J-S27009-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: R.S.A., A : IN THE SUPERIOR COURT OF
MINOR : PENNSYLVANIA
:
:
APPEAL OF: R.S.A., A MINOR : No. 3114 EDA 2015
Appeal from the Dispositional Order September 18, 2015
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-1000068-2015
BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 02, 2017
Appellant, R.S.A., a minor, appeals from the dispositional order
entered in the Philadelphia County Court of Common Pleas, Juvenile
Division, following his adjudications of delinquency for involuntary deviate
sexual intercourse with a child (“IDSI”), sexual assault, and indecent
assault.1 We remand for further proceedings.
In its opinion filed May 13, 2016, the Juvenile court accurately set
forth the relevant facts and procedural history of this case.2 Therefore, we
have no reason to restate them.
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1
18 Pa.C.S.A. §§ 3123(b); 3124.1; 3126(a)(7), respectively.
2
On September 18, 2015, the court adjudicated Appellant delinquent and
placed him on probation until further order of court. Additionally, the court
ordered Appellant to attend DelStar (an outpatient program for adolescents
who are adjudicated of a sexual offense), to undergo random drug screens,
(Footnote Continued Next Page)
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*Retired Senior Judge assigned to the Superior Court.
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Appellant raises the following issues for our review:
WAS NOT THE EVIDENCE INSUFFICIENT FOR AN
ADJUDICATION OF DELINQUENCY ON ALL CHARGES,
INSOFAR AS THE EVIDENCE OF [APPELLANT’S] GUILT
WAS SO UNRELIABLE AND CONTRADICTORY THAT IT WAS
INCAPABLE OF SUPPORTING A DETERMINATION OF GUILT
BEYOND A REASONABLE DOUBT?
IN THE ALTERNATIVE, WAS NOT THE DETERMINATION OF
GUILT AGAINST THE WEIGHT OF THE EVIDENCE TO SUCH
A DEGREE AS TO SHOCK THE CONSCIENCE?
(Appellant’s Brief at 4).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Arthur E.
Grim, we conclude Appellant’s first issue merits no relief. The Juvenile court
opinion comprehensively discusses and properly disposes of that question.
(See Juvenile Court Opinion, filed May 13, 2016, at 8-9) (finding: thirteen-
year-old Appellant deceived seven-year-old Victim by luring her into
bathroom under false pretenses during another child’s birthday party;
Appellant told Victim to close her eyes and open her mouth so Appellant
could give Victim gum; after Victim complied, Appellant put his penis in
Victim’s mouth; Victim saw Appellant’s penis when she blinked her eyes;
Victim identified Appellant in court as her assailant; age of Victim as well as
circumstances of case precluded consent; Victim’s testimony was very
_______________________
(Footnote Continued)
to have no unsupervised contact with children under twelve years old, and to
be subject to a curfew.
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credible; any contradiction in record is result of young Victim not initially
knowing proper name for penis; Victim was clear throughout her testimony
which part of Appellant’s anatomy was involved in assault; Victim’s
testimony was consistent with her earlier statements to her teacher,
guidance counselor, and mother; Commonwealth presented sufficient
evidence to sustain Appellant’s adjudications of delinquency for IDSI with
child, sexual assault, and indecent assault). Therefore, we conclude
Appellant’s first issue is meritless.
Regarding Appellant’s second issue challenging the weight of the
evidence, we observe that generally, a weight claim must be preserved by a
motion for a new trial. See Pa.R.Crim.P. 607 and Comment (stating: “The
purpose of this rule is to make it clear that a challenge to the weight of the
evidence must be raised with the trial judge or it will be waived”).
By contrast, the Rules of Juvenile Court Procedure governing
delinquency matters “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.” In re J.B., 630 Pa. 124, 160, 106 A.3d 76, 98 (2014).
Specifically, Pennsylvania Rule of Juvenile Court Procedure 620 provides, in
pertinent part:
Rule 620. Post-Dispositional Motions
A. Optional Post-Dispositional Motion.
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(1) The parties shall have the right to make a post-
dispositional motion. All requests for relief from the court
shall be stated with specificity and particularity, and shall
be consolidated in the post-dispositional motion.
(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.
Pa.R.J.C.P. 620(A). Thus, juveniles in delinquency matters face “procedural
rules [which make] optional the filing of a post-dispositional motion, and
which [do] not otherwise specify how a weight of the evidence claim [is] to
be presented in the first instance to the juvenile court in order to preserve it
for appellate review.”3 J.B., supra at 160-61, 106 A.3d at 98.
Consequently, the failure to preserve a weight-of-the-evidence challenge in
a post-dispositional motion does not result in automatic waiver of the claim
on appeal in juvenile delinquency matters. See id. (holding juvenile did not
waive challenge to weight of evidence where he failed to raise that claim in
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3
Rule 620(A)(2) does not aid a juvenile in preserving a challenge to the
weight of the evidence because the juvenile cannot raise a weight claim until
after the adjudication of delinquency. J.B., supra at 156-57, 106 A.3d at
95-96 (explaining juvenile could not raise weight of evidence challenge in his
closing argument as it is matter of plain logic that claim that adjudication of
delinquency is against weight of evidence presupposes court has already
made final adjudication; closing arguments take place prior to final
adjudication and are geared toward convincing trier of fact that evidence
adduced at hearing failed to prove juvenile was delinquent of offenses
charged; compare weight of evidence challenge, which assumes evidence
was sufficient to adjudicate juvenile delinquent but requests court to
reassess its adjudication to determine whether certain facts of record are so
weighty that they warrant grant of new adjudicatory hearing).
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optional post-dispositional motion; finding of waiver in juvenile proceedings
has harsher consequences for juvenile than for similarly-situated criminal
defendant because juvenile cannot raise ineffective assistance of counsel for
waiver of weight claim under Post Conviction Relief Act (“PCRA”), as PCRA
does not apply to juvenile proceedings; absent this avenue of collateral relief
there is stronger reason to decline to impose waiver for non-preservation of
weight claim; although juvenile raised challenge to weight of evidence in
Rule 1925(b) statement, and court addressed issue in its Rule 1925(a)
opinion, that fact does not cure deficiency as there likely will be times, under
similar circumstances, where court will either review weight challenge in its
Rule 1925(a) opinion in cursory fashion or fail to address claim at all;
principles of fundamental justice and sound reason necessitate remand for
filing of post-dispositional motion nunc pro tunc to raise weight of evidence
claim). See also Interest of J.G., 145 A.3d 1179 (Pa.Super. 2016)
(declining to waive weight challenge where juvenile did not file post-
dispositional motion and presented weight of evidence claim for first time in
Rule 1925(b) statement; under In re J.B., Court held remand was
necessary to permit juvenile to file post-dispositional motion nunc pro tunc
challenging weight of evidence).
Instantly, Appellant did not file a post-dispositional motion. Like the
cases of In re J.B. and Interest of J.G., Appellant raised his challenge to
the weight of the evidence for the first time in his Rule 1925(b) statement.
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The Juvenile court addressed Appellant’s weight claim in in its Rule 1925(a)
opinion in a cursory fashion after a detailed analysis concerning Appellant’s
challenge to the sufficiency of the evidence. Following prevailing precedent,
we will now remand the case to give Appellant the opportunity to file a post-
dispositional motion nunc pro tunc challenging the weight of the evidence.
See In re J.B., supra; Interest of J.G., supra. Accordingly, we conclude
the evidence presented in this case was sufficient to sustain the delinquency
adjudication, but we remand for further proceedings limited to Appellant’s
challenge to the weight of the evidence.
Case remanded for further proceedings. Jurisdiction is relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/2/2017
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In the Interest of: R.S.A., a Minor
Combined Opinion