J. S83003/16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: : IN THE SUPERIOR COURT OF
B.A.C., A MINOR : PENNSYLVANIA
:
APPEAL OF: B.A.C., A MINOR : No. 1652 WDA 2015
:
Appeal from the Order Entered September 17, 2015,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-JV-0000049-2015
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 22, 2016
B.A.C. appeals from the juvenile dispositional order entered in the
Court of Common Pleas of Erie County on September 17, 2015, adjudicating
him as a delinquent and in need of treatment, supervision, and rehabilitation
after the juvenile court adjudged him delinquent of rape, sexual assault,
aggravated indecent assault, indecent assault, and indecent exposure. 1 We
affirm.
The juvenile court set forth the following, gleaned from the
delinquency hearing:
The Commonwealth first called S.S. to testify.
S.S. testified that she is currently seventeen years
old and was born [in April 1998]. Appellant is her
cousin. She identified Appellant on the record. S.S.
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, 3125(a)(1), 3126(a)(1), and 3127(a),
respectively.
J. S83003/16
continued that, beginning December 26, 2008, she
and her siblings moved into Appellant’s home. She
stated that her aunt and uncle, M.C. and A.C., Sr.,
had eleven people living in the house at the time, to
include their children, Appellant, R.C., B.C., J.C. and
S.C.; and S.S.’s siblings, Z.S., St.S. and C.S. There
was a period of time wherein S.S. and Appellant did
not live in the home after it was destroyed by fire.
S.S. and Appellant moved back into the home in
2013. As the house was being rebuilt, everyone had
rooms in the first unfinished floor which S.S. referred
to as the “basement.” S.S. slept in a basement
room with her sisters, St.S. and C.S. Appellant
shared a room with his brother R.C. and S.S.’s
brother, Z.S.
S.S. testified to three separate events from
2014. S.S. claimed that, one night, Appellant came
into her bedroom and woke her up. He subsequently
attempted to “force [her] to have sex with him.”[2]
R.C., however, was awake and came into the room
and “caught him.” A second event also happened
earlier in the summer of 2014, when S.S. and
Appellant were sitting on the couch. Appellant
3
“forced [S.S.’s][ ] hand down his pants” and on his
penis. S.S. testified that she never told her aunt and
uncle, M.C. and A.C., Sr., about these incidents
because she felt they would not believe her. S.S.
claimed that on a prior occasion, in the winter, when
she was in fifth grade, Appellant and his brother B.C.
“teamed up” against her and her friend Courtney to
“dry hump” them. S.S. stated she told M.C. about
this incident and M.C. instructed her not to say or do
anything.
S.S. also testified to the events of June 21,
2014. That summer, S.S. worked the Wattsburg Fair
with Larry Wellman. S.S. testified that on one day in
June 2014, Mr. Wellman brought her, Appellant and
Appellant’s brother R.C. to the Wattsburg
2
Brackets within quotation marks in original.
3
Brackets in original.
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Fairgrounds to work on flyers. They arrived between
nine and ten o’clock in the morning. S.S. and the
others joined another lady, whose name S.S. could
not recall,[Footnote 2] in the Wattsburg Fairgrounds
office. The fairgrounds were not open, and the five
of them were the only people there.
[Footnote 2] The other lady was
identified later in the testimony as
Rosella Fenno.
At one point, Larry left to take R.C. home so
that he could join his girlfriend at the races. S.S.
testified that they were the only people at the
Fairgrounds and the other buildings were
abandoned. Shortly after that, S.S. left to go to the
bathroom, which is located in the “Lowe’s building”
fifty to sixty yards away from the office. The “Lowe’s
building” consists of a large open space with a men’s
and women’s bathroom on the far end. The
women’s bathroom consisted of [a] sink to the right
hand side, followed by three regular bathroom stalls
and then one handicapped stall. As S.S. was sitting
in the first bathroom stall, she saw Appellant’s feet
behind the stall doors. She knew they were
Appellant’s feet because of his shoes. After she
finished, she washed and dried her hands. S.S.
testified that Appellant did not say anything to her
during this time, but stood in the doorway.
Subsequently, Appellant refused to let her leave the
bathroom. S.S. testified that he prevented her from
leaving by “stopping [her][4] with his chest.” S.S.
estimated that she is five feet four inches tall and
weighs one hundred and twenty pounds, and that
Appellant is taller and stronger than she is. The
Court took judicial notice that Appellant is
approximately six feet two inches tall.
S.S. told Appellant “Stop” and said “Let me
out.” Instead, Appellant pushed S.S. back toward
the garbage can. He then put his hands on her
shoulder and pushed her into the handicapped stall.
4
Brackets in original.
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Appellant continued and pulled down S.S.’s pants
and underwear together, and his pants and
underwear together. Appellant then “took his leg
and put it behind [S.S.] and took [her] up behind
[her] legs and had his hands on [her] shoulders and
laid [her] on the ground.”[5] S.S. testified that the
bathroom contained [a] cement floor and it was cold.
Appellant held S.S. on the floor by the wrist of her
hands and lay on top of her so that she could not
move. S.S. was laid perpendicular to the toilet
within the stall and she hit her head against the wall.
S.S. testified that she told Appellant to get off, but
did not scream because nobody was around.
Appellant subsequently penetrated S.S.’s vagina with
his penis. S.S. testified that it hurt and she was
crying. S.S. further testified that it was the first time
she had sex. S.S. also testified that Appellant had
placed a yellow grocery bag on his penis and the bag
was already there when he pulled his pants and
underpants down.
S.S. estimated that Appellant continued for
two minutes. Afterward, Appellant did not help S.S.
up and just left her on the ground. S.S. then waited
in the bathroom for Appellant to return to the office.
S.S. testified that she began crying for
approximately five minutes. She subsequently went
back to the office and continued to help with the
flyers. S.S. stated that she was not crying then and
she did not tell anybody what happened. She
testified she was too scared to tell anybody. She sat
at a table diagonally across from Appellant to
continue working on the fliers. They remained at the
office for between five and ten minutes before
Mr. Wellman took them home.
The following day, S.S. told her friend’s
mother, Jaime, what had happened. S.S. testified
she did not tell anyone sooner than that because she
was afraid and did not know what would happen.
5
Brackets within quotation marks in original.
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On cross-examination, S.S. denied that she
fabricated the allegations of rape because she was
made [sic] at how her aunt, M.C., was treating her.
Cross-examination focused on whether S.S. perhaps
fabricated these allegations against Appellant
because his mother, M.C., would not allow S.S. to go
to the movies. In fact, S.S. characterized her
relationship with her aunt as “pretty decent.” S.S.
further denied that she had dating [sic] Appellant’s
half-brother A.C., Jr. Following S.S.’s testimony, the
Court recessed.
On September 1, 2015, the Court reconvened.
Before the presentation of testimony, the parties
stipulated to the admission of Exhibit I. Exhibit I
included the curriculum vitae of two experts,
Micha Wilpula of the Serology Section of the Erie
Regional Laboratory and Dr. Alex Glessner with the
Pennsylvania State Police Forensic DNA Division.
Importantly, Exhibit I also included the reports of
both Ms. Wilpula and Dr. Glessner, which pertained
to a serology and forensic DNA testing, respectively,
of the plastic bag recovered from the girl’s restroom
in the Lowe’s Building and marked as Exhibit E. The
serology report of Ms. Wilpula concluded to a
reasonable degree of scientific certainty a positive
result of p30, which indicated the presence of semen
from a male. Further, the forensic DNA report of
Dr. Glessner returned to a reasonable degree of
scientific certainty a partial DNA profile that matched
the DNA sample of S.S. from the outside of the
plastic bag. However, Dr. Glessner could not
indicate any finding in regard to the semen located in
the plastic bag due to an insufficient quantity of
Y chromosome DNA. Consequently, no comparison
to the known reference of Appellant was attempted.
The stipulation set forth in Exhibit I revealed the
yellow grocery bag had S.S.’s DNA and seminal
material on it, but it did not have enough
Y chromosome to specifically identify Appellant as
the source of the semen.
The Commonwealth called as its next witness
the affiant, Pennsylvania State Trooper Sean Pierce.
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Trooper Pierce testified that he has been stationed at
Erie for twelve years and has been a criminal
investigator for the past six years. He stated that
the alleged incident between Appellant and S.S.
occurred on June 21, 2014 and was reported to
Pennsylvania State Police on either July 2, 2014 or
July 3, 2014.
Subsequently, on July 11, 2014, he attended
an interview between S.S. and Michelle Peterson of
the Child Advocacy Center. The interview took place
solely between S.S. and Ms. Peterson, and
Trooper Pierce observed the interview through closed
circuit television in a separate room. During the
course of the interview, S.S. “identified the location
of where the incident occurred and also made [a]
statement in regards to a trash bag being possibly
used as a [sic] improvised condom.”[6] Immediately
following the interview, Trooper Pierce went to the
Wattsburg Fairgrounds. Trooper Pierce was
introduced to Junior Hartner, the fairground
president, who took him to the Lowe’s building.
Trooper Pierce went into the women’s restroom and
documented the scene with photographs. After
photographing the room, Trooper Pierce began to
search the garbage can and was informed by
Mr. Hartner that each stall had an individual garbage
can for feminine products. Trooper Pierce
subsequently searched each of those and found a
yellow plastic bag within the trash can of the
handicapped stall. Trooper Pierce identified
Commonwealth’s Exhibit K as a torn piece of the
yellow plastic bag which was “identified by [S.S.] as
being used by [Appellant] [as an] improvised
condom.”[7] Trooper Pierce described “what looked
like [] some type of discharge”[8] inside the bag.
6
Brackets within quotation marks in original.
7
Brackets within quotation marks in original.
8
Brackets within quotation marks in original.
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Trooper Pierce acknowledged that in between
June 21, 2014 and July 22, 2014, a wedding had
taken place inside the Lowe’s building on June 28,
2014. Trooper Pierce did not know the number of
people at the wedding, or whether S.S. was in
attendance. He also did not know whether the
garbage [can] had been changed after the wedding,
but believed it had not been based on his
observation that the main trash can was “quite full.”
However, as revealed in Commonwealth’s
[Exhibits] J and K, the yellow shopping bag is the
only item displayed on top of the garbage can in the
handicapped stall, which would indicate that no other
items were discarded in this garbage receptacle
between the incident and the search.
Trooper Pierce further testified that he
interviewed John “Larry” Wellman approximately ten
days later and that he interviewed Rosella Fenno
approximately twenty days later, on August 4, 2014.
The Commonwealth subsequently called [C.T.],
a former neighbor of Appellant and S.S., and who is
eighteen years old. [C.T.] testified that she lived at
[] Hill Road from approximately 2009 to 2012. She
positively identified Appellant on the record as her
former neighbor. [C.T.] testified that, during the
time she lived nearby, she would often go to
Appellant’s home to play with S.S. [C.T.] referred to
a specific incident in the winter of 2009, shortly after
both she moved into the neighborhood and after S.S.
had moved in Appellant’s home. She, S.S. and
Appellant were all eleven years old at the time.
[C.T.] testified that she and S.S. were outside
playing with Appellant when Appellant and his
brother, B.C., began “chasing [her and S.S.] in the
snow and tried to dry hump [them].”[9] [C.T.]
further explained that Appellant and [B.C.] were
“chasing [her and S.S.] and they were trying to
tackle [her and S.S.] to the ground.”[10] She stated
9
Brackets within quotation marks in original.
10
Brackets within quotation marks in original.
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specifically that Appellant was going after S.S.
[C.T.] described that S.S. was on her back, and
Appellant was on top of her thrusting as S.S. tried to
push him off. Everyone was wearing a snowsuit and
a jacket or coat.
[C.T.] stated that S.S. did not cry at all during
this incident. [C.T.] acknowledged that she did not
tell anyone about the incident after it happened.
She explained that she was scared and did not think
anyone would believe her. Following [C.T.’s]
testimony, the Commonwealth rested.
Subsequently, after the Court conducted a
colloquy with Appellant concerning his constitutional
rights, Appellant called as his first witness
John “Larry” Wellman. Mr. Wellman lives [] across
the street from Appellant. He has lived on [that
road] since 1956. He stated he has known Appellant
and his family for six years, since they moved into
the [] residence. He denied knowing Appellant’s
family from the area prior to them moving across the
street. He has served on the Wattsburg Fairgrounds
Board of Directors for seven years.
Mr. Wellman testified that the children typically
help him at the fairground on different occasions.
Specifically, Mr. Wellman would ask Appellant, his
brother R.C., and S.S. to help him. He testified that
he had asked them to help out twice in June of 2014
and perhaps once in May. He testified that the boys
(Appellant and R.C.) had helped him in 2012 and
2013, but S.S.had not.
Mr. Wellman testified that books were printed
for the Wattsburg Fair that had errors, so
Mr. Wellman asked Appellant, S.S., and Appellant’s
brother R.C. to help correct those errors on the
second occasion in June wherein he brought them to
the fairground to help. Mr. Wellman estimated that
there were “thousands” of books to correct.
Mr. Wellman brought Appellant, S.S. and R.C. to the
fairgrounds at about 11:00 a.m. Mr. Wellman left
S.S. with Rosella Fenno in the office to correct the
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books while he, R.C. and Appellant “were doing other
things in the fairgrounds.” Mr. Wellman fed them
lunch at around 1:00 p.m., and then they all
remained in the office correcting the books until
approximately 3:00 p.m. At that time, Mr. Wellman
left to bring R.C. home so that he could go to the
races with his girlfriend. Mr. Wellman explained it
takes about twenty minutes to drive to his house
from the fairgrounds and back.
When he returned, Rosella was the only one in
the office. Approximately, ten to fifteen minutes
later, Appellant and S.S. returned to the office.
Mr. Wellman stated that “there was no emotion on
either one of them that something had happened”
and that they “joked around like [] before in the
office.”[11] He did not notice any indication that S.S.
had been crying. A couple hours later, at “roughly
5:00 p.m.,” Mr. Wellman returned Appellant and S.S.
home where Appellant’s parents were outside with
some of the other children. Mr. Wellman testified
that Appellant and S.S. began kicking a ball around
the yard with other children and he then left.
Mr. Wellman testified that neither S.S. nor
Appellant worked at the fairgrounds again after that
day. Mr. Wellman never stated in his testimony that
Appellant’s brother, R.C., was living with him at the
time. This was later revealed in R.C.’s testimony.
Also, Mr. Wellman stated he only knew Appellant’s
family in a social context over the last six years
through working together at the Wattsburg
Fairgrounds. However, it was also revealed in
testimony that Mr. Wellman knew Appellant’s family
quite extensively for many years and much longer
than the six years testified to by Mr. Wellman.
Appellant next called Rosella Fenno to testify.
Ms. Fenno testified that she knew Appellant and a
“few” of his family members, but she did not “know
them all.” She knew Appellant’s parents. She knew
S.S. from working with her one day. She did not
11
Brackets within quotation marks in original.
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know S.S. and referred to her as “the girl, whatever
her name is.”
She testified that sometime in June, before the
Fair, Mr. Wellman, Appellant, R.C. and “the girl”
were at the office to put corrections in the fair books.
Ms. Fenno stated that they arrived at 8:00 or
9:00 a.m., at the latest before 10:00 a.m. She
explained that Mr. Wellman prepared lunch at the
Lowe’s building, and they left the office to go to the
Lowe’s building to eat around 12:45 to 1:00 p.m.
They subsequently returned to the office and began
working on the books again. Mr. Wellman left at
about quarter to three to three o’clock to take R.C.
home. Ms. Fenno was not sure how long
Mr. Wellman was gone because “he was doing some
things on the grounds before he came back in the
office.”
At one point, Appellant and S.S. left to go to
the restroom. Ms. Fenno stated that they left to go
to the restroom together and that they came back
together. Ms. Fenno could not answer how long they
were gone but stated “It wasn’t extremely long.”
She testified that the demeanor of Appellant and
S.S. was the same as before they left to use the
restroom. She did not see any indication that S.S.
had been crying. She said they “continued with the
job just like [they] did before.”[12] She explained
that they sat in the same seats they had before
lunch, with S.S. sitting across from her and Appellant
standing at the end of the table. They continued to
work in the office together, and Ms. Fenno was home
by 4:00 p.m. She could not say whether she or
Mr. Wellman and the children left first.
On cross-examination, Ms. Fenno explained
that she had known Appellant and his brother for
three or four years. Upon further examination by
the Court, Ms. Fenno further explained that Appellant
and his brothers had worked at the Wattsburg
Fairgrounds for four or five years. She knew
12
Brackets within quotation marks in original.
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Appellant’s parents because his father, A.C., Sr. was
Director of the Fair at one time. She could not recall
which year that was, but acknowledged that
Mr. Wellman would have known A.C., Sr. at that
point. Ms. Fenno actually had been a Director for the
Fair for nine years until the fall of 2014. Ms. Fenno
further testified that she, Mr. Wellman and A.C., Sr.
all served on the Wattsburg Fairgrounds Board of
Directors for a number of years.
Appellant next called his brother, R.C., to
testify. R.C. testified that he lives with Mr. Wellman
and works at his concession stand. R.C. has
volunteered to help with the fair for the past six
years. R.C. did not remember the exact day that he
went to the fairgrounds with Mr. Wellman, Appellant
and S.S. to help fix the books. He did remember
that on that day, they arrived at the fairgrounds
around 11:00 a.m. R.C. helped with “a couple things
around the fairgrounds” before lunch, which occurred
around 1:00 p.m., and then they helped with the
books after lunch. Mr. Wellman subsequently took
him home around 3:00 p.m. so he could go to the
races with his girlfriend. At that time, he was living
with his parents. He later explained that he moved
into Mr. Wellman’s house “shortly after this all
started.” The fact that R.C., the brother of
[Appellant], lived with Mr. Wellman was never
disclosed by Mr. Wellman in his testimony. Clearly,
R.C.’s testimony indicated the close relationship
Appellant’s family had with Mr. Wellman.
R.C. testified that he returned from the races
around 11:00 p.m. He did not remember whether
Appellant and S.S. were still awake at that time.
However, in the days following the assault, R.C.
believed “everything was still as normal,” and he
explained, “I didn’t see any difference in [Appellant
and S.S.] at all.”[13] R.C. denied ever seeing
Appellant go into S.S.’s bedroom or stopping
Appellant from sexually assaulting her as S.S.
previously testified.
13
Brackets within quotation marks in original.
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On cross-examination, R.C. acknowledged that
he would like to have all of his siblings living
together again. However, R.C. stated he would not
want S.S. living with them, “not after what she’s
tried to do to [them].”[14] R.C. further explained
that he had known Mr. Wellman longer than
six years and that his older brother, S.C., used to
work for Mr. Wellman before he did. R.C. also
acknowledged that shortly after the incident, S.S.
began staying at a friend’s house before being
removed from his home. R.C. estimated it was two
weeks before S.S. was removed from the home.
Appellant next called A.C., Jr. to testify.
However, during the course of his testimony,
A.C., Jr. made an apparent potentially
self-incriminating statement. Out of an abundance
of caution and in A.C., Jr.’s interests and to protect
his right against self-incrimination, the Court
informed him of his constitutional rights and
recessed to allow him to seek the advice of counsel
before proceeding [with] the testimony.
Subsequently, when the Court reconvened on
September 3, 2015, Appellant withdrew A.C., Jr. as a
witness and his testimony was struck from the
record.
Appellant next decided to testify, and the Court
found that Appellant knowingly and voluntarily
waived his constitutional right to remain silent and
not testify. Appellant’s parents are A.C., Sr. and
M.C. and he has five brothers: S.C., R.C., B.C.,
A.C. Jr., and J.C. From 2009 to 2014, Appellant also
lived with S.S., her sister C.S., and her brother, Z.S.
Appellant testified that S.S.’s brother, Z.S., was
removed from the home in June of 2014 upon the
request of Appellant’s parents, A.C., Sr. and M.C.
Appellant subsequently testified concerning the
events at the Wattsburg Fairgrounds in June 2014.
Mr. Wellman picked Appellant, S.S. and R.C. up and
14
Brackets within quotation marks in original.
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they arrived at the fairgrounds at approximately
11:00 a.m. They dropped S.S. off at the office and
then moved barrels, chairs and tables. They
subsequently returned to the office to work on the
books. They had lunch around 12:45 p.m., and then
returned to the office to work on the books again.
Mr. Wellman then left to drop R.C. off around
3:00 p.m. S.S. asked Ms. Fenno for permission to
use the restroom, which was granted. Ms. Fenno
then told Appellant “if you need to do it, do it now.”
So, a couple seconds after S.S. left, Appellant left to
go to the restroom too, and, according to his
estimation, S.S. was halfway to the Lowe’s building
when he left the office. He went to the men’s room
while S.S. was in the women’s room. Appellant
stated that he heard Mr. Wellman’s truck and
“finished up.” He knew it was Mr. Wellman’s truck
because he had known Mr. Wellman for most of his
life. When he walked out of the restroom, S.S. was
by the tables where they ate lunch and they returned
to the office together.
Appellant testified that when they returned to
the office, they sat next to each other at the same
side of the table. It was approximately 3:30 p.m.
and they continued to work on the books until
5:00 p.m., when they left. Mr. Wellman took them
home. Appellant stated that his brothers -- S.C.,
J.C. and B.C. -- and two neighbors were playing
soccer in the yard, and that he and S.S. joined them.
Appellant testified that the day following the
incident, S.S. went to a friend’s house. He
characterized her demeanor as “the same as any
other day.”
Appellant denied ever going into the women’s
restroom and denied sexually assaulting S.S. He
denied having a yellow plastic bag and placing it on
his penis as a condom to have sex with S.S. He
stated there was no sexual intercourse between
them, consensual or otherwise. He denied ever
seeing S.S. crying or seeing anything that would
indicate she had been crying after going to the
restroom that day.
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Appellant further denied ever going into S.S.’s
bedroom without authorization. He denied ever
going into S.S.’s room to sexually assault her. He
denied ever jumping on her and trying to “dry hump”
her while outside playing in the snow when he was
twelve.
Appellant further testified that in 2013, when
his brother A.C., Jr. was not living with the family,
A.C., Jr. and S.S. dated. He stated that his parents,
A.C., Sr. and M.C., talked to S.S. about dating
A.C., Jr. and grounded her.
Upon examination by the Court, Appellant
denied any and all sexual contact with S.S. through
the course of his life. Appellant further testified that
S.S. had worked at the Wattsburg Fairground three
times. He stated that he, R.C., Mr. Wellman, and
Ms. Fenno had all worked with S.S. at the
fairgrounds previously.
Appellant also testified that there was another
person walking his dog at the fairgrounds on the day
of the incident. Surprisingly, this was the first time
the identity of any other person (other than those
witnesses previously mentioned) was stated to be at
the Fairgrounds. Appellant stated he did not know
his name but he was walking on the other side of the
track of the fairgrounds. He saw this other person
when he was going to the restroom. He described
the other person as tall, with a beard and walking a
dog. He believed the dog to have been a German
Shepherd. This person was not near the Lowe’s
building and was on the opposite end of the
fairgrounds driveway, walking in the opposite
direction. He said he did not know this other person
and did not go up to him or say anything to him.
Appellant stated the man did not enter the bathroom
and no one else every [sic] came into the Lowe’s
building at the time. He claimed he never saw the
other man again. Appellant did not tell Mr. Wellman
about this other person, but did tell his father.
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Juvenile court opinion, 12/17/15 at 4-17 (citations to delinquency hearing
and exhibits omitted).
The record further reflects that after the Commonwealth filed
allegations of delinquency against appellant, a delinquency hearing was
scheduled before the Honorable Robert A. Sambroak, Jr., for July 20, 2015.
On July 13, 2015, appellant filed a motion for discovery, in which he sought
reports from the Erie County Office of Children and Youth (“OCY”) regarding
inculpatory and/or exculpatory statements made by the victim to social
workers and/or therapists. On July 14, 2015, Judge Sambroak denied the
motion. Thereafter, on July 17, 2015, appellant filed a motion for
Judge Sambroak’s recusal because, among other things, the judge was
assigned to the dependency cases of appellant and three of his brothers, as
well as the dependency cases of the victim and two of her siblings.
Judge Sambroak granted the recusal motion on July 20, 2015. The case was
then reassigned to the Honorable John J. Trucilla, and the delinquency
hearing was rescheduled for August 13, 2015.
The record also reflects that following the juvenile court’s entry of its
dispositional order, appellant filed a timely notice of appeal. The juvenile
court then ordered appellant to file a statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied. Thereafter,
Judge Sambroak filed a supplemental Rule 1925(a) opinion regarding
appellant’s claim that Judge Sambroak erred in denying appellant’s motion
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for discovery. The juvenile court incorporated that opinion into its
Rule 1925(a) opinion.
Appellant raises the following issues for our review:
A. Whether the Honorable Robert A. Sambroak
erred when it denied Appellant’s Motion for
Discovery and thereby ruled that Appellant was
not entitled to a copy of and/or a review of
reports and/or statements made to the Office
of Children & Youth (OCY) by the victim, as
Appellant needed those documents to prepare
a proper cross-examination of the victim
during the trial, and that said ruling violated
Appellant’s rights under the Constitutions of
the United States and the Commonwealth of
Pennsylvania[?]
B. Whether the verdict goes against the
sufficiency of the evidence because (a) the
victim’s immediate post-reaction to the alleged
sexual assault was not an honest and truthful
response to the alleged actions and/or the
victim’s testimony supports the proffered
testimony of the Appellant’s witnesses in that
the victim did not act any differently from her
normal actions; and (b) the victim’s statement
and/or testimony included a statement that the
Appellant used a plastic bag as a condom
because he did not have a condom on his
person denotes a familiarity and/or knowledge
of Appellant’s sexual tendencies when such
familiarity and/or knowledge goes against the
facts of the allegations[?]
C. Whether the verdict goes against the weight of
the evidence because the Commonwealth’s
primary witnesses, the victim and her friend,
contradicted themselves [on] multiple
occasions on factual matters and that those
factual matters were a substantial deviation
from what the Commonwealth alleged
happened, and therefore the Commonwealth
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cannot present any credible witnesses with
actual knowledge and/or information and/or
the Commonwealth cannot meet the beyond a
reasonable doubt burden of proof[?]
D. Whether the [juvenile court] erred at time of
trial by not allowing any testimony from the
Appellant and/or other witnesses that would
have allowed the [juvenile] court to hear
Res Gestae evidence germane to the
Appellant’s background and/or character
and/or germane to the relationship between
the Appellant and the victim[?]
E. Whether the [juvenile court] erred at time of
trial by not allowing the Appellant to present a
closing statement prior [to] the [juvenile]
court’s ruling as the trial involved a
complicated and/or sensitive fact pattern
and/or approximately seven (7) witnesses over
a three (3) day period[?]
F. Whether the [juvenile court] erred at time of
trial when the [juvenile] court ruled that all of
Appellant’s witnesses, including Appellant,
were not credible in toto despite the strong
similarities between the testimonies of the
victim and Appellant’s witnesses and/or the
lack of any motivation and/or other reason to
provide untruthful testimony before the
[juvenile] court[?]
Appellant’s brief at 3-4.
“The Juvenile Act grants juvenile courts broad discretion when
determining an appropriate disposition. . . . We will disturb a juvenile
court's disposition only upon a showing of a manifest abuse of discretion.”
Interest of C.A.G., 89 A.3d 704, 709 (Pa.Super. 2014) (citations omitted).
Our supreme court has held that an adjudication of delinquency requires
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both findings “(1) that the juvenile has committed a delinquent act; and
(2) that the juvenile is in need of treatment, supervision, or rehabilitation.”
Commonwealth v. M.W., 39 A.3d 958, 959 (Pa. 2012),
In his first issue, appellant complains that Judge Sambroak erred in
denying appellant’s motion for discovery of reports and/or statements that
the victim made to OCY because appellant needed those documents to
prepare a proper cross-examination of the victim. (Appellant’s brief at 8.)
In denying appellant’s discovery motion, Judge Sambroak first
determined that the records appellant sought constituted confidential reports
pursuant to 23 Pa.C.S.A. § 6340. Appellant does not dispute that
determination, but claims that he had “anticipated that [Judge Sambroak]
would have conducted an en [sic] camera, pursuant [to] [Section] 6340,
which proves [sic] in part that specific, confidential reports regarding alleged
incidents of child abuse or sexual abuse ‘shall only be made available to,
among others, “a court of competent jurisdiction.”’” (Appellant’s brief at
10.) Judge Sambroak, however, did not conduct an in camera review.
Rather, Judge Sambroak denied appellant’s request as untimely and deemed
it “as a last minute attempt to delay the denial[15] hearing.” (Supplemental
Rule 1925(a) opinion, 11/23/15 at 2-3.) Judge Sambroak also noted that
because appellant knew that the documents existed from the inception of
15
Erie County trial courts oftentimes refer to a delinquency hearing as a
denial hearing.
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the dependency case, appellant could have sought discovery at an earlier
date. (Id. at 3.)
Regarding the relevant timeline, the record reflects that appellant was
charged with seven allegations of delinquency on January 27, 2015, and his
adjudicatory hearing was scheduled for July 20, 2015. In his brief to this
court, appellant’s counsel states that he met appellant for the first time at
appellant’s status conference on April 10, 2015. (Appellant’s brief at 8.) On
July 13, 2015, which was three months after the status conference and one
week prior to the scheduled delinquency hearing, appellant filed his motion
for discovery. Judge Sambroak denied the discovery motion, without an
opinion, by order docketed July 14, 2015. On July 17, 2015, appellant then
moved for Judge Sambroak’s recusal, and Judge Sambroak recused himself
on July 20, 2015. Appellant’s adjudication was then transferred to
Judge Trucilla and appellant’s delinquency hearing was rescheduled for
August 13, 2015. We note that despite Judge Sambroak’s grant of
appellant’s motion for recusal, appellant did not file any discovery motions
with Judge Trucilla, who was reassigned to appellant’s adjudication.
In his brief, appellant offers no explanation as to why he filed his
discovery motion a week before the scheduled delinquency hearing that was
to take place before Judge Sambroak. Rather, appellant relies on
Pa.R.J.C.P. 347(a) to justify the timing of his filing of that motion.
Rule 347(a) provides that an “omnibus motion shall be made as soon as
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practical but can be made at any time prior to the calling of the first witness
at the adjudicatory hearing.” Appellant, however, filed a discovery motion.
Pa.R.J.C.P. 340(a) governs pre-adjudicatory discovery and provides that a
discovery motion “shall be made as soon as possible prior to the
adjudicatory hearing.” Here, Judge Sambroak denied the motion after
finding it untimely, as well as a last-minute attempt to delay the hearing.
Judge Sambroak further noted that appellant could have sought discovery at
an earlier date. Appellant fails to demonstrate otherwise. As such, we find
no abuse of discretion.
In his second complaint, appellant attempts to raise a sufficiency of
the evidence claim by challenging the testimony regarding the victim’s
reaction after the assault, as well as her knowledge of the purpose of a
condom. (Appellant’s brief at 21-25.) It is well settled that when
challenging the sufficiency of the evidence on appeal, that in order to
preserve that issue for appeal, an appellant’s Rule 1925(b) statement must
specify the element or elements upon which the evidence was insufficient.
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009), appeal
denied, 3 A.3d 670 (Pa. 2010) (citation and internal quotation marks
omitted); see also In re J.G., 145 A.3d 1179, 1189 (Pa.Super. 2016).
Here, in his Rule 1925(b) statement, appellant frames his sufficiency
challenge in the identical manner that he frames his sufficiency claim in his
appellate brief. (Concise statement of matters complained of on appeal,
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11/12/15 at 2, ¶ 2.) Appellant’s sufficiency claim as set forth in his
Rule 1925(b) statement fails to identify which element or elements of any of
the crimes of which he was adjudicated delinquent were insufficient.
Additionally, although appellant attempts to challenge the sufficiency of the
evidence, he does nothing more than raise a weight of the evidence
challenge because his argument attacks the victim’s reliability. Therefore,
appellant’s complaint goes to the weight of the evidence, not its sufficiency.
See Commonwealth v. Wilson, 825 A.2d 710, 713-714 (Pa.Super. 2003)
(a review of the sufficiency of the evidence does not include a credibility
assessment; such a claim goes to the weight of the evidence);
Commonwealth v. Gaskins, 692 A.2d 224, 227 (Pa.Super. 1997) (the
fact-finder makes credibility determinations, and challenges to those
determinations go to the weight of the evidence, not the sufficiency of the
evidence).
Appellant also challenges the weight of the evidence in his third issue,
claiming that the “Commonwealth’s primary witnesses, the victim and her
friend, contradicted themselves” and that the Commonwealth was unable to
present any credible witnesses. (Appellant’s brief at 3, 21-26.) In his sixth
issue, appellant challenges all of the juvenile court’s credibility
determinations. (Id. at 26-32.) We will, therefore, address the weight
challenges that appellant presents in his second, third, and sixth claims
together.
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This [c]ourt applies the same standard for reviewing
weight of the evidence claims in juvenile cases as
those involving adults. In re R.N., 951 A.2d 363,
370 (Pa.Super.2008), called into question on other
grounds, In re J.B., 630 Pa. 124, 106 A.3d 76
(2014). An allegation that the verdict is against the
weight of the evidence is addressed to the discretion
of the trial court. Commonwealth v. Ramtahal,
613 Pa. 316, 33 A.3d 602 (2011). “An appellate
court, therefore, reviews the exercise of discretion,
not the underlying question whether the verdict is
against the weight of the evidence.” Id., 613 Pa. at
327-28, 33 A.3d at 609. Moreover, a court's denial
of a motion for a new trial based upon a weight of
the evidence claim is the least assailable of its
rulings. Commonwealth v. Rivera, 603 Pa. 340,
363, 983 A.2d 1211, 1225 (2009).
While the comment to Pa.R.Crim.P. 607(A) specifies
that weight of the evidence claims in criminal
proceedings are waived unless they are raised with
the trial court in a motion for a new trial, “the
Pennsylvania Rules of Juvenile Procedure have no
counterpart requiring the same manner of
preservation.” In re J.B., 630 Pa. 124, 149, 106
A.3d 76, 91 (2014). Indeed, “the current Rules of
Juvenile Court Procedure—which ‘govern delinquency
proceedings in all courts'—are utterly silent as to
how a weight of the evidence claim must be
presented to the juvenile court so that it may rule on
the claim in the first instance, which is . . . a
necessary prerequisite for appellate review.” Id.,
630 Pa. at 160, 106 A.3d at 98 (footnote omitted).
Pa.R.J.C.P. 620(A)(2) governs the filing of what it
expressly designates as an “optional post-
dispositional motion.” See Pa.R.J.C.P. 620(A)(2)
(“Issues raised before or during the adjudicatory
hearing shall be deemed preserved for appeal
whether or not the party elects to file a post-
dispositional motion on those issues”).
In re J.G., 145 A.3d at 1187.
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Here, appellant did not file an optional post-dispositional motion
pursuant to Pa.R.J.C.P. 620 alleging that the verdict was against the weight
of the evidence, and he failed to raise such a challenge prior to the juvenile
court’s entry of its dispositional order. Appellant presented his weight of the
evidence claims for the first time in his Pa.R.A.P. 1925(b) statement. The
juvenile court, however, considered the merits of appellant’s weight
challenges in its Pa.R.A.P. 1925(a) opinion. (Juvenile court opinion,
12/17/15 at 5-6.) We will, therefore, address appellant’s weight claims on
the merits.
Appellant’s challenges to the weight of the evidence do nothing more
than invite this court to assess witness credibility and reweigh the evidence.
Appellant maintains that the Commonwealth witnesses were unreliable and
that appellant and his witnesses were reliable. Appellant dedicates 12 pages
of his brief reiterating testimony and attempting to point out inconsistencies
in the testimony of the Commonwealth witnesses and consistencies in the
testimony of appellant and his witnesses. (Appellant’s brief at 21-32.) The
juvenile court, however, as fact-finder, had the duty to determine the
credibility of the testimony and evidence presented at the adjudication. See
Commonwealth v. Talbert, 129 A.3d 536, 546 (Pa.Super. 2013).
Here, the juvenile court concluded, as it was free to do, that “the
Commonwealth’s witnesses, particularly [the victim,] [were] fully credible”
and that the collective testimony of appellant’s witnesses “had an almost
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rehearsed ring to it” in that they “testified in the same minimizing and
protective way for [a]ppellant.” (Juvenile court opinion, 12/17/15 at 30-31.)
Our review of the record supports the conclusion that the evidence resulting
in appellant’s adjudications of delinquency was not so tenuous, vague, and
uncertain so as to shock the conscience of the court. See Talbert, 129 A.3d
at 546 (restating the rule of law that “[i]n order for a defendant to prevail on
a challenge to the weight of the evidence, ‘the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the court.”).
Therefore, the juvenile court properly exercised its discretion, and
appellant’s challenges to the weight of the evidence necessarily fail.
Appellant next complains that the “[juvenile] court could have or
should have allowed Res Gestae evidence during the denial hearing” “with
regards to cross[-]examination of the [v]ictim.” (Appellant’s brief at 32.)
The crux of appellant’s six-sentence argument on this issue is that he was
unable to effectively cross-examine the victim because Judge Sambroak
denied his discovery motion. Indeed, appellant maintains that “[a]s this
issue closely relates to [a]ppellant’s issue regarding the Motion for
Discovery, [a]ppellant hereby incorporates that argument as if restated in
full.” (Id. at 33.) We addressed appellant’s meritless claim concerning
Judge Sambroak’s denial of appellant’s discovery motion in issue one, and
we will not reiterate it here.
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Appellant finally complains that “the [juvenile] court could have or
should have allowed [a]ppellant to present a closing statement.” (Id.) The
record reflects that appellant did not request the opportunity to make a
closing statement before or during the adjudicatory hearing.16 The record
further reflects that appellant did not file a post-dispositional motion.17
Therefore, because appellant raises this issue for the first time on appeal, it
is deemed waived. See Pa.R.A.P. 302(a) (“[i]ssues not raised in the lower
court are waived and cannot be raised for the first time on appeal.”).
Dispositional order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2016
16
The Rules of Juvenile Court Procedure do not provide the parties with the
right to make a closing statement in an adjudicatory proceeding. See
Pa.R.J.C.P. 406(A) (requiring the court to “conduct the adjudicatory hearing
without a jury, in an informal but orderly manner”).
17
Pa.R.J.C.P. 620(A)(1) affords the parties the right to make a
post-dispositional motion. Pa.R.J.C.P. 620(A)(2) provides that “[i]ssues
raised before or during the adjudicatory hearing shall be deemed preserved
for appeal whether or not the party elects to file a post-dispositional motion
on those issues.”
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In Re: B.A.C., Appeal of B.A.C., a minor
Combined Opinion