In re M.J.M.

858 A.2d 1259, 2004 Pa. Super. 360, 2004 Pa. Super. LEXIS 3260
CourtSuperior Court of Pennsylvania
DecidedSeptember 15, 2004
StatusPublished
Cited by10 cases

This text of 858 A.2d 1259 (In re M.J.M.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re M.J.M., 858 A.2d 1259, 2004 Pa. Super. 360, 2004 Pa. Super. LEXIS 3260 (Pa. Ct. App. 2004).

Opinion

OPINION BY

LALLY-GREEN, J.:

¶ 1 Appellant, M.J.M., appeals from the trial court’s October 17, 2003 order of disposition. We affirm.

¶ 2 The trial court recited the following facts and procedural history:

On August 19, 2003, the court found that the juvenile, M.J.M., had committed, beyond a reasonable doubt the acts of harassment, 18 Pa.C.S.A. § 2709(a)(3), and ethnic intimidation, 18 Pa.C.S.A. § 2710(a), and adjudicated the juvenile a delinquent. The court deferred disposition until October 17, 2003. M.J.M. appeals the adjudication. This Opinion is filed pursuant to Pa.R.A.P. 1925. The following are the pertinent facts.
On April 8, 2003, at 7:30 a.m. Hispanic twin brothers, Alexander and Anthony, were riding a public school bus en route to school. They are fourteen years old and in seventh grade. They were the only Hispanics on the bus that day. Due to past verbal abuse and insults [1261]*1261from the juvenile, the brothers’ parents had told them to sit in the front of the bus behind the driver. Last year the twins and the juvenile had gotten into a fight on the bus due to the juvenile’s comments about ethnicity. On this day the brothers were sitting behind the bus driver as their parents had requested.
Three boys, Tyler, Andy, and Andrew, were sitting at the back of the bus. The juvenile boarded the bus after the brothers and joined the other three boys at the back of the bus. The juvenile sat on the last seat on the driver’s side.
Alexander testified that the bus had been quiet and he had been able to hear the juvenile talking. The juvenile had made the following remark about the brothers’ parents. ‘Tour parents are only here for the 15th and 30th, payday.” The juvenile had referred to Alexander’s name when he had spoken. After Alexander had heard the remark, he testified that he had felt “Like my heart stopped.” Transcript, August 19, 2003, p. 19. Alexander did not hear any other part of the juvenile’s conversation because the juvenile- had then lowered his voice.
Alexander told the bus driver and his parents about this incident. The bus driver did nothing about it. Several witnesses testified to the good rapport shared by the bus driver and the juvenile.
The juvenile and the brothers rode the school bus after school on that same day. They sat in the same seats as they had earlier on the trip to school. During this ride Alexander heard the juvenile state that all Puerto Ricans had small “dicks.” The juvenile was also shooting tampons by putting them in his mouth. One of the plastic tubes landed on Alexander’s lap.
Anthony heard the juvenile’s remarks made in the morning on the bus about Puerto Ricans, including the remark that his family should go back to Puerto Rico. He did not hear the juvenile’s remark concerning small penises. However, another student told him about it. "When Anthony then looked at the juvenile, the juvenile looked at Anthony and smiled.
Tyler is fifteen years old. He testified that the juvenile had spoken in a volume loud enough for other people to hear.
The twins’ father testified. The court notes that he is gainfully employed as a criminal investigator for the Reading Police Department. His children had informed him about the incidents on April 8, 2003. He also knew of approximately five other incidents concerning the juvenile and the boys. In the past the father had tried to resolve the problems by calling school personnel and having his sons sit up front near the bus driver to get away from the juvenile. He also had his attorney send two letters to the juvenile’s parents. Nothing resulted from the letters.
Andy and Andrew are the juvenile’s friends who were on the bus in the morning. They testified that the juvenile had not mentioned the brothers’ surname when he had made the remark about Puerto Ricans and that he talked in a normal tone of voice.
The bus driver testified that on the day of the incident she had not heard any comments about Puerto Ricans and had not seen any tampons being shot around, although she had found one at the end of the day. She denied that the juvenile shares a better relationship with her than the other children do. She stated that she treats all the students the same.
[1262]*1262M.J.M. is sixteen years old. He testified that the tenor of his conversation on April 8, 2003, had been about “patriotism”. He had stated that Puerto Ri-cans are only proud to be Americans on the 15th and 30th of the month. The juvenile believed that people receive their welfare checks on those dates. He had made the remark as a “joke”. He further testified that he had not intended that the brothers should hear the remarks. He had already been warned about having conversations with them. He denied making the comment about Puerto Ricans’ penises.
The juvenile further testified that others had shot tampons before he had done so. His tampons had not gone very far.
The officer who investigated the bus incident did not receive a tape although tapes are supposed to be used daily on the bus. He was informed by school personnel that there was no tape available for the day of the incident because either the camera had not worked or something had been wrong with the tape itself because the tape was blank.
Based on the foregoing testimony the court found that the juvenile had committed the aforesaid acts.

Trial Court Opinion, 12/11/03 at 1-4.

¶ 3 Appellant raises the following issues for our review:

Did not the trial court err in finding the evidence sufficient to support its adjudication of delinquency, when the testimony established that any statements made by the minor were not threats or intimidation nor directed to or heard by the alleged victims. Furthermore, did not the court err in dismissing the Appellant’s motion to dismiss based on these facts as a violation of the minor’s right of free speech as protected by Article 1, Section 7 of the Pennsylvania Constitution and by the United States Constitution?

Appellant’s Brief at 5.1

¶4 The standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt. Commonwealth v. Vetrini, 734 A.2d 404, 406-07 (Pa.Super.1999). Additionally, it is not the role of an appellate court to weigh the evidence or to substitute our judgment for that of the factfinder. Id. When the court is sitting as the finder of fact, it is presumed that inadmissible evidence is disregarded and that only relevant and competent evidence is considered. Commonwealth v. Gonzales, 415 Pa.Super. 564, 609 A.2d 1368, 1371 (1992).

¶ 5 Our statutes define the offense of ethnic intimidation as follows:

§ 2710. Ethnic intimidation
(a) OFFENSE DEFINED.

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Bluebook (online)
858 A.2d 1259, 2004 Pa. Super. 360, 2004 Pa. Super. LEXIS 3260, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mjm-pasuperct-2004.