J-S46018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.J.J., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA
APPEAL OF: A.J.J., A MINOR
No. 183 MDA 2017
Appeal from the Dispositional Order January 13, 2017 In the Court of Common Pleas of Tioga County Juvenile Division at No(s): CP-59-JV-0000025-2016
BEFORE: BOWES, OLSON, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 06, 2017
Appellant, A.J.J., a minor, appeals from the dispositional order entered
in the Juvenile Division of the Court of Common Pleas of Tioga County,
following his adjudication of delinquency on two counts of aggravated
indecent assault.1 We affirm.
The juvenile court accurately set forth the relevant facts and
procedural history of this case in its opinion filed March 23, 2017.
Therefore, we adopt the court’s uncontested recitation as our own and shall
not restate them. See Juvenile Court Opinion, 3/23/17, at 1-3.
Appellant raises the following issue for our review:
____________________________________________
1 18 Pa.C.S.A. § 3125(a)(1).
* Former Justice specially assigned to the Superior Court. J-S46018-17
Did the [juvenile c]ourt err in finding that the Commonwealth met its burden of proving beyond a reasonable doubt each element of the offense of [a]ggravated [i]ndecent [a]ssault[?]
Appellant’s Brief at 7.
The issue included in Appellant’s brief expressly contests the
sufficiency of the evidence introduced by the Commonwealth. After a
thorough review of the record, the briefs of the parties, the applicable law,
and the well-reasoned opinion of the juvenile court, we conclude Appellant's
sufficiency challenge merits no relief. The court’s opinion adequately and
accurately addresses the issue. See Juvenile Court Opinion, 3/23/17, at 4-5
(crediting the victim’s testimony from the adjudicatory hearing that, on two
separate occasions, Appellant penetrated her vagina with his penis without
consent and without a good faith medical, hygienic, or law enforcement
purpose and further concluding that the victim’s testimony alone constituted
adequate grounds to sustain a conviction in a sexual assault case). Because
the juvenile court has prepared a precise and thorough assessment of
Appellant’s sufficiency claim, we adopt the court’s analysis as our own and
deny relief for the reason stated therein.
Our review on this matter does not end here, however, as we turn now
to Appellant’s assertion that his delinquency adjudications were contrary to
the weight of the evidence. Specifically, Appellant argues that the court
relied solely on the victim’s testimony and improperly overlooked that there
was an ongoing sexual relationship between himself and the victim, that the
-2- J-S46018-17
victim’s testimony expressed only her isolated recollection of relevant
events, that both Appellant and the victim continued their relationship after
the assaults, that the victim delayed reporting the incidents to police, and
that the Commonwealth failed to corroborate the events with third party
witnesses or physical evidence. Under these circumstances, Appellant
contends that his delinquency adjudications should shock one’s sense of
justice. See Appellant’s Brief at 12-13.
The following principles guide our review of Appellant’s weight claim.
“[T]he general rule in this Commonwealth is that a weight of the evidence claim is primarily addressed to the discretion of the judge who actually presided at trial.” Armbruster v. Horowitz, 813 A.2d 698, 702 (Pa. 2002); Commonwealth v. Edwards, 903 A.2d 1139, 1148 (Pa. 2006). In reviewing a trial court's adjudication of a weight of the evidence claim, “an appellate court determines whether the trial court abused its discretion based upon review of the record; its role is not to consider the underlying question in the first instance.” Commonwealth v. Blakeney, 946 A.2d 645, 653 (Pa. 2008). Thus, a weight of the evidence claim must be presented to the trial court so that it may address it in the first instance. Commonwealth v. Widmer, 689 A.2d 211, 212 (Pa. 1997)[; s]ee also Commonwealth v. Karkaria, 625 A.2d 1167, 1170 n.3 (Pa. 1993) (“An allegation that the verdict is against the ‘weight’ of the evidence is a matter to be resolved by the trial court.”).
Once a weight of the evidence claim has been presented to the trial court, it then reviews the evidence adduced at trial and determines whether “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” [Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)]. A trial court should award a new trial if the verdict of the fact finder “is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Id. Stated
-3- J-S46018-17
another way, “[a] weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice.” Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013). These principles have been deemed equally applicable to the adjudication of weight of the evidence challenges brought in juvenile court proceedings. McElrath v. Commonwealth, 592 A.2d 740, 745 (Pa. 1991).
In re: J.B., 106 A.3d 76, 94-95 (Pa. 2014) (parallel citations omitted).
Before we proceed to the substance of Appellant’s weight claim, we
are compelled to consider whether he sufficiently preserved this issue by
first raising it in the juvenile court.2 “The question of whether [an appellant]
waived appellate review of his weight-of-the-evidence claim is a question of
law, and, accordingly, our standard of review is plenary.” Id. at 95. While
the comment to Pa.R.Crim.P. 607 specifies that weight-of-the-evidence
claims in criminal proceedings are waived unless they are raised with the
trial court in a motion for a new trial, “the Pennsylvania Rules of Juvenile
Procedure have no counterpart requiring the same manner of preservation.”
In re: J.B., 106 A.3d at 91. Indeed, “the current Rules of Juvenile Court
Procedure—which ‘govern delinquency proceedings in all courts'—are utterly
silent as to how a weight-of-the-evidence claim must be presented to the
juvenile court so that it may rule on the claim in the first instance, which is ____________________________________________
2 We note that Appellant failed to include his weight claim in his statement of questions involved, as required by Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”).
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J-S46018-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN THE INTEREST OF: A.J.J., A MINOR IN THE SUPERIOR COURT OF PENNSYLVANIA
APPEAL OF: A.J.J., A MINOR
No. 183 MDA 2017
Appeal from the Dispositional Order January 13, 2017 In the Court of Common Pleas of Tioga County Juvenile Division at No(s): CP-59-JV-0000025-2016
BEFORE: BOWES, OLSON, JJ. and STEVENS, P.J.E.*
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 06, 2017
Appellant, A.J.J., a minor, appeals from the dispositional order entered
in the Juvenile Division of the Court of Common Pleas of Tioga County,
following his adjudication of delinquency on two counts of aggravated
indecent assault.1 We affirm.
The juvenile court accurately set forth the relevant facts and
procedural history of this case in its opinion filed March 23, 2017.
Therefore, we adopt the court’s uncontested recitation as our own and shall
not restate them. See Juvenile Court Opinion, 3/23/17, at 1-3.
Appellant raises the following issue for our review:
____________________________________________
1 18 Pa.C.S.A. § 3125(a)(1).
* Former Justice specially assigned to the Superior Court. J-S46018-17
Did the [juvenile c]ourt err in finding that the Commonwealth met its burden of proving beyond a reasonable doubt each element of the offense of [a]ggravated [i]ndecent [a]ssault[?]
Appellant’s Brief at 7.
The issue included in Appellant’s brief expressly contests the
sufficiency of the evidence introduced by the Commonwealth. After a
thorough review of the record, the briefs of the parties, the applicable law,
and the well-reasoned opinion of the juvenile court, we conclude Appellant's
sufficiency challenge merits no relief. The court’s opinion adequately and
accurately addresses the issue. See Juvenile Court Opinion, 3/23/17, at 4-5
(crediting the victim’s testimony from the adjudicatory hearing that, on two
separate occasions, Appellant penetrated her vagina with his penis without
consent and without a good faith medical, hygienic, or law enforcement
purpose and further concluding that the victim’s testimony alone constituted
adequate grounds to sustain a conviction in a sexual assault case). Because
the juvenile court has prepared a precise and thorough assessment of
Appellant’s sufficiency claim, we adopt the court’s analysis as our own and
deny relief for the reason stated therein.
Our review on this matter does not end here, however, as we turn now
to Appellant’s assertion that his delinquency adjudications were contrary to
the weight of the evidence. Specifically, Appellant argues that the court
relied solely on the victim’s testimony and improperly overlooked that there
was an ongoing sexual relationship between himself and the victim, that the
-2- J-S46018-17
victim’s testimony expressed only her isolated recollection of relevant
events, that both Appellant and the victim continued their relationship after
the assaults, that the victim delayed reporting the incidents to police, and
that the Commonwealth failed to corroborate the events with third party
witnesses or physical evidence. Under these circumstances, Appellant
contends that his delinquency adjudications should shock one’s sense of
justice. See Appellant’s Brief at 12-13.
The following principles guide our review of Appellant’s weight claim.
“[T]he general rule in this Commonwealth is that a weight of the evidence claim is primarily addressed to the discretion of the judge who actually presided at trial.” Armbruster v. Horowitz, 813 A.2d 698, 702 (Pa. 2002); Commonwealth v. Edwards, 903 A.2d 1139, 1148 (Pa. 2006). In reviewing a trial court's adjudication of a weight of the evidence claim, “an appellate court determines whether the trial court abused its discretion based upon review of the record; its role is not to consider the underlying question in the first instance.” Commonwealth v. Blakeney, 946 A.2d 645, 653 (Pa. 2008). Thus, a weight of the evidence claim must be presented to the trial court so that it may address it in the first instance. Commonwealth v. Widmer, 689 A.2d 211, 212 (Pa. 1997)[; s]ee also Commonwealth v. Karkaria, 625 A.2d 1167, 1170 n.3 (Pa. 1993) (“An allegation that the verdict is against the ‘weight’ of the evidence is a matter to be resolved by the trial court.”).
Once a weight of the evidence claim has been presented to the trial court, it then reviews the evidence adduced at trial and determines whether “notwithstanding all the facts, certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.” [Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)]. A trial court should award a new trial if the verdict of the fact finder “is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Id. Stated
-3- J-S46018-17
another way, “[a] weight of the evidence claim concedes that the evidence is sufficient to sustain the verdict, but seeks a new trial on the ground that the evidence was so one-sided or so weighted in favor of acquittal that a guilty verdict shocks one's sense of justice.” Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013). These principles have been deemed equally applicable to the adjudication of weight of the evidence challenges brought in juvenile court proceedings. McElrath v. Commonwealth, 592 A.2d 740, 745 (Pa. 1991).
In re: J.B., 106 A.3d 76, 94-95 (Pa. 2014) (parallel citations omitted).
Before we proceed to the substance of Appellant’s weight claim, we
are compelled to consider whether he sufficiently preserved this issue by
first raising it in the juvenile court.2 “The question of whether [an appellant]
waived appellate review of his weight-of-the-evidence claim is a question of
law, and, accordingly, our standard of review is plenary.” Id. at 95. While
the comment to Pa.R.Crim.P. 607 specifies that weight-of-the-evidence
claims in criminal proceedings are waived unless they are raised with the
trial court in a motion for a new trial, “the Pennsylvania Rules of Juvenile
Procedure have no counterpart requiring the same manner of preservation.”
In re: J.B., 106 A.3d at 91. Indeed, “the current Rules of Juvenile Court
Procedure—which ‘govern delinquency proceedings in all courts'—are utterly
silent as to how a weight-of-the-evidence claim must be presented to the
juvenile court so that it may rule on the claim in the first instance, which is ____________________________________________
2 We note that Appellant failed to include his weight claim in his statement of questions involved, as required by Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”). We shall overlook this omission, however, as it has not hampered our review.
-4- J-S46018-17
... a necessary prerequisite for appellate review.” Id. at 98 (footnote
omitted). Pa.R.J.C.P. 620(A)(2) governs the filing of what it expressly
designates as an “optional post-dispositional motion.” See Pa.R.J.C.P.
620(A)(2) (“Issues raised before or during the adjudicatory hearing shall be
deemed preserved for appeal whether or not the party elects to file a post-
dispositional motion on those issues.”). The relevant case law holds that
where a juvenile raises his weight claim for the first time in a concise
statement under Rule 1925, the claim is sufficiently preserved for purposes
of appellate review. See In re: J.B., 106 A.3d at 96-99 (declining to find
waiver where juvenile included weight claim in concise statement and trial
court considered the issue in its Rule 1925(a) opinion); see also In the
Interest of J.G., 145 A.3d 1179, 1187-1188 (Pa. Super. 2016).
It is uncontested that Appellant did not file post-dispositional motions.
Instead, Appellant referenced his challenge to the weight of the evidence for
the first time in his Rule 1925(b) statement and the juvenile court rejected
his claim in its Rule 1925(a) opinion, finding that the victim was more
credible than Appellant and that the victim’s testimony, standing alone, was
sufficient to sustain an adjudication. See Juvenile Court Opinion, 3/23/17,
at 3 and 5. Under these circumstances, we conclude that Appellant
-5- J-S46018-17
preserved his weight claim for purposes of appellate review. Hence, we
address the claim.3
Within the context of our limited review of challenges to the weight of
the evidence, and given the well-settled principle that we are to defer to the
juvenile court on issues of credibility, we are satisfied that this matter does
not warrant a new adjudicatory hearing. There is ample support in the
certified record for the findings and inferences drawn by the juvenile court.
In the absence of circumstances that disclose a palpable abuse of discretion,
we are without grounds to upset the challenged ruling and the trial judge's
reasons should prevail. See Clay, 64 A.3d at 1054–1055 (“[a] new trial
should not be granted because of a mere conflict in the testimony”).
Because the court acted well within the limits of its judicial discretion in
rejecting Appellant’s weight claim, the adjudications in this case do not
shock one’s sense of justice and we therefore conclude that Appellant’s
weight claim lacks merit.
3 We acknowledge the procedure followed by prior appellate courts that have remanded cases under similar circumstances to give the appellant the opportunity to file, nunc pro tunc, post-dispositional motions challenging the weight of the evidence. See In re: J.B., 106 A.3d at 99; see also In the Interest of J.G., 145 A.3d at 1188. We decline to follow that procedure in this instance. The facts of this case are very straightforward and the juvenile court has adequately explained its reasons for rejecting Appellant’s weight challenge. We need nothing more to undertake our assessment of the manner in which the juvenile court exercised its discretion.
-6- J-S46018-17
Because we rely upon the juvenile court’s opinion in deciding this case,
the parties are directed to attach a copy of the juvenile court’s March 23,
2017 opinion to any future filings regarding this appeal.
Order of disposition affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/6/2017
-7- Circulated 08/10/2017 03:16 PM
fN TH(:: rNTERESTOF :JN THE COUJf(OF COM.tvION PLE,"l;,:·
AJ.J. :Of' TrOGA COl).NTY, PENNSYLVANlA
:NO .. 25 JV2016 • ·~ • : ~ ' . • ":. 1. ~"'I "~I .( .. . T . y
: .. 'i. ·. :,}i_. ,,; • .-·.. .: •• ·'OPINION ur: . .,..i~~:!~.~~:· G:CiLL,·~ i. S· . . Thejuvenile, A.J.J., appeals this Court's Dispositional Order entered January 13, 20!7.
As setforth more fully below, that Order should be affirmed.
BACKGROUND
A.J.J. and the victim.KR, both high school students, began a dating relationship in.
April, 2015 .. Shortly thereafter they started a sexual relationship, Their dating relationship lasted
until the end ofAugust, 2015, They briefly continued a sexual rclationstnp af:1:¢1; their dating
relationship ended. Most of'the sexual contact between A.JJ. and K.R, during their relationship
was . consensual. There were ~ however ' two . occasions . when . . the .· contact . . was. non-consensual. . . . ·. ...
The first.non-consensual incident occurred sometime between July 15, 2015 and July 20.,
2015. This incident took place around two orthree in the-afternoon in the downstairs of the.
residence where K.R. resided with her parents. K.R. and A,J.J, were talking when AJ.J. begun
asking to have sexual intercourse. K,R,. responded thtit she did nor want to. Atthat pQint,A.J.J.
told K.R. to sit ori the.floor .. next . to him. . . . He .. then . .. . turned her around . . . . over ..on the . . couch . .. . and .
pushed her down with his forearm so she could not gi!t up .. K.R. kept saying "no, I don't want
to" and A.lJ. just told her to stop and.relax. K.R. was facing the. buck of the couch, she was bent
over the seat, and AJ..J. was. behind her. A.J.J. then proceeded to penetrate K.R.'s vagina with.
his penis and began having sexual intercourse.with her while K.R. told him to stop. K.R. was
crying at this point. K.R. 's aims were behind her and A.lJ, 's forearm was 011 her back. K R. ».
was crying during this time . and telling A.J .J, to stop. This went on for approximately twenty
i minutes. A.J.J. finallystopped becauseKk. was able to get.him off.of her when he went to take
her underwear off. .K.Ri'sfather was upstairs during.this-incident,
After the incident K.R, was crying and A..JJ. asked her why. K.R. told him why and
A.J.J. apologized and.said, 'Tm sorry, I didn't hear you." Thetwo continued to hang out the rest
ofthe day until.nine or ten o'clock, including having.dinnerwith k.R.'s parents.
Another nonconsensual . encounter . occurred .·. between . . the . . K.R. . . and.AiLl. . . . sometime . . .~.
between August I, 2015 and August 14, 2015 around three in the.afternoon. This incident again
took place in. the home K.It resides with her parents. This time K.R. and AJ .J. were upstairs
watching DVD;s and talkht~ while K.R.'s father was asleep downstairs. The incident. again
began with A.J .J. asking K.R. to have sexual intercourse and K.R. saying she. did not want to.
A.J J. then went around K.R. and laid on top of her. K.R. responded by saying get off and that
she was not doing that at that time. A.J.J. movedKR. 'sskirtupand then moved her underwear
to the side. He then penetrated K.R. 's vagina with his penis and had sexual intercourse with her;
She was able to push him ofher twice, The.first time.he j ustgot back on top of her and kept
going and the second time hi; stopped, During the incident A.J .J. told K.R. torelax and KR
kept saying stop.rio, get off me. The incident lasted. approximatelyten minutes. K:R. and A.J.J.
continued to hang out that day after the .incidentiook place.
Officer Stager of the Mansfield Borough Police Department was first norified of these
incidents on February 1, 2016. A peti tion Alleging Delinquency was filed by Tioga County
Juvenile Probation Officer Mary Jackson on July 13, 2016 alleging two C
Indecent Assault, a felony of the second degree in violation of 18 §.3125(A)(l ). The Court
adjudicated A.J.J. delinquent on the charges after a-hearing on September 9, 2016. Both K..R.
2 and A,J.J. testified at the adjudicatory hearing with A.J.J. denying the allegations. The only
other witness was. Officer Stager.
A dispositional hearing was set for December .\20 l 6 but was continued due tothe
illness of A..l.J. 's attorney and rescheduled for January 12, 2017. As aresult of the dispositional
hearing the Court placed A.J ,J. on probation with the Tioga County Juvenile Probation
Department. A.J.J. did hot file any post adjudication 01· post dispositional motions but he filed a
timely Notice of Appealand complied with the Court's. Order to file.a Pa. R.A.P. 1925(b)
Statement of Matters Complained of on Appeal.
ISSUES
In Appellant's Rule 1925(b) concise statement ofmatters complained upon on
appeal appellant states "[tjhe trial.court erred in finding that the Commonwealth met its burden
of proving beyond a.reasonable doubt that [AJ.J.] engaged in conduct Which, if committed by an
adult, would constitute acts of Aggravated Indecent Assault." The rest of Appellant's, statement
.sets out his version of the facts. The Court will consider Appellant's appeal as questioning both
the sufficiency and the weight ofthe evidence in the. case.
DISCUSSION
When ajuvenile challengesthe sufficiency of the evidence the question. is "whether the
evidence and al I reasonable inferences drawn therefrom, when viewed in the light most favorable
to the Commonwealth a..s the verdict winner, were sufficient to enable.the fact ..finder to find
every element ofthe crime charged beyond a reasonable doubt," In re J.M .. 89 A3d 688. 691
(Pa.Super. 20 l 4)(qttoting ln re T ..Oc, 836 A.2d 1003, l 005 (Pa.Super. 2003)). In a sexual assault
3 prosecution the testimony .of the victim, standing alone, is sufficient for an adjudication of
delinquency. In tJJ~..ln1~est of .l,l\e., 648 A..2d 28, 33. (Pa.St1per. 1994).
Here A,J.J. was alleged to have committed acts that ifcommitted by an adult would
constitute the crime of Aggravated Indecent Assault. A person commits Aggravated Indecent
Assault when a person "engages in the penetration, however.slight, of the genitals or anus ofa
complainant with a part of the person's body for any purpose other than good faith medical,
hygienic or law enforcement procedures" withour.the complainant's consent. H._[1.g,,C.S._§.
Jl25(a:i(l). K.R. testified at the adjudicatory hearing rhat.on two separate occasions AJ.J. penetrated her vagina with his penis without her consent. KR. also testified that A.J.J. had no
good faith medical, hygienic orlaw enforcement purpose for such action. As a victim's
testimony alone is enough to satisfy the sufficiency of the evidence requirement, the
Commonwealth . dearly . presented sufficient . evidence . . to uphold A.J.J. 's delinquency .
adj udication.
Generally, "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 credi bility a f witnesses."
~onimonwealth v..~..J.~J1r~~b 705 A.2d I 095, 109.8 (Pa.Super, 1997)( quoting Con1rnt1nwea!th v .
.Sim111Qn~, <;i62 A.2.d 62 t. 630 (Pa.Super: 1995)). The findings of thefactfinder will 1iot be
reversed unless it is. "so contrary to evidence tis to shock one's sense of justice.'." Id.
In the present case the Commonwealth called one witness, the victim K.R. The appellant
called two witnesses, the juvenile A.J . J. and Officer Stager. Officer Stager's testimony was
extremely brief nnd limited only to the date be was first contacted about the incidents and the
fad thathisv'Call Summary Report" does not indicate .. that K.R. said anything about her and
_____ , ,, .._.. . --- -----·--~--·--- AJ .J. going down stairs. The only evidence either side presented regarding the incidents in
question was the. testimony of the two individuals present at the time the incidents took place,
No physical evidence was presented. K~R. testi fled. that while the two were engaged in a dating
and consensual sexual relationship there were tWD separate incidents where A..JJ. penetrated her
vagina with his penis without.her consent as she told him to stop. A.J:.J. testified that these
incidents. did· not occur. As no other. evidence was put on by either side the case came down to a question of credibility between K.R; and A.J.J.
The Court, as the fact finder, was free to believe all, part, or none of the evidence
presented and to determine the credibility of the witnesses. [n that role, the Court found I<.R. 's testimony to be.more credible than A.J.J, 'sand her descriptions of what took place to be nurhful.
As the. victim's testimony alone is enough to uphold a conviction in sexual assault cases, no
evidence besides the testimony was put on, and the detcrniination K.R. 's testimony was more
credible than A.J .J. 's, the adj udication.of delinquency is not "so contrary lo evidence as to shock
.onc's sense. of justice." Therefore Appellant's weight of the evidence claim must fail,
CONCLUSION
For the foregoing reasons the. Court's Order adjudicating A.J.J. delinquent should be upheld.
By the Court,
ce. Anne K. Leete; Esq!/ Distrlct Attorney 5