J-S27009-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: R.S.A., A              :   IN THE SUPERIOR COURT OF
    MINOR                                      :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: R.S.A., A MINOR                 :       No. 3114 EDA 2015


            Appeal from the Dispositional Order September 18, 2015
             In the Court of Common Pleas of Philadelphia County
              Juvenile Division at No(s): CP-51-JV-1000068-2015


BEFORE: GANTMAN, P.J., OTT, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                              FILED JUNE 02, 2017

        Appellant, R.S.A., a minor, appeals from the dispositional order

entered in the Philadelphia County Court of Common Pleas, Juvenile

Division, following his adjudications of delinquency for involuntary deviate

sexual intercourse with a child (“IDSI”), sexual assault, and indecent

assault.1 We remand for further proceedings.

        In its opinion filed May 13, 2016, the Juvenile court accurately set

forth the relevant facts and procedural history of this case.2 Therefore, we

have no reason to restate them.


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1
    18 Pa.C.S.A. §§ 3123(b); 3124.1; 3126(a)(7), respectively.
2
  On September 18, 2015, the court adjudicated Appellant delinquent and
placed him on probation until further order of court. Additionally, the court
ordered Appellant to attend DelStar (an outpatient program for adolescents
who are adjudicated of a sexual offense), to undergo random drug screens,
(Footnote Continued Next Page)

_____________________________

*Retired Senior Judge assigned to the Superior Court.
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      Appellant raises the following issues for our review:

          WAS NOT THE EVIDENCE INSUFFICIENT FOR AN
          ADJUDICATION OF DELINQUENCY ON ALL CHARGES,
          INSOFAR AS THE EVIDENCE OF [APPELLANT’S] GUILT
          WAS SO UNRELIABLE AND CONTRADICTORY THAT IT WAS
          INCAPABLE OF SUPPORTING A DETERMINATION OF GUILT
          BEYOND A REASONABLE DOUBT?

          IN THE ALTERNATIVE, WAS NOT THE DETERMINATION OF
          GUILT AGAINST THE WEIGHT OF THE EVIDENCE TO SUCH
          A DEGREE AS TO SHOCK THE CONSCIENCE?

(Appellant’s Brief at 4).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Arthur E.

Grim, we conclude Appellant’s first issue merits no relief. The Juvenile court

opinion comprehensively discusses and properly disposes of that question.

(See Juvenile Court Opinion, filed May 13, 2016, at 8-9) (finding: thirteen-

year-old Appellant deceived seven-year-old Victim by luring her into

bathroom under false pretenses during another child’s birthday party;

Appellant told Victim to close her eyes and open her mouth so Appellant

could give Victim gum; after Victim complied, Appellant put his penis in

Victim’s mouth; Victim saw Appellant’s penis when she blinked her eyes;

Victim identified Appellant in court as her assailant; age of Victim as well as

circumstances of case precluded consent; Victim’s testimony was very

                       _______________________
(Footnote Continued)

to have no unsupervised contact with children under twelve years old, and to
be subject to a curfew.



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credible; any contradiction in record is result of young Victim not initially

knowing proper name for penis; Victim was clear throughout her testimony

which part of Appellant’s anatomy was involved in assault; Victim’s

testimony was consistent with her earlier statements to her teacher,

guidance    counselor, and mother;            Commonwealth presented sufficient

evidence to sustain Appellant’s adjudications of delinquency for IDSI with

child, sexual assault, and indecent assault).              Therefore, we conclude

Appellant’s first issue is meritless.

      Regarding Appellant’s second issue challenging the weight of the

evidence, we observe that generally, a weight claim must be preserved by a

motion for a new trial. See Pa.R.Crim.P. 607 and Comment (stating: “The

purpose of this rule is to make it clear that a challenge to the weight of the

evidence must be raised with the trial judge or it will be waived”).

      By    contrast,   the   Rules     of   Juvenile   Court   Procedure   governing

delinquency matters “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…a necessary prerequisite for appellate

review.”     In re J.B., 630 Pa. 124, 160, 106 A.3d 76, 98 (2014).

Specifically, Pennsylvania Rule of Juvenile Court Procedure 620 provides, in

pertinent part:

           Rule 620. Post-Dispositional Motions

           A. Optional Post-Dispositional Motion.


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             (1) The parties shall have the right to make a post-
          dispositional motion. All requests for relief from the court
          shall be stated with specificity and particularity, and shall
          be consolidated in the post-dispositional motion.

             (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.

Pa.R.J.C.P. 620(A). Thus, juveniles in delinquency matters face “procedural

rules [which make] optional the filing of a post-dispositional motion, and

which [do] not otherwise specify how a weight of the evidence claim [is] to

be presented in the first instance to the juvenile court in order to preserve it

for   appellate   review.”3       J.B., supra    at   160-61,   106   A.3d   at   98.

Consequently, the failure to preserve a weight-of-the-evidence challenge in

a post-dispositional motion does not result in automatic waiver of the claim

on appeal in juvenile delinquency matters. See id. (holding juvenile did not

waive challenge to weight of evidence where he failed to raise that claim in

____________________________________________


3
  Rule 620(A)(2) does not aid a juvenile in preserving a challenge to the
weight of the evidence because the juvenile cannot raise a weight claim until
after the adjudication of delinquency. J.B., supra at 156-57, 106 A.3d at
95-96 (explaining juvenile could not raise weight of evidence challenge in his
closing argument as it is matter of plain logic that claim that adjudication of
delinquency is against weight of evidence presupposes court has already
made final adjudication; closing arguments take place prior to final
adjudication and are geared toward convincing trier of fact that evidence
adduced at hearing failed to prove juvenile was delinquent of offenses
charged; compare weight of evidence challenge, which assumes evidence
was sufficient to adjudicate juvenile delinquent but requests court to
reassess its adjudication to determine whether certain facts of record are so
weighty that they warrant grant of new adjudicatory hearing).



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optional post-dispositional motion; finding of waiver in juvenile proceedings

has harsher consequences for juvenile than for similarly-situated criminal

defendant because juvenile cannot raise ineffective assistance of counsel for

waiver of weight claim under Post Conviction Relief Act (“PCRA”), as PCRA

does not apply to juvenile proceedings; absent this avenue of collateral relief

there is stronger reason to decline to impose waiver for non-preservation of

weight claim; although juvenile raised challenge to weight of evidence in

Rule 1925(b) statement, and court addressed issue in its Rule 1925(a)

opinion, that fact does not cure deficiency as there likely will be times, under

similar circumstances, where court will either review weight challenge in its

Rule 1925(a) opinion in cursory fashion or fail to address claim at all;

principles of fundamental justice and sound reason necessitate remand for

filing of post-dispositional motion nunc pro tunc to raise weight of evidence

claim).   See also Interest of J.G., 145 A.3d 1179 (Pa.Super. 2016)

(declining to waive weight challenge where juvenile did not file post-

dispositional motion and presented weight of evidence claim for first time in

Rule 1925(b) statement; under In re J.B., Court held remand was

necessary to permit juvenile to file post-dispositional motion nunc pro tunc

challenging weight of evidence).

      Instantly, Appellant did not file a post-dispositional motion. Like the

cases of In re J.B. and Interest of J.G., Appellant raised his challenge to

the weight of the evidence for the first time in his Rule 1925(b) statement.


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The Juvenile court addressed Appellant’s weight claim in in its Rule 1925(a)

opinion in a cursory fashion after a detailed analysis concerning Appellant’s

challenge to the sufficiency of the evidence. Following prevailing precedent,

we will now remand the case to give Appellant the opportunity to file a post-

dispositional motion nunc pro tunc challenging the weight of the evidence.

See In re J.B., supra; Interest of J.G., supra. Accordingly, we conclude

the evidence presented in this case was sufficient to sustain the delinquency

adjudication, but we remand for further proceedings limited to Appellant’s

challenge to the weight of the evidence.

     Case remanded for further proceedings. Jurisdiction is relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2017




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