J-A19028-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: S.P., A : IN THE SUPERIOR COURT OF
JUVENILE : PENNSYLVANIA
:
:
APPEAL OF: S.P., A JUVENILE :
:
:
:
: No. 2508 EDA 2016
Appeal from the Order July 6, 2016
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-JV-0000439-2016
BEFORE: BENDER, P.J.E., DUBOW, J., and MUSMANNO, J.
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 21, 2017
Appellant, S.P., appeals from the July 6, 2016 Order of Disposition
entered in the Court of Common Pleas of Montgomery County, which
ordered Appellant to serve a period of probation after being adjudicated
delinquent for Involuntary Deviate Sexual Intercourse, Indecent Assault, and
Indecent Exposure.1 After careful review, we remand with instructions.
A detailed recitation of the facts is unnecessary to our disposition. In
sum, on May 13, 2016, 15-year-old Victim and her friend, E.H., met 16-
year-old Appellant at a park around 11:00 P.M. to smoke marijuana. When
Victim was leaving, Appellant requested payment in the form of money or
sex. When Victim refused, Appellant instructed E.H. to leave them alone.
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18 Pa.C.S. § 3123(a)(1); 18 Pa.C.S. § 3126(a)(2); and 18 Pa.C.S. §
3127(a), respectively.
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Once E.H. walked away, Appellant proceeded to forcefully touch
Victim’s buttocks, put his hand inside Victim’s leggings, and rub Victim’s
vaginal area over her underwear. Appellant exposed his penis, grabbed the
back of Victim’s neck, and said “give me a quick bop,” which is slang for oral
sex. Victim repeatedly refused Appellant’s advances, told Appellant to get
off her, and pushed Appellant away. E.H. returned and Victim and E.H. left
the park.
Later that evening, Appellant sent Victim a Snapchat message
referencing their encounter. Victim took a picture of the Snapchat message
using her cell phone (“screen shot”), which the Commonwealth entered into
evidence during the adjudicatory hearing without objection.
On June 17, 2016, after an adjudicatory hearing, the juvenile court
adjudicated Appellant delinquent. On July 6, 2016, the juvenile court held a
dispositional hearing and placed Appellant on probation until further order of
the court. Appellant did not file a post-dispositional motion pursuant to
Pa.R.J.C.P. 620. Appellant timely appealed. Both Appellant and the juvenile
court complied with Pa.R.A.P. 1925.
Appellant raises the following issues on appeal:
1. Was the evidence insufficient to find that [Appellant]
committed the crimes of [18 Pa.C.S. § 3123]: Involuntary
Deviate Sexual Intercourse, Forcible Compulsion, F-1, [18
Pa.C.S. § 3126]: Indecent Assault, Forcible Compulsion, M-1,
and [18 Pa.C.S. § 3127]: Indecent Exposure, M-2?
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2. Did the evidence establish that Commonwealth Exhibit C-5, a
[Snapchat] screen shot, was written by [Appellant] and/or
forwarded by [Appellant] to [Victim]?
3. Did the [juvenile court] give undue weight to Commonwealth
Exhibit C-5, a [Snapchat] screen shot, that was entered into
evidence without being properly authenticated by the
prosecution?
4. Was Commonwealth Exhibit C-5, a [Snapchat] screen shot,
altered and changed by [Victim] diminishing the relevance
and weight of the evidence?
5. Does the surveillance video marked as Commonwealth Exhibit
8 reveal that no assault occurred in the park?
6. Did the [juvenile court] abuse its discretion by ignoring the
evidence of the surveillance video marked as Commonwealth
Exhibit 8 giving the time of the alleged assault and Defense
Exhibit 1, the discovery compact disc containing the times of
the text messages between [Victim] and her mother
indicating that the victim was texting her mother at the time
of the alleged assault?
7. Did the [juvenile court] abuse its discretion by not giving
[Appellant]’s character evidence sufficient weight?
Appellant’s Brief at 4-5 (reordered for ease of disposition).
Our standard of review of dispositional orders in juvenile proceedings
is well settled. The Juvenile Act grants broad discretion to juvenile courts
when determining an appropriate disposition. In re C.A.G., 89 A.3d 704,
709 (Pa. Super. 2014). We will not disturb the juvenile court’s disposition
absent a manifest abuse of discretion. In Interest of J.G., 145 A.3d 1179,
1184 (Pa. Super. 2016).
Appellant first challenges the sufficiency of the evidence, averring that
the evidence was insufficient to support Appellant’s adjudication of
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delinquency for Involuntary Deviate Sexual Intercourse, Indecent Assault,
and Indecent Exposure. Appellant’s Brief at 4. We find this issue to be
waived.
Pennsylvania Rule of Appellate Procedure 1925(b) provides, inter alia,
that, in a statement of matters complained of on appeal, an appellant “shall
concisely identify each ruling or error that the appellant intends to challenge
with sufficient detail to identify all pertinent issues for the judge[,]” and
issues that are not properly raised are deemed waived. Pa.R.A.P.
1925(b)(4). This Court has repeatedly stated, “[i]n order to preserve a
challenge to the sufficiency of the evidence on appeal, an appellant's Rule
1925(b) statement must state with specificity the element or elements [of
the challenged offense] upon which the appellant alleges that the evidence
was insufficient.” In Interest of J.G., supra at 1189 (citation and
quotation omitted). Such specificity is of particular importance in cases
where an appellant is convicted of multiple crimes and each crime contains
numerous elements that the Commonwealth must prove beyond a
reasonable doubt. Id.
Appellant was adjudicated delinquent for three separate crimes, each
of which contained numerous elements. In his Rule 1925(b) Statement,
Appellant presented his challenge to the sufficiency of the evidence as
follows:
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Was the evidence insufficient to find that [Appellant] committed
the crimes of [18 Pa.C.S. § 3123]: Involuntary Deviate Sexual
Intercourse, Forcible Compulsion, F-1, [18 Pa.C.S. § 3126]:
Indecent Assault, Forcible Compulsion, M-1, and [18 Pa.C.S. §
3127]: Indecent Exposure, M-2?
Appellant’s Statement of Matters Complained of on Appeal, filed 9/29/16, at
¶1. Appellant utterly failed to specify which elements of which crimes he is
challenging for lack of sufficient evidence. We conclude Appellant has, thus,
waived this issue. See In Interest of J.G., supra.2
Appellant next challenges the authenticity of the Snapchat screen shot
that the Commonwealth introduced and entered into evidence as
Commonwealth Exhibit C-5. He contends that the Commonwealth failed to
establish that the screen shot “was written by the [Appellant] and/or
forwarded by [Appellant] to [Victim].” Appellant’s Brief at 4. A review of
the record reveals that Appellant did not object to the screen shot’s
authenticity or introduction into evidence during the adjudicatory hearing.
Accordingly, Appellant has failed to preserve this issue for appeal, and, thus,
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Likewise, Appellant fails to develop this issue properly in his Brief by again
failing to specify which elements of which crimes he is challenging for lack of
sufficient evidence. Accordingly, even if preserved, this claim is waived for
lack of development. See Pa.R.A.P. 2119(a)-(b) (requiring a properly
developed argument for each question presented including a discussion of
and citation to authorities in appellate brief); Commonwealth v.
Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super. 2014) (en banc) (stating
failure to conform to the Rules of Appellate Procedure results in waiver of
the underlying issue).
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it is waived. See Pa.R.A.P. 302 (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal.”).
Appellant’s next five issues all challenge the weight of the evidence.
Generally, a weight of evidence claim is “addressed to the discretion of the
judge who actually presided at trial.” In re J.B., 106 A.3d 76, 95 (Pa.
2014) (citations and quotation omitted). Once a trial court rules on a weight
claim, this Court can then review the trial court’s ruling for an abuse of
discretion. Id.
Appellant did not raise his weight challenges in a post-dispositional
motion pursuant to Pa.R.J.C.P. 620.3 Rather, Appellant raised these
challenges for the first time in his Rule 1925(b) Statement. Although the
juvenile court addressed the challenges in its Rule 1925(a) Opinion, our
precedential case law requires that we remand the case to give Appellant the
opportunity to file a post-dispositional motion nunc pro tunc challenging the
weight of the evidence so that the juvenile court can render a specific ruling.
The Pennsylvania Supreme Court recently determined that in juvenile
delinquency matters, unlike in adult criminal cases, the failure to preserve a
weight of the evidence challenge in a post-dispositional motion does not
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Rule 620(A), entitled “Optional Post-Dispositional Motion[,]” gives parties
the right to make a post-dispositional motion and states, inter alia, 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.” Pa.R.J.C.P. 620(A).
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result in automatic waiver of the claim on appeal. In re J.B., supra, at 98.
Like Appellant here, the juvenile defendant in In re J.B., did not file a post-
dispositional motion, but raised a challenge to the weight of evidence in his
Rule 1925(b) Statement, which prompted the trial court to address the issue
in its Rule 1925(a) Opinion. Id. at 89-90. In concluding that the issue had
not been waived, our Supreme Court specifically recognized that a finding of
waiver in juvenile proceedings has a harsher consequence for a juvenile than
a similarly situated adult criminal defendant. The Court noted that a
juvenile cannot raise such a challenge under the Post-Conviction Relief Act,
and “the absence of that avenue of collateral relief for [a juvenile appellant]
provides a stronger reason to decline to impose waiver[.]” In re J.B.,
supra at 98. The Court then concluded that the appropriate remedy is to
remand the case to the juvenile court for the filing of a post-dispositional
motion nunc pro tunc challenging the weight upon which the court could
then make a specific ruling. Id.
Like the juvenile appellant in In re J.B., Appellant here raised his
challenge to the weight of the evidence for the first time in his Rule 1925(b)
Statement. Although the juvenile court addressed the weight of the
evidence challenge in its Rule 1925(a) Opinion, In re J.B. requires that we
remand the case to give Appellant the opportunity to file a post-dispositional
motion nunc pro tunc challenging the weight of the evidence. See also
Interest of J.G., supra at 1187-88 (following In re J.B. and remanding to
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permit the juvenile to file a post-dispositional motion nunc pro tunc
challenging the weight of evidence).
In sum, we conclude that Appellant waived his challenges to the
sufficiency of the evidence and the authenticity of the Snapchat screen shot.
We remand for further proceedings limited to Appellant’s challenge to the
weight of the evidence.
Case remanded for further proceedings. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/21/2017
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