J-S55043-16
2016 PA Super 191
IN THE INTEREST OF: J.G., A MINOR IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
APPEAL OF: J.G., A MINOR
No. 1884 EDA 2015
Appeal from the Dispositional Order June 2, 2015
In the Court of Common Pleas of Philadelphia County
Juvenile Division at No(s): CP-51-JV-0003238-2014
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
CONCURRING AND DISSENTING OPINION BY LAZARUS, J.:FILED AUGUST 26, 2016
I join in the Majority’s disposition of Juvenile’s challenges to the
suppression and sufficiency of the evidence. I write separately, however,
because I disagree with the Majority’s decision to remand this case for the
filing of a post-disposition motion. While I acknowledge we are bound by
the Pennsylvania Supreme Court’s decision in In re J.B., 106 A.3d 76, 91
(Pa. 2014), that decision does not compel remand here.
In J.B., the Court held that J.B. did not waive his weight of the
evidence claim where he raised it for the first time in his Rule 1925(b)
statement and the trial court addressed the issue. In its analysis, the Court
acknowledged that J.B. did not file a post-disposition motion; the Court also
acknowledged that raising it in closing argument was inconsequential
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S55043-16
because a weight challenge presupposes adjudication. Id. at 95. What the
Court found significant was the fact that
J.B. did, however, present his weight of the evidence claim
to the juvenile court in his Pa.R.A.P. 1925(b) statement.
The question, then, is whether this manner of
presentation, coupled with the fact that the juvenile
court ruled on it in its Pa.R.A.P. 1925(a) opinion
sufficiently preserved his claim for appellate review. The
Juvenile Rules of Court Procedure do not, at present,
specify how a juvenile who has been adjudicated
delinquent must present a weight of the evidence claim to
the juvenile court so that the claim is preserved for
appellate review. However, in a procedurally identical
matter, our Court, in [Commonwealth v.] Widmer, [689
A.2d 211 (Pa. 1997)], addressed, in the context of criminal
proceedings, a similar gap in the procedural rules
governing presentation and appellate review of a weight of
the evidence claim. Therein, our Court unanimously
refused to find a criminal defendant's weight of the
evidence claim waived where it was raised in the
defendant’s statement of matters complained of on
appeal and ruled on by the trial court.
Id. at 96 (emphasis added).
Here, unlike in J.B., the trial court did not rule on the weight claim in
its Pa.R.A.P. 1925(a) opinion. Notwithstanding this distinction, I note my
agreement with the sound reasoning in then-Justice Stevens’ dissenting
opinion in J.B., that where a weight claim has not been raised to the juvenile
court judge, an appellant cannot resurrect it in a Rule 1925(b) statement:
“the text of Pa.R.J.C.P. 620, and particularly as supported by its Comments,
sets forth a proper, clear mechanism providing for juveniles to present their
weight challenges to the juvenile court, and [appellant] should have been
aware of the preservation requirements.” J.B., 106 A.3d at 103 (Stevens,
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J-S55043-16
J., dissenting). See Pa.R.J.C.P. 620(A)(1) (“The parties shall have the right
to make a post-dispositional motion.”). See also Pa.R.J.C.P. 620 -Comment
(“[M]otions alleging that the court’s findings were against the weight of the
evidence are to specify why the findings were against the weight of the
evidence.”).
Instantly, since J.G. did not raise or preserve his weight of the
evidence issue for appeal, it is waived and there is no need for a remand.
Based upon the foregoing, I respectfully concur with the majority as to
the disposition of J.G.’s suppression and sufficiency of the evidence claims
and dissent as to the decision to remand.
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