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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.G.C., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
APPEAL OF: A.G.C.
No. 1324 MDA 2015
Appeal from the Dispositional Order May 26, 2015
In the Court of Common Pleas of Berks County
Juvenile Division at No(s): CP-06-JV-0000487-2014
BEFORE: MUNDY, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED APRIL 25, 2016
A.G.C. (hereinafter “Juvenile”) appeals the dispositional order entered
in the Court of Common Pleas of Berks County by the Honorable Scott E.
Lash on May 26, 2015, following his adjudication of delinquency 1 for one
count of indecent assault.2 After a careful review, we remand for further
proceedings consistent with this memorandum and our Judgment Order
quashing the appeal filed in In the Interest of A.G.C., a minor; Appeal of
: A.G.C., 1323 MDA 2015 (hereinafter “1323 MDA 2015”).
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1
Appellant purports to appeal from the order of adjudication of delinquency;
however, “[i]n 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.” In re N.W., 6 A.3d 1020, 1026 n.1 (Pa.Super.
2010) (citation omitted).
2
18 Pa.C.S.A. § 3126(a)(7).
*Former Justice specially assigned to the Superior Court.
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On December 18, 2014, the Commonwealth charged Juvenile with
violating 18 Pa.C.S.A. § 3126 (a)(7), indecent assault with person less than
13 years of age, 18 Pa.C.S.A. § 3126 (a) (8), indecent assault with person
less than 16 years of age, and 18 Pa.C.S.A. § 3127, (a) indecent exposure
at juvenile docket CP-06-JV-0000487-2014 for contact that occurred “on or
about November 15, 2013, and several unknown dates.” Juvenile also
admitted to committing the act of possession of a weapon on school
property, 18 Pa. C.S.A. § 912(b), on December 29, 2014, for an offense that
had occurred on October 14, 2014, wherein he was in possession of a box
cutter. This matter was docketed at CP-06-JV-352-2014. Filings pertaining
to both matters were in some instances filed to both dockets, although only
one adjudicatory hearing was held on February 17, 2015. At the conclusion
of the hearing, the Juvenile Court found the Juvenile involved in the charge
of indecent assault of person less than 13 years of age and dismissed the
remaining two charges.
On May 26, 2015, a dispositional hearing was held for CP-06-JV-
0000487-2014 and CP-06-JV-0000352-2014. The juvenile court adjudicated
Juvenile delinquent and he was placed in a residential facility. The
dispositional order was filed in both dockets.
On June 3, 2015, the Juvenile filed a Post-Dispositional Motion in both
dockets, and following a hearing, the juvenile court denied the same.
Appellant filed a timely notice of appeal in both dockets on July 31, 2015;
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however, while a concise statement of errors complained of on appeal
raising two issues was filed herein, counsel filed a statement of intent to file
an Anders/McClendon3 brief in lieu of statement of errors complained of
on appeal pursuant to Pa.R.A.P. 1925(c)(4) in 1323 MDA 2015, claiming that
after a review of the transcripts, she discerned no meritorious issues to
pursue on appeal.
Appellate counsel filed her petition for leave to withdraw as counsel
and Anders brief with this Court on January 20, 2016, seeking to withdraw
from 1323 MDA 2015 on the basis of frivolity and an advocate’s brief herein
wherein the Juvenile challenges the juvenile court’s denial of his pretrial
discovery request for disclosure of information pertaining to the identity of
the camp counselor to whom the victim had reported the incident and the
weight of the evidence.
A review of the record reveals Juvenile is attempting both to raise
meritorious issues in one appeal and to seek to withdraw as counsel on the
basis of frivolity in another appeal to a single dispositional order entered on
May 26, 2015, adjudicating Juvenile delinquent. As we stated in our
Judgment Order quashing the appeal filed to 1323 MDA 2015, however,
Juvenile cannot file two separate appeals to the same final order:
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3
Anders v. California, 386 U.S. 738 (1967), Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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The law is clear that the Juvenile Act itself does not provide a
right of appeal. Rather, a juvenile's right of appeal stems from
our state constitution: Article V Section 9 of the Pennsylvania
Constitution provides that “there shall be a right of appeal from
a court of record or from an administrative agency to a court of
record or to an appellate court.” The Juvenile Court is a court of
record and pursuant to Pa.R.A.P. 341, appeal may be taken as of
right from any final order of an administrative agency or lower ...
court. The final Order of a Juvenile Court is the Dispositional
Order as to the Delinquent Child, pursuant to 42 Pa.C.S. § 6352.
In re M.D., 839 A.2d 1116, 1118 (Pa.Super. 2003) (citations omitted).
Although it is possible that counsel is of a mind that there are no
meritorious issues to appeal, in light of the record, we cannot assume that to
be so, nor can we address the two issues counsel sets forth in her
advocate’s brief in light of the confusion created by the above-mentioned
circumstances. As such, we are compelled to remand this matter with
instructions to counsel to file either a proper petition for leave to withdraw 4
along with an Anders brief or an advocate’s brief within twenty (20) days of
the date of this memorandum. A.G.C. and the Commonwealth shall have
twenty (20) days from the date that counsel files her brief in order to file a
responsive brief, if so necessary.
Case remanded with instructions. Jurisdiction retained.
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4
We caution counsel that should she seek to withdraw under
Anders/McClendon, this court has found the requirement of the Juvenile
Act that notice be given to a juvenile and his/her parents applicable to
Anders cases involving juveniles. Commonwealth v. Heron, 674 A.2d
1138, 1140 (Pa.Super. 1996).
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