In the matter of: M.A. Appeal of: M.A.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE MATTER OF: M.A., A JUVENILE IN THE SUPERIOR COURT OF PENNSYLVANIA

APPEAL OF: M.A., A JUVENILE No. 1450 EDA 2013

Appeal from the Dispositional Order May 3, 2013 In the Court of Common Pleas of Montgomery County Juvenile Division at No(s): CP-46-JV-0000570-2012

BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J. MEMORANDUM BY PANELLA, J.: FILED JULY 29, 2014 Appellant, M.A., a juvenile, appeals from the dispositional order entered May 3, 2013, after the juvenile court adjudicated him delinquent for committing harassment1 and ethnic intimidation.2 We affirm.

In in the 9th grade at Perkiomen Valley High School. On March 15, 2013, Appellant came into health class with three swastikas drawn on his left hand and sat down next to the victim, who is Jewish. Thereafter, the victim left to go to the bathroom. When the victim returned, he observed that someone had drawn swastikas on every page of his health class packet. When

confronted by school officials, Appellant admitted that he drew the swastikas

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1 18 Pa.C.S.A. § 2709(a)(4).

2 18 Pa.C.S.A. § 2710.

aware that the swastika was the symbol used by Adolf Hitler and that it was used during a period in which millions of Jewish people were killed, but that he had forgotten the victim was Jewish. Appellant received a 5-day in- school suspension because of the incident. On the first day of the in-school suspension, school officials called the state police because students began to harass the victim.

On March 27, 2013, Appellant was charged with ethnic intimidation, criminal mischief,3 and two counts of harassment. On March 29, 2013, a detention hearing was conducted, after which the juvenile court judge determined that Appellant was a danger to the community and ordered him detained pending the adjudication hearing. On April 12, 2013, an adjudication hearing was conducted, after which the juvenile court adjudicated Appellant delinquent on the charges of harassment and ethnic intimidation. This timely appeal followed.

On appeal, Appellant raises the following issues for our review:

announcing in open court that she was Jewish and proceeded to find the juvenile

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3 18 Pa.C.S.A. § 3304.

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Did the juvenile court err when it denied the juvenile the adjudication and sanctions for lying to challenge his credibility?

delinquent with respect to the offences of ethnic intimidation and harassment supported by legally sufficient evidence of record?

Appellant first claims that the juvenile court judge violated his due process rights when she announced in open court that she was Jewish and proceeded to detain Appellant prior to his adjudication hearing. 4 Appellant f bias towards him

Preliminarily, we note that Appellant did not raise an objection to the ther at the time they were made during the

Status filed April 2, 2013. Rather, he raises this claim for the first time on appeal. Pennsylvania Rule of Appellate Procedure 302(a) provides that

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repeatedly challenges his detention, he assures this Court in a footnote that -

detention decis n.2. We therefore limit our discussion of this issue to that of the juvenile

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Coulter v. Ramsden, --- A.3d ---, ---, 2014 WL 2787216 at *8 (Pa. Super., filed June 20, 2014) (citation omitted). As Appellant failed to raise his claim of alleged juvenile court bias and deprivation of due process rights in the court below, we are constrained to conclude that this issue is waived.

Even if we were to address this issue, however, it would not merit

or prejudice:

So, at the end of the day, when all the facts come out from both sides

You should only know, really know about the Holocaust and to

drawing it and bringing it to bear with respect to someone who has suffered in their heritage.

There were

millions of people that were not Jewish that were devastated by the Holocaust, murdered, slaughtered, and affected and impacted by the Holocaust.

. Not at all.

N.T., Detention Hearing, 3/29/13 at 18-19 (emphasis added). Clearly, the juvenile court judge took great pains to make it clear that her heritage was not a factor in detaining Appellant. There is simply no evidentiary support s issue is wholly without merit.

Appellant next argues that the juvenile court erred in granting the

disciplinary record for impeachment purposes pursuant to Pa.R.E. 608(b)(1).

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Id.

court and will be reversed only upon a showing that the trial court clearly In re F.P., 878 A.2d 91, 93 (Pa. Super. 2005)

(citation omitted). Pennsylvania Rule of Evidence 608(b)(1) provides that

supported by cross-examination or extrinsic evidence concerning specific

(relating to evidence of conviction of crime). Pa.R.E. 608(b)(1).

Appellant argues that while the high school disciplinary report constitutes 608(b)(1), the juvenile court should have admitted the report under Rule

any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be admitted

may be used to impeach the credibility of a witness if conviction of the

609(d).

In essence, Appellant would have us equate a disciplinary action for lying initiated by a school administrator to an adjudication of delinquency for

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an offense involving dishonesty or false statement. This argument is meritless on its face. Rule 609 clearly limits the type of evidence with which o convictions or

adjudications of delinquency. See, e.g., Commonwealth v. Chmiel, 585 Pa. 547, 889 A.2d 501, 534-534 (2005) (trial court properly precluded defense from questioning witness on a burglary he had admitted committing, but for which he was never convicted). The use of any other specific instance of conduct for impeachment purposes is strictly prohibited under Pa.R.E. 608(b)(1). Appellant cannot and does not seriously argue that a high school disciplinary report constitutes either a conviction or adjudication of delinquency. Therefore, the trial court properly precluded the introduction of the report for impeachment purposes.

abridged his constitutional right to confront and cross-examine adverse

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paradoxical proposition that the exclusion of patently inadmissible evidence constitutes a violation of his constitutional rights. We decline to countenance such a notion here.

Lastly, Appellant argues that there was insufficient evidence to support his adjudication of delinquency on the charges of harassment and ethnic

When a challenge to the sufficiency of the evidence is made, our task is to determine whether the evidence and all reasonable inferences drawn therefrom, when viewed in the light most

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favorable to the Commonwealth as the verdict winner, were sufficient to enable the fact-finder to find every element of the crime charged beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. Moreover, we must defer to the credibility determinations of the [juvenile] court, as these are within the sole province of the finder of fact. The trier of fact, while passing upon the credibility of witnesses, is free to believe all, part, or none of the evidence.

In re J.M., 89 A.3d 688, 691 (Pa. Super. 2014) (citation omitted).

The Crimes Code defines the offense of harassment, as is relevant to this case, as follows:

A person commits the crime of harassment when, with the intent

communicates to or about such other person any lewd, lascivious, threatening or obscene words, language, drawings or caricatures[.]

18 Pa.C.S.A. § 2709(a)(4).

Commonwealth v. Cox, 72 A.3d 719, 721 (Pa. Super. 2013) (citation omitted)

papers. It is also apparent that, in this context, the swastika was utilized as a threatening symbol to an individual of the Jewish faith. 5 Appellant testified

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5 Appellant claims that the swastika is not a threatening symbol but is

completely disingenuous. Notably, Appellant offers no explanation for

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school in September 2012. The principal at Perkiomen High School testified that Appellant told her following the incident that he was aware the swastika was a symbol of the Nazi Party and that millions of Jewish people were killed under Nazi rule. Id. at 15. Thus, Appellant knew of the history of the swastika and communicated to the victim the threatening drawing. Additionally, the totality of the circumstances permits the inference that

harass, annoy or alarm the victim. The victim testified that in December 2012 the Appellant looked at him and spat on the floor of the classroom during a discussion of Hanukkah in English class. Id. at 39-40. This testimony not only establishes that Appellant was aware that J.L. was Jewish, but is also suggestive that he harbored animosity towards the Jewish faith and J.L. in particular.6 Based on the foregoing, we do not hesitate to find the evidence was sufficient to support the adjudication of harassment.

We are adjudication of ethnic intimidation. Section 2710 of the Criminal Code

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6 Although Appellant offered testimony contrary to that of the victim at the adjudication hearing, we reiterate that the juvenile court was free to believe all, part, or none of the evid determinations. See In re B.T., 82 A.3d 431, 435 (Pa. Super. 2013) (where

ill not be

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intention toward the race ... of another individual or group of individuals, he commits an offense under any other provision of this article ... with respect

a conviction for ethnic intimidation, the Commonwealth must prove that the def Commonwealth v. Miller, 613 Pa.

584, 594, 35 A.3d 1206, 1212 (2012). In this regard, Appellant argues only that if the adjudication for the predicate offense here, harassment cannot stand, than the ethnic intimidation adjudication must also fail. As we have already determined that the adjudication of harassment was proper, this claim fails.

Dispositional order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/29/2014