In the Int. of: K.N.Z, a Minor

• Court: Superior Court of Pennsylvania
• Decided: October 14, 2022
• Docket: 81 MDA 2022
• Status: Unpublished

Opinion

J-S23030-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: K.N.Z., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : Appellant : : : : : : No. 81 MDA 2022

Appeal from the Dispositional Order Entered November 5, 2021 In the Court of Common Pleas of Franklin County Juvenile Division at No(s): CP-28-JV-0000055-2021

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 14, 2022

K.N.Z. appeals from the dispositional order entered after she was

adjudicated delinquent. She argues the weight of the evidence did not support

the adjudication of delinquency. We affirm.

The juvenile court offered the following summary of the underlying

facts.

On August 7, 2020, Trooper Travis Piper was called to the home of R.C.F. (D.O.B. xx/xx/05) (“hereinafter Minor Child”) by her mother after the Minor Child disclosed that she had been sexually assaulted by [K.N.Z.] approximately five years prior.

On August 18, 2020, Minor Child was interviewed by Forensic Interviewer Alexa Stouffer at Over the Rainbow, an advocacy center for children located in Franklin County. During the interview, Minor Child stated that the incidents took place while riding on the school bus during her 4th grade year.

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* Retired Senior Judge assigned to the Superior Court. J-S23030-22

Minor Child stated that during these incidents, [K.N.Z.] asked Minor Child to sit with her towards the back of the bus. Minor Child moved seats and [K.N.Z.] used several backpacks as a barrier to obscure the view of other students. [K.N.Z.] and Minor Child sat on the floor of the bus and [K.N.Z.] would have Minor Child pull her pants and underwear down. [K.N.Z.] then digitally penetrated Minor Child’s vagina and anus. These incidents were reported by Minor Child to have occurred almost daily during the morning and evening commute for a four month span.

Juvenile Court Opinion, 3/22/22, at 2-3.

At an adjudicatory hearing, the Commonwealth presented the testimony

of Minor Child, who was 15 years old at the time. She described the initial

incident thusly:

I remember the first day that it happened we were sitting on the bus ride home, and it was just – everyone was talking. I remember at the time I was just still very like – like very closed off to myself, so I wasn’t really talking to many people, like a lot of the other kids were. I was concentrating listening to music and everything. [K.N.Z.] asked me to come back and sit with her which normally you don’t really get up and switch seats and everything, but she was just one seat behind me so I got up and I went back and I sat with her, and she took my backpack and her backpack and normally just another kid’s like when it continued on, and she would like make like a backpack wall, and then we would get on the floor and then she would take my pants off and my underwear off, and she would put her fingers inside of my butt, inside of my vagina. Eventually later on that happened, but like inside my vagina didn’t happen until later on like it went on for longer.

N.T., 7/16/21, at 9-10.

Minor Child identified the school bus on which the assaults took place as

the 904 bus. Id. at 8, 18. She testified the bus was “pretty loud” and

“rumbustious,” and that the driver “was pretty laid back for the most part . .

. [i]t wasn’t too many rules like many other bus drivers have. It was pretty

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like chill. You could do almost like anything.” Id. at 8-9. She stated K.N.Z.

would borrow a backpack from a nearby friend and use their three backpacks

to make a wall. Id. at 25-26. K.N.Z. would place two of the backpacks on the

ground, and one on top of the seat. Id. at 25. Minor Child and K.N.Z. would

sit on the ground, facing the aisle, with Minor Child closer to the aisle. Id. at

12, 27. K.N.Z. would pull down Minor Child’s pants and underwear but leave

them around her ankles so she could pull them up quickly when they got close

to the bus stop. Id. at 12. Minor Child testified that there was nothing covering

the two children, and the area underneath the seats was “open,” with the

seats propped up by legs. Id. at 27. She stated that her ride to and from

school was about 10 to 15 minutes each day, and no one ever looked over the

seat to see what they were doing. Id. at 9, 26-27. Minor Child testified that

she did not seek help because she did not understand what was happening

until she learned about sexual assault in seventh grade. Id. at 14-16, 32-33.

Minor Child testified that she did not know K.N.Z. personally but

remembered her first name and face, located her in the yearbook at the time

of the assaults, and had “no doubt” that K.N.Z. was the person who assaulted

her. Id. at 17, 21. She also stated that K.N.Z. was one of the louder children

on the bus. Id. at 23-24.

Regarding their location on the bus, Minor Child testified that she and

K.N.Z. “were the older ones so we sat at the very like back of the bus.” Id. at

11. She stated K.N.Z. sat in the last seat, and Minor Child sat directly in front

of her. Id. at 11, 24-25. The Commonwealth introduced a seating chart for

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the 904 bus during the 2015-2016 school year. N.T. at 34; Commonwealth’s

Exh.1. It indicated Minor Child was in fourth grade at the time, and K.N.Z was

in fifth grade. N.T. at 34; Commonwealth’s Exh.1. It showed Minor Child’s

assigned seat was four rows from the back, with an empty space behind her,

but with a handful of other children sitting further back. N.T. at 39. The seating

chart also showed K.N.Z.’s seat was three rows from the front, and on the

other side of the aisle. Id. at 36-38. Minor Child testified that she had never

seen the seating chart before, and while she believed there were assigned

seats, they were not strictly enforced. Id. at 25, 34, 40.

Regarding the date, Minor Child testified that the events happened while

she was in fourth grade, which she believed was the 2015-2016 school year.

Id. at 7, 18, 33. She also stated that the assaults took place during the year

she moved and stopped when she moved and switched buses. Id. at 10, 15,

33. She stated the assaults started late in the year, when it started to get

cold, occurred every day for a period of three to four months, and stopped in

the middle of the school year, after she moved. Id. at 19-20.

On cross-examination, K.N.Z. introduced an e-mail from the Supervisor

of Transportation stating that Minor Child moved in December of the 2016-

2017 school year, when she was in fifth grade. Id. at 21-23, 88; Defense Exh.

2. The e-mail stated that that year, Minor Child switched from the 904 bus to

the 608 bus, and K.N.Z., who was in sixth grade, rode the 413 bus all year.

N.T. at 22-23; Defense Exh. 2. Minor Child reaffirmed that the assaults

happened on the 904 bus, during her fourth-grade year, and that she believed

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this was the same year she had moved and changed buses. She agreed that

either she must be wrong about the year she switched buses “or this record

from the school is just wrong.” N.T. at 22.

The Commonwealth also presented the testimony of Minor Child’s

mother, who testified regarding how Minor Child disclosed the incidents to her

family. Id. at 42-43. Mother also said that they moved over Christmas break

when K.N.Z. was in fourth grade, and that she rode the 904 bus until the

move. Id. at 44-45. According to Minor Child’s mother, Minor Child did not

change buses at any other time. Id. at 46.

K.N.Z. called Acamie Wilt, who drove the 904 bus during the 2015-2016

school year. Wilt testified that she drives 20 to 30 children at one time. Id. at

49. She said that she requires the children to stay in their assigned seats and

maintains a seating chart pursuant to state law. Id. at 49-50. She allows the

children to choose their seats the first week of the school year. Id. at 51-52.

Wilt testified that K.N.Z. was “quiet” and “one of her good ones.” Id. at

51. She stated K.N.Z. “sat up close to [her] the whole time,” two to three rows

behind her. Id. She testified that Minor Child was also quiet and sat “towards

the back.” Id. at 52. Wilt testified that she does not recall the two children

ever sitting together. Id. at 52, 66-67. Defense counsel showed Wilt the

seating chart, which Wilt testified she had created, and Wilt stated that it

showed there were several children who sat further back in the bus than Minor

Child. Id. at 53-54. She also testified that although there were 56 children

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listed on the chart, she stated, “You have to put everyone on there but a lot

of times half of them don’t ride.” Id. at 69.

Wilt testified that she could see to the back of the bus, and “could tell if

I was missing a head or something back there. If they were laying down[,]

they were told to sit up.” Id. at 56. According to Wilt, there was no privacy

on the bus. Id. at 57. Wilt testified that she would notice if someone built a

backpack wall or was sitting on the floor. Id. Wilt also testified that other

children would tell her if anyone was sitting on the floor. Id. at 58. She would

purposefully station children in the back of the bus to “tell [her] everything

that goes on.” Id. However, Wilt also testified that “all of [her] bad kids” sit

in the back of the bus, “because I can’t see and hear them.” Id. at 65.

K.N.Z. introduced a copy of the bus’s morning route. Id. at 59; Defense

Exh. 1. Wilt testified that she would pick Minor Child up around 8:38 A.M. and

would arrive at school around 8:40 A.M. N.T. at 60. She was unable to unload

the children until 8:45 A.M., and would walk down the aisle and interact with

the children while waiting to unload. Id. at 60-61. Wilt testified it would be

about 10 minutes on the afternoon commute until she dropped off K.N.Z. Id.

at 73.

K.N.Z. also testified. She stated she rode the 904 bus when she was in

fifth grade, and that she sat towards the front because the back of the bus

was loud and she did not like loud people. Id. at 76-77, 79. She described

herself as a quiet person. Id. at 76. She stated the seating chart introduced

by the Commonwealth was correct and that Wilt enforced it. Id. at 78-79, 81.

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She confirmed that on the route home, she would disembark first, and that

her stop was approximately 10 minutes from the school. Id. at 83, 85. K.N.Z

stated that the next year, when she was in sixth grade, she rode the 413 bus.

Id. at 80. She denied the allegations of assault. Id. at 79-80.

The court found that if K.N.Z. had been an adult, her actions would have

constituted the crimes of aggravated indecent assault, indecent assault of a

person less than 13 years of age, and harassment.1 The court adjudicated

K.N.Z. delinquent and placed her on probation. The court ordered her to pay

court costs, perform 10 hours of community service, and complete a

prevention, treatment, and aftercare program.

K.N.Z. filed a post-dispositional motion challenging the weight of the

evidence. The court denied the motion, and K.N.Z. appealed. K.N.Z. asks this

Court to decide whether the trial court erred “by finding that the verdicts were

not against the weight of the evidence?” K.N.Z.’s Br. at 4.

K.N.Z. argues the Minor Child’s testimony was not credible. First, she

argues that Minor Child “consistently and confidently” testified that the

assaults happened during the year she switched buses. K.N.Z.’s Br. at 9; see

also id. at 10 (“[t]he change in buses was a significant part of the accuser’s

memory of the alleged acts and cannot be ignored”). However, K.N.Z. argues

the letter from the Supervisor of Transportation proves that the year Minor

1 18 Pa.C.S.A. §§ 3125(a)(7), 3126(a)(7), and 2709(a)(1), respectively.

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Child changed buses was during the 2016-2017 school year, and that K.N.Z.

rode a different bus than Minor Child that year.

K.N.Z. also argues Minor Child testified that K.N.Z sat in the last seat

on the bus, and Minor Child sat directly in front of her. However, she asserts,

the seating chart introduced by the Commonwealth, her testimony, and Wilt’s

testimony, all established that she sat closer to the front, while Minor Child

sat near the back.

Third, K.N.Z. argues that while Minor Child testified that K.N.Z. was

“loud,” the bus driver testified that K.N.Z. was “quiet” and “one of [her] good

ones.” Id. at 12 (quoting N.T. at 23-24, 51). K.N.Z. also testified that she was

not loud on the bus and did not like loud people. Id. at 13. K.N.Z. argues,

“[t]he differences in description are so stark that it leads one to wonder

whether there was a mistaken identification of [K.N.Z.].” Id.

Finally, K.N.Z. argues that “the logistics of performing such acts for the

duration of time alleged and in the environment of the school bus without

anyone else witnessing and reporting such behavior lead one to find the

verdicts shocking to one’s sense of justice[.]” Id. K.N.Z. points out that the

testimony showed that the two children were on the bus together for

approximately 10 minutes during the evening commute, and even less time

in the morning. K.N.Z. argues that even if there was enough time to perform

the alleged acts, it is unlikely that no one would have observed the assaults.

She stresses that although Minor Child testified K.N.Z. shielded them with a

wall of backpacks, they did not cover themselves with anything. K.N.Z. also

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points out that Wilt testified she could see the children’s heads over the seats

or if any children were sitting on the floor, and that there was no privacy on

the bus.

A juvenile court should reverse an adjudication of delinquency when it

is “so contrary to the evidence as to shock one’s sense of justice and the award

of a new [hearing] is imperative so that right may be given another

opportunity to prevail.” In re J.B., 106 A.3d 76, 95 (Pa. 2014) (quoting

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). The juvenile court

has discretion over the weight claim in the first instance, and we review its

decision for an abuse of that discretion. Id. The denial of a weight claim is the

least assailable of a juvenile court’s rulings, as conflicts in the evidence and

credibility determinations are to be resolved by the court. In re J.M., 89 A.3d

688, 692 (Pa.Super. 2014).

The juvenile court rejected K.N.Z.’s weight claim. It found Minor Child’s

testimony to be credible and consistent. Trial Ct. Op. at 7. The court observed

Minor Child did not waiver in her testimony that the events occurred during

her fourth-grade year and on the 904 bus. Id. at 4-5, 7. The court also

observed that the morning bus route and seating chart both confirmed the

two children rode the 904 bus when Minor Child was in fourth grade, during

the 2015-2016 school year. Id. at 6. The court acknowledged that the e-mail

from the Transportation Supervisor conflicted with Minor Child’s testimony

that she moved and switched buses during her fourth-grade year. It conceded

that the e-mail affords some support for K.N.Z.’s claim that the assaults could

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not have occurred during Minor Child’s fifth-grade year—the year she did

move and switch buses—because K.N.Z. did not ride the 904 bus that year.

Id. at 6-7. However, the court stated it did “not give [the e-mail] greater

weight than the other exhibits or the consistent testimony of the Minor Child”

and the conflict “did not undermine her otherwise credible and consistent

testimony.” Id. at 7. The court concluded that considering all of the exhibits

and testimony, the adjudication of delinquency was not “so contrary to the

evidence as to shock one’s sense of justice.” Id.

We perceive no abuse of discretion. The e-mail from the Supervisor of

Transportation, for which no foundation was laid, was but one piece of

evidence for consideration by the court. And, even assuming its contents are

true, it proves only that Minor Child was incorrect about which school year she

switched buses—it does not disprove that K.N.Z. had the opportunity to

commit the acts during the previous year, when the Minor Child was in fourth

grade and the two children rode the 904 bus together. We note that Minor

Child’s mother also testified that Minor Child had moved and changed buses

during her fourth-grade year, in contradiction with the e-mail. The resolution

of this conflict was squarely before the juvenile court as fact-finder, and on

this record, we will not disturb its ruling. In re J.M., 89 A.3d at 692.

We similarly find no merit to K.N.Z.’s other attacks on the weight of the

evidence. The court was free to disregard any evidence that conflicted with

Minor Child’s testimony regarding the place of her seat on the bus. It was not

required to believe Wilt’s testimony regarding how well she performed her job

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duties or that she enforced the seating chart she created. The court was also

permitted to rely on Minor Child’s identification of K.N.Z., and not defense

testimony as to which child was perceived or self-identified as “loud” or

“quiet.” Nor was the court required to accept Wilt’s testimony that she would

have seen the assaults while driving the bus, given her testimony that her

“bad” kids would sit in the back of the bus to evade her observation. The court

took Minor Child’s testimony as credible, and her testimony established the

means by which the assaults took place undetected. The conflicts in the

evidence do not render the juvenile court’s disposition of K.N.Z.’s weight claim

an abuse of discretion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/14/2022

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