J-S48027-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: J.S., A JUVENILE : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: J.S., A JUVENILE :
:
:
:
:
: No. 3544 EDA 2017
Appeal from the Dispositional Order June 5, 2017
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-JV-0000055-2017
BEFORE: DUBOW, J., MURRAY, J., and PLATT*, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 30, 2018
J.S. (Appellant) appeals from the dispositional order of the Juvenile
Court entered after it adjudicated him delinquent of indecent assault for
having “indecent contact with the complainant . . . without the complainant’s
consent.”1 We affirm.
The Juvenile Court provided the following summary of the facts adduced
at the hearing:
[O]n January 25, 2017, [Appellant] and three juvenile females
(M.V., [the complainant], and I.C.) were together in the basement
of juvenile, M.V.’s, home. N.T., 4/10/17 at 8-9, 11. The juvenile
females began drinking vodka. Id. at 12, 64-65, 184-85.
[Appellant] was not drinking. Id. at 65. [Appellant], M.V., and
[the complainant] kissed each other. Id. at 14, 31, 69-70, 86,
185-86, 188. Thereafter, [the complainant] laid down. Id. at 71.
M.V. testified that [the complainant] was not moving, speaking,
and her eyes were closed. Id. M.V. observed [Appellant] pull [the
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1 18 Pa.C.S.A. § 3126(a)(1).
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* Retired Senior Judge assigned to the Superior Court.
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complainant’s] pants down and have sexual intercourse with her.
Id. at 71-72. M.V. filmed the interaction and the video was played
for the Court. Id. at 73. M.V. also testified that she heard [the
complainant] say “stop, [Appellant], that hurts.” Id. at 81. M.V.
testified that after the sexual contact between [Appellant] and
[the complainant], [the complainant] was not awake or conscious.
Id. at 104. Immediately following her observation, M.V.
characterized [Appellant’s] action as rape. Id. at 133, 143. The
following day, [the complainant] did not have any recollection of
having intercourse with [Appellant]. Id. at 17-19, 56. [The
complainant] learned about the video of the incident, and she and
her mother reported it to the police. Id. at 20-22, 167.
Juvenile Court Opinion, 2/6/18, at 2-3.
After being contacted by the complainant and her mother, the police
filed a delinquency petition. Thereafter:
On April 10, 2017, after a full contested hearing, [the
Juvenile Court] adjudicated [Appellant] delinquent on the charge
of Indecent Assault as a misdemeanor of the second degree. On
June 5, 2017, a dispositional hearing was held . . . at which time
[Appellant] was placed on probation and also placed with
Safeguards Specialized Foster Care. On June 15, 2017,
Appellant’s counsel filed a Post-Dispositional Motion in this matter.
However, the Motion was never forwarded to [the Juvenile Court],
and the Court was unaware of the filing until September 18, 2017.
Thereafter, on September 19, 2017, [the Juvenile Court] filed an
Order denying the Motion by operation of law, pursuant to
Pa.R.J.C.P. 620(D)(1). The instant appeal followed.
Juvenile Court Opinion, 2/6/18, at 1. The Juvenile Court and Appellant have
complied with Pa.R.A.P. 1925. On appeal, Appellant presents the following
two issues:
1. Whether the evidence was sufficient to support a
finding on the offense of Indecent Assault under § 3126(a)(1) in
that the evidence did not establish lack of consent?
2. Whether the lower court erred in considering the
offense of Indecent Assault under § 3126(a)(1) as such offense
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was not included among the original charges in violation of due
process?
Appellant’s Brief at 5.
Appellant’s issues are related. We begin our analysis with Appellant’s
second issue, in which he claims that he was improperly adjudicated of
indecent assault under § 3126(a)(1) because “such offense was not included
among the original charges in violation of due process,” and “not included in
the written allegation or in the later amended Petition.” Appellant’s Brief at
10. Pertinently, the statute reads:
A person is guilty of indecent assault if the person has indecent
contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine or feces
for the purpose of arousing sexual desire in the person or the
complainant and:
(1) the person does so without the complainant’s consent ...
18 Pa.C.S.A. § 3126(a) (emphasis added).
Appellant claims he was prepared to defend only against the charge of
§ 3126(a)(4), where “the complainant is unconscious or the person knows
that the complainant is unaware that the indecent contact is occurring.”
(Emphasis added). Appellant asserts that he “prepared his defense based
upon the charges set forth in the Petition,” and “successfully defended on the
charges for which he was put on notice,” i.e., the “alleged unconscious state
of the complainant.” Appellant’s Brief at 10, 16-17 (emphasis added). He
emphasizes that the complainant indicated that she did not remember what
happened, and the Commonwealth did not present any evidence that the
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complainant “affirmatively withheld consent.” Id. at 16-17. In making this
argument, Appellant references “an element of surprise prejudicial to efforts
to prepare a defense,” and contends that his due process rights were violated.
Id. at 15.
Preliminarily, we note that our review of the record does not support
Appellant’s contention that he “successfully defended against the charges for
which he was put on notice.” The Juvenile Court, as the fact-finder, expressly
determined that the complainant “was not fully conscious/not in a condition
to consent to the sexual contact.” Juvenile Court Opinion, 2/6/18, at 3.
Also, while Appellant was originally charged with, inter alia, indecent
assault under Section 3126(a)(4), which relates to a victim who is unconscious
or unaware of indecent contact occurring, and the Juvenile Court adjudicated
Appellant delinquent of Section 3126(a)(1), relating to indecent contact
without the victim’s consent, as noted by the Commonwealth, “[t]here was no
variance between the information contained in the written allegation and the
evidence presented at the contested hearing.” Id. at 8. The Commonwealth
counters that Appellant was “fairly put on notice of the evidence to be
presented against him.” Id. at 3. We agree.
This Court recently examined evidence of indecent assault where the
victim was intoxicated and the appellant was charged with, inter alia, sexual
assault under both subsections (1) (lack of consent) and (4) (unconscious).
Commonwealth v. Stahl, 175 A.3d 301 (Pa. Super. 2017). We stated:
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Turning to the evidence in this case, we find that it was
clearly sufficient to support a guilty verdict. Appellant conceded
that he engaged in sexual intercourse with the victim, and that
she was intoxicated at the time. Thus, the Commonwealth had the
burden of proving that the victim was “unconscious or ... unaware
that the sexual intercourse is occurring[.]” 18 Pa.C.S. §
3121(a)(3); see also 18 Pa.C.S. § 3125(a)(4) (requiring a
showing that the victim was “unconscious or ... unaware that the
penetration is occurring”). Such a showing would also suffice
to demonstrate lack of consent for purposes of Section
3126(a)(1).
Stahl, 175 A.3d at 305 (emphasis added).
Consistent with the evidence of record and Stahl, the Juvenile Court
adjudicated Appellant of indecent assault under 3126(a)(1), stating that it had
“viewed the video of the incident, and determined that [the complainant] was
not fully conscious/not in a condition to consent to the sexual contact.”
Juvenile Court Opinion, 2/6/18, at 3. Here, as with Stahl, the same evidence
of sexual contact and the victim’s intoxication sufficed “to demonstrate a lack
of consent for purposes of Section 3126(a)(1),” and belies Appellant’s
argument that he was deprived of due process because he “lacked adequate
notice” from which to prepare his defense. Finally, we agree with the
Commonwealth that Section 3126(a)(1), as a second-degree misdemeanor,
is a lesser included offense of Section 3126(a)(4), which is a first-degree
misdemeanor. See 18 Pa.C.S.A. § 3126(b)(1),(2); see also Commonwealth
Brief at 14-15.
Likewise, we are not persuaded by Appellant’s second issue assailing
the sufficiency of the evidence. Appellant claims that the evidence “did not
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establish a lack of consent.” Appellant’s Brief at 10. In evaluating a challenge
to the sufficiency of the evidence supporting an adjudication of delinquency,
our standard of review is as follows:
When a juvenile is charged with an act that would constitute a
crime if committed by an adult, the Commonwealth must establish
the elements of the crime by proof beyond a reasonable doubt.
When considering a challenge to the sufficiency of the evidence
following an adjudication of delinquency, we must review the
entire record and view the evidence in the light most favorable to
the Commonwealth.
In determining whether the Commonwealth presented sufficient
evidence to meet its burden of proof, the test to be applied is
whether, viewing the evidence in the light most favorable to the
Commonwealth, and drawing all reasonable inferences therefrom,
there is sufficient evidence to find every element of the crime
charged.
In re A.V., 48 A.3d 1251, 1252–53 (Pa. Super. 2012). It is well-settled that
the trier of fact – in this case the Juvenile Court – assesses the credibility of
the witnesses and weighs the evidence, and is free to believe all, part or none
of the evidence. Commonwealth v. Britton, 134 A.3d 83, 86 (Pa. Super.
2016) (citation omitted).
Instantly, Appellant asserts that “[t]his was an episode of drunken
consensual behavior by among immature teenagers [and only] became a
sexual assault when an ashamed complainant and vengeful girlfriend turned
it into a sexual assault.” Appellant’s Brief at 11. The Juvenile Court concluded
otherwise, and that conclusion is supported by the record.
The juveniles involved in the incident testified at the hearing. The
complainant testified that she had little memory of the incident, stating, “I
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just remember saying no, [Appellant], stop it. That’s all I remember.” N.T.,
4/10/17, at 14. It was not until the next day that the complainant learned
about the incident and that M.V. had videotaped it. The complainant opined
that Appellant “knew that I couldn’t take care of myself. . . . I thought he
would take care of me and make sure I was alright, but I guess that wasn’t
on his mind at the time.” Id. At 56.
M.V. testified that the four juveniles were drinking vodka in her
basement when one of females, I.C., passed out. She testified that the three
others kissed, and that eventually, when the complainant laid down, Appellant
“pulled [the complainant’s] pants down, and he like raped her from there.”
Id. at 72. M.V. testified to filming the incident, and the video was played at
the hearing. Id. at 72-73. M.V. also testified that the complainant said, “stop,
[Appellant], that hurts.” Id. at 81.
Conversely, Appellant testified that the sexual contact with the
complainant was consensual. In describing the encounter, Appellant stated,
“First we make out . . . and then . . . she says like somewhere along the line
she says like that I’m worth it. And then she tells me to put it in.” Id. at 198-
99. Immediately thereafter, the Juvenile Court expressed its disbelief,
stating: “I sincerely doubt that.” Id. at 199. The Juvenile Court subsequently
explained:
Appellant’s argument, that there was no “explicit lack of consent,”
is without merit. M.V., the eyewitness, immediately characterized
[Appellant’s] action as rape. The Court viewed the video of the
incident, and determined that [the complainant] was not fully
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conscious/not in a condition to consent to the sexual contact.
Similarly, Appellant’s argument that the victim’s inability to
remember what occurred should result in a dismissal must also
fail. To the contrary, that the victim was so intoxicated that she
had to be told that [Appellant] had intercourse with her, is further
indication that she did not consent. The Court’s adjudication on
the Indecent Assault charge, and not the other, more serious
offenses, was a recognition that all of the parties engaged in poor
behavior. Nonetheless, it was also clear to the Court that
[Appellant], who was not intoxicated, took advantage of [the
complainant’s] condition.
Juvenile Court Opinion, 2/6/18, at 3. Consistent with the foregoing – including
the Juvenile Court’s observation of the video of the incident – the evidence
was sufficient for the Juvenile Court to adjudicate Appellant of indecent assault
pursuant to Section 3126(a)(1).
For the above reasons, we affirm the adjudication of delinquency and
dispositional order of the Juvenile Court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/30/18
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