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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
IN THE INT. OF: D.R., A MINOR : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
APPEAL OF: D.R., A MINOR :
:
:
:
:
: No. 225 MDA 2023
Appeal from the Dispositional Order Entered November 28, 2022
In the Court of Common Pleas of York County Juvenile Division at No(s):
CP-67-JV-0000571-2021
BEFORE: LAZARUS, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY LAZARUS, J.: FILED: MARCH 1, 2024
D.R., a minor, appeals from the dispositional order, entered on
November 28, 2022, after the juvenile court adjudicated him delinquent for
committing one count each of criminal attempt–rape,1 involuntary deviate
sexual intercourse,2 criminal attempt–sexual assault,3 and indecent assault.4
D.R. challenges the weight of the evidence. After careful review, we affirm.
On June 10, 2021, K.M. (born 2010), the victim, was playing basketball
with D.R. near D.R.’s home. After some time, K.M. went into D.R.’s home to
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. § 901(a).
2 Id. at § 3123(a)(1).
3 Id. at § 901(a).
4 Id. at § 3126(a)(7).
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play video games. A.L., D.R.’s friend, was also in the home playing video
games. When D.R. and K.M. were alone in a room, D.R. removed K.M.’s
clothes, pried open her mouth, and put her head on his penis. K.M. tried to
lift her head and leave, and was eventually able to turn her head away, at
which time D.R. pushed K.M. down on her stomach and attempted to put his
penis in her buttocks. At some point during the assault, A.L. entered the room
and yelled at D.R. to stop. K.M. was able to get away and ran home. Upon
arriving home, K.M. called her cousin and informed her about the incident with
D.R.
The juvenile court held a factfinding/denial hearing on July 25, 2022,
during which K.M., A.L., Clara Roberti, forensic interviewer with the York
County Children’s Advocacy Center (CAC), and Detective Stephen Lebo from
the Northern York County Regional Police Department testified. At the
conclusion of the hearing, the court determined, beyond a reasonable doubt,
that D.R. committed the above offenses. On November 28, 2022, the juvenile
court adjudicated D.R. delinquent and entered a dispositional order, placing
him in supervised placement.
D.R. filed a timely post-dispositional motion, averring that the juvenile
court’s findings were against the weight of the evidence and that the court
erred adjudicating D.R. delinquent, which the juvenile court denied after a
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hearing on January 11, 2023.5 Subsequently, D.R. filed a timely notice of
appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal.6 D.R. raises the following issue for our review:
Did the lower court abuse its discretion in rejecting D.R.’s
challenge that the weight of the evidence was against his
adjudications where the complaining witness’ testimony was
substantially contradicted by another witness, her own prior
statements were inconsistent in key respects, and the court’s
resolution of these contradictions was largely based on the
incorrect notion that they all concerned events preceding the
alleged assault?
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5 A notice of appeal must be filed within 30 days of the entry of the order
being appealed. See Pa.R.A.P. 903(a). In a juvenile court case, if the juvenile
timely files a post-dispositional motion, the notice of appeal shall be filed
within 30 days of the entry of the order deciding the motion. See Pa.R.J.C.P.
620(B). A trial court has 30 days to decide a post-dispositional motion, and
if the court fails to decide the motion within that period, the motion is deemed
denied by operation of law. See Pa.R.J.C.P. 620(D). When the motion is
deemed denied by operation of law, the clerk of courts shall enter an order
deeming the motion denied on behalf of the trial court and serve copies on
the parties. See Pa.R.J.C.P. 620(D)(3). A notice of appeal must be filed
within 30 days of the entry of the order denying the motion by operation of
law. See Pa.R.J.C.P. 620(B)(2)(b).
Here, D.R. filed his post-dispositional motion on December 7, 2022.
Accordingly, the juvenile court had until January 6, 2023, to decide the
motion, otherwise it would be deemed denied by operation of law. The court
did not enter an order deciding the motion by January 6; however, the clerk
of courts also failed to enter an order deeming the motion denied on that date,
as required. Instead, the court held a hearing on the post-dispositional motion
on January 11, 2023, and entered an order the same day, denying the motion.
D.R. appealed within 30 days of that order. We have held that a court
breakdown occurs when the trial court clerk fails to enter an order deeming a
post-sentence motion denied by operation of law pursuant to Pa.R.Crim.P.
720(B)(3)(c). See Commonwealth v. Patterson, 940 A.2d 493, 498-99
(Pa. Super. 2007). As a result, we deem D.R.’s appeal as timely filed.
6 The juvenile court granted D.R. an extension to file his Rule 1925(b)
statement, after which D.R. filed his statement by the extended deadline.
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Appellant’s Brief, at 5. Specifically, D.R. contends that the contradictions
between the testimony of K.M. and A.L., as well as the inconsistencies
between K.M.’s testimony at the factfinding/denial hearing and her prior
statements when interviewed at the CAC, were such that the court improperly
weighed K.M.’s testimony when rendering its adjudication, and D.R.’s
adjudication and disposition should be vacated for a new factfinding/denial
hearing. Id. at 16.
Our standard of review regarding weight of the evidence claims is well-
settled:
The weight of the evidence is exclusively for the finder of fact[,]
who is free to believe all, part, or none of the evidence and to
determine the credibility of witnesses. An appellate court cannot
substitute its judgment for that of the finder of fact. Thus, we
may only reverse the lower court’s verdict if it is so contrary to
the evidence as to shock one’s sense of justice.
Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999) (citations omitted).
See also Commonwealth v. Knox, 50 A.3d 732, 738 (Pa. Super. 2012) (“A
claim that the evidence presented at trial was contradictory . . . requires the
grant of a new trial only when the verdict is so contrary to the evidence as to
shock one’s sense of justice.”) (citation omitted).
This Court applies the same standard for reviewing weight of the
evidence claims in juvenile cases as [in] those involving adults.
An allegation that the verdict is against the weight of the evidence
is addressed to the discretion of the trial court. An appellate court,
therefore, reviews the exercise of discretion, not the underlying
question [of] whether the verdict is against the weight of the
evidence.
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In re J.G., 145 A.3d 1179, 1187 (Pa. Super. 2016) (internal quotation marks
and citations omitted). See also Commonwealth v. Champney, 832 A.2d
403, 408 (Pa. 2003) (“[A]ppellate review is limited to whether the trial court
palpably abused its discretion in ruling on the weight claim.”).
D.R. included his weight of the evidence claim in his post-dispositional
motion. The juvenile court denied that motion after a hearing on January 11,
2023, and addressed D.R.’s claim as follows:
The [c]ourt acknowledged at the [fact-finding hearing] that there
were discrepancies between the victim[’s] and the minor witness’s
account of the events, however, the [c]ourt was able to reconcile
those differences. Moreover, the differences related to what
transpired before the act actually occurred. As a result, the
[c]ourt determined that the victim was credible. Accordingly, the
[c]ourt found [D.R.] to have committed the acts as alleged.
Order, 1/11/23, at 2-3. See also, N.T. Post-Dispositional Hearing, 1/11/23,
at 7. We, therefore, must determine whether the juvenile court abused its
discretion in rejecting D.R.’s claim.
A review of the record reveals that there were inconsistencies between
K.M.’s testimony at the hearing and her prior statements during her interview
with Clara Roberti at the CAC, which were admitted as tender years
testimony.7 In particular, K.M. testified at the factfinding/denial hearing that
D.R. attempted to put his penis in her buttocks and that she “kind of” felt it,
see N.T. Fact Finding/Denial Hearing, 7/25/22, at 13, 23, but stated during
her CAC interview that D.R.’s penis did not touch any part of her body aside
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7 See 42 Pa.C.S.A. § 5985.1.
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from her mouth. See K.M. Forensic Interview, 8/23/21, at 20:00, 25:00-
26:00 (K.M. stating D.R. “made to put” his penis in her buttocks, but his penis
did not touch her body); N.T. Fact Finding/Denial Hearing, 7/25/22, at 23-25
(K.M. acknowledging on cross-examination she did not remember prior
statement that she did not feel D.R.’s penis on her body).
There were also differences between K.M.’s testimony and A.L.’s
testimony. For example, K.M. testified that D.R. assaulted her in the living
room, whereas A.L. testified that the two were in D.R.’s bedroom. See N.T.
Fact Finding/Denial Hearing, 7/25/22, at 10-11, 19-20, 30-31, 34-36. Also,
K.M. testified that K.M., D.R., and A.L. had been playing video games together
and that the assault began when A.L. left to use the bathroom. Id. at 10, 18,
20-22. This was different from A.L.’s testimony, in which A.L. stated that he
had been playing video games in D.R.’s home alone after “chatting” with D.R.
and K.M. in the living room and D.R.’s bedroom. Id. at 34-35. However, A.L.
also testified that he heard K.M. say “no” and “stop, stop, stop” before going
to D.R.’s room to intervene. Id. at 29-30. A.L. testified that, upon entering
D.R.’s room, he “saw movement under the blanket” and “grabbed [D.R.’s]
legs and pulled and . . . [saw] clothes on the floor,” and did not know what to
do, so he left the room. Id. at 38.
While there were some inconsistencies and differences in K.M.’s
testimony at the factfinding/denial hearing, compared to her CAC interview
and A.L.’s testimony, any conflicts or contradictions in K.M.’s testimony were
for the juvenile court to resolve. See In the Interest of C.S., 63 A.3d 351,
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357 (Pa. Super. 2013) (“Conflicts in the evidence and contradictions in the
testimony of any witnesses are for the fact finder to resolve.”); see also
Small, supra. As highlighted above, the juvenile court recognized the
discrepancies in K.M.’s testimony but was able to reconcile those discrepancies
and found K.M. to be credible. See Order, 1/11/23, at 2-3.
After review of the record and the juvenile court’s adjudication, we
cannot say that the juvenile court’s determination is so contrary to the
evidence as to shock one’s sense of justice. See Small, supra; Knox, supra.
Moreover, this Court will not reweigh the evidence or substitute our own
judgment for that of the factfinder. See In re J.G., supra; see also In re
T.G., 836 A.2d 1003, 1005 (Pa. Super. 2003). Therefore, we conclude that
the juvenile court did not abuse its discretion when it concluded that the
verdict was not against the weight of the evidence. See In re J.G., supra.
As such, we affirm the juvenile court’s dispositional order.
Order affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 03/01/2024
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