J-S49009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

IN THE INTEREST OF: N.M.P., A MINOR              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA

                                                     No. 296 MDA 2015


       Appeal from the Dispositional Order Entered January 23, 2015
               In the Court of Common Pleas of Perry County
           Juvenile Division at No(s): CP-50-JV-0000019-2014


BEFORE: BENDER, P.J.E., ALLEN, J., and OLSON, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED AUGUST 25, 2015

      Appellant, N.M.P., a juvenile, appeals from the order of disposition,

entered following an adjudication of delinquency for the offense of terroristic

threats. Appellant raises several claims on appeal, including challenges to

the sufficiency and weight of the evidence to support his adjudication of

delinquency. After careful review, we reverse.

      In May of 2014, Appellant was charged with the crime of terroristic

threats, 18 Pa.C.S. § 2706, stemming from the following evidence, as

summarized by the juvenile court:

             [T]he victim testified that he heard from his girlfriend
      “again that [Appellant] was flirting with her” and he “knew she
      was uncomfortable with him.” On the day of the incident, the
      victim saw Appellant sitting at the same table as his girlfriend in
      class. He later encountered Appellant in the hallway where he
      told [Appellant] to “back off” his girlfriend before walking away
      to his next class. As the victim walked away[,] Appellant went
      into the bathroom where he met another student, [A.M.] [A.M.]
      testified that when Appellant entered he began hitting things
      such as the towel dispenser in anger. [A.M.] asked Appellant
      what was wrong and Appellant replied that [the victim] told
      [Appellant] to leave [the victim’s] girlfriend alone. Appellant
      commented that he was mad and after [A.M.] told him to calm
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      down, Appellant stated that he was going to bring a gun to
      school and shoot an individual in the green jacket. [A.M.]
      further testified that upon entering his seventh period [s]cience
      class, he noticed that [the victim] was wearing a green jacket.
      Upon further reflection, [A.M.] requested to go to the Office to
      report the bathroom incident.

Juvenile Court Opinion (JCO), 4/9/15, at 2-3 (unpaginated; citations to the

record omitted).

      On December 15, 2014, the juvenile court found, based on the above-

stated evidence, that Appellant committed the offense of terroristic threats.

On January 15, 2015, a second hearing was conducted to determine if

Appellant required treatment, supervision, or rehabilitation. After concluding

that Appellant did require further treatment, the juvenile court adjudicated

Appellant delinquent and imposed a disposition of probation and counseling

“until successfully discharged” by the designated counseling center.      N.T.,

1/15/15, at 18-19.     The court’s dispositional order was entered on the

docket on January 23, 2015.

      Appellant filed a timely notice of appeal, as well as a timely Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal.       Herein, he

states four issues for our review:

      A. Did the lower court commit error in finding that Appellant
      committed the act of Terroristic Threats where the evidence was
      insufficient to support the [juvenile] [c]ourt’s finding?

      B. Did the lower court commit error in adjudicating Appellant as
      a Delinquent Child where the evidence was insufficient to
      support the finding that Appellant is in need of treatment,
      supervision, or rehabilitation?




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      C. Did the lower court commit error in adjudicating Appellant
      delinquent when such determination was against the weight of
      the evidence?

      D. Did the lower court err by entering its finding that Appellant
      committed the act of Terroristic Threats [87] days after the
      conclusion of the adjudicatory hearing?

Appellant’s Brief at 10.

      Appellant’s first two issues present challenges to the sufficiency of the

evidence to support his adjudication of delinquency.

      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
      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).

      In Commonwealth v. M.W., 39 A.3d 958 (Pa. 2012), our Supreme

Court clarified that “the Juvenile Act requires a juvenile court to find that a

child has committed a delinquent act and that the child is in need of

treatment, supervision, or rehabilitation, before the court may enter an

adjudication of delinquency.” Id. at 964 (emphasis in original). If a court

determines the juvenile committed the delinquent act, but “is not in need of

treatment, supervision, or rehabilitation, it should dismiss the proceeding,

terminate jurisdiction, and discharge [the juvenile].” Id. at 966; see also



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42 Pa.C.S. § 6341(b) (“If the court finds that the child is not in need of

treatment, supervision or rehabilitation it shall dismiss the proceeding and

discharge the child….”).

      Here, Appellant first challenges the sufficiency of the evidence to

sustain the juvenile court’s finding that he committed the offense of

terroristic threats.     He also avers, in his second issue, that the evidence

failed to prove that he is in need of treatment, supervision, and/or

rehabilitation.    Because, for the reasons stated infra, we agree with

Appellant’s second claim, we need not address his first issue.

      After determining that Appellant committed the offense of terroristic

threats, the juvenile court conducted a hearing on January 15, 2015, to

assess whether he was in need of treatment, supervision, or rehabilitation.

At that proceeding, Appellant presented the testimony of Jacqueline

Spriggle, an outpatient therapist with Newport Counseling Center.                 N.T.,

1/15/15, at 6.     Ms. Spriggle testified that she had an office at Appellant’s

school, and she began counseling Appellant in 2011 when he relocated to

Pennsylvania      from   West    Virginia   and   “was   having   a   difficult   time

transitioning….” Id. at 7. Ms. Spriggle testified that Appellant also has been

diagnosed with Asperger’s Syndrome. Id. Ms. Spriggle counseled Appellant

weekly until 2013, when he “successfully completed treatment” and was

“discharged[.]”    Id. at 7-8.    However, approximately one month after the

incident in the present case, Ms. Spriggle began biweekly counseling for

Appellant.   Id. at 8.      Ms. Spriggle testified that she resumed counseling

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because “the school was pushing for [Appellant] to be in counseling, … and

he was having difficulty coping with the stress of being charged with this.”

Id.

      Ms. Spriggle was then asked “whether or not [Appellant] has an anger

problem[,]” to which she replied, “I don’t believe that he does.” Id. While

Ms. Spriggle did state that Appellant seems “approximately two years

younger” than his “chronological age[,]” she indicated that she does not feel

Appellant “needs any type of special treatment.”     Id. at 9.   Additionally,

when asked if she feels that Appellant “is in need of any supervision[,]” Ms.

Spriggle stated, “no, I don’t.” Id. When asked if she feels Appellant “is in

need of any rehabilitation[,]” Ms. Spriggle answered, “No. He’s actually very

emotionally stable.” Id. at 9-10.

      With this testimony, Appellant’s direct-examination of Ms. Spriggle

concluded.   The Commonwealth elected not to cross-examine.       Id. at 10.

However, the court then questioned Ms. Spriggle, as follows:

      THE COURT: Okay.         Well, if [Appellant] doesn’t need any
      rehabilitation or treatment, why is he still counseling with you?

      [Ms. Spriggle]: He was still experiencing stress related to this,
      and his lawyer thought it would be a good idea to have him as
      long as the Court would like him in counseling, but I don’t have
      any behavioral concerns.

      THE COURT: Okay. And was that as a result of your counseling
      or is that from day one?

      [Ms. Spriggle]: The result of counseling, and his family is very
      active in helping any recommendations, and they kept up with it
      after treatment.



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Id. at 10.     After this questioning by the court, Ms. Spriggle’s testimony

concluded. Appellant’s parents were then permitted to speak to the court,

and they essentially explained why they believe their son did not make the

alleged threat heard by A.M.

       At the close of the hearing, the court found that Appellant was “in

need of treatment, supervision, and/or rehabilitation….”       Id. at 18.     The

court explained its reasons for this finding, as follows:

       THE COURT: I said the problem I see with the whole thing is
       [that,] off and on[,] I think [Appellant] is going to need
       counseling any time there’s stressful situations in his life, and it
       gets better or not, and part of that is the Asperger’s. I mean,
       there’s some special conditions here. I mean, that’s the case
       that you’re going to have the rest of your life dealing with stress.
       It’s going to be the tough part with you. But the problem I get
       into, and that’s how this situation happens, you know, the issue
       today, and this is what your parents completely just miss, is not
       whether you are rightfully or wrongly confronted, it’s how you
       handled that situation. And that is the whole reason you’re here.
       Not whether they were wrong to begin with. They’re absolutely
       wrong for confronting you, but that’s not a crime. The crime is
       how you reacted to that.

             I’m impressed [by] the fact that you’ve been in counseling,
       you’re doing well. I think those situations can go up and down
       as the counselor said due to stress, whether it’s from the
       charges, whether it’s from kids accusing you of something,
       whether it’s how you or your family feel the school is treating
       you, those things are there. And that’s why I think there’s need
       of further treatment, because it’s going to be an ongoing thing,
       and I think that is clear today. Everything you’re asking for I
       begged to happen before it got to this point, and it didn’t,
       unfortunately for everybody involved.[1] But due to that ongoing
____________________________________________


1
  It appears that this sentence refers to the fact that the court believed
Appellant should have entered a consent decree in this case. The following
(Footnote Continued Next Page)


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         need for treatment, I’m adjudicating you delinquent. [I] [f]ind
         you’re in need of treatment, supervision and/or rehabilitation,
         and, therefore, I adjudicate you a Delinquent Child.

Id. at 17-18.

         On appeal, Appellant contends that the court erred in concluding that

he was in need of treatment, supervision, or rehabilitation based on Ms.

Spriggle’s testimony, which directly contradicted the court’s conclusion. We

are compelled to agree. “While it is true that the question of credibility in

juvenile cases, as in all cases, is for the judge hearing the case to decide, …

the record of the proceeding before the juvenile court must be legally and

factually adequate to sustain the findings of fact and the order of the court.

A record lacking such legal or factual basis requires a reversal.” In Interest

of Helmen, 327 A.2d 163, 167 (Pa. Super. 1974) (emphasis added). Here,

in determining that Appellant was in need of further treatment, the juvenile

court found that: (1) Appellant is “going to need counseling any time there’s

stressful situations in his life,” (2) Appellant is going to have a difficult time

dealing with stress for “the rest of [his] life[,]” and (3) Appellant’s difficulty

dealing with stress is “going to be an ongoing thing….”          N.T. at 17-18.

However, nothing in Ms. Spriggle’s testimony supports these findings by the

court.      Indeed, Ms. Spriggle said that Appellant is “very emotionally

                       _______________________
(Footnote Continued)

comment by the court, made at the hearing prior to Ms. Spriggle’s testifying,
demonstrates this point: “As far as a consent decree, I thought that was a
great idea to begin with in this case. I strongly recommended it. It was
refused.” N.T. at 5.



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stable[,]” and concluded that he is not in need of any supervision or

rehabilitation.   Id. at 9-10.    The Commonwealth did not present any

evidence to refute Ms. Spriggle’s testimony.

      We also must point out that at the start of the January 15, 2015

hearing, prior to Ms. Spriggle’s taking the stand, the court stated:

      THE COURT: I don’t plan on placing [Appellant] or anything
      along those lines, What I want to make sure of in this case is
      that he’s supervised in order to ensure that any counseling, all
      those things continue, he continues doing that, and I don’t think
      we’ll have any problems in this case. That’s what I look to do
      today just to give you a heads-up.

Id. at 5.   The court’s comments indicate that, even without hearing any

evidence, it had predetermined that Appellant required treatment, namely

continued counseling.

      Based on this record, we agree with Appellant that there was

insufficient evidence to support the juvenile court’s determination that he

was in need of treatment, supervision, or rehabilitation.     Accordingly, we

reverse the court’s order, entered January 23, 2015, adjudicating Appellant

delinquent and imposing a disposition of probation and counseling.     Based

on this decision, we need not address Appellant’s remaining issues.

      Order reversed.

      Judge Olson joins this memorandum.

      Judge Allen files a dissenting memorandum.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2015




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