In the Interest of K.A.T.

CONCURRING OPINION BY

BOWES, J.:

I join the majority in full as it relates to Juvenile’s sufficiency of the evidence claim. In addition, I concur with the majority’s conclusion that a claim of ineffective assistance of juvenile counsel need not be raised in an optional post-dispositional motion in order to be reviewed by this Court, especially where the juvenile has at all times been represented by the Public Defender’s Office, as in this case. Further, although I disagree with part of the majority’s discussion of Juvenile’s first ineffectiveness claim, I concur in its finding that Juvenile is not entitled to relief.

Initially, I agree with the majority that, insofar as In re D.S. 614 Pa. 650, 39 A.3d 968 (2012) highlights that juveniles cannot pursue issues under the PCRA, it is improper to impose harsher waiver rules on juveniles than those that apply to adults. As the distinguished majority accurately recognizes, juveniles are not subject to the rule announced in Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), which generally requires ineffectiveness issues to be deferred until collateral review. Since juveniles are ineligible for PCRA relief, they are permitted to raise claims of ineffective assistance of counsel during direct appeal. I add that neither the Commonwealth nor the juvenile court has advocated for a waiver rule based on counsel’s failure to raise her own ineffectiveness in an optional post-dispositional motion and both the Commonwealth and juvenile court addressed the ineffectiveness claims on their merits.

The pertinent optional post-dispositional rule and comment herein read in relevant part:

A. Optional Post-Dispositional Motion.
(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.
*705[[Image here]]
Comment: The purpose of this rule is to promote the fair and prompt resolution of all issues relating to admissions, adjudication, and disposition by consolidating all possible motions to be submitted for court review, and by setting reasonable but firm time limits within which the motion is to be decided. Because the post-dispositional motion is optional, a party may choose to raise any or all properly preserved issues in the trial court, in the appellate court, or both. For the definition of “disposition,” see Rule 120 and its Comment
OPTIONAL POST-DISPOSITIONAL MOTION
See In re Brandon Smith, 393 Pa.Super. 39, 573 A.2d 1077 (1990), for motions on ineffective assistance of counsel.
Under paragraph (A)(2), any issue raised before or during adjudication is deemed preserved for appeal whether a party chooses to raise the issue in a post-dispositional motion. It follows that the failure to brief or argue an issue in the post-dispositional motion would not waive that issue on appeal as long as the issue was properly preserved, in the first instance, before or during adjudication. Nothing in this rule, however, is intended to address Pa.R.A.P. 1925(b) or the preservation of appellate issues once an appeal is filed. See Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998) (any issues not raised in a 1925(b) statement will be deemed waived).

Pa.R.J.C.P. 520 and comment thereto; see also Pa.R.J.C.P. 620 (effective February 23, 2012).

There is no decisional law construing the rule herein to require an attorney to raise her own ineffectiveness or an ineffectiveness claim in general in an optional post-dispositional motion to preserve the issue. The language of the rule refers specifically to issues that are raised before or during the adjudicatory hearing. The only issues the rule addresses relating to claims that would be raised after disposition are after-discovered evidence matters. Insofar as the comment refers to “properly preserved” issues, it also does so in the explicit context of issues arising “before or during adjudication.” Comment to Pa. R.J.C.P. 520 (effective until February 23, 2012). The comment’s “properly preserved” phraseology does not, as a matter of construction, pertain to ineffectiveness claims, which would be raised after the adjudication.1

There is nothing apparent from the express language of the rule or its comment that preserving an attorney’s own ineffectiveness in an optional post-dispositional motion is mandatory. The face of both the rule and its comment, instead, provides that the post-dispositional motion is optional and the failure to file such a motion does not automatically result in waiver. Moreover, never has any court in Pennsylvania held that an attorney must raise her own ineffectiveness during the ongoing proceedings nor is there a case that requires a claim regarding a juvenile attorney’s ineffectiveness be set forth in a post-dispositional motion or be subject to waiver.

In light of the lack of precedent and because a reasonable reading of the rule does not provide adequate notice to the bar that they must raise claims of ineffec*706tiveness in an optional post-dispositional motion, it would be improper for this Court to find waiver. Commonwealth v. Liston, 602 Pa. 10, 977 A.2d 1089, 1093-1094 (2009) (“Before a mandatory rule of procedure affecting an untold number of cases is issued [by the Superior Court], it should be studied and approved by one of our procedural rules committees, and then considered by [the Supreme] Court”). Thus, even absent our Supreme Court’s decision in In re D.S., supra, I would find that a claim of juvenile counsel ineffectiveness is not automatically waived if not presented in an optional post-dispositional motion.

Further, as the majority recognizes, we have allowed juvenile counsel to raise ineffectiveness claims for the first time on appeal. In re A.J., 829 A.2d 312 (Pa.Super.2003). Any tension between allowing claims to be raised for the first time on appeal and this Court addressing the issue in the first instance can be ameliorated by the remand procedure that this Court has consistently followed. Where the juvenile court adequately addressed the issues in its Pa.R.A.P. 1925(b) opinion, and no additional fact-finding is necessary, this Court can address the claims. See In re B.S., 831 A.2d 151, 155 (Pa.Super.2003) (‘Where the issues have been briefed by both parties and the record is complete however, we may, in the interests of judicial economy, address the merits of appellant’s allegations of error.”); see also Interest of A.P., 421 Pa.Super. 141, 617 A.2d 764, 768 (1992) (en banc).

Furthermore, it should be acknowledged that any finding of waiver of juvenile counsel ineffectiveness claims based on the failure to file an optional post-dispositional motion would essentially be engrafting discarded adult criminal law into the juvenile context. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), abrogated by Grant, supra.2 Such a rule would have the unfortunate effect of imposing more rigid requirements in juvenile cases than those applicable in adult proceedings, something the In re D.S. Court and the majority herein appropriately reject.

As it relates to the merits of Juvenile’s ineffectiveness suppression claim, I depart from the majority to the extent that it holds that the claim lacks arguable merit. I would find that Juvenile’s issue presents a claim of arguable merit, but that he cannot establish actual prejudice. The majority highlights that the victim who made the identification in this case was pepper sprayed in his eyes during the attack. Accordingly, the victim’s ability to perceive his assailant was seriously impaired. The attack also occurred shortly before 1:00 a.m. in an area where the victim admitted there was no real light, and the victim only caught a glimpse of the perpetrator for a “short amount of time.” N.T., 5/19/11, at 6. The victim described his attacker as a thin light-skinned black male wearing glasses who was approximately the same height as the victim.

Approximately, one-half hour later, police took the victim to the police station to identify his possible assailant. The victim was told by police that he would be making an identification and that police “had what they thought was the person and for me to *707ID the person.” Id. at 21. At the time the victim entered the police station, his vision was still impaired by the pepper spray. Id. at 24. The only persons who were not in police uniform in the room where police brought the victim were Juvenile and his mother, the latter of whom certainly could not have been mistaken for the perpetrator. There was no evidence presented that Juvenile wore glasses. These factors render Juvenile’s claim that counsel should have sought to suppress the out-of-court identification and prevent an in-court identification to be one of arguable • merit.

Nonetheless, additional circumstances warrant the conclusion that Juvenile cannot establish actual prejudice, i.e., a reasonable probability that the outcome of a suppression hearing would have resulted in suppression of the identification and thus a reasonable probability that the outcome of the adjudicatory hearing would have been altered. Commonwealth v. Arch, 439 Pa.Super. 606, 654 A.2d 1141, 1143 & 1145 (1995) (illegal stop tainted a subsequent search and if evidence was suppressed due to stop there was a reasonable probability that the outcome of the trial would have been different); see also Commonwealth v. Melson, 383 Pa.Super. 139, 556 A.2d 836 (1989) (Trial counsel found ineffective after not filing a motion to suppress an identification where the witness provided the only untainted testimony connecting the defendant with the crime, the trial court declared it would have suppressed the identification, and there was a reasonable probability that the outcome of the trial would have been different).

The critical factor in this matter is that the victim identified Juvenile by his voice. Prior to the attack, the victim heard his assailant ask for a cigarette. The victim then heard the perpetrator demand, approximately five times, that he “Give up the money.” N.T., 5/19/11, at 7. The pepper spray, poor lighting, and short duration of observing his attacker have no bearing on the victim’s voice identification. The victim stated that he was “300 percent certain” that Juvenile’s voice was the voice of his attacker. Id. at 15. For this reason, I find that Juvenile cannot establish actual prejudice on this issue.

As it pertains to Appellant’s second ineffectiveness claim, I agree that Officer Haring’s testimony about the description of the perpetrator, when placed in context, falls under course of conduct testimony. I add that because this was not a jury trial, and we presume that a judge does not consider evidence improperly, Juvenile cannot establish prejudice. See Commonwealth v. Dent, 837 A.2d 571 (Pa.Super.2003); compare Gombar v. Penn., DOT, 678 A.2d 843 (Pa.Cmwlth.1996) (admission of state-of-mind testimony became improper hearsay during non-jury trial where court considered it for truth of the matter asserted). Moreover, the victim testified at the adjudicatory hearing as to the description he provided to police. N.T., 5/19/11, at 9-10. Hence, Officer Haring’s testimony was cumulative of properly admitted evidence. Compare Commonwealth v. Carroll, 355 Pa.Super. 569, 513 A.2d 1069, 1071 (1986) (counsel found ineffective where a statement from a confidential informant contained in a search warrant was introduced where the informant was not available for cross-examination and the jury could have learned that police arrested the defendant in response to that warrant without including the hearsay statements).

With the aforementioned caveats and additions in mind, I join the majority.

. The comment also references In the Matter of Smith, 393 Pa.Super. 39, 573 A.2d 1077 (1990) (en banc). A majority of judges therein concluded that ineffective assistance of counsel claims need not be raised in a post-dispositional motion. Smith was decided pri- or to the adoption of the post-dispositional motion rule.

. At the time of the promulgation of the Hubbard rule, adult defendants were required to preserve all issues in a post-trial motion. The Hubbard rule never applied to juvenile cases because, until 2007, post-dispositional motions were not provided for by rule in juvenile matters. Moreover, Hubbard did not require an attorney to raise his own ineffectiveness. See Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687, 695 n. 6 (1977) ("ineffectiveness of prior counsel must be raised at the earliest stage in the proceedings at which the counsel whose effectiveness is being challenged no longer represents the defendant.”).