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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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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

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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<J.u11ts of Aggravated

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



                                                          4



                                                                         _____         ,              ,,   .._..
                                                                                                                                 . ---
                                                                                                                   -----·--~--·---
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
