In the Interest of: A.M., Appeal of: A.M.

• Court: Superior Court of Pennsylvania
• Decided: August 25, 2014
• Docket: 1647 EDA 2012
• Status: Unpublished

Opinion

J-S33035-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF A.M. IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: A.M.

No. 1647 EDA 2012

Appeal from the Dispositional Order dated May 2, 2012 In the Court of Common Pleas of Philadelphia County Juvenile Division at No: CP-51-JV-0000584-2012

BEFORE: FORD ELLIOTT, P.J.E., OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.: FILED AUGUST 25, 2014

Appellant A.M. appeals from the May 2, 2012, dispositional order of

the Court of Common Pleas of Philadelphia County (juvenile court), which

adjudicated her delinquent of harassment under Section 2709(a)(1), (2),

and (4) of the Crimes Code (Code), 18 Pa.C.S. § 2709(a)(1), (2), and (4). 1

Upon review, we affirm.

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adjudication of delinquency (the equivalent of a finding of guilt in criminal matters), but rather is the dispositional order (the equivalent of the judgment of sentence in criminal matters). In re J.D., 798 A.2d 210, 211 n.1 (Pa. Super. 2002). We have corrected the caption accordingly. J-S33035-14

The facts underlying this appeal are undisputed. On February 8, 2012,

a delinquency petition2 was filed against Appellant, alleging: On or around 2/8/2012, at or near 5901 Malvern Avenue (Beeber Middle School) in the City of Philadelphia, [Appellant] knowingly, intentionally, recklessly caused/attempted to cause bodily injury to the complainant, [School Police Officer] Johnnie Baker, by slapping his hand and pushing him into a wall, thereby causing injury including [back] pain. [Appellant] also threatened the complainant.

Delinquency Petition, 2/8/12, ¶4. Appellant was charged with terroristic

threats with intent to terrorize another, harassment, simple assault,

recklessly endangering another person, and aggravated assault. 3 On May 2,

2012, the juvenile court conducted an adjudicatory hearing at which only the

finished up an arrest of another student, a narcotics arrest, in which

-5.

Explaining how Appellant had attempted to interfere with the arrest, he

testified: As I was scuffling with the suspect, [Appellant] kept bursting into the room screaming for me to let suspect go, then asking him several times to give her his phone or his phone number so she could call his people to come up to the school. She was put out of the room several times. She kept bursting into the room. She had my foot on the door while I was scuffling with the suspect. Philadelphia Police showed up and assisted me in removing her from the area. After we got that arrest taken care of, [Appellant] was taken to the in-house room which is ____________________________________________

2 Unlike criminal prosecutions, juvenile court proceedings are initiated by a petition pursuant to Section 6334(a) of the Juvenile Act, 42 Pa.C.S.A. § 6334(a), rather than by indictment, information, or criminal complaint. 3 18 Pa.C.S. §§ 2706(a)(1), 2709(a)(1), 2701(a), 2705, and 2702(a), respectively.

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downstairs. The arrest was taking place on the second floor in Room 215. She was sent to the in-house room on the first floor which is Room 106, where she was to remain. She kept coming up to the second floor, where she was not to be. I asked her several times to return. She would not return. I kept blocking her from going into Room 216. She it, she was cussing. She would move one way, I stopped her from going just standing in front of her. Finally, she slapped my hand down, took both her hands and shoved me against the wall. As I went to go place her under arrest, she told me I better not come to work tomorrow. God. After I was able to get her handcuffed down to the room which is the school police office, 107B, I started to do the paperwork, she was sitting down. She got up, ran out of the room, ran through the marble hallway in the front of the buildings, ran through the auditorium, around the back of the bu was encouraging children, but they were stopping me from catching up to her. I was unable to locate her at the time. Finally, I got a call from the house director who indicated she was back in Room 216, where I came and was able to apprehend her again. She was in the room again making a large disturbance.

Id. at 5-

suggestion, the Commonwealth moved to amend the harassment charge

contained in the delinquency petition to add Subsection (4) of Section

2709(a) of the Code. As the hearing transcript reveals: The [juvenile court]: I find this to be harassment. I find her guilty of harassment. What do you have? How is that one going to be graded, as a summary?

summary offense. The [juvenile court]: Why?

summary offense. The [juvenile court]: Well, if it was charged as a summary offense

2709 A1, a strike, shove, kick. Under 2709 C1, that is the

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grading section, Your Honor, an offense under subsection A1 constitutes a summary offense under the plain language. The [juvenile court]: You may respond. [Commonwealth]: Subsection A1 is a summary offense, Your Honor; but, typically, a lesser included offense would be included in the lead charge.

[Commonwealth]: The Crimes Code; right? The [juvenile court]: Yes, A1.

summary offense. The [juvenile court]: I did find her guilty of A1. [Commonwealth]: Then it is a summary. The [juvenile court]:

engages in a course of conduct or repeatedly commits acts which serve no legitimate purpose, I find her guilty of that too. [Commonwealth]: I would also ask for A4, Your Honor, communicates threating or obscene words. The [juvenile court]: And I find her guilty of 4. Anything else?

The [juvenile court]: Why? What about it?

be harassment, she has to be doing it to harass, annoy, or alarm

The [juvenile court]: Wait. On 4 it says communicates to or about such other person any lewd, lascivious, threatening, or obscene words, language, drawings, or characters. He said

The [juvenile court

offense in A, before any of the subsections, says that it has to be done with the intent to harass someone. e been a lawyer all my life, pretty near all of my life, and there are sometimes

the Crimes Code to the point that what she did say that what she did in that school was illegal,

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could, I would guilty. I found her not guilty of everything I could find her not

Id. at 19-23 (emphasis added). The juvenile court adjudicated Appellant

delinquent under Section 2709(a)(1), (2), and (4) and dismissed the

remaining charges.4 Appellant filed a Pa.R.A.P. 1925(b) statement of errors

of complained of on appeal, in which she alleged, inter alia, that the juvenile

court erred in adjudicating her delinquent for harassment under Section

2709(a)(4) of the Code, a third-degree misdemeanor, when she was

charged with harassment only under Section 2709(a)(1), a summary

offense. Disagreeing with her argument, the juvenile court concluded in its

summary of her alleged delinquent behavior as contained in the

4 Section 2709(a) provides in relevant part: A person commits the crime of harassment when, with intent to harass, annoy or alarm another, the person: (1) strikes, shoves, kicks or otherwise subjects the other person to physical contact, or attempts or threatens to do the same; (2) follows the other person in or about a public place or places; ... (4) communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures[.]

18 Pa.C.S. § 2709(a).

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juvenile court reasoned: [A]s indicated in the attached [delinquency] [p]etition the alleged acts included allegations that [Appellant] threatened the complainant. These allegations unquestionably would suggest a finding of guilty under Section 2709(a)(4) which requires proof that a person, with the intent to harass, annoy or alarm another person, communicates to such other person in any threatening words. This [c]ourt found beyond a reasonable doubt that Appellant made a threat to the complainant by stating that he better not come to work the next day.

Id. at 3.

On appeal,5 Appellant argues only that the juvenile court erred as a

[her] guilty of harassment under [Section 2709(a)(4)], a misdemeanor of

the third degree, where the [delinquency] petition filed against her only

charged her with harassment under [Section 2709(a)(1)], graded as a

al notice of the charges, guaranteed by the Sixth ____________________________________________

5 Our standard of review of dispositional orders is well- Act grants broad discretion to the court when determining an appropriate disposition. We will not disturb a disposition absent a manifest abuse of In the Interest of R.D., 44 A.3d 657, 664 (Pa. Super. 2012), appeal denied, 56 A.3d 398 (Pa. 2012) (quoting In the Interest of R.D.R., 876 A.2d 1009, 1013 (Pa. Super. 2005)). An abuse of discretion

bias, or ill- Commonwealth v. Rodriguez, 81 A.3d 103, 106 (Pa. Super. 2013) (quotation omitted).

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Amendment to the Federal Constitution and by Article I, Section 9 of the

Id. at 14. Specifically, she argues

never put on notice that she could be adjudicated of harassment as a

Id. at 15.

At the outset, based upon our review of the record, we note that

Appellant has failed to preserve this issue for appellate review. As the

hearing transcript indicates, Appellant failed to challenge before the trial

harassment under Section 2709(a)(4) on constitutional grounds. Rather,

Appellant challenged only the resulting delinquency adjudication on the basis

remarked at the hearing: I would simply say, Your Honor, for it to be harassment, she has to be doing it to harass, annoy, or alarm another person. I would argu

her mouth quickly. ....

before any of the subsections, says that it has to be done with the intent to harass someone.

N.T., 5/2/13, at 21-22. Further, the record indicates that Appellant, for the

first time, raised the constitutional (due process) issues in her Rule 1925(b)

statement. It is well-settled that issues not raised before the trial court

cannot be advanced for the first time on appeal. See Pa.R.A.P. 302(a). Issue preservation is foundational to proper appellate review . . . . By requiring that an issue be considered waived if raised for the first time on appeal, our courts ensure that the trial court that initially hears a dispute has had an opportunity to consider the issue. This jurisprudential mandate is also grounded upon

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the principle that a trial court . . . must be given the opportunity to correct its errors as early as possible. Related thereto, we have explained in detail the importance of this preservation requirement as it advances the orderly and efficient use of our judicial resources. Finally, concepts of fairness and expense to the parties are implicated as well.

In re F.C. III, 2 A.3d 1201, 1212 (Pa. 2010) (citations omitted). Thus,

Commonwealth v. Kohan, 825 A.2d

702, 706 (Pa. Super. 2003). As in this case, even if the trial court decides

complained of on appeal, such issue is still not properly preserved for

appellate review. See Commonwealth v. Melendez-Rodriguez, 856 A.2d

1278, 1287-89 (Pa. Super. 2004) (en banc). Nonetheless, because Appellee

does not raise the issue of waiver in its brief, we do not reject as waived

In support of her argument that her delinquency adjudication under

Section 2709(a)(4) be set aside, Appellant chiefly relies on Commonwealth

, 449 A.2d 642 (Pa. Super. 1982). We, however, conclude that

such reliance is misplaced because the instant case is distinguishable from

. In O

third degree because the information only charged him with disorderly

Id. at 643. As we explained in : A purported variance between the indictment and the offense could mislead the defendant at trial, involves an element of prepare his defense, precludes the defendant from anticipating the

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the defendant. Generally stated, the requirement is that a defendant be given clear notice of the charges against him so that he can properly prepare a defense.

Id. (internal citations and quotation marks omitted). Thus, we concluded

because the appellant was not charged with disorderly conduct as a

misdemeanor of third degree, and no facts suggesting the same were

alleged in the information, he lacked the requisite notice to prepare his

defense. See id. at 644. Specifically, we reasoned that the difference in

the potential penalty between disorderly conduct as a summary offense and

a third- tial that had [the] appellant been

aware from the trial inception that the jury would be at liberty to convict him

Id.

Instantly, although Appellant may not have been specifically aware of

the fact that she would be adjudicated delinquent for harassment under

Section 2709(a)(4) of the Code (a third-degree misdemeanor), sufficient

facts were contained in the delinquency petition indicating that she was

subject to harassment under Section 2709(a)(4). In particular, as the

juvenile court found, the delinquency petition alleged that Appellant

threatened the complainant, i.e.

-3.

M

impeach [Officer Baker] through the statement he gave to the police

regarding the allegation that [Appellant] communicated any threatening

e notice of a potential

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delinquency adjudication for harassment under Section 2709(a)(4). Id.

Thus, based on the evidence of record, we conclude that Appellant was

sufficiently aware of the facts necessary to adjudicate her delinquent under

Section 2709(a)(4). But see Commonwealth v. Bricker, 882 A.2d 1008,

1020 (Pa. Super. 2005) (concluding the appellant was prejudiced because

information, [as a result of which the] [a]ppellant did not have knowledge of

In any event, even if we had determined that Appellant lacked notice

of a possible delinquency adjudication under Section 2709(a)(4), we still

would have to determine whether Appellant was prejudiced by such

adjudication. In Commonwealth v. Page, 965 A.2d 1212 (Pa. Super.

2009), appeal denied, 74 A.3d 125 (Pa. 2013), we explained: Pursuant to Pennsylvania Rule of Criminal Procedure 564, an t in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as [6]

6 We find the reasoning in Page instructive and apropos to the instant case. Particularly, Rule 334 of the Pennsylvania Rules of Juvenile Court Procedure is substantially similar to Pa.R.Crim.P. 564. Like Pa.R.Crim.P. 564, Rule 334 provides in relevant part: A. Amendment. (1) The court shall allow a petition to be amended when there is a defect in: (a) form; (b) the description of the offense; (c) the description of any person or property; or (Footnote Continued Next Page)

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Pa.R.Crim.P. 564. The purpose of this rule is t defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of Commonwealth v. Sinclair, 897 A.2d 1218, 1221 (Pa. Super. 2006); Commonwealth v. Hoke, 928 A.2d 300, 303 (Pa. Super. 2007). The test to be applied when evaluating a challenge to an amended information was set forth in [] Bricker, 882 A.2d [at] 1019 [] (citation omitted), as follows: Whether the crimes specified in the original indictment or information involve the same basic elements and evolved out of the same factual situation as the crimes specified in the amended indictment or information. If so, then the defendant is deemed to have been placed on notice regarding his alleged criminal conduct. If, however, the amended provision alleges a different set of events, or defenses to the amended crime are materially different from the elements or defenses to the crime originally charged, such that the defendant would be prejudiced by the change, then the amendment is not permitted. Relief is warranted only when the amendment to the information prejudices a defendant. Commonwealth v. Roser, 914 A.2d 447, 454 (Pa. Super. 2006), appeal denied, [] 927 A.2d 624 (Pa. 2007); Sinclair, 897 A.2d at 1223. Factors to be considered when determining whether Appellant was prejudiced amendment changes the factual scenario; whether new facts, previously unknown to appellant, were added; whether the description of the charges changed; whether the amendment necessitated a change in defense strategy; and whether the timing of the request for the amendment allowed for ample notice and preparation by appellant. Roser, 914 A.2d at 454; Sinclair, 897 A.2d at 1223.

Page, 965 A.2d at 122-24 (emphasis added). Here, with the above

_______________________ (Footnote Continued)

(d) the date alleged. (2) The court shall not allow a petition to be amended if the petition alleges a different set of events or offenses, where the elements or defenses are materially different from the elements or defenses to the offense originally petitioned. Pa.R.J.C.P. 334(A) (emphasis added).

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add harassment under Section 2709(a)(4) of the Code was not prejudicial to

Appellant. In fact, we observe that, in her brief, Appellant has failed to

allege any harm or prejudice that she has suffered as a result of her

delinquency adjudication under Section 2709(a)(4). Regardless, because

her adjudication under Section 2709(a)(4) arose from the same set of

events and offenses (harassment), we necessarily would conclude Appellant

has failed to demonstrate that her delinquency adjudication for harassment

under Section 2709(a)(4) of the Code was prejudicial. Accordingly, the

juvenile court did not err in adjudicating her delinquent under Section

2709(a)(4), a third-degree misdemeanor.

Dispositional order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/25/2014

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