In the Int. of: R.H., Appeal of: R.H.

• Court: Superior Court of Pennsylvania
• Decided: November 19, 2019
• Docket: 2339 EDA 2018
• Status: Unpublished

Opinion

J-A17009-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: R.H., A : IN THE SUPERIOR COURT OF MINOR : PENNSYLVANIA : : APPEAL OF: R.H., A MINOR : : : : : No. 2339 EDA 2018

Appeal from the Order Entered July 16, 2018 In the Court of Common Pleas of Philadelphia County Juvenile Division at No(s): CP-51-JV-0002187-2017

BEFORE: PANELLA, P.J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.: FILED NOVEMBER 19, 2019

R.H., a minor, appeals from the July 16, 2018 dispositional order

entered in the Court of Common Pleas of Philadelphia County, following his

adjudication of delinquency for indecent assault, 18 Pa. C.S.A. § 3126(a)(1),

and harassment, 18 Pa. C.S.A. § 2709(a)(1). In this appeal, R.H. presents a

challenge to the sufficiency of the evidence. After careful review, we affirm.

At Strawberry Mansion High School in Philadelphia, PA, R.H., a 16-year

old student, abruptly left his English class during an exam and without

permission. Victim, a first-year teacher, notified the school’s administration

that R.H. left her classroom.

Shortly thereafter, R.H. attempted to reenter the classroom and Victim

informed him that he was not allowed to return to class. Disobeying her

instruction, R.H. physically forced his way into the classroom by shoving

Victim away from the door. Once inside, he circled the classroom’s perimeter J-A17009-19

for a short period. He then proceeded to the front of the classroom, near the

door, to where Victim was standing. Victim was holding a clipboard away from

her body at chest level. Before leaving the classroom, R.H. approached Victim

and reached his hand underneath her clipboard, touching the right side of her

breast for approximately two seconds.

R.H. then left the classroom. Victim closed the door behind R.H. as he

exited. Thereafter, Victim told a nearby staff member that R.H. touched her

inappropriately.

R.H. was arrested and charged with indecent assault and harassment.

At the conclusion of the adjudication hearing, the trial court, acting as the

fact-finder, adjudicated R.H. delinquent for harassment and indecent assault.

After a dispositional hearing, the trial court entered an order placing R.H. at

the Glen Mills School for Boys. This timely appeal followed.

R.H.’s sole challenge on appeal is to the sufficiency of the evidence

underlying his conviction for indecent assault. R.H. argues that the touching

here, although involving Victim’s breast, lacked a sexual component. See

Appellant’s Brief, at 7. He argues that his impertinent act was done out of

defiance, rather than for the purpose of sexual gratification. See id. As such,

R.H. concludes that the evidence was insufficient to sustain his adjudication

for indecent assault, and therefore the judgment should be reversed. See id.,

at 10. We disagree.

Our standard of review for a challenge to the sufficiency of the evidence

is to determine whether, when viewed in a light most favorable to the verdict

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winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the fact-finder to find every element of the crime beyond a

reasonable doubt. See Commonwealth v. Dale, 836 A.2d 150, 152 (Pa.

Super. 2003). “The Commonwealth may sustain its burden of proving every

element of the crime beyond a reasonable doubt by means of wholly

circumstantial evidence.” Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa.

Super. 2007) (citation omitted).

“The facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). Any doubt

raised as to the defendant’s guilt is to be resolved by the trier of fact. See id.

“As an appellate court, we do not assess credibility nor do we assign weight

to any of the testimony of record.” Commonwealth v. Kinney, 863 A.2d

581, 584 (Pa. Super. 2004) (citation omitted). Therefore, we will not disturb

the verdict “unless the evidence is so weak and inconclusive that as a matter

of law no probability of fact may be drawn from the combined circumstances.”

Bruce, 916 A.2d at 661 (citation omitted). Furthermore, a mere conflict in

the testimony of the witness does not render the evidence insufficient because

it is within the province of the fact finder to determine the weight to be given

to the testimony and to believe all, part, or none of the evidence. See

Commonwealth v. Baskerville, 681 A.2d 195, 200 (Pa. Super. 1996).

To sustain a conviction for indecent assault, the Commonwealth must

prove that R.H. had “indecent contact with the [Victim] . . . without [] [her]

consent.” 18 Pa. C.S.A. § 3126(a)(1). Indecent contact is defined as “[a]ny

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touching of the sexual or other intimate parts of the person for the purpose of

arousing or gratifying sexual desire, in any person.” 18 Pa. C.S.A. § 3101.

Here, we discern no error in the trial court’s conclusion that R.H. was

delinquent of indecent assault. Based on the certified record, it is evident that

R.H. had non-consensual contact with Victim’s right breast. See N.T., Hearing,

03/14/18, at 9-10. Moreover, the evidence supports the trial court’s

conclusion that R.H. touched Victim’s breast to arouse sexual gratification

because he targeted an intimate part of her body. See Trial Court Opinion,

10/9/18, at 3. The evidence supports an inference that R.H. intentionally

targeted an intimate part of the victim, as R.H. had to reach around a clipboard

to touch the Victim’s breast. See N.T., Hearing, 3/14/18, at 11.

While R.H.’s interpretation of the evidence is not inherently

unreasonable, the court, sitting as fact-finder, was free to find otherwise. See

Commonwealth v. McClintic, 851 A.2d 214 (Pa.Super. 2004), rev’d on

other grounds, 909 A.2d 1241 (Pa. 2006) (holding that a burglar’s intentional

grab and pinch of a victim’s breast was sufficient to allow a jury to conclude

the touching was for the purpose of sexual gratification). Therefore, we

conclude the evidence was sufficient to sustain the order adjudicating R.H.

delinquent.

Order affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/19/19

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