) and the [c]ourt granted the motion. The
adjudication hearing occurred over two days on April 24,
2014, and May 30, 2014, with [] Appellant represented by
private counsel. Following the hearing, the [c]ourt found
that the Commonwealth did not meet its burden of proof
beyond a reasonable doubt with respect to the two counts
of [a]ggravated [a]ssault and, therefore, [] Appellant was
determined not to be delinquent. The [c]ourt did find []
Appellant guilty of the summary offense of harassment and
imposed a sentence of a $100.00 fine, costs, 20 hours of
community service and a letter of apology to the victim
pursuant to 42 Pa.C.S.A. § 6303(a)(5).
Juvenile Court Opinion, 7/21/2014, at 1-2. This timely appeal followed.2
On appeal, Appellant presents the following issues for our review:
I. Whether the trial court erred in finding sufficient
evidence to prove the element of “intent” beyond a
reasonable doubt for the summary offense of
harassment, 18 Pa.C.S.A. § 2709(a)(1)?
II. Whether the trial court erred in finding that Appellant
possessed the requisite specific intent under 18
Pa.C.S.A. § 2709(a)(1), when in fact, Appellant’s
actions were a manifestation of her disability?
III. Whether the trial court erred in disregarding the
opinion testimony regarding Appellant’s diagnosis of
Oppositional Defiance Disorder?
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2
Appellant filed a notice of appeal on June 27, 2014. On that same day,
the juvenile court issued an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied timely. The juvenile court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on July 21, 2014.
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Appellant’s Brief at 9 (suggested answers omitted).
In her first issue presented, Appellant argues that the juvenile court
erred by finding the Commonwealth presented sufficient evidence to support
her adjudication. Id. at 16-20. She claims that the Commonwealth failed to
prove that she had the intent to harass, annoy or alarm the victim as
required under the harassment statute. Id. at 16. More specifically,
Appellant contends:
Appellant’s actions occurred in reaction to a single, isolated,
exigent circumstance that [the victim] testified was the
consequence of her own actions, and not those of []
Appellant. […] Appellant is a special needs child with a
diagnosis of [Oppositional Defiance Disorder (“ODD”)], a
behavioral disorder that by its very nature hinders a child’s
ability to recognize or appreciate that their [sic] behavior is
defiant.
Id. at 17.
Thus, in sum, Appellant argues:
Considering the totality of the circumstances and the
testimony of [the victim], the [juvenile] court erred by
inferring that [] Appellant knew or should have known that
her conduct would harass, annoy, or alarm [the victim]. []
Appellant was confronted about her behavior three hours
earlier, which triggered her ODD symptoms and caused her
to become agitated and defiant. [] Appellant further
reacted to being escorted by her teacher into a room with
another special needs student known to have aggressive
tendencies. In [the victim’s] opinion, this caused []
Appellant to perceive that she had been placed into this
situation by her teacher. [] Appellant’s reaction to this
situation included yelling, sitting on the floor, blocking the
door, and in [the victim’s] own opinion, intending to keep
[the victim] out of the room. Although [] Appellant likely
knew that she was blocking the door, at no point during the
trial was any testimony elicited from which it could be
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inferred that [] Appellant knew or should have known that
her actions would harass, annoy, or alarm [the victim].
Id. at 19-20.
As our Supreme Court has noted, the standard of review used when
evaluating the sufficiency of the evidence in a conviction for a summary
offense is
whether, viewing all the evidence admitted at trial, together
with all reasonable inferences therefrom, in the light most
favorable to the Commonwealth, the trier of fact could have
found that each element of the offenses charged was
supported by evidence and inferences sufficient in law to
prove guilt beyond a reasonable doubt.
Commonwealth v. Williamson, 616 A.2d 980, 981 (Pa. 1992).
A person may be convicted of harassment “when, with intent to
harass, annoy or alarm another, the person: (1) strikes, shoves, kicks or
otherwise subjects the other person to physical contact, or attempts or
threatens to do the same[.]” 18 Pa.C.S.A. § 2709(a)(1). In addressing the
proper interpretation of the statutory phrase “with intent to harass,” this
Court noted:
The law does not permit an actor to avoid the consequences
of [her] conduct by disclaimers of an intent to injure or
harm or offend or “harass.” Rather, the law obliges the
factfinder to rely for the discernment of intent upon
demonstrative manifestation of that intent. Every action
produces a reaction, every act has an effect. The nature or
essence of an act is most often, and usually convincingly,
determined by its effect or result. When an individual
knows or should know the consequences of his act, [s]he
is presumed to be aware of the nature of [her] act, and
[her] decision to perform the act is a manifestation of [her]
intent to effect the results of [her] act.
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Commonwealth v. Hart, 559 A.2d 584, 587 (Pa. Super. 1989) (citation
omitted) (emphasis in original). “An intent to harass may be inferred from
the totality of the circumstances.” Commonwealth v. Cox, 72 A.3d 719,
721 (Pa. Super. 2013) (citation omitted).
Here, the juvenile court opined:
It can certainly be inferred from [her] conduct that []
Appellant [] intended to harass, annoy, or alarm the victim
teacher by engaging in [the chosen] conduct. Appellant
was a student under the victim’s authority. She knew that
the teacher wanted to enter the room where [] Appellant
was placed. She was receiving verbal commands from the
victim to stop her conduct and allow the victim in. By
repeatedly kicking against the door and the victim and
preventing her from entering, even after hearing and
ignoring the demands of [the victim], it can be inferred that
[] Appellant intended to harass, annoy, or alarm the victim.
Juvenile Court Opinion, 7/21/2014, at 3.
Upon review of the record, looking at the totality of the circumstances
in the light most favorable to the Commonwealth as our standard requires,
we agree. The victim testified that she questioned Appellant, one of her
students, regarding her disrespect towards another teacher and Appellant
started yelling. N.T., 4/24/2014, at 9. Appellant was directed to a nearby
office and told to sit down inside. Id. at 11. Appellant went into the office
and shut the door and dead-bolted it. Id. at 12. There was another student
and a doctor, a special education supervisor, locked in the office with
Appellant. Id. at 12-13. The doctor unlocked the office door and a struggle
between the victim and Appellant ensued. Id. at 13-14. While the victim
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tried to push the door open with her shoulder, Appellant pushed back. Id.
at 15-16, 52. The victim estimated that she was hit in the shoulder by the
door approximately 10-20 times. Id. at 16, 50. While this was happening,
the victim asked Appellant “to please open the door.” Id. at 45. Appellant
was yelling, “leave me alone.” N.T., 5/30/2014, at 55, 66. The doctor, who
was still inside the office with Appellant, was instructing Appellant to get
away from the door to let the victim inside. Id. at 66. The victim testified
that she did not believe that Appellant intended to hurt her, but that
Appellant knew what she was doing and it was Appellant’s intent to keep her
out of the office. Id. at 41-42, 65. The eyewitness doctor testified that she
told Appellant to open the door. Id. at 84. Appellant replied that the victim
put her in the office and she was not moving. Id. The doctor stated that
she “believed that when [Appellant] was in that heightened state [Appellant]
knew it was not right to be pushing against the door, but [] [did] not believe
[Appellant] knew she was hurting [the victim].” Id. at 107. The doctor
further stated that she “knew that [Appellant] was pushing the door to keep
[the victim] out.” Id. at 110.
Here, there is no dispute that the victim was subjected to physical
contact and Appellant was the cause. Based upon all of Appellant’s actions
and words, we believe the Commonwealth proved intent under the
harassment statute. Despite pleas to open the door at issue, Appellant
persisted in pushing back and yelled to be left alone. As a student, she
knew or should have known the consequences of her acts against her
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teacher. Her continued perseverance in keeping the victim out of the office
showed Appellant’s intent to annoy, alarm, and harass. Accordingly,
Appellant’s first issue is meritless.
We will examine Appellant’s second and third issues as presented
together, wherein Appellant further contends that the juvenile court erred in
convicting her of harassment because she lacked specific intent due to the
manifestation of her ODD. Appellant’s Brief at 20-27. Pointing to the
Individuals with Disabilities Education Act, the Pennsylvania Code, and
subsequent case law, Appellant argues, “[c]ourts have grappled with the
difficult question, as to whether special needs children with behavioral issues
should be disciplined by the school system or prosecuted by the judicial
system when their behavior becomes severe.” Id. at 22. Appellant
contends that “the alleged victim and the [s]chool both understood that []
Appellant did not possess the intent required of any criminal statute.” Id. at
24. Appellant asserts that the juvenile court erred in failing to “consider the
opinion testimony of [the eyewitness doctor] regarding Appellant’s ODD[,]”
because of her “extensive educational background and work with special
needs children” and she “was the only adult to witness the incident from
within the office where [] Appellant was located.” Id. at 25-26.
On these issues, the juvenile court determined:
[] Appellant did not assert an affirmative defense of
insanity or mental infirmity and the Pennsylvania Rules of
Juvenile Court Procedure do not provide for such. []
Appellant did not file a request for a psychiatric evaluation.
No case law was uncovered regarding an insanity or mental
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infirmity defense in a juvenile proceeding. Instead,
Appellant is asserting that [] Appellant’s harassing conduct
was a manifestation of her ODD and, therefore, the [c]ourt
could not find that Appellant intended to harass, annoy[,] or
alarm the victim, the mens rea requirement for a conviction.
[] Appellant cites no support for this proposition and no
such support could be found. [Thus, there is n]o appellate
support for the proposition that ODD, recognized as one of
the most common behavioral and emotional disorders
among children, without a determination of insanity,
[constitutes] a defense to criminal conduct.
* * *
It is often the juveniles in the delinquency system [who]
carry this type of diagnosis and, if so, it is addressed at the
disposition stage of the delinquency action. [The victim and
the eyewitness doctor], while extremely experienced and
qualified to work with children with ODD in the educational
setting, are not psychologists or psychiatrists qualified to
render expert testimony that [] Appellant was insane, nor
has [] Appellant asserted [insanity] as a defense in this
case. While the [c]ourt initially permitted testimony, it did
not consider the testimony in determining the intent issue
with respect to any of the crimes charged. The [c]ourt’s
refusal to consider the testimony as such was not error and,
if in error, was harmless.
Juvenile Court Opinion, 7/21/2014, at 4-5.
We agree. “The general presumption is that every man is normal and
is possessed of ordinary faculties; such defenses as intoxication, insanity,
and aphasia (or a mind not conscious of its acts) are affirmative defenses,
and the burden is on the defendant to establish them.” Commonwealth v.
Morrison, 109 A. 878, 880 (Pa. 1920). “Under Pennsylvania Rule of
Criminal Procedure 573, a defendant must disclose the assertion of certain
defenses, such as alibi or insanity, before the commencement of a trial,
thereby giving the Commonwealth notice and the opportunity to prepare its
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case in chief.” Commonwealth v. Collins, 810 A.2d 698, 702 (Pa. Super.
2002), citing Pa.R.Crim.P. 573(C)(1)(a), (b). Upon review, the only
testimony presented related to ODD was the testimony offered by the victim
teacher and the eyewitness doctor. Neither were qualified as experts. Their
opinion testimony pertaining to ODD was limited to the challenges those
witnesses faced with regard to educating Appellant. There was no medical
testimony describing the actual condition or its effects on Appellant
specifically. The witnesses that did testify knew Appellant’s diagnosis,
worked with her regularly in the educational setting, and still opined that
Appellant understood the harassing nature of her conduct. Most notably,
both witnesses stated that they did not believe Appellant intended to harm
the victim physically, but that Appellant was able to appreciate that her
conduct was nevertheless alarming, annoying, and harassing. Thus, we
conclude that Appellant did not meet her burden of proving an affirmative
defense. Having already determined there was sufficient evidence to
support her conviction, Appellant’s second and third issues must fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/13/2015
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